to provide relief and remedies in this area. It can contribute to giving access to information, that can
strengthen responses to GBV and protection of reproductive health and rights. In the Manohari Pelaketiya
case, the Supreme Court held that disciplinary action taken by school authorities against a female teacher
for publicly speaking about her sexual harassment on a TV programme, amounted to an infringement of
her right to freedom of speech under the Constitution.
Important Rights that can impact on GBV and are not recognized in the Constitution
1) Right to Privacy and Right to Express Informed Consent
These rights are recognized in the law on civil wrongs based on Roman Dutch Law. We have observed
that the Criminal Law as expressed in the Penal Code recognizes the concept of informed consent and the
right to privacy in relation to the human body, in Chapter XVI on offences to the human body, and that
these concepts determine the legal requirement of obtaining consent to blood tests.
The Constitution however does not recognize a fundamental right to privacy. The 19th Amendment
now refers to the right to impose restrictions for the protection of privacy and confidentiality. (Art 14 (A)
(2)). This appears to be an indirect recognition of a right to privacy.
2) Right to Health and Education
Sri Lanka’s Constitution (1978) following the Indian Constitution and others in South Asia influenced
by this model, does not recognize access to health or education as justiciable rights that can be enforced
by Court procedures. Access to education is encouraged by a Directive Principle on State Policy in Ch.
IV which says that the“State has an obligation to eradicate illiteracy and assure all persons the right to
universal and equal access to education at all levels.” Art 27 (2). There is no reference at all to health
though a Directive Principle requires the State to achieve an “adequate standard of living for all citizens
and their families including adequate food.” (Art 27 ((2)(c)).
Sri Lanka’s State policies since the 1940s and prior to independence from British colonial rule recognized a
State obligation to provide State resourced access to education at all levels and also health. There has been no
backtracking on these policies, though budgeting for State facilities has been progressively reduced and private
sector institutions encouraged to develop as an alternative path of access to education and health services.
As observed earlier the right to access to education has been litigated in cases of fundamental rights on
the basis of violation of the right to equality in Art 12 (1). Similar cases have not been brought in regard to
access to health services and food security, even though malnutrition in the country has reached serious
levels that impact on health.
Compulsory Education Regulations introduced in 1997 under the Education Ordinance (1939) give children
between the ages of 12-14 a right of access to a school. Recently introduced legislation, the ICCPR Act (2007),
recognises every citizen’s right of access to basic services provided to the public by the State (S. 6 (1)(b)). This
provision would include education and health. It would include nutrition if and when there are facilities to
provide that service to some sectors of the public such as children and pregnant women. A procedure of
enforcement is included in the ICCPR Act. A person can petition the High Court against an infringement or
threat of infringement of these rights by executive or administrative action by State officials. The procedure
is outlined in S. 7 (2), and a proviso to that section, and excludes an infringement or threatened infringement
38
COMPENDIUM ON LAW, GENDER BASED VIOLENCE AND REPRODUCTIVE RIGHTS