Advancing Fundamental Rights in SL: the cherished role of the Supreme Court | Daily News


Advancing Fundamental Rights in SL: the cherished role of the Supreme Court

Part II :

After the insurgency of 1989-1990, there were a large number of suspected insurgents in custody, without access to lawyers and even sometimes to family. They were unable to file applications to have their cases reviewed, either by the courts or by executive authorities. Although the Supreme Court rules required that a fundamental rights application should be made within one month of alleged infringement by way of a formal petition supported by affidavit, the Court on receipt of a large number of informal applications - often a simple letter - made a series of orders designed to facilitate access to justice. The Supreme Court made the first order in this regard In re Perera. The Attorney General and two associations of lawyers agreed that the Registrar of the Supreme Court in receipt of any formal application would furnish copies to the Attorney General and to the two associations.

The Court directed the authority in charge of every place of detention to allow an Attorney-at-Law authorized by either association to have reasonable access to detenus in order to obtain instructions, to swear affidavits, and to prepare applications to the Supreme Court or representations to Advisory Committees. Thereafter, formal petitions and affidavits in conformity with the Rules were prepared and filed in Court. These procedural modifications enabled the Supreme Court to entertain about 5,000 applications during the period 1990-1993. A large number were released soon or after a short period of ‘rehabilitation’, while some were prosecuted in the High Court.

The Right to life

In Silva v Iddamalgoda, the question was whether there was a constitutional right to life, even though such a right was not among those expressly enumerated as fundamental rights. A suspect in police custody was so severely tortured that he died whilst yet in custody, before a fundamental rights application could be filed on his behalf. Article 126 of the Constitution provides that a fundamental rights application must be filed by an aggrieved person or an Attorney-at-Law on his behalf. An application was filed by his widow and child. They seemed to face two obstacles: that the petitioners had no locus standi, and that the right which they claimed was not recognized by law.

However, Article 13(4) provided that ‘no person shall be punished with death or imprisonment, except by order of a competent court….’ It was held by the Supreme Court that the necessary implication of that provision was that everyone had the right to life, unless taken away by order of a competent Court. Subject to that exception, Article 13(4) by necessary implication did recognize a right to life. Additionally, Article 11 guaranteed freedom from torture and cruel, inhuman and degrading treatment or punishment. Depriving a person of his life was clearly inhuman treatment at least. Hence the Supreme Court decided that the right to life was implicit in Article 11 as well.

As for locus standi, it was held that if ‘person’ in Article 126 was restricted to the victim, there could never be an action in respect of the actual infringement of the right to life (although there could be in respect of its threatened infringement); and that the words ‘punished with death’ in Article 13(4) would have no meaning where death was actually caused. Therefore, in cases where death was caused, either the Constitutional remedy (under Article 126) had to be interpreted expansively or the fundamental rights (under Articles 11 and 13(4) are to be interpreted restrictively, so as to apply torture short of death (under Article 11) and to punishment with imprisonment but not with death (under Article 13(4)). Having regard to Article 4(d)- which requires the Judiciary, too, to respect, secure and advance fundamental rights- ‘person’ was interpreted as permitting the heirs/ dependents of the deceased to institute proceedings. In coming to that conclusion, reference was also made to Article 14.1 of the Covenant against Torture and Other Forms of Cruel, Degrading and Inhuman Treatment or Punishment, which provides that in the event of death of the victim as a result of an act of torture his dependents shall be entitled to compensation. The expansive interpretation of Article 126 was thus fully in conformity with Sri Lanka's international obligations.

The Public Trust Doctrine

This doctrine is the bedrock of the Constitution and elected officials and the arms of the State are mere enforcing agents of the power that is truly vested in the people. In this regard Articles 3 and 4, Article 12(1) and Chapter VI of the 1978 Constitution are of immense importance and have been cited in many FR cases requiring the doctrine such as Waters’ Edge Case, LMSL Case and SLIC Case.

As at present, that doctrine can be summarized as follows:

There are no absolute or unfettered powers or discretions in public law. Whenever the law confers powers to discretions on public bodies and officials (however high), such powers or discretions are held in trust for the benefit of the people. Such powers or discretions must always be exercised lawfully and fairly, and not perversely, arbitrarily or unreasonably; and the exercise of such powers or discretions is subject to judicial review.

Even the acts of the President are liable to such review, despite the personal immunity from legal proceedings conferred by Article 35, because such ‘immunity is a shield for the doer, not for the act'. Although legal proceedings cannot be instituted in any court or tribunal against the President, nevertheless such acts are liable to review in proceedings against other persons who rely on such acts in order to justify their own conduct - Karunatilleke v Dissanayake, Senasinghe v Karunatillake, Silva v Bandaranayake. In any event, Article 35 does not confer immunity from parliamentary review under Articles 42 and 43(1), for such review does not amount to proceedings in court or tribunal within the meaning of Article 35. Under the 19th Amendment to the Constitution effected recently, FR application can be filed against the President.

Natural Justice as One of the Protections of the Law

The Scope of natural justice has been developed by re-examining common law and administrative law concepts in the context of the equal protection of the law guaranteed by Article 12(1), which itself is founded on the Rule of Law. Jaywardene v Wijethilake involved the cancellation of an appointment of an Inquirer into Sudden Death without cause or inquiry. The Supreme Court held that the Supreme Court can and indeed must take judicial notice of the fact that the a person holding an office which is public in character is not removed without legal authority, without cause and without complying with the rules of natural justice.

In Nethasinghe v Wickramanayake, the Supreme Court stated that “one of the protections which the law provides and which is implicit in Article 12(1) is the right to a hearing”. The Court held that a person having legal authority to determine a question affecting the rights of individuals is, by necessary implication required to observe the principles of natural justice when exercising that authority and if he fails to do so, his purported decision is a nullity.

In Dissanayake v Kaleel the Supreme Court stated that natural justice is a living, growing and flexible concept not to be confined within the stifling and static technicalities of form and procedure.

As decided in Mendis v Perera natural justice requires that evidence produced and submissions made must be duly considered and properly evaluated without haste.


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