Human Rights are simply the rights you
have because you belong to the ‘Homo Sapiens’ species. It’s how you
instantly expect and deserve to be treated. According to the United Nations (UN),
there are thirty human rights that they have adopted through the Universal
Declaration of Human Rights[1]
(UDHR) (See annexes A), the most widely accepted publication on the
subject. But UDHR is not the beginning of Human Rights.
At first, there were no Human Rights. If
you were born into the correct group, you are safe. And if you don’t, then you
are always at risk. Even the basic right, which is the Right to life was not
protected. Then in 593 BC an emperor named “Cyrus The Grate[2]”
conquered the ‘Babilon’ and came into power. He made revolutionary changes
to the existing governing process by releasing all the slaves and letting every
man choose their religion without considering the group they were born into.
Which jumpstart the practice of Human Rights. But it took a long journey
through history, thousands of years, and two known World Wars to come to the
place where it stands today.
Why is it necessary to adopt new
Fundamental rights for Sri Lanka?
In Sri Lanka, though we practiced the
Human Rights concept with the influence of Buddhists and other Religious as well
as moral and cultural influences, there was a need to adopt them into the
Domestic legal system by codifying them properly. To fulfill this requirement,
Sri Lanka adopted Human Rights into the constitution as Fundamental Rights (FR)
Which the state is bound to protect in 1972[3]
with the first Republic Constitution. Then again in 1978 with the new
constitutional reformation[4] a
new FR chapter was introduced, containing selected Human Rights from
internationally accepted Human Rights treaties. Since Human Rights conventions
would not be treated differently, unless it has embodied in local legislation,
it is important to have an FR Chapter with a proper execution mechanism. Though
we have 20+ constitutional amendments none of them made progressive
changes to the FR chapter. Therefore, this is high time for a new FR chapter.
Hence, I’d like to propose the following Human Rights to promote to Fundamental
rights chapter in the Sri Lankan Constitution;
Right to privacy.
Though it is I propose to adopt the
Right to privacy in Sri Lanka as a Fundamental Right, it is not a novel
concept. It was there among the Human Rights From the beginning since they
drafted the UDHR. later it was recognized under ICCPR[5]
(See annexes A), Child Rights Convention[6],
and International government the protection of all migrant workers and
members of their families[7] as
a basic human right due to the important role it plays in society in relating
to the basic Human desire to live free.
Privacy is not just a legal or
technological issue but a complex social problem with many aspects. The
effective protection of the right to privacy requires the involvement and
contribution of a variety of groups and actors.
Since we live in a digital era with the
word the Right to Privacy what instantly comes to our mind is data protection
which is just a subset of the right itself. The Word privacy itself contains a broader scope and ambiguity. Many Scholars in the Human Rights Field identified
that Privacy contains four main areas[8].
1.
Informational
Privacy.
This is data protection. Every person
has a right to protect his data and to access the data which concerns him
(e.g.- health records). The right to erasure and block his data and also the
right to complete incomplete personal data by providing supplementary statements
must be recognized under the Right to privacy.
2.
Spatial
Privacy.
Spatial privacy is the privacy right to
the geographical location. Nevertheless, it's not an FR in Sri Lanka yet to be
identified as a delictual offense under ‘Action Injuriarum’. In
the case of Nadarajah v Obesekara[9]
Sri Lankan Supreme Court identified the ‘Invention of privecy, and the right to
an individual to personal space exists.
3.
Decisional
Privacy.
Every person has a right to make
decisions about his personal life without being influenced. 2
4.
Bodily
Privacy.
This concerns the protection of people’s
physical selves against invasive procedures such as genetic tests, drug
testing, and cavity searches.
According to the UDHR under article 12[10]
and ICCPR article 17[11],
the right to privacy has been recognized. Though Sri Lanka has ratified and
enacted local legislation for the ICCPR still case G stated that “...Constitution nor
the ICCPR act protects the right to privacy as a Fundamental Right…”. Hence
with all the legal enactments still Sri Lanka was unable to recognize the Right
to Privacy itself. We have legislation to protect data privacy such as the
Banking Act, Sri Lankan Telecommunication Act, Intellectual Property Act, and Computer Act, and spatial privacy has been recognized by the court with cases
like Chinnappa et al v Knakar et al[12]
where it recognizes the household privacy and the case of Abraham v
Hume[13],
where it was decided the owner or the superintendent of an estate enter into
line, is an invasion of privacy, provides substantial legal protection for
victims of such cases. But certain situations fall under Decisional privacy and
bodily privacy may be left unanswered because of the lack of legal provisions.
Hence to Identify the Right to Privacy in its full potential it is important to
make it a part of the Fundamental Rights chapter for our people to lead a life
safe from public scrutiny and make personal decisions without interference. to
achieve this target and let Sri Lankan citizens live with dignity and without fear of invade privacy by authority I propose the Right to Privacy to
be added as a Fundamental Right to Our constitution.
Right to Social Security
The right to Social Security is a widely
accepted Economic, Social, and cultural right in the world. Unlike most other
Rights this concept does not stand alone. It’s an umbrella concept for
many other basic Human Rights such as the Right to health, Right to
employment, Right to Independent living and education, etc[14].
This Fundamental concept has been identified by the UDHR article 22[15]
and later with article 09[16]
of the International Covenant on Economic, Social, and Cultural Rights
(ICESCR).
In accompanied by article 25 of UDHR
which is the Right to an adequate standard of living it is possible to
expand the area of the Right to social security beyond the groups mentioned in
article 09 which is practiced in Scotland. Hence, every person has a right to
social security that enables them to fulfill an adequate standard of living. The
UN committee on ICESCR has identified certain essential fields to establish a
proper Social security system as follows [17],
1.
Availability - A proper system to support the people
in situations where they can not stand by themselves has to be established by
the government and managed with proper and efficient management.
2.
Adequacy - the system must be adequate to
facilitate each person who requires the support.
3.
Accessibility- accessibility is not only the
availability to all but ability to the afford such a system as well. For
example, if there is a social security system for Healthcare support based on a
monthly contributory insurance policy. The contribution should not affect the
person's other basic expenses like food clothes and education.
The establishment of such a system would
benefit those who lack work-related income because of disabilities or old age, are unemployed, and are physically unwell[18].
And those who cannot afford health, and finally those who do not have enough
family support.
Though the Umbrella Right of Right to
Social Security is not present in Sri Lanka it is visible that the features of
the Right to Social Security are present in Sri Lanka. We do have a proper
Social Security system for the benefit of old and disabled people, “Samurdhi”
for unemployed and low-income people to support their lives, we do have Free
health services and free education, and the system is almost Perfect. Also, though
we have not identified Social security as a Fundamental right, some other areas cover it like the Right to health care like Ceylon Tobacco V
Minister of Health [19]
where the court held that the cover of the cigarette packet should cover 50% to
60% of the graphical health warning to protect the public’s right to health. The right to health is not identified Fundamental Right in the constitution of
Sri Lanka. In the case of State Distilleries Corporation v Rupasinghe,[20]
the court held that an employer cannot fire an employee with mala fide
intention without a good reason. It was a moment where they upheld the right to
employment and when it comes to the Right to Education the court of Sri Lanka
with the case of Visual Bhashitha Kavirathne V Commissioner general of
examination[21]
it was held that everyone has the equal right to education and the equality
among equals was upheld’
With these cases and other establishments in Sri Lanka, It is clear that as a nation we have fulfilled the requirements that the Right to Social Security requires. Also, the rights covered by the umbrella concept were upheld by the courts with the use of judicial president theory and judicial criticism. Thus, introducing the Right to Social Security will supply the ground to strengthen the available resources. Also, it will allow the citizens to take action in a wide range. There for the sake of strengthening the existing legal regime and to provide the citizens with more rights as well as for the court to interpret the law in a wide scope, I will propose the Right to Social Security to be a part of the Fundamental Rights chapter.
Right to Democracy
Unlike other Human Rights, Democracy
is a controversial right that was subjected to many debates about its
acceptability as a separate Human Right. Prima facie, Democracy is “Rule
by the people”. Many scholars argue Democracy is just a governing method
and not a Human Right. To untie this knot, Democracy may have been defined more
comprehensively; Since Democracy finds the will of the people in a Democracy
every important decision is taken through a vote. Because of the fact every one
fit enough to make their own decision to participate in this procedure the
result constitutes justice. There we can conclude that Justice requires
Democracy. And, notably, the democracy that justice requires is associated with
the concept of Equality. By bearing this in mind; Democracy can be defined
as a voluntary association of people wanting to live in a healthy society that
respects their right to their own opinions, beliefs, and interests, a condition
that requires that in terms of decision-making, all are considered as
equals.[22]
To be secure, members of society may
have mutual respect. For that, everyone must be equal. Democracy provides this
aspect to the public.
Furthermore, Human rights fundamentally
can be divided into two parts.[23]
1.
Moral Rights
2.
Legal rights
Moral Rights exist when interest is
regarded as a sufficient ground to hold someone under a duty to respect the
interest vis-a-vis the right holder. For an interest, all related duties may
not be identified, hence, the relationship between interest and duties is not
logical. Because not all duties become moral rights. Then legal rights, legally
protect moral rights. Also, to be a legal right it has to be a member of a
moral right family first. Since Democracy is the base ground for all Human
Rights and more importantly is a necessary reflection of Moral equality
democracy is a moral right itself. Also, all Human Rights are based on the
moral equality of humans. There to protect all Human Rights, it is important to
make Democracy a Legal right.
Many states which considered top Human
Rights protectors have identified the Right to Democracy as a legal right. In
the USA, the Inter-American Democratic Charter mentions that “People
of the American have the right to democracy …”. Furthermore, the Resolution
on Promotion of the Right to Democracy, which was also introduced by the
USA mentions the Right to Democracy is a separate Human Right.
According to UDHR article 21 and ICCPR,
article 25, the UN and its ratified countries including Sri Lanka have
identified Democracy as a Human Right. But since those articles have only
focused on the fact of the Right to have a Democratic Government; to face
current Human rights issues I’d like to propose the Right to Democracy must be included in our constitution based on the essential elements of Democracy which
are[24];
·
Respect
for human rights and fundamental freedoms,
·
Right
to access to power and its exercise following the rule of law
·
The
Right to demand periodic free and fair elections by universal suffrage and by
secret ballot.
·
Right
to the pluralistic system of political parties and organizations
·
The
separation of power.
·
The
independence of the judiciary.
·
Right
to demand transparency and accountability in public administration.
·
Right
to have free, independent, and pluralistic media.
Which are untouched grounds of the Sri Lankan Fundamental Rights chapter. Since we do not recognize Democracy as a fundamental right though the subject area of Democracy is deep we still touch the surface. We only have a limited number of cases like Karunathilaka V. Commissioner of Elections[25] where the court recognizes the casting of votes and expressing opinions on political platforms under free expression. Kodeswaran v AG[26] identified the Official Language Act as bad in law because we only have limited grounds to protect Democracy which is the basis of all other human rights. Hence adding the Right to Democracy to the Fundamental Rights chapter will widen the area of area for judicial review and will strengthen the ruling on violations of any Human Rights.
Conclusion
Sri Lanka is a country where it gives
very little validity to Human Rights in many cases. Inadequacy of existing
legal provisions, lacking legal education, and most importantly inadequate
knowledge about Fundamental Rights have caused this situation. Not only that
but also the tendency to go beyond the Democracy towards an ultra-nationalistic
fascist political practice because of less known about the politics also causes
this unwelcome situation. In Sri Lanka, we still use the Fundamental Rights
which introduced in 1978. Though 20+ constitutional reformations were introduced none of them went beyond either increasing presidential powers or
reducing them except the one that introduced the Right to Information. There
today we are in a position where a constitutional reformation focuses on strong
and widespread fundamental rights. For this, we need to introduce Fundamental
rights which can act as Umbrella concepts other than introducing single
standalone rights. Because of that to fulfill the above requirement I believe
that my suggestion of the Right to Privacy, the Right to Social Security, and
most importantly the Right to Democracy will be adequate.
Bibliography
Case
Laws
·
Nadarajah v Obesekara (1971), 25 NLR 76
·
Chinnappa et al V Knakar et al 13 NLR 157
·
Abraham v
Hume 52 NLR 449
·
Ceylon tobacco v Minister of health (2012)
CA336
·
State
Distilleries corporation v Rupasinghe (1994) 2 SlR 395
·
Visal Bhashitha
Kavirathne V Commissioner general of examination- SCFR-29-2012
·
Karunathilaka
V. Commissioner of Elections (1999) 1SLR157
·
Kodeswaran v AG (1970) AC 1111
Legislations
·
Universal Declaration of Huma Rights, UDHR
1948
·
The Sri Lankan constitution 1972
·
The constitution of the democratic
socialist Republic of Sri Lanka 1978
·
International covenant on civil and
political rights, ICCPR 1966
·
Child
Rights Convention, CRC 1989
·
International
government on the protection of all migrant workers and members of their
families, 1990
Other Sources
·
Frye R.N, “Cyrus The Grate”( Britannica,10 april 2020) Frederick
II | Biography, Accomplishments, Wars, Enlightenment, & Facts | Britannica
accessed 04 Aug 2022 – curus the grate is an emperor who born in 590-580 and conqueror who founded the Achaemenian
empire.
·
Islam M.T, “A Brief introduction to the
Right to Privecy” (Hauser Global Law School Program, 2022) A
Brief Introduction to the Right to Privacy – An International Legal Perspective
- GlobaLex (nyulawglobal.org) accessed 04 Aug 2022
·
Right to social Security (ESCR-NET,
September 2021)
[1] Universal Declaration of Huma
Rights, UDHR 1948
[2] Richard N. Frye, “Cyrus The Grate”( Britannica,10 april
2020) Frederick II | Biography,
Accomplishments, Wars, Enlightenment, & Facts | Britannica accessed 04 Aug 2022 – curus the
grate is an emperor who born in 590-580 and conqueror who founded the Achaemenian empire.
[3] The Sri Lankan constitution 1972 –
the Sri Lankan Constitution of 1972 was a constitution of Sri Lanka was the
first republic constitution of Sri Lanka since independence.
[4] The constitution of the democratic
socialist Republic of Sri Lanka 1978
[5] International covenant on civil
and political rights, ICCPR 1966
[6] Child Rights Convention, CRC 1989
[7] International government on the protection of all migrant
workers and members of their families, 1990
[8] M.T Islam, “A Brief introduction
to the Right to Privecy” (Hauser Global Law School Program, 2022) A Brief Introduction to the Right
to Privacy – An International Legal Perspective - GlobaLex (nyulawglobal.org) accessed 04 Aug 2022
[9] Nadarajah v Obesekara (1971), 25
NLR 76
[10]UDHR 1949, Article 12 - No one shall be subjected to arbitrary interference with his privacy,
family, home or correspondence, nor to attacks upon his honour and reputation.
Everyone has the right to the protection of the law against such interference
or attacks.
[11] ICCPR 1966, Article 17 (1)- No one shall be subjected to arbitrary or unlawful
interference with his privacy, family, home or correspondence, nor to unlawful
attacks on his honour and reputation.
[12] Chinnappa et al V Knakar et al 13
NLR 157
[13] Abraham v Hume 52 NLR 449
[14]
Right to social Security (ESCR-NET, September 2021)
[15] UDHR 1948, Article 22- Everyone, as a member of society, has the right to social security and
is entitled to realization, through national effort and international
co-operation and in accordance with the organization and resources of each
State, of the economic, social and cultural rights indispensable for his
dignity and the free development of his personality.
[16] International covenant on economic
social and cultural rights, ICESCR 1976. Article 09- The States Parties to the
present Covenant recognize the right of everyone to social security, including
social insurance.
[17] Right to social Security
(ESCR-NET, September 2021)
[18] “Social Security; a fundamental
Human Right”, (ISSA excellence in social security)
[19] Ceylon tobacco v Minister of
health (2012) CA336
[20] State Distilleries corporation v Rupasinghe (1994) 2 SlR 395
[21] Visal Bhashitha Kavirathne V Commissioner general of
examination- SCFR-29-2012
[22] Tanja Karakamisheva-Jovanovska, 'Is There a Human Right to Democracy:
The Ongoing
Issue' (2014) 5 Iustinianus Primus L Rev 1
[23] Upen, “What is the difference
between Human right Moral right and Legal Right” ( PEDIAA, 11 Feb 2019) What is the Difference Between
Human Rights Legal Rights and Moral Rights - Pediaa.Com accessed 08 Aug 2022
[24] Tanja Karakamisheva-Jovanovska, 'Is There a Human Right to Democracy:
The Ongoing
Issue' (2014) 5 Iustinianus Primus L Rev 1
[25] Karunathilaka V. Commissioner of Elections (1999) 1SLR157
[26] Kodeswaran v AG (1970) AC 1111