003-SLLR-SLLR-2003-1-SRIYANI-SILVA-WIFE-OF-JAGATH-KUMARA-DECEASED-v.-IDDAMALGODA-OFFICER-.pdf
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SRIYANI SILVA (WIFE OF JAGATH KUMARA-DECEASED)
v.
IDDAMALGODA, OFFICER-IN-CHARGE,
POLICE STATION, PAYAGALA AND OTHERS
SUPREME COURT
S.N. SILVA, CJ.
BANDARANAYAKE, J„ ANDEDUSSURIYA, J.
SC APPLICATION No. 471/200029th AUGUST AND 29th NOVEMBER
2001,25th MARCH, 29th APRIL, 20th MAY, 6th AND 10th JUNE 2002
Fundamental Rights – Articles 11,13(1) and 13(2) of the Constitution – Deathofdetenue in Police custody in consequence of alleged torture-Acquired rightto enforcement – Locus standi of the widow to prosecute such right – Articles17 and 126(2) of the Constitution – Time bar – Interpretation of statutes.
On 12.6.2000 the deceased was arrested and kept in custody at the PayagalaPolice Station where he remained in custody until he was produced before theMagistrate on 17.06.2000 when he was remanded to prison. On 20.6.2000 thedetenue died at the Remand Prison. There is prima facie evidence includingmedical evidence to the effect that the deceased was assaulted whilst in policecustody and his death resulted by reason of such assault.
A petition was filed on 18.7.2000 on behalf of the petitioner (the deceaseddetenue). On 23.8.2000 on the day it was for support, the court allowed coun-sel to amend the petition by substituting the widow of the deceased as the peti-tioner. The amended petition was allowed by court on 23.10.2000. At the hear-ing of the application two preliminary objections were raised on behalf of therespondents:
The petitioner had no locus standi to make this application in view ofArticle 126(2) of the Constitution which provides that the personwhose rights are infringed may by himself or by an attorney-at-lawapply for relief. The right is personal to the aggrieved person. Henceif he is dead a legal representative cannot initiate proceedings underthat Article.
The petitioner’s (the widow’s) application is out of time as she cameinto the case only on 23.8.2000 after the lapse of one month from thedeath of the deceased.
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The petitioner alleged infringement of rights, inter alia, under Articles 11,13(1)and 13(2) of the Constitution.
Held (Edussuriya, J. dissenting):
Article 17 of the Constitution provides for the entitlement to relief forinfringement of fundamental rights and Article 126 deals with the fun-damental rights jurisdiction of the court and its exercise.
The deceased detenue who was arrested, detained and allegedly tor-tured and thereby died acquired a right under the Constitution to seekredress from the Court for violation of his fundamental rights. Hencewhen there is a causal link between the death of a person and theprocess, which constitutes the infringement of such person’s funda-mental rights any one having a legitimate interest could prosecute thatright in terms of Article 126(2) of the Constitution. There would be noobjection in limine to the wife of the deceased instituting proceedingsin the circumstances of this case.
The golden rule of plain, literal and grammatical construction has tobe read subject to the qualification that the language of the statute isnot always that which a grammarian would use.
Per Bandaranayake, J.
“It could never be contended that the right ceased and would be inef-fective due to the intervention of the death of the person, especially in circum-stances where the death in itself is the consequence of injuries that constitutethe infringement. If such an interpretation is not given it would result in a pre-posterous situation in which a person who is tortured and survives could vin-dicate his rights in proceedings before the court, but if torture is so intensivethat it results in death, the right cannot be vindicated in proceedings before thiscourt. In my view a strict literal construction should not be resorted to where itproduces such an absurd result.”
The original petition was filed within time. Hence the application iswithin time as provided by Article 126(2).
APPLICATION for relief for infringement of fundamental rights (Preliminaryobjections)
Case referred to:
Somawathie v Weerasinghe and Others (1990) 2 Sri LR 121 (distin-guished)
Corocraft v Pan-Am (1969) Q B 616 at Pg 638
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Lyons v Tucker (1880) 6 Q B D 660 at Pg 664
Barru v Lachchman 111 PR 1913 at Pg 417
Rananjaya Singh v Baijnath Singh and Others AIR 1954 S.C. 749,752
Chatenay v Brazilian Submarine Telegraph Co (1891) 1 Q B 79, 85
Abel v Lee (1871) L.R. 6 P 365 at 371
Premalal de Silva v Inspector Rodrigo and Others (1991) 2 Sri LR301
J.C. Weliamuna for petitioner.
Manohara de Silva for 1st respondent.
Saliya Peiris for 2nd and 3rd respondents.
Viveka Siriwardena de Silva for 5th to 7th respondents.
Cur.adv.vult
December 10, 2002
SHIRANI A. BANDARANAYAKE, J.
This is an application filed by the wife of a deceaseddetainee, praying for a declaration that her deceased husband’sfundamental rights guaranteed by Articles 11, 13(1) and 13(2) ofthe Constitution were violated, and claiming for a sum of RupeesOne Million as compensation from the 1st to 4th respondents andthe State.
The initial petition was filed on 18.07.2000 by an attorney-at-law of the Legal Aid Commission on behalf of the petitioner andwas listed for support for leave to proceed on 23.08.2000. On thatday, learned counsel for the petitioner, who supported the applica-tion moved to amend the caption to read as on behalf of the wife asthe legal representative of the deceased. Learned counsel for thepetitioner submitted that the prayer to obtain compensation was forthe deceased’s wife and for the minor child of 2 1/2 years of age.The Court allowed the petitioner to change the caption and theamended petition dated 30.08.2000, filed on 25.09.2000 was sup-
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ported on 23.10.2000. On that day, this Court granted leave to pro-ceed for the alleged infringement of Articles 11,13(2) and 17 of theConstitution.
When this matter was taken up for hearing, two preliminaryobjections were raised on behalf of the respondent, viz.,
the petitioner has no locus standi to make this applica-tion; and
the petitioner’s application is out of time.
Learned counsel for the respondents submitted that althoughthe petitioner claims that she is entitled to continue with this appli-cation, the question of continuation does not arise in this case, asthe detainee died before making any application alleging that therespondents violated his fundamental rights. The question beforeus therefore is, whether the wife or a third party of a deceased per-son, has a right to institute proceedings in this Court in terms of theprovisions of the Constitution, seeking relief for the alleged infringe-ment of a deceased person’s fundamental rights.
Fundamental rights are enshrined in Chapter III of theConstitution, which contains 8 Articles, viz., Articles 10 to 17 thatdeal with different freedoms and rights. Article 17, which is anenabling as well as a governing provision as far as the remedy foran infringement of a fundamental right is concerned, reads as fol-lows:
“Every person shall be entitled to apply to the SupremeCourt, as provided by Article 126, in respect of the infringe-ment or imminent infringement, by executive or administra-tive action, of a fundamental right to which such person isentitled under the provisions of this Chapter.”
This Article contains a clear enunciation of the entitlement ofany person to apply to the Supreme Court in respect of an allegedinfringement or an imminent infringement by executive or adminis-trative action. However, the applicability of this provision is subjectto the conditions and limitations enshrined in Article 126 of theConstitution. Article 126 of the Constitution deals with the funda-mental rights jurisdiction of the Courts and its exercise. Article
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126(2), which is directly relevant to the question under review, is inthe following terms:
“Where any person alleges that any such fundamental rightor language right relating to such person has been infringedor is about to be infringed by executive or administrativeaction, he may himself or by an attorhey-at-law on his behalf,■within one month thereof, in accordance with such rules ofcourt as may be in force, apply to the Supreme Court by wayof petition in writing addressed to such Court praying for reliefor redress in respect of such infringement. Such applicationmay be proceeded with only with leave to proceed first hadand obtained from the Supreme Court, which leave may begranted or refused, as the case may be, by not less than twoJudges”.
Learned counsel for the respondents relied heavily onSomawathie v Weerasinghe and Others (1) where an applicationwas filed by the petitioner on behalf of her husband for violation ofArticles 11 and 13 of the Constitution. In that case the majority heldthat Article 126(2) of the Constitution, when construed according tothe ordinary, grammatical, natural and plain meaning of its lan-guage, gives a right of complaint to the person affected or to hisattorney-at-law and to no other person.
I am of the view that Somawathie v Weerasinghe and others(supra) on which learned counsel for the respondents placed heavyreliance, can be distinguished, in relation to the facts of this case.
In Somawathie’s case (supra) application was made by thewife of the virtual complainant alleging the infringement of her hus-band’s fundamental rights guaranteed by Article 11,13(1), 13(2),13(5) and 13(6) of the Constitution. At the time the said applicationwas filed, he was in the Remand Prison, Mahara. The virtual com-plainant was named as the 4th respondent in that application.
The evidence before us in the present case, however, is dif-ferent.
The deceased detainee was taken into custody on
and was produced before the Magistrate on
on which occasion he was handed over to the Remand
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Prison, Kalutara. The petitioner averred that on 18.06.2000, themother and the sister of the deceased detainee visited the prison,but they were not allowed to meet him. On 19.06.2000, the uncle ofthe deceased detainee who visited the prison was informed that thedetainee was transferred to the Magazine Remand Prison on
On 21.06.2000, the Payagala Police informed the peti-tioner that the detainee had died on the previous night at theMagazine Remand Prison.
Several affidavits were filed along with the petition, whichindicated that the detainee was severely assaulted during the timehe was kept in police custody. I do not wish to venture into thedetails of the allegation on assault as we are only dealing with thepreliminary objections raised by the respondents at this juncture.However, I am of the view that it is necessary to refer to the postmortem report which was called by this Court at the time leave toproceed was granted on this application. This report refers to 20injuries, which were identified on the Head, Trunk, Upper limbs andLower limbs of the deceased and the AJMO had given the cause ofdeath as “Acute renal failure due to muscule cutaneous injuries fol-lowing blunt trauma”. The detainee, an averagely built male, was23 years of age at the time of his death.
It is to be noted that on 17.06.2000, at the time the detaineewas brought to the Remand Prison, Kalutara, he made a statementto one of the prison officials informing him that he was assaultedwhile he was kept at the Payagala Police Station (P6). Again on
at 2.50 p.m. the detainee had made a statementinforming that about 10 officers including the 2nd and 3rd respon-dents assaulted him at the Police Station.
Learned counsel for the 5th to 7th respondents concededthat factually the instant case could be distinguished fromSomawathie’s case (supra). Her position was that Article 126(2) ofthe Constitution was given a plain grammatical meaning inSomawathi'es case (supra) and the factual consideration shouldnot play a role in the interpretation of the plain and ordinary wordsof the provision.
Considering the crux of the arguments raised by learnedcounsel for the respondents, according to the provisions of the
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Constitution, a person other than whose rights are infringed cannotmake an application to vindicate the rights of another person, evenif that other person on whose behalf the application is made is notamong the living. Therefore a relative of a person, whose deathwas caused by torture, would not be able to obtain redress throughthe fundamental rights jurisdiction enshrined in our Constitution. Ifind it difficult to agree with these submissions made by learnedcounsel for the respondents for the following reasons.
It is to be noted that the sole object in statutory interpretationis to arrive at the intention of the legislature. Donaldson, M.R. inCorocraft v Pan-Am (2 said that,
“the duty of the Courts is to ascertain and give effect to thewill of Parliament as expressed in its enactments.”
In Lyons v Tucker Grove, J. stated that the golden rule ofplain, literal and grammatical construction has to be read subject tothe qualification that the language of statutes is not always thatwhich a grammarian would use.
Learned counsel for the petitioner contended that Article126(2) read with Article 17 of the Constitution provides a right for avictim to seek relief from this Court for an infringement or an immi-nent infringement of a fundamental right. Learned counsel drew ourattention to Bindra, who had stated that,
“If a statute which creates a right does not prescribe a reme-dy for the party aggrieved by the violation of such a right, aremedy will be implied and the party aggrieved may haverelief, in an appropriate action founded upon the statute. Thecreation of a new duty or obligation or the prohibition of anact formerly lawful carries with it by implication a corre-sponding remedy to assure its observance.”{Interpretation ofStatutes, 7th edition, pp. 729-730)
This concept, viz., a right must have a remedy, is based onthe principle which is accepted and recognized by the maxim ubijus ibi remedium – “there is no right without a remedy”. Thus, onecannot think of a right without a remedy as the right of a person andthe remedy based on the said right would be reciprocal.
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Considering the constitutional provisions, Chapter III of ourConstitution, which deals with the fundamental rights, guarantees aperson, inter alia, freedom from torture and from arbitrary arrestand detention (Articles 11,13(1) and 13(2) of the Constitution).Consequently, the deceased detainee, who was arrested, detainedand allegedly tortured, and who met with his death subsequently,had acquired a right under the Constitution to seek redress fromthis Court for the alleged violation of his fundamental rights. It couldnever be contended that the right ceased and would become inef-fective due to the intervention of the death of the person, especial-ly in circumstances where the death in itself is the consequence ofinjuries that constitute the infringement. If such an interpretation isnot given it would result in a preposterous situation in which a per-son who is tortured and survives could vindicate his rights in pro-ceedings before this Court, but if the torture is so intensive that itresults in death, the right cannot be vindicated in proceedingsbefore this Court. In my view a strict literal construction should notbe resorted to where it produces such an absurd result. Law, in myview, should be interpreted to give effect to the right and to sup-press the mischief. Hence, when there is a causal link between thedeath of a person and the process, which constitutes the infringe-ment of such person’s fundamental rights, any one having a legiti-mate interest could prosecute that right in a proceeding instituted interms of Article 126(2) of the Constitution. There would be no objec-tion in limine to the wife of the deceased instituting proceedings inthe circumstances of this case.
The second objection taken up by the 7th respondent wasthat this petition was filed after the mandatory one month periodprovided by Article 126(2) of the Constitution.
As pointed out earlier, the deceased detainee was taken intocustody on 12.06.2000. On 21.06.2000, the Paygala Policeinformed the deceased detainee’s father that the deceaseddetainee died on the previous night. Throughout this period, thedeceased detainee was in the custody of the police and theremand. The Legal Aid Commission filed the initial petition on
The application on behalf of the deceased detaineewas therefore filed, within time, as provided by Article 126(2) of theConstitution.
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For the reasons aforesaid, the preliminary objections takenby the respondents are overruled. Registrar is directed to takesteps to list this application for hearing. In all the circumstances ofthis case, there will be no costs.
S. N. SILVA, C.J. – I agree
EDUSSURIYA, J.
At the date of filing the original application under Article 126of the Constitution, namely, 18/07/2000, the person on behalf ofwhom it was filed (by an attorney-at-law) was already dead (died on20/06/2000) and as such there was no application which the Courtcould have entertained, and therefore it should necessarily havebeen rejected.
That application of 18/07/2000 should therefore be rejectednunc pro tunc. In any event, the Petitioner to that application can-not proceed with it. In the circumstances, the so called amendmentdated 23/08/2000 in which an entirely different person (the widow)is the Petitioner, becomes a new application, which is time barredaccording to the very Article (Article 126) under which the newPetitioner seeks redress, since the new Petitioner’s husband haddied on 20th June 2000. Then again there cannot be an amend-ment to an application which the Court cannot entertain.
It is settled law, that, by way of an amendment a party shouldnot be allowed to overcome a time bar or prescription.
Further, according to Counsel Weliamuna’s statement toCourt on 23/08/2000, (journal entry of 23/08/2000) the attorney-at-law had received instructions from the widow to institute proceed-ings on her behalf as legal representative of the deceased. If thatbe so, it is a fresh application that should be presented to Court bythe new Petitioner as legal representative, of the deceased.
. In the circumstances, the order of this Court allowing the pre-sent petition to be filed as an amendment was in my view made perincuriam for the reasons stated above.
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Further, according to paragraph 36 of the so called amendedpetition, the present Petitioner’s position is that the rights guaran-teed under Articles 11, 13 and 17 of the Constitution to thedeceased, devolved on the present Petitioner (widow) on the deathof her husband and she, the present Petitioner is therefore entitledto continue with the first application. Once again I repeat that thefirst application was one which the Court could not entertain in asmuch as the person on whose behalf it had been presented wasdead by the date of institution, and therefore there is no question ofcontinuing with that application.
Therefore the so called amended petition now before Courtis a new petition filed on 25th September 2000 though dated 30thAugust 2000 (vide the date stamped on the motion accompanyingthe so called amended petition) over three months after the deathof the person Whose fundamental rights had allegedly beeninfringed.
The attorney-at-law for the present Petitioner in fact filed anentirely new petition on 25th September 2000 under the guise of anamendment in an endeavour to overcome the time bar.
For the above mentioned reasons I uphold the preliminaryobjection raised by the learned State Counsel regarding time bar,in respect of the widow’s application and, consequently dismiss thisapplication.
The next question for decision is whether the widow of a per-son whose fundamental rights had been infringed is entitled tomake or continue with an application for redress under Article126(2) on the basis of devolution on the widow, of the right acquiredprior to death by a deceased person whose fundamental rights hadbeen infringed to seek redress.
Article 126(2) reads as follows:
“Where any person alleges that any such fundamental rightor language right relating to such person has been infringedby executive or administrative action, he may by himself orby an attorney-at-law on his behalf, within one month there-of, in accordance with such rules of Court as may be in force,apply to the Supreme Court by way of Petition in writing
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addressed to such Court praying for relief or redress inrespect of such infringement. Such application may be pro-ceeded only with leave to proceed first had and obtainedfrom the Supreme Court, which leave may be granted orrefused, as the case may be, by not less than two Judges.”
On a plain reading of Article 126(2) it is clear that where aperson’s fundamental rights have been infringed, that person byhimself on by an attorney-at-law on his behalf can seek redressfrom the Supreme Court.
The language contained in Article 126(2) is unambiguous asit stands and in my view excludes persons other than those namedtherein from seeking redress. Article 126(2) does not set out theheirs or the dependants of the person whose fundamental rightshave been infringed, as persons who could seek redress.
Counsel for the present Petitioner has cited the followingpassage from Bindra on Interpretation of Statutes in this connec-tion. “If a statute which creates a right does not prescribe a reme-dy for the party aggrieved by the violation of such right, a remedywill be implied and the party aggrieved may have relief, in an appro-priate action founded upon the statute. The creation of a new dutyor obligation or the prohibition of an act formally carries with it byimplication a corresponding remedy to assure its observance”.
There is nothing in the Constitution which implies that thewidow of a person whose fundamental rights were infringed has aright to relief or redress under Article 126(2). Besides, Article 126(2)provides a remedy to the person whose fundamental rights havebeen violated. The right to seek redress is only given to thosewhose fundamental rights have been infringed. Therefore this pas-sage in Bindra on Interpretation of Statutes – 7th Edition Page729-730 has no applicability to the matter presently before us.
In Somawathie v. Weerasinghe and Others whereinAmerasinghe J. stated that “….where the words are in themselvesprecise and unambiguous, and there is no absurdity, repugnance orinconsistency with the rest of the Constitution the words them-selves do best declare that intention. No more can be necessarythan to expound those words in their plain, natural, ordinary, gram-matical and literal sense”, and according to the majority decision a
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wife has no locus standi in a case where her husband’s fundamen-tal rights had been violated.
In that case the wife of the person whose rights had alleged-ly been violated presented an application complaining of theinfringement of the fundamental rights of her husband and accord-ing to the majority decision, Article 126(2) only permitted those per-sons named therein to make such an application and accordinglyheld that the wife had no locus standi to maintain the application.
Kulatunge, J. taking a dissenting view on the question oflocus standi of the wife stated that in circumstances of grave stressor incapacity particularly where torture resulting in personal injury isalleged to have been committed, next of kin such as a parent or thespouse may be the only people able to apply to this Court in theabsence of an attorney-at-law who is prepared to act as Petitioner;and if such application is also supported by an affidavit of thedetenue either accompanying the petition or filed subsequentlywhich would make it possible to regard it as being virtually theapplication of the detenue himself, this Court may entertain suchapplication notwithstanding the failure to effect literal compliancewith the requirements of Article 126(2).
In this connection I may also refer to Fundamental Rights inSri Lanka (A Commentary) (1993) where Justice Sharvananda hasstated “that the injured person alone has locus standi to complainof the infringement of his fundamental rights” (pages 408 and 410).
Bindra on Interpretation of Statutes in Chapter XI states thatit is a rule of construction of statutes that in the first instance thegrammatical sense of the words is to be adhered to unless therebe some strong and obvious reason to the contrary and that wherethere is no ambiguity in the words there is no room for construction,and that the necessity for interpretation does not arise where thelanguage is plain. Further that if language is plain, consequenceswhatever they may be should be disregarded so that even if theplain meaning of the language results in an absurdity the plainmeaning must be given effect to. That if the result of giving effect tothe plain meaning is unfortunate it is for the Legislature to takeaction to remedy the defects of the law as enacted and it is not forthe Courts to usurp the functions of the Legislature and by strain-
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ing the meaning, ignoring the clear terms of the law, seek to evadethe consequences, which in the opinion of Court may prove ill-fraught, Barru v. Lachhman <4>, See also Rananjaya Singh v.Baijnath Singh and Others <5). The effect of the words is a questionof law. Chatenay v. Brazilian Submarine Telegraph Co.S6'1 perLindley, L.J. I may mention that well established rules of interpre-tation cannot be disregarded to give effect to reasonableness.
At page 438 Bindra states, “where the meaning of words isplain, it is not the duty of the Courts to busy themselves with sup-posed intention. A Court cannot stretch the language of a statuto-ry provision to bring it in accord with the supposed legislativeintention underlying it unless the words are susceptible of carry-ing out the intention, (page 438)
In Abel v. Lee <7) Willes J. stated “I utterly repudiate thenotion that it is competent to a judge to modify the language ofan Act of Parliament in order to bring it into accordance with hisviews as to what is right and reasonable”.
Further, it is also a golden rule of interpretation that Courtscannot fill in gaps or rectify defects when the words are unam-biguous.
In this connection I may also refer to Article 30 (1) (b) andArticle 30 (1) (c) of the Governments' Proposals forConstitutional Reforms of October 1997 and the Constitution ofthe Republic of Sri Lanka Bill August 2000 which made provision
for an aggrieved person who is unable or incapable of mak-ing an application under Article 17 by reason of physical, socialor economic disability or other reasonable cause, an applicationto be made on behalf of such person by a relative or friend ofsuch person if the person aggrieved raises no objection, and (2)also provided for an application to be made in respect of anyperson or persons affected, in the public interest, by any personor by any incorporated or unincorporated body of persons actingbona fide. So that even at that stage it was not sought to widenthe scope of Article 126 (2) to enable a widow or heirs of adeceased person whose fundamental rights had been violatedto file an application for redress. It is therefore safe to conclude
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that the intention of the Legislature under Article 126 was togrant relief only to the person whose fundamental rights hadbeen violated.
Article 17 read with Article 126 (2) provides a remedy to thosewhose fundamental rights have been infringed and Article 126
categorically states that the person whose fundamentalrights have been infringed, himself or by an attorney-at-law onhis behalf should made an application for redress. There isnothing therein which even remotely suggests that a widow hassuch a right or that such right devolves on a widow or heirs of aperson whose fundamental rights have been infringed.
In the circumstances it would be preposterous on our part tohold that the Legislature intended that the right to apply forredress should pass to the heirs or that the heirs of a deceasedwhose fundamental rights had been infringed were entitled toapply for relief under Article 126 (2).
In passing I may add that the laws of this country adequate-ly provide for the widow or the dependants of a deceased per-son who met with this death as a result of a wrongful act ofanother to seek compensation based on loss of support or main-tenance and such compensation has to be calculated on evi-dence.
Counsel for the present petitioner has drawn the attention ofCourt to the fact that Sri Lanka has ratified the InternationalConvention Against Torture and Other Cruel, Inhuman orDegrading Treatment or Punishment and is obliged to grantredress to victims of torture and in the event of the death of avictim of torture the dependants are entitled to compensation,and as such, Article 126 should be construed accordingly.
The International Convention Against Torture was ratified bySri Lanka in 1994 whereas the Constitution was promulgated in1978. It certainly cannot be said that one can read into Article126 (2) of the Constitution of 1978 a Legislative intention in1978, to grant relief to a widow of a person whose fundamentalrights have been infringed because Sri Lanka ratified the
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International Convention Against Torture sixteen years later in1994, containing a provision to grant relief to dependants of vic-tims of torture in the event of the death of a victim as a result oftorture.
By this application the widow of the person whose funda-mental rights were allegedly infringed has applied for compen-sation of the basis that the “rights guaranteed under Articles11,13 and 17 of the Constitution devolved upon the Petitionerand she is entitled to “continue” with this application seekingrelief” (Paragraph 36 of the amended petition”.)
Under Article 17 read with Article 126 of the Constitution,what are the rights that accrue to a person whose fundamentalrights or language rights have been infringed or are about to beinfringed?
Article 126 (2) sets out that where any person alleges that afundamental right or language right relating to him has beeninfringed or is about to be infringed he may by himself or by anattorney-at-law apply to the Supreme Court for relief or redressin respect if such infringement.
Therefore the right to relief and the right to apply for relief arevested only in the person whose fundamental rights have beeninfringed and are personal rights which accrue to him and himalone and therefore those rights must necessarily die with him.However, where an applicant under Article 126 (2) for relief, diesafter the Respondents had joined issue with the applicant, thatis after litis contestatio, then the right to relief will pass to thelegal representatives, that is to the estate of the deceased.
In Premalal de Silva v. Inspector Rodrigo and others<8) theapplicant Premalal de Silva disappeared subsequently and thisCourt directed compensation to be paid to the legal representa-tives of the applicant in the event of it being established that theapplicant was dead.
In any event, even if the right to relief which accrued survivesthe death of the person whose fundamental rights were infringedas claimed by the Petitioner's Counsel, then it is the legal rep-
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resentative of the deceased representing the estate of thedeceased who can claim relief since that right to claim relief(compensation in this instance) that has survived is an asset ofthe estate of the deceased. In this instance the widow has notfiled her petition in this Court as the legal representative of thedeceased (vide caption), although counsel Weliamuna had stat-ed on 23rd August 2000 (Vide journal entry 23/08/2000) that hemoves to amend the caption to read “on behalf of K.A. Sriyanias the legal representative of M.K.L. Jagath Kumara thedeceased” and for that reason too the present Petitioner cannotmaintain this application.
For the above mentioned reasons, I uphold the objectionraised by the learned State Counsel that the Petitioner (widow)has no locus standi to maintain this application.
I therefore dismiss this application. No costs are orderedsolely because the petitioner is a widow.
Preliminary objections overruled.