007-SLLR-SLLR-2007-V-1-SENARATH-AND-OTHERS-v.-CHANDRIKA-BANDARANAYAKE-KUMARATUNGA-AND-OTHERS.pdf
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Senarath and others v Chandrika Bandaranayake Kumaratunga
and others
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SENARATH AND OTHERSv
CHANDRIKA BANDARANAYAKE KUMARATUNGAAND OTHERS
SUPREME COURTSARATH N. SILVA, C.J.
TILAKAWARDANE, J.
AMARATUNGA, J.
SC FR 503/2005March 2, 2007
Fundamental Rights – Art 118, Art 126 (1), Presidents' Entitlement Act 4 of1986 -S213- Conferment of wrongful or unlawful benefits – Executive powerexercised in trust for the people – Such wrongful act is an infringement offundamental right? Locus Standi —Sed quis custodiet ipsos cutodies – Nemodebet sua judix.
The petitioners three Attorneys-at-law alleged infringement relating to unlawfulunreasonable arbitrary and mala fide executive action of the 1st respondentwho was at the material time the President of the country and the otherrespondents who were the then members of the Cabinet in securing for the 1strespondent –
a free grant of developed land close to the Parliament
Premises in Colombo 7 from which two public authorities have beenejected to be used as her residence after retirement,
staff and other facilities purportedly under the President'sEntitlement Act.
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Held:
Per S. N. Silva, C.J.
'Good governance and transparency characterize democracy and the rule oflaw and where an infringement of equality before the law is alleged by thewrongful and unlawful grant of facilities and benefits at the highest level of theexecutive, strict rules of pleadings cannot be meted upon."
Though it is correct that a conferment of a wrongful or unlawfulbenefit or advantage may attract other offences such as the offenceof corruption – the fact that the impugned action may or may not bean offence punishable by law does not mean that a person acting inthe public interest is not entitled to seek a declaration from theSupreme Court that the conferment of such benefit or advantage iscontrary to the fundamental right to equality before the law.
The respective organs of government reposed power as custodiansfor the time being to be exercised for the people. The petitionerallege an abuse of power by the incumbent custodian of such powerwhich at all times continues to be reposed in the people – "Sed quisipsos custodies."
The 1 st respondent and the Cabinet of Ministers were the custodianof public property and public funds. The property and funds will haveto be dealt with according to law for the benefit of the people.Therefore, the law itself is the instrumentality through whichcustodians are guarded. This is the basic postulate of the Rule ofLaw.
Per Sarath N. Silva, C.J.
"I am of the view that there is a positive component in the right to equality thatwhere the executive being the custodian of the people's power abuse aprovisions of law in the purported grant of entitlements under such laws andsecures benefits and advantages that would not come within the purview of thelaw, it is in the public interest to implead such action before Court."
The denial of locus standi in the circumstances as presented in thiscase where there has been a brazen abuse of power to wrongfullygain benefits from public resources, would render the constitutionalguarantee of equality before the law meaningless.
Per Sarath N. Silva, C.J.
"In official matters the general rule is that a person would refrain fromparticipating in any process where the decision relates to his entitlement or ina manner where he has a personal interest". 'Nemo debet sua judtf is aprinciple of natural justice which has now permeated the area of corporategovernance as well. This salient aspect of good governance has been throwninto the winds by the 1st respondent in initiating several Cabinet Memorandum
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during her tenure of office and securing for herself purported entitlements thatwould if all ensure only after she lays down the reigns of office."
APPLICATION under Act 126 of the Constitution.
Cases referred to:
In Re the Nineteenth Amendment of the Constitution – 2002 – 3 Sri LR 85.
Visvalingam v Liyanage – 1983 – 1 Sri LR 236.
Premachandra v Jayawickrema 1994 – 2 Sri LR – 90.
S.P. Guptha v Union of India and others. 1982 – AIR (6C) 149.
Peter Jayasekera with Thiranagama and K. Senadheera for petitioner.
Nigel Hatch PC with Gaston Jayakody and Ms. K. Geekiyanage for the 1 strespondent.
P.A. Ratnayake PC DSG with Ms. Demuni de Silva SSC for respondents.
Cur.adv.vult.
May 3, 2007
SARATH N. SILVA, C.J.
The petitioners being three Attorneys-at-law of this Court have oibeen granted leave to proceed on the alleged infringement of theirfundamental rights guaranteed by Article 12 (1) of the Constitution.They plead that the applications have been filed in addition to theirown interest, as a matter of public interest representing the rightsof the citizens of this country, to enforce the fundamental right toequality before the law.
The alleged infringement relates to the unlawful unreasonable,arbitrary and mala fide executive action of the 1st respondent whowas at the material time the President of the country and of 2nd to 10
35th respondents who were then members of the Cabinet ofMinisters, in securing for the 1st respondent a free grant of a landvested in the Urban Development Authority in extent of 11/2 acresclose to the Parliament which had been fully developed at a cost ofRs. 800 million; a premises at No. 27 Independence Avenue,Colombo 7, from which two public authorities viz: the RanaviruSevana Authority and the Disaster Management Centre wereejected to be used as her residence after retirement; staff and otherfacilities; purportedly under the President's Entitlement Act No. 4 of
1986.
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The relevant provisions of the Presidents' Entitlement Act No.
4 of 1986 are as follows:
“There shall be provided to every former President and thewidow of a former President, during his or her life time, theuse of an appropriate residence free of rent;
Provided that where for any reason, an appropriateresidence is not provided for the use of such formerPresident or the widow of such former President, thereshall be paid to such former President or the widow ofsuch former President, a monthly allowance equivalent to 30one third of the monthly pension payable to such formerPresident or the widow of such former President, as thecase may be.
(1) There shall be paid to –
every former President, a monthly secretarialallowance equivalent to the monthly salary for the timebeing payable to the person holding the office ofPrivate Secretary to the President; and
to the widow of such former President, a monthlysecretarial allowance equivalent to the monthly salary 40for the time being payable to the person holding theoffice of Private Secretary to the Minister of the Cabinet
of Ministers.
There shall be provided to every former President andthe widow of such former President, official transportand all such other facilities as are for the time beingprovided to a Minister of the Cabinet of Ministers."
The petitioners have pleaded that they had no access toinformation as to the impugned grant of benefits and advantagesto the 1st respondent and that their interest in the matter was 50aroused by a publication in a Sunday newspaper of 4.12.2005,which has been produced marked "P1", under the heading "All theex-president's perks". The publication referred to an allocation of,a land at madiwela to the 1st respondent and of 36 vehicles,security staff, private staff amounting to a total of 248. The othermatters referred to in the publication in regard to certain
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withdrawals from President Fund amounting to Rs. 600 million, donot form part of this application. The petitioners state that in view ofthe specific material contained in the publication they wrote letterdated 8.12.2005 to the Secretary to the Cabinet of Ministersrequesting copies of related Cabinet Memoranda and decisions inorder to verify their legality. The Secretary replied by letter dated26.12.2005 (P2B) regretting his inability to comply with the request.Thereupon the petitioners wrote to individual Ministers and somedocuments that were made available enabled them file the presentapplication. Considering the matters that had been pleaded thepetitioners were permitted by Court to file amended papers settingout whatever additional material that was available with them insupport of the alleged infringement.
The documents produced by the petitioners relate inter alia, topremises bearing No. 27, Independence Avenue, Colombo 7,which was being extensively repaired at that stage. Since theallocation of the premises as a residence to the 1st respondent hadbeen directly drawn in issue, the Court made an order on thepresent Secretary to the President to disclose the basis on whichthe expenses for repairs were being incurred. Pursuant to thatorder the Secretary to the President produced the relevantdocuments marked 37R8 to 37R12 under confidential cover. It ispertinent here to note that Counsel for the 1st respondent and laterthe 1st respondent herself has filed an affidavit stating that theaction of the Court in calling for information regarding the repairs is"ultra vires" and the 1st respondent strenuously objected to anyinquiry being made into such expenditure. It appears that the 1strespondent has been ill-advised to use the phrase "ultra vires" inrelation to an order made by this Court which is in terms of Article118 of the Constitution “the highest and final Superior Court ofRecord in the Republic". On the other hand the Inquiry before thisCourt is whether the action of the 1st respondent and of theCabinet of Ministers of which she was the head is ultra vires theprovisions of the Presidential Entitlement Act No. 4 of 1986. Goodgovernance and transparency characterise Democracy and theRule of Law and where an infringement of equality before the lawis alleged by the wrongful and unlawful grant of facilities andbenefits at the highest level of the executive, strict rules ofpleadings cannot be insisted upon. The petitioners have pleaded
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and established that they were denied access to information.Theextent to which information has been denied is borne out by the factthat the documents were sent even to Court under confidentialcover. Hence, the objection of the 1st respondent was over-ruledand the documents were made available to the petitioners.ico
I would set out the relevant material in reference to the threematters drawn in issue by the petitioners as regards, the land; theresidence; staff and other facilities.
The Madiwala Land
The first reference to this land in the documents produced bythe parties is contained in the Cabinet Memorandum dated28.03.05 submitted by the Minister of Urban Development andWater Supply. The Memorandum commences by stating that the1st respondent as President "has requested a block of land 11/2acres in extent at Madiwela … for the purpose of construction of a noresidence for herself after her retirement as President".
It specifically states that "she wishes this land to be allocatedin lieu o f the following allowances that a former President is entitledto under the Presidents' Entitlement Act No. 4 of 1986.
Pension
The official residence that she would be entitled to;
Allowance for maintenance of the bungalow, plusallocation for payment of electricity and water bills;
She will thus only take her entitlements of:
A few vehicles120
Security personnel and related equipments and vehiclesfor security purposes;
Office staff."
Paragraph 2 of the Memorandum seeks to justify the grant ofthe land by stating that in terms of the Act if the President does notavail herself of a residence, she would be entitled to the paymentof 1/3 of the pension as rental allowance. This amounts toapproximately Rs. 7,000/- per month. But, as Ministerial type ofoffice residences are in short supply presently, if she avails herselfof her entitlement of a residence, a Minister may probably have to 130
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take a house on rent. The minimum rental of a Ministerial type ofresidence, at present, in the Colombo 7 area where they arepresently situated would be around Rs. 300,000/- to Rs. 400,000/-per month or more. An additional allocation of approximately Rs. 1million has to be made annually for repairs, maintenance as well aspayment of electricity and water bills.
The justification proceeds further to state that the Presidenthas suffered by assassination of her husband and injuries sufferedin an assassination attempt in 1999 and concludes by stating that"the value of land requested is insignificant" when compared with 140the entitlements she has given up and also proposes to forego inthe future.
In paragraph 3 of the Memorandum Cabinet approval issought to allocate the land to the 1st respondent on a "tree-holdbasis for the construction of her residence at her cost".
The petitioners contend that the Memorandum is contrary tothe provisions of the Act which specifically envisages the paymentof a allowance amounting to 1/3 of the pension if a Ministerial typeof house is not available. Their main submission is that theMadiwela land was originally intended for the construction of the iso"Presidential Palace" and a sum of Rs. 800 million has alreadybeen spent by the State to develop the land for the purpose of suchconstruction. The Minister, although leave to proceed was grantedagainst him has not sought to contradict this specific averment inthe petition. In the circumstances this Court has to act on the basisthat the extent of 11/2 acres to be allocated, near the Parliament isa fully developed land in respect of which the State has alreadyspent over Rs. 800 million and that the statement of the Ministerthat the value of land is "insignificant1 is a misrepresentation offacts.160
The Memorandum dated 24.8.2005 was considered on thevery next day by the Cabinet of Ministers and approval was grantedto it by the decision in 36RIB.
It is not clear as to what the Minister meant by a "free-hold"allocation. Such a concept is not known to the law of Sri Lanka.Whatever it may mean it is seen from document 37R2A that theUrban Development Authority in whom the land had been vested,
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on the basis of that decision made a free grant of the land to the 1strespondent by Deed bearing No. 1135 dated 6.9.2005. It issignificant that the date in the deed being a document with several mschedules covering six pages is the very next day from date onwhich the decision of the Cabinet of Ministers was communicated.
The land had been surveyed and the date of the Plan is 15.8.2005/
It is thus seen that within a matter of a brief period of this Courtmaking a pronouncement as to the term of office of the President,the land had been surveyed, a Cabinet Memorandum submittedand approved and a deed containing a free grant issued.
The premises at 27 Independence Avenue. Colombo 7.
The first reference to the allocation of No. 27, IndependenceAvenue, Colombo 7, to the 1st resident is made in the Cabinet isoMemorandum dated 31.10.2005, submitted by the Minister ofPublic Security, Law and Order (36R2A).
This Memorandum makes no reference to the fact that aMemorandum had been submitted by the Minister of UrbanDevelopment and land at Madiwela was allocated to the 1strespondent in lieu of a pension, residence and so on. TheMemorandum of the Minister of Public Security recommends thatan entirely New Division be established for the 1st residence as"the Retired Presidential Security Division IV" headed by a SeniorSuperintendent of Police with 198 personnel, 18 vehicles and 18 190motor cycles to be provided for the use of the officers.
Addressing the matter from the perspective of securityparagraph 3 of the said Memorandum states:
"Allocate the house No. 27, Independence Avenue, Colombo7, for this purpose since she needs to reside in a housewhere adequate security can be provided and to effectrepairs thereto in order to ensure security measures. “
The 1st respondent herself has submitted a Note to theCabinet dated 2.11.2005 titled "Staff of the office of the Presidenton retirement. "(36R3A). It says inter alia, as follows:200
7 will be entitled to certain facilities under the provisions of the
Presidents' Entitlement Act No. 4 of 1986. Provision of official
and personal staff would be one such entitlement."
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I have already selected premises No. 27, IndependenceAvenue,Colombo 7, for my office after retirement. Consideringthe meaningful role that I propose to play in the public affairsof this country on retirement the staff I require to maintain thisoffice is given in the Annexure to this Note.
The annexure sets out a staff as follows:
PARTICULARS OF STAFF210
Designation/CategoryNo. of Positions
President01
Secretary to the Former President & Chief of Staff01
Advisors – Political Affairs & International Affairs02
Advisor – Social Affairs01
Additional Secretary01
Secretaries • Private & Confidential02
Directors – Foreign Relations & Special Projects01
Senior Assistant Secretary02
Assistant Secretaries (SLAS)03220
Assistant Secretaries (Non-SLAS)03
Co-ordinating Secretaries03
Programme Officer01
Manager01
Stenographer – Sinhala/English/Tamil05
Data Entry Operators03
Clerks04
Information Officer01
Cameraman01
Video Cameraman01230
Garden Specialist01
Garden Labourers02
Labourers02
Messenger01
Drivers09
Butlers05
Cook01
KKSS05
Total63
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The matter of the staff would be dealt with under the next 240heading. As regards the allocation of the premises at No. 27,Independence Avenue, it is seen in paragraph 3 of theMemorandum on security, the Minister has stated that thesepremises are needed for her to reside, suppressing the fact that theCabinet has already by a decision taken 2 months before made afree grant of the land at Madiwala in lieu of the entitlement of aresidence and a pension. The 1st respondent in her Note to theCabinet which has been considered by the Cabinet on the sameday as the Memorandum of the Minister viz: 3.11.2005, knowingfully well that she has already got a land free in lieu of a residence 250has stated that she has "already selected premises No. 27,Independence Avenue, Colombo 7, for the office after retirement,considering the meaningful role that she proposes to play in thepublic affairs of the country after retirement" and requests thepersonal staff of 63. There is plainly a contradiction, the Ministercalls it a house to reside in and the 1 st respondent calls it an office.
It has to be noted that there is no entitlement to an office in thePresident's Entitlements Act, No. 4 of 1986. The reference to anoffice in the 1st respondent's Note is a patent mis-representationsince in the staff of 63 included in the annex there are included 5 260Butlers and a Cook. Such persons cannot possibly come within anoffice staff.
The more significant factor not contained in the Memorandumof the Minister and the Note of the 1st respondent is that No. 27,Independence Avenue, was not an "appropriate residence" in termsof Section 2 of the Act. As revealed in the affidavit of the 37threspondent these premises had been donated on 14.05.1980(37R3) by the then President to the Sri Lanka Foundation. It wasused for the Human Rights Centre and at the time material by theRana Viru Seva Authority and the Disaster Management Centre. 270Steps had been taken well prior to the Cabinet decision of
to retake possession of the premises and to shift theAuthority and the Centre to rented premises. Letter dated
(37R4) was sent by the then Chairman of the Sri LankaFoundation to the then Secretary to the President. It states that inreference “to our telephone conversation last week where yourequested that the Sri Lanka Foundation voluntarily surrender theabove mentioned land to the State as Her Excellency the President
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wishes to use the said premises as her office after relinquishingduties," the Board has unanimously resolved to surrender the land.The surrender was sent for registration but there was an error in theprocess which had to be rectified with another resolution beingpassed as recently as 31.10.2006 (vide 37R5, 37R13 and 37R14).Be that as it may, well before even the Cabinet decision with somereference to these premises was made on 3.11.2005 the 1strespondent on her own embarked on the process of effectingrepairs. The estimate dated 30.09.2005 (37R12) for a sum of Rs.43 million reduced to Rs. 35 million appears to have been obtainedby her directly. She addressed a minute dated 30.09.2005 to theSecretary that he should obtain the necessary allocation from theTreasury and release it early. The Secretary sent letter dated
(37R10) to the Treasury requesting a sum of Rs. 40.25million to repair the building and a supplementary allocation wasmade by letter dated 11.11.2005 (37R11). The letter states that theallocation is under –
Head 801 -Department of National Budget.
Programme 07 – Public Resource Management.
Project 02-Budgetary Support Services and
Contingent Liabilities.
Whatever these words may mean the process is nothing but afiscal ruse to incur unauthorized expenditure. It is significant thatthe Budget Estimates for 2006 for the former President which hasalso a column for 2005 does not reflect this figure (Vide: 43R3A).Infact the total expenditure for 2006 is Rs. 37 million and for 2005Rs. 12 million.
Be that as it may, paragraph 3 of the letter (37R11) states asfollows;
“The granting of this allocation should not be construed asadequate authority for incurring expenditure. All expenditureshould be incurred in accordance with the provisions of therelevant Financial Regulations, Establishment Code andinstructions issued from time to time by Government."
By this time the 1st respondent without any recourse to atender procedure and in flagrant violation of the guidelines which
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she herself laid down as Minister of Finance, personally selected acontractor and agreed on the price payable. The Submission ofPresident's Counsel for the 1st respondent that a deviation waswarranted on grounds of urgency is wholly untenable in view of theparagraph 3 of 37R11. This probably is the reason for the stridentobjection to the order of the Court in calling for these documents. 320The documents and the facts set out above clearly establish thatthe entire sequence of events in regard to premises No. 27,Independence Avenue, is an abuse of authority on the part of the1st respondent and marked by a serious deception i.e. thesuppression in both papers to the Cabinet the previous free grantof the Madiwala land in lieu of the entitlement to a pension and aresidence.
Allocation of Staff
The allocation of staff reveals a two track approach as seenfrom the papers referred to above. The Minister in charge of the 330subject of Public Security, Law and Order has submitted theCabinet Memorandum (36R2A) referred to above recommendingthe establishment for the 1st respondent an entirely newPresidential Security Division IV with 198 personnel, 18 vehiclesand 18 motor cycles. The 1st respondent has submitted a Note tothe Cabinet (36R3A) stating her entitlement to an official andpersonal staff of 63 personnel. Both have been considered on thesame day, that is on 3.11.2005 and allowed by the Cabinet ofMinisters.
The submission of the petitioners is that in terms of the 340Presidents' Entitlements Act No. 4 of 1986, a former President doesnot have an entitlement to an office or to office staff. There is onlyan entitlement in terms of Section 3(1) to the payment of a monthlyallowance equivalent to the monthly salary for the time beingpayable to the person holding the office of Private Secretary to thePresident.
The specific reference to an allowance and the manner inwhich it is to be computed, in my view, excludes any other staffbeing allowed to a former President in terms of Act No. 4 of 1986.
The tenor of the Memorandum and the Note submitted by the 1st 350respondent appears to be that the staff requested is a "facility' to
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which a former President is entitled to in terms of Section 3(2) ofthe Act. This provision entitles a former President to "officialtransport and on such other facilities as are for the time beingprovided to a Minister of the Cabinet of Ministers."
In my view the phrase ‘such other facilities' have to be readejusdem generis, to mean similar in nature to the provision ofofficial transport. As regards staff the specific provision in section2 referred above makes reference only to an entitlement of a"monthly secretarial allowance". Therefore the memorandum of the 360Minister and the Note of the 1st respondent cannot derive anyauthority from the provisions of Act No. 4 of 1986.
The petitioners made a further submission that in any eventthe entitlements in Act No. 4 of 1986 are to "every former Presidentand widow of a former President". This is clearly seen in sections 2and 3. Therefore it was submitted that the entitlement becomeseffective only after a President ceases to hold office an acquires thestatus of former President. The entitlement cannot be grantedwhilst the person is holding the office of President.
In my view the provisions have been advisedly worded in this 370manner to avoid a situation as has happened in relation to the 1strespondent of the President himself or herself partaking indecisions as to the entitlements to be given after ceasing to holdoffice.
In official matters the general rule is that a person wouldrefrain from participating in any process where the decision relatesto his entitlement or in a matter where he has a personal interest."Nemo debet sus judex" is a principle of natural justice which hasnow permeated the area of corporate governance as well. Thissalient aspect of good governance has been thrown to the winds by 380the 1st respondent in initiating several Cabinet Memoranda duringher tenure of office and securing for herself purported entitlementsthat would if at all ensure only after she lays down the reigns ofoffice and acquire the eligible status of a former President. To addinsult to injury the 1st respondent herself has submitted a Note tothe Cabinet stating that she intends "to play a meaningful role in thepublic affairs of the country on retirement" and requires a staff tomaintain her office. Whilst there may be of no objection to any
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person playing a meaningful role in public affairs the wrongful actsubmitted by the petitioners is the procurements of land, premises 390for residence, staff (security and personnel) and vehicles contraryto the provisions of Act No. 4 of 1986, both from the perspective oftime and content. The submission of the petitioners is in my viewwell founded.
I am in agreement with the basic submission that theentitlements in the Act apply only to a former President and that theprovisions have been worded in this manner to ensure that theincumbent President would not have occasion to decide on hisentitlements.
The submission of Counsel for the 1st respondent is that even 400if the grant of the land, premises and staff do not come within thepurview of Act No. 4 of 1986, the petitioners nevertheless have nolocus standi to file this application and that the Court has nojurisdiction to decide on the matter.
The implication of the submission of Counsel appears to bethat if there is any conferment of a wrongful or unlawful benefit oradvantage, that has to be addressed in appropriate proceedingsbut it cannot amount to an infringement of a fundamental rightguaranteed by Article 12(1) of the Constitution.
It is indeed correct that a conferment of a wrongful or unlawful 4iobenefit or advantage may attract other offences such as the offenceof corruption in terms of section 70 of the Bribery Act, as amendedby Act No. 20 of 1994. However, the fact that the impugned actionmay or may not be an offence punishable by law does not meanthat a person acting in the public interest is not entitled to seek adeclaration from this Court that the conferment of such a benefit oradvantage is contrary to the fundamental right to equality beforethe law. Ordinarily, an infringement of a fundamental right is allegedwhen the impugned wrongful act on the part of the executive oradministration affects the right of the aggrieved person. The 420petitioners' case is presented on a different basis where they seekto act in the public interest. The case of the petitioners is that the1st respondent and the Cabinet of Ministers of which she was thehead, being the custodian of executive power should exercise thatpower in trust for the people and where in the purported exercise of
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such power a benefit or advantage is wrongfully secured there is anentitlement in the public interest to seek a declaration from thisCourt as to the infringement of the fundamental right to equallybefore the law.
In the context of this submission it is relevant to cite from theDetermination of a Divisional Bench of seven Judges of this Courtin regard to the 19th Amendment to the Constitution!1). The Courtthere laid down the basic premise of the Constitution as enunciatedin Articles 3 and 4, that the respective organs of. government arereposed power as custodians for the time being to be exercised forthe People. At 96 the Court has made the following determinationin regard to sovereignty of the People and the exercise of power.
"Sovereignty, which ordinarily means power or morespecifically power of the State as proclaimed in Article 1 isgiven another dimension in Article 3 from the point of thePeople to include –
the powers of Government.
the fundamental rights; and
the franchise.
Fundamental rights and the franchise are exercised andenjoyed directly by the People and the organs of governmentare required to recognize, respect, secure and advance theserights.
The powers of government are separated as in mostConstitutions, but unique to our Constitution is the elaborationin Articles 4(a), (b) and (c) which specifies that each organ ofgovernment shall exercise the power of the People attributedto that organ. To make this point dearer, it should be notedthat sub-paragraphs (a), (b) and (c) not only state that thelegislative power is exercised by Parliament, executive poweris exercised by the President and judicial power by Parliamentthrough Courts, but also specifically state in each subparagraph that the legislative power "of the People" shall beexercised by Parliament, the executive power "of the People"'shall be exercised by the President and the judicial power "ofthe People" shall be exercised by Parliament through the
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Courts. This specific reference to the power of the People ineach sub paragraph which relates to the three organs ofgovernment demonstrates that the power remains andcontinues to be reposed in the People who are sovereign, andits exercise by the particular organ of government being its
custodian for the time being, is for the People(at
page 98). Therefore, executive power should not be identifiedwith the President and personalized and should be identifiedat all times as the power of the People."470
The petitioners allege an abuse of power by the incumbentcustodian of such power which at all times continues to be reposedin the People. The basic question therefore arises as posed byJuvenal in the 1st century A.D. who wrote the famous latin phase ina slightly different context which has been frequently citedthereafter. “Sed quis custodiet ipsos Custodes?" meaning, ‘butwho is to guard the guards themselves?". The 1st respondent andthe Cabinet of Ministers were the custodian of public property andpublic funds. The property and funds will have to be dealt withaccording to law for the benefit of the people. Therefore, in my view 480the law itself is the instrumentality through which custodians areguarded. This is the basic postulate of the Rule of Law. It has beenaffirmatively stated in several judgments of this Court that the Ruleof Law is the basis of our Constitution (Vide: Visvalingam vLiyanagei2> and Premachandra v JayawickremaP>. The phrase"Rule of Law" itself gained recognition as a premise of EnglishConstitutional Law.
A.V. Dicey in his Famous work "The Law of the Constitution"at page 202 states as follows:
“That 'rule of law' then, which forms a fundamental principle 490of the constitution, has three meanings, or may be regardedfrom three different points of view.
It means, in the first place, the absolute supremacy orpredominance of regular law as opposed to the influence ofarbitrary power, and excludes the existence of arbitrariness,of prerogative, or even of wide discretionary authority on thepart of the government. Englishmen are ruled by the law, andby the law alone; a man may with us be punished for a
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breach of law, but he can be punished for nothing else.
It means, again, equality before the law, or the equalsubjection of all classes to the ordinary law of the landadministered by the ordinary law courts; the "rule of law" inthis sense excludes the idea of any exemption of officials orothers from the duty of obedience of law which governs othercitizens or from the jurisdiction of the ordinary tribunals;
The 'rule of law', lastly, may be used as a formula
for expressing the fact that with us the law of the constitution,the rules which in foreign countries naturally form part of aconstitutional code, are not the source but the consequenceof the rights of individuals, as defined and enforced by thecourts…"
The rule of law thus gains its efficacy by being enforced by theCourts.
In S.P. Guptha v Union of India and others<4> at 149, nineJudges of the Supreme Court of India ruled in favour of a publicinterest suit filed by certain lawyers as a writ petition. In hisjudgment Bhagawathi, J., who was later the Chief Justice of Indiamade the following observations with regard to the impact of theprinciple of rule of the law at 197.
“If there is one principle which runs through the entire fabricof the Constitution, it is the principle of the rule of law andunder the Constitution, it is the judiciary which is entrustedwith the task of keeping every organ of the State within thelimits of the law and thereby making the rule of lawmeaningful and effective. It is to aid the judiciary in this taskthat the power of judicial review has been conferred upon thejudiciary and it is by exercising this power which constitutesone of the most potent weapons in armoury of the law, thatthe judiciary seeks to protect the citizen against violation ofhis constitutional or legal rights or misuse of abuse of powerby the State or its officers".
In considering the provisions of our Constitution as analysedin the Determination in the 19th Amendment (supra) and theobservations cited above of Dicey and the Supreme Court of India,
I am of the view that there is a positive component in the right to
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[2007] 1 Sri L.R
equality. That, where the executive being the custodian of thePeople's power abuse a provision of law in the purported grant ofentitlements under such law and secures benefits and advantagesthat would not come within the purview of the law, it is in the publicinterest to implead such action before Court. The denial of a locus 540standi in the circumstances as presented in this case where therehas been a brazen abuse of power of power to wrongfully gainbenefits from public resources, would render the constitutionalguarantee of equality before the law meaningless. The facts thathave been clearly established in this case prove that the 1strespondent and the Cabinet of Ministers of which she was thehead, secured for the 1st respondent benefits and advantages inthe purported exercise of executive power in breach of theprovisions of the President's Entitlement Act No. 4 of 1986. Sinceexecutive power is exercised in trust for the People, such wrongful 550action is an infringement of the fundamental right to equality beforethe law guaranteed by Article 12(1) of the Constitution.
For these reasons I allow the application and grant to thepetitioners the declaration prayed for that their fundamental rightguaranteed by Article 12(1) of the Constitution has been infringedby executive action in the purported grant of benefits andadvantages to the 1 st respondent contrary to the provisions of thePresidents' Entitlements Act No. 4 of 1986.
As regards consequential relief it is seen that the 1strespondent has after this application was filed returned the land in 560question by a notarial instrument. Nevertheless a formaldeclaration is made that the decision to grant the land referred to inthe Petition to the 1st respondent is contrary to law and of no forceor avail in law.
Similarly declarations are made that the decisions which byimplication give a right to the 1st respondent to the use andoccupation of premises No. 27, Independence Avenue, Colombo 7,are of no force or avail in law.
I grant further declaration that the decisions that have beenmade from time to time by the Cabinet of Ministers and produced 570in Court with regard to the staff, both security and personal of noforce or effect in law.
sc
Senarath and others v Chandrika Bandaranayake Kumaratunga
and others (Sarath N. Silva, C.J.)
77
The 1 st respondent would now be entitled to the benefits asstated in sections 2 and 3 of the Presidents' Entitlements Act No. 4of 1986. The entitlement would be to an appropriate residence freeof rent and where an appropriate residence it is not available the1st respondent would be entitled to a monthly allowance of 1/3rd ofthe monthly pension that payable. Premises No. 27 IndependenceAvenue, Colombo 7, which has not been used as a residencecannot be considered as an appropriate residence for the purpose 580of section 2 of the Act.
The 1st respondent would also be entitled to a monthlysecretarial allowance to be computed in the manner stated insection 3(1 )(a) of the said Act and for official transport and facilitiesrelating to such transport as permitted in terms of section 3(2)a ofthe said Act.
It has to be noted that the President's Entitlement Act No. 4 of1986 is a unique piece of legislation which grants entitlements onlyto former Presidents and their widows. Intrinsically it is anexception to the concept of equality before the law, since no other 590holder of public office is granted such benefits. It appears that thereis no similar legal provision in any other country.
The provisions of this Act being an exception in itself toequality before the law, have to be strictly interpreted and applied.
In the circumstances the submission of Counsel for the 1strespondent the allocation made in the Appropriation Act for 2006 forsalaries of the staff for the 1 st respondent creates an entitlement toa staff is misconceived. An allocation in the Appropriation Actpredicates that the money allocated should be expended accordingto law.soo
The application is allowed. The 1st respondent will pay a sumof Rs. 100,000/- as costs to the petitioners and the State will pay afurther sum of Rs. 100,000/- as costs.
THILAKAWARDENA, J.-I agree.
AMARATUNGA, J.-I agree.
Relief granted.