A landmark judgment

Print edition : February 13, 1999

TWO days after the conclusion of the North-Western Provincial Council elections, Sri Lanka's Supreme Court passed a judgment with far-reaching implications for the interpretation of the country's Constitution.

The verdict was delivered in a case relating to Provincial Council polls to five Provinces - North-Central, Central, Western, Uva and Sabaragamuva - which had been postponed. A three-member Bench headed by Chief Justice G.P.S. De Silva held that the postponement of the polls was "arbitrary and unreasonable" and "infringed" the "fundamental rights of the petitioners".

The immediate significance of the verdict, however, was somewhat diluted by the fact that the Government had already declared its intention to conduct the elections. Yet, in the long run, the judgment is likely to clear up certain nebulous notions about the powers of the Executive Presidency. For one, by pulling up the Commissioner of Elections for not seeking a judicial review, the court placed a check on the implementation of presidential proclamations and regulations.

The court clearly defined what was perceived as wide-ranging presidential immunity from courts under Article 35 of the Constitution by stating that the Article "neither transforms an unlawful act into a lawful one nor renders it one which shall not be questioned in any court. It does not exclude judicial review of the lawfulness or propriety of an impugned act or omission, in appropriate proceedings against some other person who does not enjoy immunity from suit; as, for instance, a defendant or a respondent who relies on an act done by the President, in order to justify his own conduct."

In effect, the judgment curbs the powers that can be exercised by an Executive President under Emergency regulations with regard to the conduct of elections. Moreover, by holding that franchise is a fundamental right of expression, the court gave judicial protection to the right to vote. The verdict firmly held that the Commissioner of Elections had "infringed" the respondents' (Varuna Karunatilaka and Sunanda Deshapriya) "fundamental rights under Article 12 (1) that is, 'All persons are equal before the law and are entitled to equal protection of the law') and Article 14 (1) (a) (under which 'every citizen is entitled to the freedom of speech and expression, including publication') by failing to take steps to enable the taking of the poll..."

Considering whether the right to vote constituted a form of speech and expression, the court said that "concepts such as 'equality before the law', 'the equal protection of the law' and 'freedom of speech and expression, including publication', occurring in a statement of constitutionally entrenched fundamental rights, have to be broadly interpreted in the light of fundamental principles of democracy and the Rule of Law..."

The verdict speaks in clear terms about franchise when it says: "A Provincial Council election involves a contest between two or more sets of candidates contesting for office. A voter has the right to choose between such candidates, because in a democracy it is he who must select those who are to govern - or rather, to serve - him. A voter can therefore express his opinion about candidates, their past performance in office, and their suitability for office in the future. The verbal expression of such opinions, as for instance, that the performance in office of one set of candidates was so bad that they ought not to be re-elected, or that another set deserved re-election - whether expressed directly to the candidates themselves, or to other voters - would clearly be within the scope of 'speech and expression'; and there is also no doubt that 'speech and expression' can take many forms besides the verbal. But although it is important for the average voter to be able to speak out in that way, that will not directly bring candidates into office or throw him out of office; and he may not be persuasive enough even to convince other voters. In contrast, the most effective manner in which a voter may give expression to his views, with minimum risk to himself and his family, is by silently marking his ballot paper in the secrecy of the polling booth. The silent and secret expression of a citizen's preference as between one candidate and another by casting his vote is no less an exercise of freedom of speech and expression than the most eloquent speech from a political platform. To hold otherwise is to undermine the very foundation of the Constitution."

On the Commissioner of Election's role and on whether he should have "insisted on the poll being held as scheduled", the verdict said: "While I appreciate the difficult situation in which he was, nevertheless it is necessary to remember that the Constitution assures him independence, so that he may fearlessly insist on due compliance with the law in regard to all aspects of elections - even, if necessary, by instituting appropriate legal proceedings in order to obtain judicial orders. But the material available to this court indicates that he made no effort to ascertain the legal position, or to have recourse to legal remedies."

Yet another definitive interpretation of the 1978 Constitution was the delinking of the immunity granted to the Executive President from immunity from suit and from immunity for persons who implement orders of the Executive President.

Making it clear that judicial reviews were not inconsistent with Article 35, which gives the Executive President immunity from suit, the Supreme Court ruled: "It is the respondents who rely on the Proclamation and Regulation and the review thereof by the court is not in any way inconsistent with the prohibition in Article 35 on the institution of proceedings against the President." By holding that those who implement the orders of the President could be held legally responsible for their actions, the Supreme Court has, in effect, placed a check on the Executive Presidency.

Constitutional lawyer and Member of Parliament representing the Tamil United Liberation Front (TULF), Dr. Neelan Thiruchelvam, describing the judgment as one that "has far-reaching legal and constitutional implications", pointed out that the court "very clearly and unambiguously defined the powers of the Commissioner of Elections who had been accorded independence and should therefore not act arbitrarily in the exercise of his powers. The court held that the Commissioner not only erred in postponing the elections upon the enactment of an Emergency Regulation of the President, but also tamely acquiesced, without examining the legality of the regulation."

He added: "The court also held that the Commissioner did not act in good faith when he suspended postal voting even before the regulation had been enacted. This is the first instance when such strong strictures questioning the judgment and the good faith of the Commissioner of Elections has been passed by the apex court."

Yet another important consequence of the verdict, Dr. Tiruchelvam pointed out, was that the court held that the Emergency Regulations could not be invoked to postpone indefinitely the holding of Provincial Council elections. The court further held that "Emergency Regulations are subordinate legislation, which cannot override the provisions of the Constitution, nor can they take the form of an administrative order or direction."

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