women, girls and others (See Annex). Disciplinary action against offending public officials including the police
has been ordered by the Supreme Court in cases that have come before the court. Separate prosecutions can be
initiated under the Torture Act (1994), which as we saw, aims to integrate Sri Lanka’s obligations as a State party
to the Convention on Torture (CAT). This Act permits a prosecution and holds the State officials responsible for
inflicting torture and inhuman degrading treatment or failing to prevent this conduct by inaction. Cases of assault,
excessive punishment in schools, rape and violence or grave sexual abuse not amounting to rape have been
considered torture and or inhuman degrading treatment (See Annex). It can be argued that law enforcement
officials who fail to respond and prevent the implementation of the Domestic Violence Act, by apathy or inaction,
thus contributing to perpetrating domestic violence, infringe, Article 11. The definition of domestic violence
in the Domestic Violence Act (2005) as well as ragging under the Ragging Act (1998) clearly comes within the
definition of torture in Art 11 of the Constitution. It is also relevant that the Corporal Punishment Repeal Act 2005
reinforces the approach of the Supreme Court that this can be considered degrading and inhuman treatment.
(See Annex).
In a very important case of death under torture the Supreme Court interpreted Art 11 to recognize a
right to life which is not specifically mentioned in the Chapter on fundamental rights [See Annex]. A case
brought against a State hospital for inhuman degrading treatment during a delivery in childbirth was filed
under Article 11 but also settled before the litigation concluded. In the Manohari Pelaketiya case, the
Supreme Court did not consider whether the sexual harassment proved amounted to inhuman degrading
treatment in the workplace.
We have noted that the law on civil wrongs based on Roman Dutch Law recognizes a person’s right to
freedom from interference with bodily integrity and dignity. There is therefore a clear link between Art
11 and the law on civil wrongs in Sri Lanka which gives people an individual remedy for interference with
dignity and bodily integrity in the civil courts of the country (See Annex).
iii) Right to freedom from Arbitrary Arrest and Detention
This is covered by Article 13 and reinforces the criminal and civil law described in the Section on
substantive law. There are many cases where the Supreme Court has recognized violations of this right
and given remedies [See Annex]. Article 13 (6) also recognizes a right not to be prosecuted for a crime
retrospectively. An exception applies if the act was a crime according to customary international law. The
exception was recognized in the Sepala Ekanayaka case (1987) on hijacking (See annex). There have been
many developments in the area of international customary law relating to crimes committed in armed conflict,
and it is not clear whether these developments will be recognized by Constitutional interpretation, as within
the exception to create criminal responsibility for conduct that was not a crime in our national law.
iv) Right to Freedom of Speech and Expression Art 14 1 (a) and the Right to Information
Art 14 (A) (1)
Supreme Court jurisprudence has recognized a right to information as part of this right [See Annex].
The 19th Amendment to the Constitution now recognizes a fundamental right to information. (Article
14 A). This right however can be exercised only where the information is held by State authorities or
persons in possession of information in relation to any of these State institutions. Art. 14 (A)(1) to (d).
The recent enactment of legislation on the Right to Information (Right to Information Act 2016) will help
COMPENDIUM ON LAW, GENDER BASED VIOLENCE AND REPRODUCTIVE RIGHTS
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