DE MEL .Petitioner, and M. W. H. DE SILVA ,Respondent

024-NLR-NLR-V-51-DE-MEL-.Petitioner-and-M.-W.-H.-DE-SILVA-Respondent.pdf


De Met v. M. W. H. de SHva
105
1949 Present :CJ.t Vtodlum J. tni OnOMD J.
DE MEL, Petitioner, and M. W. H. DE SILVA, Respondent
8. C. 504—Ik the Matter or an Application for a Mandate in teiNature or a Writ or Prohibition under Section 42 or theCourts Ordinance
Writ of Prohibition—Appointment of Bribery Commissioner-Authority todetermine legal rights of citizens—Duty to act judicially—Writ lieswhen Commissioner acts in excess of jurisdiction—Commissions ofInquiry Act, No. 17 of 1948, section 2—-Colombo Municipal CouncilBribery Commission (Special Provirions) Act, No. 32of 1949, section S.
A Writ of Prohibition may, in appropriate circumstances, issue againsta person having authority to determine a question affecting the legalrights of a citizen and having the duty to act judicially.
1'HIS was a question reserved by Gratiaen J. for the decision of aDivisional Benoh in the following terms
" One of the preliminary questions arising for consideration in thismatter is of such importance as to require, in my opinion, an authoritativedecision of the Supreme Court before I proceed to deal with the applicationon its merits.
“ The petitioner is a member of the Municipal Council of Colomboand was elected to the office of Mayor for the years 1945,1947,1948 and1049. On 24th May, 1949, the Governor-General of Ceylon, acting underthe authority of the powers vested in him by the Commissions of InquiryAct, No. 17 of1948, appointed the respondent, Mr. M. W. H. de Silva, K.C.,to be a Commissioner for the purpose of inquiring into and reporting toHis Excellency on certain specified questions connected with the allegedprevalence of bribery and corruption among the members of the ColomboMunicipal Council. Hie respondent was authorised and empowered bythe terms of his appointment4 to hold all such inquiries and make all.such inveetigatians as might appear to him to be necessary for thepurpose *. He was also required to transmit his report to the Governor*General4 as early as possible *.
44 As far as I can judge, the Governor-General's power to appointthe respondent a Commissioner for the purposes which I have indicatedis derived from the Act of 1948; on the other hand, the respondent'sduty to investigate and to report on the matters submitted to him isnot imposed on him by any Act of Parliament. It directly emanatesfrom and is regulated by the terms of his particular appointment asCommissioner, although the Act does clothe him with certain powers toassist him in the performance of his duty. Learned Counsel for thepetitioner concedes, I think, that if matters had stood in this way thefunctions with which the respondent was charged could not properlyhave been described as judicial or quasi-jndicial functions over whichthis Court oould exercise any controlling jurisdiction. Whatever otherremedy may or may not have been available to a person who olaims to bedissatisfied with the procedure adopted by the respondent in executinghis commission, an application for a writ in the nature of prohibition
J. V. A 98667 (11/49)
106
Du Mel v. M. W. H.<U Silva
or certiorari would not have been appropriate for the purpose ofchallenging that prooedure.
“ Learned Counsel submits, however, that although this Is the legalposition in oases where a person normally acts as a Commissioner appoint*ed by the Governor-General, supervening legislation which has comeinto operation since the date of the respondent's appointment has alteredthe scope of his status and functions. Before the respondent entered uponhis investigation of the matters on which he was required to submithis report to the Governor-General, Parliament passed the ColomboMunicipal Council Bribery Commission (Special Provisions) Act, No. 32of 1949. Seotion 6 of the Act provides a# follows:—
5. (1) Where the Commissioner finds at the inquiry and reportsto the Governor-Genera!—
(а)that any Councillor did, at any time after Deoember 2, 1043,
oorruptly solicit or receive or agree to receive, for himselfor for any other person, any gift, loan, fee, reward or advantageas an inducement to or reward for such Councillor doing orforbearing to do any official act in his capacity as a memberof the Council; or
(б)that any Councillor did, at any time after December 2, 1943,
oorruptly give, promise or offer to any other OoandUor,whether for the benefit of that other Councillor, or of anotherperson, any gift, loan, fee, reward or advantage as an indnee-ment to or reward for such other Councillor doing or forbearingto do any official act in his capacity as * member of theCouncil,
the Governor-General shall cause the finding to be published as soonas may be in the Gazette, and rile Councillor ngiimrt whom (be findingwas made—
shall, for a period of five yearn reckoned from the date of the
publication of the finding in the Gazette, be disqualifiedfrom being registered as a voter or from voting at anyelection of members of any public body or from being elected,or from sitting or voting, as a member of aoy public body;and
(ii) shall, if hois a member of the Council at the date of tho publi-cation of the finding in the Gazette, vacate his seat as suchmember with effect from that date.
Where any member of the Council, by reason of the operation ofthe preceding provisions of this section, vacates his seat as such memberthe provisions of the Municipal Councils Ordinance, No. 29 of 1947,read with the Local Authorities Elections Ordinance, No. 53 of 1945,shall apply for tho purpose of filling the vacancy so occurring in likemanner as those provisions would have applied if such member hadresigned his seat.
Every finding of the Commissioner referred.tain, and published. as required by, the preceding provisions of this section shall have
effect as therein provided, notwithstanding anything in any Otherlaw, and shall not be called in question in any Court.
De Mel 1?. M. W. H, de Silva
107
Here again one finds that the Act of 1049 does not directly vest therespondent with additional statutory powers; the Legislature has how-ever thought fit, in its wisdom, to declare that any Municipal Councillorfound by the respondent to have committed a corrupt act as specifiedin section 5 shall automatically be deprived of certain civic rights assoon as the relevant findings in the respondent’s report have been causedby the Govornor-General to be published in the Government Gazette.Indeed, the Act seems to give the Governor-General no discretion todecide whether or not such findings shall be made public.
“ It is argued for the petitioner that by reason of this subsequentlegislation the respondent’s functions, in so far as they are directed towardsthe investigation of the question whether any particular MunicipalCouncillor has acted corruptly in a manner contemplated by section 5of the Act of 1949, have in truth become judicial or quasi-judicial functionsin view of the statutory consequences which would inevitably arise fromthe publication of a finding adverse to the Councillor concerned. LearnedCounsel contends that in this state of things the respondent has ‘ legalauthority ’—directly or indirectly—* to determine questions affecting therights of subjects ’ (per Atkin L.J. in JR. v. Electricity Commissioners1),and that a writ of certiorari or a writ of prohibition may therefore issuefrom this Court should it be established that the respondent has eitheroxceeded his so-called * jurisdiction ’ or, in exercising that * jurisdiction ’,violated in somo way the fundamental principles of natural justice.
“ In the present case the respondent has given the petitioner formalnotice of his intention to hold an inquiry in public on 6th December, 1949,into twenty-seven separate allegations to the effect that the petitioner,being a Member of the Colombo Municipal Council, had on variousdates corruptly given gifts of money, amounting in the aggregate to overRs. 60,000, to other Councillors for the purpose of inducing them toexercise their respective votes in his favour at Mayoral Elections. Thepetitioner oomplains that for oortain reasons deposed to in his affidavit * itwould be contrary to all principles of natural justice for the respondentto sit in judgment over him and the respondent has divested himselfof jurisdiction to inquire into the allegations against the petitionerin other words, as learned Counsel summarised his client’s contention,the inquiry proposed to be held on 6th December would be ‘ a mocktrial with the verdict predeterminedIn these circumstances thepetitioner asks this Court to issue a mandate in the nature of a writ ofprohibition prohibiting the respondent from inquiring into the allegationsagainst the petitioner.
“ The general principle involved with regard to the jurisdiction ofthis Court in a matter oi this nature is one of public importance and Iconsider it desirable that the question should be decided by a fullerBench. I accordingly make order under section 48 of the CourtsOrdinance referring the following question for the decision of a Benchof three judges :—
Whether, having regard to the provisions of the Commissions of
Inquiry Act, No. 17 of 1048, the Colombo Municipal Council Bribery
Commission (Special Provisions) Act, No. 32 of 1949, or any other'(1994) IK. B. 171.
108
De Mel v. M. W. H. de Silva
relevant legislation, it is competent for the Supreme Court to issue amandate in the nature of a writ of prohibition to prohibit a Com-missioner appointed by the Governor-General from inquiring into anallegation that a Municipal Councillor has acted corruptly in a mannerspecified by section 5 (1) of the Act of 1949.
“ For the purpose of deciding on the number of Judges to whom thisquestion should be referred, I have thought it my duty to consult my Lordthe Chief Justice, and this part of my order has been made with hisconcurrence.
“ If the answer to this general question which I have formulated beanswered in the negative, the petitioner’s application will stand refused.If the answer be in the affirmative, I shall proceed to consider the appli-cation on its merits for tho purpose of deciding whether or not a rulenisi should issue from this Court as prayed for by the petitioner.
“ Let a copy of this order bo forwarded to the Attorney-General witha request that he be good enough to arrange for an officer of bis Depart-ment to assist the Court as amicus curiae when the question referredby me to a Bench of three judges comes up for consideration. ”
H. V. Pcrera, K.C., with 8. Nadesan, D. 8. Jayawickrama, C. 8. Barr-Kumarakulasinghe and K. C. Nadarajah, for petitioner.—The respondentwas appointed a Commissioner under the provisions of the Commissionsof Inquiry Act, No. 17 of 1948, which repealed the Commissions of InquiryOrdinance (Cap. 276). The power given to the Governor-Generalincludes power to choose persons who are to form the Commission, and issubject to limitation as to the selection of the matter regarding which aninquiry is desired. The function to be performed by the Commissionis also laid down in the Act, viz., to inquire into and report on such matter.That is to say, the Commission has legal authority to inquire and report.Section 7 sets out the powers of the Commission. These powers, it issubmitted, are the powers which judicial bodies normally have. TheAct does not, it is true, provide that the report of the Commissioner is tohave any legal consequences. To that extent, the Commission is a fact-finding one. But a fact-finding Commission would be a judicial bodyif some other person is empowered to act on its findings. The MunicipalCouncil Bribery Commission (Special Provisions) Act, No. 32 of 1949, cameinto operation on August 5, 1949, after the issue of the Commission torespondent. Effect was given by this Act to the Commissioner’s findingwhich is not subject to judicial review—section f». There is no way ofavoiding the consequences of a finding. The respondent therefore is aperson having legal authority to determine questions affecting the rights ofpersons and having the duty to act judicially [The King v. Electricity Com-missioners (supra)). Certiorari would therefore lie to quash proceedingsheld by him. For principles regarding certiorari see Dankotuwa EstatesCo., Ltd., v. Tea Controller*. Where certiorari lies to quash proceedings,prohibition is available to prevent from holding proceedings. Where adecision is sufficiently near a judicial decision, it may be the subject ofa writ of certiorari. King v. Hendon Rural District Council8. Courtsshould not be chary of exercising the power of prohibition. Reg. v.Local Government Board3. See also Estate and Trust Agencies (1927),» (1941) 42 N. L. R. 197, 205.» (193$) 2 K. B. 696.
* (1882) 10 Q. B. D. 309 at 321.
WIJEYEWARDENE C.J.—De, Mel v. M. W. H. de Silva
109
Ltd. v. Singapore Improvement Trust1. The Commissioner is a statutorytribunal. Barrat v. Kearns2.
E. P, Rose, K.C., Attorney-General, with T. S. Fernando, CrownCounsel, and M. Tiruckelvam, Crown Counsel, as amicus curiae.—A writof prohibition does not lie in this case. The writ is a very specialremedy, and issued, at first, to Courts if they exceeded their juris-diction. Later it was extended to tribunals, when the forms of justicewere not observed. Courts arc anxious to limit the class of cases in whichthey will intervene by prohibition. They will so intervene only if thetribunal has a jurisdiction given by Act of Parliament. Jurisdictionmust be distinguished from authority. Jurisdiction connotes dutiesjudicial, authority connotes administrative duties. Bribery Commissionhas no jurisdiction, because it was not created by Act of Parliament.The Commission is purely fact-finding. See re The Grosvenor and WestEnd Railway Terminus Hotel Co., Ltd.9 and Shell Company of Australia,Ltd. v. Federal Commissioner of Taxation.*
Cur, adv. vult.
December 8, 1949. Wijeyewardknb C.J.—
On Hay 24, 1949, His Excellency the Governor-General acting inpursuance of the provisions of section 2 of the Commissions of Inquiry.Act, No. 17 of 1948, appointed a Commissioner to inquire into and reporton the questions—
(а)whether any member of the Colombo Municipal Council did at
any time after December 2, 1943, corruptly solicit or receiveor agree to receive, for himself or for another person, any gift,loan, fee, reward or advantage as an inducement to or rewardfor such Councillor doing or forbearing to do any official actin his capacity as a member of the Council,
(б)whether any member of the Colombo Municipal Council did at any
time after December 2, 1943, corruptly give, promise or offerto any other Councillor, whether for the benefit of such otherCouncillor or of another person, any gift, loan, fee, reward oradvantage as an inducement to or reward for such other Coun-cillor doing or forbearing to do any official act in his capacityas a member of the Council.
Shortly after the appointment of the Commissioner but before thecommencement of the inquiry the Colombo Municipal Council BriberyCommission (Special Provisions) Act, No. 32 of 1949, came into operationon August 5, 1949.
The petitioner is a member of the Colombo Municipal Council and waselected Mayor for 1945, 1947, 1948, and 1949. The respondent gave thepetitioner formal notice on November 8, 1949, stating that hewould hold an inquiry in public on December 6, 1949, into certain alle-gations that the petitioner had on various dates after December 2,1943,corruptly given gifts of money to other members of the Colombo Munici-pal Council for the purpose of inducing them to exercise their respectivevotes in his favour at the Mayoral elections. That notice set out in
(1927) 3 A. S. It. 324.* L. T. B. Vol. 76, 337.
(1905) 1 K. B. 504.* (1931) A. 0. 275.
110
WIJEYEWARDENE C.J.—Dt. Mel v. M. IV. H. de Silva
detail the various charges against the petitioner, gave the names of thewitnesses summoned to prove the charges and specified the documentsrelied upon to support those charges.
The petitioner moved this Court on November 19, 1949, for the issueof a mandate in the nature of a writ of prohibition prohibiting theres(>ondcnt from inquiring into the allegations referrod to in that notice.When the matter came up for hearing before my brother Gratiaen thefollowing question was reserved by him for the decision of a DivisionalBench:—
“ Whether, having regard to the provisions of the Commissions ofInquiry Act, No. 17 of 1948, the Colombo Municipal Bribery Com-mission (Special Provisions) Act, No. 32 of 1949, or any other relevantlegislation, it is competent for the Supreme Court to issue a mandatein the nature of a Writ of Prohibition to prohibit a Commissionerappointed by the Govemor-General from inquiring into an allegationthat a Municipal Councillor has acted corruptly in a manner specifiedby section 5 (1) of the Act of 1949 ”.
For the purpose of deciding this question it is desirable to set out insome detail the provisions of the two Acts mentioned above.
By the Commissions of Inquiry Act, No. 17 of 1948, the Governor-General is empowered, whenever it appears necessary to him, to issuea warrant appointing a Commission of Inquiry consisting of one or moremembers to inquire into and report upon “ any matter in respect of whichan inquiry will, in his opinion, be in the interests of the public safetyor welfare ” [section 2 (1) (c)]. A Commissioner so appointed is deemedto be a public servant and every inquiry before him is deemed to be ajudicial proceeding within the meaning of the Penal Code (section 8).The Commissioner has inter alia the power—
(а)to summon any person to give evidence or to produce documents ;
(б)to examine witnesses on oath or affirmation ;
to decide whether the public should be excluded from the wholo
or any part of the inquiry ; and
to make certain recommendations as to the costs of any person
implicated or concerned in the matter under inquiry (section 7).
Any person failing without good reason to give evidence or produce adocument as required by the summons is deemed to have committed anoffence of contempt against or in disrespect of the authority of theCommissioner (section 11). Every such offence is punishable by a Judgeof the Supreme Court “ as though it were an offence of contempt com-mitted against or in disrespect of the authority of that Court ” (section 9).Every person whose conduct is the subject of inquiry or who is concernedin the matter under inquiry has a right to be represented by a lawyer(section 14). The presumptions arising under section 80 of the EvidenceOrdinance are made applicable to tho record of the evidence or any partof the evidence given before tho Commissioner (seotion 13).
The Colombo. Municipal Council Bribery Commission (Special Provi-sious) Act, No. 32 of 1949, gives the legal consequences of a report made
WIJEYEWARDENE G.J.—De Mel v. M. W. fl. de Silva
111
by the respondent as such Commissioner at the close of his inquiry.Section 5 of that Act enacts as follows :—
Section .5 (7)—Where the Commissioner finds at the inquiry andreports to the Governor-General—
(а)that any Councillor did at any time after December 2, 1943,
corruptly solicit or receive or agree to receive, for Himselfor for any other person, any gift, loan, fee, reward or advantageas an inducement to or reward for such Councillor doing orforbearing to do any official act in his capacity as a memberof the Council; or
(б)that any Councillor did at any time after December 2, 1943,
corruptly give, promise or offer to any other Councillor,whether for the benefit of that other Councillor, or of anotherperson, any gift, loan, fee, reward or advantage as an induce-ment to or reward for such other Councillor doing or for-bearing to do any official act in his capacity as a memberof the Council,
the Governor-General shall cause the finding to be published as soon asmay be in the Gazette, and the Councillor against whom the finding wasmade—
shall, for a period of five years reckoned from the date of the
publication of the findings in the Gazette, be disqualified frombeing registered as a voter or from voting at any electionof members of any public body or from being elected, or fromsitting or voting, as a member of any public body; and
shall, if be is a member of the Council at the date of the publi-
cation of the findings in the Gazette, vacate his seat as suchmember with effect from that date.
Section 5 (2)
Section 5 (3)—Every finding of the Commissioner referred to in, andpublished as required by, the preceding provisions of this section shallhave effect as therein provided, notwithstanding anything in any otherlaw, and shall not be called in question in any Court.
It will thus be seen that a Commission of Inquiry aa the present Com-mission is one created by the Commissions of Inquiry Act, No. 17 of 1948,and the members of that Commission are appointed by the Governor-General by virtue of the powers vested in lum under that Act. If thatAct were not on the Statute Book the present Commission of Inquirycould not have come into existence. The respondent, as Commissioner,has to inquire into various allegations of bribery and for that purposehe has to examine witnesses on oath or affirmation and reach a decisionon such evidence with regard to the allegations made against the petitioner.The petitioner is entitled to be represented by a lawyer at the inquiry.At the close of the inquiry the respondent has to report bis finding tothe Governor-General. It is true that the respondent is not expectedto make any order in his report affecting the legal rights of the petitioner.It is, in fact, rendered unnecessary in view of section 5 (1) of the ColomboMunicipal Council Bribery Commission (Special Provisions) Act, No. 32of 1949, which states in clear terms that the Governor-General “ shall ”
112 WIJEYEWARDENE C.J.—Vadivtiu v. Inspector of Police, Badulla
cause the finding to be published “ as soon as may be ” in the Gazette,if the finding is adverse to the petitioner, and that on such publicationthe petitioner should be subject to the disqualifications set out in thatsection. An adverse finding of the Commissioner, therefore, resultsnecessarily in affecting the legal rights of the petitioner. For the abovereasons, I am of opinion that the respondent is a person having legalauthority to determine a question affecting the rights of the petitionerand having the duty to act judicially. Following the decision in TheKing v. The Electricity• Commissioners1 I would answer in theaffirmative the question reserved for our decision.
Windham J.—I agree and have nothing to add.
G&attabn J.—I agree.