Freedom of Association under 1978 Constitution

In Sri Lanka, Article 157A of the Constitution prohibits any political party or other association or organization from having as one of its aims or objects the establishment of a separate State within the territory of Sri Lanka. Where the Supreme Court, upon an application made to it, declares that a party, association or organisation has such an aim or object, such a party, association or organisation is deemed to be proscribed.

Regulation 68 of the emergency regulations empowers the President to proscribe an organisation if he is of the opinion there is a danger of action by, or of the utilization, of, such organisation or its members or adherents for purposes prejudicial to national security, the maintenance of public order or maintenance of essential services or for the purposes of committing offences mentioned in the Regulation.

It was under this Regulation that the Communist Party, the Nava Sama Samaja party and Janatha Vimuthy Peramuna were proscribed in 1983. The Supreme Court in Satyapala v Attorney-General and Mallikarachchi v Shiva Pasupathi held that an order of proscription made under the said Regulation cannot be challenged as a violation of a fundamental right because of the immunity of the President from suit granted by Article 35(1) of the Constitution.

Whether the right to strike is included in the right to form and join a trade union was raised in Yasapala v Wickremasinghe.

The petitioner referred to section 2 of the Trade Unions Ordinance where a trade union is defined as an association of workmen or employees having among its objectives the following objects:

The promotion or organisation of financing of strikes or lockouts in any trade or industry or the provision of pay or other benefits for its members during a strike or lock-out.

Workers’ demands

It was contented that since the promotion of strikes was one of the legitimate objects of a trade union, it followed that under Article 14(1) (d) there is a fundamental right for a workman to resort to a strike; the freedom to form a trade union extended to confer upon trade unions a right to effectively function as an instrument for agitating and negotiating and for collective bargaining to secure the demands of workers; otherwise the freedom to form a trade union would be illusory.

Sharvanada J. agreeing with the judgment of the Indian Supreme Court in All India Bank Employees Association v The National Industrial Tribunal, held that the right to strike did not amount to a fundamental right.

The learned Judge stated that to hold that the right to strike is a fundamental right was to hold also that the right to lock-out is a fundamental right. He stated:

If the fulfillment of every object for which a Union of workers was formed were held to be a guaranteed right, it would logically follow that a similar content ought to be given to the same freedom when applied to a Union of Employers and thus [the] right to lock-out also will have to be upheld as a fundamental right. This construction will result in an absurdity.

In its decision on the constitutionality of the Essential Public Services Bill, a five member Bench of the Supreme Court stated:

“The right to strike is essentially a political and economic concept, but has been conceded in some countries as a legal right.

At the most it may be claimed as a mere common law right without being raised to the level of a fundamental right”.

A Fundamental Rights case decided by the Supreme Court in 1999 concerning a violation of 14(1) (b) and (c) together with 14(1)(a) was Mihundukulasuriya Vincent Peiris v. Neil Rupasinghe.

The petitioner in this case was the chairman of an NGO known as Janodhaaya Sajeewana Kendraya. The petitioner had been invited by the Central Environmental Authority to attend a workshop on January 5,1999.

When he arrived the premises he was prevented from participating, and was assaulted by the respondents. The petitioner alleged that the respondents had violated his freedom of expression, assembly and association guaranteed by the Constitution.

The Supreme Court acknowledged the petition mentioning that the outcome of the incident was that the petitioner had not been able to participate at the workshop and had been prevented from exercising his fundamental rights of freedom of expression, assembly and association guaranteed under the Constitution.

Interpreting the scope of freedom of association, Justice M.D.H. Fernando on behalf of the Supreme Court in the case of Bandara v. Premachandra stated that;

“Article 14(1) ( c) (freedom of association) is of general application to all forms of associations, including trade unions, and not only to the initial act of forming or joining an association but, also to continuing membership and participation in the lawful activities of the association.”

Similarily Wijetunga J. referring to freedom of association in the case of Ekanayake v. Gunatillake, Superintendent of Police Maho (1993) stated that “a citizens’ right to join any political party of his choice, which is a necessary concomitant of the freedom of association guaranteed to him by Article 14(1) ( c), would be meaningless unless he has the freedom to participate fully in the lawful activities of such political party and when such lawful activities are unlawfully obstructed or prevented, there is a violation of Article 14(1) ( c).”

In these cases, for instances, the courts of Sri Lanka have given a liberal interpretation to the principles governing freedom of association.

Common purpose or joint action

Associations play a vital role in modern society and are a vital expression of the human personality. Freedom of association indicates a condition in which people are free to join others in an organisation for a common purpose or joint action.

It permits individuals to get together for the purpose of influencing policy. Freedom of association becomes an important political issue when associations play a political role. On the other hand, it should be understood that the only importance of associations is not political.

The fundamental right to freedom of association plays a significant role in Sri Lanka.

There should only be minimal State intervention with respect of this right if it is to be fully realized by the Sri Lankan citizens, and such intervention should not exceed the limits on legitimate restriction to this right that are set out in the ICCPR, to which Sri Lanka is a party. The mere recognition of a trade union will not ensure that collective bargaining will ipso facto take place successfully. 

 


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