Legal Services and Laws of Sri Lanka
SLR - 1984 Vol.1, Page No - 319
VIVIENNE GOONEWARDENE AND THREE OTHERS
SAMARAKOON, C. J., SHARVANANDA, J., WANASUNDERA, J., WIMALARATNE, J.,
COLIN THOME', J., RANASINGHE, J. AND RODRIGO, J.
S. C. No 6/83 SPECIAL - S. C APPLICATION No. 20/83.
JANUARY 16, 17, 23, 24, 25, 26, 27 AND 31, 1984.
Per incuriam rule - Revisionary and inherent powers of the Supreme Court to review its own judgment - Natural Justice -Audi
alteram partem - Justice must be seen to be done - Articles 126 (2) and (4) and 134 (3) of the Constitution-Rule65(1)
and Rule 65 (4) (ii) of the Supreme Court Rules.
The petitioner-respondent (Mrs. Vivienne Goonewardena) made an application (S.C. 20/83) to the SupremeCourtallegingthat
the 1st respondent (Hector Perera, Officer-in-Charge of the KollupitiyaPoliceStation)hadillegallyarrestedherand
subjected her to cruel, inhuman and degrading treatment in violation of her fundamental rights setoutinArticle11and
Article 13 (1) of the Constitution. She made parties to her application the Inspector-General of Police (2nd respondent)and
the Attorney-General (3rd respondent). The 1st respondent denied the allegations against him. The 2ndrespondentfiledhis
affidavit along with two affidavits one of which was an affidavit by the present petitioner (V. Ganeshanantham)whoaverred
that it was he who had arrested the petitioner-respondent but that his arrest was legal. The petitioner claimedhearrested
the petitioner-respondent on the pavement of the Galle Road when she was goinginaprocession.Neitherthepetitioner-
respondent nor any one else in the procession was able to produce a permit to go in the procession. Astheprocessionwas
being conducted "without the authority of a lawful permit" it became the petitioner's duty to prevent the procession.
A Bench of three Judges of the Supreme Court heard the case and held-
(1)That the petitioner-respondent had not established that she had been subjectedtocruel,inhumanand degrading
treatment by the first respondent.
(2)That the petitioner-respondent had been arrested by the petitioner and not by the 1st respondent.
(3)That the said arrest was unlawful and therefore the State was liable in damages fixed at Rs.2,500.
No order for damages or costs was made against the petitioner.
The petitioner sought relief from the Supreme Court complaining that another Bench of the Court had, to his detriment,acted
per incuriam as set out below and claiming relief in the exercise of the revisionary and inherent powers of the Court:
(1)The Court had made a finding against the petitioner inrespectofaninfringementnotcomplainedofby the
petitioner-respondent and in fact disowned by her. Such order was in disregard of Article 126 (2) oftheConstitutionread
with Rule 65 (1) (a) of the Supreme Court Rules.
(2)The power to grant relief or give directions which the Supreme Court deems just andequitableunderArticle 126
(4) was restricted to the petitioner-respondent's allegation and complaint to Court under Article 126 (2).
(3)In any event the Court acted in disregard of-
(i) Article 126 (2) read with Rule 65 (1) and Rule 65 (4) (ii) of the Supreme Court Rules.
(ii)The rule of natural justice - audi alteram partem.
(iii) The rule of natural justice that justice must be seen to be done.
On the question of the non-observance of the rules of natural justice the petitioner's complaint is that the Court hadfound
him guilty of unlawfully arresting the petitioner-respondent and thereby violating herfundamentalrights.Thesefindings
were made against him without his being first informed that his conduct was being inquired into, no opportunity was givento
him of defending himselfand he was not a party to the proceedings nor added as a party.
(1)The Supreme Court has no jurisdiction to act in revision of cases decided by itself.Noneoftheprovisions of
the Constitution expressly conferring jurisdiction confer such a jurisdiction on it. Nor has the Legislatureconferredsuch
a jurisdiction by law. The Supreme Court if a Court of last resort in appeal and there is finality initsjudgmentwhether
it is right or wrong. That is the policy of the law and the purpose of Chapter XV of the Constitution.
(2)As a superior Court of record the Supreme Court has inherent powers to correct its errorswhichare demonstrably
and manifestly wrong and where it is necessary in the interests of justice Decisions madeperincuriamcanbecorrected.
These powers are adjuncts to existing jurisdiction to remedy injustice - they cannot be made the source of newjurisdictions
to revise a judgment rendered by that court.
(3)The jurisdiction granted to the Supreme Court by Article 126 of the Constitution concernsfundamentalrights and
language rights declared by Chapters III and IV of the Constitution. In exercising this jurisdiction the Court, hastomake
a dual determination, viz: -
(i) that there is an infringement or threatened infringement of a fundamental right and
(ii)that such infringement or threat is by executive or administrative action.
Held further: Ranasinghe J. and Rodrigo J. dissenting-
(4)It may not always be possible for a petitioner to allege in his petition that the act complained of was thatof a
particular officer of State. Even where the infringement of fundamental rights is found to have beencommittedbyaState
Officer other than the one named in the petition the Court would still have powertoactintermsofArticle126.The
jurisdiction of the Court does not depend on the fact that a particular officer is mentioned by name nor isitconfinedto
the person named. The unlawful act gives the Courtjurisdictiontoentertainthepetitionandtomakeadeclaration
accordingly. The fact that it was committed by an officer of State empowers the Court to grant a remedy.Theprovisionsof
Article 126 (2) (unlike Article 126 (3)) does not limit inquiry to the person namedinthepetition.Therehasbeenno
disregard of the provisions of Article 126 (2) read with Rule 65 (2) and (4) (ii).
Per Samarakoon, C.J.-
"It will be a travesty of justice if, having found as a fact that a fundamental right has been infringed or is threatenedto
be infringed, it this Court) yet dismisses the petition because it is established that the act was not thatoftheofficer
named in the petition but that of another State Officer, such As a subordinate of his. This Court hasbeengivenpowerto
grant relief as it may deem just and equitable - a power stated in the widest possible terms. It willneitherbeJustnor
equitab1e to deny relief in such a case."
(5)Rule 65 merely states that the petitioner shall name the person who he allegeshascommittedtheunlawful act.
This by no means exhausts the avenues available to a petitioner It does not provide for a situation where thepetitioneris
unable to name the officer of State who commas the act. Furthermore Rule 65 concerns procedure and like,mostrulescannot
detract from the powers of Article 126.
Per Wanasundera, J. -
"Article 126 of the Constitution shows that in an application that Article the accusation is made against the Stateandthe
State through its principal Law Office, the Attorney-General, is required to defend the action. Itisalegalrequirement
that the Attorney-General should be heard."
"The Rules cannot derogate from the substantiveconstitutionalprovisionsandalterthenatureandcompositionofa
proceeding under Article 126 ......... A proceeding under Article 126 is against the State and theStatehastobearthe
liability for unlawful executive or administrative action.
(6)Although the petitioner-respondent denied she had been arrested by the petitioner, thearrestbythe petitioner
is one episode and the Court has treated it as one transaction in which there wasonlyonearrest-thearrestbythe
petitioner. The implication is that the arrest was mistakenly attributed to the first respondent. That finding cannot nowbe
questioned in these proceedings. Moreover it was based on facts disclosed by the petitioner in his affidavit.
(7)The petitioner's statement that had he been given an opportunity he would have explained what hemeantby permit
suggests that when he used that word it did not have its ordinary English meaning. He has only himselftoblameforthis.
The Court was entitled to take it to mean what it ordinarily means in the English language -
(8)The parties to the case were heard by affidavit. Likewise the petitioner was heard by affidavit andhis affidavit
was accepted by Court. The petitioner knew at the time he swore the affidavit that it was being filed to establishthatthe
only arrest was by him and that it was the legality of his arrest that would be inissueattheinquiry.TheAdditional
Solicitor-General appearing for the 2nd and 3rd respondents addressed Court on the legality of the arrest. Intheirwritten
submissions the Inspector-General ofPolice(2ndrespondent)andtheAttorney-General(3rdrespondent)endorsedthe
petitioner's action "as being in accordance with procedures established by law".
Per Wanasundera, J. -
"The petitioner had gone out of his way to justify the arrest and sought cover for his actions in certainlegalprovisions.
This is a matter of law falling within the province of the judge".
(9)The petitioner was given such hearing as the Court considered necessary as provided in Article 134 (3).
(10)The rule of natural justice audi alteram partem has been observed. In any event the provisions ofArticle134 (3)
have been satisfied.
(11)The petitioner knew all along that it was the arrest by him and its validity that was in issue inthecase. Hence
it cannot be said that justice has not been seen to be done because the petitioner was not told that hisconductwasbeing
impugned in the case.
(12)No order for damages or costs was made against the petitioner and he has suffered no prejudice as aresultof his
not being given an opportunity to enter into the fray and take part in the argument.
(13) There is no justification for exercising any of the inherent powers of the Court in this case.
Per Wanasundera, J. -
(14)In the case that was filed by Mrs. Vivienne Goonewardena under Article 126 of the Constitution foraviolation of
fundamental rights the present petitioner came before the court in the capacity of a witness. In the courseofarrivingat
its finding a court has necessarily to believe and disbelieve the evidence given by the witnesses for the respective sides.
It is not a requirement of the law of this country that a witness who has given evidence shouldbeinformedpriortothe
judgment of the proposed reasons for disbelieving him and be afforded an opportunity of making representations.
(15)When a punishment, penalty or liability has to be imposed on a person, whether he be a partyorwitness,the law
would generally require that the person concerned be apprised of the charge, allegation or complaint against him, andhebe
afforded an opportunity of giving an explanation. The word "guilty" does not necessarily mean only criminality, itcanalso
mean culpability, namely, blameworthiness. The use of the word "guilty" inthepassage"Sub-InspectorGaneshananthamwas
guilty of arresting the petitioner in contravention of the constitutional prohibition" by no means imposes or is intendedto
impose any punishment, penalty or liability on the petitioner. It constituted a necessary step in the process of thejudge's
reasoning and without it he could not have come to a proper determination of the case.
Per Wanasundera, J. -
When a Judge passes strictures on a witness in the course of deciding a case "it is only an episode inasingletrialand
constitutes part and parcel of one proceeding, conductedaccordingtotheknownstandardsoffairnessandwherethe
principle of natural justice cannot be divided,apportionedandcompartmentalised.Iftheruleistobeappliedin
situations like the present case it would result in trials within trials and the prospect of interminable litigation.Surely
that would be carrying the principle of audi alteram partem to absurd lengths."
Cases referred to
(1)Re Exchange Street, Manchester,  3 All E.R. 490, 493.
(2)Waterhouse & Co. v. Gilbert, 15 Q . B. D. 569.
(3)Lyon v. Morris, 19 Q. B. D. 139.
(4)Mapalathan v. Elayavan, (1939) 41 NLR 115.
(5)Loku Banda v. Assen, (1897) 2 NLR 311.
(6)Elo Singho v. Joseph, (1948) 49 NLR 312.
(7)Mohamed v. Annamalai Chettiar, (1932) 12 C. L. Rec. 228.
(8)Karuppannan v. Commissioner for Registration of Indian and Pakistani Residents, (1953) 54 NLR 481.
(9)In Revision, (1921) 23 NLR 475.
(10)Alasupillai v. Yavetpillai, (1949) 39 CLW 107.
(11)Ranmenikhamy v. Tissera (1962) 65 NLR 214.
(12)King v. Baron Silva, (1925) 4 Times of Ceylon Law Reports 3.
(13)The Seistan,  1 All ER 32.
(14)Sheldon v. Bromfield Justices,  2 WLR 1066 2 Q .B 573.
(15)Appuhamy v. Regina,  1 All E. R. 762.
(16)Rex v. The Thames Magistrate's Court,  2 All E. R. 1219.
(17)General Council of Medical Education and Registration of the United Kingdom v. Spackman - Spackman's case, 
2 All E.R. 337, (1943) A. C. 627.
(18)Mahon v. Air New Zealand Ltd. and Others reported in Newspaper (Privy Council) Law Report of October 21, 1983.
(19)R. V. Deputy Industrial Injuries Commissioner: ex parte Moore, 1  1 Q.B. 456, 488, 490.
(20)Cinnamond v. British Airports Authority,  2 All E.R. 368, 377.
(21)R. v. Woking Justices, ex parte Gossage, [ 1973] 2 W.L.R. 529.
(22)R. v. Hopkins, ex parte Harward,  1 W.L.R. 967.
(23)Maharaj v. The Attorney-General of Trinidad and Tobago (No. 2),  A. C. 385, 399.
(24)Re A. Solicitor,  2 All E. R. 432, 434.
(25)Guardians of Westham Union v. Churchwardens of Bethnal Green,  A.C. 477.
(26)Sirinivasa Thero v. Thero, (1960) 63 NLR 31, 33.
(27)Selvadurai v. Rajah, (1940) 41 NLR 423.
(28)Narayan Chetty v. Jusey Silva, (1903) 8 NLR 162.
(29)Eswaralingarn v. Sivagnanasunderam, (1962) 64 NLR 396, 398.
(30)Andris Appu v. Kolande Asari (1916) 19 NLR 225, 229.
(31)Olagappa, Chettiar v. Reith, (1941) 43 NLR 91.
(32)Victor de Silva v. Jinadasa de Silva, (1964) 68 NLR 45.
(33)Commissioner of Inland Revenue v. Ranaweera (1969) 72 NLR 294 296.
(34)Edirisinghe v. District Judge of Matara, (1949) 51 NLR 549.
(35)Sinnathamby v. Yokammah (1958) 61 NLR 183, 185.
(36)De Costa and Sons v. S. Gunaratne (1967) 71 NLR 214.
(37)Huddersfield Police Authority v. Watson  All E. R. 193.
(38)Morrelle Ltd. v. Wakeling,  1 All E. R. 708.
(39)Billimoria v. Minister of Lands, [1978- 79] 1 S. L. R. 10, 12.
(40)Menchinahamy v. Muniweera, (1950) 52 NLR 409, 414, 415.
(41)Ex parte Brown, Re Tunstall,  1 N. S. W. R. 770, 775.
(42)Ridge v. Baldwin,  2 All E. R. 66, 80.
(43)Cooper v. The Board of Works for Wandsworth District, (1863) 14 C.B. (N.S) 180.
(44)Franklin v. The Minister of Town and Country Planning-Stevenage Case,  A. C. 87.
(45)Nakkuda Ali v. Jayaratne, (1950) 51 NLR 457.
(46)Board of Education v. Rice, A.C. 179.
(47)Pearlberg v. Varty,  1 WLR 534, 547.
(48)Durayappah v. Fernando, (1966) 69 NLR 265.
(49)Wiseman v. Borneman,  A. C. 297, 308.
(50)Matlock v. Aberdeen Corporation,  1 WLR 1578, 1599.
(51)John v. Rees,  Ch 345, 402.
(52)R. v. Thames Magistrate's Court, Ex parte Polemis,  2 All E.R. 1219,  1 WLR 1371.
(53)R. v. Hendon justices, Exparte Gorchein,  1 WLR 1502.
(54)Vadamardchy Hindu Educational Society Ltd v. The Minister of Education, (1961) 63 NLR 322.
(55)Kapoor v. Jagmohan, (1980) 4 S. C. C. 379.
(56)R. v. Sussex Justices, ex parte McCarthy,  1 KB 256, 259.
(57)De Verteuiel v. Knaggs, AC 559.
(58)Vasudevan Pillai v. City Council of Singapore,  1 WLR 1278, 1286 (P.C.)
(59)Rose v. Humbles,  1 WLR33,  1 All ER 314,318.
(60)Mariyadas Rai v. The Attorney-General and another S. C. Application No. 130/82: S.C. Minutes of 14. 2. 83.
(61)Caldera v. Santiagopillai, (1920) 22 NLR 155.
(62)Juan Perera v. Stephen Fernando, (1902) 2 Br. 5.
(63)Thambiraja v. Sinnamma, (1935) 36 NLR 442.
(64)Burford (Corporation of) v. Lenthall, 2 Atk. 55126 E. R. 731.
(66)Craig v. Kanssen,  K. B. 256 1 All E R. 108.
(66)Young v. Bristol Aeroplane Co. Ltd,  K. B. 718 2 All E.R. 293.
APPLICATION in revision and for the exercise of the inherent powers and jurisdiction of the Supreme Court.
K. N. Choksy, S. A., with D. H. M. Jayamaha, Ronald Perera, Lakshman Perera, Miss I R. Rajepakse and Nihal Fernandoforthe
Dr. Colvin R. de Silva with Batty Weerakoon, Miss M. Kanapathipillal and Miss Saumya de Silva for the petitioner-respondent.
Sunil de Silva, Additional Solicitor-General, with Priyantha Perera,DeputySolicitor-GeneralandUpawansaYapa,Deputy
Solictor-General for Attorney-General.
March 2, 1984.
The application in this case is a direct consequence of the order made by a Bench of three Judges of this court incaseNo.
20 of 1983. In that case the petitioner-respondent filed a petition in termsofArticle126oftheConstitution(1978)
alleging that she had been unlawfully arrested on the 8th of March, 1983, at the KollupitiyaPoliceStationbythefirst
respondent who was at the time the Officer-in-Charge of the said station. The petitioner-respondentalsoallegedthatshe
had been subjected to cruel, inhuman and degrading treatment bythefirstrespondent.Thereby,shealleged,thefirst
respondent had acted in contravention and in violation of her fundamental rights set out in Article 11 and Article 13 (1) of
the Constitution. She made the inspector-General of Police and the Attorney-General parties to thepetitionassecondand
third respondents respectively. The first respondent denied all allegations made against him. The secondrespondentappears
to have made independent investigations into these allegations. Hefiledaffidavitsupportingthedenialofthefirst
respondent and set out the true state of facts as found by him. Together with hisaffidavitwasfiledanaffidavitfrom
Vinayagam Ganeshanatham, Inspector of Police, Kollupitiya, the petitioner in this application(hereinafterreferredtoas
petitioner) and an affidavit from Pallage Ratnaseeli Perera, Reserve Woman Constable,attachedtotheKollupitiyaPolice
Station. The second respondent swore inter alia that he was "satisfied with the truth of the contents" of the twoaffidavits
abovementioned. The petitioner in his affidavit stated that it was he who arrested the petitioner-respondent and fourothers
and that the arrest was made by him on 8th March with the assistance of otherpolicemenontheGalleRoadoppositethe
Police Station. He pleads further facts seeking to justify the arrest. I will deal with this affidavit in greaterdetailin
the course of this judgment. The petition was inquired into by my brothers Ratwatte, J., Colin-Thome,J.andSozaJ.The
unanimous decision of the Court was delivered by Soza, J. The judgment discloses three salient facts. They are-
(1)That the petitioner-respondent had not established to thesatisfactionoftheCourtthatshehad been
subjected to cruel, inhuman and degrading treatment by the first respondent.
(2)That the petitioner-respondent had been arrestedonthatdayinquestionbyInspector Ganeshanantham,
petitioner, and not by the first respondent.
(3)That the said arrest was unlawful and therefore the State was liable in damages which was fixedat Rs.2,500
by the Court.
It is relevant to note that the Court made no order as to damages or costs against the petitioner. The petitioner wasinno
way prejudiced by the order of this Court.
The petitioner now complains that the Court had found him guilty of unlawfully arresting thepetitioner-respondent,thereby
violating her fundamental rights, that the findings were made against him without first informing him thathisconductwas
being inquired into, that he was given no opportunity of defending himself, that he was not a party to theproceedingsnor
added as a party and that the Court in making the said finding acted in contravention of natural justiceandperincuriam.
He asks for relief from this Court.
Counsel for the petitioner contends that this Court has powers of revision which enable it to grant the relief prayed forby
the petitioner. Counsel for the petitioner-respondent states that this Court has nopowertoreviseitsownorders.He
points to the caption of the petition which reads-
"IN THE MATTER OF AN APPLICATION IN REVISION AND FOR THE EXERCISE OFTHEINHERENTPOWERSANDJURISDICTIONOFTHE
He submits that this caption read with prayer (a) to the petition invokes a jurisdiction in revision whichthisCourtdoes
not have. One has to look at the legislation which created this Court to find an answer to this dispute. That legislationis
to be found in the second Republican Constitution of 1978. The Supreme Court which existeduptothetimeofthefirst
Republican Constitution of 1972 and which continuedtoexistunderthatConstitutionceasedtoexistwhenthe1978
Constitution became operative. (Vide Article 105 (2) of the Constitution). Its place was taken by the Court ofAppeal(Vide
Article 169 (2) of the 1978 Constitution). A new Supreme Court has been constituted which is the highest andfinalSuperior
Court of Record. (Article 118 of the Constitution). It has jurisdiction in constitutional matters which arespelledoutin
Articles 120, 121, 122, 123 and 125 of the Constitution. A fetter has been placed on this jurisdiction by theprovisionsof
Article 124. The exact nature and effect of its confines is not a matter that arises for discussion in this case. ThisCourt
has a jurisdiction for the protection of fundamental rights (Article 118 (b)). The manner ofitsexerciseissetoutin
Article 126 of the Constitution. It has a final appellate jurisdiction which is referred to in detail in Article 127ofthe
Constitution. It has a consultative jurisdiction (Article 118 (d)) which is referred to indetailinArticle129ofthe
Constitution and it has a jurisdiction In election petitions (Article 118 (e)) which is referred to in detail in Article130
of the Constitution. Lastly it has a jurisdiction in respect of any breach of the privileges of Parliament (Article118(f)
which is referred to in Article 131 of the Constitution.Otherjurisdictionsmaybevestedinitbylawspassedby
Parliament. (Article 118 (g)). None of the provisions expresslyconferringjurisdictionwhichIhavecitedabovegive
this Court a jurisdiction to revise its own decisions. Nor has the Legislature acting in terms of Article 118 (g)conferred
such a jurisdiction by law On the other hand the language in certain of the Articles indicates to my mind, not onlythatit
is the Court of last resort in appeal, (Article 118 (c)) but also that there is finality in its judgment whether it beright
or wrong. Article 126 (5) stipulates that this Court shall "finally dispose of" the petition within three months. The useof
t he word "finally" indicates to my mind that the limitation is not confined to the period of time, viz., threemonths,but
also refers to the effect of the order made. I would take the same attitude which Harman, J. adopted in a similarsituation.
"The thing is over". There is nothing more that can bedone.Theremustbecertaintyinthelaw-ReExchangeStreet,
Manchester (1). Article 127 states that all judgments and orders of this Court in its appellate jurisdiction shall be"final
and conclusive" The use of these words primarily means that there can be no further appeal to a higher court orinstitution.
Waterhouse & Co., v. Gilbert (2) and Lyon v. Morris (3). It might be said that suchaphraseissuperfluousbecausethe
Supreme Court is the final Appellate Court. This is a plausible statement. Butitappearstomethatitwasmeantto
emphasise the fact that as far as the matters which are the subject of the decision are concerned it is allover.Thereis
an end to such litigation - as needs must be with all litigation. Ut sit finis litium. That is the policy ofthelaw.That
is the purpose of Chapter XV of the Constitution. A like view was taken of the Supreme Court that existed up to thetimeof
the Constitution of 1978. In the case of Mapolathan v. Elayavan (4) an application was made to revisetheearlierdecision
of the Supreme Court in the same case. That decision was based on the premise that the Deed of Transferwassignedbytwo
transferors. It was later pointed out that there were in fact four transferors. It was allegedthatiftheoriginalDeed
filed of record had been properly scrutinized this fact would have been discovered and the decision of the Courtwouldhave
been in favour of the petitioner. It was held that while the Courts Ordinance gave the Supreme Court power to deal by wayof
revision with cases tried or pending in original courts it had no power to revise cases decided by the Supreme Courtitself.
See also Loku Banda v. Assen (5) and Elo Singho v. Joseph (6). I hold that this Supreme Court has no jurisdiction toactin
revision in cases decided by itself.
Counsel for the petitioner submitted that this Court possessed inherent powers which were sufficient to enableittogrant
the relief prayed for by the petitioner. He relied on the provision of Article 105 (3) which reads as follows:
"(3) The Supreme Court of the Republic of Sri Lanka and the Court of Appeal of the Republic ofSriLankashall
each be a superior court of record and shall have all the powers of suchcourtincludingthepowertopunishfor
contempt of itself, whether committed in the court itself or elsewhere, with imprisonment or fine or both as thecourt
may deem fit."
Counsel contended that the powers of a Superior Court of record"includedaninherentjurisdictiontocorrectitsown
decisions". As a Superior Court of record there is no doubt that it has inherent powers to make corrections to meet theends
of justice. In Mohamed v. Annamalai Chettiar (7) the Court used its inherent powers to free an insolvent from arrestpending
the decision of his appeal to the Privy Council although there was no statutory authority for such an Order. Costs havebeen
awarded to a successful party from the inception of the Supreme Court using its inherent power - Karuppannan v.Commissioner
for Registration of Indian and Pakistani Residents (8).inherentpowershavebeenusedtocorrecterrorswhichwere
demonstrably and manifestly wrong and it was necessary in the interests of justice to put matters right. Decision s madeper
incuriam have been corrected. Vide In Revision (9), Alasupillai v. Yavetpillai (10), Ranmenikhamy v.Tissera(11).Inthe
case of King v. Baron Silva (12) the Supreme Court upheld theconvictionoftheaccusedinthecaseonachargeof
conspiracy to commit extortion Sometime later it was brought to thenoticeoftheSupremeCourtthatsuchoffenceof
conspiracy did not exist at the time of the alleged commission. The Court held that its decision had been madeperincuriam
and altered the conviction These powers are adjuncts to existing jurisdiction to remedy injustice-theycannotbemadethe
source of new jurisdictions to revise, a judgment rendered by that Court. Can such powers avail the petitioner in this case?
Counsel for the petitioner formulated two issues for consideration anddecisionbythisCourt.Thefirstissueisas
A.The Supreme Court acted per Incuriam in deciding Appeal No. 20/83 for the following reasons:
(1)It has made the finding against the Petitioner in respect of an Infringement not complained of to +Court byMrs.
Gunawardena (petitioner-respondent) and in fact disowned by her. Such Order was in disregard of Article126(2)readwith
rule 65(1)(a) of the Supreme Court Rules.
(2)The power to grant relief or give directions which the Supreme Court deems just andequitableunderArticle 126
(4) is restricted to the Petitioner's allegation and complaint to Court under Article 126 (2).
(3)in any event the Court acted per incuriam in making its finding in that it disregarded-
(i) Article 126 (2) read with Rule 65 (1) and Rule 65 (4)(ii).
(ii)The rule of natural justice-audi alterampartem.
(iii) The rule of natural justice that justice must be seen to be done.
The second issue is as follows:
B. The Supreme Court has the jurisdiction to grant the Petitioner (Ganeshanantham) relief in respect oftheaforesaid per
incuriam finding either in the exercise of its inherent jurisdiction or powers of revision.
The jurisdiction granted to this Court by Article 126 of the Constitution concerns fundamentalrightsandlanguagerights
declared by Chapters III and IV of the Constitution. In exercising this jurisdiction the Court has to makeadualfinding,
(1) Whether there is an infringement or threatened infringement of a fundamental right, and
(2) Whether such infringement or threat is by executive or administrative action.
If the answer to the first is in the negative the second does not arise for consideration. If the answer to the firstisin
the affirmative then the question arises as to whether the act complained of constitutes executive or administrativeaction.
It may not always be possible for the petitioner to allege in his petition that the act was that of a particularofficerof
State. His name may not be known to the petitioner, and he may only be able to identify him by other means. Forexamplein
the course of the inquiry he may be able to establish that it was a police officer of anamedPoliceStation.ThisCourt
would then have jurisdiction to act in terms of Article 126. On the other hand it may be that in the courseoftheinquiry
it transpires (as happened in the instant case),anditisestablishedtothesatisfactionoftheCourt,thatthe
infringement was by a State Officer other than the one named in the petition. This Court would still have thepowertoact
in terms of Article 126. The jurisdiction of this Court does not depend on the fact that a particularofficerismentioned
by name nor is it confined to the person named. The unlawful act gives the Court jurisdiction to entertain thepetitionand
to make a declaration accordingly. The fact that it was committed by an Officer ofStateempowerstheCourttogranta
remedy. The provisions of Article 126 (2) do not limit the inquiry to the person named in the petition. Such a limitationis
apparent in the provisions of Article 126 (3) where the inquiry is confined to the party named in the application for awrit
in respect of whom the Court of Appeal makes the reference.Article4(d)oftheConstitutionenjoinsallorgansof
Government to respect, secure and advance the fundamental rights declared and recognizedbytheConstitution.ThisCourt
being a component part of the judiciary, which is one of the organs of Government, must necessarilyobeysuchcommand.It
will be a travesty of justice if, having found as a fact that a fundamental right has been infringed or is threatenedtobe
infringed, it yet dismisses the petition because it is established that the act was not that of the OfficerofStatenamed
in the petition but that of another State Officer, such as a subordinate of his. The provisions of Article 126 (2) cannotbe
confined in that way. This Court has been given power to grant relief as it may deem just andequitable-apowerstatedin
the widest possible terms. It will be neither just nor equitable to deny relief in such a case. CounselforthePetitioner
referred to the provisions of Rule 65 and called in aid its terms to buttress his argument. Rule 65 merelystatesthatthe
Petitioner shall name the person who he alleges has commited theunlawfulact.Thisbynomeansexhauststheavenues
available to a petitioner. As I have stated earlier it does not provide for a situation where thepetitionerisunableto
name the Officer of State who commits the act. Furthermore Rule 65 concerns procedure andlikemostrulescannotdetract
from the powers of Article 126. I therefore reject the contention raised in issues A 1 and 2 by Counsel for the petitioner.
I now turn to issue 3 (1) (ii) and (iii). There has been no disregard of the provisions of Article 126 (2) read with Rule65
(2) and (4) (ii). Before I deal with these issues I desire to dispose of another matter that was raised byCounselforthe
petitioner. In para 5 of his affidavit dated 9.5.1983 the petitioner stated that he "questioned the lady at the headofthe
procession whether they had a permit to go in procession and no permit was produced by the said lady or any othermemberof
the procession". He states that when he became aware that the procession was being conducted"withouttheauthorityofa
lawful permit" it became his lawful duty to prevent the conductoftheprocession.TheCourtheldthatnopermitor
permission was required for the procession. The petitioner now states thathadhebeengivenanopportunitytodefend
himself he would have explained what he meant by the word "permit", suggesting that when he used that word itdidnothave
its ordinary English meaning. If that be so he has only himself to blame. The Court was entitled to take it tomeanasthe
Inspector-General of Police the 2nd respondent did what it ordinarily means in the English language and it istoolatenow
to state that he used the word in a sense different to its ordinary connotation.
Another submission of Counsel was that the arrest complained of to Court by the petitioner-respondent was not thearrestby
the petitioner and the Court therefore had nojurisdictiontoinquireintothislatterarrest,moresobecausethe
petitioner-respondent denied this in her counter affidavit. This arrest by the petitioner was one episode and theCourthas
treated it as one transaction in which there was only one arrest and that was by the petitioner. The implication is thatthe
arrest was mistakenly attributed to the first respondent. Thatfindingcannotnowbequestionedintheseproceedings.
Moreover it was based on facts disclosed by the petitioner in his affidavit.
Counsel for the petitioner next submitted that the petitioner was not a party to the proceedingsinquestionandhadnot
been told that his conduct was being impugned and therefore would be the subject of inquiry by theCourt.Further,thata
finding of guilt had been made against his client withouthearinghim.Thisprocedure,itissubmitted,violatedthe
principle of natural justice-audi alteram partem. "Justice must be seen to be done", he said. "Justice has not beenseento
be done". In the result, he states, the finding that the arrest was made unlawfully by the petitioner was madeperincuriam
and must be expunged or declared invalid. When confronted with the position that the Court would be stultifying itself if it
made such an order because the award of damages was based on such finding and therefore could not stand if suchfindingwas
expunged or declared invalid, Counsel went the whole hog and asked that the entire order be set aside.
Counsel contended that the rule of natural justice - audi alteram partem - applied not only to a party to a case but alsoto
any person against whom findings are made or strictures passed without either being made a party to the proceedings orbeing
informed that his conduct is being impugned and would therefore be inquiredinto.Counselhassoughttoestablishthis
contention with the aid of some decisions of the English Courts. I will now deal with these cases cited by him. The firstof
them is the case of The Seistan (13). The Motor Vessel Seistan sank on 19th February, 1958, in the Persian GulfoffBahrain
as a result of an explosion. A Court of formal investigation consisting of a Wreck Commissioner and three assessorswasset
up. The Chief Engineer of the Vessel, Mr. Robertson, was seriously ill and therefore was unable to giveevidenceinperson
but did so by means of three statements signed by him. The finalreportwassignedbytheCommissionerandthethree
Assessors. One of the Assessors, Captain Parfitt by name, added a rider in these words-
"I concur in the above but in my opinion the advice given by the chief officer, Mr. Jones, astofloodingthelower
hold offered the better chance of a quicker extinction of the fire. The conduct of the chief engineerinmisinforming
the chief officer regarding No. 5 bilge line non-return valve was reprehensible."
The Minister of Transport and Civil Aviation ordered a re-hearing restricted to so much ofthecaseheardattheformal
investigation as related to the conduct of the Chief Engineer. The real object of the re-hearingwastoinquireintothe
merits of the censure. The last of questions answered by the Commissioner and Assessors was-
"Was the loss of the Motor Vessel Seistan caused or contributed to by the wrongful act ordefaultofanypersonor
All except Captain Parfitt answered "No". Merriman, J. expressedtheopinionthattherewasnojustificationforthe
censure. He further stated that the question required the Court to pronounce on the culpability of a personorpersonsand
the rider implied that the Chief Engineer misinformed the Chief Officer regarding No.5bilgelinenon-returnvalveand
thereby caused retardation of the flooding of the hold. It then behoved the Assessor and the Court to givetheofficeran
opportunity of exculpating himself. This was not done and Merriman, J. stated thatinthecircumstancesthecensurewas
"wholly irregular". The Court did not expunge or set aside the rider. It merely stated that there was"no justificationfor
censuring George Robertson". During the whole of the inquiry there does not appear tohavebeenanysuggestionthatthe
Chief Engineer had misinformed the Chief Officer regarding the cause of theexplosion.Therewasnoinklingofsucha
suggestion nor was such an allegation inquired into. The Chief Engineer therefore had no occasion to explain orjustifyany
conduct of his. Such a situation does not arise in the instant case. The next case cited is the case of Sheldon v.Bromfield
Justices (14). The facts are simple. OneCharlesWilfredMarsh,waschargedwithassaultinghismother-in-law,Mary
Elizabeth Sheldon. She and her husband, Thomas William Sheldon, gave evidence for the prosecution. The chargewasdismissed
but the justices bound over the accused and the two Sheldons to keep the peace for a period of 12 months. This order wasset
aside as being contrary to natural justice. Lord Parker, the C J. was of the view that a mere witness whocomestotestify
against an accused should at least be told that his conductwasalsoinquestionandhemustbegivenareasonable
opportunity of knowing the nature of the allegation and of making his answer to it. A similar situation arose in the caseof
Appuhamy v. Regina (15). The witness was summarily punished for having givenfalseevidence.TheCommissionerofAssize
acted upon a rider to that effect brought by the jury. This conviction was set aside. It was clearly wrong as theprovisions
of section 440 (1) of the Criminal Procedure Code permitted the Court to convict if intheCourt'sopinionhehadgiven
false evidence in which event the witness should have been told accordingly and an indication given of theevidencealleged
to be false. The Commissioner had no power to act summarily on the opinion of the jurythatthewitnesshadgivenfalse
evidence. This decision was based on a statutory provision. The Privy Council held that the witness hadnotbeentoldthe
"gist and substance" of the accusation against him. The next case cited is the case of Rex v. The ThamesMagistrate'sCourt
(16). The facts show that the prosecution and the lay justices were in an inordinate hurry. Summons was served onaCaptain
of a Greek Vessel at 10. 30 a.m. on the 17th July returnable at the Magistrate's Court at 2.00 p.m. that very day. TheGreek
Captain knew little or no English. His Solicitors found it impossible to prepare the defence before 2.00 p.m. andtherefore
applied for a postponement. They were granted an adjournment till 4.00 p.m. it was later taken up that day byaStipendiary
Magistrate. He heard the case out that very day and found the case proved. The Captain was fined£5,000.TheCourtheld
that there was a breach of natural justice. The facts showed clearly that the defendanthadnotbeengivenareasonable
chance to prepare his defence. Lord Widgery, C.J. said-
"To start with, nothing is clearer today than that a breach of the rules of natural justice is said to occur if a party
to proceedings, and more especially the defendant in a criminal case, is not given a reasonable chance topresenthis
case. It is so elementary and so basic it hardly needs to be said. But of theversionsofbreachoftherulesof
natural justice with which in this Court we are dealing constantly, perhaps the most commontodayistheallegation
that the defence were prejudiced because they were not given a fair and reasonable opportunity to present their case to
the Court, and of course the opportunity to present a case to the Court is not confined to being givenanopportunity
to stand up and say what you want to sayit necessarily extends to areasonableopportunitytoprepareyourcase
before you are called on to present it. A mere allocation of Court time is of no value ifthepartyinquestionis
deprived of the opportunity of getting his tackle in order and being able to present his case in the fullest sense."
There is no complaint of this kind in the instant case and it is therefore not applicable. The next case citedisthecase
of General Council of Medical Education and Registration of the United Kingdom v. Spackman (17). In thiscaseDr.Spackman
had been found guilty in the Divorce Court of adultery with a female patient of his who was suing herhusbandfordivorce.
The doctor was ordered to pay £ 1,000 damages to the husband.HewaschargedbeforetheGeneralMedicalCouncilwith
infamous conduct in a professional respect. Before the Council the doctor sought to negative the Court's finding ofadultery
by tendering evidence which, though available, was not called in the divorce proceedings. The Council refusedtohearsuch
evidence and directed that the doctor be struck off the Medical Practitioners' Register. This order waschallengedbyWrit
of Certiorari. The King's Bench Division issued the Writ which was affirmed by the House of Lords inappeal.Thedecision
turned on the construct on "due inquiry" in section 29 of the Medical Act of 1858. TheHouseofLordsheldthatitwas
incumbent on the Council to hold due inquiry and judge guilt. It cannot relyuponaninquirybyanotherTribunalora
judgment of guilt by another Tribunal. I cannot see how thisdecisionsupportsthecontentionoftheCounselforthe
Mr. Choksy referred us to a decision of the Privy Council in the case of Mahon v. Air New ZealandLtd(18)reportedina
newspaper dated October 21, 1983. It is an abridged version and therefore not reliable. A Law Report containing thejudgment
is not available here in Sri Lanka. However as Mr. Choksy laid great stress on this decision I proposetorefertoit(a
photostat copy has been made available to me) mindful of the fact that a reading of the judgmentitselflatermightprove
that the editor's summary of the judgment is either wrong or inaccurate. It appears that the Governor-General of NewZealand
had appointed a Royal Commission to inquire into the "cause and circumstances" of the crash of the DC10aircraftoperated
by Air New Zealand on a sight seeing trip of the Antarctic. The 237 passengers and the crew of 20 were killed. Theappellant
(a Judge) had been appointed Commissioner. In his report he ordered Air New Zealand to pay to the Ministry of Justiceasum
of New Zealand $ 150,000 as a contribution to the costs of the inquiry. The reason hegaveforthisorderisquotedas
"But in this case, the palpably false sections of evidence which I heard could not have been the result of mistake,or
faulty recollection. They originated I am compelled to say, in a pre-determinedplanofdeception.Theywerevery
clearly part of an attempt to conceal a seriesofdisastrousadministrativeblundersandso,inregardtothe
particular items of evidence to which I have referred, I am forced reluctantly to saythatIhadtolistentoan
orchestrated litany of lies."
The parties to the deception and conspiracy were readily identifiable in the body of the report. Four flightoperatorsalso
were identified as conspirators. The report states that the Privy Council disposed of theappealonthegroundthatthe
Judge had inadvertently failed to apply the applicable rules ofnaturaljusticesetoutinthecaseofR.vDeputy
Industrial Injuries Commissioner: ex parte Moore (19). They are-
(1)A finding must be based on evidence of probative value.
(2)The Judge must listen fairlytotherelevantevidenceconflictingwiththefinding(sic.) the
arguments placed by those whose interests are affected or would have so wished to place had he been made awareofthe
risks of the findings being made. (The emphasis is mine).
As regards the first proposition it is reported that the Privy Council found that on the facts it wasnotconceivablethat
individual witnesses falsely disclaimed knowledge of low flying on previous trips in a concerted attempt to deceive. Norhad
there been evidence of probative value to base a finding of concealment of documents. We are notconcernedwiththefirst
proposition or the Privy Council's decision on it in the instant case. As regards the second propositionthePrivyCouncil
is stated to have held that the Judge's finding of concerted concealment of Air New Zealand's adoptionofanewSoutherly
way point for Antarctic Sightseeing flights was rightly rejected by the Court of Appeal because he had failedtohearboth
sides and the inferences he drew were based on a logical fallacy. Either reason would havebeensufficienttorejectthe
finding. Here again I must point out that the editor's reporting may be inaccurate. Assuming thatheiscorrectitmeans
that Air New Zealand should have been in some way or other made aware that there was a risk ofsuchafinding.Apparently
the airline had no such knowledge up to the time they were confronted with the finding against them. Once again I muststate
that the position of the petitioner in the instant case is different in that he had knowledge and was aware that hisactin
arresting the petitioner-respondent would be the basis of any findingagainsttheStateandthatsucharrestmustbe
justified in law. He was more fortunate than the airline because he ran no risk of being mulcted indamagessimplybecause
he was not a party to the case.
In the instant case the Petitioner tendered to Court an affidavit whichwasfiledbytheheadofhisDepartment,the
Inspector-General of Police (2nd respondent). In his affidavit he stated the fact that he arrested thepetitioner-respondent
on the pavement opposite the Police Station and took her with others into the Police Station. He was thereby representingto
court that until such time as she was released from custody she was detained under arrest made byhimandnotbyhe1st
respondent. It must have been clear to him and to all others involved in the case that there could not havebeenasecond
arrest in the Police Station. It would have been equally clear that that was the arrest which was the subject ofinquiryby
Court, and therefore had to be justified in law. The petitioner therefore pleaded as follows: -
"I state that I along with Police Constables 11085, 7634, 12071 and 5224questionedtheladyattheheadofthe
procession whether they had a permit to go in a procession and no permit was produced by the saidladyoranyother
members of the procession. I state that when I became aware that the said procession was beingconductedwithoutthe
authority of a lawful permit and that the participantswerecommittingoffencesundersection77ofthePolice
Ordinance it became my lawful duty under section 56 of the Police Ordinance to prevent the conduct of that procession."
Why was he seeking "to justify the arrest in law"? If his purpose was only to absolve the 1st respondent all he had tostate
was that he made the arrest in question and stop there. The fact that he proceeded tojustifythearrestestablishestwo
important facts. Firstly, that he was aware that it was the arrest by him that was the real issue in the caseandsecondly,
that the legality of the arrest had to be established. His affidavit was accepted by Court and we wereinformedbyCounsel
at the Bar that Counsel appearing for the 2nd and 3rd respondents and the defence addressed theCourtonthelegalityof
this arrest. The written submissions tendered on behalf of the second and third respondents, i.e., theInspector-Generalof
Police and the Attorney-General respectively, endorsed this action "as being in accordancewithproceduresestablishedby
law". The petitioner was heard by affidavit as is normally done in cases ofthiskind.Oralevidenceisrarelyledor
permitted. In fact all evidence relevant to the matter was adduced by affidavit. The petitioner cannot state, aswasstated
in the case of the Seistan, that he had no inkling of the fact that the arrest by him was to be called in question or wasin
fact in question in the matter. Nor can he plead, as in the Sheldon case, that he,awitnesstoanother'sact,suddenly
found himself being accused and dealt with for an offence. I have no doubt that the petitioner knew at the time he sworethe
affidavit that it was filed for the purpose of establishing that there was only one arrest and that arrest wasmadebyhim
and not by anyone else, that it was that very arrest and its legality that would be in issue in the inquiry and thatitwas
necessary to justify the arrest in law. His Counsel submitted that had the petitioner been heardhewouldhavesucceeded
where the 2nd and 3rd respondents failed. The matter that was argued was the legality of the arrest. It waspurelyalegal
argument based on statutory provisions. The AdditionalSolicitor-Generalarguedforthe2ndand3rdrespondents.The
petitioner thinks he could have done better. He is entitled to his opinion but I do not think he couldhaveaddedanything
useful to the argument. The parties to the case were heard by affidavit. Likewise thepetitionerwasheardbyaffidavit.
Counsel contends that "justice has not been seen to be done"- all because the petitioner had not been told thathisconduct
was being impugned in the case. Appearances are sometimes deceptive and it is so inthiscase.AsIstatedearlierthe
petitioner knew all along that it was the arrest by him and its validity that was in issue in the case. Hehassufferedno
prejudice as a result of not being given an opportunity to enter into the fray and take part in the legal argument."Noone
can complain of not being given an opportunity to makerepresentationsifsuchanopportunitywouldhaveavailedhim
nothing"- per Brandon, L.J. in Cinnamond v. British Airports Authority (20).Thereisanothermattertobetakeninto
account. Article 134 (1) states that in an application under Article 126 the Attorney-General shall be heard andpartiesto
such proceedings have the right to be heard in person or by an Attorney-at-law. Any other person may be heard at theCourt's
discretion. Article 134 (3) reads -
"The Supreme Court may in its discretion grant to any other person or his legalrepresentativesuchhearingasmay
appear to the Court to be necessary in the exercise of its jurisdiction under this Chapter."
The petitioner was given such hearing as the Court considered necessary. It is not forthisCourtnowtosaythatsuch
hearing was insufficient. I hold that that the rule of natural justice - audi alteram partem -hasbeenobserved.Inany
event the provisions of Article 134 (3) have been satisfied. I therefore reject the contentions raised in issue3(ii)and
The only issue left is issue B. I have already held that that this Court has no power to revise itsowndecisions.Asfor
the exercise of inherent powers I need only state that there is no justification for exercising any oftheinherentpowers
of this Court.
I dismiss the petitioner's application. The petitioner-respondent will be entitled to costs.
SHARVANANDA, J. - I agree.
WIMALARATNE, J. - I agree.
COLIN-THOME , J. - I agree.
I am in complete agreement with the judgment of the Chief Justice on all the matters dealt with by him. But I wouldliketo
take this opportunity of adding my own observations briefly on one or two of the legal issues before us.
The petitioner's complaint is that in the judgment of the Supreme Court in S. C. Application No. 20/83, thiscourt,without
affording the petitioner an opportunity of being heard, had made "an adverse finding in respect of thepetitioner'sconduct
as a Police Officer by holding that the petitioner was guilty of an unlawful arrest in contraventionoftheConstitutional
prohibition of arrest."
In that case, which was filed by Mrs. Viviene GoonewardenaunderArticle126oftheConstitutionforaviolationof
fundamental rights, the respondents to the application were Hector Perera, the Officer-in-Charge oftheKollupitiyaPolice
Station (1st respondent) Rudra Rajasingham, I.G.P. (2nd respondent) and the Attorney-General (3rd respondent). Theorderof
the court was that the State should pay a sum of Rs.2,500 as compensation to the petitionerMrs.VivieneGoonewardena.No
punishment, fine, penalty or liability has been imposed on the petitioner or anyone else.
In S. C. Application No. 20/83, the present petitioner came before the court in the capacity of a witness. Intermsofthe
procedure laid down, a petition under Article 126 has to be decided on affidavit he evidence. The petitionersaffidavitwas
submitted to court by the I.G.P., in support of the I.G.P.'s own case. In disposing of that application and in the courseof
coming to findings of fact and law before court, the court madethefollowingobservationsonthepresentpetitioner's
"On his own showing Sub-Inspector Ganeshanantham was guiltyofarrestingthepetitionerincontraventionofthe
constitutional prohibition of arrest, except according to the procedure established by law. The arrest constitutesan
infringement of a fundamental right. Sub-Inspector Ganeshanantham's action no doubt proceeds from a wrongappreciation
of the law, but the infringement remains.
Considering Mr. Choksy's submissions to us, three matters-all interconnected-immediately arise forconsideration.Theyare
the following: Is a court in the course of deciding a case entitled to make an adverse finding in respect of the conductand
evidence of a witness? Second, is such a witness then entitled to a furtherhearing,thatistosayanopportunityof
explaining why such a finding should not be made against him. Third, ifthesecondquestionistobeansweredinthe
affirmative, should such a hearing be granted only in certain limited and special circumstances?
The answer to the first question posed by me is decidedly 'yes'. People take their grievances to the courts for decision.It
is the duty of a court in deciding a case to consider all the evidence placed before it,determinetheseveralissuesof
fact and law involved and then make an order in accordance with the law disposing of the matter. In thecourseofarriving
at its finding a court has necessarily to believe and disbelieve the evidence givenbythewitnessesfortherespective
sides. A judge has a wide discretion in forming his judgment and is given a wide latitude inexpressinghisviews.Itis
quite legitimate for him to make his comments on the evidence and this canbeexpressedinlanguagewhichheconsiders
suitable though it may reflect favourably or unfavourably on a witness.
It is not a requirement of the law of this country that a witness who has given evidence shouldbeinformedpriortothe
judgment of the proposed reasons for disbelievinghimandbeaffordedanopportunityofmakingrepresentations.The
principle of audi alteram partem relied on by the petitioner has become an important legal topic in modern times duetoits
relevance in the field of administrative law. As far as the courts are concerned, our courts are courts oflawandjustice
and are meant to be the embodiment of justice and fairness. This principle is inherent in the practice and structureofthe
Article 126 of the Constitution shows that in an application under that Article the accusation is made against the Stateand
the State through its principal Law Officer,theAttorney-Generalisrequiredtodefendtheaction.Itisalegal
requirement that the Attorney-General should be heard. There are Rules providing for particulars to be givenregardingthe
acts and the persons concerned in respect of the alleged, violation of fundamental rights. Such persons,ifdisclosedare,
no doubt, given the status of respondents. But the Rules cannot derogate from the substantive constitutionalprovisionsand
alter the nature and composition of a proceeding under Article 126. As the Chief Justice has pointed out, a proceedingunder
Article 126 is against the State and the State has to bear the liability for unlawful executive or administrative action.
The case law cited however shows that when a punishment, penalty or liability has to be imposed on a person,whetherhebe
party or witness, the law would generally require that that personconcernedbeapprisedofthecharge,allegationor
complaint against him, and he be afforded anopportunityofgivinganexplanation.Nowthequestioniswhetherthe
observations made by the court in this case can amount to the imposition of a punishment, penalty orliability.Mr.Choksy
pointed to the following passage in the judgment-
"Sub-Inspector Ganeshanantham was guilty of arresting the petitioner in contravention of the constitutional prohibition"
Seizing upon the use of the word "guilty", he submitted that this language indicates unlawful conduct and a finding ofguilt
as in the case of an offence. The word "guilty" does not necessarily mean only criminality, itcanalsomeanculpability,
namely blameworthiness. We find it often used in ordinary parlance in the latter sense. The observation made by the courtin
my opinion by no means imposes or is intendedtoimposeanypunishment,penaltyorliabilityonthepetitioner.It
constituted a necessary step in the process of the judge's reasoning and without it hecouldnothavecometoaproper
determination of the case.
I have so far been considering the case of a witness who is disbelieved by the court. That however is not the casehere.On
the contrary, in the present case, the petitioner's statements on the factual matterswhichwouldbeequivalenttooral
evidence in a normal court action, were accepted by the court in toto. It is in regard totheapplicablelegalprovisions
that the court has chosen to differ from the witness.
The petitioner had gone out of his way to justify the arrest and sought cover for his actions incertainlegalprovisions.
This is a matter of law falling within the province of the judge.
It is a common occurrence in our Courts to find a judge differing from a lay witness as to what thelawis.Witnessesare
often mistaken about the law and their legal rights. When the views of a witness are not acceptable does such a witnesshave
a right to ask that he be resummoned and be heardonthematter?Thisappearstobetherealissueinthiscase.
Incidentally the wrong conduct of a person, especially a public officer under a misapprehension of the law cannotamountto
a finding of moral turpitude unless such action is malicious. The Air New Zealand case cited by Mr. Choksy to whichIshall
now turn deals with this aspect of the matter at some length.
The Air New Zealand case Mahon v. Air New Zealand Ltd. (18) of which we have been furnished only with anabridgednewspaper
report and the case of The Seistan (13) both deal with public inquiries held by Commissioners. Commissions of Inquiryaswe
know, are generally given broad and vague terms of reference. It is the duty of a Commission to hold an inquiry andtomake
specific findings in respect of the matters referred to it andtoidentifyanypersonorpersonsresponsibleforany
wrongful act and on whom liability should be imposed. Generally at the inception of the work of the Commission,allpersons
summoned before the Commission, come before it as mere witnesses. When sufficient material is availabletheCommissionmay
be in a position to prefer charges against specific persons. From that stage onwards such a person would be intheposition
of a party, in contradiction to that of a witness, if the language and the analogy of Court proceedingscanbeadoptedin
that context. Once the conduct of a person is the subject of the inquiry, he must be afforded all the rightsandprivileges
of a party.
In the Air New Zealand case Mr. Mahon, a Judge oftheHighCourt,wasappointedtoaRoyalCommissionasthesole
Commissioner. The Commission was required to inquire into an aircraft disaster involving an aircraft of the NewZealandAir
Lines. After inquiry the Commission found that the dominant cause of the disaster was the act of the NewZealandAirLines
changing the aircraft computer track without informing the air crew. The Commissioner held that the airlineofficialswho
had prepared the flight had made a mistake and this was due to the incompetent administrativeprocedureinexistence.The
Commission exonerated the air crew but went on to observe that there had been a concerted attempt by certain officers ofANZ
to conceal a series of disastrous administrative blunders and this was a predeterminedplanofdeception.Thesepersons
could be identified in the report. They were the senior officers employed in the flight operationdepartmentandthefour
members of the Navigation, section. The Commissioner followed this up with an order against ANZ, ordering it topaytothe
Department of Justice as a punishment, a sum of 150,000 New Zealand dollars, being the public cost of the inquiry.
Naturally ANZ filed papers in the Court of Appeal for quashing the findings. It wouldappear,judgingfromtheavailable
report that not only were these persons not before the Commission at all but the strictures that were passed were based ona
logical fallacy and could not be supported by the material before the Commission. Here we have acasewhereasubstantial
penalty has been imposed andadversefindingsmadeagainstpersonswhoapparentlytooknopartwhatsoeverinthe
proceedings. That is very different from the case we are now considering.
It is somewhat ironical to observe that the Commissioner Mr. Mahon who had erred on the law appears to haveshownanundue
sensitiveness to the criticism of his order by the Court of Appeal. The appeal to the Privy Council seems to have beentaken
at his instance. To allay any misconception he may have entertained on this score the Privy Council went out ofitswayto
make pronouncement on this matter. These observations are pertinent t the case before ussinceheretoothepetitioner's
conduct has bee criticised for his wrong view of the law. I shall quote the relevant passage in extenso-
"His Lordship added that to say of a person who holds judicial
office that he had failed to observe a rule of natural justice might sound toalayearasifitwereasevere
criticism of his conduct which carries with it a moral overtone.
But that was far from being the case. It was a criticism which might be and in the instant case was certainlyintended
by Their Lordships in making it to be wholly dissociated from any moral overtones.
Earlier their Lordships had set out the two rules of natural justice that appliedto the appeal.
It was easy enough to slip up over one or other of them in civillitigation, particularly when one was subjecttopressure
of time in preparing a judgment after hearing masses of evidence in a long an highly complex suit.
In the case of a judgment in ordinary civil litigation such failure to observe rules ofnaturaljusticewassimplyone
possible ground of appeal among many others and attracted no particular attention.
All Their Lordships could remember highly respected colleagues who as trial Judges had appealsagainstjudgmentstheyhad
delivered allowed on that ground and no one thought any the worse of them for it.
So Their Lordships recommendation that the appeal oughttobedismissedcouldnothaveanyadverseeffectuponthe
reputation of the Judge among those who understood the legal position and it should not do so with anyone else."
In Appuhamy v. Regina (15) there was a finding against a witness that he had given false evidence. The Court however didnot
stop with this pronouncement but proceeded to try him summarily and punish him.Apartfromthiscourseofactionbeing
contrary to certain express statutory provisions that are applicable, as a matter of principle itwasonlyjustandfair
that the witness facing a criminal charge should have been given a fair hearing.
In Sheldon v. Bromfield Justices (14) the prosecution witnesseswereboundover,whichisapunishmentwithoutprior
intimation of the course of action the Court intended taking. The binding over order was referable to the merits of themain
case. This was held to violate the principle of natural justice. However in R. v. Woking Justices,exparteGossage(21),
Sheldon's case has been explained. In this case an acquitted defendant was boundovertokeepthepeace.Heretoothe
defendant had no notice of such proposed action. The Court however held that this did notconstituteabreachofnatural
justice because the defendant had every opportunity at the main trial of adverting to all the relevantmatters.Boththese
cases have been distinguished in R. v. Hopkins, ex parte, Harward (22).Inthiscasethecomplainantswhoweremaking
counter complaints before the stipendiary Magistrate were immediately bound over for makingadisturbanceinCourt.They
were not given the opportunity of making representations. The Court was of the view that since there was animminentdanger
of a breach of the peace if the complainants left the Court premisestheorderwaslawfulandcertiorariwasrefused.
Widgery, C.J., said-
"We must keep in mind all the time that we are dealing with natural justiceanditisnotdesirablethatnatural
justice should be divided up into rigid compartments. It is a matter which in its very essencerequirestobekept
fluid and flexible to deal with the justiceof a particular case."
The rule of audi alteram partem should be applied only in appropriate circumstances. It should not beusedmechanicallyin
every situation when an order reflecting on or affecting a person has to be made by a court ortribunal.TheGossagecase
and the Hopkins case show that when a disturbance is committed in the face of the Court, the principle oftheaudialteram
partem rule will not apply, even though a punishment is imposed. By a parity of reasoning the principle oughtnottoapply
when a judge passes strictures on a witness in the Course of deciding a case. It is only an episode inasingletrialand
constitutes part and parcel of one proceeding, conductedaccordingtotheknownstandardsoffairnessandwherethe
principle of natural justice cannot be divided,apportionedandcompartmentalised.Iftheruleistobeappliedin
situations like the present case it would result in trials within trials and the prospect of interminable litigation.Surely
that would be carrying the principle of audi alteram partem to absurd lengths.
There remains one final matter, Mr. Choksy stated to us quite frankly that the presentapplicationisbeingmadebythe
petitioner because he anticipates that at somefuturetime,afuturegovernmentmaytakeactionprejudicialtothe
petitioner on the basis of the judgment in S.C. Application No. 20/83. If the impugned order properlyinterpretedcanhave
an adverse effect on the petitioner, then the petitioner would certainly be running a risk of such consequences. Butonthe
other hand if the anticipated adverse consequences were to flow from some action based on a misunderstanding ofthatorder,
then the petitioner must seek relief not against the order but against the person or persons who performsuchwrongfulact
and move in the matter at the appropriate time. It was admitted by counsel that thepetitionerhadbeenpromotedbythe
government subsequent to the court order. Hence it is apparent to everyone that the court order he is now seeking tocanvass
has not affected the petitioner as a Police Officer or stood in the way of his promotions in the police force.Intheface
of these developments is not the petitioner trying to blow both hot and cold? He cannot be allowed tosayatoneandthe
same time that the impugned order affects him both adversely and not adversely. To say theleastthepetitioner'spresent
application is misconceived. In any event his present application is premature, contingent and based on mere speculation.
For the above reasons and the reasons given by the Chief Justice, I am of the view that the court has neitherthepowerto
allow this application nor is it one where we ought to grant relief. I agree to the order made by the Chief Justice.
The above named petitioner-respondent, who is a well-known figure in the political life of thisIslandRepublic,filedin
this Court, on 8.4.83, Application bearing No. 20/83, in terms of the provisions of Article 126 (2) of the Constitution,and
the Rules of Court made by this Court under the said Constitution, against the aforementioned1sttothe3rdrespondents
(who were also the 1st to 3rd respondents respectively in the said application) on the ground: that, on 8.3.83-whichwas
the International Women's Day-when she went into the Kollupitiya Police Station, shewasillegallyarrestedanddetained
therein by the 1st respondent, the Officer-in-Charge of the said PoliceStation,whodidalso,withinthesaidPolice
Station, subject her to cruel, inhuman and degrading treatment:thatsuchconductonthepartofthe1strespondent
constituted a violation of the fundamental rights guaranteed to her by Articles 11 and 13 (1) of the Constitution:thatshe
was, therefore, entitled to seek relief and redress in terms of the provisions of Article 126 (2) of the Constitution.
The 1st respondent filed an affidavit repudiating the allegations made by the petitioner-respondent againsthim.Hedenied
that he either arrested the petitioner-respondent or subjected her to any form of degrading treatment as allegedbyherin
her petition and affidavit. The 2nd respondent also filed an affidavit in which he too repudiated the allegations set outby
the petitioner-respondent. The proxies of the 2nd and 3rd respondentswerebothfiledbyanofficeroftheAttorney-
General's Department: and the learned Additional Solicitor-General, who appeared for the 2ndand3rdrespondentsatthis
inquiry before this Court, appeared for both the 2nd and 3rd respondents at the inquiry into the said Application No.20/83.
In the said earlier proceedings, an affidavit, dated 9.5.83 and marked 2R1, from thepetitioner,InspectorGaneshanantham,
was tendered to Court by the Attorney-at-law appearing for the 2nd and 3rd respondents. Inthataffidavitthepetitioner-
Inspector Ganeshanantham - averred that he arrested the petitioner-respondent on the GalleRoadclosetotheKollupitiya
Police Station: that she was, at that time, participating in a procession, which was being conducted withouttheauthority
of a lawful permit, along Galle Road from the direction of the Galle Face junction towards the Kollupitiya junction: thathe
directed the members of the said, procession to disperse: that thepetitioner-respondentthereuponpushedhimasideand
proceeded with the procession, disobeying his directions and did obstruct him in the discharge of his duties: thathethen,
along with several police constables, arrested the petitioner-respondent and fourothers,:thatthesaidarrestwasin
accordance with the law, and that they were informed of the reason for their arrest. A consideration of 2R1makesitclear
that the petitioner was, in that affidavit, specifically answeringtheseveralavermentssetoutinthepetitionand
affidavit which had been filed by the petitioner-respondent, and that the petitioner has expressly denied anyconductwhich
would amount to a violation of any of the fundamental rights pleaded by the petitioner-respondent.
In answer to the aforesaid affidavits of the 1st and 2nd respondentsandalsothesaidaffidavit2R1,thepetitioner-
respondent filed her further affidavit, dated 16.5.83. In the said affidavit thepetitioner-respondentspecificallydenied
that she was arrested outside the Kollupitiya Police Station and reiterated her position that she went intotheKollupitiya
Police Station of her own accord and that she was not taken into the said Police Station under arrest. Thusthepetitioner-
respondent, far from accepting anyarrestalongtheGalleRoad,notonlycategoricallyrepudiatedthepetitioner's
allegations, but also flatly contradicted the petitioner. It is not as if she was uncertain in her own mind astowhathad
happened outside the premises of the said Police Station with theresultingpossibilitythattheversiongivenbythe
petitioner could well have been the true version of what happened at the time in question. Far from itfor,therewasnot
even a hint of uncertainty. As far as she was concerned her version was the truth, thewholetruth,andnothingbutthe
truth. The position taken up by her was quite clearly that what was averred not only by the 1st respondent butalsobythe
petitioner was a tissue of falsehood, unworthy of any consideration whatever.
It was in this state of the evidence that the Court came to make its order at the conclusionofthesaidearlierinquiry
into the said Application No. 20/83. This Court, by its Order dated 8.6.83, held that the allegation of degradingtreatment,
made by the petitioner-respondent, has not been established by proof to the high degree of probabilityrequired:thatthe
petitioner-respondent has not affirmatively proved, inthemannerrequired,thatshewasfirstarrestedbythe1st
respondent inside the Police Station: that, on his own showing, Sub-Inspector Ganeshanantham, the petitioner, wasguiltyof
arresting the petitioner-respondent in contraventionoftheConstitutionalprohibitionofarrestexceptaccordingto
procedure established by law. The said findings of the Court make it clear that, although the Court did notacceptandact
upon the evidence of the petitioner-respondent, and that which was led on herbehalf,butacceptedthe1strespondent's
denial that he committed either of the wrongful acts alleged by the petitioner-respondent, yet, the Courthasproceededto
give relief to the petitioner-respondent upon a basis which was not only not accepted by the petitioner-respondent butwhich