FUNDAMENTAL

RIGHTS
IN
SRI LANKA - II
PROFESSOR WASANTHA SENEVIRATNE
FACULTY OF LAW, UNIVERSITY OF COLOMBO
WHAT YOU ARE GOING TO LEARN
TODAY:

• ARTICLE 12

• ARTICLE 13

• ARTICLE 14
ARTICLE 12
 ARTICLE 12: RIGHT TO EQUALITY

•(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:
• Provided that it shall be lawful to require a person to acquire within a
reasonable time sufficient knowledge of any language as a
qualification for any employment or office in the Public, Judicial or
Local Government Service or in the service of any Public Corporation,
where such knowledge is reasonably necessary for the discharge of the
duties of such employment or office:
• Provided further that it shall be lawful to require a person to have a
sufficient knowledge of any language as a qualification for any such
employment or office where no function of that employment or office
can be discharged otherwise than with a knowledge of that language.
• (3) No person shall, on the grounds of race,
religion, language, caste, sex or any one of such
grounds, be subject to any disability, liability,
restriction or condition with regard to access to
shops, public restaurants, hotels, places of public
entertainment and places of public worship of his
own religion.
•(4) Nothing in this Article shall
prevent special provision being
made, by law, subordinate
legislation or executive action, for
the advancement of women,
children or disabled persons.
 SHANUKA GIHAN KARUNARATNE (MINOR)
AND OTHERS V LORY KOSWATTE AND
OTHERS (SC (FR) APPLICATION NO. 139/12)

• The Petitioners by way of this application challenge, inter alia,

the torture and/or cruel, inhuman and degrading punishment or
treatment meted out to them by the 1st Respondent by severely
caning them and causing injuries in violation of the Circulars of
the Ministry of Education and thereby violating their fundamental
rights guaranteed under Article 11 and further violating their
fundamental rights guaranteed under Article 12 (1) of the
Constitution for having meted out corporal punishment on them.
• “It was contended on behalf of the Petitioners that, as
per Circular No. 2005/17 dated 11th May 2005 issued
by the Secretary to the Ministry of Education, that
there is a total prohibition on the infliction of corporal
punishments on students in government schools as a
disciplinary measure.”
• “Therefore, it can be held that the violation of Circular
No. 2005/17 by the 1st Respondent amounts to a
violation of the Petitioners’ fundamental rights
guaranteed under Article 12 (1) of the Constitution.”
 BULANKUL AMA AND O T HERS
V.
SECRETARY, MINI STRY OF
INDUST RIAL DEV ELOPMENT A ND O THERS
(EPPAWEL A PHOSPHATE CASE ) [2 000 ] 3 SRI L R 24 3
• The case revolves around a proposed agreement between the Sri Lankan Government and Freeport
MacMoran of the USA (and its affiliate, IMCO Agrico) concerning the exploration and mining of
phosphate deposits in Eppawela, located in the Anuradhapura district.
• On August 4, 1997, representatives from both parties initialed the final drafts of the Mineral
Investment Agreement, granting the company the sole and exclusive rights to explore, conduct test
operations, and develop and mine phosphate and other minerals in the designated area.
• The petitioners, who are residents of Eppawela and engaged in cultivation (including a temple
head, the Viharadhipati), claimed their fundamental rights under Articles 12(1), 14(1)(g), and
14(1)(h) of the Constitution were infringed due to the proposed agreement.
• They argued that the agreement would lead to both environmental and economic disasters,
supported by expert analyses and reports from the National Academy of Sciences and the National
Science Foundation.
• Lack of Environmental Assessment: The proposed agreement does not
require an environmental impact assessment (EIA) as mandated by law.
Instead, it only provides for an international consultant to conduct a
study after exploration begins. This bypasses the need for approval from
a national authority, reducing citizens' rights to mere paper rights. The
agreement favors the Company and leaves a local company, Sarabhumy,
liable in case of disputes.
• Non-Compliance with Legal Requirements: The project has not been
approved by a proper agency like the Central Environmental Authority
(CEA). By law, an EIA must be completed with public notification and
the opportunity for public comment. If approved, it must be published in
the Gazette.
• “In the circumstances, there is an imminent infringement of the
petitioners’ fundamental rights under Article 12(1) of the Constitution.”
• Held:

• In the circumstances, there is an imminent infringement of the petitioners'

fundamental rights under Article 12(1) of the Constitution.

• Per Amerasinghe, J.

• "Human beings are at the centre of concerns for sustainable development.

They are entitled to a healthy and productive life in harmony with nature
(Principle 1, Rio De Janeiro Declaration). In order to achieve sustainable
development, environmental protection shall constitute an integral part of
the development process and cannot be considered in isolation from it.
(Principle 4, Rio De Janeiro Declaration), In my view the proposed
agreement must be considered in the light of the foregoing principles"
 RAVINDRA GUNAWARDENA KA RIYAWASAM V
CENTRA L ENVIRONMENT AUTHO RITY AND
O THERS - CHUNNAKA M POWER PLANT CASE (SC FR
APPLICATIO N NO. 141/2015 )

• In this application, the petitioner complains that the 8th respondent

company has operated a thermal power station in Chunnakam in a manner
which has polluted groundwater in the Chunnakam area and made
groundwater unfit for human use.
• The petitioner accuses the Central Environmental Authority [“CEA”] , the
Ceylon Electricity Board [“CEB”], the Provincial and Local Authorities, the
Board of Investment of Sri Lanka [“BOI”] and the National Water Supply
and Drainage Board [“NWSDB”], who are named as the 1st to 7th
respondents and 10th and 11th added respondents, of having failed to
enforce the law against the 8th respondent and of having failed to stop the
8th respondent polluting groundwater and having failed in their duty to act
in the best interests of the public.
• “…it seems to me that when Article 12 (1) guarantees that “All persons are
equal before the law and are entitled to the equal protection of the law”, it
vests in the residents of the Chunnakam area a constitutionally guaranteed
right to be protected by the provisions of the National Environmental Act to
the same extent that residents elsewhere in the country would be protected
by the same Act.
• This, in turn, grants the residents of the Chunnakam area the right to
legitimately expect that the CEA and BOI will fulfil their duties under the
Act and the applicable Regulations in relation to the 8th respondent’s
thermal power station and not act in breach of these duties, just as these
statutory authorities are required to do and have done in relation to
comparable projects anywhere else in the country.
• Therefore, an arbitrary or unreasonable failure on the part of the CEA and
the BOI to perform their duties under the National Environmental Act and
the regulations made thereunder which causes loss, damage and
inconvenience to the residents of the Chunnakam area, will entail a
violation of their rights guaranteed by Article 12 (1).”
STUDENT
ACTIVITY
• Alex, a resident of a town called Clearbay in the country Sinha, notices that a new factory
owned by Lux Industries has been discharging waste into the nearby river. This pollution
has caused significant harm to the local ecosystem, affecting the quality of the water and
the health of the residents who rely on the river for their daily needs.
• Alex learns that the environmental regulations in Sinha are meant to be enforced by the
Governmental authority on environmental protection known as Environmental Protection
Agency (EPA). However, despite numerous complaints from the residents of Clearbay, the
EPA has not taken any action against Lux Industries. Meanwhile, in a neighboring town,
where a similar issue arose with a different company, the EPA acted swiftly to enforce the
regulations and stop the pollution.
• Alex believes that the EPA’s failure to act against Lux Industries in Clearbay, while taking
action in similar situations elsewhere, constitutes unequal treatment under the law.
• Alex seeks your advice as to the legal remedies he has. Advice Alex, citing relevant case
law. Assume that the legal system of Sinha is similar to that of Sri Lanka.
ARTICLE 13
 ARTICLE 13: FREEDOM FROM ARBITRARY
ARREST, DETENTION AND PUNISHMENT, AND
PROHIBITION OF RETROSPECTIVE PENAL
LEGISLATION

•(1) No person shall be arrested except

according to procedure established by
law. Any person arrested shall be
informed of the reason for his arrest.
 GANESHAN SAMSON ROY V JANAKA
MARASINGHE, OFFICER IN CHARGE
AND OTHERS (S.C (F/R) 405/ 2018)
“Section 23(1) of the Code of Criminal Procedure requires that the person
making an arrest to inform the person to be arrested of the nature of the charge or
allegation upon which he is arrested. This requirement aims to ensure that the
person arrested is afforded the opportunity to challenge the arrest at the earliest
opportunity. A particular form is not required for the notification, nor does it
require a complete detailed description of the charges against the suspect. The
requirement is for the arrested person to be told in simple, non-technical language
that he can understand, the essential legal and factual grounds for his arrest at the
earliest reasonable opportunity.”
“The procedure established by law in which a detainee is to be produced before a
judge is contained in Section 36 and 37 of the Code of Criminal Procedure Act No.
15 of 1979. Sections 36 and 37 reads as follows:

“A peace officer making an arrest without warrant shall without unnecessary delay
and subject to the provisions herein contained as to bail take or send the person
arrested before a Magistrate having jurisdiction in the case”

“Any peace officer shall not detain in custody or otherwise confine a person arrested
without a warrant for a longer period than under all the circumstances of the case is
reasonable, and such period shall not exceed twenty-four hours exclusive of the time
necessary for the journey from the place of arrest to the Magistrate”.”
• (2) Every person held in custody, detained or
otherwise deprived of personal liberty shall be
brought before the judge of the nearest
competent court according to procedure
established by law and shall not be further held
in custody, detained or deprived of personal
liberty except upon and in terms of the order of
such judge made in accordance with procedure
established by law.
 FAROOK V RAYMOND AND OTHERS
[1996] 1 SRI L.R 217
“the object of Article 13(2) of the Constitution is to afford a person who has
been deprived of his personal liberty by executive action, to have the benefit
of placing his case before a neutral person - a judge - so that a judicial mind
may be applied to the circumstances and an impartial determination made in
accordance with the applicable law. The provision is designed to eliminate
arbitrariness in depriving a person of his liberty, and this extends to the
exclusion of arbitrariness on the part of a judge who orders that a person
brought before him be further held in custody, detained or deprived of
personal liberty. If in depriving a person of his liberty a judge does not act
according to procedure established by law, there is a contravention of the
guarantee enshrined in Article 13(2) of the Constitution.”
•(3) Any person charged with an
offence shall be entitled to be
heard, in person or by an
Attorney-at-Law, at a fair trial
by a competent court.
 PRINCIPLES OF NATURAL JUSTICE
• There are two principal rules.
1. Rule against bias (nemo judex in causa sua ): no man may be a judge
in his own cause. This means that any decision, however fair it may
seem, is invalid if made by a person with any financial or other
interest in the outcome or any known bias that might have affected
his impartiality.
2. Hear the other side (audi alteram partem): It states that a decision
cannot stand unless the person directly affected by it was given a fair
opportunity both to state his case and to know and answer the other
side’s case.
 GUNAPALA V. ATTORNEY GENERAL
(CA 58-59/98.)
• “The learned counsel who appeared for the appellant submitted that the appellant
was not given an opportunity of answering the charge of Contempt of Court levelled
against him. He could not avail himself of the services of an Attorney-at-Law.
• In this regard the learned counsel referred us to Article 13(3) of the Constitution….
• Under Section 195(g) of the Criminal Procedure Code one of the duties of the High
Court Judge when serving an indictment on an accused person is to ask the accused
whether he requires an Attorney-at-Law to be assigned to him for his defence and if
he so requests to assign a counsel. We see no reason why a witness in the main case
in a High Court trial when charged with an offence of Contempt of Court for giving
false evidence which is a criminal offence should be deprived of such a facility….
• For the aforesaid reasons we are of the considered view that the impugned
proceedings are invalid.”
•(4) No person shall be punished with death
or imprisonment except by order of a
competent court, made in accordance with
procedure established by law. The arrest,
holding in custody, detention or other
deprivation of personal liberty of a person,
pending investigation or trial, shall not
constitute punishment.
•(5) Every person shall be presumed
innocent until he is proved guilty:
Provided that the burden of proving
particular facts may, by law, be
placed on an accused person.
• (6) No person shall be held guilty of an offence on account of any act
or omission which did not, at the time of such act or omission,
constitute such an offence and no penalty shall be imposed for any
offence more severe than the penalty in force at the time such offence
was committed.
• Nothing in this Article shall prejudice the trial and punishment of any
person for any act or omission which, at the time when it was
committed, was criminal according to the general principles of law
recognized by the community of nations.
• It shall not be contravention of this Article to require the imposition of
a minimum penalty for an offence provided that such penalty does not
exceed the maximum penalty prescribed for such offence at the time
such offence was committed.
STUDENT
ACTIVITY
• On August 28, 2024, Priya Silva was arrested by the Newfield police on
allegations of theft.
• At the time of her arrest, Priya was not informed of the reason for her arrest, nor
was she given any documentation explaining the charges against her.
• Priya was brought before the Kale Magistrate on August 30, 2024.
• During the court hearing, Priya was not given an opportunity to present her
defense or to be heard. She was also denied access to legal representation, as the
court did not inform her of her right to an attorney or provide assistance in
securing one.
• Adding to the issue, on August 30, 2024, a police spokesperson publicly declared
Priya as guilty of theft in a press release widely covered by local media. This
public declaration prejudiced Priya’s case, damaging her reputation and creating a
biased perception against her.
• Priya seeks your advice as to the legal remedies she has. Advice Priya, citing
relevant case law. Assume that the legal system of Newfield is similar to that of Sri
Lanka.
ARTICLE 14
ARTICLE 14: FREEDOM OF SPEECH,
ASSEMBLY, ASSOCIATION,
OCCUPATION, MOVEMENT, & C.
• (1) Every citizen is entitled to –
– (a) the freedom of speech and expression including publication;
– (b) the freedom of peaceful assembly;
– (c) the freedom of association;
– (d) the freedom to form and join a trade union;
– (e) the freedom, either by himself or in association with others, and
either in public or in private, to manifest his religion or belief in
worship, observance, practice and teaching;
– (f) the freedom by himself or in association with others to enjoy and
promote his own culture and to use his own language;
– (g) the freedom to engage by himself or in association with others in any
lawful occupation, profession, trade, business or enterprise;
– (h) the freedom of movement and of choosing his residence within Sri
Lanka; and
– (i) the freedom to return to Sri Lanka.
AMARATHUNGE V. SRIMAL 1993 (1)
SRI.L.R.264 (JANA GOSHA CASE)
• Several political parties including the Sri Lanka Freedom Party decided to
show their disapproval of the policies and actions of the Government on a
range of issues.
• It was decided to harmonize their protests, nationwide by means of a 15
minute noisy cacophony of protests (Jana Ghosha) : ringing of bells, tooting
of motor vehicle horns, beating of drums, banging of saucepans,....
• The petitioner, a member of the S.L.F.P. and a member of the Pradeshiya
Sabha of Horana was one such participant at Ingiriya.
• The petitioner voiced his protest by beating a drum.
• When he did not heed the police order to stop beating the drum, he was
assaulted and his drum broken with a rice pounder.
“The right to support or to criticize Governments and
political parties, policies and programmes is fundamental
to the democratic way of life, and the freedom of speech
and expression is one which cannot be denied without
violating those fundamental principles of liberty and
justice which lie at the base of all civil and political
institutions.”

“Criticism of the Government, and of political parties and

policies, is per se, a permissible exercise of the freedom of
speech and expression under Article 14 (1)(a).”
 CHANNA PIERIS AND OTHERS V.
ATTORNEY GENERAL AND OTHERS

• “the unfettered interchange of ideas from diverse and antagonistic

sources, however unorthodox or controversial, however shocking
or offensive or disturbing they may be to the elected
representatives of the people or to any sector of the population,
however hateful to the prevailing climate of opinion, even ideas
which at the time a vast majority of the people and their elected
representatives believe to be false and fraught with evil
consequences, must be protected and must not be abridged, if the
truth is to prevail.”
STUDENT
ACTIVITY
• On August 15, 2024, Meena Silva, a journalist residing in Greenfield, wrote and
published an article in the Greenfield Herald criticizing the government’s handling
of a major environmental crisis involving illegal dumping by a large corporation.
The article highlighted issues of corruption and inefficiency within the local
authorities, and it was widely circulated and discussed in the community.
• A week after the publication, the Local Authorities of the area issued a notice to
Meena stating that her article had incited public unrest and disrupted peace in the
city.
• They demanded that she cease any further critical reporting on government
matters or face legal action, including potential charges of incitement and
defamation.
• Meena was also informed that her press credentials would be revoked if she
continued her criticisms.
• Meena seeks your advice as to the legal remedies she has. Advice Meena, citing
relevant case law. Assume that the legal system of Greenfield is similar to that of
Sri Lanka.