Are Our Human Rights secured in the 1978 Constitution?

by Saybhan Samat

(August 06, Colombo, Sri Lanka Guardian) Human rights are inherent rights possessed by people simply as and because they are human beings. Human rights is a concept that has been constantly evolving through out human history tied to the laws, customs and religions throughout the ages. The contemporary concept of human rights is the product of the 17th and 18th century European thought. The term has only come into common currency during the 20th century. While human- rights legislations are necessary, the tendency in today is for the powerful nations to use human rights as a stick to brow-beat weak and poor nations. The powerful nations use human-rights as an issue to further their sinister neo-colonial agenda to gain hegemony, advantages and profit from the weak nations.

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 if 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. It must be noted that 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 (Mahawamsa) records the dialogue between Arahat Mahinda Thera and the thus:- “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 you have. You are not the owner but only the custodian of this land.” Hence in fact the concept of human rights is not strange to us, we have implemented these rights in a more refined manner, than it is done in these contemporary times.
However there is a huge argument tendered by the local NGOs and the INGOs with powerful nations claiming that the fundamental rights in our present 1978 constitution does not include some rights guaranteed in the International Convention of Civil and Political Rights (ICCPR) and the International Convention of Economic Social and Cultural Rights (ICESCR).

This claim by the local NGOs, INGOs and powerful countries is on account of the poverty, lack of economic opportunity and prevailing culture of impunity in Sri-Lanka. The rights that are guaranteed by the ICCPR are rights pertaining to liberty, security, life integrity and security of the individual. As disappearances, abductions extra-judicial killings and attacks on journalists have increased there is a hue and cry of violations of human rights.

For a country to be accepted by the international community, it is required that, that country has to demonstrate that it has ratified 27 international human rights conventions. If this is done they claim that the overall human rights position will improve. For instance the EU has not given a positive indication to the continuation of G.S.P. facilities to Sri-Lanka on account of our human rights chapter in the 1978 constitution not ratifying the 27 human rights international conventions.

This lacuna in the 1978 constitution is not looked upon favourably by the UN and countries that give aid to us.

The 27 international conventions include labour rights, workers rights and certain other rights in the ICCPR and ICESCR. It is suggested that the Sri-Lankan government introduce a Bill of Rights so that some of the rights in the ICCPR and ICESCR not recognized in the Sri-Lankan legal system is recognized.

However, the government spokesman on legal matters the Honorable Mr. G. L. Peiris meets these arguments by claiming that the Supreme Court has already given a ruling which is binding as any other judgment that they may deliver, to the effect that the citizens of the country will have remedies in Sri-Lankan law if rights included in ICCPR or ICESCR are infringed. The critics of the government say that the Supreme Court has not given a categorical and binding statement in this regard and that the matter is in the air.

Many conventions of human rights approved by the UN are not a part of the Sri-Lankan law, secondly the restriction clauses in the Sri-Lankan constitution (1978) are so broad that rights are extremely vulnerable and fragile. The ICCPR and ICESCR have safeguards to ensure that rights cannot be easily curtailed at the whim and fancy of the executive. Further there is no right to appeal, in a fundamental rights application filed under article 126 in a Domestic Court.

The international community is also very much concerned with governance. In a situation where the 17th amendment is not being implemented and violations of human rights continue, the government should take steps to ratify and implement all conventions of the ICCPR and ICESCR to update the human rights laws so that the present culture of impunity is checked.

There is however a painful irony in this human rights saga. It is those very powerful nations that demand weak countries to observe human-rights, that are the biggest violators of human-rights. They have been so throughout history and even now. Is not torture at Guantanoms Bay, Abu Gharib, Barghan air base in Afghanistan, extra ordinary-rendition, water-boarding genocide in Iraq UN sanctions to starve hundreds of thousands of children in Iraq not massive violation of human- rights?
- Sri Lanka Guardian