006-SLLR-SLLR-1993-2-RASSOOOL-AND-OTHERS-v.-CARDER-DIRECTOR-FOR-MOSQUES-AND-MUSLIM-CHARITABLE-TU.pdf
sc
Rassool and others v. Cader, Director for Mosques and Muslim
Charitable Trusts and others
33
RASSOOL AND OTHERS
v.CADER, DIRECTOR FOR MOSQUES AND MUSUMCHARITABLE TRUSTS AND OTHERS
SUPREME COURT
A. G. DE SILVA, J,
FERNANDO, J. ANDKULATUNGA, J.
SC APPLICATION NO. 85/88MARCH 20, 1989.
Fundamental Rights – Articles 12 (1), 12 (2) and 14 (1)(a) of the Constitution- Suspension from office of Special Trustee of Mosque – Wakfs Act, No. 51of 1956, ss. 14 and 29 – Burden, standard and degree of proof.
Held :
Neither the Wakfs Board nor the Director for Mosques and Muslim CharitableTrusts (1st respondent), as the delegate of the Board or otherwise has powerunder s. 29 of the Wakfs Act or any other provision to remove or suspenda Trustee ex parte or without an inquiry. An ex parte suspension is withoutjurisdiction and in excess of the statutory powers of the 1st respondent It isnot a mere procedural irregularity.
In regard to discrimination owing to political activities the burden ofproof lies on the petitioners who allege it Although the standard of proof ispreponderance of probability, yet the degree of probability required depends onthe nature of the ‘allegations.
In applications under Article 126, the state and the officer who infringesfundamental rights are jointly and severally liable.
Cases referred to :
Royappa v. State of Tamil Nadu AIR 1974 SC 555.
2. Saman v. Leeladasa – [1989] 1 Sri L R. 1.
APPLICATION for infringement of fundamental rights. .
Faiz Mustapha, P.C. with Amarasiri Panditharatne, M. M. Abdul Kalamand M. R. M. Salam for petitioners.
Asoka de Silva, Deputy Solicitor-General for the 1st, 2nd and 6th respondents.
Cur. adv. vult
34
Sri Lanka Law Reports
[1993] 2 Sri LR.
March 21, 1989.
FERNANDO, J.
The petitioners complain that their fundamental rights underArticles 12 (1), 12 (2) and 14 (1) (a) have been violated by the1st respondent (who was then the Director for Mosques andMuslim Charitable Trusts) who suspended them from the officeof Special Trustee of a Mosque ; he acted, they allege, on thedirections of the 2nd respondent (who was then the Ministerof Muslim Religious and Cultural Affairs). The 1st respondentappointed the 3rd to 5th respondents as Interim Trustees in theirplace, but no relief was claimed against them, and they neitherappeared nor were represented, in these proceedings. The 6threspondent is the Attorney-General, who, the petitioners expresslystate, was made a party only for the purpose of giving notice ofthis application, no specific relief being prayed for against him.
In terms of section 14 of the Wakfs Act, No. 51 of 1956, asamended, the Wakfs Board had appointed the three petitioners asSpecial Trustees of the Jamiul Azhar Bazaar Jumma Mosque ofKurunegala, for the period 15.2.87 to 14.2.88. In January 1988, inconsequence of the request of the Jamaath (congregation) of theMosque, S. H. M. Kamil (an " authorised officer" under the WakfsAct) recommended an extension of three months from 14.2.88, butthe Wakfs Board reappointed the petitioners for a further period ofone year. On 9.3.88 the 1st petitioner was nominated as a candidate,by the Sri Lanka Muslim Congress, for the North-Western ProvincialCouncil; that election was held on 28.4.88.
It is also common ground that the 1st petitioner, supported bythe other two Petitioners, actively engaged in political activities inconnection with that election ; during a period allocated to his Partyon Rupavahini, on 22.4.88, the 1st petitioner condemned the policiesof the United National Party and specially criticised the actions ofthe 2nd respondent. The disputed question of fact in this case iswhether, as the learned Deputy Solicitor-General contends, thePetitioners' political activities were conducted within the Mosquepremises, which would have been both improper and illegal.
A petition dated 15.4.88 was submitted by Kamil to the WakfsBoard on 21.4.88, averring that the petitioners had initially beenappointed for certain specific purposes which they had failed to
sc
Rassool and others v. Cader, Director for Mosques and Muslim
Charitable Trusts and others (Fernando, J.)
35
fulfil ; that although he had requested an extension of three monthsfor the purpose of enabling them to perform those functions, the Boardhad reappointed them for one year ; that they had failed to performthose functions ; and praying that they be removed. The statutoryinstrument of appointment issued to the petitioners do not mentionsuch purposes, and there is no evidence that the petitioners wereso advised, even orally; while the learned Deputy Solicitor-Generalsubmitted that the statute does not prohibit the specification offunctions, or the limitation of authority, of Trustees, he was unableto draw our attention to any provision empowering the Board to doso. For the purposes of this application, I am of the view that bothappointments were not subject to any condition, qualification orrestriction. Further, even assuming that their appointment hadlawfully been subjected to such a condition, yet, as they had beengiven one year to perform those tasks, Kamil could hardly complainof the non-performance of those duties after the lapse of just twomonths.
The powers, duties and functions of the Wakfs Board had beendelegated to the 1st respondent, in terms of section 9A of the WakfsAct, and there is no dispute as to the legality and propriety of thatdelegation. Accordingly, the aforesaid petition was dealt with by the1st respondent on 25.4.88. It is clear from his order that the 1strespondent did not accept the matters stated in the petition as aground for removal or suspension. However, in the course of Kamil'ssubmissions to the 1st respondent he alleged that the 1st petitioner(and no mention is made of the other petitioners) " has used thesaid Mosque for political purposes ; he had also convened severalpolitical meetings at the Mosque contrary to the Muslim ShariahLaw Neither then nor at any stage of the proceedings inthis Court were any details or particulars of the allegations madeagainst the 1st petitioner furnished: what political purposes? on whatdays, and at what times, was the Mosque used for such purposes,or for such meetings? At no stage was any such allegation madeagainst the other two petitioners. The 1st respondent was obviouslyaware that the material placed before him did not warrant anyaction, other than the initiation of an investigation, for he correctlyobserved –
36
Sri Lanka Law Reports
{19931 2 Sri LR.
0 I am of the opinion that before removal or suspension of
a trusteethere should be an inquiry and allegations proved
and parties noticed before me to give evidence. In this instantcase no such proof is available to me. Therefore it is unsafe
to take a decision in the absence of the accused party or
a proper inquiry held by the Authorised Officer. "
Learned Deputy Solicitor-General was compelled to concedethat neither the Wakfs Board nor the 1st respondent (as the delegateof the Board or otherwise) had the power under section 29 of theWakfs Act, or any other provision, to remove or suspend a Trusteeex parte or without an inquiry ; it was not his contention that thestatutory conferment of the power to suspend, after an inter partesinquiry, included, or necessarily implied, the grant of a power ofsuspension, ex parte, pending inquiry. The 1st respondent's furtherorder –
“ However, in view of the seriousness of the allegations madeconcerning political activities in the Mosque and the presentcontext of elections, it would be in the interest of all concernedthat the present set of Special Trustees stands suspended for aperiod of three (3) months "
is therefore without jurisdiction and in excess of his statutorypowers; it is not a mere procedural irregularity.
While this alone may entitle the petitioners to relief in writproceedings, in this application it is necessary to establish the denialof the equal protection of the law or discrimination on the groundof political opinion. For this purpose, learned President's Counselsubmitted –
firstly, that the 1st respondent did not take action againsta Trustee of another Mosque who was a candidate nominatedby the United National Party for the Sabaragamuwa ProvincialCouncil at the same time ;
secondly, that the 1st respondent acted on the instructionsof the 2nd Respondent" to remove all Trustees who are engagedin political activities against the ruling United National Party u; and
sc
Rassool and others v. Cader, Director for Mosques and Muslim
Charitable Trusts and others (Fernando, J.)
37
thirdly, that the 1st respondent suspended the petitioners on
account of their political activities and opinion.
In regard to the first submission, the averment in the 1strespondent's affidavit that he had not received any complaint orpetition in regard to the conduct of such Trustee has not beencontroverted by the petitioners, and in those circumstances theallegation of unequal treatment cannot be sustained. A violation ofArticle 12 (1) has not been established.
In regard to the second submission, it is clear from thepetition that the petitioners were politically opposed to the rulingUnited National Party ; that they were particularly hostile to the 2ndrespondent is apparent from the petition and from the submissionsmade to us. Three matters have been set out in the petition in regardto the 2nd respondent’s involvement. It is averred that it was the2nd respondent who appointed and reappointed the petitionersas Trustees; but this is legally and factually untenable, assuch appointments are made by the Wakfs Board, and at the hearingbefore us learned President's Counsel conceded that this avermentwas erroneous. It is also alleged in the petition that the petitionerswere “ threatened by the agents of the United National Party " andthat the 1st petitioner was informed by the agents of that Partythat " he will be thrown out of the post of Special Trustee “; in theabsence of any details whatsoever, I cannot but accept the 2ndrespondent's alffidavit that he is unaware of such threats. Finally,it is specifically averred that the 1st respondent acted on the 2ndrespondent's instructions " to remove all Trustees who are engagedin political activities against the ruling United National Party ", but theonly material adduced in support is a newspaper report of astatement said to have been made by Kamil on 28.4.88 to the effectthat Trustees will be removed if they allow political campaignswithin the Mosque premises, and that he had been instructed bythe 2nd respondent to take action in this regard. This documentdoes not suggest that instructions were given to take action in respectof those engaged in political activities against the 2nd respondent'sParty ; only that the instructions, if any, given by him related topersons misusing the Mosque premises. I accordingly hold that thepetitioners have failed to establish any complicity on the partof the 2nd respondent, and therefore dismiss the application asagainst the 2nd respondent without costs.
38
Sri Lanka Law Reports
[1993] 2 Sri LR.
In regard to the third submission, there is no direct evidence thatthe 1st respondent had any political animosity towards the petitioners.However, learned President's Counsel seeks to draw that inferencefrom the cumulative effect of several factors. Firstly, he submits thatthe 1st respondent's conduct in suspending the petitioners was ultravires and that bad faith must therefore be inferred. Secondly, the1st respondent's order was made solely on the basis of Kamil's“ submission "; the actual submission does not appear to have beenrecorded, for if it had been recorded I have no doubt that it wouldhave been produced in these proceedings. It would appear that Kamildid not make that submission of his own personal knowledge ; andthat he did not refer to specific instances with any degree ofparticularity, or to the sources of his knowledge. In the circumstances,it is submitted that the suspension was perverse, and unreasonable,warranting the inference of bad faith. Thirdly, the 1st respondentmade an order of suspension against the 2nd and 3rd petitionersalthough no allegation whatsoever had been made against them.Fourthly, since Kamil's petition dated 15.4.88 does not refer to politicalactivities, it is manifest that Kamil had no information or knowledgeof any such activities upto that date ; that petition was submitted tothe Wakfs Board on 21.4.88, and it would be reasonable to inferthat if Kamil had received any such information between 15.4.88 and
the petition would have been suitably amended; on Friday
says Counsel, the 1st petitioner gave strong expression tohis political views on Rupavahini, and on Monday 25.4.88 for thefirst time the allegation was made that the Mosque premiseswere used for political activities; it may therefore be inferred thatKamil was motivated by that telecast. Being the eve of the electionthe 1st Respondent, if acting bona fide, would obviously have askedKamil why there was no mention of these matters in his petition ;he would have been put on his guard, and would have acted withextreme caution. Fifthly, since Kamil was the 1st respondent'ssubordinate, it is extremely unlikely that the action taken by Kamilwas completely independent of the 1st respondent.
The burden of proof lies on the petitioners to establish that the1st respondent discriminated against them on account of their politicalviews and activities. The matters relied on by learned President'sCounsel, taken in isolation, may not have sufficed to dischargethat burden. Although the required standard of proof is by apreponderance of probability, yet the degree of probability dependson the nature of the allegations, for:
sc
Rassool and others v. Cader, Director for Mosques and Muslim
Charitable Trusts and others (Fernando, J.)
39
*allegations of mala tides are often more easily made than
proved, and the very seriousness of such allegations demands
proof of a high order of credibility if these charges are true,
they are bound to shake the confidence of the people in thepolitical custodians of power in the State, and therefore theanxiety of the Court should be all the greater to insist on a high
degree of proof because otherwise functioning efficiently
would become difficult in a democracy. “ (Royappa v. State ofTamil Nadu (1).
The 1st respondent took no action against the Trustee ofanother Mosque because, he says, he did not receive anycomplaints or petitions in that regard. This seems to suggest thathe took action against the petitioners because he did receivecomplaints or petitions regarding the petitioners; but no suchcomplaint has been produced, no mention has been made of anyoral complaint, and there is no affidavit from Kamil. There is noaverment as to the specific matters mentioned by Kamil in hisu submissions °. Clearly, the 1st respondent acted against thepetitioners because of their political activities ; the 1st respondentseeks to justify his conduct on the basis that these activitiestook place within the Mosque premises ; the onus was on the 1strespondent to establish that fact, or at least that he reasonablybelieved this. There is not even a " submission " in that respectin the case of the 2nd and 3rd petitioners, and their suspensionwas thus wholly without justification. In regard to the 1stpetitioner, apart from Kamil's “ submissionmerely a bare, generalassertion – there is nothing to indicate that the 1st respondentacted because there was in fact a serious allegation to thateffect, demanding urgent ex parte action, “ in the interest of allconcerned A seven-day suspension would have been more thanadequate if the 1st respondent was concerned about the pendingelection. I therefore hold that the 1st respondent suspended thepetitioners on account of their political opinions and activities, andsince it has not been established, that the 1st respondent had evena reasonable suspicion that such activities were within the Mosquepremises, the petitioners are entitled to a declaration that the 1stRespondent violated the fundamental right of the petitioners underArticle 12 (2). The evidence does not establish any distinct violationof Article 14 (1) (a).
40
Sri Lanka Law Reports
[1993] 2 Sri LR.
The question arises whether any relief should be granted againstthe State. Although relief can be granted against the State, wherethe Attorney-General has been made a party, yet the petitionershave categorically stated that no specific relief is sought against theAttorney-General. I therefore do not award any relief as against theState.
If it is held that the State alone is liable for the violation of thepetitioners' fundamental rights by the 1st respondent, the petitionerscannot be granted any relief in this application, apart from a baredeclaration; in my view, however, in applications under Article 126it is not only the State which is liable : both the State as well asthe officer who infringes a petitioner's fundamental rights are jointlyand severally liable. I have set out my reasons for this opinion inSaman v. Leeladasa ®. To hold that the State alone is liable wouldencourage, rather than deter, the infringement of fundamental rightsby public officers ; a public officer may be tempted to infringe thefundamental rights of a citizen, even by contravening specificdirections given to him by his superiors, in the belief that he wouldbe immune from personal liability in an application of this nature.Accordingly, even though no relief has been sought, or awarded,against the State, I hold that the petitioners are entitled to reliefas against the 1st respondent for the infringement of theirfundamental right. The suspension was communicated and becameeffective only on 29.4.88, after the Provincial Council election, andhence did not affect that election. However, although there is noevidence as to the extent of the damage to the petitioners'reputation, the suspension would inevitably have caused suchdamage.
I award the petitioners the following reliefs
a declaration that the fundamental right of the petitionersunder Article 12 (2) has been violated by the 1st Respondent,by reason of discrimination on the ground of politicalopinion;
compensation to the 1st petitioner in a sum of Rs. 5,000,and to the 2nd and 3rd petitioners sum of Rs. 2,500 each,payable by the 1st respondent; and
sc
Rassool and others v. Cadet, Director for Mosques and Muslim
Charitable Trusts and others (Fernando, J.)
41
one set of costs, fixed at Rs. 2,500, payable by the 1strespondent.
H. A. G. DE SILVA, J. – I agree.
KULATUNGA, J. – I agree.
Petition granted as per order.