031-SLLR-SLLR-2003-V-3-KORALAGAMAGE-v.-COMMANDER-OF-THE-ARMY.pdf
CA
Koralagamage v Commander of the Army
(Sripavan, J.)
169
KORALAGAMAGEv
COMMANDER OF THE ARMYCOURT OF APPEALSRIPAVAN J„
CA 1094/2000JUNE 3, 2003JULY 4, 2003
Army Act, No. 17 of 1949 – Section 108, and 129 (1) – Regulation 48, 48 (2) b,48 (2) c – Court Martial – Summary of evidence to be recorded – No opportu-nity to cross examine witnesses referred to in the summary of evidence -Principles of natural justice – Nullity.
The petitioner was tried by a General Court Martial for two offences, namely,framed under section 108 and prejudicial conduct under section 129(1).
The petitioner raised a preliminary objection that there was no proper summa-ry of evidence recorded in terms of Regulation 48, and that no opportunity wasgiven to cross examine the witnesses referred to in the summary of evidence- Regulation 48 (2)b.
Held:
Analysis of Regulation 48 shows that a charge is a prerequisite for aninvestigation by the Commanding Officer. The petitioner has every rightto cross examine the witness.
The Commanding Officer investigating the charge failed to apply theminimum rules of procedure referred to in Regulation 48 (2) b.
If the impugned acts are not done in the genuine exercise of the regu-lations then they are not done in the “Exercise of a power conferred bylaw and are a nullity.”
APPLICATION for a writ of certiorari.
Cases referred to:
MacFoy v United Africa Company Ltd. – 1961 3 All ER 1169 at 1172.
Equipment and Construction Co. Ltd., v Ranasinghe – 1985 1 SRI LR82 at 85.
170
Sri Lanka Law Reports
[2003] 3 Sri L.R
Rajan Phillip v Commissioner of Inland Revenue – Vol. I Srikantha LawReports 133.
R. Jayawardana for the petitioner.
Y.J.W. Wijelilleke, DSG for the respondent.
Cur. adv. vult
September 2, 2003SRIPAVAN, J.
The petitioner joined the Sri Lanka Army (Regular Force) on 0126th December 1972, commissioned as a Lieutenant (QuarterMaster) and attached to Artillery Brigade at Panagoda at the rele-vant time. In February 1999, the petitioner was charged before aGeneral Court Martial for committing an offence punishable underSec. 108 of the Army Act, No. 17 of 1949 as amended, for hav-ing dishonestly sold one hundred and fifty empty Artillery Shells(130 mm) to Mr. A.P. Jayasiri Perera for a sum of Rupees93,000.When the General Court Martial assembled for trial on 24thFebruary 1999, the petitioner pleaded not guilty to the charge 10against him and raised a preliminary legal objection that the sum-mary of evidence recorded was contrary to Regulation 48 (2) [c] ofthe Army Discipline Regulations, 1950 inasmuch as the command-ing officer failed to caution the petitioner in the manner providedtherein. Having considered the submissions, the eighth respondentadvised the General Court Martial that the petitioner should be dis-charged from the proceedings and the Court Martial made order on24th February 1999 discharging the petitioner from the said pro-ceedings as evidenced by X4.
On 11th May 2000, the first respondent convened another 20General Court Martial comprising the second to the eighth respon-dents to try the petitioner for two offences, namely
Fraud committed under sec. 108 of the Army Act; and
Conduct of the petitioner prejudicial to military disci-pline under Sec. 129 (1) of the Army Act.
CA
Koralagamage v Commander of the Army
(Sripavan .1 )'
171
When the General Court Martial assembled on 28th July2000 to proceed with the trial, the counsel appearing for the peti-tioner raised a preliminary objection that there was no proper sum-mary of evidence recorded in terms of Regulation 48 of the ArmyDisciplinary Regulations in that the first respondent made use ofthe same evidence recorded earlier marked X3 in addition to twonew statements from two police officers, namely, P.C. 27254Prematilleke and P.C. 889 Jayashantha from the KadawathaPolice. Learned Counsel for the petitioner submitted that the peti-tioner was not afforded an opportunity to cross examine the wit-nesses referred to in the summary of evidence marked X3 on thesecond charge, in violation of Regulation 48 (2)(b).
The learned Deputy Solicitor. General appearing for therespondents argued that the addition of the second charge wouldnot cause prejudice to the petitioner as he would have every rightto defend himself at the court martial by cross examining every wit-ness who gave evidence against the petitioner. Counsel contendedthat where there is a two-tire system of inquiry, the principles of nat-ural justice do not require that the petitioner be given the right ofcross examination at every stage.
Regulation 48 of the Army Discipline Regulations, 1950 readsas follows:-
48 (1) It shall be lawful for a commanding officer investigatinga charge against a person subject to military law to adjourn suchinvestigation for the purpose of taking a written summary of the evi-dence on oath or affirmation in the presence of the accused.
(2) At any hearing held for the purpose of taking a writtensummary of evidence referred to in paragraph (1), the followingprovisions shall apply:
The accused may put questions in cross examinationto any witness, and the questions with the answersshall be added, in writing, to the evidence alreadytaken down.
An analysis of the aforesaid Regulation shows that a chargeis a pre-requisite for an investigation by the commanding officer.
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172
Sri Lanka Law Reports
[2003] 3 Sri L.R
Thus, the petitioner has every right to cross examine the witnessesin respect of the second charge, namely, “Conduct Prejudicial toMilitary Discipline”. The ambit of natural justice extends not merelyto protect the rights of the petitioner but any legitimate expectationhe has to cross examine the witnesses. It would not be fair todeprive the petitioner the right to cross examine the witnesses interms of Regulation 48(2)(b) of the Army Discipline Regulations.What is required is substantial compliance of the said regulationstaking into consideration the gravity of the matter in issue and the 70nature of the decision to be made finally which would have graveconsequences affecting the petitioner’s rights. In the absence ofany documentary proof to show that the petitioner waived his rightto cross examination, I hold that the commanding officer investi-gating the charge failed to apply the minimum rules of procedurereferred to in Regulation 48(2)(b).
If the impugned acts are not done in the genuine exercise ofthe regulations then they are not done in the “exercise of a powerconferred by law” and are a nullity. The jurisdictional principleserves as the main plank of judicial review. “No legally recog- sonised rights found on the assumption of its validity shouldaccrue to any person even before the act is declared to beinvalid or set aside in a Court of Law” – Hailsham (4th edition)
Vol.1 para 27. “You cannot put something on nothing andexpect it to stay there, -it will collapse” – Lord Denning inMacFoy v United A frica Company Ltd <1 >.
Learned Deputy Solicitor General contended that since thepetitioner did not raise any objection to the jurisdiction of theGeneral Court Martial, he cannot take up such objection later, inview of the provisions contained in Regulation 57 of the Court 90Martial (General and District) Regulations. As observed earlier, ifan act is a nullity, it is null and void for all purposes. The GeneralCourt Martial lacks jurisdiction in view of the failure on the part ofthe commanding officer to afford an opportunity to the petitioner tocross examine the witnesses. Hence, the proceedings of theGeneral Court Martial has no legal consequences. As observed byWanasundera, J. in the case of Equipment and Construction Co.,
. Ltd v RanasingheW. ‘We are of the view that it is always opento an aggrieved person in a criminal case to raise an issue
Koralagamage v Commander of the Army
CA(Sripavan, J.);.173
going to jurisdiction even at a late stage of the proceedings. In 100this case, however, it would appear that the question of juris-diction was very much in issue in the proceedings and had infact been raised more than once in the present proceedings.”
In the case of Rajan Philip v Commissioner of Inland Revenue-G.P.S. De Silva, J., (as he then was) held that "Since the objectiontaken is of a fundamental nature which strikes at the heart of thejurisdiction of the court, I hold that the conduct of the petitioner inthis case does not disentitle him from taking the objection after acertificate has been filed in terms of sec. 111 (7) of the Act".
For the above reasons, a writ of certiorari is issued quashing 110the convening of the General Court Martial by order dated 11th May2000 marked X5 and the proceedings before the second to theeighth respondents dated 28th July 2000 marked X10. This orderhowever does not prevent the first respondent from initiating .pro-ceedings afresh against the petitioner in terms of the provisions ofthe Army Act and the regulations framed thereunder. The applica-tion of the petitioner is accordingly allowed. There will be no costs.
Application allowed.