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CBK’s 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.

Examining the 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 orders.

The judgment 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."

Reviewing the 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.

However, the 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.

The judges 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."

Scrutinising 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.

Court stating 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 unreasonable restrictions.

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.

Court held 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 powers.

Court awarded 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.

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