HUMAN RIGHTS: THE SRI LANKAN EXPERIENCE

HUMAN RIGHTS:
THE SRI LANKAN EXPERIENCE
1947 – 1981

A thesis submitted to the University of London as an internal student of the School of Oriental
and African Studies for the Degree of Doctor of Philosophy.
September 1983.
Nihal Mahendra Sudrikku Jayawickrama
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ABSTRACT
This is an analysis of the attempts made in Sri Lanka to
provide constitutional protection for certain civil and political
rights. The 1972 and 1978 Republican Constitutions, each of which
contained a chapter on Fundamental Rights and Freedoms, is
examined against the background of the less idealistic Order in
Council of 1946 which contained the first Constitution of Independent Ceylon. The latter, which served as the basis for government
for nearly twenty-five years, was drafted in the mid ‘Forties, at
a time when Bills of Rights-consciousness was hardly evident in the
British Empire and still less among the elitist leadership thrown
up by colonial rule in Ceylon.
The thesis is structured into eight chapters. After an
introductory survey in Chapter I of the “foundations of freedom”
which were evident at Independence, the attempts made thereafter
at formulating a Bill of Rights and the measure of success that
attended, or eluded, these attempts are examined in Chapter II.
The actual content of the protected rights in the 1978 Constitution,
having regard to the overriding effect of “existing law”, is examined
in Chapter III. Since the effective enforcement of fundamental
rights is dependent upon the existence of an independent court, the
practical effectiveness of the legal safeguards designed to secure
judicial independence are assessed in Chapter IV. The Sri Lankan
experience of ex post facto and pre-enactment review of legislation
is the subject of Chapter V. In Chapter VI, the effectiveness of
the traditional as well as of the special remedies available at
different times for the review of executive action is examined.
Chapter VII looks at the impact on human rights of states of
emergency which have existed in Sri Lanka for nearly half its
independent life. The final chapter applies the experience of Sri
Lanka to the problems involved in drafting and enforcing a Bill of
Rights.
CONTENTS
P R E F A C E ………………………………………vii
PROLOGUE …………………………………. 1
Chapter
I. THE FOUNDATIONS OF FREEDOM . . . 5
A National Consciousness 9
A Legal Inheritance 14
The Constitutional Experience 23
Nationalism and Trade Unionism 28
Political Organisations 31
An Emerging Elite 34
A National Press 38
II. THE CONSTITUTIONAL PROTECTION OF HUMAN RIGHTS . . 41
The 1946 Constitution 41
The Ministers’ Scheme 45
The Soulbury Report 46
The Protected Rights 47
The Constitution in Operation 50
Moves to Amend the Constitution 55
The Need for a Bill of Rights 67
The Response of Political Parties to
the Demand for a Bill of Rights 74
The 1972 Constitution 78
The Constituent Assembly 79
The Protected Rights 90
The Inadequately Protected Rights 93
The Quitted Rights 105
Limitations on the Exercise and Operation
of the Fundamental Rights 109
The Enforcement of Fundamental Rights 113
The 1978 Constitution 132
The Select Committee 133
The Protected Rights 142
The Inadequately Protected Rights 143
The Quitted Rights 144
Limitations on the Exercise and Operation
of the Fundamental Rights 149
The Enforcement of Fundamental Rights 152
III. THE CONTENT OF THE FUNDAMENTAL RIGHTS . . . 153
The Rights 154
The Restrictions 180
iii
IV. THE C O U R T ……………………………… 190
The Regular Courts 190
Power of Appointment 194
Tenure 208
Conditions of Service 216
Extra-Judicial Activity 220
The Constitutional Court 231
Location 232
Remuneration 233
Composition 234
Chairman 235
The First Reference 241
Dissolution of the Court 256
Reconstitution of the Court 260
An Assessment 262
V. JUDICIAL REVIEW OF LEGISLATIVE ACTION . . 267
Ex Post Facto Review of Legislation 268
General Observations 268
Enforcement of Fundamental Rights 277
An Assessment 304
Review of Bills 309
General Observations 309
Enforcement of Fundamental Rights 329
An Assessment 333
VI. JUDICIAL REVIEW OF EXECUTIVE ACTION . . 338
Traditional Remedies 338
The Nature and Scope of the Traditional
Remedies 339
The Erosion of Traditional Remedies 356
An Assessment 374
The Special Remedy 376
The Nature and Scope of the Special
Remedy 377
Exclusion of the Special Remedy 386
Application of the Special Remedy 388
An Assessment 398
VII. HUMAN RIGHTS UNDER A STATE OF EMERGENCY . . 401
History of Public Security Legislation 402
Concept of a State of Public Emergency 411
Justiciability 411
Definition 422
Emergency Regulations 466
Interpretation of Regulations 467
Validity of Regulations 473
Regulations and Orders Inconsistent with
Fundamental Rights 475
An Assessment 495
iv
VIII. A BILL OF R I G H T S ……………………… 499
Content, Form and Scope 500
Constitutional Status 503
Interpretation, Enforcement and
Implementation 504
Derogation 505
International Enforcement Machinery 506
International Covenant on Civil and
Political Rights 506
Commonwealth Commission of Human Rights 507
Asian Convention on Human Rights 508
APPENDICES 510
ABBREVIATIONS 517
SOURCES C O N S U L T E D………………………………520
CASES 537
STATUTES 547
HUMAN RIGHTS I N S T R U M E N T S ……………………….553
v
TABLES

Total Population, 1971 … 10
Religions, 1971 … 11
English Educated in 1963 … 12
Castes Among the Sinhalese … 13
Castes Among the Tamils … 13
Gainfully Employed Population by Occupations
1966 … 36
Number of Ceylonese Males in Select Occupations … 37
Communal Distribution in the State Council, 1936 … 43
The 1947 General Election Result … 50
The 1952 General Election Result … 52
The 1956 General Eelction Result … 54
The 1960 (March) General Election Result … 60
The 1960 (July) General Election Result … 61
The 1965 General Election Result … 63
The 1970 General Election Result … 78
The 1977 General Election Result … 132
Exemptions and Restrictions on the Exercise
and Operation of Fundamental Rights in the
1978 Constitution … 149
Re-Constitution of the Superior Courts in 1974 … 212
Re-Constitution of the Superior Courts in 1978 … 215
Comparative Salary Scales, 1959 … 217
Comparative Salary Scales, 1981 … 217
Statutes Impugned under the 1946 Constitution … 269
Total Population, 1946 … 280
Impact of Indian Tamil Vote at 1947 General
Election … 283
Exclusion Clauses Used by the National State
Assembly … 371
States of Emergency, 1947-1981 … 401
Use of Emergency Regulations for Non-Emergency
Purposes … 439
Puisne Justices of the Supreme Court, 1948-1973 … 515
vi
PREFACE
In April 1978, I began work at King’s College London, under
the supervision of Prof.James Fawcett, on a research project on
International Human Rights Law. Three months later, while on a
brief visit home, my passport was impounded by the Sri Lanka
Government, and I remained grounded in Colombo until September of
the following year. In October 1979, thanks to the kindness of
the Department of Law, School of Oriental and African Studies,
London, I was able to resume my research project. The results of
the first part of it, which involved researching the national,
regional and international jurisprudence on human rights, has now
been published.^ The second part was a country study of a bill of
rights in operation. The country chosen was my own, and my
examination of the Sri Lankan experience constitutes this thesis.
I have attempted to examine the effectiveness of the
procedures contained in Sri Lankan law for the enforcement of
civil and political rights which two recent Constitutions have
sought to guarantee. Although much has been written in the past
on Sri Lanka’s constitutional evolution, and her Independence and
Republican Constitutions have been examined and analysed by both
lawyers and political scientists, the machinery which these
Constitutions expressly provided or had in contemplation for
securing fundamental rights have not been subjected to such scrutiny.
The Sri Lankan experience in this regard has much to offer to those
who still debate whether or not human rights need any . special
protection under the law, and what form such protection, if so
desired, should take.
To understand the events of the period under review and the
attitudes of people who often determined the course of those
events, I have relied, not only on published historical matter,
but also on parliamentary proceedings and contemporaneous reports
in newspapers and journals, supplemented at times by my own notes
See Paul Sieghart, The International Law of Human Rights
(Oxford: Clarendon Press, 1983).
vii
and tape recordings. The analysis of the role of the Judiciary in
the enforcement of protected rights has been based on judgments of
the Supreme Court and the Constitutional Court.^ In dealing with
the period 1970-1977, when I was associated with the Government in
the capacity of Permanent Secretary to the Ministry of Justice, I
have referred to hitherto unpublished official correspondence and
2
other documentation, copies of which are in my possession. If I
have dealt with any aspect of a subject in greater length than
others, it is either because that aspect has not previously been
examined adequately, or because I have felt that I was in a position
to make a special contribution by reason of my own knowledge and
experience of it. I have throughout attempted to evaluate Sri
Lanka’s needs, expectations and performance in respect of civil and
political rights against the standards established by international
instruments and their interpretation and application by international and regional tribunals. If, in so doing, I appear to have
been unduly demanding, I trust that it would be appreciated that in
the area of human rights, there can be no half-way house: human
rights are not only fundamental; they are also inalienable.
The Supreme Court judgments were reported regularly until
about 1974 when publication was interrupted and delayed by frequent
strike action at the Government Press, the death of the longserving editor, and the decision to publish each judgment not only
in the .English language but also with a Sinhala translation of it.
In 1979/80, the reporting of these judgments appears to have
virtually ceased. I am grateful to several friends and colleagues
in Colombo who made available to me copies of all the relevant
unreported judgments. I am also grateful to Mr.O.L.de Kretser,
retired Puisne Justice, who gave me a copy of his District Court
judgment in the Kodeeswaran Case (1964).
Following the impounding of my passport in 1978, a Special
Presidential Commission of Inquiry appointed by the present Government to probe the political activities of the previous Government,
subjected my official career to a searching inquiry. In so doing,
the Commission provided me with access to nearly all the relevant
files of that period and permitted me to take copies of whatever
documents I desired. Although I did not then realise it, copies
of several of these documents have proved as invaluable in my
present study as they were for the purpose of my defence.
This study would not have been possible but for a generous
research fellowship awarded to me by the Leverhulme Trust. To the
Trustees, and to Mr.Paul Sieghart who initiated it and then helped
to revive it after my extended “visit” home, I am most grateful.
I am also grateful to five institutions in London which provided
me with all the facilities for my research: the Institute of Advanced
Legal Studies, the School of Oriental and African Studies, the
British Institute of Human Rights, the Institute of Commonwealth
Studies, and the Legal Division of the Commonwealth Secretariat.
To Prof. James S.Read, Mr. Leslie Wolf-Phillips and Dr. Peter SI inn,
who let me attend their Comparative Constitutional Law Seminar, and
Mr. Reg. Austin who allowed me to participate in his Human Rights
Seminar, I am grateful for many hours of stimulating discussion
which helped me to acquire a perspective of the subject I was
researching. For his direction, encouragement and kindness, at all
times and in ample measure, I am deeply indebted to my supervisor,
Dr. Peter Slinn.
As four years of research draw to an end, I remember with
gratitude that but for the efforts of three dedicated members of
my own profession, Mr.S.Nadesan,Q.C., Mr.J.C.T.Kotelawela, and
Mr.Faiz Mustafa, who devoted their time, energy and experience,
free of charge, from day to day, for nearly eight months, to defend
me before the Special Presidential Commission of Inquiry and thereby,
to secure the return of my passport, I would not have been able
even to begin it. Through it all, my wife Sarojini, and my two
little daughters, Nishana and Sharanya, have been compelled to
lead a nomadic existence and they will, no doubt, be most comforted
to know that my labour of love has now reached its completion.
Nihal Jayawickrama
London,
September 1983.
PROLOGUE
Q: Does an Order, Lord, that is complete carry out an
act that should be carried out in the presence of
an accused monk if he is absent ? Lord, is that a
legally valid act ?
A: Whatever Order, Upali, that is complete carries out
an act that should be carried out in the presence
of an accused monk. If he is absent, it thus comes
to be not a legally valid act, not a disciplinarily
valid act, and thus the Order comes to be one that
goes too far.
Q: Does an Order, Lord, that is complete carry out an
act that should be carried out by the interrogation
of an accused monk if there is no interrogation ?
A: Whatever Order, Upali, that is complete carries out
an act which should be carried out on the interrogation of an accused monk. If there is no interrogation, it thus comes to be not a legally valid act,
not a disciplinarily valid act, and thus the Order
comes to be one that goes too far. 1
Thus was enunciated, in this conversation between the Buddha and
his disciple, the Venerable Upali, six centuries before the birth
of Christ, the rule of natural justice.
In the course of a ministry of forty-five years, the Buddha
expounded a philosophy of life based upon tolerance and compassion
in which the human mind was the principal element:
Mind is the forerunner of all evil states. Mind is
chief; mind-made are they. If one speaks or acts with
wicked mind, because of that, suffering follows one, «
even as the wheel follows the hoof of the draught-ox.
Mind is the forerunner of all good states. Mind is
chief; mind-made are they. If one speaks or acts with
pure mind, because of that, happiness follows one,
even as one’s shadow that never l e a v e s . ^
These poetic utterances of the Buddha, recorded three months after
His passing away, encompassed a wide variety of subjects. For
I.B.Homer, trans., The Book of the Discipline (VinayaPitaka), Vol.IV: Mahavagga or The Great Division IX (London, Luzac
Sc Co.Ltd, 1962), pp.466-468.
Narada Thero, trans., The Dhammapada (Colombo Apothecaries’
Co. Ltd, 1972), v.1.
Ibid., v.2.
2
instance, the need for an impartial tribunal:
He is not thereby just because he hastily arbitrates
cases. The wise man should investigate both right and
wrong;!
the rejection of penalties that cause unnecessary suffering:
All tremble at the rod. Life is dear to all. Comparing others with oneself, one should neither strike
nor cause to strike;2
the sanctity of life:
If a person destroys life, is a hunter, besmears his
hand with blood, is engaged in killing and wounding,
and is not merciful towards living beings, he, as a
result of his killing, when born amongst mankind, will
be short-lived;3
the futility of victory at war:
A man may spoil another, just so far
As it may serve his ends, but when he’s spoiled
By others he, despoiled, spoils yet again.
So long as evil’s fruits is not matured,
The fool doth fancy ‘now’s the hour, the chance !’
But when the deed bears fruit, he fareth ill.
The slayer gets a slayer in his turn;
The conqueror gets one who conquers him;
The abuser wins abuse, the annoyer, fret. 1
Thus by the evolution of the deed. ^
A man who spoils is spoiled in his turn;
the importance of ahimsa or non violence:
Hatreds do not cease through hatred:
through love alone they c e a s e ; 3
the recognition of the supremacy of man:
By oneself, indeed, is evil done;
by oneself is one defiled.
By oneself is evil left undone;
by oneself, indeed, is one purified.
Purity and impurity depend on oneself.
No one purifies another;6
the equality of women:
A woman child, 0 Lord of men, may prove
Even better offspring than a male;’
Ibid., v.256.
Ibid., v.130.
Narada Maha Thera, The Buddha and His Teachings (Colombo:
Associated Newspapers of Ceylon Ltd, 1972), p.309.
Ibid., p.201.
Narada, The Dhamnapada, v.5.
6 . Ibid., v .165.
Narada, The Buddha, p.313.
3
the repudiation of slavery and the caste system:
Birth makes no brahmin, nor non-brahmin makes,
‘Tis life and doing that mould the brahmin true.
Their lives mould farmers, tradesmen, merchants, serfs.
Their lives mould robbers, soldiers, chaplains, kings
the reciprocal duties of employers and employees:
A master should minister to servants and employees by
i. assigning them work according to their strength,
ii. supplying them with food and wages,
iii. tending them in sickness,
iv. sharing with them extraordinary delicacies, and
v. relieving them at times.
The servants and employees, who are thus ministered
to by their master, should:
i. rise before him,
ii. go to sleep after him,
iii. take only what is given,
iv. perform their duties satisfactorily, and
v. spread his good name and fame;^
the relevance of the welfare state:
Planters of groves and fruitful trees
And they who build causeways and dams
And wells construct, and watering sheds
And (to the homeless) shelter give –
Of such as these by day and night
For ever doth the merit grow
In righteousness and virtue might ^
Such folk from earth to Nirvana go;
and the freedom of thought, belief and expression:
Do not accept anything on mere hearsay (i.e. thinking
that thus have we heard it from a long time). Do not
accept anything by mere tradition (i.e. thinking that
it has thus been handed down through many generations).
Do not accept anything on account of rumours (i.e. by
believing what others say without any investigation).
Do not accept anything just because it accords with your
scriptures. Do not accept anything by mere supposition.
Do not accept anything by mere inference. Do not accept
anything by merely considering the appearances. Do not
accept anything merely because it agrees with your preconceived notions. Do not accept anything merely
because it seems acceptable (i.e. should be accepted).
Do not accept anything thinking that the ascetic is
respected by us (and therefore it is right to accept
his word).
But when you know for yourselves – these things are
immoral, these things are blameworthy, these things
are censured by the wise, these things when performed
and undertaken conduce to ruin and sorrow – then indeed
do you reject them.
Ibid., p.309.
Ibid., p.588.
Mrs.Rhys David, trans., The Book of Kindred Sayings (Sanyutta
Nikaya) (London: OUP, 1917).
4
When you know for yourselves – these things are
moral, these things are blameless, these things are
praised by the wise, these things when performed
and undertaken conduce to well-being and happiness

then do you live and act accordingly.!
In Sri Lanka, the introduction of Buddhism is inextricably
linked with the founding of the Sinhalese race. For nearly twentyfive centuries, the Sri Lankan outlook on life has been conditioned
by exposure to the humanising influence of Buddhist philosophy. In
almost every village there is a Buddhist temple, and in nearly
every home there is an image of the Enlightened One who, through
renunciation and meditation, searched for an answer to the perennial
problem of human suffering. The concept of human rights is, therefore, not alien to Sri Lanka nor, indeed, to Asia. Many of the
rights which are today internationally recognised as fundamental
2
could well be described as a part of the traditions of the East.

Narada, The Buddha, p.284.
See Justice T.S.Fernando, “Human Rights: A Tradition of the
East”, Ceylon Daily News, 10 December 1964.
CHAPTER I
THE FOUNDATIONS OF FREEDOM
One of the most significant developments in the aftermath of
World War II was the recognition of human rights under international
law. For the first time, human rights became the concern of the
international community. The preamble to the Charter of the United
Nations expressed a determination
to reaffirm faith in fundamental human rights, in the
dignity and worth of the human person, in the equal
rights of men and women.
One of the purposes of the United Nations was declared to be the
achievement of international co-operation
in promoting and encouraging respect for human rights
and fundamental freedoms for all without distinction
as to race, sex, language or religion. 1
The States which subscribed to the Charter and became members of the
United Nations thereby pledged themselves to “take joint and separate
action” to promote “universal respect for, and observance of, human
rights for all without distinction as to race, sex, language or
r e l i g i o n ” . 2 The Charter did not contain a precise definition of
human rights. Nor did it prescribe any machinery for their
enforcement. Yet a proper legal commitment was made by each of the
original member states that it would, within its territorial
jurisdiction, observe and respect human rights. On 14 December 1955,
Ceylon accepted these obligations and was admitted to the membership
of the United Nations.
When Ceylon entered the international cornnunity, a “common
understanding” had already been reached in regard to the concept of
human rights embodied in the UN Charter. The Universal Declaration
of Human Rights (UDHR), which was proclaimed by the General
Assembly on 10 December 1948, was a “common standard of achievement
for all peoples and all nations”. It contained nearly forty rights
Art. 1(3)
Arts. 55(c), 56.
6
and freedoms whose “effective recognition and observance” was intended
to be secured by the member states through “progressive measures”.
At the first ten sessions of the General Assembly at which it was
represented, Ceylon participated in the preparation of two draft
treaties which sought to elaborate, and provide for the implementation
of, the rights and freedoms contained in the Declaration. On
16 December 1966, the representative of Ceylon voted in the General
Assembly for the adoption of the International Covenant on Economic,
Social and Cultural Rights (ICESCR) and the International Covenant
on Civil and Political Rights (ICCPR). These two instruments came
into force on 3 January and 23 March 1976 respectively. On 29 May
1980, Sri Lanka’s Foreign Minister signed the relevant documents of
accession.
Under the ICCPR, the Government of Sri Lanka agreed “to respect
and to ensure to all individuals within its territory and subject to
its jurisdiction”, and “to take the necessary steps to adopt such
legislative or other measures as may be necessary to give effect to”,
the civil and political rights recognised therein.”^ Under the ICESCR,
the Government committed itself “to take steps, individually and
through international assistance and co-operation, especially
economic and technical, to the maximum of its available resources,
with a view to achieving progressively the full realisation” of the
economic, social and cultural rights therein recognised “by all
appropriate means, including particularly the adoption of legislative
„ 2
measures .
The principal legislative method by which States seek to
secure civil and political rights within their national boundaries
is by the adoption of enforceable bills of rights. Europe gave the
lead in establishing the principle of collective enforcement when
in 1950 the European Convention for the Protection of Human Rights
3
and Fundamental Freedoms was signed at Rome. Three years later,
when the United Kingdom extended the application of ECHR to over
forty dependent territories, Ceylon no longer belonged to that
Art.2.
Art.2.
The American Convention on Human Rights (ACHR) was signed at
San Jose, Costs Rica, in 1969. In 1980, the African States Members
of the Organisation of African Unity, meeting at Nairobi, approved
the African Charter on Human Rights and Peoples’ Rights (AFCR).
7
category; on 4 February 1948, by the Ceylon Independence Act 1947 and
the Ceylon (Independence) Order in Council 1947, the Crown Colony of
Ceylon had been granted its independence. But neither of these
instruments, preceding as they did the formal proclamation of UDHR,
contained a comprehensive bill of rights. It was ten years later,
during the peak period of British decolonisation, that such a bill of
rights became a standard element in the Westminster-Whitehall export
model constitution which scores of countries emerging into statehood
were encouraged to accept and operate. Consequently, during the first
twenty-five years of independence, Ceylon had no bill of rights but
only a constitutional limitation on the exercise of legislative power,
designed to prevent Parliament from discriminating against minority
communities or religions. By the Constitution of the “Tenth Day of
the Waxing Moon in the Month of Wesak in the Year Two Thousand Five
Hundred and Fifteen of the Buddhist Era” (22 May 1972), adopted and
enacted by a constituent assembly, Ceylon declared itself the free,
sovereign and independent Republic of Sri Lanka. On 8 September 1978,
a new constitution passed by the National State Assembly rejected the
?
pure Westminster model of 1972 in favour of a presidential executive
for what became known as the Democratic Socialist Republic of Sri
Lanka. The former contained a brief chapter on “Fundamental Rights
and Freedoms”, but did not indicate how these were to be enforced.
The latter, which is now in force, contains a more elaborate
statement of fundamental rights and has vested the Supreme Court
with jurisdiction for their protection.
The existence of a bill of rights does not, however, by itself
offer a guarantee that in that country human rights would be adequately
or effectively protected; at most, it articulates aspirations. With
the decolonisation of Africa, all but one of the independence
The grant of fully responsible status within the British
Common wealth of Nations was preceded by four months of limited
self-government under the Ceylon (Constitution) Order in Council
1946 in its un-amended form.
The 1972 Constitution which prohibited the judicial review
of legislation and established a National State Assembly which was
“the supreme instrument of state power” may be regarded as a closer
model of Westminster than the 1946 Constitution under which Parliament
was a “controlled” body with a restricted legislative power.
8
constitutions contained enforceable bills of rights. But, as Professor
Read has noted, the circumstances attending the birth of African
States did not appear to be propitious for the protection of human
rights:
The new states emerged often hurriedly from authoritarian
colonialism with dominant nationalist movements but
essentially weak political systems, with -vulnerable
opposition parties and institutions like the judiciary,
the press and the professions too weak to exert effective
pressures on government, with poor and poorly-educated
populations and struggling economies – rocky soil for the
nurture of human rights, I
In nearly every respect, Ceylon offered a sharp contrast to these
African States. On the one hand, it was a relatively prosperous
country, with the highest per capita income in Asia. Its sterling
reserves were high, and in 1945 its registered unemployed was only
21,366. It had one of the smallest military budgets and one of the
most extensive social welfare programmes, absorbing 56.1 per cent of
the revenue and covering free education, a free mid-day meal for
schoolchildren, free medical facilities, free milk for expectant
mothers and growing children, and subsidised prices for rice and
flour. On the other hand, a long familiarity with the application of
English common law concepts, constitutionalism, experience of
political and social organisation and agitation as well as of the
conduct of government, a remarkably high standard of literacy, a
vibrant middle class, a national press, and a spiritual commitment
to the dignity and worth of the human person, were characteristics
that were strikingly evident on the eve of independence. In other
2
words, as the following survey suggests, the foundations of freedom
already existed.
James S.Read, “The Protection of Human Rights in Municipal
Law”, Human Rights: The Cape Town Conference, ed. C.F.Forsyth and
J.E.Schiller (Cape Town: Juta & Co.Ltd, 1979), p.156.
The expression “Foundations of Freedom” is the first-level
subheading of the work by Prof. Read cited above, as well as the
title of a work by Prof .D.V.Cowen (Cape Town: OUP, 1961)
acknowledged therein.
A National Consciousness
9
The island of Sri Lanka is approximately 25,000 square miles
in extent: about one-half the area of England and Wales and fivesixth that of Ireland. It is located slightly north of the equator
and is separated from the sub-continent of India by forty miles of
shallow water. Between its furthest points, the island is 270 miles
from north to south and 140 miles from west to east. Its principal
towns are Colombo, Galle and Trincomalee, situated on the western,
southern and eastern coasts (the latter is believed to be one of the
finest natural harbours in the world); Jaffna in the north; and
Kandy in the temperate central highlands. Its population rose from
1,167,000 in 1834 to 6,658,999 in 1946 and 12,711,143 in 1971. It
is today estimated at approximately 15,000,000.
Sri Lanka is a multi-racial, multi-religious and multilinguistic society. The numerically predominant Sinhalese, whose
livelihood depends upon the very fertile soil of the country and the
waters which surround it, are of Aryan stock and are said to be
descended from the original settlers of the island. The ancient
chronicle, the Mahavamsa,^ fixes the date of the arrival of the
first settler, a Bengali prince from North India, at 544 B.C.
Environment and history have divided the Sinhalese into the better
educated and more enterprising inhabitants of the low country and the
sheltered and orthodox Kandyans. The Tamils are the second largest
ethnic group. Of Dravidian stock, they are descended from
successive waves of invaders from the Pandyan and Chola kingdoms of
South India who, ccmmencing around 400 A.D., established their own
kingdoms in the northern and eastern parts of the island. An
assiduous and hardworking people, the Tamils soon derived sufficient
wealth from their comparatively arid homelands to be able to venture
south and entrench themselves in increasing numbers in the
professions and in the public service. The Moors are the descendants
of Arab traders from the Persian Gulf who followed the path of Vasco
da Gama and established themselves in the southern and eastern ports.
The Burghers are the survivors of the Portuguese and the Dutch who
The history of Ceylon as recorded on ola leaves by a succession
of Buddhist monks, commencing between 247 and 207 B.C.
10
ruled over parts of Sri Lanka from 1505 to 1638 and from 1639 to 1796
respectively. They are an essentially urban people who wielded
considerable influence during the British occupation from 1796 to
The Malays are of Javanese and other Indonesian and Malaysian
descent and first arrived as soldiers in the Dutch army. The very
small ethnic groups include the rich Indian merchant corrmunities of
Sindhis, Parsees and Borahs, and the few Englishmen who no longer
work on the tea plantations or in commercial undertakings, but have
opted to spend their retirement in a country which nature has treated
very kindly. In addition to these groups, there are the Indian Tamils
brought by the British from South India in the nineteenth and early
twentieth centuries as cheap labour for the coffee and tea
plantations of central Sri Lanka. This community continued to live
in isolation from the mainstream of life and created sensitive
political and social problems after independence. The most recent
population statistics (1971) give the ethnic breakdown as follows:
TABLE 1
TOTAL POPULATION 1971
Race Population Percentage
Sinhalese a 9,146,679 71.9
Tamils 1,415,567 11.1
Indian Tamils 1,195,368 9.4
Moors 853,707 6.7
Burghers 44,250 0.3
Malays 41,619 0.3
Others 13,957 0.1
Total 12,711,143 100.0
Source: Statistical Abstract of the Democratic Socialist
Republic of Sri Lanka – 1977 (Colombo: Dept, of Govt. Printing,
1979).
a. Includes low-country Sinhalese (5,445,706 or 42.8 per cent
and Kandyan Sinhalese (3,700,973 or 29.1 per cent).
There is also a microscopic aboriginal population known as “Veddhas”
who live in the backwoods of the Uva province. Historians are of
the view that they were inhabitants of Sri Lanka at the time of the
11
arrival of the Aryans. Over the years they have become culturally
assimilated into the surrounding populations and today what could
be described as the Veddha population is less than seven thousand.
They live by a form of unirrigated shifting agriculture and speak
a dialect of Sinhala.
The second distinguishing factor among the Sri Lankan
population is religion. While Buddhism predominates, as it has
done for over two thousand years, several other religions also find
many adherents in the country. Although the Sinhalese were initially
all Buddhists, many of those who lived on the coastal belt and were
thus exposed to the missionary zeal of the Portuguese, as well as
others who sought education and obtained it in schools established
by British missionaries, soon became converts to Christianity. The
Tamils are mainly Hindus except those among them who were converted
to Christianity in the American missionary schools which flourished
in their homelands. The Moors and Malays are, of course, all of the
Islamic faith, while the Burghers are either Roman Catholics or
belong to the Dutch Reformed Church. The statistical breakdown by
religions is as follows:
TABLE 2
RELIGIONS 1971
Religion Adherents Percentage
Buddhists 8,567,570 67.4
Hindus 2,239,310 17.6
Christians3 986,687 7.7
Muslims 909,941 7.1
Others 7,635 0.1
Total 12,711,143 100.0
Source: Statistical Abstract – 1977.
a. Comprises Roman Catholics (833,111 or 6.9 per cent) and
other denominations (103,576 or 0.8 per cent).
The third distinguishing factor is language. Three languages
are spoken: Sinhala, Tamil and English. Sinhala and Tamil are
identified with the two ethnic groups. The Moors and Malays
12
generally speak the predominant language of the region in which they
reside. The Burghers speak English, though many are able to make
themselves understood in Sinhala. Until 1956, English was the
language of administration, but the total English-speaking population
in that year was minimal. In 1963, when the over-five-year
population was 8,970,480 (of a total national population of approx.
10,582,000), the statistics relating to the English-educated among
them were as follows:
Among the Sinhalese and the Tamils, caste is yet another
distinguishing factor. Though the caste system is less extensive
and rigid than in India, it is still a significant factor in social
life in some parts of the country. Numerically, the largest caste
among the Sinhalese is the Goyigama which, apart from its traditional
occupation of farming, has dominated the political life of the
country during the past fifty years. The Karawa, Salagama and
Durava castes have been traditionally associated with fishing,
cinnamon-peeling and toddy-tapping respectively, but since the turn
of the century these have provided the leadership in professional
life as well as in trade, commerce and in the plantation sector.
On the other side of the street are the Vahumpura (jaggery makers),
Batgam (foot-soldiers), Hena (washers), Hunu (lime burners),
Berawa (drummers), Navandanne (goldsmiths) and the Rodiyas (gypsies).
No census of the castes has been taken in this century, but the
estimated figures in mid-1970 were:
TABLE 3
ENGLISH EDUCATED IN 1963
English only
English and Sinhala
English and Tamil
English, Sinhala and Tamil
37,321
548,266
186,041
106,518
Total 878,146
TABLE 4
CASTES AMONG THE SINHALESE
13
Goyigama … 4.5 m.
Karawa, Salagama and Durawa … 0.8 m.
Batgam and Vahumpura … 3.0 m.
Others … 0.6 m.
Source: Janice Jiggins, Caste and Family in the Politics of the
Sinhalese, 1947-1976, p.35.
The social structure of the Tamils of the northern and eastern
provinces is still based largely on the ancient caste system.
Originally, the members of each caste had obligations to perform to
one another, and corresponding to these obligations there were
reciprocal rights. The different castes included:
TABLE 5
CASTES AMONG THE TAMILS
Madapallies … bastards of royal descent
Karayars … fishermen
Chiviars … palanquin bearers
Kusavers … potters
Vannan … washermen
Kammalars … blacksmiths
Koviars … domestic servants
Thanakararars … elephant keepers
Navalars … coconut pluckers
Chetties … merchants
Kaikulurs … weavers
Vellalas … land owners.
cce: H.W.Tambiah, The Law and Customs of the Tamils of
Ceylon (Colombo: Tamil Cultural Society of Ceylon, 1954).
Despite the heterogeneous character of its society, despite
mutual fears and jealousy raised by the conflicting claims of race,
language and religion, despite the influence of nature which has also
conspired to keep the ethnic groups apart confined to their
traditional homelands, the diverse elements within the island had
14
blended sufficiently through many generations of association and
several centuries of co-existence to create what was quite distinctly
one nation. The cry for partition which reverberated across, and
tore asunder, the sub-continent of India as the colonial empire
began to be dismantled, did not produce even an echo beyond the
waters of the Palk Strait as Ceylon prepared for self-government
and independence.
A Legal Inheritance
At Independence, Ceylon’s courts applied and administered a
multiplicity of laws.’*’ Roman-Dutch law was the common or residuary
law of the country, applicable on all matters on which there was no
relevant statute and the personal laws were silent. These latter
were the Kandyan law, applicable to the Kandyan Sinhalese; Muslim
law, accepted by all who profess the Islamic faith; Thesavalamai, or
“the customs of the Malabar inhabitants of the province of Jaffna”;
and Buddhist ecclesiastical law containing rules of succession to
temples and temple lands. But by far the most comprehensive was
the large body of statute law enacted during a century and a half
of British rule. This statute law, which was of general application,
introduced the basic concepts of English cannon law, including
certain elements which today form part of international human rights
law. Of course, this law lacked the sanctity attached to an
entrenched bill of rights, in the sense that its amendment or repeal
required no special procedure or majority. Yet, much of it had
survived the vicissititudes of constitutional change and appeared
to have achieved a degree of durability and tenacity which usually
characterises the corrmon law of a country.
Right to Life
The taking of life, except in the exercise of the right of private
defence or in the execution of the lawful sentence of a competent
2
court, was a punishable offence. Sentence of death, which was
mandatory for murder, the waging of war against the Crown, the giving
For a full discussion, see L.J.M.Cooray, An Introduction to
the Legal System of Ceylon (Colombo, Lake House Investments Ltd,
1972), pp. 1-148.
Penal Code, Criminal Procedure Code.
15
of false evidence resulting in the execution of an innocent person,
and the abetment of suicide, could, however, be imposed only upon
conviction after a trial by jury before a judge of the Supreme Court,
or upon a trial-at-bar by three Supreme Court judges without a jury.^
Every such conviction was subject to an appeal to the Court of
2
Criminal Appeal. After sentence of death had been pronounced, the
presiding judge was required to make a report to the Governor,
setting out his opinion, with reasons, on whether or not the sentence
should be carried out. After considering this report, the Governor
was required to comnunicate his decision to the Supreme Court. The
Governor also had the authority to grant a pardon or to comnute a
sentence of death to a term of imprisonment, whether on a petition
from the condemned prisoner or on his own initiative. Sentence of
death could not be pronounced on or recorded against any person who
was under 16 years of age, or on any woman who was found to be
3
pregnant at the time of her conviction.
Freedom from Torture and Cruel, Inhuman or
Degrading Treatment or Punishment
The practice of proceeding by torture against any person suspected
of a crime had been abolished very early in the nineteenth century;
so also, punishments such as breaking on the wheel and mutilation.
The other Dutch requirement of a confession of guilt before sentence
of death could be legally pronounced, which in turn required a
sentence of torture for the purpose of obtaining the confession, had
4
also been abolished atihe same time. Only a confession made to a
judicial officer was admissible in evidence against an accused
person, but only if it appeared to the court not to have been caused
by any inducement, threat or promise. A confession made to a police
officer or while being in police custody was not admissible.^
Every death occuring in a police station, mental or leprosy hospital
or prison was required to be investigated by a judicial officer.
Criminal Procedure Code, S.440A.
Court of Criminal Appeal Ordinance, s.4.
Criminal Procedure Code, ss. 53, 54, 309, 328, 329.
Adoption of Reman Dutch Law Ordinance, s.4.
Evidence Ordinance, ss. 24, 25, 26.
Criminal Procedure Code, s.363.
16
A prisoner was prevented from being put under mechanical restraint
as a punishment. Normal conditions of imprisonment included
regular visits and correspondence. Prisoners were categorised and
separated, but solitary confinement was prohibited. Ill-treatment
by a jailor or subordinate prison officer was a punishable offence.’*’
Freedom from Slavery and Forced Labour
2
Slavery had been abolished in Sri Lanka in 1844. The performance
of any type of work by unconvicted prisoners except of their own
accord in order to keep themselves occupied during otherwise idle
3
hours, was prohibited.
Right to Liberty and Security of Person
A person could be deprived of his liberty only on such grounds and
in accordance with such procedure as was established by law. A
person executing a warrant of arrest was required to notify the
substance thereof to the person arrested and, if so required, to
show him the warrant. Thereafter, he was required to endorse on the
warrant the time when and the place where the arrest was made, and
to bring the person arrested before a court without unnecessary
delay. A person arrested without a warrant, unless he was released
on his own bond or on bail, was required to be produced before a
magistrate within 24 hours of the arrest. If the offence of which
a person was accused was bailable, and he was prepared to give bail,
the magistrate was required to release him on bailor, where the
magistrate thought fit, on his executing a bond without sureties.
Alternatively, the magistrate could, from time to time, authorise
the detention of such person for a term not exceeding fifteen days
in the whole.^
If a prisoner comnitted for trial before the Supreme Court
(for a non-bailable offence) was not brought to trial at the first
criminal sessions after the date of his cormitment at which he might
properly be tried (provided that 21 days had elapsed between the
date of the cornnitment and the first day of such criminal sessions)
he was entitled to be released on bail, unless good cause was shown
to the contrary or unless the trial had been postponed on his
application.^
Prisons Ordinance, ss. 48, 49, 71, 87, 88.
Abolition of Slavery Ordinance, s.2.
Prisons Ordinance, s.65.
Criminal Procedure Code, ss. 37, 39, 53, 54, 126A, 127A, 394.
Courts Ordinance, s.31.
17
Right to a Fair Trial
Every person was subject to the criminal law and had the capacity to
sue and to be sued under the ordinary law of the land. Subject only
to the procedural requirement of one month’s notice of action, a
minister or public officer was also liable to be sued in the ordinary
courts in respect of an act or omission in the exercise or purported
exercise of his official duties.^
No judge was competent to hear a case to which he was a party
or in which he was personally interested; nor could he hear an appeal
2
or review any judgment, sentence or order passed by him. No district
judge could, except with the express consent of the accused, try any
3
case which he had ccnmitted for trial as magistrate. A party to a
case was entitled to apply to the Supreme Court for the transfer, in
4
the interests of justice, of his case from one court to another.
Trial by jury had been introduced in 1812, and all criminal
trials before the Supreme Court were generally by jury before a judge.^
An accused person was entitled to elect the linguistic panel from which
the jury should be chosen for his trial , and could object to at least
two such jurors without stating the grounds therefor. Jury service
depended on the ability to speak, read and write a language and on
income, and jurors were chosen by the drawing of lots.^
Every court was required to hold its sittings in public,
except in proceedings relating to sexual offences when the court
could, in its discretion, exclude therefrom all persons other than
lawyers, witnesses and officers of court.^
Hie Evidence Ordinance provided that:
Whoever desires any court to give judgment as to any
legal right or liability dependent on the existence
of facts which he asserts, must prove that those facts
exist. 8
Applied to criminal proceedings, this section contained the rule
that an accused is presumed innocent until proved guilty according
to law. The burden of proving the commission of an offence, therefore,
rested on the prosecution.
Civil Procedure Code, s.461.
Courts Ordinance, s.89.
Criminal Procedure Code, s.18.
Ibid., s.422; Courts Ordinance, ss. 22, 23.
Ibid., s.216.
Ibid., ss. 165B, 257.
Courts Ordinance, s.85. See also Criminal Procedure Code, s.7,
Rural Courts Ordinance, s.19, Children and Young Persons Ord.,ss.18-20.
S.101.
18
An accused was furnished with the charge sheet or the indictment,
and a list of prosecution witnesses and documents. If he had been
comnitted for trial, he was entitled to receive, on payment, a copy
of the record of the proceedings of the non-summary inquiry.^- A
criminal trial on indictment did not commence until 14 days at least
had elapsed after service of the indictment on the accused. If he
was on remand, he was entitled to receive visits from, and to
2
communicate with, his legal adviser. He was also entitled, as of
3
right, to be defended by a pleader. Communications between him and
/|
his legal advisers were privileged.
All evidence in criminal trials was required to be taken in
the presence of the accused or, when his personal attendance had been
dispensed with, in the presence of his pleader. Where the evidence
of any witness had been taken in the absence of an accused whose
attendance had not been dispensed with, such evidence was required
to be read over to him in the presence of such witness, in addition
to being afforded a full opportunity of cross-examining such witness
thereon.^ An accused was entitled to cross-examine the witnesses
who had testified against him, and to obtain the attendance and
examination of witnesses on his behalf under the same conditions as
witnesses against him. There were uniform rules for the
examination, cross-examination and re-examination of witnesses.
If any evidence was given in a language not understood by the
accused, and he was present in court, it was required to be interpreted to him in open court in a language understood by him.^
An accused could not be compelled to testify on his own
behalf. A confession made to a police officer or while in police
custody (except voluntarily to a judicial officer) was inadmissible
in evidence.^
Criminal Procedure Code, S.165D.
Prisons Ordinance, s.71.
Criminal Procedure Code, s.287. But not in a Rural Court
where lawyers were not permitted: Rural Courts Ordinance, s.21.
Evidence Ordinance, ss. 126-129.
Criminal Procedure Code, s.297.
Ibid., ss. 165, 189.
Ibid., s.300.
Evidence Ordinance, s.132.
19
Juvenile offenders were tried in special courts in accordance
with a relatively informal procedure. Probation officers played an
active role in these courts, and imprisonment as a form of punishment
was required to be avoided. The publication of juvenile court
proceedings was considerably restricted.^
Every order, judgment or sentence of a trial court was subject
to an appeal to a higher court. The appeal might be on a question
of law or fact or of mixed law and fact. An appeal court generally
had the power to affirm, reverse or vary any judgment or give
directions to the trial court, or order a new trial or a further
hearing.
A person who had once been tried by a court of competent
jurisdiction for an offence and been convicted or acquitted of such
offence was not liable to be tried again for the same offence nor on
2
the same facts for any other offence.
Right to Privacy, Honour and Reputation
A search for purposes of criminal investigation could be made
only upon the authority, and production, of a warrant issued by a
3
judge, and in the presence of the occupant of the place searched.
The outer door of a dwelling house could not be forced open in order
to seize a person under civil process.^
Officers of the post office were prohibited from opening any
postal article in the course of transmission by post, except in so far
as might have been necessary for the purpose of returning the postal
article to the sender. It was also an offence for any other person
to wilfully or maliciously open any letter intended for delivery to
another. Where it was necessary to open and examine a postal
article for purposes of enforcing the customs law, due notice was
required to be given to the addressee whose presence was permitted
at such opening.”*
In regard to telegraphic messages (including telephonic
conversation), any person who, without lawful authority, intercepted
or acquainted himself with the contents of any such message or, being
Children and Young Persons 0rd.,s.2. For principles to be
observed by all courts in dealing with children and young persons,
see ss.21-26.
2.Criminal Procedure Code, ss. 330-331.
Ibid., ss. 68-79. See also Excise Ord.,s.36; Firearms Ord.,s.39.
Civil Procedure Code, s.366.
Post Office Ord.,ss.56, 74, 75. See also Penal Code, ss.164-
167; Criminal Procedure Code, s.67.
20
a public officer having official duties in connection with such
message, disclosed its contents to any person other than in
pursuance of such duties, conmitted an offence thereby.^
The publication of any imputation concerning any person,
intending to harm, or knowing or having reason to believe that such
imputation will harm, the reputation of such person, was an offence.
2
Also punishable was criminal intimidation, insult and annoyance.
The Evidence Ordinance prohibited indecent and scandalous questions
3
as well as questions intended to insult or annoy. The Teleconmunication Ordinance prescribed penalties for tendering obscene or
4
indecent messages and for causing annoyance by telephone calls;
while the Post Office Ordinance prohibited the transmission by post
of injurious, filthy or noxious articles and indecent material.^
Freedom of Thought, Conscience and Religion
Early in the nineteenth century, it was provided that “liberty of
conscience and the free exercise of religious worship” was allowed
to all persons “provided always that they quietly and peaceably enjoy
the same without offence or scandal to the Government”.^ Later, the
manifestation of religion or belief in worship, observance or
practice was protected by the Penal Code.^ The religious festivals
of the four major religions were recognised by law and celebrated as g
national holidays. Legislation also incorporated several voluntary
religious bodies and gave each of them the character of a legal
9
persona capable, inter alia, of acquiring and holding property.
The Education Ordinance provided that a pupil in a government or
assisted school should not be required to attend any instructions
in, or any worship or observance connected with, a religion which
was not the religion of his parents.^ The University of Ceylon was
Telecommunication Ord., s.33.
Penal Code, ss. 479, 483, 484, 488.
Ss. 151, 152. See also Civil Procedure Code, ss. 176, 177.
Ss. 37, 38.
Ss. 19, 20.
Adoption of Roman-Dutch Law Ordinance, s.6.
Ss. 290-292.
Holidays Ord., Second Schedule.
For a list, see N. Jayawickrama, Human Rights in Sri Lanka
(Colombo: Dept, of Govt. Printing, 1976), p.71.
S.35. The Children and Young Persons Ord., s.39, required
regard to be had to religious persuasion of person being sent to
approved or certified school.
21
declared to be open to all persons of whatever race, creed or class,
and no test of religious belief or profession was to be adopted or
imposed in order to entitle any person to be admitted as a teacher
or student. ^
Freedom of Association
The law recognised the legality of trade unions and of their normal
activities, including the promotion, organisation and financing of
strike action.^
Right to Family Life
A male who was above sixteen years of age and a female who was above
twelve years of age (or if the daughter of European or Burgher
parents, fourteen years of age) could contract a lawful marriage,
provided that neither was already married, nor within the prohibited
degrees of relationship. Every marriage was required to be
3
registered in accordance with the law. The marriage of minors
required thejrior consent of a parent or guardian, or of the court.
No suit or action lay to compel the solemnization of a marriage by
reason of any promise or contract of marriage, the seduction of the
female or any other cause. Nor would such promise, contract or
seduction vitiate any marriage which had been duly solemnized and
registered.^”
A marriage .might be dissolved by a court on the ground of
adultery subsequent to marriage, malicious desertion, or incurable
impotency at the time of marriage.^ An action for dissolution could
be instituted by either spouse. Pending the action, the wife,
whether she be plaintiff or defendant, was entitled to apply for
the payment of alimony by the husband.
A married woman was capable of acquiring, holding and
disposing of movable or immovable property, and of contracting as
if she were unmarried.^ Upon a decree for dissolution being entered,
the court was empowered, for the benefit of either spouse or of the
children, to make order for a conveyance or settlement of property
Ceylon University Ord., s.7.
Trade Unions Ord., s. 18. See also s.26 (immunity from civil
action) and s.27 (immunity in respect of tortious acts).
General Marriages Ord., ss.15-18.
Ibid., s.20.
Ibid., s.19.
Civil Procedure Code, ss. 597, 614.
Married Women’s Property Ord., s.6.
22
or for the payment of money. Questions relating to the custody,
maintenance and education of children were determined by court in
accordance with fixed principles of law.
The sanctity of the family was recognised in the following
provision of the Evidence Ordinance:
No person who is or has been married shall be compelled
to disclose any communication made to him during
marriage by any person to whom he is or has been married,
nor shall he be permitted to disclose any such communication unless the person who made it, or his representative in interest, consents, except in suits between
married persons, or proceedings in which one married
person is prosecuted for any crime committed against
the other. 1
Upon the dissolution of a marriage on the ground of the adultery of
the wife, the court could award damages against the person found to
have committed adultery with her, and also require him to pay the
2
costs of the action. In matters of succession too, the family unit
was expressly recognised. If death occured without a valid will, the
spouse and children of the deceased had priority; illegitimate
children, however, inherited only the property of their intestate
mother.^
Family life also received some recognition in the sphere of
labour law. The employment of a woman worker at any time during the
period of four weeks immediately following her confinement was
prohibited; instead, she was entitled to receive maternity benefit
4
for a period of six weeks. On an estate where Indian labour was
employed, the employer was required to provide each married labourer
with a separate room for himself and his or her spouse, and was
prohibited from compelling them to share such room with any person
other than a child of such labourer or of his or her spouse.^
Every Indian widow resident on an estate and having at least one
child below the age of ten was entitled to receive an allowance of
rice freeof charge each month from her employer.
S.112.
Civil Procedure Code, s.598.
Matromonial Rights and Inheritance Ord., s.33.
Maternity Benefits Ord., ss. 2, 3.
Estate Labour (Indian) Ord., s.24.
Minimum Wages Ord., s. 11.
23
Rights of Children
Every birth was required to be registered within 42 days of the event.
A child of whom a married woman had been pregnant at any time during
the marriage was presumed to be the legitimate offspring of the
mother and her husband of that marriage.^ The employment of children
below the age of twelve years was prohibited, while the employment
of older children was strictly regulated by statute. The law also
sought to prevent cruelty to children and to ensure that a child
received adequate food, clothing, medical aid and lodging, as well
as care, from a parent or other person legally liable to maintain,
2
or having the custody of, such child.
Right to Participate in Public Life
A British subject who was not less than 21 years of age and had
resided in an electoral district for a continuous period of six
months was entitled to be registered as an elector, provided that he
was not otherwise disqualified, if he was domiciled or permanently
3
settled in the island or could read and write a language. Voting
was by secret ballot. The law contained very strict provisions
designed to preserve the secrecy of the ballot as well as to ensure
4
the purity of the election.
The Constitutional Experience
Ceylon’s transformation from a Crown Colony into Dominion
Status was a gradual evolutionary process spread over a period of
146 years.^ Consequently, when after over a century of experimentation with constitutional forms and techniques, the stage of
representative and responsible government was finally reached, the
Ceylonese had had an opportunity not only to acquire a knowledge
of the system, but also to appreciate its value as an instrument
for the protection and promotion of their own well-being. This was
eloquently demonstrated in the years that followed: eight general
elections at six of which the government in office was, often
decisively, voted out.
Evidence Ordinance, s.112.
Children and Young Persons Ord., ss. 59, 71-74. See also
Minimum Wages Ord., s.4, which prohibited the employment of children
below ten years of age on estates.
Ceylon (Parliamentary Elections) Order in Council 1946, ss.4-7.
Ibid., ss. 37, 40-42, 53-58, 84.
For a detailed description, see K.M.de Silva, “The Legislative
24
In 1802, by the terms of the Peace of Amiens, the Dutch
settlements in the maritime provinces of Ceylon became a British
possession. Thirteen years later, upon the signing of the
Kandyan Convention of 2 March 1815, the island of Ceylon in its
entirety became a part of the expanding empire of King George III.^
Yet, barely two decades later, the process of decolonisation was
set in motion. In 1833, upon the recommendation of a constitutional
commission headed by Lt.Col.W.M.G.Colebrooke, a confirmed Benthamite,
provision was made for the appointment of a Legislative Council of
nine official and six unofficial members; the latter were to be
selected Mas far as possible in equal proportions from the
respectable European merchants or inhabitants and the higher
2
classes of natives”. In 1835, three Ceylonese (a low country
Sinhalese, a Tamil and a Burgher) were appointed; a beginning had
been made in constitutional government in which the Ceylonese had a
share, however minuscule. The Governor was, of course, the effective
ruler of the colony. But in 1838, the Legislative Council, whose
advice and consent he was required to seek before he made any law,
was authorised to criticise and revise those portions of the budget
which did rot relate to the fixed civil and military expenditure.
In 1860, members were allowed to put down motions for debate
without the prior authorisation of the Governor, except where it
was sought to dispose of or charge any part of the revenue. The
composition of the Legislative Council, however, remained unchanged
for the next fifty-four years: in 1889, the number of unofficial
members was increased to eight by the addition of two Ceylonese to
represent the Kandyan Sinhalese and the Moors. The Executive Council,
Council in the Nineteenth Century”, History of Ceylon, Vol.3
(Colombo: University of Ceylon, 1973), pp.226-248; A.J.Wilson,
“The Development of the Constitution, cl910-1948”, ibid., pp. 359-380;
K.M.de Silva, “The History and Politics of the Transfer of Power”,
ibid., pp.489-533.
The Kandyan Convention was entered into between the Governor
and Commander-in-Chief of the British Settlements and Territories in
Ceylon and the Adigars, Dissawas and other principal chiefs of the
Kandyan Provinces. For full text, see Legislative Enactments of
Ceylon, rev.ed (1956), chap.390.
Order in Council, 28 September 1833. See also G.C.Mendis,
Documents on British Colonial Policy in Ceylon, 1796-1833,(QUP.1956).
25
which the Governor was required to consult “upon all occasions of
difficulty or importance” but whose advice he was not obliged to
accept, consisted predictably of officials only, though not
exclusively of Englishmen. From time to time, Ceylonese who served
permanently or acted in the office of Queen’s Advocate or Colonial
Treasurer sat in the Executive Council.
In 1910, the principle of election was introduced.’*’ Four
unofficial members were elected from constituencies described as
Urban European, Rural European, Educated Ceylonese and Burgher.
While the qualifications for inclusion in the Burgher constituency
were racial stock and literacy in English, the franchise for the
Educated Ceylonese seat was mainly confined to the very small
English-educated Sinhalese and Tamil elite. Of a total adult male
population of 1,120,762, only 2938, of whom 1659 were Sinhalese and
2
1072 were Tamils, were entitled to vote.
In 1920, provision was made for an unofficial majority in the
3
Legislative Council: 14 official and 23 unofficial members. Of
the latter, eleven were to be elected territorially and five from
special constituencies (two by Europeans, one by Burghers, one by
the European dominated Chamber of Corrmerce and one by the Sinhalese
controlled Low Country Products Association. The principle of
representative government was thus conceded. In 1924, provision
was made for representative government as defined in the Colonial
Laws Validity Act 1865: in the new legislature, over one-half of
the members would be elected.^ The new Legislative Council consisted
Royal Instructions, 24 November 1910.
Ironically, the contest for the Educated Ceylonese seat was
strenuously fought on caste issues. Governor MacCallum, in a
confidential despatch of 24 January 1912 to the Colonial Secretary
(quoted by K.M.de Silva in History of Ceylon, Vol.3, at p.387) stated:
“The Goyigamas were not of sufficient strength to secure the
Educated Ceylonese seat for one of their own caste by
election . . ./and sol as a body they supported Mr.P.
Ramanathan than accord a vote for Dr.H.M.Fernando, a
Sinhalese who belongs to the Carawe caste.”
Ramanathan, a Tamil lawyer, was elected.
Order in Council, 13 August 1920.
Ceylon (Legislative Council) Order in Council, 1923.
26
of 12 official and 37 unofficial members, of whom 34 were elected.
Of them, twenty-three were elected territorially and eleven
communally (three Europeans, two Burghers, one western province
Ceylon Tamil, three Moors and two Indian Tamils). Although the
Governor was ex-officio president of the Council, provision was
made for a vice-president to be elected, and for the first time a
Ceylonese began to preside over its deliberations. The franchise
was based on an income or property qualification and a literacy
test. For all practical purposes, power (but not responsibility)
was vested in the English educated middle class. Four per cent of
the population had been enfranchised.
Although the principle of representative government had been
conceded, the elected representatives were not responsible for the
conduct of the government. The Legislative Council was unable to
implement its decisions. But the Governor, unless he secured the
consent of the Council, could not enforce his will except by the
use of his special powers which, if resorted to too frequently,
would reduce representative government to a sham. He therefore
had to attenpt by one means or another to obtain the support of the
elected representatives in a Council in which they tended to form
a permanent opposition partly because they felt that that was the
only way open to them to exercise any power and partly because they
knew that in any event they could not be called upon to assume
responsibility. Despite this conundrum, the system marked a
significant leap in Ceylon’s constitutional evolution. As the
Donoughmore Commission observed in its report of July 1928:
It was true that it transferred the balance of power from
a responsible Executive to an irresponsible Legislature;
an experiment which could not be without risk; on the one
hand, the very extent of the power entrusted to them made
the elected members in a real sense co-partners in the
Government. It was clear that without their active
co-operation the Government would be helpless, but it was
equally clear that they were as anxious as the official
members to promote the good government of the country and
would not be likely to withhold that co-operation. The
system thus provided a means of educating the unofficial
members in the arts of government and the complexities of
public business, and of providing them with that training
which would enable them in future years to assume
responsibility for the administration of the island. 1
Ceylon: Report of the Special Commission on the Constitution
(1928; Cmd. 3131), p.19. This report is commonly referred to as the
Donoughmore Report.
27
1931 saw not only the consolidation of representative
government, but also the grant of a considerable measure of
responsible government and, more significantly, universal adult
franchise. The Ceylon (State Council) Order in Council 1931,
which was based on the recommendations of the Donoughmore
Commission, which in turn was inspired by the committee system of
the League of Nations and of English local government, provided
for a State Council with both legislative and executive functions.
It consisted of 50 members elected territorially on universal
adult franchise, 3 ex-officio members without voting rights, and
12 persons nominated by the Governor to make the Council more
representative. The Council divided into seven executive
committees, each being charged with the general direction and
control of a number of government departments. Each committee
elected a chairman, and these seven chairmen together with the
three officers of state formed the Board of Ministers. Certain
areas of governmental activity were left to the officers of state
who were responsible to the Governor – the public service,
external affairs and defence under the Chief Secretary; elections,
legal advice and the administration of justice under the Legal
Secretary; and finance under the Financial Secretary. However,
the Board of Ministers as a whole was charged with the general
conduct of the business of government and in particular the
preparation of the annual budget. The Governor was required to
consult freely with his Ministers and to communicate to them all
public despatches. The Chief Secretary functioned as chairman of
the Board, with one of the Ministers (usually the Leader of the
Council) as vice-chairman.
With the grant of universal adult franchise, the electorate
in 1931 comprised over one and a half million. In 1936, when the
second election was held, the electorate had increased to about
two and a half million. The revised register in 1940 contained
a total number of 2,635,000 electors. On the eve of dominion
status, Sir Ivor Jennings summed up this last phase of constitutional
evolution thus:
The Donoughmore Constitution had few friends at its
beginning and none at all at the end. It had nevertheless some advantages. It covered the awkward gap
28
between representative government and responsible
government. It enabled the Ceylonese Ministers to
take some of the steps – especially in the fields
of education and health – which they thought
necessary. It gave them a broad experience of the
problems of government. It taught them the necessity
for corordination and common action. There may be
argument whether they could have taken complete
responsibility in 1931; there was no doubt at all
in 1945. 1
Nationalism and Trade Unionism
2
Ceylon’s struggle for independence was relatively peaceful.
Except for the occasional romantic folk hero who emerged to lead a
mild skirmish in the early years of British rule, very little blood
was actaully shed in the cause of national independence. The
movement was essentially one for the reform of the constitution and
it was led from time to time by the emerging elite. Until the final
stage, the dominant objective of the constitutionalists was a
greater share of state power rather than freedom or liberation. As
the events of 1956 were to demonstrate, the power base of the
national elite who secured independence, properly attired in British
morning dress, was to erode in less than a decade. They appeared
to be as far removed from the common man as the colonial rulers had
been. Consequently, independent Ceylon did not, unlike many African
States, inherit a powerful nationalist movement which was capable
of dominating the post-independence political life of the country
and thereby stifling the growth of political thought and philosophy.
In 1864, a dispute between the Governor and the unofficial
members of the Legislative Council on financial policy led to the
formation by the latter of the Ceylon League. Led by George Wall,
who represented the plantation interests, and C.A.Lorenz, who
represented the Burgher community, it campaigned strenuously to
secure for the Council control of the financial affairs of the colony.
It did not succeed, and after five years it faded away. Yet it was the first credible attempt in the island to combine and agitate for Ivor Jennings,
For a full discussion, see K.M.de Silva, “The Reform and Nationalist Movements in the Early Twentieth Century”, History of Ceylon, Vol.3, pp.381-407.
29
constitutional reform. In 1916, the legal profession organised itself through the Ceylon Reform League and petitioned for the abolition of nominated members, racial representation and the
official majority. In the following year, the Ceylon National Association was formed to demand “a share in the actual administration of the country”. A joint conference on constitutional
reform convened by these two bodies in 1917 led to the formation two years later of the Ceylon National Congress. At its first session, Ponnambalam Arunachalam, its president, described its
moderate and reformist objective as being “only to substitute for one form of British administration which we have outgrown and which is impeding our development, another form more suitable to
our needs and conditions”. What was envisaged was a legislature with an unofficial majority elected on a territorial basis by means of a wide male and restricted female franchise, minority representation by nomination, and the introduction of a quasi-cabinet system with a few departments headed by unofficial members.
These efforts by the low-country elite, the westernised professional class, to acquire a share of political power for themselves produced counter reactions among other elitist groups.
In 1918, the Kandyan Sinhalese, who feared that in a unified independent Ceylon they would be numerically outnumbered by the Sinhalese of the highly populous low-country, organised themselves
into the Kandyan Association in order to maintain and assert their
own separate identity. When the Congress intensified its demand
for the abolition of communal electorates and for election on a
territorial basis, the Kandyan wing defected altogether from it.
In 1934, an attempt was made by S.W.R.D.Bandaranaike to bridge the
schism between the Sinhalese through the Sinhala Maha Sabha, and
partially succeeded in attracting members of the Kandyan elite to
it. At the same time as the Kandyan defection, the Tamils too
withdrew from the Congress. They formed the All-Ceylon Tamil
Conference to unite Tamil resistance to the territorial principle
of election and to agitate for comnunal representation. In 1944,
the All-Ceylon Tamil Congress began arguing for an electoral
system that would assure the minorities equal representation with
the Sinhalese. At this time, the Burghers and Europeans also
30
declared their opposition to any further reforms that would lead to
the transfer of political power to the Sinhalese. In 1927, the
European Association was established to protect the interests of
the conniunity whose name it bore. The Muslims, however, recognising
the inevitability of self-government and majority rule, asked only
for “adequate representation” for themselves: in 1923, the Ceylon
Muslim League urged them to work for full responsible government in
Ceylon.
Parallel to the constitutionalist and the communally oriented
reform movements, there were also other forces at work. The
Christian missionary activities provoked a Buddhist resistance
movement. It began in the western and southern provinces, the
educational centres of the missionaries and the home of the emerging
non-goyigama elite. It first manifested itself between 1864 and 1890,
when Buddhist leaders engaged their Christian counterparts in five’
public debates at which they vigorously asserted the virtues of their
own belief. These highly publicised, well attended, and emotionally
charged denunciations of Christianity not only helped to boost the
self-confidence of the Buddhists, but also enabled them vicariously
to reject the cause of western imperialism with which all missionary
activity was seen to be inextricably bound. Newspaper accounts of
these debates attracted the attention of Col.H.S.Olcott, the
American founder of the Theosophical Society. When, in 1880, Olcott
and his Russian associate, Madame Blavatsky, arrived in Galle and
dramatically embraced Buddhism, they did so amidst scenes of
unparalleled religious fervour. The Theosophists taught the Buddhists
the techniques of modem organisation, and this ability soon
manifested itself in the temperance movement which caught the
imagination of the masses to a far greater extent than the agitation
for constitutional reform had succeeded in doing. From the villages
it spread enthusiastically into the towns and brought together,
ostensibly for a common purpose, sections of the rural elite such
as school teachers, small traders and village notaries, and the
conspicuously affluent urban elite, a few of whom even held
controlling interests in the liquor industry. This movement provided
the Ceylonese with an opportunity to learn the mechanics of organising
and influencing public opinion. It provided the visible impetus for
an otherwise remote constitutional dialogue.
31
More dramatic perhaps was another development which was
taking place away from the centres of wealth and power. Working
people were beginning to organise themselves and resort to strike
action against their employers: in 1906, a strike by carters so
alarmed British officials that they believed that Indian sedition
had been imported in the guise of trade union agitation. In 1918,
an attempt by A.E.Goonesinghe to mobilise youth to agitate for the
immediate relief of social problems through the Young Lanka League
was aborted when Goonesinghe was persuaded to join the Ceylon
National Congress. Goonesinghe’s conservatism was replaced by the
more militant leadership of the Marxist movement which emerged during
the depression of the 1930s. A group of intellectuals who had
studied at British universities in the late ‘twenties and had come
under the influence of men such as Harold Laski formed the core of
this new phenomenon in Ceylon society. One of them, Colvin R.de
Silva, barrister-at-law, organised the Wellawatte Mill Workers
Union, the first Marxist organisation for labour agitation in the
colony.
Political Organisations
The political institutions established from time to time did
not envisage the existence of opposing political parties. Indeed,
even when a considerable measure of internal self-government was
granted in 1931 and universal adult franchise introduced, the
institutional structure then established was not designed to promote
the development of political parties. Nevertheless, during the
last two decades of colonial rule, due primarily to the desire of
different social groups to safeguard and promote their own welfare,
a number of political organisations emerged, and when the first
parliamentary election was held in 1947, the voters were offered a
choice between competing political philosophies.^
A.E.Goonesinghe, who had been a pioneer in labour agitation
and whose Ceylon Trade Union Congress had organised a number of
strikes in the 1920s, was invited to London by the British Labour
Party in 1927. On his return, he formed the Labour Party upon a
For a fuller survey, see Calvin A.Woodward, The Growth of a
Party System in Ceylon (Providence, U.S.A: Brown University Press,
1969).
32
somewhat less socialistic ideology than its British counterpart; its creed was described as “political democracy” and he stood for moderately progressive social reforms. The return to Sri Lanka of a group of intellectuals who had been fervently attracted to Marxist doctrine while studying in
British and American universities coincided with the depression of the 1930s. S.A. Wickramasinghe, Colvin R.de Silva, Philip Gunawardena, M.G. Mendis, N.M. Perera and Leslie Goonewardene were as articulate as they were individualistic. Yet a common antipathy towards British imperialism brought them together in 1933 in a campaign
directed against the sale of poppies on Remembrance Day. The Surya
Mai Movement, named after the indigenous flower which replaced the
poppy in collections made on behalf of local servicemen, led to the
formation, on 18 December 1935, of the Lanka Sama Samaj Party.
While structured as a closed and militant body, the LSSP was able
to develop a mass following through agitation and the creation of
ancillary organisations such as trade unions and youth movements.
It organised workers in the industrial, commercial, communication
and harbour areas, and then moved into the economically critical
plantation sector. It reached its widening popular base of workers
and the middle class intelligentsia through two newspapers
published in Sinhala and in Tamil. In 1939, the executive
committee of the LSSP passed a motion of no-faith in the Third
International and expelled the Stalinist minority from the party.
Thereafter, it adopted a Trotskyist stance with a revolutionary
programme inspired by the platform of the Fourth International. The
expelled Stalinists formed the United Socialist Party in 1940 under
the leadership of S.A.Wickremasinghe.
The LSSP espoused a policy of “revolutionary defeatism”
towards World War II. Consequently, the party was proscribed in
1942 and its leaders detained. Some of them escaped to India where
they helped to form the Bolshevik Leninist Party of India as a
section of the Fourth International. On their return, a power
struggle between them and those who had spent the war years in
detention in Ceylon led to the formation in 1945, under the
leadership of Colvin R.de Silva, of the Bolshevik Leninist Party.
The USP did not oppose the war and was, therefore, not proscribed
initially. However, its increasing use of the strike weapon was
33
considered dangerous to the war effort and, in March 1942, it was
declared illegal. In July 1943, the USP dissolved itself and formed
in its place the Ceylon Communist Party.
The fears and tensions of the declining years of communal rule
gave birth to two other political parties with a purely communal
basis. Efforts made since the late 1920s to organise the Indian
estate labour into one comprehensive organisation had proved quite
ineffective until eight thousand Indian railway road workers were
dismissed in 1939. Then, on the suggestion of Jawaharlal Nehru, the
Ceylon Indian Congress was formed under the leadership of G.R.Motha
and I.X.Pereira. Its main objective was to obtain political and
legal rights for Indians. The All-Ceylon Tamil Congress through
which G.G.Ponnambalam had unsuccessfully advocated representation
for the minorities on an equal basis with the Sinhalese, emerged as
a political party seeking to represent the northern and eastern
provinces in the new House of Representatives.
On the eve of Independence, several groups and personalities
began searching for a broad ideological consensus. They realised
that an electoral majority in the new Parliament could only be
obtained by an organisation which was sufficiently comprehensive.
They feared that the Marxists, with their charismatic leadership
and a solid base of popular support acquired through trade union
links with the working class, may well satisfy that requirement.
Accordingly, after discussions between the Ceylon National Congress,
the Sinhala Maha Sabha, the Ceylon Muslim League, the Moors
Association and the leaders of the Tamil community such as Arunachalam Mahadeva and Subbiah Natesan, the United National Party was
founded in 1946. The founding groups of the UNP were not dissolved
upon its formation; they were permitted to retain their separate
organisations provided they accepted the programme and principles
of the UNP and acted in accordance with its constitution and the
decisions taken by the party. They continued parallel to the party
as organised blocs of power and interest. For the moment, therefore,
potential areas of conflict between the different groups were
submerged by the urgent need to form a political union based on a
belief in progressive capitalism, private enterprise, parliamentary
democracy, and a moderate approach to the solution of social problems;
in short, a political party which would, after an electoral victory,
ensure the maintenance of the status quo.
34
A n E m e r g i n g E l i t e
The hundred years immediately preceding Dominion Status saw
the emergence of a middle class in Sri Lanka.’*’ Helped considerably
by the educational and the economic policies of the colonial
administration, an enterprising section of the community was able
to break away from the traditional pattern of life and from the
established social strata, and enter the professional, commercial
and public service systems. In their wake, and often as
complementary to their initiative, a larger section found employment
of a type and nature which exposed them to new areas of economic
activity and, consequently, to new values and standards in a rapidly
changing world. When the stage of full self-government was finally
reached and men and ideas were urgently required to grapple with a
variety of problems, Ceylon was not found lacking in either.
Education
Education was at first not regarded as a service to be provided
by the State. Instead, it was left in the hands of British missionaries who ventured out in quick succession seeking converts to
Christianity. The London Missionary Society (1804) was followed by
the Baptists (1812), the Weslyan Methodists (1814) and the Church
Missionary Society (1818). Missionaries sent by the American Board
of Commissioners for Foreign Missions arrived in 1816, and confined
their activities almost exclusively to the northern province. From
their separate efforts emerged a system of excellent denominational
schools. In 1832, the government policy on education changed.
Henceforth, it was to be a legitimate sphere of state activity,
directed towards certain clear objectives: to prepare candidates
for public employment, as an aid to natives to cultivate European
attainments, to wean them away from caste and from a dependance on
subsistence agriculture. The Colombo Academy (now Royal College)
was established by the Government in 1835, and soon rivalled the
missionary institutions in their efforts to create a class of
Ceylonese who stood apart from the mass of their countrymen. More
schools were established in the provinces, some teaching subjects
like surveying and others providing a more rudimentary knowledge of
See Michael Roberts, “Elite Formation and Elites, 1832-1931”,
History of Ceylon, Vol.3, pp.263-284.
35
the English language. The literate percentage of the population
which was 17.4 in 1881 and 26.4 in 1901, increased to 39.9 in 1921*
In 1947, on the eve of Independence, 1,004,586 pupils were
registered in primary and secondary schools, and the literacy rate
was 57.8 (or 70.1 of the male and 43.8 of the female population).
The educational effort was not confined to the missionaries
and the government. The Buddhist revival in the second half of
the nineteenth century saw not only the establishment of two centres
of oriental learning, the Vidyodaya Pirivena in 1872 and the
Vidyalankara Pirivena in 1876, but also a sustained effort to build
up a network of primary and secondary schools. Between 1880 and
1890, the Buddhist Theosophical Society established forty Buddhist
schools. In the years leading to Independence, these schools
fulfilled an important historical function. They served as the
training ground of a new elite, educated in a Buddhist atmosphere,
and therefore more responsive to the social and cultural ethos of
the great mass of the Ceylonese people.
Parallel to the revival of Buddhism was the recovery of
Hinduism and Islam – two phenomena which also contributed to the
emergence of a viable middle class. The Saivaite scholar, Arumuga
Navalar, established a school in every Tamil village where Saivaite
education could be imparted in a purely Saivaite environment.
Thereafter, mindful of the value of an English education, he
founded in 1872 the Saivangala Vidyasalai (now the Jaffna Hindu
College) where English could be taught along with the religious
background necessary for Hindu children. The recovery of Islam
came a generation later. The presence in Ceylon of the exiled
Egyptial hero, Arabi Pasha, was the opportunity availed of by local
Muslim leaders to jolt their community out of their conservative
secularism. Education was used for this purpose, and the Muslim
Educational Society which was established endeavoured to create an
elite educated on modem lines who would provide the leadership
which the Muslims sorely needed. The Al-Madrasatuz Zahira (now
Zahira College) was established in 1892 with this end in view.
Economic Enterprise
The rapid economic expansion which began in the mid-nineteenth
century offered Ceylonese with initiative an opportunity to break
loose from a feudal social structure inhibited by caste and class
36
considerations. As early as the 1830s, a few low-country Sinhalese
had involved themselves successfully in coffee smallholdings. From
the 1850s, a larger number invested with equal success in cinnamon
plantations and still more took to coconut. While rubber also
attracted Ceylonese entrepreneurs, tea remained the preserve of the
Europeans until the early twentieth century when the former began
purchasing tea plantations which were already developed and carving
out new plantations in the hitherto virgin mid and low country,
particularly in the southern province and the Kelani valley. Equally
lucrative were gemming operations in the Sabaragamuwa province, the
extraction and export of graphite which gathered momentum in the
1860s, and the manufacture and distribution of arrack which appears
to have been a profitable occupation even during the Dutch period.
In Colombo, the ownership of urban property was a major source of
capital accumulation.
These pioneering efforts of a class which soon achieved
national elite status opened up a variety of other business lines.
Servicing the plantations and the plantation districts assumed the
proportions of a new industry. Forest clearing contracts, the
supply of food and labour, the operation of general merchant stores
and 1’hotels” in the new “bazaar towns”, transport of supplies,
supply of furniture, barrels and timber, railway sleepers and
telegraph poles, and building contracts, were some of the less
prestigious, nevertheless lucrative, channels of capitalist
enterprise which bolstered the social mobility of a substantial
section of the comnunity. In 1946, the gainfully employed population
accounted thus:
TABLE 6
GAINFULLY EMPLOYED POPULATION BY OCCUPATIONS, 1946
Occupation Percentage
Agriculture, Forestry and Fishing 52.9
Manufactures 11.0
Commerce and Services 21.1
Public and Professional Services 5.7
Domestic and Personal Services 9.3
Source: B.L.Panditaratne and S.Selvanayagam, “The Demography of
Ceylon – An Introductory Survey”, History of Ceylon, Vol.3, at p:.302.
37
Professionalism
The Civil Service was at first exclusively European, recruitment being dependant solely upon patronage. Ceylonese aspirations
were satisfied with the appointment, mainly of Burghers, into a
clerical service. However, following the recommendations of the
Colebrooke Commission, local candidates began to be admitted into
the service. By 1868, in a 1084-strong civil establishment, 894
woe Ceylonese. Of 282 superior appointments, 92 were filled by
Ceylonese. 84 of the superior appointments came within what was
strictly the civil service, and of these ten were held by Ceylonese.
Professionalism was evident in other areas too as the following
statistics show:
TABLE 7
NUMBER OF CEYLONESE MALES IN SELECT OCCUPATIONS
Occupation 1881 1901 1911 1921
Barristers, Advocates and Proctors 268 356 553 800
Physicians and Medical Practitioners (inv.) 326 (inv.) 789
Land Surveyors 99 160 (n.d.) 465
Civil Engineers (n.d.) 11 (inv.) 56
Auctioneers and Brokers (n.d.) 26 54 74
Source : Michael Roberts, “Elite Formation”, History of Ceylon,
Vol.3, p.272.
n.d. – no data
inv. – data ignored because categorisation is suspect.
In 1934, the percentage of Ceylonese in the public service had risen
to 68.1 per cent, and by 1939 it had increased to 78 per cent. From
1943, recruitment to the Civil Service was by an open competitive
examination held only in Ceylon.^
For a full account, see W.A.Wiswa Warnapala, “Bureaucratic
Transformation, c.1910-1948″, History of Ceylon, Vol.3, pp.408-427.
38
A National Press
The active involvement of Ceylonese in the economic life of
the country from the early years of British rule, and the comparatively slow transfer to them of a share of political power, inevitably
led to a search for other avenues of expression. The newspaper
offered a wider audience than one’s own social circle or economic
interest group, and therefore sooibecame a popular medium. At first,
a national newspaper would have a limited circulation confined to
Colombo and perhaps a few other provincial towns; the average daily
sale would have been considered very successful if it reached a
thousand. But with the remarkable increase in literacy and the
growing political consciousness of the people, the newspaper became
a powerful medium of communication. On the eve of Independence,
the transition from limited circulation to mass production had
already taken place; newspapers in all three languages were being
distributed to the furthest ends of the island, carried to their
readers by the most modem means of transportation.^ Of course, the
press gave expression, in the main, to the views of a handful of
newspaper proprietors who were, more often than not, anglicised,
affluent, and ardent advocates of the established order. But the
Ceylonese had learned quickly to discern. They joined common cause
with the press barons to secure political independence for the
country. But as later events were to demonstrate most eloquently,
not all the sophistry, blandishments and wierd prognostications of
the national newspapers could wean them away from a political course
2
once they had decided to adopt it.
The first newspaper in the island was the Government Gazette
which contained “obituary notices recounting the virtues of
departed ones, poetry of varied merit, and interesting and instructive
communications on various subjects”. In 1832, Governor Robert
William Horton encouraged the publication of the Colombo Journal
which was printed at the Government Press and was edited by its
superintendent. In 1834, the merchants of Colombo combined to
publish the Observer and Commercial Advertiser whose first issue
For a detailed and documented discussion on jounalism in
Ceylon, see H.A.J.Hulugalle, The Life and Times of D.R.Wijewardene,
(Colombo: Associated Newspapers of Ceylon Ltd, 1960).
For instance, at the 1956 general election, all the national
newspapers launched a vigorous campaign against S.W.R.D.Bandaranaike
who eventually won a decisive victory.
39
invited “those who are inclined to favour a free press” to become
subscribers. The Observer attacked the Government so relentlessly
that in 1837 the Ceylon Chronicle emerged to offer a defence of the
administration. This newspaper was privately aided by the Governor
and sustained through the efforts of a committee of civil servants.
The Governor was a frequent contributor until it folded up sixteen
months later in September 1838. Within four days, the types and
printing presses of the Ceylon Chronicle began issuing the Ceylon
Herald, a newspaper which at first opposed and later supported the
Government. It survived for eight years until July 1846 when it was
purchased by a group of Europeans who wished to start a newspaper
to oppose the Observer which by now had begun supporting the
Government. Thus came into being the Ceylon Times which still
survives as The Times of Ceylon.
The Examiner was first published in September 1846 by a few
British merchants as a mercantile organ. It later passed into the
hands of a group of lawyers before ceasing publication in 1900. Two
other newspapers in circulation at this time were the bi-weekly
Kandy Herald and the Ceylon Independent, both of which were
published by the planting community. The Ceylon Standard was
started in 1908 by a group of wealthy Sinhalese. Upon its liquidation,
there arose the Morning Leader which was at first owned by the
members of the De Soysa family; then by a syndicate of leading
members of the Karawa community; and finally by one of them, W.A.de
Silva. With information supplied and policy influenced by Sir Marcus
Fernando, who was connected by marriage to the De Soysa family, and
ably edited by Armand de Souza, the Morning Leader soon became very
influential. In 1913, Ponnambalam Ramanathan, who was seeking
election to the Educated Ceylonese seat in the Legislative Council
against Sir Marcus Fernando, founded the Ceylonese. Its first
editor and manager were both Americans, and its news presentation,
sales promotion, reporting and methods of publicity were distinctly
American.
At this stage there appeared on the journalistic scene a man
who was determined to build for himself a newspaper empire similar
to those which he had observed in England in the years he had spent
at Cambridge and at the Inns of Court. D.R.Wijewardene, the eldest
son of a wealthy Goyigama timber merchant from Sedawatte, a suburban
hamlet in the Colombo district, perhaps also shared the belief of
40
the wealthy Goyigama upper-middle class at that time that a
controlling share of political power and initiative ought to be
snatched from their Karawa compatriots before it was too late.
In 1918, Wijewardene bought for a pittance the goodwill and plant
of the now bankrupt Ceylonese, and in its place launched the
Ceylon Daily News. In 1923, he purchased the ninety year old
Ceylon Observer and thus acquired an evening daily. When the
Ceylon Independent was put in the market, Wijewardene bought it
and then allowed it to die since to run it successfully would have
meant creating a rival to the Daily News. With the aid of modem
technical expertise and a rigorous and aggressive competitiveness,
Wijewardene soon put the Morning Leader out of business, leaving
the European-owned Times of Ceylon, an evening newspaper with a
daily circulation of about 4000 copies, as the only rival.
The earliest Sinhala newspaper was the Lankalokaya, started
in 1860 and edited by W.P.Ranasinghe. In the same year, the
Lakrivikirana, and in 1865 the Lakminipahana, both weeklies,
commenced publication. The Sarasavi Sandarasa which was started
by the Buddhist Theosophical Society had as its editor, Pandit
Weragama Bandara who “introduced a fine style, elegant and popular,
and brought a new spirit into Sinhalese writing”. Also in circulation
at this time were the Sinhala Baudhaya and the Sinhala Jatiya: the
latter being edited by Piyadasa Sirisena, a well-known publicist of
his day. H.S.Perera founded the Dinamina which was bought by
Wijewardene and transformed into the most influential Sinhala daily
newspaper in the country.
Several Tamil newspapers were published in Jaffna. The first
attempt at journalism was made in 1841 when the Morning Star, a
bi-monthly Tamil journal was launched under the editorship of Henry
Martyn. The Catholic Guardian commenced in 1876. Other newspapers
published in Jaffna from time to time included the Ceylon Patriot,
the Jaffna Freeman and the Hindu Organ. In course of time, two
national newspapers, the Virakesari and the Thinakaran emerged to
play an important part in the social and political life of the
Tamils.
CHAPTER II
THE CONSTITUTIONAL PROTECTION OF
HUMAN RIGHTS
At Independence, Sri Lanka inherited a substantial body of
law which provided for human rights. During the next three decades,
as constitutional bills of rights gained acceptance throughout the
new Commonwealth, efforts were made in Sri Lanka to build upon this
inheritance by specifically protecting human rights in the Constitution. Each Constitution embodied a distinctive approach, different
in style, technique and content from the standard WestminsterWhitehall model devised for inclusion in independence constitutions.
In this chapter, it is proposed to examine Sri Lanka’s attempts at
formulating a bill of rights, and the measure of success that
attended, or eluded, these attempts.
The 1946 Constitution
The 1946 Constitution ^ did not contain a bill of rights. In
fact, a bill of rights was not demanded by any section of the
comnunity with any degree of seriousness; nor was it contemplated
either by the Royal Commission which recommended the new constitutional
scheme or by the British Government which brought the new Constitution
into force. This apparent unconcern for what was soon to become the
standard technique for prescribing the limits of state authority
so as to ensure that the equally important area of individual rights
and freedoms is not trespassed or encroached upon, was perhaps due
to the fact that, despite the turmoil and turbulence that then
prevailed on several continents both far and near but beyond the
seas, the island of Ceylon had reached the penultimate phase of its
extended constitutional evolution quietly and imperturbably. As a
Colonial Office commentator has observed:
Ceylon was able to approach independence with all the
machinery of government well designed, smoothly running
and in full working order. The Ceylon Civil Service
This expression refers to the Ceylon Independence Act 1947,
and the Ceylon (Constitution and Independence) Orders in Council of
1946 and 1947 respectively.
42
had been gradually transformed from a service staffed
by British people to one staffed by Ceylonese: a
service with a proud and undiminished record of
efficiency and integrity, trained to give Ceylon
Ministers the same kind of able and impartial advice
and to execute their policy with the same devotion to
duty as its United Kingdom model and counterpart. The
financial business of the state was organised under
well-tried regulations and practices. The Judiciary
were secured in a position of full independence of
political or external control, and the rule of law
firmly established. The Police were recognised and
respected as the instrument not of the executive
government of the day but of the law; their function
not to oppress or coerce the citizen but to protect ^
him in the peaceful pursuit of his lawful occupations.
The preparation of a constitutional scheme on which the 1946
Constitution was to be based was undertaken by the Board of Ministers
of the State Council in June 1943 in response to a Declaration issued
by the British Government in the previous month that “the post-war
re-examination of the reform of Ceylon’s constitution, to which His
Majesty’s Government stands pledged, will be directed towards the
grant to Ceylon by Order of His Majesty in Council of full responsible
government under the Crown in all matters of internal self2
government”. The Declaration added that “such detailed proposals
as the Ministers may in the meantime have been able to formulate in
the way of a complete constitutional scheme” will be examined by a
3
suitable commission or conference. When the Ministers were
preparing their constitutional scheme, the Ceylon National Congress
submitted to the Board for its consideration a draft constitution
prepared by one of its joint secretaries, J.A.L.Cooray, which
embodied a comprehensive bill of rights. It was a justiciable bill
of rights with procedural remedies for their enforcement. Some of
the Ministers, including D.S.Senanayake, then Leader of the State
Council and vice-chairman of the Board, believed that a constitution
containing comprehensive guarantees of human rights would allay the
fears of minority conmunities in regard to their position in the new
political order. The majority of the Ministers, however, decided
Sir Charles Jeffries, Ceylon – The Path to Independence,
(London: Pall Mall Press, 1962), pp.130-131.
Declaration by His Majesty’s Government, 26 May 1943,
S.P. XVII – 1943, para.l.
Ibid., para.7.
43
not to include such a bill of rights.^ Several factors probably
influenced their decision:
The 1943 Declaration had indicated quite clearly that
the acceptance by the British Government of any constitutional
scheme submitted by the Ministers would depend, firstly, upon
full compliance with certain conditions set out in that Declaration,
and secondly, upon the subsequent approval of the scheme by threequarters of all members of the State Council. The conditions set
out related, in the main, to certain reserved subjects and powers;
they did not require the inclusion of a bill of rights.
The State Council elected in 1936, to which was to be
submitted the Minister’s scheme, consisted of the following:
TABLE 8
COMMUNAL DISTRIBUTION IN THE STATE COUNCIL, 1936
Low Country Sinhalese … 31
Kandyan Sinhalese … 8
Ceylon Tamils … 8
Indian Tamils … 3 +
Europeans … 5 +
Muslims … 2 +
Burghers … 1 +

includes nominated members.
To secure an affirmative vote of 44 (three-quarters of all the
members), the total Sinhalese membership would have had to be
supplemented by some at least of those who belonged to the minority
communities. This, as the Ministers observed at that time, was
“a difficult condition”, although it was believed that the State
Council possessed “the larger patriotism that transcends sectional
2
differences”. In consideration of their support for a scheme
prepared by the Ministers, the minorities could have insisted on
the inclusion of a bill of rights. This they did not do.
Instead, pre-occupied as they were with the fear of being swamped
by majority rule, the minorities appeared to be satisfied with

J.A.L.Cooray, Constitutional and Administrative Law of Sri
Lanka (Colombo: Hansa Publishers Ltd, 1973), p.508.
Statement by the Ministers on the Reforms Declaration by His
Majesty’s Government, 8 June 1943, S.P. XVII-1943, para.2.
44
checks on the exercise of legislative power which would ensure the
integrity, not of the individual, but of the community.
There was no public participation in the preparation of
the Ministers’ constitutional scheme; nor was the scheme expected
to be submitted to the people at a referendum. The only requirement
was that it should be acceptable to three-quarters of the members
of the State Council which included a substantial minority group.
Neither within the Board, nor in the State Council at that time,
was there an embryonic political opposition whose views would have
had to be accommodated. The Ministers were drafting a scheme under
which they themselves would be called upon to assume responsibility
for full self-government. The only limitations which they need
impose upon their share of political power would be those concessions
required to be made in exchange for the support of the minority
communities in the State Council.
The Ministers’ scheme was prepared by Sir Ivor Jennings
who, at that time, was Principal of the Ceylon University College.
From the day on which the 1943 Declaration was issued by the British
Government, Sir Ivor functioned as honorary constitutional adviser
to the Board of Ministers, and in that capacity wielded considerable
influence on the course of events leading to Dominion Status.^- On
one question, at least, he had quite definite views; as he himself
wrote some years later:
In Britain we have no Bill of Rights; we merely have
liberty according to law, and we think – truly, I
believe – that we do the job better than any country
which has a Bill of Rights or a Declaration of the
Rights of Man. 2
It would appear that in later years Sir Ivor had occasion to change
3
his views on this subject, at least with reference to Ceylon.
But at the material time there is no doubt that the Ministers’
thinking was conditioned greatly by the views which Sir Ivor Jennings
then held.
The 1946 Constitution was drafted before the Universal
Declaration of Human Rights proclaimed a common standard of
achievement; indeed, even before the United Nations was constituted.
Ivor Jennings, The Constitution of Ceylon, 2nd ed. (Bombay:
Indian Branch, OUP, 1951), Preface.
Id., Approach to Self-Government (OUP, 1958), p.20.
According to Cooray, Constitutional Law, p.509, Jennings
admitted, in a talk over the BBC in 1961, that a comprehensive
45
None of the constitutional documents that had led to responsible
government and eventual Dominion Status in Canada, New Zealand,
Australia or South Africa contained a bill of rights. In the then
far flung British Empire, only the 1875 Constitution of the Kingdom
of Tonga contained a declaration of rights: a unique phenomenon
which may perhaps be attributed to the influence of Christian
missionaries upon a very receptive local ruler.’*’ Therefore, it is
safe to assume that when in the early 1940s the Colonial Office
set out to transform the constitutional structure of its “model
tropical dependency” into that of a Dominion (and thus pave the
way for the emergence of the New Commonwealth), it did not have
before it, as it has had since the 1960s, a model constitution in
which a bill of rights formed an integral and essential component.
The Minister’s Scheme
The constitutional scheme prepared by the Board of Ministers
contemplated the following limitation on legislative power:
Parliament may make laws for the peace, order and
good government of Ceylon.
In the exercise of its power under Article 7
Parliament shall not make any law –
(a) to prohibit or restrict the free exercise of
any religion; or
(b) to make persons of any community or religion
liable to disabilities or restrictions to which
persons of other comnunities or religions are
not made liable; or
(c) to confer on persons of any community or
religion any privileges or advantages which
are not conferred on persons of other
communities or religions; or
(d) to alter the constitution of any religious body
except with the approval of the governing
authority of that religious body. 3
chapter on fundamental rights was very desirable in Ceylon’s Constitution, particularly in the heterogeneous society of Ceylon. After
admitting that the constitution he helped to draft had had only a
limited success, Sir Ivor had added: “If I knew then as much about
the problems of Ceylon as I do now, some of the provisions would
have been different”.
Professor Read states that King George Tupou I was prevailed
upon by the Consul-General for Hawaii to include a bill of rights in
the constitution based upon the Declaration of Rights of Hawaii of
7 June 1839. See James S. Re ad, “Bills of Rights in the Third World:
Some Commonwealth Experiences”, (1973) VRU, 21.
This expression was used in the Donoughmore Report.
S.P. XIV-1944. Also reproduced in Appendix I, Soulbury Report.
46
In an explanatory memorandum, the Ministers stated that:
Article 8 is a general protection to minorities, whether
racial, social or religious. This being a restriction on
legislative power, it would be for the courts to say
whether the Article was infringed, and they could declare
an Act of the Ceylon Parliament to be invalid if it
contravened the Article. It is based on a provision in
the Constitution of Northern Ireland. 1
Therefore, the only fundamental rights which the Ministers
intended that the Constitution should protect, and prevent
Parliament from interfering with, were: (1) the freedom of
religion, and (2) the freedom of communities and groups from
discrimination.
The Soulbury Report
In July 1944, the British Government appointed a commission
headed by Lord Soulbury, a former Conservative Cabinet Minister
in the United Kingdom, not only to examine the constitutional
scheme prepared by the Ministers, but also to “provide full
opportunity for consultation to take place with various interests
including minority communities concerned with the subject of
constitutional reform and with:, proposals which Ministers have
2
formulated”. After a stay of nearly three and a half months in
Ceylon, during which evidence was recorded at public sessions and
information was gathered at private discussions, the commission
submitted its report to the Secretary of State for the Colonies
who presented it to the United Kingdom Parliament in September
In its report the commission agreed, inter alia, that
the legislative power of Parliament should be limited in the
manner proposed by the Ministers. The commission did not make
any other reconnendations on this subject; nor did it propose the
inclusion of a bill of rights. A White Paper embodying the
decisions of the British Government was published on 31 October
3
1945, and the proposals contained therein were accepted by the
State Council by 51 votes to 3; only two Indian Tamils and one
4
Sinhalese voting against it.
Ibid.
Statement made by the Secretary of State in the House of
Cannons on 5 July 1944, Reform of the Constitution: Further Correspondence , S.P. XII-1944, p.3.
Ceylon: Statement of Policy on Constitutional Reform (1945;
Gnd 6690).
Jennings, Constitution, pp. 11-12.
47
The Protected Rights
The Ceylon (Constitution) Order in Council 1946, which was
made on 15 May 1946 to give effect to the recommendations of the
Soulbury Commission, sought to protect only the following elements
of some of the fundamental rights:
The right to periodic elections (Sections 11 and 15)
The right to protection against legislative action which seeks
to prohibit or restrict the free exercise of religion (Section
29(2)(a))
The right to protection against legislative action which seeks
to discriminate against a community or religion (Section 29
(2)(b) and (c))
The right to a competent, independent and impartial tribunal
(Sections 52, 53, 54, 55 and 56), and
The right of access, on general terms of equality, to the public
service (Sections 58, 59, 60, 61 and 62).
These sections could be amended or repealed only with a special
majority of not less than two-thirds of the total number of members
of the House of Representatives. A proposal contained in the
constitutional scheme prepared by the Ministers that any such
amendment or repeal should be by express words to that effect, did
not find a place in the Constitution.’*’
The 1946 Constitution has been described as having “had
entrenched in it all the protective provisions for minorities that
2
the wit of man could devise”. Section 29 was undoubtedly the most
important provision in this respect. Its relevant portions read
as follows:
(2) No such law shall –
(a) prohibit or restrict the free exercise of any
religion; or
(b) make persons of any community or religion liable
to disabilities or restrictions to which persons
of other communities or religions are not made
liable; or
(c) confer on persons of any community or religion
any privilege or advantage which is not
conferred on persons of other communities or
religions; or
S.P. XIV-1944, s.10.
Jeffries, Independence, p.115.
48
(d) alter the constitution of any religious body
except with the consent of the governing
authority of that body, so, howeverthat:in
any case where a religious body is incorporated by law, no such alteration shall be made
except at the request of the governing authority of that body.
(3) Any law made in contravention of subsection (2) of
this section shall, to the extent of such contravention, be void.
The application of this provision is examined in a later chapter.^
It would perhaps suffice at this stage to note the following:
Only the law-making process was sought to be regulated. Neither
executive or administrative action, nor the acts of private
individuals, fell within its control.
The protection offered was only against discriminatory treatment
in respect of “privileges”, “advantages”, “disabilities” and
“restrictions”. The violation of human rights generally,
whether of an individual or of a group, whether separately
or in community with others, and conduct outside the scope
of the four enumerated concepts, did not fall within its
control.
The expression “community” was not defined. Was it intended
to mean only ethnic groups, or did it also contemplate
divisions based on language and caste ?
The expression “free exercise” was a vague and indeterminate
concept. Was the right intended to be absolute or could a
court whittle it down in the interests of orderly government ?
Despite its limited scope, however, section 29 did represent an
embryonic form of an enforceable bill of rights.
The right to periodic elections was contained in those
provisions which limited the duration of each elected House of
Representatives to a period of five years, and required the
Governor-General, upon making a proclamation dissolving Parliament,
to summon a new Parliament on a date not later than four months.
Although no remedy was provided for the enforcement of this right,
it would have been possible for the validity of a purported
legislative act made by a Parliament which had outlived its term
of office or by an authority other than a duly elected Parliament,
Infra, Chap.V.
49
to be challenged in court. Thereby, any attempt to frustrate these
provisions could effectively have been thwarted.
The right to a competent, independent and impartial tribunal
was secured by providing that judges of the Supreme Court will be
appointed by the Governor-General; they may hold office until the
prescribed age of retirement and will not be removable except on
an address of both Houses of Parliament; their salaries which may
not be diminished will be charged on the Consolidated Fund; and
that the appointment, transfer, dismissal and disciplinary control
of other judicial officers will be the sole and exclusive responsibility of an independent Judicial Service Commission.
Similarly, the right of access, on general terms of equality,
to the public service was secured by vesting the appointment,
transfer, dismissal and disciplinary control of public officers in
a Public Service Commission which was insulated from political
influence. It must be noted in this connection that the Constitution
did not claim to guarantee fundamental rights. It was merely
seeking to provide certain “safeguards” in order to remove the
fear which existed in the minds of the Tamil minority of “domination
and oppression” by a “permanent and unassailable majority”.^
The approach adopted by the Soulbury Commission may be
contrasted with the recommendations made by the Willink Commission
appointed in 1957 to ascertain the facts about the fears of
minorities in Nigeria and to propose means of allaying those fears
whether well or ill founded. That country, too, was on the eve of
Independence. Almost all the witnesses who came before that
commission were insistent that nothing but a separate state could
meet their problems; only the Christian bodies asked for provision
in the constitution guaranteeing fundamental rights. The commission,
however, unanimously recommended a bill of rights:
Provisions of this kind in the Constitution are difficult
to enforce and sometimes difficult to interpret. Nevertheless,
we think they should be inserted. Their”presence defines
beliefs widespread among democratic countries and provides
a standard to which appeal may be made by those whose
rights are infringed. A Government determined to abandon
democratic courses will find ways of violating them but
they are of great value in preventing a steady deterioration
Soulbury Report, paras 137, 177.
50
in standards of freedom and the unobtrusive encroachment of a Government in individual rights.
The Nigerian bill of rights was modelled on the European Convention
on Human Rights and was itself to serve as the model for the New
Commonwealth in the next two decades.
The Constitution in Operation
The Ceylon (Constitution) Order in Council 1946 was brought
into operation progressively: Parts I, IV and IX on 17 May 1946;
Part III on 5 July 1947; Parts II, V, VI and VII on 1 September
1947; and Part VIII on 14 October 1947, which was the date of the
first meeting of the new House of Representatives. At a general
election which was spread over a month, 55.9 per cent of the
electorate had polled to produce the following result:
TABLE 9
THE 1947 GENERAL ELECTION RESULT
Party Seats
won
Votes
polled
Percentage
polled
United National Party 42 751,432 39.8
Lanka Sama Samaj Party 10 204,020 10.8
All-Ceylon Tamil Congress 7 82,499 4.4
Ceylon Indian Congress 6 72,230 3.8
Bolshevik Leninist Party 5 113,193 6.0
Communist Party 3 70,331 3.7
Labour Party 1 38,932 2.1
Independents 21 549,381 29.1
Source: Based upon Dept, of Elections, Results of Parliamentary
General Elections in Ceylon, 1947-1970 (Colombo: Dept, of Govt.
Printing, 1971).
D.S.Senanayake, as the leader of the largest party, was invited to
form a government. His Cabinet consisted of eleven members of the
UNP; two Independents, both of whom were Tamils; and the member of the
Labour Party. The votes of six members nominated to represent
“important interests” which were either “not represented” or were
Nigeria: Report of the Commission appointed to enquire into
the fears of Minorities and the means of allaying them (1958;Cmnd
505), pp.97-103.
51
“inadequately represented”,^ together with those of several
Independents, assured the Government of a comfortable majority
in the House.
With the establishment of a Government, events moved swiftly
towards Dominion Status. On 11 November 1947, three Agreements
were signed in Colombo by the Governor on behalf of the United
Kingdom and by the Prime Minister on behalf of Ceylon. They were:
A Defence Agreement to regulate the relations between the two
countries in respect of defence
An External Affairs .Agreement similarly regulating relations in
respect of external affairs
A Public Officers Agreement transferring to the Government of
Ceylon the responsibilities in respect of officers in the public
service appointed with the consent of the Secretary of State for
the Colonies.
Two days later, the Ceylon Independence Bill was introduced in the
British Parliament, and after its passage through both Houses,
received the Royal assent on 10 December 1947. On 19 December, the
Ceylon (Independence) Order in Council was passed. The Agreements,
the Independence Act and the Independence Order in Council all came
into force on the “appointed day”, 4 February 1948. On this day,
the first non-European colony achieved independence. As Lord
Soulbury remarked in the House of Lords:
This is a historic occasion. It is a landmark in the
development of the evolution of the British Empire, and
it brings another step nearer what I believe to be the
ultimate aim of British statesmanship – the fusion of
Empire and Commonwealth. 2
As with the older Dominions, Independence did not bring with it a
new constitution; it was simply a matter of brushing aside the
vestiges of colonial dependence. Therefore, for a bill of rights
to find its way into the Ceylon Constitution, there was required
both the prescribed majority and the desire to invoke it. During
the life of the first Parliament, the Government possessed neither.
Before the life of the first Parliament ended, several
significant events, some of which were ominous, took place. With
the enactment of a citizenship law, the Indian Tamil community was
1946 Constitution, s.11(2).
Quoted in Jeffries, Independence, p.126.
52
virtually disfranchised.-^ The elitist leadership of the Tamil
Congress abandoned the demand for “balanced representation” and
crossed the floor to join the Government, while those of the
party who remained in the Opposition formed the Federal Party
with regional autonomy as its objective. Disillusioned with the
conservative economic and social policies of the Government, the
Leader of the House, S.W.R.D.Bandaranaike, resigned and formed
the Sri Lanka Freedom Party to provide “a democratic alternative
to the party in power” and to afford “the people who, while being
dissatisfied with the policies and programmes of the Government,
wished to make a change that was neither revolutionary nor
2
extreme, the opportunity of doing so”. Finally, in February
1952, the rugged but wily farmer who, as Prime Minister, had
donned English morning dress to unfurl Ceylon’s national flag on
Independence Day, fell off his horse and died. The GovernorGeneral, Lord Soulbury, interrupted a holiday in England to rush
back to his office, and then stunned both Cabinet and Country by
choosing the late Prime Minister’s son, Dudley Senanayake, the
youngest member of the Cabinet, to head the Government. The new
Prime Minister immediately dissolved Parliament.
At the second general election, held in May 1952, 70.7 per
cent of the electorate polled to produce the following result:
TABLE 10
THE 1952 GENERAL ELECTION RESULT
Party Seats
won
Votes
polled
Percentage
polled
United National Party 54 1,026,005 44.8
Sri Lanka Freedom Party 9 361,250 15.5
Lanka Sama Samaj Party 9 305,133 13.1
Communist Party 4 ’ 134,528 5.8
All-Ceylon Tamil Congress 4 64,512 2.8
Federal Party 2 45,331 1.9
Labour Party 1 27,096 1.2
Independents 12 326,783 14.0
Source: Ibid.
Infra, p. 279.
S.W.R.D.Bandaranaike, Speeches and Writings (Colombo: Govt.
Press, 1963), p.141.
53
Together with the six nominated members and its allies in the
Labour Party, the Tamil Congress and among the Independents, the
Government of Dudley Senanayake commanded a two-third’s majority
in the House. But the rubber boom which followed the outbreak of
the Korean war and almost coincided with Independence was beginning
to subside. It was time not for constitutional reform, but for
economic strategy. A reduction of the government subsidy on rice
led to a “hartal” or a general stoppage of work; during a state of
emergency which was declared to deal with widespread destruction
of public property, several people died at the hands of the
authorities.^ Two months later, in October 1953, Dudley Senanayake,
by then a sick man, resigned his office, quit politics, and left
the island. He was succeeded by Sir John Kotelawela, the Cabinet’s
most senior member and a colonel in the volunteer force. Fiercely
pro-west at a time when resurgent Asia was seeking to establish
its own identity, Kotelawela brought back to Ceylonese society
more than a touch of the ancien regime. Leaving aside domestic
affairs, he concentrated on international politics. Having hosted
a conference of Asian Prime Ministers, he next attended the Bandung
Conference where, according to “The Economist”, he “catapulted
himself into American hearts”. He then set out on a global tour
of friendly capitals and returned home as Ceylon’s most decorated
personality.
In December 1955, Ceylon secured admission into the United
Nations. By subscribing to the UN Charter, Ceylon re-affirmed its
“faith in fundamental human rights” and pledged itself to take
action in order to promote “universal respect for, and observance
of, human rights and fundamental freedoms for all without distinction
as to race, sex, language or religion”. The minimum standards of
human rights had already been set out in the Universal Declaration
of Human Rights. This subject, however, did not receive any
further attention from the Government. Instead, in February 1956,
against a background of escalating tension between the Sinhalese
and the Tamils on the question of an official language, Sir John
advised the Governor-General to dissolve Parliament, fifteen months
before it was due.
Infra, p.449.
54
The general election of April 1956 was a watershed in the life
of the country. It was a confrontation between the forces of
nationalism and the westernised elite who had secured and enjoyed
Independence; between the common man and the establishment;
between the many who had stood in the shadows for too long and the
few who had stalked the corridors of power and influence for several
decades. To face this election, the Sri Lanka Freedom Party led by
S.W.R.D.Bandaranaike had formed a coalition, the Mahajana Eksath
Peramuna (People’s United Front), with two small but equally
nationalistic groups, the Viplavakari Lanka Sama Samaj Party led by
Philip Gunewardene and the Bhasha Peramuna (Language Front) led by
W. Dahanayake, and entered into no-contest pacts with the Lanka Sama
Samaj Party and the Communist Party. To secure the victory of
their sixty candidates, in the weeks preceding the election, in the
thousands of little villages in and around Ceylon, ten thousand
Buddhist monks, ayurvedic physicians and village schoolmasters
trekked from house to house. In three days of polling, 69 per cent
of the electorate completely changed the face of Ceylon politics:
TABLE 11
THE 1956 GENERAL ELECTION RESULT
Party Seats
won
Votes
polled
Percentage
polled
Mahajana Eksath Peramuna 51 1,045,725 39.7
Lanka Sama Samaj Party 14 274,204 10.5
Federal Party 10 142,036 5.4
United National Party 8 718,164 27.4
Communist Party 3 119,715 4.6
All-Ceylon Tamil Congress 1 8,914 0.3
Independents 8 289,491 11.1
Source: Ibid.
Having secured an absolute majority of the elected members, Bandaranaike found no need to invite representatives of the two Marxist
parties, with whom he had entered into an electoral arrangement, to
join his Cabinet. Consequently, the LSSP occupied the front benches
of the Opposition and the Government had to be content with its
absolute majority.
55
Moves to Amend the Constitution
The first step towards the amendment of the 1946 Constitution
for the purpose, inter alia, of incorporating a bill of rights, was
taken one year after the assumption of office of the new government.
On 26 April 1957, the Prime Minister moved in the House of Representatives :
That it is expedient that a Joint Select Committee of
the Senate and the House of Representatives should be
appointed to consider the revision of the Ceylon
(Constitution and Independence) Orders in Council 1946
and 1947, and other written law, with reference to the
following among such other matters as the Committee
may consider necessary –
(1) the establishment of a Republic;
(2) the guaranteeing of fundamental rights;
(3) the position of the Senate and Appointed Members
of the House of Representatives; and
(4) the Public Service Commission and the Judicial
Service Commission. 1
The motion having been agreed to, on 7 January 1958 the Senate
concurred. On 18 February 1958, by resolution of both Houses, the
following were appointed to serve on the Joint Select Committee:
S.W.R.D.Bandaranaike (SLFP/MEP)
Stanley de Zoysa (SLFP/MEP)
D.P.R.Gunewardene (VLSSP/MEP)
T.B.Illangaratne (SLFP/MEP)
M.D.Banda (UNP)
S.J.V.Chelvanayakam, Q.C. (FP)
Colvin R. de Silva (LSSP)
M.S.Kariapper (Ind.)
P.B.G.Keuneman (CP)
N.M.Perera (LSSP)
R.S.V.Poulier (Nominated MP)
Senator M.W.H.de Silva, Q.C. (SLFP/MEP)
Senator A.P.Jayasuriya (SLFP/MEP)
Senator E.B.Wikramanayake, Q.C. (UNP)
Senator C.Wijesinghe (SLFP/MEP)
Senator S.Nadesan, Q.C. (Ind.)
Senator E.J.Cooray (UNP)
Senator N .U .Jayawardene (Ind.)
Represented on this Joint Select Committee were all the political
parties in Parliament; the four major communities (and within the
Sinhalese community, the four major caste groups and the two
divisions of Kandyan and Low-country Sinhalese); and the four
major religious groups (including the different Christian denominations). Of its eighteen members, only seven belonged to the
ruling party and only six to the dominant Sinhalese-Buddhist1. First Report of the Joint Select Committee of the Senate and
56
Goyigama group. It was clear, therefore, that in this exercise
in constitutional revision, what was intended was not that the
pre-conceived views of any particular political party or interest
group should prevail, but that a general consensus should be
achieved: a fact which would have more than compensated for the
Government’s lack of a two-third majority in Parliament.
Before Parliament was prorogued, the Joint Select Committee
was able to meet thrice in March and April of that year, and to
cause a questionnaire to be published in the national newspapers
seeking the views of the public on, inter alia, –
What are the “fundamental rights” which you would
like to see guaranteed in the revised Constitution ?
What procedure do you suggest for dealing with any
infringement of such rights ? In particular, what
safeguards do you suggest in respect of legislation
which is alleged to contravene the provisions of
the Constitution ?
Thereafter, on the six occasions on which it was able to meet before
Parliament was again prorogued, the Committee considered in the main
matteis^relating to the delimitation of electoral districts. Among
them was a matter which had a direct bearing on the requirement of
“universal and equal suffrage”. The Constitution provided that for
every 75,000 persons resident in a province, a Delimitation Comnission
shall allot one electoral district to that province. In 1946, almost
everyone resident in Ceylon was entitled to vote upon attaining the
age of 21 years. In 1948, Parliament changed this position
substantially. A large proportion of the resident population was
excluded from the electoral process as they could not satisfy the
stringent requirements of Ceylon citizenship.’*’ In 1958, there
were approximately 1,147,500 residents (out of a total resident
population of 9,361,300) who were not citizens. Consequently,
while certain electorates had as many as 70,903 voters (Kelaniya)
and 68,115 (Balangoda), certain others, particularly in the central
highlands, had as little as 9,484 (Kotagala) and 4,470 (Talawakele).
In other words, one voter in Talawakele had the same electoral
power as 14 voters in Kelaniya. The Committee recommended that this
distortion be rectified by amending the Constitution to provide that
the number of persons to be taken into account in the demarcation
the House of Representatives appointed to consider the Revision of
the Constitution, Parliamentary Series, No.15 of the Third Parliament.
Infra, p.279.
57
of an electoral district should be only those residents who are
citizens. This was a unanimous recommendation.
On 6 February 1959, the Joint Select Committee agreed, inter
alia, that appeals to the Privy Council should be discontinued and
a new judicial tribunal should be set up to adjudicate on constitutional issues as well as to entertain appeals from the Supreme
Court.^ On 5 March 1959, according to the minutes of the committee’s
proceedings,
The following rights were generally approved of for
inclusion in the Constitution, to be considered further
in detail in the form of draft legislation:-
(a) Political Rights –
i) Equality before the law (cf. Articles 14 and 15
of the Indian Constitution).
ii) Protection of life and personal liberty, of which
no person shall be deprived except according
to procedure established by law (cf. Article 21
of the Indian Constitution).
iii) Right to freedom of speech and expression (cf.
Article 19 of the Indian Constitution).
iv) Right to assemble peaceably and without arms
(cf. Article 19 of the Indian Constitution).
v) Right to form associations or unions (cf. Article
19 of the Indian Constitution).
The Rights (ii) to (v) are to be exercised subject to
any reasonable restrictions imposed by law in the
public interest.
(b) Economic Rights –
i) Equality of opportunity in matters of public
employment.
ii) The right to acquire, own and dispose of
property according to law and the right not to
be dispossessed of property save by authority
of law (cf. Article 31 of the Indian Constitution),
iii) The Right to reside and carry on any lawful
occupation, trade or profession in any part of
the territory of Ceylon (cf. Article 19 of the
Indian Constitution).
(c) Right to freedom of religion –
i) Freedom of conscience and worship and the free
profession and practice of religion,
ii) Freedom to manage religious affairs.
(d) Cultural and Educational rights of minorities –
i) Right of any section of the citizens of Ceylon
having a distinct language, script or culture of
its own to conserve and develop the same.
Supra.
58
ii) Right of any section of the citizens of Ceylon
to establish and administer educational
institutions provided: (1) such institutions
conform to the educational requirements of
that State, and (2) such institutions do not
have the right to claim assistance from the
State except as provided by law.
iii) The State shall not in granting aid to
educational institutions discriminate against
any educational institution on the ground
that it is under the management of a minority,
whether religious or linguistic.
(e) Right to enforce Fundamental Rights –
The right to move the highest tribunal by appropriate
proceedings for the enforcement of Fundamental Rights
and to obtain suitable redress, for which purpose
such tribunal shall be vested with the power to issue
the necessary directions or orders or writs requisite
for the enforcement of Fundamental Rights.
The Committee agreed that for purposes of Fundamental
Rights the expression “State” shall be defined to include
the Government and Parliament of Ceylon and all local
and other authorities in Ceylon. 1
The committee were also “generally of the view that it would be
useful at this stage of their proceedings to obtain the services
of officers possessing the necessary knowledge of constitutional
law and practice to prepare detailed material necessary in the
future deliberations”. In this connection, Prime Minister
Bandaranaike had preliminary discussions with Justice T.S.Fernando
a former Attorney-General who was an active member of the Genevabased International Commission of Jurists, and J.A.L.Cooray,
lecturer in constitutional law at the Ceylon Law College who in
1943 had prepared a comprehensive bill of rights for the Ceylon
2
National Congress.
In April 1959, Bandaranaike was faced with a Cabinet crisis
a confrontation between the right and left wings of his Cabinet,
which he attempted to resolve by re-shuffling the subjects and
functions allocated to the Ministers. This led to the resignation
from the Cabinet in May 1959 of his left-wing Ministers, including
two members of the Joint Select Committee, D.P.R.Gunewardene and
M.W.H.de Silva, Q.C., the Minister of Justice and vice-chairman
Supra.
Interview with J.A.L.Cooray, September 1981.
59
of the comnittee. In June 1959, he re-constituted his government
and reiterated the basic policies of his party thus:
Politically, we are democratic as we believe that the
democratic way of life is the most suitable for human
progress. Economically, we believe in the socialist
approach, as we are of the opinion that it is only in
this way that justice can be done to the mass of the
people. A third factor in our policy is our belief
that cultural and religious views must be preserved
and fostered. It will thus be seen that we are
opposed to both communism and fascism, to capitalism
and materialism. Our party stands against any attempt^
to impose any of these on the people of this country.
But the Government had lost its vitality; its spiritual base had
become questionable; and Bandaranaike himself was very much a
prisoner of the right-wing. On 25 September 1959, the Prime Minister
was assassinated at the hands of a Buddhist monk in a conspiracy
in which several prominent right-wingers of his party were later
found to have been implicated. He was succeeded by W.Dahanayake
who had led the right-wing revolt six months previously. A series
of bizarre events, including the dismissal of ten Cabinet Ministers
and the survival of the Government on a no-confidence vote through
the single vote of an appointed MP, culminated in the dissolution
of Parliament barely two months later. The first reformist
government of Ceylon had survived for only three and a half years.
At the general election held in March 1960, Dahanayake led his
newly formed Lanka Prajathanthrawadi Pakshaya (Ceylon Democratic
Party), while former Cabinet colleagues D.P.R.Gunewardene and
C.P.de Silva led the MEP and the SLFP respectively. Four former
members of Bandaranaike’s parliamentary group, I.M.R.A.Iriyagolle,
K.M.P.Rajaratne, S.D.Bandaranaike and T.B.Subasinghe, led four
other new parties, the Samajawadi Mahajana Peramuna (Socialist
People’s Front), Jathika Vimukti Peramuna (National Liberation
Front), Bosath Bandaranaike Peramuna (Bodhisattva S.W.R.D.Bandaranaike Front), and the Sri Lanka Jatika Peramuna (Sri Lanka
National Front). At a free-for-all, but extraordinarily peaceful,
election at which Prime Minister Dahanayake lost his own seat in
a constituency which he had represented for over a decade, 77.6
per cent of the electorate polled to produce an indecisive result:
Bandaranaike, Speeches, 179.
60
TABLE 12
THE 1960 (MARCH) GENERAL ELECTION RESULT
Party Seats
won
Votes
polled
Percentage
polled
United National Party 50 908,996 29.6
Sri Lanka Freedom Party 46 648,094 21.1
Federal Party 15 176,492 5.7
Mahajana Eksath Peramuna 10 325,832 10.6
Lanka Sama Samaj Party 10 322,352 10.5
Lanka Prajathanthrawadi
Pakshaya 4 125,344 4.1
Comnunist Party 3 141,857 4.6
Jatika Vimukti Peramuna a 2 11,201 0.4
All-Ceylon Tamil Congress 1 38,275 1.2
Samajawadi Mahajana Peramuna 1 24,143 0.8
Sri Lanka Jatika Peramuna 1 11,115 0.4
Bosath Bandaranaike Peramuna 1 9,749 0.3
Independents 7 270,881 8.8
Source: Ibid.
a. One member was returned uncontested.
The Governor-General invited Dudley Senanayake, who had returned to
politics and assumed the leadership of the UNP in the previous year,
to form a government. His minority government, which held barely a
third of the seats in _aJ57-member House of Representatives, opened
Parliament with a Throne Speech which promised, inter alia, that
“early steps for the revision of the Constitution for the purpose
of establishing a Republic of Ceylon within the Conmonwealth and for
providing a guarantee of fundamental rights to the minorities” would
be taken.^ The Government was defeated on the Address of Thanks.
Senanayake advised a dissolution and Ceylon prepared to poll a
second time in one year.
For the general election scheduled for July 1960, the Sri
Lanka Freedom Party was led by Mrs. Sirimavo Bandaranaike, the
assassinated Prime Minister’s 41-year old widow. Though lacking
any real political experience, she had reluctantly agreed to provide
a symbolic, and undoubtedly charismatic, leadership to a fragmented
Throne Speech of 6 April 1960, Ceylon Today, Vol.IX, No.4, p.l.
61
party in the hope of restoring the credibility which it enjoyed in
the heady days of Bandaranaike’s administration. She immediately
entered into no-contest pacts with the Lanka Sama Samaj Party and
the Communist Party. Consequently, faced with two clear alternatives,
75.6 per cent of the electorate polled to produce a decisive result:
TABLE 13
THE 1960 (JULY) GENERAL ELECTION RESULT
Party Seats Votes Percentage
won polled polled
Sri Lanka Freedom Party 75 1,022,154 33.6
United National Party 30 1,143,290 37.6
Federal Party 16 218,753 7.2
Lanka Sama Samaj Party 12 223,993 7.4
Communist Party 4 90,219 3.0
Mahajana Eksath Peramuna 3 102,833 3.4
Lanka Prajathanthrawadi Peramuna 2 29,190 1.0
Jatika Vimukti Peramuna 2 14,030 0.5
All-Ceylon Tamil Congress 1 46,803 1.5
Independents 6 140,522 4.6
Source: Ibid.
Mrs.Bandaranaike, though not a member of Parliament herself, was
invited to form a government. Upon her acceptance and appointment,
a vacancy was created in the Senate to enable her to be nominated
to the Upper House. Assured of an absolute, though tenuous, majority
in the House of Representatives, Mrs.Bandaranaike formed an
exclusively SLFP Government in the knowledge, no doubt, that for
the radical programme of change in the social, cultural and economic
spheres to which her Government was committed, the support of the
left-wing parties would be forthcoming.
Mrs.Bandaranaike’s Government did not show any immediate
inclination to resume the task of constitutional revision which had
been interrupted by the assassination of Bandaranaike in the previous
year. A willingness to consider an amendment to the Constitution
to make Ceylon a Republic, if Parliament so desired it, was expressed
62
in 1961, but was not followed up.^ Mrs.Bandaranaike had asked for
and obtained a mandate to continue her husband’s programme of work,
and perhaps believed that the economic restructuring of society
should receive priority over everything else. It was this belief
and the conviction that the Government was proceeding in the wrong
direction that led to the abortive coup d’etat in January 1962 by
right-wing elements in the higher rungs of the armed services,
police and the civil service. They had planned to arrest the Prime
Minister, the Minister of Finance Felix Dias Bandaranaike (who was
her Parliamentary Secretary and spokesman in the House of Representatives), left-wing leaders and trade unionists and certain senior
civil servants, dissolve Parliament, suspend the Constitution, and
establish a government with the Governor-General at its head. It
was claimed by the alleged conspirators that UNP leader Dudley
2
Senanayake was aware of the plan. The resulting state of emergency
was hardly propitious for the discussion of a draft bill of rights.
Meanwhile, relations between the two major communities as well
as the economic situation deteriorated, and the Finance Minister
resigned when his proposal to cut the rice ration was rejected by
Parliament, In August 1963, the three left-wing parties led by
veteran Marxists, N.M.Perera, D.P.R.Gunewardene and S.A.Wickremasinghe, combined to form the United Left Front with a 21-point
programme. This unity, however, was shortlived and the new Front
disintegrated when, in April 1964, the LSSP coalesced with the SLFP
and three of its members joined the Cabinet on a 14-point programne
agreed to between the two parties. One of the points on the
programme related to the establishment of a Press Council, a
proposal which enabled the Opposition to re-group its diverse
forces for attack. In December 1964, fourteen right-wing members
of the government parliamentary group, including the Leader of the
House C.P.de Silva, crossed the floor and voted with the Opposition
on this issue, thus bringing down the Government by one vote. Two
weeks later, Parliament was dissolved, eight months before it was
due.
Throne Speech of 13 July 1961, Ceylon Today, Vol.X, No.8, p.l.
Coup d’etat: Statement read on behalf of the Government by
Felix R.Dias Bandaranaike, Parliamentary Secretary for Defence and
External Affairs, in the House of Representatives on 13 February 1962
(Colombo: Govt. Press, 1962).
63
The alignment of forces at the general election held in March
1965 followed the usual pattern, except that those right-wing
members of the SLFP who defected had formed their own party, the
Sri Lanka Freedom Socialist Party. At a poll at which 82.1 per cent
of the electorate voted, the result was as follows:
TABLE 14
THE 1965 GENERAL ELECTION RESULT
Party Seats
won
Votes
polled
Percentage
polled
United National Party 66 1,579,181 38.9
Sri Lanka Freedom Party a 41 1,226,833 30.2
Federal Party 14 217,986 5.4
Lanka Sama Samaj Party 10 302,095 7.4
Sri Lanka Freedom Socialist
Party 5 129,986 3.2
Communist Party 4 109,744 2.7
All-Ceylon Tamil Congress 3 98,726 2.4
Mahajana Eksath Peramuna 1 110,388 2.7
Jatika Vimukti Peramuna 1 18,791 0.5
Independents 6 237,805 5.9
Source: Ibid
a. The SLFP, LSSP and CP campaigned together on the basis of a
no-contest electoral agreement.
Dudley Senanayake, the leader of the UNP, formed a “national
government” which comprised representatives of the SLFSP, MEP, JVP,
as well as the two Tamil communal parties, the FP and the TC.
Together, the Government commanded the support of at least 96
members – nine short of a two-third majority.
The National Government promised that it will “be fair to all,
irrespective of race, community or religion, and will protect human
rights at all times”.’*’ It took steps to re-activate the Joint Select
Committee on the Revision of the Constitution. By 8 October 1966,
both Houses had resolved to appoint a committee with the same
terms of reference which included the question of the guaranteeing
Throne Speech of 9 April 1965, Ceylon Today, Vol.XIV, Nos.3
and 4, p.8.
64
of fundamental rights. By 3 May 1967, a committee had been
constituted with representatives from both government and opposition
parties. But at its first meeting held on 19 May 1967, a letter
signed by Mrs.Bandaranaike, Maithripala Senanayake, N.M.Perera,
Leslie Goonewardene and P.G.B.Keuneman, requesting the Speaker
to accept their resignations, was tabled. The reasons why these
representatives of the three opposition parties declined to
participate are discussed below. Their withdrawal meant that the
chances of securing a two-third’s majority, which was necessary to
amend the Constitution in any respect, became quite remote.
Nevertheless, the committee proceeded with its work, but not from
the point at which an interruption had occured in 1959; thus
further minimising the possibility of a consensus even on a matter
such as fundamental rights. It prepared, as its predecessor had
done nearly ten years previously, a questionnaire to be sent to
Senators, Members of Parliament and recognised public organisations.”
During the next session of Parliament, nine sittings were held at
which, apart from considering the written replies received in
response to the questionnaire, a number of witnesses who wished to
give oral evidence were examined. In its report, presented to
Parliament on 13 June 1968, the committee recommended that a
2
chapter on fundamental rights be incorporated in the Constitution.
There is no record of the comnittee having met again; certainly, no
action was taken to implement this recommendation.
Shortly after the defeat of the SLFP-LSSP Coalition
Government at the general election of March 1965, these two parties
together with the Conmunist Party decided to formalise their
relationship and to prepare a programme of work which they would
agree to implement in the event of a victory at the next election.
Accordingly, several joint committees were appointed to examine
and report upon a number of areas of governmental activity,
including constitutional reform. On this subject, the three
parties decided against attempting any patch-work revision of the
1946 Constitution; they resolved to have a new republican
constitution drafted and enacted by a constituent assembly. This
decision appears to have been motivated by a number of factors:
Report of the Joint Select Committee of the Senate and the
House of Representatives, Parliamentary Series No.16 of the Sixth
Parliament.
Ibid, Parliamentary Series No.30 of the Sixth Parliament.
65
The LSSP was proscribed in 1942, and during the war years
its leaders were detained under Defence Regulations. Consequently,
they took no part in the discussions and consultations that
preceded the preparation by the Board of Ministers of their
constitutional scheme. In any event, they had throughout agitated
for a complete break with the British Crown, and regarded the
1946 Constitution as a fraud perpetrated to keep Ceylon in a
continuous state of subjection. The LSSP’s co-founder, ColvinR.de
Silva, one of Ceylon’s most eminent and successful criminal lawyers,
had consistently declined to take silk and thereby be regarded as
one of “Her Majesty’s Counsel” learned in the law. Although the
LSSP had been willing to go along with Bandaranaike’ s proposals
for constitutional reform in the mid-fifties, they now advocated
a deliberate break in legal continuity or a legal revolution so
that the new constitution would have no links whatsoever with the
British Crown or Westminster.
In academic circles the question had been raised whether
in the exercise of the power of Parliament to amend or repeal any
of the provisions of the Constitution, Parliament (i.e. the Queen,
the Senate and the House of Representatives) could legally divest
itself of one of its constituent parts; and in particular, that
part from which it actually derived its legal authority. Parliament
was shortly to attempt, successfully as it turned out, the
abolition of the Senate. Yet, without the benefit of hindsight,
before the Joint Select Committee itself, it had been argued by
C.F.Amerasinghe, senior lecturer in law at the University of Ceylon,
that Parliament as defined in the Constitution could not be
organically changed except by the substitution of a totally new
constitution.
In 1964, in the case of Bribery Commissioner v.
2
Ranasinghe, Lord Pearce, delivering the judgment of the Judicial
Committee of the Privy Council, had referred to section 29(2) of
the Constitution which “entrenched religious and racial matters,
which shall not be the subject of legislation”, and expressed the
opinion that:
They represent the solemn balance of rights between
the citizens of Ceylon, the fundamental conditions on
which inter se they accepted the Constitution; and
these are therefore unalterable under the Constitution.
Ibid, p.102.
(1964) 66 N.L.R. 73, at 78.
66
Previously, the Privy Council had referred to this subsection as
containing “fundamental reservations”, subject to which Parliament
enjoyed the power to make laws for the peace, order and good
government of Ceylon.^ This obiter dictum of the highest court
of appeal provoked a spirited controversy in Ceylon.
H.L.de Silva, a leading constitutional lawyer, asserts that
whenever it is intended to erect a theory of unalterability of a
2
constitution, “words of crystal clarity” are used. He refers to
Article 11 of the Constitution of Japan which states that:
The fundamental human rights guaranteed to the people by
this Constitution shall be conferred upon the people of
this and future generations as eternal and inviolable rights.
Section 29, however, does not appear to be lacking in clarity,
having regard to the language usually employed in similar statutory
instruments. The legislative power of Parliament described in
section 29(1) is restricted by section 29(2) so unequivocally that
any law made in contravention of that subsection is declared by
section 29(3) to be void. Section 29(4) states that Parliament
“in the exercise of its powers under this section” may amend or
repeal any provision of the Constitution with the prescribed
majority; “its powers under this section” being clearly defined by
the preceding subsections (1), (2) and (3).
The Privy Council’s obiter dictum appears also to be borne
out by historical fact. Some of the documents relating to the
transfer of power have not yet been released for public inspection.
But D.J.Morgan, who a few years ago was provided with full access
to all official documents when he examined the history of colonial
development, makes it quite clear that the provision of “lasting
safeguards for the interests of minorities” was the predominant
factor in the negotiations that preceded the 1946 Constitution and,
3
indeed, Independence. The intention expressed in the 1943
Declaration to reserve bills which “have evoked serious opposition
by any racial or religious community and which in the Governor’s
Ibralebbe v. The Queen (1963) 65 N.L.R. 433, at 443.
H.L.de Silva, Some Reflections on the Interpretation of the
Constitution of Ceylon and its Amendment”, (1970) Journal of Ceylon
Law, 238, at 249.
D.J.Morgan, The Official History of Colonial Development,
Vol.5 (London: Macmillans, 19&0), pp. 68-77.
67
opinion are likely to involve oppression or unfairness to any
community”; the requirement that any constitutional scheme
prepared by the Ministers should be approved by three-quarters
of all the members of the State Council; the specific direction
to the Soulbury Commission to hold discussions with minority
groups; and the view expressed by the Colonial Affairs Committee
even after the Soulbury Report had been presented that “the
Sinhalese majority, whose power under a completely self-governing
constitution would be predominant, has yet to prove their
willingness and capacity to operate self-governing institutions
in collaboration with the minorities, with due regard to their
rights and susceptibilities”, underlie the importance attached
to this factor. According to Morgan, minority safeguards were to
be included in the subjects specified for formal Agreements
between the two Governments as a condition precedent to Independence;
an insistence which the British Government agreed to drop upon
being satisfied that “the rights of minority groups were safeguarded
in the Constitution”. Two of these safeguards were the Senate
which was intended to impede precipitate legislation and to handle
inflammatory issues in a cooler atmosphere, and the Public Service
Commission which was designed as an impartial and authoritative
body, free from partisanship; the most important safeguard was
undoubtedly section 29(2). It was clearly the basis upon which
Independence was sought and granted.
Be that as it may, even if Lord Pearce’s observations were
purely obiter and not expressed after a full consideration of the
relevant facts, it nevertheless gave some indication to Ceylonese
legislators of the perils that lay in the path of those who
ventured to revise the Constitution in the traditional manner.
The Need for a Bill of Rights
Two events which took place in the early 1960s underscored
the need for more comprehensive guarantees of individual liberty
than were to be found either in section 29 of the Constitution or
in existing law. The pressure of public opinion in the one case,
and the strength of judicial activism in the other, helped to carry
the day. But these were ephemeral forces and could hardly be relied
upon as effective protective mechanism against the arbitrary
reach of state power.
68
The Death Penalty (Special Provisions) Bill
On 18 January 1962, a bill was tabled in the House of Representatives “to impose the death penalty upon offenders convicted of
murder, abetment of murder, conspiracy to murder, abetment of
suicide, and other like offences, for which capital punishment was
prescribed by law prior to the Suspension of Capital Punishment Act,
No.20 of 1958, and to make provision for the execution of offenders
so convicted, and to make special provision for the offenders
convicted of conspiracy to murder the late Prime Minister in Case
No.S.C.8/M.C.Colombo 23838A and in regard to further appeals in
that case”.’*’ The sequence of events leading to this bill was
evident from its preamble:
Whereas according to the Penal Code the punishment
prescribed for the offences of murder, abetment of
murder, conspiracy to murder, abetment of suicide and
other like offences was, prior to the Suspension of
Capital Punishment Act, No.20 of 1958, death:
And whereas by that Act the punishment for the said
offences was altered for a period of three years from
9 May 1958 to rigorous imprisonment for life:
And whereas the Prime Minister of this country was
assassinated on 25 September 1959:
And whereas Parliament thereafter decided to reimpose
the death penalty for the said offences with the object
that, among other things, the persons responsible for
that assassination should suffer capital punishment:
And whereas the Suspension of Capital Punishment
(repeal) Act, No.25 of 1959, was enacted by Parliament
for that purpose:
And whereas three persons, namely, Mapitigama
Buddharakkita Thera, Hemachandra Piyasena Jayawardene
and Talduwe Somarama Thera, were found guilty by the
unanimous verdict of the jury of the offence of
conspiracy to murder the late Prime Minister and were
duly sentenced to death in Case No.S.C.8/M.C.Colombo
23838A:
And whereas the Court of Criminal Appeal has by its
judgment on the appeal in that case upheld that verdict
and the convictions against the said offenders:
But whereas the Court of Criminal Appeal has also
by its judgment on that appeal set aside the sentences
of death imposed on the said offenders in respect of
the offence of conspiracy to murder the late Prime
Minister and substituted sentences of imprisonment for
Ceylon Daily News, 19 January 1962.
69
life on the ground that the Suspension of Capital
Punishment (Repeal) Act, No.25 of 1959, in so far
as it was retrospective, did not relate to the
offence of conspiracy to murder:
And whereas it has now become necessary to declare
the law according to the real intention of Parliament
as aforesaid and to validate the sentences of death
pronounced by the Supreme Court for the offence of
conspiracy to murder in Case No.S.C.8/M.C.Colombo
23838A, and to make provision for the due execution
of such sentences notwithstanding the judgment of
the Court of Criminal Appeal.
An act of faulty draftsmanship had failed to give effect to the
true intention of Parliament. But, as the Cabinet asserted:
No legal technicality will be allowed by this Government
to stand in the way of justice being meted out to the
persons found guilty of the crime of assassinating the
Prime Minister of the country.
It stressed that:
It is the declared policy of the Government that the
persons responsible for the assassination of the late
Prime Minister shall suffer the extreme penalty.
Accordingly, the bill sought to provide that:
The punishment prescribed for these offences “shall be deemed
at all times to have been, and to be, death” in respect of
offenders convicted after the date of the repeal of the suspending
Act (i.e. 2 December 1959) “whether such offences were committed
before or after that date”.
The sentences of death pronounced by the Supreme Court on the
three persons “shall be deemed at all times to have been, and to
be, valid notwithstanding the judgment of the Court of Criminal
Appeal which is hereby declared to have been, and to be, null
and void to the extent that such judgment purports to substitute
sentences of imprisonment for life in lieu of the sentences of
death aforesaid”.
Section 309 of the Criminal Procedure Code, which prescribed
the mode of execution of sentence of death “shall notwithstanding
that judgment or any other law apply to the execution of the
sentences of death aforesaid”.
No suit or proceeding shall lie against any person in connection
with the implementation of its provisions in their application
to Case No.S.C.8/M.C.Colombo 23838A.
Statement issued by the Cabinet, Ceylon Daily News, 25 January 1962.
70
No person or officer shall be liable to any civil or criminal
proceedings for any act done for the purpose of giving effect
to its provisions in their application to Case No.S.C.8/M.C.
Colombo 23838A.
Its provisions shall have effect notwithstanding anything in
any other law, and shall not be called in question in any court.
The government parliamentary group unanimously approved the bill
“and complimented the Cabinet” for introducing it. In the course
of the discussion, the members also suggested that the Government
should introduce legislation to abolish appeals to the Privy Council.’‘ Public reaction was swift and predictable. There was almost universal revulsion. The entire Opposition was united in condemnation of it. Dudley Senanayake (UNP) described it as “the most vindictive, unconstitutional and undemocratic piece of legislation 2 ever to be presented in a democratic country in the world”. Colvin R.de Silva (LSSP) called it “murder by statute”. The Conmunist Party urged that “in seeking to hang Buddharakkita and /| Jayawardene, the Government should not hang democracy in the process”. Local authorities throughout the country passed resolutions calling for the withdrawal of the bill. They were joined by trade unions and public interest bodies. The General Council of Advocates, with only three dissenting votes, resolved that the bill was “an outrage on justice”; H.V.Perera,Q.C., the doyen of the Bar and one of Ceylon’s most respected lawyers, thought that it “debased the whole of society”, while D.S.Jayawickrama,Q.C., another a-political leader of the Bar, described it as “judicially indefensible, wicked in design and inhuman in its intention”.’ Editorial comment
in the national newspapers expressed the same sentiments. The Times
of Ceylon pointed out that the bill “savours strongly of blind and
unthinking vengeance, a sort of lynching by legislative act”. It
reminded the Government that there would be no shame in its
withdrawal: “The best of governments can and do make mistakes in
Ceylon Daily News, 19 January 1962.
Ibid, 22 January 1962.
Ceylon Observer, 21 January 1962.
Ceylon Daily News, 22 January 1962.
Times of Ceylon, 25 January 1962.
Ibid.
71
haste, and it is only wisdom to rectify a blunder at the earliest
possible opportunity”. It was only a matter of time before this
national feeling began having an effect on Government MPs. On
23 January, the Parliamentary Secretary to the Ministry of Finance,
George Rajapakse, wondered publicly whether “any man’s life was
safe today”D.A.Rajapakse, another southern province MP,
2
announced that he was unable to support the bill. On 24 January,
the Cabinet announced that since one of the accused had informed
the Government of his intention to appeal against his conviction
to the Privy Council, “the Government does not propose to have the
bill debated upon at once”. In fact, the bill was never taken up
for debate and had disappeared altogether from the order paper
when Parliament reconvened after the next prorogation.
Restrictions on travel abroad
In August 1964, the Prime Minister, Mrs.Bandaranaike,
clarified her Government’s policy, which had been operative since
4
July 1962, in regard to travel abroad. Ceylonese wishing to travel
were classified into: (1) those to whom exchange was released for
travel and maintenance abroad, and (2) those whose travel expenses
and costs of maintenance were met from funds provided by foreign
governments, agencies or individuals.
A person in the former category, usually an official or a
businessman (since exchange was not released for social or
educational purposes) will be issued with a passport valid for a
single journey and for travel only to that country for which
exchange had been released and to the countries en route. If he
was already in possession of a passport valid for travel to several
countries, the validity of that passport will be appropriately
modified. This had been done in the case of the President of the
Senate when he left on a state visit to the USSR; all endorsements
to other countries being deleted. The Prime Minister disclosed
that foreign missions in Ceylon had been informed that the Ceylon
Government would consider it “an unfriendly act” if holders of
Ceylon passports were permitted, in the course of their travels
Ceylon Observer, 24 January 1962.
Ibid.
Ceylon Daily News, 25 January 1962.
Statement made by the Prime Minister in the Senate on
4 August 1964, Ceylon Today, Vol.XIII, No.8, pp. 9-12.
72
abroad, to enter their countries on temporary visas when their
passports lacked the appropriate validation.
Any invitation to a person in the second category was
required to be addressed to the Government. Any such invitation
which named the individual concerned or stipulated that the
selection should be made from any specific organisation in
Ceylon, will not be entertained. The Prime Minister explained
that if, for instance, a writers association abroad wished to
invite a writer of repute from Ceylon to attend a conference,
“surely the government of Ceylon is in a better position than a
foreign agency to select a writer of repute who will bring credit
to Ceylon in the country concerned”. The rationale for these
restrictions was simple:
If these safeguards are not applied assiduously, we
lay ourselves open to the possibility of the subversion
of our citizens to serve foreign interests and of the
weaning away of our citizens from their loyalty to
their motherland. In a small country like our’s,
situated as we are, competing forces can wage and,
in fact, are waging, a strong battle to capture the
minds of our people. The device of the ‘pre-paid
ticket’ is a powerful weapon, that can be used by
foreign elements to win over the loyalties of our
people. 1
A veritable wall was constructed along the sandy beaches of Ceylon
to protect the Ceylonese from the evils that lay beyond the waters
2
of the Indian Ocean. To maintain the integrity of this “wall”,
airline and shipping agencies were prohibited from issuing any
travel tickets unless “clearance” had first been granted by the
Ministry of Defence and External Affairs. This clearance usually
took the form of an appropriate endorsement on the passport.
In October 1964, the general secretary of the United Nations
Association of Ceylon received an invitation from its parent body,
the Geneva-based World Federation of United Nations Associations,
to attend a seminar in Kuala Lumpur. All expenses involved in his
participation were being met by WFUNA. He applied to the Ministry
for a certificate of clearance and was notified that the clearance
required could not be granted. He then applied to the Supreme Court
Ibid, at p.10.
Douglas J probably contemplated this type of governmental
action when he observed that if it is argued that travel may increase
the likelihood of illegal events happening, “so does being alive”.
See Aptheker v. Secretary of State, 378 US 500.
73
for a writ of mandamus on the Permanent Secretary, claiming that
as a free citizen he was entitled to leave his country and return
without let or hindrance; the Permanent Secretary had, maliciously
and for reasons best known to himself and which he had chosen not
to disclose, refused to grant that clearance. Whether mandamus
lay was a matter of some considerable doubt since “clearance” was
unknown to the law and was an executive device which was being
applied without legal authority therefor. But, upon ascertaining
that this was indeed the position, T.S.Fernando J, who presided
over the three-judge bench, expressed in such strong terms the
Court’s disapproval of the attitude of the executive and insisted
that no restrictions other than those warranted by law should be
placed on a citizen’s freedom of movement, that Crown Counsel
assured, after a brief adjournment, that the necessary clearance
would be granted forthwith.’*’
A few weeks later, a lawyer member of the United National
Party who had been nominated by his party to attend a legal
conference in Instanbul, with all expenses involved being met by
the host organisation, was refused clearance to leave the island.
As soon as he invoked the writ jurisdiction of the Supreme Court,
the executive caved in and granted the clearance. When Sri Skanda
Rajah J insisted on knowing why this illegal practice was being
continued, Crown Counsel announced that the Government had decided
that in future there would be no legal bar to anyone leaving the
country if he had a valid passport and a travel ticket. The Court,
however, as an expression of its strong disapproval of the
repetition of an executive excess, ordered the Permanent Secretary
2
to pay the petitioner the costs of the application.
In each instance, the Supreme Court had intervened to redress
a wrong. But had the State insisted on a considered judgment,
after full argument, it is unlikely that, in the absence of a
proper legal enunciation of the freedom of movement, the Court
would have been able to base an order on the informal regime of
rights which it was seeking to observe and apply.
Aseerwatham v. Permanent Secretary to the Ministry of
Defence” and External Affairs, Journal of the ICJ, Vol.VI, p.319.
Gooneratne v. Permanent Secretary to the Ministry of Defence
and External Affairs, ibid., p.320.
74
The Response of Political Parties to the Demand
for a Bill of Rights
The demand for a bill of rights gathered momentum in the late
1960s. But apart from small civil rights interest groups, this
agitation was largely confined to minority ethnic communities and
was identified with the demand for greater recognition of minority
rights. Ten years earlier, all the political parties had responded
enthusiastically to Bandaranaike1s proposal to incorporate a bill
of rights in the Constitution. Now they approached the subject
very warily. This was particularly evident when, in 1968, the
United Nations Association invited representatives of the major
political parties to express their views on the question whether
fundamental rights should be incorporated in the Constitution.’*’
M.Sivasithamparam (Tamil Congress) and M.Tiruchelvam (Federal
Party) were both agreed that section 29 of the Constitution was
“absolutely inadequate”. The latter, who was then a Minister in
the Government, in a very emotional speech declared that the only
protection for the minorities against the “despotism of the majority
community” lay in the incorporation of fundamental rights in the
Constitution. Justice Minister A.F.Wijemanne (United National
Party), who spoke on behalf of the Prime Minister, pointed out that
many, if not all, the fundamental rights were already in existence
in the ordinary statute law; he wondered whether it would not be
wiser to leave them there. He concluded, however, by observing
that:
In the circumstances of our country, where there exist
racial, religious and linguistic minorities, it is the
cherished desire of all lovers of freedom, justice and
equality, that there should be a declaration of fundamental rights in the Constitution.
Presumably, his party was included in that category, although he did
not say so specifically.
The Opposition representatives believed that the agitation
for a bill of rights had developed upon a misconception, namely,
that fundamental rights were synonymous with minority rights.
Pieter Keuneman (Conmunist Party) questioned the relevance, in the
Ceylonese context, of the Universal Declaration of Human Rights
The proceedings of this meeting were recorded on tape by
the author, and these tapes constitute the source material for
this section.
75
which was “not the acme of wisdom”, but the result of hard bargaining;
the right to work and the right to leisure were significant omissions,
while the right to property was inconsistent with socialism. ^
Felix Dias Bandaranaike (Sri Lanka Freedom Party) believed that
the “fundamental right of free elections at periodic intervals” was
the “basic safeguard against tyranny”; it was the only right that
needed to be enshrined in a constitution. Colvin R.de Silva (Lanka
Sama Samaj Party) was deliberate and emphatic: he could not conceive
of rights being enshrined in a constitution:
Constitutions are made in terms of the stage of development at which any given society or country has
arrived. In terms of that stage of development it
looks upon things, and for any generation of people
to imagine that it can so completely project itself
into the infinity of the future so as to be able to
decide in its own generation that it will constrain
a future generation or generations for ever within
the confines of its own postulates is to make the
mistake of thinking that any human collectivity is
the equivalent of the divinity. It is not.
According to him, one consequence of placing a statement of fundamental rights in a constitution and contending that “it must be
eternally inviolate” is to say that “the only means of changing
that statement will be successful revolution”. The other consequence was equally objectionable:
If you place a declaration as being fundamental, then
you have to accept an authority outside the makers
of laws with the task of deciding whether the law is
in fact a law. Whether we have faith in the Supreme
Court is not the issue. Do we want a legislature
that is sovereign or do we not ? That is the true
question. If you say that the validity of a law
has to be determined by anybody outside the lawmaking body, then you are to that extent saying that
your law-making body is not completely the law-making
. body.
In his view, it was “absolutely essential” that “this country at
this stage of development” had a legislature that was sovereign;
“it must be in a position no different from the Parliament of
England”.
Fundamental rights cannot be regarded as the postulates of
a particular generation. The right to life, liberty or equality,
the freedom of expression, assembly or association, does not
He made no reference, however, to ICCPR which does not
include the right to property.
76
become less relevant as society continues to transform, whether
for better or for worse. Dr.de Silva believed that the aim of all
governments must be “to provide the general framework within which
the individual personality can most completely flower”. These
rights surely are very necessary components in the constitution
of that framework. Even the right to property, in the limited
sense of encompassing food, clothing and shelter, the tools or
implements of a trade or profession, and the fruits of one’s labours,
appear to be a no less material component.
Dr.de Silva’s second objection was based on the assumption
that a sovereign legislature, fashioned on Westminster, would
thrive on Ceylon’s soil. This was a questionable assumption,
having regard to the fact that neither constitutional conventions
nor a consensus between the government and the people or between
opposing political parties existed in any real sense in Ceylon
to temper the exercise of legislative power. As the presidential
commission which investigated whether a bill of rights should be
incorporated in the Constitution of Tanzania noted:
The process of government in the United Kingdom provides
a striking example of the force of a national ethic in
controlling the exercise of political power. A government in Britain with a majority of one seat in Parliament
could legislate to abolish elections, detain political
opponents without trial, and establish a censorship of
the press, radio and television. Indeed, most of these
things were done by Parliament when the British people
stood on the brink of disaster in the Second World War.
They are not done in peacetime; not because there is
anything in the law to prevent a government acting in
this way but because they are unthinkable. In other
words, there is a consensus between the people and their
leaders about how the process of government should be
carried on. It is on this that the traditional freedoms
of the British people depend. 1
In the absence of these informal restraints, express constitutional
limitations would appear to be necessary.
Twenty years after the 1946 Constitution had cane into force
it was clear that time had run out in so far as the inclusion in it
of a bill of rights was concerned. From the experience of India
and that of other colonies which, from the mid-fifties, began
graduating into statehood within the Commonwealth, it would appear
The United Republic of Tanzania: Report of the Presidential
Commission on the Establishment of a Democratic One Party State
(Dar Es Salaam: Govt. Printer, 1965), para. 104.
77
that Ceylon lost its best opportunity of having a genuine,
enforceable bill of rights when in 1946 it received a constitution
which did not contain such mechanism. There is no doubt that,
on the one hand, had the minority comnunities so demanded or
the Board of Ministers so provided; or on the other, had the
Colonial Office so insisted or the Soulbury Comnission so
recorrmended, a constitution with an enforceable bill of rights
would have been accepted by the State Council. That opportunity
passed by, virtually by default. The next opportunity presented
itself when in 1959 the Joint Select Committee of Parliament
resolved unanimously, influenced no doubt by the Indian
experience, to amend the Constitution to include an enforceable
chapter on fundamental rights. Apart from the consensus which
had been reached between political and interest groups on this
subject in the euphoric atmosphere of a social revolution,
Bandaranaike himself had an abiding commitment to the twin
concepts of democracy and socialism, to the rule of law and
social justice. But, as has already been noted, fortuitous
circumstances were to arise to let this opportunity too pass by.
78
The 1972 Constitution
The manifesto of the United Front of the Sri Lanka Freedom
Party, the Lanka Sama Samaj Party and the Communist Party stated,
inter alia:
We seek your mandate to permit the members of Parliament
you elect to function simultaneously as a Constituent
Assembly to draft, adopt and operate a new Constitution.
This Constitution will declare Ceylon to be a free,
sovereign and independent Republic pledged to realise
the objectives of a socialist democracy; and it will also
secure fundamental rights and freedoms to all citizens.
At the general election held on 27 May 1970, a remarkably high poll
of 85.2 per cent produced the following result:
TABLE 15
THE 1970 GENERAL ELECTION RESULT
Party Seats
won
Votes
polled
Percentage
polled
Sri Lanka Freedom Party3 91 1,812,849 36.6
Lanka Sama Samaj Party 19 433,224 8.7
United National Party 17 1,876,956 38.0
Federal Party 13 245.747 5.0
Communist Party 6 169,199 3.4
All-Ceylon Tamil Congress 3 115,567 2.3
Independents 2 225,559 4.6
Source: Ibid.
a. The SLFP, LSSP and CP campaigned together on the basis of
a no-contest electoral agreement, under the name “United Front”.
In terms of the agreement reached between the three parties, the
United Front formed a government under Mrs.Bandaranaike and, with
a parliamentary majority of more than three-quarters in the House
of Representatives, pledged itself to implement the Common programme. On 14 June 1970, the Governor-General in his Speech from
the Throne reminded members that:
By their vote democratically cast the people have given
you a clear mandate to function as a Constituent Assembly
to draft, adopt and operate a new constitution which will
Joint Election Manifesto of the United Front, 1970
(Colombo: M.D.Gunasena S« Co.Ltd, 1970).
79
declare Ceylon to be a free, sovereign and independent
Republic pledged to realise the objectives of a socialist democracy including the securing of the fundamental
rights andJreedoms of all citizens. In terms of this
mandate, My Government calls upon you to draft and adopt
a new constitution which will become the fundamental
law of this country, superseding both the existing
Constitution in the drafting of which the people of
Sri Lanka had no share and also other laws that may
conflict with the new Constitution you will adopt. -*■
On 24 June 1970, the Address of Thanks was passed in the House of
Representatives without a division.
The Constituent Assembly
On 11 July 1970, the Prime Minister addressed a letter to
2
each of the 157 members of the House of Representatives inviting
3
them to attend a meeting at the Navarangahala, Royal Junior
School, Colombo on 19 July to consider and adopt the following
resolution:
We the Members of the House of Representatives in
pursuance of the mandate given by the People of Sri
Lanka at the General Election held on the 27th day
of May 1970 do hereby resolve to constitute declare
and proclaim ourselves the Constituent Assembly of
the People of Sri Lanka for the purpose of adopting
enacting and establishing a Constitution for Sri
Lanka which will declare Sri Lanka to be a free
sovereign and independent Republic pledged to realise
the objectives of a socialist democracy including
the fundamental rights and freedoms of all citizens
and which will become the fundamental law of Sri
Lanka deriving its authority from the People of Sri
Lanka and not from the power and and authority
assumed and exercised by the British Crown and the
Parliament of the United Kingdom in the grant of
the present Constitution of Ceylon nor from the said
Constitution and do accordingly constitute declare
and proclaim ourselves the Constituent Assembly of
the People of Sri Lanka and being so constituted
appoint the 29th day of July at 10.00 a.m. as the
Ceylon Today, Vol.XVIII, Nos.1-6, p.22.
The 157 members included the six nominated members. This
appeared to conflict with the manifesto which sought a mandate to
permit the members “you elect” to function as a constituent
assembly. Their inclusion, however, may be justified on the ground
that they represented important interests which were otherwise “not
represented” or were “inadequately represented” in the House and,
therefore, in the constituent assembly. These included three
minority castes among the Sinhalese and a “depressed community”
among the Tamils, in addition to the Indian Tamil community.
“The new theatre”.
80
date and time when the Constituent Assembly shall
next meet in the chamber of the House of Representatives for carrying out the said mandate under
the Presidentship of Wanniarachige Don Stanley
Tillekeratne M.P. or in his absence of Ibrahim
Adham Abdul Cader M.P. and to consider business
introduced by or on behalf of the Minister of
Constitutional Affairs. 1
After some hesitation, both the United National Party and the
Federal Party decided to respond to the Prime Ministers’s
invitation. The latter were perhaps influenced to do so by an
appeal which the Prime Minister broadcast on 15 July in which
she promised that the new constitution would:
. . . serve’to build a nation ever more strongly
consciousness of its oneness amidst the diversity
imposed on it by history. Though there are among
us several races such as Sinhalese, Tamils, Moors,
Burghers, Malays and others; and several religious
groups such as the Buddhists, Hindus, Christians
and Muslims, we are one nation. 2
Indeed, if the Government was so inclined, the opportunity was
about to present itself to resolve finally the grievances of the
Tamil minority community. The UNP, on the other hand, was
concerned that the new constitution would be seeking to commit
itself to the objectives of a socialist democracy, which they
equated with increasing state control and governmental interference in the private sector. They also questioned the validity
of the mandate which, they argued, was from less than 50 per cent
3
of the electorate. Finally, however, the Leader of the Opposition,
J.R.Jayewardene,^ having stated the objections, expressed himself
thus in the discussion on the resolution:
If, however, the victors and the vanquished – the
vanquished on this side – in a Legislature powerless
to replace the source of its own authority agree
to make common cause in enacting a new basic law by
Birth of a Republic (Colombo, Dept, of Govt.Printing, 1972),
p.7.
Ceylon Daily News, 16 July 1970.
The United Front polled 2,415,302 out of a total of 4,949,616
votes; i.e. 48.8 per cent.
The leader of the UNP was Dudley Senanayake, After the
defeat of his Government, he declined to serve as Leader of the
Opposition and agreed to his deputy performing that task. It soon
became apparent that there was a sharp divergence of opinion between
Senanayake and Jayewardene on many matters, including the question
of participating in the constituent assembly. Before the work of
81
means of a ‘legal revolution’, there is no law
that says you cannot do so. The law we create
together if accepted by the people will become
the full expression of the hopes, desires and
aspirations of the present generation. 1
2
On 21 July 1970, the resolution was passed unanimously.
The unanimity displayed at the Navarangahala and the sentiments expressed there by the representatives of all the political
parties were most heartening as the business of constitution
making got under way. But the indications as far as the preparation of an effective bill of rights was concerned were scmewhat
less encouraging. What was it that the Constituent Assembly was
committed to achieve ? The manifesto promised a constitution
which will “secure fundamental rights and freedoms to all citizens”.
The Speech from the Throne anticipated a constitution which will
declare Ceylon to be a republic “pledged to realise the objectives
of a socialist democracy including the securing of the fundamental
rights and freedoms of all citizens”. The resolution establishing
the Constituent Assembly aspired to a republic “pledged to realise
the objectives of a socialist democracy including the fundamental
rights and freedoms of all citizens”. The mandate was unmistakably
clear: to secure fundamental rights and freedoms to all citizens.
The mission was becoming obscured, and appeared to be imperceptibly
shrinking in both scope and content.
That some doubt should exist as to whether a bill of rights
designed to secure the fundamental rights and freedoms of all
citizens would in fact be produced was inevitable, although few
gave expression to it at the time. In the first place, the Constituent Assembly assumed the authority not only to draft and adopt
a new constitution, but also to operate it. In other words, the
draftsmen were also to be the beneficiaries. It was not intended
that the constitution drafted by the Constituent Assembly should be
submitted to the people for approval; nor was it intended that once
of the constituent assembly was completed, Senanayake attempted to
expel Jayewardene from the UNP; the latter reacted by obtaining an
injunction from the District Court. In April 1973, on Senanayake’s
death, Jayewardene was elected leader of the party.
Proceedings of a meeting of Members of the House of Representatives on 19 July 1970 (Colombo: Dept, of Govt.Printing, 1970),
col.57.
For a detailed description of the procedure adopted by the
constituent assembly, see Cooray, Constitutional Law, ch. 3.
82
the constitution had been drafted and adopted by the Constituent
Assembly, it would be brought into operation following a general
election held in terms of that constitution. In either of these
eventualities, the people would have had an opportunity of
pronouncing judgment upon the work of their delegates; and the
delegates, in turn, would hardly have failed to consider that
prospect. A bill of rights is necessarily a limitation on both
legislative and executive power. The members of the Constituent
Assembly in whom would be vested both legislative and executive
power under the constitution which they were drafting, had to
determine what limitations ought to be placed on the exercise by
them of that power. It was as if at Runnymede, almost to the day
755 years earlier, the Barons had invited King John to draft the
Magna Carta. Secondly, the resolution stated explicitly that
the Constituent Assembly would “consider business introduced by or
on behalf of the Minister of Constitutional Affairs”. In other
words, the Government would take the initiative at all times in
guiding the Assembly in its deliberations, and it would do so
through a Minister specially appointed for that purpose. The
constitutional proposals would be government proposals approved
by the Cabinet and therefore in accord with its own political
philosophy.
A 17-member Steering and Subjects Comnittee, consisting of
representatives of all the political groups in the Assembly but
with an overwhelming government majority, was established on
12 August 1970. Its function at that stage was to prepare resolutions embodying the basic principles according to which the
constitution was to be drafted and to cause such resolutions to
be placed on the order book in the name of the Minister. Its
personnel were:
Sirimavo Bandaranaike (SLFP): Chairman
M.Senanayake (SLFP)
T.B.Illangaratne (SLFP)
B.Mahmud (SLFP)
F.R.Dias Bandaranaike (SLFP)
H . Kobbekaduwa (SLFP)
T.B.Subasinghe (SLFP)
G.Rajapakse (SLFP)
T.B.Tennekoon (SLFP)
See S.Nadesan, Some Comments on the Constituent Assembly and
the Draft Basic Resolutions (Colombo: Nadaraja Press, 1971).
83
N.M.Perera (LSSP)
Colvin R.de Silva (LSSP)
P.G .B.Keuneman (CP)
J.R.Jayewardene (UNP)
IXidley Senanayake (UNP)
S.J.V.Chelvanayakam, Q.C. (FP)
C.Arulampalam (TC)
C.X.Martyn (Ind.).
This committee was most unrepresentative of the people on whose
behalf it was seeking to act. It was a predominantly SinhaleseBuddhist-Goyigama body (ten of its members belonging to this
dominant group), with more Kandyans than Low-country Sinhalese.
Only two caste groups among the Sinhalese were represented: Goyigama and Salagama; there was no Catholic member at all. The
Indian Tamil community was also not represented although A.Aziz,
leader of the Ceylon Workers Congress, was a nominated government
MP representing their interests in Parliament. Twelve of its
members were Ministers of the Cabinet; the Tamil Congress and
Independent representatives were also members of the government
parliamentary group. Its composition, therefore, assured quick
and easy approval for the basic resolutions placed before it by
the Minister of Constitutional Affairs.
The draft basic resolutions were initially prepared by a
Drafting Committee of thirteen (including four non-lawyers) which
functioned in the Ministry of Constitutional Affairs under the
chairmanship of the Minister.^ These were then independently
vetted by a group of senior SLFP Ministers and by the leadership
of the LSSP and the CP. They were channelled through a 12-member
2
Ministerial Sub-Committee to the Cabinet for formal approval
before being tabled at a meeting of the Steering and Subjects
3
Committee. There could have been no doubt that, as the Minister
The lawyers in the drafting committee were drawn from both
the official and unofficial Bar, and included lawyers serving the
Government such as the Director of Cabinet Affairs and the Permanent Secretaries to the Ministries of Information and Justice. The
non-lawyers included a professor of political science and a linguist.
This sub-committee consisted of the 12 Ministers who were
members of the steering and subjects committee.
According to M.S.Alif, Secretary to the Cabinet, there were
in all: 46 meetings of the constituent assembly; 21 meetings of the
steering and subjects committee; 114 meetings of eleven sub-committees
of the assembly at which nearly 3000 memoranda from the public were
considered; 18 meetings of the cabinet; 22 meetings of the cabinet
committee on the constitution; and 278 meetings of the drafting
committee: Birth of a Republic, p.36.
84
himself claimed, the basic resolutions were “completely in accord
with the United Front and Government policy”.^ It could not have
been otherwise since the Constituent Assembly was conmitted to
drafting a constitution which would declare Sri Lanka to be a
republic “pledged to realise the objectives of a socialist democracy”. To accommodate this ideological objective, the Government
believed that the scope of a bill of rights would necessarily have
to be circumscribed. In a letter to the Minister of Constitutional
Affairs, the Prime Minister expressed herself thus:
I am myself of the view that there should be no impediment in the new Constitution to the realisation of
socialistic objectives. If it is anticipated that the
inclusion of any particular fundamental rights will
stand in the way of implementing socialistic policies,
decisions should be taken in regard to each one of
such fundamental rights; that is, as to whether a
particular right should find a place in the Constitution,
and if so, whether it should be circumscribed in any
way. 2
She appeared to be echoing an objection expressed in Tanzania by the
presidential commission on the establishment of a democratic oneparty state to the inclusion of a bill of rights in the constitution
of that country:
Tanganyika has dynamic plans for economic development.
These cannot be implemented without revolutionary
changes in the social structure. In considering a
Bill of rights in this context we have had in mind
the bitter conflict which arose in the United States
between the President and the Supreme Court as a
result of the radical measures enacted by the
Roosevelt Administration to deal with the economic
depression of the 1930s. Decisions concerning the
extent to which individual rights must give way to
the wider considerations of social progress are not
properly judicial decisions. They are political
decisions best taken by political leaders responsible
to the electorate. ^
Ceylon Daily News, 18 January 1971. In fact, a three-party
committee for constitutional affairs under the chairmanship of Dr.
Colvin R.de Silva had already held 32 meetings before the United
Front manifesto was issued in 1970. This comnittee had discussed
several alternative proposals for a future constitution: Birth of
a Republic, p.36.
Letter dated 9 December 1970 (unpublished). The full text
of this letter is reproduced in Appendix 1.
Op.cit., para. 103.
85
Whether or not a particular right should be circumscribed or
excluded in order that the realisation of socialist objectives
could proceed unimpeded would depend very much on one’s conception
of a socialist democracy. S.W.R.D.Bandaranaike, who founded the
Sri Lanka Freedom Party and whose policies the United Front Government professed to follow, had no difficulty in distinguishing a
socialist democracy. Addressing the Convocation of the University
of Ceylon on 8 November 1957, he said:
There are experiments going on all over the world,
experiments in government: here a fascist state;
there a communist state; here a semi-fascist state;
there a semi-communist state; and various varieties
of democracies ranging from capitalist democracies
such as that of the United States to liberal democracies such as that of England to socialist democracies such as those of the countries of northern
Europe. 1
His concept of socialism, therefore, was the concept of socialism
as understood in the welfare states of northern Europe and not the
Marxist concept of socialism adopted in eastern Europe. Addressing
the first annual conference of his party in December 1952, he said:
As the term ‘democracy’ is very often loosely used,
it may be as well for us to have a clear idea of what
it really means. It consists of an agglomeration of
freedoms – not only the individual freedoms in the
classic definitions, e.g. freedom of speech, freedom
of expression and public meeting, freedom from
arbitrary arrest, freedom of the press, and freedom
of the vote, but also certain collective freedoms
recently enunciated, e.g. freedom from fear, freedom
from ignorance, freedom from disease, freedom from
want; in a word, freedom to be really free. That is
the true spirit of democracy and this is the democracy
for which our party stands. 2
Addressing the Indian Council of World Affairs on 4 December 1957,
he clarified his thoughts further:
Coming to the modem conception of democracy
(democracy is defined in various ways today), even
the totalitarian regimes of the communist countries
claim that their’s is the true democracy; they claim
that democracy, as we know it, is not true democracy, that their’s is the true democracy because
the people really rule. But if I may say so, our
conception of democracy is somewhat different.
Bandaranaike, Speeches, p.333.
Ibid., p.154.
Ibid., p.407.
86
Perhaps the most comprehensive description of
modern democracy in effect would be that it
consists of the combination or the agglomeration of a number of individual liberties and
collective liberties. 1
When on 5 March 1959, shortly before he was assassinated, he
actively sponsored a draft bill of rights in the Joint Select
Committee of Parliament, he did not believe that that would be
an impediment to the realisation of the objectives of a socialist
democracy to which he, too, was committed; nor did he consider it
necessary to exclude or circumscribe a particular fundamental
2
right in any way.
Why then did Mrs.Bandaranaike concede that a particular
right may be excluded or circumscribed ? Her letter when examined
in its entirety tends to show that already the Prime Minister and
her Minister of Constitutional Affairs were on divergent paths,
and her concession on this point appears to have been in the nature
of a sop in exchange for concessions from him on more basic and
crucial political issues. The answer, therefore, lies in the
dominant personality of the doctrinaire politician she chose to
be her minister in charge of constitutional affairs. This was the
third reason for doubting whether an enforceable bill of rights
would eventually find its way into the new constitution. When
the Cabinet was appointed immediately after the general election,
no ministry of constitutional affairs was created, nor was that
subject assigned to any other ministry. The 1946 Constitution
required the Minister of Justice, to whom logically the subject
ought to have been assigned, to sit in the Senate. Not being a
member of the House of Representatives, he would have had no seat
in the Constituent Assembly. In the Cabinet there were several
lawyers, at least three of whom had been in active practice until
they accepted ministerial portfolios: George Rajapakse, the SLFP
Minister of Fisheries; Felix R.Dias Bandaranaike, the SLFP
Minister of Public Administration, Local Government and Home
Affairs; and Colvin R.de Silva, the LSSP Minister of Plantation
Industries. It was the latter who, sometime in early June 1970,
Ibid., p.407.
For a fuller discussion of this aspect of his political
philosophy, see Nadesan, Comments, ch.2.
87
was sworn-in as Minister of Constitutional Affairs. Colvin R.de
Silva, who held a doctoral degree in history from the University
of London, was one of the country’s leading criminal lawyers. He
was also an avowed Trotskyite, having pioneered the left movement
in Ceylon in the depression-ridden ‘thirties. And he did not
believe in an entrenched bill of rights.”*’ As he himself told the
Constituent Assembly:
Those who asked for and received a section on fundamental
rights and freedoms in the coming constitution have
wanted it because they feel that some special protection
is needed in certain matters. Now, I may hold the
view that such protection is not necessary. I may also
hold the view that to endeavour to give such special
protection can be an obstruction in the way of the
progress of . . . an under-developed country. But at
the same time, in the light of the fact that a constitution when it is constructed should receive the widest
acceptance, it seemed much wiser that one should allow
those worries and anxieties that are still in the
country to prevail, but not to prevail absolutely.2
That the constitution, if it was to receive the widest acceptance,
should contain some statement of fundamental rights, is apparent
from the Minister’s response to Felix Dias Bandaranaike who
wondered whether it was necessary to spell out the fundamental
rights in detail in the basic resolutions:
Increasing public interest on this subject, apparent
from memoranda received from various sections of the
community and from newspaper reports of public
utterances, makes me think that it would hardly be
possible ultimately to resist the demand for fundamental rights. Like the language question, this
question too is charged with emotion: and here too
it would, I think, be wise to remove suspicion at
the earliest possible opportunity by spelling out
in the basic resolutions the content of the proposed
fundamental rights. 3
Finally, it became clear that the passage of government
business in the Constituent Assembly would be ensured by applying
the party whip. It is interesting to note that during the entire
discussion of the basic resolutions relating to fundamental rights
Supra, p.75.
Constituent Assembly Debates, 4 July 1971, col.2891.
Letters dated 4 November and 16 November, 1970. This
correspondence was circularised to the members of the cabinet
sub-committee on the constitution.
88
and allied matters, the only speaker on behalf of the government
was the Minister of Constitutional Affairs. An opposition member
who alleged that the party whip had been applied on a government
backbencher who had wanted to move certain amendments was not
contradicted either by the member concerned or by the party
leadership.^ Therefore, the members of the government parliamentary
group functioned in the Constituent Assembly as party members
shackled by the party manifesto. This was in sharp contrast to
the attitude adopted by Jawaharlal Nehru, former Prime Minister of
India who,in inviting members to participate in the Indian
Constituent Assembly, said:
I should like to make it clear, on behalf of my colleagues and myself, that we do not look upon the
Constituent Assembly as an arena for conflict or
for the forcible imposition of one viewpoint over
another. That would not be the way to build up a
contented and united India. We seek agreed and
integrated solutions with the largest measure of
goodwill behind them. We shall go to the Constituent Assembly with the fixed determination of
finding a common basis for agreement on all controversial issues. And so, in. spite of all that has
happened and the hard words that have been said, we
have kept the path of co-operation open and we
invite even those who differ from us to enter the
Constituent Assembly as equals and partners with
us with no binding commitments. It may well be that
when we meet and face common tasks, our present
difficulties will fade away. *
A suggestion that when the Constituent assembly met, the members
should not sit in their usual seats, but that they should sit in
alphabetical order, so that by their sitting together the necessary
psychological climate may be created for compromise and rapport,
3
was not accepted. Instead, they sat facing each other and
between them lay an unbridgeable gap which was particularly
evident when the highly charged and emotional issue of language
rights was taken up for discussion.
On 17 January 1971, 38 draft basic resolutions submitted
by the Minister of Constitutional affairs to the Steering and
Subjects Committee were published. Basic Resolution 5 dealt with
fundamental rights and freedoms. In February 1971, these
Gamini Dissanayake (UNP) made this reference to certain
amendments which were sought to be introduced by Prins Gunesekera
(SLFP): Constituent Assembly Debates, 10 June 1971, col.1298.
Quoted by Nadesan, Comments, p.19.
Ibid., p.7.
89
resolutions were unanimously adopted by the Steering and Subjects
Committee, and on 14 March 1971, the Constituent assembly began its
discussion of them. After a two-day debate, Basic Resolution 5
was adopted in the form in which it had been proposed by the
Minister. Amendments which were moved by the United National Party
and by the Federal Party were rejected. On 10 July 1971, the
Constituent Assembly adjourned in order that a draft constitution
in accordance with the basic resolutions might be prepared and
placed before the Assembly. A draft constitution was presented
by the Minister to the Steering and Subjects Committee on 24 December 1971, and to the Constituent Assembly on 29 December 1971.
It was published in the Ceylon Government Gazette on that day as
a government notification. On 3 January 1972, the Assembly met
and adopted the following resolution:
This Assembly is of the view that the Draft Constitution
prepared by the Steering and Subjects Committee which
was presented on 29.12.71 is in accordance with the basic
principles adopted by the Assembly.^
The Assembly then divided itself into eleven committees for the
purpose of examining the draft constitution in greater detail.
The public were assured that any proposals for amendment would be
considered by the appropriate committee provided that they were in
conformity with the basic principles adopted in the form of basic
resolutions by the Assembly. This meant that only questions of
form and detail and not of principle would be considered at this
stage. The committee which examined the chapter on fundamental
rights perused a large number of memoranda from the public and
heard oral representations from individuals and organisations at
2
sixteen meetings which it held. However, in its report to the
Assembly, it only recommended that the marginal title be amended
and that the Sinhala version of that chapter be further examined
by a special committee of experts “with a view to imparting
3
greater clarity and elegance in respect of language”. The reports
Constituent Assembly Debates, 3 January 1972.
This committee was chaired by B.Mahmud, Minister of Education,
who was a non-lawyer. Of its 14 members, only two were lawyers.
There were no members of the opposition: Reports of the Committees
of the Constituent Assembly Appointed to Consider the Draft
Constitution (Colombo: Dept, of Govt. Printing, 1972), p.90.
Ibid., p.93.
90
of the committees and a draft revised constitution were placed
before the Steering and Subjects Committee on 4 May 1972, and
before the Assembly on 8 May 1972. On 22 May 1972, the Constituent
Assembly adopted the draft constitution by 119 votes to 16, and
adjourned to the Navarangahala where, at the auspicious time of
12.43 a.m., the President of the Assembly certified the adoption
and enactment of the new Constitution by the Constituent Assembly.
The Protected Rights
The major portion of the fundamental rights which were
sought to be protected by the 1972 Constitution were contained
in section 18(1) which read as follows:
In the Republic of Sri Lanka –
(a) all persons are equal before the law and are entitled
to equal protection of the law;
(b) no person shall be deprived of life, liberty or
security of person except in accordance with the law;
(c) no citizen shall be arrested, held in custody,
imprisoned or detained except in accordance with the
law;
(d) every citizen shall have the right to freedom of
thought, conscience and religion. This right shall
include the freedom to have or to adopt a religion
or belief of his choice, and the freedom, either
individually or in community with others and in
public or private, to manifest his religion or
belief in worship, observance, practice and teaching;
(e) every citizen has the right by himself or in
association with others, to enjoy and promote his
own culture;
(f) all citizens have the right to freedom of peaceful
assembly and of association;
(g) every citizen shall have the right to freedom of
speech and expression, including publication;
(h) no citizen otherwise qualified for appointment in
the central government, local government, public
corporation services and the like, shall be
discriminated against in respect of any such
appointment on the ground of race, religion,
caste or sex:
Provided that in the interests of such services,
specified posts or classes of posts may be reserved
for members of either sex;
(i) every citizen shall have the right to freedom of
movement and of choosing his residence within Sri Lanka,
91
The rights relating to politics and democracy were sought to
be protected by the inclusion of the following principles:
The National State Assembly to consist of elected representatives of the people (section 29)
Every Assembly, unless sooner dissolved, to continue for a
period of six years and no longer, and the expiry of the period
of six years to operate as a dissolution (section 40(1))
The Assembly to be summoned to meet at least once in every
year (section 41(1))
The Assembly not to be prorogued for any period longer than
four months (section 41(2))
The election of members of the Assembly to be held within a
period of four months of a dissolution (section 41(7))
The Assembly not to abdicate, delegate or in any manner alienate
its legislative power (section 45(1))
Every citizen of the age of 18 years and over, unless disqualified in terms of the Constitution, to be qualified to be an
elector (section 66)
Every person who is qualified to be an elector to be qualified
to be elected as a member of the Assembly unless disqualified
in terms of the Constitution (section 69)
The election of members to the Assembly to be free and by
secret ballot (section 72).
The right to an independent and impartial tribunal was sought
to be protected in the following principles:
Judges of the Court of Appeal and of the Supreme Court to
be appointed by the President (section 122(1))
Such judges to hold office during good behaviour and not be
removable except by the President upon an address of the
National State Assembly (section 122(2))
The term of office of a judge of the Court of Appeal to be as
provided by the Court of Appeal Act, and the age of retirement
of a judge of the Supreme Court to be 63 years (section 122(3))
The salaries of such judges to be determined by the Assembly
and charged on the Consolidated Fund (section 122(4))
The salary payable to, and the age of retirement of, such judge
not to be reduced during his term of office (section 122(5))
92
Every person who, without legal authority therefor, interferes
or attempts to interfere with the exercise or performance of
the judicial powers or functions of any judge to be guilty of
an offence (section 131)
Every person who immediately prior to the commencement of the
Constitution held judicial office to continue to hold such
office under the same terms and conditions (section 132).
The protection accorded to these rights and principles by the
Constitution was that their amendment or repeal required a special
majority of two-third of the whole number of members of the National
State Assembly voting in favour.’*’ During a state of public emergency,
regulations made by the President in the interests of public security
2
could not derogate from any of these provisions.
The Constituent Assembly undertook the task of preparing a
bill of rights at a time when substantial progress in defining
standards for the protection of human rights had been made elsewhere.
Apart from the Universal Declaration of Human Rights, which the
Government of Ceylon had acknowledged at the International Conference on Human Rights at Teheran in 1968 as constituting “an obli3
gation for members of the international community”, work had been
completed on several other international and regional standardsetting instruments, including the two Covenants. The European
Convention on Human Rights had been in force for nearly twenty
years and had already been supplemented by five protocols. In
Central and South America, the American Declaration of the Rights
and Duties of Man of 1948 had been articulated in a more justiciable
form in the American Convention on Human Rights. In the Constitutions of several Commonwealth countries from the Caribbean Sea to
the Pacific Ocean, efforts had already been made to secure funda-
/|
mental rights. In other words, there was then in existence a body
of law relating to human rights which had almost universally been
accepted by the international community which Sri Lanka was seeking
to enter as a free, sovereign and independent Republic.
S.55(5).
S.45(4).
“The Proclamation of Teheran, 1968”, Human Rights – A Compilation of International Instruments of the United Nations (New York:
United Nations, 1973).
For example, the Constitutions of Tonga (1875), India (1949),
Nigeria (1960), Cyprus (1960), Jamaica (1962), Zambia (1964), Malta
(1964), Barbados (1966), Guyana (1966), Botswana (1966), Lesotho
93
At first glance it is apparent that the 1972 Constitution
did not contain a comprehensive statement of rights. Nor did each
right, when looked at separately, appear to be comprehensively
defined. Indeed, orfy the right to freedom of thought, conscience
and religion appeared to possess all the attributes of that right.
It existed, of course, alongside a directive to the Republic to
“give to Buddhism the foremost place” and to “protect and foster
Buddhism while assuring to all religions the rights granted by
section 18(1)(d)”. Short of declaring Buddhism to be the State
Religion, such a provision was inevitable when considered in the
context of over four hundred years of missionary activity in the
country. As the Prime Minister explained to her Marxist Minister
of Constitutional Affairs:
I have glanced through a summary of representations
received by your ministry from the public. I find
from these andxther sources that there appears to be
a considerable demand in the country for Buddhism as
a state religion, and for the protection of its
institutions and traditional places of worship. Some
provision will have to be made in the new constitution
regarding these matters without, at the same time,
derogating from the freedom of worship that should
be guaranteed to all other religions.
It is now proposed to examine and contrast the rights protected in
the Constitution against the internationally accepted standards.
The Inadequately Protected Rights
The right to life is an “inherent” right which “shall be
protected by law”, and no one may be “arbitrarily deprived of his
life”. The death penalty is recognised as an exception if it has
not already been abolished; but it may be imposed only by a “final
judgment” of a “competent court” for the “most serious crimes” in
accordance with a non-retroactive law. Its imposition on persons
below eighteen years of age (or over seventy, under the ACHR) and
its execution on pregnant women are both prohibited. A person
sentenced to death has the right “to seek pardon or commutation”,
2
and amnesty, pardon or commutation “may be granted in all cases”.
ACHR adds a further element by prohibiting capital punishment for
“political offences or related common crimes”, and seeks to
(1966), Mauritius (1968), Uganda (1967), Nauru (1968), Swaziland
(1968), Kenya (1969), Fiji (1970) and The Gambia (1970).
Op.cit.
ICCPR, Art.6.
94
encourage the progressive reduction of the death penalty by
prohibiting its extension to new crimes as well as its reestablishment once it has been abolished.^ Section 18(1) (b),
however, provided merely that no person shall be deprived of
life except in accordance with law. In other words, the
legislature was not limited in any way from extending the
death penalty, even retroactively, to new offences; nor indeed,
from attempting to enact a law similar to the abortive Death
2
Penalty (Special Provisions) Bill of 1962.
Liberty is a concept which is capable of an expansive interpretation or a narrow definition. The United States Supreme
3
Court considered it to be a “broad and majestic term”. The
Indian Supreme Court has regarded it as one of the widest amplitude,
4
including within its ambit the right to travel abroad. But the
expression “liberty and security of person” in ECHR has been
narrowly defined; the institutions of Strasbourg being of the
view that “liberty” contemplated the physical liberty of the
person, while “security” meant only freedom fron arbitrary arrest
and detention.^ Since no White Paper was issued in explanation
of the constitutional proposals, and the Minister himself did not
elucidate the statement of rights which he introduced in the
Constituent Assembly, it remained a matter of conjecture as to
what was meant or intended by section 18(1)(b) when it provided
that no person shall be deprived of liberty or security of person
except in accordance with the law. No assistance was forthcoming
from the fact that the next clause, section 18(1)(c), provided
that “no citizen shall be arrested, held in custody, imprisoned
or detained except in accordance with the law”; a meaning usually
ascribed to the term “security of person” which was already provided
for. Did “liberty” encompass a wide variety of interests not
otherwise provided for such as the right to a fair trial, liberty
ACHR, Art.4.
Supra, p.68.
Board of Regents v. Roth, 408 US 564.
Maneka Gandhi v. Union of India (1978) S.C.R. 312.
Arrowsmith v. United Kingdom (7050/75), Report: DR 19,5;
Guzzardi v. Italy (7367/76), Judgment: 6 November 1980;
X v. United Kingdom (6998/75), Judgment: 5 November 1981.
95
to pursue any livelihood or lawful vocation, freedom of personal
choice in matters of marriage and family life, the right to privacy,
the right to travel abroad and the liberty of parents to direct
the upbringing and education of children under their control; or
did it have a much narrower content ? Whatever might have been
intended, neither of the clauses guaranteed specifically even the
attributes which had been assigned to the concept in the international instruments. Articles 9, 10 and 11 of ICCPR identifies
the rights of persons whose liberty has been infringed by the
State. Article 5 of ECHR specifies exhaustively what the grounds
of deprivation of liberty may be, and thereby effectively forbids
arrest or detention on any other grounds, even if established by
law. Provisions such as these give substance and meaning to
otherwise airy concepts. When entrenched in a constitution, they
offer protection to the citizen against social and political
vicissititudes. They were, unfortunately, lacking in the 1972
statement of fundamental rights. Instead, the National State
Assembly was vested with a plenitude of power to legislate at will
on matters affecting the liberty of the individual without providing
any indication as to where the perimeter of state authority lay.
The freedom of movement falls into six distinct categories:
(1) freedom to choose a residence within the territory of a state,
(2) freedom to move about within the borders of a state, (3) freedom
to leave a state, (4) freedom to enter a state, (5) freedom frcm
expulsion from a state, and (6) freedom from exile.’*’ The Constitution protected only the first two categories, omitting altogether
the freedom to leave the country. The latter freedom existed even
2
in the Hellenic age, was recognised in 1215 in the Magna Carta,
3
had been claimed as a part of the Indian tradition and of the
American heritage, and has been described as the freedom which
ICCPR, Arts. 12, 13; ECHR P4, Arts. 2, 3, 4; ACHR, Art.22.
In Maneka Gandhi v. Union of India, supra, Krishna Iyer J noted
that it is recorded that Socrates, in his dialogue with Crito, spoke
thus: “We further proclaim to any Athenian by the liberty which we
allow him, that if he does not like us when he has become of age and
has seen the ways of the city, and made our acquaintance, he may go
where he please and take his goods with him. None of our laws will
forbid him, or interfere with him. Anyone who does not like us and
the city, and who wants to emigrate to a colony or to any other city
may go where he likes, retaining his property”, (at para.99).
Ibid., per Bhagwati J.
Kent v. Dulles, 357 US 116, per Douglas J.
96
makes all other rights meaningful.’*’ Even in Ceylon, four years
previously, T.S.Fernando J had asserted that:
Speaking for myself, I think it appropriate to add
that the right to freedom of movement is an important
right of a citizen, and our courts may not be found
unwilling on a proper occasion and in appropriate
proceedings to consider whether executive discretion
can be equated to executive whim or c a p r i c e . 2
The freedom of expression extends beyond the liberty to
express one’s own opinions, and includes the “freedom to seek,
receive and impart information and ideas of all kinds, regardless
of frontiers, either orally, in writing or in print, in the form
3
of art, or through any other media of his choice”. It is a twoway flow, both outbound and inbound. Section 18(l)(g), however,
protected only the “right to freedom of speech and expression,
including publication”; the right to seek and receive information
and ideas was not expressly recognised. In its absence, it was
possible to argue that what was contemplated was a one-way flow
of material. This argument would have gained strength from the
fact that in all the international instruments it has been
considered necessary to state explicitly that this right includes
the freedom to seek and receive information and ideas.
Section 18(1)(f) stated that all citizens had the right to
peaceful assembly and of association, but made no reference to
the right to form and join a trade union. Although the former is
the overall concept, with the latter as an element in that concept
rather than a separate distinct right,^ the omission in that
section of a specific reference to “the right to form and join
trade unions for the protection of his interests” could well have
had a debilitating effect, if not on the overall concept, at least
on the nature and scope of trade union freedom.
Equality before the law, equal protection of the law, and
non-discrimination are three related concepts. Section 18(1)(a)
contained the first two concepts. But section 18(1)(h) which
sought to protect citizens from discrimination in the exercise by
them of their rights and freedoms, did so only in respect of one
single right, namely, the right of access, on general terms of
Ibid.
In Re Ratnagopal (1968) 70 N.L.R. 409.
ICCPR, Art.19; ECHR, Art.10; ACHR, Art.13.
Young, James and Webster v. United Kingdom (7601/76,7806/77),
Report: 3 EHRR 20.
97
equality, to the public service. Furthermore, it proscribed
discrimination only on the grounds of “race, religion, caste or
sex”, leaving out the sensitive and no less relevant classifications in Sri Lankan society of “language”, “political or other
opinion”, “national or social origin”, and “birth or other status”,
all of which were grounds on which discrimination was prohibited
in the international instruments.’*’ Similarly, section 18(1)(e)
which presumably sought to give effect to Article 27 of ICCPR
relating to the rights of ethnic, religious and linguistic
minorities, recognised the right of a citizen only “to enjoy and
promote his own culture”, and specifically omitted his right, in
comnunity with the other members of his group, to use his own
language. These provisions would have contributed very little to
reassure the minorities of equal treatment in the new Republic.
History of language legislation
The right of a minority community “to use their own language”
is a fundamental right. Before examining the provisions in the
1972 Constitution relating to language, it would be useful to
examine briefly the history of language legislation in Ceylon
since Independence. The Senanayake Governments of 1948 and 1952
were committed to the progressive replacement of English with
Swabasha, i.e. Sinhala and Tamil, but took no tangible action to
give effect to this commitment. The only practical step was the
appointment in 1951 of an Official Languages Commission for the
purpose of determining the procedure to be followed in adopting
Sinhala and Tamil as official languages. This apparent apathy
on the part of the Government soon gave rise to a suspicion that
the English-educated Sinhalese, who held the positions of power,
were quite content to let the status quo remain. The movement
for Swabasha received an impetus with the resignation of S.W.R.D.
Bandaranaike from the Cabinet in July 1951. The immediate cause
for his resignation had been a resolution of the Sinhala Maha Sabha,
which he then led, changing the Government with procrastination and
delay on the language question. In September 1951, the Sri Lanka
Freedom Party which he founded announced that:
It is most essential that Sinhalese and Tamil be adopted
as official languages immediately so that the people of
ICCPR, Arts.2(1), 26; ECHR, Art.14; ACHR, Art.l.
98
this country may cease to be aliens in their own
land; so that an end may be put to the inequity
of condemning those educated in Sinhalese and Tamil
to occupy the lowliest walks of life.-*-
The Swabasha movement in its first phase was clearly a protest
against the privileges maintained by the small and exclusive
English-educated elite and the dearth of opportunities available
to the Swabasha-educated. It was essentially a class, rather than
a communal, issue. The Swabasha movement was also chiefly a
Sinhalese movement since the Tamils, who had received a good
grounding in the English language in the Christian missionary
schools in the north, had no compelling reason to wish a change
from that language.
In 1953, in a rider attached to the final report of the
Official Languages Commission, chairman Sir Arthur Wijewardene
expressed the view that:
The replacement of English by Swabasha would have
been very much easier if instead of two Swabasha
languages as Official Languages one alone had been
accepted. 2
In the next year, Wijewardene as chairman of the Commission on
Higher Education in the National Languages, in a rider to a report
of that commission, warned of grave disadvantages faced by Sinhalese students because few educational materials existed in Sinhalese, while materials in Tamil were available from South India.
He concluded:
Of course, this difficulty will not arise, if there
is only one official language. 3
Wijewardene, who was a retired chief justice, was clearly stepping
outside his terms of reference to give quasi-official expression
to a view rapidly gaining ground among the Sinhalese that the
size of the Tamil minority was not sufficient to justify equal
treatment for the Tamil language.^ Having regard to the fact
that both in the civil service and in the judicial service, there
were nearly half as many Tamils as Sinhalese, parity of status
was seen by many as a device for perpetuating that position of
Bandaranaike Speeches, p. 141.
Final Report of the Official Languages Commission, S.P.XXII
-1953, p.26.
Interim Report of the Commission on Higher Education in the
National Languages, S.P.XXI-1954, p.6.
For a fuller account, see Robert N. Kearney, Communal ism and
Language in the Politics of Ceylon (North Carolina: Duke University
Press, 1967).
99
advantage and for securing an unwarranted place for the Tamil
minority vis-a-vis the Sinhalese majority. The SLFP re-examined
its language policy and, in 1955, changed it to Sinhala only with
a reasonable use of the Tamil language. The LSSP and the CP
remained committed to parity. As the Sinhala-only movement
gathered momentum in the country, the UNP led by Prime Minister
Kotelawela, in an abrupt volte-face, abandoned its “national”
stance, adopted Sinhala-only without any concessions for Tamil,
and announced a premature dissolution of Parliament to obtain a
mandate to implement its language policy.
In the wake of his decisive victory in April 1956, Prime
Minister Bandaranaike encountered considerable difficulty in
preparing draft legislation to give effect to his policy of
Sinhala-only “with a reasonable use of Tamil”. Extreme chauvinist
elements within his coalition objected to any reference to the
Tamil language in the proposed legislation, and a university
lecturer began a fast-unto-death on the steps of parliament house
to ensure that no such reference would be made. Consequently, the
Official Language Act, which was passed in July 1956 amidst scenes
of unprecedented communal violence in many parts of the country,
merely provided that “the Sinhala language shall be the one official
language of Ceylon”. Bandaranaike admitted that his bill was
defective in that the reasonable use of the Tamil language was not
provided for. But, he urged:
Let us all discuss round round-tables, or any other
method, the practical difficulties that arise not
merely in the implementation of this bill as it
stands, but the practical difficulties that arise
even apart from that. Let us discuss all these
matters in a quieter atmosphere after the passage of
this bill. 1
In August 1956, the Federal Party issued an ultimatum to the
Government and gave it one year to resolve the language question.
As this year drew to a close and the Federal Party prepared for its
threatened Satyagraha campaign, Bandaranaike began discussions with
FP leaders and, on 26 July 1957, entered into a formal agreement
o
which became known as the Bandaranaike -Che 1 vanayakam Pact. Under
Parliamentary Debates (House of Representatives), 14 June
1956, col.1922.
Logos, Vol.16, ed. Tissa Balasuriya,o.m.i. (Colombo: Centre
for Society and Religion, 1977), pp.66-69.
100
this pact, it was agreed that Tamil would be recognised by law
as the language of a national minority, and that the language of
administration in the northern and eastern provinces would be Tamil.
It was also agreed to establish Regional Councils with powers over
specified subjects including agriculture, co-operatives, lands
and land development, colonisation, education, health, industries
and fisheries, housing and social services, electricity, water
schemes and roads. The Federal Party withdrew its proposed
satyagraha, and Bandaranaike addressing the next annual sessions
of the SLFP announced that “an honourable solution” had been
reached:
The campaign which certain small elements of the
Sinhalese started after my discussions with the
Federal Party with the object of creating trouble
and embarrasing the Government, as you all know,
proved an ignominious failure. You will thus see
that communal harmony has been restored to a great
extent with honour and self-respect. Such harmony
and friendship is absolutely necessary if we were
to solve the grave economic problems that face our
country.1
Far from having been an ignominious failure, the campaign against
the pact grew in intensity. Bandaranaike was accused of having
betrayed the Sinhalese community; the UNP led by J.R.Jayewardene
organised a 72-mile march from Colombo to the Temple of the Tooth
in Kandy “to save the Sinhala race”; and the Eksath Bhikku Peramuna
(United Front of Buddhist Monks) threatened a satyagraha of their
own if the pact was not repudiated. Meanwhile, the Federal Party
made its own contribution to inflame Sinhalese passions by launching
a campaign in the north to obliterate with tar the Sinhala letter
K a ••
eg (Sri) which, in a supreme act of thoughtlessness, had been
used to replace the English alphabet on the licence plates of motor
vehicles. Finally, in April 1958, besieged in his own residence
by demonstrating Buddhist monks, Bandaranaike announced the
abrogation of the pact.
The next few weeks saw an outbreak of comnunal violence, the
like of which had not been seen before. A state of emergency was
declared, and both Federal Party leaders as well as militant
Sinhalese politicians were detained. As soon as the disturbances
subsided, but while the FP Members of Parliament were still under
Bandaranaike, Speeches, pp.165-166.
101
detention, Bandaranaike introduced the Tamil Language (Special
Provisions) Bill which sought to define the “reasonable use of
Tamil”. This Act provided for the use of Tamil as a medium of
instruction in schools and in the universities, and as a medium
of examination for admission into the public service. It also
provided for the use of the Tamil language for “prescribed
administrative purposes”, and authorised the appropriate Minister
to make the necessary regulations for the purpose. “The language
issue”, declared Bandaranaike, “can now be considered as settled,
and it is not likely that serious communal disturbances will recur
in the future”. ^ At the time of his death in September 1959, no
regulations had, however, been made to prescribe the administrative
purposes. Nor were any such regulations made by the Government of
Mrs.Bandaranaike between 1960 and 1964. Instead, the Language of
the Courts Act, enacted in 1961, provided for the progressive
introduction of Sinhala-only in those courts in which it was
practicable to do so.
The Federal Party agreed to support, and in fact joined, the
UNP Government of Dudley Senanayake in 1965 on the express understanding that, inter alia, regulations would be framed under the
2
Tamil Language (Special Provisions) Act. On 11 January 1966, while
the SLFP and the left parties demonstrated outside, and a state of
emergency was declared following the shooting of a Buddhist monk
who was participating in these demonstrations, Parliament approved
3
the regulations. They provided that the Tamil language shall also
be used: (1) in the northern and eastern provinces for the transaction of all government and public business and the maintenance of
public records, (2) for correspondence between persons educated in
Tamil and government officials, and (3) for correspondence between
local authorities in the northern and eastern provinces and the
central government. They also provided for the translation and the
publication in Tamil of notifications, forms and other publications
issued or used by public bodies, including the Government Gazette.
Message to the SLFP Seventh Annual Number, 1959, quoted by
Kearney, Communal ism, p. 88.
Senanayake-Chelvanayakam Pact, 24 March 1965, reproduced in
Logos, op.cit., at pp.71-72.
Government Gazette 14653 of 2 March 1966, reproduced in Logos,
op.cit., at pp.69-70.
102
The regulations, of course, asserted that the use of the Tamil
language in the manner prescribed was “without prejudice to the
operation of the Official Language Act, No.33 of 1956, which
declared the Sinhala language to be the one official language of
Ceylon”. These regulations, however, were not implemented.
This, then, was the position in law in regard to the use of
the Tamil language when the Constituent Assembly met in 1970.
English was the mother tongue of the dwindling Burgher conmunity,
who accounted for 0.3 per cent of the total population in that
year, but no government since Independence had considered it
necessary to take note of that fact; and the strength of that
conmunity dwindled further as the Burghers continued to emigrate
to Australia and Canada. Noting that the draft basic resolutions
dealt with the language question in considerable detail, the
Prime Minister informed her Constitutional Affairs Minister that:
There is already ordinary legislation covering this
topic and I doubt whether it would be wise to open
this matter for debate again at this stage. The
better course would appear to be to let those laws
operate in the form in which they are. 1
Felix Dias Bandaranaike thought differently. He asked:
Must there not be some provision in this basic resolution for the Sinhala law to be the authentic law ?
Is it not necessary to provide in the basic resolution
the idea that Sinhala is to be the language of administration throughout the country, subject to the Tamil
Language (Special Provisions) Act of 1958 ? ^
Having presumably made these comments in his capacity of Minister
of Public Administration, he then donned his other hat and as
Minister of Justice observed that:
These resolutions deal with the language of the courts.
They constitute an important departure from the
Language of the Courts Act. It seems to me that this
matter is more appropriately left.to the National
Assembly to decide upon what rules should be made for
the future. If some resolution is needed, would it
not be sufficient to state in general terms that
‘Sinhala shall be the language of record in the courts
in such areas as may be determined by the National
Assembly; provided that facilities shall be provided
for translations for witnesses, accused persons and
parties, both oral and documentary, whenever necessary! . 3
Letter dated 9 December 1970, op.cit.
Letter dated 4 November 1970, op.cit.
Ibid.
103
Colvin R. de Silva intended, however, to “follow as closely as
possible the terms of the United Front manifesto” on the subject
of language. He believed that if the language provisions were
spelt out explicitly at that stage it may be possible “to achieve
the co-operation of Tamil speaking people at the earliest possible
stage of our proceedings”.’*’
Dr.de Silva’s optimism was not justified. How could the
co-operation of the Tamil community have been achieved when, very
early in the proceedings of the Constituent Assembly, a Federal
Party proposal for the establishment of an autonomous Tamil State
within the framework of a Federal Republic of Ceylon was summarily
rejected without discussion. The Government’s attitude appeared
to be that the language issue, which it believed to be basic to
the Tamil question, had been satisfactorily resolved and no further
discussion or compromise was necessary at that stage. This
unrealistic, and unsympathetic, appraisal not only led to the
withdrawal of the Federal Party from the Constituent Assembly;
it was to lead very shortly to the transformation of the Federal
Party into the Tamil United Liberation Front, comnitted to finding
solutions to the problems of the Tamil community within the context
2
of a separate Tamil State altogether.
The 1972 Constitution recognised Sinhala as the official
language of Sri Lanka, and as the language of legislation and the
3
language of the courts. The use of the Tamil language was
recognised to the following extent:
In accordance with the Tamil Language (Special Provisions) Act,
4
but without having regard to the regulations made thereunder
By requiring that every law should be “translated” into Tamil^
By providing that parties to legal proceedings and their pleaders,
as well as judges, may participate in such proceedings in Tamil,
and by requiring the State to provide interpretation facilities
to enable them to do so.
Letter dated 16 November 1970, op.cit.
Resolution of the TULF National Convention at Pannakam,
Vaddukoddai, on 14 May 1976, Logos, op.cit., p.5.
Ch. III.
S.8.
S.9(2).
S.11.
104
By refusing to recognise the Tamil Language Regulations made in
1966, the Constitution in fact guaranteed to the Tamil speaking
people less than what was already provided for by law. By
references to Tamil “translations” of laws and by specifically
providing that the Tamil Language Regulations “shall be deemed
to be subordinate legislation”, not only was the superior position
of the Sinhala language repeatedly asserted, the Tamil community
was also unnecessarily humiliated.
The provisions in the Constitution which sought to protect
the right of every citizen to “take part in the conduct of public
affairs, directly or through freely chosen representatives”, and
to “vote and to be elected at genuine periodic elections which
shall be by universal and equal suffrage and shall be held by
secret ballot” ^ were, but for two exceptions, immaculate.
Firstly, in the delimitation of electoral districts, the number
of “residents” and not “citizens” continued to be the determining
2
factor. Consequently, in the central highlands where the large
majority of “stateless” persons of Indian origin continued to
reside, a vote was of greater value than elsewhere. Secondly, the
Constitution provided that the Constituent Assembly which became,
by operation of law, the first National State Assembly shall,
unless sooner dissolved, “continue for a period of five years
commencing on the date of the adoption of the Constitution by the
3
Constituent Assembly”. The members of the Constituent Assembly
were those who had been elected to the House of Representatives at
the general election held in May 1970. At that time, the life of
Parliament was five years. Since no mandate was sought at the time
to extend that period, it must be presumed that the people intended
to delegate their legislative and executive authority only for
that period. When the Constitution was adopted on 22 May 1972,
two years of that period had already elapsed. Therefore, when the
Constitution provided that the first National State Assembly shall
4
continue for a period of five years, the elected representatives were
unilaterally giving themselves authority to continue to exercise
ICCPR, Art.25. See also ECHR PI, Art.3; ACHR, Art.23.
S.78(2).
S.42(5).
The usual term of a National State Assembly was six years.
Hence, this term of five years appeared to have been arbitrarily
fixed.
105
power for an additional two years. It was an indefensible
position and was in conflict with the spirit of the right which
the Constitution was seeking to guarantee.’*’
The Omitted Rights
If the rights which were sought to be protected in the 1972
Constitution were deficient in many respects, the statement of
fundamental rights and freedoms was also a remarkably incomplete
document. Several rights which are almost universally accepted
in contemporary society were omitted. For instance:
The prohibition of torture and cruel, inhuman or degra2
ding treatment or punishment. It could not have been contended
that these forms of treatment were non-existent in Sri Lanka. One
year before the Constituent Assembly met, a commission of inquiry
which investigated the police had reported, inter alia, on police
excesses in the following terms:
The Police do not enjoy the goodwill of the public.
The public image of the Police is not at all what it
should be. The fear of battery by the Police is in
every citizen. Several cases of torture have come
to light in the courts . . . Even after public attention has been focussed on a number of incidents in
which the Police have belaboured the public, reports
of Police violence still continue to appear in the
Press. 3
The prohibition of slavery, the slave trade, servitude /j f – I r -r .11
and forced or compulsory labour. While slavery, in the conventional sense, had been abolished in 1844, some of the “institutions
and practices similar to slavery” were perhaps not altogether nonexistent either in the paternalistic south or in the caste-ridden
north of Sri Lanka. These included debt bondage, serfdom, forced
marriages and exploitation of child labour.^ The concept of “forced
or compulsory labour” was also no longer understood solely in terms
of the literal meaning of the words. In interpreting it, in the
light of relevant ILO Conventions, it included other elements such
For a legal justification of the “extension”, see Colvin
R.de Silva, “The Right to Rule till 1977”, Ceylon Observer, 21 May
1974; and “JR and the Constitution”, Ceylon Daily News, 20 May 1975.
ICCPR, Arts.7, 10(1); ECHR, Art.3; ACHR, Art.5(2).
Final Report of the Police Commission, S.P.XXI-1970, para.54.
Supplementary Convention on the Abolition of Slavery, the
Slave Trade and Institutions and Practices Similar to Slavery, 1956,
Art.l.
106
as that the work or service is performed by the worker against his
will, that the requirement that the work or service be performed is
unjust or oppressive, or that the work or service itself involves
unavoidable hardship.’*’
The right to a fair trial. In the determination of his
civil rights and obligations or of any criminal charge against him,
a person is entitled to a fair and public hearing within a reasonable
2
time by an independent and impartial tribunal established by law.
Only the last mentioned element of this right was sought to be
protected by the Constitution.
The rights of accused persons. Everyone charged with a
3
criminal offence is entitled to the following minimum rights:
a) to be presumed innocent until proved guilty according to law;
b) to be informed promptly, in a language which he understands and
in detail, of the nature and cause of the accusation against him;
c) to have adequate time and facilities for the preparation of his
defence and to communicate with counsel of his own choosing;
d) to be tried without undue delay;
e) to be tried in his presence, and to defend himself in person or
through legal assistance of his own choosing or, if he has not
sufficient means to pay for legal assistance, to be given it
free when the interests of justice so require;
f) to examine, or have examined, the witnesses against him and to
obtain the attendance and examination of witnesses on his behalf
under the same conditions as witnesses against him;
g) to have the free assistance of an interpreter if he cannot
understand or speak the language used in court;
h) not to be compelled to testify against himself or to confess
guilt;
i) not to be held guilty of any criminal offence on account of any
act or omission which did not constitute a criminal offence
under national or international law at the time when it was
committed, and not to have imposed on him a heavier penalty
than the one that was applicable at the time the criminal offence
was committed;
Iversen v. Norway (1468/62), CD 12, 80; X v. Federal Republic
of Germany (4653/70), CD 46, 22. See also ILO Convention No.29
concerning Forced Labour, 1930, and ILO Convention No.105 concerning
the Abolition of Forced Labour, 1957.
ICCPR, Art.14(1); ECHR, Art.6(1); ACHR, Art.8(1).
ICCPR, Arts. 14, 15; ECHR, Arts. 6, 7; ACHR, Arts. 8, 9.
107
j) to have his conviction and sentence reveiwed ny a higher
tribunal according to law;
k) not to be tried and punished again for an offence for which
he has already been finally convicted or acquitted in accorwith the law;
1) to be compensated in accordance with the law if he had been
sentenced by a final judgment through a miscarriage of
justice.
Some of these rights were provided for, in varying degree, in the
nineteenth century Criminal Procedure Code and Evidence Ordinance.
But being ordinary statutes, they have sometimes been ignored or
expressly superseded in later special legislation. Some, like the
prohibition of retroactive criminal legislation and the right to
compensation, were not provided for anywhere. In any event, the
Constitution did not seek to protect any of these principles.
Family Rights. There are six distinct family rights,’*’
namely:
a) the right to marry;
b) the right to found a family;
c) the right not to marry without the free and full consent of
the parties;
d) equal rights of the spouses to, in, and after, marriage;
e) the family’s right to protection;
f) the right of the child to registration at birth, a name and
a nationality, and to necessary protection.
Some of these rights arose by implication in the regulatory laws
relating to marriage, divorce and the registration of births and
deaths, but none were guaranteed in the Constitution.
The right to privacy, honour and reputation. Everyone
has the right to respect for his private and family life, his home
and his correspondence, as well as to protection by law against
unlawful attacks on his honour and reputation. This right assumes
particular importance in the context of interferences made possible
by modem scientific and technical devices which are now at the
disposal of the State. Therefore, the protection afforded by the
nineteenth century statutes regulating the activities of postal
and telecommunication authorities was hardly adequate.
ICCPR, Arts.23, 24; ACHR, Arts.17, 19.
ICCPR, Art.17; ECHR, Art.8; ACHR, Arts. 11, 14.
108
The rights relating to property. Without prejudice to
the right of the State to enforce such laws as it deems necessary
to control the use of property in accordance with the general
interest or to secure the payment of taxes or other contributions
or penalties, every natural or legal person may be said to be
entitled to the peaceful enjoyment of his possessions, and the
right not to be deprived of his possessions except in the public
interest and subject to the conditions provided for by law and by
the general principles of international law.-*- In the Constituent
Assembly, the UNP moved the inclusion of the following provision:
(a) No person shall be deprived of his property save by law.
(b) No property shall be compulsorily acquired or requisitioned save for a public purpose and save by authority
of a law which provides for reasonable compensation
for the property so acquired or requisitioned and
fixes the amount of the compensation or specifies
the principles on which, and in the manner in which,
the compensation is to be determined and given. 2
This amendment was sponsored very eloquently and at length by J.R.
Jayewardene, but it was rejected and no reasons were given for the
rejection. The United Front manifesto, however, recognised the
concept of private ownership. It promised, inter alia, to “redeem
rural indebtedness”, “develop land holdings”, “consolidate fragmented holdings”, “distribute land among landless peasants”, “make
it easier for persons to build houses for themselves and their
children by providing and extending facilities for clearing title
to land and making land, material and low interest loans available
for this purpose”, “to actively pursue the policy of Ceylonisation
of ownership in the private sector”, and to assist “small industrialists”. ^
One more observation remains to be made on the statement of
fundamental rights contained in the 1972 Constitution. Apart from
the concepts of equality before the law and equal protection of
the law, and the rights to life, liberty and security of person,
every other right was guaranteed only to citizens of Sri Lanka.
There were in Sri Lanka in 1971 a total of 1,195,368 Indian Tamils.
Of them, 134,316 had obtained Ceylonese citizenship. In 1964
agreement had been reached between the Governments of India and
Ceylon that, of an estimated 975,000 who were “stateless”,
525,000 would be returned to India over a fifteen year period,
ECHR PI, Art.l; ACHR, Art.21. See also UDHR, Art.17.
Constituent Assembly Debates, 20 May 1971, col.1154.
Op.cit.
109
while 300,000 would be granted Ceylonese citizenship.’*’ The fate
of the remainder was to be examined on a later occasion. Therefore,
there was in Sri Lanka in 1972 a very substantial body of persons
who were not citizens of Sri Lanka, but whose continued presence
was vital for the economic development of the country. They were
virtually permanent residents who lived and worked on the tea
plantations of the central highlands. But in the new Republic,
to them was not guaranteed the right to freedom of thought, conscience or religion; the right to enjoy or promote their own culture;
the right of peaceful assembly or of association; the right to
freedom of speech or expression; the right to freedom of movement;
or the right not to be arrested, held in custody, imprisoned or
detained except in accordance with the law.
Limitations on the Exercise and
Operation of the Fundamental
Rights
The statement of rights was, of course, not absolute. In the
formln which they were guaranteed, and in regard to their future
exercise and operation, they were subject to the following limitations ;
Section 18(3) declared that all existing law shall operate
notwithstanding any inconsistency with any of the rights. In other
words, the guaranteed rights were to operate subject to the entire
body of laws, written and unwritten, which already existed in the
country. However archaic such a law might have been, and however
inconsistent such archaic law might be with a right considered
fundamental in the last quarter of the twentieth century, that
archaic law was to prevail in order to determine the rights of
citizens and other persons in the Republic. This was the opposite
of what the Governor-General had exhorted the Members of Parliament
to do when they functioned as a Constituent Assembly. The 1970
Throne Speech promised that the new Constitution will become the
fundamental law of the country, superseding both the 1946 Const2
itution “and also other laws that may conflict” with it. The
W.T.Jayasinghe, Tamils in Sri Lanka (Colombo: Dept, of Govt.
Printing, 1976), pp.12-19.
Supra, pp.78-79.
110
Indian Constituent Assembly achieved this result by providing in
Article 13(1) of the Constitution that:
All laws in force in the territory of India before
the commencement of this Constitution, in so far as
they are inconsistent with the provisions of this
Part, shall, to the extent of such inconsistency,
be void.
Thereafter, it was the duty of the Indian Supreme Court, whenever
its jurisdiction was invoked in that regard, to determine whether
or not an earlier law conformed to the new standards.
Section 18(2) provided that:
The exercise and operation of the fundamental rights
and freedoms provided in this Chapter shall be subject
to such restrictions as the law prescribes in the
interests of national unity and integrity, national
security, national economy, public safety, public
order, the protection of public health or morals or
the protection of the rights and freedoms of others
or giving effect to the Principles of State Policy
set out in section 16.
In other words, the National State Assembly was authorised to make
laws that conflicted with fundamental rights if it considered that
to do so would be in the interests of one or other of the enumerated
grounds. While it is necessary that the limitations on the exercise
and operation of certain rights should be clearly set out in a bill
of rights, the weakness in an omnibus escape clause such as this
is easily discernible. For instance, the right to life may have
to be restricted to the extent necessary to protect the right to
life of others. This is usually done by enabling one to exercise
his right of self-defence even to the extent of causing the death
of an aggressor if he had reason to believe that his own life was
in danger. But when the legislature is empowered to restrict the
right to life in the interests of “national unity”, “national
economy” or “for the protection of public morals”, not only does
the right cease to exist altogether, but a whole new hitherto
untraversed and sanctified territory is laid bare at the feet of
a ravaging legislator. That is, the legislature is expressly
authorised to extend its legislative power into areas which it
would not otherwise have dared to enter. Again, certain rights may
have to be restricted on grounds peculiar to them. For instance,
the right to freedom of expression may have to be restricted by
Ill
by law to prevent the disclosure of information received in confidence, or to maintain the authority and impartiality of the judiciary. Therefore, the effect of inserting an omnibus escape
clause such as this, particularly one so wide and extensive,wis to
detract altogether from the guaranteed rights. Indeed, if section
18(2) had merely stated that “the exercise and operation of the
fundamental rights and freedoms shall be subject to such restrictions
as may be prescribed by law”, the result may perhaps have not been
very different.
In the Constituent Assembly, the Minister assured that
whether a law
is in the interests of national unity, etc., is ^
subject to what we lawyers call an objective test.
But it is possible to argue that section 18(2), by using the words
“as the law prescribes” made the legislature the sole judge as to
whether it was necessary to transgress a right. Support for this
contention is found in comparable provisions in foreign instruments.
For instance, the Indian Parliament was empowered to “impose
2
reasonable restrictions” on the exercise of particular rights.
Similarly, ECHR contemplated “restrictions as are prescribed by law
and are necessary in a democratic society”. The ICCPR speaks of
restrictions which “are provided by law and are necessary” for the
4
protection of certain interests. There can be no doubt that where
qualifying words such as “reasonable” or “necessary” are used, it
is only by applying an objective test that a court can, in each
case, determine whether or not the legislature has acted within
its authority. But where the exercise and operation of a right is
not subject to considerations which are capable of being objectively
assessed by a court, it would appear that the question whether or
not a restriction ought to be prescribed in the interests of one
or other of the specified grounds might well be entirely within the
subjective determination of the legislature. At most, if a
petitioner had succeeded in showing that an impugned bill was
Constituent Assembly Debates, 10 June 1971, col.1328.
Art.19(2).
See, e.g. Art.11.
See, e.g. Art.12.
112
prima facie inconsistent with section 18(2), the onus would
probably have shifted upon the State to show that the proposed
legislative measure was “in the interests” of one of the purposes
described in that subsection; “in the interests”, of course,
being words of great amplitude, as the Constitutional Court was
shortly to hold.’*’
Section 52 provided that:
(1) The National State Assembly may enact a law,
which, in some particular or respect, is
inconsistent with any provision in the Constitution without amending or repealing such
provision of the Constitution provided that
such law is passed by the majority required
for the amendment of the Constitution.
(2) A law passed under the provisions of subsection (1) of this section shall not be
interpreted as amending the provisions of
the Constitution with which such law is
inconsistent.
In the Constituent Assembly, the Minister explained that this
section meant what it said:
There can be cases – they are extremely rare cases
but they can, in fact, happen in practice . . . –
where a bill or a provision thereof may be repugnant
to the Constitution, which the House wishes nevertheless to accept and pass into law without thereby
changing the Constitution. We may wish to preserve
the Constitution in its generality completely, but
we may wish to pass in one particular way a special
law that may offend the Constitution. 2
Therefore, under section 18(2), a bill which was in conflict with
a fundamental right could nevertheless be passed by a simple
majority if it was possible to fit that bill into one of the slots
created by that subsection. But if that bill fell outside the
ambit of that subsection, in that it could not be legitimised by
reference to a single of the many grounds on which the legislature
was permitted to transgress a fundamental right, it could yet be
passed by a two-third majority under section 52. Meanwhile, the
bill of rights remained inviolate in all its virginal purity.
Section 48(2) provided that:
No institution administering justice and likewise
no other institution, person or authority shall
have the power or jurisdiction to inquire into,
pronounce upon or in any manner call in question
the validity of any law of the National State
Assembly.
Sri Lanka Press Council Bill, (1973) DCC Vol.l, p.l, at 15.
Constituent Assembly Debates, 4 July 1971, col.2849.
113
Accordingly, it was possible for a bill which was in conflict with
a fundamental right, and to which section 52 should have applied,
to find its way into the statute book with a simple majority, and
to remain there. Subsection (1) of this section provided that a
bill passed by the National State Assembly shall become a law when
the certificate of the Speaker is endorsed upon it. But if the
question of its inconsistency was not raised within the prescribed
time and in the prescribed manner, the Speaker would not be alerted
to any possible inconsistency and the bill would receive his
certificate upon its passage with a simple majority. Thereafter,
however patent the inconsistency might be, and however seriously
it might derogate from a fundamental right, the law inadvertently
passed with an inadequate majority will continue to remain on the
statute book. For instance, section 55 of the 1946 Constitution
required judicial officers to be appointed by the Judicial Service
Commission. Section 41 of the Bribery Act, No.11 of 1954, as
amended by the Bribery (Amendment) Act, No.40 of 1958, empowered
the Governor-General, acting on the advice of the Minister of
Justice, to appoint members of a bribery tribunal. These members
were judicial officers within the meaning of that expression in
the Constitution. The amending Act had not been passed by the
special majority required for bills which sought to amend any
provision of the Constitution. The Privy Council held that the
amending Act was invalid and that the provisions of the Constitution
prevailed.”^ But if this situation had arisen under the 1972
Constitution, both the fundamental law as well as the offending
law would have been regarded as valid and would co-exist with
each other.
The Enforcement of Fundamental Rights
The United Front manifesto promised a constitution which would
“secure fundamental rights and freedoms to all citizens”. The
ordinary dictionary meaning of the term “secure” in this context
is “to guarantee”. When a right is guaranteed, there would immediately arise a corresponding duty on the part of the relevant state
agencies to observe and respect that right; a duty which would be
capable of being enforced at the instance of a person who is entitled
Bribery Commissioner v. Ranasinghe, supra.
114
to enjoy that right. Without the power to enforce, a statement
of fundamental rights merely serves as an adornment or as a piece
of political rhetoric. In 1959, the Joint Select Comnittee of
Parliament headed by Prime Minister Bandaranaike, which examined
the question of guaranteeing fundamental rights in the Constitution,
recognised:
The right to move the highest tribunal by appropriate
proceedings for the enforcement of Fundamental Rights
and to obtain suitable redress, for which purpose such
tribunal shall be vested with the power to issue the
necessary directions or orders or writs requisite for
the enforcement of Fundamental Rights. 1
Since the question of declaring Ceylon to be a Republic was also
under consideration at that time,
The Committee . . . were of the opinion that appeals
to the Privy Council should be discontinued, but that
a new judicial tribunal should be set up to adjudicate
on constitutional issues as well as to entertain
appeals from the Supreme Court.2
When fundamental rights are guaranteed in a constitution, one of the
agencies which is placed under a duty to observe, respect, and not
to transgress them, is the legislature. Since the legislature
speaks and acts through laws made by it, the jurisdiction of a court
to enforce fundamental rights must necessarily include the power to
examine and test the validity of laws by reference to the guaranteed
statement of fundamental rights. There is no reason to believe that
in 1959 the Joint Select Committee understood the concept of “enforcement” in any other way.
Eleven years later, all the political parties which had been
represented on that committee, including some of the members who
had actually served on it, appeared to have undergone a dramatic
change of attitude. In the Constituent Assembly, on the proposal
of the Minister of Constitutional Affairs, it was unanimously
agreed that:
No institution administering justice, nor any other
institution, person or authority, shall have the power
to inquire into or pronounce upon the validity of any
law enacted by the National Assembly.^
Before this basic resolution was discussed in the Assembly, the
ministry of constitutional affairs explained to members of the
government parliamentary group, many of whom were laymen unfamiliar
Supra.
Supra.
Basic Resolution 22, Constituent Assembly Debates, 4 July 1971,
col.2895.
115
with legal concepts and principles that:
If we must have justiciable rights and freedoms and
if we must at the same time move, without hindrance,
towards the establishment of socialism, we have no
option but to adopt a procedure ensuring that the
implementation of laws passed by the Assembly is not
held up by court actions relating to the validity
of laws.
It would be foolish not to take heed of what
happened in India. There, the implementation of
progressive legislation was held up for years by
court proceedings challenging the validity of progressive laws mostly upon the pretext that they were
inconsistent with justiciable rights and freedoms.
In the first fifteen years after the commencement
of the new Constitution, a vast number of constitutional cases were instituted; and of these, about
8000 cases, reported in the law books, are generally
available in Ceylon to members of the legal profession.
The problem arising out of uncertainty as to the
validity of laws is bad enough under the present
Constitution. It is sufficient to refer to a few
instances. It is now fifteen years since the
enactment of the Official Language Act was passed
/¥ic7 and the ordinary courts of the land have still
not decided whether this important piece of legislation
is good law or not. The utter confusion and the
consequent injustice that arose as a result of the
uncertainty as to the validity of laws relating to
Labour Courts and Tribunals is another example.
The Citizenship Act, the validity of which was
challenged in the courts of Ceylon as well as in
the Privy Council, is still another.
Under the new Constitution, which will contain a
statement of justiciable rights and freedoms, the
position will be immeasurably worse. Reactionaries
of every kind will exploit to the limit the normal
judicial processes to oppose and delay social progress
if no adequate constitutional safeguard is provided.1
The Prime Minister, at least initially, appears to have had a
different perspective of the problem. In her letter to the Minister
2
of Constitutional Affairs three months previously, she made the
following observation which “represents not only my own thinking,
but also that of my party”:
The resolution adopted by the Constituent Assembly
contemplates the establishing of a Constitution
which will be the fundamental law of Sri Lanka. To
give effect and meaning to this resolution, the new
Constitution should provide that even the Legislature should be bound by this fundamental law.
There appears to be no better way of securing this
Comments on Basic Resolutions submitted to the Steering and
Subjects Committee, 3 February 1971.
Op.cit.
116
result than by giving power to an independent body
like an established court to examine whether any
piece of legislation is contrary to such fundamental
law. The arrangements contemplated for this
purpose in the basic resolutions proposed by you do
not appear to be satisfactory. To give the power
of judicial review to the courts is not to establish
the superiority of the courts over the legislature.
It only proceeds on the assumption that the power
of the people is superior to both the judiciary and
the legislature; it means that where a law conflicts
with the will of the people as enshrined in the
Constitution, the courts ought to give effect to the
Constitution rather than to the law which is in
breach of it. If, however, the will of the people
as contained in the Constitution subsequently undergoes a change, the provisions for amendment of the
Constitution should be sufficient to meet such a
situation.
Dealing specifically with the question of securing fundamental
rights, the Prime Minister added:
The concept of fundamental rights as I understand it
when incorporated in a Constitution is intended
primarily to be a limitation on legislative and
executive abuses of power. Here again I think that
the new Constitution should give a sufficient
assurance to the citizens of this country that
legislatures and governments of the future will be
bound to observe the fundamental rights written
into the Constitution, and that they will not remain
mere declarations of intent which can be departed
from by any future legislature if it were so minded.
The dichotomy in the coalition Cabinet was clear. The LSSP Minister
of Constitutional Affairs believed that enforceable rights constitute road blocks on the march towards socialism. The Prime Minister
and the SLFP majority believed that fundamental rights constitute
the limits of state power, and should necessarily be enforceable
in every respect. The liberal optimism of the SLFP was, however,
short-lived.
On 3 July 1971, the Minister of Constitutional Affairs
introduced in the Constituent Assembly the basic resolution which
sought to deprive the courts in Sri Lanka of the power to examine
and pronounce upon the validity of legislation. He explained that:
This is a principle which is a direct application of
the principle that prevails in respect of the sovereignity of Parliament in Britain. I suggest the equivalent sovereign National Assembly should be in the
same position.
Constituent Assembly Debates, 3 July 1971, col.2831.
117
He did not explain, nor did any member from the opposition benches
observe, that the United Kingdom had neither a written constitution
nor a bill of rights; and that the supremacy of the Parliament of
that country rested on two principles: that no Parliament is bound
or limited by Acts of its predecessors or by its own earlier Acts,
and that the statutes enacted by Parliament and in force at any
time are the highest law in that they alter or nullify any common
law rules or earlier statutory provisions that are inconsistent
with them.’*’ Neither of these principles appeared to have any
relevance to the constitutional scheme envisaged in the United Front
manifesto, to implement which the people’s mandate had been sought
for and obtained. Indeed, they ran counter to that scheme.
In support of his basic resolution, and to illustrate the
urgent need for it, the Minister cited three cases. The first of
2
these was Kodeswaran v. The Attorney-General which was concerned
with the highly emotional subject of language. The plaintiff was
a Tamil officer in the general clerical service of the government
who had been denied an increment, on the authority of a treasury
circular, for having failed to obtain proficiency in Sinhala. In
the District Court of Colombo, he successfully argued that the
Official Language Act of 1956, in pursuance of which the circular
had been issued, was ultra vires on the ground that in enacting it
Parliament had transgressed the prohibitions against discrimination
contained in section 29 of the 1946 Constitution. The District
Judge, in entering judgment for the plaintiff, held the Act to be
void on that ground. On appeal, the Supreme Court held, on 30 August 1967, that the provisions of the covenants and rules governing
the public service were not enforceable by action. Accordingly,
the judgment of the District Court was set aside. The Supreme Court
did not examine or pronounce upon the validity of the Official
Language Act; it noted the principle observed by both the United
States and Indian Supreme Courts that if a case could be decided on
one of two grounds, one involving a constitutional question and the
other a question of statutory construction or general law, the
court will decide only the latter. On further appeal, the Privy
Council, on 11 December 1969, held that a civil servant in Ceylon
J.E.S.Fawcett, “Bills of Rights: Some Alternatives”, Do We
Need a Bill of Rights ? ed. Colin Campbell (London:Temple Smith,1980),
p.134.
D.C.Colombo 1026/Z.
118
did have a right of action against the Crown for arrears of salary.
It did not consider it proper to express an opinion on the constitutional question “without the assistance of the considered
judgment of the Supreme Court”. Accordingly, the case was remitted
to the Supreme Court for that purpose.
Explaining this case to the Constituent Assembly, the Minister
said:
It will astonish most people in this country to hear
that what has been considered the most vital law that
was passed in 1956 by the Government of the late Mr.
Bandaranaike is still in issue in the courts . . . Can
you imagine a situation like that ? Here is a basic
law oftur country, and by reason of the power given
to the courts to sit in judgment on the validity of
the law as distinct from the interpretation of the
meaning of the law, we do not know where we are and
we are rightly acting on the footing that the law is
a good one until it is set aside. But, just imagine,
how do you run this country in that situation ? . . .
If the courts do declare this law invalid and unconstitutional, heavens alive ! The chief work done from
1956 onwards will be undone. You will have to restore
the egg from the omlette into which it was beaten and
cooked. 1
The Minister omitted to point out that the 1946 Constitution
expressly limited the legislative power of Parliament and prohibited
it from making certain types of laws. If, therefore, a court declared a particular law to be invalid, it was because Parliament in
purporting to make that law had exceeded its powers. In fact, when
the Official Language Bill was presented to Parliament, several
members submitted that the Bill sought to confer on the Sinhalese
comnunity a privilege or advantage which was being denied to persons
2
of other communities, and it was precisely on that ground that
the law was later challenged in court. If, on the other hand, the
Minister’s complaint was of delay, and the consequent uncertainty
as toihe state of the law, there were other options available
which were not presented to the Constituent Assembly. For instance,
jurisdiction on constitutional questions could have been vested
exclusively in the highest court, as had been done under several
Commonwealth constitutions and as was contemplated by Bandaranaike
in 1959. Additionally, such court could have been directed to
give priority to such matters. It could have been clarified that
Constituent Assembly Debates, 3 July 1971, col.2832.
Parliamentary Debates (House of Representatives), 5 June 1956,
cols.735-746.
119
the decision of a court on the validity of a law should not affect
past acts done under that law. If provisions such as these had been
included in the 1946 Constitution, the question of the validity of
the Official Language Act might have been examined and determined
in the same year in which it was preferred, and there would have
been no reason to fear that sometime in the dim uncertain future
the eggwauB have to be restored from the omlette into which it had
been beaten and cooked.
The second case cited by the Minister was Walker Sons & Co.Ltd
v. Fry’*’ which was instituted during the upsurge of “judicial power”
consciousness in the early 1960s. Section 55 of the 1946 Constitution required judicial officers to be appointed by the Judicial
Service Conmission. The Industrial Disputes Act, as amended by
Act No.62 of 1957, provided for the appointment of Presidents of
Labour Tribunals by the Public Service Caimission. The function of
a Labour Tribunal was to entertain applications by workmen for
relief or redress in respect of matters relating to the terms of
employment or the conditions of labour. These included questions
arising out of the termination of the workman’s services and
relating to gratuities or other benefits payable on termination.
On such matters, the Tribunal was empowered to make such order as
may appear to it to be just and equitable. The workman had to
make his choice between the remedy afforded by this Act and any
other legal remedy he may have. The Tribunal’s order was final,
subject to an appeal to the Supreme Court on a question of law.
Any sum of money ordered by a Tribunal to be paid to a workman
could be recovered summarily through a Magistrate’s Court in the
same manner as a fine. In 1962, it was argued before the Supreme
Court that the President of a Labour Tribunal was a “judicial
officer” and that, not having been appointed in the manner required
by the Constitution, he had no jurisdiction to make any order. On
30 November 1965, in Walker Sons St Co.Ltd v. Fry, three judges of
the Supreme Court, with two others dissenting, held that a Labour
Tribunal exercised judicial power and that it had no jurisdiction
to exercise that power unless it had been appointed by the Judicial
2
Service Commission. On 16 May 1966, in Moosajees Ltd v. Fernando,
a bench of five judges of the Supreme Court, by a majority of four
(1965) 68 N.L.R. 73.
(1966) 68 N.L.R. 414.
120
to one, interpreted the judgment of the Privy Council in Liyanage
v. The Queen ^ as precluding officials whose powers and functions
are mainly administrative from exercising judicial power. Accordingly, it held that an Industrial Court appointed by the Minister
of Labour under the Industrial Disputes Act, or an Arbitrator
appointed by the Commissioner of Labour under the same Act, was
not entitled to exercise judicial power and therefore had no jurisdiction to adjudicate upon existing rights of parties. On appeal,
the Privy Council held, on 9 March 1967, that the powers and duties
of an Arbitrator, an Industrial Court and of a Labour Tribunal were
the same, namely, arbitral, and that none of them were judicial
offices. The judgment of the Privy Council was by a majority of
2
three to two.
The Minister referred to this series of cases as an illustration of “the utter disorganisation that flows from the principle
that the courts can sit in judgment on the validity of a law”. He
said:
Another major contribution of the late Mr.S.W.R.D.
Bandaranaike1 s Government to the legal system of this
country, for the solution of problems pertaining to
industrial relations, was the bringing in of an amendment which added a whole chapter to the Industrial
Disputes Act creating the labour tribunals . . . The
labour tribunals functioned for a time until there
came a stage at which the employers of the country
found the labour tribunal system extremely troublesome because, rightly, the presidents thereof brought
a non-judicial attitude – not a merely judicial
attitude – to bear. Ultimately there was an application for a writ taken to the Supreme Court . . .
on the ground that the labour tribunal that decided
a particular case was illegal, unconstitutional, in
that the provisions of the Constitution had not been
observed and the Judicial Service Commission had not
appointed the president of the tribunal.
Now what happened ? The matter went before three
judges. Then it went before five judges, and given
half the chance, it would have gone before seven or
nine. It was discussed from every point of view.
The judges were divided among themselves as to the
grounds on which they came to their conclusions.
No two judgments were alike or agreed on what they
said was the law, except that three judges for three
different sets of reasons came to the conclusion here
that . . . the Judicial Service Commission should
have appointed the president . . . and two judges
said otherwise.
(1965) 68 N.L.R. 265.
United Engineering Workers Union v. Devanayagam (1967)
69 N.L.R. 289.
121
The matter went to the Privy Council, and in the
Privy Council we had the unusual situation where the
judges permitted themselves to publish their division.
Three judges of the Privy Council said: ‘No, this is
correct’. Two said: ‘This is wrong’. So three
judges here and two there said one thing, and three
judges there and two here said another . . . the view
of the three judges there prevailed. 3
The Minister was not complaining of the ultimate outcome of this
case:
What they held was a very important decision: that
the labour tribunals are not courts in the sense of
the usual court, and that their function is that of
settling disputes, not just sitting in judgment upon
people – a very valuable judgment of the utmost
social importance on the country.3
Nor did he think that judges in Ceylon lacked social consciousness.
In 1968, speaking from the opposition front bench he had paid tribute
to them:
It is to my knowledge the endeavour of our courts
to march with the times. It is so. There are
plenty of judges of that spirit and outlook in the
field, for instance, of industrial law. Permit me
to say this here. One should not be speaking of
the judges before whom one practises. On the other
hand, one should not be inhibited in respect of
them when a general point can be illustrated. I say
with all respect and without any possibility of
others misunderstanding that, for instance, contemporary judges from the Chief Justice downwards
have in respect of certain matters of industrial
legislation concerning trade unions and so forth
made pronouncements from the bench which indicate
clearly that the contemporary spirit is being
sought to be applied in the courts . . . Contemporary judges from the Chief Justice downwards have
in judgments, in the very industrial fields I have
spoken of, shown that they are infused with anxiety
to bring the spirit of the times into play in that
field.3
What then was he complaining of ? Was it that this particular point
of constitutional law had been raised, whether because “the employers of the country found the labour tribunal system extremely
troublesome” or, more probably, because a sharp-witted lawyer
sensed that the current trend of judicial reasoning might well
apply to the brief he had in hand ? Or was it that there was a
lack of uniformity in the thought processes of judges ? These are
Constituent Assembly Debates, 3 July 1971, col.2834.
Ibid., at col.2835.
Parliamentary Debates (House of Representatives) 6 November
1968, col.1845.
122
all features of a free, democratic and open society. But if the
Minister was complaining of the disorganisation that resulted from
the judgment of the Supreme Court in November 1965, the responsibility ought to have been placed squarely on the government of
the day. It was incumbent on the government to have taken immediate action either to amend the Industrial Disputes Act to bring
it into conformity with the Constitution, or to amend the Constitution so as to exclude from the jurisdiction of the Judicial
Service Commission those institutions and offices created under
the Industrial Disputes Act.^
The third case on which the Minister relied in support of
his proposition was an unusual one. He said:
In the 1940s when the first Parliament of this Island
was elected there were several election petitions. And
in connection with them there were matters taken to
the Supreme Court in appeal in regard to the question
of deposits. There was a decision arrived at by three
judges about 19 or 20 years ago which had remained
there; and there had been neither occasion nor need to
challenge a point in respect of which I think all of
us as lawyers have advised our clients. Then as a
result of the Bandaragama by-election an appeal came
up before three judges in modem, or more accurately,
in contemporary times, and after tremendous argument
it was held that what had been decided some 19 years
ago in one direction was obiter in character or open
to be revised, and there was an exactly opposite
decision given.3
The Minister was referring to the 1969 case of David Perera v.
3
Peries. The question which arose was whether, upon an appeal
from the decision of an Election Judge, a report of the Supreme
Court that a corrupt practice had been committed by a person, was
effective to disqualify that person from membership of the House
of Representatives. It had been argued, by Dr.Colvin R.de Silva
himself, that the expression “report of an Election Judge” in
section 13(3)(h) of the Constitution did not include a report of
the Supreme Court on appeal. He relied on a 1948 decision of the
4
same court in Thambiayah v. Kulasingham which contained a
statement to that effect. H.N.G.Fernando CJ, however, held that
The Industrial Disputes Act was amended only in September
1968 by Act No.37 of 1968 which had retrospective effect from
9 March 1967.
Constituent Assembly Debates, 3 July 1971, col.2836.
(1969) 70 N.L.R. 217.
(1948) 50 N.L.R. 25.
123
this statement in Thambiayah was both obiter and per incuriam: the
attention of that court not having been drawn to the principle that
a court will not pronounce upon the constitutional validity of a
statute unless a decision as to validity was essential for the
purposes of the case actually before it. He proceeded to examine
the matter afresh, and held that the report of the Supreme Court
on appeal was as valid and effective as that of an Election Judge.
If the course adopted by the Chief Justice was objectionable, the
remedy lay with the legislature: it could have provided, as Dr.de
Silva argued on that occasion, that when the Supreme Court has
once declared a provision of an Act of Parliament to be ultra vires,
the court must not again review the correctness of its previous
declaration. Whether it is desirable that a court should stubbornly adhere to previous error is, of course, another relevant
aspect of the matter.
Having excluded the judicial review of legislation, what
other machinery existed for the enforcement of fundamental rights ?
A memorandum issued by the ministry of constitutional affairs
stated thus:
The fundamental rights and freedoms, assured to all
citizens, are protected in three ways under the
proposed constitution:
(a) No law /sicT” can be passed by the National State
Assembly in the way that laws are ordinarily
passed if the law infringes any fundamental right
or freedom;
(b) Review by the Supreme Court of administrative
action infringing fundamental rights and
freedoms; and
(c) Judicial acts being subject to correction by
the superior courts if fundamental rights and
freedoms are infringed. 3
The references were to the special procedure prescribed in the
Constitution for the examination of bills; the writ jurisdiction
of the Supreme Court; and the right of appeal. The Supreme Court’s
appellate jurisdiction was defined by law. It extended only to
the correction of errors of law or fact, conmitted in the course
of civil or criminal proceedings by original courts, and which
were apparent on the face of the case record. It is difficult to
visualise how a fundamental right could have been invoked by either
Op.cit.
124
party at the stage of appeal if such right was not relevant to the
matters in issue at the trial. The other two methods, of course,
need to be examined more closely.
Review of Bills
The Constitution created a Constitutional Court consisting
of five members appointed by the President for a term of four years.
They would enjoy security of tenure to the extent that they could
be removed by the President only “on account of ill-health or
physical or mental infirmity”. Prior to their appointment, the
National State Assembly was required to fix the remuneration to
be paid to them; the remuneration so fixed would remain unaltered
and be charged on the Consolidated Fund. Whenever occasion arose
for the determination of any matter, three members of the Court
were to be chosen in accordance with the rules of the Court. The
Court would have no permanent head; the chairman for each occasion
being also chosen in accordance with the rules. The intention was
clearly to create a special institution for the purpose of examining
bills in order to determine whether they contained any provisions
inconsistent with the Constitution.
Gamini Dissanayake (UNP), himself a lawyer, welcomed this
proposal in the Constituent Assembly:
It is, I think, very desirable and necessary that when
laws are being challenged, not ex post facto but in the
process of legislation, that a very expeditious, cheap
and quick method is devised where the validity or not
of a particular law is to be determined. Now, if one
were to go and repose that function in the regular
courts of law, in my view, it is going to be a very
tedious,cumbersome and very expensive procedure, and it
will make matters very difficult both for the subject
who goes to the court and for the judges who are called
upon to determine the validity of those laws. Therefore,
it is in that context that I welcome the proposal of the
Hon.Minister that the function of testing the validity
of legislation be given to a specialised tribunal independent of the regular courts of law.3
Whether a matter could be disposed of expeditiously would often
depend on the procedure prescribed in respect of that matter. In
Ceylon, the laws relating to criminal and civil procedure had
remained unamended for nearly a century. Consequently, there
were enormously heavy backlogs in the original courts, and a delay
Constituent Assembly Debates, 4 July 1971, col.2883.
125
of several years between the institution of an appeal and its
final determination. Therefore, if an “expeditious, cheap and
quick method” of subjecting bills to scrutiny by the Constitutional
Court had been devised, perhaps a regular court, such as the Court
of Appeal which was then in the process of being constituted to
replace the Privy Council, may well have been able to perform
that task in the same exemplary manner. Indeed, the leader of the
UNP, J.R.Jayewardene, gave expression to this view:
What better institution than the judiciary can be
given the power to decide, adopting the procedure
that the Hon.Minister has set out ? That is, before
a bill becomes law . . . why not the judiciary or,
say, the highest court, the Supreme Court, or some
other higher court, sit as the constitutional court ?
Why not an institution of trained judges, independent
judges, within the two weeks you have mentioned
here, motivated by the very people who you say
should bring this matter before a court, decide the
validity of the law ? That is the suggestion I wish
to make because, we feel, the country will be happy,
even the critics of this method will be happy, if
they know that the judiciary in which they have
confidence, in which the Hon. Minis ter has confidence,
has that power. ^
Why the Minister did not accept this proposal was not merely because
he wanted a different “court”; he also intended that it should be
manned by different people. “Some people have expressed horror”,
he said, “that one can even leave room for people other than members
of the judiciary to be members of the Constitutional Court”. He
referred to the French Constitutional Council and the Federal
Constitutional Court of Germany, to both of which non-lawyers had
been appointed, and urged two reasons why it ought to be possible
to do likewise in Sri Lanka:
If you bring the judges of a regular court with their
regular position – career judges, that is to say – into
a place like a Constitutional Court, they become
involved in the ordinary everyday matters of political
issues in the political arena. That would do no good
for judges . . .
There is also one other thing. In the matter of this
question of the constitutional Court, it must be realised
Ibid., col.2868.
The Constitutional Council of France consisted of nine
members, three of whom were appointed by the President of the
Republic, three by the President of the National Assembly, and
three by the President of the Senate. They were appointed for
nine years and their terms of office were not renewable. In
addition, former Presidents of the Republic were members ex
126
that expertise in legalism alone is not enough.
For instance, supposing we had an equivalent to
Sir Ivor Jennings here, would we not consider
him a suitable member of the Constitutional Court ?
But if you say it shall be just a portion of the
Supreme Court bench or a division thereof, all
such men are shut out. We have professors of
constitutional law, we have men of goodly position
and expertise; and what has to be brought in is
not only the legal expertise but proper attitudes.1
Ceylonese courts had hitherto exercised a variety of jurisdictions.
These included the determination of disputed elections, allegations
of breach of privilege of Parliament, charges of criminal defamation of government personalities, applications for writs in matters
affecting individual liberty and, of course, questions relating to
the validity of legislation. Strong political under-currents
flowed through many, if not all, of these cases. Yet the judges
who tried them often emerged with their reputations undiminished,
and the institutions continued to enjoy the confidence of the large
majority of the people of the country. Ceylon did not have a
professional judiciary. Judges of the superior courts were usually
drawn from the Bar, the bench and the legal departments of govem2
ment. No academician had yet been appointed, but judges sometimes
3
ventured into academic life either concurrently or after retirement.
Therefore, it would not have been accurate to say, in 1971, that
“legalism” was the dominant characteristic of the Ceylonese judi4
ciary. The question of “proper attitudes” is, however, a different
matter, and perhaps a subject for a separate study. It would suffice
to note at this stage that the Minister, in common with at least the
officio for life: see The French Constitution, 4 October 1958, Title
VII. The Federal Constitutional Court of Germany, however, was a
regular court exercising judicial power. It consisted of federal
judges and other members, half of whom were elected by the Bundestag
and half by the Bundesrat: see Basic Law for the Federal Republic of
Germany, 23 May 1949, Arts.92-98. Both these institutions examined
the constitutionality of proposed legislation, in addition to other
functions assigned by the respective constitutions.
Constituent Assembly Debates, 4 July 1971, col.2894.
Infra, ch. IV.
For example, Sir Francis Soertsz (visiting lecturer at the
Ceylon University College), H.W.Tambiah and N.Tittewella (visiting
lecturers at the University of Colombo), C.G.Weeramantry (Professor
of Law at Monash University, Australia), M.F.S.Pulle and S.R.Wije
tilleke (Principals of the Ceylon Law College).
Cf. views expressed by Colvin R.de Silva in 1968 on “the
the endeavour of our courts to march with the times”, supra, p. 121.
127
other members of his political party, shared a deep distrust of
the judiciary. Expression was given to this fear, though not in
the Constituent Assembly, in a memorandum on the appointment of
judges which was prepared by the ministry of constitutional
affairs and distributed to members of the government parliamentary
group. Dealing with an impractical and perhaps hypothetical^
proposal that judges, and not the executive, should have the power
of making appointments to the judiciary, the memorandum observed:
The suggested procedure would be comforting to the
privileged classes, since it would provide a means
of perpetuating the class composition of an institution which, they could hope, might operate as a
bastion of conservatism against the common man’s
demand for a egalitarian society and for progress
towards socialism. The suggestion is an example
of the natural attitude of those who fear the people
and their representatives.
It is hardly necessary to labour the point that
this suggestion is fraught with social and political
danger. The Supreme Court would in time tend to be
out of sympathy with the people and their aspirations.
In a changing world, an explosive situation is bound
to arise if privilege is entrenched in this way.
The above criticism does not involve the view that
the Supreme Court, generally speaking, is capable of
dishonesty. But it does involve two propositions:
firstly, that the judges of the Supreme Court are,
generally speaking, drawn from the strata of society
that can be described as privileged; and secondly,
the proposition that judgments are not purely objective, particularly in cases where the State or the
conflict of interest of classes are involved.
Decisions often depend upon a judge’s personal view
of what is far or what is reasonable; and this in
turn must, generally speaking, depend upon the
judge’s personal philosophy and social background.
It is clear that laws can never be made so as to
eliminate this personal factor.2
The jurisdiction of the Constitutional Court would be invoked
in the following manner. Every bill will be published in the
Gazette at least seven days before it was placed on the agenda of
the National State Assembly. Any question as to whether any provision in a bill was inconsistent with the Constitution will be
referred by the Speaker to the Court. This reference will be made
by him if: (1) he was of the view that there was such a question;
The memorandum did not identify the source from which this
proposal originated. It was not proposed by any of the political
parties.
Op.cit.
S.46(1).
128
(2) he received from the Attorney-General a communication that in
his opinion the question whether any provision in a bill cannot be
validly passed except by the special majority prescribed by the
Constitution should be referred to the Court; (3) he received
within a week of the bill being placed on the agenda a written
notice raising such a question signed either by the leader in the
Assembly of a recognised political party, or by at least such
number of members of the Assembly as would constitute a quorum; or
(4) the Court on being moved by any citizen within a week of the
bill being placed on the agenda, had advised him that there is
such a question.^”
The Attorney-General was under a duty to examine not only
2
every bill, but also every amendment proposed to a bill. Presumably,
therefore, the Attorney-General and the Speaker could form the view
that there was a question which ought to be referred to the Constitutional Court at any stage right up to the final voting on the
bill. But both these officers were in a rather unenviable position.
The Speaker, being not necessarily a lawyer, would depend on his
own legal adviser, the Attorney-General. The latter, being the
legal adviser to the Government as well, would probably have been
consulted before or in the course of the drafting of the bill, and
may have committed himself to a particular view long before he
entered upon the constitutional duty of examining the bill. If
that view was that the bill was inconsistent with the Constitution,
and the Government had disregarded his advice, he would now find
himself compelled by law to take the extraordinary step of taking
his Government to Court. As far as the citizen was concerned, it
was required of him that he should be vigilant enough, first to
follow all bills published in the Gazette and then presented in
the National State Assembly, and then to discover that a provision
in a particular bill, which may or may not have a relevance in his
life, contravened a fundamental right. He would have to make this
discovery by examining the proposed law in the abstract. The price tn
be paid for negligence, ignorance or inadvertence, was the diminution
of one’s rights and freedoms.
S.54.
S.53.
129
Not every bill could be canvassed in this manner. As the
Minister explained:
There comes once in a way, very rarely, but it comes,
as came for instance in this Parliament in the case
of the demonetization law, the need for a government
in the national interest urgently to pass a law in
the shortest possible time before people can make
preparations against that law.l
Section 55 exempted a bill which was, in the view of the Cabinet,
urgent in the national interest, and bore an endorsement to that
effect, from being published in the Gazette. It would be referred
by the Speaker to the Constitutional Court which was required to
comnunicate its advice to the Speaker within 24 hours of assembling.
Such advice would be that: (1) the provisions of the bill were
consistent with the Constitution; (2) the bill or any provision
therein was inconsistent with the Constitution; or (3) that it
entertained a doubt that the bill or any provision therein was
inconsistent with the Constitution. By the device of the appropriate
endorsement, whether made bona fide or not, it was, therefore,
possible for a government to avoid subjecting a bill either to
public scrutiny or to legal arguments thereon, in regard to its
constitutional validity.
The Attorney-General had the right to be heard on all matters
■ – – ……………………………………….2…………
before the Constitutional Court. When an “urgent bill” was being
examined, none other than the Attorney-General had the right to be
heard. On other occasions, the Court had the discretion to grant
3
to any person such hearing as would appear to it to be necessary.
Therefore, a citizen who was questioning the validity of a bill
could not, as of right, insist on being heard. The practice and
procedure of the Court was not prescribed in the Constitution, but
was left to be regulated by rules of Court which required the
approval of the National State Assembly.^ All hearings before the
Constitutional Court were open to the public.^ Every decision
would be by a majority vote, and no member was permitted to refrain
from voting. While decisions on “urgent bills” were required to
be comnunicated to the Speaker within 24 hours,^ other decisions
Constituent Assembly Debates, 4 July 1971, col.2856.
S.63(1).
S.63(2).
S.59.
S.62.
S.61.
S.55(1).
130
were required to be given, together with the reasons, within two
weeks of the reference.^ Excluding weekends, this would leave ten
days for the parties to be summoned, for written submissions to be
filed, for oral arguments to be made, and for the judgment of the
Court to be written and despatched. If more than one party had
raised questions of inconsistency, and if the Court decided to
grant to all such persons a hearing, the proceedings might have
2
become uncomfortably tight.
Review of Administrative Action
Section 121(3) of the Constitution provided that the highest
original court shall have “the power to issue such mandates in the
nature of writs as the Supreme Court is empowered to issue under
existing law”. These were the writs of habeas corpus, mandamus,
certiorari, quo warranto, prohibition and procedendo. In the
Constituent Assembly, the Minister explained that:
It is precisely this mandate issuable from the Supreme
Court that is the means by which these matters concerning fundamental rights can and would be enforced.-
He added that if a person “wishes to go to the ordinary courts by
way of a normal every-day action such as those filed in the District
Court, he can do so”. He was presumably referring to the declaratory
action and the application for an injunction.
These remedies had existed in the normal law for over a
hundred years. They had been introduced for the ordinary purposes
of adjudication and dispute settlement. Over the years, their
scope and applicability had been defined by courts. Without any
express provision to that effect in the Constitution or in any other
law, they were now intended to be invoked for the enforcement of
fundamental rights. The Indian Constituent Assembly appears to
have believed that these ancient remedies may not only be inadequate,
but may also require special authority in order to be adapted and
utilised for this purpose. Accordingly, the Indian Constitution,
while guaranteeing the right to move the Supreme Court by appropriate proceedings for the enforcement of rights, provided that:
The Supreme Court shall have the power to issue
directions or orders or writs, including writs in
the nature of habeas corpus, mandamus, prohibition,
quo warranto and certiorari, whichever may be appropriate, for the enforcement of the rights . . .
S.65.
Infra, pp. 241 – 260.
Constituent Assembly Debates, 10 June 1971, col.1302.
131
The constitutions of other Commonwealth countries which have
sought to protect fundamental rights also contain similar
provisions. For instance, the Constitution of Fiji, which
came into operation on 10 October 1970 while Ceylon’s Constituent Assembly was in session, contained the following
provision for the enforcement of fundamental rights:
(1) If any person alleges that any of the provisions of this chapter has been, is being, or
is likely to be contravened in relation to
him (or, in the case of a person who is detained, if any other person alleges such a
contravention in relation to the detained
person), then, without prejudice to any other
action with respect to the same matter which
is lawfully available, that person (or that
other person) may apply to the Supreme Court
for redress.
(2) The Supreme Court shall have original jurisdiction –
(a) to hear and determine any application
made in pursuance of the preceding
subsection;
(b) to determine any question which is
referred to it in pursuance of the next
following subsection /i.e. by a
subordinate court_7;
and may make such orders, issue such writs
and give such directions as it may consider
appropriate for the purpose of enforcing or
securing the enforcement of any of the provisions of this chapter. 1
In April 1972, while the final draft of the constitution was
receiving its finishing touches, the House of Representatives
2
amended the Interpretation Act. This amending law, which was
introduced by the Minister of Justice, Felix Dias Bandaranaike,
“to facilitate the acquisition of land for village expansion and
other public purposes” and which preceded the new Constitution by
eleven days, seriously eroded the remedies upon which the new
Constitution relied for the enforcement of fundamental rights.
The declaratory action was made inapplicable in respect of statutory
decisions and orders; the issue of injunctions against the State
was prohibited; and the writ jurisdiction (other than habeas
corpus) was emasculated by confining it only to ex facie errors
of law. Consequently, the fundamental rights were rendered almost
unenforceable.
Art. 17.
Interpretation (Amendment) Act, No.18 of 1972. For a fuller
discussion of its implications, see infra, pp.362-370.
132
The 1978 Constitution
At the general election held on 21 July 1977, 86.68 per cent
of the electorate polled to produce the following result:
TABLE 16
THE 1977 GENERAL ELECTION RESULT
Party Seats Votes Percentage
won polled polled
United National Party 140 3,179,221 50.9
Tamil United Liberation Front 18 421,488 6.7
Sri Lanka Freedom Party 8 1,855,301 29.7
Ceylon Workers Congress 1 62,707 1.0
Independents 1 353,073 5.6
Source: Ceylon Daily News, Parliament of Sri Lanka 1977 (Colombo:
Associated Newspapers of Ceylon Ltd, 1977).
For the first time since Independence, neither the Lanka Sama Samaj
Party (225,317 or 3.6 per cent) nor the Communist Party (123,856 or
1.9 per cent) were represented in the legislature. Following the
implementation of the Indo-Ceylon Agreements of 1964 and 1974, the
Indian Tamil community was able to elect one of its own representatives for the first time in nearly thirty years. The leader of the
UNP, J.R.Jayewardene, was appointed Prime Minister, and the leader
of the TULF, A.Amirthalingam, was elected Leader of the Opposition.
In its manifesto’*’ the UNP had sought a “mandate to draft,
adopt and operate a new Republican Constitution in order to achieve
the goals of a democratic socialist society”:
We shall include in the Constitution the Basic Principles accepted by the 1975 Party Sessions with reference
to Religion and Language and among them being the
guaranteeing to the people their Fundamental. Rights
Privileges and Freedoms, re-establishing the independence of the Press and the Judiciary and freeing it
from political control and interference. We will ensure
in the Constitution that every citizen, whether he
belongs to a majority or minority, racial, religious
or caste group enjoys equal and basic human rights
“A Programme of Action to Create a Just and Free Society”,
(Colombo, 1977).
133
and opportunities. The decisions of an All-Party
Conference which will be summoned to consider the
problem of non-Sinhala speaking people will be
included in the Constitution. Executive power
will be vested in a President elected from time
to time by the people. This will ensure stability
of the executive for a period of years between
elections. The Constitution will also preserve
the parliamentary system we are used to, for the
Prime Minister will be chosen by the President
from the Party that commands a majority in Parliament and other Ministers of the Cabinet will also
be elected Members of Parliament.
Within less than two months of assuming office, the new Government
took steps to introduce the concept of an executive presidency.
On 14 September 1977, a bill for this purpose was certified by
the Cabinet as being “urgent in the national interest”. It was
neither discussed in the government parliamentary group nor published in the Gazette for public information. But, curiously, after
the Prime Minister had introduced the bill in the National State
Assembly, the debate on it was adjourned for two weeks, and it was
thereafter debated and approved in one day after the two opposition
parties had walked out in protest. On 20 October 1977, the Speaker
certified the Second Amendment to the Constitution which combined
in the President the powers of both the constitutional Head^of
State and of the Prime Minister. It was announced that the law
would come into operation nearly four months later, on 4 February
1978, when, in terms of it, the Prime Minister would assume office
as President.
Select Committee
On the same day on which the Second Amendment was certified
by the Speaker, the National State Assembly resolved to appoint a
Select Committee from among its members “to consider the revision
of the Constitution of the Republic of Sri Lanka and other written
law as the Committee may consider necessary”. The TULF declined to
serve on this conmittee. Its leader explained that:
We felt that the Government itself had not set about
the question of solving the problem of the Tamilspeaking people in the way in which they said they
were going to solve it. In their election manifesto
as well as in their Policy Statement they said that
they would find a solution on the basis of a consensus
and that they would summon an all-party conference
as stated earlier and implement its decisions. In
134
fact, even in the paragraph dealing with the
Constitution in their manifesto they said that
the decisions of an all-party conference which
would be summoned to consider the problem of
the non-Sinhala speaking people would be
included in the Constitution. So, if the
Government had either summoned an all-party
conference or started negotiations with us
with a view to evolving a formula as a basis
for the solution of this problem, we could have
gone into the Select Committee in order to work
out a scheme of government – a Constipation
embodying that as one of its aspects.-*-
The SLFP agreed to serve on the Select Committee in the belief
“that a Third Amendment was to be introduced making further changes
in the Constitution, including changes consequent on the Second
Amendment”:
Our objects in participating in the deliberations
of the Select Committee were (a) to restore the
supremacy of the National State Assembly, and (b)
to prevent the transfer of any substantial power
into the hands of one individual who was already
not only above but also beyond the control of the
legislature and of the c o u r t s . ^
Also from the opposition benches, the leader of the CWC, which had
“been always sidetracked” and “ignored” whenever constitutions were
framed, decided to participate. As he too explained later:
I am glad to say that my participation in the
Select Committee helped me not only to understand
other people’s points of view, but also to make
both the Government and the SLFP leaders understand our problems.^
Accordingly, on 3 November 1977, the Speaker nominated the following
to serve on the Select Committee:
J.R.Jayewardene (UNP): Chairman ^
R.Premadasa (UNP)
L.W.Athulathmudali (UNP)
R.J.G.de Mel (UNP)
Gamini Dissanayake (UNP)
K.W.Devanayagam (UNP)
M.H.M.Naina Marikar (UNP)
S.Thondaman (CWC)
National State Assembly Debates, 2 August 1978.
Ibid.
Ibid.
After Jayewardene assumed office as President on 4 February
1978, Prime Minister Premadasa functioned as chairman on this committee. Jayewardene, however, was invited to be present and in fact
actively directed its proceedings.
135
Sirimavo R.D.Bandaranaike (SLFP)
Maithripala Senanayake (SLFP).
The committee was heavily weighted in favour of the Government.^
The Select Committee held 16 meetings between 18 November
2
1977 and 7 June 1978. It caused to be published in the national
newspapers a questionnaire seeking the views of the public on a
variety of matters including the following:
What are the other “fundamental rights which
you would like to see guaranteed in the revised
Constitution ?
What procedure do you suggest for dealing with
any infringement of such rights ? In particular,
what safeguards do you suggest in respect of
legislation which is alleged to contravene the
provisions of the Constitution ?
What do you consider should be done to preserve
and foster the independence of the judiciary ?
What are your views in regard to the functioning of the Constitutional Court under the
present Constitution ? Do you favour the
testing of the constitutionality of any act of
the legislature in the normal courts ?
What provisions and safeguards would you wish
to have included in the Constitution to solve
the problems faced by the minorities ?
The TULF and the two left parties, the LSSP and the CP, ignored the
questionnaire. The lack of public interest or enthusiasm in this
second attempt in six years to draft a new constitution was
evidenced by the fact that of 1400 persons who obtained copies
3
of the questionnaire, only 281 replied. The committee then invited
political parties, associations and other groups, and individuals
who had made “substantial submissions” in their written replies
to give oral evidence in amplification of the views expressed by
them. Of those who responded, nearly all spoke at length on the
Five of the government members were lawyers. At the request
of the two non-lawyer representatives of the SLFP, two lawyers –
the former Speaker of the National State Assembly and the former
Permanent Secretary to the Ministry of Justice, were invited to be
present at meetings of the committee. In attendance on behalf of
the government were J.A.L.Cooray and M.Sanmuganathan, both of whom
had helped to draft the 1972 Constitution; and attorney-at-law
Mark Fernando who, together with Gamini Dissanayake, had prepared
a constitutional scheme for the UNP when it was in opposition.
Report of a Select Committee of the National State Assembly
appointed to consider the revision of the Constitution (Parliamentary Series, No.14, 22 June 1978).
Ibid.
136
on the subject of fundamental rights, and urged not only that the
scope of the protected rights be widened, but also that the restrictions be reduced and that proper machinery be established for
their enforcement. Meanwhile, in December 1977, at a governmentsponsored seminar attended by members of the legal profession, the
subject of fundamental rights was further examined. It was agreed
at this seminar that the rights protected in the 1972 Constitution
were “not sufficiently exhaustive and explicit”; that the National
State Assembly should not have the power to enact with a two-third
majority a law which was inconsistent with the Constitution; that
if a bill had not been examined for constitutionality by the highest
court, the citizens should retain the right to challenge the constitutionality of such legislation within a period of six months of
its enactment; and that the right to a remedy should be specifically
provided for in the Constitution. The seminar, however, could not
agree on which rights ought to be guaranteed to all persons and
which only to citizens.’*’
The SLFP, freed from the constraints of office and unencumbered
by the doctrinaire politics of its erstwhile allies, expressed itself
2
quite expansively on the subject of fundamental rights. However,
to the extent that the SLFP considered that it “would not be so
naive as to participate in an exercise to repeal the Constitution
we ourselves have promulgated”, the process of self-criticism was
inhibited. On the subject of the scope of the rights, it had this
to say:
The Second Amendment vested supreme state power in
the hands of one individual who is superior to the
National State Assembly and outside the jurisdiction
of the Courts. In this situation, it is essential
that adequate protection should be accorded to the
citizen against the abuse of state power. This can
only be done by strengthening the provisions relating
to fundamental rights. The concept of fundamental
rights was first introduced into our Constitution
in 1972. Since then, many significant developments
in the field of human rights have taken place at the
international level, and a more elaborate definition
of fundamental rights is now almost universally
accepted. We are of the view, therefore, that a
Seminar on the Administration of Justice, Fundamental Rights
and Freedoms: Report of the Proceedings of 28 December 1977.
The memorandum of the SLFP to the select comnittee is published in the Report of the Select Committee, op.cit., at p.165.
137
more comprehensive statement of fundamental rights
should be formulated for incorporation in the
Constitution by reference, in particular, to the
International Covenant on Civil and Political
Rights and the International Covenant on Economic,
Social and Cultural Rights, both of which came
into force in 1976.
While the reason implied in the above paragraph for the sketchy
statement of rights in the 1972 Constitution does not bear examination since the two covenants were already in existence in 1972
though not in force, it was significant that the SLFP had now
re-committed itself, after eighteen years, to the liberalism of
its founder. On the subject of minority rights,too, it had
obviously reverted to its original views:
We recommend that Sinhala and Tamil be declared
the national languages of Sri Lanka while Sinhala
remains as the one official language. We also
recommend that all the existing laws, regulations
and rules relating to the use of the Tamil
language be accorded constitutional status by being
incorporated in the Constitution. These would
include the Tamil Language (Special Provisions)
Act, No.28 of 1958 and the regulations made
thereunder; and the Language of the Courts
(Special Provisions) Law, No.14 of 1973 and the
determinations and regulations made thereunder.
On the subject of the independence of the judiciary, while it
considered the existing provisions adequate to secure the independence of the judges of the superior courts, it recommended that
the Judicial Services Advisory Board with which it had experimented
under the 1972 Constitution’*’ be replaced by the Judicial Service
Commission which had existed under the 1946 Constitution.
On the subject of legislation which contravenes any provision of
the Constitution, the SLFP expressed itself categorically against
the empowering clause in the 1972 Constitution:
We are of the view that it should not be possible
for the National State Assembly to enact, even with
a special majority, a law which in some particular
or respect, is inconsistent with any provision in
the Constitution without first amending or repealing
such provision of the Constitution.
The Judicial Services Advisory Board consisted of the
Chief Justice (ex officio) and four other members appointed by
the President, of whom two were required to be state officers
administering justice. For an evaluation, see N.Jayawickrama,
“Security of Tenure of Judicial Officers – the Sri Lankan Experience”, Commonwealth Judicial Journal, 1980.
138
But on the subject of the enforcement of fundamental rights and
the concept of a Constitutional Court for the review of bills,
the SLFP remained rigidly comnitted to the 1972 Constitution.
While it had “no objection to any further remedies being provided”
for canvassing the validity of administrative action, it strenuously opposed the ex post facto review of legislation. By its
inflexible attitude on this last-mentioned matter, the SLFP not
only denied itself a forum to resist, in later years, the tyranny
of a five-sixth legislative majority, but also offered the government a lever with which to overcome the growing body of opinion
within its own ranks which favoured a strengthening of the citizen’s
rights in respect of legislative action.
There was reason to believe that a bill of rights drafted by
the UNP Government would not only be comprehensive, but would also
be properly enforceable. Firstly, the UNP did not suffer from any
ideological inhibitions. It was a pragpiatic political party,
committed to “dharmishta” – a free and just society, with the
minimum of state control; to the expansion of the private sector
and the dismantling of much of the bureaucratic apparatus which had
grown enormously in recent years; to the lifting of curbs on travel
and all other restraints on individual freedom. The party machinery
had been streamlined and effective power lay in the hands of, and
all decisions of consequence were taken by, its new leader, J.R.
Jayewardene. One of the few surviving members of the State Council
and of the Independence Cabinet of 1948, he was a lawyer who had
abandoned the profession quite early in life to form a radical wing
in the Ceylon National Congress. His own political philosophy had
apparently metamorphosed from extreme right wing in the years of
the Dullesian cold war into “indigenous socialism”. But through it
all, he remained a firm believer in constitutionalism. Secondly,
the experience of the six-year state of emergency under the SLFP
Government was fresh in the minds of the new legislators. Some of
them who had been incarcerated for varying periods at the instance
of the executive had personally experienced the sense of futility
and frustration that must arise when confronted with absolute state
power. Thirdly, the hard core of the new Government was the legal
profession, many of whom while not actually sharing the burden and
responsibilities of day-to-day government, nevertheless continued
to be a powerful pressure group within the party. But many of the
139
expectations were to remain unfulfilled. Once more, it was a
government that was drafting this charter of citizens’ rights.
It would be adopted by a legislature which was governmentcontrolled, and not by the people at a referendum. It would be
operated, in the first instance, by that same government for very
nearly the entire period for which it had been elected. Accordingly, the same constraints that operated on the Constituent
Assembly were to apply to the Select Committee and the National
State Assembly too.^
On 7 June 1978, the Select Committee, by a majority vote,
adopted its report. To the report was annexed, inter alia, a
draft constitution. The two SLFP members submitted a dissent in
which, on the subject of the “free expression of the opinion of
the people in the choice of a legislature”, they observed that
the concept of the cut-off point of 1/8 or 12 per cent in the
proposed system of election by proportional representation was
“utterly undemocratic and unreasonable”; and that the proposal
to impose civic disability on, and move for the expulsion of, a
member of the legislature on account of his political, as distinct
from criminal, conduct, was a device which would enable a parliamentary majority to eliminate its political opponents. The CWC
leader, S.Thondaman, submitted a memorandum in which, apart from
criticising the concept of the cut-off point as being likely to
“wipe out the representation of several recognised political
parties” as well as “cultural and ethnic interests”, he observed
that in respect of fundamental rights:
(a) the proposed limitations were “as extensive and vague” as
section 18(2) of the 1972 Constitution, and
(b) the provisions with regard to urgent bills had already been
abused and would continue to facilitate “vast inroads into
the fundamental freedoms of the people with no real judicial
11 2 scrutiny .
On 22 June 1978, Prime Minister Premadasa presented the report
to the National State Assembly.
For a fuller discussion of the emergence and character of the
UNP, see T.D.S.A.Dissananayake, J.R.Jayewardene of Sri Lanka (Colombo: Swastika Press, 1977), and Eamon Kariyakarawana, JR:The People’s
President (Colombo: State Printing Corporation, 1981).
The dissenting report and memorandum are both reproduced in
the Report of the Select Committee.
140
The bill containing the proposed new constitution was published in the Gazette on 17 July 1978 and presented in the National
State Assembly eight days later. On 2 August, when the Prime
Minister moved its second reading, the two main opposition parties,
the TULF and the SLFP, indicated that they did not propose to
participate in the debate. In a statement which he made before
walking out of the chamber with his party colleagues, TULF leader
Amirthalingam described the struggle “for the liberation of our
people” who had “been enslaved first by the Portuguese, next by
the Dutch, next by the British, and now in the name of independence
by our own brothers, the Sinhalese nation”. On behalf of the SLFP,
Mrs.Bandaranaike rejected the proposed constitution and withdrew
from the chamber. In her statement, she protested that after the
report of the Select Committee had been presented to the Assembly
and published as a Sessional Paper, three new sections had been
smuggled into the draft constitution:
These sections are so fundamental in nature and so
draconian in character that had they even been
suggested at a meeting of the Select Committee, the
Sri Lanka Freedom Party would have immediately
withdrawn, and disociated itself from further
deliberations of the Select Conmittee. These
three sections, in our view, constitute the most
diabolical threat to the continued survival of the
democratic process in Sri Lanka.
The three sections referred to by her were:
a) Section 157 which made it an offence to advocate the amendment
of the constitution otherwise than in accordance with the
prescribed procedure:
The punishment for speaking out one’s thoughts,
for expressing one’s ideas on change, for seeking
to assert one’s freedom of speech, is imprisonment
for ten years, an unlimited fine, forfeiture of
all property, loss of one’s seat in Parliament
and the disqualification for all time and for all
purposes, of all the candidates of the political
party to which one belongs.2
b) Section 158 which prohibited Parliament from enacting a law in
contravention of the provisions of a treaty or agreement
relating to foreign investment in Sri Lanka which had been
National State Assembly Debates, 2 August 1978.
Ibid. This section was deleted before the National State
Assembly was called upon to vote for the adoption of the draft
constitution. H.W.R.Wade, in the course of his Hamlyn Lecture in
141
approved by Parliament by a resolution passed with a two-third
majority:
At the time when sovereign governments and international organisations are acting in unison to
curb the corrupting tentacles of multinational
corporations, you are seeking by means of your
constitution to place our country at the disposal of foreign adventurers, and to make our
people and our people’s representatives impotent
to act in the national interest should it become
necessary to do so.^
c) Section 161 which provided that where a Member of Parliament
ceased by resignation, expulsion or otherwise, to be a member
of the political party to which he belonged at the time of the
commencement of the constitution, his seat would become vacant,
and that political party would be entitled to nominate another
person to fill that vacancy:
A Member of Parliament, having campaigned
strenuously in his electorate, having faced
the vicissititudes of a general election,
having been elected by the free votes of an
overwhelming majority of the voters, can now
be summarily removed from Parliament and
replaced by one more acceptable to the
President by the simple device of expelling
him from the party. Such a member would not
have been found guilty of a corrupt or illegal
practice, nor would he have become subject to
any other disqualification. His only crime
would have been to incur the wrath or the
displeasure of His Excellency the President.
Parliament will soon comprise not members
elected by the people representing their
simple aspirations and sensitive to their
daily problems, but the President’s nominees
reflecting his conception of a Sri Lanka as
another Singapore or South Korea, sharing
his dreams of an era of unbridled capitalism,
and helping him reach his goal of absolute
power.2
On the subject of fundamental rights, she objected to “the illusion’
which was sought to be created by the draft constitution:
In reality, some of the most fascist legislation
of recent times, such as the Parliamentary (Powers
and Privileges) (Amendment) Law, the Special Presidential Commissions of Inquiry Law, the Criminal
1980, described this section as a “bizarre form of entrenchment”;
see H.W.R.Wade, Constitutional Fundamentals (London: Stevens & Sons,
p.40.
Ibid.
Ibid.
142
Procedure (Special Provisions) Law, the Proscribing
of Liberation Tigers of Tamil Eelam and Other Similar
Organisations Law, and the Local Authorities (Imposition of Civic Disabilities) Bill . . . are being
entrenched as “existing law”.
On 16 August, the National State Assembly, with 137 voting in favour
and none against, enacted the Constitution of the Democratic Socialist Republic of Sri Lanka. Mr.Thondaman voted in favour:
I do not for a moment say that this Constitution is
perfect or ideal or that it provides equality of
status for Tamils. But I definitely say that this
is an improvement on what went before. Particularly
for the sections of the people who have been kept
out for the last thirty or forty years, anything
given is an improvement;2
and a month later, accepted a portfolio in the Cabinet. On 31 August 1978, the bill was certified by the Speaker, and on 8 September
1978, the new Constitution was brought into operation, thus estab3
lishing the Second Republic.
The Protected Rights
Chapter III of the Constitution contains the substantial
portion of the protected rights:
a) freedom of thought, conscience and religion
b) freedom from torture
c) the right to equality
d) freedom from arbitrary arrest, detention and punishment
e) the right to a fair trial
f) protection against the retroactivity of the criminal law
g) freedom of speech
h) freedom of peaceful assembly
i) freedom of association, including the freedom to form and
join a trade union
j) freedom to engage in any occupation
k) freedom of movement
1) freedom to enjoy own culture and use own language.
These rights are protected by the provision that their amendment or
repeal requires the affirmative votes of not less than two-thirds
These laws are discussed in Ch.III.
National State Assembly Debates, 16 August 1978.
The expression “Second Republic” in used by A.J.Wilson in
his study of the 1978 Constitution, The Gaul list System in Asia
(London: Macmillans, 1980).
143
of the total number of members of Parliament; in the case of the
first two rights enumerated above, approval by the people at a
referendum is also required.’*’ Unlike in the 1972 Constitution,
the rights relating to, or arising from, the deprivation of
personal liberty, have been made applicable to “all persons”,
while the others are confined to citizens. But what is more
significant and relevant, in the particular circumstances of Sri
Lanka, is the following provision which was included in the
Constitution at the insistence of the leader of the CWC:
A person who, not being a citizen of any other
country, has been permanently and legally resident
in Sri Lanka immediately prior to the commencement
of the Constitution and continues to be so resident
shall be entitled, for a period of ten years from
the commencement of the Constitution, to the rights
declared and recognised by paragraph (1) of this
Article. 2
The “stateless” community of Indian Tamils, who remained unrecognised
under the 1972 Constitution, were now guaranteed all the rights
enjoyed by the citizens, for a period of ten years by when, hopefully,
the Indo-Ceylon Agreements of 1964 and 1974 would have been fully
implemented and the problem of statelessness no longer existed.
The Inadequately Protected Rights
This statement of fundamental rights is more comprehensive
than that contained in the 1972 Constitution, and has been formulated
with a greater degree of care and precision. Yet, when examined and
contrasted against international law, it is still deficient. For
instance:
“Birth or other status” an expression capable of extending the
protection of fundamental rights to children who at birth are
regarded as illegitimate, and therefore devoid of all the
legal attributes of a “child”, is not one of the prohibited
grounds of discrimination.
The grounds on which a person may be deprived of personal
liberty are not prescribed. The right of a person deprived
of his liberty to trial within a reasonable time or to release
Arts. 82-84.
Art.14(2). Some others who gave evidence before the select
committee also urged that fundamental rights be made applicable to
the Indian Tamils who were not yet citizens of Sri Lanka. See, e.g.,
the evidence of Vajira Cabraal who was a member of the delegation
from the Centre for Society and Religion: Report of the Select
Committee, p.288.
144
on bail; the right to take proceedings before a court in order
that that court may decide without delay on the lawfulness of
his detention and order his release if the detention is not
lawful; the enforceable right of a victim of unlawful arrest
or detention to compensation; the right of juveniles and unconvicted persons to segregation and separate treatment in prison;
and the right not to be imprisoned for inability to fulfil a
contractual obligation, have all been omitted.
The right to a fair hearing “for the determination of his civil
rights and obligations” is not protected.
The rights of accused persons which have been enumerated do
not include:
a) the right to be informed promptly and in detail in a language
which he understands of the nature and cause of the accusation
against him;
b) the right to have adequate time and facilities for the preparation of his defence and to communicate with counsel of
his own choosing;
c) the right to be tried without undue delay;
d) the right to examine or have examined witnesses against him
and to obtain the attendance and examination of witnesses on
his behalf under the same conditions as witnesses against him;
e) the right not to be compelled to testify against himself or
to confess guilt;
f) the right, if convicted, to have his conviction and sentence
reviewed by a higher tribunal;
g) the right not to be tried or punished again for an offence
for which he has already been finally convicted or acquitted;
h) the right to be compensated if he has been the victim of a
miscarriage of justice.
The right to freedom of speech and expression does not include
the freedom “to seek, receiveand impart information and ideas”.
The right to freedom of movement does not include the freedom
to leave the country.
The Omitted Rights
As with the 1972 Constitution, a number of rights have been
omitted altogether. For instance:
The “inherent” right to life is not protected. While provision
145
has been specifically made for the imposition of the death
penalty, the concomitant duties not to impose sentence of death
on persons below 18 years (or over 70 years) of age; not to
execute such sentence on pregnant women; to confine such
sentence only for the most serious crimes and pursuant to a
final judgment rendered in accordance with a law enacted prior
to the commission of the crime; not to extend such punishment
to crimes to which it does not at present apply; not to reestablish it once it has been abolished; and to recognise the
the right to seek amnesty, pardon or commutation of sentence,
are all omitted.
Slavery, the slave trade, servitude, and forced or compulsory
labour are not prohibited.
The family rights are not provided for.
The right to privacy, honour and reputation is not guaranteed.
The rights relating to property, which the UNP had strenuously,
but unsuccessfully, urged for inclusion in the 1972 Constitution,
are omitted.
The rights relating to politics and democracy which were
2
contained in the 1972 Constitution have been repeated. The
inequality which then existed in regard to suffrage has been remedied
in the process of introducing the concept of proportional represent3
ation. Hereafter, the value of a seat in Parliament will be
ascertained in the following manner:
The total number of electors whose names appear in the
registers of electors of all the electoral districts
is divided by 160. The whole number resulting from
such division is referred to as the ‘qualifying number’.
The total number of electors of each electoral district
is then divided by the qualifying number, and each
electoral district is entitled to return such number
of members as is equivalent to the whole number resulting
from the division of the total number of such electors
in that electoral district by the qualifying number.
Accordingly, the number of votes required to win a seat will be the
same throughout the country. However, some distortion has been
The art of telephone tapping is now reportedly being perfected by the security arm of the state. A recent report claimed that
the purchase of “sophisticated equipment” by the Intelligence Services Division will enable that Division’s “telephone surveillance
unit” stationed at “the Telephone Tapping Roan at No.10 Cambridge
Place, Colombo” to have “much wider access to telephone surveillance
and will cover not only the city but the suburbs too”: Weekend Sun,
9 January 1983, p.l.
Arts.62, 70, 76, 88, 90, 93. 3. Arts.98, 99.
146
introduced into the scheme by the requirement that a further 36
seats be allocated equally among the nine provinces.”^ Consequently,
province ‘A’ which has three electoral districts will return four
additional members, while province ‘B’ which in itself constitutes
just one electoral district will also return the same number of
additional members. In other words, more votes would be required
to secure a seat in the three electoral districts of province ‘A’
than in the single electoral district of province ‘B’. To that
extent, the right to “equal suffrage” is impaired.
Two other provisions appear to infringe upon the principle
of the “free expression of the will of the electors”:
Article 99 (5) (a) provides that:
Every recognised political party and independent
group polling less than one-eighth of the total
votes polled at any election in any electoral
district shall be disqualified from having any
candidates of such party or group being elected
for that electoral district.
The votes polled by a disqualified party are deducted from the
total votes polled at the election in that electoral district,
and are thereafter not taken into account for any purpose whatsoever. In other words, even if a political party or independent
group has polled a sufficient number of votes to secure at least
one seat, such party or group will not be allocated that seat
if it has polled less than one-eighth of the total polled by
all the parties in that electoral district. Consequently, small
political parties and interest or pressure groups, including
minorities, will have little chance of being represented in the
legislature.
Article 81 enables Parliament, by a resolution passed by twothirds of its members, to impose civic disabilities on a person
for a period of up to seven years, and to expel such person
from Parliament if he is already a Member of Parliament. This
power may be exercised only if a Special Presidential Commission
of Inquiry has found that person guilty of abuse or misuse of
power, political victimisation or corruption. None of -these
concepts have been defined by law; nor are any of them criminal
offences. In the exercise of this power, it would be possible
Art. 96(4).
147
for a government to eliminate from the legislature some at
least of its political opponents for political conduct which
was hitherto judged, not by judges sitting as commissioners,
but by the people at a general election.^
The right to an independent and impartial tribunal has been
guaranteed in the usual manner by providing for the security of
2
tenure of judges. In respect of judges of subordinate courts
this has been done by re-introducing the Judicial Service Commission which existed under the 1946 Constitution. For the first
time, the jurisdiction of the superior courts has been set out in
the Constitution, thus minimising the danger of any erosion of
judicial power through legislative action. But while seeking to
safeguard the independence and impartiality of the administration
of justice in the years to come, the Constitution in its transitional provisions dealt an almost irrecoverable blow at these
very same concepts. While Article 164 provided that all persons
who held office in subordinate courts and tribunals immediately
before the commencement of the Constitution would continue to hold
such offices under the same terms and conditions, Article 163
provided that:
All Judges of the Supreme Court and the High Courts
established by the Administration of Justice Law,
No.44 of 1973, holding office immediately before the
commencement of the Constitution shall, on the
commencement of the Constitution, cease to hold office.
This section applied to persons who already enjoyed constitutional
guarantees of security of tenure in terms no different to that
which their successors were to be offered by the new Constitution.
As Mrs.Bandaranaike warned in the National State Assembly:
Every Constitution has guaranteed the judges of our
highest courts security of tenure and provided that
they may be removed by Parliament for proved misconduct. Every government has so far honoured this
provision whenever it has sought either to amend or
replace a Constitution. For the first time, the
present Government is seeking to remove all the judges
of the two highest courts in the country in order to
constitute new courts of a particular flavour. This
blatant and gross interference with the judiciary
Infra, p.226.
Infra, p.193.
148
can only result in creating courts whose term of
office would necessarily have to be limited to that
of the government itself. ^
The right of the Tamil minority community “to use their own
language” was more adequately protected than in the past. Ironically, the constitutional provisions were substantially those
proposals which the SLFP had submitted to the Select Committee,
but which, while in office, it had not found possible to offer.
While continuing to recognise Sinhala as the official language, the
Constitution accorded to both Sinhala and Tamil the status of
2
“national languages of Sri Lanka”. A Tamil-speaking person was
guaranteed the use of his language:
a) in Parliament or in a local authority;
b) as a medium of instruction in school and in university;
c) to correspond with officials;
d) to transact business with any official, and therefore, to
obtain from such official, documents, or copies of, or extracts
from, any official register, record, publication or other
document, in his language;
e) as a medium of examination for admission into the state services;
f) to institute, or to participate in, proceedings in any court or
tribunal.
The State was required to make laws, subordinate legislation, orders,
proclamations, notifications, etc.,and to publish the Gazette and
all other official documents, including circulars and forms, in
both national languages. While Sinhala continued to be the language
of administration and of the courts throughout the country, Tamil
was granted an equivalent status in the northern and eastern
provinces. But in one field of activity, the Sinhala-speaking
person continued to have an edge over his fellow Sri Lankan: while
a Sinhala-speaking state officer was not required to have a knowledge of, or to acquire proficiency in, the Tamil language, a Tamilspeaking person may be required to have a sufficient knowledge of
the official language as a condition for admission into a state
service, or to acquire such proficiency within a reasonable time
3
after admission.
National State Assembly Debates, 2 August 1978. Cf. circumstances leading to the removal of some of the judges of the Court
of Appeal in 1973, infra, p.
Art.19. 3. Art.12(2), proviso.
149
Limitations on the Exercise and
Operation of the Fundamental
Rights
Existing Law
Article 16(1) provided that:
All existing written law and unwritten law shall be
valid and operative notwithstanding any inconsistency with the preceding provisions of this Chapter.
Accordingly, as in the 1972 Constitution, the protected rights
would operate subject to the entire body of existing law.^
Exemption and Restrictive Clauses
Apart from the right to freedom of thought, conscience and
religion, and the right to freedom from torture and cruel, inhuman
or degrading treatment or punishment, the other protected rights
were subject to exemption and restrictive clauses. These clauses,
though drafted with greater circumspection than previously, were
sometimes as irrational as in the 1972 Constitution. For instance,
the right of a citizen to return to Sri Lanka is subject to:
such restrictions as may be prescribed by law in
the interests of national security, public order
and the protection of public health or morality,
or for the purpose of securing due recognition and
respect for the rights and freedoms of others, or
of meeting the just requirements of the general
welfare of a democratic society.2
The following is a table of the exemptions and restrictions:
TABLE 17
EXEMPTIONS AND RESTRICTIONS ON THE
EXERCISE AND OPERATION OF THE
FUNDAMENTAL RIGHTS IN THE
1978 CONSTITUTION
Right . Restrictions
Thought, Conscience and Religion
Torture; Cruel, inhuman or degrding treatment or punishment
Equality before the law and equal
protection of the law A B C D E K L
Discrimination A B C D E M L
Access to shops, etc. A B C D E N L
For a detailed examination of the effect of this provision,
see Ch.III.
Art.15(7).
150
Right Restrictions
Arrest A B C D E K L
Deprivation of personal liberty A B C D E K L V
Fair trial K
Punishment K
Presumption of innocence A K R L
Retroactive legislation A K L S T
Speech and Expression A B C D E F J K L
Peaceful assembly A B C D E F K L
Association A B c D E F H K L
Trade unions A B c D E K L
Worship A B c D E K L
Rights of minorities A B c D E K L
Occupation and Profession A B c D E G K L
Movement A B c D E H K L
Right of return A B c D E K L
A: Interests of national security
B: Interests of public order
C: Protection of public health or morality
D: Purpose of securing due recognition and respect for the
rights and freedoms of others
E: Purpose of meeting the just requirements of the general
welfare of a democratic society
F: Interests of racial and religious harmony
G: In relation to (a) the professional, technical, academic,
financial and other qualifications necessary for practising any profession or carrying on any occupation, trade,
business or enterprise, and the licensing and disciplinary
control of the person entitled to such fundamental rights,
and (b) the carrying on by the State, a State agency or
a public corporation of any trade, business, industry,
service or enterprise whether to the exclusion, complete
or partial, of citizens or otherwise.
H: Interests of national economy
J: In relation to parliamentary privilege, contempt of court,
defamation or incitement to an offence
K: In their application to the members of the Armed Forces,
Police Force and other Forces charged with the maintenance of public order, to such restrictions as may be
prescribed by law in the interests of the proper discharge
of their duties and the maintenance of discipline among
them
L: Derogable during a state of emergency
151
M: Exemption relating to knowledge or proficiency in the
official language
N: Exemption in favour of women, children and disabled
persons
P: Exemption in respect of the deprivation of liberty
pending investigation and trial
R: Exemption in respect of proving particular facts
S: Exemption in respect of criminal acts in accordance with
general principles of law recognised by the comnunity
of nations
T: Exemption in respect of a minimum penalty
V: Exemption in respect of the deprivation of personal liberty
pending deportation
As in the 1972 Constitution, the terminology in which the restrictions are imposed is:
shall be subject to such restrictions as may be
prescribed by law in the interests of . . . 1
Inconsistent Legislation
Article 84 provided that a bill which is inconsistent with any
provision of the Constitution may be passed with a two-third majority, and may thereafter co-exist with the inconsistent provision
of the Constitution. Where the amendment or repeal of such provision
requires approval by the people at a referendum as well, such bill
would have to comply with that requirement too. But finally, as
under the 1972 Constitution, a law which infringes a fundamental
2
right may validly be enacted and remain on the statute book.
Validity of Laws Not to be Questioned
Article 80(3) provided that:
Where a Bill becomes law upon the certificate of
the President or the Speaker, as the case may be,
being endorsed thereon, no court or tribunal shall
inquire into, pronounce upon, or in any manner
call in question, the validity of such Act on any
ground whatsoever.
Accordingly, it was possible, as under the 1972 Constitution, for
a bill which was in conflict with a fundamental right, and to which
Article 84 should have applied, to find its way into the statute
book through a simple majority and to remain there, for the reason
that no question of inconsistency in relation to such bill was
3
raised within the prescribed time in the prescribed manner.
The scope of the exemption and restrictive clauses is examined
in Ch.III.
For instances when such bills have been passed, see Ch.V.
For an example of such a bill, see p.312.
152
The Enforcement of Fundamental Rights
Review of Bills
Apart from a few cosmetic changes, the procedure for the
review of bills remained the same as under the 1972 Constitution.
The Supreme Court replaced the Constitutional Court; the President,
and not the Speaker, refers bills for examination by the Court;
and the Supreme Court now has three weeks, and not two as in the
past, to communicate its determination. In regard to urgent bills,
the President may extend the 24-hour limit to a period not exceeding three days for the communication of the determination.^
Review of Administrative Action
In a radical departure from the previous constitution,
provision was made in 1978 enabling a person to apply to the
Supreme Court, in respect of the infringement or imninent infringement, by executive or administrative action, of a fundamental
right to which such person is entitled. An application for
relief or redress is required to be made, with the leave of the
Supreme Court first had and obtained, within one month of the
action complained of. The Supreme Court is required to hear and
finally dispose of such complaint within a period of two months,
and for this purpose it is empowered to “grant such relief or
make such directions as it may deem just and equitable in the
circumstances”. ^
Arts. 118, 121-123. For a detailed examination of this
method of enforcement, see Ch.V.
Arts, 17, 126. For the application of this remedy, see
Ch.VI.
CHAPTER III
THE CONTENT OF THE FUNDAMENTAL RIGHTS
The 1978 Constitution describes itself in the preamble as the
“Supreme Law” of the Republic. Other Commonwealth Constitutions
which use this expression proceed to amplify it by stating that a
law inconsistent with any provision of the Constitution shall, to
the extent of such inconsistency, be void and of no effect.’*’ This
Constitution, however, contains the very unusual and paradoxical
provision that “all existing written law and unwritten law shall be
as valid and operative notwithstanding any inconsistency” with the
2
statement of fundamental rights contained therein. In other words,
the statement of fundamental rights in the Constitution, at least
in regard to existing law, is not supreme; existing law in conflict
with any attribute of a protected right, whatever its origin may be,
prevails to the exclusion of that attribute. Such a law prevails
whether or not it can be brought within the permissible grounds on
which Parliament may further restrict the exercise and operation of
fundamental rights.
It has already been noted that the legislature has failed to
include within each definition of a right all the recognised attributes of that right. It is now proposed to ascertain the actual
content of the fundamental rights declared and recognised in the
1978 Constitution after each has been subjected to the debilitating
effect of existing written law. It is also proposed to examine the
scope of Parliament’s power to further restrict by law the exercise
3
and operation of these rights.
See, for example, the Constitution of Ghana, Art.1(2).
Art.16(1).
For the interpretation of the human rights concepts by
independent international institutions and superior national courts,
see Paul Sieghart, The International Law of Human Rights (Oxford:
Clarendon Press, 1983).
154
THE RIGHTS
Freedom from Arbitrary Arrest
Article 13(1) states that:
No person shall be arrested except according to
procedure established by law. Any person arrested
shall be informed of the reason for his arrest.
This Article appears to contemplate the power of arrest
being exercised by the traditional law enforcement agencies, namely,
the courts and the police, according to well-established principles
of criminal justice.’‘ But since this Article is read subject to existing law, the protection offered is considerably less than what it appears to be. Under existing law, an arrest may be made either on a warrant or without a warrant. A warrant may be issued by a 2 3 4 judge, a justice of the peace, a commission of inquiry, Parliament or a parliamentary committee,^ or a Minister of the Government. An arrest without a warrant may be made by a police officer,^ a judge,® a headman,^ a revenue officer,^ a prisons officer,’”*’ an
12 13 excise officer, an officer of the Ceylon Transport Board, a
14 15 railway official, an officer of the Salt Department, a forest
16 17 officer, a customs officer, a public officer authorised by the
18 19 Government Agent, or by the Government Agent himself, or by a
20 private person. A person making an arrest “may use all means
Gopalan v. State of Madras (1950) SCR 88.
Administration of Justice Law, s.84; Excise Ord.,s.36; Civil
Procedure Code, ss.298, 650; Mental Diseases Act, s.3.
Mental Diseases Act, s.7.
Bribery Act, s.34(2).
Parliamentary (Powers and Privileges) Act, S.27A.
Proscribing of Liberation Tigers of Tamil Eelam and Other
Similar Organisations Law, s.11; Mental Diseases Act, s.6.
Administration of Justice Law, s.85; Official Secrets Act,
s.19; Stay-in Strikes Act, s.2(b); Excise Ord., ss.34,35; Police
Ord., ss. 63, 69; Firearms Ord., s.38; Forest Ord., s.48; Parliamentary (Powers and Privileges) Act, s.21; Houses of Detention Ord.,
s.10.
Administration of Justice Law, s.87; Firearms Ord., s.38;
Salt Ord., s.20; Firearms Ord., s.38.
Firearms Ord., s.38; Excise Ord., s.35.
Administration of Justice Law, s.88.
Excise Ord., ss.34, 35, 37; Salt Ord., s.20.
Motor Transport Act, S.84B.
Railways Ord., s.38.
Salt Ord., s.20.
Forest Ord., s.48.
Customs Ord., s.127; Excise Ord., s.35.
Firearms Ord., s.38.
Excise Ord., ss. 36, 37.
Administration of Justice Law, s.86; Police Ord., s.94.
155
necessary to effect the arrest”,”*- including causing the death of
2
that person if he is accused of an offence punishable with death.
For the purpose of making an arrest, he may enter and search any
premises and may, if necessary, break open any outer or inner
3 4 door to effect such entrance. A person arrested may be searched.
A person who is arrested shall be informed of the reasons for
his arrest. The purpose of this requirement is to inform the
detained person adequately of the reasons for his arrest so that he
may judge the lawfulness of the measure and take steps to challenge
it if he sees fit.^ Such an opportunity is afforded by Article 13(2).
The exercise and operation of this right may be restricted
by law in the interests of national security, public order or the
protection of public health or morality, or for the purpose of
securing due recognition and respect for the rights and freedoms of
others, or of meeting the just requirements of the general welfare
of a democratic society. Under international law, however, this
right is absolute.^ On the one hand, the limitation clause appears
to be irrelevant. The procedure of arrest already “established by
law” is to be found in the Criminal Procedure Code, which is of
general application, and in the special statutes referred to above.
If Parliament is to vary that procedure in the interests of, say,
public security, and vest the power of arrest in respect of certain
offences in a larger body of persons such as service personnel, it
can do so only by means of a law, and as soon as it does so, that
would also be a procedure “established by law”. In other words,
the right declared in Article 13(1) is such that a limitation clause
is not necessary in order that the procedure established by law may
be varied, from time to time, to meet the needs of changing conditions and circumstances. On the other hand, the limitation clause
Administration of Justice Law, s.90(1).
Ibid.
Ibid., s.90(2).
Ibid., s.90(5).
See X v. United Kingdom (6998/75), Judgment: 5 November 1981;
The Queen v. Gnanaseeha Thero (1969) 73 N.L.R. 154; Corea v. The
Queen (1954) 55 N.L.R. 457; and the other cases cited in Sieghart,
Human Rights, pp. 150-152.
Art. 15(7). See also Art.15(8) for additional restrictions
in respect of service personnel, and Art.13(7) which exempts a
“removal order” and a “deportation order” from the application of
this Article.
ICCPR, Art.9(1); ECHR, Arts.5(2), 9(2); ACHR, Art.7(3).
156
appears to be indiscriminately worded. The right of an arrested
person to be informed of the reasons for his arrest may be restricted, for instance, by not informing him of the “full reasons”
for his arrest, or perhaps by delaying to inform him of such
reasons. (To deny him reasons altogether may be a denial and not
a restriction of the right). But it is incomprehensible how such
a restriction can become necessary for the purpose of “meeting the
just requirements of the general welfare of a democratic society”,
which is one of the grounds enumerated in the limitation clause.
The general welfare of a democratic society, as distinct from the
interests of national security, ought to require that any member
of that society who is deprived of his liberty should be informed
promptly and in full why he has been so deprived of one of the
essential characteristics of that society.
Freedom from Arbitrary Detention
Article 13(2) states that:
Every person held in custody, detained or otherwise
deprived of personal liberty shall be brought before
the judge of the nearest competent court according
to procedure established by law, and shall not be
further held in custody, detained or deprived of
personal liberty except upon and in terms of the order
of such judge made in accordance with procedure
established by law.
The purpose of bringing an arrested person before a judge is
three-fold: firstly, to interpose a person who is independent both
of the executive and of the party concerned; secondly, to enable
such person to hear the individual brought before him; and thirdly,
to enable him to review the circumstances militating for and against
detention and decide, by reference to legal criteria, whether there
are reasons to justify detention and to order his release if there
are no such reasons.^ The object of this exercise is to give the
arrested person an opportunity of exculpating himself as soon as
possible. There is, therefore, implied a right to be heard either
2
in person or, where necessary, through some form of representation.
In other words, there is at that stage, a justiciable issue before
3
a court.
Schiesser v. Switzerland (7710/76), Judgment: 2 EHRR 417.
Winterwerp v.”Netherlands (6301/73), Judgment: 2 EHRR 387.
Kolugala v. Superintendent of Prisons (1961) 66 N.L.R. 412.
157
Under existing law, a person arrested under the Customs
Ordinance or the Railways Ordinance is not brought before a judge,
but taken before the principal collector of customs or the station
master, as the case may be.^ Nor is a person arrested under the
Police Ordinance for being drunk in a public place brought before
2
a judge; he is held in police custody “until he gets sober”.
Under the Parliamentary (Powers and Privileges) (Amendment) Law,
No.5 of 1978, a person arrested by order of Parliament or a parliamentary committee is produced before Parliament or such committee,
and no court has jurisdiction to examine the validity of, or the
3
sufficiency of reasons for, such arrest. Two statutes passed
three months before the 1978 Constitution came into force took
away altogether the court’s power to examine the justification for
certain arrests. The Criminal Procedure (Special Provisions) Law,
No.15 of 1978, required every court before which any person is
produced “on an allegation that he has committed or has been concerned in committing, or is suspected to have committed or to have
been concerned in committing” any one of a large number of scheduled
offences under the Penal Code, to remand such person until the
conclusion of the trial, and in the event of an appeal following
4
conviction, until the determination of the appeal. The Proscribing of Liberation Tigers of Tamil Eelam and Other Similar Organisations Law, No. 16 of 1978, contained a similar injunction in
respect of persons “suspected or accused of any offence” under that
law.~*
The exercise and operation of this right may be restricted by
law in the interests of national security, public order, or the
protection of public health or morality, or for the purpose of
securing due recognition and respect for the rights and freedoms
of others, or of meeting the just requirements of the general
£
welfare of a democratic society. The unduly wide scope of this
Customs Ord., s.127; Railways Ord., s.38.
S. 69(2).
S. 4.
S. 2.
S. 8.
Art.15(7). See also Art.15(8) for additional restrictions
ir> respect of security personnel.
158
limitation clause is immediately apparent. For instance, is it
conceivable that “in the interests of the protection of public
morality”, someone other than a judge should determine whether
and for how long a person should be held in custody; or that the
concept of judicial supervision should be restricted “for the
purpose of meeting the just requirements of the general welfare
of a democratic society ? Under international law, this right is
absolute.^
The Right to a Fair Trial
Article 13(3) states that:
Any person charged with an offence shall be entitled
to be heard, in person or by attorney-at-law, at a
fair trial by a competent court.
Article 13(5) adds:
Every person shall be presumed innocent until he is
proved guilty:
Provided that the burden of proving particular facts
may be placed on an accused person.
The four protected elements of this right, therefore, are:
The right to a competent court
The right to a fair trial
The right to be heard, in person, or by an attorney-at-law
The right to be presumed innocent until proved guilty.
The concept “court” applies to an organ which can be said,
because of the way it is organised, to have a judicial character
in that it is independent of the executive and of the parties to
2
the case; it must also offer adequate procedural guarantees. The
expression “fair hearing” means, generally, that the tribunal
which adjudicates upon a person’s rights must act fairly, in good
faith, without bias and in a judicial temper, and must give such
3
person the opportunity adequately to state his case.
The Parliamentary (Powers and Privileges) (Amendment) Law,
No.5 of 1978, which was certified seven months before the Constitution came into operation, provides for a trial to take place
before an institution other than a court. Under that law, every
ICCPR, Art.9(3); ECHR, Art.5(3); ACHR, Art.7(5).
Eggs v. Switzerland (7341/76). Report: DR 15, 35.
Duke v. The Queen /19727 SCR 917.
159
breach of privilege is an offence punishable summarily by Parliament; Parliament being deemed for such purpose to be the “competent
court”. However, no procedure has been prescribed by law for such
trial and whether or not the elements of a “fair trial” would be
afforded appears to depend very much on the mood of Parliament at
the relevant time. On the occasion that this Law was first
invoked, on the same day that- it was certified, the National State
Assembly resolved shortly after 2 p.m. that two newspapermen be
ordered to attend before the Assembly at 5 p.m. to show cause why
they should not be punished for having published a defamatory statement concerning a Member of Parliament.’*’ Upon their appearing,
without lawyers, the 168-member Assembly formed itself into a
Committee of the Whole Assembly and heard prepared statements in
which the newspapermen admitted the facts alleged and apologised
profusely._ Several members then proceeded to question them.
Thereafter, they were asked to withdraw “in the custody of the
Sergeant-at-Arms” while the Assembly deliberated on what action it
should take. It was unanimously resolved that a fine be imposed,
the actual quantum having given rise to some differences of opinion.
The Prime Minister thought that the Assembly “has conducted itself
admirably on the first occasion on which it is sitting in the
capacity of a court”, although he did confess that “we do not know
exactly what crime the two suspects have committed because we did
3
not go into the details of it”. In fact, the two accused had
neither pleaded, nor been called upon to plead. In proposing that
a fine of Rs.1000 be imposed on each accused, Prime Minister
Jayewardene explained:
The reason why we have decided to impose a fine is
that, firstly, we want to give a donation to the Deaf
and Blind School; secondly, we wish to show that this
Bill is now a Law with teeth in it, and in future
anybody who comes before this House may not escape
with a fine; thirdly, the Associated Newspapers of
Ceylon Ltd, of which I am a shareholder, is not an
indigent organisation. It has enough money to pay
the fine of both these editors.^
This matter arose out of an inadvertent mix-up of captions
below two photographs, one of which was of the Minister of Foreign
Affairs being shown around an industrial complex in South Korea, and
the other was of a man travelling in a launch accompanied by a woman.
For the proceedings of this “trial” see National State Assembly Debates, 2 February 1978, cols. 943-946, 999-1037.
Ibid., col.1034.
Ibid., cols. 1034-5.
160
Since the Associated Newspapers of Ceylon Ltd was a governmentcontrolled company in which the Public Trustee held 75 per cent
of the shares on behalf of the Government, and it functioned as
an institution under the charge of the Prime Minister, it is
reasonable to assume that this “legal proceeding” was undertaken
at such short notice, without affording the “accused persons”
the basic rights of defence, and the penalty was determined in
such perfunctory fashion, with some other objective in view. The
objective probably was, in the words of the Prime Minister, “to
show that this . . . is a law with teeth in it”. Another
Minister expressed this idea more emphatically when he warned
newspapermen to “take to heart and learn that hereafter they
should not – they dare not – attack this Government in a low and
unseemly manner”.^
The right to be presumed innocent is, in popular terms, a
way of expressing the fact that the prosecution has the ultimate
burden of establishing guilt. If there is any reasonable doubt at
the conclusion of the case on any element of the offence charged,
an accused person must be acquitted. In a more refined sense, the
presumption of innocence gives an accused the initial benefit of a
2
right of silence and the ultimate benefit of any reasonable doubt.
A rebuttable presumption of fact which the defence may, in turn,
disprove (e.g. a statutory provision which states that when
certain facts are proved by the prosecution, certain other facts
shall be presumed) does not perhaps vitiate this presumption.
3
Existing law contains several such provisons. However, this form
of provision could, if widely or unreasonably worded, have the same
effect as a presumption of guilt. The European Commission has
observed that it is not sufficient to examine only the form in
which the presumption is drafted; it is necessary to examine its
4
substance and effect.
Cyril Mathew, ibid., col.1034.
The Queen v. Appleby /1972.7 SCR 303.
Protection of Produce Ord., s.4; Old Metal Ord., s.8; Forest
Ord., s.52; Fisheries Ord., ss.23, 24; Excise Ord., s.53; Gaming
Ord., ss.7, 8; Betting on Horse Racing Ord., ss. 18, 19; Food and
Drugs Ord., ss. 8, 52.
X v. United Kingdom (5124/71), CD 42, 135.
161
The proviso to Article 13(5) allows the burden of proving
particular facts to be placed, by law, on an accused person. This
principle is also enunciated in section 103 of the Evidence Ordinance,
and further amplified in section 105. That latter section states
that when a person is accused of any offence, the burden of proving
the existence of circumstances bringing the case within any of the
general exceptions in the Penal Code, or within any special except –
tion or proviso contained in any other part of the same Code or in
any law defining the offence, is upon him, and the court shall
presume the absence of such circumstances. For example, where the
mitigatory plea of grave and sudden provocation is set up, the burden
of proving the facts giving rise to that plea falls on the accused.
In The King v. Chandrasekera, ^ a bench of seven judges held that
an accused person cannot discharge the burden required of him by
section 105 by merely adducing evidence, or by creating in the minds
of the jury a reasonable doubt whether the facts on which the
relevant exception is based, existed or not. That section requires
the accused not merely to lead evidence, but to ensure that the
effect of the evidence led is to persuade the jury that the facts
relied upon as the basis of the exception, actually existed.
The right to a fair trial by a competent court, including the
right to be defended, is, as in the international instruments,
absolute and non-derogable. The presumption of innocence, however,
which under international law is also absolute, may here be restr2
icted by law in the interests of national security.
Protection against Retroactivity of the Criminal Law
Article 13(6) states that:
No person shall be held guilty of an offence on account
of any act or omission which did not, at the time of
such act or omission, constitute such an offence, and no
penalty shall be imposed for any offence more severe
than the penalty in force at the time such offence was
conmitted.
This Article also provides, as an exception to the rule enunciated
therein, that a person may be tried and punished “for any act or
omission which, at the time when it was committed, was criminal
according to the general principles of law recognised by the
(1942) 44 N.L.R. 97.
See also Art.15(8) for additional restrictions on the
presumption of innocence and for restrictions on the right to a
fair trial in respect of security personnel.
162
community of nations”. This provision has been borrowed from
ICCFR, Article 15(2), and ECHR, Article 7(2). It does not appear
in later instruments such as the ACHR. In X v. Belgium,^ the
European Commission explained, with reference to the travaux
preparatoires, why that provision had been included in the ECHR.
It was to make it clear that ECHR, Article 7(1) “does not affect
laws which, under the very exceptional circumstances at the end
of the Second World War, were passed in order to suppress war
crimes, treason and collaboration with the enemy”. This provision
was designed to meet objections such as those levelled against
the war crimes tribunals that they applied retrospective legislation. The Commission has applied this provision only in cases
from countries occupied during the Second World War which subseqr
uently introduced retrospective legislation to punish collaborators.^
The apparently inadvertent inclusion of this provision in the
1978 Constitution suggests that it will be competent for a Sri
Lankan court to enforce the law of another State even where the
conduct concerned is not contrary to Sri Lankan law. In other
words, a person may be tried and convicted in Sri Lanka for an
act or omission which does not constitute a crime in Sri Lanka.
This is not only contrary to the principle of legality inherent in
the substantive Article; it is also in conflict with State practice
which excludes the enforcement of a foreign criminal judgment if
3
the act concerned in not an offence in the enforcing State.
Article 13(6) also states that it shall not be a contravention of the rule against retroactivity to require the imposition
of a minimum penalty for an offence, provided that such penalty
does not exceed the maximum penalty prescribed for such offence
at the time such offence was committed. In the United States, the
Supreme Court has held that in determining whether legislation
increases the punishment for a prior offence, the key question is
whether the new law makes it possible for the accused to receive
a greater punishment, even though it is possible for him to
receive the same punishment under the new law as could have been
1038/61, YB 4, 324.
See, for example, De Becker v. Belgium (214/56), Judgment:
1 EHRR 43, Report: 21 August 1961.
F.G.Jacobs, The European Convention on Human Rights
(Oxford, 1975), p.123. See European Convention on the International Validity of Criminal Judgments (European Treaty Series,
No.70), Art.4(1).
163
imposed under the prior law.”*- If this test is applied, the third
paragraph of Article 13(6) contains, contrary to what is stated
therein, an exception to the substantive rule.
The third exception to the rule enunciated in Article 13(6)
is to be found in existing law. The Criminal Procedure (Special
Provisions) Law, No. 15 of 1978, which was certified on 23 May 1978,
four months before the Constitution came into operation, .requires
every court which convicts a person of a scheduled offence to:
notwithstanding its ordinary powers of punishment,
impose on such person, in addition to any other
punishment which it may lawfully impose for the
offence, a sentence of imprisonment for a period
of not less than one-third of the maximum period
of imprisonment for which he may be sentenced for
such of fence. 2
3
This additional punishment, which cannot be reduced even in appeal,
is clearly contrary to Article 13(6). In fact, on a number of
occasions, it has been held by the United States Supreme Court that
a law which imposes an additional punishment to that prescribed when
a criminal act was committed is an ex post facto law prohibited by
4
the Constitution.
This right may be restricted by law only in the interests of
national security. In international law, the protection against
the retroactivity of the criminal law is absolute and admits of no
restrictions, whatever the circumstances.^
Freedom from Arbitrary Punishment
Article 13(4) states that:
No person shall be punished with death or imprisonment except by order of a competent court, made in
accordance with procedure established by law. The
arrest, holding in custody, detention or other deprivation of personal liberty of a person pending
investigation or trial, shall not constitute punishment.
This Article does not deal with all forms of punishment but only
with death and imprisonment. Existing law under which the forfeiture
Lindsay v . Washington, 301 US 397. See also Warden, Lewisburg Penitentiary v. Marrero, 417 US 653.
S. 4(a).
S. 4(b).
Calder v. Bull, 3 US 386; Re Medley, 134 US 160. See also
Kedar Nath Bajoria v. State of West Bengal (1954) SCR 30.
But see Art.15(8) for additional restrictions in respect of
security personnel.
ICCPR, Art.15; ECHR, Art.7; ACHR, Art.9.
164
of property may be imposed by a Minister of the Government,^ and
2
civic disabilities may be imposed by Parliament, do not therefore
appear to be in conflict with it. However, the Proscribing of
Liberation Tigers of Tamil Eelam and Other Similar Organisations
Law, No. 16 of 1978, which was certified barely four months before
the Constitution came into operation, empowers a Minister of the
Government to make order detaining any person for a period of one
year. The Minister’s order may not be called in question in any
court. Since a person so detained in not held “pending investigation or trial”, this provision of existing law is clearly an
3
exception to the rule enunciated in this Article. The other
exception was also effected a few months before this Article came
into operation. By an amendment to the Parliamentary (Powers and
Privileges) Act, the National State Assembly gave itself concurrent
jurisdiction with the Supreme Court to try any offence under that
Act, and to impose, inter alia, punishment of imprisonment for a
term extending to two years. Such punishment is enforced and
carried out as if it were a punishment imposed by the Supreme Court.
Freedom from Torture
Article 11 states that:
No person shall be subjected to torture or to cruel
inhuman or degrading treatment or punishment.
The prohibition contained in this Article appears to extend to
seven distinct modes of conduct:
a) torture ^
b) cruel treatment
c) cruel punishment
d) inhuman treatment
e) inhuman punishment
f) degrading treatment
g) degrading punishment.
Proscribing of Liberation Tigers of Tamil Eelam and Other
Similar Organisations Law, s.7.
Special Presidential Commissions of Inquiry Law, s.7. see
also 1978 Constitution, Art.81.
Ss.ll, 13.
Law No.5 of 1978, ss.2, 5.
For definition of “torture”, see Declaration on the Protection of All Persons from being subjected to Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment, adopted
unanimously on 9 December 1975 (Res.3452(XXX))
165
Under existing law, the following are among the punishments that
may be inflicted:
a) death”” 2 b) whipping 3 c) corporal punishment 4 d) forfeiture of property e) deprivation of civic rights.”
If the permissible aims of punishment are considered to be
deterrence, isolation and rehabilitation, the death penalty may g
conflict with this Article. In Furman v. Georgia it was once held
by the United States Supreme Court that the imposition of the death
penalty was not necessary as a means of stopping convicted individuals from committing further crimes; that there was no reason to
believe that the death penalty was necessary either to deter the
commission of capital crimes or to protect society; that it could
not be concluded that death served the purpose of retribution more
effectively than imprisonment; and that it was likely that the
death penalty could not be shown to be serving any penal purpose
which could not be served equally well by some less severe punishment. The fact that the imposition of the death penalty is mandatory for certain offences only aggravates its objectional quality.^ g
In Tyrer v. United Kingdom, the European Commission has
already held that birching as a punishment, ordered by a court and
administered as provided for in the Isle of Man, is an assault on
human dignity which humiliates and disgraces the offender without
any redeeming social value. Federal German courts have held that
the deprivation of civic rights as a punitive measure constitutes
Penal Code, s.52; Criminal Procedure Code, s.308.
Penal Code, s.52; Criminal Procedure Code, ss.13-15, 308,
315-319; Corporal Punishment Ord., ss.2-7; Knives Ord.,s.11.
Children and Young Persons Ord., s.29.
Penal Code, s.52; Proscribing of Liberation Tigers of
Tamil Eelam and Other Similar Organisations Law, s.7.
Special Presidential Commissions of Inquiry Law, s.7;
Local Authorities (Imposition of Civic Disabilities, No.l) Law;
Local Authorities (Imposition of Civic Disabilities, No.2) Law.
408 US 238.
Ibid.
5856/72, 2 EHRR 1.
166
degrading treatment.’*’ Referring to the similar penalty of denationalisation, the United States Supreme Court provided the
rationale:
There may be involved no physical mistreatment, no
primitive torture. There is instead the total distruction of the individual’s status in organised
society. It is a form of punishment more primitive
than torture, for it destroys for the individual
the political existence that was centuries in the
development. The punishment strips the citizen of
his status in the national and international political community.2
3
The European Commission held, in Patel et al v. United Kingdom,
that the general purpose of the prohibition of degrading treatment
was to prevent interferences with the dignity of man of a particularly serious nature. Accordingly, any act which lowers a person
in rank, position, reputation or character, can be regarded as
“degrading treatment” if it reaches a certain level of severity.
Viewed in this light, the forfeiture of all property of a person,
with its attendant consequences on his family as well, would appear
to infringe Article 11.
The Prisons Ordinance permits the use of “side cuffs with
body-belts”, handcuffs and other mechanical restraints for periods
in excess of 24 hours, and the securing of groups of prisoners by
4
“gang chain and wrist cuffs”. In Denmark, Norway,Sweden and
Netherlands v. Greece,^ the European Commission stated that the
notion of inhuman treatment covers at least such treatment as
deliberately causes severe suffering, mental or physical. It has
also held that securing a prisoner by fastening one hand and one
foot in the same handcuffs while he was being transported from one
6
place to another could constitute inhuman treatment. The Austrian
Constitutional Court has held that the unnecessary application of
physical force in escorting an arrested man to the police station
constitutes degrading treatment.^ Accordingly, the use of mechanical restraints provided for in the Prisons Ordinance could conflict
with Article 11.
Decision of 14 July 1971 of the Federal Supreme Court,
NJW 1971, 20.
Trop v. Dulles, 356 US 86, at p.101.
4403-19/70, Report: 3 EHRR 76.
Ss. 89-91.
3321-23/67, 3344/67, YB 12.
Wiechert v. Federal Republic of Germany (1404/62), YB 7,104.
Decision of 6 October 1977, JB 1978, 312.
167
Freedom of Thought, Conscience and Religion
Article 10 states that:
Every person is entitled to freedom of thought,
conscience and religion, including the freedom
to have or to adopt a religion or belief of his
choice.
Article 14(1)(e) guarantees to every citizen:
the freedom, either by himself or in association
with others, and either in public or in private,
to manifest his religion or belief in worship,
observance, practice and teaching.
Existing law derogates from the freedoms recognised by these
two Articles to the extent that a pupil in a government school is
required to be provided religious instruction in the religion of
the parent of such pupil.’*’ Such pupil is also prohibited from
attending any place of worship or participating in any worship or
observance connected with a religion which is not that of his
2
parents.
The exercise and operation of the right protected by Article
14(1)(e) may be restricted by law “in the interests of national
security, public order, and the protection of public health or
morality, or for the purpose of securing due recognition and respect
for the rights and freedoms of others, or of meeting the just
3
requirements of the general welfare of a democratic society”.
Article 10, however, remains non-derogable under any circumstances.
But although these two Articles contain two concepts – freedom to
4
believe and freedom to act, the former concept is of very little
practical value without the latter. Indeed, it has been suggested
that freedom of thought or of conscience per se cannot be invaded
since, short of “science fiction” incursions into the domain of
private introspection, interference with this freedom is impossible.^
Freedom of thought, conscience and religion is restricted, therefore,
to the extent that the freedom to manifest such thought, conscience
or religion is restricted.
Education Ord., s.35(l).
Ibid., s.35(2).
Art.15(7). Art.15(8) permits additional restrictions in
respect of security personnel.
For a fuller discussion of these two concepts, see Cantwell
v. Connecticut, 84 US 310; In re Places and Objects of Worship Bill,
(1973) DCC, Vol.l, p.27. For a definition of the concepts, see
Declaration on the Elimination of all Forms of Intolerance and of
Discrimination Based on Religion or Belief, 1981.
Morris B.Abram, “Freedom of Thought, Conscience and Religion”,
Journal of the ICJ, Vol.VIII, p.43.
168
Freedom of Speech
Article 14(1)(a) states that every citizen is entitled to
“the freedom of speech and expression, including publication”.
The right to freedom of publication means the freedom of
the press.’‘ As early as 1784, Lord Mansfield defined the freedom of the press as “printing without previous licence, subject to the 2 consequences of the law”. In Sakai Papers (P) Ltd v. Union of 3 India, the Indian Supreme Court held that for propagating his ideas, a citizen had the right to publish them, to disseminate them, and to circulate them, either by word of mouth or by writing. Existing law limits this right in many ways. The publication of 4 certain matter is prohibited: news relating to horse racing; the contents of a Cabinet document;’ a Cabinet decision unless
6 7 officially released; proceedings of a meeting of the Cabinet;
a proposal alleged to be under consideration by a Ministry, unless
8 9 it is true; an official secret; matter relating to police or
service establishments, equipment or installations which is likely
to be prejudicial to the defence and security of the country;^
any statement relating to any monetary, financial or economic
measures alleged to be under consideration by the Government if its
publication is likely to lead to the creation of shortages or
windfall profits or otherwise adversely affect the economy;’”‘ or
any activity of a proscribed organisation, including any investi12 gation into such activity. Publication is also regulated in a
For an early exposition of this freedom, see Blackstone, 4,
Commentaries, 145 (1876).
The King v. Dean of the State Asaph (1784) 3 TR 428.
(1962) 3 SCR 842.
4 . Control of Publications on Horse Racing Act, s .15(1 )(c ).
Sri Lanka Press Council Law, s.16(2)(a).
Ibid., s.16(2)(b).
Ibid., s.16(1).
Ibid., 16(5).
Ibid., s.16(3).
Ibid.
Ibid., s.16(4).
Proscribing of Liberation Tigers of Tamil Eelam and Other
Similar Organisations Law, s.5(1)(a).
169
variety of ways. For instance, the Press Council may recover a
registration fee from the proprietors of newspaper s,”– and obtain 2 information from editors and journalists; it may also censure 3 an editor or direct the publication of an apology or correction. A newspaper may be published only after a declaration containing particulars of such newspaper has been delivered to the Registrar of Newspapers, to whom one copy of every edition of that newspaper signed by the printer and publisher is also required to be delivered. It is an offence to distribute any newspaper, whether printed in Sri Lanka or abroad, which contains any matter relating to the activities of a proscribed organisation.” 75 per cent of the shares
of the principal national newspaper company are held by the Public
Tims tee on behalf of the government, and by virtue of this shareholding, the Public Trustee nominates a majority of the directors
of that company.^
The right to freedom of speech and expression may be exercised through different means. Motion pictures are within the
ambit of this protection. As the United States Supreme Court has
observed:
The beneficiaries of freedom of expression include
the actor on the stage or screen, the artist whose
creation is in oil or clay or marble, the poet whose
reading public may be practically non-existent,the
musician and his musical scores, and the counsellor,
whether a priest, parent or teacher, no matter how
small his audience.7
Existing law permits a stage entertainment or other public performance to be exhibited only in a building previously licensed for
g
that purpose. A film, stage entertainment or other public
performance also requires to be previously certified by the
appropriate authority as suitable for public exhibition.^
Sri Lanka Press Council Law, ss. 19, 25.
Ibid., s.10.
Ibid., s.9.
Ibid., s.26; Newspapers Ord., s.7.
Proscribing of Liberation Tigers of Tamil Eelam and Other
Similar Organisations Law, s.5(l)(b).
Associated Newspapers of Ceylon Ltd (Special Provisions)
Law, ss.2, 6.
Paul Poe v. Abraham Ullman, 367 US 497.
Public Performances Ord., s.3.
Ibid., s.6.
170
Speech is not stripped of its protection merely because it
appears in the form of a paid commercial advertisement.^ Existing
law prohibits any advertisement which is calculated to injure
2
public morality.
A demonstration is a visible manifestation of the feelings
or sentiments of a group and is, therefore, a form of speech or
3
expression. So is the activity of peaceful pamphleteering and
4
picketing. An assembly or procession may, however, be conducted
in any public place only with a prior licence from, or in accordance with directions issued by, a police officer.^ Four copies
of every pamphlet (or book) printed are required to be delivered
to the Registrar of Books.
Streets are natural and proper places for the dissemination
of information and opinions. One who is rightfully on a street
which is open to the public carries with him there as elsewhere
the constitutional right to express his views in an orderly
fashion, and this right extends to the comnunication of ideas by
handbills and literature as well as by the spoken word.^ However,
music may be played on a street only with a prior licence from
Q
a police officer. The use in a public place of an instrument
which produces, reproduces or amplifies sound also requires a
9
prior permit from the police.
In Handy side v. United Kingdom, ^ the European Court held
that ECHR, Article 10 was applicable “not only to information
or ideas that are favourably received or regarded as inoffensive
or as a matter of indifference, but also to those that offend,
shock or disturb the State or any sector of the population”.
In Termiliello v. City of Chicago,^ Douglas J thought that a
Bigelow v. Virginia, 421 US 809; cf. Hamdard Dawakhana v.
Union of India (1960) 2 SCR 671.
Sri Lanka Press Council Law, s .15(1)( c).
Kameshwar Prasad v. State of Bihar (1962) Supp. 3 SCR 369;
Decision of 7 November1967, Hoge Raad, Netherlands, NJ 1968 199.
Police Department v. Mosley, 408 US 92.
Police Ord., s.78.
Printers and Publishers Ord., s.2.
Flower v. United States, 407 US 197; Talley v. California,
362 US 60; Jamison v. State of Texas, 318 US 413.
Police Ord., s.TIT
Ibid., ss.80, 96.
5493/72, Judgrnent: 1 EHRR 737.
337 US 1.
171
function of free speech under a democratic system of government
is to invite dispute. He elaborated:
It may indeed best serve its high purpose when it
induces a condition of unrest, create dissatisfaction
with conditions as they are, or even stirs people
to anger. Speech is often provocative and challenging.
It may strike at prejudices and preconceptions and
have profound unsettling effects as it presses for
acceptance of an idea.
In Roth v. United States,^- Brennan J was of the view that free
speech encompassed “all ideas having even the slightest social
importance – unorthodox ideas, controversial ideas, even ideas
hateful to the prevailing climate of opinion” This protection
has since been extended to “information and ideas regardless of
2 3 their social worth”; to “opinions that are loathed”; and to
criticism of public men and measures made “foolishly and without
4
moderation”. Even the advocacy of the use of force or of law
violation as a means of securing a change of government, as
distinguished from a conspiracy to advocate the overthrow of the
government, is within the protection accorded to speech and
expression.^ Existing law, however, prohibits several forms of
such expression on pain of severe punishment: that which brings
g
the President into contempt; that which excites or attempts to
excite feelings of disaffection to the President or the Government;^ that which excites or attempts to excite hatred to, or
g
contempt of, the administration of justice; that which excites
or attempts to excite the citizens to procure, otherwise than
9
by lawful means, the alteration of any matter by law established;
that which attempts to raise discontent or disaffection among the
354 US 476.
Stanley v. Georgia, 394 US 557.
Patriot Co. v. Roy, 401 US 265.
Cohen v. California, 403 US 15.
Brandenburg v. Ohio, 395 US 444; Eugene Dennis v. United
States, 341 US 494.
Penal Code, s.118.
Ibid., s.120.
Ibid.
Ibid.
172
among the citizens;^ that which attempts to promote feelings of
2
ill-will and hostility between different classes of citizens;
3 4 any obscene or indecent matter; any profane matter; subject to
certain exceptions, any imputation concerning any person with the
intention of harming the reputation of such person;”* an insult
g
which is likely to provoke a person to break the public peace;
and any statement concerning the conduct of a Member of Parliament
which is defamatory in nature.^
The exercise and operation of this right may be restricted
by law in the interests of racial and religious harmony, national
security, public order or the protection of public health or
morality; for the purpose of securing due recognition and respect
for the rights and freedoms of others, or of meeting the just
requirements of the general welfare of a democratic society; or
in relation to parliamentary privilege, contempt of court, defamation or the incitement to an offence. These grounds broadly fall
within the grounds upon which, under the international instruments,
g
the exercise of this right may be restricted.
Freedom of Peaceful Assembly
Article 14(1)(b) states that every citizen is entitled to the
freedom of peaceful assembly.
The Police Ordinance contains provisions which authorise the
police to regulate or prohibit the holding of processions in public
places and the use of instruments which are capable of producing,
9
reproducing or amplifying sound in public places. Such procedures
are generally necessary in order that the authorities may be in a
position to ensure the peaceful nature of a meeting. Accordingly,
existing law which prohibits an “unlawful assembly” is perhaps not
Ibid.
Ibid.
Ibid., ss.285-287; Obscene Publications Ord., s.2; Sri
Lanka Press Council Law, s.l5(l)(d).
Profane Publications Act, s.2; Sri Lanka Press Council
Law, s.15(1)(a).
Penal Code, s.479; Sri Lanka Press council Law, s.l5(l)(b).
Penal Code, s.484.
Parliament (Powers and Privileges) Act, s.22.
ICCPR, Art.19(3); ECHR, Art.10(2); ECHR, Art.13.
Ss.78, 80, 96.
173
inconsistent with this Article. Questionable, however, is a law
which enables an assembly of five or more persons “likely to cause
a disturbance of the public peace” to be dispersed by the use of
force.^ Guidance on the exercise of such power has been provided
by the European Commission which has observed that the possibility
of violent counter-demonstrations, or the possibility of extremists with violent intentions, not members of the organising
association, joining the demonstration cannot as such take away
this right. Even if there is a real risk of a public procession
resulting in disorder by developments outside the control of those
organising it, such procession does not for this reason alone fall
2
outside the scope of the protected right.
The exercise and operation of this right may be restricted
by law in the interests of racial and religious harmony, national
security, public order, or the protection of public health or
morality; for the purpose of securing due recognition and respect
for the rights and freedoms of others, or of meeting the just
3
requirements of the general welfare of a democratic society.
These grounds broadly correspond to those in international instru4
ments.
Freedom of Association
Article 14(1)(c) states that every citizen is entitled to
the freedom of association. The term “association” presupposes
a voluntary grouping for a common goal.^ ACHR, Article 16(1)
specifies the purposes of association: ideological, religious,
political, economic, labour, social, cultural, sports, and “other”.
Under existing law, the Tamil separatist organisation styled
as the “Liberation Tigers of Tamil Eelam” is proscribed. Additionally, the President has the power to proscribe any other
movement, society, party, association or body or group of persons
Administration of Justice Law, s.58.
Christians Against Racism and Fascism v . United Kingdom,
8440/78, DR 21, 138; cf. Beatty v. Gillbanks (1882) 9 QB 308;
O’Kelly v. Harvey (1883) 14 LR.Ir. 105; Duncan v. Jones /T9367
1 KB 218; Feiner v. New York, 340 US 315.
Arts.15(3), 15(7). See also Art.15(8) which permits
additional restrictions in respect of security personnel.
ICCFR, Art.21; ECHR, Art.11(2); ACHR, Art.15.
Le Compte, Van Leeuven and De Meyere v. Belgium (6878/75,
7238/75), Judgment: 23 June 1981.
Proscribing of Liberation Tigers of Tamil Eelam and Other
Similar Organisations Law, s.2(1). For consequences of proscription, see ss. 4, 5, 7, 8, 9, 11.
174
if he is of opinion that such organisation “advocates the use of
violence and is either directly or indirectly concerned in or
engaged in any unlawful activity.^
The exercise and operation of this right may be restricted
by law in the interests of racial and religious harmony, national
economy, national security, public order, or the protection of
public health or morality; or for the purpose of securing due
recognition and respect for the rights and freedoms of others, or
of meeting the just requirements of the general welfare of a
2
democratic society. These grounds broadly correspond to those
3
recognised under international law.
Freedom to Form and Join a Trade Union
Article 14(1)(d) states that every citizen is entitled to
the freedom to form and join a trade union. Under existing law,
4
every trade union is required to be registered. This requirement
of compulsory registration is not, by itself, incompatible with
this Article.
The exercise and operation of this right may be restricted
by law in the interests of national security, public order, or the
protection of public health or morality; or for the purpose of
securing due recognition and respect for the rights and freedoms
of others, or of meeting the just requirements of the general
welfare of a democratic society.^ These grounds broadly correspond
to those recognised under international law.
Freedom to Enjoy Own Culture and Use Own Language
Article 14(1)(f) states that every citizen is entitled to:
the freedom by himself or in association with others
to enjoy and promote his own culture and to use his
own language.
In ICCFR, Article 27, this right is accorded to persons belonging
to minority groups in those States in which ethnic, religious or
linguistic minorities exist. Article 14(l)(f), however, draws no
such distinction. But in regard to language, the Constitution
has already regulated the use of the Tamil language, giving it a
Ibid., s.2(2).
Arts. 15(4), 15(7). But see Art.15(8) for further restrictions which may be imposed in respect of security personnel.
ICCPR, Art.22(2); ECHR, Art.11(2); ACHR, Art.16(2).
Trade Unions Ord., s.8.
Art. 15(7). See Art.15(8) for further restrictions which
may be imposed in respect of security personnal.
ICCFR, Art.22(2); ICESCR, Art.8; ECHR, Art.11(2).
175
status inferior to that of the Sinhala language. The Constitution
also ignores English, which is not only the language of the dwindling Burgher comnunity, but is also the country’s lingua franca.^-
The exercise and operation of this right may be restricted
by law in the interests of national security, public order, or
the protection of public health or morality; or for the purpose
of securing due recognition and respect for the rights and freedcms
of others, or of meeting the just requirements of the general
2
welfare of a democratic society. The limitation clause appears
to be unnecessarily wide. The protected cultures and languages
are those of Sri Lanka’s citizens and form part of Sri Lanka’s
cultural heritage. After centuries of cultural co-existence, the
intervention of the law appears hardly necessary at this stage to
ensure continued co-existence. Moreover, it is incomprehensible
how the use of a national language could possibly offend against
“public health” or “public morality”, or threaten or imperil
“national security” or “public order”, which are all grounds that
comprise the limitation clause.
Freedom to Engage in Any Occupation
Article 14(1)(g) states that every citizen is entitled to:
the freedom to engage by himself or in association
with others in any lawful occupation, profession,
trade, business or enterprise.
A corporate body is not a “citizen”, and is therefore not entitled
3
to invoke this right. But a citizen who, in association with
others, forms a company for the purpose of engaging in a business,
4
does not thereby become disentitled to invoke it.
Existing law already regulates the exercise of this right.
For instance, an importer of goods is subject to orders made by
the Minister prohibiting the importation of certain types of goods
into the country.^ Certain occupations may not be engaged in
without a licence from the competent authority: e.g. as a trader,
1978 Constitution, Ch.IV.
Art.15(7). For further restrictions in respect of security
personnel, see Art.15(8).
State Trading Corporation of India v. Comnercial Tax Officer,
AIR 1963 SC 1811.
In re Associated Newspapers of Ceylon Ltd (Special Provisions)
Bill (1973) DCC, Vol.l, p.35, at 49; In re Church of Sri Lanka
(Consequential Provisions) Bill (1975) DCC, Vol.3, p.5, at 14.
Imports and Exports (Control) Act.
Licensing of Traders Act, s.2.
176
1 2
a manufacturer of weapons, or as a private broadcaster. Certain
areas of activity are totally prohibited even to citizens: e.g. the
3
provision of an omnibus service; the transaction of the business
of life or other insurance;^ the establishment of a school for the
education of persons between the ages of five and fourteen years;”*
and the import, export, sale, supply and distribution of petrol, g
kerosene and diesel oil. On the other hand, a person graduating
from a university in Sri Lanka may be required by the State to
provide compulsory public service in his field of specialisation for
a period of up to five years.^
The exercise and operation of this right may be further
restricted by law in the interests of national economy, national
security, public order, or the protection of public health or morality; or for the purpose of securing due recognition and respect
for the rights and freedoms of others, or of meeting the just
requirements of the general welfare of a democratic society. Restrictions may also be imposed in relation to the professional, technical, academic, financial and other qualifications necessary for
practising any profession or carrying on any occupation, trade,
business or enterprise, and the licensing and disciplinary control
of the person entitled to such right, as well as in relation to
the carrying on by the State, a State agency or a public corporation
of any trade, business, industry, service or enterprise, whether to
g
the exclusion, complete or partial, of citizens or otherwise.
Freedom of Movement
Articles 14(1)(h) and 14(1)(i) state, respectively, that
every citizen is entitled to the freedom of movement and of choosing
his residence within Sri Lanka, and the freedom to return to Sri
Lanka.
Offensive Weapons Act, s.2.
Ceylon Broadcasting Corporation Act, s.44.
Motor Transport Act, s.12.
Insurance Corporation Act, s.10.
Assisted Schools and Training Colleges (Supplementary
Provisions) Act, s.25.
Ceylon Petroleum Corporation (Amendment) Act, s.4.
Compulsory Public Services Act, s.4.
Arts. 15(5), 15(7). For further restrictions which may
be imposed in respect of security personnel, see Art.15(8).
177
Existing law regulates the exercise of the former right by
requiring the licensing of boats, motor vehicles, aircraft and
other vehicles before they can be used as a means of transportat1 2
ion. Tolls may also be levied on modes of transport. The Petrol
(Control of Supplies) Ordinance, when invoked, is capable of being
used to restrict movement within Sri Lanka through the control of
3
the supply and the conservation of the stocks of petrol. Under
the Pilgrimages Ordinance, the Minister may restrict the number of
persons who may proceed on any pilgrimage from any part of the
country and the period of their stay at the place to which such
pilgrimage is made.^
Under international law, the latter right may be exercised
by a citizen whether or not he has a passport or other travel
document, and no sanction, penalty, punishment or reprisal may
attach to any person for exercising or attempting to exercise it.^
Existing law, however, provides that a citizen may not leave Sri
g
Lanka unless he has in his possession a valid passport. That
passport may be cancelled or suspended by the competent authority
at any time “in his absolute discretion”, and the exercise of that
discretion may not be called in question in any court.^ The
competent authority may at any time and in his discretion, restrict
the validity of such passport as regards its duration or as regards
the countries of travel, or require the holder, if employed abroad,
to remit in foreign exchange such amounts at such intervals as may
g
be determined by him. The question does arise whether a citizen
who has forfeited his passport while being abroad will be permitted
to enter the country without any valid travel documents.
Boats Ord., s.2; Motor Traffic Act, s.2; Air Navigation
Act, s.15; Vehicles Ord., s.3.
Tolls Ord., s.2.
Ss. 4-7, 10.
S.2.
Principles on freedom and non-discrimination in respect of
the right of everyone to return to his country, formulated by the
UN Economic and Social Council, Resolution No. 1788 (LIV), 18 May
This Resolution is reproduced in ICJ Review (Dec. 1973),
pp. 61-64.
Immigrants and Emigrants Act, s.35.
Passport (Regulation) and Exit Permit Act, ss. 3, 17. See
also Immigrants and Emigrants Act, s.36.
Ibid., ss. 12, 14.
178
The exercise and operation of these rights may be restricted
by law in the interests of national security, public order, or the
protection of public health or morality; or for the purpose of
securing due recognition and respect for the rights and freedoms
of others, or of meeting the just requirements of the general
welfare of a democratic society.’*’ The exercise and operation of
the former right may also be restricted in the interests of
2
national economy. Under international law, the freedom of a
citizen to enter his own country is absolute and not subject to
any restriction, except that ICCPR, Article 12(4), requires that
3
a citizen should not be ’’arbitrarily” deprived of that freedcm.
By authorising the legislature to restrict the right of a Sri
Lankan citizen to return to his country, the Constitution envisages
a most impracticable situation. If this strange and inexplicable
limitation clause is actually implemented, a new class of people
who, though not stateless, are condemned to spend part of their
lives either in the atmosphere or on international waterways,
would have been created.
Right to Equality
Article 12(1) states that all persons are equal before the
law and are entitled to the equal protection of the law. Article
12(2) states that no citizen shall be discriminated against on the
grounds of race, religion, language, caste, sex, political opinion
or place of birth. Article 12(3), contemplating primarily a
problem peculiar to the northern province, states that no person
shall, on the grounds of race, religion, caste or sex, be subject
to disability, liability, restriction or condition with regard to
access to shops, public restaurants, hotels, places of public
4
entertainment or places of public worship of his own religion.
Three related concepts are enshrined in these paragraphs: equality
before the law, equal protection of the law, and non-discrimination.
The exercise and operation of these rights may be restricted
by law in the interests of national security, public order, or
the protection of public health or morality; or for the purpose of
Art. 15(7).
Art. 15(6). For further restrictions on both rights in
respect of security personnel, see Art. 15(8).
ECHR P4, Art.3(2); ACHR, Art.22(5). See also UDHR, Art.13(2).
See Prevention of Social Disabilities Act.
179
securing due recognition and respect for the rights and freedoms
of others, or of meeting the just requirements of the general
welfare of a democratic society.^
Additionally, the Constitution itself contains the following
exceptions to the concept of equality:
a) a person may be required to acquire within a reasonable time
sufficient knowledge of any language as a qualification for
any employment or office in the public, judicial or local
government service or in the service of any public corporation,
where such knowledge is reasonably necessary for the discharge
2
of the duties of such employment or office;
b) a person may be required to have a sufficient knowledge of
any language as a qualification for any such employment or
office where no function of that employment or office can be
discharged otherwise than with a knowledge of that language;
c) special provision may be made by law, subordinate legislation
or executive action, for the advancement of women, children
or disabled persons.
None of the international instruments admits of any exception
to, or restriction of, the concept of equality. Nor do they
3
authorise discrimination under any circumstances.
Art. 15(7). For further restrictions which may be imposed
in respect of security personnel, see Art. 15(8).
Having regard to the fact that Sinhala is the one official
language of the country, this and the following exception will be
sufficient authority for requiring non-Sinhala-speaking persons
to acquire a knowledge of the Sinhala language within a prescribed
time on pain of exclusion from the relevant public service.
ICCFR, Art.26; ECHR, Art.14; ACHR, Art.24. The concept
of equality does not, however, prevent classification which rests
upon reasonable grounds of distinction. See Opinion of Judge Tanaka
in the South-West Africa Case, Reports of Judgments, Advisory
Opinions and Orders of the International Court of Justice, 1966,
at pp. 284-316. But cf. warning of Subha Rao J in Lachhman Das v.
State of Punjab, AIR 1963 SC 222, that overemphasis on the doctrine
of classification may “end in substituting the doctrine of classification for the doctrine of of equality”.
180
THE RESTRICTIONS
The exercise and operation of the fundamental rights
declared and recognised in the 1978 Constitution are “subject
to such restrictions as may be prescribed by law”. The restrictions may be prescribed “in the interests of”, “in relation to”,
or “for the purpose of”, a number of designated objectives. Law,
in most instances, includes emergency regulations made by the
President under the Public Security Ordinance.
Restrictions
Article 4(d) states that the fundamental rights declared
and recognised by the Constitution shall be respected, secured
and advanced by all the organs of government and shall not be
abridged, restricted or denied, save in the manner and to the
extent provided in the Constitution. To abridge, to restrict,
and to deny are three distinct concepts. “Abridged” means to
limit the scope of a right, to reduce its content. If the word
“teaching” is deleted from Article 14(1)(e) which declares the
freedom to manifest one’s religion or belief, or the expression
“and of choosing his residence within Sri Lanka” is deleted from
Article 14(1) (h) which protects the freedom of movement, those
two rights would have been abridged. “Denied” means to refuse,
disallow or withhold from. A right may be denied by repealing it
and thereby denying recognition to it under the Constitution, or
by suspending its exercise or operation. If in Article 11,
“citizen” was substituted for “person”, the protection against
torture would then have been denied to non-citizens. Between
these two concepts of abridgement and denial is that of restriction. To “restrict” is to check, curb, impede, hamper, obstruct,
keep within limits, regulate or control. The right to practise
a profession may be restricted by requiring prior qualification;
the right to carry on a trade, by requiring a prior licence; the
right to travel, by requiring the possession of a travel document.
What Article 15 authorises the legislature to do is not to abridge
or to deny, but to restrict the exercise and operation of the
fundamental rights.
181
Prescribed by Law
A restriction is required to be prescribed by law. This
expression appears in ECHR, Articles 9(2), 10(2) and 11(2), the
equivalent in the French text being, in each case, prevues par la
loi. In Times Newspapers Ltd v. United Kingdom,^ the European
Court held that at least two requirements flow from this expression
Firstly, the law must be adequately accessible: the citizen must
be able to have an indication of the legal rules applicable to a
given case that is adequate in the circumstances. Secondly, a
norm cannot be regarded as a “law” unless it is formulated with
sufficient precision to enable the citizen to regulate his conduct:
he must be able – if need be with appropriate advice – to foresee,
to a degree that is reasonable in the circumstances, the consequences which a given action may entail.
There appears to be a third requirement that flows from this
expression, namely, that the restriction must be prescribed by
“law”. A law must set out precisely the manner and extent to
which a right is being restricted. If the law, without prescribing
the restriction, authorises a person or body to do so, the restriction would not have been “prescribed by law”. For instance, if a
law provided that a competent authority may prohibit, in the
interests of the protection of public morality, the publication
of such matter which he considers expedient to so prohibit, the
exercise and operation of the freedom of speech and expression
would not have been made subject to a restriction prescribed by law
because the law would not have, with sufficient precision, formulated the manner and extent to which that right is restricted.
A competent authority may make an order, but he cannot make a law;
“law” as defined in the Constitution means an Act of a legislative
body.
National Security
National security means the security of the nation. The
security of the nation is generally threatened by war or rebellion;
by external or internal aggression directed at the principal organs
of the State. A restriction imposed in the interests of national
6538/74, Judgment: 2 EHRR 245.
182
security must bear some proximate relationship to, or be directed
at, the prevention of either of these conditions, or must seek to
facilitate governmental efforts to deal effectively with such
conditions. In Romesh Thappar v. State of Madras,^ the Supreme
Court of India considered that the expression “security of the State1
referred to “serious and aggravated forms of public disorder” and
did not comprise ordinary breaches of “public safety” or “public
order” which do not involve any danger to the State itself.
Public Order
The contravention of law may often affect order, but before
it can be said to affect “public order” it must affect the community
or the public at large. The playing of loud music at night may
disturb public tranquility without affecting public order. Similarly, when two drunkards quarrel and fight, there is disorder, but
2
not public disorder. The Indian Supreme Court has explained this
distinction very succinctly:
One has to imagine three concentric circles, the
largest representing “law and order”, the next
representing “public order”, and the smallest
representing “security of the State”. An act may
affect “law and order” but not “public order”,
just as an act may affect “public order” but not
“security of the State”. 3
Therefore, a restriction justified as being in the interests of
public order must bear a reasonable and proximate nexus to the
prevention of disorder of a grave nature, and not merely acts which
disturb the public tranquility or are breaches of the peace.
Public Health or Morality
Since the word “public” qualifies both health and morality,
the restriction appears to be directed at the protection of the
health and morality of the community.^ In Dudgeon v. United
Kingdom,^ the European Commission interpreted the expression
“protection of morals” in ECHR, Article 8(2), to refer primarily
to the protection of the moral ethos of society, thus preserving
(1950) SCR 594.
Lohia v. State of Bihar, AIR 1966 SC 740.
Ibid., at para. 52.
In X v. Netherlands (1068/61), YB 5, 278, the European Conmission held that compulsory membership of the Health Service may be
required by the Government in the interests of the protection of
health.
7525/76, Report: 3 EHRR 40.
183
to the individual an area of strictly private morality in which
the State may not interfere. The European Court, while agreeing
that this expression implied safeguarding the moral standards of
society as a whole, thought that it also covered protection of
the moral interests and welfare of particular sections of society,
e.g. schoolchildren.’*’ In that case, it was held that a law which
prohibited homosexual acts committed in private between consenting
adult males was in breach of the applicant’s right to respect for
private life and could not be justified on the ground of the
“protection of morals”.
Does a majority have an unqualified right to impose its
standards of morality on the whole of society ? In Dudgeon, the
European Commission observed that “even if the majority of people
in Northern Ireland disapproves of homosexual conduct on moral
grounds, this does not mean that it is necessary to prohibit it
in order to protect morals in a democratic society”. Account
must be taken of the effect which allowing the conduct in question
2
is likely to have on the moral standards of society as a whole.
Rights and Freedoms of Others
It is not made clear whether the “rights and freedoms” of
others, for the recognition and respect for which the exercise
and operation of a fundamental right may be restricted by law.
are those which are specifically declared and recognised in the
Constitution, or whether that expression is intended to include
a variety of vague, undefined interests. As pointed out by
Connelly:
The term ‘the rights of others’ is inherently vague.
Indeed, it is arguably so open-ended that a liberal
interpretation could sweep away much of the protection
ostensibly afforded the human rights which are the
subject of the Convention. Put differently, the
rights singled out for protection in the Convention
could be subordinated to other rights not specified
but ‘read or written into’ the Convention by the
Commission and the Court. Surely it is not desirable
that rights ‘be picked out of a hat’ according to
the personal inclinations and preferences of the
members of these bodies albeit with the laudable
motive of securing justice in a particular case. 3
Ibid., Judgment: 22 October 1981.
Supra.
A.M.Connelly, “The Protection of the Rights of Others”, 5
Human Rights Review, 117 at 133.
184
This expression has been borrowed from UDHR. In that
instrument, what is stated is that:
Everyone has duties to the community in which alone
the free and full development of his personality is
possible. In the exercise of his rights and freedoms,
everyone shall be subject only to such limitations
as are determined by law solely for the purpose of
securing due recognition and respect for the rights
and freedoms of others and of meeting the just requirements of morality, public order and the general
welfare in a democratic society.1
Having regard to the context in which it first appeared in UDHR,
it seems reasonable to infer that what was contemplated was that
individual rights and freedoms should, when necessary, be subordinated to the general interests of the community. For instance,
the right of a jazz enthusiast to enjoy his particular brand of
music must necessarily be subordinated to the right of the community to be spared loud raucous sounds at a time when most people
sleep. Hence, a law which insists on a silent night. A Sri
Lankan Buddhist family having the traditional overnight pirith
ceremony in which drumming plays a significant role, will be
required by law to obtain a permit from the local police station,
which permit is usually issued with the consent of the immediate
neighbours. Therefore, the “rights and freedoms” contemplated
appear to be not those individual rights and freedoms which are
already declared and recognised in the Constitution; nor are they
some nebulous, unspecific, yet-to-be defined individual interests
which a legislature is empowered to raise to a level even above
the constitutionally protected rights. What is envisaged seems
to be the broad collective interests of the community which, when
applied, may have the effect of restricting the exercise and
operation of individual rights and freedoms.
Just Requirements of the General Welfare of a Democratic Society
This ground, which is also borrowed from UDHR, Article 29,
permits a restriction to be placed in the interests of the general
welfare which is just and such as would be compatible with a
democratic society. A “democratic society” would have attributes
other than the characteristics of democracy as a form of government.
Art.29.
185
As Humphrey points out:
A society is not democratic simply because its
government represents the majority, has the
outward trappings of a democracy or because it
calls itself a democracy.^
He proceeds to explain:
In a democratic society there are or should be
some limits on the exercise of governmental powers
including the powers of the legislature. This is
sometimes achieved by entrenching a bill of
rights in the constitution, by the separation of
powers, or by some other system of checks and
balances to restrain the powers of the various
branches of government. These limits are
imposed on the assumption that whoever possesses
power, it is safer that power should be restrained.
In a democratic society there will be freedom
of expression and of opinion, and public opinion
will exercise some control over the imposition
of restrictions on the enjoyment of freedom.
In brief, a democratic society may be described as one in which
2
the rule of law prevails. It is to meet the just requirements
of the general welfare (i.e. the greatest happiness for the
greatest number) of such a society that restrictions may be prescribed by law.
Racial and Religious Harmony
Harmony means compatibility or concord. A restriction
imposed in the interests of racial and religious harmony will be
one directed towards preventing discord, unpleasantness or
dissonance between racial and religious groups.
National Economy
This is a ground peculiar to Sri Lanka; it was first
included in section 18(2) of the 1972 Constitution. It was
successfully invoked by the State before the Constitutional
Court in 1973 to justify the Associated Newspapers of Ceylon
(Special Provisions) Bill. On that occasion, the Court applied
this concept without actually explaining what it understood by
the term. However, in setting out the circumstances that led
to the Government’s decision to convert a one-family newspaper
business into a public company; in particular, the findings of
John P.Humphrey, “The Just Requirements of Morality, Public
Order and the General Welfare in a Democratic Society”, The Practice
of Freedom (Toronto: Butterworths, 1979), p.137.
f’or essential requirements of a society under the rule of
law, see The Rule of Law and Human Rights: Principles and Definitions (Geneva: ICJ, 1966), pp.5-8.
186
a commission of inquiry that the directors of the company had
contravened the exchange and import control laws of the land, the
Court expressed itself thus:
Since the dawn of independence the economy of our
country has been to a great extent influenced by the
foreign resources available to the country. Every
developing nation in the world has had to fight the
hard way to earn valuable foreign exchange for its
development programnes. Sri Lanka is no exception.
The depletion of our foreign exchange resources has
always caused an imbalance in our economy. Ways and
means had been devised by the enactment of exchange
control laws to prevent the trafficking in foreign
exchange, but whatever preventive measures had been
adopted, the designing mind had always found loopholes and gaps in the law to swindle the nation of
foreign exchange which should legitimately have come
to the State.
Every person or company which indulges in activities
which deprive a nation of vitally needed foreign
exchange is in fact waging an economic war against
the State. The State is therefore both morally and
in the interests of the nation justified in enacting
laws which will serve to curb the powers and tendencies
of those who are in commanding heights from which they
could deprive the country of such foreign exchange.
The magnitude of the offences in relation to foreign
exchange has attained such proportions that the State
has even found that the normal laws of the land are
inadequate to bring the offenders to justice. Special
legislation in the form of the Criminal Justice Commissions Act, No.14 of 1972, has been enacted in
relation to offences of foreign exchange which
endanger the national economy of the land.1
A restriction on the ground of “national economy” may, therefore,
be imposed only if the activity sought to be curbed or regulated
relates to an area such as foreign exchange or currency, and such
activity, if unchecked or unregulated, is likely to affect the
economy of the country.
Parliamentary Privilege
The Parliament (Powers and Privileges) Act, No.21 of 1953,
as amended by Law No.5 of 1978, already contains a statement of
restrictions imposed on the exercise and operation of the freedom
of speech and expression. The rationale for this restriction is
that Members of Parliament should, for the proper performance of
(1973) DCC, Vol.l, p.35, at 46.
187
their functions, enjoy complete freedom of speech and debate
within the chamber. Accordingly, no right of reply is available
to a citizen in respect of statements made in Parliament;’*’ the
proceedings of Parliament or of a parliamentary conmittee may not
2
be published if such publication has been prohibited by Parliament;
the proceedings of a parliamentary committee may not, in any event,
3
be published before they are reported to Parliament; and the
publication of any statement which Parliament considers to be
4
defamatory of itself or of a member, is prohibited.
Contempt of Court
The law of contempt is contained in decisions of the Supreme
Court applying, in appropriate circumstances, English common law
on the subject. Accordingly, the following forms of speech and
expression are punishable as contempt of court:
a) that which scandalises the court or a judge thereof,^ or the
g
judiciary generally; i.e. any matter which is calculated to
bring a court or a judge of the court or the judiciary into
contempt or to lower his or its authority (e.g. by attributing
dishonesty, impropriety or incompetence); or which is calculated to hold the court or the judge thereof up to odium or
ridicule;^
b) that which is calculated to obstruct or interfere with the due
g
course of justice or the lawful process of the court (e.g. any
comment on the proceedings of a pending case reflecting on the
judge, jury, parties, their witnesses or counsel appearing in
the case and which is calculated to prejudice the fair trial
or influence the decision); or any matter affecting the
proceedings of a pending case which has a tendency to prejudice
S.3.
Schedule, Part A, s.6.
Ibid., Part B, s.9.
Ibid., Part A, ss. 7, 8.
In the matter of Armand de Souza (1914) 18 N.L.R. 33; In the
matter of a Rule on H.A.J.Hulugalle (1936) 39 N.L.R. 294; In the
matter of a Rule on P.Ragupathy, Advocate (1945) 46 N.L.R. 297;
Reginald Perera v. The King (1951) 52 N.L.R. 293.
In re S.A.Wickremasinghe (1954) 55 N.L.R. 511.
In the matter of the RuTe on De Souza (1914) 18 N.L.R. 41.
Abdul Wahab v. Perera (1936) 39 N.L.R. 475; Jayasinghe v.
Wijeyesinghe (1938) 40 N.L.R. 68; Veerasamy v. Stewart (1941)
42 N.L.R. 481; Reginald Perera v. The King, supra; AttomeyGeneral v. Vaikunthavasan (1951) 53 N.L.R. 558; In re Jayatilleke
(1961) 63 N.L.R. 282.
188
the public for or against a party.^
As early as 1899, the first category noted above had become
obsolete in England since “courts are satisfied to leave to public
opinion attacks or comments derogatory or scandalous to them”; it
continued to be applicable, however, “in small colonies consisting
principally of coloured populations” where it was “absolutely
2
necessary” to preserve “the dignity of and respect for the court”.
Nevertheless, courts of independent Sri Lanka have continued to
commit persons for contempt on the ground that they have “scandal3
ised the court”.
Defamation
4
Defamation, under existing law, is both a tort and an
offence. For the latter purpose, a person is said to have defamed
another if he:
by words, either spoken or intended to be read, or
by signs or by visible representations, makes or
publishes any imputation concerning any person,
intending to harm, or knowing or having reason to
believe that such imputation will harm, the reputation of such person. 5
The following matter is, however, excepted:
Imputation of any truth which the public good requires to be
made or published
Opinion expressed in good faith on the conduct of a public
servant in the discharge of his public functions
Opinion expressed in good faith on the conduct of any person
touching any public question
Publication of reports of proceedings of courts of justice
Opinion expressed in good faith on the merits of a case decided
by a court or on the conduct of witnesses or others concerned
therein
Opinion expressed in good faith on the merits of a public
performance
Censure passed in good faith by a person having lawful authority
over another
The Queen v. Peries (1964) 68 N.L.R. 372.
McLeod v. St.Aubyn j_18997 AC 549.
Reginald Perera v. The King, supra; Attorney-General v.
Vaikunthavasan, supra.
For a full exposition of the subject, see C.F.Amerasinghe,
Defamation and other aspects of the actio iniurarum in Roman-Dutch
Law (Colombo: Lake House Investments Ltd, 1968).
Penal Code, s.479.
189
Accusation against a person preferred in good faith to a
person having lawful authority over that person
Imputation on the character of another made in good faith by
a person for the protection of his interests
Caution made in good faith intended for the good of the
person to whom it is conveyed or for the public good.^
Incitement to an Offence
This ground on which the freedom of speech and expression
may be restricted by law is incitement to an “offence” and not
incitement to “violence”. “Offence” is a very wide term, and
includes every act made punishable by law. Under existing law,
incitement to (or instigation of) an offence is already punishable
as “abetment”; the penalty attached being the same as provided for
2
the commission of the offence concerned.
Ibid.
Ibid., s.100,
CHAPTER IV
THE COURT
The effective enforcement of fundamental rights presupposes
the existence of a tribunal which is independent. This independence is acquired and possessed only when, and for so long as, the
men who constitute such tribunal are free to make up their own
minds. That is, a judge must be free to act according to his own
knowledge and understanding of the law and to be guided by his own
conscience. He will, of course, find it extremely difficult to do
this if he is subjected to influences, inducements or pressures,
direct or indirect, whether gratifying or distasteful, from whatever quarter and for whatever reason. All three Constitutions
under review, as well as ordinary statute law, contained provisions
designed to secure the independence of the judiciary. In this
chapter, it is proposed to examine these legal safeguards, and
the extent to which they have served their purpose. This examination will be confined to those superior courts within the island
which are, or were, vested with jurisdiction in respect of the
protected rights, namely, the Supreme Court and the Court of
Appeal on the one hand, and the Constitutional Court on the other.
The former were regular courts; the latter was a new institution
outside the traditional court structure which was conceived of and
experimented with as Sri Lanka emerged into republican status.
The Regular Courts
The Supreme Court which was in existence when the 1946
Constitution came into force had been established by the Charter
of Justice 1801, and been continued in existence by the subsequent
Charters of 1810, 1811 and 1833, by the Administration of Justice
Ordinance 1868 and by the Courts Ordinance 1889. The latter
provided for a Chief Justice and eight Puisne Justices (later
increased to ten’*’). Apart from an original criminal jurisdiction
Criminal Law (Special Provisions) Act, No.l of 1962.
191
and an appellate and revisionary jurisdiction, the Court had the
power to grant and issue mandates in the nature of writs as well
as injunctions of limited application.
The Government decided in 1970 that, independent of steps
being taken to declare Ceylon a republic, a court of appeal
sitting in Colombo should replace the Privy Council which sat in
London as the country’s highest appellate tribunal. A bill
introduced in Parliament for this purpose received the GovernorGeneral’s assent on 28 October 1971 and was brought into operation
on 15 November 1971. ^ The Court of Appeal thus established
comprised a President and six other Justices of Appeal. An
appeal lay, inter alia, from any judgment of the Supreme Court
granting or refusing to grant a mandate in the nature of a writ,
being an appeal on a question of law; and from any judgment of
the Supreme Court on any question as to whether any written law
was ultra vires the Constitution, or as to the interpretation of
any constitutional provision. The Court was also vested with a
consultative jurisdiction, in terms of which the GovernorGeneral could seek its opinion on any question of law or fact of
sufficient public importance.
The Administration of Justice Law, No.44 of 1973, which
came into operation on 1 January 1974, replaced the existing
courts structure with an entirely new judicial system based on
the principle of a single appeal. The Courts Ordinance and the
Court of Appeal Act were among the statutes that were repealed.
A new Supreme Court, consisting of a Chief Justice and twenty
other Judges, was established as the only superior court of
record. Its jurisdiction was substantially similar to that of
its predecessor, except that its original criminal jurisdiction
and the power to grant and issue injunctions was transferred to
a new High Court.
A further break in continuity occured in 1978 when the new
Constitution repealed the Administration of Justice Law and
established two new superior courts and defined their jurisdiction.
The higher of these was the Supreme Court, the final court of
appeal, which was vested, inter alia, with jurisdiction to protect
Court of Appeal Act, No.44 of 1971. This Court which was to
be the supreme court in the country was not so designated in order
to avoid changing the designation of the existing Supreme Court and
thus appearing to interfere with the terms and conditions of appointment of the judges of that Court.
192
fundamental rights and to examine bills for constitutionality.
With the principle of a second appeal restored, this Court was
fashioned on the lines of the short-lived Court of Appeal of
1971, with provision for not less than seven nor more than eleven
Judges, including a Chief Justice.
The 1946 Constitution sought to guarantee the independence
of Judges of the Supreme Court by providing that they shall be
appointed by the Governor-General, shall hold office during good
behaviour until they reach the retirement age of 62 years, shall
not be removable except by the Governor-General on an address of
the Senate and the House of Representatives, and that their
salaries shall be determined by Parliament and be charged on the
Consolidated Fund.’*’ When the Court of Appeal was established, it
was hoped that it would be possible to attract to that Court the
best available talent in the country irrespective of age. Accordingly, a fixed term of five years was fixed by the Court of Appeal
Act for its Judges. In every other respect, the guarantees
offered for security of tenure were the same as those contained
in the 1946 Constitution; indeed, they were supplemented by the
additional provision that the salary payable to a Judge may not
be diminished during his term of office.
The inaugural session of the Court of Appeal took place on
2
9 March 1972 in surroundings at Hulftsdorp which bore a marked
resemblance to the Downing Street panelled chamber of the Judicial
Committee which it replaced. But even as the Attorney-General
rose “to welcome the new institution as a functioning body in the
3
appellate structure of our judicial system”, the new Minister of
Justice was preparing his proposals for the re-structuring of that
judicial system; proposals which did not contemplate the continued
4
existence of the Court of appeal. Accordingly, the 1972 Constitution, which came into force two months later, recognised the
S.52. The Governor-General was required to exercise his
powers, authorities and functions “as far as may be in accordance
with the constitutional conventions applicable to the exercise of
similar powers, authorities and functions in the United Kingdom by
His Majesty”: s.4(2).
Hulftsdorp, named after a Dutch Governor who resided there,
had been the seat of the superior courts since the beginning of the
century. Its vicinity abounds with hundreds of Proctors’ offices.
Ceylon Daily News, 10 March 1972.
Felix Dias Bandaranaike replaced Senator Jayamanne as Minister of Justice after the abolition of the Senate in January 1972.
Unlike his predecessor, Bandaranaike was firmly committed to a
single-appeal system.
193
continued existence of the Court of Appeal and the Supreme Court
“unless the National State Assembly otherwise provides”.^ The two
superior courts began to live on borrowed time, in the sense that
they were now liable to be abolished or replaced at any time by
ordinary legislation. Meanwhile, the Constitution guaranteed that
Judges shall be appointed by the President; that they shall hold
office during good behaviour and not be removable except by the
President upon an address of the National State Assembly; that
while the tenure of a Judge of the Court of Appeal shall be as
provided in the Act which created that Court, the age of retirement
of a Judge of the Supreme Court shall be 63 years (thus obviating
the need for them to depend on executive largesse for that extra
2
twelve months); that their salaries shall be determined by the
Assembly and be charged on the Consolidated Fund; and that neither
the salary payable nor the age of retirement of a Judge shall be
3
reduced during his term of office. Despite protestations to the
contrary, the ground had been prepared to base an argument that
the Assembly could not only establish new courts in place of the
existing ones, but that it could go further and prematurely terminate the services of serving judges. Indeed, the Assembly asserted
the power to do precisely that, not once but on two separate
4
occasions.
The 1978 Constitution now declares that Judges of the Supreme
Court are appointed by the President; that they hold office during
good behaviour until they reach the age of 65 years; that they are
not removable except by order of the President upon an address of
Parliament presented for such removal on the ground of proved misbehaviour or incapacity (the procedure for the investigation and
S.121(2).
The 1946 Constitution provided that the Governor-General may
permit a Judge who had reached the retirement age to continue in
office for a period not exceeding twelve months: s.52(3). For the
application of this provision, see infra, p.
S.122. The 1972 Constitution also required every judge to
exercise his judicial powers and functions without being subject to
any direction or other interference proceeding from any person,
other than a superior court, and declared it to be an offence
punishable with imprisonment or fine for any person to so interfere
or attempt to interfere: s. 131. Under Roman-Dutch law, which was
applicable in Sri Lanka in this respect, a judge was not liable
to be sued in respect of his acts unless he had been actuated by
some indirect or improper motive: Voet, 5.1.88.
Infra, p. 211.
194
proof of the alleged misbehaviour or incapacity being prescribed
either by standing orders of Parliament or by law); and that their
salaries are determined by Parliament and are not reducible.^-
To what extent have these constitutional safeguards in fact
protected the judiciary from influence or interference by the
executive and the legislature ?
Power of Appointment
Judges
While a legal training and a minimum period of actual
practice were a sine qua non for appointment to the minor judiciary,
no such qualifications were prescribed, either by law or regulation,
for appointment to a superior court. Nevertheless, the appointing
authority has not, during the period under review, looked outside
the legal profession when making such appointments.
The 37 lawyers appointed as Puisne Justices in the original
Supreme Court were all drawn from the traditional sources: 17 from
the Judicial Service, 11 from the Ministry of Justice and the
3
Official Bar, and 9 from the Unofficial Bar. In respect of those
who were already employed under the State, the twin principles of
seriority and merit appears generally to have been the determining
factor in their selection for higjh judicial office. The average
age of the appointees was 54 years; somewhat higher in the case of
judicial officers and lower in the case of legal officers. Therefore, a Judge of that Court usually brought with him to the bench
at least 25 years experience of judicial work in the original courts
in different parts of the country or of intimate involvement as a
lawyer in the executive and legislative branches of government.
It has not been one of the traditions of the Sri Lanka Bar for its
leaders to make themselves available for judicial office. This is
due to a number of reasons: the wide disparity between incomes at
4
the Bar and judicial salaries; the prohibition of private practice
after retirement from the Court; and the increasing involvement of
lawyers in political activity. Indeed, some of the appointments
Arts. 107, 108.
Under Rules formulated by the Judicial Service Comnission
(and later by the Cabinet), only lawyers who had had at least six
years practical experience at the Bar could be considered for appointment to the Judicial Service. The term “Judicial Service” is
used to describe District Judges and Magistrates. They are also sometimes described as “judicial officers” or as “members of the minor
judiciary”.
See Appendix 2. 4. Infra, p. 216.
195
of successful middle-rung private practitioners were initially
received with some scepticism; in particular, the appointment in
1965 of thirty-nine year old C.G.Weeramantry shortly after having
served as the counting agent of Prime Minister Dudley Senanayake,
and in 1972 of Jaya Pathirana, an intensely vocal SLFP member of
the 1960-64 Parliament.-^- Similar principles determined the choice
of Judges for Ceylon’s substitute for the Judicial Committee.
Two were retired Puisne Justices (one of whom was a Tamil), two
(of whom one was a Roman Catholic) were among the four most senior
functioning Puisne Justices, and the fifth was the Attorney-General.
The same traditionalist approach was adopted in the selection
of personnel for the 1974 Supreme Court, seniority in service
being the primary consideration. The re-constituted Court comprised
two Judges of the former Court of Appeal, all nine Judges of the
2
original Supreme Court, the five serving Commissioners of Assize,
the most senior District Judge, a deputy Solicitor-General, and
three successful private practitioners. Vacancies on the Court were
filled by the appointment in December 1974 of the Public Trustee;
in June 1975 of the acting Attorney-General; and in January 1976
of the senior High Court Judge. But the sudden expansion of the
Court, from eleven to twenty-one, necessarily meant the appointment
of a number of persons who, in normal circumstances, would probably
not have been chosen. The pool of selection was transformed into
the Court itself. A deterioration in standards was inevitable.
Indeed, breadth of vision, versatility, and a commitment to the
Rule of Law, which had been the hallmarks of a Supreme Court Judge
and which distinguished him from the judicial officer of a subordinate court, and gave him the confidence to act without fear even
in highly contentious matters to which the State was a party,
became less discernible.
Pathirana had declined an appointment as a Commissioner of
Assize in October 1970 “as he desired to remain in active politics”
(Private and confidential letter from Felix Dias Bandaranaike,
Minister of Public Administration, to Senator Jayamanne, Minister
of Justice, dated 4 October 1970, Records of the Special Presidential Commission of Inquiry 1978, marked P 160).
Commissioners of Assize were appointed to preside over
criminal sessions of the Supreme Court in a particular circuit. Each
such session usually extended for about three months. They were
drawn from the same sources as permanent Judges of the Supreme Court,
with leading criminal lawyers showing a greater willingness to
accept these short-term assignments.
196
A departure from these principles took place in 1978 when
the Supreme Court was again re-constituted. The new Court was a
much more compact body than its predecessor, but if the Government
had so wished, all the outgoing nineteen Judges could conveniently
have been accommodated in the two new superior courts – the Supreme
Court and the Court of Appeal. Since the Government had not
followed the 1971 precedent of designating the final appellate
tribunal as the Court of Appeal, the most senior of the outgoing
Judges (supplemented if necessary by other available talent) could
have been appointed to the new Supreme Court, and their remaining
colleagues to the new Court of Appeal which was to exercise substantially the jurisdiction of the former Supreme Court. This course,
however, was not adopted. Instead, eight of the Judges were
excluded altogether, and the remaining eleven were re-appointed
to the two Courts without regard to seniority, experience or age.’*’
Of the seven Judges who were hand-picked for appointment to
the Supreme Court, four were comparatively junior Judges of whom
two had been chosen by the President earlier that year to be his
commissioners for the purpose of probing the political acts and
conduct of the Prime Minister, Ministers and officials of the
2
previous government. The third member of that commission, a
District Judge, by-passed the High Court to take a great leap on
to the Court of Appeal. Other new appointees to the Court of Appeal
included a High Court Judge who had left the bench soon after the
general election of July 1977 to serve as Secretary for Justice,
and three members of the Unofficial Bar who had been associated
in political and legal work on behalf of the ruling United National
Party. One of them, J.A.R.Victor Perera, a provincial Proctor,
had stormed his way into the limelight only a month previously
by making public a letter allegedly written by him to the former
3
Minister of Justice, Felix Dias Bandaranaike. This letter, which
was read out in the National State Assembly by Prime Minister
Premadasa, expressed “joy that the nefarious regime in which you
played such a prominent role has come to an end”. The letter went
For the movement of Judges, see p.215.
Infra, p.226.
Ceylon Daily News, 4 August 1978. Bandaranaike, however,
denies having received it.
197
on to allege, inter alia:
You have ruined our legal system and shattered the
confidence we had in the judiciary and in state
officers. Your doctrine of rule by the Party for
the Party and with the Party alone created all the
chaos, nepotism and corruption during the past
seven years. The appointments you made during the
past seven years of party stooges and sycophants
to quasi-judicial tribunals and other offices of
importance ruined the country and were responsible
for your ignominious downfall.
Perera was appointed to the Court of Appeal barely a month after
this alleged letter had been made public. Very soon after, he was
also to adorn the Supreme Court, being preferred for appointment
over several senior colleagues including the President of the Court
of Appeal. Unmistakably, the process of politicising the Supreme
Court had been set in motion. Seniority and merit had given way
to that ambiguous criteria of “political acceptability”.
Chief Justices
The selection of the Chief Justice has always been regarded
as a matter entirely within the discretion of the Prime Minister.
In making that selection, existing seniority among Judges has
sometimes been respected. At other times, seniority has been
artificially created. On one occasion, at least, seniority was
altogether ignored. Finally, the principle was established that
the selection need not be made from within the judiciary at all.
In October 1947, when the 1946 Constitution came into force,
the Chief Justice was Sir John Howard,K.C., an officer in the
Colonial Legal Service. A.E.P.Rose,K.C., another expatriate, who
had been appointed a Puisne Justice in January 1945 and had served
as acting Legal Secretary from October 1954 until the State Council
ceased to exist two years later, was appointed Attorney-General.
At the time of his appointment it had been agreed that the salary
attached to his post would be higher than that of a Puisne Justice;
that the status of the post would take precedence before that of
Puisne Justices; but that the seniority of two serving Judges who
had been appointed before him, Justices Wijewardene and Jayatilleke,
would remain unaffected for purposes of promotion. ^ Accordingly,
after Sir Arthur Wijewardene,K.C., and Sir Edward Jayatilleke,K.C.,
Letter of 13 October 1947 from the Secretary to the Governor
to Hon.A.E.P.Rose, quoted in Parliamentary Debates (House of Representatives), 15 March 1955, col.2587.
198
had each served as Chief Justice, Sir Alan Rose,K.C. was appointed,
on 11 October 1951, to an office to which he would ordinarily have
succeeded at that stage had he remained throughout on the Supreme
Court.
Justice Basnayake succeeded Rose as Attorney-General. He was
third in seniority on the Supreme Court, but unlike on the previous
occasion on which this office was filled, no reservation was made
in regard to the seniority of Justices Dias and Nagalingam for
purposes of promotion. On the contrary, when occasion arose a few
months later to make an acting appointment to the office of Chief
Justice, Prime Minister D.S.Senanayake wrote thus in a strictly
confidential letter to the Governor-General:
Normally the Attorney-General who has much higher
precedence than the Puisne Justices should act as
Chief Justice, but I am not anxious that the work
in the Attorney-General1 s Department should be
disturbed by such an appointment, specially because
the Solicitor-General is also functioning in some
other capacity and is not in the Department. I,
therefore, feel that the next senior Puisne Justice
should act for the Chief Justice on the distinct
understanding that it will in no way enhance his
claims for permanent appointment to this post at
some future date.l
Accordingly, Justice Nagalingam, the senior Puisne Justice, acted
as Chief Justice in March 1952, July 1953, October 1953 and February
1954; but it was not until the last occasion that he was informed
by the Governor-General that:
I have to add that neither this nor any previous
acting appointment as Chief Justice confers any
claim to the permanent office of Chief Justice. 2
Clearly, it had been decided that Basnayake should, by virtue of
his appointment to the office of Attorney-General, supersede
Justice Nagalingam who had been his senior in public service and
3
on the Supreme Court, and a principle was now being sought to be
established. It was later claimed by Prime Minister Kotelawela
that when Justice Basnayake was offered the post of AttorneyGeneral, he had been given an assurance by the then Prime Minister
Letter of 16 January 1952, ibid., col.2594.
Letter of 26 February 1954 from the Governor-General to
Justice Nagalingam, ibid., col.2558.
Nagalingam, who was nine years older than Basnayake, was
Attorney-General from 15 January 1946. On his appointment as acting
Puisne Justice, Basnayake succeeded him as acting Attorney-General.
Nagalingam was appointed a Puisne Justice on 22 July 1947; Basnayake
followed on 23 October 1947: Civil List 1955 (Colombo, Govt.Press,1955).
199
that he would be appointed to succeed Sir Alan Rose as Chief
Justice.’‘ Having regard to the fact that Rose was not due to retire until 8 October 1962 (or 8 October 1961 if he had not been granted the hitherto customary extension of an year), this assurance, if in fact given, would have been of very little avail or consequence to Basnayake who would have retired from the office of Attorney-General on reaching his sixtieth year on 3 August 1962. Whether a Prime Minister could have thus fettered the discretion of his successors in the matter of recommending the appointment of a suitable person whenever the office of Chief Justice fell vacant is also an equally relevant question. But events took quite a different turn. On 1 July 1954, the “Trine”, a left-wing weekly newspaper issued a special edition in which it alleged that the Governor-General designate, Sir Oliver Goonetilleke, and the Governor of the Central Bank, N.U.Jayawardene, were engaged in swindles on an international scale. On 5 July, the Prime Minister, Sir John Kotelawela, made a statement in Parliament on a £ 5,000,000 loan which had been floated by the Government and which was referred to in the newspaper article; he denied any impropriety on the part of any official.’‘ On the same
day, the Leader of the Opposition, S.W.R.D.Bandaranaike, moved in
the House of Representatives that the appointment of Goonetilleke
as Governor-General should not become effective until a cctimission
of inquiry into certain other charges of improper conduct by N.U.
2
Jayawardene, which was then sitting, had concluded its business.
On 17 July, the offices of the “Trine” were raided by the C.I.D.
3
and certain documents seized. Two weeks later, the passport of
Zj.
Mrs.Theja Goonewardene, the editor of the “Trine”,was impounded.
On 7 August, Attorney-General Basnayake filed an Information in
the Supreme Court alleging that Theja Goonewardene had defamed
Goonetilleke and thereby committed an offence punishable under
section 480 of the Penal Code.^ On the same day, the Minister of
Justice directed that the trial of Theja Goonewardene be held at
Bar without a jury. On 26 October, the Trial at Bar commenced
Times of Ceylon, 5 July 1954.
Ceylon Daily News, 6 July 1954.
Ibid., 18 July 1954.
Ibid., 1 August 1954.
Ibid., 8 August 1954.
Ibid.
200
in the Supreme Court before three Judges: Chief Justice Rose,
Justice Gunasekera and Justice Pulle. The Attorney-General led
a formidable team for the Crown; the defendant was represented
by D.N.Pritt,Q.C.‘*’ The trial was an acrimonious one. Epithets
were flung at each other across the Bar table. The usually
unruffled Attorney-General felt that this was “the result of
admitting to our Bar people who are untrained here; these
foreigners are untrained in the traditions of our BarV; Mr.Pritt
countered that “if my learned friend the Attorney-General is the
leader of this Bar, I thank God that I am not trained in its
2
traditions”. The newspapers thought that counsel behaved like
3
peevish schoolboys. On 3 December, the Chief Justice delivered
the Order of the Court, acquitting the defendant; the material
adduced by the Crown to establish that the defendant had published the issue of the newspaper in question with the necessary
knowledge of its contents was insufficient to justify calling
4
upon her for her defence. A highly publicised, politically
charged cause celebre had fizzled out.
Barely seven weeks later, on 22 January 1955, the Ceylon
Daily News carried the following official announcement:
The Governor-General has appointed Mr.H.H.Basnayake,
Q.C., Attorney-General, to act as the Chief Justice
with effect from June 15, until the leave of Sir Alan
Rose, the permanent Chief Justice, preparatory to
retirement expires, and thereafter to be the Chief
Justice.
It is understood that Mr.Justice C.Nagalingam,
Senior Puisne Justice, who was scheduled to retire
on October 24 this year, has sent in his papers for
retirement earlier than expected.
Mr.Basnayake’s successor as Attorney-General has
not yet been named. Mr.T.S.Fernando,Q.C., SolicitorGeneral, is now acting as Attorney-General as
Mr.Basnayake is on leave.
There had been no prior intimation that Sir Alan Rose had any
intention of taking long leave, let alone retiring prematurely;
indeed, he had availed himself of six months leave abroad only
in the previous year. This bland announcement in the progovemment newspaper also suggested that Justice Nagalingam, who
Ceylon Daily News, 27 October 1954.
Ibid.
“Heard in Hulftsdorp” by Lex, Times of Ceylon.
Ceylon Daily News, 4 December 1954.
201
had acted for the Chief Justice on every previous occasion when
that office was temporarily vacant, would not be available to do
so in July as he had “sent in his papers for retirement earlier
than expected”. It cleverly suppressed the fact that Justice
Nagalingam had actually walked out of his chambers in a huff and
sent in his papers for retirement on the previous afternoon when
he had heard the official announcement that he was being superseded.’*’ Above all, what was unique in the announcement was that
a permanent appointment was being made to an office one year before
it became vacant and an acting appointment six months in advance,
thereby binding any future administration which may have succeeded
the present prior to either of those dates. As it turned out,
Basnayake assumed office as Chief Justice on 1 January 1956; the
Government that appointed him was decisively defeated at the polls
three months later.
Why did Sir Alan Rose quit the office of Chief Justice
prematurely ? The “Guardian”, a short-lived but independent
English daily newspaper, explained thus:
The immediate reasons which led to the resignation
of Sir Alan are openly discussed in legal and parliamentary circles today. These circles state that
Sir John sent for Sir Alan and told him that he had
been hard on Mr.Basnayake during the trial, that he
could also have stopped Mr.Justice Gunasekera being
hard on Mr.Basnayake and that Sir Alan had entertained Mr.D.N.Pritt,Q.C., senior defence counsel in
the Theja Goonewardene case, to l u n c h . 2
This report was not contradicted. In the House of Representatives,
the question was specifically asked:
Did or did not the Prime Minister summon Sir Alan
Rose and charge him with misconduct in the Theja
Goonewardene defamation case ? In particular, did
he or did he not refer to the misconduct of Sir Alan
Rose in reference to Mr.Basnayake ? Did he or did
he not refer to Sir Alan Rose having entertained
the senior defence counsel, Mr.D.N.Pritt, to
lunch ? Mr.Speaker, we would like to have definite
replies to these allegations.3
There was no immediate answer forthcoming from the Prime Minister
Parliamentary Debates (House of Representatives), 15 March
1955, col.2548. See also Morning Times, 23 January 1955, p.l.
24 January 1955.
W.Dahanayake, Parliamentary Debates (House of Representatives), 15 March 1955, col.2522.
202
who was present in the House at the time. Later, in the course of
a prepared statement which was read out by him, Kotelawela explained
that Rose’s premature departure was to facilitate the process of
“CeyIonisation” of the Supreme Court. He tabled a letter dated
15 January 1955 from the Chief Justice to the Governor-General which
stated, inter alia, that:
In view of the considered policy of Government
that all key posts in the Island should be held
by Ceylonese, my own position as Chief Justice
naturally arises for consideration.
In order, therefore, to avoid any possible
embarrassment to Government, I have discussed
the matter with the Prime Minister and have
informed him that I am placing in your hands my
papers for retirement.1
In fact, the “Ceylonisation” of the Chief Justiceship had been
achieved as far back as 1949 with the appointment of Sir Arthur
Wijewardene. The more plausible and probable explanation was
either that the Government being displeased with the performance
of the Chief Justice in the Trine Case wished, in the words of a
2
Member of Parliament, to “shove him out”; or that, having regard
to the impending general election, it desired to reward a loyal
Attorney-General or secure a safe Chief Justice. Whatever might
have been the truth, the reaction of at least a section of the
public to this chess-board approach to the Supreme Court was
expressed in the following motion which was moved by the Leader of
the Opposition, S.W.R.D.Bandaranaike, and debated in the House of
Representatives:
That since the circumstances attendant on the
retirement of the Chief Justice and the appointment of a successor to him on the advice of the
Prime Minister have led to a loss of public
confidence in the administration of justice and
are calculated to undermine the independence of
the Judiciary, this House has no confidence in
the Government.^
Shortly after Basnayake assumed office as acting Chief Justice,
in June 1955, influenced perhaps by the recently enunciated principle
Parliamentary Debates (House of Representatives), 15 March
1955, col.2591. For Prime Minister’s reply, see col.2592.
Ibid., col.2552.
Ibid., col.2500. For proceedings of the debate, see cols.
2500-2608. See also questions asked in the Senate by Senator S.
Nadesan,Q.C., and the answers thereto by the Minister of Justice,
Parliamentary Debates (Senate), 25 January 1955, col.931 and 8 March
1955, col.988, respectively.
203
that “the Attorney-General should not only act for the Chief
Justice, but should also succeed him in the permanent office”,^
Justice Gratiaen, the senior Puisne Justice, took the unusual
step of applying to the Governor-General in writing for appointment as Attorney-General. His application was forwarded through
the Minister of Justice who recommended it. The Governor-General
very properly returned the application to the Minister, reminding
him that appointment to that office is made on the advice of the
Prime Minister “who would, no doubt, tender such advice after due
2
consideration of all those who are eligible for that office”.
In fact, no permanent appointment was made to that office until
the next general election. T.S.Fernando,Q.C. continued to function
in an acting capacity until his own appointment to the Supreme
Court by the newly-elected Bandaranaike Government on 2 May 1956.
On the same day, Justice Gratiaen moved over to the AttorneyGeneral ‘s Chambers.
When Chief Justice Basnayake, having survived three changes
of government, retired from office on 3 August 1964 on reaching
the age of 62 years, the Attorney-General was D.St.C.B.Jansze,Q.C.
He had held that office for six years, having reached it by promotion within the department. But the principle enunciated in 1955
was neither invoked by him, nor applied by the Government of Mrs.
Bandaranaike. Instead, Justice Sansoni, the senior Puisne Justice,
who was then about to conclude the Trial at Bar arising out of the
3
alleged attempted coup d’etat of January 1962, was appointed
Chief Justice. On his retirement, upon reaching the age of 62
years on 18 November 1966, the Attorney-General was A.C.M.Ameer,Q.C.,
a former deputy Solicitor-General who after a spell at the Bar
during which he had taken “silk”, had been appointed chief law
officer earlier that year. Prime Minister Dudley Senanayake did
not apply the 1955 principle; he recommended the senior Puisne
Justice, H.N.G.Fernando, for appointment as Chief Justice.
When the Court of Appeal was established in November 1971 as
the country’s highest appellate tribunal, Prime Minister Mrs.
Ibid., at col.2596, per Sir John Kotelawela.
Much publicity was given to this application in the Ceylon
Daily News of 8 November 1955. For the circumstances in which such
publicity came to be given, see J.L.Fernando, Three Prime Ministers
of Ceylon (Colombo: Gunasena, 1963), pp.74-79.
Infra, p. 422.
204
Bandaranaike’s choice for the prestigious office of President of
that Court was not Chief Justice H.N.G.Fernando, but 65-year old
retired Puisne Justice T.S.Fernando,Q.C. who was then the President
of the Geneva-based International Commission of Jurists. His
appointment lent credence to the Government’s professed desire
to establish an independent and competent tribunal which would
enjoy the confidence of all sections of the community. In an
editorial comment on his appointment, the pro-Opposition Ceylon
Daily News, several of whose directors had only recently been
found by a commission of inquiry headed by him to have been guilty
of wide-ranging offences under the exchange control laws of the
country, commented thus:
The independence of the Judiciary is not merely
institutional. It is also personal. The calibre
of judges, the integrity of the individual, is
as vital as the guaranteed independence of the
institution. It is in this perspective that we
welcome the appointment of Mr.T.S.Fernando,Q.C.,
as the first President of Ceylon’s Court of Appeal.
While congratulating him on this, the crowning
glory of his judicial career, we warmly commend
the Prime Minister for her impeccable choice of
this internationally known jurist, scholar and
man of high integrity and accept it as a token of
the Government’s respect for the vital principle
of an independent judiciary.
In the view of the incumbent Chief Justice:
By reason of his distinguished career both at the
Bar and on the Bench, by reason of his being a
devoted exponent of the principles of the Rule of
Law, and by reason of the high esteem he is held
in, he is eminently qualified for his appointment.
We all wish to congratulate him and we welcome his
return to Hulftsdorp.2
On 1 July 1970, Justice Tennekoon, who ranked fifth among the
Puisne Justices, had accepted the invitation of the new Prime Minister, Mrs.Bandaranaike, to become Attorney-General. No reservation
was made, for purposes of future promotion, of the seniority of
Justices Silva, Sirimanne, Alles and Samarawickrema who ranked above
him. In his letter of acceptance, 55-year old Tennekoon informed
Ceylon Daily News, 22 November 1971. For report of the
comnission, see S.P.VIII-1971.
Speech made on the occasion of the unveiling of the bust of
the late H.V.Perera,Q.C., at the Colombo Law Library: Ceylon Daily
News, 27 November 1971.
205
the Governor-General that he did not expect to serve in the office
of Attorney-General for more than three years.^ In the course of
a previous discussion he had had with the Prime Minister, no assurance had been sought, nor given, in regard to the office of Chief
Justice which was due to fall vacant, in accordance with the Const2
itution, two and a half years later, in November 1972. But, having
regard to the precedent established when a Puisne Justice last
accepted office as Attorney-General, Tennekoon obviously hoped to
succeed to the office of Chief Justice when that office next fell
vacant.
Two events, however, supervened shortly thereafter. By the
Court of Appeal Act, No.44 of 1971, a Court superior to the Supreme
Court was established in November 1971. By the 1972 Constitution,
which came into force on 22 May 1972, the retiring age of the Chief
Justice was raised to 63 years. While the President of the Court
of Appeal ranked above the Chief Justice, the position of the
3
Attorney-General in the new legal hierarchy remained undetermined.
Meanwhile, in March 1972, the Minister of Justice submitted a
Cabinet Memorandum on the proposed re-structuring of the superior
4
courts: one appeal and one appellate court was what was envisaged.
He also recommended that:
. . . all the existing Judges of the Supreme Court
and of the Court of Appeal, and all the existing
Corrmissioners of Assize, be offered appointments
in the new Supreme Court even if some_of them are
above the age limit suggested above /65 yeaxsf.
These persons could hold office in the new Court
for the balance period of their current terms of
office in their existing Courts. If their present
salaries are higher than those of the new Court to
which they are appointed, they could retain their
present salaries as personal to them. There are
at present 4 Judges of the Court of Appeal, 9
Judges of the Supreme Court and 4 Commissioners
of Assize.^
On 5 April 1972, the Cabinet approved these proposals, and on
16 June 1972 a draft law to give effect to them was submitted to
the Cabinet. On 3 July 1972, the Minister informed the President
Letter of 30 June 1970.
Private information.
In April 1973, the revised Precedence Table placed the
Attorney-General below the Chief Justice, but above the Judges of
both the Court of Appeal and of the Supreme Court.
Cabinet Memorandum No.112/72 of 20 March 1972.
Ibid.
206
of the Court of Appeal, the Chief Justice and the Attorney-General
of his proposals. The President of the Court of Appeal was further
informed that he would be the President of the new Supreme Court,
and he was requested to inquire from his colleagues on the Court
of Appeal whether they would agree to seniority in the new Court
being determined among them by reference to their respective dates
of appointment to the existing Supreme Court.^ On 7 July 1972, the
President of the Court of Appeal wrote to the Minister to say that
his colleagues were agreeable to that arrangement. Accordingly, if
the proposed law was passed in that form and brought into operation,
the President of the new Supreme Court would be T.S.Fernando,Q.C.,
who, having been appointed President of the Court of Appeal on 20
November 1971, would have been entitled to continue in office until
the end of 1976.
Attorney-General Tennekoon was clearly faced with a dilemma.
If he remained as Attorney-General, he would have to retire on
9 September 1974; if he reverted to the Supreme Court before that
date as he had originally intended to, he would probably have been
accommodated, following the principle agreed upon with the Judges
of the Court of Appeal, at the point of his old seniority. On 26
June 1973, shortly after the final draft of the Administration of
Justice Bill had been approved by the Cabinet, Tennekoon wrote to
the President of the Republic intimating his desire to retire from
the public service “for reasons which are entirely personal” on
reaching his 59th year on 9 September of that year, and applied
for leave preparatory to retirement with immediate effect. On the
next day, he withdrew his application for immediate retirement and
applied for leave instead. In the twenty-four hours that intervened between these two dramatic communications, Tennekoon had
discussions with both the President of the Republic and the Prime
3
Minister. No record of either discussion, even if made, is available. However, at the first meeting held thereafter, the Cabinet
reviewed the Administration of Justice Bill and decided, without
any memorandum before it, that no person who was over 63 years of
age should be appointed to the new Supreme court.^ On 2 August 1973,
Tennekoon was appointed to the Court of Appeal.
Private information.
Letters dated 27 June 1973 to the Minister of Justice and to
the Secretary for Justice.
Ibid.
Private information.
207
On 17 November 1973, six weeks before the date fixed for the
replacement of the Court of Appeal and the Supreme Court by the
new Supreme Court, Chief Justice H.N.G.Fernando reached his retirement age of 63 years. He was succeeded by the senior Puisne Justice,
G.P.A.Silva. Accordingly, of the Judges available for appointment
to the new Supreme Court on 1 January 1974, G.P.A.Silva (60), who
had been appointed a Puisne Justice in 1962, was the most senior.
Next in seniority were A.C.Alles (62) appointed in 1964, G.T.Samarawickrema (57) appointed in 1966, and V.Tennekoon (59) appointed in
But it was to Tennekoon that the Government offered the
highest judicial appointment in the country. The principle was thus
established that the Prime Minister was free to choose a Chief
Justice from among the existing Judges irrespective of, and on
considerations unrelated to, seniority. It was an extension of the
earlier principle that seniority may be artificially conferred on a
favoured Judge by prior appointment to the office of AttorneyGeneral .
In September 1977, when Tennekoon retired from the Supreme
Court, the most senior Judge was Samarawickrema who by then had
completed eleven years on the bench, during which period he had
acted as Chief Justice on several occasions, the most recent being
in August of that year. S.Pasupati had been Attorney-General for
two years, having succeeded to that office by promotion within the
department. Although Samarawickrema was widely expected to be
appointed Chief Justice, the choice of the newly-elected Prime
Minister, J.R.Jayewardene, was his own personal lawyer, N.D.M.
Samarakone,Q.C. 58-year old Samarakone was a leading civil lawyer
in the District Court of Colombo who had never previously held any
judicial office. As the President of the Bar Association remarked
at the ceremonial sitting held to welcome the new Chief Justice,
it was an “unprecedented step”.’*’ Samarakone himself said that he
was “deeply conscious of the departure from tradition” that his
2
appointment involved. The principle had been firmly established
that a Prime Minister is completely free and unfettered in his
choice of a Chief Justice.
Ceylon Daily News, 15 September 1977.
Ibid.
208
Tenure
The age of retirement of Supreme Court Judges is fixed by law.
Under the 1946 Constitution, however, the Governor-General could
permit a Judge who had reached the retirement age to continue in
office for a period not exceeding twelve months.’*’ In 1949, the
Government permitted the Chief Justice, Sir Arthur Wijewardene, who
had been appointed to that office at the age of 61 years 10 months,
to continue in office until he reached the age of 63 years. Similarly,
in 1950, his successor, Sir Edward Jayatilleke, who was appointed
Chief Justice at the age of 61 years 5 months, was permitted to
function until he reached the age of 63 years. In June 1955, when
Chief Justice Rose took six months leave preparatory to premature
retirement, the Judge next in seniority to him was Justice Nagalingam
who was due to reach his 62nd year in October. Had he been shown
the same consideration and been granted an extension until he
reached his 63rd year, it would have been possible for him not only
to have acted as Chief Justice for six months, but also to have
functioned in that office in a permanent capacity for a further ten
months. But Nagalingam was not granted an extension.
In twenty-five years, only one Puisne Justice received the
benefit of an extension: on 11 April 1971, Justice A.L.S.Sirimanne
was permitted to continue in service for an additional year. Neither
Justice Pandita Gunewardene, who reached his retirement age on
10 February of that same year, nor Justice de Kretser, who reached
that age on 20 January of the following year, received such favoured
treatment from the same Government. It is no doubt the recognition
that this provision was capable of being utilised to derogate from
the independence of the judiciary that led the framers of the 1972
and 1978 Constitutions to omit it altogether.
Parliament’s constitutional power of requiring the removal of
a Judge has, during the period under review, never been invoked.
Although Bandaranaike, as Leader of the Opposition, had sought to
censure the Government for the circumstances leading to the appointment of Attorney-General Basnayake as Chief Justice, he did not,
after his own election as Prime Minister in April 1956, set in motion
S.52(3).
209
the widely expected proceedings for the removal of the Chief Justice.
When the votes of the Supreme court were being discussed in August
of that year, the new Leader of the Opposition, Dr.N.M.Perera, who
had spoken in support of Bandaranaike’ s censure motion in the previous
year, asked the new Prime Minister to:
give us some definite idea as to what he intends to
do with regard to the present holder of the office
of Chief Justice of the Supreme Court, because if
the Government does not intend to take action, we
intend to take action of our own. We are intending
to move a substantive motion. So far as this House
is concerned, Members both on that side and on this
side are thoroughly dissatisfied and there is not
the slightest doubt in our minds as to the undesirability of that person continuing in office.1
He asked for a “definite pronouncement on the subject”, and received
from Finance Minister Stanley de Zoysa the curt reply that:
once a Judge has been appointed, it is altogether
undesirable for any Government to express an opinion
on the merits or demerits of the man who holds the
office.2
Earlier, in reply to Colvin R.de Silva, the Finance Minister had
been more explicit in clarifying the new Government’s attitude to
the Court:
I quite agree with the Hon.Member that it was
incorrect for the previous Prime Minister to have
made the appointment in advance which really implied
a somewhat more than justified confidence in the
continuance of himself in office. But I would like
to say this, that as far as the administration
is concerned, as far as the executive government is
concerned, we would wish to interfere as little as
possible in the affairs of the Supreme Court.3
Indeed, during Chief Justice Basnayake’s nine-year term of office,
although his judgments were often criticised, his own conduct as a
Judge was beyond reproach, and the question of his removal was thereafter neither pursued by N.M.Perera nor raised by anyone else. The
Opposition in Parliament did, however, give notice of a motion
against his successor, “deploring” his conduct, but not calling for
his removal.
Parliamentary Debates (House of Representatives), 9 August
1956, col.43.
Ibid., col.44.
Ibid., col.37.
210
Sansoni had barely completed his first year in office as Chief
Justice when he decided to hear the petition challenging the election
of the new Prime Minister, Dudley Senanayake, to the Dedigama seat
in the House of Representatives. This was a singularly unwise
decision since the Chief Justice is perhaps the one member of the
Supreme Court who has the closest contact with the Prime Minister;
he probably meets the Prime Minister regularly in Colombo’s diplomatic circuit and at official functions, and is invariably invited to
state dinners where, by reason of the precedence he enjoys, he sits
with the Prime Minister at the same table. The trial commenced on
17 January 1966; judgment was reserved on 31 January. On 19 February,
Dudley Senanayake left the country for medical treatment in the
United States. On the following day, the Ceylon Observer carried
a photograph of Senanayake being seen off at the airport by the
Chief Justice.”^ In the House of Representatives two days later,
when questioned by an Opposition MP as to why usual protocol was
not observed at the Prime Minister’s departure, Minister of State
J.R.Jayewardene explained that it was a private visit and that no
one had been invited. “Some people heard of it and they came”, he
said. In the mistaken belief that the question had been inspired
by the failure to invite Leader of the Opposition Mrs. Bandaranaike
to the airport, the Minister added: “The fact that some people did
not come would not be taken amiss by the Prime Minister. He was
very considerate and really did not wish anybody to come . . . It
would be ungentlemanly to disturb a lady at one o’clock in the
2
morning”. The implication was clear: the Prime Minister had left
on a private visit and had been seen off only by his friends who,
though uninvited, had braved a 25-mile journey in the middle of the
night to wish him goodbye. The Chief Justice, who was in the process
of deliberating whether or not Senanayake had committed a corrupt
practice and thereby forfeited the right to hold office, was one of
them.
It was inevitable that Sansoni should face the following
Opposition motion in the House of Representatives; the first substantive motion directed specifically against the conduct of a Judge
Ceylon Observer, 20 February 1966.
Parliamentary Debates (House of Representatives), 23 February
1966, col.2459.
211
in Ceylon:
That this House deplores the action of the Hon.
the Chief Justice in attending an unofficial
gathering, for which no invitations were issued,
at the Katunayake Airport to bid farewell to Hon.
Dudley Senanayake on his departure to the United
States of America for a medical check-up and
other purposes at a time when he was presiding
over the hearing of an election petition challenging Hon.Dudley Senanayake’s election as
Member of Parliament for the electoral district
of Dedigama.-*-
The motion, however, lapsed with the prorogation of Parliament
and was thereafter not seriously pursued. Meanwhile, the election
petition was dismissed, the Chief Justice holding that Senanayake
was not guilty of any of the corrupt or illegal practices alleged
against him.^
Had that been the record of legislative and executive intervention against the judiciary, there would have been no real cause
for concern. Instead, three events, equally traumatic, all within
a period of five years, appear to have set a pattern of conduct
which makes the future appear very bleak.
The Administration of Justice Law 1973 which repealed both
the Court of Appeal Act and the Courts Ordinance under which the
two existing superior courts had been established, fixed the age
limit for the new Supreme Court at 63 years, thus preventing the
absorption into that Court of Judges above that age although their
security of tenure was constitutionally guaranteed. On 1 January
1974, when the new Supreme Court was constituted, the movement of
Judges was as follows:
Sun (date not available).
Ceylon Daily News, 4 June 1966.
212
TABLE 18
RE-CONSTITUTION OF THE
SUPERIOR COURTS IN
1974
1972 Constitution
COURT OF APPEAL
President
T.S.Fernando,Q.C. (OUT)
Judges
V.Sivasupramanium (OUT)
A.L.S.Sirimanne (OUT)
G. T. Samarawickrema, Q . C.
V. Tennekoon,Q.C.
SUPREME COURT
Chief Justice
G.P.A.Silva (Retired)
Judges
A.C.Alles
S.R.Wijetilleke
V.T.Thamotheram
H.Deheragoda
C. B. Walgampaya
J.Pathirana
D.Wimalaratne
T.W.Rajaratnam
D.Q.M.Sirimanne
Comnissioners of
C.V.Udalagama /
T.A.de S.Wijesundera
S.D.M.L.Perera /
I.M.Ismail /
J. G . T. Weer ar atne
SUPREME COURT
Chief Justice
V .Tennekoon,Q .C.
Judges
A.C.Alles
G . T. Samarawickrema, Q. C,
S.R.Wijetilleke
V .T .Thamother am
H.Deheragoda
C.B. Walgampaya
J.Pathirana
D.Wimalaratne
T . W . Raj ar atnam
D.Q.M.Sirimanne
C.V.Udalagama
TAde S-.Wijesundera
S.D.M.L.Perera
I.M. Ismail
J. G . T. Weer ar atne
A . Vythi al ingam
N.Tittewella
S. Sharvananda
S.W.Walpita
W.D.Gunasekera
213
Chief Justice Silva declined to serve on the new Court when
it became known that he would be superseded by a Judge who was five
years junior to him in service; he availed himself of retirement
benefits which are usually available in the public service upon
abolition of office. Of the three Judges who were omitted from the
new Court, T.S.Fernando (68) had served only two years of the fiveyear term for which he had been appointed as President of the Court
of Appeal; V.Sivasupramanium (65) and A.L.S.Sirimanne (64) had
barely completed two years of the five-year term for which each
had been appointed to that Court. By repealing the Court of Appeal
Act, and thereby abolishing the Court of which these three Judges
were members, they were effectively removed from their judicial
offices. By subjecting them to a law which prescribed a lower age
of retirement, they were effectively excluded from re-appointment
to the new Court that was established. The Constitutional Court,
however, agreed with the Attorney-General that the “non-absorption
of these three Judges is consistent with section 122(3) of the
Constitution”.^ That section read as follows:
Unless the National State Assembly otherwise provides,
the term of office of a Judge of the Court of Appeal
shall be as provided by the Court of Appeal Act, No.44
of 1971, and the age of retirement of Judges of the
Supreme Court shall be 63 years.
The Constitutional Court understood this section to mean “that the
term of office of the Judges of the Court of Appeal can be altered
2
by a simple majority of the National State Assembly”. Dealing
thereafter with the salary reduction to which those Judges of the
Court of Appeal who were absorbed into the new Supreme Court would
be subjected to, the Constitutional Court expressed the view that
section 122(5) which provided that:
The salary payable to or the age of retirement of any
such Judge shall not be reduced during his term of
office.
had no application if “the office of Judge of the Court of Appeal
3
has been abolished under the Bill”.
Unlike the Constitutions of most other Commonwealth countries,
the 1972 Constitution did not expressly provide that an office of
judge may not be abolished while there was a permanent holder
In re Administration of Justice Bill (1973) DCC, Vol.l, p.62.
Ibid.
Ibid.
214
thereof.’*’ However, the effect of guaranteeing that a judge was
irremovable during good behaviour and that his age of retirement
was irreducible, was to achieve the same result. The power given
to the legislature to establish a court in place of an existing
one could not, in view of these two guarantees, have included a
power to remove a judge from office. Indeed, it is doubtful
whether, having regard to subsection (5) of section 122 referred
to above, even the reduction of the term of office or the age of
retirement of a judge would have applied to one who was already
in office. Therefore, it would appear that the Constitutional
Court erred in its decision on this provision of the bill. It did
more. By its cursory and cavalier analysis of the bill, it gave
the stamp of judicial authority to this new and simple device
for circumventing constitutional guarantees and securing the
removal of judges otherwise than in the manner provided for by law.
Before long, the three members of the Constitutional Court who had
legitimised the removal of judges by the substitution of one court
for another were themselves to fall victims to this same device.
This happened when the 1978 Constitution provided, in its
transitional provisions that:
All Judges of the Supreme Court and the High Courts
established by the Administration of Justice Law,
No.44 of 1973, holding office on the day inmediately
before the commencement of the Constitution shall,
on the commencement of the Constitution, cease to
hold office.2
3
As has already been noted, eight Judges whose security of tenure
until they reached the prescribed age of retirement was constitutionally guaranteed were, in effect, prematurely removed from
office. Five of them had abandoned the Unofficial Bar, and by
accepting judicial office had forfeited the right of private
practice for life; two had graduated through the Attorney-General’s
Department and reached the bench in the normal course of promotion;
and one, a judicial officer, had been appointed to the Supreme Court,
as many of his colleagues had previously been, at the end of a long
career served in different parts of the country. The movement of
Judges into the two new superior courts, as well as up, down and
out, was as follows:
See, for example, the Constitution of Zimbabwe, Art.86(3)
and the Constitution of Belize, Art.95(2).
Art.163.
Supra, p.196.
215
TABLE 19
RE-CONSTITUTION OF THE
SUPERIOR COURTS IN
1978
1972 Constitution 1978 Constitution
SUPREME COURT
Chief Justice
N.D.M.Samarakone,Q.C. –
Judges
G.T. Samarawickrema, Q.C,
V. T. Thamotheram —–
J.Pathirana (OUT)
D.Wimalaratne
T.W.Rajaratnam (OUT)
C.V.Udalagama (OUT)
T.A.de S.Wijesundera
S.D.M.L.Perera (OUT)
I.M. Ismail
J.G .T. Weeraratne
A.Vythialingam
N.Tittewella (O1
S.Sharvananda
S.W.Walpita (OUT)
W.D.Gunasekera (OUT),
B.S.C.Ratwatte
R.S. Wanasundera
P.Colin Thome
HIGH COURT
J.F.A.Soza
M.M.Abdul Cader
J.R.M.Perera (OUT)
H.A.G.de Silva
C.N.de S.J.Goonewardene (OUT)
L.H.de Alwis
T.J.Rajaratnam (OUT)
K. D. 0. S. M . Sene vi r atne
K. A. P. Ranas inghe
J.S.Abeywardene
A.A.de Silva (OUT)
C.L .T.Moonemalle
S.Selliah
B.E.de Silva
G. R . T. D. Bandaranaike
D.G.Jayalath
T.D.G.de Alwis
B.Senaratne
SUPREME COURT
Chief Justice
N . D. M . S amar akone, Q. C.
Judges
G. T. Samarawickrema ,Q. C,
V .T.Thamotheram
I.M. Ismail
J.G .T. Weeraratne
S. Sharvananda
R . S .Wanasundera
COURT OF APPEAL
D.Wimalaratne
A . Vythial ingam
B.S.C.Ratwatte
P.Colin Thome
J.F.A.Soza
M.M.Abdul Cader
K. A . P. Ranas inghe
K.C.E.de Alwis
J.A.R.V.Perera
H.D.Thambiah
H.Rodrigo
DISTRICT COURT
K.C.E.de Alwis
216
The third event took place shortly before the re-constitution
of the Supreme Court in 1978. On 1 August, .the proceedings of the
Special Presidential Commission of Inquiry3 commenced with an
opening address by Counsel appearing for the State. In the course
of his address, which contained many vitriolic comments oh officials
of the previous administration, he referred to the conduct of
certain Judges. One of them was Justice Pathirana whom he described
as “a political stooge introduced to the Supreme Court bench by Felix
2
Dias”. This address was broadcast on the State radio and published
widely in the national newspapers. The headline on page one of
one newspaper was “POLITICAL STOOGE ON SC BENCH – COUNSEL”; the lead
story of another was captioned: “JUSTICE PATHIRANA ACTED ILLEGALLY:
FELIX’S POLITICAL STOOGE IN SUPREME COURT: COUNSEL”.3 The Supreme
Court took no action either against State Counsel or against the
newspapers;^ nor did the commission investigate and report on any
of the several allegations made against the Judge. When the
Supreme Court was reconstituted a month later, Justice Pathirana
was one of the Judges who was excluded. It had been possible for
the executive to have ignored the constitutional processes and to
have caused a judge whom it did not appear to like or whose judicial
conduct it obviously disapproved of, to be publicly abused in a
forum in which no reply was possible and no defence was available.3
Conditions of Service
Salary
The constitutional guarantee that the salary of a judge will
not be diminished during his tenure of office presupposes that such
salary is, upon an objective assessment, sufficient. As a general
rule, a judge of a superior court has always received a salary
comparable with that of the highest paid state officers. For instance, in 1954, Judges of the Supreme Court, the Attorney-General
and the Secretary to the Treasury all received a salary of Rs.27,000
Infra, p. 226.
Ceylon Daily Mirror, 11 August 1978.
Ibid; Ceylon Daily News, 11 August 1978.
For the Supreme Court’s powers of dealing with contempt,
see p.187.
At the stage of the opening address, the proceedings were
conducted ex parte and none of the persons whose conduct the commission
was invited to investigate were permitted to be present or to be
represented. Later, after evidence had also been recorded, notices
were issued on certain persons . No inquiry was held in respect of
Justice Pathirana.
217
per annum, while the salary attached to the posts of Permanent
Secretary was Rs.21,600-600-24,000.^ The relevant 1959 statistics
were:
TABLE 20
COMPARATIVE SALARY SCALES, 1959
Chief Justice
Attorney-General )
Secretary to the Treasury)
Judge of the Supreme Court
Permanent Secretary
Source: Ceylon Civil List 1959 (Colombo:
Govt.Press, 1959).
and by the end of 1981 they had been increased to:
TABLE 21
COMPARATIVE SALARY SCALES, 1981
Chief Justice
Attorney-General
Judges of the Supreme Court )
President of the Court of Appeal)
Judges of the Court of Appeal)
Solicitor-General )
Secretary to the Cabinet )
Secretaries to Ministries )
Auditor General )
Commissioner of Elections )
Source: Public Administration Circular, No.197
of 29 December 1981.
The judges, in common with other state officers, were until 1977
liable to pay income tax on their salaries and other income. In
that year, the salaries of all state officers, including judges,
were declared to be non-taxable. Other perquisites now enjoyed by
judges include an official car and telephone, and a pension after
retirement.
… Rs.78,000
… Rs.67,000
… Rs.66,000
… Rs.62,400
… Rs.54,000
… Rs.42,000
… Rs.36,000
… Rs.33,000
… Rs.25,800
Ceylon Civil List 1954 (Colombo: Govt.Press, 1954).
218
Judicial salaries, however, are not comparable with the
earnings of lawyers engaged in private practice, and it is
unrealistic to even attempt to do so. The fee of a successful
lawyer in respect of an appeal brief in an ordinary civil appeal
used to be about the same as the monthly salary of a Supreme Court
Judge. In recent years, the gap between the two has assumed
incredible proportions: in 1981, the fees paid in respect of a
single appeal brief by a state corporation was reported to be
Rs.273,000 to senior counsel and Rs.196,000, Rs.183,000 and
Rs.84,000, respectively, to the three junior counsel.’*’
Leave
Judges of superior courts are entitled to the facility of
leave, subject to the same terms and conditions as state officers
2
of comparable rank. An application for leave is made by the
judge concerned directly to the President. When the President
(or Governor-General) was a constitutional Head of State, such
applications were referred to the Prime Minister for advice, and
the latter, in turn, usually consulted the Minister of Justice on
the nature of the advice to be tendered. There appears to have
been only one instance of leave being refused.
By letter dated 27 August 1965, Justice T.S.Fernando
requested the Governor-General to permit him to avail himself of
15 days’ vacation leave commencing on 10 September to be spent
out of the island. The Judge wished to attend a conference of
the World Peace Through Law Center scheduled to be held in Washington to which he had been invited. He had previously attended
conferences of the same organisation held in Athens and in Tokyo.
One week after the date from which he had requested that his
leave be made effective, the Judge was informed by the GovernorGeneral that:
I am advised that it is not possible to recommend
the leave applied for by you.
By letter dated 20 September, addressed to the Governor-General,
the Judge requested that he be informed of the reasons for which
Parliamentary Debates, 3 November 1982, col. 1352. These
fees were paid by the Bank of Ceylon to H.W. Jayewardene,Q.C., and
his three juniors, J.W.Subasinghe, K.N.Choksy and L.C.Seneviratne.
Establishments Code 1971, ChvXII.
Letter dated 16 September 1965.
219
the leave applied for had been refused:
The leave applied for was available. The work of
the Court was in no way to be disrupted; the truth
in regard to the work of the Court is that, at the
moment, for the available work, there are too many
judges in Colombo. I have reason to believe that
the Honourable the Chief Justice had at no time
taken up the position that a grant of the leave
applied for by me will inconvenience the work of
the Court.
He pointed out that:
Article 13(2) of the Universal Declaration of Human
Rights of 1948, which I have reason to hope the
Government of this country does not intend wilfully
to contravene, proclaims that ‘Everyone has the
right to leave any country, including his own, and
to return to his country’. This is the first
occasion on which I have been refused leave, and I
trust Your Excellency will agree that I have a
right, in a country which has only recently authoritatively proclaimed that it intends always to abide
by the Rule of Law, to be informed of the reason or
reasons for the refusal.
No reply having been received at the end of a month, the Judge, on
21 October, invited the Governor-General’s attention to his letter.
Another four weeks were to elapse before the latter replied that:
I have the honour to inform that, lam advised that
it is not considered necessary to disclose the
reasons for the decisions conveyed to you.l
On 22 November, the Judge wrote to the Governor-General reminding
him that he had accepted office on well-understood conditions, and
leave from duties was one of them. He submitted that by depriving
him, without reason, of a right to leave to which he was entitled,
the executive had interfered with the independence of the judiciary.
In this case, the Judge concerned actually availed himself
of leave within the island (for which only the Chief Justice’s
2
approval was necessary) during the relevant period. Therefore,
the refusal of leave could not have been due to “exigencies of
service”. The implication is that the executive, for reasons which
it was not prepared to disclose, had decided that the Judge should
not be permitted, on this occasion at least, to pursue a legitimate
private interest. Thereby, the executive was either “punishing”
the Judge or expressing its displeasure with his conduct, and in so
Letter dated 17 November 1965.
‘2, Private information.
220
doing was interfering with the independence guaranteed by law. The
intervention of the executive appears to be hardly necessary in
respect of trivial matters such as leave which are best left for
the Judges to regulate among themselves.
Extra-Judicial Activity
Acting Head of State
The Ceylon (Office of Governor-General) Letters Patent 1947
provided that:
Whenever the office of Governor-General is vacant, or
the Governor-General is absent from the Island, or is
from any cause prevented from, or incapable of, acting
in the duties of his office, then such other person as
We may appoint under Our Sign Manual and Signet, or if
there is no such person in the Island and capable of
discharging the duties of the administration, then the
person for the time being lawfully performing the functions of Chief Justice shall, during Our pleasure,
administer the Government of the Island.!
Similarly, the 1972 Constitution provided that during any period in
which the office of President was vacant, such other person as the
Prime Minister might nominate, or in the absence of such nomination,
the person for the time being lawfully performing the
functions of the Chief Judge of the highest Appellate
Court
2
shall act in that office. The 1978 Constitution, under which the
President is also Head of the Government and Chairman of the Cabinet,
provides, however, that in his absence either the Prime Minister or
3
the Speaker may, if so required by him, act in that office.
The assumption of office, either as Officer Administering the
Government or as acting President, brought the head of the judiciary
into direct contact with the executive government of the country.
During such acting period, apart from meeting the Prime Minister
regularly, the Chief Justice also received copies of all Cabinet
4
memoranda. Sometimes, an acting spell could prove more eventful.
For instance, in 1952 when Chief Justice Rose was administering the
Government during the absence on leave of Lord Soulbury, the then
Prime Minister fell off his horse and died. Rose was called upon
to choose a new Prime Minister; a task which he avoided when informed
Art.7(1).
S.28(1).
Art.37.
J.L.Fernando, Three Prime Ministers, p.83.
221
that Soulbury would be hurrying back. However, the delay in making
an appointment, and the popular belief that the person whom
Soulbury appointed on his return was not necessarily the person
who would have been found acceptable to the Cabinet and Parliament
five days previously had Rose duly performed his constitutional
duty, exposed the Chief Justice to some political criticism at the
time.^ In 1953, when Chief Justice Rose was next administering the
Government, he was called upon to declare a state of public emergency and legislate by emergency regulations to deal with violence
2
which followed a day of political agitation.
Whether or not a Chief Justice should be afforded the opportunity of acting as Head of State, even for a few days, was a
matter entirely within the discretion of the Prime Minister. For
instance, in 1954, when Soulbury flew to London to be at the bedside of his wife who had been knocked down by a bus, Chief Justice
Rose was himself away in the United Kingdom on leave. Soulbury
suggsted to Prime Minister Kotelawela the names of two Europeans,
3
one of whom might be appointed to act for him. Kotelawela, however,
declined to take any such step and permitted Justice Nagalingam,
acting Chief Justice, to become the first Tamil to occupy Queen’s
House. In 1975, when it became known that President Gopallawa
would be leaving the island on a ten-day visit to Nepal, the Speaker
of the National State Assembly, Stanley Tillekeratne, wrote to the
Prime Minister and argued that, since the National State Assemnbly
was the supreme instrument of state power, “it will be the duty of
the Prime Minister under the Constitution to consider the Speaker
as the first choice when called upon to appoint a person to act for
4
the President”. Mrs.Bandaranaike rejected this unsolicited advice
and decided not to make any nomination herself, thus enabling Chief
Justice Tennekoon to assume that office upon the departure of the
President.^
Ibid., pp.39-44. See also Sir John Kotelawela, An Asian
Prime Minister’s Story (London: Harrap & Co.Ltd, 1956), pp.77-83.
Infra, p.449.
Kotelawela, Asian Prime Minister, pp. 115-16.
Letter dated 14 February 1975 from the Speaker of the National
State Assembly to the Prime Minister.
Letters dated 17 February 1975 from the Attorney-General to
the Prime Minister and from the Secretary for Justice to the Secretary to the Prime Minister.
222
Thus, ordinarily, a decision by the Prime Minister to send
the Head of State on a mission abroad or to grant him leave from
his duties, together with a further decision not to make an acting
appointment during the period of such absence or leave, were
necessary before a Chief Justice could have assumed the highest
office in the land. Of the eleven heads of the judiciary who have
functioned since Independence, only four were afforded that privilege by the executive.’*’
Commissions of Inquiry
The Commissions of Inquiry Act
The Commissions of Inquiry Act, No.17 of 1948, empowered the
Governor-General to appoint a commission consisting of one or more
members to inquire into and report on the administration of any
department of government or of any public or local authority or
institution, the conduct of any member of the public service, or
any matter in respect of which an inquiry would, in his opinion,
2
be in the public safety or welfare. It had been the general preIndependence practice to request Judges of the Supreme Court to
serve on such commissions. In 1950, two commissions were appointed
to inquire into the procedure, practice and administration of the
civil and criminal courts of Ceylon and to report on necessary
reforms, including amendments to the Civil Procedure Code and the
3
Criminal Procedure Code, respectively. The former included two
Judges, Justice Nagalingam (Chairman) and Justice Gratiaen; the
latter consisted only of two Judges, Justice Gratiaen (Chairman)
and Justice Pulle. Two years later, another commission was appointed under the chairmanship of Chief Justice Rose to examine and
report on the question of the re-constitution of the Supreme Court.
All three commissions dealt with technical aspects of the law.
In 1956, widespread rioting took place in Gal Oya, a colonist
town, following the introduction of a bill designed to make Sinhala
the one official language of the country. As a newspaper described
it at that time, it was a major disturbance – a disturbance which
resulted in the loss of more than twenty lives, which involved
several communities, and which was preceded, accompanied and followed
Sir Arthur Wijewardene, Sir Alan Rose, H.N.G.Fernando and
V.Tennekoon.
S.2.
S.P.XXIII-1955 and S.P.VI-1953 respectively.
223
by the bitterest of communal controversies.’*’ The Government wished
to ascertain the cause of the riot so that it may take appropriate
remedial measures. Prime Minister Bandaranaike invited Justice T.S.
Fernando to be the one-man commission of inquiry for this purpose.
The Judge accepted this invitation, but changed his mind shortly
thereafter when the Chief Justice unearthed a minute made by the
Supreme Court Judges following the publication of the report of the
Bracegirdle Coimission nearly two decades previously. That commission had been headed by the then Chief Justice Sir Sydney Abrahams,
and consequent to severe public criticism of its report, the Judges
had decided that “they do not wish to undertake inquiries in which
there may be political implications and which may expose them to
criticism”.^
Two years later, in December 1958, following allegations in
the House of Representatives of an attempted coup d’etat, Prime
Minister Bandaranaike visited Hulftsdorp and addressed the Judges
of the Supreme Court in an attempt to persuade one of them to serve
as chairman of a commission of inquiry which he intended to constitute for the purpose of inquiring into and reporting on these
3
allegations. The Judges requested that the Commissions of Inquiry
Act be amended by the inclusion of a new provision that:
Any person who makes any allegation of incompetence,
or of partiality, bad faith or other misconduct
against a Commission or any member or former member
thereof, or who in any other manner brings or attempts
to bring into contempt or disrespect such Commission
or member or former member thereof, whether before
or after such Commission is functus officio, shall be
guilty of the offence of contempt or disrespect of the
authority of such Commission.
They also asked that where a commission consisted solely of a Judge
or Judges of the Supreme Court, such commission shall, in addition,
have “all the rights, powers and privileges, and the immunities of
a Judge of the Supreme Court” so that:
Any such offence of contempt against or in disrespect
of the authority of a Commission . . . may be punished
under section 47 of the Courts Ordinance either by
such Commission or by the Supreme Court or a Judge
thereof as though it were an offence of contempt committed against or in disrespect of the authority of that
Court.
Morning Times, 18 September 1956.
Quoted by S. W.R.D. Bandar anaike and reported in the Times of
Ceylon, 7 July 1956.
Times of Ceylon, 7 December 1958; Ceylon Daily News, 12 December 1958.
224
A substantial section of the government parliamentary group, led
by an influential member of the Cabinet, insisted that only
criticism “made without sufficient reason” should be punishable
as contempt. This was not acceptable to the Judges, and they,
therefore, declined to serve on the commission.^
On 28 June 1963, the Governor-General appointed a commission
of inquiry consisting of Justice T.S.Fernando (Chairman), Justice
Adel Younis, Judge of the Court of Cassation, United Arab Republic,
and Justice G.C.Mills-Odoi, Judge of the Court of Appeal, Ghana,
to inquire into and report on certain matters connected with the
2
assassination of Prime Minister Bandaranaike. These included
matters such as whether any persons other than those found guilty
by the Supreme Court were concerned in the conspiracy; whether any
organised body of persons was involved in the plot, and if so, the
underlying objectives or motives of such body; and whether any
police officer or other person hampered the investigation or did
any act to screen anyone involved. Justice Fernando had apparently
taken the responsibility himself of deciding whether or not to
accept the invitation of the Government to head this commission.
He had been the presiding judge at the trial of the persons accused
of the murder of Bandaranaike, and perhaps felt obliged to lend his
authority to the commission and to share his particular knowledge
of the subject with the two other foreign commissioners in the
investigation of the alleged cover-up which had, no doubt, created
a crisis of confidence in the country. His colleagues on the
Supreme Court, who had not been consulted by him on this matter,
met to discuss its implications. They decided that, in future,
if a direct invitation by the Government was made to a Judge of the
Supreme Court to serve on a commission, the matter should be reported
to the Chief Justice who would sumnon a meeting of all the Judges
3
to consider whether or not that invitation should be accepted.
Times of Ceylon, 15 December 1958 and 2 January 1959; Ceylon
Daily News, 19 December 1958.
Bandaranaike had been shot in the verandah of his own home on
25 September 1959; he died on the following day. Plaint had been filed
in the Magistrate’s Court against seven persons, five of whan later
stood their trial before Justice Fernando and a special Englishspeaking jury. In May 1961, two of the accused were found guilty of
conspiring to commit the murder and one of committing the murder; two
were acquitted.
Ceylon Daily News, 17 August 1963.
225
It was thirteen years later that a government next approached
a Judge of the Supreme Court to serve on a commission of inquiry.
Justice Wimalaratne was appointed on 23 November 1976 to inquire
into and report on certain events that had taken place on the university campus at Peradeniya which had culminated in the shooting by
the police of a university student. The Prime Minister’s assassination and the shooting of the undergraduate were both explosive
situations, each of which had created a crisis of confidence. In
each case, only the finding of a judge of irreproachable integrity
could have diffused the situation. Both reports were accepted by
the public, though not wothout some heartburning by the governments
concerned.^
Delimitation Commissions
The 1946 Constitution required the Governor-General to estaba Delimitation Commission within one year after the completion of
2
every general census. Such a commission was to consist of three
persons who “are not actively engaged in politics”. It was the
function of a Delimitation Commission to divide each province of
the island into a number of electoral districts. In 1959, Prime
Minister Bandaranaike invited a senior Puisne Justice to function
as chairman of a Delimitation Commission which was then required to
be established. He argued that the report of the commission would
be final and binding on the Governor-General. The Judges discussed
this matter, but decided by a majority vote, on the basis of the
3
Bracegirdle Minute, against accepting the invitation. A similar
invitation was extended in 1974 to Justice Tittewella, who accepted
without any prior consultation with his colleagues. The delimitation of electorates is essentially a political matter, and when
existing boundaries are varied in order to create new electorates,
some degree of political protest is inevitable. The reaction to the
publication in October 1976, barely six months before the scheduled
general election, of the commission’s report was, therefore, not
that of general acceptance. It was perhaps not entirely coincidental
that, following the general election, Tittewella was one of the
Judges excluded from the Supreme Court when that Court was reconstituted in 1978.
S.P.III-1965 and S.P.1-1977 respectively. The former report
had been handed over on 30 April 1964, but was published, after
insistent public demand, only on 20 March 1965.
S.40. See also s.77 of the 1972 Constitution.
Times of Ceylon, 26 January 1959.
226
Special Presidential Commissions of Inquiry Law.
The Special Presidential Commissions of Inquiry Law, No. 7 of
1978, empowered the President to appoint a commission consisting of
judges of a court not below a District Court, whenever it appeared
to him to be necessary that an inquiry should be held and information obtained as to the administration of any public body or local
authority, the administration of any law or the administration of
justice, the conduct of any public officer,’*’ or any matter in respect
of which an inquiry would, in his opinion, be in the public interest
or be in the interest of public safety or welfare. The basic
difference between a commission appointed under the Commissions of
Inquiry Act and one appointed under this Law is that the latter is
required to find and report to the President whether “any person
has been guilty of any act of political victimisation, misuse or
abuse of power, corruption or any fraudulent act”, and whether
2
such person should be made subject to civic disability. Any such
finding or report is final and conclusive, and may not be called in
3
question in any court or tribunal by way of writ or otherwise. A
special presidential commission of inquiry has many of the attributes
of a court except the power to punish; it being left to Parliament
to decide, on the recommendation of the Cabinet, whether or not to
4
impose civic disability on a person found guilty by a commission.
In introducing the Special Presidential Commissions of Inquiry
Bill in the National State Assembly, Prime Minister Jayewardene
explained:
We want this law to be on the statute book for any
government to use it against any previous government, against any men in the government, against any
women in the government who need to be examined and
dealt with.
Public officer includes the Prime Minister, a Minister, Member of the National State Assembly, a state officer, and a chairman,
director or employee of any public body. A public body includes a
ministry or department of government, a public corporation, commission or board, and a registered co-operative society.
S.9(1). Civic disability means disqualification from being
an elector or a candidate at any election of the President of the
Republic or of a Member of the National State Assembly or of any
local authority; and from holding office or from being employed in
the public sector.
S.9(2).
1978 Constitution, Art.81.
National State Assembly Debates, 1 February 1978, col.872.
227
Justifying the penalty clause, he said:
We are saying that such persons if found guilty
have no right to exercise their civic rights or
to sit in this House, that they have no right to
be in a government in the future.
Therefore, a special presidential commission of inquiry would be
called upon to perform a political function; that of inquiring
into the administration of a previous government and of deciding
whether the political leaders of that government should be removed
from political life, a task hitherto performed by the electorate.
A Supreme Court Judge who agreed to serve on such a commission
would immediately have become embroiled in political controversy.
In March 1978, President Jayewardene announced the appointment of a commission for the purpose of inquiring into the administration of his predecessor in office as Prime Minister, Mrs.
Bandaranaike. The commission consisted of Justice Weeraratne and
Justice Sharvananda, two members of the:ZL-member Supreme Court, and
K.C.E.de Alwis, a District Judge. One of the first acts of the
commission was to direct that the passports of a number of persons
who had served the previous government be impounded. The commission
commenced its public sittings on 1 August 1978, by permitting a
lawyer member of the working committee of the ruling United National
Party to address the commission. He had been retained by the Govem2
ment to present the Government’s case before the commission. His
eight-day address was described by Mrs.Bandaranaike as “an orgy of
Ibid. Jayewardene also explained that: “This Bill became
necessary, firstly, because our present Commissions of Inquiry Act
does not make provision for certain types of matters to be inquired
into, specific matters; secondly, because it provides no punishment
flowing from the decisions of the commission; and thirdly, because
it does not give enough power to the commission to admit certain
types of evidence” : Ibid., col.809.
Prime Minister Premadasa stated in Parliament that the
Government had retained A.C.de Zoysa to appear for the Government.
He said: “Mr.Bunty Zoysa is a member of our committee and also a
member of our party. He is one who has gone with us all over the
country. He knows what we said when we went all over the country.
But it is not he who will give the judgment. He will only appear
for us, for the State” : Parliamentary Debates, 20 November 1978.
228
character assassination”.’*’ Nevertheless, the commission allowed
it to be recorded by the State-controlled radio for broadcasting
2
to the nation at peak hour each day. Thereafter, for the next
four months, the evidence of witnesses was led by Counsel for the
State at ex parte proceedings, interspersed with political comments
3
and prejudicial remarks. Notices were eventually served on a
number of persons, together with a transcript of the evidence led
against them, and they were required to file statements in defence
and then appear for inquiry. By the end of 1981, the commission
had conducted only three inquiries, and at the conclusion of each
had found the person noticed guilty: a former Permanent Secretary,
of misuse and/or abuse of powera former Minister, of corruption
and abuse of power; and the former Prime Minister, Mr s. Bandar anaike,
of misuse and/or abuse of power.^ On each of them, Parliament by
resolution imposed civic disability for the maximum period of seven
years; additionally, Mrs.Bandaranaike was also expelled from Parlia6
ment.
The participation of two Supreme Court Judges in this commission could not have helped to enhance the independence of that
Court. Apart from the special preference shown by the executive
to all three Judges and their rapid promotion in the course of the
proceedings,^ the commissioners aroused bitter criticism from
g
counsel who appeared before them, and from the opposition benches
9
in Parliament, for their disregard of the procedure hitherto
observed by comnissions of inquiry. It was alleged, not without
Statement made by Mrs.Sirima R.D.Bandaranaike, Third Interim
Report of the Special Presidential Commission of Inquiry (Colombo:
Dept, of Govt. Printing, 1980), Appendix A, p,158.
Ibid.
Ibid.
Second Interim Report of the Special Presidential Commission
of Inquiry (Colombo: Dept, of Govt. Printing, 1979).
Second Interim Report, op.cit.
Parliamentary Debates, 8 January 1980, 11 January 1980, and
16 October 1980. Of the three persons, the first faced a full inquiry,
the second did not choose to cross-examine any witnesses, and the
third did not participate in the inquiry at all.
Infra, p.196.
See Opening and Closing Addresses of S.Nadesan, Q.C., senior
counsel for Nihal Jayawickrama, Proceedings of the Special Presidential Commission of Inquiry, January-July 1979.
Parliamentary Debates, 20 November 1978.
229
basis, that the commission had abdicated its functions of investigation and inquiry to counsel retained by the State, and allowed
its platform to be used for the purpose of conducting political
propaganda. Before it could complete its task, the commission had
become a major political issue, and every opposition party was
committed to its abolition and the restoration of the civic rights
of the persons against whom it had reported.
Should a Judge undertake the task of investigating and ascertaining facts for the information of the executive ? In 1923, in
Australia, Sir William Irvine, Chief Justice of Victoria, wrote
thus to the Attorney-General of that State in response to a request
that a Judge be made available to act as a Royal Commissioner to
inquire into charges made in connection with the Warrnambool breakwater :
The duty of His Majesty’s Judges is to hear and
determine issues of fact and of law arising between the King and the subject, or between subject
and subject, presented in a form enabling judgment
to be passed upon them, and when passed to be
enforced by process of law. There begins and ends
the function of the judiciary. It is mainly due
to the fact that, in modem times, at least, the
Judges of all British Communities have, except
in rare cases, confined themselves to this function,
that they have attained, and still retain, the
confidence of the people.*
This letter, which has come to be known as the Irvine Memorandum,
2
has continued to be invoked in that State. Fifty years later,
Sir Garfield Barwick, Chief Justice of Australia, gave expression
to similar sentiments when he said:
Governments continue to request the services of
judges to act as Royal Commissioners or as
chairman in inquiries of diverse subject matter.
I quite understand that Governments realise that
the community as a whole recognises the integrity
of the judiciary and that the citizen is likely
to feel confident of the correctness and honesty
of a judge’s conclusions. Thus, the appointment
of a judge as a commissioner or chairman is politically attractive. But many of the matters
into which commissioners or chairman are asked
Sir Robert Mclnerney has quoted the text of this letter in
“The Appointment of Judges to Cormiissions of Inquiry and Other Extra
Judicial Activities”, Australian Law Journal, vol.52, p.540 at 541.
Ibid., at 549.
230
to inquire are completely divorced from the law
and all too frequently involve the formation of
opinions on matters which are truly political in
character. To require a judge to express a view
on such questions is to my mind to do a disservice to the judiciary itself.
This attitude has not been peculiar to Australia either. In 1973,
Britain’s Lord Chancellor Hail sham warned that the independence of
the judiciary was being endangered by increasing demands for tribunals
of inquiry over which Judges were expected to preside. He added:
You cannot keep independent Judges in Britain if
you constantly expose them to ordeal by public
criticism, which is not only inevitable but legitimate and proper whenever you ask them to preside
over tribunals of inquiry.
Four years later, he asked how it could be supposed that the reports
produced by a Judge presiding over an inquiry “will not affect a
Judge’ s reputation for impartiality, or his chances of appointment
or promotion if he offended some powerful minority, influential
3
Minister, or popular prejudice or pressure group ?” Even in the
United States, the policy now adopted is that members of the Supreme
Court do not serve on committees or perform other services not
4
having a direct relationship to the work of the Court.
In Sri Lanka, it is unfortunate that the Special Presidential
Commissions of Inquiry Law specifically included Judges of the Supreme Court in that category of persons from whom the President was
authorised to choose his commissioners,^ and that the 1978 Constitution empowers the President to require a Judge of the Supreme
Court to “perform or discharge any other appropriate duties or
functions under any other written law”. Despite these enabling
provisions, it would have been preferable if the Supreme Court had
insisted that its members scrupulously observe at least the minimum
standards laid down in the Bracegirdle Minute, however tempted seme
of them might have been to enjoy the benefits of political patronage
by making themselves useful to the executive branch of government.
Sir Garfield Barwick, “The Use of Judges to Chair Commissions
of Inquiry and Tribunals”: a paper submitted to the Meeting of
Commonwealth Chief Justices, Canberra, 1980.
Daily Telegraph, 18 July 1973, quoted by Mclnemey, op.cit.
Times, 25 May 1978, quoted by Mclnemey, op.cit.
Mclnemey, op.cit., explains that Warren CJ agreed to serve
as chairman of the Kennedy assassination commission as a result of a
request from President Johnson put to him in such terms that the
Chief Justice felt himself unable to decline.
S.2. 6. Art.110(1).
231
The Constitutional Court
The Constitutional Court established under the 1972 Constitution was required to exercise a jurisdiction not previously
exercised by the judiciary in Sri Lanka, namely, the review of
bills. In the absence of the ex post facto review of legislation,
which was expressly prohibited by that Constitution, the Constitutional Court offered the only filtering process by which proposed
legislation which infringed fundamental rights could be identified
and then either rectified or excluded. Therefore, it was crucial
that the Constitutional Court should not only be competent to
perform that task, but that it should also be independent both of
the executive and of the legislature. At its conception, it was
intended to be “nothing but a court of the highest status in the
land”.’*’ Accordingly, it was vested with many of the attributes of
such a court: security of tenure for its members, finality for its
2
determinations, and powers of contempt to maintain its authority.
But in the first six months of its existence, this novel institution
was subjected to such interference both by the executive and by the
legislature, and treated as if it were but a parliamentary committee,
that eventually, in the form in which it emerged, it offered little
3
hope of being an effective protector of fundamental rights. The
measure of success, if any, that attended the technique of anticipatory review embodied in the Constitutional Court is examined in
4
a later chapter. At this stage, it is proposed to identify the
factors and the circumstances that stultified its progress and
impaired its credibility, despite the constitutional provisions which
sought to facilitate its work and guarantee its independence.
Colvin R.de Silva, Minister of Constitutional Affairs,
National State Assembly Debates, 22 June 1972, col.101. But see
view of party and Cabinet colleague, N.M.Perera, that it is not
“an independent court having independent rights”, but “an advisory
body only to give advice to the Speaker”, National State Assembly
Debates, 12 February 1972, col.1467.
Supra, p.124.
The Constitutional Court was, for instance, quite different
in character and composition from the Senate Legal Committee which
in Zimbabwe performs the same function. That committee consists of
members who have held high judicial office but who serve in that
comnittee in their capacity as Senators; it is, in fact, a parliamentary committee and not a court. See Constitution of Zimbabwe,
Arts. 36, 37.
Infra, Ch.V.
232
Location
For the greater part of this century, Hulftsdorp has been the
home of the superior courts of Sri Lanka, and as recently as 1971
when the Court of Appeal replaced the Judicial Committee of the
Privy Council, it was in Hulftsdorp that that Court sat. The Government decided, however, that the Constitutional Court should sit in
the premises of the National State Assembly, and a committee room
which the government parliamentary group used for its meetings was
cleared and re-arranged for this purpose.^ Parliamentary staff and
equipment were provided on loan; even the Clerk to the Assembly
doubled up as Registrar of the Court. One floor above the chamber
of the National State Assembly, the Constitutional Court would meet
to determine the propriety of what was proposed to be done below.
For the first time, the judiciary was being asked to function from
premises which were entirely under the control of the legislature;
a move which was perhaps symbolic of the new relationship between
the supreme instrument of state power of the Republic and one of
its agencies, now exercising “not a separate power, but a part of
2
the power of the National State Assembly”.
But whatever the philosophic justification for this unprecedented move may have been, it was a singularly unfortunate choice
of location. At first, the Legislature looked upon the Court benignly
but with a proprietorial eye, and hoped that it would provide
3
guidance in its deliberations. When, four days after it had first
assembled, the Court indicated that it may have to deal with an
4
errant Member of Parliament for contempt, the first rumblings began
to be heard.^ When, not very long thereafter, the Legislature began
Colvin R.de Silva, National State Assembly Debates, 12 December 1972, col.1526.
T.S.Fernando, at the inaugural session of the Court of Appeal,
Ceylon Daily News, 10 March 1972.
See, for instance, Colvin R.de Silva, National State Assembly
Debates, 22 June 1972, cols.105-111.
Dudley Senanayake, UNP MP for Dedigama, in respect of a statement reported to have been made by him at a political meeting that
“In the event of the Press Bill being implemented, the masses will
rise against this undemocratic piece of legislation” : Ceylon Daily
News, 25 November 1972.
For instance, J.R.Jayewardene, speaking on the votes of the
National State Assenbly, pointed out that when the Court was in
session, that part of the Assenbly building belonged to the Court,
not to the Speaker. “The Court can send anyone to jail. I don’t like
that” : Ceylon Daily News, 5 December 1972.
233
to be irritated by the tenor of the arguments presented by counsel
as well as by the asides of the Court, the ground was being prepared
for a confrontation. Finally, when the Assembly broke out in open
conflict with the Court over the interpretation of the Constitution,
and decided to assert what it mistakenly believed was its “sovereignty”, the confrontation was complete.^ In its view, when the
Court failed to give its decision on an impugned bill within fourteen
days of a reference, the Court ceased to exist. A Government member
2
argued that “we can throw the judges out”, while an Opposition
3
member urged the Assembly to “find a way of closing that up”. The
Minister of Constitutional Affairs believed that “If you tell them
to leave this room, which I beg of you not to, the three of them can
go and continue purporting to be a court in the house of any of the
4
three of them”, while the Deputy Minister of Planning asked the
Speaker why he had failed to deal with the “unlawful group of men
who have entered a room in this building and are continuing to occupy
it ?”5
Remuneration
While the Constitution contemplated the payment of “salaries”
to Judges of the Court of Appeal and of the Supreme Court, it required
the National State Assembly to fix the “remuneration” to be paid to g
the members of the Constitutional Court. A section of the Assembly
understood by this difference in terminology that what was intended
was payment for each sitting of the Courta practice not uncommon
in the country as far as industrial courts and such other inferior
tribunals were concerned. The Government rejected this contention
and, on 22 June 1972, secured the adoption of a resolution in terms
of which members of the Constitutional Court would be remunerated on
the same basis as Judges of the Supreme Court. But if a member of
the Constitutional Court was already a Judge of the Supreme Court,
he would receive no further payment; and if he was a retired public
officer or judge, he would be treated as a re-employed state pensioner
and would receive only the difference between his pension and the
g
salary of a Supreme Court Judge. Thus, a non-judge or a pensioner
Infra.
Mrs.V.Gunewardene, National State Assembly Debates, 12 December 1972, col.1519.
B.Neminathan, ibid., 4. Ibid., col.1518.
R.D.Senanayake, ibid.,col.1389. 6. S.57.
See, for instance, R.Premadasa, National State Assembly
Debates, 22 June 1972, col.90. 8. Ibid., col.84.
234
who was appointed to the Court would be precluded from undertaking
any other work but would receive a monthly salary of Rs.3000 during
his four-year panel membership, while a Judge of the Supreme Court
who was called upon to exercise the jurisdiction vested in the
Constitutional Court in addition to his usual duties, would receive
no additional remuneration for his services. A Judge, therefore,
could hardly be blamed if, as actually happened, he regarded his
work on the Constitutional Court as ancillary to the duties of his
sustantive office. The payment of a salary to one member of the
Court and the denial of any remuneration to another who was required
to perform the same services, was inconsistent with the principle
that a Judge should receive at regular intervals remuneration for
his services at a rate which is commensurate with his status and not
diminished during his continuance in office.^
Composition
In the Constituent Assembly, the Minister of Constitutional
Affairs, in explaining the concept of a Constitutional Court, had
indicated quite clearly his view that persons other than Judges
2
should serve as members of this Court. A different view was, however, expressed by the Permanent Secretary to the Ministry of Justice,
in a confidential minute addressed to the Prime Minister a few days
before the Constitution came into force:
This institution has been severely criticised during the
past one and a half years on the ground that it could
well turn out to be a ‘stooge court1 of the government
in power. To allay any such fear or suspicion and criticism of that type, I would suggest that the persons for
appointment to the Constitutional Court be chosen, as
far as possible, from among those already serving as
Judges of the Court of Appeal and the Supreme Court.
Should the Constitutional Court consist of Judges or of political
scientists and constitutional lawyers ? The Prime Minister sought
to effect a compromise between these two conflicting views: T.S.
4
Fernando,Q.C., President of the Court of Appeal; V.Siva Supramanium,
Draft Principles on the Independence of the Judiciary submitted for the consideration of the UN Sub-Commission on the Protection of Minorities and the Prevention of Discrimination, (1982)
8 CLB 715.
Supra, p.215.
Minute dated 15 May 1972. On 22 June 1972, a UNP member urged
that the Judges of the Court of Appeal be appointed to this Court:
N.Wimalasena, National State Assembly Debates, cols.91-94.
When the 1972 Constitution was being drafted, T.S.Fernando,Q.C.
(then in retirement) together with S.Nadesan,Q.C., made represent-
235
Judge of the Court of Appeal; and H.Deheragoda, Judge of the Supreme
Court,^ along with two nominees of the Minister of Constitutional
Affairs: K.D.de Silva, who had retired from the Supreme Court as
2
far back as 1960; and J.A.L.Cooray, lecturer in constitutional law.
From this curious mixture of judges, ex-judges and non-judges,
and from the fact that the Constitutional Court had no permanent
head, nor any clearly defined principles for its constitution or
procedure, there arose a number of operational problems which, in
a very short time, led to a serious constitutional crisis.
Chairman
On being invited to serve on the Constitutional Court in
addition to his other duties, the President of the Court of Appeal
informed the Prime Minister that, while he had no objection to being
a member of that Court, he held the view that a person holding office
in one of the superior courts of the country should not in any way
compromise the dignity of that office if and when he was called upon
to accept or perform other assignments. Accordingly, it was his
view that whenever a member who was a sitting Judge was chosen to
serve on the Constitutional Court, that Judge should function as
the chairman. He felt that it would help the members of the Court
considerably in formulating an appropriate rule on that matter if,
in making the first appointments, the President of the Republic
would place the sitting Judges ahead of the others, instead of foll3
owing the alphabetical order. The Prime Minister acceded to this
request, and the formal gazette notification announced the appointments in the following order:
Thusew Samuel Fernando,Esquire, President of the Court of Appeal;
Veeravagu Siva Supramaniam, Esquire, Judge of the Court of
Appeal;
Ekanayake Rajapakse Kodippili Dissanayake Mudiyanseralahamillage
Hector Deheragoda, Esquire, Puisne Justice;
Kaludura Dhanrnikasiri De Silva, Esquire;
Joseph Anthony Leopold Cooray, Esquire.
ations to the Cabinet against the concept of a constitutional court
and argued, inter alia, that it would be impractical to expect a
court to determine a question relating to the validity of a bill
within a period of fourteen days.
Deheragoda was a comparatively junior judge whose appointment
was probably due to his familiarity with the statute law, acquired in
his capacity as an assistant to the commissioner for the revision of
the legislative enactments of Ceylon.
De Silva was 74 years old.
Letter dated 20 June 1972 from the Secretary for Justice to
the Secretary to the Prime Minister.
236
On 24 June 1972, the members of the Constitutional Court took their
oaths of office before the President in the same order.^
While the Constitution required the chairman to be chosen in
accordance with rules of court, it also stated quite explicitly that
such rules should be made by the Constitutional Court, published in
the gazette whereupon they came into operation, and then brought
before the National State Assembly for approval. However, on 24 June
at President’s House, before the oaths were administered to the
members of the Court, each of them was presented by the Registrar
(who himself had not then taken his oath) with a cyclostyled copy
2
of draft rules complete with forms of application and warrants. In
respect of the chairmanship of the Court, the text of the relevant
draft rule was as follows:
Rule 12. When the Constitutional Court assembles on the
date fixed for the commencement of the proceedings, the
members of the Court shall by agreement decide which of
them shall officiate as the Chairman of the Court, but
where a retired Judicial Officer is a member of the Court,
he shall officiate as Chairman. If a Court consists of
more than one retired Judicial Officer, the most senior
among them shall officiate as Chairman. If the majority
of the members of the Court do not agree in the choosing
of the Chairman, the member of the Court whose name was
drawn first shall officiate as Chairman.
These draft rules had been prepared without any indications or guidelines being provided by the Court. On the Registrar being told by
one member of the Court that rules should not have been thus framed
by him, “I received no intelligible reply except that he was only
3
trying to be helpful”. It is improbable that the Registrar, who was
also the Clerk to the National State Assembly, would have had either
the time or the inclination to have prepared this set of draft rules
by himself; it is more likely that they were prepared by the Ministry
of Constitutional Affairs. Indeed, the reference in the draft rule
reproduced above to “retired Judicial Officers” suggested the
absence of serving Judges on the Constitutional Court; the Ministry
of Constitutional Affairs had consistently opposed the appointment
of serving Judges.
See Gazette Extraordinary No. 13/11, 28 June 1972, Notification
No.46/6 of 1972.
Letter dated 7 September 1972 from T.S.Fernando to the Minister of Justice.
Ibid.
237
Within three weeks of their appointment, the members of the
Constitutional Court had met and drafted all the necessary rules
except one.”*” The sole exception related to the choosing of the
chairman. On this matter, a sharp difference of opinion existed.
The three serving Judges wanted the rule to be so framed that,
whenever a Judge of a superior court was one of the three members
chosen by lot to determine or advise on any matter referred to the
Gburt, such Judge (or if more than one such Judge were chosen, the
senior of such Judges) shall be the chairman. The other two members
wanted the rule to be framed to enable the three members chosen by
lot to decide by majority vote who shall be chairman. The three
Judges did not wish at that stage to make this rule by a majority
vote as they were entitled to; they preferred, if possible, to make
it without dissent. For instance, if there was some seniority
implicit in the order of their appointment, they felt it would be
possible to provide that the senior member among the three chosen
by lot shall be chairman. Accordingly, they addressed the President
and inquired whether or not seniority as among the five members was
2
as indicated in the gazette notification. The other two members
also wrote to the President to “place the matter before Your Excellency for consideration and decision”.
As required by the Constitution, the President referred these
two communications to the Prime Minister for advice. On 1 August
1972, the Secretary to the Prime Minister sought the advice of the
Secretary for Justice. The simple reply ought to have been: (1)
that seniority was implicit in the order of appointment of members,
and (2) that it was not within the President’s powers to take a
“decision” on the disputed rule. Such a reply would have enabled
the Constitutional Court to have proceeded to make its own rule.
But no such reply was sent. Instead, the Minister of Justice began
discussions with the members of the court with a view to effecting
a compromise. He suggested a rule which would provide that among
the five persons appointed to the first Constitutional Court, seniority should be determined according to the date of the first
Minute of 30 January 1973 from the Secretary for Justice to
the Prime Minister.
Letter dated 19 July 1972 from T.S.Fernando, V.Siva Supramaniam and H.Deheragoda to the President of the Republic.
Letter dated 19 July 1972 from K.D.de Silva and J.A.L.Cooray
to the President of the Republic.
238
appointment of each to the Supreme Court or any other Court with a
parallel or higher jurisdiction.^ This compromise was acceptable
to the three Judges, but was rejected by the other two members, one
of whom was not, and had never been, a Judge in any Court.
Thereupon, the Minister of Justice forwarded all the relevant
papers to his colleague, the Minister of Constitutional Affairs.
The latter then sought to participate in the rule-making process by
adding the weight of his authority in support of the minority view,
which was “in keeping with the outlook and background of the Const2
itution”. He rejected the claim that the gazette notification, in
the making of which he had not been consulted, was intended to
indicate seniority:
There can be no doubt whatsoever that all members of
the Constitutional Court are by the Constitution
regarded as equals and that, apart from any convention
or courtesies that may grow amongst them, no member
of the Constitutional Court is entitled to any precedence over the others qua members of the Constitutional Court.
In any event, he considered the order in which the names appeared
in the gazette to be “a very tenuous basis for a contention of this
nature, if indeed it can provide a basis at all”. He added:
I do not of course know whether there was any understanding between these gentlemen and the Prime
Minister or the President; but I wish to state
certain facts which have a decisive bearing on the
question whether the Prime Minister comes into the
picture in regard to this contention. It was I who
contacted Messrs J.A.L.Cooray and K.D.de Silva on
behalf of the Prime Minister to sound out their
willingness to serve in the Constitutional Court.
At no time either before I contacted Messrs Cooray
and De Silva or after I reported their willingness,
did the Prime Minister tell me that she even
contemplated the condition referred to in respect
of the appointments she was considering. Nobody
can persuade me that she would have failed to
mention such a matter to me because, first of all,
she would have known the need to communicate such
condition to Messrs Cooray and De Silva before
their appointment, and secondly, because it is hard
to believe that the Prime Minister would have
contemplated any arrangement which she was not
Minutes of 21 August 1972 from the Secretary for Justice to
the Minister of Justice, and of 25 September 1972 from the Minister
of Justice to the Secretary to the Prime Minister.
Letter dated 30 August 1972 from the Minister of Constitutional Affairs to the Minister of Justice.
Ibid.
239
empowered by the Constitution to make, After all,
the express provision of the Constitution, by
section 60, is:
‘The Chairman of a Constitutional
Court for any occasion shall be
chosen in accordance with the rules
of the Constitutional Court.’
These rules had to be made by the Constitutional
Court itself under the provisons of section 59 of
the Constitution.-*■
It is, no doubt, the knowledge that the Minister held this view
that prompted K.D.de Silva to make the remark at one of the meetings
of the Court that if the rule was framed as suggested by the three
Judges, they “could be sure that it will not be approved by the
2
National State Assembly”.
On 4 September 1972, the Minister of Justice forwarded this
“secret” letter from the Minister of Constitutional Affairs to the
President of the Court of Appeal. In doing so, he also suggested
a new compromise formula:
I think upon a consideration of all the circumstances, it might be best if you could discuss
with your colleagues the question of formulating
a rule so that the Chairman of the Constitutional
Court could be selected by lot or on a principle
of rotation in such a manner that none of the
members of the Court would be excluded from
functioning as Chairman.^
While the Ministers continued to offer unsolicited suggestions on
how the relevant rule ought to be formulated, the question which
the three Judges had raised with the President still remained
unanswered. The appointments had been made by the latter after
the receipt of advice from the constitutional authority. That
authority presumably advised also the order to be observed in
notifying the appointments. The order had not followed the familiar
alphabetical pattern. The change could not have been fortuitous.
The three Judges wished to know whether it signified anything.
The answer to that question, the three Judges believed, would help
them to perform their constitutional task of formulating an appropriate rule. But from the attitude of the Ministers, as evidenced
from their communications, the three Judges appeared to have realised
Ibid.
Letter dated 7 September 1972 from T.S.Fernando to the Minister of Justice.
Letter dated 4 September 1972 from the Minister of Justice
to T.S.Fernando.
240
that the form of the rule would ultimately be determined not by
them but by the Ministers. Accordingly, T.S.Fernando, having
asserted that he was unable to agree that the rule they intended
to make was repugnant to the Constitution, expressed himself thus:
We would like to state without reserve that if it
is felt by the framers of the Constitution that a
rule such as that we intend to make is against the
spirit of the Constitution (of which spirit we can
be but inadequate judges) we would like to seek His
Excellency’s permission to tender our resignations
. . . If equality in the sense Mr.de Silva speaks
was the constitutional requirement, it is a pity
that the draftsman of the still-born rule blatantly
overlooked it. Indeed, that draft rule is a pointer
to our belief that it was probably intended to
appoint to the Constitutional Court persons who were
not sitting judges at all. If that was the intention,
whatever be the meaning of section 54, there would
be an additional reason to induce us to request that
we be pemitted voluntarily to tender our resignations . 1
The Minister of Justice informed his colleague of what the
2
three Judges intended to do. Meanwhile, the Minister of Constitutional Affairs had received “an important piece of information” from
Cooray, one of the members of the Court:
He tells me that on the last occasion the Constitutional Court members met, he found an important
change of attitude in TS and the others; mainly that
they were ready for the rule to be that each Court
elects its Chairman. On’that basis, you may think
that a reasonable arrangement is possible; for
election would be by a majority of the three members
and it is hard to believe that each one will vote
for himself only. Provision could, of course, be
made against that eventuality by stating that, in
the event of there being no majority, the member
whose name is first drawn when constituting the
Court shall be the Chairman.
He suggested to his colleague a further discussion later in the
week “if the above either does not appeal to you or proves to be
unacceptable”. The three Judges made no further move, and it is
probable, therefore, that what Cooray had communicated to the Minister was a misunderstanding of the situation. On 9 October 1972,
the Prime Minister thought “that the Minister of Constitutional
Letter dated 7 September from T.S.Fernando to the Minister
of Justice.
Letter dated 15 September 1972 from the Minister of Justice
to the Minister of Constitutional Affairs.
Letter dated 18 September 1972 from the Minister of Constitutional Affairs to the Minister of Justice.
241
Affairs and yourself [the Minister of Justice] might go into this
whole question and advise her in due course as to what might be
done”.’*’ It was apparent that by now everyone had quite forgotten
the specific matter on which the three Judges had sought, and were
awaiting clarification from the President. The intervention of the
Ministers of Justice and of Constitutional Affairs, without any
legal authority therefor, had only confused the issue and contributed towards a hardening of hearts all round.
On 7 November 1972, the Sri Lanka Press Council Bill was
2
presented to the National State Assembly by the Minister of Justice.
On 8 November, a motion was filed in terms of section 54(2)(e) of
the Constitution alleging inconsistencies between the provisions of
3
the bill and the Constitution. On the same day, the five members
of the Constitutional Court met in the premises of the National
State Assembly and adopted by a majority vote the rule relating to
4
the selection of a chairman as proposed by the three Judges.
The First Reference
On 15 November 1972, the Speaker referred to the Constitutional Court a written notice raising a question of inconsistency
in respect of the Sri Lanka Press Council Bill, signed by J.R.Jayewardene, the leader in the National State Assembly of the United
National Party. On the next day, at the Assembly premises, the
names of the five members of the Court were placed in a cylindrical
container and, in the presence of two of them, the Registrar drew
out the names of the three members who would constitute the first
Court. They were T.S.Fernando,Q.C., H.Deheragoda and J.A.L.Cooray.
The Court so constituted chose Fernando as its chairman. Six
other motions filed by citizens, which were also referred by the
Speaker upon the Court advising him that they raised questions of
inconsistency, reached the Court on 21 November, on which day it
held its public session. The Attorney-General, who alone had the
right to be heard on all matters before the Court, was present in
person, assisted by the Solicitor-General and three State Counsel.
The leader of the UNP was represented by his brother, H.W.Jaye1. Letter dated 9 October 1972 from the Secretary to the Prime
Minister to the Minister of Justice.
Ceylon Daily News, 8 November 1972.
Ibid., 9 November 1972.
K.D.de Silva and J.A.L.Cooray requested the Registrar, when
he sent the rules to the Assembly, to append a minute that they
242
wardene,Q.C. Two of the petitioners, W.Dahanayake, MP and Prins
Gunasekera, MP, appeared in person. The other four petitioners
were represented by S.Nadesan,Q.C., H.L.de Silva, M.Tiruchelvam,Q.C.,
and H.W.Jayewardene,Q.C. ^
Very early in the proceedings, the question arose whether
section 65 of the Constitution, which required the Court to give
its decision within two weeks of the reference, was mandatory or
directory. The Court had no doubt as to its meaning; it informed
Counsel that it was prepared to sit even a month in order to enable
them to present a full argument on the question of inconsistency.
The Ceylon Daily Mirror chose to report this statement thus:
DECISION ONLY AFTER I HAVE MADE UP MY MIND – CHAIRMAN
The Constitutional Court will not give its decision
within 14 days even though the Constitution stipulates
that it should do so. This was announced by the Chairman of the Constitutional Court, Mr.T.S.Fernando,
yesterday.^
Other comments and asides made by the Chairman also received wide
publicity in the local newspapers. For instance:
I have not been bothered by the 14-day stipulation.
I have persuaded my brothers that we may have to go
on for a longer time if necessary. If the National
State Assembly is not satisfied with us, they have
their remedy.3
This is a very important matter. In fact, it
would have been better if it was possible for the
whole Court to examine this question, but that is
not possible.^
I accepted this office on the basis that I am
not bound by the 14-day rule.^
This is not a matter of life and death. The
Bill can wait.®
dissented in regard to the rule relating to the selection of a chairman. The Registrar was requested to have the rules approved by the
Legal Draftsman, gazetted, and then presented to the Assembly.
Although he undertook to “get it done in a day”, it was not until
two weeks later that the Legal Draftsman received a letter dated
18 November 1972 from the Registrar stating that he was forwarding
for approval the rules made by the Constitutional Court. The Legal
Draftsman himself took his own time, and it was only on 15 January
1973 that he returned the rules, approved by him, to the Registrar:
Minute dated 30 January 1973 from the Secretary for Justice to the
Prime Minister.
Communique issued by the Registrar of the Constitutional Court,
Ceylon Daily News, 17 November 1972.
Ceylon Daily Mirror, 22 November 1972.
Sun, 24 November 1972. 4. Ibid.
Ibid. 6. Ibid.
243
I hope the Bill is not here on the presumtion that it is good. We have to express our
views. I go on the basis that if the Constitutional Court says that such and such a
section of the Bill is in conflict with the
Constitution, it would be accepted by the
National State Assembly. I like to assume that
the Assembly will respect our views and will
not pass the Bill with a two-thirds majority.^
I was one of those who spoke against the
concept of a Constitutional Court to examine
Bills. I have, however, been made the Chairman
of the Court. The bad boy has been made the
monitor of the class.
One of the arguments presented to the Court was that section
52(1) of the Constitution, which enabled the Assembly to enact by a
two-thirds majority a law which was inconsistent with any provision
of the Constitution without amending or repealing such provision,
did not enable the Assembly to enact a law which was in conflict
3
with any of the fundamental rights guaranteed in the Constitution.
On 29 November, the Speaker decided to express his view on this
argument. In the course of a discussion of a point of order raised
in regard to a bill under consideration, he made the following
pronouncement:
I want to tell you that some people have from time
to time been advising this Assembly as to the course
of action this Assembly should take. This Assembly
is very hesitant to express opinions in obiter without
deep and profound deliberation. I must say that this
Assembly is a sovereign body which has the right even
to pass a law which is inconsistent with the Constitution under section 52(1). Even though it is inconsistent you can pass it by a two-thirds majority, and
that law which is passed is not a constitutional
amendment.
The Constitution enumerates three categories of bills
which can be passed: firstly an ordinary bill which can
be passed with a simple majority; secondly, an amendment
to any section of the Constitution which requires a twothirds majority; thirdly, a bill which, in some particular or respect, is inconsistent with any provision in
the Constitution, which could be passed by a two-thirds
majority. A law which is passed under this proviso
shall not be interpreted as amending the provisions of
the Constitution with which such law is inconsistent.
As Speaker of the National State Assembly, I should
like to say, respectfully, that nobody outside this
Ceylon Daily News, 24 November 1972.
Sun, 27 November 1972.
Ceylon Daily News, 30 November 1972.
244
Assembly , not even the judiciary, has the right
to tell this body, which is sovereign, “We hope
that the National State Assembly will not pass
this bill by a two-thirds majority”. *
The Minister of Justice thought that the Speaker “put it very
well” when he stated that “no outside body as far as you are
concerned can tell this sovereign legislature what it should
or should not do even in the way of advice”. “I am entirely
2
in agreement with your position”, he added.
T.S.Fernando was also the head of the country’s highest
appellate tribunal, the Court of Appeal. Its calendar was
usually arranged at least a month in advance, and some of the
matters awaiting adjudication included appeals from men languishing in the condemned cells. In civil cases too it was desirable
that the law should be clarified very early for the benefit of
the subordinate courts. Although provision existed for seven
Judges, the Government had appointed only four, of whom one was
in poor health; three Judges were required to constitute the
Court. Accordingly, having sat for five consecutive days on the
Constitutional Court, including a Saturday, he sat on the Court
of Appeal on the first two days of the following week, 27 and 28
November. He returned on 29 November to the Constitutional Court
which continued its sittings until Saturday 2 December, when it
adjourned for a week, until Monday 11 December, to enable the
Court of Appeal to complete its own work. The crucial fourteenth
day was reached on Monday 4 December.
The question of the “14-day limit” by now appeared to be
causing some concern both to the Government and to the Speaker,
although the bill as such was not an urgent one. On 27 November,
the Minister of Justice addressed a “secret and confidential”
letter to his colleague, the Minister of Constitutional Affairs:
In two separate sections, the Constitution provides
(a) that the Constitutional Court should tender its
advice to the Speaker in 14 days, and (b) that no
proceedings shall be taken on any Bill which is before
the Constitutional Court, until the Court has tendered
its advice, by the National State Assembly.
My own view is that (a) above is not directory, but
imperative, and that, therefore (b) above can only
National State Assembly Debates, 29 November 1972, cols.2460-61.
Ibid., col.2475.
245
apply for the period of fourteen days. Whether
this view is correct or incorrect, it would be
most unfortunate if we were placed in such a
position in the very first case.
I should therefore like to suggest that if
there is any problem over this, we should clarify
the position at least for the future by an appropriate constitutional amendment.*
The Minister of Constitutional Affairs, however, preferred to
“wait on events”. His reply on 8 December read as follows:
I have also been concerned by the statements
reported to have been made by the Hon.T.S.
Fernando who is currently presiding over the
deliberations before the Constitutional Court,
that the Court is not obliged to give its
decision within two weeks of the reference of
a question by the Hon.Speaker and further, by
the frequent adjournments of that Court. As you
know, I have had occasion to discuss this
matter with the Hon.Prime Minister, the Speaker
and yourself.
As you know, I hold the same view as you that
the Constitutional Court is obliged to give its
decision within two weeks, and I honestly think
that there is no doubt on this point. We also
do not as yet know the views of the Constitutional Court as distinct from those of Mr.T.S.
Fernando. You will perhaps agree, therefore,
that we should wait on events. Moreover, the
Speaker has now come into the picture, and it
may be better to await the outcome of his intervention before considering such a step as amending the Constitution.
Meanwhile, on the fifteenth day, 5 December, the Minister
of Justice, in consultation with his colleague, the Minister of
Constitutional Affairs, the Speaker and the Leader of the Opposition,
decided to speak to the members of the Constitutional Court in
2
regard to their interpretation of section 65 as “directory”. He
felt that the Constitution ought to be interpreted in the “only
3
practical way of interpreting it”; namely, by treating section 65
as neither directory nor mandatory:
I quite realise that sometimes there may be circumstances in which the Court cannot finish its work
in 14 days’ time. With the best will in the world,
without adjourning for the Appeal Court to sit or
without adjourning for other tribunals to sit, even
This view was not expressed to the Court at any stage of the
proceedings by the Attorney-General.
National State Assembly Debates, 12 December 1972, col.1354.
Ibid., col.1345.
246
sitting non-stop for 24 hours a day, there might
be circumstances in which a Court might find it
difficult to finish it in 24 hours [sic] time.
I, therefore, communicated with the members of
the Court and suggested to them that, perhaps as
they were not able to finish their work in 14
days, they might on the 14th day comnunicate with
you, Mr.Speaker, inform the National State Assembly that they have not been able to finish their
work and ask you to make suitable arrangements
for them to be able to continue their work beyond
the 14-day limit. I suggested that in that event,
you, perhaps, would put the matter to the National
State Assembly and I would be prepared to move a
resolution, seconded by my good friend, the plaintiff, the Leader of the Opposition, and by joint
consent, with the consent of the whole Assembly,
the ultimate residuary and authority of power
under section 5, the National State Assembly could ^
extend the time limit at the request of the Court.
The Minister had no doubt in his own mind that his view of the law
was correct. After all, as he later explained:
What the Constitution intended, what we intended,
we collectively in this House, as the makers of the
Constitution, know better than anybody else. *•
Therefore i
I thought I would express this point of view to
the Chairman of the Court and tell him what I
thought was perhaps a more reasonable interpretation, and to commend it to him for his consideration. ^
He telephoned the home of the Chairman of the Court; the Judge was
not in. He managed, however, to contact the other two members of
the Court.
I asked them to please communicate with Mr.T.S.
Fernando and to let me know. The Cabinet was
meeting on Wednesday, the morning of the 14th
day [sic], and I, therefore, requested that I ^
should like to be informed what the position was.
When the Chairman of the Court returned home from a social engagement,
he was informed of the Minister’s telephone call; he was also informed
by his two colleagues of the Minister’s proposal. He did not ring
back the Minister. In his view, section 65 was merely directory and,
therefore, there was no need for the Court to ask for an extension
Ibid., col.1354.
Ibid., col.1354.
Ibid., col.1347.
Ibid., col.1355.
247
of time. If, on the other hand, section 65 was mandatory, the
Court could not ask, nor could the National State Assembly grant,
any extension at all in the absence of constitutional provision
to that effect.^
Justice Deheragoda telephoned the Minister on the following
morning, 6 December, and informed him that the members of the Court
were not agreed in regard to his proposal that they should ask for
an extension of time by writing to the Speaker. The Minister was
peeved. As he told the National State Assembly a week later:
I was then informed by Mr.Justice Deheragoda of a
matter which I regretted very much. He informed me
that Mr.T.S.Fernando, if he was writing a letter,
insisted on saying that he was writing it at the
request of the Minister of Justice. I indicated at
that stage that it was wholly unsatisfactory. While
I was certainly prepared to take the responsibility
of informing the house and its members that I had
certainly spoken to the Judges on a matter like this
to make the Constitutional Court work, I did not
want the Court to think on a statement like that,
later when a judgment of the Constitutional Court
comes the Judges will equally well create the impression: God, this damned judgment was written
at the dictation of the Justice Minister”. This is
not what we want. We want a fair judgment. We want
the Constitution to work. But I considered that it
was nothing more than an attempt to fix the Minister
of Justice, to try to bring him into this operation
when all he had tried to do was to make the Constitution work and to be helpful.
Later in the morning, the Registrar of the Constitutional Court
wrote to the Clerk to the National State Assembly in the following
terms:
I am directed by the majority of the Constitutional
Court to inform you that the proceedings in respect
of the above questions which have been referred to
the Constitutional Court are still continuing and that
a decision would be given as soon as p o s s i b l e . ^
The Minister of Justice was not satisfied.
It is merely a piece of information. There is no
request. “Majority of the Court”; not the Court by
a majority. A majority of the Court, that is, two
members of the Court had told Mr.Sam Wijesinha something which he has told himself and then told you,
that a decision would be given as soon as possible.
“As soon as possible” may mean, if necessary, sitting
for four years or till doomsday.
Interview with T. S. Fernando.
National State Assembly Debates, 12 December 1972, col.1356.
Ibid., col.1358.
Ibid.
248
The Minister made another attempt. He spoke to the two members of
the Court who were in contact with him and told them: “No use of
being abject, no use of using words, no use of using anything.
Merely request the Speaker to enable you to continue your sitting”.^
If they did, he promised to “get a unanimous agreement from the
2
Assembly”. The Chairman, however, refused to comply with the
request.
At the weekly meeting of the Cabinet held on that day, it
was decided “to uphold the Constitution, quite independent of other
3
persons elsewhere”. In the National State Assembly that afternoon,
replying to questions asked by a Federal Party member and by the
Deputy Minister of Planning, the Minister of Justice said that he
doubted very much whether there could be “an institution or court
4
which can be over and above this Assembly”. But if the Constitutional Court, even at that stage, requested the Assembly to grant
it further time to submit its determination on the Press Council
Bill, “some arrangement could be worked out to grant such an extension”.^
Mr.Prins Gunasekera: The 14 days have already lapsed.
Mr. Bandaranaike : I do not know. I have not counted
the days. I do not even know how
the 14 days should be counted. °
When the National State Assembly met at 10 a.m. on 7 December,
the Speaker announced that since the Constitutional Court had not
given its decision within the stipulated period of two weeks, the
proceedings in relation to the Sri Lanka Press Council Bill “will
now proceed in accordance with the Standing Orders of the National
State Assembly and the provisions of Chapter IX of the Constitution.”^
Thereupon, the Leader of the House informed the Assembly that the
bill will be taken up for second reading “at the earliest opportunity”.^
At an emergency meeting of the Opposition, it was decided to
request the Speaker “to permit today a debate on a matter or urgent
public importance expressing opposition to the decision of the
Government to proceed with the second reading of the Press Council
Ibid. 2. Ibid.
Ibid. 4. Ceylon Daily News, 7 December 1972.
Ibid. 6. Ibid.
National State Assembly Debates, 7 December 1972, col.760.
Ibid.
249
Bill while important constitutional issues raised before the Constitutional Court are still undecided”.^ A meeting of party leaders
was fixed for the next day to discuss the request.
Meanwhile, on the adjournment motion in the Assembly, the
Deputy Minister of Planning was permitted by the Speaker to make
2
references derogatory of the Court and its members. For instance,
the Deputy Minister asked the Speaker what action he intended to
take against the “illegal” Court which, if it assembled on Monday,
would by so assembling constitute an “unlawful assembly” within the
meaning of the Penal Code; whether the members of the Court who had
failed to perform their duties should not be removed or whether they
would themselves take the initiative and resign; whether he would
take steps to have the Constitution amended to prevent the President
of the Court of Appeal, who was an officer of an institution subordinate to the “supreme” National State Assembly, from acting for the
President of the Republic should the need arise in the future.
Having permitted these references to be made, the Speaker concluded
the proceedings by making the following observation:
In respect of the matter raised by the Deputy Minister
of Planning, I have to say that the Constitutional
Court sits in the premises of the National State Assembly
as a result of the courtesy extended to it by me. That
courtesy will always be extended to them by me, and the
officers of this House who are now in the service of
this Court will render the same assistance as required.
At 7 p.m. on 10 December, the Speaker met the Minister of
Justice at the latter’s residence. The Attorney-General and the
acting Secretary for Justice, B.S.C.Ratwatte, were also present.
The purpose of the meeting, according to the Minister, was:
to review the situation and to try to work out some
formula to prevent a situation of deadlock and to
find out ways and means even at that point of time
to save this country [sic], to help us out of the
embarrassment of our Constitution being brought to
nought by an arbitrary opinion expressed by the
members of the Constitutional Court.3
At the end of the discussion it was decided, on the Minister’s
suggestion, to “invoke the President of the Republic of Sri Lanka
as the ultimate authority to try and help to solve this matter, to
Sun, 8 December 1972.
National State Assembly Debates, 8 December 1972, cols.963-976.
Ibid., 12 December 1972, col.1360.
250
try to find a solution which we have not been able to find ourselves”.
It was, of course, not within the competence of the President to act
as an appellate court or even as an arbitrator on the matter in
dispute which was one entirely within the jurisdiction of the
Constitutional Court. Therefore, what was being sought was obviously
the opportunity as well as a neutral ground for the two Ministers
and the Speaker to meet and talk to the members of the Constitutional
Court in an effort to persuade them to accept their interpretation
of the constitutional provision in question.
At about 11 p.m. that night, the President telephoned all five
members of the Constitutional Court and invited them to President’s
House “to discuss an important matter”.^ When they arrived, the
Speaker, the Minister of Justice, the Minister of Constitutional
Affairs, the Attorney-General and the acting Secretary for Justice
were already with the President. The two Ministers and the Speaker
argued forcefully that section 65 of the Constitution was mandatory,
but that even at that stage if the Constitutional Court were to make
a request to the Speaker for an extension of the period of fourteen
days specified therein, they “could get together and consider the
matter of granting an extension of time in such a way as to make
2
the Constitutional Court to continue”. K.D.de Silva agreed with
this view. But, as the Minister of Justice later explained to the
National State Assembly:
Our deliberations concluded in a deadlock. The Chairman
of the Court took up the categorical position at that
discussion – and I must tell the Assembly that – that
they had no difficulty whatsoever. ‘We are clear in our
own minds about the interpretation of this section. We
do not admit that anybody has the right to give an ^
extension of time or that we are obliged to ask for time.
The other three members of the Constitutional Court, including V.Siva
Supramaniam, agreed with the Chairman that section 65 was directory.
It was 4.30 a.m. on Monday when the abortive discussion at President’s
House was concluded.
When the Constitutional Court assembled on 11 December, which
was the twenty-first day, the Attorney-General was not present; nor
were any of his juniors present. The Attorney-General had been
Evidence of H.Deheragoda before the Special Presidential Commission of Inquiry, Ceylon Daily News, 29 August 1978.
National State Assembly Debates, 12 December 1972, col.1360.
Ibid., col.1361.
251
directed by the Minister of Justice to withdraw “from the proceedings
of the body of people who are now sitting on the third floor”.^ By
complying with this directive, without even seeking the leave of
the Court to do so, the Attorney-General failed to perform the constitutional duty he owed the Court. When Tiruchelvam rose to continue
his submissions, the Chairman addressed him thus:
Let us say what we think is the present position.
It is the duty of us all, whether we be judges or
not, to uphold the Constitution. To uphold the Constitution we as judges must first understand the meaning
of the relevant provisions of the Constitution. For
that understanding we have to rely on our own judgment
assisted, if need be, by the opinions of learned
counsel. Any other course of action involves, in our
opinion, an abdication of our functions.
We have expressed to you on the very first day
itself our meaning of the relevant provisions, principally sections 65 and 54(4). Such further consideration
as we have so far given to the matter only confirms,
in our opinion, the correctness of our earlier view.
We will therefore hear you, the other Counsel and
the Attorney-General in that order.2
In the National State Assembly, the Speaker announced that the party
leaders had agreed to hold a full day’s debate on the constitutional
situation.^
On 12 December, it was apparent that the proceedings in the
Constitutional Court were drawing to a close, in so far as the
submissions of the petitioners were concerned. However, a motion
had been filed seeking a summons oh the Minister of Information.
The application was made under section 63(3) of the Constitution
which empowered the Court to summon or hear witnesses if it thought
it necessary or expedient to do so. The Chairman indicated that
the Court would make its order on that application on the following
day.^
Meanwhile, on the floor below, the debate on the Appropriation Bill was interrupted and the motion for adjournment was moved
by the Leader of the House, barely ten minutes after that body had
Ibid., cols.1361, 1371, 1448. The Minister explained to the
Assembly that he issued this direction to “my counsel” (“the representative whom I sent to express my point of view”: col. 1347)
since “I am not prepared to participate in a mock trial”. This was
a misunderstanding of the Attorney-General1 s role vis-a-vis the
Constitutional Court. He appeared before that Court in his own right
and not on behalf of the Minister of Justice or of the State. See
s.63(1).
Ceylon Daily News, 12 December 1972.
Ibid.
Ibid., 13 December 1972.
252
assembled, to enable its members to discuss “the Constitutional
Court and the Sri Lanka Press Council Bill”.^ For ten hours
thereafter, members from both sides of the House indulged in an
unprecedented public attack on the Constitutional Court and its
Chairman. Comments made by the Chairman in the course of the
proceedings were often taken out of context, misquoted or misconstrued, and were then used to support the argument that the Constitutional Court was seeking to usurp the “sovereignty” of the
National State Assembly.
The Minister of Justice posed the question in simple terms:
Are we going [therefore] to accede to the position
that there is any other institution superior to this
National State Assembly and capable of frustrating
and avoiding the express terms of the Constitution
upon which we have all agreed and which we have
adopted on behalf of the very people of Sri Lanka ?
That is the question before us.
Or, as he put it in other words:
The question is, Who has the power ? Have they the
power to arrogate to themselves the right to sit
for four years at their will and pleasure, or must
they subordinate themselves to this Assembly ?
He explained the effect of conceding that the Constitutional Court’s
interpretation of section 65 was correct:
If we once concede to the Constitutional Court the
right to determine its own time limit . . . please
remember that what you are doing is establishing
an institution higher than the National State
Assembly and, quite apart from the merits or demerits of the Bill that is being discussed, creating
an issue far bigger than that. The entire legislative
programme of a government can be brought to nought
by this procedure.
The Minister insisted that the Constitution contemplated a decision
being given within fourteen days:
You ask me, how can this be done ? I agree, if you
decide to give each person a chance to speak for
five to six days through his counsel without time
limits; if you decide to sit for a few hours only
for a day; if you decide to postpone the case every
time you decide that you prefer a change of atmosphere in Hulftsdorp or sit in the Court of Appeal;
then, of course, you will never be able to finish
your work in fourteen days time.
The full proceedings are published in National State Assembly
Debates, 12 December 1972.
253
The Minister said that he knew of no case which is so complicated
in its effects that one could not arrive at a decision within
fourteen days:
What we have here is a court conducting a dialogue.
The newspaper reporters are there. Political views
are expressed. Legal views and all kinds of other
views are expressed. It is quite a different situation that I should have expected. If you have got
to do this work within 14 days, give the various
persons a time limit of a few days to make their
submissions in writing and take time to study them.
If you have any questions to ask, send for the
people concerned. It is a tragedy when lawyers go
on talking for hours and hours.
When an Opposition member intervened to point out that the AttorneyGeneral had remained seated and said nothing while the Court had
repeatedly expressed its views on section 65, the Minister replied:
The Attorney-General may choose to remain silent
when irrelevancies or rubbish are being spoken by
anybody in his presence. It is not the duty of the
Attorney-General to jump up and start interrupting.
How many times have I remained silent while the
Member for Nintavur made inane remarks.
The Minister did not think that the Constitution needed amendment.
“I take the view”, he said, “that there is no question of the
Constitution requiring amendment. I think it is as plain as a
pikestaff”. He added:
If you ask me whether the Constitution is defective.
I would repeat, no, no, and no again. The Constitution is perfectly correct in every line and word
of what it says. Merely because you choose to give
the Constitution meanings to satisfy the vanity of
any one individual who wants to set himself above
the Constitution, I repeat that is not a possible
way of testing the validity of the Constitution.
The Minister thought that:
If . . . with all the panoply of what was the Constitutional Court on Friday, the same three people
continue to sit, not as a Constitutional Court but
as a mock trial on Monday, the people of this country
will not see that distinction and will wonder why the
Assembly is in fact stulifying itself.
Therefore:
If the Constitutional Court is not prepared to
respect the wishes of this House, there is no alternative, the Constitutional Court will have to go.
254
As for himself:
I shall not shift an inch in surrendering our rights
under the Constitution; nor am I prepared to participate in a mock trial.
He asked the Assembly:
Are you prepared to accept a subordination of the
position of the National State Assembly ?
Members: No, no !
That is the question.
The Minister of Constitutional Affairs was indignant that
the Court should have heard Counsel who argued that certain provisions of the Constitution, which he had drafted, were unamendable
even with a two-third majority:
No Court should have tolerated that for one minute . . .
The Court that was so sure about its 14 days might have
been sufficiently aware of the constitutionality even to
tell that Counsel at once that he is talking through the
back of his head . . . It is laid down in black and
white . . . Everybody in this country knows that this
Assembly by a two-thirds majority has the right to
change the Constitution, amend this Constitution, repeal
the provisions of this Constitution, and to substitute
another Constitution for this Constitution if it wishes.
He knows it. If the Court did not know it, I take this
opportunity of saying that it is not fit to sit there.
The Minister of Finance, Dr.N.M.Perera, was “surprised” at the latitude allowed to Counsel:
In that place, the whole Constitution is being discussed. That Court has no power to do that. Those
people have no power to discuss the rights and wrongs
of our Constitution. All they have to do is to tell us
whether any provision of a Bill is inconsistent with
the Constitution. Can that not be done in 14 days ?
But if they begin to indulge in irrelevancies and
unnecessary talk, if they start examining all the
constitutions in the world, not only will 14 days not
be sufficient; even four years will not do. That
gentleman has spoken of four years. He is right.
I believe that the Prime Minister should send for the
members of the Constitutional Court and tell them
that before they start lecturing to us what the law is
or is not, they should perform the duty which the law
has cast on them. She has the power to do that.
The Finance Minister referred to the Chairman’s statement that “the
bad boy has been made the monitor of the class”. He recalled that
the Chairman, in the company of S.Nadesan,Q.C., had made representations to the Cabinet, at the time the Constitution was being drafted,
Six years later, Colvin R.de Silva himself argued before the
Constitutional Court that a bill inconsistent with a “fundamental
provision” could not be proceeded with even by a two-third majority:
(1978) DCC, Vol.6, at p.33.
255
against the concept of a Constitutional Court:
I thought he took up the position of an independent
judiciary. .1 think he may have conceived of a judiciary which was above the National State Assembly.
He believed in the separation of powers, I think.
. . . I do not think he will misunderstand if I were
to say that it was his duty to have told the Prime
Minister: ‘At the outset I was opposed to the concept
of a Constitutional Court; I have different views on
it; I will find it difficult to do this job; therefore, it would not be proper to entrust me with this
task.’ But without saying any of this, he undertook
the task. Having done so, it was his duty to have
abandoned his previous views and entered upon his
duties with an independent mind. By not doing so, he
has done himself a disservice.
He countered the argument that the Government had appointed T.S.
Fernando in full knowledge of all this by explaining that “we appoint
Judges, with the best of intentions, considering all the circumstances as to their honourable qualities, their independence, their
capacity, and so on”. He pleaded:
We do not know at what time mental aberrations may
arise. Some kind of infirmities sometimes arise
suddenly. We cannot always be sure of the people we
appoint, but as far as we possibly can. As the Member for Jaffna would say, it is human to err. So, in
the choice of persons also it is human sometimes to
appoint a wrong person.
The view of the Opposition, as expressed by J.R.Jayewardene,
was that “provision should be made by an amendment to the Constitution, for the Speaker, with the consent of the House, to grant
time, if he is satisfied that the request for time to exceed the
two weeks is bona fide”. In regard to the present impasse, he
suggested that the government withdraw the bill from the agenda of
the Assembly and present it again; thus bringing the proceedings
of the Constitutional Court to an end. The problem, as he saw it,
was not to find out who was responsible for the impasse that had
occured, nor to attach blame to anyone; not to decide whether the
decision of the Court should have been given within two weeks of
the reference or not. These, he said, cannot be decided in that
debate.
Opposition members also took this opportunity to hurl a few
brickbats themselves. Gamini Dissanayake (UNP) wondered whether
Fernando could be sued for non-performance of his duties. Prins
Gunasekera (Ind.) berated him for a judgment which he had delivered
in a labour tribunal appeal some twelve years previously. But cf.
R.Premadasa (UNP) and M.M.Mustapha (UNP) who paid tribute to the
Chairman’s “independence” and “integrity”.
256
Dissolution of the Court
The debate concluded when the Assembly adjourned at 8.43 p.m.
About an hour later, Deheragoda received a telephone call from
Hector Kobbekaduwa, Minister of Agriculture and Lands. According
to Deheragoda,^ Kobbekaduwa told him that unless he resigned from
the Constitutional Court, there was a strong likelihood of an
address in the National State Assembly for Deheragoda fs removal
from the Supreme Court. He immediately met the President of the
Republic who told him that it was a matter for decision by. him and
that since “they might not give in”, it was safer to resign. He
also met the Chief Justice, H.N.G.Fernando, and the Chairman of the
Constitutional Court, T.S.Fernando, both of whom advised him to
resign frcm the office of member of the Constitutional Court.
2
According to T.S.Fernando, Deheragoda visited him late that
night. He said that he had received a telephone call from Kobbekaduwa; the latter was speaking from the office of the Clerk to the
National State Assembly. “Kobbekaduwa said that the Government had
decided to remove the three members of the Constitutional Court
from office. The Constitution would be amended to give the National
State Assembly the power to do so. Kobbekaduwa said that he was
not concerned about Fernando or Cooray, but that he was deeply
concerned about me since there was also the likelihood that, following my removal from the Constitutional Court, I might also have
to be removed from the Supreme Court. Kobbekaduwa said that the
Minister of Justice was also with him, and then handed the telephone
over to Felix Dias Bandaranaike who confirmed what Kobbekaduwa had
just said.” Deheragoda told Fernando that he had no private
income, and that Kobbekaduwa had reminded him that in the event of
his removal from the Supreme Court he would probably forfeit his
pension in respect of nearly thirty years of public service.
Fernando told Deheragoda that in this situation he should not
consider himself bound by a decision taken by the three members of
the Court earlier that day that they would complete the hearing,
submit their decision to the Speaker, and then resign their offices
Evidence of H.Deheragoda before the Special Presidential
Commission of Inquiry, Ceylon Daily News, 29 August 1978. See also
Order of the Commission, Ibid., 28 November 1978.
This version of the events was provided by T.S.Fernando on
1 January 1973.
257
on the Court. This was a matter on which Deheragoda should advise
himself after discussion with his wife and other members of his
family.
There was no provision in the Constitution for the removal of
a member of the Constitutional Court by an address of the National
State Assembly. There was no suggestion made in the course of the
debate that the Constitution should be amended to enable this to be
done. According to the Prime Minister, Mrs.Bandaranaike, the
Cabinet had not taken a decision to introduce such an amendment.^
Therefore, it is safe to assume that the Government had no intention
of removing the members of the Constitutional Court. Fernando and
Deheragoda were both Judges of superior courts who held office
“during good behaviour” and could be removed from their offices by
the President upon addresses of the National State Assembly. But
their removal from other Courts for conduct unrelated in any way
to their work on such Courts would not only have been an abuse of
constitutional powers; their tenure on the Constitutional Court
would have remained unaffected. Therefore, it may also be assumed
that the Government had no intention of removing either Fernando or
Deheragoda from the Court of Appeal or the Supreme Court, as the
case may be. Why then did the Minister of Agriculture and Lands
tell his friend, Deheragoda, that “there was a strong likelihood
of an address in the National State Assembly for his removal from
the Supreme Court ? The answer probably lies in what the Minister
of Justice had publicly declared earlier that day: “The Constitutional Court will have to go”. Cooray had held office on the
Constitutional Court only for six months and may not have minded
going back to teaching and to the Bar; in fact, he had already
decided to do so after he had signed the decision. Fernando, then
head of Sri Lanka’s judiciary, had weathered many storms during a
long and distinguished career on the bench; in any event, he had
been unapproachable even on the telephone and it was only through
the intervention of the President that the Ministers had been able
to communicate with him. Deheragoda, on the other hand, had just
commenced, at the tail end of a perfectly ordinary and uneventful
career in the public service, what he must have hoped would be an
This information was provided by Mrs.Bandaranaike in January
1973.
258
equally uneventful tenure of office as a Judge; retirement on full
pension with the occasional invitation to head a commission of
inquiry lay but three years ahead. He was clearly the weakest link.
If the Court was determined not to resign until it had concluded
its task, despite the battering it had been subjected to earlier
in the day; if the Court were to make a determination on the bill
and forward it to the Speaker; if the National State Assembly had
by then taken action on that bill which was inconsistent with such
determination, the Government would be faced with a most awkward
and embarrassing situation. If, as the Minister of Justice had
declared, “the Constitutional Court will have to go”, it had to be
done now and it could only be done by breaking one of the links
that held the Court together.”^
Early in the morning, Deheragoda wrote the following letter
to the President and handed over copies of it to his two colleagues
on the Court:
In view of recent developments, I, Ekanayake Rajapakse Kodippili Dissanayake Mudiyanseralahamilaye
Hector Deheragoda, do hereby tender my resignation
with effect from today from my membership of the
Constitutional Court in terms of section 56(1)(b) of
the Constitution of the Republic of Sri Lanka.
I might incidentally mention that my officiating
as a member of the Constitutional Court so far has
interfered with the expeditious hearing of the
inquiry now before the Criminal Justice Commission.
I take the liberty of writing in English as the
matter is urgent and confidential.
With his resignation, the Constitutional Court became instantly
immobile. There was no provision for the other two members to
sit by themselves; nor was there any provision for substituting
another member. At 9.30 a.m., the Registrar told Counsel who had
assembled in the court premises: “I have been informed that the
2
Court is not sitting”. Later that morning, T.S.Fernando called
In a statement filed in the Special Presidential Commission
of Inquiry, Kobbekaduwa admitted the telephone call from his house
to a “personal friend” whose “interest he had at heart”. His
intention was to “apprise him of the mood prevalent among Members
of Parliament” that evening. It was “furthest from my mind to
threaten him in any way”. Kobbekaduwa said that, following the
debate in the National State Assembly, “he was alarmed, on the one
hand, that precipitate action might bring the judiciary into ridicule and thereby harm the image of the Government”. He was alarmed,
on the other hand, in regard to the possible consequences such an
action might have on Deheragoda: Ceylon Daily News, 28 November 1978.
Ceylon Daily News, 14 December 1972.
259
on the President and handed over the following letter of resignation:
Mr.H.Deheragoda, member of the Constitutional Court,
has informed me this morning that he has tendered to
Your Excellency his resignation from membership of that
Court.
Even at the time of adjournment of Court last afternoon it was the intention of all three members of the
Court, in view of our opinion as to the meaning of the
relevant sections of the Constitution, to continue the
hearings and give a decision. The resignation of Mr.
Deheragoda leaves only two members to continue the
hearings, and it is not possible for the Court to
continue in the present matter.
In view of what I have stated in the paragraph above,
and having regard to statements made in the National
State Assembly on the 7th and the 12th December 1972,
it has become apparent to me that duty, self-respect
and conscience combine to compel me to avail myself of
the relevant provision of section 56(1) of the Constitution and tender to your Excellency my resignation
of the membership which I have held in the Constitutional Court since the 23rd June 1972. That resignation
I hereby tender.
You Excellency will permit me to add that I am
satisfied that I have done everything to uphold the
true meaning of section 65 of the Constitution, a
meaning with which my two colleagues agreed on the
morning of the commencement of the hearings on the
Press Bill. This resignation would have been tendered
immediately after the 7th December had we not considered it our duty to continue till sre gave our decision.
Shortly thereafter, Cooray wrote to the President in the following
terms:
Messrs T.S.Fernando and H.Deheragoda have informed
me this day that they have tendered to Your Excellency
their resignation from membership of the Constitutional
Court.
As a result of these resignations it is obviously
not possible to continue the present Court proceedings,
and give a decision on the questions referred to the
Court by the Speaker.
In view of these developments and certain statements
made in the National State Assembly recently with
regard to the Court and its proceedings, I consider
it my duty to tender to Your Excellency my resignation
from membership of the Constitutional Court – which
I hereby do in terms of section 56 of the Constitution.
Perhaps oblivious of the fact that the Court no longer existed,
the Deputy Minister of Planning rose in the National State Assembly
at 8 p.m. to speak on “the unconstitutional court”. He asked what
steps would be taken to remove “the jokers” on it. He wished to
260
know whether the Constitution would be amended to enable the
President to remove a member of the Constitutional Court for
misbehaviour. If the illegal court continued to sit after the
fourteenth day, who would meet its expenses ? Since the Court
had failed to make its rules, will steps be taken to recover the
entire expenditure of the illegal sessions from the remuneration
paid to its members
Reconstitution of the Court
The Chief Justice, H.N.G.Fernando, made it known to the
other Judges of the Supreme Court that, in his view, having regard
to the treatment meted out to one of them, they should not agree
2
to serve on the Constitutional Court. Consequently, when Justice
Wimalaratne was invited by the Minister of Justice to be a member
of the Constitutional Courtr he declined to do so. D.Q.M.Sirimanne,
a District Judge serving as a Commissioner of Assize and about to
be appointed as a Puisne Justice, was then invited by the Minister;
he felt that as the most junior judge, his appointment to the
Constitutional Court coupled with his appointment to the Supreme
Court at the same time might be open to the criticism that he was
being appointed for the purpose of hearing a particular case in
3
which the Government had an interest. Finally, on 22 January 1973,
nearly six weeks after the three vacancies had occured, the President
announced the appointments of Justice Pathirana; C.V.Udalagama, a
District Judge; and T.A.de S.Wijesundera, a Deputy SolicitorGeneral; both of whom were then officiating as Commissioners of
Assize. Not only the renewal of their short-term commissions, but
also the question of their eventual promotion to the Supreme Court,
were matters which were entirely in the discretion of the executive.
Five days later, rules made by the Constitutional Court were
gazetted. The reconstituted Court had been quite willing to
formally approve a set of rules which had been prepared by the
Legal Draftsman on the instructions of the Minister of Justice even
before their appointment to the Court.^
National State Assembly Debates, 13 December 1972, col.1919.
Private information.
Letter dated 8 January 1973 from the Minister of Justice to
the Prime Minister.
By letter dated 17 December 1972, the Minister of Justice
forwarded to the Minister of Constitutional Affairs a copy of draft
rules prepared by him. On 15 January 1973, the Legal Draftsman sent
261
The terms of office of the original appointees to the
Constitutional Court and of the successors of some of them
expired on 22 June 1976. The Minister of Justice, whose advice
was sought by the Prime Minister, thought that “it is desirable
that appointments be made as far as possible from among the
serving Judges of the highest Court”.^ As he pointed out, this
“will also represent a considerable saving of money to the State
because, as serving Judges, they would not have to be remunerated separately for their services”. He recommended the re2
appointment of Justices Pathirana, Udalagama and Wijesundera.
In place of retired Judges K.D.de Silva and V.Siva Supramaniam,
he recaimended the appointment of Justice Tittewella, who had
served as Permanent Secretary to the Ministry of Constitutional
Affairs and Secretary to the Constituent Assembly, and Justice
Vythialingam, since “it is very desirable to have on the Consti
tutional Court a Tamil member to watch over special minority
interests that may come up for consideration from time to time by
the Constitutional Court”. These five members were appointed on
23 June 1976 and held office until the Constitutional Court ceased
to exist in September 1978. It was perhaps more than a coincidence
that they were all removed from office when the Supreme Court was
reconstituted that month in terms of the 1978 Constitution.
the Registrar of the Constitutional Court, with copy to the
Minister of Constitutional Affairs, these draft rules duly
approved by him. They were further amended on the suggestion
of the Minister of Constitutional Affairs, and the final draft,
also approved by the Attorney-General, was placed before the
reconstituted Constitutional Court. See Letters dated 25 January 1973 from the Minister of Constitutional Affairs to the
Minister of Justice; 30 January 1973 from the Minister of
Constitutional Affairs to the Minister of Justice; and 23;January 1973 from the Secretary for Justice to the Prime Minister.
Letter dated 10 May 1976 from the Minister of Justice
to the Prime Minister.
The two last named were appointed to the Supreme Court
on 1 January 1974.
262
An Assessment
The legal safeguards designed to secure judicial independence are now more exhaustive than ever before; for the first
time, there is even a chapter in the Constitution actually headed
“Independence of the Judiciary”. But these legal safeguards
have not in the past prevented the executive from securing the
removal or resignation of Judges; nor the legislature from
proceeding to subject the judiciary to public attack; nor even
the Prime Minister from ensuring the appointment, whenever he
wished, of persons known to be politically sympathetic to him.
Unlike under earlier constitutional arrangements in Sri
Lanka, the President is now both Head of State and Head of Government, and when he appoints Judges, he does so in his absolute
discretion. Under the 1972 Constitution, the President acted on
advice, and in tendering that advice in regard to judicial appointments, the Prime Minister invariably consulted the Minister of
Justice. There was, therefore, several opportunities for the
exercise of caution and restraint. The Constitutions of a number
of Commonwealth countries which have presidential executives, do
not leave the matter of judicial appointments in the absolute
discretion of the President. For instance, in Guyana, the Chancellor of the Court of Appeal and the Chief Justice of the High
Court are appointed by the President “acting after consultation
with the Minority Leader”,^ while the other Judges of these
Courts are appointed by him “acting in accordance with the advice
2
of the Judicial Service Commission”. In Nigeria, the Chief
Justice is appointed by the President in his discretion “subject
to confirmation of such appointment by a simple majority of the
3
Senate”, while other Judges are appointed by him “on the
advice of the Federal Judicial Service Commission subject to
4
approval of such appointment by a simple majority of the Senate”.
In Ghana, the President appoints the Chief Justice “acting in
consultation with the Judicial Council”,”* and the other Judges
Constitution of the Co-operative Republic of Guy ana 1980,
Art.127(1).
Ibid., Art.128(1).
Constitution of the Federal Republic of Nigeria 1979, Art.
211(1). The Senate consists of five members elected from each
State and one from the federal capital territory.
Ibid., Art.211(2).
Constitution of the Republic of Ghana 1979, Art.126(1).
263
“acting on the advice of the Judicial Council”^ and with the
approval of Parliament. Even where the President is empowered
to appoint the Chief Justice in his discretion, some of the
Conmonwealth Constitutions require the President, when making
other appointments to the Court, to act either on the advice of,
or in consultation with, the Chief Justice or the Judicial Service
2
Commission. If the 1978 Constitution had contained a provision
which required the President to consult the Leader of the Opposition before making judicial appointments, that might have served
not only to caution the President to seek only “individuals of
integrity and ability, well-trained in the law and its applicat3
ion”, but also to induce prospective judges and aspirants to
higher judicial office to be more circumspect in their own conduct.
Influenced, no doubt, by British traditions, all three
Constitutions under review have required an address of Parliament
for the removal of a Judge. However, no resolution for the
presentation of such an address may now be entertained by the
Speaker unless notice of such resolution is signed by not less than
4
one-third of the total number of Members of Parliament. Having
regard to the fact that in the 168-member present Parliament the
total strength of the Opposition is only 26, no such resolution
can, in fact, be submitted against any Judge by the Opposition,
Ibid.
See Constitutions of the United Republic of Tanzania 1977,
Art.61(2): “after consultation with the Chief Justice”; Republic
of Seychelles 1979, Art.67(2): “shall consult the Chief Justice”;
Republic of the Gambia 1970, Art.90(2): “acting on the advice of
the Judicial Service Commission”; Republic of Uganda 1967, Art.84(2)
“acting in accordance with the advice of the Judicial Service
Commission”; Republic of Botswana 1966, Art.97(2): “acting in
accordance with the advice of the Judicial Service Commission”;
Republic of Mauritius 1968, Art.77(3): “acting in accordance with
the advice of the Judicial and Legal Service Commission”; Republic
of Sierra Leone 1978, Art.113(2): “in accordance with the advice
of the First Vice-President”; Republic of Kenya 1969, Art.61(2):
“actirg in accordance with the advice of the Judicial Service
Commission”; Republic of Zambia 1973, Art.110(2): “acting in
accordance with the advice of the Judicial Service Commission”.
Draft Principles on the Independence of the Judiciary,
op.cit.
Art.107(2).
264
however legitimate its grievance against such Judge may be. For
instance, the three superior court Judges who served on the Presidential Commission of Inquiry could, in the course of that extrajudicial activity, have proceeded to castigate the political
leaders of the Opposition with impunity, secure in the knowledge
that the victims were powerless to retaliate. On the other hand,
Parliament’s power to remove Judges from office and the privilege
it enjoys of commenting on their conduct, have both been misused
and abused in the recent past, and it would today require
extraordinary moral courage on the part of a Judge to free his
mind of all but the clear stream of reason.
None of the Sri Lankan Constitutions have contained a
provision which prohibited the abolition of a judicial office
while there was a substantive holder thereof. The recent Constitution of Zimbabwe provides that:
The office of a judge of the High Court shall not,
without his consent, be abolished during his tenure
of office. 1
The even more recent Constitution of Belize provides that:
The office of a justice shall not be abolished while
there is a substantive holder thereof. 2
Provisions similar to these are found in several other Cotimonwealth
Constitutions as well. Had such a provision existed in the 1972
Constitution, it is possible that the course of Sri Lanka’s
judicial history might have taken a different turn. If such a
provision is included in the present Constitution, it may assist
Judges of the future in acquiring and retaining some of the essential attributes of judicial office.
The path to judicial independence, however, is not a single
carriageway. If the Judges were to turn the searchlight inwards,
would they not see, not only the beam in the eye of the executive,
but also the mote in the eye of the judiciary ? for instance, it
is essential if judicial independence were to be maintained, that
“judges can and should decline to sit in cases where their independence may properly be called into question, whether or not so
requested by one of the parties”. This principle, though scrupu1. Art.86(3).
Art.95(2).
Draft Principles on the Independence of the Judiciary, op.cit.
265
lously observed in the early years, has tended to be ignored in
more recent times, particularly in matters to which the State is
a party. In 1960, acting Justice Tambiah heard an application for
a special jury made on behalf of the five persons accused of the
murder of Prime Minister Bandaranaike. On the day on which he was
due to make his order, Queen’s Counsel appearing for two of the
accused submitted that the Judge should refrain from dealing with
the matter “as His Lordship was one of the speakers at a meeting
held on the Bandaranaike Commemoration Day”, two months previously.
The Judge agreed that justice must not only be done, but must also
appear to be done. Accordingly, he directed that the application
be argued again before another Judge.’*’ But in June 1973, when one
of the petitioners questioning the constitutionality of the Associated Newspapers of Ceylon (Special Provisions) Bill before the
Constitutional Court, submitted that the Chairman of that Court,
Justice Pathirana, was disqualified from sitting on the ground of
bias or the likelihood of bias, this principle was not applied.
It was submitted that the Judge had, between 1960 and 1964, as a
Member of Parliament, actively supported the introduction of legislation to either broadbase or take over this particular newspaper
company. The Judge, however, insisted on sitting, and later held
that the bill was not inconsistent with the Constitution inasmuch
as it sought, inter alia, to give effect to the Principles of
2
State Policy. More recently, in January 1979, a Special Presidential Commission consisting of two Supreme Court Judges and one
Judge of the Court of Appeal insisted on proceeding to hear evidence
relating to a number of charges laid against the person noticed
in respect of which they were the virtual complainants. Rejecting
a plea of bias, the commissioners observed that since they were
3
all Judges, they were quite capable of being “objective”.
Ceylon Daily News, 8 December 1960.
Affidavit of R.S.Wijewardene, dated 12 June 1973, filed in
the Constitutional Court of Sri Lanka (Proceedings in the matter
of Bill No.42 of 1973).
Proceedings of the Special Presidential Commission of Inquiry,
January – July, 1979. See also Second Interim Report, op.cit.,
pp.132-134.
266
In the final analysis, it is not legal safeguards that
secure the independence of the judiciary. The Government must
have the strength of purpose and the will to respect the
integrity of the Court, without seeking to make it conform to
its own judgment of men and matters. A Judge must have the
capacity, consciousness and inclination to act uninfluenced by
fear and unbiassed by hope in matters concerning the rights and
freedoms of the individual. When these attributes are present,
the legal safeguards serve to buttress them. In their absence,
the law serves as nothing more than an empty shell.
CHAPTER V
JUDICIAL REVIEW OF LEGISLATIVE ACTION
Judicial review of legislative action is an important element
in the enforcement of fundamental rights. In the current debate in
the United Kingdom on whether or not a bill of rights should be
enacted, two alternative forms of review have been suggested.’*’ One
is to enable the judiciary to declare a law invalid which it holds
to be repugnant to a protected right. This is a jurisdiction now
being exercised by the Supreme Court in India and in the United
States and by the Judicial Committee of the Privy Council in respect
of several Commonwealth countries. The other is to enable a bill
to be examined for repugnance before it is enacted. This function
of anticipatory review was entrusted to the Federal Constitutional
Court in Germany by the 1949 Basic Law; to the Constitutional
Council in France by the 1958 Constitution; to the Minister of
Justice in Canada by the 1960 Bill of Rights; and to the Senate
Legal Committee in Zimbabwe by the 1980 Constitution. One of the
suggestions made in the United Kingdom is that perhaps the Parlia2
mentary Commissioner (or Ombudsman) could perform this task. In
Sri Lanka, provision has existed, under different Constitutions,
for the ex post facto review of legislation as well as for the
examination of bills for constitutionality. In this chapter it is
proposed to examine the effectiveness of these two forms of review
in ensuring the inviolability of fundamental rights.
For the debate in the United Kingdom, see Selected Bibliography, infra.
The Earl of Arran’s Bill of Rights provided that: “The
Parliamentary Commissioner shall examine every Bill introduced in
or Statutory Instrument laid before either House of Parliament,
in order to ascertain whether any of the provisions thereof are
inconsistent with the purposes and provisions of this Part of this
Act, and he shall report any such inconsistency to both Houses at
the first convenient opportunity”: (Clause 3).
Ex Post Facto Review of Legislation
268
General Observations
Assumption of Jurisdiction
The 1946 Constitution did not specifically declare the right
of a Court to inquire into and pronounce upon the validity of an
Act of Parliament. Section 29(2), however, prohibited Parliament
from legislating in respect of certain subjects; and any law made
in contravention of that prohibition was declared by section 29(3)
to be void. Section 29(4) required a bill for the amendment or
repeal of any provision of the Constitution to bear a certificate
under the hand of the Speaker that the number of votes cast in
favour thereof in the House of Representatives amounted to not less
than two-thirds of the whole number of members of that House;
presumably, such a bill which did not bear this certificate was
also void.^ Section 29(1) which authorised Parliament to make laws
for “the peace, order and good government of the Island” was not
regarded as a limitation clause; it denoted rather the plenitude
2
of sovereign legislative power. The Supreme Court did not consider
itself competent to examine a statute to decide whether it was
actually for the peace, order and good government of the country
and if it was not, to pronounce it void. As it explained:
To do so would be to negative the Sovereignty of Parliament which is limited only in the manner set out in the
other subsections of section 29. To extend the scope of
judicial review beyond that would be to place in the
Courts a new power unrecognised by the Constitution at
the expense of a power vested in Parliament by the Constitution.^
As early as 1951, a magistrate functioning as a revising
officer of electoral registers refused to apply a law enacted by
Parliament on the ground that it purported to deal with one of the
subjects prohibited by section 29. He held that the Ceylon (Parliamentary Elections)(Amendment) Act, No.48 of 1949, which prescribed
citizenship of Ceylon as a necessary qualification of an elector,
and the Citizenship Act, No.18 of 1948, were invalid as offending
section 29(2) of the Constitution, and that the operative law was
In Thambiayah v. Kulasingham (1948) 50 NLR 25 a pronouncewas made that a provision in the Parliamentary Elections (Amendment)
Act, No. 19 of 1948, was in conflict with s.l3(3)(h) of the Constitution but had not been passed in the manner required by s.29(4) and
was, therefore, void.
Bribery Commissioner v. Ranasinghe (1964) 66 NLR 73.
The Queen v. Liyanage (1962) 64 NLR 313, per T.S.Fernando J.
269
that contained in the original Order in Council of 1946 as it stood
before it was amended. When the Attorney-General applied to the
Supreme Court to have that order quashed, it was assumed by everyone concerned in that proceeding that the Court undoubtedly had
jurisdiction to examine and pronounce upon the question whether a
statute offended against section 2 9 ( 2 ) Ten years later, in Senadhira v. Bribery Comnissioner, the Supreme Court asserted its
jurisdiction to strike down a law which offended against any other
provision of the Constitution. In that case, it was held that the
power given to a Bribery Tribunal appointed by the Governor-General
on the advice of the Minister to convict, fine and imprison persons
charged before it was unconstitutional inasmuch as such power being
exclusively a judicial power, could be exercised only by a judicial
officer appointed by the Judicial Service Commission in terms of
section 55 of the Constitution.
Impugned Laws
The 1938 revised edition of the Legislative Enactments of
Ceylon, which was in force at Independence, contained 337 statutes.
Between its publication and Independence, a further 568 Ordinances
had been enacted by the Governor with the advice and consent of the
State Council. Accordingly, at Independence, approximately 905
statutes were in force. Between January 1948 and May 1972, Parliament enacted 1002 Acts. Therefore, under the 1946 Constitution,
approximately 1907 statutes were in operation. Of these, only 26
statutes (or 1.3 per cent) were impugned during the twenty-five
years that that Constitution remained the supreme law of the
country. They were:
TABLE 22
STATUTES IMPUGNED UNDER THE
1946 CONSTITUTION
Statute Number
Criminal Procedure Code
Income Tax Ordinance
Workmen’s Compensation Ordinance
Co-operative Societies Ordinance
15 of 1898
2 of 1932
19 of 1934
16 of 1936
Mudannayake v. Sivagnanasunderam (1951) 53 NLR 25.
(1961) 63 NLR 313.
270
Statute Number
Public Security Ordinance 25 of 1947
Commissions of Inquiry Act 17 of 1948
Citizenship Act 18 of 1948
Parliamentary Elections (Amendment) Act 19 of 1948
Army Act 17 of 1949
Ceylon (Parliamentary Elections) Act 48 of 1949
Industrial Disputes Act 43 of 1950
Muslim Marriage and Divorce Act i3 of 1954
Bribery Act 11 of 1954
Immigrants and Emigrants Act 16 of 1955
Prevention of Social Disabilities Act 21 of 1957
Motor Transport Act 48 of 1957
Industrial Disputes (Amendment)Act 62 of 1957
Official Language Act 33 of 1956
Bribery (Amendment) Act 40 of 1958
Ceylon Parliamentary Elections (Amendment) Act 72 of 1961
Criminal Law (Special Provisions) Act 1 of 1962
Imposition of Civic Disabilities (Special Provisions) Act 14 of 1965
Rent Restriction (Amendment) Act 12 °f 1966
Industrial Disputes (Special Provisions) Act 37 of 1968
The Privy Council invalidated almost the entirety of the Criminal
Law (Special Provisions) Act on the ground that it “constituted a
grave and deliberate interference with the judicial power of the
judicature”.^ The Supreme Court held that certain provisions of the
2 3 Bribery Act, Muslim Marriage and Divorce Act, Licensing of
4 5 Traders Act, and the Co-operative Societies Act were ultra vires
section 55 of the Constitution. A District Court judgment of 1964,
which was yet in appeal when the 1946 Constitution was superseded,
found the Official Language Act to be in contravention of section
Liyanage v. The Queen (1965) 68 NLR 265.
Senadhira v. Bribery Commissioner, supra; Piyadasa v. Bribery
Commissioner (1962) 64 NLR 385; Ranasinghe v. Bribery Commissioner
(1962) 64 NLR 449.
Jailabdeen v. Danina Umma (1962) 64 NLR 419.
Ibrahim~vT Government Agent, Vavuniya (1966) 69 NLR 217.
Karunatilleke v. Abeywira (1966) 68 NLR 503.
271
29(2) of the Constitution.^ Apart from the last-mentioned, the
legal validity of which was never authoritatively determined, none
of the invalidated statutes were of any real social or economic
significance in the life of the country.
Method of Challenge
Since no express power to pronounce upon the validity of
legislation was conferred by the Constitution on a particular court,
the aggrieved party was left to his own ingenuity in locating a
suitable forum in which to ventilate his grievance and in choosing
the manner of invoking the jurisdiction of that forum. Of the
reported cases (excluding the instance of the revising officer
already referred to), in all but one the forum chosen was the
Supreme Court; the single exception being an application for a
declaration filed in the District Court of Colombo. The unpopularity of the declaratory judgment was probably due to the fact that
though a safe all-purpose remedy, it could only be obtained after
a dilatory and protracted original court proceeding. The majority
of the petitioners invoked the prerogative writ jurisdiction of the
Supreme Court; certiorari being preferred to all the others. A few
raised the issue of vires as a ground of appeal or by way of a
defence in a criminal prosecution or election petition. The adequacy or otherwise of these remedies for this purpose is examined in
the next chapter. However, the perils which some of the petitioners
who relied on traditional or antiquated remedies such as these had
to face may be noted at this stage.
2
In Don Anthony v. Bribery Commissioner, the Supreme Court
pointed out to an appellant who challenged the constitutionality
of the Bribery Act that, while the argument presented by him was
“not without attraction”, it was not competent for him to attack
as invalid the very Act of Parliament which alone conferred on him
the right of appeal. It was the Court’s view that “any relief on
the ground of the invalidity of the Act must be found by a process
other than appeal”. Six months later, the Supreme Court ignored
its earlier decision and upheld an appellant’s submission that a
Bribery Tribunal established under the Bribery Act was an unconsti3
tutional body and that all proceedings before it were null and void.
Kodeeswaran v. Attorney-General, D.C.Colombo 1026/Z.
(1962) 64 NLR 93.
Piyadasa v. Bribery Commissioner, supra.
272
Shortly thereafter, one of the two Judges who participated in the
Don Anthony decision declared that he “no longer adheres to the
opinion I had formed when Don Anthony’s case was decided”.^ He
explained that “it was through a misconception” that the Court
assumed that a questioning of the power of a Bribery Tribunal to
adjudicate upon a charge of bribery involved a questioning of the
validity of the entire Act under which the tribunal was established.
He clarified that although counsel for the appellant in Don Anthony
thought he was challenging the validity of the entire legislation,
or rather that he had to make such a wholesale challenge, “he could
well have been content to challenge merely the constitution of the
particular tribunal which tried the case, on the quite narrow
ground that the persons functioning as the ‘judges’ on that tribunal
had not been duly appointed to judicial office”.
2
In Suntheralingam v. Inspector of Police, the Privy Council
refused to permit the appellant to raise an argument on vires which
he had not previously taken in the Supreme Court since “so fundamental a question as one which concerned the constitutional validity
of the 1957 Act under the ‘free exercise of religion’ provision of
the Constitution, could not be entertained in the absence of any
consideration of it by the Courts of Ceylon, and without the necessary evidence as to what is comprised in Ceylon within the phrase
‘the free exercise of religion’ “.
3
In Weerasinghe v. Samarasinghe, the brother of a detenue
held in custody under emergency regulations applied for a writ of
mandamus on the chairman of the advisory committee established under
those regulations, directing him to inform the detenue of the
grounds on which he was detained and to furnish the detenue with
such particulars as would be sufficient to enable him to make his
objections against the detention order. The petitioner also moved
for a writ of habeas corpus and submitted that the emergency regulations were invalid inasmuch as the Public Security Ordinance
under which they were made was ultra vires the power of Parliament
under the Constitution. The Court examined the constitutional
arguments and held the impugned Ordinance to be intra vires. But,
Ranasinghe v. Bribery Commissioner, supra, per H.N.G.Fernando J.
(1966) 68 NLR 361.
(1971) 74 NLR 457.
273
as the Court pointed out:
Regulation 26(10) takes away the power of this Court
to issue a writ of habeas corpus during the emergency
and that is the final answer to the application for
that writ.
In regard to mandamus, the Court pointed out that the petitioner
“has no status to make the application, because no duty is owed to
him by the chairman of the advisory committee”.
In Attorney-General v. Kodeeswaran,^ a public officer who
successfully impugned the Official Language Act in the District
Court in an action instituted against the Attorney-General for a
declaration that he was entitled to be paid an increment denied to
him because he had not passed a test in the official language, had
his action dismissed by the Supreme Court on the ground that in
Ceylon a public servant had no right to sue the Crown for recovery
of wages claimed to be due for service under the Crown.
2
In Kariapper v. Wijesinghe, the substantive question before
the Supreme Court was the validity of the Imposition of Civic
Disabilities (Special Provisions) Act in terms of which the petitioner, a Member of Parliament, forfeited his seat in Parliament.
He was one of six persons named in the schedule to the Act to whom
alone the Act applied, being persons who had previously been found
guilty of bribery by a commission of inquiry. The petitioner
brought the question before the Supreme Court by praying for a writ
of mandamus against the Clerk to the House of Representatives,
ordering him to recognise him as a Member of Parliament and to pay
him his remuneration and allowances as such member. The Privy
Council observed:
The unusual procedure which the appellant adopted to
obtain a decision upon the validity of the Act – which,
not surprisingly, has turned out to be a source of
difficulty – was followed because, strangely enough, it
seemed the only way to bring the question of the
validity of the Act directly before the Supreme Court.
But the Supreme Court and the Privy Council both felt obliged to
uphold the preliminary objection that “a person cannot ask for
mandamus against a public officer to pay him money which the latter
holds as a servant of the Crown”.. Accordingly, the procedure adopted
was considered “inappropriate”.
(1967) 70 NLR 121.
(1966) 68 NLR 529.
274
Principles of Interpretation
The Supreme Court agreed that in the interpretation of the
Constitution, special considerations had to be applied. For
instance, if the question arises whether a term in the Constitution
should be read in a narrow sense or should be given a broader interpretation, the Court should be inclined to use it in the latter
sense unless there is something in the context which militates
against such view.^ Although the Constitution had been “framed in
the light of existing legislation and the constitutional development
of the country as it existed in 1947″, it was intended to apply to
2
varying conditions brought about by later developments. Alles J
explained that “this does not mean that the meaning of the legal
expression changes, but having regard to its generic form it is
3
capable of being adapted to new situations”. He cited with approval
the language of Lord Wright who tendered the advice of the Privy
Council in James v. The Commonwealth of Australia:
It is true that a Constitution must not be construed
in any narrow and pedantic sense. The words used are
necessarily general and their full import and true
meaning can often only be appreciated when considered,
as the years go on, in relation to the vicissititudes
of fact which from time to time emerge. It is not that
the meaning of the words changes, but the changing
circumstances illustrate and illuminate the full import
of that meaning.^
But the Court was cautious. In applying the provisions of the
Constitution, a presumption was always recognised in favour of the
validity of a legislative enactment; the Court would not rule such
enactment to be ultra vires unless the invalidity was clear beyond
5
doubt. Often quoted with approval was the principle set out by
Isaacs J in Federal Comnissioner of Taxation v. Munro:
It is always a serious and responsible duty to declare
invalid regardless of consequences, what the national
Parliament, representing the whole people of Australia,
has considered necessary or desirable for the public
welfare. The Court charged with the guardianship of the
fundamental law of the Constitution may find that duty
inescapable. Approaching the challenged legislation
with a mind judicially clear of any doubt as to its
Peiris v. Perera (1968) 71 NLR 481, at 490.
Ibid., at 491.
Ibid.
[1936] AC 478.
per Alles J in Peiris v. Perera, supra. See also Sirimanne J
in Tuckers Ltd v. Ceylon Mercantile Union (1970) 73 NLR 313, at 316.
275
propriety or expediency – as we must, in order that
we may not ourselves transgress the Constitution or
obscure the issue before us – the question is: ‘Has
Parliament, on the true construction of the enactment,
misunderstood and gone beyond its constitutional
powers ?’ It is a received canon of judicial construction to apply in cases of this kind with more than
ordinary anxiety the maxim Ut res magis valeat quam
pereat. Nullification of enactments and confusion of
public business are not lightly to be introduced.
Unless, therefore, it becomes clear beyond reasonable
doubt that the legislation in question transgresses
the limits laid down by the organic law of the Constitution, it must be allowed to stand as the true expression of the national will.-*-
Another principle which the Supreme Court enunciated was that
a pronouncement upon the constitutional validity of a statute should
not be made unless a decision as to validity was essential for the
purposes of the case actually before it. H.N.G.Fernando CJ not only
2
applied this principle in Attorney-General v. Kodeeswaran, to
avoid examining the vires of the Official Language Act; in Perera v.
3
Peiris, a previous pronouncement of a Divisional Bench made twentyone years previously with which he disagreed was declared to be
obiter and made per incuriam for the reason that the attention of
that Court had not been drawn to this principle. In other words, if
a case could be decided on one of two grounds, one involving a constitutional question and the other a question of statutory construction
or general law, the Court will decide only the latter.
A third principle of general application was that in examining
an enactment with reference to any alleged constitutional invalidity,
the Court must strive to reach a conclusion which will render the
4
will of the legislature effective, or as effective as possible.
As a corollary, the Court would be entitled to sever an “offending”
provision from the remaining provisions of the Act.^
Within this threshold, the Supreme Court was willing to search
for the “pith and substance” or the “true nature and character” of
a statute, rather than adopt a “blind adherence to a strictly
(1926) 38 CLR 153, at 180.
Supra.
(1969) 72 NLR 217, at 222.
Senadhira v. Bribery Commissioner, supra; Kariapper v.
Wijesinghe, supra; Peiris v. Perera, supra; Suntheralingam v.
Inspector of Police, Kankesanturai (1970) 74 NLR 457.
Thambiayah v. Kulasingham, supra; Ismail v. Muthu Marliya
(1963) 65 NLR 431. ——– —- ——–
276
verbal interpretation”/
In considering whether a particular piece of legislation is within the permitted field it is I think
the duty of the Courts to look at the substance of
what has been done and not merely at the form which
particular subsections have taken.2
For this purpose, the Court was prepared to look at the background
to legislation, including White Papers and other matters extraneous
to the legislation itself; in other words, at the general legislative
3
scheme. The Privy Council thought that judicial notice ought to
be taken of such matters as the reports of parliamentary commissions
and of such other facts as must be assumed to have been within the
contemplation of the legislature when the impugned Act was passed:
There may be circumstances in which a statute though
framed so as not to offend directly against a constitutional limitation of the power of the legislature
may indirectly achieve the same result. In such circumstances, the statute would be ultra vires.
The fact that the legislature had no intention to violate the Constitution, or that it was beset by a grave situation and it took grave
measures to deal with it, thinking that it had the power to do so
and was acting rightly, would be irrelevant and would give no validity to Acts which infringed the Constitution/
Nevertheless, the Court was always conscious that the legislature must not be unduly hampered in the performance of its own
functions. It was prepared to look at the statute as a whole and
not at a particular section isolated from its other provisions.
It was not prepared to declare a statute void because it was said
to offend against the spirit of the Constitution/ It recognised
that the Court’s sole function was to interpret a constitutional
description of power or restraint upon power and to say whether a
given measure fell within one side of a line or on the other and
had nothing whatever to do with the merits or demerits of that
measure. When invited to say that once a provision of an Act of
Kodakkan Pillai v. Mudannayake (1953) 54 NLR 433; Meera v.
Dias (1957) 58 NLR 571; Liyanage v. The Queen, supra; Ranasinghe
v. Bribery Commissioner, supra; Walker Sons & Co Ltd v. Fry (1965)
68 NLR 73.
Tuckers Ltd v. Ceylon Mercantile Union, supra, per Tennekoon J.
Ibid., per Weeramantry J.
Kodakkan Pillai v. Mudannayake, supra. See also Senadhira v.
Bribery Commissioner, supra; Bribery Commissioner v. Ranasinghe
(1964) 66 NLR 73; Anthony Naide v. Ceylon Tea Plantation Co Ltd
(1966) 68 NIH 558.
5- Liyanage v. The Queen, supra. 6. Tuckers Ltd v. CMU, supra.
Kartapper v. W i j e s i n g h e , supra.
277
Parliament had been declared to be ultra vires, the Court would
not again review the correctness of its previous decision, H.N.G.
Fernando CJ emphasized that:
If accepted, the proposition will tend to place the
Judiciary in a position of obstructive opposition
to the Legislature, which is not the position which
the Judiciary in my understanding occupies under
our Constitution.
These then were the rules of interpretation which the Supreme
Court would apply to a statute which was alleged to have infringed
a group right protected by the Constitution. It was not a daringly
assertive approach; nor was it unduly conservative. The Court was
prepared to enforce the provisions of the Constitution in a manner
which would not seriously disrupt the orderly conduct of governmental business.
Enforcement of Fundamental Rights
Freedom of Religion
Section 29(2) (a) of the Constitution provided that no law
shall prohibit or restrict the free exercise of any religion, while
section 29(2)(d) provided that no law shall alter the constitution
of any religious body except with the consent of the governing
authority of that body. To the extent that Parliament’s legislative
power was thus limited, freedom of religion was protected. The
Prevention of Social Disabilities Act, No.21 of 1957, sought to
prevent, particularly in the northern province, the imposition of
social disabilities on persons by reason of their caste. Any person
who imposed any social disability on any other person on the ground
of such other person’s caste was guilty of an offence punishable
with imprisonment or fine (s.2). A person was deemed to impose a
social disability on any other person if he, inter alia:
prevents or obstructs such person, being the follower
of any religion, from or in entering, being present in,
or worshipping at any place of worship to which followers of that religion have access (s.3(b)).
Entry into the Hindu temple at Maviddapuram had always been
determined by usage and custom. Accordingly, Hindus of inferior
castes were denied entry into or beyond the inner courtyard and
worshipped only from outside. Attempts by them to secure religious
Perera v. Peiris (1969) 72 NLR 217, at 223.
278
equality with Hindus belonging to higher castes invariably led to
violent caste confrontations. On 1 July 1968, C.Suntheralingam,
a former professor of mathematics and ex-cabinet minister, acting
with the authority of the high priest, prevented one Sinniah, also
a Hindu by religion but socially of a lower caste, from entering
the inner courtyard for the purpose of worshipping. He was charged
with, and convicted of, an offence under section 2 (read with
section 3(b)), of the Prevention of Social Disabilities Act.
On appeal, Suntheralingam argued that his intervention was
necessary to prevent defilement of the temple by the entry of a
person of low caste; if there had been such defilement, poo j as could
not thereafter be performed in that temple. Accordingly, he argued
that section 3(b) had the effect of altering the constitution of a
religious body. This submission appeared to have been misconceived.
As H.N.G.Fernando CJ pointed out:
The question whether some person may or may not enter,
or be prevented from entering, premises controlled by
a religious body, is not one which relates to the
‘constitution’ of that body. Section 29(2)(d) would,
in my opinion, apply only to a law which purports to
alter the mode by which a religious body is elected,
appointed or otherwise set up, or to comnit any power
or function of such a body to some other person, or to
change the principles governing the relationship inter
se of members of the body.l
But did section 3(b) constitute a restriction on the free
exercise of the Hindu religion in accordance with its usages and
customs by requiring high-caste Hindus to kneel and pray on the same
courtyard with those of inferior castes ? A “religion” is not merely
a doctrine or belief; it includes rituals and observances, ceremonies
2
and modes of worship. Therefore, if the mode of worship at Maviddapuram temple, as regulated by usage and custom, entitled only
high caste Hindus to enter the inner courtyard, would not the insistence on the entry of Hindus of inferior castes to that inner courtyard restrict the free exercise of religion in that temple ?
Amerasinghe submits that a provision similar to section 3(b) would
be in keeping with the needs of public morality and should be regarded as outside the prohibition of section 29(2) (a) on the basis that
Suntheral ingam v. Herat (1969) 72 NLR 54, at 55.
Commr. ,H.R.E.,Madras v. Swamiar, AIR 1954 SC 182, at 290.
279
there is implied in the latter section a power of Parliament to
interfere with the exercise of religion in the interests of public
order, morality and health.’*’ But whether such an implied power
ought to have been read into section 29(2) (a) which was a midtwentieth century enactment in clear and absolute terms, on the
authority of the interpretation placed by the United States Supreme
Court on the American Constitution which contains one of the
earliest formulations of fundamental rights, or whether the “free
exercise of religion” meant that
with man’s relations to his Maker and the obligations
he may think they impose, and the manner in which an
expression shall be made by him of his belief on those
subjects, no interference can be permitted,2
were questions which were not judicially examined or pronounced upon
since Suntheral ingam’s belated attempt to base an argument on section
29(2)(a) at the final stage of appeal was disallowed by the Privy
Council.
Freedom from Discrimination
Sections 29(2)(b) and (c) prohibited Parliament from conferring
any privilege or advantage, or from imposing any disability or restriction, on persons of any community or religion, which was not
conferred or imposed on persons of other communities or religions.
To the extent that Parliament was thus limited in the exercise of
its legislative power, freedom from discrimination was sought to be
achieved. These two provisions were invoked only in respect of the
three subjects which are examined below.
Citizenship and Franchise. At Independence, persons living
in Ceylon were either British subjects or aliens. At the first
general election conducted under the 1946 Constitution, which preceded Independence by approximately six months, a British Subject
who had reached the age of twenty-one years and who had resided in
an electoral district for a continuous period of six months in the
immediately preceding eighteen months, was entitled to vote in that
electoral district:
a) if he was domiciled in Ceylon: in the case of a person who did
not possess a Ceylon domicile of origin, domicile was deemed to
have been acquired by a total period of five years’ residence; or
C.F.Amerasinghe, The Doctrines of Sovereignty and Separation
of Powers in the Law of Ceylon (Colombo: Lake House Investments Ltd,
1970), pp.47-8.
Davis v. Beason, 133 US 333, at 342, per Field J.
280
b) if he satisfied a basic literacy and property qualification; or
c) if he was in possession of a certificate of permanent settlement
which was issued upon proof that a person had been continuously
resident in the island for a period of not less than five years
(exclusive of temporary absences not exceeding a total of eight
months during such period) with intent to settle therein or was
permanently settled.
These enabling provisions were contained in sections 4, 5, 6 and 7
of the Ceylon (Parliamentary Elections) Order in Council 1946.^
They were applied, for the purpose of determining the electorate,
on a total population comprised as follows:
TABLE 23
TOTAL POPULATION 1946
Race Population Percentage
Low Country Sinhalese 2,903,000 43.6
Kandyan Sinhalese 1,718,000 26.0
Indian Tamils 781,000 11.7
Ceylon Tamils 734,000 11.0
Burghers and Eurasians 42,000 0.6
Indian Moors 36,000 0.5
Malays 23,000 0.4
Others (including Europeans
and Veddhas) 49,000 0.6
Total 6,657,000 100.0
Source: Panasirgjne, A.G., Census of Ceylon 1946 (Colombo: Government
Press, 1951).
Of the major communities resident in Ceylon, the Indian Tamils
were the most recent in origin. Their presence was inextricably
linked with the plantation economy of the country.
Plantations organised on rational economic lines generally
called for a regular and disciplined labour force to prepare the land for the crop, to nurture it, and to gather
it. To the vast majority of the Sinhalese, being proletarian workers of this sort was unpalatable. Such an occupat1. Government Gazette, 26 September 1946. For relevant extract,
see G.P.S.H.de Silva, A Statistical Survey of Elections to the Leglatures of Sri Lanka 1911-1977 (Colombo: Marga Institute, 1979),pTl5.
281
ion carried low status in the Sinhalese value system
. . . The wage inducements offered by the planters
were rarely sufficient to overcome their aversion to
serving as mere hired labourers. At the outset, however, during the period dating from about 1820s to
the early 1840s, the coffee planters were able to
employ some local labour, both that of Kandyan Sinhalese and that of migrant low-country Sinhalese. But
it was fitful in supply. And this meagre supply soon
petered out. [Therefore] for their regular cropbearing and crop-gathering labour force, the planters
began, for the most part, to look to South India.-*-
At first, the South Indian estate labourers were migrants rather
than inmigrants. The maximum supply of labour was needed only during
the two-to-four month coffee harvest season; at other times, the
plantations needed only one-half to one-third the labour force.
With the rapid decline of the coffee industry and the establishment
of tea plantations which required a constant supply of labour
throughout the year, the Indian population increased to approximately 123,000 by 1871, 195,000 by 1881, and 235,000 by 1891.
By that stage, if not earlier, some of the labourers
were tending to settle down. More women were joining
the inflow. The economy was buoyant. There was reason
to turn immigrant.^
The importation of South Indian labour continued into the twentieth
century and throughout the first three decades of that century, during
which instead of seasonal arrivals, the trend was towards permanent
4
or semi-permanent settlement.
If the influx of South Indian labour upset the equilibrium of
Ceylonese society in the central highlands by introducing a foreign
element that either refused or failed or was not permitted to
assimilate, the opening of large and extensive plantations also
created other problems. Through legal devices, such as the Crown
Lands Encroachment Ordinance No. 12 of 1840, the Temple Lands
Registration Ordinance No.10 of 1856, the Partition Ordinance No.10
of 1863, and the Grain Tax, vast tracts of land were placed at the
disposal of British planters, and the Kandyan peasantry was either
hemmed in or forced out to the periphery of the expanding plantations.^
Michael Roberts, “Export Agriculture in the Nineteenth
Century”, History of Ceylon, at p.98.
Ibid., at 100.
Ibid., at 101.
Ibid.
For a detailed account, see Michael Roberts, “Land Problems
and Policies, C.1832-C.1900″, History of Ceylon, Vol.3, pp.119-145.
282
The plight of the peasant was expressed very graphically by Hector
Kobbekaduwa, himself a Kandyan, when he introduced the Land Reform
Bill in the National State Assembly:
To the peasant the presence of the White Sahib in his
neighbourhood was an earthquake in his life. It was
an era of living horror. The heart of the village
became bits of merry England. Secured with gates and
fences, armed with guns and bullets and with horses
and whips, the White Sahib became a king and acted on
the maxim that the king can do no wrong. He denied
access to the villager and on anyone who trespassed
was inflicted the most brutal punishment. Government
servants were at his beck and call and they trembled
in his presence. The White Sahib lived a life of noisy
debauchery in our country and the neighbouring villages were repositories of his excess sensuality and
are today living monuments of European bastardy.^
The problems created by the importation of South Indian labour,
whether social, economic or political, were equally sensitive and
emotional. They survived until Independence. As Kobbekaduwa wasto exclaim, as recently as 1975:
With political agitation in 1931 and with universal
franchise, the constitution makers thought that the
inarticulate peasantry should have their own representatives. But unfortunately in the hill country,
the change was from clay to fire. The Peri Sunderams,
Vythial ingams, Natesa Iyers and Fell owes-Gordons,
and later the Thodamans and Jesudasans and other
political adventurers, were swept into power in our
areas through the Indian votes. It was a hopeless
situation for us. We screamed for justice. Our appeal
fell on deaf ears and our written petitions went
into the dust b i n s . ^
He was referring to the 1947 general election. At that
election, of a total electorate of 3,048,145 (of whom, 211,915
were Indians resident on estates), 1,887,364 voted to elect 95
members to the first House of Representatives. The distribution
of seats by communities was as follows:
Sinhalese … 68
Ceylon Tamils … 13
Indian Tamils … 7
Muslims … 6
Burghers … 1
The votes polled and the candidates returned by the political
1.National State Assembly Debates, 10 October 1975.
2.Ibid.
283
parties are indicated in Table 9.^ A closer analysis of those
figures is more revealing. The 211,915 registered Indian Tamil
voters constituted more than 10 per cent of the total number of
voters in as many as 28 electorates. In six of them, essentially
Kandyan electorates, where the Indian Tamils accounted for more
than 50 per cent, all but one returned candidates of the Ceylon
Indian Congress. In the remaining twenty-two Sinhalese constituencies, the Indian Tamil vote helped to elect fifteen leftwing opposition members (six LSSP, one BLP, one CP, one CIC and
six Independents) as against eleven who eventually supported the
UNP Government (eight UNP, one LP and two Independents):
TABLE 24
IMPACT OF INDIAN TAMIL VOTE
AT 1947 GENERAL ELECTION
Electorate Percentage of
Indian Tamil
voters
Party elected
Talawakele 79.5 CIC
Maskeliya 60.6 CIC
Nuwara Eliya 59.0 CIC
Haputale 57.0 UNP
Kotagala 53.6 CIC
Mawalapitiya 51.1 CIC
Badulla 42.2 CIC/LSSP
Bandarawela 26.6 Ind.
Gampola 26.1 UNP
Minipe 25.6 Ind.
Balangoda 23.8 UNP
Maturata 22.9 UNP
Alutnuwara 21.1 Ind.
Gal aha 18.4 UNP
Dehiowita 18.0 LSSP
Matale 17.9 Ind.
Niwitigala 17.7 LSSP
Ruwanwella 17.2 LSSP
Welimada 17.1 Ind.
Colombo Central 15.6 LP/UNP/CP
Dambulla 13.8 Ind.
Buttala 13.0 UNP
Agalawatte 12.2 LSSP
Kiriella 12.2 LSSP
Matugama 11.5 Ind.
Mannar 10.8 Ind.
Colombo South 10.6 UNP/BLP
Kandy 10.4 UNP
Supra, p.50.
284
It is against this background that the laws relating to citizenship and franchise were enacted.
The Citizenship Act, No.18 of 1948, which received the Royal
Assent on 21 September 1948, created the status of citizen of
Ceylon which could be acquired by right of descent or by virtue of
registration in the following manner:
A person b o m in Ceylon before the appointed date (15 November
1948) was a citizen by descent if –
(a) his father was b o m in Ceylon, or
(b) his paternal grandfather and paternal great-grandfather
were b o m in Ceylon.’*’
A person b o m outside Ceylon before the appointed date was a
citizen by descent if –
(a) his father and paternal grandfather were born in Ceylon, or
(b) his paternal grandfather and paternal great-grandfather
2
were b o m in Ceylon.
A person b o m in or outside Ceylon on or after the appointed
date was a citizen by descent if at the time of his birth his
3
father was a citizen of Ceylon.
A person may be registered as a citizen if –
(a) he is of full age and of sound mind, and
either (b) his mother is or was a citizen by descent or would
have been if she had been alive on the appointed
date, and
(c) he, being married, has been resident in Ceylon
throughout the immediately preceding seven years,
or being unmarried, has been so resident for a
period of ten years
or (d) he is the spouse or the widow or widower of a
citizen, and
(e) he has been resident in Ceylon throughout the
immediately preceding one year;^
or (f) he is a person who ceased to be a citizen by descent
upon acquiring citizenship of another country and
has thereafter renounced that citizenship;^
S.4(1) 2. S.4(2).
S.5, provided that such birth is registered at the appropriate
consular office or at the office of the Minister in Ceylon.
S.11(1)(b). For further enabling provisions, see s.4 of the
amending Act, No.40 of 1950.
Ibid. 6. Ibid. Repealed by Act No.40
of 1950.
285
or (g) he is a person who has rendered distinguished public
service or is eminent in professional, commercial,
industrial or agricultural life, but is otherwise
ineligible to apply for citizenship by registration ;”*■
and (h) he is, and intends to continue to be, ordinarily
resident in Ceylon.
The citizenship law was extremely rigid. Firstly, there was
no provision for citizenship to be acquired by birth within the
country. The Constitution of India which came into force on 26 January 1950 but which was being drafted at the same time as the
Citizenship Act, contained the following provision:
At the commencement of this Constitution, every person
who has his domicile in the territory of India and –
(a) who was b o m in the territory of India; or
(b) either of whose parents was b o m in the territory
of India; or
(c) who has been ordinarily resident in the territory
of India for not less than five years immediately
preceding such commencement,
shall be a citizen of India.
Such a provision, if incorporated in the Citizenship Act, would have
granted the status of citizen of Ceylon to practically everyone who
enjoyed the franchise at Independence. Secondly, the concept of
“Commonwealth Citizen” was not recognised as it is today in most
Commonwealth Constitutions. No distinction was drawn between
citizens of other Commonwealth countries, including India and Pakistan, and aliens, and an equally stringent and almost insurmountable
barrier was placed in the way of such persons seeking citizenship
by registration. Finally, while the status of a citizen of Ceylon
was accorded to a citizen by descent as well as a citizen by registration, the latter was a less secure category than the former. For
instance, a citizen by registration who had renounced his citizenship
was not entitled to resume his citizenship; he also ceased to be a
citizen if he resided outside Ceylon (except for certain specified
purposes) for five consecutive years. Additionally, citizenship by
registration might be terminated by the Minister in specified circumstances . ^
S.12. 2. Art.5.
Ss.8, 23, 24. For other differences between the two categories
of citizens, see L.L.T.Peiris, The Citizenship Law of the Republic of
Sri Lanka (Colombo: Dept, of Govt. Printing, 1974), pp. 45-46.
286
W.T.Jayasinghe, who was for many years Secretary of the ministry
in charge of citizenship, conceded the stringency of the qualifications for Sri Lankan citizenship, but adds:
This was inevitable in the context of the special
political situation confronting Sri Lanka. It must
be kept in mind that Sri Lanka had to deal with the
special problem arising from the Indian immigrant
labour, who constituted as much as one-eighth of
the total population of the Island.1
L.L.T.Peiris, a former assistant secretary in the citizenship division of the ministry, is of the same view:
The restrictive nature of the Ceylon law is attributable to the fact that, at the time the Act was
passed, nearly one million persons living in Ceylon,
out of the total population of approximately ten
million, were persons who had immigrated to Ceylon
in recent times and their absorption would have
adversely affected the interests of the indigenous
population. It was apparently for this reason that
no provision was made for the acquisition of citizenship by birth and acquisition by descent was
restricted to persons who could show their ties
with the country for at least two generations.^
It is clear, therefore, that the Citizenship Act was designed to
exclude from its purview as many of the persons of Indian origin
living and working in Sri Lanka as was possible.
The Indian and Pakistani Residents (Citizenship) Act, No.3 of
1949, received the Royal Assent on 28 February 1949 and was brought
into operation on 15 August 1949. It resulted from discussions
held between the Prime Ministers of Ceylon and India and was described in its long title as “An Act to make provision for granting the
status of a citizen of Ceylon by registration to Indians and Pakistanis who have the qualification of past residence in Ceylon for a
certain minimum period”. The main requirements for the grant of
citizenship under this Act were:
(a) the applicant should be of Indian or Pakistani origin and have
3
emigrated therefrom and permanently settled in Ceylon;
W.T.Jayasinghe, Tamils in Sri Lanka (Colombo: Dept, of Govt.
Printing, 1976), p.14.
Peiris, The Citizenship Law, supra, at p.6.
The rigour of this requirement was to a great extent minimised
by the Supreme Court which held that although the concept of “permanent settlement” involved two elements – the fact of residence and
the intention permanently to remain in Ceylon – the requisite intention was satisfactorily established by the applicant’s positive
287
(b) the applicant, if married, should have been uninterruptedly
resident in Ceylon since 1 January 1939, or if married, since
1 January 1936. Resident in Ceylon, notwithstanding occasional
absence, was deemed to have been uninterrupted only if such
absence did not on any one occasion exceed twelve months in
duration;
(c) in the case of a married male applicant, his wife and minor
children, if any, should also have been ordinarily resident
in Ceylon;
(d) the applicant should have possessed an assured income of a
reasonable amount or had some suitable business or employment
or other lawful means of livelihood; and
(e) the application should have been made within the period of two
years specified, i.e. between 15 August 1949 and 14 August 1951.
Although about 90 per cent of the Indian estate population applied
for registration under this Act, only 134,316 were granted citizenship; 975,000 remained “stateless”.^
The coup de grace was administered by the Ceylon Parliamentary Elections (Amendment) Act, No.48 of 1949 (hereinafter
referred to as the “Franchise Act”), which received the Royal Assent
on 24 November 1949. It provided that only a citizen of Ceylon
shall be entitled to the franchise. As Gratiaen J observed, this
Act “had the effect of disfranchising many Indian Tamils (and
indirectly their descendants) in spite of their long residence in
Ceylon”.^
In July 1951, a revising officer appointed under the Franchise
Act upheld a submission made on behalf of an Indian Tamil that both
the Franchise and Citizenship Acts were invalid as offending against
section 29(2) of the Constitution. In September of that year, in
3
the case of Mudannayake v. Sivagnanasunderam, the Government
brought before the Supreme Court the order of the revising officer
decision to claim registration with a “clear understanding” of its
implications. Once the practical tests prescribed by the Act had
been satisfied, it was not necessary to decide inferentially
whether or not the applicant might be presumed to have acquired a
domicil of choice in Ceylon: per Gratiaen J in Duraiswamy v. Commissioner for Registration of Indian and Pakistani Residents (1955)
56 NLR 313.
Jayasinghe, Tamils, supra, pp.14-15.
Duraiswamy, supra, at 316.
X1951) 53 NLR 25.
288
and sought, by way of certiorari, to have it quashed. As the bench
of three Judges observed in their judgment, Mthe substantial question” to be decided was whether the Franchise Act read with the Citizenship Act, “is void as offending section 29” of the Constitution.
It would be void only if it discriminated against or in favour of
one community to the exclusion of the other communities in the
island. It was not disputed that the Indian Tamils were a contemplated “community”; nor that the Citizenship Act conferred a “privilege” or an “advantage” on those who are or became citizens of Ceylon.
The Supreme Court rejected as irrelevant three affidavits
tendered on behalf of the Indian Tamil, Kodakkan Pillai, which dealt
with the history of Indian immigration into Ceylon and the position
of Indian residents under the two impugned statutes. In the view
of the Court, the substance or the true nature and character of a
statute ought not to be searched for among State papers and other
political documents when the language of the statute was clear and
unambiguous and could speak for itself. Accordingly, the Court held
that the two statutes in question did not upon their faces make the
Indian Tamil community liable to any disability to which other
communities were not liable. Jayatilleke CJ observed thus:
When the language of sections 4 and 5 is examined it
is tolerably clear that the object of the legislature
was to confer the status of citizenship only on persons who were in some way intimately connected with
the country for a substantial period of time. With
the policy of the Act we . are not concerned, but we
cannot help observing thatit is a perfectly natural and
legitimate function of the legislature of a sovereign
country to determine the composition of its nationals.
. . . Can it be said that these two provisions, the
words of which cannot in any shape or form be regarded
as imposing a communal restriction or conferring a
communal advantage, conflict with section 29 of the
Constitution ? This is the simple question for our
decision. 1
Did the Court direct itself properly when it reduced the
“substantial question” for decision down to such simple terms ?
The legislative power of Parliament was limited by section 29(2)
of the Constitution. Therefore, if, as the Court found, the object
of the Citizenship Act was to confer the privilege of citizenship
Ibid., at 44.
289
only on persons who were able to establish an intimate connection
with the country “for a substantial period of time”, it is submitted
that the relevant question the Court should have asked itself was
whether that requirement would result in making persons of any
community already resident in the country liable to a disability
to which persons of other communities were not made liable; if it
did, for the reason that a particular comnunity would not have been
able to establish the specified two-generation link with the country,
section 29(3) required that provision of law to be invalidated. It
would be naive to expect the answer to that question to be apparent
on the face of the law.
The Supreme Court asked:
When an enactment is put into force one community may
be affected by it more adversely than another. A high
income or property qualification may affect more adversely the voting strength of one community than another. Would that be discrimination ?-*■
It is submitted that if the high income or property qualification
had the effect of excluding persons of one community from the electoral register, it would indeed be discriminatory. In fact, in this
case, the record contained an uncontradicted affidavit to the effect
that:
The vast majority of the present Indian immigrant
population came to Ceylon long after the year 1852
and though a large number of the members of the community have been b o m in Ceylon yet their parents were
not b o m in Ceylon. In the case of the Indian community, unlike in the case of the Sinhalese and the
Ceylon Tamil communities, the fathers of the persons
who belong to this community have not been b o m in
Ceylon as immigration of Indian labour commenced only
in 1852. Hence the Ceylon Citizenship Act while it
confers the status of a Ceylon citizen on all members
of the Sinhalese and Ceylon Tamil communities fails
to confer that status on by far the vast majority of
the members of the Indian community settled in Ceylon,
But the Supreme Court thought that:
To embark on an inquiry, every time the validity of
an enactment is in question, into the extent of its
incidence, whether for evil or for good, on the various communities tied together by race, religion or
caste, would be mischievous in the extreme and throw
the administration of Acts of the legislature into
confusion.
However inconvenient individual Judges may have found that task,
Ibid., at 46.
Ibid.
290
section 29(2) required the Supreme Court, when its jurisdiction was
properly invoked, to embark on precisely such an inquiry and to
determine whether a law made persons of one community liable to a
disability or restriction to which persons of other communities were
not made liable. For that purpose, if it was necessary to do so,
the Court should have travelled outside the language of the impugned
statute and taken evidence as to whether or not, in its ultimate
effect, it was of a discriminatory character. But Jayatilleke CJ
thought that to do so would be “a fundamental error”. Instead, he
simply looked at the face of the statute and concluded that:
the facts which qualify or disqualify a person to be
a citizen or voter have no relation to a community as
such but they relate to his place of birth and to the
place of birth of his father, grandfather or great
grandfather which would equally apply to persons of
any community.
On appeal, the Privy Council looked for the “pith and substance”
or the “true character” of the impugned statutes. When read along
with the Indian and Pakistani Residents (Citizenship) Act, the Privy
Council thought that the three statutes constituted a “legislative
plan”, and when that plan was looked at as a whole it was evident
that “the legislature did not intend to prevent Indian Tamils from
attaining citizenship provided that they were sufficiently connected
with the Island”. The Privy Council asked the question whether what
was before it was legislation on citizenship or legislation intended
to make and making Indian Tamils liable to discrimination to which
other communities were not liable, and answered thus:
It is . . . a perfectly natural and legitimate function
of the legislature of a country to determine the composition of its nationals. Standards of literacy, of poverty, of birth or of residence are as it seems to their
Lordships standards which a legislature may think it
right to adopt in legislation on citizenship and it is
clear that such standards though they may operate to
exclude the illiterate, the poor and the immigrant to
a greater degree than they exclude other people do not
create disabilities in a community as such since the
community is not bound together as a community by its
illiteracy, its poverty or its migratory character but
by its race or its religion. The migratory habits of the
Indian Tamils are facts which in their Lordships opinion
are directly relevant to the question of their suitability as citizens of Cpylon and have nothing to do with
them as a community.
It is true that neither the “illiterate” nor the “poor” constitute
Kodakkan Pillai v .Sivagnanasunderam (1953) 54 NIH 433, at 439.
291
a community within the meaning of section 29. But a community may
well be identified by its migratory character. In Ceylon, in 1948,
what distinguished the Indian Tamil comnunity from the other resident communities, were primarily its migratory habits. Yet, as
the Supreme Court held, the Indian Tamils were a contemplated
community, entitled to the protection of section 29, notwithstanding
its migratory character. Therefore, if a law conferred a “privilege” or “advantage” only upon the existence of certain facts, and
those facts were incompatible with migratory habits, would not that
privilege or advantage be denied to a community which was essentially
migratory in character ?
It would appear that both Courts were unduly influenced by
the fact that the impugned legislation related to citizenship of a
newly independent country. But it is precisely in respect of such
vital matters that a community requires to be protected against
discriminatory treatment. On this occasion, both Courts failed to
accord that protection and thereby rendered nearly a million people
stateless.
Immigration. The Immigrants and Emigrants Act, No.20 of
1948, which received the Royal Assent on 6 October 1948 and came
into operation on 1 November 1949 (the appointed date), in effect,
prohibited the entry of a non-citizen into Ceylon unless he had in
his possession a passport and a visa or a residence permit.
Residence permits were of two categories: permanent residence
permits for indefinite periods and temporary residence permits for
definite periods exceeding six months.^ Section 14(3)(b) declared
that:
No temporary residence permit shall be refused in the
case of a person who, being a British subject, was
ordinarily resident in Ceylon for a period of at least
five years immediately preceding the appointed date.
The Immigrants and Emigrants (Amendment) Act, No. 16 of 1955, repealed
the entirety of section 14 and substituted for it a new section
which provided only for the issue of visas to persons seeking to
enter Ceylon. A visa would ordinarily be granted for a period not
exceeding two years, but could, with the approval of the Minister,
be granted for up to five years. The amending Act contained no
provision of any description corresponding to section 14(3)(b).
S.14.
/
292
In Meera v. Dias,^ an Indian Tamil who, having held a temporary
residence permit for several years was denied an extension in
February 1956, challenged the validity of the amending Act on the
ground that it imposed upon the “Indian community” a disability to
which members of other communities were not made liable or conferred
on members of other communities a privilege not conferred on the
members of the Indian community.
H.N.G.Fernando CJ examined the “pith and substance” of the
amending Act and found that:
The Legislature has controlled the entry into Ceylon
of non-citizens by a system of visas, conferring on
an executive authority the discretion to refuse an
entry document. The discrimination, if any, therefore, which ensues from the legislation is a discrimination between citizens and non-citizens, a feature
not in any way rare in legislation of a similar type
enacted by other Sovereign Legislatures. If it was
proper for the Legislature of Ceylon to deny the
franchise to non-citizens, it clearly follows that
it was not improper for the same Legislature to deny
rights of entry to non-citizens. Indeed . . . the
Legislature is free to confer rights or privileges
exclusively on citizens or to impose restrictions or
disabilities applicable solely to non-citizens.^
Section 14(3) (b) of Act No.20 of 1948 must be viewed in the
context of the Citizenship Act which preceded it by two weeks.
Having prescribed the qualifications for citizenship, the legislature conferred a right of residence on “British subjects” who had
been “ordinarily resident” in Ceylon from prior to November 1944.
This meant that those ordinarily resident in the country who did not
qualify for citizenship acquired the right to continued residence.
In 1955, at the time of the repeal of this section, it must have
been a matter of common knowledge that the beneficiaries of the
right conferred by section 14(3) (b) were primarily the members of
the Indian Tamil community who had failed to satisfy the stringent
requirements for citizenship. Accordingly, when that section was
repealed, Parliament in effect denied that community alone the
right to reside in Ceylon; a right which other communities
continued to enjoy by virtue of citizenship. Section 29(2) of the
Constitution did not contemplate “citizens” and “non-citizens”; it
!• (1957) 58 NIR 571
Ibid., at 573.
293
sought to protect certain rights of “communities” and “religions”,
whether they be citizens or not. Therefore, it is submitted that
H.N.G.Fernando J, acting within the constraints imposed by the
Privy Council in Kodakkan Pillai, erred when he held that the
legislature was free to impose restrictions or disabilities applicable solely to non-citizens.
Language. The Official Language Act, No.33 of 1956, which
received the Royal Assent on 7 July 1956, provided that the Sinhala
language shall be the one official language of Ceylon. Where, however, the Minister considered it impracticable to commence the use
of only the Sinhala language for any official purpose immediately,
the language hitherto used for that purpose, namely English, was
authorised to be so used until the necessary change was effected
not later than 31 December 1960. The Minister was authorised to
make regulations for the purpose of giving effect to the principles
and provisions of the Act. No such regulations were made, but a
Treasury Circular No.560 issued on 4 November 1961 provided, on pain
of suspension of increment falling due, that public officers must
pass three proficiency tests in Sinhala.
Kodeeswaran, a Tamil, had been appointed to the General
Clerical Service in 1952. In 1959, he was promoted to the executive
class of that service on a salary scale of Rs. 1,600 to Rs.3,780 per
annum with annual increments of Rs.120. In terms of the relevant
minute, he was required to pass a proficiency test in one national
language before proceeding beyond the stage of Rs.3,180; he had the
option of choosing his own language, Tamil, for this examination.
An increment of Rs.10 per month fell due on 1 April 1962, but was
not paid since he had not presented himself for the Sinhala examination in which he was required to qualify by the new Treasury
Circular No.560. Kodeeswaran thereupon instituted an action in the
District Court of Colombo seeking a declaration that the new Circular
was unreasonable and/or illegal and not binding on him, and that he
was entitled to payment of the increment which fell due on 1 April
It was submitted on his behalf that the Official Language
Act was ultra vires on the ground that in enacting it Parliament
had transgressed the prohibition against discrimination contained
in section 29(2) of the Constitution, and that accordingly, the
Circular which was issued to implement that Act and which purported
294
to vary the existing terms of his appointment was also void and
ineffective to disentitle him to the increment to which he would
have been entitled under those terms. The Attorney-General raised
a preliminary issue, viz. whether a public servant had any right
of action against the Crown for salary due in respect of services
which he had rendered. The District Judge decided the preliminary
issue in favour of the plaintiff.
The Crown argued, as it did in respect of the Citizenship
Act, that it is the legitimate exercise of the function of a State
which is independent to decide what its official language should be
and that it is perfectly fair in making that decision to choose the
language spoken by the overall majority of persons in the country.
The District Judge rightly pointed out that if that decision involved the passing of an Act, then whether the Act was valid or not in
law depended on whether it did or did not offend section 29 “subject
to which safeguard independence was given and received”.^
To the submission that a community was not bound together by
its literacy or illiteracy, but by its race or religion, the Judge
pointed out that in Ceylon the language of the Sinhalese community
was Sinhala; the language of the Tamils, Moors and Malays and Indians
was Tamil; and the language of the Burghers and Europeans was English:
Now if the members of each community were able to speak,
read and write the language of each of the other communities, then it is obvious that the selection of the
language of one community as the official language . . .
could not cause any handicap to the members of the
communities whose language was not chosen, however much
they resented the fact that their own language was not
given pride of place. But every community in Ceylon is
not literate in the language of the other communities,
and . . . the selection of the language of one community
must cause at least inconvenience, if not disability,
to the communities who are not literate in that particular language.
He referred to the evidence:
We have the uncontradicted evidence of Mr.Thondman that
the cases of Indian Tamils able to read and write Sinhala
are so few that they may be regarded as exceptional.
We have the uncontradicted evidence of Mr.Seyd Mohamed
It is interesting to note this reference by De Kretser DJ
on 25 April 1964. It was on 5 May 1964 that Lord Pearce made the
controversial obiter dicta (supra,p.65) that s.29(2) “represent the
solemn balance of rights between the citizens of Ceylon, the fundamental conditions on which inter se they accepted the Constitution
295
that in the Muslim communities in Batticaloa no one
knows Sinhala, and we have the evidence of Mr.Sivasithamparam of the difficulties the Tamil people in
the North have when a communication comes to them
in Sinhala and recourse has to be had to the Sinhalese baker to understand what it is all about for
no one else there is able to read or write Sinhala.
Nr.Nesiah, whose evidence is uncontradicted, gives
evidence that the handicap of having to use a language other than the one which is one’s mother
tongue is one that is never overcome . . . Where one
is not a linguist, the difficulties of trying to
learn a language after one has grown to man’s estate
in order to compete with men who have known the
language all their lives is manifest.
On the face of the statute, the Official Language Act did not
confer an advantage on any community which it denied to others. But,
as the Privy Council pointed out in Kodakkan Pillai, there may be
circumstances in which legislation though framed so as not to offend
directly against a constitutional limitation, may indirectly achieve
the same result. While an Act declaring an official language may
seem quite innocuous, the circumstances that obtain in the country
at the relevant time may operate to place one community at an advantage over the others. As De Kretser DJ noted:
At the time it was passed one has to presume that
those voting for it were aware of the numbers literate in Sinhala among the Sinhalese and among the
non-Sinhalese communities. They must be presumed to
know that those literate in Sinhala were going to
have a tremendous advantage in at least the matter
of appointments and promotions in the public service
over those who were not. They had to know that overnight the hitherto efficient non-Sinhalese officer
would lose his value while even the otherwise inefficient Sinhalese officer would have his utility
value doubled. They had to know that Sinhala is the
language of the Sinhalese community which had an
overall majority in numbers over all other communities.
It is hard to resist the correctness of the submission that under the cloak that it was a legitimate
function for a Parliament to decide in what language the official business should be carried on and
that in making that decision the language spoken by
and these are therefore unalterable under the Constitution”. De
Kretser was of the view that s.29 was included in the Constitution,
on the initiative of the Board of Ministers, because, as the Soulbury Commission pointed out, “the near approach of the complete
transference of power and authority from neutral British hands to
the people of this country is causing in the minds of the Tamil
people, in common with other minorities, much misgiving and fear”.
296
the largest number of people should be the choice,
a legislative act has been passed which gave advantage to one community which the others did not
have, for the purpose of an Act must be found in
its natural operation and effect.
Accordingly, he held that the Official Language Act was ultra
vires section 29(2) of the Constitution.^
On appeal, a bench of two Judges of the Supreme Court
confined its attention to the preliminary issue and held that a
public servant in Ceylon had no right to sue the Crown for the
2
recovery of his wages. The Court did not call upon the Attorney-General to submit his arguments on the question of the validity
of the Official Language Act, a question of “extraordinary importance and great difficulty” which would warrant reference to a
3
bench of five or more Judges. H.N.G.Fernando CJ explained that
if a case could be decided on one of two grounds, one involving a
constitutional question and the other a question of statutory construction or general law, the Court will decide only the latter.
On further appeal, the Privy Council reversed the Supreme Court
decision on the preliminary issue.^ But the Board too heard no
argument and expressed no view upon any of the other issues
raised in the action and dealt with in the judgment of the District
Judge. As Lord Diplock explained, “They would not think it proper
to do so without the assistance of the considered judgment of the
Supreme Court”.^ Consequently, an authoritative decision on this
question was never given. In May 1972, the impugned Act was
incorporated in the new Constitution. Kodeeswaran himself was
compensated by the new Republic, whereupon he discontinued his
litigation against the State.
Right to an Independent and Impartial Tribunal
The right to an independent and impartial tribunal was
protected by the provisions of Part VI of the Constitution. In
particular, section 52 provided that Judges of the Supreme Court
shall hold office during good behaviour; that their salaries shall
not be diminished; and that they shall not be removable except by
The judgment of the District Court is not reported.
Attorney-General v. Kodeeswaran (1967) 70 NLR 121.
Ibid., at 139.
Kodeeswaran v. Attorney-General (1969) 72 NLR 337.
Ibid., at 339.
297
the Governor-General on an address of the Senate and the House of
Representatives. In Senadheera v. Bribery Commissioner,^ Sansoni J
recalled that Lord Atkin had, with reference to the British North
America Act of 1867 described provisions similar to these as “the
2
three principal pillars in the temple of justice”. Sansoni J
added:
The framers of our Constitution erected a fourth
pillar in that temple when the power of appointment, transfer, dismissal and disciplinary control
of judicial officers was vested in the Judicial
Service Commission. 3
He was referring to section 55 which created a Judicial Service
Commission consisting of the Chief Justice and two Judges of the
Supreme Court. From these provisions, the Supreme Court inferred
that “a division of the three main functions of government is recognised in our Constitution”, or at least that “judicial power in the
sense of the judicial power of the State is vested in the Judicature, i.e. the established civil courts of this country”.^- The
Privy Council agreed that there existed a separate power in the
judiciature which under the Constitution could not be usurped or
infringed by the executive or the legislature:
These provisions manifest an intention to secure in
the judiciary a freedom from political, legislative
and executive control. They are wholly appropriate
in a Constitution which intends that judicial power
shall be vested only in the judicature. They would
be inappropriate in a Constitution by which it was
intended that judicial power should be shared by the
executive or the legislature.5
Whatever other constitutional or political purposes a separation of
powers or functions may serve, it also serves as a safeguard of
individual liberty. Therefore, when, beginning in 1961, the Supreme
Court and the Privy Council in a series of judgments in the course
of that decade sought to prevent any encroachment on, or erosion of,
the powers vested in the judicature, these two Courts were also
seeking to ensure, within the limits laid down by the law, the
continued availability of an independent and impartial tribunal
whenever judicial power was required to be exercised.
(1961) 63 NIR 313.
Toronto Corporation v. York Corporation [1938] AC 415.
Op.cit., at 318.
The Queen v. Liyanage (1962) 64 NLR 313, at 350.
Liyanage v. The Queen (1965) 68 NLR 265, at 282.
298
Meaning of “Judicial Power”. In The Queen v. Liyanage,^
T.S.Fernando J adopted a broad classification of judicial power:
a) in the sense of the essence of judicial power, the strict judicial power;
b) in the sense of the power of judicial review;
c) in a loose sense, as meaning the powers of a judge, e.g. disciplinary powers and powers ancillary to the judicial power.
He accepted a submission that where a power which would ordinarily
fall into the third loose category is consistent with executive or
administrative power and is consistent also with judicial power,
the matter should be considered further in order to see whether
that particular power falls actually within judicial power or outside it. For that purpose, it would be legitimate to adopt one or
other of the following tests: (a) the historical criterion expounded
by Dean Roscoe Pound, i.e. to ask whether, at the time when the
Constitution was adopted, the power in question was exercised by
the Crown, by Parliament or by the Judges, or (b) the Holmes test,
i.e. to inquire what is the end or purpose in view. As for judicial
power in the first sense, it was thought to be best described in the
oft-quoted definition of Griffiths CJ in Huddart Parker Pty.Ltd v.
Moorehead:
The words ‘judicial power’ . . . means the power which
every sovereign authority must of necessity have to
decide controversies between its subjects, or between
itself and its subjects, whether the rights relate to
life, liberty or property. The exercise of this power
does not begin until some tribunal which has power to
give a binding and authoritative decision (whether
subject to appeal or not) is called upon to take action.2
This approach to the “judicial power” concept was approved by the
Privy Council and was generally followed by the Supreme Court in its
subsequent decisions.
Application of the “Judicial Power” Test. Four tribunals
were held to have been constituted in contravention of section 55(1)
of the Constitution, and thereby to be lacking in the essential
3
attributes of independence and impartiality. They were:
(a) Bribery Tribunals established under the Bribery Act, No.11 of
1954 as amended by Act,No.40 of 1958. A Bribery Tribunal was
(1962) 64 NLR 313.
(1909) 8 CLR, at 357.
No reference will be made in this study to those tribunals
which according to the Supreme Court, did not purport to exercise
299
composed of three members selected from a panel; the panel was
composed of not more than fifteen persons appointed by the
Governor-General on the advice of the Minister of Justice. A
Bribery Tribunal had power to hear, try and determine any prosecution for bribery made against any person and to impose
imprisonment or fine. As Sansoni J observed in Senadhira v.
Bribery Comnissioner:
The 1958 amendments to the Bribery Act were designed
to deprive the established Courts of their jurisdiction to try charges of bribery, and to invest permanently established Bribery Tribunals with that jurisdiction. Let me repeat that observation in different
words. The Bribery Tribunals were Courts set up in
substitution for the established Courts, and they were
entrusted with the function of administering justice
in a particular sphere.-*-
But whether the Bribery Tribunals were substitutes for the established Courts as Sansoni J thought, or the Tribunals had concurrent jurisdiction with the Courts as was argued before the Privy
judicial power:
Court Martial: Gunaseela v. Udugama (1966) 69 NLR 193;
Commissioner of Workmen’s Compensation: Panagoda v. Budenis
(1966) 68 NLR 490;
Commissioner of Inland Revenue: Xavier v. Wijekoon (1966)
69 NLR 197;
Income Tax Board of Review: Ranaweera v. Ramachandran (1969)
72 NLR 562,
nor to those tribunals which, though held by the Supreme Court
to be exercising judicial power, were nevertheless held by the
Privy Council not to be judicial offices:
President of a Labour Tribunal: United Engineering Workers
Union v. Devanayagam (1967) 69 NLR 289;
Arbitrator under the Industrial Disputes Act: ibid;
Industrial Court: ibid.
For the overruled Supreme Court view, see Walker Sons & Co.Ltd
v. Fry (1965) 68 NLR 73; Moosajees v. Fernando (1966) 68 NLR
414; Rockland Distilleries Ltd v. Wijetilleke (1966) 68 NLR 414.
For a full discussion of the “tribunal cases”, see M.J.A.Cooray,
Judicial Role under the Constitutions of Ceylon/Sri Lanka
(Colombo: Lake House Investments Ltd, 1982), pp. 74-137.
(1961) 63 NLR 313.
300
Council in Bribery Commissioner v. Ranasinghe,^ they were
institutions seeking to exercise judicial power but not through
2
duly appointed judicial officers.
(b) The office of Quazi established under the Muslim Marriage and
Divorce Act, No. 13 of 1954. The Quazi was appointed by the
Minister and had jurisdiction to entertain an application by a
Muslim wife for a divorce and to adjudicate upon claims for the
payment of Mahr as well as for the maintenance of wives and
children. In Jailabdeen v. Danina Umma, H.N.G.Fernando J
observed that the purpose and effect of the law “was to take
away from the ordinary courts a jurisdiction previously enjoyed
by those courts and to confer that jurisdiction on Quazis”.
But, as he emphasized:
There is nothing illegal, in the sense of conflict
with the Constitution, in a statute which establishes
a new judicial tribunal with jurisdiction (whether
exclusive or not) over particular charges or causes.
Indeed, the legislature might well consider it
necessary in the public interest to constitute such
tribunals, and one can think of many reasons for
the adoption of such a course, such as the need to
secure quick disposal of matters considered to be
deserving of special priority, or to appoint to such
tribunals persons having special knowledge or experience concerning the matters to be adjudged.
The essential requirement was conformity with section 55 of the
Constitution.
(c) The licensing authority constituted under the Licensing of Traders
4
Act, No.62 of 1961. The licensing authority, who was appointed
by the Minister, was empowered to make a “punitive order”
suspending or cancelling the licence issued to a trader and
requiring such trader to pay to the general revenue a sum not
exceeding Rs.5,000. Two of the four grounds on which such an
order could be made were:
i. that he was satisfied that such trader had contravened any
provision of the Act or of any regulations made thereunder; or
ii. that he was satisfied that such trader had acted or was
acting in contravention of any provision of the Control of
Prices Act or the Food Control Act.
(1964) 66 NLR 73.
For other cases, see p.270, n.2.
(1962) 64 NLR 419, at 420.
Ibrahim v. Government Agent, Vavuniya (1966) 69 NIR 217.
301
That is, the act of a trader which provokes the making of a
“punitive order” is that he has sold an article at a price
in excess of the maximum price prescribed under the Control
of Prices Act; in other words, that he has committed an
offence under that Act which is triable and punishable in
the ordinary course by a Magistrate. The licensing authority
is exercising judicial power without having been duly appointed in the manner set out in section 55(1) of the Constitution.
(d) An arbitrator appointed under the Co-operative Societies
Ordinance, No. 16 of 1936.^ The relevant law made provision
for the decision of certain disputes by the Registrar of Cooperative Societies or by arbitrators nominated by him.
Included within the category of such disputes were those
arising:
i. among members or past members of a society;
ii. between a member on the one side and a society or its
comnittee on the other;
iii. between a society or its committee and any officer or
employee of the society.
In this instance, the dispute related to a claim made by the
committee against an employee on the basis that he was liable
to account for goods shown by the books of the society toihave
been under his control as manager. As H.N.G.Fernando noted:
The liability of the manager arises at the least
upon an implied contract, in the nature of agency.
The dispute concerning the existence of this liability and the duty to perform it is an ordinary
civil dispute within the traditional jurisdiction
of the Courts.1
On 23 June 1962, the Minister of Justice, purporting to act
under section 440A of the Criminal Procedure Code as amended by
section 4 of the Criminal Law (Special Provisions) Act, No.l of
1962, directed that the trial of twenty-four persons in respect of
three specified offences under Chapter VI of the Penal Code be held
before the Supreme Court at Bar by three Judges without a jury.
Later that same day, the Attorney-General exhibited to the Court
an Information that these twenty-four persons had conspired to
wage war against the Queen, and conspired and/or prepared to over1. Karunatilleke v. Abeywira (1966) 68 NLR 503.
Ibid., at 505.
302
throw otherwise than by lawful means the Government of Ceylon by
law established, and thereby committed offences punishable under
section 115 of the Penal Code as amended by section 6(2) of the
Criminal Law (Special Provisions) Act. Thereafter, the Minister
of Justice, again on the same day, purporting to act under section
9 of the Criminal Law (Special Provisions) Act, nominated three
Judges of the Supreme Court to preside over the trial of the persons
referred to above. Section 9 read as follows:
Where the Minister of Justice issues a direction
under section 440A of the Criminal Procedure Code
that the trial of any offence shall be held before
the Supreme Court at Bar by three Judges without
a Jury, the three Judges shall be nominated by the
Minister of Justice, and the Chief Justice if so
nominated or, if he is not so nominated, the most
senior of the three Judges so nominated, shall be
the president of the Court.
The Court consisting of the three Judges so
nominated shall, for all purposes, be duly constituted and accordingly the constitution of that
Court, and its jurisdiction to try that offence,
shall not be called in question in any Court,
whether by way of writ or otherwise.
At the commencement of the trial, when the defendants were called
upon to plead, certain preliminary objections were raised on their
behalf. After several days of argument, the Court, upholding one
of the objections, held that because:
a) the power of nomination conferred on the Minister was an interference with the exercise by the Judges of the Supreme Court of
the strict judicial power of the State vested in them by virtue
of their appointment in terms of section 52 of the Constitution,
or was in derogation thereof, and
b) the power of nomination was one which had hitherto been invariably exercised by the Judicature as being part of the exercise
of the judicial power of the State, and could not be reposed in
anyone outside the Judicature,
section 9 of the Criminal Law (Special Provisions) Act was ultra
vires the Constitution.^ T.S.Fernando J explained:
The right of a judge to exercise judicial power is
so inextricably bound up with the actual exercise
of the power and is such an essential step in the
exercise of the strictly judicial power that it must,
The Queen v. Liyanage (1962) 64 NLR 313.
303
in our opinion, be considered part of the power
itself. Unless the Legislature has vested the exercise of any strictly judicial power in the entire
Supreme Court, it is necessary that a bench of
Judges should be nominated to exercise that judicial
power vested in the Supreme Court. If the power of
nomination is completely abolished, no judicial power
vested in the court can be exercised. If that power
is vested in an outside authority, it will legally
be open to such authority to exercise that power to
prevent a particular judge or judges from exercising
any part of the strictly judicial power vested in
them by the Constitution as judges of the Supreme
Court. The absurdity of such a possible result will
be more marked if, instead of the position of a
Puisne Justice of the Court, the position of the
Chief Justice himself be considered. Under a provision of law of this nature it seems to us legally
possible to exclude the Chief Justice himself from
presiding in the Court of which he is the constitutionally appointed Head. The exercise of the power
to nominate can then in practice result in a total
negation of the judicial power of a judge or judges
vested in them by the Constitution.
Dealing with another objection “of a fundamental character”,
the Court observed that even had it come to a different conclusion
regarding the validity of section 9, it would have been compelled
to give way to a principle which “has now become ingrained in the
administration of the common justice in this country”, namely, that
“it is not merely of some importance, but is of fundamental importance that justice should not only be done, but should manifestly
and undoubtedly be seen to be done”. The Court pointed out that
the new legislation, passed with retrospective effect, after the
commission of the offences alleged, had purported to vest in the
Minister (a member of the Government which the defendants were
alleged to have conspired to overthrow by unlawful means and who,
it was not disputed, had participated in the investigation and
interrogation of some of the defendants), the additional power to
nominate the three Judges. This power had hitherto been vested in
the Supreme Court as a body or in the Chief Justice, and in no
person or body outside the Judicature. T.S.Fernando J conceded
that a Court could not inquire into the motives of legislators.
But. he observed:
The circumstances set out above are, however, such
as to put this court on enquiry as to whether the
Ibid., at 357.
304
ordinary or reasonable man would feel that this court
itself may be biased. What is the impression that is
likely to be created in the mind of the ordinary or
reasonable man by this sudden and, it must be presumed,
purposeful change of the law, after the event, affecting the seelction of Judges ? Will he not be justified in asking himself, ‘Why should the Minister,
who must be deemed to be interested in the result of
the case, be given the power to select the Judges
whereas the other party to the cause has no say whatever in a selection ? Have not the ordinary canons of
justice and fairplay been violated ? Will he harbour
the impression, honestly though mistakenly formed,
that there has been an improper interference with the
course of justice ? In that situation will he not
suspect even the impartiality of the Bench thus nominated ? 1
An Assessment
The existence of a court with jurisdiction to inquire into
and pronounce upon the validity of legislation is a feature comnon
to most democratic countries today. It does not mean, as. most Sri
Lankan politicians tend to believe, that the country would then be
governed by such a court or be ruled by its judges. It does mean
that the legislature, together with the executive and the judiciary,
will be subject to the supreme law of the land as declared and
contained in the Constitution. The function of the court is to
ensure that Parliament acts within the limits placed upon it by the
Constitution. It is, of course, the privilege of Parliament, as
the embodiment of the will of the people, to extend those limits,
if the people have so willed by giving it the strength necessary
for that purpose.
Any assessment of the Ceylonese experience of the ex post
facto review of legislation must take note of the shortcomings
which were inherent in the system devised in the 1946 Constitution.
These were:
The absence of a court vested with exclusive jurisdiction.
Neither the Constitution, nor any other law, vested jurisdiction
in respect of such matters in any particular court. Consequently,
the validity of statutes was challenged at different levels of the
judicial heirarchy. Kodakkan Pillai who questioned the validity
of the Citizenship Act before a revising officer in 1951 was
fortunate that the Attorney-General sought by way of certiorari in
Ibid., at 360. See also Liyanage v. The Queen (1965) 68
NLR 265, where the Privy Council held that the Criminal Law (Special Provisions) Law was a “legislative plan” to secure the conviction
and severe punishment of an identified group of person^.
305
in the Supreme Court to have the revising officer’s order quashed;
by 1953 the Privy Council had authoritatively pronounced upon the
matter. Kodeeswaran was less fortunate. In 1962 he chose the
declaratory action in the District Court to impugn the Official
Language Act; in 1970, two appeals and eight years later, the matter
was still pending a final determination. Neither a revising officer
appointed under the Franchise Act, nor a District Judge exercising
original jurisdiction in a wide variety of matters, appears to be
the appropriate authority to inquire into and pronounce upon the
validity of a law. While Parliament was critical of the delay
involved in obtaining an authoritative pronouncement in these
matters, it took no remedial action. When, in March 1971, the Ministry of Justice proposed that the new Court of Appeal, which was
about to be established as the country’s final appellate tribunal,
should have exclusive jurisdiction to pronounce upon the validity
of legislation and in regard to the interpretation of the Constitution, and that all such matters should forthwith be referred to that
Court should they arise in the course of proceedings in subordinate
courts, the Cabinet rejected that proposal.^ However, this is the
practice in several Commonwealth countries. For instance, the
Constitution of Mauritius of 1968 provides thus:
i. Where any question as to the interpretation of
this Constitution arises in any court of law
established for Mauritius (other than the Court
of Appeal, the Supreme Court or a court-martial)
and the court is of opinion that the question
involves a substantial question of law, the court
shall refer the question to the Supreme Court.
ii. Where any question is referred to the Supreme
Court in pursuance of this section, the Supreme
Court shall give its decision upon the question
and the court in which the question arose shall
dispose of the case in accordance with that
decision or, if the decision is subject to an
appeal to the Court of Appeal or Her Majesty in
Council, in accordance with the decision of the
Court of Appeal or, as the case may be, of Her
Majesty in Council.^
Ceylon Daily News, 30 March 1971.
Art.84. For similar provisions, see Constitutions of Antigua
and Barbuda 1981, Art.120; Saint Lucia 1978, Art.106; Saint
Vincent 1979, Art.97; and Grenada 1973, Art.102.
306
The absence of a uniform method of challenge.
A person wishing to question the validity of a statute was left to
his own ingenuity in devising a method by which he could reach the
forum of his choice. Often, the chosen method was a devious one
of reaching the destination. The legality of the Official Language
Act remained clouded in doubt while lawyers argued before three
courts, over a period of five years, whether or not Kodeeswaran,
being a public servant, was entitled to sue for his wages. Kariapper
had to divide his attention between the twin questions of the validity of the Imposition of Civic Disabilities Act and whether mandamus
lay against the Clerk to the House of Representatives; he must surely
have been consoled by the assurance of the Privy Council that had
that Court not held against him on the former, it would have been
compelled to reject his application on the latter. Don Anthony was
singularly unlucky: the two Supreme Court Judges who heard his
appeal against a bribery conviction thought that it was not competent for him to attack as invalid the very Act of Parliament which
conferred on him the right of appeal, while fellow appellants,
Piyadasa and Ranasinghe encountered no such teething problem.
The requirement of locus standi.
The question of the validity of a statute could not be raised except
by one who was adversely affected by its implementation. Even if a
law bore upon its face the clear imprint of invalidity, it continued
to remain in the statute book until an “aggrieved person” appeared
who was ready, able and willing to canvass its enforceability.
Although several other Commonwealth Constitutions also require a
person to have “a relevant interest”,^- or to show that “his interests
2
are being or are likely to be affected”, before he is permitted to
allege that a constitutional provision has been contravened, this
is not an invariable rule. In Malta, a right of action for a declaration that a law is invalid, on any ground other than inconsistency
with a fundamental right (for which special provision is made)
“shall appertain to all persons without distinction and a person
For instance, Constitutions of Grenada 1973, Art.101;
Saint Vincent 1979, Art.96; Saint Lucia 1978, Art.105; and
Antigua and Barbuda 1981, Art.119.
See Constitutions of Mauritius 1968, Art.83(1); Fiji 1970,
Art.97(1); and Kiribati 1979, Art.88(l).
307
bringing such an action shall not be required to show any personal
interest in support of his action”.^
These procedural shortcomings must be viewed in perspective.
The 1946 Constitution did not require the judiciary to declare
invalid any legislation which was inconsistent with the Constitution. Nor did it contain a comprehensive bill of rights which a
court was required to enforce. In both respects, the Supreme Court
chose to perform an innovative role. On the one hand, it assumed
the power to review legislation. On the other, by its interventionist approach, it sought to create an informal regime of rights.
If, in so doing, it showed reluctance in entering into a confrontation with Parliament over legislation relating to fundamental
issues such as citizenship and language, it was displaying a degree
of prudence which was perhaps understandable, having regard to the
2
criticism to which it was, in any event, subjected to. H.N.G.
Fernando CJ gave expression to this cautious policy when he quoted
with approval the opinion of an American text-book writer that:
It must be evident to anyone that the power to declare
a Legislative Enactment void is one which the Judge,
conscious of the fallibility of the human judgment,
will shrink from exercising in any case where he can
conscientiously and with due regard to duty and official
oath decline the responsibility.-^
But while it assiduously circumvented the substantive issues
raised by politically sensitive legislation, the Supreme Court did
not hesitate to intervene, and to do so forcefully and fearlessly
on occasion, in the cause of individual liberty. On the one hand,
it applied the doctrine of the separation of functions unyieldingly,
and repeatedly struck down legislation which either encroached on,
or eroded, judicial power. Thereby, it prevented Parliament from
proceeding to:
establish new Courts with powers as great as, or even
greater than, those possessed by the established Courts,
and devise a new method of appointing the judges who
are to preside over them. Such substitute or parallel
courts could be given unlimited power over ‘the life,
liberty and property of the subject’ to be exercised
by persons to be appointed in any manner Parliament
may choose.
Constitution of the Republic of Malta 1964, Art.119.
See criticism in the Constituent Assembly, supra, pp.114-123.
Attorney-General v. Kodeeswaran (1967) 70 NLR 121, at 138.
Senadhira v. Bribery Commissioner (1961) 63 NLR 313, at
320, per Sansoni J.
308
The Court believed that “such an attempt made once could well be
repeated”,”^ unless it was stifled immediately. It also thought
that “any departure from these salutary provisions of the Order in
Council, ensuring to the citizen the independence of the Judiciary,
2
will no doubt lead to malpractices”, and should not, therefore, be
permitted. On the other hand, the Court applied ordinary statute
law in such a way as to create an informal regime of rights. Principles of criminal justice such as the right to resist unlawful
3 4 arrest, the right to judicial surveillance of detention, the right
5 6
to trial within a reasonable time, the right to be defended, the
7 8
presumption of innocence, the privilege against self-incrimination,
9
and the doctrine of double jeopardy, were extracted from the law
relating to criminal procedure and equated to fundamental principles
which were “ingrained in the Rule of Law”The Court was not willing
to countenance their non-observance or contravention, however grave
the provocation might have been. And, as Basnayake CJ declared:
Under our law, everyone has the right of access to
the established courts of law for relief against the
infringements of his rights, and to no one will the
courts deny that right if their powers are invoked in
appropriate proceedings.-*-
In the final analysis, whatever criticism it might have earned
in other respects, justifiably or otherwise, none could have said of
the Supreme Court, particularly of the Court of the ‘Sixties, that
it did not possess the capacity, in appropriate circumstances, and
through an effectual mechanism, to make a properly formulated, comprehensive bill of rights work. ^
Ibid.
Piyadasa v. Bribery Commissioner (1962) 64 NLR 385, at 391.
Muttusamy v. Kannangara (1951) 52 NLR 324; The Queen v. Corea
(1954) 55 NIR 457.
Kolugala v. Superintendent of Prisons (1961) 66 NLR 412.
Premasiri v. Attorney-General (1967) 70 NLR 193.
Jayasinghe v. Munasinghe (1959) 62 NLR 527; The Queen v.
Peter (1961) 64 NLR 120; The~Queen v. Prins (1962) 61 CLW 26;
Premaratne v. Guneratne (1964) 71 NLR 113; Subramaniam v. Inspector
of Police, Kankesanturai (1968) 71 NLR 204.
The Queen v. Sumanasena (1963) 66 NLR 350.
De Mel v7 Haniffa (1952) 53 NIR 433; The Queen v- Buddharakkita
(1961) 63 NLR 43; The Queen v. Gnanaseeha (1968) 73 NLR 154.
The Queen v. Tennekoon (1965) 69 CLW 28.
This aspect is more fully examined by G.L.Peiris, “Human Rights
and the System of Criminal Justice in Sri Lanka”, Ceylon Journal of
Historical and Social Studies, vol.VIII, no.l, pp.1-31.
Modera Patuwata Co-operative Fishing Society Ltd v. Gunewardene (1959) 62 NLR 192.
309
Review of Bills
Under the 1972 Constitution, no institution administering
justice and no other institution, person or authority had the
power or jurisdiction to inquire into, pronounce upon or in any
manner call in question the validity of any law of the National
State Assembly.^ A similar prohibition was imposed by the 1978
2
Constitution in respect of Acts enacted by Parliament. In regard
to existing law, both Constitutions provided that such law shall
continue to be valid and operative notwithstanding any inconsis3
tency with the fundamental rights guaranteed therein. Therefore,
as far as legislation was concerned, it was no longer possible to
impugn a statute on the ground that it was incompatible with a
fundamental right. There was prescribed, however, a procedure
whereby the question whether a bill or any provision thereof was
inconsistent with a fundamental right or any other provision of
the Constitution could be determined before such bill was taken up
for discussion by the legislature. This jurisdiction was vested
solely and exclusively in the Constitutional Court under the 1972
4
Constitution and in the Supreme Court under the 1978 Constitution.
General Observations
Locus Standi
No special interest on the part of a petitioner was required
in order to invoke the jurisdiction either of the Constitutional
Court or of the Supreme Court. Any citizen could do so by a
writing addressed to the Court. But non-citizens and corporate
bodies,^ despite the fact that they too were guaranteed certain
rights under both Constitutions, were left without the right of
recourse.
Of those who raised questions of inconsistency before the
Constitutional Court, five were interest groups, namely:
a) the directors and shareholders of the Associated Newspapers of
Ceylon Limited, with reference to the Associated Newspapers of
Ceylon Ltd (Special Provisions) Bill;
b) worshippers of the different Christian denominations, with
reference to the Church of Sri Lanka (Consequential Provisions)
Bill;
S.48(2). 2. Art.80(3).
S.18(3); Art.16(1). 4. Supra, pp.124-130, 152.
The 1978 Constitution defined “citizen” for this purpose to
310
c) members of the Buddhist clergy and leading lay Buddhists, with
reference to the Pirivena Education Bill;
d) trade union leaders, with reference to the Greater Colombo Economic Commission Bill; and
e) those who would be directly affected by it, with reference to
the Local Authorities (Imposition of Civic Disabilities)(No.1)
and (No.2) Bills.
Apart from those described above, only fourteen citizens emerged
between 1972 and 1978 to raise questions of inconsistency in regard
to bills. Two of them were Members of Parliament, while one was the
secretary of the civil rights movement. A fourth, L.O.K.Wanigasekera,
canvassed the validity of three bills. The Attorney-General exercised his right of reference on three occasions,^ while the leaders
2
of the UNP and the SLFP made two references each. Between 1978 and
1981, only one citizen, the general secretary of the SLFP, invoked
the jurisdiction of the Supreme Court.
This apparent indifference on the part of the ordinary citizen
is probably due to an intrinsic weakness in the concept of anticipatory review. The publication of a bill in the Gazette does not
provide the publicity that is necessary to enable interested parties
to advise themselves on whether or not to raise any question of
inconsistency. The Gazette is not freely available on the day of
publication; nor is it widely read. Even a subscriber receives his
copy nearly two or three weeks late. Therefore, a citizen will not
have the ooprtunity of questioning the constitutionality of a bill
unless, being particularly interested in the subject-matter of a
bill, he follows its progress through the newspapers and then obtains
a copy of the bill in time. Having done so, this public-spirited
citizen will have to seek and obtain legal advice, have the petition
prepared in proper form and with sufficient copies and then file
the same in Court, all within a period of barely one week. He or
his legal adviser will also have to test the constitutionality of
its provisions, not with reference to its actual implementation, but
on a purely hypothetical basis.
include an incorporated body if not less than three-fourths of its
members were citizens: Art.121(1).
Associated Newspapers of Ceylon (Special Provisions) Bill,
Administration of Justice Bill, and the Greater Colombo Economic
Commission Bill.
J.R.Jayewardene referred the Sri Lanka Press Council Bill and
the Administration of Justice Bill, while Mrs.Bandaranaike referred
the two Local Authorities (Imposition of Civic Disabilities) Bills.
311
The 1972 Constitution required the Attorney-General to examine
every bill and to inform the Speaker if, in his opinion, a question
of inconsistency should be referred to the Constitutional Court.
That is, if the Attorney-General had a doubt in regard to the constitutionality of a bill, or even an uneasy feeling, it was his duty
to comnunicate that opinion to the Speaker; and the Speaker was then
required to refer that bill to the Constitutional Court for a
decision. The unreality of this situation, particularly in respect
of a controversial bill, has already been noted.’*’ On 15 November
1972, Attorney-General Tennekoon addressed the Minister of Justice
in the following terms:
I refer to your note on the Press Bill which you
handed to me yesterday.
I would like to say, with all respect to the Cabinet,
that I still continue to hold the view that certain provisions in the Bill are inconsistent with the guarantee
of equal protection of the law contained in the Court [sic].
Indeed, I would have written to Mr.Speaker to that effect
and have refrained from doing so only because the objection
has already been taken by others.
When the matter comes up for hearing I believe it will
be my duty to inform the Court of my views and the reasons
therefor.
You posed to me the question how the Cabinet1 s view may
be placed before the Court.
It would not be possible for a lawyer member of the
Cabinet to appear because the Constitution prohibits
members of the National State Assembly appearing before
the Constitutional Court.
A private lawyer may I think, with leave of the Court,
appear and present the Government’s point of view. Apart
from other reasons this would be convenient for me in
view of other important and time-consuming commitments.
A possible course may be for me as Attorney-General to
appear before the Constitutional.. Court and say that the
Cabinet had been advised of the existence of unconstitutional
provisions in the bill and that upon the Constitutional
Court so holding the Government would present the bill in
the House as one requiring a 2/3 majority for passing.
The only other course which I can think of – though it
is not one which I can commend or even contemplate with
equanimity – is to find a new Attorney-General. He would
have to be one who shares the Cabinet’s view on the bill.
It is clear from this letter that the Attorney-General was of the
opinion that certain provisions in the Press Council Bill were inconsistent with the Constitution. It was his constitutional duty to have
communicated that opinion to the Speaker. He did not do so. The fact
that some other person had raised the same question of inconsistency
Supra, p.128.
312
was no reason for the non-performance by the Attorney-General of
his duty. His belief that it would be sufficient if he expressed
his views on the bill after the Constitutional Court had assembled
to consider objections raised by others, was a misconception of
his own responsibilities. As a matter of fact, even when he did
appear before the Constitutional Court, he did not publicly disclose
his views on the bill He was an essential link in the constitutional process of testing the validity of bills; but if an AttorneyGeneral were to deliberately neglect to perform his constitutional
duty and yet continue to remain in office, that process could not
work. The requirement in the 1978 Constitution that the AttorneyGeneral should convey his views on a Bill to the President appears,
therefore, to be a more realistic one.
If an amendment is moved to a bill in the course of its progress through the legislature, there is no opportunity available to
a citizen to raise a question of inconsistency in regard to that
amendment. Under both Constitutions, the Attorney-General was
required to examine all amendments proposed to a bill and to communicate his opinion to the Speaker at the stage when the bill was
ready to be put to the House for its acceptance. But the 1978
Constitution does not enable the Speaker to make a reference to the
Supreme Court at any stage. Under the 1972 Constitution it was
theoretically possible for the Speaker to refer to the Constitutional Court at any stage an opinion communicated to him by the
Attorney-General. Such a reference, however, was never made. This
is a serious omission as was made evident when on 17 October 1980,
the following clause was moved at the committee stage discussion
on the Presidential Elections Bill and the Parliamentary Elections
Bills
No person shall canvass for, or act as agent of or
speak on behalf of, a candidate, or in any way
participate in an election, if such person is a
person on whom civic disability has been imposed
by a resolution passed by Parliament in terms of
Article 81 of the Constitution, and the period of
such civic disability specified in such resolution
has not expired.
Every person who contravenes the provisions of
subsection (1) shall be guilty of an offence and
shall, on conviction after a summary trial before
a Magistrate, be liable to a fine not exceeding
Supra, pp.241-255.
313
one thousand rupees, or to imprisonment of
either description for a term not exceeding
six months, or to both such fine and imprisonment . 1
On the previous day, Parliament had imposed civic disability on
the leader of the SLFP, Mrs.Bandaranaike. This new prohibition
was , prima facie, an infringement of Article 14(1) (e) which guaranteed freedom of speech and expression to all citizens, including
those on whom civic disability had been imposed. But in the
absence of a challenge and, consequently, of a determination by
the Supreme Court, this provision found its way into the statute
book.
Jurisdiction
The Constitutional Court was required to advise the Speaker
whether an impugned bill or any of its provisions was inconsistent
with the Constitution. In arriving at its decision, the Court was
entitled to hear the Attorney-General, who had the right to be heard
on all matters before that Court, and any other person: as a matter
of practice, the Court heard every petitioner or counsel appearing
on behalf of such petitioner. On one occasion when the AttorneyGeneral advised the Speaker to refer to the Court the question of
the inconsistency of a bill and then declined, for personal reasons,
to exercise his right of audience, the Court heard private counsel
who had been retained by the State to place before it the case for
2
constitutionality of the impugned bill. The Constitutional Court
was also entitled to hear witnesses and examine documents. Although
no oral evidence was ever recorded, the Court had recourse to a
3
variety of documents including a party manifesto, a Speech from
4 5 the Throne, constituent assembly proceedings, a report of a press
interview given by a Minister; a commentary on the constituent
Parliamentary Debates, 17 October 1980, col.1665.
Attorney-General Tennekoon declined to appear in respect of
the Associated Newspapers of Ceylon Ltd (Special Provisions) Bill
on the ground that his wife was a shareholder of the newspaper
company concerned. The Government thereupon retained C.Thiagalingam, Q.C., a leading member of the Unofficial Bar, who appeared with
the Secretaries for Justice and Constitutional Affairs as his
juniors.
Sri Lanka Press Council Bill.(1973) DCC, Vol.l, p.l.
Ibid; Companies (Special Provisions) Bill (1974) DCC, Vol.2,
p.l.
Ibid.
Ibid.
314
1 2
assembly; a government communique; reports of commissions of
3 4 5 inquiry; a budget speech; court proceedings; and the “trend
g
of legislation”, as well as to other constitutions and the decisions of foreign courts, notably those of the Supreme Courts of
India and the United States. The decision of the Constitutional
Court together with the reasons therefor was required to be given
within two weeks of the reference; a dissentient member could if he
so wished state at the same time the reasons for his dissent.
The Supreme Court’s jurisdiction in respect of proposed
legislation is wider in scope. Any provision of the 1978 Constitution may be amended with a special majority (i.e. by not less than
two-third of the total number of members of Parliament voting in
favour thereof);^ the amendment of certain further entrenched
provisions requires, in addition, approval by the people at a
g
referendum. The Constitution as a whole may not be repealed unless
the bill for such repeal also seeks to enact a new Constitution to
…….. 9 …………………………………………………
replace it. The operation of the Constitution, or any part thereof,
may not be suspended.”^ Accordingly, the Supreme Court may, in
respect of a bill, be required to determine one or more of the
following questions:
a) whether the bill or any provision thereof requires to be passed
with the special majority;
b) whether the bill or any provision thereof requires to be passed
with the special majority and to be approved thereafter at a
referendum;
c) whether the bill seeks to repeal the Constitution without seeking
to enact a new Constitution to replace it;
d) whether the bill seeks to suspend the operation of the Constitution or any part thereof;
e) whether the long title of the bill requires to be amended so as
to state specifically that it is either for the amendment or for
the repeal and replacement of the Constitution.
Ibid. 2. Ibid.
Associated Newspapers of Ceylon Ltd (Special Provisions) Bill
(1973) DCC, Vol.l, p.35.
Companies (Special Provisions) Bill, supra; Banking Corporation of Sri Lanka Bill (1977) DCC, Vol.5, p.l.
Church of Sri Lanka (Consequential Provisions) Bill (1975)
DCC, Vol.3, p.5.
Greater Colombo Economic Commission Bill (1978) DCC, Vol.6,p.5.
Art.82(5). 8. Art.83.
Art.75. 10. Ibid.
315
The Attorney-General as well as the petitioner (either in person
or by attorney-at-law) have the right to be heard.^ There is no
specific provision for the admission of evidence, whether oral or
documentary, and the Court has so far confined itself to the
content of the relevant bills without proceeding to examine extraneous matter in order to gather or understand the pith and substance
or true character of a proposed legislative measure. The determination, accompanied by the reasons therefor, is required to be
communicated to the President and the Speaker within three weeks
of the making of the reference or the filing of the petition, as the
, 2 case may be.
Urgent Bills
By the simple device of an endorsement under the hand of the
Secretary to the Cabinet that a bill is “urgent in the national
interest”, it has been possible to avoid any argument in Court
3
between contending parties on the constitutionality of such bill.
A bill which bears such an endorsement is not required to be
4
gazetted. Consequently, its existence is generally not known
outside the Cabinet. In respect of such a bill, the Constitutional
Court was required to examine it along with the Attorney-General
and to communicate its opinion to the Speaker “as expeditiously
as possible and in any case within 24 hours of the assembling of
the Court”. Its opinion could have been that the bill or any
provision therein was either consistent or inconsistent with the
Constitution, or that it entertained a doubt on that question; in
the latter event, it was deemed that an inconsistency existed.^
The 1978 Constitution retained this extraordinary technique and
procedure, but gave the Supreme Court “twenty-four hours (or such
longer period not exceeding three days as the President may
specify) of the assembling of the Court” within which to communicate its determination to the President and the Speaker. Neither
the Constitutional Court nor the Supreme Court was required to
give reasons for its opinion or determination.
Art.134.
Art.121(3).
S.55(1); Art.122(1).
Ibid.
S.55.
Art.122.
316
This procedure was justified in the Constituent Assembly on
the basis that “there comes once in a way, as in the case of the
demonetization law, the need for a government in the national
interest to pass a law in the shortest possible time before people
can make preparations against that law”.^ This is undoubtedly
true; pre-emptive action can be taken to nullify the effect of a
bill which seeks to impose a new tax or levy new duties if prior
notice is given of such bill and its passage through Parliament is
attended with delay. But none of the five bills for which this
procedure was invoked by the SLFP Government between 1972 and 1977
fell into this category:
The Bribery (Special Jurisdiction) Bill sought to give the
Minister of Justice power to nominate a district court situated
anywhere in Sri Lanka for the purpose of the trial and disposal
of offences under the Bribery Act irrespective of the place
2
where such offences had been committed.
The Associated Newspapers of Ceylon Ltd (Special Provisions)
(Amendment) Bill sought to enlarge the definition of the term
“members of the public” in the principal Act, being persons to
whom shares in the company could be offered for sale, by including
3
within it “public corporations”.
The Interpretation (Amendment) Bill sought to declare clearly
and unequivocally the intention of the legislature in previously
enacting that no court shall grant an injunction against the
4
State or person acting on behalf of the State.
The Banking Corporation of Sri Lanka Bill sought to establish
a Banking Corporation and to vest in that Bank upon payment of
compensation the existing undertakings in Sri Lanka of all
foreign commercial banks which were not nationalised banks in
their own countries.^
The Temple Lands (Abolition of Service Tenures) Bill sought to
abolish the feudal system of service tenure of temple lands.
There was no urgency which was apparent in regard to Bills (1) and
(2); in fact, Bill (1) was referred to the Constitutional Court
under section 53 only because the Minister of Justice thought it
Colvin R.de Silva, Constituent Assembly Debates, 4 July 1971,
col.2856.
14 February 1973; (1973) DCC, Vol.l, p.23.
28 June 1974; (1974) DCC, Vol.2, p.7.
3 September 1974; (1974) DCC, Vol.2, p.8.
7 April 1977; (1977) DCC, Vol.5, p.l.
15 April 1977 (1977) DCC, Vol.5, p.6.
317
was about time that the special procedure contemplated in that
section was “tried out”.’*’ Bill (3) was probably considered urgent
because it sought also to nullify certain court decisions granting
injunctions against the State. Bills (4) and (5) were referred to
the Court at a time when the National State Assembly stood prorogued.
There was no secrecy involved in either proposal since they had both
been announced five months previously in the budget speech of the
Minister of Finance. The reference of these two bills was probably
a political ploy, at a time of mounting speculation as to whether
or not the National State Assembly would be dissolved; in fact, the
Assembly was dissolved on 20 May without either of these bills being
presented to it.
Between September 1977 and August 1978, the new UNP Government
referred the following bills to the Constitutional Court as being
urgent in the national interest:
2
Second Amendment to the Constitution
………………….. 3 ……………………………..
ii. Rent (Amendment) Bill
4
iii. Ceiling on Housing Property (Amendment) Bill
iv. Criminal Justice Commissions (Repeal) Bill^
g
v. Exchange Control (Amendment)(Repeal) Bill
vi. Export Duty (Special Provisions) Bill^
g
vii. Foreign Exchange Entitlement Certificate (Repeal) Bill
9
viii. Monetary Law (Amendment) Bill
ix. Budgetary Relief Allowance of Workers Bill^
x. Public Security (Amendment) Bill^
12 xi. Special Presidential Commissions of Inquiry Bill
13 xii. Parliament (Powers and Privileges) (Amendment) Bill
14 xiii. Bretton Woods Agreements (Special Provisions) Bill
15 xiv. Criminal Procedure (Special Provisions) Bill
xv. Proscribing of Liberation Tigejs of Tamil Eelam and Other
Similar Organisations Bill.l°
Private information.
Ibid, p.10.
Ibid., p.22.
Ibid.
Ibid., p.26.
(1978) DCC, Vol.6, p.12.
Ibid., p.15.
Ibid., p.22.
(1977) DCC, Vol.5, p.8.
Ibid., p.12.
Ibid., p.23.
Ibid., p.25.
Ibid., p.33.
Ibid., p.13.
Ibid., p.21.
Ibid., p.24.
318
Of them, bills (vi), (vii), (viii) and (ix) sought to implement
certain budgetary proposals and could be said to have been legitimately referred under the special emergency procedure. Bill (xiii)
was non-controversial, but not urgent. Bill (x) sought to provide
greater parliamentary control over a state of public emergency, but
was not urgent. Four other bills sought to give relief: (ii) to
enable one-house owners to recover possession of such houses; (iii)
to enable tenants of low-rent houses to become owners of such houses;
(iv) and (v) to terminate certain controversial criminal proceedings
in respect of exchange control offences. There was no element of
urgency, however, in regard to any of these four bills, in the sense
of the delay that might have been involved had these bills been
gazetted and public notice given. The five remaining bills are
worthy of a closer examination:
Bill (i): The Second Amendment to the Constitution sought to
transform Sri Lanka’s parliamentary executive into a presidential
executive. By invoking section 55, the Government succeeded not
only in avoiding any prior discussion of the bill within its own
parliamentary group, but also in preventing the Opposition from
raising before the Constitutional Court the fundamental question
whether the National State Assembly was competent to make such a
dramatic re-structuring of the Constitution. The lack of urgency
in regard to this bill is evident from the fact that, upon being
passed by the Assembly on 20 October 1977, the new law was not
brought into operation until several months later, on 4 February 1978.
Bill (xi): The Special Presidential Commissions of Inquiry Bill
sought to provide a method by which the conduct of public officers
could be examined and civic disability could be imposed on those
found guilty of political victimisation, misuse or abuse of power,
corruption or fraud. In a cursory examination, the Constitutional
Court only considered the likely impact of this bill on those provisions in the Constitution which prescribed the qualifications of
voters. It did not, for instance, consider the question whether
the imposition of civic disability by the legislature, which involved
the deprivation of the right to vote and to stand for election as
well as the right to hold public office, would amount to the
infliction of a punishment by the legislature without a judicial
trial. Had an opportunity been afforded for this question to be
319
argued, there is no reason to think that the Court might not haye
held, as it did six months later after a full argument in respect
of another bill, that the deprivation of the right to vote:
is more than a mere disqualification; it is a clear
punishment depriving him of the right to participate
in the democratic process of choosing those who will
guide the destinies of his city or his town or his
village;
and that the deprivation of the right to hold public office:
is the severest punishment that could be inflicted
on . . . a public officer.-*■
By invoking section 55, the Government effectively stifled any such
argument.
Bill (xii): The Parliament (Powers and Privileges)(Amendment)
Bill sought to grant the National State Assembly concurrent jurisdiction with the Supreme Court to punish summarily any breach of
privilege. Thereby, the legislature in Sri Lanka was seeking to
acquire, for the first time, the power of arrest and the power to
impose sentences of fine or imprisonment. The question whether this
acquisition of judicial power traditionally exercised by the courts
was lawful was prevented from being argued. The Constitutional Court
merely referred to section 5(c) of the Constitution and held that
2
the bill was in accord with it.
Bill (xiv): The Criminal Procedure (Special Provisions) Bill
sought to prohibit the grant of bail to persons alleged to have been
concerned in the commission of certain scheduled offences. The Bill
also sought to take away the power of the Court to impose a suspended sentence of imprisonment on, or to order the conditional release
of, such persons, and required instead the imposition on conviction
of a mandatory term of imprisonment of not less than one-third of
the prescribed maximum in addition to any other punishment imposed
by Court. The power of the Supreme Court on appeal to revise such
sentences was also sought to be removed. The Constitutional Court
looked for a “permissible classification” and found it in the fact
that the scheduled offences related to “(1) the State; (2) persons;
(3) property; and (4) offences under the Offensive Weapons Act”.
The first three of these categories encompass the whole field of
serious crime and can hardly form the basis for a reasonable classification. Be that as it may, the question whether the legislature
Local Authorities (Imposition of Civic Disabilities)(No.2)
Bill (1978) DCC, Vol.6, p.30, at 43-44.
S.5(c) declared that the National State Assembly exercises
320
was seeking to trespass on judicial territory was not examined;
nor did anyone have an opportunity to invite the Court to examine
that question.
Bill (xv): The Proscribing of Liberation Tigers of Tamil Eelam
and Other Similar Organisations Bill intruded deep into the area
of individual liberty. It sought, inter alia, to empower the
President to proscribe any movement, society, party, association,
or body or group of persons; to authorise the censorship of news;
to enable the Minister to make an order of forfeiture of property;
to prohibit the grant of bail; and to empower the Minister to order
the detention of persons. The Constitutional Court considered that
the power to make an order of forfeiture of property, being an
exercise of judicial power, could only be conferred on a court, but
held that none of the other provisions were inconsistent with the
Constitution. No special consideration was given, for instance,
to section 18(1) (a) of the Constitution which guaranteed the equal
protection of the law. No qpportunity was afforded to those who were
likely to be affected by the operation of this bill to argue that
there was no good reason why the ordinary criminal law should not
have been permitted to take its course in relation to them.
Between September 1978 and December 1981, it became the
invariable practice for President Jayewardene to refer to the Supreme Court for a determination within 24 hours any bill which appeared likely to raise a legal or political controversy. During this
period, the Supreme Court exercised its constitutional jurisdiction
in respect of the following bills. It is significant that all except
one, namely, the Essential Public Services Bill, were referred under
Article 122(1) (b) on the basis that they were urgent in the national
interest:
Universities Bill
Tax Amnesty Bill
Special Presidential Commission of Inquiry (Special Provisions) Bill
First Amendment to the Constitution
National Housing (Amendment) Bill
Compulsory Public Service (Amendment) Bill
Local Authorities (Special Provisions) Bill
Second Amendment to the Constitution
Monetary Law (Amendment) Bill
“the judicial power of the People through courts and other institutions created by law except in the case of matters relating to its
powers and privileges, wherein the judicial power of the People may
be exercised directly by the National State Assembly according to law”.
321
Proscribing of Liberation Tigers of Tamil Eelam and
Other Similar Organisations (Amendment) Bill
Motor Traffic (Amendment) Bill
Prevention of Terrorism (Temporary Provisions) Bill
Essential Public Services Bill
Criminal Procedure (Amendment) Bill
Payment of Supplementary Allowance Bill
Passport (Regulation) and Exit Permit (Amendment) Bill
Parliament (Powers and Privileges)(Amendment) Bill
Inland Revenue (Amendment) Bill
Development Councils Bill
Third Amendment to the Constitution.
Of course, any constitutional exercise during this period was
largely academic for the reason that the Government had a comfortable
majority in Parliament with which it was able to secure the passage
of amendments to the Constitution as well as bills which were inconsistent with any provision of the Constitution. The Government
could only have been deterred if the Supreme Court held that approval
at a referendum was also necessary for the passage of a bill. The
Court so held on three occasions;^ the Government deleted the
offending provisions in two bills and abandoned the third altogether.
But the invocation of the special procedure in Article 122 has
produced two more far-reaching effects. Firstly, it has prevented
the citizen from enforcing his fundamental rights in respect of
legislative action. Secondly, it has resulted in the enactment of
laws which have been subjected only to a hurried and perfunctory
test by the Supreme Court against the fundamental rights so solemnly
and ostentatiously incorporated in the Constitution.
Principles of Interpretation
The function of a court called upon to determine whether a
bill is inconsistent with the Constitution is different from that
of a court which has to decide whether a law enacted by Parliament
is invalid. In the latter case, the court may presume that all laws
are constitutional. Where two interpretations are equally possible,
namely, one consistent and the other inconsistent with the Constitution, the court may lean towards the former. In the judicial
review of bills, however, none of these presumptions need apply.
Before making its first determination in 1973, the Constitutional
Court declared that in the performance of its functions:
the correct approach is to examine the provisions of
the bill vis-a-vis the Constitution and thereafter
Essential Public Services Bill, Development Councils Bill,
and the Third Amendment to the Constitution.
322
decide the question without resort to presumptions
or counter-presumptions. Secondly, we should interpret the Constitution as far as possible in a manner
that will make the Constitution work and not in a
manner that will place impediments and obstacles to
the working of the Constitution. ^
In applying the first of these principles, the Court had
necessarily to consider the scope of the limitation clause, section
18(2) of the 1972 Constitution. In its view, the Court was entitled
to determine whether the provisions of a bill which, prima facie,
infringed a fundamental right, were in the interests of the several
matters set out in that section. But the Court considered that the
words “in the interests of” were words of great amplitude which had
2
to be given not a restricted meaning but a wide connotation. A
wide connotation, of course, lessened the applicability and reduced
the scope of the fundamental right concerned.
The differentia which is the basis of classification and the
objects of a bill are distinct from each other. In order to ascertain the latter, the Court at first looked only at its title, preamble
and provisions. In order to find out the differentia, the Court did
not restrict itself to the bill, but went outside it to find some
economic, political or other social interest to be secured and some
relation of the classification to the objects sought to be accomplished. In doing this, the Court considered matters of cornnon knowledge,
3
common report, the history of the times and reports of commissions.
Later, however, the Court was of the view that in ascertaining the
objects of a bill, its function was not merely to look at the title,
preamble and provisions and assume that the matters of fact stated
therein were factually true and were correctly set out; the Court
was entitled to look at extraneous matter in order to determine
4
whether the matters of fact thus stated were, in fact, true.
Although the Constitutional Court declared at the outset that
it will not resort to presumptions or counter-presumptions in deciding
a question of alleged inconsistency, it became evident that at least
one presumption consistently influenced its decisions in the early
years. Dealing with an objection to the Press Council on the ground
Sri Lanka Press Council Bill (1973) DCC, Vol.l, p.l, at 6.
Ibid., at 15.
Ibid., at 42.
Church of Sri Lanka (Consequential Provisions) Bill (1975)
DCC, Vol.3, p.5, at 15.
323
that its members were to be appointed by the President on the
advice of the Minister who, it was argued, could pack the Council
with nominees of his choice or of his own political persuasion,
the Court observed that:
The petitioners appear to see a bear behind every bush.
If the Constitution enables the President to appoint on
the advice of the Minister [sic] judges to the highest
judicial tribunals, what is the suspicion about the
Minister advising the President on the appointment of
members of the Press Council ? Must we in considering
this Bill presume that the Minister will act mala fide
and not in the interests of the country ? To give such
an interpretation and to hold that therefore this is a
violation of the Constitution would be doing injustice
to the Constitution.1
In the same case, the Court rejected a submission that the Minister
might, in tendering advice to the President on another matter, sometimes act capriciously:
Can one imagine a responsible Minister observing collective responsibility advising the constitutional
President the removal of a member unless it be for good
cause ?2
The power conferred on the Minister by the Administration of Justice
Bill to prescribe by regulation the offences which may be compounded
and to specify the persons by whom they may be so compounded was
objected to on the ground that the Minister could make a regulation
to compound a case at the instance of a person to be named in the
regulation and in respect of offences normally not compoundable
and thereby abuse the powers given to him. The Court observed:
We repeat that we must not examine the Bill with the
premise that a responsible Minister will act perversely
and irresponsibly under the powers given to him under
the Bill.^
In rejecting a submission that the power to exempt a company or class
or category of companies from the application of the Companies (Special Provisions) Bill would amount to a delegation of the legislative
power of the National State Assembly, the Court considered it relevant to note that:
under the present Bill, the power of granting and
revoking exemptions is vested not in any administrative
officer, but in two responsible Ministers.^
Sri Lanka Press Council Bill, supra, at 17, per Pathirana J.
Ibid., at 17.
Administration of Justice Bill (1973) DCC, Vol.l, p.57. at
72, per Pathirana J.
Companies (Special Provisions) Bill, supra, at 72, per K.D.
De Silva.
324
Examining the argument that the Licensing of Traders and Regulation of Internal Trade Bill sought to single out traders and manufacturers for discriminatory legislation, the Court insisted that
there was an intelligible differentia which was apparent. After all:
The Minister of Trade has presented this Bill to the
National State Assembly. As an elected representative
of the people in the National State Assembly and as a
member of the Cabinet he would have been conscious and
aware of the abuses on the part of manufacturers and
traders in this connection and the Bill is directed to
prevent these abuses and malpractices and thereby
ensuring to the consumers articles of good quality at
controlled prices.-*-
With the change of government in July 1977, the Constitutional Court’s
attitude towards the vesting of discretionary power in Ministers
also underwent a transformation, and its approach became more realistic,
In October 1977, the question arose whether the Excise (Amendment)
Bill offended section 18(1) (a) of the Constitution for the reason
that it sought to vest an unfettered discretionary power in the
Minister if he considered it necessary to do so, without assigning
any reason, to direct the authority granting a licence, to grant,
renew or cancel a licence. The Court had no doubt that the Minister
could “arbitrarily discriminate between persons in like circumstances”. It was argued by the Attorney-General that the discretionary power being vested in a person of high standing like a Minister
was an assumption that the power will not be abused and that that
was a sufficient safeguard against the exercise of arbitrary power
in a manner so as to discriminate between persons similarly placed
and in like circumstances. The Court did not agree:
That is quite a different thing from saying that the
granting of such arbitrary powers by statute does
not contravene the provision in the Constitution
regarding the equal protection of the law when there
is no principle or policy that should guide the
exercise of such wide discretion.^
In January 1978, the Constitutional Court expressed the view that
a provision in the Greater Colombo Economic Comnission Bill which
empowered the Minister, by regulation, to modify or alter the provisions of any written law in their application to the area of
authority of the Commission, was likely to be abused by the
Licensing of Traders and Regulation of Trade Bill (1976)
DCC, Vol.4, p.l/, at 22, per Pathirana J.
Excise (Amendment) Bill (1977) DCC, Vol.5, p.14, at 21, per
Pathirana J.
325
Minister:
It would be open to the Minister to amend for
instance the Trade Unions Ordinance by making
regulations prohibiting the formation of trade
unions and there would then be a violation of
section 18(l)(f) of the Constitution whereby
all citizens have the right to freedom of association.
The second principle formulated by the Constitutional Court
implied that the Court intended to be an active participant in the
process of effecting social change. According to the Court, the
1946 Constitution had been “an obstacle to solving the problems of
2
the people”. One of its principal defects was that:
We were also not sure whether our Legislature
was supreme, because time and again the Legislature was told that it had not the right to
enact certain laws.
The doctrine of separation of powers which the Supreme Court had
4
read into that Constitution “has no place in our Constitution now”.
Although a Constitution must be interpreted “in a broad way and not
in a narrow and pedantic sense”, ^ the concept of judicial power
had been given too extensive a meaning under that Constitution:
We are not prepared to go outside the definition
of Griffiths CJ in order to find out the meaning
of the term 1 judicial power’.6
The Constitutional Court believed that to adopt the “Holmes test”
or to apply the “historical criterion” expounded by Dean Roscoe
Pound, as the Supreme Court had previously done, “will be in our
view to put the clock back many years”.^ It had no intention of
doing that since:
We are now emerging from a colonial economy and
marching towards a socialist democracy,°
Analogies, precedents, principles and practices of the past, however
useful, should now yield, in the interpretation of a Constitution
Greater Colombo Economic Commission Bill, supra, at 8, per
Wijesundera J.
Sri Lanka Press Council Bill, supra, at 4, per Pathirana J.
Ibid.
Associated Newspapers of Ceylon Ltd (Special Provisions)
Bill, supra, at 53, per Pathirana J.
Sri Lanka Press Council Bill, supra, at 4, per Pathirana J.
Administration of Justice Bill, supra, at 69, per Pathirana J.
Ibid., at 63, per Pathirana J.
Companies (Special Provisions) Bill, supra, at 4, per K.D.
de Silva.
326
which derives its power and authority solely from the People, to
the principles set out in the Constitution itself,
namely, the Principles of State Policy and the Fundamental Rights and Freedoms and to what extent those
fundamental rights and freedoms are subject to restrictions which the Constitution itself had prescribed
in the interests of national unity and integrity,
national security, national economy, public safety,
public order, the protection of public health or
morals or the protection of the rights and freedoms
of others or giving effect to the Principles of State
Policy.-*•
It is significant that in reminding itself of the principles by
which it should be guided, the Constitutional Court considered that
foremost among them, taking priority even over fundamental rights,
were “the Principles of State Policy set out in section 16(2) which
states that the Republic is pledged to carry forward the progressive
advancement towards the establishment in Sri Lanka of a socialist
democracy, the objectives of which are more fully set out in that
section”.^
The Supreme Court under the 1946 Constitution was not concerned
with the merits or demerits of a legislative measure; nor with the
policy underlying it. But not so the Constitutional Court. In
its view, the Sri Lanka Press Council Bill:
is essential for the proper and efficient functioning
of the democratic process under the Constitution of
Sri Lanka and to safeguard the rights of the common
man and the Press.
The purpose of the Bribery (Special Jurisdiction) Bill, which was
the expeditious trial and disposal of bribery cases that were pending
4
all over the island, “is indeed a laudable object”. The Places
and Objects of Worship Bill,
by restricting the indiscriminate construction of
buildings and objects of public worship in a manner
that will not promote discord and dissatisfaction
among the adherents of different religions, will help
promote the rights and freedoms of all religionists
and will thereby give effect to one of the Principles
of State Policy, namely, promoting co-operation and
mutual confidence between all religious groups in
this country. ^
Sri Lanka Press Council Bill, supra, at 6, per Pathirana J.
Ibid.
Ibid., at 21.
(1973) DCC, Vol.l, p.23, at 25, per K.D.de Silva.
(1973) DCC, Vol.l, 27, at 34, per Pathirana J.
327
The Court was sympathetic to the policy of the Government to broadbase the Associated Newspapers of Ceylon Limited, particularly
since several of its directors had been found by a Royal Commission to have contravened the Exchange Control and Inland Revenue Acts
Every person or company which indulges in activities
which deprive a nation of vitally needed foreign
exchange is in fact waging an economic war against
the State. The State is therefore both morally and
in the interests of the nation justified in enacting
laws which will serve to curb the powers and tendencies of those who are in commanding heights from
which they could deprive the country of such foreign
exchange.!
The Administration of Justice Bill was “another milestone in the
legal history as it makes far-reaching changes in the administration
2
of justice”. The Companies (Special Provisions) Bill will “remove
the stranglehold which foreign business interests have over the
economy of the country” as we emerge from a colonial economy and
3
march towards a socialist democracy. The Constitutional Court
understood why the Banking Corporation of Sri Lanka Bill exempted
from its application those banks which operated in Sri Lanka which
were nationalised in their own countries:
Bilateral relations between the countries which have
established these banks in Sri Lanka, in view of the
expanding trade between Sri Lanka and these countries,
may be affected if these banks are vested in the proposed Banking Corporation of Sri Lanka. In addition,
the Comity of Nations necessitates this differentia
because a foreign bank operating in Sri Lanka which
has been nationalised in its own country will be more
co-operative in carrying out the decisions and policies of that government and country vis-a-vis Sri
Lanka rather than a private foreign-owned bank.^
Impugned Bills
During the ten year period under review, from May 1972 to
December 1981, 499 statutes were enacted by the legislature. Between
1972 and 1977, under the SLFP administration, of the 209 bills
which were placed on the agenda of the National State Assembly, the
Constitutional Court examined 14 government bills (i.e. 9 per cent),
namely:
Sri Lanka Press Council Bill
Bribery (Special Jurisdiction) Bill
Supra, at 48, per Pathirana J.
Supra, at 58, per Pathirana J.
Supra, at 5, per K.D.de Silva.
(1977) DCC, Vol.5, p.l, at 2, per Pathirana J.
328
Places and Objects of Worship Bill
Associated Newspapers of Ceylon Ltd (Special Provisions) Bill
Administration of Justice Bill
Companies (Special Provisions) Bill
Associated Newspapers of Ceylon Ltd (Special Provisions)
(Amendment) Bill
Interpretation (Amendment) Bill
National Prices Commission Bill
Pirivena Education Bill
Licensing of Traders and Regulation of Internal Trade Bill
Parliamentary Pensions Bill
Banking Corporation of Sri Lanka Bill
Temple Land (Abolition of Service Tenures) Bill,
and one private member’s bill, namely, the Church of Sri Lanka (Consequential Provisions) Bill. Only the latter was held, with one
member of the Court dissenting, to be inconsistent with the Constitution. The Court agreed with the Attorney-General that three clauses
of the Administration of Justice Bill were inconsistent with the
Constitution, and the Minister of Justice informed the National
State Assemnbly that the Government intended to amend the bill accoringly.
Between the election of the UNP Government in July 1977 and
the repeal of the 1972 Constitution fourteen months later, of the
60 bills which were placed on the agenda of the National State
Assembly, the Constitutional Court examined 22 bills, of which 15
had been referred under section 55 as being urgent in the national
interest. The seven inter-parte applications related to:
Excise (Amendment) Bill
Local Authorities Elections (Special Provisions) Bill
Finance (Amendment) Bill
Greater Colombo Economic Commission Bill
Protection of Tenants (Special Provisions)(Amendment) Bill
Local Authorities (Imposition of Civic Disabilities)(No.1)
and (No.2) Bills.
Of them, the Court held the Excise (Amendment) Bill to be inconsistent with the Constitution, but on a ground not urged by the petitioner. Four other bills, including one referred under section 55,
were found to contain certain provisions which were also inconsistent with the Constitution.
Between 1978 and 1981, 230 bills were placed on the Order
Paper of Parliament. Of them, the Supreme Court examined 20 bills
(i.e. 8 per cent), 19 of which had been referred to the Court by
the President in terms of Article 122(1) (b) on the ground that
they were urgent in the national interest. The single bill, the
329
constitutionality of which was the subject of a full argument,
namely, the Essential Public Services Bill, was found to contain
one provision which could not be passed by Parliament alone, but
which also required approval at a referendum. The Court was of
the view that five of the bills referred to it for a special determination within 24 hours, namely,
Universities Bill
National Housing (Amendment) Bill
Proscribing of Liberation Tigers of Tamil Eelam and Other
Similar Organisations (Amendment) Bill
Development Councils Bill
Third Amendment to the Constitution
contained provisions which either required to be passed by a special
majority or by a special majority followed by approval at a referendum.
Enforcement of Fundamental Rights
At the end of ten years, only four fundamental rights had
been successfully invoked in respect of proposed legislation. Only
six bills were judicially found to contain provisions which infringed
the protected rights and freedoms.
Freedom of Religion
The Church of Sri Lanka (Consequential Provisions) Bill was
presented to the National State Assembly by a private member. Following a decision by the Church of Ceylon, the Methodist Church of
Ceylon, the Churches affiliated to the Sri Lanka Baptist Sangamaya,
the Presbytery of Lanka and the Jaffna Diocese of the Church of South
India to surrender their separate existence (a fact asserted in the
preamble to the bill) and to join together to form a united church
called the Church of Sri Lanka, this bill sought to establish a
Trust Association of the Church of Sri Lanka in which would vest
the properties of the five uniting churches. The bill was challenged by a number of clergymen as well as laymen who disputed the
claim in the preamble that the five churches had indeed decided to
surrender their separate existence. On the evidence placed before
it, the Constitutional Court found that at least three of the
churches had not duly decided to join the Church of Sri Lanka, and
that even if they had, the decisions were invalid. If, therefore,
the property of those three churches, including the places of worship, vested in the proposed new trust association, those who
resorted to those churches for the performance of their religious
330
observances would no longer have a church building of their own for
the practice of their religion. Accordingly, the Court held that
section 18(1)(d) was infringed. Once the churches to which they
resorted for their worship were taken away, their right to freedom
of peaceful assembly and association under section 18(1)(f) was
also infringed.^- The bill was withdrawn.
Freedom of Assembly and Association
The Greater Colombo Economic Commission Bill sought to establish a corporate body for the purpose of attracting foreign capital
for investment in Sri Lanka. The commission would be authorised to
grant certain facilities and concessions to business enterprises
within its two hundred square-mile area of authority. The commission would have the power to enter into any agreement with any enterprise, and in so doing, it could grant exemptions from certain
scheduled laws or modify or vary the application of such laws to
such agreement in accordance with regulations made by the Minister.
The bill provided, inter alia, that the Minister may by regulation:
(a) determine the scope and extent of any exemption or modification
of the scheduled laws which may be embodied in an agreement, and
(b) modify or alter the provisions of any scheduled laws in their
application to the area of authority of the commission. The Court
accepted the submission that the power sought to be conferred on the
Minister could be exercised for the purpose of amending the Trade
Union Ordinance, which was one of the scheduled laws, by making
regulations prohibiting the formation of trade unions. This would
2
constitute an infringement of section 18(1 )(f). In the National
State Assembly, the Prime Minister announced that the offending
3
provision would be deleted.
Right to Equal Protection of the Law •
The Greater Colombo Economic Commission Bill noted above also
sought to empower the commission, inter alia, to stipulate minimum
wages for employees in any enterprise and to prescribe their conditions of service. Thereby, the commission would be empowered to
vary the conditions of service, including minimum wages which had
already been determined by law. The Constitutional Court held that
(1975) DCC, Vol.3, p.5.
(1978) DCC, Vol.6, p.5.
National State Assembly Debates, 19 January 1978, col.247.
331
this would enable the comnission to discriminate between enterprises similarly placed and in like circumstances. Accordingly,
this provision was inconsistent with section 18(1)(a) The Government accepted this decision and moved to delete the offending
. . 2
provision.
The Excise (Amendment) Bill sought to confer a new power on
the Minister in the following terms:
Notwithstanding anything in this Ordinance, if upon
representations made or otherwise, the Minister
considers it necessary to do so, he may without
assigning any reason therefor, direct the authority
granting a licence, to grant a licence, or to renew
or cancel a licence, and such authority shall give
effect to such direction.
The Constitutional Court observed that the bill made no classification of the persons or class of persons for the purpose of applying
this new provision, but left it to the absolute and uncontrolled
discretion of the Minister. The bill also did not lay down any
principle or policy for guiding the exercise of discretion by the
Minister in the matter of selection or classification. It, however,
gave wide and uncontrolled power to the Minister to discriminate
between persons similarly situated and therefore the discrimination
was inherent in the bill itself. In the result, the bill, while
giving the power to the Minister to discriminate between persons in
like situations, provided no differentia which had a reasonable basis
in terms of some rational view of the public interest. Accordingly,
3
the Court held that the bill was inconsistent with section 18(1)(a).
The bill, however, was moved in its original form and passed with
the special majority required to enact laws inconsistent with the
4
Constitution.
The Local Authorities (Imposition of Civic Disabilities) (No.2)
Bill sought to impose civic disabilities on certain persons named
in the schedule against whom findings had been made by a commission
of inquiry “as it has become necessary to do so in the public
interest”. It was submitted that not only did the schedule include
the names of persons against whom no specific findings had been made
in the report of the comnission, but that certain persons against
(1978) DCC, Vol.6, p.5.
National State Assembly Debates, 19 January 1978, col.247.
(1977) DCC, Vol.5, p.14.
Excise (Amendment) Law, No.14 of 1977.
332
whom findings had in fact been made were not so included. In order
to verify this contention, the Court looked at the report of the
conmission and found that nine of the persons named in the schedule
had no findings recorded against them, while six persons against
whom findings had been made were omitted from the schedule. The
Constitutional Court held that the relevant provisions of the bill
were inconsistent with section 18(1)(a) for two reasons: firstly,
the National State Assembly was seeking through this bill to select
persons on some basis other than on the findings by the comnission
in its report; secondly, the classification of these persons was
arbitrary and had no relation to the objects sought to be achieved
by the bill.’*’ The Government did not move to amend the bill, but
2
used its two-thirds majority to pass it in its original form.
Freedom from Torture
The Essential Public Services Bill sought to provide for the
declaration of specified services provided by certain government
departments, public corporations, local authorities and co-operative
societies as “essential public services”, and to make provision,
including sanctions and punishments, to ensure that those services
were carried out unimpeded and uninterrupted. Clause 4 of the bill
sought to provide for punishment. An offender would be liable, on
conviction, to imprisonment ranging from a minimum of two years to
a maximum of five years, or to a fine ranging from Rs.2,000 to a
maximum of Rs.5,000, or to both imprisonment and fine. Additionally,
he would also be liable to a mandatory forfeiture of all movable and
immovable property and, in the event the offender was registered
under any law to practise any profession or vocation, the mandatory
removal of his name from such register. It was argued that these
punishment provisions contravened Article 11. The Attorney-General
countered that all these forms of punishment were already recognised
by existing law. The Court observed that “the piling of punishment
on punishment indiscriminately, whether they be old forms of punishment or new, must pass the test of Article 11, if they are to be
valid”; it was not a case of mere excessiveness of the punishment,
but one of inhuman treatment and punishment. Accordingly, it held
(1978) DCC, Vol.6, p.30. See also p.26 for Bill No.2.
Local Authorities (Imposition of Civic Disabilities)(No.1)
(No.2) Laws, Nos.38 and 39 of 1978. See also National State Assbly Debates, 11 August 1978, cols.1725-1952.
333
that:
the compulsory forfeiture of property and the
erasure of the offender’s name from his professional register, in addition to compulsory imprisonment or fine, constitute excessive punishment
and savours of cruelty. In our view, clause 4(2)
of the Bill contravenes Article 11 of the Constitution. It is not our view that the mandatory
confiscation of property or the removal from the
register of a profession is inherently bad, or
that all these punishments cannot be applied
together in a serious and fit case. Our objection is to their mandatory nature and to their
indiscriminate application ad terrorem, irrespective of the nature of the offence or the culpability of the offender.1
In Parliament, the government moved to amend the offending provision
by making the forfeiture of property and the removal of a name from
the register discretionary: the Court may impose these additional
punishments if it was of the opinion that there were sufficient
2
grounds for doing so. Thereby, the Government avoided the necessity
for approval of the bill by the people at a referendum.
An Assessment
The 1972 and 1978 Constitutions both offered a special forum
and a special procedure whereby any citizen, irrespective of whether
or not he had an “interest” in the matter, could canvass the constitutionality of proposed legislation. No longer did such a person
have to concern himself with extraneous issues of a preliminary
nature in order not only to acquire a locus standi, but also to vest
the forum of his choice with jurisdiction. Laws achieved certainty
upon enactment, in the sense that their validity was thereafter not
open to question.
There were, however, inherent defects in the system devised
by the Constituent Assembly and subsequently adopted, with slight
modifications, in the 1978 Constitution:
Publication of a bill in the gazette did not provide it with
sufficient publicity to enable it to be read and examined by
at least a cross section of the adult population during the
period within which proceedings could be initiated to test its
constitutionality. This defect is one that can be remedied by
requiring a bill to be published in one or more of the national
Parliamentary Debates, 2 October 1979, cols.421-422.
Ibid., cols.448-838. See also Essential Public Services
Act No.61 of 1979.
334
newspapers as well.
The time limit of fourteen days originally precribed for the
Constitutional Court to comnunicate its decision to the legislature was quite inadequate; the present limit of twenty-one
days is more reasonable, although a period of one month would
perhaps be more realistic.
The requirement that a bill which the Cabinet has certified as
“urgent in the national interest” should be examined and reported upon by the Court within 24 hours is the very antithesis of
judicial review. Apart from the entire proceedings being
shrouded in secrecy, with no publicity being given either to
the bill or to the fact that a Court is about to examine it, it
is inconceivable that any body of men, however astute or learned,
could, unaided except by the Government’s lawyer, subject a bill
to the scrutiny and examination that any measure which seeks to
encroach upon a fundamental right deserves. Section 55 of the
1972 Constitution was originally intended to be the answer to a
finance minister’s pre-budget nightmare. If so, the application
of the present Article 122 ought to be restricted to financial
measures which are urgent in the national interest. Alternatively, any bill which is enacted without having been previously
published in the gazette (and therefore not examined for inconsistency at the instance of a citizen) should be liable to be
impugned within a prescribed period of such enactment.
The procedure relating to amendments is unsatisfactory. If the
concept of the judicial review of proposed legislation is now
accepted, it must surely cover not only the original bill but
also any amendments that are intended to be moved in the legislature before that bill becomes a law. This is particularly
important in view of an allegation which was made in 1979 by the
Opposition that an entirely new clause which had not even been
moved on the floor of the house had found its way into an Act of
Parliament.^
The printed version of the Special Presidential Commissions
of Inquiry (Special Provisions) Act, No.4 of 1978, contained the
following section:
“8. The following new section is hereby inserted immediately
after section 21 of the principal enactment and shall have
335
The Sri Lankan experience of the judicial review of bills
demonstrates very vividly that constitutional provisions alone
can achieve very little if the will and the desire to implement
them in the spirit in which they were enacted, is absent. The
Constitutional Court appears to have been preoccupied with the
effect as section 21A of that enactment:-
Effect of
this law
notwithstanding
inconsistencies .
(b)
(c)
21 A. The provisions of this Law and any warrant
issued under the provisions of this Law shall be
so interpreted and given full force and effect in
order that any commission shall have full authority,
power and jurisdiction to inquire into the conduct
of any Prime Minister, Minister or other public
officer including –
(a) the misuse or abuse of power, interference,
fraud, corruption or nepotism,
any political victimisation of any person,
any irregularity –
i. in the making of any appointment or
transfer of any person,
ii. in the granting of any promotion to any
person,
iii. in the termination of the services of any
person,
(d) the contravention of any written law,
by or on the part of any Prime Minister, Minister
or other public officer and the extent to which he
is so responsible, notwithstanding that the conferment of the authority, power or jurisdiction on a
commission to hold an inquiry into such conduct may
be or may have been or may be construed to be or to
have been inconsistent with the provisions of section 46(1) or any other section of the Ceylon
(Constitution) Order in Council 1946, or section
92 or section 106(5) or any other section of the
Constitution of Sri Lanka adopted and enacted on
22nd May 1972″.
This section did not appear in the printed bill. The verbatim
record of Parliamentary Debates, Hansard, of 20 November 1978, did
not contain any reference to this section. The minutes of Parliament made no mention of this section. The tape recording of the
proceedings of 20 November 1978 had, according to the Speaker,
been erased on the following day. When, on 4 December 1978, the
Leader of the Opposition raised the matter of “this rather mysterious section” in the House after having previously mentioned it to
the Speaker, the latter replied that “from the information I have
I gather that there have been certain precedents set in this House
since 1972 where the Legal Draftsman and the Attorney-General have,
subsequent to the passing of bills, included certain provisions”
(col.646). Later that day, the Speaker made a further announcement:
“I have looked into this matter and find that this amendment
was also handed in to me by the Minister of Trade and Shipping at the time he moved amendments to this Bill during the
committee stage, stating that there were further amendments,
336
urgent need “to carry forward the progressive advancement towards
the establishment in Sri Lanka of a socialist democracy”. This
was undoubtedly one of the foremost principles of state policy
enunciated in the 1972 Constitution, and was intended to serve as
a guide to “the making of laws and the governance of Sri Lanka”.
But the Constitutional Court’s function was neither the making of
laws nor the governance of Sri Lanka. That task had been entrusted
by the people to their elected representatives sitting in the
National State Assembly and functioning in the Cabinet of Ministers.
The duty of the Constitutional Court was to examine the laws which
these representatives intended to make in order to ensure, inter
alia, that they did not encroach upon that area of individual liberty
the boundaries of which had been demarcated in the Constitution.
Of course, the fundamental rights were not absolute, but were
subject to restrictions which the legislature was entitled to prescribe in certain defined circumstances.. But those circumstances,
whether it be “national security”, “the protection of public health
or morals”, or “giving effect to the Principles of State Policy”,
were all exceptions to the rule. In the hands of the Constitutional
Court, particularly during the SLFP administration, the scales often
appeared to be tilted, but hardly ever due to the tonnage of human
liberty.
additional copies of which, however, were not available to
be distributed, (cols.754-755).
On 6 December 1978, the Prime Minister made a statement on this matter.
(He had been present in the House when the Speaker made his first
response two days previously). He explained that on 20 November,
shortly after he had presented the bill and had retired to his room,
he had received information from “a certain person known to me” that
Mrs.Bandaranaike had filed a fresh application in the Supreme Court
against the Special Presidential Commission of Inquiry. He was shown
a copy of her application:
“I asked the Attorney-General, who was in the Official’s
Box, to go through the writ application and gave him
specific instructions that we must close all loopholes
so that nobody could go through them.”
He said that this section was then prepared by the Attorney-General.
He read out a statement from Attorney-General Pasupati confirming
what he had said. In his statement, the Attorney-General said that
he actually recalled the Minister of Trade and Shipping reading out
this new section on the floor of the House, (cols.1070-1080).
An Opposition motion for the appointment of a select committee to
investigate and report on whether “a clause which had neither been ironed
in, nor passed by, Parliament had been interpolated” after the bill
had been read a third time and passed, was not proceeded with.
337
If the Constitutional Court was misguided by its own enthusiastic comnitment to a socialist democracy, the attitude of the
Government, particularly after the general election of 1977, was
indefensible. Rejecting the spirit not only of the Constitution
which it inherited, but also of that which it fathered, the Cabinet
misused section 55 of one and Article 122 of the other, to deprive
the citizen of his right to test the constitutionality of the
intended exercise of legislative power. Thereby, the Government
ensured that in the complex matter of legislation, the fundamental
rights of the individual, together with all the elaborate arrangements made for their protection and enforcement, would remain quite
ineffective and impotent.
No assessment of the judicial review of bills would be complete
without a reference to the strange phenomena of extraordinarily
large majorities which the electorate offered the governments
elected to office in 1970 and 1977. With a two-thirds majority
readily available, the constitutional sanctions imposed on the
exercise of legislative power had little or no significance. Court
decisions, whether they be of the Constitutional Court or of the
Supreme Court, whether they approved or condemned, were only of
academic interest and value. Their relevance, insofar as influencing the course of legislative history, was minimal.
CHAPTER VI
JUDICIAL REVIEW OF EXECUTIVE ACTION
In this chapter it is proposed to examine the effectiveness
of the remedies made available in Sri Lanka to persons who claimed
that their fundamental rights protected by the Constitution had
been, or were about to be, infringed by executive action. This
will involve an examination both of the traditional remedies which
were available under the 1972 Constitution and of the special
remedy created by the 1978 Constitution. It must be noted that,
however desirable it might have been, it was not possible for a
court or tribunal under either Constitution to have inquired into
or pronounced upon, or in any manner called in question, the
validity of a statute if such statute was relied upon as authority
for the impugned executive act.
Traditional Remedies
Section 18(1) of the 1972 Constitution declared the fundamental rights which citizens and other persons in Sri Lanka were
entitled to. Neither that section nor any other provision of the
Constitution assured that those rights would be justiciable, or
indicated how an infringement of any of them could be prevented or
redressed.^ Therefore, in order to enforce a right, an aggrieved
party had necessarily to rely upon the traditional remedies. These
were the prerogative writs, the declaratory judgment, the injunction, damages and bail. It is proposed to examine whether these
remedies were capable of being adapted for this purpose, particularly in the absence of any constitutional direction to that effect.
This examination will be made on the basis of the law applicable
when that Constitution was brought into operation.
The justiciability of the fundamental rights could perhaps
have been inferred from s. 17 which, unlike s. 18, expressly declared
that the provisions of s.16 which contained the Principles of State
Policy Mdo not confer legal rights and are not enforceable in any
court”. See also the assurance given by the Minister of Constitutional Affairs in the Constituent Assembly, supra, p.130.
339
The Nature and Scope of the Traditional Remedies
The Prerogative Writs
The prerogative writs were discretionary remedies which
originated in England many centuries before the advent of the
concept of justiciable human rights.’*’ Some of them were first
introduced into Sri Lanka by the Charter of Justice of 1801,
shortly after the British occupation of the maritime provinces.
At the commencement of the 1972 Constitution, section 42 of the
Courts Ordinance empowered the Supreme Court or any judge thereof
“to grant and issue, according to law, mandates in the nature of
writs of mandamus, quo warranto, certiorari, procedendo and
prohibition against any District Judge, Commissioner, Magistrate,
or other person or tribunal”. The expression “according to law”
2
had been interpreted very early to mean the English law. As the
Supreme Court later explained:
That means that the writs would issue in the circumstances and under the conditions known to the English
law. These would include the persons against whom
the writs would issue.^
It also meant that along with these remedies, Ceylon had also
inherited even the “pricklier parts of the historical undergrowth
4
of the law of the remedies”. Principles and procedural technicalities established in the dim distant past when these remedies served
purposes different from those of the present, thus continued to
regulate their application. The writ of habeas corpus, which
unlike the other writs was a writ of right, was introduced by the
Charter of Justice of 1833. The Supreme Court or any judge thereof
was authorised to issue this writ to have brought before such court
or judge (a) the body of any person to be dealt with according to
law, or (b) the body of any person illegally or improperly detained
in public or private custody.^
For the historical origins of the prerogative writs, see
S.A.de Smith, Judicial Review of Administrative Action, 4th ed.
(London: Stevens & Sons Ltd, 1980),pp.584-603.
Grenier’s Reports, p. 125, per Creasy CJ* in 1873.
Wijesekera v. Assistant Government Agent, Matara (1943)
44 NLR 533, per De Kretser J. Approved by a Divisional Bench in
Abdul Thassim v. Edmund Rodrigo (1947) 48 NLR 121.
De Smith, Judicial Review, op.cit., at p.380.
Courts Ord., s.45.
340
Habeas Corpus, The mandate in the nature of a writ of
habeas corpus, which the Supreme Court was authorised to grant,
was the equivalent of the writ of habeas corpus ad subjiciendum
known to the English law.’*’ This, according to Halsbury,
is a prerogative process for securing the liberty
of the subject by affording an effective means of
immediate release from unlawful or unjustifiable ^
detention, whether in prison or in private custody.
In Ceylon, however, this writ had been sought more often for the
determination of the custody of minor children than in aid of the
liberty of the subject. The few successful, applications of the
latter category included the release from custody of a British
subject held on a deportation order made in excess of his powers
3
by the Governor; the release of a non-citizen held on an invalid
4
removal order made under the Imnigrants and Emigrants Act; the
release of a prisoner at large arrested by a police officer without
a warrant and confined in prison without an order of remand from a
5
magistrate; and the release of a person remanded by a magistrate
following his arrest by a police officer acting under an emergency
regulation but without the requisite personal knowledge of the
commission of an offence required by that regulation.
An applicant for a writ of habeas corpus had to satisfy the
Court by affidavit that his detention was unlawful.^ He could make
successive applications to different judges, provided they were not
8 9 made vexatiously or frivolously. In John Nadar v. Grey, T.S.Fernando J considered the production by the respondent of an order,
warrant of commitment or other document valid in law justifying the
detention to be a sufficient answer. But in Avaummah v. Solomons,^
six years later, Herat J disagreed: it is not a sufficient answer
to justify the alleged illegal detention to merely say that the
respondent is holding the corpus under an order made by some other
In re Liyane Aratchie (1958) 60 NLR 529.
Vol.11, 3rd ed., p.24.
In re M. A. L. Bracegirdle (1937) 39 NLR 193.
Sellamuttu v. Solomons (1964) 66 NLR 307.
Kolugala v. Superintendent of Prisons (1961) 66 NLR 412.
Gunaseke’ra v. De Fonseka (1972) 75 NLR 246.
In re Liyane Aratchie, supra.
In re P.C.Siriwardene (1929) 31 NLR 111; Weerasinghe v. Samarasinghe (1966) 69 NLR 262.
(1956) 58 NLR 85.
(1962) 64 NIR 167.
341
executive officer of the Crown; it is necessary for the respondent
to satisfy the Court as to the legality of the order under which he
purports to detain the corpus. By 1972, the Supreme Court, still
very much under the influence of Liversidge v. Anderson,’*’ was more
2
inclined to the former view.
Following a declaration of martial law, the Supreme Court had
declined to issue a mandate for the production of a person who was
being detained in military custody by order of the General Officer
3
Commanding the Troops. Wood Renton J explained:
When martial law in the sense with which we have to do
in the present case is involved, the function of municipal courts is limited. They have the right to inquire,
and the duty of inquiring, into the question of fact,
whether an’actual state of war’ exists or not. But when
once that question has been answered in the affirmative,
the acts of the military authorities in the exercise of
their martial law powers are no longer justiciable by
the municipal courts.^
That was in 1915, when Europe was at war and the resources of the
British Empire were being drawn upon in all directions for military
purposes. In Ceylon, relations between the Sinhalese and Muslim
canmunities had also erupted into violence: “domestic disturbances
which present all the features of actual warfare and which justify
such measures for the public security”.^ But many years later,
following the assassination of a prime minister, the GovernorGeneral purported, by a regulation made under the Public Security
Ordinance, to suspend the application of section 45 of the Courts
Ordinance to persons detained or held in cusotdy under any emergency
regulation. The legality of the suspension was not questioned on
that occasion, but when its repetition some years later was, the
Supreme Court did “not think there is anything alarming or startling
about the suspension of the writ”.^ Alles J explained:
If written constitutions like those of the United States
and India, which recognise the liberty of the subject as
a fundamental right, can make provision for the suspension of Habeas Corpus in their constitutions in certain
circumstances, I see no reason why our Sovereign Parliament [sic] cannot make such a provision by legislation y
and call for such a suspension in times of grave emergency.
[1942] AC 206.
Hirdaramani v. Ratnavale (1971) 75 NLR 67.
In re W.A.de Silva (1915) 18 NLR 277.
Ibid., at 279.
Ibid.
Gunasekera v. Ratnavale (1972) 76 NLR 316.
ibid., at 334.
342
Judicial authority, therefore, existed for the proposition that at
moments when this remedy was most needed to protect the citizen
from the almost absolute power arrogated to itself by the executive,
it can simply be suspended or made inoperative by executive fiat.
Mandamus. The writ of mandamus lay to secure the performance of an existing public duty. It was essentially a discretionary remedy, and “not a writ that is to issue of course, or to be
granted for asking”.’*’ The applicant had to satisfy the Court that
he had a sufficient legal interest in the performance of the public
duty, and that performance had been refused by the authority obliged
2
to discharge it. The duty to be performed had to be of a public
nature. Mandamus had been successfully invoked in Sri Lanka to
3
have a name inserted on an electoral register; to have such regi4
ster exhibited as required by law; to compel a returning officer
to hold an election in accordance with law;^ and to compel a mayor
g
to allow a matter to be discussed at a council meeting. Where a
person had been wrongfully deprived of an office, this writ lay to
restore him, provided the office was of a public character.^
In compelling the performance of a public duty, the Court had
also to consider whether the duty was of a judicial or of a merely
ministerial character. In the latter case, the Court could compel
the specific act to be done in the manner which to it seemed lawful.
If the duty was of a judicial character, a mandamus was granted only
g
where there had been a refusal to perform it in any way; not where
Shortt on Mandamus, p.224, quoted by Howard CJ in Perera v.
Sockalingam Chettiar (1946) 47 NLR 265.
Refusal could be inferred from continued silence or might
be expressed by words: Wiiesekera Sc Co.Ltd v. Principal Collector
of Customs (1951) 53 NLR 329. In respect of duties which affected
the public at large, as distinct from duties of a private nature,
a literal demand and refusal might, however, not be necessary:
Amugodage James v. Balasingham (1950) 52 NLR 321.
Peries v. Gunaratne (1946) 47 NLR 491.
Wijesekera v. Assistant Government Agent, Matara, supra.
In re Chairman, Municipal Council, Galle (19Q6T~5 NLR 156;
In re Government Agent, Northern Province (1927) 28 NLR 323; Joseph
v. Kannangara (1943) 45 NLR 63.
De Silva v. Schockman (1939) 41 NLR 97.
A municipal charity commissioner held a public office: Wijesinghe v. Mayor of Colombo (1948) 50 NLR 87, while a municipal medical officer did not: Perera v. Municipal Council of Colombo (1947)
48 NLR 66. See also Rodrigo v. Municipal Council, Galle (1947)
(1947) 49 NLR 89.
Peries v. Gunaratne, supra.
343
it had been done in one way rather than another, even though the
method adopted might have been erroneous.^ The Supreme Court also
intervened where an authority in whom was vested a discretion of a
judicial nature had, in the exercise of his discretion, applied
2
arbitrary or unjust rules or a wrong principle of law, or had been
influenced by extraneous considerations which he ought not to have
3
taken into account.
Mandamus issued only against a natural person who held a
4
public office. It did not lie against a servant of the Crown where
the duty sought to be enforced was not imposed on the servant himself but was imposed on him only in the capacity of agent for the
Crown.Accordingly, the Supreme Court has held that mandamus did
not lie to require an assistant government agent to pay compensation
in respect of land acquired by the State. But where the duty had
been directly imposed by statute upon a Crown servant or persona
designata, and the duty was to be wholly discharged by him in his
own official capacity, as distinct from his capacity as a mere agent
for the Crown, a writ of mandamus would issue at the instance of a
person who had a direct and substantial interest in securing the
performance of that duty.^
The remedy of mandamus was not granted by way of a prohibitory
injunction requiring a person to refrain from doing something
g
unlawful. Nor was it granted to compel the performance of a duty
which might arise in the future; there had to be an existing duty
and an existing right in someone to have it performed. The Supreme
Norman v. Perera (1900) 4 NLR 85; Fernando v. Rubber Controller (1924) 26 NLR 211; In_ re Government Agent, Western Province
(1928) 30 NLR 81; Samynathan v. Whitehom (1934) 35 NLR 225; In re
Assistant Govemnent Agent, Uva (1937) 39 NLR 450; De Zoysa v. Dyson
(1945) 46 NLR 351; Qrr v. District Judge, Kalutara (1948) 49 NLR 204.
Noordeen v. Chairman, Village Committee, Godapitiya (1943)
44 NLR 2941
Wijesuriya v. Moonesinghe (1959) 61 NLR 180.
Haniffa v. Chairman, Village Committee, Nawalapiyata (1963)
66 NLR 48″!
Munasinghe v. Devaraian (1955) 57 NLR 286.
iFifr ” —–
City Motor Transit Co.Ltd v. Wijesinghe (1961) 63 NLR 156.
Colombo Buddhist Theosophical Society Ltd v. De Silva (1961)
63 NLR 237.
Mohamadu v. De Silva (1949) 52 NLR 562.
344
Court has also refused to grant a mandamus to undo an act already
done, or to allow the validity of an act purported to have been
done under a statute to be tried: for example, the cancellation
of a licence which has been irregularly issued.’*’
Since the remedy was essentially discretionary in nature,
the following factors have generally militated against its issue:
a) the conduct of the applicant: Where there had been delay on the
part of an applicant, or where the Court had not been convinced
3
of the propriety of his motives, it has declined to issue
mandamus even though the substantive complaint might have been
established. A candidate at an election who had acquiesced in
the method of voting adopted at a meeting was held to be estopped
from applying for a writ of mandamus on the ground that the
procedure was irregular.^”
b) the availability of an alternative remedy: The existence of
another and equally convenient and effectual remedy provided by
law, e.g. a right of appeal or a civil action, has often led the
Court to decline to exercise its writ jurisdiction.^
c) futility of the order: The Court will not order that to be done
which either cannot be done or is already done, or would be
futile to do; for example, to place a motion on the agenda of
a meeting which has already been held, ^ or to direct the issueg
of a residence visa to a person who has already been deported.
Ibid.
Abdul Rahuman v. Mayor of Colombo (1965) 69 NLR 211.
Madanayake v. Schrader (1928) 29 NLR 389.
Inasitamby v. Government Agent, Northern Province (1932)
34 NLR 33.
Bank of Chettinad v. Tea Export Controller (1935) 37 NLR
190; Dankoluwa Tea Estates Ltd v . Tea Controller (1940) 42 NLR
36; Samynathan v. Whitehorn, supra; Rodrigo v. Municipal Council,
Galle (1947) 49 NLR 89. The alternative remedy need not be an
action at law; it may be by way of an appeal to a forum domesticum:
Cooray v. Grero (1954) 56 NLR 87.
Wimalasuriya v. Chairman, Urban Council, Matale (1927) 28
NLR 4171 Simon Silva v. Assistant Government Agent, Kalutara
(1931) 33 NLR 257.
Goonesinghe v. Mayor of Colombo (1944) 46 NLR 85. Cf. Local
Government Service Commission v. Urban Council, Panadura (19521
55 NLR 429; Seenivasagam v. Kiripamoorthy (1954) 56 NLR 450;
Samaraweera v. Balasuriya (1955) 58 NLR 118; Pathirana v. Goonesekera (1962) 66 NLR 464.
ITT Sethu Ramasamy v. Moragoda (1961) 63 NLR 115.
345
Certiorari and Prohibition. The principles governing
the issue of these two writs were very similar. Prohibition, however, was invoked at an earlier stage than certiorari. Prohibition
did not lie unless something remained to be done that a court could
prohibit. Certiorari did not lie unless something had been done
that a court could quash.’*’ The general principle which formed the
basis of the jurisdiction of the Supreme Court to grant the remedy
of certiorari is best stated in the oft-quoted words of Atkin LJ in
Rex v. Electricity Commissioners; Ex parte London Electricity Joint
Committee:
Whenever any body of persons having legal authority
to determine questions affecting the rights of subjects, and having the duty to act judicially act in
excess of their legal authority they are subject to
the controlling jurisdiction of the King’s Bench
Division exercised in these writs.2
In other words, before a body of persons could be made amenable to
this remedy, it had to be shown not only that such body had legal
authority to determine questions affecting the rights of subjects,
but also that such body was required to act judicially.
The circumstances in which a person or body of persons is
required to act judicially have been examined by Parker J in R.v.
Manchester Legal Aid Committee:
Where the decision is that of a court then, unless,
as in a case, for instance, of justices granting
excise licences, it is acting is a purely ministerial capacity, it is clearly under a duty to act
judicially. When on the other hand, the decision is
that of an administrative body and is actuated in
whole or in part by questions of policy, the duty to
act judicially may arise in the course of arriving
at the decision. Thus, if, in order to arrive at the
decision, the body concerned has to consider proposals and objections and consider evidence, then there
is a duty to act judicially in the course of that
inquiry.3
The following are some of the instances where the Supreme Court
has held that the duty to act judicially existed:
4
i. an arbitration under the Co-operative Societies Ordinance;
ii. the determination of the employment of an officer by the
Local Government Service Commission;^
For a full discussion, see De Smith, Judicial Review, ch.8.
[1924] 1 KB at 205.
[1952] 1 All ER 480, at 489.
Illangakoon v. Bogollagama (1948) 49 NLR 403; Sirisena v.
Kotawera-Udagama Co-operative Society (1949) 51 NLR 262.
Abeygunasekera v. LGSC (1949) 51 NLR 8; cf. Suriyaperuma v.
LGSC (1947) 48 NLR 433.
346
iii. the cancellation of a licence by the Controller of Textiles;’‘ iv. the granting of a road service licence by the Commissioner 2 of Motor Traffic; 3 v. the proceedings before a prison tribunal; vi. the making of a “punitive order” by the licensing authority 4 under the Licensing of Traders Act; vii. the proceedings of a labour tribunal, an arbitrator and an industrial court under the Industrial Disputes Act;”
viii. the determination of a revising officer appointed under the
g
Franchise Act;
ix. the determination of a prescribed officer appointed under the
Citizenship Act;^
x. the exercise by the Director of Education of his power under
g
the Education Code to remove the manager of a school;
xi. the determination by the Principal Collector of Customs that
a person “had been concerned” in the importation of prohibited
9
or restricted goods;
xii. the determination by a Minister of an appeal against a surcharge imposed by the Auditor-General under the Town Councils
Ordinance;^
xiii. the dismissal of a teacher by a university on the ground of
incapacity or misconduct.’”‘
Abdul Thassim v. Edmund Rodrigo, supra; overruled by the
Privy Council in Nakkuda Ali v. Jayaratne (1950) 51 NLR 457.
South Western Bus Co.Ltd v. Arumugam (1947) 48 NLR 385;
Kandy Qnnibus Co.Ltd v. Roberts (1954) 5o NLR 293.
Kolugala v. Superintendent of Prisons, supra.
Ibrahim v. Government Agent, Vavuniya (1966) 69 NLR 217.
Walker Sons St Co.Ltd v. Fry (1965) 68 NLR 73; overruled by
the Privy Council in United Engineering Workers Union v. Devenayagam (1967) 69 NIR 289.
Mudannayake v. Sivagnanasunderam (1951) 53 NLR 25.
Manickam v. Permanent Secretary, Ministry of Defence and
External Affairs (1960) 62 NLR 204.
Don Samuel v. De Silva (1959) 60 NLR 547.
Tennekoon v. Principal Collector of Customs (1959) 61 NLR
232.
Munasinghe v. Auditor-General (1961) 64 NLR 474.
Linus Silva v. University Council of the Vidyodaya University
(1961) 64 NLR 104; overruled by the Privy Council: 66 NLR 505.
347
If, on the other hand, an administrative body in arriving at
its decision at no stage has before it any form of lis and throughout has to consider the question from the point of view of policy
and expediency, it cannot be said that it is under a duty to act
judicially.^ Generally, the effect of such expressions as “if he
sees no objection” and “after such inquiry as he thinks fit” is
that the act contemplated is merely executive or ministerial and
2
not judicial. As a general rule, words such as “where it appears
to”, “if it appears to the satisfaction of”, “if the . . .considers
it expedient that”, or “if the . . . is satisfied that”, standing
by themselves without other words or circumstances of qualification,
3
exclude a duty to act judicially. These are the well-recognised
forms of expression by which Parliament, to an increasing extent,
entrusts the performance of various administrative functions to a
Minister or other high official, relying on the sanction that the
Minister will be answerable to Parliament in regard to the manner
in which those duties are performed. Accordingly, it has been held
that:
a) where the Controller of Textiles may cancel a licence if he
lfhas reasonable grounds to believe” that any dealer is unfit
4
to continue as such;
b) where the Minister may remove the chairman of a village committee from office on being satisfied “that there is sufficient
proof of” misconduct in the performance of his duties;”*
c) where the Minister may dissolve a municipal council “if it
appears” to him that such municipal council is not competent to
g
perform any duty or duties imposed upon it;
d) where a Government Agent “after such inquiry as he thinks fit”
may “if he sees no objection” grant a licence under the Public
Performances Ordinance;^
e) where the Minister may refuse an application for citizenship
“if he is satisfied” that it is not in the public interest to
g
grant the application,
each of the functionaries concerned was not under a duty to act
R^_ v. Manchester Legal Aid Committee, supra.
Munasinghe v. Jayasinghe (1958) 6l NLR 425.
Sugathadasa v. Jayasinghe (1958) 59 NLR 457.
Nakkuda Ali v. Jayaratne, supra.
Gunapala v. Kannangara (1955) 57 NLR 69.
Sugathadasa v. Jayasinghe, supra.
Munasinghe v. Jayasinghe, supra.
Leelawathie v. Minister of Defence and External Affairs (1965)
68 NLR W 7
348
judicially. Additionally, a person or body of persons entrusted by
law with the task of ascertaining facts is not required to act
judicially in the performance of that task. Accordingly, it has
been held by the Supreme Court that the function of a commission of
inquiry or that of an inquirer conducting an inquest cannot be described as judicial or even quasi-judicial over which the Court
could exercise any controlling jurisdiction. ^
The grounds on which certiorari had been successfully invoked
were:
(a) that the person or tribunal had acted without jurisdiction or
in excess of jurisdiction;^
(b) that an error of law had been apparent on the face of the record;
(c) that there had been a denial of natural justice: e.g. bias in
4
the judge, or a failure to observe the audi alteram partem
rule.’*
As in the case of mandamus, the Supreme Court has declined to intervene if an alternative and equally convenient remedy was available;
if there had been delay attributable to the petitioner;^ if no
g
benefit would have arisen by the grant of the writ; if the conduct
of the party making the application had been such as to disentitle
him to relief, e.g. where he had acquiesced in the irregularity
Dias v. Abeywardene (1966) 68 NLR 409; Seneviratne v. AttomeyGeneral~TT968) 71 NLR 439.
Kandy Chmibus Co.Ltd v. Roberts, supra; Illangakoon v.
Bogollagama, supra; Mohamed Miya v. Controller of Textiles (1947)
48 NLR 493; Simon Silva v. Debt Conciliation Board (1963) 65 NLR
139.
Mudannayake v. Sivagnanasunderam, supra; Manickam v. Permanent Secretary, Ministry of Defence and External Affairs, supra;
Hayleys Ltd v. Crosette Thambiah (1961) 63 NLR 248; Hayleys Ltd v.
De Silva (1962) 64 NLR 130; Virakesari Ltd v. Fernando (1963)
66 NLR 145.
Abdul Thassim v. Edmund Rodrigo, supra.
Munasinghe v. Auditor-General, supra; Don Samuel v.De Silva,
supra; Linus Silva v . University Council of the Vidyodaya University, supra (but cf. Privy Council judgment, supra); Mohmned & Co.
v. Controller of Textiles (1947) 48 NLR 461; Subramaniam v. Minister of Local Government and Cultural Affairs (1957) 59 NLR 254^
Vadamaradchy Hindu Educational Society v. Minister of Education
(1961) 63 NLR 322.
Sirisena v. Kotawera-Udagama Co-operative Society, supra.
Virakesari Ltd v. Fernando, supra!
Kiri Banda v. Government Agent, Uva (1944) 46 NLR 15.
349
complained of or had failed to take objection at the earliest oppor1 2
tunity; or if the application had been made prematurely. When
it was argued that the House of Representatives had not been properly constituted when it purported to enact the Motor Transport Act
and that consequently that legislative act was invalid, the Supreme
Court observed that it was relevant to consider, in deciding whether certiorari should issue, the probable consequences of granting
the writ:
In the present case, the consequences of granting the
writ can only be described as disastrous. It would
result in all the legislation passed by Parliament
since it came into existence and all its actions liable
to be regarded as illegal and of no effect. It would
affect the rights and liabilities of several thousands
of people who conducted their business activities and
their lives on the basis that legislation enacted by
Parliament is valid; it would disturb the peace and
quiet of the country; and, above all, it will bring the
government of the country to a standstill. I take the
view that in these circumstances, even if the grounds
on which the application is made are valid, no court
would exercise its discretion in favour of the petitioner . ^
In the final analysis, therefore, the writs of certiorari and
prohibition were not merely of limited application; they were also
essentially discretionary remedies. To invoke the jurisdiction of
the court it had to be established that the impugned tribunal was
under a duty to act judicially:
The true test to my mind of whether the writ lies is
what kind of function the law has imposed upon the
authority when acting within its statutory powers and
not what it has actually done acting outside of its
powers. If the answer to that question is that the
function imposed by law is judicial in character the
writ will lie to quash determinations or orders made
outside or in excess of its statutory authority, or
in breach of the rules of natural justice or where
there is error of law on the face of the record. Where
the function is not judicial in character, whatever
other remedies may be available, the prerogative writs
of certiorari and prohibition will not be available to
question acts of such authority which are ultra vires
of its legal powers.^”
But even where that stringent test had been satisfied, the Court may
yet decide not to grant the relief sought owing to extraneous factors
not directly related to the actual matter in dispute.
Ibid.
Ceylon Mineral Waters Ltd v. EJ, Anuradhapura (1966) 70 NLR 312.
P.S.Bus Co.Ltd v. Members’ and~Secretary,CTB (1958) 61 NLR 491.
Seneviratne v. Attorney-General, supra.
350
Quo Warranto. The writ of quo warranto was first issued
by the Supreme Court for the purpose of declaring an election to a
local authority null and void on the ground that the elected member
was not qualified to be so elected.^ There was at that time no
2
statutory authority for the issue of this writ, but the Court
acted in the exercise of its inherent power; it believed that “there
must be some means of trying title to office in such cases as the
present”. Thereafter, this writ has been invoked several times in
order to determine whether the holder of a public office (generally
a member elected to a local authority) is legally entitled to it.
Two essential requirements for the issue of this writ were that the
3
office usurped was of a public nature, and the person alleged to
have usurped it had assumed that office and was in actual possession
4
of it. The writ, being discretionary, was not granted where the
5 6
petitioner had acquiesced; where its issue would have been futile;
or where there had been unreasonable delay in making the application
to court.^
Procedendo. The writ of procedendo was addressed by a
superior to an inferior court directing the latter to proceed forthwith to deliver judgment, or remitting to an inferior court an action
which had been removed on insufficient grounds to the superior court
g
by habeas corpus, certiorari or any like writ. This remedy had
fallen into disuse and was of no relevance in 1972.
In re Election of a Councillor for the Galupiadda Ward of
the Galle Municipality (1905) 8 NLR 300. See also Re Election of
Danister Perera as Member of the Municipal Council of Galle (1906)
9 NLR 142.
This was provided by Ordinance No.4 of 1920.
Chandrasena v. De Silva (1961) 63 NLR 308.
Dharmaratne v. Commissioner of Elections (1950) 52 NLR 429;
Punchi Singho v. Perera (1950) 53 NLR 143.
GivenHrasinghe v. De Mel (1948) 49 NLR 422; Navaratnam v.
Sabapathy (1968) 71 NLR 566.
Peiris v. Gunasekera (1963) 66 NLR 498.
Wiiegoonewardene v. Kularatne (1950) 51 NLR 453.
Walter Pereira, Laws of Ceylon, 2nd ed. (Colombo, 1913),
pp.109-110.
351
The Declaratory Judgment
Section 217(G) of the Civil Procedure Code provided that a
decree or order of a civil court may, without affording any substantive relief or remedy, declare a right or status. Upon this
provision was founded the declaratory judgment. Such a judgment
could not be enforced, but, as Gratiaen J has observed:
Courts of justice have always assumed, so far without
disillusionment, that their declaratory decrees against
the Crown will be respected.-*-
Denning U knew of “no limit to the power of the court to grant a
declaration except such power as it may in its discretion impose
2
upon itself”. The declaratory jurisdiction in Ceylon was not
3
quite so wide as it was in England. It was confined to the declaration of a “right or status”. It has been held, moreover, that
in the exercise of this jurisdiction:
a court should not permit itself to be converted into
a forum for the discussion of purely academic problems
and ought therefore to be satisfied that the declaratory
decree asked for in any particular action relates to a
concrete and genuine dispute and would, if passed,
serve some real purpose in the event of future litigation between the same parties.^-
Yet, the declaratory judgment was much wider in scope than any of
the other traditional remedies, and had a distinct advantage over
the prerogative writs in that it was free of the technicalities of
procedure that circumscribed the operation of the latter, and since
no question of enforceability arose, the court was not restricted
or inhibited by the probable consequences attendant upon its order.
The Injunction
Section 20 of the Courts Ordinance authorised the Supreme
Court or any judge thereof to grant and issue injunctions to prevent
any irremediable mischief which might ensue before the party making
application for such injunction could prevent the same by bringing
an action in any original court. Therefore, the Supreme Court’s
power to grant an injunction was a strictly limited one, to be
exercised only on special grounds and in special circumstances:
Attorney-General v. Sabaratnam (1955) 57 NLR 481, at 485.
Barnard v. National Dock Labour Board [1953] 2 WLR 995, at 1009.
For the scope of this remedy in England, see I.Zamir,
The Declaratory Judgment (1962: London).
Naganathan v. Velautham (1953) 55 NLR 319, at 321, per
Gratiaen J.
352
(a) where irremediable mischief would ensue from the act sought to
be restrained;
(b) an action would lie for an injunction in some court of original
jurisdiction; and
(c) the plaintiff is prevented by some substantial cause from
applying to that court.
Such an injunction was usually sought after a prospective plaintiff
had given the required statutory thirty-days’ notice to the Crown
of his intention to institute an action in an original court. In
a fit case, the Supreme Court would grant the injunction after only
ex parte hearing and without notice to the opposite party.^ In order
that an injunction may issue, the Supreme Court did not consider it
necessary that it should be satisfied that a case existed which
would entitle the plaintiff to relief at all costs; it was quite
sufficient if the court found a case which showed that there was a
substantial question to be investigated and that matters ought to
be preserved in statu quo until that question could be finally
2
disposed of.
Section 86 of the Courts Ordinance empowered a District Court
or a Court of Requests to grant an interim injunction, as an incidental step in a proceeding instituted in such court:
(a) where it appeared from the plaint that the plaintiff is
entitled to a judgment against the defendant restraining the
caimission or continuance of an act which would produce injury
to the plaintiff;
(b) where it appeared that the defendant during the pendency of
the action is doing or is about to do an act which would render
the judgment ineffectual: or
(c) where it appeared that the defendant during the pendency of
the action is about to dispose of his property with intent to
defraud the plaintiff.
Such an injunction was granted on the basis of evidence tendered in
affidavit form, and was usually issued to accompany the summons.
Where, however, the court was of the view that the object of
granting the injunction would not be defeated by delay, and in
Mahamado v. Ibrahim (1895) 2 NLR 36; Buddhadasa v. Nadaraja
(1955) 56 NLR 537; Amolis Silva v. Tambiah (1961) 63 NLR 228.
Ratwatte v. Minister of Lands (1969) 72.NLR 60. See also
Yakkaduwa Sri Pragnarama Thero v. Minister of Education (1969) 71
NLR 506, where H.N.G.Fernando CJ applied the “balance of convenience”
rule.
353
every case where the application was made after the defendant had
answered, notice of application was first issued on the party
sought to be restrained.’‘ The proper question for decision upon such an application was “whether3 there is a serious matter to be tried at the hearing”. If it appeared frcm the pleadings already filed that such a matter did exist, the further question was whether the circumstances were such that a decree which might ultimately be entered in favour of the party seeking the injunction 2 would be nugatory or ineffective if the injunction was not issued. The fact that the judge thought on the evidence then available that the plaintiff could not succeed in his substantive action was not, 3 by itself, a ground for refusing an interim injunction. The Supreme Court has, however, emphasized that the fact that that Court had already issued an injunction under section 20 did not absolve the original court from the duty of considering the matter and of forming its own view, particularly where it came to consider the matter after the defendant had placed before it such material as he was permitted to place before it by law in support of his objection 4 to the grant of the injunction. An application under section 86 usually accompanied a plaint in which was sought either a declaration of a right or status, or a decree or order of court enjoining a person “not to do a specified act, or to abstain from specified conduct or behaviour”.’
Damages
A decree or order of court could command the person against
whom it operated to pay money. Accordingly, an action for damages
in tort or for breach of contract were also remedies which were
available for the vindication of rights. However, this remedy,
which was available even against the Crown,^ could be invoked only
after the alleged injustice had been suffered.
Bail
The courts in Ceylon had no common law power to admit persons
to bail. Its power and jurisdiction to do so was regulated by
Civil Procedure Code, s.664.
Dissanayake v. Agricultural and Industrial Credit Corporation
(1962) 64 NLR 283.
Ibid.
Ratwatte v. Minister of Lands, supra.
Civil Procedure Code, s.217(E).
Ibid., s.217(A).
Crown (Liability in Delict) Act, No.22 of 1969.
354
statute, namely, the Criminal Procedure Code and the Courts Ordinance.’*’ The former required a person accused of a bailable offence
to be released on bail if at any stage of a criminal proceeding he
was prepared to give bail; the court having a discretion whether or
2
not to discharge him on his simply executing a bond without sureties.
A magistrate or a district judge could, in his discretion, release
any person accused of a non-bail able offence, except where reasonable grounds existed for believing that such person had been guilty
of treason, fabricating false evidence to procure conviction of a
3
capital offence, or of murder. The Supreme Court had an unfettered
discretion to direct that any person, whether accused of a bailable
or non-bail able offence, be admitted to bail, as well as to reduce
4
or increase the quantum of bail required by a magistrate. In exercising this discretion, the main question which the Court usually
considered was whether it was possible that the accused would appear
to stand his trial and not abscond. In answering that question,
three considerations have been taken into account:
What is the nature of the crime ? Is it grave or trifling ?
The severity of the punishment upon conviction.
The probability of a conviction or the nature of the evidence
to be offered by the prosecution.^
The Supreme Court has, however, stressed that while “the favour
shown to freedom” will always influence Judges who approach questions
affecting the liberty of the subject, it must not be thought that the
grant of bail should be the rule and the refusal of bail should be
the exception where serious non-bailable offences were concerned.
This has not been the approach of the Supreme Court in interpreting and applying section 31 of the Courts Ordinance which
contained a statutory right to bail, however serious the offence
might have been. That section provided that if any prisoner committed for trial before the Supreme Court for any offence was not
brought to trial at the first criminal sessions after the date of
his commitment at which he might properly have been tried (provided
twenty-one days had elapsed between the date of commitment and the
In re Ganapathipillai (1920) 21 NLR 490; Kannusamy v. Minister of Defence and External Affairs (1961) 63 NLR 214.
S.394.
S.395.
S.396.
The Queen v . Liyanage (1963) 65 NLR 289.
Ibid.
355
first day of such criminal sessions), the Supreme Court or any
judge thereof shall admit him to bail, unless good cause be shown
to the contrary, or unless the trial shall have been postponed on
the application of such prisoner. The Supreme Court understood
this provision to contain “an important principle safeguarding the
liberty of the subject who has a right to be brought to trial with
reasonable despatch”.’*’ It emphasized that:
The liberty of the subject is an important personal
right enjoyed in democratic countries observing the
Rule of Law, and custody pending trial being an infringement of that liberty, the courts must be vigilant in ensuring that the infringement is restricted
to the limits spelled out by the legislature.2
Accordingly, the Court rejected the submission that since the indictment was the foundation of a trial and no person could be tried
unless an indictment had in fact been presented, the criminal sessions at which an accused “might properly be tried” would be a sess-
………………………….. 3 …………..
ions held after indictment had been served. If this submission had
been accepted, the Attorney-General could, by delaying to present an
indictment, have ensured that an accused person continued to remain
incarcerated. The preparation and service of the indictment was a
step involved in bringing a prisoner to trial, and by omitting to
take that step the State could have denied a prsioner his right to
liberty. T.S.Fernando ACJ expressed the attitude of the Court in
such matters thus:
The liberty of the subject is not a slogan as was
suggested, cynically so it appeared to us, during
the argument, but is a valuable right of a citizen
and the courts must be vigilant in ensuring that
it is not unprofitably thwarted.4′
Such then were the imperfections, shortcomings and inherent
limitations of the traditional remedies. The citizen was now
expected, by displaying sufficient ingenuity, to convince the court
of the urgent need to adapt them in order that they may serve to
realise the laudable aspirations of the new Constitution, despite
the fact that the Constitution itself did not require the courts to
so adapt them.
De Mel v. Attorney-General (1940) 47 NLR 136, at 137, per
Nihil1 J.
Premasiri v. Attorney-General (1967) 70 NLR 193, at 195,
per T.S.Fernando ACJ.
Ibid.
Ibid., at 199.
356
The Erosion of Traditional Remedies
The 1972 Constitution
Section 121(3) provided that the powers of the highest court
with original jurisdiction established by law for the administration of justice (which was then the Supreme Court) shall include
the power to issue mandates in the nature of writs. Ostensibly,
the writ jurisdiction had, for the first time, been entrenched in
a Constitution. But having so provided, the same section proceeded
to state an exception, namely, “except in matters expressly excluded by existing law or laws enacted by the National State Assembly”.
The Assembly was further empowered to enact such laws by a simple
majority of the members present and voting. Therefore, in effect,
what section 121(3) guaranteed was that whatever was left of the
writ jurisdiction, after giving effect to existing law which sought
to exclude it and any laws enacted in the future which may seek to
exclude it, will continue to be vested in the highest original
court. Had this section not been included in the Constitution, the
writ jurisdiction would not have been less secured. Indeed, by
specifically stating the exception, constitutional authority was
being given, for the first time, to the legislature to deny the
writ jurisdiction in respect of such “matters” as the legislature
may consider fit. Examining the Administration of Justice Bill,
the Constitutional Court held that the word “matters” in this
context “is a word of great amplitude”, and would include not only
subject matter but also persons and bodies.^
The Constitution itself prohibited certain matters of an
executive or administrative nature from being inquired into, or
being prcnxrced upon, by a court, namely:
i. anything done or omitted to be done by the President in his
2
official or private capacity;
ii. the question whether the President had, as required, acted
on the advice of the appropriate Minister or had omitted to
3
do so or had disregarded such advice;
iii. anything done, purported to be done or omitted to be done
by or in the National State Assembly, whether in the course
4
of its proceedings or otherwise;
(1973) DCC, Vol.l, p.57, at 65.
S.23(1).
S.27(2).
S.39(1), except as otherwise expressly provided in the Constitution.
357
iv. any recommendation, order or decision of the Cabinet of Ministers, a Minister, the State Services Advisory and Disciplinary Boards, or a state officer, regarding any matter concerning appointments, transfers, dismissals or disciplinary
control of state officers;’*’
v. any decision by the Cabinet on the question whether or not
the principal duty or duties of a state officer was the perfor2
mance of functions of a judicial nature.
Existing Law
“Final and conclusive” clauses. A few pre-Independence
enactments contained provisions which sought to oust the jurisdiction of the courts in respect of executive action. For instance,
section 9 of the Service Tenures Ordinance, No.4 of 1870, provided
that the determination made by commissioners appointed to inquire
into claims made under that Ordinance:
shall be final and conclusive in that or any future
proceeding, whether before the said commissioners or
any other judicial tribunal, as to the tenure of the
pangus in such village, whether it be praveni or
maruwena, the nature of the service due for and in
respect of each praveni pangu, and the annual amount
of money payment for which the services due for each
praveni pangu may be fairly commuted at the time those
registries are made.
In an 1884 decision, the Supreme Court upheld the submission that
the finality and conclusiveness conferred on the determination of
commissioners by section 9 did not extend to a determination made
3
outside the scope of their authority. In that case, it appeared
that the service tenure commissioners had travelled outside their
powers and entered in the register they were authorised to make
under the Ordinance particulars which they were not required to
determine or enter.
This restrictive approach to finality clauses was confirmed
by a Divisional Bench in Ladamuttu v. Attorney-General.^ In that
case, the Supreme Court examined the scope of section 3(4) of the
Land Redemption Ordinance, No.61 of 1942, which provided that the
question whether any land which the Land Commissioner was authorised
S.106(5).
S.110(2).
Bogolle Punchirala v. Kadapatwehera Ding (1884) 6 SCC 157.
(1957) 59 NLR 313.
358
to acquire under that Ordinance should or should not be acquired:
shall, subject to any regulations made in that
behalf, be determined by the Land Commissioner
in the exercise of his individual judgment and
every such determination of the Land Commissioner shall be final.
Did section 3(4) preclude a person from questioning the Land Commissioner’s determination by way of a regular action ? Basnayake CJ
explained:
In the first place . . . it is necessary to consider
what it is that the subsection declares shall be final.
It is the determination that any land which the Land
Commissioner is authorised to acquire under subsection
(1) should or should not be acquired. Therefore, if
the Land commissioner determines that he should acquire
any land which he is not authorised to acquire under
subsection (1) the requirements of subsection (4) are
not satisfied and the determination will not be final.
The Crown argued that finality attached to the Land Commissioner’s
decision whether he was or was not authorised by subsection (1) to
acquire the lands. Basnayake CJ thought this was “an astounding
proposition” to which he could not assent:
Now, when an Ordinance or an Act provides that a decision made by a statutory functionary to whom the task
of making a decision under the enactment is entrusted
shall be final, the Legislature assumes that the
functionary will arrive at his decision in accordance
with law and the rules of natural justice and after all
the prescribed conditions precedent to the making of
his decision have been fulfilled, and that where his
jurisdiction depends on a true construction of an
enactment he will construe it correctly. The Legislature also assumes that the functionary will keep to the
limits of the authority committed to him and will not
act in bad faith or from corrupt motives or exercise
his powers for purposes other than those specified in
the statute or be influenced by grounds alien or
irrelevant to the powers taken by the statute or act
unreasonably. To say that the word ‘final’ has the
effect of giving statutory sanction to a decision
however wrong, however contrary to the statute, however unreasonable or influenced by bad faith or corrupt
motives, is to give the word a meaning which it is
incapable of bearing and which the Legislature could
never have contemplated.^
He added:
To read the word ‘final’ in the sense which the learned
counsel for the Crown seeks to place upon it would amount
to giving the public functionary authority to act as he
Ibid., at 328.
Ibid., at 329.
359
pleases. It is unthinkable that the Legislature would
give such a blank authority to a functionary however
highly placed. Such powers are rarely given even when
the country is at war or is facing a crisis. It must
be presumed that the Legislature does not sanction
illegal acts on the part of functionaries. If it
intends to sanction unauthorised and illegal acts it
should say so in plain and unmistakable terms and not
use a word of such doubtful import as 1 final1. That
the subject should not be harassed by unauthorised
action on the part of statutory functionaries is as
much the concern of the Legislature as of the Courts
and once a piece of legislation has been put on the
statute book the Legislature as well as the public
looks to the Courts to exercise their controlling
authority against illegal and unjust use of the powers
conferred thereby, and the Courts will be failing in
their legitimate duty if they denied relief against ^
illegal action on the part of statutory functionaries.
“Shall not be called in question in any court” clauses.
By the late ‘Forties, the legislature was experimenting with a more
explicit formula to oust the jurisdiction of courts. Section 8 of
the Public Security Ordinance, No.25 of 1947, provided that:
No emergency regulation, and no order, rule or direction made or given thereunder shall be called in quest- …
ion in any court.
Section 12(3) of the Citizenship Act, No.18 of 1948, stated that the
refusal by the Minister to allow the application of any person for
registration as a citizen of Ceylon “shall be final and shall not
be contested in any court”.
The former provision was relied upon by the Attorney-General
2
in Hirdaramani v. Ratnavale. in support of his argument that the
Court had no jurisdiction to inquire into the validity or good
faith of a detention order made by the Permanent Secretary which
was valid on its face and applicable to a particular detainee. In
view of the apparent conflict between two decisions of the House of
Lords, H.N.G.Fernando CJ found himself “unable to reach with
certainty a firm opinion as to the scope of section 8″. G.P.A.Silva J,
Ibid., at 329. This point was not argued before the Privy
Council when the matter went up in appeal, but the Judicial Committee expressed its agreement with the Supreme Court’s view: Land
Commissioner v. Ladamuttu (1960) 62 NLR 169, at 180. See also
Wijerama v. Paul (1973) 76 NLR 241, where T.S.Fernando P, interpreting s.18(1) of the Medical Ordinance, No.26 of 1927, came to
the same conclusion.
(1971) 75 NLR 67.
Smith v. East Elloe Rural District Council [1956] AC 736;
and Anisminic Ltd v. Foreign Compensation Commission [1969] 2 AC 147.
360
however, chose to express his view on the matter, having regard to
the well-established rule of construction that statutes which have
the effect of infringing on the liberty of the subject must be
strictly construed:
It is beyond argument that the Courts can inquire into
a complaint by an aggrieved party, in the first instance,
that any particular rule, regulation or by-law is ultra
vires or that an enactment or rule has been misapplied
in his case. It is also the undoubted duty of the Court,
after such inquiry, either to pronounce on the validity
of the rule or regulation, or, where the validity is not
in doubt, to decide, inter alia, whether any power conferred on the executive by such rule or regulation has
been exercised in terms of such provision strictly construed. 1
He conceded that an incorrect decision by the Permanent Secretary
would not be justiciable by reason of the provision of section 8:
If of course he acts in bad faith in making an order . .
the provisions taking away the right of the Court to call
the order in question would not apply. On a very simple
analysis of the language involved in the regulation, it
seems to me that in such an event the Court’s jurisdiction to interfere remains untouched because, when the
Permanent Secretary acts in bad faith, he has obviously
not made the order of detention because he is of opinion
that the person in respect of whom the order is made is
likely to act in a manner prejudicial to the public
safety and that he should be prevented from so acting,
but because the Permanent Secretary has some other
obvious reason. Many such reasons can be imagined, the
simplest of which is that the officer is actuated by a
personal motive.2
According to G.P.A.Silva J, therefore, mala fide was an implied
exception to any exclusionary provision which on the face of it
precluded a court from questioning the validity of an order made
thereunder. Samarawickrema J agreed with him:
It is however open to a party challenging a detention
order to show, if he can do so, that the Permanent
Secretary never had the opinion that it was necessary
to make an order for the detention of the person named
and that the detention order was not made because he
had formed an opinion as required by the regulation but
for an ulterior object. For example, the order would
not be in terms of the regulation and would be a sham
if the Permanent Secretary were to make it for a purely
private purpose such as the detention of the rival to
the woman he loved. Again, if there is overwhelming
Hirdaramani v. Ratnavale, supra, at 104.
Ibid., at 107.
361
ground for believing that no reasonable Permanent
Secretary could form the opinion that it was necessary to make a detention order in respect of the
person affected, it might show that the Permanent
Secretary was acting in bad faith and that the detention order was not made on the basis of an opinion
required by the regulation but for an improper
purpose.1
A different view of the effect of section 8 was taken by
2
the majority in Gunasekera v. Ratnavale. Wijetilleke J considered that section 8 “can only apply to emergency regulations duly
made” and to order, rules or directions “validly made” under such
regulation:
If such orders are not validly given they would not
be 1 orders1 within the meaning of section 5; so that
in effect this Court has the power and jurisdiction
to question the legality and/or propriety of an
order purported to have been made male fide.3
The other two Judges did not agree. Alles J, following the East
Elloe case, thought that:
If plain words have to be given their plain meaning,
the effect of section 8 must necessarily be intended
to oust the jurisdiction of the Court in regard to
the right to question the validity of a detention
order . . .In such event, the issue of good faith
also will not be justiciable.^
He conceded that the language used in section 8, while making the
intention of Parliament manifestly clear “must necessarily shock
the conscience of the Court and disturb any legal mind who has
respect for the Rule of Law”. Thamotheram J distinguished the
Anisminic case on the ground that it did not deal with executive
discretion but with a tribunal, and held that in the face of section 8, it was not open to the Court to inquire into an allegation
of mala fide where the determination or order was prima facie
valid. The reasoning of the majority in East Elloe commended
itself to him; particularly the observations of Viscount Simon:
But no one can suppose that an order bears upon its
face the evidence of bad faith. It cannot be predicated of any order that it has been made in bad faith
until it has been tested in legal proceedings, and it
is just that test which paragraph 16 (equivalent to
section 8) bars. How, then, can it be said that any
qualification can be introduced to limit the meaning
of the words ?
Ibid., at 112. 2. (1972) 76 NIPL 316.
Ibid., at 347. 4. Ibid., at 334.
362
He did not share Alles J’s distaste for the language of section 8.
The Court must accept the supremacy of Parliament and “should not
be carried away by any feeling of outrage it may justifiably or
otherwise have of the restrictions of personal freedom by Parliament”.^
This, then, was the uncertain state of the law in 1972. The
two cases cited above both arose out of the turbulent events following Ceylon’s first armed insurrection. Having regard to the
Supreme Court’s attitude to earlier attempts at ousting the jurisdiction of courts, it seemed probable that, “when the battle flags
were furled and the war drums throbbed no longer”, when peace
returned to the countryside and the normal tempo of life was restored, the Courts too would revert to their traditional concern for
individual liberty. But that was not to be. In May 1972, barely
ten days before the new Constitution came into operation, Parliament amended the Interpretation Ordinance with devastating effect
on many of the traditional remedies.
Interpretation (Amendment) Act, No.18 of 1972.
The Governments headed by Mrs. Bandaranaike appeared to have
2
a deep and abiding suspicion of the judiciary. It was not merely
that a traditionally conservative judiciary was looked upon warily
by a socialist government. Following the abortive coup d’etat of
January 1962, her first Government believed that at least two
Judges of the Supreme Court had actively participated in formulating a scheme for the transfer of power; hence the need for a new
law which would vest the Minister of Justice with the power to
nominate the Judges who would preside at the trial of the alleged
3
conspirators. Her second Government elected to office in 1970
Ibid., at 360.
See, for instance, the memorandum entitled “Independence of
the Judiciary or Supremacy of the Judiciary”, submitted to the
Constituent Assembly by the SLFP Lawyers’ Association, in which
it was argued that “the talk of the need for an independent judiciary which will guarantee that the Rule of Law will be observed and
the fundamental rights preserved is to ensure the setting up of a
fortress or bastion to make it easy for the anti-socialist elements to launch their counter-attack when the time is opportune”:
The Nation, 19 November 1970.
Criminal Law (Special Provisions) Act, No.l of 1962.
363
was conmitted to an extensive programne of social and economic reform, but feared that the Judges would use their powers to stultify
this programne. Pre-emptive action in the legislative sphere took
the form of a prohibition of the judicial review of legislation.^
In respect of executive action, particularly in regard to the acquisition of land for public purposes, the Government decided that the
power of Judges, by the issue of injunctions, to delay, if not to
prevent altogether, acquisitions determined by the Minister to be
necessary, should be curbed. The draft bill prepared by the Minister
of Justice for this purpose, however, went much further than this;
it also sought to replace the prerogative writs, including habeas
corpus, with orders of court. The Minister sent a copy of this
draft bill to the President of the Court of Appeal for his observations; the latter thought that the Minister was attempting to use
“nuclear weapons” in a situation which called only for the use of
“small arms”. The Judge had in mind an appropriate amendment to
the Land Acquisition Act which would be sufficient to prevent any
abuse of the courts’ injunction jurisdiction. The Cabinet, however,
3
endorsed the Minister’s draft with certain modifications. The
Interpretation (Amendment) Bill was passed unamended despite protests
from civic and public interest groups in the country. The bill was
attacked both in the legislature and outside principally as granting a licence to the executive to abuse its powers at will. None
expressed any apprehension of the impact which it was likely to have
on the procedures which the new Constitution contemplated for the
enforcement of the much-awaited fundamental rights.
1972 Constitution, s.48(2).
This was an unusual practice which Minister Felix Dias Bandaranaike initiated upon assuming office in January 1972. Copies of
bills prepared by him were sent to a number of judges and lawyers
for their observations. Those judges who responded were generally
careful to explain that their comments were expressed in a purely
private capacity and without prejudice to any views which they might
express in court after hearing arguments should their jurisdiction
be properly invoked in respect of such matters.
The proposal to replace the prerogative writs with orders of
court was not approved.
364
Act No.18 of 1972, which received the Governor-General’s
assent on 11 May 1972, added three new sections to the Interpretation Ordinance, No.21 of 1901. The new section 22 provided that:
Where there appears in any enactment, whether passed
or made before or after the commencement of this Ordinance, the expression ‘shall not be called in question in any court’, or any other expression of similar
import whether or not accompanied by the words ‘whether by way of writ or otherwise” in relation to any
order, decision, determination, direction or finding
which any person, authority or tribunal is empowered
to make or issue under such enactment, no court shall,
in any proceedings and upon any ground whatsoever,
have jurisdiction’ to pronounce upon the validity or
legality of such order, decision, determination, direction or finding, made or issued in the exercise or
the apparent exercise of the power conferred on such
person, authority or tribunal.
If, therefore, in addition to those instances where the legislature
had already used the expression “shall not be called in question in
any court” or words of similar import, the new National State Assembly were to exercise the power expressly conferred on it by section
121(3) of the Constitution to exclude the application of writs to
any executive act, the effect would be that the proposed new fundamental rights may not be invoked in respect of such act:
i. in any proceeding, i.e. whether by way of writ, declaratory
judgment, action for damages or injunction;
ii. upon any ground whatsoever, i.e. whether made allegedly in bad
faith, unreasonably, or upon irrelevant grounds, in breach of
the rules of natural justice, fraudulently, or in excess or in
-the absence of jurisdiction; and
iii. whether performed in the exercise or the appearent exercise of
power, i.e. regardless of whether the act had been performed
for the purpose intended by the legislature or not.
A proviso to section 22, however, sought to provide two exceptions to this sweeping exclusion of judicial supervision. Firstly,
section 22 would have no application to the Supreme Court in the
exercise of its power to issue mandates in the nature of writs of
1 2
habeas corpus. Both the National State Assembly and the executive
nevertheless retained the power to exclude the application of that
remedy, and it would only be in those situations where its application
1972 Constitution, s.121(3).
Gunasekera v. Ratnavale, supra, at 334.
365
was not so excluded that this proviso would keep it alive. Secondly,
the power of the Supreme Court to issue other writs would also be
preserved, even in the face of an exclusion clause, in respect of
the following matters:
a) where such order, etc., is ex facie not within the power conferred on the person, authority or tribunal making it;
b) where the person, authority or tribunal upon whom the power to
make or issue such order, etc., is conferred is bound to conform
to the rules of natural justice and the Supreme Court is satisfied that he has not done so; or
c) where the compliance with any mandatory provision of any law is
a condition precedent to the making or issuing of such order, etc.,
and the Supreme Court is satisfied that there has been no such
compliance.
An aggrieved person, therefore, had to satisfy the Court of
the existence of at least one of these conditions in order to maintain his application for a writ. In regard to requirement (c), he
had to satisfy the Court not only that there had been a failure to
comply with a provision of law, but also that such provision of law
was mandatory and not directory. The question whether a provision
of law is mandatory or directory is in itself not one capable of
easy resolution. As Sharvananda J observed recently:
When Parliament prescribes the manner or form in which
a duty is to be performed, or a power exercised, it
seldom lays down what will be the legal consequences of
failure to observe its prescriptions. The Courts must
therefore formulate their own criteria for determining
whether the procedural rules are to be regarded as
mandatory, in which case disobedience will render void
or voidable what has been done, or as directory, in
which case disobedience will be treated as an irregularity not affecting the validity of what has been done.
Judges have often stressed the impracticability of
specifying exact rules for the assignment of a procedural provision to the appropriate category. The whole
scope and purpose of the enactment must be considered,
and one must assess the importance of the provision
that has been disregarded and the relation of that
provision to the general object intended to be secured
by the Act.
But Judges sometimes disagree in regard to the application of the
rules which they themselves have formulated. For instance, in
regard to whether paragraph (b) of section 2(7) of the Heavy Oil
Nagalingam v. De Mel (1975) 78 NLR 231.
366
Motor Vehicles Taxation Ordinance which required the Minister to
lay before the House of Representatives within a specified period
any Order made by him under that subsection, was mandatory or directory, the Supreme Court expressed diametrically opposite views
within an year of each other. In Illeperuma Sons Ltd v. Government Agent, Galle,^ H.N.G.Fernando CJ held that the provision was
mandatory and must be complied with to give validity to the Taxation Order. But in the previous year, Alles J in Podi Appuhamy v.
2
Government Agent, Kegalle, was equally certain in his own mind
that a Taxation Order which had been laid before the House on a
date subsequent to the expiry of the specified period, was valid
and enforceable since section 2(7)(b) was not mandatory but merely
directory in nature.
In regard to requirement (b), the Court had to be satisfied
not only that there had been no conformity with the rules of natural justice, but that the authority concerned was under a duty to
conform to such rules. But “the rules of natural justice are not
rigid norms of unchanging content, and their ambit may vary accor3
ding to the context”. The need to observe them is not governed
by any general principle and their applicability depends on various
factors. “The nature of the power exercisable by the administrative
authority, the nature of the interest or rights interfered with or
affected, the intent of the legislature, the urgency of the situation, public policy and public interest are some of the factors
which have deprived this concept of uniformity of application and
content. The vacillating attitude of the courts and the varying
meaning given by the judges to the rules of natural justice have
contributed to uncertainty and unpredictability as to their appli4
cation”. In Linus Silva v. University Council of Vidyodaya University,^ the Supreme Court was of the view that when the University
Council sought to exercise its power to suspend or dismiss a teacher
on the grounds of incapacity or misconduct, it was “under a duty to
act judicially at the stage of ascertaining objectively the facts
as to incapacity or misconduct”, and accordingly to observe the
rules of natural justice. On appeal, the Privy Council disagreed:
(1968) 70 NLR 549. 2. (1967) 70 NLR 544.
De Smith, Judicial Review, op.cit., at p.163.
G.L.Peiris, Essays on Administrative Law (Colombo: Lake House
Investments Ltd, 1980), p.298. For a full discussion of the effect
of the Interpretation (Amendment) Act, see pp.271-310.
(1961) 64 NLR 104.
367
the University was not bound to act judicially and therefore was
not obliged to give the teacher an opportunity to be heard after
being made aware of the grounds upon which the termination of his
appointment was to be considered.
Requirement (a) was very limited in scope. An applicant for
a writ had to satisfy the Court that the act complained of was “ex
facie not within the power” conferred on the person who had performed that act. That is, an aggrieved person had to establish firstly,
that the act was in excess of the powers of the officer concerned,
and secondly, that such invalidity was apparent on the face of the
act. In other words, if the stamp of invalidity was not apparent
on the face of the order, such order could not be challenged. There—
fore, this paragraph of the proviso effectively excluded any challenge being made on the basis that an executive act had been performed by an officer in abuse of his powers. By 1972 it was well
established that abuse of powers formed part of the doctrine of
ultra vires. The principles governing the exercise of discretionary
power, as explained by De Smith, had generally been adopted and
applied by Courts in Ceylon:
In general, a discretion must be exercised only by the
authority to which it is committed. That authority must
genuinely address itself to the matter before it: it
must not act under the dictation of another body or disable itself from exercising a discretion in each individual case. In the purported exercise of its discretion
it must not do what it has been forbidden to do, nor
must it do what it has not been authorised to do. It
must act in good faith, must have regard to all relevant considerations and must not be swayed by irrelevant
considerations, must not seek to promote purposes alien
to the letter or to the spirit of the legislation that
gives it power to act, and must not act arbitrarily or
capriciously. Nor where a judgment must be made that
certain facts exist can a discretion be validly exercised on the basis of an erroneous assumption about
those facts.^
The effect of requirement (a) of the proviso was to withdraw from
the reach of judicial review the entire field of administrative
discretion, and to offer the executive immunity in respect of the
exercise, abuse or misuse of discretionary power.
(1964) 66 NLR 505.
De Smith, Judicial Review, op.cit., at p.285.
368
The new section 23 stated that:
Subject to the provisions of section 24, where a court
of original civil jurisdiction is empowered by any
enactment . . . to declare a right or status, such
enactment shall not be construed to empower such court
to entertain or enter decree or make any order in any
action for a declaration of a right or status upon any
ground whatsoever, arising out of or in respect of or
in derogation of any order, decision, determination,
direction or finding which any person, authority or
tribunal is empowered to make or issue under any written law:
Provided, however, that the provisions of this section
shall not be deemed to affect the power of such court
to make an order or decree relating to the payment of
damages.
This section removed the jurisdiction of the original courts to
grant a declaration against the executive in respect of the exercise or the intended exercise of statutory power. It kept alive
the action for damages; a remedy which could be invoked only after
an executive act had been performed, and which was capable of offering redress only in monetary terms. In the United Kingdom, Denning
LJ had only recently emphasized the relevance of the declaratory
judgment:
Just as the pick and shovel is no longer suitable for
the mining of coal, so also the procedure of mandamus
and certiorari and action on the case are not suitable
for the winning of freedom in the new age. They must
be replaced by new and up to date machinery, by declarations, injunctions and claims for negligence.1
The declaration was no less relevant in Sri Lanka. The employee
who is dismissed for resorting to strike action needed a declaration
that he was still in employment; not a few months wages as damages.
The citizen who was mistaken for an illegal imnigrant and ordered
to leave the country needed a declaration and an injunction; he
would not be around to make a claim for damages.
The new section 24 stated that:
(1) Nothing in any enactment . . . shall be construed
to confer on any court, in any action or other
civil proceedings, the power to grant an injunction or make an order for specific performance
against the Crown, a Minister, a Parliamentary
Secretary, the Judicial Service Commission, the
Public Service Commission, or any member or officer
of such Commission, in respect of any act done or
Sir Alfred Denning, Freedom under the Law (London: Stevens
Sc Sons Ltd, 1949), p.126.
369
intended or about to be done by any such person
or authority in the exercise of any power or
authority vested by law in any such person or
authority:
Provided, however, that the preceding provisions of this subsection shall not be deemed to
affect the power of such court to make, in lieu
thereof, an order declaratory of the rights of
parties.
(2) No court shall in any civil proceedings grant
any injunction or make an order against an
officer of the Crown if the granting of the
injunction or the making of the order would be
to give relief against the Crown which could
not have been obtained in proceedings against
the Crown.
This section was intended to bring to an end the proliferating applications for injunctions to restrain the Minister of Lands from
proceeding with proposed acquisitions. It did not have that desired
effect. On 3 September 1974, a bench of nine Judges of the Supreme
Court, by a majority of five to four, referred to the key words in
the limitation clause: Min the exercise of any power or authority”,
and held that for the preclusive clause to take effect, “the exercise of a power by the Minister must be real or genuine as opposed
to a purported exercise of power”.’*’ In a series of cases instituted
in original courts it had been alleged that acquisition orders had
been made by the Minister to victimise political opponents of the
Government. The Supreme Court upheld the injunctions issued in these
2
cases. The reaction of the Government was both predictable and
instantaneous. Within minutes of the delivery of the judgment, a
bill “to declare clearly and unequivocally the intention of the Legislature in enacting section 24” was submitted to the Constitutional
Court as being urgent in the national interest. It was approved by
that Court on the same day as being not inconsistent with the Constitution, and was tabled in the National State Assembly that afternoon and passed before the day was over. The new section 24
introduced by the Interpretation (Amendment) Law, No.29 of 1974,
declared, inter alia, that:
(1) Nothing in any enactment . . . shall be deemed to
confer upon any court jurisdiction to grant injunctions or to make orders for specific performance
This judgment is still unreported. Extracts from it were
published in Ceylon Daily News, 4 September 1974.
For a discussion of this judgment, see L.J.M.Cooray, “The
Twilight of Judicial Control of Executive Action in Sri Lanka”,
(1976) 18 Mal.L.R. 230.
370
against the State, a Minister or a Deputy
Minister, upon any ground whatsoever.
(2) No court shall upon any ground whatsoever
grant any injunction or make any order
against a state officer if the effect of
the granting of such injunction or the making of such order would be, whether directly
or indirectly, to restrain the State, a
Minister or a Deputy Minister from proceeding with, or to compel the performance by
the State, a Minister or a Deputy Minister
of,any matter or thing.
This language was explicit enough to withdraw yet another remedy,
not merely in respect of land acquisition orders, but over the whole
range of executive action, whether such action be taken for the purpose authorised by law or mala fide. The new section also contained
the following subsection:
(5) The preceding provisions of this section
shall not be deemed to affect the power of
any court to make an order declaratory of
the rights of parties.
This subsection was in conflict with the previously enacted section
23 referred to above. But since the new section 24 was to have
effect “notwithstanding . . . any other provisions of this Ordinance”,
it probably meant that the declaratory judgment was restored even in
respect of the exercise of statutory power. Assuming that such was
the intention of this hastily conceived legislation, it does not
appear to have caught the eye of any aggrieved person.
Laws Enacted by the National State Assembly
The largest number of exclusion clauses enacted in any single
period of Sri Lanka’s legislative history was sandwiched into the
six and a quarter years during which the 1972 Constitution operated.
2
Although expressions such as “shall be final”, and “final and con3
elusive”, were occasionally used, the emphasis was clearly on the
This section also provided that any injunction which had
already been granted by any court, “which injunction such court
would not have had the jurisdiction to grant if this section had
then been in operation”, shall for all purposes be deemed to have
been and to be null and void and of no force or effect in law: s.24(3).
Janawasa Law, No.25 of 1976, s.57.
University of Ceylon Act, No.l of 1972, s.40; Rent Act,
No.7 of 1972, s.40; Co-operative Societies Law, No.5 of 1972, s.36;
National Archives Law, No.48 of 1973, s.14; Shop and Office Employees (Regulation of Employment and Remuneration) (Amendment) Law,
No.7 of 1975, s.2; Janawasa Law, supra, s. 10.
371
more explicitly worded exclusion clause. There was a lack of
uniformity in the phraseology used, but no doubt at all as to its
intention:
TABLE 25
EXCLUSION CLAUSES USED BY THE
NATIONAL STATE ASSEMBLY
1972-1978
Clause
No court shall entertain
any such application
Shall not be questioned in
any court or tribunal
Shall not be called in
question in any court of
law, whether by way of
writ, mandate or otherwise
Shall be final and shall
not be called in question
in any court
Final and conclusive and
shall not be called in
question in any court
Statute
State Mortgage and Investment Bank
Law, No.13 of 1975, s.50.
Common Amenities Board Law, No. 10
of 1973, s.4.
Requisitioning and Acquisitioning
of Lorries Law, No.45 of 1973,s.2.
Resumption of State Land (Anuradhapura Preservation Board) Law,
No.3 of 1975, s.3.
^University of Ceylon Act, No.l of
1972, s.73.
Proscribing of Liberation Tigers
of Tamil Eelam and Other Similar
Organisations Law, No.16 of 1978,
s.13.
Payment of Gratuities and Other
Monetary Benefits to Indian Repatriates (Special Provisions)
Law, No.34 of 1978, s.7.
Agricultural Productivity Law,
No.2 of 1972, s.35.
Co-operative Societies Law, No.5 of
1972, s.58.
National Water Supply and Drainage
Board Law, No.2 of 1974, s.20.
Tea Control (Amendment) Law, No.39
of 1974, s.HE.
Sri Lanka Tea Board Law, No. 14 of
1975, s.19.
Ceiling on Housing Property Law,
No.l of 1973, s.39.
^University of Ceylon Act, No.l of
1972, s.65.
Agricultural Insurance Law, No.27
of 1973, s.15.
Requisitioning and Acquis itioning of
Lorries Law, No.45 of 1973, s.11.
372
Final and conclusive and
shall not be called in
question in any court,
whether by way of writ
or otherwise
Shall be final and conclusive for all purposes
whatsoever and shall not
be called in question in
any court or tribunal,
whether by way of appeal
or writ, or in any other
manner whatsoever
Shall be final and conclusive and shall not be
called in question in any
court or tribunal, whether
by way of action, application in revision, appeal,
writ or otherwise
National Water Supply and Drainage
Board Law, No.2 of 1974, ss.65,
86, 87.
Local Government Service Law,
No.16 of 1974, s.4.
Companies (Special Provisions) Law,
No.19 of 1974, ss.3,4,6.
Silkworm Seed Law, No.36 of 1974,
s.10.
Licensing of Clubs Law, No. 17 of
1975, s.13.
Land Betterment Charges Law, No.28
of 1976, s.10.
Health Services (Amendment) Law,
No.3 of 1977, s.2.
Extradition Law, No.8 of 1977,
ss.2,3.
Local Authorities (Special Provisions) Law, No.24 of 1977, s.32.
Co-operative Societies (Special
Provisions) Law, No.12 of 1978,
s.2.
Local Authority Quarters (Recovery
of Possession) Law, No.42 of
1978, s.4.
Land Reform Law, No.l of 1972,
ss.13,14, 24,38.
Agricultural Productivity Law,
No.2 of 1972, s.19.
Mines and Minerals Law, No.4 of
1973, s.7.
Termination of Employment of Workmen (Special Provisions) Law,
No.4 of 1976, s.2.
Special Presidential Commissions
of Inquiry Law, No.7 of 1978,
s.2,9.
^Licensing of Shipping Agents Act,
No.10 of 1972, s.6.
^Criminal Justice Commissions Act,
No.14 of 1972, ss.2,25.
Criminal Justice Commission (Amendment) Law, No.10 of 1972, s.5.
Associated Newspapers of Ceylon Ltd
(Special Provisions) Law, No.28
28 of 1973, ss.3,5,10,13.

Enacted shortly before the National State Assembly was constituted.
373
Thirty-two statutes contained exclusion clauses protecting
from judicial review a wide variety of executive acts, including:
i. requisitioning of movable property;
ii. vesting of land;
iii. detention of persons;
iv. dispossession orders in respect of imnovable property;
v. restrictive or prohibitory orders in respect of trades or
businesses;
vi. rejection of indemnity claims made by insured persons;
vii. award of compensation;
viii. determination of rates and charges;
ix. removal of members of statutory boards;
x. refusal, cancellation and suspension of licences;
xi. refusal to register societies;
xii. refusal to recognise political parties;
xiii. dissolution of co-operative societies;
xiv. quit notices in respect of residential premises;
xv. invalidation of the alienation of agricultural land;
xvi. reports, findings, orders, determinations, rulings and recommendations of commissions of inquiry.
Administration of Justice Law, No.44 of 1973.
This law, inter alia, abolished non-sumnary proceedings.
Consequently, it made radical changes in the field of criminal procdure. In one such change, section 31 of the Courts Ordinance, which
for nearly a century contained “an important principle safeguarding
the liberty of the subject who has a right to be brought to trial
with reasonable despatch”,’*’ was repealed. In fact, the question
whether or not bail ought to be granted to a person accused of a
serious offence was withdrawn altogether from the trial court, and
left in the discretion of the Director of Public Prosecutions, a
public officer who functioned in the Ministry of Justice. The
remedy of bail was further restricted by two other statutes. The
Criminal Procedure (Special Provisions) Law, No. 15 of 1978, and the
Proscribing of Liberation Tigers of Tamil Eelam and Other Similar
Organisations Law, No. 16 of 1978, required any person “who is produced on arrest on an allegation that he has committed or has been
concerned in committing or is suspected to have conmitted or to have
been so concerned in committing” a scheduled offence, to be kept on

Supra, p.354.
S.103(4).
374
remand until the conclusion of his trial and, in the event of his
being eventually tried and convicted, until the determination of
his appeal.
An Assessment
In April 1969, Mrs.Mallika Ratwatte, the SLFP Member of
Parliament for Balangoda, applied to the Supreme Court for an injunction to restrain the UNP Minister of Lands from proceeding to
acquire certain lands belonging to her family. Her husband, who
had been the Member of Parliament before her, was the yc^iger brother
of Mrs. Bandar ana ike, then Leader of the Opposition. Both at the
election at which she was elected and at the election at which her
husband was returned, the opposing candidate was one Aboosally, who
now held the office of Chairman of the Urban Council of Balangoda.
According to Mrs.Ratwatte, Aboosally had informed her that instead
of widening the existing main road which passed through the bazaar
in Balangoda, an old circuitous road, which had hitherto been hardly
used by motorists, would be widened by 34 feet. The main road which
was at most places about 40 feet wide was at the centre of the bazaar only about 20 feet wide and the land and buildings adjacent to
that spot were owned and occupied by Aboosally and several of his
relatives. The land and premises on either side of the old circuitous road belonged to Mrs.Ratwatte’s family. When the Permanent
Secretary inspected the old circuitous road, Mrs.Ratwatte’s husband
had appealed to him not to pursue the proposed road-widening project
as it was nothing but an attempt to take political revenge. According to Mrs.Ratwatte, the Permanent Secretary rejected this appeal,
apparently for the reason that it did not lie in the mouth of the
Ratwattes to raise such an objection because the previous Government
of Mrs.Bandaranaike had arbitrarily acquired lands, including a land
belonging to a relative of his, upon false pretexts. Mrs.Ratwatte
also alleged that Aboosally, who was present at the inspection,
stated that the previous Government had acquired a land belonging
to him about ten years previously, allegedly for a housing scheme,
but had failed to pay him compensation. The Supreme Court issued
an injunction as prayed for. Samarawickrema J observed that:
It is remarkable how often over the years it has turned
out by some extraordinary coincidence that the public
interest appeared to require the acquisition of lands
belonging to persons politically opposed to the party
375
in power at the time. It is, therefore, necessary
that Courts, while discouraging frivolous and groundless objections to acquisitions, should be vigilant, if it is open to them to do so, to scrutinise
acquisition proceedings where it is alleged that ^
they are done mala fide and from an ulterior motive.
Had these events taken place three years later, Mrs.Ratwatte
would probably have been entitled to argue that, due to her political views, she was being denied the equal protection of the law,
guaranteed to all citizens by section 18(1) (a) of the Constitution.
But to whom, and how, could she have taken her grievance ? The
Courts were prohibited from granting injunctions against Ministers.
An action to obtain an order declaratory of Mrs.Ratwatte’s rights
would not have stopped either the acquisition proceedings or the
construction of the proposed new roadway, and would have brought
her neither relief nor redress. Mandamus was not available by way
of a prohibitory injunction. Certiorari to quash the proceedings
already taken, or Prohibition to prevent the Minister from making
further orders necessary to complete the acquisition could have been
invoked only if the Minister was under a duty to act judicially in
exercising his powers under the Land Acquisition Act. But even
assuming that such a duty existed, the Minister’s opinion that a
particular land was required for a public purpose was “conclusive”
for all purposes and could not be questioned in a court of law,
unless it was possible to bring it within one of the grounds referred
to in the proviso to section 22 of the Interpretation Ordinance.
Mrs.Ratwatte’s complaint was not that the Minister had failed to
comply with the provisions of the statute, but that he was exercising his powers for an ulterior purpose; in other words, that the
Minister was acting mala fide. But the Minister’s mala fide, if
any, was not apparent on the face of his orders, and the proviso to
section 22 was, therefore, of no avail. Therefore, Mrs.Ratwatte
would have had no remedy.
It does^appear to be necessary to examine other hypothetical
situations. The most eloquent testimony to the ineffectiveness of
the traditional remedies for the enforcement of the fundamental
rights protected and guaranteed by the 1972 Constitution must surely
be the fact that no record exists of any of these remedies ever
having been invoked for that purpose.
(1969) 72 NLR 60, at 63.
The Special Remedy
Article 17 of the 1978 Constitution states that:
Every person shall be entitled to apply to the
Supreme Court, as provided by Article 126, in
respect of the infringement or inminent infringement, by executive or administrative action,
of a fundamental right to which such person is
entitled under the provisions of this Chapter.
Article 126 is to the following effect:
(1) The Supreme Court shall have sole and exclusive
jurisdiction to hear and determine any question
relating to the infringement or imminent infringement by executive or administrative action of
any fundamental right or language right declared
and recognised by Chapter III or Chapter IV.
(2) Where any person alleges that any such fundamental right or language right relating to such
person has been infringed or is about to be infringed by executive or administrative action,
he may himself or by an attorney-at-law on his
behalf, within one month thereof, in accordance with such rules of court as may be in force,
apply to the Supreme Court by way of petition in
writing addressed to such Court praying for relief
and redress in respect of such infringement.
Such application may be proceeded with only with
leave to proceed first had and obtained from the
Supreme Court, which leave may be granted or
refused, as the case may be, by not less than
two Judges.
(3) Where in the course of hearing in the Court of
Appeal into an application for orders in the
nature of a writ of habeas corpus, certiorari,
prohibition, procedendo, mandamus or quo warranto, it appears to such Court that there is
prima facie evidence of an infringement or imminent infringement of the provisions of Chapter
III or Chapter IV by a party to such application,
such Court shall forthwith refer such matter for
determination by the Supreme Court.
(4) The Supreme Court shall have power to grant such
relief or make such directions as it may deem
just and equitable in the circumstances in respect of any petition or reference referred to in
paragraphs (2) and (3) of this Article or refer
the matter back to the Court of Appeal if in its
opinion there is no infringement of a fundamental
right or language right.
(5) The Supreme Court shall hear and finally dispose
of any petition or reference under this Article
within two months of the filing of such petition
or the making of such reference.
377
A special remedy has, therefore, been created for the enforcement
of the fundamental rights declared and recognised in Chapter III of
the Constitution. Since the Supreme Court has “sole and exclusive
jurisdiction” in respect of such matters, it would appear that the
question of the infringement of a fundamental right may not now be
raised by way of any of the traditional remedies discussed earlier
in this chapter and which could now be invoked only in one or other
of the subordinate courts.
The Nature and Scope of the Special Remedy
The power of the Supreme Court to “grant such relief or make
such directions as it may deem just and equitable” is no less extensive than that enjoyed by the superior courts of other Commonwealth
countries vested with jurisdiction to enforce fundamental rights.
Indeed, the power thus conferred is as extensive a power as a constitution could possibly have conferred on a court. It has so far been
understood by those called upon to exercise it as including the power
to restrain, to quash, and to direct the performance of executive
1 2
action; to order the payment of compensation; and to require the
3
institution of disciplinary proceedings against an errant officer.
This special remedy is available notwithstanding any limitations contained in existing law on the judicial review of executive
action. It is significant that while Article 16 of the Constitution
subjects the exercise and operation of the fundamental rights declared in Articles 10 to 15 to “all existing written law and unwritten
law”, which continues to be “valid and operative notwithstanding any
inconsistency with the preceding provisions of this Chapter”, this
remedy is provided by the immediately succeeding Article 17. The
right to;a remedy conferred by Article 17 is, therefore, not subject
to existing law. One such existing law, which is now superseded by
/(,
this Article, is section 22 of the Interpretation Ordinance.
In terms of Article 168(1), “existing law” is mutatis mutandis
and except as otherwise expressly provided in the Constitution,
continued in force. Therefore, the question arises whether section
22 of the Interpretation Ordinance can co-exist with Article 17.
Such co-existence will be possible only if the constitutional prov1. Perera v. University Grants Commission, S.C.M. of 4 August
1980.
Velmurugu v. Attorney-General, S.C.M. of 9 November 1981,
per dissenting opinion of Sharvananda J.
Ibid. 4. Supra, p.364.
378
ision is not in conflict with existing law. Section 22 states
that when a law contains the expression “shall not be called in
question in any court” in relation to any executive act which any
person is empowered to perform under such law: (a) no court shall,
(b) in any proceedings, (c) upon any ground whatsoever, (d) in
respect of that act, whether made in the exercise or the apparent
exercise of power, (e) have jurisdiction to pronounce upon its
validity or legality. Article 17, read with Article 126, states
that: (a) the Supreme Court, (b) in proceedings under Article 126,
(c) on the ground that a fundamental right has been or is about to
be infringed, (d) by executive or administrative action, (e) have
sole and exclusive jurisdiction to grant such relief or make such
directions as it may deem just and equitable. It appears, therefore,
that in every respect Article 17 is in conflict with section 22.
Article 17 contains a special remedy; it is “otherwise expressly
provided” in the Constitution, in the face of which section 22 does
not continue in force, in respect of the matters referred to in that
Article. So it must be with all exclusion clauses too, contained
in existing law, since Article 17 expressly provides that executive
and administrative action may be questioned in a particular court,
on a particular ground, in a particular manner.
The remedy thus provided is not in any way limited in its
scope by the constraints of existing law. It is also non-derogable.
However, that is not to say that the special remedy is an absolute
one. Inherent in the constitutional provisions which have created
it are the following clearly expressed limitations.
The remedy may be invoked only by an aggrieved person.
An aggrieved person is one in relation to whom a fundamental
right has been, or is about to be, infringed. He may invoke the
remedy himself or by an attomey-at-law on his behalf; such attorney-at-law would require to be authorised by proxy to act. In many
Commonwealth jurisdictions, there is provision for a remedy such
as this to be invoked in the case of a detained person by any other
person.’*’ This is a very necessary provision, particularly if the
detained person is being held incommunicado. In Sri Lanka, therefore, if a person is held in custody for one month and denied access
Supra, p.131.
379
to any visitors during that period, this special remedy will not be
available to him.
The requirement of an infringement or imminent infringement
of a fundamental right also raises the question of locus standii.
The Court may be satisfied that an executive or administrative act
is in conflict with a fundamental right, but unless the petitioner
is able to satisfy the Court that such right has been infringed in
relation to him, the Court would refrain from making any directions
in respect of such act. For example, in Palihawadana v. AttorneyGeneral,^ it was alleged that the Government’s scheme for the placement of the unemployed in the State and public sector institutions,
popularly known as the Job Bank Scheme, violated the equality postulated by Article 12, in that the petitioner had been excluded from
access to State employment by the refusal of his Member of Parliament to give him a Job Bank application form. It was his submission that he had been discriminated against for the reason that he
belonged to a political party opposed to that to which the Member
of Parliament belonged. The Job Bank Scheme envisaged the nomination of one thousand unemployed persons by each Member of Parliament from his electorate. The criteria for nomination was that each
person so nominated was between the ages of 18 and 40 years; was
resident in the electorate; was unemployed; and in his family there
was no income-earner or the income was so low that it was inadequate
to sustain him and the other members. The Cabinet had decided that
all non-staff grade vacancies in the ministries, government departments, corporations, statutory boards and local government institutions should be filled only through the Job Bank. As the Supreme
Court noted:
Unless one applies in the employment-registration
form issued to the MP, one has no chance of being
considered for employment in government institutions. The MP thus stands at the gateway, and unless
he opens the gate, one is completely shut out from
the prospect of government employment. The MP’s
discretion in the selection of potential employees
is absolute.^
But the class of persons who satisfied the aforesaid criteria far
exceeded in number the one thousand who were required to be nominated,
S.C.M. of 27 April 1979.
Ibid.
380
and the scheme did not lay down any guidelines for selection, but
left it to the Member’s uncontrolled and arbitrary discretion to
make the selection of the thousand. Accordingly, in the view of
the Supreme Court, discrimination was inherent in that part of the
scheme which conferred power on the Member of Parliament to select
one thousand persons who should be issued Job Bank forms:
Vesting of such naked and arbitrary power in an MP,
the exercise of which will deprive large numbers of
citizens of their opportunity to enter State Service militates against the concept of equality. The
Scheme lays down no rules by which its impartial
execution is assured, or partiality or bias prevented.
The excluded persons may legitimately attribute the
non-issue of the application forms to them by the MP
to improper influences and motives such as favouritism, partisanship, animosity or bias which are easy
of concealment and difficult to be detected and exposed.-*-
In fact, the Supreme Court found that the Member of Parliament concerned had even selected persons from families owning substantial
properties and in receipt of incomes and pensions. In regard to
the petitioner, it appeared that the Member had not addressed his
mind to the question of his eligibility; he had exhausted the application forms by the time the petitioner requested one for himself.
In the course of the proceedings, however, Counsel for the State
tendered an affidavit according to which the petitioner was a member of a family which owned both house property and agricultural
land. Although the State had not originally pleaded a lack of locus
standi, it now argued that the petitioner did not satisfy the eligibility criteria stipulated in the Job Bank Scheme and was therefore
not entitled to maintain the application before Court. One of the
Judges saw “no significant difference” between the position of the
petitioner’s family and the position of most of the families from
which persons had been nominated to the Job Bank. Nevertheless,
the Supreme court held that since the petitioner “can, in no objective view, claim to come in the class of persons who satisfy the
eligibility criteria, whatever the MP’s bias against him be”, he
had no locus standi and the application must be dismissed.
Ibid.
381
The remedy must be invoked within one month of the executive or
administrative action complained of.
A thirty-day time limit for the invocation of a remedy presupposes not only the existence of a vigilant community conscious
of its rights, but also easy access to professional expertise.
Neither of these factors can be said to generally characterise
contemporary Sri Lanka, and for that reason, a more realistic period of six months would have been preferable. On the other hand,
the prompt assertion of individual rights may serve not only to
provide early relief to an aggrieved person, but also to alert the
executive to the probable consequences of a continuing course of
action. Be that as it may, this requirement does operate to limit
the applicability of the remedy. During the period under review,
25 per cent of the applications which were argued were rejected on
the ground that they were out of time.^
The remedy is available only in respect of executive or administrative action.
Article 4(d) requires “all the organs of government” to respect, secure and advance the fundamental rights declared and recognised by the Constitution. But any infringement of the rights by
legislative or judicial action may not be the subject of a complaint
to Court under Article 126. In fact, Article 80(3) quite explicitly
declares that no court or tribunal shall inquire into, pronounce
upon or in any manner call in question the validity of an Act of
Parliament on any ground whatsoever. The protection which Article
80(3) provides is not confined to the statute simpliciter; it also
extends to an executive or administrative act which derives its
authority from such statute. For instance, if a public officer,
exercising an unfettered discretion vested in him by law, orders
the closure of a printing press without adducing any reasons therefor,
the Court is precluded from inquiring into the validity of his action
by reference to any of the fundamental rights which may appear
thereby to have been infringed. So it is with judicial acts. A
person who believes that he has been discriminated against in the
matter of a bail application or in the imposition of sentence, does
not have the benefit of this special remedy.
Infra, p.389.
A resolution of Parliament imposing civic disability on a
person is also given the same effect by Article 81(3).
382
The scope of governmental activity has expanded considerably
during the past few decades. Apart from maintaining law and order
and administering justice, the government is also directly involved
in the provision of community services. For instance, it provides
a transport service throughout the island through the Railways Department. It helps in the distribution of certain agricultural products through the Marketing Department. For reasons of political
and economic expediency, including that of better management, the
government may sometimes decide that a particular service should
be provided not by a government department but through some other
agency such as a public corporation. The State Industrial Corporations Act, No.49 of 1957, enables the establishment of corporations
with capital provided by the government for setting up and carrying
on industrial undertakings on a commercial footing. In terms of
that Act, as well as under special statutes, several corporate
bodies have been created for the performance of a multitude of
functions. These include the Ceylon Transport Board, the Ceylon
Petroleum Corporation, the Insurance Corporation, the State Trading
Corporation, the Ceylon Shipping Corporation, the Milk Board, the
Paddy Marketing Board and the Co-operative Wholesale Establishment.
The directors and chief executives of these bodies are usually appointed by the Minister; the latter also has the power to give general or special directions on matters of policy. The question will,
therefore, arise whether the acts of such corporate bodies constitute
“executive or administrative action”.
In Dahanayake v. De Silva,^ which was an election petition,
Samarakone CJ examined the question whether the Ceylon Petroleum
Corporation established by Act No.28 of 1961, and with which the
respondent was alleged to have held a contract, was an agent of the
State:
It is a legal hybrid bred by the Government to enable
it to engage in a commercial business – tailor made
to suit its style of business. It is a government creation clothed with juristic personality so as to give
it an aura of independence but in reality it is just a
business house doing only the State’s business for and
on behalf of the State. Such a legal entity carrying
on monopolistic commercial transactions for the State
must necessarily be the agent of the State.
[1978/79] 1 SIR 41.
383
He was probably influenced by the fact that:
The Minister has the power to fix prices at which
petroleum products shall be sold and also prescribe
other conditions of sale. In short, the Corporation
does not act like other corporations who engage in
business. Its business is merely, if not wholly,
controlled by the Minister and therefore the State.
It does not have tie independence in matters of
business which is enjoyed by theBCompanies formed
under the Companies Ordinance. It is a well known
fact that this is a monopoly business acquired by
the State which is also compelled to subsidise
some part of its business for the welfare of the
comnunity.
These observations of the Chief Justice do not necessarily apply to
every state corporation. Where ministerial control is less apparent
and managerial independence more conspicuous, a Court may well hold
that the actions of that corporate body do not attract the provisions
2
of Article 126. In Perera v. University Grants Commission, the
Supreme Court thought that “it is idle to contend that the respondent is not an organ or delegate of the government and that its action
in the matter of admission of students to the universities under it
does not have the character of executive or administrative action”.
That was the first occasion on which this question was raised in
relation to an alleged infringement of a fundamental right, but it
is not likely to be the last.
The requirement of an “administrative practice”.
A fourth limitation has been sought to be placed on this remedy
by the Supreme Court by requiring, in respect of certain allegations
of torture, evidence of an administrative practice. In Thadchana3
moorthi v. Attorney-General, the petitioner complained of police
brutality following his arrest on charges of robbery and murder.
The Court rejected the application on the ground that the material
placed before it “is neither clear nor cogent and falls far short
of even the minimum proof necessary for that purpose”. Having done
so, Wanasundera J proceeded to examine whether when an allegation of
torture was made against a law enforcement officer, since such
conduct was both unlawful and ultra vires the powers of such officer,
it would be necessary for the petitioner to prove the existence of
“an administrative practice” before he could obtain relief or
redress against the State. Citing the jurisprudence of Strasbourg
Ibid.
S.C.M. of 4 August 1980.
S.C.M. of 14 August 1980.
384
that an administrative practice could be established by the presence
of two elements, namely, repetition of acts and official tolerance,
he expressed the view that “those principles, with suitable modifications, can profitably be adopted by us in the exercise of our
powers under Article 126″, since he saw “more than a superficial
similarity” between Sri Lanka’s Supreme Court and the European Court
of Human Rights. In that case, he found that an on-going police
inquiry into the complaint of the petitioner and the provisions of
the Penal Code, Criminal Procedure Code and the Police Ordinance
which prohibited and outlawed violence and unlawful practices by
the law enforcement authorities, negatived the existence of an administrative practice of torture or ill-treatment.
In Velmurugu v. Attorney-General the petitioner alleged that
he had been subjected to acts of torture, cruelty and degrading
treatment by army personnel to whom he had been handed over by a
senior police officer who had said: “Take him and do as you like”.
A majority of a five-Judge bench held that this allegation had not
been proved to their satisfaction.” Wanasundera J, who was one of
the majority, proceeded to explain in greater detail the relevance
of “an administrative practice” to Article 126. In his view, that
Article had drawn a distinction between high state officers and
subordinate personnel. The former constituted the executive, while
the latter acted for and on behalf of the State:
The State should be held strictly liable for any acts
of its high state officials . . . The liability in
respect of subordinate officers should apply to all
acts done under colour of office, i.e. within the
scope of their authority, express or implied, and
should also extend to such other acts that may be ultra
vires and even in disregard of a prohibition or special
directions provided that they are done in the furtherance or supposed furtherance of their authority or
done at least with the intention of benefiting the
State.
In the instant case, Wanasundera J was of the view that:
All in all the acts complained of, if they had taken
place as alleged, seem to be in the nature of individual and personal acts due to some aberration or idiosyncracy. They are also suggestive of the venting of
some grievance of a personal and private nature or in
consequence of some strong passion, prejudice or malice.
S.C.M. of 9 November 1981.
385
He considered it relevant that the instruction to, and the responsibility of, the army to whom the petitioner had been temporarily
handed over, was only to transport him, and that in the absence of
the declaration of a state of public emergency, the army personnel
had no more powers over the petitioner than any civilian. Accordingly, he explained that the application of the concept of “administrative practice” could help to extend State liability to cases
such as this if it can be shown that “the occurence of the acts
complained of can be attributed to the existence of a general situation created or brought about by the negligence and indifference
of those in authority”. Of course, he was quite satisfied that in
that case, no such situation existed:
The alleged acts have not been authorised, encouraged
or countenanced or performed for the benefit of the
State. The material before us shows that they would
also not have been tolerated by the authorities.
Wanasundera J’s attempts to draw a distinction between the
acts of “high state officers” and “subordinate personnel”, and a
further classification of the acts of the latter category, does
not appear to be warranted by the provisions of Article 126. Where
an allegation of torture is made against a law enforcement officer,
the question must surely be whether that act had been committed in
the exercise of the coercive power vested by the State in that
officer. The motive for his act should be irrelevant. Does it
matter whether it was for the purpose of extracting vital information or for the purpose of satisfying a very personal desire ? If
the officer had utilised the authority with which he was clothed in
order to place himself in a position to comnit that act, the State,
which provided him with that authority, must accept liability. In
his dissenting opinion in Velmurugu, Sharvananda J expressed similar
sentiments, but then went on to say:
This sweep of State action, however, will not cover
acts of officers in the ambit of their personal pursuits, such as rape by a police officer of a woman
in custody; such act has no relation to the exercise
of the State power vested in him. The officer had
taken advantage of the occasion, but not his office,
for the satisfaction of a personal vagary.
If a person, who happens to be a police officer, commits rape in
some private place, it would not have been the fact of his public
office that facilitated the commission of that act. But if a police
386
officer rapes a woman who is held in custody within the confines of
a police station, he would surely have taken advantage, not only of
the occasion, but also of his office. The potential victim has not
the same freedom to resist and rush out screaming for help when she
is held in a police cell that she would have if the officer in
mufti had intruded into the privacy of her living room. It is submitted, therefore, that the unwarranted introduction of the concept
of “an administrative practice” has further limited the scope of
the remedy provided by Article 126.
In this connection, it is perhaps relevant to note that Wanasundera J appears to have misunderstood, perhaps due to the nonavailability of the relevant reports, the context in which the Strasbourg institutions formulated and applied the concept of “an administrative practice”. It was not intended to limit the scope or the
applicability of the Article which prohibited torture. It was
intended for an altogether different purpose. ECHR, Article 26,
requires an applicant to exhaust the domestic remedies available to
him under national law before proceeding to the European Comnission.
But where an applicant raises the issue of an administrative practice of non-observance of certain Convention provisions, the Commission has agreed not to insist on strict compliance with Article 26
on the basis that in such circumstances, the domestic remedies are
likely to be side-stepped or rendered inadequate by the difficulty
of securing probative evidence and administrative inquiries would
either not be instituted, or, if they were, would be likely to be
half-hearted and incomplete.^
Exclusion of the Special Remedy
No proceedings under Article 126 may be instituted in respect
of anything done or omitted to be done by the President in his off2
icial capacity. This inmunity, however, does not extend to the
exercise by the President of any power pertaining to any subject or
function of government which he has retained in his charge without
3
assigning to a Minister; in other words, to any act in his capacity
of a Minister of the Government.
Denmark, Norway, Sweden and Netherlands v.’ Greece (3321-23/67
and 3344/67), YB 12, 502 et seq; Ireland v. United Kingdom (5310/71)
YB 15, 76, at 242; Donnelly v. United Kingdom (5577-83/72), CD 43,
122, at 147.
Art.35(1). 2. Art.35(3).
387
The provision of a special remedy in the Constitution for
examining the validity of executive and administrative action has
not deterred Parliament from seeking, on occasion, to exclude the
application of that remedy. Several subsequent statutes contain
the familiar phraseology which was very effectively resorted to
under the 1972 Constitution to oust the jurisdiction of courts.
The injunction of Parliament that a particular executive act “shall
not be called in question in any court” means that the validity of
such act may not be examined by the Supreme Court even in the exercise of its Article 126 jurisdiction.’‘ Executive acts thus protected include: i. a detention or restriction of movement order made by a Minister;^ ii. a vesting order made by the Minister in respect of agricul3 tural or estate land; iii. the decision of an official whether or not a tenant cultivator has been evicted contrary to law; iv. the decision of the Monetary Board refusing to register a finance company;*
v. the decision of the Minister on appeal against the suspension
or cancellation of a licence;^
vi. the confirmation by the Minister of a disciplinary order
made by a local authority;^
vii. the refusal of the Ombudsman to investigate a complaint made
to him;**
viii. the determination of the Commissioner of Elections as to which
one of rival sections of a recognised political party is that
party.9
This is made clear by two other statutory provisions. S.6 of
the Urban Development Projects (Special Provisions) Act, No.2 of 1979,
states that an exclusion clause contained therein shall not affect
the powers of the Supreme Court under Art. 126. S. 10 of the Parliamentary Commissioner for Administration Act, No. 17 of 1981, states
that the Ombudsman may investigate any matter notwithstanding the
presence of any exclusion clause.
Prevention of Terrorism (Temporary Provisions) Act, No.48
of 1979, ss.10,11(5).
Land Grants (Special Provisions) Act, No.43 of 1979, s.2(3).
Agrarian Services Act, No.58 of 1979, s.5(6).
Control of Finance Companies Act, No.27 of 1979, ss.5,9,16.
Licensing of Produce Brokers Act, No.9 of 1979, s.5(6).
Local Authorities (Special Provisions) Act,No.3 of 1979,ss.3,4.
Parliamentary Conmissioner for Administration Act, supra,s. 14.
Presidential Elections Act, No.15 of 1981, s.10; Parliamentary Elections Act, No.l of 1981, s.13.
388
Application of the Special Remedy
Between the coimencement of the Constitution in September
1978 and the end of December 1981, thirteen applications under
Article 126 had been determined by the Supreme Court. Of these,
in only one did the Court hold that the petitioner was entitled
to relief or redress, namely, Perera v. University Grants Commission.^ The State agency concerned was a statutory body and the
impugned decision related to the selection of students for admission to the universities. The petitioner was a prospective
medical student from Colombo, the daughter of a medical practitioner.
The minimum requirement for university admission in 1980 was
that a candidate should have, on one and the same occasion, at the
GCE (Advanced Level) Examination, passed in at least three approved
subjects and obtained a mark of not less than 25 per cent in the
fourth approved subject, and should also have obtained an aggregate
of not less than 160 marks for the four subjects. Two Advanced
Level examinations had been held in 1979: in April, 18,753 students
had sat offering subjects in the Bio-Science group, of whom 4863
attained the minimum standard for university admission; in August,
12,857 sat, of whom 1887 reached the required standard. The universities had only 995 places in the Bio-Science group of courses
(of which 400 were set apart for medicine) but 6750 had attained the
minimum standard. The University Grants Comnission decided that
admission should be in the ratio of the number of students who
attained the minimum requirement in each examination. This meant,
in respect of medicine, 7.2:2.5 or 288:112. Of this number, 55 per
cent of the places were reserved for admission on a district basis
and 15 per cent for the “educationally under-privileged areas”.
The Supreme Court very properly held that this formula violated
Article 12 of the Constitution. All those who qualified for admission at each examination had been integrated into one class of qualified candidates. Once the qualified candidates were absorbed into
one class, they could not, by reference to their original source,
S.C.M. of 4 August 1980.
389
be discriminated:
Allocation of places in the Universities on the basis
of the ratio . . . will result in candidates of an
inferior calibre from the April batch being selected,
while candidates of a superior calibre from the August batch not being selected.
Accordingly, the Supreme Court directed the University Grants Commission to make the selection of candidates on the basis of the highest aggregate of marks in an integrated or consolidated list of
successful candidates. In so doing, the Court rejected an objection
raised in limine that the Commission was not a body exercising executive or administrative action. It pointed out that education was
one of the most important functions of the State:
In these days, it is doubtful that any child may
reasonably be expected to succeed in life if he is
denied the opportunity of education. Such an opportunity where the State undertakes to provide it,
is a right which must be made available to all on
equal terms.
With this pronouncement on a subject of general concern to all parents,
particularly those with intelligent children of school-leaving age,
may be contrasted the dozen unsuccessful applications.
Seven applications were made on the basis that the right to
equality had been violated. Four of them related to employment,
while the rest concerned the possession of land. All of them had
political overtones and each was referable to the intervention of
the Cabinet, a Minister or a Member of Parliament of the ruling party.
In three applications, allegations of torture were made against law
enforcement officers. The other two concerned an alleged violation
of the freedom to form and join a trade union and of a language
right. In these twelve applications, the Supreme Court avoided a
consideration of the constitutional issues raised by either declining
to exercise jurisdiction, or after having done so, dismissing them,
on one or other of the following grounds.
Procedural Deficiency
In Palihawadana v. Attorney-General, ^ the Supreme Court upheld
two objections raised by the State, at the close of the argument,
that the petitioner lacked locus standi, and was also out of time.
Neither of these pleas had been taken in the statement of objections
which the respondents were required, by rules of court, to file within
S.C.M. of 27 April 1979.
390
one week of the service on them of notice of application. Sharvananda J (with Ismail J agreeing) based his order on the lack of
locus standi, but made no reference to the time factor. The petitioner’s complaint was that his Member of Parliament had refused to
give him a Job Bank application form. The Member concerned confessed that that he had not directed his mind to the question whether
or not the petitioner satisfied the stipulated eligibility criteria,
since by the time the petitioner applied, he had exhausted all the
application forms. Wanasundera J found as a fact that the Member of
Parliament had selected several persons who lacked the eligibility
criteria, in that they were from families owning substantial properties and in receipt of incomes and pensions. He saw “no significant differences” between the petitioner’s family and most of those
families. Therefore, for whatever reason, the eligibility criteria
was regarded as irrelevant by this particular Member of Parliament.
That was not the basis on which he chose the thousand persons; indeed,
he declined to disclose to Court the guidelines he adopted for the
selection. Sharvananda J, delivering the judgment of the Court,
chose to ignore that aspect of the matter and proceeding on the
theoretical basis that an eligibility criteria existed, rigidly
enforced it and ruled the petitioner out of court. Wanasundera J,
who agreed that the application should be rejected, preferred to do
so on the ground that the impugned act had been done prior to the
enactment of the Constitution and was, therefore, beyond the reach
of the constitutional guarantees.
Also rejected by Wanasundera J (with Thamotheram J and Ismail J
agreeing), as being out of time were acts of torture, cruel, inhuman
or degrading treatment or punishment alleged in Mahenthiran v.
Attorney-General;^ the application to Court was late by one week.
2
In Ranatunge v. Jayawardene, where an acting sub-postmaster of ten
years’ standing alleged that the UNP Member of Parliament for the
area had instigated his removal in consequence of which, after repeated advertisements the permanent appointment had been given to an
unqualified person, Samarakone CJ (with Ismail J and Wanasundera J
S.C.M. of 14 August 1980.
S.C.M. of 3 August 1979.
391
agreeing) upheld the objection taken on behalf of the State that
the petition which should have been made within one month of 7 September 1978 (when the Constitution came into force) had in fact been
filed on 4 June 1979. On the facts, however, the Chief Justice was:
unable to state that the allegation made by the
. petitioner of wrong doing on the part of one or
more of the respondents for political reasons is
unjustified.
Ranasinghe v. Ceylon Plywoods Corporation^ was rejected on a
procedural deficiency of an altogether different character. After
the petitioner had made his application to Court complaining that
three of his fellow workmen had been promoted on purely political
considerations, the impugned promotions had, on the directions of
the Minister, been cancelled. In fact, the Minister informed the
Court that he had so directed because the promotions had been made
“otherwise than in accordance with the scheme of promotions”. The
Court believed that it thereupon became functus:
The cancellation of the promotions complained of has
given the relief or redress sought under Article 126
of the Constitution. The petitioner can have now no
grievance or cause for complaint and therefore cannot
invoke our jurisdiction under Article 126 of the Constitution.
When counsel insisted that the Court do consider whether or not there
had been a breach of a fundamental right, Thamotheram J (with Ismail J
and Weeraratne J agreeing) had only this to say:
We are of opinion that Article 126 of the Constitution does not give us the power to investigate a
grievance which does not exist and give a relief
which the circumstances do not require.
If this is a correct statement of the law, it is within the reach
of the executive to perform an act which violates a person’s fundamental right; restore the status quo in the event of such person
making an application to Court within the prescribed time limit; and
thus prevent any relief being granted in respect of its wrongful act.
It is submitted that once the jurisdiction of the Supreme Court is
invoked in terms of Article 126 in respect of an executive or administrative act, it is incumbent on the Court to determine whether
that act infringed a fundamental right or not. If it did, the fact
that the executive has since taken steps to conform to the Constitution may make it unnecessary for the Court to make any directions
S.C.M. of 17 September 1979.
392
in respect of that act, but will not deprive it of jurisdiction to
grant “such relief . . . as it may deem just and equitable” in
respect of that infringement. It is only by granting such relief
and by demonstrating its readiness to do so, that the Supreme Court
can perform its constitutional duty of exercising its jurisdiction
for the “protection of fundamental rights”.
Evidential Deficiency
In Thadchanamoorthi v. Attorney-General’*’ and Mahenthiran v.
2
Attorney-General, which related to the same transaction, it was
alleged by the two petitioners, who were Tamils and were murder and
robbery suspects, that after they had been taken into police custody,
they had been severely assaulted with hands, shod feet, batons, an
axe handle, fence sticks and the muzzle of a gun. The petitioners
identified the officer-in-charge of the Eravur police station and
two constables as the alleged assailants. Having disposed of Mahenthiran on the ground that that application had been made one week
too late, Wanasundera J (with Thamotheram J and Ismail J agreeing)
was of the view that:
The corroborative evidence of the other petitioner’s
affidavit in the connected case would now be no longer
available to him in view of our ruling. There now remains only the petitioner’s affidavit and the medical
evidence.
The fact that the connected petition had been filed out of time
could not have deprived the accompanying affidavit of any evidential
worth. It had been affirmed to by a person who claimed he was present when Thadchanamoorthi was assaulted by the police. It was, therefore, relevant. But the Court not only disregarded Mahenthiran’s
affidavit; it declined to call for a report from the magistrate as
to the circumstances in which two medical reports were filed in his
record:
Mr.Pullenayagum suggested that the Court should call
for this information from the magistrate. It seems to
me that this is a matter on which the petitioner himself would have been in a position to enlighten us and
ought to have done so.
Consequently, in the view of the Court:
There seems to be considerable doubt as to how or when
these injuries came to be suffered by the petitioner.
3
The case of Velmurugu v . Attorney-General was also one in which
Article 11 was invoked: alleged assault by army personnel. The petitioner, a prominent TULF politician in Amparai, complained that he
Supra. 2. Supra. 3. Supra.
393
had been arrested by a Sinhalese assistant superintendent of police
at a time of communal violence, and handed over to army personnel
to “take him and do as you like”, and that the latter had thereupon,
while transporting him, subjected him to acts of torture, cruelty,
and degrading treatment. According to medical evidence, the petitioner had ten injuries, nine of them contusions and abrasions and
one a fracture of the neck at the left side of the mandible which
was described as grievous. These injuries were alleged to have been
inflicted late in the evening of 9 August 1981, shortly after the
petitioner had been taken into custody. At 11 p.m., when the petitioner was taken before the magistrate, who released him on bail,
he did not complain of the alleged torture, but told the magistrate
that he found it difficult to walk. On 10 August, with the permission of court, he was examined at home by a doctor. This medical
report contained a complaint of assault by army personnel. On 12
August, the petitioner appeared in court and sought permission to
enter hospital. The hospital report of 13 August also contained a
complaint of assault by army personnel. In his statement to the
police on 14 August, he explained that he did not tell the magistrate of the assault because he feared that he would be attacked
again when he was handed back to the assistant superintendent’s
custody; in fact, “when I was put into the jeep again, he showed me
his revolver and said that he would one day or other shoot me”.
Unlike in Thadchanamoorthi, the Court decided in this case,
on its own initiative, to call for a report from the magistrate.
The magistrate denied that the petitioner had told him that he found
it difficult to walk. Attaching great significance to this report,
and much less to the actual sequence of events which made it appear
most improbable that the injuries were self-inflicted, the Supreme
Court dismissed the application.^ As Wanasundera J (with whom
Ismail J and Weeraratne J agreed) explained:
In all the circumstances of this case, I am unable to
say that the petitioner had proved these matters to my
satisfaction.
Sharvananda J (with whom Ratwatte J agreed) thought that the
facts disclosed “a shocking and revolting episode in law enforcement”.
He awarded Rs.10,000 as compensation and directed that appropriate
disciplinary action be taken against the senior police officers for
misconduct.
394
In Denmark, Norway, Sweden and Netherlands v. Greece,^ the European
Commission commented on the ’’inherent difficulties” in the proof of
allegations of torture and ill-treatment:
First, a victim or a witness able to corroborate his
story might hesitate to describe or reveal all that
has happened to him for fear of reprisals upon himself
or his family. Secondly, acts of torture or illtreatment by agents of the police or armed services
would be carried out as far as possible without witnesses and perhaps without the knowledge of higher
authority. Thirdly, where allegations of torture or
ill-treatment are made, the authorities, whether the
police or armed services or the ministries concerned,
must inevitably feel that they have a collective reputation to defend, a feeling which would be all the
stronger in those authorities that had no knowledge
of the activities of the agents against whom the
allegations are made. In consequence, there may be
reluctance of higher authority to admit or allow
inquiries to be made into facts which might show that
the allegations are true. Lastly, traces of torture
or ill-treatment may with lapse of time become unrecognisable, even by medical experts, particularly where
the forms of torture itself leaves . . . few external
marks.
The Supreme Court, which relied on the authority of Strasbourg to
require evidence of “an administrative practice” in both Thadchanamoorthi and Velmurugu, paid no heed at all to the caution thus
expressed.
Restrictive Interpretation
In Wijesinghe v. Attorney-General the petitioner who was
admittedly not a supporter of the ruling party was stripped, by
order of the Cabinet, of her office of sub-post mistress which she
had held for four years, and replaced by a government supporter.
The apparent reason for her removal and replacement was the recommendation of a political victimisation committee appointed by the new
Government following its election to office. There was no hearing
before this committee; the petitioner was not specifically told why
her services were being terminated, nor was she given an opportunity
of defending herself. The committee was of the view that the previous government had shown a preference for the petitioner because
of her political views. Be that as it may, the simple question for
YB 12.
S.C.M. of 30 April 1979.
395
the Supreme Court was whether the petitioner had, by being removed
from her job, been discriminated against on political grounds in
violation of Article 12. The power of appointment and dismissal of
public officers, including sub-post mistresses, was vested in the
Cabinet and, subject to one exception, no court or tribunal had the
power to inquire into, pronounce upon, or in any manner call in
question any decision of the Cabinet in regard to the appointment
or dismissal of a public officer. That single exception was the
jurisdiction vested in the Supreme Court by Article 126.^ In the
exercise of that jurisdiction, the Court was entitled, and indeed
required, to inquire whether the petitioner’s fundamental right to
equality had been infringed by her summary removal without any charges or a hearing. However, in the view of Wanasundera J (with whom
Ismail J and Sharvananda J agreed):
considering the extent and the width of the powers of
the Cabinet, no limitations . . . on its powers can be
lightly assumed.
The Court recognised that:
The Cabinet cannot be expected, in the course of its
multifarious duties, to give its mind to intricate and
technical questions of law in the same manner as a
court of law.
Even assuming that there was a duty on the Cabinet to hear every
intricate legal issue with the same meticulous care and knowledge
as a court of law:
would not such an omission still constitute just a
mere error on the part of the Cabinet ?
As the Court was quick to point out:
Every wrong decision or breach of the law does not
attract the constitutional remedies relating to fundamental rights. Where a transgression of the law takes
place, due solely to some corruption, negligence or
error of judgment, I do not think a person can be
allowed to come under Article 126 and allege that there
has been a violation of the constitutional guarantee.
It is submitted that Article 55(5) intended to place the Cabinet, in
respect of matters relating to the appointment, transfer, dismissal
or disciplinary control of public officers, in the same position as
any other repository of executive power. But by introducing a
different standard by which to judge the actions of the Cabinet, the
Supreme Court has considerably restricted the scope and effect of
that Article.
Art.55(5).
396
In Gnanatilleke v. Attorney-General^ and Sirimanne v.
2
Attorney-General , the impugned acts were those of a Government
Agent. It was alleged that, by a wrong determination of facts,
namely, that they owned land when they in fact did not own, possess
or occupy any land, the petitioners had been “treated unequally” in
the matter of the allocation of state land. In the view of Samarakone CJ (with whom Ismail J and Sharvananda J agreed):
This is not a decision of law but a decision on disputed facts. The bona fides of the 2nd Respondent
[the Government Agent] in making the finding of fact
is not in question. In the circumstances, though the
petitioners may have a grievance, I fail to see how
a wrong decision bona fide made on a question of fact
could constitute a breach of the fundamental right of
equality in the eye of the law.
The Court was not inclined to investigate whether or not the petitioners had been wrongly excluded from the class of persons who would
have been entitled to receive land grants, and to give an appropriate
direction even for the future. In its view, the fact that a public
officer had acted in good faith was a sufficient answer to an allegation of an infringement of a fundamental right. In Dawesius
3
Perera v. Attorney-General, in which it was alleged that a land
acquisition order had been made “as a measure of revenge and harassment on account of the petitioner having opposed the present Member
of Parliament and having openly expressed his political convictions
as pro Sri Lanka Freedom Party”, the Court stressed that discrimination on the ground of political opinion must be proved to be deliberate . Additional ly:
in order to prove that he was discriminated against
on the ground of political opinion he had to show
that the decision to take his land was “for the sole
purpose of taking political revenge”. This he has
miserably failed to do.4*
In Adiapathan v. Attorney-Generalthe language right alleged
to have been infringed was that which entitled a person “to receive
communications from, and to communicate and transact business with,
any official in his official capacity, in either of the national
languages”. The petitioner refused to accept a payment due to him
from the Employees Provident Fund by way of a cheque written in the
S.C.M. of 17 October 1979.
Ibid.
S.C.M. of 25 July 1979.
Per Thamotheram J (with Samarawickrema J and Ismail J agreeing). The emphasis appears in the original judgment.
S.C.M. of 19 June 1979.
397
Sinhala language; he insisted that the cheque be written in his
mother tongue, which was Tamil. Samarakone CJ (with Thamotheram J
and Ismail J agreeing) held that a cheque was not a “communication”.
He distinguished an addendum or appendix which may be added to a
letter and which is read as part and parcel of it; a cheque was
nothing more than an enclosure. By thus taking away an “enclosure”
or an “annexure” from the ambit of a communication, the content of
the latter expression was appreciably shrunk. The Chief Justice
also pointed out that the receipt of a cheque is on a par with the
receipt of currency. It is interesting to note that coins and notes
which are legal tender in Sri Lanka bear the value thereof in both
national languages. Be that as it may, payment is ordinarily made
by legal tender in the absence of any legal provision or any express
or implied agreement for payment to be made by cheque. Therefore,
the petitioner was within his rights in insisting that if payment
was being made by cheque, such cheque should be written in the Tamil
language. But the Supreme Court distinguished that right, to which
a person was entitled “by reason of the civil law of the country”
from a fundamental right guaranteed by the Constitution which alone
was enforceable by the remedy provided by Article 126.
In Yasapala v. Wickremasinghe,^ the Court was called upon,
for the first time, to determine the content of a specific right,
namely, the right of a citizen to form and join a trade union. In
that case, the petitioner, a teacher who absented himself from work
on account of strike action launched by the trade union to which he
belonged, was treated as having vacated his post. Sharvananda J
(with Ismail J and Wanasundera J agreeing) held that the right to
form and join a trade union did not include the right to strike.
When Article 14 guaranteed not merely the freedom of association,
but more specifically, the freedom to form and join a trade union,
it must have had in mind the need for employees to combine for the
purpose of protecting their interests. Why would a citizen form or
join a trade union except to protect his interests ? It is the
mutual need for the protection of their individual and common
interests that bring together a group of citizens engaged in a
particular enterprise or occupation. The Strasbourg institutions
S.C.M. of 8 December 1980.
398
have held that the words “for the protection of his interests” in
ECHR, Article 11, clearly denoting purpose, safeguards the freedom
to protect the occupational interests of trade union members by
trade union action, the conduct and development of which the State
must both permit and make possible. It follows that members of a
trade union have a right, in order to protect their interests, that
the trade union should be heard. Consultations, collective bargaining and the conclusion of collective agreements are some of the
means by which this is accomplished; strike action is another almost
universally accepted method.^ Without it, a trade union cannot
effectively function as an instrument for agitating, negotiating
and bargaining in respect of wages or conditions of work. Without
it, the right to form and join a trade union is lacking in any
content.
An Assessment
The UDHR states that:
Everyone has the right to an effective remedy by the
competent national tribunals for acts violating the
fundamental rights granted him by the constitution
or by law. ^
According to the ICCPR:
Each State Party to the present Covenant undertakes:
(a) To ensure that any person whose rights or freedoms
as herein recognised are violated shall have an
effective remedy, notwithstanding that the violation has been comnitted by persons acting in an
official capacity;
(b) To ensure that any person claiming such a remedy
shall have his right thereto determined by competent judicial, administrative or legislative
authorities, or by any other competent authority
provided for by the legal system of the State,
and to develop the possibilities of judicial
remedy;
(c) To ensure that the competent authorities shall
enforce such remedies when granted.3
The ECHR guarantees that:
Everyone whose rights and freedoms as set forth in
this Convention are violated shall have an effective
remedy before a national authority notwithstanding
that the violation has been committed by persons
acting in an official capacity.^
National Union of Belgian Police v. Belgium (4464/70),
Report: 27 May 19/4; Judgment: 1 EHRR 578; Schmidt v. Dahlstrom
(5589/72), Judgment: 1 EHRR 637; Swenska Lokmannaforbundet v.
Sweden (5614/72), Report: 27 May 1974, Judgment: 1 EHRR 617;
Trade Union X v. Belgium (7361/76), DR 14, 40.
Art.8. 3. Art.2. 3. Art.13.
399
What is deducible from these instruments is that the State is now
under an obligation to provide an “effective remedy”. It has been
suggested’*’ that the factors which go to establish whether a remedy
is “effective” are as follows:
i. the remedy must be accessible, i.e. the individual must be in
a position to start a procedure which will result in a decision
from the relevant authority;
ii. the remedy must be sufficient, i.e. the relevant authority
must have the power to redress the alleged violation if it is,
in fact, established;
iii. the remedy must have some likelihood of being accepted, e.g.
there must not be established precedents against its availability;
iv. the remedy must not be the mere repetition of a remedy which
has already been used.
To these perhaps ought to be added:
v. the remedy must be expeditious, i.e. the individual must be
able to obtain a decision without any unreasonable delay;
vi. the remedy must be inexpensive, i.e. it must be within the means
of the alleged victim of executive action.
Despite its inherent limitations, the special remedy offered
by Article 126 appears to conform to the standards laid down by international law. In the hands of an activist or assertive court, it is
capable of providing relief or redress, expeditiously and in adequate
measure, to a person whose fundamental rights have been or are about
to be infringed. It is perhaps too early to evaluate fairly its
actual performance. It has not been sufficiently invoked. On the
few occasions that it has, relief or redress has not been easily
forthcoming. On the one hand, some of the applications may not have
been properly constituted with all the necessary and relevant material or made in time. Counsel too must have had their own teething
problems in what to them is a comparatively new field of law. On the
other hand, the Court has so far tended to approach the exercise of
its new and potentially powerful jurisdiction with considerable
caution. The circumstances in which the present Court was constituted
J.Raymond, “A Contribution to the Interpretation of Article
13 of the European Convention on Human Rights”, 5 Human Rights
Review, 161.
400
and the nature of its composition may perhaps have contributed to
this obvious self-restraint. But if the Judges are able to approach
their constitutional duty of protecting fundamental rights without
being excessively deferential to the executive or being too astute
to seek a rationale for its every act; if they are willing to show
the same degree of understanding of the individual’s bewilderment
in a maze of rules, regulations, laws and other manifestations of
state power, as it has already done of the functions of the police,
the armed forces and the public service, the machinery now exists
for them to make a significant contribution to the assertion of
individual liberty.
CHAPTER VII
HUMAN RIGHTS UNDER A STATE OF EMERGENCY
A state of public emergency is usually accompanied by the
violation of human rights. Yet, it is the existence of machinery
for the declaration of a state of emergency that enables extraordinary measures to be taken in a democratic society within the
framework of the law to deal effectively with a critical situation
which affects the continued existence of that society itself.
Therefore, the problem, in so far as its impact on human rights
is concerned, is one of ensuring that a state of emergency is not
abused.
The provisions of the law relating to public security have
been invoked in Sri Lanka with increasing frequency. Between
August 1953, when the Government first assumed the power to rule
by emergency regulations, and the end of 1981, a state of emergency
has been in force during the following periods. The immediate
cause for setting it in motion, in respect of each continuous period,
is also set out below.
TABLE 26
STATES OF EMERGENCY, 1947-1981
From To Length
y. m. d.
Immediate Cause
8.53 11. 9.53 1 The Hartal
5.58 26. 3.59 10 Communal riots
9.59 3.12.59 2 9 Assassination of the Prime
Prime Minister
4.61 4. 4.63 1 11 19 Civil disobedience campaign in
the northern provinces
3.64 4. 4.64 1 Electricity Department strike
1.66 7.12.66 11 Agitation in Colombo against the
proposed Tamil Language Regulations
19.12.66 18. 1.69 2 1 Reduction of the rice ration
402
From To Length
y. m. d. Immediate Cause
26.10.70 25.11.70 1 Demonetization of high denomination currency notes
3.71 15. 2.77 5 11 Insurgent activity in the
country
29.11.78 28. 5.79 6 Cyclone relief operations
7.79 27.12.79 5 24 Terrorist activity in the northern provinces
7.80 15. 8.80 1 General strike
6.81 – )
) 6 28
)
Police rampage in Jaffna
8.81 — Communal riots
The shortest single continuous state of public emergency has
been the then statutory month, while the longest has extended to
five years and eleven months. From August 1953, during a period of
twenty-eight years, Sri Lanka has been governed under the provisions
of the Public Security Ordinance for a period of thirteen years,
nine months and twenty days. During the latter half of the toventy-eigjnt
year period, a state of emergency was in existence for over nine
years. Between 1970 and 1977, the executive enjoyed for a period of
six years the uninhibited power to make instant laws, without notice,
scrutiny or discussion, and regardless of whether such laws contravened fundamental rights.
History of Public Security Legislation
The Public Security Ordinance, No.25 of 1947, was enacted at
a time when both the private and public sectors of the country were
virtually crippled by strike action. Demanding better living and
working conditions, higher wages, and trade union and political
rights for government employees, nearly 50,000 workers had come out
in what was then the biggest ever strike organised in the country.
On 5 June 1947, the police opened fire on a demonstration in Colombo, killing a government clerk, V.Kandasamy. Five days later, the
Minister of Home Affairs, Arunachalam Mahadeva, presented the Public
Security Bill in the State Council. He did not even attempt to
disguise the fact that the bill he was presenting was motivated by
403
the general strike:
Government have one function which they cannot
abdicate, and that is, if there is a threat to
orderly government which would place the lives
and fortunes of the people at the mercy of trouble makers and law breakers, which would place
. in jeopardy distribution of food, which would
place in jeopardy all road and rail transport,
and if they are of the view that attempts are
being made to create a general strike which
would paralyse the life of the commmity, any
Government worth the name will have to take up
the challenge and arm themselves with the necessary powers to meet that situation.1
Part II of the Ordinance empowered the Governor to make emergency
regulations “as appear to him to be necessary in the interests of
public security and the preservation of public order and the suppression of mutiny, riot or civil commotion, or for the maintenance
2
of supplies and services essential to the life of the community”.
More specifically, the Governor could by regulation provide for
3
the detention of persons. An emergency regulation prevailed over
all other law, whether or not it expressly purported to amend,
modify or suspend the operation of such law.^ This overriding
effect was extended even to orders or rules made under an emergency
regulation.^ An emergency regulation came into force forthwith
upon its being made by the Governor, without the need for its publ- g
ication. The power to make emergency regulations, however, was
activated only when the Governor proclaimed under Part I of the
Ordinance that he was “of opinion that, by reason of the existence
in Ceylon of a state of public emergency, it is expedient so to do
in the interests of public security and the preservation of public
order or for the maintenance of supplies and services essential to
the life of the community”.^ When a proclamation was made, it g
remained in force until it was revoked by the Governor. Neither
the fact of the existence of a state of public emergency, nor an
emergency regulation or any order, rule or direction made or given
9
thereunder, could be called in question in any court.
State Council Debates, 10 June 1947, col.1936. See also
speeches of J.R.Jayewardene, ibid., col.1969; and National State
Assembly Debates, 31 January 1978, col.673.
S.5(1). 3. S.5(2)(a). 4. S.7.
S.6. 6. S.11. 7. S.2(1).
S.2(2). 9. Ss.3,8.
404
In 1949, one year after Independence, and following considerable agitation by opposition political groups, the Government
sought to liberalise this law. The Public Security (Amendment)
Act, No.22 of 1949, made four significant changes: (1) a proclamation under Part I was limited in duration to one month at a time;^
(2) the making of such proclamation was required to be communi2
cated forthwith to Parliament; (3) the specific reference to
“detention of persons” in the provision enabling emergency regu3
1 at ions to be made was deleted; and (4) the House of Representatives was empowered to add to, alter or revoke any emergency
4
regulation. This amending Act introduced an element of parliamentary control over executive action. The extent of executive
power, however, remained undiminished and, so long as a government
commanded a majority in the House, parliamentary control over the
exercise of that power would be purely formal.
In 1953, the Government removed the subsidy on rice, increased
postal rates and railway fares, and abandoned the free midday meal
which was being provided to school children. To protest against
these measures, the trade unions and left-wing political parties
organised a “hartal” (a general stoppage of work) on 12 August 1953.
On the same day, a state of emergency was declared. Six days later,
a bill to amend the law relating to public security was rushed
through all its stages at one sitting. The Public Security (Amendment) Act, No.34 of 1953, which had retrospective effect from 11
August 1953, enabled the Governor-General to bring Part II into
operation whenever he considered it expedient to do so in view of
the imminence of a state of public emergency.”* Also restored to the
principal enactment was the specific power, by emergency regulation,
to “authorise and provide for the detention of persons”.
S.2(1).
S.2(2). If Parliament at the relevant time stood adjourned
or prorogued, it was required to be summoned within ten days for
this purpose.
S.4(l)(i). This deletion would, however, not have affected
the generality of the power conferred on the Governor-General, and
his power to make a regulation on this subject probably remained
unfettered.
S.4(2).
S.3.
S.5(l)(b).
405
The law relating to public security had been severely criticised in Parliament by the leaders of the left movement. In 1947,
W.Dahanayake (LSSP) expressed himself in hyperbolical language:
This Bill will go down to history as the meanest and
dirtiest law . . . I describe it as the most dastardly,
the most cruel, the most brutal law that has been
inflicted upon the working classes of any country, not
excepting Nazi Germany or Italy under Mussolini. Here,
under the provisions of this Bill, there is complete
and hundred percent annihilation of civil liberties.
. . . I say that this Bill is something which no civilized society should consent to.-*-
In 1949, P.H.W.Silva (LSSP) did not find it possible even to subscribe to a bill the avowed object of which was to extract from the
principal enactment some of its fangs:
The basic,fundamental, repulsive and reactionary
nature of the Public Security Ordinance remains.
. . . And as the amending Bill does not repeal the
Public Security Ordinance but instead tries to show
up the present Bill as amended [sic] as a piece of
harmless democratic legislation, on behalf of our
Party I wish to state that we cannot support the
amendment suggested by this amending Bill.2
In 1953, S.W.R.D.Bandaranaike (SLFP) vehemently objected to the reintroduction of the concept of preventive detention:
The only purpose of this so-called preventive detention
is to cause an injustice owing to the fear and panic,
on the one hand, of the authorities, and on the other,
owing to their incompetence. In other words, when such
an occasion arises, if they feel that A, B, C, D, and
so on, five hundred or a thousand people all over the
place, may conceivably give trouble, the easiest thing
to do is to collar them all and lock them up, no matter
how many, fifty, five hundred or five thousand. That
easy way of dealing with matters is neither in keeping
with those principles of personal liberty inculcated
by democracy nor indeed necessary.
It was not surprising, therefore, that when in 1956 the Mahajana
Eksath Peramuna was formed under the leadership of Bandaranaike, its
manifesto, to which both W.Dahanayake and P.H.W.Silva subscribed,
should promise that:
We shall repeal the Public Security Ordinance . . .
and similar restrictions and invasions of public and
personal rights, particularly those affecting freedom
of association, assembly and s p e e c h . ^
State Council Debates, 11 June 1947, col.2024.
Parliamentary Debates (House of Representatives), 29 March
1949, col.2018.
Ibid., 18 August 1953, col.882.
MEP Programme, s.18.
406
But the Bandar ana ike Government, in which both W.Dahanayake
and P.H.W.Silva were Cabinet Ministers, did not repeal the law
relating to public security. Instead, it took steps to refine that
law and to add a new dimension to it. In March 1959, ten months
after a state of emergency had been declared in the wake of communal disturbances on an unprecedented scale, the Public Security
(Amendment) Act, No.8 of 1959, was enacted by a Parliament from
which every single Opposition member had either walked out or been
carried out on the orders of the Speaker.’‘ Prime Minister Bandaranaike explained his volte face: It is true that our Government Party before the elections felt that the Public Security Ordinance may be safely repealed. But what has happened in recent times has convinced us . . . that any Government needs legislation of this type as a safeguard for the people.^ The amending Act provided for a declaration of a state of emergency 3 in a limited area. It also enabled the armed forces to be called out by the Prime Minister whenever “circumstances endangering the public security in any area have arisen or are imminent and the Prime Minister is of the opinion that the police are inadequate to 4 deal with such situation in that area”; the imposition of a curfew in any area whenever “the Prime Minister considers it necessary to do so for the maintenance of public order” in such area;”
and the declaration of a service to be an “essential service”
whenever “the Prime Minister considers it necessary in the public
interest to do so for the maintenance of any service which, in his
opinion, is essential to the life of the community”. Any cessation
of work, or any act comnitted with a view to securing a cessation of
work, in an essential service, other than “in consequence of a strike
commenced by a registered trade union solely in pursuance of an
industrial dispute” was declared to be an offence.^ These provisions
were contained in a new Part III which could be invoked without the
declaration of a state of public emergency. When invoked, however,
the orders made thereunder were required to be communicated to
Q
Parliament, and they would remain in force only for a month at a time.
For events leading to the exclusion of the Opposition, see
Parliamentary Debates (House of Representatives), 12 February 1959,
col.819 et seq.
Broadcast speech of 14 February 1959, reported in the Observer, 15 February 1959.
S.3. 4. S.12. 5. S.16.
S.17. 7. Ibid. 8. S.21.
407
As with Parts I and II, orders made under Part III, and the circumstances necessitating the making of such orders were declared to be
non-justiciable. ^
The drafting of the 1972 Constitution was undertaken on the
premise that legislative power would be vested exclusively in the
National State Assembly, which would be the “supreme instrument of
state power” under that Constitution, and that the Assembly would
not be free to delegate or in any manner alienate its legislative
power to any other person or institution. The provisions of the
Public Security Ordinance clearly ran counter to this scheme.
Accordingly, the Minister of Constitutional Affairs, Dr.Colvin R.de
Silva, who throughout his political career had consistently opposed
the grant of emergency powers to the executive, made the following
alternate proposals:^
a) A new Public Security Act to be passed by Parliament before the
new Constitution came into operation.
b) A full and classified set of emergency regulations to be passed
by Parliament as a schedule to the new Act.
c) The new Act to provide that, upon proclamation of an emergency
by the Governor-General, the entire schedule of emergency regulations, or such parts of them as the Governor-General decides,
shall come into operation either throughout the country or in
any part of the country which the Governor-General will indicate
in the proclamation.
d) The proclamation will operate as a summoning of Parliament to
meet within a specified period.
e) When Parliament meets it will consider a resolution approving
the proclamation of the emergency.
f) Parliament will be given special power to pass regulations having
the effect of law in a summary way, i.e. without the need of
giving notice or of following the bill procedure. Any special
regulation designed to meet a special need could be made ready
during the period between the making of the proclamation and the
meeting of Parliament.
These proposals were rejected by the Ministry of Defence which
Public Security: A paper for consideration by the Security
Council, prepared by the Ministry of Constitutional Affairs, 14
February 1971.
408
expressed the view that “any variation of the present position is
not in the interests of public security and order”.^ Having regard
to the fact that one month after the Minister had made his proposals,
the Government found it necessary to invoke the provisions of the
Public Security Ordinance, it was inevitable that the existing
position would remain unaltered. Accordingly, the 1972 Constitution
only succeeded in protecting itself from the overriding effects of
emergency regulations.^
The state of emergency declared in March 1971 to deal with a
rapidly developing insurrectionary situation was thereafter renewed
every month for the next six years. In 1978, following a general
election and a change of government, priority was given to the amendment of the Public Security Ordinance for the purpose of ensuring
greater parliamentary control over executive action. As the new
Prime Minister, J.R.Jayewardene, explained:
On several occasions, we in the Opposition tried to
commence a debate on the Emergency, but we were not
successful. We gave notice of several motions dealing
with specific regulations, but they were treated as
private members’ motions and they never came up for
discussion. ^
The Public Security (Amendment) Law, No.6 of 1978, provided that:
(1) the longest period that a state of emergency will remain in force
……………………….4 ………..
without parliamentary approval is fourteen days; (2) if a state
of emergency is revoked within a period of fourteen days, or if it
expires on the fourteenth day, a fresh state of emergency declared
within fourteen days of such revocation or expiry will not take
effect without parliamentary approval;”* and (3) if a state of
emergency has been in operation for a period of ninety consecutive
days, or a period of ninety days in the aggregate during six consecutive calendar months, no further extension nor a fresh declaration
made at any time during the succeeding six calendar months, will be
effective for more than ten days without parliamentary approval by
a two-thirds majority. The Jayewardene Government was, of course,
not seeking to inhibit itself since it then commanded a comfortable
five-sixth majority in the National State Assembly. Additionally,
it caused the legislature to give it an extensive armoury of powers
Views of the Security Council on the Paper submitted by the
Ministry of Constitutional Affairs, (undated).
See ss. 45(4), 134.
National State Assembly Debates, 31 January 1978, col.612.
S.2(2). 5. S.2(5). 6. S.2(6).
409
which no government had previously enjoyed in normal times, and
which could be utilised without the need to declare a state of
emergency:
The Proscribing of Liberation Tigers of Tamil Eelam and Other
Similar Organisations Law, No. 16 of 1978, provided for:
a) the proscription of any movement, society, party, association
or body or group of persons “if the President is of opinion”
that such organisation “advocates the use of violence and is
either directly or indirectly concerned in or engaged in any
unlawful activity;
b) the detention of any person for an aggregate period of one
year “where the Minister has reason to believe or suspect
that” such person “has committed or been concerned in the
commission of any offence under any law and that such offence
was committed in pursuance of or in furtherance of or in
relation to the aims or objects or the apparent or ostensible
aims or objects” of a proscribed organisation;
c) the prohibition of the publication of any matter relating to
any activity of a proscribed organisation, including news
concerning any act alleged to have been committed by such
organisation and of any investigation undertaken in respect
of such act.
The penalties prescribed by this law included mandatory remand,
imprisonment for a period not exceeding seven years, the closure
of printing establishments, and the forfeiture of property; the
last-mentioned penalty being at the discretion, not of a court,
but of a Minister. Neither a proscription order made by the
President, nor a detention order made by the Minister, was
justiciable in a court. This law was in force for a period of
fourteen months, from 23 May 1978 to 20 July 1979.
The Prevention of Terrorism (Temporary Provisions) Act, No.48 of
1979, defines twelve different “acts of terrorism” and provides,
inter alia, for:
a) any police officer not below the rank of sub-inspector to
arrest any person, enter and search any premises, stop and
search any individual or vehicle, and seize any document or
thing, without a warrant, if he “reasonably suspected” such
person, premises, vehicle or thing to be connected with or
410
concerned in any act of terrorism;
b) the retention by the police in custody, without producing
before a magistrate, of a person arrested without a warrant,
for a period of three days, and his mandatory remand thereafter until the conclusion of his trial;
c) the admissibility in evidence of confessions made to the police
while in police custody, not only against the maker thereof,
but also against any other person who is jointly charged;
d) the prohibition, upon pain of punishment, of any retraction
or contradiction at the trial, of any statement made by a
witness to a magistrate;
e) the detention of any person for an aggregate period of eighteen months if “the Minister has reason to believe or suspect
that” such person “is connected with or concerned in” any act
of terrorism;
f) the prohibition of the publication of any matter relating to
the commission of any act of terrorism or the investigation
into any such act.
Minimum periods of imprisonment which are mandatory, the forfeiture
of all movable and immovable property, and the closure of printing
establishments, are among the penalties prescribed by this Act.
A detention order made by the Minister is final and cannot be
called in question in any court or tribunal by way of writ or
otherwise. This Act came into force on 20 July 1979 and, though
originally intended only for a period of three years, is still
operative.
The Essential Public Services Act, No.61 of 1979, empowers the
President to declare any service provided by certain government
departments, public corporations, local authorities and co-operative societies, to be an essential public service. Thereupon,
the failure by any employee to report for work at such establishment, and any attempt to induce an employee to refrain from
so reporting, whether or not in pursuance of a strike conmenced
by a trade union, are offences which are punishable with imprisonment, fine, forfeiture of property and, in the case of a person
who is registered to practise any profession or vocation, by the
removal of the name of such person from such register. Each order
made by the President under this Act remains in force for one
month, subject to approval by resolution of Parliament before the
expiry of the first fourteen days.
411
Concept of a State of Public Emergency
Justiciability
Section 2(1) of the Public Security Ordinance provides that:
Where, in view of the existence or imminence of a state
of public emergency, the President is of the opinion that
it is expedient so to do in the interests of public security and the preservation of public order or for the
maintenance of supplies and services essential to the
life of the comnunity, the President may, by Proclamation published in the Gazette, declare that the provisions of Part II of this Ordinance shall come into operation forthwith or on such date as may be specified in
the proclamation.
Section 3 provides that:
Where the provisions of Part II of this Ordinance are
or have been in operation during any period by virtue
of a Proclamation under section 2, the fact of the
existence or imminence, during that period, of a state
of public emergency shall not be called in question
in any court.
Therefore, in unequivocal language, the legislature has excluded the
jurisdiction of the court to inquire into and pronounce upon the
question whether or not a state of public emergency exists or is
inminent. That question is left to the sole determination of the
President. Under the 1946 and 1972 Constitutions, the determination
was made by the Prime Minister on whose advice the President (and
previously, the Governor-General) acted. In fact, the latter
Constitution specifically provided that:
Upon the Prime Minister advising the President of the
existence of a state of public emergency, the President shall declare a state of emergency.^
A parliamentarian has expressed his understanding of the extent of
this power in the following terms:
This so-called state of emergency is not defined in the
Ordinance. It can be something imaginary. It may be
that the Governor-General can get up one morning – he
might have had a bad dream – and declare a state of
emergency. If in the opinion of the Governor-General ^
there is a state of emergency, he makes a declaration.
Under section 2(1), the President may bring into operation the
extraordinary law-making power contained in Part II only after he
has formed the view that a state of public emergency is in existence or is imminent. That view must necessarily be formed on the
S.134(2).
Parliamentary Debates (House of Representatives), 8 January
1959, col.2848, per E.P.Samarakkody (LSSP).
412
basis of information within his knowledge as Head of the Government,
and in the exercise of his own judgment as the person ultimately
charged with the direction and control of that Government. It is
as much a matter of comnonsense as it is of intuition and conscience.
He may act on reports submitted by his security staff; he may have
regard to advice given by Cabinet and Parliamentary colleagues; or
he may simply apply his own political experience and his knowledge
of men and matters to what he perceives to be portentous trends.
Section 72 of the Ninth Schedule to the Government of India Act
1935 provided that:
The Governor-General may, in cases of emergency, make
and promulgate ordinances for the peace and good government of British India or any part thereof.
In King Emperor v. Benoari Lai Sarma,^ the Privy Council observed
that the question whether an emergency existed at the time when an
ordinance was made and promulgated was a matter of which the Governor2
General was the sole judge.
If then the President is the sole judge of the question whether
a state of public emergency exists or is imminent, is he entitled to
determine that question mala fide ? If, for instance, he anticipates
a parliamentary defeat due to the temporary absence of certain members
of his party, can he invoke, until their return, the regulationmaking power provided for in the Public Security Ordinance by falsely
determining that a state of public emergency exists or is imminent ?
In Benoari Lai Sarma, the Privy Council made the following observation:
Assuming that he acts bona fide and in accordance with
his statutory powers, it cannot rest with the courts to
challenge his view that the emergency exists.3
This dictum seems to suggest that the absence of good faith would
vitiate a determination made by the President. But the absence of
good faith, or mala fides, will not be apparent on the face of a
proclamation made under section 2(1). Such proclamation:
. . . bears no brand of invalidity on its forehead.
Unless the necessary proceedings are taken at law to
establish the cause of invalidity and to get in quashedor otherwise upset, it will remain as effective for its
ostensible purpose as the most impeccable of orders.
[1945] 1 All ER 210.
See also Bhagat Singh v. King Emperor [1931] LR Ind.App.169;
Uganda v. Comm, of Prisons, ex p.Matovu [1966] EA 514.
37 At p.212.
Smith v. East Elloe Rural District Council [1956] 1 All ER
855, at 871.
413
Unlike the Government of India Act 1935, which was being interpreted
in Benoari Lai Sarma, the Public Security Ordinance states that “the
fact of the existence or imminence of a state of public emergency
shall not be questioned in any court”. If the premise upon which
the proclamation is made cannot be questioned in any court, it does
not appear to be possible to establish that that premise is tainted
by mala fides.
In Smith v. East Elloe Rural District Council, Lord Reid,
expressing the minority view, observed that “cases involving mala
fides are in a special position in that mere general words will not
deprive the court of iurisdiction to deal with them11. ^ In Anisminic
2
v. The Foreign Compensation Comnission, the House of Lords held that
the words “shall not be called in question in any court of law”
appearing in section-4(4) of the Foreign Compensation Act 1950 did
not operate to debar any enquiry that may be necessary to decide
whether a tribunal had acted within its authority or jurisdiction.
Lord Reid, expressing the majority view in that case, observed2
If the draftsman or Parliament had intended to introduce a new kind of ouster clause so as to prevent any
enquiry even whether the document relied on was a
forgery, I would have expected to find something much
more specific than the bald statement that a determination shall not be called in question in any court
of law. Undoubtedly such a provision protects every
determination which is not a nullity. But I do not
think that it is necessary or even reasonable to
construe the word ‘determination’ as including everything which purports to be a determination but which
is in fact no determination at all.3
He explained : what he meant by “nullity”:
It may have given its decision in bad faith. It may
have made a decision which it had no power to make.
It may have failed in the course of the enquiry to
comply with the requirements of natural justice. It
may in perfect good faith have misconst