Thank you also to the National Movement for Social Justice for inviting me to speak on this subject. One of the reasons why I’m speaking in English, and I hope still the audience is like, it’s clear enough, it’s because of the language and the words, the familiarity with the words in Sinhala is not as great as I am on other subjects. So on this idea, I think it’s really important that there is a conversation among citizens right now, like Harinder mentioned, the One Text Initiative and even this conversation about constitutional reforms.

It really, I think I just want to set some of that context about why it’s so important and why people have always risen to that occasion to engage in that conversation. I think we saw in the 2016 when the public representatives committee went around the country asking for those consultations, so many people engaging and sharing their ideas of their just lived experiences, their experiences of their lives in terms of understanding how that relates to the constitution. And that is really what constitutional reform signifies, that there is a basic contract with the state to say, you exist to ensure these securities for us.

We as a people, we as a citizenry are coming into an agreement with you so that you protect these rights, you provide these services, you ensure that you carry out your duties in our interest, in the public interest to the best of your ability and are accountable for that responsibility. So it is really an opportunity for the deepening of democracy that we are engaged with when we talk about constitutional reforms. It’s an opportunity where citizens are empowered and I think in the backdrop of the mass protests in 2022 where we see people taking the opportunity to come out and say on a number of issues.

I know it was certain economic difficulties that brought people out of the street, but what happened was that people raised a number of issues, whether it was corruption, to governance, to PTA, to how their lives had been governed by those who were in government and taking issue with that. So I think there’s a real need for that contract to be looked at. It is an opportunity for citizens to take control of their, I mean, I think it’s okay to say, take control of their destiny.

This is the agreement that says this is how we will achieve development for every individual in Sri Lanka. It forces us to take a look at the socio-political, economic landscape that we currently are in and that means everybody and it’s not a constitution for the majority. It’s not a constitution on particular rights.

It is the constitution that ensures that every single citizen particularly the most vulnerable, particularly the most marginalized, particularly working people, particularly women. Those groups that have been disadvantaged for a long time are ensured that there will be protection and there will be an opportunity for development and full flourishing of that human dignity. Also, we have to understand the constitution as a first step.

I mean, we have these deep conversations around constitutional reform but it is really a first step, a commitment by the people, a commitment by the state to say we have so much work to do ahead of us to passion this space that we live in, this state that we live in to start achieving the things that we want. So, in that backdrop, I just wanted to say that in terms of recommendations and there might be some overlap with what Dr. Jayampathi said that I know that there is a conversation around expanded fundamental rights. Currently, in the 1972 constitution, we had civil and political rights only.

Then, we had the current constitution, the 1978 constitution, we used to have the right to life, that clause was dropped and we still had only justiciable protection for civil and political rights. So, we did not have an extension or an expansion of the fundamental rights chapter to socio-economic rights. All we have had so far is the directive principles of state policy, which is very much a chapter that guides the state on how it has to achieve certain socio-economic objectives.

But we have seen this time and time again, when they are not justiciable, how the discretion given to courts is also used and we have many judgments that talk about how the directive principles of state policy may not be enforceable but provide important guidance, direction to the various state organs, that they are not based at ink on the paper but what that has meant in really establishing those or protecting those socio-economic rights, there’s a really big question mark around that. So, I think there has been much progress around the world if you look at comparative jurisdictions on constitutional rights in ensuring the protection of socio-economic rights in constitution. So, for example, if you look at the fundamental rights subcommittee in 2016, there was a proposal that encompassed all socio-economic rights.

In fact, it says, I looked at some of the language in that it says, however, in the last two decades, in the light of global developments in human rights, it has become clear that the intrinsic link between political rights and freedoms and access to economic resources and a better quality of life can no longer be overlooked. This is particularly so in a country such as ours where a deprivation of such resources has led to violent conflicts in the past. And I think that it is important that we recognize that violent conflicts that have taken place in Sri Lanka has been a matter also of resources, also of unfair distribution, inequality that has given rise to violence, right?

So, if you look at the issues that we are also grappling with today when we talk about labour rights, when we talk about freedom from exploitation, we talk about the conditions of plantation workers, government sector workers, we are talking about 30% of the country under a poverty line, we are talking about almost 50% of households in Sri Lanka bearing down with household debt. So, it’s clearly an economic problem that we are also at a very individual level facing which is something that needs to be corrected and it has to be corrected from very much the top so that we look at it as a constitutional reform question as well.

That fair distribution, that equality of resources, equality of access to resources, the right in terms of also be able to determine your development, your future is very much linked to the idea of socio-economic rights. So, for example, with the subcommittee on fundamental rights, the proposal was for a whole host of socio-economic rights being included specifically, I pulled out labour rights, freedom from exploitation, family rights, right to ownership of property. And then we have like the very important ones which Sri Lanka has been really fortunate to have in the form of education and health but not guaranteed in the constitution and as a consequence, we really need to ask ourselves this question as to whether we have also then seen those rights deteriorate but in terms of we have that commitment that was made very early on to the right to education or free education for all and free health for all or public health for all. And in terms of over the decades where we have seen that commitment like has it really helped that right grow or has it really whittled the benefits of that right? We look at when we talk to families today in terms of also education, even this access to education, what it costs to get to the free education is something that we need to take into consideration. So, it is important to think of these things as not just commitments, political commitments but those that are enshrined in constitutions, therefore ensuring that regardless of changes in power in government that the commitment to these rights endure.

There’s also social rights where there is a commitment to ensuring that people have sufficient food, nutrition which also links to agriculture and our ability to sustain ourselves. The self-sufficiency in that sense also of food, nutrition, clean water, sanitation, adequate housing and shelter. There was also mention of right of senior citizens and access to justice.

So, I think one of the main recommendations that I hope we will talk about and raise as citizens when we do have this conversation on constitutional reform is the expansion of the fundamental rights chapter to include socio-economic rights that are very close to our understanding of how we see ourselves live in this country.

In terms of the technical, I would imagine also that we look at some of the things that have been keeping people out of redressing their violations of rights. So, for example, the time bar issue that is the 30 days within which a citizen should bring a case before the supreme court right now which is article 126 of the constitution that says that you have to bring any violation to the notice of the court within 30 days.

If you don’t, then that rights violation cannot be adjudicated by the court. So, you are shut out of your violation being looked at, determined if you do not bring it within 30 days. In cases such as torture cases, we know this is an impossible burden that we place on victims. And I have had these discussions with lawyers from other countries and it is quite a unique situation because on a violation as serious as torture, they do not even understand how there is a time bar.

This is a situation where a state official takes the power that is given to him and uses that to physically, emotionally, and psychologically harm a citizen of this country. So, we have to look at these things that really bar also access to justice for citizens in terms of saying that the state official has done something wrong, the state has caused some wrong to them. And in terms of fundamental rights, I think Dr. Jayampathi already mentioned and I will just, I think it’s not, it’s certainly not a bad idea to restate it.

The idea that we have article 16 and then we also have the fact that the Sri Lankan constitution ensures that the judiciary is not permitted. Only executive and administrative actions can be reviewed by the judiciary, not legislation. So, we need to be in a situation where it is a living constitution.

It is a constitution that is dynamic and is able to address once a law comes into being, if there is found to be a violation of somebody’s rights as a consequence of a provision in that law or as a law in its whole, whether the court can then have the power to take a decision, that is the power that also ensures that it’s a constitution that is supreme. And we need to move into that as was mentioned earlier, the idea of the supremacy of the constitution.

So, we have these bars, these challenges to these ideas in this article 16 which says protection is given to all of the old laws, however bad they may be, any law that is before the constitution is given the clearance that it does not reach anybody’s fundamental rights and I think those who have been very harmed by some of these particularly colonial laws have not had the opportunity particularly when it affects minorities as we’ve seen with the Muslim women’s activism groups that have been looking at reform of the Marriage and Divorce Act for decades have not been able to get that on the legislative agenda because the only way you are able to bring about change for something that is affecting your daily life is to have the entire parliament, convince the entire parliament to bring a new law.

Whereas, if you have this power given to the judiciary to look at laws as a living example, as issues come up and say, okay, this particular part is actually unconstitutional and has to be struck down which is a very common feature in constitutions, the judiciary having that power, then it means that legislation consistently keeps adapting to the situation of two people’s lived experiences and then it is a living constitution, it’s a culture of rights that is growing and jurisprudence that is growing to ensure that people’s rights are addressed when there is a violation, not for decades and decades after, perhaps even generations after these violations have taken place and you’re unable to get those, get that redress. So, we have to look towards moving towards that as well.

And I think as a sort of final note, I just want to talk a little bit about the need to have a conversation around judicial independence. I think there is very specific language in other constitutions, for example, we can look at the South African constitution that says in article 165, that courts are independent and subject only to the constitution and the law, they must apply impartiality and without fear, favour or prejudice and that no person or organ or state may interfere with the functioning of the courts.

These are very important ideas that we take for granted but we need to have it in writing in our constitutions. Also, that organs of state through legislative and other measures must assist and protect the courts to ensure the independence, impartiality, dignity, accessibility and effectiveness of the courts. So, this securing and entrenching this idea of independence of the judiciary is extremely important and goes hand in hand with the idea also of the composition of our judiciary, particularly the superior courts which are looking at things like fundamental rights. And I think it ought to be reflective of gender, of various marginalized voices, of ethnic identities because it is a truly diverse representative judiciary that can also be able to be sensitive to some of the issues that people bring to the court and in an extension of that, looking at constitutional issues and fundamental rights and I think it has already been proposed in the 2016 proposals, a constitutional court that will then specialize in these issues.

At that time when the proposals were made, they said that the constitutional court will be a separate court in terms of a structure and we look at interpretation of the constitution. We look at judicial review of Bills, judicial review of laws and statutes issues arising between and or among the centre and the provinces, and also breach of privileges of parliament and review of its own judgments. The importance, the specialization, the value of having a specialized constitutional court is something that we need to recognize because it is such a very special task in securing what the constitution is aiming to do.

It is the basic contract between the people and the state, and it has to be given that the space, the dedicated individuals to look into those issues.

So, on that note, for the moment I will close my comments, and hopefully we will share more thoughts in discussion.

Thank you.

Leave A Comment

Social