Sri Lanka Anti-Corruption Program

The majority decision – or rather, order – in the MP’s Pay Hike Case, refusing leave to proceed, has given rise to many more questions than it has answered.

As a general issue, being a fundamental rights case should the order refusing leave to proceed have set out the decisions of the majority on the questions which arose as well as the reasons for those decisions? Yes, certainly. An order granting leave to proceed is not a final decision on the rights of the parties but only a tentative decision that there is an arguable question, of law or of fact, which deserves further consideration; it would be enough to identify that question (e.g. “leave to proceed is granted upon the alleged infringement of Article xyz”) and reasons need not be stated But an order refusing leave is a final decision – an unequivocal decision that there is no merit at all in the petitioner’s case; that he has failed to make out even an arguable case. That order must set out the decision on each of the questions set out in the petition (and argued by Counsel). Natural justice requires also that supporting reasons be stated. Justice requires that the petitioner must know on what points he has failed, and why he has failed. A final order merely stating “leave to proceed is refused” would not be a judicial order but an arbitrary one.

This is particularly important in the highest Court because questions of binding precedent are involved. In the instant case, one question—a serious, important question—was whether a resolution of Parliament can be challenged in a fundamental rights case. The order does not afford any guidance to prospective litigants as to what the law is on that point; what the majority decided on that point; whether the majority decided the case on some other point (e.g. that in any event the salary increase was modest and/or justified). So when the next pay hike is granted another petitioner will try his luck, and neither he nor the judges will have any guidance from this order.

An interesting question arises whether the present petitioner may make an application asking the majority to state its decisions, with reasons, on each point.

A second issue relates to the interpretation of Article 68, which enables Parliament to provide “by law or by resolution” for the remuneration of MP’s. Had Parliament attempted to fix remuneration by law, a Bill for that purpose would have had to be gazetted, citizens would have had the right to challenge the Bill on the ground that it was in violation of fundamental rights or otherwise inconsistent with the Constitution, and the Supreme Court would have had to make a Determination on all those issues with reasons. The Bill could thereafter be passed only in accordance with that Determination, and once passed the resultant Act could not be further challenged A resolution fixing remuneration does not have any of those safeguards, and correspondingly does not enjoy the immunity from challenge which an Act of Parliament enjoys. A resolution under Article 68 is therefore a form of Parliamentary action inferior to legislation, and enjoys no immunity from judicial scrutiny.

Did the majority decide that vital question in regard to the jurisdiction of the Supreme Court? If it decided that the Court had no jurisdiction, what were its reasons? Could Parliament do by resolution what it cannot do by legislation? If a Bill could have been challenged as discriminatory why should a resolution to the same effect be immune from challenge on the identical grounds? Can Parliament in future resort to resolutions as a means of short-circuiting the procedure for passing Bills? Delegated legislation even after approval by Parliament is subject to judicial review on numerous grounds – how then can resolutions be exempt? Resolutions under Article 68 have not been made constitutionally immune from judicial review unlike resolutions under Article 81 – can such immunity be granted by judicial interpretation?

A third issue arises from submissions reportedly made by Senior State Counsel in answer to Court – that the pay hike involved issues of law and not of morality although although the increase shocked the conscience of everybody. Under the fundamental rights jurisdiction the Court is empowered to make a “just and equitable” order. Equity has traditionally and historically involved an appeal to conscience. Does the State wish the Court to ignore conscience in future?

A fourth issue arises from a provision in the resolution that if the remuneration of judges is increased, the remuneration of MP’s will automatically increase correspondingly. That involves a manifest abdication of power. If salaries of judges are increased for reasons quite inapplicable to MP’s, MP’s will nevertheless receive another pay hike. Further, Parliament may by resolution directly increase the remuneration of MP’s without increasing the salaries of judges. Besides, in practice the Cabinet approves allowances of judges, whereupon – in terms of the resolution – MP’s will again get a pay hike without a decision by Parliament.

A fifth issue is that in any event the resolution could not have been given retrospective effect.

A sixth issue arises from the petitioners’ complaints, that salary increases solemnly promised to public servants were not paid and that (if the resolution was allowed to stand) public servants should be given salary increases proportionate to the MP’s. Those complaints related to demands for equal treatment on the (alternative) basis that the resolution was valid. Why did the majority refuse leave to proceed at least on those points – differential treatment in that the MP’s pay hikes are prospective and retrospective while public servants were even denied promised prospective increments, and that there is neither equality nor proportionality so far as public servants are concerned. If proportionality was permissible and proper as between MP’s and judges, why not between MP’s and public servants?

The President, in his Budget speech delivered in Parliament, called upon every section of the nation to make sacrifices in the national interest. Parliament passed the Budget, but within days responded to the Presidential call for sacrifice by this pay hike resolution!

Sonali Fernando

Melbourne

This entry was posted on Wednesday, May 16th, 2007 at 2:09 am and is filed under Uncategorized. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.