A proposal for a new chapter on fundamental rights and freedoms in the Constitution

By Dr. Asanga Welikala (University of Edinburgh), Dr. Dinesha Samararatne (University of Melbourne, University of Colombo), Dr. Kalana Senaratne (University of Peradeniya), Dr. Kumaravadivel Guruparan (University of Oxford), and Dr. Gehan Gunatilleke (Harvard University)

This proposal for a new Chapter on Fundamental Rights and Freedoms in a future constitution was prepared in response to the public invitation to submit proposals to the Ministry of Justice Experts Committee to Draft a New Constitution for Sri Lanka. This proposal is made on the following assumptions: 

1. That the new Constitution will guarantee irreversible, meaningful, and extensive devolution of power within a united State, and, accordingly, all references to the ‘State’ in our proposals are references to public authorities and organs of the State at all levels, including devolved units and local government.

2. That the courts (including at the devolved level) will be granted the power to exercise comprehensive judicial review of legislation and executive action, and otherwise exercise judicial powers and duties under the proposed chapter, subject to appeal.

3. That in addition to the substantive fundamental right with respect to language in the proposed chapter, there will be a separate chapter on ‘Language’, which includes the substantive principles reflected in the current chapter on ‘Language’ in the 1978 Constitution.

4. That the limitation of rights and freedoms (in terms of Article 14, below) is premised on the principle that human freedom is the norm and limitations the exception. Our proposal for a general limitations clause (as opposed to the enumeration of discrete grounds of restriction attaching to each fundamental right or freedom) is founded on this principle. The rationale of this approach is to ensure that constitutional limits are placed on the scope of permissible restrictions on fundamental rights and freedoms, and to ensure permitted grounds of restriction are not used to extinguish the essential substance of fundamental rights and freedoms. The burden of proof for justifying a limitation lies in all cases with the State.

5. That any provision of this Chapter must be interpreted in the spirit of retaining a plural legal system. We emphasise that any attempt at homogenising the personal laws of the country under a uniform code would have an adverse impact on the plural character of our legal system. Any attempt by the State, including the Judiciary, to bring personal laws in line with this Chapter must seek to advance both the promotion and protection of individual rights and freedoms, and the value of legal pluralism.

FUNDAMENTAL RIGHTS AND FREEDOMS

Foundation

1. Fundamental rights and freedoms form the cornerstone of democracy in the Republic of Sri Lanka, and are based on the values of human dignity and autonomy. Any limitation on the enjoyment or exercise of fundamental rights and freedoms are permissible only to the extent provided herein.

2. All persons have duties to other persons, and to the community to which they belong, and have the responsibility to strive for the promotion and observance of the rights and freedoms recognised in this Chapter.

Duties of the State

3. (1) All organs of the State, including its Legislative, Executive, and Judicial branches, at all levels, must respect, protect, promote and fulfil fundamental rights and freedoms, and prevent the violation thereof.

(2) The duties of the State to respect, protect, promote and fulfil fundamental rights and freedoms shall include the adoption of suitable policies, the allocation of adequate resources, and the effective implementation of all relevant budgetary commitments.

(3) Such duties of the State shall be owed to all natural persons and legal persons. Such duties shall be owed to legal persons to the extent required by the nature of the right or freedom concerned, and the nature of that legal person.

(4) The State shall provide effective remedies for the protection of all persons from the infringement or imminent infringement of their fundamental rights and freedoms due to the actions of private actors.

(5) The State, including its officers, agents, and functionaries who perform functions or exercise powers of a public nature shall have the duty to expeditiously provide reasons for their decisions. Every person affected by such decisions shall have the right to receive such reasons in writing.

Inconsistency

4. (1) All written and unwritten laws that are inconsistent with any provision of this Chapter shall be void to the extent of such inconsistency. 

(2) The Provincial High Court, and the Supreme Court, as the case may be, in the course of exercising its jurisdiction under this Chapter, may declare any such laws to be inconsistent with this Chapter. 

(3) It shall be the duty of the State to repeal or amend such laws, and in the case of the courts to develop and interpret such laws, to the extent necessary to ensure that such laws are consistent with the provisions of this Chapter.

Right to life

5. Every person has the inherent right to life. No person shall be arbitrarily deprived of their life, or punished with death.

Right to equality

6. All persons are equal before the law, and are entitled to the equal protection of the law.

Right to non-discrimination

7. (1) No person shall be discriminated against on the grounds of race, religion, ethnicity, colour, sex, gender, sexual orientation, disability, language, political or other views, property, place of residence, or on any other similar ground.

(2) The State shall provide equal rights and opportunities for persons of all genders. The State shall adopt all reasonable measures to ensure the equality of persons of all genders.

(3) The adoption of temporary special measures aimed at accelerating equality between persons of all genders shall not be considered discrimination.

(4) All persons and communities shall have the right to develop their culture, to use their language in private and in public without any discrimination, to preserve their personal laws, and to freely pursue their economic, social and cultural development to the extent consistent with the provisions of this Chapter.

(5) Every person has the right to receive public services and official correspondence, and to interact with any public officer or institution, in a language of their choice. The State shall take all necessary measures to ensure such right. All official signage and documentation shall be in Sinhala, Tamil and English.

(6) No person shall, on any ground specified in paragraph 1 of this Article, be subject to any disability, liability, restriction or condition with regard to access to public institutions, shops, public restaurants, hotels, places of public entertainment, and places of public worship of their own religion.

Best interests of the child

8. (1) A child shall be any person under the age of eighteen years of age;

(2) In all matters concerning children, whether measures are undertaken by public or private institutions, courts of law, administrative authorities, or legislative bodies, the best interests of the child shall be the primary consideration.

(3) The institutionalisation, including detention, of any child shall be the measure of last resort and for the shortest appropriate period of time, and shall be solely in the best interests of the child.

(4) Every child shall have, without discrimination on any ground specified in paragraph 1 of Article 7, the right to such measures of protection as are required by their status as a minor, on the part of their family, society and the State.

(5) Every child shall be guaranteed a minimum standard of living, through appropriate means, including through a scheme of universal child benefits.

Persons with disabilities

9. The State shall adopt necessary measures to ensure that persons with disabilities can meaningfully exercise their rights and freedoms under this Chapter.

Procedural rights

10. (1) Every person who is arrested or detained shall be informed, at the time of arrest or detention, of the reasons for their arrest or detention, and shall be promptly informed of any charges against them.

(2) Every person who is arrested or detained on a criminal charge shall be brought promptly before a judge and shall be entitled to trial within a reasonable time or to release. It shall be the general rule that persons awaiting trial shall not be detained in custody.

(3) Every person who is arrested shall be, as a general rule, granted bail, and the refusal to grant bail shall be the exception. 

(4) Every person who is deprived of their liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of their detention, and order their release if the detention is not lawful.

(5) Every person deprived of liberty shall have, without delay, the right to communicate with and be visited by their relatives, attorney-at-law, or any other person of their choice. 

(6) Every person charged with an offence shall be entitled to the following minimum guarantees:

(a) The right to be presumed innocent until proven guilty according to law;

(b) The right to be informed promptly and in detail, in a language which they understand, of the nature and cause of the charge against them;

(c) The right to adequate time and facilities for the preparation of their defence and to communicate with legal counsel of their own choosing;

(d) The right to be tried without delay in their presence, and be entitled to defend themselves in person or through legal assistance of their own choosing, and be informed, if they do not have legal assistance, of such right; 

(e) The right to legal assistance assigned to them in any case where the interests of justice so require, and without payment by them in any such case if they do not have sufficient means to pay for it;

(f) The right to examine, or have examined, the witnesses against them and to obtain the attendance and examination of witnesses on their behalf under the same conditions as witnesses against them;

(g) The right to have the free assistance of an interpreter if they cannot understand or speak the language used in court; and

(h) The right not to be compelled to testify against themselves or to confess guilt.

(7) No person shall be held guilty of an offence on account of any act or omission which did not, at the time of such act or omission, constitute such an offence, and no penalty shall be imposed for any offence more severe than the penalty in force at the time such offence was committed. Nothing in this Article shall prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to international law, including customary international law, applicable to Sri Lanka.

Absolute freedoms

11. (1) Every person is born free, and with inherent and inviolable dignity. The freedom of the individual shall include:

(a) The freedom from torture, cruel, inhuman, or degrading treatment or punishment whether mental or physical;

(b) The freedom from unlawful or arbitrary arrest or detention, or any other form of unlawful or arbitrary deprivation of personal liberty;

(c) The freedom of thought and conscience, including the freedom to have or to adopt a religion, belief, or opinion of one’s choice without coercion; and

(d) The freedom from forced or compulsory labour.

(2) The freedoms recognised in this Article shall not be subject to any limitation or interference.

Freedoms 

12. (1) Every person shall have:

(a) The freedom from physical or mental violence, 

(b) The freedom from interference with one’s bodily integrity;

(c) The freedom to manifest a religion or belief, including the freedom to profess, practice and propagate religion or belief;

(d) The freedom of expression, including publication, and the commemoration of the deceased;

(e) The freedom of information, including the freedom to access any information held by the State, and information held by another person that is required for the exercise or protection of any rights or freedoms recognised in this Chapter;

(f) The freedom from interference with one’s privacy, family, home or correspondence;

(g) The freedom to engage in a lawful occupation, profession, trade, business or enterprise; 

(h) The freedom of education, which shall include the freedom to found and maintain educational institutions;

(i) The freedom of peaceful assembly;

(j) The freedom of association, including the freedom to form and join a trade union, and participate in trade union action;

(k) The freedom to enjoy and promote one’s own culture and to use one’s own language;

(l) The freedom of movement, and of choosing one’s residence within Sri Lanka; and

(m) The freedom to return to one’s place of nationality.

Data protection

13. (1) Every person has the right to the protection of personal data concerning them. Such data must be processed fairly for specified purposes, and on the basis of the consent of the person. 

(2) Every person has the right to access data concerning them.

(3) Every person shall have the right, without undue delay, to the rectification, erasure or blocking of personal data concerning them, provided such data is irrelevant, incomplete or inaccurate. Taking into account the purposes of processing, every person shall have the right to have incomplete personal data completed, including by means of providing a supplementary statement.

Limitations

14. (1) Any limitation on any right or freedom recognised in Articles 12 and 13 shall be:

(a) in strict accordance with law;

(b) necessary, reasonable, non-discriminatory, and justifiable in an open and democratic society;

(c) solely in the interest of public security, safety or health, or for the purpose of protecting the duly recognised rights and freedoms of others; and

(d) the least restrictive means through which an interest or purpose under subparagraph (c) of this paragraph may be advanced.

Right to Property

15. (1) Every natural person has the right to own and inherit property.

(2) The expropriation of private property shall only be permitted for public purposes and in cases of a pressing social need, and shall be carried out subject to the expeditious payment of full and fair compensation to all persons affected by such expropriation.

Right to education

16. (1) Every person has the right to primary and secondary education. The State shall provide such education free of charge.

(2) Every person has the right to tertiary education, which the State, through reasonable measures, shall make progressively accessible.

(3) The State shall, through reasonable measures, make appropriate technology for educational purposes progressively accessible.

(4) The State shall respect and protect academic freedom, and the autonomy of higher educational institutions.

Right to health, food security, and social security

17. (1) Every person has the right to access health care services, including reproductive health care, mental health services, adequate food and water, and sanitation.

(2) Every person has the right to social security, including, if they are unable to support themselves and their dependants, appropriate social assistance.

(3) The State shall take all reasonable legislative and other measures, within its available resources, to guarantee the highest attainable standard of healthcare and to achieve the progressive realisation of the rights specified in paragraphs 1 and 2 of this Article.

(4) No person shall be refused emergency medical treatment.

(5) The State shall reasonably regulate, for the purpose of protecting the rights contained in this Article, all health care institutions and the quality of medical services, and the production and circulation of pharmaceutical products.

Right to housing

18. (1) Every person has the right to access adequate and dignified housing.

(2) The State shall take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of the right specified in paragraph 1 of this Article.

(3) No person shall be arbitrarily evicted from their home, or have their home demolished, without an order of court made after considering all relevant circumstances, and the provision of alternative housing. 

Environment

19. (1) Every person has the right to live in a healthy environment, to full enjoyment of the natural environment, and to receive any environmental information held by the State in a timely manner. 

(2) The State shall adopt all reasonable measures to ensure environmental protection and the sustainable use of natural resources, and to address climate change, taking into account the interests of current and future generations, and the right of every person to participate in environmental decision-making.

Standing

20. (1) All persons temporarily or permanently residing in Sri Lanka, including citizens of other states, and stateless persons, shall have the rights and freedoms specified in this Chapter.

(2) Every person is entitled to petition the Provincial High Court in respect of an infringement or imminent infringement, by State action, of any fundamental right or freedom to which such person is entitled under any provision of this Chapter, or in respect of any failure of the State to fulfil any duty specified in this Chapter. Nothing in this Article shall preclude a person from petitioning the Provincial High Court solely in the public interest.

Remedies and redress

21. Where any person alleges that any fundamental right or freedom has been infringed or is about to be infringed by State action, or that the State has failed to fulfil any duty specified in this Chapter, they may themselves, or by their representative in accordance with such rules of court as may be in force, apply to the Provincial High Court by way of petition in writing addressed to such Court praying for relief or redress in respect of such infringement. The Provincial High Court may grant such relief or redress, including orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, or make such directions as it may deem just and equitable in the circumstances with respect to such petition.

Public officers etc.

22. Where a complaint concerns an infringement or imminent infringement of a fundamental right or freedom of a public officer or government institution, in the course of their official functions, such officer or institution shall first exhaust all other effective remedies provided by law prior to petitioning the Provincial High Court under this Chapter.

Appeal

23. Any person aggrieved by an order made by the Provincial High Court in any petition filed under this Chapter shall have a right of appeal to the Supreme Court against such order within three months of the date on which such order is made.

Interpretation

24. (1) When interpreting any provision of this Chapter, a court:

(a) shall promote the values that underlie an open and democratic society;

(b) shall ensure such interpretation is consistent with Sri Lanka’s obligations under international law; and

(c) may consider foreign law, and the jurisprudence of international courts, tribunals, and treaty bodies.