035-SLLR-SLLR-2001-V-3-AMERASINGHE-v.-DALUWATTE-AND-OTHERS.pdf
AMERASINGHE
v.
DALUWATTE AND OTHERS
COURT OF APPEAL
U. DE. Z. GUNAWARDENA. J.
C.A. 128/98NOVEMBER 5. 1999JANUARY 27, 2000NOVEMBER 8, 2000JULY 31. 2001
Writ of Certiorari – Army Court of Inquiry – Guilty of Homosexual acts -Natural justice – Regulation 15 – Substantial compliance with the rulesof natural justice – right to be present "throughout" – summons -conditions essential to exercise of jurisdiction. Immunity oj thePresident.
The Petitioner sought to quash the proceedings of the Army Court of Inquiryand prayed that the order withdrawing the commission from the Petitionerwho was a Temporary Major in the army be quashed. The Court of Inquiryafter an inquiry had found the Petitioner guilty of indulging in Homo Sexualacts and practicing sodomy with some of Army Officers/ non commissionedofficers. The Commission was withdrawn by Her Excellency the President.
It was contended that the Court of Inquiry had failed to observe theprinciples of natural Justice.
Held :
Out of eight witnesses who gave evidence at the Inquiry only one witnesshad given evidence in the presence of the Petitioner.
Regulation 15(1) lays down that "whenever an Inquiry affects thecharacter or the Military reputation of an officer or soldier he shallbe afforded an opportunity of being present throughout the Inquiry.
Regulation 15(2) Court of Inquiry was under a duty to have acquaintedthe petitioner of his rights under Regulation 15(1) – the right to bepresent throughout the Inquiry being only one such fundamental right.
The jurisdictional fact, l.e. service of Notice or sumons did not -exist before the inquiry commenced, therefore Court of Inquiry lackedthe power and authority or the jurisdiction to enter upon the Inquirybecause, the condition absolutely essential to the exercise ofJurisdiction was the summons or notification to the Petitioner to be
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present on an appointed date at a named place. As such the ultimatedecision made by the Court of Inquiry Is a nullity, although thePetitioner appeared at a later stage of the Inquiry.
(Ill) It is an Inflexible and deep rooted principle of law that no act ordecision which is void at Its Inception can ever be ratified, there Is noscope for the argument that the subsequent appearance of the Petitioneror the fact that he did cross examine witnesses amounted to aconfirmation of the act of wrongful assumption of jurisdiction (at thebeginning) which was patently void.
Service of Notice/Summons notifying the Petitioner that an inquirywill be held to inquire into charges against him, at an appointed timeand a named place is an out and out jurisdictional fact or a conditionprecedent i.e. a fact which gives jurisdiction which must of necessitybe fulfilled or must exist before the Court of Inquiry could haveproperly assumed the power or the jurisdiction to inquire into theallegations against the Petitioner.
It is not possible to quash the order withdrawing the commissionsince the Order has been made by Her Excellency the President, thePresident's actions or orders cannot be challenged in Court.
APPLICATION by way of a Writ of Certiorari.
Cases referred to :
General Medical Council u. Spademan – 1943 AC 627.
Earl u. Slater – 1973 – 1 SLR 51
Chief Constable of North Wales Police v. Erans – 1982 – 1 WLR1155.
Agricultural, Horticultural Board v. Kent – 1970 1 Ail ER 304
London and Clydeside Estates u. Aberdeen – DC 99 3 AER 871.
EX Parte Polemis – 1974 2 AUER 1219.
Gunaratna u. Chandrananda de Silva – 1998 3 SLR 267
Jayatileka u. Attorney General – CA 1157/99
R. K. W. Gunasekera with Rohana Jayawardena for Petitioner.
Shavlndra Fernando, S. S. C for Attorney – General.
Cur. adv. vult.
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March 13, 2001.
U.DE Z. GUNAWARDANA, J.This is an application for a writ of certiorari quashing theproceedings of the Army Court of Inquiry of which the 3rdrespondent was the President and the 4th and 5th respondentsrespectively, were the members. The petitioner had also prayedthat the order withdrawing the commission from the petitioner,who was a Temporary Major in the army, which order waspublished in the Gazette dated 4-4-1996 be also quashed bycertiorari. The said Court of Inquiry, after an inquiry, had foundthe petitioner, who was a Temporary Major in the regular force,guilty of indulging in homosexual acts and practising sodomywith some army officers and with non-commissioned officers,like corporal and riflemen. The Army Commander acting onthe report dated 2. 9. 95 of the Court of Inquiry hadrecommended to Her Excellency the President to withdraw theCommission of the petitioner. Accordingly, Her Excellency hadbeen pleased to do so.
The substantial, if not, the only complaint made by thelearned Counsel for the petitioner was that: the Court of Inquiryhas failed to observe the principles of natural justice in that thestatements of the witnesses had been recorded before the Courtof Inquiry in the absence of the petitioner, whose position beforethe Court of Inquiry was analogous to that of an accused, say ina criminal case. It is appropriate to consider the abovesubmission in the light of the regulation 15 of the Army Courtsof Inquiry framed in 1952. The relevant regulation reads thus:
"15(1) whenever an inquiry affects the character or themilitary reputation of an officer or soldier, the officer orsoldier concerned shall be afforded an opportunity of beingpresent throughout the inquiry. He shall also be allowedto make a statement, to adduce evidence in his own behalfand to cross-examine any witnesses whose evidence islikely to affect his character or military reputation.
"15(2) The president of the Court shall take such steps asmay be necessary that any person so affected and not
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previously notified receives notice of his rights under this
regulation and satisfy himself that that person fully
understands them."
The relevant regulation reproduced above is clear. It statesthat the officer or the soldier whose character or reputation isaffected by the statements or evidence led at an inquiry, "shall"be afforded an opportunity to be present at the inquiry"throughout" which literally means that the soldier or officerconcerned has a right to be present at every stage of the inquiry,right through, from end to end of it. In his written submissionsMr. R.K.W. Gunasekera, learned counsel for the petitioner, hadexplained that the term "throughout", that is employed in theabove-mentioned regulation, means from "the beginning to theend" of the inquiry.
It is common-ground that out of the eight witnesses whogave evidence at the inquiry, only one witness viz. Capt.Ratnayake had given evidence in the presence of the petitioner.But the fact that sill six witnesses who alleged indecent sexualattacks on them (by the petitioner) had all given evidence in theabsence of the petitioner calls for remark. The learned SeniorState Counsel, who appeared for the respondents, submittedthat there was substantial compliance with the aforesaidregulation 15, in that the statements (evidence) of all thewitnesses who had given evidence in the absence of thepetitioner, were read over to the petitioner, who had been affordedan opportunity to cross – examine them (witnesses). Thequestion is, would substantial compliance suffice? To put thematter in another way, was the requirement in regulation 15,above – mentioned, viz. that the officer or soldier concerned shallbe afforded an opportunity to be "present throughout theinquiry," mandatory or directory? If the requirement wasmandatory, law demands strict compliance with the regulation,that is, to the very letter. If the regulation 15 is mandatory thereshould be adherence thereto in both form and substance, onthe contrary, if the regulation was intended to be directory it issufficient if there had been compliance with it in its main pointsi.e. substantially.
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In the conduct of the inquiry, the Court of Inquiry had notcomplied with, really, two of the conditions or requirements ofregulation 15 – although the learned Counsel who appeared forthe petitioner touched on or brought into prominence only oneof them, that is, that the petitioner was not afforded anopportunity to be present at the inquiry, "throughout". The otherrequirement, which both the Court of Inquiry and the learnedCounsel who appeared before me had overlooked, was thatcontained in regulation 15(2), that is, that the Court of Inquirywas under a duty to have acquainted the petitioner of his rightsunder regulation 15 – the right to be "present throughout" theinquiry being only one such fundamental right.
It is common for statutes and regulations to lay downprocedures that are to be followed in administradve matters orin conducting inquiries. To take some typical examples: theymay provide a right of appeal: that persons should be givennotice of action or steps to be taken within a specified period:that particular bodies are to be consulted before a decision ismade; that reasons for a decision have to be adduced. Thebasic difficulty is this: that the Act or the regulation will rarely, ifat all, state what should happen or occur, if, in practice, theprocedure is not strictly adhered to. which means that the Courtshave to decide on the effect of non-compliance. The courts willtreat some procedural rules or regulations as mandatory,meaning that, in general, non-compliance therewith will renderthe decision or the proceedings invalid or void. Other rules,depending on the circumstances, will be interpreted in apermissive sense and so held to be directory, which would meanthat these rules ought to be adhered to. but that rigid adherenceto them is not insisted upon, so that failure to observe directoryrules will not render the resulting decision invalid. Into whichone of the categories, described above, a rule or regulation willfall depends upon judicial interpretation of the statutoryprovisions or the regulations. In this case, one has to weighthe benefits that would accrue by adhering rigidly to the rule,against the inconvenience or disadvantages that would becaused to either of the two parties by not complying with therequirement viz. that the officer, whose conduct was being
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investigated by the Court of Inquiry, should be present"throughout" the inquiry.
I cannot bring myself to hold that the mistake that theCourt of Inquiry had made in not affording the petitioner an"opportunity of being present throughout" is a trifling one for itis a cardinal right of prime importance designed as a safeguardfor individual rights. In not affording to the petitioner anopportunity of being present when seven of the eight witnessesmade their statements or gave what, in effect, was evidence – in- chief, the Court of Inquiry had given a hearing to the witnesses,who had made damning allegations against the petitioner,gravely affecting the petitioner's reputation, but behind the backof the petitioner. If the petitioner had been present from thebeginning of the inquiry the petitioner could have seen for himselfwhether or not the evidence or the statements of the witnesses,who made such serious allegations against the petitioner, wasgiven voluntarily. In fact, the petitioner had alleged that the Courtof Inquiry was constituted in consequence of a conspiracyagainst him. taking advantage of the petitioner's absence fromSri Lanka. And, it is not without interest to note, that, at least,one witness viz. Rifleman Thilak, who had, in the absence ofthe petitioner, given evidence at the inquiry to the effect that thepetitioner committed grossly indecent sex acts on him, hadtendered affidavit evidence (X19) to the Court of Appeal that he(Thilak) made that statement or gave such evidence implicatingthe petitioner under coercion or threats.
Regulation 15 must be held to be mandatory because theviolation of that regulation by the Court of Inquiry, partialthough the violation be, had obviously prejudiced the individualright of the petitioner to be physically present throughout theinquiry. The absence of the petitioner when the evidence, ofseven witnesses, out of a total eight, was recorded greatlyenhanced the risk of the witnesses perjuring themselves for,human nature being what it is, the witnesses would have feltfreer to make false allegations or exaggerate them in the absenceof the person whom they were calumniating or whose reputationthey were attacking. It is not difficult to visualize that it was toguard against such dangers or risks that the regulation 15
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required the Court of Inquiry to ensure that the officer or soldierwhose conduct was being investigated, "shall be afforded anopportunity of being present throughout the inquiry." Theproceedings in an ordinary Court of Law are held in publicbecause publicity will reduce the scope for misdemeanours andwrongdoing on the part of those who make decisions. Likewise,the presence of the petitioner would have tenderd to removeany suspicion in regard to the regularity and propriety of theproceedings. The presence of the person against whom aninquiry is held will also be, somewhat, of a constraint againstfalse evidence being given. In this case the absence of theaccused, perhaps, would have freed, in some measure, thewitnesses from all constraints against temptation to lie – if theychose. And there is a real risk, that if witnesses wereemboldened to give false evidence by the fact of absence of theaccused – they will be bound to stay committed to that falseversion, to the very end. I think it was to guard against suchrisks that rule 15(1) sought to ensure to the soldier or officer,whose character was assailed, a right to be present "throughout”the inquiry.
In this case there is a real likelihood of harm or damage orprejudice to the person who is the subject of inquiry by notbeing afforded an opportunity to be present from the beginning.In fact, no one gains any benefit from holding the inquiry in theabsence of the accused, except that the witnesses, as statedabove, will feel freer to take liberties with the truth – if they areso inclined. If, in fact, the Court of Inquiry by holding the inquiryin the absence of the petitioner who was out of the country, wasaiming at speed of decision – even then, that object could not beachieved for the Court of Inquiry had to necessarily await thereturn of the petitioner for the petitioner had to be given anopportunity to cross – examine the witnesses and give evidenceon his own behalf. No reason has been given by the respondentswho constituted the Court of Inquiry as to why they could nothave waited till the petitioner arrived from India to start theinquiry.
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The inquiry before the Army Court of Inquiry is a veritabletrial in secret, in that it is not one that the public is free to attend.
The Court of Inquiry, as a matter of practice holds itsproceedings, so to say in secret or in private and such proceedingsare intended to be kept from the knowledge or view of the public.Unlike the proceedings in a regular Court of Law, the Court ofInquiry is not freely open to public or spectators. As such, therewas a greater reason for, at least, the person accused ofcommitting certain acts or offences to have been afforded anopportunity to be present from the beginning of the inquiry toensure that nothing untoward or irregular occurs in the courseof proceedings and that such proceedings accord with proprietyand regularity. Considering the seriousness of the charges orthe allegations and the repercussions of the potential penaltythat was in prospect or likely, the Court of Inquiry should havemade every endeavour to "reach a just end by just means"
The right of the petitioner to have been present at the inquiryat which most serious allegations that can possibly be conceived,were made, is I think, an integral part of the principle of audialteram partem (hear the other side) rule. The principle thatno man should be condemned unheard is one regarded withreverence and ought not to be lightly disregarded. There is nopoint in hearing the other side if the "other side" does not knowwhat the side beginning had said, and unless "the other side"is afforded a reasonable and genuine opportunity to meet andrepel the allegations.
It is said: "qui aliquid statuerit parte inaudlta alteraacquum licet discertt, hand acquumJecerit" – which means thathe who determines any matter without hearing both sides,though he may have decided right, has not done justice. Theabsence of the petitioner when the evidence of seven out of theeight witnesses was recorded breaches, at least, to some extentthe fundamental principle of audi alteram partem" because itis by being physically present at the inquiry that one comes toknow the opposing case and consequently, what one has to sayin defence of oneself, for it is, somewhat, akin to a futile
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proceeding, if not a pretence, to give a hearing to party on whosereputation aspersions were cast, when one was not present norrepresented.
It is true, that when the petitioner appeared before the Courtof Inquiry – six of the statements that were recorded in hisabsence were read over to him and that the petitioner cross-examined or rather he was required, to cross-examine thewitnesses, be it noted, on the same day i.e. on 30.06.1995. It isto be observed that the six witnesses (who were thus cross-examined by the petitioner on 30.06.1995) were the witnesseswho had given evidence on two earlier dates alleging that thepetitioner committed on them sex acts of gross indecency. I thinkthe right of the petitioner to be present "throughout" the inquirywas as important, if not, even more important than the otherrights conferred upon the petitioner under regulation 15(1) -the other rights being to give or adduce evidence on his ownbehalf and cross-examine witnesses. The right to be heard inopposition, i.e. the "audi alteram partem" rule would not havemuch efficacy or, for that matter, any efficacy, unless one has theright to be present to know the case against one. In that sense,it could be said that "audi alteram partem” rule is based onthe right to be present at an inquiry, if, in fact, the right to bepresent is not an integral part or a constituent attribute of theaudi alteram partem rule. The petitioner's presence from thebeginning was an essential element in the due process. I amnot disposed towards relaxation of the requirement viz. thatthe petitioner should be given an opportunity to be "presentthroughout the inquiry" – considering the pivotal nature of theprinciple involved upon which that requirement had beenprescribed by regulation 15(1) of the Army Courts of Inquiry.As pointed out above, the Court of Inquiry had devised its ownprocedure by recording the statements or the evidence of all thewitnesses except one (in the absence of the petitioner) andthereafter reading over the evidence to the petitioner andrequiring the petitioner to cross- examine the witnesses – therebyneglecting the procedure prescribed by the said regulation 15.To be wiser than the law, said Aristotle, is the very thing whichby all good laws forbidden. (neminem oporter legibus essesapientiorem – it is not permitted to be wiser than the laws) It
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is worth repeating, however, that the evidence of all the witnesses(six in number) who alleged that the petitioner committedindecent sexual assaults upon them were recorded in theabsence of the petitioner who was required as pointed out above,to cross-examine all those six witnesses on one single day i.e.on 30.06.1995. For there to be a fair hearing there is anassumption that there will be sufficient notice or time given toallow the petitioner or any party, for that matter, to be adequatelyprepared.
To be able to cross-examine, on one single day, six witnesses,at a stretch, whose evidence had been merely read over, onehas to be not only a skillful cross-examiner but also has to beexceptionally quick on the uptake. I cannot bring myself tobelieve that the petitioner who was a soldier or army officer wasgifted in these respects to the degree required to accomplish orundertake such a task as he did or was made to assume on30.06.1995 – as explained earlier.
The learned Senior State Counsel who appeared for therespondents, submitted that even if the petitioner had beenafforded an opportunity to be present "throughout" it wouldnot have made any difference to the outcome or the ultimatedecision of the Court of Inquiry that the petitioner was guilty ofthe allegations made against him in the statements or theevidence of the witnesses. I think the answer to that submissionis to be found in the judgment of Lord Wright In the GeneralMedical Council v. Spademan'" He said: "If the principles ofnatural justice are violated in respect of any decision it is indeed,immaterial whether the same decision would have been arrivedat in the absence of the departure from the essential principlesof justice. The decision must be declared to be no decision." Inthe case of Earl v. Slater'21 it was held that the tribunal haderred in holding that an unfair procedure which led to noinjustice was incapable of rendering unfair – a dismissal whichwould otherwise be fair. In other words, dismissal of an employeewithout hearing was held to be unfair and therefore invalid,even though the dismissal was fully justified.
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Assuming that no prejudice had been caused to thepetitioner, even then, the decision or the findings of the Court ofInquiry ought to be quashed, since the Court of Inquiry hadbeen at fault in not ensuring that there was fairness to thepetitioner at every stage of the inquiry. As Lord Brightmanobserves: "Judicial review is concerned, not with thedecision but with the decision making process" ChiefConstable of North Wales Police v. Erans131
In the case Agricultural, Horticultural Board v. Kent141 anotice was sent out which neglected clearly to indicate that therecipient had a right of appeal or address to which the appealsshould be sent. It was held that this failure was sufficient toinvalidate the notice as the right of appeal was of first importance.This was again illustrated in London and Clydeside Estates v.Aberdeen151 In this instance, there was a breach of a statutoryrequirement under the Land Compensation (Scotland) Act1963, taken in conjunction with the Town and CountryPlanning Order 1959, in that a decision from the local authoritycontained in a certificate, delivered to the applicant omitted tomake any reference to the statutory right of appeal. Despite itbeing apparent that the company involved was aware that ithad a right of appeal, it was held that proper notice of this rightwas mandatory. The certificate was set aside by the Court onthe ground that it was breach of the mandatory requirement,even though no prejudice had been suffered by the applicant.In that case, although the applicant had suffered no detrimentas result of the failure to adhere to the procedural requirement,the decision of the local authority embodied in the certificatewas quashed because it was not indicated thereon, incompliance with the procedural requirement, that there was aright of appeal against the same because the provision grantinga right of appeal, under the statute, was treated as offundamental importance. None of the authorities referred toabove in support of the petitioner's case was cited by the learnedcounsel for the petitioner. I would have appreciated it very muchif the learned counsel had been more helpful. In the case inhand the right of the petitioner, on whose character graveaspersions were cast, to be present when such attacks onreputation were made is no less important, more so as the right
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to be present throughout was given to provide a safeguard tothe petitioner, whose character was the subject of inquiry, non-observance of which safeguards was fraught with real potentialdangers, as indicated above.
One notices other obnoxious features, associated with thisinquiry into the allegations against the petitioner, for as indicatedabove, the Court of Inquiry had not only paid no heed to therequirement in regulation 15(2) which imposed on the Court ofInquiry a duty to apprise or inform the petitioner of his rightsunder regulation 15(1) but had also failed to afford thepetitioner reasonable amount of time to respond to and preparea case.
If the Court of Inquiry, as was its duty under regulation15(2), had made it known or acquainted the petitioner withthe rights that the petitioner was entitled to under regulation15(1) – one of such rights being the right to be present"THROUGHOUT" the inquiry, the petitioner, in all probability,would have asked the Court of Inquiry to get the witnesses tomake statements or give evidence afresh in petitioner's presencewhich would have afforded the petitioner greater time to reflecton such evidence and think of how to cross-examine thosewitnesses. An aspect, a crucial aspect at that, of a fair hearing ishaving a right to know the opposing case in advance orbeforehand. This gives a party to any proceedings the chanceto challenge or contradict or correct anything that is presentedto a decision maker that might be prejudicial to the party's case.I would further note that the amount of time that a party hasbeen given will be a significant factor. Even if details of thestatements of the witnesses were provided, I feel the petitionerhad not been afforded sufficient opportunity or rather time, torespond and to prepare a case. Fhilure to give adequate time tomeet the allegations or changes had been central in the decisionof the Magistrates' Court, Exparte Polemis16’ the facts of whichwere as follows: the captain of a ship received a summons, tothe Magistrates, Court on the day that his ship was due to sail.He was charged with discharging oil into the Thames. An
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adjournment was refused by Court and he was found guiltyand fined. The conviction was quashed because the defendanthad not been allowed sufficient time to respond and as aconsequence, there had not been a reasonable opportunity toprepare the defence. Lord Widgery CJ asserted that in suchcircumstances the requirements of justice would not havesatisfied the test of being manifestly seen to be done, whateverthe jurisdiction. Of course, no complaint had been made by thepetitioner or his counsel in the case before me, on the basis ofinsufficient time to prepare. But I, in all conscience, cannotpretend not to notice such a conspicuous fact for on the sameday i.e. on 30.06.1995 that the six statements or the evidenceof all the six witnesses had been read over to the petitioner, thepetitioner had been obliged to cross-examine the six witnesses(who had not given their preliminary evidence in the presenceof the petitioner) and who had alleged the Commission ofvarious sex acts on them by the petitioner.
Of course, there is nothing recorded by the Court of Inquiryto show that the petitioner asked for time to get ready to cross-examine or to adduce evidence on his own behalf. Perhaps, thepetitioner sensed the atmosphere in the Court and felt that itwas futile to ask for an adjournment of the proceedings; or else,the petitioner was not conscious of his rights – the petitioner,being undefended. I think the lawyers are barred from appearingin the Army Court of Inquiry mainly because of a desire to avoidformality and protracted nature of Court proceedings. Thelawyers have only themselves to thank. Anyhow, one cannot beoblivious of the fact; judlcla In deltberationibus crebromaturescunt in accelerato processu nunquam – which meansjudgments frequently become matured by deliberations andnever by hurried process or precipitation. I am stating theobvious when I say that there are many individuals affected bydecisions who are not capable of arguing or presentingtheir case in the most favourable light possible. And I am nottreating the fact that the petitioner enjoyed no right to legalrepresentation before the Court of Inquiry as a ground forgranting the certiorari or as a breach of the principles of naturaljustice. But I cannot resist quoting an excerpt from an eloquent
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pronouncement of Lord Denning, on the question of access tolegal representation. To quote: "It is not every man who hasthe ability to defend himself on his own. He cannot bringout the point in his favour or weaknesses in the other side.He may be tongue-tied or nervous, confused or wanting – inintelligence. He cannot examine or cross-examine witnesses
if justice is to be done, he ought to have the help of
someone to speak for him; and who better than a lawyerwho has been trained for the task? I should have thought,therefore, that when a man's reputation or livelihood is atstake, he not only has the right to speak by his own month.He also has a right to speak by counsel or solicitor"
It is a fact that calls for remark that in consequence of thisinquiry the petitioner had lost both his reputation and hislivelihood for his commission had been revoked or withdrawnby Her Excellency, presumably, on the recommendation of theArmy Commander.
As remarked above, the Court Inquiry was under a dutyunder regulation 15(2) to have enlightened or informed thepetitioner of the petitioner's rights under regulation 15( 1) – mostfundamental out of them being the right to be present at theinquiry "throughout". The right to be present "throughout" isthe most cardinal right because it is that right that serves as thefoundation for the other two rights that the petitioner wasentitled to, the other two rights under regulation 15(1) being:
the right to adduce and give evidence on his own behalf and
the right to cross-examine witnesses. As I had said before,the latter two rights, that is the right to adduce evidence indefence and the right to cross-examine are based on the rightto be present "throughout" for if the right to be present is denied
the other two rights cannot be exercised at all, which two last
mentioned ought to be treated as lesser rights, arising fromthe right to be present, more so as legal representation was notpermitted before the Army Court of Inquiry. How can such arequirement as that viz. the right to be present "throughout" beconsidered as directory if the two lesser rights or requirementsabove – mentioned, cannot be treated as such? This fact servesto highlight or bring into prominence the importance of the
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requirement that the soldier or the officer proceeded against,should be present throughout the inquiry. If the requirementthat the person whose character or conduct is being inquiredinto shall be present "throughout" the inquiry is not consideredto be a compulsory condition or requirement, then the right toadduce evidence and right to cross-examine (being derivativesfrom the right to be present) which two rights are lesser rightsin relation to the right to be present also cannot be consideredto be mandatory requirements. It cannot be againsaid that theright to cross-examination and the right to adduce evidence tomeet the opponent's case are significant issues in determiningwhether or not there has been a fair inquiry or hearing.
There is one other point which is last to be mentioned butnot least in importance: that is. that the Court of Inquiry whenit commenced its inquiry on 11. 06. 1995 was wholly andabsolutely devoid of any power or jurisdiction to record theevidence in the absence of the petitioner. As the Court of Inquiryhad no power to determine or jurisdiction at the inception -needless to say, it never did or rather could not ever regain itthereafter. It is to be recalled that out of the eight witnesses whohad given evidence against the petitioner, the evidence of sevenhad been recorded in the petitioner's absence. As had beenpointed out earlier on in this order, regulation 15(1), whichprescribes and directs the inquiry affecting the character andreputation of an officer or soldier states that the "officer or soldierconcerned shall be afforded an opportunity of being presentthroughout the inquiry" But, in this case the petitioner was notpresent when the evidence of the first six witnesses wasrecorded, that is, when the inquiry began or was initiated, (Ashad been stated above, in addition to the evidence of those sixwitnesses who alleged that the petitioner committed variousindecent sex acts on them, evidence of another witness viz.Major Rupasinghe had also been recorded in the absence ofthe petitioner on an unknown date). In fact, the petitioner hadnot even an intimation that any such inquiry was about to beginas against him. Regulation 15(1) presupposes or takes it forgranted, that the inquiry cannot commence without thepetitioner being notified of the inquiry because the petitionercould have been "afforded an opportunity of being present
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throughout the inquiry" only if the petitioner had been noticedor summoned beforehand, to be present at the inquiry.Regulation 15(1) suggests, if not ordains, by necessaryimplication that the officer or soldier concerned should havebeen summoned to appear on the date that the inquirycommenced because, that is, perhaps, the only way conceivableof giving an occasion for the petitioner to be present"throughout" the inquiry.
It is too well known to require any mention or emphasisthat summons or notice is invariably used to commence anaction, any action, for that matter, and it (summons) is definedin the Blacks Law Dictionary as a means of the Court acquiringjurisdiction. Service of notice or summons on the petitioner(notifying him that an inquiry will be held to inquire into chargesagainst him, at an appointed time and a named place) is an outand out jurisdictional fact or a condition – precedent i.e. a factwhich gives jurisdiction, which must, of necessity, be fulfilled ormust exist before the Court of Inquiry could have properlyassumed the power or the jurisdiction to inquire into theallegations against the petitioner. It must not be lost sight ofthat the inquiry before the Court of Inquiry commenced withsix witnesses giving evidence on 09.06.95 and 11.06.1995.(One witness had given evidence on 09.06.1995 and anotherfive witnesses on 11.06.1995 who all alleged, it is to rememberedthat the petitioner committed indecent sexual acts on them andthey had not been backward in giving the lurid and vivid detailsof those acts) But the petitioner did not have the faintestintimation that an inquiry would begin on that date. In fact, thepetitioner was outside the shores of Sri Lanka when the inquirystarted. But at the argument before me the learned Counselwere oblivious of the fact that the Court of Inquiry did not havethe jurisdiction to initiate the inquiry without first serving noticeor summons on the petitioner. I am at a loss to understand whythe Counsel, the learned Counsel for the petitioner in particular,was not conscious or was impervious to the fact that service ofnotice or summons was a jurisdictional fact. No argument wasput forward on that basis either in the oral or writtensubmissions which are filed of record. Perhaps, as I said inanother case, it is not the habit of great men to descend from
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their lofty mental pinnacle to the humble level of ordinary mindswith the consequence that the rudiments of the law are lostsight of. The arguments of the learned Counsel for the petitionerwere made as if the absence of the petitioner, when seven ofthe witnesses gave evidence was merely an error of procedure.Not a word had been said about the lack of jurisdiction or thepower and authority of the Court of Inquiry. The complaint inthe submissions was only of the lack of "procedural fairness"when there was a lack of jurisdiction which was of a far morefundamental and overwhelmingly decisive character.
The fact that the jurisdictional fact, that is, the service ofnotice or summons did not exist before the inquiry commenced,in the circumstances of this case, is important in two directions:(I) in view of the obvious failure to comply with regulation 15(1)the Court of Inquiry lacked the power and authority or thejurisdiction to enter upon the inquiry in question because, asexplained above, the condition absolutely essential to thepetitioner to be present on an appointed date at a named place.As such, the ultimate decision made by the Court of Inquiry,finding the petitioner guilty, is a nullity – aulthough the petitionerhad appeared, at later stage of the inquiry, and even cross-examined the witnesses. I cannot fathom, how a point of suchoverwhelming significance, which was ineffable, too great fordescription in words, was lost sight of. I have explained citingauthority, the distinction between jurisdictional and non-jurisdictional error in my judgment in Gunaratna v.Chandrananda de Silva!71 To quote: "When a jurisdictional erroris deemed to have occurred, it means that the decision hasalways been legally void. It is as if that decision had never beenreached in the first place and never existed. A grant of certiorariin these circumstances seeks to put the clock back to how thingswere before the void decision was made. In contrast, for errorsmade within jurisdiction, an error on the face of the record doesnot result in fundamental illegality, and thus a challenge willonly overturn the decision and take effect from the moment thatcertiorari was issued." I
I have also emphasized, in the judgment above-mentioned,that it is an inflexible and deep rooted principle of law that no
CAAmerasinghe v. Daluwatta and other27 5
(U de Z Gunawardana, J.)
act or decision which is void at its inception can ever be ratified.So that there in no scope for the argument that the subsequentappearance of petitioner or the fact that he did cross-examinewitnesses, amounted to a confirmation of the act of the wrongfulassumption of jurisdiction by the Court of Inquiry, (at thebeginning) which was patently void.
The assumption of jurisdiction by the Court of Inquiry wasvoid at the beginning because, as explained above, the condition,which was absolutely essential to the exercise of its power andauthority, had not been satisfied or fulfilled. The Latin maxim:Quod initio vitiosum est non potest tractu temporis convalescere,
I think, sums up to the position, fairly accurately although notquite exactly. It means that which is void from the beginningcannot become valid by lapse of time;
(ii)the fact that notice or summons to the officer (petitioner)whose conduct was going to be inquired into on a day namedbeing, as explained earlier, the sole means whereby the Court ofInquiry could have acquired1 jurisdiction, the requirement inregulation 15(1), that is, that the officer or soldier (whosecharacter or reputation will be affected by the inquiry) "shall beafforded on opportunity to be present THROUGHOUT theinquiry" is, beyond any controversy, mandatory and peremptoryand, must of necessity, be interpreted to be so. The term "shall"used in regulation 15(1) as, stated above, must be given acompulsory meaning, in the context, excluding all discretion andhas significance of operating to impose a peremptory duty onthe Court of Inquiry to afford an opportunity to the officer orsoldier concerned, to be present "throughout" which duty, (torepeat what has been stated above as well) could have beenperformed only by notifying the petitioner, in advance orbeforehand, of the date, time and place, at which the Court ofInquiry was going to sit.
The petitioner had also prayed in his petition that orderpublished in the Gazette dated 4/4/1996 whereby commissionof the petitioner was withdrawn be quashed. I do not thinkthat it is possible to do so, since the order published in the
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gazette withdrawing the commission is one made by HerExcellency the President. The President's actions or orderscannot be challenged in Court as there is, as explained by mein Jayatllaka u. Attorney General181, an inseperable legal barto the President being made a party to proceedings in Court. Tocite the relevant excerpt from my own judgment in the caseabove-mentioned: "In cases or situations where the law hasconferred on the President immunity from legal proceedings,the President has no right to ask that he be heard in defence ofhis actions or omissions while he still holds office, for that wouldbe a surrender of immunity by the President. And the presidenthas no right to surrender immunity conferred upon him by lawbecause immunity is conferred on him in the public interestand not in his own personal interest. It would have beenproductive of an intolerable situation, from the stand-point ofthe President, if legal proceedings can be instituted against thePresident although the president is not permitted to defendhimself for if the President submits to jurisdiction of the Courtin order to be able to defend himself, that would be tantamountto a waiver of immunity which the president is prohibited fromdoing in the public interest. The immunity conferred on thePresident is not the right of the President alone for it is the rightof the public also."
(The above is an excerpt from my own Judgment inJayatilake v. Attorney GeneralfSupra) in which their Lordships’Yapa, J. and de Silva, J. concurred.)
For the foregoing reasons, I do. hereby grant an order ofcertiorari quashing the decision and the entirety of proceedingsof the Court of Inquiry marked X 21.
Application allowed.