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25th April 1999

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Where the minister has no power

Justice this week comments on a recent decision of the Court of Appeal that is significant in the area of industrial law and publishes in addition, a synopsis of an unreported fundamental rights judgment of the Supreme Court and notes on legal developments of interest in the region and internationally.

By Kishali Pinto Jayawardena

When seven workmen of Upali Newspapers Limited appealed to the Labour Tribunal in 1989, arguing that their employment had been unjustly terminated, it was as a matter of course. None would have guessed just how far their action would affect established principles of industrial law vis a vis the power of the Minister of Labour and the independence of the judiciary.

Workmen J.K. Vipula, I.G.P. Manjula, H.M Vipula, K.E.P.W. Jayawardena, P.D. Pemananda, M.H.D. Bandara and G.P.D.R. Janaka were all dismissed from service due to a variety of reasons. These ranged from unauthorised absence, unsatisfactory attendance, deliberately giving false information at the time of recruitment in order to obtain unfair advantages, improper conduct and intimidation and threatening a staff officer. All seven made separate applications protesting against their termination before the Labour Tribunal but while the applications were still pending, the Minister of Labour referred the matter for arbitration. The arbitrator then made an award against the workmen, resulting in them appealing to the Court of Appeal. The question was simple. Could the Minister of Labour refer an industrial dispute to an arbitrator while the matter was still in the process of being inquired into by a Labour Tribunal?

In a judgment delivered by the Court of Appeal (Upali Newspapers Vs Eksath Kamkaru Samithiya and others) late last month, the answer came unequivocally in the negative. Such a reference, it was stated, would constitute an interference by the Minister in the independence of the judiciary as enshrined in the Constitution which is paramount law. The award of the arbitrator was set aside and the reference made to him by the Minister declared bad in law.

This March judgment of Kulatilleke J. (with F.N.D. Jayasuriya J. agreeing) which upsets some two decades of established law giving the Minister the powers now taken away from him, proceeds on a commonsensical basis. It is pointed out that the Constitution specifically states that a judicial officer includes a president of a Labour Tribunal as well and provides for his appointment by the Judicial Service Commission. He is thus clearly a judicial officer exercising judicial functions and could no longer be regarded merely as a public officer, making the situation different to the time when the Industrial Disputes Act was enacted. The fact that recent appointments made by the Judicial Service Commission included eighteen Labour Tribunal presidents being appointed as Magistrates for the limited purpose of performing duties relating to the enforcement of their orders, is also referred to by the court in support of its reasoning. As judicial officers, any direction or interference with their functioning, except by a superior court is prohibited by Article 116 of the Constitution on pain of not only imprisonment but also civic disabilities. Accordingly, a Minister's reference of a dispute already before a Tribunal cannot be allowed. The Minister does not have unlimited or "wide powers" under the Act and past decisions to this effect cannot be followed now.

Stripped of its legalities, the recent decision by the Court of Appeal would significantly reduce ministerial powers in referring disputes to arbitrators appointed by him under the Sri Lankan Industrial Disputes Act, power that is often capable of misuse given the practicalities of politics in this country. Instead, the authority of a Labour Tribunal, the members of whom have a far greater independence of office, has been increased. Presidents of Labour Tribunals are appointed from among practising lawyers or labour officers and administrative officers with specified qualifications and years of practice. Unlike arbitrators, they hold permanent office and their appointment, dismissal and disciplinary control are vested in the Judicial Services Commission. Strengthening of their authority is therefore to be welcomed, particularly considering the nature of the disputes that are referred to them.

The decision also has important implications for the independence of the Sri Lankan judiciary as a whole. The use of Article 116 with specific reference to presidents of Labour Tribunals and their powers vis a vis ministerial authority is interesting. While one might not (disappointingly) be able to actually witness a Minister of Labour being visited with penal sanctions or civic disabilities as a result of his interference with the workings or proceedings of a Tribunal, the mere assertion of this capacity to punish would undoubtedly have a severe deterrent effect. Or so one hopes.

Making human rights a reality

The Concluding Statement issued by participants at the Judicial Colloquium on the Domestic Implementation of International Human Rights Norms held in Bangalore on December 30 1998 has been released recently by INTERRIGHTS, a UK based international human rights centre and a co-organiser of the Colloquium.

The Colloquium included judges of the superior courts of Sri Lanka and eminent lawyers as well as jurists from the region and from Australia, Canada, New Zealand, South Africa, Uganda, United Kingdom, the United States of America and Zimbabwe.

picture" Making Human Rights a Reality" was the challenge that was in the forefront of discussions of the participants in the colloquium. The colloquium was organised by INTERRIGHTS together with the Commonwealth Secretariat and the National Law School of India University, Bangalore, with the support of the Commonwealth Secretariat, the Canadian International Development Agency, the Ford Foundation and the Foreign and Commonwealth Office of the United Kingdom.

While reaffirming the general principles stated at past colloquia, the participants reiterated the universality of fundamental rights and freedoms which was declared to derive from the moral principle of each individual's personal and equal autonomy and human dignity. That principle transcends national political systems and is in the keeping of the judiciary. Again, it is the vital duty of an independent, impartial and well-qualified judiciary, assisted by an independent, well-trained legal profession, to interpret and apply national constitutions and ordinary legislation in harmony with international human rights codes and customary international law, and to develop the common law in the light of the values and principles enshrined in international human rights law.

It is also pointed out that the provision of equal justice requires a competent and independent judiciary and legal profession trained in the discipline of the law and sensitive to the needs and aspirations of all the people. It is fundamental for a country's judiciary and legal profession to enjoy the broad confidence of the people they serve. Public confidence in the judiciary depends not only on the institutional arrangements for protecting its independence from political pressures but also on the transparency and legitimacy of the manner in which judges are selected. Any mechanism, including judicial service commissions, should ensure that persons are selected because of their proven integrity, ability and independence and that the views of the existing judiciary are given appropriate weight.

Meanwhile the Concluding Statement also emphasizes that freedom of expression is essential to safeguard democracy and human rights. The protection of freedom of expression in its widest sense is a chief responsibility of the judiciary. In this same context, public interest litigation has a special role to play in protecting the human rights of disadvantaged sections of the population. Judgments in such cases should be based on clear constitutional and legal criteria; they should be enforceable and effective, keeping in mind the rights and interests of those not party to the litigation; and they should be subject to appeal or judicial review. The principles of human rights should moreover be brought into the daily activities of government and public officials alike, as well as of ordinary men and women.

Furthermore the jurisprudence of international and regional human rights bodies and the decisions of courts throughout the Commonwealth should be disseminated to judges, lawyers and public officials. In these ways a global culture of respect for human rights can be fostered. It is in this context that a South Asian charter of human rights, similar to regional human rights conventions elsewhere, would make a significant contribution to the protection of human rights throughout South Asia. The Statement concludes by reminding that the making of such a charter should be given a high priority.

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