The Legal Column

14th July 1996

How final are SC decisions?

By Kishali Adhikari

Seldom had a case invoked more speculation in political and legal circles in recent times than the Airport Taxi Drivers case. It had all the classic ingredients of high public drama.... a tug of war between two senior Supreme Court Judges, an extremely angry Deputy Minister now being tipped for a Cabinet post, and a whole host of other high-falutin concepts such as independence of the judiciary, privileges of Parliament and the like.

Little wonder it was then that the decision of the Supreme Court delivered last Tuesday was awaited with baited breath. The five member bench made its opinion unanimously clear. The Supreme Court explained in painstaking detail why it did not have the statutory power not the inherent power to review the revision application of Deputy Minister of Ethnic Affairs and National Integration Jeyaraj Fernandopulle. The Court also showed its displeasure at the manner in which the revision application had been allowed. Justice A. R. B. Amerasinghe delivering the judgement that spanned fifty three pages declared that the law, practice and tradition of the Supreme Court had not been adhered to in the instant case. The application for review should have been considered by the Bench that heard the case in the first instance. Judicial comity and the need to preserve the status of the Supreme Court as the final Court of the land compels observances of this legal tradition.

"We have advanced beyond graceful politeness and considerateness in intercourse as a justification of this practice," opined Justice Amerasinghe.

Tuesday's Supreme Court decision would hopefully signal the end to a potentially explosive situation that had dragged on for well over an year. On February 1995, when the Airport Taxi Cooperative Society and its members went before the Supreme Court alleging that their fundamental rights had been violated by members of a similar society on the orders of Deputy Minister Fernandopulle and others, neither group could have imagined how much furore the case would cause. The Bench assigned to hear the fundamental rights application comprised Supreme Court Justices Mark Fernando. A.S. Wijetunge and Priyantha Perera. Justice Fernando had by that time come under fire from the Government for being a "pro-UNP Judge".

It was only a short while before that President Chandrika Kumaratunga had accused one particular Supreme Court Judge over national television of giving orders unfair to her Government in the liquor licences cases. Though Justice Fernando was not specifically named as such, the implications were obvious. As it so happened however, the President was factually incorrect as not one Judge but several Judges had made the orders in the cases in question.

Against this scenario the fundamental rights application against Deputy Minister Fernandopulle whose flamboyance as an opposition member had not noticeably lessened in Government came as a spark to an already well stacked bon fire. After argument in the case was concluded but before judgement, the Deputy Minister who is famous for his volatile temper in the House launched into scathing personal criticism of Justice Fernando. The Deputy Minister's remarks would undoubtedly have constituted contempt of court if he had not been protected by parliamentary privilege. Shortly thereafter, a majority of the Supreme Court delivered a judgement adverse to the Deputy Minister, finding him liable on the basis of certain incautious remarks that he had made in Parliament which contradicted the statements that he made to Court. Justice Mark Fernando delivered that part of the judgement which admitted the Parliamentary statements while Justice A. S. Wijetunge agreed. Justice Priyantha Perera however dissented on the basis that Fernandopulle's remarks were only a "fighting reply" to jibes thrown at the Deputy Minister by opposition members and not a considered reply to an adjournment question for example.

"To take these remarks seriously would be to gravely impeach the freedom of speech and debate in Parliament," Justice Perera observed. Following the judgement, Deputy Minister Fernandopulle petitioned the Supreme Court for review of that part of the judgement that went against him. At that time, Acting Chief Justice Tissa Bandaranayake in a somewhat unprecedented departure from normal practice allowed the review application without consulting the original Bench or making them part of the fuller Bench. Justice Bandaranayake also included himself as a member of the revision Bench even though he later withdrew from the case.

Tension meanwhile further heightened as acrimonious correspondence on the allowing of the revision application and other matters between Supreme Court Justice Tissa Bandaranayake and Mark Fernando revealed a degree of more than usually bitter animosity. Speculation in Hultsdorf became rife. When the revision application comes up before the Supreme Court in July, how will it act? Will history repeat itself where on past occasions, the highest Court of the land had bowed its head to a juggernaut executive intent on having its own way? On Tuesday, the Supreme Court showed its legal will in no uncertain terms.

"This Court has no statutory nor inherent powers to rehear, revise, review or further consider its earlier decision", said the Court.

Commenting on the action of Supreme Court Justice Tissa Bandaranayake in allowing the revision application in the first place Justice Amerasinghe giving the judgement stated, "I find it difficult to understand why his Lordship the Acting Chief Justice acted in disregard of an inveterate practice of the Court that this Court has regarded as having hardened into a rule. I respectfully regret my inability to accept his Lordship's explanations.... namely that the Bench was divided in its opinion for excluding the Honourable Judges who heard the case from consideration of the petition before us.

He pointed out that it is only where the original Judges cannot be available due to absence abroad or retirements or some other such reason that the matter can be reconsidered by a different Bench.

While the Supreme Court made its decision clear on this point, if nevertheless went on to examine this revision application instead of sending it to the original Bench. The Court warned however that it was only doing so due to the exceptional circumstances of the case and stressed that on no account should this be looked upon as an example to be lightly followed.

"What was the Honourable Acting Chief Justice attempting to achieve by referring this case for revision?" the Supreme Court questioned.

Justice Tissa Bandaranayake had mentioned two reasons as to why he had referred the case for revision. First because the Judges on the original Bench had not been unanimous in their opinion with one Judge merely agreeing with the other and the third strongly dissenting with the view of both. Second, because he felt that the question in dispute was one of general and public importance, the Supreme Court disagreed with this line of reasoning.

"It is not open to anyone to devalue a decision of the Court on the assumption that one or more Judges have merely agreed with the opinion of another Judge", said the Court pointing out that it would indeed be regrettable if a Judge cannot say that he agrees with his fellow Judge without being accused of mindless and mechanical behaviour.

The constitution itself provides that a judgement of the Supreme Court shall, when it is not a unanimous judgement, be the decision of the majority. Whether that Bench constitutes three, five or more Judges does not make any difference. While one division of the Court may refuse to follow another division it should do so only in the most exceptional of circumstances. Otherwise "the Supreme Court would no longer be a Court of Justice" but a "Court of Judges".

The Supreme Court went on to emphasize that the general or public importance of a matter does not give the Chief Justice the authority to constitute an appellate division of the Supreme Court to review and revise its own decisions. The decisions of each Bench of the Supreme Court on any matter is final. The Chief Justice is Head of the Judiciary and as such he has unique powers and privileges, but he has no superior power vis a vis the other Judges of the Court in the matter of adjudications. Consequently, the Chief Justice or any Supreme Court Justice acting in his stead cannot refer a matter to a Bench of five or more Judges for the purpose of reviewing a concluded matter of the Court. Whether the question involved is a matter of general or public importance makes no difference.

"To use (the constitution) in that way would be to use the legislative power in order to create an additional right of appeal which the constitution did not confer and indeed in effect to create a right of appeal with leave from the Chief Justice sitting alone", stated Justice Amerasinghe quoting from case law.

One main reason why the Supreme Court rejected the review application therefore was that because it was a concluded matter. As the Court pointed out, in all fifty eight appeals, proceedings or matters heard in review since 1978 there has not even been one concluded matter referred to the Court for review. The power of review lies in this instance only in respect of pending matters.

The Court has thus no statutory jurisdiction to review its own concluded orders. It has no inherent powers to do so either, the Supreme Court said. The inherent powers of the Court could be exercised to correct decisions made in ignorance of some law or judicial decision. But it was not so in the instant case. There was adequate discussion on the matter of parliamentary privilege in the light of the relevant laws and judicial decisions.

But what if the majority of the original Bench had reached a wrong decision in their agreeing to admit Fernandopulle's Parliamentary statement against him? "Merely, because a decision is wrong, it is not a ground for the exercise of our inherent powers", said the Supreme Court.

Though the Court is a "Court of Justice" and should intervene to prevent injustice, it must use its powers in accordance with sound legal principles and not arbitrarily. "No Court much less any judicial officer including the Chief Justice may disregard the law of the land.... for justice must be done according to law", said the Supreme Court on Tuesday.

The decision of then Acting Chief Justice Tissa Bandaranayake to suspend the operation of the order of the original Court in the Airport Taxi Drivers case was also lifted. The decision of the original Court will now be given effect. And rumbustious comments or political bravado in Parliament might now have extremely dangerous conseqences for Government and Opposition politicians alike.

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