MALRAJ PIYASENA v. ATTORNEY-GENERAL AND OTHERS

013-SLLR-SLLR-2007-V-2-MALRAJ-PIYASENA-v.-ATTORNEY-GENERAL-AND-OTHERS.pdf


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Malraj Piyasena v
Attorney-General and Others
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MALRAJ PIYASENAv
ATTORNEY-GENERAL AND OTHERSSUPREME COURT
DR. SHIRANI BANDARANAYAKE, J.
UDALAGAMA, J. ANDSOMAWANSA, J.
S.C. (F.R.) APPLICATION NO. 390/200527TH JULY 2006
Fundamental Rights – Infringement of Article 126 of the Constitution – Is theAssociated Newspapers of Ceylon Ltd. (ANCL), a Limited Liability Companyamenable to fundamental rights jurisdiction – Whether the impugned acts of7th and 8th respondents constitute executive or administrative action -Supreme Court Rules 44(1) C of the Supreme Court Rules (1990).
At the hearing two preliminary objections were raised, namely –
the petitioner cannot invoke the fundamental rights jurisdiction of theSupreme Court, as the impugned act/s by the 2nd to 8th respondentsdo not constitute executive or administrative action/actions.
the petitioner has not complied with the Rule 44(1 )(C) of the SupremeCourt Rules of 1990. as he had not taken steps to file relevant andnecessary documents along with his petition or thereafter.
Held:
Fundamental rights jurisdiction cannot and should not be frustratedon the grounds of lack of jurisdiction without ascertaining the truecharacter of the Institution and therefore it is essential that the truelegal character of the institution in question be examined beforearriving at a decision.
ANCL is an instrumentality or an agency of the State, subject to directcontrol by the Government. In such circumstances, there is nopossibility of construing that the acts of ANCL cannot come under thejurisdiction of fundamental rights, guaranteed in terms of Article 126of the Constitution.
In terms of Rule 44(1 )(C), what is necessary is to tender to Court onlythe documents and affidavits which are available to the petitioner.
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There is no compulsion in terms of Rule 44(1 )(C) to make, an effortto tender documents, which are not in the possession of thepetitioner. The petitioner should plead for any other relevantdocuments and should file them as and when they are available to thepetitioner with the permission of the Court.
In terms of Article 126 read with Article 4(d) of the Constitution, H isapparent that fundamental rights guaranteed by the Constitutioncannot be 'abridged', 'restricted' or 'denied* and it is evident that itwould be the duty of the Supreme Court to ensure that such rights arenot abridged, restricted or denied to the People.
It is not possible to restrict the applicability of fundamental rightsthrough mere technicalities.
per Dr. Shirani Bandaranayake, J:
"The sole purpose of incorporating a Chapter on Fundamental Rights in theConstitution was to protect and promote such rights and this was done onbehalf of the people. These rights have established a firm foundation for ademocratic society, which is rid of all inequalities, which should lead to a newsocial order and thus the fundamental rights are chiefly for the betterment ofthe individual and would eventually lead to the formation of a just society."
Cases referred to:
Thadchanamurthi v Attorney-General FRD(1) 129.
Velmurugu v Attorney-General (198^) SLR 406.
Ireland's United Kingdom January 18,1978 Decisions of the EuropeanCourt of Human Rights.
Mariadasv Attorney-General and another FRD Vol. 2, 397.
Wijetunga v Insurance Corporation (1982) 1 SLR 1.
Gunawardena v Perera (1983) 1 SLR 305.
Perera v University Grants Commission FRD (1) 103.
Peter Leo Fernando v Attorney-General and others (1985) 2 SLR 341.
Rajaratne v Air Lanka Ltd. (1987) SLR 128.
Leo Samson v Air Lanka (2001) 1SLR 94.
Jayakody v Sri Lanka Insurance and Robinson Hotel Company Ltd.(2002) 1 SLR 365.
Som Prakash Rekhiv Union of India AIR (1981) S.C. 212.
Sukdev Singh v Bhagatram AIR (1975) S.C. 1331.
Ramana Dayaram Shettyv The International Air Port Authority of IndiaAIR (1979) S.C. 1628.
AjayHasia v Khatid Mujib (1981) AIR S.C. 487.
Romesh Thapparv State of Madras AIR (1950) SC124.
MaJraj Piyasena v
SC Attorney-General and Others (Dr. Shirani Bandaranayake, J.)119
Prem Chand Gargv Excise Commissioner, U.P. AIR (1963) S.C. 996.
B.V.M. Fernando and others v Associated Newspapers of Ceylon Ltd.
S.C. (FR) 274/2004.
APPLICATION for infringement of Fundamental Rights.
J.C. Weliamuna for petitioner.
Aravinda Athurupana for 2nd, 3rd. 4th, 5th, 7th and 8th respondents.
Cur.adv.vult.
November 23,2006
DR. SHIRANI BANDARANAYAKE* J.The petitioner, an Assistant Manager Security Services(Operations) of the Associated Newspapers of Ceylon Ltd., viz., the2nd respondent (hereinafter referred to as ANCL) alleged that bythe promotion granted to the 7th respondent as managerOperations at ANCL, his fundamental right guaranteed in terms ofArticle 12(1) of the Constitution was violated for which this Courtgranted leave to proceed.
When this matter was taken up for hearing, learned Counsel forthe 2nd to 5th, 7th and 8th respondents (hereinafter referred to asthe learned Counsel for the 2nd respondent), took up a preliminaryobjection stating that ANCL is not amenable to fundamental rightsjurisdiction, as ANCL, which is a limited liability Company or itsofficers is/are not instrumentalities of the State and that thepetitioner has not filed any material to show that ANCL falls withinthe meaning of executive or administrative action in terms of Article126 of the Constitution.
Accordingly learned Counsel for the 2nd respondent submittedthat –
the petitioner should have annexed the gazette notificationreferred to in paragraph 3(b) of the petition to indicate thatANCL has been listed as an institution under the Ministry ofInformation and Media;
as ANCL is a Company, the petitioner should have filed Form48 and share certificates to indicate that the State has themajority of the shares in ANCL; and
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for the reasons referred to in i and li above, learned Counsel forthe 2nd respondent contended that there was non-compliancewith Rule 44(1) (c) of the Supreme Court Rules of 1990.
In the circumstances, it was decided to take up the preliminaryobjection for consideration and both learned Counsel were soheard.
On a consideration of the preliminary objection raised by thelearned Counsel for the 2nd respondent, it is apparent that hisobjection is based mainly on two grounds; namely
the impugned act/s by the 2nd to 8th respondents do notconstitute executive or administrative action and thereforethe petitioner cannot invoke the fundamental rightsjurisdiction of this Court; and
the petitioner has not complied with the Rule 44(1 )(c) of theSupreme Court Rules of 1990, as he had not taken steps tofile relevant and necessary documents along with his petitionor thereafter.
Having stated the objections of the learned Counsel for the 2ndrespondent, let me now turn to examine the said objections.
A. Whether the impugned act/s by the 2nd to 8threspondents constitute executive or administrativeaction
Although Article 126 of the Constitution refers to executive oradministrative action, with reference to fundamental rights, theConstitution does not provide any definition to this concept. It wouldtherefore be necessary to analyze the case law in order to considerthe definition in this respect. The case law, it is to be noted, clearlyindicates a gradual evolution towards broadening the concept,since the early decisions after 1978.
In Thadchanamurthi v Attorney-General (1 ) at 129 a very narrowview was taken while considering an infringement of fundamentalrights by executive or administrative action, where it was stated thattorture inflicted by police officers were unlawful and ultra vires ofthe duties of the police officers and therefore it would not amountto state action. It was also stated that the State would be liable for
Mairaj P 'tyasena v
SCAttorney-General and Others (Dr.Shirani Bandaranavake, J.)121
the wrongs of its subordinate officials only when an 'administrativepractice' had been adopted. A few years later in Velmurugu vAttorney-General® at 406 in the majority view it was held that ifliability is to be imputed to the State it must be on the basis of anadministrative practice and not on the basis of an authorization,direct or implied, or that those acts were done for the benefit of theState. However, in the minority decision, Sharvananda, J. (as hethen was) had taken a broader view in giving a meaning to thephrase 'executive or administrative action1 to encompass all actionsby State officials. Referring to several judgments of otherjurisdictions and especially the decision in Ireland v UnitedKingdom!3) Sharvananda, J. (as he then was) stated that,
"There is no justification for equating 'executive oradministrative action' in Article 126 to 'administrativepractice' or to acts resulting from administrative practice.Practice' denotes 'habitual or systematic performances'and contemplates a series of similar actions. No known orlimited constitution of the phrase 'executive oradministrative action', which, ordinarily understood,embraces in its sweep all acts of the administration,especially when what is at stake is the subject'sConstitutional remedy. In my view, all that is required of apetitioner under Article 126 is that he should satisfy thisCourt that the act of infringement complained of by him isthe action of a State official or repository of State power.
Any violation of fundamental rights by public authority,whether it be an isolated individual action or consequentto administrative practice, furnishes, in my view, sufficientbasis for an application under Article 126."
This view expressed in 1981 was reiterated by Sharvananda, J.,(as he then was) in Mariadas v Attorney-General and another<4)and in Wijetunga v Insurance Corporation(5> at 397. Theinterpretation thus propagated by Sharvananda, J. (as he thenwas) was again referred to in Gunawardena v Perera<6) at 305.
In Perera v University Grants Commission® at 103Sharvananda, J. (as he then was), again referred to the phrase'executive or administrative action' within the framework of Articles
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17 and 126 of the Constitution and stated that.
"The expression 'executive or administration action'embraces executive action of the State or its agencies orinstrumentalities exercising governmental functions."
A Divisional Bench of this Court in Peter Leo Fernando vAttomey-Generai and others^ at 341 referred to the interpretationgiven by Sharvananda, J. (as he then was) to the phrase ’executiveor administrative action' in Velmurugu v Attorney-General andothers {supra), Perera v University Grants Commission (supra) andin Wijetunga v insurance Corporation and another (supra) andquoted with approval the principle, which had emerged through theaforementioned decisions in giving a meaning to the concept of’executive or administrative action'. Colin-Thome'.J. in hisjudgment, thus stated that the test to be applied in deciding,whether the action in question is executive or administrative, is toexamine the nature of the function and the degree of control thathas been exercised.
In Rajaratne v Air Lanka Ltd.W at 128 the question, which arosewas as to whether the actions of Air Lanka Ltd., would come withinthe meaning of 'executive or administrative action1. Atukorale, J.after an exhaustive examination of Sri Lanka and Indian cases,took the view that the expression executive or administrative actionin terms of Articles 17 and 126 of the Constitution should be givena broad construction and Air Lanka Ltd., was a Company formed bythe government, owned by the government and controlled by thegovernment and these functions render Air Lanka an agent ororgan of the government, which is thereby amenable to thefundamental rights guaranteed in terms of Articles 17 and 126 ofthe Constitution.
The Divisional Bench decision in Leo Samson v Air Lankat'0) at94 and the decision in Jayakody v Sri Lanka Insurance andRobinson Hotel Company LtdSu) at 365 on the other hand hadused different parameters in deciding whether government controlis exercised over a respondent Company. Accordingly in LeoSamson’s case (supra), the Court had applied the ’deep andpervasive control test' whereas in Jayakody (supra) the Court afterexamining the structure of the respondent Hotels Company had
Malta] Piyasena v
SC Attorney-General and Others ( Dr.Shirani Bandaranayake, J.)123
held that although it was carrying on 'commercial functions' it wouldstill be a State agency.
Having said that, let me now turn to examine the position of theapplication under review.
The petitioner in his petition had stated that the 2nd respondentis in terms of the provisions of section 2 of the AssociatedNewspapers of Ceylon Ltd. (Special Provisions) Law, No 28 of1973 (hereinafter referred to as the Law), a Company other than aprivate Company within the meaning of the Companies Act, No. 17of 1982. In such circumstances could it be possible to hold that theaction of the 2nd respondent comes within the purview of ’executiveor administrative' in terms of Articles 17 and 126 of theConstitution?
It is not disputed that the 2nd respondent falls within thecategory of a Company. The chief contention of the learnedCounsel for the 2nd respondent was that, since the decision of LeoSamson (supra), the necessary requirement in proof of 'executiveor administrative action' would be the 'deep and pervasive’ test.Learned Counsel further contended that 'neither Leo Samson'scase (supra) nor Jayakody’s case (supra) has whittled down therequirement of deep and pervasive state control1.
In Leo Samson's case (supra) one of the petitioners had allegedthat the termination of his services by the Chief Executive Officer ofSri Lankan Airlines Ltd was violation of Article 12(1) of theConstitution. The other petitioner had alleged, inter alia, that hisbeing posted as Manager, Kuwait is violative of Article 12(1) of theConstitution.
A preliminary objection was raised on behalf of Sri LankanAirlines that consequent to the Shareholders Agreement signed bythe Government with Air Lanka and Emirates Airlines and theamended Articles of Association of Air Lanka, the impugned acts donot constitute 'executive or administrative action'. This Court heldthat the 'executive or administrative action' would include executiveor administrative action of the State or its agents orinstrumentalities. In deciding so Ismail, J. had stated that, it wasclear from the provisions of the Memorandum and Articles ofAssociation and the Shareholders Agreement that the management
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power, control and authority over the business of the Companywere vested in the Investor with certain management decisions,being vested exclusively in it.
It is thus clear that the Court had based its decision on aconsideration of the provisions of the amended Articles ofAssociation and the Shareholders Agreement and accordingly hadheld that the Government had lost the 'deep and pervasive' controlexercised earlier by it over the Company.
The decision in Jayakody (supra), had considered the rationaleof Leo Samson (supra) and answered in the negative the questionas to whether the judgment in the latter would affect the decisiontaken in Jayakody v Sri Lanka Insurance and Robinson Hotei Co.Ltd. (supra). The Court in Jayakody's case (supra) took the viewthat the 2nd respondent in that case is a State agency andtherefore its actions are executive or administrative in character.Therefore in Jayakody (supra) the Court had taken the view that thetest to decide whether an act comes within the purview ofexecutive or administrative action would be to consider whether theparty in question is a State agency and to consider whether theState has the effective ownership of such establishment and if sowhether such an establishment would come under the category ofState Agency.
Therefore it is apparent that whilst Leo Samson (supra) hadconsidered the kind of control, which is necessary to come withinthe framework of executive or administrative action, in Jayakody(supra) the Court had examined the character of the establishmentin order to decide whether there could be executive oradministrative action carried out by such an institution. Accordinglyit is apparent that the decision in Jayakody (supra) could be clearlydistinguished from the decision in Leo Samson's case (supra).
Considering the circumstances and the questions that has arisenin the present application, it is apparent that they are quite similar tothe questions, which had been considered in Jayakody v Sri Lankainsurance and Robinson Hotel Co. Ltd. (supra). Moreover on sucha comparison, and for the reasons aforementioned, it is alsoapparent that the present application could thus be distinguishedfrom that of the decision of Leo Samson (supra).
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The question before this Court therefore is to examine whetherANCL, is a State Agency.
Learned Counsel for the 2nd respondent strenuously contendedthat ANCL is not an entity controlled by the State, but that it is aCompany and its decisions cannot be questioned in terms of Article126 of the Constitution.
It is however an accepted fact that fundamental rightsjurisdiction cannot and should not be frustrated on the grounds oflack of jurisdiction without ascertaining the true character of theInstitution and therefore it is essential that the true legal characterof the Institution in question be examined before arriving at adecision. In fact this position has been considered by Krishnalyer.J. in Som Prakash Rekha v Union of india^2) upholding theviews of Mathew, J. in his land mark decision in Sukhdev Singh vBhagatram^3) which was adopted by Bhagwati, J. in RamanaDayaram Shetty v The International Air Port Authority ofIndia(14).
In Ramana Shetty's case (supra), Bhagwati, J. considering thedoctrine of agency propounded by Mathew, J. in Sukhdev Singh(supra) stated that,
"Where a Corporation is wholly controlled by governmentnot only in its policy making, but also in carrying out thefunctions entrusted to it by the law establishing it or by theCharter of its incorporation, there can be no doubt that itwould be an instrumentality or agency of government…"
Upholding the views expressed by Mathew, J. in Sukhdev Singh(supra) Bhagwati, J. in the judgement of a Divisional Bench in AjayHasia v Khalid /Wu//#15) at 487 clearly stated that,
"The Government in many of its commercial ventures andpublic enterprises is resorting more and more frequentlyto this resourceful legal contrivance of a corporationbecause it has many practical advantages and at thesame time does not involve the slightest diminution in itsownership and control of the undertaking. In such cases,the true owner is the State, the real operator is theState and the effective controllorate is the State and
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accountability for its actions to the community andthe Parliament is of the State." (emphasis added).
In Ajay Hasia (supra) the society in question was registeredunder the Societies Registration Act for the purpose of establishingan Engineering College, which was sponsored, supervised andfinancially supported by the Government. The Indian SupremeCourt held that such a society should be an instrumentality or anagency of the State.
It is therefore evident that careful attention should be given toseveral factors, which are relevant in considering whether aCompany or a Corporation is an agency or an instrumentality of theGovernment. Having this in mind let me now turn to examine thestatus of the 2nd respondent.
It is not disputed that ANCL is a creature of a statute as its statuswas changed by the Associated Newspapers of Ceylon Ltd.(Special Provisions) Law, No. 28 of 1973 (as amended). Thepreamble to this Law clearly states that it is,
“A Law to change the status of the company carrying onbusiness under the name of the Associated Newspapersof Ceylon Limited, to provide for the redistribution of theshares of such company, and for the reconstitution of thebody responsible for the management and administrationof the business and affairs of such company….”
Provision has been made in this Law that not less than 75% ofthe total number of all the shares of the Company to be vested inthe Public Trustee on behalf of the Government (section 2(b) of theLaw). Moreover, unlike the other Companies, in terms of section 17of the Law, the Minister is empowered to make regulations for thepurpose of giving full force and effect to the principles andprovisions of this Law. Section 11 of the Law provides the Ministerto revoke or amend the Memorandum and Articles of Association ofthe Company by regulation published in the Gazette.
It is pertinent to note the provisions made in terms of section16(1) of the Law read with sections 9 to 12 of the PublicCorporations (Financial Control) Act, where the accounts andproperty of ANCL are to be audited by the Auditor-General.
Malraj Piyasena v
SC Attorney-General and Others ( Dr.Shirani Bandaranayake, J.)127
Considering the aforementioned factors, it is thus clear thatANCL is prima facie a statutory body with government control.
Learned Counsel for the petitioner in fact submitted that asaverred in paragraph 3(b) of the affidavit of the petition, ANCL is aninstitution, which functions under the direct purview of the Ministryof Information and Media. The petitioner had thus averred that,
"Moreover, by Order of Her Excellency the President,
published in the Government Gazette (Extraordinary) of28.04.2004, the ANCL has been listed as an institutionunder the purview of Ministry of Information and Media."
On a consideration of all the aforementioned facts andcircumstances, it is evident that ANCL is an instrumentality or anagency of the State, subject to direct control by the government. Insuch circumstances, there is no possibility of construing that theacts of ANCL cannot come under the jurisdiction of fundamentalrights, guaranteed in terms of Article 126 of the Constitution.Accordingly could it be said that the impugned acts by ANCL do notconstitute executive or administrative action and therefore thepetitioner cannot invoke the fundamental rights jurisdiction of thisCourt? The answer to this question is clearly in the negative as it isclearly evident from the reasons aforesaid that ANCL is anauthority, which falls within the parameters of an instrumentality oragency of the State.
B. Non-compliance with Rule 44(1)c of the Supreme Court
Rules of 1990.
Learned Counsel for the 2nd respondent strenuously contendedthat the petitioner had not complied with Rule 44(1 )c in reference totwo matters alleged in paragraph 3(b) of his petition. Paragraph3(b) of the petition as referred to earlier, deals with the legal statusof ANCL, where the petitioner had stated that,
“In terms of the provisions of section 2 of the AssociatedNewspapers of Ceylon Ltd. (Special Provisions) Act, No.
28 of 1993 (hereinafter ANCL Act), the 2nd respondentAssociated Newspapers of Ceylon Limited (hereinafterANCL) is a Company other than a private Company withinthe meaning of the Companies Act, No. 17 of 1982. Further
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in terms of section 2(b) of the ANCL Act not less thanseventy-five per centum of all the shares of the Companyshall vest in the Public Trustee on behalf of the Government,Moreover, by Order of Her Excellency the President,published in the Government Gazette Extraordinary of28.04.2004. the ANCL has been listed as an institution underthe purview of Ministry of Information and Media."
Learned Counsel for the 2nd respondent submitted that thepetitioner cannot rely on the Law by itself and submit that 75% ofthe shares of ANCL are held by the Public Trustee as at the datethe petitioner had filed his petition.
Learned Counsel for the 2nd respondent further contended thatif the petitioner had wanted to rely on share holding position, heshould have filed a copy of the Annual Return of ANCL. He alsosubmitted that if the petitioner has not annexed to the petition anysuch document to indicate that at least 75% of the total shares ofANCL, being vested in the Public Trustee, as at the time of thepetition, that would amount to non-compliance with Rule 44(1 )(c) ofthe Supreme Court Rules of 1990.
Rule 44 of the Supreme Court Rules of 1990 is contained in PartIV, which deals with the applications under Article 126. Rule44(1 )(c) of the aforesaid Rules is in the following terms;
"tender in support such petition, such affidavits anddocuments as are available to him;" (emphasis added).
It is thus apparent that in terms of Rule 44(1 )(c), what isnecessary is to tender to Court only the documents and affidavits,which are available to the petitioner. In such circumstances could itbe possible for this Court to consider that in terms of Rule 44(1 )(c),the petitioner is under an obligation to tender all the relevantdocuments?
Rule 44(1 )(c) clearly specifies that the petitioner has to tender toCourt in support of his application, the petition, affidavit and otherdocuments as are available to him. Thus Rule 44(1 )(c) is emphaticon the point of the types of documents that should be tendered toCourt. What it states is that, the petitioner should tender only thedocuments, which are available to him. In other words, there is no
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compulsion in terms of Rule 44(1 )(c) to make an effort to tenderdocuments, which are not in the possession of the petitioner. Whatis necessary in terms of Rule 44(1 )(c) is to tender all relevantdocuments to support the petitioner's application, that are availableto him at the time of filing the application. The petitioner shouldplead for any other relevant documents and should file them as andwhen they are available to the petitioner with the permission of theCourt.
The basis of this position could be clearly, understood byexamining the nature of the fundamental rights jurisprudence vis avis, the civil and criminal litigation process.
Article 126 of the Constitution clearly states that the SupremeCourt shall have sole and exclusive jurisdiction to hear anddetermine any question relating to the infringement or imminentinfringement by executive or administrative action of anyfundamental right or language right declared and recognized byChapter III or Chapter IV of the Constitution. Article 4(d)emphasizes on the exercise of sovereignty through thefundamental rights jurisdiction and states as follows:
"the fundamental rights, which are by the Constitutiondeclared and recognized shall be respected, secured andadvanced by all the organs of government, and shall notbe abridged, restricted or denied, save in the manner andto the extent hereinafter provided;
It is therefore to be noted that in terms of Article 126 read withArticle 4(d) of the Constitution, it is apparent that the fundamentalrights guaranteed by the Constitution cannot be 'abridged,restricted or denied' and it is evident that it would be the duty of thisCourt to ensure that such rights are not abridged, restricted ordenied to the People.
These rights, which are fundamental in nature, are inalienableas Article 3 of the Constitution clearly states that,
"In the Republic of Sri Lanka sovereignty is in the Peopleand is inalienable. Sovereignty includes the powers ofgovernment, fundamental rights and the franchise,"
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Fundamental rights are conferred on the People, which areinalienable. Therefore such rights are to be enjoyed by them. Thesole purpose of incorporating a Chapter on Fundamental Rightsin the Constitution was to protect and promote such rights and thiswas done on behalf of the People. These rights have establisheda firm foundation for a democratic society, which is rid of allinequalities, which should lead to a new social order and thus thefundamental rights are chiefly for the betterment of the individualand would eventually lead to the formation of a just society. Unlikean ordinary legal right, which is protected and enforced by theordinary law, the fundamental rights are guaranteed andprotected by the Constitution and they are available only againstexecutive or administrative action. Referring to such fundamentalrights, Patanjali Sastri, J.; (as he then was) in Romesh Thapper vState of Madras*16) at 124 commented that,
"This Court is thus constituted the protector andguarantor of fundamental rights and it cannot,consistently with the responsibility so laid upon it, refuse
to entertain applications seeking protection againstinfringements of such rights."
A decade later, in 1963, Gajendragadkar, J.; Prem Chand Gargv Excise Commissioner, LAP.*17) emphasized the important positionheld by the fundamental rights jurisdiction in a democratic systemin the following words:
"The fundamental right to move this Court can, therefore,be appropriately described as the cornerstone of thedemocratic edifice raised by the Constitution."
In such circumstances it is quite clear that it is not possible torestrict the applicability of fundamental rights through meretechnicalities.
Having said that let me now turn to examine the contention ofthe learned Counsel for the 2nd respondent in his preliminaryobjection on the ground of non-compliance with Rule 44(1 )(c) of theSupreme Court Rules of 1990.
The main submission of the learned Counsel for the 2ndrespondent is that,
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the petitioner had not filed Form 63 of the Companies Act;and
the petitioner had not filed the Gazette Notification to supportthe submissions referred to in paragraph 3(b) of the petition.
It is not disputed that the petitioner in his petition dated28.09.2005 referred to the legal status of the 2nd respondent inparagraph 3(b) of the petition, which paragraph was re-producedearlier. That paragraph clearly stated the number of shares thatwas vested with the Public Trustee and referred to the GazetteExtraordinary of 28.04.2004, where ANCL was listed as aninstitution under the purview of the Minister of Information andMedia.
The Company Secretary of ANCL in her affidavit dated04.01.2006, denied the averments in paragraph 3(b) and hadaverred that,
"I deny the averments in paragraph 3(b) of the saidpetition except that the provisions of the AssociatedNewspapers of Ceylon Limited (Special Provisions) Act,
No. 28 of 1973 are applicable to the 2nd respondent."
Paragraph 3(b) of the petition, as referred to earlier, speaks ofthe Law and its provisions, which states that not less than seventy-five per centum of its shares being vested in the PublicTrustee.
It is thus evident that ANCL had not denied this position andtherefore it is apparent that the reference to the Law had beensufficient to justify the proposition propounded by thepetitioner.
Considering the fundamental rights jurisdiction exercised by thisCourt in terms of Rule 44(1 )(c) of the Supreme Court Rules of1990, it has been the practice of this Court to have a liberalapproach in entertaining documents. There have been manyinstances, where parties have moved Court to call for necessarydocuments. Needless to say that, documents are necessary andvital for the purpose of ascertaining whether there has been aviolation of any fundamental rights as the said jurisdiction isexercised and facts are ascertained through affidavits and
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documents. It has also to be borne in mind that in terms of Article126(2) of the Constitution that in order to exercise the fundamentalrights jurisdiction, an aggrieved person should apply to this Courtby way of petition within one month of the alleged infringement.Thus in order to advance the fundamental rights jurisdiction andalso to ensure that such jurisdiction is not 'abridged, restricted ordenied' to the People, it would be necessary to give a liberal and apurposive construction to Rule 44(1 )(c) of the Supreme CourtRules of 1990.
Considering all the aforementioned factors, it is evident that interms of Rule 44(1 )(c), once a petitioner has pleaded a documentin his petition he would be entitled to submit it 'as is available tohim1 and with the permission of Court or move Court to call for suchdocument.
It is also important to note that, it was the responsibility of the2nd respondent to have disclosed relevant and material facts if theywere to deny the averments of the petitioner. If the respondentswere to deny the position taken by the petitioner, the onus was onthe respondents to produce such material facts and disclose that tothis Court. It is however not disputed that the respondents have notproduced any material either to deny the contention of thepetitioner or to substantiate their position. In such circumstances itwould not be correct for the learned Counsel for the 2ndrespondent to state that the petitioner had not complied with Rule44(1 )c as he has not filed Form 63 of the Companies Act.
Learned Counsel for the 2nd respondent also contended thatthe petitioner should have filed the Gazette Extraordinary of
along with the petition.
As referred to earlier, the question of the aforesaid Gazettenotification not being filed by the petitioner came up at the stage ofhearing, when preliminary objections were raised by the learnedCounsel for the 2nd respondent. Learned Counsel for the petitionersubmitted that, at the time of filing the petition, a copy of the saidGazette was not available and stated that a copy would besubmitted along with his written submissions. In fact the learnedCounsel for the petitioner had filed a copy of the said Gazette,marked X, along with his written submissions.
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In these circumstances, the objection by the (earned Counsel forthe 2nd respondent on the ground of non-compliance of Rule44(1 )(c) of the Supreme Court Rules of 1990 cannot be sustained.
It would be worthy to note before I part with this judgment thesubmission of the learned Counsel for the petitioner where hestated that, there were several cases filed against ANCL and thatthis Court had considered those on their merits and none had heldthat the actions of ANCL are not executive or administrative actionin terms of Article 126 of the Constitution. He cited the recentdecision by this Court in B.V.M. Fernando and others v AssociatedNewspapers of Ceylon L/m/teafl18), where the Court had consideredANCL as an agent of the State.
On a consideration of all the material placed before this Court Ihold that the 2nd respondent, namely the Associated Newspapersof Ceylon Ltd., is a State agency and that its actions were thereforeexecutive or administrative in character and that the petitioner hadcomplied with Rule 44(1 )(c) of the Supreme Court Rules of 1990.
I according overrule the preliminary objection, with costs in asum of Rs, 10,000/- payable by ANCL (2nd respondent) to thepetitioner. This amount to be paid within one month from today.
Since this matter cannot be concluded before this Bench, thiswill be listed before any Bench for hearing on the merits, on a datenext term to be fixed by the Registrar of the Supreme Court.
UDALAGAMA, J.-I agree.
SOMAWANSA, J.-I agree.
Preliminary objection overruled.
Matter set down for Argument