Hulftsdorp Hill

 10th October 1999

Human rights: the foremost duty of judiciary

By Mudliyar

Sarath Nanda Silva when he was a Court of Appeal judge made the inaugural Kanchana Abeypala Lecture in August, 1990 on the topic 'social values that promote human rights: some reflections for the future'.

He also wrote these moving words in October 1989 about Mr. Abeypala, a human rights lawyer who was killed in August 1989 during the period of terror.

"We will never forget you or what you did for us and our country when fear paralyzed the land. Through your inspiration we promise that your sacrifice will have not been in vain."

It is alleged that Mr. Abeypala was killed by K. Dharmasiri, President of the Independent Students Union. Dharmasiri and his friends in 'Prra' probably would have thought that by killing Kanchana Abeypala they could deter the human rights activists from fighting for justice and truth.

Sarath Silva is now the Chief Justice. It is important to remember that when he made this speech in 1990, Ranasinghe Premadasa was the President.

Under the sub heading of enshrining the sanctity of Human Rights, Mr. Silva said:

"Speaking as an ordinary citizen of this country and not as a judge, I feel that we are on the threshold of a significant evolution in our social values that will enshrine the sanctity of human rights for decades to come. My feeling is based on the evidence of the past decade that saw devastation and disruption to the ordinary life of people spread to every nook and corner of this island and spared virtually no one. People who thought that the protection of human rights of others did not matter so long as theirs were secured have seen the fallacy of their reasoning."

Of sense of humility

"We can learn a lot from our contrast with Japan which has today built up a civilization that is immensely cohesive and advanced. Only four decades ago Japan was in shambles, economically, socially and politically with an alien army in occupation. But from the ashes it has rebuilt one of the strongest economies of the world. The key to success, I believe, was the humility with which the Japanese approached the outside world taking and copying whatever they saw as good while at the same time discarding what was archaic in their own culture.

"Humility can take many forms. It can be the willingness to bow one's head to another, to listen to another, to try and understand how another feels and to even give up one's own opinion if another's opinion is shown to be more reasonable. Humility is a social value that can help us, however different we might be, to learn how to work together as a team and arrive at consensual decisions that take into consideration the interests of all rather than only the interests of some.

Of the foremost duty of judiciary

"One of the foremost duties of the judiciary has been to protect human rights, enshrined constitutionally in the Bill of Rights, against violations made possible in the rough and tumble of politics and the competition for resources. By and large the American courts have succeeded in brining in the higher values and aspirations of humanity and to limit the natural excesses of the political process." Law professor Savithri Gunasekera, the present Vice Chancellor of the Colombo University, delivered the fourth Kanchana Abeypala Memorial Lecture. This is what she said of the role of the Attorney-General: "The present Rules of the Supreme Court (1978) require the Attorney-General to be named in a petition for the violation of Fundamental Rights. It is also pointed out that when an infringement is alleged by executive or administrative action, he is noticed to watch the interests of the State. He is not cited as the person who committed the alleged infringement, and the Constitution does not envisage him as the sole party responsible to answer the allegation. the Attorney-General's constitutional role in fundamental rights litigation corresponds with his professional role as a lawyer and the Head of the Bar. His role and responsibilities are an intrinsic aspect of the administration of justice. He has a higher duty to the Court than to his client, the State."

Commenting on the fundamental rights jurisdiction during a speech at a ceremonial sittings to welcome Justice L.G.H. Weerasekera, Sarath Silva, then Attorney-General, said: "The fundamental rights jurisdiction exercised by Your Lordship's Court exclusively in relation to alleged infringements of fundamental rights or imminent infringements of such rights by executive or administrative action, has expanded far beyond the vision of those who have framed the Constitution.

"I state so in considering the provisions of Article 126(5) of the Constitution which specifically provides that this Court shall hear and finally dispose of such applications within two months of a petition being filed. Such a time limit would not have been introduced if the framers of the Constitution envisaged this exclusive jurisdiction to encompass over one thousand applications in a year. "I am confident that if such an eventuality was envisaged some process of filtration would have been introduced so that these applications would reach Your Lordship's Court only after they were first considered by a lower Court. The rich experience gained by Your Lordship would, I am confident help you in considering these applications in the true spirit in which the exclusive jurisdiction was vested in this Court.

"I would state very respectfully that the framers of the Constitution would have intended such a jurisdiction to be exercised only in matters which mandated the direct and immediate consideration by three judges of the Supreme Court. It would certainly not have been intended that all grievances in respect of executive or administrative action, in its widest sense, would have been intended to be the subject matter of such exclusive jurisdiction of the apex Court"

Since Sarath N. Silva became the Chief Justice we have not been able to obtain any of his judgements where he has interpreted the fundamental rights jurisdiction to give way to the feeling "that the foremost duty of the judiciary is to protect human rights enshrined in the Constitution against violations made possible in the rough and tumble of politics and the competition for resources".

See box for a table of cases and orders pronounced by the Chief Justice.

In all fairness, we cannot of course presume to know the quality or sustainabilities of these applications.

Date Case No: Nature of Case Result