THE QUEEN v. REV. H. GNANASEEHA THERO and others

062-NLR-NLR-V-70-THE-QUEEN-v.-REV.-H.-GNANASEEHA-THERO-and-others.pdf


'The Queen v. Gnanaseeha Thero
285
1967 Present: H. N. G. Fernando, C.J., and T. S. Fernando, J.
THE QUEEN v. REV. H. GNANASEEHA THERO and others
8. 0. 372(67—Application to summon a Special Jury in M.O. Colombo,
34638/A
Jury—Accused persons* election to he tried by a Sinhala-epeaking jury—Attorney -General's application thereafter to summon a special jury—Requirement ofcogent grounds—Anachronistic nature of qualifications for special jurors—Criminal Frocedure Code, ss. 165B, 222, 224, 257 (1) (6), 267 (1) (d).
Where accused persona elect, under section 165 B of the Criminal ProcedureCode, to be tried by a Sinbala-speaking jury from the list of persona referredto in section 257 {1) (fe), the Court will not override such election otherwisethan on cogent grounds if the Attorney-General makes an applicationthereafter to the Supreme Court under section 222 for an order requiring aspecial jury to be summoned to try the case against the accused. The languageand income qualifications presently set out in section 257 (1) (d) for the specialpanel of jurors are anachronic and merit re-consideration by the Legislature.
APPLICATION to summon a Special Jury.
V. 8. A. PvZlenayegum, Crown Counsel, with Wakeley Paul, CrownCounsel, for Attorney-General, in support.
Colvin R. de Silva, with K. G. de Silva, C. D. 8. Siriwardena and
L. K. Karawita, for 1st Accused.
Colvin R. de Silva, with Malcolm Perera and M. D. 8. Boralessa, for5th Accused.
Colvin R. de Silva, at their request in Court, for 7th, 8th and 9th Accused.
Colvin R. de Silva, with R. Weerakoon, for 11th and 16th Accused.
Neville Samarakoon, with Felix R. Dias Bandaranaike and NihalJayawickrema, for 4th Accused.
P. K. Liyanage, with B. M. Jayatissa Herath, for 3rd and 13th Accused.
U.B. Weerasekera, for 18th Accused.
W. Abayakoon, with Harischandra Mendis and Vernon Ooonerain*,for 14th Accused.
Prins Qunasekera, for 20th Accused.
Mohamed Nassim, for 12th Accused.
Percy Karunaratne, for 15th Accused.
jD. T. P. Rajapakse, with M. D. 8. Boralessa, for 6th Accused.
Sarath Muttetuwegama, for 17th Accused,
LXX—12
1*—H 12401—2,130 (3/68)
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H. N. G. FERNANDO, C.J.—The Queen v. Gncmaseeha Thero
Q.D. C. Weerasinghe, with. Harischandra Mendis, for 2nd Accused.Harischandra Mendis, for 10th Accused.
Stanley Tillekeratne, with Harischandra Mendis, for 19th Accused.Mangala Moonesinghe, with O. C. Wanigasekera, for 22nd Accused.
Our. adv. vult.
October 19, 1967. H. N. G. Fernando, C.J.—
22 accused have been indicted in this case of charges :—
That between the 1st day of December, 1965, and the 18th day of
February, 1966, at Maharagama, Homagama, Nugegoda,Colombo and other places, in the division of Colombo, withinthe jurisdiction of this Court, you with others did conspire towage war against the Queen, and that you have therebycommitted an offence punishable under Section 115 of thePenal Code ; and
that within the period and at the places aforesaid and in the course
of the same transaction, you with others did conspire to overaweby means of criminal force or the show of criminal force, theGovernment of Ceylon, and that you have thereby committedan offence punishable under Section 115 of the Penal Code.
In response to the inquiry made by the committing Magistrate unders. 165B of the Criminal Procedure Code, the accused elected that theJury shall be taken for the trial from the Sinhala-speaking panel, i.e.from the list referred to in s. 257 of persons who can speak, read andwrite the Sinhalese language and possessing the requisite qualificationsspecified in paragraph (b) of sub-section (1) of that section. Thereafterthe Attorney-General made an application to the Supreme Court foran order requiring a special jury to be summoned to try the case againstthe accused. That application was refused after we had heard thearguments of learned Crown Counsel, and we now state our reasons.
It was rightly submitted that the application was one made unders. 222 of the Code ; accordingly the question ■which arose was whetherthe Court considers the application for a special jury to be just and reason-able. There were two main grounds urged in support of the argumentthat the case is one which should be tried by a special jury : firstly, thatthe case is of unusual complexity in that evidence will be led at the trialof several incidents, the connection between some of which will not beeasily apparent, and that the prosecution will be relying largely, forproof of the alleged conspiracy, on inferences arising from variousincidents and from the conduct of the accused persons ; and secondly,that the prosecution will be proving confessions made by some of theaccused, the contents of which will not in law be admissible as againstothers of the accused, and that a special jury will be better able than aSinhala-speaking jury to observe the principle that a confession by oneaccused is not evidence against the others.
H. N. G. FERNANDO, C.J.—The Queen v. Gnanaaeeha Thero
267
In considering the question whether a special jury will be better qualifiedthan a Sinhala-speaking jury to cope with these anticipated difficulties,the first point which arises is whether the distinctions made in the lawbetween the special panel and the other panels reasonably ensure thatthe special panel will consist of more competent persons than those onthe ordinary panels. Under s. 257 (1) (d) the special panel consists onlyof persons who can speak, read and write the English language. Inaddition, paragraph (d) requires one of the following qualifications :—
(а)the possession of an income of not less than Rs. 3,000 a year ;
(б)in one’s own right or that of one’s wife, the possession of movable
or immovable property not less than Rs. 20,000 in value ;
(c) the enjoyment of a monthly salary of not less than Rs. 500.
Paragraph (6) of s. 257 (1) provides for a list of persons who can speak,read and write the Sinhalese language, and requires one of the followingadditional qualifications :—
(i) the possession in one’s own or in one’s wife’s right of movable orimmovable property, not less than Rs. 1,000 in value ;
(ii) an income of Rs. 500 a year.
Paragraph (c) provides corresponding requirements in the case of theTamil-speaking panel.
It will be seen that the distinctions made in s. 257 refer firstly to thematter of the language which a person can speak, read, and write, andsecondly, to the income or wealth which a person or his wife may possess.Thus s. 257 does not directly require in either case any minimumeducational qualification. Nevertheless Counsel argued that, becausethe Legislature in paragraph (tit) laid down certain qualifications for aspecial jury, it follows that the Legislature’s intention and expectationwas that persons on the special panel will be better educated and morecapable of dealing with complexities of facts and the law than personson the other panels.
I entirely agree that the Legislature -which enacted the CriminalProcedure Code in 1898 must have entertained the intention and theexpectation just mentioned. But it is necessary to consider, as theyappear from the Statute, the matters on which the Legislature reliedfor the realisation of its intention and expectation. The matter firstexpressed pertains to language, and it is manifest that the Legislature in1898 expected that persons having a knowledge of the English Languageare likely to be better educated than those having only a knowledge ofSinhala or Tamil. Having regard to the known facts concerning theeducational policy of the British Government of Ceylon and to itsconsequences, that was quite a reasonable expectation; secondaryeducation, for instance, was in 1898 and until fairly recent times impartedexclusively through the English medium, and the language of theAdministration and of Commerce was in all important respects exclusivelyEnglish. The provision in paragraph {d) of s. 257 requiring for a special
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H. N. G. FERNANDO, C.J.—The Queen v. Qnanaseeha Thero
juror the enjoyment of a monthly salary of not less than Rs. 500 didcertainly ensure the possession of a reasonably high educationalqualification and/or of commercial or administrative experience, and therecould have been in 1898 but few persons having a knowledge only ofSinhalese or Tamil language enjoying salaries at that level. In brieftherefore s. 257 was based on a perfectly valid assumption that a person onthe special panel would in many respects be a more competent juror thanpersons of the other panels. It follows therefore that for many yearsafter 1898 it would have been just and reasonable in a fit case to directthat it be tried by a special jury.
But I am satisfied that the assumption validly made by the Legislaturein 1898 no longer holds good having regard to the radical change ofcircumstances which has taken place in this country particularly afterIndependence. It is a matter of common knowledge that the majorityof those who now complete secondary education receive their educationin the Sinhala medium and not in English. It is also a matter of commo nknowledge that even the minority which receives secondary educationin the English medium no longer possesses a proficiency in the Englishlanguage in any way comparable to the proficiency attained in thatlanguage prior to the 1940s.
The figures of recent University entries establish that the majorityof the young people who are now competitively selected for Universityeducation have little or no knowledge of the English language, so thatthere has come a stage when the majority of those possessing superioreducational qualifications will not on the ground of language be eligiblefor the panel of special jurors. Thus the principal ground for theassumption which led the Legislature in 1898 to lay down the languagequalifications specified in paragraph {d) of s. 257 is no longer valid.
Passing now to the income qualification, here again it may have beenreasonable to suppose at the beginning of this century that the require-ment of an annual income of Rs. 3,000 or of the possession of propertyworth Rs. 20,000 would secure that persons on the special panel wouldbe better educated than others in less affluent circumstances, but havingregard to the changes in the real value of money, the limits imposed inparagraph (d) are far too low to justify a similar expectation at thepresent time.
Counsel attempted to equate what he termed the complexity of thepresent case to the complexity which might arise in a case in which theevidence relates to involved accounts or matters of business practice.In a case like the present one, the functions of the Jury will not be extra-ordinary ; their task will be to decide such matters as whether a particularincident did occur, whether a person said or did something on a particularoccasion, whether one accused was aware of some purpose which anothermay have entertained, whether an inference of guilt should be drawnfrom matters held to have been proved. That in no way resembles thetask of the Jury in a case in which the evidence cannot be properly
H. N. G. FERNANDO, C.J.—The Queen v. Qnanaaeeha Thero
269
understood save by persons possessing some knowledge or experienceof accounting, commercial or scientific matters. Even if persons havingthe qualifications set out in paragraph (d) of s. 257 (1) of the Code may bemore competent than others to serve as jurors for a case of the lattertype, we are not here concerned with such a case.
On the grounds discussed above, it does not appear to me reasonableto deprive the accused in this case of the right they have exercised unders. 165B to be tried by a Sinhala-speaking Jury.
There is the further consideration arising under s. 222 whether or notit is just that the case be tried by a special jury, when the accused haveexercised their statutory right of election that they be tried by a Sinhalese-speaking jury. The second argument of learned Crown Counsel is relevantto this matter. He suggested that a Sinhalese-speaking jury may beless able than a special jury to keep out of consideration as against someaccusod confessions alleged to have been made by other accused. Inother words, he urged that a special jury was advisable in the interestsof the defence. Had the accused made no objection, then perhaps itwas incumbent on the Court to consider whether the interests of thedefence would be better served by the empanelling of a special jury.But when the accused themselves have elected a Sinhalese-speakingjury, and when they have through their Counsel intimated their objectionto a special jury, it would be gratuitous and, as my brother remarked,patronizing, for the Court, in the supposed interests of the accused,to over-ride a choice freely made by the accused and their advisers.
I presume that some of the witnesses at the impending trial will givetheir evidence in English ; if so, it is not the practice for that evidenceto be translated into Sinhalese at a trial before an English-speakingjury. One of the advantages thereforo which the accused will enjoy iftried according to their choice, is that they will bo able personally tounderstand all the evidence, and thus to instruct their Counsel moreusefully.
I do not propose to discuss the other practical advantages which theLegislature must bo presumed to have intended to afford to accusedpersons by the exercise of their right to choose the particular languagespeaking panel from which juries should be drawn. But having regardto the clear right of election thus conferred, justice will not appear tobe done if this Court were to over-ride such an election otherwise thanon cogent grounds. I have tried to show already that no sufficientgrounds have been made out in this case.
The rejection by this Court of the accuseds’ choice to be tried by aSinhalese-speaking jury, at a time when Sinhala is generally the language ofofficial business and education and often the language of the Legislature’sdeliberations, can confuse and perplex the mind of the public and solead to distrust of our Courts. That is an evil which all those concernedin the administration of justice must be watchful to avert.
1**—H 12401 (3/68)
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H. X. G. FERNANDO, C.J.—The Queen r. Gnatutsceha Thero
Learned. Crown Counsel repeatedly stated that in previous cases aspecial jury has been ordered although the accused’s election unders. 165B had been only for an ordinary jury. The instance to which heoften referred was the trial concerning the assassination of the latePrime Minister, Mr. Bandaranaike. In that case apparently the accusedhad elected to be tried by an English-speaking jury, and the Courtacceded to an application by the accused themselves for a special jury.In the result the accused were yet tried according to their own choicebecause a special jury under s. 257 is always English-speaking. Noquestion there arose of the Court over-riding the election made by theaccused. For this reason that particular instance is not favourable,but is rather opposed, to the present application.
The case of The King v. Nadarajah1 does not support the Crown inthis case. There the prisoners had elected under s. 165B to be tried byan English-speaking jury in a case expected to be heard in the NorthernCircuit ; the Attorney-General thereafter transferred the case to theWestern Circuit at Colombo, and the prisoners then applied to betried by a Tamil-speaking jury. That application did not fall unders. 222 of the Court, but instead under s. 224. The trial Judge relied uponthe provision in s. 165B that an accused is bound by his election underthat Section ; and in refusing the application for an alteration of theelection, the Judge exercised his discretion under s. 224. No questionarose in that case, as in this one, of over-riding the election made unders. 165B.
The case of The King v. Thelenis Appuhamy2 was again one of anapplication not under s. 222, but under s. 224. That fact suffices todistinguish the case. True it was that tho accuseds’ election of a Tamil-speaking jury was there over-ridden by an order of Court under s.224,but it is clear that tho trial Judge made his order because of the peculiarcircumstance that Sinhalese accused had in that case elected to be triedby a Tamil-speaking jury upon grounds which in the opinion of tho trialJudge were quite unreasonable.
The instances to which Counsel referred during his argument affordno grounds for holding that in the present case it ■would be just to orderthese accused to be tried by a special jury.
One last observation is necessary. I must not be understood to holdtho opinion that special panels of jurors are no longer necessary forcriminal trials. But I do think that the qualifications presently set outin s. 257 of the Code for the special panel are anachronic and meritreconsideration by the Legislature.
T. S. Fernando, J.—I agree.
Application refused.
1 (1945) 46 N. L. It. IDS.
– (1945) 46 N. L. E. 504.
T. S. FERNANDO, A.C.J.—Razeem v. Xazeer
271
1967Present : T. S. Fernando, A.C.J., and Sirimane, J.
A. H. M. RAZEEM. Appellant, and A. M. NAZEER, Respondent
S. C. 18 of 1966—In the matter of an Application for a Mandatein the nature of a Writ of Quo Warranto challenging the right ofan elected member of the Colombo Municipal Council to hold office
Quo warranto—Member of Municipal Council—Allegation of disqualification on theground that he in not a citizen of Ceylon—Burden of proof—Presence of amember's name in register of voters—Effect—Local Authorities ElectionsOrdinance (Cap. 2fi2), ss. 8, 0 (1), 10, 18—Citizenship Act (Cap. 349), s. 2 (2).
The applicant applied for a writ of quo warranto against the respondent on theground that the latter, who was elected to represent a Ward of the ColomboMunicipal Council to sit and vote as a member thereof, was disqualified undersection 9 (I) of the Local Authorities Elections Ordinance for membership ofthe Council in that he was not a citizen of Ceylon.
Held (i) that the onus of satisfying the Court that the respondent was not acitizen of Ceylon was on the applicant.
(ii) that the fact that the respondent’s name was on the register of voters wasnot a bar to the present application. The right to bo elected to membership ofthe Council and the right to sit and vote as a member thereof are not one andthe same thing.
A PPLICATION for a writ of quo warranto challenging the right of anelected member of the Colombo Municipal Council to hold office.
R. S. R. Coomarasivamy, with Rajah Bandaranayake, NihalJayawickrama and S. S. Sahabandu, for the applicant.
//. W. Jayetvardene. Q.C., with Izadeen Mohamed and S. C. Crossette-Thambiah, for the respondent.
Cur. adv. vult.
November 10, 1967. T. S. Fernando, A.C.J.—
This was an application filed questioning the right of the respondent, aperson elected to represent Ward No. 16 of the Colombo Municipal Council,to sit and vote as a member thereof. The sole allegation upon which theapplication was sought to be supported was that the respondent wasdisqualified for membership of the Council in that he is not a citizen ofCeylon as required by section 9 (1) of the Local Authorities ElectionsOrdinance (Cap. 262). The onus of satisfying this Court that therespondent is not such a citizen was undoubtedly on the applicant and,at the conclusion of the hearing, we w'ere not satisfied that that onus11ad been discharged. We therefore dismissed the application with costs.
We wish, however, to refer to a point taken by Mr. Jayewardene byway of a preliminary objection to the maintenance of this application.He pointed to the fact that, at the time of the preparation of the electorallists, an objection to the inclusion of the respondent’s name in the relevantelectoral list had been lodged on the ground that he was not a citizen ofCeylon, and had been inquired into and decided in favour of the
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Lydiya v. Kiriukkuivci
respondent. In these circumstances, Mr. Jayewardene claimed that itis now too late for any person to question the respondent’s right to sit onthe Council after a valid election. He cited in favour of this claim anunreported decision of this Court (S. C. Application No. 94 of 1960—S. ('.Minutes of March 7, 1960) made by Sinnetamby J. to the effect that solong as an elected member’s name remains on the register of voters anapplication for a writ of quo warranto cannot be entertained. We wish tostate, with all respect to that learned judge, that the right to be elected tomembership of the Council and the right to sit and vote as a memberthereof are not one and tho same thing. While a person whose name hasbeen finally entered on the electoral list and who has the residential quali-fication specified in section 8 of the Local Authorities Elections Ordinanceis qualified for election to membership of the Council, section 10 of thesame Ordinance disqualifies the member from sitting or voting if he isdisqualified by reason of the operation of any of the provisions of section 9.One of such provisions, as already indicated above, requires the member tobe a citizen of Ceylon. For this reason we found ourselves disposed notto follow the decision referred to above. We need only add that, if adecision of an elections officer under section 18 of the Local AuthoritiesElections Ordinance has the far reaching effect implicit in tho judgmentabove referred to, it is capable of leading to a practice of obtainingdecisions from an elections officer in favour of intending candidates formembership of a Council by objections lodged in collusion with suchcandidates, a phenomenon which cannot be brushed aside as unlikely inthis Country. Moreover, it can render nugatory the provisions of section2 (2) of the Citizenship Act (Cap. 349) under which a person becomesentitled to the status of Ceylon citizenship only in the ways specifiedtherein.
Sirimane, J.—I agree.
Application dismissed.