Sri Lankan Supreme Court on January 2017 – selected text from http://supremecourt.lk

Sri Lankan Supreme Court on January 2017 – selected text from "http://supremecourt.lk"

A             Fundamental Rights

(1)   Fundamental Right – directive principles - its effect on Fundamental Right chapter

“The Fundamental Rights referred to in Chapter III of our Constitution should be interpreted in the light of the Directive Principles of State Policy and the fundamental duties referred to in Article 28. By defining the constitutional goals, the Directive Principles and fundamental duties set forth the standards or norms of reasonableness which must guide and animate governmental action. If no one can maintain an action for redress of a public wrong or public injury, it would be disastrous to the rule of law for it would be open to the State or a public authority to act with impunity beyond the scope of its power or in breach of a public duty owed by it. 

The strict rule of standing which insists that only a person who had suffered a specific legal injury can maintain an action for judicial redress is relaxed and a broad rule evolved which gives standing to any member of the public who is not a mere busy body or a meddlesome interloper but who has sufficient interest in the proceeding. There can be no doubt that the risk of legal action against the State or its agencies by any citizen will induce the State or its agencies to act with greater responsibility and care thereby improving the administration of justice.” 

per Chief Justice K. Sripavan in Ajith P. Dharmasuriya v. Mahaweli Authority of Sri Lanka &Others (SC FR Application No. 330/2015 decided on 09.01.2017) 

(2)    Fundamental Right, Article 12 – transfer - A right to reason

“Giving of reasons is an essential element of administration of justice. A right to reason is, therefore, an indispensable part of a sound system of judicial review. Reasoned decision is not only for the purpose of showing that the citizen is receiving justice, but also a valid discipline for the administrative body itself. 

Conveying reasons is calculated to prevent unconscious, unfairness or arbitrariness in reaching the conclusions. The very search for reasons will put the authority on the alert and minimize the chances of unconscious infiltration of bias or unfairness in the conclusion. The duty to adduce reasons will be regarded as fair and legitimate by a reasonable man and will discard irrelevant and extraneous considerations. Therefore, conveying reasons is one of the essentials of justice.”

per Chief Justice K. Sripavan in Jayaweerage Sumedha Jayaweera v. Public Service Commission &Others (S.C. F.R. Application No. 484/2011 decided on 16.01.2017)

(3)    Fundamental Right – Article  12 – nature of a government servant - State can impose restrictions and regulations which are not arbitrary

“A Government Servant is employed on terms which are offered to him. His stay in the public service and promotions are all matters which are regulated by the authorities concerned. That would not mean that his basic fundamental rights are to be surrendered. A public servant is generally guided by the Establishment Code which has a statutory flavour. There are circulars issued by the Government which need to be carefully considered. State can impose restrictions and regulations which are not arbitrary. Whatever regulations, must conform to maintain the best standard for the public service.” 

per Justice Anil Gooneratne in A.R. Mudiyanselage Tikiribanda & Another v. Public ServiceCommission& Others (S.C. FR No. 370/2011 decided on 19.01.2017)

(4)    Fundamental Right – Article  11 & 13 – every person is entitle to Constitutional safeguards 

“The police party seems to have made use of the court to fabricate false charges against the Petitioner and bring the Administration of Justice to disrepute, merely to achieve their purpose. Even a criminal and a prisoner would be entitled to basic constitutional safe guards provided by the Constitution…. I wish to observe that usually obtaining proof in this type of case is no easy task due to reluctance on the part of witness to testify against law enforcement authority.” 

per Justice Anil Gooneratne in Sarath Kumara Naidos  v.Inspector Damith, Police Station, Moratuwa & Others  (S.C FR Application No. 608/2008 decided on 19.01.2017)

(5)    Fundamental Right – Article 17 & 126(1) -  executive and  administrative action - an incorporated body - its liability

“When an impugned act is committed by or on behalf of the State by an Officer of the State or by a Department of the State, such an act will constitute “executive or administrative action” since in each such case it is, quite obviously, an “organ of the Government” which commits the act. However, the position is less clear when the act is committed by an incorporated body which has been established by the State or which is connected to the State. In such circumstances, the corporate body which commits the impugned act has a legal persona and identity which is distinct from the State. This may make it not immediately evident whether or not the act committed by that corporate body, amounts to “executive or administrative action” as contemplated in Articles 17 and 126 (1).

Thus, organs, agencies and instrumentalities of the State are to be guided by the requirement of good faith in their contractual dealings and a departure from this standard by misusing a contractual term or committing a deliberate breach of contract in a malicious or perverse or arbitrary or manifestly unreasonable manner, could well amount to an act which violates the fundamental rights of the victim if the impugned act violates one or more of his fundamental rights declared and recognized in Chapter III of the Constitution.

It should be made clear that, where an organ, agency or instrumentality of the State acts in breach of a contract due to bona fide commercial or operational factors or inadvertence or unavoidable circumstances or as a result of a bona fide revised policy or for similar reasons, that breach per se is unlikely to amount to a violation of the fundamental rights of the other party and would, usually, attract only the remedies available under the contract. A Court would, naturally and advisedly, be unwilling to substitute its own opinion of what should have been done under the contract in place of the decision taken by the contracting party. But, where there has been a deliberate misuse of a term of the contract or a deliberate breach of the contract in a malicious or perverse or arbitrary or manifestly unreasonable manner, then there could be a violation of the fundamental rights of the other party. This is because, in such cases, the impugned act may amount to a violation of Article 12 (1) or another Article in Chapter III of the Constitution by reason of the malice, perversity, arbitrariness or manifest unreasonableness of the impugned act. Each such case would have to be determined upon the facts and circumstances before the Court and in the context of the contract between the parties. When doing so, it should be kept in mind that, as mentioned earlier, the parties have agreed to be bound by the terms of the contract and the remedies available under the contract and that, therefore, unless the nature of the impugned act warrants the invocation of the fundamental rights of this Court for the reasons set out above or for such other reasons as the Court may consider relevant, the parties should be required to seek their remedies under the contract they have entered into.” 

per Justice Prasanna Jayawardena, PC in Captain Channa D.L. Abeygunewardena v. Sri Lanka Ports Authority& Others (S.C F.R. 57/2016 decided on 20.01.2017)