The Human Rights Commission of Sri Lanka has proposed to change the Article 16 of the constitution of Sri Lanka, which says that all written and unwritten law that existed prior to the 1978 Constitution is ‘valid and operative’ even if they are ‘inconsistent’ with fundamental rights granted to all citizens.
Here is the brief statement by the HRC-SL.
The Human Rights Commission of Sri Lanka, having considered various representation on the above and also Sri Lanka’s international human rights obligations, recommends that the following principles guide the current constitutional reform process:
“The HRCSL is of the view that the future Constitution of Sri Lanka must recognize the principle of supremacy of the Constitution. All written and customary laws will be invalid to the extent of inconsistency with the Constitution of Sri Lanka.
An appeal to change the article 16 of the constitution of Sri Lanka
Article 16(1) is a clause in the Fundamental Rights chapter of the 1978 Constitution of Sri Lanka. It says that all written and unwritten law that existed prior to the 1978 Constitution is ‘valid and operative’ even if they are ‘inconsistent’ with fundamental rights granted to all citizens. This means that if any of the over 600 written and unwritten laws (which were in existence before 1978) infringes or violates a person’s fundamental rights then these violations cannot be challenged.
Article 16(1) of the present Constitution is highly problematic because it supersedes the Constitution and fails to guarantee equality and non-discrimination for all people of Sri Lanka. There are many groups of Sri Lankans who are affected due to this provision in the current constitution including persons with disabilities, sex workers, LGBTIQ and minority women and children.
We appeal to the Honorable Prime Minister, members of the Steering Committee on Constitutional Reform and elected leaders of Sri Lanka, to ensure that the new Constitution of Sri Lanka is the supreme law of the land and that the fundamental rights guaranteed are available to all people of Sri Lanka unconditionally. We demand that the new Constitution not leave out any Sri Lankan from the fundamental rights protection it confers for any reason.
Keeping Article 16(1) in its current state means that the Constitutional reform process fails to ensure that many groups of people are protected against violations of human rights, gender equality and fundamental rights in everyday matters of personal choice, family, social, cultural and economic life.
Keeping Article 16(1) means discriminatory laws will continue to have effect under the new constitutional order. For those Sri Lankans who are discriminated by these laws – the new constitution will be no different from the existing one, and will fail them yet again.
Therefore we urge that Article 16(1) is repealed to ensure that no written or unwritten law will stand in the way of full realization of fundamental rights by all people in Sri Lankan.
If the new Constitution is to be inclusive, rights-based and progressive, then the only way forward is for the Constitution to ensure equality for all regardless of age, gender, sexual orientation, disability, ethnicity or religion.