IN THE SUPREME COURT OF THE DEMOCRATIC SOCIALIST REPUBLIC OF

SRI LANKA

In the matter of an application under and in terms

of Articles 17, 35 and 126 of the Constitution of
the Democratic Socialist Republic of Sri Lanka.

1. Centre for Policy Alternatives (Guarantee)

Limited,
No. 6/5, Layards Road,
Colombo 5.

2. Dr. Paikiasothy Saravananmuttu

No. 3, Ascot Avenue,
Colombo 5.
SC FR Application No. 449/2019

Petitioners
Vs

1. Hon. Attorney General

(in terms of the requirements of Article 35 of
the Constitution)

1A. Maithripala Sirisena

(former President of the Democratic
Socialist Republic of Sri Lanka)
No. 61, Mahagama Sekara Mawatha,
Colombo 7.

2. Hon. Attorney General

(in terms of the requirements of Articles
126(2) and 134 of the Constitution read with
Supreme Court Rule 44(3))

1
 Attorney General’s Department, Hulftsdorp,
Colombo 12.

3. Ranil Wickramasinghe
(Former) Prime Minister & Minister of
National Policies, Economic Affairs,
Resettlement & Rehabilitation, Northern
Province Development and Youth Affairs

Formerly at –
Prime Minister’s Office,
No. 58, Sir Earnest de Silva Mawatha,
Colombo 07.

Now at –
No. 117, 5th Lane,
Colombo 03.

4. John Amarathunga,
(Former) Minister of Tourism Development,
Wildlife and Christian Religious Affairs

Formerly at –
Ministry of Tourism Development, Wildlife
and Christian Religious Affairs
6th Floor, Rakshana Mandiriya,
No. 21, Vauxhall Street,
Colombo 02.

Now at –
No. 88, Negombo Road,
Kandana.

2
5. Gamini Jayawickrema Perera
(Former) Minister of Buddhasasana &
Wayamba Development

Formerly at –
Ministry of Buddhasasana & Wayamba
Development
No. 135, Sreemath Anagarika Dharmapala
Mawatha,
Colombo 07.

Now at –
No. 80, Kuruppu Road,
Borella, Colombo 08.

6. Mangala Samaraweera
(Former) Minister of Finance,
Ministry of Finance

Formerly at –
The Secretariat,
Lotus Road, Colombo 01.

Now at –
No. 141/5, Galkanuwa Road,
Gorakana, Moratuwa.

7. Lakshman Kiriella
(Former) Minister of Public Enterprise,
Kandyan Heritage and Kandy Development

Formerly at –
Ministry of Public Enterprise, Kandyan
Heritage and Kandy Development

3
 Level 7, West Tower
World Trade Centre, Colombo 01.

Now at –
No. 121/1, Pahalawela Road,
Palawatta, Battaramulla.

8. Rauff Hakeem
(Former) Minister of City Planning, Water
Supply and Higher Education

Formerly at –
Ministry of City Planning, Water Supply and
Higher Education,
No. 35, Lakdiya Medura, New Parliament
Road, Pelawatta, Batteramulla.

Now at –
No. 263, Galle Road,
Colombo 03.

9. Thilak Marapana
(Former) Minister of Foreign Affairs

Formerly at –
Ministry of Foreign Affairs,
Republic Building, Sir Baron Jayathilaka
Mawatha, Colombo 01.

Now at –
No. 13, Pelawatta Road,
Nugegoda.

10. Dr. Rajitha Senaratne

4
 (Former) Minister of Health, Nutrition and
Indigenous Medicine

Formerly at –
Ministry of Health, Nutrition and Indigenous
Medicine “Suwasiripaya”
385, Ven. Baddegama Wimalawansa Thero
Mawatha, Colombo 01.

Now at –
No. 22B, Stanmore Crescent,
Colombo 07.

11. Ravi Karunanayake

(Former) Minister of Power, Energy and
Business Development

Formerly at –
Ministry of Power, Energy and Business
Development
No. 72, Ananda Coomaraswam Mawatha,
Colombo 07.

Now at –
No. 1291/6, Rajamalwatta Road,
Battaramulla.

12. Vajira Abeywardena

(Former) Minister of Internal & Home
Affairs and Provincial Councils & Local
Government

Formerly at –

5
 Ministry of Internal & Home Affairs and
Provincial Councils & Local Government
No. 330, Dr Colvin R. de Silva Mawatha,
Union Palace, Colombo 02.

Now at –
No. 3, 34th Lane, Queens Road,
Colombo 03.

13. Rishad Bathiudeen

(Former) Minister of Industry & Commerce,
Resettlement of Protracted Displaced
Persons, Co-operative Development and
Vocational Training & Skills Development

Formerly at –
Ministry of Industry & Commerce,
Resettlement of Protracted Displaced
Persons, Co-operative Development and
Vocational Training & Skills Development
73/1, Galle Road, Colombo 03.

Now at –
37C, Stanmore Crescent,
Colombo 07.

14. Patali Champika Ranawaka

(Former) Minister of Megapolis & Western
Development

Formerly at –
Ministry of Megapolis & Western
Development,
17th and 18th Floors, “SUHURUPAYA”,

6
 Subhuthipura Road, Battaramulla.

Now at –
No. 88/1, Jayanthipura Road,
Battaramulla.

15. Navin Dissanayake

(Former) Minister of Plantation Industries

Formerly at –
Ministry of Plantation Industries
8th Floor, Stage II, Sethsiripaya,
Battaramulla.

Now at –
No. 09, Philip Gunawardana Mawatha,
Colombo 07.

16. P. Harison
(Former) Minister of Agriculture, Rural
Economic Affairs, Irrigation and Fisheries &
Aquatic Resources Development

Formerly at –
Ministry of Agriculture, Rural Economic
Affairs, Irrigation and Fisheries & Aquatic
Resources Development
No. 288, Sri Jayawardhanepura Mawatha,
Rajagiriya.

Now at –
Main Street,
Maradankadawala.

7
17. Kabir Hashim
(Former) Minister of Highways & Road
Development and Petroleum Resources
Development

Formerly at –
Ministry of Highways & Road Development
and Petroleum Resources Development
9th Floor, Maganeduma Mahamedura,
Denszil Kobbekaduwa Mawatha,
Koswatta, Battaramulla.

Now at –
No. 156, Lake Drive,
Colombo 08.

18. Ranjith Madduma Bandara

(Former) Minister of Public Administration,
Disaster Management and Livestock
Development

Formerly at –
Ministry of Public Administration, Disaster
Management and Livestock Development
Independence Square,
Colombo 07.

Now at –
31/3, Kandawatte Terrace,
Nugegoda.

19. Gayantha Karunathilaka

(Former) Minister of Lands and
Parliamentary Reforms

8
 Formerly at –
Ministry of Lands and Parliamentary
Reforms
“Mihikatha Medura”,
Land Secretariat, 1200/6, Rajamalwatta
Avenue, Battaramulla.

Now at –
No.119, Wijerama Mawatha,
Colombo 07.

20. Sajith Premadasa

(Former) Minister of Housing, Construction
and Cultural Affairs

Formerly at –
Ministry of Housing, Construction and
Cultural Affairs
2nd Floor, Sethsiripaya,
Battaramulla.

Now at –
No. 11/01, Tower B, Royal Park Apartment,
Lake Drive, Rajagiriya.

21. Arjuna Ranatunga

(Former) Minister of Transport & Civil
Aviation

Formerly at –
Ministry of Transport & Civil Aviation
7th Floor, Stage II, Sethsiripaya,
Battaramulla.

9
 Now at –
No. 50/9, Pelawatta Road,
Nugegoda.

22. U. Palani Digambaram

(Former) Minister of Hill Country New
Villages, Infrastructure and Community
Development

Formerly at –
Ministry of Hill Country New Villages,
Infrastructure and Community Development
No. 45, St. Michaels Road,
Colombo 03.

Now at –
No. 1/7B, Sri Saranankara Road,
Dehiwala.

23. Chandrani Bandara

(Former) Minister of Women & Child
Affairs and Dry Zone Development

Formerly at –
Ministry of Women & Child Affairs and Dry
Zone Development
5th Floor, Sethsiripaya Stage II,
Battaramulla.

Now at –
C. 49, Keppetipola Mawatha,
Colombo 05.

10
24. Thalatha Atukorala
(Former) Minister of Justice & Prison
Reforms

Formerly at –
Ministry of Justice & Prison Reforms
Superior Court Complex,
Colombo 12.

Now at –
231/1, Stanly Thilakeratne Mawatha,
Nugegoda.

25. Akila Viraj Kariyawasam

(Former) Minister of Education

Formerly at –
Ministry of Education
Isurupaya, Pelawatta,
Battaramulla.

Now at –
No. 306, (D.02)
Bauddhaloka Mawatha,
Colombo 07.

26. M.H.A. Haleem

(Former) Minister of Postal Services &
Muslim Religious Affairs

Formerly at –
Ministry of Postal Services & Muslim
Religious Affairs

11
 6th & 7th Floors, Postal Headquarters
Building, 310,
D.R. Wijewardana Road, Colombo 01.

Now at –
No.16/2B, Fowziya Garden,
Mawilmada Road,
Kandy.

27. Sagala Ratnayake

(Former) Minister of Ports & Shipping &
Southern Development

Formerly at –
Ministry of Ports & Shipping & Southern
Development
No. 19, Chaithya Road,
Colombo 01.

Now at –
No. 06/01, 28th Lane, Off Flower Road,
Colombo 07.

28. Harin Fernando

(Former) Minister of Telecommunication,
Foreign Employment and Sports

Formerly at –
Ministry of Telecommunication, Foreign
Employment and Sports
No. 09, Philip Gunawardena Mawatha,
Colombo 07.

Now at –

12
 No. 276/4, Negombo Road,
Wattala.

29. Mano Ganesan

(Former) Minister of National Integration,
Official Languages, Social Progress and
Hindu Religious Affairs

Formerly at –
Ministry of National Integration, Official
Languages, Social Progress and Hindu
Religious Affairs
40, Buthgamuwa Road,
Rajagiriya.

Now at –
No. 72, Bankshall Street,
Colombo 01.

30. Daya Gamage

(Former) Minister of Primary Industries and
Social Empowerment

Formerly at –
Ministry of Primary Industries and Social
Empowerment
1st Floor, Stage II, Sethsiripaya,
Battaramulla.

Now at –
No.19/6A, Hospital Terrance,
Sunandarama Road,
Kalubowila

13
 31. Malik Samarawickrema
(Former) Minister of Development
Strategies and International Trade

Formerly at –
Ministry of Development Strategies and
International Trade
Level 30, West Tower,
World Trade Centre, Colombo 01.

Now at –
No. 50/24, Bullers Lane,
Colombo 07.

32. Dr. R.H.S. Samaratunga

(Former) Secretary to the Treasury / Ministry
of Finance
Ministry of Finance
The Secretariat
Lotus Road, Colombo 01.

32A. S.R. Attygalle

Secretary to the Ministry of Finance
Ministry of Finance
The Secretariat
Lotus Road, Colombo 01.

33. J.J. Rathnasiri

(Former) Secretary
Ministry of Public Administration and
Management
Independence Square, Colombo 07.

14
 34. Sumith Abeysinghe
(Former) Secretary to the Cabinet of
Ministers,
Office of the Cabinet of Ministers Republic
Building,
Sir Baron Jayathilaka Mawatha,
Colombo 01.

34A. W.M.D.J. Fernando

Secretary to the Cabinet of Ministers

35. Udaya Ranjith Seneviratne

(Former) Secretary to the President,
Presidential Secretariat,
Galle Face,
Colombo 01.

35A. Dr. P.B. Jayasundera

Secretary to the President,
Presidential Secretariat,
Galle Face,
Colombo 01.

36. Mahinda Rajapaksa

Prime Minister and Minister of Finance
Minister of Buddhasasana, Religious &
Cultural Affairs
Minister of Urban Development & Housing
Prime Minister’s Office,
No. 58, Sir Earnest de Silva Mawatha.
Colombo 07.

37. Nimal Siripala De Silva

Minister of Labour

15
 6th Floor, “Mehewara Piyesa”,
Narahenpita, Colombo 05.

38. G.L. Peiris

Minister of Education
Isurupaya, Battaramulla.

39. Pavithra Devi Vanniarachchi

Minister of Health
“Suwasiripaya”
No. 385, Rev. Baddegama Wimalawansa
Thero Mawatha, Colombo 01.

40. Dinesh Gunawardena

Minister of Foreign Relations
Republic Building,
Sir Baron Jayathilake Mawatha, Colombo 01

41. Douglas Devananda

Minister of Fisheries
New Secretariat, Jayathilaka Mawatha,
Colombo 01.

42. Gamini Lokuge

Minister of Transport
7th Floor, Sethsiripaya Stage II,
Battaramulla.

43. Bandula Gunawardena

Minister of Trade
7th Floor, CWE Secretariat, No. 27,
Vauxhall Street, Colombo 02

16
44. R.M.C.B. Rathnayake
Minister of Wildlife & Forest Conservation
No. 1090, Sri Jayawardhanapura Mawatha,
Rajagiriya.

45. Janaka Bandara Thennakoon

Minister of Public Services, Provincial
Councils & Local Government
Independence Square,
Colombo 07.

46. Keheliya Rambukwella

Minister of Mass Media
163, “Asi Disi Medura”,
Kirulapone Mawatha, Polhengoda,
Colombo 05.

47. Chamal Rajapaksa

Minister of Irrigation
No. 11, Jawatte Road,
Colombo 05.

48. Dalas Alahapperuma

Minister of Power
72, Ananda Coomarswamy Mw.,
Colombo 07.

49. Johnston Fernando

Minister of Highways
“Maganeguma Mahamedura”, 9th Floor,
216, Denzil Kobbekaduwa Mawatha,
Battaramulla.

17
50. Wimal Weerawansha
Minister of Industries
No. 73/1, Galle Road,
Colombo 03.

51. Mahinda Amaraweera

Minister of Environment
“Sobadam Piyasa”, 416/C/1,
Robert Gunawardana Mawatha,
Battaramulla.

52. S.M. Chandrasena

Minister of Lands
“Mihikatha Medura”, Land Secretariat,
No. 1200/6, Rajamalwatta Road,
Battaramulla.

53. Mahindananda Aluthgamage

Minister of Agriculture
80/5, “Govijana mandiraya”,
Rajamalwatta Lane, Battaramulla.

54. Vasudeva Nanayakkara

Minister of Water Supply
No. 35, New Parliament Road Pelawatta,
Battaramulla.

55. Udaya Prabhath Gammanpila

Minister of Energy
No. 80, Sir Earnest de Silva Mawatha,
Colombo 07.

56. Ramesh Pathirana

Minister of Plantation

18
 11th Floor, Sethsiripaya Stage II,
Battaramulla.

57. Prasanna Ranathunga

Minister of Tourism
6th Floor, Rakshana Mandiraya,
No. 21, Vauxhall Street, Colombo 02.

58. Rohitha Abegunawardhana

Minister of Ports & Shipping
No. 19, Chaithya Road,
Colombo 01.

59. Namal Rajapaksa

Minister of Youth & Sports
No. 09, Phillip Gunawardana Mawatha,
Colombo 07.

Respondents

Before : Priyantha Jayawardena, PC, J

E.A.G.R. Amarasekara, J
Kumudini Wickremasinghe, J

Counsel : Suren Fernando with Luwie Ganeshathasan and Khyati Wickramanayake

for the Petitioners.

Faisz Mustapha, PC with Faiszer Mustapha, PC, Pulasthi Rupasinghe,

Keerthi Tillekaratne and Ashan Bandara for the 1A Respondent.

Dr. Avanti Perera, DSG for the 2nd, 32B and 33B Respondents.

Argued on : 14th September, 2022

Decided on : 29th February, 2024

19
Priyantha Jayawardena PC, J

The petitioners filed the instant application challenging the decision of the Cabinet of Ministers
to grant the former President, the 1A respondent, to occupy his official residence after his
retirement under the Presidents Entitlements Act No. 4 of 1986.

Facts of the case

The instant application was initially filed against the Attorney General in terms of Article 35(1)
of the Constitution, alleging the infringement of Fundamental Rights of the petitioners and
citizens of Sri Lanka. Upon the retirement of the former President, he was added as the 1A
respondent to the application.

The petitioners stated that the Minister of Finance, by a Cabinet Memorandum dated 11th of
October, 2019 recommended, inter alia, to allocate the residence that he was occupying as the
President, which is situated at Mahagama Sekara Mawatha (Paget Road), Colombo 7 to be
given to the 1A respondent after his retirement in terms of section 2 of the Presidents
Entitlements Act No. 4 of 1986.

The petitioners further stated that in terms of Article 43(2) of the Constitution, when the
Cabinet Memorandum regarding his retirement benefits was discussed and decided, the 1A
respondent as the head of the Cabinet of Ministers presided over the said meeting. Hence, it
was stated that the participation of the 1A respondent in the said Cabinet meeting is a violation
of the principle of nemo judex in causa sua / conflict of interest and is demonstrative of the
mala fides of the 1A respondent.

Moreover, the petitioners stated that though the former President is entitled to certain benefits
under and in terms of the Presidents Entitlements Act No. 4 of 1986, the said power should be
exercised according to the law and in a reasonable manner.

The petitioners further stated that the aforementioned residence occupied by the 1A respondent
is of great financial value and is an asset of the country. Moreover, in October 2015,
approximately Rs. 180 million was allocated from State funds for the renovation of the said
residence and to merge two houses stating “to bring into proper condition which is suitable for
the use of the President”. Hence, the petitioners stated that an allocation of a public asset used

20
by the President, which is of a high financial value, for the personal use of a former President
is irrational, unreasonable, arbitrary, ultra vires and illegal.

It was further stated that the decision made by the Cabinet of Ministers goes beyond the scope
of the said Act and violates the right to equality and equal protection of the law guaranteed to
the citizens of this country by Article 12(1) of the Constitution.

After hearing the parties, the Supreme Court granted Special Leave to proceed with the instant
application and an interim Order was made suspending the operation of the said Cabinet
decision dated 15th of October, 2019. Hence, the 1A respondent vacated the premises in
compliance with said interim Order.

Submissions of the petitioners

The learned counsel for the petitioners submitted that the 1A respondent was the former
President and the head of the Cabinet of Ministers in terms of Article 43(2) of the Constitution
at the time the Cabinet made the impugned decision with regard to his retirement benefits.
Further, at the time the said decision was taken, the 1A respondent had participated in the said
meeting of the Cabinet of Ministers as the head of the Cabinet of Ministers.

The learned counsel for the petitioners cited Senarath and others v. Chandrika
Bandaranayake Kumaratunga and others (2007) 1 SLR 59 and submitted that according to
the principle of nemo judex in causa sua, a person should refrain from participating in taking
decisions in respect of himself.

In the circumstances, the learned counsel further submitted that the 1A respondent chaired the
meeting in which it was decided to grant him retirement benefits and hence, the said decision
is a violation of the principle of nemo judex in causa sua. Moreover, the said Act does not
provide for the granting of a residence fit for a President to be given to a former President.

Further, the Cabinet of Ministers cannot decide the entitlements that should be granted to the
President upon retirement when he is holding office. Moreover, the President is constitutionally
vested with the power to remove any Cabinet Minister or their functions and thus, exercises
full control over the Ministers. Hence, the learned counsel for the petitioners submitted that

21
taking such a decision while the President is holding office would lead to a conflict of interest,
which would result in an abuse of power.

It was further submitted that granting retirement benefits above and beyond the scope of
Presidents Entitlements Act No. 4 of 1986 is a violation of the doctrine of equality enshrined
in Article 12(1) of the Constitution.

The learned counsel for the petitioners further submitted that the decisions to grant entitlements
to former Presidents are not policy decisions, but are decisions taken during the normal course
of the business of the Cabinet of Ministers.

Submissions of the 1A respondent

The learned President’s Counsel for the 1A respondent submitted that the 1A respondent is the
former President of Sri Lanka and is entitled to certain benefits under Presidents Entitlements
Act No. 4 of 1986. Accordingly, the former President is entitled to receive a residence under
the said Act. As such, the Minister of Finance submitted a Cabinet Memorandum
recommending, inter alia, to allocate the residence situated at Paget Road, used by the 1A
respondent as his official residence, to be used as his residence after the cessation of his tenure.
The said Memorandum was unanimously approved by the Cabinet of Ministers headed by the
1A respondent.

The learned President’s Counsel further submitted that the instant application does not come
within the jurisdiction vested in the Supreme Court in terms of Article 17 read with Article 126
of the Constitution as the Cabinet of Ministers are collectively responsible and are directly
answerable to the Parliament. Accordingly, the legality of any Cabinet decision shall be
reviewed and corrected only by Parliament and not by court. Therefore, the court cannot review
the impugned decision of the Cabinet of Ministers dated 15th of October, 2019.

In this regard, he cited Article 43(1) of the Constitution which states;

"There shall be a Cabinet of Ministers charged with the direction and control of
the Government of the Republic, which shall be collectively responsible and
answerable to Parliament.”

22
In support of the above submissions, the learned President’s Counsel cited the judgment
delivered in Tilwin Silva v. Ranil Wickremasinge and others (2007) 2 SLR 15, where it was
held;

“The Cabinet which consists of the President - Head of the Cabinet, the Prime
Minister and the Cabinet of Ministers is in charge of the direction and control of
the Government and they are collectively responsible to Parliament (Article 43
(1)). When these provisions are considered, in the light of the concept of
collective responsibility of the Cabinet the President and the Cabinet are part of
one unit that is collectively responsible.

The deliberation within the Cabinet amongst its members including the
President, is a matter for the concern of the Cabinet and not of this Court.”

It was further submitted that section 2 of the Presidents Entitlements Act No. 4 of 1986 states;

“There shall be provided for every Former President and the widow of a Former
President, during his or her lifetime, the use of an appropriate residence free of
rent.”

Accordingly, the learned President’s Counsel submitted that in terms of the said section, the
former President is entitled to receive a suitable residence upon ceasing to hold office as the
President of Sri Lanka. Thus, the decision made on the 15th of October, 2019 by the Cabinet of
Ministers were done in conformity with the provisions of the said Act. Hence, it was submitted
that the allocation of the residence at Mahagama Sekara Mawatha to the 1A respondent is in
conformity with the provisions of the said Act and lawful.

Moreover, it was submitted that the said Act does not provide for a procedure for the allocation
of retirement benefits, and, in particular, does not specify details in relation to the allocation of
a residence to a former President.

Furthermore, the learned President’s Counsel submitted that the said residence should be
considered as an “appropriate residence” for the 1A respondent to reside upon ceasing his office
as the 1A respondent occupied the said residence as his official residence during his entire
tenure.

23
The learned President’s Counsel further submitted that the 1A respondent is the head of the
Cabinet of Ministers and as such, any meeting of the Cabinet of Ministers has to be headed by
the President. Thus, a Cabinet decision cannot be taken without the participation of the head of
the Cabinet. In the circumstances, the petitioner’s statement that the 1A respondent has acted
in violation of the principle of nemo judex in causa sua is baseless. Additionally, as the former
President was acting in terms of the Constitution, it is not possible to state that he acted ultra
vires.

In this regard, the attention of court was drawn to Article 43(2) of the Constitution which reads;

“The President shall be a member of the Cabinet of Ministers and shall be

the Head of the Cabinet of Ministers.”

Moreover, the learned President’s Counsel submitted that the petitioners relied on the decision
of the Supreme Court judgment in Senarath and others v. Chandrika Bandaranayake
Kumaratunga and others (supra) to show that the petitioners’ rights guaranteed under Article
12(1) of the Constitution have been infringed. However, the facts of the two cases were
different as in the case of Chandrika Bandaranayake, the ex-President was using her residence
as an office after retirement, together with a large staff, whereas the Act does not provide for a
grant of an office to a former President.

The learned President’s Counsel also pointed out that the sum of monies allocated as retirement
benefits for the former President Mahinda Rajapaksa and 1A respondent are in identical
amounts.

Furthermore, it was submitted that the house under reference is not in a good condition and the
petitioners were overstating its value. Moreover, Parliament had approved the allocation for
the said house to be used by the 1A respondent. In this regard, the attention of court was drawn
to the budget extracts from the Ministry of Finance website depicting the allocation of finances
approved for the upkeep of the said residence.

Hence, it was submitted that the Presidents Entitlements Act No. 4 of 1986 is an exception to
the concept of equality before the law and therefore, the Cabinet decision dated 15th of October,
2019 does not amount to a violation of the petitioners’ Fundamental Rights guaranteed by
Article 12(1) of the Constitution and accordingly, the application should be dismissed.

24
Does the Supreme Court have jurisdiction to entertain the petitioners’ application?

The 1A respondent was residing at the home under consideration situated at Mahagama Sekera
Mawatha, Colombo 7 since 2015, after he was elected as the President. Further, he carried out
his official duties as President from the said residence. On the 11th of October, 2019, a Cabinet
Memorandum titled “Facilities for former Presidents” was presented by the Minister of Finance
to the Cabinet of Ministers to grant retirement benefits to the 1A respondent.

The said Cabinet Memorandum (marked and produced as ‘P11’) stated;

“
1.0 Introduction

1.1 As His Excellency Maithripala Sirisena intends to retire as the Sixth

Executive President of Sri Lanka following the forthcoming Presidential
Elections, this Cabinet Memorandum is presented for the purpose of
providing His Excellency with entitlements of Former Presidents, as well
as special facilities granted to Former Presidents by the Government taking
into consideration special circumstances.

1.2 The Presidential Entitlements Act No 4 of 1986 and Supreme Court

Application No. 503/2005 (FR) mentions the facilities provided to Former
Presidents. Notwithstanding these facts, Government has taken measures to
provide special facilities to Former Presidents owing to special situations
that have occurred during the tenure of presidency.

1.3 The island-wide drug eradication campaign launched by His Excellency

the President to bring drug smugglers, who are subjecting Sri Lanka to a
grave danger, before the law has resulted in a situation where drug dealers
with powerful national and international links pose a threat to the life of
His Excellency. This threat has widened with the action taken by His
Excellency as the Minister of Defence to combat terrorist and extremist
activities.

25
 2.0 Proposal

I propose the following facilities to be provided to His Excellency the

President upon his retirement:

i. Provide the services of the Special Task Force for the protection of
His Excellency the President in view of matters mentioned at 1.3
above.
ii. Take measures for the continuous use of His Excellency the
President's official residence at No. 61 Mahagamasekera Mawatha,
Colombo 7, after his retirement.
iii. Provide facilities provided at present to retired presidents, i.e official
and other vehicles and commensurate fuel.
iv. Payment of water, electricity and telephone bills for the official
residence and other facilities related to the official residence.
v. Provide two KKS to facilitate the work of His Excellency the
President.”
[emphasis added]

The said Cabinet Memorandum was approved by the Cabinet of Ministers headed by the 1A
respondent on the 15th of October, 2019, to grant the residence situated at Mahagama Sekera
Mawatha, Colombo 7 to the 1A respondent after his retirement as the President in terms of
section 2 of the Presidents Entitlements Act No. 4 of 1986.

The decision made by the Cabinet of Ministers regarding the aforementioned Cabinet
Memorandum (marked and produced as ‘P12’) stated;

“Cabinet Paper No.19/2946/108/239, a Memorandum dated 2019-10-11

by the Minister of Finance on "Facilities for former Presidents" the above
Memorandum was considered by the Cabinet along with the further
clarifications made by the Minister of Finance at this meeting. After
discussion, it was decided to grant approval to the proposals in paragraph
2.0 of the Memorandum.

26
 It was also decided to treat this decision as confirmed and to authorize the
Secretary to the Cabinet of Ministers to convey the same to the relevant
authorities for necessary action accordingly.”

A careful consideration of the said decision and the provisions of the said Act shows that it was
not a policy decision of the Cabinet of Ministers but a decision to provide benefits under the
said Act to the 1A respondent, made by the Cabinet of Ministers in their ordinary course of
business.

Nevertheless, even if the impugned decision was to be considered as a policy decision, the
courts have the power to consider such a decision if the decision is arbitrary and ultra vires.

A similar view was expressed in Sidheswar Sahakari Sakhar Karkhana Ltd. v. Union of India
(2005) 3 SCC 369 where it was held;

“Normally the Court should not interfere in policy matter which is within the
purview of the government unless it is shown to be contrary to law or
inconsistent with the provisions of the Constitution.”

Further, in Ugar Sugar Works Ltd. v. Delhi Administration and others (2001) 3 SCC 635, the
Indian Supreme Court observed;

“It is well settled that the Courts, in exercise of their power of judicial review,
do not ordinarily interfere with the policy decisions of the Executive unless the
policy can be faulted on grounds of mala fide, unreasonableness, arbitrariness
or unfairness etc. Indeed, arbitrariness, irrationality, perversity and mala fide
will render the policy unconstitutional. However, if the policy cannot be faulted
on any of these grounds, the mere fact that it would hurt business interests of a
party, does not justify invalidating the policy.”

[emphasis added]

However, as stated above, the decision taken by the Cabinet of Ministers is not a policy decision
and this court has the jurisdiction to consider the instant application.

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Moreover, in Priyangani v. Nanayakkara and others (1996) 1 SLR 399 at 404-405, Fernando,
J. reiterated the interrelationship between the Right to Equality guaranteed by Article 12 of the
Constitution and Rule of Law. Furthermore, the Court held;

“We are not concerned with contractual duties, but with the safeguards based
on the Rule of Law which Article 12 provides against the arbitrary and
unreasonable exercise of discretionary powers. Discretionary powers can
never be treated as absolute and unfettered unless there is compelling
language; when reposed in public functionaries, such powers are held in trust,
to be used for the benefit of the public, and for the purpose for which they have
been conferred - not at the whim and fancy of officials for political advantage or
personal gain.”
[emphasis added]

Further, as stated above, given the facts and circumstances of the instant application, Article
43(1) of the Constitution cannot be construed as an ouster clause which can oust the jurisdiction
of the court to entertain the instant application.

When do retirement entitlements become due?

The Long Title of the Presidents Entitlements Act No. 4 of 1986, states;

“AN ACT to provide for the grant official residence and other allowances and
facilities to Former Presidents and to the widows of Former Presidents; to
provide for the payments of pensions to such widows; and for matters connected
with or incidental thereto.”
[emphasis added]

Further, sections 2 and 3 of the Presidents Entitlements Act No. 4 of 1986 states;

“2. Provision of residences.

There shall be provided to every Former President and the widow of a Former
President, during his or her life time, the use of an appropriate residence free
of rent:

28
 Provided that where for any reason, an appropriate residence is not provided for
the use of such Former President for the widow of such Former President, there
shall be paid to such Former President or the widow of such Former President,
a monthly allowance equivalent to one-third of the monthly pension payable to
such Former President or the widow of such Former President, as the case may
be.

3. Payment of secretarial allowances and provision of official transport and

other facilities.

(1) There shall be paid to -

(a) every Former President, a monthly secretarial allowance equivalent to the

monthly salary for the time being payable to the person holding the office of
Private Secretary to the President; and
(b) to the widow of such Former President, a monthly secretarial allowance
equivalent to the monthly salary for the being payable to the person holding
the office of Private Secretary to a Minister of the Cabinet of Ministers.

(2) There shall be provided to every Former President and the widow of such
Former President, official transport and all such other facilities as are for the
time being provided to a Minister of the Cabinet of Ministers.”
[emphasis added]

Accordingly, the word ‘former’ used in the Long Title and in sections 2 and 3 of the said Act
shows that the provisions of the said Act are only applicable to former Presidents and widows
of former Presidents. Hence, the entitlements provided in the said Act become due only after
a President retires from office. Thus, no decision can be made to grant benefits under the said
Act prior to a President retiring from his office. However, the decision of the Cabinet of
Ministers under reference had been taken when the 1A respondent was functioning as the
President of the Republic.

29
A similar view was expressed by this court in Senarath and others v. Chandrika
Bandaranayake Kumaratunga and others (supra) at 71, where it was held;

“The petitioners made a further submission that in any event the entitlements in
Act No.4 of 1986 are to "every former President and widow of a former
President". This is clearly seen in sections 2 and 3. Therefore it was submitted
that the entitlement becomes effective only after a President ceases to hold
office and acquires the status of former President. The entitlement cannot be
granted whilst the person is holding the office of President.

In my view the provisions have been advisedly worded in this manner to avoid
a situation as has happened in relation to the 1st respondent of the President
himself or herself partaking in decisions as to the entitlements to be given after
ceasing to hold office.

[emphasis added]

Furthermore, in the determination of Re the Nineteenth Amendment to the Constitution

(2002) 3 SLR 85, a Divisional Bench of seven judges of the Supreme Court laid down the basic
premise of the Constitution as enunciated in Articles 3 and 4, that the respective “organs of the
government are only custodians for the time being, that exercise the power for the People”.
Therefore, “executive power should not be identified with the President and personalised and
should be identified at all times as the power of the People”. Thus, the granting of public
property and public funds for personalised usage for oneself after retirement would be
considered an arbitrary and irrational abuse of the power bestowed upon the executive by the
People.

Is the decision made by the Cabinet of Ministers ultra vires?

As stated above, the Cabinet Memorandum contained the retirement benefits to be given to the
1A respondent. Further, the said Memorandum stated that due to special circumstances that
took place during the term of the 1A respondent, it was necessary to provide special facilities
for him.

30
The special facilities proposed to be provided were to allow the President the continued
occupation of his official residence after retirement and to provide the protection of the Special
Task Force.

Moreover, the said Memorandum stated that the “services of the Special Task Force” were to
be provided for the protection of the President's life which is endangered “by local and
international groups affiliated to the drug trade due to the programs he has put in place to
bring to book those involved in the illegal drug trade while such threats have widened further
due to actions he has taken against terrorism and extremism in his capacity as the Minister of
Defense.” This was implied to be the special circumstances during his tenure that necessitated
the granting of special facilities.

However, other than the said mere statement in the Memorandum, no materials were submitted
to the Cabinet of Ministers to substantiate the said assertion of the then Minister of Finance.
Accordingly, there was no material before the Cabinet of Ministers to support the contents of
the said Cabinet Memorandum at the time the impugned decision was made by the Cabinet of
Ministers.

In 2015, the media reported that a supplementary estimate of Rs. 180 million was allocated to
renovate and refurbish the official residence of the President. In response, on the 7th of October,
2015, the Media Division of the 1A respondent issued a press statement where the Secretary to
the President stated that the “government had to rehabilitate and improve the residence of the
President by joining two old houses to bring it to proper condition which is suitable for the use
of the President”. Thus, this residence consists of two houses merged in central Colombo.
Additionally, he stated that this residence was considered appropriate as the “government had
to provide security to the official residence of the President and to provide accommodation
facilities for the security personnel of the President”.

Furthermore, in the Counter Objections, the petitioners annexed two supplementary allocations
(marked as ‘P13’ and ‘P14’) provided by the Department of National Budget. The said
documents depict large amounts of State resources totalling Rs. 96,391,000, spent in 2015 for
the renovation of the said residence of the President, and an additional amount of Rs.
84,297,000 allocated to construct a new building within the compound. These allocations were
made when the 1A respondent was occupying the said premises as the President of the

31
Republic. Thus, there is no rational basis for affording a former President with a residence that
was built to be used by the head of State.

A similar view was expressed in the case of Senarath and others v. Chandrika
Bandaranayake Kumaratunga and others (supra), where it was held that the Memorandum
submitted to obtain the decision to grant the residence stated that the “the value of land
requested is insignificant when compared with the entitlements she has given up and also
proposes to forego in the future”. However, the land was “originally intended for the
construction of the Presidential Palace and a sum of Rs. 800 million has already been spent by
the State to develop the land for the purpose of such construction.” Thus, it was held that a
fully developed land near the Parliament cannot be considered “insignificant”. Furthermore, it
was held that the residence cannot be considered “appropriate” according to section 2 of the
said Act as it was a land developed for a different purpose.

Section 2 of the Presidents Entitlements Act No. 4 of 1986 provides a former President with
“the use of an appropriate residence free of rent”. However, this residence is situated in a
prime location and has used around Rs. 180 million State funds for renovation and
amalgamation for the purpose of being used by the President to carry out his official activities.
Thus, this specified residence cannot be considered as one singular house appropriate for a
President retired from office. Hence, a high financial value public asset constructed to occupy
a President of the Republic cannot be allocated to a former President who is no longer serving
as the Head of the State.

The Presidents Entitlements Act No. 4 of 1986 bestows the Cabinet of Ministers with powers
to decide the benefits a former President is entitled to. However, such a decision should be
taken according to the provisions of the said Act. Any decision taken in violation of the powers
conferred by the provisions of the Act or outside the scope of the said Act are ultra vires of the
powers conferred by the said Act.

A similar view was expressed in De Smith’s Judicial Review of Administrative Action, 4th
Edition at page 96 which states;

“Substantive ultra vires may relate to matters of law and fact or to matters of
discretion. Discretionary powers must be exercised for the purposes for which
they were granted; relevant considerations must be taken into account and
irrelevant considerations disregarded; they must be exercised in good faith and

32
 not arbitrarily or capriciously. If the repository of the power fails to comply with
these requirements it acts ultra vires.”
[emphasis added]

Further, in Administrative Law, 10th Edition at page 30, H.W.R. Wade & C.F. Forsyth states;

“… the court will hold the order to be ultra vires if the minister acted in bad faith
or unreasonably or on no proper evidence.”

As such, the retirement benefits that were granted without proper materials to substantiate the
decision of the Cabinet of Ministers are beyond the powers granted by the said Act and are
irrational, unreasonable, arbitrary, ultra vires and illegal.

Is there a violation of the principles of Natural Justice?

It is pertinent to note that the Presidents Entitlements Act No. 4 of 1986 grants entitlements
only to former Presidents and their widows, which is contrary to Article 12 of the Constitution
which enshrines the concept of equality before the law. No other holder of public office is
granted such benefits. As such, in Senarath and others v. Chandrika Bandaranayake
Kumaratunga and others (supra) at 77, the Supreme Court, held;

“It has to be noted that the Presidents Entitlements Act No. 4 of 1986 is a unique
piece of legislation which grants entitlements only to former Presidents and their
widows. Intrinsically it is an exception to the concept of equality before the law,
since no other holder of public office is granted such benefits. It appears that
there is no similar legal provision in any other country.

The provisions of this Act being an exception in itself to equality before the
law, have to be strictly interpreted and applied.”
[emphasis added]

Article 43(2) of the Constitution states that the President is the head of the Cabinet.
Administrative law is founded on the two basic principles of natural justice, i.e.;

“a man may not be a judge in his own cause”/ “Nemo judex in causa sua” and
“listen to the other side” / “Audi alteram partem”

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Hence, if the President participates and/or sits as the head of the Cabinet of Ministers when a
matter in which he has a personal interest is discussed and approved, such a decision is in
violation of the principle of nemo judex in causa sua.

Moreover, in Senarath and others v. Chandrika Bandaranayake Kumaratunga and others

(supra) at 71, Sarath N. Silva, CJ., held;

“In official matters the general rule is that a person would refrain from
participating in any process where the decision relates to his entitlement or in a
matter where he has a personal interest. "Nemo judex in causa sua" is a
principle of natural justice which has now permeated the area of corporate
governance as well. This salient aspect of good governance has been thrown
to the winds by the 1st respondent in initiating several Cabinet Memoranda
during her tenure of office and securing for herself purported entitlements
that would if at all ensure only after she lays down the reigns of office and
acquire the eligible status of a former President.”
[emphasis added]

In S.P. Guptha v. Union of India (1982) AIR (SC) at 149, Bhagawathi, J. observed;

“If there is one principle which runs through the entire fabric of the Constitution,
it is the principle of the rule of law and under the Constitution, it is the judiciary
which is entrusted with the task of keeping every organ of the State within the
limits of the law and thereby making the rule of law meaningful and effective. It
is to aid the judiciary in this task that the power of judicial review has been
conferred upon the judiciary and it is by exercising this power which constitutes
one of the most potent weapons in armoury of the law, that the judiciary seeks to
protect the citizen against violation of his constitutional or legal rights or misuse
of abuse of power by the State or its officers.”

Moreover, though Article 43(2) of the Constitution states that the President is the head of the
Cabinet of Ministers, he can refrain from the decision making process if a matter related to him
comes up before him or such matters can be taken up at the Cabinet of Ministers when an Acting
President is functioning in place of the President in terms of the Constitution.

34
The concept of “Quis custodiet ipsos custodes?” (“Who will guard the guards themselves?”),
would apply where the executive who acts as the custodian of the People’s power would abuse
that power for personal benefits and not face any repercussions by the other branches of
governance. Accordingly, the securing of personal benefits and advantages for himself by
presiding over the Cabinet while still in power as the sitting President is a breach of the
provisions of the Presidents Entitlements Act No. 4 of 1986, as it is intended for former
Presidents.

Moreover, as stated prior, the aforementioned impugned decision of the Cabinet of Ministers
violates the general principle of natural justice.

In the circumstances, I hold that the decision taken by the Cabinet of Ministers dated 15th of
October, 2019, provided the 1A respondent with entitlements beyond the scope offered by the
Presidents Entitlements Act No. 4 of 1986. Further, the said decision is arbitrary, unreasonable,
ultra vires, illegal and amounts to a violation of the Rule of Law and the Fundamental Rights
guaranteed to the petitioners and citizens of Sri Lanka under Article 12(1) of the Constitution.

Accordingly, the application is allowed, and I quash the aforementioned decision of the Cabinet
of Ministers dated 15th of October, 2019 (marked and produced as ‘P12’).

No costs.

Judge of the Supreme Court

E.A.G.R. Amarasekara, J
I agree

Judge of the Supreme Court

Kumudini Wickremasinghe, J
I agree

Judge of the Supreme Court

35