FUNDAMENTAL RIGHTS

JURISPRUDENCE OF SRI LANKA

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1

D.S. Medawatte
ARTICLE 17
 Every person shall be entitled to apply
to the Supreme Court, as provided by

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Article 126, in respect of the
infringement or the imminent
infringement, by executive or
administrative action, of a fundamental
right to which such person is entitled
under the provisions of this Chapter.
2
ARTICLE 126
 Supreme Court has the SOLE jurisdiction for the
exercise of fundamental rights OR language
rights. (Chapter III or IV)
 Applicable criteria as per 126 (2)

1. Fundamental right should be infringed or about

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to be infringed
2. The right should be violated by executive or
administrative action
3. Should be applied for by the victim or his AAL

4. Rules of the Court

5. Within one month of the violation

6. Petition addressed to the Court

7. Leave to proceed (to be decided by not less than

3
two judges)
PETER LEO FERNANDO V. THE AG AND
TWO OTHERS [1985] 2 SLR 341
 The petitioner had been sitting in the court
premises when another case was being heard. An
allegation had been made that the petitioner

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intimidated the wife of a client. Consequently the
petitioner was taken into custody. He was
released after 4 hours.
 An argument was made that a wrongful judicial
order becomes executive or administrative in
nature.

4
PETER LEO CONTD...
 Wade on ‘judges’
 "Judges may be regarded as servants of the

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Crown in the sense they are. 'Her Majesty's
Judges' holding offices granted by the Crown and
bound by oath well and truly to serve the
sovereign in those offices. On the other hand it is
axiomatic that judges are independent : the
Crown has no legal right to give them
instructions, and one of the strongest
constitutional conventions makes it improper for
any sort of influence to be brought to bear upon
them by the executive." 5
PETER LEO CONTD...
 (1) The Magistrate's order of detention was wrong for
non-compliance with the provisions of the Code of
Criminal Procedure Code Act, s. 136, 139 and 142 (2)
but there was no evidence of lack of good faith on the

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part of the Magistrate.
 (2) Every judge, whether of superior or inferior courts,
enjoys immunity from liability whether in delict or
criminal law for acts done in the exercise of his
judicial functions.
 (3) The 2nd respondent had improperly and
unlawfully detained the petitioner. A judicial order
does not become converted into an administrative or
executive act merely because it is unlawful. The
detention of the petitioner does not constitute
executive or administrative action within the
meaning of Articles 17 and 126 of the Constitution. 6
PETER LEO CONTD...
 (4) The State is not liable for anything done by a
judge in the discharge or purported discharge of
his functions as a Judge or for anything done by

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any person in connection with the execution of
judicial process.
 (5) An officer of the State who in the course of
carrying out an order made by a judge in the
exercise of his judicial functions violates the
fundamental right of a person is free from
liability if in doing so he acted in good faith not
knowing that the order is invalid.
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CANNOSA INVESTMENT LTD V. EARNEST
PERERA AND OTHERS [1991] 2 SLR 214
 An allegation that a warrant has been
improperly obtained.

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 The nature of administrative and executive
action.
 It was claimed that the police officers had
supplied wrong information to the Magistrate to
obtain the warrant in order to help a rival
business.
 When a judge has acted using his discretion, can
that discretion be regarded as leading to a
violation of right under Articles 17 and 126?
8
 “it would appear to be well established that
where an action complained of is in consequence
of the wrongful exercise of a judicial discretion

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even on false material furnished to a Judge
maliciously, such action will not attract the
provisions of Article 126 of the Constitution.” –at
p. 219

9
CANNOSA CONTD...
 Holding of the case:
 Even if a search warrant is improperly obtained

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from a magistrate for a collateral purpose and
mala fide there is no infringement of a
fundamental right. Where the action complained
of is in consequence of the wrongful exercise of a
judicial discretion even on false material
furnished to a judge maliciously, such action will
not attract the provisions of Article 126 of the
Constitution. The violation must be by
administrative or executive action.
10
BANDARA V. WICKRAMASINGHE [1995] 2
SLR 167
 The petitioner who was a minor alleged that he
was assaulted by the Principal, Vice Principal
and a teacher. The Respondent claimed that the

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petition was filed by the petitioner’s father’s
request out of malice which was created due to
him not being offered a job at the school.
 The respondent further claimed that the actions
were those done by private individuals and
cannot form executive or administrative actions.

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BANDARA CONTD...
 (i) The contention that the alleged assault was purely
individual private acts not involving the use of the coercive
power of the State and the impugned acts were in no way

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connected with the performance of official functions and
hence the impugned acts do not constitute Executive or
Administrative action cannot be accepted.
 (ii) Discipline of students is a matter within the purview of
school teachers. It would follow that whenever they purport
to maintain discipline, they act under the colour of office. If
in doing so they exceed their power they may become liable
for infringement of fundamental rights by Executive or
Administrative action.
 (iii) In view of the seriousness of the derelictions and the
issues involved, the claim of the Respondent that the
impugned acts involved disciplinary action not violative of
fundamental rights cannot be accepted. 12
NARENDRAKUMAR V ZIARD AND OTHERS
[2000] 1 SLR 251
 Although these rights and freedoms
are common to everybody or every

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citizen, as noted above, the right to
invoke the Constitutional remedy in
Article 126(1) upon an infringement
of such a right is individual to the
person who is aggrieved by such
infringement. This is the necessary
inference of the words as contained
in Article 17 and 126(2) of the
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Constitution.
 CONTD…
The manner of making such an application as
provided in Article 126(2) is restrictive and gives
that process a personal or individual character. The
words, "where any person alleges that any such
fundamental right or language right relating.
to such person has been infringed or about to be

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infringed by executive or administrative action, he
may himself or by an attorney-at-Law on his
behalf, within one month thereof........ apply to the
Supreme Court........ (emphasis by me) as appearing
in Article 126(2) amply demonstrate the personal or
individual character of the right to institute
proceedings in relation to the special jurisdiction
vested in this court for the enforcement of
fundamental and language rights as declared and
recognised by Chapters III and IV of the
Constitution (Sarath N. Silva CJ) 14
JAYAKODI V SRI LANKA INSURANCE AND
ROBINSON HOTEL CO LTD AND OTHERS
[2001] 1 SLR 365
 Fernando J referring to his own judgment in
Samson v. Sri Lanka Airlines Ltd "The State
may set up a Corporation which it (in substance)

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owns and controls; that Corporation may set up a
limited liability company which it (in substance)
owns and controls; the company in turn may set
up another company or other entity . . . and so
on. But however long the chain may be, if
ultimately it is the State which has effective
ownership and control, all those entities - every
link in that chain - are State agencies"
15
CONTD…

 ". . . if agencies and

instrumentalities of the State were

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not held to be "other authorities", it
would be the easiest thing for the
government to assign to a plurality
of corporations almost every State
business or economic activity and
thereby cheat the people of the
fundamental rights guaranteed 16

to them."
CONTD….
 In reference to Hewamallikage v. People's Bank,
(decided by Fernando J and Amarasinghe J) : “If
the State decides instead to carry on that same
function, business or activity indirectly, through

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a State corporation or agency, it could hardly be
said that the appointment (etc) of the employees
needed would not be "executive or administrative
action" that would be to cheat such employees of
their fundamental rights. I hold that the
appointment, transfer, dismissal, and disciplinary
control of employees of the State and State
agencies constitute "executive or administrative
action" within the meaning of Article 17126.
”
VICTOR IVON AND OTHERS V HON. SARATH N.
SILVA AND OTHERS [2001] 1 SLR 309

 None of the petitioners claimed that

the respondent himself was guilty of

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any executive or administrative
action that violated the FR of the
petitioners.

 Furthermore, the President, who

made the appointment was not
named as a Respondent of the case.
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CONTD…
 In the decision of the case, it was
stated, with reference to Article 107

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(2) and (3), that the only accepted
procedure of removing the 1st
respondent was by way of
impeachment.

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SRIYANI SILVA V IDDAMALGODA [2003] 1
SLR 14
The deceased detenue who was arrested, detained
and allegedly tortured and thereby died acquired
a right under the Constitution to seek redress

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from the Court for violation of his fundamental
rights. Hence when there is a causal link
between the death of a person and the process,
which constitutes the infringement of such
person's fundamental rights any one having a
legitimate interest could prosecute that right in
terms of Article 126(2) of the Constitution. There
would be no objection in limine to the wife of the
deceased instituting proceedings in the 20
circumstances of this case.
CONTD….
 The golden rule of plain, literal and grammatical
construction has to be read subject to the
qualification that the language of the statute is

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not always that which a grammarian would use.
 Quoted from Lyons v Tucker – Grove J.

 Edussuriya J dissented

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 Per Bandaranayake, J.
 "It could never be contended that the right ceased and
would be ineffective due to the intervention of the

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death of the person, especially in circumstances
where the death in itself is the consequence of
injuries that constitute the infringement. If such an
interpretation is not given it would result in a
preposterous situation in which a person who is
tortured and survives could vindicate his rights in
proceedings before the court, but if torture is so
intensive that it results in death, the right cannot be
vindicated in proceedings before this court. In my
view a strict literal construction should not be 22
resorted to where it produces such an absurd result."
STATUTORY INTERPRETATION OF BINDRA
 "If a statute which creates a right does not
prescribe a remedy for the party aggrieved

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by the violation of such a right, a remedy
will be implied and the party aggrieved
may have relief, in an appropriate action
founded upon the statute. The creation of a
new duty or obligation or the prohibition
of an act formerly lawful carries with it by
implication a corresponding remedy to
assure its observance."
23
 ubi jus ibi remedium - "there is no right
without a remedy".

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 Dissenting Judgment of Edussuirya J:
 At the date of filing the original application
under Article 126 of the Constitution,
namely, 18/07/2000, the person on behalf of
whom it was filed (by an attorney-at-law)
was already dead (died on 20/06/2000) and
as such there was no application which the
Court could have entertained, and
therefore it should necessarily have been
rejected. 24
 That application of 18/07/2000 should therefore
be rejected nunc pro tune. In any event, the
Petitioner to that application cannot proceed with

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it. In the circumstances, the so called amendment
dated 23/08/2000 in which an entirely different
person (the widow) is the Petitioner, becomes a
new application, which is time barred according
to the very Article (Article 126) under which the
new Petitioner seeks redress, since the new
Petitioner's husband had died on 20th June 2000.
Then again there cannot be an amendment to an
application which the Court cannot entertain. 25
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RIGHT TO EQUALITY
26
JURISPRUDENTIAL BASIS
 Rawlsian theory of the Veil of Ignorance

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 Robert Nozick however argues that this theory is
defective

27
 Horizontal
Equality

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Types
Vertical
Equality

28
Jain Kagzi - The Constitution of India,
5th edition, Pg. 238: “The equals should not
be placed unequally; and at the same time
unequals should not be treated as equals in
matters of promotion, retirement benefits
etc., The equal opportunity requires that

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men placed similarly should be treated
similarly. The subjection of unequals to the
same rules for appointment through
promotion and the payment of gratuity and
pension should not be `per se'
discriminative. Equal opportunity is for
equals, that is to say, those who are
similarly circumstanced in life.” 29
Article 12
(1) All persons are equal before the

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law and are entitled to the equal
protection of the law.
(2) No citizen shall be
discriminated against on the
grounds of race, religion,
language, caste, sex , political
opinion, place of birth or any
such grounds 30
AFFIRMATIVE ACTION
 Article 12 (4) Nothing in this article shall
prevent, special provision being made by law,
subordinate legislation or executive action, for

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the advancement of women, children or disabled
persons.

31
DR. MARIO GOMEZ V THE UNIVERSITY
OF COLOMBO [2001] 1 SLR 273

 Judgment delivered by Edussuriya J

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 “it cannot be said that the termination of the
Petitioner's services by itself was an
infringement of the Petitioner's fundamental
rights. It is his terms of employment that were
violative of his fundamental rights, if at all.”

32
PROVISO TO ARTICLE 12 (2)
 …provided that it shall be lawful to require a
person to acquire within a reasonable time
sufficient knowledge of any language as a

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qualification for any employment or office in the
Public, Judicial or Local Government Service or
in the service of any public corporation, where
such knowledge is reasonably necessary for the
discharge of the duties of such employment or
office

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RIGHT TO BE FREE FROM
TORTURE
34
It’s a crime against humanity. It’s a jus cogens right

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(absolute and non-derogable) and it creates an erga
omnes obligation.

Even in the International context Article 7 of the ICCPR

is protected by virtue of Article 4(2) and is non-
derogable even in times of public emergency.

35
UN REPORT ON TORTURE

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Both the European Court of Human
Rights (ECHR) and the Inter-
American Court of Human Rights
have stated that the definition of
torture is subject to ongoing
reassessment in light of present-day
conditions and the changing values
of democratic societies 36
PRIYANTHA DIAS V WICKRMANAYAKE

Hon. Shirani Bandaranayake J. “If

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police officers who are guardians of
the law unleash their fury in this
manner on the very persons whom
they are duty bound to protect and
safeguard, a dismal picture would
emerge as to what passes off for law
and order”.
37
YOGALINGAM WIJITHA CASE
 Edussuriya J: “third degree methods
adopted by certain police officers can

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only be described as barbaric, savage
and inhuman. They are most
revolting and offend one’s sense of
human decency and dignity...”

38
Kishali Pinto states that “it is surprising that more
cases alleging torture emerged in the course of
normal police functions in the context of non-
emergency and non-conflict situations in Sri
Lanka than in the context of extraordinary

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circumstances arising in the course of armed
conflict.

Philip Alston: “the vast majority of custodial

deaths in Sri Lanka are caused not by rogue police
but by ordinary officers taking part in an
established routine”.

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DE SILVA V FERTILIZER CORPORATION
[1998] 2 SLR 393
 Can a compulsory leave arising out of the existence of
a disagreement amount to cruel and inhuman and
degrading treatment?

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 Article 1 of Resolution 3452 refers to both physical
and mental agony.
 Amarasinghe J.
 ‘In my view Article 11 of the Constitution prohibits
any act by which severe pain or suffering, whether
physical or mental is, without lawful sanction in
accordance with a procedure established by law,
intentionally inflicted on a person by a public official
acting in the discharge of his executive or
administrative duties or under colour of office, for
such purposes as obtaining from the victim or a third 40
person a confession or information….’
BURDEN OF PROOF – IDENTITY OF THE
VICTIM
 ‘The degree of proof required in cases of torture is
one of preponderance of probabilities . Yet the
courts have recognized that the standard of such

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proof varies from case to case, depending on the
nature of the allegations.’
 Viviene Gunawardana v Perera [1983] 1 SLR 305
- a higher degree of probability is required when
it is alleged that the victim was subject to
torture, cruel, inhuman and degrading
treatment.

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CHAHIN V SWEDEN COMMUNICATION NO.
310/2007
 Deportation of person to another State where there are
substantial grounds for believing that complainant

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could be in danger of being subjected to torture.

 Held: deportation would amount to a violation of rights

Belonged to the
Christian minority in
Syria and joined the
Lebanese forces and
took up arms against 42

the state.
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FREEDOM FROM ARBITRARY
ARREST, DETENTION,
PUNISHMENT ETC.
43 Article 13
CRIMINAL PROCEDURE CODE
 Section 37 - Any peace officer shall not detain in
custody or otherwise confine a person arrested
without a warrant for a longer period than under

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all the circumstances of the case is reasonable,
and such period shall not exceed twenty – four
hours exclusive of the time necessary for the
journey from the place of arrest to the
Magistrate.

44
KODITUWAKKUGE NIHAL V POLICE
SERGEANT KOTALAWALA AND OTHERS
[2000] 1 SLR 217
 Petitioner was arrested for a traffic offence and was
assualted in police custody. While he was in the
Kalubowila prison the police officers made an

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application for further remand and the Magistrate
granted it stating that the suspect was present. The
petitioner was then admitted to the Prison Hospital.

 Held: Dheerarathne J: “ We are unable to find any

provision of law granting sanction for a Magistrate to
make such a remand order which is capable of so
insidiously eroding the liberty of the subject (see
Article 13(2) of the Constitution and Section 37 of the
Code of Criminal Procedure Act No. 15 of 1979” 45
WIMALADASA V SOMADASA, POLICE CONSTABLE, BRIBERY
COMMISSIONER'S DEPARTMENT AND OTHERS [2000] 1 SLR
53

 If a warrant for arrest had been cancelled and a police

officer, unaware of such cancellation enforces the
warrant, would there be a violation of rights granted

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by Article 13?

“The respondent bona fide believed that the

warrant handed over to him was in force; and
no malice was attributed to him. In the
circumstances, there was no violation of the
fundamental rights of the petitioner.” 46–
Dheerarathne J
46
WIJERATNE V VIJITHA PERERA, SUB-INSPECTOR
OF POLICE, POLONNARUWA AND OTHERS [2002]
3 SLR 319

 The arrest of the petitioners who were engaged in

a peaceful picketing.

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 "Dissent, or disagreement manifested by conduct
or action, is a cornerstone of the Constitution . . .
Democracy requires that not merely that dissent
be tolerated, but it be encouraged and the
obligation of the Executive is expressly
recognized by Article 4 (d), which therefore
requires that the police not merely refrain from
suppressing lawful dissent but also that they
"respect, secure and advance", the right to
dissent.“ – Fernando J. 47
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ARTICLE 14
48
M.N.D.PERERA V BALAPATABENDI, SEC’Y TO
THE PRESIDENT AND OTHERS [2005] 1 SLR
185
 regarding the appointment of Prime Minister and
access to the Presidential Quarters during the
function and the access granted to the media

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 The petitioner was the news editor of TNL

 Held: . The President's House is not merely the

private living quarters of the President, and for
the swearing in of the Prime Minister the
occasion was a public function at the President's
House to which the media was entitled access.
49
 By excluding the petitioner and his crew from
attending the said function their rights under
Articles 12(1), 12(2) and 14(1)(a) (Equality and

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freedom of speech and expression including
publication) were infringed. Those provisions
were not restricted under Articles 15(2), 15(7) or
15(8). Hence the order of the President to exclude
them was illegal. Notwithstanding Article 35
which conferred personal immunity on the
President, the respondents who complied with
such illegal order had to defend their action. This
they failed to do. 50
 Wigneswaran J. - Decisions with regard to the
personnel to be allowed to enter, the number to
be accommodated should have been

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professionally decided not on the pique and
punctilio of the President".

51
DHANAPALA FERNANDO V ATTANAYAKA,
OFFICER-IN-CHARGE, KANDANA POLICE STATION
AND OTHERS [2003] 1 SLR 196

 Jayasiri Restaurant and Inn (owned in

partnership by the petitioner and his sister.)

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 The manager was arrested for failing to establish
the identity of the couples. He was not asked to
produce the license. The couples were taken to
Kandana Police. Subsequent raid had been done
to recheck whether the inn was functional.
 The petitioner had a license obtained from the
local authority although the police was of the
opinion that the business concerned cannot be
operated without a license from the Tourist
Board. 52
FERNANDO J.
 ...The respondents tried to justify the arrests
upon numerous grounds -that the three couples
were reasonably suspected of an offence,

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cognizably or otherwise and / or of underworld or
of criminal activities; that they were taking
precautions to conceal their presence; that there
was a need to investigate their possible
involvement in such offences or activities, that
they were found in a place reasonably suspected
of being a resort of loose and disorderly
characters; that the police had reason to believe
that the names and addresses given by them 53
were false and needed verification;
CONTD...
 and that they had given contradictory reasons for
their presence at the Inn. The respondents have
totally failed to establish any factual basis

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whatsoever for any of these allegations. That the
arrest had really nothing to do with such matters
and was an arbitrary and high handed
infringement of liberty and invasion of privacy is
manifest.

54
CONTD... HOW TO CONDUCT A LAWFUL
SEARCH?

 Whilst there was evidence of rising crime in the

area, the search was unlawful because the
respondents had no reasonable suspicion but only

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a vague general suspicion that criminals from
outside lodge in guest houses in order to commit
crimes and then leave the area. Further, the
search was effected not with the consent of the
Manager but by forcing him to submit to the
search by the 2nd respondent showing his
weapon. (at p. 198)

55
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FREEDOM OF EXPRESSION
56
MAHINDA RAJAPAKSHA V. KUDAHETTY
AND OTHERS [1992] 2SLR 223
 In September 1990 the petitioner went to Katunayake airport to board an
aircraft bound for Geneva where the 31st session of the working group on
Enforced or Involuntary Disappearances was being held from 10-14 September.
At the airport 1st respondent disclosing the fact that he was an Assistant
Superintendent of Police informed the petitioner that he wished to examine his

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baggage for fabricated documents which were likely to be prejudicial to the
interests of national security, and which were likely to promote feelings of
hatred or contempt to the Government, an offence under Regulation 33 of the
Emergency (Miscellaneous Provisions and Powers) Regulations. The petitioner
refused to permit the search and wanted to contact a lawyer. The first
respondent did not object to this. The petitioner then spoke on the telephone to
Mrs. Sirimavo Bandaranaike the leader of the opposition and thereafter threw
the bags at the first respondent and asked him to examine them. The first
respondent examined the bags and recovered 533 documents containing
information about missing persons and 19 pages of photographs and issued a
receipt for them which was countersigned by the petitioner. The petitioner
however refused to make a statement to the police..
 The petitioner's complaint was that he was invited to address the "Working
Group" but that he was not able to present his case fully before that group. The
invitation to him was as Secretary of the Committee of Parliamentarians for
Fundamental and Human Rights (which is an informal group of opposition
members of Parliament and not a committee of the House) to submit
information for consideration in the preparation of the Working Group's annual
reports. 57
 The invitation was neither an invitation to "address' the Working
Group nor was it an invitation to attend the meeting, nor was there
any evidence that he had even an appointment to meet the Group.
There was no evidence that the petitioner had spoken at all at the

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meeting quite apart from the fact he was unable to present his
case fully. What the Working Group sought was information which
would be an important contribution to its efforts to reflect in its
report the allegations and evaluations, made by non-governmental
organizations or general problems and situations related to
disappearances; what was sought was information of a general
nature and not of a particular nature relating to individual cases.
 The invitation clearly and without ambiguity set out the limited and
special purpose for which the meeting was called. The meeting was
concerned with general issues and, if the petitioner did speak at all,
he made no attempt to show how the giving up of material prevented
him from delineating the issues relevant to the meeting and
presenting the factual contentions in an effective and meaningful
manner. On the other hand, in terms of the carefully structured
procedures of the Working group, the material which he was unable
to take with him was of no relevance to the business of the meeting' of
the kind held in Geneva, its deliberations and its deliberative process. 58
 The material which the petitioner could not take with
him was of evidential value only. As such it was
irrelevant as it was not an evidentiary hearing that

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took place at the meeting. Neither the presentation,
distribution or publication of the material given over,
namely information on individual cases, was
necessary (if indeed permissible at all for the exercise
of his right of free speech at that meeting. Even
material of a general nature, which was the subject-
matters of the meeting, was requested, in terms of the
invitation, to be submitted before August 20, 1990
about three weeks before the meeting. The material
was taken by the 1st respondent on 11th September 59
1990, a day after the meeting had commenced.
 Per Amerasinghe, J. "in my view, if the
expression of thoughts and beliefs, though not
absolutely prohibited or prevented, is directly,

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definitely and distinctly, in a real, concrete and
sufficiently palpable way, and not merely
fancifully or inconsequentially, chilled or
impaired or inhibited, without lawfully
warranted justification, I should hold that Article
14(1) (a) of the Constitution is violated, and grant
appropriate relief and redress. However, the
right to speak must be tailored to the occasion. It
cannot be considered in the abstract or in a 60
vaccum.