AZATH SALLEY VS COLOMBO MUNICIPAL COUNCIL AND OTHERS

AZATH SALLEY VS COLOMBO MUNICIPAL COUNCIL
AND OTHERS

SUPREME COURT
DR. SHIRANI BANDARANAYAKE, J
AMARATUNGA, J AND
BALAPATABENDI, J
S. C. (F. R.) APPLICATION: 252/2007
JULY 1st 2008

Fundamental Rights - Constitution - Article 3, 17, 12(1), 28(b) - Violation of fundamental rights guaranteed under Article 12(1) of the Constitution - Equality before law and equal protection of the law to all persons - Article 126(2) of the Constitution - The Judicial review of violations of fundamental rights by executive or administrative action - Article 17 of the Constitution - Remedy for the infringement of fundamental rights by executive action. - liberal interpretation? - Entrenched provisions in the Constitution.

The petitioner, a former Deputy Mayor of the Colombo Municipal Council and a rate payer to the Colombo Municipal Council complained of infringement of his fundamental rights and of the residents of the Colombo Municipality area guaranteed in terms of Article 12(1) of the Constitution due to the failure of the respondents to remove a large number of unauthorized hoardings erected, and granting of purported approval for the erections of hoardings and the display of advertisements, in violation of the By - laws and guidelines of the Colombo Municipal Council.

Held

(1) Article 126(2) of the Constitution must be given a broad and expansive interpretation keeping in line with the development that had taken place in the arena of Public Law.

Per Dr. Bandaranayake, J.-

    "A strict interpretation of Article 126(2) of our Constitution would no doubt indicate that the judicial review of violations of fundamental rights by executive or administrative action is restricted, and there is no locus standi for an outsider to obtain

    relief in terms of the Articles of the Constitution. Such a strict interpretation would undoubtedly restrict the applicability of the fundamental rights jurisdiction, and in my view, time is opportune to forge and adopt a liberal interpretation for the purpose of making fundamental rights more meaningful for the majority of the people."

(2) As Article 126(2) of the Constitution refers to the infringement of a fundamental right of a 'person', it must be read with Article 17 of the Constitution, which is an entrenched provision and deals with the remedy for the infringement of fundamental rights by executive action.

(3) The concept of public trust, is an accepted doctrine that the resources of the country belong to the people; Sri Lanka's sovereignty is in the people in terms of Article 3 of the Constitution and is inalienable and includes the powers of the government, fundamental rights and the franchise, and the people have committed the care and preservation of their resources to the organs of the State, which are their guardians or trustees.

(4) It is the fundamental duty of the 1st to 5th respondents to preserve and protect public property and combat misuse and waste of public property as specified in Article 28(d) of the Constitution.

(5) The failure of the 1st to 5th respondents to remove unauthorized hoardings erected and granting of purported approval for the erection of hoardings within the city limits of the 1st respondent council, contrary to applicable by-laws and guidelines had infringed the fundamental rights of the petitioner's and of the residents' of the Colombo Municipal Council area guaranteed in terms of Article 12(1) of the Constitution.

(6) Conditions applicable to hoardings situated in public places would be applicable to hoardings erected on private places if such hoardings are fronting the public street and are exposed to public view.

(7) Failure to remove unauthorized hoardings and granting approval without giving due consideration to the by-laws and guidelines which

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