Both the Constitution of Sri Lanka and that of the United States highlight the right to life and liberty. While one emphasizes inherent entitlement, the other underscores due process and legal safeguards. Together, they contribute to our understanding of human rights protection.
by Ruwantissa Abeyratne
“Originalism gives the Constitution the capacity to be a continuing source of legitimacy for courts – one that cannot easily be dismissed as the imposition of a court’s own values.” ~ Supreme Court Justice Antonin Scalia
In Sri Lanka, there is, according to the 22nd Amendment to the Constitution of the country – which The Parliament passed on 21 October 2022 – a new right that has emerged: the right to life and personal liberty. Accordingly, Article 12 of the Constitution is amended by adding a sub article immediately after Sub Article (1) thereof to read as (1)A. i.e. Every person is entitled to (the) right to life and personal liberty. With this addition, Article 12.1 of the Constitution would read: 12. (1) All persons are equal before the law and are entitled to the equal protection of the law. (1)A. Every person is entitled to (the) right to life and personal liberty. In other words the right to life and personal liberty are entitlements to equal protection for every person.
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| Sri Lankan youth during the in-famous 'Aragalaya' [Photo: Special Arrangement] |
The entitlement to life and personal liberty (which can be taken as synonymous with freedom and autonomy) stands as a cornerstone of human rights, acknowledged across various international agreements, national charters, and legal frameworks globally. This entitlement encompasses two interrelated principles:
Firstly, the right to life signifies the inherent entitlement of individuals to live without unwarranted interference or deprivation from state authorities or other individuals. It safeguards against unjust actions such as arbitrary killings, executions without due process, genocide, or any form of violence. Widely regarded as the bedrock of human rights, the right to life forms the basis for the enjoyment of other liberties and freedoms.
Secondly, personal liberty encapsulates a spectrum of liberties and entitlements allowing individuals to lead autonomous lives free from undue coercion, restrictions, or oppression. These encompass the freedom to move, to express thoughts and beliefs, to practice religion, to assemble and associate, and to maintain privacy. Personal freedom empowers individuals to pursue their interests and convictions without unwarranted constraints imposed by governmental or non-governmental entities.
Together, the entitlement to life and personal liberty underscore the inherent dignity and value of every human being, laying the groundwork for a fair and impartial society. These rights act as crucial bulwarks against arbitrary state authority, repression, and mistreatment, ensuring that individuals can live with dignity, self-determination, and reverence for their fundamental human rights.
This subject is addressed in a broader context in the United States Constitution. The Fifth Amendment states: “No person shall be deprived of life, liberty, or property, without due process of law.” This clause is often referred to as the Due Process Clause and serves as a safeguard against arbitrary deprivation of life or liberty by the government. It ensures that individuals are entitled to certain procedural protections before the government can deprive them of these fundamental rights.
Additionally, the concept of the right to life and liberty is further reinforced and elaborated upon in various interpretations by the judiciary, particularly through landmark Supreme Court decisions. These interpretations have expanded and clarified the scope of individual rights protected under the Constitution, including rights related to life and liberty.
The Difference in Nuance
The concepts of the right to life and personal liberty are fundamental pillars of human rights discourse, embodying the intrinsic dignity and autonomy of every individual. While these principles are often expressed in legal and constitutional frameworks, subtle differences in language can shape our understanding of their significance. There are nuances in the two provisions that convey similar ideas but offer distinct perspectives on the protection of these rights.
In the Sri Lanka context “Every person is entitled to the right to life and personal liberty,” encapsulates the notion of inherent entitlement to these fundamental rights. By asserting that every individual is entitled to the right to life and personal liberty, the statement underscores the universality and inalienability of these rights. The use of the word “entitled” emphasizes the inherent nature of these rights, suggesting that they are not granted by authorities but are inherent to human existence. Furthermore, the emphasis on “personal liberty” highlights the importance of individual autonomy and self-determination in the enjoyment of rights.
In contrast, in The United States Constitution “No person shall be deprived of life, liberty, and property unless under due process of law,” places greater emphasis on the procedural aspect of protecting individual rights. Rather than focusing solely on the entitlement to rights, this statement underscores the importance of legal safeguards and due process in ensuring their protection. By asserting that individuals cannot be deprived of their rights without adherence to due process of law, the provision emphasizes the necessity of legal procedures and safeguards in safeguarding against arbitrary deprivation. The inclusion of “property” alongside “life” and “liberty” broadens the scope of protection to encompass other essential rights and interests.
Some Legal Considerations
The most interesting consideration in this regard would be how the courts in Sri Lanka would interpret this right. Would they go beyond the entitlement and read in the due process clause as well? Would personal liberty encapsulate the right to property? Would they strictly interpret the provision textually and indulge in originalism? Would the celebrated “core and penumbra” concept be applied?
Justice William O. Douglas introduced the concept of “core and penumbra” in his concurring opinion during the significant Supreme Court case Griswold v. Connecticut (1965). Douglas J. argued that although the First, Third, Fourth, Fifth, and Ninth Amendments didn’t explicitly address privacy rights, they implied a broader set of rights. These implied rights, forming a “penumbra,” extended beyond the explicit protections outlined in the Constitution. According to Douglas J., this penumbral zone safeguarded certain personal freedoms, including marital privacy, as highlighted in Griswold v. Connecticut. The core and penumbra theory has since played a notable role in debates over constitutional interpretation, particularly in discussions about expanding rights not directly stated in the Constitution.
On the other hand, originalism is a judicial philosophy that highlights the interpretation of legal texts, particularly constitutions, based on their original meaning when enacted. Proponents argue that this approach maintains the rule of law, democratic legitimacy, and respects the intentions of the framers. Originalism can manifest in various forms, such as original intent, original public meaning, and original understanding.
Original intent seeks to discern the specific intentions of the framers by analyzing historical records like debates and drafts. Original public meaning focuses on understanding the text as it would have been understood by the general public at the time of enactment, regardless of specific intentions. Original understanding aims to uncover the collective understanding of the text’s provisions among those who ratified or accepted it.
Textualism serves as an approach to statutory interpretation that prioritizes the precise wording of a law, concentrating on the straightforward meaning of its terms as they would have been comprehended by an ordinary person at the time of its promulgation. Advocates of textualism argue that this method fosters predictability, confines judicial discretion, and upholds democratic ideals by adhering strictly to the text. Textualists typically oppose resorting to legislative history or extraneous sources, asserting that such sources are less dependable and undermine the integrity of the legal system.
At the core of textualism lies the “plain meaning” rule, which asserts that if the language of a statute is clear and unambiguous, courts must apply it as written, without resorting to legislative history or other external aids. Proponents of textualism contend that this approach ensures predictability and safeguards the rule of law by restraining judicial discretion and preventing judges from imposing their personal policy preferences.
Justice Scalia believed that originalism offers a reliable and ethical approach to construing the Constitution. It guarantees that judicial rulings stem from the language and initial intentions of the Constitution’s authors, rather than the subjective inclinations of individual judges. Scalia J. contended that by staying true to the Constitution’s original intent, the judiciary could uphold its credibility and sidestep allegations of judicial activism or exceeding its mandate.
My Take
While both Constitutions affirm the importance of the right to life and personal liberty, they offer distinct perspectives on the protection and realization of these rights. The first statement emphasizes the inherent entitlement of individuals to these rights, highlighting their universal and inalienable nature. In contrast, the second statement underscores the necessity of due process and legal safeguards in protecting against arbitrary deprivation. Together, these statements enrich our understanding of the complex interplay between rights, entitlements, and procedural safeguards in safeguarding human dignity and autonomy.
Dr. Abeyratne teaches aerospace law at McGill University. Among the numerous books he has published are Air Navigation Law (2012) and Aviation Safety Law and Regulation (to be published in 2023). He is a former Senior Legal Counsel at the International Civil Aviation Organization.
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