Introduction

Fundamental rights are the inalienable human rights that are, incorporated in written codes of law. Prma facie most of the countries around the world today have a fundamental right in their constitutions. The main reason being its vitality for the protection of natural rights of the human kind.

Fundamental rights violation through executive action, encompass a great threat to the operation of natural law. Corrupted governments and executives more often get advantage from the disadvantaged crowd in the society. Sriyani Silva v. Iddamalgoda [2003] 2 Sri LR 63;, Wewalage Rani Fernando case, SC(FR) No 700/2002, SCM 26/07/2004) are two cases which shows strong evidence for the culpable actions by the executive officers, destructing the law of this country.

The subject case here “Siril Kumara V. IPChanakaWijerathne and others”,is also a similar case where police officer acted ultra virus. As a result, the petitioner to the case had suffer physically, mentally and financially with threats upon his natural rights. These situations are more common in the environment today and lot of poor marginalized people suffocate without proper systems to penalize the wrongdoers by taking them in front of the courts. Therefore , I feel violation of fundamental rights should be taken careof with greater care to dispense justice justifiably.

Facts of the case

In the Supreme Court of Sri Lanka

Democratic Socialist Republic of Sri Lanka

In the matter of an application under article 17 read with 123 of the constitution of the democratic Socialist Republic of Sri Lanka.

  1. HelarambaGamaralalageSirilKumara

24/a,

Pokunuwela

Kalukotuhena

Kithulgala

  1. GonnanaGamaralalageAmilaSusanhaKulathunga

Helaramba

Kithulgala

  1. HettiarachchilageAjithAriyathilaka

Koswatte,

Kithulgala.

Petitioners

V.

  1. IP ChanakaWijerathne

Officer in charge

Kithulgala Police Station

Kithulgala

  1. SI Gunesena
  2. Si Senaratne
  3. Sargent Sandamal
  4. Sargent Gunawardena

All ofKithulgala Police Station

  1. PujithaJayesundara,

Inspector General of Police

Police Head Quarters

Colombo 01

  1. Hon. Attorney General,

Attorney General Department

Colombo 12

Respondents

Facts of the case

Helaramba Gamaralalage Siril Kumara 42 Years who is engaged in the business of toddy tapping (“Kithulramedima”) by profession is the first petitioner in this case. He resides in Pokunuwela, under the Kithulgala Police Division.

He is complaining that the police officers of the Kithulgala Police station continuously engaged in various wrongful and illegal activities and the petitioner was subjected to such harassment since a long period of time. According to the petitioner the things got beyond subjugation till 28th July 2018.

To elaborate much more in to the details the petitioner complains therewith that the police officers of the Kithulgala Police station on numerous occasions have required the persons in the regions who are engaged in lawful toddy tapping to bribe them with toddy for consumption wrongly. He also says that in circumstance where the toddy tappers fail to provide toddy free of charge for the said officials, they take actions to produce the persons in front of the courts purportedly in relation to illicit liquor offences.

Notwithstanding these, the petitioner including the other toddy tappers living in the vicinity have been the victims of the requirement for achieving prosecution targets set by the superior officials in the Polices station. Occasionally these victims were forced to plead guilty for the possession of small quantities of illicit liquor and then to pay penalties ranging from Rs.1,000 to Rs.15,000.The failure again would result in further harassment and the intimidation by the said officials.

Then again, the petitioner asserts that he was also produced before the magistrate court of Ruwanwella several times by the Kithulgala police officers for allegedly possessing illicit liquor. He further states that the he was compelled to plead guilty and to pay fines upon in order to continue the toddy tapping peacefully without the incumbrances. He also reports of the illegal threatening accorded to him by the police officials.(All copies pertaining to the fines paid at several instances were attached in the annexures to this study)[1]

Being specific and to the matters of this case the petitioner SirilKumarafiles the actions against the 2nd respondent to this case, SI Gunasena, against compelling himself to produce liquor for consumption to the said official and to his associates. He asserts he compelled to such orders knowing he is not obliged under the law and on the 28th of June 2016 he supplied 28 litres of toddy free of charge to a restaurant named Adventure Base Camp, Kalukotuhena Kithulgala as required by the 2nd respondent SI Gunasena.

Following two days to the above said incident on 30th June 2016, the said official SI Gunasena along with several other officials had visited the house of Siril Kumaraand demanded that he plead guilty of possessing illicit liquor. Siril Kumara havingfrustrated since along period of time had refused to plead guilty. Then the said crew had assaulted the petitioner, thereafter arrested and produced before the magistrate court of Ruwanwella. (The camera images of the assault done to the petitioner, SirilKumara are attached herewith in the annexures). The medical of Provincial General Hospital of Ratnapura was then assigned to produce a report on the assault by the Kuruwita Prison authorities and the officer had indicated that the injuries that suffered were consistent with the assault. He states that the said case of assault was not produced before the Lordships’ court in fear of the reprisals.

The torture never ended and on July 13th 2017, the had entered the Siril Kumara’s premises without a warrant and forcefully searched the premises, having found no illegal articles produces the petitioner and one of his associates in front of the magistrate falsely for having in possession 21000ml of illegal liquor. He asserts that the said illegal liquor was introduced by the 1st responded and he denied all the allegations against him.(A copy of the case 69824 and the case against associate case no 69823 are attached herewith).

And sequentially another attack was made by the officers on 28th of July 2017. 3rd and 4th respondents arrived the petitioner’s premises at around 4.30 Pm and took in to possession a small quantity of toddy tapped by himself and accused for having in possession illegal toddy. When the permit was to be produced by the petitioner the officials has denied it saying “ Apit aowain wedak ne” and then tried to take him under arrest.

Refusing the illegal arrest when the petitioner disapproved the police orders the official have tried to take him to the police station coercively.

Due to the forceful attempts made by the police the petitioner had collapsed on the ground and then the police have continuously beaten him with the hands, legs and the battens. In objection with wife and other two villagers have raised their voices. Notwithstanding the third respondent has then dragged and beaten him up again. Meanwhile the other two petitioners have recorded the crime seen and seeing which the police inspectors have pulled out the mobiles phones from the hands of the petitioners. Thereafter the 2nd and the 5th respondents too having arrived at the see have once again stated slapping the petitioner. While the wife of the petitioner tried to put the excise officer on the phone for the respondents, they have refused to talk to the excise officer.

Then giving no reasonable grounds for an arrest the officers have put the petitioner in a jeep and brought him in to a remand cell. Thereafter the mobile phoned snatched from the 2nd petitioner was returned to the said person having deleted the video recording of the assault done to the 1st petitioner. Aftermath taking the petitioner, Siril Kumara in to custody the police has again ransacked his entire house without a search warrant, shouting at the wife of the petitioner in obscene language to find some reason for the detention of Sirl Kumara. Aftermath having found some meat from wild boar from the fridge of the petitioner then they have emptied the fridge on the garden and taken the fridge as well in to custody.

On 29th July 2017 around 12.30 am the petitioner was produced before the Medical Officer of the Kithulgala District office and the said doctor without examining him has required forcefully to sign a document by the petitioner without making him aware of the content thereof. Similar way the 2nd and the 3rd respondents too were taken to the DMO of Kithulgala area and having done no examinations have forced to sign some papers without disclosing the content of such documents. The petitioners state that the Medical Officer issued a falsified medical report stating that the petitioners sustained no harmful injuries.

Having not given bail by the magistrate of Ruwanwella, the three petitioners were remanded till 1st August 2017. It was also found that the case 70092 was palpably falsified by the 3rd responded under the Section 136 (1) (b) of the Criminal Procedure Code. The petitioner claims that the respondents introduced liquor and meat falsely in to his premises.

Petitioners also state that after the release, they themselves got admitted to the Karawanwell Base Hospital and upon receiving examination by the specialist, it was revealed that all the three petitioners sustained soft tissue injuries.

Therefore an application for leave was made by the petitioners to the supreme court of Sri Lanka, alleging on the grounds of infringement of their fundamental rights by the respondents to this case herein mentioned.

Analysis of the Law

Legal Implications from the facts of the case

The dictionary says Implication is ‘the conclusion that can be drawn from something although it is not explicitly stated’. It suggests that legal implications of a case would not be clearly visible from the exterior, nor it would come in to light through ostensible investigation. To find such implications one would always have to probe in to the question or to the case to entwine each and every material connected with it.

Case analysis in a legal point suggest; “Identifying the Issue and Decision. Determine the legal issue raised by the facts. The core of case law analysis is figuring out the exact issue or issues the court is being asked to resolve, and the process by which the court resolved it.” (How to Analyze Case Law: 11 Step, n.d.)

In an article published by the “Wiki how”, it highlights the basic steps of analyzing the case law. Herein for the purposes of this report a similar approach was followed as follows.

1st Phase

  1. case
  2. Identify the parties
  3. Identify the nature of the violation

2nd Phase

  1. Determine the legal issues raised by the facts

3rd Phase

  1. Rules used by the court -Judicial precedence
  2. Apply the rule to the facts of the case
  3. Analyze the practical applications

This part of the report “Analysis of law” will follow the above illustration to present the case analysis in a coherent manner.

Identifying the Parties

Identifying the parties in litigation forms the underground principle of a lawsuit raised in courts. Though it might sound very simple and straightforward in a civil litigation, in a criminal case or fundamental rights litigation it underpins several hardships. Specially in peculiar fundamental rights cases, alleging extends beyond the visible parties to the violation.

“At present FR violations are directed against the State.” (De Silva, S.S.M.,2016), therefore it comes with vigorous attention to choose the parties to this kind of litigation.Accordingly, the parties to aforementioned case include three petitioners, SirilKumara, AmilaSusantha and Ajith Ariyathilaka and seven respondents namely five police officers directly participated in the violation Chanaka Wijerathne, and SI Gunesena, SI Senaratne, Sargent Sandamal, Sargent Gunewardena and all of police officers in the Kithulgala, PujithJayesundera the Inspector General of Police and the Hon. Attorney General of Sri Lanka.

Role of attorney General in the litigation

Attorney general is the “principal legal adviser of the state in legal proceedings”. Sri Lankan Attorney General’s Department website sites, “The Attorney General is the Chief Legal Advisor to the Government. In that capacity he advises the Government.” Therefore any legal suit against the government is directed against the attorney general of Sri Lanka and is made a respondent to all violations against the state.

The case file also read as “The 7th respondent is the Hon Attorney General of Democratic Socialist Republic of Sri Lanka has been made party to this application in terms of Article 134 of the constitution and as the representative of government of Sri Lanka”. The article 134 (1) of the 1978 constitution reads, “The Attorney-General shall be noticed and have the right to be heard in all proceedings in the Supreme Court in the exercise of its jurisdiction under Articles 120, 96[121, 125], 126, 129(1) and 131.”

And 134 (2) reads, “Any party to any proceedings in the Supreme Court in the exercise of its jurisdiction shall have the right to be heard in such proceedings either in person or by representation by an attorney-at-law”. Therefore it’s the procedure in every litigation which comes before the supreme court to make Ho. Attorney general a party to this allegation.

Procedural Law Vs. The substantive law

When analyzing case law, it warrants attentions towards two aspects of the law, mainly procedural aspects and substantive aspects of the law. For clarity the report will descriptively present the two aspects separately. The substantive law relevant to the case will be discussed first and the procedural law relating to the case will be dealt in the second place.

“Procedural law consists of the set of rules that govern the proceedings of the court in criminal lawsuits as well as civil and administrative proceedings. The court needs to conform to the standards setup by procedural law, while during the proceedings. These rules ensure fair practice and consistency in the “due process”. Substantive law is a statutory law that deals with the legal relationship between people or the people and the state. Therefore, substantive law defines the rights and duties of the people, but procedural law lays down the rules with the help of which they are enforced.” (Diffen ,n.d.)

Therefore, as warranted in the guidelines to this study procedural law and the substantive law relevant to this case will be separately discussed hereinafter to this section of the report.

Procedural law

Is fundamental rights violation a criminal suit?

In Sri Lanka, the structure of the court system is designed based on the nature of the lawsuit intended to file. Therefore, the law states thus, “ In cases involving criminal law, a Magistrate’s Court or a High Court is the only court with primary jurisdiction; The respective legal domains of each are provided in the Code of Criminal Procedure.” (Legal system of Sri Lanka, 2015) .

Also criminal suits it self are considered as violations against the state. Oppose to criminal law suits “civil Law” suits are wrongs and violation against private persons and districts courts would be the courts of first instance for such matters.

Also on the other hands fundamental right violations too are considered grave offences against the state, with written rules and procedures binding it. Yet these similarities alone does not suggest that it falls under the category of criminal law. As the Constitution guarantees the fundamental rights of its citizens by IVth chapter of the same, therefore there is separate branch of suits for the fundamental rights violation, that is : constitutional law. Therefore, the violations against the supreme law of the country constitution, accord special treatment that is different from the conventional criminal and civil suits which is beyond the conventional practice of the court system.

Table 1 Civil, Criminal Vs Fundamental rights suits

Civil SuitCriminal SuitFundamental rights violation
Against a person.Crime is against state.Petition is against state
Plaintiff Vs. DefendantProsecution Vs. DefendantPetitioner Vs. Respondent
Governed by civil lawGoverned by criminal lawGoverned by constitutional law
Person files action in a civil court (According to civil procedure code)State files action in a criminal court (According to criminal procedure code)State files action in the Supreme court (According to criminal procedure code)
Recovers damages.Imprisonment, fine, whippingAward of compensation
Decided on the weight of probabilityDecided on proof beyond reasonable doubt,Decided on the weight of probability
E.g.: Non- payment of rent Most of medical negligence etc.E.g.: Murder, Rape, Infanticide, Abortion, etc.E.g.: Freedom to live, torture, religion, opinion

Therefore it seem that fundamental rights litigations are a different suit distinctive from the civil and the criminal cases. Even though, the fundamental rights are technically categorized as a civil action and the liability for proof is ‘reasonable doubt”, there are instances where, criminal elements may also encompass in the cases of torture, inhuman degrading treatment and ultimate death situations.As the procedure inclived is different as herein explained the code applies here is the Supreme court rules. As per the current law the applicable rules are the “Supreme court rules of 1990” and the procedure to be followed will be elaborated in the coming sections to this report.

Procedure to be adopted

Article 17 of the constitution of Democratic Socialist Republic of Sri Lankan says that, “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 person is entitled under the provisions of this Chapter”

And the Article 126 of the same reads,“The Supreme Court shall have sole and exclusive jurisdiction to hear and determine any question relating to the infringement or imminent infringement by executive or administrative action of any fundamental right or language right declared and recognized by Chapter III or Chapter IV.”

How to proceed?

Article 126 (2) of the 1978 constitution provides that, “Where any person alleges that any such fundamental right or language right relating to such person has been infringed or is about to be infringed by executive or administrative action, he may himself or by an attorney-at-law on his behalf, within one month thereof, in accordance with such rules of court as may be in force, apply to the Supreme Court by way of petition in writing addressed to such Court praying for relief or redress in respect of such infringement. Such application may be proceeded with only with leave to proceed first had and obtained from the Supreme Court, which leave may be granted or refused, as the case may be, bynot less than two judges.”

It is now clear that the person whose fundamental rights being violated has to come to the courts through a petition submitted initially. In that case it is therefore established that the plaintiff in a fundamental litigation is referred to as the petitioners and the accused is called the respondents.

Supreme court rules

  • According to the supreme court rules (rule 65), the petitioner for a fundamental rights case, has to by himself for by his attorney at law file a petition and an affidavit, and a statement of submissionalong with a motion to the supreme court that the petitioner be granted leave to proceed on the grounds enumerated in the petition.
  • Petition and affidavit to be filed in three copies each together with four copies or written submission in support of his case.
  • The registrar will serve one set of copies with the attorney General
  • Whether leave is granted and notice of application together with a copy of written submission shall be given by forthwith by the registrar to each of the respondents other than the attorney general.

Rule 65(4) provides,

  • “Respondent may, within seven days of the service of such notice and written submissions,filecounter-affidavit and counter-submissions with notice to the Petitioner. Any further writtensubmissionsbyany shall be permitted only at the discretion of the court.
  • Registrar will issue notice to the attorney general that leave has been granted
  • Counsel’s oral submission shall be heard by the court.

Status of the proceedings relevant to this case

  • Petitioner affidavit and the statement of submission filed on 10th October 2016
  • Objections from the respondent were not files.
  • The case was heard on 24th January 201
  • Leave to proceed was granted based on the Articles 11,13(1), & 14(g)
  • Compensation not yet awarded

Petitioner’s plead for justice

The attorney at law appeared for the petitioners, requested the court’s lordship to suspense the below justice for the petitioners.

  • Grant leave to proceed in the first instance
  • Declare that the 1stpetitioner’s fundamental rights guaranteed by the Article 11,12(1) and 13(1) together with Article 14(1)(g) of the constitution, were infringed by the anyone or more of the 1st to 5th respondents.
  • Declare that the 2ndpetitioner’s fundamental rights guaranteed by the Article 11,12(1) and 13(1) of the constitution, were infringed by the anyone or more of the 1st to 5th respondents.
  • Declare that the 3rd petitioner’s fundamental rights guaranteed by the Article 11,12(1) and 13(1) of the constitution, were infringed by the anyone or more of the 1st to 5th respondents.
  • Direct the 6th and /or 6th respondents to initiate independent prosecution/ or take appropriate penal sanctions against 1st to 5th respondents for the violation of Fundamental rights of the petitioner.
  • Grant compensation for the above violations in a sum of Rupees Five Million (Rs 5,000,000) or such other sum as deemed appropriate by your Lorship’scourt ;
  • Grant exemplary and / or punitive costs in the discretion of Your lordship’s court to the Petitioners in view of the circumstances of this case.
  • Grant such other relief and/ or issue such directions as may be just and equitable by Your lordship’s court under and in terms of Article 126(4) of the constitution considering all facts and circumstances of this case.
  • Grant such other and further relief your Lordship’s court shall seem meet

Substantive Law; Was there a real violation of law?

This part of the report deals with the substantive law and discussion regarding the case.The purpose of law is to regulate human behavior/ conduct to maintain the social Order. Therefore, all the citizens of a country are abide by the laws of a country written/ unwritten by means of constitution, statutes, bills customs and ect. These laws must be inviolable for the peaceful existence of the mankind.

As said there is multitude of sources of law where country legal code is comprised of. In the Sri Lankan context the supreme source of law being the constitution there are other various legislature to guide the court system is dispensing the Justice.

Getting on to the point, any human act either intentional or unintentional depending on the circumstances may be that is repugnant to the established legal code of a country are deemed legal violation. Moreoverif the violation is against the constitutionally protected rights, the consequences and the concern over such matter would be more grave than in the cases of ordinary offences.

The subject case here, is filed against the violation of fundamental rights, rights which are guaranteed by the 1978 constitution of Democratic Socialist Republic of Sri Lanka asinviolable and the which is the fundamental duty of the state to protect the same.

Chapter III of the 1978 constitution consist of the fundamentalrights. And the right guaranteed could be briefed as follows,

  1. Article 10 -Freedom of thought, conscience and religion
  2. Article 11 – Freedom from torture
  3. Article 12 -Right to equality
  4. Article13 – Freedom from arbitrary arrest, detention and punishment and prohibition of retrospective penal legislation
  5. Article 14 – Freedom of speech, assembly, association, occupation, movement, &c 6 Article 14A Right of access to information.

In analyzing the above case the court has to distinctly answer to the question whether each /any of the fundamental rights of the petitioners have been violated. If so, if the violation was due to the respondent’s actions.

The fundamental rights when read together with the Article 17 and the Article 126 of thedemocratic constitution of Sri Lanka give the right to the persons subjected to such infringement to directly file an action in the supreme court as stated above in the procedural section to this case analysis.

Article 17 prescribes the, “Remedy for the infringement of fundamental rights by executive action” while the Article 126 states thus, “The Supreme Court shall have sole and exclusive jurisdiction to hear and determine any question relating to the infringement or imminent infringement by executive or administrative action of any fundamental right or language right declared and recognized by Chapter III or Chapter IV.”

Was there a violation by executive action ?

To proceed with leave for “fundamnetal rights violation against exectuive action”. and to get aid of Article, 17, Article 17 of the constitution of Democratic Socialist Republic of Sri Lankan says that, “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 person is entitled under the provisions of this Chapter”, it should be guranteed that the violation was a matter of infringemnt by the executive action.

In SC. FR. Application No.24/2013. KalidasageRoshanChaminda “The thresh-hold issue to be decided is whether the matter before Court is within the category of “contract” or “executive and administrative action”.

One news paper article centred on this matter stated “In Thadchanamurthi v Attorney General, 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’. Acts of torture by subordinate officers of armed forces could only be attributed to state only if they are authorized or performed for the state. A broader view was taken in Velmurugu v Attorney General. Here it was stated that only acts done under the colour of office falls under executive action meaning that the particular act in question should be done within the scope of their authority.

However the Court was of the view that if the acts are not authorized for the benefit of the State, then the State cannot be held responsible for such acts. The minority took the broader view that executive or administrative action includes direct state liability. ” (Thayaparan, P., 2017). Therefore it could visibly be identified that the police officer in this case has acted in the colour of their office. Therefore they are liable for the infringement.

Were the fundamental rights of the three petitioners subject to infringement?

Surface reading of the case understands that fundamental rights protected by the constitution have been infringed in the case of the three petitioners. Basically, it shows a violation against the Articles 11, Article 13 and Article 14 of the constitution. And a detailed analysis will be carried out in this section against the each of the violation.

Article 11 – Freedom from torture

Article 11 states that “No person shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment”.

In the case, Sriyani Silva v. Iddamalgoda, [2003] Sri LR 63 it was pronounced that“ Article 11 guarantees freedom from torture and from cruel and inhuman treatment or punishment. Unlawfully to deprive a person of life, without his consent or against his will, would certainly be inhuman treatment, for life is an essential pre-condition for being human”

In this case of Siril, it is prima facie evident that the petitioner’s suffering falls under the definition of “torture” in this section. The facts of the case illustrate that the main petitioner of this case, SirilKumara together with AmilaSusantha and AjithAriyathilaka were subjected to torture and degrading treatment and punishment.

According to the facts of the case third respondent on 2th July while attempting to take Siril in to custody, has then dragged him on the ground and beaten him up again and again. Petitioner also states that “thereafter the 2nd and the 5th respondents too having arrived at the scene have once again started slapping the petitioner’.

And the impartial medical records provided by a specialist of Karawanwell Base Hospial claims he has suffered soft tissue injury as the consequences of the assault. The consequences here are grave as for my knowledge as the petitioner Siril, himself is a person who engages in manual labor (toddy taping which includes tree climbing) in the ordinary course of his business and therefore needs lot of physical endurance. Therefore the treat upon his possible loss of future income should have to be recognized by the courts.

Furthermore, in Tomasi v France (1992) (15 EHRR 1), the Applicant claimed that he had been subjected to inhuman treatment while in Police custody and this alleged assault was corroborated by medical evidence leading to a declaration by the Court that the Applicant’s rights had been violated

Prima facie the facts of the case also present to the knowledge of the court that the initial report done by the medical officer of Kithulgala is falsified by the officer himself intentionally.

Assault during the arrest

Section 23 sets forth several guidelines in making an arrest, It says, “(2) If such person forcibly resists the endeavor to arrest him, or attempts to evade the arrest, such police-officer or other person may use all means necessary to effect the arrest.”

Here in this case, the problem comes up as to whether the police used necessary force to make the arrest. In this particular case, Siril was threatened by the police officers that “he will be taken in to custody”.

when Siril was asking for “reasons” for such arrest, police officers have assaulted him and then dragged him on the ground after him collapsing to the ground. Then again, the respondents who had arrived later have slapped him a several times.

Therefore, it seem that the respondent police officers in this case have violated the law by using more than the force was in necessary to accompany an illegal arrest.In one of the supreme court cases, Sri Lanka the assault during arrest have taken in as a violations of the fundamental right.

Article 13 – Freedom from arbitrary arrest, detention and punishment and prohibition of retrospective penal legislation

Article 13(1) states “No person shall be arrested except according to procedure established by law. Any person arrested shall be informed of the reason for his arrest’

Arbitraryarrest connotes the meaning that “the custody /remand made against the procedure established by law”. “Procedure Established by Law. It means that alaw that is duly enacted by the legislature or the concerned body is valid if it has followed the correctprocedure. Following, this doctrine means that, a person can be deprived of his personal liberty according to the procedure established by law.” (Procedure Established by Law vs Due Process of Law, 2017).

Here in this case, the law therefore applies in the matters of arrest, and custody will be the corresponding sections of Code Of Criminal Procedure Act (No. 15 of 1979) in a Sri Lankan context. The act prescribes involving the procedure to arrest, custody and detention, all other such elements and procedure to be followed when it comes to trial of penal offences. In much simpler explanation, prosecution of criminal offences should be dealt along with compliances to such laws enacted in the criminal procedure code.

In the case of Siril, the matter before the supreme court, the question arises whether they followed the procedure established by law?

Search without warrant

Prima facie the question comes up front in a “search without warrant” is, whether it constitute a violation of a fundamental right. Though not many court judgements are not made solely on this matter, definitely it is a violation of liberty of persons. In this matter clear rules of search have to be made in order to prevent arbitrary search by the police officers.

Section 68 of the code of criminal procedure code deals with the search warrants. It says the magistrate will issue a search warrant to investigate such premises as the necessity may be.Altogether “Section 68 of the Police Ordinance spells out the restrictive grounds on which the police are empowered to search premises. It reads as follows:

“68- It shall be lawful for any police officer without a warrant, to enter and inspect all drinking shops, gaming houses and other resorts of loose and disorderly characters, all premises of persons suspected of receiving stolen property, any locality, vessel, boat, or conveyance in any part whereof he shall have just cause to believe that crime had been or is about to be committed, or which he reasonably suspects to contain stolen property, and then and there to take all necessary measures for the effectual prevention and detection of crime, and to take charge of all property reasonably suspected to have been stolen, and of all articles or things which may serve as evidence of the crime supposed to have been committed, and to take charge of all unclaimed property.” (Seneviratne, T., 2011 in Sunday times)

Following above said rules search warrant is necessitated for every such search excluding above premises. Specially in this matter of “Siril” the search had been his residence, there is no such proff that it goes under the definition of a “drinking shop”. Therefore, in this matter before the courts it is established that the offence of “search without a warrant” had been committed by the police.

Arrest without warrant

Most importantly the second matter before the courts is whether,arrest without a warrant and detention was lawful according to the due procedure in law as per this case. According to the Criminal Procedure Act (No. 15 of 1979), chapter one, are offences distinct as cognizable and non-cognizable which respectively needs an arrest warrant and do not need an arrest warrant. As per the first schedule to the same act thereto categorizes the possession / sale of illicit liquoras an offence under the chapter XIV ,(offence affecting public health, safety convenience, decency and morals). Therefore, according to law if such person is caught having in possession any illicit drug/ alcohol the police under such law are entitled to take him under custody without issuing an arrest warrant.

Accordingly, the Sec 32 to the Criminal Procedure Act states that,(1) any peace officer may without an order from a Magistrate and without a warrant arrest any person

(b) who has been concerned in any cognizable offence or against whom a reasonable complaint has been made or credible information has been received or a reasonable suspicion exists of his having been so concerned;

(c) having in his possession without lawful excuse (the burden of proving which excuse shall be on such person) any implement of house-breaking; .

But as per the petition of the Siril concerned there had been no illicit form of liquor at the instance of the arrest on28th July. And petitioner also goes on to say that the report submitted by the respondents in the magistrate court of Ruwanwella, accusing for illegal procession of illicit drugs by “Siril” was mere false accusations to make him punish for not obeying the illegal orders by the police.

In an article published by Chandra TilakeEdirisuriya, for Ceylon Today she asserts that “where the Police officer took exception to the manner in which the accused spoke or behaved and ordered his arrest ‘to teach him a lesson’, the arrest would be unlawful”. She further cites that “Baba Appu v AdanHamy (1900) 1 Browne’s Rep 34 that it is a question of fact, to be determined in the light of the circumstances of each case, whether the complaint received by the Police against the accused is a reasonable one.”

Therefore it is more clearer at this instance that the “arrest without warrant in such cases without “‘credible information’ or ‘reasonable suspicion.’ according to the criminal procedure law is a prima facie violation of the rights under Article 13(1) of the constitution.

Restriction of Fundamental rights

Articles 15 and 16 of the constitution relates to the restrictions on fundamental rights.Article 15 (7) ‘The exercise and operation of all the fundamental rights declared and recognized by Articles 12, 13(1), 13(2) and 14 shall be subject to such restrictions as may be prescribed by law in the interests of national security, public order and the protection of public health or morality, or for the purpose of securing due recognition and respect for the rights and freedoms of others, or of meeting the just requirements of the general welfare of a democratic society. For the purposes of this paragraph “law” includes regulations made under the law for the time being relating to public security.”

Therefore, it has to be noted that certain regulations may restrict the fundamental right as enacted in the constitution.

Be informed of the reason for his arrest

Looking deep in to the Article two separate points are noted. First is the arrest to be done with adherence to the due procedure of law. And the next “giving reasons of such arrest”.Petitioner in his petitioner buttresses the fact that he had not been given any reasons for such arrest.He states with confidence that the there was no offence that he had committed and that he was been informed of at the instance of arrest by the police officers.

In the case of AG v. Kanagaratnam [1950] 52 NLR 121, the judge stated “The person arrested must be informed of the reasons for his arrest at the time of the arrest” and went on to say that “Two further matters await consideration: firstly, the Petitioner was not served with the detention order and, secondly, the Petitioner was not informed of the reasons for the arrest and detention”,

yet again turning on to the emergency regulation and the effect of same to overshadow the fundamental rights in lieu of public security held the right is waived off at this instance. Yet in another case, SC/FR 689/2012 – R.P. Justin RajapkshaVs.PrasannaRathnayake IP of Homagama Police and 9 others the court accepted that the fundamental rights of the petitioner has been infringed by the respondents failure to give reasons for such arrest.

Period of detention

Article 13 (2) states that, “Every person held in custody, detained or otherwise deprived of personal liberty shall be brought before the judge ofthe nearest competent court according to procedure established by law and shall not be further held in custody, detained or deprived of personal liberty except upon and in terms of the order of such judge made in accordance with procedure established by law”

Also the criminal procedure cod Sec 37 specifies that person arrested should not be detained than twenty four hours. In this case the person was taken in to custody on 28th July 2018at around 4.30 Pm and had been produced before the magistrates courts at around 29th of July ,the following day. It seem according to the facts of the case that the police have not failed to exceed the detention period as prescribed by the law unlawfully.

Article 14 (1) (g)

Article 14 (1) (g) relates to the “the freedom to engage by himself or in association with others in any lawful occupation, profession, trade, business or enterprise:”

Was the business illegal?

Under the Excise Ordinance Chapter 52 of the Legislative Enactment and as empowered by the same, the Exicise department of Sri Lankan has the right to issue “License to tap, draw and manufacture fermented, unfermented sweet toddy.” (website of the excise dept.)

In that sense, Siril is authorized by law to tap toddy under a legal license issued by the department and the same is attached herewith in the annexures to this report. I seem that this is the stance in the most marginalized areas in the country where poor less educated people live, the executives arbitrarily tries to get bribes taking advantage of the people’s weaknesses.

InSunilSeneviratne V Shelton Gunasekera, 2012,S.C. F.R. 476,“the Petitioner had averred in his Petition that one of his children were studying in the advanced level class. Depriving the Petitioner, of electricity would be disruptive of his family life, hispersonal life and his business.” The court admitted the fact that the respondent had infringed the rights of the petitioner protected by the Article 14 (1) (g) of the constitution.

Award of Compensation

Article 126 (4) of the constitution read “The Supreme Court shall have power to grant such relief or make such directions as it may deem just and equitable in the circumstance in respect of any petition or reference referred to in paragraphs (2) and (3) of this Article or refer the matter back to the Court of Appeal if in its opinion there is no infringement of a fundamental right or language right.”

“The right to receive compensation for the violation of fundamental rights derives from the rights that were violated.” (Wolfson, Y., n.d.). As per this definition it seem that the compensation for fundamental violations are based of the pecuniary loss suffered, which is relatively close to the remedy that comes in the delictual liability.

In this case the Petitioner has been granted leave to proceed on the alleged infringement of several fundamental rights

Burden of proof

“As held in the case of Velmurugu,1981,1SLR 406, the degree of proof required in an allegation of violation of a fundamental right is the balance of probability.”

Discussion of the law as it operates in reality

Purpose of Fundamental right and its’ Origin

Fundamental rights also known to as inalienable rights of the human kind is a derivation from the natural law jurisprudence. The attempt here is not to devolve around the natural law jurisprudence but, to understand the purpose and the nature of fundamental rights natural law school sets great basement. Accordingly, this school of thought strongly asserts that there are certain rights inalienable from the human beings. Those right should be protected at any cost.

Right to liberty, equality, right to speech, right to occupation, freedom of faith and ect are such rights that need compulsory protection. Therefore, different jurisdictions have adopted to constitutionally protect these rights during the past decades.

“Natural Rights thus led to the formulation of Human Rights and the influence of Natural Rights can be found not only in the English Bill of Rights (1689), the French Declara­tion of Rights of Man (1789), the United States’ Bill of Rights (1791), the Universal Declaration of Human Rights (1948)., but also in the Part III of the Constitution of India which deals with Fundamental Rights.”(Introduction to the origin of fundamental rights, n.d.)

Following on that line it could be observed that many states including Sri Lanka had provided for the fundamental rights chapter. Chapter three of the Democratic Socialist Republic of Sri Lanka id devoted to protecting the fundamental rights in the like case.

“Fundamental rights jurisdiction in Sri Lanka has only a short history in our judicial system. A comprehensive Bill of Rights was not included in our 1947 Constitution.” (Bandaranayake, S.A., 2013). Yet again the constitution of 1972 included a chapter devoted for the fundamental rights section but in turn its’ enforceability was law. It is accepted that the, 1978 Constitution is the first constitution to contain explicit provisions with proper mechanism laid down for its enforcement through the Articles 17 & 126.

Necessity of the law

As the human rights are the inalienable rights its necessity is definitely not a matter of a doubt. Ninth amendment to the United States constitutions expresses that ‘ To prevent abuses that threaten the entire civilization, to create happiness for all people, and to prevent great unjustified suffering, all fundamental rights are granted to all people in every civilized society.”

It is with no doubt accepted the fact that fundamental rights are the most sought in a nations constitutional guarantees. Especially when it comes to violation of fundamental rights by executive action, if not for these constitutional guarantees the, the abuse of power and authority would never be stopped.

It seem through the history of Sri Lankan judicial decision, these provisions have helped in a great deal in reinstituting the balance. In Mohammed Faiz v. The Attorney General, “a ranger obtained relief from the Supreme Court not only against the police officers who violated his rights but also against two Members of Parliament and a Provincial Council member who had “instigated’ this violation;”

The most horrified episodes of the Sri Lankan history, JVP armed insurrection where people working in the government sector were killed and intimidated and the torture chamber Batalanda where youth were manslaughtered in a massive scale still teaches the lessons of necessitating the democratic rights for each and every individual.

Comparison of law across various jurisdictions

International conventions

Universal Declaration of Human Rights (UDHR) by the UN in 1948,is the first charter to lay the foundation to the modern day comprehensive human rights code. The UDHR, first documented human rights declaration provides for 30 Article in regards to the protection of fundamental rights.

Few main Articles are as follows,

Article 3 – Everyone has the right to life, liberty and security of person, Article 4 – No one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all their forms. Article 5 – No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.

Article 7 – All are equal before the law, Article 9 – No one shall be subjected to arbitrary arrest, detention or exile, Article 10 – Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.

Article 12 – No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Article 13 – Everyone has the right to freedom of movement and residence within the borders of each state.

Article 17 – (1) Everyone has the right to own property alone as well as in association with others. Article 23 – (1) Everyone has the right to work, to free choice of employment, to just and favorable conditions of work and to protection against unemployment. Article 26 – Everyone has the right to education. Education shall be free,

When comparing the fundamental rights guaranteed under the Sri Lankan constitution and the UDHR corresponding provisions several points could be noted.

UDHR provides for a certain rights which are similar in nature to the corresponding Sri Lankan fundamental rights. Freedom from torture, equality, freedom from arbitrary arrest right to peaceful assembly, freedom for religion and culture are such rights. Article 23 of the UDHR provides that everyone has the right to work and to make his standards of living.

In contrast it is also visible that the certain article enshrines in the UDHR are not identically corresponds to the Sri Lankan rights. For better clarification Article 12 of UDHR enumerates that, Article 12 – No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation.Laxities of such rights in the Sri Lankan law provided the peace officers of uncontrollable rights for search, without legal warrants in the contextual cases. And many such evidence including the Sirl’s as per this subject case has happened throughout history of Sri Lankan Law.

Furthermore even the UDHR buttresses that the “education shall be free’, it is not the real situation in most of the countries today. Eventhough, Sri Lankan throughout a longer period of time is in the process of providing free education for its citizens, it has never been incorporated under the fundamental rights.

In q R Haputhantrige& Others v. Secretary, Ministry of Education & Others (2007 FR) 10-13/2007 (Grade One Admission case) (2007) 1 Sri LR 101. An important judgment in the field of education was delivered by the Supreme Court of Sri Lanka in 2007. In the absence of the right to education as a fundamental right in our present Constitution, the Supreme Court applied the fundamental right to equality (Article 12 of the Constitution) as discussed above to prove the infringement of the child’s right to education by the education authorities of the State.” (De Silva, S.S.M., 2017)

Therefore the judicial activism to some extent could be said to have extended the fundamental provisions of Sri Lanka. Besides there are other numerous treaties in operation today.The International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR) are the two of the main international treaties that relates to protection of fundamental rights today.

Indian constitutional guarantees on fundamental rights

Indian constitution and the Indian judicial activism in the areas of fundamental rights are said to be of significant importance and value among the other jurisdictions of the world.

“Human rights in the Indian Constitution are divided into two separate parts. Part III of the constitution houses the ‘Fundamental Rights’, which include the right to life, the right to equality, the right to free speech and expression, the right to freedom of movement, the right to freedom of religion, which in conventional human rights language may be termed as civil and political rights. Part IV of the constitution contains the Directive Principles of State Policy (DPSPs), which include all the social, economic and cultural rights, such as the right to education, the right to livelihood, the right to health and housing.” (Kothari, 2004)

”A difference ought to be made out here between the provisions of the Indian Constitution and the American Constitution. Under the latter, it was never intended that the judicial interpretation given to the constitution be binding upon the law of the land while every judgment of the Supreme Court of India has binding authority.” (The importance and significance of Fundamental Rights, n.d.)

The adequacy of the procedure followed

A research published by the International Commission of Jurists claims that, “Sri Lanka’s investigative and prosecutorial system is seriously flawed. Lack of independent investigations and a hostile prosecutorial and overarching legal system has led to victims being penalized at all stages of the process, from the very first instance of lodging a first information in the police station to the protracted and intensely adversarial nature of legal proceedings, resulting in many victims and witnesses being coerced and compelled to change their testimony, again reinforcing the cycle of impunity that prevails.”

On the other hand, the procedure followed in gathering evidence and arriving at sensible judgments, too are questionable depending on the judgments given in the few recent cases. In one case, Deshapriya v. Weerakoon, a police officer was convicted for torture of a person, even though there was no such evidence to prove his presence at the crime scene.

Practical constraints in enforcing the law

Access to courts

One of the inherent limitations when it comes to the enforcement of fundamental rights in Sri Lankan is the lesser accessibility to the courts exercisingfundamental jurisdictions. The article 126 (1) of the constitution states, “The Supreme Court shall have sole and exclusive jurisdiction to hear and determine any question relating to the infringement or imminent infringement by executive or administrative action of any fundamental right or language right declared and recognized by Chapter III or Chapter IV.”

This provision in the constitution seems to have created lot of disadvantage to the citizens of Sri Lankan throughout the past few years. An article published by the daily News on March 2016 asserts the importance of such close by jurisdiction to make people avail of the existing laws. The articles goes on to say, “The protection of the laws, especially when they concern fundamental rights and public interest matters, should be brought closer to the people. A concern for these matters should also pervade a maximum of the judicial structures.”It also remarks on the practical limitations of such a process of “bringing fundamental rights to the doorstep on individuals” and sates “However, where very weighty and sensitive matters are concerned and affect the entire nation and untoward pressures can be broad to bear upon the lower judiciary, the exclusive jurisdiction must be retained by the Supreme Court,” (De Silva, S,S.,2016)

As a solution Professor S. SarathMathilal De Silva suggest that the, Supreme court together with the High courts should be divested with the power deal with the matters concerning the fundamental rights relating matters, “except in the areas where (i) the respondents are government Ministers (ii) the legality of laws and regulations are challenged (iii) government policy decisions are involved and (iv) the respondents are members of the judiciary.”

Financial Burden, Service fees, consultant fees costs of filing and the transportation costs,

Lack of financialaid and facilities seem one of the biggest challenge faced by the poor marginalized crowd in Sri Lanka, when it comes to initiating a fundamental rights litigation. Article 126 (2) states that, “Where any person alleges that any such fundamental right or language right relating to such person has been infringed or is about to be infringed by executive or administrative action, he may himself or by an attorney-at-law on his behalf, within one month thereof, in accordance with such rules of court as may be in force, apply to the Supreme Court by way of petition in writing addressed to such Court praying for relief or redress in respect of such infringement.

Such application may be proceeded with only with leave to proceed first had and obtained from the Supreme Court, which leave may be granted or refused, as the case may be, by not less than two judges.”

Most of the fundamental rights litigations need an expert consultant to handle the came. Case become obvious as the purpose of law is to derive the best results. The situation would be fine and the justifications would be reasonable as long as the fundamental rights violations involves victims with reasonable financial background.

Looking beyond the cases like “Siril Kumara” whose profession and sole income is through tapping toddy, with reasonable justifications that he belongs in the lower margin of the incomer earning category according to the statistics for Sri Lanka, it is highly unreasonable to expect such person to bear all the costs of litigation.

If he were to bear these costs of litigation, he would have been in a better position if he had paid off the Rs 5,000 to the police officers as bribe.

Luckily in this case until MrGamunu, who was a voluntary counselor to this case, assisted the case free of charge. Yet again it has to be buttressed that, it wont be the case in all the legal matters in fron of the courts today.

With these justifications it follows that lack of financial support would still remain a substantial hindrance for the enforcement of fundamental rights violation actions.

Legal Illiteracy

Prima facie it seem that people who are not educate enough, to initiate a fundamental litigation case in the courts themselves. In that sense they need the assistance of an attorney at law, which in turn would be an unbearable financial burden for them.

Most of the times people from marginalized areas lacks education on the rights enshrined in the supreme constitution of the country. Sometimes it evident that some people do not know if such rights exists even.

On the other hand some may be aware of the existence of such rights then again lacks the education and the knowledge on the procedure to access the legal authorities and the tribunals. Even though some might have the awareness on such procedures to be followed, it would be then considered as an unnecessary burden and a complicated process by some individuals. Long distance travel and waste of time alongside busy lifestyles could be other reasons which adds fuel in discouraging the fundamental rights litigations by the people.

In here with regards to the “Siril’s case”, the petitioner according to his affidavit had been subjected to illegal harassment, arbitrary arrest and the unlawful demands for bribery by the police officers from time to time even before the subject date of this litigation which is 28th of July 2017. But neither of these instances the petitioner was trying to get legal assistance. In my opinions these are the real world crisis that present in the world today.

In Sri Lanka even though some guidance would be available, free of charge it seem majority of the lacks attention on the same. One such remedy which is present in Sri Lanka today is the Legal Aid Commission of Sri Lanka (LAC).

“Legal Aid Commission of Sri Lanka (LAC) is the foremost amongst the various other institutions and organizations that cater to this important requirement, mainly due to its sustainability and stability. Legal Aid Commission was established by the Act No 27 of 1978 and at present it has 76 Centres Island wide.” (LAC website). Its’ vision is to, ” To create a society where all deserving Sri Lankans irrespective of their economic or social status, gender, caste, creed or nationality or the disabled have equal access to justice.”One of its’ main purposes reads, “To appear in Supreme Court in cases of rights violations via the Human Rights Bureau of the Commission.”(LAC website).

It seem such influence from the legal authorities are very useful for third world countries like Sri Lankan where higher degree corruption doubled with power gaps/ differences are present. But also would need to say that such actions and procedures are not adequate enough to dispense justice to Island wide.

Ignorance

Ignorance of fundamental rights violation are another major restriction for the better enforcement of fundamental rights.

Fear of power and Authority

In the affidavit of Siril Kumara, the subject petitioner in this case, he states that, “on 30th June 2016, (long before the petitioned harassment and the fundamental rights violation”), official SI Gunasena along with several other officials had visited the house of Siril Kumara and demanded that he plead guilty of possessing illicit liquor. Siril Kumara having frustrated since a long period of time had refused to plead guilty.

Then the said crew had assaulted the petitioner, thereafter arrested and produced before the magistrate court of Ruwanwella. (The camera images of the assault done to the petitioner, Siril Kumara is attached herewith in the annexures). The medical of Provincial General Hospital of Ratnapura was then assigned to produce a report on the assault by the Kuruwita Prison authorities and the officer had indicated that the injuries that suffered were consistent with the assault. He states that the said case of assault was not produced before the Lordships’ court in fear of the reprisals.”

This stance the current situation of fundamental rights violation scenes in most of the areas of the country today. Abuse of power and corruption is vividly observed in these ares.

Sometimes the judges had been vigilant about these practical restraints for the victims through out the history of the judicial process. So, they have used rules bent, to punish the wrong doers. In the case of Sudath Silva VsKodithuwakku 1987 2 SLR 119, Justice Atukorale has stated that “the failure of the Petitioner to complain to the Magistrate before whom he is produced must be viewed and judged against the backdrop of his being at that time, held in police custody with no access to any form of legal representation.”

In another case, ‘Respondent OIC has pointed out that the Petitioner had not complained of any torture to the Magistrate at the time he was produced before the Magistrate’’. ( ChamindaSampath Vs. SI Salwthura,(2010), SC/FR_244)

Judge hereinafter stated in this case that, “Nobody who was tortured at a police station would ever be not scared to complain to the judge at such a time when he was at the mercy of the judge and the police to get bail.

If any human being gets tortured by the police at any time, the victim by that time has lost confidence of the whole system of justice in the country. Such a person would not have any other feeling than to be wanting to live by getting away from the custody of the police for the time being. He would not be in his proper senses as to think what could be done next.

He would have suffered mentally and physically inside a cell, without anybody to give him food or drink or medicine or to save him from the torture that he was undergoing for the period he was within the Police Station in the recent past, for whatever number of hours or days he was tortured.” ( ChamindaSampath Vs. SI Salwthura,(2010), SC/FR_244)

Therefore it seem that the fear of further punishment by the abusive and corruptive executive poses a substantial threat to the exercise of fundamental rights in Sri Lanka.

Locus standi

Dictionary define locus standi as ” the right or capacity to bring an action or to appear in a court”. If theis rule of locus standi would be so rigid per se, there will be a more reluctance from the community to bring up fundamental rights actions in fron of the courts.

The tendency in the past seems to have been to limit locus standi to persons who had a particular interest or grievance of his own over and above the rest of the community. But in more recent years, there is in England a veering away from that view and the concept of locus standi seems to have been progressively widened to extend standing, if I may use the words of Lord Denning, to almost ‘anyone coming to court to get the law declared and enforced’. (Law net,1960)

In KottabaduDurageSriyani Silva v ChandkaIddamalgoda, standing was given under Article 126 to the wife of the deceased. And there are certain other several cases where public litigation cases were allowed.

In Bulankulama the Supreme Court observed:“On the question of standing, in my view, the petitioners, as individual citizens, have a Constitutional right given by Article 17 read with Articles 12 and 4 and Article 126 to be before this Court. They are not disqualified because it so happens that their rights are linked to the collective rights of the citizenry of Sri Lanka – rights they share with the people of Sri Lanka.”

Therefore it seems Sri Lanka is trying to take a broader view on this matter.

Adequacy of the law for social justice

One of the foremost importance when it comes to fundamental rights is the equality, and non-discrimination on the grounds of inherent human differentiation such as race, gender, colour, sex and the religion. Even though, most of the jurisdictions provide for “Equality” under the colourable interpretations there still seem a huge gap in the law regarding the same aspect.

In an article published by the journal “Independent pulse”, it goes on to say that, “79 states criminalise people on the basis of their sexuality or gender identity. Lesbian, gay, bisexual and transgender persons may be imprisoned or sentenced to death by the legal systems that are required but fail to protect their human rights.”

Sri Lankan constitution too provides for the “right to equality” under the Article 12(1) of the constitution yet again the homosexual relationship are penalized under the provision of the penal code.

Unlike, Article 16 of the UDHR provides that,(2) Marriage shall be entered into only with the free and full consent of the intending spouses. This means the marriage and relationships are inalienable rights of the humans. Especially when it comes to UDHR it provide in its’ Article 13 that, ““Nothing in this Declaration may be interpreted as implying for any State, group or person any right to engage in any activity or to perform any act aimed at the destruction of any of the rights and freedoms set forth herein.”. It illustrates that the full circle has to be draws with regard to exercise of once fundamental freedom so as not to destruct the freedom rights of such other persons.

Economic and Social Rights

Fundamental rights or the human rights are classified on different bases and different aliens of arguments most of the times. Yet the most accepted around the world are two categories. They are, civil and political rights, and social rights. “Civil rights generally restrict the powers of the government in respect of actions affecting the individual and his or her autonomy (civil rights) and confer an opportunity upon people to contribute to the determination of laws and participate in government (political rights). These are abbreviated to ESC rights, namely Economic, Social and Civil Political rights.

Social rights require the governments to act in a positive, interventionist manner so as to create the necessary conditions for human life and development.” (Classification of human rights, n.d.) Prima facie it could be differentiated on the basis of passive rights vs active rights. Sri Lanka, the “Constitution of 1978 does not recognize these as rights per se but offer them as guidelines for policy making under the heading of directive principles of state policy.” (Fernando, N., 2017).

Article 27 (10 (c), states “the realization by all citizens of an adequate standard of living for themselves and their families, including adequate food, clothing and housing, the continuous improvement of living conditions and the full enjoyment of leisure and social and cultural opportunities ;”

Yet again these directive principles of state are not enforceable rights as per the present constitution. The Article 29 of the constitution iterates, ‘29. “The provisions of this Chapter do not confer or impose legal rights or obligations and are not enforceable in any court or tribunal. No question of inconsistency with such provisions shall be raised in any court or tribunal”.

In the matter of Siril’s case before the courts, if the fundamental rights were to be supported with the directive principles of the state his case may be stand in a better position than the current situation per say.

Some experts still deny the necessity social and economic rights. They argue,

  • Economic and social rights are ambiguous and cannot give rise to concrete legal claims.
  • Economic and social rights are not rights in the same way civil and political rights are. They should influence policy but are not legally enforceable rights and hence cannot lay a claimtoconstitutional recognition.
  • Social and economic matters are best dealt with by the legislature and through democratic contestation. It would violate the separation of powers doctrine
  • Judges have no expertise to decide on economic and social issues.

(Centre for Policy Alternatives (CPA) | 2016)

In a recent forum held by the Bar Association of Sri Lanka on the 10th January 2017 organized a public discussion it was argued whether the social and economic rights are a necessity in the contextual Sri Lankan environment. It seem that the supporters for the free market economy denied usefulness of such laws.

One added in the conference that “A small scale entrepreneur had identified that the husks of areconuts in a large estate can be used as a substitute for plastics and went to court over the right to purchase the husks which are usually discarded as a residue product. His Right to Business was guaranteed by the free market and not by the State enforcing social and economic rights”. (Fernando, N., 2017).

Yet again one must should not forget the fact that, “These are the major flaws of the open-economy under the present government who are hell-bent on a neo-liberal agenda of development forgetting that a majority the country’s citizenry are poor and vulnerable with limited access to resources.” (Fernando, N., 2017).

Social Order and the law

Social implications of a law is the very special reason for which the law is moulded in to. “The Purpose of law in society is to maintain social control, public order, and to outline what the government can and cannot do.” (Bjorake., A, 2013). Therefore, the law’s focus is the society itself.

But in contrast the the fundamental rights are a derivation of individual liberty and freedom rights. What states seeks to protect through its’ third chapter is the individual rights and not the public rights. Now there seem a dilemma between the fundamental rights and the social implications of such law. There is argument as for “which prevail” in instance of a conflict.

In a hypothetical situation where a suspect for conspiracy is detained not with accordance to the procedure established by law is a prima facie violation of the Article 13, infringement of a fundamental right. Yet again the, the judgment for such matter would possibly vary if the country is under a war situation and under the emergency regulations.

There comes up the challenge before the courts as to weigh the implications of such act with accordance to the social implications.

Clearly as addressed by the Articles 15 & 16 are the restrictions on fundamental rights in order to avoid such complications.

Article 15 (1) states “(1) The exercise and operation of the fundamental rights declared and recognized by Articles 13(5) and 13(6) shall be subject only to such restrictions as may be prescribed by law in the interests of national security. For the purposes of this paragraph “law” includes regulations made under the law for the time being relating to public security.”

And along with are other provisions to ensure peaceful and better governance through social order by imposing restrictions to maintain religious harmony, defamation, contempt of court national and public security.

Article 16

Article 16 expounds,”(1) All existing written law and unwritten law shall be valid and operative notwithstanding any inconsistency with the preceding provisions of this Chapter’

Sometimes this connotes the meaning that this is prima facie violations of the individual freedoms. As there are number of legislations, statues and various bills drafted during the colonial post colonial periods of Sri Lanka it seem this provision in the constitution is too restrictive of the fundamental rights guaranteed by the constitution.

De Silva, S.S.M. on daily news explains the conditional guarantee imposed on the fundamental rights to be a prima facie infringement of the fundamental rights.

Fundamental duties

Fundamental duties are enshrine in to the constitution of Sri Lanka and the Article 28 reads, “The exercise and enjoyment of rights and freedoms are inseparable from the performance of duties and obligations and accordingly it is the duty of every person in Sri Lanka –“

And the proviso (e), to the same Article reads, “to respect the rights and freedoms of others,”, Yet again in a situation similar to Siril’s case this constitutional provision cannot be brought forward as it is restricted by the Article 29, the unenforceability of the directive principles of the sate.

Similarly many other constitutions around the world has provided for the fundamental duties. Yet, “The, constitution of Bangladesh does not contain any list of fundamental duties. It means our fundamental rights are not conditional on the performance of fundamental duties. This non-recognition of duties create problem in the society to understand the basic difference between rights and responsibilities. As a result, we see that people often claim their rights but do not bother about their corresponding duties.” (Rahman, K., 2017).

Review of the documents used in litigation

Documents Review

  1. Annexure (X-1) – Copy of the Toddy License

In this litigation, the issues devolved around the occupation of Sirl as a toddy tapper. The fundamental rights of the petitioner were said to have violated by the executive action when they were sanctioning the occupation of “Siril” on various grounds. If the Siril has a proper proof of a license for tapping, distilling and sale of toddy, legaly police won’t be able action against Siril, who was innocently involved in the process of tapping toddy.

  1. Annexure (X-2) – Copies of fines

The portioner in his affidavit proclaims that the police official since a long period of time used to harass the toddy tappers in the areas demanding for unlawful bribes. The fine documents attached herewith are clear evidence to support the stance of the petitioners here.

  1. Annexure (X-3,4,5,8) – Copies of the Court Case 63629,69824,63823& 70092

Copies of the court cases produced herewith are proof for the prosecution conducted by the police time to time. It signals the arbitrary arrest conducted by the police officials, ultra virus to the established procedure of law.

  1. Annexure (X-6) -Photos of the assault

Photographs are one of the main evidence in this case. The photographs attached clearly visualize the scene occurred with the police officers on July 28th 2017. It is clear proof that the police officers had assaulted the main petitioner in his premises in a cruel, degrading manner.

  1. Annexure (X-7) -Affidavit of the wife

Affidavit of the wife is important in the role of the witness before the courts.

  1. Annexure (X-9) – Copies of the Medico – Legal Examination Forms

“The preparation of a medico-legal report is an exercise in communication between the doctors and the legal system.”The most important feature of a proper medical report is the presentation of true picture to the respective parties. Informed concept is one of the basic elements of a proper medical report.

Yet when examining the affidavit presented by all the three petitioners, the report presented by the Medical Officer of the Kithulgala District seem to be a falsified report. In such instances law should be attentive in Order to prevent Collison by the executives.

The reports provided by the Kithulgala medical officer and the Ruwanwella base hospital officer seem contradictory upon the same injuries suffered by the petitioners.

References

http://www.lincoln.edu/criminaljustice/hr/Classification.htm

  • De Silva, S.S.M. (2016) ,New Constitution, How to make It a Path to Fundamental Rights, Sri Lanka Brief, Daily News

http://srilankabrief.org/2016/03/new-constitution-how-to-make-it-a-path-to-fundamental-rights/

  • Diffen, (n.d.), Procedural Law vs. Substantive Law

Available at https://www.diffen.com/difference/Procedural_Law_vs_Substantive_Law

http://www.lk.undp.org/content/srilanka/en/home/Blog/2017/1/25/Should-economic-and-social-rights-be-included-in-the-new-Sri-Lankan-Constitution-.html

http://shodhganga.inflibnet.ac.in/bitstream/10603/68264/7/07_chapter%201.pdf

  • Legal system of Sri Lanka, 2015, Available at

https://www.slideshare.net/rrgsb/legal-system-of-sri-lanaka

  • Rahman, K., (2017), Necessity of “Fundamental Duties”, Available at,

http://daily-sun.com/printversion/details/228152/Necessity-of-%E2%80%9CFundamental-Duties%E2%80%9D

  • CPA Working Papers on Constitutional Reform| No. 7, September 2016

https://www.diffen.com/difference/Procedural_Law_vs_Substantive_Law

  • Law Shelf, (n.d.), Substantive Due Process – Fundamental Rights :A Project of National Paralegal College. Available at

https://lawshelf.com/courseware/entry/substantive-due-process-fundamental-rights

  • Legal system of Sri Lanka, 2015, Available at

https://www.slideshare.net/rrgsb/legal-system-of-sri-lanaka

  • Peers, S. &Ward, A., (2004), The European Union Charter of Fundamental Rights: Volume 2 of Essays in European Law, Hart Publishing : UK.ISBN 184113449X, 9781841134499
  • Procedure Established by Law vs Due Process of Law, (2017). Available athttps://www.clearias.com/procedure-established-by-law-vs-due-process-of-law/
  • Seneviratne, T., (2011), Police power to search premises without search warrant restricted, Sunday November 06, 2011 Sunday November 06, 2011
  • Wolfson, Y., n.d , The Right to Compensation for the Violation of Human Rights
  1. Annexure (2)