027-SLLR-SLLR-2006-V-1-PIYASENA-DE-SILVA-AND-OTHERS-vs.-VEN.-WIMALAWANSA-THERO-AND-ANOTHER.pdf
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Piyasena De Silva and Others vs.
Ven. Wimalawansa Thero and Another (Bandaranayake, J.)
219
PIYASENA DE SILVA AND OTHERSVS.VEN. WIMALAWANSA THERO AND ANOTHERSUPREME COURTBANDARANAYAKE, J.
FERNANDO, JANDAMARATUNGA, J.
SC APPEAL No. 58/2005SC SPLA.188/2005CA No. 78/2004
9th AND 19th SEPTEMBER, 2005
Writ of mandamus – Application to intervene – Refusal in chambers withouthearing appellants – Contravention of Article 106(1) of the Constitution directingpublic sittings – Legitimate expectation of hearing – Fair procedure.
Four appellants applied to the Court of Appeal to intervene and object to anapplication by the first respondent against the second respondent for a writ ofmandamus to compel the issue of a driving licence to the first respondentmonk.
When the application was submitted to a judge in chambers, the judgewithout hearing the applicant – appellants or counsel and without givingreasons summarily refused the application.
HELD:
The failure of a single judge to hear parties infringed Article 106 (1) ofthe Constitution which requires "public sittings" save in exceptionalcases. Further the President, Court of Appeal had fixed the matter to beheard by two judges as required by Article 146(2)(iii) of the Constitution.The order made by a single judge was invalid in the circumstances.
The respondent's counsel conceded that it was appropriate to haveheard parties before the impugned order was made, subject to the
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respondent's right to object to the appellants' standing to intervene. Forthis reason and for the reason that the failure to hear the parties wascontrary to natural justice constituted a failure of a fair hearing for whichthe appellant had a legitimate expectation, the order made in chamberswas invalid.
Although natural justice does not require the giving of reasons for anadministrative decision, there is a strong case for giving reasonsparticularly to assist the aggrieved party to pursue the remedy of anappeal.
It is unnecessary to decide on the question of standing of the appellantsas that question would be a matter for the Court of Appeal to decide.
Cases referred to:
Madan Mohan vs Carson Cumberbatch and Co. (1988)2 Sri LR 75
R vs University of Cambridge (1723)1 STR 557
Schmidt vs Secretary of State for Home Affairs (1969)2 Ch 149
Pure Spring Co. Ltd. vs Minister of National Resources (1947)1DLR 501
APPEAL against the order of the Court of Appeal.
U.Egalahewa for appellants.
Saliya Peiris with Asthika Devendra for petitioner – respondents.
Cur.adv. vult
14** October 2005
SHIRANI BANDARANAYAKE, J.This is an appeal from the order of the Court of Appeal dated 04.08.2005.By that order the Court of Appeal refused an application made by the 1 stto 4th intervenient-petitioners-petitioners-appellants (hereinafter referredto as the appellants) for listing for intervention in the Court of Appeal (Writ)
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Piyasena De Silva and Others i/s.
Ven. Wimalawansa Thero and Another (Bandaranayake, J.)
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Application No. 1978/2004 without being heard and allowing the appellantsto support their application. The appellants came before this Court whereSpecial Leave to Appeal was granted on the following questions:
“1. Did the Court of Appeal err in law when the said Court decided todismiss the application without hearing the petitioners ?
2. Did the Court of Appeal err in law for not listing an application forintervention for support?”
The facts of this appeal are as follows :
The appellants are Members of the Dayaka Sabha of the Sri SakyamuniViharaya where the petitioner – respondent-respondent (hereinafter referredto as the 1st respondent) is the chief incumbent Thero. The appellantssubmitted that they had become aware through various means that the1 st respondent had filed an application against the respondent – respondent-respondent (hereinafter referred to as the 2nd respondent), being theCommissioner of Motor Traffic for not issuing a driving license to him in theCourt of Appeal (C. A. (Writ) No. 1978/2004) and that a mandamus hadbeen sought for the issuance of a valid driving license (A1). Theaforementioned application was supported by the learned Counsel for the1st respondent on 22.10.2004 and notice was issued on the 2ndrespondent. The 2nd respondent had filed papers objecting to the grant ofthe writ of mandamus stating inter-alia that the Members of the DayakaSabha as well as the Commissioner General of Buddhist Affairs had objectedto the granting of the said driving license (A2). The case was thereafterfixed for hearing for 14.09.2005.
Learned Counsel for the appellants submitted that the appellants, beingdevoted Buddhists as well as Members of the Dayaka Sabha of the SriSakyamuni Viharaya, who have been actively involved in affairs of thetemple where the 1st respondent is the chief incumbent thero, have asufficient interest in the matter where the 1 st respondent has sought amandamus directing the 2nd respondent to issue a valid driving license. Itwas also contended that the grant of a valid license to a Buddhist monk isagainst the Dhamma and Vinaya as claimed, not only by the Members ofthe Dayaka Sabha and the villagers, but also by the public in general.Accordingly the appellants had moved to intervene in the case pendingbefore the Court of Appeal and to allow them to file objections (A3). The
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appellants had claimed that, being Members of the Dayaka Sabha thatmaintains the said temple of the village they have sufficient interest tointervene. The relevant documents had been filed in the Court of Appeal on
26.07.2005.
On 04.08.2005, without being heard and without allowing the appellantsto support their application, the Court of Appeal had refused the appellants'application for intervention (A4). The said refusal had been made not inopen Court, but in chambers by a single Judge.
Learned Counsel for the appellants contended that the said order ofthe Court of Appeal is contrary to law and is arbitrary and is in violation ofthe rules of natural justice as the appellants were not given a hearingbefore the decision to reject the application for intervention in the Court ofAppeal (Writ) No. 1978/2004.
Learned Counsel for the 1 st respondent conceded that it would havebeen more appropriate in the interests of natural justice for the Court ofAppeal to have heard the appellants' Counsel in support of their application.He further submitted that the 1st respondent has no objection to theappellants being heard in open Court on their application. While concedingthe appellants' right to support their application in open Court for intervention,learned Counsel for the 1 st respondent submitted that the appellants donot possess any legitimate interest or legal ground whatsoever to intervenein the writ application in the Court of Appeal. He further submitted thatwhilst reiterating the fact that he is not objecting to the appellants beingheard in support of their application to intervene, the 1st respondent has aright to object to that application, which right he wished to reserve for theproceedings in the Court of Appeal.
Having stated the factual position of this appeal, let me now turn toconsider the submissions on the questions of law.
The appellants had filed their application for intervention on 26.07.2005in the Registry of the Court of Appeal. The Journal Entry dated 04.08.2005indicates that the Registrar of the Court of Appeal had submitted it to a
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Vfln Wimalawansa Tharn anrt Another (Randamnavake. ,/.)
Judge in chambers for directions. The said Journal Entry dated 04.08.2005was in the following terms:
“04.08.2005
HonJ.,AAL for the Intervenient petitioner files motion petition, affidavit anddocuments and moves that Court be pleased to call this case on 23rd,26th, 29th August, 2005. Submitted for Your Lordsihp's direction please.
Sgd.
R/CA
04.08.2005”
On the same day this application was refused without hearing theappellants and without giving any reasons. The said action by the Court ofAppeal, according to the learned counsel for the appellants, raises severalfundamental issues, which could be broadly categorized into two segments.They are as follows:
the impugned order given by the Court of Appeal on 04.08.2005 isin contravention of the provisions of the Constitution of the Republic;
The manner in which the said impugned order was given is in breachof the rules of natural justice.
It is pertinent to note that the refusal to call the case in open Court forthe appellants to support their motion, was decided in the Chambers by asingle judge without giving the parties an opportunity for a hearing. Article106 of the Constitution refers to the sittings of all Courts and the manner inwhich it should be carried out. The said Article is in the following terms:
"106(1) The sittings of every court, tribunal or other institutionestablished under the Constitution or ordained and established byParliament shall subject to the provisions of the Constitution be heldin public, and all persons shall be entitled freely to attend such sittings.
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Article 106(2) refers to the exception to the rule referred to in Article106(1), which included:
proceedings relating to family relations,
proceedings relating to sexual matters,
in the interests of national security or public safety, or
in the interests of order and security within the precincts of suchcourt, tribunal or other institution.
Article 106(1) of the Constitution deals with 'Public sittings' and the
meaning of the limb 'shallbe held in public' means that the sittings
of the Court should be open Court sittings. In fact, in Madan Mohan vsCarsons Cumberbatch and Co.01 Seneviratne, J. in his dissenting judgment,considering the effect and applicability of article 106(2) of the Constitutionhad stated that.
"Article 106 of the Constitution deals with 'public sittings'. Allauthorities, both local and foreign show that the meaning of the
limb 'shallbe held in public' means that the sittings of the
court should be open court sittings, so that any member of thepublic can attend a court sitting. The next limb 'and all personsshall be entitled freely to attend such sittings', further emphasizesthe requirements that the sitting of a court 'shall be held in public'.'Shall be held in Public' further means that any person constitutingthe public whether he has a particular or special interest in thecase or not, or not directly interested in the case, can attend courtwhen the court is sitting, 'shall be entitled to freely attend suchsittings' further means that there can be no restriction orimpediments to any person attending a court sitting except factorssuch as the accommodation available in the court, or when due tofactors set out in Article 106(2) of the Constitution the court excludespeople not directly interested in the proceedings."
The exceptions to this position specified in Article 106 of the Constitutionare the instances referred to in Article 106 of the Constitution.
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Piyasena De Silva and Others Vs.
Ven. Wimalawansa Thero and Another (Shirani Bandaranayake, J.)
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In the present instance, on a consideration of the facts of the case, it isapparent that the appellants' application does not fall within the scopedescribed in Article 106(2) of the Constitution. If a case does not comewithin the aforesaid exceptions referred to in Article 106(2), the sittings ofsuch matter will have to be held in public in terms of Article 106 (1) of theConstitution. It is not in dispute that in the instant case, the motion filedby the appellants was to intervene in the writ application instituted by the1st respondent, and that the order refusing the said motion was decidednot in open Court, but in chambers. In the circumstances, the impugnedorder of the judge of the Court of Appeal is contrary to the provision containedin Article 106(1) of the Constitution and accordingly the said order becomesillegal.
Learned Counsel for the appellants submitted that the application ofthe 1st respondent in the main matter in case No. CA 1978/2004, wasmade in terms of Article 140 of the Constitution. His contention was that,in terms of Article 146(2)(iii) of the Constitution, the jurisdiction of theCourt of Appeal in respect of its powers as contained in Articles 140,141,142 and 143 should be exercised by not less than 2 judges of the Court,unless the President of the Court of Appeal by general or special orderotherwise directs. On a consideration of Article 146(2)(iii) it is apparentthat unless there was a general or a special order made by the Presidentof the Court of Appeal, directing otherwise, the case in question shouldhave been heard by 2 judges of the Court of Appeal. As borne out by theJournal Entry of 04.08.2005 (A4), the impugned order refusing theapplication for intervention was made by a single judge in chambers. Nomaterial was produced before this Court to indicate that the President ofthe Court of Appeal had given a general or a special order that the case inquestion should be heard by a single judge and according to thesubmissions of the learned Counsel for the appellants, the President ofthe Court of Appeal has appointed 2 judges to hear matters in the natureof writs. In such circumstances, the decision given by a single judge iscontrary to the provisions of the Constitution of the Republic and thereforebecomes illegal.
The next matter that has to be examined, relates to the breach of therules of natural justice in the process in which the impugned order inquestion was given. It is not in dispute that the decision to refuse theapplication of the appellants to intervene in the main matter was taken inchambers and such decision was taken without hearing the parties. A
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question thus arises at to whether such a procedure would be in breach ofthe rules of natural justice which requires consideration and let me nowexamine whether there had been any such breach of the rules of naturaljustice.
A fair administrative procedure, which would be comparable to ‘dueprocess of law’ embedded in the Constitution of the United States, isbased on the principles of granting a fair hearing to both sides. The Courtstherefore are bound to exercise the rules of natural justice, as the decisionswould not be valid if ordered without first hearing the party who was goingto suffer owing to the decision of the Court. Although the applicability andthereby the interest in the development of the well known rule “audi alteramparterrf to a wider category succeeded recently, giving a hearing to anaggrieved party had begun arguably at the beginning of the human kind.As pointed out by Fortescue, J. In ft v University of Cambridge'®, the firsthearing in human history was given in the Garden of Eden. In his words:
“I remember to have heard it observed by a very learned man uponsuch an occasion, that even God himself did not pass sentence uponAdam, before he was called upon to make his defence. 'Adam, saysGod, where art thou? Hast thou not eaten of the tree, whereof Icommanded thee that thou shouldst not eat? And the same questionwas put to Eve also."
Citing the aforementioned, referring tb the principle in question as a'picturesque judicial dictum', Professor Wade, describes it is a 'niceexample of the old conception of natural justice as divine and eternal law'.
Since the decision in ft v University of Cambridge (Supra) severaldevelopments have taken place in the sphere of the rules of natural justiceand in the present day context, the said rules apply not only to those whoare carrying out judicial functions, but also to officers in certain instances,exercising administrative power. Lord Denning M. R., in Schmidt v Secretaryof State for Home Affairs1® stated that,
"an administrative body may, in a proper case, be bound to give
a person who is affected by their decision an opportunity of makingrepresentations. It all depends on whether he has some right or interest,or, I would add, some legitimate expectation of which it would not befair to deprive him without hearing what he has to say."
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Piyasena De Silva and Others Vs.
Ven. Wimalawansa Them and Another (Shirani Bandaranayake, J.)
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Thus it is abundantly clear that the legal concepts pertaining to rules ofnatural justice with specific reference to the need to grant a hearing toparties have developed to such great lengths extending the applicability ofsuch rules even to inquires carried out by administrative bodies.
In such circumstances, when there is constitutional provision to theeffect that 'the sittings of every Court, tribunal and other institutions shallbe held in public, that would necessarily encapsulate the need for theparties before Court to present their case. As pointed out by S. A. deSmith, (Judicial Review of Administrative Action, 4* Edition 1980, pg. 200)what the audi alteram partem rule guarantees is an adequate opportunityto appear and to be heard.
Justice Amerasinghe, in his Treatise on Judicial Conduct, Ethics andResponsibilities (Vishva Lekha, 2002, pg. 782) refers to the right to beheard and is of the view that a judge cannot decide a matter without hearingthe parties. In Justice Amerasinghe's words:
"In general, however a judge cannot decide a matter without hearingthe parties; nor may a judge decide a matter before hearing both partiesto a dispute, for, it is 'an indispensable * requirement of justice that theparty who has to decide shall hear both sides, giving each an opportunityof hearing what is urged against him. *
If the position is so clear and unambiguous could it be said that ahearing should be restricted to the two sides which are opposing to eachother, and in a situation where a third party is attempting to intervene thatsuch a party should not be given an opportunity to present his case? I amof the firm view that the rules of natural justice and especially the rulerelating to a fair hearing, necessitates that all parties should be given anopportunity to present their case and thereby a fair hearing. According toJustice Amerasinghe, a Judge is expected, not only to arrive at an accuratedecision, but also to ensure that it has been fairly reached (Supra). Forthat purpose it would be essential to hear all parties, which would clearlyinclude an intervenient.
Although the law is quite clear on the general rule pertaining to the dutyto state reasons for judicial or administrative decisions, I am of the viewthat mention should be made of the usefulness in giving reasons as itcould create a sound system of judicial review
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The order dated 04.08.2005 made by the judge of the Court of Appealrefusing the intervention does not give any reasons for the refusal and theorder merely states refused'. When such an application is ref used, theapplicants may endeavour to file an appeal in the Supreme Court and forsuch purpose it would be necessary for them to know the reasons for therefusal of their motion. Without knowing the reasons for the decision of theCourt, it would be difficult for the petitioners to know whether the decisionis even reviewable. Thus without knowing the reasons a litigant may bedeprived of obtaining judicial redress and thereby protection of the law. AsS. A. de Smith (Supra, at pg. 149) has correctly pointed out, there is animplied duty to state the reasons or grounds for a decision. This theory isgenerally applicable in situations where there is provision to appeal to ahigher Court against the impugned decision. It is an accepted principlethat in the field of natural justice, a right to a hearing would include theright to have a reasoned decision (Administrative Justice, Diane Longleyand Rhoda James, Cavendish Publishing Ltd., 1999. pp. 208-209).
Notwithstanding the aforementioned, it is to be borne in mind that theprinciples of natural justice do not at present recognize a general duty togive reasons for judicial or administrative decisions (Pure Spring Co. Ltd.v. Minister of National Resources'^). Considering this position, Prof. Wadeis of the view that there is a strong case to be made for the giving ofreasons as an essential element of administrative justice (Prof. WilliamWade, Administrative Law, 9th Edition, Pg. 522). Prof. Wade (Supra) furtherstates that,
"The need for it has been sharply exposed by the expandinglaw of judicial review, not that so many decisions are liable tobe quashed or appealed against on grounds of improper purpose,irrelevant considerations and errors of law of various kinds.Unless the citizen can discover the reasoning behind thedecision, he may be unable to tell whether it is reviewable ornot, and so he may be deprived of the protection of the law. Aright to reasons is therefore an indispensable part of asound system of judicial review. Natural justice mayprovide the best rubric for it, since the giving of reasonsis required by the ordinary man's sense of justice. It isalso a healthy discipline for all who exercise power over others.
No single factor has inhibited the development of EnglishAdministrative law as seriously as the absence of any generalobligation upon public authorities to give reasons for the.irdecisions (emphasis added)".
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Piyasena De Silva and Others Vs.
Ifen. Wimatawansa Them and Another (Shirani Bandaranayake, J.)
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It is common ground that the order of the Court of Appeal dated04.08.2005 was given without indicating any reasons. It is also not disputedthat there was provision for the appellants to appeal to the Supreme Courtagainst the impugned decision. Considering the duty to give reasons fordecisions, S. A. de Smith (Supra, at Pg. 156) is of the view that, whilstconcern for the quality of administrative justice does not require that alltribunals in all circumstances comply with some universally applicablestandard, it is, nevertheless, essential that the Courts do not allow theduty to give reasons to atrophy'.
Be that as it may, what the rules of natural justice require relates to afair hearing which in the instant case had not been extended to theappellants. In such circumstances it is abundantly clear that there hadbeen a breach of the rules of natural justice.
There is one other matter I wish to deal with, based on a submissionmade by the learned Counsel for the appellants. Learned Counsel for theappellants submitted that the appellants had sufficient standing in law tobe entitled for intervention and it was illegal and wrong on the part of theHon. Judge of the Court of Appeal to refuse such intervention.
The appellants filed the Special Leave to Appeal Application againstthe order of the Court of Appeal dated 04.08.2005(A4) and prayed that thesaid order be set aside. This Court granted Special Leave to Appeal onthat basis and had heard both parties on that limited issue. In fact learnedCounsel for the 1 st respondent had no objection to granting Special Leaveto Appeal in order to consider the grant of relief to the appellants by settingaside the order of the Court of Appeal of 04.08.2005 for the appellants tosupport their application to intervene in the Court of Appeal in the interestof natural justice.
In the circumstances, the submissions pertaining to the question as towhether there was sufficient standing in law for the appellants to intervenein the application is not taken into consideration in these proceedingssince this question has to be examined by the Court of Appeal.
For the reasons aforementioned, I answer questions No. 1 and 2, referredto earlier, in the affirmative. This appeal is allowed and the order of theCourt of Appeal dated 04.08.2005(A4) is therefore set aside.
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In all the circumstances of this case there will be no costs., RAJA FERNANDO, J. — I agree.
AMARATUNGA, J. — I agree.
Appeal allowed.