038-SLLR-SLLR-1999-V-2-JAYASINGHE-AND-OTHERS-v.-R.-S.-JAYARATNE-SECRETERAY-MINISTRY-OF-PUBLIC-A.pdf
SC Jayasinghe and Others v. R. S. Jayaratne, Secretary, Ministry of
Public Administration and Others385
JAYASINGHE AND OTHERS
v.R. S. JAYARATNE, SECRETARY, MINISTRY OF PUBLICADMINISTRATION AND OTHERS
SUPREME COURTFERNANDO, J..
GUNASEKARA, J. ANDWEERASEKERA, J.
S.C. APPLICATION NOS. 770/97, 772/97 AND 798/97JULY 6, 1999.
Fundamental Rights – Reference of an application to the Human RightsCommission – Human Rights Commission Act, No. 21 of 1996 – Powers of theSupreme Court and the duty of the Commission upon a reference made in termsof section 12 of the Act.
The Supreme Court referred three fundamental rights applications to the HumanRights Commission (the Commission) established under the Human RightsCommission of Sri Lanka Act, No. 21 of 1966, in terms of section 12 thereof.The Chairman of the Commission requested clarification from the Court on twomatters.
Section 12 (1) confers powers on the Court to make a reference "in thecourse of a hearing of an application' : does that provision empower theCourt to make a reference only after leave to proceed has been granted?
Section 12 (2) casts a duty on the Commission to 'inquire and report":does that provision require or enable the Commission to express its viewupon the question whether the relief prayed for should be granted?
Held:
Seeking leave to proceed occurs during the 'hearing' of, or the 'inquiring"into, a fundamental rights application, and the Court is empowered to makea reference under section 12 (1) even before the grant of leave to proceed.
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[1999] 2 Sri LR.
While section 12 empowers the Court to refer a matter to the Commission,it is quite dear that the Court cannot delegate its powers and jurisdictionto the Commission, and will not be bound by the findings and views ofthe Commission. The Commission itself cannot delegate its powers to oneor more of its members. The purpose of a reference under section 12is to obtain the benefit of the collective wisdom of all the members ofthe Commission.
Per Fernando, J.
*. . . a request by this Court for the Views* or 'recommendations* of theCommission would be within the scope of the 'inquiry and report* contem-plated by section 12 read with section 11 (e).'
Upon a reference under section 12, the Commission is obliged to inquireinto and submit a report containing the Commission's findings upon thematter referred to it, together with the reasons therefor; also to submit itsviews and recommendations, if so required by the Court; and to take othersteps as it may be directed to take by the Court in terms of section 11(e). Such findings, views and recommendations will not bind either theparties or the Court. (Obitei) The provisions of section 26 (2) of the Actprovides for non disclosure of any document received by or any matteror thing coming to the notice of, the Commission in the course of anyinquiry or investigation under the Act, to any Court. The expression 'Court*in that section does not include the Supreme Court.
APPLICATIONS for infringement of fundamental rights (directions to the HumanRights Commission).
D. S. Wijesinghe, PC with Gayathri Fernando for the petitioners in No. 770/97and No. 772/97.
R. K. W. Goonasekera with Shiranthi Jayatilleke for the petitioner in No. 798/97.Asanga Gunawansa for the respondents.
Cur. adv. vult.
SC Jayasinghe and Others v. R. S. Jayaratne, Secretary, Ministry of
Public Administration and Others (Fernando, J.)387
September 24. 1999.
FERNANDO, J.
Orders were made by this Court in October, 1997, referring thesethree fundamental rights applications to the Human Rights Commission(the Commission) established under the Human Rights Commissionof Sri Lanka Act, No. 21 of 1996, for inquiry and report. Leave toproceed had not been granted. The Commission.submitted a reportdated 28.10.98 from which it was not clear what the findings andrecommendations of the Commission were. On 27.1.99 the Courtcalled for the Commission's findings and recommendations.
Part II of that Act deals with "Powers of Investigation of theCommission", and section 12 provides:
"(1) The Supreme Court may refer any matter arising in thecourse of a hearing of an application made to the SupremeCourt under Article 126 of the Constitution to the Commis-sioner for inquiry and report.
(2) The Commission shall inquire and report to the SupremeCourt on the matters referred to it under subsection (1), withinthe period, if any, specified in such reference."
The Chairman of the Commission by his letter dated 23.2.99requested clarification from this Court on two matters:
Section 12 (1) confers power on this Court to make areference “in the course of a hearing of an application" :does that provision empower this Court to make a referenceonly after leave to proceed has been granted?
Section 12 (2) casts a duty on the Commission to "inquireand report": does that provision require or enable the Com-mission to express its views upon the question whether therelief prayed for should be granted?
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All counsel appearing in these three applications, having previouslymade written submissions, made oral submissions on 6.7.99.
(1) STAGE AT WHICH A REFERENCE MAY BE MADE
A fundamental rights application is in two stages: initially, an exparte request for leave to proceed (at which stage the question fordecision is whether an infringement has been established prima facie),and then, if leave is granted, the determination of all matters arisingin the application after the respondents have been afforded anopportunity of filing pleadings, and both sides have been heard. Whilethe first stage is usually ex parte, there have been more than a fewoccasions on which the Court has heard the Attorney-General, or otherrespondents, even before granting leave.
A verbal distinction is often drawn between those two stages: bydescribing the first as being “for grant of leave" or “for support", andthe second as being “for hearing”, or “for argument”. But, that is notof much assistance in determining whether the phrase “in the courseof a hearing of an application" used in section 12 covers only thestage after the grant of leave.
In my view, the plain meaning of a “hearing", in the context ofadjudication, is a proceeding in the course of which the Court "hears"(or listens to ) the evidence and/or arguments adduced by or on behalfof one party (if it is an ex parte proceeding) or both parties (if it isinter partes)-, and that would usually take place in open Court (and,most exceptionally, in Chambers). When leave to proceed is sought,reference is made to affidavits and documents, and legal argumentsare advanced, and I have no doubt whatever that that constitutes "ahearing" of the application. Although that is only a preliminary (andnot a final) hearing, it is nevertheless a hearing. Further, it seemsto me that section 12 is not intended to be confined to just two stages- of seeking leave, and the subsequent inquiry – but would applyto all other intermediate stages at which a fundamental rightsapplication comes up for consideration in open Court: including, for
SC Jayasinghe and Others v. R. S. Jayaratne, Secretary, Ministry of
Public Administration and Others (Fernando, J.)389
instance, an application for interim relief, or for an order for theproduction of documents, or for the addition or substitution of parties.If at any stage of the proceedings the Court considers that theassistance of the Commission would be useful, section 12 permitsrecourse to it.
The Sinhala text draws no distinction between a "hearing" by thisCourt and an "inquiry" by the Commission: the word "vibhagaya" isused in both instances. This Court can therefore make a referencewhile it is "inquiring" into a fundamental rights application.
! hold that seeking leave to proceed occurs during the “hearing"of, or the "inquiry" into, a fundamental rights application, and that thisCourt is empowered to make a reference under section 12 (1) evenbefore the grant of leave to proceed.
That interpretation gains support from a consideration of the pre-existing practice of this Court (in the context of which section 12 wasintroduced) as well as the provisions of sections 14 and 15 of theAct, to which I must now turn.
Previous practice:
This Court does not grant leave to proceed unless a prima faciecase has been made out. Sometimes counsel who has failed in thatrespect implores the Court nevertheless to grant leave, confidentlyasserting that the material which the respondents themselves willproduce with their objections will prove the petitioner's case. I haveoften pointed out that such a submission recognises that if therespondents file no objections, the petitioner must fail. The invariablepractice of the Court has been to refuse leave if a prima. facie casehas not been made out.
However, there are exceptions to that rule. When it appears tothe Court that a prima facie case has not been made out, due tothe lack of material which seems likely to be forthcoming from official
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or independent sources – to which the petitioner lacks access – theCourt often postpones the decision whether or not to grant leave, andmakes an attempt (in the interests of justice) to obtain that material.This it does, sometimes by asking the Attorney-General to assist asamicus curiae, and sometimes by directing a respondent or a thirdparty to produce documentary evidence. Thus, when petitioners com-plain of torture, unlawful detention, and denial of access to lawyers,the Court may call for the production of medical records from Prisonhospitals, detention orders, and Police reports filed in Magistrate'sCourts, in order to determine whether prima facie violations of Articles11 and 13 have been established. If the Court had narrowly interpretedits power to call for such material, so as to confine it to the stageafter leave had been granted, many a meritorious claim would havefailed for want of evidence which – despite the exercise of duediligence – could not have been obtained without a Court order. Notonly does the grant of a jurisdiction generally carry with it, by necessaryimplication, such powers as are necessary to make that jurisdictioneffective, but in any event the Constitutional jurisdictions of this Courtmust be interpreted broadly rather than narrowly, so that "fundamentalrights shall be respected, secured and advanced" by this Court incompliance with Article 4 (d).
In like manner, I have no doubt that the purpose of a referenceto the Commission under section 12 was to make the fundamentalrights jurisdiction more fruitful and effective. In the absence of wordsof limitation, there is no reason to think that Parliament intended thisCourt to have the benefit of assistance from the Commission onlyafter leave is granted. Section 11 (e) provides, with no hint of anylimitation:
"For the purpose of discharging its functions the Commissionmay exercise any or all of the following powers: . . . (e)take such steps as it may be directed to take by the SupremeCourt, in respect of any matter referred to it by the SupremeCourt; …"
SC Jayasinghe and Others v. R. S. Jayaratne, Secretary, Ministry of
Public Administration and Others (Fernando, J.)391
Likewise, section 28 imposes duties on officials, who arrest ordetain persons, to inform the Commission, and the Commission mayauthorize its agents to visit Police stations, prisons, and places ofdetention. The Commission will thus have valuable contemporaneousinformation about the time of arrest and the places and conditionsof detention, and whether a detainee has fresh injuries or shows signsof ill-treatment. There is no reason to think that Parliament intendedthat this Court should be denied the benefit of such information whenit is considering whether to grant leave to proceed.
Sections 14 and 15:
Section 12 occurs in the same part as sections 14 and 15. Section14 empowers the Commission, on its own motion or on a complaintmade to it, to investigate alleged fundamental rights infringements.Where such investigation discloses an infringement or imminentinfringement by executive or administrative action, the Commission haspower to refer the matter for conciliation or mediation. Where theCommission considers such reference inappropriate, or where anyof the parties object, or where such conciliation or mediation isunsuccessful, the Commission may, under section 15 (3):
“(a) recommend to the appropriate authorities that prosecutionor other proceedings be instituted against the person orpersons infringing such fundamental right;
refer the matter to any court having jurisdiction to hear anddetermine such matter in accordance with such rules of courtas may be prescribed therefor, and within such time as isprovided for invoking the jurisdiction of such Court, by anyperson;
make such recommendations as it may think fit, to theappropriate authority or person or persons concerned, witha view to preventing or remedying such infringement, or thecontinuation of such infringement."
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This Court has sole and exclusive jurisdiction to hear and determineany question relating to the alleged infringement or imminent infringe-ment by executive or administrative action of any fundamental right,and hence it is only to this Court that the Commission can refer amatter under section 15 (3) (b). Our attention was not drawn to anyrelevant regulations or rules of Court which have been made. Whileit is, therefore, not clear how exactly such a reference may be made,how this Court will decide whether to entertain it, and what procedureshould be followed in hearing and determining such matter, what isimportant, for the present purpose, is that the Commission can onlymake a reference to this Court if and when its investigations disclosean infringement or imminent infringement of a fundamental right byexecutive or administrative action. It must, therefore, have evidencebefore it (and sections 18 and 19 make provision for the taking ofevidence), justifying the conclusion that there has been an infringementor that an infringement is imminent. Any reference which it then makeswill necessarily be before the grant of leave to proceed.
Thus, when the Commission makes a reference to this Court itwill inform this Court – before the grant of leave – of the facts foundby the Commission and its conclusions. I cannot discern from the Act,or elsewhere, any principle which would justify a different result whenthe Commission is called upon to make a report to this Court (upona reference under section 12): what possible prejudice or harm couldthere be if the Commission similarly discloses to this Court the factsfound and its conclusions, before this Court grants leave toproceed? If it is suggested that the Court might be “influenced" bythe Commission's report, that will apply equally to a reference by theCommission. Since the Act does not expressly prohibit the makingof a reference by this Court, or the submission of a report by theCommission, until after the grant of leave to proceed, section 12 mustbe interpreted, harmoniously with sections 14 and 15, so as to permita reference before the grant of leave to proceed.
SC Jayasingha and Others v. R. S. Jayaratne, Secretary, Ministry of
Public Administration and Others (Fernando, J.)393
(2) EXPRESSION OF VIEWS BY THE COMMISSION
While section 12 empowers this Court to refer a matter to theCommission, it is quite clear that this Court cannot delegate its powersand jurisdiction to the Commission, and will not be bound by thefindings and views of the Commission.
At the same time, the “inquiry and report" contemplated by section12 is not simply a matter of securing the production of relevantdocuments and the recording of evidence of witnesses; the Commis-sion is not expected merely to conduct an investigation, and to submitits notes of investigation to this Court. Upon a reference I hold thatthe Commission must act in much the same way as upon a complaintunder section 14 – the Commission must analyse the evidence andascertain whether it discloses an infringement or an imminent infringe-ment of a fundamental right by executive or administrative action.
The view that the function of the Commission upon a referenceunder section 12 is not simply to record evidence is supported byanother consideration. Section 2 of the Act establishes the Commissionas a body corporate, which “shaH" consist of five members. It wouldappear that the Commission must act through all its members, becausethe Act makes provision neither for a quorum nor for the delegationof the powers of the Commission to one or more of its members;section 7 only enables the Commission to act notwithstanding avacancy or a defect in the appointment of a member. The purposeof a reference under section 12 was thus to enable this Court to obtainthe benefit of the collective wisdom of all the members of theCommission, and not just its notes of investigation.
Section 15 (3) (b) does not refer to “recommendations”. On theother hand, a reference by this Court may involve some rule or practicewhich a petitioner claims has given rise to the alleged infringement;the Court may wish to have assistance as to the changes which aredesirable and/or feasible. Likewise, the Court may wish to be advisedwhether the grant of the relief sought by the petitioner may give rise
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to anomalies or injustices. In that context, a request by this Courtfor the "views" or "recommendations" of the Commission would bewithin the scope of the "inquiry and report" contemplated by section12, read with section 11 (e).
I hold that upon a reference under section 12 the Commission isobliged to inquire into and submit a report containing the Commission'sfindings upon the matter referred to it, together with the reasonstherefor; also to submit its views and recommendations, if so requiredby this Court; and to take any other steps as it may be directed totake by this Court in terms of section 11 (e). Such findings, viewsand recommendations will not bind either the parties or this Court.
The provisions of section 26 (2) need consideration:
"A member of the Commission . . . shall not be required toproduce in any Court, any document received by, or discloseto any Court any matter or thing coming to the notice of, theCommission in the course of any inquiry or investigation conductedby the Commission under this Act, except as may be necessaryfor the purpose of proceedings for contempt or for an offence underthis Act."
Considered in isolation, that provision would seem to authorize non-production and non-disclosure to this Court, and that would be in-consistent with the duties imposed on the Commission by otherprovisions of the Act (including sections 11 (e) and 12). I hold that,when section 26 (2) is construed in the context of the entire Act,“Court" does not include this Court.
The Commission is directed to forward its findings and recommen-dations in all these cases on or before 30.11.99.
GUNASEKERA, J. – I agree.
WEERASEKERA, J. – I agree.
Powers of the Supreme Court and duties of the Human RightsCommission determined.