Human Rights rightly and truly enshrined
In our constitution:
by Gamini Warushamana

Justice Nimal Gamini Amaratunge addressing the seminar
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"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. |