Fundamental rights in sri lanka

Fundamental Rights in Sri Lanka

C. L. AkurugodaLecturer (Probationary)

Faculty of Law

“Generally means those rights without which there ”

UDHR Based on higher norms Natural Law School

What are Human Rights

“Rights become ‘fundamental’ when they are enshrined in a Constitution. When incorporated into a Constitution, they can be altered only in the special manner applicable to constitutional amendments ”

What are FR?

Chapter III Article 10-14 Article 15 (Restrictions on FR)

1978 Constitution

1972 Constitution of Sri Lanka There was no mechanism to enforce FR

enshrined in the 1972 Constitution 1978 Constitution

Article 17 & Article 126

Right to Constitutional remedies

Every person shall be entitled to apply to the Supreme Court, as provided by Article 126, in respect of the infringement or imminent infringement, by executive or administrative action, of a fundamental right to which such a person is entitled under the provisions of this chapter

Article 17

A mere declaration of fundamental rights is illusory unless there is machinery for their enforcement. Article 17 guarantees the right to apply to the supreme court against the infringement or imminent infringement by executive or administrative action of any fundamental right to which a person is entitled under the provisions of chapter III.

Palihawadana v. AG

Article 17 is of the utmost importance not only for securing the safety and welfare of the people of this country but stands as an impregnable redoubt protecting the operation of the democratic system of government in this country.

Jayanetti v. The Land Reform Commission

If a person is temporarily prevented from making, or pursuing, such an application, he will certainly be entitled to complain that his fundamental right under Article 17 has been infringed. If he is put to death in order to prevent him-totally and permanently- from complaining, the question arises whether no one else could complain.

Sriyani Silva v. Iddamalgoda

Article 126(2);‘…an application may be made by such person himself or by an Attorney-at-law on his behalf’

Locus Standi/Standing

“one cannot claim standing in court to vindicate the constitutional rights to some third party, however much one may be interested in that party”

Fernando v. Liyanage FRD (2) 409,418

Petitioner does not have locus standi to make an application on behalf of her husband

(Literal interpretation)

See: Kulathunga J (Dissenting judgment)---Purposive

interpretation

Somawathi v. Weerasinghe

Next of kin

Sriyani Silva v. Iddamalgoda

Exception to the locus standi Group/Class action A third party’s right to sue on behalf of a

litigant Waters’ Edge case Eppawala Case Kotte kids case

Public Interest Litigations

See: Article 80 (3)-Judicial Review

Executive or Administrative Action

Wrongful exercise of judicial discretion cannot be questioned in an application under Article 17

Kumarasinghe v. AGDayananda v. Weerasinghe

Article 126 –Executive + Article 4(b) Narrow interpretation was rejected Executive and Administrative action

Jayanetti v. Land Reform Commission

Liability of the State was not a primary liability but a liability as master for an act done by a servant.

‘In course of employment’

Saman v. Leeladasa

Parameswary Jayathevan v. AG In the classification of governmental powers there

are gray areas of uncertainty, as well as residual and ancillary powers which, analytically and historically, does not fit nearly into one of the traditional categories.

The test‘must always be whether the impugned act

was ‘executive and administrative’ and not whether the institution or person concerned can be characterized as ‘executive’ (or “governmental” which is often used as if it were equivalent).

‘Executive’?

It was contended that disciplinary proceedings taken (or omitted) by a co-operative society did not constitute “executive or administrative ” action.

Fernando J: In the circumstances, disciplinary action by a co-operative society-interdiction, framing of charges, holding inquiries and dismissal- is “administrative” action within the meaning of Article 126.

Jayasinghe v. AG

Article 35 It does not exclude judicial review of the

lawfulness or propriety of an impugned act or omission, in appropriate proceedings against some other person who does not enjoy immunity from suit.

Where a person relies on an act done by the President in order to justify his own conduct, Article 35 does not shield that conduct.

Karunathilaka v. Dayananda Dissanayake

Article 126(2); ….he must apply to the Supreme Court within one month thereof.

Please read :Article 126(3)

What is the difference?

One Month Rule

The time limit of one month does not apply to an application for a writ made to the Court of Appeal and subsequently referred to the Supreme Court under Article 126(3)

Kanapathipillai Machchavallan v Officer –in- charge, Army Camp, Plantain Point

In case of an imminent infringement of a FR, the one month period begins to run from the time the petitioner first had an apprehension that his FR is likely to be infringed.

Jayawardene v. AG

To make the remedy under Article 126 meaningful to the applicant, the one month period …should be calculated from the time that he is under no restraint. If this liberal construction is not adopted… the petitioner’s right to his constitutional remedy under Article 126 can turn out to be illusory. It could be rendered nugatory or frustrated by continued detention

Namasivayam v Gunawardena

Prisoner Hospitalized …until the Petitioner had knowledge, or

could with reasonable diligence have discovered, that an injury sufficient to bring him within Article 11 had resulted, time did not begin to run.

Saman v. Leeladasa

Article 126(4) “to grant such relief or make such directions as it may deem just and equitable in the circumstances” in FR matters.

Wide or Limited?

Relief

Not to grant extensions Decided to retire them Violation of Article 12(1) There were alternative remedies They should not be given relief in terms of Article

12(1)Held:Constitutional provisions being the higher norm, they would prevail over other statutory provisions and therefore, the petitioners were entitled to seek relief for the alleged infringement of their FR even in situations where there were other remedies to be pursued.

Sirimal v. Board of Directors of the Co-operative Wholesale Establishment

In my view this is a serious violation of the FR of a citizen of the country which calls for the award of substantial damages. A mere declaration without more in the form of some penalty…will not deter such future abuse of FR of citizens.

Rathnasara Thero v. Udugampola

Saman v. Leeladasa; only against State? Article 126(4) + 4(d) 126(4) empowers the Court to grant just and

equitable relief against the State and such officers

“Giving relief against individual officers in addition to the State in appropriate cases would also help curb any tendency on the part of the State officer to violate FR in the belief that the State alone is liable for such violation”

Sirisena v. Ernest Perera

Fernando J:

“in the circumstances which aggravated the infringement, it would not be right to assess compensation at a few thousand rupees, simply because the newspaper was sold for seven rupees a copy; that would only be the pecuniary loss caused by the violation of the petitioner’s rights of property under ordinary law ”

Deshapriya v. Municipal Council, Nuwara Eliya

“we are here concerned with a FR, which not only transcends property rights but which is guaranteed by the Constitution; and with an infringement which darkens the climate of freedom in which the peaceful clash of ideas and the exchange of information must take place in a democratic society. Compensation must therefore be measured by the yardstick of liberty, and not weighed in the scale of commerce”

2nd respondent was directed to pay the compensation

Wicramarathne, J. Fundamental Rights in Sri Lanka, 2nd edition, Stamford Lake Publication, 2006

References