‘Human rights’, once a theoretical concept debated among philosophers, has today become a phenomenal force which has even been given priority over sovereignty of states. All major religions of the world recognise at least some forms of these rights – the supremacy of morals and victory of good over evil. Human rights in the modern context may be defined in the most general of terms as those rights without which there can be no human dignity. The milestone document recognising Human Rights in the world remains the Universal Declaration of Human Rights (UDHR) adopted by the United Nations General Assembly on 10 December 1948 at the Palais de Chaillot, Paris.
Human Rights Vs. Fundamental Rights
While ‘human rights’ remains a global concept subject to debate on its universal applicability due to the inherent diversity of mankind ‒ a debate on which entire books could be written ‒ the term ‘fundamental rights’ condenses and distills the broad spectrum of Human Rights into those rights which are voluntarily accepted by any one country and assured to its people. Fundamental rights are therefore those rights which are guaranteed by a constitution of a country to its citizens.
Fundamental Rights Of ‘Citizens’ Of Sri Lanka: What, Who, And Why?
The Fundamental Rights guaranteed to people of Sri Lanka are enshrined mainly in the 1978 Constitution of the Democratic Socialist Republic of Sri Lanka which in its preamble states:
“…assuring to all Peoples Freedom, Equality, Justice, Fundamental Human Rights and the Independence of the Judiciary as the intangible heritage that guarantees the dignity and well-being of succeeding generations of the People of Sri Lanka and of all the People of the World, who come to share with those generations the effort of working for the creating and preservation of a Just and Free Society.”
Article 4(d) of the Constitution further requires that these fundamental rights are “respected, secured and advanced by all organs of government and shall not be abridged, restricted or denied, save in the manner and to the extent hereinafter provided…”
In essence, every entity or person executing a public duty ranging from a Police officer to a Minister MUST recognise these rights and a violation is actionable in Law.
It is important to note that the Constitution of Sri Lanka makes a distinction between ‘persons’ and ‘citizens’ on the basis of citizenship (and legal personality) of an individual, granting a ‘citizen’ more fundamental rights than it does to any ‘person’ who is not a citizen. For the purpose of simplicity, this article will focus on the rights available to citizens.
In addition, the International Covenant on Civil and Political Rights (ICCPR) Act, No. 56 of 2007 is an important piece of legislation which grants further rights to any person in Sri Lanka and is a result of Sri Lanka acknowledging the international call for increased recognition of rights of people by nations. Many other legislation, laws, and bylaws exist which directly and indirectly grant further rights which are discussed briefly below
Fourteen Rights of Citizens
1. Freedom of thought, conscience and religion
“Every person is entitled to freedom of thought, conscience and religion, including the freedom to have or adopt a religion or belief of his choice.”
Guaranteed by Article 10 of the Constitution, every person is entitled to have and adopt any religion or belief of his/her choice. Freedom of conscience allows any person to freely think his own thoughts and to have his own opinion about religion and morality.
However, the controversy arises when discussing the question of “converting” others into their own religions and “propagating” a religion. In the Supreme Court Determination of A Bill titled Christian Sahanaye Doratuwa Prayer Centre (Incorporation), the Court was of the view that Article 10 does NOT guarantee a fundamental right to a person to propagate a religion (unlike in India). Therefore, it can be said that enticements, undue influence, allurement etc., for a person to join another religion is not a fundamental right granted to any person. However, this position is subject to debate a number of cases are pending before the Supreme Court which may develop this position further ‒ especially since Article 14(e) of the Constitution guarantees the right of a citizen to “manifest his religion, belief or worship”.
2. Freedom from torture
“No person shall be subject to torture or to cruel inhuman or degrading treatment or punishment.”
This Article is mainly applicable in the case of persons being subject to torture/ harassment at the hands of law enforcement officers. A use of undue and disproportionate force by a police officer to arrest a person, to disperse a protest etc., are possible scenarios where this fundamental right may be violated. There can be no restriction of this right.
While proof of such a violation may be difficult to obtain owing to advanced torture methods which do not always leave physical marks, allegations of police officers violating this right can be heard on a regular basis and as a general principle, any injuries suffered by a person while in custody of a police officer in the absence of evidence that they were inflicted in the course of arrest, were self-inflicted or were inflicted by some other person is strong evidence of torture. A police officer must always use the minimum force required to arrest a person and any disproportionate use of force in the course of arrest may also be a violation of this fundamental right.
This fundamental right may also be applied in cases of severe sexual harassment, mental torture, etc., of a person by any state entity.
3. Right to equality
“Article 12: (1) All persons are equal before the law and are entitled to the equal protection of the law
(2) No citizen shall be discriminated against on the grounds of race, religion, language, caste, sex, political opinion, place of birth or any one of such grounds…”
One of the most important rights found in the Constitution, the right to equality has many aspects. In general, every similarly circumstanced person has an equal status before the law and cannot get any special or discriminatory treatment. However, there can be reasonable distinction between different classes of person such as the President (who is immune from suit), Members of Parliament, Judicial Officers etc., which must be reasonable and justified.
This right also covers everyday situations such as the right to have an equal opportunity for promotion within a government department, admissions to school, fairness in exams, etc.
The freedom from discrimination on any grounds is a vital right to Sri Lanka, especially in its path towards reconciliation. The State can, however, classify persons and have different rules applying to such different classes. Such classification must be based on intelligible differentia that distinguishes persons or things that are grouped together from others left out of the group and the differentia must have a rational relation to the object to be achieved. For example, disabled persons can have different laws applicable to them when applying for a job as long as these laws are reasonable.
This article specifically prohibits any person from being discriminated on the grounds of race, religion, language, caste, sex or any other such ground in relation to access to shops, public restaurants, hotels, places of public entertainment, and places of public worship of his/her own religion.
It is important to note that laws can also be made for the advancement of women, children or disabled persons notwithstanding the above.
4. Freedom from arbitrary arrest, detention and punishment
Under and in terms of the Code of Criminal Procedure (Special Provisions) Act, No. 2 Of 2013 (which is in operation until February 2, 2017 ‒ unless extended), the lawful maximum period that a person may be detained in custody or otherwise confined if arrested without a warrant and before being produced before a magistrate is 24 hours. An additional 24 hours’ detention without a warrant may be allowed for certain serious offenses by a magistrate if such detention is necessary for investigations and with a certificate from an Assistant Superintendent of Police. After February 2, 2017, the maximum period that a person may be arrested/detained without a warrant will fall back to 24 hours without possibility of an extension as originally provided for by the Criminal Procedure Code.
In extreme circumstances, a person arrested/detained under the Prevention of Terrorism Act may be detained in custody for a maximum period of 72 hours before being produced before a magistrate.
Any arrest/detention outside this legal framework constitutes a violation of the fundamental right of freedom from arrest, detention, and punishment. ‘Arrest’ or ‘detention’ has been defined by the Supreme Court even as being deprived of a persons’ liberty to go where they pleased. Therefore, a police officer informing a person to accompany him to the police station without giving that person any other option constitutes arrest and the time periods mentioned above begin to run from this moment.
A police officer can only arrest or detain a person if he has a “reasonable suspicion” of such a person having committed a crime. Unreasonable arrests also become violations of this fundamental right. A police officer who proceeds to arrest a person must inform that person of the reasons for arrest.
A person also has the right to be presumed innocent unless proven guilty under this article, as well as the right to a fair trial.
Another right granted by this article is the freedom from ex post facto penal laws ﹘ If at the time an act was committed by a person, that act was not illegal, no law can be later be brought to make that act illegal and punish the same person later.
5. Freedom of speech
Article 14(1) of the constitution grants a citizen the right to freedom of speech and expression, including through publication. Freedom of expression is the absence of restraint upon the ability of individuals or groups of individuals to communicate their ideas and experiences to others. This also incorporates the right to have public speeches, political rallies, performance arts, stage dramas, photography, singing, and even putting up a Facebook status. However, these freedoms are subject to the rights of others and legal limitations, such as defamation, invasion of privacy, secrecy laws etc.
6. The freedom of peaceful assembly
Another right granted by article 14, the right to peaceful assembly, allows a citizen to take part in public meetings, processions, and demonstrations. This right combined with the right to freedom of expression, further empowers a citizen to have political rallies, protests etc., as long as they are peaceful and not an infringement on the rights of others and other legal limitations.
7. The freedom of association
The freedom of association allows citizens to join any organisation for a common purpose, such as a political party, Rotaract club, welfare society etc. This freedom promotes the idea of “togetherness” and “power in numbers” and is a huge influence on the workings of government and policy changes. This freedom may also be restricted on the basis of racial and religious harmony or national economy (Article 15(4) of the Constitution) ‒ extremist religious groups cannot therefore have the right to freedom of association.
8. The freedom to form and join a trade union
An important fundamental right to the working class, the freedom to form and join a trade union helps protect rights of workers at any place of work. Victimisation of members of a trade union for reason of them being such members also constitutes a violation of this right.
9. Freedom of language and culture
Article 14(f) of the constitution guarantees a person the freedom by himself or in association with others to enjoy and promote his own culture and to use his own language. It is important that, in a multicultural country such as Sri Lanka, the state actively promotes and develops the freedom of language and culture. Citizens are entitled to observe and protect their cultural heritage, preserve and engage in cultural festivals, etc. Any person can also use any language they wish to. This, however, does not guarantee the right to be educated in his/her own language. The right to be educated in either Sinhalese or Tamil as the official languages is given separately in Article 21(1) of the constitution and is not a fundamental right.
10. Freedom of business/profession
Article 14(g) of the constitution grants a citizen the freedom to engage by himself or in association with others in any lawful occupation, profession, trade, business or enterprise. In essence, this allows a person to engage in a lawful business/profession and ensures state responsibility to allow such activity as long as it is not illegal, immoral, or an infringement of the rights of others, etc. Further reasonable restrictions may also be brought about by law.
11. Freedom of movement and the freedom to return to Sri Lanka
The freedom of movement is a right guaranteed to citizens subject to some restrictions on national security, public order, and such. In essence, this allows a person to travel to any area of Sri Lanka and prevents any restrictions which are not lawful.
While there is no express fundamental right to leave Sri Lanka, a citizen has the fundamental right to return to Sri Lanka subject to certain limitations. A citizen of Sri Lanka does not have the right to be issued a passport unlike in the United States.
12. Right of access to information
This is a new fundamental right introduced by the 19th Amendment to the constitution and is self-explanatory. However, this right can only be implemented in terms of the Right to Information Act which sets up its own mechanism to enforce the right. Although the mechanism is expected to be completed by early next year, it may take further time until this right is freely available to all citizens due to administrative delays. Once implemented, however, a person can seek any information without reason from a number of bodies which can only be denied on grounds of national security, territorial integrity, or public safety, for the prevention of disorder or crime, for the protection of health or morals and of the reputation or the rights of others, privacy, prevention of contempt of court, protection of parliamentary privilege, for preventing the disclosure of information communicated in confidence, or for maintaining the authority and impartiality of the judiciary.
13. Right to a lawyer
Any person is entitled to representation before a court of law by himself, or through an Attorney-at-Law. Any person may also request a lawyer immediately upon arrest under the Appearances of Attorneys-at-Law at Police Stations Rules 2012 made under the Police Ordinance. These rules recognise the right of a lawyer to represent his/her client at a Police station and require the officer in charge of the Police station to facilitate such representation. These rules effectively recognise the right which all persons ‒ including suspects ‒ have to access their Attorneys-at-Law at any time, including the period immediately after arrest and while being in detention. An amendment has been proposed which would restrict this right to a lawyer until a statement is recorded from a person arrested.
14. Right to state education and other state facilities
While not an express right guaranteed by the Constitution, the International Covenant on Civil and Political Rights (ICCPR) Act, No. 56 of 2007 recognises the right of any citizen to have access to services provided to the public by the State. State education is one such service provided by the state and as such it can be argued that there is a right to access to state education such as primary and secondary education through state schools. The same applies to other state facilities such as electricity, water, etc.
Violations And Possible Action
Denial of any of the above rights by any executive or administrative action of any state party (police officer, minister, government official, state enterprise, etc.) can be challenged by way of a Fundamental Rights petition to the Supreme Court within one month of the infringement of the right. The one-month rule is only relaxed in cases where a petitioner is prevented from accessing the court due to unavoidable reasons beyond his control such as severe illness or detention. The court has the power to grant such relief or make such directions as it may deem just and equitable ‒ which is a far-reaching power.
Any person may also refer such a complaint of a denial of a fundamental right to the Human Rights Commission of Sri Lanka (HRC) for investigation and determination. However, findings by the HRC are not binding per se but have the effect of extending the one-month time limit to file a petition at the Supreme Court ‒ IF the complaint to the HRC was made within one month of the infringement of the right.
At a time when human rights is a prominent part of sociopolitical discourse the world over, knowing and understanding one’s fundamental rights is practically one’s democratic duty ‒ so here’s to being better-informed citizens.
If you found this article informative and useful, you may also be interested in brushing up on your rights as an employee.
Featured image credit: nationalgeographic.com/Ami Vitale