- See, generally, H W Thambiah Principles of Ceylon Law.
- See, P E Peiris Ceylon: The Portuguese Era Vol 11; J Ribeiro The Historic Tragedy of the Island of Ceylon (translation by P E Peiris, (1925)); C C Mendis The Colebrooke - Cameron Papers - Documents on British Colonial Policy in Ceylon 1796–1833.
- A R C Perera The Judicial Protection of Human Rights in Sri Lanka (unpublished LLM dissertation University of Colombo, Sri Lanka 1984) 28.
- In re Mark Antony Lyster Bracegirelle 1937 (39) NLR 193. See also Dias v Attorney-General 1918 (20) NLR 193; Attorney-General v De Keyser's Royal Hotel 1920 (22) NLR 161.
- That is the 1946 Constitution which came into force after independence.
- The 1946 Constitution guaranteed constitutional protection to all people in Sri Lanka. No distinction was made between ‘citizen’ and ‘non-citizen’, a distinction to be found in both the 1972 and the 1978 Constitutions. See further on this Constitution: C F Amerasinghe The Doctrine of Sovereignty and Separation of Powers in the Law of Ceylon (1970); I Jennings The Constitution of Ceylon’, G Marshall Parliamentary Sovereignty in the Commonwealth (1957); M J A Cooray The Judicial Role under the Const i tut ion of Ceylon/Sri Lanka M C Marasinghe ‘Ceylon — a Conflict of Constitutions’ (1971) 20 ICLQ 645.
- This admission was made in a BBC Overseas Service discussion and is referred to in J A L Cooray Constitutional and Administrative Law of Sri Lanka.
- Comments on Basic Resolution 22, National Assembly 4 July 1971. Cited by A R C Perera, note 3.
- L J Boulle South Africa and the Consociational Option - A Constitutional Analysis (1984).
- 1982(3) SA 787(A).
- A Naidu ‘The Concept of Human Rights’ 1985 De Jure 377.
- The Sri Lankan Constitution (art 12(2)) is not the only national constitution that provides that only citizens shall not be discriminated against. For example art 24 of the Egyptian Constitution (1948) provides that:
- ‘Egyptians are equal before the law. They have equal public rights and duties without discrimination between them due to race, origin, language, religion or creed.’
- For the full text of the Constitution of India see I Brownlie Basic Documents on Human Rights
- (1971).
- The Sri Lankan Constitution restricts civil and political rights to citizens only (art 14) because of the inherent fear in that country that the sizeable minority of non-Sri Lankans might claim those rights and thereby move a step closer to claiming Sri Lankan citizenship. The official Sri Lankan viewpoint is that all Indians working and living in Sri Lanka are there on a temporary basis and that they should claim their civil and political rights in India. This is not a sound approach. It is submitted that persons within a country, be they citizens or not, should be able to claim their rights within the state which they are in at a given time. The Bophuthatswana Bill of Rights draws no distinction between ‘citizens’ and ‘other persons’. Article 9 of the Bophuthatswana Constitution reads:
- ‘All people shall be equal before the law. and no one may because of his sex. his descent, his race, his language, his origin or his religious beliefs be favoured or prejudiced.’
- Consequently, the Bophuthatswana Bill of Rights may be invoked even by people who are merely passing through the territory of Bophuthatswana.
- The practical effect of this provision is that up to the end of 1983 only 87 applications were filed in the Supreme Court by persons alleging a violation of their fundamental rights.
- Act 17 of 1981.
- Supreme Court Application No 27 of 1979. See also Jayawardena v Attorney-General Supreme Court Application No 4 of 1981, where Weerraratne J said:
- ‘The question that arises for determination by us is whether there was an infringement or imminent infringement of a fundamental right by executive or administrative action as alleged by the petitioner. We are satisfied that the application is out of time, and hence we refuse it since our jurisdiction cannot be exercised after the period of one month from the date of the executive or administrative act complained of.’
- The Supreme Court also refused to exercise jurisdiction after the expiry of the one month time limit in Gunawardena v E L Senanayake Supreme Court Application No 12 of 1981; and Mahenthiran v Attorney-General Supreme Court Application No 68 of 1980.
- Supreme Court Application No 68 of 1980.
- At 6. Note, since 1980 none of the human rights cases has been formally reported or printed in the official law reports. During the latter part of 1983 when the writer was a Visiting Associate Professor at the University of Colombo. Sri Lanka, he was able to acquire copies of every case involving Chapter 111 of the Constitution (Fundamental Rights) which came before the Supreme Court in terms of arts 17 and 126 for the period 1979 to 1983. Page references are therefore references to pages in the original judgment and not to references in any later reported version
- Supreme Court Application No 97 of 1982, decided 13 December 1982.
- Supreme Court Application No 35 of 1979, decided 17 September 1979.
- Emphasis added.
- Supreme Court Application No 57 of” 1980. decided 4 August 1980.
- Supreme Court Application No 87 of 1982, decided 29 November 1982.
- Op cit 66–7.
- Section 14 of the Parliamentary Commissioner for Administration Act 17 of 1981.
- Section 10 of the Presidential Elections Act 15 of 1981 and s B of the Parliamentary Elections Act 1 of 1981.
- Section 10 of the Prevention of Terrorism Act 48 of 1979.
- Former Head of the Department of Law. University of Colombo. Sri Lanka.
- 1983 Human Rights Quarterly 59.
- Supreme Court Application No 53 of 1980, decided 15 July 1980.
- Above note 30.
- Supreme Court Application No 63 of 1980, decided 14 August 1980.
- Supreme Court Application No 68 of 1980.
- At 9.
- At 10.
- Ibid.
- Application No 5310/71; Report of 25 January 1976; Judgment: 18 June 1978; YB 19, 82.
- At 13.
- Supreme Court Application No 57 of 1980, decided 4 August 1980.
- Supreme Court Application No 74 of 1981, decided 9 November 1981.
- At 43–4.
- 284 US 3239 (1931).
- At 45 of the Velumurgu judgment.
- At 66.
- 100 US 339 (1880).
- At 346. Quoted al 68–9 of Velumurgu judgment. See also Virginia v Rives 100 US 313 (1880); Home Telephone and Telegraph Co v City of Los Angeles 227 US 278 (1913); Raymond v Chicago Union Traction Co 207 US 20 (1907); Shamdasani v Central Bank of India 1952 AIR (SC) 59; Sunday Lake Iron Co v Wakefield 247 US 350 (1918); Neal v Delaware 103 US 370 (1880).
- At 91 of the judgment.
- Supreme Court Application No 20 of 1983.
- Visuvalingam v Livanage also known as the Saturday Review case. Supreme Court Application Nos 47 of 1983, 53 of 1983 and 61 of 1983. Decided 18 November 1983.
- The petitioners in Application Nos 47 of 1983 and 53 of 1983 were the sole shareholders in the petitioner company which published the English language newspaper, the Saturday Review. The first respondent, the Competent Authority appointed under the Emergency Regulations, acting under the powers vested in him by reg 14(3) of the Emergency (Miscellaneous Provisions and Powers) Regulation of 18 June 1983 made an order that:
- ‘(a) No person shall print, publish or distribute or in any way be concerned in the printing, publication or distribution of the Saturday Review for a period of one month from the date of the order, and
- That the printing press in which the said newspaper was printed shall for a period of one month from the date of the order not be used for any purpose whatsoever.’
- Consequent to this order, the second respondent (the Inspector-General of Police), sealed the offices of the Saturday Review.
- It was held that the Competent Authority was neither unreasonable nor wrong in deciding to act in terms of the Emergency Regulations, and that any rights of the Company that might be affected were not fundamental rights recognized and enforceable under the Constitution.
- Details of the arguments and submissions by counsel are taken from a Sri Lankan newspaper The Island 10 November 1983 at 1–3.
- 339 US 382 (1950).
- The author has considered only the most important decisions in which fundamental principles have been expanded and interpreted. The Supreme Court has heard 87 human rights cases from 1979 to 1983 and it is impossible to analyse each one of them in this discussion. However, it must be pointed out that in the vast majority of cases that were dismissed there was no elucidation of any of the human rights provisions contained in the Constitution.
- In Yasapala v Wickremasinghe (Application No 103 of 1980) it was decided that the right to form and join a trade union did not include the right to strike. This is a typical restrictive interpretation.
South African Journal on Human Rights
Volume 3, 1987 - Issue 1