This article is based on the recent case on the Pay Hike for MPs. The Supreme Court was divided in rejecting the application made by Weliamuna. The S.C did not give reasons as they should. This response is based on an article which was published in the Island newspaper as a letter from me on the judgment on case. The case was filed by Weliamuna on behalf of trade unions. I give below an opinion received from a lawyer in Australia- M/s Sonali Fernando, formerly from Sri Lanka.
The MPs Pay Hike Case – An Opinion from Australia
I refer to Mr R.M.B. Senanayake’s letter requesting for advice from lawyers about the S.C. judgment in the Pay Hike which was published in the Daily Island.
The facts in this case are that some trade unions filed an application to obtain leave to proceed in a Fundamental Rights case before the Supreme Court relating to the hike in the pay of MPs. Leave was refused by the Supreme Court. No reasons were given for the refusal.
Was it incumbent on the Court to give reasons?
Should the court give reasons in such applications? While no reasons need be given where the application was allowed since it was only a tentative order, the position is different where leave is refused. Since the petition mentioned the alleged infringement of rights the Court had to decide whether there was an arguable question of law or fact. It would be enough to identify the questions at issue in deciding whether to allow or refuse leave to proceed. While it would be alright for the Court not to give reasons where it allowed the application, it was different where it refused leave, since such refusal is a final order. The Court should then give reasons for the refusal. Natural justice would not be met unless the petitioner is made known the reasons why his petition has failed. Merely stating that leave was refused is hardly a judicial order.
Isn’t it important for the highest court to give reasons because questions of binding precedent are involved? In this 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 may try his luck, and neither he nor the judges will have any guidance from this order.
Can a Resolution of Parliament be challenged in the Supreme Court?
Another very important issue arose in this case, namely whether a resolution of Parliament can be challenged in a fundamental rights case. The order does not afford any guidance 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).
Under Article 68 of the Constitution Parliament is to provide by law or by resolution for the remuneration of the Members of Parliament. Had Parliament attempted to fix remuneration by law, a Bill for the purpose would have to be gazetted and then citizens would have the right to challenge the Bill on the ground that it was a violation of Fundamental Rights or as inconsistent with the Constitution. Then the Supreme Court would have to make a Determination on such issue, giving reasons. The Bill could then be passed only in accordance with the S.C Determination. Once it is passed the resultant Act could not be further challenged.
But a resolution is different. It does not have such safeguards. And hence should not have such immunity from challenge which an Act of Parliament enjoys. A resolution under Article 68 is therefore a form of Parliamentary action which is inferior to legislation. It enjoys no immunity from judicial scrutiny.
There are other important constitutional questions. Did the majority of two Judges in this case decide that vital question in regard to the jurisdiction of the Supreme Court? If it decided that the Court had no jurisdiction what were the reasons? Could Parliament then do by resolution what it cannot do by legislation? (Pre-empt the citizens’ rights to canvass the opinion of the Supreme Court). If a Bill could be challenged as discriminatory why should a resolution to the same effect be immune from challenge on the identical ground?
Can Parliament use resolutions to short-circuit procedure for legislation?
Can Parliament in future resort to resolutions as a means of short circuiting the procedure for passing Bills? Even Delegated legislation 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?
The Question of Equity in awarding salary increases
Another 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 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?
Another issue is that in any event the resolution could not have been given retrospective effect. The public servants were not given salary increases with retrospective effect. Shouldn’t the public servants be given proportionate increases like the MPs? If proportionality was permissible and proper as between MP’s and judges, why not between MP’s and public servants?