By Ruwan Laknath Jayakody –

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. 

While this doctrine is considered as applicable only to Constitutional amendments and not to Acts of Parliament, it is deemed so only on the implied understanding that such Acts of Parliament are in the first instance in conformity with the Constitution. In the case of the local PTA this is obviously not the case. 

The doctrine as has been applied by the Indian and Pakistani apex and superior Courts have held that certain rights contained in the fundamental rights chapters, more specifically the right to equal status before the law and the right to equal protection of the law (not all fundamental rights are considered basic, essential or salient), fall within the ambit of that which forms the basic or salient features of the Constitution and thereby a key component of the basic structure too. 

In these aforementioned cases, amongst others, constitutional supremacy, the republican and democratic forms of Government, the secular character of the Constitution, the separation of powers between the legislature, the Executive and the judiciary, and the unitary character of the Constitution have also been recognized as the basic, essential, fundamental and salient features of the Constitution, and as applicable in this instance, the freedom and dignity of the individual too. 

Ultimately, the basic structure doctrine, whilst recognizing the wide ambit afforded to the legislature via the powers vested in the Parliament, does not recognize “the power to destroy or emasculate the basic elements or fundamental features of the Constitution.” The doctrine is therefore a restrictive limitation on Parliamentary supremacy, not a contravention or usurpation of legislative power and authority. 

In Sri Lanka, though Parliamentary supremacy is enshrined in the Constitution, where under Article 75, the legislature is afforded the power to make legislation including to repeal, amend or add to the Constitution and even have retrospective application (in this instance, however such retrospective effect must be expressly stipulated in the law being introduced), Article 75(1) imposes a limit in that no such law made by the Parliament can have the effect of suspending the operation of any part of the Constitution. Further, even though Article 16(1) states that all existing written law shall be valid and operative notwithstanding any inconsistency with the preceding provisions of the Fundamental Rights Chapter of the Constitution, the PTA was not part of the existing written law at the time of the promulgation of the Second Republican Constitution. Unwritten laws on the other hand, refer to laws which become so by virtue of customary practice. 

It is also pertinent to note that on the matter of the exercise of sovereignty, Article 4(d) of the holds that all Governmental organs engaged in Executive or administrative action or otherwise, are duty bound to respect, secure and advance fundamental rights. Also, as per the rule and doctrine of harmonious construction in relation to the interpretation and construction (in consonance with other laws) of statutes, the codified sets of laws found in the Constitution, has entrenched within it a symbiotic character.  

In this context, Article 120 states that the Supreme Court possess the “sole and exclusive jurisdiction” to decide on any matter pertaining to whether a bill or any provisions in it are inconsistent with the Constitution. There are exceptions however to the exercise of this constitutional jurisdiction, and applicable in this instance involving the PTA which was thrust upon the Parliament as an urgent bill, are Articles 120(c) and 120(d), where if a bill or a provision which seeks to amend (constitutes a repeal or alteration or addition) or repeal and replace a provision in the Constitution, is intended to be passed with a Parliamentary special majority as per Article 84, the latter which deals with bills inconsistent with the Constitution. In such an instance, all that the Supreme Court determines is whether a referendum consequent to a special majority is required. Article 123(2)(b) holds that in the event the Supreme Court determines that a bill or any provisions in it are inconsistent with the Constitution, it only requires a special majority to be approved and passed and in the case of the Supreme Court’s special determination on the PTA Bill (SC SD No. 7/79), they had held such. 

Further, in relation to urgent bills, deemed urgent in terms of national interest, under Article 122(1)(b) {it has since been repealed}, the President by way of a written reference to the Chief Justice (CJ) can call for the special determination of the Supreme Court on whether any provision of such a bill is inconsistent with the Constitution, as such is a requirement. 

On the other hand, the Article 123(3) {it too has since been repealed} reads, “In the case of a Bill endorsed as provided in Article 122, if the Supreme Court entertains a doubt whether the Bill or any provision thereof is inconsistent with the Constitution, it shall be deemed to have been determined that the Bill or such provision of the Bill is inconsistent with the Constitution, and the Supreme Court shall comply with the provisions of paragraphs (1) and (2) of this Article. In the case of the latter Article 123(2), this concerns whether the bill in question should be placed on the Order Paper of the Parliament or not, or whether it can only be passed by a special majority or strictly with a special majority plus approval at a referendum before the people.

In ‘Politics, Justice and the Rule of Law’, Nihal Sri Ameresekere notes that, “At the hearing into the constitutionality of an ‘urgent bill’, the citizens of the country have no opportunity, whatsoever, of being heard before the Supreme Court. Hence, it is due to such very reason that Article 123(3) of the Constitution has an inbuilt estoppel (defined as when ‘a person is prevented from making assertions that are contradictory to his or her prior position on certain matters before the court’) on the Supreme Court’s jurisdiction to determine as consistent with the Constitution, an ‘urgent bill’ on the constitutionality of which, the Supreme Court entertains any doubts, whatsoever, in which event upon the very entertainment of a doubt, ipso facto (understood as being by the fact itself) the ‘urgent bill’ is constitutionally deemed to have been determined to be inconsistent with the Constitution.” 

Unfortunately, Articles 122 and 123(3) have since been repealed respectively by way of Sections 30 and 31 of the 19^th Amendment to the Constitution but at the time of the hearing of this case in the year 2000 they had not been repealed and were very much part of the existing law at the time and as such the provisions contained in the said clause could have been invoked by the Supreme Court.

In Ganeshanantham v. Vivienne Goonewardene and Three Others (S.C. No. 6/83 Special – S.C. Application No. 20/83.), Neville Samarakoon CJ., held that although the Court had no jurisdiction to revise their own decisions, under the jurisdiction afforded by Article 126, in relation to fundamental rights, a dual determination as to the infringement or threat of infringement and whether such is by way of Executive or administrative action, should be made. Samarakoon CJ., further held that “As a superior Court of record, the Supreme Court has inherent powers to correct its errors which are demonstrably and manifestly wrong and where it is necessary in the interests of justice. Decisions made per incuriam (meaning that a judgment of a court has been decided without reference to a relevant and/or contradictory statutory provision or such provisions or applicable rule/s or pertinent judicial precedent/s, the latter being earlier judgments which constitute binding authority, whereby a lack of care is shown) can be corrected. These powers are adjuncts to the existing jurisdiction to remedy injustice – they cannot be made the source of new jurisdictions to revise a judgment rendered by that court.”

Further, in Jeyaraj Fernandopulle v. Premachandra De Silva and Others (S.C. Application Nos. 66 and 67/95), Dr. Amerasinghe J., held that the Court possessed inherent powers to correct decisions made per incuriam. Dr. Amerasinghe J., further explains, “A decision will be regarded as given per incuriam if it was in ignorance of some inconsistent statute or binding decision – wherefore some part of the decision or some step in the reasoning on which it is based is found on that account to be demonstrably wrong.” Elsewhere in the same judgment it is noted that, “An order made on wrong facts given to the prejudice of a party will be set aside by way of remedying the injustice caused.”

Conclusion 

It is therefore imperative that provisions in the law be established to allow for the post-enactment judicial review of legislation and prospective overruling. While judicial activism is sometimes rightly derided when used as a carte blanche license to legislate from the bench as per the whims and fancies of the black robed wigs, leading thus to judiciocracy, similar is the ill effect caused by overcautious judicial restraint. Judicial restraint is not a license for the Court, simply put, to wash their hands off from performing their constitutional duty and responsibility to uphold and safeguard constitutionally enshrined guarantees by hiding behind the veil of procedural law. Judicial activism when judiciously applied can serve as a necessary measure and sometimes as the only bulwark against the numerous excesses of the legislature. In such instances, it is not an arrogation of power, of the Parliament by the Court. It is solely a caveat. Therefore, it can be argued with a certain measure or degree of conviction that in Weerawansa v. Attorney General and Others that, considering the available, relevant law and the space such affords for deft legal maneuvering to assist in arriving at a fair and just conclusion, the Court should have taken an activist stance, to if not reverse, at the very least rectify the point of law on which the case was decided upon, that was adopted in this instant case. The doctrine of binding precedent in Latin reads as stare decisis, which in English translates ‘to stand by things decided’. In Weerawansa v. AG and Others, the Court should not have stood by things decided. The result is that the cankerous PTA, which has damned the detained, both the legitimate political prisoners and genuine offenders alike, to a life of earthly hell, continues to stalk our jurisprudence demanding its pound of human bondage.