Human Rights Commission of Sri Lanka: PROPOSALS FOR CONSTITUTIONAL REFORM.
Preface.
The HRCSL is of the view that deepening constitutional protection of human rights requires much more than the incorporation of a substantively rich constitutional Bill of Rights into a future constitution. Two critically important dimensions that require attention in the reform process are:
- a) the guaranteeing of a sound system of separation of powers and checks and balances; and
- b) strong regulation of the public security regime
Specific Proposals
- Constitutional Principles
Foundational constitutional principles must be articulated either in the preamble to the constitution or as a substantive provision:
- Sovereignty of the people should be foundation of governance
- Transparency and accountability of governance
- Supremacy of the constitution
- Respect for pluralism, equality of dignity and inherent human rights of the people as individuals and as groups
- Respect for religious freedom of all
- Respect for social justice
- Power sharing
- Protection of the rights of future generations with special emphasis on environmental protection including protection of all animal species
2.Bill of Rights:
The HRCSL endorses the Draft Charter of Rights (attached) drafted by a Sub-Committee appointed by Minister Mahinda Samarasinghe the Chair of then Inter-Ministerial Committee on Human Rights in 2006 and completed in 2009. It is endorsed subject to the following amendments and those necessitated by the repeal of the 1978 Constitution: Constitutional Reform Proposals-2016
Further strengthen the non-discrimination clause by adding the ground of sexual identity. The HRCSL received many representations in regard to the need to include ‘sexual orientation’, ‘sexual identity’ and ‘disability’ as prohibited grounds of discrimination. The first and the last and many other grounds such as ‘age’ and ‘maternity’ have already been included in the Draft Charter. The clause should be clearly articulated in an open manner as required by our international obligations—“…no discrimination shall be permitted on grounds such as…”
- Recognize the right to be free from enforced disappearances.
- Recognize the right to legal aid or the broader right of access to justice.
- Include a positive obligation of the State to introduce affirmative action measures in instances of historical injustice and underrepresentation in various sectors of public life
- Horizontal obligations of private parties for abuse of fundamental rights in appropriate situations
- Fundamental rights jurisdiction must be decentralized to appropriate regional courts to make access to justice easy
- CCPR Act, No. 56 of 2007 must be repealed and rights therein must be incorporated into a future Bill of Rights. There must be no gradation of human rights.
- All rights guaranteed by the Bill of Rights must be entrenched. The diminution (lessening) or revocation (removal) of any of such rights should require a referendum in addition to adoption by a special majority in parliament. An alternative is to recognize a constitutional Basic Structure Doctrine that does not permit the amendment of fundamental rights.
- Interpretation of the Bill of Rights should give primacy to protection of human dignity and equal rights; should necessarily take into account the spirit and objectives of International Human Rights Law; and Directive Principles of State Policy.
3.Ensure a strong system of checks and balances:
- The Constitutional Council shall consist of a majority of members from among respected citizens than of political representatives; social diversity must be represented on the Council
- Independence of the judiciary must be enhanced by strengthening the Judicial Services Commission. The JSC must have among its members respected retired justices and retired members of the official and unofficial Bar and also academics Providing for specific procedure by legislation for removal of judges that complies with principles of natural justice
- Ensuring judicial review of legislation is essential. Review should be with prospective (future) effect. Pre-legislative review also should be retained.
4.Public Security Regime:
- Should necessarily be in line with Sri Lanka’s international human rights obligations (Article 4 of the International Covenant on Civil and Political Rights)
- A state of emergency could be declared only when the ‘life of the nation is threatened’
- Judicial review of a declaration of a State of Emergency must be guaranteed
- Similarly, judicial review of emergency regulations and emergency orders must be expressly provided for
- If a state of emergency continues for more than six consecutive months, Parliament must approve its further extension by a special majority
- The HRCSL endorses provisions in the Draft Charter of Rights (above) on derogation of rights during periods of emergency
5.International Human Rights Treaties:
- The HRCSL recommends a process for human rights treaty ratification in accordance with its mandate, while recognizing that the recommendation could be of general application.
- The executive must inform Parliament of its intention to ratify international human rights treaties. Parliament must approve by resolution such ratification. Such resolution must be deemed to be an undertaking by Parliament of its intention to approve enabling legislation.
- The government must be bound to present enabling legislation within three months of ratification. If enabling legislation is not adopted within a year of ratification, courts should be authorized to give judicial recognition to the substantive rights in the ratified treaty.
6. Human Rights Commission of Sri Lanka
- The Commission is set up under Act No. 21 of 1996. However, the appointment of Commissioners is dealt with under the Nineteenth Amendment to the 1978 Constitution. It is recommended that the HRCSL (as should all independent Commissions) be recognized in a future constitution as a constitutionally established body. Its powers and functions and the duty of public authorities to comply with its recommendations should be stipulated in the Constitution.
- The HRCSL is currently studying its current legal framework in order to make recommendations for improvement.
7. Linguistic Accessibility
- The HRCSL strongly recommends that the future Constitution be drafted and translated using simple language so as to enable the citizenry to read and access its provisions easily. It is a right of the citizens to know what their Basic Law says. That is of fundamental importance to constitution-building and in legitimizing constitutional governance.
Read full report including the draft of Bill of Rights as a PDF here :Proposals for Constitutional Reform by HRC in English