This presentation only intended to share among the students of the first year,in Faculty of Law, University of Colombo, for their academic purposes.

1. Fundamental Rights in Sri Lanka
C. L. Akurugoda
Lecturer (Probationary)
Faculty of Law

2. What are Human Rights
 “Generally means those rights
without which there ”
 UDHR
 Based on higher norms
 Natural Law School

3. What are FR?
 “Rights become ‘fundamental’ when
they are enshrined in a Constitution.
When incorporated into a Constitution,
they can be altered only in the special
manner applicable to constitutional
amendments ”

4. 1978 Constitution
 Chapter III
 Article 10-14
 Article 15 (Restrictions on FR)

5. Right to Constitutional remedies
 1972 Constitution of Sri Lanka
 There was no mechanism to enforce FR enshrined in
the 1972 Constitution
 1978 Constitution
 Article 17 & Article 126

6. Article 17
 Every person shall be entitled to apply to the
Supreme Court, as provided by Article 126, in
respect of the infringement or imminent
infringement, by executive or administrative
action, of a fundamental right to which such a
person is entitled under the provisions of this
chapter

7. Palihawadana v. AG
 A mere declaration of fundamental rights is illusory
unless there is machinery for their enforcement.
Article 17 guarantees the right to apply to the
supreme court against the infringement or imminent
infringement by executive or administrative action of
any fundamental right to which a person is entitled
under the provisions of chapter III.

8. Jayanetti v. The Land Reform Commission
 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 protecting the
operation of the democratic system of
government in this country.

9. Sriyani Silva v. Iddamalgoda
 If a person is temporarily prevented from making, or
pursuing, such an application, he will certainly be
entitled to complain that his fundamental right under
Article 17 has been infringed. If he is put to death in
order to prevent him-totally and permanently- from
complaining, the question arises whether no one else
could complain.

10. Locus Standi/Standing
 Article 126(2);
‘…an application may be made by such person himself
or by an Attorney-at-law on his behalf’

11. Fernando v. Liyanage FRD (2) 409,418
 “one cannot claim standing in court to
vindicate the constitutional rights to some
third party, however much one may be
interested in that party”

12. Somawathi v. Weerasinghe
 Petitioner does not have locus standi to make an
application on behalf of her husband
 (Literal interpretation)
 See: Kulathunga J
 (Dissenting judgment)---Purposive interpretation

13. Sriyani Silva v. Iddamalgoda
 Next of kin

14. Public Interest Litigations
 Exception to the locus standi
 Group/Class action
 A third party’s right to sue on behalf of a litigant
 Waters’ Edge case
 Eppawala Case
 Kotte kids case

15. Executive or Administrative Action
 See: Article 80 (3)-Judicial Review

16. Kumarasinghe v. AG
Dayananda v. Weerasinghe
 Wrongful exercise of judicial discretion cannot be
questioned in an application under Article 17

17. Jayanetti v. Land Reform Commission
 Article 126 –Executive + Article 4(b)
 Narrow interpretation was rejected
 Executive and Administrative action

18. Saman v. Leeladasa
 Liability of the State was not a primary liability but a
liability as master for an act done by a servant.
 ‘In course of employment’

19. ‘Executive’?
 Parameswary Jayathevan v. AG
 In the classification of governmental powers there are gray
areas of uncertainty, as well as residual and ancillary
powers which, analytically and historically, does not fit
nearly into one of the traditional categories.
 The test
‘must always be whether the impugned act was
‘executive and administrative’ and not whether the
institution or person concerned can be characterized as
‘executive’ (or “governmental” which is often used as if it
were equivalent).

20. Jayasinghe v. AG
 It was contended that disciplinary proceedings taken
(or omitted) by a co-operative society did not
constitute “executive or administrative ” action.
 Fernando J:
In the circumstances, disciplinary action by a co-operative
society-interdiction, framing of charges,
holding inquiries and dismissal- is “administrative” action
within the meaning of Article 126.

21. Karunathilaka v. Dayananda Dissanayake
 Article 35
 It does not exclude judicial review of the lawfulness
or propriety of an impugned act or omission, in
appropriate proceedings against some other person
who does not enjoy immunity from suit.
 Where a person relies on an act done by the President
in order to justify his own conduct, Article 35 does not
shield that conduct.

22. One Month Rule
 Article 126(2);
….he must apply to the Supreme Court within one
month thereof.
Please read :Article 126(3)
What is the difference?

23. Kanapathipillai Machchavallan v Officer –in-charge,
Army Camp, Plantain Point
 The time limit of one month does not
apply to an application for a writ made
to the Court of Appeal and subsequently
referred to the Supreme Court under
Article 126(3)

24. Jayawardene v. AG
 In case of an imminent infringement of a
FR, the one month period begins to run
from the time the petitioner first had an
apprehension that his FR is likely to be
infringed.

25. Namasivayam v Gunawardena
 To make the remedy under Article 126 meaningful to
the applicant, the one month period …should be
calculated from the time that he is under no restraint.
If this liberal construction is not adopted… the
petitioner’s right to his constitutional remedy under
Article 126 can turn out to be illusory. It could be
rendered nugatory or frustrated by continued
detention

26. Saman v. Leeladasa
 Prisoner
 Hospitalized
 …until the Petitioner had knowledge, or could with
reasonable diligence have discovered, that an injury
sufficient to bring him within Article 11 had resulted,
time did not begin to run.

27.  Article 126(4)
“to grant such relief or make such directions as it may
deem just and equitable in the circumstances” in FR
matters.
Wide or Limited?
Relief

28. Sirimal v. Board of Directors of the Co-operative
Wholesale Establishment
 Not to grant extensions
 Decided to retire them
 Violation of Article 12(1)
 There were alternative remedies
 They should not be given relief in terms of Article 12(1)
Held:
Constitutional provisions being the higher norm, they would
prevail over other statutory provisions and therefore, the
petitioners were entitled to seek relief for the alleged
infringement of their FR even in situations where there were
other remedies to be pursued.

29. Rathnasara Thero v. Udugampola
 In my view this is a serious violation of
the FR of a citizen of the country which
calls for the award of substantial
damages. A mere declaration without
more in the form of some penalty…will
not deter such future abuse of FR of
citizens.

30. Sirisena v. Ernest Perera
 Saman v. Leeladasa; only against State?
 Article 126(4) + 4(d)
 126(4) empowers the Court to grant just and equitable relief
against the State and such officers
“Giving relief against individual officers in
addition to the State in appropriate cases would
also help curb any tendency on the part of the
State officer to violate FR in the belief that the
State alone is liable for such violation”

31. Deshapriya v. Municipal Council, Nuwara Eliya
 Fernando J:
“in the circumstances which aggravated the
infringement, it would not be right to assess
compensation at a few thousand rupees,
simply because the newspaper was sold for
seven rupees a copy; that would only be the
pecuniary loss caused by the violation of the
petitioner’s rights of property under ordinary
law ”

32. “we are here concerned with a FR, which not only
transcends property rights but which is guaranteed by
the Constitution; and with an infringement which
darkens the climate of freedom in which the peaceful
clash of ideas and the exchange of information must
take place in a democratic society. Compensation must
therefore be measured by the yardstick of liberty, and
not weighed in the scale of commerce”
2nd respondent was directed to pay the compensation

33. References
Wicramarathne, J. Fundamental Rights in Sri Lanka, 2nd
edition, Stamford Lake Publication, 2006