Focus on Rights

A leap of faith and the right to life
For long, we have had to endure one of the most startlingly illogical propositions in relation to the way in which an ordinary citizen in this country could exercise his or her rights under the Constitution. If Citizen Perera is taken into a police station, for example, and severely tortured, he would have immediate recourse to Article 11 of the Constitution and would, in all probability, be granted substantial compensation.

However, if this same Citizen Perera had been so badly tortured that he died in the course of such treatment, this same Constitution, on the face of it, washed its hands of the affair with great - if not highly problematic- promptitude.

There was a reason for this curious state of things. The Constitution, in the doubtful wisdom of its framers, had thought it fit to give the right to relief only to a person alleging the infringement of any right 'relating to such person', with only that person or an attorney-at-law on his behalf being able to petition court. (Article 126(2))

In addition, its provisions do not specify a right to life, unlike for instance, the far older comparable provisions of the Indian Constitution, having the benefit obviously, of minds far less governed by political exigencies than when our basic law was visioned.

As a result, we had to endure decades of unholy confusion in the basic conceptualising of our rights protections. Being Sri Lankans, we also endured this illogicality without significant demur, excepting protests made by some rights activists when 'disappearances' were rife in this country and the same problem persisted; one could protest if one had been illegally detained and tortured but not if one had been in the custody of the State and had 'disappeared', (an euphemism for being killed), thereafter.

This Friday, removing some of this confusion to some extent, the Supreme Court gave judgment declaring that the right to life was implicitly recognised in some of the rights provisions in the Constitution. (Kottabadu Durage Sriyani Silva vs OIC, Paiyagala Police and Others, SC(FR) 471/2000, SCM 8/8/2003)

The judgment delivered by M.D.H. Fernando J. (with Yapa J. and De Silva J. agreeing) infers necessarily a positive right from the negative, as contained particularly in the constitutional right not to be punished with death or imprisonment except by court order (Article 13(4).

In other words, and put very simply, this constitutional article means that a person has a right to live unless a court orders otherwise. The Court reasoned that, in turn, a person has a right to life - at least in the sense of mere existence as distinct from the quality of life - which he can be deprived of only under court order.

Similarly, Article 11 guarantees freedom from torture and from cruel and inhuman treatment or punishment. Consequently, to unlawfully deprive a person of life, without his consent or against his will would certainly be inhuman treatment for life is an essential pre-condition for being human.

The Court uses these two articles to recognise a right not to be deprived of life -by way of punishment or otherwise- and by necessary implication, a right to life. Logical as this may seem, at first glance, this reasoning is, in essence, a leap of faith from previous strict constructions of the Constitution that have been bound by the fact that there is no right to life expressly laid down in its provisions.

From this reasoning, the Court proceeds to holding that the next-of-kin, intestate heirs or dependants would be able to sue the wrongdoers for the unlawful death so caused. In this sense, the court recognises, and at long last, one could say, the evident anomaly in the alternative that gives redress for the lesser infringement (imprisonment) but not for the greater (death).

The word 'person' in Article 126(2) is therefore interpreted broadly in the context of the express duty imposed on it by Article 4(d) of the Constitution to respect, secure and advance fundamental rights as well as Article 118(b) conferring exclusive jurisdiction upon the Supreme Court to protect fundamental rights.

In addition, Article17, (entitling a person to make an application to court regarding an infringement) is reiterated to be an independent right. Consequently, as much as any person would be entitled to relief for being temporarily prevented from exercising this right, similar redress would be given if he was permanently so prevented.

The Court remarks particularly that such an interpretation is compelled by international obligations and standards, particularly provisions of the Convention Against Torture and Other Cruel Inhuman or Degrading Treatment giving the right to compensation to dependants in the event of death of the victim (to which Convention, Sri Lanka is a party).

In granting relief to the wife of an army deserter (claiming compensation on behalf of herself and her minor child) who had been lawfully arrested by the police but severely tortured thereafter, as a result of which he died eight days later, the OIC of the police station is notably made liable, not for direct involvement in the acts of torture but for breach of his duty to take all reasonable steps to ensure that the victim was treated humanely and in accordance with the law.

A total of eight lakhs compensation was awarded to the wife and child, of which fifty thousand is to be paid by the responsible police officers. The Court also, in another fairly interesting development, ordered that a copy of the judgment be forwarded to the National Police Commission for necessary action.

This week's judgment obviously takes the law further from the position wherein it had been previously languishing. The right to life has been conceded constitutionally even though in the barest terms and not in the sense of right to livelihood, the latter being the framework within which, for instance, the Indian Supreme Court embarked on its bold protection of the poor and marginalised in India. Given our shortsighted constitutional provisions, this however, is a start.

But the questions are bigger than this. We are now seeing the brutality earlier manifest in police actions under extraordinary security laws like the Emergency Regulations and the Prevention of Terrorism Act, transferred to ordinary crimes. What the court can do, even to the extent of delivering judgements such as this week's decision, is obviously limited. Transferring the burdens on to an under resourced National Police Commission is an easy way of passing the buck. Instead, we would do well, at least now, to systematically tackle this extreme brutalisation of our law and order processes, which, in all its ramifications, cannot be more chilling.

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