A/HRC/7/3/Add.6
page 18
institutions to maintain consistent relationships with civil society, stated that the appointment
process caused civil society in Sri Lanka to question the constitutionality of the NHRC, thereby
affecting its credibility.
62. The Government reported that the direct appointment by the President of the
Commissioners was compelled by circumstances in which the Constitutional Council was not
validly constituted and thus could not make any valid recommendations. The President also
holds the residual power of appointment in the event of any such consultative forum not being in
existence. The non-establishment of the Constitutional Council was not due to any fault on the
part of the President or the Government but, rather, to a weakness in the legal provisions. The
issue is now being addressed, reports the Government.
5. Compensation
63. Article 17 of the Constitution entitles every person to a remedy for the infringement of
fundamental rights by State action. Furthermore, article 126 (2) states that “any person [who]
alleges that any such fundamental right … has been infringed … may … apply to the
Supreme Court … praying for relief or redress in respect of such infringement”. In granting
relief, the Supreme Court has construed the relevant constitutional provisions as containing a
right to compensation.17
64. The Supreme Court has in its jurisprudence interpreted torture as “any act by which severe
pain or suffering, whether physical or mental, is intentionally inflicted on a person by a public
official acting in the discharge of his executive or administrative duties or under colour of office
for such purposes as obtaining from the victim or a third person a confession or information,
imposing a penalty on the victim … or coercing the victim or third person to do or refrain doing
something”. 18
65. The Government reported that Sri Lankan jurisprudence provides that a torture victim may
not only claim for the harm suffered but also, according to the Supreme Court, claim for future
medical expenses. These expenditures may be charged to the State. In recent years, the
17
Saman v. Leeladasa and Another, S.C. Application No. 4/88, 6 and 7 October 1988:
Per Fernando, J.: “An impairment of personality - the violation of those interests which
every man has, as a matter of natural right, in the possession of an unimpaired person, dignity
and reputation, and whether it be a public or private right - committed with wrongful intent
established liability in the actio injuriarum; patrimonial loss, as well as damages for mental pain,
suffering and distress can be recovered. When the Constitution recognized the right set out in
article 11, even if it was a totally new right, these principles of the common law applied, and the
wrongdoer who violated that right became liable, and his master too, if the wrong was committed
in the course of employment. It was not necessary for a new delict to be created by statute or
judicial decision.” Per Amerasinghe, J.: “Our Court has preferred to treat a violation of a
Fundamental Right as something sui generis created by the Constitution and not as a delict.”
18
De Silva v. Chairman Ceylon Fertilizer Corporation, (1989) 2 S.L.R. 393.
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