Advancing Fundamental Rights in SL: the cherished role of the Supreme Court
Part III :Thursday, December 5, 2019
Reasons must be given at least when a decision is challenged; if reasons are not given, a citizen cannot tell whether the decision is reviewable (by way of appeal, revision, writ, or fundamental rights application) and will thus be deprived of one of the protections of the law under Article 12(1): Karunadasa v Unique Gemstones Ltd; Ceylon Printers v Commissioner of Labour; Mendis v Perera; and Lanka Multi - Moulds v Wimalasena. Natural justice applies also to revocation of a decision as decided by the Supreme Court in Wijepala v Jayawardene and Thanu Contractors v Matala MC.
Right to vote
Right to vote is not expressly enumerated as one of the fundamental rights in Chapter 3 of the Constitution. Facts in Karunatilaka v Dissanayake, revealed that the President suddenly declared a state of emergency and postponed, sina die, the five Provincial Council elections already scheduled. Two registered voters petitioned for infringement of fundamental rights as they were denied the opportunity of voting and asked the Supreme Court to quash the President’s order and to direct the Commissioner of Elections to fix a date for the poll. The Supreme Court held, that although the right to vote is not a fundamental right, if a person is in fact duly registered to vote the exercise of his vote is an expression of his choice of candidates; such exercise is therefore part of his fundamental right to freedom of speech and expression. The relief was granted.
In Mediwaka v Dissanayake, the petitioners’ right to vote had not been infringed. They complained that others in the same electoral district had not been allowed to vote and that the election had not been free or fair. The Supreme Court held, that the right to vote had an individual as well as a collective aspect: the value of one’s’ vote was affected by preventing other like- minded persons from voting.
The Court referred to ICCPR Article 25 and relief was granted. Not only is a citizen entitled to himself to vote at a free, equal and secret poll, but he also has a right a genuine election guaranteeing the free expression of the will of the entire electorate to which he belongs. The ICCPR Article 25 recognizes the right of everyone to take part in the conduct of public affairs, directly or through freely chosen representatives; the right to vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballet, guaranteeing the free expression of the will of the electors.
As the facts in Thavaneethan v Dissanayake revealed, for the General Election of 2001, arrangements had been made for persons in the ‘uncleared areas’ (ie., those not controlled by the Government) to cross-over through check points to the ‘cleared areas’, where special polling booths had been set up for them to vote. On the morning of the polling day, without any prior notice and on the pretext of vague ‘security concerns’ the check points were closed; about 55,000 voters from two electoral districts were thereby prevented from voting. The Supreme Court held, that the election was not free or fair, and that there had been an infringement of the freedoms of speech and expression, and of movement. Compensation was granted by way of relief. While those check points were being closed, unprecedented arrangements were being made for the President, Prime Minister , Speaker, Deputy Minister of Defence and one or two others to vote from the comfort of their homes: The Court held that this was also a violation of the right to equality.
Freedom of speech and expression
Facts in Fernando v Sri Lankan Broadcasting Corporation revealed that, consequent upon the sudden stoppage of the “non Formal Education Programme”, a listener who had occasionally participated in previous programmes complained of the infringement of his rights. The Supreme Court held that it was not an infringement of his freedom of speech as a mere listener; but was an infringement of his rights as a participatory listener.
The Supreme Court held further that the petitioner might have complained that the arbitrary stoppage of the programme was an infringement of his freedom of thought, as he was thereby denied information, information being the staple food for thought. The Court also held that the freedom of speech could be invoked in combination with other freedoms and that the freedom of speech extends to and includes implied guarantees necessary to make the expressed guarantees meaningful. Thus it may include the right to obtain and record information (through interviews and tape recordings),
where such information was necessary for the exercise of the freedom of speech, “and, arguably, it may even extend to a privilege not to be compiled to disclose sources of information, if that privilege is necessary to make the right to information fully meaningful” - of undoubted interest to journalists.
International obligations
It has been recognized for many years that statutes may be interpreted in the context of Sri Lanka’s obligations under International Law and Covenants. Thus in Sirisena v Perera, it was held that an ‘arrest’ includes not only a deprivation of liberty upon suspicion of having committed an offence, but also any arbitrary deprivation of liberty. The ICCPR recognizes that everyone has the right to liberty and security of person, and that no one shall be subject to arbitrary arrest and detention, and any ambiguity in Article 13(1) must be resolved accordingly. In Centre for Policy Alternatives v Dissanayake, recourse was had to Article 25, ICCPR. In Perera v UGC, the Supreme Court observed that the opportunity of education must be accessible to all on equal terms, citing Article 13 of ICESCR. In Hewage v UGC, reliance was placed on Sri Lanka’s obligation to make higher education more accessible, as well as accessible on the basis of merit. So also in Farwin v Wijeyesiri, the right to higher education was recognized.
Singharasa case
Singharasa case raises a number of questions which mixes International Law with Constitutional Law. The petitioner in Singharasa v The Attorney-General, had been indicted for trial before the High Court under Emergency Regulations and the Prevention of Terrorism (Temporary Provisions) Act (No 48 of 1979 as amended), under charges inter alia for having conspired to overthrow the lawfully elected government. After conviction by the High Court, his appeal to the Court of Appeal being dismissed (subject to a reduction in the sentence), the application for special leave to appeal to the Supreme Court was also refused. Thereafter the petitioner sought to have the said order / judgement of the Supreme Court revised and / or reviewed and to have the said conviction and sentence set aside on the basis of and pursuant to, the findings of the Human Rights Committee in Geneva established under the ICCPR to which the President as Head of State acceded and had made a declaration accordingly.
Referring to the distinction between the Monistic and Dualist theories and holding that Sri Lanka fell into the latter category and drawing attention to the exercise of (governmental) executive power of the President to enter into treaties in terms of Article 33 (1) which is subject ‘to the mutations thereto in the context of sovereignty as laid down in Articles 3, 4 and 33(f) of the Constitution’, His Lordship, the Chief Justice Sarath N Silva held that the President, not being the repository of plenary executive power as in the case of the Crown in the UK, nor the repository of the legislative power of the people as decreed in Article 3 read with Article 4(a) and 75 (which lay down the law making power) exemplified by Article 76(1) as well which reveals the scope and content of the President’s power to exercise legislative power (and there being no material showing that the President had any authority from Parliament, post or prior to making the impugned declaration),the President’s accession to the Optional Protocol in 1977 and the Declaration made was inconsistent with the Provisions of the Constitution and was therefore ultra vires.
On the judicial reasoning as highlighted above in regard to the President’s accession to the said Optional Protocol and the Declaration as Head of State and government, the Court held that the President’s said actions were also a purported conferment of a judicial power on the Human Rights Committee at Geneva to indicate a public law right of an individual within the Republic and is in consistent with the provisions of Article 3 read with Articles 4 (c) and 105(1) of the Constitution.
Undoubtedly this is a situation brought about by the purported exercise of executive power by the President, which power is also reposited in the people, but with reference to the people at least through the conduit of people’s legislative power vested in the President, with or without necessity for a referendum. It is submitted with respect that whatever bearing that ruling may have on International Law, the said Supreme Court’s ruling must rank as a benchmark in upholding the concept of sovereign power of the people as contained and entrenched in Article 3 of the Constitution of Sri Lanka.
SAITM judgement
In another landmark judgement that could open the way for private sector medical training, the Supreme Court recently ordered the Sri Lanka Medical Council (SLMC) to professionally register three medical graduates of the South Asian Institute of Technology and Medicine of Sri Lanka (SAITM) as medical practitioners in terms of section 29(2) of the Medical Ordinance forthwith. The Court also similarly instructed the Health Ministry and related agencies to ensure that the State sector health care system accepts the SAITM MBBS. The Supreme Court further ordered to Medical Council to pay a compensation of Rs. 2,000 each to the three petitioners.
This judgement would be applicable to a group of 83 medical graduates who have passed out from the SAITM Medical Faculty. Delivering judgement regarding the Fundamental right petition by three SATIM students Justice Preethi Padman Surasena observed that the action and conduct of the SLMC being a Council created by statute has amounted to take the law into its own hands with deliberate intension to flout the law and violate the previous order made by the Supreme Court as well as the Court of Appeal. Justice Surasena further observed that the SLMC was not exempted from obeying the statutory provisions of the Medical Ordinance and the Universities Act.
The Supreme Court declared that any decision by the respondents including the Health Services Director General, Health Minister, Health Ministry Secretary and the SLMC to exclude the medical graduates of SAITAM, from being eligible for the award of internship appointments as medical officers on the sole basis that they are SAITAM graduates as reflected in the circular dated 29.01.2019, was ‘illegal’ and has ‘no force in law’.
The Court directed the respondents take all necessary action to comply with the directions given in this judgement within three weeks from the date the judgement was pronounced. In its judgement, the Supreme Court declared that the SLMC has infringed the petitioners’ fundamental right to the freedom to engage in their preferred lawful occupation or profession, guaranteed by Article 12(1) and 14(1) (g) of the Constitution.
(Prof. Sarath Mathilal de Silva is a regular columnist discussing legal matters that he thinks are useful to readers)
Concluded
Right to vote
Right to vote is not expressly enumerated as one of the fundamental rights in Chapter 3 of the Constitution. Facts in Karunatilaka v Dissanayake, revealed that the President suddenly declared a state of emergency and postponed, sina die, the five Provincial Council elections already scheduled. Two registered voters petitioned for infringement of fundamental rights as they were denied the opportunity of voting and asked the Supreme Court to quash the President’s order and to direct the Commissioner of Elections to fix a date for the poll. The Supreme Court held, that although the right to vote is not a fundamental right, if a person is in fact duly registered to vote the exercise of his vote is an expression of his choice of candidates; such exercise is therefore part of his fundamental right to freedom of speech and expression. The relief was granted.
In Mediwaka v Dissanayake, the petitioners’ right to vote had not been infringed. They complained that others in the same electoral district had not been allowed to vote and that the election had not been free or fair. The Supreme Court held, that the right to vote had an individual as well as a collective aspect: the value of one’s’ vote was affected by preventing other like- minded persons from voting.The Court referred to ICCPR Article 25 and relief was granted. Not only is a citizen entitled to himself to vote at a free, equal and secret poll, but he also has a right a genuine election guaranteeing the free expression of the will of the entire electorate to which he belongs. The ICCPR Article 25 recognizes the right of everyone to take part in the conduct of public affairs, directly or through freely chosen representatives; the right to vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballet, guaranteeing the free expression of the will of the electors.
As the facts in Thavaneethan v Dissanayake revealed, for the General Election of 2001, arrangements had been made for persons in the ‘uncleared areas’ (ie., those not controlled by the Government) to cross-over through check points to the ‘cleared areas’, where special polling booths had been set up for them to vote. On the morning of the polling day, without any prior notice and on the pretext of vague ‘security concerns’ the check points were closed; about 55,000 voters from two electoral districts were thereby prevented from voting. The Supreme Court held, that the election was not free or fair, and that there had been an infringement of the freedoms of speech and expression, and of movement. Compensation was granted by way of relief. While those check points were being closed, unprecedented arrangements were being made for the President, Prime Minister , Speaker, Deputy Minister of Defence and one or two others to vote from the comfort of their homes: The Court held that this was also a violation of the right to equality.
Freedom of speech and expression
Facts in Fernando v Sri Lankan Broadcasting Corporation revealed that, consequent upon the sudden stoppage of the “non Formal Education Programme”, a listener who had occasionally participated in previous programmes complained of the infringement of his rights. The Supreme Court held that it was not an infringement of his freedom of speech as a mere listener; but was an infringement of his rights as a participatory listener.
The Supreme Court held further that the petitioner might have complained that the arbitrary stoppage of the programme was an infringement of his freedom of thought, as he was thereby denied information, information being the staple food for thought. The Court also held that the freedom of speech could be invoked in combination with other freedoms and that the freedom of speech extends to and includes implied guarantees necessary to make the expressed guarantees meaningful. Thus it may include the right to obtain and record information (through interviews and tape recordings),
where such information was necessary for the exercise of the freedom of speech, “and, arguably, it may even extend to a privilege not to be compiled to disclose sources of information, if that privilege is necessary to make the right to information fully meaningful” - of undoubted interest to journalists.
International obligations
It has been recognized for many years that statutes may be interpreted in the context of Sri Lanka’s obligations under International Law and Covenants. Thus in Sirisena v Perera, it was held that an ‘arrest’ includes not only a deprivation of liberty upon suspicion of having committed an offence, but also any arbitrary deprivation of liberty. The ICCPR recognizes that everyone has the right to liberty and security of person, and that no one shall be subject to arbitrary arrest and detention, and any ambiguity in Article 13(1) must be resolved accordingly. In Centre for Policy Alternatives v Dissanayake, recourse was had to Article 25, ICCPR. In Perera v UGC, the Supreme Court observed that the opportunity of education must be accessible to all on equal terms, citing Article 13 of ICESCR. In Hewage v UGC, reliance was placed on Sri Lanka’s obligation to make higher education more accessible, as well as accessible on the basis of merit. So also in Farwin v Wijeyesiri, the right to higher education was recognized.
Singharasa case
Singharasa case raises a number of questions which mixes International Law with Constitutional Law. The petitioner in Singharasa v The Attorney-General, had been indicted for trial before the High Court under Emergency Regulations and the Prevention of Terrorism (Temporary Provisions) Act (No 48 of 1979 as amended), under charges inter alia for having conspired to overthrow the lawfully elected government. After conviction by the High Court, his appeal to the Court of Appeal being dismissed (subject to a reduction in the sentence), the application for special leave to appeal to the Supreme Court was also refused. Thereafter the petitioner sought to have the said order / judgement of the Supreme Court revised and / or reviewed and to have the said conviction and sentence set aside on the basis of and pursuant to, the findings of the Human Rights Committee in Geneva established under the ICCPR to which the President as Head of State acceded and had made a declaration accordingly.
Referring to the distinction between the Monistic and Dualist theories and holding that Sri Lanka fell into the latter category and drawing attention to the exercise of (governmental) executive power of the President to enter into treaties in terms of Article 33 (1) which is subject ‘to the mutations thereto in the context of sovereignty as laid down in Articles 3, 4 and 33(f) of the Constitution’, His Lordship, the Chief Justice Sarath N Silva held that the President, not being the repository of plenary executive power as in the case of the Crown in the UK, nor the repository of the legislative power of the people as decreed in Article 3 read with Article 4(a) and 75 (which lay down the law making power) exemplified by Article 76(1) as well which reveals the scope and content of the President’s power to exercise legislative power (and there being no material showing that the President had any authority from Parliament, post or prior to making the impugned declaration),the President’s accession to the Optional Protocol in 1977 and the Declaration made was inconsistent with the Provisions of the Constitution and was therefore ultra vires.
On the judicial reasoning as highlighted above in regard to the President’s accession to the said Optional Protocol and the Declaration as Head of State and government, the Court held that the President’s said actions were also a purported conferment of a judicial power on the Human Rights Committee at Geneva to indicate a public law right of an individual within the Republic and is in consistent with the provisions of Article 3 read with Articles 4 (c) and 105(1) of the Constitution.
Undoubtedly this is a situation brought about by the purported exercise of executive power by the President, which power is also reposited in the people, but with reference to the people at least through the conduit of people’s legislative power vested in the President, with or without necessity for a referendum. It is submitted with respect that whatever bearing that ruling may have on International Law, the said Supreme Court’s ruling must rank as a benchmark in upholding the concept of sovereign power of the people as contained and entrenched in Article 3 of the Constitution of Sri Lanka.
SAITM judgement
In another landmark judgement that could open the way for private sector medical training, the Supreme Court recently ordered the Sri Lanka Medical Council (SLMC) to professionally register three medical graduates of the South Asian Institute of Technology and Medicine of Sri Lanka (SAITM) as medical practitioners in terms of section 29(2) of the Medical Ordinance forthwith. The Court also similarly instructed the Health Ministry and related agencies to ensure that the State sector health care system accepts the SAITM MBBS. The Supreme Court further ordered to Medical Council to pay a compensation of Rs. 2,000 each to the three petitioners.
This judgement would be applicable to a group of 83 medical graduates who have passed out from the SAITM Medical Faculty. Delivering judgement regarding the Fundamental right petition by three SATIM students Justice Preethi Padman Surasena observed that the action and conduct of the SLMC being a Council created by statute has amounted to take the law into its own hands with deliberate intension to flout the law and violate the previous order made by the Supreme Court as well as the Court of Appeal. Justice Surasena further observed that the SLMC was not exempted from obeying the statutory provisions of the Medical Ordinance and the Universities Act.
The Supreme Court declared that any decision by the respondents including the Health Services Director General, Health Minister, Health Ministry Secretary and the SLMC to exclude the medical graduates of SAITAM, from being eligible for the award of internship appointments as medical officers on the sole basis that they are SAITAM graduates as reflected in the circular dated 29.01.2019, was ‘illegal’ and has ‘no force in law’.
The Court directed the respondents take all necessary action to comply with the directions given in this judgement within three weeks from the date the judgement was pronounced. In its judgement, the Supreme Court declared that the SLMC has infringed the petitioners’ fundamental right to the freedom to engage in their preferred lawful occupation or profession, guaranteed by Article 12(1) and 14(1) (g) of the Constitution.
(Prof. Sarath Mathilal de Silva is a regular columnist discussing legal matters that he thinks are useful to readers)
Concluded
