CAWickremasinghe r. Ceylon l.lcenienv Ho,ir,t tl II <!<■ ,Mn-it. I I 617
DE ALWIS AND OTHERS
SAMARAKOON. C.J.. WIMALARATNE. J.. AND COI.IN-THOMC. J.
SEPTEMBER 1, 1982.
Charge of personal misconduct of Judge – State treking to intervene —-Interestsof justice – Third party seeking to he added – No charge against him – Constitution,Article 134(3) – Court's power to hear necessary party.
The petitioner alleged that the Special Presidential. Commission had''issued 'aNotice under Section 16 of the Special Presidential Commission Law informing
Sri Ijmka Law Reports
(1982) 2 S.L.R.
A.H.M. Fowzie that he was a person whose conduct should be the subject ofinquiry and requiring him-to'File a statement if he challenged the allegations inthe evidence led at the inquiry.
The petitioner further alleged that while Fowzie continued to be subject to thejurisdiction of the Commission of which the 1st respondent was a member heknowingly engaged in financial transactions with Fowzie and thereby was guiltyof misconduct and corruption and. compromised his position and not qualified toact'' as a Member of the Special Presidential Commission.
The. Attorney General in the interests of justice and Fowzie because insinuations,had been made against him sought to intervene under Article 134 of the Constitution.
That the allegations involved the personal conduct of the 1st respondent in
his private dealings in which the State was in no way involved and thereforeit was not necessary to hear the Attorney-General.
That conduct of the 1st respondent in entering into a common legal transactionwhen he was a member of the' Commission which- had assumed jurisdictionover Fowzie was the question and not the conduct or corruption Of Fowzie.
Cases referred to:
The 'United India' Fire'and'General Insurance Co. Ltd. v. Weinman (1958)59 NLR 495.
The Chartered 'Bank k De Silva (1964) 67 NLR 135.
•; i: ■. • 11 >•:
APPLICATION to intervene in writ proceedings.
G.F. Sethukavaler, S.A., with Lakshman de Alwis instructed by Mrs. P.K.Nanayakkara for applicant.
K.M.M.B. Kulatunge, acting S.G. with Suri Ratnapala. S.C. instructed by T.G.Gooneratne, State Attorney for Attorney-General. •
P. Navaratnarajah. Q.C.. with Dr. M.L.S. Jayasekera. Kanag-lswaran and K.Sivananthan instructed by Messrs Srinivasan, Amaratunge and Pararajasinghamfor 1st respondent.
Cur. adv. vult.
September 20, 1982
The petitioner has made an application for Writs of Quo Warrantoand Prohibition in terms of the proviso to Article 140 of the1Constitution of the Democratic Socialist Republic of Sri Lanka readwith Section 18A of the Special Presidential Commission (SpecialProvisions) Act No. 4 of 1978 seeking an order that 1st respondent
.VC*Htunfonwuikr »■ /V .l/u/% tinJ Othfr' iSamnfuk*H*n. ( J.)619
has become "unable .to act. and is disentitled to hold office of andto function as a Member of the Special Presidential Commission ofInquiry" and for a further, order restraining and preventing him fromcontinuing tfl exercise or to function in the. said office. The petitioner-alleges that the Special.-Presidential Commission acting iinder^-theprovisions' of Section 16 of the Special Presidential Corrirnis$ipn ,pfln^ytry’.Law No. ,7 pf 1978 had issued a notice qn Vy; H.inforniing him that he was a person whose c/yjlJlAC h.should; be.theosubject of inquiry and requiring Hiijj.tyjEile a statement if he challengedany allegations contained in the. evidence led at the preliminaryinquiry. The petitioner further jjjleges that while the said Fowziecontinued to be subjecti;jtp ,tjj£,.nqtice and thereby subject to the -jurisdiction of the Commission .the,:|st respondent knowingly engagedin financial dealings with the said Fowzie. The dealings comprise .a .<land transaction, the details of which are not relevant for thisapplication. By so doing, the petitioner states, the 1st respondent has -.
“(a) committed ijn.act of. grave, misconduct..
vitiated his integrity, and thereby shown himself to ,be_-corrupt, and guilty of corruption, and thereby
compromised his position as a Judge of the Court of
Appeal, by his misbehaviour, and■
(‘d) "'become ‘unable to act' as a Member of the SpecialPresidential Commission of Inquiry, under section 3(1)of the said Law No. 7 of 1978."
Two,applications have now been filed seeking permission to intervenein these proceedings. One is by the State Attorney who seems tohave been alerted by copies of notices.and .documents served.on jheAttorney-General from tinvf. to ti mc,v, Tthe.Attorney,jmov.es. that •the Attorney-Genera^be, j»Tanjted a hearing.because;Ait appears, feomothe material filed so,,Tar,that it would be in the.iqter§}i,t&..oftjustice–that the Attorney-General appears on . behalf of (he- State alalhe hearing of the above application." An unusual kind of application.;.,He is not seeking to be added,,as a party-for -the reason .that tb.e(interests of the State wo.uld be adversely affected by any order that,,will be finally made. It is simply on the basis that the interests' oftijustice would be served if the Attorney-General is heard on” behalf..;of the State. The gravamen of the allegations involves the personal,conduct of the 1st respondent in his private dealings iii which the •State is in no way involved. If in- the course” of the proceedings thisCourt considers it necessary to hear the Attorney-General he Villcertainly be noticed as amicus curiae. Such a stage has- rtot – beenreached. I therefore refuse the application of the State* Affbrney.
Sri Lanka Law Reports
(19S2) 2 S.L.R.
The other application is one made by the said A.H.M. Fowzie.He has filed an affidavit and moves that he be allowed to take partin these proceedings and be heard. He states that the “imputations. and. insinuations of impropriety and suspicion relating to the conductand dealings between the 1st respondent’’ and himself and allegationsof corruption, misconduct and scandal touch on him also. He furtherstates that an adverse finding against the 1st respondent would haveserious consequences on his integrity and expose him to the jeopardyof the law’s processes. He pleads that he is a businessman, a socialworker, a politician and that he once held office as Mayor ofColombo. Counsel appearing for him sought to justify this applicationunder the provisions of Article 134(3) of the Constitution of 1978which reads as follows:-
“134(3) The Supreme Court may in its discretion grant to any otherperson or his legal representative such hearing as may appear to theCourt to be necessary in the exercise of its jurisdiction under thisChapter.”
The Attorney-General has of right to be heard in the seven instancesset out in Article 134(1). A party, to a proceeding has a similar rightof being heard in person or by representative in such proceedings[Article 134 (2)]. Any other person will be heard if the SupremeCourt thinks that such person should be heard. The provisions ofArticle 134(3) give the Court an unlimited discretion. The petitionercited two decisions of the Supreme Court. The first is the case ofThe United India Fire and General Insurance Co. Ltd. Vs. Weinman (1).That was a case arising from a motor collision resulting in injuriesto the plaintiff. The plaintiff claimed damages against the owner ofthe motor vehicle and his driver. The Insurance Company sought tobe added stating that it was a necessary party because, as the insurerof the motor vehicle, the Company would eventually be liable tohonour any decree entered against the owner of the motor vehicle.The .Supreme Court rejected this argument on the ground that anyorder against the owner would not affect the Company’s legal rightsand in any event no liability would arise until and unless a decreeis entered against the insured as provided in Section 105(1) of theMotor Traffic Act. •
The next case cited by the petitioner is the case of The CharteredBank Vs. De Silva (2). This was a case in which the Bank soughtto be added as a party, under the provisions of Section 18 of theCivil Procedure Code. It was held that the Bank was only-a material
Randaranaitce i l)e Atwis atitl (>tticr tSamurukiton. C.J.)
witness and its presence was therefore not necessary in order tocompletely and effectually decide the questions involved in the action.
The words of Article 134(3) arc of wider import than Section 18of the Civil Procedure Code. The word necessary in this Article isnot restricted to a hearing for the purpose of exercising the jurisdictionconferred by Chapter XVI of the Constitution. It goes way beyondsuch limits. It gives the Court the discretion to hear any person ifit considers that the interests of justice require that he be heard.
In that view of the provisions of Article 134(3) the question 1 <iskmyself is whether it is necessary to hear the said Fowzie to de'cidethe allegations against the 1st respondent. The transaction of saleand purchase is a common legal transaction. It is not the transactionthat is impugned. It is the conduct of the 1st respondent in enteringinto‘such transaction at a time when he was a Member of theCommission which had assumed jurisdiction over the said Fowzie interms of section 16 of the Law No. 7 of 1978; that is now in question.This court need not, and indeed is not called on to, decide anyallegations of misconduct or corruption against Fowzie. Xhpugh nodoubt, if such a development takes place in the course of the hearingthis Court might then consider the necessity of hearing Fowzie. Itherefore refuse this application too. I make no order for paymentof costs against either the Attorney-General or Fowzie.
WIMALARATNE, J. — I agree.
COLIN-THOMfc, J. — I agree.