States of Emergency - Centre for Policy Alternatives

6.2.1
Structure
and
Content
Viewed against international best practice in the design and
structure of constitutional bills of rights aimed at guaranteeing,
protecting and promoting human rights, the Sri Lankan bill of
rights is incomplete and structurally incoherent. The lack of a
coherently conceptualised theory underpinning the Constitution
that seeks to maximise the enjoyment of human rights by Sri
Lankans makes hermeneutical interpretation of the bill of rights
as a whole difLicult. This is reLlected in the fundamental rights
jurisprudence of the Supreme Court over the last three decades.
This lack of theoretical coherence in the Supreme Court’s
fundamental rights case law is also partly due to its role as a court
of Lirst instance in respect of fundamental rights, rather than as a
constitutional court that enunciates general principles in the
interpretation of the bill of rights. This aspect will be discussed
further below.
It is not clear from the text the basis on which the rights selected
for inclusion were chosen, the order in which they appear was
determined, or why certain textual formulations were adopted
when more liberal options were available. The three instruments
of the International Bill of Rights, viz., the Universal Declaration of
Human Rights (1948), the International Covenant on Civil and
Political Rights (1966) and the International Covenant on
Economic, Social and Cultural Rights (1966) had been wellestablished
in international law by the time the constitution was
drafted in 1977 – 78, as had other regional instruments such the
European Convention on the Protection of Human Rights and
Fundamental Freedoms (1950). These could have provided useful
guidance in designing the bill of rights, but apart from some
textual evidence that the drafters drew from the UDHR and ICCPR,
it seems as if the design and drafting was informed by political
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