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Sat, 18 April 2015 16:10:47
Sri Lanka's public interest litigation under spotlight
02 Jul, 2009 11:04:57
July 02, 2009 (LBO) - Many of the safeguards guaranteed by Sri Lanka's laws of evidence were missing in recent fundamental rights petitions where private parties were involved, and there was a reliance on third party accounts, a senior lawyer said.
Senior lawyer K Kanag-Isvaran said the articles 10 to 15 of Sri Lanka's constitution guaranteed the fundamental rights of citizens. Some of the rights were also available to non-citizens.

Under article 126 of the constitution, only the Supreme Court could hear and make determinations on the "infringement or imminent infringement" of fundamental rights.

"However the infringement should be by executive or administrative actions by a State party," Kanag-Isvaran told a forum organized by the junior bar of Sri Lanka's bar association.

"Clearly therefore, this jurisdiction has no application to private persons and private bodies corporate."

A person alleging violation of his fundamental right by executive or administrative action has to apply to court within one month.

"However in recent times the Supreme Court has evolved the doctrine of 'public trust' whereby broadly stated, bodies which have access to public funds, whether they be private or public bodies, are deemed to hold those funds in trust for the public," Kanag-Isvaran said.

Under the doctrine of 'public trust; which had been recently evolved, any person could petition the Supreme Court under its fundamental rights jurisdiction and be "granted relief as the Court thought fit."

"A wide and sweeping jurisdiction," Kang-Isvaran observed.

The opening up of the fundamental rights jurisdiction in this way had proved extremely popular.

But the process had "not infrequently" relied on affidavit evidence relying on "third party accounts of events," Kanag-Isvaran said.

He said "many of the safeguards guaranteed by the laws of evidence," procedures, and relief available under Sri Lanka's company law to deal with financial woes of a company with the "consultation and full participation of all stakeholders, addressing the interests of all parties concerned and of the economy in general" were unfortunately not available in fundamental rights applications.

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