020-SLLR-SLLR-1995-V-1-SENERATH-v.-CHANDRARATNE-COMMISSIONER-OF-EXCISE-AND-OTHERS.pdf
SENERATH
v.
CHANDRARATNE,
COMMISSIONER OF EXCISE AND OTHERS
SUPREME COURT.
G. P. S. DE SILVA, C.J.
KULATUNGA, J. ANDWIJETUNGA, J.
AUGUST 03, 1995.
Fundamental Rights – (1) Constitution, Article 12(c) and (2) – Discrimination -Can Supreme Court review its order granting leave to proceed ? – Presidentialimmunity under Article 35 of the Constitution – Burden of proof- Per incuriam
The petitioner alleged that the respondent had not renewed his liquor licence atthe instigation of Mrs. Chandrika Bandaranaike Kumaratunga, President of theRepublic. Leave to proceed was granted by the Supreme Court on 21st July1995. On a preliminary objection being taken, that the proceeding was barred byprovisions of Article 35 conferring immunity on the President and should havebeen dismissed in limine-
Held:
The decision granting or refusing leave to proceed is final as far as the case isconcerned. In general the Court cannot re-hear, review, alter or vary suchdecision. However the Court has limited power to clarify its judgment and tocorrect accidental slips or omissions. The Court has also the power to correctmanifest error or an order made per incuriam. A Court has also the power “toopen up a judgment given in the absence of one of the parties." (ex parte order).But the order which is being sought to be varied is not an ex parte order in thatsense, for neither Article 126(2) nor the Rules of the Supreme Court confer a rightto the respondents to be heard before leave to proceed is granted. It is an ordersui generis, not having the character of an ex parte judgment, which may re-openthe exercise of the inherent power of the Court or otherwise set aside, as may beprovided by the statute.
Article 35(3) states that the immunity conferred by Article 35(1) shall not apply toany proceedings in Court in relation to the exercise of any power pertaining toany subject or function assigned to the President or remaining in his chargeunder Article 44(2) or to proceedings in the Supreme Court under Article 129(2)(proceedings for impeachment) or Article 130(a) relating to the election of thePresident or the validity of a referendum or to proceedings in the Court of Appealunder Article 144 or in the Supreme Court, relating to the election of a Member of
Parliament. Provided that any such proceedings in relation to the exercise of anypower pertaining to any such subject or function shall be instituted against theAttorney-General. Parliament has thereby narrowed down the President’simmunity in areas in which it may become necessary to implead his politicalconduct in seeking reliefs provided for by the Constitution.
The Supreme Court has inherent powers to correct its errors which aredemonstrably and manifestly wrong and where it is necessary in the interests ofjustice. Decisions made per incuriam can be corrected. These powers areadjuncts to existing jurisdictions to remedy injustice – they cannot be made thesource of new jurisdictions to revise a judgment rendered by that Court. Whetherthe question is one of interpretation the order cannot be one made per incuriam.Hence the order of 21st July 1995 was not made per incuriam. Article 35 of theConstitution provides for the personal immunity of the President during his tenureof office. It bars the institution of proceeding, against him in any Court. Thereference is to proceedings in which some relief is claimed or liability is alleged,by way of an action or a prosecution. In the instant case the petitioner has notfiled proceedings in a Court seeking relief against the President. The respondentsto the application are officials. Relief has been sought against the officials only.
There is no legal obligation for the President to file an affidavit. The burden isclearly on the petitioner. The respondents are at liberty to decide what materialthey will place before this court, as advised. As such no question of evasion ofArticle 35 arises. The rule of construction against evasion that what a person or'Court may not do directly, it may not do indirectly or in a circuitous manner doesnot apply.
There are no exceptional circumstances for reversing the order of 21st July 1995by the exercise of the inherent powers of court.
Cases referred to:
Hettiarachchi v. Seneviratne S.C. Application No. 127/94 Supreme CourtMinutes of 04th July 94.
Gargial v. Somasunderam Chetty 9 NLR 26,29.
Kumaratunga v. Jayakody (1985) 2 Sri LR 124.
Alasupillai v. Yapetipullai 39 CLW 107.
Huddersfield Police Authority v. Watson (1947) 2 All ER 193.
Morelle Ltd. v. Wakeling(1955) 1 All ER 708, 718.
Ganeshananthan v. Goonewardena (1984) 1 Sri LR 321.
Magdalen College Case (1616) 11 Rep. 661.
Cross v. Watts (1863) 32 LJMC 73.
Kodakan Pillai v. Mudannayake 54 NLR 433,438.
Bandaranaike v. Weeraratne (1981) 1 Sri LR 10.
Hirdaramani v. Ratnavale 75 NLR 67, 113.
Ashutosh v. State of Delhi A1R 1953 SC 451.
PRELIMINARY objection to maintenance of fundamental rights application.
T. G. Marapone, PC. with D. Weerasuriya and N. Ladduwahetty for petitioner.
Shibly Aziz, PC. Attorney-General with A. S. M. Perera, Add!. S.G. and TonyFernando, S.C. as amicus curiae.
Cur. adv. vult.
August 24, 1995.
G. P. S. DE SILVA, C.J. read the following Order of Court.
The petitoners sought relief against the 1st respondent(Commissioner of Excise) and other officials on the ground that byreason of their failure to renew the petitioner’s licences for 1995 to sellliquor, his rights under Articles 12(1), 12(2) and 14(1) (g) have beeninfringed. The petitioner has joined as parties to this application forpersons to whom liquor licences have been issued. He alleges thatsuch issue establishes unlawful discrimination. He also applied for aninterim order for the renewal of his licences pending thedetermination of this application, to avoid “irreparable loss” to hisbusiness which would otherwise result from the failure to grant thelicences sought by him.
• On 21.07.95 we granted the petitioner leave to proceed in respectof the alleged infringements of Articles 12(1) and 12(2); the Counselfor the petitioner did not press for relief in respect of Article 14(1) (g).We issued the interim order sought until 28.07.95 and directed thatthis case and a few similar cases be listed on 28.07.95 for a decisionon the question of the interim order. The Attorney-General wasrequested to assist the Court on that matter.
On 28.07.95 the Attorney-General himself appeared and objectedto the extension of the interim order sought in this case and furthersubmitted that leave to proceed should not have been granted inview of certain averments in the petition wherein the petitioner allegesthat the respondents had not renewed his licences, at the instigation
of Mrs. Chandrika Bandaranaike Kumaratunga who had notrecommended the renewal of licences for his liquor shop situated atNittambuwa. It was submitted that this application should have beendismissed in limine, presumably on the ground that this is aproceeding against the President of the Republic in breach of Article35 of the Constitution; whereupon, the Bench which heard the matterdirected that it be listed before the Bench which gave leave toproceed. Consequently, we heard the Attorney-General and Counselfor the petitioner on the aforesaid objection and reserved our orderthereon.
The Attorney-General submitted that we should set aside our orderdated 21.07.95, refuse leave to proceed and dismiss this application.On behalf of the petitioner, Mr. Weerasuriya submitted that there is nobasis on which the said order may be set aside.
The impugned order is an order of the Supreme Court made underArticle 126(2) of the Constitution which requires a petitioner seekingrelief thereunder to obtain leave from the Court to proceed with theapplication "which leave may be granted or refused”. It has beenheld that such decision is final, as far as the case is concerned; andthat in general the Court cannot re-hear, review, alter or vary suchdecision. However, the Court has limited power to clarify its judgmentand to correct accidental slips or omissjons. The Court also has thepower to correct manifest error or an order made per incuriam.Hettiarachchi v. Seneviratne (1>.
A Court also has the power “to open up a judgment given in the .absence of one of the parties” (ex parte order) Gargial v.Somasundram Chetty<2). But the order which is sought to be varied isnot an ex parte order in that sense; for neither Article 126(2) nor theRules of the Supreme Court, confer a right to the respondents to beheard before leave to proceed is granted. It is an order sui generis,not having the character of an ex parte judgment, which may bereopened in the exercise of the inherent power of the Court orotherwise set aside, as may be provided by statute.
We have to decide (a) whether this application should have beendismissed in limine-, (b) whether we may set aside the order made on
21.07.95; and (c) if so, what is our power to vary that order? The mainsubmission advanced by the Attorney-General was that the Court hasoverlooked Article 35(1) of the Constitution which reads:
"While any person holds office as President no proceedingsshall be instituted or continued against him in any Court ortribunal in respect of anything done or omitted to be done byhim either in his official or private capacity".
Article 35(3) states that the immunity conferred by Article 35(1) shallnot apply to any proceedings in Court in relation to the exercise ofany power pertaining to any subject or function assigned to thePresident or remaining in his charge under Article 44(2) or toproceedings in the Supreme Court under Article 129(2) (proceedingsfor impeachment) or Article 130(A) relating to the election of thePresident or the validity of a referendum or to proceedings in theCourt of Appeal under Article 144 or in the Supreme Court, relating tothe election of a Member of Parliament. Provided that any suchproceedings in relation to the exercise of any power pertaining to anysuch subject or function shall be instituted against the Attorney-General.
It is to be noted that in terms of the above provisions the Presidentcan be personally sued in proceedings for his impeachment or inproceedings for challenging his own election as President or areferendum or the election of a Member of Parliament. It is significantthat the provision for personal suit against the President in respect ofa referendum or the election of a Member of Parliament was addedby the 14th Amendment to the Constitution. Parliament has therebynarrowed down his immunity in areas in which it may becomenecessary to implead his political conduct in seeking reliefs providedfor by the Constitution. Prior to this amendment, an election petitioncould not be validly filed making the President a respondent.Kumaratunga v. Jayakody™.
The immunity conferred by Article 23(1) of the 1972 Constitution onthe President was identical with the immunity conferred by Article35(1) of the 1978 Constitution. However, the President under thatConstitution was a constitutional figure head who was required to acton the advice of the Prime Minister.
Even after the amendment of Article 35, the immunity conferredthereby remains very wide especially when it is compared with theimmunity of the President of India under Article 361 of the IndianConstitution. In India, the immunity protects the President againstcriminal proceedings only whilst civil proceedings in respect of hispersonal acts can be instituted in a Court, two months next after anotice of such action in writing delivered to him.
During a period of about two months, about 184 applications havebeen filed before this Court complaining of similar infringements offundamental rights arising out of the failure of the respondents torenew liquor licences for the year 1995. The petitioners allege thatalthough their applications for fresh licences have beenrecommended by the Divisional Secretary, the Officer-in-Charge ofthe Police Station, the area Superintendent of Excise and theAssistant Commissioner of Excise for the district, licences have beenissued only to persons recommended by the People’s AllianceMember of Parliament of the area or in the absence of a People’sAlliance Member of Parliament, to persons recommended by thePeople’s Alliance area organiser. They add that suchrecommendations are monitored by an Addl. Secretary to thePresident operating from the Presidential Secretariat (the 9threspondent in this case). He sends down a list of such eligibleapplicants to the 1st respondent who then issues licences to them.
The generality of the petitioners in the above cases claim to besupporters of the United National Party. But the petitioner in this caseclaims to have been an active Member of Sri Lanka Freedom Partyfrom 1965. After the reorganisation of the party hierarchy and theformation of the P.A., he desisted from working for the S.L.F.P. and theP.A. He states that this displeased Mrs. Chandrika BandaranaikeKumaratunga whose recommendation was required for the renewal ofhis licences. Due to such displeasure, he avers, she did notrecommend the renewal sought by him; and that on her instigation,the 1st and 4th respondents refused to renew his licences andthereby subjected him to hostile discrimination.
The Attorney-General argued that the allegation made by thepetitioner impinges on the private conduct of the President which inturn would compel the President to file an affidavit (denying theallegation); that in default, the Court may find her culpable; thatArticle 35 protects the President from such treatment; that theimmunity under that Article is very wide; that the Court should notpermit the petitioner to make allegations against the President whichwould be tantamount to doing in an indirect or circuitous manner thatwhich it has prohibited or enjoined; that “a Constitution must not beconstrued in a narrow or pedantic manner, and that constructionmost beneficial to the widest possible amplitude of its powers, mustbe adopted”. He cited in support Maxwell 12th Edt. Chapter 6Bennion “Statutory Interpretation” pages 347-350, 714, 715 and 718-720. Seervali “Constitutional Law of India" 4th Edt. Chapter II.
In the alternative, the Attorney-General relied on Hettiarachchi’scase (supra) as an authority for justifying the review of the order ofthis Court made on 21.07.95.
Mr. Weerasuriya argued that there is no legal basis for canvassingthe order of this Court; that the Attorney-General has sought to givean interpretation to Article 35 which, on a plain reading, only gives apersonal immunity against instituting proceedings in a Court; thatbeing so, the question which has been raised is merely one ofinterpretation; hence there is no order made per incuriam. Counselargued that in any event the petitioner has sought relief againstofficials and pot against the President.
In the case of Alasupillai v. Yapetipillai(4) Basnayake, J. (as he thenwas), following the case of Huddersfield Police Authority v. Watson(5)stated “A decision per incuriam is one given when a case or a statutehas not been brought to the attention of the Court and it has given thedecision in ignorance or forgetfulness of the existence of that case orstatute”. In MorelleLtd. v. Wakeling(6) the Court observed:
“As a general rule the only cases in which decisions should beheld to have been given per incuriam are those decisions givenin ignorance or forgetfulness of some inconsistent statutoryprovisions or of some authority binding on the Court concerned;
so that in such cases some part of the decision or some step inthe reasoning on which it is based is found, on that account, tobe demonstrably wrong. This definition is not necessarilyexhaustive, but cases not strictly within which can properly beheld to have been decided per incuriam must consistently withthe stare decisis rule which is an essential feature of our law, be…of the rarest occurrence" (per Evershed MR)
In Ganeshananthan v. Goonewardena (7) (a Bench of sevenJudges) this Court held that as a superior Court of record theSupreme Court has inherent powers to correct its errors which aredemonstrably and manifestly wrong and where it is necessary in theinterests of justice. Decisions made per incuriam can be corrected.These powers are adjuncts to existing jurisdiction to remedy injustice- they cannot be made the source of new jurisdictions to revise ajudgment rendered by that court.
In the light of the above principles and the language of Article 35,it cannot be said that our order is one made per incuriam. We agreewith Mr. Weerasuriya that the question which has been raised ismerely one of interpretation; hence there is no order per incuriam. Weare, therefore, left with the question whether there are circumstanceswhich empower the Court to vacate the impugned order in theexercise of its inherent powers as set out above and in the light of thedecision in Hettiarachchi’s case {supra).
In Hettiarachchi's case, the petitioner complained that byappointing another officer to the post of Bribery Commissioneroverlooking his claims to that post, his rights under Article 12(1) wereinfringed. This Court was constrained to refuse leave to proceed inthe first instance by reason of the fact that counsel failed to supportthe application on relevant grounds, notwithstanding an indication bythe Court to do so but persisted in urging a ground which wasrejected by the Court. On a motion filed in the same case, the matterwas heard by the same Bench which permitted Counsel to makefurther submissions. The Court decided that its previous order wasnot per incuriam. However, in the exceptional circumstances of thecase, the Court granted leave to proceed on a limited ground.
We are of the opinion that Hettiarachchi’s case has no applicationto the case before us. That was a case in which the Court grantedrelief to the petitioner, on further submissions being made, based onthe petition, in the exceptional circumstances of the case. Here theapplication is to vacate an order by which relief was granted. Thatorder was not made per incuriam and there are no exceptionalcircumstances for reversing the order. On this basis, the objectionraised by the Attorney-General fails. However, in deference to thesubmissions addressed to us, we consider it appropriate to expressour views on the points raised, as to the nature and scope of theimmunity conferred by Article 35.
The Attorney-General relied on the rule of construction againstevasion. It has been held that “the office of the Judge is, to makesuch construction as will suppress the mischief and advance theremedy, and to suppress all evasions for the continuance of themischief” – Magdalen College Case™. In this connection, it isobserved that the rule that you cannot do in an indirect or circuitousmanner that which the statute has prohibited or enjoined, applies topersons, the Legislature and even a Court.
Thus, a shopkeeper who was licensed only to sell beer forconsumption off the premises was held to be in breach of therelevant statute if he sold beer to be drunk on a bench which heprovided for his customers close to the shop, the intention making it,virtually, a sale for consumption on the premises Cross v. Watts<9). Asregards the Legislature, in Kodakan Pillai v. Mudannayake (10) thePrivy Council observed:
"… there may be circumstances in which legislation so framedso as not to offend directly against a constitutional limitation ofthe power of the legislature may indirectly achieve the sameresult, and that in such circumstances the legislation would beultra vires".
In Bandaranaike v. Weeraratne<11) this Court dismissed in limine anapplication for a writ of certiorari to quash a recommendation forimposition of civic disability made under S. 9 of Law No. 7 of 1978 in
view of the fact that Parliament had already passed a resolutionunder Article 81 of the Constitution subjecting the petitioner to civicdisability; and Article 81(3) provided, inter alia;
"No Court or tribunal shall … in any manner call in question thevalidity of such resolution on any ground whatsoever”.
At page 16, Samerawickrama, J. said that if the Court were toentertain the application it would be acting in violation of thepreclusive clause. He also said:
“There is a general rule in the construction of statutes that whata Court or a person is prohibited from doing directly, it may notdo indirectly or in a circuitous manner"
Article 35 of the Constitution provides for the personal immunity ofthe President during his tenure of office. It bars the institution ofproceedings against him in any Court. The reference is toproceedings in which some relief is claimed or liability is alleged, byway of an action or a prosecution. The mode of institution of an actionis set out in Chapter VII of the Civil Procedure Code whilst theprocedure for institution of a prosecution is set out in S. 136 of theCode of Criminal Procedure Act.
In the instant case, the petitioner has not filed proceedings in aCourt seeking relief against the President. The respondents to thisapplication are officials. Relief has been sought against the officialsonly. The complaint is that the refusal by the 1st and 4th respondentsto renew the petitioner’s liquor licences was mala fide, capricious anddue to extraneous considerations to wit, the policy of issuing licencesonly to persons recommended by a P.A., M.P. or PA. Organiser forthe area. In the context, it is also alleged that Mrs. ChandrikaBandaranaike Kumaratunga who is the political authority whoserecommendation is required for issuing licences for the Nittambuwaarea is displeased with the petitioner; and it is further alleged that therespondents refused to renew the licences of the petitioner, acting onher instigation. As observed by Samerawickrama, J. in Hirdaramani v.Ratnavale <w. The burden of proving such an allegation is on the
Senerath v. Chandraratne, Commissioner of Excise and Others(G. P. S. de Silva, C.J.)
party who makes it and it is a very heavy burden to discharge. Theraising of mere suspicion is not sufficient – Vide Ashutosh v. State ofDelhi™.
There is, therefore, no warrant for the opinion expressed by theAttorney-General that the President is obliged to “answer theallegation” and that in the instant case, the President has to file anaffidavit. We are of the view that there is no such legal obligation. Theburden is clearly on the petitioner. The respondents are at liberty todecide what material they will place before this Court, as advised. Assuch, no question of evasion of Article 35 arises. The petition doesnot contain any averment referring to the President. As such thereference to the President is but a natural consequence of the factthat the President is also a leader of the ruling political party, a factorwhich Parliament has already taken cognizance of in amendingArticle 35.
We are also confident that the interpretation of Article 35 which wehave given is supported by the plain meaning of its language. Thereis no need to give a wider meaning to that Article, especially in the
light of Article 4(d) which reads:
“The fundamental rights which are by the Constitution declaredand recognized shall be respected, secured and advanced byall organs of the government, and shall not be abridged,restricted or denied, save in the manner and to the extenthereinafter provided”.
The objection raised by the State is accordingly rejected. The petitionis set down for hearing on the merits.
Preliminary objection overruled.