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Sunday, June 16, 2024

New Constitution, How to make It a Path to Fundamental Rights

by Professor S. Sarath Mathilal De Silva.

The present Government’s decision to obtain views of the public in the constitutional making process is highly commendable. In case the adoption of a new constitution as promised by the government is not forthcoming, the incorporation of a improved fundamental rights Chapter to the existing Constitution of 1978 is still highly recommended.

In modern times, fundamental human rights are sought to be recognized and protected also by the incorporation of Bills of Rights in written Constitutions. The rights and freedoms declared in the 1972 Constitution were mainly civil and political. The Constitution however, did not provide for a specific mechanism to enforce the Bill of Right in that Constitution. The fundamental rights are declared in Chapter III of the 1978 Constitution. Most of such fundamental rights are civil and political rights. A special machinery for their enforcement was set up with the Supreme Court having the sole and exclusive jurisdiction to adjudicate on fundamental rights violation which is phraseworthy fact compared to the non availability of such special mechanism under the 1972 Constitution.

However, one basic drawback relating to fundamental rights Chapter under the 1978 Constitution is that most of the social, economic and cultural rights found in International Bills of Right are incorporated in the non enforceable Chapter VI of the Constitution – Directive Principles of State Policy. The same defect was apparent under the 1972 Constitution where Chapter V: Principles of State Policy were unenforceable in Courts. For example, under the present Constitution, right to education is not a fundamental right. However, right to education is one among several Economic, Social and Cultural Rights (ESC) protected under Articles 22-27 of the Universal Declaration of Human Rights (UDHR) of 1948. The International Covenant on Economic, Social and Cultural Rights (ICESCR), of 1966, further elaborates the enforceable ESC rights in the International Sphere , which Sri Lanka has also ratified.

However, this defect have been partly rectified by the application of equality provisions found in the Fundamental Rights Chapter of the 1978 Constitution, by the Judicial creativity. In order to fully realize the right to education, for a example it must be suitably incorporated in to the enforceable fundamental rights chapter in the proposed constitution.


Under the fundamental rights Chapter of the present Constitution, rights of the children, women and the disabled are protected marginally under Article 12(4) of the equality provisions. This is totally inadequate in today’s circumstances and such rights as broadly defined by the relevant international instruments be suitably incorporated as enforceable rights under the Fundamental Rights Chapter of the new Constitution. Women’s Charter and the Children’s Charter may be suitably followed in this endeavour. Here apart from the political and civil rights such rights as rights within the family, right to education and training, right to economic activity and benefits, right to have care and nutrition, right to protection from social discrimination and right to protection from gender based violence may be focused on towards their true realization. The rights of the Vaddha’s need also be incorporated in terms of the relevant international instruments. In finding a suitable constitutional framework for human rights, the 1996 South African Constitution serves as a good example. It is a model Constitution which contains both civil and political right as well as economic, social and cultural rights. Right to information, right to access justice are also provided with.

At present FR violations are directed against the State. However, FR violations do occur for which private actors are also responsible and currently statute law is applicable in such cases. Our Supreme Court in Faiz v A.G in 1995, has held that liability for infringements extends not only to public officers but even to private individuals.

Accordingly, the act of a private individual would render him liable, if in the circumstances that act is done with the authority of the executive: such authority transforms an otherwise purely private act into executive or administrative action; such authority may be expressed or implied. It is necessary to broadly define in the FR chapter in the Constitution. (i) fundamental rights to cover for example, right to healthy environment (ii) perpetrators within the FR regime in the Constitution and (iii) remedies granted by the Judiciary.

Right to life

One of the contentious issues regarding the fundamental rights Chapter of the 1978 constitution is that it does not expressly mention the right to life. It has therefore sometimes been argued that there is no such right. However, in 2003 the Supreme Court in the case of K. D. Sriyani Silva v C. Iddamalgoda and Others upheld a claim to compensation by the widow and the child of a man who had been assaulted to death during police custody. The basis of the action was that man’s fundamental rights under Article 11 (freedom from torture) and 13(2) (wrongful deprivation of personal liberty) had been infringed, and since he was no longer alive to claim the compensation that would have been due to him, the respondent should be required pay that compensation to his next of kin, namely his widow and the child.

In fact, the right to life as set out in Article 21 of the Indian Constitution is linked to liberty and not to the socio-economic quality of life. The latter aspect was brought into its ambit, principally by Bhagwathi J, by relating it to the Directive Principles of State Policy in the Indian Constitution.

However, in Sri Lanka this lacuna, has to some extent been filled by the creative use of Article 12(1) which guarantees equality before the law and equal protection of the law. This Article, sometimes combined with Articles 14 (1) (g) and 14(1) (h) has been successfully invoked by petitioners facing the threat of large scale pollution (Bulankulama and Others v Secretary, Ministry of Industrial development and Others (2000) (Eppawala case)), inequitable water transfers and degradation of rivers and banks. Therefore the right to life is necessary to be included into the proposed fundamental rights Chapter in the broadest sense to cover the quality of life.

CBK's 2000 Constitutional draft was much better human rights chapter
CBK’s 2000 Constitutional draft was much better human rights chapter

The 2000 Draft Constitution sought to completely rewrite the Fundamental Rights Chapter which is useful to be considered. Its approach had four salient features:

1. It placed the right to life firmly at the top of the fundamental right chapter.

2. It fine tuned some of the existing rights.

3. It added a number of other rights not previously included in the fundamental rights chapter e.g., group rights, children rights and social rights.

4. Its set out the permitted restrictions on each right separately, as part of the constitutional article containing that right, instead of resort into an omnibus clause at the end of the chapter as it is presently contained in Article 15 of the Constitution.

In addition, some of the legal procedures presently governing arrest and detention of persons, which are set out in the Code of Criminal Procedure Act and other laws, were expressly included in the Draft Constitution, whereas the present Constitution only refers to them obliquely by use of the phrase ‘in accordance with procedure established by law’. The significance of this difference is that ‘procedure established by law can be changed by Act of Parliament passed with a simple majority, whereas changing a provision of the Constitution requires a two-third majority and sometimes also a referendum.

In setting out the permitted restrictions on each fundamental right at the end of relevant Article, the 2000 Draft meaningfully followed the Indian Constitution, which is absent in our Constitution.

The use of FR provisions for public interest litigation

The concept of public interest litigation has broadened the role of law. This has occasioned legal remedies to be made available to all sections of the community. The Indian Supreme Court has revitalized their legal system and given a dimension by the introduction of public interest litigation. Article 32 of the Indian Constitution provides the right to move the Supreme Court by appropriate proceedings for the enforcement of fundamental rights. This article has been used as the gateway to public interest litigation in India. Under article 32, the rule of locus standi has been liberalized and the Supreme Court has entertained public interest litigation on behalf of a class of people who by reason of poverty, were unable to approach the Supreme Court for relief.

In India today even social action groups and individuals can bring action on behalf of others whose fundamental rights have been violated.

In Sri Lanka the relevant Article 126(2) of the Constitution has restricted access to jurisdiction to two categories of persons. For the first place, any person who alleges that his or her fundamental rights have been infringed or are about to be infringed by executive or administrative action, must himself or by an Attorney-at-Law on his behalf file an action. The Supreme Court has interpreted this article literally. Later the rules of the Supreme Court have considerably mitigated this hardship. However, the Sri Lankan Constitution needs amendments to Article 126(2) and also the introduction of the right to life through an article similar to the Indian Constitution where the courts were able to give a wider interpretation and to grant access to violations of environment and living conditions and similar violations.

Hence the 2000 Draft Constitution proposed to allow for fundamental rights actions to be brought by individual or groups on behalf of persons whose physical, social or economical disability renders them incapable of instituting proceedings on their own making the FR jurisdiction similar to the writ jurisdiction of the Court of Appeal.

Laws that infringed fundamental rights

The fundamental rights provisions of the Constitution are to some extent diluted by article 16(1) which states that ‘All existing written law and unwritten law shall be valid and operative notwithstanding any inconsistence with the preceding provisions of this (fundamental rights) Chapter’. As the present Constitution was adopted only in 1978, this leaves a large number of laws enacted during colonial and post Independence times outside the ambit of fundamental rights.

A number of such laws are in fact inconsistent with one or more fundamental rights. In particular, women’s rights groups have highlighted gender discrimination in the laws of inheritance governing the ethnic communities as well as under the Land Development Ordinance, for example, governing succession to grants of State land.

However, the overriding objection that can be taken into Article 16(1) is that it seriously dilutes the supremacy of Constitution. In India and South Africa, for instance, it is the opposite rules that applies namely, that if any pre existing law is found to be inconsistent with the Constitution, the law will be void to the extent of such inconsistency.

The Draft 2000 Constitution retained the principles set out in Article 16(1) of the present Constitution, subject only to a duty on the part of the President, within three months of the commencement of the Constitution, to appoint a Commission to examine all existing written and unwritten law and report as to whether any such law is consistent with the provisions of the Constitution. The only duty cast on the President thereafter was to lay such report before Parliament, in terms of Article 28 of the Draft Constitution.

The Law Commission of Sri Lanka commented adversely on this provision in a report submitted in November 2000. The Commission was of the view that Article 28 of the 2000 Draft negates the supremacy of the Constitution and perpetuates one of the most unsatisfactory features of the 1978 Constitution.

A connected issue is whether there should be a time limit for challenging new laws. Under the present Constitution a proposed law officially referred as a ‘Bill’ may be challenged for inconsistency with any provision of the Constitution within one week of the Bill being placed on the Order Paper of Parliament. This requirement calls for considerable vigilance on the part of the public, has experience as shown that the more controversial a law is, the less advance publicity it is likely to be given by the Government. It also means that such challenge has to be made before the law is passed. Hence only inconsistencies with the Constitution that are clear on the face of the law are likely to be challenged. If an inconsistency becomes evident only when the law is put into operation, it is too late to challenge it. These difficulties are compounded by time limit of three weeks given to the Supreme Court to hear and determine the matter which period may be reduced to 24 hours in the case of a Bill that is certified by the Cabinet of Ministers as being ‘a urgent in the national interest’.

The 2000 Draft Constitution proposed to allow post-enactment challenges to laws up to two years after their enactment, if the question of such inconsistency arose in the course of legal proceedings. The Law Commission in its report referred to above, dealt with this issue as well, and its comments, although made with reference to the 2000 draft, are if anything even more relevant to the present Constitution:

“While a limitation of time should be placed on a right of a citizen to challenge the validity of an Act of Parliament, no such limitation should be placed on the reviewability of an Act or provision of an Act that arises in the course of proceedings, for it is a matter of common knowledge among lawyers that the defects of legislation are manifested when the laws are applied to concrete circumstances. This may, in the case of a particular Act, not take place for sometime. There is no valid reason to impose a limitation of time on matters arising during proceedings. Of course, a declaration of invalidity will not …… affect anything previously done there under”.

It is proposed to amend the current one month time limit for filing fundamental rights and public interest litigation. A period of six months is preferable. Whatever the time limit is say, ‘six months’ it should begin running from the time the person could reasonably be said to have had the physical and mental ability to file the petition, taking into account all the facts and circumstances of the situation.

Expand jurisdiction of lower courts

The Supreme Court and High Courts should have concurrent jurisdiction on matters of fundamental rights and public interest litigation except in the areas where (i) the respondents are government Ministers (ii) the legality of laws and regulations are challenged (iii) government policy decisions are involved and (iv) the respondents are members of the judiciary.

In the four areas of above, the Supreme Court must be vested with exclusive jurisdiction. The protection of the laws, specially when they concern fundamental rights and public interest matters, should be brought closer to the people. A concern for these matters should also pervade a maximum of the judicial structures. However, where very weighty and sensitive matters are concerned and affect the entire nation and untoward pressures can be broad to bear upon the lower judiciary, the exclusive jurisdiction must be retained by the Supreme Court, it is also worth noting that in India and South Africa both HC and Superior courts selectively vested with FR jurisdictions.

Fundamental duties

Fundamental human rights are inalienable rights of the people. However, according to law rights and duties are two sides of a coin. Therefore while asserting the fundamental rights of the people, people themselves have fundamental duties among themselves and to society they live. The 1978 Constitution rightly provides for a set of fundamental duties for people, under Article 28 of the Constitution.

In conclusion while it is essential to strengthen fundamental rights in the proposed fundamental rights Chapter in the Constitution, it is also necessary to retain ‘Fundamental Duties’ as enshrined in the Article 28 of the present Constitution, in the proposed Constitution, to secure proper balance between fundamental rights and fundamental duties.

(Professor S. Sarath Mathilal De Silva is  a Retired Professor in Legal Studies, University of Sri Jayawardenepura and  Attorney- at-Law)

– Courtesy Daily News


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