CENTRE FOR ENVIRONMENTAL JUSTICE (GUARANTEE LTD) AND OTHERS

CENTRE FOR ENVIRONMENTAL JUSTICE (GUARANTEE LTD) AND OTHERS

Vs.

MINISTER OF BUDDHASASANA, RELIGIOUS AND CULTURAL AFFAIRS, AND URBAN DEVELOPMENT AND HOUSING,
AND ECONOMIC POLICIES AND IMPLEMENTATION AND OTHERS

SUPREME COURT
AMARASEKARA, J.
WlCKREMASINGHE, J.
DE SILVA, J.
SC/FR/109/2021
OCTOBER 25, 2021

Fundamental rights-Amendment of petition-Role of the Attorney General-Role of the Supreme Court in fundamental rights applications

The petitioners primarily sought to impugn a Cabinet Memorandum whereby the approval of the Cabinet of Ministers was sought to withdraw all cases in which legal action is being taken in respect of tamed elephants and to hand over the animals to their present owners according to the conditions of transfer.

When this application was supported for leave to proceed, the Attorney General moved court to dismiss the application in limine stating that the Cabinet decision had been taken before the petitioners filed the application and the Cabinet of Ministers are not parties to the application.

An amended petition was filed subject to objections. The Attorney General took up three objections.

Held:

1. The first objection for non-joinder of parties cannot be maintained in the absence of a public source through which the petitioners could have verified whether a cabinet decision had been made. The petitioners sought to file an amended petition as soon as the cabinet decision was brought to their attention.

2. The second objection was that both the original and amended petitions are time barred. The impugned cabinet memorandum is dated 12.03.2021 and the original petition was filed on 09.04.2021. The Cabinet decision was made on 15.03.2021 and the amended

petition was filed on 20.08.2021. The petitioners say that they became aware of the Cabinet decision only when it was disclosed in open court on 20.07.2021. Time starts to run from the point when the petitioners became aware of the infringement or imminent infringement of their fundamental rights.

3. The Cabinet decision itself is not the act which would constitute an infringement of the fundamental rights of the petitioners. It is only when the Attorney General acts on the impugned Cabinet decision that there may be an infringement of the fundamental rights of the petitioners. The Supreme Court has recognised the notion of a continuing violation of fundamental rights. There are situations where imminent infringements are also continuing. Imminent infringements continue until a fundamental right is violated. The amended petition is not time barred.

4. The third objection is that the amended petition has been filed to cure the defects in the original petition. This is a fundamental rights application filed in the public interest. The petitioners allege that the impugned Cabinet Memorandum and decision are an attempt at political interference in national legislation and there is a breach/ imminent breach of the rule of law.

5. The Attorney General is vested with extensive statutory powers in relation to criminal investigations and prosecutions. Such powers are held in the public trust and must be exercised for the due administration of justice according to the rule of law which is the basis of the Constitution. Any form of dictation from whatever quarter will compromise the independence of the Attorney General unless such dictation is permitted by law. Any compromise of the independence of the Attorney General will have a negative impact on the rule of law.

6. According to Article 4(d) of the Constitution, it is the bounden duty of the Supreme Court to secure and advance the fundamental rights guaranteed by the Constitution. The court must not allow procedural defects to shackle its constitutional duty to examine the allegation of the petitioners at the stage of leave to proceed.

Cases referred to:

1. Siriwardena and others v. Brig. J. Rodrigo and others [

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