v.RATNASIRI WICKREMANAYAKE AND OTHERS
WIJETUNGA. J. ANDDR. GUNAWARDANA, J.
S.C. APPLICATION NO. 623/96JANUARY 28. 1997.
Fundamental Rights – Curtailment of Public holidays – Section 4 of the HolidaysAct, No. 19 of 1971 – Effect on freedom of worship and right to equality – Articles14(1 )(e) and 12(1) of the Constitution.
The Holidays Act. No. 19 of 1971 declared every full moon poya day and Sundayto be a public holiday. In addition, certain days specified in the 1st Schedule werealso made public holidays. Section 4 gave the Minister the power to amend orvary the 1st Schedule. In view of the fact that an excessive number of publicholidays affected the productivity of the country, the Government decided on therecommendation of a committee to eliminate holidays for Maha Sivarathri. Hadji.National Heroes Day and Bandaranaike Commemoration Day. However, in.•esponse to subsequent representations the Government declared MahaSivarathri and Hadji as "Special Holidays for the followers of Hinduism and Islamrespectively".
The decision of the Government did not infringe the petitioners right tofreedom of worship under Article 14(l)(e) of the Constitution. The essence of thefreedom of worship is that the State (or even a private employer) must not prohibitor interfere with the citizen's practice of his religion, but is not bound to providefacilities for such practice.
There is also no infringement of the petitioner's right to equality under Article12(1) of the Constitution. Given its role and responsibilities in managing thenational economy, the decision to reduce the number of holidays was legitimate.The Government is entitled to take into consideration a variety of matters indetermining public holidays. The discretion is not fettered by some rigid principle.
APPLICATION for relief for infringement of fundamental rights.
S. N. Vijithsinghe with Anton Punethanayagam for petitioner.
Kolitha Dharmawardana, D. S. G. for respondents.
Cur. adv. vutt.
February 24, 1997.
Under the Holidays Act, No. 17 of 1965, Sundays had ceased tobe public holidays and the four Poya days were the weekly holidays.The Holidays Act, No. 19 of 1971, repealed that Act, and declaredevery full moon Poya day and every Sunday to be a public holiday. Inaddition the following 14 days specified in the 1st Schedule were alsomade public holidays:
The Tamil Thai-Pongal DayMilad-un-Nabi (Holy Prophet’s Birthday)
National DayMaha Sivarathri Day
The Day Prior to the Sinhala and Tamil New Year's DayThe Sinhala and Tamil New Year’s DayGood FridayMay Day
The Day following the Wesak Full Moon Poya DayNational Heroes DayId-UI-Fitr (Ramazan Festival)
Id-UI-Allah (Haj Festival Day)
Deepawali Festival DayChristmas Day
Section 4 gave the Minister the power to amend or vary the1st Schedule.
The 3rd respondent, Secretary to the Ministry of Public
Administration, issued a notice dated 6.8.96 setting out the public
holidays approved by the 1st respondent, the Minister, for 1997-23
in number, including the 12 full moon Poya days. These did not
include Maha Sivarathri and Hadji. Claiming that this was in violation
of their fundamental rights, the petitioner in this application, and the
petitioner in SC Application No 624/96, sought the restoration of
Maha Sivarathri and Hadji as public holidays.
e It is not in dispute that from 1971 to 1996 Maha Sivarathri andHadji had been public holidays although not mercantile holidays.
According to the 3rd respondent, representations had been madeto the Government by the Ceylon National Chamber of Industries thatthe number of public holidays were excessive and that this affectedthe productivity of the country, thus reducing its competitiveadvantage. That Chamber urged that two special bank holidays on30th June and 31st December be eliminated, as well as the followingfive holidays, all of which were not mercantile holidays:
Maha SivarathriRamazan FestivalGood FridayHadji FestivalDeepawali
The 3rd respondent averred that it was upon the recommendationsof a committee appointed to consider the matter that the Governmentdecided to curtail the number of public holidays, by eliminatingholidays for Maha Sivarathri, Hadji, National Heroes Day andBandaranaike Commemoration Day. That was done by the noticedated 6.8.96. Whether that constituted a proper exercise of the•powers conferred by section 4 was not argued.
However, consequent upon representations made by variouspersons and organisations, the Government later declared MahaSivarathri and Hadji as "special holidays for the followers of Hinduismand Islam respectively".
In his application the petitioner stated that “from childhoodonwards up to the years 1996, he could observe Maha Sivarathri day,fasting, watch night praying and following religious recitals [rituals?]since that day had been declared a public holiday.” In his writtensubmissions the petitioner added that “on the Maha Sivarathri,bathing, fasting, watch night praying is observed with hour-to-hourmass before the holy fire to redeem the sins committed by theindividual before the Hindu Gods, [which] are part of the religion forwhich a holiday is needed"; that "… religion and religious practicesobtained by both doctrine and tradition have played a large part inthe lives of our people, so much so that it has become difficult to saywhat is religion and what is religious practice, as they are bothintermixed. Sometimes religious practice is taken by the bulk of oi.jrpeople as religious faith"; that this was applicable to Maha Sivarathri
day observances; and that accordingly “it is important to have apublic holiday to manifest (his) religion or belief" on that day.
The petitioner contended that “his religious consciousness andbelief is going to be imminently infringed/is infringed by the executiveor administrative actions of the respondents since Maha Sivarathri isnot going to be a public holiday so that the petitioner would not beable to observe these religious recitals [rituals He further claimedthat “different religious groups normally get together to observe themanifestation of the religion or belief of the other since that day is apublic holiday", and that “this is essential in order to promoteinterreligious harmony for a country wounded by war”. He alleged theviolation of Articles 10 and 14(l)(e).
The petitioner’s next contention was that the sudden denial of theholiday was “against the legitimate expectations of the petitioner andis totally unilateral, unreasonable, arbitrary, unjustified, without properprocedure, ultra vires, capricious, wrong classification, not for anygood reason but for some collateral purpose and thus denies theeequal opportunity and violates the rights guaranteed under Article12(1) of the Constitution”; and that the “Hindu religion is professed by[a] small minority compared to the total population and not declaringMaha Sivarathri as a holiday and reducing the holidays only fromminority religions amounts to a violation of the rights guaranteed byArticle 12(2) of the Constitution".
Leave to proceed was sought in respect of the alleged infringe-ment of Articles 10, 12(1), 12(2) and 14(1)(e), but was granted ofily inrespect of Articles 12(1) an 14(1)(e).
FREEDOM OF WORSHIP: ARTICLE 14(1)(e)
The petitioner's contention that the withdrawal of the MahaSivarathri public holiday infringed his fundamental right of freedom ofworship is untenable. Although his affidavit does not satisfy me onthat point, I will nevertheless assume that the religious observances,practices, rites and rituals (which I will collectively refer to ascReligious observances") which he described could not be dulyperformed on that day unless some part of the normal working hours
was also used. If the State, or any employer for that matter, does notgrant a holiday on a day of religious significance does it mean that anemployee’s freedom of worship is impaired? To answer that questionin the affirmative would be to blur the distinction between notfacilitating the exercise of a fundamental right, and infringing it. Inmy view, the obligation created by Article 14(1)(e) is to allow thecitizen to practice his religion, but not to give him additional facilitiesor privileges which would make it easier for him to do so. While theState must not prevent or impede religious observances, it need notgo further, and provide a holiday or other facilities for suchobservances. An employee has various leave entitlements which areintended for his personal, family, social and other needs, and this hemay use for religious observances on days which are not holidays;while the unreasonable denial of such leave may well amount to aninfringement of Article 14(1 )(e), the refusal of holidays, privileges andconcessions would not; thus while Article 14(1 )(e) may compel thegrant of leave requested by an employee in order to perform hisreligious observances at a distant shrine or place of worship, therefusal by the State to provide facilities, (such as a paid holiday, freeyansport, or travelling and subsistence allowances) to make thoseobservances easier or more convenient would not constitute aninfringement. To take another example, while that Article might entitleChristians to obtain and use wine for the rite of communion, in whichevent the prohibition of such use would be an infringement, yet thatArticle certainly does not compel the State to provide wine free foruse by Christians for that purpose. The essence of the freedom ofworship is that the State (or even a private employer) must notprohibit or interfere with the citizen’s practice of his religion, but is notbound to extend patronage or provide facilities for such practice. Theposition is no different in regard to other freedoms; while the freedomof speech may entitle a citizen to publish a newspaper or to operatea radio station, it does not entitle him to a grant of State land or fundsfor his enterprise; and the freedom of associations may entitlecitizens to establish a company, society or union, but not to demandfrom the State a building for its activities.
that devout citizens, from among these, will be able to identify manyother days of religious significance, on which the performance ofreligious observances are most desirable, and would be greatlyfacilitated by the grant of paid holidays. Likewise, Sri Lankaadherents of other religions, however small in number, will be able toidentify days of significance to themselves, and will make the sameplea, claiming that otherwise their freedom of worship will beimpaired, If that is accepted there will be many more holidays thanworking days, and we will then need, not a Holidays Act, but an Actto identify and declare the few remaining working days. Religion isessentially a private matter, and Article 14(1)(e) does not entitle acitizen to State patronage for the practice of his religion. Of course, ifthe State does grant patronage to one religion (except as permittedby Article 9), the question of equal treatment may arise under Article12, and to that I will refer later.
The petitioner's contention must fail on the facts in any event,because even if Article 14(l)(e) did require a holiday for MahaSivarathri the Government had already granted Hindus a specialholiday on that day.
These conclusions make it unnecessary to consider the petitioner’sother contentions, but since they were pressed with somevehemence, I will deal with them briefly.
Learned Counsel submitted that because Maha Sivarathri was nota holiday for persons of other religions, such persons could not joinwith the petitioner in the performance of his religious observances onthat day. Stressing the words “by himself or in associationtwithothers" in Article 14(1)(e), he argued that “others" included personsof other religions; that it was the practice in many places for personsof other religions to join with Hindus in religious observances onMaha Sivarathri day; that it was only such inter-religious practiceswhich could bring about racial and religious amity in a multi-racialand multi-religious nation, and thus heal the wounds of war; and thatthis Court should adopt a liberal interpretation to achieve such aresult.
That approach to interpretation does not commend itself to me.the jurisdiction of this Court is defined in the Constitutions, and
cannot be expanded, directly or indirectly, by the Court under theguise of interpretation to give effect to policies and practices which itconsiders conducive to nationally desirable objectives, whetherpolitical, economic, religious, cultural, social or otherwise. Article14(1)(e) cannot be given an artificial or extended meaning, which itslanguage, considered in the context of the Constitution as a whole,does not permit, for a collateral purpose of that kind.
. The phrase stressed by learned Counsel only gives effect to the“community” aspect of religion and religious freedom: althoughreligion is a "private” matter vis-a-vis the State, yet the practice ofreligion has always had a “community” dimension as well, becausereligious observances are often performed together with co-religionists. The freedom which the petitioner has is “in public or inprivate, to manifest his religion or belief in worship, observance,practice and teaching”; and that he has the right to do both byhimself, and “in association with others”. The lack of a public holidaywill not impair his ability to do so “by himself"; and it will not affect themanifestation of "his" religion or belief in association with his co-religionists. As for persons of other religions, the petitioner has failedto establish how or why their non-participation in his religiousobservances, would affect the manifestation of “his" religion or belief.
I am not prepared to presume, in the absence of clear pleadings andproof, that the petitioner cannot properly perform his religiousobservances on Maha Sivarathri Day without the participation of suchothers. Further, even if it be true that others customarily do participatetherein, there is nothing to show that this is for anything other thansocial reasons: there is no suggestion that this was on account ofanybody's religious beliefs. And even if I were to assume that theparticipation of others was for religious reasons, yet that would beonly to manifest their religion or belief – not the petitioner’s. And sotheir non-participation, at best, could affect only their religion orbelief, and cannot give rise to a cause of compliant by the petitionerthat his own freedom of worship was impaired.
RIGHT TO EQUALITY; ARTICLE 12(1)* The Government was faced with a situation in which there were»alarge number of non-working days: Saturdays and Sundays, 12 full#moon Poya days, and 15 public holidays, totalling 131 days (not taking ^
into account that some of these would overlap). Assuming an averageannual leave entitlement of 42 days, this meant, that an employeewould work for just over half the year. Given its role and responsibilitiesin managing the national economy, it was legitimate and justifiable forthe Government to form the opinion that the number of holidays shouldbe reduced by four. And, indeed, the impact of that reduction wassoftened by granting two special holidays. Even without such specialholidays, in my view, it was within the discretion of the Government tohave made an even more drastic reduction, on the lines of therecommendation of the Ceylon National Chamber of Industries.
It is quite clear, therefore, that the Government did not intend todiscriminate against followers of Hinduism and Islam. The questionthen is, was there nevertheless unequal treatment vis-a-vis followersof other religions whose holidays were not reduced?
In determining public holidays it is not religion and religioussignificance alone that must be taken into account. Thus in today’sworld it can hardly be said that Sunday is a public holiday, solely ormainly, because of its significance to Christians. The demands atinternational finance, trade and business now make it imperative thatthe weekly holiday, so necessary for the health and well-being ofemployees, should be Sunday and not any other day. Holidays arealso granted on days which are of national or general significance -such as National Day, May Day, and Sinhala and Tamil New Year.Days of religious significance constitute a third category, in regard towhich the Government has a discretion. It cannot be said that thatdiscretion is fettered by some rigid principle – as, for instancy, thatsuch holidays should be granted on the basis of religiousproportionality, or that each religion must have the same number ofholidays as every other religion, or that only religions which have morethan a specified number of followers should be taken into account.However, some consideration of all these factors would be relevant.
It is the Holidays Act which has declared Sundays and the fullmoon Poya days to be public holidays, and this Court has nojurisdiction to review statutory provisions. Consequently, any questionftof unequal treatment arises in a limited context: there were elevenpublic holidays of religious significance, three for Hindus (Thai-
Pongal Maha Sivarathri, and Deepavali), three for Muslims.(HolyProphet’s Birthday, Ramazan Festival, and Hadji Festival Day), two forChristians (Good Friday and Christmas Day) and one for Buddhists(the day following Wesak).
Learned Counsel for the Petitioner argued that the two days inquestion were holidays by virtue of the statute, and that it was only bya statutory amendment that they could be eliminated. But thatcontention overlooks the power conferred on the Minister, by section4, to vary the 1st Schedule. He also submitted that-equal treatmentrequired that a similar reduction be made from the holidays enjoyedby the majority. If, and to the extent that, followers of Hinduism andIslam needed a holiday on the two days in question, that need wassatisfied by the grant of special holidays. However I prefer to basemy decision on this point on the fact that the Government wasentitled to take a variety of matters into consideration in determiningpublic holidays, and the material adduced by the petitioner is quiteinsufficient to show that the elimination of these two holidays_was__unreasonable, arbitrary, capricious or for an improper purpose.Article 12(1) has not been infringed.
The petitioner's application therefore fails. I make no order forcosts.
WIJETUNGA, J. -1 agree.
DR. GUNAWARDANA, J. – I agree.
JEEVAKARAN v. RATNASIRI WICKREMANAYAKE AND OTHERS