Human Rights rightly and truly enshrined

In our constitution:

by Gamini Warushamana

"There are some provisions in the present constitution relating to the protection of community rights", said Justice Nimal Gamini Amaratunge, Judge of the Supreme Court of Sri Lanka, while addressing a seminar held in Colombo recently to mark International Human Rights day.

The seminar was organised by the Intellectuals for Human Rights (IHR) on the theme of "Individual Rights Vs Community Rights". Following are the excerpts:

In 1948, most of the countries in the world agreed and signed the Universal Declaration of Human Rights (UDHR) and thereafter many treaties and covenants were passed by the UN regarding the promotion and protection of human rights.

Sri Lanka has signed most of these international instruments. In Sri Lanka, previous Constitutions too had some provisions for the promotion and protection of human rights, but there was no mechanism to challenge if the rights of a person were violated. In the 1972 constitution, there were provisions on human rights but the Constitution did not say anything about actions that could be taken if those rights were violated.

The 1978 Constitution for the first time, established a mechanism to seek judicial intervention if the rights of a person were violated. However, the most profound 'Universal Declaration' of human rights was first declared in Sri Lanka, 2300 years ago. It is through the advice given by Arahat Mahinda Thera to King Devanam Piyatissa, in Anuradhapura.

Chapter 16 of the great chronicle (Mahawmsa), records the dialogue between the Arahat Mahinda Thera and the King thus "King! All the birds flying in the sky and all the creatures living on this ground also have the same rights for this land as the right that you have. You are not the owner but only the custodian of this land".

Justice C. J. Weeramantri presented this concept to international fora and in a case took before the International Court of Justice, he pointed out this statement and emphasized that the development and environmental sustainability should go hand in hand. Nobody has the right to consume and destroy all the resources available in the world.

The future generations too have the right to them and we have a responsibility of protecting them for the future generation, he said.

"Let us now look at the provisions in our Constitution regarding the protection of human rights. In Chapter I, of the Constitution, the country has been named as the Democratic Socialist Republic of Sri Lanka. Chapter III provides that the sovereignty of the Republic is with the people.

This is a very important Chapter and it is one of the most important principles that cannot be found in any constitutions in the world.

Everyone accepts that it is an excellent concept. However, some people question how those concepts are implemented.

Therefore I will explain how the sovereignty of the people can be enforced practically.

There are several occasions in which this principle was put in to practice. One such instance is 1994 General Election, which is one of the peaceful and fair elections in the recent past. In that election people by using their ballot defeated the government that held power for 17 years.

The Supreme Court decision on the 19th Amendment Bill to the Constitution was another example. That Bill was referred to the Supreme Court to review whether it was consistent with the constitution. Our constitution has given this power to the Supreme Court.

The Bill had proposed to grant more powers to the President to dissolve the Parliament and also it had legitimised the practice of crossing over by members of the parliament.

The Supreme Court opined that the intended amendment giving substantive powers to the President to dissolve Parliament was inconsistent with the constitution unless it was approved by the people at a referendum and by a two third majority of the parliament.

Therefore Supreme Court said that the 19th Amendment Bill to the Constitution should be passed by a two third majority in Parliament and approved by the people at a referendum as well. This decision further confirms the supremacy of the people.

The sovereignty of the people can be divided into three i.e. the administrative powers, fundamental rights and voting rights. Administrative powers have been shared with the Parliament, Executive and the Judiciary.

This power has been delegated to them by the people to be used for the benefit of the people. The responsibility of even the Executive President is to use this power for the benefit of the people.

Every morning we go to courts to implement the power that has been delegated to us by the people and see whether someone is attempting to violate the power of the people. The Constitution has given the power to the judiciary to curb such violations.

The case of "Eppawela Phosphate Deposit" is another example that the judiciary protected the rights of the people.

The Government attempted to sell the phosphate deposit to a foreign company and seven persons in the area challenged that action in the Supreme Court saying that this agreement violates their fundamental rights.

Supreme Court observed that the agreement has given more powers to the foreign company than the Sri Lankan government and also not considered the environmental aspects of the project. Therefore the Supreme Court withheld the implementation of the agreement and ordered to submit an environmental appraisal report.

Supreme Court in its judgment said that public resources should be utilised without violating the sovereignty of the people. It emphasized that the government is only the caretaker of these resources and not the owner.

In another example, Supreme Court de-merged the North and East provinces and abolished the Executive President's power by which he postponed the intended referendum to seek the consensus of the people in the Eastern province for the merge.

According to the 13th Amendment to the Constitution, people in every province have a right to elect Provincial Council members.

The Supreme Court pointed out that the Northern Province has more advantages and therefore in a merger it would violate the fundamental rights of the people in the Eastern province.

It also said that the President has used Emergency Regulations to postpone the Referendum. In this judgment, Supreme Court also said that the Judiciary has the power to question the decisions taken by the President under Emergency Regulations.

The Supreme Court judgment on the petition against the extra perks obtained by the former President Chandrika Bandaranaike Kumaratunga is also another example for upholding the supremacy of the people.

The Cabinet had granted good perks to the former President, including a valuable land in Kotte, an official residence at the Independent Square, a large number of private staff and a large number of security persons.

Three lawyers filed a case saying that giving these unauthorised perks violate their fundamental rights. How does granting these perks to the former President violate the fundamental rights of individuals?

According to our Constitution, Sri Lanka is a country that governs in accordance with the rule of law. Therefore nobody can act against the law of the country.

So in this case the Supreme Court decided that the former President has obtained some perks that is not legally entitled by her. On the other hand the Supreme Court said that the Cabinet is only the caretaker of the national resources and not the owner.

Therefore donation of national resources by the Cabinet was considered as illegal. The owners of these resources are the people of the country. Therefore the Court ordered to get back (the) all illegal perks that had been obtained by the former President.

According to our law it is only the aggrieved party that can file a case against the violation of his or her rights and a third party can't go to the court on behalf of the aggrieved party.

However, India abandoned this principle of law derived from the English law. There are thousands of poor people who cannot afford to go to court seeking remedies for violation of their rights.

Therefore this stance taken by the Supreme Court of India gave an opportunity to civil organizations to help them to seek remedies from the court.

During 1988-90, there were thousands of youth detained in the Boossa camp under Emergency Regulations without any charge against them. Once they wrote to the Chief Justice and requested to do justice for them.

The letter was forwarded to the Sri Lanka Bar Association and after a study the Bar Association produced details of the detainees. The Supreme Court said that the detention without any charge is a violation of their fundamental rights.

Except Article 11, all other Articles on fundamental rights in our Constitution can be restricted for the national security or for the benefit of the people. In all such occasions the Supreme Court has reviewed the facts. In case of violation of individual rights too the court has done so.

All national resources are ours and the Cabinet only manages them on behalf of us. If they do not do that properly and waste those national resources and money, people can go to court.

Constitution says in Article 21 that the protection of the public properties is a responsibility of the government.

This provision of the Constitution is sufficient to use for the people to challenge such violation of their rights. So there are provisions in our Constitution to protect common rights of the society.

Therefore to act accordingly is a responsibility of the people.