DIRECTOR GENERAL, COMMISSIONER TO INVESTIGATE ALLEGATIONS OF BRIBERY OR CO

017-SLLR-SLLR-2010-V-1-DIRECTOR-GENERAL-COMMISSIONER-TO-INVESTIGATE-ALLEGATIONS-OF-BRIBERY-OR-CO.pdf


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DIRECTOR GENERAL, COMMISSION TO INVESTIGATEALLEGATIONS OF BRIBERY OR CORRUPTIONV. GENERAL ANURUDDHA RATWATTE
COURT OF APPEAL
SILVA, J. AND
D. S. C, LECAMWASAM, J.
CA 325/07
H. C. (COLOMBO) B 1579/15FEBRUARY 26th, 2010
Judicature Act – Section 39 – Objection to jurisdiction of any Court offirst instance when ? – Bribery Act – Section 23A(4j – Opportunity to showcause before institutingproceedings-No action can be instituted withoutgiving such opportunity to show cause – Legal maxim expressiounius est exclusion alterius – Patent – Latent lack of Jurisdiction?
The Director General of the Bribery Commission filed action againstthe Accused under Section 23A(3) of the Bribery Act. At the end of theprosecution case, the defence took up an objection that the prosecutionhad failed to comply with the pre-conditions found in Section 23A (4) ofthe Bribery Act. The learned High Court Judge upheld the objection anddischarged the Accused.
In the appeal, the defence raised two preliminary objections, namely,the Bribery Commission should give a person an opportunity to showcause as to why he should not be prosecuted for such offence and theremust be a certificate stating either the person has failed to show causeor the cause shown by the persons is unsatisfactory in the opinion ofthe Bribery Commission.
Held:
(1) The salient ingredient of Section 23A (4) of the Bribery Act is the‘affording of an opportunity’ to ‘show cause’ before instituting anaction. If the opportunity is not given, then it can tantamount toa patent lack of jurisdiction as no prosecution is possible withoutaffording such opportunity before institution of action.
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Director General, Commission to Investigate Allegations of Bribery or
Corruption v. General Anuruddha Ratwatte (Lecamwasam, J.)
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(2) There is no requirement that a certificate or a document shouldbe annexed to the indictment that the Bribery Commission is notsatisfied with the explanation given by the Accused in terms ofSection 23A (4). A certificate of dissatisfaction is not a requirementunder Section 23A (4) of the Bribery Act.
Held further –
Per Lecamwasam, J., –
. . once an opportunity is given and if the Commission is notsatisfied with the explanation given in reply on such occasion, Ihold that the Commission is not bound to issue a certificate orletter of dissatisfaction. Mere fact of institution of action is ampleproof of such dissatisfaction.”
Cases referred to:
1. Kanagarajah v. Queen – 74 N.L.R. 378
APPEAL from an order made by the High Court of Colombo.
Jayantka Jayasuriya, D.S.G. for the Complainant – Appellant
Rienzie Arsecularatne, P.C., with Wasantha Batugoda for the Accused-
Respondent.
Cur.adv.vult.
June 17th 2010
S. C. LECAMWASAM, J.In this case the Director General of the Bribery Commissionfiled action against the accused under Section 23 A (3)of the Bribery Act. At the end of the prosecution case thedefence took up an objection to the effect that the prosecutionfailed to satisfy two pre conditions embodied in section23 A (4) of the Bribery Act and therefore moved court toacquit the accused.
On a perusal of the proceedings it is evident that theparties have made lengthy submissions and on 30th November
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2007 the learned High Court Judge upheld the objection anddischarged the accused. Being aggrieved by the aforemen-tioned order the complainant has filed the instant appeal anda revision application bearing No. 168/2007.
In his written submissions learned Presidents Counselhas raised two preliminary objections, to wit; The BriberyCommission should give a person an opportunity to showcause why he should not be prosecuted for such offence andthere must be a certificate stating either the person has failedto show cause or the cause shown by the person is unsatis-factory in the opinion of the Bribery Commission.
Although the learned Presidents Counsel has urged twopre conditions before this court byway of written submissions,before the High Court he had confined his objectionsmerely to the second point and the order dated 30th November2007 of the learned high court judge too reflects only thesecond point, as the learned defence counsel had not raisedany objections based on the first point. Quite contrary to theposition taken up by the defence counsel in this court, beforethe High court at page 1033 on 26th October 2007 the learnedPresidents Counsel had admitted that the commission hasfulfilled the requirements in relation to the first precondition.Therefore now he is estopped from taking up this particularobjection and the defence cannot be allowed to blow hot andcold. Hence I will only deal with the second precondition towhich the learned counsel has drawn the attention of thiscourt.
The learned Deputy Solicitor General in his written sub-missions has stated that under section 39 of the JudicatureAct the defence is precluded from raising an objection tothe Jurisdiction of the High Court at this late stage of theproceedings. Section 39 of the Judicature Act provides thus;
Director General, Commission to Investigate Allegations of Bribery or
CA Corruption v. General Anuruddha Ratwatte (D. S. C. Lecamwasam, J.)223
“Whenever any defendant or accused party shall havepleaded in any action, proceeding or matter brought in anycourt of first instance neither party shall afterwards beentitled to object to the jurisdiction of such court, but such courtshall be taken and held to have jurisdiction over such action,proceeding or matter. . . ”
It is common ground that in the instant applicationdefence had raised the preliminary objection after theprosecution closed its case. Defence’s contention is thatalthough there was no certificate from the commission to theeffect that it was not satisfied with explanation given, yet theyanticipated some oral evidence to that effect in the course ofthe trial.
Defence further argued by relying on previous judicialpronouncements that an objection to the patent lack ofjurisdiction can be taken up at any stage of the case. Asdefence has argued that in the instant case the absence ofa certificate by the commission amounts to a patent lack ofjurisdiction it is pertinent to look into the provisions ofSection 23A (4) of the Bribery Act.
Section 23 A (4) provides that;
“No prosecution for an offence under this section shall beinstituted against any person unless the Bribery Commissionhas given such person an opportunity to show cause why heshould not be prosecuted for such offence and he has failed toshow cause or the cause shown by him is unsatisfactory in theopinion of such commission”
A plain reading of section 23 A (4) reveals clearly thatgiving “an opportunity” to show cause is of paramountimportance and no action can be instituted without giving
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such an opportunity to show cause. It is also clear that theintention of the legislature was to protect the subjects fromarbitrary prosecution. A careful scrutiny of the section makes itevident that the salient ingredient of this section is the ‘afford-ing of an opportunity’ before institution of action. If the oppor-tunity is not given, then it can tantamount to a patent lack ofjurisdiction as no prosecution is possible without affordingan opportunity. However once an opportunity is given, and onsuch occasion no cause is shown or if the commission is notsatisfied with the explanation, then legal action will follow.According to section 23 A (4) it is the commission who shouldbe dissatisfied with explanation and no one else. Nowhere inthe section is it stipulated that a certificate or a documentshould be annexed to the indictment. Under section 23 A
, if at all, a patent lack of jurisdiction can only arise if anopportunity is not afforded. Assuming but without concedingthat the existence of a certificate of dissatisfaction is arequisite, still it cannot be a patent lack of jurisdiction.
Section 12 (2) of Act No. 19 of 1994 stipulates that thereshall be annexed to every such indictment, in addition tothe documents which are required by the Code of CriminalProcedure Act No. 15 of 1979 to be annexed there to, a copyof the statements, if any, made before the commission bythe accused and by every person intended to be called asa witness by the prosecution. The section is unambiguousand does not disclose any other requirement. The lawmakers never intended to include a certificate of dissat-isfaction or any analogous document as a requisite in anindictment under the Bribery Act.
In my opinion this is eminently a suitable situationwherein the maxim ‘expressio unius est exclusionalterius* should apply. Conceding that this rule of interpre-tation must be applied with great caution, nevertheless inthe situation at hand out of necessity it is relevant.
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Director General, Commission to Investigate Allegations of Bribery or
Corruption v. General Anuruddha Ratwatte (D. S. C. Lecamwasam, J.)225
The application of this maxim results in the exclusionof all other provisions save the expressly mentionedprovisions. As a letter or certificate of dissatisfaction is notmentioned as a requisite under section 12(2) the irresistibleconclusion is that such a letter or certificate is not a precondition. Hence once the Commission is not satisfied with theexplanation, Commission can direct the Director-General toinstitute proceedings under section 11 of Act No. 15 of 1994.Although the defence has attempted to make a mountainout of a molehill, in view of the above reasoning I hold thatthe certificate of dissatisfaction is not a requirement undersection 23 A (4).
Though the learned presidents counsel submitted thatno evidence whatsoever has been led with regard to theexistence of the precondition, I think the learned presi-dents counsel has not adverted his attention correctly to theevidence of Ranatunga at page 899 on 09th July 2007 when
Therefore the defence position of “no evidence whatsoever hasbeen led with regard to the existence of the pre condition” isincorrect. On a comparison of V 35 (show cause notice) andthe indictment it is manifestly clear, out of the twenty five(25) items included in V 35, items 1, 2, 3, 4, 5, 6, 11, 22, 23,24 and 25 totalling to the value of nearly 10.6 Million havenot been included in the indictment. Therefore it is irrefut-able that the explanation given in respect of those items hasbeen accepted and explanation with regard to the other itemshas been rejected.
Adverting back to the submission made by the learnedDeputy Solicitor General under section 39 of the JudicatureAct, as I have already opined that there cannot be a patentlack of jurisdiction under section 23 A (4) otherwise thanon the question of affording an opportunity to show cause,

the witness said
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any other objection should fall under latent lack of jurisdic-tion and hence, should have been taken before the accusedpleaded to the indictment. As the defence could not have beenunaware of the non-availability of a certificate of dissatisfaction,defence should not have lingered till closure of the prosecu-tion case. On that ground alone the objection must fail.
Learned Presidents Counsel for the defence cited thedecision in Kanagarajah v. Queen11*. But as pointedout by the learned Deputy Solicitor General the circumstanc-es in that case was different from the instant case. Especiallyin view of the sequence of events, their lordships hadtaken a sympathetic view in favour of the accused. In HermanFernando (B 1173/96) the issue was whether the noticegiven under section 23 (4) was sufficient or not. But in theinstant case that particular question never arose. All otherjudicial pronouncements cited by the defence are decisionsof the high court and hence is not binding on this court.
Finally I must emphasize that once an opportunity isgiven and if the Commission is not satisfied with theexplanation given in reply on such occasion, I hold that theCommission is not bound to issue a certificate or letter ofdissatisfaction. Mere fact of institution of action is ampleproof of such dissatisfaction. Dictates of common sense toojustifies such a conclusion.
For the aforementioned reasons the appeal is allowedand the order made by the High Court of Colombo dated30th November 2007 is set aside. The matter is referred backto the High Court for further trial.
RANJIT SILVA J – I agree.
Appeal allowed.