-PETER LEO FERNANDO v. THE ATTORNEY-GENERAL AND TWO OTHERS

037-SLLR-SLLR-1985-V2-PETER-LEO-FERNANDO-v.-THE-ATTORNEY-GENERAL-AND-TWO-OTHERS.pdf


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MuzamiI v. REPIA (Sharvananda. C.J.)
341
PETER LEO FERNANDO
v.THE ATTORNEY-GENERAL AND TWO OTHERS
SUPREME COURT.
COLIN-THOME. J.. RANASINGHE. J . ATUKORALE, J.. TAMBIAH. J. AND L. H. DEALWIS. J
S. C. APPLICATION No. 31/85.
JULY 11. 1985.
Constitution – Fundamental Rights – Violation by Judge – Does it amount toinfringement by executive or administration action ? – Immunity for judicialacts – Articles 4. 1!, 13.14, 17 and 126 of the Constitution – Code of CriminalProcedure Act No. 15 of 1979. s. 136. 139 and 142 – Section 70 of the PenalCode – Crown (Liability in Delict) Act No. 22 of 1969. s. 2 (5).
The petitioner (Peter Leo Fernando) was seated in the well of the Magistrate's Court ofAttanagalla when a case between two other parties but involving the estate of which hewas the Superintendent was going on. On an allegation bv the lawyer an»aring for one
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of the parties that the petitioner had intimidated his client s wife, the Magistrate ofAttanagalla (2nd respondent) who was hearing the case ordered the detention of thepetitioner in the Court cell. The petitioner was then kept in the cell in the custody of thePrisons Officer (3rd respondent). About 4 hours later having verified the complaint ofintimidation and finding no allegation there against the petitioner, the 2nd respondentdirected the petitioner to be released. The petitioner complaining of violation of hisfundamental rights guaranteed under the Constitution and under Articles 17 and 126 ofthe Constitution filed this application seeking relief and damages in a sum of Rs,50.000.
Held –
The Magistrate's order of detention was wrong for non-compliance with theprovisions of the Code of Criminal Procedure Code Act. s. 136, 139 and 142 (2)but there was no evidence of lack of good faith on the part of the Magistrate.
Every judge, whether of superior or inferior courts, enjoys immunity from liabilitywhether in delict or criminal law for acts done in the exercise of his judicialfunctions.
The 2nd respondent had improperly and unlawfully detained the petitioner. Ajudicial order does not become converted into an administrative or executive actmerely because it is unlawful. The detention of the petitioner does not constituteexecutive or administrative action within the meaning of Articles 17 and 126 of the
Constitution.
The State is not liable for anything done by a judge in the discharge or purporteddischarge of his functions as a Judge or for anything done by any person inconnection with the execution of judicial process. 5 6 7 8
(5)An officer of the State who in the course of carrying out an order made by a judge inthe exercise of his judicial functions violates the fundamental right of a person isfree from liability if in doing so he acted in good faith not knowing that the order isinvalid.
Cases referred to:
R. v. Secretary of State for India in Council and Others, Ex parte Ezekiel [1941] 2AHE.R. 546.
Kesri v. Muhammad Baksh [1896J 18 All 221.
Sirrosv. Moore and Others [1974] 3 All E.R. 776; [1975] 1 QB 118.
Maharajv. A. G. of Trinidad and Tobago(No. 2) [1979] A. C. 385 (PC), [1978)2All E.R. 670.
Maharaj v. A. G. of Trinidad and Tobago (No. 1) [1977] 1 All E. R. 41, (P C ).
(6)tore Me C. (A Minor) [1984] 3 WLR 1227.
(7)A. K. Veimurugu v. A. G. and Others. Fundamental Rights Decisions Vol. 1p. 180. 224.
(8)Perera v. University Grants Commission. Fundamental Rights Decisions Vol. 1p. 103. 1*12. 113.
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Leo Fernando v. Attorney-General
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Wijetunga v. Insurance Corporation and Another [1982] 1 Sri LR 1, 6.7; Fundamental Rights Decisions Vol. 2 p. 264.
Wijeratne v. People's Bank[1-984] 1 Sri L.R.1.
Naresh S. Murajikar v. State of Maharashtra. AIR [1967] S.C. 1.
Chokalingev. A. G. of Trinidad and Tobago [1981] 1 AIIE. R. 244.
Anderson ia Gorrie [1895] 1 Q.B. 668.
Fray v. Blackburn [1863] 38. & S. 576. 578.
Garnett v. Ferrand [1827] 6 B & C. 611.
Miller v. Seare [1777] 2 Wm. B1. 1141. 1145.
Mathews et al v. Young [ 1922] AD 492. 509. 510.
Penricev. Dickinson [1945] AD. 6. 14, 15.
Dayananda v. Weeratunga S I. Police et al. S.C. Application 97/82 – S.C.Minutes of20.1.1983; Fundamental Rights Decisions, Vol. 2 p. 291.
Kumarasinghe v. A. G. et al S. C. Application 54/82 – S. C. Minutes of6.9.1982.
APPLICATION for infringement of Fundamental Rights under Article 126 of theConstitution.
W. Obeysekera with C. P. Ilangakoon, S. Parameshwaran and P. £. Satyaseelan,for petitioner.
R. K. W. Gunasekera. with Ranjan Mendis, and Chandrasiri Kotigala for 2nd respondent.Sarath Silva, D. S. G. with Ananda Kasthuriaratchi. S.C. for 3rd respondent.
Cur.adv.vult.
September 9. 1985.
colin-thom£, j.
This is an application for relief under Article 126 of the Constitution bythe petitioner.
A certain Talgaha Kumbure Banda had privately instituted section66 proceedings relating to Bebilapitiyawatte against Dr. F. RanilSenanayake in Magistrate s Court. Attanagalla Case No. 27902. Thepetitioner is the Superintendent of Bebilapitiyawatte.
The Inquiry into the case was fixed for the 26th February, 1985. Onthis day the petitioner, who was not a party or witness in the case,was seated in the well of the court with members of the public whenMr. Wijaya Gunaratne, Attorney-at-law, who appeared for the plaintiff
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Banda stated to the Magistrate, the 2nd respondent, that thepetitioner had on 20.2 1985 gone at night passing the house of thesaid Banda and threatened to shoot his wife Cicilihamy. Mr AshleyHerat, who appeared for the defendant, Dr. F. Rand Senanayake toldthe Magistrate that there was no complaint of such a threat andchallenged the plaintiff and his lawyer to produce the complaint ofCicilihamy to the Police.
The 2nd respondent directed the Mingama Police to fetch theaforesaid complaint and without intimating to the petitioner the chargeagainst him and without inviting the petitioner to answer any chargethe petitioner "was just marched and flung into the cell" by the Fiscal,W. P Karunadasa. the 3rd respondent, on the orders of the 2ndrespondent. The petitioner was locked up in the cell "in disgraceamong criminals from 10.45 a.m. to 2.45 p.m.'
The complaint (P1) which was produced by the Police had not aword oi the petitioner threatening to shoot|Cicilihamy. It stated thatone Wije had said if the barking dog is not tied it will be shot. At thisstage the 2nd respondent released the petitioner at 2.45 p.m.
Mr. Ashley Herat demanded an apology but it was not given byBanda's lawyer or the 2nd respondent.
The petitioner claims that his fundamental rights under Articles 11,
. 13(1). 13 (2) and 14 (1) (b| have been infringed and prays for reliefand damages m the sum of Rs. 50,000.
The complaint (PI) of Cicilihamy aged 77 years, wife of P. K. Banda,to the Mirigama Police made on 21.2.85 stated :
"Yesterday when I was at home with my husband and children atabout 8.30 p m. Leo. Gunadasa and Wije came passing near ourhouse. Leo had a gun At that stage our dog barked at them. ThenWije said if the dog is not kept tied it will be shot. Thereafter Wijeabused in filthy language. Gunadasa pelted stones at our house. Inthis manner these persons harassed us several times."
The 2nd respondent stated in his affidavit that on tne 26th February1985 when the case No. 27902 was called in his Court. Mr. WijayaGunaratne, Attorney-at-Law. who appeared for the plaintiffcomplained to court that at about 8.30 p.m on the 21st February
SCLeo Fernando v. Attorney-General (Colin-Thome. J.)345
1985 a person called Leo who was armed with a shotgun along withone Gunadasa and one Wije committed criminal trespass on thecompound of Cicilihamy and threatened to open fire. Wije abusedCiciliharny in obscene language and Gunadasa pelted stones at herhouse, Cicilihamy is the wife of Talgaha Kumbure Banda the informantin case No 27902 which was before Court at the time.
The gravamen of the complaint of Mr. Wijaya Gunaratne was thatthere was an attempt to undermine the authority of the Magistrate'sCourt by intimidating those who had at the time invoked thejurisdiction of the Magistrate's Court in order to seek redress forvarious high-handed acts that had led to an imminent breach of thepeace m the area.
Thereafter Mr. Wijaya Gunaratne stated to Court that one of thepersons who had committed the offences of trespass, intimidation,mischief and assault, within the meaning of the Penal Code, namely,one Peter Leo was present in Court and pointed at the petitioner whowas a member of the public sitting in the Court.
Mr Ashley Herat. Attorney-at-Law, who appeared for the defendantDr F. Rami Senanayake stated to Court that there was no suchcomplaint of a threat and no consequent inquiry from the petitionerabout such a threat and challenged the plaintiff in M. C. Attanagalla27902 and his lawyer to produce the complaint by Cicilihamy to thePolice that the petitioner, H. Peter Leo Fernando had threatened toshoot her.
The 2nd respondent then directed the Mirigama Police to fetch thecomplaint immediately.
On the basis of the complaint made by Mr. Wijaya Gunaratne interms of section 136 (1) (a) of the Code of Criminal Procedure ActNo 15 of 1979 that an offence had been committed within theterritorial jurisdiction of the Magistrate’s Court the 2nd respondentdirected the 3rd respondent to detain the petitioner immediately. Thetune was approximately 10.45 a.m
At about 2.45 p.m. the Mirigama Police produced the complain!P1 Having perused the complaint and on the basis of the submissionsmade by Mr. Ashley Herat and on the undertaking given by the
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petitioner that he would not conduct himself in a manner that wouldconstitute a breach of the peace the 2nd respondent avers that hedecided to release the petitoner from detention because it appearedto him that the Police had not concluded their investigation into thecomplaint
The 2nd respondent stated that his decision to detain the petitionerwas in the exercise of judicial authority and therefore it was a judicialact done in good faith. There was no malice on his part whatsoeverwhen he detained the petitioner He did not know the petitioner priorto the 26th February. 1985.
The 3rd respondent stated in his affidavit that at all times material tothis application he worked as a Jail Guard attached to the MaharaPrison and never held the post or functioned as Fiscal. Gampaha.Western Province, as alleged by the petitioner.
On the 26th February 1 985 five Jail Guards including himself wereassigned the duty of escorting about 20 persons who were in custodyand had to be produced before the Magistrate's Court of Attanagallaon orders received from Court. The 20 persons were kept in a cellwithin the Court House. This cell was an enclosure with an opening forpersons to go in and come out. It had no door and was not lockable.At about 10.45 a m. the petitioner came into the cell on a directionfrom the 2nd respondent and he remained there till 2 45 p.m. At thattime the other jail guards and he were near the cell engaged in escortduty He denied having done anything in violation of the rights of thepetitioner.
Tfie petitioner in his counter affidavit stated that on the 26thFebruary, 1985, no complaint as a complaint under section 136 ofthe Code of Criminal Procedure Act was ever made by Mr. WijayaGunaratne nor was he examined upon such complaint. A copy of thejournal entry of the 26th February, 1985 in M C Attanagalla 27902was produced marked P2 which contains not a word of such anexamination of Mr. Wijaya Gunaratne
Mr Gunaratne referred only to the petitioner threatening to shootCicilihamy. There was nothing about trespass and mischief.
The petitioner stated that there was not a particle of truth in thestatement that the Court released him because he gave anundertaking Court to behave well in the future.
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Leo Fernando v. Attorney-General (Cohn-Thome. J.)
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it is necessary at this stage to examine the submission of the 2ndrespondent that on the basis of the complaint made by Mr. WijayaGunaratne in terms of section 136 (1) (a) of the Code of CriminalProcedure Act, No. 15 of 1979, that an offence had been committedwithin the territorial jurisdiction of the Magistrate's Court mAttanagalla the 2nd respondent directed the 3rd respondent to detainthe petitioner immediately.
Chapter XIV (sections 136 to 144) of the Code of CriminalProcedure Act deals with the procedure governing the"Commencement of Proceedings before Magistrates' Courts".Section 136 (1) (a) reads as follows :
"136. (1) Proceedings in a Magistrate’s Court shall beinstituted in one of the following ways :
(a) On a complaint being made orally or in writing to a Magistrateof such court that an offence has been committed which suchcourt has jurisdiction either fo inquire into or try.
Provided that such a complaint if in writing shall be drawnand countersigned by a pleader and signed by thecomplainant."
Section 139 deals with the Issue of Process. The relevant portionsof section 1 39 : read-
139.(1) "Where proceedings have been instituted underparagraph (a). … of section 136 (1) and the Magistrate is ofopinion that there is sufficient ground for proceeding against someperson who is not in custody
(a) if the case appears to be one in which according to the fourthcolumn of the First Schedule a summons should issue m thefirst instance, he shall, subject to the provisions of section63, issue a summons for the attendance of such persons ;
(fc>) if the case appears to be one in which according to thatcolumn a warrant should issue in the first instance, he shallissue a warrant for causing such person to be brought or toappear before the court at a certain time .
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Provided that—
(i) the Magistrate may in any-case, if he thinks fit. issue asummons in the first instance instead of a warrant .
|n) in any case under paragraph (a). . of section 136 (1). the
Magistrate shall, before issuing a warrant, and may. beforeissuing a summons, examine on oath the complainant orsome material witness or witnesses "
Under section 14-1 "Every examination held by the Magistrateunder section 139 shall be recorded in the manner provided in section138 (2).'
Section 138 (2) reads :
"Every examination held by the Magistrate. shall be reducedinto writing and after being read over and if need be interpreted tothe person examined shall be signed by him and also by theMagistrate and dated."
Under section 142 (2)
"Where the offence appears to be one triable summarily in aMagistrate's Court the Magistrate shall follow the procedure laiddown m Chapter XVII."
Section 182 requires the particulars of the case to be stated tothe accused –
182 (1) "Where the accused is brought oi appears before thecourt the Magistrate shall if there is sufficient groundfor proceeding against the accused, frame a chargeagainst the accused
(2) The Magistrate shall read such charge to the accusedand ask him if he lias any cause to show why heshould not be convicted.“
If the accused pleads not guilty to the charge the Magistrate shallproceed to trial according to the procedure laid down in sections 183and 184
A preliminary question to be decided is whether Mr WijayaGunaratne was a complainant m this case in the strict legal sense In, Ftv. Secretary gf State for India in Council and Others, Ex. parte Exekiel
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(1} at the hearing at Bow Street a junior counsel on one side wascalled as a witness to prove certain aspects of Indian law andcontinued thereafter to act as counsel in the case. No objection wastaken to this by counsel on the other side. It was held that this wasirregular and contrary to practice. A barrister may be briefed ascounsel in a case or he may be a witness in a case. He should not actas both counsel and witness in the same case.'
In the instant case Mr. Gunaratne was a pleader and not a witnessand his remarks to Court were based entirely on hearsay. As theMagistrate took cognizance of an offence on a complaint by Mr.Gunaratne. the only manner in which he could have disposed of it wasto have examined the complainant Cicilihamy, and after holding suchinquiry as he considered necessary under section 136 (1 )(a) madeeither an order of dismissal or issued process against the accusedunder section 139.
The gravamen of the complaint was one of criminal intimidation, anoffence punishable under section 486 of the Penal Code. According tothe fourth column of the First Schedule of the Code of CriminalProcedure Act where the offence is criminal intimidation a warrantshall be issued by the Magistrate for causing the accused to bebrought or to appear before the court at a certain time. Before issuinga warrant the Magistrate has to examine on oath the complainant orsome material witness or witnesses. Every examination held by theMagistrate under section 139 shall be recorded in the mannerprovided in section 138 (2).
The requirement as to the examination of the complainant isimperative and should be strictly complied with in order to prevent afalse, frivolous and vexatious complaint being made to harass aninnocent party and to waste the time of the Court. The substance ofthe examination, reduced to writing, should be' distinct from thecomplaint itself. The examination is not to be a mere form, but mustbe a full and intelligent inquiry into the subject-matter of the complaint,carried far enough to enable the Magistrate to exercise his judgmentand see if there is a prima facie case or sufficient ground forproceeding. The examination should be on facts which are within thecomplainant's knowledge : Kesri v. Muhammad Baksh (2) ; Chitalevand Rao, The Code of Criminal Procedure, Vol. 1, 1121 ; Sohoni'sThe Code of Criminal Procedure, 16 th Ed., Vol. 11, 1235.
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I hold that in the instant case the Magistrate had misinterpreted theprocedure laid down in section 136 (1) [a). 139 and 142 (2) resultingin the petitioner being improperly detained for four hours in a cell.There is however no evidence of the absence of good faith on the partof the Magistrate.
The main question for determination in this case is whether theaction of the 2nd respondent ordering the detention of the petitionerconstitutes "executive or administrative action" within the meaning ofArticles 17 and 126 of the Constitution :
17. "Every person shall be entitled to apply to the SupremeCourt, as provided by Article 126, in respect of theinfringement or imminent infringement, by executive oradministrative action, of a fundamental right to which suchperson is entitled under the provisions of this Chapter."
126(1) “The Supreme Court shall have sole and exclusivejurisdiction to hear and determine any question relating tothe infringement or imminent infringement by executive oradministrative action of any fundamental right or languageright declared and recognized by Chapter III or Chapter IV."
The phrase 'executive or administrative action" in Articles 17 and126 has to be interpreted in the context of the provisions of theConstitution.
Articles 3 and 4 which are the basic Articles of the Constitutionread :
"3, In the Republic of Sri Lanka sovereignty is in the People and isinalienable. Sovereignty includes the powers of government,fundamental rights and the franchise.
4. The Sovereignty of the People shall be exercised and enjoyed inthe following manner
the legislative power of the People shall be exercised byParliament, consisting of elected representatives of thePeople and by the People at a Referendum ;
The executive power of the people, including the defenceof Sri Lanka, shall be exercised by the President of theRepublic elected by the People.
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the judicial power of the People shall be exercised byParliament through courts, tribunals and institutionscreated and established, or recognized, by the Constitution,or created and established by law, except in regard tomatters relating to the privileges, immunities and powers ofParliament and of its Members, wherein the judicial powerof the People may be exercised directly by Parliamentaccording to law ;
the fundamental rights which are by the Constitutiondeclared and recognized shall be respected, secured andadvanced by all the organs of government, and shall not beabridged, restricted or denied, save in the manner and tothe extent hereinafter provided
The legislative power provided for in Article 4(a) is elaborated inChapters X, XI, XII and XIII of the Constitution.
The executive power provided for in Article 4(b) is elaborated inChapters VII, VIII and IX of the Constitution.
The judicial power which is provided for in Article 4(c) is elaboratedin Chapters XV and XVI of the Constitution.
Although there is a duty cast by other constitutional provisions, forexample. Articles 4(d), 27(2) (a), 28 and 156, on organs of the Statein general and on others, to respect, secure and advance fundamentalrights this is not to be confused with the special procedure establishedfor obtaining relief and redress from the Supreme Court under Article126. The special procedure can be availed of only in respect of"executive and administrative action."
Learned Counsel for the petitioner submitted that when a judgeorders the detention of a person without authority the order is not ajudicial act it is an administrative act.
In Sirros v. Moore and Others• (3) a judge of a Crown Court haddismissed an appeal against a recommendation for deportation,andafter giving judgment ordered the appellant to be arrested anddetained which the judge had no jurisdiction to do. The appellant wasdetained in the court cells for about 24 hours. The appellant wasreleased by habeas corpus but failed in an action for assault and false
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imprisonment against the judge and agamsl the police officers whoexecuted the order. It was held that though the judge was mistakenyet he acted judicially and for that reason no action will lie against him.Likewise, no action will lie against the police officers. They areprotected in respect of anything they did at his direction, not knowingit was wrong
Judges in courts of law enjoy special immunity from actions in tort.Under the old common law the immunity in regard to the SuperiorCourt, was absolute and universal ; with respect to the inferior courtsit is only while they act within their jurisdiction.
The dichotomy between superior and inferior courts has beenabolished by the Court of Appeal in Sirros v Moore (supra) which hasdeclared that in the changed judicial system of today there must bethe same rule for all |udges, including magistrates. Lord Denning, MR said <785)
’ in this new age I would take my stand on this. As a matter ofprinciple the judges of superior courts have no greater claim toimmunity than the judges of the lower courts. Every judge of thecourts of this land – from the highest to the lowest – should beprotected to the same degree, and liable to the same degree If thereason underlying this immunity is to ensure 'that they may be freem thought and independent m judgment’ it applies to every judge,whatever his rank. Each should be able to do his work in completeindependence and free from fear He should not have to turn thepages of his books with trembling fingers, asking himself: 'If I dothis, shall I be liable in damages ? So long as he does his work in thehonest belief that it is within his jurisdiction, then he is not liable toan action. He may be mistaken in fact. He may be ignorant in law.What he does may be outside his jurisdiction-in fact or in law-butso long as he honestly believes it to be within his jurisdiction, he
should not be liableNothing will make him liable except it be
shown that he was not acting judicially, knowing that he had nojurisdiction to do it."
The immunity of a judge in delict under Roman-Dutch Law issimilar : "No action lies against a judge for acts done or words spokenin honest exercise of his judicial office. If he acts in bad faith or withinjurious intention, he will, perhaps, be liable"—R. W. Lee, AnIntroduction to Roman-Dutch Law, 4th Ed. 341.
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Voet has pertinently stated the rule as follows
"But in our customs and those of many other nations it is ratherrare for the judge to make the suit his own by ill-judging. That isbecause it is a trite rule that he is not made liable by mere lack ofknowledge or unwisdom, but by fraud only, which is commonlydifficult of proof. It would be a bad business with judges especiallylower judges who have no skill in law if in so widespread a science oflaw and practice, such a variety of views, and such a crowd of caseswhich will not brook but sweep aside delay, they should be heldpersonally liable to the risk of individual suits, when their unfairjudgement springs not from fraud, but from mistake, lack ofknowledge or unwisdom"-Voet. Commentary on the Pandects,translated by Percival Gane (1 955), Vol. II, 73.
In Roman-Dutch Law the same principles govern the immunity ofjudges of the superior and inferior courts from action in delict
With regard to criminal liability section 70 of the Penal Code states :
70 "Nothing is an offence which is done by a Judge when actingjudicially in the exercise of any power which is or which ingood faith he believes to be given to him by law".
In Maharaj v. A. G. of Trinidad and Tobago No 2 a barrister wascommitted to prison for seven days for contempt on the order of theHigh Court Judge. In an earlier appeal reported at Maharaj v. A. G. ofTrinidad and Tobago No. 1 (5) the Privy Council held that the judge,however inadvertently, had failed to observe a fundamental rule ofnatural justice; that a person accused of an offence should be toldwhat he is said to have done plainly enough to give him an opportunityto put forward any explanation or excuse that he may wish to advance.The question in the second appeal was whether this procedureadopted by the Judge before committing the appellant to prison forcontempt constituted a deprivation of liberty otherwise than by dueprocess of law. within the meaning of section 1 (a) of the Constitutionof Trinidad and Tobago of 1962, for which the appellant was entitledto redress by way of monetary compensation under section 6. Themajority of the Judicial Committee of the Privy Council held thatsection 6 of the constitution created a new remedy for thecontravention of constitutional rights without reference to existingremedies ; that the word "redress" in section 6 meant compensation,
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including monetary compensation ; and that the claim was not a claimin private law for damages for the tort of false imprisonment, but wasa claim in public law for compensation from the State for deprivationof liberty alone. The appeal was allowed and the case was remitted tothe High Court to assess the amount of monetary compensation towhich the appellant was entitled.
Lord Hailsham in a strong dissenting judgment stated at p. 409 inthe Maharaj Case No. 2 (supra):
"I must add that I find it difficult to accommodate within theconcepts of the law a type of liability for damages for the wrong ofanother to whom the wrongdoer himself is under no liability at all andthe wrong itself is not a tort or delict. It was strenuously argued forthe appellant that the liability of the state in the instant case was notvicarious, but some sort of primary liability. But I find this difficult tounderstand. It was argued that the state consisted of threebranches, judicial, executive, and legislative and that as one ofthose branches, the judicial, had in the instant case contravened theappellant's constitutional rights, the state became by virtue ofsection 6 responsible in damages for the action of its judicialbrafich. This seems a strange and unnatural way of saying that thejudge had committed to prison the appellant who was innocent andhad done so without due process of law and that someone otherthan the judge must pay for it (in this case the taxpayer)."
It should be noted, however, that the Constitution of Trinidad andTobago of 1962 has no provision corresponding to Article 126 of theConstitution of Sri Lanka restricting the jurisdiction of the SupremeCourt to hear and determine any question relating to the infringementor imminent infringement "by executive or administrative action' of anyfundamental right declared and recognized by Chapter III.
Similarly, in In re Me C (a miner) (6) a case from Northern Ireland,the defendant, aged 14 years, pleaded guilty before a juvenile court tocharges relating to a motor vehicle and was ordered to attend the.attendance centre. As he failed to attend the attendance centre onfour occasions the justices ordered that he be sent to a training schooland he was detained pursuant to that order. The defendantcommenced a civil action against the justices constituting the juvenilecourt claiming damages for, inter alia, false imprisonment, trespass tothe person and breach of a statutory duty.
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The Court of Appeal in Northern Ireland held that the justices hadacted "without jurisdiction or in excess of jurisdiction" within themeaning of section 15 of the Magistrate's Courts (Northern Ireland)Act 1964 and allowed the defendant's appeal.
Section 15 of the Northern Ireland Act of 1964 provides asfollows
“No action shall succeed against any person by reason of anymatter arising in the execution or purported execution of his office ofresident magistrate or justice of the peace, unless the court beforewhich the action is brought is satisfied that he acted withoutjurisdiction or in excess of jurisdiction."
The House of Lords, dismissing the appeal of the justices held thatArticle 15 (1) of the Treatment of Offenders (Northern Ireland) Order1976 was intended to ensure that a custodial sentence was notimposed for the first time on a defendant who was not legallyrepresented unless such lack of representation was through his ownchoice ; that although the justices had jurisdiction to try and convictthe defendant of the offence charged and to order his detention, theomission to inform him of his right to legal aid amounted to a failure tofulfil a statutory condition precedent to the making of the trainingschool order; and that, accordingly, the justices acted "withoutjurisdiction or in excess of jurisdiction" within the meaning of section15 of the Act of 1 964, thus rendering them liable in a civil action fordamages.
Lord Bridge in his judgment in In re Me. C. (supra) referring to thejudgment of Lord Denning in Sirros v. Moore (supra) expressed theview that the distinction between the immunity of superior courts andjustices still exists. This view was expressed obiter as this aspect ofthe subject was not argued by counsel. The judgment in Sirros v.Moore (supra) was considered but not overruled.
In Sri Lanka there is no enactment corresponding to section 15 ofthe Northern Ireland Act of 1964. In our country the immunity of ajudge from actions in tort or delict is governed by the common law.Furthermore, in England justices consist of stipendiary magistratesand lay benches. There is no such distinction in Sri Lanka.
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It is necessary now to examine the interpretation of the expression"executive or'administrative action" given by the Supreme Court. In A.
K.Velmurugu v. A. G and Others. (7), Sharvananda, J. stated :
"It is to be noted that the claim for redress under Article 126 forwhat has been done by on executive officer of the State is a claimagainst the State for what has been done in the exercise of theexecutive power of the State. This is not vicarious liability ; it is theliability of the state itself; it is not a liability in tort at all ; it is a liabilityin the public law of the State – vide . Maharaj v. A. G. of Trinidad(1978) 2 A.E.R. 670 at 679 (P C.) ."
In Perera v. University Grants Commission (8) the question arosewhether the action of the U.G.C in determining the criterion foradmission to the University in 1980 constituted "executive oradministrative action." Sharvananda, J stated
"The expression 'executive or administrative action' embracesexecutive action of the State or its agencies or instrumentalitiesexercising governmental functions "
Thereafter. Sharvananda. J. examined the nature of the functions ofthe U.G.C. and the degree of control exercised by the Governmentand concluded as follows
"The University Act has assigned the execution of a very importantGovernmental function to the respondent. In the circumstances, it isidle to contend that the respondent is not an organ or delegate ofthe Government and that its action in the matter of admission ofstudents to the Universities under it does not have the character ofexecutive or administrative action within the meaning of Article 1 26of the Constitution."
In Wijetunga v. Insurance Corporation and Another (9) the questionarose whether disciplinary action taken by the Insurance Corporationagainst one of its employees constituted "executive or administrativeaction". Sharvananda. A.C J. observed that "The term executiveaction' comprehends official actions of all Government Officers'. Healso stated that "The question whether the Insurance Corporation ofSri Lanka is or is not virtually a department of the State or a servant ofthe Government would be dependant on the provisions of theInsurance Corporation Act No. 2 of 1961. Hence we have to analysethem to determine the nature of its functions, the precise degree of
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control exercised by'the Government over it and whether the amountol control establishes the identity of the Corporation as part of theGovernment.” The principle emerging from this judgment is that thetest is the nature of the function and the degree of control. See alsoWijeratne v. People‘s Bank (10).
H. W R. Wade in Administrative Law 5th edition at p. 70, saysthis
"Judges may be regarded as servants of the Crown in the sensethey are 'Her Majesty's Judges' holding offices granted by theCrown and bound by oath well and truly to serve the sovereign mthose offices. On the other hand it is axiomatic that judges areindependent : the Crown has no legal right to give theminstructions, and one of the strongest constitutional conventionsmakes it improper for any sort of influence to be brought to bearupon them by the executive."
In the instant case applying the function and control test to the 2ndrespondent he was clearly not subject to Government or Ministerialcontrol. Our Constitution accords to judicial officers independencefrom other organs of Government. Articles 107 and 117 under thesub-title "Independence of the Judiciary" are clearly aimed at thisobjective. The 2nd respondent had improperly and unlawfully detainedthe petitioner in this case. A judicial order does not become convertedinto an administrative or executive act merely because it is unlawful InSirros v. Moore (supra) and Maharaj v. A. G. of Trinidad and Tobago(No. 2) (supra) the,, unlawful orders of the Judge detaining therespective appellants were held to be judicial acts. In S. C. 54/82(minutes of 6.9 82) (20) and S.C. 97/82 (minutes of 20.1.83) (19) itwas held that remand orders made by the Magistrate in the wrongfulexercise of judicial discretion as a result of misleading Police reportswould not be subject to review under article 1 26.
Within the framework of our Constitution there is a fundamentalreason for excluding judicial action from review under the procedureprovided for in Article 126. Articles 138 and 139 invest the Court ofAppeal with an appellate jurisdiction for the correction of all errors infact or in law which shall be committed by any Court of First Instance,tribunal or other institution. Under Article 128 an appeal shall lie to theSupreme Court from any final order, judgment, decree or sentence ofthe Court of Appeal in any matter or proceedings, whether civil orcriminal which involves a substantial question of law. In the
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circumstances there is no basis for a collateral jurisdiction in respect ofsuch action under Article 126. In the case of Naresh S. Mura/ikar v.Stale of Maharashtra (11) heard by a Bench of nine Judges, it washeld by a majority of eight to one, that the remedy in respect of judicialaction is by way of appeal and not by way of writ-petition for a violationof fundamental rights Similar reasoning was adopted in the decisionof the Privy Council in Chokahnge v A. G. of Trinidad and Tobago( 1 2).
For the reasons stated in this judgment I hold that the impugnedorder of the 2nd respondent detaining the petitionar was neitherexecutive nor administrative action. The application for relief against allthree respondents under Article 126 of the Constitution is dismissedbut without costs
ATUKORALE, J. – I agree.
TAMBIAH, J. – I agree
H. DE ALWIS. J. – I agree.
RANASINGHE, J.
On the 26th February 1985 the petitioner proceeded to theMagistrate's Court of Attanagalla. He occupied a seat m the well ofthe court-house The 2nd respondent was the Magistrate of thatCourt Case No 27902, in which a person named T. K. Banda hadinstituted proceedings relating to a dispute in respect of a land calledBebilapitiyawatta against a respondent named Dr. F, R. Senanayake.was taken up for hearing by the 2nd respondent. The petitioner wasthe Superintendent of that land An attorney-at-law, named WijayaGooneratne. appeared for T. K. Banda referred to above and AshleyHerath. also an attorney-at-law. represented Dr. Senanayake Duringthe course of his submissions, the attorney-at-law, WijayaGooneratne. informed the 2nd respondent that the petitioner had,armed with a gun, proceeded along with two others to the compoundof the house of the wife of the aforesaid Banda and had threatened toshoot her. Saying so. Wi|aya Gooneratne pointed out to the 2ndrespondent the petitioner who was then seated in Court. Thisallegation brought the opposing attorney-at-law, Ashley Herath, to hisfeet. Challenging Banda and his attorney-at-law to produce any suchcomplaint. Ashley Herath pointedly told the 2nd respondent that therehas been no complaint of any such threat. The 3rd respondentthereupon directed the officers of the Police Station Mirigama, whowere present, to "fetch the aforesaid complaint immediately". The 2ndrespondent also directed the 3rd respondent, a jail-guard of theMahara Prison who had come to court on duty, "to detain the
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petitioner immediately"- The petitioner was thereupon detained in thecourt cell. The time then was 10.45 in the forenoon. About four hourslater, around 2.45 p.m. in the afternoon, the Mirigama Police officersproduced the alleged complaint, marked P1. After a perusal of the saidcomplaint the 2nd respondent decided to release the petitioner uponan undertaking given by the petitioner not to conduct himself in amanner which would constitute a breach of the peace.
The matter would ordinarily have ended there. The petitioner,however, was not content to let it rest there. He decided otherwise.He has now come before this Court, complaining that what the 2ndrespondent said and did that day, in the Magistrate's Court atAttanangalla. constituted a violation of his, the petitioner'sfundamental rights guaranteed under Atricles 11 (freedom fromtorture), 13 (freedom from arbitrary arrest and detention) and 14(freedom of movement).
The 2nd respondent, on the other hand, contends that what wasdone by him on the day in question in the Attanagalla Magistrate'sCourt was done by him "in the exercise of judicial authority* andconstituted "a judicial act done in good faith", with no malice.
In his submissions made to this Court, learned Counsel for thepetitioner quite clearly and categorically stated that the petitioner doesnot allege any malice on the part of the 2nd respondent towards thepetitioner, and does not challenge the bona fides of the 2ndrespondent. He, however, contended that, in directing that thepetitioner be taken into custody and be detained, the 2nd respondentwas – in the words of learned Counsel – "acting as a policemanexercising the coercive power of the State".
The 3rd respondent, in repudiating liability, maintained that he hadnothing to do with what happened within the court house that day,and that what actually happened was that . "the petitioner came intothe 'cell' on a direction of the 2nd respondent and he remained in thecell' till about 2.45 p.m." The allegation made by the petitioner that itwas the 3rd respondent who carried out the direction of the 2ndrespondent finds support in the affidavit of the 2nd respondent. Theliability of the 3rd respondent will, therefore, be considered on thefooting that he did, in the execution of a direction given to him by the2nd respondent, detain the petitioner in the court cell on that day from10 45 a m. to 2.45 p.m.
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The issues which arise for determination in this case call for aconsideration of the question of judicial immunity against civil liabilityfor acts done by judges in their judicial capacity – a matter which is ofthe utmost importance not only to the judiciary but also to all citizensalike, whatever be their station in life.
That persons exercising judicial functions m a court are exempt fromall civil liability whatsoever for anything done or said by them in theirjudicial capacity is a rule of the highest antiquity – (Halsbury- 4thEd – Vol. 1. para 206) The object of such judicial privilege is not toprotect malicious or corrupt judges but to protect the public from thedanger to which the administration of justice would be exposed if thepersons concerned therein were subject to inquiry as to malice, or tolitigation with those whom their decisions might offend, and to ensurethat such persons administer the law not only independently and freelyand without favour but also without fear – {Halsbury: para 207).Wade in his book on Administrative Law (4th Ed.), sets out the objectas being "to strengthen their (judges') independence, so that theirdecision may not be warped by fear of personal liability. The reason forsuch judicial immunity was also explicitly set down by Lord Denning,M R in the year 1 974 in the Court of Appeal in the case of Sirros v.Moore (supra) which will be referred to later on in this judgment”.
r
Towards the end of the nineteenth century, in the year 1895 theCourt of Appeal in England had occasion to consider the question ofthe immunity of judges in the case of Anderson v. Gorrie (13) wherethree judges of the Supreme Court ol Trinidad and Tobago were suedm damages for acts though done by them in their judicial capacity butneveitheless alleged to have been done by them maliciously, withoutjurisdiction and with the knowledge of absence of jurisdiction. LordEsher, speaking on behalf of the Bench, stated that by the commonlaw of England no action will lie against a judge of a Court of Recordfor doing something within his jurisdiction but doing it maliciously andcontrary to good faith, and that such rule has, from earliest times,rested on the ground that if such an action would lie the judges wouldloose their independence, and that the absolute freedom andindependence of the judges is necessary for the administration ofjustice, and then proceeded to re-alfirm the principle, which had beenlaid down earlier ip the case Of Fray v. Blackburn (14):
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"It is a principle of our law that no action will lie against a judge ofone of the Superior Courts for a judicial act, though it be alleged to
have been done maliciously and corruptly.The public are
deeply interested in this rule, which indeed exists for therr benefit,and was established in order to secure the independence of thejudges, and prevent their being harassed by vexatious
actionsTo my mind there is no doubt that the proposition
is true to its fullest extent that no action lies for acts done or wordsspoken by a judge in the exercise of his judicial office although hismotive is malicious and the acts or words are not done or spoken inthe honest exercise of his office. If a judge goes beyond hisjurisdiction a different set of considerations arise".
Sirros v. Moore (supra} came up before the Court ef Appeal inEngland in July 1974. Sirros, a Turk, had been permitted to enterEngland on condition of a limited stay. He overstayed such period, anda Deportation Order was made by the Home Secretary. On beingconvicted by the Magistrate, S was fined and ordered to be deported.S appealed, but only against the fine. The Circuit Judge, who heardthe appeal, dismissed the appeal, When the order dismissing theappeal was made, S got up and left court. When the judge saw Sleaving court he told the Police "stop him". The Police followed S andtook him into custody. S was then brought back to court and put intothe cell. In the afternoon S was produced before the judge whorefused bail. On the following day, the High Court directed that S bereleased on bail ; and 5 was released after being in custody for 1 1/2days. 5 thereupon sued the judge and the Police claiming damages forassault and false imprisonment. The Court of Appeal held that thejudge was entitled to immunity from liability in a civil action fordamages, because the act complained of was done by him acting inhis capacity as a judge in good faith, albeit mistakenly. Dealing withthe nature and the extent of such privilege. Lord Denning, M. R.,observed, at page 132 :
"Ever since 1613, if not before, it has been accepted in our lawthat no action is maintainable against a judge for anything said ordone by him in the exercise of the jurisdiction which belongs to him.The words which he speaks are protected by an absolute privilege.The orders which he gives, and the sentences which he imposes,cannot be made the subject of civil proceedings against him. Nomatter that the judge was under some gross error or ignorance, orwas actuated by envy, hatred and malice and all iincharitableness,
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he is not liable to an action. The remedy of the party aggreived is toappeal to a Court of Appeal or to take some such steps toreverse his ruling. Of course, if the |udge has accepted bribes orbeen in the least degree corrupt, or has prevented the course ofjustice, he can be punished in the criminal courts That apart,however, a judge is not liable to an action for damages"
In regard to the reason for such privilege. Lord Denning continued :
“The reason is not because the judge has any privilege to makemistakes or to do wrong. It is so that he should be able to do hisduty with complete independence and free from fear" ;
and further quoted with approval the words of Lord Tenderden. C J. inthe case of Garnett v. Ferrand (15):
"This freedom from action and question at the suit of an individualis given by the law to the judges not so much for their own sake asfor the sake of the public, and for the advancement of justice, thatbeing free from actions, they may be free in thought andindependent in judgement, as all who are to administer justice oughtto be."
At the early stages of the development of this principle in England adistinction was drawn as between the superior courts and the inferiorcourts, as was recognized by De Gray, C.J. in the year 1 777 in thecase of Miller v. Seare (16).
"In all cases when the protection is given to the judge giving anerroneous judgment he must be acting as a judge The protection,in regard to the superior courts, is absolute and universal ; withrespect to the inferior, it is only while they act within theirjurisdiction.'
This distinction, however, is not now recognised and is no longervalid In disposing of such distinction, Lord Denning stated, m Sirros vMoore (supra) at page 1 36, as follows :
"In the old days, as I have said, there was a sharp distinctionbetween the inferior courts and the superior courts Whatever mayhave been the reason for this distinction, it is no longer
validEvery judge of the courts of this land – from the
highest to the lowest – should be protected to the same degree.
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and liable to the same degree. If the reason underlying this immunityis to ensure 'that they may be free in thought and independent injudgment', it applies to every judge, whatever his rank. Each shouldbe able to do his work in complete independence and free from
fearso long as he does his work in the honest belief that it is
within his jurisdiction, than he is not liable to an action. He may bemistaken in fact. He may be ignorant in law. What he does may beoutside his jurisdiction – in fact or in law – but so long as hehonestly believes it to be within his jurisdiction, he should not beliable. Once he honestly entertains this belief, nothing else will makehim liable. He is not to be plagued with allegations of malice or ill-willor bias or anything of the kind. Actions based on such allegationshave been struck out, and will continue to be struck out. Nothing willmake him liable except it be shown that he was not acting judicially,knowing that he had no jurisdiction to do it."
Ormerod, L.J., expressed the principle, at page 149. that a judgeshould be protected :
"where he gives judgment, or makes an order, in the bona fideexercise of his Office, and under the belief of his having jurisdiction.
though he may not have anyWith a fully developed
appellate structure, supplemented by habeas corpus and otherprerogative writs and made accessible to all, or nearly all, by thelegal aid scheme, there is no longer any necessity to preserve, in itsold form, the remedy by way of personal action against judges."
The principle set fo'rth in Sirros's case (supra) was considered by thePrivy Council in 1978 in the case of Maharaj v. Attorney-General ofTrinidad and Tobago (No. 2) (supra) where a member of the Bar ofTrinidad and Tobago, who had earlier succeeded before the PrivyCouncil in having an prder committing him to prison for seven days forcontempt of court set aside on the ground that the committing judgehad failed to specify sufficiently the specific nature of the contempt,with which he was being charged, claimed redress for contraventionof his constitutional rights, Although the Attorney-General andMaharaj, J., – the judge who made the order of committal – wereboth made respondents only the Attorney-General was served withnotice and the action was proceeded with against theAttorney-General alone. Although the Judicial Committee by amajority, held that the failure, referred to above, on the part of
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Maharaj, J., did constitute a contravention of the appellant-barrister'sconstitutional right, and the appellant-barrister was therefore entitledto redress'against the State. Lord Diplock, delivering the judgment ofthe majority did however affirm : the principle set out in Sirros's case(supra) that no action would have lain against the judge himself foranything he had done unlawfully while purporting to discharge hisjudicial functions : that no action in tort would have been availableagainst the police or prison officers who have acted in execution ofjudicial process that was valid on the face of it: that the State was notvicariously liable in tort for anything done either by a judge whiledischarging or purporting to discharge any responsibilities of a judicialnature vested in him, or by a police or prison officer in connection withthe execution of judicial process. The majority decision was based onthe ground . that the order of Maharaj, J., committing theappellant-barrister to prison was made by him in the exercise of thejudicial power of the State and the arrest and detention pursuant tothe judge's order were effected by the executive arm of the State ;that, if such detention amounted to a contravention of a constitutionalright of the appellant-barrister, than it was a contravention by theState : that the claim for redress against something done by a judge isa claim against the State for what has been done in the exercise of thejudicial power of the State, that such liability of the State is not avicarious liability, but is a liability of the state itself: that it is a liability inthe public law of the state and not of the judge himself. Even thoughthe majority affixed liability on the state, yet, the immunity of the judgehimself was upheld. It must in this connection be noted that theConstitution of Trinidad and Tobago does not contain any provisioncomparable to the provision of Articles 17 and 126 of ourConstitution, which, as will be referred to later, restricts the right torelief, as set out therein, only as against 'executive or administrativeaction",
Lord Hailsham, however, dissenting from the majority judgment,took the view : that the majority views amounts to a change in theexisting law which conferred immunity on the judges, on the servantsof the executive acting on a judge's warrant and on the State andproviding that the State should pay damages in respect of judicialmisconduct even though the judge himself remains immune : that it isdifficult to accommodate within the concepts of the law a type ofliability for damages for the wrong of another when the wrongdoerhimself is under no liability at all and the wrong itself is not a tort ordelict. Said Lojd Hailsham :
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'A judge, of course, is not in the ordinary sense a servant. But hehad a further immunity of his own. Judges, particularly High CourtJudges, were not, and are not, liable to civil actions in respect oftheir judicial acts, although, of course, in cases of corruption orcriminal misconduct, they have never been immune from criminalprocess or impeachment. This is trite law, and I need do no morethan refer to the very full and interesting discussion on the subject inthe Court of Appeal in Sirros v. Moore' ,
The judgment in Maharaj's case (supra) was followed in the year1980, in another appeal trom Trinidad and Tobago, by the PrivyCouncil in the case of Chokalinge k. Attorney-General of Trinidad andTobago (supra) where : In 1972, the appellant was convicted, on hisown plea, of contempt of court for having written an article which washeld to constitute the offence of ‘scandalising the court" : theappellant filed no appeal and served his sentence : In 1975 theappellant applied for a declaration under the Constitution of Trinidadand Tobago that his committal was unconstitutional and void becauseit contravened his right under Sec. 1(a)- of the Constitution not to bedeprived of his liberty ‘except by due process of law', as the offenceof scandalising the Court was obsolete and was not in force when theConstitution came into operation and, therefore, he had not beenimprisoned according to ‘due process of law'. The Privy Councilaffirmed the order dismissing the appellant's application made by theCourt of Appeal of Trinidad and Tobago. Lord Diplock. who once againdelivered the judgment of the Privy Council, expanding the statement,which had been previously made by him in Maharaj's case (supra)that:
‘no human right or fundamental freedom recognised by
Chapter 1 of the Constitution is contravened by a judgment or orderthat is wrong and liable to be set aside on appeal for error of fact orsubstantive law, even where the error has resulted in a person'sserving a sentence of imprisonment. The remedy for errors of thesekinds is to appeal to a higher Court. Where there is no higher Courtof Appeal to appeal to then none can say that there, was error',
proceeded to observe : that the 'law' that is referred to in Chapter 1of the Trinidad Constitution is the law of Trinidad and Tobago asinterpreted and declared by the judges in the exercise gf the judicialpower of the state : the fundamental human right guaranteed by the
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relevant sections of the Trinidad and Tobago Constitution is not to alegal system which is infallible but to one which is fair: that, even if thejudge had made a mistake, it was only an error of substantive law ,that the acceptance of the appellant's submission would amount tothe appellant being entitled to parallel remedies, an appeal to a highercourt and if the appeal be unsuccessful, a collateral attack by way ofan application, even years later, for redress under the Constitution to acourt of co-ordinate jurisdiction : that the acceptance of such aninterpretation would be quite irrational and subversive of the rule oflaw which it is a declared purpose of the Constitution to enshrine.
The majority judgment in Maharaj's case (supra) – and expandedon by the subsequent judgment in Chokalinge's case (supra) – drew adistinction between judicial errors which were errors of substantivelaw and those which related to procedure amounting to a violation ofthe ‘due process' clause. It was in regard to the drawing of such adistinction and the resultant consequences which such distinction wassaid to entail in respect of the liability of the State for such judicial acts,that lord Hailsham differed from the majority view in Maharaj's case(supra). Although Lord Hailsham's approach seems to commend itselfto me, yet, it does not make any difference for the purpose of theimmediate question under consideration ; for, both views didunreservedly accept the position that the impugned act, whatever Dethe nature of the error it resultecf in, did constitute a judicial act inrespect of which the judge himself was completely immune f omliability.
A Bench of nine judges of the Supreme Court of India has, in thecase of Naresh S.. Murajtkar v. State of Maharashtra (supra) decided,by a majority, that judicial decisions and orders of courts of competentjurisdiction do not infringe fundamental rights set out in the IndianConstitution, and that the remedy is by way of appeal and notwrit-petition.
The corresponding position under the Roman-Dutch Law is that, inthe performance of his judicial functions, a judge does not renderhimself liable to actions for damages provided the judge has actedbona fide and in the honest discharge of his duties – Matthews et at.vs. Young (17) . Voct 5.1.58 : Meckerron : Law of Delict (6th edt.)sec. 5, p. 78-9, Penricev. Dickinson (18).
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In re Me C. (a minor) (supra) is a judgment delivered on 22.11.84by the House of Lords in an appeal by three justices of the BelfastJuvenile Court, from the decision of the Court of Appeal in NorthernIreland. In that case : the respondent, a minor 14 years of age.pleaded guilty before the three appellants who were the threejustices – the resident Magistrate and two lay justices – of the BelfastCourt, to a motoring offence : the respondent was then ordered toattend an attendance centre : several months later the respondentappeared before the same court charged with failing to attend theattendance centre on certain dates when he had been required to doso . respondent was then ordered to be sent to a Training School: therespondent had not been previously sent to a Training School: therespondent was not represented in court: the respondent was notinformed, after the making of the attendance-centre order and beforethe making of the Training School order, of his right to apply for legalaid : the respondent was detained in pursuance of such order: theTraining School order was thereafter quashed by the Divisional Courtfor non-compliance with Article 15 (1) Treatment of Offenders(Northern Ireland) Order 1976 which provided that no custodialsentence should be imposed for the first time on a defendant who isnot represented unless such lack of representation was through hisown choice : the respondent then commenced a civil action againstthe three appellants for damages, for, inter alia, false imprisonment,trespass to the person and breach of statutory duty. A preliminaryissue of law, as to whether on the facts pleaded any action would lieagainst the appellants in view of the provisions of sec 15Magistrate’s Court Act (Northern Ireland) of 1964 which provided thaino action shall succeed against any resident magistrate or justice ofthe peace by reason of any matter arising in the execution orpurported execution of such office unless such magistrate or justice ofthe peace had "acted without jurisdiction or in excess of jurisdiction",was raised. This preliminary point was upheld by the original court butwas reversed by the Court of Appeal in Northern Ireland. On appeal tothe House of Lords, the decision of the said Court of Appeal wasaffirmed and the appeal of the three justices was dismissed. Theliability of the justices in that case was founded entirely upon astatutory provision – sec. 15 of the Magistrates' Court Act (NorthernIreland) of 1964. Although there seemed to be a difference of opinionas to whether the liability of justices for acts done within jurisdictionbut with malice and without probable cause has fallen into desuetudein Northern Ireland and in England, Lord Bridge of &/%rwicks, who
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wrote the main judgment, did, with the concurrence of two of theothers, Lord Elwyn-Jones and Lord Templeman, accept the principlethat a judge of a court of record is protected from harassment by civilsuits alleging malice. Even though he realised that what he says would'be obiter and that aspect of the case had not been argued. LordBridge nevertheless found the occasion, which he thought was thefirst occasion when the House was called upon to consider the subjectmatter of the liability of justices ip damages for acts done in executionor purported execution of their office, irresistible and proceeded tomake certain observations, inter alia, in regard to the decision of theCourt of Appeal in Sirros' case (supra): that, in view of the statutoryprovisions applicable to Northern Ireland – sec. 15 of the 1964 Actreferred to earlier, – the 'sweeping judgment' of Lord Denning infavour of abolishing the distinction between superior and inferiorcourts cannot be supported in relation to the justices : that, in regardto whether the immunity from suits, granted to the judge of thesuperior court should be granted to judges of courts of limitedjurisdiction, the distinction is so deeply rootqc that it cannot beeradicated by even the House and could t6e changed only byappropriate legislation. Maharaj's case (suprd), it may, however, benoted, was decided in February 1978, and that too by the PrivyCouncil. The decision in this case from Northern Ireland does not, inmy opinion, in any way detract from the principle set out earlier by mein regard to the civil liability of a judge in respect of an act done by himin his judicial capacity.
Sec. 70 of the Penal Code protects a judge from criminal liability inrespect of acts done by him in good faith when acting judicially.
On a consideration of the foregoing, I am of opinion that, under ourlaw, a judge is immune from claims for damages in respect of anythingsaid or done by him bona fide in his capacity as a judge in thedischarge of his judicial functions.
Judges of the Courts of First Instance, whose orders always have adirect and an immediate impact upon both the parties, who comebefore them, and the members of the public who follow theproceedings in court, must always be conscious of. and deeplyappreciate the immunity referred to earlier, so conferred upon them bylaw in regard to all acts done by them in the discharge of their judicialfunctions. It if a privilege which has been bestowed upon them not in
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order to pander to their vanity, or to enable them to make mistakesand to do wrong, or to act without a very high sense of responsibility.It is a protection extended to them solely for the sake of the public,and for the advancement of justice ; so that, the knowledge that theywill not be troubled by any actions against them, would make themtotally free in thought and absolutely independent in judgment, andalso enable them to discharge their functions not only freely andwithout favour, but also without fear. The very thought that suchimmunity is granted to them for'the sake of the public, should inspirethe judges to exercise their powers and discharge their functions withthe highest possible sense of responsibility and with such a highdegree of dignity and decorum as will continue to command and retainundiminished the confidence of the public in an institution which hashitherto enjoyed such confidence in full measure.
The question which now arises is whether, even though the judgehimself is so immune from any liability, the State would yet be liable, inthe field of fundamental rights, for any act of a judge which wouldoperate to infringe a fundamental right guaranteed under theConstitution.
The provisions of the Crown (Liability in Delict) Act. No. 22 of1969, now govern the liability of the State in delict under our law.Under and by virtue of the provisions of sec. 2 (5) of the said Act, theState is not liable in respect of: anything done by a judge in thedischarge or purported discharge of his functions as. a judge : anythingdone by any person in connection with the execution of judicialprocess.
The petitioner has, however, instituted these proceedings for reliefin terms of the provisions of Articles 17 and 126 of the Constitution.Article 17 empowers a person, who is entitled to any fundamentalright set out in Chapter III of the Constitution, to apply as provided inArticle 126 to the Supreme Court, which is vested with sole andexclusive jurisdiction in that behalf, in respect of an infringement orimminent infringement of any such fundamental right by “executive oradministrative action".
Article 4 (d) ordains that all organs of government should respect,secure and advance all the fundamental rights, which are declared andrecognized by the Constitution, and should not abridge, restrict ordeny any one of them save as set out in the Constitution itself. TheJudiciary exercising the judicial power of the People vypuld be one
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such organ of government. Even so, the provisions of Articles 17 and126 refer to infringements or imminent infringements by only"executive or administrative action". Infringements or imminentinfringements by judicial action is not brought within their purview, andmade justiciable. Relief by way of Articles 17 and 126 of theConstitution, could, therefore, be obtained only if the infringement, orimminent infringement, is one caused by an "executive oradministrative" act. If the act, which is said to cause such infringementor imminent infringement, is a judicial act done by a judge acting in hisjudicial capacity, then no relief is available to the aggrieved party underand by virtue of the provisions of the said Articles 17 and 126.
Learned Counsel for the petitioner has, as set out earlier, sought toget over this impediment, insofar as the 2nd respondent is concerned,by contending that the impugned act was not an act committed by the2nd respondent in his capacity as a judge, fpr the reason that : the2nd respondent had.no power or authority as a judge to do what hedid and was therefore acting outside his jurisdiction, and that the 2ndrespondent was at that time acting as an officer of the State exercisingthe coercive power of the State.
The term 'executive or administrative action" has been consideredby this Court on several'previous occasions : Velmurugu vAttorney-General (supra), Perera v. University Grants Commission(supra), Wijetunga v. Insurance Corporation (supra), Wijeratne v.People's Bank (supra). These judgments have considered in depth notonly the nature and the scope of these words and the type of actswhich fall within the purview of the words, but also the character andthe category of persons whose acts would constitute such "executiveor administrative action" These judgments also spell out the principlesupon which persons, who, even though they would not fall directlywithin the category of executive or administrative officers, asdescribed in the Constitution, would, yet, be considered persons, whofunction as organs of government and, as such, be agents of the Statewhose acts could be ascribed to the State.
The contention that the 2nd respondent was at the time in questionacting in a capacity other than that of a judge is based on the groundthat the 2nd respondent had no authority or power to do what he.did.The position taken up by the 2nd respondent to justify what he did,based upon the provisions of Sec. 136 (.1) (a) Code of CriminalProcedure A£t, No. 15 of 1979. does not, in my opinion, bear close
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scrutiny. The information placed before the 2nd respondent was notby way of any material under oath. Nor was it from one who could givedirect evidence. It was only a statement made from the Bar table. Thisstatement was promptly challenged, also from the Bar. The 2ndrespondent himself had desired to be satisfied by perusing the allegedcomplaint itself. The complaint was stated to contain allegations of.inter alia, criminal intimidation, which is an offence for the commissionof which the 2nd respondent had the power, under and by virtue ofsec. 41 of the Code of Criminal Procedure Act No. 15 of 1979. todirect the arrest of the offender. There is no question but that at thetime the impugned act was done by him, the 2nd respondent didintend to exercise powers which he thought were vested in him, andwhich he considered should be exercised by him at that time.Mistaken though he may have been, yet, his bona tides has not beenchallenged. As Magistrate of the division of Attanagalla. the 2ndrespondent did undoubtedly have the power to make, upon propermaterial, an order remanding the petitioner pending furtherinvestigation into an offence set out in the Penal Code.
In the cases cited at the hearing, and referred to earlier, the acts,which were held to bring about liability, were all acts which thepersons, who were held to be so liable, had, in truth and in fact done inthe discharge or purported discharge of the functions of the respectiveoffices so held by such persons. No instance has been cited where thealleged wrongful act done by an officer, falling into one of the threecategories of persons referred to in sub-articles (a), (b), (c) of Article 4of the Constitution, in the discharge or purported discharge of thefunctions of the office which he so held, had been held to have been,in truth and in fact, done by him in the discharge or purporteddischarge of an office falling within one of the other two categories.Nor an instance where the character – legislative, executive orjudicial – of the alleged wrongful act had been held to be, in truth andin fact, different from the character which it was being made out to be.Furthermore, no good ground has been shown why, in such asituation, the alleged wrongful act could not and should not be treatedas an act done by the officer concerned not in the performance of ‘hisofficial duty but in the course of his personal pursuits", and as onewhere 'the officer had taken advantage of the occasion but not hisoffice, for the satisfaction of a personal vagary', and "totallyunconnected with any manner of performance of his officialfunctions".
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In Anderson v. Corrie (supra) and Sirros v. Moore (supra) referred toearlier, the actions were personal actions for damages institutedagainst the judges for civil wrongs committed under the common law.In Maharaj's case (supra), and also the Indian case of Murajikar v.State of Maharastra (supra), the claims put forward are similar to theclaim puf forward in these proceedings – a claim against the State foran infringement, by the judicial arm of the State, of a Constitutionalright guaranteed by the Constitution of the State. Maharaj's case(supra), as indicated earlier, would have to be considered by ourcourts subject to the provisions of Articles 17 and 126 of our ownConstitution In Murajikar s case (supra) the Indian Supreme Court diddecide that judicial acts do not amount to an infringement of thefundamental rights guaranteed by the Constitution.
In Anderson's case (supra) the allegation was that the impugnedacts were done maliciously without jurisdiction and also with theknowledge of absence of jurisdiction. In Sirros's case (supra) the judgewas heljd not to have had jurisdiction to detain S in custody and tohave aoted mistakenly. In Murajikars case (supra) the impugned orderwas declared to be bad on the ground of a fundamental failure ofnatural justice. Even so, in every one of these cases the act in questionwas accepted as a judicial act.
Relief under the provisions of Articles 17 and 126 of theConstitution was refused by this Court in two cases in each of whichthe alleged violations by the respondents of the Fundamental Rightsunder Article 13(1) and (2) of the Contitution had been based uponorders which, though indefensible, had nevertheless been made by ajudge – Dayananda v. Weeratunga, S.l. Police, et a/ (19).Kumarasinghe v. A.G. etal. (20).
On a consideration of the foregoing I am of opinion that the actwhich the 2nd respondent is sought to be made liable for is not an'executive or administrative' act, but is a judicial act done by the 2ndrespondent in his capacity as a judge. That being so, the petitioner isnot entitled to relief as set out in Articles 17 and 126 of theConstitution.
The liability of the 3rd respondent now remains to be considered. Asset out earlier, the position of the 3rd respondent is that he did not dothe act, which ifie petitioner alleges he did, and that he is not liable in
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any way for the detention of the petitioner in the court cell of theMagistrate's Court of Attanagalla on the day in question. In view,however, of the affidavit of the 2nd respondent, I shall, as alreadyindicated, consider the case against the 3rd respondent on the basisthat he did, in fact, detain the 3rd respondent in his custody in theMagistrate's Court of Attanagalla on the day in question, from 10.45*a m. to 2.45 p.m. on the orders of the 2nd respondent.
It is fairly clear that whatever the 3rd respondent did that day wasnot done on his own initiative but was done solely in obedience to adirection given by the 2nd respondent whose orders, in regard to thedetention of persons in court whilst the Court is sitting, he, the 3rdrespondent, had to carry out. In Sirros v. Moore (supra}, Denning, M.
R.having absolved the judge, even though he had acted mistakenly,from liability as he had acted judicially, proceeded to hold that noaction would lie even against the Police officers who had carried outthe orders of the judge, as they had done what they did only at thedirection of the judge not knowing it was wrong. In Maharaj's case(supra) the executive officers had detained the appellant-barrister onlyUpon the order made by the judge. Although the judge himself washeld to be not liable, personally, yet liability was affixed on the Stateonly because of the violation by the judge of the 'due process' clause.The reasoning of Lord Hailsham on this point in the dissentingjudgment commends itself to me, more than the approach adopted bythe majority. The majority view on this point, however, will not berelevant to us. as no such 'due process' clause is found in ourConstitution. Besides, as already set out, under our Constitution relieffor violations of fundamental rights can be obtained by way of Articles17 and 126 thereof only in respect of violations committed by"executive or administrative action". Such relief is not available againstjudicial action – whether the judicial error be one of substantive law,or of procedure. Even if the relief granted against violations offundamental rights be on the basis of a liability of the State itself, yet,such liability must be founded upon an ‘executive or administrative'act done wrongly, without any justification for the doing of it by anagency of the State, or by an officer or agent through whom the Stateexercises its powers. Where, however, such act is itself protected bythe law of the land, then such act cannot give rise to any form ofliability on the part of the State. It has not been urged that, in doingwhat he did, the 3rd respondent was in any way influenced byimproper motives. In the local case of Kumarasinghe v. A.G. et. at
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(supra) no relief was granted by this Court to the petitioner in thatcase against ttie Police officers, when he sued for a violation of theFundamental Right guaranteed by Article 13(1) and (2) – arbitraryarrest and detention – even though the Court was of the view thatthere has been a violation of the Fundamental Right set out in Article
(2), because the Court held that such "violation has been more theconsequence of the wrongful exercise of judicial discretion as a resultof a misleading report’. The position of an officer of the State, who, inthe course of carrying out an order made by a judge in the exercise ofhis judicial functions, violates the Fundamental Right of a person, isthat he would be free from liability, if, in doing so, he has acted in goodfaith, not knowing that the said order is invalid.
The complaints of "exposure to an infliction of degradation – ArticleIT, and 'deprivation of freedom of movement – Article 14(1) (h)',both arise from the aforesaid order for detention. Where such order ofdetention is held not to render the 2nd respondent liable in respect ofthe claim of arbitrary arrest and detention, such immunity wouldoperate also in regard to the claims of violation of Articles 11 and
(1) (h). The petitioner had been detained within the court buildingitself, imthe cell where all persons who are detained upon the orders ofthe presiding Magistrate are ordinarily kept during the period the Courtis in session. There is no express evidence in regard to the condition ofthe cell which was in existence in the Magistrate's Court of Attanagallaon the day in question. It may have been similar to such cells found inthe other Magistrates' Court jn the island. It may well be that theycannot be described as comfortable places even for a very short stay,and they leave much to be desired. However uncongenial,uncomfortable, undesirable'and cramped such stay may have been,yet, it was the direct outcome of the aforesaid order for detention.Thus, even if any other rights were in fact affected, that would be theincidental and indirect outcome of the said order of detention. If suchmain order does not give rise to any relief, then complaints of suchincidental and indirect violations will also not give rise to anyrelief – vide Murajikar's case (supra) – paras, 43, 75. 138.
In this view of the matter, I am of opinion that the petitioner's claimagainst the 3rd respondent too must fail.
The petitioner's application against all three respondents isaccordingly dismissed, but without costs.
Application dismissed.