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SC grants leave for widow's Rights Plea

by Kumar Wethasinghe

" It could never be contended that the Fundamental Rights ceased and would become ineffective due to the intervention of a death of a person. Especially in circumstances where death in itself is the consequence of injuries that constitutes the infringements. Then any one having legitimate interests could prosecute that right in a proceeding instituted in terms of Article 126(2) of the Constitution, observed Justice Dr (Mrs) Shirani Bandaranayake when the Supreme Court overruled the preliminary objections and leave granted for the Rights plea made by the widow on behalf of her husband who died in Payagala police custody.

The Bench comprised Chief Justice Sarath N Silva PC , Justices Dr (Mrs) Shirani Bandaranayake and P.Edusuriya.

The CJ agreed with the judgement of Justice Bandaranayake while Justice Edusuriya dissented and dismissed the application.

In this case the petitioner Kotabadu Durage Sriyani Silva, widow of a person who died while under the Payagala police custody, had filed a Rights Plea on behalf of her the deceased husband and their infant child, seeking rupees one million against violation of her husband's Fundamental Rights by the Payagala police.

On July 18, 2000, her application was listed for support through the Legal Aid Commission. However, the Counsel for respondents raised two preliminary objections that the petitioner had no 'locus standi' in the case and that the application was made out of time.

The petitioner had cited OIC Payagala Police Station, Iddamalge Prasanna Wickremaratne, Ananda, PC Chandrasiri (21568), both of Payagala police station, Commissioner General of Prisons, the IGP and the AG as the respondents.

Dr (Mrs) Shirani Bandaranayake , in the course of delivering the judgement of overruling the Primary Objections raised by the respondents and directing the Registrar of the Supreme Court to list the instant appeal for hearing, dealt with the submissions made by the Counsel. "If a state which creates a Right does not prescribe a remedy for the party aggrieved by the violation of such a Right, a remedy will be implied and the party aggrieved may have relief in an appropriate action founded upon the statute. The creation of a new duty or obligation or the prohibition of an act formerly lawful carries with it implication remedy to assume its observance as the saying " There is no Right without remedy".

The deceased detainee who was arrested, detained and allegedly tortured and who met with his death subsequently, had acquired the Right under the Constitution to seek redress from the Supreme Court for the alleged violation of Fundamental Rights.

It could never be contended that the Fundamental Right ceased and would become ineffective due to the intervention of a death of a person. Especially in circumstances where death in itself is the consequence of injuries that constitutes the infringement.

If such an interpretation is not given it would result in a preposterous situation in which a person who is tortured and survives could vindicate his Rights in proceedings before this Court, but if the torture is so intensive that it results in death, the Right cannot be vindicated in proceedings before this Court.

In my view, a strict literal construction should not be resorted to where it produces such an absurd result. The law in my view , should be interpreted to give effect to the right and to suppress the mischief. Also when there is casual link between the death of a person and the process which constitutes the infringement of such persons' Fundamental Rights .

Anyone having legitimate interest could prosecute that right in proceeding instituted in terms of Article 126 (2) of the Constitution.

As for the second preliminary objection that the application was made out of time ,it is evident that the police arrested the deceased on June 12, 2000 and the police had informed to the petitioners family that the deceased died on June 21, 2000. Thereafter Legal Aid Commission had filed this application on July 18, 2000 which is well within the prescribed time

J.C.Weliamuna appeared for the petitioner. Manohara de Silva and Saliya Peiris appeared for the first and second third respondents respectively.

State Counsel Vivaka Siriwardana de Silva appeared for the State.

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