SIRIWARDENA AND OTHERS V. LIYANAGE AND OTHERS

018-SLLR-SLLR-1983-2-SIRIWARDENA-AND-OTHERS-V.-LIYANAGE-AND-OTHERS.pdf


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SIRIWARDENA AND OTHERSV.
LIYANAGE AND OTHERS
SUPREME COURTWIMALARATNE. J„ RATWATTE, J..
COLIN – THOME, J„ ABDUL CADER, J. AND RODRIGO. J.
S. C. APPLICATION 120/82,
DECEMBER 10, 15, 16. 17. 1982.
AND JANUARY 10, 11, 1 2. 13. 1983.
Fundamental Rights — Public Security Ordinance. S. 5 — Regulation 14(3) ofthe Emergency (Miscellaneous Provisions and Powers) Regulations Nos. 2 and 3of 1982 — Sealing of press – Fundamental right of the freedom of speech andexpression including publication (Article 14(1 )(a) of the Constitution) —Freedomto engage in any lawful occupation, profession, trade, business or enterprise(Article 14(1) (g) of the Constitution) — Abuse of power — Campaign againstreferendum — Mala fides — Ulterior purpose — Public Security Ordinance. S. 8— Restrictions (Article 15(2) and 15(7) of the Constitution).
Held —
The freedom of speech and expression including publication is subject to suchrestrictions as may be prescribed by law in the interests of racial and religiousharmony, or in relation to parliamentary privilege, contempt of court,defamation, incitement to an offence, national security, public order and theprotection of public health or morality etc. Law in this context includesregulations made under the Public Security Ordinance.
Section 8 of the Public Security Ordinance (finality clause) will not prevent thegrant of relief if the petitioners are entitled to it.
The phrase "for 1;he preservation of public order" in our Emergency Regulationsought to be interpreted, having regard to S. 5 of the Public Security Ordinanceand means" for the purpose of preventing disorder".
Under Regulation 14(3) if a competent authority is of opinion that there is or hasbeen or is likely to be in any newspaper, publication of matter which is in hisopinion calculated to be prejudicial to the interests of national security, thepreservation of public order, etc., he may make an order as specified in suchRegulation. The decision must be reasonable in the sense that it is or can besupported with good reasons or at any rate be a decision which a reasonableperson might reasonably reach. Where the opinion formed is that a publicationis prejudicial then the opinion is a subjective opinion, but where the opinion isone that is formed on something that has already been published-or is beingpublished then the opinion is not a purely subjective opinion.
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Checks and balances against official abuse and misconduct are enshrined in thefreedom of publication which is a cherished right in any free society. At thesame time, there are essential limits on the right to publish. The limitations aregreater when a nation is at war or under a state of emergency. Criticism whichinvites the public to disregard the Rule of Law itself is dangerous incitement toact outside the Law, even in normal times.
Some of the material on which the competent authority acted could have incitedpersons to breaches of the peace. Some others are highly defamatory, while stillothers are scurrilous and in extremely bad language. Against the history ofescalating post election violence and the mounting tension prior to theReferendum, the decision of the Competent Authority was not unreasonable.Hence the fundamental right of freedom of expression, guaranteed by Article14(1)(a) of the Constitution has not been violated.
The Mahajana Press prints the Aththa Paper and this was its principal work. Theother work undertaken by the Press would be trivial compared to the workinvolved in the printing of the Aththa. Hence the order for sealing the press wasvalidly made and there has been no violation of the fundamental right to thefreedom of engaging in one's lawful occupation, trade, business or enterpriseguaranteed by Article 14(1)(g).
Cases referred to:
Jaggannath Misra v. The State of Orissa AIR 1966 SC 1140.
Ras Behan Lai v. King Emperor (1933) 60 Indian Appeals 354, 361.
Romesh Thapar v. State of Madras AIR 1950 SC 1 24.
Virendra v. State of Punjab AIR 1957 SC 896.
The Supdt. Central Prisons v. Dr. Lohia AIR 1960 SC 633.
Ram Manohar Lohia v. The State of Bihar AIR 1966 SC 704.
Yasapala v. Rani! Wickremasinghe S.C. Application No. 103 of 1980 S.C.Minutes of 8.12.80.
Rameshwar Shaw v. District Magistrate. Burdwan AIR 1964 S.C. 334.
Hirdaramani v. Ratnavale (1971) 75 NLR 67.
10 Liversidge v. Anderson (1942) AC 206.
11. Greene v. Secretary of State for Home Affairs (1942) AC 284.
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Carltona Ltd v. Commissioner of Works (1943) 2 All ER 560. 564.
PadfieldV. Minister of Agriculture. Fisheries & Food (1968) AC 997.
Breen v. Amalgamated Engineering Union (1971)2 QB 175.
1 5. Secretary of State v. Tameside (1976) 3 All ER 665.
Land Commissioner v. Ladamuttu 62 NLR 126.
Perera v. Peoples' Bank (1975) 78 NLR 239, 249.
Nokes v. Doncaster Amalgamated Collieries Ltd. (1940) AC 1014, 1022.
1 9. Regina v. Medical Appeal Tribunal Exparte Gilmore (1957) QB 583.
Nakkuda AH v. Jayaratne {Controller of Textiles) 51 NLR 462.
Smith v. East Elloe Rural District (1956) AC 736. 750.
Gunasekera v. Ratnavel 76 NLR 316.
Anisminic Ltd. v. Foreign Compensation Commission (1969) 2 AC 147.APPLICATION under Article 126 of the Constitution.
S. Nadesan Q.C. with Peter Jayasekera. R. B. Seneviratne and S.H.M. Reeza forthe Petitioners.
M. S. Aziz. Deputy Solicitor-General with K. C. Kamalasabayson. Senior StateCounsel and D. M. G. Dissanayake. State Counsel for the Respondents.
Cur. adv. vult
January 27, 1 983.
WIMALARATNE. J.
A state of Emergency was proclaimed by the President of theRepublic soon after the Presidential Election had been concludedon 20.10.82.
Purporting to act under powers vested in him by Regulation14(3) of the Emergency (Miscellaneous Provisions & Powers)Regulations. Nos. 2 & 3 of 1982 made by the President undersection 5 of the Public Security Ordinance (Cap. 40) the 1stRespondent, who is the competent authority appointed for the
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purpose of that Regulation, made orders dated 2.11.82 and20.11.82 directing that no persons shall print, publish ordistribute or in anyway be concerned in the printing, publicationor distribution of the newspaper known as the "Aththa", and thatthe press (the "Mahajana Press") in which the newspaper isprinted shall not be used for any purpose whatsoever, during thecontinuance in force of the said orders.
The 2nd Respondent, who is the Inspector General of Police,purporting to act in persuance of the order of 2.11.82 causedhis subordinate officers to seal the editorial office, thecomposing section and the printing-press in whch the "Aththa"was printed, situated at No. 91. Cotta Road. Colombo 8 and alsoseized copies of the first edition of the "Aththa" of 3.11.82 whichwere awaiting despatch.
Emergency Regulation 14(3) is in these terms
"(3) If a competent authority is of opinion that there is orhas been or is likely to be in any newspaper, publication ofmatter which is, in his opinion, calculated to be prejudicialto the interests of national security of the preservation ofpublic order of the maintenance of supplies and servicesessential to the life of the community or matter inciting orencouraging persons to mutiny, riot or civil commotion, hemay—
by order direct that no person shall print, publish ordistribute or in any way be concerned in the printing,publication or distribution of such newspaper for suchperiod as may be specified in the order, and that theprinting-press in which such newspaper was printed shall,for such period as is specified in the order, not be used forany purpose whatsoever or for any such purpose as isspecified in the order, and authorize any person specifiedtherein to take such steps (including the taking possessionof any printing-press with respect to which the order ismade or of any premises in which it is contained or of anypart of such printing-press or premises) as appear to theperson so authorized to be necessary for securingcompliance with the order; or
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take such measures or give such directions or makesuch order as is provided for in paragraphs (1) and (2) ofthis regulation, in respect of such newspaper".
The order made by the 1st Respondent on 20.11.82 andwhich was the order in force when the present application wasmade is as follows
"By virtue of the powers vested in me by Regulation 14(3) ofthe Emergency (Miscellaneous Provisions & Powers)Regulations No. 3 of 1982, I , Don John Francis DouglasLiyanage, Secretary to the Ministry of State and CompetentAuthority appointed for the purpose of Regulation 14, beingof opinion that there has been published in the "Aththa"newspaper matter which in my opinion is calculated to beprejudicial to the interests of national security, thepreservation of public order, the maintenance of suppliesand services essential to the life of the community, andmatter inciting and encouraging persons to mutiny, riot orcivil commotion, do by this order direct that;
no person shall print, publish or distribute or in any waybe concerned in the printing, publication or distribution ofthe said newspaper during the continuance in force of thisorder; and
that the printing-press in which the said newspaper isprinted shall, during the continuance in force of this order,not be used for any purpose whatsoever.
I also hereby authorise the Inspector General of Police totake possession of such printing-press and of any premisesin which such printing-press or any part thereof iscontained and take such other steps as appear to him to benecessary for securing compliance with this order.”
The Petitioners to this application, who have invoked thejurisdiction of this Court under Article 1 26 of the Constitution,are the editor, publisher and proprietor of the "Aththa" and the
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proprietors of the "Mahajana Press". They complain that as aresult of the orders made by the 1st Respondent, which havebeen carried out by the 2nd Respondent, the fundamental rightof the freedom of speech and expression, including publication,guaranteed by Article 14(1)(a) and of the freedom to engagethemselves in any lawful occupation, profession, trade, businessor enterprise guaranteed by Article 14(1)(g) have been violated.They aver that the said orders are unlawful and made mala fide inabuse of the powers conferred by Regulations 14(3) not for alegal purpose, but for an ulterior purpose, and are void ab initioand a nullity. They pray for a declaration that the orders of the1 st Respondent are null and void and/or in contravention of theprovisions of the Constitution, and that the acts of the 2ndrespondent and his subordinate officers are also in contraventionof the Constitution. They ask for a direction that the offices of the"Aththa" and the "Mahajana Press" be handed over to them, andthey also ask for damages by way of compensation for loss ofbusiness suffered by them.
In support of the allegation of mala tides the Petitioners averthat the major newspaper which supported and campaigned forthe S.L.F.P. Presidential candidate Mr. Kobbekaduwa was the"Aththa". and the manner in which such support was extended isfully set out in paragraphs 14 to 23 of the Petitioners' affidavit. Itwas never expected, according to the Petitioners, that theEmergency Regulations would be utilised for the purpose ofinvestigating alleged offences committed by the supporters ofMr. Kobbekaduwa during the Presidential election and anyonewho does this would be guilty of abuse of power which the"Aththa" would have taken up in its columns if it was not closeddown. One result, according to petitioners, of this abuse ofpower is that a large number of active workers of the S.L.F.P. hasbeen detained under Emergency Regulations and therebyprevented from participating in the referendum campaign.
On 27.10.82 the President announced to the Cabinet ofMinisters that, instead of a Parliamentary general election, heproposed to extend the life of the present Parliament by resort toa referendum for a further period of six years from August 1983.
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This proposal, according to the Petitioners, was considered bythe "Aththa" and it was decided to carry on as vigorous acampaign as it did during the Presidential election in respect ofthe Referendum and urge voters to vote against the extension ofthe life of Parliament. It also decided to publicise in its papersforeign as well as local criticisms of this proposal. They wereamong others, criticisms levelled against the proposal by theCivil Rights Movement and three Indian newspapers, whichcriticisms are more fully set out in paras 34 to 49 of thePetitioners' affidavit.
The proprietors of the "Mahajana press" who are the 4th and5th Petitioners complain that their business has suffered as aresult of the sealing of the press because besides printing the"Aththa" they used to do in addition, job work like the printing ofbooks, periodicals, pamphlets, notices and handbills.Accordingly persons opposed to the referendum have not beenable to get notices of meetings or leaflets printed putting forwardtheir views in order to carry on propaganda against thereferendum, and the press has been deprived of its legitimateincome from this source.
The manner in which the "Aththa” could have exposed for thebenefit of its readers the "fallacious" reasonings of speakerssupporting the referendum on various ceremonial occasions aswell as on television, had the publication of the paper not beenbanned, is referred to‘in paragraphs 56 to 60. Whilst the party inpower has "unleashed" on the citizens a gigantic propagandabarrage, every attempt has been made, say the Petitioners, tothwart even the extremely modest referendum campaign that theopposition was capable of launching. The Petitioners allege inparagraphs 63 and 88 that party supporters and office bearersof the S.L.F.P. have been detained and questioned by the C.I.D.,illegal searches made and documents removed with the object ofhampering the participation in the campaign against thereferendum. Reference is made in paragraphs 89 to 92 of thedisplay of placards and posters with the symbol of the lamp anda cross against it. signifying that people should vote for thereferendum, and this in violation of section 50 of the
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Referendum Act. Had the "Aththa" paper net been closed itwould have exposed not only the unlawfulness of what has beendone by supporters of the party in power, but also of the 2ndRespondent and his subordinates for the failure to carry out theirduties.
By closing down the Aththa the Petitioners aver in para 103that readers of the paper have been denied their right to knownews regarding meetings, seminars and other matters relating tothe referendum in which the opposition takes part, and alsoviews and issues relating to the referendum.
The "Aththa" newspaper has at no time, according to thePetitioners, published matter calculated to be prejudicial to (a)the interest of national security, or (b) the preservation of publicorder, or (c) the maintenance of supplies and services essentialto the life of the country. Neither has there been (d) any matterinciting persons to mutiny, riot or civil commotion. The 1strespondent could not therefore have formed the opinion whichhe says he did.
On these averments this Court granted the Petitioners leave toproceed and issued notice on the respondents. The 1strespondent avers that in terms of Article 15(7) of theConstitution the exercise and operation of the fundamental rightsdeclared and recognized by Article 14 are subject to suchrestrictions as may be prescribed by law in the interests ofnational security, public order and the protection of public healthor morality, or for the purpose of securing the due recognitionand respect for the rights and freedoms of others or of meetingthe requirements of the general welfare of a democratic society.The 1st Respondent submits that the orders sought to beimpugned in these proceedings are orders validly made under•Regulation 14(3) and hence not subject to review and cannot bequestioned in these proceedings. As there has been a lawfulrestriction of the Petitioners' fundamental rights to freedom ofspeech and expression including publication, and of theirfreedom to engage in any lawful occupation, profession, trade,business or enterprise, they are not entitled to any relief underArticle 126.
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The Respondents state that in any event the orders made inpursuance of the Emergency Regulations, cannot be called inquestion or be reviewed by this Court. The 1st Respondent has.however, placed material before us appraising us of the reasonsthat led to the making of the orders. He states that upon aconsideration of the contents of the "Aththa" newspaperpublished prior to 2.11.82 (random samples of articles andcomments of which have been marked as 1 R1 to 1R14) he wassatisfied that their tenor and contents were highly provocative,inflammatory and were likely to incite sections of the communityto violence and. breaches of the peace and thereby imperil themaintenance of law and order in the country; and that they werein fact, according to his information fanning unrest anddissension among various sections of the community. The 1stRespondent specifically denies that the orders were made for animproper purpose or for preventing the lawful dissemination ofnews or comments pertaining to the Referendum.
Mr. Nadesan's principal contention has been that the ordershave been made by the 1 st Respondent mala fide for an ulteriorpurpose, namely, to prevent the "Aththa" newspaper fromactively compaigning against the impending referendum. Bysealing the paper the 1st Respondent has closed the mouth ofthe main newspaper which supported the parties campaigningagainst the referendum. The competent authority has taken themost drastic step of completely prohibiting publication whereasit was open to him to have taken the less drastic step of imposinga censorship by virtue of powers vested by regulation 14(1).Mala tides may also be inferred, according to counsel, by thedenials in the affidavit of the 1 st respondent of facts which wereobvious. As an illustration he pointed to the averment in thepetitioners' affidavit that after the proclamation for the holding ofthe referendum was made on 15.11.82, the persons who hadput up placards and posters made out of green polythene whichhad the imprint of a lamp (a symbol of the 'yes' vote) with a crossagainst it did not remove them but continued to display them inviolation of the Referendum Act. The 1 st respondent's reply wasthat he was 'unaware' of this averment, when in fact it wasobvious to anybody that the averment was true and called for anadmission.
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Learned Counsel has addressed us on the importance in ademocratic country of the freedom of speech and expressionincluding the freedom of the press and referred us to variousdecisions of the Supreme Courts of the United States and ofIndia, as well as to the written submissions made by Counsel onbehalf of Mr. J. R. Jayewardene when he was Leader of theOpposition at the time when the Press Council Bill came up forconsideration before the Constitutional Court on 2.2.73.
Reference has also been made to the wording of the ordersmade by the 1 st Respondent. Counsel says that the competentauthority has in the orders merely copied out all the groundsstipulated in Regulation 14(3). It is therefore apparent that hehas not applied his mind in the matter of the prohibition of thepublication of the newspaper. He has referred us to the case ofJaggannath Misra v. The State of Orissa 1 where in an order ofdetention made under Re. 30(1 )(b) of the Defence of IndianRules, six out of a possible seven grounds on which a citizencould be detained were mentioned, whereas in the affidavit ofthe Minister only two of such grounds were mentioned.Wanchoo, J. in releasing the detainee referred to the casualnesswith which the order had been made in these terms :—"In thesecircumstances there can be little doubt that the authorityconcerned did not apply its mind properly before the order inquestion was passed in the present case. Such discrepancybetween the grounds mentioned in the order and the groundsstated in the affidavit of the authority concerned can only show
an amount of casualness in passing the order of detention
This casualness also shows that the mind of the authorityconcerned was really not applied to the question of the detentionof the petitioner in the present case" at 1142. In the instant case,however, there is no such serious discrepancy between thegrounds stated in the order and the grounds specified in theaffidavit of the 1 st respondent, and it cannot therefore be saidthat the mind of the competent authority had not been applied tothe orders of closure before they were made. In any event, itcannot be inferred that the competent authority had not broughthis mind to bear on the question he had to decide from the merefact that he had copied all the grounds stated in the Regulations.
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The learned Deputy Solicitor General submits that the onlyground on which an order of the 1st Respondent can be vitiatedis that it has been made in bad faith. The test of the validity of anorder, in his contention, is not whether the Court considers it tobe reasonable, or whether a reasonable man considers it to bereasonable, but the only test is "has there been bad faith ?" Hesubmits that bad faith has not been established even on a primafacie case. If an order is manifestly absurd or perverse or ismanifestly unreasonable then it could be said that the order hasbeen made mala fide. But such circumstances are totally lackingin this case, and in order to demonstrate the competentauthority's bona fides he has taken us through the publicationsmarked 1 R1 to 1 R1 4 which are issues of the "Aththa" publishedbetween 1 7.9.82 and 2.11.82. There was ample justification, inhis submission, for the orders made by the 1 st respondent whichorders were made solely because the publications producedwere, in the opinion of the competent authority, calculated to beprejudicial to the preservation of public order and calculated alsoto incite persons to riot or civil- commotion or to breaches of thepeace. Apart from directly inciting people to violence the articlescould have provoked the supporters of the ruling party whichcould lead to public disorder and therefore the publicationswould fall within the ambit of the Regulations.
I shall deal with the several questions of law beforesummarising the material on whch the competent authority sayshe formed his opinion.
The finality clause. Section 8 of the Public Security Ordinance(Cap. 40) ordains that no emergency regulation, and no order,rule or direction made or given thereunder shall be called inquestion in any Court. The effect of such a finality clause hasbest been stated as follows 'The Courts have made it a rulethat such clauses cannot hamper the operation of judicial control
there is a firm judicial policy against allowing the rule of law
to be undermined by weakening the powers of the Courts.Statutory restrictions on judicial remedies are given thenarrowest possible construction, sometimes even against theplain meaning of the words. This is a sound policy, sinceotherwise administrative authorities and tribunals would be givenuncontrollable power and could violate the law at will.
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'Finality is a good thing but justice is a better' quoting Lord Atkinin Ras Behari Lai v. King Emperor at 361 "2. Wade,Administrative Law (4th Ed) 566. I am of the view that theabove section 8 does not prevent the Petitioners from obtainingrelief, if they are entitled to any.
The freedom of expression —Article 14(1) of the Constitutionprovides that every citizen is entitled to —
(a) the freedom of speech and expression, inlcuding publication ;
But there are restrictions placed on the freedom of speech andexpression, and they are contained in Articles 1 5(2) and 1 5(7).This freedom is subject to such restrictions as may be prescribedby law in the interests or racial and religious harmony, or inrelation to parliamentary privilege, contempt of court,defamation, incitement to an offence, national security, publicorder and the protection of public health or morality, or for thepurpose of securing the due recognition and respect for therights and freedoms of others or of meeting the justrequirements of the general welfare of a democratic society."Law" in this context includes regulations made under the PublicSecurity Ordinance. It will be seen that these restrictions aremuch wider than any restrictions placed on the freedom ofspeech and expression either in the American Constitution or inthe Indian Constitution. In the Constitution of the United Statesthe 1st amendment, which provides that "Congress shall make
no lawabridging the freedom of speech or of the press", does
not make any permissible constitutional restrictions. But Judgeshave worked out reasonable restrictions; for example, that therestriction of this freedom was justified only if there was "a clearand present danger" or on a "balancing of the competinginterests" between free speech and the needs of society.Whether one applies the "clear and present danger" test or the"balancing of interests" test the extent of the freedom willdepend on the philosophy of the Judges.
In India, before the first amendment to the Constitution waseffected in 1951. no restriction on the freedom of speech and
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expression guaranteed by Article 19(1 >(a) could have beenplaced on the ground that such restriction was necessary in theinterest of "public order". See Romesh Thapar vs. State ofMadras.3 Soon after that case the restriction clause 19(2) wasamended to read as follows
"Nothing in sub clause (a) of clause (1) shall affect theoperation of any existing law, or prevent the State frommaking any law in-so-far as such law imposes reasonablerestrictions on the exercise of the right conferred by the saidsub clause in the interests of the security of the State,friendly relations with foreign states, public order, decencyor morality, or in relation to contempt of court, defamationor incitement to offence".
As restrictions may be placed on the freedom of expression "inthe interests of pubilc order" both in India and in Sri Lanka itwould be relevant to examine the interpretation placed on thisphrase by the Indian Supreme Court. In Virendra v. State ofPunjab4 the Punjab legislature enacted a special Press Act underwhich the state or any other authority on its behalf could takesteps to prevent acts which were prejudicial to communalharmony or likely to effect public order, as a result of thepartition of the State on a linguistic and communal basis whichled to a great deal of tension between Hindus & Sikhs. Twonewspapers were prohibited from publising anything dealingwith the 'Save Hindi Agitation' and the editors were prohibitedfrom bringing any issue of the newspapers which carried anynews or views on this subject. The Court, while conceding thatthe right of freedom of speech and expression carried with it theright to propagate and circulate ones views, went on to add thatin their view the social interest had priority over what wasconsidered to be an individual's right of freedom of expression.Observed Das C. J. "The expression in the interest of makes theambit of the protection very wide, for a law may not have beendesigned to directly maintain the public order or to directlyprotect the general public against any particular evil, and yet itmay have been enacted 'in the interests of the public order orthe general public as the case may be", at 899.
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A criticism of this decision is that the Supreme Court appearsto have drawn a nexus between reasonable restriction and publicorder. However, in the subsequent case of The Suptd: CentralPrisons v. Dr. Lohia5 Subba Rao J. thought that the distinctionbetween the phrases "in the interest of public order" and "for themaintenance of public order" does not ignore the necessity forintimate connection between the Act and the public order soughtto be maintained by the Act. Dealing with the expression "publicorder" he said that it has a very wide connotation. Order is thebasis of iany organised society. It implies the orderly state ofsociety or community on which citizens can peacefully pursuetheir normal activities of life", at 636. He went on further: "Publicorder is equated with public peace and safety …. All the groundsmentioned in Article 19(2) can be brought under the generalhead "public order" in its most comprehensive sense. But thejuxtaposition of the different grounds indicate that thoughsometimes they tend to overlap, they must be ordinarily intendedto exclude each other. Public order is therefore something whichis demarcated from the others. In that limited sense, particularlyin view of the history of the amendment, it can be postulated thatpublic order is synonymous with public peace, safety andtranquillity" at 639.
Mr. Nadesan has drawn our attention to the subsequentdecision of the Supreme Court of India in the case of RamManohar Lohia v. The State of Bihare where a distinction hasbeen drawn between an order for detention made for thepurpose of maintenance of public order, and an order made forthe maintenance of law and order. The Court took the view thatby "maintenance of public order" is meant the prevention ofdisorder of a grave nature, a disorder which the authorities thinkis necessary to prevent in view of the emergent situation; while"maintenance of law and order" may not have been used in thesense of prevention of disorder of a grave nature. The expressionmay mean prevention of disorder of comparatively lesser gravityand/or of local significance only. Hidayatullah J. underlined thedifference by taking the example of three concentric circles inwhich "law and order represents the largest circles, within whichis the next circle representing public order, and the smallestcircle represents security of the State. It is then easy to see thatan act may affect law and order but not public order, just as anact may alter public order but not security of the State" at page758 para 52. It is the contention of the Counsel that the phrase"preservation of public order" in our Emergency Regulations
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ought to be interpreted in the wider sense, as meaning theprevention of disorder of a grave nature, rather than to disordersof a trivial nature such as petty breaches of the peace or tensionand dissension between rival parties particularly after a politicalelection, which do not lead to public disorder.
The definition of "public order" was given in the two casesreferred to above under different circumstances, and in theinterpretation of two different Statutes, namely Article 19(2) ofthe Constitution (after its 1st amendment in 1951) and Rule30( 1 )(b) of the Defence of Indian Rules (1962). In the context ofour Emergency Regulations, however, it is my view that thephrase "for the preservation of public order" ought to beinterpreted having regard to section 5 of the Public SecurityOrdinance, which empowers the President to promulgateEmergency Regulations as appear to him to be necessary orexpedient in the interest of public security and the preservationof public order and the suppression of mutiny, riot or civilcommotion. In this context it is my view that the phrase "for thepreservation of public order" ought to be interpreted to mean"for the purpose of preventing disorder". Islandwide breaches ofthe peace can lead to disorder by the disturbance of peace andtranquillity. It is in that sense that the term "public order" hasbeen defined in J. A. Yasapala v. Ranil Wickramasinghe &Others1 which was a case which revolved around theinterpretation of section 5 of the Public Security Ordinance, and Iwould adopt that interpretation for the purpose of Regulation14(3) as well.
The subjective formulation of powers. Regulation 14(3) isformulated in terms which say that "if a competent authority is ofopinion that there is or has been or is likely to be in anynewspaper, publication of matter which is. in his opinion
calculated to be prejudicial to he may by order direct etc:"
"this is a commonplace technique in emergency legislation, andit is to be expected that the Courts will show due deference, notonly to the opinion of the Executive that a state of emergencyexists but also to the opinion of the Executive that particular factsexist calling for the exercise of detailed emergency powersgranted by statute": but "an ostensible unfettered grant ofdiscretionary power does not necessrily stultify judicial review"de Smith, Judicial Review of Administrative Action (4th Ed)362.
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The Indian Supreme Court, in the case of Rameshwar Shaw v.District Magistrate. Burdwan8 considered the approach to suchformulation of powers in a case of detention under section3(1 )(a) of the Preventive Detention Act (1950) and the attitude ofthe Court as may be gathered from the judgment ofGajendragadkar, J. may be summarised as follows
The reasonableness of the satisfaction of the detainingauthority cannot be questioned in a court of law; theadequacy of the material on which the said satisfactionpurports to rest also cannot be examined in a court of law.
Though the satisfaction of the detaining authority is hissubjective satisfaction, cases may arise where the detaineemay challenge the validity of his detention on the ground ofmala fides and in support of the said plea urge that alongwith other facts which show mala fides. the court may alsoconsider his grievance that the grounds served on himcannot possibly or rationally support the conclusion drawnagainst him by the detaining authority. It is only in thisincidental manner and in support of his plea of mala fidesthat this question can become justiciable.
The past conduct or antecedent history of the person onwhich the authority purports to act. should ordinarily beproximate in point of time and should have a rationalconnection with the conclusion that the detention of theperson is necessary.
In Sri Lanka the test to be applied when an order for detentionis made under Emergency Regulations formulated in subjectiveterms was considered in the case of Hirdaramani v. Ratnavale9.The Emergency Regulation under which the detainee wasdetained read as follows
"Where the Permanent Secretary is of opinion with respectto any person, that with a view to preventing such person
from acting in any manner prejudicial to the publicsafety, or to the maintenance of public order, or to themaintenance of essential services; or
from acting in any manner contrary to any of theprovisons of paragraphs 2(a) or (b) of Regulation 38 orRegulation 24. it is necessary so to do, the Permanent Secretary
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may make order that such person be taken into custody anddetained in custody".
The detention order recited that the Permanent Secretary"being of opinion that with a view to preventing (the detainee)from acting in any manner prejudicial to the public safety and tothe maintenance of public order, it is necessary so to do, dohereby order that such person be taken into custody anddetained in custody".
The wife of the detainee sought to have him released in habeascorpus proceedings on the ground that the detainee had beentaken into custody not with a view to preventing him from actingin any manner prejudicial to public safety and/or to themaintenance of public order, but for the purpose of assistingand/or facilitating the investigation by the C.I.D. into certainalleged offences and contraventions under the Exchange ControlAct.
The Permanent Secretary filed an affidavit in which he referredto the widespread armed insurrection which commenced in April1971, and stated inter alia, that he was satisfied, afterconsidering certain material placed before him by the Police, thatthe detainee had taken part in cetain foreign exchangesmuggling transactions which were under investigation, and thathe should be prevented in future from engaging in similartransactions, which directly or indirectly helped and financed theinsurgent movement : H. N. G. Fernando, C.J.. in refusing theapplication, considered the decisions in Liversidge v.Anderson™, Greene v. Secretary of States or Home Affairs'1, anddiscerned three different situations when powers are granted insubjective terms
where a power cannot be exercised unless certainphysical facts exist. In such a case if the validity of theexercise of the power is disputed, then the executive mustprove that the requisite facts actually existed.
where a power may be exercised by some authority if heis satisfied of the existence of certain facts. In such a casea court can inquire into the circumstances, in order to ascertain
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whether it was reasonable for the authrority to be satisfiedof the existence of the facts.
Where, as in the case before him, the power can beexercised merely because of an opinion that it is necessaryto exercise it ; in such a case the mere production of theinstrument whereby the power is exercised concludes thematter, unless good faith is negative. (The underlining ismine).
"In regard to this third category, it is no doubt true that theexistence of a particular state of mind is a question of fact, in thesense that it is not a question of law ; but the ascertainment ofthe existence of a state of mind surely involves considerationsand difficulties which do not enter into the ascertainment of theexistence of purely physical facts", at p 81.
Dealing with the burden of proof the Chief Justice observed—"It is prime facie shown that an official who makes an executiveorder had an antecedent motive against the person affected bythe order, or had an antecedent bias in favour of a personbenefited by the order, then I think the Court may call upon theofficial to disprove the existence of bias. But even if suchantecedent bias was to be shown in the circumstances of theinstant case, the special feature of the Permanent Secretary'sinability to disclose facts leading to the formation of his opinionmight well be a reason why a proper investigation cannot beheld. There may be instances in which the truth of a reason or anopinion stated by an official in an executive order can bedisproved by statements of the official containing some differentstatements or opinions or tending to show that the stated reasonor opinion stated in an executive order is manifestly absurd orperverse" at p. 79.
The reason for the refusal of the application in Hirdaramani'scase (above) was that although only an inference that thedetainee was taken into custody for the purpose of investigationeither into foreign exchange violations or into the detainee's
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involvement in the insurrection readily arose upon the factswhich had been established, yet the petitioner failed to establisha prima facie case against the good faith of the PermanentSecretary, and therefore the onus did not shift to the PermanentSecretary to satisfy the Court of his good faith.
But the following passages in the judgments seem to indicatethat the court was prepared to "lift the veil" to ascertain the truereasons for the detention. G.P.A. Silva, J.. for example, states thatwhen "a subject complains to court of an order restraining hisliberty, a Court is obliged not merely to take a look at the face ofthe order, but to go behind it and to satisfy itself that it has beenvalidly made" at p. 106. Likewise Samarawickrema, J. after statingthat the Court cannot substitute its own opinion for that of thePermanent Secretary, says this :— "It is, however, open to a partychallenging a detention order to show, if he can do so, that thePermanent Secretary never had the opinion that it was necessaryto make an order for the detention of the person named, and thatthe detention order was not made because he had formed anopinion as required by the regulation but for an ulterior object
Again if there is overwhelming ground for believing that no
reasonable Permanent Secretary could form the opinion that itwas necessary to make a detention order in respect of the personaffected, it might show that the Permanent Secretary was actingin bad faith, and that the detention order was not made on thebasis of the opinion required by the regulation, but for animproper purpose", at p.112.
In England, where the connection between the subject matterof the power to be exercised, and the purpose prescribed byStatute is expressed to be determinable by the opinion of acompetent authority, the earlier view was that all that the Courtcould do was to see that the power was exercised fully within thefour corners of the power granted and to see that those powerswere exercised in good faith. Apart from that, the Courts had nopower at all to inquire into the reasonableness, the policy, thesense or any other aspect of the transaction — Carltona Ltd.v.Commissioner of Works.12 The decision of the House of Lords inPadfield v. Minister of Agriculture, Fisheries & food13 is an
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important landmark in the change in the attitude of the Courts inthis area of administrative'law. The importance of the House ofLords' decision was underlined by Lord Denning M.R. in the caseof Breen v. Amalgamated Engineering Union14 when he said "thediscretion of a statutory body is never unfettered. It is adiscretion to be exercised according to law. That means at leastthis : the statutory body must be guided by relevantconsiderations, and not by irrelevant. If its decision is influencedby irrelevent considerations which it ought not to have taken intoaccount, then the decision cannot stand. No matter that thestatutory body may have acted in good faith, nevertheless thedecision will be set aside. That is established by Padfield v.Minister of Agriculture. Fisheries and Food which is a landmarkin modern administrative law" at 1 90.
Another feature of recent decisions has been the willingness ofthe Courts to assert their power to scrutinise the factual basesupon which discretionary powers have been exercised, de Smith294. A good example is afforded by Secretary of State v.Tameside15 where the subjective formulation was in these terms
"If the Secretary of State is satisfied either on complaint by anyperson or otherwise, that any educational authority …. have actedor are proposing to act unreasonably with respect to the exerciseof any power conferred or the performance of any duty imposed
by or under the Act, he maygive such directions as to the
exercise of the power or the performance of the duty as appearto him to be expedient". In the Court of Appeal Lord DenningM.B. stated that "the decision to which he (the Secretary of State)comes must be reasonable in this sense, that it is. or can besupported with good reasons, or at any rate be a decision whicha reasonable person might reasonably reach", at 671.
In the House of Lords. Lord Wilberforce said, in reference topowers formulated in subjective terms that "if a judgmentrequires, before it can be made, the existence of facts, then,although the evaluation of these facts, is for the Secretary ofState alone, the Court must inquire whether the facts exist, andhave been taken into account, whether the judgment has notbeen made on other facts which ought not to have been taken into
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account. If these requirements are not met. then the exercise ofthe judgment, however bona fide it may be. becomes capable ofchallenge" at 681.
Even if we are to accept the position that the power exercisedby the competent authority in the instant case is one exercisedmerely because of an opinion formed by him. and thus fallingwithin the third category of situations enumerated by the ChiefJustice in Hirdaramani's Case (above) it does not mean that theorder of the competent authority concludes the matter, even ifgood faith is established. It is open to the party who has beendeprived of his liberty to ask the Court to go behind the order inorder to satisfy itself that the order has been validly made or toestablish that there are overwhelming grounds for believing thatno reasonable competent authority could form the opinion that itwas necessary to make the orders (for the prohibition of thepublication or for the closure of the press) for the purpose of thepreservation of public order etc.
It also seems to me that there is a significant differencebetween the power to make an order for the detention of aperson under Emergency Regulation 17(which is in the sameterms as emergency regulation 18(1) under which Hirdramaniwas detained) and the power to make an order prohibiting theprinting or publication or distribution of a newspaper underregulation 14(3). In the case of a detention order, the Secretaryis empowered to make one with respect to any person, if he is ofopinion that with a view to preventing such person from acting ina certain manner, it is necessary so to do. The order is one madeto prevent a person from acting and it is one made merely on theopinion of the Secretary that unless he is so detained he wouldact in that manner. But in the case of the control by totalprohibition of publications the competent authority has to be ofopinion that there is. or has been or is likely to be matter which,in his opinion calculated to be prejudicial to the interest ofnational security etc. Where the opinion formed is that apublication is likely to be calculated to be prejudicial, then theopinion is a subjective opinion, which is similar to the opinionthat has to be formed before a detention order is made. But
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where the opinion is one that is formed on something that hasalready been published or is being published, the opinion is inmy view, not a purely subjective opinion. The opinion can beformed only if he is satisfied of the existence of certain facts,namely, the existence of publications which are calculated to beprejudicial to the interests of national security or the preservationof public order etc. In such an event the competent authority'spower can be exercised only if he is satisfied of the existence ofthose facts; the power he exercised seems to fall, not within thethird, but within the second of the situations enumerated by theChief Justice in Hirdramani's case. And in such a situation acourt can inquire into the circumstances, not in order tosubstitute its own opinion for that of the authority, but in order toascertain whether the authority was reasonable in his opinionthat the publications were calculated to be so prejudicial. In thewords of Lord Denning M. R. in the Tameside case (above) theCourt inquiry is directed towards a determination as to whetherthe opinion is one which "a reasonable person may reasonablyreach'. Although in such a determination the Court does notsubstitute its opinion for that of the authority, and the evaluationof the facts is for the authority, the Court can inquire whether thefacts exist, and if the facts do not exist the exercise of thejudgment, however bona fide it may be, becomes capable ofchallenge; the House of Lords has so held in Padfield &Tameside(above).
I may now summarise my conclusions on the several questionsof law that arise for determination —
The finality clause in section 8 of the Public SecurityOrdinance does not preclude the Court from examining andruling upon the validity of an order made under anyEmergency Regulation, when such order is challenged.
Emergency Regulation 14(3) is framed not entirely insubjective terms. The competent authority is empowered tomake an order under that Regulation only if he is satisfied ofthe existence of certain facts. The Court can inquire whetherit was reasonable for the authority to be satisfied of theexistence of those facts.
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The evaluation of those facts is for the competent authorityalone. The Court will not substitute its opinion for that of thecompetent authority.
The phrase "preservation of public order” in this Regulationmeans the prevention of disorder, or the maintenance ofpeace and tranquility.
The freedom of expression including the freedom of the press,is subject to such restrictions as are prescribed by theEmergency Regulations.
I shall now consider whether, on the affidavits of thecompetent authority and the documents annexed thereto, in theform of certain publications of the "Aththa" newspaper, factsexisted by reason of which the competent authority could haveformed the opinion that there have been news or views which, inthe opinion of a reasonable person were calculated to beprejudicial to the interests of national security, or thepreservation of public order, or the maintenance of supplies andservices essential to the life of the community, or matter incitingor encouraging persons to mutiny, riot or civil commotion. In thisconnection one has to bear in mind the requirement that therehas to be a reasonable nexus between the publication and themischief which the order of the competent authority is aimed atcurbing.
While I may say straightaway that none of the publicationsconsidered by the competent authority in forming his opinionwere either prejudicial to the interests of national security orprejudicial to the maintenance of supplies and services essentialto the life of the community, we are left with the question as towhether the competent authority was reasonable in the opinionhe formed that the publications, considered as a whole, werecalculated to be prejudicial to the preservation of public order orwere incitement or encouragement to persons to riot or causecivil commotion.
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It is self evident that in a democratic society, an essentialingredient in the composition that makes or should make for anequitable system is that of public opinion. Criticism plays a vitaland necessary role in safeguarding both the system as well asthe Rule of Law from being subverted. Indeed, in a truedemocracy the right of even the humblest citizen to publiclypoint out any type of misconduct or misrule or corruption goesto the core of what is accepted as a democratic society. This isthe cornerstone of freedom. In a word, the principle that theelected representatives in a democracy are not immune from anyform of comment or criticism for improper, illegal orquestionable conduct that harms the state or society or theindividual, is fundamental. No one is above the law; it is the Ruleof Law that is supreme.
At the other end of the scale is the need to maintain anduphold the sanctity and force of the same law which, whilepermitting the right to publish, criticise and comment, also mustensure that such publications or criticisms do not exceed thelimits of fairness, and above all, become a vehicle (worse thanwhat it may seek to condemn) that seeks to upset the very Rule of.Law under which it has the full freedom to inform the public andseek to mould its opinions.
The checks and balances against official abuse andmisconduct that are enshrined in the freedom of publication is acherished right in any free society. Likewise it is incumbent onthe publisher to carry out his responsibilities in such a way that itdoes not invite censure and criticism in turn. In a word, there areessential limits on the right to publish. The limitations are greaterwhen a nation is at war or under a state of emergency. The needfor a state of emergency is a matter entirely for the Executive.
It would be obvious that criticism which invites the public todisregard the Rule of Law itself is dangerous incitement to actoutside the Law. even in normal times. This seeks to subvert thevery foundation of a society whose raison d'etre and purpose arenot based on the whims of any special group, but on theinterests of the whole society within the strict confines of theframework of the law. And this interest of the whole community
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that forms our society, the Courts must uphold at all costs,whatever the source of abuse or improper conduct, without fearor favour.
The documentry evidence on which the competent authorityhas formed his opinion.
IRI is a copy of the 'Aththa' dated 1.10.82. It contains sixphotographs of events during the strike of June 1980 in thecourse of which a trade union leader by the name of Somapalamet with his death. There are pictures of women wailing over hisdead body. According to the respondents these pictures and thecaptions relating to them are calculated to show that becausethe workers demanded a wage increase of Rs.10/- per day. andwent on strike when the request was turned down, they wereassaulted by U.N.P. thugs. These pictures form part of a seriesnamed the "Bonaparte" series in all of which there is a caricatureof the President dressed in the uniform of a fascist dictator,carrying a pistol in hand, followed by a 'thug' clad in a sarongtucked up. The title given to this is ©abaeoS (cpos> 7)The
Deputy Solicitor General contends that these words "Bonaparte(No.7) Murderer" are calculated to remind the reader that thatthe President was responsible for the assaults on the strikers,and for the murder of Somapala.
IR2 is a publication of the same paper dated 2.10.82 headed"Canine Assembly". The meeting of the Cabinet is likened to ameeting of dogs. The D.S.G. invites us to interpret thispublication as being one calculated to ridicule the proceedingsof the Cabinet by likening it to an assembly of dogs. The article isscattered with insulting references to the President andMinisters.
1R3 is a letter to the editor published on 10.10.82 in a columntitled "election field". There is a reference to a threat to burndown houses including that of the writer, who intends meetingthe challenge because on his side too there are thugs. It predictsthat after the 20th (election day) the U.N.Pers will be thrashed bythe U.N.Pers themselves.
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IR4 is an open letter addressed to the President and published inthe "Aththa" of 9.10.82. The President is brought to ridicule. Heis asked to fly over Europe without clothes so that the spectatorson the ground will, fortunately for him, mistake him forWijeweera by reason of the "bell" symbol they will see on him.
IR5 is an editorial dated 13.10.82 criticising the President forthe insults hurled at the Sinhalese Kings. The insulting referenceis this "Do not come to the level of a dog by simply trying toattain kingship".
IR6 is a publication dated 19.10.82 which contains a number ofcartoons in which the President is shown as the head of acorrupt administration. The last of the captions depicts aninvitation by several corrupt persons to the President to rule onbehalf of them and promising that they would in turn commitcorrupt practices on behalf of him.
IR7 is an editorial dated 1 7.10.82 referring to the President as a<?(meaning "villain" according to Respondents, but"adharmishta' according to Petitioners) who has no mercy orkindness towards human beings whom he rules, and accusinghim of being a party to corruption because he has turned a blindeye on corruption. The President is described as a person whohas no shame and not fit enough to have clothes on.
IR8 is an account of a mock trial of the President held by theYama Raja (King of Hell) Bonaparte is dragged before the Kingand is accused of having committed corrupt practices in SriLanka. There is a reference to him as a narapanuwa (humanworm) and he is told that if he has committed even one out of thehundred acts alleged against him he ought to be put in a barrelof lodiya (boiling water) and tortured by making him climb thekatuembul tree (full of thorns). During the course of the trial hewas told that his balu (dogly) government had destroyed the holyIsland blessed by the Lord Buddha. He is found guilty and toldthat he has been a traitor to his country. New methods ofpunishment would be devised to make a hell for him separately.
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1R9 consists of a number of poems published in the issue of20.10.82 sent in by several readers of the paper, predicting thedefeat of the President and the victory of Kobbekaduwa. ThePresident is described in one of the poems as a villain who wasattempting to create a situation where people could not evenbreathe. The fires of the masses were raging ablaze to destroyhim with those flames. "No harm (you) bring even a broomstick,you can rake the fire with it".
1R10 is an editorial of 30.10.82 which is pure criticism andwhich does not exceed the limits permitted by law.
1R11 is a cartoon published on 27.10.82 in which the Presidentis depicted as encouraging an armed thug to violence. In thebackground is a house on fire with four people lying prostrate infour directions.
1R12 is an editorial of 2.11.82 which states that there are aseries of reports of incidents where U. N. P. thugs werecommitting murder, arson, assault and even dashing children todeath.
1R13 is an editorial of 1.11.82 which does not exceed thebounds of legitimate criticism.
We come now to 1R14 which is a set of documents, markedby the D.S.G. at a later stage as publications, also, relied upon bythe competent authority in forming his opinion.
1R14A is a flashback to the events at the Getambe templedepicted in eight photographs, the first of which portrays thePresident carrying a casket of Buddha relics on his head. Thecaption reads "All the anti religious activities were directed whilstcarrying this casket of relics on his head", thus inviting thereaders to infer that it was the President who was responsible fora Buddhist monk being driven away from the temple and for theerection of a barb wire fence surrounding the temple.
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1R14B is a flashback to the burning of some buildings in Jaffna.The photographs and caption are an invitation to the reader toinfer that "Bonaparte'' was responsible for the vandalism.
1R14D is the front cover of a booklet "Nuthana Devadatha"compiled by one Malalgoda and published in the "Aththa" on
It shows the President in the uniform of a dictatorattempting to destroy a Buddha statue enclosed by barbwire.
1R14F is a set of nine poems quoted from the same booklet. Theeighth verse is, in my view, an incitement to violence, for it says—
"without being afraid of any law
let all of us unite and be united like hooks of a golden chainAnd set fire to the despicable government of these fellows"
1R14E is a publication of 23.9.82 of the Bonaparte seriesdepicting in six photographs the damage caused to buildingsafter the general election of 1977 and claiming that they werethe work of U.N.P. thugs, the hunting hounds of Bonaparte.
1R14J is a publication of the Bonaparte series in the Aththa of
It contains photographs of the disruption of themeeting of the Bauddha Bala Mandalaya held at the BuddhistCongress Hall. The hitting and kicking of Buddhist Priests, thepelting of stones and the breaking of windows, and the draggingby his legs of Ediriweera Sarathchandra, are described as thework of the inhumane rule of Bonaparte.
1R14K is a cartoon in the paper of 10.10.82 depicting thePresident exhorting a member of the J.S.S. (a U.N.P. trade union)who is carcicatured as a thug, to do his dirty worknotwithstanding a report that the police were on the look out forthugs.
Two submissions were made by Mr. Nadesan relating to all thesedocuments.
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That there ought to be an affidavit of the competentauthority averring what he understood by these cartoons,editorials, mock trials etc; and that it is not for this Court to drawits conclusions from them. The answer to that is that most of thedocuments speak for themselves, and no further affidavit isnecessary apart from the averments in two affidavits filedwherein the competent authority has said that "the tenor andcontents of some of the articles and comments published priorto the date of the Presidential election were highly provocative,inflammatory, and likely to incite persons to violence andbreaches of the peace, and thereby imperil the maintenance oflaw and order".
That the publications made after the declaration ofEmergency, namely 1 R10, 1 R11, 1 R1 2, & 1 R13, only constitutelegitimate criticism. The competent authority ought to haveformed his opinion of them alone and not on what was publishedbefore the declaration of emergency. The answer to that is thatregulation 14(3) is not restricted to an opinion formed only onpublications made after the declaration; it contemplatespublications that had been made at a time prior to thedeclaration as well.
The question is whether on this material the competentauthority could reasonably have formed the opinion which heformed, namely that these publications were calculated to beprejudicial to the preservation of public order or were likely toincite and encourage persons to violence and breaches of thepeace. Some of them, in my view, could have incited persons tobreaches of the peace. Some others are highly defamatory, whilestill others are scurrilous and in extremely bad language. Takingalso into account the history of escalating post election violencein this country, and the mounting tension prior to theReferendurh I am of the view that the decision of the CompetentAuthority was not unreasonable, for the publications taken as awhole were certainly calculated to be prejudicial to thepreservation of public order. The orders PI 3 and P14 prohibitingthe publication of the "Aththa" newspaper were orders validlymade under powers vested in the 1 st respondent by Regulation
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14(3). There has. therefore, been no violation of the fundamentalright to the freedom of expression guaranteed by Article 14(1) (a)of the Constitution.
The question was raised as to whether the order for the sealingof the "Mahajana Press" was necessary, because besides thepublication of the "Aththa" the Press was engaged in the printingof other publications. The learned D.S.G. drew our attention tothe address of the "Mahajana Press" which is 91. Cotta Road,Colombo 8. The address of the 3rd respondent, who is theproprietor of the "Aththa" is also the same 91. Cotta Road.Colombo 8. The inference is therefore irresistable that theprincipal work done by the "Mahajana Press" was the printing ofthe "Aththa" newspaper, which had in its employment no lessthan 55 employees whose monthly wages added up to Rs.46,000/-. The other work undertaken by the Press would havebeen trivial, compared to the work involved in the printing of thisnewspaper. The logical consequence of the order prohibiting thepublication of the newspaper was the sealing of the press. Theorder for the sealing of the press was therefore, in my view, anorder validly made. There has been rio violation of thefundamental right to the freedom of engaging in ones lawfuloccupation, trade business or enterprise guaranteed by Article14(1) (g).
This application is accordingly refused, without costs.
RATWATEE. J. — I agree.
COLIN – THOME, J. — I agree.
ABDUL CADER, J. — I agree.
RODRIGO, J. — I agree.
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RODRIGO, J.
There was an island-wide poll on October 20, 1982 for theelection of the President of the Republic of Sri Lanka for a newterm. The incumbent President was re-elected with the results ofthe Poll being announced on October 21. But a state ofEmergency was declared on October 20 after the closure of thepoll to be effective throughout the island. This declarationreceived unanimous approval of the presidential candidates, allpolitical parties and the Parliament. It was said in the Parliamentthat post-election violence, though sporadic had occurredisland-wide earlier and the declaration of the Emergency wasboth opportune and pre-emptive. The declaration of Emergencybrought out Emergency Regulations. One Regulation — Reg. 14
of Emergency Regulations No. 3 of 82 empowered theCompetent Authority to make order prohibiting the printing andpublication of any newspaper wherein there has been or there isor there is likely to be any matter published, which, in hisopinion, is calculated to be prejudicial to the interests of nationalsecurity or the preservation of public order or the maintenance ofsupplies of services essential to the life of the community ormatter inciting or encouraging persons to mutiny, riot or civilcommotion and, in addition make order in such terms as toeffectively close the printing-press concerned. In the purportedexercise of this power the Competent Authority had made anorder on November 2. prohibiting the publication of a Sinhalesenewspaper tabloid called 'The Aththa" and to close the printing-press that was printing it at the time. The declaration ofEmergency was renewed on November 20 and the order madeon November 2 was also renewed with a modification in thewording of the grounds for his opinion.
Aggrieved by these two orders and more particularly by theorder of November 20 the Editor of the "Aththa" moved thisCourt by filing a petition for an order to annul the orders of theCompetent Authority. The publisher and the proprietor of theAththa too joined in the petition of the Editor. So did the ownersof the printing-press.
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It is not the case for the Petitioners that the declaration of astate of Emergency or the Emergency Regulations No. 3 of 1 982are invalid or of no force or effect in law. Regulation 14(3) itselftherefore is intra vires. But the Petitioners say that the ordersmade by the Competent Authority in the purported exercise ofhis powers in Reg. 14 (3) are null and void in as much as he hadmade the orders not because he ip fact held the opinion whichhe says in his orders he held but for a collateral purpose namelyto shut out legitimate but damaging political criticism andpropaganda which were anticipated from the "Aththa”newspaper against the President and the U.N.P if there was aGeneral Election or against a victory for the President if aReferendum instead of a General Election was held.
The submission that the Competent Authority (Authority) couldnot have held the alleged opinion is supported with reference tothe statement in the orders themselves which repeat wholesaleall the conditions specified in Reg. 14(3), the existence of one ormore of which will empower the Authority to make an order.Attention was also drawn to paragraphs — paras 20 and 23 — inthe affidavit of the Authority wherein some situations like themaintenance of essential services and mutiny and riotsmentioned in the order are omitted and new situations like unrestand dissention not found in the regulation or the order aredeposed to as grounds for forming the opinion that promptedthe orders.
The problem that arises at this point is what is the permissibleextent of judicial review of executive orders made underEmergency Regulations. The authorities cited from our ownCourts relate to detention orders that had given rise to habeascorpus applications and that too at a time when there were noentrenched justiciable fundamental rights in the Constitutionunlike now. There is no authority that had been cited whichrelates to the sealing of a press under Emergency Regulations.So it is contended that the judgments of our Courts dealing withEmergency orders of detention have no application to the instantmatter and more so because, unlike detention orders which areprompted by information which the executive normally does not
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make available to Court for reasons of public security, in a matterlike this, the publications in the newspaper in question thatinduced the opinion of the executive is not by its nature a secretand the Court can freely have a look at the publications forpurposes of review. The Authority in fact has made available tous the publications or most of them that had allegedly inducedhis opinion. He has also deposed that he had credibleinformation that some of the articles were in fact fanning unrestand dissention among various sections of the community withoutdisclosing the sources of that information though his Counselsaid that he was prepared to divulge them if we needed themwhile, on the other hand. Counsel for the Petitioners cited thisaverment as an instance of the Authority misdirecting himself byextraneous matters not covered by the regulations. That is to say,dissension and unrest among sections of community were notmatters mentioned in the regulations. But the point is theAuthority maintained that the publications are being madeavailable without prejudice to his legal plea that the orders arenot justiciable by this Court and that in any event they are madeavailable merely to rebut a prima facie case of lack of good faithin the Competent Authority if any such arises on the petitioner'saffidavit and not — he was emphatic — because there was aburden cast on him in law to establish a case for his opinion.
Before turning to authorities I must turn to the enactments andthe regulations which are relevant.
No challenge is offered to the vires of the Public SecurityOrdinance or any provision therein or to the EmergencyRegulations themselves. It follows therefore that the relevantprovisions of the Public Security Ordinance (Ordinance) and theEmergency Regulations (Regulations) must be given their fulleffect as far as their plain words carry them. Section 8 of theOrdinance enacts that "no Emergency Regulations and no order,rule or direction given thereunder shall be called in question inany Court”. Then, regulation 2(2) of Emergency Regulations No.3 of 1982 enacts that the Interpretation Ordinance shall apply tothe interpretation of any Emergency Regulation and of any ordersor regulations made thereunder as it applies to the interpretation
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of any Act or Ordinance or Law. The Interpretation (Amendment)Act No. 1 8 of 72 provides by the addition of a new Section 22 tothe Ordinance that:
"22. Where there appears in any enactment, whetherpassed or made before or after the commencement of thisOrdinance, the expression" shall not be called in question inany court," or any other expression of similar importwhether or not accompanied by the words "whether by wayof writ or otherwise" in relation to any order, decision,determination, direction or finding which any person,authority or tribunal is empowered to make or issue undersuch enactment, no court shall, in any proceedings andupon any ground whatsoever, have jurisdiction topronounce upon the validity or legality of such order,decision, determination, direction or finding, made orissued in the exercise or the apparent exercise of the powerconferred on such person, authority or tribunal:
Provided ■."
Then by the Interpretation (Amendment) Law No. 29 of 74.Section 24 of No. 18 of 72 was repealed and the new Section24 was substituted. This reads:
"24(1). Nothing in any enactment, whether passed before orafter the commencement of this Ordinance, shall bedeemed to confer upon any court jurisdiction to grantinjunctions or to make orders for specific performanceagainst the State, a Minister or a Deputy Minister, upon anyground whatsoever.
. No court shall upon any ground whatsoever grant anyinjunction or make any order against a state officer, if theeffect of the granting of such injunction or the making ofsuch order would be, whether directly or indirectly, torestrain the State, a Minister or a Deputy Minister fromproceeding with, or to compel the performance by theState, a Minister or a Deputy Minister of, any matter orthing.
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Before the Act No. 18 of 1972 was enacted the phrase "shallnot be called in question in any Court" appearing in Acts hadcome up for judicial interpretation. In the Land Commissioners v.Ladamuthu 16 the Privy Council observed :—
"Their Lordships consider that any question of finality in theLand Commissioners determination can only arise in regard tohis exercise of individual judgment whether he should orshould not acquire any land which he is authorised to acquireunder subsection (1). His personal judgment can only bebrought to bear upon the question as to whether or not heshould acquire land that is covered by the wording ofsubsection (1 )."
This was adopted and applied in Perera v. People's Bank17 inrelation to an action filed in the District Court. The Act No. 18 of 72was also considered in this case. Since this was an appeal from thedecision of the District Court how the provisions of the Act would beapplied by a superior Court in proceedings initiated before it wasnot decided. It seems to me that the legislature was desperate in itsattempt to put a brake on the practice of the Courts in reviewingorders, decisions, directions etc; of an administrative or executiveauthority made under enactments containing the expression "shallnot be called in quesion in any Court". This is made still moreevident by the enactment of the next amendment to theInterpretation Ordinance namely No. 29 of 74 which restricted everyCourt from granting injunctions and making orders for specificperformance against executive authority if such authority were theState or a State Officer, etc; if the effect of the order was to compelspecific performance of anything or any matter by a Minister or aDeputy Minister or the State. In this connection the observations ofViscount Simon, L.C. in Nokes v. DencasterAmalgamatedColieries Ltd.'6are relevant and useful.
"Judges are not called upon to apply their opinions of soundpolicy so as to modify the plain meaning of statutory words butwhere, in construing general words the meaning of which isnot entirely plain, there are adequate reasons for doubtingwhether the legislature could have been intending so wide an
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interpretation as would disregard fundamental principles, then,we may be justified in adopting a narrower construction. At thesame time, if the choice is between two interpretations, thenarrower of which would fail to achieve the manifest purpose ofthe legislation, we should avoid a construction which wouldreduce the legislation to futility and should rather accept thebolder construction based on the view that Parliament wouldlegislate only for the purpose of bringing about an effectiveresult."
There is. however, a distinction between the phrase "shall not becalled in question in any Court" and the phrase "final andconclusive". Where it is the latter phrase that attaches to anorder the opinion of Denning. L.J. .expressed in Regina v.Medical Appeal Tribunal ex parte Gilmore:19
"Notwithstanding that the decision is by a statute made final,certiorari can still issue for excess of jurisdiction or for error oflaw on the face of the record".
can well be applied. So that we find two situations with regard to thephrases "shall not be called in question in any Court" and "final andconclusive". In either event, the Courts will go behind an order tosee if any antecedent question such as whether, in the case of anacquisition of a piece of land, the land falls into a category of landauthorised to be acquired, has been erroneously answered orwhether jurisdiction has been exceeded. But where in a situationsuch as that envisaged by the Act No. 18 of 72 the Court isprohibited from inquiring and exercising jurisdiction to inquire orpronouncing on any ground whatsoever upon the validity or legalityof the order, decision etc. it is my view that the order of theCompetent Authority as in this case, cannot be reviewed by a Courtby removing the veil and going behind the order to probe mattersupon which the Competent Authority formed his opinion.
When giving full effect to s.22 of the Interpretation (Amendment)Act No. 18 of 1972. the Court is not abandoning its traditional roleas watch-dog of the liberty of the citizen or as custodian of thefundamental rights of the citizen enshrined in the Constitution. For.
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even without these phrases and words, in enactments and rules,the Law Lords of England had refused to review orders ofexecutive authority when such orders were made by the authorityunder enactments empowering them to make such orders inpursuance of an opinion without need to be satisfied as to theexistence of any antecedent fact or facts as a condition forholding such opinion, notwithstanding that as in the instant case,certain matters are specified at length in the regulations which,on a closer examination, are a mere narrative of events for theguidance of the authority forming the opinion and not asgrounding the jurisdiction of the authority to form such anopinion. In Secretary of State for Education and Science v.Tameside (Metropolitan Borough Council^5 Lord Wilberforcesaid:—
"The section is framed in a 'subjective' form – if theSecretary of State is satisfied. This form of section is quitewell known, and at first sight might seem to exclude judicialreview. Sections in this form may. no doubt, exclude judicialreview on what is or has become a matter of purejudgment."
The phrase here is "is satisfied" as against "is of opinion". Stillit was said to be framed "in subjective form"; a fortiori, thephrase "is of opinion" is subjective and does not attract anobjective test. It is narrower than the phrase "is satisfied".Restrictions sought to be put on the phrase by suggestions ofrequirements of good faith which connotes lack of collateralpurpose and dishonesty have not found favour in English cases.In Nakkuda AH v. Jayaratne (Controller of Textiles) 20 LordRadcliffe expresses himself as follows:—
"If the question whether the condition has been satisfied is tobe conclusively decided by the man who wields the power thevalue of the intended restraint is in effect nothing. No doubt hemust not exercise the power in bad faith: but the field in whichthis kind of question arises is such that the reservation for thecase of bad faith is hardly more than a formality"
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The use of the word "opinion" in the Emergency Regulation inquestion being narrower than the phrase "is satisfied" it wouldappear that even a dishonest or wrong opinion is not a groundfor review.
This approach may at first appear to deprive the citizen of anylegal remedy. But in Smith v. East EUoe Rural District (at 750) 21Viscount Simonds observed,
"Anyone bred in the tradition of law is likely to regard with littlesympathy legislative provisions for ousting the jurisdiction ofthe Court, whether in order that the subject may be deprivedaltogether of remedy or in order that his grievance may beremitted to some other tribunal. It may be that the Legislaturehad not in mind the possibility of an order being made by alocal authority in bad faith or even the possibility of an ordermade in good faith being mistakenly, capriciously or wantonlychallenged. This is a matter of speculation. What is abundantlyclear is that words are used which are wise enough to coverany kind of challenge which any aggrieved person may think fitto make. I cannot think of any wider words. Any addition wouldbe mere tautology. But. it is said, let those general words begiven their full scope and effect, yet they are not applicable toan order made in bad faith, but. My Lords, no one can supposethat an order bears upon its face the evidence of bad faith. Itcannot be predicated of any order that it has been made in badfaith until it has been tested in legal proceedings, and it is justthat test which the paragraph bars."
Then he continues:—
"There is nothing ambiguous about the paragraph. There is noalternative construction that can be given to it; there is in factno justification for the introduction of limiting words such as "ifmade in good faith", and there is less reason for doing so whenthose words would have the effect of depriving the expresswords "in any legal proceedings whatsoever" of their fullmeaning and content."
"An order even if not made in good faith is still an act capable oflegal consequences. It bears no brand of invalidity on its forehead."
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East Elloe case was concerned with property rights relating toa compulsory purchase of land. Not very different from theinstant case, which relates not to a detention order. But wheredetention orders were sought to be reviewed as in Liversidge v.Anderson -10 and in Greene v. Secretary of State -11 the sameprinciple was applied. Viscount Maugham in Greene's case stated:
"It would be useless to attempt to examine the truth of the factalleged in an order in a case where the fact relates to thepersonal belief of the Secretary of the State formed partly atleast on grounds which he is not bound to disclose."
In the case of Liversidge. Viscount Maugham pointed out thatRegulation 18 (b) requires the Secretary of State to have reasonablecause to believe two different things. In regard to the second thing,namely, the belief in the need for the detention of a particularperson he made the following observation.
"But then, he must at the same time also believe somethingvery different in its nature, namely, that by reason of the firstfact it is necessary to exercise "control over" the person in• question. To my mind this is so clearly a matter for executivediscretion and nothing else that I cannot myself believe thatthose responsible for the order in Council would havecontemplated for a moment the possibility of the action of theSecretary of the State being subject to the discussion,criticism, and control of a Judge in a Court of Law."
The cases above referred to were considered and applied inHirdaramani v. Ratnavet 9 H.N.G. Fernando, C.J. Gunasekera v.Ratnavel 22 Alles, J. and Thamotheram, J. While G.P.A. Silva, S. P. J.
• and Samarawickrame, J. in the first case and Wijayatilake, J. in thesecond case took views different from those of the other Judges, theChief Justice in the former case and the majority of Judges in thelatter case took the view that the orders of the Competent Authorityare not justiciable if they are ex facie valid, and the Court isprecluded from considering "the only possible issue which can beraised when a detention order valid on the face of it is producedbefore the Courts namely, the issue of good faith. The Chief Justice,
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however, refers in his judgment in Hirdaramani case to what hethought was a conflict of judicial opinion on this matter betweenthe East Elloe case and the case of Anisminic Ltd. v. ForeignCompensation Commission 23. But Alles, J. referring to thisobservation of the Chief Justice has said in the Case of Gunasekerathat in the Anisminic case the tribunal concerned had its jurisdictionprescribed and defined and it was the overstepping of thatjurisdiction that constituted a successful challenge to its order. Infact the East Elloe case was not considered of any assistance in theAnisminic case by Their Lordships in deciding that case and theprinciple enunciated in the East Elloe case was not departed from.
So that even where the personal liberty of a subject wasconcerned as in Hirdaramani and Gunasekera cases, the viewtaken was that the detention orders are beyond judicial review. Itmust then be more so where the party aggrieved is complaining onlyagainst a prohibition to say and publish things by reason of an orderunder Emergency Regulations. It must be remembered that theHirdaramani case was decided before the Act No. 18 of 72 and theGunasekera case a few days after the said Act was enacted. But theAct had not been considered in that case either. Even without aconsideration of the Amending Act 18 of 72 the judges had takenthe view in the Hirdaramani and Gunasekera cases that thedetention orders are beyond judicial review, how much more so hasit to be the position by reason of the provisions of the Act No. 18 o.f72.
It is pertinent to remind ourselves that Courts are not governingthis country. Jurisdiction of the Courts themselves is a creation oflegislation which the Parliament makes under an authority derivedfrom the supremacy of the people. In Western style democraciessuch as Sri Lanka is. this supremacy is real and assertive. Thepeople will replace the Parliament if it makes unjust legislation orpermits the executive to make unjust orders for which his Ministermust take responsibility. The judicial system can only be as just aspossible and permitted. The solicitude of the Courts for the liberty ofthe subject during an Emergency rule need no longer beoverstretched particularly in present day Sri Lanka wherein sits aGovernment with overwhelming genuine popular support after an
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honest referendum and a clean plebiscite. The rationale behindsuch solicitude is rooted in English history and was carried hereduring the British Colonial rule when the rulers did not dependon the will of the people unlike now.
Another consideration that impells me to hold that order underEmergency Regulations are not reviewable by Courts, in any caseby petitions under s.126 of the Constitution relating to allegedinfringement of fundamental rights, is the lack of adequateconstitutional machinery to subject the Competent Authority tocriticism and control of a Judge during an Emergency. Affidavitsfrom the executive are required to be filed within a week of theservice of the petition, and this puts the Department of theCompetent Authority and the Attorney-General under intolerablepressure and strain as was visible in the case of the DeputySolicitor-General appearing for the Respondents in this case. Theconstitutional machinery is not geared to meet this kind ofchallenge during an emergency when state officers ought to bemore usefully left alone to deal with urgent matters needingprompt attention and decisions in the conditions of anEmergency.
For these reasons, I would refuse this application. In all thecircumstances, however, I make no order for costs.
Application refused.