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The subject of Human Rights has been assigned to the Ministry as of December 2001. This is the first time that the subject of Human Rights has been assigned to a Government Ministry.
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Human Rights are recognized as those rights which are needed by man to live a life of dignity. As stated in the International Human Rights Covenants, Human Rights arise from the “the inherent dignity of the human person”. It is claimed that Human Rights are moral rights and are designed according to the moral nature of man. As opposed to positive law which is distinctly traceable to Constitutions, statutes, Codes and such like, Human Rights which are viewed by some as stemming from natural law represent those rights which are identified as being needed for a life of worth as a human being and are based on a moral vision which draws the base line below which one cannot be permitted to recede. The Universal Declaration of Human Rights, in its thirty Articles set down common standards for all people and all Nations. The International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights (opened for signature in 1966) came into force in 1976. These were acceded to by Sri Lanka on June 11th, 1980. Sri Lanka’s history of the development of Fundamental Rights can be traced to its respect for the Rule of Law. Our domestic law contained provisions which recognized many of the rights which have since been declared to be fundamental rights. The Constitution of 1947 (the Soulbury Constitution) had no specific Bill of Rights. It contained provision which restricted the legislative making power of Parliament by prohibiting the enactment of legislation discriminatory of race or religion. This provision was designed at the time to, at least partially, allay realistic fears of possible discrimination on the grounds of race and religion. Other rights of citizens were to be asserted with reference to the principles recognized by the Rule of Law. Many of the rights which are today linked to fundamental rights were already part of our criminal procedure. Sri Lanka’s Constitution of 1972 pledged in its Preamble to realize the objectives of, inter-alia, the fundamental human rights and freedoms of all citizens. It also incorporated therein a Chapter titled “Fundamental Rights and Freedoms” and gave Constitutional recognition to the right to equality, to freedom from arbitrary deprivation of life, liberty and security of person, freedom of thought, conscience and religion, freedom to enjoy and promote ones culture, freedom of assembly, freedom of association, speech and expression, freedom of movement and of residence, and freedom from discrimination in appointments in the public sector. However, there was no procedure laid down for the enforcement of these rights as legal rights. Further, existing law was declared to be operative notwithstanding any inconsistency with the rights enumerated therein. The power of Judicial review of enacted legislation was also not available and was confined to the review of proposed legislation (while in Bill form) prior to enactment as law. The Constitution also permitted the restriction of these rights by law in the interests of national unity and integrity, national security, national economy, public safety, public order, the protection of public health or morals or the protection of the rights and freedoms of others or giving effect to the Principles of State Policy contained in the Constitution in a separate Chapter. Although restrictions were thus permitted, suspension of fundamental rights was not permitted under any circumstances. In the absence of special procedure to make these rights justifiable as fundamental rights, and in the absence of any other forum for the expeditious vindication of these rights the scope for the development of Fundamental Rights during this period was limited to what could be achieved via writs, Declaratory actions and other traditional remedies known to our law. In fact the only case to have been filed complaining of a breach of a fundamental right was a Declaratory action which was instituted in a District Court and which sought a Declaration that the Plaintiffs fundamental rights had been infringed. The Constitution of 1978 once again incorporated a Chapter containing provisions recognizing Fundamental rights and also provided for a mechanism for its assertion as a legal right through the highest Court of the land, the Supreme Court. As under the 1972 Constitution, the suspension of these rights even under a State of Emergency is not permitted. The rights recognized by the 1978 Constitution include freedom of thought, conscience and religion, freedom from torture, or cruel, inhuman or degrading treatment or punishment; right to equality; freedom from arbitrary arrest, detention and punishment; prohibition of retroactive penal legislation; freedom of speech, assembly, association, occupation and movement. The rights to freedom of thought, conscience and religion and the right to freedom from torture are recognized as rights which cannot be restricted on any ground. Some of the rights are permitted to be restricted for specified purposes such as in the interests of national security; in the interests of racial and religious harmony or in relation to parliamentary privilege, contempt of court, defamation or incitement to an offence; or national economy. Certain rights of the Armed Forces and Police Force are permitted to be restricted in the interests of the proper discharge of their duties and the maintenance of discipline amongst them. All restrictions are required to be as may be prescribed by law. Article 4 of the Constitution requires all organs of government to respect, secure and advance the fundamental rights declared and recognized in the Constitution. Article 126, provides a right of direct access to the Supreme Court to redress violations of fundamental rights. The Article vests the Supreme Court with sole and exclusive jurisdiction to hear and determine any question relating to the infringement or imminent infringement of a fundamental right set out in the Constitution. A complaint to the Supreme Court alleging an infringement or imminent infringement of a Fundamental Right must satisfy the following requirements – · The complaint must be made by Petition and affidavit ; · It must be made within one month of the infringement; · It must be made by an aggrieved party himself or by an Attorney at Law on his behalf; · It may be proceeded with only upon obtaining leave to proceed from the Supreme Court; · Upon leave being granted, the application for relief is heard and disposed of on the basis of affidavit evidence; · Relief may be sought and enforced only against executive or administrative action. In addition, the Court of Appeal is mandated to refer to the Supreme Court any matter which, in the course of hearing an application for Habeas Corpus etc. appears to be prima facie evidence of an infringement or imminent infringement of a fundamental right or language right.
Chapter IV of the Constitution provides for the following – Article
18 : Official Language of Sri Lanka – Sinhala and Tamil
Link language – Article 19 : National Language – Sinhala and Tamil
Article 20 : Use of National
Languages in Parliament, provincial Councils and Local
Article 21 : Right to be
educated thorugh the medium of either of the National
Article 22 : Languages of
administration – Sinhala and Tamil; Right to exercise Article 23 : Language of legislation Article 24 : Language of the courts
Article 25 : Obligation of
the State to provide adequate facilities for the use of
Institutions responsible for Fundamental Rights The Human Rights Commission of Sri Lanka
The Ombudsman The Ministry of Justice
The Constitutional and legislative provisions relating to Human Rights is being examined with a view to identifying how institutions responsible for the enforcement of human rights can be strengthened. It is also necessary to create the necessary awareness regarding enshrined rights and corresponding duties and obligations that must be performed and respected.
To enhance the awareness of public Officers, a quarterly Human Rights Newsletter is being published by the Ministry.
Commentary on CCPR: ARTICLE 40 of The Convention Top
CCPR/CO/79/LKA (future) HUMAN RIGHTS COMMITTEE Seventy-ninth session
CONSIDERATION OF REPORTS SUBMITTED BY STATES PARTIESUNDER ARTICLE 40 OF THE COVENANT
Concluding observations of the Human Rights CommitteeSRI LANKA
1. The Human Rights Committee considered the combined fourth and fifth reports of Sri Lanka (CCPR/CLKA/2002/4) during its 2156th and 2157th meetings, held on 31 October and 3 November 2003 (see CCPR/C/SR2156 and 2157). It adopted the present concluding observations during its 2164th meeting (CCPR/C/SR/ 2164), held on 6 November 2003. Introduction 2. The Committee notes that the report was submitted after considerable delay and combines the fourth and fifth periodic reports of Sri Lanka. It notes that the report contains detailed information on domestic legislation and relevant national case law in the field of civil and political rights, but regrets that it does not provide full information on the follow-up of the Committee’s concluding observations on Sri Lanka’s previous report. The Committee expresses its appreciation for the discussion with the delegation, and notes the answers, both oral and written, that were provided to its questions. B. Positive aspects 3. The Committee welcomes the conclusion, on 24 Friday 2002, of a cease-fire agreement between the Government of Sri Lanka and the LTTE, and expresses the hope that the implementation and monitoring of the agreement will help to achieve a peaceful and lasting solution to a conflict which has given rise to serious violations of human rights on both sides. 4. The Committee welcomes the establishment of the National Human Rights Commission in March 1997. It notes that the Commission has begun to play an active role in the area of promotion and protection of human rights in the peace process. It expresses the hope that the Commission’s monitoring and educational activities, including those projected under the Strategic Plan for 2003-2006, will receive appropriate resources. 5. The Committee notes the measures taken by the State party to improve awareness of human rights standards among public officials and members of the armed forces, and to facilitate the investigation of human rights violations. These measures include improved human rights education for all law enforcement officers, members of the armed forces and prison officers, the establishment of a central register of detainees in all parts of the country and the creation of the National Police Commission. 6. The Committee welcomes the State party’s ratification of the Optional Protocol to the Covenant in October 1997, and the training workshop on the procedure under the Optional Protocol to the Covenant co-organized by the National Human Rights Commission and the UN Development Programme in December 2002. C. Principal subjects of concern and recommendations 7. While taking note of the proposed constitutional reform and the legislative review project currently being undertaken by the National Human Rights Commission, the Committee remains concerned that Sri Lanka’s legal system still does not contain provisions which cover all of the substantive rights set forth in the Covenant or all the necessary safeguards required to prevent the restriction of Covenant rights beyond the limits permissible under the Covenant. It regrets in particular that the right to life is not expressly mentioned as a fundamental right in Chapter 11 of the Constitution even though the Supreme Court has, through judicial interpretation, derived protection of the right to life from other provisions of the Constitution. It is also concerned that contrary to the principles enshrined in the Covenant (e.g. the principle of non-discrimination), some Covenant rights are denied to non-citizens without any justification. It remains concerned about the provisions of article 16.1) of the Constitution, which permits existing laws to remain valid and operative notwithstanding their incompatibility with the Constitution’s provisions relating to fundamental rights. There is no mechanism to challenge legislation incompatible with the provisions of the Covenant (articles 2 and 26). It considers that a limitation of one month to any challenges to the validity or legality of any “administrative or executive action” jeopardizes the enforcement of human rights, even though the Supreme Court has found that the one-month rule does not apply if sufficiently compelling circumstances exist. The State party should ensure that its legislation gives full effect to the rights recognized in the Covenant and that domestic law is harmonized with the obligations undertakes under the Covenant. 8. The Committee is concerned that article 15 of the Constitution permits restriction on the exercise of the fundamental rights set out in Chapter III (other than those set out in articles 10,11,13,3 and 13.4) which go beyond what is permissible under the provisions of the Covenant, and in particular under article 4(1) of the Covenant. It is further concerned that article 15 of the Constitution permits derogation from article 15 of the Covenant, which is non-derogable, by making it possible to impose restrictions on the freedom from retroactive punishment (article 13(6) of the Constitution). The State party should bring the provisions of Chapter III of the Constitution into conformity with articles 4 and 15 of the Covenant. 9. The Committee remains concerned about persistent reports of torture and cruel, inhuman or degrading treatment or punishment of detainees by law enforcement officials and members of the armed forces, and that the restrictive definition of torture in the 1994 Convention against Torture Act continues to raise problems in the light of article 7 of the Covenant. It regrets that the majority of prosecutions initiated against police officers or members of the armed forces on charges of abduction and unlawful confinement, as well as on charges of torture, have been inconclusive due to lack of satisfactory evidence and unavailability of witnesses, despite a number of acknowledged instances of abduction and/or unlawful confinement and/or torture, and only very few police or army officers have been found guilty and punished. The Committee also notes with concern reports that victims of human rights violations feel intimidated from bringing complaints or have been subjected to intimidation and/or threats, thereby discouraging them from pursuing appropriate avenues to obtain an effective remedy (article 2 of the Covenant). The State party should adopt legislative and other measures to prevent such violations, in keeping with articles 2,7 and 9 of the Covenant, and ensure effective enforcement of the legislation. It should ensure in particular that allegations of crimes committed by state security forces, especially allegations of torture, abduction and illegal confinement, are investigated promptly and effectively with a view to prosecuting perpetrators. The National Police Commission complaints procedure should be implemented as soon as possible. The authorities should diligently enquire into all cases of suspected intimidation of witnesses and establish a witness protection program in order to put an end to the climate of fear that plagues the investigation and prosecution of such cases. The capacity of the National Human Rights Commission to investigate and prosecute alleged human rights violations should be strengthened. 10. The Committee is concerned about the large number of enforced or involuntary disappearances of persons during the time of the armed conflict, and particularly about the State party’s inability to identify, or inaction in identifying those responsible and to bring them to justice. This situation, taken together with the reluctance of victims to file or pursue complaints (see paragraph 9 above), certain an environment that is conductive to a culture of impunity. The State party is urged to implement fully the right to life and physical integrity of all persons (Art 6,7,9 and 10, in particular) and give effect to the relevant recommendations made by the UN Working Group on Enforced or Involuntary Disappearances and the Presidential Commissions for investigation into Enforced or Involuntary Disappearances. The National Human Rights Commission should be allocated sufficient resources to monitor the investigation and prosecution of all cases of disappearances. 11. While noting that corporal punishment has not been imposed as a sanction by the courts fore about 20 years, the Committee expresses concern that it is still statutorily permitted and that it is still used as a prison disciplinary punishment. Moreover, despite directives issued by the Ministry of Education in 2001, corporal punishment still takes place in schools (article 7). The State party is urged to abolish all forms of corporal punishment as a matter of law and effectively to enforce these measures in primary and secondly schools, and in prisons. 12. The Committee is concerned that abortion remains a criminal offence under Sri Lankan Law, except where it is preformed to save the life of the mother. The Committee is also concerned by the high number of abortions in unsafe conditions, imperiling the life and health of the women concerned, in violation of articles 6 and 7 of the Covenant. The State party should ensure that women are not compelled to continue with pregnancies, where this would be incompatible with obligations arising under the Covenant (article 7 and General Comment 28), and repeal the provisions criminalizing abortion. 13. The Committee is concerned that the Prevention of Terrorism Act (PTA) remains in force and that several of its provisions are incompatible with the Covenant (articles 4,9 and 14). The Committee welcomes the decision of the Government, consistent with the Ceasefire Agreement of February 2002, not to apply the provisions of the PTA and to ensure that normal procedures for arrest, detention and investigation prescribed by the Criminal Procedure Code are followed. The Committee is also concerned that the continued existence of the PTA allows arrest without a warrant and permits detention for an initial period of 72 hours without the person being produced before the court (sec. 7), and thereafter for up to 18 months on the basis of an administrative order issued by the Minister of Defence (sec. 9). There is no legal obligation the State to inform the detainee of the reasons for the arrest; moreover, the lawfulness of a detention order issued by the Minister of Defence cannot be challenges in court. The PTA also eliminates the power of the judge to order bail or impose a suspended sentence, and places the burden of proof on the accused that a confession was obtained under duress. The Committee is concerned that such provisions incompatible with the Covenant, still remain legally enforceable, and that it is envisaged that they might also be incorporated into the Prevention of Organized Crimes Bill 2003. The State party is urged to ensure that all legislation and other measure enacted taken to fight terrorism are compatible with the provisions of the Covenant. The provisions of the PTA designed to fight terrorism should not be incorporated into the draft Prevention of Organised Crime Bill to the extent that they are incompatible with the Covenant. 14. The Committee is concerned about recurrent allegations of trafficking in the State party especially of children (article 8). The State party should vigorously pursue its public policy to combat trafficking in children for exploitative employment and sexual exploitation, in particular through the effective implementation of all the components of the National Plan of Action adopted to give effect to this policy. 15. The Committee notes with concern that overcrowding remains a serious problem in many penitentiary institutions, with the inevitable adverse impact on conditions of detention in these facilities (article 10). The State party should pursue appropriate steps to reduce overcrowding in prisons, including through resorting to alternative forms of punishment. The National Human Rights Commission should be granted sufficient resources to allow it to monitor prison conditions effectively. 16. The Committee express concern that the procedure for the removal of judges of the Supreme Court and the Courts of Appeal set out in article 107 of the Constitution, read together with Standing Orders of Parliament, is incompatible with article 14 of the Covenant, in that it allows Parliament to exercise considerable control over the procedure for removal of judges. The State party should strengthen the independence of the judiciary by providing for judicial, rather than parliamentary, supervision and discipline of judicial conduct. 17. While appreciating the repeal of the statutory provisions relating to criminal defamation, the Committee notes with concern that State radio and television programs still enjoy broader dissemination than privately owned stations, even though the Government has taken media-related initiatives, by repealing the laws that provide for state control of the media, by amending the National Security Act and by creating a Press Complaints Commission (Article 19). The State party is urged to protect media pluralism and avoid state monopolization of media, which would undermine the principle of freedom of expression enshrined in article 19 of the Covenant. The State party should take measures to ensure the impartiality of the Press Complaints Commission. 18. The Committee is concerned about presistent reports that media personnel and journalists face harassment, and that the majority of allegations of violations of freedom of expression have been ignored or rejected by the competent authorities. The Committee observes that the police and other government agencies frequently do not appear to take the required measures of protection to combat such practices (articles 7,14 and 19). The State party should take appropriate steps to prevent all cases of harassment of media personnel and journalists, and ensure that such cases are investigated promptly, thoroughly and impartially, and that those found responsible are prosecuted. 19. While commending the introduction since 1995 of legislation designed to improve the condition of women, the Committee remains concerned about the contradiction between constitutional guarantees of fundamental rights and the continuing existence of certain aspects of personal laws discriminating against women, in regard to marriage, notable the age of marriage, divorce and devolution of property (articles 3,23,24 and 26). The state party should complete the ongoing process of legislative review and reform of all discriminatory laws, so as to bring them into conformity with articles 3,23,24 and 26 of the Covenant. 20. The Committee deplores the high incidence of violence against women, including domestic violence. It regrets that specific legislation to combat domestic violence still awaits adoption and notes with concern that marital rape is criminalized only in the case of judicial separation (article7). The State party is urged to enact the appropriate legislation in conformity with the Covenant without delay. It should criminalize marital rape in all circumstances. The State party is also urged to initiate awareness-raising campaigns about violence against women. D. Dissemination of information about the Covenant (article 2) 21. The fifth periodic report should be prepared in accordance with the Committee’s reporting guidelines (CCPR/C/66/GUI/Rev.1) and be submitted by 1 November 2007. The State party should pay particular attention to indicating the measures taken to give effect to these concluding observations. The Committee requests that the text of the State party’s fourth periodic report and the present concluding observations be published and widely disseminated throughout the country. 22. In accordance with rule 70, paragraph 5, of the Committee’s rules of procedure, the State party should provide information, within one year, on its response to the Committee’s recommendations contained in paragraph 8,9,10 and 18. The Committee requests the State party to provide information in its next report on the other recommendations made and on the implementation of the Covenant as a whole. |
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