This writer was influenced by Social Action Litigation in India in the mid 80’s. It was said, “People now know that the Court has constitutional power of intervention, which can be invoked to ameliorate their miseries arising from repression, governmental lawlessness and administrative deviance. Under trial as well as convicted prisoners, women in protective custody, children in juvenile institutions, bonded and migrant labourers, unorganised labourers, untouchables and scheduled tribes, landless agricultural labourers who fall prey to faulty mechanization, women who are bought and sold, slum-dwellers and pavement dwellers, kinds of victims of extra judicial executions - these and many more groups now flock to the Supreme Court seeking justice. Some of the categories relevant to India can be replaced by those on poorer situations in Sri Lanka.
Chief Justice Justice Chandrachud in Kesavnanda said, - The Court is not chosen by the people and is not responsible to them in the sense in which the House of the People is. However, it will win for itself a permanent place in the hearts of the people and augment its moral authority if it can shift the focus of judicial review from the numerical concept of minority protection to the humanitarian concept of the protection of the weaker section of the people. The elevation of Justice Krishna Iyer to the High Bench in 1974 reinforced the tendency towards judicial populism. He unremittingly insisted that the law is meant for the people and not the people for the law.
Social Action Litigation (SAL)
SAL focuses on exposure of repression by the agencies of the state, notably the police, prison and other custodial authorities. Close to this category are the cases which seek to ensure that authorities of the state fulfill the obligations of law under which they exist and function. In other words, much of SAL is concerned with combating repression and governmental lawlessness.
Evidentiary problems in SAL
The problems of proof are the most severe in cases of State repression and there seems emergent a common pattern of argumentation by State counsel which make these problems more acute. First, State counsel deny on affidavit any or all allegations of torture or terror. Second, they contest if not the standing, the bona fides or the degree of reliable information of the social activists who come to the Court. Often wildest ulterior motives are attributed to them.” Third, they decry the sources on which the SAL petitioners rely: mostly media and social science investigative reportage. Fourth, they raise all kinds of claims under the law of evidence and procedure to prevent the disclosure of documents relevant to the determination of violation of fundamental rights. Fifth, even when disclosed, there is always the possibility of impugning their evidentiary value.
When despite all this, the State is likely to lose the proceedings in favour of the SAL petitioners, it proceeds to give concessions and undertakings, thereby avoiding a decision on the merits.
Applications to Human Rights Commission of Sri Lanka in 2019 (See box stories)
Suffice to say neither submission received even an acknowledgement. We do not seem able to take suffering seriously or prejudices about the “who” take precedence.
Old structures, new concerns
SAL requires “creeping” jurisdiction for its progress. The fundamental issue of how the Court should make the state and its agencies fully liable for deprivations or denials of fundamental rights is a vexed issue. It is the task of the SAL entrepreneurs to ensure that these issues are ultimately reached with desired results. But, in the meantime, the Court or tribunals can rule through interim directions and orders. Bit by bit, it can seek improvement in the public administration making it more responsive than before to the constitutional ethic and law.
The quest for human rights for the poor is a ceaseless enterprise. Taking suffering seriously is a noble act. It requires long distance marathoners! Not everyone possesses the fitness to do so effectively.
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Innocent man suffered over Kadirgamar assassination
Is it within the purview of the HRC to:
a. Go over the case record and potentially seek compensation for the surviving family members?
b. Define a method whereby prisoners who are either in remand or have been sentenced wrongfully are legally protected?
The facts as found @ http://newshub.lk/en/2019/07/02/innocent-man-suffered-over-kadirgamar-as...
Muttiah Sahadevan, named a suspect in the assassination of Foreign Minister Lakshman Kadirgamar, died in remand prison on June 22, and the Colombo high court concluded the related hearing. A daily wage earner, Sahadevan was arrested by the police after he cut down branches of a tree near a balcony of a house close to the Kadirgamar’s residence. It was said that the shooter had targeted the minister through a window near that balcony. Sahadevan had to spend 14 years behind bars, but the owner of that particular house, a rich son of a former top policeman, never got arrested. During his final years, Sahadevan suffered acutely from diabetes and had lost use of his kidneys. He could not read or write in Sinhala or Tamil, but a confession was forced out of him to brand him an LTTE member.
Sahadevan said tearfully that he was assaulted for a crime he did not commit, which he stressed in courts too. The 58-year-old resident of Kirulapone lived with his wife, Dhanalakshmi aged 57 years, and two children, who are married. He used to go to a house at Buller’s Road to do menial work for his living. On 13.08.2005, he was arrested by the CCD as he was returning with his wife from the Kirulapone fair. He was taken to the home of one Thalaisingham at Buller’s Road, and was asked if he cut down the branches of a tree close to the balcony of the house. He admitted having done that, with Thalaisingham saying Sahadevan had done that on his instructions.
Sahadevan had been used to cut down branches of this Pihimbiya tree every 1 1/2 month or so, and he found nothing unusual about it. However, he was taken to the CCD, where he spent three months, after which was remanded. He was charged before the Colombo high court of having conspired and aided in the Kadirgamar assassination. The other accused were LTTE leader Prabhakaran, intelligence leader Pottu Amman and Babu, neighbour and relative of Sahadevan, who was arrested because his phone number was found from the latter’s phone. Sahadevan was charged on the basis of a confession said to have been obtained from him under the PTA. He did not know what it contained.
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Accountability for lapses leading to death, injury and destruction to property following Easter Sunday blasts in April 2019
I write as a citizen. Triggered by the story of Kieran Alexander Shafritz de Zoysa, an eleven year old boy who died in one of the blasts and is half Sri Lankan with a Sri Lankan mother. His profile is attached. My petition is on behalf of those who died, injured and suffered pecuniary losses. Hence I state:
a. The State is obliged to protect the life and limb of its citizens whilst they also have a reasonable expectation of protection of their belongings. The April 21 blast we know resulted in death and destruction. Given information in the public domain with malice to none has the Actg IGP and /or National Police Commission sought to inquire into responsibility within the Police, lapses if any and consequences for any lapses? If not why not?
b. Several days after the blasts organised violence by mobs was seen directed at Muslim owned properties. Has the Actg. IGP and /or National Police Commission sought to inquire into responsibility within the Police, lapses if any and consequences for any lapses? If not why not?
c. Following from (a) and (b) were any employee of the Police Department obstructed from performing his/her duties leading to the outcomes raised above and if yes, what protection can or should be provided to prevent recurrence? If not why not?
I would appreciate the attention of the HRC and inquiry.
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