By Nihal Abeyasingha –

Nihal Abeyasingha

The Easter Sunday bombings took place on 21 April 2019. There has been much talk, discussion and “passing the buck” after that. On the first anniversary of that event, the Cardinal Archbishop of Colombo had said “Christians had forgiven the killers. However, the Catholic Bishops’ Conference of Sri Lanka and the cardinal demanded that the perpetrators, their collaborators and supporters be brought to justice.” Speaking to the BBC (as Prime Minister) in 2019, Ranil Wickremesinghe had said “Sri Lanka’s prime minister has told the BBC he was “out of the loop” when it came to intelligence warnings ahead of the deadly Easter Sunday bombings. Ranil Wickremesinghe said that crucial information about any potential danger in the country was not passed to him. Cardinal Malcolm Ranjith, who led commemorations on the second anniversary in 2021 said at a commemorative service in Colombo, he was “deeply saddened” by the lack of progress in the investigation. “We have to stress that what is happening at the moment is an attitude of ‘no care’ where all factors are not properly investigated.” 

President Ranil Wickremesinghe said that Scotland Yard has been requested to review the reports and reach a final conclusion on claims that there was a hidden hand behind the bombings. The President expressed these views at a meeting with USAID Administrator Samantha Power today. (Colombo Gazette, 13 January 2023). Rivers of talk, but little concrete action. Even what the government claimed was done, has not been fully and appropriately implemented. And the judgment of the Supreme Court on 12 January 2023, (to be cited below by reference to the page number) At p.115,  the Court notes “But the learned President’s Counsel who appeared for the Respondent Archbishop of Colombo) in SC/FR/195/2019 submits in his written submissions that there has been not only an underpayment of compensation but also nonpayment as far as the majority of the victims and families are concerned.” Accordingly the Court has ordered an investigation and a report to be submitted within three months (at p. 115)and a progress report on the scheme of payment and the details about payments made by the above respondents and any benefactors must be made available to this Court within 6 months (at p. 121). Besides promises of compensation and inadequately implemented programmes, as far as I know this is the first concrete action as regards the Easter bombings that has been taken.     

It is true that the perpetrators have not been identified yet. But there is some relief in the recent judgment of the Supreme Court. In the present article, I offer three preliminary reflections on the judgment, which could provide some basis for hope and contribute to the double talk of politicians and the actions of over-zealous law enforcement officers.  First, I reflect on the basis on which the Court entertained the petition; secondly, the Carltona Doctrine and thirdly, the recognition of delict (and therefore libability) under public law.  

The Basis Of Leave To Proceed

Even though several articles of the Constitution were cited in the various petitions submitted to the Supreme Court, the Court decided to grant “leave to proceed” on the basis of two articles

12. (1) All persons are equal before the law and are entitled to the equal protection of the law.

14. (1)(e) Every citizen is entitled to 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;

The jurisdiction of the Court and the liability of persons held liable was that of #126. (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 recognized by Chapter III or Chapter IV.

As the judgment noted on p. 64

Several Petitioners have moved this Court in its fundamental rights jurisdiction invoking just and equitable remedies against some of the Respondents for what they plead as circumstances of inaction. It is only when the executive or administrative action or inaction gives rise to an infringement of a fundamental right, liability is predicated under Article 126 of the Constitution and the range of Respondents against whom declarations of infringement of fundamental rights are sought includes Maithripala Sirisena who held the office of the President in 2019, Hemasiri Fernando, the then Secretary to the Ministry of Defence, Pujith Jayasundera, the then Inspector General of Police (IGP), Sisira Mendis, the Chief of National Intelligence (CNI) and Nilantha Jayawardena [the then Director, State Intelligence Service (SIS)], to name but a few. The Petitioners who allege inaction against these Respondents and attribute the Easter Sunday Blasts to the Respondents range from the President, Bar Association of Sri Lanka and 4 others (SC/FR/ Application No.195/2019), to several others who have filed similar public interest litigation and some who have suffered personal tragedies themselves. The Petitioners include an Attorney-at-law who sustained grievous injuries in the blast and a father who lost his children, while they were engaged in their religious worship at St. Anthony’s Church, Kochchikade. This judgment will uniformly apply to all these applications namely SC/FR/163/19,SC/FR/165/19, 65 SC/FR/166/19, SC/FR/184/19, SC/FR/188/19, SC/FR/191/19,SC/FR/193/19, SC/FR/195/19, SC/FR/196/19, SC/FR/197/19, SC/FR/198/19, and SC/FR/293/19.

Equality Before the Law: The concept of dēmokratía, a composite of demos (people) and kratos (power) or kratein (rule), denotes the rule of the people, was developed in political philosophy (Plato, Aristotle) and practiced in the Greek, notably the Athenian, polis, characterized by membership (including only male citizens of age), autonomy, and equality before the law.  Where approaches to equality are most substantive—in that the substance of gender hierarchy is identified and addressed in the text—constitutional provisions may look like Colombia’s Article 13 which, after providing for equality before the law and prohibiting discrimination ‘on the basis of gender’, states: 

The state will promote the conditions necessary in order that equality may be real and effective and will adopt measures in favor of groups which are discriminated against or marginalized. The state will especially protect those individuals who on account of their economic, physical, or mental condition are in obviously vulnerable circumstances and will sanction any abuse or ill-treatment perpetrated against them. 

As this language suggests, whether or not affirmatively acting to produce sex equality is distinguishable from prohibition of discrimination is (again) further derivative of whether the model of inequality is one of sameness and difference, in which case the distinction holds, or of hierarchy, specifically domination and subordination, in which case there is no such distinction. Failing to act to end subordination and enforcing subordination both maintain dominance and disadvantage, hence is simply discriminatory.

By labeling certain individuals as members, citizenship offers, however, more than just a juridical, legal status and the promise of equality before the law. It also opens up a host of rights, opportunities, and privileges for those who count as full members. Citizenship also has the potential to play a significant role in societal struggles for recognition and inclusion by those once excluded because it bears the moral and legal force to make “a claim to be accepted as full members of the society” hold firm.

Freedom of Religion: The formulation of freedom of religion and conscience as an individual right stems partly from placing religious choices in individual conscience, and partly from the fact that strong, privileged claims against the state are formulated most successfully in the language of rights. While concerns of free exercise of religion may prevail in the regulation of religion, considerations related to the collective aspects of religious exercise and historical traditions in matters of church-state relations continue to play a role in the regulatory area.   By entertaining the petition under article 14 (1) (e), in Court presumes state protection to the free exercise of religion and religious assembly.   

Carltona Doctrine

One of the important principles that functioned in the judgment was the Carltona Doctrine, in the face of attempts to pass the buck. The interviews of important government officials and politicians show this tendency and it was also found in the affidavits submitted to Court, which the Court rejected.  In Sri Lanka the case of Lalit Weeratunga, Secretary to the President and Anusha Palpita, Director General TRC is well known (2014). The ex-President,  Mahinda Rajapaksa has admitted he had ordered the Sil distribution after the case was determined.  The case is said to have been called 82 times (according to the newspapers) and non-intervention of the ex-President before the determination by the court of record cannot be condoned. The two have been subsequently acquitted.    

The doctrine simply stated is that actions performed by officials are considered actions performed by the minister in charge.   Individual ministerial responsibility is a constitutional convention that a cabinet minister bears the ultimate responsibility for the actions of their ministry or department. In 1954 in which the Minister of Agriculture, Thomas Dugdale, resigned, despite an inquiry suggesting that all mistakes were made within his department without his knowledge and in some cases due to deliberate deceit by civil servants. In 1982, Lord Carrington (then Foreign Secretary) and two other Foreign Office ministers resigned shortly after the invasion of the Falkland Islands. Later official reviews stated that, although there had been misjudgments within the Foreign Office, no responsibility attached to any individual within the government. This is not an iron rule, but is the general convention. The minister cannot wash his hands of the liability of wrongs and certainly not, if the wrongs have been done at his behest.  

Thus at p. 87-88

We hold that Nilantha Jayawardena was under an obligation to report to the Minister of Defence who was the President of the country. Therefore, the assertions in the affidavits of both Maithripala Sirisena and Nilantha Jayawardena are misstatements of the long held constitutional principle that the departments and institutions in his charge under a Minister are equidistant and co-ordinate. Therefore, the fictitious distinctions that both the former President and Director, SIS are making in their affidavits are artificial and have no legal or constitutional basis. The distinction is selectively made for reasons best known to the deponents of the two affidavits.

An identical attempt was sought to be made to perpetuate this misconception by the contention advanced by the Senior Additional Solicitor General that the Carltona doctrine would apply only in the case of the Secretary of Defence, whilst there was a total absence of any reference of the applicability of this principle in the case of Director, SIS or the IGP. The distilled essence of the Carltona principle is that it applies equally to all the responsible officers of a Ministry and thus it applies to Nilantha Jayawardena with the same vigor as it does to Hemasiri Fernando and Pujith Jayasundera. The general constitutional principle enunciated by Lord Greene in Carltona Ltd v Commissioner of Works has the effect that acts done by officials in the exercise of Ministerial functions are to be treated as the Minister’s own acts regardless of whether these acts are done personally by the Minister himself or by a Junior Minister or departmental officials. The Carltona doctrine does not involve any question of agency or delegation but rather the idea of the official as alter ego of the Minister; the official’s decision is seen to be the Minister’s decision. The application of the aforesaid constitutional principle to the facts of the case would boil down to just this proposition. The former President had assigned to himself a number of duties and 3 (1943) 2 All ER 560 88 functions by way of the Gazette notification and had also named departments to perform those duties and functions. The Carltona is to the effect that he need not personally perform those functions and duties. There is an implied delegation that his responsible officials heading the Departments can perform those functions and duties on his behalf. Thus the Secretary, Defence, Chief of National Intelligence, Inspector General of Police and Director, SIS can perform those functions on his behalf and they are not treated as agents but rather they are conceived as his alter ego. In other words, the performance of these officials is treated as the performance of the Minister. It does not mean that these officials, particularly senior officials and heads of departments in the case, can choose not to perform the functions and duties because Article 52 (2) of the Constitution places the supervision of performance on the Secretary subject to the direction and control of the Minister. The common law constitutional principle is added on by the accretion of the constitutional supervision imposed on both the Minister and the Secretary, Defence who is vested with national security not only by the Constitution but also by subordinate legislation published in the Gazette. The alter egos are obligated to perform and if they perform the acts, they are akin to performance of the acts by the Minister.

The Minister remains the constant watchdog of his departments and any failure of supervision that results in a violation of fundamental rights will amount to a dereliction of duty on the part of the Minister…..

Recognition OF Delict Under Public Law 

There have been many cases canvassed in the Supreme Court for the violation of Human Rights under #126 of the Constitution. A chart in Dinesha Samaratne, Judicial Protection of Fundamental Rights in Sri Lanka: State of Human Rights 2018 (Colombo 2020), p. 110 is as follows;

Several of them have been under #12 as has been in the present instance as well. (see chart, ibid., p. 111):

But as far as I know the compensation granted has been rather minimal (cf. S.C. F.R. No: 138/2007 where 1 Million was sought but 120,000 granted and 30,000 as costs). Yet there is a recognition of delictual liability as at p. 108

Justice Mark Fernando proceeded to link the constitutional remedy and the delict remedy. He went on to hold that the delictual liability provides a basis for awarding compensation against the State according to the ordinary common law principles of vicarious liability in delict. He drew on the concept of vicarious liability in delict to determine the liability of the State under the Constitution to pay compensation to the victim of a violation. Justice Fernando famously said12 “The principles whereby an employer or principal is to be made responsible for the act of his employee or agent have not been laid down by the Constitution and there must be determined by reference to other (statutory or common law) principles of law..” It is apparent that Justice Mark Fernando had in mind constitutional delicts and this Court agrees that such principles (statutory or common law) could be engrafted onto public law remedies to determine liability

At p. 109 the Court notes

It is quite clear that that the enormity of the risk was so great and the potential injury was so serious that a reasonable man placed in the position of the respondents whose omissions we have referred to above would have acted but the respondents did not. So even on the basis of delictual principles infusing Article 126 adjudication, the respondents we have alluded to become liable for infringement of the fundamental rights of the Petitioners.

State Liability 

At p. 114

As regards state liability for the infringements we would like to observe that by putting the lives and liberty of common citizens at risk, the Respondents caused the possible collapse of public order and of the rule of law and it cannot be denied that it entailed the potential to destroy the faith of citizens in its state and erode its legitimacy. Large scale destruction, disruption and consequential violence can threaten a country’s social fabric, endanger national unity and destroy prospects for economic growth and development. If there is a failure of public order, it is because of the inadequacies of the branches of government and we need to address them holistically in order to change things for the better. A human being cries out for justice when he feels that the insensible act has crucified his personal liberty and family. That warrants grant of compensation under the public law remedy against the state as well. We are absolutely conscious that compensation was decided upon by the State to be paid to the victims Right to life.

At p 117

There is another basis through which state liability is predicated. Though leave was not granted under Article 13(4) of the Constitution, this Article has been declared by previous dicta of this Court to recognize right to life. “No person shall be punished with death or imprisonment except by order of a competent Court, made in accordance with 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”.

Conclusion

This judgment, in my opinion, is significant having been issued by a seven judge bench and therefore, carrying great weight.  The basis of the decision is not unusual (#12 equality under the law), but what is significant is the principle of liability (Carltona Doctrine) and the award of delictual compensation as a dimension of public law is significant. If this can be pursued then several cases of fundamental rights can be filed with a demand for delictual compensation. On anecdotal evidence it is my impression that such rights that are being hindered – as the right to public gatherings, protests etc. (e.g. the recent cases reported in the newspapers of two women processing to Colombo from Moratuwa being harassed; cf. also Sri Lanka: Heightened Crackdown on Dissent | Human Rights Watch (hrw.org))  as well as death or serious injury resulting in police custody can be filed with compensation.  Perhaps under the Carltona Doctrine, the possibility of holding the minister in charge of the department as liable can also be pursued. If this possibility has been opened up by the present judgment, then it is a very positive development and can prevent many overzealous enforcers of the law from violating human rights and being held to pay out of their personal funds. Can the Minister of Defence say “I am not arresting anyone. It is the police who are doing it”? I did not write to the District Secretaries asking them to desist from accepting deposits from candidates to the Local Government elections. My secretary did it? The Carltona Doctrine will not allow it and the legal fraternity should learn to exploit it to the full.  Sri Lanka is among the 42 nations (out of 193) blacklisted by the United Nations for the violation of human rights (Sunday Times, 9 October 2022). And, in my opinion, that situation is getting worse by the day. The executive seems to inveigle itself and control all the branches of government, the judiciary is our only hope and let us hope it will not fail us in this hour of need. Quoting the great ancient Greek Philosopher Plato, the Chief Justice Pakistan, Iftikhar Muhammad Chaudhr said (2013) “Where the law is subject to some other authority and has none of its own, the collapse of the state, is not far off; but if law is the master of the government and the government is its slave, then the situation is full of promises and men enjoy all the blessings that the Gods shower on a state”.