Recruitment and promotions to the posts in the abovementionedServices are the responsibilities of the respective AppointingAuthorities. You are requested to personally ensure the effectiveandf air implementation of the above Circular. No deviations therefromwill be permitted. Any problems, issues or acts of non-complianceshould be immediately brought to my notice without delay, in futre.”
The Petitioner pleads that on 5th March 1990, there was issued aninternal notice calling for applications from officers in the grade ofSuperintendents to fill vacancies in the posts of Assistant Directors ofCustoms: that P2 is a copy of the said notice; that all eligible officerssent in their applications: that the Petitioner and 52 other Superintendentsappeared at an interview held on 7.7.90: that there are in all twenty-two vacancies to be filled from and out of those applicants who wereinterviewed on the 7.7.90: that all such promotions have hitherto beenmade on merit and seniority, that in terms of seniority and merit, of thefirst twenty two persons eligible for selection for promotion, 15 areSinhalese and 7 Tamils: that the Petitioner being the tenth in the listof seniority, he would definitely be selected to fill one of the said twentytwo vacancies in the post of Assistant Director: that the effect of theaforesaid Circulars P4 and P5 is to drastically alter the scheme ofrecruitment to and promotion hitherto applicable to the Public Serviceby introducing the ethnic quota principle: that the displacement of theprinciple of merit and seniority in the promotion to the post of AssistantDirector would adversely affect the Petitioner’s prospects of promotionto the said post; that if the selection and appointment is made on ethnicquota, as set out in the aforesaid circulars P4 and P5, then whilst 19Sinhalese would be promoted as against 3 Tamils, he the Petitioner,who though the 10th in the list, is the 5th Tamil in such list would notbe promoted: that the 2nd and 3rd Respondents, whose responsibilityit is to fill such vacancies, intend to comply with the principles set outin the said Circulars P4 and P5: that the said Circulars are discriminatory,and violated the principle of equality, as enunciated in the Article 12(1)and (2) of the Constitution in that the Petitioner is placed at a disadvantagemerely on account of his race.
SC Ramupillai V Minister of Public Administration, Provincial Councils
& Home Affairs and others (Ranasinghe.C.J)19
The position taken up by the learned Attorney-General briefly is thatthe said Circulars, far from being violative of Article 12, in fact entrenchesand emphasises the concept of equality: that the quotas assigned toeach ethnic group is commensurate with the proportion it bears to theentire population of the country: that in any given instance all thingsbeing equal the number of appointments from each group would beequivalent to its respective ethnic proportion which is the ratio assignedin the Circular to each ethnic group: that, if any part of the Circular isfound to be violative, then directions be given as to how it could be broughtinto conformity with the law, rather than strike down the entirety of theCircular.
The reach, scope and content of the provisions of Article 12 – whichguarantees equality before the law and also the equal protection of thelaw – were considered at length in three cases shortly afterthe Constitutionof 1978 was promulgated: the judgment of Sharvananda, J., (as theChief Justice then was) and Wanasundera, J., in the case Palihawadanavs. A.G., et aI (1) the judgment of Sharvananda, J., delivered on 8.8.1980 in the case of Perera vs. University Grants Commission, (2) thejudgment of Wanasundera, J., delivered on October 1980 in the caseof Seneviratne vs. University Grants Commission, (3)
What the concept of “equality”, so assured in Article 12, connotes waselucidated by them, with reference to the several authorities referredto in their respective judgments: and what is relevant for the purposesof the issue under consideration in this Application may be set downas follows, that such equality meant that, among equals, the law shouldbe equal and it should be equally administered: that like should be treatedalike: that all persons are equal before the law and are entitled to equalprotection of the law: that no citizen shall be discriminated against ongrounds of race, religion, language, casts, sex, political, opinion, placeof birth or any of such grounds: that equality of opportunity is an instanceof the application of this general rule: that whilst Article 12 does not confera right to obtain State employment, it guarantees a right to equality ofopportunity for being considered for such employment: that what ispostulated is equality of treatment to all persons in utter disregard ofevery conceivable circumstance of difference as may be found amongstpeople in general: that it prohibits class legislation, but that reasonableclassification is not forbidden: that “it must appear that not only that aclassification has been made, but also that It is one based upon some
Sri Lanka Law Reports
(1991) 1 Sri L.R
reasonable ground – some difference which bears a just and properrelation to the attempted classification:” Gulf of Colombo Co. vs. Ellis
: that it merely “requires that all persons subjected to such legislationshall be treated alike unde’- like circumstances and conditions, both inthe privileges conferred and on liabilities imposed” -(Willis, ConstitutionalLaw 1936 Ed.p.574,580 ) : that whilst “reasonable classification ispermitted without doing violence to the equal protection of the laws, suchclassification must be based upon some real and substantial distinctionbearing a reasonable and just relation to the things in respect of whichsuch classification is imposed” – Southern Railway Company vs. Greane: that “in order to pass the test of permissible classification, twoconditions must be fulfilled, namely, (i) that the classification must befounded on an intelligible differentia which distinguishes persons orthings that are grouped together from others left out of the group, and
that the differentia must have a rational relation to the objects soughtto be achieved by the Act: that “what is necessary is that there mustbe a nexus between the basis of the classification and the object of theAct.” Budhan Chaudhry vs. the State of Bihar (6): that discriminationof persons in one class or similarly circumstanced should be avoided:that the basis of classification must generally be so drawn that thosewho stand in substantially the same position in respect of the law aretreated alike: that Article 12 nullifies sophisticated as well as simple-minded modes of discrimination: that equal protection carries with it,of necessity, the doctrine of classification, for inequalities and disabilitieswhether natural, social or economic may have to be taken into accountif justice and fairness is to be achieved as a final result: that the principleof equality does not mean that every law must have universal or uniformapplication to all persons irrespective of differences inherent by nature’sattainment or circumstances: that the State must be allowed to classifypersons or things for legitimate purposes: that the classification to beacceptable must be based on some real or substantial distinction bearinga just and reasonable relation to the object sought to be attained: thatin any permissible classification-mathematical nicety or perfect equalityis not expected.
What equality before the law and the equal protection of the law, assuredby the said Article 12, connote were once again dealt with by Sharvananda,C.J., in the case of S.C. Perera vs. University Grants Commission –
R.D. p. 103 (2) – in this way: that discrimination to be violative ofArticle 12 must be discrimination between equals: that no infringementof Article 12 is involved where unequals are treated differently: that the
SC Ramupi/lai V Minister of Public Administration, Provincial Councils
& Home Affairs and others (Ranasinghe,C.J)21
intelligible differentia required to support a permissible classification mustdistinguish persons or things that are grouped together from others leftout of the group, and must have a reasonable relation to the object soughtto be achieved: that there must be some rational nexus between thebasis of such classification and the object intended to be achieved bysuch classification: that (he “equal protection clause ceases to assureeither equality or protection if it is avoided by any conceivable differencethat can be pointed out between those bound and those left free.” -Railway Express Agency vs. New York (7) : that where the effect ofany executive or administrative action is discriminatory, the fact that thedominant purpose of the authority was not to discriminate is immaterial:that the court, is not concerned with the motive for such action that itis only concerned with its effect or impact on the citizen: that” to makeout a case of denial of the equal protection, a plea of differential treatment,is by itself not sufficient: that the Petitioner pleading that Article 14 hasbeen violated, must make out that not only had he been treated differentlyfrom others, but that he had been so treated from persons similarlycircumstanced without any reasonable basis and such differential treatmentis unjustifiably made. ” – Probhudas Morarjee vs. Union of India, (8)
Learned Counsel for the Petitioner cited the decision of the IndianSupreme Court in the case of State of Kerala vs. Thomas and others(9) in which Article 14 of the Indian Constitution which corresponds toArticle 12 of our Constitution was considered and in which the court,dealing with the concept of equality embodied in the Indian Constitution,observed: that the concept of equality embodied in the Indian Constitutionensures to all citizens equality of opportunity in matters relating toemployment: thatthat is an incident of the guarantee of equality containedin Article 14: the there could be reasonable classification of the employeesin matters relating to employment or appointment: that the Supreme Courtof India has taken the view that equal protection of the law is a pledgeof the protection of equal laws, and has evolved the doctrine ofreasonable classification: that such classification is one which includesall who are similarly situated and none who are not: that discriminationis the essence of classification: that equality is violated if it rests onunreasonable basis: that those who are similar!y circumstanced areentitled to an equal treatment: that equality is amongst equals: thatclassification is therefore to be founded on substantial differences whichdistinguish persons, groups together from those left out of the groupand such differential attributes must bear a just and rational relation tothe object sought to be achieved: that the categories of classification
Sri Lanka Law Reports
(1991) 1 Sri L.R
for promotion can never be closed on the contention that they are allmembers of the same cadre in service: that, if classification is madeon educational qualifications or if classification is made on the groundthat persons are not similarly circumstanced in regard to entry intoemployment such classification can be justified: that there is no denialof equal opportunity unless the person who complains of discriminationis equally set with the persons who are alleged to have been favoured:that there is no prohibition of the prescription of reasonable rules forselection to any office: that in regard to employment, like other termsand conditions associated with and incidental to it, the promotion to aselected post is also included in the matters relating to employment:that even in regard to such a promotion all that is guaranteed is equalityof opportunity: the power to make reservation of appointments includesthe power to provide reservation of selected posts: that in doing so theState has to take into consideration claims consistent with the maintenanceof the efficiency of the administration: that the rule of parity is equaltreatment of equals in equal circumstances: that the rule of classificationis not a natural and logical corollary of the rule of equality, but that therule of differentiation is inherent in the concept of equality: that equalitymeans parity of treatment, under parity of conditions:that any classificationin orderto be constitutional must rest upon distinctions that are substantialand not merely illusory: that the test is whether it has a reasonable basisfree from artificiality and arbitrariness embracing all and omitting nonenatural falling into that category: that the equality of opportunity takeswithin its fold all stages of service from initial appointment to its terminationincluding promotion, but that it does not prohibit the prescription ofreasonable rules for selection and promotion applicable to all membersof a classified group: that the principle of equality is applicable toemployment at all stages and in all respects, namely, initial recruitment,promotion, retirement, payment of pension and gratuity: that with regardto promotion the normal principle iseithermerit–cum-seniority orseniority-cum-merit: that seniority-cum-merit means that given the minimumnecessary merit requisite for efficiency of administration, the seniorthough the less meritorious shall have priority, that a rule which providesthat given the necessary requisite merit a member of a backward classshall get priority to ensure adequate representation will not violate Article14: that the concept of equality is that if persons are dissimilarly placedthey cannot be made equal by having the same treatment: that equalityof employment opportunity admits discrimination with reason, and prohibitsdiscrimination without reason: that reservation of post for a section ofthe population has the effect of conferring special benefits on that section,
SC Ramupillai V Minister of Public Administration, Provincial Councils
& Home Affairs and others (Ranasinghe,C.J)23
because it would enable members belonging to that section to getemployment or office under the State which otherwise in the absenceof reservation they could not have got: that such preferential treatmentis plainly a negation of theequality of opportunity for all citizens in mattersrelating to employment or appointment to an office under the State: thatpermissible classification must be founded on an intelligible differentiawhich distinguishes persons or things that are grouped together fromothers left out of the group and such differentia must have a rationalrelation to the object sought to be achieved by the statute: that equalityof opportunity in matters of promotion must mean equality betweenmembers of the same class of employees and not equality betweenmembers of separate independent classes: that a classification basedupon the consideration that an employee belongs to a particular sectionof the population with a view to according preferential treatment forpromotion is a clear violation of equality of opportunity: that in no casehas the Court ever accepted and upheld a classification and differentialtreatmentforthe purpose of promotion among employees who possessingthe same educational qualifications were initially appointed to the samecategory of posts: that to overdo classification is to undermine equality:that to expand the frontiers of classification beyond those which haveso far been recognised is bound to result in creation of classes forfavoured and preferential treatment for public employment and thuserode the concept of equality of opportunity for all citizens in mattersrelating to employment under the State: that in construing Articles ofthe Constitution the historical background, the felt necessities of the time,the balancing of conflicting interests must all be considered; that thegenius of Articles 14 and 16 of the Indian Constitution consists not inliteral equality but in progressive elimination of pronounced inequality:that even if racial classifications do have some negative educative effect,the classifications may be so effective that they should be instituteddespite this draw back, and that if a court is convinced that the purposeof a measure using racial classification, is truly benign, that is that themeasure represents an effort to use the classification as part of a programdesigned to achieve an equal position in society for all races then it maybe justified in permitting the State to choose the means for doing so,so long as the means chosen are reasonably related to achieve thatend: that the courts adopt a policy of restrained review where the situationis complex and is intertwined with social, historical and other substantiallyhuman factors: that through imperceptible extensions, a theory ofclassification should not be evolved which may subvert, perhaps submergethe precious guarantee of equality, which would result in the ideals of
Sri Lanka Law Reports
(1991) 1 Sri L.R
the supremacy of merit, the efficiency of the public service and theabsence of discrimination being sacrificed.
The judgments referred to earlier clearly show that the provisions ofArticle 12(1) and (2) bring within their reach equality of opportunity foremployment as well and that such guarantee of equality applies not onlyin the matterof selectionfor employment, but also atthe stage of selectionfor promotion.
Forthe purpose of determining the criterion for admission to the Universityin the year 1980, two separate examinations were held in the monthsof April and August 1979 upon two separate sets of syllabuses. TheUniversity Grants Commission – which is the 1 st Respondent in eachof the two abovementioned cases and is also the body established bythe University Act No. 16 of 1978 with power to determine, in the mannerset out therein, the total number of students which shall be admittedto each University, and the apportionment of the number to the differentcourses of study in each University, and to select students for admissionto each University – decided: to adopt a system of allocating the availableplaces to the two examinations in proportion to the numbers attainingthe minimum requirement for admission at each examination: to fill 30%of the available places in respect of each examination in the order ofmerit determined on an Island-wide basis: 55% of the places so availableto be allocated on a district basis to be filled in the order of merit ineach district: balance 15% to be allocated to 13 districts deemed to beeducationally under-privileged to be filled in the order of merit within eachsuch district. It was this decision of the said Commission which cameup for the consideration of this Court in Perera’s case (supra) when thePetitioner in the said case challenged the application of a ratio in theselection for admission. His complaint, however, was only in regard tothe 1 st group of 30%, as between the successful candidates in the Apriland August examinations respectively.
After an exhaustive consideration of the Indian authorities referred toin the judgment, Sharvananda, C.J., took the view: that all those whoqualified for admission at the two examinations were integrated into oneclass: that once they were so absorbed into one class they cannot, byreference to their original source, be discriminated in the selection foradmission: that all those who qualified for admission in both examinationsmust be afforded equality of opportunity: that this principle of equalityof opportunity is violated by a process of selection not grounded on
SC RamupiHai V Minister of Public Administration, Provincial Councils
<S Home Affairs and others (Ranasinghe.C.J)25
the merits of the candidates: that the discrimination complained of wasnot based on any reasonable classification: that the application of anyratio based on any consideration other than merit to the three categoriesreferred to earlier would infringe the rule of equality: that the selectionof candidates into the aforesaid three categories has to be on the basisof merit and merit alone. The imposition of the said ratio was thus struckdown by the Supreme Court.
The constitutionality of the second of the three categories referred toin Perera’s case (supra), viz: the reservation of 55% of the availableplaces to be allocated on a district basis among the 24 Revenue Districts- which was not challenged in Perera’s case (supra) and was thereforenot considered by Sharvananda, C. J., – was what came up forconsiderationin Seneviratne’s case (supra) by Wanasundera J. After an exhaustiveconsideration of the relevant Indian decisions, – in which quota reservationsfor admission to colleges, classification on territorial or geographicalbasis, the relevancy of the demand of the times, the national interest,the right of the Government to lay down criteria of eligibility and sourcesof admission, in determining the permissibility of the classification,whether or not the merit principle could be modified, when courts wouldinterfere in regard to claims based upon national policy and nationalinterest had been considered by the Indian Supreme Court – and alsofew American decisions, including the case of Regents of the Universityof California vs. Alan Bakke (10) – where the “equal protection” clausein the Fourteenth Amendment of 1868, and Title VI of the Civil RightsAct of 1964, which expressly forbade racial or ethnic discrimination inprogrammes that receive federal aid, were discussed and the majority(even though only 4 out of the 9 judges ultimately thought it waspermissible in that particular case) were of the view that racial preferenceswere sometimes permissible – and also the development of affirmativeaction or reverse discrimination programmes in the United States,Wanasundera J., took the vifiw that the State enjoys wide discretionin laying down criteria for admissions, that it is a matter ol discretionfor the relevant Authority to indicate the sources from which admissionsshould be made after an overall assessment of the needs: that a rationalclassification could include considerations of national interest and policy.
Wanasundera, J., was satisfied with the material adduced by theRespondent Commission; and concluded by upholding the decision ofthe said Respondent Commission, and by quoting with approval theobservation of the Indian Supreme Court, in the case of Kumari vs.State of Mysore (11)
(1991) 1 Sri L.R
Sri Lanka Law Reports
“For relief against hardship in the working of a valid rule the petitionerhas to approach elsewhere because it relates to policy underlyingthe rule.”
A consideration of the facts and circumstances of the two decisions ofthis Court, referred to above, and the principles laid down in the Indiancases, referred to therein, and also in the case of State of Kerala vs.Thomas (supra) it is clear: that the State is free to decide upon the sourcesfrom which either admissions to educational institutions or recruitmentsto the Public Service are to be made: that for such purpose the Statecould take into consideration the over-all needs and matters of nationalinterest and policy: that once such selections are made those taken infrom such sources are integrated into one common class: that thereaftersuch appointees are “clubbed” together into a common stream of serviceand cannot thereafter be treated differently for purposes of promotionby referring to the consideration that they were recruited from differentsources: that their genetic blemishes disappear once they are integratedinto a common class and cannot be revived so as to make equalsunequals once again: that there should be no further classificationamongst them, except upon certain acceptable criteria such as educationalqualifications.
The principles culled from the authorities considered above do makeit clear: that any differentiation made on ethnic grounds per se wouldbe considered abhorrent: that, even so, under certain circumstanceseven such distinctions, drawn upon racial grounds, could be consideredpermissible.
The Circular P4 deals with both initial appointments and subsequentpromotions within the Service. Although the internal notice of March 1990envisages the issuance of a fresh letter of appointment as AssistantDirector to the successful applicants, yet, the applications are confinedto officers in a lower grade, viz: Superintendent of Customs. The saidappointments, therefore, do in fact operate as promotions to a highergrade for the twenty-two officers who, like the Petitioner, are now servingin a lower grade as Superintendents of Customs.
The Petitioner’s principal complaint, with respect to the imposition of anethnic-quota requirement in the said Circulars, is directed against thethreatened enforcement of this requirement in regard to the impendingselections for promotions to the said grade of Assistant-Director.
scRamupillai V Minister of Public Administration, Provincial Councils
& Home Affairs and others (Ranasinghe.CJ)
On a consideration of what has been stated above it seems to me thatthese Customs Officers were, upon their initial appointment, integratedinto one common class, and that thereafter there should not ordinarilybe any further classification, as amongst them, for promotion from theirpresent grade to the higher grades. The only consideration that shouldthereafter prevail, in regard to promoting them to a higher grade, is merit,or merit and seniority, which alone would enhance and ensure theefficiency of the service rendered by the department to the public ingeneral. In effecting the promotions, referred to in these proceedings,the Respondents do not seek to place any consideration upon anyindividual educational qualifications of the officers eligible to be sopromoted. There is no evidence of any past discrimination within theservice: nor of any imbalance existing within the service which calls forrectification. The object of effecting such promotions should quite clearlybe to provide a more efficient service through such officers to the generalpublic.
I am, therefore, of opinion that any promotions made, based upon ethnicquotas as set out in paragraph (3) of P4, would be violative of the rightof “equality” assured to the Petitioner by the provisions of Article 12 of
the Constitution.
I would not, however, in these proceedings go the length of striking downparagraph (3) of P4, for the reason that, as set out earlier, the authoritiesdo seem to recognise the existence of certain circumstances in whichclassification based upon ethnic grounds could be considered permissible.
Similarly, the question whether the contents of the said Circulars, P4and P5, in regard to initial appointments to the Public Service, also offendagainst the said principle of equality spelt out in Article 12 of theConstitution will be left open to be considered at some future date, whenthe matter of initial recruitment itself, to the Public Service, arises directlyfor consideration by this Court, and when also a fuller consideration ofall aspects of the matter of ethnic quotas and reservations, which,according to the local, Indian and American authorities, referred to aboveare relevant and pertinent, viz: matters of historical background, the feltnecessitiesof thetime, national policy, imbalances, reverse discrimination,could be entertained and undertaken. On such an occasion not onlythe concept of “group” rights in international human rights law, but alsothe other universally recognised set of norms and principles relating to
Sr> Lanka Law Reports
(1991) 1 Sri L.R
human rights, which are now being widely and increasingly consideredproper and necessary for national courts to recognise and apply inreconciling the competing claims of individuals and groups of personswith the general interests of the community, could be considered. Theseseem to be matters upon which this Court would wish to be, and shouldbe advised further and more fully.
There is just one other matter which requires to be considered. LearnedCounsel for the Petitioner submitted: that the Government has no powerto make rules with regard to appointment and promotion based on ethnicproportions: that it must be made by legislation and not by way ofexecutive action: that it was outside the scope of the rule making powerand beyond the scope of Article 55(4) fo the Constitution: that, in anyevent, it can be done only by way of amendments to the EstablishmentCode.
In regard to this submission all that need be said is that, if that is thereal position then the complaint is against an act of a body which eitherhas no power at all or has exceeded the power vested in it. If that wereso, relief against the impugned act cannot then be by way of the provisionsof Article 126 of the Constitution.
It, however, seems to me that the Cabinet has, by virtue of the provisionsof Article 55(4) and on the authority of the decisions of this Court inthe cases of Abeywickrema vs. Pathirana (12) and The Public ServiceUnited Nurses Union vs. M. Jayawickrema, Minister of Public Administration(13) the powerto make rules such as are embodied in P4 and P5, subject,however, to the power vested in this Court by the provisions of Article55(5) of the Constitution.
The complaint of imminent infringement made by the Petitioner is directedagainst acts of the Respondents, more particularly the 2nd and 3rdRespondents who no doubt seek to do such acts under and by virtueof the authority of P4 and P5 which embody decisions of the Cabinet.Even so, the immediate acts, which are said to affect the Petitioner,are clearly those of the 2nd and/or the 3rd Respondents themselves.Such acts of the said Respondents undoubtedly fall within the categoryof “executive pr adminsitrative” acts as is contemplated by the provisionsof Sub-Articles (1) and (2) of Article 126 of the Constitution.
SC Ramupillai V Minister of Public Administration, Provincial Councils
& Home Affairs and others (Ranasinghe,C.J)29
For the reasons set out above, I make order-as also made by Fernando,J., whose judgment I have had the advantage of perusing in draft andwith whose “guide-lines” I am in general agreement – directing theRespondents to consider the Petitioner’s application, called for by thedepartmental internal notice issued on 5.3.90 (P2), for promotion fromthe grade of Superintendent, Customs to the grade of Assistant Director,Customs, without taking into consideration any ethnic-quota.
Having regard to all the circumstances, I direct the parties to bear theirown costs of these proceedings.
The petitioner has filed this application under Article 126 of the Constitutionchallenging the criteria laid down in the Public Administration Circular,No. 15/90, dated 09th march, 1990, for promotion in the Public Service.The Circular was issued by the then Secretary, Ministry of PublicAdministration, Provincial Councils & Home Affairs. The said Circularstates, inter alia, –
If the total number of promotional positions available in the PublicService are below 4 in number, merit will be the sole criterion ofselection, (para 05).
If the total number of promotional positions in the Public Serviceare above 4 in number, promotion at the national level should beentirely on merit, subject to the principle of national ethnic quotasbeing followed, (para 02 (i) (b) ).
The composition of the ethnic ratio for the Sinhalese Communitywill be 75% of the total number of vacancies. Tamils, persons ofIndian Origin and Muslims shall be selected on the ratio of 12.7%,5.5% and 8% respectively. However, if there is a difficulty in determiningthe exact numbers, a variation of minus or plus 2% could bepermissible, (para 02 (i) (g)).
The Secretaries to Ministries and Heads of Departments are requiredto implement this Scheme of promotion with effect from 01.01.1990as a matter of National Policy, (para 09).
Sri Lanka Law Reports
(1991) 1 Sri LR
The Public Administration Circular, No. 15/90 (i) dated 25th March, 1990,states that “the 75% allotment of the total number of vacancies for theSinhala Community as per paragraph 02 (i) (g) 5f Circular No. 15/90,will include all minorities other than Tamils, persons of Indian Origin andMuslims. Malays will be included in the 8% alloted to Muslims.” TheAppointing Authorities are “required to personally ensure the effectiveand fair implementation of the above Circular. No deviations therefromwill be permitted.” The public Administration Circular, No. 15/90 (ii), dated15th June, 1990, states that “the Government has decided that promotionsin the Public Service etc. should be proceeded with in terms of theapproved scheme for promotion subject to the principles of ethnic ratiobeing followed.”
The Hon. Attorney-General referring to the ratio of Muslims as givenout in the Circulars said that it should be corrected to read as “Moor”,highlighting the ethnic composition rather than the religious composition.Nevertheless, I shall refer to them as Muslims as the Circular, No. 15/90, calls them so; so do our Legislative Enactments (See, MuslimMarriage & Divorce Act, Cap. 134; Muslim Intestate SuccessionOrdinance, Cap. 72; Muslim Mosque & Charitable Trusts Ordinance,Cap. 459).
The petitioner is an officer of the Sri Lanka Customs Service. He wasfirst appointed to the General Clerical Class of the General ClericalService on the results of a competitive examination held on 10.8.1956.After his probationary period he was confirmed on 18.09.1958. On01.10.1958 he was appointed to the General Clerical Class of theCustoms Clericl Service and on 01.11.1962 he was promoted to theExecutive Clerical Class, Grade II, of the Customs Clerical Service. Thepetitioner passed the first Efficiency Bar Examination before thesalary scale of Rs. 3,180/- per annum.
In 1968, the Unified Customs Service was established. Consequent oncreation of the Unified Customs Service, the petitioner was appointedto Grade ii of that Service on 01.10.1968. He passed the 2nd EfficiencyBar Examination before the salary point of Rs. 3,900/- per annum on23.08.1972. The petitioner was promoted to Class I of the UnifiedCustoms Service on 28.06.1979.
The Minute on Unified Customs Service dated 15.09.1968 issued underthe hand of the then Permanent Secretary of the Ministry of Financeand approved by the Public Service Commission states in paragraph
scRamupiUai V Minister of Public Administration, Provincial Councils
& Home Affairs and others (Tambiah, J.)
5 that promotion to grade 1 and the Special Grade of the Unified CustomsService will be on merit and seniority.Chapter 11, a. 5, of the Establishment Code (Volume 1) which dealswith promotion of public officers states, inter alia, that in filling of avacancy, the Head of the Department should prepare a Scheme ofRecruitment and forward same to the Appointing Authority who wouldthen appoint a Selection Board. On receipt of the recommendation ofthe Selection Board, the Appointing Authority will make the appointment.S. 5:3,1, states that the Appointing Authority, on receipt of therecommendations of the Selection Board, will have the order of meritascertained according to the marks obtained by the candidates at thewritten examination and at the interview and thereafter make theappointment.
On 15.07.1985, the petitioner was promoted as Sub-Collector, whichdesignation was later changed to Superintendent of Customs, a postwhich he currently holds in the Sri Lanka Customs Department.
In all, the petitioner counts 34 years in the Public Service.
On 05.03.1990 there was an internal notice calling for applications fromofficers in the grade of Superintendents to fill vacancies in the post ofAssistant Director of Customs which is a post just above the post ofSuperintendent. In the specimen form of application, the particularscalled for were, inter alia, the date of appointment to the Department,educational qualifications, knowledge of the official language andparticulars of work done during the last 5 years. The petitioner and otherSuperintendents applied in response to the said notice and attendedthe interview held on 07.07.1990. The petitioner has filed a list ofSuperintendents according to seniority. It is common ground that .53persons holding the post of Superintendents attended the said interviewand that the petitioner was the 10th in order or seniority. The appointmentsto the post of Assistant Directors have not yet been made. This Court,when granting leave to the petitionerto proceed with his application madeorder restraining the Respondents from filling the vacancies in the postof Assistant Directors until the final determination of this application.
In terms of paragraph 2 (i) (g) of Circular No. 15/90, in the CustomsDepartment which is a national service, promotions are to be made onthe national ethnic proportion, i.e., Sinhalese 75%, Tamils 12.7%, Indian
(1991) 1 Sri L.R
Sri Lanka Law Reports
Tamils 5.5% and Muslims 8%. There are at present 24 vacancies tobe filled in the post of Assistant Directors, according to the Hon. Attorney-General. Applying this ratio, the 24 vacancies would be distributed asfollows: Sinhalese 18%, Sri Lanka Tamils 3.05%, Indian Tamils 1.32%,and Muslims 1.92%. Since there are no Indian Tami! or Muslim applicants,the 24 vacancies have to be filled by Sinhalese and Tamils. The resultwould be that the 24 vacancies must be filled by 20 Sinhalese and 4Tamils.
According to the petitioner, hitherto all promotions to the post of AssistantDirector from the post of Superintendent have been made on merit andseniority principle; the seniority list is followed and an officer is overlookedfor promotion only if there have been adverse reports against him; oncethe selections are made, there are adjustments made in the order ofseniority in the promoted post according to merit earned in the lowerpost, and this scheme of promotion has been consistently followed andgiven satisfaction to customs officers.
It is the case of the petitioner that since he is 10th in the list of seniority,if ■ the merit and seniority principle in followed he certainly would havebeen selected to fill the 24 vacancies as Assistant Director. In termsof seniority and merit, the 1st 24 persons whose names appear in thelist of seniority would ordinarily be selected for appointment to the postof Assistant Director. Of these persons, 17 are Sinhalese and 7 areTamils. But, if the selection and appointment is made on the ethnic quotain terms of the Public Administration Circular, the 20 Superintendentswho are Sinhalese will be promoted as against 4 Tamils. The petitionerwho is 10th in the list and who is the 5th Tamil in the same list wouldnot be promoted. It has been his expectation, he-says, from the timehe entered the service that he would obtain the promotions that he wasentitled to and that he would eventually retire having reached the highestposition in the Customs Department available to him in terms of meritand seniority.
So near and yet so far!
The petitioner wants this Court to declare the Public AdministrationCirculars, Nos. 15/90, 15/90 (i) and 15/90 (ii) ultra vires the Constitutionand null and void as being violative of the petitioner’s right to equalityas enshrined in Articles 12(1) and 12 (2) of the Constitution and to makeorder that any purported appointments as Assistant Directors in
scRamupillai V Minister of Public Administration, Provincial Councils
& Home Affairs and others (Tambiah, J.)
the Unified Customs Service in terms of Public Administration Circulars,Nos. 15/90,15/90 (i) and 15/90 (ii), would be violative of the petitioner’sright to equality enshrined in the Articles 12 (1) and 12 (2) of theConstitution.
The 2nd Respondent denies that in filling the 24 vacancies, the senioritylist is displaced exceptionally where the record of a particular officerdisentitles him for promotion. Seniority is often overlooked dependingon the performance of the candidates in the service and at the interview.Being 10th in the list does not entitle the petitioner to be selected tofill a vacancy.
It it the position of the Respondents that in the recent past the nationalsecurity of the country was thereatened by force and violence. One ofthe causes of such force and violence was the perception among minoritycommunities and other disadvantageous groups of this country that theyhave been denied of opportunites and promotions within the PublicService and the other public sector organisations. Therefore, as ameasure of national policy it was determined that such perception wouldbe favourably assuaged by the promulgation of a scheme of recruitmentand promotion which manifestly ensured that no ethnic group wouldbe denied entry oropportunity of appointment in the Government Serviceand other public sector organisations on account of their ethnicity; thatthe apportionment of the recruitments and appointments on the relevantethnic ratio was the most reasonable criteria that would remedy thisunfavourable situation and eradicate the prevailing condition and instilconfidence in the minds of the different ethnic groups. The Circularsset out a rational basis for recruitment and promotion in the Public Serviceand ensures the proper representations of the interests of all sectionsof the community. The Circulars are reasonable in the circumstancesand do not offend the equality provisions under the Constitution.
Before us, the Hon. Attorney-General submitted that at different timesthere has been many complaints that the scheme of recruitment in thePublicService was unfair either to the majority orthe minority. He pointedout that there was a finding in the Report of the Presidential Commissionon Youth that one of the major causes of youth unrest was the feelingof discrimination in schemes of recruitment in all sectors of employment,public, private, the corporation and plantation sector. The Circular wasdrafted to meet a social need. The scheme of recruitment would ensurethat all ethic groups have a fair chance of being recruited. The Circulars
Sri Lanka Law Reports
(1991) 1 Sri L.R
are not discriminating but entrench a guarantee against discrimination.He further submitted that by these Circulars, ethnicity has not subsumedthe criteria of merit. There has to be a basic qualification which makesa person eligible to apply for a vacancy in the public service. And amongthese eligible, the selection will be made according to the ethnic proportionas stipulated in the Circulars. It was further submitted that the petitionerdoes not enjoy a right to appointment to any particular grade or postwithin the Public Service and therefore cannot claim a breach of anyfundamental right.
Though the Report of the Presidential Commission examined in depththe problem of youth employment, the Report makes no reference toany demand being made for the adoption of national ethnic ratios inrecruitment for employment nor does the Report make such arecommendation. On the other hand, in regard to admissions to theUniversity, the Commissioners declined to accept a request made bycertain representatives of the youth of the Muslim Community for areservation of 8% of University admissions for Muslims and went onto state “that ethnic quotas are not an answer to Muslim representationsin the Universities. The introduction of such quotas has in the past ledto a great deal of unrest and a sense of discrimination. Any advancesmade by such schemes are negated by the political repercussions ina multi ethnic society.”
The Respondents do not deny that hitherto all promotions to the postof Assistant Director have been made on seniority and merit principle,and that the Public Administration Circular (15/90) drastically altered thescheme of promotion in the Public Service by introducing a new criteriafor promotion, viz, the principle of ethnic quotas. Nor do the Respondentsdispute the petitioner’s eligibility and seniority for promotion.
The Hon. Attorney-General submitted that there have been manycomplaints at different times that the scheme of recruitment in the PublicService wasunfaireitherto the majority orthe minority; so the Governmenthas decided to formulate a scheme of recruitment to meet a social needand ensure that all ethnic groups have a fair chance of being recruited.These may be proper and legitimate considerations to be taken intoaccount in formulating government policy. But they have to beaccommodated within the framework of the Constitution. The State isat liberty to do everything to achieve that object so long as no provisionof the Constitution is contravened and no fundamental right declared
SCRamupi/lai V Minister of Public Administration, Provincial Couttpls f |
& Home Affairs and others (Tambiah, J.)35
by the Constitution is infringed or impaired. As was’pointed out bySeervai (Constitutional Law of India, 3rd Edn. p. 286); “Article 14(identical with Art. 12 (1) of our Constitution) confers a personal rightby enacting a prohibition, and the only question which has to bedetermined when the law is said to violate the right is to inquirewhether the prohibition is violated. If the prohibition has been violated,the law will be void, however laudable the motive of its makers; andif the prohibition has not been violated, the utmost malignity on thepart of the law-makers will not make it void”
Article 12 (1) of our Constitution which states that “all persons areequal before the law and are entitled to equal protection of the law”is the equivalent of Article 14 of the Indian Constitution. Article 12(2)of our Constitution which states that “No citizen shall be discriminatedagainst on grounds of race, religion, language, caste, sex, politicalopinion, place of birth or any one of such grounds”, corresponds toArticle 15(1) of the Indian Constitution. Article 15 of the IndianConstitution, as originally enacted, contained only 3 sub-clauses.Clause (4) which reads “nothing in this Article or in clause (2) ofArticle 29 shall prevent the State from making any special provisionfor the advancement of any socially and educationally backwardclasses or for the Scheduled Castes and the Scheduled Tribes” wasinserted by the Constitution (1st Amendment) Act, 1951. Article 16(1)of the Indian Constitution states that “there shall be equality ofopportunity for all citizens in matters relating to employment orappointment to any office under the State”, and Article 16 (2) statesthat “no citizen shall, on grounds only of religion, race, caste, sex,descent, place of birth, residence or any of them, be ineligible for,or discriminated, against in respect of any employment or office underthe State”. Article 16 (4) states that “nothing in this Article shallprevent the State from making any provision for the reservation ofappointments or posts in favour of any backward class of citizenswhich, in the opinion of the State is not adequately represented inthe services of the State”.
Article 16 (4) of the Indian Constitution was brought in by anAmendment in 1951 as a result of the decision in Madras v.Champakam Dorairajah and another (14). This case first came upbefore the High Court of Madras (Dorairajah v. State of Madras) (15).The 2 petitioners, both belonging to the Brahmin Community, soughtadmission to the Medical and Engineering Colleges maintained by
Sri Lanka Law Reports
(1991) 1 Sri L.R
the State of Madras. They complained that the Communal GovernmentOrder was violative of their fundamental rights contained in Articles 15
and 29 (2) of the Constitution. Article 29 (2)’states that “no citizenshall be denied admission into any educational institution maintainedby the State or receiving aid out of State funds on grounds only of religion,race, caste, language or any of them.” In terms of the CommunalGovernment Order, the seats in both the Medical and EngineeringColleges were to be filled up according to certain proportions. For every14 seats to be filled, candidates were to be selected strictly on thefollowing basis:
Non-Brahmins (Hindu)-6
Backward Hindus-2
Anglo-Indians & Indian Christians -1
For the State it was sought to justify the discrimination on grounds ofpublic policy and as necessary to bring out social justice by promotingthe interests of the educationally backward sections of the citizen.Reliance was placed on Article 46 which contains directive principle ofstate policy which runs, “The state shall promote with special care theeducational and economic interests of the weaker sections of the people,and, in particular, of the scheduled castes and the scheduled tribes, andshall protect them from social injustice and all forms of exploitation”.Rajamannar, C.J. observed (p.126) –
“After reiterating the principle of non-discrimination in Article 16
, Article 16 (4) makes an exception and provides for discriminationin favour of backward classes of citizens. Now there is no suchprovision for reservation as regards admissions into educationalinstitutions.. .and we do not feel justified in adding a new provisionby way of an exception to the expressed declaration made inArticle 15 (1) and Article 29 (2). In our opinion Article 46 cannotoverride the provisions of these two Articles or justify any lawor act of the State contravening their provisions.”
The Court held that the Communal Government Order violatedArticle15 (1)of the Constitution. Rajamannar, C.J. observed (p.125) -“Article 15 (1) in unambiguous terms declares that the State
scRamupillai V Minister of Public Administration, Provincial Councils
& Home Affairs and others (Tambiah, J.)
shall not discriminate against any citizen on grounds only ofreligion, race, caste, sex, place of birthorany of them. “Discriminateagainst” means make an adverse distinction with regard to,distinguish unfavourably from others (Oxford Dictionary). Whatthe Article says is that no person of a particular religion or casteshall be treated unfavourably when compared with other religionsor castes merely on the ground that they belong to a particularreligion or caste.”
Viswanath Sastri, J. observed (pp. 133, 136, 137, 138 & 139)
“The use of the words “or any of them” in Articles 15 (1) & 29(2) shows emphatically that not one of the enumerated groundsnamely, race, religion, caste etc. is a valid ground lor admittingor refusing admission of students to educational institutionsmaintained by the State or with State aid.
The rights that are protected and guaranteed by this Article (Art.15(1) are the personal rights of each individual citizen, his caste,race or religion being wholly ruled out of consideration. It is notrights of a caste or community or rights of citizens as representingor forming integral parts of a caste or community that this Articledeals with and guarantees. The right guaranteed is the personalright of every individual citizen, qua citizen and not as belongingto a particular caste or professing a particular religion.
They (Articles 14 & 15 (1)) guarantee certain valuable personalrights to every citizen . . . The State is prohibited by Article 15(1) from discriminating against any citizen on the ground of hiscaste or religion. It prohibits the State from discriminating againstcitizens seeking to avail themselves of opportunities provided bythe state for their intellectual development and materialadvancement by joining educational institutions maintained at theexpense of the State, on the ground of caste or religion, if theystatisfy reasonable tests prescribed alike for all citizens similarlysituated. The Communal Government Order which classifiedcitizens according to their caste and religion for the purpose ofadmission to Government Medical & Engineering Colleges, whichallots seats in definite and fixed proportions to different castesand religions and communities and which operates effectively toshut out a large number of students with higher qualifications and
Sn Lanka Law Reports
(1991) 1 Sri L.R
to let in a large number of students with lower qualifications, solely,on account of their belonging to particular castes or communities,discriminates against citizens on the ground of caste, communityor religion and therefore violates Article 15 (1) of the Constitution.”
When this case came before the Supreme Court, S.R. Das, J. pointedout (p.228) that Article 16 which guarantees the fundamental right ofequality and provides that no citizen shall, on grounds only of religion,race, caste etc. be ineligible for or discriminated against in respect ofemployment or office under the State also includes clause 4 whichempowers the State to make reservations of posts for backward classes.Das, J. observed (p. 228), –
“Seeing, however, that clause (4) was inserted in Article 16, theomission of such an express provision from Art. 29 cannot butbe regarded as significant. It may well be that the intention ofthe Constitution was notto introduce at all communal considerationsin matters of admiss ion into any educational institution maintainedby the State or receiving aid out of State funds. The protectionof backward classes of citizens in State services and the reasonwhy power has been given to the State to provide for reservationof such appointments for backward classes may under thesecircumstances be understood. That consideration, however, wasnot obviously considered necessary in the case of admission intoan educational institution and that may well be the reason forthe omission from Art. 29 of a clause similar to cl. (4) of Art. 16.”
Das, J. pointed out (P. 227) that Ch. (2) of Article 29 guarantees thefundamental right of an individual citizen to get admission into anyeducational institution maintained by the State or receive aid out.of Statefunds and not as a member of any community or class of citizens. Thisright is not to be denied to the citizen on grounds only of religion, race,caste, etc. The argument on behalf of the State that Article 46 entitlesthe State to maintain the Communal Government Orderfixing proportionateseats for different communities and if by reason of that the petitionerscannot gain admission into educational institutions, there is no infringementof their fundamental rights was rejected.
The Court held that the Communal Government order proceeds on thebasis of religion, race, and caste and such classification is a violationof the fundamental right guaranteed to a citizen under Article 29 (2),and was therefore void.
SC Ramupillai V Minister of Public Administration, Provincial Councils
S Home Affairs and others (Tambiah, J.)39
In Tritoki Nath v. J. & K (16) the State of Jammu and Kashmir ingivingpromotionstoteachersinthe services of the Education Departmentadopted the following policy, –
50% of the vacancies were filled from among the Muslims of theentire State.
40% of the remaining 50% vacancies were filled by Jammu Hindus.
the remaining 10% of the posts were given to the Kashmir Hindus.
The petitioners claimed that their promotions were denied to them andthey had been discriminated solely on the ground of religion and placeof residence; that junior officers were promoted over senior officers onthe sole ground that the former belonged to the Muslim Community orthat they were Hindus belonging to the Jammu province of the Stateof Jammu and Kashmir. The State sought to justify the basis of promotionon the ground that it had acted in consonance with the principles of clause
of Article 16; that the Muslims as a community in the whole of theState of Jammu and Kashmir formed a backward class of citizens andnot adequately represented in the services underthe State; that similarlythe Hindus from the province of Jammu formed a backward communityand were also not adequately in the services of the State.
The evidence showed that the Selection Board consisting of fourSecretaries to the government was directed to select candidates “keepingin view the policy of adequate representation of such elements as werenot adequately represented in the Services and to pay due regard toProvincial proportions.” The Court held that this direction violated Articles16 (1) and 16 (2) and was void.
Shah, J. observed (pp.3 & 4):
“Art. 16 in the first instance by cl. (2) prohibits discrimination on theground, inter alia, of religion, race, caste, place of birth, residenceand permits an exception to be made in the matter of reservationin favour of backward classes of citizens. The expression ‘backwardclass’ is not synonymous with ‘backward caste’ or ‘backwardcommunity’. But for the purpose of Art. 16(4), in determining whethera section forms a class, a test solely based on caste, community,race, religion, sex, descent, place of birth, or residence cannot be
Sri ^anka Law Reports
(1991) 1 Sri L.R
adopted, because it would directly offend the Constitution. The statepolicy was policy not of reservation of some appointments or posts;it was a scheme of distribution of all the posts community wise.Distribution of appointments, posts or promotions made in theimplementation of that State policy is contrary to the constitutionalguarantee under Art. 16 (1) and (2) and is not saved by cl. (4).”
Our Constitution does not have provisions similar to Articles 15 (4) and16 (4) of the Indian Constitution.
There is more than one decision of this Court which states that Article12 (1) of our Constitution though it forbids class legislation, does notforbid classification (See, PaHhawadana & Others v. Attorney-General:(1) Perera v. University Grants Commission (2). The guarantee ofequality under Article 12 (1) is therefore not denied by a permissibleclassification. But, Article 12 (2) prohibits discrimination on any of theenumeratedgrounds, namely, race, religion, language, caste, sex, politicalopinion, place of birth or any such ground. Chaudhuri (FundamentalRights, 2nd Edn., Vol. 1, pp 96,97) discussing Articles 14 and 15 ofthe Indian Constitution says, “Article 15 expresses particular applicationof the general principle laid down in Art. 14. When a law comes withinthe prohibition of Art. 15, it cannot be validated by recourse to Art. 14by principles of reasonable classification.” So that, if a law or executivedecision comes within the prohibition of Article 12(2), it cannot be justifiedunder the theory of classification, in fact, the Hon. Attorney-General didnot seek to justify the impugned Circular (15/90) under the doctrine ofreasonable classification by establishing that the classification is notarbitrary but bears a reasonable relation to the purpose or object of theCircular, his contention was that the Circulars set out a rational basisfor recruitment and promotion in the public se rvice and ensures the properrepresentations in the interests of all sections of the community; thatit ensures that all ethnic groups have a fair chance of being recruited,and that the Circulars are in furtherance and not in derogation of Article12 (1).
The right that is protected and guaranteed by Article 12 (1) is the personalright of any person, qua person, and not as belonging to a particularcommunity. So also the right that is protected and guaranteed by article12 (2) is the personal right of every individual citizen, qua citizen, andnot as belonging to a particular community. The rights of a communityor caste or of persons professing a particular religion do not come intothe picture at all. It is of relevance to note that in the 1972 Constitution,
scRamupillai V Minister of Public Administration. Provincial Councils
& Home Affairs and others (Tambiah, J.)
in Article 16 (2) (a) there was a reference to “group rights” which wasomitted in the 1978 Constitution.
“It (Art. 12(1)) only means that all persons similarly circumstancedshall be treated alike both in respect of privileges conferred andliabilities imposed and there shall be no discrimination between oneperson and another, if, as regards the subject matter of the legislationor administratioin, their position is substantially the same.”
(per Sharvananda, J. in Palihawadane v. Attorney-General (1).)
The Indian Constitution has a specific provision (Art. 16 (1)) guaranteeingequality of opportunity in matters relating to employment or appointmentto any office under State and by Art. 16 (2) prohibits discrimination inemployment or appointment to an office on grounds of religion, race,etc. Our Constitution does not have a similar provision. But there aredecisions of this Court that though Article 12 does not specifically mentionthe right of equality of opportunity in matters of public employment, itis an instance and a necessary incident of the application of the conceptof equality enshrined in Article 12; that Article 12 does not confer a rightto obtain State employment: it only guarantees a right of equality ofopportunity for being considered for such employment (Palihawadana’sCase (supra), pp. 5,6, & 11; Weligodapolav. Secretary, Ministry of HomeAffairs, (17)
“Equality of opportunity in matters of public employment cannot beconfined to the initial matters prior to the act of employment, butinclude other matters relating to employment, such as promotionto selected posts.”
(Seervai, Constitutional Law of India, Vol. 1, 3rd Edn., p. 423)
Seervai (supra), p. 422, discussing the right to an equality of opportunityto obtain public employment under Art. 16 of the Indian Constitution saysthat Art. 16 “does not exclude selective tests, nor does it preclude thelaying down of qualifications for office, not only of mental excellence,but also of physical fitness, sense of discipline, moral integrity, loyaltyto State etc. Where the appointment requires technical knowledge,evidence of such knowledge may be required. Further the Governmentis entitled to have regard to the character and antecedents of candidatesfor appointment to public office.”
Sri Lanka Law Reports
(1991) 1 Sri L.R
The State, therefore, is not prohibited from prescribing reasonable rulesfor promotion in the Public Service. The significance of the words “orany one of such grounds” in Article 12 (2) is that not one of the enumeratedgrounds namely, race, religion, language, caste, etc., shall be a groundof preference or disability for promotion in the Public Service.
Now, what does the Public Administration Circular, No. 15/90, purportto do? It says that promotions in the Public Service shall be made onthe principle of ethnic ratio, while maintaining the merit principle. Promotionsare to be made on the national ethnic proportion, that is, Sinhalese 75%,Tamils 12.7%, Indian Tamils 5.5%, Muslims 8%. It, therefore, classifiescitizens seeking promotion to higher posts on the basis of communityand allocates definite and fixed proportions to the different communities.It is a scheme of distribution of promotions community wise and imposesa pre-determined quota or reservation in favour of each ethnic group.
Take the case of the petitioner in this case and let us see the effectand operation of the Circular on him. He has been 51 years in the PublicService. He has been given his due promotions and increments. Thathe is the 10th in the list of seniority is not disputed; his eligibility andsuitability for promotion is also not disputed. There are 24 vacanciesas Assistant Director of Customs, 20 of which are reserved for theSinhalese and 4 for the Sri Lanka Tamils. He is the 5th Tamil in thelist of seniority. The petitioner may be more eligible and more suitablethan one or more in thr group of 20 Sinhalese and even be senior tothem and yet will be denied promotion because he is not a Sinhalese.What is the reason for this denial of promotion except that he is a SriLanka Tamil and not a Sinhalese.Assume there were Muslim and Indian Tamil applicants as well. The24 vacancies would then be distributed as follows; Sinhalese 18, Tamils3, Muslims 2 and Indian Tamils 1. The 4th Tamil applicant for promotionas Assistant Director may be more eligible and suitable than the twoMuslims and the one Indian Tamil applicants, but nevertheless he cannotget the vacancies reserved for then, for no fault of his except that heis a Sri Lanka Tamil and not a member of the aforesaid communities.Likewise, the 3rd Muslim applicant may be more eligible and suitablethan one or more of the 3 Sri Lanka Tamil applicants. And yet, he cannotget the vacancies reserved for them because he is not a Sri Lanka Tamil;nor can he get the vacancy reserved for the Indian Tamil who may be
SC Ramupillai V Minister of Public Administration, Provincial Councils
& Home Affairs and others (Tambiah, J.)43
less eligible and suitable because he is not an Indian Tamil. The 2ndIndian Tamil applicant also may find himself in a similar predicamentvis-a-vis the ethnic quota reserved for the Sri Lanka Tamils or theMuslims. So also the 19th Sinhalese applicant may be more eligible andsuitable for promotion and yet he cannot get any of the vacanciesreserved for the minorities merely because he is not a Sri Lanka Tamil,Muslim or an Indian Tamil.
The Superintendents of Customs form a single class. The gravemenof Article 12 is equality of treatment. All persons within this class musthave an equality of opportunity of advancement of their career in thePublic Service irrespective of race, caste, religion etc. The impositionof a pre-determined quota or reservation in favour of an ethnic groupin the matter of promotion in the Public Service violates the principleof equality of opportunity in public employment and offends Article 12(1). The provision in the impugned Circular which classifies citizensaccording to their race for the purpose of promotion in the Public Service,which allots promotional positions in definite and fixed proportions todifferent races and which will operate to deny promotions to more eligibleand suitable applicants for promotions and let in others with less eligibilityand suitability on the ground that they belong to a particular community,discriminates against citizens on the ground of race and therefore violatesArticle 12 (2) of the Constitution.
I make order that any purported appointments as Assistant Directorsin the Unified Customs Service in terms of Public Administration Circulars,Nos. 15/90, 15/90 (i) and 15/90 (ii) are violative of the petitioner’s rightto equality as enshrined in Articles 12 (i) and 12 (2) of the Constitution.The petitioner has the right to be considered for promotion as AssistantDirector of Customs without reference to national ethnic quotas mentionedin the aforesaid Circulars, and I direct the Respondents to consider thepetitioner’s application for promotion accordingly. There wil be no orderfor costs.
I have read in draft the clear and comprehensive judgment of my brotherFernando, J. The relevant facts have been set out by him and I agreewith his reasoning and conclusions. However, I would like to add justa few words of my own, in view of the importance of the issue involved.
Sri Lanka Law Reports
(1991) 1 Sri L.R
The question that directly arises for our consideration is whether theapplication of the “principle of ethnic ratio” (formulated in the CircularsP4, P5and2R1 issued by the Ministry of Public Administration, ProvincialCouncils and Home Affairs) in the matterof the promotion of the petitionerfrom the grade of Superintendent (Customs) to the post of AssistantDirector of Customs is violative of the Constitutional guarantee enshrinedin Article 12 of the Constitution. Article 12 (1) sets out the general principleof equality of treatment”, that is to stay, all persons similarly circumstancedmust be treated alike in the matter of privileges conferred and liabilitiesimposed. Article 12 (2) is but a facet of the principle embodied in Article12 (1). It is a special application of 12 (1) in specific areas which forhistorical, cultural, socio-economicorother reasons, have acontemporaryrelevance and significance. Articles 12 (1) and 12 (2) must thereforebe read together.
Although our Constitution does not have a specific provision relatingto equality of opportunity in public employment as the Constitution ofIndia has (Article 16) yet, as stated by Sharvananda, J. (as he then was)in Perera vs. University Grants Commission, (2) “equality of opportunityis only an instance of the application of the general rule of equality laiddown in Article 12”. The petitioner is plainly not claiming a right to an”appointment” but the right to equality of opportunity in the matter ofpromotion in the public service, where he has served for well over threedecades.
It is common ground thatthe peitioner along with 52 other superintendentswere interviewed for the post of Assistant Director of Customs. Thereis little doubt that the petitioner along with his brother officers holdingthe posts of Superintendent form one “class” or “category”. No submissionto the contrary was made before us. In other words, they are personssimilarly situated and must be treated equally in the matter of promotionto the higher grade, viz. post of Assistant Director of Customs. Asobserved by Khanna, J. in his dissenting judgment in State of Keralavs. Thomas, (9) “equality of opportunity in matters of promotion mustmean equality between members of the same class of employees andnot equality between members of separate, independent classes.
When these public officers who constitute but a single class, reach thestage of promotion to the next grade, could their promotion be regulatedby a new criterion based solely on race, and what is more, a criterionquite unrelated to the maintenance of efficiency in the service to which
scRamupillai V Minister of Public Administration, Provincial Councils
& Home Affairs and others (G. P. S. de Silva J.)
they belong? I think the answer clearly is that this cannot be done withoutinfringing or at least restricting the fundamental right guaranteed byArticle 12 of the Constitution. It amounts to a constitutionally unwarranteddiscrimination on the ground of race, and race alone. There can be no”classification” based solely on a ground prohibited by Article 12 (2)unless it could be shown that such classification is meaningfully relatedto the object to be achieved by the classification. This, the respondentshave failed to do, there being no material before us to show that the”principle of ethnic ratio” is related to the duties to be performed by theAssistant Directors of Customs.
I accordingly hold that the application of the “principle of ethnic ratio”,in so far as the facts and circumstances of the present case areconcerned, would infringe or at least restrict the rule of “equality oftreatment” protected as a fundamental right in our Constitution.
The facts, pertaining to this application are detailed in the judgementof my brother Mark Fernando J. I am in agreement with his finding thatthe provisions of the paragraph 3 of the Public Administration CircularNo. 15/90, (p4) dated 5/03/1990 are violative of the Petitioner’s Rightsto Equality under Art. 12 (1) and 12 (2) of the Constitution.At the commencement of his submissions the Learned Attorney Generalstated that he would be advising the Government that, in the contextin which it appears, the word “MUSLIM” in paragraph 2 (1)(g) of thiscircular is incongruous, and that he would be suggesting that that wordbe replaced by “Sri Lankan Moor” or some other word or phrase whichwould indicate race, as opposed to religion for the reason that, the rulescontained in P4 were meant to provide for the observance of dueproportions according to the racial distributions prevailing in the Island,the Provinces and in the Districts, as the case may be, in the matterof the recruitment and promotions in the Public Service, the ProvincialServices and in the Public Corporate Service respectively.
The word “MUSLIM” does mean and has referrance to a person whohas ‘RECEIVED, ‘EMBRACES’ or follows Islam. Islam is the name ofthe religion and a Muslim is an adherent of Islam. Taken in its literal
Sri Lanka Law Reports
(1991) 1 Sri L.R
Dictionary meaning, Muslim will denote the religion and not the raceof the individual.
However in Sri Lanka, and that too in post World War I period, the wordMUSLIM has been used by the Administration and even by the Legislature,to mean and include the Ceylon Moors and the Ceylon Malays, evenwhen dealing with subjects pertaining to race.
In the 19th century and thereafter up to about the end of World WarI the word used by the British Government to refer to the followers ofIslam in Ceylon was ‘MOHAMMEDAN”. Thus we have the MohemmadenCode of 1806, the preamble to which is most enlightening. It reads asfollows:-
“Extract from the Minutes of the Council held at Colombo on theSixth day of August 1806”.
Present:- His Excellency the Governor.
The Hon: Alexander Johnstone Esquire.
Robert Arbuthnot Esquire.The Chief Justice submits to the Governor in Council the Code ofthe Mohammedan Laws, observed by the Moers in the Provinceof Colombo and acknowledged by the Head Moormen of the Districtto be adopted to the present usage of the caste. Resolved on themotion of the Chief Justice that the same be published, and thatthey be observed throughout the whole of the Province of Colombo.’A true Extract’ – John Deane (Sec: of the Council)
Published on the Order of His Excellency The GovernorRobert Arbuthnot. (Chief Sec: to the Governor)
SPECIAL LAWS CONCERNING tfOORS OR MOHAMMEDANS.This was followed in 1886 by the Ordinance No: 8 of 1886 (as amendedby Ord: No. 2 of 1898) entitled:-
“An Ordinance to provide for the Registration of MohammedanMarriages contracted in the Colony.”
scRamupillai V Minister of Public Administration, Provincial Councils
<S Home Affairs and others (Jameel, J.)47
In 1901, underthe Education Ordinance, then prevailing, the Regulationsframed in respect of Grant In Aid Schools, provided for Grants to ‘RomanCatholic’ schools and ‘Mohammedan’ schools.
At that stage those referred to as ‘Mohammedan’ were the Ceylon Moorsand the Ceylon Malays, because they had a common religion – ISLAMwhich also gave them their Personal Laws.
It is in the matter of their Personal Laws that the Muslims (That is tosay followers of Islam, be they Ceylon Moors, Ceylon Malays, SinhaleseTamils or any other race or Nationality) in Sri Lanka are governed bythe Muslim Law, and that too by the Law of the SECT to which theybelong. In all other matters, and especially in matters provided for byStatute the Muslims, as in the case of everyone else is governed bythe Statute. This would apply equally to all rules having the force of Law.
In the matter of the interpretation of any provision of these PersonalLaws recourse must be had to the principles of that Law, while for theinterpretation of our Ordinance and other Enactments the general principlesof interpretation of statutes and our Interpretation Ordinance will haveto be applied. Thus De Sampayo J in Khan vs. Marikar (36) statedthat:-
”lt is true that the Mohammedan Code of 1806 entitled ‘The Special Lawsconcerning Maurs and or Mohammedans’ was to be observed in theProvince of Colombo. But it is clear that the words Maurs andMohammedans were are used as synonymous terms. When by theOrdinance no. 5 of 1852 the Law was extended to the whole Island theonly word used was ’Mohammedan’ and the Ordinance No. 8 of 1888which provided a system of Marriage Registration for Mohammedansis still plainer and section 17 speaks of ‘Persons professing theMohammedan Faith’ The Mohammedan Law has certainly been appliedto the Malays and to immigrants from India known as Coast Moormen.The fact is that Mohammedan Law is based on Religion and is applicableto all followers of Islam. Even before Ord. No. 5 of 1852 the SupremeCourt had applied it to the Moors at Kandy observing that they weregoverned by their own Law and Customs of inheritance, and marriagewhich was founded on their Religion.” (Saibo vs. Ahamat) (37). InNarayanan vs. Sareeumma (38) De Sampayo J. observed as follows:-
”lt is urged that the Special Laws governing Mohammedans in Ceylon
Sri Lanka Law Reports(1991) 1 Sri L.R
are only concerned with such matters as Inheritance and MatrimonialAffairs, and that where there is a CASUS OMISSUS the Roman DutchLaw should be applied even to the Mohammedans. I cannot a acceedto that proposition . .
(see also – 1 S.C.C. 80 and 2 Bal. 188)
Even in interpreting a Sri Lanka Statutary Provision on Muslim Lawrecourse should be had to the principles enshrined in Islamic Law orShariat.
Sharvananda C.J. in Ghouse vs. Ghouse (39) has stated:-
“. . .The Adoption Ordinance No. 24 of 1941 enables any persondesirous of being authorised to adopt a child, to apply for an AdoptionOrder. Hence a Muslim too is competent to apply for an AdoptionOrder, and can adopt children in terms of that Ord…. In my viewsince Section 6 (3) of the Adoption Ord. does not supercede orabrogate the Muslim Law of Intestate Succession, which does notrecognise an adopted child for the purposes of intestate succession,the Respondent’s claim to succeed to the intestate Estate of hisadopting parents, being based solely on that section 6 (3) of theAdoption Ord. cannot be sustained and therefore fails.”
The principle that could be extracted from these decisions is that in allmatters wherein the Muslim Law is not made applicable to the Muslimsof Sri Lanka (and this includes the Rights under Art. 12 of the Constitutionviz-a-vis this Directive of National Policy contained in P 4) and framedunder the Establishment code) the general rules of interpretation willapply.
By about the end of the second decade of this Century, the replacementof the word ‘Mohammedan’ by the word ‘Muslim’ becomes apparent.For instance we have ‘The Muslim Marriage and Divorce RegistrationOrdinance’ of 1929. and The Muslim Intestate Succession and WakfsOrdinance No. 10 of 1931.
In these two instance the word ‘Muslim’ is clearly used to indicate Religion.On the other hand in the Regulations framed under the EducationOrdinance No. 31 of 1951 (Cap. 81 L.E.C. – 1956) (and contained inVol. Ill – 1956 of the Subsidiary Legislative Enactments – 1956) it hasbeen provided in Sections 4 (1) and 4 (2) that in all primary schoolsin the Island that the Medium of Instructions in the school shall be
scRamupillai V Minister of Public Administration, Provincial Councils
& Home Affairs and others (Jameel, J.)
Sinhalese or Tamil, as Ihe case may be, if the number of childrenattending all classes in that school is 15 or more, Sinhalese or Tamil.It is the racial composition of the school children that determined theMedium of Instruction of that school. However by sub-section (4) of thatsame section provision is made to grant a choice to these children, orrather to their parents, of English, Sinhalese or Tamil as their Mediumof Instructions, if in all the classes in that school there are at least 15children who were either Muslims or who were neither Sinhalese norTamil.
Moving on to another sphere of activity in our country, we have theSinhala, Tamil and Muslim Services of the Sri lanka BroadcastingCorporation. Also there used to be a scheme of recruitment of DistrictRevenue Officers on the basis of area, namely The ’Kandyan or Up-country’ area, the ‘Low -country’ area and the ‘Tamil speaking areas’.
Official designations have changed from time to time. Thus the NewYears day orthe ‘Aluth Avuruddha’ in 1978 (14/04/78) was officially calledthe Sinhala and Hindu New Year while the corresponding day in thecurrent year (14/04/91) is designated as “The Sinhala and Tamil NewYears Day”.
In all these instances in the recent past the Malays have been includedin the category ‘MUSLIMS’. Even when minority interests had to berepresented in Parliament we have had both Moors and Malays beingnominated to represent Muslim Intrests. For example:- The late Hon.Dr. T.B. Jayah;the late Dr. M.P. Draahmanandthe late Mr. M.D. Kitchilanalong with the late Sir. Razik Fareed and Dr. Badi-ud-Din Mahmud, whowere Moors.
Thus in Sri Lanka both for Administrative purposes and in Legislationthe word “MUSLIM” has been used to mean and include Ceylon Moorsand Ceylon Malays. That was the Ethnic Grouping known and adoptedhitherto. Although this word Muslim does not denote anything more thana religious adherence yet in the context of the realities that existed, areading of this word in P4 would have left the impression in the mindof the reader that both Malays and Moors were included.
It is in confirmation of this usage that in the Public Administration CircularNo. 15/90 (1) – P5 – dated 25/03/90 in paragraph 3, the Executive hasstated that for the purposes of the circular P4 there should be includedin the 8% allotted to the ’Muslims”, mentioned therein, the “Malays’ so
(1991) 1 Sri l.RSri Lanka Law Reports
that it will be a combined allotment to the Moors and the Malays asMuslims.
It is significant that one of the other groups mentioned both in P4 andP5 is “Persons of Indian Origin”. In this the characteristic highlightedis Origin and not religion nor race. All persons of Indian Origin be theyadherents of Buddhism, Christianity, Hinduism or Islam or be they Sikhsor Malayaiees, they are to be included in this group, which is allotted5.5%.
We have in our Statute Rooks an Ordinance entitled Estate Labour(Indian) Ord. no. 13 of 1889. In that Ordinance in its interpretation section(Sec. 3) the word ‘LABOURER’ is defined as:-
‘Means any labourer or Kangany (Commonly known as IndianCoolies) whose name is bourne in an Estate Register and includesMuslims commonly known as TULICANS’.”
The third category schedu!ed in both P4 and in P5 is the TAMILS’ andis given 12.75% on the National figures. This category will not includeIndian Tamils but only Ceylon Tamils be they Hindu, Christian, Muslimor Buddhist.
The fourth group is allotted 75% and in that group, as per P5, thereshould be entertained all minorities other than “Tamils, Persons of IndianOrigin and Muslims”. Thus the Sinhalese, whatever may be his religionand all other minorities whatever may be their religion, and who are notprovided for in the other three categories aforesaid, and who are not’Persons of Indian Origin’ will come within this large group.
It is to be noted that the total of these percentages is 101.25%. Perhapsthe 2% leverage for adjustments referred to in paragraph 2 (1(g) in P4has some relevance to this excess.
P4 read with P5 does set cut the factual position prevailing in Sri Lanka,though no doubt the word ‘MUSLIM’ used here does carry the Dictionarymeaning of ‘ A person who follows Islam.’
I have had the advantage of perusing the Judgement of His Lordshipthe Chief Justice, and for the reasons stated by His Lordship, with which
SC Ramupillai V Minister of Public Administration, Provincial Councils
& Home Affairs and others (Fernando, J.)55
I am in entire agreement; I agree with the orderproposed by His Lordshipthe Chief Justice.
I too would direct that each party must bear his own costs.FERNANDO. J.,This application was referred to this Bench of seven Judges as it involveda question of general importance as to the constitutionality of ethnicquotas in employment.
Public Administration Circulars No. 15/90 dated 9.03.90, No. 15/90(i)dated 15.03.90 and No. 15/90 (ii) dated 15.06.90, were issued in pursuanceof a Cabinet decision applicable to all appointments and promotions atall levels in the public sector, (in its widest sense, consisting of the publicservice, the provincial public service,public corporations, Government-owned companies and business undertakings, and universities); theyset out a general principle that recruitment and promotions, at thenational, provincial and district levels, shall be made strictly in accordancewiththe respective (i.e national, provincial anddistrict) ethnic proportions.They also provide that all appointments and promotions shall be freeof political patronage, and (subject to the ethnic quotas) shall be basedon merit. The following provisions of the Circular are relevant to thematters arising lor our decision:
“The composition of the ethnic ratio for the Sinhalese communitywill be 75% of the total number of vacancies. Tamils, persons ofIndian origin and Muslims shall be selected on the ratio of 12.7%,5.5% and 8% respectively. However, if there is a difficulty in determiningthe exact numbers, a variation of minus or plus 2% could bepermissible.” (These percentages total to 101.2%)
“The 75% allotment of the total number of vacancies for the Sinhalacommunity (as set out above) will include all minorities other thanTamils, persons of Indian origin and Muslims. Malays will be includedin the 8% allotted to Muslims. ” (It is common ground that it is incorrectto treat “Muslims” as constituting an ethnic group.)
“The ethnic ratio in exceptional situations may not be applicable,if the total number of promotional positions available are few innumber (e.g. below four in number) and therefore not facilitating such
Sn Lanka Law Reports
(1991) 1 Sri LR
a ratio application. In such cases merit will be the sole criterion ofselection. Every such c ase should be indicated to the Committeeset up under para 8 ..”
The Secretaries to Ministries, Chief Secretaries to Provincial Councilsand other high officials to whom the Circulars are addressed have beenspecially directed –
“. . .to personally ensure the effective and fair implementation ofthe above Circular. No deviation therefrom will be permitted. Anyproblems, issues or acts of non-compliance should be immediatelybrought to my notice without delay.”
The Petitioner, after many years of service in the Customs Department,is now a Superintendent of Customs. In March 1990, in response toan internal notice calling fo*’ applications from officers in the grade ofSuperintendent to fill vacancies in the grade of Assistant Director ofCustoms, 53 eligible Superintendents applied; among these there areonly Sinhala and Tamil officers. According to the Petitioner, there are22 vacancies for which these applicants are entitled to be considered;if’the Circulars are applied, 19 Sinhala officers and 3 Tamil officers willbe appointed. (It is common ground that in applying the Circular, if thereare no eligible applicants from any ethnic group, the entitlement of thatgroup will be distributed, proportionately, among the other ethnic groups;and that although these vacancies will be filled from within the service,a fresh letter of appointment, as Assistant Director, will be issued tosuccessful applicants, so that the selection involves a promotion as wellas a new appointment.) In terms of the 1968 Minute of the UnifiedCustoms Service, previously the relevant criteria for such promotionswould have been seniority and merit alone. There is some controversyas to the precise numbers (of applicants and vacancies) involved, butthis does not affect the legal principles applicable.
The Petitioner has sought relief from this Court fearing an imminentinfrigement of his fundamental right to equality under Article 12; accordingto him, he is the tenth officer in order of seniority, but among these ten,he is the fifth Tamil officer If the previous practice is followed, theprobability that he will be promoted is high, in that he would not beoverlooked unless thirteen junior officers were to be selected (as beingmore meritorious) in preference to him. If the Circular is applied, evenif – from the point of view o‘ merit – he is more deserving than all theSinhala officers, and all except three of the Tamil officers, he would
scRamupillai V Minister of Public Administration, Provincial Councils
& Home Affairs and others (Fernando, J.)
nevertheless not be selected. It is therefore common ground that hischances of promotion are thus much less bright under the new scheme.Looked at from another point of view, under the old scheme he waseligible to be considered, equally with all the others, for 22 vacancies;under the new scheme he is eligible to be considered for only threevacancies, while his Sinhala colleagues officers are eligible to beconsideredforl9 vacancies. From yet another angle, ifafter21 vacanciesare filled the Petitioner has not been selected, when the 22nd vacancyis being considered his selection will depend, not on merit, seniority orother objective criteria, but on whether 3 Tamil officers have alreadybeen selected; if so, he will not be appointed, and instead a Sinhalacolleague will be appointed. Clearly such selection will be on accountof race. The Petitioner does not claim a right, or a fundamental right,to be promoted, but only a right to be considered for promotion; andin respect of such consideration, he says, Article 12 entitles him to beconsidered equally with other eligible officers; apart from merit andseniority, the criterion of race or ethnicity cannot be taken into account.Since the implementation of the Circulars will significantly diminish hischance of being considered for promotion, his right of equality, or equalityof opportunity, will be abridged or impaired, even though not completelydenied.
Secondly, learned Counsel for the Petitioner submitted that the Circularsdid not contain a proper classification; the criteria specified were notall “ethnic”, but a mixture of ethnic and otherfactors; there were anomaliesand ambiguities, and it did not provide for persons of mixed parentage.
Finally, apart from inconsistency with Article 12, it was contended thatthe Circulars were not authorised by Article 55 (4).
The question whether the Circulars contravene Article 12 requiresconsideration of the principle of equality enshrined in Article 12, andthe circumstances in which affirmative action is permitted, despite thatprinciple. These matters have been judicially considered by the SupremeCourts of the United States, India and Sri Lanka, and reference to someof these decisions is useful.
In Regents of University of Californiav. Bakke, (10) awhite male, whoseapplication to the State medical school was rejected, challenged the
(1991) 1 Sri L.R
Sri Lanka Law Reports
legality of the school’s special admissions program, under which 16out of 100 vacancies were reserved for “disadvantaged” minority students.In a 5-4 decision, the majority held that this special admissions programwas illegal; but that race may be one of a number of factors consideredin deciding on admissions. Since it was not established that the applicantwould have failed to gain admission in the absence of the specialadmissions program, he was held entitled to be admitted.
The factual background in which the constitutionality of affirmative actionwas considered is illuminated in the minority judgments, particularly thatof Justice Marshall on whor e judgment I rely extensively. Three hundredand fifty years ago, the Negro was abducted to the North Americancontinent in chains, to be sold into- slavery; then deprived of all legalrights; penal sanctions were imposed upon anyone attempting to educatehim; he could be sold away from family and friends, at his owner’s whim.Conscious of this inhumanity, Thomas Jefferson submitted a draft ofthe Declaration of Independence, in which he included among thecharges against the King ‘hat he:
“. . .has waged cruel war against human nature itself, violating itsmost sacred rights o‘ life and liberty in the persons of a distantpeople who never offended him, captivating and carrying them intoslavery in another hemisphere . . .” (388)
However, colonists themselves were implicated in the slave trade, andhad this charge been included they could not have justified slavery afterindependence; accordingly it was not included in the Declaration ofIndependence, which nevertheless proclaimed the self-evident truth thatall men are created equal and endowed by their creator with certaininalienable rights. Although;! was laterassertedthat “distinctions betweencitizens solely because of their ancestry are by their very nature odiousto a free people whose institutions are founded upon the doctrine ofequality” (Hirayabashi, (1) compromised this principle of equality withits antithesis: slavery. While guaranteeing their own freedom andequality, the colonists ensured the perpetuation of a system that depriveda whole race of their rights: “We the people” did not include personswhose skins were the wrong colour. It was not Colonists, Constitution- makers, and Congressmen alone: the position of the Negro slave asmere property was confirmed by the Supreme Court itself (Dred Scott,(19)), holding that the Missouri Compromise, which prohibited slavery,was unconstitutional because it deprived slave owners of their property
scRamupillai V Minister of Public Administration, Provincial Councils
& Home Affairs and others (Fernando, J.)
without due process: a slave was property, and “the right to traffic init, like an ordinary article of merchandise and property, was guaranteedto the citizens of the United States”; Negroes were not intended to beincluded as citizens under the Constitution but were “regarded as beingsof an inferior order.,. altogether unfit to associate with the white race,either in social or political relations; and so far inferior, that they hadno rights which the white man was bound to respect.”
Almost a century later, after the Civil war, the Negro was officiallyemancipated. The iron chains of slavery were, however, replaced bythe fettors of a system of laws imposing disabilities and burdens, inrespect of rights of property, contract and the franchise, so severe thatfreedom ceased to have any real value (Slaughter-House Cases (20).Congress did try, but unsuccessfully, to use its powers to promote racialequality; the provisions of the Civil Rights Act of 1875 which made ita crime to deny access to inns, public conveyances, theatres and otherplaces of public amusement, were struck down by the Supreme Court,which held (Civil Rights cases, (21) that the 4th Amendment gaveCongress the power to proscribe only discriminatory action by the State.(This view of fundamental rights has, despite obvious differences in thecorresponding Constitutional provisions, been too readily echoed insome of ourown decisions, e.g. Goonewardenev. Perera (22). The Courtruled that Negroes excluded from public places suffered only an invasionof their social rights at the hands of private individuals, and Congresshad no power to remedy that; since beneficent legislation had removedthe chains of slavery, the stage had been reached when the Negro ceasedto be ” the special favourite of the laws” In Plessy v. Ferguson (23)a Louisiana law requiring “equal but separate” accommodation for whitesand Negroes was upheld: the 14th Amendment was not intended “toestablish distinctions based upon colour, or to enforce social, asdistinguished from political equality, or a commingling of the two racesupon terms unsatisfactory to either”. Segregation was extended toresidential areas, parks, hospitals, theatres, waiting rooms, bathrooms,phone booths, children’s text books, and prostitutes. An 1898 parodyof these “Jim Crow” laws suggested that there should be a Jim Crowsection of the Jury box, a Jim Crow dock and witness stand, and a JimCrow Bible for coloured witnesses to kiss: and, says Justice Marshall(393), the irony was that before many years had passed almost all thesesuggestions, derisively made, had been implemented, including the JimCrow Bible. The Equal Protection clause was “virtually strangled ininfancy by post-civil-war judicial reactionism” (291). As late as 1908 the
(1991) 1 Sri L.R
Sri Lanka Law Reports
Supreme Court upheld a State criminal conviction against a privatecollege for teaching Negroes together with whites (371).
Not until Brown v Board of Education (24) was the odious “separatebut equal” doctrine repudiated; even then inequality was not eliminatedwith all deliberate speed; “in 1968 and again in 1971 we were forcedto remind school boards of their obligation to eliminate racial discriminationroot and branch. A glance at our docket and at dockets of lower courtswill show that even today officially sanctioned discrimination is not athing of the past” (327). Even in the 1970’s, minorities were yet strugglingto overcome prejudice; “members of various religious and ethnic groups,primarily but not exclusively of Eastern, Middle and Southern Europeanancestry, such as Jews, Catholics, Italians, Greeks, and Slavic groups,continue to be excluded from executive, middle-management, and otherjob levels because of discrimination based upon their religious and/ornational origin” (292). The minority judgment concludes that the personsfor whose benefit a quota was sought to be reserved in the Bakke case,were a “generation of minority students . . . most of whom were bornbefore or about the time Brown was decided (who) clearly have beenvictims of this discrimination” (371 – 2). These were not superficialimpressions or hasty perceptions; the minority judgment described (395)the indelible legacy of prolonged discrimination; A Negro child has alife expectancy shorter by five years than a white child; its mother isthree times more likely to die of complications in childbirth; the percentageof Negro families below the poverty line is four times greater. . .; theNegrochild reaching working age finds that Americaoffers him significantlyless than his white counterpart; for Negro adults and teenagers, theunemployment rate is twice and thrice that of whites. Although Negroesconstituted over 11% of the population, they were only 1.2% of thelawyers and judges, 1.1% of the engineers, and 2.6% of universityprofessors.
Bakke dealt with a California medical school which reserved a quotaof only 16% for minorities, although Negroes and Chicanos aloneconstituted 22% of California’s population, in this context:
“Until at least 1975, the practice of medicine in this country was,in fact, if not in law, largely the prerogative of whites, in 1950, whileNegroes constituted 10% of the total population, Negro physiciansconstituted only 2.2% … the overwhelming majority of these,moreover, were educated in two predominatly Negro medical schools
scRamupillai V Minister of Public Administration, Provincial Councils
& Home Affairs and others (Fernando, J.)
… By 1970, the gap between the proportion of Negroes in medicineand their proportion in the population had widened: the numbersof Negroes employed in medicine remained frozen at 2.2%, whilethe Negro population had increased to 11.1 %. The number of Negroadmittees to predominantly white medical schools, moreover, haddeclined in absolute numbers during the years 1955 to 1964”. (369)
“The relationship between those figures and the history of equaltreatment afforded to the Negro cannot be denied. At every pointfrom birth to death, the impact of the past is reflected in the stilldisfavoured position of the Negro. In light of ,the sorry history ofdiscrimination and its devastating impact on the lives of Negroes,bringing the Negro into the mainstream of American life should bea State interest of the highest order. To fail to do so is to ensurethat America will forever remain a divided society.” (396)
There was also material (377) which, in the view of the minority, indicatedthat this objective could not be attained by a general preference for theeconomically disadvantaged or for the children of parents of limitededucation. The remedy had to take account of race, just as the problemwas created by race.
Having reviewed the history of the American Negro for 350 years, theminority justifiably concluded (365 – 366, 369 – 371) that there wassubstantial, chronic, minority under-representation, in general, and inthe field of medicine, in particular, and that it was reasonable to believethat this was the product of pervasive past racial discrimination, ineducation, in society generally, and in the medical profession (thoughnot attributable to the University or to Bakke); race-conscious remedialaction was therefore permissible.
The majority, however, took the view that affirmative action based onethnic classifications was permissible only when the burden therebyplaced on others “is precisely tailored to serve a compelling governmentalinterest” (299); moreover, the majority seemed to require provendiscrimination or violations, in the form of clearly determined findingsby legislative, judicial or administrative authorities 301 – 302, 307), andwas not prepared to uphold preferential classifications without such priorfindings (thus closing the door to voluntary affirmative action programs).Although the State has a legitimate interest in ameliorating or eliminatingthe disabling effects of proved discrimination, the majority was not willing
(1991) 1 Sri L.R
Sri Lanka Law Reports
to remedy “the effects of ‘societal discrimination’, an amorphous conceptof injury that may be ageless in its reach into the past.” (307). All nineJudges thus accepted the principle that affirmative action was notinconsistent with the right to equality, and the disagreement was onlyas to the proper mode of proof of discrimination and the nature and scopeof the permissible remedial action.
Subsequent American decisions appear to be more in line with theminority judgment in Bakke. United Steel Workers of America v Weber,(25), considered a private voluntary affirmative action plan, forthe benefitof black workers who had long been excluded from craft unions; inconsequence the percentage of black craft workers was only one-twentieth their percentage in the local labour force. The employer onlyhired persons with prior experience, and accordingly few blacks wereeligible. The plan was designed to break down old patterns of racialsegregation and hierarchy and to open employment opportunities forNegroes in occupations which had traditionally been closed to them,by reserving 50% of the vacancies in craft-training programs for blackemployees until the percentage of black craft employees approximatedto their representation in the local labour force. It was upheld; thereservation did not unfairly deny opportunities to individual whiteemployees, or affect their interests because it did not “require thedischarge of white workers and their replacement with new black hirees,”nor “create an absolute bar to the advancement of white employees”who were eligible forthe remaining places in the craft training programsnot reserved for black workers; further, the plan was a temporarymeasure, and was “not intended to maintain racial balance, but simplyto eliminate manifest racial imbalance.”
Fullilove v Klutznick, (26), upheld the Public Works Employment Actwhich required that at least 10% of federal funds granted for local publicworks projects must be used to procure services or supplies frombusinesses owned by minority group members, defined as United Statescitizens “who are Negroes, Spanish-speaking, Orientals, Indians, Eskimosand Aleuts”. A Committee of the House of Representatives had foundthat –
“The effects of past inequities stemming from racial prejudice havenot remained in the past. The Congress has recognised the realitythat past discriminatory practices have, to some degree, adverselyaffected our present economic system. While minority persons
scRamupillai V Minister o1 Public Administration, Provincial Councils
<S Home Affairs and others (Fernando, J.)59
comprise about 16% of the population, of 13 million businesses only. . .3% are owned by minority individuals . .. .the gross receipts ofall businesses . . .totals about $ 2,540.8 billion, and of this amountonly… 0.65% was realized by minority business concerns. Thesestatistics are not the result of random chance. The presumption mustbe made that past discriminatory systems have resulted in presenteconomic inequities. In order to right this situation the Congress hasformulated certain remedial programs designed to uplift those sociallyor economically disadvantaged persons to a level where they mayeffectively participate in the business mainstream of our economy.”
It was also held that although these provisions would deprive non-minoritybusinesses, innocent of prior discriminatory actions, of some contracts,this was not the objective, but only an incidental consequence of theprogram; “when effectuating a limited and properly tailored remedy tocure the effects of past discrimination, such a ‘sharing of the burden’bv innocent parties is not impermissible.”
In Local 28, Sheet Metal Workers International Association v EqualEmployment Opportunity Commission (27), a District Court, in 1975,had found the Union guilty of discriminatory practices against non-whites,and established a 29% non-white membership goal, based on thepercentage of non-whites in the labour pool of the area, to be achievedby July 1981; the Union was ordered to implement procedures to achievethis goal, to remedy the Union’s pervasive and egregious discrimination.While the imposition of a racial balance, for its own sake, or merelybecause a racial imbalance existed, was not permissible, yet proveddiscrimination justifies a racially classified remedy: “as a temporary toolfor remedying past discrimination without attempting to ‘maintain’ apreviously achieved balance.”
Another Court-ordered numerical affirmative action plan was upheld inUnited States v Paradise (28). For 40 years blacks had systematicallybeen excluded from employment as state troopers in Alabama in violationof the 14th Amendment; in 1972 a District Court imposed a recruitmentquota and directed non-discrimination in employment and promotion;in 1979 no blacks had yet attained the upper ranks of the department.
In 1983 the Court directed that 50% of promotions go to black policeofficers until a given rank was 25% black or until the departmentimplemented an acceptable promotion plan. Some of the relevantconsiderations for determining whether race-conscious remedies may
Sri Lanka Law Reports
(1991) 1 Sri L.R
be judicially imposed are: “the necessity for the relief and the efficacyof alternative remedies, the flexibility and duration of the relief, includingthe availability of waiver provisions; the relationship of the numericalgoals to the relevant labour market; and the impact of the relief on therights of third parties”. It was held that the quota so fixed did notdisproportionately harm the interests or unnecessarily trammel the rights,of innocent individuals, was flexible in application, could be waived ifno qualified black candidates were available, and did not apply if externalforces, such as budget cuts, necessitate a promotion freeze; did notrequire the layoff or discharge of white employees, but instead merelypostponed some white promotions – a “diffuse burden” even less onerousthan the denial of future employment occasioned by a racial hiring goal.
In Johnson v Santa Clare Transportation Agency (29) the Court uphelda voluntary affirmative action plan providing that in making promotionswithin a traditionally segregated job classification in which women hadbeen significantly under-represented, the sex of a qualified applicant maybe considered, among other factors; the plan did not set aside a quotafor women, nor did it fix a date for its termination. The promotion of aneligible woman employee, in preference to a male who had scored twomarks more, was upheld.
In Seneviratne v University Grants Commission (3), several Indiandecisions were discussed with the necessary caution that, unlike theUnited States and Sri Lanka, India has a series of Constitutional provisionsdesigned to identify various categories of “unequal” persons – scheduledcastes, schedu led tribes, and socially and economically backward persons.In addition to these categories, it was pointed out that the Indian SupremeCourt had sanctioned departures from the merit principle in regard toadmissions to educational institutions, upholding reservations for anumber of other classes: including children of armed forces personneland of public officers serving abroad, certain foreign scholars, recentrepatriates and immigrants, and students from districts with inadequatefacilities.
It was held that the imposition of District quotas and an under-privilegedDistricts quota, resulting in the departure from merit as the sole criterionfor University admission, was not violative of Article 12 because pastdiscrimination had been established – namely that the State had for along period lavished much of its resources for the advancement of some(urban) areas to the detriment of other (rural) areas; this had resulted
SC Ramupillai V Minister of Public Administration, Provincial Councils
& Home Affairs and others (Fernando, J.)61
In well-equipped and well-staffed schools in cities and towns, and adistressing and disturbing discrepancy {“a woeful lack of teachers andfacilities”) so far as rural areas were concerned. Thus the Court regardedthe Districts as not being equal in their facilities, so that students fromthe different Districts were not competing on equal terms; being unequal,affirmative action to mitigate the effects of inequality, or preferentialtreatment tothe under-privileged, was justified. Priorfindingsby legislative,judical or administrative bodies were not insisted upon as essential pre-requisities. It is also significant that the imposition of those quotas wasintended to be “a temporary measure, valid for admission in 1979 andto be reviewed thereafter”. While I am in respectful and wholeheartedagreement with the principles applied, I have reservations as to theconstitutionality of that “temporary measure”, a decade later, in today’sknown circumstances. It would seem that the plight of the student inthe “deprived” schools of the “privileged” Districts was not considered,especially viz-a-vis the student in the “good” schools in the less privilegedDistricts; the latter may gain admission, because the cut-off point forhis District is lower, while the former may be shut out despite obtaininga much higher aggregate (cf. Report of thte Presidential Commissionon Youth, Sessional Paper No. 1 of 1990, p 101). The need to focusmore closely on the actual victims o? past discrimination, namely studentsfromthe schools lacking properfacilities, is emphasised in the observationsof the Youth Commission:
“The Commission does not challenge in any way the duty of thesystem to give the poor child from a rural school who does not haveaccess to facilities the opportunity to enter University. But seriousquestions were raised as to whether that was actually happening.There appears to be a wide chasm between the objective and thereality. There was certainly a belief that the district elites benefit morefrom the system than does the rural student. For this reason, theCommission is of the view that any district quota should besupplemented by grading of schools so that the poor child in schoolswith ‘deprived’ facilities – not districts – will be the actual beneficiaryof the system.” (pp 34 – 35; cf also p 92)
Senev/rafneandtheminorityjudgmentinBa/dceappIiedsimilarprinciplesin upholding affirmative action.In Triloki Nath v Jammu and Kashmir, (16), promotions were madeon a communal basis: 50% of the vacancies to Muslims from the entire
Sri Lanka Law Reports
(1991) 1 Sri L.R
State, 40% to Hindus from the Jammu province, the majority of whomwere Dogras, and the remaining 10% to others, purportedly on the basisthat Muslims of the entire State and Hindus of the Jammu provinceconstituted “backward classes” for the purpose of employment. TheCourt called for a report from the High Court as to whether they werein fact backward classes, and whether they were not adequatelyrepresented in the State services; on the material before it, the SupremeCourt held that while all the members of a caste or community may inthe social, economic or educational scale of values at a given time bebackward, and may on that account be treated as a backward class,that is not because they are members of a caste or community, butbecause they form a class. But for the purpose of Article 16(4), indetermining whether a section of the people forms a class, a test solelybased on caste, community, race, etc, cannot be adopted because thatwould directly offend the Constitution. The distribution of posts on theaforesaid communal basis was held to violate Articles 16(1) and (2).Ingenious devices were adopted to circumvent this decision, and inMakhan Lalv Jammu and Kashmir (30), it was held that the State wasobliged to give effect to the previous decision, whether the majority ofthe respondents were parties or not to the previous decision.
In all these cases, it is significant that preferential treatment was upheldonly upon satisfactory proof of past discrimination or present disadvantage;mere perceptions have not been considered sufficient. In Seneviratne,decided before the two month rule in Article 126(5) began to be consideredas not being mandatory, the University Grants Commission and its legaladvisers were able, in a very short time, to furnish the Court with materialcomprehensively explaining the history of the problem, and of thesolutions attempted from time to time, as well as the objectives of thenew admission system and the basis of the classification adopted. Inthe case before us, while it is acknowledged that the proposed ethnicquotas are a bona fide attempt to solve a perceived problem of nationalharmony, the only material furnished by the Respondents was thatcontained in the affidavit ofthe Secretary, Ministry of Public Administration,Provincial Councils and Home Affairs:
“In the recent past the national security ofthe country was threatenedby force and violence. One of the causes of such force and violencewas the perception among minority communities and otherdisadvantageous (sic) groups of this country that they have beendenied of opportunities (sic) to and promotions within the public
scRamupiilai V Minister of Public Administration, Provincial Councils
& Home Affairs and others (Fernando, J.)
service and the other public sector organisations. In order to meetsuch manifestations of force and violence, as an immediate measure,steps were taken to restore peace, order and good Government bythe utilization of law enforcement agencies.
It was further decided that whilst these measures were required todeal with such manifestations of force and violence that a permanentand lasting solution necessarily involved the removal of the rootcauses for such situations. Therefore, as a measure of national policyit was determined that such perception would be f avou rably assuaged,without creating a reverse reaction, by the promulgation of a schemeof recruitment and promotion which manifestly ensured that no ethnicgroup would be denied entry or opportunity of appointment in thegovernment service and other public sector organisations on accountof their ethnicity.
Taking cognizance of the matters set out above, it was considerednecessary that the apportionment of the recruitments andappointments on the relevant ethnic ratio at the national, provincialand district levels on the basis of the (national, provincial and districtpopulation) was the most reasonable criteria that would remedy theunfavourable situation referred above, in order to eradicate theprevailing condition and instil confidence in the minds of the differentethnic groups. Therefore the Cabinet of Ministers approved the saidcriteria and, accordingly the Public Administration Circulars… wereissued.”
This is quite inadequate. It fails to identify the minority groups who hadthis “perception” of discrimination. It does not explain the imposition ofquotas in relation to the majority community. It was submitted at thehearing by the learned Attorney-General that the other groups referredto were disadvantaged sections of the majority community; if that beso, the reservation of a quota for the majority community will not ensurethat those disadvantaged sections will gain any representation, let alonebetter or proportionate representation. In any event, perceptions are notenough: while past discrimination against members of one group maywell have effects which render that group a distinct class (and thereforeno longer “equal”) to other groups, perceptions alone cannot transformequals into unequals. Further, accepting that “a permanent and lastingsolution may necessarily involve the removal of the root causes”, thematerial before us does not suggest that the imposition of ethnic quotas
Sri Lanka Law Reports
(1991) 1 Sri L.R
can be equated to, or will result in, the “removal of the root causes”,Faced with this paucity of material, the learned Attorney-General referred,without objection from learned Counsel for the Petitioner, to the Reportof the Presidential Commission on Youth, but that Report does notsupport the suggestion of any, let alone widespread, ethnic discriminationin public employment, or even a general perception to that effect. Quiteclearly, the tenor of the Report is that the root causes are political,economic, educational, social and other factors, as would appear fromthe extracts cited to us by the learned Attorney-General, supplementedby passages referred to by learned Counsel for the Petitioner in reply:
“There is little doubt that all peace-loving, law-abiding and concernedcitizens will agree on certain fundamental principles which shouldgovern national policy in general:
Equality of opportunity and non-discrimination in every sphere,”(p. xviii)
. .the crucial national problems and issues . . .
(d) employment -. . . equality of opportunity; non – discrimination,particularly in recruitment, “(p. xix)
“The oral and written representations made to the Commissionindicated virtual unanimity that politicisation and perceptions aboutthe abuse of political power are some of the main causes of youthunrest in contemporary Sri Lanka… There were many representationsmade before the Commission which involved perceptions about theabuse of political power in the recruitment, promotion, transfer anddismissal of personnel in the public services. We have no doubt thatthis is a fundamental problem which needs to be addressed in earnest.There was a general belief that such practices are incompatible withthe basic elements of fairness and equity, and that merit and objectivecriteria are not given their due place, having to yield to the ‘chits’ andwhims of individual politicians.” (pp. 1 – 2)
“Depoliticisation of Recruitment – Guidelines:
an open competitive examination:
structured interviews by trained interviewers . . .
scFtamupillai V Minister of Public Administration, Provincial Councils
& Home Affairs and others (Fernando, J.)
interviews to be conducted in the language chosen by thoseto be interviewed;
advertence to to equity considerations pertaining to district,ethnic identity, caste and other relevant factors. It is contemplatedthat the necessary “handicaps” be given on a rational basis afteran yearly review pf past recruitment patterns. ” (pp 6 – 7)
“Youth Representation: There is always hesitancy with regard toevolving “Separate Constituencies” since other interest groups,especially ethnic minorities, may press for such constituencies . .Unlike special constituencies with regard to ethnic and other minorities,this arrangement will not lead to emotive reactions which coulddisturb racial and religious harmony.” ( p 15)
“The Public Service: The previous Chapter (“Depoliticisation ofSociety”) dealt extensively with the most emphatically ventilatedgrievance in respect of the public sector, the selection and appointmentof new recruits. ” (p 22)
“Language Policy: The notion of Kaduwa has two components. Thefirst refers to a pervasive discrimination in allspheresof life, especiallyemployment, directed against monolingual Sinhala and Tamil speakingyouth. The Commission is firmly convinced that such discriminationdoes take place, consciously or otherwise, in all sectors of employment;the private sector, the public sector, the corporation sector and theplantation sector. This stifling of youth is one of the major reasonsfor contemporary youth unrest. ” p (79)
“Bilingualism: The Sixteenth Amendment… gave official recognitionto bilingualism.. .The representations made in Jaffna were unanimousin their belief that the alienation of the Tamil community began in1956 with the Sinhala Only Act. Tamil nationalism in Sri Lanka, asin India, has its roots in perceived liguistic discrimination.” (p. 82)
“Causes of Youth Unrest in the North: Representations by the Tamilyouth in the North and the East when the Commission visited Jaffnamade it clear that the causes of youth unrest in the North and theEast remain primarily political. The Sinhala Only Act of 1956 and
(1991) 1 Sri L.R
Sri Lanka Law Reports
the policies of standardisation of the 1970’s were presented as themajor political reasons leading first to the demand of federalism andthen to a separate state … the language requirements whichprevented employment of particularly Tamil youth in the governmentsector.” (pp 87 – 88)
“Youth Rehabilitation: It is therefore necessary that there benegotiations and strategies developed for a comprehensive plan foryouth rehabilitation. Such a plan should involve employmentprojections, investment for industries and also include plans fortraining as well as counselling. ” (p 91)
“Muslim Youth: With regard to the ethnic quotaforuniversity entrance,the Commission is of the view that “ethnic quotas” are not an answerto Muslim representation in the Universities. The introduction of suchquotas has in the past led to a great deal of unrest and a senseof discrimination. Any advances made by such schemes are negatedby the political repercussions in a multi-ethnic society. For thisreason, the Commiss-on is of the view that admission “handicaps”or quotas, should be targeted more directly towards students fromschools which do not have proper facilities. ” (p 92; cf alsopp 34-35)
This was the Report of a Commission, appointed in 1989 as themanifestations of force and violence were beginning to abate somewhat,to inquire and report on
“(a) the causes for.. .disquiet, unrest and social discontent sometimesmanifesting itself in the rejection of existing institutions and in actsof violence,
any existing or perceived grievance, improper discrimination or lackof equal treatment leading to such attitude, behaviour or conduct,
any inadequacy in the policies and the administration of anygovernmental agency or other public body, educational institute, inthe satisfaction of legitimate youth needs and aspirations.”
The Report does not contain any finding as to actual or perceivedgrievance, discrimination or lack of equal treatment, in regard to anyethnic imbalance in recruitment orpromotion; the extracts quoted however
SC Ramupillai V Minister of Public Administration, Provincial Councils
& Home Affairs and others (Fernando, J.)67
establish serious grievances and discrimination arising from abuse ofpolitical power, political victimisation, and educational and languagepolicies. Ethnic quotas were considered in regard to University admissions,and unhesitatingly rejected. In regard to employment, merit, equality ofopportunity and non-discrimination were stressed; ethnic quotas werenot even discussed, and the consideration of ethnicity, together with otherfactors, was recommended only where equity considerations justify it,and there too on a rational basis after an yearly review of past recruitmentpatterns. This is no more than a plea for affirmative action, where provenpast injustice cries out for remedial equitable preferential treatment. TheRespondents have thus failed to establish the necessary factual basisto justify promotion otherwise than by reference to merit and otherobjective criteria, and the imposition of ethnic quotas is thus contraryto Article 12.
In his written submissions the learned Attorney-General advanced thefollowing additional contentions;
“. . the application of the circular at the point of selection ofappointment –
would operate as a safeguard against deliberate and consciousdiscrimination, based on ethnicity, by the board or panel evaluatingthe respective merits of the applicants,
would ensure that persons who by virtue of past discriminationare placed on an unequal basis when compared with otheraspirants for appointment are not discriminated against by beingtreated as equals . . .
. . .that restricting the application of the above stated principle toinitial recruitment would not suffice to allay the fears of a particularsection of the community, that where there currently exists in anysector of the public service, a preponderance of members of aparticular ethnic community, far in excess of its ethnic ratio, theimbalance would continue for many years more.”
The second and third of these contentions can be accepted as the basisof affirmative action provided there is proof of “past discrimination” andsuch “a preponderance of members of a particular ethnic community,far in excess of its ethnic ratio” as would make it reasonable to believe
68Sri Lanka Law Reports(1991) 1 Sri L.R
that this was the product of pervasive past racial discrimination; thereis no such proof here.
The first of these contentions was pressed in a different form at thehearing. It was submitted that if all citizens had equal access to theeducation and training required to gain the necessary qualifications andexperience for recruitment or promotion, then statistically it was probable,or even certain, that when the public service or public sector wasconsidered in its entirety it would be found to reflect national ethnicproportions; from this, he argued that if in fact the national ratio wasnot so reflected, then that was proof that there had been somediscrimination or impropriety in recruitment or promotion; the impositionof the national ethnic ratio in that situation would rectify an existinginjustice; if on the other hand, the national ethnic ratio was reflected,then it meant that there had not been past discrimination, and the futureimposition of ethnic ratios would cause no prejudice. In short, hisapproach to the question of discrimination was to consider not theindividuaiwho may be passed over for appointment or promotion byreason of the departure from the merit principle, but rather the ethnicgroup to which he belonged; if, considered statistically, the group wasequitably represented, it was not unconstitutional for the individual tobe prejudicially affected. He further submitted that provision would bemade administratively to review the case of any such individual: but ifrelief is given to such individuals, the final result would be that althoughappointment was initially by reference to the ethnic quotas yet ultimatelyall those overlooked on grounds other than merit and other objectivecriteria would be appointed. Such a provision would negate the ethnicratio principle, but it is unnecessary to consider whether it would savethe Circulars, as the Circulars now before us do not contain any suchprovision. Apart from that, the question arises whether Article 12 dealswith equal treatment of groups, or of persons (for citizens). I find itimpossible to read “All persons are equal before the law . . .”and “Nocitizen shall be discriminated against. . .”as requiring equal treatmentof groups, at the expense of individuals; primarily, those words are aptto require equal treatment of the_individual they do not permit aninfringement of the fundamental rights of the individual to be overlooked,on the ground that the rights of his “group” have not been violated. Itmay be that in addition,,.and not in substitution, Article 12 also requiresthat groups be equally treated, but I cannot subscribe to the propositionthat the individual may be discriminated against so long as the groupto which he belongs is found, upon a statistical comparison with othergroups, not to have been discriminated against. Such an approach also
SC Ramupillai V Minister of Public Administration, Provincial Councils
& Home Affairs and others (Fernando, J.)69
gives rise to practical difficulties: is Article 12(3) violated if a person ofa particular race (.or religion or caste) is denied access to the placesor institutions therein mentioned, or does the violation depend on astatistical assessment or comparison of the denial of access to the groupto which he belongs, vis-a-vis other groups? One hesitates even to thinkof the consequences of that approach if applied to other fundamentalrights, such as the right under Article 11. Further, how can this “group”test be applied in the case of a person of mixed parentage? It has beenobserved in Mudiyanse v Appuhamy_(3l), that there is no rule of lawthat makes the offspring of a mixed union belong to the race of eitherthe father or the mother: if such a person is overlooked, is he to findcomfort from the treatment received by the ethnic group to which hisfather belongs, or by that to which his mother belongs? I hold that itis the individual who is the prime repository of the fundamental rightguaranteed by Article 12, and that the violation of his right cannot beexcused or overlooked by reference to the treatment meted out to thegroup to which he is linked by race or ethnicity.
Decisions inolherjurisdictions though extremely helpful, are not conclusive,especially since there are significant differences in the Constitutionalprovisions and their history, as well as in other respects. However, judicialreasoning in regard to the fundamental concept of “equality” is veryrelevant. Fortified by the approach in other jurisdictions, I am satisfiedthat the following principles should guide us in the interpretation of Article12:
1. Article 12(1), read with Articles 3,4 and 12(2), embodies a principleof equality broadly comparable to that recognised in the Constitutionsof the United States and India, but more extensive in nature andscope.
Paragraphs (2), (3) and (4) of Article 12 are essentially explanatoryand declaratory of the principle of equality, and do not add to ordetract from that principle. Article 12(4), in particular, does notauthorise “affirmative action” for women, children and disabledpersons, but out of an abundance of caution declares that nothingin Article 12 shalf prevent affirmative action; apart from proved”inequality”, Article 12(4) would not permit, for example, a quotaof 60% being stipulated for women, in any sphere.
Those paragraphs also emphasise that references to “the law” inArticle 12(1) do not restrict the scope of equality to the provinceof legislation; paragraph (4) emphasises that subordinate legislation
70£>t Lanka Law Repons(1991) 1 Sri L.R
and executive action must also abide by the equality principle;paragraphs (2) and (3} indicate that the non-discrimination principleis binding not only on the “State”, but oh all institutions andindividuals. Citizens shall not be discriminated against by anyone,although the special remedy under Article 126 is only availablein respect of executive or administrative action.
3. The principle of equality requires that equals be treated equally,and that unequals may (and sometimes must) be treated unequally.Affirmative action is preferential treatment: i.e. unequal treatment,of unequals. Affirmative action is therefore not a refinement orextension of, or an exception to, the principle of equality, but itsnecessary corollary; it ;$ applicable whenever “unequals” are beingconsidered.
For the purpose of applying those twin principles, it is necessaryto determine whether persons are equals or unequals. Differencesin respect of “immutable” factors (such as race, ethnicity, ancestry,caste, sex, place of birth) do not per se render persons unequal;nor differences in respect of “acquired” or changeable factors, suchas language, religion and political opinion. Differential treatmentof citizens on account of factors set out in Article 12(2) is, primafacie, constitutionally odious, but there seems to be no suchpresumption in the case of other factors.
However, all differential treatment needs to be justified: there mustbe a legitimate object to be achieved, in relation to which it mustbe shown that there are intelligible and rational criteria which rendera particular individual or group of individuals a distinct “class”.
5. If in relation to a legitimate object, their race reasonably makespersons of one race a distinct “class”, they may be differentlytreated. The same is true of sex, religion, and political opinion. Thusfor the legitimate object of appointing a suitable person as (a) amatron of a girls’ hostel, (b) a preacher or teacher of a particularreligion, or (c) a propagandist or canvasser for a particular politicalparty, it would be permissible to exclude from consideration (a)males, (b) persons of other religions, and (c) persons of opposedpolitical opinions. The basis of classification is the same in othercases: thus in selecting a public relations officer for a TemperanceMovement or an Anti-Smoking League, hard drinkers or habitualsmokers may be excluded.
SC Ramupillai V Minister of Public Administration, Provincial Councils
& Home Affairs and others (Fernando, J.)71
6.1 Even where race would not normally afford a permissible basisof classification, on proof of special circumstances differentialtreatment would be justified –
Race-specific remedies may be devised by legislative, judicial,executive or administrative action, precisely tailored to “makewhole” the actual victims of proven racial discrimination.
Even without antecedent legislative, judicial, executive oradministrative findings, if racial discrimination is proved, thevictims can be afforded relief.
Such relief can be granted even as against respondents whoare not the wrongdoers, and even at the expense of personswho are not the beneficiaries of such discrimination; thusaffirmative action can devise relief for the victims of “societaldiscrimination” (as in the case of the American Negro), therationale being that such victims are not “equal” with others,who have not been handicapped by such discrimination, andare therefore entitled to preferential treatment.
Perceptions and opinions are not enough: discrimination mustbe objectively established to the satisfaction of the Court, byevidence, or by relevant findings of other competent bodies.
the objective of affirmative action is to remedy the presenteffects of past discrimination, and not to perpetuate fixedquotas; preferential considerationforthe victims would generallybe more easily upheld than rigid quotas or reservations (whetherwith “ceilings” or “floors” – upper and lower limits); temporaryor short-term remedial action with appropriate reviewmechanisms are more easily justified.
Racial preference or quotas, for their own sake, are not permissible,because in a free, republican, democracy one citizen is as goodas another, and is entitled to equal treatment, regardless of thegroup to which he belongs. Likewise, racial quotas cannot beimposed simply for the purpose of “correcting” an existing racialimbalance; except perhaps where there is serious, chronic, pervasiveunder-representation (or over-representation) sufficient to raise apresumption of past discrimination.
Sri Lanka Law Reports
(1991) 1 Sri L.R
Affirmative action, where the necessary proof exists, is permissibleboth at the stage of recruitment and promotion; but the proposedremedy would be more strictly scrutinised in the latter case, onaccount of other competing needs and interests; such as theefficiency of the service, the higher levels of responsibility involvedupon promotion, and the legitimate expectations of employees thatmerit and devoted service would be rewarded.
Applying these principles, I hold that the Respondents have failed toestablish any justification for departure from the merit (or merit andseniority) principle in relation to promotions to the grade of AssistantDirector of Customs, that the Petitioner is entitled to be considered forpromotion without reference to the ethnic quotas specified in CircularsNos. 15/90, 15/90/1(i) and 15/90 (ii), and that the application of thoseethnic quotas to such promotion would be in violation of the Petitioner’sfundamental rights under Article 12.
The validity of the Circulars in other situations, particularly in regard torecruitment, does not arise for decision, and I make no finding in thatrespect. The learned Attorney-General invited us to lay down generalguidelines as to nature and extent of permissible ethnic quotas, but apartfrom indicating the broad principles which have guided my decision inregard to the specific matter before us, it does not seem appropriateto accede to this request. What is permissible depends entirely on thefacts of each case, and the necessary factual material is entirely lacking.In any event, this Court has not been empowered (unlike the UnitedStates and Indian Supreme Courts) to make, or cause to be made, thekind of investigation necessary for that purpose into the facts in additionto the material furnished by the parties, nor has it been endowed withthe resources necessary for such an investigation.
Apart from the difficulty of classifying persons of mixed parentage,learned Counsel forthe Petitioner also stressed other practical difficultiesand anomalies in applying the Circulars, arising from the difficulty ofdetermining “race”. “Race” and “ethnic group” may broadly be consideredas interchangeable: as in MillersCoy. Ratnasekera, (32). The KandyanSinhalese and the Sinhalese of the Maritime Provinces were consideredto be of the same “race”, or of the “same stock”: Manikkam v Peter,(33) . in Fernando v Proctor (40) a marriage between Tamils was not
SC Ramupillai V Minister of Public Administration, Provincial Councils
& Home Affairs and others (Fernando, J.)73
considered to be between persons of “different race or nationality”. InPasangna v Registrar-General, (34), it was recognised that the “race”of a Tamil would be Tamil, and “Indian” or “Ceylon” would only be anadjective describing his domicile; however, for the purposes of the Birthsand Deaths Registration Act, the “Indian Tamil” race and the “IndianMoor” race have been recognised as distinct “races”. Apart from suchspecial purposes, our law does not recognise distinctions of “race” or”ethnicity” by reference to such sub-divisions. Indeed, Article 26 mandatesthat “there shall be one status of citizenship known as ‘the status ofa citizen of Sri Lanka'” and that “no distinction shall be drawn betweencitizens of Sri Lanka for any purpose by reference to the mode ofacquisition of such status”. While the Circulars do not sub-divide theSinhala race, they seem to attempt to divide Tamil citizens using – quiteinappropriately – the expression “persons of Indian origin”, which is notan ethnic classification race. Further, the quota allocated to the Sinhalacommunity must also accommodate all other minorities: with the resultthat the latter will be entitled to appointment purely on merit, unrestrictedby ethnic quotas. In the instant case, had there been three Burghersamong the first 19 non-Tamil officers, they would have been entitledto appointment regardless of ethnic proportionality. Finally, “Muslim”describes only a religious group, and does not purport to identify anethnic group. Thus for a variety of reasons, the purported ethnicclassification is thus uncertain, unreasonable and inconsistent, and onthat ground too cannot be sustained.
Learned Counsel for the Petitioner submitted that the Government hadno delegated power to make rules regarding appointment and promotionon ethnic quotas, which, he said, could only be done by an Act ofParliament (subject to Article 12). Secondly, he contended that evenif the Government did have power to introduce ethnic quotas, this couldonly be done by an amendment to the Establishments Code. He reliedon Abeywickreme v Pathirana, (12), where it was held that theEstablishments Code had been duly made by the Cabinet of Ministers,and cited the dictum of Sharvananda, C.J., in regard to the nature ofthis rule-making power, that –
“This power is a legislative power and this rule-making function isfor the purpose identified in Article 55(4) of the Constitution aslegislative, not executive or judicial in character.” (p 138).74
Sri Lanka Law Reports
(1991) 1 Sri L.R
If that contention is sound, this application relates either to an ultra viresact, or to the threatened infringement of the Petitioner’s fundamentalrights by legislative action, and not by “executive or administrative action”,and is thus outside the scope of Article 126. It seems to me that bothlimbs of this contention are not well-founded. There is no doubt thatArticle 55(4) authorised the Cabinet to make the Establishment Code,and to make express amendments thereto; it follows that the Cabinetalso has power to make inconsistent provisions, howsoever described,which would in accordance with the ordinary principles of interpretationoverride, supersede or amend the existing provisions of that Code. Anexpress amendment is not necessary. Since Article 55 (4) empowersthe Cabinet “to provide for all matters relating to public officers, includingthe formulation of schemes of recruitment and … the principles to befollowed in making promotions”, it is open to the Cabinet to make ageneral rule that all recruitment, or promotion, shall be by reference toan ethnic quota (provided it does not conflict with Article 12), and mayfor that purpose amend all existing schemes either expressly or impliedly.In regard to the question whether the Circulars were made in the exerciseof legislative power under Article 55(4), with respect, I cannot agree withSharvananda, C.J., that this power is legislative power. It is, if at all,a power “to make subordinate legislation for prescribed purposes” withinthe meaning of Article 76(3). More likely, it is part of the executive powerwhich the Cabinet exercises, or ancillary thereto. Such powers cannotalways be neatly fitted into the traditional three-fold classification; thereare residual powers which, historically or functionally, are ancillary tothe legislative, the executive, or the judicial power (thus the power ofnominating Judges to hear a case, seemingly executive in character,was held to be an administrative power ancillary to the judicial power;R. v Liyanage, (35). As Professor Wade observes, the boundary betweenlegislative and executive power is not precisely demarcated;
“There is no more characteristic administrative acivity than legislation.Measured merely by volume, more legislation is produced by theexecutive government than by the legislature . . . Administrativelegislation is traditionally looked upon as a necessary evil, anunfortunate but inevitable infringement of the separation of powers. . . There is only a hazy borderline between legislation andadministration, and the assumption that they are two fundamentallydifferent forms of power is misleading.” (Administrative Law, 5th edn,p 733).
scRamupillai V Minister of Public Administration, Provincial Councils
& Home Affairs and others (Fernando. J.)
I am therefore of the view that the Circulars in question have been madein the exercise of executive power, or are “administrative legislation”,and thus constitute “executive or administrative action” within the meaningof Article 126; relief can therefore be granted in this application.
The Petitioner is entitled to a declaration that the application of the ethnicquotas specified in Circulars Nos. 15/90, 15/90(i) and 15/90(ii), to hisapplication for promotion to the grade of Assistant Director of Customswill be in violation of his fundamental rights under Article 12, and thathe is entitled to be considered for promotion without reference to theethnic quotas specified in those Circulars. I direct the Respondents toconsider the Petitioner’s application for promotion without reference tothe said ethnic quotas, i make no order in regard to costs.
DHEERARATNE. J. – I agree.
RAMANATHAN, J. – I agree.
Application allowed.
Ethnic quotas specifiedin impugned Circularsviolate fundamentalrights under Article 12.