113-NLR-NLR-V-66-M.-DON-ANTHONY-Petitioner-and-S.-S.-J.-GOONESEKERA-and-two-others-Responden.pdf
SRI SKANDA RAJAH, J.—Don Anthony v. Oooneselcera
477
1964Present : Sri Skanda Rajah, J., and Alles, J.
M. DON ANTHONY, Petitioner, and S. S. J. GOONESEKERAand, two others, Respondents
S. C. 222 of 1962—Application for a Writ of Certiorari
Certiorari—Bribery Tribunal—Unconstitutional appointment of members—Invalvlityof entire proceedings before such tribunal—Effect of Ike invalidity—Ceylon(Constitution) Order in Council, s. 5-5.
The petitioner had been convicted by a Bribery Tribunal and sentencedto pay a fine. He appealed and, on 5th April 1962, the Supreme Court,purporting to follow Senadhira v. The Bribery Commissioner (63 N. L. R. 313),set aside only the sentence oi fine imposed on him.
Held, that the petitioner was entitled, by way of Certiorari, to have theentire proceedings, including the conviction, quashed on the ground that theBribory Tribunal, inasmuch as it consisted of members who had not beenappointed by the Judicial Service Commission in terms of section 55 of theCeylon (Constitution) Order in Council, had no jurisdiotion to hear anddetermine the case against the petitioner.
-A.PPLICATION for a writ of Certiorari.
M. Tiruchelvam, Q.C., with S. C. Crosselte-Thambiah and K. Thevarajah,for the 2>etitioner.
It. S. Wanasundere, Crown Counsel, as amicus curiae.
Cur. adv. vult.
October 2, 1964. Ski Skanda Rajah, J.—
This application for a writ of Certiorari came to be made under thefollowing circumstances :—
The petitioner Don Anthony was prosecuted by the Bribery Com-missioner before a Bribery Tribunal consisting of the first three res-pondents, who were not appointed by the Judicial Service Commission.The Bribery Tribunal recorded evidence on several dates, convictedthe petitioner of the two charges of bribery in respect of whichhe stood his trial and sentenced him to pay a fine of Rs. 1,000.He appealed and, on 5.4.1962, this Court purporting to followSenadhira v. The Bribery Commissioner1, set aside the sentence offine imposed on him : Don Anthony v. The Bribery Commissioner2.Thereupon, on 17.5.1962, the petitioner filed this applicationalleging that the Bribery Tribunal:—
“ (i) had no jurisdiction whatsoever to hear the case against thepetitioner to make an order on the charges framed againsthim and to impose a sentence on the petitioner ;
“(ii) that the proceedings before the said Tribunal are coram nonjudice;
» (1961) 63 N. L. R. 313.
* (1962) 64 N. L. R. 93.
478
SRI SKANDA RAJAH, J.—Don Anthony v. Oooneaekera
“ (iii) that their findings are null and void and of no effect in law, ”
and praying that the findings and order of the said Bribery Tribunalbe quashed.
It is pertinent to examine the following decisions :
Senadhira v. The Bribery Commissioner (supra) ;
Don Anthony v. The Bribery Commissioner (supra) ;
Piyadasa v. The Bribery Commissioner1;
Ranasinghe v. The Bribery Commissioner 2 ; and
The Bribery Commissioner v. Ranasinghe 3.
In both Senadhira (supra) and Don Anthony (supra) Grown Counseltook the same preliminary objection, which appears in the followingpassage in the judgment of Sansoni, J., at 314 of 63 N. L. R. :—
“ When the hearing of the appeal began, Mr. Pullenayegum raiseda preliminary objection to the appeal being heard, apparently becausehe was under the impression that the appellants were challengingthe validity if the entire Bribery Act. Basing his argument on thecase of The King Emperor v. Benoari Lai Sarma 4 he submitted thatwhere an Act is attacked as invalid, the right of appeal conferred bythe Act cannot be exercised, and some remedy other than appealshould be sought. Mr. H. V. Perera, in reply to this objection, saidthat he was not challenging the validity of the whole Act, nor washe even going to argue that a Bribery Tribunal is an unconstitutionalbody. His objection to the convictions, he said, was that theywere bad in so far as the Bribery Tribunal purported to exercise thepower of convicting, fining and imprisoning persons charged beforeit. He claimed that section 69A of the Act gave him a right of appealwhich he was entitled to exercise by asking that the sentence ofimprisonment and fine be set aside. With regard to the finding ofguilt made against his client, he did not attack that finding as uncon-stitutional, but he submitted that the finding could not stand in viewof the objection of misjoinder taken by him. ”
It will be noticed that “ in the Senadhira case, Counsel for the appellantcontented himself in limiting his submission to the power of the BriberyTribunal to pass sentence as being ultra vires. He indicated that hewas not going to argue that the Bribery Tribunal was an unconstitutionalbody ,” at 394 of 64 N. B. R. 385 (supra).
In Senadhira (supra) this Court made order “ quashing the convictionsand sentences”. In Don Anthony (supra), though this Court said,“ …. wo would on this appeal apply the decision of this Court
in Senadhira's case”, it made order only “ setting aside the sentence offine of Rs. 1,000 imposed on him”. It did not quash the conviction aswas done in Senadhira.
1 {1962) 64 N. L. R. 385.• {1964) 66 N. L. R. 73; 66 O. L. W. 1-
* {1962) 64 N. I. R. 449.* (1945) A. O. 14.
Mercantile Credit Ltd. v. Sub-Inspector of Police
479
In Piyadasa (supra) this Court indicated, that the preliminary objectionraised in the above cases was untenable.
It is relevant to observe that, in view of the preliminary objection,this Court did not find itself called upon to declare the law in decidingSenadhira and Don Anthony (supra). It was only when dealing withPiyadasa (supra) that it felt called upon to do so and it declared that“ all proceedings before it (i.e., Bribery Tribunal) consisting of membersnot appointed by the Judicial Service Commission as required by section55 of the Ceylon (Constitution) Order-in-Council, 1946, are null andvoid," at 395 of 64 N. B. R. (supra).
It is correct to say that the state of the law from the moment thatsection 55 of the Ceylon (Constitution) Order-in-Council came intooperation is that in order to vest judicial power in any tribunal themembers of such tribunal had to be appointed by the Judicial ServiceCommission. The failure to so declare when Senadhira and Don Anthony(supra) were decided does not mean that that was not the law whenthose cases were decided. It would be incorrect to say that Piyadasa(supra) altered the law, as was submitted by Mr. Wanasundere. There-fore, Derrick v. Williams 1 on which he placed reliance has no applicationto the matter now before this Court. That case was decided on thebasis that the law was subsequently altered.
Piyadasa (supra) was followed in Ranasinghe (supra), which wasaffirmed by the Privy Council when it dismissed the appeal of the BriberyCommissioner.*
Mr. Wanasundere’s next submission that the petitioner now seeks toquash the order made by this Court in appeal is not correct. What heseeks to do is to have the proceedings had before the Bribery Tribunalfrom the commencement up to and including the conviction quashed.
This Bribery Tribunal had no jurisdiction to hear and determine thecase against the petitioner. Therefore, the application is allowed andthe proceedings, including the conviction, are quashed. The petitioneris entitled to costs.
Alles, J.—I agree.
Application allowed.