Focus on Rights

Judicial expansion of the right 'not to be disappeared'
Where constitutional provisions appear to be unyielding, it has long been the duty of conscientious judges to engage in efforts to make the best of such rigidity in order that rights of victims are redressed. The oft worked phrase that the Constitution is a living document gives expression to this most onerous burden cast on those who decide the law and the manner in which it must develop.

In recent times, the omission of the right to life in Sri Lanka's Constitution has been met by judicial decisions granting a lawful heir or dependant of a person who dies in state custody as a result of torture, the right to move court and be awarded relief where the victim is unable to do so personally.

Such are the intricacies of the law that though this expansion may seem commonsensical and naturally logical to many, it took Sri Lanka's Supreme Court several decades to recognise this implied right. This was due, not only to the omission of the right to life in the Constitution but also to the fact that only an aggrieved person or an attorney at law could come before court on the violation of a specified fundamental right, as constitutionally decreed. Both these aberrations were not evidenced in the Indian Constitution enabling lawyers and judges in that country to develop a rich jurisprudence of rights that made its legal system noted throughout the world.

On this side of the Palk Straits, the reality was different, aggravated as this was by a judicial system worked by judges unduly obsessed by colonial notions of what judging was all about as well as the oftentimes casual bypassing of rights related jurisprudence. It was well into the eighties when the old conservatism began to change. From that point onwards also, it took an excruciatingly long one and a half decades to bring about a judicial articulation of an (implicit) right to life.

The decisions in which these principles were articulated in the years 2003 and 2004 are now relatively well known (see Perera vs Iddamalgoda (the Durage Sriyani Silva case) S.C. (FR) No. 471/2000, S.C.M 8/8/2003), per judgement of Justice Mark Fernando and Wewalage Rani Fernando (wife of deceased Lama Hewage Lal) and others vs OIC, Minor Offences, Seeduwa Police Station, Seeduwa and eight others SC(FR) No 700/2002, SCM 26/07/2004, per judgement of (Dr) Justice Shiranee Bandaranayake). These decisions were in the context of the right not to be tortured and thereafter deprived of life.

The objective of this particular analysis is however the recent Supreme Court decision in Kanapathipillai Machchavalavan vs OIC, Army Camp, Plantain Point, Trincomalee and Others (SC Appeal No 90/2003, SC (Spl) L.A. No 177/2003, SCM 31.03.2005, per judgement of (Dr) Justice Shiranee Bandaranayake with Justices N.K. Udalagama and Raja Fernando agreeing) which significantly advances jurisprudence acknowledging the right to life in its application to the right not to be 'disappeared."

The case revolved round an ordinary habeas corpus application lodged in the Court of Appeal by a father who had, along with his two sons, been arrested in a cordon and search operation conducted by the Plantain Point Army camp in 1990. While the father was released thereafter, his sons continued to be kept in the custody of the army camp and thereafter 'disappeared.' This case was one of the legion cases in this regard that are still pending before the Court of Appeal in this country testifying to the misery of past decades.

Particular features of this case however distinguish it from the others. When the Court of Appeal dismissed the applications filed by the father on the basis that the father had not succeeded in discharging the burden of proof laid on him to show that the army officer cited in his petition was in fact, responsible for the arrest and detention of his sons, the matter ought ordinarily have ended there. However, he appealed therefrom to the Supreme Court on two exceedingly novel grounds.

Firstly, he pleaded that there arose a violation of a fundamental right under Article 13(4) of the Constitution ("no person shall be punished with death or imprisonment except by an order of a competent Court"), by a state officer for whose act the State was liable during the hearing of his application before the Court of Appeal.

Thus, the entire matter ought to have been referred to the Supreme Court for determination under Article 126(3) of the Constitution which is to the effect that, where in the course of hearing writ applications in the Court of Appeal, there is prima facie evidence of an infringement of a fundamental right, the Court should refer such matter for determination to the Supreme Court.

Earlier, such an argument could not have been brought as the right to life or, (negatively put), the right not to be deprived of life had not been recognised by the judges. However, recent judicial advances as discussed above had changed the old conservatism. In the wake of this judicial thinking and further reflecting the same interpretative principles, the judges held in the Kanapathipillai Machchavalavan case that a referral from the Court of Appeal to the Supreme Court was constitutionally called for as it was 'beyond doubt' that there was an infringement of Article 13(4) of the Constitution by some state officers at the time that the Court of Appeal made its order.

The Court proceeds to state (at page 10 of the judgement), that "...it is reasonable to conclude that the corpora were kept in the Army Camp with the knowledge and connivance of the Army officers. Hence, Army authorities are responsible to account for the whereabouts of the two sons of the appellant..."

Since there was no evidence that the first respondent officer was responsible for the arrest and detention of the corpora, the State is held responsible for the disappearance of the corpora and ordered to pay compensation and costs in the sum of Rs three hundred thousand in total.

The importance of the decision lies in the fact that relatives of the 'disappeared' persons both in the North and in the South will now be afforded an opportunity to move the Supreme Court to intervene on their behalf in terms of a violation of Article 13(4) of the Constitution despite being unable to directly go before the Court due to the constitutional prohibition that applications in respect of fundamental rights violations must be filed within one month of knowledge of their occurrence.

The applicability of the time bar, (yet again another of the many obstacles placed by the framers of the current Constitution impeding an effective working of the rights chapter in past years), to the instant case was dismissed by court.

For years, networks of families and victims in all parts of the country had been agitating that the phenomenon of disappearances be constitutionally recognised, gravely necessitated for the reason that this was a country which, at one time, recorded the highest number of disappearances in the world.

In its acknowledgement that the right not to be 'disappeared' underlies Article 13(4), the judgement in the Kanapathipillai Machchavalavan will lessen some of this pressure towards immediate constitutional reform incorporating a prohibition against disappearances as a specific right in the Constitution. For this reason, it represents a further judicial advance that is of considerable note.

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