RANAWEERA AND OTHERS v. SUB-INSPECTOR WILSON SIRIWARDENA AND OTHERS

026-SLLR-SLLR-2008-V-1-RANAWEERA-AND-OTHERS-v.-SUB-INSPECTOR-WILSON-SIRIWARDENA-AND-OTHERS.pdf


260Sri Lanka Law Reports[2008] 1 Sri L.R
RANAWEERA AND OTHERSv
SUB-INSPECTOR WILSON SIRIWARDENA AND OTHERSSUPREME COURTS.N. SILVA, C.J.
RAJA FERNANDO, J. ANDAMARATUNGA, J.
S.C. APPLICATION 654/2003SEPTEMBER 6, 2005
Constitution – Articles 4(d), 17, 113(A) and 126- To claim exemption of the timelimit of one month for filing an application for violation of Fundamental Rights -Executive or administrative liability – Action taken to implement a valid judicialorder – Civil Procedure Code – Sections 188, 225, 320, 323, 351, 362 -Application for execution of a decree – Human Rights Commission Act No. 21 of1996 – Section 13(1)- The period of time to be excluded in computing the periodof one month – The protection available to an officer executing process issuedby Court and the limits of such protection – lex non cogit ad impossibilia –
Ranaweera and Others v
SCSub-Inspector Wilson Siriwardena and Others261
Applicability – Judicature Act 2 of 1978 – Amended by Act 16 of 1989 – Section52 – Penal Code – Sections 70, 71.
The petitioners have filed this Fundamental Rights Application alleging that theFiscal in executing the writ of possession issued in D.C. Colombo Case No.18542/1, acted in violation of their right to the equal protection of the law. TheSupreme Court has granted leave to proceed for the alleged infringement ofArticle 12(1) of the Constitution. When the application was taken up, the StateCounsel raised the following objections to the petitioners' application:
The matters in the petition do not constitute executive or administrativeaction contemplated in Article 126 of the Constitution.
The petitioners’ application had been filed out of time.
Held:
The act of a Judge in directing to issue the Writ is not a judicial act but aministerial act.
Per Gamini Amaratunga, J. –
"Where an application is made by a person entitled to obtain the writ,setting out the particulars specified in Section 224, there is no room for theCourt to exercise any discretion or to form its own judgment. The Court isobliged to direct the Writ to issue,"
Execution of a Writ is purely a ministerial act done with judicial sanction,but such sanction cannot elevate the Fiscal's acts to the status of judicialacts which do not fall within the phrase 'executive or administrative action’used in Article 126 of the Constitution.
Per Gamini Amaratunga, J. –
"The Fiscal is a State Officer appointed for the purpose of due executionof the powers and the performance of duties of Courts including theservice of process and the execution of decree of Court."
Fiscal in executing a Writ issued by a Court falls within the ambit ofexecutive or administrative action within the meaning of Article 126 of theConstitution and the Supreme Court has jurisdiction to examine such actsunder the fundamental rights jurisdiction of the Supreme Court.
Under the Roman Dutch law, which is the Common Law of Sri Lanka, aJudge enjoys complete immunity from Civil Liability for the acts done in theexercise of his judicial functions. Since judicial acts do not fall within theambit of Article 126 of the Constitution, a Judge is not liable for theviolation of fundamental rights arising from a judicial act.
The protection available to an officer executing process issued by Courtand the limits of such protection are set out in Section 362 of the CivilProcedure Code. However, the latter part of Section 362 sets out thesituations where such an officer may incur liability for acts done inexecuting process issued by Court.
262Sri Lanka Law Reports[2008] 1 Sri L.R
When the general law of the land does not confer full immunity for all actsdone in executing process issued by Courts there is no justification toexclude all such acts from the purview of the fundamental rightsjurisdiction of the Supreme Court. In exercising the fundamental rightsjurisdiction, the Supreme Court is under a duty to act in compliance withthe letter and the spirit of Article 4(d) of the Constitution.
Held further:
The time limit of one month prescribed by Article 126 of the Constitutionfor filing an application for the alleged violation of fundamental rights ismandatory. However, the Supreme Court would entertain an applicationmade outside the time limit of one month provided an adequate excuse forthe delay could be adduced.
The principle lex non cogit ad impossibilia would be applicable to grantrelief to such petitioner.
In a fundamental rights application, the first opportunity available to arespondent to put forward any defence available to him including the pleaof time is the stage at which he has to file his objections after the Courthas granted leave to proceed.
According to Section 13(1) of the Human Rights Commission Act, the mereact of making a complaint to the Rights Commission is not sufficient tosuspend the running time relating to the time limit of one month prescribedby Article 126(2) of the Constitution. In terms of the said Section 13(1) theperiod of time to be excluded in computing the period of one monthprescribed by Articles 126(2) of the Constitution is "the period within whichthe inquiry into such complaint is pending before the Commission".
Cases referred to:
Peter Leo Fernando v The Attorney-General, 1985.
Farookv Raymond 1996 1 SriLR 217.
Cannosa Investments Ltd. v Earnest Perera and others 1991 2 SriLR 214 at221.
Kumarasinghe v The AG, S.C. F.R. 54/82, S.C. Minutes of 6.9.82.
Dayananda v Weerasinghe 2 F.R.D. 292 1983 2 SriLR 85.
Dharmatilaka v Abeynayake S.C. 156.86, S.C. Minutes of 15.12.88.
Perera v The University Grants Commission 1978-79-80 1 SriLR 128 at 138.
Fa/zv The Attorney-General 1995 1 SriLR 372 at 381.
Badoordeen v Dingiri Banda 33 NLR 289.
Edirisinghe v Navaratnam 1985 1 SriLR 100.
Subasinghe v Inspector General of Police SC Sp. 16/99 SCM 11.9.2000.
APPLICATION alleging infringement of fundamental rights.
A.P Niles with Lakshman Amarasinghe and Arosha de Silva for the petitioners.
Sunil Cooray with Muditha Premachandra for the 6th respondent.
Ranaweera and Others v Sub-Inspector Wilson Siriwardena and
SCOthers (Gamini Amaratunga, J.)2^3
M. Gopallawa SC for the 1st to 5th and 8th respondents.
J.C. Boange for the 7th respondents.
Cur.adv.vult.
May 13, 2008
GAMINI AMARATUNGA, J.The petitioners have filed this fundamental rights applicationalleging that the Fiscal of the District Court of Colombo, in executingthe writ of possession issued in D.C. Colombo case No. 18542/L,acted in violation of their right to the equal protection of the law. ThisCourt has granted leave to proceed for the alleged infringement ofArticle 12(1) of the Constitution.
When the application was taken up for hearing, the learned StateCounsel appearing for the 1st to the 5th and the 8th respondentsraised the following preliminary objections to the petitioners'application.
The matters averred in the petition do not constitute executiveor administrative action contemplated in Article 126 of theConstitution.
The petitioners' application has been filed out of time.
Since both objections relate to the special jurisdiction of this Courtunder Article 126 of the Constitution, the Court decided to deal withthe preliminary objections before considering the petitioners'application on its merits. Both parties have thereafter filed their writtensubmissions on the preliminary objections.
Briefly, the petitioners' case is as follows. The 1st petitioner is thewife and the 2nd and the 3rd petitioners are the sons of the judgmentdebtor (7th respondent) in D.C. Colombo case No. 18542/L. Thepetitioners were not parties to that action. In terms of the decreeentered against the 7th respondent, the learned District Judge issueda writ of execution directing that possession of the relevant propertybe delivered to the judgment creditor (the 6th respondent). The 2ndrespondent, the Additional Registrar of the District Court, Colombo,along with the 1st respondent police officer and the 3rd to 5threspondent court officers proceeded to the property described in thewrit for the delivery of possession to the 6th respondent.
264Sri Lanka Law Reports(2008) 1 Sri L.R
According to the petitioners, at the time the Fiscal came to theproperty the 7th respondent judgment debtor was not present in theproperty as he was living elsewhere due to a family dispute. Thepetitioners claim that when the Fiscal came to the property, the 1stpetitioner informed the Fiscal that she and her sons were not partiesto the District Court action and that they held and possessed theproperty on their own right and not on behalf of or under the 7threspondent judgment debtor and as such they were not bound by thedecree or liable to be ejected under the writ. The petitioners state thatwhen the 1st petitioner produced their title deeds in support of theirclaim, the Fiscal did not pay any attention to their deeds, but informedthem that since the petitioners were the wife and the children of thejudgment debtor she (the Fiscal) would proceed to execute the writ.
The petitioners allege that thereafter the Fiscal and the 2ndrespondent police officer allowed the persons brought by the 6threspondent judgment creditor (referred to in the petition as thugs) toenter their premises and to throw out their belongings and demolishthe two buildings situated in the property.
The contention of the petitioners is that when they made their claimbefore the Fiscal, the latter should have refrained from executing thewrit until the petitioners got their claim examined and determined bythe Court which issued the writ. The petitioners contend that theFiscal's act in executing the writ then and there to dispossess themwithout giving an opportunity to get their claim examined by the Court,resulted in denying to them the equal protection under the law. Theyfurther allege that the 1st and 2nd respondents' acts in allowingoutsiders to enter their premises and to cause damage to theirproperty were arbitrary and unlawful. It is on the basis set out abovethat the petitioners seek to bring their case within Article 12(1) of theConstitution.
The position taken up by the Fiscal in her objections is that whenshe explained the contents of the writ to the 1st petitioner, she agreedto vacate the premises and with the help of the labourers brought bythe judgment creditor removed her belongings allowing the Fiscal todeliver vacant possession to the 6th respondent. However since anexamination of the merits of the respective cases of the petitionersand the respondents is not within the scope of the present exercise, Itake, for the present purpose, the petitioners' version at its highest.
Ranaweera and Others v Sub-Inspector Wilson Siriwardena and
SCOthers (Gamini Amaratunga, J.)265
Accordingly the question to be decided by this Court in relation to thefirst preliminary objection is, whether the acts done by the Fiscal inexecuting a writ issued by a court of competent jurisdiction constituteexecutive or administrative action within the meaning of Articles 17and 126 of the Constitution.
The First Preliminary ObjectionIn relation to the 1st preliminary objection, the learned StateCounsel in his written submissions has taken up the position that "theaction taken to implement a valid judicial order-do not constituteexecutive or administrative action and cannot give rise to executive oradministrative liability in the course of its implementation." Theestablished legal position in relation to fundamental rights jurisdictionis that the acts of a judicial officer done in the exercise of his judicialdiscretion do not come within the ambit of executive or administrativeaction contemplated in Article 17 and 126 of the Constitution. PeterLeo Fernando v TheA.G.W, Farookv Raymond2).
The proposition put forward by the learned State Counsel, if legallycorrect, has the effect of extending the doctrine of judicial immunity inthe context of the fundamental rights jurisdiction to cover the actsdone by ministerial officers in executing process and orders issued byjudicial officers in the course of their judicial functions. It appears thatthe proposition of the learned State Counsel is based on anobservation made by H.A.G. de Silva, J. in Cannosa Investments Ltdv Earnest Perera and others<3). In that case the petitioner claimedrelief against the police for acts done in the course of a search of theirpremises on the authority of a defective search warrant issued by aMagistrate without complying with the provisions of section 5 of theGaming Ordinance. The petitioners challenged not only the validity ofthe search but also the validity of the search warrant issued by theJudge. H.A.G. de Silva, J. having referred to four previous decisionsof this Court, has made the observation that "the Court in all thosecases has not severed the liability of the ministerial officers asdistinct from the judicial order to which the act was referable."at 221.
The cases referred to by H.A.G. de Silva, J. in his judgment are thecases of Kumarasinghe v TheA.GS4), Dayanandav Weerasinghe<5),Dharmatilake v Abeynayakd6) and Peter Leo Fernando v AG (supra).
266Sri Lanka Law Reports[2008] 1 Sri L.R
In the first three cases the petitioners sought relief against theirdetentions in remand custody on the orders made by Magistrates onfalse or misleading police reports submitted to them. In Peter Leo'scase the petitioner sought relief against his detention in the remandcell of the court for several hours on an order made by the Magistratewithout complying with the imperative provisions of the Code ofCriminal Procedure Act. In all those cases this Court has held that thejudicial orders complained of by the petitioners were erroneous, dueto improper exercise of judicial discretion, but relief was denied to thepetitioners on the basis that deprivation of their personal liberty wasdirectly referable to acts (albeit erroneous) which do not fall within thepurview of Article 126 of the Constitution.
There is a fundamental difference between the present applicationand the case of Cannosa Investments Ltd. and the cases cited therein.In those cases the petitioners had challenged the validity of therelevant judicial acts as well as the ministerial acts which eitherpreceded or followed the impugned judicial acts. In the presentapplication the petitioners do not challenge the validity of the writ ofexecution or the legality of the learned Judge's act in issuing the writ.They simply base their case on the acts done by the Fiscal. Thus thiscase is different from the cases relied on by the learned State Counsel.
As far as I am aware, this Court, in the exercise of the Court'sfundamental rights jurisdiction, has not previously examined theliability of a state officer for the acts done in executing valid process ororders issued by a court. In Peter Leo Fernando's case Ranasinghe,J. (as he then was) has expressed the view (obiter) that "The positionof an officer of the State, who, in the course of carrying out an ordermade by a Judge in the exercise of his judicial functions,violates theFundamental Rights of a person, is that he would be free from liability,if, in doing so he has acted in good faith, not knowing that the saidorder is invalid". This view is similar to the exception provided insection 71 of the Penal Code. However, Ranasinghe, J's obiter dictumis not relevant to the present application where there is no challengeto the validity or the legality of the writ.
Therefore it is necessary to examine in some detail the question oflaw which is presently before this Court. Although the validity or thelegality of the writ is not a question to be decided in the present case,I propose to briefly consider whether the act of issuing a writ of
Ranaweera and Others v Sub-Inspector Wilson Siriwardena and
SCOthers (Gamini Amaratunpa, J.)267
execution is a "judicial act" in the sense that term is applied in relationto the fundamental rights jurisdiction of this Court. In the context of thefundamental rights jurisdiction "judicial acts" are the acts of theJudges acting judicially. In Farookv Raymond (supra), Amerasinghe,J. has explained this as follows.
"If the person making the order was not fulfilling the functions andduties proper to an officer appointed to administer the law, viz. toform and pronounce an independent opinion on a matter placedbefore him, he cannot be said to be acting "judicially". If he hasbeen deprived by the law of the power of deciding and actingaccording to his own judgment, he cannot act "judicially";discretion is an attribute, an inherent and essential characteristic,of judicial office; where discretion is ousted by law, the duties,functions and powers appurtenant to judicial office are alsotaken away". (p229)
Black's Law Dictionary, 5th Edition, defines a judicial act as "an actwhich involves exercise of discretion or judgment." The right or thepower to exercise discretion or to form an independent judgmentnecessarily connotes the power to select between two alternatives. Ifthere is no room to exercise discretion or to form an independentjudgment, an act, although it is done by a judicial officer, is not ajudicial act in the sense the term is used in relation to fundamentalrights jurisdiction. Certain acts done by Judges in the performance oftheir judicial functions do not fall into the category of judicial acts andare appropriately called ministerial acts. For example entering thedecree under section 188 of the Civil Procedure Code is not a judicialact, but a ministerial act performed by a judge as one of his judicialfunctions.
Issuing a writ of execution is one of the functions of a Judge. Butis it a judicial act? Sections 225, 320 and 323 of the Civil ProcedureCode contain provisions regarding applications for execution ofdecrees. In terms of those sections, when an application is made forexecution of a decree, the Court has to satisfy itself only on twomatters, namely,
that the applicant is entitled to obtain execution of the decree.An applicant (judgment creditor) is entitled to obtain executionof the decree,
268Sri Lanka Law Reports(2008] 1 Sri L.R
Where an appeal was not preferred against the decreeduring the appeallable period, or
Where the decree has been confirmed in appeal, or
Where the court has allowed execution of the decreepending appeal.
that the application contains the particulars specified in section224 of the Code.
If the application satisfies those two requirements, then theaforesaid three sections provide that the Court "shall direct a writ ofexecution to issue to the Fiscal." Thus where an application is madeby a person entitled to obtain the writ, setting out the particularsspecified in section 224, there is no room for the court to exercise anydiscretion or to form its own judgment. The Court is obliged to directthe writ to issue. I therefore hold that the act of a Judge in directing toissue the writ is not a judicial act but a ministerial act.
The Duty of the Fiscal and the Character of his actsSection 355 of the Civil Procedure Code which appears in Chapter
23 relating to service of process provides that "Writs shall
usually be directed to the Fiscal of the Court issuing the writ "
Section 52 of the Judicature Act, No. 2 of 1978 provides that,
"There shall be appointed to the High Court and to each of theDistrict Courts, Family Courts, Magistrate's Courts and PrimaryCourts established under this Act, a Registrar, a Fiscal and suchother officers as may be necessary for the administration and forthe due execution of the powers and the performance of theduties of such courts including the service of process and theexecution of decrees of Court and other orders enforceableunder any written law."
According to Article 113A of the Constitution, the designation ofFiscals attached to Courts is Deputy Fiscal. (The Judicature(Amendment) Act No. 16 of 1989 which amended section 52 to makethe formal change in the designation of the Fiscal has not beenbought into operation.)
Section 357 of the Civil Procedure Code provides that,
Ranaweera and Others v Sub-Inspector Wilson Siriwardena and
SCOthers (Gamini Amaratunpa, J.)269
"It shall be the duty of every Fiscal, upon receiving any writ
directed to him by any Court, by himself or by his officers to
execute such writ conveyed to him according to the
exigency of the writ."
The words "exigency of the writ" mean the requirements of the writ.The writ is the mandate given to the Fiscal by Court and his duty is toexecute it according to its terms. It simply is a matter of acting inobedience to the instructions contained in the legal mandate andthere is no occasion to exercise his discretion according to his ownjudgment with regard to the propriety of the act. Thus execution of awrit is purely a ministerial act done with judicial sanction, but suchsanction cannot elevate the Fiscal's acts to the status of judicial actswhich do not fall within the phrase 'executive or administrative action'used in Article 126 of the Constitution.
The Fiscal is a State Officer appointed for the purpose of dueexecution of the powers and the performance of duties of courtsincluding the service of process and the execution of decrees of court.He performs duties which are essentially executive in character. "Theexpression "executive or administrative action" embraces executiveaction for the State or its agencies or instrumentalities exercisinggovernmental functions. It refers to exertion of State power in all itsforms" per Sharvananda, J. (as he then was) in Perera v TheUniversity Grants Commission(7). In Faiz v the Attorney-GeneralFernando, J. said that "Executive" is appropriate in a Constitution, andsufficient to include the (official) acts of all public officers, high and low
and to exclude the acts which are plainly legislative or judicialThe
need for including "administrative" is because there are residual actswhich do not fit neatly into this three-fold classification." Acts fallingwithin the phrase "executive or administrative action" are not confinedonly to acts of the Executive branch of the Government. The phraseis wide enough to embrace in appropriate circumstances, the actsdone by ministerial officers in relation to the activities which fall withinthe sphere of the functions of the judiciary.
For the reasons set out above I hold that the acts done by theFiscal in executing a writ issued by a court fall within the ambit ofexecutive or administrative action within the meaning of Article 126 ofthe Constitution, and that this Court has jurisdiction to examine suchacts under the fundamental rights jurisdiction of this Court. This
270Sri Lanka Law Reports[2008] 1 Sri L.R
conclusion is sufficient to give a ruling on the first preliminaryobjection, but I wish to go a step further to set out additional reasonsfor the conclusion I have reached.
Under the Roman Dutch Law, which is the Common Law of SriLanka, a Judge enjoys complete immunity from civil liability for theacts done in the exercise of his judicial functions. "No action liesagainst a judge for acts done or words spoken in honest exercise ofhis judicial office." R. W. Lee. An Introduction to Roman Dutch Law 5thEdition page 341. Section 70 of the Penal Code extends the sameprotection against liability. Since judicial acts do not fall within theambit of Article 126 of the Constitution, a Judge is not liable for theviolation of fundamental rights arising from a judicial act.
However, the officers who execute writs, process or orders issuedby Courts do not enjoy such complete immunity. The protectionavailable to them against criminal and civil liability is limited. In termsof Section 71 of the Penal Code, protection from criminal liability inrespect of acts done pursuant to a judgment or an order of a Court isavailable only if the officer in good faith believed that the judgment ororder of the Court was valid. See also the obiter dictum ofRanasinghe, J. in Peter Leo Fernando v The Attorney-General quotedearlier. Such an officer who acts contrary to law may incur criminalliability. In Badoordeen v Dingiri Banda^9 a process server, who, inviolation of section 365 of the Civil Procedure Code, arrested a personon civil process between the period of sunset and sunrise wasconvicted under section 333 of the Penal Code.
The protection available to an officer executing process issued bycourt and the limits of such protection are set out in section 362 of theCivil Procedure Code. The relevant part of section 362 is as follows:
"every person charged under the duty of executing any
such process shall be protected thereby from civil liability for lossor damage caused by, or in the course of, or immediatelyconsequential upon, the execution of such process by him or inthe case of the Fiscal by his officers,except when the loss ordamage for which the claim is made is attributable to any fraud,gross negligence or gross irregularity of proceeding, or grosswant of ordinary diligence or abuse of authority on the part of theperson executing such process." (emphasis added)
Ranaweera and Others v Sub-Inspector Wilson Siriwardena and
SCOthers (Gamini Amaratunga, J.)271
Thus the latter part of section 362 quoted above sets out thesituation where such an officer may incur liability for acts done inexecuting process issued by a court.
When the general law of the land does not confer full immunity forall the acts done in executing process issued by courts, there is nojustification to exclude all such acts from the purview of thefundamental rights jurisdiction of this Court. In exercising thefundamental rights jurisdiction this Court is under a duty to act incompliance with the letter and the spirit of Article 4(d) of theConstitution.
I therefore overrule the first preliminary objection and hold that thematters averred in the petition constitute executive or administrativeaction, within the meaning of Article 126 of the Constitution and thisCourt has jurisdiction to entertain, hear and decide the petitioners'application.
The Second Preliminary Objection
The second preliminary objection is that the petitioners' applicationhas been filed out of time. The acts resulting in the allegedinfringement of the petitioners' fundamental rights had taken place on23.09.2003. The petition has been filed in this Court on 5.12.2003,after the expiry of the time limit of one month prescribed by Article 126for filing an application for relief to be obtained under the Article.
In their petition the petitioners have stated that they had made acomplaint to the Human Rights Commission on 22.10.2003, which iswithin one month from the date of the acts resulting in the allegedviolation of the petitioners' fundamental rights. The petitioners haveproduced the receipt dated 22.10.2003 issued by the Human RightsCommission acknowledging the receipt of their complaint.
The time of one month prescribed by Article 126 of the Constitutionfor filing an application for the alleged violation of fundamental rightsis mandatory. Yet in a fit case, the Court would entertain an applicationmade outside the time limit of one month provided an adequateexcuse for the delay could be adduced. For instance if a petitioner hadbeen held incommunicado, the principle lex non cogit ad impossibiliawould be applicable to grant relief to such a petitioner. Vide Edirisuriyav Navaratnani^0). In the present case the petitioners never sufferedfrom any such disability and the petitioners have not soughtexemption from the time bar for any adequate excuse pleaded by
272Sri Lanka Law Reports[2008] 1 Sri L.R
them in their petition. The time bar is a plea available to a respondentof a fundamental rights application to resist the application filedagainst him. A time bar or prescription which affects jurisdiction ofCourt must be specifically pleaded in the very first opportunity and if itis not so pleaded, the Court is entitled to proceed on the basis that therespondent has waived his right to raise the defence of time bar indefence of the claim raised against him.
In a fundamental rights application, the first opportunity available toa respondent to put forward any defence available to him including theplea of time bar is the stage at which he has to file his objections afterthe Court has granted leave to proceed. The 2nd respondent theAdditional Registrar/Fiscal of the District Court Colombo, as well asthe 6th respondent judgment creditor, a private individual, have raisedthe plea of time bar in the very first opportunity available to them. Inparagraph 7 of the 2nd respondent's affidavit dated 17.4.2004 shehas raised the plea of time bar in the following specific words.
7 am advised to state that the petitioners' application has beenfiled out of time and respectfully move that Your Lordships Courtbe pleased to dismiss the same in limine."
The 6th respondent judgment creditor too has raised the defenceof time bar in her statement of objections dated the 7th day of March2004. Paragraph 7 of the said objections reads as follows.
"Without prejudice to the aforesaid the 6th respondent states thatthis application is clearly time barred and should be dismissed inlimine.
The averments quoted from the objections of the 2nd and the 6threspondents indicate that at the very first opportunity, the 2nd and 6threspondents have raised the plea of time bar as an absolute bar to theclaim of the petitioners for relief against them.
In view of the foregoing it appears that the 2nd preliminaryobjection raised by the learned State Counsel on 6.9.2005 was a re-agitation of the plea of time bar raised by the 2nd respondent in heraffidavit dated 17.4.2004. Thus the petitioners had notice of the pleaof time bar before the learned State Counsel again highlighted it on6.9.2005.
In the written submissions tendered in answer to the learned StateCounsel's preliminary objections, the petitioners have sought toinvoke the aid of section 13(1) of the Human Rights Commission ActNo. 21 of 1996 to circumvent the time bar set out in Article 126 of the
Ranaweera and Others v Sub-Inspector Wilson Siriwardena and
SCOthers (Gamini Amaratunga, J.)273
Constitution. The said section 13(1) reads as follows.
"Where a complaint is made by an aggrieved party in terms ofsection 14, to the Commission, within one month of the allegedinfringement or imminent infringement of a fundamental right byexecutive or administrative action, the period within which theinquiry into such complaint is pending before the Commission,shall not be taken into account in computing the period of onemonth within which an application may be made to the SupremeCourt by such person in terms of the Article 126(2) of theConstitution."
It is very clear from the section quoted above that the mere act ofmaking a complaint to the Human Rights Commission is not sufficientto suspend the running of time relating to the time limit of one monthprescribed by Article126(2) of the Constitution. In terms of the saidsection 13(1), the period of time to be excluded in computing theperiod of one month prescribed by Article 126(2) of the Constitution is"the period within which the inquiry into such complaint is pendingbefore the Commission."
Section 14 of the Human Rights Commission Act (in so far as it isrelevant to the present purpose) reads as follows.
"The Commission mayon a complaint made to it by an
aggrieved person investigate an allegation of an infringement orimminent infringement of a fundamental right of any person"
Thus the Human Rights Commission is not legally obliged to holdan investigation into every complaint received by it regarding thealleged violation of a fundamental right. Therefore a party seeking toutilize section 13(1) of the Human Rights Commission Act to contendthat "the period within which the inquiry into such complaint is pendingbefore the Commission shall not be taken into account in computingthe period of one month within which an application may be made tothe Supreme Court" is obliged to place material before this Court toshow that an inquiry into his complaint is pending before the HumanRights Commission.
This is the view taken by this Court in the case of Subasinghe v theInspector General of Policed) In that case the petitioner sought toinvoke section 13(1) of the Human Rights Commission Act to claimexemption from the time limit set out in Article 126 of the Constitution.In that case My Lord the Chief Justice has held that the petitioner has
274Sri Lanka Law Reports[2008] 1 Sri L.R
to adduce some evidence to show that there has been an inquirypending before the Human Rights Commission into his complaint. Inthe absence of any such material placed before Court by thepetitioner, the objection relating to the time bar was upheld.
The learned State Counsel in his written submissions hasspecifically cited the case referred to above and attached a copy ofthe judgment to his written submission. The learned State Counselthereby put the petitioners on notice that they have to place materialbefore this Court to show that the Human Rights Commission hasheld an inquiry into their complaint or that an inquiry is still pendingbefore the Commission. However, the petitioners have not adducedany material before this Court to show that an inquiry into theircomplaint has been held by the Commission or that an inquiry is stillpending before the Commission.
The petitioners in their petition to this Court have also stated thatthey have made an application to the District Court under section 328of the Civil Procedure Code seeking to get them restored topossession of the property from which they claim that they have beenwrongfully evicted by the Fiscal. The learned State Counsel in hiswritten submissions has stated that the District Court of Colombo,having inquired into the application made by the petitioners undersection 328 of the Civil Procedure Code, has dismissed theapplication holding that the Fiscal had rightly evicted them from theproperty described in the writ. The petitioners have not challenged orcontradicted this position.
In view of the failure of the petitioners to place any material beforethis Court to show that an inquiry into their complaint has been heldby the Human Rights Commission or that an inquiry is still pending, lhold that the petitioners are not entitled to rely on section 13(1) of theHuman Rights Commission Act to seek exemption from the time limitset out in Article 126(2) of the Constitution. I accordingly uphold thesecond preliminary objection raised by the learned State Counsel anddismiss the petitioners' application without costs.
S.N. SILVA, CJ.-I agree.
RAJA FERNANDO, J. -I agree.
1st preliminary objection dismissed.
2nd preliminary objection upheld.
Application dismissed.