An evaluation of State Accountability in ensuring National Security.
(SCFR163/19,165/19,166/19,184/19,188/19,191/19,193/19,195/19,196/19,197/19,198/19,293/19)
TOn 12.01.2023 a bench of seven judges of the Supreme Court comprising of Chief Justice Jayantha Jayasuriya, PC, and Justices B.P. Aluwihare, PC, L.T.B. Dehideniya, Murdu N.B. Fernando, PC, S. Thurairaja, PC, A.H.M.D. Nawaz, A.L. Shiran Gooneratne, delivered the highly anticipated judgment pertaining to Easter Sunday Bomb Attacks in 2019. These Fundamental Rights cases had been instituted against various State Officials in respect of the manner they had carried out their official duties during and prior to the events leading up to the said bombings. The State Officials named as Respondents in these actions included Maithripala Sirisena (President in 2019), Hemasiri Fernando (Secretary to the Ministry of Defence), Pujith Jayasundara (IGP), Sisira Mendis (Chief of NI), Nilantha Jayawardena (Director, SIS).
The said Fundamental Rights actions had been instituted by Religious Leaders, Civil Activists, victims and families of the victims of the bomb blasts alleging among other things that the inaction/ omission of the Respondents to act with due care and attention to ensure the national security of Sri Lanka had resulted in the tragic events of April 21st 2019, where terrorist bomb explosions in churches and hotels had resulted on over 200 deaths and extensive injuries and damage to property. The Petitioners main contention was that the Respondents’ reckless failure to prioritize and act on intelligence received prior to the bombing was in effect a betrayal of public trust which in turn violated the Petitioners Fundamental Rights as enshrined in Chapter III of the Constitution. After hearing the preliminary objections, the Supreme Court granted Leave to Proceed in respect of Article 12(1) (Equal protection of the Law) and Article 14(1)(e) (Freedom either by himself or in association with others, and either in public or in private, to manifest his religion or belief in worship, observance, practice and teaching) of the Constitution.
Having considered the submissions made by all parties over a period of three years, the Supreme Court in its judgment proceeded to evaluate several provisions of legislation, subsidiary legislation and several Articles of the Constitution under which the Respondents were statutorily obliged to carry out their duties pertaining to national security. The Court has evaluated Articles of the Constitution including Article 4(b) (Executive power of people, including the defence shall be exercised by the President. i.e., Minister himself can direct and exercise control over the Secretary), Article 30 (1) (There shall be a President of the Republic of Sri Lanka, who is the Head of the State, the Head of the Executive and of the Government, and the Commander-in-Chief of the Armed Forces), Article 44 (2) (The President shall, in consultation with the Prime Minister, appoint from among Members of Parliament, Ministers, to be in charge of the Ministries so determined), Article 52 (2) (Secretary to the Minister of Defence has supervision over the departments of government or other institutions in the charge of his Minister). The Court also considered the applicability of Gazette No.2103/33 dated 28.12.2018 (Explained Article 43 of the Constitution as, former President had set out the duties, functions, subjects, departments, instructions and responsibilities for Ministers to implement specific laws of Parliament).
When evaluating the liability of the Respondents Court took cognizance of both Sri Lankan and foreign precedents, such as, UK case Carltona Ltd v Commissioner of Works which sets out the Carltona principle; that the acts of government departmental officials are synonymous with the actions of the minister in charge of that department. Similarly, court also do refer the Re Nineteenth Amendment to the Constitution (Special Determination 04/2015 to 10/2015, 14/2015 to 17/2015 & 19/2015) which states that, President must be in a position to monitor or give directions to others who derive authority from the President and also court observed that in SC Ref 2/2003, which states the Executive power including Defence of Sri Lanka is vested and reposed in the President.
Having concluded the evaluation, the Supreme Court declared that all the aforementioned Respondents above named have violated the Fundamental Rights enshrined in Articles 12(1) and 14(1)(e) of the Constitution. It is notable that the Court expressly indicated its displeasure towards the aforementioned Respondents’ conduct during the period before and throughout the said Easter Sunday Bombings and made special reference to instances which demonstrated the lackadaisical attitude of the said Respondents in respect of urgent matters pertaining to National Security.
When considering the matter of compensation, the court made reference to the judicial device of Constitutional Tort namely violation of the Fundamental Rights of a person or citizen by the State and/or state is vicariously liable for the acts of its agencies or employees. The Supreme Court also went on to hold that the State was liable to compensate the victims of the attacks for the incalculable harm and damage caused to people and property on the basis of just and equitable jurisdiction. The court also went on to refer to the “Right to Life” as another basis on which State Liability is predicated.
FThereafter the Supreme Court proceeded to make orders directing for a Victims Fund to be established at the Office for Reparation to award compensation in a fair and equitable manner to the victims and their families. The Court also directed the former President, IGP, Secretary of Defence, CNI, and State to pay Rs. 100 million, Rs. 75 million, Rs. 50 million, Rs. 10 million, and Rs. 1 million respectively to the Victims Fund. The Office for Reparation was directed to investigate the alleged underpayment and non-payment, and invite any generous benefactors and donors to contribute and also a progress report to be made available to Court within 6 months. The Attorney General was also directed to coordinate and take disciplinary action against Nilantha Jayawardena (Former Director, SIS).
The Supreme Court directed on the date of the judgment, that the case be taken up within 6 months of the date of the judgment to ascertain the status of compliance of the above orders.
For further information, please contact:
Dasuni Wijayasriwardena, Partner, D. L. & F. De Saram
dasuni@desaram.com
