History & Fundamental Rights

Fundamental rights
 
The fundamental rights declared and recognized by the Constitution of Democratic Socialist Republic of Sri Lanka "shall be respected, secured and advanced by all the organs of government, and shall not be abridged, restricted or denied save in the manner and to the extent provided by the Constitution" (Article 4(d)).
These rights are set out in Chapter III of the Constitution and may be summarized as follows:
 
(A) Rights available to every "person", namely :
  • Freedom of thought, conscience and religion
  • Freedom from torture or cruel, inhuman or degrading treatment
  • Right to equality before the law and the equal protection of the law
  • Right to non-discrimination on grounds of race, religion, language, caste, sex, political opinion or place of birth
  • Right not to be arrested excepted according to procedure established by law, and to be informed of the reason for the arrest
  • Right not to be kept in custody without a judicial order for longer than the period prescribed by law.
  • Right of a person charged with an offence to be heard in person or through an Attorney-at-Law at a fair trial by a competent court
  • Right not to be punished with death or imprisonment except by order of a competent court made in accordance with procedure established by law
  • Right to be presumed innocent until proved guilty
  • Right not to be punished retrospectively, i.e. for something that was not an offence at the time it was committed
(B) Rights (over and above the foregoing rights) that are available to every "citizen" namely:
  • Freedom of speech and expression including publication
  • Freedom of peaceful assembly.
  • Freedom of association.
  • Freedom to form and join a trade union
  • Freedom to manifest one's religion by observance, practice and teaching.
  • Freedom, by oneself or in association with others, to promote one's own culture and use one's own language
  • Freedom to engage in any lawful occupation, profession, trade, business or enterprise.
  • Freedom of movement and of choosing one's residence within Sri Lanka.
  • Freedom to return to Sri Lanka
  • If the Court finds that there is an infringement or imminent infringement of any of the petitioner's fundamental rights set out in the Constitution, it is empowered to "grant such relief or make such directions as it may deem just and equitable in the circumstances".
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The "right to life"
 
It may be noted that Sri Lanka's Constitution does not expressly recognize the right to life.

Sri Lankan law (like the law on other subjects) is derived from a variety of sources, as under:
 
  1. The Roman Dutch law;
  2. The English law;
  3. The personal law;
  4. Sri Lanka's statute law;
  5. Indigenous customs.
 
This is mainly due to two factors. The political history of the country is the first factor, as the country was in the last five centuries been ruled successively, by the Portuguese, the Dutch and the British, until it became independent. The second factor is the heterogeneous character of its population.
 
Roman Dutch law
 
The Roman Dutch law is not applicable in its entirety in the Sri Lanka but only so much thereof as may be shown to have been introduced into Sri Lanka. The Jurists most commonly referred to (in the context of Roman Dutch law) are the following authors:-
  1. Voet (who is the most respected);
  2. Grotius;
  3. Simon Van Leeuwen;
  4. Van der Keessel
  5. Van der Linden
(Weeramantry, page 38).
 
Roman Dutch law is regarded as the "common law" of Sri Lanka, but statute law may provide a different rule.
 
English Law
 
English law has worked its way into Sri Lanka, partly through statutes which themselves enacted rules of English law, partly by tacit adoption by judicial decisions and partly by tacit use of English legal concepts (Weeramantry, page 44).
 
Among the statutes directly introducing English law into Sri Lanka is the Civil Law Ordinance No. 5 of 1852 (Cap. 79), which, by sections 2 and 3, introduced the law of English and in maritime and commercial matters (unless there is a contrary provision in a statute of Sri Lanka).
 
Personal law
 
As to personal law (mentioned above), it consists of:
  1. the Kandyan law;
  2. the Thesawalamai ; and
  3. the Muslim law.
 
The Thesawalamai is a system of personal law, applicable to "Malabar inhabitants of the Province of Jaffna" and was codified by the Dutch in 1707.
 
Sri Lanka Statutes
 
Again specific statutes of the country have replaced Roman Dutch Law on particular matters. Thus, the age of majority in Roman Dutch law which was 25 years was replaced by the Age of Majority Ordinance (Cap. 66) which introduced the age of majority as obtaining in English Law.
 
Similarly the Roman Dutch institution of "Community of spouses" was abrogated in Sri Lanka by the Matrimonial Rights and Ordinance (15 of 1876).