Standing up for Rights | Daily News

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Standing up for Rights

A few months ago, the UN Committee on Economic, Social and Cultural Rights has urged Sri Lanka to adopt a comprehensive Bill of Rights that fully incorporates economic, social and cultural rights. The Committee added it was concerned that at present most economic and social matters relevant to the individual or groups are confined to the Directive Principles of State Policy Chapter of the Constitution.

It said: “As stipulated in article 29 of the Constitution, these Directive Principles do not confer or impose legal rights or obligations and are not enforceable in any court or tribunal. No question of inconsistency with such provisions shall be raised in any court or tribunal.”

The Committee recommended that Sri Lankan Government expedite its Constitutional reform process, including the adoption of a comprehensive Bill of Rights that fully incorporates economic, social and cultural rights.

What is the purpose of a so called “Bill of Rights?” What does it serve? Most important of all, the Bill of Rights serves to protect citizens from excess government power. It achieves this by ensuring there is a separation of powers between different government branches, the judicial, executive, and the legislative. A Bill of Rights, sometimes called a Declaration of Rights or a Charter of Rights, is a list of the most important rights to the citizens of any democratic country. In other words, the purpose is to protect those rights against infringement from politicians, public officials and private citizens.

Sri Lankan experience

Sri Lanka, in fact, was talking about Bill of Rights for the past several years. In 2011, a Committee reporting to the Ministry of Disaster Management and Human Rights prepared a draft Bill of Rights and submitted to the Ministry of Justice for review. Not much action has been taken to take this draft forward by the Government at that time.

And, in June 2016, the official committee on constitutional reforms in Sri Lanka came up with an exhaustive Bill of Rights. It covered 32 types of rights, ranging from right to life (not included in the 1978 Constitution) to rights of people with diverse sexual and gender identities. Lal Wijenayake, chairman of the committee, told an Indian newspaper that the Bill of Rights as proposed by his panel, if accepted by the country, would be among the “the most modern” documents on rights in the world.

Meanwhile, the Government has confirmed that Sri Lanka’s proposed constitution will include a Bill of Rights that takes into account economic, social and cultural rights of the people. Sri Lanka’s current constitution covers only civil and political rights that are considered to be the most basic rights of a human being.

Entrenchment

Bills of Rights may be entrenched or unentrenched. An entrenched Bill of Rights cannot be amended or repealed by a country's legislature through regular procedure. Instead, it requires a supermajority (eg., 2/3 votes in Parliament) or referendum; often it is part of a country's constitution, and therefore subject to special procedures applicable to constitutional amendments.

A Bill of Rights that is not entrenched is a normal statute law and as such can be modified or repealed by the legislature at will. In practice, not every jurisdiction enforces the protection of the rights articulated in its bill of rights.

Unfortunately, there has not been much awareness among common Sri Lankan citizens about adopting a Bill of Rights. Perhaps, most of them are not adequately educated what it is and what benefits it can deliver to them.

However, the need for the adoption of a Bill of Rights must be considered against the background of recent events here and abroad. Those events have thrown a spotlight on deficiencies in Sri Lankan protection of individual rights.

A Bill of Rights is now a central feature of the constitutional or public law arrangements of major jurisdictions which share the common law tradition - the United Kingdom, the United States, Canada and New Zealand, to name four of them. In common, all of them have democratic governments. Yet they have found it necessary to temper the will of the majority by providing for additional protection for individual rights for the very reason that neither the law nor the political process sufficiently protect them.

Power abuse

Historically, the emphasis on protection of human rights and fundamental freedoms arose out of the need to protect minorities and individuals from discrimination and oppression on racial, religious and other grounds. Additionally, it came to being to protect the rights and freedoms of individuals from the overriding exercise and abuse of state power.

During the times of terrorism, most countries make special and wide-ranging arrangements for security. We have witnessed how in our own country the political process has been tampered with to compromise basic individual rights and to countenance procedures which are inconsistent with basic elements of the rule of law. For example, lengthy detention of suspects without any or speedy access to the courts has been one feature of the so-called War against Terror.

Law protection

Politicians have a powerful survival instinct. They are anxious to keep on side with popular sentiment, even more so when popular sentiment has been fanned by media-fuelled anxiety about crime, corruption and threats to security. No politician wants to be labelled as “soft” on those issues. So, the political process is willing to compromise on basic rights and on the rule of law so as to convey the impression that politicians are seen doing the right thing.

In the result, statute law may override basic law protection of fundamental rights and basic elements of the rule of law. This willingness to compromise on basic rights is not confined to crime, corruption and security, where the justification may seem stronger.

That is why most democratic countries brought in Bill of Rights concept to protect human rights and fundamental freedoms, mostly by constitutionally-entrenched guarantees.

Bill of Rights

We urgently need a Bill of Rights in Sri Lanka. The main arguments for its adoption are: (1) it would bring Sri Lanka into line with the rest of the democratic world; and (2) it would protect basic individual rights from interference by political (legislative and executive) interference.

There are two other advantages. (1) Principled judicial decision-making would replace political compromise; and (2) Government and administrative decision-making, on policy and other issues, would necessarily have close regard to basic individual rights.

A constitutionally entrenched Bill would certainly give more power to judges than they have. It would enable the judges to override Parliament or political pressure. But a statute-based Bill, would not have that result; it would leave the judges with their ordinary role of interpreting the laws made by Parliament, but in the light of the Bill of Rights. A statute-based Bill of Rights in this form can be changed by Parliament. Parliament also has the capacity, by specific and clear language at any time, to override or qualify statutory rights. But if Parliament takes this course, it must confront the impact of its proposed law on the rights protected by the Bill and deal with that impact specifically.

The experience in other countries also confirms the lesson of history - that the rights of individuals are better protected by judges than by politicians. Politicians and administrators are primarily concerned with the exercise of government power and policy. Judges are primarily concerned with the rights of individuals. That is what court cases are all about.

If Sri Lanka is to consolidate the democratic gains of 2015, it is vital that the Government should bring in the Bill of Rights to the Parliament approval without further delay. Once the Constitutional Reforms are finalised at a future date, the Bill of Rights could be entrenched into the Constitution itself. 


 

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