GSP PLUS AND THE NEED FOR CONSTITUTIONAL REFORM: WHAT WE DID AND DID NOT SAY

Rohan Edrisinha and Asanga Welikala 

 

The Political Watch Column of the Sunday Island of 22 June titled Opposition at Sea  included a critique of an article co-authored by us which was published on Groundviews (and in the Sunday Leader) sometime ago, in which we argued that if Sri Lanka was serious about ensuring that its laws were compatible with the International Covenant on Civil and Political Rights, a constitutional amendment to its bill of rights was desirable.

We are disappointed that the columnist has either completely misunderstood several of the arguments put forward or distorted what we stated.

We recognized in our article that one of the EU requirements for the extension of the GSP Plus privileges was BOTH ratification and effective implementation of several international treaties and covenants including the International Covenant on Civil and Political Rights. As the columnist rightly pointed out, ratification is one matter, implementation another. But our point was that even with respect to ratification or making the substantive provisions of the ICCPR, a “very basic human rights document” indeed, part of the Sri Lankan legal regime, our laws, including the country’s supreme law, had to be improved. The Second Republican Constitution of 1978 has been widely recognized as fundamentally flawed, across the political spectrum which is why there is a consensus that it should be replaced. Critics from N.M. Perera to Chanaka Amaratunga have argued that it promotes authoritarianism and provides inadequate protection for the citizen from the tyranny of those who wield political power. From the days of the Premadasa All Party Conference in the early 1990s, there were proposals to mitigate some of these weaknesses by improving the chapter on fundamental rights. Unfortunately the then UNP government stubbornly refused to support such changes which were very much on the lines proposed in our article.

1. THE NEED FOR CONSTITUTIONAL RECOGNITION OF BASIC HUMAN RIGHTS

We argued that several basic rights recognized in the ICCPR were not recognized explicitly by the Sri Lankan constitution and that they should be. One of these rights is the right to life, a seminal right, used by courts in many countries to ensure freedom and dignity for people. The refutation of this proposal by the columnist suggesting that a right to life provision in the constitution would not have prevented  the abduction and killing of journalist, Sivaram, is not only puerile, but misses the point completely. Of course, legal recognition of a right does not automatically ensure its effective implementation as this requires effective enforcement mechanisms, a culture of respect for the Rule of Law and people in the relevant institutions acting with integrity. A Bill of Rights which recognizes basic human rights including rights enumerated in the ICCPR is, however, a necessary, though not sufficient guarantee for the effective implementation of such rights. Explicit constitutional recognition of the right to life for example gives it a surer foundation than merely having it recognized implicitly by some judges in their decisions or in an ordinary law that can be trumped by subsequent legislation.

Furthermore if, as the columnist argued, the essence of these “absent rights” is part of our legal regime, then why not recognize them expressly in our Constitution?       

 

2. RESTRICTIONS ON RIGHTS AND THE VALIDATION OF EXISTING LAW

The columnist completely misunderstands our critique of the constitutional provision providing for restrictions on rights, confuses Article 15 (the restriction clause) with another provision that is inconsistent with the ICCPR, Article 16 (the validation clause), and then proceeds to refute an argument we never made!

Our position was and is that both Articles 15 and 16 of our Constitution are incompatible with the ICCPR.

a)     Article 15.

We never as the columnist suggested, oppose the existence of a restriction clause. Our critique of Article 15 was with respect to the scope of the restrictions it permitted. Both the ICCPR and modern constitutions with effective Bills of Rights like South Africa, provide for restrictions on rights but in a manner that ensures that the executive’s decision to restrict rights is subject to legislative and judicial oversight and review. Restrictions on restrictions clauses are vital. There is no point in having a detailed enumeration of rights if such rights can be comprehensively curtailed at the whim of those who wield political power. The ICCPR by permitting restrictions that are reasonable or necessary in a democratic society, imposes a check on the nature and extent of the restrictions. Article 36 of the South African Constitution demonstrates that constitutional design has moved far beyond the approach of even the ICCPR.

The rights in the Bill of Rights may be limited only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom taking into account all relevant factors including-

a)    the nature of the right;

b)    the importance of the purpose of the limitation;

c)     the nature and extent of the limitation;

d)    the relation between the limitation and the purpose and

e)     less restrictive means to achieve the purpose. 

Since we realize that such a restriction clause will shock our executive convenience obsessed politicians and members of the legal community, we proposed at the very least, a more modest ICCPR style restriction clause.

b)    Article 16

Article 16 validates ALL existing laws written and unwritten, even though such laws violate the chapter on fundamental rights in our Constitution. This is an unprecedented constitutional provision that undermines constitutional supremacy, human rights, and has shocked constitutional scholars around the world. Since an identical provision existed in the First Republican Constitution of 1972, it is ironical that the effect of this and the present Article 16 is to protect all laws enacted before Sri Lanka became a republic in 1972, including ordinances passed during British colonial times, from constitutional scrutiny and challenge. It was deeply regrettable that the Supreme Court in its recent advisory opinion on the ICCPR, chose not to deal with this anomaly.

3. AN APPEAL WITHIN SRI LANKA

The columnist once again misrepresents our third main argument. We pointed out that under the  Constitution of 1978, fundamental rights applications with respect to violations by executive and administrative action must be filed in the Supreme Court which has sole and exclusive jurisdiction in such matters. Since the highest appellate court in the country, therefore, exercises original jurisdiction in such cases, the consequence is that there can be no appeal. We argued that this is unsatisfactory in terms of principle as there should be at least one opportunity and forum for appeal in the interests of justice. We quote the relevant paragraph from our article-

A further general point to note in respect of the ‘full implementation’ of the ICCPR is that Article 126 of the Constitution vests the sole and exclusive jurisdiction in respect of fundamental rights with the Supreme Court. While at first glance this might seem to be an indication of the seriousness accorded by our Constitution to fundamental rights, international best practice, and indeed our own experience suggests that, there should be provision for at least one appeal from a decision of any court. This will also free the Supreme Court from the burden of trying facts, only take up cases of constitutional significance on appeal, and thereby be able to articulate a more coherent fundamental rights jurisprudence. 

The last sentence makes it absolutely clear that we proposed that a local court such as the High Court should exercise original jurisdiction in fundamental rights matters with an appeal to the Supreme Court so that the Supreme Court, like its counterparts around the world could focus on questions of law rather than questions of fact and act in an appellate capacity. At no stage in the article did we propose that there should be an appeal to a foreign court, as claimed by the columnist.

 

CONCLUSION

Many of the arguments made by the columnist are similar to those advanced by Minister Prof. G.L. Peiris in recent interviews and public statements. Their argument is basically that Sri Lanka needs do nothing more to meet the requirements of ratification and effective implementation of the ICCPR in Sri Lanka. We believe that this is a highly risky and arrogant approach given the widely recognized crisis with respect to both governance and human rights in the country. The government should demonstrate some willingness to engage with civil society and be self critical with respect to its human rights record. Our argument is that, apart from the gulf between the law in the books and the law in practice with respect to the Rule of law, media freedom, human rights and governance (eg the non-implementation of the 17th Amendment and parts of the 13th Amendment), full compliance with the ICCPR requires change in the constitutional text as well. The proposals outlined in our article are practical, will have a real and substantial impact on the human rights situation in the country and are certainly not, as the columnist states, “curious legal abstractions.” The extension of the GSP Plus privileges is essential for the garment industry including the workers and for the economic well being of the country. We believe that certain changes need to be made and certain things done, to ensure that the privileges are extended; that they can be done and that it is desirable for the country that they be done. It will help improve the human rights situation in the country, help restrain the executive, make the judiciary less complacent and promote access to justice in addition to ensuring that GSP Plus is extended- a win -win situation for all.