Dr. Shirani A. Bandaranayake
Former Chief Justice of Sri Lanka.
Fundamental principle of the Constitution, formed by The Rule of Law, a necessity for equality before the law, is the constitutional guarantee of human rights known as fundamental rights for civilized existence of a State.
Human Rights hold the concept of inborn rights of an individual, which cannot be denied by the State or other party.
The doctrine of Human Rights has been treated in many religions as welfare of all human beings as a state duty, emphasizing the infinite value of the human life.
The Universal Declaration of Human Rights (UDHR), 1948, stemed from UN Charter 1045, contains 30 basic laws on Human Rights, giving high priority for right to life, liberty and equal protection are given .
Human Rights Protection in Sri Lanka
The 1947 Constitution did not include s Bill of Rights, however the Rule of Law prevailed evident from Bracegirdle case in 1937 of colonial era.
Bracegirdle, an Anglo-Australian Marxist revolutionary, who played a key role in Sri Lanka's independence struggle, was one of the handful of European Radicals in Sri Lanka, critisized planters breaking the labour laws and urged plantation workers not to allow it. The angry planters requested the British Colonial Governor Sir Reginald Stubbs to deport him. He was arrested and detained on the orders of the Governor for deportation.
The Courts ordered the release of Bracegirdle, when an application was made for a writ of habeas corpus for his release.
The Supreme Court held that Governors power vested under the provisions of the Order in Council of 1896, could only be exercised in a state of emergency, and Courts inquiry did not find a state of war or grave civil disturbance caused by
Bracegirdle speech.
Although the 1972 Constitution comprised a chapter on Fundamental Rights and Freedoms, there was no provision for special procedure for their enforcement against the State. However a case filed in 1973, the court held in 1983 that infringement of human rights has occured.
The 1978 Constitution vested the Supreme Court with exclusive jurisdiction in respect of the infringement of a person’s fundamental right.
Article 17 of the 1978 Constitution read with Article 126 provides a person direct access to the Supreme Court to move the Court in respect of any infringement of a fundamental right.
The rights guaranteed by Articles 10, 11, 12(1), 12(3) and 13 of the 1978 Constitution are available to all natural and juristic persons, whereas the rights guaranteed in Articles 12(2) and 14 are available only to citizens.
The fundamental rights recognized by the Constitution of Sri Lanka, Article 4(d) states "shall be respected, secured and advanced by all the organs of government, and shall not be abridged, restricted or denied save in the manner and to the extent provided by the Constitution."
These fundamental rights are set out in Chapter III of the Constitution:
(A) Rights made available to every "person" :
Freedom of thought, conscience and religion
Freedom from torture or cruel, inhuman or degrading treatment
Right to equality before the law and the equal protection of the law
Right to non-discrimination on grounds of race, religion, language, caste, sex, political opinion or place of birth
Right not to be arrested excepted according to procedure established by law, and to be informed of the reason for the arrest
Right not to be kept in custody without a judicial order for longer than the period prescribed by law.
Right of a person charged with an offence to be heard in person or through an Attorney-at-Law at a fair trial by a competent court
Right not to be punished with death or imprisonment except by order of a competent court made in accordance with procedure established by law
Right to be presumed innocent until proved guilty
Right not to be punished retrospectively, i.e. for something that was not an offence at the time it was committed
(B) Rights to every "citizen":
Freedom of speech and expression including publication
Freedom of peaceful assembly.
Freedom of association.
Freedom to form and join a trade union
Freedom to manifest one's religion by observance, practice and teaching.
Freedom, by oneself or in association with others, to promote one's own culture and use one's own language
Freedom to engage in any lawful occupation, profession, trade, business or enterprise.
Freedom of movement and of choosing one's residence within Sri Lanka.
Freedom to return to Sri Lanka
If the Court finds that there is an infringement or imminent infringement of any of the petitioner's fundamental rights set out in the Constitution, it is empowered to "grant such relief or make such directions as it may deem just and equitable in the circumstances".
In Perera v University Grants Commission case, "Constitutional guarantee of fundamental rights is directed against the State" raised a situation with regard to the interpretation of an application on fundamental rights. The Court held that infringement of Fundamental right of equality of the complaint has occured in selection to university and relief was granted.
The Human Rights Treaties
Human Rights Law is a branch of International Law, refers to different types of agreements or treaties.
A treaty is defined as: "Any international agreement in written form, whether embodied in a single instrument or in two or more related instruments[ ...] concluded between two or more states or other subjects of international law and governed by international law."
The most important universal treaties are:
The International Covenant on Civil and Political Rights (ICCPR)
and
The International Covenant on Economic, Social and Cultural Rights (ICESCR).
Regional Human Rights treaties have been adopted by the Council of Europe, the Organisation of the American States and the Organisation of African Unity.
A State cannot enforce any law other than what is stated in its Constitution, hence It is necessary for a State to ratify an international covenant for it to become part of the State law.
Sri Lanka Constitution sovereignty is in the people and is inalienable. Article 4(a) states that the legislative power of the people shall be exercised by Parliament.
The.Article 2(2) of the ICCPR states that, "When not already provided for by existing legislative or other measures, each State Party to the present covenant undertakes ... to adopt such legislation or other measures as may be necessary to give effect to the rights recognized in the present covenant."
The UN Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, 1984 was enacted by parliament Act, No. 22 of 1994, giving effect to that Convention.
In the Danzig Railway Officials case, The Free City of Danzig’s railway employees sued their Polish employers over pay and pensions.
the Permanent Court of International Justice ,(PCIJ) stated that "It cannot be disputed that the very object of an international agreement ... may be the adopting by the parties of some definite rules creating individuals rights and obligations enforceable by the national courts." , shows that In general, treaties do not create direct rights and obligations for private individuals in a State party.
Right to Education
It has been stated that "Education is both a human right in itself and an indispensable means of realizing other human rights: civil, cultural, economic, political and social. It is the primary vehicle by which economically and socially marginalized people can lift themselves out of poverty and obtain the means to participate fully in national life. Its impact is thus felt in the future, as much if not more than in the present. Education benefits societies as well as individuals."
The UDHR declares that, "Everyone has the right to education. Education shall be free, at least in the elementary and fundamental stages. Elementary education shall be compulsory. Technical and professional education shall be made generally available and higher education shall be equally accessible to all on the basis of merit."
It further went on to declare: "Education shall be directed to the full development of the human personality and to the strengthening of respect for human rights and fundamental freedoms. It shall promote understanding, tolerance and friendship among all nations, racial or religions groups and shall further the activities of the UN for the maintenance of peace."
The ICESCR has recognized this right and has stated that "The States parties to the present covenant recognize the right of everyone to education." There are several other international instruments which have declared not only the right to education, but also the prime objective of such a right.
Allthough in Sri Lanka, education is not treated as a separate fundamental right. However, the Constitution provides for the right to equality. This provision is one of the most important principles in any Constitution.
Several cases have come before the Supreme Court of Sri Lanka on the basis of Article on equality and equal protection in the Constitution.
Equality and Equal Protection
Article 7 of the UDHR reads: "All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination"
Article 12 of Sri Lanka Constitution provides the right to equality and Article 12(1) states: "All persons are equal before the law and are entitled to the equal protection of the law".
Equal protection generally means the right to equal treatment, treated alike and administered equally on similar circumstances.
The concrpt, "equality before the law" implies the absence of any special privilege in anyone’s favour before the law.
The concept ‘equal protection of the law’ means the application of the same law without any kind of discrimination to all alike.
Article 126 of the Constitution refers to need for "executive" or "administrative" action, but no clear definition has been given on what would involve "executive" or "administrative" action.
In Thadchanamurthi v Attorney General case , it was held that the State will be liable for the wrongs of its subordinate officials only where there is a violation of ‘administrative practice’ within the scope of their authority viewed as "official action of all State Officers."
Accordingly if there is no proof of administrative practice, the State will not be liable for any alleged ill treatment as the acts are not authorized, encouraged or performed for the benefit of the State, then the State cannot be held responsible for such acts.
Study cases of
Mohamed Faiz v Attorney General
Jayakody v Sri Lanka Insurance and Robinson Hotel Company Ltd.
Elmore Perera v Montagu Jayawickrama , the Supreme Court held that to prove contravention of Article 12(1), unjust or wrongful treatment alone would not be sufficient.
in Jayasinghe v Attorney General case, the court stated that Article 12 of the Constitution ensures equality and equal treatment even when a right is not granted by common law, statute or regulation.
International Covenants and Sri Lankan Courts
Sri Lanka has a duty to respect for treaty obligations based on Article 27(15) of the Constitution:
"The State shall promote international peace, security and co-operation, and the establishment of a just and equitable international economic and social order and shall endeavour to foster respect for international law and treaty obligations in dealing among nations."
in Weerawansa v Attorney General case, The Court held that "Article 27(15) requires the State to endeavour to foster respect for international law and treaty obligations in dealings among nations.
That implies that the State must likewise respect [such] obligations in its dealings with its own citizens, particularly when their liberty is involved. The State must afford to them the benefit of the safeguards which international law recognises."
Leela Violet vs Vidanapathirana , Court of Appeal.relied upon a leading decision of the Inter-American Court of Human Rights and Resolutions of UN Commission on Human Rights.
In Weerawansa v Attorney General Fernando, J. was of the view that our Courts should have regard to the provisions of International Covenants.
In Manawadu v Attorney General, the Court referred to applicability of UDHR in enacting statutes.
Indian Supreme Court stated that, in the absence of suitable legislation in a certain sphere, international conventions and norms so far as they are consistent with the constitutional sprit, could be relied on by the Courts.
The Bangalore Principles states
that the conclusions were “expressed in recognition of the fact that judgesa and lawyers have a special contribution to make in administration of justice in fostering universal respect for fundamental human rights and freedoms”.
http://www.island.lk/2003/08/22/featur02.html
Discussion :
Discuss evolution of human rights law in Sri Lanka, enabling environment and norms with reference to international treaties
Niranjan Meegammana
HR Researcher and Technologist
Digital Human Rights Institute
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