This month’s issue of the Review focuses on crucial developments, relating to the protection of the rights of life and liberty of Sri Lankan citizens.

In Kottabadu Durage Sriyani Silva vs OIC, Paiyagala Police and Others,(SC(FR) 471/2000, SCM 8/8/2003), the Supreme Court re-evaluates what had hitherto amounted to one of the most startlingly illogical propositions in relation to the manner in which an ordinary citizen in this country could exercise his or her rights under the Constitution.

If Citizen Perera is taken into a police station, for example, and severely tortured, he would have immediate recourse to Article 11 of the Constitution and would, in all probability, be granted substantial compensation.

However, if this same Citizen Perera had been so badly tortured that he died in the course of such treatment, this same Constitution, on the face of it, washed its hands of the affair with great – if not highly problematic- promptitude.

This was due to the fact that the Constitution gives the right to relief only to a person alleging the infringement of any right ‘relating to such person’, with only that person or an attorney at law on his behalf being able to petition court (Article 126(2)).

In addition, its provisions do not specify a right to life, unlike for instance, the far older comparable provisions of the Indian Constitution, thus shutting out, to all intents and purposes, rights applications by individuals on behalf of those who die in the custody of the State.

The August 2003 judgement of the Supreme Court recognises the right to life as implicit in specific rights provisions in the Constitution. In so doing, the Court infers necessarily a positive right from the negative, as contained particularly in the constitutional right not to be punished with death or imprisonment except by court order (Article 13(4)).

In other words, and put very simply, this constitutional article means that a person has a right to live unless a court orders otherwise. The Court reasoned that, in turn, a person has a right to life - at least in the sense of mere existence as distinct from the quality of life - which he can be deprived of only under court order.
Similarly, Article 11 guarantees freedom from torture and from cruel and inhuman treatment or punishment. Consequently, to unlawfully 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. The Court uses these two articles to recognise a right not to be deprived of life - by way of punishment or otherwise- and by necessary implication, a right to life.

From this reasoning, the Court proceeds to hold that the next-of-kin, intestate heirs or dependants would be able to sue the wrongdoers for the unlawful death so caused. In this sense, the court recognises the evident anomaly in the alternative that gives redress for the lesser infringement (imprisonment) but not for the greater (death).

The word ‘person’ in Article 126(2) is interpreted broadly in the context of the express duty imposed on it by Article 4(d) of the Constitution to respect, secure and advance fundamental rights as well as Article 118(b) conferring exclusive jurisdiction upon the Supreme Court to protect fundamental rights.

In addition, Article 17, (entitling a person to make an application to court regarding an infringement), is reiterated to be an independent right. Consequently, as much as any person would be entitled to relief for being temporarily prevented from exercising this right, similar redress would be given if he was permanently so prevented.

Judicial interpretation in this regard, is buttressed by international obligations and standards, particularly under the Convention Against Torture and Other Cruel Inhuman or Degrading Treatment, to which Convention, Sri Lanka is a party.

The Court accordingly granted relief to the wife of an army deserter, (claiming compensation on behalf of herself and her minor child), who had been lawfully arrested by the police but severely tortured thereafter, as a result of which he died eight days later.

The OIC of the police station was made liable, not for direct involvement in the acts of torture but for breach of his duty to take all reasonable steps to ensure that the victim was treated humanely and in accordance with the law.

The Review publishes also the Views of the Human Rights Committee under the Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR) in regard to a case brought by a Sri Lankan father following the torture and disappearance of his son and supplementary documents relating to the application.

The Committee finds the Sri Lankan State responsible for J. Thevaraja Sarma’s disappearance and to have violated his right (under ICCPR Article 7) not to be subjected to torture or ill treatment and his right (under ICCPR Article 9) to liberty and security. The Committee also finds a violation of Article 7 in respect of the pain and anguish undergone by the victim’s family.

The State is meanwhile called upon to carry out an effective and through investigation into the victim’s disappearance and ultimate fate, to bring to justice the perpetrators and to provide adequate compensation to his family.

Kishali Pinto-Jayawardena