Fundamental Rights

Enforcement of Fundamental Rights

Chapter III of the Constitution

Article 10-freedom of thought, conscience and religion

Article 11-freedom from torture
Article 12-right to equality
Article 12 (1) – All persons are equal before the law
Article 12 (2) – No citizen shall be discriminated against on the ground of race, religion, language,
caste, sex, political opinion, place of birth or any of such grounds.
Article 13-freedom from arrest
Article 14-freedom of speech, assembly, association, occupation, movement
Article 15-restrictions on FR

Article 10 (Mental element) – Freedom of Thought Conscience and Religion

Every person is entitled to the freedom of thought conscience and religion including the freedom to
have or to adopt a religion or belief of his choice.

Perera v. Weerasuriya
A religious belief need not be logical, acceptable, consistent or comprehensible in order to be
protected.

Does a person have a FR to convert another person to his or her religion?

Christian Sahanaye Doratuwa Case

Can have a religion adopt a religion and propagation is permitted but no one has a right to convert
another person.

Teaching Sisters Case

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The Constitution does not guarantee a FR to propagate religion. Even where propagation is expressly
permitted the entitlement does not extend to the right to convert others.

Article 11 – Freedom from torture

No person shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment

This right is considered as one of the most important and essential rights of a human being. This right
has extended the national status and extended to the international status, which means every country
in the world is bound to protect this right-This right is included in S.5 of the UDHR(Universal
Declaration Of Human Rights)Article 11 has been widely interpreted by the courts using the word
“person” it conveys that this right is awarded to both citizens and non-citizens(foreigners)

There are no clear definitions as to what constitutes torture or cruel or inhuman or degrading
punishments. Torture is described as “any act that causes severe physical or mental pain or suffering.

Amal Sudath Silva V Kodithuwakku

A person was kept in police custody for a few days and physically assaulted severely. Medical
evidence was presented to prove extreme physical torture. Every person in the country is entitled to
this right regardless of whether it is criminal or not.

W.M.K. Silva V the Chairman, Ceylon Fertilizer Corporation

Article 11 not only covers physical violence but mental violence too.
There are no definite methods to describe cruel, inhuman, degrading treatment or punishment. It
depends from case to case.

Greek case
European commission of Human Rights described,” Any act which grossly humiliate an individual
before others or drives him to act against his will or conscience as a degrading treatment. (No need
of physical injuries)

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Adikari V Amerasinghe
A lawyer was assaulted in front of his wife and son. No physical injuries. The court considered the
mental situation of the lawyer’s wife and son, especially the son.

Held-Article 11 is not limited to physical punishment. But includes the physiological aspect too.

Welumurugu V AG
The burden of proof is on a balance of probabilities.

Deshapriya V Weerakoon
Commanding officer was held liable for the torture that was inflicted to the person in his custody even
though it was his subordinate who tortured the person.

Re: Essential Public Service Bill

Imposing mandatory punishments prescribed in law can also amount to inhuman treatment or
punishment.

Bandara V Wickremasinghe
Teacher beating a student in school was held to be a violation of Article 11.

Article 12(1)
Article 12(1)-Equality
All persons are equal before the law
And are entitled to equal protection by the law

Equality before the law (negative concept)

Absence of any special privilege in favor of any individual.

Equal protection by the law (positive concept)

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It talks about equality or treatment in equal circumstances, in other words, equality among equals i.e.
Equality among the people of the same status.

Palihawadana V AG
Among equals the law should be equal and it should be administered equally. The equal protection
applies to both substantive as well as procedural law.

In cases relating to article 12(1) courts have adopted a classification. There are 2 limbs to this
classification.
1. The classification should be intelligible differentia which distinguishes persons from
another group.
2. The differentia should be in relation to the object sought to be achieved.

Perera V UGC
Two A/L examinations were held in one year. The UGC adopted a 70% and 30% ratio. This satisfied
the first requirements 2 groups were clearly identified. The question arose was whether the
classification rationally related to the object sought to be achieved which is to select the best student.

Yasapala V Wickremasinghe
Article 12(1) guarantees that the right to equality is the enemy of arbitrariness.

Palihawadana V AG
A minister’s power to select 1000 from a large group was held not to be a reasonable classification.

Ramapillai V Minister of Public Administration

He couldn’t take promotion on racial grounds.
Held-All persons within the class have equal rights and therefore are not classified under race, caste,
religion etc.…

Article 12(2)

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No citizen shall be discriminated on the grounds of race, religion, language, caste, sex,political
opinions, place of birth or any such grounds.

Article 13(1) – Arrest

Article 13 (1)
• No person shall be arrested except by the procedure established by law.
• Any person arrested shall be informed of the reason for his arrest.

Whether an act amounts to arrest will depend on the circumstances of each case.
S 23(1) of the Code of Criminal Procedure Act No.15 of 1979 states that
1. In making an arrest the person making the same shall actually touch or confine the body
of the person to be arrested.
2. Unless there be submission to custody by words and actions and,
3. Shall inform the person to be arrested of the Nature of the charge or allegation upon
which he is arrested.

Namasivayam V Gunawardene

1. When the police officer asked the petitioner to accompany him to the police station and
took him there the petitioner was in law arrested by the police officer.
2. The petitioner was prevented by the actions of the police officer from proceeding with
his journey in the bus
3. The petitioner was deprived of the liberty of going to where he pleases (Article 14 was
violated)
4. It is not necessary that there should be any actual use of force
5. Threat or force used to procure the Plaintiff’s submission was sufficient.
6. The plaintiff did not go voluntarily

• For there to be an FR violation an arrest has to take place first

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1. Prove that an arrest took place
2. Then prove the FR violation

Piyasiri V Fernando
1. Custody does not, today necessarily impart the meaning of confinement
2. But has been extended to mean lack of freedom of movement
3. Brought about not only by detention but also by threatened coercion
4. Which can be informed from the surrounding circumstances

Sirisena V Perera
“Whether or not a person has been arrested depends not on the legality of the arrest but whether he
had been deprived of his liberty to go where he pleases”

According to procedure established by law

S.32(1) of the code of Criminal Procedure Act No.15 of 1979
S 63 of the police ordinance
S6(1) of the Prevention of Terrorism Act No.49 of 1979

S32(1) of the code of criminal procedure

1. Any person who has been concerned in any recognizable offence
1. Or against whom a reasonable complaint has been made
2. Or reliable information received
Or reasonable suspicion exists of his having been so concerned

Article 14(1)(a)

“Every citizen is entitled to the freedom of speech and expression including publication”

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Every citizen shall have the right of freedom of opinion and expression. This includes the right to
seek, receive, and import information through any media regardless of frontiers. (as stated in section
19 of the UDHR)

This right has been recognized in almost every democratic country in the world. In Sri Lanka it is
included in article 14(1)(a) of the constitution. The courts generally have interpreted this article in a
broad way.

Joseph Perera V AG
Held-Freedom of speech and expression means the right to express one’s convictions and opinions
freely by word of mouth, writing, printing, pictures or any other media. And also by banners,
posters, signs etc…

Amarathunga V Srimal
Freedom of expression extended to terms of expression other than oral or verbal. (Placards, Pickets,
Burning draft cards, Display of banners, Flags)

Waruna Karunathilake V Dayananda Dissanayake

Casting votes at an election is covered under freedom of expression.

Visuvalingam V Liyanage
Freedom of speech and expression incudes freedom of the recipient

Fernando V SLBC
Article 14(1)(a) should not be interpreted narrowly. It includes the right to obtain and record
information.

Restrictions

Environmental Foundation Ltd V UDA

Freedom of speech and expression including publication should be

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1. Meaningful
2. Effective

Freedom of information should be within the scope of Article14(1)(a)

Article 14(1)(a) is subject to several constitutional restrictions mentioned in article 15(2) and 15(7)

Article 15(2)
It can be restricted for
1. Racial and religious harmony
2. Parliamentary privileges
3. Contempt of court (Dissanayake case)
4. Defamation or
5. Incitement to an offence

Article 15(7)
Can be restricted in the interests of
1. National security
2. Public order
3. Protection of public health and morality

Joseph Perera V AG
There is no such thing as absolute and unrestricted freedom of expression.Freedom of expression is
subject to restrictions under article 15(2)and 15(7).

Dissanayake V Jayawardenapura University

Article 14(1)(a)is subject to the qualifications that it would not violate or infringe others rights.
Article 14(1)(e) - (Physical Element)

Every citizen is entitled to the freedom by

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• Himself
• With others

In public or private manifest his religion or belief in

• Worship
• Observances
• Practices and teaching

An aggrieved person is entitled to apply to Sri Lanka under,

Article 17 against-
- An infringement
- Or imminent infringement
- Of a fundamental right
- Caused by
a) An executive action
b) An administrative action

The aggrieved person is entitled to get relief under Article 12

- The Supreme court has the jurisdiction to try all matters relating to
a) Fundamental Rights (Chapter III)
b) Language Rights (Chapter IV)

The term “aggrieved person” has been given a very wide interpretation. It can be,
(i) Legal person
(ii) Public spirited person
(iii) NGO

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When a violation of a Fundamental Right ends with a death, the wife and the children of the
deceased have been given the standing of sue

- Sriyani Silva v Iddamalgoda

- Rani Fernando v OIC of Seeduwa Police Station

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