VICTOR IVAN AND OTHERS v. HON. SARATH N. SILVA AND OTHERS

025-SLLR-SLLR-2001-V-1-VICTOR-IVAN-AND-OTHERS-v.-HON.-SARATH-N.-SILVA-AND-OTHERS.pdf


VICTOR IVAN AND OTHERS
v.
HON. SARATH N. SILVA AND OTHERS
SUPREME COURTWADUGODAPITIYA, J.
P.R.P. PERERA, J.
BANDARANAYAKE, J.
GUNASEKERA, J. ANDISMAIL. J.
SC APPLICATION NO. 898/99 (FR)
SC APPLICATION NO. 1000/99 (FR)
SC APPLICATION NO. 901/99 (FR)
SC APPLICATION NO. 902/99 (FR)
SC APPLICATION NO. 1052/99 (FR)
28th, 29™ AND 30™ MAY 2001
Fundamental rights -Appointment of Chief Justice – Presidential immunity- Article 35 of the Constitution – Constitutional remedy for removing theChief Justice – Article 107(2) of the Constitution – Jurisdiction of theSupreme Court – “Executive or administrative action" – Articles 17 and 126of the Constitution.
The petitioners alleged that by reason of the appointment of theIs' respondent (the former Attorney-General) as the Chief Justice, by thePresident pending inquiry into a disciplinary inquiry against thelsl respondent qua attomey-at-law under section 42 of the JudicatureAct their fundamental rights under Articles 12(1) and 17 were infringed.The 2nd petitioner further alleged that by reason of such appointment hisrights under Articles 14(l)(a) and 14(1 )(g) were also infringed. Theyprayed for a declaration accordingly and for a further declaration that thesaid appointment is null and void. The facts show that the saiddisciplinary proceedings were contemplated on the ground of allegedmisconduct, to wit, interference with the proceedings in District CourtColombo Case No. 17082/Divorce and acts or omissions in respect ofproceedings against Lenin Ratnayake, Magistrate, Baddegama.
It was urged on behalf of the 1st petitioner that the 1st respondent was the“beneficiary" of the impugned appointment. Hence the appointmentcould be questioned through the lsl respondent, who was “invoking" thePresident's act and the burden was on the 1st respondent to establish thelawfulness of the President’s act notwithstanding the immunity underArticle 35 which was personal to the President.
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Held :
The conduct of the 1“ respondent In holding office as Chief Justicein consequence of his appointment by the President under Article170 of the Constitution does not constitute “executive or administrativeaction" within the ambit of Articles 17 and 126 of the Constitution.The 1“ respondent cannot be equated to a party or a person who hasinvoked the act of the President and who has the burden ofestablishing that the President's acts are warranted by law. inaccordance with the principles set out in the previous decisions of theCourt.
Consequently, the petitioners have challenged an act of the Presidentin respect of which they are precluded from instituting proceedingsagainst the President in view of Article 35 of the Constitution whichconfers immunity on the President against proceedings in respect ofsuch act.
The claims of the petitioners are not in respect of any acts on the partof the President which may be pursued against the Attorney-Generalunder the exception provided in Article 35(3) of the Constitution.
Article 107(2) provides for the procedure of removing a Judge on theground of “proved misbehaviour or incapacity" this is the only wayin which a Judge who is in office could be removed.
Per Wadugodapitiya, J.
“It seems to me that upon a proper construction of paragraphs (2) and(3) of Article 107 and upon the authority of various dicta cited above,that it is quite clear that paragraphs (2) and (3) of Article 107 of theConstitution provide the only way in which the Chief Justice(lsl respondent) could be removed from office”
In the circumstances, the court has no jursdiction in proceedingsunder Article 126 of the Constitution to grant the declaration prayedfor by the petitioners.
Cases referred to :
Silva v. Bandaranayake (1997) 1 SRI LR 92, 95. 99
Mallikarachchi v. Shiva Pasupati. Attorney General (1985)1 SRI LR 74
Karunatilake v. Dayananda Dissanayake, Commissioner of Electionset al (1) (1999) 1 SRI LR 157
sc
Victor Ivan and Others v. Hon. Sarath N. Silva and Others
(Wadugodapitiya. J.)
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Joseph Perera v. Attorney-General etal (1992) 1 SRI LR 199
Visuvalingam v. Uyanage (1983) 1 SRI LR 203
I.M. Raj Bandida v. Lanka General Trading Co. Ltd. et al (SC Special)302/98 SCM 16. 10. 2000
SADMP Gunasekera et al v. Inspector General of Police et al(SC Application) 607/99 (FR) and 608/99 (FR) SCM 12. 01. 2000
Somawathie v. Weerasinghe (1990) 2 SRI LR 121
Jones v. Wrotham Parks Estates Ltd. (1980) AC 74
APPLICATION for relief for infringement of fundamental rights(Preliminary objections)
Ran]it Abeysuriya, P.C. with SuranjilhHewamanne, G. Alagaratnamand
J.C. Weliamuna for the petitioner in SC Applications No. 898/99 FR andNo. 1000/99 FR.
Rajpal Abeynayake the petitioner in person in SC Application No. 901 /99/FR
Elmore Pererawith Mrs. P. Wanigaratne for the petitioner in SC ApplicationNo. 902/99 FR and No. 1052/99 FR
K.C. Kamcdasabayson, P.C., Attorney-General with S. Marsoof P.C..Additional-Solicitor General, U. Egalahewa, State Counsel and N. Pulle,State Counsel for the ls‘ and 2nd respondents in each application.
Cur. adv. vult.
June 20, 2001.
WADUGODAPITIYA. J.All of the above-mentioned applications were listed forthe granting of leave to proceed on 28. 5. 2001, 29. 5. 2001and 30. 5. 2001, and were taken up together.
At the outset, Mr. Ranjit Abeysuriya, P.C., indicated toCourt that he wished to withdraw S.C. Application No.1000/99(F/R) as the subject-matter in that application had
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already been decided by the Order of this Court in S.C.Application No. 898/99(F/R), dated 28. 02. 2001. This wasallowed, and the application was dismissed pro forma. Asregards S.C. Application 1052/99(F/R), I find that the subject-matter in that application has also been decided already inthe Order of this Court in S.C. Application 902/99(F/R) of28.2.2001. Also, learned Counsel did not make anysubmissions in that case. In the circumstances, S.C.Application 1052/99(F/R) is dismissed.
The Attorney-General brought to the notice of Court thatS.C. Application 902/99(F/R) had undergone an extensiveamendment without permission of Court first had andobtained. However, having considered the matter, we decidedto accept the amendment in the interests of justice andfairness, and also, so as not to place the Petitioner, Mr. W.B.A.Jayasekera at a disadvantage. It appears that the originalpetition dated 15. 10. 99 had been prepared by Mr. Jayasekerain person within the time limit allowed therefor, and at a timehe had not been able to obtain the services of Counsel.However, learned Counsel whom the Petitioner was able toretain subsequently, had decided to amend the petition,although as he said, he did so under a genuine belief, (albeiterroneous), that he had obtained permission of Court so todo. In any event, it was observed, and the Attorney-Generalconceded, that the “cause of action” of the amended petitionwas not substantially different to the Petitioner’s originalgrievance. For the above reasons, we overruled the objectionraised by the Attorney-General, and accepted the amendedpetition.
The Petitioners in all three applications cited the Is'Respondent, who is the Chief Justice, as the main Respondent,and alleged that their fundamental rights under Articles 12(1)and 17 of the Constitution have been infringed by reason ofthe appointment of the 1st Respondent as Chief Justice. Inaddition, the Petitioner in S.C. Application 901/99(F/R). beingan Attomey-at-Law, claimed that his fundamental rights under
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Articles 14(l)(a) and' 14(l)(g) of the Constitution were alsoviolated for the self-same reason. However, it is worthy of notethat none of the Petitioners alleged that the lBt Respondentwas guilty of any executive or administrative act which violatedor was about to violate any of their fundamental rights.
A further declaration was sought in all three applications,that the said appointment was unconstitutional, invalid andnull and void.
All three Petitioners mounted a direct challenge to thevalidity of the appointment of the 1st Respondent as ChiefJustice in all three cases, but in view of the provisions ofArticle 35 of the Constitution, none of them sought to nameas Respondent, the person who in fact made suchappointment, viz, the President; nor, in view of the self-sameArticle, did any of them seek to institute proceedings againstthe Attorney-General for the purpose of representing anddefending the President. And so, in all three cases, theAttorney-General appeared only for the 1st Respondent andon his own behalf.
When these applications (viz; S.C. Applications 898/99,901/99 and 902/99F/R) were taken up for support, theAttorney-General raised three preliminary objections of lawto the granting of leave to proceed in respect of all threeapplications, which objections, he said, were common to andapplied to all three applications. As such, they were taken upfor consideration together, and I propose making my order inrespect of all of them in this order.
The preliminary objections raised by the Attorney-Generalare as follows:
that the appointment of the Chief Justice cannot bequestioned in these proceedings;
that there are glaring deficiencies in the pleadingsthat would disentitle the Petitioners from presenting
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their cases before this Court. (The Attorney-Generalsaid that he would be basing himself on and relyingentirely on the material and documents produced bythe Petitioners, which are now before Court); and,
that, in any event, there has been no violation of thefundamental rights of any of the petitioners.
I propose taking up for consideration, each preliminaryobjection separately. The first objection of the Attorney-Generalis as follows:
The appointment of the Chief Justice cannot bequestioned in these proceedingsThis objection must be viewed in the light of the reliefsought by the Petitioners in the three cases, viz., adeclaration that their fundamental rights under Articles12(1), 17, 14(l)(a) and 14(l)(g) of the Constitution havebeen infringed by reason of the appointment of the 1“Respondent as Chief Justice, and a further declarationthat the said appointment was unconstitutional, invalidand null and void. There was no allegation, however, byany of the Petitioners, that the 1st Respondent himselfwas guilty of any executive or administrative act whichviolated or was about to violate any of their fundamentalrights.
It is clear then, that the central issue is the appointmentof the 1st Respondent as Chief Justice. This issue must I feel,be considered in its three aspects, viz.,
the appointment of the 1st Respondent as ChiefJustice by the President under Article 107(1) of theConstitution,
the immunity of the President under Article 35(1) ofthe Constitution, and
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(ill) the irremovability of the 1st Respondent from thepost of Chief Justice except by impeachment underArticles 107(2) and 107(3) of the Constitution.
I shall now deal with these aspects one by one:
The appointment of the 1st Respondent as Chief Justiceby the President under Article 107(1) of theConstitution:
Article 107 of the Constitution occurs in Chapter XV thereofentitled, “The Judiciary”, under the sub-heading,“Independence of the Judiciary”. The marginal heading toArticle 107 says, “Appointment and removal of Judges ofthe Supreme Court and Court of Appeal.”
Article 107(1) states as follows:
“The Chief Justice, the President of the Court of Appealand every other Judge of the Supreme Court and Court ofAppeal shall be appointed by the President of the Republicby warrant under his hand."
As the Attorney-General pointed out, it is the Constitutionthat has created both the Supreme Court and the Court ofAppeal, and being conscious of its own creation, theConstitution itself has also laid down in clear terms, themanner in which the Judges of such Courts could be appointedand removed.
The manner of appointment of the 1st Respondent as ChiefJustice is thus laid down in clear and unambiguous terms inArticle 107(1), a plain reading of which does not call for theobservance of any guidelines, or the need for any type ofco-operation between the President and anyone else. As mybrother Fernando J, said in Silva v. Bandaranayakell> (whichcase dealt with the appointment of a Judge of the SupremeCourt, and not with the appointment of a Chief Justice),
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“Admittedly Article 107 confers on the President the power ofmaking appointments to the Supreme Court, and does notexpressly specify any qualifications or restrictions," and added,that the President in exercising the power conferred by Article107 had a “sole discretion” in making such appointments.This notwithstanding, he said, “However, considerations ofcomity require that, in the exercise of that power, there shouldbe co-operation between the Executive and the Judiciary, inorder to fulfil the object of Article 107,” for, “The Chief Justice,as the head of the Judiciary, would undoubtedly be mostknowledgeable about some aspects, while the President wouldbe best informed about other aspects. Thus co-operationbetween them would, unquestionably, ensure the best result.”He added, “Of course, the manner, the nature, and the extentof the co-operation needed are left to the President and theChief Justice, and this may vary depending on thecircumstances, including the post in question.”
This was the only qualification which Fernando J, feltmay be desirable to qualify the power of the President whenappointing a Judge of the Supreme Court, and it must benoted that the question of the desirability for co-operationbetween the President and the Chief Justice arose in thatcontext.
I must point out here however, that Mr. Abeysuriya wasmistaken when he strenuously urged that the Bandaranayakecase held, and was authority for the proposition that, “thePresident, though he had the power to appoint, must firstconsult the Chief Justice.” He appears to have made thisthe foundation for his argument that the President's power ofappointment was a qualified one, and that it could bequestioned in these proceedings. It however, had to be pointedout to Mr. Abeysuriya that the word “must" was never usedby Justice Fernando anywhere in his judgment, and that, onthe contrary, what was suggested in that judgment was thatsuch co-operation was only desirable.
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As was suggested, such co-operation would generally bein the form of a recommendation by the Chief Justice to thePresident. Inasmuch as the question was not in issue, nopronouncement was made, nor any suggestion preferred, asto what form such co-operation might assume in a case wherethe appointment was that of the Chief Justice himself.
It is worthy of note that unlike in the case of the Indianand Pakistani Constitutions, our Article 107(1) does notcontain any guidelines qualifying or restricting orcircumscribing the acts of appointment thereunder, and inthis context, it is of no small significance to discover that,taking our Constitution as a whole, out of the numerousinstances where the President is given the power ofappointment, the majority of such instances are devoid of anyguidelines or restrictions of any sort. Thus, whereas Articles41(1), 44(1), 45(1), 46(1) and 113(1) contain specific provisions,expressly provided, requiring the President to make theappointment in consultation with or upon the recommendationof the stated bodies or persons, Articles 44(3), 45(2), 51, 52(1),54, 56(1), 65(1), 103(1), 107(1), 109(1), 109(2), 111(2), 112(1),153(1), 154B(2) and 156(2) do not impose any suchqualification or restriction upon the power of appointment ofthe President. Thus one finds that, in the same enactment,(the Constitution), whereas just five Articles expressly imposesome sort of restraint, as many as sixteen Articles (includingArticle ,107(1) under discussion) specifically refrain fromimposing any guidelines or from imposing any restraint orrestriction (by way of co-operation or consultation or otherwise)on the power of appointment of the President. This surelymust receive its natural, logical and only interpretation, viz.,that plain words and plain language must be given their plainmeaning and that these provisions of the Constitution mustbe construed accordingly. The fact that some appointmentsrequire consultation and co-operation and others do not, mustsurely indicate just such an intention, which intention mustnecessarily be attributed to the makers of the Constitution.
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We certainly cannot read into Article 107(1) guidelines whichthe Petitioners think ought to be there, but are not.
It is in this context, that the opinion expressed byFernando J. in Silva v. Bandaranayake(supra) must be viewed,for if one may extract the true import of that case, it clearly isthat, in the particular context of an appointment to the officeof Judge of the Supreme Court, it was desirable as FernandoJ. said, that there be co-operation between the President andthe Chief Justice before such appointment is made, since“considerations of comity” require such co-operation “in orderto fulfil the object of Article 107.”
What is of vital importance here is to note that JusticeFernando does not in any way seek to say or even suggestthat such co-operation and consultation was either a legal ora constitutional requirement; neither does he say that suchco-operation was in any way mandatory.
In this connection, the question that naturally arises inthe cases before us is, what is the nature of the co-operationand/or consultation, if any, which is desirable when theappointment is that of the Chief Justice himself? No answerwas suggested by anyone during the hearing into the instantapplications.
It is thus seen that in appointing the 1st Respondent tothe post of Chief Justice, the President has acted wholly intravires and within the bounds of the power vested in her byArticle 107(1) of the Constitution, and that such appointmentis therefore both lawful and constitutionally valid.
For the above reasons, I would agree with the Attorney-General that the appointment of the 1st Respondent as ChiefJustice by the President is both lawful and valid, and can inno way be held to be unconstitutional. At the same time, suchappointment is in no way violative, either directly or indirectly,of any of the provisions of the Constitution.
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(Wadugodopitiya. J.)
Moving on to the next point in sequence, I would dealwith the second aspect mentioned above, viz.,
The Immunity of the President under Article 35(1) ofthe Constitution:Article 35 occurs in Chapter VII of the Constitution, entitled,
“The Executive,” and under the sub-heading, “ThePresident of the Republic.” The margined heading to Article35 says, “Immunity of President from suit.”
Article 35(1):“While any person holds office as President, no proceedingsshall be instituted or continued against him in any Courtor tribunal in respect of anything done or omitted to bedone by him either in his official or private capacity.”
(This Article is similar to Article 23(1) of the now repealed1972 Constitution).
Article 35(2):“Where provision is made by law limiting the time withinwhich proceedings of any description may be broughtagainst any person, the period of time during which suchperson holds the office of President shall not be takeninto account in calculating any period of time prescribedby that law.”
Article 35(3):“The immunity conferred by the provisions of paragraph(1) of this Article shall not apply to any proceedings inany Court in relation to the exercise of any powerpertaining to any subject or function assigned to thePresident or remaining in his charge under paragraph (2)of Article 44 or to proceedings in the Supreme Court under
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paragraph (2) of Article 129 or to proceedings in theSupreme Court under Article 130(a) (relating to the electionof the President or the validity of a referendum or toproceedings in the Court of Appeal under Article 144 orin the Supreme Court, relating to the election of a Memberof Parliament], Provided that any such proceedings inrelation to the exercise of any power pertaining to anysuch subject or function shall be instituted against theAttorney-General.”
The Attorney-General’s contention is that by virtue ofArticle 35 of the Constitution, the President enjoys absoluteimmunity from suit in any Court of Law, in respect of her actin appointing the 1st Respondent as Chief Justice under Article107(1), which act she performed while she was holding theoffice of President. This immunity is clearly andunambiguously spelled out in Article 35(1), and both Articles35(2) and 35(3) confirm the fact of absolute immunity grantedunder Article 35(1).
He added that the appointment itself by the President ofthe 1st Respondent as Chief Justice under Article 107(1) asdiscussed above, attracted to it the immunity provisions ofArticle 35(1) and therefore the appointment cannot be quashedin these proceedings.
In considering this aspect of the matter, I find the followingcases revealing.
Of these, one of the most significant is the case ofMallikarachchi v. Shiva Pasupathy. Attorney-General12' in whichSharvananda, C. J. went to great lengths to set out and explainthe concept of Presidential immunity. I therefore think it usefulto quote from his judgment in extenso.
In Mallikarachchi’s case, the President’s orders proscribingthe Janatha Vimukthi Peramuna (JVP) under the provisionsof the Emergency Regulations under the Public SecurityOrdinance were challenged.
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Sharvananda C.J., having cited Articles 35(1), 35(2) and35(3) of the Constitution, said at page 77,
“Article 35(1) confers on the President during his tenureof office, an absolute immunity in legal proceedings inregard to his official acts or omissions, and also in respectof his acts or omissions in his private capacity. The objectof the Article is to protect from harassment the personholding the high office of the Executive Head of the Statein regard to his acts or omissions either in his official orprivate capacity during his tenure of the office of President.
Such a provision as Article 35(1) is not something uniqueto the Constitution of the Democratic Socialist Republicof Sri Lanka of 1978. There was a similar provision inArticle 23(1) of the Constitution of Sri Lanka of 1972. Thecorresponding provision in the Indian Constitution isArticle 361. The principle upon which the President isendowed with this immunity is not based upon any ideathat, as in the case of the King of Great Britain, he can dono wrong. The rationale of this principle is that personsoccupying such a high office should not be amenable tothe jurisdiction of any but the representatives of the people,by whom he might be impeached and be removed fromoffice, and that once he has ceased to hold office, he maybe held to account in proceedings in the ordinary courtsof law.
It is very necessary that when the Executive Head of theState is vested with paramount power and duties, heshould be given immunity in the discharge of his functions.
Article 38 of our Constitution has made provision for theremoval of the President. . . It will thus be seen that thePresident is not above the law. He is a person elected bythe People and holds office for a term of six years. Theprocess of election ensures in the holder of the office,correct conduct and full sense of responsibility for
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discharging properly the functions entrusted to him. It istherefore essential that special immunity must beconferred on the person holding such high executive officefrom being subject to legal process or legal action andfrom being harassed by frivolous actions. If such immunityis not conferred, not only the prestige, dignity and statusof the high office will be adversely affected, but the smoothand efficient working of the Government of which he isthe head will be impeded. That is the rationale for theimmunity cover afforded for the President's actions, bothofficial and private.
The immunity afforded by Article 35(1) is personal to thePresident. . . Thus though the President is personallyimmune from legal proceedings in a court in respect ofanything done or omitted to be done by him in his officialor private capacity, his acts or omissions in relation tothe category of matters referred to in Article 35(3) can bequestioned in a court in proceedings instituted againstthe Attorney-General.”
Wanasundera J, in the same case, agreed withSharvananda C.J., that the President enjoyed immunity frombeing sued.
I might only add that the President, even though she holdshigh office, is, nevertheless by virtue of Article 42 of theConstitution, responsible to Parliament for the due exercise,performance and discharge of her constitutional powers,duties and functions.
In Silva v. Bandaranayake11* at 99, my brother P.R.P. PereraJ. (in a minority judgment of three Judges, which consideredanother aspect of that case, and which was not in conflictwith the majority judgment of four Judges delivered by mybrother Fernando J.) having cited Mallikarachchi’s case(supra)stated,
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“We are of the view therefore that having regard to Article35 of the Constitution, an act or omission of the Presidentis not justiciable in a Court of Law, more so where thesaid act or omission is being questioned in proceedingswhere the President is not a party and in law could nothave been made a party. . . It is only the President whocould furnish details relating to the said appointment. . .Such a matter cannot be canvassed in any Court.Accordingly, we are of the view that this application cannotbe entertained by this Court and must be dismissed irilimine.''
In Kanmathilake u. Dayananda Dissanayake, Commissionerof Elections et al,3) the facts, which are of some importance,were as follows. After the period of office of five ProvincialCouncils came to an end in June 1998, the Commissioner ofElections (1st Respondent) took the necessary steps to fix 28.
98 as the date of the poll. The issue of postal ballot paperswas fixed for 4. 8. 98, but by telegram dated 3. 8. 98 thereturning officers suspended the postal voting. No reason wasgiven. The very next day, on 4. 8. 98, the President issued aProclamation under Section 2 of the Public Security Ordinanceand promulgated an Emergency Regulation which had theeffect of cancelling the date of the poll, (viz., 28. 8. 98).Thereafter the 1st Respondent (Commissioner of Elections) tookno steps to fix a fresh date for the poll and as a result, therewas a failure to hold elections for the said Provincial Councils.The Petitioners alleged violation of Articles 12(1) and 14(l)(a)of the Constitution, by reason of the indefinite postponementof the said elections.
Fernando J. (with G.P.S. de Silva, C.J. and GunasekeraJ. agreeing) said referring to Article 35 of the Constitution,
“What is prohibited is the institution (or continuation) ofproceedings against the President. Article 35 does notpurport to prohibit the institution of proceedings againstany other person, where that is permissible under any
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other law. . . I hold that Article 35 only prohibits theinstitution (or continuation) of legal proceedings againstthe President while in office; it imposes no bar whatsoeveron proceedings (a) against him when he is no longer inoffice, and (b) other persons at any time. . . Immunity is ashield for the doer, not for the act. . . It (Article 35) doesnot exclude judicial review of the lawfulness or proprietyof an impugned act or omission, in appropriateproceedings against some other person who does notenjoy immunity from suit; as, for instance, a defendantor respondent who relies on an act done by thePresident, in order to justify his own conduct … It isthe Respondents who rely on the Proclamation andRegulation, and the review thereof by this Court is notin any way inconsistent with the prohibition in Article35 on the institution of proceedings against the President.”(Emphasis mine).
Fernando J., while declining to rule on the validity orotherwise of the Proclamation issued by the President, didrule however, that the emergency regulation made thereunderwas invalid. He held that, inasmuch as emergency regulationsare delegated legislation which must be in the form of a ruleand inasmuch as the impugned regulation had the characterof an order, it was not an emergency regulation at all. Therewas no legal provision authorizing the making of an order.
This case confirms the proposition that the President’sacts cannot be challenged in a Court of law in proceedingsagainst the President. However, where some other officialperforms an executive or administrative act violative of anyperson’s fundamental rights, and in order to justify his ownconduct, relies on an act done by the President, then, suchact of such officer, together with its parent act are reviewablein appropriate judicial proceedings.
In Joseph Perera v. Attorney-General et al!4> SharvanandaC.J. said as much with regard to Emergency Regulation
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No. 28 promulgated by the President, which conferred anunguided, “naked and arbitrary power on the Police” to grantor refuse permission to distribute pamphlets or posters as itpleased. This Regulation was used arbitrarily by the police tothe detriment of the Petitioner, and such acts of the policewere violative of the Petitioner's fundamental right to equality.Court found that Regulation 28 was “constitutionallyoverbroad” and violative of Article 12 of the Constitution. Assuch, court held that, “that Regulation is invalid and cannotform the basis of an offence in law”; the “offence” being theact of the police who relied on it to justify their own arbitraryacts.
Thus it seems to be quite clear, that the two cases citedimmediately above are agreed that, although the President’simmunity remains inviolable, her acts under certaincircumstances, may not.
Justice Fernando takes the matter beyond doubt whenhe clearly states that for such a challenge to succeed, theremust be some other officer who has himself performed someexecutive or administrative act which is violative of someone’sfundamental rights, and that, in order to justify his ownconduct in the doing of such impugned act, the officer inquestion falls back and relies on the act of the President. It isonly in such circumstances that the parent act of the Presidentmay be subjected to judicial review.
A comment I wish to make in this connection, is thatthese rulings regarding the subjection to judicial review ofthe acts of the President, in circumstances where the Presidentcannot only, not be made a party, but cannot also be defendedby the Attorney-General, raises a serious question regardingthe applicability or otherwise of the principle, audi alterampartem, which principle of natural justice even a President issurely entitled to. After all, she is the only person who reallyknows why she appointed the 1st Respondent as Chief Justice.
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Mr. Abeysuriya, P.C. strenuously argued, citingKarunathilaka's case, that what that case really meant wasthat any ‘‘beneficiary” of the President's act can be calledupon to answer. He submitted that in the instant case, the lslRespondent (Chief Justice) was the “beneficiary” of thePresident’s act appointing him Chief Justice, for the reasonthat the 1st Respondent claimed the benefit of and was relyingon the said act of appointment to stay in office. He submittedthat therefore, inasmuch as the ls‘ Respondent being the“beneficiary” of the act of the President did not enjoy immunity,the President’s act appointing the 1st Respondent as ChiefJustice was reviewable and could be questioned in theseproceedings through the person of the 1st Respondent. Thiswas, of course, despite the fact that there was no allegationby any of the Petitioners that the 1st Respondent had performedany executive or administrative act violative of theirfundamental rights. Needless to say, this interpretation isclearly not in accord with the decision in Karunathilaka’s case,and I cannot agree with his view.
Mr. Abeysuriya also submitted, basing himself on whatSharvananda J. said in Visuvalingam v. Liyanagef51, that itwas the 1st Respondent who was “invoking” the act ofappointment of the President to stay in office, and as such,he (the 1st Respondent) will have to bear the burden ofdemonstrating that such act of the President is warranted inlaw.
I am unable to agree with Mr. Abeysuriya here either. The1st Respondent has not “invoked” the President’s act ofappointment to rely on or justify anything. Unlike in the casescited above, no allegation is made against the 1st Respondentthat he has performed any executive or administrative actviolative of anyone’s fundamental rights. The only actchallenged, is the President’s own act in appointing the1st Respondent as Chief Justice. Therefore, Mr. Abeysuriya’sargument fails, inasmuch as his interpretation is not in accordwith the decision he has cited.
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Thus it is seen, that the three cases which Mr. Abeysuriyarelied on to show that the act of the President in appointingthe 1st Respondent to the post of Chief Justice can bequestioned in Court, (viz. KarunathUake's case, Joseph Perera’scase and Visuvalingam’s case) have no application, (on thepoint in question), to the facts of the three applications beforeus.
I am constrained to say that, in fact, what the Petitionersare asking this court to do, is in effect to amend, by judicialaction, Article 35 of the Constitution, by ruling that theimmunity enjoyed by the President is not immunity at all.This, of course, it is not within the power of this Court to do.In the guise of judicial decisions and rulings, Judges cannotand will not seek to usurp the functions of the Legislature,especially where the Constitution itself is concerned.
I therefore agree with the contention of the Attorney-General, and am myself of the view that upon a considerationof the three applications before us, the President does in factenjoy immunity under Article 35(1), in respect of her act ofappointing the 1st Respondent as Chief Justice.
In any event, it seems that Article 35 will be renderedmeaningless and indeed nugatory, if any individual were tobe deemed to be able to question the act of appointment ashas been prayed for by the Petitioners.
For the reasons given above, I am unable to agree withthe submissions of any of the learned Counsel who appearedfor the Petitioners, who were all of the view that the act of thePresident as aforesaid was reviewable in these proceedings,under Article 126 of the Constitution.
I would next like to consider the 3rd aspect mentionedabove, viz.,
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The irremovability of the 1" Respondent from the postof Chief Justice, except by impeachment under Articles107(2) and 107(3) of the Constitution:
Article 107 of the Constitution occurs in Chapter XV thereof,entitled, “The Judiciary”, under the sub-heading,“Independence of the Judiciary”. The marginal heading toArticle 107 says, “Appointment and removal of Judges ofthe Supreme Court and Court of Appeal.”
Article 107(2) states as follows:
“Eveiy such Judge shall hold office during good behaviour,and shall not be removed except by an order of thePresident made after an address of Parliament supportedby a majority of the total number of Members of Parliament(including those not present) has been presented to thePresident for such removal on the ground of provedmisbehaviour or incapacity:
Provided that no resolution for the presentation of suchan address shall be entertained by the Speaker or placedon the Order Paper of Parliament, unless notice of suchresolution is signed by not less than one-third of the totalnumber of Members of Parliament and sets out fullparticulars of the alleged misbehaviour or incapacity.”
Article 107(3) states as follows:
“Parliament shall by law or by Standing Orders providefor all matters relating to the presentation of suchan address, including the procedure for the passing ofsuch resolution, the investigation and proof of thealleged misbehaviour or incapacity and the right of suchJudge to appear and to be heard in person or byrepresentative.” (Emphasis mine)
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Victor Ivan and Others v. Hon. Sarath N. Silva and Others
(Wadugodapltiya. J.)
329
The important case on the question of removed of Judgesof the Supreme Court and Court of Appeal is that ofVisuvalingam v. Liyonage(supra) in which the consequencesof the failure of the Judges of the Superior Courts to take theoath of office before the President came up for consideration.This requirement was contained in the Sixth Amendment tothe Constitution; the printed copy of which reached the Judgeslate. They were thus unable to take the oath before thePresident within the time prescribed therein, but had alreadytaken the oath within time, before each other; all of thembeing ex officio Justices of the Peace. It transpired that theBill which had been examined for its constitutionality on
8. 83 by a Full Bench of the Supreme Court did not containthis requirement, which had been introduced by Parliamentduring the later Committee Stage, and was thus unknown tothe Judges. Thus the failure to take the oath before thePresident was not deliberate, but due to the circumstance setout above. The Sixth Amendment stipulated that the oathhad to be taken before the President within a calendar monthof its coming into force, but since the Judges were unable todo so, they sought an appointment with the President for thatpurpose. This however did not take place as the Attorney -General had advised the President that the Judges werealready late by two days, and had therefore ceased to holdoffice! The President thereupon re-appointed the Judges byfresh letters of appointment dated 15. 9. 83, as they wereconsidered to have ceased to hold office by operation of law.
The main question which arose for decision was whetherthe failure of the Judges to take their oath of office before thePresident resulted in their ceasing to hold office as Judges onthe expiry of the stipulated date. Seven Judges out of a FullBench of nine held that they did not.
Dealing with this question, Sharvananda J. (as he thenwas) said (at page 236):
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“So solicitous were the framers of the Constitution to
make the position of the Judges independent andentrenched, that they invested them with the status ofirremovability save on the limited grounds and mannerspecifically set out in its provisions. The Judges of theSupreme Court and Court of Appeal, unlike public officersof whatever rank, do not hold office at pleasure. . . Thevital need of security of tenure can scarcely be over-emphasised. It is signicant that Article 107 appears underthe caption, ‘Independence of the Judiciary’ … He (aJudge) is not removable by the Executive; the onlyway he can be removed is by an order of the Presidentin terms of Article 107(2). . . The framers of theConstitution had considered it to be in the interest of thepublic and not merely of the individual Judges that theirsecurity of tenure should be sacrosanct and sanctionedby the Constitution. . . A Judge of the Supreme Courtor Court of Appeal can cease to hold office only interms of the provisions of the Constitution, and notby operation of any rule of estoppel. . . In view of theconclusion that the Judges had not vacated their officeby reason of their omission to take the prescribed oathbefore the President. . . Article 107 ordains that theiroriginal letters of appointment continue to be valid andbinding and that the Judges may continue to hold officeuntO they are removed under Article 107(2), or reachthe age of retirement.”
Wanasundera J. (also agreeing with the majority) said atpage 248,
"This (Article 107(2)) is the only provision in theConstitution dealing with the removal of a Judge whois already holding office… Article 107(2). . . is a specialand specific provision.” (Emphasis mine).
Justice Wanasundera agreed with learned Queen’sCounsel’s submission that a Judge would not automatically
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(Wadugodapitiya, J.)
331
vacate his office or be removed therefrom by a mere failureto take the oath of office, but that a wilful or contumaciousrefusal to take the oath could amount to misconduct ormisbehaviour, and may, in appropriate circumstances, providea ground for disciplinary action against such Judge.
Even Ranasinghe J, (as he then was) who was one of thetwo dissenting Judges, said (at page 290), agreeing in thisrespect with the majority of seven Judges, '
“Article 107 of the Constitution is a provision whichguarantees the independence of the Judiciary by assuringsecurity of tenure, and lays down that a Judge is removableonly ‘on the ground of proved misbehaviour or incapacity’,and that too only by following the procedure so laid down.This Article, therefore, provides for the ‘removal’ of aJudge. This is the only way in which a Judge, who isin office, could be removed. Upon being so removed,the Judge would cease to hold office.”
The Attorney-General submitted, in this connection thatparagraphs (2) and (3) of Article 107 constituted the only pathavailable for the removal of the Chief Justice, and that anyprocess for his removal other than under paragraphs (2) and(3) of Article 107 would be invalid. He emphasized the words,“shall not be removed except by” occuring in Article 107(2).
On the important question of jurisdiction, he submittedthat inasmuch as the jurisdiction of the Supreme Court wasspelt out in Article 118 onwards, and inasmuch as the onlymethod of removal of the Chief Justice was through the specificprocess under paragraphs (2) and (3) of Article 107, and theprocedures thereunder, the jurisdiction of the Supreme Courtto deal in any manner with the removal of the Chief Justice(as opposed to its jurisdiction to review the appointment inappropriate proceedings as adverted to by Fernando J, in Silvav. Barvdaranayake111 has been completely taken away by theConstitution itself. He was of the view therefore that it would
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be unconstitutional to grant the declaration sought by thePetitioners. Indeed, no member of the public could, under theConstitution, move a Court to have a member of the Judiciaryremoved in the manner the Petitioners are praying for. Thisapplied even to the minor Judiciary, where the power ofremoval was with the Judicial Service Commission.
These submissions are possessed of much substance, andI would agree with the learned Attorney-General.
It seems to me, upon a proper construction of paragraphs
and (3) of Article 107 and upon the authority of the variousdicta cited above, that it is quite clear that paragraphs (2) and
of Article 107 of the Constitution provide the only way inwhich the Chief Justice (1st Respondent) could be removedfrom office. I would therefore say that the framers of theConstitution, in their endeavour to make the position of theJudges independent and assure their security of tenure,“invested them with the status of irremovability save on thelimited grounds and manner specifically set out in itsprovisions,” viz., paragraphs (2) and (3) of Article 107 of theConstitution.
I am also of the view that, that being the case, this Courtin proceedings under Article 126 of the Constitution ispowerless, and indeed has no jurisdiction to grant thedeclaration prayed for by the Petitioners.
For the reasons set out above, I would uphold the firstpreliminary objection raised by the Attorney-General that theappointment of the Chief Justice cannot be questioned in theseproceedings.
I shall now deal with the second preliminary objectionraised by the Attorney-General, viz.,
There are glaring deficiencies in the pleadings whichwould disentitle the Petitioners from presenting their
cases before this Court:
Victor Ivan and Others v. Hon. Sarath N. Silva and Others
(Wadugodapitiya, J.j-
333
SC
The Attorney-General said that he would be basing himself
entirely on the documents produced by the Petitioners.
A In regard to S.C. Application 902/99(F/R), accordingto the Petitioner, he filed case No. 16799/D on 15. 12. 93in the District Court of Colombo, praying for a divorcefrom his wife, and citing the 1st Respondent asco-respondent, which plaint was rejected by Mr. UpaliAbeyratne, District Judge on 16. 2. 94. Thereafter, thePetitioner says he filed a second divorce case No. 17082/D on 10. 6. 94 in which the name of the 1st Respondent asco-respondent was expunged also by Mr. Upali Abeyratne,District Judge on 7. 7. 94, after which, there had been anapplication for alimony pendente lite, in which order wasmade on 15. 9. 94 directing the Petitioner to payRs. 10,000/- per month. Thereafter, on 23. 9. 94 thePetitioner made a complaint against Mr. Upali Abeyratne,District Judge, to the Judicial Service Commission, whichin turn referred the matter to the Attorney-General foraction. The Petitioner states that on 28. 9. 94 the casewas heard ex parte, and his wife was granted a divorce onthe ground of constructive malicious desertion and he wasordered to pay a sum of Rs. 1 million as permanentalimony to her. The Petitioner says he tendered notice ofappeal but this was rejected. He thereafter filed a revisionapplication in the Court of Appeal and when his Court ofAppeal application and his revision application to the Courtof Appeal were pending, a writ was issued to seize andauction his property to recover the said Rs. 1 million. ThePetitioner states that he had no option but to enter into asettlement by withdrawing his application in the Court ofAppeal in return for the waiver of the Rs. 1 million. I shallrefer to this settlement dated 29. 5. 96 presently, to showin what different circumstances this settlement wasentered into by the Petitioner.
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The contention of learned Counsel for the Petitioner wasthat, while the Petitioner’s divorce case was pending, Mr. UpaliAbeyratne, the then Additional District Judge of Colombo,was in contact with the Is1 Respondent and that he acted onthe instructions of, and was influenced by the lsl Respondent,at a time when the latter was a Judge of the Court of Appeal.In support of this contention, the Petitioner produced markedP15, an affidavit from Mrs. Hemalatha Tillekeratne, wife ofHigh Court Judge, Mahanama Tillekeratne dated 11.7. 99.
Before going further, I shall set down here, an Englishtranslation of the said affidavit marked PI5, which runs asfollows:
“1. I am the affirmant.
In or around April 1994, I along with my husbandand two children came into occupation of Flat No.278B, Sarana Road, Bauddhaloka Mawatha, Colombo.
Some houses situated around that house were usedas official residences of Judges.
The house opposite to our residence was occupied byUpali Abeyratne and his family, who was a DistrictJudge of Colombo.
Our residence did not have telephone facilities andwas a privately owned premises.
For the purpose of receiving telephone messages fromChilaw given by my husband who was a High CourtJudge of the North Western Province, as well as othermessages, we had given the telephone number697053 which belonged to Upali Abeyratne.
Whenever there was a message for us, someonefrom our residence used to visit their house.sc
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(Wadugodapitiya. J.)
335
Either in June or July 1995 or close to that period,around 5.00 p.m. I received a message and visitedthat house.
After the telephone conversation, Mrs. Abeyratneintroduced to me, a person who was seated in thesitting room.
She introduced him as Mr. Sarath Silva, a Judge ofthe Court of Appeal. I was introduced as the wife ofJudge Tillekeratne. At that moment, I noticed JudgeUpali Abeyratne seated on an easy chair.
When I was introduced to him, he commended myhusband, Mahanama Tillekeratne as an eminentJudge of this country.
At that time Mr. Abeyratne was reading some papers.
I did not speak with this stranger. Except for what isstated above, he too did not speak to me personally.
I returned to my residence. Even whilst returninghome I noticed that the person who was introducedto me as Sarath Silva was remaining in theirresidence.”
Signed by AffirmantThe Attorney-General attacked P15 as a false affidavitmade specially for the purpose of this case and said that it isthis false affidavit which forms the basis of the Petitioner’sentire case before this Court.
Firstly, the Attorney-General produced the relevantextract of the telephone directory for the year 1995 which
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showed quite clearly that the telephone Number 697053referred to in the affidavit, belonged not to Mr. Upali Abeyratneat Sarana Road, Bauddhaloka Mawatha, as averred in theaffidavit PI5, but to a Mr. Romesh de Silva, who lived atNo. 79/14, Dr. C.W.W. Kannangara Mawatha, Colombo 7 andwho still has the same telephone. This then is clearly acompletely false averment made by Mrs. HemalathaTillekeratne in paragraph 6 of her affidavit, PI5.
Secondly, and more importantly, the Attorney-Generalshowed conclusively, that contrary to what Mrs. Tillekeratnehas averred in paragraph 8 onwards in her affidavit, PI5. shecould never have met the 1st Respondent at the residence ofUpali Abeyratne at Sarana Road, Bauddhaloka Mawatha inor around June or July, 1995. The Attorney-General was ableto prove by reference to letter dated 18. 10. 99 sent to theRegistrar, Supreme Court by Upali Abeyratne, that in themiddle of January, 1995 the said Upali Abeyratne had vacatedthe official bungalow at 380/66, Sarana Road, BauddhalokaMawatha, Colombo 7 and had since then, resided inKurunegala, to which station he was transferred on 1. 1. 95.In mid-January 1995, Mrs. Rohini Walgama, the new DistrictJudge, Colombo, came into residence, on being given vacantpossession of the said bungalow.
The Attorney-General also produced another letter dated
10. 99, sent by the Secretary, J.S.C to the Registrar, S.C.officially confirming the above position.
Both these letters have been extracted from thedisciplinary inquiry file relating to the 1st Respondent andreplies addressed to the Registrar, S.C. sent on the directionsof this Court.
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(Wadugodapitiya, J.)
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For the sake of fullness I reproduce both letters below: –
Your. No. P76/9918th October 1999
Mr. M.A. Cyril,
The Registrar of the Supreme Court,
Superior Courts Complex,
Hultsdorp,
Colombo 12.
Dear Sir,
COMPLAINT AGAINST MR. SARATH N SILVAPRESIDENT'S COUNSELI refer to your letter bearing No. P 76/99 dated October 8,1999.
This is to inform you that I was residing in the officialbungalow No. 380/66, Sarana Road, Bauddhaloka Mawatha,Colombo 7, only up to mid January 1995 as AdditionalDistrict Judge of Colombo. Since then 1 was not in occupationof any bungalow or premises at Sarana Road, BauddhalokaMawatha, Colombo 7.
From the 1st of January 1995 I was transferred toKurunegala as the District Judge and since then I was notentitled to occupy the said bungalow at Sarana Road as I wasprovided with an official bungalow at Kurunegala.
Upon my transfer to Kurunegala the official bungalow atSarana Road, was allocated to Mrs. Rohini Walgama thethen Additional District Judge of Colombo to whom,vacant possession of the said bungalow was handed overby me in the month of January 1995.
I was not in occupation of the said bungalow or of anyother bungalow at Sarana Road, Bauddhaloka Mawatha,
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Colombo 7, in the months of June and July 1995, and myresidence from mid January 1995 upto date has been at No.66/2B Thalawathugoda Road, Pitakotte.
Relevant documents and letters relating to my transferfrom Colombo to Kurunegala as well as to the handing overpossession of the said bungalow are available at the office ofthe Judicial Service Commission.
Yours faithfully,
Sgd.
H.M.U. Abeyratne,
District Judge,
Gampaha”
(Emphasis mine)
OFFICE OF THE JUDICIAL SERVICE COMMISSION
P.O.Box 573,
Colombo 12, October 14, 1999
My No. JB/10/16/94
Registrar,
Supreme Court,
Colombo 12.
COMPLAINT AGAINST MR. SARATH N SILVAPRESIDENT'S COUNSELWith reference to your letter dated 08. 10. 99 on the abovesubject.
Mr. A.H.M.U. Abeyratne, D.J. Gampaha has not beenresiding in a government bungalow situated at Sarana Road,Bauddhaloka Mawatha, Colombo 7, during the months ofJune and July, 1995.
sc
– Victor Iuan and Others v. Hon. Sarath N. SUva and Others
(Wad ugodapitlya, J.)
339
The bungalow occupied by Mr. Abeyratne has been takenover by Mrs. P.R. Walgama as from 22. 01. 1995.
Sgd. Secretary
Judicial Service Commission.”
The affidavit P15 affirmed to by.Mrs. HemalathaTillekeratne is therefore false.
The importance to the Petitioner of the affidavit P15 isthat it is the only item of evidence which links the 1stRespondent to the District Judge, Upali Abeyratne. WithoutPI5, the Petitioner has no material whatsoever, to show anyconnection between the 1st Respondent and Upali Abeyratne.Without the affidavit, P15, the Petitioner can only makespeculative allegations connecting the 1st Respondent withUpali Abeyratne, based entirely upon the respective positionsthey hold.
However, the real importance of P15 to the Petitioner isthat it was vital for the purposes of the complaint markedP14 which the Petitioner made to the then Chief Justice on14. 8. 99 under Section 42 of the Judicature Act, which wasabout a month before the 1st Respondent was appointed ChiefJustice on 16. 9. 99 seeking the disenrolment of the 1stRespondent. The Petitioner seeks to support the avermentsin this complaint with the affidavit, P15, and it is this complaintwhich in turn forms the basis of the Petitioner’s presentfundamental rights application, which is now before us. Thusit is seen, that the false affidavit, P15, formed the foundationfor Petitioner's complaint (PI 4) to the then Chief Justice, andthe complaint, PI4, in turn formed the basis for the Petitioner’spresent fundamental rights application before us.
Thus, I am in agreement with the Attorney-General thatbeing a crucial document, once the affidavit P15 is proved tobe false, the foundation of the Petitioner’s case is necessarily
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removed. No reliance whatsoever can thereafter be placed onwhatever flows therefrom.
The next matter I wish to touch on is that the Attorney-General pointed out that the Petitioner, in his amended petitionstates that he had no other option but to agree to settle thematter by withdrawing his applications pending in the Courtqf Appeal. The Attorney-General quite correctly pointed outthat this settlement was arrived at, not before Mr. UpaliAbeyratne, who had gone on transfer to Kurunegala, but beforeMr. M. Paranagama, the new District Judge, Colombo, againstwhom the Petitioner makes no complaint. Mr. Paranagamahas made a careful record of the settlement proceedings inCourt which shows the exemplary care and concern shownby him as a District Judge. This document is self-explanatory,and once again, for the sake of fullness, I wish to quote atranslation thereof in full. The document runs as follows:
“(Before Mr. M. Paranagama, Additional District Judge)
Recorded by: M.K. AlwisDistrict Court, ColomboCase No. 17082/Divorce
29. 05. 1996Plaintiff present
Mr. Ranjith Karunaratne, Attorney-at-Lawappears for the Plaintiff
1st Defendant Petitioner absent.
Mr. Ikram Mohamed appears for her withMr. A.M. Faiz and instructed byMrs. Anoma Gunatillake
I inquired from both parties matters relating to the factsof this case.
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Victor Ivan and Others v. Hon. Sarath N. SUva and Others
(Wadugodapitiya, J.)
341
Counsel on behalf of the 1st Defendant Petitioner statesthat he moves for writ of execution against the Plaintiff.Counsel for the Plaintiff moves that on the basis of theobjections filed by the Plaintiff that the writ of execution prayedfor by the 1st Defendant Petitioner be not ordered to be grantedon the basis of the objections tendered by the Plaintiff. Counselon behalf of the Plaintiff further moves that the present inquirybe adjourned as the inquiry into the revision application madein respect of the earlier orders in this case is scheduled to betaken up in the Court of Appeal on 03. 06. 1996. It is submittedon behalf of the 1st Defendant Petitioner that the presentinquiry should be proceeded with and an order be made, asno stay order has been granted in the revision application.
Court explains matters to the Plaintiff by drawing theattention that even though a revision application has beenfiled in the Court of Appeal in respect of the earlier ordersmade by this Court as no stay order has been given the courtis bound to take the matter up for inquiry today. The courtfurther explains to the Plaintiff that after the conclusion ofthe inquiry, an order has to be made on the application of the1st Defendant Petitioner.
Plaintiff states to court as follows:
He states that he would be content if he is given a hearingand justice is meted out to him. At this stage I further explainthe position to the Plaintiff as it is found in the case record.The court further draws the attention to the fact thatsubsequent to the decree nisi being made absolute againsthim the appeal has not been preferred in the propermanner. The court further points out to the Plaintiff thatas he has not acted properly in prosecuting the appeal,he is bound to face certain difficulties in this case. Thecourt also draws the attention of the Plaintiff to the factthat he has to face the present situation as a result of hisnot taking the appropriate steps at the given time thoughhe has chosen to challenge the orders of this court.
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I informed the plaintiff that the order has to be madeafter holding an inquiry into the application of the firstDefendant Petitioner as there is no stay order granted in therevision application. The court inquires from, the Plaintiff asto the nature of the loss he has suffered in view of thecircumstances he had to face in this case. Court also inquiredfrom the Plaintiff the nature of the relief that he seeks at thisstage. Plaintiff in reply stated that all what he requires isan opportunity of being heard and justice meted out. Atthis stage the court allowed the Plaintiff to state all whathe wished to submit to court. He states that it was difficultfor him to prosecute this case and the court did not give hima fair hearing.
The court further explained to the Plaintiff the nature ofthe order that could be made at the conclusion of the inquiryinto the application of the first Defendant Petitioner. Furtheras there is no stay order granted in his revision applicationthe court explained to the Plaintiff the difficulty of adjourningthe present inquiry.
I further explained to the Plaintiff the relevant factualposition that has arisen in this case, the present positionof the case and the consequences of the failure on thepart of the Plaintiff to take certain steps at the appropriatetime.
Accordingly the court decided to take up this matter aftercase No. 15653/L fixed for trial for the day is heard to considerwhether the Plaintiff is willing to come to a settlement withregard to the first Defendant Petitioner’s application and therevision application of the Plaintiff and to put an end to allhis problems. This case is kept down until such time all othertrials are adjourned for the day in order to give an opportunityto the Plaintiff to consult his counsel and to arrive at a decisionas to whether he is agreeable to come to terms and whetherIs1 Defendant Petitioner should withdraw her application.
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(Wadugodapttiya, J.)
343
At this stage the Plaintiff states that as the court hasadvised him to arrive at a settlement in order to put in all hisproblems to an end that he is willing to withdraw his revisionapplication. However, as the Plaintiff has stated that he iswilling to withdraw his revision application as the court hasadvised to do so I am of the opinion that the Plaintiff has notvoluntarily agreed to withdraw the revision application. Courtfurther explains to the Plaintiff that in the event of his agreeingto withdraw the revision application what is expected of himis an unconditional withdrawal. It was further explained tohim that merely because the court had advised him heshould not withdraw all his cases, but he should do sovoluntarily and in his own welfare. I inform the firstDefendant Petitioner and the Plaintiff to disclose their mindsto the court once the trial in the other case is over.
After the conclusion of the trial in case No. 15653/L, thiscase was again mentioned to consider a settlement. Atthis stage Plaintiff agrees to withdraw the revisionapplication bearing number 902/94 and the applicationfor leave to appeal bearing number 231/94, if the1st Defendant Petitioner abandons her claim sought in herpetition. The Plaintiff states that he voluntarily withdrawshis application for his own benefit, as pointed out by court.Plaintiff undertakes to withdraw the. two applicationsbefore the Court of Appeal on the date fixed for bearing'such date being 03. 06. 1996.
Replying on this undertaking the 1st DefendantPetitioner agrees to withdraw the prayers claimingpermanent alimony and costs of action ordered anddecreed against the Plaintiff as per decree entered in thiscase. The 1st Defendant Petitioner further undertakes torefrain from taking steps to claim damages or cost of action •either in-this case itself or some other action.
The terms of settlement having been duly explainedto the Plaintiff, he places his signature on the case record
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having understood the contents thereof. Accordingly theapplication of the 1st Defendant Petitioner claiming permanentalimony and cost of action as per decree entered against thePlaintiff, stands dismissed with no costs. Accordingly it isdeclared that the 1st Defendant Petitioner has no right to claimpermanent alimony and cost of action against the Plaintiff onthe decree nisi which is made absolute. In the circumstancesthe part of the decree nisi entered to the effect that the Plaintiffand the 1st Defendant be separated from bed and board foreveron the ground of constructive malicious desertion is madeabsolute.
Sgd.
M.P. Paranagama
Add. DJ, Colombo, 29. 05. 1996”
(Emphasis mine)
It is seen that Mr. Paranagama, the District Judge, hadtaken great pains and great care to give the Petitioner a fullhearing and to ensure that the settlement was a completelyvoluntary one resulting in a final end to the litigation betweenthe parties. As agreed at the settlement, the Petitioner on hispart withdrew both his cases which were before the Court ofAppeal. This was done as agreed, on 3. 6. 96 when both casescame up for hearing before the Court of Appeal.
Thus, it appears that on 3. 6. 96 all litigation between thePetitioner and his former wife was at an end.
Thus it is seen that the Petitioner has based his complaint(P14) to the former Chief Justice against the 1st Respondentunder Section 42 of the Judicature Act mainly onMrs. Hemalatha Tillekeratne’s affidavit, (PI5) which has nowbeen proved to be false. However, he forwarded the saidcomplaint (P14) to the former Chief Justice on 14. 8. 99 abouta month before the 1st Respondent was appointed Chief Justiceon 16. 9. 99. Thereafter, on 15. 10.. 99 he filed the present
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fundamental rights application claiming that his fundamentalrights have been violated by reason of the fact that thePresident has appointed the 1st Respondent as Chief Justice,when this complaint to the Supreme Court (PI4) was pending.The juxtaposition of the dates is startling, when one considersthat the Petitioner waited for over three years after his caseswere finally settled, to complain to the former Chief Justiceagainst the 1st Respondent; which complaint (P14) he lodgedwith the Supreme Court about a month before the1st Respondent was appointed Chief Justice.
I do not wish to re-iterate the facts. Suffice it to say, thattaking all the facts into consideration, I agree with theAttorney-General that the deficiencies in the pleadings areindeed glaring, and are such as to render this applicationbaseless.
In regard to S.C. Application 898/99(F/R), the Attorney-General submitted, and Mr. Abeysuriya, P.C. agreed, thatit was document P6 (dated 9. 9. 98), which formed thebasis for the complaint P7 (dated 12. 8. 99) made by thePetitioner to the Supreme Court under Section 42 of theJudicature Act against the 1st Respondent (when he wasAttorney-General), seeking the disenrolment of the 1stRespondent, and that, in turn, it is the complaint P7 whichforms the basis of the present fundamental rightsapplication before us. The central factor is the allegationrevolving around, Lenin Ratnayake, Magistrate,Baddegama, as published in the “Ravaya" newspaper ofwhich the Petitioner is the Chief Editor.
The Petitioner’s grievance is that the Supreme Court hasnot yet completed investigations into his complaint P7, andsays that until such investigation is completed, the 1stRespondent should not be appointed Chief Justice. He goeson to say that since, however, the 1st Respondent was in factappointed Chief Justice before completion of the investigation,his fundamental rights under Article 12(1) of the Constitutionhave been violated.
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A copy of P6 has been filed by the Petitioner who in replyto the Attorney-General’s query as to how he came to be inpossession of an official document marked “Confidential",made known to Court for the first time during the hearingbefore us, through his Counsel, Mr. Abeysuriya, P.C. that P6had been personally handed over to him by its recepient, theformer Minister of Justice and Constitutional Affairs, and thatthat was how he came to be in possession of P6.
The letter P6 which is marked “Confidential", is dated
9. 98, and was addressed by the 1st Respondent (who wasthen Attorney-General) to the then Minister of Justice andConstitutional Affairs in reply to a communication from thelatter, in regard to the Lenin Ratnayake case.
The Attorney-General’s submission was that, inasmuchas P6 was a confidential communication between the Attorney-General who is the Legal Advisor to the Government and theMinister of Justice, which communication he said, would havebeen sent as a matter of courtesy, in reply to the Minister’squery as to what the present position was in the LeninRatnayake incident, such document (P6), cannot be utilizedby the Petitioner who is a third party, as the basis for acomplaint (P7) under section 42 to the Supreme Court againstthe 1st Respondent. He stressed that the entire complaint (P7).was based on the confidential letter, P6, and strongly urgedthat since the Petitioner was a third party and also, since theletter P6 relates to a complaint against yet another person(viz., Lenin Ratnayake), the Petitioner had no right, and nolocus standi either, to use P6 in the manner he did. On thecontrary, it was the Minister of Justice, if at all, who, beingthe legitimate recepient of P6, could have taken action thereonif he so desired. It is worthy to note that the confidentialdocument, P6, does not touch the Petitioner himself in anyway. His only concern, if any, seems to be as a member of thepublic.
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Going further, the Attorney-General submitted that, thecomplaint to the Supreme Court (P7) which is based on P6,cannot in turn, form the basis of the present fundamentalrights application before us which alleges violations of thePetitioner’s fundamental rights under Article 12(1) of theConstitution. In this connection Mr. Abeysuriya, P.C., agreedthat the fundamental rights application was based directlyon P6.
The Attorney-General strenuously contended that in thecircumstances set out above, the Petitioner being a third party,cannot claim a violation of a fundamental right arising fromthe letter P6, and added that the Petitioner had no standingto do so either.
This apart, the Attorney-General pointed out that, in anyevent, in the letter P6 the 1st Respondent, as Attorney-General.,did in fact set out the correct factual position with regard tothe Lenin Ratnayake issue, and even learned Counsel for thePetitioners conceded that this position was correct, and hadno complaint to make thereon. In any event, no consequencescould flow from P6, and contrary to what the Petitioner allegesin paragraph 11 of P7, the letter P6 neither distorted the facts,nor did it have the effect of misleading the Minister of Justiceto whom it was addressed. It was never alleged that P6contained material that could be said to be false.
It was suggested that there was plenty of evidence againstLenin Ratnayake in respect of the alleged act of rape, but thatthe then Attorney-General (1st Respondent in the presentapplication) failed to take action as he was said to be a relativeof Lenin Ratnayake. However, it transpired that no complaintwhatsoever had been made to the Police or to any otherinvestigative authority by the victim of the alleged rape. Infact, the very first complaint was made to the CriminalInvestigation Department (CID) about two years later whenthe CID was investigating into a completely different charge,
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viz., a charge of criminal defamation against the Ravayanewspaper, on a complaint made by Lenin Ratnayake.
Further, Mr. Abeysuriya, P.C., alleged that no action wastaken by the Judicial Service Commission (JSC) in regard tothe Petitioner’s complaint. This is factually incorrect. As ittranspired, the J.S.C. appointed three Judges of the Court ofAppeal to inquire into the complaint of the Petitioner andthe report was sent to the Attorney-General to considerwhether charges were to be framed against Lenin Ratnayake.Thereafter Lenin Ratnayake was interdicted from service andremains interdicted. Most importantly, there is an inquiry nowproceeding against Lenin Ratnayake on certain disciplinarycharges.
I must not fail to mention that the Petitioner himself relieson and incorporates as part and parcel of his own application,the complaint made to the former Chief Justice under section42 of the Judicature Act, by the Petitioner in the otherapplication before us, viz., S.C. Application 902/99(F/R) whichlatter, as already shown, was based upon a false affidavit.The Petitioner has attached a copy of such false affidavit tohis own application, marked P8, thus irrevocably tainting hisown application.
I have considered this matter with care, and I am inclinedto agree with the Attorney-General's submissions.
Even though, as he claims, the Petitioner was given theconfidential letter P6 by the former Minister of Justice andConstitutional Affairs, it is clear that it was given for thePetitioner's information and certainly not for the purpose forwhich the Petitioner later put it. There is no doubt that hadthe former Minister-of Justice even suspected that theconfidential letter P6 was going to be misused, I have no doubtthat he would never have parted with it. I am therefore of theview that the confidential communication between the Legal
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Adviser to the Government (the 1st Respondent), and theGovernment was entitled to the sanctity it deserved, and Ifeel that not only could the Petitioner not have used it to makea complaint to the Supreme Court against its maker (l8tRespondent) but could not have used it to ultimately found aclaim for a violation of a fundamental right under Article 12(1)of the Constitution, which the Petitioner says arose from it.Being a third, party he had no status to utilize, in the way hedid, the confidential document P6 which related to yet anotherperson, viz., Lenin Ratnayake.
In the result I agree with the Attorney-General, and findthis application baseless.
In regard to S.C. Application 901/99(F/R), the Petitionertherein himself chose to rely on the two complaintsaforesaid which had been made to the Supreme Courtunder Section 42 of the Judicature Act by the Petitionersin S.C. Applications 898/99 and 902/99(F/R), referredto above.
I have to observe that, inasmuch as the Petitioner in S.C.Application 901/99(F/R) himself relies on and bases his ownapplication on the two complaints aforesaid, which as shownabove are tainted with falsity, the same blemish wouldnecessarily apply to S.C. Application 901 /99(F/R), as well. Inthe circumstances, I would agree with the Attorney-General,and find that this application too is baseless.
For the reasons set out above, in respect of each of thethree applications before us, I would uphold the secondpreliminaiy objection raised by the Attorney-General.
I now propose dealing with the third preliminary objectionraised by the Attorney-General., viz.,
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The three petitioners in the three applications before usallege that their fundamental rights guaranteed by Articles12(1) and 17 of the Constitution have been infringed.
In addition, the Petitioner in S.C. Application 901/99(F/R) alleges that his fundamental rights under Articles14(l)(a) and 14(l)(g) have been infringed. All of them allegethat these fundamental rights have been infringed by executiveor administrative action, viz., the appointment of the lslRespondent as Chief Justice by the President on 16. 9. 99.
Although the Chief Justice has been named 1stRespondent in all three applications, not one of the Petitionersalleges the 1st Respondent himself has been guilty of anyexecutive or administrative act which violated or was aboutto violate any of their fundamental rights.
Clearly, therefore, there is no complaint of anyinfringement of the fundamental rights of any of thePetitioners, by any executive or administrative act performedby the 1st Respondent. Thus, simply put, according to all threepetitioners, the only violation is the act of appointment itself,and the only violator is the President.
That being the case, in terms of Rule 44(1) of the SupremeCourt Rules of 1990, the Petitioners must set out what thenature of the violation is, and how and in what manner theviolation they complain of, took place. The burden, clearly, ison the Petitioners to establish a prima facie case, for thepurpose of obtaining leave to proceed. Have they dischargedthis burden? Upon a consideration of all the material presentedby the Petitioners, I think they have not.
It is seen that the Petitioners in both S.C. Applications898/99(F/R) and 902/99(F/R) lodged complaints underSection 42 of the Judicature Act with the former Chief Justice,against the 1st Respondent when he was Attorney-Generalpraying that he be disenrolled. Their grievance is that while
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such complaints were pending, the 1st Respondent wasappointed Chief Justice by the President. The Petitioners allegethat such act of the President was improper and arbitraryand that such arbitrary appointment violated theirfundamental rights as aforesaid. I must add, that the Petitionerin S.C. Application 901/99(F/R) also bases himself on theself-same section 42 complaints aforementioned, and harboursthe same grievance.
The first question that arises is whether it is open to thePetitioners to lodge complaints with the (then) Chief Justiceagainst the 1st Respondent under Section 42 of the JudicatureAct just about a month prior to the date he was appointedChief Justice, and thereafter claim a violation of theirfundamental rights after the President in fact made theappointment, on the ground that the said appointments weremade when the complaints were pending.
In this connection it is necessary to mention that thePetitioner in S.C. Application 898/99(F/R) filed his complaintagainst the 1st Respondent with the (then) Chief Justice on
8. 99 and that the Petitioner in S.C. Application 902/99(F/R) filed his complaint against the 1st Respondent on14. 8. 99. The President appointed the 1st Respondent as Chief.Justice on 16. 9. 99, on the retirement of the former ChiefJustice.
It also transpires that the “grievance” of the Petitioner inS.C. Application 898/99(F/R) arose, when he claimed, duringthe hearing before us, that the former Minister of Justice andConstitutional Affairs personally handed over to him, theconfidential letter he had received from the 1st Respondent(when he was Attorney-General), in reply to the inquiry madeby him regarding the allegations of misconduct againstMr. Lenin Ratnayake, Magistrate, Baddegama. This letter,(produced marked P6) was dated 9. 9. 98, and was presumablyhanded over to the said Petitioner shortly thereafter. This vitalletter (P6) was the one upon which both the complaint dated
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12. 8.99 against the 1st Respondent to the (then) Chief Justice,and the Fundamental Rights Application No. 898/99 dated14. 10. 99 were based. What is noteworthy is the fact thatalthough this Petitioner received the letter (P6) either on9. 9. 98 or presumably, shortly thereafter, (no date of actualreceipt was mentioned), he chose to wait for a period of elevenmonths till 12. 8. 99 to complain to the (then) Chief Justiceagainst the 1st Respondent; this too, in the context where theappointment of the 1st Respondent as Chief Justice took placea month later, on 16. 9. 99.
It is also seen that the “grievance” of the Petitioner inS.C. Application 902/99(F/R) arose after he withdrew hisCourt of Appeal cases on 3. 6. 96 after entering into asettlement in the District Court on 29. 5. 96, and if he was infact aggrieved, he could have complained against the1st Respondent to the (then) Chief Justice anytime thereafter.He however chose to wait over three years till 14. 8. 99 tolodge his complaint with the (then) Chief Justice; this too, inthe context where the appointment of the Is’ Respondent tookplace a month later, on 16. 9. 99.
It is also noteworthy that the two Petitioners referred toabove filed their complaints in the Supreme-Court undersection 42 of the Judicature Act within just three days of eachother; one on 12. 8. 99 and the other on 14. 8. 99, and bothwould allege that by virtue of the fact that these two complaintswere filed against the 1st Respondent and were thus pending,the President was precluded from appointing the1st Respondent as Chief Justice.
The juxtaposition of the dates would show among otherthings, that it was simply impossible to have these twocomplaints inquired into and concluded within the short spaceof time left before the date of appointment of the Chief Justice.Nevertheless, the Petitioners claim a violation of theirfundamental rights alleging that the President acted arbitrarily
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by appointing the 1st Respondent'as Chief Justice while thetwo complaints above mentioned were pending before theSupreme Court.
Before going further, I might say that, as far as the law onthe matter is concerned, the mere fact that there is adisciplinary proceeding pending against him, would notconstitute a bar to the promotion of an officer or to his receivinga higher appointment, provided he is otherwise qualified.However, if such officer is subsequently found guilty, he canbe dealt with appropriately, depending on the gravity of thecharges against him. This of course is, based on thepresumption of innocence and on the fact that such officerhas not been found guilty as yet.
This view is set out in I.M. Raj Bandula v. Lanka GeneralTrading Co. Ltd. et all6) in which Fernando J. held, that thefact that there was a disciplinary inquiry pending againstthe officer in question for alleged misappropriation ofRs. 300,000/-, was no bar to his being promoted to the postof Assistant Accountant,, as he had not been found guilty, butthat, if found guilty he would be dealt with.
Even fundamental rights violators have been held not tobe debarred from promotion.
Thus, in SADMP Gunasekera et al u. Inspector-General ofPolice et alm-where promotions to posts of AssistantSuperintendents of Police were in issue, it was found that,the 14th and 19th Respondents had been ordered to payRs. 2500/- each as compensation for infringements of Article11 of the Constitution in two separate Fundamental RightsApplications filed against them earlier.
My brother, Gunasekera J., having said that the courtorders against the 14th and 19th Respondents aforesaid couldnot be equated to convictions by Courts of Law, held that the
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said 14th and 19th Respondents were not disqualified frombeing promoted to the posts of Assistant Superintendents ofPolice.
Thus, it seems clear and I hold accordingly, that, the twodisciplinary proceedings pending against the Is' Respondentin the Supreme Court, certainly did not constitute a barto his being appointed Chief Justice by the President on16. 9. 99. To hold otherwise would, 1 think, open the door togreat mischief, for it would be the easiest thing for an interestedparty to forward a petition complaining against some officer,and thus simply and effectively put a stop to his appointment,promotion or extension of service, or even to his scholarshipor trip abroad!
In any event, I must say that once complaints undersection 42 of the Judicature Act are made to the Chief Justice,they are in the sole charge of the Supreme Court and theinquiries relating to them, together with all incidental matters,are strictly confidential. Therefore, once the Supreme Courtis seized of the matter, neither the complainant nor anyoneelse has access to information as regards its progress.
As I have stated above, in terms of Rule 44(1) of theSupreme Court Rules of 1990, the burden is on the Petitionersto set out what the violation is and how and in what mannerthe alleged violation of their fundamental rights took place.What indeed the Petitioners say is, that the President actedarbitrarily in appointing 1st Respondent as Chief Justice. But,merely making such an allegation is not sufficient. Thepetitioner must show upon what evidence and upon whatmaterial they make this serious allegation against thePresident. However, we see that the most the Petitioners areable to say is that the President was aware that there weretwo complaints pending in the Supreme Court against the1st Respondent at a time when he was Attorney-General, andthat despite being thus aware, the President went ahead andappointed him Chief Justice.
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In the absence of anything else, this seems to be merespeculation, for there is neither evidence nor any other materialto show that the President was in fact aware as is alleged bythe Petitioners.
In any event, as I have set out above, inasmuch as, allproceedings in respect of such complaints are conducted inthe strictest confidence, the Petitioners have not succeededin showing how the President could have come by thisinformation.
In any event, there is no material before us to show thatthe President was informed of the existence of the twocomplaints either, and so, in the absence of material to showthat the President did in fact know of it, there is no alternativebut to presume that she did not.
In the result, in the absence of any other material, theonly circumstance we are left with is that the Presidentappointed the 1st Respondent as Chief Justice, being unawareof the two complaints that were pending against him. In thesecircumstances it does not seem possible to conclude that thePresident had acted arbitrarily.
In Silva v. Bandaranayake(supra) the allegation was thatthe fundamental rights of the Petitioners were infringed byreason of the appointment of the 1st Respondent as a Judge ofthe Supreme Court by the President, and as Fernando J. said,
“The question then is whether the Petitioners haveestablished, prima facie, that there was no co-operationbetween the President and the Chief Justice. . . . While allfour Petitioners make these allegations (that there was nosuch co-operation), they neither claim personal knowledgeof the facts nor state the sources or grounds of their belief.They did not, in their petitions or in their submissions,indicate any possible source or any means of establishingthese matters.” Fernando J. also said, “where thePetitioners have not only failed to establish, prima facie,
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the absence of the necessary co-operation, but have alsofailed to indicate how they propose to supply thatdeficiency, it would be futile to grant leave to proceed inrespect of the alleged infringement of their fundamentalrights under Article 14(l)(g) which they say resulted fromthat alleged want of co-operation.” Fernando J. went onto say, that, “the presumption that official acts wereregularly performed, particularly at the level of the headof the Executive and the head of the Judiciary, cannotlightly be disregarded.”
Thus it appears, that in that case what Justice Fernandofound was that there was no prospect whatsoever, that suchevidence will be forthcoming, and therefore, leave to proceedwas refused.
In the instant applications, the situation is no different,and the position is that the Petitioners have not only failed toestablish, prima facie, that the President was aware of thetwo pending complaints against the 1st Respondent, undersection 42 of the Judicature Act, “but have also failed toindicate how they propose to supply that deficiency.”
They do not “claim personal knowledge of the facts”, nordo they purport to suggest the “source or grounds for then-belief.” Thus, there is no way of ascertaining whether thePresident knew of the two complaints or not.
The resulting position is that there is no material beforethis Court to enable it to proceed any further with theseapplications.
The Petitioners have therefore failed to present anymaterial to show that the President acted arbitrarily inappointing the 1st Respondent as Chief Justice. In thesecircumstances, it would indeed be futile to proceed any further.
The Attorney-General stated that the third objection raisedby him flowed into another ground, viz., that the Petitioner
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had no locus standi. The questions he posed were, what isthe locus standi the Petitioners have, to have and maintainthese applications? How are the Petitioners affected by theappointment of the 1st Respondent as Chief Justice?
The Attorney-General cited the case of Somawathie v.Weerasinghel8> which was one where the Petitioner complainedof the infringement of the fundamental rights under Articles11 and 13 of the Constitution. However, the complaint wasnot based on the violation of the Petitioner’s own rights, butthose of her husband.
Amerasinghe J. held (Kulatunga J. dissenting) that,“Construed in this way. Article 126(2) (of the Constitution)confers a recognized position only upon the person whosefundamental rights are alleged to have been violated, and
upon an Attomey-at-Law acting on behalf of such a person.No other person has a right to apply to the Supreme Court forrelief or redress in respect of the alleged infringement offundamental rights. The Petitioner is neither the person whosefundamental rights are alleged to have been infringed nor theAttomey-at-Law of such person. Therefore the Petitionerhas no locus standi to make this application.”
In the concluding paragraph of his judgment,Amerasinghe J. said,
“Article 126(2) of the Constitution, construed accordingto the ordinary, grammatical, natural and plain meaningof its language, gives a right of complaint to the personaffected or to his Attorney-at-Law, and to no otherperson. That was the intention of the makers of theConstitution as expressed in that Article. If it is believedto be inadequate and works injustice, the appeal must beto Parliament and not to this Court.”
It must be pointed out that the significant words in Article126(2) are –
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“Where a person alleges that any such fundamental rightor language right relating to such person has beeninfringed or is about to be infringed by executive oradministrative action. . (Emphasis mine).
An assessment of the situation clearly suggests that only“the person affected” by the executive or administrative actionis entitled to complain under Article 126(2) of the Constitution.
Thus the important questions that need to be asked inthis context are, how are the three Petitioners affected by theappointment of the 1st Respondent as Chief Justice by thePresident, and what standing do the Petitioners have to bringthese applications?
The Attorney-General submitted that in fundamentalrights applications, only those directly affected are the onesin respect of whom an exclusive jurisdiction is exercised bythe Supreme Court, and added that in such applications, theinterest has been narrowed down by Article 126(2) of theConstitution, which in fact makes it personal.
It appears that none of the Petitioners has locus standifor the reason that none of them is affected by the act of thePresident as contemplated by Article 126(2) of the Constitution,and therefore none of them is entitled to complain in theseproceedings.
Then again, none of the Petitioners had stated that hehad any interest in the appointment of the 1st Respondent asChief Justice, other than as a member of the public. Acomparison was made with the Indian concept of publicinterest litigation, but it appeared that unlike our Article126(2), the terms of Article 32 of the Indian Constitution, allowsany public spirited individual or association to file fundamentalrights applications. In Somawathie v. Weerasinghe181 KulatungaJ, said that having regard to the express provisions of Article126(2) of our Constitution, our courts cannot entertaincomplaints having the character of public interest petitions.
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It seems, however that even in such litigation, the Petitionershad to show some direct interest in the relevant project orissue. In any event, this Court was not dealing with any suchpublic interest litigation.
While the position of the Petitioners was that their interestlay in the general concept of an impartial judiciary, thePetitioner in S. C. Application 901/99(F/R) said that beingan Attorney-at Law, in addition to an infimgement of his rightsunder Article 12(1), his fundamental right to freedom of speechand expression (Article 14(l)(a)) and to his freedom to practicehis profession (Article 14(l)(g)) had also been infringed by theappointment of the 1st Respondent as Chief Justice, becauseof the allegations of moral turpitude against the Chief Justice.He however did not say how and in what manner this wouldinfringe his right to freedom of speech; nor did he say howand in what manner this would infringe his right to practisehis profession in any court anywhere in the island. He indeedforgot that he was in fact appearing before us in person, andmaking his submissions quite freely and untrammeled by anyrestrictions, real or fanciful. This Petitioner made no allegationwhatsoever that anyone at all had prevented him frompractising his profession, or hampered his practice in anyway. He did not claim either, to have been a contender for theoffice to which the 1st Respondent was appointed. Thus itseems that he has neither been deprived of his right to freespeech nor his right to practise his profession, and thereforehe is not entitled to any relief either under Article 14(l)(a) orunder Article 14(l)(g). It might be relevant to mention at thispoint that, in his petition, this Petitioner says that he is asenior journalist, and that he currently functions as theDeputy Editor of the Sunday Times newspaper.
All three Petitioners claim a violation of Article 12(1) ofthe Constitution, but have not shown how or in what mannersuch violation took place; neither do they disclose any materialshowing an infringement of Article 12(1). They neither allegeany discriminatory treatment in relation to the lsl Respondent,
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nor do they claim that they have been denied the equalprotection of the law. The Petitioners are therefore not entitledto any relief under Article 12(1) either.
For the reasons set out above, I uphold the third objectionraised by the Attorney-General and hold that there has beenno violation of any of the fundamental rights of any of thePetitioners. I also hold that in any event none of the Petitionershas locus standi to make these applications.
There is one other matter I wish to allude to, and that isthat all three Petitioners in the three applications before usclaimed a violation of Article 17 of the Constitution.
Article 17 of the Constitution states as follows:
17. “Every person shall be entitled to apply to theSupreme Court, as provided by Article 126, in respectof the infringement or imminent infringement, byexecutive or administrative action, of a fundamentalright to which such person is entitled to under theprovisions this Chapter."
The marginal heading to Article 17 reads as follows:
“Remedy for the infringement of fundamental rightsby executive action.” (Emphasis mine).
Although the Petitioners claimed that this was afundamental right, it appears that, as a plain reading of theplain words in Article 17 clearly show. Article 17 is only anenabling provision, albeit an extremely important one, underwhich a person whose fundamental rights “under theprovisions of this Chapter (viz.. Chapter III) have beenviolated, was “entitled to apply to the Supreme Court” forrelief. This position is made doubly clear by the marginalheading which employs the words, “Remedy for theinfringement of fundamental rights. …” (Emphasis mine).
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The Attorney-General agreed with this position andMr. Abeysuriya, P. C., himself submitted that Articles 17 and126 vest the Supreme Court with the exclusive jurisdiction tohear and determine any question relating to infringements offundamental rights.
As we have seen, the three Petitioners in the threeapplications before us have in no way been prevented fromapplying to this Court, or from appearing and prosecutingtheir fundamental rights applications. They have themselvesbeen present in Court; have been adequately represented byCounsel (one of them being a President’s Counsel), and haveparticipated fully in the proceedings throughout.
In the circumstances, I cannot see how they can nowcomplain that they have been prevented from either presentingtheir claims or from prosecuting them.
In any event, although the Petitioners claim a violation oftheir fundamental rights under Article 17 of the Constitution,no material was made available, as required by Rule 44 of theSupreme Court Rules of 1990, as to what exactly the allegedviolation was, or who the alleged violator was, or what thenature of the executive or administrative action was, whichcaused it.
For the above reasons, I have no hesitation in holdingthat there is no substance or merit in this particular complaintof the three Petitioners.
CONCLUSIONIt must be emphasized that in all three of the instantfundamental rights applications, the Petitioners do not allegethat the 1st Respondent was guilty of any violation of any oftheir fundamental rights. On the contrary, the only allegationmade by all the Petitioners is that it was the President whohas violated their fundamental rights by her executive or
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administrative act of appointing the 1SI Respondent as ChiefJustice.
However, as set out above, the Constitution itself givesthe President immunity under Article 35(1) thereof, andtherefore she cannot be brought before Court and called uponto answer for her actions. Neither, in the context of the factsin these applications, can her act of appointing the 1stRespondent as Chief Justice be questioned in theseproceedings. Further, under Article 35(3), the Attorney-Generalcannot represent her in these cases either. Therefore, underthe law as it stands, we shall never know the why and thewherefore of this appointment because it is only the Presidentherself who knows the answer to that question. At the sametime, until that is known, one cannot fault the President inany way, for the simple reason that she may well be possessedof good and ample reasons for having appointed the Is'Respondent to the post of Chief Justice.
In any event, assuming, but not conceding that we cando so, even if this Court holds that the President violated thefundamental rights of the Petitioners, even then it will not, byitself, have the effect of removing the Chief Justice from hispost. He would still remain Chief Justice. The reason is thatthe removal of the Chief Justice can be done in one way only,and that too, only under and in terms of Articles 107(2) and(3) of the Constitution, because the Constitution itself saysand the decided cases cited above confirm, that that is theonly way in which the Chief Justice can be removed.
Therefore, however much the Petitioners may desire it,this Court, cannot go beyond its clear duty of proper andlawful construction of the provisions of the Constitution, tostretch the elasticity of its language beyond permissible limitsunder the guise of judicial interpretation, in order to accedeto the request of the Petitioners to add yet another method ofremoval from office of a Judge of the Supreme Court or Courtof Appeal, including the Chief Justice, lest it be held to be“a usurpation of the function which under the Constitution
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of this country, is vested in the Legislature to the exclusion ofthe Courts. ” Per Lord Diplock in Jones v. Wrotham Park EstatesLtd!91 Therefore, the appeal by the Petitioners to' add anothermethod of removal of Superior Court Judges must be madenot to this Court, but to Parliament.
To reiterate, what the Petitioners are asking this Court todo is, in effect, to amend the Constitution by judicial action.This request we must unhesitatingly decline.
This leads to a question of importance, and that is whetherfiling an application for alleged violation of fundamental rightswould be the “appropriate proceedings” for achieving theobjective of the Petitioners., viz., removal from office of theChief Justice? My answer would be a laconic “No”, for as setout above, the only “appropriate proceedings” for this purpose,would be those under Articles 107(2) and (3) of theConstitution. If any individual can challenge the President’sappointment of the Chief Justice or any Judge of the SuperiorCourts by way of any application for alleged violations offundamental rights, then Article 35 will have no meaning.One cannot invoke the limited fundamental rights jurisdictionto achieve a purpose not contemplated therein. The Petitionersare therefore seeking reliefs which are not available withinthe ambit of, and within the special jurisdiction of the limitedfundamental rights jurisdiction as set out in the Constitutionitself; and as the Attorney-General rightly said, this Courtwould itself be guilty of an unconstitutional act if it were togrant the reliefs and declarations prayed for by the Petitioners.I would hold that this Court, as set out above, is powerless togrant the reliefs and declarations prayed for by the threePetitioners in these proceedings.
The applications are misconceived, and relief is clearlynot available in these proceedings.
I need hardly stress that our Constitution is theparamount law of the land, and that this Court has a sacredduty and a solemn obligation to uphold the Constitution. We
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would therefore be failing in our duty of upholding theConstitution, and thus the Rule of Law, if we were to accedeto the request of the Petitioners and grant the reliefs prayedfor, without being clothed with the necessary jurisdictiontherefor. To act thus without jurisdiction would be a clearviolation of the Constitution itself. On the other hand, if thisCourt is to act strictly within the terms of, and intra vires theConstitution, us indeed learned Counsel for the Petitionersurged us to, then the way we have in fact acted is preciselythe way we must, viz., in holding that this Court has nojurisdiction to remove the Chief Justice from office.
Whilst considering the matters before us objectively andimpersonally, and strictly in accordance with the law, 1 havegiven my anxious and very careful consideration to the threepreliminary objections raised by the Attorney-General, andalso to the helpful submissions made by learned Counsel forall the Petitioners in that connection. I have also been at painsto analyse the relevant law and its applicability to the facts,and upon a consideration of the whole, for the reasons setout above, I would uphold the three preliminary objectionsraised by the Attorney-General, which objections apply to allthree applications.
For the reasons set out above in detail in this order, takinginto consideration all the facts and circumstances, inasmuchas it would clearly be futile to proceed any further in any ofthese three applications, I refuse leave to proceed in each ofthe S. C. Applications 898/99(F/R), 901/99(F/R) and902/99(F/R) with costs.
P.R.P. PERERA, J.Iagree.SHIRAN1BANDARANAYAKE J. – I agree.D.P.S. GUNASEKERA, J.Iagree.AMEER ISMAIL, J.-1 agree.Leave to proceed refused.