According to a report in the press (Daily News July 26, 2006) the Chief Justice is quoted as having said:
‘”go slow” activity as a pernicious act committed against the whole country. He noted that the whole country had to suffer because of the strike country also lost billions of rupees.’ [sic]
The argument by the counsel acting for the trade unions which were engaged in the “go slow” at the Harbour, that it was in fact a legal trade union action recognised by international covenants of ILO, was also rejected by the Chief Justice. The Supreme Court issued extended interim orders restraining the 14 trade unions and its members from engaging in any type of “go slow” activity that would hamper the day to day operations of the Colombo port. The petitioners in this case were representing a private company by the name of Joint Apparel Association Forum. In a fundamental rights application the company’s representatives claimed that:
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the action was illegal since “go slow” activity was not a legitimate trade union action hampered day-to-day operations of the Colombo Port out one which imposing huge loosing in the billions of rupees to the apparel exporters the Government and the people as a whole and was in violation of their rights [sic].”
The action of the 14 trade unions was for the purpose of achieving certain demands from their employers. As the employers had not met with their demands the unions took action with a “go slow”.
The thesaurus defines a “go slow” as a form of protest by the workers in which they deliberately slow down in order to cause problems for their employers. It further explains a “go slow” as a temporary action by workers to protest management decisions or to make demands.
To decide whether anything is legitimate or not from a legal sense the court must look into whether there is any law forbidding a particular activity. In law something is illegitimate only when it contravenes a particular law. There is no law in Sri Lanka which makes go slows illegal. Therefore there is a legitimate question as to the validity of the court’s decision that holding a go slow is illegitimate. Whatever a court decides which is not based on law is in fact illegitimate. Thus, this statement of the Chief Justice is clearly bad in law.
This dispute is one between employers and employees. The employees are represented by the trade union. This is therefore a private dispute. This is not a dispute between the trade unions and the nation. The petitioners in this case are not representatives of the nation. The Chief Justice’s comment that this trade union action by way of a go slow harms the nation could not have arisen from the matters raised in this case. The equating of employers with the nation has a consequence on the whole population as the employers consist of only a very small portion of the Sri Lankan people. Thus once again such characterisation of the employer’s interests with national interests and employees activities as being anti-national activities cannot be justified within any legal discourse. Even in a political discourse such characterisation cannot be justified within a democracy. Only under a fascist regime were the people’s protests, including trade union protests, characterised as anti-national activities. In fact the entrance of this type of terminology into a statement made by the highest judicial officer should be questioned from the legal, political and moral standpoints.
The world has travelled a long road away from the conception that the interests of the employer are a primary national interest. Such conceptions belong to societies where labour is treated with contempt and workers are treated as persons without rights. Displacement of this conception has been one of the greatest achievements since the development of legal principles which consider that all citizens, irrespective of what ever status, are equal before law.
In Sri Lanka the idea that people were not equal before the law existed up to 1931 when the Donoughmore Commission granted adult franchise on the basis of the equality of all persons. Before this under the British regime only landed proprietors, merchants and later English educated persons of some categories had the right of making any representation through the official channel which from 1833 to 1931 was the Legislative Council. That conception of treating economically more advantaged persons, who were the ones who would be treated with favour, was abolished by the colonial power itself. The equating of nation with such special categories as landed proprietors, merchants and employers belongs to that by-gone era.
The Supreme Court on an earlier occasion has held that although there is a right to form trade unions this is not a fundamental right. However, now the employers have been allowed to come before court to complain of fundamental rights violations by employees. There is something radically wrong in the misuse of fundamental rights jurisdiction in this manner.
On an earlier occasion when refusing to grant leave to appeal to the Supreme Court on the 17th Amendment issue filed by a citizens group the Supreme Court requested the Attorney General to consider whether any action should be taken for filing applications that the court considered frivolous, the Asian Human Rights Commission warned that some judges of the Supreme Court who have adjusted to executive control are turning against civil society organisations (please see AS-159-2006), and now this is being extended to the trade unions also.
It is unfortunate that many fear to discuss such very important issues as the comments of the Chief Justice in this case for the fear of contempt of court. The example of the punishment of Tony Fernando, allegedly for speaking too loudly in court to one year of rigorous imprisonment and later the judgment on SB Dissanayake for two years of rigorous imprisonment haunts many in talking about these issues. A climate of extreme fear exists also among many lawyers to participate in legitimate questions of law and the judicial role. All this may act to destroy the basic rights of workers and other rights won over centuries of struggle throughout the world including Sri Lanka. In this instant the particular comments on go slows as being a pernicious activity and other comments about national interests should be taken as purely personal opinions of the Chief Justice and not as an expression of the law in Sri Lanka on these matters. Other citizens also have a right to challenge the Chief Justice’s views on this matter.
