Dr. Prathiba Mahanamahewa
ne of the key proposals in the current Constitution Reform process is to strengthen the Fundamental Rights (FR) chapter in the Constitution. Fundamental rights are judicially enforceable. However activists point out that the Chapter is too restrictive, and that it does not serve the purpose intended of a fundamental rights chapter. Only a limited number of rights are guaranteed. The restrictions posed in the exercise of these rights are too broad, that it has prevented people from receiving redress. Former Human Rights Commissioner Dr.Prathiba Mahanamahewa spoke about the lacunas in the current Fundamental Rights (FR) chapter, issues in the implementation mechanism and practical application.
According to him democratic countries follow the social contract theory expounded by John Locke, Thomas Hobbes and Rousseau. “They mainly discussed the rights and liabilities of the ruler and the citizens. We developed that contract to a Constitution. It has gone forward to constitutionalism,” he said.
He added that traditional constitutions revolved around the powers and liabilities of the executive, 
legislature and judiciary. “Before the Second World War, we did not have a fundamental rights chapter in our constitutions. Fundamental Rights were looked at by the judiciary. In the Soulbury Constitution of 1947 there was a significant provision namely Article 29 which guaranteed minority rights and religions.”
He further remarked that since the introduction of the Universal Declaration of Human Rights (UDHR) there was a dire need to have a written constitution as rulers could not be trusted. “We can’t trust state institutions,” he said.
Recommendations to strengthen the FR chapter
The 1972 Constitution respects the 30 rights found in the UDHR. “But the only weakness was the implementation mechanism. But under the 1978 constitution the mechanism is included but many rights have been taken off. This has been done purposely,” pointed out Dr. Mahanamahewa. He further noted that if the rights subsequently removed by the current constitution had been included deaths during the 1988/89 and the wartime could have been prevented.
He stressed that both right to life and right to food should have been included in the current Constitution. Right to life was included in the 1972 Constitution but was removed by the subsequent Constitution.
He further narrated the story of how at the time of former deceased President Ranasinghe Premadasa food supply to Jaffna was halted because terrorists inhabited the Jaffna Peninsula. “Rajiv Gandhi sent helicopters which dropped dry food parcels to that area. No one objected. The UNHRC said nothing. Even the Sri Lanka air force was completely silent. This was a violation of International Space Law,” he said.
"Before the Second World War, we did not have a fundamental rights chapter in our constitutions. Fundamental Rights were looked at by the judiciary. In the Soulbury Constitution of 1947 there was a significant provision namely Article 29 which guaranteed minority rights and religions"
Asked if judicial decisions have widened the scope of the FRs guaranteed by the constitution he replied positively pointing out several cases. “In Wimal Fernando v SLBC court held that Freedom of speech and expression also meant access to information, gaining information etc,” he said.
“In the Gerard Mervin Perera judgement the court said that receiving medical treatment whether from a state or private hospital is immaterial. In another case I was involved in with the Environment Foundation, we found that there was no water in the wells and houses were damaged, just like in what has happened by the Uma Oya project. The Environment Foundation had no access because they were not victims but an NGO. But Supreme Court said that they could proceed to a certain extent,” he added.
“After the case of Sriyani Silva v Iddamalgoda, Payagala OIC if a person is arbitrarily arrested, tortured without any charge in the police station, the Supreme Court has stated that he has a right to life in such instances. But this right is available only when a violation occurs under police custody,” Dr. Mahanamahewa pointed out.
“The Supreme Court has tried to expand this provision. When 500 young people were detained at the Boosa camp without any charge for months and years on end, they wrote petitions to the Chief Justice. At that time I was a human rights lawyer and we visited that place and filed many cases. The Supreme Court Judge accepted a post card as an FR petition. Today you can’t do that. It has to follow procedure,” he said.
He further noted that rights which are important for the 21st and 22nd centuries are not included in the Constitution. Therefore amendments made to the chapter should be done with a futuristic vision. “Right to privacy or right to be let alone is not included. Many violations occur through social and electronic media because right to privacy is not guaranteed. This is a fundamental human right in other countries. We neither have a backing up data protection law in Sri Lanka.”
“Consumers are exploited today. The only place they could go to is the Consumer Affairs Council. There are a lot of issues here as well. There are chemicals in the food we consume. Then there are oily stuff and concern about MSG, the expiry date, quality of the food. If you try to file a case it will take years and years,” he said.
“Though the State provides free education right to education has not been included. The right to vote and the right to clean water are absent. We need a special clause for environment rights,” he said.
"Rajiv Gandhi sent helicopters which dropped dry food parcels to that area. No one objected. The UNHRC said nothing. Even the Sri Lanka air force was completely silent. This was a violation of International Space Law"
The current constitution does not include judicially enforceable economic, social and cultural rights. However courts have decided on matters regarding these rights by interpreting the equality clause.
Dr. Mahanamahewa further said that labour rights, women’s rights, children’s rights, rights addressing climate change should be included.
Implementation
It is insufficient to merely incorporate these rights into a Constitution. There should be effective implementation so that the benefits of the FR chapter are reaped in full.
Article 126 (2) states that only the Attorney at law on behalf of the victim or the victim can go to the Supreme Court for an FR violation. “This clause must be removed. If anyone is interested in another’s rights he must have access to justice, to the Supreme Court. In India, Justice Bhagawati and others came up with the idea that anyone who saw another’s rights violated should be given the access to go to court,” said Dr. Mahanamahewa.
The same Clause in the Constitution states that the petition should be sent to the Supreme Court within one month of the alleged violation. “The one month bar has to be extended to 6 months. You can’t do anything within one month,” he noted.
“When rights are violated victims go to the HRC. People use it as a ladder so then they can file the case in the Supreme Court at any time,” he added.
"But the only weakness was the implementation mechanism. But under the 1978 constitution the mechanism is included but many rights have been taken off. This has been done purposely"
He suggested that there should be a separate Supreme Court division to hear FR cases. “There should be at least 2 or three Supreme Court judges handling FR cases.”
The Supreme Court is located in Colombo. “If the rights of a person from Jaffna are violated he has to come all the way to Colombo to submit the case, hear it and listen to it. Two days will be spent on travelling, and then the person has to bear the cost of lodging and accommodation in Colombo as well. Lawyers also charge a fee,” he pointed out.
“The Constitution must be amended to give Provincial High Courts Appellate Division the power to hear FR cases,” he suggested.
He said that providing free legal aid should be an FR. “When Navaneethan Pillai visited Sri Lanka she said that our people are still not aware of FR human rights, that they don’t have access to courts sometimes, and that we must provide free legal aid.”
The FR found in the current Constitution are applicable only when they are violated by executive or administrative action. “You must expand this to the private sector. In Canada if the private sector violated an FR, victims can go to the Canadian HRC.”
Restrictions
Article 15 of the current Constitution has posed restrictions on fundamental rights on grounds of national security, national economy, etc. “You must limit restrictions. There is no war in the country now. Any govt that comes into power has a shield to hide behind called national security. This is why Karl Marx said that law is a weapon used by the ruler to control the mass. This is true under the Prevention of Terrorism Act. Until you go for a lawless society you need a law to implement,” said Dr. Mahanamahewa.
Golden opportunity
“If we have an excellent an FR chapter we can draft the best Constitution in the world. This is a golden opportunity,” he said. “When Sri Lanka signed the International Commercial Arbitration Convention, the first country to introduce an Arbitration Act was Sri Lanka in 1995.”
“Sri Lanka was also the first country to introduce the Human Rights Commission Act of 1996. The other countries followed suit,” he said pointing out that Sri Lanka’s new Bill of rights could be a model for other countries.
Referendum
Amending certain clauses in the FR chapter requires a referendum. “You should go for a referendum. People are ready for this. We don’t need a new Constitution per se. We need reforms to the electoral system, how Supreme Court Judges are removed and the FR chapter. The political decisions regarding the removal of the executive must be taken. You must expand devolution,” he said on a final note.
