EDWARD FRANCIS WILLIAM SILVA, PRESIDENTS COUNCEL AND THREE OTHERS v. SHRIR

015-SLLR-SLLR-1997-V-1-EDWARD-FRANCIS-WILLIAM-SILVA-PRESIDENTS-COUNCEL-AND-THREE-OTHERS-v.-SHRIR.pdf


EDWARD FRANCIS WILLIAM SILVA,
PRESIDENT'S COUNSEL AND THREE OTHERS
v.
SHIRANI BANDARANAYAKE AND THREE OTHERS
SUPREME COURT.
FERNANDO, J.
AMERASINGHE. J.
RAMANATHAN, J.
WADUGODAPITIYA, J.
PERERA, J.
WUETUNGA, J. ANDANANDACOOMARASWAMY, J.
S. C. (F. R.) APPLICATIONS
NOS. 832, 833. 834 AND 842 OF 1996
DECEMBER 4, 6 AND 9. 1996
Fundamental rights – Appointment of a Judge of the Supreme Court, Article 107of the Constitution – Nature and extent of the power of the President – Necessityfor co-operation between the Executive and the Judiciary – Articles 12(1), 14(1)(a) and 14(1) (g) of the Constitution.
Held:
The President in exercising the power conferred by Article 107 of theConstitution has a sole discretion. The power is discretionary and notabsolute. It is neither untrammelled nor unrestrained, and ought to beexercised within limits.
Article 107 does not expressly specify any qualifications or restrictions.However, in exercising the power to make appointments to the SupremeCourt there should be co-operation between the Executive and the Judiciary,in order to fulfil the object of Article 107.
Cases referred to:
Premachandra v. Jayawickreme S C. (1994) 2 Sri L.R. 90,105.
Premachandra v. Jayawickreme C.A, (1993) 2 Sri L.R. 294.
Bandara v. Premachandra, S.C. (1994) 1 Sri L.R. 301,312.
Mallikarachchi v, Attorney Generali 1985) 1 SLR 74.
APPLICATIONS for relief for infringement of fundamental rights,
ft. K. W. Goonesekera with Gamini Jayasinghe, Rohan Sahabandu, Ari Perera,
K.S. Ratnavel, Geoffrey Alagaralnam, J. C. Weliamune, Manohara de Silva andChampaka Laduwahetiyfor the petitioner in application No. 832/96.
M. S. Aziz, PC. with Ajantha Cooray, Lakshman Perera, Kalinga Indatissa,Hemasiri Withanachchi, Ulanthi de Silva and A.R. Benedict for the petitioner inapplication No. 833/96.
D. S. Wijesinghe, P.C. with Hemantha Warnakutasurlya, Upul Jayasuriya,Dhammika Dharmadasa, Shiranthi Jayatilleke, Methsiri Paranavithana, NissankaNanayakkara and Inoka Senadheera for the petitioner in Application No. 834/96.
C. Seneviratne, PC. with Nehru Gunatilleke, P.C., Desmond Fernando. P.C.,
M.D. K. Kulatunga, Ronald Perera and Gamini Silva for the petitioner inapplication No. 842/96.
N. Silva PC., A. G. with K. C. Kamalasabayson, PC. Addl. S.G., AnushaNavaratne, S.S.C., U. Egalahewa, S.C. and N. Pulle, S.C. for the respondents ineach application.
Cur. adv. vult.
December 16,1996FERNANDO, J.
This Judgment sets out the views of Amerasinghe, J.Wadugodapitiya, J. Wijetunga, J. and myself.
These four identical applications were referred by the Chief Justiceunder Article 132(3) to this bench of seven Judges because theyinvolved questions of general and public importance. In each casethe petitioner is an Attorney-at-Law, who claims that his fundamentalrights under Articles 12(1), 14(1) (a) and 14(1) (g) have beeninfringed by reason of the appointment of the 1st respondent by thePresident as a Judge of this Court.
Having regard to the complexity and the gravity of the questionsinvolved, instead of permitting the applications to be supportedex parte in the usual course, the Respondents were ail given notice.
and represented, and heard in opposition to the grant of leave toproceed.
The principal question concerns the interpretation of Article 107 ofthe Constitution: whether that Article confers on the President apower, without any need for consultation or any other form ofco-operation,
Article 4 of the Constitution shows that the Sovereignty of the Peopleis exercised by Parliament, by the President, and through the Judiciary.Comity among these three organs of government is an essential,underlying assumption. The Constitution contemplates that the threeorgans of government, in the exercise of the legislative, executive andjudicial powers of the People, on behalf of the People, would co-operate with each other in order to realise the aims of the Constitution.
Admittedly, Article 107 confers on the President the power ofmaking appointments to the Supreme Court, and does not expresslyspecify any qualifications or restrictions. However, considerations ofcomity require that, in the exercise of that power, there should be co-operation between the Executive and the Judiciary, in order to fulfilthe object of Article 107.
Apart from considerations of comity, those appointments are ofsuch a nature that co-operation between the Executive and theJudiciary is vital. The President, naturally, would be anxious toappoint the most suitable person available. But it is not easy, exceptin broadly stated terms, to spell out the qualifications needed for highjudicial office, nor is it easy to determine with any degree of certaintywhether a person has all those qualifications. The Chief Justice, asthe head of the Judiciary, would undoubtedly be most knowledgeableabout some aspects, while the President would be best informedabout other aspects. Thus co-operation between them would,unquestionably, ensure the best result. Of course, the manner, thenature and the extent of the co-operation needed are left to thePresident and the Chief Justice, and this may vary depending on thecircumstances, including the post in question, Constitutional law andpractice are not static. Whatever the position earlier, prima facie by1994 there had developed a practice, in proof of whichMr Goonesekera relied on the explanation given by S. N. Silva, P/CA,as he then was. to the question “what is the process by whichjudges of the higher courts are selected?”.
“Under the Constitution the President of the Republic has the soleprerogative to appoint Judges of the High Court, the Court ofAppeal and the Supreme Court. In practice Judges are selectedthrough a process of nomination by the Chief Justice, theAttorney-General and the Minister of Justice.” (emphasis added)DANA, Vol XIX, Nos. 1-4, Jan-April 1994.
The learned Attorney-General submitted that the President inexercising the power conferred by Article 107 had a "sole discretion".
I agree with this view. This means that the eventual act ofappointment is performed by the President and concludes theprocess of selection. It also means that the power is neitheruntrammelled nor unrestrained, and ought to be exercised withinlimits, for, as the learned Attorney-General said, the power isdiscretionary and not absolute. This is obvious. If, for instance, thePresident were to appoint a person who, it is later found, had passedthe age of retirement laid down in Article 107(5), undoubtedly theappointment would be flawed: because it is the will of the People,which that provision manifests, that such a person cannot hold thatoffice. Article 125 would then require this Court, in appropriateproceedings, to exercise its judicial power in order to determinethose questions of age and ineligibility. Other instances which readilycome to mind are the appointment of a non-citizen, a minor, abankrupt, a person of unsound mind, a person who is not anAttorney-at-Law or who has been disbarred, or a person convicted ofan offence involving moral turpitude.
In common with Courts in other democracies founded on the Ruleof Law, this Court has consistently recognised that powers ofappointment are not absolute:
“There are no absolute or unfettered discretions in public law;discretions are conferred on public functionaries in trust for thepublic, to be used for the public good, and the propriety of theexercise of such discretions is to be judged by reference to thepurposes for which they were so entrusted." Premachandra v.Jayawickreme.w That principle was then applied by the Court ofAppeal to strike down the appointments of two Chief Ministers bythe respective Provincial Governors: Premachandra v.Jayawickremel?). See also Bandara v Premachandra.®
The question then is whether the petitioners have established,prima facie, that there was no co-operation between the Presidentand the Chief Justice. The petitioners case is that the Chief Justicedid make recommendations that two others be appointed to fill thetwo vacancies that existed during the relevant period. Theirgrievance is that the Chief Justice’s recommendations were notaccepted; that the Chief Justice did not recommend the 1strespondent; and that because he was informed only after the 1strespondent’s appointment had been made, he had no opportunity toexpress his views. They make no complaint of any failure tocommunicate with any one else. While all four petitioners make theseallegations, they neither claim personal knowledge of the facts norstate the sources or grounds of their belief. They did not, in theirpetitions or in their submissions, indicate any possible source or anymeans of establishing these matters; nor did they ask {as is oftendone) for an adjournment to amend or supplement their pleadingsbefore proceeding further with their applications for leave to proceed;and they did not seek an order from this Court to secure theproduction of any relevant material, Learned Counsel for thepetitioners did suggest in the course of their submissions that therewas some obligation on the Attorney-General to produce thenecessary material. However, the Attorney-General stated (both in hisoral and in his written submissions) that he was not in a position toproduce any material relating to the 1st respondent's appointmentbecause, he said, that would be with the President and/or the ChiefJustice, and he had no access to that material – which, he alsoclaimed, was confidential.
It must be noted that the Chief Justice declined to hear these fourapplications partly “in view of some of the averments in thepetitions)". Presumably, those were the averments relating tocommunications by him. Nevertheless the Petitioners did not evenask that a request be made to the Chief Justice to furnish anyrelevant correspondence.
In these circumstances, where the petitioners have not only failedto establish, prima fade, the absence of the necessary co-operation,but have also failed to indicate how they propose to supply thatdeficiency, it would be futile to grant leave to proceed in respect ofthe alleged infringement of their fundamental rights under Article14(1) (g), which they say resulted from that alleged want ofco-operation. The presumption that official acts were regularlyperformed, particularly at the level of the head of the Executive andthe head of the Judiciary, cannot lightly be disregarded.
The Petitioners do not claim to have been contenders for the officeto which the 1st respondent was appointed. They are not entitled inthese applications under Article 126 to raise issues of allegedunequal treatment of third parties. Thus the petitions do not discloseany relevant allegation of the infringement of Article 12(1). They havealso failed to make out any case that their fundamental rights underArticle 14(1) (a) were infringed.
Finally, the petitioners contend that the 1st respondent wasdisqualified for appointment by reason of (a) her views and conductin relation to the Government's devolution proposals, and her linksand association with the 2nd respondent, and (b) the supportextended to her appointment, after it was made, by a group oflawyers with political affiliations. Her views and conduct, even if theyrelated to political issues, were neither illegal nor improper, and didnot constitute a disqualification for office, although, as the learnedAttorney-General pointed out, they may disqualify her from hearingparticular cases. As for the second allegation, not only is there nosuggestion that she was in any way involved with a particular groupof lawyers, but it relates to a matter subsequent to her appointment,and so cannot retroactively invalidate it.
For the above reasons, leave to proceed is refused, without costs.I would like to express our appreciation of the assistance rendered byall Counsel.
AMERASINGHE, J. -1 agree.
WADUGODAPITIYA, J. -1 agree.
WIJETUNGA, J.-1 agree.
PERERA, J.
The present application was taken up for hearing together withApplications Nos. 833/96, 834/96 and 842/96 as the subject-matter,the averments and the reliefs claimed, are identical.
The petitioners in this case have sought leave to proceed againstthe 1st, 2nd and 3rd Respondents whom they state have acted inviolation of their fundamental rights guaranteed by Articles 12(1),14(1) (a) and 14(1) (g) of the Constitution.
We have had the advantage of comprehensive argument byCounsel on this matter and we have given careful consideration tothe submissions made by learned Counsel on behalf of thepetitioners and the learned Attorney-General. We thereafter reservedour Order on the question whether leave to proceed be granted orrefused in this matter.
The petitioners in their applications are seeking, inter alia, adeclaration that their fundamental rights guaranteed by Articles12(1), 14(1) (a) and 14 (1) (g) have been infringed and/or that there isan imminent infringement of same in the event the 1st respondent ispermitted to discharge the functions of a Judge of this Court. Theyhave also sought a declaration that the appointment of the 1strespondent as a Judge of the Supreme Court is contrary to lawand/or the Constitution.
In the present proceedings, therefore, the petitioners arechallenging the appointment of the 1st respondent as a Judge of theSupreme Court by Her Excellency the President – the basis of theappointment which clearly under the provisions of the Constitution, isa matter which falls within the purview of the President.
Article 35(1) provides that while any person holds office asPresident, no proceedings shall be instituted or continued againsthim in any Court or Tribunal in respect of anything done or omitted tobe done by him either in his official capacity, or private capacity. This,in our view, necessarily contemplates all acts and omissions of thePresident, and provides a blanket immunity to him from havingproceedings instituted or continued against him in any Court inrespect of any act or omission on his part. In other words, it confersan absolute immunity and protects the President form legalproceedings. In fact, it protects the act or omission of the Presidentwhich is inbuilt into the said Article, thereby conferring immunity onthe President, who so acts or omits to act.
On the other hand, Article 35(3) whilst excluding certaincategories of powers exercised by the President from the immunityconferred under Article 35(1), contains a proviso which enables aparty to institute proceedings against the Attorney-General. Thisproviso is restricted to the exercise of power pertaining to the subjector function contemplated in Article 35(3). In our view, therefore, byvirtue of Article 35(1) read with Article 35(3), all acts and omissions ofthe President are protected, except those specified in Article 35(3).
sc
In the case of Mallikarachchi v. Attorney-Generalw, it has beenheld by a Divisional bench of this Court that the Attorney-General isnot competent to represent the President in proceedings not coveredby the proviso to Article 35(3). At page 78 of this Judgement, it washeld as follows:-
“It is very necessary that when the Executive Head of State isvested with paramount powers and duties, he should be givenimmunity in the discharge of his functions."
We are of the view, therefore, that having regard to Article 35 of theConstitution, an act or omission of the President is not justiciable in aCourt of law, more-so where the said act or omission is beingquestioned in proceedings where the President is not a party and inlaw could not have been made a party. There is no doubt that theaverments in the petitions flow from the act of appointment made bythe President. It is only the President who could furnish detailsrelating to the said appointment. Where the Constitution specificallyprohibits the institution of proceedings against the President, achallenge to the appointment cannot be isolated from the President inproceedings against the 1st respondent (the person appointed)where the basis of the appointment which is a matter which in termsof the Constitution falls within the purview of the President. Suchmatter cannot be canvassed in any Court. Accordingly, we are of theview that this application cannot be entertained by this Court andmust be dismissed in limine.
We propose now to examine the proposition whether thepetitioners in these cases have placed before this Court sufficientmaterial to establish a prime facie case of violation of theirfundamental rights guaranteed under Articles 12(1), 14(1) (a) and14(1) (g) which are the main reliefs prayed for by the petitioners. Atthe outset, we must state that in our view the petitioners cannot seekto question the validity of the appointment of the 1st respondent as aJudge of the Supreme Court by alleging such infringement orimminent infringement.
ARTICLE 12(1)1
The violation of Article 12(1) involves two or more persons who aresimilarly placed or circumstanced. The grievance of the petitioner in
relation to the respondent must be directly related to the impugnedact. A petitioner will not have locus standi if he is not one who couldhave claimed a right in relation to this particular respondent. In thiscase, the petitioners do not allege discrimination in relation to the1st respondent and therefore he is not entitled to any relief underArticle 12(1).
ARTICLE 14(1) (a):
We are also of the view that the Freedom of Speech andExpression as set out in Article 14 (1) (a) has no application for thereason that the petitioner has not been deprived of this freedom at all.Further, it cannot have a bearing in relation to the appointment of the1st respondent in an application under Article 126.
ARTICLE 14(1) (g):
The appointment of the 1st respondent in our view cannot infringethe freedom of the petitioner to practice his profession. This provisionbecomes operative only on the petitioner engaging himself in thepractice of his profession and not at this stage. No person hasprevented the petitioner from exercising that right. The petitionercannot anticipate partiality or bias purely upon the appointment of the1st respondent. Thus the petitioner is not entitled to any relief underArticle 14(1) (g).
Counsel on behalf of the petitioner submitted that the appointmentof the 1st respondent by her Excellency the President has been donecontrary to convention/practice of appointing Judges to the SupremeCourt upon recommendation and consultation with his Lordship theChief Justice. It would therefore become necessary to examine therelevant provisions of the Constitution relating to the appointment ofJudges to the Supreme Court, namely, Article 107.
On a plain reading of this Article, it is clear that Article 107 (1)does not provide for a consultation or recommendation in relation tothe appointment of Judges referred to in that Article. In thisconnection, it is indeed significant that the Constitution containsspecific provisions in Articles 44, 45 and 46 where the President isrequired to act on consultation. Thus in certain situations,consultation has been specifically contemplated in the Constitution.In the absence of such qualification, Article 107 (1) must necessarilybe given its plain and literal meaning where the manner of appointinga Judge is left to the sole discretion of the President. In thisconnection, it is in our view apposite to cite an extract from anaddress made by Dr. A. R. B Amarasinghe J. on "JUDICIAL ETHICS"to District Judges and Magistrates referring to the appointment ofJudges to the Supreme Court. Court of Appeal and the High Court.(Published in the Judges Journal of 1991) as follows:
“Moreover, such statements overlook the fact that suchappointments are at the sole discretion of His Excellency thePresident who must surely be presumed to know what ought to bedone."
Further, Article 107 (1) does not contain any objective guidelinesor criteria as in the case of the Indian and Pakistan Constitutions. Inthe circumstances, it would not be permissible in our view to readinto this Article any guidelines or criteria, as it could then have theeffect of limiting or restricting the ambit of this Article and the powersof the President. It is also significant that in Chapter XV, andparticularly, under the heading "Independence of the Judiciary," inArticle 111, the president is conferred with the power of removal, etc.,of a High Court Judge on the recommendation of the Judicial ServiceCommission. Thus the Constitution has specifically contemplatedsituations where recommendation is specified as a requirement. Inthe absence of such requirement, in our view, Article 107 (1) mustnecessarily be regarded as self-contained.
It is also noteworthy that the petitioner has failed to place anyevidence of convention applicable to the appointment under Article107 (1). An examination of the Republican Constitution of 1978 wouldreveal the conventions that were previously recognized. The variousprovisions in Chapter III of the Constitution have incorporated suchconventions. These relate to the collective responsibility and theanswerability of the Cabinet of Ministers and the appointments ofMinisters. This is a departure from Section 4 (2) of the SoulburyConstitution which provided for the applicability of conventions incertain circumstances.
The learned Attorney-General rightly submitted in the course of hissubmissions that since all Judges of the Supreme Court ceased tohold office on the commencement of the present Constitution, byvirtue of Article 163, the appointments made thereafter in terms ofArticle 107 (1) could not have been based on any convention relatingto consultation or recommendation of the Chief Justice. We areentirely in agreement with this submission. In point of fact, thepetitioners have failed to adduce any evidence supportive of theexistence of any such convention. I must also observe in thisconnection that no material has been placed before this Court toshow whether there has been any consultation with the Hon. ChiefJustice or not in regard to this particular appointment.
The petitioners have in their petitions and affidavits stated that theybelieve that the 1st respondent's appointment was contrived by the2nd and 3rd respondents, and more particularly by the 2ndrespondent, who usurped the rightful authority of the Chief Justice tohave a voice in this matter. We wish to observe that apart from the mereipse dixit of the petitioners in regard to this allegation, no cogentmaterial has been placed before this Court in support of this statement.
In view of the material set out above, we refuse the petitionersapplications for leave to proceed in respect of all four applications.The applications are accordingly dismissed without costs.
RAMANATHAN, J. -1 agree.
ANANDACOOMARASWAMY, J. -1 agree.
Leave to proceed refused.