TILWIN SILVA v. RANIL WICKREMASINGHE AND OTHERS

002-SLLR-SLLR-2007-V-2-TILWIN-SILVA-v.-RANIL-WICKREMASINGHE-AND-OTHERS.pdf


CA
THwin Silva v Ranil Wickremasinghe and Others
15
TILWIN SILVAvRANIL WICKREMASINGHE AND OTHERSCOURT OF APPEALSRISKANDARAJAH. J.
CA 461/2002JUNE 2, 2006SEPTEMBER 22,2006NOVEMBER 23, 2006JANUARY 18, 2007
Writ of Certiorari – Quash decision to sign Cease Fire Agreement (CFA) -Agreement illegal? – Null and void? – Constitution Article 4 (b) Article 29 readwith Article 30 (1), Article 43(1) 6th Amendment Article 140 – Executive power- Collective responsibility of Cabinet – Policy decision – Legality of enteringinto an agreement with the LTTE? – Prevention of Terrorism Act No. 48 of1979 — Judicial Review — Policy decisions — Could the Court consider theillegality or mala fide of a policy decision?
The petitioner sought a writ of certiorari to quash the decision of the 1 strespondent Prime Minister to sign the CFA, and further sought a declarationthat the said agreement is illegal, null and void – and a writ of prohibition notto sign any similar agreements.
Held:The petitioner's prayer for a declaration to declare that the agreement isillegal, null and void cannot be granted, as Article 140 does not empowerthis Court to grant and issue orders in the nature of declarations. Thepetitioner's prayer for a writ of prohibition not to sign any similaragreement is vague wide and doubtful and such relief cannot be granted.
Held further:The Cabinet which consists of the President – Head of the Cabinet, thePrime Minister and the Cabinet of Ministers is in charge of the directionand control of the Government and they are collectively responsible toParliament (Article 43 (1)). When these provisions are considered, in thelight of the concept of collective responsibility of the Cabinet the Presidentand the Cabinet are part of one unit that is collectively responsible.
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(3)
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The deliberation within the Cabinet amongst its m
President, Is a matter for the concern of the Cabinet ann^ ,ncIuding the^^ ….. u D,net and not of this Court.
Once the act is considered to have been carried out k ~
consequent to a Cabinet decision then it nere.c^y-. ® Cabinet orPresident- member and Head of the Cabinet is n»r+ fo,low.scollective nature of the Cabinet decision. Hence the. * • .ancl ,n.Cabinet to enter into a CFA with the LTTE cannot c .®c,s,on 0 ihetaken without the concurrence of the President.a,d *° ^ave ^een
PerSriskandarajah, J.:
"As a matter of fact this agreement was not terminated bv th o
Sri Lanka even though this was in operation d. ,nrf G°ver^ment®°*Presidents of the Republic and two GovernmentsExecV!,ve
parties – this shows the desire of the President ann <"/ferent Polltlpalgovernments to have the said agreements in force tnconseCutive
enumerated in the preamble of the CFA“.nieve the objects
Cabinet which is headed by the President and which it>. udirection and the control of the Government could S 10 c^arQe °f !heto enter into an agreement with the LTTE and the 1st rA»a pollcy dec,s,onthe Prime Minister and a member of the Cabinet pPndent wh° wasagreement for and on behalf of the Government of Sri Lanka"^ '° ° 30
Once a policy decision Is taken by the Cabinet to enter int^ ~ ^,-a -.u .uLTTE, it could be implemented by the Executive.3 CFA W"h ,he
The petitioner’s contention that the CFA binds the QoUflmm0ntprosecute the violators of the Prevention of Terrorism A™ ?PTA isuntenable. The gazetted regulations show that, the violations of the PTAare proceeded while the CFA is in full force.S ot tne RTA
The challenge of the petitioner that the CFA is in violation of the conceptof State and Sovereignty cannot be maintained. Judicial Review could bebased upon the legal rules which regulate the use of governmental powerThe challenges are based on the elementary concept of illegalityirrationality, proportionality and procedural impropriety. The petitionercannot complain to this Court In judicial review proceedings that the CFAalienated the Sovereignty of the people or violates the concept of State.The preamble to CFA sets out the intention of parties. The short andsimple definition that can be given to the CFA is that it is a value decisionattached to efforts to resolve a conflict. From the preamble it is clear thatthis document is a policy document on a political issue. It Is axiomatic thatthe contents of a policy document cannot be read and inteqrated asstatutory provisions. Too much of legalism cannot be imported in
understanding the scope and meaning of the clauses contained in policyformulations.3
(4)
(5)
(6)
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Tilwin Silva v Rani/ Wickremasinghe and Others
17
For a policy decision to have legal consequences or legal impact thatpolicy decision should have been taken either by invoking a statutoryprovision or statutory power should have been conferred on the saiddecision, it is pertinent to note that neither statutory provision had beeninvoked nor statutory power had been conferred on the CFA.
(7) CFA is a mere decision of policy to build confidence between parties tofind a negotiated solution to the ongoing ethnic conflict in Sri Lanka. Asthere is no statutory power conferred on the CFA or involved on thetermination of the CFA it has no legal consequences or legal impact, itcannot be tested in Court for its legality and the CFA is not amenable tojudicial review.
APPLICATION for a writ of certiorari / prohibition.
Cases referred to:
Parameswary Jayathevan v Attorney-General and others 1992 2SriLR
337 at 360.
In Re the 13th Amendment to the Constitution and the Provincial Council
Act 1982 2 Sri LR 312 at 322.
In Re the 19th Amendment to the Constitution 2002 3 Sri LR 85.
Wimal Weerawansa and 13 others v Attorney-Generai and 3 others(p Toms Case).
Ram Jawa v State of Punjab 1955 2 Sri LR at 235 and 236.
Blackburn v Attorney -General 1971 1 WLR 1037.
Premachandra v Major Montague Jayawickrama 1994 Sri L.R. 90 at 107.
Baker v Carr (1962) 369 US 186.
Bhut Nath v State of West Bengal AIR 1974 SC 806, 811
BALCO Employees Union (Legal) v Union of India and others AIR 2002SC 350.
Narmada Bachao Andoian v Union of India and others 2000 10 SSC 664at 763.
Manohara de Silva PC with Udaya Gammanpila, Pasan Gunasena, BandaraThaiagune and Anusha Perusinghe for the petitioner.
Harsha Fernando SSC for the 1st, 26th and 28th to 60th respondents.
Shibly Aziz PC with A.P. Niles and Rohana Deshapriya for the 3rd to 25threspondents.
2nd respondent absent and unrepresented.
Cur.adv. vuit.
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March 6. 2007
SRISKANDARAJAH, J.The Petitioner is the General-Secretary of the Janatha VimukthiPeramuna (JVP) which is a recognized political party in Sri Lanka.The 1 st respondent was the Prime Minister of Sri Lanka during therelevant time and the 2nd respondent, is the Leader of theLiberation Tigers of Tamil Eelam, (LTTE). 3rd to the 25threspondents were members of the Cabinet of Ministers of Sri Lankaduring the relevant time. Consequent to the Parliamentary GeneralElection which was held on 2nd of April 2004 a new Cabinet ofMinisters have been appointed and the new Cabinet of Ministersare added as the 27th to the 59th respondents.
The petitioner in this application has sought a writ of Certiorarito quash whole or a part of the 'Agreement on a ceasefire betweenthe Government of the Democratic Socialist Republic of Sri Lankaand the Liberation Tigers of Tamil Eelam' marked as P5 and also awrit of Prohibition restricting and or prohibiting the respondentsfrom giving effect to and or acting in any manner to give effect tothe decision and or undertaking in the said agreement in whole orin part. The said agreement is hereinafter referred to as CFA.
The CFA in its preamble states:
“The overall objective of the Government of the DemocraticSocialist Republic of Sri Lanka (hereinafter referred to as theGOSL) and the Liberation Tigers of Tamil Eelam (hereinafterreferred to as the LTTE) is to find a negotiated solution to theongoing ethnic conflict in Sri Lanka.
The GOSL and the LTTE (hereinafter referred to as the Parties)recognize the importance of bringing an end to the hostilities andimproving the living conditions for all inhabitants affected by theconflict. Bringing an end to the hostilities is also seen by theparties as a means of establishing a positive atmosphere inwhich further steps towards negotiations on a lasting solutioncan be taken.
The parties further recognize that groups that are not directlyparty to the conflict are also suffering the consequences of it.This is particularly the case as regards the Muslim population.
CA
Tilwin Silva v Rani! Wickremasinghe and Others
tSriskandaraiah, J.)
19
Therefore the provisions of this Agreement regarding thesecurity of civilians and their property apply to ail inhabitants.
With reference to the above, the Parties have agreed to enterinto a ceasefire, refrain from conduct that would undermine thegood intentions or violate the spirit of this agreement andimplement confidence-building measures as indicated in thearticles below."
Article 1 of the CFA titled "Modalities of Ceasefire" and statesthat the parties have decided to enter into a ceasefire. Articles 1.2and 1.3 are titled “Military Operations" and deals with the cessationof military action. Articles 1.4 to 1.8 are titled "Separation of forces"and deals with the separation of the forces of the Government andthe LTTE. Articles 1.9 to 1.13 are titled "Freedom of movement" anddeal with the movement of the forces of each side through theterritories controlled by the other side. Article 2 is titled "Measuresto restore normalcy" and deals with various "Confidence – buildingmeasures”. Article 3 is titled "The Monitoring Mission" and dealswith the setting up of an international monitoring mission. Article 4is a miscellaneous provision, and is titled "Entry into force,amendments and termination of the Agreement". It is an admittedfact that the CFA came into force on 23.2.2002 and is still in force.
The petitioner submitted that by the CFA, the aforementioned1st respondent has agreed to bind the government of Sri Lanka asenumerated in his petition in paragraph 9(a) to (k). He contendedthat the 1st respondent when he signed the CFA was only thePrime Minister of Sri Lanka and he was not clothed with any power,authority or jurisdiction to bind the Government of the Democratic' Socialist Republic of Sri Lanka in the said CFA.
The petitioner further contended that the 1st respondent in hiscapacity as the Prime Minister is not a member or an agent of theExecutive of the Republic. The executive power of the People shallbe exercised by the President of the Republic under Article 4(b) ofthe Constitution of the Democratic Socialist Republic of Sri Lanka(hereinafter referred to as Constitution). According to Article 43(1)of the Constitution, there shall be a Cabinet of Ministers chargedwith the direction and control of the Government of Sri Lanka. Itwas held in Parameswary Jayathevan v Attorney-General and
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others0) at 360 that the Cabinet can exercise certain executivepowers. In Re the 13th Amendment to the Constitution and theProvincial Council S//A2) at 322, it was held that ProvincialGovernors can exercise the executive power of the President.However the petitioner contended that the Prime Minister as amember of the Cabinet or otherwise cannot exercise the executivepower of the President. The Prime Minister is merely the memberof Parliament who in the President's opinion is mostly likely tocommand the confidence of Parliament (Article 43(3) of theConstitution). Accordingly, the Prime Minister's post is in theLegislature and not in the Executive. The Supreme Court held in Rethe 19th Amendment to the Constitution<3> that the Executivecannot alienate its powers or functions to the Legislature. Hencethe 1 st respondent has no capacity to enter into an agreement onbehalf of the Government of Sri Lanka.
The petitioner contended that whereas the President of theDemocratic Socialist Republic of Sri Lanka is the Head of the State,the Head of the Executive and of the Government and theCommander in Chief of the Armed Forces, vide Article 30(1 )of theConstitution and vested with the executive power of the Republic ofSri Lanka including the defence of Sri Lanka vide Article 4(b) of theConstitution, the President was neither a party nor had givenconcurrence to the CFA. The petitioner relied on a news item whichappeared in the 'island' newspaper of 23.2.2002 marked P6 whichnews item stated "the Presidential Secretariat stated that thePresident was only informed of the said purported agreement onlyafter the 2nd respondent had placed his signature and just fewhours prior the 1st respondent was scheduled to place hissignature thereon. The President had expressed her surprise andconcern with regard to the manner in which this purportedagreement had been prepared."
The petitioner admitted (in paragraph 13 of his affidavit) that thesaid agreement had been briefed by the 1st respondent the PrimeMinister to the Cabinet consisting of the 3rd to the 25threspondents and a decision was taken to enter into the CFA.
Before considering the capacity of the 1st respondent (ThePrime Minister) to enter into the CFA it is important to consider the
Titwin Silva v Rani! Wickremasinghe and Others
CflfSriskandaraiah. J.)
exercise of the Executive power under the Constitution.
The President of the Republic of Sri Lanka is the Head of theState the Head of the Executive and the Head of the Government(Article 30(1) of the Constitution). The Cabinet which consists of thePresident (as the member and the head of the Cabinet ofMinisters), the Prime Minister (who is a member of the Cabinet) andthe Cabinet of Ministers, is in charge of the direction and the controlof the Government of the Republic and they are collectivelyresponsible to Parliament (Article 43(1) of the Constitution). Whenthese provisions are considered in the light of the concept of"collective responsibility" of the Cabinet, the President and theCabinet are part of one unit that is collectively responsible.
When commenting on the confidentiality and collectiveresponsibility of the Cabinet a former Judge of the ConstitutionalCourt Joseph A.L. Cooray in the Book titled"Constitutional andAdministrative Law of Sri Lanka" – 1995 at page 191 stated:
"The proceedings of the Cabinet of Ministers are secret andconfidential. The secrecy of Cabinet decisions is necessary forarriving at a compromise and agreement through frankdiscussions among the Ministers under the direction of thePresident, as Head of the Executive and the Cabinet. Thispractice gives effect to the principles of public unanimity andcollective responsibility and also tends to promote strong andstable government."
The deliberation within the Cabinet amongst it membersincluding the Head of the Cabinet (the President of Sri Lanka) is amatter for the concern of the Cabinet and not of this court. TheSupreme Court in Wimaf Weerawansa and 13 others v Attorney
General and 3 others<4> when dealing with the Communicationsbetween the President and the Cabinet held thus;
"in this instance the MOUs has been tabled in Parliament andthere is no evidence before this court that the Cabinet ofMinisters has not been apprised of the MOU at the time of itsexecution. In any event if there is a fault in these respects on thepart of the President, they are matters for the immediateconcern of the Cabinet of Ministers and Parliament and not ofthis Court…"
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Therefore, once an act is considered to have been carried outby the Cabinet or consequent to a decision of the Cabinet, then itnecessarily follows that the President who is a member of theCabinet of Ministers and Head of the Cabinet of Ministers (Article43(2) of the Constitution) is part of it and and is clothed in thecollective nature of the cabinet decision. Hence the decision of theCabinet to enter into a CFA with the 2nd respondent cannot be saidto have been taken without the concurrence of the President.
In any event Article 4.4 of the CFA provides for the unilateraltermination of the CFA. It provides:
‘This agreement shall remain in force until notice of termination
is given by either party to the Royal Norwegian Government.
Such notice shall be given fourteen (14) days in advance of the
effective date of the termination."
As contended by the petitioner if the President of the Republicat the time of the execution of this agreement or at any timethereafter expressed his dissatisfaction of the said agreement, asthe Head of the Government of Sri Lanka the President would haveunilaterally terminated the said agreement. As a matter of fact thisagreement was not terminated by the Government of Sri Lankaeven though this was in operation during two Executive Presidentsof the Republic and two governments of different political parties.This shows the desire of the President and the consecutivegovernments' to have the said agreement in force to achieve theobjects enumerated in the preamble of the said agreement.
Once a policy decision is taken by the Cabinet to enter into aCFA with the 2nd respondent it could be implemented by theExecutive.
Even though the Constitution has not specifically provided forthe separation of powers the legislative scheme of the Constitutionhas provided for a functional separation of powers. This could beseen in Article 4 of the Constitution and elaborated under separateChapters of the Constitution. The provisions relating to ExecutivePowers is contained in Chapters VII, VIII and IX, the LegislativePowers in Chapters X to XII and the Judicial Power in Chapters XVand XVI.
CA
TVwfn Silva v Ran!I Wickremaslnghe and Others
($riskandaraiah. J.)
23
By virtue of Article 4(b) of the Constitution the executive powershall be exercised by the President. Even though the executivepower cannot be comprehensively defined, the Indian SupremeCourt in Ram Jawa v The State of Punjab<5> observed:
"It may not be possible to frame an exhaustive definition of whatexecutive function means and implies. Ordinarily the executivepower connotes the residue of governmental functions thatremain after legislative and judicial functions are taken away,subject of course, to the provisions of the Constitution or anylaw.
The executive function comprises both the determination ofpolicy as well as carrying it into execution, the maintenance oforder, the promotion of social and economic welfare, thedirection of foreign policy, in fact the carrying on and supervisionof the general administration of the State."
The Executive provided in the Constitution includes ThePresident (Chapter VII), The Cabinet of Ministers (Chapter VIII) andThe Public Service (Chapter IX). As executive power encompassesa wide area, the President, while personally performing some of theexecutive functions, operates the rest of the executive functions ofgovernment through the Cabinet of Ministers and Public Officers.
The President appoints the Prime Minister (Article 43(2) of theConstitution) a Member of Parliament who in his opinion is mostlikely to command the confidence of Parliament. The President,Prime Minister and the Ministers are members of Cabinet (Article43(2) of the Constitution) and the Cabinet is responsible to theParliament (Article 43(1) of the Constitution). In relation to theappointment of Cabinet of Ministers it is laid down that thePresident shall make such appointment in consultation with thePrime Minister. However there is no obligation on the part of thePresident to follow the advice of the Prime Minister. In thesecontexts the Prime Minister has a pivotal role to play, as being theMember of the Cabinet and Member of Parliament who commandsthe confidence of Parliament, especially when the President andthe majority of the members of Parliament are represented by twodifferent political parties which has different political premise. Inthis instant the Prime Minister was the head of the governing party
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and the President belongs to the party which was in the opposition.Hence the submission of the petitioner that the post of the PrimeMinister is in the legislature and not in the executive has no merit.
In Wimal Weerawansa and 13 others v Attorney-Genera! and 3others (supra) the Supreme Court observed that there is noillegality, in the President of the Republic entering into aMemorandum of Understanding for the establishment of a TsunamiOperation Management Structure (P-TOMS), and in this instant theMOU has been agreed and accepted on 24.6.2005 by theSecretary, Minister of Relief, Rehabilitation and Reconstruction (the3rd respondent in the said case) for and on behalf of theGovernment of the Democratic Socialist Republic of Sri Lanka(GOSL) and the 4th respondent (in the said case) for and on behalfof the Liberation Tigers of Tamil Eelam (LTTE). In the abovecircumstances a Public officer has agreed and accepted for and onbehalf of the Government of Sri Lanka. As I have discussed abovethe President, while personally performing some of the executivefunctions, operates the rest of the executive functions ofGovernment through the Cabinet of Ministers and Public Officers.Hence the submission of the petitioner that the Prime Ministercannot sign an agreement for and on behalf of the Government ofSri Lanka has no merit.
From the above analysis it is clear that the Cabinet which isheaded by the President and which is in charge of the direction andthe control of the Government could take a policy decision to enterinto an agreement with the 2nd respondent and the 1 st respondentwho was the Prime Minister and the member of the Cabinet couldenter into an agreement for an on behalf of the Government of SriLanka. In view of the above the submissions of the petitioner thatthe 1st respondent is not clothed with any power or authority orjurisdiction to sign the CFA, in as much as the President of theDemocratic Socialist Republic is the Head of the State and the 1strespondent has usurped the powers of the President by enteringinto the aforesaid agreement and it is in violation of Article 30 of theConstitution, have no basis.
The petitioner has also challenged the said agreement on thebasis that no one has authority to sign any agreement with the 2ndrespondent and /or the LTTE. The said agreement namely;
CA
Tiiwin Silva v Ranil Wlckremaslnghe and Others
(Sriskandaraiah. J.)
25
'Agreement on a ceasefire between the Government of theDemocratic Socialist Republic of Sri Lanka and the LiberationTigers of Tamil Eelam' (P5) was signed by the 1st respondent withthe 2nd respondent the leader of the LTTE, The petitionercontended as the LTTE was proscribed by the Government of SriLanka under the Prevention of Terrorism Act, any agreementsigned by any body including the 1st respondent with the LTTE isillegal and bad in law.
This question was dealt with by the Supreme Court in WimalWeerawansa and 13 others v Attorney-General and 3 others(supra). Where the Chief Justice Sarath N. Silva when deciding thealleged infringement of fundamental rights relate to theMemorandum of Understanding (MOU) for the establishment of aTsunami Operation Management Structure (P-TOMS), which hasbeen agreed and accepted on 24.6.2005 by the 3rd respondent (inthe said case), the Secretary, Ministry of Relief Rehabilitation andReconstruction for and on behalf of the Government of theDemocratic Socialist Republic of Sri Lanka (GOSL) and the 4threspondent (in the said case) for an on behalf of the LiberationTigers of Tamil Eelam (LTTE) held;
"Mr. S.L. Gunasekera, contended that it is illegal to enter into theMOU with the LTTE which he described as a terroristorganisation that caused tremendous loss of life and property inthis country. The contention is that even assuming that thePresident could enter into a MOU for the object and reasonsstated in the preamble, the other party to the MOU is not anentity recognised in law and should not be so recognised due toantecedent illegal activities of the organisation.
In this regard I have to note that the matter so strenuously urgedby Counsel cannot by itself denude the status of the 4threspondent to enter into the MOU. The circumstances urged byCounsel cannot and should not have the effect of placing the 4threspondent and the Organisation that he seeks to representbeyond the rule of law. We have to also bear in mind thatalready a Cease-Fire Agreement has been entered into on23.2.2002 between the Government of Sri Lanka and the LTTE,which according to section 2(b) of the MOU “shall continue in fullforce and effect".
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In these circumstances there is no illegality in entering into the
MOU with the 4th respondent…"
In this judgment the Supreme Court has unequivocally heldthat the Government entering into an MOU with the LTTE is notillegal. Therefore the petitioner's claim that any agreementsigned by anybody including the 1st respondent with the LTTEis illegal and bad in law is untenable.
The petitioner also challenged the said agreement on the basisthat certain clauses mentioned in the agreement binds thegovernment and thereby alienated the sovereignty of the peoplewhich includes the power of government. The. petitioner submittedthat the 1st respondent agreed to bind the Government in thefollowing manner which violates certain Articles of the Constitution.
by agreeing to stop all the offensive military operations againstthe LTTE which is a proscribed organisation under the provisionsof the Prevention of Terrorism Act inter-alia in violation of Articles1,2, 3, 4, 27, 28, 30,157A of the Constitution,
by restricting the right of movement of Sri Lanka ArmedForces inter-alia in violation of Articles 1, 2, 3, 4,14, 27, 28,30, 157A of the Constitution,
by providing confidential information with regard to defencelocalities to an organisation called the Sri Lanka MonitoringMission consisting of non-citizens inter-alia in violation ofArticles 1, 2, 3, 4, 27, 28, 30, and 157Aof the Constitution,
by restricting the use and possession of ammunition andother military equipment by the armed forces inter-alia inviolation of Articles 1,2,3,4,27, 28, 30, 157A of theConstitution,
by restricting the Armed services personnel from entering intoareas specified in article 1.4 and 1.5, inter-alia in violation ofArticles 1,2,3, 4, 27, 28, 30 and 157A of the Constitution,
by demarcating areas in the territory of Sri Lanka to which thearmed forces or any agency of the government would nothave access and thereby handing over and/or granting fullcontrol of certain areas to an armed terrorist organisation
CA
Tilwin Silva v Ranii Wickremasinghe and Others
(Sriskandaraiah. J.)
27
inter-alia in violation of Articles 1,2, 3, 4, 27, 28, 30,157A ofthe Constitution,
by permitting members of an armed terrorist organisationnamely the LTTE to man check points inter-alia in violation ofArticles 1,2, 3, 4, 27, 28, 30, 157A of the Constitution,
by declaring that the Prevention of Terrorism Act entered intoby Parliament and presently part of the law of the land bemade ineffective and agreeing not to prosecute violators ofthe said Act under the provisions of the said Act inter-alia inviolation of Articles 3, 4(a), 27, 28, 75 and 76 of theConstitution and by usurping the legislative and judicialpower of the people,
by abdicating the power of the government by restricting theright of the armed forces to protect the territorial integrity ofthe State.
whilst permitting LTTE to carry and possess arms anddenying other Tamil Groups (Opposed to the LTTE) and otherpolitical parties to carry weapons thereby denying equalitybefore law in violation of the Article 12(1) and 12(2) of theConstitution.
compelling the Sri Lankan Government to absorb illegalarmed cadres to the Sri Lankan armed forces in violation ofthe criteria of recruitment under the Army Act, Navy Act andAir Force Act and the breach of Article 12(1) and 12(2) of theConstitution.
The learned Counsel for the petitioner strenuously argued thatby the CFA the Prevention of Terrorism Act entered into byParliament and presently part of the law of the land be madeineffective by agreeing not to prosecute violators of the said Act andit is a violation of Article 75 and 76 of the Constitution.
This Court could take judicial notice of the fact that theEmergency (Prevention and Prohibition of Terrorism and SpecifiedTerrorist Activities) Regulations No. 7 (sic) of 2006 published in theGazette Extraordinary No. 1474/5 of 6th December 2006 providesfor the prosecution of the violators of the Prevention of TerrorismAct. Regulation 6 of the said regulation prohibits any person, group,
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groups of persons or an organisation engaging in "specifiedterrorist activity". Regulation 20 defines "specified terrorist Activity"i.e. "Specified terrorist activity" means an offence specified in the
Prevention of Terrorism Act, No. 48 of 1979and Regulation 10
provides that "Any person who acts in contravention of Regulation6 of these regulations shall be guilty of an offence, and shall onconviction by the High Court be sentenced to a term ofimprisonment of not less than ten years and not exceeding twentyyears". This shows that the violators of the Prevention of TerrorismAct are prosecuted while the CFA is in full force. Therefore thepetitioner's contention that the CFA is in violation of Article 75 and76 is untenable.
The petitioner also contended that certain provisions of the CFAmentioned above violate Articles 27 and 28 of the Constitution;namely the Directive Principles of State Policy and FundamentalDuties. Article 29 of the Constitution specifically provides that noquestion of inconsistency with the provisions in Chapter VI of theConstitution i.e. Article 27 and Article 28 shall be raised in anyCourt or Tribunal. Therefore the inconsistency of the CFA if any toArticle 27 and Article 28 of the Constitution is not justiciable.
The petitioner's grievance that the CFA violates Article 30 of theConstitution; namely the powers of the President of the Republic,has already been analysed by me in this Order in detail and I haveconcluded that the submission that CFA violate Article 30 of theConstitution has no basis.
The petitioner contended that certain clauses in the CFA is inviolation of Article 12(1), 12(2) and 14 of the Constitution. TheseArticles are in relation to Fundamental Rights. The jurisdiction ofthis court is ousted by Article 126 of the Constitution in decidingquestions affecting fundamental rights. Hence the petitioner cannotchallenge the CFA on the basis that it violates Article 12(1), 12(2)and 14 of the Constitution in judicial review proceedings in theCourt of Appeal under Article 140 of the Constitution.
The petitioner also contended by the provisions of the CFAmentioned above the sovereignty of the People was alienated andit violates Articles 1, 2, 3, 4, and 157A of the Constitution. TheseArticles provides for the 'State' and 'Sovereignty'.
CA
Tliwin Silva v Ranil Wickremasinghe and Others
fSriskandaralah. J.)
'29
In Blackburn v Attorney-General) Lord Denning M.R. quotedwith approval an article by Professor H.W.R. Wade ("The Basis ofLegal Sovereignty") in the Cambridge Law Journal, 1955, at p. 196in which he said that "sovereignty is a political fact for which nopurely legal authority can be constituted….11.
In Administrative Law Ninth Edition at page 9 the learnedauthors H.W.R. Wade & C.F. Forsyth stated:
"The most obvious opportunities for theory lie on the plane ofconstitutional law. Does the law provide a coherent conceptionof the state? Is it, or should it be, based on liberalism,corporatism, pluralism, or other such principles? What are itsimplications as to the nature of law and justice? Morepragmatically, should there be a separation of powers, and if sohow far? Is a sovereign parliament a good institution? Is it rightfor parliament to be dominated by the government? Ought thereto be a second chamber? The leading works on constitutionallaw, however, pay virtually no attention to such question, nor canit be said that their authors' understanding of the law isnoticeably impaired. The gulf between the legal rules andprinciples which they expound, on one hand, and politicalideology on the other hand, is clear and fundamental, and theexistence of that guff is taken for granted."
Judicial review could be based upon the legal rules whichregulate the use of governmental power.The challenges are basedon the elementary concept of illegality, irrationality, proportionalityand procedural impropriety. The petitioner cannot complain to thisCourt in judicial review proceedings that the CFA alienated theSovereignty of the People or violates the concept of State as theconcept of State and Sovereignty are political ideology and nopurely legal authority can be constituted. Therefore the challenge ofthe petitioner that the CFA is in violation of Article 1,2,3,4 and 157Acannot be maintained in this proceeding.
The Court when considering the issue of notice on therespondents has to consider whether the petitioner has at least anarguable case to seek writ of Certiorari or writ of Prohibition inrelation to CFA or parts of CFA. In this regard I have considered themerits of the petitioner's application. Now l proceed to consider a
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more fundamental question that is whether the CFA itself isamenable to judicial review.
The 1st, 26th and 28 to 60th respondents submitted that thevery nature of the said agreement although the word 'agreement1 isused the nature and its forms differs drastically to that of anagreement or contract as understood in a sense as enforceable bya Court. The subject matter itself is that of policy on a political issue,the nature and the context of which is outside the judicial space.The preamble of this agreement sets out the intention of theparties. The short and simple definition that can be given to theCFA is that it is a value decision attached to efforts to resolve aconflict. This demonstrates that there are certain qualitativeconsiderations that would be taken into account in arriving at thisvalue judgment. A prima facie reading of the preamble and thecontents of the CFA clearly points out that the ingredients that mayhave gone into the decision to enter into the CFA are beyond therealm of judicial review. The 3rd to 25th respondents also submittedthat the present application involves a political question which is notamenable to judicial review and they relied on the following casesin support of their contention; Premachandra v Major MontagueJayawickremap) Baker v Cart®) and But Nath v State of WestBengali
From the preamble of the CFA it is clear that this document is apolicy document on a political issue. It is axiomatic that the contentsof a policy document cannot be read and interpreted as statutoryprovisions. Too much of legalism cannot be imported inunderstanding the scope and meaning of the clauses contained inpolicy formulations.
The Supreme Court of India in BALCO Employees Union (Regd.)vUnion of India and others0) quoted with approval the followingobservations made in the majority decision in Narmada BachaoAndolan v Union of India and othersP)
"While protecting the rights of the people from being violated in anymanner utmost care has to be taken that the court does not (SIC)its jurisdiction. There is, in our constitutional framework a fairly cleardemarcation of powers. The Court has come down heavilywhenever the executive has sought to impinge upon the Court'sjurisdiction.
CA
Ttiwin Silva v Rani! Wickremasinghe and Others
fSriskandaraiah. J.)
31
At the same time, in exercise of its enormous power the Courtshould not be called upon to or undertake governmental duties orfunctions. The Courts cannot run the Government nor can theadministration indulge in abuse or non-use of power and get awaywith it. The essence of judicial review is a constitutionalfundamental. The role of the higher judiciaiy under the Constitutioncasts on it a great obligation as the sentinel to defend the values ofthe Constitution and the rights of Indians. The Courts must,therefore, act within their judicially permissible limitations to upholdthe rule of law and harness their power in public interest. It isprecisely for this reason that it has been consistently held by thisCourt that in matters of policy the Court will not interfere. Whenthere is a valid law requiring the Government to act in a particularmanner the Court ought not to, without striking down the law, giveany direction which is not in accordance with law. In other words,the court itself is not above the law.
In respect of public projects and policies which are initiated by theGovernment the Courts should not become an approval authority.Normally such decisions are taken by the Government after duecare and consideration. In a democracy welfare of the people atlarge, and not merely of a small section of the society, has to be theconcern of a responsible Government. If a considered policydecision has been taken, which is not in conflict with any law or isnot mafa fide, it will not be in public interest to require the Court togo into and investigate those areas which are the function of theexecutive. For any project which is approved after due deliberationthe Court should refrain from being asked to review the decision justbecause a petitioner in filing a PIL alleges that such a decisionshould not have been taken because an opposite view against theundertaking of the project, which view may have been consideredby the Government, is possible. When two or more options orviews are possible and after considering them the Governmenttakes a policy decision it is then not the function of the Court to gointo the matter afresh and, in a way, sit in appeal over such policydecision".
and held: "In a democracy it is the prerogative of each electedGovernment to follow its own policy. Often a change inGovernment may result in the shift in focus or change in economic
32
Sri Lanka Law Reports
[20071 2SriL.R
policies. Any such change may result in adversely affecting somevested interests. Unless any illegality is committed in the executionof the policy or the same is contrary to law or mala fide, a decisionbringing about change cannot per se be interfered with by the
Court.'1
The government is free to formulate its own policy and it is in publicinterest the Courts will not go into and investigate these policydecisions unless it is illegal, contrary to law or mata fide. But on theother hand the Court will not consider the illegality or mala fide of apolicy decision unless the said decision provides legal consequencesor legal impact. The Court has nothing to do with mere decision ofpolicy. For a policy decision to have legal consequences or legalimpact that policy decision should have been taken either by invokinga statutory provision or statutory power should have been conferred onthe said decision. It is pertinent to note that neither statutory provisionhad been invoked nor statutory power had been conferred on the CFA.
H.W.R. Wade & C.F. Forsty in Administrative Law Ninth Edition atpage 345 the authors stated:
"A necessary corollary is that, as usual throughout administrativelaw, we are concerned with acts of legal power, i.e. acts which,if valid; themselves produce legal consequences {emphasisadded). Courts of law have nothing directly to do with meredecisions of policy, such as decisions by the government thatBritain shall join the European Communities (even though a treatyis concluded) or that grammar schools shall be replaced bycomprehensive schools. Such decisions have no legal impactuntil statutory powers are conferred or invoked. But as soonas Parliament confers some legal power it becomes thebusiness of the courts to see that the power is not exceededor abused" (emphasis added).
In Blackburn v AG (supra) Mr. Blackburn challenged an agreementin judicial review proceedings for a declaration that the said agreementis ultra viras and null and void on the basis that the said agreemententered into by the Government affects the sovereignty of the BritishNation. Lord Denning delivering the Judgment held: “that the saidapplication is premature as the said agreement has no legalconsequence and the Court consider the legality of the agreement onlyafter the Parliament confers legal power on the said agreement"
sc
Kanyawasam v southern Provincial
Road Development Authority and 8 Others
33
CFA is a mere decision of policy to build confidence betweenparties to find a negotiated solution to the ongoing ethnic conflict in SriLanka; as there is no statutory power conferred on the CFA or invokedon the formulation of the CFA it has no legal consequences or legalimpact. Therefore it cannot be tested in Court for its legality and hencethe CFA is not amenable to judicial review. Even a party to thisagreement or a person who has sufficient interest in this agreementcannot seek a Public law remedy for the enforcement of the provisionsof the CFA or to quash or prohibit a decision taken to violate any of theprovisions of the CFA. Similarly the petitioner also cannot make anapplication for a writ of Certiorari or Prohibition to quash, or prohibit theoperation of the said Cease Fire Agreement
In the first part of my Order I have analysed the merits of thisapplication and I have held that this application has no legal basis. Inthe second part of my Order I have analysed whether the CFA isjusticiable and I have held that the CFA is not justiciable. As there is nolegal basis for this application and as it is misconceived in law thisCourt refuses to issue notice on the respondents.
Notice refused.