S. C. (F.R.). Application No. 471/2000 - Case of Kotabadu Durage Sriyani Silva (Written submissions)
In the Supreme Court of the Democratic Socialist Republic of Sri Lanka
Colombo 12.
In the matter of an Application under Article 126 of the Constitution.
Petitioner:
Kotabadu Durage Sriyani Silva, Pettawatta, Gomarankada, Payagala.
(Wife of Mulle Kandage Lasantha Jagath Kumara - now Deceased)
Vs.
Respondents
1. Chanaka Iddamalgoda, Officer-in-Charge, Police Station of Payagala, Payagala, and 06 others.
TO: HIS LORDSHIP THE CHIEF JUSTICE AND THE OTHER LORDSHIPS OF THE SUPREME COURT OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA.
WRITTEN SUBMISSIONS ON BEHALF OF THE PETITIONER
1. Introduction
This matter was argued on 29.11.2001 and 25.03.2002 before Your Lordship the Chief Justice, Bandaranayake J. and Edussuriya J. At the commencement of the hearing the Respondents raised a preliminary objection; namely, the Petitioner cannot maintain the instant application in as much as she is not a person whose rights have been violated within the meaning of Article 126 of the Constitution. In the instant case, the Petitioner is the wife of the victim who succumbed to injuries suffered as a result of torture.
Oral Submissions were made by Counsel and Your Lordships' Court was pleased thereafter to permit all parties to submit written submissions. Hence these submissions are respectfully made. For the purpose of clarity and convenience the submissions are made under subheadings.
2. Where there is a right there is a remedy
(a) It is respectfully submitted that Article 126(1) read with Article 17 provides for a right to seek relief from Your Lordships' Court in case of a violation of fundamental rights. "If a statute which creates a right does not prescribe a remedy for the party aggrieved by the violation of such a right, a remedy will be implied and the party aggrieved may have relief, in an appropriate action founded upon the statute. The creation of a new duty or obligation or the prohibition of an act formally lawful carries with it, by implication a corresponding remedy to assure its observance."
(Bindra, Interpretation of Statutes, 7th Ed. At pp.729-730 - Photocopy annexed marked A)
(b) Similar provisions have been recognised in the following well regognised legal maxims:
· Ubi jus ibi idem remedium: where there is a right there is a remedy.
· Quando lex aliquid alicui concedit, conceditur et id sine quo res ipsa esse non protest: When the law gives a man anything, it gives him that also without which the thing itself cannot exist.
· Quando lex aliquid alicui concedit, omina incedentia tacite conceduntur: When the law give anything to any one, all incidents are tacitly given.
(Law Lexicon, P.Ramanatha Aiyar, pp 1302 and1055 - Photocopy annexed marked B)
3. The Scope of Chapter III of the Constitution.
(a) Your Lordships' attention is respectfully drawn to the following provisions of the Constitution, which establishes beyond doubt that the Parliament intended to preserve rights of persons guaranteed under Chapter III notwithstanding the death of a victim.
(i) Article 11 of the Constitution [No person shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.]
If a very restrictive interpretation is applied to Article126 vis-a-vis Article 11, this right would be meaningless for a victim who succumbed to injuries sustained by torture. In my respectful submissions, the intention of the Parliament in adopting Article11 was to guarantee freedom from all forms of torture (including serious torture resulting in death.) If the intention of the Parliament were otherwise, the Constitution would have spelt it out clearly.
(ii) Article 13(4) of the Constitution [No person shall be punished with death or imprisonment except by order of s competent court, made in accordance with procedure established by law.]
The rights guaranteed under this Article include a right against an unlawful punishment with death. If the preliminary objection succeeds a victim of a violation of this right or his dependents would be deprived of any remedy under Article 126 of the Constitution.
(iii) Article 126(3) of the Constitution [Where in the course of hearing in the Court of Appeal into an application for orders in the nature of a writ of habeas corpus, certiorari, prohibition, procedendo, mandamus or quo warranto, it appears to such court that there is prima facie evidence of an infringement or imminent infringement of the provisions of Chapter III or Chapter IV by a party to such application, such Court shall forthwith refer such matter for determination of the Supreme Court.]
This Article relates to pending writ applications, which stand transferred to the Supreme Court for the determination of a violation of fundamental rights. This includes of writs of habeas corpus and hence, it is submitted that a person other than whose rights have been violated could seek remedies under this Article.
(b) On the aforesaid grounds it is respectfully submitted that the rights guaranteed under Chapter III should not be abridged, restricted or denied under the procedure set out in Article 126. Further, Article 4(d) strengthens Your Lordships' hands to respect, secure and advance the rights guaranteed under Chapter III of the Constitution, in that all the rights have become justiciable.
4. Effect of Article 27(2)(a) of the Constitution
This Article sets out an important directive principle where the State is pledged to establish a democratic society, the objective of which includes " The full realisation of fundamental rights and freedoms of all persons." Your Lordships' attention is again drawn to Article 4(d), which requires all organs of the government to respect secure and advance the fundamental guaranteed under the Constitution. Therefore it is respectfully submitted that Your Lordships will in the instant case interpret Article 126 to advance Chapter III of the Constitution.
5. Interpretation in line with International Commitments.
(a) Sri Lanka being a signatory to many international conventions is under a duty to discharge the obligations under these conventions. Further Directive Principles set out under Article 27(15) of the Constitution states as follows,
"The state shall promote international peace, security and co-operation, and the establishment of a just and equitable international economic and social order, and shall endeavour to foster respect for international law and treaty obligations in dealings among nations."
(b) Your Lordships' attention is also respectfully drawn the presumption of interpretation that " statutes do not violate the principles of international law". As Odgers points out "every statute to be so interpreted and apply not to be inconsistent with commit of nations or with the established principles of International law".
Odgers' Construction of Deeds and Statutes, 5th Edition, Page 413- (Photocopy annexed marked C)
(c) In most countries International Conventions are not directly enforceable in national courts. However, the Banglore Principles, endorsed by the renowned judges themselves states, inter alia, as follows:
4. In most countries whose legal systems are based upon the common law, international conventions are not directly enforceable in national courts unless their provisions have been incorporated by legislation in to domestic law. However, there is a growing tendency for national courts to have regard to these international norms for the purpose of deciding cases where the domestic law - whether constitutional, statue or common law - is uncertain or incomplete.
5. This tendency entirely welcome because it respects the universality of fundamental human rights and freedoms and the vital role of an independent in reconciling the competing claims of individuals and groups of persons with the general interests of the community.
6. While it is desirable for the norms contained in the international human rights instruments to be still more widely recognised and applied by national courts, this process must take fully into account local laws, traditions, circumstances and needs.
7. It is within the proper nature of the judicial process and well-established judicial functions for national courts to have regard to international obligations which a country undertakes- whether or not they have been incorporated into domestic law- for the purpose of removing ambiguity and uncertainty from national constitutions, legislation or common law.
(Photocopy of the Bangalore Principles is annexed marked D)
6. Application of International Obligations in Sri Lankan Jurisprudence
(a) One of the first cases where the international human rights jurisprudence was first discussed in the Sri Lankan courts is Leela Violet v.Vidanapathirana (1994) 3 SLR 377(CA) S.N.Silva J.(President CA) as he than was relied upon a leading decision of the Inter American Court of Human Rights and Resolutions of UN Commission on Human Rights. Following the rationale of the international human rights jurisprudence and the Indian decision of Sebastian Hongray v. Union of India His Lordship granted "exemplary costs" in respect of a person who has disappeared after arrest.
(b) Whether the court should have regard to the provisions of international covenants has been dealt with by Your Lordships' Court, in Weerawansa v. A.G. (2000) 1 SLR 386, at page 409 in relation to the Article 09 of the International Covenant on Civil and Political Rights. His Lordship Justice Fernando states as follows,
"Should this court have regard to the provisions of the Covenants? I think it must. Article 27(15) requires the State to endeavour to foster respect for international law and treaty obligations in dealing among nations, that implies that the state must likewise respect international and treaty obligations in its dealings with its' own citizens, particularly when their liberty is involved. The state must afford to them the benefit of the safeguards which international law recognises."
(Relevant pages of the judgement are submitted marked E)
(c) In Manawadu v. AG (1987)2 SLR 30 at p.43 the Court referred to a particular right in the Universal Declaration of Human Rights and applied an interpretation adopted by Lord Denning in R v. Chief Immigration Officer (1976) 3 AER 843. His Lordship states as follows:
"Among the important rights which individuals traditionally have enjoyed is the right to own property. This right is recognised in the Universal Declaration of Human Rights (1948). Article 17(10 of which states that everyone has the right own property and Article 17(2) guarantees that " no one shall be deprived of his property." The contention of the State counsel negates this right. An intention to provide for arbitrary infringement of human rights cannot be attributed to the legislature unless such intention is unequivocally manifest. When Parliament is enacting a statute, the court will assume that it had regard to the Universal Declaration of Human Rights and intended to make the enactment accord with the Declaration and will interpret it accordingly (Vide Lord Denning in R v. Chief Immigration Officer)"
(d) In the Supreme Court determination in Re Sri Lanka Broadcasting Authority Bill (SCD 1-15/97) determination dated 05.05.1997 the Supreme Court made reference to international jurisprudence of the European Court of Human Rights.
(e) In Sunila Abeysekera v, Ariya Rubasinghe (2000) 1 SLR 314 His Lordship Justice Ameresinghe relied on several decisions of European Commission of Human Rights and European Court of Human Rights (at p.334) and Inter American Court of Human Rights (at p.334). Reliance was also placed on Article 10 of the European Convention for Protection of Human Rights and Fundamental Freedoms (at p.354)
(f) In Bulankulama v Secretary, Ministry of Industrial Development (Eppawala Case) (2000) 3 SLR 243, at page 316-317, His Lordship Justice Ameresinghe considered principles of Rio Declaration in the interpretation of provisions of the National Environmental Act.
(Relevant pages of the judgment are annexed marked F)
(g) Finally, it is submitted that Article 14 of the Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment and Punishment obliges Sri Lanka to ensure payment of compensation to dependents of victims of torture if the victim succumbed to death. This aspect is dealt within paragraph 7 below fully.
(h) Whether or not international instruments have been fully incorporated in domestic law, the provisions may nevertheless be prayed in aid by courts in interpreting national Constitutional standards. The leading case of Vishaka in Indian Supreme Court is case in point.
(Vide. Vishaka v. State of Rajastan AIR 1997 SC 3011 -photocopy annexed marked G)
(i) It is respectfully submitted that the European Court of Human Rights has commented (Ilham v. Turkey) that "the rules of admissibility must be applied with some degree of flexibility and without excessive formalism. Regard must also be had to the object and purpose of those rules and of the Convention generally, which, as a treaty for the collective enforcement of human rights and fundamental freedoms, must be interpreted and applied so as to make its safeguards practical and effective.
7. Convention Against Torture and Its Obligations
(a) It also relevant to note that Sri Lanka has ratified The Convention against Torture and Other Cruel, inhuman or degrading Treatment or Punishment (CAT convention). Article 14 of the Convention states as follows:
14.1 Each state party shall ensure in its legal system that the victim of an act of torture obtains redress and has an enforceable right to fair and adequate compensation, including the means for as full rehabilitation as possible. In the event of the death of the victim as a result of an act of torture, his dependents shall be entitled to compensation.
14.2 Nothing in this article shall affect any right of the victim or other persons to compensations, which may exist under national law.
(Photocopy of the Convention is marked H)
(b) In the circumstances it is respectfully submitted that failure to interpret the definition of "victim" (person whose rights have been violated) contained in Article 126 to include the dependents of those who have died as a result of torture, amounts to a non-compliance with Sri Lanka's obligations under Article 14 of the Convention Against Torture.
8. The Petitioner- an Indirect Victim
(a) Having regard to the provisions of Chapter III of the Constitution and Article 126, a victim of a fundamental rights violation need not necessarily seek relief by himself or herself. For example in the present case the direct victim is dead but the wife remains an indirect victim to the alleged violation of rights. In my respectful submissions, such indirect victims have not been deprived of reliefs under the Constitution.
(b) The concept of indirect victims has been recognised by the European Court in interpreting Article 34 of the European Convention on Human Rights. It is therefore respectfully submitted that a victim includes any person who is an actual, potential or an indirect victim. (Vide. Ilham v. Turkey)
(c) In a number of cases, the European Court has held that the relatives of a deceased have the right to sue for a violation of the deceased's human rights. It has granted standing to an applicant, as an indirect victim, to allege the violation of the rights of a close relative (including spouse, sibling and niece) tin circumstances where the direct victim died as a result of the violation. In addition, it has awarded compensation to such indirect victims for the violation of the rights of the direct victim.
For example, in Gul v. Turkey, the court awarded compensation for violations of Article 2 (right to life), Article 6(right to a fair trial) and Article 13(right to an effective remedy) in respect of the shooting of the deceased by the police officers, in connection with an application filed on behalf of the deceased, his father and his wife and dependent children. Similarly, in Ergi v. Turkey , the Court awarded compensation to the deceased woman's brother and daughter for a violation of Article 2 (the right to life) in respect of defects in the planning and conduct of an operation by the security forces which resulted in her death, and the lack of any subsequent adequate and effective investigation.
9. In the aforesaid circumstances it is respectfully submitted that, Article 126 needs to be interpreted broadly with a view to fully implement Chapter III of the Constitution. Further, the only decision that favours the Respondents Somawathie v. Weerasinghe (1990) 2 Sri L R 121, has not considered the important points referred to above. In any event the decision in Somawathie does not bind Your Lordships' Court. In the circumstances it is respectfully submitted that Respondents' preliminary objection should be overruled and the main matter should be fixed for hearing.
--------------------------------------
Attorney-at-Law for the Petitioner
Settled by
Charuka Samarasekara, Attorney-at-Law
Janaka Samarakone, Attorney-at-Law and
J.C. Weliamuna Attorney-at-Law
