JANATHA FINANCE AND INVESTMENTS LTD. V. LIYANAGE AND OTHERS

012-SLLR-SLLR-1983-2-JANATHA-FINANCE-AND-INVESTMENTS-LTD.-V.-LIYANAGE-AND-OTHERS.pdf


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Janatha Finance and Investments Ltd v. Liyanage
and Others
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JANATHA FINANCE AND INVESTMENTS LTD.
V.
LIYANAGE AND OTHERS
SUPREME COURT
SHARVANANDA. J.. VICTOR PERERA. J.. AND RANASINGHE. J.
S.C. APPLICATION NO. 127 OF 1982JANUARY 24. 25. 27 and 31. 1983.
Fundamental Rights — Public Security Ordinance s. 5 — Regulation 14 (7) ofthe Emergency (Miscellaneous Provisions and Powers) Regulation No. 3 of 82—Sealing of Printing Press — Constitution — Article 12 (1) Equality before thelaw and equal protection of the taw — Article 12 (2). freedom fromdiscrimination on the ground of political opinion — Ultra vires — Good faith—Article 15(7) of the Constitution — Reasonableness — Omnia praesumunturrite esse acta.
This Court can entertain and determine an application challenging, on thegrounds of ultra vires and/or good faith, the validity not only of Regulation14 (7) of the Emergency (Miscellaneous Provisions and Powers)Regulations No. 2 and 3 of 1982 but also of Orders made thereunder bythe Competent Authority referred to in the said Regulations.
Regulation 14 (7) is valid and cannot be assailed on the ground that itempowers a public officer to restrict, deny or suspend the fundamentalrights of equality before the law and the equal protection of the law and thefreedom from discrimination on the ground of political opinion. Theinterference authorised by Article 15 (7) is only by such restrictions as maybe prescribed by law. Regulation 14 (7) passes the three tests involved inthe expression "prescribed by law" namely, firstly, the law must beadequately accessible, secondly the norm to be a law must be formulatedwith sufficient precision to enable the citizen to regulate his conduct andthirdly, the interference must be brought about by a "law". The fact that theRegulation in question vests the power to make the Order in the CompetentAuthority does not detach from its validity.
The provisions of s. 2 of the Public Security Ordinance make the President thesole Judge of the existence or imminence of a state of emergency and of thenecessity for the regulations. In the absence of bad faith or ulterior motive thejurisdiction of the Court is excluded.
Even where power is conferred in a subjective form which at first sight wouldseem to exclude judicial review the Court will intervene if there is any indicationthat the action complained of is outside the scope of the power relied upon asjustifying such action. Regulation 14 (7) is framed not entirely in subjectiveterms and the Competent Authority is empowered to make an order under thatRegulation only if he is satisfied of the existence of certain facts and the .Court
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can inquire whether it was reasonable for the Authority to be satisfied of theexistence of those facts. The evaluation of those facts is for the CompetentAuthority alone, and the Court will not substitute its opinion for that of theCompetent Authority.
The opinion which the Competent Authority had to form was twofold: Whetherthe printing press has been or is likely to be used- for the production ofdocuments and whether the contents of such documents are calculated to beprejudicial to the interests of national security.
Although the theory of uncontrolled and unfettered discretion no longer holdssway, the scope of judicial review is limited where the authority acts reasonably.If the decision is within the bounds of reasonableness it is no part of the Court'sfunction to interfere. The Court must not usurp the discretion of the publicauthority which Parliament had ordained should take the decision. If there arereasonable grounds the judge has no further duty of deciding whether he wouldhave formed the same belief. The standard of reasonablensss varies with thesituation.
The maxim praesumuntur rite esse acta applies and where an order regular onthe face of it is produced the burden is on the petitioner to rebut it.
The exercise of his discretion by the 1st respondent has not beenunreasonable or capricious and the Orders impungned are valid.
Cases referred to
Anisminic Ltd. v. The Foreign Compensation Commission (1969) 1 All ER208.
Hirdaramani v. Ratnavale 75 NLR 67
Gunasekera v. De Fonseka 76 NLR 246
Siriwardena v. Liyanage. S.C. Application No. 120/80 SCM 27.1.83.
Liversidge v. Anderson (1942) AC 206
Redge v. Baldwin (1963) 2 All ER 66. 76.
IRC v. Rossminster Ltd. (1980) 1 Al ER 80. 93.
Secretary of State v. ASLEF {No. 2) (1 972) 2 All ER 949.
A.G. of Saint Christopher v. Reynolds (1979) 3 All ER 1 29 (P C )
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Secretary of State for Education and Science v. Tameside MetropolitanBorough Council (1976) 3 WLR 641.
Roberts v. Hopwood (1925) AC 578.
Padfield v. Minister of Agriculture. Fisheries and Food (1968) 1 All ER 694.
In Re W. (An Infant) (1971) AC 682. 700.
APPLICATION against infringement of fundamental rights.
Nihal Jayawickrema with Faiz Mustapha and V. J. C. Boange instructed by J. C. T.Kotalawela for Petitioner.
M. S. Aziz Deputy Solicitor-General with K. C. Kamalasabaysan. Senior StateCounsel for Respondents.
Cur. adv. vult
February 14. 1983RANASINGHE. J.
The Petitioner, which is a private limited liability companycarrying on the business of printers, engravers, typefounders,diesinkers, photographers, block-makers and said to be one ofthe most modern and sophisticated commercial printingestablishments in Sri Lanka with equipment valued over Rs.6,000.000/-. a work-staff of over 50 persons and a monthlyturnover of about Rs. 750,000/- to Rs. 1.000,000/-, hasinstituted these proceedings for : a declaration that the Order, acopy of which is marked P2. made by the 1st Respondent on20.11.82, purporting to be by virtue of the powers vested in himby Regulation 14(7) of the Emergency (Miscellaneous Provisionsand Powers) Regulations No 3 of 82, directing the sealing of thePetitioner's printing-press situate at premises No. 140, KoswatteRoad, Kalapaluwawa. is null and void for the reason that itconstitutes an infringement by an executive or administrative actof the 1st Respondent of the fundamental rights guaranteed tothe Petitioner by Article 12(1), to equality before the law and ofequal protection of the law —, and 12(2), — to freedom fromdiscrimination on the ground of political opinion — of the
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Constitution : a direction to the 2nd Respondent to hand overpossession of the said printing-press to the Petitioner: an orderfor compensation in a sum of Rs. 30.000/- per day, for each daythat the Petitioner is prevented from engaging in its lawfulbusiness.
On 20.10.82. the day the presidential election was held in theIsland, the President, by a proclamation published in the Gazettebearing No : 215/7 of 20.10.82, declared, around 6 p.m., astate of public emergency in Sri Lanka and brought intooperation the provisions of Part II of the Public SecurityOrdinance (Chap. 40). On the same day the President, actingunder the provisions of Sec. 5 of the said Public SecurityOrdinance, promulgated the Emergency (MiscellaneousProvisions and Powers) Regulations, No. 2 of 1982; and did also,acting in terms of Regulation 2 of the said EmergencyRegulations No. 2 of 82. appoint the 1st Respondent to be theCompetent Authority for the purpose of Regulation 14 of theRegulations. On the 3rd November 82 the Order P1 was made bythe 1st Respondent; and the 2nd Respondent, through hisofficers and agents took possession of and sealed up theaforesaid premises where the Petitioner carried on thePetitioner's said business of commercial printing. Therefore, on
1.82, the President made a further proclamation extendingthe said state of emergency; and the Emergency (MiscellaneousProvisions and Powers) Regulations. No. 3 of 1982, werepromulgated. On the same day the Order P2. dated 20.11.82,was also made by the 1st Respondent; and the 2nd Respondentcontinued to be in possession of the Petitioner's said premisesuntil 3.1.83, on which said date—about three weeks after theinstitution of these proceedings — the said premises werehanded back to the Petitioner.
The Petitioner has, in the petition averred : that the Chairmanof the Board of Directors of the Petitioner-Company is Dr. NevilleFernando : that the other directors are the wife and children ofthe said Dr. Fernando : that the said Dr. Fernando has beenengaged in active politics and was elected, as a member of theUnited National Party, to the Panadura seat in the then National State
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Assembly at the General Election held in July 1977 : that, inDecember 1981, following upon differences which had arisenbetween Dr. Fernando and President Jayewardene, Dr. Fernandowas expelled from the United National Party: that a resolution toexpel Dr. Fernando from Parliament too was thereafter moved :that, on 23.12.81. before the said resolution was voted upon, thePetitioner, however, resigned from membership of Parliament :that, in or about July 1982. Dr. Fernando joined the Sri LankaFreedom Party at the invitation of its president; Mrs.Bandaranaike. and has, since then, actively campaigned for thatparty at public meetings held throughout the Island : that, duringthe months of September and October 1982. Dr. Fernandoaddressed several public meetings in support of the candidatureof the Sri Lanka Freedom Party nominee. H. S. R. Kobbekaduwa.for the office of President of the Republic in his contest againstPresident Jayewardene : that, at such meetings. Dr. Fernandosought to expose the shortcomings of President Jayewardene'sGovernment and was particularly critical of the leadership ofPresident Jayewardene : that, during.those two months, thePetitioner printed two pamphlets in support of the candidature ofthe said Sri Lanka Freedom Party nominee, a colour postercommemorating the second anniversary of the deprivation of thecivic rights of Mrs. Bandaranaike and also two colour portraits ofMrs. Bandaranaike : that these documents were the principalpropaganda material published on behalf of the Sri LankaFreedom Party candidate at the said presidential election andwere circulated and distributed extensively throughout the island: that, on 27.10.82. President Jayewardene announced that ageneral election would not be held on or before October 1983,as required by the Constitution, but that an amendment to theConstitution would be moved to extend the life of the Parliamentfor a further period of 6 years, and that the support of the peoplefor such amendment would be sought at a Referendum : that allthe Opposition political parties, including the Sri Lanka FreedomParty, protested at this move and declared their intention tocampaign against the said proposed amendment : that, since28.10.82. with a view to harassing the Opposition and therebyimpeding its campaign, the government of PresidentJayewardene has. inter alia, arrested and detained
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several members and office bearers of the S.L.F.P., searched theheadquarters of the SLFP, closed down printing-presses at whichelection literature in support of the SLFP, presidental candidatehad been printed : that, on or about 31.01.82, the Petitioner'saforesaid printing-press premises were searched by officers ofthe C.LD. : that, on or about 1.11.82, Dr. Fernando himself wasquestioned by two officers of the C.I.D. whether Dr. Fernandohad any knowledge about the publication of a political pamphletin the form of a rice ration book : that Dr. Fernando denied anyknowledge of any such publication : that the Petitioner neitherprinted nor undertook the printing of the said pamphlet : thatthereafter, on 3.11.82, the Order P1 was made by the 1stRespondent, and the officers and agents of the 2nd Respondenttook possession of the said premises of the Petitioner, and thepremises were sealed up by them on the same day : that asecond order. P2, was also made thereafter on 20.11.82 : thatseveral institutions, such as the Associated Newspapers ofCeylon Ltd., the Times of Ceylon Ltd., the Independent TelevisionNetwork Ltd., the State Printing Corporation, campaigned onbehalf of President Jayewardene at the presidental election andhave engaged themselves in campaigning support for theapproval of the amendment to the Constitution at theReferendum : that the 1st Respondent has made the aforesaidOrder P1 and P2 for an ulterior purpose, namely to victimise,punish and/or take revenge on Dr. Fernando for activelycampaigning against and publicly criticising PresidentJayewardene, for printing literature for and on behalf of theS.L.F.P., and to deter, discourage and prevent Dr. Fernando fromcampaigning against the Government at the said Referendum,and also to cause financial loss and damage to the Petitioner :that the 1st Respondent has, in making the said Order P1 andP2, acted wrongfully, unlawfully and maliciously and in abuse ofhis powers, and has also acted under the dictation of PresidentJayewardene : that the 1st Respondent has not imposed aprohibition similar to that imposed on the Petitioner on any of theother companies persons and bodies similar to the Petitionerwho are also engaged in the competitive business of commercialprinting : that the Petitioner has suffered loss and damage in asum of Rs. 30,000/- per day, during the period its
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printing-press has remained seaied-up. from 20.1 1.82, upon theOrders of the 1 st Respondent.
The 1st Respondent, in his affidavit dated 27.11.82, filedbefore the commencement of the hearing of this application, has,whilst repudiating the Petitioner's allegation that he had, inmaking the orders P1 and P2, been actuated by malice and thathe had done so at the dictation of another for an ulteriorpurpose, taken up the position that: he had credible informationthat pamphlets and other material printed at the Petitioner'sprinting-press prior to and after the presidential election of 1982were calculated to cause racial disharmony between the Sinhalaand Tamil communities and also to incite the masses to resort toviolence against the State : that he had credible information andhe verily believes that the said press was concerned in theprinting of spurious rice ration books : that he was of the viewthat the said press would continue to bring out publications of asimilar nature which would jeopardise the maintenance of goodorder, and prejudice the interests of national security : that thesaid Orders, P1 and P2, were made by him upon a considerationof the material and information made available to him by thepolice and other official sources : that the Petitioner's applicationis misconceived in law, and cannot be maintained.
At the hearing before this Court learned Counsel appearing forthe Petitioner urged several questions of law :.thatthe provisionsof Sec. 8 of the Public Security Ordinance (Chap. 40), and ofSec. 22 of the Interpretation Act (Chap. 2) as amended by ActNo. 18 of 72, do not exclude the jurisdiction of this Court toentertain and determine applications made in terms of theprovisions of Article 126(1) of the Constitution : that Regulation14(7) of the Emergency Regulation Nos. 2 and 3 of 82 underwhich both P1 and P2 are said to have been made, is ultra viresArticle 1 5(7) of the Constitution for the reason that the saidRegulation itself does not restrict the exercise or operation of aFundamental Right but empowers and authorises a public officer(namely the Competent Authority) to do so, and seeks not only to"restrict” a Fundamental Right but also to "deny" or "suspend"such Fundamental Right.
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It was contended for the Respondent that : the validity of theEmergency Regulations in question and/or Orders madethereunder are not justiciable and this Court cannot question thevalidity and the legality of the said Orders : that in any event themoment an Order — such as P1 and P2 — regular and valid onthe face of it and applicable to the Petitioner is produced, it is forthe Petitioner to establish a prima facie inference of bad faith,abuse of power or an ulterior purpose before the Respondentcould be called upon to set out the material upon which theRespondent acted.
It is now settled law that neither the provisions of Sec. 8 of thePublic Security Ordinance (Chap 40) nor of Sec 22 of theInterpretation Ordinance as amended in 1972, operate to oustfully and finally the jurisdiction of the Courts in respect of thematters referred to in the said provisions, but that such exclusionwould be operative only in respect of acts done in good faith andare ex facie regular, and which are not tainted by malice or by anabuse of power — vide the decision of the House of Lords in thecase of Anisminic Ltd. v. The Foreign CompensationCommission,^', and the decisions of the Supreme Court inHirdaramani vs. Ratnavale,2; Gunasekera vs. De Fonseka,3 ; andS.C. APN/GEN/6-20/74, H.C. Bandulia V/1/74 et at (9judges), S.C.M. 3.9.74.
Article 170 of the Constitution promulgated in 1978 defines"existing law", "existing written law", "law" and "written law".Article 168 (1) provides that unless Parliament otherwiseprovides, all laws, written laws and unwritten laws, in forceimmediately before the commencement of the Constitution shall,mutatis mutandis and except as otherwise provided in theConstitution, continue in force; and sub article (2) states that,save as otherwise provided in the Constitution, existing laws,written laws and unwritten laws are not and shall not in anymanner be deemed to be provisions of the Constitution. ChapterXVIII of the Constitution, which deals with Public Securityprovides, in Article 155 (1), that the Public Security Ordinancceas amended and in force immediately before the commencementof the Constitution be deemed to be a law enacted by
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Parliament, and sub-article (2) provides that the power to makeemergency regulations shall include the power to makeregulations having the legal effect of over-riding, amending orsuspending the operation of the provisions of any law. except theprovisions of the Constitution. In terms of Article 80 (3) once aBill becomes law. no Court can inquire into, pronounce upon orin any manner call in question, the validity of such Act on anyground whatsoever. This ouster clause, being operative only inrespect of Bills becoming laws as set out in this sub-article, willnot, therefore, cover emergency regulations. Article 16(1) statesthat "all existing written law and unwritten law shall be valid andoperative notwithstanding any inconsistency with the precedingprovisions of this Chapter". The Chapter so referred to is ChapterIII which deals with Fundamental Rights, and commences withArticle 10. Articles 10 to 15 spell out the Fundamental Rights.Article 17 gives the right to every person, who complainsinfringement or imminent infringement by executive oradministrative action, of a fundamental right to which suchperson is entitled under the said Chapter III to apply to theSupreme Court as provided by Article 126. Article 17. coming asit does after Article 1 6. would not be a "preceding provision" ascontemplated by Article 16, and does not therefore have to haveway to any inconsistent provision contained in any other existingwritten law. such as the Public Security Ordinance or theInterpretation Act.
Furthermore, in the case of B. A. Siriwardena et at vs. D. J. F.Liyanage et at A. a Bench of five judges of this Court did, by amajority decision, entertain and determine an application, whichchallenged an Order made by the 1st Respondent himself (andexecuted by the officers and agents of the 2nd Respondent) inrespect of another printing-press, under the self-same Regulation14 as is impugned in these proceedings.
A consideration of the aforementioned Articles of theConstitution and the authorities, leads me to the view that thisCourt can entertain and determine an application — such as hasbeen made by the Petitioner in these proceedings — challenging,on the grounds of ultra vires and/or of good faith, the validity not
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only of Regulation 14 (7) of Emergency (MiscellaneousProvisions and Powers) Regulation Nos. 2 and 3 of 1982, butalso of Orders – such as P1 and P2 — made thereunder by theCompetent Authority referred to in the said Regulation.
The validity of the said Regulation 14 (7) is challenged on thegrounds : that it does not itself restrict the exercise or operationof a Fundamental Right but empowers and authorises a publicofficer to do so: that it seeks not only to "restrict", but also to"deny" or "suspend" a Fundamental Right. The two FundamentalRights which the Petitioner complains have been infringed arethose set out in Articles 12 (1) and (2), namely the right toequality before the law, the equal protection of the law, and thefreedom from discrimination on the ground of political opinionrespectively. It is contended : that, in view of the provisions* ofArticle 4 (d) of the Constitution, a Fundamental Right can beabridged, restricted or denied only in the manner and to theextent referred to subsequently in the Constitution : that themanner and the extent of such interference has been set out inArticle 1 5 (7) : that the interference authorised by Article 1 5 (7)is only by "such restrictions as may be prescribed by law in :that Regulation 14 (7) goes beyond imposing a mere restriction :that, in effect, it clamps down a complete closure, an act whichwould amount to a complete denial : that Regulation 14(7) doesnot, even if what it seeks to impose is only a restriction,constitute an interference "prescribed by law”, as required byArticle 1 5 (7), as any such restriction is not imposed by the sub-article itself, but is left to be imposed by another, namely theCompetent Authority referred to therein. Learned Counselsubmitted three requirements which were said to flow from theexpression "prescribed by law": firstly, the law must beadequately accessible ; secondly, the norm to be a law must beformulated with sufficient precision to enable the citizen toregulate his conduct ; and thirdly, the interference must bebrought about by a "law".
The said Regulation 14(7) is as follows :
"if a competent authority is of opinion that any printing
press or a printing press under the control of any person.
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has been or is likely to be used for the production of anydocument containing matter which is in his opinioncalculated to prejudice the interests of national security orthe preservation of public order or the maintenance ofsupplies and services essential to the life of the communityor matter inciting or encouraging persons to mutiny, riot orcivil commotion, the competent authority may by order'direct that the printing press, or all or any of the printingpresses under the control of that person, as the case maybe, shall, so long as the order is in force, not be used forany purpose whatsoever or for any such purpose as isspecified in the order ; and any such order may authorizeany persons specified therein to take steps (including thetaking possession of any printing press with respect towhich the order is made or of any premises in which it iscontained or any part of such printing press or premises) asappear to the persons so authorized to be necessary forsecuring compliance with the order."
An order made by a Competent Authority under this Regulationis subject to review by the President himself, and also by theAdvisory Committee appointed by the President to which a partyaggrieved by any such order could make representations.
A careful examination of the provisions of the said Regulation14 (7) does show that the first and second requirements referredto above are already satisfied, and that any step by theCompetent Authority in terms of the said paragraph would notamount to a total denial of any of the rights set out in Article 1 2
and or (2). By virtue of the provisions of Article 1 5(7) of theConstitution, an emergency regulation made under theprovisions of the Public Security Ordinance (Cap. 40). is. for thepurpose of paragraph (7) of Article 1 5, considered to be "law”.
The fact that the Regulation in question vests the power tomake the Order in the Competent Authority does not detract fromits validity. De Smith's Judicial Review of Administrative Action
(4 edt) at page 300 states : 'There is a strong presumption against
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construing a grant of delegated legislative power as empoweringthe delegate to sub-delegate the whole or any substantial part ofthe law-making power entrusted to it …. But the presumption isnot irrebuttable, and in a Canadian wartime case the power ofthe Governor-General in Council to make such regulations as hemight by reason of the existence of war deem necessary oradvisable for the defence of Canada was held to be wide enoughto enable him to sub-delegate to the Controller of Chemicalspower to make Regulations …. It is doubtful whether impliedauthority to sub-delegate legislative power would ever be impliedby the English courts save in ..time of grave emergency."Bindra's : Interpretation of Statutes (6 edt) at page 695 refersto the American case of Lock's appeal in which the Court hasstated :
"To assert that a law is less than a law. because it is made todepend on a future event or act is to rob the Legislature ofthe power to act wisely for the public welfare whenever alaw is passed relating to a state of affairs not yet developedor to things future and impossible to fully know. The Courtcannot delegate its power to make a law. but it can make alaw to delegate a power to determine some fact or state ofthings upon which the law makes or intends to make itsown action depend. To deny this would be to stop thewheels of government. There are many things upon whichwise and useful legislation must depend which cannot beknown to the law-making power, and must, therefore, be asubject of inquiry and determination outside the halls oflegislation."
The provisions of Sec. 2 of the Public Security Ordinance makethe President the sole judge of the existence or imminence of aState of Emergency, and the necessity of bringing into operationthe provisions of Part II of the said Ordinance. Part II vests thePresident with wide and extensive powers to deal with theemergency situation. The President's view of the necessity andthe expediency of the regulations needed to combat the situationis conclusive of their necessity, and. in formulating them for thepurposes of Sec 5. he is bound only by the provisions of Article1 55(2) of the Constitution. He is the sole judge of the necessityfor the regulations. It is the subjective opinion of the
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President that matters ; and in the absence of bad faith or ulteriormotive, the jurisdiction of the Court is excluded.
As set out earlier, what came up for consideration by this Courtin Siriwardena's case, referred to above, were also the self-sameRegulation 14 and an Order, similar to P1 and P2. made by the1st Respondent under paragraph (3) of the said Regulation,which deals with the control of publication.
I am of the opinion that the Petitioner's submission in regard tothe validity of the said Regulation 14 (7) must fail.
I shall now consider the submission made on behalf of theRespondents that the power conferred by Regulation 14 (7) onthe 1st Respondent is in subjective terms and that, in theabsence of bad faith, this Court cannot and must not intervene.As set out earlier. Regulation 14(7) empowers the CompetentAuthority to make an Order if he "is of opinion that any printing
presshas been or is likely to be used for the production of
any document containing matter which is in his opinioncalculated to prejudice the interests of …." This method ofvesting authority, according to De Smith : Judicial Review ofAdministrative Action — 4th edt at page 362. in "acommonplace technique in emergency legislation, and itexpected that the courts will show due deference not only to theopinion of the Executive that a state of emergency exists but alsoto the opinion of the Executive that particular facts exist callingfor the exercise of detailed emergency powers granted by theStatute".
Any discussion of this subject in our Courts must perforcecommence with the judgment of this Court in Hirdaramani's case(supra) delivered in December 1971, in which, after anexhaustive discussion by Chief Justice (H.N.G.) Fernando of thethen English law on the subject with reference to a DetentionOrder made in terms of an Emergency Regulation, whichcorresponded to Regulations 2 and 3 of 1982 referred to earlier,this Court held that, once a Detention Order which is valid on itsface, is produced.it is for the detainee to prove facts necessary tocontrovert the matter stated in the Detention Order and that if the
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detainee fails to establish a prima facie case against the goodfaith of the authority who made the Order in question, the onusdoes not shift to the Permanent Secretary to satisfy the Court ofhis good faith. The views expressed in that case have been to aconsiderable degree been influenced by the majority decision inthe English case of Liversidge v. Anderson5 which was decidedby the -House of Lords in the year 1 942, at the height of theSecond World War. The emergency legislation of the SecondWorld War gave the Executive extensive powers over bothpersons and property. The grant of power was couched inlanguage which on a literal interpretation was sufficient to clothealmost any act which was claimed to have been done under theauthority of such a grant. The Courts not only gave a strictlyliteral interpretation to subjectively worded grants, but also intheir anxiety not to obstruct the war effort which required theentire attention of the Executive, they also declined – lest ajudicial review of executive action be highly detrimental to thenational interest — to interpret literally grants which prima facieenabled the Courts to review the reasonableness of the groundsfor the exercise of discretionary powers that authorised summarydeprivation of personal liberty —De Smith – p 290; 349-350.
During the last two decades, however, the pendulum hasswung, and the English Courts have since steered away from themajority view expressed in Liversidge's case (supra), (referred toby Lord Reid in Ridge v. Baldwin6 as "the very peculiar decisionof this House", and by Lord Diplock in IRC v. Rossminster Ltd7 inthe words : "For my part the time has come to acknowledgeopenly that the majority of this House in Liversidge v. Andersonwere expediently and. at that time, perhaps, excusably wrong andthe dissenting speech of Lord Atkin was right"); and to-day theCourts are resistant to the whole notion of uncontrollable power— Wade : Administrative Law — 4th edition — p. 338 — ; andthe notion of unfettered administrative discretion has now beentotally rejected — Wade ps. 20, 342. The Courts will not bereadily deterred by subjectively worded statutory formulae fromdetermining whether acts done avowedly in pursuance ofstatutory powers bear an adequate relationship to the purposesprescribed by the statute — De Smith (supra) p. 326 ; Secretaryof State v. ASLEF8 AG of Saint Christopher v. Reynolds9: IRC v.Roseminster Ltd. (1980 1 AER p 80 (Supra); Secretary of Statefor Education and Science v. Tameside Metropolitan BoroughCouncil10.
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Having regard to what has been stated above it would seemthat the present position is that, even where power has beenconferred in a 'subjective' form, which at first sight would seemto exclude judicial review on the basis that it is a matter of "purejudgment", the Court would still disregard 'subjective' language ifthere is any indication that the action complained of is outsidethe scope of the power relied upon as justifying such action.
In Siriwardena's case (supra), (which is better known as the"Aththa case") the majority view, arrived at after an examinationof Hirdaramani's case and the other relevant Englishauthorities.in regard to the nature and scope of Regulation 14(3)— which is in terms similar to those in Regulation 14(7) underwhich the Order P2 relevant to those proceedings has beenmade by the 1 st Respondent — is that: Regulation 14(3) isframed not entirely in subjective terms, and the CompetentAuthority is empowered to make an order under that Regulationonly if he is satisfied of the existence of certain facts, and theCourt can inquire whether it was reasonable for the Authority tobe satisfied of the existence of those facts : that the evaluation ofthose facts is for the Competent Authority alone, and the Courtwill not substitute its opinion for that of the Competent Authority :that the phrase "preservation of public order" in this Regulationmeans the prevention of disorder or the maintenance of peaceand tranquillity. It has also, however, to be noted that, in thecourse of the judgment, which embodied the majority view,Wimalaratne. J. did observe that where the opinion to be formedis that a publication is likely to be calculated to be prejudicial,then the opinion is a subjective opinion, which is similar to theopinion that has to be formed before a detention order is made,but that where the opinion is one that is formed on somethingthat has already been published or is being published then theopinion is not a purely subjective opinion and is one that can beformed only if he is satisfied of the exsitence of certain facts,namely, the existence of publications which are calculated to beprejudicial to the interests of national security or the preservationof public order, and so on.
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P2 is the Order impugned in these proceedings. It has beenmade on 20.11.82 by the 1 st Respondent and is in the followingterms;
"By virtue of the powers vested in me by Regulation 14(7) ofthe Emergency (Miscellaneous Provisions & Powers)Regulations No. 3 of 1982. I. Don John Francis DouglasLiyanage. Secretary to the Ministry of State appointed to beCompetent Authority for the purpose of Regulation 14.being of the opinion that the J. F. & I Printers. No. 140.Koswatte Road, Kalapaluwawa is likely to be used for theproduction of documents containing matter which is in myopinion calculated to prejudice the interests of nationalsecurity, the preservation of public order, the maintenanceof supplies and services essential to the life of thecommunity, and matter inciting or encouraging persons tomutiny, riot or civil commotion, do by this order direct thatthe said printing press shall, so long as this order is in force,not be used for any purpose whatsoever; I also do herebyauthorise the Inspector General of Police to take such steps(including the taking possession of the said printing pressor of any premises in which it is contained) as appear to himto be necessary for securing compliance with this order."
The earlier order P1, made on 3.11.82, which was the first tobe made by the 1st Respondent, was also in the same terms. Ithas to be noted straightaway that the opinion which the 1stRespondent has expressed in P2 (and also in P1) — unlike in theorder in the Aththa case (supra) wherein the opinion expressedby the 1st Respondent is that, "there has been published in the
Aththa newspaper matter" — is that the Petitioner's printing-
press "is likely to be used for the production of documents"
The opinion, which the Competent Authority has to form, interms of Regulation 14(7), is twofold : whether the printing-pressin respect of which an Order is to be made "has been or is likelyto be used for the production of documents, and whether thecontents of such documents are calculated to be prejudicial tothe interests of national security and so on. The opinion expressed
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by the 1 st Respondent in P2 (and in PI) is, therefore, in terms ofthe judgment in the Aththa case, a subjective opinion.
The judgment in the Aththa case (supra) also refers to theviews expressed by Chief Justice (H.N.G.) Fernando in theHidaramani 1980 (supra) in regard to the burden of proof oncean Order, regular on the face of it is produced on behalf of theExecutive. In the proceedings now before this Court the 1stRespondent has not pleaded that he is unable to disclose thefacts and circumstances which led him to form the opinion,which he says he did, in asking the Order P2. On the contrary the1st Respondent has disclosed to this Court the material he issaid to have relied on, and the learned Deputy Solicitor-General,appearing for the Respondents has addressed this Court on thesaid material.
The judgment in the Aththa case (supra) also furnishes theanswer to the submissions made by learned Counsel for thePetitioner in these proceedings : in regard to the meaning to begiven to the words "preservation of public order" : and also inregard to the alleged total failure to exercise the discretionvested in the 1st Respondent by Regulation 14(7) as isevidenced by the 1 st Respondent's reference in P2 (and in P1) toall the grounds stipulated in Regulation 14(7).
Now that the theory of uncontrolled and unfettered discretionfree from judicial review no longer holds sway, the question thatarises immediately is the scope of the judicial review, the natureand the extent to which the Courts should interfere in theexercise of a discretion, and the limits within which it ispracticable to question the exercise of such discretion. The realquestion is — as Wade (supra) states at page 340 — whether thediscretion is wide or narrow and where the legal line has to bedrawn ; and that for this purpose, everything depends upon thetrue intent and meaning of the empowering Act. In the case ofRoberts v. Hopwood"4. Lord Wrenbury stated :
"A person in whom is vested a discretion must exercise his
discretion upon reasonable grounds. A discretion does not
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empower a man to do what he likes merely because he isminded to do so — he must in the exercise of his discretiondo. not what he likes but what he ought. In other words, hemust, by the use of his reason, ascertain and follow thecourse which reason directs. He must act reasonably."
In the case of Padfield v. Minister of Agriculture. Fisheries andFood12 which has been characterized by Lord Denning in 1971as a "land-mark in modern administrative law", the House ofLords, having decisively rejected the theory of unfettereddiscretion, went on to indicate that in the end the assessment ofthe balance of public interest would be for the Minister himselfand that, after a consideration of the public interest, whether heacts or not he may be criticised and held accountable toParliament but that the Court cannot interfere. Commenting onthis decision, Wade at page 344 observes : "But the distinctiondrawn by the House of Lords shows how a statute which confersa variety of discretionary power may confer wider or narrowerdiscretion according to the context and the general scheme ofthe Act. Translated into terms of the traditional rule that powersmust be exercised reasonably, this means that the standard ofreasonableness varies with the situation. The pitfalls that must beavoided are those of literal verbal interpretation and of rigidstandards".
In regard to the legal standard of reasonableness it must benoted that the doctrine that powers must be exercisedreasonably has to be reconciled with an equally importantdoctrine that the court must not usurp the discretion of thepublic authority which Parliament had ordained should take thedecision ; for, within the confines of legal reasonableness is thearea within which the public authority has genuinely freediscretion. Thus if the decision is within the bounds ofreasonableness, it is no part of the Courts function to lookfurther into the merits ) — Wade p. 348. in this connection it isuseful to recall what Lord Hailsham observed in the case of In ReW. (An Infant)13 :
'Two reasonable (persons) can perfectly reasonably cometo opposite conclusions on the same set of facts without
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forfeiting their title to be regarded as reasonable
Not every reasonable exercise of judgment is right, and notevery mistaken exercise of judgment is unreasonable. Thereis a band of decisions with which no Court should seek toreplace the individuals judgment with (its) own."
These observations were cited with approval by Lord Salmonin the Tameside case (supra) where very important statements inregard to the legal standard of reasonableness were made bothby the Court of Appeal and by the House of Lords. In the Court ofAppeal Lord Denning expressed as follows at page 651:
"Much depends on the matter about which the Secretary ofState has to be satisfied. If he is to be satisfied on a matterof opinion, that is one thing. But if he has to be satisfied thatsome one has been guilty of some discreditable orunworthy or unreasonable conduct, that is another";
and at page 652:
"No one can properly be labelled as being unreasonableunless he is not only wrong but unreasonably wrong, sowrong that no reasonable person could sensibly take that
view."
In the House of Lords. Lord Salmon at page 686-7, as alreadystated adopted what Lord Hailsham L.C. stated in the case of Inre W (An Infant) (Supra); and Lord Diplock at page 681
observed:
"The very concept of administrative discretion involves aright to choose between more than one possible course ofaction upon which there is room for reasonable people tohold differing opinions as to which is to be preferred."
In the application of the legal standard of reasonableness inrespect of acts done by public authorities in the exercise ofpowers which have been vested in them in subjective terms animportant matter that has to be considered is the nature of thesubject matter and the circumstances in which such discretion
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has to be exercised. In discussing this aspect of this subject.Smith (supra) at page 349 states: "the criterion ofreasonableness is not subjective, but objective in the sense that itis subject to formulation and application by a court of law. That isto say that the courts will readily interfere with the exercise ofdiscretion if, from the nature of the subject matter or thesurrounding circumstances (eg. the necessity for taking swiftaction for the preservation of public order), it would be difficultfor anyone but the repository of the power to form an opinion asto the occasion for its exercise, or if it would be unfair to penalisethe authority for a possible error of judgment in a doubtful case.In such a situation:
If there are reasonable grounds, the judge has no furtherduty of deciding whether he would have formed the samebelief any more than, if there is reasonable evidence to goto a jury, the judge is concerned with whether he wouldhave come to the same verdict'- per Lord Atkin inLiversidge's case (supra)".
It is clear from what has been set out earlier that all discretion,even where there is a subjective element in it. must be exercisedreasonably, and in good faith and upon proper grounds. Yet,there are situations, in which such words are used, where it isclear both from the subjective language and the context that thediscretion granted is exceptionally wide. Such instances are mostcommon in powers granted to meet emergency situations. Intimes of grave emergency it is unlikely that the theoretical judicialcontrol will be able to come to play as the ingredient of policy isso large by comparison with the ingredient of ascertainable andrelevant fact -Wade – (supra) pages 375-6. In regard to theexercise of a discretion in an emergency situation. Lord DenningM. R. expressed himself in Secretary of State vs. ASLEF (No. 2)(supra) at p. 967 as follows:
“but when he honestly takes a view of the facts or the
law which would reasonably be entertained then hisdecision is not to be set aside simply because thereaftersomeone thinks that his view is wrong. After all this is anemergency procedure. It has to be set in motion quickly.
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when there is no time for minute analysis of facts or oflaw. The whole process would be made of no effect if theMinister's decision was afterwards to be coined over wordby word, letter by letter to see if he has in any waymisdirected himself. That cannot be right. Take this very
case. He made a mistake in; but that, in my
opinion, was not sufficient to invalidate the application orthe basis on which he acts."
Having considered the legal principles applicable to asituation, which arises upon an application such as the onethat has been made by the Petitioner in these proceedings,where there is an interplay of the traditional roles of theJudiciary – as upholders of law and order and as protectors ofthe individual against inroads made by the Executive into hispersonal liberty and property – I shall now turn to consider thefactual bases relevant to this application.
In considering the facts it has also to be borne in mind thatthe Respondents are entitled to call in aid the maxim omniapraesumuntur rite esse acta and that where an Order regularon the face of it – such as P2 (or PI)- is produced the burdenis on the petitioner to rebut the presumption. How muchevidence will be required depends on the facts andcircumstances of each case. Where the grounds of attack arebad faith or unreasonableness or where the particular act isbased upon the opinion of the person so making the order, thepetitioner's task would be heavier – Wade p. 293:Hirdaramani's case (supra)-, IPC v. Rossminster (supra) perLord Diplock at p. 95. I
I have at an early stage of this judgment set out at lengththe factual position put forward by the Petitioner. Thegravamen of the Petitioner's complaint is that the closure ofthe Petitioner's printing-press was not only an act ofvengeance on the part of the Executive because of the bitterpolitical differences the Chairman of the Petitioner's Board ofDirectors, Dr. Fernando, had had with the Government andthe strong criticism of the President and his Government byDr. Fernando, but is also an attempt to muzzle the Petitionerand Dr. Fernando by preventing the Petitioner's
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printing-press from being used to turn out propaganda materialto oppose the Government during the referendum-campaign;and that the Petitioner has been singled out for this harshtreatment because of the political opinion held by Dr. Fernando.It has. however, to be noted that; although the State ofEmergency was declared on the evening of the 20th October andthe Emergency Regulations were promulgated on the same day.the Order against the Petitioner was made only after the lapse ofabout a fortnight on 3.11.82. on which said date the report XIwas submitted to the 1st Respondent; prior to 3.11.82 officers ofthe Criminal Investigation Department had. on 31.10.82.searched the premises in which the Petitioner's printing-presswas installed and had, during the course of such search, takencharge of from Naomal Fernando, who is the General-Managerof the Petitioner-company and who is also the son of Dr.Fernando, a copy of the spurious rice ration-book which is saidto have been distributed by the opposition parties during thepresidential election; on 1.11.82 Dr. Fernando himself had alsobeen questioned by these officers. If, as is maintained by thePetitioner, the 1st Respondent was prompted by such impropermotives as are alleged in the petition, a period of even two weekswould be a comparatively long period for such a person as the1st Respondent, who had the necessary power to act. to holdhimself back.
The two-fold opinion expressed by the 1st Respondent in P2(and in P1) is:
that the Petitioner's printing-press is likely to be used forthe production of documents, and
that the contents of such documents would be calculatedto—
prejudice;
the interest of national security,
-the preservation of public order,
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(ii) the maintenance of supplies, and servicesessential to the life of the community; and
incite or encourage persons to mutiny, riot or civilcommotion.
The 1st Respondent has. in his affidavit dated 27.12.82 filedbefore the commencement of the hearing of this applicationbefore this Court, stated that;
he had credible information that pamphlets and othermaterial printed at the JFI Printers prior to and after thePresidential election 1982 was calculated to cause racialdisharmony between the Sinhala and Tamil communitiesand also to incite the masses to resort to violence againstthe state;
he also had credible information, which he verilybelieved, that the Petitioner's press was concerned inprinting rice ration books identical or similar in form tobooks that were lawfully issued by the FoodCommissioner, which were in his-view likely to causepublic disorder; and that he was also of the view that thesaid press would continue to bring out publications of asimilar nature which would jeopardise the maintenanceof good order and security in the country;
the Orders in question. P1 and P2, were made by him ona consideration of material and information madeavailable to him "by the Police and other official sources."
On 24.1.83, at the very commencement of the hearing beforethis Court, learned Deputy Solicitor-General tendered to Court,on behalf of the Respondent an affidavit, dated 17.1.83. fromP.B.G. Aluvihare the Acting Director Criminal InvestigationDepartment. Although the Respondents had no right to have thisaffidavit accepted by this Court as the time limit prescribed bythe Rules of this Court for the filing of affidavits on behalf of theRespondents had expired, yet. it was accepted by this Court
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because Mr. Jayawickreme, appearing for the Petitioners,expressly informed Court that he has no objection to it beingaccepted by this Court.
Thereafter, on the following day, 25.1.83, whilst Mr.Jayawickreme was making his submissions to this Court inregard to the aforesaid affidavit of the 1st Respondent, dated27.12.82, in answer to a query addressed by this Court tolearned Deputy Solicitor-General as to what the "material andinformation made available to me by the Police and other officialsources" referred to in paragraph 14 of the 1st Respondent'ssaid affidavit, were, he tendered to Court the document whichwas then directed by this Court to be marked XI. No objectionwas taken by Mr. Jayawickreme to the acceptance of the saiddocument. In fact later on the same day Mr. Jayawickreme did, inthe course of his submissions, state, with reference to the saiddocument "X", that he cannot dispute it and that it may havebeen received. When the document was tendered and so marked"X", this Court indicated to the learned Deputy Solicitor-Generalthat an affidavit identifying the said document "X" and givingdetails of the aforesaid "official sources" would have to be filed.When thereafter, the hearing was resumed on 27.1.83, learnedDeputy Solicitor-General tendered to Court an affidavit dated26.1.83, from the 1st Respondent. Thereupon Mr. Jayawickremedesired to have time to consider this affidavit, stating that hemight have to object to its reception as it has been filed after thelapse of the one-week period and after he has concluded hissubmissions, and that it seems to change the complexion of thecase, and he had to consider whether to apply to cross-examinethe 1st Respondent. Thereafter, when further hearing wasresumed on 31.1.83, Mr, Jayawickreme objected to the saidfurther affidavit of the 1st Respondent, dated 26.1.83, beingaccepted on the grounds: that, as it has been filed after the 7 dayperiod set out in Rule 65 (4) (ii) of the Supreme Court Rules of1 978, this Court has no power to accept it: that acceptance of itwould cause prejudice to the Petitioner as it has been tenderedafter he, Mr. Jayawickreme, had drawn the attention of Court tocertain significant omissions in the first affidavit and he hadconcluded his submissions, and that new material was nowbeing tendered: that the Court would by accepting it reverse its
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role to hear and determine this matter, and descend to the arena.After a consideration of the said objections this Court decided atthat stage to admit the said affidavit, and informed Mr.Jayawickreme that he would be given, if he so desired, theopportunity of filing any further counter affidavits. Thereupon Mr.Jayawickreme immediately tendered to Court three affidavits, alldated 31.1.83, from: the Petitioner himself, the Petitioner's son.Naomal Fernando, who is also the General-Manager of thePetitioner-Company, and from a person named R.M. Jayantha anemployee of the Petitioner-Company. Another affidavit from theAccountant/Secretary of the Petitioner-Company, in regard tothe computation of the damages claimed by the petitioner, wasalso tendered along with the three affidavits referred to earlier.
On consideration of the objections referred to above, thisCourt was of opinion that they were not entitled to prevail. Thetime limits set out in the Supreme Court Rules 1978 are thosethat have been laid down for compliance by the respectiveparties in regard to the material that they desire the Court toconsider in support of their respective positions, at the hearing.These procedural rules are strictly for the observance of thosewho are parties to the proceedings. They do not detract in anyway from the inherent power of the Court to probe further anymatter, which, the Court considers, should, in the interests ofjustice, be clarified. The Court is not bound to accept generalisedstatements made by the parties, and is and should be. entitled todirect the parties to file full particulars. Such a step would notamount to giving a party an opportunity to tender "new material".What was done on this occasion was to refer to a generalisedstatement in the 1 st Respondent's affidavit and to ask for furtherparticulars, and query what the "sources" so referred to were.Any reply given in elucidation of such a query had undoubtedlyto be in the form of an affidavit. The evidentiary value to beattached to the averments in such a further affidavit is anothermatter, which is entirely for the Court to determine. If such anaffidavit seems to the Court to render it necessary for theopposing party to be given an opportunity to file a counter-affidavit, the Court should – and Courts do in fact – grant such anopportunity. In fact, in applications made to this Court invoking
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the jurisdiction of this Court, as is now being exercised in theseproceedings, this Court has on several earlier occasions raisedsimilar queries, and received in evidence further explanatoryaffidavits. Even in this case, after this Court decided to admit thesaid affidavit, this Court did grant the Petitioner an opportunity tofile.a further counter affidavit, and the Petitioner did file threesuch counter-affidavits. In fact the Petitioner seemed to haveanticipated such a situation, and was in fact ready to make fulluse oil it immediately. The procedure adopted by this Court doesnot, in any way. derogate from the duty of this Court to "hear anddetermine". Nor does it constitute a descent by this Court intothe arena and having its vision clouded in any manner. There isno merit in the objection.
P.B.G. Aluvihare, in his-affidavit referred to above, states that:he affirms to the contents of the said affidavit in his capacity asacting Director Criminal Investigation Department as the Direcorhimself is presently out of the Island: that inquiries wereconducted under the supervision of the Director by the officersof the Department upon confidential information which wasreceived that the Petitioner's printing-press was printingpamphlets, posters and other material which was calculated tocause racial disharmony and affect the internal security of theState: that he also received similar information which indicatedthat the Petitioner's printing-press had been involved in printingspurious rice ration books: that the details of the nature of theinformation so received and of confidential inquires made intosuch information were communicated to the 1st Respondent bythe Director before the first Order (P1 of 3.11.82) was made bythe 1st Respondent.
In the aforesaid further affidavit, dated 26.1.83. of the 1stRespondent, the 1st Respondent gives particulars of the "officialsources" referred to in his earlier affidavit. They are: the membersof the National Security Council, and "two highly placed officialsof the Ministry of Defence", whose identity, he states, he isprepared to disclose to this Court. He also refers to the "advice"given to him by them. He also gives particulars of the informationgiven to him by the Police: the communication addressed to aDeputy I n s p e c t o r – G e n e r a I of Police by the
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Director, Criminal Investigation Department, and which is thedocument the 1st Respondent has since handed over to theAttorney-General's department and is now before this Courtmarked XI: the taking into custody of spurious rice ration booksfrom the premises of the Petitioner's printing-press.
Although the fact that the Police had actually taken charge ofone such spurious rice ration book from the printing-presspremises was not expressly averred in the first affidavit, the 1stRespondent did clearly state that he verily believes, upon credibleinformation received by him that the Petitioner's printing-press"was concerned in" the printing of such spurious rice rationbooks. The Petitioner, has, through the counter-affidavits filed byits General-Manager and an employee, accepted the fact that thePolice did, during the search carried out on 31.10.82, takecharge of such a spurious rice ration-book. These affidavits givethe Petitioner's version of how the Police did come to so takecharge of the document. Whatever the correct version be —whether it was traced by the Police officers themselves orwhether it was shown to the Police by Naomal Fernandohimself—, the fact is that the document had in fact been takencharge of by the Police from the premises in question during thecourse of a search of the said premises. It is a circumstance thatthe 1st Respondent was entitled to take into consideration.
XI is dated 3.11.82, and is a document addressed by a verysenior and responsible officer of the Police force, namely theDirector Criminal Investigation, to his superior, the DeputyInspector General. C.I.D. This document has been placed beforethe 1st Respondent on 3.11.82 itself, and has been taken intoconsideration by the 1st Respondent before he made the OrderP1 on the same day. True, it is that the four institutions named inXI have not been expressly connected, on the face of XI itself,with the activities set out in paragraph (1) of XI. Yet. on a readingof the entirety of the document, it is clear that what is beingsought to be conveyed is that the four printing-presses so namedin the document are responsible for the printing of the literatureset out in the first paragraph. It transpired, at the hearing before
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this Court; that orders similar to those made against J.F. and Iprinters (the Petitioner Company) have also been made againstthe other three printing-presses, named in XI, as well. It is notas if the Petitioner alone, out of the four named in XI, had beensingled out.
It was submitted on behalf of the Petitioner that the 1stRespondent should have contacted the Archives and theRegistrar of Publications; for, he would then have been able toperuse the documents that are said to have been so printed bythe Petitioner. Printers have no doubt, under the law, toforward such copies to the institutions referred to. It would,however, not be unreasonable to think that a person, whoprints documents such as are said to have been so printed bythe Petitioner, would not forward, as required by law, copies ofsuch documents. The failure to contact these officials cannot,and must not. therefore, be counted against the 1stRespondent.
A consideration of the foregoing shows that the 1stRespondent had before him: the communications made to himby the "official sources", namely, the members of the NationalSecurity Council, and officials of the Ministry of Defence: andthe information supplied by the Police in the form of, at least,the document XI, and also in regard to the spurious riceration-book taken charge of by the Police during their searchof the Petitioner’s premises on 31.10.82.
The question that arises is whether the material so availableto the 1 st Respondent could be said to have been sufficent to justifythe 1st Respondent's action in making the Order P2? Was itreasonable for the 1 st Respondent to have decided to do whathe did upon such material? It has to be remembered that thematerial placed before the 1st Respondent was so placedbefore him by senior responsible officers. Officers whosesense of responsibility and bona fides the 1 st Respondentwould have had no reason to doubt. The 1st Respondentwould not himself have personally undertaken aninvestigation. Time was a decisive factor. If meaningful actionwas to be taken, it had to be speedy enough to prevent themischief apprehended. Against this background is it possibleto say that the 1st Respondent was wrong in doing
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what he did on the 3rd and the 20th November 1982? It may bethat another might have waited for more material beforeproceeding to act. The question, however, is whether thedecision of the 1 st Respondent to act in the way he did was suchthat no reasonable person would have done what he did? Washis decision to act so very unreasonable? Was his exercise of hisjudgment so hopelessly indefensible? Has the exercise of thediscretion vested in him been wholly unreasonable andcapricious? I think not. May be another would have not donewhat the 1st Respondent did; but the 1st Respondent cannot besaid to have done what no reasonable person would have everdone in such cicumstances. The good faith, of the 1stRespondent, though attacked on the grounds of politicalvengeance, improper motives, failure to exercise his discretion,acting on the dictation of the President, and partiality has notbeen shaken.
In this view of the matter. I am of opinion that the Order P2(and also P1) is valid. The Petitioner has. in my opinion, failed toestablish that there has been an infringement by theRespondents of either of the Petitioner's Fundamental Rightsrecognized in Article 12(1) and (2) of the Constitution.
For the reasons set out above, I make order dismissing thePetitioner's application, but without costs.
SHARVANANDA. J. – I agree
VICTOR PERERA. J. – I agree.
Appeal dismissed.