The document discusses the judicial approach to ensuring socio-economic rights like education in Sri Lanka. It notes that while the courts have used Article 12(1) of the constitution to protect educational rights at times, education is still not explicitly recognized as a fundamental right. The document examines several court cases where the judiciary has interpreted the constitution creatively to expand access to education, but argues the courts have not fully established education as a concrete right or used precedent consistently. It concludes the judiciary could argue it has sovereignty to establish education as a fundamental right based on other constitutional articles.

1. Judicial approach to ensure socio-economic rights of children
through Constitutional interpretation in Sri Lanka with
special reference to Right to Education
C.L.Akurugoda
Lecturer (Probationary)
Department of Public & International Law
Faculty of Law

2.  Introduction
 Objectives of the presentation
 Theoretical background
 Results and findings
 Conclusion
Outline of the Presentation

3.  Right to education is one of socio-economic rights
which basically creates the voice through which other
rights can be claimed and protected.
 Free education policy since 1947
 Right to education is not a Fundamental Right (FR) in
Sri Lanka
Introduction

4.  Activism of apex court in Sri Lanka
 Article 12(1)
 “All persons are equal before the law and are entitled to
the equal protection of the law ”
Creative role of the Supreme Court

5.  Though, in time to time the judiciary has used Article
12(1) of the 1978 Constitution to protect educational
rights of children, the right to education is yet to be
recognized explicitly in the country.
 Arguably, still the judiciary has failed to substantiate
the discourse on the right to education in a sustained,
systematic manner from the perspective of children
and the complexity of their status as citizens.

6.  Examine and analyze the effectiveness of judicial
approach towards ensuring and protecting right to
education through creative interpretation
 Justify the argument for granting right to education as a
FR through the constitution.
Objectives of the research

7.  Natural Law School
 Social Contract
 Article 03;
“In the Republic of Sri Lanka sovereignty is in the
People and is inalienable. Sovereignty includes the
powers of government, fundamental rights and the
franchise. “
Theoretical background

8.  Article 04 (c);
“the judicial power of the People shall be exercised by
Parliament through courts, tribunals and institutions
created and established, or recognized, by the
Constitution, or created and established by law,… ”

9.  Sri Lanka has a tradition of written constitution.
 When there is a written constitution, it is believed
that the law of the land should be based on the
supremacy of the constitution.
 Hence, interpretation of the constitution will be
directed at ascertaining the fundamental values
inherent in the constitution.
Results and findings

10.  There are three traditions in the interpretation of the
FR provisions in the constitution.
 Bureaucratic
 Liberal
 Social justice
This third approach requires judges to confront issues of
social justice, including structural reforms, equality, social
and economic deprivation and the rights of marginalized.
Justice Bagawathi

11.  “ the complete eradication of illiteracy and the
assurance all persons of the right to universal and equal
access to education at all levels.”
Article 27 (2)(h)

12.  Under the Directive principles of State policy , State
has pledge to realize objectives which are spelled out
in the constitution, in establishing a democratic
socialist society.
 But, Sri Lankan constitution explicitly states that the
rights recognized as Directive principles of State
policy are not justiciable.
Justiciable?

13.  Whether district quota system is a violation of FR
(Art:12(1))
 The commission relying on Article 27 (2)(b) and(h) of
the Constitution claimed that it was entitled to
impose the 5 per centum district-wise selection so as
to make available the limited number of places in the
universities to as wide a number of qualifying
candidates as possible from various parts of the
country so that access to higher education provides by
the State will be distributed equitably and also in
accordance with the national interests and policies.
Seneviratne and another v. UGC
(1978-79-80) 1 SLR 182

14.  In this case also, court makes a reference to the value
of education in a life of a person and its value for self
realization of the individual .
 But, did not recognize right to education as an
independent right but rather held that Article 12 (1)
was violated in the given circumstances.
Premalatha v. De Silve
SC App. No.334/2002 SCM 25.11.2002

15.  “Education is a companion which no misfortune can
depress, no crime can destroy, no enemy can alienate,
no despotism can enslave. At home a friend, abroad an
introduction, in solitude a solace, and in society an
ornament. It chastens vice, it guides virtue, it gives at
once, a grace and government to genius. Without it
what is man? A splendid slave, reasoning savage”
Karunathilaka and another v. Jayalath de Silva and
another
(2003)1 SLR 35

16. Haputhantirige v. Karunawathie
SC (FR) No.10/2007 SCM 30.07.2007

17.  “Therefore although there is no specific provision
dealing with the Right to Education in our
constitution as such in the Universal Declaration of
Human Rights, the said right has been accepted and
acknowledged by our courts through the provisions
embodied in Article 12 (1) of the constitution. ”
Visal Bashitha Kavirathne and others v.
W.M.N.J.Pushpakumara and others
(Z-Score case)
SC. (FR) 29/2012
SC FR

18.  There are a number of cases where the judiciary has used
their creative role of interpretation in expanding the
canvas of the article 12 (1) of the present constitution to
ensure Right to education in Sri Lanka. Despite this
positive move of judiciary, it can be observed that the
judiciary has taken a protective method to not to declare
the right to education as a concrete right in Sri Lanka.
Further, it can be argued that the judiciary has not gone
beyond the purposive approach in cases related to rights
of education of the citizens and it has delivered judgments
depending on the facts of the each case rather than
focusing on establishing a norm which can be used as a
precedent.
Conclusion

19.  In light of Article 3 and 4 (c) of the present Constitution it
can be argued that judiciary also exercise the sovereignty
of the people. Hence, the Judiciary has the power to
establish a law relating to right to education in Sri Lanka. In
doing that the judiciary can use the light of article 12 (1), 27
(2) (h) and 27 (15). Further, it is essential to interpret the
Constitution as a living document rather than treating it as
a document which impose restrictions on the organs of the
state.