The rights after death
The 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.

During these 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 levels.

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.

The question 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.

However, what 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.

In answering 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.

Indeed, it 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.

The dissenting 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.

Undoubtedly, 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.

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