MOHAMED ISHAK V. MORAIS

006-SLLR-SLLR-1996-1-MOHAMED-ISHAK-V.-MORAIS.pdf


CA
Mohamed Ishak v. Morais
145
MOHAMED ISHAKV.
MORAIS
COURT OF APPEALWIGNESWARAN, J.
C. A. APPLICATION 812/95.
15 DECEMBER, 1995 AND 19 JANUARY, 1996.
Certiorari and Prohibition – Suspension of Kuchchaveli Pradeshiya Sabha -Pradeshiya Sabhas Act, No. 15 of 1987, section 185 (2), (3) and section 185(3) (a) (i), (ii) and (Hi) read with section 2(1) of the Provincial Councils(Consequential Provisions) Act, No. 12 of 1989- Jurisdiction of Inquirer -Fair Trial – Venue – Language.
Kuchchaveli Pradeshiya Sabha (KPS) is situated in Nilaveli in theTrincomalee District within the North East Province. It was constituted underthe provisions of the Pradeshiya Sabhas Act, No. 15 of 1987 and Petitionerwas its Chairman at the relevant time. At the elections of March 1994 theUnited National Party secured 5 seats, the Sri Lanka Muslim Congress 3seats and the Sri Lanka Freedom Party one seat. It commenced work on4.4.1994. By a letter dated 10.5.95 written in Tamil the Commissioner ofLocal Government of the North East Provincial Council (2nd Respondent)called for explanation from the Petitioner (Chairman of KPS) on certainmatters and why steps should not be taken under section 185(2), (3) of theAct No. 15 of 1987. The petitioner answered the queries by his letter dated
to the 2nd Respondent. By letter written in English dated 9.6.95said to bear theTrincomalee post mark 30.6.95 and received by the Petitioneronly on 5.7.95 the Governor of the North East Provincial Council (3rdRespondent) directed the Petitioner to submit his explanation personally atan inquiry to be held on 24.7.1995 and show cause as to why the 3rdrespondent should not take action against the Petitioner and all othermembers of the Sabha in terms of section 185(3) (a) (i), (ii) and (iii) of Act,No. 15 of 1987. However without responding to the reply sent by thePetitioner dated 13.6.1995 to the 2nd Respondent and before Petitionercould appear on 24.7.1995 as directed by the 3rd Respondent’s letter dated
the 3rd Respondent by letter dated 26.6.95 suspended thepetitioner and other members of the KPS in terms of the provisions of section185(3) (a) (i), (ii) and (iii) of Act, No. 15 of 1987 read with section 2(1) of theProvincial Councils (Consequential Provisions) Act, No. 12 of 1989. Even ifthe Petitioner's reply dated 13.6.1995 was found to be (as alleged)unsatisfactory no call was made on the petitioner to explain further.
146
Sri Lanka Law Reports
(1996) 1 Sri L.R.
Meanwhile on 30.4.95 (that is even before the 2nd respondent’s letter of10.5.95) the 2nd respondent had initiated steps to have a suitable retiredjudicial officer appointed to inquire into the alleged maladministration andby letter 26.6.95 the 1st respondent (a retired judicial officer) was appointedas the Inquiring Officer.
The petitioner and other elected members were notified by the 1 st respondentby his letter dated 3.7.95 that he intended holding an inquiry in terms ofsection 185(2) of Act, No. 15 of 1987 on 24.7.95 at 2.30 p.m. in the Colombooffice of the 3rd respondent. Proceedings appeared to have been on sevendates thereafter, the last date being 31.10.95.
Meanwhile on or about 27.7.95 the petitioner filed an application for writs ofCertiorari and Prohibition and for a stay order in Provincial High Court of theNorth East Province holden at Trincomalee and the matter is still pending.The petitioner and four other members of the KPS had taken objection to theproceedings initiated by the 1st respondent and the 1st respondent hadmade order on 31.10.95 rejecting the preliminary objections and fixing inquiryfor 21.11.95.
On 21.11.95 the present application was filed by the petitioner in the Courtof Appeal for Certiorari quashing the order of 31.10.95 and for a writ ofprohibition against the 1st respondent and for a stay order. No interim orderwas made but mero motu the 1st respondent postponed inquiry pendingthe determination of the application by the Court of Appeal.
The questions raised for determination of the Court of Appeal were:
The propriety of holding inquiries outside the limits of the North EastProvincial Council.
The right of the petitioner to have the proceedings conducted in the TamilLanguage which was his mother tongue.
Fear of political reprisals outside the territorial limits of the North EastProvincial Council.
Inquiry in Colombo casts a shadow.
Should the inquiry have been laid by pending determination of petitioner’sApplication to the High Court?
Time Limit to conclude the inquiry.
CA
Mohamed Ishak v. Morais (Wigneswaran, J.)
147
Held:
It being admitted that the dispute between the parties arose within theterritorial limits of the North East Provincial Council, the inquiry shouldhave been held within the territorial limits of the North East Provincial Councilunless parties consent or there were considerations outweighing the rulewhich should then have been brought to the notice of the 1st petitioner bythe 1st and/or 3rd respondent, and the petitioner should then have beenheard on any objections he may have. Further the 3rd respondent is theprosecutor who had caused the charges to be framed against the petitionerand therefore actively interested in the result. Holding of an inquiry in theprosecutor’s office is likely to overawe the defence and to place the conductof the defence at a disadvantage.
The party against whom the charges have been preferred had a right tohave it heard in Tamil as it was their mother tongue. The conduct of theproceedings in English and not in Tamil deprived the petitioner of a fair trial.Further the conduct of proceedings in a language not known to the partiesputs them at a disadvantage.
Witnesses in favour of the defence would not venture to travel to Colomboin view of political reprisals.
Although the location of the inquiry will not affect the impartiality of theinquirer still the location can adversely affect the psychology of the petitionerand his witnesses which in turn can affect the result of the inquiry anddeprive the petitioner of a fair trial.
In deference to the High Court of the North East Province the inquiry mustbe laid by.
The requirement to deliver the order in 3 months in section 185 of the ActNo. 15 of 1987 is directory and not mandatory.The petitioner having delayedthe inquiry by taking various objections cannot complain of the transgressionof the temporal span.
APPLICATION for writs of Certiorari and Prohibition and for stay of furtherproceedings by the 1st respondent.
S. Mahenthiran for Petitioner,ft Manikkavasagar for 2nd and 3rd Respondents.
Cur. adv. vult.
148
Sri Lanka Law Reports
[1996] 1 Sri L.R.
13 March, 1996.
WIGNESWARAN, J.
The Petitioner who is the elected Chairman of the KuchchaveliPradeshiya Sabha and a member of the United National Party hassought:
a mandate in the nature of a writ of Certiorari quashing theorder dated 31.10.95 made by the 1st Respondent.
a mandate in the nature of a writ of Prohibition on the 1stRespondent from proceeding to determine matters pertaining tothe Kuchchaveli Pradeshiya Sabha in Colombo.
an interim order staying further proceedings in respect of thematters before the 1 st Respondent.
The facts briefly are as follows:-
Kuchchaveli Pradeshiya Sabha is situated in Nilaveli in theTrincomalee District within the North East Province.
It was constituted under the provisions of the Pradeshiya SabhasAct No. 15 of 1987 (certified on 16.4.87).
The Petitioner was at the relevant and material time the electedChairman of the Kuchchaveli Pradeshiya Sabha hereinafter referred toas “KPS”.
Elections were held in March 1994 and the United National Partysecured 5 seats, the Sri Lanka Muslim Congress 3 seats and the SriLanka Freedom Party 1 seat. “KPS” commenced work on 4.4.1994.The petitioner was Chairman, one A. Ameen was Vice Chairman andthere were seven other elected members.
The second respondent is the Commissioner of Local Governmentof the North East Provincial Council.
The third respondent presently holds the office of Governor NorthEast Provincial Council.
CA
Mohamed Ishak v. Morais (Wigneswaran, J.)
149
By letter dated 10.5.95 in the Tamil Language and marked as P2by the petitioner, the 2nd respondent called for explanation from theChairman, KPS, Nilaweli on certain matters. P2 queried as to whysteps should not be taken in terms of section 185(2). (3) of Act No. 15of 1987 abovesaid. By P3 dated 13.6.1995 the queries were answeredand forwarded to 2nd respondent by the petitioner. The statement ofobjections filed by the 2nd and 3rd respondents confirm the receipt ofP3 in reply to P2. (Note:- Contents of paragraphs 6 and 7 of the peti-tion admitted in para 2 of the statement of objections).
By P4 dated 9.6.95 (said to bearTrincomalee Post mark 30.6.95and said to have been received by petitioner only on 5.7.95) the 3rdrespondent sent a letter similar to P2 to the petitioner but in the Eng-lish language with the difference that the petitioner was directed tosubmit his explanation personally at an inquiry to be held on 24.7.1995(and show cause) as to why the 3rd respondent should not take actionagainst the petitioner and other members of the Sabha in terms ofSection 185 (3) (a) (i), (ii) and (iii) of Act, No.15 of 1987.
Without responding to the reply (P3) dated 13.6.1995 sent to2nd respondent and without waiting until 24.7.1995 for the per-sonal appearance of the petitioner at the inquiry to respond to P4
(which though allegedly was received only on 5.7.95 by the petitioner)the 3rd respondent by P5(A) to (H) dated 26.6.95 suspended the peti-tioner and all other members of the Kuchchaveli Pradeshiya Sabha interms of the provisions of section 185 (3) (a) (i), (ii) and (iii) of Act, No.15 of 1987 read with Section 2(1) of the Provincial Councils (Conse-quential Provisions) Act, No. 12 of 1989. (Vide P10). Even though thelearned Attorney-at-Law for the 2nd and 3rd respondents in his state-ment of objections dated 4.12.95 at para 4(e) has stated that P3 wasfound to be unsatisfactory there is no reference to P3 in P4. If P3 wasfound to be unsatisfactory and the petitioner was called upon to ex-plain further, if necessary he may have been able to explain satisfac-torily. Instead P4 similar to P2 was sent.
Meanwhile on 30.4.95 before P2 dated 10.5.95 was sent to thepetitioner itself the 2nd respondent had written letters to the AssistantCommissioner of Local Government and others requesting them tocontact a suitable retired judicial officer to be appointed as inquiring
150
Sri Lanka Law Reports
[1996J1 Sri L.R.
officer “to inquire into the charges framed against the Chairman andmembers of the Kuchchaveli Pradeshiya Sabha and their mal-adminis-tration of Kuchchaveli Pradeshiya Sabha”. (Vide P12 and paragraph4(h) of the statement of objections dated 4.12.95). Thus even beforeP2 dated 10.5.95 went out asking for explanation, the 2nd respondenthad looked around for a suitable retired Judicial Officer to inquire intothe alleged mal-administration. By document dated 26.6.95 (P8(a)) the1st Respondent to this application was appointed as Inquiring Officerto inquire into the charges preferred against the Chairman and mem-bers of the KPS in terms of section 185(2) of Act, No. 15 of 1987 bythe 3rd Respondent. The appointment was made under section 2(1) ofthe Provincial Councils (Consequential Provisions) Act, No. 12 of 1989.
The petitioner and other elected members were notified by the 1 strespondent by letter dated 3.7.95 (P6) that he intended holding an in-quiry in terms of section 185(2) of Act, No. 15 of 1987 on 24.7.95 at2.30 p.m. in the Colombo office of the 3rd respondent.
Proceedings seem to have taken place before 1 st respondent on
4.8.95, 11.8.95, 28.8.95, 22.9.95, 9.10.95, 24.10.95 and
31.10.95.
Meanwhile on or about 27.7.95 the petitioner filed an applicationbefore the Provincial High Court of North East Province, holden atTrincomalee making the 3rd respondent in this case as 1 st respondentthereto, the Pradeshiya Sabha Kuchchaveli (KPS) as the 2nd respond-ent thereto and the 2nd respondent in this case as 3rd respondentthereto moving for
a writ of Certiorari quashing the order made by the 3rd respond-ent (in this case) suspending the petitioner and 8 other elected mem-bers;
a writ of Prohibition restraining the 3rd respondent (in this case)from enforcing the suspension, and
an interim order staying the operation of the order for suspen-sion pending the final determination of the said application.
CA
Mohamed Ishak v. Morals (Wigneswaran, J.)
151
Apparently upto date the matter seems to be pending before thesaid High Court.
Meanwhile the petitioner and four other members of the “KPS” hadtaken preliminary objections to the proceedings being initiated and heldby the 1st respondent. The objections were inquired into by the 1strespondent and order was made on 31.10.95 rejecting the preliminaryobjections, and inquiry into the substantive matters before him werefixed for 21.11.95.
On 21.11.95 the present application was filed before this Court bythe petitioner seeking a writ of certiorari quashing the order made bythe 1 st respondent dated 31.10.95, seeking a writ of prohibition on the1st respondent to prevent him from proceeding to determine matterspertaining to the “KPS” in Colombo and also seeking an interim orderstaying further proceedings before the 1st respondent regarding thismatter.
Though no interim order was made by this Court, Counsel appear-ing for petitioner and respondents informed this Court that the 1 st re-spondent had ex mero motu postponed inquiry pending determinationof this application by this Court.
Written submissions from both sides were tendered. It appearsthat the 1 st respondent had dealt with the following preliminary objec-tions taken up by Counsel for petitioner (in this case) in his order dated31.10.95:
Since “KPS” is situated within the North East Province, inquiryunder section 185(2) and (3) of Act, No.15 of 1987 should be heldwithin the area covered by the North East Province.The Inquiry beingheld by the 1 st respondent outside the said Province is not permittedby the provisions of the Constitution.
Language in the North East Province beingTamil the proceed-ings should be conducted in Tamil.
Holding the inquiry outside the province not only inconven-iences but also makes it hazardous to the parties who fear politicalreprisals because they belong to the opposition United National Party.
152
Sri Lanka Law Reports
[1996] 1 Sri L.R.
The inquiry being held at the sub office of the 3rd respondent inColombo “casts a shadow” over the petitioner and others.
The suspension of the petitioner and others is the subject mat-ter of an application before the High Court of the North East Provinceholden atTrincomalee.
Whether the inquiry by the 1 st respondent should be completedwithin three months in terms of the law.
The 1st respondent has rejected preliminary objections (i), (ii), (iv),(v) and (vi) and not dealt with (iii). He has decided to go ahead with theinquiry for which he had been appointed.
This Court entertained doubts as to its competence to hear thisapplication on the basis that it lacked jurisdiction with regard to mat-ters arising within a Provincial Council.This Court therefore called uponCounsel on both sides to file written submissions on the question ofjurisdiction vested in this Court to determine this application for writ ofcertiorari and Prohibition since it related to matters concerning theNorth East Provincial Council. Both Counsel have submitted that thisCourt is vested with such jurisdiction. Though their agreement doesnot confer jurisdiction since it is a question of law, yet this Court con-siders the matter merely academic in the context of their agreementand refrains from considering it.
Therefore the contents of the order dated 31.10.95 made by the1st respondent only would now be examined.
The propriety of holding inquiry outside the limits of the NorthEast Provincial Council.It is admitted by both parties that the dispute between the partiesarose within the territorial limits of the North East Provincial Council.
The third respondent who is vested with the power to appoint aretired judicial officer to inquire into it has appointed 1 st respondent tohold the inquiry.There can be no objection to his appointment as he isa retired judicial officer competent to hold such inquiry in terms of the
CA
Mohamed Ishak v. Morais (Wigneswaran, J.)
153
Act. There can also be no objection to his residing outside the territo-rial limits of the Provincial Council.
The objections are to the locus of the inquiry being outside theterritorial limits of the North East Province.
Such an inquiry ordinarily should have been held within the territo-rial limits of the North East Provincial Council.
If there were considerations that outweighed such arrangement the1st and/or 3rd respondent were obliged to bring it to the notice of theparties and ascertain whether there were any objections to holding theinquiry outside the North East Province. There was no such communi-cation and the venue seems to have been fixed unilaterally. If suchcommunications were directed to the parties then they may have ob-jected to it and the matter would have been resolved before the inquiry.But the fixing of the locus seems to have been arbitrary and thereforenot conducive to justice. Fixing of the venue was the responsibility ofthe 3rd respondent and holding the inquiry that of the 1 st respondent.There may have been other retired judicial officers willing and preparedto hold the inquiry in the North East Province. Instead the 3rd respond-ent in this instance seems to have divested himself of the responsibil-ity of fixing the venue and the 1 st respondent had arbitrarily fixed thevenue (by P6) in Colombo. The 3rd respondent should have fixed theforum for the inquiry within the North East Province before choosingthe inquirer. Instead he had allowed the venue to be chosen and fixedby the 1 st respondent to suit the latter’s convenience rather than theconvenience of the petitioner and others.
The Commissioner assumed that the administration from the Gov-ernor’s sub office was right and legal. It is on that assumption he seemedto think that holding the inquiry in Colombo or elsewhere is right andlegal. Whatever may be the merits in that assumption the problem isdifferent. The ordinary civil administration from Colombo is differentfrom the holding of an inquiry in the 3rd respondent’s ofice in Colombo.The 3rd respondent is the prosecutor who had caused the charges tobe framed against the petitioner and therefore actively interested inthe result. Holding of an inquiry in the prosecutor’s office is likely tooverawe the defence.
154
Sri Lanka Law Reports
[1996] 1 Sri L.R.
This clearly has placed the petitioner and others at a disadvantagein the conduct of their defence.
Language
The party against whom the charges have been preferred had aright to have it heard inTamil as it was their mother tongue.The docu-ments were mostly inTamil and all the witnesses knew Tamil and hardlyanyone knew English. The fact that the proceedings were to be con-ducted in English and not inTamil deprived them of a fair trial.
In fact this principle is recognized in the Code of Criminal Proce-dure Act where statements of witnesses have to be taken down in theirown language. (Vide Section 109 and 110 of the Code of Criminal Pro-cedure Act). The very fact that the Constitution vouchsafes trial inone’s own language gives it a constitutional authenticity. This apartthe conduct of proceedings in a language not known to the partiesputs them at a disadvantage.
Fear of political reprisals outside the territorial limits of theNorth East Provincial Council.Witnesses in favour of the defence would not venture to travel toColombo in view of political reprisals. Further it has been stated thatunidentified bodies were seen floating which can inspire fear in theminds of witnesses. Again in the present situation in the country wherehuman lives are cheaply valued and deaths are acommon occurrenceany person unless it is very necessary will not want to venture outsidethe security of his own abode. Therefore the defence would well behamstrung in the presentation of its case by the absence of its wit-nesses. This can affect the ultimate result.
Inquiry in Colombo sub office casts a shadow.In view of the matters dealt with earlier, this Court refrains fromcommenting elaborately on this.
The first respondent in his finding has observed that the situationof the building and its ambience is irrelevant and that it is unlikely to
Mohamed Ishak v. Morais (Wigneswaran, J.)
155
CA
affect the impartiality of the inquirer. No doubt the inquirer’s impartial-ity, independence or integrity cannot be impugned. But the location isvery likely to adversely affect the psychology of the petitioner and hiswitnesses which in turn can affect the result of the inquiry.
Factors urged above under items (1) – (4) by themselves and/orcumulatively can impair a fair trial. It has repeatedly been held by ourcourts that an accused is entitled to a full and fair trial and the failureto hold such trial can vitiate the entire proceedings. Our courts ofjustice have always been sensitive to the rights of an accused andany violation or even a transgression is frowned upon. One of the car-dinal principles of natural justice is the audi alteram partem rule whichmeans that both sides must be heard. They must not only be heardbut heard fully. The inability to procure the attendance of witnessesfavourable to the defence in Colombo precludes the defence beingfully heard. This is a violation of the hallowed principles of naturaljustice.
Besides a fair trial has been ensured to the accused by Article13(3) of the Constitution which reads as follows:-
“Any person charged with an offence shall be entitled to be heardin person or by an Attorney-at-Law, at a fair trial by a competentCourt”.The lack of a fair trial would be a violation of the salutary princi-ples enshrined in the Constitution.
Application No. 147/95 before the High Court of North EastProvince holden atTrincomalee.The matters that are being tried by the 1st respondent at the in-quiry can only be decided after the order is made in Case No. 147/95before the High Court of the North East Province.
This inquiry must in deference to the High Court of the North EastProvince be laid by pending determination by that Court as otherwiseit would be a futile exercise if the High Court of the North East Prov-ince holds with the petitioner.
156
Sri Lanka Law Reports
[1996] 1 Sri LR.
Inquiry to be completed within 3 months.This court is of thg view that section 185 of Act, No. 15 of 1987 isdirectory and not mandatory and therefore the Inquirer is not bound todeliver the order within 3 months.
The petitioner having delayed the proceedings at the inquiry bytaking various preliminary objections cannot be heard to say that therehas been a transgression of the temporal span. This appears to bemischievous and the petitioner is estopped from taking up this objec-tion.
In the light of the foregoing observations this Court annuls all or-ders made by the 1 st respondent and stays further proceedings by the1st respondent in this regard.The Court therefore grants the petitionera mandate in the nature of a writ of Certiorari quashing the order dated
made by the 1st respondent and all proceedings conductedbefore him earlier. It also issues a writ of Prohibition on the 1st re-spondent from proceeding to hear and determine matters connected tothe Kuchchaveli Pradeshiya Sabha.The parties shall bear their owncosts.
Order of 1st respondent annulled. Further proceedings stayed. Writ ofProhibition on 1st respondent from proceeding to hear and determinematters connected to Kuchchaveli Pradeshiya Sabha.