17: FUNDAMENTAL RIGHTS

1. “Religion is an organized belief and such beliefs should not be placed within the reach of any positive laws. A belief for its own
survival may depend on particular observations prescribed in the name of religion. Hence, when it comes to constitutional
guarantees, there is no need to make a distinction between the two.”
Comment on the above statement in light of Article 10 of the 1978 Constitution of Sri Lanka. Support your answer with case law
authority.

2. “The judicial approach to Article 12 of the Constitution has commendably helped to develop jurisprudence in the sphere of equality.
However, it is not an exhaustible journey for the judiciary in a plural society.”
Discuss. Support your answer with case law authorities.

3. What do you understand by executive or administrative actions in the context of the Constitutional provisions of Sri Lanka?
Discuss with the support of decided cases.

4. “While Article 10 of the 1978 Constitution guarantees an absolute freedom, the actual practice of such freedom is subject to
certain limitations. In a plural society such limitations warrant a careful and rational interpretation.”
Discuss. Support your answer with case law authorities.

5. “In order to prove violation of the equality clause in the 1978 Constitution, one will have to satisfy the court about two things: (a)
that s/he has been treated differently from others, (b) that s/he has been differently treated from persons similarly situated without
any reasonable basis.”
Critically analyse the above statement in light of the decided cases.
OR
Discuss the development of law in Sri Lanka in relation to ‘sue’ as set out in Article 126 of the Constitution.

6. “Article 10 of the 1978 Constitution not only declared the right to which every person is entitled, but also defined that right to
include the freedom to have and adopt a religion or belief of a person’s choice.”
Critically examine the above statement analyzing the relevant provisions of the 1978 Constitution giving attention to the decided
cases.
7. “Equality before the law means that among equals the law should be equal and it should be equally administered—that like should
be treated alike. This article applies both to substantive law as well as procedural law.”
Discuss the above statement giving reference to the relevant provisions of the 1978 Constitution and decided cases.

8. “Every person is entitled to the freedom to have or adopt a religion or belief of his choice. Every person has the right to manifest his
religion or belief in worship, observance, practice and teaching, the right to convert another person to his religion and this right
cannot be restricted.”
Critically examine the above statement analyzing the relevant provisions of the 1978 Constitution giving attention to decided
cases.

9. “No person shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. It is an absolute fundamental
right subject to no restrictions or limitations whatsoever. The Supreme Court has in several decisions expanded the scope of this
protection.”
Discuss the above statement giving reference to the provisions of the 1978 Constitution and decided cases.

10.(i) Describe the Constitutional provisions contained in Chapter 3 of the 1978 Constitution to assure the fundamental right to the
people.
(ii) Describe the mechanism contained in the Constitution against FR violations enforceable by the Supreme Court of Sri Lanka.
Give your answer with reference to decided cases.

[Link] one of these two statements and discuss the relevant fundamental rights provisions enshrined in the Constitution:

(a) “...Article 13(2) requires that an arrested person be brought before the judge of the nearest competent court. How he should be
brought before the judge can be laid down by ordinary law, but the requirements that he be brought before a judge, and that it is not
any judge but the judge of the nearest competent court, cannot be varied or dispensed with. Those are not matters of discretion, but
preconditions which go to jurisdiction..” — Marc Fernando J., Weerawansa v. Attorney General and Others (2000) 1 SLR 144

(b) “...Exceptions to Article 14(1)(a) must be narrowly and strictly construed for the reason that the freedom of speech constitutes one
of the essential foundations of a democratic society, which as we have seen, the Constitution in no uncertain terms declares Sri Lanka
to be...” — Amarasinghe J., Abeysekara v. Ariya Rubasinghe, Competent Authority and Others (2000) 1 SLR 314
12. Discuss with reference to decided cases the approach of the Supreme Court to “reasonable classification” in the context of Article
12 of the Constitution.

13. Describe the provisions of the Constitution relating to language rights.

14. “Issuing a warrant is a judicial act involving the liberty of an individual and no warrant of arrest should be lightly issued by a
Magistrate simply because a prosecutor or investigator thinks it necessary. It must be issued as the law requires, and when the
Magistrate is satisfied that he should do so on the evidence taken before him on oath.” — Deeraratne J. in Mahanama Tilekaratne v.
Bandula Wickramasinghe and Others (1991) 1 SLR 382
Discuss the above statement with reference to Article 13 of the Constitution and decided cases.

15. Write a note on the development of the law in Sri Lanka in relation to the right to sue as set out in Article 126 of the Constitution.

16. “Article 13 of the Constitution guarantees the right against arbitrary arrest and the protection of not being arrested on mere
suspicion.”
Explain the above statement with reference to Article 13(1) and 13(2) of the Constitution and decided cases.

17. “Every citizen is entitled to freedom of expression including publication. This freedom can be exercised in different ways. This
fundamental right cannot be restricted in any manner.”
Critically examine this statement with reference to decided cases.

18. Write a note on the right against torture.

19. (a) “Article 13 of the Constitution expressly guarantees the right against unlawful arrest and deprivation of personal liberty.
Arresting a person on a mere suspicion would amount to a violation of such right.”
Explain the above statement with reference to decided case law.
(b) Explain the meaning of the phrase “Procedure established by law” as set out in Article 13 of the Constitution.

20. “The Judiciary of Sri Lanka has made immense contribution towards the protection of fundamental rights and affording access to
justice by adopting liberalized approaches.”
Do you agree with this statement? Support your answer with reference to the provisions of the Constitution and decided cases.
21. Write a note on language rights as guaranteed by Chapter IV of the Constitution.

22. Explain the provisions in the 1978 Constitution of Sri Lanka that guarantee the freedom of ‘thought, conscience and religion’.
[Q2; Apr 2010; 12½ marks]

23. “Article 14 of the Constitution deals with those great and basic rights which are recognized and guaranteed as the natural rights
inherent in the status of a free country.” — Joseph Perera v. AG (1992) 1 SLR 199
Comment.

Rights become fundamental when they are enshrined in a Constitution – and when they are so incorporated they can be altered only
in the special manner applicable to constitutional amendments. By the Declaration of the Rights of Man, France became the first
country to provide constitutional recognition to human rights. This was followed by the United States, the Weimar Constitution of
1919 in Germany, the Irish Constitutions of 1922 and 1936, Switzerland, Japan and most countries of the Commonwealth.

Fundamental rights have been referred to as ‘the conscience of the Constitution’ or the ‘soul of the Constitution’ by V.D. Mahajan. In
the famous case of Maneka Gandhi v Union of India, Justice Bhagwati stated,

‘Fundamental Rights represent the basic values cherished by the People of India since the Vedic times and they are calculated to
protect the dignity of the individual and create conditions in which every human being can develop his personality to the fullest
extent. They weave a pattern of guarantee on the basic structure of human rights and impose negative obligations on the State not
to encroach on individual liberty in its various dimensions.’

FR in an international sense

The most famous political movements have been preoccupied with the realization of human rights – such as the revolutions across
the world, trade union movements, anti-colonialist freedom fights etc. There is a strong correlation between the realization of
human rights and that of human dignity, whereby man can be the best version of himself.

The theory of natural rights is based on that of natural law – where humans have ‘inherent’ or ‘natural’ rights which are immutable
and eternal. These rights accord with nature and reason. Ordinary human laws must comply to these natural laws or they are not
laws at all.
UDHR- The Universal Declaration of Human Rights

one of the first instruments which laid out these rights, and is a result of the horrific World War II that ravaged Europe and the rest of
the world.

 The Preamble: fundamental human rights, the dignity and worth of the human being and in the equal rights of men and
women. It is a common standard for all peoples and nations.
 Articles 3 to 21 deal with civil and political rights whereas
 Articles 22 to 27 cover economic, social and cultural rights.
 Article 28: Duties
 Article 29: Legitimate restrictions as may be determined by law for the purpose of securing respect and freedom of others,
public morality, order and security

ICCPR- The International Covenant of Civil and Political Rights

Emphasized civil and political rights. i.e. First generational rights

Sri Lanka has ratified.

ICESCR- International Covenant on economic, social and Cultural Rights

Emphasized economic, social and cultural rights, i.e. Second generational rights.

Sri Lanka has ratified.

Operational Protocol to the Covenant on Civil and Political Rights

Empowers the HRC to receive communications from individuals claiming violations, once all domestic remedies are exhausted
(complementarity principle0

Sri Lanka has ratified.

European Convention of Human Rights

Covenant for Europeans in addition to the Commission and court of human rights for investigations against member states if an
allegation of a violation occurs.

The Local history of FR and its scope

1947

The Independence Constitution of Ceylon (Soulbury Constitution) did not embody a Bill of Fundamental rights. The nearest it came
to one was through Section 29 of the constitution.

Section 29(2) provided that no law passed by parliament shall, for instance, “prohibit or restrict the free exercise of any religion”, or
“make persons of any community or religion liable to disabilities or restrictions to which persons of other communities or religions
are not made liable.” This section which had been designed to protect the interests of minority communities, failed to protect
individuals against discrimination. This is seen in the case of Mudanayake v Sivanganasundaram.

1972

The first Republican Constitution (1972) enshrined a number of fundamental rights in section 18(1), all of which were to be operative
within certain confines or limitations stated in section 18(2) which applied to all those rights equally.

There was no enforcement provision to these fundamental rights and thus were only decorational.

under the 1972 Constitution, article 18(2) laid out permissible restrictions. Such restrictions were subject to restrictions as the law
prescribed in the interests of ‘national unity and integrity, national security, national economy public safety, public order, the
protection of public health and or morals or the protection of the rights and freedoms of others, or giving effect to the Principles of
State Policy,’

1978

The present constitution (1978) has a separate chapter on fundamental rights (Chapter VI).
Under the 1978 Constitution, Fundamental Rights are declared in Chapter III of the Constitution and the Directive Principles of State
Policy are declared in Chapter VI. The latter guide the Parliament, President and the Cabinet in the enactment of laws and
governance of Sri Lanka but unlike Fundamental Rights they are not justiciable.

It was recognized by the drafters of the 1978 Constitution, that there were many restrictions on the 1972 Constitution’s fundamental
rights chapter. The Report of the National State Assembly that framed the 1978 Constitution stated:

‘Three major criticisms of the Chapter on Fundamental Rights contained in the 1972 Constitution were that that the rights
recognized were limited in scope, that they were subject to restrictions which were so wide as almost to nullify the grant of
fundamental rights, and that their enforcement was not guaranteed in the Constitution.

Chapter III of the Draft Constitution considerably enlarges the scope of the fundamental rights, particularly by recognizing the right to
freedom from arbitrary arrest, detention and punishment and the right to freedom from torture, and by prohibiting discrimination
and retroactive penal legislation.

A few of the fundamental rights are recognized as being absolute, in that no restriction is permitted – such as the freedom of
thought, conscience and religion, the freedom of thought, conscience and religion, the freedom from torture and the right not to be
punished with [death] or imprisonment, except by order of a competent court made in accordance with procedure established by
law.’

The Bill of Rights in the present constitution is quite elaborate in the sense that the several rights enumerated therein are not
subjected to blanket restrictions. While some rights cannot be subject to any limitation (by way of ordinary/ subordinate legislation
or executive/administrative action), the other rights are subject to restrictions (prescribed by law) of varying degree.

Such rights cannot be affected by the special majority in Parliament. Any attempt to affect such right will be successful only if people
directly confirm such legislative action by way of approval expressed through a referendum.
The FR manifesto✨ (AYODYA MADAM SAID FR IS A PROBLEM Q. THIS IS WHAT U NEED FOR A
PROBLEM Q; IN A TABLE.)

Article/ Case/ Source About the right

Article 10 Freedom of thought, conscience and religion including the freedom to Also seen in Article 18 of ICCPR, and
have or to adopt a religion or belief of his choice Article 18 of UDHR
Article 9 Article 9 and 10 are entrenched by
Article 83 of the constitution
P Seighart ‘The need to gratify our curiosity, to acquire information about our surroundings, to construct ordered systems of
belief, religion, ideology and ways of looking at the world; to exchange information, thoughts and opinions with
others; to learn from their experience; and to take part in scientific, artistic and other endeavours. In all these things
human individuals display powerful need for freedom of choice, autonomy, independence and respect from others for
their own integrity.’
Recognizes the freedom to be agnostic and the atheist as well.
The freedom of the faithful as well as the freedom of those who reject religious faith is protected. It prevents the State from imposing any
particular belief, religious or otherwise, on any person. This is in recognition of the State’s limitations from determining the ultimate truth.
Religious liberty can include to participate in activities that are essential to the expression of such belief.
Kokkinakis v the European Court of Human Rights stated that the freedom of thought, conscience and religion is one of the
Greece foundations of a democratic society.

In its religious dimension, one of the most vital elements that comprise the identity of believers and their conception
of life, but also a precious concept for atheists, agnostics, sceptics and the unconcerned. The pluralism which is
essential to a democratic society depends on such liberty
Premalal Perera v Case Facts:
Weerasuriya  The petitioner was an employee of the Railway Department.
 A circular issued by the General Manager stated that a one-day salary deduction from January 1985 would be
contributed to the National Security Fund.
 Employees could opt out by expressing their objection.
 The petitioner objected to the deduction, claiming it violated his Buddhist beliefs, which opposed contributing
to funds used for purchasing arms and weapons.
 He feared discrimination for his objection and filed a petition under Article 126 of the Constitution.
 Implications on Fundamental Rights:
 The petitioner argued that the deduction infringed his freedom of thought, conscience, and religion as
protected by the Constitution.
 The Court reaffirmed that religious beliefs are protected, provided they are sincerely and honestly held.
 However, it held that the circular, though neutral on its face, did not burden the free exercise of religion,
since:
o Objection was permitted without penalty.
o No coercion or discrimination was imposed for refusing the deduction.
o The regulation did not interfere with religious practice or belief.
Christian Case Facts
Sahanaye The bill was challenged on grounds that it violated Article 10
Doratuwa Prayer The bill provides for the setting up of a prayer centre and it also provides financial and economic benefits to its
Centre members.
(Incorporation) It was argued that the financial assistance will amount to inducement to follow that
Bill faith.
Thus its main objective may be foreseeable conversion.
Implications on Fundamental Rights
Court held that the bill was unconstitutional and requires a 2/3 majority.
The constitution guarantees to every person that the basic choice he makes with regard to his belief or would be
taken with complete freedom without being exposed to any undue influence, allurement or fraud.
Teaching sisters This bill had been aimed at propagating Catholic religion and to allure persons of other religions to convert.
of the Holy Cross - It is by this petition that the Court held that propagation of one’s religion is not a right recognized under Article 10.
of the Third - Also under Article 14(1)(e) it has the right to manifest , worship, observance and practice one’s religion.
Order of Saint
Francis in
Menzingen of SL
(Incorporation)
Bill
Article 11 Freedom from torture or cruel, inhuman or degrading treatment or No restrictions are permissible.
punishment Art 5 of the UDHR, Art 7 of the ICCPR,
Art 3 of the ECHR all carry this sentiment
Article 83 a Bill for the amendment or for the repeal and replacement of Article 11
or a Bill that is inconsistent with Article 11 requires a 2/3 majority in
Parliament and approval by the people at a Referendum
Declaration on ‘…any act by which severe pain or suffering, whether physical or mental, is The definition of torture
the Protection of intentionally inflicted by or at the instigation of a public official on a
all persons from person for such purposes as obtaining from him or a third person
being subjected information or confession, punishing him for an act he has committed or is
to Torture and suspected of having committed, or intimidating him or other persons.’
Other Cruel, Aggrevated and deliberate from cruel, inhuman or degrading treatment or Article 1(2) of the above declaration
Inhuman or punishment
Degrading
Treatment or
Punishment
Convention ‘Torture means any act by which severe pain or suffering, whether Article 1
against Torture physical or mental, is intentionally inflicted on a person for such purposes
and Other Cruel, as obtaining from him or a third person information or a confession,
Inhuman or punishing him for an act he or a third person has committed or is
Degrading suspected of having committed, or intimidating or coercing him or a third
Treatment (CAT) person, or for any reason based on discrimination of any kind, when such
pain or suffering is inflicted by or at the instigation of or with the consent
or acquiescence of a public official or other person acting in an official
capacity. It does not include pain or suffering arising only from, inherent in
or incidental to lawful sanctions.’
Ireland v UK British Soldiers used techniques known as ‘disorientation’ and ‘sensory deprivation’. These included wall standing for
hours in stress positions, hooding, subjection to noise, deprivation of sleep, deprivation of food and drink. The UK
government said these were authorized at the highest level. The European Commission said unanimously that these
constituted torture and inhuman practice. If they did not cause bodily injury, they constituted intense physical and
mental suffering and led to acute psychiatric disturbances.

Yet, the Court held that they did not amount to torture, as it was only inhuman or degrading treatment. ‘The five
techniques…did not occasion suffering of the particular intensity and cruelty implied by the word torture as so
 understood.’
Queen v although decided under the Soulbury Constitution, Basnayake CJ recognized the gravity of the allegations and the
Tennakoon horrendous nature of the crimes committed against the detainees in a police station.
Sudath Silva v the petitioner alleged that he was illegally detained at the police station for five days, beaten with batons, hung by a
Kodituwakku beam, penis crushed as a result of being put in a drawer and closed and forced to drink water mixed with chilli
powder. Though the local Medical Officer reported no external injuries, the Additional Judicial Medical Officer found
injuries consistent with the petitioner’s claim. The Court rejected the first medical officer’s report as being worthless
and that it showed utter irresponsibility and gross dereliction of duty on his part. The Court stated that even a
‘hardcore’ criminal is entitled to the right to freedom from torture

The court stated: ‘Every person in this country, be he a criminal or not, is entitled to this right to the fullest content of
the guarantee. Constitutional safeguards are generally directed against the State and its organs. The Police force,
being an organ of the State, is enjoined by the Constitution to secure and advance this right and not to deny, abridge
or restrict the same in any manner and under any circumstances… it is therefore the duty of this Court to protect and
defend this right jealously to its fullest measure with a view to ensuring that this right which is declared and intended
to be fundamental is always kept fundamental and that the executive by its action does not reduce it to a mere
illusion… the facts of this case have revealed disturbing features regarding third degree methods adopted by certain
police officers on suspects held in police custody. Such methods can only be described as barbaric, savage and
inhuman.’
Deshapriya v The petitioner was a worker in the ship and was arrested on the allegation of theft. He was thereafter retained in the
Weerakoon naval ship and tortured in an inhumane manner. The captain however denied knowing that such torture took place.
He also stated that even if such an act took place, he wasn’t directly involved.
Court held: Commander is under duty to take reasonable steps to ensure that persons under his custody are treated
in a humane manner.
In the forces, command is sacred and discipline is paramount.
Adhikari v the petitioners were spouses and were traveling in their car when at a traffic jam, the security officers of a minister
Amarasinghe prevented the vehicle from proceeding any further and punched the car with their fists. When the petitioners
questioned as to why they did this, the officers abused them and slapped the husband. The second petitioner wife,
who came to rescue her husband with an infant child in her arms was also slapped and abused. The officers shouted
saying that they were the security officers of a particular minister and could shoot and kill the petitioners if they
wanted. The SC emphasized that the protection of article 11 is not restricted to physical harm, but to psychological
 harm suffered by a victim. It was extended to the innocent child.
Mariyadas Raj v the petitioner was an Indian citizen in Sri Lanka alleged that he was beaten brutally and arrested by the respondent
Attorney General police officer, whilst sleeping at a house in Chilaw. It was held that whoever arrested him, had done so with the
executive power vested in him and therefore the State was liable. The relief granted by Article 126 is against the State.
the case the bill provided that a person convicted under any offence under the bill would be liable to imprisonment from 2-5
regarding the years and a fine, in addition to all moveable and immoveable property be forfeited and if he was a registered
Essential Public professional, his name be erased from any such register. The SC held that these mandatory punishments constituted
Services Bill 1979 excessive punishments and savoured of cruelty. That such punishments should be left to the Courts to be imposed as
per their discretion in fit cases. The bill was accordingly amended at the Parliamentary Committee stage.
Allied Right to The Right to Live in Dignity
Freedom from
Torture
UDHR Article 3 discussed right to life, which includes the prohibition of slavery, cruel, inhuman and degrading treatment in
the subsequent articles
Munn v Illinoins A wide interpretation to the right to life. it meant more than mere animal existence and the inhibition against
deprivation of life extends to all limbs and faculties by which life is enjoyed.
State v Right to life is antedecent to all other rights of the Constitution. “Without life in the sense of existence, it would not
Makwanyane be possible to exercise rights or to be the bearer of them…it is not life as mere organic matter that the Constitution
cherishes, but the right to human life; the right to live as a human being, to be part of a broader community, to share
in the experience of humanity. This concept of human life is at the centre of our constitutional values. The
Constitution seeks to establish a society where the individual value of each member of the community is recognized
and treasured.”
Article 13(4) Provides for right to live in dignity by prohibiting inhuman and degrading treatment
Sriyani Silva v the petitioner widow made an application that her husband had been tortured and that his death was due to such
Iddamalgoda torture. The judges in the SC agreed that even though the right to life is not expressly recognized as a fundamental
right it is impliedly recognized in some of the provisions of Chapter III, particularly where no person shall be punished
with death or imprisonment except by order of a competent court. Expressed in positive terms, Article 13 (4) means
that a person has a right to live, unless a court orders otherwise. Thus, if a person is put to death unlawfully and other
than under a court order, his right under Article 13 (4) is clearly infringed.
Indian Case Law Accepts right to life widely They are cited in PIL in SL
MC Mehta v the petitioner was a social scientist and brought to the notice of the SC that certain tanneries in Kanpur were
Union of India discharging effluents into the Ganges, endangering the public; that the authorities in not taking effective steps to
prevent the pollution, violated Article 21 of the Indian Constitution. On the orders of the Court, newspaper notices
were published notifying local authorities in the Ganges area to appear and show cause. Tanneries which failed to
take minimal steps to prevent pollution were ordered to close. Singh J stated, ‘We are conscious that closure of the
tanneries may bring unemployment and loss of revenue, but life, health, and ecology have greater importance to
people.’
Subasinghe v the petitioner was taken handcuffed by the police, in a private vehicle to the Dankotuwa town, made to walk with
Police Constable handcuffs across the town junction and later put to another vehicle and taken away. The SC took the view that the
Sandun exhibition was an affront to the petitioner’s dignity, amounting to degrading treatment as per Article 11.
Mrs. W.M.K. (Thash, fun fact, petitioner is my grandmother)
Desilva v Case Facts:
Chairman, Ceylon  The petitioner was the Secretary to the Chairman (Respondent).
Fertilizer  She refused to falsify meeting minutes as requested by the Chairman.
Coporation  After her refusal, the Chairman allegedly held a grudge.
 The petitioner later testified to the CID Presidential Commission, leading to an investigation against the
Chairman.
 In retaliation, she was placed on compulsory leave, later recalled but not given work, denied her cubicle, and
made to sit outside at a broken table and chair.
 She was socially excluded and humiliated at the workplace.
 The petitioner claimed this amounted to cruel, inhuman, or degrading treatment under Article 11 of the
Constitution.
Implications on Fundamental Rights:
 The case raised concerns under Article 11, which protects individuals from torture and cruel, inhuman, or
degrading treatment or punishment.
 The Court recognized that the petitioner was subjected to degrading and humiliating treatment, particularly
by being publicly ostracized in her workplace.
 However, the Court drew a distinction between cruel/unfair treatment and inhuman treatment under Article
11.
 It held that although the conduct was unfair and unprofessional, it did not rise to the level of inhuman
treatment constitutionally prohibited.
Holding:
  The Court concluded that the petitioner was degraded and humiliated, and the actions of the Respondent
constituted a grossly unfair labor practice.
 However, it held that the treatment did not meet the threshold of torture or inhuman treatment under
Article 11.
The court stated “‘Article 11 is a species belonging to a certain genera. It belongs to that class which protects life and
personal freedom. It belongs to the same family as the fundamental rights of freedom from arbitrary arrest,
detention' and punishment and retroactive penal legislation." "Article 11 is not concerned with the conduct of public
officials in relation to such matters as one's contractual rights in a place of work…. Article 14 confers the right to
certain freedoms upon citizens of Sri Lanka. There is no doubt "that the petitioner is a Sri Lankan. However, in an
application for relief under Article 14(1)(g), the Petitioner must also show that her right to engage in any lawful
occupation, profession, trade, business or enterprise was, unreasonably’ obstructed. The Petitioner must go further
still and establish that the right claimed was (a) a legal right and that (b) it is a fundamental right.”
Yogalingam A 27-year-old woman residing in Kayts, in the Northern Province who instituted action against some of the police
Vijitha officers in the Negombo Police Station. Due to the war, her family was displaced and she was living in Jaffna. She also
worked as a primary school teacher in Kilinochchi. Her aunt had arranged a marriage for her from Negombo and
therefore she arrived in Negombo in January 2000. She continued to stay with her aunt, and registered her marriage.
However, she subsequently learnt that her ‘husband’ was a married man with children, thus she refused to go
through with the Hindu Ceremony and live with him as his wife.

The husband, who was the 8th respondent to the case, then started to harass her continually and threaten her to
proceed with the religious ceremony. He also said that he would use his influence with the Negombo police, have her
arrested as a member of the LTTE suicide squad and have her tortured. True to his word, he was successful in
arranging this – Vijitha was arrested when in Trincomalee in June 2000. Her brother was also arrested. She was
assaulted with a club on her knees, chest, abdomen and back. She was then put into a cell in the Negombo police
station and detained for six days. Her ear studs had been removed and slapped with force. Her face had been covered
with a shopping bag containing chillie powder mixed in petrol which led
her to suffocate. On one occasion she had been asked to remove all her clothes except her underwear and the
brassier and her face had been covered with a shopping bag containing petrol and chillie powder after which she had
experienced a burning sensation all over her body. She had been asked to lie flat on a table and whilst four policemen
were holding her, pressed to the table, four other policemen had pricked paper pins under the nails of the fingers and
toes. She had been assaulted with a club and wires and when she fell down she had been trampled with boots.
 On another occasion she had been hung and whilst she was hanging had been assaulted with a club all over her body.
When she had refused to sign some documents they had proffered to her, one policeman had shown a plantain
flower soaked in chilli powder and had said that it would be introduced into her vagina unless she signed the papers.
When she refused to sign, she had been asked to remove her blouse and cover her eyes with it and had been asked to
lie on a table. Whilst she was lying down on the table four policemen had held her hands and held her legs apart and
the plantain flower had been inserted by force into her vagina and had been pulled in and out for about 15 minutes.
She had experienced tremendous pain and a burning sensation. She had become unconscious and after a few
minutes she had been asked to lie on the table till about 9.30 p.m. After some time some sheets of paper typed in
Sinhala had been brought by them and she had been asked to place her signature on them. Being unable to bear the
torture she had signed them. The contents of the documents she signed had neither been read or explained to her.
After some time, she had been put into a cell with strict instructions that she should not wash her genital region.

When she was crying in pain inside the cell one policeman on duty had shown mercy on her and by about midnight
had been permitted to use the toilet. The acts of torture meted out to her as set out above has affected her physically
and psychologically and her matrimonial prospects had been shattered as a result of the mental and physical trauma
that she had undergone at the hands of the police. She states that she is suffering from depression, loss of sleep, loss
of appetite, loss of concentration, fear and nervousness. She had been subject to merciless beatings thereafter.

The Court held that ‘Such methods can only be described as barbaric, savage and inhuman. They are most revolting
and offend one's sense of human decency and dignity particularly at the present time when every endeavor is being
made to promote and protect human rights.’

It was held that the petitioner’s fundamental rights were violated and compensation was ordered. The SC further
noted that the AG should consider taking steps under the Convention Against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment Act, Act No. 22 of 1994, against the Respondents.
mistaken identity the petitioner was tortured by the police with regard to a murder he had no knowledge over. His rights under articles
of Gerald Mervyn 11 and 13 were violated. He had been blindfolded, his hands had been tied, he had been hung from a beam and
Perera assaulted with iron rods and wooden poles. He was then laid out on the floor and his hands were burnt with lit
matches. After a day or so he was informed that his case was one of mistaken identity. Medical evidence found all
injuries and signs of renal failure. The Court held that the Petitioner’s fundamental rights under Articles 11 and 13
 were violated and awarded him compensation. The reimbursement for the costs of the private medical hospital too,
was justified and the Court cited ICESCR which lays down the human right to the highest attainment of mental and
physical health. The State was ordered to pay the bill of Nawaloka hospital.
Hewawasam he petitioner was a licensed toddy tapper and the policeman had come in civilian clothes and demanded toddy. When
Fernando v Police the petitioner stated he had none to give, they had taken the petitioner’s knife and cut him on the shoulder, face,
Sergeant abdomen and chest. After this, they had disrobed the petitioner and tied his hands behind his back and dragged him
Dayaratne and along the road for 400 meters. The petitioner alleged that his rights under articles 11 and 12(1) of the Constitution
other officers of were violated. There was sufficient corroborative evidence highlighting the respondents’ treatment of the petitioner –
the Welipaenna as the villagers had followed and recorded the scene contemporaneously. It was held that the petitioner’s right to
Police Station equality and freedom from torture were violated.
Karunapala v Petitioner was a 15 year old student from Puhuwella Central college.
Siriwardena
Case Facts:
 The petitioner was a schoolchild who had been slapped on the face by his teacher (the 1st respondent, an art
teacher).
 After the assault, the child was in severe pain but the second respondent (teacher in charge of discipline)
ignored his complaint and told him not to tell his mother.
 No staff member, including the Principal, was informed of the incident or provided the child any support.
 Medical examination revealed a perforated left eardrum and hearing loss, particularly at lower frequencies.

Implications on Fundamental Rights:

 The case engaged Article 11 of the Constitution (prohibition of cruel, inhuman or degrading treatment).
 The Supreme Court referred to various international human rights instruments, including:
o UN Convention on the Rights of the Child (UNCRC)
o Universal Declaration of Human Rights (UDHR)
o International Covenant on Civil and Political Rights (ICCPR)
o Convention Against Torture (CAT)
 The Court emphasized that Sri Lanka, as a signatory to the UNCRC, has pledged to limit corporal punishment
in schools.
 It noted that corporal punishment, especially when causing physical injury like hearing loss, violates a child’s
right to dignity and protection.
  The Court also referenced Penal Code Amendment Act No. 22 of 1995, specifically Section 308A, which
criminalizes assault and ill-treatment of minors causing injury.
 Teachers act in loco parentis and must prioritize the well-being and safety of children, not subject them to
violence.
Holding:
 The Supreme Court held that the petitioner’s fundamental rights under Article 11 were violated due to the
unjustified corporal punishment resulting in injury.

Bandara v Corporal punishment can amount to torture.

Wickremasinghe
the SC supported the view that excessive force by teachers constituted cruel and degrading treatment. That
maltreatment should be considered from the point of view of a minor, and not through an adult’s perspective.
Corporal punishment cannot be part of an education. The Court held that the child’s fundamental right under article
11 had been violated, as there was permanent lifelong damage to hearing. Compensation was ordered.
Article 12(1) Equal before law and equal protection from law
Article 12(2) Non discrimination on race, religion, language, caste, sex, political opinion, place of birth or any one of such grounds
Article 12(3) No person on basis of above grounds can be subjected to disability, liability, restriction or condition with regards to
access to shops, public restaurants, hotels, places of public entertainment and places of public worship of his own
religion
Article 12(4) Article 12 doesn’t prevent provisions for being made for advancement of Provides constitutional sanction to
women, children or disabled persons reverse discrimination/affirmative action
and resembles Article 14 and 15 of the
Indian Constituution
Article 18 of the Dealt with Equality. Did not provide any mechanism for specific Was exercised under writ jurisdiction
1972 Constitution enforcement of rights
Dicey Equality before law is a corollary of Rule of Law. Means equal subjection of all classes to the ordinary law of the land,
administered by the ordinary law courts. No person is above the law.
Palihawardena v the petitioner claimed that his rights under Article 12 were violated by the Government’s Job Bank Scheme. This
AG scheme envisaged the nomination of 1000 persons who were unemployed, by the MP of the electorate. The persons
so nominated had to be residents of the electorate between the ages of 18 and 40. There had to be no income earner
in the family and the petitioner showed that a large number of youths who met the criteria were not issued
 nominations; that the MP had selected persons from families who owned land and had income and pensions. The
Petitioner’s contention was that the scheme vested in the MP unfettered and absolute discretion to deny or limit the
rights of citizens to seek employment in the public sector. However, the State alleged that the petitioner also
belonged to a well to do family, and thus he had no locus standi. Apart from the intricacies of the case, the dicta of
Justice Sharvananda is relevant:
‘When a power is entrusted to a very high and responsible officer, he may be expected to act reasonably, objectively
and without bias whilst discharging his duties. An MP… who has emerged victorious in a contested election cannot in
the nature of things inspire confidence… the credibility gap is there. Hence any law or scheme which commits to the
unrestrained will of such a person a discretion or power… may tend to strike at the roots of concepts of justice and
equality which are the corner stones of the Constitution.’ Unfortunately, inspite of the encouraging dicta, the
petitioner could not succeed in the case. This has been criticized.

The criteria set out :

(a) Not every person could always be treated equally, classification of persons by law is permissible
as long as it is done for a legitimate objective and is reasonable
(b) In order for a classification to be reasonable it must be based on clear and intelligible differentia
that bear a reasonable relation to the objectives sought to be achieved by the state
(c) That a system of classification must be applied, treating equal persons equally
Perera v UGC the Court invalidate a University Admission Scheme on the basis that the classification used did not have a rational
nexus with the objectives of the State. The facts were that there were 2 advanced level examinations that year, to
accommodate the old and new syllabi. Although they ought to have been treated equally, the UGC had set a policy to
admit students to university on two different ratios. The Plaintiff argued that if not for these two separate ratios, the
plaintiff’s daughter could have entered the faculty of medicine. That the differentiation was arbitrary and irrational. By
striking such policy down, the judgment had an impact on educational authorities. This case marked the beginning of
progressive jurisprudence regarding Article 12. The doctrine of ‘reasonable classification’ has yielded laudable
judgements.
Seneviratne v there was a decision to fill 55% of the vacancies in the universities in that year on the ratio of the population figures of
UGC residents in the 24 administrative districts. This was challenged. Wanasundera J delivering the opinion of the Court
stated that the departure from the merit principle, though unfortunate, was inevitable because the UGC had tried to
act as fairly as possible and had endeavoured to distribute, on a rational basis, a percentage of seats ‘among the great
mass of residents who are handicapped – through no fault of their own.’ This could be seen as an instance where the
 Court recognized affirmative action. Justice Wanasundera cited the Directive Principles of State Policy of the
Constitution and that it was an instrument of instructions that the executive and the legislature had to follow; the
provisions were part and parcel of the Constitution and the Courts needed to take due recognition of them and make
proper allowance for their operation. This judgment centered around the reasonable classification doctrine.
Yasapala v The Cabinet of ministers laid guidelines for dealing with persons applying for reinstatement in the aftermath of the
Wickramasinghe general strike of 1980.
It classified officers who absented themselves from work into categories consisting of officers who (i) involuntarily did
not attend office because of some misfortune such as illness or some other similar reason and (ii) voluntarily absented
themselves in furtherance of the strike.
The SC held that the guidelines exhibit reasonable classification
Joseph Perera v e it invalidated Emergency Regulations on the basis that it conferred unbridled powers on the Police to engage in prior
AG censorship which violated Article 12. The impugned ER required any poster, handbill or leaflet to be submitted to the
police prior to distribution. The Court stated that,
‘the regulation would be violative of the equality provision because it would permit arbitrary and capricious exercise
of power which is the antithesis of equality before the law… there is no rational or proximate nexus between the
restriction imposed by Regulation 28 and national security / public order.’
Elmore Perera v The courts took a regressive step.
Minister of Public The petitioner was a public servant complained that his right to the equal protection of the law was denied when he
Administration was sent on compulsory leave. In his view, it was related to a disagreement he had with the relevant minister. It was
alleged that the relevant procedures in the Establishment Code and administrative procedures were not followed. It
was a 9-judge bench and 5 of the judges took the view that in order for the petitioner to succeed he had to show that
another person similarly situated had been treated differently, and that the petitioner was singled out for ill
treatment. The petitioner’s claim was disallowed.
Ramupillai v Case Facts:
Minister of Public  The petitioner, a Superintendent of Customs, challenged a Public Administration Circular that introduced an
Administration ethnic quota system for promotions in the public sector, based on national ethnic ratios.
 The petitioner claimed that his right to equality would be imminently infringed, as the quota system reduced
his chances of promotion, despite merit and qualifications.
 The ethnic classification used for quotas was not based on any clear or rational criteria, and there were no
valid justifications for its application, aside from vague perceptions of ethnic balance.
 Implications on Fundamental Rights:
 The case centered on Article 12(1) (equality before the law) and Article 12(2) (prohibition of discrimination
based on race, religion, etc.).
 The ethnic quota system was deemed irrational, unjustified, and inconsistent, violating the constitutional
guarantee of equality.
 The Supreme Court held that immutable characteristics like ethnicity or sex do not inherently make
individuals unequal.
 While affirmative action is permissible to remedy historical discrimination, it must:
o Serve a legitimate objective,
o Be based on intelligible and rational classification, and
o Avoid arbitrary or fixed quotas.
 The decision affirms that merit should be the primary criterion in promotions unless a justified affirmative
action program is narrowly tailored.

Holding:
 The Supreme Court ruled that the ethnic quota system for public sector promotions was unconstitutional, as
it violated Article 12(1) by deviating from merit without justification.
 The Court emphasized that:
o Equality means equal treatment for equals, and differential treatment must be justified and
purposeful.
o Racial quotas that are not based on evidence of historical injustice are not permissible in a democratic
society.
 Affirmative action is allowed, but only when carefully targeted to benefit victims of actual, proven
discrimination, not as a tool for arbitrary ethnic balancing.
Shafeek v It was held that the principle of ethnic quotas in relation to the recruitment to the public service is an infringement of
Secretary, Public Article 12.
Service
Commissioner
Bandara v the petitioners were a group of government surveyors who were served with vacation notices pursuant to their
Premachandra participation in Trade Union action. The respondent Secretary to the Ministry had not given reasons for their
termination. The petitioners claimed that others who were similarly situated were treated more leniently. The Court
 argued that Article 55 (1) of the Constitution was subjected to Article 12 (1); that the latter mandated fairness and
excluded arbitrariness. Powers of appointment and dismissal were conferred by the Constitution; such must be
governed by reason and not caprice, and they were not absolute, unfettered or arbitrary. The Court found that the
dismissal was arbitrary and unreasonable.
Perera v the petitioner was the Deputy Surveyor General and there was personal animosity between him and the respondent
Jayawickrama minister. The petitioner was placed in Public Officers Reserve Pool and was sent on compulsory leave for inefficiency
and incompetence. Six months later he got notice that he was being compulsorily retired. It was held unanimously by
Court that the petitioner was retired by not following the Establishments Code; that the procedure followed had been
arbitrary, unreasonable and lacked bona fides.
Gunaratne v CPC the Court found that the termination of a petroleum dealership previously awarded to the petitioners had been
without sufficient reasons. Justice Fernando declared that the principle of equality propounded in Article 12 was a
corollary of the Rule of Law; that powers vested in the State are not absolute or unfettered but held in trust for the
public. The Respondents must show sufficient cause and justify their decisions, especially when such is scrutinized by
Court.
Ratnayake v Sri the SC held that the State held the airways on public trust and hence, must exercise its regulatory powers in a fair and
Lanka Rupavahini reasonable manner, else it would be a violation of Article 12. In the latter case it was stated that the SLRC should
Corporation establish and implement a fair and objective procedure to determine if a telefilm submitted to it was suitable for
Atukorale v screening.
Attorney General
Anura the petitioner’s house was searched on an alleged tip off by an informant. The Court held that the information so
Bandaranaike v provided was not checked for credibility and the IGP failed to satisfy the Court that he had any reliable information to
W.B. Rajaguru justify the search. Court held that the search had been conducted arbitrarily and violated the petitioner’s right to
equal protection
Plessy v Ferguson deplorable decision with regards to segregation in the US. The dissenting judgement is of value.
Brown v Board of with the evolution of a more rights-based approach, the dissenting opinion of the above found favour and a
Education progressive decision was made with regards to segregation.
Maneka Gandhi v a divorce between natural law and constitutional law is disastrous. The fundamental rights in Part III of the
Union of India Constitution represent the basic values cherished by the people of this country since the Vedic times and they are
calculated to protect the dignity of the individual and create conditions in which every human being can develop his
personality to the fullest extent. But these freedoms are not and cannot be absolute, for absolute and unrestricted
freedom of one may be destructive of the freedom of another. In a well-ordered civilized society, freedom can only be
 regulated freedom Equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic while
the other to the whim and caprice of an absolute monarch. Article 14 strikes at arbitrariness in State action and
ensures fairness and equality of treatment.
PROCEDURAL SAFEGUARDS
L Pfeffer states ‘Procedural safeguards rest upon two underlying assumptions of democracy, the integrity of the individual and
Government by law rather than men.’ These safeguards were won at a very high cost and struggle for constitutional democracy. They are
also essential so that rule by whim or caprice is avoided. They prevent judicial abuse. Liberty should be restricted strictly for the purposes
laid down by law
As per Dicey, personal liberty would mean the following – ‘a person’s right not to be subjected to imprisonment, arrest or other physical
coercion in any manner that does not admit of legal justification.’
Article 9 of the UDHR and Article 9 of the ICCPR provide for these rights
Article 13(1) Freedom from arbitrary arrest Prior to the 1978 constitution, this right
was enshrined in the case of In re
Bracegirdle. Here, the order of the
British Governor himself was declared
illegal. The Court stated that the power
for the Governor to make such an order
was only under a state of emergency,
which was not in existence and ordered
the release of Bracegirdle.
Section 18 of the freedom from arbitrary arrest, but the accused had no fundamental right to be informed the reason for his arrest.
1972 Constitution
Article 22 of the guaranteed the freedom from arbitrary arrest, but there is an addition of the right to be defended by a lawyer of the
Indian accused’s choice. In Lanka, this is not granted.
Constitution
Mahinda the petitioner was an opposition MP and the Secretary of the Committee of Parliamentarians for Fundamental Human
Rajapakse v Rights. He went to the Katunayake Airport to board an aircraft bound to Geneva, to attend the session on Involuntary
Kudahetti disappearances. At the airport, the first respondent, a police officer, informed the petitioner that he wished to
examine his baggage. He stated in his affidavit that he had information that the petitioner was carrying fabricated
documents prejudicial to the interests of national security, hatred towards the government and an offence under the
emergency regulations. The petitioner said he had documents and photographs that were not offensive or subversive
 but necessary for the protection of human rights. He refused the respondent to search his bag. However later, after
him throwing the bag at the respondent, the respondent searched and found many documents and photographs
which he confiscated. The petitioner then boarded the aircraft. The Court held that although there was a detention,
and a delay, there was no imprisonment or forced confinement or restriction of movement. Thus, there was no
restraint on his freedom by actual or threatened coercion. Even giving up the documents was not a choice between
surrender or imprisonment.
Namasivayam v the petitioner alleged that he was arrested by the 3rd respondent while traveling in a bus and was not informed of
Gunawardena the reason for arrest. The respondent denied it and stated that he was investigating the robbery of a gun and had
reason to believe that the petitioner was acquainted with the facts and circumstances; that he merely ‘required’ the
petitioner to accompany him to the police station for questioning and released him after recording a statement. The
Court held that in law, the petitioner had been arrested, prevented from proceeding with his journey in the bus and
deprived of the liberty to go wherever he pleased. The use of force is not necessary. The petitioner did not go
voluntarily.
Piyasiri v 14 customs officers alleged illegal arrest by members of the Bribery Commissioners department. It was based on an
Fernando, A.S.P anonymous complaint. The latter denied arrest and stated that at no time were the petitioners confined and
incarcerated and that their movements were only restricted for the limited purpose of searching them and recording
their statements. The Court unhesitatingly decided that the petitioners were arrested. The learned judges quoted Dr.
Glanville Williams where he says, ‘if an officer merely makes a request to the suspect, giving him to understand that
he is at liberty to come or refuse, there is no imprisonment and no arrest. If however, the impression is conveyed that
there is no such option, and the suspect is compelled to come, it is an arrest…’ It was further held that the complaint
was made against no named officer, therefore none of the petitioners ought to have been arrested. No police officer
had the right to arrest a person on a general vague suspicion, not knowing the precise crime but hoping to elicit
evidence of some crime. Even if such evidence comes to light, it will be illegal as its illegality is caused through the
improper arrest.
Mahinda The petitioner was to travel to Geneva to attend a conference. He was informed by the respondent that his bag will be
Rajapakse v checked at the Katunayake Airport on the information received that the petitioner was carrying fabricated
Kudahetti information. Upon finding such documents, it was confiscated and the petitioner was allowed to
proceed with his journey. The petitioner thus filed a case based on the ground of arrest. The court held that his
freedom of movement was not restricted and thus Article 13(1) was not violated.
Sirisena v Perera It was held that, whether or not a person has been arrested depends not on the legality of the arrest but on whether
he has been deprived of his liberty to go where he pleases.
Section 32(1) of If one is to arrest without a warrant that too must be done in accordance with the law
the Criminal
Procedure Code
Section 63 of the
Police Ordinance
section 6(1) of empowers any Police officer not below the rank of Superintendent or any other police officer not below the rank of
the Prevention of Sub Inspector, authorized in writing by him in that behalf to arrest, without a warrant, any person connected to or in
Terrorism Act No. concerned with any unlawful activity.
48 of 1979
Regulation 17 of empowers the Secretary of the Ministry of Defence to order a person to be taken into preventive custody for the
the emergency purpose of preventive detention.
regulations
Muttusamy v it was emphasized that a reasonable suspicion must exist for an arrest; the police officer cannot arrest simply to
Kannangara embark on a voyage of discovery
Premalal de Silva that if the police arrest a person in the hope of getting a break in the investigation by questioning, that would end up
v Inspector in the usage of torture methods.
Rodrigo
Yapa v a lawyer and an opposition politician were arrested by a police officer upon a complaint made the then minister of
Bandaranayake finance, over the telephone. The allegation was that the politician had led a mob that attacked the minister’s house,
even though the source of information was not divulged. The judges concurred in what academics term a deferential
opinion that the minister was a responsible cabinet minister and would not have made a frivolous complaint; and that
he would have been satisfied of the truthfulness and credibility of his informant.
Channa Peiris v Sets out the criteria an officer must follow prior to making an arrest.
AG  The officer making the arrest cannot act on suspicion founded on mere conjecture or vague surmise.
 His information must give rise to reasonable suspicion that the suspect was concerned in the commission of
an offence
 The suspicion must not be of an uncertain and vague nature but of a positive and definite character providing
reasonable ground for suspecting that the person arrested was concerned in the commission of an offence.
Vinayagamoorthi It was held that the question whether the arrest was done following the du process or not is not decided by the
Vimalendran v offence he was committing at the time of the arrest and not by the offences that are revealed by the investigations
Army General carried out after the arrest.
Vivienne the petitioner was a veteran Marxist politician. Her allegation was that she was arrested by the Kollupitiya police
Gunawardena v station after she and other female comrades had gone there to request the release of a cameraman who had taken
Perera photographs of the police snatching their banners on another day after a women’s march. The police officers stated
that the petitioner had gone on the march without a valid permit. The Court held that there was no legal basis for the
policeman’s order for the procession to disperse and the petitioner had all the right to carry on with her procession.
Resultantly, the arrest was illegal.
Mariyadas Raj v Discussed why there is a requirement to inform a person the reason for arrest. “... The purpose of this rule is to afford
AG the earliest opportunity to the arrested person to remove any mistake, misapprehension or misunderstanding in the
mind of the arresting official and disabuse his mind of the suspicion which actuated the arrest”
Danny v Sirinimal the petitioner was arrested in a guesthouse with a woman he was sexually intimate with. They were produced before
Silva the magistrate, charged under the Brothels Ordinance. The police claimed they visited the guesthouse to determine if
terror suspects were there, and found rooms occupied by persons whose identities they could not establish. The SC
held that even in terms of the Brothels Ordinance, having intercourse is not an offence and the offence is to manage a
brothel. The petitioner was not guilty of such; therefore the arrest was unlawful
Joseph Perera v the 3 petitioners were members of the Revolutionary Communist League. They were to hold a meeting on ‘Popular
Attorney General frontism and free education’ when the police arrived, dispersed the crowd that had come for the meeting and
arrested the petitioners without stating the reason for their arrest. They were detained from 26 June to 15 July under
a detention order. The Court held that none of the material contained in the pamphlets for distribution were
objectionable. It was held that a Regulation which stated that no person could affix any posters without the
permission of the IGP, was ultra vires. As to the power of arrest, there should be a reasonable complaint or a
reasonable suspicion, the state of mind of the person making the arrest at the time of making the arrest had to be
ascertained. The Court was cognizant of the civil strife that was existent at that time.

For the right to know the reason of arrest, Sharvananda CJ stated in Mariadas Raj v AG that ‘the law is solicitous for
the freedom of the individual and has therefore enacted that the person who is arrested is entitled to know the
reason for his arrest and has elevated this right into a fundamental right with the attendant sanctions for its breach…
the purpose of this rule is to afford the earliest opportunity to the arrested person to remove any mistake,
misapprehension or misunderstanding in the mind of the arresting official…’
Sirisena v Ernest the petitioners were deprived of their liberty because the respondents wished to interrogate them – not because they
Perera were suspected of any offence. Justice Fernando opined that Article 13 (1) clearly and unambiguously prohibited any
arbitrary deprivation of liberty and a wider meaning of arrest was to be preferred
 (a) Any ambiguity must be resolved in favour of the liberty of the citizen. The interpretation must
be to enhance the right rather than the interpretation which diminishes it. This in compliance
with Article 4(d) which directs the judiciary to respect, secure and advance fundamental rights
and not to abridge, restrict or deny them
(b) International Conventions and Covenants indicate that the law of nations is evolving towards
general recognition that the freedom from arrest is a basic right and therefore it would be a
retrograde step to give Article 13(1) a restrictive interpretation.
Kapugeekiyana v Chief Justice Samarakoon stated that ‘even a suspect on the blackest of criminal charges is entitled to his fundamental
Hettiarachchi rights.’
Pananwela ‘even a burglar has rights and they cannot be abused at the whim and fancy of a person in authority even in the
Mudiyanselage course of a bona fide investigation. It is also well to remember that the common law presumption of innocence now
Nihal Pathmasiri v found recognition in the Constitution operates in favour of every person until he is found guilty of a crime by due
Police Inspector process of law.’
H.A. Illangasiri
Wickramabandu The concept of preventative detention.
v Herath and “Preventive detention is vital to the law enforcement process. It is an indispensable social necessity and is rsorted to
Others in times of war, rebellion, insurrection of even during peacetime. There is nothing inherently unjust in the concept
provided that any law for preventive detention should be arbitrary and should provide adequate safeguards against
oppression and deprivation of personal liberty.”
Article 13(2) Right to be produced before a judge
Article 13(3) Right to fair trial a. The trial must be by a
competent court
b. He is entitled to be heard
in person or by an
attorney at law
c. The trial must be fair
Kapugeekiyana v the petitioner stated that he was in the dock of the MC and handed over a note of instructions to his counsel and the
Hettiarachchi first respondent then demanded that he be shown the note. Counsel refused. The counsel reiterated that the note
was a communication from the client and therefore privileged. The 1st respondent threatened to call the counsel
questioned by the CID; Samarakoon CJ declared that communications between Counsel and clients were privileged
and no person had the right to pry into them.
Kumaranatunga v the Court pointed out that regrettably, in Sri Lanka there is no fundamental right to legal representation in person. Dr.
Samarasinghe J. Wickremaratne submits that this right be extended by a constitutional amendment to all persons arrested and
detained, as in India under Article 22 (3) of the Constitution.
Dr. a. Right to counsel
Wickremaratne b. Fair hearing
c. Double jeopardy
d. Self-incrimination
e. Speedy and public trial
f. Appeal procedure and its availabity
The Sri Lankan Constitution declares the right to a fair trial but does not lay down the essential requirements.
Article 13(4) Freedom from arbitrary punishment Prohibits punishment by death except
under order of a competent court made
in accordance with procedure
established by law.
Kumaranatunga v the question arose whether preventive detention under emergency regulations amounted to punishment. The same
Samarasinghe contention arose in the case of Wickramabandu v Herath [1990] 2 SLR 34. The Court rejected this contention and
stated that restraint on liberty could be imposed either as a punitive measure or precautionary measure. That
preventive detention is vital for the law enforcement process and an indispensable social need, resorted to in times of
war, rebellion and even during peacetime. Yet, such laws should not be arbitrary and provide adequate protection
against oppression and personal liberty.
Joseph Perera v no sooner the further investigation is concluded, the suspect is entitled to be released from detention without waiting
The Attorney out a full period.
General
where the reason for the petitioner’s arrest (documents) did not contain any objectionable material and that ‘it would
not have taken the police investigators much time to arrive at that conclusion themselves after due consideration of
the documents.’ Hence, continued detention in police custody was held unconstitutional
Article 13(5) Presumption of innocence permits the restriction by law in the
Article 15(1) interests of national security
Article 11(1) of
the UDHR
Article 14(2) of
the ICCPR
Article 13(6) Freedom of retroactive penal legislation e x Post Facto Penal Laws.
article 11(2) of
the UDHR
Article 15(1) of
the ICCPR
Liyanage v The T he Privy Council affirmed the power of Parliament to pass retrospective legislation. In the instant case the PC struck
Queen down the Acts of Parliament not because they were ex post facto but because of the deliberate interference with
judicial power.
proviso for Article permits the trial and punishment of any person for any act or omission which at the time when it was committed, was
13(6) criminal, according to the general principles of law recognized by the community of nations, even though it was not
Article 11 (1) of an offence under local law.
the UDHR
Article 15(2) of This is what happened Offences Against Aircraft Bill 1982 which sought to make certain acts criminal with
the ICCPR retrospective effect. It also sought to give effect to International Conventions to which Sri Lanka was a party.
PERSONAL LIBERTIES
Sharvananda CJ, ‘Article 14 of the Constitution deals with those great and basic rights which are recognized and guaranteed as the
natural rights inherent in the status of a citizen of a free country.’
Article 14(1)(a) Freedom of speech and expression including publication Has four purposes.
1. It helps an individual to attain
self fulfilment.
2. It assists him in the discovery of
truth.
3. It strengthens the capacity of
an individual in participating in
decision making.
4. It provides a mechanism by
which it would be possible to
establish a reasonable balance
between stability and social
change.
 Communication may take various forms
– dialogue, publication, written material,
illustrations, visual images by electronic
media etc.
Victor Ivan v the petitioner was the editor of a weekly newspaper. He complained that the decision of the AG to indict him for
Sarath Silva criminal defamation was violative of his freedom of publication, that exposing misconduct and corruption was a
public service and that under the pressure of deadlines, it was not always possible for a newspaper to ensure
accuracy. Justice Fernando stated that a newspaper did not enjoy a greater degree of freedom of speech than the
ordinary citizen, that Article 14(1)(a) was entrenched for all alike, ‘it surely does allow the pen of the journalist to be
used as a mighty sword to rip open the façade which hide misconduct and corruption, but it is a two-edged weapon
which he must wield with care not to wound the innocent whilst exposing the guilty.’
Joseph Perera’s ‘Freedom of speech and expression means the right to express one’s convictions and opinions freely by word of
case (Joseph mouth, writing, printing, pictures or any other mode. It includes the expression of one’s ideas through banners,
Perera v AG) poster, signs etc. It includes the freedom of discussion and dissemination of knowledge. It includes the freedom of the
press and propagation of ideas; this freedom is ensured by the freedom of circulation.’

‘Freedom of speech and expression consists primarily not only in the liberty of the citizen to speak and write what he
chooses, but in the liberty of the public to hear and read, what it needs. The consent of the governed implies not only
that consent shall be free but also that it will be grounded on adequate information and discussion aided by the
widest possible dissemination of information from diverse and antagonistic sources…freedom to form public opinion
is of great importance.’
Amaratunga v drumming and clapping, part of an organized movement against the government, was held to come within the
Sirimal freedom of expression.
Karunathilaka v it was claimed that the right to vote is a form of speech and expression that is protected by Article 14(1)(a). The
Dayananda judges stated as follows: ‘a voter can therefore express his opinion about candidates, their past performance in office,
Diassanayake and their suitability for office in the future. The verbal expressions of such opinions…would clearly be within the
scope of ‘speech and expression’… the silent and secret expression of a citizen’s preference as between one candidate
and another by casting his vote is no less an exercise of the freedom of speech and expression, than the most
eloquent speech from a political platform. To hold otherwise, is to undermine the very foundations of the
Constitution.’
Visualingam v public discussion is important in a democracy and for its full realization, public discussion demanded the recognition
Liyanage of the right of the person who is the recipient of the information. That Article 10 of the Constitution denies
government the power to control people’s minds and Article 14(1)(a) excludes the power to curb their tongues
Environmental Case Facts:
Foundation Ltd. v  The petitioner was a non-profit organization advocating for environmental protection in the public interest.
UDA  The case arose from the Urban Development Authority (UDA) handing over control of Galle Face Green to
E.A.P. Limited.
 The UDA assured the public that uninterrupted access to Galle Face Green would continue, but refused to
provide the petitioner with the vesting order and lease agreement.
 The petitioner claimed that this denial of access to information undermined their ability to exercise the
freedom of speech and expression under Article 14(1)(a) of the Constitution.

Implications on Fundamental Rights:

 The case hinged on the right to freedom of speech and expression under Article 14(1)(a).
 The Court recognized that freedom of expression implies an implicit right to access relevant public
information, especially when it involves matters of public interest.
 Although the right to information was not yet explicitly enshrined in the Constitution at the time, the Court
acknowledged its necessity for meaningful public discourse and civic participation.
 The State and public authorities, such as the UDA, have a duty of transparency, particularly when actions
affect public resources and spaces.

Holding:
 The Supreme Court held that the refusal by the UDA to provide the requested documents violated Article
14(1)(a).
 The Court affirmed that:
o The right to freedom of expression includes the right to access information in the public domain.
o When public interest outweighs confidentiality, the State must disclose the relevant information.
o Public authorities are accountable for ensuring transparency and facilitating informed public
engagement.
Deshapriya v the Mayoress of a particular political party confiscated a newspaper critiquing the government. The Court held this
Municipal was a violation as it was a denial of equal treatment because of political opinion (Article 12) and democracy meant
Council, Nuwara that not only should democracy be tolerated, but it should be encouraged.
Eliya
Mohottige v Any form of prior restraint or conditions imposed on the freedom of speech is an abridgement. Here, the Police,
Gunatilleke before providing the permit mandated that the names of the speakers be given, only three speakers could speak and
the speakers had to restrain from criticizing the government.
Dissanayake v Sri Sharvananda CJ stated that regulation of this right was permissible in the interests of efficiency, discipline, health,
Jayawardenapura morality, public order and the like. That Article 14(1)(a) does not provide a carte blanche right to publish baseless
University allegations defaming a vice chancellor. A university must have the power to protect itself by insisting on prior written
permission for publication. The VC was entitled to take proceedings against the petitioner.
Hewamanne v there was a news item in the Daily news about a resolution placed in the Order paper of Parliament. The report
Menik de Silva contained defamatory material of two judges of the SC. The respondents stated that the report was a fair and
accurate publication of a document forming part of Parliamentary proceedings, published without malice and hence
immune from contempt. The majority held that the report was not protected under common law. Due to this
decision, the Parliament (Powers and Privileges) Act was amended by Act No. 25 of 1984 to protect publications
which are bona fide, without malice of any extract of parliamentary proceedings.
S.B. Dissanayake came up before a 5 judge bench – a speech had been made by Dissanayake, saying that any ‘balu’ decision made by
[2004] the Court on contempt charges against him (because he had had a previous case in 2004 and not been convicted of
contempt) will not be respected by him. The SC stated that the slang used by him was ‘disgraceful.’ He was found
guilty of contempt and sentenced to two years RI.

‘For the judiciary to perform its duties and functions effectively and true to the spirit with which it is sacredly
entrusted, the dignity and authority of the Courts have to be respected and protected at all costs.’
Siriwardena v there was a prohibition under emergency regulations of the leftist paper ‘Aththa’ and the closure of the Press in which
Liyanage the paper was printed. This was pursuant to the Presidential Election. It was stated that the competent authority was
acting with mala fides to prevent the paper from campaigning against the Government at the impending referendum.
The Authority said that the contents of the paper were highly inflammatory and would incite sections of community
to violence. The Court was of the view that the Authority had acted reasonably, taking into account the tension and
violence escalating in the country. Dr. Wickramaratne respectfully disagrees with the outcome of the case; that the
Court can not have taken judicial notice of the situation in the country, when making the judgment.
Sunila an Emergency Regulation prohibited the publication of any material pertaining to the conduct, morale or the
Abeysekera v performance of the Head of the Military Forces or the Police Force who would be rendering assistance to the
Ariya Rubasinghe preservation of national security. The Regulations were made by the President under the Public Security Ordinance.
 The petitioner was a human rights activist and stated that this regulation prevented her from receiving relevant
information and hence violated Article 10, 12 (1) and 14(1)(a). She alleged that the Regulation was made to prevent
an embarrassment to the government rather than the protection of national security. Yet, the Court held that the
petitioner had failed to show that the purpose of the Regulation was a pretext and not in the interests of national
security; that the Regulations were framed in precise terms and thus, no breach of FR had taken place.
Fernando v The SLBC had been airing a particular program on radio for some time. This was suddenly stopped. The petitioner came to
SLBC Court on the basis that SLBC had violated his freedom of expression and speech as he cannot now listen to what he
preferred. Supreme Court took a different approach to that of Viswalingam’s case. It is also noteworthy that Justice
Mark Fernando has recognized the right o information by interpreting article 14(1)(a) in a broader sense.
Article 14(1)(b) Freedom of peaceful assembly Closely connected with freedom of
expression. Assemblies are needed
corollaries in the formation and
dissemination of opinion to the public.
Article 15(3) permits the restriction, through a statute, in the interests of racial and religious harmony
Article 15(7) restrictions are permitted for the interests of national security, public order, or the rights and freedoms of others.
Bernard Soysa v the SC held that a place to which the public have access to for the purpose of worship cannot be treated as a public
Attorney General place for the purpose of holding a ‘satyagraha’ which is essentially political. Express permission from the authorities in
charge of the temple was required. There is no general right to hold meetings in lands belonging to others.
Wanigasuriya v the Wattala-Mabola UC withheld permission for the petitioners to hold a meeting in its hall on ‘Adult Education.’ The
Peiris advertisement for it stated that the decisions of the SC on human rights will be discussed, for which the petitioners
were ejected. The SC held that such topics fell within the area of adult education and thus the petitioners had not
breached their license and their freedom of speech, expression and assembly had been violated.
Vivienne no permit or permission had to be taken out of procession. Only notice was required and such notice could be
Goonawardena provided even orally.
Atukorale v De the police refused to grant permission for the holding of a May Day procession of the UNP, in Kandy and offered
Silva alternative venues. The judges cited section 77 of the Police Ordinance, (which was amended subsequent to the
decision in Vivienne Gunawardene) and which stated that if one were to have a procession, one must give notice of
such at least 6 hours before to the OIC of the police station. The law does not require any formal application to be
made for anyone. The police also have no It was held that the petitioners right to equality was violated and they had
been discriminated against, due to their political opinions; that they were unreasonably stopped having their meeting
and procession in Kandy and thus their right to peaceful assembly and freedom of expression were violated.
Article 14(1)(c) Freedom of association An expression of the human personality.
This is where people associate one other
for a common purpose, or joint action,
and influence policy. It becomes even
more important when an association
plays a political role, even when it is not
specifically a political organization.
Article 15(4) restriction by law, in the interests of racial and religious harmony or
national economy.
Article 15(7) and Freedom to form associations and trade unions under 14(1)(d) can be
emergency restricted
regulations
Ariyapala Discussed the freedom of association under Article 18(1) of the 1972 constitution.
Gunaratne v
People’s bank
Visuvalingam and Refer facts above.
Others v Liyanage
and Others
Ramakrishniah v. In this Indian case, the validity of a Government order requiring Municipal teachers not to join unions other than
The President, teachers' unions officially approved was challenged. The Madras High Court declared the order void as it constituted
District Court, an abridgement of the right of freedom of association
Nellore
Article 14(1)(d) Freedom to form or join a trade union
Yasapala v the right to strike was not a fundamental right.
Wickramasinghe
Gunaratne v the plaintiff was required by his employer, the People’s Bank to resign from the membership of the Trade Union to
People’s Bank which he belonged, to qualify for a promotion. The Bank did not permit an employee in Grade III and above, to be a
member of a TU. The issue was whether this dictate was a violation of the Petitioner’s fundamental rights. The SC
held with the petitioner. Justice Wanasundera was of the view that if one didn’t hold otherwise, it would erase the
right to form and join trade unions leading to the writing off of TUs which was a formidable movement in the country
and after a long and protracted struggle, fraught with great hardship and suffering, succeeded and which right was
 enshrined in the Constitution
Article 14(1)(e) Freedom to maniest religion or believe in worship, observance, practice
and teaching either by himself or in association with others
Article 14(1)(f) Freedom to enjoy own culture and language either alone or with others
Article 14(1)(g) Freedom of lawful occupation, trade, business or enterprise either by self
or with others
K.M.R. Perera v The Petitioner, who is an Officer of the Sri Lanka Foreign Service [the A prior hearing had been given and
Dharmadasa Foreign Service], filed Fundamental Rights Application No. 4/2017 in procedurally all aspects were fulfilled.
Dissanayake and January 2017 alleging inter alia that the Respondents have violated the Therefore the right was not infringed.
Others Petitioner’s fundamental right to equality before the law and the equal
protection of the law enshrined in Article 12(1) of the Constitution and the
freedom to engage in a lawful occupation guaranteed by Article 14(1)(g)
of the Constitution
Siriwardena and In the interests of national security, and other restrictions under Article The freedom of speech and expression
Others v Liyanage 15(7), freedom of lawful occupation, freedom of speech and other allied including publication is subject to such
and Others rights may be subjected to restriction. restrictions as may be prescribed by law
in the interests of racial and religious
harmony, or in relation to parliamentary
privilege, contempt of court, defamation,
incitement to an offence, national
security, public order and the protection
of public health or morality etc. Law in
this context includes regulations made
under the Public Security Ordinance.
Article 14(1)(h) Freedom of movement and choosing residence within Sri Lanka
Thavaneethan v the petitioners were voters in the Batticaloa district and were eligible to vote at the General Elections of 2001; they
Dayananda lived in uncleared areas controlled by the LTTE. On the day of the elections, the Army officials, presumably on
Dissanayake instruction by higher authorities, prevented the voters in uncleared areas from entering into the areas. This was not
done in Trincomalee district. At the previous election Batticaloa and Vanni had voted against the ruling party whilst
Trincomalee had been pro government. The respondents claimed that the measures to close entry points were taken
under specific powers vested in the armed forces under the PTA. The Court opined that the PTA empowered the
 Minister to make detention orders and restriction orders in respect of particular persons suspected of unlawful
activity. Yet, no provision of the Act would authorize the restriction of movement in general or in respect of
unspecified persons. The Court held that the petitioners’ right to freedom of movement had been violated.
Article 14(1)(i) Freedom to return to SL
Article 14A Right to Information

Right to Constitutional Remedies

Article 17 of the Constitution

the right to apply to the SC in respect of infringement of FR by executive or administrative action. A person may so apply, or a person
through his attorney-at-law.

Palihawadana v AG: 1st application under Article 17

Jayanetti v The Land Reform Commission: Wanasundara J- ‘Article 17 is of the utmost importance not only for securing the safety and
welfare of the people of this country but stands as an impregnable redoubt for protecting the operation of the democratic system of
government in this country.’

Article 126: Jurisdiction of the SC may be invoked and exercised.

In enacting Articles 17 and 126, the framers of the Constitution wished to set up a special machinery for providing a quick and
efficient remedy for the enforcement of fundamental rights against any violation by executive or administrative action. Jurisdiction is
vested with the SC in relation to language rights as well, which are guaranteed by Chapter IV. Note that language rights are not
included in Chapter III. Thus, the right to apply to the SC in respect of an infringement of a language right is a constitutional right but
not a fundamental right.

Lawful restriction to FR

A Constitution declares that fundamental rights and freedoms lays down permissible restrictions in order to maintain a balance
between individual rights and freedoms on the one hand and the interest of the society on the other. The rights and freedoms
represent the claims of the individual, the permissible restrictions represent the claims society.
Article 29(2) of the UDHR- Restrictions are permissible if determined by the law

Article 4 of the ICCPR- Public emergencies which threaten the life of the nation, when state parties can take measures of derogating
from their obligations, as long as they aren’t on discriminatiory means on grounds of s ex, colour, language, religion or social origin
etc.

Absolute Rights- ICCPR

Article 6 Right to life

Article 7 Freedom from torture
Article 8 Freedom from slavery and servitude
Article 11 Freedom from imprisonment for the failure to fulfil a contractual obligation
Article 15 Freedom from retroactive penal legislation
Article 16 Right to recognition as a person before the law
Article 18 Freedom of thought, conscience, religion
Absolute Rights- Sri Lanka

Article 10 The freedom of thought, conscience, religion

Article 11 Freedom from torture
Article 13(3) The right to fair trial
Article 13(4) Freedom from punishment with death or imprisonment except in accordance with the law

Restricitons to Rights- Sri Lanka

Articles 12, 13(1), 13(2) and 14 are subjected to restrictions under Article 15(7)

Restrictions are in “he 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”

Thavaneethan v Dayananda Dissanayake, Commissioner of Elections and Others: ‘Article 15 does not permit restrictions on
fundamental rights other than by plenary legislation – which is subject to pre enactment review for constitutionality. It does not
permit restrictions by executive action (i.e., by regulations), the sole exception permitted by Article 15 (1) and 15 (7) being
emergency regulations under the Public Security Ordinance because those are subject to constitutional controls and limitations…’

Joseph Perera v AG: Article 15(7) permitted only such restrictions as have an intimate, real and rational connection with the object of
the restriction. The SC essentially read in the word, ‘reasonable’ into Article 15 (7) to qualify restrictions.

Miscellaneous Principles

Article 16: All existing written and unwritten laws shall be valid nonwithstanding any inconsistency with fundamental rights

Directives of State Policy

The 1978 Constitution does not permit any restrictions on FR by reference to the Directive Principles of State Policy.

Both the Republican Constitutions contained these to guide law making and governance. Both Constitutions declare expressly that
they do not confer any legal rights and that they are not enforceable in a Court of law. No question of inconsistency with the
Directive Principles may be raised in any Court or Tribunal. Even under the Indian Constitution, which may have inspired ours, they
are not justiciable. They are to set a standard for achievement for the legislature and executive.

Many of them are similar to the social, cultural and economic rights contained in the UDHR. When a constitutional provision is not
clear, the court is entitled to take cognizance of Directive Principles for the purpose of interpreting the Constitution.

The famed judgement regarding the 13th Amendment to the Constitution: the Court emphasized the importance of the Directive
Principles. Whilst the majority opined that these were not legally enforceable, Bills maybe scrutinized to see whether they represent
steps taken in the direction of implementing the programme envisaged by the makers of the Constitution; that they had value in
projecting the aims and aspirations of a democratic government.

Seneviratne v UGC: It is a stated principle of construction that when construing a legal document, the whole of the document must
be considered. Accordingly, all relevant provisions of the Constitution must be given effect to when a constitutional provision is under
consideration and when relevant, this must necessarily include the Directive Principles.

Availability and Enforceability of FR

The Rights guaranteed by Articles 10, 11, 12 (1), 12 (3) and 13 of the 1978 Constitution are available to ‘all persons’ – both natural
and juristic persons

The protections of FR under Article 12(2) and Article 14 are available to Sri Lankan citizens.

Gunaratne People’s Bank per Wanasundara J: While Articl 19 was directed against the state, Courts have been progressively
extending the concept of the State and that it has come to include any institution performing public functions. The People’s Bank was
held to constitute a department of the State.