There are three serious shortcomings with article 126 of the constitution of Sri Lanka which has serious implications on the enjoyment of fundamental rights by the citizens.

First, under Section 126(1), the petitions against violations of fundamental rights can only be filed with the Supreme Court, which is based in Colombo. This restricts access to justice for the poor, as many simply cannot afford to hire a Supreme Court lawyer...

Second, under section 126(2), there is a one-month time bar to file petitions. The Sri Lankan government in its fourth periodic report states that “courts in interpreting the above provision have taken a liberal view...

The interpretation of the time bar depends on the predilection of an individual judge or bench. With the Supreme Court being based in Colombo, it may not be possible for the victims to approach the court within one month given the illegal methods used by the security personnel to hush up the violations of fundamental rights. Since most Tamils living in the Liberation Tigers of Tamil Eelam-held areas and high-security zones did not enjoy the right to freedom of movement and were required to take “passes”, they could not effectively approach the Supreme Court within one month against violations of their fundamental rights.

Third, under section 126(1), a direct human rights complaint may be made to the Supreme Court only by the victim or by an attorney-at-law on his/her behalf. This excludes the possibility to pursue justice for violations of fundamental rights on behalf of the dead and the missing.

Therefore, it is clear that while the Sri Lankan constitution guarantees fundamental rights and freedom under chapter III (Article 8-31), in one stroke it creates procedural obstacles and limitations under article 126 to effectively restrict access to justice for violations of the fundamental rights. The parliament has established a Select Committee of Parliament to review the functioning of the Human Rights Commission and the time constraints in respect of the constitutional jurisdiction of the Supreme Court...Its interim report does not provide any substantive information.

Article 4 and article 5; human rights during emergency: While the Sri Lankan government in its fourth periodic report states that emergency regulations imposed in May 2000 were allowed to lapse in July 2001, it fails to state that President Chandrika Kumaratunga issued regulations under the Prevention of Terrorism Act of 1979 providing that “any person who had been remanded…in terms of any other written law, and has also been connected with or reasonably suspected…with any unlawful activity within the meaning of the PTA, shall be deemed to have been remanded under the PTA”.

In effect, all those who were detained under the Emergency Regulations were brought under the PTA and continue to be detained. The majority of the detainees are ethnic Tamils.

The Public Security Ordinance was passed in 1947 just prior to independence to provide for “measures in the interests of public security and preservation of public order.” Article 155 of the constitution of Sri Lanka sanctified the ordinance by making it a part of the law.

Part I of the PSO empowers the president to declare a state of emergency, thereby making part II of the ordinance effective... Rule 1(2A)(b) gives supreme authority to the president to issue any emergency regulation under part II. Therefore, the president is empowered to bypass the normal legislative process to restrict basic rights granted under the constitution...