2009 Fundamental Right Chapter that was thrown in to dustbin by Rajapaksha regime
SUNDAY, DECEMBER 30, 2012
Following a decision of the Inter-Ministerial Committee on Human Rights, the implementing arm of the Permanent Standing Committee on Human Rights, a Committee chaired by Dr. Jayampathy Wickramaratne was appointed by the then Minister of Disaster Management and Human Rights to make proposals for a new Bill of Rights to replace the present chapter on fundamental rights in the Constitution.The report of the Committee and the proposed Bill of Rights was handed over to Hon. Mahinda Samarasinghe, then Minister of Disaster Management and Human Rights, in November 2009 and I was later told that the same had been handed over to the Presidential Secretariat. Nothing was heard about it thereafter.
The Committee was appointed by the Hon. Minister of Disaster Management and Human Rights, following a decision of the Inter-Ministerial Committee on Human Rights, the implementing arm of the Permanent Standing Committee on Human Rights. The Ministry of Disaster Management and Human Rights and the Ministry of Constitutional Affairs were tasked with supporting the Committee.
Background
At the Presidential Elections held in 2005, His Excellency Mahinda Rajapaksa made a pledge in his election manifesto, the Mahinda Chinthana, as follows:
“Steps will be taken to include “The Charter of Rights” into the Constitution based on the Declaration of the United Nations and other international treaties to uphold and protect social, cultural, political, economic and civil rights of all Sri Lankans.”
It was in accordance with the above pledge that the Committee was appointed to make proposals for such a Charter of Rights. When the Committee met the Hon. Minister of Disaster Management and Human Rights soon after its appointment, the Hon. Minister clarified that what was expected from the Committee was a draft chapter to replace the chapter on fundamental rights in the present Constitution.
Sub-Committees
The Committee divided itself to six sub-Committees and invited several specialists to serve in the sub-Committees. The six sub-Committees were:
Socio - Economic and Environmental Rights (Chair: Dr. Deepika Udagama)
Women, Children and Marginalized Groups (Chair: Mrs. Jezima Ismail)
Criminal Justice (Chair: Mr. Uditha Egalahewa)
Groups Rights ((Chair: Dr. Devanesan Nesiah)
Civil and Political Rights (Chair: Mr. V.T. Thamilmaran)
Enforcement (Chair: Mr. Javid Yusuf)
The reports of the sub-Committees were carefully considered by the Committee. The Committee’s burden was greatly lessened by the excellent work done by the sub-Committees. A list of members of the sub-Committees is annexed.
Sri Lanka’s international obligations and contemporary developments
The Committee took note of the contents of the Universal Declaration of Human Rights and the several international human rights instruments to which Sri Lanka is a party. Among them are -
International Covenant on Economic, Social and Cultural Rights (ICESCR)
International Covenant on Civil and Political Rights (ICCPR)
International Convention on the Elimination of All Forms of Racial Discrimination (CERD)
Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW)
Convention on the Rights of the Child (CRC)
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT)
As mandated, the Committee has endeavoured to make its proposals based on Sri Lanka’s international obligations on human rights. The Committee also took note of developments in other countries and Constitutions that have modern Bills of Rights, especially in developing countries.
The proposed chapter on fundamental rights and other relevant provisions is annexed to this report.
Civil and political rights
It has been proposed that the right to human dignity, the inherent right to life, the right to recognition as a person before the law and the security of the person be recognized as fundamental rights. The scope of many rights declared in the present Constitution has been enlarged.
Regarding the death penalty, the Committee recommends its abolition. The Committee took note of the fact that no person has been executed in Sri Lanka since 1975 and that in both 2007 and 2008, Sri Lanka voted at the United Nations in favour of resolutions calling for a moratorium on executions as a step towards the ultimate abolition of the death penalty. The UN resolutions emphasized that the death penalty undermines human dignity, that there is no conclusive evidence of the deterrent value of the death penalty and that any miscarriage or failure of justice in the implementation of the death penalty is irreversible and irreparable.
The Committee is not unmindful of public concerns that the crime rate in Sri Lanka is on the increase and that some persons convicted of grave crimes and sentenced to life imprisonment or long terms come out of prison quite early. The solution to this is judicial control of parole. The Committee recommends that in respect of those who are sentenced for long periods of imprisonment, legal provision should be made for the sentencing judge to make order that the offender’s term of imprisonment should not be reduced unless authorized by the court in the circumstances and manner and to the extent provided by law.
In the famous case of Makwanyane, the South African Constitutional Court stated that the greatest deterrent to crime is not the death penalty but “the likelihood that offenders will be apprehended, convicted and punished. It is that which is lacking in our criminal justice system".
The Committee has also recommended far-reaching provisions relating to personal liberty and rights relating to criminal procedure to bring rights recognized by the Constitution up to international minimum standards.
It has been proposed that the freedom to hold opinions and rights of access to information, the right to privacy and family life and the right to ownership of property be included.
In regard to the freedom to manifest religion, the Supreme Court has held that the right to propagate one’s religion is not included in the freedom to manifest religion as recognized in the Constitution, unlike in the Indian Constitution which expressly recognizes such right. All religions have spread by propagation and the Committee is of the view that such a right should be expressly recognized. However, there are concerns that the freedom to manifest religion is being misused to unethically convert persons to other religions. The International Covenant on Civil and Political Rights takes note of unethical conversions and declares in Article 18 that no person shall be subject to coercion which would impair the freedom to have or to adopt a religion or belief of such person’s choice. The Committee has recommended the inclusion of a similar provision to assuage concerns that the freedom to manifest religion could be misused.
Family rights, children’s rights, social and economic rights
Read more »
