National interest demands president should be above principle of equality

This is in reply to Mr. Weliamuna's article, published in the Sunday Times of January 6, on our three-week-old discussion on the Peter Hill issue. Mr. Weliamuna claims that I have misinterpreted his article on December 23, but does not say how or where I have done so. Instead he has embarked on a crusade against my views armed with a few irrelevancies and unnecessary comments. The cause of the irrelevancies is probably because he misinterpreted the content and at certain points omitted to pay close enough attention to the print. But it is beyond my comprehension why I am accused of glorifying my political favourites and of blindly supporting them, given that the opinions expressed in my article were well reasoned.

He also differs with me on a point I have not raised. Somehow he has managed to interpret my reply as saying that there was a public interest element in the President's return in the context of the visit. But if my article is read closely, he will see the reference to public interest was in the context of 'people's right to be informed' and not otherwise.

Mr. Weliamuna believes that I have forgotten to refer to the "Report of the Committee on Ministers' Powers" [Cmd (1932) 112]. But the truth is far from it. It is not my forgetfulness that caused the omission, but the fact that the Report's authority is undermined by two reasons.

Firstly, I have stated Dicey's Rule of Law (in the relevant context) and the interpretation given to it by authorities with more gravity i.e. Hillaire Barnett B.A, LL.M (Reader in Law, Queen Mary, University of London) who says " Dicey has often been interpreted as requiring that there be actual equality in terms of legal rights, powers and capacities. Such an interpretation is, however, misguided. The idea of equality before the law, irrespective of status, is subject to so many exceptions that it is of doubtful value". Then I supported her opinion with Sir Ivor Jennings', Jackson and Leonard's interpretations of the Rule of Law. It was not needed for me to have relied on the said Report when my article carried the weight of these authorities.

Secondly, the Report Mr. Weliamuna relies on is from the year 1932, which is outdated by 65 years. The interpretations I have cited are more recent and cut out to suit the modern day context [Barnett (2004), Jackson and Leonard (2001), Jennings (1959)].

Furthermore, Mr. Weliamuna quotes the Report as saying "…the government should not enjoy unnecessary privileges...". Here he is suggesting that facilitating the President's safe and quick return home at a time of potential political turmoil is an 'unnecessary privilege'!

There is a burning terrorist problem ailing the country that makes the president a prime target. Mr. Weliamuna will agree with me, at times like these, bringing the President back home safe, at the expense of a few hundred dollars is not an unnecessary privilege. It is about the first citizen's life and the threat on national security the loss of it could bring about.

In the case of Liverpool Navigation v. Chandrananda De Silva, Secretary, Ministry of Defence and Others, where the right to Equality under Article 12(1) of the Constitution was in question, Wijetunga J. quoting Article 15(7) stated that the fundamental rights are subject to restrictions in the interests of national security. He further said "considering the grave security situation that prevails in this country it goes without saying that national security is a predominant factor in the determination of the matter". This is illustrative of how national security could trump the right to equality.

Mr. Weliamuna views every privilege as an abuse amounting to corruption. He in his article on the 23rd says "there cannot be anyone above the law, be it the president or anyone else." This apparent extremism has blinded him to Sharvananda J.'s dicta in Palihawadana V. A.G. and Others, which implies that equality is a corollary of the Rule of Law, but expounds the application of the principle of equality on the narrower basis that persons 'similarly situate' should be treated alike. Mr. Waliamuna's argument could have held ground had the office of the President was 'similarly situated' with the citizenry. But reality prevails over utopianism.

The relevence of Senarath v. Kumaratunga, an authority Mr. Weliamuna has relied on, could be questioned here given that it can be distinguished from the issue at hand on factual grounds. This case is concerned with a former President's personal entitlements. An individual upon ceasing to hold the office of the President ceases to be entitled to certain privileges that the president enjoys. Also there were no national security issues in this case. However in the context that the Peter Hill issue arose, the question was neither about a 'former' President's entitlements nor personal privileges. Though Mr. Weliamuna had stated it was a private visit, it was done very much in the official capacity since the President was invited as the chief guest for the occasion. And of course there was the national security element (which I have explained above). Hence Senarath v. Kumaratunga does not support Mr. Weliamuna's argument.

I am also accused of supporting majority oppression of the minority, and as suggesting the sole criteria for decision making should be majority shareholding. A second reading of it could show him that what I have written is that the majority shareholder's will must be given due recognition, especially since the time period in question was politically most sensitive. This is only a plea to uphold the majority rule when doing otherwise could seriously undermine the national interest, and by no means suggestive of oppression.

Mr. Weliamuna says that "decision making authority has to professionally consider the merits and demerits". He further says that the CEO had "considered the best interest of the carrier when declining the seats". I agree with his former comment that the merits and demerits of a course of action must be considered before arriving at a decision. However I must remind him at this point that the idea of Corporate Governance requires companies to give recognition to stakeholder (i.e. community at large in this instance) interests and not only the commercial interest of the company.

The purpose of my endeavor was to explain the principle of equality along with its limitations, which does not share much with his rigidity. Any discussion on the Rule of Law in this regard must be an academic exercise given that one cannot properly elucidate constitutional principles without resorting to 'theory', the realm in which they were born.