Mendis, Fowzie and others v. Goonewardena, G. P. A. Silva

047-SLLR-SLLR-1978-79-V2-Mendis-Fowzie-and-others-v.-Goonewardena-G.-P.-A.-Silva.pdf


322
Sri Lanka Law Reports
(1978-79) 2 Sri L R.
As far back as 1961, the plaintiff had drawn the attention of the defen-dant to the fact that he was not in occupation of the said premises. On thebasis that he had sub-let the premises, the plaintiff had served notice onhim to vacate the premises and had even drafted a plaint on that basis. Until1972, the plaintiff had no opporunity to seek ejectment on the ground ofnon-occupation. Immediately, the opportunity arose after awaiting the stipu-lated six months, he filed this action. Therefore, there has been no acquies-cence by the plant iff.
I hold that the ■ judgment in favour of the plaintiff has been correctlyentered by the learned Magistrate and dismiss the appeal with costs.
Appeal dismissed
Mendis, Fowzieand othersv.Goonewardena, G. P. A. SilvaCOURT OF APPEAL.
VYTHIALINGAM, J„ ABDUL CADER, J„ AND ATUKORALE, J.
C. A. APPLICATIONS. 669/78, 695/78, 766/78 , 789/78 , 873/78, 805/78, 880/78,924/78, 1024/78, 421/78, 693/78, 750/78, 757/78, 912/78 AND 914/78JULY 30 AND 31, 1979 AND
AUGUST 6,8,9, 10, 13, 14, 15, 16, 17, AND 20, 1979.
Writ of Certiorari — is Commissioner holding inquiry under S. 2 of Commis-sions of inquiry Act and making his report amenable to certiorari ? -Will certiorari He where it would be futile ? — Natural justice — Duty to actfairly — Imposition of civic disabilities — Relevant person – Will quashingof findings of commission involve questioning of validity of laws whichis prohibited by Article 80(3) of the Constitution ?
The President by warrant appointed two one man Commissions underthe Commissions of Inquiry Act to inquire into and report (with theirrecommendations) on whether in the course of the administration by theCouncil or by any person appointed under any written law, of the affairsof each of the twelve municipalities specified in the schedule to the warrant,there had been incompetence, mismanagement, abuse of power, corruption,irregularities in the making of appointments of persons, or contraventionsof any provisions of any written law and the extent of their responsibility.Upon receiving the reports Laws No. 38 and No. 39 of 1978 were passedimposing civic disabilities on certain persons specified in the Schedules tothe two laws against whom findings had been made by the respectiveCommissioners. Fifteen applications were then filed by some of the persons
CA
Mend is, Fowzie and Others v. Goonewardena, G. P. A. Silva
323
affected by the said laws seeking certiorari to quash the findings of thetwo Commissioners relating to them.
Two preliminary questions of law came up for decision namely :
Whether the reports and inquiries conducted by the two Commis-sioners under the provisions of S. 2 of the Commissions of InquiryAct can be reviewed or be made the subject matter of review bythe Court of Appeal and whether they are amenable in whole orin part to a writ of certiorari ? and
Whether in view of the passage of Laws Ncs. 38 and 39 of 1978(whose validity cannot be canvassed in Court in view of Article80(3) of the Constitution) a writ of certiorari will in any eventbe futile and whether this Court will exercise its discretion toissue a writ which will be futile ?
Held
The questions could be considered under the three parts of the proposi-tion, as enunciated by Slesser L. J. that —
Whenever any body of persons
having legal authority
to determine questions affecting the rights of subjects, and
having the duty to act judicially
acts in excess of its legal authority it will be subject to the controlling writjurisdiction of the Court.
(a) Generally legal authority means statutory authority or authorityunder the common law. This has been extended to include acts of publicauthorities including University disciplinary authorities who are not vestedwith any power under any statute or common law. But in the instant casethe Commissioners being appointed by the President undoubtedly had"legal authority".
(b) (i) In making their Report in this case the Commissioners had tocome to findings and make determinations and any adverse decision wouldundoubtedly affect the character of the persons concerned and their reputa-tion and integrity arid ruin their careers in addition to making them suffercivic disabilities under the two laws. The determinations of the two Commis-sioners would grievously affect these persons of their own force, propriovigore. The conclusions would therefore have to be arrived at by a processconsistent with the rules of natural justice after informing the party of thecase against him and affording him an opportunity to defend himself. The
324
Sri Lanka Law Repons
(1978-79) 2 Sri L. R.
rights affected need not be legally enforceable rights or confined to thejurisprudential concept of rights. They comprise an extensive range of legallyrecognised interests the categories of which have never been closed.
(ii) In the case of the imposition of civic disabilities the findings anddeterminations of the Commissions were a necessary and integral part of theproceedings which culminated in the rights of subjects being affected, whilein the case of the character and reputation of the persons concerned theyhave been directly affected by the very force, proprio vigore, of theirdecisions and determinations.
(c) The requirement of acting judicially in essence is nothingbut a requirement to act justly and fairly and not arbitrarily or capriciously.The Commissioners had a duty to act fairly by observing the rules of naturaljustice.
Accordingly the Commissioners were amenable to the writ jurisdictionof the Court.
It is true that certiorari is a discretionary remedy and the court willnot issue the writ if it would be futile to do so. But here the quashing ofthe decision or determination will clear the person's character and reputation.Further although the quashing of the findings will not restore the civic rightsto the person affected yet whenever the necessity arises he can take up theposition that he is not a "relevant person" within the meaning of the twolaws because there would then be no finding of the Commissioners (whichis one of the requisites of the definition of relevant person) against him.Hence the issue of the writ will not be futile.
Nor will the issue of the writ involve the questioning of the validity ofthe two laws which is something prohibited by Article 80(3) of the Consti-tution. The laws impose civic disabilities only on every relevant person —meaning (1) a person who has been found by the report of the Commis-sioners to have committed or aided or abetted in the commission of anyof the acts specified therein and (2) named in the schedule to the laws. Bothconditions have to be satisfied if the civic disabilities are to be imposed onany relevant person. If there are no findings by the Commissioners againstsuch person he would not be a relevant person to whom the laws wouldapply. This involves only construction and applying the laws and does nottouch the question of the validity of the laws in any manner whatsoever.
Cases referred to:
De Mel v. M. W. H. de Silva (1949) 51 NLR 105
De MeI v. M. W. H. de Silva (1949) 51 NLR 282
Saif AH v. Mitchel & Co. et al (1978} 3 AUER 1033
CA Mendis, Fowzie and Others v. Goonewardena, G. P. A. Silva
325
R. v. Electricity Commissioners (1924) 1 KB 171, 205
Fernando v. Jayaratne (1974) 7 8 NLR 123
Regina v. Criminal Injuries Compensation Board – ex parte Lain [ 1967]
3 WLR 348, 351, 358: [1967] 2 All ER 770 [1967] 2 QB 864,882, 888.
Ridge v. Baldwin [1963] 2 All ER 66, 77, 80; [1964] AC 40; [1963]
WLR 935 (H. L.)
R. v. London County Council (1931) 100 L.J.K.B 760.
R. v. Aston University Senate ex parte Roffey [1969] 2 QB 538
Da/mia v. Justice Tendolkar AIR 1958 SC538.
R v. Statutory Visitors, St. Lawrence Hospital Caterham ex p. Pritchard
[1953] 2 All ER 766, 773.
Packer v. Packer [ 1954] L. R. P. 15, 22.
N. Q. Dias i/. C. P. G. Abeywardena (1966) 68 NLR 409, 411.
Jayawardena v. Silva (1970) 73 NLR 289 (P.C.).
Pearl berg v. Varty[1972] 2 All ER 6.
Wiseman v. Borneman [ 191UAC 297,308.
In re Ratnagopal (1968) 70 NL R 409.
Ratnagopal v. The Attorney-General (1969) 72 NLR 145.
Fernando v. Jayaratne (1974) 78 NLR 123, 126, 130.
University Council of Vidyodaya University v. Linus Silva (1964) 66
NLR 505 (P. C.)
Vine v. National Dock Labour Board[1957] AC 488; [ 1956] 7,QB 674
R v. Criminal Injuries ^Compensation Board, ex parte Tong (1975)
All ER 678. 679 (Q.B.D.).
Ex parte Tong (1977) 1 All ER 171, 175 (AC).
Nakkuda AH v. Jayaratne (1950] 51 NLR457, 460, 463 (PC).
R v. Metropolitan Police Commissioner ex parte Parker (1953)
1 WLR 1150.
326
Sri Lanka Law Reports
(1978-79) 2 Sri L. R.
R v. Gaming Board for Great Britain, ex p. Benaim and Khaida [19701
2 AH ER 528, 533, [1970]2 QB 417, 430.
Reg. v Liverpool Corporation, ex parte Tari Fleet Operators Association
[1972] 2 Q.B. 299, 308, [1972]2 WLR 1262.
In re Pergamon Press [ 1970] 3 All ER 535, 539.
Fisher v. Keane (1880) 49 LJR 11, 16; (1878) 11 Ch. D. 353.
Subramaniam v. Inspector of Police, Kankesanturai (1968) 71 NLR
204, 209, 210.
Schmidt v. Secretary of State for Home Affairs [1969] 2 Ch. 149.
R v. McArthur ex P. Cornish (1966) Tas. S. R. 157.
A. K. Ktipak v. Union of India AIR 1970 S. C. 150, 154.
R v. London Country Council ex p. Commercial Gas Co. (1895/
II T. L. R. 337.
Jaganath Rao v. State of Orissa A /R 1969 SC 215.
Sammbu Nath Jha v. Kedar Prasad Singha AIR 1972 SC 1215.
Lockwood v. The Commonwealth and others (1953—1954/ 90 CLR 177.
W. F. Conor v. G. Waldron [1935] AC 76.
Rota Co. (Australia) Pty Ltd. v. The Commonwealth (1944-45) CLR
185, 203, 204.
Allen Berry & Co. v. Vivian Bose AIR 1960 Punjab 86.
R v. Legislative Committee of the Church Assembly ex p. Haynes-
Smith [1928] IK.B. 411, 415.
Dayaratne v. Bandara S. C. Application No. 924/77 — S. C. Minutes of
28.11.1978.
R v. Willington (London Borough) ex party Royce Homes Ltd. [1974]
2 All ER 643, 648.
R v. Hull Prison Board of Visitors [197812 All ER 198, 202.
Maradana Mosque Trustees v. Mahmud [1966]68 NLR 217.
R v. Paddington Valuation Officer [ 1966] 1-QB 380.
R v. Chief Immigration Officer [1969] iQB 333.
CA
Mendis, Fowzie and Others v. Goonewardena, G. P. A. Silva
327
R v. Greater London Council, ex p. Blackburn [1976] 1 WLR 550.
Russel v. Duke of Norfolk (1949) 1AHER 109, 118.
Re H.K. (an Infant) [1967] 2 QB 617, (1967] 2W.L.R. 962; (1967)
1 All ER 226.
Field General Court Martial (1915) 18 NLR 334, 336.
Dankoluwa Estates Co. Ltd. v. The Tea Controller (1941) 42 NLR 197,
206.
Thassim v. Edmund Rodrigo (1947) 48 NLR 121, 127.
Grenier's Reports [1873] P. 125.
Bennetv. Chappel and another [1965] 3 All ER 180.
British Railways Board v. Pickin [1974] All ER 609, 618 (1975) AC 765.
Minister of Health v. Regem ex parte Yaffe (1931) All ER (Reprint) 343,
346.
Durayappah v. Fernando (1966) 69 NLR 265, 270 (PC).
Jayawardena v. Silva (1969) 72 NLR 25 – see Case No. 14.
Attorney-General v. Chanmugam (1967) 71 NLR 78.
APPLICATIONS for Certiorari to quash findings of Commissions appointedunder Commissions of Inquiry Act.
Nimal Senanayake with K. P. Gunaratne, Sanath Jayatileke,Henry Jayamaha, (Miss) S. M. Seneratne, Saliya Mathew, and(Mrs.) Kusum Dissanayake for petitioner in C. A. Appln. 669/78C. Ranganathan, Q.C. for respondent.
E. D. Wickramanayake for petitioner in C. A. Appln. 695/78.
C. Ranganathan, Q.C. for respondent.
H. Mendis for petitioner in C. A. Appln. 766/78
J.W. Subasinyhe with G. F. Sethukavalar and
K.Sivanandan for respondent.
H. L. de Silva with E. D. Wickremanayake for petitioner in C. A.Appln. 693/78.
K. N. Choksy with K. Kanag-lswaran, Laksman de Alwis,
A. L. Britto Muthunayagam and Ronald Perera for respondent.
328
Sri Lanka Law Reports
(1978-79) 2 Sri L. R.
V. S. A. Pu/lenayagam with Neeian Tiruchelvam, (Mrs) S.Gnanakaran and N. Y. Casie Chetty for petitioner in C.A. Appln.880/78.
J. W. Subasinghe with K. Sivanandan for respondent.
Nimal Senanayake with Nalin Abeynaike for petitioner in C.A.Appln. 924/78.
C. Ranganathan, Q.C. with K. Sivanandan for respondent.
Walter Perera for petitioner in C.A. Appln. 1064/78.
C. Ranganathan, Q.C. with K. Sivanandan for respondent.
Nimal Senanayake for petitioner in C. A. Appln. 421/78
J.W. Subasinghe with G. F. SethukavaSar and K. Sivanandanfor respondent.
E D. Wickramanayake for petitioner in C.A. Appln. 750/78.
K.N. Chosky with K. Kanag-lswaran, Laksman de A/wis,
A. L. Britto Muthunayagam and Ronald Perera for respondent.
E. R. S. R. Coomaraswamy with J. C. T. Kotalawela andR. K. Suresh Chandra for petitioner in C. A. appln. 757/78.
K. N. Choksy with K. Kanag-lswaran, Laksman de Alwis, A. L.Britto Muthunayagam and Ronald Perera for respondent.
E D. Wickramanayake for petitioner in C. A. appln. 914/78.
K. N. Choksy with K. Kanag-lswaran, Laksman de AlwisA. L. Britto Muthunayagam and Ronald Perera for respondent.
Nimal Senanayake for petitioner in C. A. appln. 805/78.
K. Shanmugalingam for petitioner in C. A. appln. 912/78.
K. N. Choksy with K. Kanag-lswaran, Laksman de Alwis,
A. L. Britto Muthunayagam and Ronald Perera for respondent.
Cur. Adv. vult.
October 24, 1979VYTHIALINGAM, J,
Shortly after the present Government came to power, after the GeneralElections of May 1977, His Excellency the President of Sri Lanka byWarrants under the Public Seal of the Republic, appointed two one manCommissions under the Commissions of Inquiry Act (Cap. 393). OneCommission which consisted of the former Chief Justice of Sri Lanka
CA Mendis Fowzie & Others v. Goonewardena, G. P. A. Silva !Vythialingam, J.) 329
Mr. G. P. A, Silva was required to inquire into and report on whether, inthe course Of the administration, by the Counci or by any person appointedunder any written law, of the affairs of each of the twelve Municipalitiesspecified in the Schedule to the warrant, there had been —
incompetence
mismanagement
abuse of power
corruption
irregularities in the making of appointments of persons, or
contravention of any provisions of any written law
on the part of that Council or the person or persons aforesaid or of theMayor or Deputy Mayor or any other person or persons and if so, the personof persons responsible for the same and the extent to which they wereresponsible and to make recommendations with reference to any of theother matters that had been inquired into under the terms of the warrant.
The other Commissioner Mr. S. W. Goonewardena was appointed bya similar warrant in identical terms to inquire into and report on the con-duct of the administration of certain Urban Councils and towns otherthan Municipalities. Mr. G. P. A. Silva submitted his first interim reportdated 7th December 1977, the second interim report dated 30th March1978 and the Final report dated 5th June 1978. Mr. S. W. Goonewardenasubmitted his report dated 31st May 1978.
The Government thereafter passed Law No. 38 of 1978 and Law No.39 of 1978 imposing civic disabilities on certain persons specified in theSchedules to the two Laws and against whom findings had been made bythe respective Commissioners, The petitioners in these fifteen applicationswho are some of the persons named in the schedules and affected by thelaws have applied for writs of Certiorari to quash the findings of the twoCommissions relating to them, on the various grounds set out in their.respective petitions.
These fifteen applications and four others originally came up before aBench consisting of the President and Atukorale, J, As two questions of lawwere common to all the applications the Court directed that those twoquestions of law be argued as preliminary matters and accordingly thisBench of three judges was constituted. When these applications came up forargument it was found that in the case of four applications notices had notbeen served on the respondents or that some were noticed to appear onpublic holidays. We therefore directed that the notices be reissued andtook the four applications off the list-
330
Sri Lanka Law Reports
(1978-79) 2 Sri L. R.
The two questions of law which were set down for determination byus are whether
The reports and inquiries conducted by the two Commissionersunder the provisions of section 2 of the Commissions of InquiryAct can be reviewed or can be made the subject matter of reviewby this Court and whether they are amenable in whole or in part toa Writ of certiorari, and whether
In view of Laws IMos. 38 and 39 of 1978 the issue of a Writ ofCertiorari will in any event be futile ano accordingly whetherthis Court will in law issue the Writ in the exercise of its discretion.
Although the argument at the hearing ranged over a very wide field theseare the two matters which we are called on to decide and which we decideby this order and nothing more.
The main grounds of challenge are that the Commissioners failed toobserve the principles of natural justice and/or acted in excess of authorityand/or on the ground or errors of law on the face of the records. For thepurposes of determining the two issues of law I shall presume that theallegations in the several petitions are true and that on the basis of thoseallegations the respective petitioners are entitled to the issue of the writ ofcertiorari. It may be that, when each of the individual petitions are inquiredinto, the allegations may turn out to be baseless or that even if true theCourt will, on the facts and circumstances of the particular case, not issuethe writ. But at this stage and for this preliminary purpose they cannot bechallenged.
This is precisely what happened in the case of De Mel Vs. M. W. H. deSilva.^ The issue as to the amenability of a Commission appointed underthe very Act as in the instant case was referred as a preliminary issue to aDivisional Bench which held that it was competent for the Supreme Courtto issue the writ of Prohibition. But when the matter came to be inquiredinto before a single Judge it was held that the facts set out in the petitioner'saffidavit did not afford prima facie grounds for holding that the respondenthad divested himself of jurisdiction by reason of bias and the applicationwas accordingly refused (De Mel v. M. W. H. de Silva^.
In the case of Saif Ali Vs. Sydney Mitchel & Co. et al^ the plaintiffsued a solicitor who had represented him in an action which he had toabandon, for damages caused to him by the Solicitor's professional neglige-nce, The Solicitor issued a third party notice against the barrister who hadadvised him in regard to the filing of the action, claiming to be entitled tobe indemnified in respect of any damages payable to the plaintiff on theground that the Barrister had been negligent in advising who should be joinedas defendant to the plaintiff's claim and in settling the pleadings in accorda-nce with that erroneous advice.
CA Mendis Fowzie & Others v. Goonewardena, G. P. A. Silva (Vythialingam, J.)331
The Barrister applied for the third party notice and statement of claimto be struck out on the ground that they disclosed no reasonable cause ofaction. This was tried as a preliminary issue and the question was whethera Barrister enjoyed blanket immunity from a claim for damages in respectof all of his work or whether the immunity extended only to his conductof the case in court and to those matters of pre-trial work which were sointimately connected with the conduct of the case in court, that they couldfairly be said to be preliminary decisions affecting the way that casewas conducted when it came to a hearing.
The case ultimately reached the House of Lords where Lord Wilberforceafter stating the facts said at page 1036 "For the purposes of this appeal ithas to be assumed that the factual basis for those allegations (as set outabove) is correct, that there was some degree of negligence on the Barrister'spart as regards one at least of the three matters, that such negligence resultedin damage and that the Solicitors are entitled to indemnity or contributionfrom the Barrister. All these assumptions may turn out to be incorrect if thematter goes to trial, but cannot be challenged at this stage".
The respondent's contention is that under the Commissions of InquiryAct the two Commissions were only fact finding Commissions whose funct-ions were merely to inquire into and make a report on the matters referred toin the warrant and that they did not have any legal authority to determinequestions affecting rights of parties, in which case only, so it was argued, theywould be amenable to the writ jurisdiction of this Court. Quite naturallymuch reliance was placed on the oft quoted formulation of Lord Atkinin the case of R. v. Electricity Commissioners^ where he said "wheneverany body of persons having legal authority to determine questions affectingthe rights of subjects and having the duty to act judicially, act in excessof their legal authority they are subject to the controlling jurisdiction of theKing's Bench Division exercised in these writs".
In the case of Fernando v. Jayaratne^ Sharvananda, J. referred tothis passage as a "classic definition of the scope of the writ" and pointedout that "this definition has been approved in its entirety by the Houseof Lords, the Privy Council and by our Supreme Court". However LordAtkin'sdictum is not a general definition to be applied indiscriminately to allcases whatever the facts aniJ circumstances of the particular case may be.When one comes across a judicial formulation of a general legal principle itmust be remembered always that the judge has in mind only the limitedrange of contexts of the particular case in which the problem arises.
Lord Atkin was dealing in that case with a scheme formulated by astatutory body and which affected the proprietary rights of parties andLord Parker, C.J. pointed out in the case of Reaina v. Criminal InjuriesCompensation Board — Ex parte Lain^ that "The definition was no wider
332
Sri Lanka Law Reports
(1978-79j 2 Sri L. R.
than was necessary for the purposes of that case and was not in my judg-ment intended to be an exhaustive definition. H. W. R. Wade says "Canonicalthough these words are they require much interpretation. At almost everypoint they understate the true position, the scope of remedies being inreality substantially wider. For instance the language is not apt to includereview for error on the face of the record now a common ground for certioraribut one which courts had forgotten when Atkin, L. J. spoke". (Administra-tive Law 4th Ed. pp 332, 333).
S. A. de Smith states that "The proposition was cited with approvalin many subsequent' cases. However, it is neither uniquely authoritativenor self explanatory. In some situations it has offered a court uncertainguidance, in others it is unduly restrictive". (Judicial Review of Administra-tive Action 3rd edition S. 340). Over the years until comparatively recenttimes the courts had, owing to what Lord Reid says in Ridge v. Baldwin^was "a misunderstanding of a much quoted passage in the judgment ofAtkin, L. J." given a very restricted interpretation to those words. Thus"legal authority" was said to mean statutory authority, "rights" to meanlegally enforceable rights and the "duty to act judicially" to mean that theremust be a superadded duty to do so.
Moreover Lord Atkin's words were spoken in 1924 when the dangersof what Lord Hewart called "The new Despotism" were not quite so obviousor felt. Today there is proliferation of governmental or other bodies havingwide powers to make decisions, findings or determinations which may affectsubjects grievously and can inflict widespread damage and pain of mind andsuffering beyond measure. The powers exercised by such authorities are asmuch capable of abuse or misuse as the powers vested in statutory bodies.
This much was appreciated by Sharvananda, J. in Jayaratne's case (supra)when he said at page 130 "Arriving at a just decision is the aim of allinquiries of whatever nature. An unjust decision in an administrative inquiryin the context of a welfare state may have greater far-reaching effect than adecision in a quasi-judicial inquiry". To prevent this misuse and abuse ofpower by such bodies and to control and to keep them within their juris-dictions the courts have now, particularly during the last 25 to 30years, given toeach of these terms a wider meaning. Sharvananda, J. himself pointed thisout when he said at page 132 "These recent decisions have thus advanced thefrontiers of natural justice. To prevent abuse of power by administrativebodies courts are gradually evolving guidelines based on principles of naturaljustice, for the exercise of their powers". They did so for the purpose ofexercising their writ jurisdiction or to issue declarations and injunctions.
An examination of the process by which this has been done and to seehow Lord Atkin's formula has been modified is best done by considering eachof the four parts into which Slesser,L. j. divided it in the case of R Vs.LondonCounty Council, ^ namely
CA Mendis Fowzie S Others v. Goonewardena, G. P. A. Silva IVythialingam, J.j 333
that whenever any body of persons (1) having legal authority
to determine questions affecting therights of subjects, and
having theduty to act judicially
act in excess of their legal authority
they are subject to the controlling jurisdiction of the King's Bench Divisionexercised in these writs.
Having Legal Authority
In this context generally "legal authority" means statutory authority orauthority under the common law. But this has now been extended to includeacts of public authorities who are not vested with any power under any statuteor under the common law. In the case Ex parte Lain (supra) it was arguedthat the Criminal Injuries Compensation Board was not a body of personshaving "legal authority" in the sense of having statutory authority, as theBoard had been established by the executive in terms of a White Paperwhich had been adopted by Parliament. The Court of Appeal rejected thisargument and held that it had legal authority to act. Mr. Choksy pointed outthat the Court of Appeal's decision in that case was based on the fact thatthe Board had been set up by the executive in the exercise of the prerogativeand that therefore it had a legal basis.
Dealing with this aspect of the Court of Appeal's decision H. W. R. Wade(ibid) says "Prerogative power is properly speaking legal power which appert-ains to the Crown but not to its subjects . , . Although the courts often usethe term prerogative in this sense, they do not always do so. For example, theCourt of Appeal has described the administrative scheme for compensatingvictims of violent crime as established 'under the prerogative'. The schemewas set up by executive action without statutory authority and the compen-sation distributed by the Criminal Injuries Compensation Board (out ofmoneys ?oted by Parliament) consists technically of ex gratia payments.But anyone may set up a trust or other organisations to distribute moneyand for the government to do so involves no prerogative power; it onlyinvolves the liberty possessed by anyone who has the disposal of necessaryfunds. A true prerogative pdwer such as the power to declare war or tocreate a peer involves something which no subject may do" (pp. 204, 205).
The writ also has been held to be available against the proceedings ofUniversity disciplinary authorities not resting on any statutory basis — R vAston University Senate ex p. Roffey'^ . In that case the University itselfwas established by Charter under the Royal Prerogative. It is however un-necessary to consider this matter at length, because the two Commissionersin the instant applications undoubtedly had "legal authority". They were
334
Sri Lanka Law Reports
(1978-79) 2 Sri L. R.
appointed by the President under the.powers vested in him by statute andthe two Commissioners themselves exercised powers and functions vestedin them by the Act though their duty to investigate and report emanatedfrom their appointment by the President.
To determine questions affecting the rights of subjects
In view of the arguments addressed to us it is convenient to considerthis requirement under two heads — (a) To determine questions and (b)affecting rights of subjects. It was submitted that the Commissioners werevested with power only to inquire into and report on the matters set outin the warrant. It was argued that nowhere in the Act were they given powerto make findings or determinations. It was further submitted that the factthat the warrants required the two Commissioners to transmit before thespecified dates (later extended) their reports "setting out the findings of yourinquiries and your recommendations" or that in their reports the Commissio-ners themselves refer to their "findings" would not show that they werevested with any legal authority to make findings or determinations.
It would therefore be necessary to examine the provisions of the Actand the warrant to see what the Commissioners were empowered to do andthe nature of the inquiries and report they were required to make. Butbefore doing so one may be permitted a general observation. Under theCommissions of Inquiry Act even in the case of inquiries in the most generalterms, the terms "inquiry" and "report" necessarily implies the making offindings and decisions of some sort on relevant matters. For example, where acommission is required to inquire into the working of a particular departmentand to make recommendations for its more efficient functioning theCommi-ssioners would necessarily have to examine the present working of thedepartment and decide whether the methods employed were conduciveto its efficient functioning and then make recommendations for its impiove-ment.
Indeed in the case of Oalmia v. Justice Tendolkar^1^ S. R. Das, C. J.dealing with inquiries under the Indian Commissions of Inquiry Act pointedout at page 546 "An inquiry necessarily involves investigations into factsand necessitates the collection of material facts from the evidence adducedbefore or brought to the notice of the person or body conducting the inquiryand the recording of its findings in its report cannot but be regarded ancillaryto the inquiry itself for the inquiry becomes useless unless the findings of theinquiring body are made available to the Government which set up theinquiry".
Section 2(1) of our Act sets out that "Whenever it appears to theGovernor-General to be necessary that an inquiry should be held and infor-mation obtained as to —
CA _ Mendis Fowzie <S Others v. Goonewardena, G. P. A Silva (Vythialingam, J.) 335
the administration of any department of Government or of anypublic or local authority or institution; or
the conduct of any member of the public service; or
any matter in respect of which an inquiry will, in his opinion, bein the interests of the public safety or welfare,
the Governor-General (now the President) may, b- warrant under the PublicSeal of the Island, appoint a Commission of Inquiry consisting of one or moremembers to inquire into and report upon such administration, conduct ormatter"
In the exercise of this power commissions have been appointed toinquire into and report on matters ranging, inter alia, from the incidenceof ragging of freshmen in the University (Sessional Paper No. XI of 1975)and the circumstances in which an undergraduate in Peradeniya Campusof the University came to be shot by the Police (Sessional Paper No. 1 of1977) to whether any member of the Municipal Council of Colombo accep-ted or solicited or gave or promised to give, a bribe. De Mel v. M. W. H, deSilva. ^ All these commissioners did make findings or determinations onquestions which were relevant to their inquiry and report.
As Parker, J, said in the case of R. Vs. Statutory Visitors Caterham
"There must be a decision or determination" for the writ to be availableand an examination of the Warrants by which the two Commissioners wereappointed, the terms of which I have reproduced in the earlier part of thisjudgment, it is quite clear that the two Commissioners were enjoined todetermine whether in the course of the administration of any of the Councilsspecified, there had been 1 2 3
(1)incompetence, mismanagement, abuse of power, corruption,irregularities in the making of appointments of persons, or contra-vention of any provisions of any written law and if so
(2)the person or persons responsible for the same and
(3)the extent of their responsibility.
These are all questions for the determination of which the Presidentis empowered under the Act to appoint Commissions. The Commissionerswould have to collect and correlate the facts, assess and evaluate the evidenceand come to findings or determinations in respect of persons responsible forthe commission of the acts set out in (1) above and in regard to the extentof their responsibility. It is inconceivable how else they could make a report
336
Sri Lanka Law Reports
(1978-79) 2 Sri L. R
on these matters without coming to findings or determinations against personsresponsible for the same.
In regard to one at least of these matters namely, corruption in the senseof accepting or giving a bribe it was conceded that the Commissioners wouldhave to come to specific findings or determinations against persons. I failto see how in respect of the other matters also the Commissioners can makea report without comming to findings and determinations against the personsresponsible for the acts mentioned. There is no magic in the word 'report'.The question is whether some question is being determined to some person'sprejudice. It is of course possible for a Commission to be appointed toinquire into and report on matters in respect of which it would not benecessary for findings or determinations to be made against any persons.But this is not such a case.
Affecting rights of subjects
The main argument in the case has centred round the question as towhether these decisions or determinations "affect the rights of subjects". Itwas submitted that the decisions should either of their own force propriovigore, or as a necessary and integral part of a proceeding when complete,affect rights of subjects. It was argued that the decision must be a step ina statutory scheme existing at the time the decisions were made to affectrights. For this purpose while Mr. Choksy was not concerned with whetherone gave a restricted or wide meaning to the term "rights" Mr. Renganathansubmitted that rights here meant legally enforceable rights. It was argued thatnone of the findings or determinations of the two*Commissioners either oftheir own force or as a step in a statutory process affected the rights ofsubjects.
. One of the matters which the two Commissioners were required toinquire into and report was whether there had been corruption in the adminis-tration of the affairs of the Councils and if so, the person or persons respon-sible for the same. Corruption is wide enough to include bribery and in factthe M. W. H. de Silva Commission was appointed to inquire into the incidenceof bribery under this head. In that case the supervening legislation TheColombo Municipal Council Bribery Commission (Special Provisions) ActNo. 32 of 1949 applied only to that Commission. But now the Public Bodies(Prevention of Corruption) Act (Cap. 258) makes these provisions applicableto any Commission of inquiry appointed under the Act. So that if the twoCommissioners or either of them did make findings of corruption in thesense of accepting or giving of a bribe against any person who is a memberof a public body then in terms of the decisions of the Divisional Bench inDe Mel v. M. W. H. de Silva*1* (supra) the Commissioners would beamenable to the writ jurisdiction of this Court.
It was stated that neither of the Commissioners had made findings ofbribery against any such person. That may or may not be so. It may be that
CA Mendis Fowzie & Others v. Goonewardena, G. P. A. Silva (Vythialingam, J.) 337
even though there is no specific finding of bribery nevertheless the findingthat a person was guilty of corruption may necessarily imply that he wasguilty of bribery. These are matters which will have to be gone into whenthe facts and circumstances of each particular case are taken into considerationat the hearing into the respective applications. Here we are only concernedwith the law generally and not with the facts and circumstances of particularcases. So that on this ground alone the Commissioners would be amenableto the writ jurisdiction of this Court.
But it is necessary to deal with the position apart from this considerationas well. It was submitted that apart from the M. W. H. de Silva Commissionin which case legal effect affecting rights of subjects was given to its findingsby statute it had never been held that the findings of a Commission underthe Act affected rights of subjects. For one thing the fact that it had neverbeen done does, not necessarily mean that it cannot ever be done. I wouldin this connection quote with respectful approval the observations of LordDenning M. R. in regard to a similar argument in the case of Packer v.Packer (12) "What is the argument on the other side? Only this — thatno case has been found in which it had been done before. That argumentdoes not appeal to me in the least. If we never do anything which has notbeen done before we shall never get anywhere. The law will stand still whilstthe rest of the world goes on and that will be bad for both".
For another, much depends on the facts and circumstances of eachcase and it will be necessary to examine the decisions in each of those casesrelied on. In the M. W. H. de Silva case Gratiaen, J. in making the referenceto a Divisional Bench said that if matters had stood in this way, that is with-out the supervening legislation the functions which the respondent wascharged could not properly have been described as judicial or quasi-judicialfunctions over which this Court could exercise any controlling jurisdiction.And in the Divisional Bench Wijeyawardena, C. J. said "It is true that therespondent is not expected to make any order in his report affecting the legalrights of the petitioner."
But this was conceded by Counsel for the petitioner and there wastherefore no argument or consideration of the question at all. It was arguedthat Counsel of the eminence of the late Mr. H. V. Perera, Q.C. would nothave made such a concessioryif it were otherwise. But it was not necessary forhis purpose to make any submissions on this question as his main argument inthe case on which he succeeded, was that in view of the subsequent legislationthe respondent's functions had become judicial or quasi-judicial functions.Indeed Wijeyawardena, C. J. himself pointed out that it was unnecessaryfor the Commissioner to make any report affecting the rights in view ofthe subsequent legislation. I do not therefore find the observations in thatcase to be a satisfactory guide for the determination of the issues in theseapplications.
338
Sri Lanka Law Reports
(1978-79) 2 Sri L. R.
The next case relied on was the case of N. Q. Dias v. C. P. G. Abeywar-denaJ^ In that case a writ of Prohibition was sought against a Commissionerappointed under the Act to inquire into alleged unlawful interception oftelephone messages and to make a report inter alia, as to the persons responsi-ble for such unlawful interception or by or to whom the contents of messagesso intercepted were divulged, on the ground of bias. The application wasrefused on the ground that the Commissioner's findings would have nolegal effect on the rights of persons against whom findings were made.
The basis for the decision was stated by H. IM. G. Fernando, S. P. J.as follows: "Let me suppose that the Commissioner in the instant easemakes a- report in which is contained a determination that X interceptedcertain telephone messages at the instigation of Y and divulged the contentsof the messages to Z. There is literally nothing in the Commissions of InquiryAct by reason of which a determination can create, affect or prejudicethe rights of X, Y or Z. Even though the finding which the Commissioneris required to reach according to his terms of reference is that a personunlawfully intercepted a telephone message, that finding would not be madein terms of the Telecommunication Ordinance, under which the functionof determining whether there has been such unlawful interception is commit-ted solely to the ordinary Courts."
In other words, if a person against whom a finding is made by the Com-missioner that he unlawfully intercepted a telephone message, then if theperson is charged in a Court of law in respect of that offence that findingwould not be proof that he was guilty. It is for the Court to arrive at a verd icton the evidence led before it. It is the same as when the Principal Collector ofCustoms elects which of two penalties he will impose on a person whoviolates the Customs Ordinance. The election by itself does not affect therights of the individual concerned. It is only when he is sued for the amountthat his rights would be affected and then he would have a full opportunityto place his case before Court – Jayawardena v. Silva^4^
Similarly the position is the same when the Commissioner of. InlandRevenue grants leave to an inspector to raise an assessment on being satisfiedthat there are reasonable grounds for suspecting loss of tax resulting fromneglect, fraud or wilful default. At that stage the assessee has no right to beheard, for when the assessment is made he can appeal against it and raise ailmatters which he could have raised at the earlier stage, for Parliament didnot require a plurality of hearings – Pearl berg v. Varty(^.
For as Lord Reid observed in Wiseman v. 8orneman(16) "It is, I think,not entirely irrelevant to have in mind that it is very unusual for there tobe a judicial determination of the question whether there is a prima faciecase. Every public officer who has to decide whether to prosecute or raiseproceedings ought first to decide whether there is a prima facie case but noone supposes that justice'requires that he should first seek the comments of
CA .Mendis Fowzie & Others v. Goonewardena, G. P. A. Silva (Vythtalingam, J.) 339
the accused or the defendant on the material before him". However it wasrepeatedly pointed out in that case that the fact that a decision is only thata prima facie case has been made out is not itself a reason why both partiesshould not be heard. It is a significant factor and would depend on the factsand circumstances of the particular case.
Reliance was also placed on an observation made by H. N. G. Fernando,C. J. in the case of* In Re Ratnagopal(17). In that case the respondent wasfined for contempt of a Commissioner appointed under the Act in that herefused to be sworn and to answer questions. The main issue in that case wasas to whether the appointment of the Commissioner was ultra vires the powerconferred by the Act. The Supreme Court held that it was not ultra vires. Inthe course of his judgment H. N. G. Fernando, C. J. said at page 422 "Sincethe objection of ultra vires has to be rejected for the reasons above stated, it isnot necessary to state my reasons for agreeing with certain other answers tothe objections which Crown Counsel also submitted. One such answer wasthat the purpose of the Commission which is merely to inquire into andreport on certain matters, does not involve the exercise of judicial or quasi-judicial functions or even of executive power; that being so, any failure ofthe Commission to duly carry out its purpose is a subject for complaintto the Governor-General and not to the Courts". In the circumstances Icannot regard this observation as an authoritative decision that in every casea Commission appointed under the Act does not make findings or decisionswhich affect the rights of subjects. In an appeal to the Privy Council itwas held that the appointment was ultra vires. But the Privy Council saidnothing about this observation of H. N. G. Fernando, C. J. – (Ratnagopalv. The A. G.(18)
The last of the local cases under the Act relied on by the respondentsand one which was the subject of much comment and discussion at theargument was that of Fernando v. Jayaratne^8^. In that case a Commissionwas appointed under the Act to inquire into and report oij the activities ofthe Fisheries Corporation and inter alia, on whether any employee haddirectly or indirectly by any act, omission or neglect of duty, impropriety ormisconduct caused any loss to the Corporation and if so, the extent of theloss so caused. In his report the Commissioner made certain adverse findingsagainst the petitioner in respect of his work as an employee and held that"the responsibility for the loss to the Corporation on the basis of furtherconstruction of the cold roorfi or rooms to make up for the shortfall whichmight exceed' Rs. 500,000/- would have to be shared between Mr. EricFernando (the petitioner) and Mr. Dias Abeysinghe".
Thereafter the petitioner's employment with the Corporation wasterminated "inasmuch as the Board of Directors of the Corporation have,in view of the adverse findings contained in the respondent's report lostconfidence in the petitioner". The petitioner moved the Supreme Courtfor a Mandate in the nature of a writ of Certiorari to quash the findings of
340
Sri Lanka Law Reports
(1978-79) 2 Sri L. R.
the Commissioner as the findings against him constituted the cause of unjusti-fiable and premature termination of his services and on the ground that the ruleof natural justice of audi atleram partem had been violated. The SupremeCourt refused the application holding that the Commissioner was underno duty to act judicially, and that its decision though it affected thepetitioner "grievously" did not affect any rights of his.
In so far as the decision of the Supreme Court that no rights of thepetitioner in respect of his employment with the Corporation, were affected,is concerned, it was if I may say so with great respect, correct and unexcep-tionable. The petitioner's employment with the corporation was on acontractual basis and the relationship was one of master and servant. Hisrights in respect of his employment were under the contract and none other.Under the contract it was terminable on three month's notice or on paymentof three months' salary in lieu of such notice. Admittedly he had been paidthree months' salary in lieu of notice and his services had been terminated interms of his contract. The termination could have been for any reason ornone at all. So that the question as to whether the reason stated by theCorporation was right or wrong was immaterial. If there was a breach ofcontract the petitioner could have sued for damages. There the matter shouldhave ended.
The law in regard to this was clarified by Lord Reid in Ridge v.Baldwin’ ' (supra) where he said at page l, "The law relating to masterand servant is not in doubt. There cannot be specific performance of acontract of service and the master can terminate the contract with his servantat any time or for any reason or for none. But if he does so in a mannernot warranted by the contract he must sue for damages for breach of contract.So that the question in a pure case of master and servant does not at alldepend on whether the master has heard the servant in his own defence".
This question arose d irectly in the case of the University Council of TheVidyodaya University et al v. Linus Silva (20). It was there held that ateacher who had an appointment with the University is in the ordinarylegal sense a servant of the University. It was not therefore open to him tocontend that in terminating his appointment the University Council werebound to act judicially and should therefore have given him an opportunityto be heard after being made aware of the grounds upon which thetermination of his appointment was to be considered. It was held by thePrivy Council that in the circumstances the remedy of certiorari was notvailable to such a teacher.
In that case Lord Morris of Both-y-Gest pointed out that the Houseof Lords had approved the dissenting judgment of Jenkins, L. J. in theCourt of Appeal in Vine v. National Dock Labour Board(21) in the courseof which he said "But in the ordinary case of master and servant therepudiation or the wrongful dismissal puts an end to the contract and the
CA _ Mendis Fowzie <8 Others v. Gaonewardena, G. P. A. Silva (Vythialingam, J.)341
contract having been wrongfully put an end to, a claim for damages arises.It is necessarily a claim for damages and nothing more. The nature of thebargain is such that it can be nothing more". So that the petitioner had noright to his employment with the Fisheries Corporation and the adversefindings against him by the Commissioner cannot therefore be said to haveaffected any right of his.
However this was not the basis on which the judgment of the SupremeCourt proceeded in that case. Perhaps because of the way in which thecase was presented and argued Sharvananda, J. with whom Tennekoon,C. J. and Malcolm. Perera, J. agreed, went on to consider the meaningof the. term "right" in Lord Atkin's formulation and the question as towhether the Commissioner in that case had a duty to act judicially. Heheld that the "right" here meant a legally "enforceable right" for he saidat page 129, "The report of the respondent has no binding force, it is nota step in consequence of which legally enforceable rights may be created orextinguished".
In all the earlier cases referred to above this had been assumed andnearly all of them were decided before the decision in Ex parte Lain(6)(supra). Jayaratne's case (19) was the first case in which this decision wasconsidered. Sharvananda, J. rejected what he called the "gloss" on thewell known definition of Atkin, L. J. suggested by Ashworth, J. in thatcase "by omitting the words 'the rights of' so that the phrase in which thesewords occur would read 'questions affecting subjects' ". He stated also that"It is to be noted that the other two judges, i.e. Lord Parker and Diplock
J. did not associate themselves with Ashworth, J. in the suggestedrevision but went into the question whether the rights of subjects, predica-ted in Atkin, L. J's definition wera legally enforceable or justiciable rightsor not".
If I may say so with the utmost respect I think Sharvananda, J. wasmistaken in this. In a passage in his judgment in ex parte l_ain(6) whichhas since been often quoted Lord Parker, C. J. used precisely the samelanguage as Ashworth J. when he said, "We have as it seems to me reachedthe position when the ambit of certiorari can be said to cover every case inwhich a body of persons of a public as opposed to a purely private ordomestic character has to determine matters affecting subjects providedalways that it has a duty to act judicially. Looked at in this way the Boardin my judgment comes fairly and squarely within the jurisdiction of thisCourt". The words I have emphasised clearly indicate Lord Parker's agree-ment with the view expressed by Ashworth, J.
It is true that Diplock, L. J. did not go quite so far. But he was quiteliberal in finding a legal effect on rights. For he said at page 888 "Trueit is that a determination of the Board that a particular sum by way of
342
Sri Lanka Law Reports
<1978-79) 2 Sri L. R.
ex gratia payment of compensation should be offered to an applicant doesnot give the applicant any right to sue either the Board or the Crownfor that sum. But it does not follow that a determination of the Boardin favour of an applicant is without any legal effect upon the rights of theapplicant to whom it relates. It makes lawful a payment to an applicantwhich would otherwise be unlawful".
In the case of R. v. Criminal Injuries Compensation Board — Ex ParteTong(22) Wien, J. succinctly stated the ratio decided in that case as
follows, "where it was held that the Board was amenable to the
supervisory jurisdiction of the High Court exercised by certiorari in that itwas a body of persons of a public as opposed to a purely private character,having power to determine matters affecting subjects and a duty to actjudicially". Certiorari was refused on another ground. The Court of Appealhowever set aside the judgment and issued the writ.
In regard to the nature of the functions of the Board Lord Denning,
M.R. said in ex parte Tong(23) "There remains however the questionwhether this Court can interfere. Can it issue an order of certiorari so as toquash the decision of the Board refusing compensation and thus in effectsay that compensation should be paid? At one time there would havebeen much debate about this. The person who is injured by a crime ofviolence has no legal right to compensation. Any payment to him is exgratia. The Board's awards have no legal backing. They cannot be enforcedby law. They are in truth part and parcel of an administrative system.But now by a series of important decisions it has been held that the HighCourt has a supervisory jurisdiction over the Board which it can exercise byway of certiorari". He then went on to refer to these cases, but it isunnecessary for me to consider them.
The decision in this case is of great importance in determining whether"rights" here have to be legally enforceable rights. Here the Board refusedto make an award an the applicant had no right to receive any compensation.So that in this case it cannot be said that any right of the applicant wasaffected by the refusal. The decision cannot therefore be explained on thebasis of what Diplock, L. J, said in ex parte Lain that the right is affec-ted because the decision of the Board renders lawful a payment whichwould otherwise be unlawful. It can only be explained on the basis that thedecision affects subjects adversely as Ashworth, J. and Lord Parker. C. J.put it.
Then there are the licensing cases. At one time it was said that a licencewas a privilege and that a decision to grant or revoke such a licence wasnot a decision affecting rights — See Nakkuda ali v. Jayaratne (24) and RV, Metropolitan Police Commissioner Ex Parte Parker.(25) gut todayas Lord Denning, M. R. pointed out in R. v.- Gaming Board(26) "theyare no longer of authority for any such proposition," and Halsbuiy's Laws
CA Mendis Fotiaie T Others v. Goonewardena, G. P. A. SUva (Vythiatingam, J.) 343
of England 4th Ed. Vol. 1 para 83. Note 5 points out that the twodecisions are open to serious doubt."
The length to which the Courts are prepared to go in this regard isindicated by the decision in Reg. v. Liverpool Corporation ex parte TaxiFleet(27). In that case the Corporation sought to increase the numberof taxi cab licences without hearing the Fleet Operators' Association despitean undertaking that it would not do so without affording them an opportu-nity to be heard. The Association had no legal right which was affectedby the decision to increase the number of taxi cabs. Lord Denning saidat page 308 "It is perhaps putting it a little high to say that they are exercis-ing judicial functions. They may be said to be exercising an administrativefunction. But even so, in our modern approach they must act fairly, andthe court will see that they do so"
Then there is the case of In Re Pergamon Pres$(28). |n that case theBoard of Trade ordered an investigation under Section 165(b) of theCompanies Act into the affairs of a public company. The matter came upto the Court of Appeal by way of an appeal. But that makes no differenceas the Judges considered the functions and powers of the inspectors andconcluded that they had a duty to act fairly and so to give the partiesaffected a hearing. In regard to the functions of the Inspectors Lord Denn-ing said at page 539 "It is true, of course, that the inspectors are not a court
of law. Their proceedings are not judicial proceedings They are not
even quasi-judicial, for they decide nothing, they determine nothing. They
only investigate and reportThey do not even decide whether there is
a prima facie case"
Mr. Choksy submitted that the report in that case either of its ownforce or as a step in a statutory process affected rights. For he pointed outthat under the Companies Act it may expose persons to criminal prosecu-tions or civil actions, or bring about the winding up of the company orbe used itself as material for the winding up. But in dealing with the effectand repurcussions of the report Lord Denning pointed out in the samepage "But this should not lead us to minimise the significance of theirtask. They have to make a report which may have wide repurcussions.They may if they think fit, make findings of fact which are very damagingto those whom they name, They may accuse some, they may condemnothers, they may ruin reputations or careers." Then, after dealing with theconsequences which might flow under the Act he continued, "Seeing thattheir work and their report may lead to such consequences, I am clearly ofopinion that the inspectors must act fairly". He did not base this conclusionsolely on the consequences which could flow from the Act but on that aswell as the effect the report would have on the character and reputation ofthe persons concerned."
344
Sri Lanka Law Reports
(1978-79) 2 Sri L. R.
This is not something new. For much the same thing was said morethan a hundred years ago by Jesse), M. R. in the case of Fisher v. Keane (29That was a case in which the Committee of a private club expelled a memberfor alleged misconduct without giving him a hearing. In setting aside theirdecision Jessel, M. R. said at pages 362, 363 "They ought not as I under-stand it according to the ordinary rules by which justice should be admini-stered by committees of clubs or by any other body of persons who decideupon the conduct of others to blast a man's reputation for ever, perhapsruin his prospects for life without giving him an opportunity of defendingor palliating his conduct".
The two Commissioners in the present applications had to inquire intoand report on the question as to whether any of the persons specifiedwere guilty of incompetence, mismanagement, abuse of power, corruption,irregularities in the making of appointments of persons or contravention ofany provisions of any written law. The persons concerned were all publicmen, one a very important Minister in the former government who, atoneand the same time held the portfolios of Finance, Justice and Local Govern-ment, Mayors, Deputy Mayors and members of municipalities. Chairmen.Vice-Chairmen and members of other local bodies and public Officers.To them, more so perhaps than to others, their integrity, character andreputation are all important. Any adverse decision on those matters wouldundoubtedly affect their character, reputation and integrity, blast theirreputation for ever and ruin their future careers. So that apart from theloss of their civic disabilities under the two laws, the determination of thetwo Commissioners would grievously affect these persons, of their ownforce, proprio vigore.
The fact that findings and determinations made by Commissionersappointed under the Act may adversely affect persons is recognised by theAct itself. For section 16 provides that "every person whose conduct isthe subject of inquiry under this Act, or who is in any way implicated orconcerned in the matter under inquiry shall be entitled to be representedby one or more advocates or proctors at the whole of the inquiry; and anyother person who may consider that it is desirable that he should be sorepresented may, by leave of the Commission, be represented in the manneraforesaid". In the latter case the right to representation is at the discretionof the Commissioner. But in the former it is a right expressly conferred onsuch persons.
It was submitted that this section only gave the persons concerned aright to be represented and that if they did not choose to avail themselvesof the right there was nothing that anyone could do about it. It was arguedthat there was no duty cast on the Commissioners to notice them or toinform them that their conduct was being investigated. I regret I am unable toagree with this submission. Whatever the position may be in regard to thesecond category of persons, certainly in regard to the first category of persons
CA Mendis Fowzie & Others v. Goonewardena, G. P. A. Silva (VythiaHngam, J.) 345
the section indicates that there is a duty cast on the Commissioners to noticethe persons whose conduct is being inquired into as well as the persons whoare in any way implicated or concerned in the matter under inquiry and ofthe nature of the inquiries that are being made.
How else are such persons to know that they are the subject of inquiryand that adverse findings may be made against them? Newspapers may ormay not report such proceedings. Even if they do, the persons concerned maynot read them. Moreover the Warrant may include a direction as to whetherthe inquiry or any part thereof shall or shall not be held in public. In theinstant cases the Warrants do contain such a direction. Where such inquiry orpart of an inquiry is held in camera there is no way in which persons concern-ed can know that they are the subject of such inquiry and so avail themselvesof the right expressly conferred on them by the section.
In regard to this right to representation in a different context Weeraman-try, J. said in the case of Subramaniam v. Inspector of Police, Kankesantu-raj(30) "it needs little reflection to realise that the right we are here consider-ing is a many faceted one, not truly enjoyed unless afforded in -its many
varied aspectsHence the right does not mean merely that an accused
person is entitled in theory to be defended by a pleader but also that he mustenjoy all those concomitant privileges without Which the right is reduced to amere cypher" and "that the lack of effective opportunity for the exercise ofthe right which it assures should be viewed as a denial of the right itself". Oneessential requisite for the exercise of this right is that the person concernedshould be made aware that he is the subject of inquiry. If, of course, after hehas been afforded the opportunity to be represented he neglects to asserthis right to representation, he cannot thereafter complain about it. If there-fore the Commissioners or either of them had failed to notice such personsthat their'conduct was being inquired into or that they are concerned orimplicated in the matter under inquiry and/or failed to afford such personsthe opportunity to be represented then they would be amenable to theWrit jurisdiction of this Court.
This aspect of the matter or the effect of the findings or determinationson the character and reputation of the persons concerned did not receiveany consideration at all in the earlier cases because of the basic assumptionthat rights affected should be /egally enforceable rights and that there musti<2 addition, be a superadded duty to act judicially. But in Jayaratne'scase^)(Supra). Sharvananda, J. after quoting the observations of Lord Denning, M.R. in the Pergamon Press case ^8) which I have quoted above said at page130 "These observations are apposite to the report of a Commissionerappointed under the Commissions of Inquiry Act. He must come to hisconclusions by a process consistent with rules of natural justice after inform-ing the party of the case against him".
346
Sri Lanka Law Reports
(1978-79) 2 Sri L R.
At page 125 he stated that the petitioner had ". a real grievance
and has been affected grievously by the respondent’s admitted failure toobserve the principles of natural justice by affording the petitioner an oppor-tunity of contradicting or controverting the allegations against him before hemade his finding against the petitioner . . . On this aspect of the matter heconcluded by saying at page 130 “In the light of the above observations,in my opinion, the respondent has not acted fairly, according to law. Hehas failed to give the petitioner notice of the allegations against him and anopportunity of answering the case against him before he reported him tothe Governor-General. There was no due inquiry as far as the petitioner wasconcerned and hence the report made by the Respondent against the peti-tioner cannot have any value".
And yet he refused the application for the writ because no legally enfor-ceable right of the petitioner was affected and because the Commissionerhad no duty to act judicially, although he had a duty to act fairly andobserve the rules of natural justice. As Lord Parker, C.J. pointed out in
ex parte Lainf®) (supra) "I cannot think that Atkin, II. intended to
confine his principles to cases in which the determination affected rights inthe sense of enforceable rights." As Halsbury points out "The term rightsis to be understood in a very broad sense". (Laws of England 4th Ed. Vol. 1para 83.Note 5 ).
Rights in this case are not to be confined to the jurisprudential conceptof rights to which correlative legal duties are annexed. They comprise anextensive range of legally recognised interests the categories of which havenever been closed. They would include rights in property, personal liberty,status, immunity from penalties or other fiscal impositions, reasonableexpectation of preserving or even acquiring benefits (licences, monetaryawards) and interests in preserving one's livelihood or reputation. This is byno means exhaustive. As Lord Denning, M.R. pointed out in Schmidt v.Secretary of State for Home Affairs^) "It all depends whether he has someright or interest or I would add some legitimate expectation of which itwould not be fair to deprive him without hearing what he has to say".
In one Tasmaniam case R v, McArthur ex p. Cornish(32) which is referr-ed to in S. A. de Smith (Judicial Review of Administrative Action, 3rdEd. 157, Note 751 a Superintendent of Police who was empowered to orderlicencees to stop serving alcohol to a habitual drunkard on the basis of infor-mation supplied, issued orders in respect of C upon information supplied byC's wife. It was held that the order was void because C was denied the oppor-tunity to rebut the accusation. In other words, protection was given to theright to drink which could not be taken away without observing the principlesof natural justice. So that in the modern view of the matter if as Sharvananda,
J. did hold that the respondent was under a duty to act fairly and to observethe principles of natural justice and had failed to do so and his decision had"grievously affected" the petitioner it was eminently a case in which the writ
CA _Mendis Fowzie & Others v. Goonewardena, G. P. A. Silva (Vythiaiingam, J.J 347
of certiorari should have issued to get a finding, which had "no value" asagainst the petitioner, out of the way.
The respondents also placed great reliance on the decision in R v.Statutory Visitors St. Lawrences Hospital Caterham. ex parte Pritchard^
In that case the court refused to grant the remedy to quash a mere reportbeing the report of the visitors of a hospital as to the need for continueddetention of a mental defective. All they were required to do was to see thepatient, to ascertain the means of care and supervision which would beavailable if she was discharged, and to state whether in their opinion, thepatient was a proper person to be detained in her own interest in the insti-tution. They make no decision or determination in regard to this. They onlyexpress an opinion and make a recommendation. The power to order thecontinued detention rested in another body, the Board of Control, and forthis purpose they would take into consideration the opinion of the visitors.It was no more then a piece of evidence which they were required to obtain.They could take into consideration the report of another medical officer ifsuch was placed before them by the patient or guardian.
Moreover the Act itself differentiated between a mere report and adecision which the visitors had the power to make. This was pointed out byParker, C. J. at page 773. "Parliament itself has pointed out it seems to me,the contrast between the duties of the visitors under section 5(11) (2) whichis the case here and section 11(3). Section 11(3) is clearly dealing only withthe case of re-consideration when a patient comes of age and enables thevisitors to arrive at a decision. Parliament used the word 'decision' and thevisitors can order the discharge or the continued detention of the patient, andin the event of the latter decision there is a right of appeal to the board. Whenthey are acting under section 5(11) (3) the visitors are clearly coming to adecision, whereas under section 5(11) (2) all they have to do is to reportto the Board of Control whether in their opinion the defective is still a properperson to be detained in his own interests in an institution". The decisiontherefore cannot help the respondent as the report was merely an expressiorof opinion and does not affect the patient.
In contrast is the decision of the Supreme Court of India in the case ofA. K. Kripak v. Union of lndia(33), |n that case a selection board appointedfor this purpose prepared a list in order of preference for appointmentto the Indian Forest Service, 'in terms of the rules this list had to be sentto the Union Public Service Commission along with the recommendationof the Minister and the records of all other eligible officers of State. TheCommission would then forward its recommendations to the Government.The regulations provided that the officers recommended by the Commissionshould be appointed subject to the availability of vacancies in the State cadre.
It will be seen that virtually it was the Commission which selected officers forappointment and that the selection board's functions were purely recommen-datory and was not binding on the Commission which could base its findings
348
Sri Lanka Law Reports
(1978-79) 2 Sri L. R.
on the observations of the Minister and on a consideration of the records ofthe other eligible officers.
The petitioner challenged the selections made by the selection boardon the ground of bias of one of its members. It was held that bias wasestablished and the selection list was quashed. In dealing with the submissionthat the selection board was not required to decide about any right HegdeJ. pointed out at page 157 "Lookingat the composition of the board and thenature of the duties entrusted to it we have no doubt that its recommenda-tions should have carried considerable weight with the U. P. S. C." Great
weight was placed on the observations of Parker, C. J. in ex parte Lain(6) andthe passage in his judgment commencing with "With regard to Mr. Bridge'ssecond point I cannot think that Atkin, L. J. intended to confine hisprinciples to cases in which the determination affected rights in the senseof enforceable rights""was quoted in extenso.
Similarly also a report may be quashed if it is substantially a decisionrather than a mere recommendation, e.g. where the Act provides that it shallbe final — R v. London County Council ex p. Commercial Gas Co (34). |n thatcase an adverse report made by a Gas tester against a Gas company whichmight lead to an order against it by the local authority was quashed on theground that the Company had not been given an opportunity to commenton the report.
Mr, Choksy also cited several cases from other jurisdictions to show thatthe reports of similar commissions have been held to be mere reports andnot findings or determinations affecting rights. From India he referred toDalmia's case^O) (supra) Jaganath Rao v. State of Orissa(-35) an(j SammbuNath Jha v. Kedar Prasad Singha(36), the Australian case of Lockwoodv. The Commonwealth and others(37) and the decision of the Privy Councilin the Canadian case of W. F. Conor v. G. Waldron f 38).
In the three Indian cases as well as in the Australian case the questionfor decision was whether the bodies concerned were exercising judicialpower or not. For the challenge in those cases was on the ground of thevires of the Act itself or of the appointment of the bodies. For this purposethey had to examine the powers and functions of the bodies concerned to seeif they were performing judicial functions as a Court would. It was held thatthey were not because they had no authority to determine questions affectingrights in the way in which a Court decides. They were not concerned withthe question as to whether the bodies concerned had a duty to act judicially.
The two are entire'y different for the former is a special case ofthe latter. The term rights in the two cases would have different connotations.This distinction was clearly brought out by Rich, J. in the case of Rola Co.(Australia) Pty Ltd. v. The Commonwealth (39).where he said "it is
CA Mendis Fowzie & Others v. Goonewardena, G. P. A. Silva (Vythiatingam, J.) 349
important to remember that judicial power and power in the exercise ofwhich there is a duty to act judicially are two different things. The former isa special case of the latter. If a person is invested with power not to createlegal rights or to impose new legal duties or liabilities but to determine asbetween disputants whether one of them possesses, as against the other, somealready existing legal right to which he claims to be entitled or is subject tosome already existing legal liability to the other which the other is claimingagainst him, then not only when exercising the power, is he required amongother things to act judicially but the power itself is judicial power … On theother hand if he has no authority to determine the already existing legalrights or liabilities of persons but is empowered to impose on them newlegal duties or liabilities from which they were previously free or alter orabrogate legal rights to which they were previously entitled, his power isnot judicial, although in exercising it he may be, and commonly is, subjectto a legal duty to act judicially (that is, to observe the principles of naturaljustice)".
In the Canadian case a Commissioner appointed under the CombinesInvestigationsAct was sued for slander in respect of some derogatory remarkshe had made in his capacity as Commissioner. He took up the position thathe was entitled to absolute privilege as he was a judicial officer. It was heldthat he was not and that he was not protected by absolute privilege becausehe neither had the attributes similar to those of a court nor did he act in amanner similar to that in which such courts act, although he may beexercising functions which required him to act judicially. These decisionsare of no avail to the respondents as they deal with rights in an entirelydifferent context.
Reference was also made to the case of Allen Berry & Co. v. VivianBosef^O). That was also a case concerning the Dalmia Commission, JusticeTendolkar having died and Vivian Bose having been appointed in his place.
It is true that in that case it was held that the findings of the Commissiondid not affect rights of subjects. But that was on a consideration of thenature and scope of the powers of theCommission. In the original Dalmiacase(10)(supra) that part of Clause 10 which gave the Commission powerto recommend the "redress or punishment" which should be taken wasdeleted. What was left thereafter was "the action which in the opinionof the Commission should be taken to act as a preventive in future cases".So it was held that the Commission was only a fact finding commissionmeant "to instruct the mind of the government" in regard to futurelegislation.
Another argument that was put forward was that since the civic disa-bilities were imposed by Acts of Parliament passed subsequently it cannotbe said that the decision and determinations of the Commissions were partof a statutory scheme existing at that time to affect rights of subjects.Supportfor this submission was sought in the observation of Sharvananda, J. in
350
Sri Lanka Law Reports
(1978-79) 2 Sri L, R.
Jayaratne's case(19) where he said at page 128 “In deciding whether inmaking his report in terms of the Commission issued to him the respondentwas acting judicially, the test appears to be whether according to the statu-tory scheme the report has the probability or potentiality in law of affectingprejudicially the rights of individuals, by reason of the statutory schemeitself making it possible for the report to be the basis of affecting the legalrights or liabilities of a person to whom it relates
With great respect I am unable to assent to this proposition. Halsburypoints out that the writs "have sometimes issued to persons or bodies makingreports, recommendations, or preliminary decisions that acquire force onlyafter adoption or confirmation or other consequential action by anotherbody". And in note 9 to this para it is said "It seems that the orders (andparticularly prohibition) will issue more readily where the act in questionwill have effect subject to confirmation of its own force or is an integraland necessary part of a proceeding which will when complete have prejudicialeffects on the civic rights of individuals."
Mr. Choksy submitted that in the cases referred to in the Note therewas already a pre-existing statutory scheme where on confirmation oradoption the findings and determination could affect rights of subjects. Butthis need not necessarily be so. I would refer to the words "other consequen-tial action by another body". Such consequential action may be taken subse-quently and need not be in the contemplation of the statute at the time thedecision or determination was made. It would be sufficient if the subsequentconsequential action, in the present case the two laws imposing the civicdisabilities and the decisions or determinations when taken together clearlyshow that the latter was a necessary and integral part of the proceedings whichculminated in the affecting of subjects. It is of course necessary that it must bethe report itself which must be given effect to and not the findings or deter-minations of some other body or person.
In the instant cases these tests are satisfied. It is the findings and thedeterminations of the two Commissioners which are given effect to by theimposition of civic disabilities on some of the persons against whom thefindings have been made. No other person or body independently andon its own consideration, whether using the report as evidence or relevantmaterial, came to these findings. This is made quite clear by the Lawsthemselves. In the preamble it is stated that whereas the Commissionshad made certain findings against certain persons it had become neces-sary in the public interest to impose civic disabilities on the said per-sons and the laws were enacted.
Then civic disabilities are imposed on certain persons who are refe-rred to as relevant persons. Section 7 defines a relevant person as a personwhom the Commissions have found to have committed or to have aided orabetted the commission of any act constituting abuse of power, corruption,
CA Mendis Fowzie & Others v. Goonewardena, G. P. A. Si/va (Vythialingam, J.) 351
and irregularities in the making of appointments or to have contravened orto have aided or abetted in the contravention of any written law and meanseach person specified in the schedule to the Laws. It is quite clear that, ifthere had been no findings against these persons, they would not have beenincluded in the schedule, norwould civic disabilities have been imposed onthem. In these circumstances it would be highly artificial and unrealistic tosay that the findings and the determinations were not a necessary andintegral part of the proceedings by which their civic rights have been affec-ted. It is the findings and the determinations alone and nothing else whichhave attracted the civic disabilities.
I am satisfied therefore that in the case of the imposition of civicdisabilities the findings and determinations of the Commissions were anecessary and integral part of the proceedings which culminated in therights of subjects being affected, while in the case of the character andreputation the persons concerned have been affected directly by the veryforce, proprio vigore, of their decisions and determinations. It has beensubmitted that none of the petitioners have taken up the position thattheir character and reputations have been affected for the issue of thewrit. But I do not knew whether when the supervisory jurisdiction ofthis court is invoked on the ground of excess of jurisdiction or error oflaw on the face of the record, parties are limited to the matters raisedin their petition and affidavit, subject of course to the other side having suffi-cient notice. These are not pleadings in a civil cause or action. However,this is s matter which does not arise now but ought properly to be decidedwhen the individual applications are taken up.
Having the duty to act judicially
It is true that for very many years and until comparatively recenttimes it was assumed that in administrative law certiorari and prohibitionwould issue only in respect of judicial acts or administrative acts in theperformance of which the competent authority was under an expressor implied duty to act judicially or at least quasi-judicially. This wasperhaps due to the historical origin of the writs. At one time the writonly extended to an inferior court. Later it was extended to judicial orquasi-judicial acts, the courts being anxious to find a legal basis for inter-fering in administrative acts.
I
And there it rested for several years. Shortly after Lord Atkin had madehis formulation Lord Hewart, C. J. added what Lord Reid in Ridge v.Baldwin' ' called a “gloss" on the words and introduced a still furtherlimitaton on the type of the bodies to which the writs could go. In the case ofR. v. Legislative Committee of the Church Assembly 1 Lord Hewart, C. J.after referring to Lord Atkin's formulation said "It is to be observed that inthe last sentence which I have quoted from Atkin L. J. the word is not 'or'but 'and'. In order that a body may satisfy the required test it is not enough
352
Sri Lanka Law Reports
(1978-79) 2 Sri L. R.
that it should have legal authority to determine questions affecting the rightsof subjects, there must be super added to that characteristic the further-characteristic that the body has the duty to act judicially. The duty to act
judicially is an ingredient which, if the test is to be satisfied, must be present".
The Privy Council gave its authority to this "gloss" in the case ofNakkuda Ali v. Jayaratne^^ where Lord Radcliffe after quoting the lastsentence in the passage referred to above said "It is that characteristic whichthe Controller lacks in acting under Regulation 62.’' Indeed he went so far asto say that…. "the individual instances are now only of importance as illus-trating a general principle that is beyond dispute". In Fernando v. Jaya-ratne^®^ (supra) Sharvananda, J. seems to have adopted this test for he saysat page 130 "the judicial element which must be present before he can besubjected to the supervisory jurisdiction of this Court through the writ ofcertiorari is lacking". Earlier at page 126 he says "It is absolutely essentialthat the person or body to whom these writs are to go must be a judicialbody in the sense that it has the power to determine and decide questionsaffecting the rights of subjects. That this requirement is fundamental has beenemphasised in the leading cases of Nakkuda Ali v. Jayaratne^^ and Ridgev. Baldwin"/7^
If I may say so with great respect, at least as far as this requirement ofa superadded duty to act judicially is concerned, the two cases cannot standside by side. They are poles apart. In regard to Lord Hewart's gloss Lord Reidpointed out in Ridge v Baldwin^ (supra) at page 77 "If Lord Hewart, C.J.meant that it is never enough that a body simply has a duty to determinewhat the rights of an individual should be, but that there must always besomething more to impose on it a duty to act judicially before it can befound to observe the principles of natural justice then that appears to me to beimpossible to reconcile with earlier authorities". He then goes on to refer toten such earlier authorities and says "that is only a selection of the earlierauthorities".
In icgard to Nakkuda Ali's case Lord Reid said at page 80 "Ofcourse if it were right to say that Lord Hewart, C. J's gloss pn what LordAtkin stated is 'a general principle that is beyond dispute' the rest wouldfollow. But I have given my reasons for holding that it does no such thingand in my judgement the older cases do not illustrate any such general
principle – they contradict itSo I am forced to the conclusion that
this part of the judgement in Nakkuda Ali's case^^^ was given under aserious misapprehension of the effect of the older authorities and thereforecannot be regarded as authoritative”.
In Nakkuda Ali's case®^ the Privy Council did hold that the Controllerhad given the errant trader adequate notice of the proposed action and thereason for it and had given him the fullest opportunity of meeting the allega-
CA Mendis Fowzie & Others v. Goonewardena, G. P. A. Silva (Vythialingam, J.) 353
tions against him. So that in fact the principles of natural justice had beensatisfied and the petitioner had no cause for complaint. But quiteunnecessarily as it seems, the Privy Council went on to hold that theController in revoking the licence was only performing an administrative actand not acting judicially. Quite apart form the House of Lords, this part ofthe judgment has been widely criticised in other jurisdictions and by almostall academic writers on administrative law, though there have been a fewdefenders. I have referred to them all in the case of Dayaratne v. Bandara^^and I do not wish to repeat them here.
The effect of the observations in Ridge v. Baldwin^) was summarisedby Lord Denning M. R. in the Gaming Board case^®^ where he said "At onetime it was said that the principles only apply to judicial proceedings and notto administrative proceedings. That heresy was scotched in Ridge v.Baldwin".^ In planning decisions there had been very little use made of thewrit after the new act was passed and in the case of R v. Hillington (LondonBorough) ex parte Royco Homes Ltd.^®) Counsel suggested that this wasdue to the fact that people were under the impression that Lord Atkins'formulation required the additional characteristic that the authority shouldbe under a duty to act judicially. Accepting this as a possible explanationWidgery, C. J. said "Accordingly it may be that previous efforts to usecertiorari in this field have been deterred by Atkin L. J.’s reference to it beingnecessary for the body affected to have the duty to act judicially. If that is sothe reason for the reticence on the part of the applicants was, I think put anend to in the House of Lords in Ridge v. Baldwin".^
And finally in the case of R. v. Hull Prison Board of Visitors^)Widgery, C. J. said "One knows nowadays that it is not necessary to show ajudicial act in order to get certiorari but if the order is a judicial act it makesit that much easier to justify the making of the order". So that now "It isnot necessary to label proceedings "judicial','quasi-judicial','administrative','investigatory'; it is the characteristics of the proceedings that matter, not theprecise compartment or compartments into which they fall" — per Sachs,L. J in the Pergamon Press Case.^®^
The Courts have now found no difficulty over holding that certiorari is a
suitable remedy for unlawful administrative determinations of all kinds such
c
as a ministerial order taking over a school for wrong reasons and in breach ofnatural justice — Maradana Mosque Trustees v. Mahmud the making ofa rating list on wrong principles — R. v. Paddington Valuation Officer(46)refusal of permission for entry by an immigration officer on wrong grounds— R. v. Chief Immigration Officer<47) and refusal of a certificate of consentfor a gaming club without a fair hearing — R. v. Gaming Board(26) and thatprohibition will be granted to restrain a licensing authority from actingunfairly — R. v. Liverpool Corporationand to prevent a local authorityfrom licensing indecent films – R. V. Greater London Council^®'. All these
354
Sri Lanka Law Reports
(1978-79) 2 Sri L. R.
were purely administrative matters, mostly concerned with questions ofpolicy and involving no judicial element in the strict sense.
As Lord Parker, C. J. pointed out in Ex Parte Lain ^ at pages 357 & 358"The position as I see it is that the exact limits of the ancient remedy by wayof certioriai have never been and ought not to be specifically defined. Theyhave varied from time to time being extended to meet changing conditions . . .The only constant limits throughot were that itwas performing a publicduty".The truth is that in the modern view and on a correct analysis the duty to actjudicially is not a characteristic which is superseded but simply a corrollary, theautomatic consequence, of the authority to determine questions seriouslyaffecting subjects in some right, interest, status, standing in society or somelegitimate expectation. Where there is any such power there must be the dutyto act judicially. If Sharvananda, J. meant only this when he said at page 126in Fernando v. Jayaratne^®^ that "It is absolutely essential that the person orbody to whom these writs are to go must be a judicial body in the sense that ithas power to determine and decide questions affecting the rights of subjects"
I would respectfully agree as it is in accord with both principle and precedent.Our disagreement would then only be in regard to the restricted meaning hehas given to the term "rights" as meaning legally enforceable rights.
The extensions of the right to interfere, to bodies performing functionswhich affect the interests of individuals, other than judicial, has been done byresorting to the more flexible notion that in such cases there was a duty to actfairly. In the modern concept therefore the duty to act judicially meansnothing more than the duty to act fairly that is to say by observing the rules ofnatural justice. As Hedge, J. pointed out in A. K Kripak v. Union of India^^(supra) at page 154 "The requirement of acting judicially in essence is nothingbut a requirement to act justly and fairly and not arbitrarily or capriciously.
In the second part of his judgment Sharvananda, J. said . . . "that while‘here may be no duty to act judicially, it does not follow that there is no dutyto act fairly by observing the principles of natural justice". Pei haps he wasinfluenced in this by what Lord Radcliffe said in the Nakkuda Ali case(24)that "Can one not act reasonably without acting judicially?" Sharvananda,J. then went on to refer to the more important recent decisions in which theduty to act fairly had been referred to and concluded that the Commissionerhad a duty to act fairly by observing the rules of natural justice as his deter-mination "grievously affected the petitioner". I would respectfully agree withthese decisions and with the conclusion that the Commissioner had a duty toact fairly by observing the rules of natural justice.
All that remained was to determine what exactly was the fairness requiredin the particular case. This would depend entirely on the facts and circums-tances of each case for as Tucker, L. J. pointed out in Russel v. Duke ofNorfolk^®) "The requirements of natural justice must depend on the circums-
CA Mendis Fowzie & Others v. Goonewardena, G. P. A. Silva tVythiaiingam, J.) 355
tances of the case, the nature of the inquiry, the rules under which the tribunalis acting, the subject matter to be dealt with and so forth". And Lord Parker,C, J. observed In Re H. K. (An Infant)^^ "That is not, as I see it, a questionof acting or being required to act judicially, but of being required to actfairly and to the limited extent the circumstances of any particular case allow andwithin the legislative framework within which the administrator is working,only to that limited extent do the so-called rules or natural justice apply whichin a case such as this is merely a duty to act fairly". So that whenever acomplaint is made before a court that some principle of natural justice hadbeen contravened the court has to decide whether the observance of that rulewas necessary for a just decision on the facts of the case.
I would hold therefore that the two Commissioners had a duty to act judi-cially in the sense of having to act fairly by observing the rules of naturaljustice in the sense I have indicated. To sum up therefore the two Commissio-ners had legal authority to determine questions affecting seriously the reputa-tion and character of the persons specified as well as their rights and therefore,had a duty to act fairly by observing the rules of natural justice and that theyare amenable to the writ jurisdiction of this Court. I would accordingly answerthe first question for our decision in the affirmative.
In this connection there are two other arguments which were put forwardthough without much enthusiasm. These two submissions arise from the factthat our writ jurisdiction is statutory and is contained in Article 140 of the
Constitution, the relevant portions of which are as follows:— "Subject to theprovisions of the Constitution the Court of Appeal shall have full power
and authority …. to grant and issue according to law orders in the nature of
writs ".Similar power was given to the Supreme Court by the Courts
Ord inance.
The first submission is that the word "other person" should be readejusdem generis with the other words and when so read our jurisdiction toissue the writs is confined to courts in the strict sense. It is true that deSampayo, J. expressed the opinion in the case of the Field General CourtMartial'' 1 that the ejusdem generis rule applied in regard to section 42 of theCourts Ordinance which is the same as Article. But the other two judgesexpressed no opinion on this matter and secondly that at that time theSupreme Court had no power to issue the wirts of quo warranto as this powerwas only given to it in 1920 by Ordinance IMo. 4 of 1920. In the case ofDankoluwa Estates Co. Ltd. v. The Tea Controller^^ Soertsz, J. expressed asimilar opinion.
But in the case of Thassim v. Edmund Rodrigo(53) a Bench of fiveJudges rejected this view. In that case after pointing out that writs of quowarranto and Mandamus issue to persons not exercising judicial power Howard,C. J. said at page 127 "In my opinion it is clear that the Legislature intendedthat although the general words follow particular words, the general words are
356
Sri Lanka Law Reports
(1978-79) 2 Sri L. R.
to be construed generally". This argument was also rejected by the PrivyCouncil in the IMakkuda Ali case^24' where Lord Radcliffe said at page 460"The reference to the writs of Mandamus and quo warranto certainly make itdifficult to suppose that only Courts of justice as ordinarily understood are tobe subject to these mandates". I hold therefore that the ejusdem generis ruledoes not apply in this case.
The second argument was that the words "according to law" in the articleshould be interpreted to mean "our law” and that if it is English law it is therelevant law of England as it was at that time. As far back as 1873 in regardto a similar provision in the Courts Ordinance.it was held that "According tolaw" meant "according to English law"^4^. The prerogative wirts wereunknown to our common law and Lord Radcliffe pointed out in IMakkudaAli(24) that "when Sec. 42 gives power to issue these mandates according tolaw it is the relevant rules of English common law that must be resorted to inorder to ascertain in what circumstances and under what conditions the courtmay be moved for the issue of the prerogative writ". I have indicated byreference to English cases and our cases what the relevant law is.
Would the issue of the writ be futile?
The second question reserved for our decision is as to whether in view of thepassing of Laws Nos. 38 and 39 of 1978 imposing civic disabilities on thepersons specified in the schedules the issue of the writs would be futile? Thisargument only affects the position as far as the imposition of civic disabilitiesare concerned and does not affect the position as far as the character andreputation of the said persons are concerned. Every person has a right to theinviolability of his character and reputation and if it is in any way assailed hehas the right to sue for damages. If the law gives any authority power to makedecisions and determinations affecting a person's character and gives thatauthority immunity from being sued in respect of it, then that authority incoming to such decisions and determination must act fairly by observing therules of natural justice. If that authority does not do so then as Lord Denning
M.R. caid the Courts will see that it does so by using its writ jurisdiction. If thewrit is issued and the decision or determination is quashed then the person'scharacter and reputation would be cleared and the issue of the writ would notbe futile.
1
In regard to the imposition of civic disabilities it is argued that thequashing of the decisions would be of no avail as the disabilities have alreadybeen imposed and the laws cannot be challenged in any way or in any forum.The issue of the writ would not therefore have the effect of restoring the civicrights. In this sense it was argued that the issue of the writ would be futile. Itis true that certiorari is a discretionary writ and this Court will not issue thewrit if it would be futile to do so. It is also true that the quashing of thefidings will not restore the civic rights to the persons affected. However, if the
CA Mendis Fowzie & Others v. Goonewardena, G. P. A. Si/va (Vythialingam, J.) 357
decisions against a person is quashed he could whenever the necessity arisestake up the position that he is not a 'relevant person' within the meaning ofthe two laws because then there would be no finding by the Commissionsagainst him and this is one of the requisites of the definition of a relevantperson. In this sense too the issue of the writ would not be futile.
In this connection reliance was placed on the case of Bennetv. Chappeland another^^where the declaration was refused on the ground that itwold be futile to do so. In that case the plaintiff desired to acquire a tract ofland from Yateley Parish Council and the matter was put to a poll of theentire parish and plantiff was outvoted by a large majority. He asked for adeclaration that the decision was invalid on the ground that the poll was notcorrectly taken. In the meantime however another poll was taken correctlywith the same result. The Court held that it would be futile to declare thefirst poll invalid because the Council had after a correct poll alreadytranferred the land to some other authority. The facts are therefore completelydifferent from the facts before us.
I would therefore answer the second question that it would not be futilefor the Court to issue the writ and that it would be open to this Court toissue the writ in any case in which the facts and circumstances warrant it.
Calling in question the validity of the Laws
It was submitted that by issuing the writs this Court would be questioning thevalidity of the two Laws and that this is prohibited by Article 80(3) of thepresent Constitution. This article is as follows "Where a Bill becomes lawupon the certificate of the President or the Speaker as the case may be beingendorsed thereon no Court or tribunal shall inquire into, pronounce upon orin any manner call in question, the validity of such acton any ground". It isof course immaterial for this purpose whether this Article or the provisions ofthe 1972 Constitution apply, for there is similar provision in that Constitu-tion in Article 48(2) which is as follows: "No institution administering justiceand likewise no other institution or person or authority shall have the poweror jurisdiction to inquire into, pronounce upon or in any manner call inquestion the validity of any law of the National State Assembly".
The argument isf that thg Imposition of Civic Disabilities Laws are basedupon the Commissioners' findings the correctness of which has been acceptedby Parliament and that this is made clear by the Preamble to the Laws. Thereport is the basis of the legislation, it is said. The effect of a writ of Certio-rari will be to quash and thereby render void the reports. It is submitted thatthis would be both directly and indirectly to call in question the validity ofthe Laws, becuase the Laws assume and are based upon the fact that thereports are in all respects valid reports. So it is said that the issue of the writswould violate Article 80(3) of the present Constitution and Article 48(2) of
358
Sri Lanka Law Reports
(1978-79) 2 Sri L. R.
the 1972 Constitution. At least the Court Would be doing indirectly what itis prohibited from doing directly namely, from in any manner calling in ques-tion the laws.
The laws impose civic disabilities by section 2 on "every relevant person"and section 7 defines "a relevant person” as meaning a person who has beenfound by any report of the two Commissions to have committed or aided orabetted in the commission of any of the acts specified therein and means eachperson specified in the Schedule to the Laws. Both conditions have to besatisfied if the civic disabilities are to be imposed on any relevant person. Infact the Preamble states that the Laws have been passed as the Commissionshave made c-rtain findings against certain persons and that it has becomenecessary to impose civic disabilities on the said persons in the public interest.
If there are no findings by the Commissions against such persons theywould not be relevant persons to whom the laws would apply. Similarly if thefindings against any person are quashed by means of a writ of certiorari thenthe law would not apply to such person. This involves construction andapplying the laws and does not touch the question of the validity of the lawsin any manner whatsoever. The distinction between the two should be kept inmind. Thus Lord Reid said in British Railways v. Pickin^®^ "The function ofthe Court is to construe and apply the enactments of Parliament. The courthas no concern with the manner in which Parliament or its officers carryingout its standing orders perform these functions. Any attempt to prove thatthey were misled by fraud or otherwise would necessarily involve an inquiry
into the manner in which they had performed their functions" This is
not being done here.
In that case one ground of plaintiff's action was that in obta-ining theenactment of a certain section in a private Act the defendants had fraudu-lently concealed certain matters from Parliament and its officers and therebymisled Parliament into granting them this right. It was held that the Courtshad no power to examine proceedings in Parliament in order to determinewhether the passing of an Act had been obtained by means of any irregularityor fraud. Here it is not contended for the petitioners that the National StateAssembly had been misled into passing these laws. Nor is there any attack onthe validity of the laws or any of its provisions. All that is asked for is thatthe finding and determinations of the two Commissions be set aside on thegrounds urged. This only means that if the findings against any person aie setaside then the laws will not apply to any such person.
In Pickin's case^®' there is reference to an old case M'Kenzie v. Stewartin which a person succeeded in obtaining an Act of Parliament for the sale ofcertain property and for certain debts with which the property was alleged tohave been charged to be paid out of the proceeds. These debts were fictitiousand the person concerned had practised a fraud on Parliament. The Scottish
CA Mend is Fonzie & Others v. Goonewardena, G. P. A. Silva (Vythialingam, J.) 359
Courts held that Parliament had held that debts were true debts and that theycould not find to the contrary. But the judgment was reversed by the Houseof Lords. In dealing with the effect of this case Lord Reid said at page 617"The operative provision was 'to pay and discharge the said sum ofRs. 51,350 Merks Scots or £ 2582. 15s. 6d. Sterling with which the saidpremises stood then charged and incumbered as aforesaid with the arrears ofinterest'. This is I think easily susceptible of the construction that if therewere no sums with which the premises were encumbered then there wasnothing to pay off. There was no direction to pay off anything exceptincumberences and if there were no incumberences the direction had nooperative effect".
Here too the position is the same. If there are findings and determina-tions by the Commissioners then the laws will apply. If not they will not. TheNational State Assembly did not adopt and embody the findings and deter-minations in the laws. Nor did it prohibit the findings and determinationsbeing challenged in Court. It could have easily done so by making the findingsand determination final and conclusive or that they cannot be challenged in aCourt of law or otherwise. Nor did it take away the writ jurisdiction of thiscourt in respect of the findings and determinations of the two Commissioners.The right of a citizen to have recourse to the Courts can only be taken awayby express enactment or by necessary implication. There is, here, no suchexpress enactment or necessary implication.
The respondents relied on certain observations in the House of Lords inthe case of Minister of Health v. Regem ex parte YaffeJ^ln that case LordDunedin said at page 346 "If therefore the scheme as made conflicts with theAct it will have to give way to the Act. The mere confirmation will not saveit. It would be otherwise if the scheme had been per se embodied in asubsequent Act, for then the maxim to be applied would have been posterioraderogant prioribus" and that the confirming order had the effect of an Act ofParliament and therefore could not be attacked. "In other words, proceedingsby way of certiorari were impossible." This is not ip conflict with what I haveexpressed for the scheme as embodied in the Act becomes part of it. Herethere is no such thing in regard to the findings and determinations of theCommissioners.
It was argued that the fact that the persons against whom the civicdisabilities are imposed are nai<bed in the Schedules as persons against whomfindings and determinations had been made have been embodied as part ofthe laws and that if these findings and determinations are quashed then itwould have the effect of taking such persons out of the schedules and in thatsense it would be questioning the validity of the Act. It is quite obvious thatthe intention of Parliament was not to give validity to the findings of theCommissioners by placing the names of these persons in the schedule. If thatwas so there was no need to define a relevant person as a person againstwhom findings had been made and whose names are in the Schedules. It
360
Sri Lanka Law Reports
(1978-79) 2 Sri L R.
would have been quite enough to say that a "relevant person" means a personwhose name appears in the schedules.
The two Commissioners were asked and did make findings againstpersons in respect of six matters. Parliament did not intend to impose civicdisabilities on all the persons against whom findings were made. If that wereso it would not have been necessary to name any persons in the schedules.Parliament's intention was to impose disabilities only on some of the personsagainst whom findings had been made in respect of four out of the sixmatters. So it became necessary to specify these persons in the Schedulesagainst whom there were findings. It does not mean that Parliament namedthe persons in the Schedules on whom civic disabilities were to be imposed.But it stipulated at the same time that there must be valid findings againstthem and that they should also be named in the Schedules.
The persons who are referred to in sections 4 & 5 must definitely bepersons against whom there are findings. They are not named in theSchedules. If there are no findings against them or if the findings against anyof them are quashed then the laws will not apply to them. The Laws remainvalid and of full force and effect. For these reasons I am of the view that inissuing the writ of certiorari this Court could not in any manner be ques-tioning the validity of the Laws passed by Parliament. It would only be aquestion of construction and application of the laws which is essentially andtraditionally a function of the Courts.
I hold therefore that the Commissioners are amenable to the writjurisdiction of this Court and it would not be futile on the grounds urged forthe Court to issue the writs. The several applications will now be fixed forargument for the determination of the question as to whether on the factsand circumstances of any particular case the writ should issue or not.
ABDUL CADER, J.
The facts are set down in the judgment of my brother, Vythialingam J., whichI have read. In the case of Durayappah v. Fernando^*^ Lord Upjohn statedas follows: —
"In their Lordships' opinion there are three matters which must alwaysbe borne in mind when considering whether the principle should beapplied or not. These three matters are: First what is the nature of theproperty, the office held, status enjoyed or services to be performed bythe complainant of injustice. Secondly in what circumstances or uponwhat occasions is the person claiming to be entitled to exercise themeasure of control entitled to invervene. Thirdly when a right to inter-vene is proved what sanctions in fact is the latter entitled to impose uponthe other."
CA Mendis Fowzie & Others v. Goonewardena, G. P, A. Silva (Abdul Cader, J.l 361
In the case of Jayawardene v. Silva/^ the court referred to the dictum withacceptance and went on "to consider the third of the matters which TheirLordships in the Durayappah case^®^ regarded as of importance in decidingwhether the principle audi alteram partem does or does not apply, namelywhat sanctions the authority is entitled under the Statute to impose upon thecomplainant of injustice."
The Privy Council decision of this case is reported as Jayawardene v.Silva in 73 NLR 294^^ wherein Lord Guest stated as follows: —
"In their Lordships' view the Supreme Court rightly held that the propertest for deciding whether the function performed by a tribunal such asthe Collector was quasi-judicial is to be found in the case of Durayappahv. Fernando
In Fernando v. Jayaratne,^1^ Sharvananda J and two others held:—
"the Writ does not lie inasmuch as an examination of the provisions ofthe Commissions of Inquiry Act does not show that the report of theCommissioner was intended to be a step in a process which may in lawhave the effect of altering the legal rights or liabilities of persons namedin the report."
"The only power that the Commissioner has is to inquire and make areport and embody therein his recommendations. He has no power ofadjudication in the sense of passing an order which can be enforcedproprio vigore, nor does he make a judicial decision. The report of therespondent has no binding force; it is not a step in consequence of whichlegally enforceable rights may be created or extinguished."
Prior to these cases, there had been the case of De Mel v. de Silva ^wherein Gratiaen J., stated as follows:—
"Learned Counsel for the petitioner concedes, I think, that if mattershad stood in this way the function with which the respondent wascharged could not properly have been decsribed as judicial or quasi-judicial functions over which this Court could exercise any controllingjurisdiction. Whatever other remedy may or may not have been availableto a person who claims to be dissatisfied with the procedure adopted bythe respondent in executing his commission, an application for a writ inthe nature of prohibition or certiorari would not have been appropriatefor the purpose of challenging that procedure.
"Learned Counsel submits, however, that although this is the legalposition in cases where a person normally acts as a Commissionerappointed by the Governor-General, supervening legislation which has
362
Sri Lanka Law Reports
(1978-79) 2 Sri L. R.
come into operation since the date of the respondent's appointment hasaltered the scope of his status and functions. Before the respondententered upon his investigation of the matters on which he was requiredto submit his report to the Governor-General, Parliament passed theColombo Municipal Council Bribery Commission (Special Provisions)Act, No. 32 of 1949. Section 5 of the Act provides as follows:—
(Section 5 is reproduced)
"It is argued for the petitioner that by reason of this subsequent legisla-tion the respondent's functions, in so far as they are directed towards theinvestigation of the question whether any particular Municipal Councillorhas acted corruptly in a manner contemplated by section 5 of the Act of1949, have in truth become judicial or quasi-judicial functions in view ofthe statutory consequences which would inevitably arise from thepublication 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 affectingthe rights of subjects' (per Atkin L. J. in R. v. Electricity Commiss-ioners^^)., and that a writ of certiorari or a writ of prohibition maytherefore issue from this Court should it be established that the respon-dent has either exceeded his so-called 'jurisdiction' or, in exercising that'jurisdiction', violated in someway the fundamental principles of naturaljustice."
And Wijewardena C. J. stated in the same case: —
"It is true that the respondent is not expected to make any order in hisreport affecting-the legal rights of the petitioner. It is, in fact, renderedunnecessary in view of section 5(1) of the Colombo Municipal CouncilBribery Commission (Special Provisions) Act No. 32 of 1949, which statesin clear terms that the Governor-General "shall" cause the finding to bepublished "as soon as may be" in the Gazette if the finding is adverse tothe petitioner, and that on such publication the petitioner should besubject to the disqualifications set out in that section. An adverse findingof the Commissioner, therefore, results necessarily in affecting the legalrights of the petitioner."
In Dias v, Abeywardene*13* H. N. G. Fernaido, S. P. J., quoted his approval
of the decision in De Mel v. de Silva^ and distinguished that case from the
case before him as follows:-
"What rendered the Commissioner in that particular case amenable tosuch a Writ was the important additional circumstance that specialsupplementary legislation enacted by Parliament provided that a findingof the Commissioner that a person had been guilty of bribery would havethe effect of depriving such a person of his civic rights. On that ground
CA Mrndis Fowl in & Others v. Goonewardena, G. P. A. Silva lAbdul Cader, J.J 363
the Commissioner was held to have 'legal authority to determine a ques-tion affecting the rights of persons and having the duty to act judicially."
He went on further to say—
"Even if the report of the Commissioner in this case were to be published,it'would not, in the absense of any supplementary legislation, be prooffor any purpose that X or Y or Z had (in the example I have taken) doneany act found by the Commissioner to have been done by him."
These were some of the important cases that had decided the law asapplicable in Ceylon in respect of writs of certiorari and prohibition. It was inthis state of the law that our present Constitution was enacted.
Counsel for the petitioner referred us to the development of the law inEnglish Courts as regards writs of certiorari especially since 1967 which havebeen discussed at length in the judgment of Vythialingam J., and submitted
that we should apply those principles in this case. Counsel for the respondentreferred us to Article 140 of the Constitution which empowers this Court tcissue writs of certiorari "according to law" and submitted that the "Law"referred to is the law that had been adopted by the Courts of this country upto the promulgation of this Constitution.
I find it difficult to accede to this request of Counsel for the respondentsfor the reason that in this age of fundamental rights and human dignity, it isimportant that we should not close our windows to the liberal opinion nowgaining ground in England which is, after all, the home of origin of thevarious writs referred to in Article 140. I agieewith the view expressed by mybrother that the new principles that have been outlined in the latest decisionsof English courts should be applied in appropriate circumstances in thiscountry, too. I quote from R. v. Hull Prison Board of Visitors^) whereLord Widgery CJ stated:
"One must start this question of whether certiorari will or will not gowith a recognition of the fact that there is not, and one may hope neverwill be, a precise and detailed definition of the exact sort of order whichcan be subject to certiorari. If we ever get to the day when one turns upa book to see what the limiteof the rights of certiorari is it will mean thatthe right has become rigid, and that would be a great pity. Therefore, weapproach it today, in my judgment, on the basis that there are no firmboundaries, and one has to look to such clear, useful and helpful pointersas, with the assistance of counsel, we have been able to derive from theauthorities.
Let us look, first of all, at the arguments for certiorari going on thefacts of this case. One looks at the circumstances and one visualises theboard of visitors sitting very much like a bench of magistrates, one
364
Sri Lanka Law Reports
(1978-79) 2 Sri L. R-
would think, and the applicant prisoner standing before them. With thatmental picture, one can say it looks as though this is a case for certiorari.Instinctively one would think that this would be within the category towhich the order applies.
That is reinforced by the view, which I hold at any rate, that the actwhich the board of visitors perform under this jurisdiction is a judicialact. One knows nowadays that it is not necessary to show a judicial actin order to get certiorari, but if the order is a judicial act it makes it thatmuch easier to justify the making of the order. I should have thoughtthat there was no question but that this was a judicial act for presentpurposes.
Thus fortified, I would go next to the House of Lords decision inRidge v. Baldwin^because this is in a sense where the modern approachto certiorari is to be found. There is one passage in Lord Reid’s speech towhich I would like to refer. He is dealing with the well known passage ofAtkin LJ in R. v. Electricity Comrs, ex parte London Electricity JointCommittee Co.*4* Lord Reid said:
"The matter has been further complicated by what I believe to be amisunderstanding of a* much quoted passage in the judgment of Atkin,L. J., in R. v. Electricity Comrs.*4*He said: "The operation of the writs(of prohibition and certiorari) has extended to control the proceedings ofbodies which do not claim to be and would not be recognised as, courtsof justice. Whenever any body of persons having legal authority to deter-mine questions affecting the rights of subjects, and having the duty to actjudicially, act in excess of their legal authority, they are subject to thecontrolling jurisdiction of the King's Bench Division exercised in thesewrits. A gloss was put on this by Lord Hewart, C. J. in R. v. LegislativeCommittee of the Church Assembly"*4**
Then he went on to deal with the facts of that case which are of nointerest to us here, and came to a few words of Salter J. Lord Reid said inR. v. Electricity Comrs*4*
'SALTER, J., put it in a few lines: "The person or body to whomthese writs are to go must be a judicial.tbody in this sense, that it haspower to determine and decide, and the power carries with it, of nece-ssity, the duty to act judicially. I think that the Church Assembly has nosuch power and, therefore, no such duty.'*4**
Then he went on to deal with Lord Hewart CJ's gloss again, and I leave thatpassage unread, and go on to the passage where he said:
'I have quoted the whole of this passage because it is typical of whathas been said in several subsequent cases. If Lord Hewart, C. J.,
CA Mendis Fowzie & Others v. Goonewardena, G. P. A. Silva (Abdul Cader, J.)365
meant that it is never enough that a body simply has a duty to determinewhat the rights of an individual should be, but that there must always besomething more to impose on it a duty to act judicially before it can befound to observe the principles of natural justice, then that appears tome impossible to reconcile with the earlier authorities.'
Hence, as I say, I approach this on the footing that the board of visitors havea judicial task to perform and proceed to perform it.
I also proceed to a conclusion on this question keeping very much inmind what was said in one of the more recent cases in this Court concernedwith the availability of certiorari, and that is the case which first recognisedthat the Criminal Injuries Compensation Board was subject to control in thiscourt by the prerogative orders. The case is R. v. Criminal Injuries Compensa-tion Board, ex parte Lain/®^ and the passage I want to refer to comes in thejudgment of Lord Parker C. J where he said:
"The position as I see it is that the exact limits of the ancientremedy by way of certiorari have never been and ought not to bespecifically defined. They have varied from time to time, being extendedto meet changing conditions. At one tirhe the writ only went to aninferior court. Later its ambit was extended to statutory tribunalsdetermining a lis inter partes. Later again it extended to cases wherethere was no lis in the strict sense of the word, but where immediate orsubsequent rights of a citizen were affected. The only constant limitsthroughout were that the body concerned was under a duty to actjudicially and that it was performing a public duty. Private or domestictribunals have always been outside the scope of certiorari….
I mention that particularly because, if one wanted encouragement toextend the scope of certiorari, one could hardly find a more powerfulphrase to constitute that encouragement than the one which I have justread."
When one examines the warrants issued to the 2nd respondent, it is quiteclear that the findings of the two Commissioners cannot by themselves haveany legal consequences in the manner described in the various local judgmentsthat I have referred to above. But certain legal consequences have now over-taken the petitioner as a result of the enactment of Laws 38 and 39 of 1978.
In the case of M. W. H. de SilvaJ1^ sanctions came from a separate pieceof legislation, namely, the amendment of the Bribery Act. Similarly, Laws 38and 39 of 1978 are also a separate piece of legislation by which sanctionshave been imposed on the petitioners in these proceedings. As H. N. G. Fer-nando, S.P.J. stated in Dias v. Abeywardena^^ case, "it was because ofthe important additional circumstance that the Commissioner was held tohave legal authority to determine a question affecting the rights of persons
366
Sri Lanka Law Reports
(1978-79) 2 Sri L. R.
and having the duty to act judicially" that a writ issued in the case of De Melv. de Silva.***In other words, in De Mel v. Silva,*** sanctions became automa-tic to the findings of the Commissioner because the amendment to theBribery Act had been made before the Commissioner gave his findings,whereas in this case, the sanctions have been imposed after the findings of thetwo Commissioners. In my humble view, this distinction makes no difference.What matters is that punishment had occurred as a result of the findings ofthe two Commissioners. I realise that in Fernando v. Jayaratne**®* sanctionshad overtaken the petitioner in the form of dismissal when the pctitioneimoved the court. In that case Sharvananda, J., stated as follows:—
"Thus, it would appear that a person conducting an inquiry culminatingin nothing more than'an advisory report or recommendation is hardlymaking a determination of a question affecting the rights of subjects.However, if the report or recommendations form an integral and nece-ssary part of a statutory process or scheme which may terminate inaction adverse or prejudicial to the rights or interests of individuals thewrit of prohibition or certiorari will lie against it."
It has to be noted that in that case, the petitioner was a public servant, whowas given due notice before his services were terminated, though the termina-tion was the direct result of the report. Under these circumstances, it was notnecessary for the Court to consider the effect of subsequent imposition ofsanctions on the petitioner. In these proceedings, as a direct result of thereports, sanctions have overtaken the petitioners. The sanctions were imposedby statutory process, which adopts the reports for that puipose. Could it notbe then said that the recommendations have now turned out to be, thoughthey were not at the time the reports were submitted, a step in the piocess,integral and necessary, culminating in the denial of civic i ights?
In the cases of Rex v. Electricity Commissioners*4* quotedbySharvananda,J., it is stated as follows:—
"the Commissioners were prohibited from proceeding with an inquiryinto a matter outside their province, in spite of the fact that no schemethat the Commissioners were empowered to make could take effect untilconfirmed by the Minister of Transport and then approved by bothHouses of Parliament. In objecting to- the issue of prohibition theAttorney-General contended that the Commissioners came to no decisionat all and that they acted as advisers and merely recommended an orderembodying a scheme to the Minister of Transport who might confirm itwith or without modification and then the Minister had to submit theorder so confirmed or modified by him to the Houses of Parliamentwhich may approve it with or without modifications and that until theorder is so approved nothing is decided. Atkin L.J. in rejecting thatargument said: "In the provision that the final decision of theCommissioners is not to be operative until it has been approved by the
CA Mendis Fowzie & Others v. Coonewardena, E. P. A. Silva (Abdul Coder, J.)367
two Houses of Parliament I find nothing inconsistent with the view thatin arriving at that decision the Commissioners themselves are to actjudicially and within the limits prescribed by Act of Parliament and thatthe Courts have powers to keep them within those limits. It is to benoted that it is the order of the Commissioners that eventually takeseffect; neither the Minister of Transport who confirms, nor the Houses ofParliament who approve can, under the statute, make an Older which, inrespect of matters in question, has any operation. I know of no authoritywhich compels me to hold that a proceeding cannot be a judicialproceeding subject to prohibition or certiorari because it is subject toconfirmation or approval even where the approval has to be that of bothHouses of Parliament."
It would appear to lend support to the petitioners in this case. The reports ofthe Commissioners have formed the basis of the two Laws 38 and 39 of 1978,more or less in the manner of the approval of the findings of the Commiss-ioners. It is significant that one of the Commissioners has recommended thevery penalty that the Legislature imposed, namely, deprivation of civic rightsCounsel for the respondents urged that the report of the Commissionerscontain merely findings and that is the term used in the two Laws, too, andtnat these findings can be "determination" for writ to issue only whensanctions attach to the findings. That is the view that appears to have beentaken in the English cases cited before us and I accept that submission. ButI differ from Counsel that the sanctions should be present at the time of thefindings. To the best of my recollection, no cases were cited to us wheresanctions were imposed by legislation subsequent to the findings. I have cometo the conclusion that inasmuch as sanctions have begun to operate pursuantto the findings, the various requirements outlined in the Durayappah case^®®^have been established and the Commissioners are amenable to the writ prayedfor. I
I have so far discussed the question on the basis that sanctions overtookthe petitioners from outside. But I agree with Vythialingam, J. that "apartfrom the loss of their civic disabilities under the two Laws, the determinationof the two Commissioners would grievously affect these persons of their ownforce proprio vigore" and that "rights are not to be confined to the jurispru-dential concept of rights to which correlative legal'duties are annexed" whichmeans in other words that the Reports of the two respondents in these peti-tions contain within them sanctions as would make the Commissionersamenable to the writ. I take the view that this principle is applicable only inappropriate circumstances, depending on the severity of the effect on thesubject. When I questioned Mr. Renganathan in what manner the petitionerscOuld rehabilitate their reputation if writ procedure was not available,Mr. Renganathan urged that it could be done by way of an action for a dec-laration. But I find that in the case of Attorney-General v. Chanmugam'^®®^the Attorney-General contended that a District Court has no jurisdiction todeclare null and void the findings of a Commissioner on any grounds whatso-
368
Sri Lanka Law Reports
(1978-79) 2 Sri L. R.
ever and he conceded that the plaintiff may have applied to the SupremeCourt to quash the proceedings by way of certiorari if there had been a viola-tion of the principles of natural justice. This argument would be valid even incases where certiorari will not issue. It would, therefore, appear that relief topetitioners by way of a declaration is a matter of doubt. It behoves, there-fore, on this court to jealously safeguard the rights of the petitioners whosereputation has been assailed if it had been done without giving them anopportunity to defend themselves or to put forward their points of view byplacing evidence and/or by explaining evidence which had been led againstthem which could take a different character as a result of the explanation.After all, the petitioners in this case are men of public importance and goodrepute is a very important armour in their fight for survival in public life.I should think that to this class of persons good repute is even more impor-tant than money or land, and, therefore, if a finding of a Commissioner whichleads to loss of property can become " a determination" within the meaningof Lord Atkin's definition, it is even more important that the findingsaffecting reputation should equally be termed "a determination."
am fully, in agreement with the conclusions of my brother in respect offutility and Article 80(3) of the Constitution. The two laws define a rele-vant person as follows: —
" 'relevant person' means a person who has been found by any report
of the Commission of Inquiry referred to in this Law-
fa) to have committed or to have aided or abetted in the commission of
and act constituting—
abuse of power,
corruption,
irregularities in the making of appointments;
(b) to have contravened, or to have aided or abetted in the contraven-tion of, any provisions of any written law,
and means each person specified in the Schedule to this Law,"
This would mean that before any party can be deprived of his civic rights, itmust be proved that (1) there is a finding against him and (2) his nameappears in the schedule to the Bill. Mr. Victor Perera, the petitioner in S.C.Application No. 789/78, was not a person against whom there was a findingby the Commissioner, Mr. Gunawardena, but, nevertheless, his name appearsin the schedule. The latter filed an affidavit dated 26th October, 1978, thathe did not hold an inquiry against the petitioner and "the reference made tothe petitioner in paragraph 2 of my report to Mr. Victor Perera is a mistake."
It would be open to Mr. Perera to contend that he is not a person in
respect of whom paragraphs (a) and (b), quoted above, would apply, and.
CA
Bandaranaike v. Premadasa
369
therefore, one of the two ingredients has not been, proved against him.Similarly, it should be possible for another petitioner to contend that thefinding by the report of the Commission of Inquiry should be a legal finding.We are not concerned in these proceedings whether that petitioner wouldsucceed in his contention. All that.is necessary in these proceedings is tosatisfy us that such a contention is possible at the appropriate hearing.
therefore, agree with the order made by Vythialingam, J.
ATUKORALE, J.
I agree with the judgment of Vythialingam, J.
Preliminary questions of law held on and case sent for further hearing.