SRI LANKA: Replacing the primitive 1978 Constitution with a modern one

A Statement by the Asian Human Rights Commissio SRI LANKA: Replacing the primitive 1978 Constitution with a modern one The Prime Minister’s announcement for the need of a new constitution, one that will be in keeping with those found in developed countries, is quite welcome. The 1978 Sri Lankan Constitution is primitive. It is a shame on the nation. And, a change is certainly needed. However, a reminder is in order. The making of a constitution is the sole prerogative of the people. Both the 1972 and 1978 constructions were attempts by the respective governments to usurp this fundamental prerogative of the people. Naturally, both these constitutions brought much misery to the people; they virtually made constitutionalism an alien concept in Sri Lanka. In India, however, when Indira Gandhi tried to do the same, the Indian Supreme Court stopped her, stating that the elected legislature only has legislative power and the making of constitutions does not fall within that power. That power belongs to the people. The famous Keshavanda Bharathi v. State of Kerala, decided 40 years ago, has been celebrated as the case that saved the Indian democracy. It is in this case that the Supreme Court formulated the basic structure doctrine, which meant that the basic structure of the Constitution cannot be amended by the legislature. The doctrine of the supremacy of the constitution was thus firmly recognized. If a new constitution is to be introduced in terms of the constitutional traditions of developed countries, such a construction must, most importantly and finally, settle something critical: what is the basic structure of the Sri Lankan Constitution? The Soulbery Constitution had a basic structure, which was the structure of a liberal democracy. That structure is also found in all the constitutions of the developed democracies. The core element of that basic structure is the duty of the State to recognise and protect the liberties of all individuals. Both the 1972 and 1978 Constitutions were attempts to reject or undermine this fundamental duty of the State – to recognise and to protect the liberties of all the individuals. Under the guise of the supremacy of Parliament, the 1972 Constitution attacked the notion of liberties of individuals. The 1978 Constitution, by incorporating national security laws into the Constitution itself, dealt a deadly blow to the very notion of the liberties of individuals. It was through this formula – making national security laws part and parcel of the Constitution – that J.R. Jayawardene armed himself to attack trade unions, political parties, and the minorities. The Executive President thus became capable of even authorizing enforced disappearances by merely using emergency laws. Blatant abuse of State property, in its most extreme forms, such as what took place under Mahinda Rajapaksa’s watch, became possible only due to 1978 Constitution. Unlike the Indian Supreme Court, Sri Lankan courts, have not proven to be capable of defending the basic structure of a liberal democracy in Sri Lanka. Thus, a new constitution, in keeping with the best traditions of developed countries, would also require a change in the mentality of judges. This is so their failure to defend the basic structure of the Constitution would not cause a suicide of democracy. The task of making of a new constitution is a necessary and a serious task. The Sri Lankan people do not need one more constitution made in a fast food style. Now is the time for people to take the initiative to bring the issue of their liberties to the forefront of their deliberations. # # # About AHRC: The Asian Human Rights Commission is a regional non-governmental organisation that monitors human rights in Asia, documents violations and advocates for justice and institutional reform to ensure the protection and promotion of these rights. The Hong Kong-based group was founded in 1984. Read this Statement online 2)FOR IMMEDIATE RELEASE AHRC-STM-122-2015 July 29, 2015 A Statement by the Asian Human Rights Commission SRI LANKA: UPFA wants country to return to lawlessness Yesterday, the CID filed a report at the Magistrates Court of Colombo, seeking to re-open criminal proceedings regarding the alleged murder of the rugby player Wasim Thajudeen. Wasim, who was a well known rugby player and voted as the most popular ruggerite for the year 2009 by Caltex Observer Touchdown Rugby quiz, was found dead on 16 May 2012. Previously, due to political pressure, police had filed reports alleging that the death of Wasim Thajudeen had been due to a road accident and that there was no foul play involved. However, as there were complaints disputing this position and alleging murder, the CID proceeded to inquire into such complaints and has now found reason to believe that the rugby player was in fact murdered and that the crime scene had been rearranged to create the impression of a road accident. Yesterday, July 27, the CID informed the Colombo Additional Magistrate that Thajudeen’s death was not an accident. According to reports, suspects for this death include a son of the former President Mahinda Rajapaksa, and a former Senior DIG is suspected to be involved in covering up the crime. Newly discovered details suggest a sophisticated crime, carried out with the involvement of many, including some PSD officers. Hushing up of such crimes was common during the Mahinda Rajapaksa regime. The long list of crimes includes murder, abduction, corruption, and misuse of state resources. Already, reports have been filed in courts against several strong men of the last regime, including Basil Rajapaksa, a powerful minister who is also a brother of the former President. Many more inquiries are pending. The aim of the United Peoples Freedom Alliance (UPFA), whose election operation is being led by former President Mahinda Rajapaksa, is to return to the style of the former regime, which undermined the criminal justice process of Sri Lanka to create an enabling environment for corruption, abuse of power, and other crime. The newly elected President Maithripala Sirisena himself alerted the country of this danger through a telecast to the nation. The core issue for the electorate in the 17 August election is about the virtual suspension of the criminal justice system and the paralysing of all state agencies, whose duty it is to protect the rule of law. Sri Lanka, which has suffered several decades of lawlessness, is once again faced with the possibility of the collapse of all of its justice institutions. The country has barely returned to functioning justice institutions, howsoever inadequate. This is time to make them work more efficiently and not the time go back to the rot that they were during the last regime. It should be the duty of all citizens to do all they can do to stop such a catastrophe. # # # About AHRC: The Asian Human Rights Commission is a regional non-governmental organisation that monitors human rights in Asia, documents violations and advocates for justice and institutional reform to ensure the protection and promotion of these rights. The Hong Kong-based group was founded in 1984. Read this Statement online