SOAS Research Online

Abstract

This is an analysis of the attempts made in Sri Lanka to provide constitutional protection for certain civil and political rights. The 1972 and 1978 Republican Constitutions, each of which contained a chapter on Fundamental Rights and Freedoms, is examined against the background of the less idealistic Order in Council of 1946 which contained the first Constitution of Independent Ceylon. The latter, which served as the basis for government for nearly twenty-five years, was drafted in the mid 'Forties, at a time when Bills of Rights-consciousness was hardly evident in the British Empire and still less among the elitist leadership thrown up by colonial rule in Ceylon. The thesis is structured into eight chapters. After an introductory survey in Chapter I of the "foundations of freedom" which were evident at Independence, the attempts made thereafter at formulating a Bill of Rights and the measure of success that attended, or eluded, these attempts are examined in Chapter II. The actual content of the protected rights in the 1978 Constitution, having regard to the overriding effect of "existing law", is examined in Chapter III. Since the effective enforcement of fundamental rights is dependent upon the existence of an independent court, the practical effectiveness of the legal safeguards designed to secure judicial independence are assessed in Chapter IV. The Sri Lankan experience of ex post facto and pre-enactment review of legislation is the subject of Chapter V. In Chapter VI, the effectiveness of the traditional as well as of the special remedies available at different times for the review of executive action is examined. Chapter VII looks at the impact on human rights of states of emergency which have existed in Sri Lanka for nearly half its independent life. The final chapter applies the experience of Sri Lanka to the problems involved in drafting and enforcing a Bill of Rights.