A long road for Human Rights

• Around 300- 400 FR cases are filed each year in the Supreme Court
• Our society must accept the LGBTIQ community and integrate with them

Human Rights in Sri Lanka has been something widely discussed about on various platforms domestically and internationally. In lieu of World Human Rights Day which fell on 10 December, Daily Mirror spoke to Attorney-at-Law Rajeev Amarasuriya, LGBTIQ activist Rosanna Flamer Caldera and Human Rights activist Shreen Abdul Saroor.

31 December 2019

“Human Rights are basic multifaceted rights a human has. In 1948, the Universal Declaration of Human Rights (UDHR) had articulated many of these rights. Fundamental Rights are rights which are picked by a country or state from these human rights and recognised through legislation, often in the form of the constitution,” described Mr. Amarasuriya, He went on to explain that the first time Sri Lanka had a Bill of Rights was in the 1972 Constitution. The Fundamental Rights that are currently being followed were enacted in the 1978 Constitution, with express enforcement provisions as well. With the 19th Amendment, the Right to Information was also added as a Fundamental Right.   

Talking about enforcement, Mr. Amarasuriya stated that the enforcement action is only in respect of executive and administrative action which essentially includes State action and action of those acting under the colour of the State. “If a fundamental right is violated either by executive or administrative action, one can go before the Supreme Court and complain that his/her fundamental rights have been violated. However, this should be done within one month of the alleged violation of fundamental rights. Even in the case of an imminent violation where the person knows with reasonable certainty that his/her FR is going to be violated, he/she can go before the Supreme Court to complain,”   

Mr. Amarasuriya stated that around 300- 400 FR cases are filed each year in the Supreme Court and most cases are filed on the basis of violation of Article 12(1) which states that “All persons are equal before the law and are entitled to the equal protection of law.” “This can be discrimination in any form, like promotions in public office or disparities in gaining school admissions,” he explained. Mr. Amarasuriya went on to state that the Supreme Court in respect of Fundamental Rights Cases exercises a Just and Equitable Jurisdiction, which is wider in ambit to other Jurisdictions and enables the Supreme Court to consider all relevant factors in making its determination, and is not therefore limited only to the Law. It is essentially an exercise in balancing of rights and interests of all and also the public interest he went on to State.   

When talking about drawbacks in the system, he stated that the enforcement mechanism before the Supreme Court is available in respect of violations by Executive and Administrative Action and that it would be progressive to have forums which could consider violations taking place outside Executive and Administrative Action.   

He also opined that institutions like the Human Rights Commission of Sri Lanka (HRCSL) and the Parliamentary Ombudsman which also have jurisdiction to consider fundamental rights violations should be given more enforcement powers beyond the present realm of being able to make only recommendations, which could thereby reduce the burden on the Supreme Court having to dedicate time towards so many fundamental rights cases filed every year. Many of the Fundamental Rights Cases filed are to do with violations of fundamental rights by administrative authorities, for example where public officials come to Court complaining of alleged wrongful transfers, non promotions etc, then even when there are issues for instance in school admissions, fundamental rights cases are filed. From a Rights Based point of view it is a good thing that citizens have an opportunity to take such grievances before the Apex Court of the Land, but however the Court thereby has to allocate a large portion of its time to look into all these matters. It would be better if there were other tribunals set up to look into some of these administrative matters, leaving the Supreme Court to look into the violations of these rights which have more impact on society and the country as a whole, he went on to State.   
On the discussions on foreign courts, he remarked that Sri Lanka has an effective and independent court structure. “If there are any alleged violations of fundamental or human rights, they should be dealt within the Sri Lankan legal system as it is able to deal with such violations.” 

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Our system is good, but there is opportunity to make it more effective

Rajeev Amarasuriya

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Stating that over the years, only the awareness of society’s poor treatment of the LGBTIQ community and the understanding of who the LGBTIQ community have increased among the general public, Flamer-Caldera said that the LGBTIQ community still continues to be mentally and physically abused by family, relatives, colleagues and teachers. “There is still a blanket of discrimination, homophobia and marginalization of the LGBTIQ community and a violation of their rights. They face abuse and sexual harassment from school and work. They are unable to truly fulfil their true potential due to their constant fear of safety,” Flamer-Caldera stated. She chalked down the discrimination to the law that criminalizes consensual same sex sexual relationships and pointed out that due to Article 16 in the Constitution, these laws cannot be challenged in court to be changed.   

“I believe there should be an overall overhaul of the judicial system in Sri Lanka. Instead of clinging to our 136 year old British laws, Sri Lanka must look into laws where everyone is protected,” she remarked. She went on to state that a united Sri Lanka was an illusion until Sri Lanka had a legal system and environment where every Sri Lankan is respected and accepted irrespective of his/her sexual identity.   

“20% of Sri Lankans are unable to contribute to the economy of the country because they are being marginalized and abused,” she informed, referring to a study conducted by Equal Ground. Whilst echoing the need for more awareness and acceptance in society for the LGBTIQ people, she revealed that Equal Ground had published a book ‘My Rights, My Responsibilities’ which informs the LGBTIQ community as to how to protect their rights and seek legal help when their rights are violated which even includes filing a FR case.   
Flamer-Caldera hopes that the mainstream Sri Lankan society will accept the LGBTIQ community and integrate with them whilst the laws will be amended in the near future.

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20% of Sri Lankans are unable to contribute to the economy of the country

Rosanna Flamer-Caldera

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Shreen Abdul Saroor praised the previous government in providing a small opening for women in politics and stated that increased quota for women in LG polls was a huge victory as women’s groups have struggled for 30 years to increase quota for women in politics. “There was a 23.8% female representation in the local government which included a Mayoress in Colombo, Deputy Mayoress in Nuwara Eliya and an increased number of women in the North and East doing local government administration. This caused women’s rights groups to lobby more closely with LG bodies,” Saroor stated.   

She also applauded the parliament in the former regime for creating the Sectoral Oversight Committee for Women and Gender where women’s rights groups were able to bring many issues to the forefront including child marriage, forced marriage, Female Genital Mutilation (FGM), disparities in personal laws. However, Saroor believes that the change in government could cause complications when discussing certain women’s or children’s rights.   

“When we try to talk about FGM or even the Muslim Personal Law and the minimum age for marriage, they would bring about one law, one country. Those of us who promote diversity, reconciliation and co-existence do not want this. I do not want to barter the religious rights of any community to gain something else. Rights are indispensable and you can’t barter rights,” she emphasized.   

She stated that rights based conversation could be complicated and difficult. “There are many issues facing the women in the North and East, including forced marriages, land ownership issues under the Thesavalamai, societal issues they face due to disappearance or deaths of their husbands but if we bring up these issues, communalization of these issues shouldn’t take place. Likewise, when issues of former LTTE women- cadres and child soldiers are brought out, the issue shouldn’t be ethnicized or used to vilify the community,” she expressed.   
She also pointed out that whilst having a Domestic Violence Act was commendable, it had a few loopholes that need to be amended and reformed. She also stated that when a victim of domestic abuse complains to the police, usually the police and the judges rehabilitate the victim and negotiate with the family (parents, partner) and send the victim back to the family. “Only some Magistrate Courts give Protection Order immediately and sometimes when we’ve victims of domestic abuse, we take them to the police near the Magistrate Courts which gives the Protection Order. She stated that when the victim is a child, he/ she is handed over to the Juvenile Probation officer and Child Protection Authority. “However the system has to be reformed because in the course of justice the victim is made to relieve the incident(s) repeatedly,” Saroor stated and added that mediating, rehabilitating and sending the victim back to the hands of the abuser(s) should not take place.   

• Many of the laws should be amended and reformed in a manner that strengthens its implementation and also protects the rights of every Sri Lankan irrespective of ethnicity, race, religion or sexual identity

Saroor indicated that the Penal Code and Vagrancy Ordinance Act too should be amended and reformed. “The Vagrancy Ordinance Act is used against women. When a woman wears make up and is on the streets at night, she is arrested under the accusation of being a prostitute,”   

She also revealed that rape in the Penal Code is recognized only when penetration has taken place. “There are other forms of rape and those are serious crimes, the psychological effect faced by rape of any kind is the same,” she said. In that backdrop, she stated that in the Bribery Act under sexual bribery, it only states about gratification and Sri Lanka doesn’t overtly recognize sexual bribery. “Often poor widows and divorcees are subjected to sexual bribery in various private and government institutions. Many of our laws aren’t gender sensitive,” 
she expressed.   

Saroor also stated that the government structure is very patriarchal and that there was no recognition for women as the primary caretaker of the family, as the primary income provider of the family. “This is a policy level discussion and women contribute to the economy in a large scale as migrant workers and as garment factory workers, therefore due recognition should be given to women. In war torn areas, women are heading families and that should be recognized as they are doing so under many challenges,”   

“For the overall development of human rights in Sri Lanka, many laws that infringe upon women’s and children’s rights or are in relation to that should be thoroughly studied and reformed. And none of these issues should be used for political purposes to vilify any community. Sri Lanka’s rich heritage and diversity as a multi- ethnic, multi-religious and multi-cultural nation should be embraced and celebrated,” she concluded.   

Whilst there are many laws in place to protect human rights in Sri Lanka, there is much to be desired in its implementation. Many of the laws should be amended and reformed in a manner that strengthens its implementation and also protects the rights of every Sri Lankan irrespective of ethnicity, race, religion or sexual identity.  

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Those of us who promote diversity, reconciliation and co existence do not want one law, one country

Shreen Abdul Saroor