LEADER PUBLICATIONS (PVT) LTD.
v.ARIYA RUBASINGHE, DIRECTOR OF INFORMATION ANDCOMPETENT AUTHORITY AND OTHERS
SUPREME COURTAMERASINGHE, J.
DHEERARATNE. J. ANDISMAIL, J.
SC (FR) No. 362/200019lh JUNE, 2000.
Fundamental rights – Prohibition of the printing and publication of anewspaper – Taking possession of the printing press ■ Regulation 14of Emergency Regulations – Articles 12(1), 14(l)(a) and 14(l)(g) ofthe Constitution – Validity of the appointment of Competent Authority -Regulation 2 of Emergency Regulations.
The petitioner is a Company incorporated with the object of carrying onbusiness as a publisher, printer and proprietor of newspapers.
On 3rd May, 2000 the Secretaiy to the President announced that in termsof Regulation 2 of the Emergency (Miscellaneous Provisions and Powers)Regulation No. 1 of 2000 read with Regulation 14(1) of that Regulation,the President had appointed the 1st respondent (Ariya Rubasinghe) to bethe Competent Authority “for the aforesaid regulation.”
On 22nd May, 2000 the 1’* respondent purporting to act in terms ofRegulation 14(2) b(i) by an order in writing prohibited the petitioner fromprinting, publishing and distributing its newspaper “Sunday Leader” orany newspaper for a period of six months from the date of the order.Further by an order purporting to be under regulation 14(2)(b)(ii) hedirected the Inspector General of Police to take possession of thepetitioner’s printing press and its premises. The petitioner complainedthat the said orders were violative of his rights under Articles 12(1),14( l)(a) and 14( l)(g) of the Constitution. At the hearing of the application,the validity of the lsl respondent's appointment as Competent Authoritywas taken up as a preliminary matter.
Regulation 14(2) in terms of which the lsl respondent was appointed asCompetent Authority provides inter alia :
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“Competent Authority" in relation to any emergency regulation means,unless otherwise provided, for in such regulation, any person appointed,by name, or by office, by the President to be a Competent Authority forthe purpose of such regulation."
Section 6 of the Public Security Ordinance requires the authoritiesor persons empowered to make orders and rules to be empoweredby emergency regulations. There must be a substantive enactmentin that regard. The words in the definition are merely descriptiveand had no substantive effect of empowering the authority or
1 person for the purposes of regulation 14.
Per Amerasinghe. J.
“Benion (Op. Cit. p. 436) says “It is a drafting error (less frequent nowthan formerly) to incorporate a substantive enactment in a definition. Adefinition is not expected to have operative effect as an independentenactment. If it is worded in that way, the Courts will tend to construeit restrictively and confine it to the proper function of a definition."
Article 35 of the Constitution does not bar the challenge to theappointment of the Competent Authority.
Per Amerasinghe. J.
“This is not a proceeding against the President in respect of anythingdone or omitted to be done by the President. What is in issue, is thevalidity of Mr. Rubasinghe’s orders.”
The 1st respondent was not entitled to make the order he did, for hewas not empowered by the regulation to do so within the meaningof section 6 of the Public Security Ordinance. There is no regulationstating who the “Competent Authority" is for the purposes ofregulation 14.
The 1st respondent had no power or authority to act under regulation14 : and the document dated 22nd May, 2000 addressed to theLeader Publications (Pvt) Ltd. by the 1st respondent, is a nullity andof no force or avail in law.
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cases referred to :
Pargan Singh v. Secretary of State for the Home Department (1992)1 W. L. R. 1052 at 1056.
Blackpool Corporation v. Locker (1948) 1 K. B. 349.
Wakejield Board of Health v. West Riding & Grimsby Railway Co.(1865) L R 1 QB 84 at 86.
APPLICATION for relief for infringement of fundamental rights.
Romesh de Silva, P. C. with Palitha Kumarasinghe and Hiran de Alwisinstructed by G. G. Arulpragasam for petitioner.
K. C. Kamalasabeyson, P. C., A. G. with Saleem Marsoof P. C. A. S. G.,Uditha Ek/alahewa, S. C. and Harsha Fernando, S. C.,for 1st, 5th, 6lh and7th respondents.
Wyeyadasa Rajapaksha with Kapila Liyanage for 2nd respondent.
P. A. D. Samarasekera, P. C. with Keerthi Sri Gwxawardene for 4"’respondent.
Cur. adv. uult.
June 30, 2000AMERASINGHE. J.
The petitioner is a company. It was incorporated with theobject of carrying on business as a publisher, printer andproprietor of newspapers. In 1994, the petitioner commencedpublication of The Sunday Leader. In 1999, the petitionercommenced publication of the Irida Peramuna.
The President of the Republic, acting under thepowers vested in the President by the Public SecurityOrdinance No. 25 of 1947 (as amended), made the Emergency(Miscellaneous Provisions and Powers) Regulations No. 1 of
(See Gazette Extraordinary 1130/8 of May 03, 2000).Regulation 14 of the said regulations provided for the “control
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of publication." Regulation No. 1 of 2000 was amended bythe President on 10th May 2000. (See Gazette Extraordinary1131/20 of May 10, 2000) by the substitution of a newregulation 14.
Regulation 14 (1), among other things, provides that a"Competent Authority” may take such measures or give suchdirections as he may consider necessary for preventing orrestricting the publication of matters which would or mightbe prejudicial to the interests of national security or thepreservation of public order. The "Competent Authority" coulddirect the submission of material intended to be published, tobe submitted to him. Regulation 14 (2) (a) states as follows:Every person who contravenes the provisions of any directiongiven under paragraph (1) of this regulation shall be guilty ofan offence; and where any person is convicted of such anoffence by reason of his having published a newspaper …. thePresident may by order direct that during such period as maybe specified in that order, that person shall not publish anynewspaper in Sri Lanka . . .” Regulation 14 (2) (b) states asfollows: "Without prejudice to the provisions of sub-paragraph(a), where there is a contravention of the provisions of anydirection given under paragraph (1) of this regulation andsuch contravention is in respect of any publication in anynewspaper . . ., the Competent Authority may, after issuingone or more warnings as he may consider reasonable, order –
that no person shall print, publish or distribute or in anyway be concerned in the printing, publicationor distribution of such newspaper … for such period asmay be specified in the order; or
that the printing press, computer or equipment used forthe publication of such newspaper …. for such period asis specified in the order, not be used for any purposeswhatsoever or for any purpose as is specified in the order,and such order may authorize any person specified therein
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to take such steps (including the taking possession of anyprinting press, computer or equipment with respect towhich the order is made or of any premises in which it iscontained or of any part of such printing press, computeror equipment or premises) as appear to the person soauthorized] to be necessary for seeking compliance withthe order.”
On 03 May 2000, the Secretary to the President madethe following notification under the caption ‘The Emergency(Miscellaneous Provisions and Powers) Regulation No. 1 of2000 Appointment of Competent Authority under Regulation14 (1); “It is hereby notified that in terms of Regulation 2 of theEmergency (Miscellaneous Provisions and Powers) RegulationNo. 1 of 2000, read with Regulation 14 (1) of that regulation,the President has appointed Mr. Ariya Rubasinghe, Director ofInformation, to be the Competent Authority for the aforesaidregulation." (See Gazette Extraordinary 1130/23 of May06, 2000).
On 08 May 2000, Mr. Ariya Rubasinghe, signingthe document as "Director of Information and CompetentAuthority”, sent the Editor of The Sunday Leader a copy ofGazette Extraordinary 1130 of 03 May 2000 and issuedthe following "directive": “I being the Competent Authorityappointed under section 14 (1) of the said regulation herebyrequire you to strictly adhere to tire provisions of section 14 ofthe said regulation and to obtain my prior approval for anysuch publication or transmission (sic).” On May 09, 2000, theEditor replied as follows: “I write with reference to your letter. . . dated 08 May 2000 informing me that you have beenappointed a Competent Authority under section 14(1) of theregulations cited above. You have however not intimated whenyour appointment was gazetted. I write to inform you that TheSunday Leader will adhere to the provisions of section 14 and14 (1) as requested by you.”
On 09 May 2000 Mr. Rubasinghe wrote to the Editor ofThe Sunday Leader alleging that regulation 14 (1) had been
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violated. He stated, “I, being the Competent Authorityappointed under, this regulation, do hereby inform you thatany such future violation of this regulation will compel me totake appropriate action against you and your newspaper."Another warning was issued on 19 May 2000. On 22 May2000, Mr. Rubasinghe, wrote to the petitioner as follows:
“Acting under the powers vested with the CompetentAuthority under the regulation 14(2) (b)… 1 Ariya Rubasinghethe Competent Authority do hereby inform you that the newsarticle appearing in The Sunday Leader … of 21st May 2000. . . “War in fantasy land – Palaly is not under attack” is apublication made in contravention of the directives givenunder the regulation 14(1) particularly with reference to thematters relating to the operations of security forces and thatthe said article has been published without submitting thesame to me for prior approval as required by my directivesdated 8th May 2000 and further that [the] said news itemis prejudicial to the interest of national security and thepreservation of public order.
Therefore acting under the powers vested with me byregulation 14 (2) (b) (i) I, hereby order that from 22nd May 2000to 21st November 2000 for the period of six months you areprohibited from printing, publishing and distributing . . . thesaid The Sunday Leader newspaper or any newspaper.
Further acting under the powers vested with me byregulation 14(2) (b) (ii),I, hereby order that from 22nd May 2000to 21st November 2000 for the period of six months, theprinting press located at Leader Publications (Pvt.) Ltd.,No. 24, Katukurunduwatte Road, Ratmalana, shall not beused for any printing purpose whatsoever and for the purposeof carrying out this order the Inspector General of Police,Sri Lanka is hereby authorized by me to take such steps forsecuring compliance with the order including the taking of thepossession of the said printing press and its premises …"
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On 31 May 2000, the petitioner filed an application inthis Court alleging the violation of its fundamental rightsguaranteed by the Constitution. An amended application wasfiled on 05 June 2000. Leave to proceed was granted for thealleged infringement of Articles 12 (1), 14 (1) (a) and 14 (1) (g)of the Constitution. The application for interim relief wasrefused and the matter was listed for hearing on 19 June 2000.
After learned counsel for the petitioner had outlined hiscase, he commenced his submissions on the validity of theorder made by the 1st respondent. When learned counsel forthe petitioner referred to the order of the 1st respondent,purporting to act under the provisions of regulation 14 (2) (b),we enquired whether the 1st respondent had the power tomake the decisions he did, since it did not appear fromthe Emergency (Miscellaneous Provisions and Powers)Regulation No. 1 of 2000 that he had been appointed underthe provisions of the said Emergency Regulation to be a‘Competent Authority’ for the purposes of regulation 14.
Although the Attorney General did make certain oralsubmissions, he said he was taken by surprise and requestedtime to consider the matter and make written submissions. Wewere at a loss to understand why the respondents, includingthe Attorney General, were in such a state of unpreparednesson that matter, for, as we have seen, when the Editor ofThe Sunday Leader was sent a copy of the Gazette notificationby Mr. Rubasinghe who had claimed to be the CompetentAuthority for the purposes of regulation 14, the Editor hadraised the matter of his appointment. Again, in the appeal ofthe Managing Director of the petitioner to the Chairman ofthe Advisory Committee on 24 May 2000, it was stated that“Mr. Rubasinghe has purported to act in terms of his purportedpowers purportedly vested in him by regulation 14 . . .". TheAdvisory Committee was requested to "set aside the purportedorder . . inter alia, on the ground that it was "ultra vires thepurported powers of Mr. Rubasinghe." (The emphasis is mine).In paragraph 41 of its petition, the petitioner states that it is
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“unaware whether the 1st respondent has been appointed as aCompetent Authority . . With regard to the reliefs sought inthe petition, the petitioner, inter alicL prays as follows:“(e) declare that the lsl respondent has no power or authorityto act as a Competent Authority under Regulation 14 . . .; (f)declare that the order contained in the letter dated 22nd May2000 made by the [1st] respondent, prohibiting the printing,publication and distributing of the petitioners newspapersand prohibiting the petitioner from using its printing press isnull and void and/or bad in law.” The question of jurisdiction,in the sense of the lsl respondent’s power to decide and makeorders on matters referred to in regulation 14, was in issue,despite his confident assertion that he had been the dulyappointed ‘Competent Authority’ for the purposes for whichregulation 14 was made. It was certainly not, as the AttorneyGeneral said and learned Counsel for the second respondentsuggested, a question “raised by the court for consideration":we merely drew attention to the matter and clarified the issueto be decided. We stated that if the issue of the competenceof the 1st respondent was decided against him, the matterbefore us would be at an end. On the other hand, if we held infavour of the respondents' submissions on the question ofcompetence, the matter would be resumed for argument.
We wanted assistance from counsel to enable us to decidethe matter. In response to our question. How much time doyouwant?, the Attorney General requested a day's time to makewritten submissions. This was granted to him as well as to allother counsel. The Attorney General and learned counsel forthe 2nd respondent filed written submissions. We took time forconsideration of the submissions of counsel.
THE ATTORNEY GENERAL'S SUBMISSIONS
The Attorney General's oral and written submissions willbe considered together. The Attorney General submitted thatalthough the lsl respondent had not in fact been appointed a'Competent Authority' by the regulations, he had neverthelessbeen duly appointed. Regulation 2 (1), states as follows:
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“ ‘Competent Authority’ in relation to any EmergencyRegulation means, unless otherwise provided for in suchregulation, any person appointed, by name, or by office, by thePresident to be a Competent Authority for the purpose of suchregulation." Regulation 5(1) provides for the appointment ofany person as a Competent Authority for the purposes of anyemergency regulation. This is an “enabling provision” andcannot be “diluted” by the rest of the provisions of thatregulation. Therefore, the appoinment has been validly madefor the purposes of regulation 14. Even in the absence ofspecific reference in regulation 5 for the appointment ofthe Competent Authority by the President, yet the saidappointment by necessary implication would be valid asthe words “Competent Authority" contemplated in regulation5 “would attract the interpretation in regulation 2 (1).”Regulation 2(1) makes it clear that the “Competent Authority”is the person appointed by name or office by the President.Whilst regulation 5 enables the appointment of a CompetentAuthority, the mode of appointment is set down in regulation2,” although this may be "inelegant drafting.” In the Gazettenotification published on May 06, 2000, it was stated that the1st respondent had been appointed a‘Competent Authority’ forthe purposes of regulation 14 (1). In any event, in terms ofsection 6 of the Public Security Ordinance, the only personwho could have appointed the Competent Authority isthe President. "Where the Emergency Regulation makes noreference to the appointment of a particular authority, the onlyperson who could make such appointment is the Presidentand such appointment when made derives its validity throughsection 6.” Furthermore, Article 4 of the Constitution providesthat the executive power of the President, including thedefence of Sri lanka, shall be exercised by the President of theRepublic. Executive power “necessarily includes the power ofappointment.” The Competent Authority contemplated byregulation 14 “is not an institution or body requiring to beformally constituted. This regulation by itself enables suchperson to be appointed in order to exercise powers andfunctions specified therein.” Regulation 14 is “self contained to
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enable such Competent Authority to act without any referencebeing made to such person either in regulation 2 or regulation5 provided he is appointed by the President.” Therefore, “evenassuming but not conceding that there is no empoweringprovision in the Regulation in relation to a Competent Authority,the appointment of a Competent Authority for the purposes ofRegulation 14 (1) is valid and in accordance with the saidRegulation.” "Having regard to the nature and scope of theEmergency Regulations and the circumstances in which theywere made, as set out in paragraph 19 of the affidavit of the 1strespondent, such regulations must be interpreted so as togive proper and effectual effect to the purpose for which theywere made . . . Even when there is an omission, a Regulationmust be interpreted to give effect to the purpose for which itwas made.”
MY VIEWS ON THE ATTORNEY GENERAL S SUBMISSIONS
The Attorney General correctly submitted that theexecutive power of the people, including the defence ofSri Lanka, is, by Article 4 (b) of the Constitution, vested inthe President. I agree that the executive power extends tothe power of making appointments. However, it does notfollow that the President may do as she or he may will, forappointments must be made in conformity with the provisionsof the law. The executive power of the President includes thedefence of Sri Lanka. But emergency powers derive fromParliament by delegation. The executive has no pouvoirreglementaire, as it has in France. Under the Constitution, thelegislative power of the people is exercised by Parliament. ThePresident has no primaiy legislative power. However, the lawmaking power is delegated by Parliament to the President inrespect of the making of such emergency regulations as appearto her or him to be necessary or expedient in the interests ofpublic security and the preservation of public order and thesuppression of mutiny, riot or civil commotion, or for themaintenance of supplies and sevices essential to the life of thecommunity. (Section 5 Public Security Act No. 25 of 1947 as
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amended). Article 155 (1) of the Constitution states the PublicSecurity Ordinance shall be deemed to be a law enacted byParliament. Ordinarily, delegated powers should be exercisedby the authority upon whom it is conferred, and by no one else.Delegatus non potest delegare, unless a contrary intention isexpressed. Section 6 of the Public Security Ordinance permitsdelegation by the President. Section 6 states as follows:“Emergency regulations may provide for empowering suchauthorities or persons as may be specified in the regulationsto make orders and rules for any of the purposes forwhich such regulations are authorized by this Ordinance to bemade, and may contain such incidental and supplementaryprovisions as appear to the President to be necessary orexpedient for the purposes of the regulations.” The sectionconfers a power which if exercised is coupled with a duty.Parliament has intended to leave to the judgment of thePresident the question whether or not to exercise the power toempower authorities or persons at all; but where the Presidentdecides to exercise the power, the President must makeemergency regulations empowering such authorities orpersons as may be specified in the regulations to make ordersand rules for any of the purposes for which such regulationsare authorized by the Public Security Ordinance to be made.There is a duty to exercise such delegated power even thoughit has been conferred in discretionary terms. In Pargan Singhv. Secretary oj State for the Home Departmentwhere theImmigration Act 1971 s. 18(1) says that the Secretary of State‘may by regulations provide’ for notice to be given of anappealable decision, the House of Lords held that the true legalmeaning of this enactment was that such regulations mustbe made. See also Francis Bennion, Statutory Interpretation,3rd ed. 1997, p. 182.
In the matter before this Court, the President did makeemergency regulations empowering certain authorities orpersons specified in such regulations to make orders for thevarious purposes of the regulations made. Thus with regard torequisitioning and acquisition of property, regulation 8
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states that "a Competent Authority” has the power to docertain things. Regulation 8(10) states that for the purpose ofregulation 8 “Competent Authority" includes six specifiedclasses of persons. Additionally, regulations 8 (7) and (8)confer powers with regard to the requisitioning of immovableproperty on the Secretary to the Ministry of Defence.Regulation 9 confers powers with regard to the requisitioningof vehicles on a "Competent Authority". Regulation 9 (5)specifies who “Competent Authority” means for the purposesof regulation 9. Regulation 10 A provides for the appointmentby the President of a Commissioner-General of EssentialSevices for the purposes of the regulation . . . Regulation 10 Bprovides for the appointment by the President of a Commissionerof Civil Security for the purposes of the regulations.With regard to the prevention of the entry of personsinto restricted places, regulation 1 1 confers powers on a“Competent Authority". Regulation 1 1 (3) specifies who“Competent Authority" means for the purposes of regulation
With regard to the prohibition of meetings and processions(regulation 12) and the imposition of curfew (regulation 13)the President is designated as the relevant authority. Withregard to the supervision, search and detention of persons,regulations 16 and 17 confer powers on the Secretary to theMinistry of Defence. With regard to the power of search, seizurearrest and detention, regulation 18 (1) confers powers oncertain specified persons. Regulation 20 B provides for theappointment of a Commissioner-General of Rehabilitationby the President of the purposes of that regulation. Theseprovisions recognize the fact that when Parliament in section6 of the Public Security Ordinance enabled the President toempower au thorities or persons to do certain things au thorizedby the Ordinance, such empowerment was conditional: theauthorities or persons empowered to make orders and rules forany of the purposes for which any regulation was made mustbe specified in emergency regulations. If Parliament has foundit necessary in order to meet the severe conditions of a time toauthorize by indirect means the taking of the extraordinary
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measures set out in regulation 14 at the command of a selectedauthority or person, plain justice at least requires that thepublic should know not only what precisely is the authorityconferred, so that it may be ensured that the exercise is not inexcess of the power Parliament has conferred, but also that theauthority or person designated to take such measures shouldbe identified and duly empowered in accordance with aprescribed mode of appointment. Publicity is essential. See theobservations in Blackpool Corporation u. Locker121
In the same delegated legislation in which the regulationsmentioned above relating to the appointment of variousauthorities and persons to make orders, namely, the Emergency(Miscellaneous Provision and Powers) Regulation No. 1 of2000as amended, regulation 14 deals with “Control of Publications”.There are several authorities or persons empowered toexercise the powers conferred by regulation 14. It is stated inregulation 14 (2) (a) that where there has been a conviction ofa person for an offence of having published a newspaper incontravention of regulation 14 (1), the President may by orderdirect that during such period as maybe specified in that orderthat person shall not publish any newspaper in Sri Lanka. Interms of regulation 14 (6), the President may direct that anorder made under regulation 14 be suspended or revoked bythe President. Regulation 14 (1) refers to a “CompetentAuthority" who may also make decisions and take variousactions with regard to the “control of publications," includingthe authorization of any person specified in the order of theCompetent Authority to take such steps as appear to thepersons so authorized to be necessary for compliance with theorder. As we have seen, in the matter before us, the personauthorized was the Inspector-General of Police. I am notconsidering or commenting upon the acts or omissions ofMr. Rubasinghe. I do note, however, that whereas the Presidenthas confined action on the part of the President to cases wherethere has been conviction for an offence, regulation 14 (2) (b)enables the "Competent Authority… after issuing one or morewarnings as he may consider reasonable …" to take the
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measures set out in regulation 14 which, as we have seen,far exceed those measures the President may take underregulation 14 (2) (a).
We are not at this stage concerned with the question of'warnings’ issued by the Is' respondent and their validity orsignificance. Nor are we concerned with the l81 respondent'sinterpretation of a cartoon or articles referred to in paragraph19 of the 181 respondent’s affidavit as suggested by the AttorneyGeneral to be indicative of the purpose for which the regulationswere made, namely to deal with a “serious crisis" confrontingthe countiy. What is in issue is not the existence ofcircumstances warranting the bringing into operation Part IIof the Public Security Ordinance. The question is whether the1st respondent was by law entitled to make the orders he made,even granting that there was a “serious crisis."
I am of the view that the 181 respondent was not entitled tomake the orders he did, for he was not empowered by theregulations to do so within the meaning of section 6 of thePublic Security Ordinance. There is no regulation stating whothe “Competent Authority” is for the purposes of regulation 14.
Regulation 14 may be "self contained". But, who is theauthority or persons as specified in the regulations to makeorders under regulation 14? No one. The delegation of powerby the President to a Competent Authority was effected byregulation 14. But the means chosen for the appointment, asfar as the Competent Authority for the purposes of regulation14 was concerned, namely by a notification published in theGazette was not an effective exercise of the delegated powerconferred by Parliament by section 6 of the Public SecurityOrdinance. Regulation 5 is no doubt, as the Attorney Generalsaid, an “enabling provision"; but what it enables is theappointment of competent authorities for the whole or any partof Sri Lanka and for the appointment of several competentauthorities for the purposes of any regulation or for anyspecified area or place. Reliance was placed upon section 2(1)
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of the regulations which defines “Competent Authority”. TheGazette notification making the purported appointment toorefers to regulation 2 (1). Section 6 of the Public SecurityOrdinance requires the authorities or persons empowered to,to make orders and rules to be empowered by emergencyregulations. There must be a substantive enactment in thatregard. The words in the definition are merely descriptive andhad no substantive effect of empowering any authority orperson for the purposes of regulation 14. See Wakefield. Board,of Health v. West Riding & Grimsby Railway Co.,131.
Bennion (op.cit.P. 436) says: “It is a drafting error (lessfrequent now than formerly) to incorporate a substantiveenactment in a definition. A definition is not expected to haveoperative effect as an independent enactment. If it is wordedin that way, the Courts will tend to construe it restrictively andconfine it to the proper function of a definition."
If the definition of “Competent Authority" in regulation2(1) was drafted with the intention of having a substantiveeffect it must be regarded as a drafting error and construedrestrictively and confined to its limited function of a definition.Parliament has reposed trust and confidence in the Presidentand since the President is authorized to make binding, generallaw through emergency regulations, all conditions imposed byParliament, including those set out in section 6 of the PublicSecurity Ordinance where Parliament has, in an exceptionalinstance, included a power of sub-delegation to authoritiesand persons selected by the President, must be strictly observed,especially since the rights and freedoms of citizens under theordinary laws may be disregarded. Indeed, the veiy purpose ofemergency regulations is to suspend the operation of the lawsof the land for the sake of achieving the purposes specified byParliament in the Public Security Ordinance.
Moreover, the failure to identify the Competent Authorityfor the purpose of regulation 14 falls outside the usual,operative, delegated – legislative scheme of Parliament: As we
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have seen, the "Competent Authority" and other person orauthority for the purpose of each regulation in the Emergency(Miscellaneous Provisions and Powers) Regulation No. 1 of2000 have been identified except in the one case of the“Competent Authority” for the purposes of regulation 14. itmight also be pointed out that in several Emergency (Restrictionon Publication and Transmission of Sensitive MilitaryInformation) Regulations, (e. g. regulation 2 of No. 1 of 1995;regulation 4 of No. 1 of 1996; regulation 4 of No. 1 of 1998), itis stated as follows: ‘The President may for the purpose ofthese regulations, appoint by name or office, any person orbody of persons to be the "Competent Authority". Thoseregulations gave the "Competent Authority" certain powerswith regard to the control of publication, just as regulation14 of the Emergency (Miscellaneous Provisions and Powers)Regulation No. 1 of 2000 seeks to do.
THE SUBMISSIONS OF LEARNED COUNSEL FOR THE SECONDRESPONDENT
Regulation 2 states that any person can be appointed byname or office as a Competent Authority. The President mayin terms of Article 155 (2) of the Constitution make regulationsoveriding or suspending the operation of the provisions of lawexcept the provisions of the Constitution. The President hasderived authority to appoint a Competent Authority by virtueof Article 1 55 of the Constitution and sections 5 and 6 ofthe Public Security Ordinance. When the President makesregulations the President need not mention in such regulationsthat the President is empowering herself with authority toappoint competent authorities. If the proposition put forwardis accepted, “then one can argue that even in the absence ofprovisions in the Constitution and the Public SecurityOrdinance still the President can appoint competent authoritiesif there is enabling provision in the regulation." It is not "logicalto argue that the President is empowered to make regulationsempowering herself to appoint competent authorities in theabsence of the said (sic) provisions of law. In view of the
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applicability of the said provisions of law there is no necessitywhatsoever for the President to include an enabling provisionto appoint the competent authorities.” The power to appointcompetent authorities is vested in the President and thePresident has made the appointment. There is no irregularityin the procedure followed. In any event, the appointmentcannot be challenged in view of the immunity of the Presidentin terms of Article 35 of the Constitution. Under nocircumstances can the Court question the validity and/orlegality of the appointment of competent authorities. Infact the petitioner has not in the petition challenged theappointment of the competent authorities. Neither the Presidentnor the Attorney General under and in terms of Article 35 (3)of the Constitution have been made parties to this applicationand therefore it is incorrect to consider the validity of suchappointment without hearing the necessary parties.
MY VIEWS ON THE SUBMISSIONS OF COUNSEL FOR THE SECONDRESPONDENT
The President’s power to appoint competent authorities isnot derived from regulation 2. Nor is it derived from Article 155of the Constitution. It is derived from section 6 of the PublicSecurity Ordinance. Article 155 of the Constitution states thatthe Public Security Ordinance “shall be deemed to be a lawenacted by Parliament." As 1 have explained, if and when thePresident decides to appoint authorities or persons to exercisecertain functions, the President must, as required by Parliamentin section 6 of the Public Security Ordinance, as a condition ofits delegation of legislative authority to the President, empowerpersons who are to exercise sub-delegated powers relating tothe making of orders and rules, in emergency regulations.
The President cannot, as learned counsel for the secondrespondent supposed, appoint competent authorities exceptin strict accordance with the provisions of section 6 of thePublic Security Ordinance. It is not a question of “logic", aslearned counsel submitted; it is a question of law; and the law
Sri Lanka law Reports
120001 I Sri L R.
is stated in section 6 of the Public Security Ordinance. Themaking of emergency regulations cannot have the effect ofoverriding, amending or suspending the operation of thePublic Security Ordinance, under Article 155 (2) of theConstitution, for it is through that law that Parliament delegatesthe power of making emergency regulations to the President.It is a duteous thing that the President stricly observes theconditions of the powers of legislation delegated by parliament.The submissions based on the immunity of the President fromsuit and the need to hear "necessary parties" does not requiremuch consideration. This is not a proceeding against thePresident in respect of anything done or omitted to be done bythe President. What is in issue, is the validity of Mr. Rubasinghe'sorders. It is a matter where Paliament has delegated some ofits Constitutional powers to the President and the issue iswhether the power of Parliament delegated to the Presidenthas been exercised in accordance with the intention ofParliament as stated in section 6 of the Public SecurityOrdinance. The Constitution, as well as sections 2 (3), (4) (5)and (6) of the Public Security Ordinance, make it clear inArticle 155 that the President’s powers with regard to publicsecurity are derived from Parliament and are subject toParliament’s control and scrutiny. The Courts shall endeavourto ensure that the will of Parliament, as expressed in thePublic Security Ordnance, will be duly cairied out. As for thesubmission that, the petitioner had not challenged the validityof the Competent Authority's appointment, attention is drawnto paragraph 41 of the petition and prayers (e) and (f) of thepetition, as well as correspondence, refered to above.
For the reasons set out in my judgment, I declare that thefirst respondent had no power or authority to act underregulation 14. 1 further declare that the document daLed the22"‘! of May, 2000 (P26) addressed to Leader Publications(Pvt.) Ltd. by the first respondent, is a nullity and of no forceor avail in law.
Leader Publications (Pvt) Ltd. v. Ariya Rubasinghe. Director of 283
Information and Competent. Authority and Others (Amerasinghe, J.)
Acting under and in terms of Article 126 (4) of theConstitution, I
Direct the 5th respondent, the Inspector-General ofPolice, to restore forthwith to the petitioner possession of anyprinting press, computer equipment or premises of whichpossession may have been taken pursuant to any order orpurported order issued by the first respondent to the 5threspondent;
make order that the State shall pay the petitioner asum of Rs. 100,000 as costs within 8 weeks from the date ofthis order.
DHEERARATNE, J.I agree.
ISMAIL, J.- I agree.
Relief granted by declaration that the Ist respondent'sappointment as Competent Authority is a nullity.
LEADER PUBLICATIONS (PVT) LTD. v. ARIYA RUBASINGHE, DIRECTOR OF INFORMATIO