WIJESEKERAAND 14 OTHERS V GAMINI LOKUGE, MINISTER OF SPORTS AND PUBLIC RECREATION & 20 OTHERS

WIJESEKERAAND 14 OTHERS V. GAMINI LOKUGE, MINISTER
OF SPORTS AND PUBLIC RECREATION & 20 OTHERS

SUPREME COURT
SHIRANEE TILAKAWARDANE, J.
lMAM, J. AND
SURESH CHANDRA, J.
SC (FR) APPLICATION NO. 342/2009
NOVEMBER 15TH, 2010

Fundamental Rights - Article 12(1), Article 14 (1) (a), Article 126 (2) of the Constitution - where a person alleges that his fundamental right has been infringed or is about to be infringed by executive or administrative action, he may apply to the Supreme Court within one month thereof, for relief or redress, by way of petition. - locus standi.

When this Application was taken up for argument, the Respondents assailed the Application on the following preliminary objections:

(a) The Application is out of time and therefore is time barred;

(b) The Petitioner has no locus standi to institute and/or to continue the Application; and

(c) The Petitioner has failed to show an infringement of his fundamental right guaranteed under Articles 12(1) and/or 14 (1)(g) of the Constitution.

Held:

(1) In determining the time limit of one month in Article 126(2), if the violation is of a serious nature, affecting material rights which are pertinent and critical to the Petitioner, where mala fides, bias or caprice can be established and if it is a continuing violation, the Supreme Court will not dismiss the application in limine, without at least considering the grievance of the Petitioners, based on non-compliance with Article 126(2).

(2) The substantive injustice alleged to have been suffered upon the Petitioners warrants the Court's review of it. Locus standi exists.

Per Shiranee Tilakawardene, J.

"...... the opinion of this Court is as regards to standing or locus standi in fundamental rights Applications, the interest of justice mandates this Court's focus on the potential injustice canvassed by the applicant, and not on the interest of the applicant and, therefore, in light of the foregoing case law this Court finds that so long as the applicant of a fundamental right Application comes before this Court in good faith, on a matter or matters affecting a broad spectrum of people, and where special and or exceptional circumstances exist, such as where the matter impacts, ...... standing is to be allowed .."

(3) The Petitioners have provided in their pleadings matters that need to be at least considered relating to whether the Petitioners are entitled to relief from violation of their fundamental rights guaranteed by Article 12(1), 12(2) and 14(1)(g). Therefore the petitioner should be given the opportunity to be heard on whether there has been a violation of his fundamental right.

(4) Fundamental Rights Applications must be seriously considered before they are brushed off in limine without affording the Petitioners the opportunity to present their case.

(5) Per Shiranee Tilakawardane, J. -

"The rule of law is and must after all be characterized with the principles of supremacy of the law, the quality of the law, accountability to the law, legal certainty, procedure and legal transparency, equal and open access to justice to all, irrespective of gender, race, religion, class, creed or other status".

APPLICATION under Articles 17 and 126 of the Constitution.

Cases referred to:

(1) Gamaethige u. Siriwardena and other- (1988) 1 Sri L.R. 384

(2) Sugathapala Mendis and another u. Chandrika Bandaranaike Kumaratunga and others - S.C.F.R. 352/2007

(3) Narendrakumar v. Ziyard and others - (2000) 1 Sri L.R. 251

(4) Bulankulama v. Secretary, Ministry of Industrial Development (2000) 3 Sri L.R. 243 

(6) Kottabadu Durage Sriyani Silva v. Chanaka Iddamalgoda - 21 SC (FR) 471/2000

 Upul Jayasuriya with Manoj Bandara instructed by Aparajitha Ariyadasa for the 1st Petitioner

Harsha Fernando, S.S.C. for the lst and 21st Respondents

Palitha Kumarasinghe, P.C. with Chinihaka Mendis instructed

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