The rights after
relationship of law to justice and morality is very much a part of
modern day legal life and has three enduring instances of its direct
applicability. Firstly in relation to patently unjust laws that violate
all laws of human conduct, like the Nazi laws that penalised Jews
on the grounds of race, such laws being regarded as "not-law".
Secondly in relation to the so-called Grundnorm cases (Mazimbamuto
Vs Lardner-Burke, 1968, 2 S.A. 284, and 1969, 1 A.C. 645), which on
Kelsenian thinking, postulated a new normative legal order following
a revolution. Thirdly, in relation to the role of the judge in what
are quaintly termed the "hard cases", which arise when the
law and the Constitution is seen to show gaps in its rationale.
Each of these
instances could have their positive as well as negative consequences
as could be seen in the fervency with which adherents of judicial
activism and restraint argue their respective points of view. In
recent times, Sri Lanka has been more preoccupied with fundamental
issues concerning the independence and integrity of the institution
of the judiciary rather than in debating the finer points of a constitutional
provision in terms of its effects on citizens.
process, though we have not degraded itself to the level of confronting
laws of the first kind, the country has come close to interventions
of the second kind during the turbulence of the Kumaratunga administration,
(when threats were made to tear up the Constitution), though thankfully,
these threats were not actually realised. However, we have also
seen the third species of judicial interventions at more positive
Some of these
interventions have been powerful in their impact on political processes
while others have helped to level the playing field to some extent
between rights victims and agents of the state. Nevertheless, the
questions have remained basic; in a country where rights violations
proliferate and neither the executive nor the legislature seems
to care overmuch, what should be the precise duty of a judge when
a victim complains to court? Should a judge intervene in a clear
instance where the legislative scheme is incomplete and run the
risk of crossing the boundary between construction or interpretation
and alteration or legislation? Or should one, as has been famously
said, throw one's hands up and blame the legal draftsmen or Parliament
for its omissions?
For the past
several years, there has been evident a very clear pattern of constitutional
incompleteness in the manner in which victims, if they survive the
effects of severe torture, could complain to the Supreme Court and
most often, obtain redress. However, the same would not be possible
if they die as a result of that torture. This imbalance was due
to constitutional provisions stipulating that complaints of rights
violations could be made only by the victim or an attorney at law
on that person's behalf.
And it is in
this context that the recent majority judgement of the Supreme Court
permitting the wife of a deceased detainee petition court on the
basis that her deceased husband's fundamental rights to freedom
from torture and arbitrary arrest and detention had been violated,
makes interesting reading.
before the court was very clear. This was not a case of the continuance
of an application by the widow of a victim who had died after the
application was filed. If that had been so, it would have been simpler
as the legal representative of the deceased person could have carried
on the application.
was in issue here was the undoubtedly 'hard' question as to whether
the wife or a third party of a deceased person has a right to institute
proceedings under the Constitution, seeking relief for the alleged
infringement of a deceased person's fundamental rights.
this question in the positive, the majority judgement (written by
Shiranee Bandaranaike J. with Chief Justice S.N. Silva agreeing)
draws a causal link between the death of a person and the process
which constitutes the infringement of such person's fundamental
rights whereby any one having a legitimate interest could prosecute
that right. Applying this principle to the facts of the case, Mulle
Kandage Lasantha Jagath Kumara, who was arrested, detained and allegedly
tortured while in police custody, acquired under the Constitution,
the right to seek redress from this court for the alleged violation
of his fundamental rights.
Using the established
legal principle that there is no right without a remedy, the majority
judgement then reasoned that it could never be said that the right
ceased and would become ineffective due to the intervention of the
death of the person, especially in circumstances where the death
in itself is in consequence of injuries that constitutes the infringement.
Otherwise, as was pointedly remarked, it would result in a preposterous
situation in which a person who is tortured and survives could vindicate
his rights but if the torture is so intensive that it results in
death, the right can not be vindicated. In these circumstances,
the widow, K.A. Sriyani was ruled to have a right before court.
appears from the language used by the majority of the court that
even a person other than a widow (as long as that person has a legitimate
interest), could claim such a right. This approach of the court
has close parallels (though not directly referred to in the judgement)
with the manner in which the European Court has interpreted the
meaning of "victim" in Article 25 of the European Convention
so as to include the indirect victim. Thus, close relatives of a
direct victim have been characterised as indirect victims and allowed
standing before the European Court.
judgement by Edussiriya J. meanwhile takes the view that the language
contained in Article 126(2), unambiguously excludes the heirs or
the dependants of the victim as persons who could seek redress.
The right to relief and the right to apply for relief are vested
in the victim alone and are personal rights that must necessarily
die with the victim.
This is a position
that draws heavily from an older judgement of the Supreme Court
in which a majority judgement held that Article 126(2) of the Constitution,
when construed according to the ordinary, grammatical, natural and
plain meaning of its language, gives a right of complaint to the
victim or his or her attorney-at-law and to no other person. (Somawathie
Vs. Weerasinghe and Others [(1990) 2 Sri LR 12). The majority decision
in the instant case, distinguishes Somawathie on the facts of the
case. The broad general principle that it lays down however appears
to go far beyond a mere distinguishing of the Somawathie decision.
It is an additional
point of interest that the dissenting judgement takes the specific
provision in the Draft Constitution of 2000 allowing for public
interest litigation to argue against a liberal interpretation of
Article 126(2) on the basis that the legislature, when enacting
Article 126(2) in 1977, would never have intended the same.
the majority decision, in an overall sense, would be welcomed by
those who had long been arguing for a more liberal interpretation
of the provisions that permit individuals to petition the Supreme
Court for violation of fundamental rights. On the other hand, there
are also those who would agree with the view of the minority that
the Supreme Court is not the proper forum for such complaints.
As the minority
judgement pointed out, the laws of this country adequately provide
for the widow or the other dependants of a deceased person meeting
with the death as a result of a wrongful act of another, to seek
compensation based on loss of support or maintenance in which instance,
compensation will be calculated on evidence. It remains to be seen
whether a continuing conflict over these widely differing points
of view will arise in future cases before the Court.