Know Your Rights: Fundamental Rights in Sri Lanka
“The rights of every man are diminished when the rights of one man are threatened.”
-John F. Kennedy-
Can you imagine a world where people enjoy the same basic freedom, rights, and protection regardless of who they are and where they are from? (Polsci.institute, 2024). This has been the essence of human rights, which are a set of principles that ensure freedom, equality, dignity, and protection.
Fundamental rights are declared and recognized by the Constitution of a country. As per the Constitution of the Democratic Socialist Republic of Sri Lanka these rights, “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.” (Article 4(d) of the Sri Lankan Constitution)
This article provides a general overview of fundamental rights and explores the key rights that the public should be aware of, to ensure they can protect their freedoms and stand up for justice.
Classification of Human Rights:
Human rights are fundamentally classified into two as:
- Civil and political rights – right to life, right to a fair trial, freedom of speech and expression, and so on.
- Social, economic and, cultural rights – right to education, right to health, right to occupation, and so on.
Fundamental rights in the Constitution of the democratic socialist republic of Sri Lanka (1978)
The Sri Lankan Constitution emphasizes the importance of civil and political rights in its Fundamental rights chapter (III). However, the economic, social and, cultural rights are not directly recognized in Chapter III, but are designed and recognized through other parts of the Constitution (Right to education – Article 27) or through other legislations (Labor laws).
Before knowing the key fundamental rights, it is important to differentiate between justiciable & non-justiciable rights and derogable & non-derogable rights.
Justiciable rights and non- justiciable rights
All the rights recognized under Chapter III are justiciable. Article 17 of the Constitution (Chapter III) provides that a person may file an application to the Supreme Court of Sri Lanka under Article 126, for any infringement or imminent infringement by an executive or an administrative action of a fundamental rights for which he is entitled under this Chapter.
Article 17 gives an exclusive jurisdiction to the Supreme Court to hear matters under this Chapter. It is also important that the infringement or imminent infringement should be by an “executive or an administrative body”
Many economic social and cultural rights are recognized in Chapter VI of the Constitution under directive principles of State policy and fundamental duties. However, these rights are not justiciable. Article 29 of the Constitution explicitly provides that they are not enforceable in any courts or tribunals.
Nevertheless, all rights are indivisible, interrelated, interconnected and interdependent so some of the economic, social, and cultural rights are impliedly recognized under Chapter III.
For instance, right to education, though it is directly addressed in Chapter VI, it is indirectly recognized under equality and non-discrimination under Article 12.
Derogable rights and non-derogable rights
Derogable rights are the rights which can be limited or suspended at times of emergency or during national crisis under specific circumstances (Surya). In Sri Lanka Article 15 of the Constitution provides derogation of certain rights during State of emergency for reasons such as national security, interest of racial harmony, parliamentary privilege, interest of national economy, and so on.
For instance: The right to movement was restricted during Covid-19 through curfew in the interest of protecting public health.
The right to peaceful assembly was restricted during the easter bombing due to reasons of national security.
Non-derogable rights cannot be suspended even during a state of emergency or in times of crisis. Certain rights are so important that it should be always upheld (Surya).
For instance: freedom from torture and freedom of thought, conscience and religion are rights which should be always upheld.
Key fundamental rights
Freedom from torture & right to Life
Article 11 of the Constitution protects all individuals from torture, this is a justiciable and a non-derogable right which should be upheld at all instances. Right to life though not directly recognized by the Constitution of Sri Lanka, is indirectly recognized under Article 11 and Article 13(4).
Generally, torture is a method used to coerce confessions from individuals in custody. It includes not only physical harm but also psychological abuse, particularly if it alters or impacts the victim’s behavior.
Psychological torture would include stripped and displayed naked, locking up the person in a dark room for days and denying food and water. There are several instances where persons even die of torture (Sriyani Silva v Iddamalgoda [2003] 1 S.L.R 14).
Right to equality
Article 12 of the Constitution of Sri Lanka and Article 7 of UDHR provides for the right to equality, which says all persons are equal before the law and have equal protection of the law. “Equal before the law” implies a negative concept, which does not encourage special treatment or privilege in favor of individuals. “Equal protection of the law” on the other hand, is a positive concept which means that there should be equality in treatment of persons who are in similar circumstances (Arif, 2022).
School admission is an issue which frequently arises under right to equality in Sri Lanka. In Madhurangana v AG (SC (FR) 57/2012, Supreme Court Minutes 5 July 2017), 88 petitioners filed applications for admission to one school, this shows the frequency of applications and challenges faced in admitting to schools. Though right to education is a right under Article 27 and non-justiciable, it is often brought under Article 12, claiming non-compliance with due process in determining admissions to schools (Samararatna, 2020, p. 116).
Reasonable classification is an exception to Article 12. Usually, there are legislations passed applying certain laws and criteria for classes of people. Here classes mean a homogenous group of people who are grouped together because they share some characteristics. Such classification should be for reasonable object (Arif, 2022).
Following are criteria laid down for reasonable class classification in the cases of Budhan Chaudhary v. the State of Bihar (1955) and Vajravellu Mudaliar v. Special Deputy Collector for Land Acquisition (1965)
- The classification must not be arbitrary. There must be some rational reasoning behind the distinction.
- There must be some rational object behind the classification. The classification can be based on various factors like geography, age, or occupation. The object of the legislation should align with the classification (Arif, 2022).
When claiming for right to equality it is important that you do not claim for equal violation of the law CW Mackie v. Commissioner General of Inland Revenue [1986] 1 SLR 300. Equal violation is not equal right.
Arbitrary arrest and detention
Article 13(1) of the Constitution states that no person shall be arrested except according to the procedures established by law and the person arrested shall be informed of the reason for the arrest. The procedure for arrest is outlined in the Criminal procedure Code.
It is also important that the person arrested be brought before the nearest competent court and not be further held in custody, as per Article 13(2). However, there are instances where the reason for arrest is not communicated, and individuals are kept in custody for more than 24 hours, which constitutes a violation of their rights under Article 13.
Persons may be kept in custody for extended period for further investigation on specific legal justification as enshrined in the law. However, the person must still be brought before the court as soon as possible. There are also instances where a person is kept in confinement or restraint without formally arresting him or under the colorable pretension that an arrest has not been made when to all intents and purposes such person in custody shall be deemed to be an arrest of that person as per Piyasiri and Others v Nimal Fernando [1988] 1 SLR 173 (bashipubs).
We have witnessed several arrests under the Prevention of terrorism Act (PTA). Which is widely criticized for being arbitrary and abuse of power. A Tamil priest named Barmasiri Chandraiyer Ragupathi Sharma was arrested in 2000 on suspicion in involvement in LTTE attack and was held in remand until 2015 and then was convicted to 300 years imprisonment based on a confession obtained through continuous torture, which was recorded in Sinhala which was a language he could not understand (Human Rights Watch, 2022). We have witnessed number of social media activists and journalists been arrested for raising their opinion against the Government (Keenan, 2022). Very recently a prominent lawyer, several ministers and a young poet were also arrested under the PTA following the Easter bombing.
Generally, a warrant is required to make an arrest however, there are instances where a peace officer may arrest without warrants (Section 32 of Code of Criminal Procedure Act).
Right to information
As per Article 14A every citizen has the right to access information from public authorities. This is a key for public accountability and transparency to address corruption and increase public participation in policy making (UNDP Sri Lanka, 2019).
To obtain information, you may give a written request to the relevant information officer or an oral request which they may assist to put in writing, Upon the request, the information officer acknowledges it and responds with the relevant information. If it involves confidential information from a third party, he will inform the third party in writing and he may notify in writing within 1 week giving his consent or refusing to disclose such information. Even on refusal if it is proved that it is important on public interest rather than private, the information officer should release such information (RTI Sri Lanka, 2017).
If the information is refused on other basis except as provided by law, the person dissatisfied by the decision may appeal to the designated officer in the same authority. If the designated officer does not respond or on dissatisfaction of his response, the person may appeal to the Right to information commission (RTI Sri Lanka, 2020).
Speech and expression
Freedom of speech and expression is a foundation of the functioning of any democratic country. In Sri Lanka it is enshrined in Article 14 (1) (a) of the Constitution and is a derogable right, which could be restricted under Article 15.
The country has witnessed various forms of censorship aimed at regulating content across different media platforms, including print, broadcast, and digital (Generis Global Legal Services, 2024). We have recently witness internet censorship, where the government blocked all social medias during political unrest to control the flow of information. However, there are also instances of self-censorship. These however, raises concern on suppression of voices.
Government has taken some legislative measures to support freedom of speech, particularly the steps to amend PTA. Further, several judicial decisions have shaped the discussions of freedom of expression addressing the rights of journalist, activists, and citizens (Generis Global Legal Services, 2024).
It is important for the public to know their rights. The right to freedom of speech and expression is a fundamental right guaranteed by the Constitution. If there are any unreasonable restrictions, citizens may approach the Supreme Court to seek redress. However, citizens should remain vigilant and avoid defamation or the use of hate speech.
Challenges to human rights
United Nations plays a significant role in promoting and protecting human rights and has developed a comprehensive framework of international human rights instruments including UDHR, International Covenant on Civil and Political Rights (ICCPR) and International Covenant on Economic, Social and Cultural Rights (ICESCR) (Polsci.institute, 2024).
There are numerous challenges to human rights such as conflicts and violence, poverty and inequality, discrimination, and climate change.
Another challenge is the filing of petitions in the Supreme Court. It is mandatory that the application should be filed within 1 month from the infringement/imminent infringement of the fundamental right or 1 month from the knowledge of such violation. In case of continuous violation 1 month from the last act in the series of acts. However, public interest cases are an exception Sugathapala Mendis and another v. Chandrika Kumarathunga and others [2008] 2 SLR 339. A person may also file a complaint with the Human Rights Commission, which will suspend the time limit for filing the same application in the Supreme Court.
Conclusion
Fundamental rights are essential for the protection of individual freedoms and the functioning of a democratic society. In Sri Lanka, the Constitution safeguards these rights, though challenges to their full implementation persist. Public awareness of these rights, including the avenues for seeking justice, is crucial to uphold and advance fundamental rights and freedoms.
References
Arif, A. M. (2022, March 21). Equality before law and equal protection of law. Retrieved from blog.ipleaders.in: Link
bashipubs. (n.d.). Arrest: Restriction of Right of Free Movement. Retrieved from http://www.scribd.com: https://www.scribd.com/document/405723405/Arrest
Budhan Chaudhary v. the State of Bihar (1955)
Code of Criminal Procedure Act 1979
Constitution of the Democratic Socialist Republic of Sri Lanka 1978
CW Mackie v. Commissioner General of Inland Revenue [1986] 1 SLR 300
Generis Global Legal Services. (2024, November 28). Freedom of Speech and Censorship Laws in Sri Lanka: An Overview. Retrieved from generisonline.com: https://generisonline.com/freedom-of-speech-and-censorship-laws-in-sri-lanka-an-overview/
Human Rights Watch. (2022, February). In a Legal Black Hole: Sri Lanka’s Failure to Reform the Prevention of Terrorism Act. Retrieved from Human Rights Watch: https://www.hrw.org/report/2022/02/07/legal-black-hole/sri-lankas-failure-reform-prevention-terrorism-act
International Covenant of Civil and Political Rights 1966
International Covenant of Economic Social and Cultural Rights 1966
Keenan, A. (2022). The Politics of the Prevention of Terrorism Act (PTA) and PTA Reform. Retrieved 03 24, 2023, from Sri Lanka campaign for peace and justice: https://www.srilankacampaign.org/wp-content/uploads/2022/03/AK-article-on-PTA-FINAL-PDF.pdf
Madhurangana v AG (SC (FR) 57/2012, Supreme Court Minutes 5 July 2017
Piyasiri and Others v Nimal Fernando [1988] 1 SLR 173
Polsci.institute. (2024, March 12). Understanding the fundamentals of human rights. Retrieved from Polsci.institute: https://polsci.institute/civil-society-political-regimes-conflict/understanding-fundamentals-of-human-rights/
RTI SRi Lanka. (2017, January 13). Right to Information. Retrieved from rtirilanka.lk
RTI Sri Lanka. (2020, December 11). Right to information Commission. Retrieved from RTISri Lanka.lk: https://rtisrilanka.lk/en/right-to-information-commission/
Samararatna, D. (2020, January). JUDICIAL PROTECTION OF FUNDAMENTAL RIGHTS in Sri Lanka: State of Human Rights 2018. Retrieved from Research Gate: Link
Sriyani Silva v Iddamalgoda [2003] 1 S.L.R 14
Sugathapala Mendis and another v. Chandrika Kumarathunga and others [2008] 2 SLR 339
Surya. (n.d.). Civil and Political rights. Retrieved from ebooks.inflibnet.ac.in: https://ebooks.inflibnet.ac.in/hrdp03/chapter/non-derogable-rights-2/
United Declaration on Human Rights 1948
UNDP Sri Lanka. (2019, November 29). Strengthening Right to Information in Sri Lanka. Retrieved from UNDP.org: https://www.undp.org/srilanka/press-releases/strengthening-right-information-sri-lanka
Vajravellu Mudaliar v. Special Deputy Collector for Land Acquisition (1965)
