The New Constitution from a Human Rights Context

The country is in a unique moment. Last week, the Steering Committee of the Constitutional Assembly submitted its interim report on a new Constitution to Parliament for review.

Delivering a Constitution was a key campaign promise of the Yahapalanaya, or “good-governance” government, when they came to power in 2015.

Against this backdrop, though, high-level officials at the United Nations have repeatedly criticized the country’s progress on addressing its human rights abuses. Earlier this month, The United Nations High Commissioner for Human Rights Zeid Ra’ad Al Hussein called out Sri Lanka by name for what he said was its slow pace on achieving post-war accountability and reconciliation.

At a recent event organized by the Bar Association of Sri Lanka, lawyers and academics talked about securing human rights in the current legal framework, with an eye towards the drafting of a new Constitution.

Judicial review of legislature

Dr. Prathiba Mahanamahewa, a senior lecturer at the University of Colombo’s Faculty of Law, said that the new Constitution should give the Supreme Court the power of legislative review, like in the United States.

He said the current arrangement gives Parliament too much power to pass potentially harmful laws.

Mahanamahewa said Sri Lanka needed to blaze its own path as a human rights leader, as other countries in the region, like India, are falling behind. He gave the example of the recent murder of Gauri Lankesh, the journalist who often criticized Prime Minister Narendra Modi’s government.

“She criticized the system, and what was the reward?,” he asked. In contrast, he said the media in Sri Lanka has emerged as a kind of parallel government, highlighting abuses like the Central Bank bond scam.

Further advocating legal reform, Mahanamahewa also said the ability to hear Fundamental Rights cases – the types of cases that tackle human rights issues in Sri Lanka – should not lie only with the country’s highest court.

Such cases “are only practised by a few elite lawyers in the Supreme Court,” he said. Instead, he argued, provincial High Courts should be empowered to hear Fundamental Rights cases as well.

Freedom from torture

He said South Africa’s Constitution, which contains a fundamental rights chapter, should be a model for Sri Lanka. Within those provisions should be things like access to legal aid and freedom from torture. “Freedom from torture should be an absolute right,” he said.

Torture is still routinely used in the country, he said, echoing statements made by UN Special Rapporteur Ben Emmerson, made on his official visit to Sri Lanka in July.

“And still, there is intimidation of media and human rights activists,” Mahanamahewa added. He said that personally, he had made a complaint with the Commission to Investigate Allegations of Bribery or Corruption about a sitting minister over a year ago, and had not received a response since.

According to him, the current structure of government favoured political protectionism. “The President should be for all citizens, and not for a party. That should be in the Constitution,” he added.

Victim’s rights

Former head of the Department of Public and International Law at the University of Colombo Jeeva Niriella added that from a criminal justice perspective, victims’ rights should also be included as a branch of human rights.

“The present form of criminal justice … is more favourable to the accused,” she said.

Though not pointing to the new Constitution specifically, she argued that Sri Lanka’s victim and witness protection programmes needed to be significantly reinforced. As of now, a victim has no way to appeal if their request for protection is denied, she said.

U.R. De Silva, President of the Bar Association of Sri Lanka, also approached the topic of human rights from a criminal law perspective. He cited the 2006 case where the Supreme Court found that the detention of nearly 200 people suspected of violating the Immigrants and Emigrants Act was in itself a violation of their Fundamental Rights, as they were held without a fair trial.

In the universities, “we hear they’re not talking about human rights, just violations,” he joked. “We need more protections in the Constitution.”

A clash of ideologies

Dr. Kalana Senaratne, a visiting lecturer at the University of Peradeniya, agreed that the new Constitution-making process was fertile ground for better protecting the human rights of Sri Lankan citizens.

But he urged an understanding of the context in which the Constitution is being formed, and a realistic political analysis of its fate.

“We can’t think about what’s happening today with the Constitution-making process … without understanding what really happened in the final months of the war, in 2009,” he said.

He said that the battle between the Liberation Tigers of Tamil Eelam and the Sri Lankan Armed Forces was more than just one between two armies, but one between two forms of nationalism.

“On the battlefield we found two armed groups, but the political battle was the far more dangerous one,” he said. Even though the fighting has ceased, these ideas continue, and will need to find compromise if a new Constitution is to be agreed upon, he argued.

He pointed out that the bulk of the 90-page interim report of the Constitutional Assembly is made up of criticism and commentary submitted by the political parties. It will be a delicate task to thread the needle, he argued, given that different parties have opposing demands for provisions they see as protecting their and their constituencies’ interests.

The Tamil parties want a secured devolution of power, for instance, while Sinhala nationalist parties like the JHU want Sri Lanka’s status as a Buddhist, unitary state further enshrined.

To further complicate negotiations, The UNP seems to want to abolish the executive presidency, while both the pro-Sirisena and pro-Rajapaksa branches of the SLFP want it preserved, at least in some form.

“It’s a very interesting era that we’re living in,” admitted Senaratne.