By: Dharshan Weerasekera, 29th January 2019

Author’s note: I am publishing the present paper exercising my fundamental rights to freedom of thought and conscience under Article 10 of the Constitution and also the right to freedom of speech and expression under Article 14(1) (a) of the Constitution, and in the public interest, cognizant also of the fact that in order for members of the public to exercise their rights to freedom of thought and conscience they need information on which to form the relevant opinions. The Supreme Court‘s judgment of December 2018 on the dissolution of Parliament introduces certain ideas and doctrines in respect of Article 12(1) of the Constitution, based on the arguments in a series of well-known Indian cases associated with Justice Bhagawathie, an eminent judge of the Indian Supreme Court during the 1970‘s. However, according to eminent commentators of the Indian Constitution, commentators such as H.M. Seervai, the said ideas of justice Bhagawathie have subsequently been rejected or modified by the Indian court itself and otherwise found to be ‗untenable.‘ So, it is essential that there be a vibrant and substantial discussion among Sri Lankan lawyers, legal scholars, students and members of the public about the probity and wisdom of introducing Justice Bhagawathi‘s ideas to the constitutional jurisprudence of this country at this stage. To the best of my knowledge, and I confess I have only checked Google, there are no scholarly discussions of the SC judgment of 13th December 2018. The present paper is therefore forwarded in the hopes of generating such a discussion, and also to place on record the related issues so that members of the public can urge the relevant officials to take necessary action. As the famous legal maxim says: ‗Ignorantia facti excusat; ignorantia juris non excusat‘ (‗Ignorance of fact excuses; ignorance of law does not‘)]
Introduction.

Introduction

1. On 7th December 2018, Ms. Gamlath Anuradha Nirodhini Yahampath (hereinafter ‗Petitioner‘) appearing through her attorneys Ms. Dharshani Lahandapura and Mr. Dharshan Weerasekera submitted an intervenient petition (Annex 1) against a fundamental rights petition (SC/FR/352/2018) filed by Mr. Kabir Hashim and Mr. Akila Viraj Kariavasam, two Members of Parliament, against the dissolution of Parliament by the President under gazette no. 2096/20 of 9th November 2018.

2. The aforesaid petition was one of a series of such petitions filed by Members of Parliament complaining that the said dissolution had violated their right to the equal protection of the law under Article 12(1) of the Constitution by depriving them of the chance to complete a full term of office according to the provisions of Article 70(1) of the Constitution as amended by the 19th Amendment.

3. The Petitioner was one of a number of intervenient petitioners who made submissions in the aforesaid matter, but to the best of the Petitioner’s knowledge she is the only one to raise the argument in respect of jurisdiction that is the subject of the presentpetition. The petitioners in all of the aforesaid applications were granted leave to proceed (Annex 2) on the basis of a presumed violation of Article 12(1).

4. The Petitioner‘s argument in her original intervenient petition was based on a single point of law, namely, that the court did not have the jurisdiction under Articles 12(1) and 126(1) of the Constitution to grant the relief sought by the petitioners.

5. The Petitioner pointed out that, according to the tradition of interpretation associated with Article 12(1) going back to the Full Bench judgment in the Elmore Perera case (Annex 3) in order for a petitioner to avail himself of Article 12(1) he must first show that he has been treated differently or unequally in comparison with his peers in respect of the executive or administrative act against which he is complaining.

6. Since the dissolution of Parliament had affected all 225 Members of Parliament equally—i.e. they had all in effect lost their jobs—the petitioners being just two Members of Parliament could not claim that they were treated unequally in comparison with their peers, and hence had no right to invoke Article 12(1).

7. In the court‘s 88-page final judgment (Annex 4), the court has carefully considered each of the arguments presented by the intervenient petitioners, and countered them; the court has referred to or dealt with the Petitioner‘s argument on pages 26, 59 and 85-87 of the judgment.

8. In its rebuttal to the point raised by the Petitioner, the court states that the jurisprudence on Article 12(1) has evolved since Elmore Perera and that today it is possible for a petitioner to avail himself of the protection of Article 12(1) without establishing that he has been subjected to discrimination but purely on the basis that the impugned action of the State is arbitrary, unreasonable, ultra vires, unconstitutional, and/or illegal.

9. The essence of the court‘s argument is captured in the following passages. First:
The final point the Court must address is the submission made with regard to the basis of relief. Counsel for one of the intervenient petitioners submitted that the Petitioners are not entitled to the relief claimed as they have failed to demonstrate a positive act of „unequal treatment‟ among those who are equally circumstanced to the present instant. However, our jurisprudence under Article 12(1) has evolved since the doctrine of „classification.‟
“[….] notwithstanding the Full bench decision in Elmore Perera’s case, the Supreme Court has abandoned the classification theory in granting relief for infringement of right to equality. Relief is now freely granted in respect of arbitrary, and mala fide executive action in he exercise of the Court’s jurisdiction under Article 126 of the Constitution” (Hon. Justice Kulatunga PC., “Right to Equality- National Application of Human Rights” [1999] BALJ, Vol VIII, Part I, page 8)

10. SecondIf this Court were to deny relief merely on the basis that the Petitioners have failed to establish „unequal treatment,‟ we would in fact be inviting the State to „equally violate the law.‟ It would be blasphemous and would strike at the very heart of Article 4(d) which mandates every organ of the State to „respect, secure and advance the fundamental rights recognized by the Constitution.‟ Rule of Law dictates that every act that is not sanctified by the law and every act that violates the law be struck down as illegal. It does not require positive discrimination or unequal treatment. An act that is prohibited by the law receives no legitimacy merely because it does not discriminate between people.”

11. The author contends that, the court has made a series of grievous and fundamental errors both of reasoning as well as law in its sentiments expressed in the passages quoted in paragraphs 10 and 11 above.

12. The author‘s argument, which shall be explained in more detail later, is briefly as follows:

13. In regard to the sentiments expressed in the passages quoted in paragraph 9 hereinbefore the author concedes that, jurisprudence on Article 12(1) has indeed evolved, however, the nature and extent of such evolution is as follows:
a) Our courts now grant relief under Article 12(1) if the petitioner can establish that the impugned State action at issue is arbitrary, unreasonable or violative of his Natural Justice rights. The petitioner no longer has to show/aver unequal treatment/discrimination in order to invoke Article 12(1).
b) However, the aforesaid arbitrariness, unreasonableness and/or violation of Natural Justice must be specific to the petitioner. There is absolutely no evidence to suggest that our courts have evolved jurisprudence on Article 12(1) to the point where they will grant relief for State action that may be arbitrary, unreasonable and/or violative of Natural Justice rights but which affect not just the petitioner but everyone similarly circumstanced as himself.
c) Also, there is absolutely no evidence to suggest that jurisprudence on Article 12(1) has evolved to the point where relief under that Article is granted for State action that is purportedly per se unconstitutional, ultra vires, and or illegal. (It should be noted that, Writ jurisdiction has traditionally been the way that people have challenged ultra vires and/or illegal acts of the State.)

14. In support of the averments in paragraph 13 above the author will analyze each of the authorities that the court has cited in its rebuttal to the Petitioner‘s original argument.

15. To turn to the sentiments expressed in the passage quoted in paragraph 10 hereinbefore, the author contends that the court has committed a rudimentary fallacy of argument, a fallacy that in common parlance is often termed ‗False Choice,‘ that is, positing two options as the only ones available in a given situation when in fact there are many other alternatives and options available.

16. The court proclaims that, ―Rule of Law dictates that every act that is not sanctioned by the law and every act that violates the law be struck down as illegal.‖

17. Few will disagree with the court‘s lofty sentiment, however, it is also a fact that Article 12(1) is not the only means that the courts have to hold the State accountable if and when it transgresses the law.

18. For instance, as pointed out earlier, there is an extensive body of law—Prerogative Writs to be precise—that has evolved over the years specifically in order to permit people to challenge the actions of the State where they consider such actions to be illegal, ultra vires, arbitrary, and so on.

19. Therefore, the court in its judgment of 13th December 2018 has presumed that Article 12(1) is the only means that our courts have to uphold and advance the Rule of Law, a presumption that is obviously wrong.

20. To fully appreciate the implications of what the court has done with its judgment of 13th December 2018 it is necessary to consider the following matters as well.
a) There is no appeal from the judgment in a fundamental rights case.
b) Therefore, the losing party whether it is the petitioner or the State must live with the said judgment.
c) If petitioners are permitted to invoke 12(1) without showing unequal treatment, but merely on the assertion of a purported illegality or ultra vires nature of an action of the State, then any citizen, by filing a case under Article 12(1) against any action of the State that the petitioner considers illegal, can potentially make the State grind to a halt either by getting interim relief, or worse, by getting final relief without a possibility of appeal for the State.
d) Therefore, what the court has done in the judgment of 13th December is to establish a new tradition of interpretation for Article 12(1) where the court will adjudicate on the claim by a petitioner of the putative violation of his right to equal protection of the law without reference to the issue of equality.

21. No one will deny that, the courts have a solemn duty to uphold and advance the Rule of Law.

22. However, the Rule of Law requires that the courts are themselves subject to the law, which is to say, the Constitution along with judicial precedents. It should be noted that, in a Common Law system such as ours, judicial precedents are especially important, because, as the famous legal maxim states, ‗An interpretation of the law acquires the force of law.‘

23. In regard to the above, it should be noted that one of the fundamental principles of stare decisis followed by our courts when a ruling of a Full Bench of the Supreme Court is overturned or overruled by a subsequent Full Bench of the Supreme Court is that such a thing is only done if the previous ruling has been shown to be per incuriam. As Justice H. W. Tambiah , universally regarded as one of the most erudite of judges to sit on the Supreme Court states in his seminal work, Principles of Ceylon Law:
A Full Bench is bound by an earlier decision of another Full Bench, unless the decision is made per incuriam (Suppammal v. Thevar, 1950, 52 NLR 266; also dictum of Laurie J. In Raheem v. Yoosuf, where it was doubted whether a collective court can overrule another collective court).”1

24. The imperative to uphold and advance the Rule of Law is not a license for the courts to take an ‗end justifies the means‘ approach to interpretation.

25. To the best of the author‘s knowledge, there is no evidence of the courts of Sri Lanka especially the Supreme Court ever embracing or endorsing such an approach at any time during a history spanning nearly two hundred years going back to the Charter of Justice of 1833.

26. To digress a moment, it is pertinent to recall the following observation by Chief Justice S. Sharvananda in his authoritative book, Fundamental Rights In Sri Lanka: A Commentary, about the general approach that he considered the court should take when adjudicating on fundamental rights. (It should be noted that, Justice Sharvavanda, perhaps more than any other person, was instrumental in shaping the key concepts used in interpreting fundamental rights in our country, especially in respect of Article 12(1).) On page 4 of the introduction to the aforesaid book, he says:
In our Constitutional Jurisprudence the scope for judicial activism is limited. The role of the Supreme Court is interpretive and not creative so as to expand the ambit of fundamental rights. Under the guise of giving a new dimension, words cannot be changed by Courts to bear a new meaning or connotation. Courts are inhibited from assuming a legislative role. The court must not forget that its function is to interpret the plain provisions of Chapter III and that the interpretation must depend on the context and setting of the particular provision which has to be interpreted.”(2)

27. In sum, the author contends that by the judgment of 13th December 2018 the court has:
a) Decimated the tradition of stare decisis that has guided our courts for nearly two hundred years,
b) Under the pretext of advancing a purported ‗New Doctrine‘ of interpretation for Article 12(1) enabled the court to be a direct check on the Executive without the Executive having a means of appeal.
c) Obliterated the traditional distinction between Administrative Law and Fundamental Rights Law and thereby potentially violated the writ jurisdiction conferred on the Court of Appeal by Article 140 of the Constitution.

1 Hon. Justice H. W. Tambiah, Principles of Ceylon Law, H. W. Cave and Company, Colombo, 1968, page 94

2 Hon. Justice S. Sharvananda, Fundamental Rights in Sri Lanka: A Commentary, Arnold‘s International Printing, Colombo, 1993, page 4

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