SENEVIRATNE v. TISSA DIAS BANDARANAYAKE AND ANOTHER

034-SLLR-SLLR-1999-V-2-SENEVIRATNE-v.-TISSA-DIAS-BANDARANAYAKE-AND-ANOTHER.pdf


sc
Seneviratne v. Tissa Dias Bandaranayake and Another
341
SENEVIRATNE
V.TISSA DIAS BANDARANAYAKE AND ANOTHER
SUPREME COURTAMERASINGHE, J..
DHEERARATNE, J. ANDWIJETUNGA, J.
S.C. APPLICATIONNO. S.C./SPL (WRIT) 3/98COURT OF APPEAL APPLICATIONNO. C.A. 676/98MAY 20. 1999.
Writ of Certiorari – Report of a Commission of Inquiry under the SpecialPresidential Commissions of Inquiry Law – Jurisdiction of the Court – Audi alterampartem rule – Sections 9 (2), 16 and 18 of the Law – Duty of the Commissionersto personally hear both sides – Abdication of the authority of the Commission.
The President acting under section 2 of the Special Presidential Commissionsof Inquiry Law, No. 7 of 1978 as amended, appointed a Commission of Inquiryto inquire into the circumstances relating to the assassination of Lalith WilliamAthulathmudali and certain antecedent attacks on him. The Warrant, inter alia,authorised the Commission to obtain information as to whether there was a failureor omission on the part of any public officer to perform any duty required of himby law in relation to the investigations into the matters referred to in the warrantand whether there was a failure to provide or intentional withdrawal of securityby the authorities at the public meeting at which the late Athulathmudali wasassassinated, if so the identity of the person or persons responsible for suchconduct.
Acting on information furnished by a team of police officers deputed by theCommissioners to interrogate certain persons at which the Commissioners werenot present, the Commission found the petitioner (a Deputy Inspector-Generalof Police) and other police officers guilty of omissions and failures to perform theirduty regarding certain attacks on late Athulathmudali and of conduct which constitutedassisting the assassination and recommended disciplinary action and prosecutionfor any offences which the petitioner and other officers may have committed.
342
Sri Lanka Law Reports
[1999] 2 Sri LR.
Held:
There was no failure on the part of the petitioner to produce materialsand records necessary to establish his case such as pleadings andobjections. He need not have produced any material other than theReport of the Commission on which he relied.
The petitioner was not guilty of delay in making his application. He hasacted with due diligence.
The jurisdiction of the Court to review the findings of the Commissionsis not precluded by sections 9 (2) and 18 of the Special PresidentialCommissions of Inquiry Law, No. 7 of 1978 as amended by Act No. 4of 1978. (B. Sirisena Cooray v. Tissa Bandaranayake and two others (1999)1 Sri LR. 1; T. Wijayapata Hector Mendis v. P. R. P. Perera and othersS.C. Special (Writ) No. 2/98 S.C. Minutes 27 April. 1998 followed).
The jurisdiction of the Court is also not ousted by reason of the fact thatthe application was made after the Commission had become defunct.
Having regard to the adverse consequences of its findings the Commissionwas obliged to act fairly and was subject to the attdi alteram partem rule(B. Sirisena Cooray's decision followed).
In reaching its findings against the petitioner the Commission abdicatedits authority to the team of police officers who collected information forthe Commission. The Commission failed to comply with section 16 of theLaw when the petitioner became, in the opinion of the Commission, aperson whose conduct should be subject to inquiry or who was implicatedor concerned in the matter under inquiry. This failure deprived the petitionerof the opportunity to present his case which he was entitled to undersection 16 and resulted in the unlawful and unwarranted condemnationof the petitioner.
Cases referred to:
B. Sirisena Cooray v. Tissa Bandaranayake and others (1999) 1 Sri LR 1.
Wijayapata Hector Mendis v. P. R. P. Perera and others SC Special (writ)No. 2/98 SC Minutes 27 April, 1999.
Re Brook 16 CBNS 416.
APPLICATION for a writ of certiorari against the Special Presidential Commission
of Inquiry.
sc
Seneviratne v. Tissa Dias Bandaranayake and Another
(Amerasinghe, J.)
343
K.N. Choksy, PC with S. C. Crosette-Thambia, M. D. K. Kulatunga, V. K. Choksyand Kishani Wijetunga for the petitioner.
Wijedasa Rajapakse with Dhammika Liyanage and Vijith Perera for the 1strespondent.
D. P. Mendis with M. W. B. Ekanayake for the 2nd respondent.
Cur. adv. vult.
July 7, 1999.
AMERASINGHE, J.
On the 7th of December, 1994, Her Excellency the President inpursuance of the provisions of section 2 of the Special PresidentialCommission of Inquiry Law, No. 7 of 1978 (as amended by the SpecialPresidential Commissions of Inquiry) (Special Provisions) Act No. 4of 1978 appointed the Hon. Mr. Justice George Randolph Tissa DiasBandaranayake, the Hon. Mr. Justice Dassanayake Padmasiri SwamajithGunasekera and Mr. Rajasuriya Appuhamilage Nimal GaminiAmaratunge as Commissioners to inquire into and obtain informationin respect of the following matters:
"(a) the circumstances relating to the assassination of the late LalithWilliam Athulathmudali at a meeting held at Kirulapone, onApril 23, 1993, and the person or persons directly or indirectlyresponsible for such assassination and whether any personsconspired to assassinate, or aided and abetted in assassinatingthe said Lalith William Athulathmudali at Kirulapone on April23, 1993.
(b)the circumstances relating to the physical attacks on the late
Lalith William Athulathmudali –
at Pannala on November 3, 1991;
at Madapatha, Piliyandala, on April 23, 1992;
344
Sri Lanka Law Reports
[1999] 2 Sri LR.
at the Fort Railway Station on August 7, 1992; and
at Dehiwala on August 29, 1992;
and whether the persons involved in, or connected with, any or allof these attacks were directly or indirectly connected with or involvedin the aforesaid assassination;
whether there was a failure or omission on the part of any publicofficer to perform any duty required of him by law, in relationto investigations into the incidents referred to in paragraphs (a)and (to);
whether there was a failure to provide, or intentional withdrawalof security by the authorities at the meeting held at Kirulaponeon April 23, 1993, at which the late Lalith William Athulathmudaliwas assassinated and if so, the person or persons responsiblefor such failure or intentional withdrawal;
whether there was a failure by the authorities concerned toprovide adequate personal security to the late Lalith WilliamAthulathmudali despite repeated requests by him, for suchsecurity;
and to make such recommendations with reference to any of thematters that have been inquired into under the Terms of this Warrant."
The Warrant of Appointment further stated, inter alia, as follows:
"And I do hereby appoint you, the said Hon. Justice GeorgeRandolph Tissa Dias Bandaranayake, to be the Chairman of thesaid Commission.
And I do hereby authorise and empower you, the said Com-missioners, to hold all such inquiries and make all other inves-tigations, into the aforesaid matters as may appear to you to benecessary, and require you to transmit, to me within three monthsfrom the date hereof, a report or interim reports thereon under your
sc
Seneviratne v. Tissa Dias Bandaranayake and Another
(Amerasinghe, J.)
345
hands, setting out the findings of your inquiries, and your recom-mendations.
And I do hereby direct that such part of any inquiry relatingto the aforesaid matters, as you may in your discretion determine,shall not be held in public;
And I do hereby require and direct all State officers, and otherpersons to whom you may apply for assistance or information forthe purposes of your inquiries and investigations to render all suchassistance and furnish all such information as may be properlyrendered and furnished in that behalf
Following the resignation of the Hon. Mr. Justice Gunasekera onthe 2nd of April, 1996, Her Excellency the President appointedMr. Gunasena Wickrema Edirisooriya to be a Member of theCommission. Subsequently, Mr. Amaratunge resigned.
The respondents in the matter before us are Mr. Bandaranayake,the Chairman of the Commission, and Mr. Edirisooriya, Commissioner.
In pursuance of the Warrant, the Commission held inquiries andsubmitted its report to Her Excellency the President. The Report waspublished on the 30th of June, 1998, as Sessional Paper No. VIIIof 1997.
In regard to the petitioner the Commissioners in their reportconcluded as follows :
that the petitioner had failed to perform his duty impartiallyand according to law in that he failed to call for a report from theSenior Superintendent of Police, Mount Lavinia Division, on theinstructions given by him by his letter dated the 10th of April, 1992,regarding the incidents that followed Mr. Athulathmudali's Madapatha,Piliyandala meeting held on the 07th of April, 1992; (page 37)
346
Sri Lanka Law Reports
11993} 2 Sri LR.
that after the shooting of Mr. Athulathmudali at the Kirulaponemeeting, the petitioner and the Senior Superintendent of Police,Rukman De Silva, visited the meeting venue, found no fault withInspector of Police, Ranagala, failed to visit the Police Station whichwas very close by and examine the records, and failed to makeany remarks in the relevant record (OVB); (page 86)
that the petitioner and Assistant Superintendent of PoliceGunaratne had instructed Inspector of Police Dharmawardene tohand over the pistol (found near Ragunathan's body) and the twomagazines to Mr. Mendis, the Additional Government Analyst andnot through the Magistrate, which was unusual and improperprocedure; (page 116)
' that the petitioner had acted improperly in removing theIdentity Card (found near Ragunathan's body) before the arrivalof the Magistrate at the scene and in not presenting it to theMagistrate there; (pages 111/112)
that the petitioner's letter dated 15.04.1993 marked P80addressed to the Municipal Commissioner, Colombo, regarding thevenue of meetings of the various political parties participating inthe Provincial Council elections, "set the stage for what followed";(pages 68/69)
(/) that the said letter P80 “was deliberately and maliciously andcunningly arranged to give a veneer of propriety to an otherwisediabolical act of deception"; (page 76)
(gr) that the petitioner's answers regarding this letter P80(contained in his recorded statement) “are vague and evasive andare not acceptable. It is just plain humbug"; (page 69)
(h) that the petitioner together with the Senior Superintendentof Police Rukman De Silva, Assistant Superintendent of Police DiasSenanayake, and Inspector of Police, Ranagala, were all involvedin refusing the venue asked for, to hold the Kirulapone meetingon 23.04.1993; (page 71)
sc
Seneviratne v. Tissa Dias Bandaranayake and Another
(Amerasinghe, J.)
347
(/) that there was a conspiracy among the petitioner and thesaid Police officers to deny the market junction to the DUNFpolitical party but instead offer the playground, for the saidmeeting; (page 71)
(/) that the petitioner has been a co-conspirator with the saidInspector of Police Ranagala, the said Assistant Superintendentof Police Dias Senanayake, and others, to withdraw Police securitynormally extended for such political meetings; (page 77)
(A) that the petitioner's denial of knowing anything aboutthe said withdrawal of security from the meeting and that he hadlearnt of it only subsequently from the newspapers, is "againjust plain humbug" and that “if true, it is an utter derelictionof duty"; (page 76)
(!) that the petitioner and the said three Police officers weretogether involved in –
changing the venue of the meeting without lawful reasonfrom the market junction venue in Kirulapone, as requested, tothe park:
in giving permits for the use of loudspeakers at the parkonly:
intentionally and deliberately not providing Police strengthto cover the meeting, thereby exposing Mr. Athulathmudali tograve danger;
that the LTTE had nothing to do with any of this;(page 82)
(m) that "the investigations regarding the death of Ragunathanwere most unsatisfactory" and that those involved were thepetitioner, the eight other named Police officers and other CDBofficers; (page 217).
348
Sri Lanka Law Reports
[1999] 2 Sri LR.
The Commissioners on the basis of their conclusions referred toabove with regard to the conduct of the petitioner and the other Policeofficial in their Report at page 217 stated as follows:
“The IGP should have their conduct investigated through theentries they have made in Police Books, the omissions and failuresto perform their duty as seen in those entries and statementsrecorded by them and take some meaningful disciplinary actionagainst them. This report is replete with criticisms of their conduct.They have no doubt facilitated the commission of these crimes andhelped in the cover up – this amounts to conspiracy and abetmentof murder.''
At paragraph (1i) in the summary of the report, under the caption,"Conduct of the Police Officers", the Commissioners stated as follows:
"The conduct of the Police officers, both in regard to the physicalattacks on Athulathmudali and the part they played in assistingin the assassination and the plot to fabricate evidence has beenreferred to. The Police officers involved have been named in thereport of the Commission. As they were public officers, no doubtacting under the influence of their political masters, the Commissionhas refrained from making any recommendations as to their civicrights, but wherever they have committed offences under the PenalCode they should be prosecuted and in any case disciplinary actionshould be taken against them by the Police Department.”
At page 217 of the report, the Commissioners stated as follows:
"A large number of Police officers involved with the Kirulaponemeeting and the murder investigations are guilty of misconduct andhave been so involved because of external political influences andpressures, but are not in politics themselves; hence we do not wishto make any recommendations in terms of section 9 of Law No.7 of 1978. It is easy to record false facts and statements andadmissions and confessions and obtain detention orders on whathas been falsely recorded. It is for the Government to stem thislevel of corruption if possible. What the Commission has had to
sc
Senaviratne v. Tissa Dias Bandaranayake and Another
(Amerasinghe, J.)
349
say about the conduct of Police officers is in answer to the Terms
of Reference in the Warrant, more specifically in respect of items
and (d) in the Warrant."
The petitioner was appointed as Deputy Inspector-General of Policein 1987 and held that rank at the time of the incidents required tobe investigated by the Commission. The petitioner complains that thefindings in the report of the Commission were:
“(1) contrary to the facts and evidence placed before theCommission;
not supported and justified by evidence placed before theCommission;
based on surmise and conjecture;
based on inferences that could not be lawfully or reasonablymade in law;
wholly unreasonable or irrational;
arrived at in breach of natural justice and due and fairprocedure, by reason of the fact the petitioner was at notime notified by the Commission that the Commission wasinquiring into the petitioner's conduct;
arrived at without the petitioner being made aware of anyallegations or charges against him or being given theopportunity of explaining the same;
arrived at without observing the mandatory requirements ofsection 16 of Law No. 7 of 1978, of informing the petitionerthat his conduct was the subject of inquiry by the Commissionor that he was in any way implicated or concerned in thematters under inquiry."
350
Sri Lanka Law Reports
[1999] 2 Sri LR.
The petitioner states that the findings and the Report were ’ultravires, a violation of the due administration of justice according to law,violative of statutory duties, contained errors of law, illegalities anddepartures from due and fair procedure and natural justice and weretherefore liable to be quashed by writ of certiorari.’
The respondents submitted that the application of the petitionershould be rejected for six reasons. I shall deal with each of themseparately.
The petitioner has failed to make the former Commissioners,the Hon. Mr. Justice Gunasekera and Mr. N. G. Amaratungeas parties to this application.
The application is made for the purpose of obtaining a writ ofcertiorari to quash the findings and recommendations contained in theReport of the Special Presidential Commission of Inquiry made bythe first and second respondents. As we have seen, Mr. JusticeGunasekera and Mr. N. G. Amaratunge resigned as Commissioners.It was not alleged that they had any part in arriving at the findingsand recommendations contained in the Report of the Commission. Inmy view, it was unnecessary, and indeed, it would have been improperto have made them parties in this matter.
The petitioner has failed to place all material before the Courtand not called for any record.
Learned counsel for the respondents did not identify materials andrecords that ought to have been placed before Court, nor did theyoffer any explanation of their contention. As far as the petitioner wasconcerned, he relied solely on the material contained in the Reportof the Commission, the pleadings, including admissions contained inthe statements of objections, and the law, to establish his case and,in my view, the petitioner need not have placed any other materialbefore the Court.
The petitioner has not come to Court with clean hands.
sc
Seneviratne v. Tissa Dias Bandaranayake and Another
(Amerasinghe, J.)
351
This ground was set out in the statement of objections filed bythe first respondent, but it was not dealt with by his counsel duringthe hearing. If it was meant to suggest that the petitioner oughtnot to be heard because he was, according to the respondents, foundguilty of misconduct by the Commission, I must reject the objection,for the purpose of the petitioner's application is to have thosefindings (and the recommendations based upon them) set aside asbeing unwarranted.
The petitioner is guilty of inordinate delay in making thisapplication.
If a person were negligent for a long and unreasonable time, thelaw refused afterwards to lend him any assistance to enforce his rights;the law both to punish his neglect, nam leges vigilantibus, nondormientibus, subveniunt, and for other reasons refuses to assist thosewho sleep over their rights and are not vigilant. Indeed, theDhammapada, Appamada Vagga, 26, says:
“ Pamadamanuyunjanti
bala dummedhinho janaAppamadam ca medhavii
dhananam settham'va rakkhati."
(Fools, men of little intelligence, give themselves over to negligence,but the wise man protects his diligence as a supremetreasure. . .)
It was also said :
"Appamatto pamattesu
suttesu bahujagaroAbalassm'va sighasso
hitra yati sumedhaso"
(Heedful among the heedless, watchful among the sleeping, thewise man outstrips the foolish man as a racehorse outstrips anold horse.)
352
Sri Lanka Law Reports
[1999] 2 Sri LR.
In the matter before me, the date of the "publication" of the Reportof the Commission, is said to be “1998.01.30°. However, this is statedin the Report with regard to printing information and means no morethan the date on which the printing was completed. The act of theReport becoming publicly known took place several months thereafter.The petitioner was able to obtain a copy only in March, 1998. Thiswas not disputed by learned counsel for the respondents. In my view,the filing of this application on the 13th of July, 1998, was neitherevidence of neglect for a long and unreasonable time; nor was thepetitioner heedless or one who had given himself over to negligence.
I think he has acted with due diligence.
The Court had no jurisdiction to entertain the application.
The challenge to jurisdiction was in two ways. The first was thatthe Court was precluded by the provisions of sections 9 (2) and 18of the Special Presidential Commissions of Inquiry Law, No. 7 of 1978as amended by section 7 of the Special Presidential Commissionsof Inquiry (Special Provisions) Act No. 4 of 1978. I am in respectfulagreement with the view expressed by my brother, Dheeraratne, J.in Bulathsinghalage Sirisena Cooray v. G. R. Tissa Bandaranayakeand G. W. Edirisooriya and the Attorney-General,m and followed withapproval by my brother Fernando, J. in Thenahandi Wijayapala HectorMendis v. Hon. Justice P. R. P. Perera, Hon. Justice H. Yapa, andHon. Justice F. N. D. Jayasuriya,(Z) that the jurisdiction of this Courtto entertain an application for a Writ of Certiorari to quash the findingsof a Commission of Inquiry appointed in pursuance of the provisionsof the Special Presidential Commissions of Inquiry Law is not impededby the provisions of sections 9 (2) and 18 of that Law.
The second challenge to jurisdiction was that, since the applicationwas made after the Commission had become defunct, the Court hasno jurisdiction to entertain the application or grant any relief.
The whole scheme of appellate procedure rests on the basis thata question of review or revision would ordinarily arise after the decisionmaker's work, whether on the whole matter or a specific matter, isat an end. If the proposition advanced by the respondents is accepted,
sc
Seneviratne v. Tissa Dias Bandaranayake and Another
(Amerasinghe, J.)
353
no appeal or application for revision or review would ever be possible.That would be out of harmony with settled law and practice and reason.
. In relation to the findings and recommendations of commissions ofinquiry, any other view would have the horrendous consequence ofleaving people exposed to unwarranted findings and recommendationsthat might deprive them of their liberty, property and rights, includingthe valuable right to enjoy a deservedly good reputation. I cannot,therefore, accept the submission of learned counsel for the firstrespondent on this matter.
The reasons given and findings and recommendations are exfacie within the said warrant and the provisions of the SpecialPresidential Commissions of Inquiry Law.
Learned counsel for the respondents submitted that the taskassigned to the Commissioners under the terms of the Warrant wasto inquire into and obtain information in respect of certain specifiedmatters and to make recommendations with reference to any of thematters required to be inquired into. The Commissioners had inquiredinto the various matters referred to in the Warrant and reported theirfindings and made recommendations on the basis of those findings,as they were required to under the Warrant. No consequences flowedfrom their findings and recommendations, and therefore, there wereno decisions to be quashed by certiorari.
The Commissioners, engaged themselves not only in inquiring intocertain matters and gathering information to be submitted to HerExcellency the President, but, as we have seen, they made specificfindings of gross misconduct and criminal behaviour against the petitionerand recommended the Inspector-General of Police to take “meaningfuldisciplinary action" against the police officers concerned, includingthe petitioner. For their part in “assisting in the assassination and theplot to fabricate evidence", the Commissioners said that, as thepetitioner and other police officers were “public officers, no doubt actingunder the influence of their political masters, the Commission hasrefrained from making any recommendations as to their civic rights,but wherever they have committed offences under the Penal Codethey should be prosecuted and in any case disciplinary action should
354
Sri Lanka Law Reports
[1999] 2 Sri LR.
be taken against them by the Police Department". In the circum-stances, I cannot accept the suggestion of learned counsel for thefirst respondent that the findings and recommendations of theCommissioners were innocuous.
Dealing with the proposition that bodies such as commissions ofinquiry are neither courts of law nor even quasi-judicial tribunals,“for they decide nothing; they determine nothing. They only investigateand report", the Master of the Rolls, Lord Denning, in Re PergamonPress Ltd. [1970] 3 A11 ER 535 at 539, said:
“But this should not lead us to minimize the significance of their task.They have to make a report which may have wide repercussions. Theymay, if they think fit, make findings of fact which are very damaging tothose whom they name. They may accuse some, they may condemnothers; they may ruin reputations or careers. Their report may lead tojudicial proceedings. It may expose persons to criminal prosecutions orto civil actions. . . Seeing that their work and their report may lead tosuch consequences, I am clearly of opinion that [persons appointed toinquire and report on matters] must act fairly. This is a duty which restson them, as many other bodies, although they are not judicial orquasi-judicial, but only administrative. . ."
The views of Lord Denning were cited with approval by my brotherDheeraratne, J. in Bulathsinghalage Sirisena Cooray {supra). I ammyself in respectful agreement with the views expressed by theMaster of the Rolls. Having regard to the harmful findings and rec-ommendations of the respondents referred to above, I havebefore me as good an example as any of the imperative need forcommissions of inquiry to be fair.
Did the Commissioners act "fairly"? One of the basic requirementsof fairness is that no man shall be condemned unheard – audialteram partem. 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". Per Erie, CJ., in Re Brook,®it has long been a received rule that no. one is to be condemned,punished or deprived of his property, unless he has had an opportunity
sc
Seneviratne v. Tissa Dias Bandaranayake and .Another
(Amerasinghe, J.)
355
of being heard. In the words of the moralist and poet, Seneca,(Medea, 195):
Quicunque aliquid statuerit, parte inaudita altera, Aequum licetstatuerit, baud aequus fuerit.
The principle was one that was recognized by society in Sri Lankain Mediaeval times, if not earlier: "ubhaya paksayen ma adyanta asaganna dadek da." – (Saddharmaratnavaliya, 365).
The petitioner was condemned by the Commissioners without beinggiven an opportunity of refuting what was being urged against himby a team of twelve police officers deputed by the Commissioners.
Several explanations for that course of action were urged by theCommissioners, namely, (1) that they were empowered by law tomake use of the services of the police officers; (2) the competenceand expertise of the team of police officers; (3) that there werea large number of police officers to be examined and interrogatedand it was "impracticable" for the 'Commissioners to hear all thesepolice officers'; and (4) the need for secrecy.
At pp 75-76 of their Report, the Commissioners stated as follows:
“All police officers connected with the several inquiries regardingthe incidents contained in the warrant or who held positions ofauthority in those respective areas have been questioned by aspecial team of police officers headed by the Director, SpecialInvestigations Unit, Police Headquarters, and their statementsrecorded in relation to the evidence and statements and documentsavailable to the Commission. This was done in view of theprovisions of paragraph 3 of the warrant to ascertain whether therehas been a failure or omission to perform a duty required of apublic officer by law. Their familiarity with the provisions of thePolice Ordinance, the Criminal Procedure Code and Penal Codeand Departmental Orders and Regulations, etc., were a great help.
356
Sri Lanka Law Reports
[1999} 2 Sri LR.
The Commissioners were not present at these interrogations.
Persons interrogated were informed of all evidence, statements,documents and material (if any) against them. It was felt that thePolice department being a vital component for the maintenanceof peace and public order in the community should not be exposedto unnecessary publicity if misconduct was shown.”
The Commissioners deputed a team of police officers to interrogatecertain persons. The Commissioners admit that they were "not presentat these interrogations". Learned counsel for the respondents submit-ted that the Warrant empowered the Commissioners “to hold all suchinquiries and make all other investigations. . . as may appear to [them)to be necessary and that all State officers and other persons towhom the Commissioners may apply for assistance and informationfor the purpose of their inquiries and investigations were directed to"render all such assistance and furnish all such information as maybe properly rendered and furnished in that behalf".
Therefore, learned counsel said, the Commissioners had actedproperly. I am unable to agree with his submission. The fact that theCommissioners were authorized to obtain the assistance of Stateofficers, did not discharge them from their duty of personally hearingboth sides and giving the petitioner an opportunity of refuting whatwas being urged against them either by the investigators or otherpersons whose testimony was being recorded by the investigators. I
I am of the opinion that however much the team of police officersmay have been versed in the law and procedure, it did not permitthe Commissioners to abdicate their authority: it remained theirduty, and their duty alone, to hear the parties and form theirindependent views, for it was in their "prudence, ability and fidelity",the President repose confidence. The first respondent in his affidavitadmits that the task of the team of police officers was not merelyto gather information, but to do much more; namely, to respondto paragraph (c) of the Warrant. In paragraph 7, he stated thatthe team of police officers was directed, to "submit details of theoutcome" (the emphasis is mine) of the interrogatories and inquiries".
sc
Seneviratne v. Tissa Dias Bandaranayake and Another
(Amerasinghe, J.)
357
In paragraph 12 (b) (ii) he stated that the team of police officers was"to ascertain" (the emphasis is mine) “whether there has been a failureor omission to perform a duty required of a public officer by law asrequired by the provisions of paragraph 3 of the said Warrant". It mayhave been "impracticable" for the Commissioners to question andinterrogate a large number of police officers; but, if in their opinionany police officer was a person whose conduct should have beenthe subject of inquiry or who in the opinion of the Commission wasimplicated or concerned in any matter under inquiry, such a personought to have been so informed and heard before the Commissionarrived at any findings with regard to such a person or made anyrecommendations based on such findings. The Commissioners couldnot "ascertain", that is find out or learn for a certainty, matters theydid not themselves investigate. Yet, the Commissioners, withoutinforming the petitioner of their opinion as to his conduct being thesubject of inquiry or that he was implicated or concerned with anyof the matters under inquiry, and without hearing what he had tosay, nevertheless came to the conclusion that the petitionerwas "beyond all reasonable doubt" guilty of criminal and officialmisconduct, (see p. 82 of the Report). In the circumstances, whatthe Commissioners were expressing was not their views but theopinions of the team of police officers.
With regard to the fear of jeopardizing the interests of thePolice Department, the observations of the Commissioners in theirReport on the basis of evidence untested for veracity, may havecaused more harm than the Commissioners were at pains to avoidby not hearing the petitioner. If public hearings were regarded asharmful to public interest,, the Commissioners were empowered to holdtheir inquiries in camera. The Warrant stated as follows: “And I dodirect that such part of any inquiry relating to the aforesaid matters,as you may in your discretion determine, shall not be held in public".That direction was made in pursuance of section 2 (2) (a) of theSpecial Presidential Commissions of Inquiry Law which states thatevery Warrant issued under that Law "shall include a direction whetherthe inquiry or any part thereof shall or shall not be in public".
358
Sri Lanka Law Reports
[1999] 2 Sri L Ft.
Learned counsel for the petitioner submitted that not only was thepetitioner entitled to be heard, but that he had a statutory right tobe represented by an Attorney-at-Law. Section 16 of the SpecialPresidential Commissions of Inquiry Law states as follows:
"Every person who is specified in a Warrant issued under this Lawas a person whose conduct is the subject of inquiry under this Lawor as a person who is in any way implicated or concerned in thematter under inquiry and any person who, in the opinion of theCommission, is a person whose conduct should be the subject ofinquiry in the opinion of the Commission is in any way implicated orconcerned in the matter under inquiry shall be so informed by theCommission and shall, after he is so informed, be entitled to berepresented by one or more Attorneys-at-Law at such stage of theinquiry as is relevant thereto; and any other person who may considerit desirable that he should be so represented may, by leave of theCommission, be represented in the manner aforesaid."
Learned counsel for the second respondent submitted that, sincethe petitioner was not a person specified in the Warrant as a personwho in any way implicated or concerned in the matter under inquiry,there was no obligation on the part of the Commissioners to providethe petitioner with an opportunity of being represented by an Attorney-at-Law. I am unable to agree with his submission. The section, inmy view, contemplates two stages: At the outset, there may be aperson who is specified in the Warrant as being a person whoseconduct is the subject of inquiry or who is implicated or concernedin the matter under inquiry. Such a person would, of course, be entitledto be represented by an Attorney-at-Law. Subsequently, duringthe course of an inquiry, it may be the opinion of a Commission thata certain person whose conduct should be the subject of inquiry oris a person in any way implicated or concerned in the matter underinquiry. In such a case, section 16 makes it obligatory for the Commissionto so inform such a person of its opinion. Section 16 states that suchperson “. .. shall, after he is so informed, be entitled to be representedby one or more Attorneys-at-Law at such stage of the inquiry as isrelevant thereto. .
sc
Seneviratne v. Tissa Dias Bandaranayake and Another
(Amerasinghe, J.)
359
Although at first the petitioner was not a person specified in theWarrant as a person whose conduct was the subject of the inquiryor as a person who was in any way implicated or concerned in thematter under inquiry, he became, in the opinion of the Commission,a person whose conduct should be the subject of inquiry or who wasimplicated or concerned in the inquiry. The failure of the Commis-sioners to observe the duty imposed on them by section 16 to informthe petitioner of their opinion and the consequent failure of thepetitioner to present his side of the matter, resulted in the unlawfuland unwarranted condemnation of the petitioner.
For the reasons set out in my judgment, I make order that amandate in the nature of a writ of certiorari shall issue forthwithquashing all and singular the findings made by the first and secondrespondents against the petitioner contained in the Report of theSpecial Presidential Commission of Inquiry regarding the Assassinationof the late Lalith Athulathmudali, PC., and Connected Events,Sessional Paper No. VIII – 1997. I
I further make order that the State shall pay the petitionerRs. 25,000 as costs, for he has been driven to take legal proceedingsto set aside damaging and unwarranted allegations made against himby a body appointed by the Executive.
DHEERARATNE, J. – I agree
WIJETUNGA, J. – I agree
Application allowed.
Certiorari issued.