2001 Referendum was invalid: Supreme Court
By Laila Nasry
In a judgment delivered this week the Supreme Court held that the
proclamation made by President Chandrika Kumaratunga declaring a
referendum in August 2001, to determine whether the country needs
a new constitution, was invalid.
It held that the question to be posed to the people did not fall
within the scope of the Referendum Act.
validity of the referendum in a fundamental rights application filed
by attorney-at-law Sujeewa Senasinghe who alleged that in spite
of being a bystander the police had attacked him during a procession
organised in July 2001 in protest at the proposed referendum, court
further held that the ban on processions was inoperative as the
referendum was merely a purported one and that the police in using
firearms (directed above the knee) to disperse the crowd had acted
unjustifiably, unreasonably, excessively and in violation of departmental
delivered by Justice Mark Fernando with Justices D. P. S. Gunesekara
and C. V. Wigneswaran agreeing stated, "all powers and discretion
conferred upon public authorities and functionaries are held upon
trust for the public, to be used reasonably in good faith and upon
lawful and relevant grounds of public interest and they are not
unfettered, absolute or unreviewable."
argument put forward by the respondents that the decision to hold
a referendum and the question duly formulated come within the ambit
of political questions and therefore not reviewable by court, it
was stated that questions of legality are for the judiciary alone
to determine, and political questions are left to the people and
their elected representatives.
judges were mindful of the fact that when the referendum was called
Parliament had been simultaneously prorogued for more than a fortnight
after the date of the referendum denying the House the opportunity
to examine the political questions.
held, "in that background declining the court's jurisdiction
on the basis of the political questions argument would have placed
the proclamation beyond review thus undermining the Rule of Law."
the impugned question 'Is a new constitution as a matter of national
importance and necessity needed for the country?' which the Referendum
Act stipulates must be capable of being answered by a 'yes' or a
'no', court was of the view that both a 'yes' answer or a 'no' answer
would lead to an ambiguous situation, with those answering 'yes'
agreeable to a new constitution but holding divergent views at to
what it should provide whilst those answering 'no' of the idea that
a new constitution was not needed, merely amendments to the existing
one or a new constitution was needed but was not of national importance
and necessity or a new constitution was not needed at all.
that "the purpose of a Referendum is to obtain the verdict
of the People and it would be a costly exercise in futility unless
it yields a meaningful result conveying the opinion of the people
with a sufficient degree of clarity and precision as to constitute
a mandate for future governmental action," thus held that the
referendum was invalid.
As to the procession,
court held that it was a legitimate exercise of freedom of speech
and expression and of peaceful assembly under Article 14 (1) (a)
and (b) of the Constitution and although Article 15 provides for
restrictions on fundamental rights it does not contemplate or authorise
It was stated
that the firing at the petitioner from 10 metres away when he was
not advancing towards the police was unrelated to any attempt to
disperse the protesters or prevent any specified offence. Further
such firing was contrary to the clear provisions of the Police Departmental
orders and in the circumstances the petitioner having suffered serious
injuries which required hospitalisation and surgery and consequential
loss and damage, was not capable of being excused or mitigated by
any bona fide belief that the protest was unlawful.
that the 1st respondent SSP Gamini Karunatilleke had not only acted
with high-handed disregard for Departmental orders but displayed
callous indifference to human suffering while suppressing a democratic
protest. Although the infringements were the consequence of improper
governmental decisions for which he was not responsible nevertheless
court held he had acted in bad faith, in excess and abuse of his
Rs. 235,000 as compensation, of which Rs. 20,000 was to be personally
paid by SSP Karunatilleke and the balance payable by the State.