045-SLLR-1984-V1-VISUVALINGAM-AND-OTHERS-v.-LIYANAGE-AND-OTHERS.pdf
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VisuvaUngam v. Liyanage
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VISUVALINGAM AND OTHERS
v.
LIYANAGE AND OTHERS
SUPREME COURT
SHARVANANDA, A.C.J., RANASINGHE, J. AND RODRIGO, J.
S.C. APPLICATION No. 74 OF 83.
NOVEMBER 22. 23. 30, 1983, DECEMBER 12. 13. 1983, AND FEBRUARY 6 AND10. 1984.
Fundamental Rights – Sealing of office of newspaper – Prohibition of the printing,publishing or distribution of newspaper and of the use of the printing press – Regulation14 of Emergency Regulations of 18.10.83 – Violation of fundamental rights underArticles 12 (1). 12 (21. 14 (1) (a) and 14 (1) (g) of the Constitution – Application forleave to proceed under Article 126 (2) of the Constitution.
The 1 st to 4th petitioners who are described as citizens of Sri Lanka along with the 5thpetitioner which is a Company of which the first four petitioners (together with threeothers) are the only members and the only directors complained that the 1strespondent by Order of 18.11.1983 purported to have been made under the
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Emergency Regulation 14 (3). prohibited tne printing, publishing or distribution of thenewspaper called 'Saturday Review' of which the 5th petitioner-company waspublisher or the using of the printing press where this newspaper was printed for anypurpose whatever. The 2nd respondent purporting to act under this Order had sealedthe office of the said ‘Saturday Review'. These acts the petitioners claimed constitute aviolation of their fundamental rights embodied in Articles 12(1), 12 (2), 14 (1) (a) and14 (1) (p) of the Constitution.
Earlier the same petitioners along with two others had filed application No.- 47 of 1983against the same respondents claiming relief on the basis of similar acts committed bythe 1 st and 2nd respondents on the basis of an earlier Emergency Regulation 14 (3)then in force and whose terms were identical with those of the Emergency Regulationsin force during the events which led to the present application. In this earlier applicationthe petitioners had claimed that there had been a violation of their fundamental rightsembodied in Article 14 (1), 14 (1) (a) and 14 (1) (g) of the Constitution. While thatapplication was pending the same petitioners filed application No. 53/83 this timeclaiming additionally, infringement of fundamental rights under Articles 12(1) and12 (2) by reason of a fresh Order on the same lines as before made by the 1 strespondent under Regulation 14 (3) of the Emergency Regulations renewed in identicalterms as in the earlier month, and similar action taken on it by the 2nd respondent.While both these applications were pending a third application No. 61/83 was filed byfour of the earlier petitioners along with the Company joined as the 5th petitioneralleging the same type of violations as in application No. 53/83 in respect of a similarOrder, in the subsequent month made by the 1st respondent under the renewedEmergency Regulations and action taken on it by the 2nd respondent, similar to whatconstituted the basis of the two earlier applications. All three applications were heardtogether by a Bench of five Judges. By a majority decision the question of locus standi'was decided against the petitioners in all these cases and all five Judges unanimouslyheld that the 1 st respondent had justified the order made by him.in view of the identity of the grievances alleged in the present petition with those allegedin the earlier cases and the identity of the Order made by the 1 st respondent with theOrders impugned in them and the unanimous finding of the Bench of five Judges thatthe 1st respondent had justified his Orders, leave to proceed with the instantapplication was refused.
Per Ranasinghe. J : 'It (the decision in the previous cases) is a decision which, though itmay not be binding on this Court, must nevertheless weigh heavily with this Bench inconsidering the petitioners' application for leave, in terms of Article 126 (2) of theConstitution, to proceed.*
Cases referred to
(1 j Dr. Neville Fernando and others v. Liyanage and others. S. C. ApplicationNo. 116/82. S.C. Minutes of 14.12.82.
(21 Dr. Neville Fernando and others v. Liyanage and others. S.C. Application No. 134of 1982. S.C. Minutes of 7.2.1983.
Ram Krishna Dalmia v. Justice Tendolkar, AIR 1958 S.C. 538.
State of West Bengal v. Anwar All Sarkar, AIR 1952 S.C. 75.
($) U. P. Electric Co v. State of U.P.. AIR 1970 S.C. 21.
(6) Dr. N. R. W. Perera et ai v. The University Grants Commission. S.C. ApplicationNo. 57 of 1980. S.C. Minutes of4.8.1980.
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APPLICATION for leave to proceed under Article 126 of the Constitution.
S. Nadesan, Q.C., with S. Mahenthiran and S. M Raaza for petitioners.
Cur. adv. vult.
February 27, 1984.
RANASINGHE, J.
The 1 st to the 4th petitioners, who are all said to be citizens of SriLanka and are also said to be, together with .K. Kandasamy, S.Sivanayagam and A. Nallatamby, the only members and the onlydirectors of the 5th petitioner-company which was, at all timesmaterial to this application, the publisher of a weekly newspaper called“Saturday Review', have filed this application on 16.11.83 to have theOrder marked P 2, which prohibits the printing, publishing ordistribution of the said newspaper "Saturday Review' for a period ofone month and also directs that the printing press, in which the saidnewspaper was printed, be not used for any purpose whatever duringthe said period of one month, and which said Order the 1strespondent is stated to have made on 18.10.83, in terms of theprovisions of Regulation 14 of the Emergency Regulationspromulgated on 18.10.83. and, in pursuance of which said Order theoffice of the said "Saturday Review' is said to have been sealed by the2nd respondent – declared null and void and/or to be in contraventionof the Constitution for the reason that the said Order, and thesubsequent acts of the 2nd respondent taken on the basis of the saidOrder, constitute a violation of the fundamental rights of thepetitioners embodied in Articles 12(1), 12(2) 14(1) (a), and14 (1) {g) of the Constitution, and also because they have been mademala fide, in abuse of the powers conferred by the said EmergencyRegulation (14) (3) for an ulterior purpose : for damages, by way ofcompensation in respect of the said prohibition, and the closure.
Prior to the filing of this petition,he 1st to 5th petitioners had, alongwith the aforementioned S. Sivanayagam and A. Nallatamby (as the2nd and 4th petitioners respectively) filed in this Court, on 22.7.83,an application, numbered 47 of 1983, against the same threerespondents as are referred to in this application, for similar reliefagainst two similar Orders (marked P 2 dated 1.7.83 and P 3, dated18.7.83) made by the 1st respondent. Certified copies of the petitionand the affidavit filed by the petitioners, and the affidavit filed by the1st respondent in the said application No. 47. of 83 Tiave beenproduced by the petitioners along with the petition filed in theseproceedings marked P 4, P 3 and P 6 respectively. The facts and
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circumstances set out save and except the reference to the impositionof pre-censorship and the promulgation of the Sixth Amendment andthe relief claimed except in regard to damages in P 4, and the factsand circumstances pleaded and the relief claimed in the petition filed inth6se proceedings are identical. The ground upon which relief wasclaimed in the said application No. 47/83 was, however, slightlydifferent; for, there the only fundamental rights, which were said tohave been violated by the impugned Order and by the acts of therespondents, were stated to be those set out in Article 14 (1} (a) and14 (1} (g) of the Constitution. No complaint of any infringment of anyof the fundamental rights, set out in Article 12 (1) or 12 (2) of theConstitution, was made in those proceedings.
Whilst the aforesaid application No. 47 of 83 was still pendingbefore this Court, the seven petitioners, who had filed the applicationbearing No. 47 of 83 and amongst whom were the five petitionersnow before this Court, filed, on 25.8.83. an application, which wasnumbered 53 of 83, against the selfsame respondents, as in thepresent application, claiming upon the same basis, the selfsamerelief as is now claimed by the petitioners in this application, against asimilar Order and similar acts said to have been made and done by thesaid respondents. The order complained of in the said application wasan order dated 18.8.83, which was also claimed by the respondentsto have been made under Emergency Regulations similar to those saidto be relied on by the respondents in both application No. 47 of 83and the present application.
Thereafter, whilst the aforesaid applications bearing Nos. 47 of 83and 53 of 83 were both still pending before this Court, the fivepetitioners filed, on 13.10.83, another application which wasnumbered 61 of 83, also against the three respondents, claiming thesame relief as prayed for by them in the present petition, in respect ofan Order (which was marked P 1) similar to the Order, P 2, and whichwas said to have been made by the 1 st respondent on 18.9.83. Thefacts and circumstances relied on, the relief claimed and the basisupon which the relief is claimed in the said application No. 61 of 83•are all the same as. those upon which the petitioners not only hadcome before this Court earlier in the aforesaid application No. 53 ot83 but have also founded the present application.
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When the application No. 47 of 83 was taken up for hearing beforethis Court, of consent the two applications bearing Nos. 53 of 83 and61 of 83 were also taken up for hearing along with it. and it wasagreed that all three applications be argued together and that thesubmissions in respect of the three applications be conside^dtogether, and the issues arising in the three said applications be alldetermined in the course of the judgment to be delivered in one of thethree said applications.
Learned Queen's Counsel, who appears for the petitioners in thisapplication, also appeared for the petitioners in all three earlierapplications Nos. 47, 53 and 61 of 83 referred to above ; and, in thecourse of his submissions made to this Court in respect of the threesaid earlier applications, maintained that, even if the 5thpetitioner-company (which was the-7th petitioner in the tvyoapplications, numbered 47 of 83, and 53 of 83, and the 5th petitionerin application No. 61 of 83) has no status to complain of aninfringement of the fundamental rights set out in Article 14 of theConstitution, yet the 1st to 4th petitioners (who were, as set .outearlier, the 1st, 3rd, 5th, 6th petitioners respectively in bothapplications Nos. 47 of 83 and 53 of 83. and the 1st to 4thpetitioners respectively in application No. 61 of 83) who areshareholders of the said 5th petitioner-company can, as citizens of theRepublic of Sri Lanka, complain of an infringement of the fundamentalrights guaranteed to them by Article 14(1) (a) and 14 (1) (g) of theConstitution : that the two judgments of Sharvananda, J. in the twocases, Dr. Neville Fernando et af. v. D. J. F. D. Liyanage et at A1) andDr. Neville Fernando v. Liyanage and Others (2) have been wronglydecided : that the Orders complained of (marked P 2 and P 3 inapplication No. 47 of 83 dated-18.8.83 and in application No. 53 .of 83 and marked P 1 in application No. 61 of 83) are also bad in lawfor the several reasons set out, more particularly in paragraphs 19,21, 22, 23, 24. 25, 32, 33, 34, 36. in the petition P4 filed inapplication No. 47 of 83. All those grounds so relied on have beenadopted and reiterated subsequently not only in the aforesaidapplications numbered 53 of 83, and 61 of 83, but also in the presentapplication.
The five-member Bench of this Court, by its judgment delivered on
held by a majority decision, that the petitioners in the threeapplications Nos : 47 of 83, 53 of 83 and 61 of 83 respectivelycannot, in law, have and maintain any one of the said applications onthe basis of an infringement of any of the fundamental rights set out in
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Articles 14(1) (a), 14 (1) (g) and or in Article 12 (2) of theConstitution : and, by a unanimous decision, that none, of theimpugned Orders made by the 1st respondent in the three saidapplications marked P2 and P3 in applications No.47 of 83, and inNa 53/83 and P1 in application No. 61 of 83 – is bad in law, and thatnot one of the said Orders constitutes an infringement of any of thefundamental rights relied on by the said petitioners in the saidapplications. Thus, although the Bench was divided on the question oflaw – whether the petitioners, in the said applications, who areshare-holders of the 7th petitioner-company (the 5thpetitioner-company in application No. 61 of 83 and also in the presentapplication) and include among them the 1 st to the 4th petitioners inthe present application, could maintain an application under theprovisions of Article 126(1) of the Constitution in respect of aninfringement of the'fundamental rights set out in Article 14 (1) (a) and14(1) (fir) and also Article 12 (2), of the Constitution – the membersof the Bench were nevertheless unanimously of the opinion that,having regard to the relevant facts and circumstances – which are thesame as those relied on by the petitioners in the presentapplication – the impugned Orders made by the 1 st respondent – theonly difference between them and the Order PI impugned in thisapplication being the periods of time during which each is to be inoperation – were valid and did not constitute an infringement of any ofthe fundamental rights relied on by the petitioners. The fundamentalrights so relied on by the petitioners in every one of the three saidapplications were, as already stated – with the exception ofapplication No. 47 of 83 wherein the fundamental right set out inArticle 12 was not relied on – the same as those relied on once againby the petitioners in the present application. The view taken by themembers of the said Bench in regard to the facts was unanimous.
Learned Queen's Counsel appearing for the petitioners, urged thefollowing grounds in support of his motion for leave to proceed with(the present application filed by the petitioners
that the plea of discrimination, based upon an infringement ofthe petitioners' fundamental right under Article 12(1) of theConstitution, put forward in two of the earlier applications, viz.,applications bearing Nos. 53 of 83 and 61 of 83 (which havebeen referred to above) has not been considered by the earlierBench,, and that, though he (learned Queen's Counsel)"expected a judgment", he "didn't get it', and that 'no order hasbeen made in respect of this matter";
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that in regard to the questions of fact that arose for
consideration in the three said earlier applications the earlier
Bench has misdirected itself in that –
it has failed to consider several matters which had beenstrenuously urged on behalf of the petitioners as showingquite clearly that the 1 st respondent had not. in making thesaid impugned Orders, addressed his mind to the proprietyand the necessity of exercising the powers vested in him bythe Emergency Regulations before he proceeded to matethe said impugned Orders – viz., the statement of the 1strespondent that he was not aware of the composition ofthe directorate of the 5th petitioner-company, of those whowere responsible for the publication of the newspaper'Saturday Review" and their 'who's who", and of theobjectives and the policy of the newspaper 'SaturdayReview', or of the situation of the printing press . that theprovisions of the Emergency Regulation 14(3), underwhich the 1st respondent claims to have made the saidimpugned Orders, have, except for a few insignificantvariations, been reproduced verbatim in the said impugnedOrders; that the Order P2, which was one of the twoOrders, which were the subject-matter of application No.47 of 83, had been made on 1.7.83 fo be in operation fora period of one month when the said Regulation itself wasdue to expire on 18.7.83 ; that, in pursuance of P2 andP3, the printing press, in which the "Saturday Review" wasin fact being published was not sealed but what was in factsealed was the office of the newspaper ‘Saturday Review";that, as the said Emergency Regulations created veryserious offences and imposed severe punishments, itwould be most unlikely that those responsible for thepublication of a newspaper of the standing of the "SaturdayReview" would risk committing any such offence : that inany event the 1st Respondent has, even though othereffective courses of action were open to him to control andcontain any errant newspapers, most unreasonably andunjustifiably chosen to impose upon tle 'Saturday Review"the heaviest and the most oppressive punishment of them;all:
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it has. in the judgment of Soza, J. arrived at findings whichare not supported by any evidence, viz., that terroristgroups count in their ranks a sizeable percentage of Varsityeducated intelligent young men and women especially inJaffna : that they (terrorist group) employ very modernsophisticated techniques which often baffle the lawenforcement authorities : that it must be expected that thispaper has a circulation among the educated youth bent onwrecking the establishment: that it is reasonable to expectthat the 1st respondent was aware of what was beingpublished in this newspaper over a period of time ; and thatthe affidavit of the 1 st respondent, P6. has not been read in'the way it should have been read. ,
Learned Queen's Counsel for the petitioners strongly contended that,if he were given the opportunity, he could show that the aforesaidstatements made in the said judgment were not supported by anyevidence, that there is no evidence to show either that Varsitystudents are to be found in the ranks of the terrorists, or that theterrorists use modern sophisticated techniques which baffle the lawenforcement authorities, and that the Varsity students of today do nothave a knowledge of English and that the contents of a newspapersuch as the "Saturday Review'are not meant for the Varsity students oftoday, who far from being able to understand its contents, would noteven be able to pronounce most of the words contained in it, and thatthe tone and the standard set by the 'Saturday Review’ are suchthat it is meant only for the "elite" of the two races – Sinhala andTamil.
The contents of several issues of the 'Saturday Review"- publishedat the very early stages, and also both shortly before and after thedeclaration of the State of Emergency, and up to the time of the first ofthe said impugned Orders – were read at length to this Bench – justas he had done earlier in the course of the submissions made by himto the earlier Bench at the hearing of the three applications – bylearned Queen's Counsel for the purpose of showing, in the words ofleacned Queen's Counsel himself, that: ‘my grievances have not beenlooked into, and adjudicated upon by Your Lordships' Court*: "A newBench will consider the facts and circumstances anew" : “ That somejudges of the Supreme Court have expressed a certain view doesn'tconcern me": he .has "made out that there is something for YourLordships’ Court to look into*.
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In supporting the motion for leave, learned Queen’s Counsel deelt atlength with the fundamental right embodied in Article 12 (1) of theConstitution, citing several passages from Seervai on ConstitutionalLaw of India Vol. 1 (2nd edt) Chap. 9 page 203 et seq, wherein {heteamed author deals with Article 14 of the Indian Constitution whichcorresponds to Article 12 of our Constitution ; and he alSo cited TWOIndian authorities : Ramkrishna Dalmia v. Justice Tendolkar (3) andState of West Bengal v. Anwar Ali Sarkar (4). It has however to benoted that neither the citation from Seervai, nor the Indian cases nowcited were cited by learned Queen's Counsel to the earlier Bench atthe hearing of the three aforesaid earlier applications. For that matter,not a single authority was cited on the earlier occasion in relation toArticle 12 (1) of the Constitution. The plea of an infringement of thefundamental right set out in Article 12 (1) of the Constitution, which isnow embodied in paragragh 17 of the present petition, and supportedin paragraph 17 of the affidavit of the 4th petitioner, though embodiedin paragraphs 5 of the petitions P7 and P9 filed in application Nos. 53of 83, and 61 of 83 respectively, and referred to in the writtensubmissions filed along with each of the said petitions, was not,however, dealt with in court before the earlier Bench by learnedQueen's Counsel for the petitioner. Not a single submission – eitheron the facts or on the law – was made orally in Court in support of thesaid plea. The only reference, made in Court orally by learned Queen'sCounsel, to Article 12(1) was made on 2.11.83 when he read outthe contents of the petitions and affidavits filed by the petitioners inApplication Nos. 53 of 83 and 61 of 83. My own recollection inregard to this matter is borne out not only by my own notes of thesubmissions made by learned Queen's Counsel at that hearing, butalso by the confirmation received by me from everyone of the otherfour judges who constituted the earlier Bench – Wanasundera, J.,Rodrigo, J. and also Ratwatte, J. and Soza, J. (both of whom havesince retired). It also finds confirmation – if further confirmation benecessary – in the very documents tendered to court, at the hearing ofthe three aforesaid earlier applications, by learned Queen's Counselhimself as embodying the oral submissions made by him to the Bertchwhich heard the said applications. The said documents are : ‘Notes oforal submissions by S. Nadesan, Q.C.* tendered on 8.9.83,consisting of twenty pages numbered 1 to *2.0 ; ‘Notes of oralsubmissions' consisting of ten pages numbered 1 to 9, tendered on
: ‘Notes of oral submissions of Reply by S. Nadesan, Q.C.*
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tendered to court pn 9,11.83 and consisting of 7 pages numbered 1to.7 : 'Notes of oral submissions of Reply continued, by S. Nadesan.Q.C ’ .assisting of fourteen pages 1 to 14. In not one of thesedocuments is there a single reference to, or a single submissionrelating to any infringement of the fundamental right embodied inArticle 12 (1) of the Constitution. Besides, there is not a singleaverment in either of the petitions marked P7 and P9, – or for thatmatter even in the petition filed in the present application – setting outthe facts and circumstances which show how the petitioners havebeen treated unequally and have been unlawfully discriminatedagainst, and upon which said acts the complaint of the infringement ofthe fundamental right of equality and equal protection of the law isfounded. There is only a bare assertion in paragraph 17 of the presentpetition – and in the corresponding paragraphs in P7 and P9 – of aninfringement, without a statement of the facts and circumstanceswhich have given rise to such complaint. In the absence of any suchexpress averments no burden is cast upon the 1st respondent tosatisfy court that his acts do not amount to any discrimination againstthe petitioners and that they do not constitute any unequal treatmentmeted out to the petitioners. A bare assertion that a particular act ofthe 1 st respondent violates the fundamental right of the petitionersembodied in Article 12(1) of the Constitution does not, by itself, castan onus on the 1st respondent to justify his act on the basis of apermissible rational classification or on any other ground recognized bylaw. The petitioners, who put forward a complaint of denial of equaltreatment, must in the first instance, place before court facts andcircumstances which show that, as between the petitioners andothers similarly placed, they have been unlawfully discriminatedagainst and subject to unequal treatment to their prejudice – vide :UP. Electric Co. v. State ofU.P. (5) and Dr. N. R. W. Perera era/, v.The University Grants Commission (6).
The admission by the 1 st respondent, in paragraph 3 of his affidavit.P8, of the averments in paragraph 8 of the petition P7 does notconstitute an admission that other newspapers, which are similar tothe 'Saturday Review', have been differently treated by the 1strespondent. What is set out in paragraph 8 of P7 is that severalnewspaper 'critical of the Government* are being published. Theposition of the 1 st respondent in regard to the 'Saturday Review",however, is that it is such a newspaper as is set out in paragraphs 15and 16 of his affidavit P 6, viz : a political newspaper advocating the
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cause of dividing the country and the establishment of a State knownas Eelam for the Tamils in the North and East of the country,eschewing democratic processes, negotiations and campaigns easedon non-violence as a means of resolving the problems facing theTamils of Sri Lanka, and openly encouraging the adoption of force alhdterrorism as the only means. This position is reiterated in paragraph 7of P 8.
Even so. Soza J. has, in the judgment with which 1 have concurred,considered the plea of an infringement of the fundamental right set outin Article 12 (1 j of the Constitution.-plea under 12 (2) being affectedby the decision in respect of 14 (1). Having taken note of the 1strespondents averment that, apart from the "Saturday Review",another newspaper in Jaffna had been similarly dealt with, Soza. J.has, at page 23 of the said judgment, expressed the view that -'The first respondent seeks to justify his action, and in thecircumstances of these cases It is preferable to examine thequestion whether the first respondent has established his plea ofjustification rather than to embark upon an analysis of Article 12 (1)with a view to ascertaining whether there are grounds for acomplaint under that Article.'
Thereafter, upon an examination of all the relevant facts andcircumstances, it was held-not only by Soza, J. but unanimously by allthe judges – that the fundamental rights of the 1 st to the 6thpetitioners, amongst whom were-the 1st to the 4th petitioners in thisapplication, have not been violated by any of the impugned Ordersmade by the 1 st respondent. Wanasundera, J. expressed the viewthat, although the publishers of the 'Saturday Review' had tried to liveup to the objects and ideals set out in the brochure Pi, and the'Saturday Review', judged by journalistic standards, appeared to be acut above the average newspaper, there had unfortunately also creptinto the 'Saturday Review' material that must necessarily attract theattention of the authorities at a time when there are unsettledconditions in the country as today: and that, while some EmergencyRegulations permit the authorities to apply a system of graduatedpressure and restrictions on an errant newspaper, yet such provisionsdo not preclude the Competent Authority from directly resorting to theprovisions of Regulation 14(3) in a fit case. The facts andcircumstances relied on by the petitioners, if notHn all three, at least intwo of the three earlier applications and those set out in the presentapplication, are as already set out, identical.
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With regard to the matters set out in sub-paragraph (ii) (a) above,and which have been urged as being relevant to a consideration of thequestions of fact, ,a perusal gf the judgment of Soza, J. shows clearlythat all those factors have received the attention of Soza, J. and havebeen considered in arriving at the conclusion so arrived at therein. Acareful reading of pages 30, 32, 35 and 36 in particular shows quiteclearly that the said grounds, which are urged on behalf of thepetitioners, have'all been dealt with. The views set out in the judgmentmay differ from what learned Queen's Counsel himself put forwardand which he 'expected' to be adopted. What matters is the fact thatthe said circumstances have in fact been considered in arriving at thedecision which has been so arrived at in the said judgment.
With regard to the ground set out in sub-paragraph (ii) (b) above, ona careful consideration of the contents of several issues of the said'Saturday Review", which were produced and referred to by counsel, Ifind myself unable to agree with learned Queen’s Counsel's criticismthat the court has arrived at findings which are not supported byevidence. They do contain material which justify the said findings – inparticular the issues dated 13*2-82, 27.2.82, 14.5.83, 21.5.83 (inregard to the Varsity student’s ability to understand English and the"Saturday Review* being read by the Varsity students), and thosedated 8.1 83. 22.1.83, 29.1.83, 7.5.83, 14.5.83 (in regard to theinvolvement of the Varsity students too), and those dated 8.1.83,22 1 83. 7.5.83 (in regard to the adoption of sophisticatedtechmques which baffle the authorities), and that dated 8.1.83 (inregard to the 1 st respondent having been aware of, over a penod oftime, as to what the 'Saturday Review' was publishing.)
As was posed by learned Queen's Counsel, the question forconsideration by this Bench at this stage, when leave to proceed isbeing sought, is . whether the petitioner has satisfied this Court, uponthe material set out in the petition and affidavit 'that there issomething to be looked into*, and that there is a case forconsideration by this Court. The material set out in the petition and theaffidavit filed by the petitioner in this application would, on the face ofit, have ordinarily been sufficient to put this Court upon inquiry, at anyrate'in regard to the alleged infringement of the fundamental right setout in Article 14 of the Constitution. The petitioners have, however,already come before, this Court on at feast two earlier occasionsmaking the same complaint and praying for the same relief as are setout in the said petition and affidavit; and a Bench of five judges of this
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Court, has, after according to the petitioners, and also therespondents, a full and patient hearing, spread over several days, andafter examining the submissions of the parties unanimously concludedthat there has been no infringement of the petitioners' fundamental.rights by any of the impugned Orders made by the 1st respondent.Even though learned Queen's Counsel submitted that there are 'otherforums interested in this matter', and that the fact 'that some judgesof the Supreme Court have expressed a certain view doesn’t concernme”, this Bench however, is concerned only with this Court; and thefact that five judges of this Court, constituted on a direction of theChief Justice under Article 132 (3) of the Constitution, did, in the saidjudgment delivered on the earlier occasion, reach an unanimousdecision not only upon the same questions of fact as are being onceagain sought to be canvassed in this application but also in regard tothe same relief as is being once again sought to be obtained by thisapplication, is a very relevant matter which can and must be taken intoconsideration by this Bench. It is a decision which, though it may notbe binding on this Court, must nevertheless weigh heavily with thisBench in considering the petitioners' application for leave, in terms ofArticle 126 (2) of the Constitution, to proceed.
On a consideration of all the matters set out above, I am of the viewthat this is not a fit case in which leave ought to be granted by thisCourt under the provisions of Article 126 (2) of the Constitution.
I, therefore, make order accordingly, refusing the petitioners leaveto proceed with this application.
SHARVANANDA, J.-l agree.
RODRIGO, J.
Counsel for the petitioner has exerted himself inordinately insupporting this application for leave to proceed. Notwithstanding hisage. he has been on his feet morning and evening, day in day out.often consecutively, during a period stretching from 22nd November.
1983 to 10th February. 1984. Coming as it does for hearing on-theheels of the judgment given in application No. 47 of 1983 by the sameparties on the same subject matter against the same respondents, (theoccasion for this application being the same Emergency Orderrepeated with a different date to correspond to the monthly renewal ofthe Emergency,) I thought that this matter will be dropped, judgment
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being against the petitioners albeit. It may well be therefore a measureof his conviction in the strength of his cause or correspondingly ameasure of his grievance against the judgment delivered.Presumably the latter, for he complained that I, for instance (being oneof' the members that constituted the earlier Bench) had misdirectedmyself when I observed that Jaffna University students were readersof the paper and therefore subject to its influence, his submissionbeing that the undergraduates are too poorly educated in English tocomprehend the articles in the paper and that we had overlooked amaterial submission based on the discrimination clause – Art12 (1) of the Constitution. Be that as it may it is unfortunate,though, that his view of the law governing these matters both in theprevious application and in this, clouded perhaps by his personalinterest in the matter – he being a member of the ethnic communitythe political causes and grievances of which the paper is alleged toespouse and air respectively – has not commended itself to this Courtin either instance.
It has been unanimously held by the Bench of five Judges that heardthe previous application that the Competent Authority was notunreasonable, though he may have acted differently, in forming theopinion which was his legitimate province that this paper must beclosed as an Emergency measure on the material and informationstated in his affidavit to have been available to him and which wasmade available to us. Though we on this Bench may not be technicallybound by the decision of that Bench, it is an intrepid exercise for usnow to undertake what in all truth is a review of the findings of thatBench. This I am not prepared to do.
The difficulties of Counsel should-disappear if it is appreciated thatEmergency Regulations are law to which the fundamental rightsconstitutionally have to give way. So it is enacted in Art. 15 (7). Thereis no point in harping, as he does on violations of fundamental rights.They take a back seat to the extent the Emergency Regulations takethe front seat. There is no room for both in the front seat. Since theEmergency Regulation in question is not argued to be ultra vires, itmust be given its full effect. An emergency is what the word means. Inthe political storm in iMtich the Competent Authority was appointedand he acted to close the paper a 'crisis of civilisation' had arisen, ftwas notorious that murder and arson were the order of the day in thatpart of the country in which this paper was printed. Cause and effect,action and reaction have lost their threads in a vicious circle. So a
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fireman was appointed in the person of the Competent Authority toput down the blaze. In the process he may have effected unnecessarythough not unreasonable demolitions like the closing of this paperperhaps. But he was the sole judge of what he should do thoughsubject to a supervisory jurisdiction where he is capricious. Authorityfor this proposition has been given in the judgment mentioned. For usto fault him – and we do not – is to handle the Emergency ourselves.It is not, the Constitutional task of the Supreme Court. Counsel,however, would have us make an order to let the 'Saturday Review'carry on regardless. He has read to us every line of the paper in itsseveral issues over selected periods to satisfy us that this paper posedno threat at any time to public security or order but the CompetentAuthority has not shared that assessment or sanguinity of Counsel andwe cannot say that he has been capricious. I would therefore disallowleave to proceed.
Leave to proceed refused.