යෝජිත නව ආණ්ඩුක්‍රම ව්‍යවස්ථාව (Third Republic Constitution) Chapter XXXIII

 CHAPTER XXXIII

 

THE HUMAN RIGHTS COMMISSION OF SRI LANKA (HRCSL)

 

276.       There shall be a Human Rights Commission (in this Chapter referred to as the “Commission”) consisting of five members chosen from among persons having knowledge of or practical experience in matters relating to human rights, appointed by President subject to the provisions of Article 185. President shall appoint one member as the Chairman of the Commission.

277.       Provisions of Articles 186, 187, 188, 190, 193, 194, 202, 203, 223, and paragraph (2) and (6) of Article 184, paragraph (5) of Article 195 shall apply, mutatis mutandis, to this Commission.

278.       The functions, powers, duties, and responsibilities of the Commission shall be as follows.

 

(1)    to inquire into and investigate complaints regarding  procedures, with a view to ensuring compliance with the provisions of the Constitution relating to Fundamental Rights and to promoting respect for, and observance of, human rights;

(2)    on its own motion or on a complaint made to it by an aggrieved person or group of persons or a person acting on behalf of an aggrieved person or a group of persons, to inquire into and investigate complaints regarding infringements or imminent infringements of Fundamental Rights, and to provide for resolution thereof by conciliation and mediation in accordance with the provisions hereinafter provided:

Provided that the Commission shall promulgate rules and guidelines in relation to reconciliation and mediation, publish in the Gazette, and submit to Parliament for its approval;
 
Further provided that where a complaint is made by an aggrieved party to the Commission, within two months of the alleged infringement or imminent infringement of a Fundamental Right by executive or administrative action, the period within which the inquiry into such complaint is pending before the Commission, shall not be taken into account in computing the period of three months within which an application may be made to the Court of Appeal by such person in terms of Article 164 of the Constitution:

Further provided that where in the course of an inquiry or investigation conducted by the Commission a question arises as to the scope or ambit of a Fundamental Right, the Commission may refer such question to Supreme Court under Article 153 of the Constitution, for the determination of Supreme Court;

Further provided that where an investigation conducted by the Commission does not disclose the infringement or imminent infringement of a Fundamental Right by executive or administrative action, the Commission shall, record that fact, and shall accordingly inform the person making the complaint within thirty days;

(3)    to advise and assists the government in formulating legislation and administrative directives and procedures, in furtherance of, the promotion and protection of human rights;

(4)    to undertake research into, promote awareness of, and provide education in relation to, human rights;

(5)    intervene in any proceedings relating to the infringement or imminent infringement of Fundamental Rights, pending before any court, with the permission of such court;

(6)    monitor the welfare of persons detained either by a judicial order or otherwise, by regular inspection of their places of detention, and to make such recommendations as may be necessary for improving their conditions of detention;

(7)    take such steps as it may be directed to take by Supreme Court or Court of Appeal, in respect of any matter referred to it by Supreme Court or Court of Appeal:

Provided that the Commission shall inquire and report to Supreme Court or Court of Appeal on the matters referred to it, within the period, if any, specified in such reference;

(8)    award in its absolute discretion to an aggrieved person or a person acting on behalf of an aggrieved person, such sum of money as is sufficient to meet the expenses that may have been reasonably incurred by him in making a complaint to the Commission;

 

279.       Where an investigation conducted by the Commission under paragraph (2) of Article 278 discloses the infringement or imminent infringement of a Fundamental Right by executive or administrative action, the Commission may where it appears to the Commission that it is not appropriate to refer such matter for conciliation or mediation; or where it appears to the Commission that it is appropriate to refer the matter for conciliation or mediation, but all or any of the parties object or objects to conciliation or mediation, or where the attempt at conciliation or mediation is not successful:

 

(1) recommend to the appropriate authorities including the Police, that prosecution or other proceedings be instituted against the person or persons infringing such Fundamental Right;

(2) refer the matter to any court having jurisdiction to hear and determine such matter in accordance with such rules of court as may be prescribed therefore, and within such time as is provided for invoking the jurisdiction of such court, by any person;

(3) make such recommendations as it may think fit to the appropriate authority or person or persons concerned, with a view to preventing or remedying such infringement or the continuation of such infringement;

(4) restrain the act or decision or practice giving rise to the infringement or imminent infringement of a Fundamental Right.

280.       (1) No recommendation shall be made by the Commission under the provisions of this Chapter in respect of the infringement or imminent infringement of a Fundamental Right except after affording an opportunity of being heard to the person alleged to be about to infringe or to have infringed such Fundamental Right.

(2) A copy of a recommendation or decision made by the Commission under the provisions of this Article in respect of the infringement or imminent infringement of a Fundamental Right shall be sent by the Commission to the person aggrieved, the head of the institution concerned, and the Minister to whom the institution concerned has been assigned.

(3) The Commission shall require any authority or person or persons to whom a recommendation or decision under the preceding provisions of this Article is addressed to report to the Commission, within such period as may be specified in such recommendation or decision, the action which such authority or person has taken, or proposes to take, to give effect to such recommendation or decision, and it shall be the duty of every such person to report to the Commission accordingly.

(4) Where any authority or person or persons to whom a recommendation or decision under the provisions of this Article is addressed, fails to report to the Commission within the period specified in such recommendation or decision, or where such person reports to the commission and the action taken, or proposed to be taken by him to give effect to the recommendations of the Commission, is in the view of the Commission, inadequate, the Commission shall take one or several of the following actions in proportion to the gravity of such case, on such person:

(a) to give severe warning in public;

(b) to demote the position of such person in State service;

(c) to instigate legal action against him on behalf of the aggrieved party in the Court of Appeal;

(d) to impose a fine not more than five hundred thousand LKRS;

(e) to interdict such person from State service.

 

281.                   The Commission shall, for the purposes of an inquiry or  investigations under this Chapter, have the power:

(1) to procure and receive all such evidence, written or oral, and to examine all such persons as witnesses, as the Commission may think it necessary or desirable to procure or examine;

(2) to require the evidence (whether written or oral) of any witness, to be given on oath or affirmation, such oath or affirmation to be that which could be required of the witness if he were giving evidence in a court of law, and to administer and cause to be administered by an officer authorized in that behalf by the Commission an oath or affirmation to every such witness;

(3) to summon any person residing in Sri Lanka, to attend any meeting of the Commission to give evidence or produce any document or other thing in his possession, and to examine him as a witness or require him to produce any document or other thing in his possession;

(4) to admit notwithstanding any of the provisions of the Evidence Ordinance or other such law as may be enacted in substitution therefor, any evidence, whether written or oral, which might be inadmissible to civil or criminal proceedings;

(5) to admit or exclude the public from such inquiry or investigation or any part thereof.

 

282.       (1) A person who gives evidence before the Commission shall in respect of such evidence be entitled to all the privileges and responsibilities to which a witness giving evidence before a court of law is entitled in respect of evidence given by him before such court.

(2) No person shall in respect of any evidence written or oral, given by that person to, or before the Commission be liable to any action, prosecution or other proceeding, civil or criminal in any court.

(3) No evidence of any statement made or given by any person to, or before, the Commission shall be admissible against that person in any action, prosecution or other proceeding, civil or criminal in any court.

283.        (1) Every summons shall be under the hand of the Chairman of the Commission.

(2) Any summons may be served by delivering it to the person named therein, or where that is not practicable, by leaving it at the last known place of abode of that person, or by registered post.

(3) Every person to whom a summons is served shall attend before the Commission at the time and place mentioned therein, and shall answer the questions put to him by the Commission or produce such documents or other things as are required of him and are in his possession or power, according to the tenor of the summons.
 

284.       (1) Every offence of contempt committed against, or in disrespect of, the authority of the Commission shall be punishable by Court of Appeal as though it were an offence of concept committed against, or in disrespect of, the authority of that Court, and Court of Appeal is hereby vested with jurisdiction to try every such offence.

(2) An act done or omitted to be done in relation to the Commission, whether in the presence of the Commission or otherwise, shall constitute an offence of contempt against, or in disrespect of, the authority an of the Commission, if such act would, if done or omitted to be done in relation to Court of Appeal, have constituted an offence of contempt against, or in disrespect of, the authority of such Court.

(3) If any person:

(a) fails without cause, which in the opinion of the Commission is reasonable, to appear before the Commission at the time and place mentioned in the summons served under this Chapter; or

(b) refuses to be sworn or affirmed, or having being duly sworn or affirmed refuses or fails without cause, which in the opinion of the Commission is reasonable, to answer any question put to him touching the matters being inquired into, or investigated by, the Commission; or

(c) refuses or fails without cause which in the opinion of the Commission is reasonable, to comply with the requirements of a notice or written order or direction issued or made to him, by the Commission; or

(d) upon whom a summons is served under this Chapter, refuses or fails without cause, which in the opinion of the Commission is reasonable, to produce and show to the Commission any document or other thing, which is in his possession or control and which is in the opinion of the Commission necessary for arriving at the truth of the matters being inquired into, or investigated,

Such person shall be guilty of the offence of contempt against, or in disrespect of, the authority of the Commission.

       (4) Where the Commission determines that a person is guilty of an offence of contempt under paragraphs (2) or (3) of this Article, against, or in disrespect of, its authority the Commission may transmit to Court of Appeal, a Certificate setting out such determination; every such Certificate shall be signed by the Chairman of the Commission.

(5) In any proceeding for the punishment of an offence of contempt which Court of Appeal may think fit to take cognizance of, as provided in this Article, any document purporting to be a Certificate signed and transmitted to the Court under paragraph (4) of this Article shall:

 

(a) be received in evidence and be deemed to be such a certificate without further proof, unless the contrary is proved, and

(b) be evidence that the determination set out in the certificate was made by the Commission and of the facts stated in the determination.

 

(6) In any proceeding taken as provided in this Article for the punishment of any alleged offence of contempt against, or in disrespect of, the authority of the Commission, no member of the Commission shall, except with his own consent, and notwithstanding anything to the contrary in this section, be summoned or examined as a witness.

285.   (1) The provisions of paragraphs (1), (2), (3), and (5) of Article 272 shall apply, mutatis mutandis, in this Chapter.

(2) No proceedings civil or criminal, shall be instituted against any member of the Commission or any officer or servant appointed to assist the Commission, other than for contempt, or against any other person assisting the Commission in any other way, for any act which to good faith is done or omitted to be done, by him, as such member or officer or servant or other person.

(3) A member of the Commission or an officer or servant appointed to assist the Commission shall not be required to produce in any court, any document received by, or to disclose to any court, any matter or thing coming to the notice of, the Commission in the course of any inquiry or investigation conducted by the Commission under this Chapter, except as may be necessary for the purpose of proceedings for contempt or for and offence under this Chapter.

(4) No proceedings civil or criminal shall be instituted in any court against any member of the Commission in respect of any report made by the Commission under this Chapter or against any other person in respect of the publication by such person of substantially true accounts of such report.

286.   (1) Where a person is arrested or detained under the provisions of law relating to prevention of terrorism or a regulation made under the Public Security, it shall be the duty of the person making such arrest or order of detention, as the case may be, to forthwith and in any case, not later than forty eight hours from the time of such arrest or detention, inform the Commission of such arrest or detention as the case may be and the place at which the person so arrested or detained is being held in custody or detention. Where a person so held in custody or detention is released or transferred to another place of detention, it shall be the duty of the person making the order for such release or transfer, as the case may be, to inform the Commission of such release or transfer, as the case may be, and in the case of a transfer, to inform the Commission of the location of the new place of detention.

(2) Any person on whom a duty is imposed by paragraph (1) of this Article, and who willfully omits to inform the Commission as required by paragraph (1), or who resists or obstructs an officer authorized by the Commission in the exercise by that officer of the powers conferred on him, shall be guilty of an offence and shall on conviction after summary trial by a Magistrate, be liable to imprisonment for a period not exceeding one year or to a fine not exceeding two hundred fifty thousand LKRS, or to both such fine and imprisonment.

287.   Any person authorized by the Commission in writing may enter at any time, any place of detention, police station, prison or any other place in which any person is detained by a judicial order or otherwise, and make such examinations therein or make such inquiries from any person found therein, as may be necessary to ascertain the condition of detention of the persons detained therein.

288.   The Commission shall submit an annual report to Parliament of all its activities during the year to which the report relates. Such report shall contain a list of all matters referred to it, and the actions taken in respect of them along with the recommendations of the Commission in respect of each matter. The Commission may, whenever it considers it necessary to do so, submit periodic or special reports to Parliament in respect of any particular matter or matters referred to it, and the action taken in respect thereof.

289.   (1) The State shall provide the Commission with adequate funds to enable the Commission to discharge the functions assigned to it by this Chapter.

(2) The Commission shall cause proper accounts to be kept of its income and expenditure, and assets and liabilities.

(3) Any expenses incurred by the Commission in any suit or prosecution brought by, or against, the Commission before any court, shall be paid out of the funds of the Commission and any costs paid to, or recovered by, the Commission in any such suit or prosecution, shall be credited to the fund of the Commission.

(5) Any expense incurred by any member of the Commission or any officer or servant thereof or any person appointed to assist the Commission, in any suit or prosecution brought against him in any court in respect of any act which is done, or purported to be done, by him under this Chapter or on the direction of the Commission shall, if the court holds that the act was done in good faith, be paid out of the founds of the Commission, unless such expense is recovered by him in such suit or prosecution.

290.   In this Chapter:

(1) Fundamental Right means a Fundamental Right declared and recognized by the Chapter IV of this Constitution.

(2) Human Right means a right declared and recognized by the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights.