Columns - FOCUS On Rights

Upholding the public good

By Kishali Pinto Jayawardene

The Public Trust doctrine, as articulated by several recent judgments of the Supreme Court, is, of course, no new concept to Sri Lanka. The Supreme Court's invocation of its doctrine against arbitrary actions of the political executive was however infrequent during 1999 - 2004, excepting some consistent judgments of one or two judges who have since then retired. However, its resurgence at its point of time needs to be welcomed, albeit with some necessary cautions.

The Public Trust Doctrine

Generally, the 'public trust' doctrine is to the effect that powers vested in public authorities are not absolute or unfettered but are held in trust for the public, to be exercised for the purposes for which they have been conferred, and that their exercise is subject to judicial review by reference to those purposes. Accordingly, executive power is also necessarily subject to fundamental rights review in general, and to Article 12(1) of the Constitution in particular, which guarantees equality before the law and the equal protection of the law. The "protection of the law" would include the right to notice and to be heard. Administrative acts and decisions contrary to the "public trust" doctrine and/or violative of fundamental rights would be in excess or abuse of power, and therefore void or voidable.

Affirming of the doctrine in past cases

This doctrine has been earlier affirmed by the Court in a number of cases. Thus, for example, the actions of the road development authority in not giving notice to landowners and affording them a right to be heard before their lands were taken from them was declared to violate this doctrine in no uncertain terms (see Heather Mundy vs Central Environmental Authority and Others SC Appeal 58/03, SC Minutes of 20.01.2004. SC Appeal 58/2003, judgment of Justice Mark Fernando with Justices Ismail and Wigneswaran agreeing).

Similarly, another instance was when then President Kumaratuga was unwise enough not to allow a television crew from a private television station into the President's House to cover the swearing in of then Prime Minister Ranil Wickremesinghe in early December, 2001. The refusal was based on a direction by President Kumaratunga that particular private media personnel who were perceived as being antagonistic to her Presidency should not be allowed into the President's House to broadcast or report the swearing in of the Premier, who came from a coalition headed by the United National Party (UNP), the main political party opposed to the Peoples Alliance headed by President Kumanatunge. The majority view (by Justice Wigneswaran with a concurring opinion by Justice Shiranee Tillekewardene) held that this refusal constituted "naked discrimination" for extraneous political or personal considerations, which cannot be condoned from persons "however highly placed". Violation of the rights of the barred media personnel to equality before the law and freedom of speech and expression was found.

The Court declared that the swearing in ceremony was an official function taking place in an official residence and therefore that it was not open for the President to deny that the occasion was a public function and arbitrarily preclude some media persons from coverage (see M.N.D. Perera vs Balabatabendi and Others, SC(FR) No 27/2002, SCM 19.10.2004, judgement of Justice CV Wigneswaran with Justice Shiranee Tillekewardene agreeing and Justice N Dissanayake dissenting). Significantly, the majority view held that the mere directive of the President is not sufficient to justify unconstitutional action by minions.

Presidential actions should not be vindictive or spiteful

Following previous case law (See also in this connection, Karunatilleke vs Dissanayake [1999] 1 Sri LR and Senasinghe vs Karunatilleke, SC 431/2001, SCM 17/3/2003), it was ruled that a Presidential directive cannot be a defence to subordinate action if it is manifestly and obviously illegal. Thus, Justice Wigneswaran reasoned that 'a leader of a sovereign country is not expected to be parochial nor vindictive nor spiteful whatever the provocations of his subjects may be, real or imaginary. Leaders are no doubt, human beings. But they are humans clothed with power and privileges granted by their compatriots out of their love and respect. This power is not to be used to harass such compatriots.'

Need for a dedicated constituency of public opinion

As pointed out above, judgments of the Court have asserted these principles time and time again in this country and this recent crop of judgments assert no extraordinarily new principles in that regard. Yet, at times, the value of this jurisprudence seems swept away by the turbulent pressures that beset not only our political order, but indeed, the very judicial system itself. As we have seen, judgments by the Supreme Court notwithstanding, a corrupt political executive will proceed on its juggernaut way if the impact of such decisions is limited to paper alone.

Instead, for such judgments to have their full impact, there must be a dedicated constituency of public opinion, (as distinguished from easy if not fickle public accolades in response to individual 'good' judgments), that will consistently support a judiciary which is independent not only in constitutional theory but also in fact.

The basis of such independence is proven distancing from the 'madding crowd' and certainly, a total rejection of political as well as personal bias and prejudice. Undoubtedly, these must remain as constant warnings to a Sri Lankan public who have witnessed the country's justice system being subjected to extreme turbulence within the past decades.

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