002-SLLR-SLLR-1981-1-BANDARANAIKE-v.-WEERARATNE-AND-OTHERS.pdf
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Sri Lanka Law Reports
(1381) IS. L R.
BANOARANAIKE
v.
WEERARATNE AND OTHERS
{S.C. Special 4/80)
BANOARANAIKE
v.
WEERARATNE AND OTHERS
(S.C. Special 5/80)
SUPREME COURT.
SAMERAWICKRAME, J.. ISMAIL, J. AND WANASUNDERA, J.S.C. SPECIAL 4/80-C.A. No. 2114/80.
S.C. SPECIAL 5/80-C. A. No. 2115/80.
NOVEMBER 10,11,12,13,1980.
Writ of certiorari—Application under article 140 of the Constitution—SpecialPresidential Commission established under Law No. 7 of 1978as amended by Act No. 4of 1978—Recommendations under section 9 of the said Law— Imposition of civicdisabilities—Preclusive nature of Article 81(3) of the Constitution—Conclusive natureof Speaker's Certificate.
The respondents to these two applications, members of the Special PresidentialCommission established under Law No. 7 of 1978, as amended by Act. No. 4 of 1978,made findings against the petitioners which they held constituted the misuse or abusenf nower by them end made recommendations under section 0 of the said Law that eachof the petitioners be made subject to civic disability. Paragraphs (1), (2) and (3) ofArticle 81 of the Constitution provide for the mode and conditions of taking suchaction. The imposition of civic disabilities end/or the expulsion of any person fromParliament, if he is a Member of Parliament, is to be effected by resolution introducedby the Prime Minister with the approval of the Cabinet and passed by Parliament with a2/3 majority after the Special Presidential Commission of Inquiry makes arecommendation to that effect. By the time the matter was argued the resolutions ofParliament had been passed and it was contended on behalf of the petitioners that if thefindings and recommendations of the Special Presidential Commission were void on thegrounds set out by the petitioners the resolutions passed by Parliament were also invalid.Objection was taken in limine on behalf of the respondents that the Court was precludedfrom going into or entertaining these applications for writs of certiorari inter alia byreason of the provisions of Article 81 (3) of the Constitution.
Held
The words "… .no Court or tribunal shall inquire into, or pronounce upon or in anymanner call in question, the validity of such resolution on any ground whatsoever",in the latter part of Article 81 (3) of the Constitution precluded the Court fromentertaining and going into the application for writ and accordingly the preliminaryobjection of the respondents must be upheld and the applications for writ dismissed.
■’LlCATIONS for Writs of Certiorari
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Bandaranaike v. Weeraratne (Samerawickrame, J.)
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H. L. de Silva, with E. O. Wikremanayake, K. Shanmugalingam, S. Oassanayake, GominDayasri and V. W. Kuiaratne. for the petitioner in S. C. Special 4/80.
Shiva Pasupati. Attorney-General, with K. M. M. 8. Kulatunga, Additional Solicitor-General and A. S. Ratnapaia, State Counsel, for the respondents.
H. L. de Silva, with E. D. Wikremanayake. K. C. F. Wijewickrema and P. Samararatne.for the petitioner in S. C. Special 5/80.
K..N. Choksy, with 0. C. Jayasuriya, Senior State Counsel, for the respondents.
Cur. adv. vuit.
January 15,1981.
SAMERAWICKRAME, J.
The respondents to each of the two applications hold office a9members of the Special Presidential Commission established underLaw No. 7 of 1978 as amended by Act No. 4 of 1978. Therespondents held inquiries into the conduct of each of the twopetitioners in the above applications in terms of the Warrantissued under section 2 of the said Law No. 7 of 1978. Therespondents have made findings against the petitioners onallegations which they held constitute the misuse or abuse ofpower by them and have made in each case their recommendationunder section 9 of the said Law No. 7 of 1978 that the petitionerbe made subject to civic disability.
lection 0(1} of Law No. 7 of 1870 roads ^
"Where a commission finds at the inquiry and reports to thePresident that any person has been guilty of any act of politicalvictimization, misuse or abuse of power, corruption or anyfraudulent act, in relation to any court or tribunal or any publicbody, or in relation to the administration of any law or theadministration of justice, the commission shall recommendwhether such person should be made subject to civic disability,and the President shall cause such finding to be published in theGazette as soon as possible, and direct that such report bepublished."
Though Law No. 7 of 1978 was enacted before the promulgationof the Constitution of the Democratic Socialist Republic of SriLanka, provision was made in the constitution providing for actionto be taken against any person in respect of whom the SpecialPresidential Commission set up by the said Law, recommendedshould be made subject to civic disability by reason of any act
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(1981J IS L A
done or omitted to be done by such person before or after thecommencement of the Constitution. Sub-section (1) (2) and (3)of Article 81 of the Constitution provide for the mode of takingsuch action and read as follows:
"(1) Where a Special Presidential Commission of inquiryestablished under the Special Presidential Commissions ofInquiry Law No. 7 of 1978, and consisting of a member ormembers each of whom is a Judge of the Supreme Court,Court of Appeal, High Court or the District Courtrecommends that any person should be made subject to civicdisability by reason of any act done or omitted to be done bysuch person before or after the commencement of thieConstitution, Parliament may by resolution passed by not lessthan two-thirds of the whole number of Members (includingthose not present) voting in its favour:
impose civic disability on such person for a period notexceeding seven years, and
expel such person from Parliament, if he is a Member ofParliament.
Where a Special Presidential Commission of Inquiry consistsof more than one member, a recommendation made by themajority of such members, in case of any difference of opinion,shall be, and shall be deemed for all purposes to be, therccommeittlatipn of such Commission of Inquiry.
No such resolution shall be entertained by the speaker orplaced on the Order Paper of Parliament unless introduced bythe Prime Minister with the approval of the Cabinet ofMinisters.
The Speaker shall endorse on every resolution passed inaccordance with foe preceding provisions of this Article acertificate in the following form:
"This resolution has been duly passed by Parliament in
accordance with the provisions of Article 81 of the
Constitution."
Every such certificate shall be conclusive for all purposes andshall not be questioned in any court, and no court or tribunal
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Bandaranaike v. Weeraratne (Samerawickrame, 1)
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shall inquire into, or pronounce upon or in any manner call in
question, the validity of such resolution on any ground
whatsoever."
It is to be noted that the imposition of civic disabilities and/orthe expulsion of such person from Parliament, if he is a Member ofParliament, is to be effected by resolution passed by Parliament.The conditions for passing such resolution are:
The Special Presidential Commission of Inquiry recommendsthat the person should be made subject to civic disabilityby reason of acts done or omitted to be done before orafter the commencement of the Constitution.
The resolution is passed by not less than 2/3 of the wholenumber of Members of Parliament (including those notpresent) voting in its favour.
Such resolution has been introduced by the Prime Ministerwith the approval of the Cabinet of Ministers.
These conditions are found in sub paragraphs 1 and 2 of Article81 and sub-par agraph 3 requires the Speaker to endorse on everyresolution passed in accordance with the preceding provisions ofthe Article, a certificate that it has been duly passed by Parliamentin accordance with the provisions of Article 81 of the Constitution.
Mr. H. L. de Silva submitted on behalf of the petitioners,emphasising the word "passed", that the certificate merelytestifies to the fact that it has been passed by not less than 2/3 ofthe whole number of members and perhaps also that it has beenintroduced by the Prime Minister with the approval of the Cabinetof Ministers. We are unable to accept this submission and are ofthe view that the Speaker's certificate is broader in scope andrelates to all the conditions of the passing of the resolution interms of article 81 referred to above by us. For example, we notethat the certificate of the Speaker marked R18 in applicationNo. 4 of 1980 does refer to the findings and recommendation ofthe Special Presidential Commission. It also states that theresolution which was in fact moved by the Prime Minister hadreceived the approval of the Board of Ministers and had been dulypassed in Parliament in accordance with the provisions of Article81. The latter part of sub-paragraph (3) of Article 81 states thatsuch certificate of the Speaker shall be conclusive for all purposes
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Sri Lanka Law Reports
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and shall not be questioned in any court and that no Court ortribunal shall inquire into, or pronounce upon or in any mannercall in question, the validity of such resolution on any groundwhatsoever.
Learned Counsel appearing for the respondents submittedin reliance on the last part of Article 81 (3) that this Court wasprecluded from entertaining the application for Writ and goinginto it. They also raised objection in limine in respect of theapplications on certain other grounds. We heard argumentsin respect of these objections in respect of both applicationstogether and this order is made in respect of that matter.
In their original applications, which were filed before theresolutions were passed, the petitioners stated that notice of amotion has been given in Parliament for a resolution to be movedby the Prime Minister with the approval of the Cabinet ofMinisters in terms of Article 81(2} of the Constitution to imposecivic disabilities and in the case of the petitioner in No. 4 of 1980,to expel her from Parliament They further stated that by reasonof the facts thereafter set out in the petition, such a resolution byParliament would constitute a grave violation of their legal andconstitutional rights and freedoms and would cause irreparableharm and injury. Their position was that the findings againstthem were null and void and the recommendations based on suchfindings were equally null and void on the grounds set out in thepetitions. The petitioners have thus indicated that the findings,recommendations and the resolutions were inextricably connectedwith each other. By the time the matter was argued, theresolutions had been passed and Mr. H. L. de Silva appearing forthe petitioners submitted that if the findings and recommendationsof the Special Presidential Commission were void on the groundsset out by him, the resolutions passed by Parliament were alsoinvalid. He submitted that if a finding is made by this Court thatthe findings and resolutions of the Special Presidential Commissionwere void, then Parliament, the members of which had taken anoath to uphold the Constitution, would have an imperative dutyto rescind the resolutions. He further submitted that even if thisParliament did not do so, a future Parliament might well do so.
It is necessary to examine the objection in limine based onArticle 81 (3) to this Court entertaining and going into the
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Bandaranaike v. Weeraratne (Samerawickrame. J.)
IS
application of the petitioners to have the findings and recom-mendations of the respondents quashed as being null and void.A valid finding and a valid recommendation by the SpecialPresidential Commission of Inquiry is no doubt a necessarycondition to the passing of a resolution by Parliament forimposing civic disabilities and/or expelling a person fromParliament. As set out earlier in this judgment, a certificate of theSpeaker that the resolution had been duly passed in accordancewith the provisions of Article 81 constitutes inter alia a statementthat there has been a finding and recommendation by the SpecialPresidential Commission. Once a resolution has been passed andthe certificate by the Speaker endorsed on it, there is a preclusiveclause in sub-paragraph (3) of Article 81 which comes into force.It is the contention of the respondents that thereafter it is notopen to any Court, tribunal or person to seek to impeach thesubsistence of any of the necessary conditions for passing theresolution. There are two aspects of the preclusive clause thatrequires consideration. The first part of such clause states:
"Every such certificate shall be conclusive for all purposes
and shall not be questioned in any Court."
Since the certificate contains in effect the statement that there hasbeen a finding and recommendation bv a Special PresidentialCommission, does this provision in the preclusi/e clause precludethe Court from entertaining an application to declare that thefinding and recommendation were void as such a declaration istantamount to holding that there had been no finding orrecommendation that would constitute the necessary conditionfor passing the resolution? Where by certification procedurescertain evidentiary material is stated to be conclusive, it meansthat it is to some extent to be regarded as absolute evidence of thefacts so stated. In this case, the certificate is to be "conclusive forall purposes." In the face of such a strong and absolute provision,it is a matter of doubt, to put it at its lowest, whether it is open tothis Court to permit matters to be gone into for the purpose ofshowing that the recommendations and findings were void and didnot in fact exist as a necessary condition for the passing of theresolution.
The second part of the preclusive clause is in a sense wider andmore sweeping. It states:
Sri Lanka Law Reports
(1981) 1S. L R.
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".. .and no Court or tribunal shall inquire into, or pronounceupon or in any manner call in question, the validity of suchresolution on any ground whatsoever.”
The issue of a writ quashing the findings and recommendation ofthe Special Presidential Commission would amount to a decisionthat one of the necessary conditions for passing a resolution didnot in fact exist. If the validity of the resolution was capable ofbeing called in question, one way of doing it is to show that anecessary condition for passing the resolution did not in fact exist.It is true that in this application what the petitioners seek toquash are the findings and recommendations of the SpecialPresidential Commission but the granting of a writ wouldnecessarily imply that the resolution was invalid. There is a generalrule in the construction of Statutes that what a Court or person isprohibited from doing directly, it may not do indirectly or in acircuituous manner. But quite apart from such general rule ofconstruction, there is in this preclusive clause itself express wordsto indicate this. It states, inter-aiia:
"No Court or tribunal shall.. .in any manner call in questionthe validity of such resolution on any ground whatsoever.”
it is the position of the petitioners themselves that they areseeking to show that the resolutions passed by Parliament are notvalid and that they expect that Parliament will in due courserescind the resolutions. Having regard to the necessary effect ofgranting a writ and the expressed purpose of the petitioners inseeking it, I cannot resist the conclusion that if this Court were toentertain the Application and go into it, it would be acting inviolation of the second part of the preclusive clause. In my view,the effect of the issue of a writ quashing the recommendations andfindings of the Special Presidential Commission would be in somemanner to call in question the validity of the resolutions.
We were referred to decisions of the English Court whichshowed that schemes prepared under Statute for approval by oneor both houses of Parliament or statutory orders that had beenapproved by one or more houses of Parliament had been struckdown by the issue of a writ. These cases deal essentially with thesubordinate functions of Parliament and in no such case was therea preclusive clause in such extensive terms and in the fundamentallaw itself as is found in clause 81 of the Constitution. These casesare, therefore, of no real assistance.
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Bandaranaike v. H/eerantne iSmemmcknmt; X)
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In view of the findings I have arrived at on this objection, it isunnecessary to consider the other objections in limine raised bythe respondents. They require careful consideration of the mattersfor and against raised by counsel on either side.
I am conscious of the fact that this decision means that withoutgoing into the factual aspects of the petitioners' complaints,because of a preliminary legal objection the petitioners are declareddisentitled to a remedy in a matter in which each of them rightlyor wrongly feels that he or she has a serious grievance to placebefore Court. We are faced, however, with a provision of thefundamental law, the Constitution. This Court has been given thesole jurisdiction to interpret the Constitution. This Court is alsovested with jurisdiction in respect of fundamental rights grantedby the Constitution and certain other matters arising under theConstitution. There is, therefore, a peculiar duty resting onthis Court to uphold and give effect to a provision of theConstitution and we have no alternative but to give proper effectto the preclusive clause in Article 81 (3). In fairness to therespondents, we must say that we have not gone into the facts andwe have formed no view whether or not the allegations made bythe petitioners are well founded.
In the result, we make order dismissing both applications andwe direct the petitioner in each application to pay to therespondents jointly Rs. 1,500 as costs.
ISMAIL, J.— I agree.WANASUNDERA, .l -l agree.
Applications dismissed.