Legal Services and Laws of Sri Lanka


SLR-1981 Vol.1-P10

SLR - 1981 Vol.1, Page No - 10

BANDARANAIKE

V.

WEERARATNE AND OTHERS

(S. C. SPECIAL 4/80)

SUPREME COURT.

SAMERAWICKRAME, J., ISMAIL, J. AND WANASUNDERA, J.

S.C. SPECIAL 4/80-C.A. No. 2114/80.

S.C. SPECIAL 5/80- C. A. No. 2115/80.

NOVEMBER 10, 11, 12,13,1980.
Writ of certiorari- Application under article 140 of the Constitution -Special Presidential Commission established underLaw
No. 7 of 1978 as amended by Act No. 4 of1978-Recommendationsundersection9ofthesaidLaw-Impositionofcivic
disabilities-Preclusive nature of Article 81(3) of the Constitution- Conclusive nature of Speaker's Certificate.

The respondents to these two applications, members of the Special Presidential Commission establishedunderLawNo.7of
1978, as amended by Act. No. 4 of 1978, made findings against the petitioners whichtheyheldconstitutedthemisuseor
abuse of power by them and made recommendations under section 9 of the said Law that each of the petitioners be madesubject
to civic disability. Paragraphs (1), (2) and (3) of Article 81 of the Constitution provide for themodeandconditionsof
taking such action. The imposition of civic disabilities and/or the expulsion of any personfromParliament,ifheisa
Member of Parliament, is to be effected by resolution introduced by the Prime Minister with the approval of theCabinetand
passed by Parliament with a 2/3 majority after the Special Presidential Commission of Inquiry makes a recommendation tothat
effect. By the time the matter was argued the resolutions of Parliament had been passed and it wascontendedonbehalfof
the petitioners that if the findings and recommendations of the Special Presidential Commission were void on the groundsset
out by the petitioners the resolutions passed by Parliament were also invalid. Objection was taken inlimineonbehalfof
the respondents that the Court was precluded from going into or entertainingtheseapplicationsforwritsofcertiorari
inter alia by reason of the provisions of Article 81 (3) of the Constitution.

Held
The words".... no Court or tribunal shall inquire into, or pronounce upon or in any manner call in question, the validityof
such resolution on any ground whatsoever", in the latter part of Article 81 (3) of the Constitution precluded the Courtfrom
entertaining and going into the application for writ and accordingly the preliminary objection oftherespondentsmustbe
upheld and the applications for writ dismissed.

APPLICATIONS for Writs of Certiorari.
H. L. de Silva, with E. D. Wickramanayake, K. Shanmugalingam, S. Dassanayake, Gomin Dayasri and V. W Kularatne, for the
petitioner in S. C. Special 4/80.

Shiva Pasupati, Attorney-General, with K. M. M. B. Kulatunga, Additional Solicitor General and A. S. Ratnapala, State
Counsel, for the respondents.

H. L. de Silva, with E. D. Wikremanayake, K. C. F. Wijewickrema and P. Samararatne, for the petitioner in S. C. Special
5/80.

K. N. Choksy, with D. C. Jayasuriya, Senior State Counsel, for the respondents.

January 15,1981.

SAMERAWICKRAME, J.

The respondents to each of the two applications hold office as members of theSpecialPresidentialCommissionestablished
under Law No. 7 of 1978 as amended by Act No. 4 of 1978. The respondents held inquiries into the conduct of each ofthetwo
petitioners in the above applications in terms of the Warrant issued under section 2 of the saidLawNo.7of1978.The
respondents have made findings against the petitioners on allegations which they heldconstitutethemisuseorabuseof
power by them and have made in each case their recommendation under section 9 ofthesaidLawNo.7of1978thatthe
petitioner be made subject to civic disability.

Section 9(1) of Law No. 7 of 1978 reads:

"Where a commission finds at the inquiry and reports to the Presidentthatanypersonhasbeenguiltyofanyactof
political victimization, misuse or abuse of power, corruption or any fraudulent act, in relation to any court or tribunalor
any public body, or in relation to the administration of any law or theadministrationofjustice,thecommissionshall
recommend whether such person should be made subject to civic disability, and the President shall cause suchfindingtobe
published in the Gazette as soon as possible, and direct that such report be published."

Though Law No. 7 of 1978 was enacted before the promulgation of the Constitution of the Democratic Socialist Republic ofSri
Lanka, provision was made in the constitution providing for action to be taken against any personinrespectofwhomthe
Special Presidential Commission set up by the said Law, recommended should be made subject to civic disability byreasonof
any act done or omitted to be done by such person before or after the commencement of the Constitution. Sub-section(1)(2)
and (3) of Article 81 of the Constitution provide for the mode of taking such action and read as follows:

"(1) Where a Special Presidential Commission of inquiry established under the SpecialPresidentialCommissionsofInquiry
Law No. 7 of 1978, and consisting of a member or members each of whom is a Judge of the Supreme Court, Court of Appeal,High
Court or the District Court recommends that any person should be made subject to civic disability by reason of anyactdone
or omitted to be done by such person before or after the commencement oftheConstitution,Parliamentmaybyresolution
passed by not less than two-thirds of the whole number of Members (including those not present) voting in its favour:

(a) Impose civic disability on such person for a period not exceeding seven years, and

(b) Expel such person from Parliament, if he is a Member of Parliament.
Where a Special Presidential Commission of Inquiry consists of more than one member, a recommendation made by themajority
of such members, in case of any difference ofopinion,shallbe,andshallbedeemedforallpurposestobe,the
recommendation of such Commission of Inquiry.

(2) No such resolution shall be entertained by the speaker or placed on the Order Paper of Parliamentunlessintroducedby
the Prime Minister with the approval of the Cabinet of Ministers.
(3) The Speaker shall endorse on every resolution passed in accordance withtheprecedingprovisionsofthisArticlea
certificate in the following form:

"This resolution has been duly passed by Parliament in accordance with the provisions of Article 81 of the Constitution."

Every such certificate shall be conclusive for all purpose and shall notbequestionedinanycourt,andnocourtor
tribunal shall inquire into, or pronounce upon or in any manner call in question, the validityofsuchresolutiononany
ground whatsoever."

It is to be noted that the imposition of civic disabilities and/or the expulsion of such person from Parliament, if heisa
Member of Parliament, is to be effected by resolution passed by Parliament. The conditions for passing such resolution are:

(1) The Special Presidential Commission of Inquiry recommends that the person should be made subject to civicdisabilityby
reason of acts done or omitted to be done before or after the commencement of the Constitution.
(2) The resolution is passed by not less than 2/3 of the whole number of Members of Parliament (including those notpresent)
voting in its favour.
(3) Such resolution has been introduced by the Prime Minister with the approval of the Cabinet of Ministers.

These conditions are found in sub-paragraphs 1 and 2 of Article 81 and sub-paragraph 3 requires theSpeakertoendorseon
every resolution passed in accordance with the preceding provisions of the Article, acertificatethatithasbeenduly
passed by Parliament in accordance with the provisions of Article 81 of the Constitution.

Mr. H. L. de Silva submitted on behalf of the petitioners,emphasisingtheword"passed",thatthecertificatemerely
testifies to the fact that it has been passed by not less than 2/3 of the whole number of members and perhapsalsothatit
has been introduced by the Prime Minister with the approval of the CabinetofMinisters.Weareunabletoacceptthis
submission and are of the view that the Speaker's certificate is broader in scope and relates to all theconditionsofthe
passing of the resolution in terms of article 81 referred to above by us. For example, we note that thecertificateofthe
Speaker marked R18 in application No. 4 of 1980 does refer to the findings and recommendationoftheSpecialPresidential
Commission. It also states that the resolution which was in fact moved by the Prime Minister hadreceivedtheapprovalof
the Board of Ministers and had been duly passed in Parliament in accordance with the provisions ofArticle81.Thelatter
part of sub-paragraph (3) of Article 81 states that such certificate of the Speaker shall be conclusive for all purposesand
shall not be questioned in any court and that no Court or tribunal shall inquire into, or pronounce uponorinanymanner
call in question, the validity of such resolution on any ground whatsoever.

Learned Counsel appearing for the respondents submitted in reliance on the last part of Article 81 (3) thatthisCourtwas
precluded from entertaining the application for Writ and going into it. They also raised objection in limineinrespectof
the applications on certain other grounds. We heard arguments in respect of these objections in respect of bothapplications
together and this order is made in respect of that matter.

In their original applications, which were filed before the resolutions were passed, the petitioners stated that notice ofa
motion has been given in Parliament for a resolution to be moved by the Prime Minister with the approval oftheCabinetof
Ministers in terms of Article 81(2) of the Constitution to impose civic disabilities and in the caseofthepetitionerin
No. 4 of 1980, to expel her from Parliament. They further stated that by reason ofthefactsthereaftersetoutinthe
petition, such a resolution by Parliament would constitute a grave violation of their legalandconstitutionalrightsand
freedoms and would cause irreparable harm and injury. Their position was that the findings against them werenullandvoid
and the recommendations based on such findings were equally null and void on thegroundssetoutinthepetitions.The
petitioners have thus indicated that the findings, recommendations and the resolutions were inextricably connected witheach
other. By the time the matter was argued, the resolutions hadbeenpassedandMr.H.L.deSilvaappearingforthe
petitioners submitted that if the findings and recommendations of theSpecialPresidentialCommissionwerevoidonthe
grounds set out by him, the resolutions passed by Parliament were also invalid. He submitted that if afindingismadeby
this Court that the findings and resolutions of the Special Presidential Commission were void, then Parliament,themembers
of which had taken an oath to uphold the Constitution, would have an imperative duty to rescind the resolutions.Hefurther
submitted that even if this Parliament did not do so, a future Parliament might well do so.

It is necessary to examine the objection in limine based on Article 81 (3) to this Courtentertainingandgoingintothe
application of the petitioners to have the findings and recommendations of the respondents quashed as being null and void.A
valid finding and a valid recommendation by the Special Presidential Commission of Inquiry is no doubt a necessarycondition
to the passing of a resolution by Parliament for imposing civic disabilities and/or expelling a personfromParliament.As
set out earlier in this judgment, a certificate of the Speaker that the resolution had been duly passedinaccordancewith
the provisions of Article 81 constitutes inter alia a statement that there has beenafindingandrecommendationbythe
Special Presidential Commission. Once a resolution has been passed and the certificate by the Speaker endorsed onit,there
is a preclusive clause in sub-paragraph (3) of Article 81 which comes into force. It is thecontentionoftherespondents
that thereafter it is not open to any Court, tribunal or person to seek to impeach the subsistence of anyofthenecessary
conditions for passing the resolution. There are two aspects of the preclusive clause that requires consideration. Thefirst
part of such clause states:

"Every such certificate shall be conclusive for all purposes and shall not be questioned in any Court."
Since the certificate contains in effect the statement that therehasbeenafindingandrecommendationbyaSpecial
Presidential Commission, does this provision in the preclusive clause preclude the Court from entertaining an applicationto
declare that the finding and recommendation were void as such a declaration is tantamount to holding that there hadbeenno
finding or recommendation that would constitute the necessary condition for passing the resolution?Wherebycertification
procedures certain evidentiary material is stated to be conclusive, it means that it is to someextenttoberegardedas
absolute evidence of the facts so stated. In this case, the certificate is to be "conclusive for all purposes." Intheface
of such a strong and absolute provision, it is a matter of doubt, to put it at its lowest, whether it is open tothisCourt
to permit matters to be gone into for the purpose of showing that the recommendations and findings were void and didnotin
fact exist as a necessary condition for the passing of the resolution.
The second part of the preclusive clause is in a sense wider and more sweeping. It states:

". ..and no Court or tribunal shall inquire into, or pronounce upon or in any manner call in question, the validityofsuch
resolution on any ground whatsoever."

The issue of a writ quashing the findings and recommendation oftheSpecialPresidentialCommissionwouldamounttoa
decision that one of the necessary conditions for passing a resolution didnotinfactexist.Ifthevalidityofthe
resolution was capable of being called in question, one way of doing it is to show that anecessaryconditionforpassing
the resolution did not in fact exist. It is true that in thisapplicationwhatthepetitionersseektoquasharethe
findings and recommendations of the Special Presidential Commission but the granting of a writ would necessarilyimplythat
the resolution was invalid. There is a general rule intheconstructionofStatutesthatwhataCourtorpersonis
prohibited from doing directly, it may not do indirectly or in a circuituous manner. But quite apart from suchgeneralrule
of construction, there is in this preclusive clause itself express words to indicate this. It states, inter-alia:

"No Court or tribunal shall ... in any manner call in question the validity of such resolution on any ground whatsoever."
It is the position of the petitioners themselves that they are seeking to show that the resolutions passed by Parliamentare
not valid and that they expect that Parliament will in due course rescind the resolutions. Havingregardtothenecessary
effect of granting a writ and the expressed purpose of the petitioners in seeking it, I cannot resist the conclusion thatif
this Court were to entertain the Application and go into it, it would be acting inviolationofthesecondpartofthe
preclusive clause. In my view, the effect of the issue of a writ quashing the recommendations andfindingsoftheSpecial
Presidential Commission would be in some manner to call in question the validity of the resolutions.

We were referred to decisions of the English Court which showed that schemes prepared under Statute for approvalbyoneor
both houses of Parliament or statutory orders that had been approved by one or more housesofParliamenthadbeenstruck
down by the issue of a writ. These cases deal essentially with the subordinate functions of Parliament and innosuchcase
was there a preclusive clause in such extensive terms and in the fundamental law itself as isfoundinclause81ofthe
Constitution. These cases are, therefore, of no real assistance.

In view of the findings I have arrived at on this objection, it is unnecessary to consider theotherobjectionsinlimine
raised by the respondents. They require careful consideration of the matters for and againstraisedbycounseloneither
side.

I am conscious of the fact that this decision meansthatwithoutgoingintothefactualaspectsofthepetitioners'
complaints, because of a preliminary legal objection the petitioners are declared disentitled to aremedyinamatterin
which each of them rightly or wrongly feels that he or she has a serious grievance toplacebeforeCourt.Wearefaced,
however, with a provision of the fundamental law, the Constitution. This Courthasbeengiventhesolejurisdictionto
interpret the Constitution. This Court is also vested with jurisdiction in respectoffundamentalrightsgrantedbythe
Constitution and certain other matters arising under the Constitution. There is, therefore, a peculiar duty restingonthis
Court to uphold and give effect to a provision of the Constitution and we have no alternative but to givepropereffectto
the preclusive clause in Article 81 (3). In fairness to the respondents, we must say that we have notgoneintothefacts
and we have formed no view whether or not the allegations made by the petitioners are well founded.

In the result, we make order dismissing both applications and we direct the petitioner in eachapplicationtopaytothe
respondents jointly Rs. 1,500 as costs.

ISMAIL, J. - I agree.
WANASUNDERA, J. - I agree.
Applications dismissed.


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