In Memory of Justice Kulatunga

(June 05, Colombo, Sri Lanka Guardian) Former Supreme Court judge K.M.M.B Kulatunga passed away on last Thursday (June 03). During his retirement he often wrote critically about what he called “disorder in Sri Lanka”. We reproduce one of his articles below as tribute to him. - Eds.

OBSERVANCE OF HUMAN RIGHTS IN SRI LANKA SINCE INDEPENDENCE, IN ITS HISTORICAL SETTING

( This article was initially written in 1998. It is reproduced from “Disprder in Sri Lanka” which included several of his writings)

by K.M.M.B. Kulatunga

My choice of this subject is due to the fact that what is vital to the well being of the people is the observance of human rights rather than its theory. Over emphasizing theory as against practice of human rights can create contempt for the concept, itself even if fundamental rights are entrenched in the constitution

It is my impression that we in Sri Lanka have been inclined to make human rights education elitist by engaging in endless "sermons without giving sufficient consideration to the ground situation at grassroot level. This article is designed to bring about a change of attitude in those who are interested in the advancement of fundamental rights and freedoms.

Attainment of independence; Establishment of the Republic

Sri Lanka attained independence with effect from 4th February 1948. The basic provisions of the Constitution which came into effect are contained in the Ceylon (Constitution) Order in Councill946 (The Soulbury Constitution), Fundamental rights were not entrenched in that Constitution as it is understood now. Even so, except for the communal riots of 1958 (which was provoked by political actions) and two attempts to overthrow the lawfully constituted government, the quality of life was comparatively better than the situation which developed particularly after the establishment of The First Republic in 1972 and the displacement of the Soulbury Constitution. There are two significant features which characterise 50 years of Independence in Sri Lanka. Firstly, for about 40 years the country has been under Emergency Rule; secondly, fundamental rights have been entrenched in the Constitutions of the 1972 and 1978 viz. for a period of 26 years during which period also there has been continuous rule by Emergency Regulations.

Incidence of violation of human rights

From 1989 to April 1996 during my tenure as a Judge of the Supreme Court I handed down 210 judgments of which 110 related to fundamental rights complaints in which relief was granted. 30 of them were infringements of the rights to freedom from torture and the freedom from unlawful detention and arrest. About 20 were violations of the right to freedom from unlawful detention and/or arrest. The other cases involved mostly violation of the right to equal protection of the law. I presume that my brother judges also handed down a large number of such judgments.

It would appear that even after the change of administration in 1994 the incidence of violation of fundamental rights has not ceased. Judgments of the Supreme Court have found police officers guilty of torture and unlawful detention. Violation of the right to equality and equal protection of the law also appears to continue unabated. These observations are made purely on the basis of decided cases. But all such violations are not brought before the Supreme Court in view of the fact that there are many victims who do not have the means or the resources to do so. Consequently the incidence of violation of fundamental rights may well be much more than what the decided cases indicate.

Entrenchment of human rights in 1972 & 1978 Constitutions

The most basic and important human rights contained in the Human Rights Covenants acceded to by Sri Lanka were entrenched in the 1972 Constitution. There was no express provision in that Constitution vesting jurisdiction in any particular court to adjudicate complaints of infringement of fundamental rights. However, it is my view that fundamental rights entrenched in the 1972 Constitution were enforceable in the sense that a violation of such a right could be made the legal basis for seeking appropriate relief from the original or appellate courts, vide Gunaratna Vs People's Bank (1986) 1 SriLR 338.

1978 Constitution also entrenched fundamental rights (except for the right to life) and vested the exclusive jurisdiction in the Supreme Court to hear and determine complaints of infringements of those rights by executive or administrative action. Violations purely attributable to private persons corporate or unincorporate have to be adjudicated upon in the first instance presumably by the original courts.

Catalogue of human rights

The Constitutions of 1972 and 1978 both entrenched substantially the same rights with the difference that in the latter firstly, there is no reference to the right to life and secondly, the rights are set out in more elaborate language. Vide Article 18 of the 1972 Constitution and Articles 10-14 of the 1978 Constitution. A catalogue of these rights are as follows:

1. Right to life.

2. Freedom of thought conscience and religion.

3. Freedom from torture.

4 Right to equality and equal protection of the law.

5 Freedom from arbitrary arrest detention and punishment and prohibition of retroactive penal legislation except in relation to acts or omissions which are criminal according to International Law; this freedom includes the right to a fair trial and legal representation in a criminal case and the rule that a person is presumed to be innocent until he is proved guilty.

6 Freedom of speech, assembly association, religious observance and teaching; freedom to enjoy and promote one's culture and to use one's language, freedom to engage in any lawful occupation, profession, trade, business or enterprise; freedom of movement and of choosing residence within Sri Lanka; and freedom to return to Sri Lanka. Article 15(l)-(8) sets out the permitted restrictions on fundamental rights.

Note

The freedom to engage in any lawful occupation, profession, trade, business or enterprise was not a right included in the 1972 Constitution. Articles 7-11 of the 1972 Constitution and Articles 18- 25 of the 1978 Constitution set out the provisions relating to language.

Aricle 17 read with Article 126 of the 1978 Constitution entitles a person to seek redress from the Supreme Court in respect of an infringement or imminent infringement of a fundamental right by making an application to the court personally or by an Attorney-at-law.

Is there a material difference between the present situation where upon the proof of an infringement of a fundamental right specific relief is available and the period when no such relief was available. Were human right safeguarded by common law and by statutes even during that period? Was the evidence of violation of human rights prior to 1972 as high as it is in the modern times? If not what is the cause of regular and persistent violation of human rights which is the current experience, despite the entrenchment of human rights in the Constitution?

Soulbury constitution

Sir Ivor Jennings who drafted many of the provisions of the Soulbury Constitution advised against the inclusions of a Bill of Rights in the Constitution. He said:

“In Britain we have no Bill of Rights: we merely have liberty according to law, and we think-truly, I believe-that we do a job better than any country which has a Bill of Rights or a Declaration of the Rights of the Man"- Approach to self-government (1958) pg-20.

The Soulbury Commissioners themselves believed that fairness in the administration, specially as regards minority rights could best be left to the good sense of the majority community as a matter of trust subject, however, to the Constitutional safeguards included under Sec.29(2) of the Soulbury Constitution, vide Report of the Commission on Constitutional Reform (1945) pg.50. This approach clearly emphasised the importance of observance of human rights as against mere entrenchment..

Safeguards against discrimination

Sec.29(l) of the Soulbury Constitution vests the power in Parliament to make laws for the peace, order and good government of the Island. Sec.29(2) provides:

“No such law shall

(a) prohibit or restict the free exercise of any religion;

or

(b) make persons of any community or religion liable to disabilities or restrictions to which persons of other communities or religions are not made liable;

or

(c) confer on persons of any community or religion any privilege or advantage which is not conferred on persons of other communities or religions; or

(d) alter the constitution of any religious body except with the consent of the governing authority of that body.

Sec.29(3) provides "Any law made in contravention of subsection (2) of this section shall, to the extent of such contravention, be void."

It is significant that the above provisions guaranteeing rights in relation to religion and equality and equal protection of the law were made before the Universal Declaration of Human Rights adopted in 1948 and the 1966 International Covenants on Human Rights the basis on which the fundamental rights provisions of the 1972 and 1978 Constitution were formulated.

The said provisions were directed to safeguard the minorities. Jennings explains that' ……………… a minority is not necessarily a racial minority. It may be based on race, caste, religion, economic, interest, or pure politics which were in Ceylon important for election purposes-"Constitution of Ceylon” Jennings pg.44.

Statutes and judicial decisions on human rights

Whilst Sec.29 of the Soulbury Constitution thus safeguards the rights which were apprehended by the minorities as threatened, there are many statutes and judicial decisions both before and after independence which protect all the core rights which have since been entrenched in human right treaties. Since space does not permit reference to all of them I shall refer the reader to a few instances.

Relevant statues

1. Kandyan Convention 1815 (Cap.390) prohibited every species of bodily torture (Sec.6), whilst the Declaration of British Sovereignty 1818 (Cap.391) requires that punishment can only be inflicted according to law. It also assured equal rights of every Kandyan subject and security of life, liberty and property, irrespective of class and the Rule of the Law(Sec.7).

2. Slavery was abolished by Ordinance No.20 of 1844 (Cap.75).

3. Police Ordinance No.16 of 1865 (Cap.53). Sec.65 requires a suspect to be produced before a Magistrate within 24 hours of his arrest. A breach of this requirement is an offence [vide Sec.82(f)]. In terms of Sec.82(h) inflicting unwarrent violence to persons in police custody is an offence.

4. Penal Code No.2 of 1883 (Cap.15) vide Secs.290, 291,291A offences relating to religion and Sec.293 onwards-offences against human body and offences affecting life.

5. Criminal Procedure Code No.15 of 1898 (Cap.20) which regulates the conduct of the police officers in respect of arrests and requires the production of a suspect before a Magistrate within 24 hours from arrest. The Code also makes provision for ensuring a fair trial to a person charged with an offence.

6. Trade Unions Ordinance No.14 of 1935 (cap.138).

7. Prevention of Social Disabilities Act No.21 of 1957.

Judicial decisions

1. King Vs Tajudeen 6 NLR16

Several police officers were convicted of causing grievous hurt to a person whom they had arrested on a false charge. The man was subjected to torture. Bonser CJ. upholding the conviction and the sentence of 9 months rigorous imprisonment against the 1st accused described him as a "precocious scoundrel"; His Lordship opined that violence used by a police officer ought to be severely punished.

2. In Re Mark Antony Bracegirdle case 39 NLR 193.

The Supreme Court (Abraham CJ. presiding) upheld the Rule of the Law and the concept of the liberty of the subject when it held that the Governor's order for deporting Bracegirdle was invalid as the precondition for such order namely a state of emergency did not exist.

3. Muthusamy Vs Kannangara 52 NLR 324

Corea Vs The Queen 55 NLR 457

Gratien J. held that a suspect is entitled to be informed of the reason for his arrest and the failure to do so renders the arrest unlawful.

4. In re Wickramasinghe 55 NLR 511

Gunasekera J. said that Judges and courts are open to criticism provided that nothing is said that scandalises the court by acts calculated to impair the administration of justice.

5. Queen Vs Tennakoon Appuhamy 60 NLR 313 The Court of Criminal Appeal (per Basnayake C J.)

quashed the conviction of accused who had been indicted with housebreaking by night and theft.

The court found that Inspector Egodapitiya had subjected the accused to torture and cruel, inhuman treatment. Basnayake CJ. said that the inspector's conduct called for "a full dress inquiry by an independent tribunal”.

6. Liyanage Vs The Queen 68 NLR 265 (RC.)

The Privy Council quashed the conviction of several accused who had been found guilty of attempting to overthrow the government. The acquittal was based on the ground that criminal legislation enacted in aid of the prosecution was ad hominem and ex post facto and amounted to a legislative judgment; the impugned legislation was therefore, ultra vires and invalid.

7. Suntharalingam Vs Inspector of Police, Kankesanthurai 74 NLR 457 (RC.)

Held that the prevention of a low caste Hindu from entering a place of religious worship was an offence under the Prevention of Social Disabilities Act.

8. R.RWijesiri Vs The Attorney General (1980) 2 SriLR 317

Held that the provisions of the Code of Criminal Procedure Act relates to the investigation of offences and the holding of a non-summary inquiry before indictment were designed to safeguard persons against arbitrary action.

What went wrong?

In the background I have described above, the Soulbury Constitution with the separation of powers between the legislature, the executive and the judiciary and Sec.29 provided an ideal foundation for the establishment of a secular state and a democratic system of government. This, however, was not achieved because the Westminster system of government based on one party rule is singularly unsuited in a multi ethnic, multi religious third world country. From the inception, the government was predominantly Sinhala and participation of Tamils or Muslims was possible only if they joined a Sinhala Party or by the grace of the Party in power…

Public service

Under the Soulbury Constitution the public service functioned reasonably well as it was not politicised. The Manual of Procedure prohibited public officers from engaging in political activity except voting at elections.

Power sharing in the executive

At the 1947 Parliamentary elections the bulk of the Sinhala and Tamil speaking communities contested as members of political Parties. The UNP (predominantly Sinhala) obtained 42 seats; Marxist parties (predominantly Sinhala) 18 seats; Tamil Congress and Ceylon Indian Congress .3 seats; Labour party 1 seat; Independents 21 seats. Mr.D.S.Senanayake formed a Cabinet of Ministers consisting of 11 UNP members, one Labour member (a Sinhala) and two Independents (Tamils). The executive so formed was not proportionately representative of the party membership elected by the voters. The situation thus created and which prevailed for 50 years resulted in a lack of power sharing in the executive government. Consequently we have a sovereign State in which all the communities are not sovereign partners. This was felt particularly by the minorities.

Discriminations leading to disorder

Jennings drafted the 1946 Constitution according to the British tradition. So he cannot be blamed for failing to provide power sharing in the executive government at the centre. On the contrary we must blame our leaders for their parochial attitude. What is more, two farther measures which were adopted paved the way for the current disorder including human rights violation in Sri Lanka,

1. Citizenship Act 1948. Even though the Privy Council in Kodakampillai Vs Mudanayake 54 NLR 433 held that it was not ultra vires the Constitution, the Act did disenfranchise a large number of persons of Indian origin who had exercised franchise since 1931. Successive governments had to take legislative action to correct the injustice so inflicted.

2. Language problem. If Sinhala and Tamil were compulsorily taught in schools after Independence, any citizen of whatever race would have been competent and eligible to assume any office in any part of the country on the basis of equality. Instead the UNP and the SLFP both hastened to make Sinhala the Official language in their rivalry for gaining votes. This gave rise to a counter campaign by the Tamils, communal riots, disorder and Emergency Rule.

Era of the first and second republic

Whilst there is no objection to the entrenchment of fundamental rights in the Constitution, I feel that such entrenchment in the 1972 and 1978 Constitutions as well as the accession to the 1966 Human Rights Covenants and the First Optional Protocol to the ICCPR were political gestures wittingly or unwittingly designed to act as a palliative to the injustices committed by successive administrations. We have failed to understand the true issues affecting Sri Lankans; the two main Sinhala Parties have had the monopoly of governmental power. Each party when it is in power would discriminate against its opponents setting the wrong example to the administrative services down below.

Politicisation of the process of government

My conclusion is that the government at the Centre has been politicised by the enthronement of one Party rule; the public service has been politicised since 1972 by the conferment of wide political rights on the public officers; and local government has been nullified by political interference on the basis of Party, depending on which Party is in power. Until this system, of government is replaced by a system where all communities become sovereign partners in a sovereign government, and cultural integration is established by abolishing the language barrier, the present disorder will continue; and violations of human rights will increase despite constitutional provisions safeguarding such rights. Mere discussions and political deliberations will not bring about any improvement in the current situation.