AIR VICE MARSHALL ELMO PERERA v. LIYANAGE AND OTHERS

038-SLLR-SLLR-2003-1-AIR-VICE-MARSHALL-ELMO-PERERA-v.-LIYANAGE-AND-OTHERS.pdf


CA
Air Vice Marshall Elmo Perera
v Livanaae and others (Javasinghe. J.) (P/CA)
331
AIR VICE MARSHALL ELMO PERERA
v.LIYANAGE AND OTHERS
COURT OF APPEALJAYASINGHE, J. (P/CA) ANDEDIRISURIYA, J.
CA 850/98OCTOBER 29 ANDNOVEMBER 23, 2001 ANDFEBRUARY 06,
MARCH 7, ANDAPRIL 4, 2002
Constitution, Articles 30(1) and 35 – Air Force Act, No. 41 of 1949 – Inquirerappointed to determine whether petitioner is a fit and proper person to hold aCommission by HE the President – Legality of appointment – Does certiorarilie ? – Pleasure principle.
The Secretary to the President informed the petitioner (by P1), that HerExcellency the President has appointed the 1st respondent to inquire into andreport on matters set out in P1, in order to determine whether the petitioner isa fit and proper person to hold a Commission in the Sri Lanka Air Force. Thepetitioner contended before the 1st respondent that his appointment is an actof nullity as he could not be legally appointed to inquire into and report on mat-ters set out in P1. The 1st respondent overruled the preliminary objection. Thepetitioner sought to quash the said order overruling the objection.
Held:
The petitioner cannot attack P1 on the basis that it is ultra vires forthe reason that the President was not obliged to institute a fact find-ing inquiry because it was open to the President to terminate the ser-vices of the petitioner on the basis that the'petitioner holds office atthe pleasure of the President.
The 1st respondent was merely carrying out a fact finding inquiry andthe findings or recommendations of the respondent would not be bind-ing on the President. The essential requirement for the grant of cer-tiorari is that rights of subjects should be affected.
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Writ would not lie if the final relief sought is a futile remedy.APPLICATION for a writ of certiorari.
Cases referred to:
The Attorney-General v Kodeswaran – 70 NLR 121
Silver v Louiseville N.R. Co. Ltd. 213 US Reports at 191
Rex v Electricity Commissioner – (1924) 1 KB 171
Perera v Attorney General – (1985) 1 Sri LR 156
Ridge v Baldwin – (1962) 2 All ER 66
Dias v Abeywardena – 68 NLR 409
Bandara v Premachandra – (1994) 1 Sri LR 301
Bandula v Almeida – (1995) 1 Sri LR 309
Admiral V.K.Dissanayake v Chandrananda de Silva – (2000) 1 Sri LR 234
Liyanage v Chandrananda de Silva – (2000) 1 Sri LR 21
Silva v Shirani Bandaranayake – (1997) Sri LR 92,
Victor Ivan v Hon. Sarath N Silva and others – (1998) L Sri LR 340
Karunathilaka v Dissanayake – (1988) Sri LR 37
Vishvalingam v Liyanage – (1988) Sri LR 203
P.S.Bus Co v Mendis, Secretary of Ceylon Transport Board -61 NLR 491Mahinda Ralapanawa for petitioner.
Saleem Marsoof, P.C., Additional Solicitor General with M. R. Ameen, StateCounsel for respondents.
Cur.adv.vult
September 5, 2002
JAYASINGHE, J. (P/CA)
This is an application for a writ of certiorari to quash “P1” and“P10”, the findings by the 1st Respondent.
Petitioner states that the Secretary to the President by his let-ter “P1” dated 27.03.1998 informed the petitioner that HerExcellency the President Mrs. Chandrika BandaranaikeKumaratunga by virtue of the powers vested in her in terms ofArticle 30 (1) of the Constitution and Section 10 of the Air Force Act,
CA
Air Vice Marshall Elmo Perera
v Livanaae and others (Javasinphe, J.) (P/CA)
333
No. 41 of 1949 has appointed Mr. I.M. Liyanage former High CourtJudge to inquire into and report on matters set out “P1” in order todetermine whether the petitioner is a fit and proper person to holda Commission in the Sri Lanka Air Force, viz,
. Whether the petitioner did during the period 02.08.1996 to
grant preferential treatment to an unregisteredsupplier named Mohamed Farook Salih while failing toacknowledge the offers made by other suppliers in theyears 1996 and 1997 and more specifically the offers madeby Wing Commander Bandula Tennakone and MohanKariyawasam.
. Whether the petitioner did on or about the months of March
and April 1997 and in the course of the same transactionknowingly reveal to an unregistered supplier namedMohamed Farook Salih confidential information regardingimmediate and future requirements of attack helicopter gun-ships for the Sri Lanka Air Force.
The inquiry commenced on 14.05.1998 and after the 1st wit-ness H.H.M.R. Premaratna had testified the petitioner commencedhis cross examination and on the next date informed the 1strespondent that the petitioner is not competent to proceed with theinquiry and sought to retain counsel. This application was allowed.When the matter came up for inquiry on 14.08.1998 counsel for thepetitioner took up a preliminary objection that the 1st respondentcould not be legally appointed by the appointing authority and forthat reason the appointment of the 1st respondent is an act of nul-lity and therefore without jurisdiction. The 1st respondent afterhearing submissions held that from the terms of reference it wasclear that the appointment of the 1st respondent is fact finding innature and that the letter of appointment does not require theCommissioner to determine whether the petitioner is a fit and prop-er person to hold a Commission in the Sri Lanka Air Force, butinquire and report to determine the suitability/eligibility of the peti-tioner. That the 1st respondent was not required to meet out pun-ishment as contended but merely empowered to ascertain the exis-tence or non-existence of the factual position itemized under (1)and (2) of “PI".
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The 1st respondent overruled the objection.
The present application is to set aside “P1” and “P10” thefindings of the 1 st respondent. When this matter was taken up forhearing Mr. Saleem Marsoof, PC., Additional Solicitor General tookup two preliminary objections;
ij.That certiorari is not available to the petitioner in the cir-cumstances of this case.
iij.That in any event, this application cannot be maintainedin view of Article 35 of the Constitution.
The learned Additional Solicitor General submitted that itwould be unnecessary to determine whether this application can bemaintained in view of Article 35 of the Constitution if this applicationcan be disposed of in the light of the preliminary objection that writof certiorari is not available to the petitioner in the circumstances ofthis case. He relied on Attorney -General v. KodeswararP) wherethe Supreme Court cited with approval the dicta in Silver v.Louiseville N.R.Co. Ltd.,(2) where it was stated that;
“if a case could be decided on one of two grounds, oneinvolving a constitutional question and the other of statutoryconstruction or general law, the court will decide only the lat-ter”.
This argument was necessitated by the fact that the 2ndobjection questioned the maintainability of the petitioner’s applica-tion in view of Article 35 of the. Constitution which was a constitu-tional issue, jurisdiction being with the Supreme Court.
The petitioner came before this Court alleging “P1” is illegaland that it is an act done in excess of jurisdiction which is also ultravires and mala fide in a broader sense.
It is the submission of learned Additional Solicitor Generalthat writ does not lie for the reason that the finding or findings the1st respondent may arrive at upon the conclusion of the inquirywould not be amenable to certiorari as they would not be a deter-mination affecting rights of persons within the formula enunciated
Air Vice Marshall Elmo Perera
CA v Uvanaae and others (Javasinghe, J.) (P/CA)335
by Lord Atkin in Rex v. Electricity Commissioned and that the peti-tioner is not entitled to prerogative relief in view of his conduct inparticular his acquiescence and the premature nature of the appli-cation for intervention by this Court. The Additional SolicitorGeneral then submitted that in terms of section 10 of the Air ForceAct the petitioner holds office during the pleasure of the President.G.P.S. de Silva, J. in Perera v. Attorney General <4) quoted withapproval the dicta of Lord Reid in Ridge v. Baldwin^5)
“that an officer holding office during pleasure has no
right to be heard before he is dismissed and the reason isclear as a person having the power of dismissal need nothave anything against the officer, he need not give any rea-son. I fully accept that where office is simply held at pleasurethe person having the power of dismissal cannot be bound todisclose the reasons. No doubt he would in many cases tellthe officer and hear his explanation before deciding to dis-miss him”,
Relying on Ridge v. Baldwin (supra) the learned AdditionalSolicitor General argued vigorously that the petitioner’s commis-sion may be withdrawn by the President without an inquiry andwithout adducing any reasons. He further submitted that the peti-tioner cannot complain and writ would not lie if the President grantshim an opportunity to explain his conduct. He submitted that thefindings the 1st respondent would reach at the conclusion of theinquiry would not be determinations affecting the rights of any per-son, but would rather be conclusions of a fact finding nature onmatters set out in “PI”. The Additional Solicitor General further sub-mitted that for the prerogative writ of certiorari to be available cer-tain requirements will have to be satisfied as. explained by LordAtkin in Rex v. Electricity Commissioner (supra).
“Whenever any body of persons having legal authority todetermine questions affecting rights of subjects and havingthe duty to act judicially, act in excess of their legal authoritythey are subject to the controlling jurisdiction of the KingsBench Division”.
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Mr. Marsoof argued that an essential requirement for thegrant of certiorari in terms of the above formula is that rights of sub-jects should be affected. That the 1 st respondent was merely car-rying out a fact finding inquiry and that the findings or recommen-dations of the 1st Respondent would not be binding on thePresident. In Dias v. Abeywardend6) it was held that certiorari willbe refused against a body exercising a merely advisory deliberativeor non binding recommendatory power as such a body is distinctfrom a tribunal having legal authority for jurisdiction to determinerights of subjects.
Mr. Ralapanawa, counsel for the petitioner submitted that thecircumstances of this case falls within the ambit of Rex v. ElectricityCommissioner (supra) in that certiorari would issue to any body ofpersons having legal authority to determine questions affectingrights of subjects and having a duty to act judicially. He argued thatin the final analysis Her Excellency the President may or may notdetermine whether the petitioner is a fit and proper person to holda commission and he submitted that it is plain on authorities “theTribunal need not be one whose determinations give rise to anylegally enforceable right or liability. Its determinations may be sub-ject to certiorari notwithstanding it is purely a step in the process….”as per Lord Diplock. His submission is that “P1” is a step in theprocess.
Counsel for the petitioner submitted that he has come beforethis Court not to quash the findings which the 1st respondent mayarrive at and therefore the application is not against the conclusionswhich the 1st respondent may arrive at after the inquiry. The peti-tioner states that the application before Court is to quash by way ofwrit findings or order which the 1st respondent has made holdingthat he has jurisdiction to hold an inquiry vide “P1” and to quash“P1” issued under the hand of the 2nd respondent as its issuanceis bad in law.
CA
Air Vice Marshall Elmo Perera
v Uvanaae and others (Javasinghe J.) (P/CA)
337
It is in my view however the petitioner cannot attack “P1” onthe basis that it is ultra vires for the reason that the President wasnot obliged to institute a fact finding inquiry because it was open tothe President to terminate the services of the petitioner on the basisthat the petitioner holds office at the pleasure of the President. Thepetitioner cannot be heard to complain as a beneficiary of a con-cession which has been allowed to him. It is also necessary to noteat this point that the petitioner assumes that thereVnight be a find-ing against him by the 1st respondent. That may or may not be so.Once the 1st respondent comes to a finding in terms of “P1” thePresident may make a determination whether the petitioner is a fitand proper person to hold a commission. Here again the Presidentmay or may not make that determination. To that extent the learnedAdditional Solicitor General’s submission that there is no determi-nation affecting rights of persons within the formula enunciated byLord Atkin in Rex vs. Electricity Commissioner is not unfounded. Iaccordingly hold that certiorari is not available to the petitioner inthe circumstances of this case.
Learned counsel for the petitioner also submitted that thepleasure principle as found in section 10. of the Air Force Act is notunfettered in that the President does not enjoy unlimited power.Immunity of the President in terms of Article 35 and the pleasureprinciple as found in Article 55(1) are two distinct issues. Thelearned counsel for the petitioner sought to attack the immunity ofthe President on the basis that it is not unfettered. HoweverBandara vs. PremachchandrsP) relied upon by him to support hiscontention that the immunity of the President is not unlimited in factdealt with the pleasure principle in Article 55(1).. To that extentBandara vs. Premachandra (supra) relied upon by counsel has noapplication. Court held that the pleasure principle in Article 55(1) ofthe Constitution is subject to the equality provision of Article 12 andmandates fairness and excludes arbitrariness. Clearly that does notgive expression to the powers exercised by the President. Bandulav. Almeida(®) relied upon by counsel for the petitioner sought toquash the order made by the President under section 2 of theUrban Development Authority (Special Provisions) Law. Here thechallenge was in respect of acts covered by Article 35(3) of theConstitution that the President was acting in a capacity qua
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Minister and the findings have no application to the issue beforeCourt. In Rear Admiral V.K. Dissanayaka v. Chandrananda deSilva(9) the petitioner sought relief under Article 12(1) of theConstitution with regard to the failure of the respondents to submithis redress of grievance to the President. Clearly the petitioner can-not draw support from the reasoning of this case.
In Liyanagts v. Chandrananda de S//va<10) it was held that thefailure to implement the recommendations of the Army Commanderwas violative of Article 12 (1) of the Constitution. However when theSecretary submitted the recommendation of the Army Commanderto the President, the President refused to act and the Court wasunable to grant any further relief.
In Silva v. Shirani BandarailSyakeW Court held that thePresident has sole discretion of appointing Supreme Court Judges;the power is discretionary and not absolute. It is neither untram-meled or unrestrained and ought to be exercised within limits. Thecounsel sought to rely on this phrase to demonstrate, that the plea-sure principle is diluted. However what the Supreme Courtobserved was that the limits are in – built in Article 107. TheSupreme Court observed that if for instance, the President were toappoint a person who, it is later found, had passed the age of retire-ment laid down in Article 107(5), undoubtedly the appointmentwould be flawed and that in such a situation Article 125 would thenrequire Court in appropriate proceedings to exercise its judicialpower in order to determine those questions. The Supreme Courthowever did not elaborate. Obviously what was in contemplation ofthe Supreme Court was a situation where the appointment waspatently irregular. In Victor Ivan v. Hon. SarathN. Silva & Otherd12)Wadugodapitiya. J. held;
“ the Constitution itself gives the President immunity
under Article 35(1) thereof and therefore she cannot bebrought before Court to answer for her actions”
“under the law as it stands we shall never know why
and wherefore of this appointment because it is only thePresident herself who knows the answer to that ques-tion” until that is known, one cannot fault the President
in anyway for the simple reason that she may well be pos-sessed of good and ample reasons"
CA
Air Vice Marshall Elmo Perera
v Liyanage and others (Javasinahe J.) (P/CA)
339
Even though the Additional Solicitor General did not pressthe second preliminary objection he however contended that thisCourt is fettered from questioning an act of the President in view ofArticle 35(1) which stands in the way of embarking upon an inquirywhy the President has done the impugned act. It must also be men-tioned that Karunathilaka v. Dissanayakd13) and Vishvalingam v.Liyanagd14) relied upon by the petitioner has no application in thepresent context. Karunathilaka (supra) has no application in thatCourt held that Article 35 only prohibits the institution of legal pro-ceedings against the President while in office. It does not excludejudicial review of an impugned act or omission against some otherperson who does not enjoy immunity from suit but relies on an actdone by the President in order to justify his conduct. The 2ndrespondent in this case was only the medium of communcation ofa presidential directive. In Vishvalingam (supra) Court held thatthough the President is immune from proceedings in Court a partywho invokes the acts of the President in his support will have tobear the burden of demonstrating that such acts of the Presidentare warranted by law.
Mr. Ralapanawa submitted that “P1” is liable to be quashedon the basis that it had been issued by the 2nd respondent. Thissubmission is not tenable. All that “P1” does is to inform the peti-tioner that Her Excellency the President has appointed Mr. I.M.Liyanage, former High Court Judge to inquire into and report onmatters set out in “P1" in order to determine whether the petitioneris a fit and proper person to hold a commission in the Sri Lanka AirForce. However the exercise of the powers vested in the Presidentin terms of Article 30(1) and section 10 of the Air Force Act has infact been exercised by the President and conveyed to the 1strespondent as found in 2R1. The 2nd respondent has nothing to dowith it. The instrument creating the commission is however notbefore Court. Even if this Court is to set aside “P1” the original actof appointment by the President and conveyed to the 1 st respon-dent by “2R1” still survives. In P.S. Bus Co. v Members &'Secretary of the Ceylon Transport Board (15) Court held that writwould not lie if the final relief sought is a futile remedy. If the appont-ment of the 1 st respondent is not set aside it would be futile toattack “P10”. In view of the fact that there is no challenge to the
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appointment of the 1st respondent it is unnecessary to come to afinding on the second preliminary objection.
The application for writ is accordingly refused. We make noorder for costs.
EDIRISURIYA, J. – I agree.
Application refused.