Legal Services and Laws of Sri Lanka
SLR - 1985 Vol.2, Page No - 341
PETER LEO FERNANDO
THE ATTORNEY-GENERAL AND TWO OTHERS
COLIN-THOME, J., RANASINGHE, J., ATUKORALE, J., TAMBIAH, J. AND L. H. DE
S. C. APPLICATION No. 31/85.
JULY 11, 1985.
Constitution- Fundamental Rights - Violation by Judge - Does it amount to infringement by executive or administrationaction
? - Immunity for judicial acts -Articles 4, 1!, 13, 14, 17 and 126 of the Constitution - Code of Criminal ProcedureActNo.
15 of 1979, s. 136, 139 and 142 - Section 70 of the Penal Code - Crown (Liability in Delict) Act No. 22 of 1969, s: 2 (5).
The petitioner (Peter Leo Fernando) was seated in the well of the Magistrate's Court of Attanagalla when a casebetweentwo
other parties but involving the estate of which he was the Superintendent was goingon.Onanallegationbythelawyer
appearing for one of the parties that the petitioner had intimidated his client's wife, the MagistrateofAttanagalla(2nd
respondent) who was hearing' the case ordered the detention of the petitioner in the Courtcell.Thepetitionerwasthen
kept in the cell in the custody of the Prisons Officer (3rd :respondent). About 4 hours later having verifiedthecomplaint
of intimidation and- finding no. allegation there against the petitioner, the 2nd respondent directed thepetitionertobe
released:: The petitioner complaining of violation of his fundamental rights guaranteedundertheConstitutionandunder
Articles 17 and 126 of the Constitution filed this application seeking relief and damages in a sum of Rs. 50,000.
(1) The Magistrate's order of detention was wrong for non-compliance with the provisions of the CodeofCriminalProcedure
Code Act, s. 136, 139 and 142 (2) but there was no evidence of lack of good faith on the part of the Magistrate.
(2) Every judge, whether of superior or inferior courts, enjoys immunity from liability whether indelictorcriminallaw
for acts done in the exercise of his judicial functions.
(3) The 2nd respondent had improperly and unlawfully detained the petitioner. A judicialorderdoesnotbecomeconverted
into an administrative or executive act merely because it is unlawful. The detention of the petitionerdoesnotconstitute
executive or administrative action within the meaning of Articles 17 and 126 of the Constitution.
(4) The State is not liable for anything done by a judge in the discharge or purported discharge of his functions as aJudge
or for anything done by any person in connection with the execution of judicial process.
(5) An officer of the State who in the course of carrying out an order made by ajudgeintheexerciseofhisjudicial
functions violates the fundamental right of a person is free from liability if indoingsoheactedingoodfaithnot
knowing that the order is invalid.
Cases referred to
(1)R. v. Secretary of State for lndia in Council and Others, Ex parte Ezekiel  2 All E. R. 546.
(2) Kesri v. Muhammad Baksh [ 1896] 18 All. 221.
(3) Sirros v. Moore and Others [ 1974] 3 All E. R. 776 [ 1975] 1 OB 118.
(4) Maharaj v. A. G. of Trinidad and Tobago (No. 2)  A. C. 385 (PC),  2 All E. R. 670.
(5) Maharaj v. A. G. of Trinidad and Tobago (No. 1)  1 All E. R. 41, (RC.).
(6) In re Mc C. (A Minor)  3 WLR 1227.
(7) A. K. Velmurugu v. A. G. and Others: Fundamental Rights Decisions Vol. 1 p. '1'80, 224:'
(8) Perera v. University Grants Commission: Fundamental Rights Decisions Vol. 1 p. 103, 1 12, 113.
(9) Wijetunga v. Insurance Corporation and Another (19821 1 Sri LR 1, 6. 7 Fundamental Rights Decisions Vol. 2 p. 264.
(10) Wijeratne v. People's Bank [ 1984] 1 Sri L. R.1.
(11) Naresh S. Murajikar v. State of Maharashtra, AIR  S. C. 1.
(12) Chokalinge v. A. G. of Trinidad and Tobago [ 1981] 1 All E. R. 244.
(13) Anderson v. Gorrie [ 1895] 1 Q. 8. 668.
(14) Fray v. Blackburn [ 1863] 3 B. & S. 576, 578.
(15) Garnett v. Ferrand [ 1827] 6 B & C. 611.
(16) Miller v. Seare  2 Wm. B 1. 1141, 1145.
(17) Mathews et al v. Young [ 1922] AD 492, 509, 510.
(18) Penrice v. Dickinson (1945] AD. 6, 14, 15.
(19) Dayananda v. Weeratunga S.I. Police et al. S.C. Application 97/82 - S.C. Minutes of 20.1. 1983 Fundamental Rights
Decisions, Vol. 2 p. 291.
(20) Kumarasinghe v. A. G. et al S. C. Application 54/82 - S. C. Minutes of 6.9.1982.
APPLICATION for infringement of Fundamental Rights under Article 126 of the Constitution.
F. W. Obeysekera with C. P. llangakoon, S. Parameshwaran and P. E. Satyaseelan, for petitioner.
R. K. W. Gunasekera, with Ranjan Mendis, and Chandrasiri Kotigala for 2nd respondent.
Sarath Silva, D. S. G. with Ananda Kasthuriaratchi, S.C. for 3rd respondent.
September 9, 1985.
This is an application for relief under Article 126 of the Constitution by the petitioner.
A certain Talgaha Kumbure Banda had privately instituted section 66 proceedings relating to Bebilapitiyawatte against Dr.F.
RanilSenanayakeinMagistrate'sCourt,AttanagallaCaseNo.27902.Thepetitioner is the Superintendent of
The Inquiry into the case was fixed for the 26th February, 1985. On this day the petitioner, who was not a partyorwitness
in the case, was seated in the well of the court with members of the public when Mr. Wijaya Gunaratne,Attorney-at-law,who
appeared for the plaintiff Banda stated to the Magistrate, the 2nd respondent, that the petitioner had on 20.2.1985goneat
night passing the house of the said Banda and threatened to shoot his wife Cicilihamy. Mr. AshleyHerat,whoappearedfor
the defendant, Dr. F. Ranil Senanayake told the Magistrate that there was no complaint of such a threatandchallengedthe
plaintiff and his lawyer to produce the. complaint of Cicilihamy to the Police.
The 2nd respondent directed the Mirigama Police to fetch the aforesaid complaint and withoutintimatingtothepetitioner
the charge against him and without inviting the petitioner to answer any charge the petitioner "was justmarchedandflung
into the cell" by the Fiscal, W. P. Karunadasa, the 3rd respondent, on . the orders of the2ndrespondent.Thepetitioner
was locked up in the cell "in disgrace among criminals from 10.45 a.m. to 2.45 p.m.".
The complaint (P1) which was produced by the Police had not a word of the petitionerthreateningtoshootCicilihamy.It
stated that one Wije had said if the barking dog is not tied it will be shot. At this stage the 2nd respondentreleasedthe
petitioner at 2.45 p.m.
Mr. Ashley Herat demanded an apology but it was not given by Banda's lawyer or the 2nd respondent.
The petitioner claims that his fundamental rights under Articles 11, 13 (1), 13 (2) and 14 (1) (b) havebeeninfringedand
prays for relief and damages in the sum of Rs. 50,000.
The complaint (P1) of Cicilihamy aged 77 years, wife of P. K. Banda, to the Mirigama Police made on 21.2.85 stated
"Yesterday when I was at home with my husband and children at about 8.30 p. m. Leo, Gunadasa and Wije came passingnearour
house. Leo had a gun. At that stage our dog barked at them. Then Wije said if the dog is notkepttieditwillbeshot.
Thereafter Wije abused in filthy language. Gunadasa pelted stones at our house. In thismannerthesepersonsharassedus
The 2nd respondent stated in his affidavit that on the 26th February 1985 when the case No. 27902 was calledinhisCourt,
Mr. Wijaya Gunaratne, Attorney-at-Law, who appeared for the plaintiff" complained to court that at about8.30p.m.onthe
21st February 1985 a person called Leo who was armed with a shotgun along with one Gunadasa and one Wilecommittedcriminal
trespass on the compound of Cicilihamy and threatened to open fire. Wile abused Cicilihamy in obscene languageandGunadasa
petted stones at her house Cicilihamy is the wife of Talgaha Kumbure Banda the informant in case No. 27902 whichwasbefore
Court at the time.
The gravamen of the complaint of Mr. Wijaya Gunaratne was that there wasanattempttounderminetheauthorityofthe
Magistrate's Court by intimidating those who had at the time invoked the jurisdiction of the Magistrate's Court inorderto
seek redress for various high-handed acts that had led to an imminent breach of the peace in the area.
Thereafter Mr. Wijaya Gunaratne stated to Court that oneofthepersonswhohadcommittedtheoffencesoftrespass,
intimidation, mischief and assault, within the meaning of the Penal Code, namely, one Peter LeowaspresentinCourtand
pointed at the petitioner who was a member of the public sitting in the Court.
Mr. Ashley Herat, Attorney-at-Law, who appeared for the defendant Dr. F. Ranil Senanayake stated to Court that therewasno
such complaint of a threat and no. consequent inquiry from the petitioner about such a threat andchallengedtheplaintiff
in M. C. Attanagalla 27902 and his lawyer to produce the complaint by Cicilihamy to the Police that the petitioner, H.Peter
Leo Fernando had threatened to shoot her.
The 2nd respondent then directed the Mirigama Police to fetch the complaint immediately.
On the basis of the complaint made by Mr. Wijaya Gunaratne in terms of section 136 (1) (a) of the Code of CriminalProcedure
Act No 15 of 1979 that an offence had been committed within the territorial jurisdiction of the Magistrate's Courtthe,2nd
respondent directed the 3rd respondent to detain the petitioner immediately. The time was approximately 10.45 a.m.
At about 2,45 p.m. the Mirigama Police produced the complaint P1. Having perused thecomplaintandonthebasisofthe
submissions made by Mr. Ashley Herat and on the undertaking given by the petitioner that he would not conducthimselfina
manner that would constitute a breach of the peace the 2nd respondent avers that he decided to releasethepetitionerfrom
detention because it appeared to him that the Police had not concluded their investigation into the complaint.
The 2nd respondent stated that his decision to detain the petitioner was in the exercise of judicial authority andtherefore
it was a judicial act done in good faith. There was no malice on his part whatsoever when he detained the petitioner. Hedid
not know the petitioner prior to the 26th February, 1985.
The 3rd respondent stated in his affidavit that at all times' materialtothisapplicationheworkedasaJailGuard
attached to the Mahara Prison and never held the post or functioned as Fiscal, Gampaha, Western Province, as allegedbythe
On the 26th February 1985 five Jail Guards including himself were assigned the duty of escorting about 20personswhowere
in custody and had to be produced before the Magistrate's Court of Attanagalla on orders received from Court. The 20persons
were kept in a cell within the Court House. This cell was an enclosure with an opening for persons to go in and come out.It
had no door and was not lockable. At about 10.45 a.m. the petitionercameintothecellonadirectionfromthe2nd
respondent and he remained there till 2.45 p.m. At that time the other jail guards and hewerenearthecellengagedin
escort duty. He denied having done anything in violation of the rights of the petitioner.
The petitioner in his counter affidavit stated that on the 26th February, 1985, no complaint asacomplaintundersection
136 of the Code of Criminal Procedure Act was ever made by Mr. Wijaya Gunaratne nor was he examined uponsuchcomplaint.A
copy of the journal entry of the 26th February, 1985 in M. C. Attanagalla 27902 was produced marked P2 which containsnota
word of such an examination of Mr. Wijaya Gunaratne.
Mr. Gunaratne referred only to the petitionerthreateningtoshootCicilihamy.Therewasnothingabouttrespassand
The petitioner stated that there was not a particle of truth in the statement that the Court releasedhimbecausehegave
an, undertaking to Court to behave well in the future.
It is necessary at this stage to examine the submission of the 2nd respondent that on the basis of the complaint made byMr.
Wijaya Gunaratne in terms of section 136 (1) (a) of the Code of Criminal Procedure Act, No. 15 of 1979, that anoffencehad
been committed within the territorial jurisdiction of the Magistrate's Court in Attanagalla the 2nd respondentdirectedthe
3rd respondent to detain the petitioner immediately.
Chapter XIV (sections 136 to 144) of the Code of Criminal Procedure Act deals with the procedure governing the"Commencement
of Proceedings before Magistrates' Courts". Section 136 (1) (a) reads as follows
"136. (1) Proceedings in a Magistrate's Court shall be instituted in one of the following ways
(a) On a complaint being made orally or in writing to a Magistrate of such court that an offencehasbeencommittedwhich
such court has jurisdiction either to inquire into or try.
Provided that such a complaint if in writing shall be drawn and countersigned by a pleader and signed by the complainant."
Section 139 deals with the Issue of Process. The relevant portions of section 139 : read
139.(1) "Where proceedings have been instituted under paragraph (a). . . . of section136(1)andtheMagistrateisof
opinion that there is sufficient ground for proceeding against some person who is not in custody :
(a) if the case appears to be one in which according to the fourth column of the First Schedule asummonsshouldissuein
the first instance, he shall, subject to the provisions of section 63, issue a summons for the attendance of such persons
(b) if the case appears to be one in which according to that column a warrant should issue in the firstinstance,heshall
issue a warrant for causing such person to be brought or to appear before the court at a certain time
(i) the Magistrate may in any case, if he thinks fit, issue a summons in the first instance instead of a warrant
(ii) -in any case under paragraph (a). . . . of section 136 (1), the Magistrate shall, before issuingawarrant,andmay,
before issuing a summons, examine on oath the complainant or some material witness or witnesses."
Under section 141 : "Every examination held by the Magistrate under section 139 shall be recorded in the mannerprovidedin
section 138 (2)."
Section 138 (2) reads
"Every examination held by the Magistrate.... shall be reduced into writingandafterbeingreadoverandifneedbe
interpreted to the person examined shall be signed by him and also by the Magistrate and dated."
Under section 142 (2)
"Where the offence appears to be one tribal summarily in a Magistrate's Court the Magistrate shall follow the procedurelaid
down in Chapter XVII."
Section 182 requires the particulars of the case to be stated to the accused :
182 (1) "Where the accused is brought or appears before the court the Magistrate shall ifthereissufficientgroundfor
proceeding against the accused, frame a charge against the accused.
(2) The Magistrate shall read such charge to the accused and ask him if he has anycausetoshowwhyheshouldnotbe
If the accused pleads not guilty to the charge the Magistrate shall proceed to trial according to the procedure laid down in
sections 183 and 184.
A preliminary question to be decided is whether Mr- Wijaya Gunaratne was a complainant inthiscaseinthestrictlegal
sense. In, R v. Secretary of State for India in Council and Others, Ex. parte-Exekiel
(1) at the hearing at Bow Street a junior counsel on one side was called as a witness to provecertainaspectsofIndian
law and continued thereafter to act as counsel in the case. No objection was taken to this by counsel on the otherside.It
was held that this was irregular and contrary to practice. A barrister may be briefed as counsel in a case orhemaybea
witness in a case. He should not act as both counsel and witness in the same case."
In the instant case Mr. Gunaratne was a pleader and not a witness and his remarks to Court were basedentirelyonhearsay.
As the . Magistrate took cognizance of an offence on a complaint by Mr. Gunaratne, the only manner inwhichhecouldhave
disposed of it was to have examined the complainant Cicilihamy, and after holding such inquiryasheconsiderednecessary
under section 136 (1)(a) made either an order of dismissal or issued process against the accused under section 139.
The gravamen of the complaint was one of criminal intimidation, an offence punishable under section 486 ofthePenalCode.
According to the fourth column of the First. Schedule of the Code of Criminal Procedure Act wheretheoffenceiscriminal
intimidation a warrant shall be issued by the Magistrate for causing the accused to be brought or to appear before thecourt
at a certain time. Before issuing a warrant the Magistrate has to examine on oath the complainant orsomematerialwitness
or witnesses. Every examination held by the Magistrate under section 139 shall be recorded in the manner provided insection
The requirement as to the examination of the complainant is imperative and should bestrictlycompliedwithinorderto
prevent a false, frivolous and vexatious complaint being made to harass an innocent partyandtowastethetimeofthe
Court. The substance of the examination, reduced to writing, should be distinct from the complaintitself.Theexamination
is not to be a mere form, but must be a full and intelligent inquiry into the subject-matter of thecomplaint,carriedfar
enough to enable the Magistrate to exercise his judgment and see if there is a prima faciecaseorsufficientgroundfor
proceeding. The examination should be on facts which are within the complainant's knowledge : Kesri v. Muhammad Baksh(2)
Chitaley and Rao, The Code of Criminal Procedure, Vol. 1, 1121 Sohoni's The Code of Criminal Procedure, 16th Ed., Vol.11,
I hold that in the instant case the Magistrate had misinterpreted the procedure laid down in section 136(1)(a),139and
142 (2) resulting in the petitioner being improperly detained for four hours in a cell. There is however no evidenceofthe
absence of good faith on the part of the Magistrate.
The main question for determination in this case is whether the action of the 2nd respondent ordering thedetentionofthe
petitioner constitutes "executive or administrative action" within the meaning of Articles 17 and 126 of the Constitution
17. "Every, person shall be entitled to apply totheSupremeCourt,asprovidedbyArticle126,inrespectofthe
infringement or imminent infringement, by executive or administrative action, of a fundamental right to which such personis
entitled under the provisions of this Chapter."
126(1) "The Supreme Court shall have sole and exclusive jurisdiction to hear anddetermineanyquestionrelatingtothe
infringement or imminent infringement by executive or administrative actionofanyfundamentalrightorlanguageright
declared and recognized by Chapter III or Chapter IV."
The phrase "executive or administrative action" in Articles 17and126hastobeinterpretedinthecontextofthe
provisions of the Constitution.
Articles 3 and 4 which are the basic Articles of the Constitution read
"3. In the Republic of Sri Lanka sovereignty is in thePeopleandisinalienable.Sovereigntyincludesthepowersof
government, fundamental rights and the franchise.
4. The Sovereignty of the People shall be exercised and enjoyed in the following manner :
(a) the legislative power of the People shall be exercised byParliament,consistingofelectedrepresentativesofthe
People and by the People at a Referendum
(b) The executive power of the peopleincluding the defence of Sri Lanka,shallbeexercisedbythePresidentofthe
Republic elected by the People.
(c) the judicial power of the People shall be exercisedby Parliament through courts,tribunalsandinstitutionscreated
and established, or recognized, by the Constitution, or created and established by law, except in regard to mattersrelating
to the privileges, immunities and powers of Parliament and of its Members, wherein the judicial power of thePeoplemaybe
exercised directly by Parliament according to law
(d) the fundamental rights which are by the Constitution declared and recognized shall be respected, secured and advancedby
all the organs of government, and shall not be abridged, restrictedordenied,saveinthemannerandtotheextent
The legislative power provided for in Article 4(a) is elaborated in Chapters X, XI, XII and Xlll of the Constitution.
The executive power provided for in Article 4(b) is elaborated in Chapters VII, Vlll and IX of the Constitution.
The judicial power which is provided for in Article 4(c) is elaborated in Chapters XV and XVI of the Constitution.
Although there is a duty cast by other constitutional provisions, for example, Articles 4(d),27(2)(a),28and156,on
organs of the State in general and on others, to respect, secure and advance fundamental rights this is nottobeconfused
with the special procedure established for obtaining relief and redress fromtheSupremeCourtunderArticle1,26.The
special procedure can be availed of only in respect of ""executive and administrative action."
Learned Counsel for the petitioner submitted that when a judge orders the detention of a person without authoritytheorder
is not a judicial act it is an administrative act.
In Sirros v. Moore and Others- (3) a judge of a Crown Court had dismissed an-appeal against a recommendation fordeportation
and after giving judgment ordered the appellant to be arrested and detained which the judge had no jurisdictiontodo.The
appellant was detained in the court cells for about 24 hours. The appellant was released by habeas corpus butfailedinan
action for assault and false imprisonment against the judge and against the police officers who executed theorder.Itwas
held that though the judge was mistaken yet he acted judiciallyandforthatreasonnoactionwilllieagainsthim.
Likewise, no action will lie against' the police officers. They areprotectedinrespectofanythingtheydidathis
direction, not knowing it was wrong.
Judges in courts of law enjoy special immunity from actions in tort. Under the old common law the immunity in regardtothe
Superior Court, was absolute and universal with respect to the inferior courts it isonlywhiletheyactwithintheir
The dichotomy between superior and inferior courts has been abolished by the Court ofAppealinSirrosv.Moore(supra)
which has declared that in the changed judicial system of today there mustbethesameruleforalljudges,including
magistrates. Lord Denning, M. R. said : (785)
"In this new age I would take my stand on this. As a matter of principle the judges of superior courts have no greaterclaim
to immunity than the judges of the lower courts. Every judge of the courts of this land - from the highest tothelowest-
should be protected to the same degree, and liable to the same degree. If the reason underlying this immunityistoensure
'that they may be free in thought and independent in judgment' it applies to every judge, whatever his rank. Eachshouldbe
able to do his work in complete independence and free from fear. He should not have to turnthepagesofhisbookswith
trembling fingers, asking himself : 'If I do this, shall I be liable in damages ? So long as he does his work inthehonest
belief that it is within his jurisdiction, then he is not liable to an action.Hemaybemistakeninfact.Hemaybe
ignorant in law. What he does may be outside his jurisdiction-in fact or in law-but so long as he. honestlybelievesitto
be within his jurisdiction, he should not be liable...... Nothing will make him liable except it be shownthathewasnot
acting judicially, knowing that he had no jurisdiction to do it."
The immunity of a judge in delict under Roman-Dutch Law is similar : "No action lies against a judge for acts doneorwords
spoken in honest exercise of his judicial office. If he acts in bad faith or with injurious intention, he will,perhaps,be
liable"-R. W. Lee, An Introduction to Roman-Dutch Law, 4th Ed. 341.
Voet has pertinently stated the rule as follows :
"But in our customs and those of many_ other nations it is rather rare for the judgetomakethesuithisownbyill-
judging. That is because it is a trite rule that he is not made liable by mere lack of knowledge or unwisdom,butbyfraud
only, which is commonly difficult of proof. It would be a bad business with judges especially lower judges who have noskill
in law if in so widespread a science of law and practice, such a variety of views, and such a crowd of cases whichwillnot
brook but sweep aside delay, they should be held personally liable totheriskofindividualsuits,whentheirunfair
judgement -springs not from fraud, but from mistake, lackofknowledgeorunwisdom"-Voet.CommentaryonthePandects,
translated by Percival Gane (1955), Vol. ll, 73.
In Roman-Dutch, Law the same principles govern the immunity of judges of the, superior and inferiorcourtsfromactionin
With regard to criminal liability section 70 of the Penal Code states
70. "Nothing is an offence which is done by a Judge when acting judicially in the exercise of any power which is or whichin
good faith he believes to be given to him by law".
In Maharaj v. A. G. of Trinidad and Tobago No. 2 a barrister was committed to prison forsevendaysforcontemptonthe
order of the High Court Judge. In an earlier appeal reported at Maharaj v. A. G. of Trinidad and Tobago No. 1 (5)thePrivy
Council held that the judge, however inadvertently, had failed to observe a fundamentalruleofnaturaljustice thata
person accused of an offence should be told what he is said to have done plainly enough to give himanopportunitytoput
forward any explanation or excuse that he may wish to advance. The question in the second appeal was whetherthisprocedure
adopted by the Judge before committing the appellant to prison for contempt constituted a deprivationoflibertyotherwise
than by due process of law, within the meaning of section 1(a) of the Constitution of Trinidad and Tobago of 1962, forwhich
the appellant was entitled to redress by way ofmonetarycompensationundersection6.ThemajorityoftheJudicial
Committee of the Privy Council held that section 6 of theconstitutioncreatedanewremedyforthecontraventionof
constitutional rights without reference to existing remedies , that the word"redress"insection6meantcompensation,
including monetary compensation , and that the claim was not a claim in privatelawfordamagesforthetortoffalse
imprisonment, but was a claim in public taw for compensation from the State for deprivation of liberty alone. The appealwas
allowed and the case was remitted to the High Court to assess the amount of monetary compensation to which the appellantwas
Lord Hailsham in a strong dissenting judgment stated at p. 409 in the Maharaj Case No. 2 (supra)
"I must add that 1 find it difficult to accommodate within the concepts of the law a type of liability fordamagesforthe
wrong of another to whom the wrongdoer himself is under no liability at all and the wrong itself is not a tort or delict.It
was strenuously argued for the appellant that the liability of the state in the instant casewasnotvicarious,butsome
sort of primary liability. But I find this difficult tounderstand.Itwasarguedthatthestateconsistedofthree
branches, judicial, executive, and legislative and that as one of those branches, thejudicial,hadintheinstantcase
contravened the appellant's constitutional rights, the state became by virtue of section 6 responsibleindamagesforthe
action of its judicial branch. This seems a strange and unnatural way of saying that the judge had committedtoprisonthe
appellant who was innocent and had done so without due process of law and that someone other than the judge must payforit
(in this case the taxpayer)."
It should be noted, however, that the Constitution of Trinidad and Tobago of 1962 has no provision correspondingtoArticle
126 of the Constitution of Sri Lanka restricting the jurisdiction of the Supreme Court to hearanddetermineanyquestion
relating to the infringement or imminent infringement `by executiveoradministrativeaction"ofanyfundamentalright
declared and recognized by Chapter 111.
Similarly, in In re Mc C. (a minor) (6) a case from Northern Ireland, the defendant, aged 14 years, pleaded guiltybeforea
juvenile court to charges relating to a motor vehicle and was ordered to attendtheattendancecentre.Ashefailedto
attend the attendance centre on four occasions the justices ordered that he be sent to a training school and he wasdetained
pursuant to that order. The defendant commenced a'civilactionagainstthejusticesconstitutingthejuvenilecourt
claiming damages for, inter alia, false imprisonment, trespass to the person and breach of a statutory duty.
The Court of Appeal in Northern Ireland held that the justices had acted "without jurisdiction or in excess ofjurisdiction"
within the meaning of section 15 of the Magistrate's Courts (Northern Ireland) Act 1964 and allowed the defendant's appeal.
Section 15 of the Northern Ireland Act of 1964 provides as follows :
"No action shall succeed against any person by reason of any matter arising in the execution or purportedexecutionofhis
office of resident magistrate or justice of the peace, unless the court before which the action is brought is satisfiedthat
he acted without jurisdiction or in excess of jurisdiction."
The House of Lords, dismissing the appeal of the justices held that Article 15 (1) of the TreatmentofOffenders(Northern
Order 1976 was intended to ensure that a custodial sentence was not imposed for the first time on adefendantwhowasnot
legally represented unless such lack of representation wasthroughhisownchoice thatalthough.thejusticeshad
jurisdiction to try and convict the defendant of the offence charged and to order his detention, the omission toinformhim
of his right to legal aid amounted to a failure to fulfil a statutory condition precedenttothemakingofthetraining
school order , and that, accordingly, the justices acted "without jurisdiction orinexcessofjurisdiction"withinthe
meaning of section 15 of the Act of 1964, thus rendering them liable in a civil action for damages.
Lord Bridge in his judgment in In re Mc. C. (supra) referring to the judgment of Lord DenninginSirrosv.Moore(supra)
expressed the view that the distinction between the immunity of superior courts and justicesstillexists.Thisviewwas
expressed obiter as this aspect of the subject was not argued by counsel.ThejudgmentinSirrosv.Moore(supra)was
considered but not overruled.
In Sri Lanka there is no enactment corresponding to section 15 of the Northern IrelandActof1964.Inourcountrythe
immunity of a judge from actions in tort or delict is governed by the common law. Furthermore, inEnglandjusticesconsist
of stipendiary magistrates and lay benches. There is no such distinction in Sri Lanka.
It is necessary now to examine the interpretation of theexpression"executiveoradministrativeaction"givenbythe
Supreme Court. in A. K. Velmurugu v. A. G. and Others. (7), Sharvananda, J. stated "It is to benotedthattheclaimfor
redress under Article 126 for what has been done by on executive officer of the State is a claim against the Stateforwhat
has been done in the exercise of the executive power of the State. This is not vicarious liability it is theliabilityof
the state itself it is not a liability in tort at all it is a liability in the public law of the State -. vide :Maharaj
v. A. G. of Trinidad (1978) 2 A.E.R. 670 at 679 (P.C.)."
In Perera v. University Grants Commission (8) the question arosewhethertheactionoftheU.G.C.indeterminingthe
criterion for admission to the University in 1980 constituted "executive or administrative action." Sharvananda, J. stated
instrumentalities exercising governmental functions."
Thereafter, Sharvananda, J. examined the nature of the functions of the U.G.C. and the degree ofcontrolexercisedbythe
Government and concluded as follows :
"The University Act has assigned the executionofaveryimportantGovernmentalfunctiontotherespondent.Inthe
circumstances, it is idle to contend that the respondent is not an organ or delegate of the Government andthatitsaction
in the matter of admission ofstudentstotheUniversitiesunderitdoesnothavethecharacterofexecutiveor
administrative action within the meaning of Article 126 of the Constitution."
In Wijetunga v. Insurance Corporation and Another (9) the question arose whether disciplinary action taken bytheInsurance
Corporation against one of its employees constituted "executive or administrative action". Sharvananda, A.C.J. observedthat
"The term 'executive action' comprehends official actions of all Government Officers". Healsostatedthat"Thequestion
whether the Insurance Corporation of Sri Lanka is or is not virtuallyadepartmentoftheStateoraservantofthe
Government would be dependant on the provisions of the Insurance Corporation Act No. 2 of 1961.Hencewehavetoanalyze
them to determine the nature of its functions, the precise degree of control exercised by the Government over it andwhether
the amount of control establishes the identity of the Corporation as part of, the Government." Theprincipleemergingfrom
this judgment is that the test is the nature of the function and the degree of control.: See also Wijeratne v. People'sBank
H. W. R. Wade in Administrative Law 5th edition at p. 70, says this :
"Judges may be regarded as servants of the Crown in the sense they are. 'Her Majesty's Judges'holdingofficesgrantedby
the Crown and bound by oath well and truly to serve the sovereign in those offices. On the other hand itisaxiomaticthat
judges are independent : the Crown has no legal right to give them instructions, andoneofthestrongestconstitutional
conventions makes it improper for any sort of influence to be brought to bear upon them by the executive."
In the instant case applying the function and control test to the 2nd respondent he was clearly not subject to Governmentor
Ministerial control. Our Constitution accords to judicial officers independence from otherorgansofGovernment.Articles
107 and 117 under the sub-title: "Independence of the Judiciary" are clearly aimed at this objective. The 2nd respondenthad
improperly and unlawfully detained the petitioner inthiscase.Ajudicialorderdoesnotbecomeconvertedintoan
administrative or executive act merely because it is unlawful. In Sirros v. Moore (supra) and Maharal v. A.G.ofTrinidad
and Tobago (No. 2) (supra) the unlawful orders of the Judge detaining the respective appellantswereheldtobejudicial
acts. In S. C. 54/82 (minutes of 6.9.82) (20) and S.C. 97/82 (minutes of 20.1.83) (19) it was held thatremandordersmade
by the Magistrate in the wrongful exercise of judicial discretion as a result ofmisleadingPolicereportswouldnotbe
subject to under article 126.
Within the framework of our Constitution there is a review reasonforexcludingjudicialactionfromreviewunderthe
procedure provided for in Article 126. Articles 138 and 139 invest the Court of Appeal withanappellatejurisdictionfor
the correction of all errors in fact or in law which shall be committed by any Court of FirstInstance,tribunalorother
institution. Under Article 128 an appeal shall lie to the Supreme Court from any final order, judgment,decreeorsentence
of the Court of Appeal in any matter or proceedings, whether civil or criminal which involves a substantial question oflaw.
In the circumstances there is no basis for a collateral jurisdiction in respect of such actionunderArticle126.Inthe
case of Naresh S. Murajikar v. State of Maharashtra (11) heard by a Bench of nine Judges, it was held by a majority ofeight
to one, that the remedy in respect of judicial action is by way of appeal and not by way of writ-petition for a violationof
fundamental rights. Similar reasoning was adopted in the decision of the Privy Council in Chokalinge v.A.G.ofTrinidad
For the reasons stated in this judgment I hold that the impugned order of the 2nd respondentdetainingthepetitionerwas
neither executive nor administrative action. The application for relief against all three respondents underArticle126of
the Constitution is dismissed but without costs.
ATUKORALE, J. - I agree.
TAMBIAH, J. - I agree.
L. H. DE ALWIS, J. - I agree.
On the 26th February 1985 the petitioner proceeded to the Magistrate's Court of Attanagalla. He occupied a seat inthewell
of the court-house. The 2nd respondent was the Magistrate of that Court. Case No. 27902, in which a person named T. K.Banda
had instituted proceedings relating to a dispute in respect of a land called Bebilapitiyawattaagainstarespondentnamed
Dr. F. R. Senanayake, was taken up for hearing by the 2nd respondent. The petitioner was the Superintendent of that land.An
attorney-at-law, named Wijaya Gooneratne, appeared for T. K. Banda referred to above and Ashley Herath, also anattorney-at-
law, represented Dr. Senanayake. During the course of his submissions, the attorney-at-law, Wijaya Gooneratne,informedthe
2nd respondent that the petitioner had, armed with a gun, proceeded along with two others to the compoundofthehouseof
the wife of the aforesaid Banda and had threatened to shoot her.Sayingso,WijayaGooneratnepointedouttothe2nd
respondent the petitioner who was then seated in Court. This allegation brought the opposing attorney-at-law, AshleyHerath,
to his feet. Challenging Banda and his attorney-at-law to produce any such complaint, Ashley Herath pointedlytoldthe2nd
respondent that there has been no complaint of any such threat. The 3rd respondent thereupon directedtheofficersofthe
Police Station Mirigama, who were present, to "fetch the aforesaid complaint immediately". The 2nd respondentalsodirected
the 3rd respondent, a jail-guard of the Mahara Prison who had come to court on duty, `to detain the petitionerimmediately".
The petitioner was thereupon detained in the court cell. The time then was 10.45 in the forenoon.Aboutfourhourslater,
around 2.45 p.m. in the afternoon, the Mirigama Police officers produced the alleged complaint, marked P1:Afteraperusal
of the said complaint the 2nd respondent decided to release the petitioner upon an undertaking given bythepetitionernot
to conduct himself in a manner which would constitute a breach of the peace.
The matter would ordinarily have ended there. The petitioner, however, was not content to letitrestthere.'Hedecided
otherwise. He has now come before this Court, complaining that what the2ndrespondentsaidanddidthatday,inthe
Magistrate's Court at Attanangalla, constituted a violation of his, thepetitioner'sfundamentalrightsguaranteedunder
Articles 11 (freedom from torture), 13 (freedom from arbitrary arrest and detention) and 14 (freedom of movement).
The 2nd respondent, on the other hand, contends that what was donebyhimonthedayinquestionintheAttanagalla
Magistrate's Court was done by him "in the exercise of judicial authority" and constituted"ajudicialactdoneingood
faith", with no malice.
In his submissions made to this Court, learned Counsel for the petitioner quite clearly andcategoricallystatedthatthe
petitioner does not allege any malice on the part of the 2nd respondent towards the petitioner, and doesnotchallengethe
bona fides of the 2nd respondent. He, however, contended that, in directing that the petitioner be taken into custody andbe
detained, the 2nd respondent was - in the words of learned Counsel- "acting as a policeman exercising the coercivepowerof
The 3rd respondent, in repudiating liability, maintained that he had nothing to do with what happened within the courthouse
that day, and that what actually happened was that : "the petitionercameintothe'cell'onadirectionofthe2nd
respondent and he remained in the cell' till about 2.45 p.m." The allegation made by thepetitionerthatitwasthe3rd
respondent who carried out the direction of the 2nd respondent finds support in the affidavitofthe2ndrespondent.The
liability of the 3rd respondent will, therefore, be considered on the footing that he did, in the executionofadirection
given to him by the 2nd respondent, detain the petitioner in the court cell on that day from 10 45 a. m. to 2.45 p. m.
The issues which arise for determination in this case call for a consideration of the question of judicialimmunityagainst
civil liability for acts done by judges in their judicial capacity - a matter which is of the utmost importance notonlyto
the judiciary but also to all citizens alike, whatever be their station in life.
That persons exercising judicial functions in a court are exempt from all civil liability whatsoeverforanythingdoneor
said by them in their judicial capacity is a rule of the highest antiquity - (Halsbury - 4th Ed. - Vol.1.para206).The
object of such judicial privilege is not to protect malicious or corrupt judges but to protect the public from the dangerto
which the administration of justice would be exposed if the persons concerned therein were subject to inquiry astomalice,
or to litigation with those whom their decisions might offend, and to ensure that such persons administer thelawnotonly
independently and freely and withoutfavourbutalsowithoutfear-(Halsbury:para207).Wadeinhisbookon
Administrative Law (4th Ed.), sets out the object as being"tostrengthentheir(judges")independence,sothattheir
decision may not be warped by fear of personal liability. The reason for such judicial immunity was also explicitly setdown
by Lord Denning, M. R. in the year 1974 in the Court of Appeal in the case of Sirros v. Moore (supra) which will bereferred
to later on in this judgment".
Towards the end of the nineteenth centuryin the year 1895 the Court of Appeal inEnglandhadoccasiontoconsiderthe
question of the immunity of judges in the case of Anderson v. Gorrie(13)wherethreejudgesoftheSupremeCourtof
Trinidad and Tobago were sued in damages for acts though done by them in their judicial capacity but nevertheless allegedto
have been done by them maliciously, without jurisdiction and with the knowledgeofabsenceofjurisdiction.LordEsher,
speaking on behalf of the Bench, :stated that by the common law of England no action will lie against a judge of aCourtof
Record for doing something within his jurisdiction but doing it maliciously and contrary to good faith, andthatsuchrule
has, from 'earliest times, rested on the ground that if such an action would lie the judges would loosetheirindependence,
and that the absolute freedom and independence of, the judges is necessaryfortheadministrationofjustice,andthen
proceeded to re-affirm the principle, which had been laid down earlier in the case of Fray V. Blackburn (14)
"It is a principle of our law that no action will lie against. a judge of one of the SuperiorCourtsforajudicialact,
though it be alleged to have been done maliciously and corruptly .... I.". The public are deeplyinterestedinthisrule,
which indeed exists for, their benefit, and was established in order to secure the independence of thejudges,andprevent
their being harassed by vexatious actions ........ To my mind there is no doubt that the proposition is true toitsfullest
extent that no action lies for acts done or words spoken by a judge in the exerciseofhisjudicialofficealthoughhis
motive is malicious and the acts or words are not done or spoken in the honest exerciseofhisoffice.Ifajudgegoes
beyond his jurisdiction a different set of considerations arise"
Sirros v. Moore (supra) came up before the Court of Appeal in England in July 1974. Sirros, a Turk,hadbeenpermittedto
enter England on condition of a limited stay. He overstayed such period, andaDeportationOrderwasmadebytheHome
Secretary. On being convicted by the Magistrate, S was fined and ordered to be deported. S appealed,butonlyagainstthe
fine. The Circuit Judge, who heard the appeal, dismissed the appeal. When the order dismissing the appeal was made, S gotup
and left court. When the judge saw S leaving court he told the Police "stop him". The PolicefollowedSandtookhiminto
custody. S was then brought back to court and put into the cell. In theafternoonSwasproducedbeforethejudgewho
refused bail. On the following day, the High Court directed that S be released on bail and S was releasedafterbeingin
custody for 1 1/2 days. S thereupon sued the judge and the Police claiming damages for assault andfalseimprisonment.The
Court of Appeal ,held that the judge was entitled to immunity from liability in a civil action for damages, becausetheact
complained of was done by him acting in his capacity as a judge in good faith, albeit mistakenly.Dealingwiththenature
and the extent of such privilege, Lord Denning, M. R., observed, at page 132
"Ever since 1613, if not before, it has been accepted in our law that no action is maintainable against a judge foranything
said or done by him in the exercise of the jurisdiction which belongs to him. The words which he speaks are protectedbyan
absolute privilege. The orders which he gives, and the sentences which he imposes,cannotbemadethesubjectofcivil
proceedings against him. No matter that the judge was under some gross error or ignorance, or was actuatedbyenvy,hatred
and malice and all uncharitable ness, he is not liable to an action. The remedy of the party aggrievedistoappealtoa
Court of Appeal . . . . or to take some such steps to reverse his ruling. Of course, if thejudgehasacceptedbribesor
been in the least degree corrupt, or has prevented the course of justice, he can be punished inthecriminalcourts.That
apart, however, a judge is not liable to an action for damages".
In regard to the reason for such privilege, Lord Denning continued
"The reason is not because the judge has any privilege to make mistakes or to do wrong. It is so that he shouldbeableto
do his duty with complete independence and free from fear" and further quoted with approvalthewordsofLordTenderden,
C.J. in the case of Garnett v. Ferrand (15):
"This freedom from action and question at the suit of an individual is given by the law to the judges not so muchfortheir
own sake as for the sake of the public, and for the advancement of justice, that being free from actions, theymaybefree
in thought and independent in judgement, as all who are to administer justice ought to be."
At the early stages of the development of this principle in England a distinction was drawn as betweenthesuperiorcourts
and the inferior courts, as was recognized by De Gray, C.J. in the year 1777' in the case of Miller v. Seare (16).
"In all cases when the protection is given to the judge giving an erroneous judgment hemustbeactingasajudge.The
protection, in regard to the superior courts, is absolute and universal with respect to theinferior,itisonlywhile
they act within their jurisdiction."
This distinction, however, is not now recognised and is no longer valid. Indisposingofsuchdistinction,LordDenning
stated, in Sirros v. Moore (supra) at page 136, as follows
"In the old days, as I have said, there was a sharpdistinctionbetweentheinferiorcourtsandthesuperiorcourts.
Whatever may have been the reason for this distinction, it is no longer valid ...... Every judge of the courts ofthisland
- from the highest to the lowest - should be protected to the same degree, and liable tothesamedegree.Ifthereason
underlying this immunity is to ensure 'that they may be free in thought and independent in judgment',itappliestoevery
judge, whatever his rank. Each should be able to do his work in complete independence and free from fear ..... so long ashe
does his work in the honest belief that it is within his jurisdiction, than heisnotliabletoanaction.Hemaybe
mistaken in fact. He may be ignorant in law. What he does may be outside his jurisdiction - in fact or in law - butsolong
as he honestly believes it to be within his jurisdiction, he should not be liable. Once he honestly entertainsthisbelief,
nothing else will make him liable. He is not to be plagued with allegations of malice or ill-will or bias or anything ofthe
kind. Actions based on such allegations have been struck out, and will continue to bestruckout.Nothingwillmakehim
liable except it be shown that he was not acting judicially, knowing that he had no jurisdiction to do it."
Ormerod, L.J., expressed the principle, at page 149, that a judge should be protected
"where he gives judgment, or makes an order, in the bona fide exercise of his office, and underthebeliefofhishaving
jurisdiction, though he may not have any ...... With a fully developed appellate structure,supplementedbyhabeascorpus
and other prerogative writs and made accessible to all, or nearly all, by the legalaidscheme,thereisnolongerany
necessity to preserve, in its old form, the remedy by way of personal action against judges."
The principle set forth in Sirros's case (supra) was considered by the Privy Council in1978inthecaseofMaharajv.
Attorney-General of Trinidad and Tobago (No. 2) (supra) where a member of the Bar of Trinidad andTobago,whohadearlier
succeeded before the Privy Council in having an order committing him to prison for sevendaysforcontemptofcourtset
aside on the ground that the committing judge had failed to specify sufficiently the specific nature ofthecontempt,with
which he was being charged, claimed redress for contravention of his constitutionalrights.AlthoughtheAttorney-General
and Maharaj, J., - the judge who made the order of committal - were bothmaderespondentsonlytheAttorney-Generalwas
served with notice and the action was proceeded with against the Attorney-General alone. Although the JudicialCommitteeby
a majority, held that the failure, referred to above, on the part of Maharaj, J.,didconstituteacontraventionofthe
appellant-barrister's constitutional right, and the appellant-barrister was therefore entitled to redress against theState.
Lord Diplock, delivering the judgment of the majority did however affirm : the principle set outinSirros"scase(supra)
that no action would have lain against the judge himself for anything he had done unlawfully whilepurportingtodischarge
his judicial functions : that no action in tort would have been available against the policeorprisonofficerswhohave
acted in execution of judicial process that was valid on the face of it : that the State was not vicariously liableintort
for anything done either by a judge while discharging or purporting to discharge any responsibilities ofajudicialnature
vested in him, or by a police or prison officer in connection with the execution of judicial process. Themajoritydecision
was based on the ground : that the order of Maharaj, J., committing the appellant-barrister to prison was made by him inthe
exercise of the judicial power of the State and the arrest and detention pursuant to the judge's order were effectedbythe
executive arm of the State that, if such detention amounted to a contravention of a constitutional right of theappellant-
barrister, than it was a contravention by the State : that the claim for redress against somethingdonebyajudgeisa
claim against the State for what has been done in the exercise of the judicial power of the State,thatsuchliabilityof
the State is not a vicarious liability, but is a liability of the state itself : that it is a liability in the public lawof
the state and not of the judge himself. Even though the majority affixed liability on the state, yet,theimmunityofthe
judge himself was upheld. It must in this connection be noted that the Constitution of Trinidad and Tobago doesnotcontain
any provision comparable to the provision of Articles 17 and 126 of our Constitution, which, as will bereferredtolater,
restricts the right to relief, as set out therein, only as against "executive or administrative action".
Lord Hailsham, however, dissenting from the majority judgment, took the view : that the majority views amountstoachange
in the existing law which conferred immunity on the judges, on the servants of the executive acting on a judge's warrantand
on the State and providing that the State should pay damages in respect of judicial misconduct even though the judgehimself
remains immune : that it is difficult to accommodate within the concepts of the law a type of liability for damagesforthe
wrong of another when the wrongdoer himself is under no liability at all and the wrong itself is not a tort ordelict.Said
"A judge, of course, is not in the ordinary sense a servant. But he had a further immunity of his own.Judges,particularly
High Court Judges, were not, and are not, liable to civil actions in respect of their judicial acts, although, of course,in
cases of corruption or criminal misconduct, they have never been immune from criminal process or impeachment. Thisistrite
law, and l need do no more than refer to the very full and interesting discussion on the subject in the CourtofAppealin
Sirros v. Moore".
The judgment in Maharaj's case (supra) was followed in the year 1980, in another appeal fromTrinidadandTobago,bythe
Privy Council in the case of Chokalinge v. Attorney-General of Trinidad and Tobago (supra) where :In1972,theappellant
was convicted, on his own plea, of contempt of court for having written an article which was held to constitutetheoffence
of "scandalising the court" : the appellant filed no appeal and served his sentence : In 1975 theappellantappliedfora
declaration under the Constitution of Trinidad and Tobago thathiscommittalwasunconstitutionalandvoidbecauseit
contravened his right under Sec. 1(a).of the Constitution not to be deprived of his liberty "except by due processoflaw",
as the offence of scandalising the Court was obsolete and was not in force when the Constitutioncameintooperationand,
therefore, he had not been imprisoned according to "due process of law". The Privy Council affirmed the order dismissingthe
appellant's application made by the Court of Appeal of Trinidad and Tobago.LordDiplock,whoonceagaindeliveredthe
judgment of the Privy Council, expanding the statement, which had been previously made by him in Maharaj's case (supra) that
"". . . . . .no human right or fundamental freedom recognised by Chapter 1 of the Constitution is contravened byajudgment
or order that is wrong and liable to be set aside on appeal for error of fact or substantive law, even wheretheerrorhas
resulted in a person's serving a sentence of imprisonment. The remedy for errors of these kinds istoappealtoahigher
Court. Where there is no higher Court of Appeal to appeal to then none can say that there. was error",
Proceeded to observe : that the "law" that is referred to in Chapter 1 of the Trinidad Constitution is thelawofTrinidad
and Tobago as interpreted and declared by the judges in the exercise of the judicial power of thestate:thefundamental
human right guaranteed by the relevant sections of the Trinidad and Tobago Constitution is not to alegalsystemwhichis
infallible but to one which is fair : that, even if the judge had made a mistake, it was only anerrorofsubstantivelaw
that the acceptance of the appellant's submission would amount to the appellantbeingentitledtoparallelremedies,an
appeal to a higher court and if the appeal be unsuccessful, a collateral attack by way of an application, evenyearslater,
for redress under the Constitution to a court of co-ordinate jurisdiction : that the acceptanceofsuchaninterpretation
would be quite irrational and subversive of the rule of law which it is a declared purpose of the Constitution to enshrine.
The majority judgment in Maharaj's case (supra) - and expanded on by the subsequent judgment in Chokalinge's case(supra)-
drew a distinction between judicial errors which were errorsofsubstantivelawandthosewhichrelatedtoprocedure
amounting to a violation of the "due process" clause. It was inregardtothedrawingofsuchadistinctionandthe
resultant consequences which such distinction was said to entail in respect of the liability of the State forsuchjudicial
acts, that Lord Hailsham differed from the majority view in Maharaj"s case (supra). Although Lord Hailsham'sapproachseems
to commend itself to me, yet, it does not make any difference for the purpose of the immediate questionunderconsideration
for, both views did unreservedly accept the position that the impugnedact,whateverbethenatureoftheerrorit
resulted in, did constitute a judicial act in respect of which the judge himself was completely immune from liability.
A Bench of nine judges of the Supreme Court of India has, in the case of Naresh S. Murajikar v. State of Maharashtra(supra)
decided, by a majority, that judicial decisions and orders of courts of competent jurisdiction donotinfringefundamental
rights set out in the Indian Constitution, and that the remedy is by way of appeal and not writ-petition.
The corresponding position under the Roman-Dutch Law is that, in the performance of his judicial functions, a judge doesnot
render himself liable to actions for damages provided the judge has acted bona fideandinthehonestdischargeofhis
duties - Matthews et al. vs. Young (17) : Voct 5.1.58: Meckerron : Law of Delict (6th edt.)sec.5,p.78-9,Penricev.
In re Mc C. (a minor) (supra) is a judgment delivered on 22.1 1.84 by the House of Lords in an appeal bythreejusticesof
the Belfast Juvenile Court, from the decision of the Court of Appeal in Northern Ireland. In that case :therespondent,a
minor 14 years of age, pleaded guilty before the three appellants who were the three justices - the residentMagistrateand
two lay justices - of the Belfast Court, to a motoring offence : the respondent was thenorderedtoattendanattendance
centre : several months later the respondent appeared before the same court charged with failingtoattendtheattendance
centre on certain dates when he had been required to do so : respondent was then ordered to be sent to aTrainingSchool:
the respondent had not been previously sent to a Training School :therespondentwasnotrepresentedincourt:the
respondent was not informed, after the making of the attendance centre order and before the makingoftheTrainingSchool
order, of his right to apply for legal aid : the respondent was detained in pursuance of such order:theTrainingSchool
order was thereafter quashed by the Divisional Court for non-compliance with Article 15 (1) Treatment of Offenders(Northern
Ireland) Order 1976 which provided that no custodial sentence should be imposed for the first time on a defendant who isnot
represented unless such lack of representation was through his own choice : the respondentthencommencedacivilaction
against the three appellants for damages, for, interalia,falseimprisonment,trespasstothepersonandbreachof
statutory duty. A preliminary issue of law, as to whether on the facts pleaded any action would lieagainsttheappellants
in view of the provisions of sec. 15 Magistrate's Court Act (Northern Ireland) of 1964 which provided thatnoactionshall
succeed against any resident magistrate or justice of the peacebyreasonofanymatterarisingintheexecutionor
purported execution of such office unless such magistrate or justice of the peacehad"actedwithoutjurisdictionorin
excess of jurisdiction", was raised. This preliminary point was upheld by the original court but was reversedbytheCourt
of Appeal in Northern Ireland. On appeal to the House of Lords, the decision of the said Court ofAppealwasaffirmedand
the appeal of the three justices was dismissed. The liability of the justices inthatcasewasfoundedentirelyupona
statutory provision - sec. 15 of the Magistrates' Court Act (Northern Ireland)of1964.Althoughthereseemedtobea
difference of opinion as to whether the liability of justices for acts done within jurisdiction but with maliceandwithout
probable cause has fallen into desuetude in Northern Ireland and in England, Lord Bridge ofWarwicks,whowrotethemain
judgment, did, with the concurrence of two of the others, Lord Elwyn-Jones and Lord Templeman, accept theprinciplethata
judge of a court of record is protected from harassment by civil suits alleging malice. Even though he realised that whathe
says would be obiter and that aspect of the case had not been argued, Lord Bridge nevertheless found the occasion,whichhe
thought was the first occasion when the House was called upon to consider the subject matter of the liability of justicesin
damages for acts done in execution or purported execution oftheiroffice,irresistibleandproceededtomakecertain
observations, inter alia, in regard to the decision of the Court of Appeal in Sirros case (supra) :that,inviewofthe
statutory provisions applicable to Northern Ireland - sec. 15 of the 1964 Act referred to earlier, - the "sweepingjudgment"
of Lord Denning in favour of abolishing the distinction between superior and inferior courts cannot be supported inrelation
to the justices : that, in regard to whether the immunity from suits, granted to the judge of the superiorcourtshouldbe
granted to judges of courts of limited jurisdiction, the distinction is so deeply root that it cannot be eradicatedbyeven
the House and could be changed only by appropriate legislation. Maharaj's case(supra),itmay,however,benoted,was
decided in February 1978, and that too by the Privy Council. The decision in this case from Northern Ireland does not, inmy
opinion, in any way detract from the principle set out earlier by me in regard to the civil liability of a judgeinrespect
of an act done by him in his judicial capacity.
Sec. 70 of the Penal Code protects a judge from criminal liability in respect of acts done by him in good faithwhenacting
On a consideration of the foregoing, I am of opinion that, under our law, a judgeisimmunefromclaimsfordamagesin
respect of anything said or done by him bona fide in his capacity as a judge in the discharge of his judicial functions.
Judges of the Courts of First Instance, whose orders always have a direct and an immediate impact upon both the parties,who
come before them, and the members of the public who follow the proceedings in court, must always be conscious of, anddeeply
appreciate the immunity referred to earlier, so conferred upon them by law inregardtoallactsdonebytheminthe
discharge of their judicial functions. It is a privilege which has been bestowed upon them not in order topandertotheir
vanity, or to enable them to make mistakes and to do wrong, or to act without a very high sense of responsibility.Itisa
protection extended to them solely for the sake of the public, and for the advancement of justice sothat,theknowledge
that they will not be troubled by any actions againstthem,would"makethemtotallyfreeinthoughtandabsolutely
independent in judgment, and also enable them to discharge their functions not onlyfreelyandwithoutfavour,butalso
without fear. The very thought that such immunity is granted to them for the sake of the public, shouldinspirethejudges
to exercise their powers and discharge their functions with the highest possible sense ofresponsibilityandwithsucha
high degree of dignity and decorum as will continue to command and retain undiminished the confidence ofthepublicinan
institution which has hitherto enjoyed such confidence in full measure.
The question which now arises is whether, even though the judge himself is so immune from any liability, the State wouldyet
be liable, in the field of fundamental rights, for any act of a judge which would operate toinfringeafundamentalright
guaranteed under the Constitution.
The provisions of the Crown (Liability in Delict) Act, No. 22 of 1969, now govern the liability of the State in delictunder
our law. Under and by virtue of the provisions of sec. 2 (5) of the said Act, theStateisnotliableinrespectof:
anything done by a judge in the discharge or purported discharge of his functions as a judge : anything donebyanyperson
in connection with the execution of judicial process.
The petitioner has, however, instituted these proceedings for relief in terms of the provisions of Articles17and126of
the Constitution. Article 1 7 empowers a person, who is entitled to any fundamental right setoutinChapterIIIofthe
Constitution, to apply as provided in Article 126 to the Supreme Court, which is vested with sole and exclusivejurisdiction
in that behalf, in respect of an infringement or imminent infringementofanysuchfundamentalrightby"executiveor
Article 4 (d) ordains that all organs of government should respect, secure and advance all the fundamental rights, whichare
declared and recognized by the Constitution, and should not abridge, restrict or deny any one of them save as set out inthe
Constitution itself. The Judiciary exercising the judicial power of the People would be one such organofgovernment.Even
so, the provisions of Articles17and126refertoinfringementsorimminentinfringementsbyonly"executiveor
administrative action". Infringements or imminent infringements by judicial action is not brought within theirpurview,and
made justiciable Relief by way of Articles 17 and 126 oftheConstitution,could,therefore,beobtainedonlyifthe
infringement, or imminent infringement, is one caused by an "executive or administrative" act. If the act, which issaidto
cause such infringement or imminent infringement, is a judicial act done by a judge acting in his judicial capacity, thenno
relief is available to the aggrieved party under and by virtue of the provisions of the said Articles 17 and 126.
Learned Counsel for the petitioner has, as set outearlier,soughttogetoverthisimpediment,insofarasthe2nd
respondent is concerned, by contending that the impugned act was not an act committed by the 2nd respondent inhiscapacity
as a judge, for the reason that : the 2nd respondent had no power or authorityasajudgetodowhathedidandwas
therefore acting outside his jurisdiction, and that the 2nd respondent was at that time acting as anofficeroftheState
exercising the coercive power of the State.
The term "executive or administrative action" has been considered by this Court on several previous occasions :Velmuruguv
Attorney-General (supra) Perera v. University Grants Commission (supra) Wijetungav.InsuranceCorporation(supra)
Wijeratne v. People's Bank (supra). These judgments have considered in depth not only thenatureandthescopeofthese
words and the type of acts which fall within the purview of the words, but also the Character andthecategoryofpersons
whose acts would constitute such "executive or administrative action" These judgments alsospellouttheprinciplesupon
which persons, who, even though they would not fall directly within the category of executive or administrative officers,as
described in the Constitution, would, yet, be considered persons, who function as organsofgovernmentand,assuch,be
agents of the State whose acts could be ascribed to the State.
The contention that the 2nd respondent was at the time in question acting in a capacity other than that of a judgeisbased
on the ground that the 2nd respondent had no authority or power to dowhathedid.Thepositiontakenupbythe2nd
respondent to justify what he did, based upon the provisions of Sec. 136 (1) (a) Code of Criminal Procedure Act,No.15of
1979, does not, in my opinion, bear close scrutiny. The information placed before the 2nd respondent was not bywayofany
material under oath. Nor was it from one who could give direct evidence. It was only a statement madefromtheBartable.
This statement was promptly challenged, also from the Bar. The2ndrespondenthimselfhaddesiredtobesatisfiedby
intimidation, which is an offence for the commission of which the 2nd respondent had the power, under and by virtueofsec.
41 of the Code of Criminal Procedure Act No. 15 of 1979, to direct the arrest of the offender. There is no question butthat
at the time the impugned act was done by him, the 2nd respondent did intend to exercise powers which he thoughtwerevested
in him, and which he considered should be exercised by him at that time. Mistaken though he mayhavebeen,yet,hisbona
fides has not been challenged. As Magistrate of the division of Attanagalla, the 2ndrespondentdidundoubtedlyhavethe
power to make, upon proper material, an order remanding the petitioner pending further investigation into an offence setout
in the Penal Code.
In the cases cited at the hearing, and referred to earlier, the acts, which were held tobringaboutliability,wereall
acts which the persons, who were held to be so liable, had, intruthandinfactdoneinthedischargeorpurported
discharge of the functions of the respective offices so held by such persons. No instance has been citedwherethealleged
wrongful act done by an officer, falling into one of the three categories of persons referred to insub-articles(a),(b),
(c) of Article 4 of the Constitution, in the discharge or purported discharge of the functions oftheofficewhichheso
held, had been held to have been, in truth and in fact, done by him in the discharge orpurporteddischargeofanoffice
falling within one of the other two categories. Nor an instance where the character - legislative, executiveorjudicial-
of the alleged wrongful act had been held to be, in truth and in fact, different from the character which it wasbeingmade
out to be. Furthermore, no good ground has been shown why, in such a situation,theallegedwrongfulactcouldnotand
should not be treated as an act done by the officer concerned not in the performance of "his official duty but in thecourse
of his personal pursuits", and as one where "the officer had taken advantage of the occasionbutnothisofficeforthe
satisfaction of a personal vagary", and "totally unconnected with any manner of performance of his official functions".
In Anderson v. Come (supra) and Sirros v. Moore (supra) referred to earlier, the actions were personalactionsfordamages
instituted against the judges for civil wrongs committed under the common law.InMaharaj"scase(supra),andalsothe
Indian case of Murajikar v. State of Maharastra (supra), the claims put forward are similartotheclaimputforwardin
these proceedings - a claim against the State for an infringement, by the judicial arm oftheState,ofaConstitutional
right guaranteed by the Constitution of the State. Maharaj's case (supra), as indicated earlier, would have to beconsidered
by our courts subject to the provisions of Articles 17 and 126 of our own Constitution.In Murajikar'scase(supra)the
Indian Supreme Court did decide that judicial acts do not amount to an infringement of the fundamental rightsguaranteedby
In Anderson's case (supra) the allegation was that the impugned acts were donemaliciouslywithoutjurisdictionandalso
with the knowledge of absence of jurisdiction. In Sirros case (supra) the judge was held nottohavehadjurisdictionto
detain S in custody and to have acted mistakenly. In Murajikar's case (supra) the impugned order was declared tobebadon
the ground of a fundamental failure of natural justice. Even so, in everyoneofthesecasestheactinquestionwas
accepted as a judicial act.
Relief under the provisions of Articles 17 and 126 of the Constitution was refused by this Court intwocasesineachof
which the alleged violations by the respondents of the Fundamental Rights under Article 13 (1) and (2)oftheConstitution
had been based upon orders which, though indefensible, had nevertheless been made by a judge -Dayanandav.Weeratunga,S
.'I. Police, et al. (19), Kumarasinghe v. A.G. et al. (20).
On a consideration of the foregoing I am of opinion that the act which the 2nd respondent is sought to be made liable foris
not an "executive or administrative" act, but is a judicial act done by the 2nd respondent in his capacity as ajudge.That
being so, the petitioner is not entitled to relief as set out in Articles 17 and 126 of the Constitution.
The liability of the 3rd respondent now remains to be considered. As set out earlier, the position of the 3rdrespondentis
that he did not do the act, which the petitioner alleges he did, and that he is not liable in any way forthedetentionof
the petitioner in the court cell of the Magistrate's Court of Attanagalla on the day in question. In view,however,ofthe
affidavit of the 2nd respondent, I shall, as already indicated, consider the case against the 3rdrespondentonthebasis
that he did, in fact, detain the 3rd respondent in his custody in theMagistrate'sCourtofAttanagallaonthedayin
question, from 10.45 a.m. to 2.45 p.m. on the orders of the 2nd respondent.
It is fairly clear that whatever the 3rd respondent did that day was not done on his own initiative but wasdonesolelyin
obedience to a. direction given by the 2nd respondent whose orders, in regard to the detention ofpersonsincourtwhilst
the Court is sitting, he, the 3rd respondent, had to carry out. In Sirros v. Moore (supra), Denning, M.R.havingabsolved
the judge, even though he had acted mistakenly, from liability as he had acted judicially, proceeded to hold thatnoaction
would lie even against the Police officers who had carried out the orders of the judge, as they had done what theydidonly
at the direction of the judge not knowing it was wrong. In Maharaj's case (supra) the executiveofficershaddetainedthe
appellant-barrister only upon the order made by the judge. Although the judge himself was held to be not liable.personally,
yet liability was affixed on the State only because of the violation by the judge of the "due process" clause. Thereasoning
of Lord Hailsham on this point in the dissenting judgment commends itself to me,morethantheapproachadoptedbythe
majority. The majority view on this point, however, will not be relevant to us, as no such "due process" clause isfoundin
our Constitution. Besides, as already set out, under our Constitution relief for violationsoffundamentalrightscanbe
obtained by way of Articles 17 and 126 thereof only in respectofviolationscommittedby"executiveoradministrative
action". Such relief is not available against judicial action - whether the judicial error be one of substantive law,orof
procedure. Even if the relief granted against violations of fundamental rights be on the basis of a liabilityoftheState
itself, yet, suchliabilitymustbefoundeduponan"executiveoradministrative"actdonewrongly,withoutany
justification for the doing of it by an agency of the State, or by an officer or agent through whom the Stateexercisesits
powers. Where, however, such act is itself protected by the law of the land, then such act cannot give rise toanyformof
liability on the part of the State. It has not been urged that, in doing what he did, the3rdrespondentwasinanyway
influenced by improper motives. In the local case of Kumarasinghe v. A. G. et. Al(supra) noreliefwasgrantedbythis
Court to the petitioner in that case against the Police officers, when he sued foraviolationoftheFundamentalRight
guaranteed by Article 13 (1) and (2) - arbitrary arrest and detention - even though the Court was of the view that therehas
been a violation of the Fundamental Right set out in Article 13 (2), because the Court held thatsuch"violationhasbeen
more the consequence of the wrongful exercise of judicial discretion as a result of a misleading report". The position ofan
officer of the State, who, in the course of carrying out an order made by a judge in the exercise of his judicialfunctions,
violates the Fundamental Right of a person, is that he would be free from liability, if, in doing so, he hasactedingood
faith, not knowing that the said order is invalid.
The complaints of "exposure to an infliction of degradation - Article 11", and "deprivation of freedom of movement -Article
14 (1) (h)", both arise from the aforesaid order for detention. Where such order of detention is held not to renderthe2nd
respondent liable in respect of the claim of arbitrary arrest and detention, such immunity would operate alsoinregardto
the claims of violation of Articles 11 and 14 (1) (h). The petitioner had been detained within the court building itself,in
the cell where all persons who are detained upon the orders of thepresidingMagistrateareordinarilykeptduringthe
period the Court is in session. There is no express evidence in regard to the condition of the cell whichwasinexistence
in the Magistrate's Court of Attanagalla on the day in question. It may have been similar to such cells foundintheother
Magistrates' Court in the island. It may well be that they cannot be described as comfortable places even foraveryshort
stay, and they leave much to be desired. However uncongenial, uncomfortable, undesirableandcrampedsuchstaymayhave
been, yet, it was the direct outcome of the aforesaid order for detention. Thus, evenifanyotherrightswereinfact
affected, that would be the incidental and indirect outcome of the said order of detention. If such main order does notgive
rise to any relief, then complaints of such incidental and indirect violations will also not give rise to any relief-vide
Murajikar's case (supra) - paras, 43, 75, 138.
In this view of the matter, I am of opinion that the petitioner's claim against the 3rd respondent too must fail.
The petitioner's application against all three respondents is accordingly dismissed, but without costs.