Hulftsdorp Hill

15th March 1998

FR: a hodgepodge package

By Mudliyar

Justice Kulatunga

At a recent TV panel dis cussion UNP's Susil Moonesinghe called K. M. M. B. Kulatunga, President's Counsel and retired Supreme Court judge, a 'dodger'. It was hilarious, as it was obvious to any viewer with even a modicum of intelligence that it was Mr. Moonesinghe who was dodging the questions.

It was the UNP that had dodged the proposal of the Government to settle the ethnic strife for a considerable time. The UNP responded only when the Government continued its attack on the opposition and ridiculed its wishy washy stand on the package. It was people like Mr. Moonesinghe who veered the course of the UNP against the package with his anti conciliatory line. He belonged to a group of UNP MPs who do not believe that the Tamils have grievances. They are no different from some Tamil political leaders who tend to ignore or gloss over the grievances, but speak of aspirations based on the Thimpu principles.

J. R. Jayewardene as a young politician advocated Sinhala as the official language. He was well supported by Dudley Senanayake. Mr. Bandaranaike after he returned from England opposed Universal franchise and advocated a federal system. Then he became the first Prime Minister to be elected on a racial and religious platform, like the BJP today. Ranasinghe Premadasa had problems in the Colombo Central from the Muslims and Tamils who perceived him to be a communalist. At that time he was contested by a powerful politician from the Muslim community. The remarks he made about his ethnicity did not go well with the minority voters. The realization of the folly of advocating racial or communal politics in Sri Lanka comes with age or defeat.

At the TV discussion one of the most important revelations about the government proposals for constitutional reform was made by Justice Kulatunga. He drew the attention of the public to the fundamental rights chapter contained in the proposals. He said if the constitution is adopted in the present form, to amend a provision generally inconsistent with devolution would not only require 2/3 majority in parliament and approval by the people at a referendum but also the approval of regional council.

The people of this country, even the intellectuals and the minorities and the middle classes and the poor, are confused about the amendments to the constitution and the package. The majority are completely ignorant of the provisions and how it would affect them in their daily life. The majority look upon the Sinhala Commission and other similar organizations with racial tones with suspicion. The majority may even be sympathising with the government's effort to end the ethnic strife. Even the much publicised seminars orchestrating the view that the present proposals were about dividing the country into regions which would ultimately result in secession and the establishment of a separate state has failed to gather momentum. The main reason is that all those sections opposed to the package in the south seem to be racial and communal organisations who do not accept that the Tamils have grievances.

When a bomb explodes the masses get pushed towards any proposal that would bring peace to this country. That is why the statement of the President that she agreed to give Prabahkaran 10 years to rule the Northern province, even without an election, has failed to create much public outrage.

It is unfortunate that there is no organisation in the south — independent and apolitical — which could educate the public about the government's constitutional reforms, the advantages and inherent weaknesses and whether it would bring peace.

It was with this background that I listened to Justice Kulatunga, as I thought he spoke sense as against others who defended their party stand. He referred to his booklet, 'A legal Analysis of the Government Proposals for Constitutional Reforms — An Alternative Solution to the Current Disorder in Sri Lanka."

Justice Kulatunga, who had a distinguished career both at the Attorney General's Department and as a Judge, displayed sturdy independence and won the admiration of the bar. Having read the booklet, I think the contribution he has made to the country is of equally or of greater importance than the service he rendered as a Judge.

In our constitution, the most important chapter guaranteeing the rights of the people is the chapter on Fundamental Rights. One of the main lacunae in the present constitution on fundamental rights was the absence of 'Right to Life', and provisions relating to public interest litigation.

H. L. De Silva P.C. when he was the BASL president lamented that there was no entrenchment of the right to life in the constitution, when the late Wijayadasa Liyanarachchi was allegedly killed by the police. Public interest litigation has developed in the democratic world, and has taken a firm root in the system of justice where persons not directly affected by a violation can petition to the Supreme Court on behalf of the victims. In India from polluting environment, protecting the Taj Mahal, to the appointment of Judges to the Supreme Court, are taken by lawyers to the Supreme Court on behalf of the public. I believe any right thinking person interested in liberty should welcome the addition of these two new articles to the chapter on fundamental rights. I believe a chapter on fundamental rights would only be complete with the addition of these provisions.

But what has happened in the new proposals is that someone in the Ministry has virtually imported many provisions from many declarations and embodied them in the new proposals. It is not the work of a skilled draftsman, but of an amateur who had done a cut and paste job.

According to Justice Kulatunga, "the new draft has dismantled the existing Chapter [iii] and produced a jungle of rights. This object has been achieved by copying at random, provisions from the Universal Declaration of Human Rights, 1996 covenants on human rights, European Convention on Human Rights, the Indian Constitution and the Code of Criminal Procedure Act.

The right to enjoy and promote culture which appears in Article 27(10) of the existing constitution on directive principles of state policy, has been brought into the fundamental rights chapter. The right to property has been copied from the Universal Declaration of Human Rights (which does not create binding obligations).

The draft also created new rights such as the right of a person arrested to communicate with a relative or a friend and to consult an attorney-at-law. Further, the draft adds new rights such as the freedom to leave the Republic, rights to private and family life, rights of children, rights to safe condition of work and social rights to health care, food and social assistance."

According to Justice Kulatunga the new proposals entrench all rights which appear in International instruments. He criticises these entrenchments as based on wrong assumptions that all rights must be entrenched.

"Only the core rights are entrenched, whilst most other rights such as those relating to Criminal Procedure, Children's, workmen's social welfare, prosperity, privacy, entitlement of arrested persons to contact relations or to retain lawyers can be established by normal law, particularly for the reason that these are matters which may have to be modified periodically. If they too are entrenched in the constitution, any change would ordinarily require an amendment of the Constitution."

He concludes his comments on the chapter on Human Rights saying that "The effect of the unwieldy scheme in the draft would be to compel persons who had several remedies under ordinary law to go before the Supreme Court to enforce rights whenever they are infringed by state action including judicial action. The 11 judges of the Supreme Court will not be able to cope with such a volume of work. The provisions of Article 30(1)(c) which seek to introduce public interest litigation will also result in an increase in the volume of work. This would lead to a denial of justice to large segments of the people, in particular to aggrieved persons who cannot afford to petition the apex court due to the cost of litigation."

The approach of those who drafted the present constitution to the fundamental rights chapter clearly exhibits the lack of practical wisdom. Like children who would dream of living in a house made out of chocolates, they had tried to encompass every conceivable right, they have read or seen or heard.

For instance, the right to retain a counsel of your choice, if entrenched would negate the judicial process which is already burdened with delays. If an adjournment is not given on the basis that the counsel of clients choice is not available, the client may, if he is wealthy and is playing a waiting game, would rush to the Supreme Court. Similarly the other provisions copied from various human rights declarations, which are in itself guidelines to be followed by governments are entrenched will cause a massive influx of application to the apex court.

But on the other hand certain pernicious undemocratic provisions in the Present Constitution like the imposition of civic disability upon recommendation of a special presidential commission and consequential expulsion of a member of parliament is retained.

From the time the Special Presidential Commissions were established during the Jayewardene regime, they have been severely criticised by the discerning public as politically motivated.

The P.A by a special motion in Parliament vitiated the recommendation of the Special Presidential Commission on the imposition of civil disabilities on Sirimavo Bandaranaike. But the very same PA is using Commission reports to oil their rusted machinery to keep it alive and kicking. The UNP has not made a public pronouncement that it intends not to use the Special Presidential Commission laws to punish opponents.

Similarly the impeachment of the President has been removed from the proposals and the President has been given unqualified immunity.

The minorities who seem to think that the proposals would end their grievances and fulfill their aspirations would rethink about their stand when they are confronted with a Regional Council in the south.

This is what Justice Kulatunaga says: "Another feature of the devolution package which would affect the minorities prejudicially is the provision for power sharing in the Board of Ministers in the regions on the basis of the proportion of votes polled by parties or groups at the election. Thus in all Sinhala areas, the UNP and SLFP and perhaps smaller parties will form the board of ministers. Hence the need to take in members of the minority communities into the executive organ will no longer exist.

As a result, Tamils and Muslims in those areas will be deprived of the opportunity of joining the executive organ in the administration. In the North, in all probability, there will be one party rule. At the same time in the Parliament at the centre the old system will continue and there will be no constitutional right to power sharing in the executive. The devolution package will therefore, be counter productive of its object."

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