Upholding Democracy

Continued from yesterday

When hearings commenced on 04th December 2018, several learned counsel appearing for intervenient Petitioners who had filed applications seeking to be added as Respondent but had not been added as Respondents since their applications were not before the Court on 12th November 2018, sought permission to, nevertheless, make submissions.

In view of the importance of the issue before the Court, these requests were permitted on an exceptional basis, in terms of Article 134 (3) of the Constitution. Accordingly, we heard submissions made by Mr. Gomin Dayasiri, Mr. Samantha Ratwatte PC, Mr. V.K. Choksy, Mr. Chrishmal Warnasuriya, Mr. K. Deekiriwewa, and Mr. Darshan Weerasekera.

All counsel made exhaustive submissions before us, stretching over 4 days. The Petitioners in all 10 applications, the Attorney General and the added Respondents have submitted written submissions on 30th November 2018, and some of them have submitted further written submissions after the cases were taken up for hearing. Mr. Samantha Ratwatte PC, Mr. V.K. Choksy and Mr. Chrishmal Warnasuriya, have also filed written submissions. I have endeavoured to carefully consider both oral and written submissions made by all counsel when examining the issues before us.

Having set out the cases of the parties before us in some detail, I proceed to consider and determine the issues before us in these applications.

Jurisdiction

When, on 12th and 13th November 2018, the Petitioner’s application in the present case [i.e: SC FR 351/2018] and the other eight applications were supported by counsel for the Petitioners and were opposed by the Attorney General and counsel for the five added Respondents in the course of submissions spanning two days, neither the Attorney General nor counsel for the added Respondents disputed the jurisdiction of the Supreme Court to hear and determine any of the issues that arise in these applications challenging the validity of the Proclamation marked -P1.

However, when Mr. Udaya Ranjith Seneviratne, in his capacity as the Secretary to His Excellency, the President filed his affidavit dated 19th November 2018 he has pleaded that this Court has no jurisdiction to hear and determine these applications but did not explain the basis on which he makes that claim.

Further, the 2nd added Respondent has stated that the Petitioner cannot invoke the fundamental rights jurisdiction of the Supreme Court since the Petitioner, as a Member of Parliament, had the specific remedy provided by Article 38 (2) (a) (i) of the Constitution of giving the Hon. Speaker notice of resolution moving for the removal of His Excellency, the President from office under the provisions of Article 38 (2) (a) (i) of the Constitution.

It is to be noted that none of the other added Respondents – i.e: the 1st, 3rd, 4th and 5th Respondents - have, in their affidavits, disputed the jurisdiction of the Supreme Court to hear and determine these applications. In fact, in their affidavits the 1st and 5th Respondents expressly state that the power vested in the President by Article 33 (2) (c) of the Constitution is “subject to Article 35” of the Constitution while the 3rd and 4th added Respondents expressly state that the power vested in the President by Article 33 (2) (c) of the Constitution is “subject to Article 35 Proviso I” of the Constitution.

Further, in their written submissions tendered on 30th November 2018 before the hearing was taken up on 04th December 2018 — Mr. Sanjeeva Jayawardena, PC on behalf of the 1st added Respondent, Mr. Manohara De Silva, PC on behalf of the 2nd added Respondent, Mr. Ali Sabry, PC on behalf of the 3rd added Respondent, Mr. Gamini Marapana, PC on behalf of the 4th added Respondent and Mr. Canishka Witharana on behalf of the 5th added Respondent do notdispute the jurisdiction of the Supreme Court to hear and determine these applications.

However, the written submissions tendered on behalf of the Attorney General urge that the Supreme Court is precluded from exercising its fundamental rights jurisdiction in respect of these applications. That contention is made on the following two fold basis:

(a) A submission that the Petitioners in all nine applications rely on their claim that His Excellency, the President intentionally and/or wilfully and/or unlawfully violated the Constitution and/or committed an abuse of the powers of his office and that, therefore, the only remedy available to the Petitioners is under the specific mechanism provided by Article 38 (2) of the Constitution;

(b) A submission that the dissolution of Parliament does not constitute “executive or administrative action” falling within the purview of Article 126 of the Constitution.

At the hearing which commenced on 04th December 2018, the Hon. Attorney General made exhaustive submissions in support of these two preliminary objections. Learned Counsel for the five added Respondents stated that they associate themselves with the aforesaid two preliminary objections raised by the Attorney General but did not press these issues.

The submission set out in (a) above will be considered first.

In this regard, the Hon. Attorney General submits that since, as specified by Article 118 (b) of the Constitution, the Supreme Court can exercise its jurisdiction for the protection of fundamental rights under and in terms of Article 126 of the Constitution only subject to the provisions of the Constitution, the Supreme Court is precluded or fettered from exercising that fundamental rights jurisdiction in the present applications because Article 38 (2) of the Constitution provides a “specific mechanism” or “a specific procedure or mechanism” setting out the manner in which the Supreme Court can exercise jurisdiction with regard to the Petitioners‘ complaints of alleged intentional violation of the Constitution and/or alleged abuse of the powers of his office by His Excellency, the President. It is submitted that, therefore, the Petitioners’ complaints are “not justiciable” under Article 126.

Article 38 (2) of the Constitution deals with the procedure to be followed where any Member of Parliament wishes to move for the removal of the President then in office or—as is more usually said in common parlance—wishes to move for the impeachment of the President then in office.

This submission fails on several counts.

Firstly, the submission is logically flawed in the case of these particular applications. To put in another way, the submission is a glaring non sequitur in the specific circumstances of these applications. The simple reason for that observation is that these applications challenge a dissolution of Parliament and a Member of a Parliament which is dissolved by the President without notice and literally overnight, cannot have recourse to Article 38 (2) because, at the time the applications are filed, no Parliament would exist in which a motion for impeachment can be brought.

Secondly, Article 38 (2) of the Constitution need even be considered only where proceedings for the impeachment of His Excellency, the President have commenced and the Hon. Speaker has referred a resolution to the Supreme Court for inquiry and report or, at the least, when such proceedings are impending. However, no such circumstances have arisen. In fact, there is absolutely no suggestion before us that the Petitioner [or any of the Petitioners in the other applications] has any intention of giving notice of a resolution under Article 38 (2) for the impeachment of His Excellency, the President. The complaint in these applications that the impugned act of His Excellency, the President has allegedly violated the Constitution and/or abused the powers of his office and, thereby, violated the fundamental rights of the Petitioners does not mean that the Petitioner [or any of the other Petitioners] intends to take the extreme step of attempting to impeach His Excellency, the President. Thus, the submission made on behalf of the Hon. Attorney General is founded on hypothesis and is without factual basis or merit.

Thirdly, the inalienable right of every citizen of our country to invoke the fundamental rights jurisdiction of the Supreme Court is a cornerstone of the sovereignty of the people which is the Grundnorm of our Constitution. Thus, Article 4 (d) declares “the fundamental rights which are by the Constitution declared and recognized shall be respected, secured and advanced by all the organs of government and shall not be abridged, restricted or denied, save in the manner and extent hereinafter provided.”.

It has been emphasised time and again by this Court that it is a foremost duty of the Supreme Court to protect, give full meaning to and enforce the fundamental rights which are listed in Chapter III of the Constitution. Thus, Sharvananda CJ observed in MUTUWEERAN vs. THE STATE [5 Sri Skantha’s Law Reports 126 at p. 130]; “Because the remedy under Article 126 is thus guaranteed by the Constitution, a duty is imposed upon the Supreme Court to protect fundamental rights and ensure their vindication.”.

In honouring this duty, the Supreme Court is giving tangible and effective life and meaning to the sovereignty of the people. The single and only instance specified in the Constitution where the exercise of these fundamental rights may be restricted is in circumstances falling within the ambit of Article 15 of the Constitution. The present applications do not fall with the ambit of Article 15 in the absence of any laws which have been passed prescribing restricting the operation of Article 12 (1) in the interests of national security, public order or any other of the specific grounds referred to in Article 15 (7) of the Constitution. Further, it hardly needs to be said that, the mere fact the procedure described in Article 38 (2) of the Constitution provides for the Supreme Court to inquire into a resolution and report to Parliament, cannot deprive this Court of its jurisdiction under Article 118 (b) read with Article 126 for the protection of fundamental rights. In the absence of a specific and express provision in the Constitution which strips the Supreme Court of jurisdiction under Article 118 (b) read with Article 126 and Article 17 for the protection of fundamental rights, the provisions of Article 118 (b) read with Article 126 and Article 17 will prevail. Therefore, this Court has the jurisdiction and, in fact, a solemn duty to hear and determine these applications according to the law.

Fourthly, the procedure specified in Article 38 (2) refers solely to the exercise of the power of the Legislature. It has to be understood that the role of the Supreme Court under Article 38 (2) is limited to inquiring into the allegation or allegations contained in a resolution which has been referred to the Court by the Hon. Speaker and making a report thereon to Parliament. The Supreme Court is, essentially, performing a fact-finding function upon the direction of Parliament. It is Parliament which determines what is to be done with the report submitted by the Supreme Court to Parliament. Thus, the limited fact-finding role of the Supreme Court under Article 38 (2) cannot be equated with the exercise of judicial power by the Supreme Court in the protection of fundamental rights.

Fifthly, it is patently clear that these applications are solely by way of personal applications which are restricted to an invocation of the jurisdiction of this Court for the protection of the Petitioners’ fundamental rights. This is also manifested by the reliefs prayed for by the Petitioners which are limited to declarations that the Proclamation marked ?P1 violate their fundamental rights under Article 12 (1) and/or Article 14 (1) (a) of the Constitution and Orders quashing ?P1 and related interim reliefs. The Petitioners do not pray for a declaration that His Excellency, the President has intentionally violated the Constitution or committed an abuse of the powers of his office. Thus, the Petitioners’ applications before us cannot be logically connected with the entirely different nature of proceedings under and in terms of Article 38 (2) which set in motion the power of the legislature to impeach a President who is then in office and, in the exercise of that power of the Legislature, provide for the Legislature to request the Supreme Court to inquire into and report on the allegation or allegations contained in a resolution.

The mere existence of the procedure described in Article 38 (2) cannot deprive those Petitioners who are Members of Parliament of the inalienable right of every citizen of our country to invoke the fundamental rights jurisdiction of the Supreme Court. To emphasise the point, the fundamental rights jurisdiction of the Supreme Court can be immediately invoked by any Member of Parliament in his capacity as a citizen of Sri Lanka and he can obtain a determination by this Court. His right to do so is not dependent on cobbling together the required majority of Members of Parliament. Thus, there is no valid comparison between the procedure specified in Article 38 (2) of the Constitution for the impeachment of a President then in office and the inalienable right of a Member of Parliament, as a citizen of Sri Lanka, to invoke the jurisdiction of this Court for the protection of fundamental rights.

Petitioners in SC FR 353/2018, SC FR 354/2018, SC FR 355/2018 and SC FR 361/2018 who were and/or are not Members of the Eighth Parliament and, therefore, have no opportunity of bringing a motion for the impeachment of the President. The contention that these Petitioners must be deemed to have an opportunity to bring a motion for the impeachment of the President through their elected Members of Parliament is divorced from reality and is without merit.

For the aforesaid reasons, the submission made by the Hon. Attorney General and set out in (a) above – i.e: that the only remedy available to the Petitioner is under the mechanism provided by Article 38 (2) of the Constitution—is rejected.

Executive and administrative action of President

It has been submitted on behalf of the Attorney General that the dissolution of Parliament by the President does not constitute “executive or administrative action” falling within the purview of Article 126 of the Constitution and, therefore, is covered by the immunity granted by Article 35 (1) of the Constitution.

Article 35 (1) of the 1978 Constitution stipulated that during the period when a President holds office, no proceedings can be instituted or continued against him in any court or tribunal in respect of anything done or omitted to be done by him in his official or private capacity. Thus, prior to the 19th Amendment, Article 35 (1) conferred a blanket immunity upon a President [so long as he holds office] from being sued in respect of any act or omission done by him in his official capacity qua President or in his private capacity.

However, as is well known, the proviso to Article 35 (1) introduced by the 19th Amendment to the Constitution introduced a very significant change. It states “Provided that nothing in this paragraph shall be read and construed as restricting the right of any person to make an application under Article 126 against the Attorney-General, in respect of anything done or omitted to be done by the President, in his official capacity.”.

Thus, the proviso to Article 35 (1) entitles any person who complains that an act or omission by the President in his official capacity has violated a fundamental right of that person to institute a fundamental rights application under and in terms of Article 126 of the Constitution against the Hon. Attorney General and seek a determination by the Supreme Court with regard to his complaint. In other words, the proviso to Article 35 (1) makes acts or omissions by the President in his official capacity justiciable within the limited sphere of an invocation of the jurisdiction for the protection of fundamental rights conferred on the Supreme Court by Article 118 (b) read with Article 126 of the Constitution and subject to the stipulation that the Hon. Attorney General [and not the President] is to be made the Respondent to the fundamental rights application filed by that person. It hardly needs to be said that the Hon. Attorney General is to be named as the Respondent in the place of the President and as his representative.

Since the proviso to Article 35 (1) grants the right to challenge acts or omission by the President “in his official capacity” only by way of the specific procedure of making a fundamental rights application under Article 126 of the Constitution, it follows that “executive or administrative action” by the President “in his official capacity” may be challenged in terms of the proviso to Article 35 (1). That is because Article 126 (1) stipulates “The Supreme Court shall have sole and exclusive jurisdiction to hear and determine any question relating to the infringement or imminent infringement by executive or administrative action of any fundamental right or language right declared and recognised by Chapter III or Chapter IV.”

The Court must now examine the merits of that submission.

In this regard, the Hon. Attorney General submits that Article 30 (1) of the Constitution describes the President as being the Head of State, the Head of the Executive and of the Government and the Commander-in-Chief of the Armed Forces. He goes on to seek to draw a distinction between acts done by the President as the Head of State and as the Commander-in-Chief of the Armed Forces on the one hand and acts done by the President as the Head of the Executive and of the Government on the other hand.

The Court cannot accept the submission made on behalf of the Hon. Attorney General that there are some powers which are vested in the President which are not limited by the provisions of the Constitution and which are, therefore, not subject to review in appropriate circumstances.

Next it is necessary to examine whether the act of dissolution of Parliament by the President amounts to - executive or administrative action within the meaning of Article 126 of the Constitution.

The Constitution does not define or describe what is meant by the term “executive or administrative action”. It appears to assume that the words are adequately descriptive and speak for themselves. As far as I am aware, this Court has, advisedly, not ventured an attempt at defining the term. Instead, the question of whether an act or omission can be regarded as constituting “executive or administrative action” must be decided on the nature of the powers that are exercised, the nature of the act and the facts of each case.

To determine whether the act of dissolving Parliament falls within the ambit of executive or administrative action it is necessary to examine whether the power and nature of the act were executive or administrative. In this regard, it is to be noted that CHAPTER VII of the Constitution which is titled “THE EXECUTIVE - The President of the Republic” is where the office of President is described, the manner of election and term of office of the President is specified, the duties and powers of the President are listed, the accountability of the President to Parliament is stipulated, the immunity of the President from suit is formulated and several other provisions relevant to the office of President are set out. This shows that the office of the President and the powers he holds are of an executive character. That conclusion is solidified by Article 4 (b) of the Constitution which specifies that the President exercises the executive power of the people. This fact has been recognised in several decisions of this Court.

Therefore, it would appear that the exercise of the power of dissolution of Parliament which is listed as one of the powers of the President in Article 33 which is within CHAPTER VII titled “THE EXECUTIVE The President of the Republic”, is one manner in which the President exercises executive power. That, in turn, would suggest that the dissolution of Parliament by the President is an executive act which falls within the definition of “executive or administrative action”.

To be continued