011-SLLR-SLLR-2007-V-1-HAPUTHANTIRIGE-AND-OTHERS-v.-ATTORNEY-GENERAL.pdf
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Haputhantirige and others v
Attorney General
101
HAPUTHANTIRIGE AND OTHERSv
ATTORNEY GENERAL
SUPREME COURT '
SARATH N. SILVA, C.JDISSANAYAKE..J.
SOMAWANSA..J.
SC FR 10,11,12, 13/07MARCH 14, 15, 2007
Fundamental rights-Constitution Art 12(1), Art 29, Art 126 (4) – 13thAmendment – Grade 1 admissions to National Schools – Circular arbitraryunequal and capricious – National Policy -Affirmed by Cabinet of Ministers?-Classification – 'Royster formulation – National Education Commission Act 19of 1991 – S2 – Education Ordinance.
The petitioners in all the applications allege infringement in respect of therefusal to admit the several children named in the petition to Grade 1 of therespective National Schools. The allegations are related to unequal, arbitraryand capricious application of the Circular. The scheme of the Circular is tostate the National Policy for admission of student to schools. The circular alsostates that the National Policy has been affirmed by the Cabinet of Ministers.
Held:
Quarere
"It is stated in paragraph 1.0 that the National Policy has been approved by theCabinet of Ministers and reference is made to a letter dated 25.5.2006 of theSecretary to the Cabinet of Ministers, however it is noted that the Circular itselfis dated two days prior – this by itself renders it doubtful whether in fact theCabinet of Ministers considered a National Policy on school admission asclaimed in the Circular.
The principle of equality acquires a functional dimension as thefundamental right to equality guaranteed by Art 12(1) sets out thepositive element of the right that all persons are equal before thelaw, and guarantees "the equal protection of the law" and the bar
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against discrimination on grounds ot race, religion, language, caste,sex political opinion or place ot birth – the safeguards that assumeequality before the law.
Taken in the context of the Republican principle of equality and thefundamental guarantee thereof the phrase the law in Art 12 has tobe interpreted in a wider connotation than the term law and withinlaw in Article 170 to encompass any binding process of legislation.
The guarantee of the right of equality in Art 12 should extend to anybinding process of legislation laid down by the executive or theadministrative which affects in its application.
The law in its primary sense is contained in the EducationOrdinance, but the Ordinance has not been amended and theelaborate system of regulations has fallen into disuse, and there isno law that is operative as regards National Schools or for thatmatter in regard to any School. Education, being the foremostresponsibility of the Government has been operating for a long timein a legal vaccum.
The impugned Circular does not have of the general characteristicsthat, pertain to policy, it has a classification of 7 categories, from afunctional perspective it is the binding process of legislation laiddown by the executive as regards the matter of admission togovernment schools.
Per S.N. Silva, C.J.
"Both from the perspective of the application of the equal protection of the lawguaranteed by Art 12 (1) and from the perspective of national policy, theobjective of any binding process of regulation applicable to admissions ofstudents to schools should be that it assures to all students equal access toeducation".
The classification in the impugned Circular is not based on thesuitability and the need of particular child to resume education in aNational School or any other State School. It is based on whollyextraneous considerations and the suitability and the need of theparticular student to receive education in the school is notascertained in the process nor is there any method and criteriaspecified to ascertain such matters. The system of weightedmarking contained in the Circular consequently defeats theobjective of providing equal access to education.
The impugned Circular is inconsistent with the fundamental right toequality before the law and equal protection of the law guaranteedby Art 12(1), in so far it relates to the admission of students to Grade1 of national/other school to which the Circular has been madeapplicable.
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Section 2 of the National Education Commission Act 19 of 1991empowers the President to declare from time to time the NationalEducational Policy which shall be conformed to by all authoritiesand institutions responsible for education in all its aspects. Thepolicy has to be formulated on the recommendation and advice ofthe Commission.
APPLICATION under Art 126 of the Constitution.
Cases referred to
Gulf Colarado and Santa Railway Co. v Ethis – (1897) -165 US 150 165
Royster Guano C v Commonwealth of Virginia – 1920 – 253 US 412 at415
Brown v Board of Education Topika – 347 US 483
Wijedasa Rajapakse PC with Rasika Dissanayake and Gamini Hettiarachchi
for peririoners
Nuwan Peiris for 19th and 30th respondents
Sanjay Rajaratnam DSG for 2 – 8th and 10th – 12 respondents
Cur.adv.vuit.
March 29, 2007SARATH N SILVA, C.J.
The petitioners in all the application have been granted leave 01to proceed on the alleged infringement of their fundamental rightsguaranteed by Article 12 (1) of the Constitution. The infringementsthey allege are in respect of the refusal to admit the several childrennamed in the petitions to Grade 1 of the respective National School.
Admission to Grade I in Government school have resulted in alarge number of applications being filed each year in this Courtalleging infringement of the fundamental rights guaranteed by Article12(1) and also in the Court of Appeal for writs of certiorari andmandamus. These matters have been generally dealt with as being 10urgent since the children on whose behalf the jurisdiction of the Courthave been invoked are denied schooling and require relief withoutdelay. With the intervention of Court administrative relief has beengranted in many of the cases by admitting the children to theparticular school concerned or to an alternative school.
The allegations have related to unequal, arbitrary andcapricious application of the relevant circulars resulting in less
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suited children securing admission to the detriment of the childrenwho have been thereby compelled to invoke the jurisdiction ofCourts. Quite apart from the thrust and parry of allegations andcounter allegations, the underlying cause of this pervasive maladyis the ever increasing demand for admission to leading schools inColombo and other principal cities, administratively designated asNational Schools within the purview of the Central Government asdistinct from other schools within the purview of Provincial Councilsand, the limited and number of places in such schools. Plainly, it isa situation of demand out stripping by far the availability of places.The response of the authorities to this classic situation of a grossmismatch in supply and demand has been to narrow down, throughan intricate system of criteria contained in circulars (that would beexamined hereafter), the area that would feed a particular schooldescribed in the Sinhala Circular as "ooood eoJio gc^caa" "Thefeeder area" of the leading school have become preposterouslynarrow to be as low as 600 meters for D.S Senanayake Vidyalayalocated between Bullers Road and Gregory’s Road in Colombo 7and 1000 meters for Ananda College abutting Maradana Road, inColombo 10. It is probable that none of the children admitted livewithin this narrow official “feeder area". If the Officials andparticularly the principals of the schools stay outside the gates atcommencement and close of school hours, they would see that the"feeder" buses and vans, that transport school children are from asfar out as Gampaha, Nittambuwa, Negombo and Kalutara. Theupshot is the nightmare of school time traffic which disrupts allother activity in the city. The reality of the faulty process that wehave to address from a legal perspective was pithily captured in aneditorial comment of a leading newspaper early this month asfollows:
"That, the education sector is in a total mess becomesmanifestly clear, year in year out from the brouhaha over theGrade One admissions. If the objective of education is toproduce good citizens, the opposite of that happens in thiscountry. Children are trained to be liars from the verybeginning of their schooling. Parents forge bundles ofdocuments to "prove" that they live within the stipulateddistance from the schools of their choice and children aretrained to memorize and utter blatant lies to cover up that
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crime at the interviews, where they are debriefed by teachersand principals to check whether their parents are lying! In acountry where children are trained to lie at a very tender age,it is not surprising that more and more people want to enterpolitics! How can the Ministry of Education, which cannotdeal with at least a child’s school admission properly, handlehis or her education efficiently thereafter?"
Notwithstanding virulent criticism, the authorities havecontinued in the same way allowing matters to be resolved in Court.Recourse to Court has increased over the years to reach aremarkably high figure this year. Often, when leave to proceed isgranted the authorities agree to the admission of the childrenconcerned rendering it unnecessary to proceed with the matterfurther. In view of the persistent allegations of infringements it wasdecided that number of cases be grouped together and heard ontwo dates by this Bench.
With the assistance of counsel, including counsel of theAttorney General’s Department, we have been able tocomprehensively examine the relevant provisions of the impugnedCircular and the ramifications of applying them….
The lead cases in which pleadings are complete relate toSujatha Vidyalaya, Matara (S.C.F.R 10-13 of 2007) Mr. WijyadasaRajapakse, President’s Counsel who appeared for the petitionerspresented submissions on a two fold basis, viz:
That the application of the provisions of the Circular to therelevant facts by the Respondents has been arbitrary andcapricious, resulting in infringements of the fundamentalrights guaranteed to the Petitioners by Article 12(1) of theConstitution.
That the classifications and criteria in the Circularapplicable to the admission to Grade I are per seunreasonable and cannot be rationally related to theobject of providing equal access to education.
President’s Counsel strenuously submitted that the object of
free education provided by the State is not to favour
particular groups by reserving the best facilities to pre-
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identified categories such as children of past pupils, andbrothers and sisters of those already in a particular school.
Such reservations do not pertain to the suitability of the childfor admission and are in any event inconsistent with thecharacter and purpose of a National School.
The facts relevant to the four applications in first group typifythe complaints of alleged violation that are based on a combinationof unreasonable and vague criteria and the arbitrary application ioo •thereof. The petitioners in the four cases made applications for theadmission of their respective children to the Sujatha Vidyalaya,Matara, on the basis of Circular No. 20 of 2006 dated 23.05.2006issued by the 10th respondent, being the Secretary of Ministry ofEducation, titled “Admission of Children, to Schools” (PI). TheCircular is available only in Sinhala.
The petitioners admittedly reside within close proximity of theSujatha Vidyalaya and their common complaint is that on theelaborate system of assigning marks which would be consideredlater, they infact received sufficient marks to secure admission of notheir children. However, 30 other children, residing further awaysecured admission depriving the petitioners’ children of their dueplaces in view of a decision of the respondents (stemming from adecision of the Acting Director of Education, as contained indocument 6R4) to assign 15 marks to each child who was born atthe Matara Hospital. As a result the petitioners children fell belowthe cut off point giving an undue advantage to children who wereborn in the Matara Hospital.
The case of arbitrary exercise of power in applying the Circularwas unanswerable and the respondents agreed as an interim 120measure to admit the children to school. However, this would be inaddition to the 30 children who secured admission due to thefortuitous circumstance that they were born in the Matara Hospitaland not in any other Hospital. That would have ordinarily concludedthe case but for the decision to deal with the alleged infringementsvis-a-vis, the Circular in a comprehensive manner.
In this background I would examine the impugned Circular(P1) issued by the Secretary Ministry of education, referred toabove. The Circular has several parts including that relevant to
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these applications dealing with the admissions to Grade I. Thescheme of the Circular is to state in Part I, the national policy foradmission of students to schools. It is stated in paragraph 1.0 thatthis national policy has been affirmed by the Cabinet of Ministersand reference is made to letter dated 25.5.2006 of the Secretary tothe Cabinet of Ministers. However, it is noted that the Circular itselfis dated two days prior, that is on 23.05.2006. This by itself rendersit doubtful whether infact the Cabinet of Ministers considered anational policy on school admission as claimed in the Circular. Bethat as it may, similar Circulars appear to have been issued even inthe previous years and the Circular is examined on the premise thatit is an act of the executive.
The national policy in respect of the different levels ofadmission to schools as contained in the Part I, is elaborated in theother parts of Circular and the schemes of marking are containedin the schedules at the end.
Admissions to Government schools are effected mainly at twolevels
They are;
Admission to grade I being the subject matter of thisapplication; and
Admission to Grade VI based entirely on an island-widescholarship examination;
The second level of admission at Grade VI rarely result incomplaints, since it is based on the marks assigned at an examinationconducted by the Department of Examinations. Thus, a merit basedscheme is less prone to allegations of abuse provided it is properlystructured to ensure transparency. The main submission of thePresident’s Counsel is that the scheme for Grade I as contained in theCircular is totally devoid of a merit criteria in the sense of the suitabilityof a child for admission to particular school and is based onextraneous criteria such as ownership/occupation of property: therecord of the parent as a past pupil (when both parent have been pastpupils marks being attributed in respect of the parent having the betterrecord); and the record of any brother or sister of the applicant child,already in that school. The extent to which the suitability of the child isexcluded from the process is seen from the fact that no markswhatsoever are attributable on that account.
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Counsel submitted that the resources of the State being publicfunds are spent largely on National School and that it is essentialthat the facilities in such schools being limited, the suitability of the i?ochild should be the principal criteria with a "feeder area" beingrealistically fixed with reference to Divisional Secretaries areas.That, the assignment of quotas to past pupils and brothers andsisters is an unreasonable classification which negates equalaccess to education being be the objective of the law.
In the light of these submissions being far reaching in theirambit, I would at first examine the specific classification that aremade in Circular P1 in respect of admission to Grade I. The circularclassifies seven categories specifying a percentage of admission
for each as follows:iso
Householders children40%
Children of the past-pupils of the school25%
Brothers and sisters of the children receiving
education in the school15%
Children of the public officers who havereceived transfers and taken residencein the area in which the school is located
and the children of MP’s and Provincial Councilorswho have to live outside their area of residence 06%
Children of persons who are not householders 07% i*>
Children of persons who are directly
involved in institutions connected with schooleducation05%
Children of persons who have returned from abroad 02%
In addition to the foregoing, clause 1:1 (d) provides that theinitial selection should be of 34 student per class and 5 places bereserved for children of members of the Armed Forces and thePolice who are engaged in service in operational areas. One placeis reserved for the children of persons who get transferred after theinitial admissions on the basis of exigencies of state service. Thus 200a total of 40 student is specified for each class.
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Clause 5:1 specifies the qualifications for admission from thehouseholders category for 40% of the vacancies. It is stated thatchildren permanently resident close to the school would qualify onthe basis of residence of their parents or their grand parents wherethe parents are living in the same house.
5:1 (b) provides that residence should be for six years or moreand to gain priority following criteria is set out. They are
ownership of the place of residence;
evidence of permanent residence and the period;210
distance to the school from the place of residence;
5:1 (c) states that evidence of ownership would be:
Title deed;
Householders list;
Permit granted by the National Housing Authority;
Title deed of the grand parents if the residence is the grandparents house
A certificate issued by the head of the Institution asregards residence in official quarters;
Any other applicable document220
Schedule II contains a scheme of marking in reference toparticular documents.
A maximum of 50 marks will be assigned as follows:
a document confirming the ownership25
birth certificate of the child(the relevant
address to be included)15
certificate of the Grama Sevaka confirmed
by the Divisional Secretary05
electricity, water, telephone and the like03
any other documents02230
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Clause 2 of the schedule assigns further total of 150 marks forthe period of residence in the particular place. If the residence isover 6 years 150 marks, if it is 5-6 years 90 marks and 4-5 years30 marks.
Clause 3 gives the marks on the basis of distance from theschool. The distance is calculated from the office of the primarysection of the school. If it is calculated from the office of the primarysection of the school. If it is within 500 meters – 60 marks, and thenumber of marks get reduced proportionately as it goes further andwhere the distance is more than 3000 meters only 5 marks will be 240given.
President’s Counsel made serious criticism of this entirescheme. He submitted that the document as to residence being themost important on which the marks as to distance and so on arealso calculated, is specified as a title deed. He submitted that thepersons before whom the documents are produced are notqualified, in any way to decide on the validity or otherwise of a titledeed. The validity of a deed and the title conveyed thereby is avexed question in civil litigation. It appears that the only matterlooked into is the fact of registration. Under our law, registration 250does not attribute title to land is at best a claim to priority, which hasto be considered in the light of the other registered documents. Wehave to yet move into a system of title registration.
Counsel accordingly submitted that this has left open anavenue for fabrication of deeds, especially in urban areas. Hefurther contended that in any event one could have ownership ofproperty that is not reflected in a title deed. In a situation whereproperty is inherited from a parent who has died and thetestamentary proceedings are not concluded there would be noregistered document. Similarly, an instance of co-ownership or of 260prescriptive possession cannot be proved by a title deed asrequired in Clause I (i) of the schedule. Such a person would falloutside the entire scheme of marking. Thus the scheme favours theperson who secures a title deed by hook or crook and may wellexclude the genuine owner. The editorial comment of “bundles” offorged documents stems from these requirements in the scheme ofmarking.
Haputhantirige and others v
SCAttorney General (Sarath N. Silva, CJ)
It was revealed that several criminal prosecutions have beeninstituted against applicant parents; a sad ending to an endeavourto secure the admission of a child to a school of choice.
The extent of the prevarication of documents that take place isreflected in Supreme Court case No. 101/2005 which relates to anapplication for admission to Ananda College. The parent hadobtained a lease for premises bearing No. 142 Temple Road,Colombo 10. These premises are said to be located 50 metersaway from Ananda College. The document P8 produced in thatcase is the electoral list in respect of the said premises. The nameof the applicant parent who is a member of the Armed Forcesappears as chief householder. The second name is that of themother. The third is an entirely different name of a medical officer.The fourth is a lecturer of a University who appears to be the wifeof the third person. The fifth and sixth are persons bearing differentnames who have no occupation. The sixth is described as aCoordinating officer. The eighth is described as being selfemployed. There is yet another, making a total of nine. The modusoperandi appears to be that each year the particular applicantshifts to the top position and present chief occupant who has madeuse of that position drops down. Ironically, the owner who haspurported to give the lease is also included as one of theoccupants. Hence, there is no change in the actual possession ofthe premises.
Being located 50 meters away from Ananda College the place'is of high demand. Quite apart from fraudulent school admissions thissituation presents a serious danger to the exercise of the franchiseand the electoral process.
The next basis of assigning marks to a householder is on thebirth certificate of the child concerned. This requirement ismisconceived since the child is not given an address in the birthcertificate. The particulars given of the mother and father in the birthcertificate are places of their birth. It appears that the authoritieshave had in mind, the address of the informant specified in thereverse of the birth certificate who could be any person furnishing theinformation to the Registrar of Birth. In respect of birth at the MataraHospital, in place of name of the informant the rubber stamp of theDMO had been placed. In these circumstances the authorities
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decided to assign the full 15 marks to children bom in the MataraHospital. It is inexplicable that the acting Director herself who issupposed to be in charge of subject has given instructions on such anonsensical basis. No person with an iota of common sense wouldgive such an instruction. In view of this atrocious mistake 30 children 3iosecured admission.
President’s Counsel then took on category of past pupils. Hesubmitted that in terms of schedule 03 of the Circular marks aregiven on the basis of the period spent by the parents in the school;the examinations passed, performance including participation inmusical band and so on. The significant point raised by Counsel inthat where a parent had gained admission to the school pursuant tothe year 5 scholarship examination only 2 marks are assigned. Aclear instance of discrimination in respect of parents, long stayerspreferred as against scholars. Whereas when parent had entered at 320grade I and continued 13 marks are assigned. Counsel submittedthat it is irrational to assign marks on the basis of the period theparent has spent in school and his achievements both as a studentand in extra curricular activities.
There is indeed merit in the submission of Counsel and whenone peruses the scheme it appears as if though the scheme isdesigned to ascertain the suitability of the parent for re-admission tothe school and not that of the child whose suitability is totally ignored.
Similarly, in the other category of brothers and sisters marks areassigned in respect of achievements of the brother and sister already 330in school. In respect of both categories residence is also a criteriawhich has to be decided as in relation to householders. That schemeas revealed in the preceding analysis is totally flawed.
As regards the category of “transfers" Counsel submitted thatMembers of Parliament and Provincial Councillors are givenmaximum of 20 marks although they are not in a transferable service.
It has to be noted that upon election they should remain to serve theirelectorates and not move to urban centers and be removed from thearea where their attention is most needed. If the elected membersremain in their particular areas those schools will develop and the 340demand for leading school would gradually diminish. The scheme istotally misguided in respect of elected representatives.
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President’s Counsel submitted that reserving of 2% of thevacancies for persons who return from abroad results in anincongruity where places may have to be kept vacant for suchpersons denying facilities to children who have had continuedresidence within the country. These vacancies are later filled in asurreptitious way. It appears that there is no end to the list. Themaximum of 40 for a class is exceeded by far and at times a wholenew class is established to accommodate those who are favoured. 350
Since the challenge to the validity of the Circular has farreaching implications, I have to examine the grounds urged fromthe ambit of the fundamental right to equality guaranteed by Article12(1) of the Constitution.
The Preamble of the Constitution states the “immutablerepublican principles” on which it is based as being“Representative Democracy” and the assurance to all people“Freedom, Equality, Justice, Fundamental Human Rights and theindependence of the judiciary”. These principles partake ofDemocracy and Socialism being the components of the name of 360the Republic.
The principle of equality acquires a functional dimension asthe fundamental right to equality guaranteed by Article 12 of theConstitution. Sub Article (I) sets out the positive element of theright, that “all persons are equal before the law”. The otherprovision in Sub Article (1) which guarantees “the equal protectionof law” and the bar against discrimination on grounds of race,religion, language, caste, sex, political opinion or place of birthcontained in Sub-Article (2), are the safeguards that assureequality before the law. Taken in the context of the republican 370principle of equality and the functional guarantee thereof, thephrase "the law” as appearing in Article 12 has to be interpreted ina wider connotation than the terms "law" and "written law" definedin Article 170 of the Constitution, to encompass any bindingprocess of regulation. Since the jurisdiction of this Court in terms ofArticle 126 and the right as contained in Article 17 to invoke suchjurisdiction is in relation to executive or administrative action, theguarantee of the right to equality in Article 12 should extend to anybinding process of regulation laid down by the executive or theadministration which affects persons in its application.380
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It is necessary at this point to ascertain “the lawu, including anybinding process of regulation, from the perspective of which thealleged infringement has to be judged.
The law in its primary sense of an Ordinance or Enactment ofthe legislature relating to Education, is contained in the EducationOrdinance originally proclaimed in 1939, prior to the granting ofindependence. A perusal of the provisions of the Ordinance revealsthat these provisions have fallen into disuse. A similar observationhas to be made as regards the exhaustive regulations that havebeen made under the Ordinance. They are contained in nearly 200 390pages in the Volume of Subsidiary Legislation.
I have to digress at this point to state albeit briefly thesequence of events in which the Education Ordinance as amendedand the Regulations made thereunder fell into disuse.
The Ordinance established the Department of Education asthe Central Authority for Education which functioned under thegeneral direction and control of the Minister. There was a CentralAdvisory Council to advise the Minister and Local AdvisoryCommittees in different parts of the country at the level ofMunicipal Councils, Urban Councils, Town Councils and Village 400Councils. These Advisory Committees looked into the educationalneeds of the particular areas. The Government functioned as theregulator of education and standards were laid down andenforced through a system of School Inspectors, Directors andthe like. The schools were separately managed by religious andnon religious bodies and received assistance from theGovernment. Hence there were mainly the "Assisted Schools"and a few Private Schools. The education system thus structuredincluding the Central Colleges became a model for the wholeRegion and the country achieved the much acclaimed high levels 410of literacy and of academic excellence. There have been drasticchanges in the system commencing from 1961 when themanagement of "Assisted Schools" was taken over by theGovernment. Thereby, the Government became the manager ofvirtually all schools and shed its role as the regulator andsupervisor. The well structured law and the comprehensiveRegulations became mere pages in the Statute books.
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Then, we come to the 13th Amendment to the Constitutionwhich inter alia, provided for the devolution of power to ProvincialCouncils. In terms of section 3 of List 1 in the 9th Schedule to the13th Amendment, “Education and Educational Services" to theextent set out in Appendix III are devolved to Provincial Councils.Section 1 of Appendix III states that the provision of facilities to allState schools, other than specified schools shall be theresponsibility of the Provincial Council. It is there provided thatspecified schools will be "National Schools". The concept of"National Schools" derives solely from its single reference to it inAppendix III. Almost all leading Government schools have beendeclared as being "National Schools". The Education Ordinancehas not been amended to provide for the newly emerged situationand there is no law that is operative as regards National Schools orfor that matter, as far as I could discover in regard to any school.
The alarming situation is that Education being the foremostresponsibility of Government has been operating for a long periodof time in a legal vacuum. Where there is no law it is anarchy thatprevails. In this vacuum shorn of the carefully structured regulatoryand supervisory system, with Advisory Councils at different levels,self styled experts exercising the freedom of the wild ass havedangerously tampered with the process, to bring about chaos. Theresultant tragedy is revealed in a survey carried out by the NationalEducation Commission, according to which reportedly 18% of theGrade VI students are illiterate. It is unnecessary for the purpose ofthis judgment to delve into the other alarming revelations of thissurvey.
It appears that the impugned Circular P1 itself is referable tothe opening line of List II (Reserve List) in the 13th Amendmentwhich states that "National Policy on all subjects and functions" willcome within the Central Government. Hence we have a situationwhere the law as contained in the Education Ordinance and theelaborate system of regulations having fallen into disuse and thematter of admission to schools being regulated by a Circularpurporting to be a statement of National Policy. It is plain to see thatthe Circular does not have any of the general characteristics thatpertain to policy. It has a classification of 7 categories, a scheme ofweighted marking and a related identification of documents that
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could be received in evidence. From a functional perspective it isthe binding process of regulation laid down by the executive asregards the matter of admission to Government Schools. On thereasoning stated above it would constitute "the law" within thepurview of Article 12(1) of the Constitution in reference to which the 48alleged infringement of the right to equality has to be judged.
I have now to revert to the right to equality guaranteed byArticle 12(1) and the basis on which its content would be applied tojudge an alleged infringement. Dr. Wickremaratne (FundamentalRights in Sri Lanka – 2006 Second Edition at page 286) citing fromthe renowned exponent of Socialism, Harold Laski (A Grammer ofPolitics), C.G. Weeramantry and the Judgment of Brewer J., sumsup the concept of equality and the manner in which the equalprotection of law applies, as follows:
* Equality, as Laski stated, does not mean identity of 47*treatment. 'There can be no ultimate identity of treatment solong as men are different in want and capacity and need'.
Men are unequal in strength, talent and other attributes.
While some of these are natural, others are referable to thesociety in which they live. Some are born with advantages.
Other factors and combinations of factors may favour somepeople and place others at a disadvantage. To quoteWeeramantry:
“As the myriads of constituent units of a society keep thusshifting their positions relative to each other, absolute 48i£equality among (men) even in one characteristic of for amoment of time is patently an impossibility. Far greater is theimpossibility of preserving general equality for any period,however short. A permanent state of equality is only theremotest dream."
Equal protection does not mean that all persons are to betreated alike in all circumstances. It means that persons whoare similarly circumstanced must be similarly treated. TheState is however permitted to make laws that are unequaland to take unequal administrative action when dealing with 49(£persons who are placed in different circumstances andsituations. Thus the State has the right to classify persons
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and place those who are substantially similar under the samerule of law while applying different rules to persons differentlysituated. "A classification should not be irrational or arbitrary.
It must be reasonable and based on some real andsubstantial distinction, which bears a reasonable and justrelation to the act in respect of which the classification isproposed and can never be made arbitrary and without anysuch basis."500
The requirement stated by Brewer J., in the case of GulfColarado and Santa Railway Co v Ethi&) cited above, has beensubsequently stated as the "Basic standard" to be satisfied in apermissible clarification. The classic formulation of the “basicstandard" is that stated in the case of Royster Guano Co. vCommonwealth of Virginia0 at 415. It reads as follows:
" classification must be reasonable, not arbitrary, and
must rest upon some ground of difference having a fair andsubstantial relation to the object of the legislation, so that allpersons similarly circumstanced shall be treated alike." 510
Therefore in applying what has been described as the "Roysterformulation" to test the validity of classification we have to first lookat the object of the law and then consider whether the classificationcould be reasonably related to achieve the object. As noted abovethe law as contained in the Ordinance and Regulations have falleninto disuse. The constitutional scheme for devolution of power in thesubject of education has been defeated to a great extent by recourseto a single reference to “National Schools” in Appendix III. We areconfronted with a jurisprudential paradox of a Circular purporting tobe a statement of National Policy being is the only binding process of 520regulation as regards admission of students to Government Schools.
The Circular has been issued in the exercise of the power reservedto the Government to formulate "National Policy" on all subjects andfunctions.
There is no provision in the 13th Amendment that defines theambit of Government action that would come within the broadphrase, 'National Policy’.
Maxwell on The Interpretation of Statutes, under the heading"An Act is to be regarded as a whole" (12th Ed. Page 58) states that
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“one of the safest guides to constnjction of sweeping 530
general words which are hard to apply in their full literalsense is to examine other words of like import in the sameinstrument, and see what limitations must be imposed onthem"
The relevant principle of interpretation with particularreference to the interpretation of provisions in a Constitution is setout in Bindra's Interpretation of Statutes – 9th Ed. page 1182 asfollows:
“ The Constitution must be considered as a whole, and so asto give effect, as far as possible, to all its provisions. It is an 540established canon of constitutional construction that not oneprovision of the Constitution is to be separated from all theothers, and considered alone, but that all the provisionsbearing upon a particular subject are to be brought into viewand to be so interpreted as to effectuate the great purpose ofthe instrument. *
In applying these principles of interpretation I am of the viewthat the broad phase "National Policy" appearing at the top List IIshould be interpreted together with the relevant provisions inChapter VI of the Constitution which contains the "Directive 550Principles of State Policy."
The limitation in Article 29 which states that the provisions ofChapter VI are not justiciable would not in my view be a bar againstthe use of these provisions to interpret other provisions of theConstitution. Article 27 of Chapter VI lays down that the 'DirectivePrinciples of State Policy' contained therein shall guide"Parliament, the President and the Cabinet of Ministers in theenactment of laws and the governance of Sri Lanka for theestablishment of a just and free society." Hence the restrictionadded at the end in Article 29 should not detract from the noble 560aspirations and objectives contained in the Directive Principles ofState Policy, lest they become as illusive as a mirage in the desert.
As regards education, the policy objective is stated in section27(2) (h) as follows:
“The state is pledged to establish in Sri Lanka a democraticsocialist society, the objectives of which include –
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(h) the complete eradication of illiteracy and the assurance to allpersons of the right to universal and equal access to education atall levels. “
This objective as to equal access to education has gainedrecognition in section 3(2) of the Tertiary and Vocation EducationAct No. 20 of 1990.
Equal opportunity in the matter of education was held by theSupreme Court of the United States to be a requirement of theEqual Protection Clause (similar to Article 12) of the FourteenthAmendment to the Constitution. In Brown v Board of EducationTopikaW – Chief Justice Warren delivering the opinion of the Courtstated as follows: (at 493):
"Today, education is perhaps the most important function ofState and local governments. Compulsory school attendancelaws and the great expenditures for education bothdemonstrate our recognition of the importance of educationto our democratic society. It is required in the performance ofour most basic responsibilities, even service in the armedforces. It is the very foundation of good citizenship. Today itis a principal instrument in awakening the child to culturalvalues, in preparing him for later professional training, and inhelping him to adjust normally to his environment. In thesedays, it is doubtful that any child may reasonably beexpected to succeed in life if he is denied the opportunity ofan education. Such an opportunity, where the State hasundertaken to provide it, is a right which must be madeavailable to all on equal terms."
Hence both from the perspective of the application of theequal protection of the law guaranteed by Article 12(1) and from theperspective of national policy, the objective of any binding processof regulation applicable to admission of students to schools shouldbe that it assures to all students equal access to education.
On the reasoning stated above the question before this Courtnarrows down to whether the classifications of students foradmission in the impugned Circular P1 and the criteria laid down
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therein can be reasonably related to the objective of providingequal access to education.
The preceeding analysis reveals that the classification in PI isnot based on the suitability and the need of a particular child toreceive education in a national school or any other State School.
The classification is based on wholly extraneous considerationssuch as the residence of the parents to be ascertained from theownership of property; whether the parent is a past pupil and if so 6iofor what period and his achievements; whether the child to beadmitted has a brother or sister in the school and if so the brother’sor sister's achievements or whether the parent has beentransferred in the manner that has been referred to above. Thesuitability and the need of the particular student to receiveeducation in the school is not ascertained in the process, nor isthere any method and criteria specified to ascertain such matters.
Similarly, the system of weighted marking referred to above ascontained in the Circular completely defeats the objective ofproviding equal access to education.620
For the reasons stated above we hold that the Circular P1applicable in the matter of admission of students is inconsistentwith the fundamental right to equality before the law and the equalprotection of the law guaranteed by Article 12(1) of the Constitution,in so far as it relates to the admission of students to Grade I ofnational schools and other schools to which the Circular has beenmade applicable.
We are mindful of the resultant position, that there would be nobinding process of regulation in the matter of admission of studentsto Grade I. This would not normally be the consequence of a 630declaration of invalidity of executive or administrative action sincefresh action can be taken under the applicable law. In this instance,as noted above law and written law relevant to education havefallen into disuse resulting in a legal vacuum.
Since the jurisdiction of this Court in terms of Article 126(4) ofthe Constitution empowers the court to make "directives as it mayseem just and equitable in the circumstances," we consider itappropriate to indicate a course of action which in our view mayalleviate the situation that has come to an impasse.
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The authorities have failed over the decades that elapsed toprovide an effective to legal machinery to manage, regulate andsupervise education. The Ministry of Education appears to haveformulated P1 as the purported National policy outside theframework of the law, which fact by itself would suffice to declareinvalid. Section 2 of the National Education Commission Act No. 19of 1991, empowers the President to declare from time to time thenational Education Policy which shall be conformed to by allauthorities and institutions responsible for education in all itsaspects. The policy is formulated on the recommendations andadvice of the Commission and in terms of section 2(2) includes,inter alia:
methods and criteria for admission of students"
This in our view is the proper guideline for the formulation of apolicy. The Ministry fell into error by laying down classifications,quotas and a system of weighted marking being elementscompletely antithetic to the guarantee of equality before the lawwhereas the focus should be on appropriate methods and criteriathat would apply in the process of effecting admissions.
In the situation that has arisen we are of the view that it isappropriate for immediate action to be taken in terms of theNational Education Commission Act for the formulation of a policysetting out methods and criteria for admission of students.
Counsel submitted that leading private schools in Colombohave adopted different methods to be applied in the admission ofstudents. The methods have been in certain instances structured toinclude interviews with parents and children and a suitable testwhich should be faced by the children seeking admission. Thesetests not being written tests are based on the methodology that isadopted in pre-school education. It has now been established byclear scientific evidence that all the elements that go to developcharacter and personality are in place by the time a child reachesthe age of 5 years. Detailed studies have been done in the UnitedKingdom in this regard under a separate Ministry in charge of thesubject of Children. In the circumstances there is a wealth ofexperience, both in this country and outside on the basis of whicha suitable methodology and criteria could be adopted for admissionof children particularly to Grade 1.
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The National Education Commission may if it is consideredappropriate seek the assistance of child psychologists andcompetent pre-school educators in formulating the appropriate 680methods and criteria. The process of interviews and tests to beincluded have to be transparent and all safeguards should be putin place to minimize allegations of favourism.
The present situation has resulted in a gross abuse of theprocess of admission of students. In the circumstances it would benecessary to devise a new process in which the participation ofauthorities who have brought about the tragic situation be excludedand the process to be administered directly under the purview ofthe President as provided in the National Education Commission 690Act.
The demand for education in leading schools in Colombo andother urban centers result from the lack of appropriate facilities inthe outer areas. In the circumstances the national policy shouldalso encompass a suitable program to develop a minimum of twoschools in each Divisional Secretariat Division so that with thepassage of time these schools would reach the same standard asthat of national schools.
The final matter to be addressed is in relation to the otherapplications pending before this Court and the Court of Appeal.Further litigation is not warranted in view of the finding of illegality 700as to the Circular P1 in respect of admission to Grade 1. In thecircumstances suitable administrative relief should be granted tothe persons affected. Since the availability of places in schools is avariable factor which cannot be addressed in Court, a Committeemay be established to ascertain the grievances of the persons whohave already invoked the jurisdiction of Court and to grantadministrative relief, if it is established that any student concernedis suitable for admission to a particular school. This process wouldbe available only to persons who have already invoked thejurisdiction of Court considering the administrative difficulties that 710would otherwise arise if the floodgates are opened at this stage foranother series of applications for relief in the matter.
Considering the directions that are made in this Judgment, theRegistrar of this Court is directed to send a copy of this judgment
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to the Secretary, to His Excellency the President to facilitate actionas stated above.
The national policy on school admission to be formulated maybe submitted to Court for the policy to be examined from theperspective of the fundamental right to equality before the law andthe equal protection of the law guaranteed by Article 12(1) of the 720Constitution.
S.C.(FR) Applications 10 to 13/2007 are allowed and thepetitioners are granted the declaration that their fundamental rightsguaranteed by Article 12(1) of the Constitution have been infringedby executive and administrative action.
It is further declared that the Circular marked P1 isinconsistent with Article 12(1) of the Constitution and is invalid andof no force or avail in law in respect of admission of students toGrade 1 in the schools to which the Circular is addressed.
No costs.730
DISSANAYAKE, J.-I agree.
SOMAWANSA, J.-I agree.
Relief granted.
National Policy on school admission to be formulated andsubmitted to the Supreme Court