Legislative Excess v. Judicial In-Activism: An Analysis Of Weerawansa v. Attorney General & Others
Ruwan Jayakody
Who judges the judges? Between the harsh spotlight of the fourth estate, the apathy or vitriol of the court of public opinion, the hindsight of posterity, and the cat and mouse game pertaining to the checks and balances involving the Executive, the legislature and the judicial branches, the safest bet is with the brethren of judicial peers. Yet, is the Supreme Court, which is tasked with making special determinations on the constitutionality of bills, in erring on the side of caution when it comes to preserving the interests of national security which are inevitably pitted against the need to protect the civil liberties enshrined in the Constitution, hamstrung by Constitutional impediments or by judicial in-activism? If it is a case of the latter, what if it serves to perpetuate injustice on a systematic and gross scale, beyond any reasonable interpretation of proportionality? This is the challenge that Weerawansa v. Attorney General and Others (SC Application No. 730/96) continues to pose.
The facts of the case
On the surface of it, the facts of this case which involved an arrest of a person by a Police officer for alleged unlawful activity (in this case the illegal importation of explosives) and detention by way of a Ministerial order, both under the Prevention of Terrorism (Temporary Provisions) Act, No. 48 of 1979 {PTA}, and an order for the remand of a suspect by a Magistrate under the Customs Ordinance, are typical of cases involving the draconian PTA. In this instance, the apex Court, in a judgment penned by Justice (J) Mark Fernando with Dr. A.R.B. Amerasinghe J. and Ranjith Dheeraratne J. concurring, held that the requisite preconditions for an arrest and detention to be valid had not been met, and that therefore the petitioner’s fundamental rights under Articles 13(1) {which holds that no one should be arrested except in accordance with the procedure set out in law and that the person arrested should be informed of the reason for the said arrest} and 13(2) {which states that anyone in custody, detention or one who has been deprived of personal liberty should be brought before a judge of the nearest competent court according to the procedure laid down in the law and that the said person may not be held thus any longer sans a judge’s order made in conformity with the lawfully established procedure} of the Constitution, had been infringed and violated. Case closed.
Not quite.
Fernando J. further states thus. “When the PTA Bill was referred to this Court, the Court did not have to decide whether or not any of those provisions constituted reasonable restrictions on Articles 12(1) {the right to equality before the law and the equal protection of the law}, 13(1) and 13(2), permitted by Article 15(7) (in the interests of national security and/or public security), because the Court was informed that it had been decided to pass the Bill with a two-thirds majority (from all 225 Parliamentarians including those not present – a special majority). The PTA was enacted with a two-thirds majority, and accordingly, in terms of Article 84, the PTA became law despite any inconsistency with the Constitutional provisions.”
The applicable legal regime and a critical analysis of the reasoning of the Supreme Court in its judgment
A question arises at this juncture. Does the continued enforcement of a law which patently flies in the face of the Constitution, in this case the PTA, not constitute a violation or denial of Article 12(1), specifically the clause about the right to the equal protection of the law? Moreover, if one construes thus, that indeed Article 12(1) does get breached, does this not then at the very least undermine (if not abridge or curtail or limit by way of altering or destroying by way of revoking) the basic structure of the Constitution?
What is the basic structure of the Constitution? The concept originated from German jurist Prof. Dietrich Conrad’s ‘implied limitations of the amending power’ theory, which he explained as “Any amending body organized within the statutory scheme, howsoever verbally unlimited its power, cannot by its very structure change the fundamental pillars supporting its constitutional authority.” The basic structure doctrine (concerning the basic, essential, fundamental features of the Constitution) subsequently evolved out of Indian jurisprudence in Supreme Court cases such a dissent in Sajjan Singh v. State of Rajasthan, then I.C. Golaknath v. State of Punjab (which reversed Shankari Prasad v. Union of India), before reaching its ultimate form in Kesavananda Bharati v. State of Kerala, Indira Nehru Gandhi v. Raj Narain, and Minerva Mills v. Union of India. The Pakistani Supreme Court has since taken to terming the principle as the salient features doctrine. In the Golaknath case, Hans Raj Khanna J. held that “The power of amendment under (a particular Article) does not include the power to abrogate the Constitution nor does it include the power to alter the basic structure or framework of the Constitution.”, adding however that subject to the retention of the basic structure, the power of amendment is absolute and includes within itself the power to amend Articles of the Constitution, including those relating to fundamental rights as well as those which may be said to relate to essential features.
