036-SLLR-SLLR-2004-V-2-LALITH-DESHAPRIYA-v.-CAPTAIN-WEERAKOON-AND-OTHERS.pdf
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LALITH DESHAPRIYAvCAPTAIN WEERAKOON AND OTHERSCOURT OF APPEAL
SALEEM MARSOOF, P.C.J., (P/CA)
SRIPAVAN, J.
C.A. 968/2002MAY 27, 2004
Writs of Certiorari and Mandamus – quash conviction – dismissal fromservice – Constitution Articles 126, 140, 11, 13(1), 13(2), 13(4) – Violationof Fundamental Rights – Navy Act – Section 29, 6, 69, 8A, 82(b), 84, 132(1)- Summary Trial – Conviction – Rules of natural justice not followed? – Nofair hearing? – nemo judex in causa sua potest- qui aliquid statuerit parteinaudita altera acqum licet discerit, hand acqun fecerit.
CA
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The petitioner was arrested for the loss of pistol from the main Armoury. Thepetitioner after summary trial on 6 charges – not disciplinary as well asdisciplinary – was convicted and the petitioner was sentenced to imprisonmentand dismissed from the Sri Lanka Navy with disgrace.
Held:
A plain reading of section 29 would reveal that an accused charged witha disciplinary offence is entitled to a Court Martial except in situation undersection 148 and cannot be dealt with summarily without being askedwhether he desires to be dealt with summarily or by Court Martial.
This option was offered after the petitioner pleaded to the charges beforehim.
The petitioner did not have the benefit of a fair hearing.
The trial was conducted when the petitioner was not in a condition to facethe trial freely and benefit from the protection afforded by law.
No charge sheet was served prior to the summary proceeding before the1 st respondent.
The petitioner was not afforded the opportunity of obtaining the services ofa Defence Officer.
The impugned proceedings have been conducted by the veryCommanding Officer who was found by the Supreme Court to have beenresponsible for the assault and torture of the petitioner while in custody.
The entire proceedings before the 1 st respondent are a nullity.APPLICATION for writs in the nature of certiorari and mandamus.
Cases referred to:
Lindara Mudiyanselage Lalith Deshapriya v. Captain Weerakoon,Commanding Officer, SL Navy Ship Gemunu and others – SCFR 42/2002- SCM 8.8.2003.
Board of Education v Rice – 1911 AC 179 at 182.
De Vertend v Knaggs -1918 AC 557 at 560.
Chulabadra v University of Colombo, 1985 1 Sri LR 244 at 303.
R. v Sussex Justice – 7924 – 2 KB 256.
Needra Fernando v Ceylon Tourist Board and others 2002 – 2 Sri LR 169at 180, 181.
Saliya Pieris with Chamath Madanayake for petitioner.
Nalinda Indatissa with Gamini Silva for 1 st respondent.
L.M.K. Arulanandan D.S.G. with Ms. Uresha de Silva, S.C., for 2nd and 3rdrespondents.
Cur. adv. vult.
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June 11, 2004
SALEEM MARSOOF, J. (P / CA)This is an application for writs of certiorari to quash the 01conviction, imprisonment and dismissal from service of thepetitioner and for a writ of mandamus to re-enlist him to the rank ofPetty Officer in the Sri Lankan Navy. The petitioner invokes the writjurisdiction of this Court in terms of Article 140 of the Constitution ofSri Lanka read with section 132(1) of the Navy Act, No. 34 of 1950as subsequently amended. It is worth noting at the outset that thesupervisory jurisdiction of this Court extends to proceedingsconducted by a court martial or a commanding officer or otherofficer dealing summarily with an offender in view of section 132(1) 10of the Navy Act which expressly provides that –
“Such of the provisions of Article 140 of the Constitution asrelate to the grant and issue of writs of mandamus, certiorari,and prohibition shall be deemed to apply in respect of anycourt martial or of any naval officer exercising judicial powersunder this Act.”
The petitioner originally joined the Sri Lanka Navy as a Sailorand was promoted to the rank of Able Seaman in 1993, andthereafter to the rank of Leading Seaman in 1997. In paragraph 5of the petition and paragraph 6 of the petitioner’s affidavit dated 2015th May 2002 tendered along with the petition, the petitioner hasstated that he was informed of his promotion to the rank of PettyOfficer and was “told that the official letter of appointment willfollow.” This position has been admitted by the 2nd respondent,who is the Commander of the Sri Lanka Navy, in his affidavit dated22nd November 2002 filed in these proceedings.
Act One of the drama of the petitioner’s arrest and convictionbegins with the report of the alleged loss of a pistol from the mainarmory of the Sri Lanka Ship ‘Gemunu’, in which the petitioner wasserving at the relevant time. It is alleged that the loss was 30discovered when an inventory was taken to facilitate the transfer ofthe petitioner from the said Navy Ship to the naval base at Kirinda.
It is in evidence that by reason of the suspicion that the petitionermay be responsible for the loss of the pistol, the petitioner was keptunder ‘close arrest’ from 4th September 2001 to 8th January 2002.
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The next episode in this intriguing drama begins after the othersix persons arrested along with the petitioner on 4th September2001 were released, while the petitioner continued in detention. Inparagraphs 10, 11 and 12 of his affidavit the petitioner hasdescribed what transpired while he was held by the 1st respondentin the following words:-
“I state that one Sailor Fernando and Able Seaman Premasiriwho were attached to the Navy Detention Barrack had blindfolded me and tied me up and suspended me from a woodenpole which was hung from the roof. The way in which I wassuspended enabled them to revolve me around the woodenpole. I state that this method of torture is commonly known as“Dharmachakraya”. While I was being thus revolved saidpersons assaulted me with poles and I was questioned aboutthe missing pistol.
I state that I was assaulted by the aforesaid Premasiri andFernando and two others namely Able SeamanMeegahakumbura and Lieutenant Commander H.D. Gamagecontinuously and the 1st respondent had obtained mysignature to several documents forcibly which I was notallowed to read nor explained to me. I state that the 1strespondent forced me to make a statement admitting that thepistol was taken by me and it was recorded to a cassette. I didthe same because I had no alternative and under duress.
I state that on one occasion I was blind folded and a heatedclothes iron was placed on my back where the scar is stillvisible. I state that a barbed wire was inserted in to my anusand as a result of which I sustained injuries in the anal area. Ifurther state that I identified the respondents from their voices.I state that while I was blind folded the respondents put chilliepowder onto my nose, penis and anus”
In paragraph 14 and 15 of his affidavit, the petitioner hasexplained how with the assistance of his father and an Attorney-at-law, he was able to invoke the jurisdiction of the Supreme Courtunder Article 126 of the Constitution of Sri Lanka seeking redressfor the alleged violation of his fundamental rights guaranteed byArticles 11, 13(1), 13(2) and 13(4) of the Constitution. These
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proceedings eventually resulted in the determination of theSupreme Court in Lindara Mudiyanselage Lalith Deshapriya vCaptain Weerakoon, Commanding Officer, Sri Lanka Navy Ship‘Gemunu’ and Others,W that the fundamental rights of thepetitioner under Article 11 of the Constitution had been violated bythe 1st respondent and some of his subordinate officers. TheSupreme Court held that the petitioner was kept in custody on thespecific orders of the 1st respondent and that he is responsible for sothe said violation of the petitioner’s fundamental rights. The Courtaccordingly awarded the petitioner a sum of Rs. 150,000 ascompensation and further directed that costs amounting to Rs.20,000/= should be paid by the 1 st respondent personally.
Act Three of this drama simply consists of the summary trial ofthe petitioner conducted by the 1 st respondent on 6 charges whichare set out at the commencement of the proceeding dated 8thJanuary 2001, a copy of which has been produced with the 1strespondent’s affidavit marked 1R2. It is noteworthy that Charges I,
II and VI related to disciplinary offences based respectively on 90sections 61, 69 and 104 of the Navy Act. The other charges werenon-disciplinary charges based respectively on sections 82 (b), 81and 84 of the Navy Act. Evidence had been led and concluded on8th January 2002 though in the proceedings marked 1R2 the dateis given as 8th January 2001 by reason of what has been describedas “a typographical error” by the 1 st respondent in paragraph 16 ofhis affidavit dated 2nd November 2002. The said summary trialculminated in the conviction of the petitioner with respect to four outof the six charges and the approval by the 2nd respondent on 7thFebruary 2002 of the recommendation of the 1st respondent dated iqp8th January 2002 (IR3) that the petitioner be sentenced toimprisonment for 120 days in addition to being dismissed from theSri Lankan Navy with disgrace. It is this determination that thepetitioner seeks to have quashed by certiorari, while also seeking awrit in the nature of mandamus directing the respondents to re-enlist him to the rank of Petty Officer in the Sri Lanka Navy.
The petitioner has sought to challenge the said conviction,sentence of imprisonment and order of dismissal from service onthe ground that they are unreasonable, arbitrary, illegal, capricious,mala fide and ultra vires. However, at the hearing the learned 110
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Counsel for the petitioner was content to rest his case on the groundthat the said orders have been made contrary to the procedureestablished by law and in violation of the rules of natural justice.
Learned Counsel for the petitioner relied on section 29 of theNavy Act, as amended by Act, No. 11 of 1993, which is quoted below:
“Where a warrant officer or petty officer is charged with a non-capital naval offence other than a disciplinary offence or anoffence which is expressly required by this Act to be tried by acourt martial, his commanding officer shall ask him whether hedesires to be dealt with summarily or to be tried by a court 120martial, and, if he elects to be tried by a court martial, shall takesteps for his trial by a court martial.”
Counsel for the petitioner contended that although in terms ofthis provision, the 1st respondent who was the petitioner’scommanding officer, should have offered to the petitioner the option ofbeing dealt with summarily or being tried by a court martial, no suchoption was afforded to the petitioner prior to being asked to pleadbefore, the 1 st respondent. It was, however, submitted on behalf of therespondents that as three out of the six charges levelled against thepetitioner related to disciplinary offences with respect to which an 130accused is not entitled to an option under section 29, the procedurefollowed was in order. It was also submitted that in any event, thepetitioner was in fact asked by the 1st respondent whether he desiresto be dealt with summarily or to be tried by a court martial after hepleaded before the 1st respondent. A plain reading of section 29would reveal that an accused charged with a disciplinary offence isentitled to a court martial (except in the situation contemplated bysection 148) and cannot be dealt with summarily without being askedwhether he desires to be dealt with summarily or by court martial. The1st respondent made a mockery of this section by purporting to offer uothe option after the petitioner pleaded to the charges before him.
Even more serious is the violation of the two cardinal principlesof natural justice embodied in the maxims audi alteram partem andnemo judex in causa sua potest. The first of these principlespostulates a fair hearing before the rights of a citizen are affected bya quasi judicial or administrative decision. In this context, it is nowrecognised that qui aliquid statuerit parte inaudita altera acquum licet
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discerit, hand acquum fecerit – which means that he who determinesany matter without hearing both sides, though he may have decidedright, has not done justice. According to the jurisprudence built 150around the audi alteram partem principal, there should not only be ahearing of both sides, but the hearing should be more than apretence. The procedure followed should be fair and conducive to theachievement of justice. In Board of Education v Ricd2> at 182 LordLoreburn, L.C. in his famous dictum laid down that a tribunal wasunder duty to “act in good faith, and fairly listen to both sides for thatis a duty lying upon every one who decides anything.” In De Verteudv Knaggsfi) at p.560 it was laid down as follows:
“In general, the requirements of natural justice are first, that theperson accused should know the nature of the accusation 160made; secondly, that he should be given an opportunity to statehis case; and thirdly, that the tribunal should act in good faith.”
As his Lordship Sharvananda, C.J. observed in Chulabadra vUniversity of Colombo <4) at 303, “the obligation to give the person -charged a fair chance to exculpate himself or fair opportunity tocontrovert the charge may oblige the tribunal not only to inform thatperson of the hearsay evidence, but also give the accused a sufficientopportunity to deal with that evidence.”
Did the petitioner have the benefit of a fair hearing? As notedearlier, the Supreme Court has held in Lindara Mudiyanselage Lalith 170Deshapriya v Captain Weerakoon, Commanding Officer, Sri LankaNavy Ship ‘Gemunu’and Others (supra), that the petitioner has beensubjected to assault and torture while he was in custody within theperiod 4th September 2001 to 8th January 2002 and the trial againstthe petitioner was commenced and concluded by the 1 st respondenton 8th January 2002, which shows that the trial was conducted whenthe petitioner was not in a condition to face the trial freely and benefitfrom the protection afforded by law. Furthermore, in proceedingsconducted by a court martial or a commanding officer or other officerdealing summarily with an offender, it is usual to serve a charge sheet isoon the accused to give him notice of the allegations against him sothat he would have a fair chance of meeting these allegations. Thepetitioner has alleged that he was not served with a charge sheetbefore hand, and that he was brought before the 1 st respondent fromthe place where he was detained on 8th January 2002 and certain
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charges were read out to him. He has further asserted that althoughhe pleaded not guilty to the charges read out to him, the 1strespondent threatened and abused him and went on to record a pleaof guilty and forced him to sign certain papers under duress. On aperusal of the proceedings marked IR2 it appears that the chargesare set out at the commencement thereof, and the absence of aseparate charge sheet as an annexure to the affidavit of either the 1stor the 2nd respondent, gives credence to the petitioner’s position thatno charge sheet was in fact served on him prior to the summaryproceedings before the 1st respondent. It is also-difficult to believe, inthe peculiar circumstances of this case, that the petitioner freelypleaded guilty to all the charges leveled against him.
Learned Counsel for the petitioner has emphasised that the audialteram partem rule was further violated by failing to afford thepetitioner the opportunity of obtaining the services of a DefenceOfficer at the proceedings before the 1 st respondent. Counsel for therespondent relied on the proceedings marked IR2 in which it has beenrecorded that the petitioner was defended by a lieutenant by the nameof K.B. Wijesooriya, but the respondents have failed to file anyaffidavit from the said officer in these, proceedings to contradict thepetitioner’s position that he was not provided with a Defence Officer.The assertion of the petitioner is plausible in all the circumstances ofthis case, and in particular the fact that on the face of IR2 none of theprosecution witness have been subjected to any cross-examinationby Lieutenant Wijesooriya.
What is most disturbing to this court is the flagrant violation bythe 1st respondent of the maximum nemo judex in causa sua potest.This is a rule of natural justice that prevents a person suspected ofbeing biased from deciding a matter. That maxim literally means thatno man shall be a judge in his own cause. This rule is based on thefundamental requirement which was highlighted in Lord Hewart’sjudgment in R v Sussex Justice<5) that “it is not merely of someimportance, but of fundamental importance that justice should notonly be done, but should manifestly and undoubtedly be seen to bedone”. As pointed out by Gunawardana, J. in Needra Fernando vCeylon Tourist Board and Othersrf6) at 180 and 181 –
‘This is a safeguard which is really not concerned with the fact
that the decision-maker was actually biased but with the
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possibility that he or she might have been biased. People whoare likely to be biased cannot realistically be expected to makefair decisions.”
The impugned proceedings have been conducted by the verycommanding officer who was found by the Supreme Court in LindaraMudiyanselage Lalith Deshapriya v Captain Weerakoon,Commanding Officer, Sri Lanka Navy Ship ‘Gemunu’ and Others 230(supra) , to have been responsible for the assault and torture of thepetitioner while in custody. It is true that in the judgment of theSupreme Court there is no specific finding that the 1 st respondent hadpersonally assaulted or tortured the petitioner, and this fact wasstressed by the learned Counsel for the 1st respondent. However, it isimportant to note that Supreme Court has held that the petitioner wassubjected to torture while he was in custody on the specific orders ofthe 1st respondent who was at the relevant time the CommandingOfficer of the Naval Ship ‘Gemunu’.
In the opinion of this Court, the entire proceedings conducted by .240the 1 st respondent are in violation of the two fundamental principlesof natural justice noted above. In the circumstances, the Court findsthat the entire proceedings before the 1st respondent are a nullity andshould be quashed along with the consequent order dated 7thFebruary 2002 (IR3) imposing on the petitioner a sentence of 120days of imprisonment in addition to dismissal from the Sri LankanNavy with disgrace. It follows that the mandamus prayed for directingthe respondents to Te-enlist the petitioner to the rank of Petty Officerand to pay him back wages and other allowances for the relevantperiod should be allowed. Court accordingly makes order granting the 250writs of certiorari and mandamus as prayed for by the petitioner inprayers (c), (d) and (e) to the petition. This order will not preclude therespondents from commencing fresh proceedings in accordance withlaw with respect to any breach of discipline or misconduct that mayhave been committed by the petitioner. In all the circumstances of thiscase, the Court makes no order for costs.
SRIPAVAN, J. – I agree.
Application allowed.