LIVERPOOL NAVIGATION (PVT) LIMITED
C HAND RANANDA DE SILVA.SECRETARY, MINISTRY OF DEFENCE AND OTHERS
SUPREME COURTDHEERARATNE. J..
W1JETUNGA, J. ANDBANDARANAYAKE. JSC APPLICATION NO 312/99 (FR)
Ist OCTOBER. 1999
Fundamental rights – Right: to equality – Article 12(1) of the Constitution -Entry into Prohibited Zone established by Emergency Regulations – Re-fusal to permit entry – Restrictions imposed on fundamental rights ■National Security – Article 15(7) of the Constitution.
The petitioner company complained of infringement of its rights underArticle 12( 1) by the respondents by reason of the failure on their part togrant security clearance for the petitioner's vessel to operate betweenColombo and Jaffna. The petitioners claimed that they had chartered thesaid vessel from another company. Security clearance is granted by the1S1 respondent (the Secretary, Ministry of Defence) on the recommenda-tion of the Navy Commander (the 3rd respondent). The CommanderNorthern Naval Area (the 4'" respondent) and the Commander of theEastern Naval Area (the 5Ul respondent), in terms of the Emergency(Establishment of a Prohibited Zone) Regulations No. 4 of 1995 whichwere applicable to the North and East. Matters pertaining to thegrant of security clearance were handled by the 2"'1 respondent (theAdditional Secretary. Ministry- of Defence) under the supervision of the1s' respondent.
The petitioner applied to the 1st respondent for security clearance lor itsvessel. Clearance was not given for the reason that in response toinquiries made from the Direclor of Internal Intelligence, it was reportedthat the conduct of one of the Directors of the petitioner Company wasunder investigation by the C.I.D. It was alleged that he was involved inthe large scale transfer of foreign currency from Sri Lanka. Theauthorities were probing the possibility of such monies being used for thepurchase of arms and ammunition lor the LTTE.
Liverpool Navigation (pvt) Ltd. v. Chandrananda De Silva.
Secretary. Ministry of Defence and Others (Wjjetunga. J.)
The available evidence showed that the Charter Party relating to thevessel in respect of which security clearance was sought was a sham.
Article 15(7) of the Constitution states inter alia, that the fundamen-tal rights provided by Articles 12, 13(1). 13(2) and 14shall be subject tosuch restrictions as may be prescribed by law in the interests of nationalsecurity. "Law" in that Article includeds regulations made under the lawfor the time being relating to public security: and the concerns of theexecutive regarding national security must be given due consideration.
Per Wijetunga, J.
"Considering the grave security situation that prevails in this country,more particulary in the North and East it goes without saying thatnational security is a predominant factor in the determination of the
The petitioner had failed to disclose to the authorities or to the court,the true nature of the transaction between it and the company whichowned the vessel, which the petitioner claimed to have chartered to carrycargo from Colombo to Jaffna.
In the circumstances it could not be said that the respondents hadacted in an arbitrary', illegal, unreasonable, capricious or mala fidemanner, in violation of the petitioner’s rights under Article 12(1) of theConstitution.
Cases referred to :
Tennakoon u. T.P.F. de Siva and Others (1997) 3 Sri LR 16
Premachandra v. Jayawickrama and Another (1994) 2 Sri LR 90'
Council of Civil Service Unions and Others v. Minister for the CivilService (1984) 3 ALL ER. 935
APPLICATION for relief for infringement of fundamental rights.
Faisz Musthapha, P.C. with Manohara de Silva and Saliya Peiris forpetitioner.
R.A.F. Arscculeralne P.C.. Addl. Solicitor General with Cihan Kulatunga.State Counsel for respondents.
Cur. adv. vult
Sri Lanka Law Reports
12000) l Sri LR.
January 28, 2000WIJETUNGA, J.
The petitioner-company complains of the infringement ofits fundamental rights under Article 12(1) of the Constitutionby the Is' to 5th respondents, by reason of the failure and/orrefusal and/or delay on their part in granting security clear-ance for the petitioner’s vessel to operate between Colomboand Jaffna.
Certain areas in the North and the East have beendeclared “Prohibited Zones" by regulations made by the Presi-dent under the Public Security Ordinance. It is necessary toobtain the pennission of the Competent Authorities consti-tuted by these regulations to enter such areas. The officersdeclared to be Competent Authorities for the purposes of thesaid regulations are the Commander of the Sri Lanka Navy (3r(lrespondent) the Commander of the Northern Naval Area.Karainagar (4th respondent) and the commander of the East-ern Naval Area. Trincomalee (5th respondent). Security clear-ance by these respondents is a condition precedent to thegrant of necessary' pennission by the Secretary', Ministry' ofDefence (lsl respondent), who states that all matters pertain-ing to the grant of security clearance by the Ministry' of Defenceare handled by the 2nd respondent under his supervision: the2,Kl respondent is the Additional Secretary, Ministry of De-fence.
The petitioner states that it made an application to the 1S1respondent on 4. 12. 98 for security clearance, which wasmarked for the attention of the 2ncl respondent. It appears thaton receipt of this application, the 2nd respondent addressed aletter on 8. 12. 98 to the Director, Internal Intelligence seekingsecurity clearance in respect of the Directors and otherExecutives of the petitioner-company. According to the par-ticulars furnished to the 1st respondent by the petitioner-company on 15. 12. 98, its Directors were SathasivamVincendrarajan (Chairman), Mrs. Sumathy Vincendrarajan(Managing Directress), Mrs. Khemalie Lasita Rachel Tennakoon(Directress), Velupillai Sinnappu Balachandran (Director) andMohamed Iliyas Mohamed Rizly (Director).
Liverpool Navigation (pvl) Ltd. v. Chandrananda De Silva.
Secretary. Ministry of Defence and Others (Wi/etimga. J.)
On or about 22. 12. 98, CID had arrested SathasivamVincendrarajan, the Chairman of the petitioner-company andthe Additional Director-General of the Directorate of InternalIntelligence by letter dated 2. 1. 99 replied the lsl respondentthat “an inquiry is being conducted by the CID against theChairman of the Company, Mr. Sathasivam Vincendrarajan,where the allegations are of a serious nature. In view of theabove, I do not recommend the application, please”.
The 2nd respondent states in his affidavit dated 22. 7. 99inter alia that “in view of the fact that the petitioner companyhas suppressed relevant material and there is an investigationpertaining to the alleged involvement of SathasivamVincendrarajan with the LTTE, granting of security clearanceto the petitioner to operate a vessel to the North and the Eastwould be prejudicial to the national security”'
Consequent to the arrest of Vincendrarajan, he filed afundamental rights application bearing No. S.C. 7/99 and thisCourt by its order in regard to the interim relief prayed fortherein held inter alia that “no reasonable inference could bedrawn that the petitioner had any links with the LTTE or thatthe petitioner’s business ventures were financed by suchorganisation’"
It is relevant to note that, according to the petitioner's owndocuments, changes have been made in the Board of Directorsof the petitioner-company on three occasions since the date ofthe application for security clearance.
As at 26. 11. 98 the Directors were :
Mrs. Sumathy Vincendrarajan
Khemalie Lasita Rachel Tennakoon
Velupillai Sinnappu Balachandran
Mohamed Rizly Iliyas
Sri Lanka Law Rc/xjrts
12000} l Sri UR.
As at 15. 12. 98 the name of ThirunavukarasuSadachcharan had been deleted and the Board of Directorsconsisted of the remaining five persons.
As at 9. 1. 99 the names of Sathasivam Vincendrarajanand Mohamed Rizly Iliyas had also been deleted and the Boardof Directors consisted of the remaining three persons.
As at 15. 2. 99 the name of Mrs. Sumathy Vincendrarajanhad also been deleted and two other persons S.W.J.I.Pushpakumara and Sathasivam Puwaneswaran had beenincluded and the Board of Directors thus consisted of fourpersons.
The petitioner’s letter to the I s' respondent dated 15. 2.99.under the hand of Mrs. K.L.R. Tennakoon as Chairperson/Managing Directress, states inter alia that “you had indicatedthat certain Directors are under surveillance of the authoritiesconcerned and thus we have to experience a delay. Now thoseof whom you had doubts have since tendered their resigna-tions’’. The letter further states that "your early approval ofsecurity clearance for this vessel will enable us to immediatelycommence the proposed cargo sendee to the North . . . ."
Though the petitioner sought to justify the numerouschanges in the Directorate of the company on the basis thatthey were done in the interests of the company and weremerely commercial decisions, the respondents were entitled toview these changes with suspicion as they appeared to be amere facade to obtain security clearance.
In its petition, the petitioner has laid emphasis on the factthat Mrs. K.L.R. Tennakoon is the wife of the Deputy Ministerof Labour, Janaka Bandara Tennakoon. Perhaps that may bethe reason why the letter was conveniently under her hand asChairperson/Managing Directress, soon after the deletion ofthe name of Mrs. Sumathy Vincendrarajan, the wife ofSathasivam Vincendrarajan.
The petitioner relied heavily on the judgement of thisCourt in S.C. Application No. 7/99 (FR) which pertains to thearrest and detention of Sathasivam Vincendrarajan, the then
Liverpool Navigation (pvt) Ltd. v. Chandrananda De Silva.
Secretary. Ministry of Defence and Others (Wtfetunga. J.)
Chairman of the petitioner-company. It must be borne in mindthat the Court in that case was dealing with a matter relatingto the liberty of the subject and the considerations whichapplied to that question are not the same as those applicableto the instant case. Furthermore, the investigations into theactivities of Sathasivam Vincendrarajan by the CID continuedeven after the interim order made by this Court and furthermaterial was obtained by the authorities in consequence.
Sathasivam Vincendrarajan’s alleged involvement in thelarge scale transfer of foreign currency from Sri Lanka bydubious means has been the subject of further investigationsby the CID. The authorities were probing into the possibilityof such monies being utilized for the purchase of arms andammunition for the LTTE, which would ultimately be shippedto the North. The ramifications of such investigations couldwell be imagined, having regard to their international connec-tions and the many subterfuges resorted to by those con-cerned. In such a scenario, the concerns of the executiveregarding national security must be given due consideration.
The Constitution of Sri Lanka in Article 15 recognizescertain restrictions even in regard to the exercise and opera-tion of fundamental rights. Article 15(7) states inter alia that:
"The exercise and operation of all the fundamental rightsdeclared and recognized by Articles 12. 13(1), 13(2) and 14shall be subject to such restrictions as may be prescribed by
law in the interests of national securityFor the purposes
of this paragraph law’ includes regulations made under thelaw for the time being relating to public security."
Learned President’s Counsel for the petitioner rightlysubmitted that he was not challenging the regulations madeunder the Public Security Ordinance, and recognized the needfor such restrictions in the interests national security.
The Emergency (Establishment of a Prohibited Zone)Regulations No. 4 of 1995 made by the President under Section5 of the Public Security Ordinance, published in the Gazette of
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12000) I Sri L.R.
20. 4. 95 have undoubtedly been made in the interests ofnational security. Regulation 4(a) thereof requires that "noperson shall enter the Prohibited Zone in any boat or vessel orin any other manner or remain within or ply any boat or vesselwithin such zone for any purpose whatsoever except with thewritten authority of the Competent Authority."
It is common ground that for the purpose of this regulationpermission is granted by the 1st Respondent or an officerauthorized in that behalf by the 1st respondent, who acts on therecommendations of the 3r' 4"1 or 5th respondents.
The petitioner-company claims that it had chartered M. V.City of Liverpool on or about 19. 11. 98 to carry cargo fromColombo to Jaffna and/or other coastal areas in the North. Itfurther states that while awaiting security clearance, thevessel has been berthed in the Colombo Port, incurringexpenses of approximately Rs. 200,000/- per day.
However, the petitioner has failed to disclose to theauthorities or even to this Court, the true nature of thetransaction between it and NithanTrading Enterprises (S) Pte.Ltd., the owners of the vessel. The respondents instead haveproduced a photocopy of the Charter Party which clearlyshows that it has been signed surprisingly on behalf of NithanTrading Enterprises of Singapore by SathasivamVincendrarajan and Mrs. Sumathy Vincendrarajan – (theirsignatures being identical with those appearing in the Articlesof Association of Liverpool Navigation (Private) Ltd., the peti-tioner-company). The signatories on behalf of the petitioner-company on the other hand are Mohamed Iliyas and V.S.Balachandran, two of its Directors, though at the timeSathasivam Vincendrarajan was the Chairman and Mrs.Sumathy Vincendrarajan was the Managing Directress of thesaid company. The suppression of this vital document createsserious doubts as to the bonafides of the petitioner-companyand leads to the inference that the whole transaction was asham.
It would, at this stage, be useful to consider the attitudeof the Courts to the question of national security. In Tennakoon
Liverpool Navigation (pvt) Ltd. v. Chandrananda De Silva.
Secretary. Ministry of Defence and Others (Wijetiinga. J.)
v. T.P.F. de Silva and others,"1 Fernando, J. observed at page31 that “while it is true that Article 126 does not authorise thisCourt to usurp the lsl respondent’s discretion in regard totransfers, yet it does not allow this Court to accept a mereassertion of that sort-for that would be to abdicate its duty toexamine whether the 151 respondent's conduct fell short of thenorms mandated by the fundamental rights, and thus indi-rectly to invent a new official immunity," – but went on to state:“let me add that, of course, different considerations wouldapply where national security is involved.” (emphasisadded)
In Premachandrav. Jayawickrema and another,121 G.P.S.de Silva, CJ., Bandaranayake, J. and Fernando, J. in the Orderof the Court observed at page 105 that “there are no absoluteor unfettered discretions in public law; discretions are con-ferred on public functionaries in trust for the public, to be usedfor the public good, and the propriety of the exercise of suchdiscretions is to be judged by reference to the purposes forwhich they were so entrusted”, (emphasis added)
In Council ojCivil Service Unions and others v. MinisterJ'orthe Civil Service f the House of Lords carefully considered thequestion of national security. Lord Scarman said at page 948that 'once the factual basis is established by evidence so thatthe court is satisfied that the interest of national security is arelevant factor to be considered in the determination of thecase, the court will accept the opinion of the Crown or itsresponsible officers as to what is required to meet it. unless itis possible to show that the opinion was one which noreasonable Minister advising the Crown could in the circum-stances reasonably have held. There is no abdication of thejudicial function, but there is a common sense limitationrecognised by the judges as to what is justiciable; and thelimitation is entirely consistent with the general developmentof the modem case law of judicial review."
Lord Diplock in the same case said at page 952 that“national security is the responsibility of the executive govern-ment; what action is needed to protect its interests isa
matter on which those on whom the responsibilty rests, and
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120001 I Sri L.R.
not the courts of justice, must have the last word. It is parexcellence a non-justiciable question. The judicial process istotally inept to deal with the sort of problems which it involves.'
Considering the grave security situation that prevails inthis country, more particularly in the North and the East, itgoes without saying that national security is a predominantfactor in the North and the East, it goes without saying thatnational security is a predominant factor in the determinationof this matter. From the point of view of the authoritiesconcerned, the paramount consideration in granting securityclearance is whether it would in anyway undermine thesecurity of the State; more so. as the transport of certainclassified items to North and the East is prohibited for securityreasons, on account of the on going war between the govern-ment and the LTTE. It is against this background that theCourt must consider the complaint of the petitioner-company.
Viewed in that light, it cannot be said that the respondentshave acted in an arbitrary', illegal, unreasonable, capricious ormala fide manner as alleged, in violation of the petitioner'sfundamental rights guaranteed by Article 12(1) of the Consti-tution. Nor do I see any justification for interfering with thedecision of the respondents not to grant security clearance forthe petitioner’s vessel to sail to the North.
The application is accordingly dismissed, but withoutcosts.
DHEERARATNE, J.I agree.
BANDARANAYAKE, J.I agreeApplication dismissed.