Legal Services and Laws of Sri Lanka


SLR-1996 Vol.1-P70

SLR - 1996 Vol.1, Page No - 70

JEYARAJ FERNANDOPULLE

v.

PREMACHANDRA DE SILVA AND OTHERS
SUPREME COURT.

G.P.S. DE SILVA, C. J.,

AMERASINGHE, J.,

WADUGODAPITIYA, J.,

RAMANATHAN, J. AND

ANANDACOOMARASWAMY, J.

S. C. APPLICATION NOS. 66 & 67/95.

JUNE 10, 1996.
Revision, Review or Re consideration of the judgment of the Supreme Court - PracticeoftheCourt-Cursescuriaeestlex
curiae - Judicial comity -Powers of the Supreme Court - Powers of the Chief Justice - Constitution of Benches -Finalityof
judgments and orders of the Supreme Court -Constitution, Article 132 - Inherent PowersoftheCourt-Theperincuriam
principle - Relevance of questions of general and public importance.

The violations of fundamental rights found tohavebeencommittedbythe10th,11th,13thand14threspondentsin
Applications 66/95 and 67/95 were held to have been instigated by the1stRespondent-petitionerbyamajorityofthree
judges of the Supreme Court. The disagreement between the majority and minority of the Bench was based on -

(i) the admissibility of a speech in Parliament made by the1stRespondent-petitionerandreportedinHansardforthe
purpose of contradicting his affidavit filed in Court having regardtotheprivilegesenjoyedbyhimasamemberof
Parliament

(ii) the evidentiary value to be attached to the matters referred to in the speech, having regard to the context in whichit
was made.

The 1st Respondent-petitioner prayed that the Court be pleased to revise and/or review and/or furtherconsidertheuseof
Hansard by referring the same for consideration by a fuller Bench.
The Acting Chief Justice nominated a Bench of five judges to hear the petitionofthe1stRespondent-petitioner,himself
being one. However of the nominated Bench, the Acting Chief Justice declined to serve ontheBenchandanothernominated
Judge relinquished his office to take over the office of Attorney-General. Thereafter the present Benchwasconstitutedto
hear the case.

Held:
1. Usually, in the case of a petition, motion, application or letter addressed either to the Chief Justice ortotheChief
Justice and the other Honourable Judges of the Supreme Court, the Registrar submits it to the Chief Justicefordirections
if it pertains to an appeal, proceeding or matter pending before or decided by aBenchoftheCourt,theChiefJustice
refers it to the Judges who heardthecasetowhichthepetition,motion,applicationorletterrelates.Ifupon
consideration in Chambers of the documents and affidavits submitted, an oral hearing is, in the opinion oftheJudges,not
warranted, the Judges would refuse to entertain the matter. The Judges concerned may decide to hear the party insupportof
his petition, motion or application. If they so decide after the hearing, they may reject it, and notice will notbeissued
on the other party and the matter will be at an end. If the Judges so decide, the Judges may requesttheChiefJusticeto
constitute a Bench of five or more Judges to hear the matteror the Judges to whom thematterhadbeenreferredinthe
first place, may hear the matter and either grant the relief prayed for or refuse to grant relief. Where by an oversightthe
matter is listed before another Bench, that Bench will direct that the matter belistedbeforeaBenchcomposedofthe
Judges who made the order. Cursus curiae est lex curiae. The practice of the Court is the law of the Court. It isinaccord
with the conventions of judicial comity.

2. It is an inveterate practice of the Court which the Court has regarded as havinghardenedintoarulethatthesame
Judges who participated in the formal hearing should constitute the new Bench or should also be included, as far aspossible
in the new Bench where a re-examination is decided. Not only may the Judges who were supposed to be in error bethepersons
to whom the matter should be addressed, they ought to be the persons to whom the matter should be referred.Apartfromthe
need to observe the conventions of judicial comity, there is the further considerationthat,unlessthepracticeofthe
Court in this regard is adhered to, the Court's position as the final court will be placed in jeopardy.

3 (i) When the Supreme Court has decided a matter, the matter is at an end and there is no occasion for otherjudgestobe
called upon to review or revise a matter. The Supreme Court is a creature of statute and its powers are statutory. TheCourt
has no statutory jurisdiction conferred by the Constitution or by anyotherlawtorehear,review,alterorvaryits
decision. Decisions of the Supreme Court are final.

(ii) As a general rule, no Court has power to rehear, review, alter or vary any judgment or order made byitafterithas
been entered.
(iii) A Court has no power to amend or set aside its judgment or order where, it has come to light or if it transpiresthat
the judgment or order has been obtained by fraud or false evidence. In such cases relief must be sought by way ofappealor
where appropriate, by separate action, to set aside the judgment or order. The object of the rule is to bringlitigationto
finality.

4. However all Courts have inherent power in certain circumstances to revise an order made by them such as -

(i) An order which has not attained finality according to the law orpracticeobtaininginaCourtcanberevokedor
recalled by the Judge or Judges who made the order, acting with discretion exercised judicially and not capriciously.

(ii) When a person invokes the exercise of inherent powers of the Court, two questions must be asked by the Court

(a) Is it a case which comes within the scope of the inherent powers of the Court?

(b) Is it one in which those powers should be exercised?

(iii) A clerical mistake in a judgment or order or some error arising in a judgment ororderfromanaccidentalslipor
omission may be corrected.

(iv) A Court has power to vary its own orders in such a way-as to carry outitsownmeaningandwherethelanguageis
doubtful, to make it plain or to amend it where a party has been wrongly named or described but not if itwouldchangethe
substance of the judgment.
(v) A judgment against a dead party or non-existent Company or in certain circumstances a judgment entered in defaultorof
consent will be set aside.

(vi) The attainment of justice is a guiding factor.

(vii) An order made on wrong facts given to the prejudice of a party will be set aside bywayofremedyingtheinjustice
caused.

5. Public or general importance of a matter or dissent by a minority of the Judges constituting the Bench does notgivethe
Chief Justice the authority to constitute an appellate division of the Supreme Court to review and revise its owndecisions.
Apart from exceptional instances in which it has been statutorily vested withjurisdictiontoexpressitsopinions,the
business of the Court is adjudication. A "question" or "issue" of general or public importance in the abstract cannot bethe
subject of a judgment of the Supreme Court - it is not a mattersusceptibletoadjudication.Ajudgmentisajudicial
determination of a cause agitated between real partiesupon which a real interest has been settled.

6. When any division of the Supreme Court constituted in terms of the Constitution sits together, it does so astheSupreme
Court. It is one Court though it usually sits in several divisions. Eachdivisionhasco-ordinatejurisdiction.Whatis
conveniently, but inaccurately called a "fuller Bench" has no greater powers or jurisdiction than any division oftheCourt
though a decision of such a court carries greater weight. The judgment oftheSupremeCourtshall,whenitisnotan
unanimous decision, be the decision of the majority regardless of the factthatitmay,intheopinionofanyperson
whomsoever, be wrong. Nor is it open to anyone to devalue a decision of the Court on the assumption that one ormorejudges
"merely agreed" with the opinion of another judge.

7. Article 132 (3) does not confer any right of appeal, revision or review. It has alwaysbeentakenforgrantedthata
matter is referred to a Bench of five or more judges by the Chief Justice, whether of his own motion, or attherequestof
two or more judges hearing the matter, or on the application of a party, because the question is one ofgeneralandpublic
importance. Article 132 provides for the manner in which the jurisdiction of the Court may be ordinarily exercised.Itdoes
not confer any jurisdiction on the Court nor does it empower the Chief Justice to referanymatterofpublicorgeneral
importance to a Bench of five or more judges. It empowers him to constitute a Benchoffiveormorejudgestohearan
appeal, proceeding or matter which the Court has jurisdiction toentertainanddecideordetermine.TheCourthasno
statutory jurisdiction to re-hear, reconsider, revise, review, vary or set aside itsownorders.Consequently,theChief
Justice cannot refer a matter to a Bench of five or more judges for the purpose of revising, reviewing,varyingorsetting
aside a decision of the court. The fact that in the opinion of the ChiefJusticethequestioninvolvedisamatterof
general or public importance makes no difference.

8. The Court has inherent powers to correct decisions made per incuriam. A decision will be regarded asgivenperincuriam
if it was in ignorance of some inconsistent statute or binding decision - wherefore some part of the decisionorsomestep
in the reasoning on which it is based is found on that account to be demonstrably wrong.

9. The fact that the question involved is a matter of general or public importance has never been regarded asagroundfor
the exercise of the Courts' inherent powers.

Per Amerasinghe, J:
"The inherent powers of a Court are adjuncts to existing jurisdiction to remedy injustice. They cannot be made the source of
new jurisdictions to revise a judgement rendered by Court".

Cases referred to

1.Gamage William Singho and Others S.C. LA No. 60/96.

2.All Ceylon Commercial and Industrial Workers Union v. The Ceylon Petroleum Corporation and Others [1995] 2 Sri L.R. 295,
296, 297.
3. Re Ganeshanathan's Application - S. C. Application No. 20/83S.C. Minutes of 21.07.1983.

4. Hettiarachchi v. Seneviratne and Others (No. 2) - [1994] 3 Sri L. R. 293, 296, 297 - 299, 304 - 305.

5. Senerath v. Chandraratne, Commissioner of Excise and Others [1995] 1 Sri L. R. 209, 212, 216.
6. Suren Wickremasinghe and Others v. Cornel Perera S.C. (SLA) No. 49/96 S. C. Minutes of 21.3.1996.

7. Wayland v. Transvaal Government 1904 TS 758.

8. Moosajees Ltd., v. Fernando and Others (1966) 68 N.L.R. 414.

9. Liyanage and Others v. The Queen (1965) 68 N.L.R. 265, 420.

10. Ganeshanatham v. Vivienne Goonewardene [1984] 1 Sri L. R. 319, 329, 340, 355, 377, 378.

11. Vivienne Goonewardene v. Hector Perera and Others [1983] 1 Sri L.R. 305.

12. Tucker v. New Brunswick Trading Company of London 1890 Ch. D. 249.

13. Palitha v. O.I.C. Police Station, Polonnaruwa and Others [1993] 1 Sri L. R. 161.

14. Billimoria v. Minister of Lands [1978-80] 1 Sri L.R. 10, 14, 15.

15. Young v. Bristol Aeroplane Co., [1944] 2 All E. R. 293, 298, 300.

16. Marambe Kumarihamy v. Perera [1919] VI C.W.R. 325.

17. Thynne Marchioness of Bath v. Thynne (Marquess of Bath) [1955] 3 All E. R. 129, 145, 146.

18. Mapalathan v. Elayavan (1939) 41 N.L.R. 115.

19. Elo Singho v. Joseph (1948) 49 N.L.R. 312.

20. The London Street Tramways Company Limited v. The London County Council [1898] AC 375, 380.

21. Duchess of Kingston's Case 20 St. Tr. 355, 478, 479.
22. Bandon v. Becher 3 CI. & F 479, 510.

23. Husaam Haj Yihyeh v. The State of Israel: The Jerusalem Post Law Reports reported in Asher Felix Landau 1993 p. 234.

24. Wijesinghe et al v. Uluwita (1933) 34 N.L.R. 362, 364.

25. Easwaralingam v. Sivagnanasunderam (1962) 64 N.L.R. 396, 398.

26. Meier v. Meier (1948) p. 89, 95.

27. Mohamed v. Annamalai Chettiar (1932) 12 CL Rec. 228, 229.

28. Padma Fernando v. T. S. Fernando (1956) 58 N.L.R. 262.

29. Lawrie v. Lees (1881) 7 App. Cas. 19, 34.

30. Re Swire (1895) 30 CH. D. 239, 246.

31. Paul E. de Costa & Sons v. S. Gunaratne (1967) 71 N.L.R. 214, 215.

32. Hatton v. Harris (1892) A.C. 547, 560.

33. Raju v. Jacob (1968) 73 N.L.R. 517.

34. Kariapperuma and Another v. D. J. Kotelawala (1971) 77 N.L.R. 193.

35. Valliammai Atchi v. O. L. M. Abdul Majeed 45 N.L.R. 169.

36. Jonga v. Nanduwa 45 N.L.R. 128.

37. Menchinahamy v. Muniweera (1950) 52 N.L.R. 409, 414 - 415.

38. Caldera v. Santiagopillai (1920) 22 N.L.R. 155.

39. Juan Perera v. Stephen Fernando (1902) 2 Brown Rep. 5.

40. Thambiraja v. Sinnamma (1935) 36 N.L.R. 442.

41. Publis v. Eugena Hamy (1948) 50 N.L.R. 346.

42. Sirivasa Thero v. Sudassi Thero (1960) 63 N.L.R. 31,33,34.

43. Rodger v. Comptoir D' Escompte de Paris (1871) LR 3 1/4C 465.

44. Kadiramanthamby and Another v. Lebbethamby Hadjiar (1971) 75 N.L.R. 228, 231.

45. Paulusz v. Perera [1933] 34 NLR 433

46. Loku Banda v. Assen (1897) 2 N.L.R. 31.

47. Karuppannan v. Commissioner for Registration of Indian and Pakistani Residents (1953) 54 N.L.R. 481.

48. Velupillai v. The Chairman Urban District Council, Jaffna (1936) 16 CL Rec. 75, 76.

49. The Police Officer of Mawalla v. Galapatta (1915) 1CWR 197.

50. P. C. Batticaloa 8306, In Revision (1921) 23 N.L.R. 475.

51. The King v. Baron Silva et al (1926) 4 Times of Ceylon Reports 3.

52. Ranmenikhamy and Another v. Tissera and Others (1962) 65 N.L.R. 214, 215.

53. Farrell v. Alexander (1976) 1 All ER 129, 145.

54. Huddersfield Police Authority v. Watson (1947) 2 All ER 193, 196.

55. Alasuppillai v. Yavetpillai (1948) 39 CLW 107.

56. Morelle Ltd., v. Wakeling (1955) 1 All ER 708,718.

57. Craig v. Kanssen (1943) 1 All ER 108.

58. Chief Kofi Forfie v. Barima Kwabena Sheifah Kenyaschene (1958) 1 All ER 289 (PC).
59. Woolfenden v. Woolenden (1947) 2 All ER 653.

60. Nisha Sudarshi Ganeshi Kumarasena v. Sub-Inspector Sriyantha and Others SC Application 257/93 - SC Minutes 23.5.1994.

61. Re a Solicitor [1944] 2 All ER 432, 434.

62. Rost v. Edwards and Others (1990) 2 All ER 641, 644, 645.

63. A. G. of Ceylon v. De Livera (1962) 3 All ER 1066, 1069, (1963)AC 103, 120.

64. Dissanayake v. Kaleel [1993] 2 Sri LR 135.

65. Jayatillake v. Kaleel [1994] 1 Sri LR 319.

66. London Street & Tramways Co., v. London Council (1898) AC 375, 380, 381.

67. Jones v. National Coal Board (1957) 2 QB 55, 64.

68. Broome v. Cassell & Co., Ltd., & Another(1971) 2 All ER 187, 198 - 200.

69. Rookes v. Barnard [1964] 1 All ER 367.

70. Brown v. Deam and Another (1910) AC 373, 375.
Petition for revision and/or review and/or further consideration by a fuller Bench of the use of Hansard in Court
Proceedings.

R. K. W. Goonesekera with J.C. Weliamuna for the 1st Respondent-Petitioner in S. C. Application No. 66/95.

Faiz Musthapa, P.C. with Dr. J. Wickramaratne, Mahanama de Silva and S. M. Senaratne for the 1st Respondent - Petitioner in
S.C. Application No. 67/ 95.

T. Marapana P.C. with D. Weerasuriya, N. Ladduwahetty, Jayantha Fernando, A Premaratne and S. Cooray for the 1st-29th
Petitioners-Respondents in S. C. Application No. 67/95.

Upawansa Yapa P. C., Solicitor-General with Chanaka de Silva, S. C. for the Attorney-General.

July 09, 1996.
AMERASINGHE,J.

This is a matter relating to a petition by Mr. Jeyaraj Fernandopulle, M.P., dated the 19th of December,1995,addressedto
his Lordship the Chief Justice and the other Honourable Judges of the Supreme Court.

Two applications numbered 66/95 and 67/95 had been filed in this Court under Article 126 of theConstitutionallegingthat
certain fundamental rights of the petitioners in those applications had been violatedbytherespondentscitedinthose
applications. Mr. Jeyaraj Fernandopulle, M.P., was the 1st Respondent in both those applications. Since he is thepetitioner
in the matter before us, I shall hereafter, unless the context otherwise requires,refertohimasthe1stRespondent-
petitioner.

Argument on the two applications was heard on the 13th and 27th of September by a BenchofthreeJudges.TheirLordships
took time for consideration. Judgment was delivered on the 30th of November 1995. Albeit inseparatejudgments,thethree
Judges agreed that the petitioners were entitled to a declaration that their fundamental rights under Articles 12(1), 12(2)
and 14(1) (c) read with 14(1) (g) had been violated by the 10th, 11th, 13th and 14th respondentsand to the reliefsgranted
by the Court.

However, although two of the Judges were of the view that the violations had resulted from the firstRespondent-Petitioner's
instigation and that he should therefore pay a sum of Rs. 50,000 as costsRs. 25,000 tothepetitioner-society,the63rd
petitioner, in S.C. Application No. 66/95andRs.25,000tothepetitioner-society,the30thPetitioner,inS.C.
Application No. 67/95, the third Judge was of the view that the first Respondent-Petitionerhadnotbeenprovedtohave
acted in violation of any of the fundamental rights of the petitioners, and consequently that he was not liabletopayany
sum by way of costs.

The disagreement between the majority and minority was based on -
* the admissibility of a speech in Parliament made by the 1st Respondent-PetitionerandreportedinHansardforthe
purpose of contradicting the affidavit of the 1st Respondent-Petitioner, having regard to the privileges enjoyed by himas
a Member of Parliament
* the evidentiary value to be attached to the matters referred to in the speech, having regard to the context inwhichit
was made.
On the 19th of December, 1995, the 1st Respondent-Petitioner submitted a petition supported by an affidavittothisCourt.
After setting out the views expressed by the Judges on these matters, he stated in paragraph 16 ofhispetitionthat"the
question of the use of Hansard to assess the veracity of the affidavit of the 1st Respondent(petitioner)isamatterof
public or general importance and having regard to the expression of dissent by (one of the Judges), the issue meritsfurther
consideration and/or review and/or revision by a fuller Bench of Your Lordships' Court".
In his petition, the 1st Respondent-Petitioner prayed that this Court be pleased,

"(a) to revise and/or review and/or further consider the aforesaid issue of the use of Hansard, byreferringthesamefor
consideration by a fuller Bench, and
(b) to grant such other and further relief as Your Lordships' Court shall seem meet."
When a petition addressed to his Lordship the Chief Justice andtheotherJudgesoftheSupremeCourtrelatingtoa
concluded matter is received, the Registrar of the Court submits it with the record of the case tohisLordshiptheChief
Justice for directions. In the matter before us, since his Lordship the Chief Justice was out of the country,theRegistrar
submitted the documents to his Lordship the Acting Chief Justice on the 19th of December, 1995.Onthe22ndofDecember,
1995, his Lordship the Acting Chief Justice stated as follows:

The 1st Respondent-(Petitioner) in SC (FR) Applications Nos. 66/ 95 and 67/95 has made application in termsofArticle132
(3) of the Constitution by way of petition and affidavit, moving that a fuller bench of the Supreme Court beconstitutedto
consider a question which he says is a matter of general and public importance that arose in the course of hearings beforea
Bench of 3 Judges in the aforesaid Fundamental Rights applicationsto wit: that the use of the contents of Hansard - P 16-
containing speeches, debates and proceedings in Parliament by the majority ofJudgesofthesaidCourt,toassessthe
veracity or reliability or acceptability of affidavits filed byhimas1stRespondenttothoseapplications,andthe
decision of the said majority as to the legal relevance of speeches, debates and proceedings in Parliamentascontainedin
Hansard amounts to a violation of the freedom of speech, debates and proceedings in Parliament intermsoftheParliament
(Powers and Privileges) Act recognized and kept alive by Article 67 of the Constitution.
A perusal of the judgments of the Court that heard the said applications shows a strong division of opinion on thisquestion
of the use of speeches, debates and proceedings in Parliament as reflected in Hansard. The majority of judges ofthatCourt
used extracts from Hansard to discredit the affidavits of the 1st Respondent-Petitioner filed in thesaidapplicationsand
declare the contents of the affidavits as unreliable. The minority judgment sharply disapproves of the use to whichextracts
from Hansard have been put by the said majority of judges and has concluded that theprivilegeoffreedomofspeechand
debate associated with proceedings in Parliament -quote - "being the cornerstone of a democratic Parliamentary system" -has
been gravely prejudiced and has ruled out its use to impeach the creditworthiness of the 1st Respondent-Petitioner(sic)in
his responses by way of affidavit to the complaint of infringement of the Petitioners-Respondents, fundamental rights.

I am of opinion that the question whether speeches, debates and proceedings in Parliament and reflectedinHansardcanbe
used as being legally relevant evidence to compare and contrast andconfirmorrejectordiscreditasinconsistentor
unreliable affidavits of members of Parliament or of other persons filed inCourtproceedingsorbeforeotherTribunals
referring to events and matters outside Parliament is aquestionofgeneralandpublicimportance,allprivilegesof
Parliament being part of the general and public law of the land which ought to be considered and decided byafullerBench
comprising five (5) judges of the Supreme Court.

I am further of the opinion that the nomination of any of the Honourable Judges who comprised the Court of three(3)Judges
to a fuller Bench is not appropriate in the circumstances. One of the Hon. Judges that comprised the majority dealt withthe
point raised in this petition only as a response to the view of the other who expressed the minority dissentingview,while
the third Hon. Judge merely agreed with the view that now forms the majority viewpoint that has givenrisetothepresent
petition. The Hon. Judge who expressed the minorityviewpointthereuponrespondedtothemajorityviewpointinhis
judgment.I accordingly nominate the following Hon. Judges to constitute a Bench of Five (5)JudgesoftheSupremeCourt,
namely,

Hon. G. P. S. de Silva

Hon. G. R. T. D. Bandaranayake

Hon. P. Ramanathan

Hon. S. W. B. Wadugodapitiya

Hon. S. N. Silva
to hear, consider and determine the question whether speeches, debates and proceedings in Parliament as reflected inHansard
can be used as being legally relevant evidence to compare and contrast and confirm or reject or discredit as inconsistentor
unreliable, affidavits of members of Parliament or of other persons filed in CourtproceedingsorbeforeotherTribunals
referring to events or matters outside Parliament, or that they cannot be so used for other purposes,fortodosocould
strike at or inhibit the freedom of speech, debate and proceedings in Parliamenttherebyconstitutingabreachofthe
privileges of Parliament as recognized by lawand to make consequential orders thereto. Consequently the followingfindings
and orders made and reliefs awarded in each case and contained in the judgment of Hon. Wijetunge, J. at pp. 36 and37noted
as (i) and (iv) thereof with which Hon. Fernando, J. has agreed, consequent to the use ofHansard,wouldlieinsuspense
until the Fuller Bench of Five (5) judges has come to its decision, as those orders and reliefs affectthe1stRespondent-
Petitioner in each caseto wit:

(a) the finding that the fundamental rights of each individual petitioner-Respondent in each case, enshrined inArticles12
(1),12 (2), 14 (1) (g) read with 14 (1) (c) of the Constitution have been infringed by the 1st Respondent-Petitioner

(b) the finding that the said violations resulted from the 1st Respondent-Petitioner's instigationand the orderforcosts
in the stated sum of money to be paid in each case by the 1st RespondentPetitioner.

Registrar to notify the parties in each case of the nomination of a fuller bench of five Judges of the Supreme Court to
consider and decide the above question of general and public importance marked X and Y and to inform them of the date of
hearing.

Registrar to inform the Judges of the Fuller Bench of said nomination.
Hon. G. R. T. D. Bandaranayake

(Acting) Chief Justice

22nd December 1995

PS.
REGISTRAR
Copies of documents placed before Bench of Three (3) Judges and copies of the petition and affidavit of the present 1st
Respondent Petitioner to be made available to the judges of the Fuller Bench.
TDB

22/12/95
In response to the directions of the Acting Chief Justice, the Registrar of the Supreme Court on the 29th ofFebruary1996,
notified the parties in S. C. Applications Nos. 66/95 and 67/95 as follows:

WHEREAS the 1st Respondent petitioner abovenamed has filed an application that this matter be referred to a fullerBenchto
revise and/or review and/or further consider, the issue of the use of Hansard, take notice that this matter hasbeenlisted
for hearing on the 10th, 11th & 12th of June 1996 before a Divisional Bench of the Supreme Court to consider anddecidethe
following questions:

(i) Whether speeches, debates and proceedings in Parliament and reflected in Hansard can be used asbeinglegallyrelevant
evidence to compare and contrast and confirm or reject or discredit as inconsistent or unreliable, affidavits ofMembersof
Parliament or of other persons filed in Court proceedings or before other Tribunals referring to events andmattersoutside
Parliament is a question of general and public importance, all privileges of Parliament being part of the general andpublic
law of the land which ought to be considered and decided by a Fuller Bench comprising 5 (five) Judges of the Supreme Court.

(ii) Whether speeches, debates and proceedings in Parliament as reflected in Hansard can be used asbeinglegallyrelevant
evidence to compare and contrast and confirm or reject or discredit as inconsistent or unreliable, affidavits ofMembersof
Parliament or of other persons filed in Court proceedings or before other Tribunals referring to eventsormattersoutside
Parliament, or that they cannot be so used for the above purposes, for to do so would strike at orinhibitthefreedomof
speech, debate and proceedings in Parliament, thereby constituting a breach of the privileges of Parliament as recognizedby
Law.

And to make consequential orders thereto.

Copies of petition and affidavit filed by the 1st Respondent-petitioner are annexed.
Registrar of the Supreme Court
The Bench nominated by the Acting Chief Justice could not be constituted, for although his Lordship the Hon. Mr.JusticeG.
R. T. D. Bandaranayake, when he was Acting Chief Justice, had nominated himself as one of the Bench of fiveJudgestohear
the matter, his Lordship had later indicated to the Honourable Chief Justice that he didnotwishtoparticipateinthe
hearing and determination of the matter. The Hon. Mr. Justice S. N.SilvawhohadbeennominatedbytheActingChief
Justice, had, since his nomination, relinquished office to assume duties as Attorney-General. The partieshad,aswehave
seen, been noticed to appear. The matter of the petition was, therefore, listed to be considered by aBenchconstitutedby
His Lordship the Chief Justice.

CURSUS CURIAE
Usually, in the case of a petition, motion, application or letter addressed either to theChiefJusticeortotheChief
Justice and the other Honourable Judges of the Supreme Court, the Registrar submits it to the Chief Justicefordirections
if it pertains to an appeal, proceeding or matter pending before or decided by aBenchoftheCourt,theChiefJustice
refers it to the Judges who heardthecasetowhichthepetition,motion,applicationorletterrelates.Ifupon
consideration in Chambers of the documents and affidavits submitted, an oral hearing is, in the opinion oftheJudges,not
warranted, the Judges would refuse to entertain the matter.E.g.seeGamageWilliamSinghoandOthers.(1)TheJudges
concerned may decide to hear the party in support of his petition, motionorapplication.Iftheysodecideafterthe
hearing, they may reject it, and notice will not be issued on the other party and the matter will be at anend:AllCeylon
Commercial and Industrial Workers Union v. The Ceylon Petroleum Corporation and Others,(2)IftheJudgessodecide,the
parties may be noticed and after hearing them, the Judges may request the Chief Justice to constituteaBenchoffiveor
more Judges to hear the matter: Re Ganeshanatham's Application, (3) or the Judges to whom the matter had been referred toin
the first place, may hear the matter and either grant the relief prayed for (e.g. see Hettiarachchiv.Seneviratne,(4) or
refuse to grant relief: (e.g. see Senerath v. Chandraratne, Commissioner of Excise and Others,(5)SurenWickramasingheand
Others v. Cornel Perera.(6) Where by an oversight the matter is listed before another Bench, that Bench will direct thatthe
matter be listed before a bench composed of the Judges who made the order: Senerath v. Chandraratne.(5)

Cursus curiae est lex curiae. The practice of the court is thelawoftheCourt.Wessels,JinWaylandv.Transvaal
Government,(7) held that it is no argument to say that there was no actual contested case in which thisprocedurehasbeen
laid downfor a course of procedure may be adopted and hold good even though therehasbeennodecisiononthepoint.
However, in Sri Lanka the practice of the Court has been recognized in judgments of the Court.

The practice of the Court in these matters is in accordance with the conventions of judicial comity.InMoosajeesLtd.v.
Fernando and Others,(8) the applications for writs of certiorari had been referred under section 51 of theCourtsOrdinance
for hearing before five Judges in regard mainly to the question whether the tribunal concernedineachapplicationwasa
"judicial officer". After expressing their views on the question, and assuming that the tribunals hadjurisdiction,itwas
ordered that the applications be set down for further hearing before a Bench of two Judges upon other matters raisedbythe
respective petitioners. As the two Judges before whom they were listed for further hearing were unable to agree in regardto
the order they should make, the applications came to be listed before another Court of five Judges. After theearlierCourt
of five Judges had delivered its judgment, the Privy Council decided Liyanage and Others v. The Queen, (9). In thelightof
that decision, which recognized a separation of powers as between the Legislature,theExecutiveandtheJudiciary,the
tribunals concerned had no jurisdiction to entertain the references. It was held by the majority (4-1) that, inasmuch asthe
earlier Court of five Judges had not entered a decree finally disposing of the applications, it was open to thelaterCourt
of five Judges to re-examine, in the light of thedecisionofthePrivyCouncil,thesupremeandultimateappellate
authority at that time, the question whether the tribunals had jurisdiction. H. N. G. Fernando, SPJ at p.420 said:

In the interests of judicial comity, it would certainly have been preferable if the same five Judges who participated inthe
former hearings of these applications had also constituted the present Bench. But even if my brotherSriSkandaRajahhad
been a member of this Bench, his presence would have made no difference to the ultimatedecision.Evenontheassumption
that he would have adhered to his former opinion, the majority decision of the Bench (The Chief Justice, my brotherFernando
and myself) would be that the tribunals in these cases had no jurisdiction and that thereliefsoughtbythepetitioners
should be granted. That being so, the absence from this BenchofonememberoftheformerBenchbecomesatechnical
consideration only, and I doubt whether our revocation of the former orders will constituteaprecedentinconsistentwith
the conventions of judicial comity. The circumstances of the revocation are probably unique, in that the errorofaformer
judgment has been manifested in a decision of the Privy Council delivered before the former judgment had become effectiveby
the passing of a decree determining the rights and obligations of the parties.

Ganeshanatham v. Vivienne Goonewardene,(10) was no exception. Ratwatte, Colin Thorne andSoza,JJhadheardanddecided
Vivienne Goonewardene v. Hector Perera and Others,(11),inwhichithadbeenheldthatV.Ganeshanathamhadbeen
responsible for the arrest of the petitioner in violation of her fundamental rights. The decision of theCourtinVivienne
Goonewardene v. Hector Perera was based upon the affidavit of Ganeshanatham filedbythe2ndRespondent,theInspector-
General of Police, in which Ganeshanatham hadstatedthathehadarrestedMrs.Goonewardene.Ganeshanathamfiledan
application complaining that the finding against him was made per incuriam. Ganeshanatham's application was listedbeforea
Bench- comprising the same Judges who had heard Vivienne Goonewardene's case. After hearing counsel,onthe21stofJuly
1983, the Court decided as follows:
On a consideration of the papers filed before us and the arguments adduced by counsel we are of the view thatthefollowing
questions arise for determination preliminarily, namely:

1. Has the Supreme Court jurisdiction to review or revise in any manner its own judgment in S.C. Application No. 20/83?

2. If so,

(a) on what grounds or under what circumstances can such jurisdiction be exercised?

(b) what procedure should be followed to obtain relief?
In view of the importance of these questions, we think that a fuller Bench of the Supreme Court than at presentconstituted,
should finally decide them. Acting under Article 132 (3) (ii) of the Constitution, wethereforerequestHisLordshipthe
Chief Justice to put these questions up for early decision before a fuller Bench oftheSupremeCourtbyvirtueofthe
powers vested in him by Article 132 (3) of the Constitution.
The Chief Justice acceded to the request of the three Judges. The Hon. Mr. Justice Colin Thome,whohadbeenoneofthe
Judges who had decided the earlier matter was one of the Judges of the Bench of seven Judges nominated by the ChiefJustice.
With great respect, I find it difficult to understand why his Lordship the Acting Chief Justiceactedindisregardofan
inveterate practice of the Court that this Court has regarded as having hardenedintoarule.Irespectfullyregretmy
inability to accept his Lordship's explanation in his directions of 22nd December 1995, namely, that theBenchwasdivided
in its opinion, for excluding the Honourable Judges who heard the case from a consideration ofthepetitionbeforeus.I
respectfully find myself in disagreement with the view expressed by his LordshiptheActingChiefJusticethathefelt
constrained to refer the matter to a "fuller Bench" because "One of the Honourable Judges that comprised themajoritydealt
with the point raised in this petition only as a response to the view of the otherwhoexpressedtheminoritydissenting
view, while the third Hon. Judge merely agreed with the view that now forms the majority viewpoint thathasgivenriseto
the present petition. The Hon. Judge who expressed the minority viewpoint thereupon responded to themajorityviewpointin
his judgment."

The emphasis is mine.
Not only may the Judges who were supposed to be in error be the persons to whom the matter should beaddressed,theyought
to be the persons to whom the matter should be referred to. (Cf. Tucker v. New BrunswickTradingCompanyofLondon(12))
Apart from the need to observe the conventions of judicial comity, thereisthefurtherconsiderationthat,unlessthe
practice of the Court in this regard is adhered to, the Court's position as the final Court will be placed in jeopardy.

When the Supreme Court has decided a matter, the matter is at an end, and there is no occasion for other Judges to becalled
upon to review or revise a matter. However, as we shall see, the Court has inherent power in certain circumstances torevise
an order made by it. On the basis that one division of the Court may do what another may do, it would be competentforone,
division, in the exercise of that power, to set aside an order of another division of the Court. This must be so,forthere
may be circumstances in which it may not be possible for the review to be undertaken by the same Bench: For instance, oneor
more of the Judges who decided the first matter may not be available, due to absenceabroad,orretirementorsomesuch
reason. E.g. see Palitha O.I.C. Police Station Polonnaruwa and Others,(13) Justice cannot be denied because oneormoreof
the Judges are not available. However, where they are available, such matters should beconsideredbythesameBenchof
Judges. In Billimoria v. Minister of Lands,(14) Samarakoon, CJ said:

The Attorney-General contended that it was competent for one Court to set aside an order made per incuriam byanotherBench
of the same Court. Generally this would be so. But it has been the practice of our Courts for partiesortheirCounselto
bring the error to the notice of the Judge or Judges who made the order so that he or theycancorrecttheorder.Indeed
this has always been a matter of courtesy between Bench and Bar and I regret to note thatithasnotbeendoneinthis
instance nor has the second Court thought it fit to direct Counsel to make the application to the Court thatmadethestay
order.

We have advanced beyond graceful politeness and considerateness in intercourseasajustificationofthepractice:The
Supreme Court in Suren Wickramasinghe & Others v. Cornel Perera &Others,(5)heldthat"law,practiceandtradition"
required that matters pertaining to a decided case should be referred to the Court composed of the Judges who hadheardthe
case. The practice of the Court in this regard is the law of the Court -lex curiae- and it must be giveneffecttointhe
same way in which a rule of Court must be given effect to. (Cf. the observations of LordGreeneMR.inYoungv.Bristol
Aeroplane Co,(15) where his Lordship said that "The Rules of the Supreme Court have statutory force and thecourtisbound
to give effect to them as to a statute.")

In the matter before us, following the usual practice of referring a matter for reconsideration to the Judges who decidedit
was more justified than ever, because the complaint revolves around what transpired in Court and afterwards whentheJudges
were considering the matter. The Judges who decided the matter seemed to be the obvious choice. In fact,thinkingaloud,I
did suggest during the argument that this might perhaps yet be done. Upon further consideration, however, sincetheparties
are before us on notice, and there is sufficient material in the Judgments in S. C. Applications 66/95 and67/95todecide
the matter, I am of the view that we should deal with the matterbut the course ofactionwetakeintheextraordinary
circumstances of this case should not be regarded as a precedent for departing from theruleestablishedbypractice.An
exception confirms the rule.

STATUTORY JURISDICTION
When the matter of the petition of the 1st Respondent-Petitioner was taken up for consideration by this Court,Mr.Marapana
submitted that the Court had no jurisdiction conferred on it by the Constitution or by any other law to accede to theprayer
of the 1st Respondent-petitioner to revise or review the decision of the Court. .

An order which has not attained finality according to the law or practice obtaining in a Court can be revoked or recalledby
the Judge or Judges who made the order, acting with discretion, exercised judicially andnotcapriciously.(SeeMoosajees
Ltd. v. P.O. Fernando and Others.(8)) However, as a general rule, no court has power to rehear, review,alterorvaryany
judgment or order made by it after it has been entered (cf. Marambe Kumarihamy v. Perera,(16)) either in an applicationmade
in the original action or matter or in a fresh action brought to review the judgment or order. Ifitissuggestedthata
Court has come to an erroneous decision either in regard to factor law, then amendment of the judgement orordercannotbe
sought, but recourse must be had to an appeal to the extent to which the appeal is available. (See per Morris, LJinThynne
(Marchioness of Bath) v. Thynne (Marquess of Bath).(17) A Court has no power to amend or setasideitsjudgmentororder
where it has come to light or if it transpires that the judgment or order has been obtained by fraud orfalseevidence.In
such cases relief must be sought by way of appeal or where appropriate, by separate action, tosetasidethejudgmentor
order. (Halsbury, paragraph 556). The object of the rule is to bring litigation to finality. The rule is subjecttocertain
exceptions (See Halsbury, Vol. 26 paragraph 556) which I shall deal with later, but taking one thing at a time, letmedeal
with the question of statutory jurisdiction.

In Ganeshanatham v. Vivienne Goonewardene and Three Others, (supra), Ganeshanatham sought relief from theSupremeCourtin
the exercise of the revisionary and inherent powers of the Court. His complaint was that another Bench of the Courthad,to
his detriment, acted per incuriam for the several reasons set out in his application. Samarakoon,CJ(atpp.327-328)
referred to the provisions of the Constitution conferring jurisdiction on the Supreme Court and statedthatnoneofthose
provisions gave the court a jurisdiction to revise its own decisions. Nor had theLegislature,theChiefJusticefurther
observed, acting in terms of Article 118 (g) conferred such a jurisdiction by law.HisLordshipheld"thatthisSupreme
Court has no jurisdiction to act in revision in cases decided by itself." JusticesSharvananda,Wimalaratne,ColinThome,
and Wanasundera agreed with the Chief Justice. Ranasinghe, J. and Rodrigo,J.dissented.However,thedissentingJudges
granted the relief prayed for, not in the exercise of the Court's ordinary, statutory jurisdiction butintheexerciseof
the Court's extraordinary, inherent jurisdiction.

In general, a decision oftheCourtisfinal:itisnotsubjecttoanappeal,revision,review,reargument,or
reconsideration: Hettiarachchi v. Seneviratne and Others,(4) Suren Wickramasinghe and Others v.CornelPereraandOthers,
(5) Cf. Mapalathan v. Elayavan,(18) (17) cf. Elo Singho v. Josep.(19)

The Supreme Court is a creature of statute and its powers are statutory. The Court has nostatutoryjurisdictionconferred
by the Constitution or by any other law to re-hear, review, alter or vary its decision. The decisions oftheSupremeCourt
are final. (E. g. see Senerath v. Chandraratne, Commissioner of Excise and Others, (5) AllCeylonCommercial&Industrial
Workers Union v. The Ceylon Petroleum Corporation and Others,(1). In Ganeshanatham, (supra),Samarakoon,CJ.(atp.328)
drew attention to the fact that the use of the phrase "shall finally dispose of" in Article 126(5),indealingwiththe
exercise of the court's powers in relation to fundamental rights and language rights petitions, andthephrase"finaland
conclusive" in Article 127 in dealing with the Court's appellate jurisdiction, signified that once a matterwasdecidedby
the Supreme Court, the thing is over. There is nothing more that can be done. As far as the matters which are the subjectof
the decision are concerned, it is all over. There is an end to such litigation -asneedsmustbewithalllitigation.
Public policy requires that there must be an end to litigation, for the sake of certainty andthemaintenanceoflawand
order, in the pacific settlement of disputes between the citizen and the State or between otherpersons forthesakeof
preventing the vexation of persons by those who can afford toindulgeinlitigation andfortheconservationofthe
resources of the State. Interest rei publicae ut sit finis litium.
Some people may regard a particular case as being unusual or extraordinary or ofspecialsignificanceforonereasonor
another. However, when the decision is thatofthe"final"Court,asiseverydecisionoftheSupremeCourt,due
consideration should be given to that fact. The Earl of Halsbury, LC,(LordsMacNaughten,MorrisandJamesofHereford
concurring) in The London Street Tramways Company Limited v. The London County Council,(20) observed as followswithregard
to decisions of the final Court in the U.K.:

My Lords, it is totally impossible, as it appears to me, to disregard the whole current of authority upon thissubject,and
to suppose that what some people call an "extraordinary case" an "unusual case", a case somewhat different fromthecommon,
in the opinion of each litigant in turn, is sufficient to justify the rehearing andrearguingbeforethefinalCourtof
Appeal of a question which has been already decided. Of course I do not deny that cases ofindividualhardshipmayarise,
and there may be a current of opinion that such and such a judgment was erroneousbut what is thatoccasionalinterference
with what is perhaps abstract justice as compared with the inconvenience - the disastrousinconvenience-ofhavingeach
question subject to being reargued and the dealings of mankind rendered doubtful by reason of differentdecisions,sothat
in truth and in fact there would be no real final Court of Apeal? My Lords, "interest reipublicae"thatthereshouldbe
"finis litium" at some time, and there could be no "finis litium" if it were possible to suggest in each case thatitmight
be reargued because it is "not an ordinary case," whatever that may mean. Under these circumstances I am of opinionthatwe
ought not to allow this question to be reargued.

WHAT WAS THE HON. ACTING CHIEF JUSTICE ATTEMPTING TO ACHIEVE?
The Hon. Acting Chief Justice, in his Lordship' directions of the 22nd of December,1995explainedthathereferredthe
matter to a Bench of five Judges because there was "a strongdivisionofopinion",andbecausethe"minorityjudgment
sharply disapproves of the use to which extracts from Hansard have been put by the said majority. . ." The Hon. ActingChief
Justice states that the question on which the Judges were divided was a matter of "general and public importance". What,may
I respectfully inquire, might his Lordship's position have been had there been unanimity in regard toeitheroftheviews
taken? Would he have then deemed it appropriate to refer the matter to a "fuller Bench" because itwasstillamatterof
general and public importance?

Mr. Marapana conceded that the matter of parliamentary privilege was important, but inquired,"So,what?".Thepublicor
general importance of a matter does not give the Chief Justice the authority toconstituteanappellatedivisionofthe
Supreme Court to review and revise its own decisions. Indeed, if "general or public importance" is acompellingreasonfor
referring a matter to a Bench of five or more Judges, then in every case thattheSupremeCourtgrantsleaveunderthe
Proviso to Article 128 (2) (which requires that the Supreme Court shall grant leave to appeal in every matterorproceeding
in which it is satisfied that the question to be decided is of public orgeneralimportance),theChiefJusticeonthe
application of a party would be obliged to refer the matter to a Bench of five or more Judges, unless he is preparedtosay
that, although the Court had held it to be otherwise, the question was not one of general and publicimportance.Oughtthe
Chief Justice to come to such a conclusion after the Supreme Court has decided otherwise? From where is such a powerderived
by the Chief Justice? Each Bench of the Supreme Court constituted according to law, is the Supreme Court and its decisionon
a matter is final. The Chief Justice is the head of the Judiciary and as such he has certain uniquepowersandprivileges
but he has no superior powers vis-ā-vis the other Judges of the Court in the matter of adjudication. He is notempoweredto
overrule or even to suspend the decisions of the Court. Nor can he confer jurisdictions on Benchesnominatedbyhimwhich
the law has not given the Court. Article 132 (3) does not conferanappellateorconsultativejurisdictiononaBench
constituted by the Chief Justice.

What is it that the Acting Chief Justice referred to a Bench of fiveJudgespurportingtoactundertheprovisionsof
Article 132(3) ? It is not an "appeal", for it is not sought to obtain the assistance of the Court to correctanyerrorin
fact or in law which has been committed bytheCourtofAppealoranyCourtofFirstInstance,tribunalorother
institution.

(Article 127). As we have seen, the Supreme Court is the highest and final SuperiorCourtofrecord(Article118)and,
therefore there can be no appeals from its decisions. Indeed, the 1st Respondent-Petitioner does not inhispetitionstate
that the decision of the court was incorrect. His position, on a plain reading of the petition, is that "the question ofthe
use of Hansard to assess the veraciy of the affidavit of the 1st Respondent is a matter of public or generalimportanceand
having regard to the expression of the dissent by (one of the Bench of three judges), the issue merits furtherconsideration
and/or review and/or revision by a fuller Bench of Your Lordships Court." In his prayer, the 1stRespondent-petitionerdoes
not clearly and directly request the Court to set aside its order, but prays instead in an ambiguous mannerthattheCourt
be pleased "to revise and/or review and/or further consider the aforesaid issue of the use of Hansard, by referring thesame
for consideration by a fuller Bench". "Revision", "review" and "furtherconsideration"arequitedistinctfunctions.Of
course, the usual general prayer was added: "to grant such other and further relief as to Your Lordship"sCourtshallseem
meet."
The Acting Chief Justice in his directions of the 22nd of December 1995 nominated a Bench of five Judges, tohear,consider
and determine the question whether speeches, debates and proceedings in Parliament as reflected in Hansardcanbeusedas
being legally relevant evidence to compare and contrast and confirm or reject or discreditasinconsistentorunreliable,
affidavits of members of Parliament or of other persons filed in Court proceedings or beforeotherTribunalsreferringto
events or matters outside Parliament, or that they cannot be so used for other purposes, for to dosocouldstrikeator
inhibit the freedom of speech, debate and proceedings in Parliament therebyconstitutingabreachoftheprivilegesof
Parliament as recognized by lawand to make consequential orders thereto....

What, I might respectfully inquire, were the "consequential orders" that were contemplated upon a determination of theCourt
with regard to the complex matters on which the Acting Chief Justice sought the opinion of the Bench of JudgesHisLordship
has constituted? How does all this relate to what the 1st Respondent-petitioneractuallysaidinhispetition?Washis
Lordship primarily seeking an opinion of a "fuller Bench" on the questions formulated by him?

Most certainly, if it is empowered to do so, the Supreme Court may provide its opinion, as distinguishedfromajudgement,
on any matter upon which it is empowered by the law torender.TheConstitutionprovidesforthosematters.E.g.see
Articles 120,121,122,123, 125 and 129.

Article 129 (1) of the Constitution provides as follows:

If at any time it appears to the President of the Repubic that a question of law or fact has arisen orislikelytoarise
which is of such a nature and of such public importance that it is expedient to obtain the opinion of the Supreme Courtupon
it, he may refer that question to that Court for consideration and the Court may,aftersuchhearingasitthinksfit,
within the period specified in such reference or within such time asmaybeextendedbythePresident,reporttothe
President its opinion thereon.

The Chief Justice is not empowered by the Constitution to call upon the Supreme Court to express its opinion on amatterof
public importancenor has the Court the jurisdiction to entertain such a request.

Apart from the exceptional instances in which it has been statutorily vestedwithjurisdictiontoexpressopinions,the
business of the Court is adjudication. A "question" or "issue" of general or public importance in the abstract cannot bethe
subject of a judgment of this Court. A petition for the consideration of a matter merely on the ground of itsimportancein
general should be rejected by this Court, for it is not a matter susceptible toadjudication.Ajudgment"isajudicial
determination of a cause agitated between real partiesupon which a real interest has been settled."Otherwise,"thereis
no judgebut a person invested with the ensigns of a judicial office is misemployedinlisteningtoafictitiouscause
proposed to himthere is no party litigating, there is no party defendant, no real interestbroughtintoquestion."(per
Solicitor-General Wedderburn during the argument in the Duchess of Kingston's Case,(21)andadoptedbyLordBroughamin
Bandon v. Becher.(22)

There could be no "finis litium" if it were possible to suggest in each case in which leave to appeal has been grantedunder
Article 128(2) or in a case referred by the Chief Justice under Article 132 (3) to a Bench of five or moreJudges,thatit
might be reargued because it was concerned with a matter of public or general importance: The unsuccessfulpartyeachtime
would have a right to have his matter considered by a another Bench of five or more Judges. Notwithstandingthedeclaration
in the Constitution that the Supreme Court is the final court of appeal, in effect we would have no final Court of Appealif
the decision of one division of the Court was subject to review or revision or rehearingorfurtherconsiderationinany
manner whatsoever by another division of the Court. At the heart of the matter before us seems to beamisunderstandingof
what is a decision of the Supreme Court.

WHAT IS A DECISION OF THE SUPREME COURT?
There can be no appeal to a higher court or institution from a decisionoftheSupremeCourt,forArticle118ofthe
Constitution declares the Supreme Court to be the highest and final Superior Court of Record. The Supreme Courtconsistsof
the Chief Justice and of not less than six and not more than tenotherJudges.(Article119).Thejurisdictionofthe
Supreme Court may be exercised in different matters at the same time by the severaljudgesofthatCourtsittingapart,
provided that its jurisdiction shall, subject to the provisions of the Constitution, be ordinarily exercised at all timesby
not less than three Judges of the Court sitting togetherastheSupremeCourt.(Article132(2)).Inthematterof
considering whether leave to proceed should be granted when a person alleges that his fundamental rights orlanguagerights
have been violated, the jurisdiction of the Court may be exercised by a Bench of notlessthantwojudges.(Article126
(2)). In the exercise of its consultative jurisdiction, the opinion,determinationandresponseoftheCourtshallbe
expressed after consideration by at least five Judges of the Supreme Court, of whom, unless he otherwise directs,theChief
Justice shall be one. (Article 129 (1)) The hearing and determination ofaproceedingrelatingtotheelectionofthe
President of the Republic shall be by at least five Judges of the Supreme Court of whom, unlessheotherwisedirects,the
Chief Justice shall be one. (Article 130).
When any division of the Court constituted in terms of the Constitution sits together, it does so"astheSupremeCourt".
(Article 132 (2)).

It is one Court thoughitusuallysitsinseveraldivisions.Eachdivisionhasco-ordinatejurisdiction.Whatis
conveniently, but inaccurately called a "fuller Bench" has no greater powers or jurisdiction than any division of theCourt.
If a Bench of all the Judges is a Bench of the Full Court - there is no such description as the "fullest Court" -whatdoes
a "fuller Bench" mean? The judgment of the Supreme Court shall, when it is not an unanimous decision, be the decision ofthe
majority (Article 132 (4)), regardless of the fact that it may, in the opinion of any person whomsoever, be wrong. Nor isit
open to anyone to devalue a decision of the Court on the assumption that one or more judges "merely agree" withtheopinion
of another Judge. It would, for more reasons than one, be inconvenient to a regrettable extent ifaJudge,whoafterdue
consideration of a draft submitted to him feels that he cannot usefully add anything to a judgment of abrotherJudge,may
not merely say that he agrees with his brother, without running the risk ofbeingtaunteddirectlyorbyinnuendowith
mindless, mechanical behaviour.

The Constitution does not provide for an appeal from a decision of one division of the Supreme Court to anotherdivisionof
the Court. Numbers are of no consequence, except that a decision of a Bench of five or more Judgescarriesgreaterweight.
What can be done by a Bench of five or more Judges can equally well be done by a duly constituted Bench of asmallernumber
of Judges. The Court acts as the Supreme Court. And the corollary of that is that what cannot be done by the smallestnumber
of Judges acting as the Supreme Court in terms of the law, cannot be done by a Bench of five or more Judges.(Cf.perLord
Greene, MR in Young v. Bristol Aeroplane Co., (supra) at p. 298).

In Hettiarachchi, (supra), at p. 296, where the Court had refused leave to proceed in the matter of anapplicationforthe
alleged infringement of the petitioner's fundamental rights, the petitioner applied to the Courtfora"fullerBench"to
determine the matter of his appeal for a revision of the decision of the Court. The Court observed as follows:

The petitioner's motion of 30.5.94 was filed under a misapprehension that other Judges of the Court or more Judges,oreven
all the Judges could constitute an appellate tribunal in respect of that decision of theSupremeCourtwhichrefusedhim
leave to proceed under Article 126 (2). While other Judges of the Supreme Court might regard that decision as erroneous,and
refuse to follow it when deciding other matters, it was final as far as that case was concerned.
One division of the court may, as stated in Hettiarachchi, (supra) refuse to follow a decision of another division however,
it would be only in the most exceptional circumstances that the court woulddepartfromoneofitsownprecedents.An
eminent scholar-judge, the late Justice Silberg of Israel, hadoncecommentedthatifacourtdepartedfromitsown
precedents frequently, it would no longer be a "court of justice", butthatitwouldbea"courtofjudges".Justice
Silberg's observations were quoted with approval in Husaam Haj Yihyeh v. The State of Israel,(23) Inthatcase,theissue
was whether a Bench of three judges of the Supreme Court of Israel could dissent from a decision of a Bench offiveJudges.
It was held that while it was possible, it was undesirable, unless the precedent was incorrect. If it was clearlyincorrect,
it should not be followed. As Chief Justice Smoira had said: "Between truth and stabilitytruth must prevail". On theother
hand, if both points of view were possible, then as JusticeBarakhadsaid,"Betweentruthandtruth,stabilitymust
prevail".

In Suren Wickramasinghe, (supra), an application to review an order granting special leave to appealhadbeenmadeanda
"fuller Bench" had been requested. The Court said:

Apart from instances where the law expressly provides otherwise, a bench of more than three Judges canonlybeconstituted
under Article 132 (3) of the Constitution, and the power to do so is vested in the Chief Justice alone.Article132shows,
ex facie, that that power can only be exercised in respect of a pending appeal, proceeding or matter - but not in respectof
a concluded matter. SC (SLA) Application No. 49/96 is a concluded matter. Further, in terms of Article 132 (2) a judgmentor
order delivered by a bench of three Judges is the judgment or order of the Supreme Court, and not of"somefragmentedpart
of the Court"it is final (cf. Article 127 (1)), and is not subject to appeal to another bench oftheCourt,evenifit
were to consist of five, or seven, or nine, or even all the Judges: Hettiarachchi v. Seneviratne (No. 2), (supra),whereit
was also pointed out that, It is quite wrong to assume . . . that the power of the Chief Justice underArticle132(3)to
direct that an appeal, proceeding or matter be heard by a bench of five or more Judges ...makesanydifference.That
provision confers no right of appeal, revision or review.

ARTICLE 132 (3) OF THE CONSTITUTION
The learnd Solicitor-General, agreeing with the submissions of Mr. Marapana, stated that Article 132 (3) did not confer any
right of appeal, revision or review. That was also the view of this Court in Hettiarachchi, (supra), and in Suren
Wickramasinghe, (supra). I find myself in agreement with that view.
Article 132 (3) provides as follows:
The Chief Justice may-
(i) of his own motionor
(ii) at the request of two or more Judges hearing any matteror
(iii) on the application of a party to any appeal, proceeding or matter if the question involved is in the opinion of the
Chief Justice one of general and public importance,
direct that such appeal, proceeding or matter be heard by a Bench comprising five or more Judges of the Supreme Court.
Perhaps Article 132 (3) in certain respects may be capable of more than one interpretation. It has, as far asIknow,been
always taken for granted that a matter is referred to a Bench of five or more Judges by the ChiefJustice,whetherofhis
own motion, or at the request of two or more Judges, or on the application ofaparty,becausethequestionisoneof
general and public importance. The Article it seems to me has been taken to mean as follows:

If in the opinion of the Chief Justice the question involved in any appeal, proceeding or matter is one of general orpublic
importance, he may
(i) of his own motionor

(ii) at the request of two or more Judges hearing any matteror

(iii) on the application of any party in such appeal, proceeding or matter,

direct that such appeal, proceeding or matter be heard by a Bench composed of five or more Judges of the Supreme Court.

Be that as it may, there has been no doubt that Article 132 provides for the manner in which the jurisdictionoftheCourt
may be ordinarily exercised. Article 132 does not confer any jurisdiction on the Court. Nor does Article 132 (3) empowerthe
Chief Justice to refer any matter of public or general importance to a Bench of five ormoreJudges.Itempowershimto
constitute a Bench of five or more Judges to hear an appeal, proceedingormatterwhichtheCourthasjurisdictionto
entertain and decide or determine. The court has no statutory jurisdiction to rehear, reconsider,revise,review,varyor
set aside its own orders. Consequently, the Chief Justice cannot refer a matter to a Bench of five ormoreJudgesforthe
purpose of revising, reviewing, varying or setting aside a decision of the Court. The fact that in the opinion oftheChief
Justice the question involved is a matterofgeneralorpublicimportancemakesnodifference.InHettiarachchiv.
Seneviratne,(4) followed in Suren Wickramasinghe and Others v. Cornel Lionel Perera and Others,(6) it was pointed out that,

It is quite wrong to assume . . . that the power of the Chief Justice underArticle132(3)todirectthatanappeal,
proceeding or matter be heard by a bench of five or more Judges . . . makes any difference. That provision confersnoright
of appeal, revision or review.
To use Article 132 in that way would be to usurp legislative power, in order to create an additional rightofappealwhich
the Constitution did not conferand, indeed, in effect to create a rightofappealwithleavefromtheChiefJustice
sitting alone.
There have been, as far as I have been able to ascertain, at least 58 appeals, proceedings or mattersheardbyBenchesof
five or more Judges since 1978. It came as no surprise to find that there is no instance of a concludedmattereverhaving
been referred to such a Bench under Article 132 (3) for revision, review or further consideration.InSurenWickramasinghe
and Others v. Cornel Lionel Perera and Others, (supra), Fernando, J.(DheeraratneandWijetunga,JJ.agreeing)saidas
follows:
Apart from instances where the law expressly provides otherwise, a bench of more than three judges canonlybeconstituted
under Article 132 (3) of the Constitution, and the power to do so is vested in the Chief Justice alone.Article132shows,
ex facie, that power can only be exercised in respect of a pending appeal, proceeding or matter - but notinrespectofa
concluded matter.

The Court had more than enough justification for arriving at that decision.
Ganeshanatham (supra) is not, as it is sometimes supposed, an illustration of a reference of a concludedmatterforreview
or revision or reconsideration of its decision by way of an appeal or otherwise. The petitioner in that case was not aparty
in S.C. Application 20/83 Vivienne Goonewarden v. Hector Perera and Others (supra). Indeed, his complaintwasthathehad
been found guilty of violating Mrs. Goonewardene's fundamental rights without being madeapartytotheproceedingsand
without being heard. It was not a case of the same question as had been alreadyjudiciallydecidedbyaBenchofthree
Judges once again being raised between the same parties before a Bench of seven Judges.

When an application was made by the petitioner in Ganeshanatham, (supra), the matter was listed in theusualwaybeforea
Bench composed of the same three Judges who had heard VivienneGoonewardene'scasebecausetherewasreferenceinthe
petition to a matter that had arisen in the hearing and determination of Ganeshanatham. The caption in Ganeshanathamwasas
follows: "In the matter of an application in revision and for the exercise of the inherent powersandjurisdictionofthe
Supreme Court." The three Judges, as we have seen, acting under Article 132 (3)oftheConstitutionrequestedtheChief
Justice to determine two questions: "(1) Has the Supreme Court jurisdiction torevieworreviseinanymanneritsown
judgment in S.C. Application No. 20/83 (Vivienne Goonewardene'scase)?(2)Ifso(a)onwhatgroundsorunderwhat
circumstances can such jurisdiction be exercised?(b) what procedure should be followed to obtain relief?" Accordingly,the
Chief Justice, acting under the powers vested in him by Article 132 (3), constituted a Bench of seven Judges.

The Court decided that it had no jurisdiction conferred by the Constitution or any other law torevieworreviseitsown
judgment in any matter. However, it was held thattheCourthadinherentpowerstoreviseitsdecisionsincertain
circumstances, but that the petitioner's matter was not one in which those powers should be exercised.

In the matter before us, the 1st Respondent-petitioner prays that the Court be pleased to (a) "reviseand/orreviewand/or
further consider the aforesaid issue of Hansard, by referring the same for consideration by a fuller Bench, and (b) togrant
such other and further relief as to Your Lordships Court shall seem meet." The 1st Respondent-petitioner in paragraph16of
his petition, stated that "the question of the use of Hansard to assess the veracity of the affidavit of the1stRespondent
is a matter of public or general importance and having regard to the expression of dissent by (one of the Judges), theissue
merits further consideration and/or review and/or revision by a fuller Bench of Your Lordship's Court.".

In the matter before us, the 1st Respondent-petitioner, unlike the petitioner in Ganeshanatham, was a party inaproceeding
that had been finally decided by the Court. For the reasons I have explained, the Courthasnostatutoryjurisdictionto
revise, review or further consider all or any of the matters that have been adjudicated upon. Thefactthatamatterwas
decided by a majority does not assist him, for the decision of the majority, whether it be right or wrong,isthedecision
of the Supreme Court in terms of Article 132 (4) of the Constitution. The importance of a matter does not, as wehaveseen,
make any difference. Article 132 does not confer any jurisdiction on the Court. It merely provides for themannerinwhich
the jurisdictions of the Court, conferred by the Constitution or by law, may be exercised. Article 132 (3) doesnotempower
he Chief Justice to refer any appeal, proceeding or matter whatsoever to a Bench of five or more Judges: It empowershimto
constitute a Bench to hear an appeal, proceeding or matter in which the Court has jurisdiction.

THE INHERENT JURISDICTION OF THE SUPREME COURT
Although as a general rule, no court or judge has power to rehear, review, alter or vary any judgment or order afterithas
been entered, either in an application made in the original action or matter orinafreshactionbroughttoreviewthe
judgement or order, yet the rule is subject to certain exceptions.
All Courts have inherent jurisdiction to vary their orders in certain circumstances.(E.g.seeHettiarachchi,(supra)at
297Wijeyesinghe et al. v. Uluwita(24) Easwaralingam v. Sivagnanasunderam,(25))
Mr. Marapana submitted that, as far as the Supreme Court - the final Court -was concerned, theexceptionswerelimitedto
those mentioned in Ganeshanatham, (supra), at page 377 by Rodrigo, J. I am reluctant to limittheexceptionsbyanylist
that purports to be exhaustive, and that is the preferable course in the consideration of matters of thiskind.Iseethe
difficulty of defining where you are to stop. In the words of Evershed, MR in Meier v. Meier(26) "I prefer not toattempta
definition of the extent of the court's inherent jurisdiction to vary, modify or extend itsordersif,initsview,the
purposes of justice require that it should do so." The view of the Master of the Rolls was followed by Morris, LJinThynne
(Marchioness of Bath) v. Thynne (Marquess of Bath), (supra) at pp.145,146). I shall, as Morris, LJdid,withoutpurporting
to categorise, mention some illustrations of the scope of the Court's powers.

However, let me first say this: When a person invokes to exerciseitsinherentpowers,theCourtmustaskitselftwo
questions, as Garvin, SPJ did in Mohamed v. Annamalai Chettiar,(27):
(a) Is it a case which comes within the scope of the inherent powers of this Courtand
(b) Is it one in which those powers should be exercised?

There is no doubt that a clerical mistake in a judgment or order or some errorarisinginajudgmentororderfroman
accidental slip or omission may be corrected under the Court's inherent jurisdiction. (See Halsbury, Vol. 26Paragraphs556
and 557cf. Marambe Kumarihamy v. Perera, (supra). For instance, in Padma Fernando v. T. S. Fernano,(28) inthematterof
an application for a writ of habeas corpus, H.N.G. Fernando, J. delivered his judgment on the 24th of October,1956holding
that a father's right to the custody of his child during the subsistence of his marriage maybeoverriddenontheground
that if the child is permitted to continue in the custody of the father there would bedetrimenttothelife,healthor
morals of the child. In the circumstances of the case, his Lordship directed the father to deliver custody ofthechildto
the mother. On October 29th 1956, H.N.G. Fernando, J. said (at p. 264): "My attention has been drawn to provide in theabove
order that the Respondent (the father) may have access to the child. I direct that the Respondent should havetherightto
visit the child ................"

A court has the power to vary its orders in such a way as to carry out its ownmeaningand,wherethelanguageusedis
doubtful, to make it plain. (See per Lord Penzance in Lawrie v. Lees,(29). In Re Swire(30) Lindley, LJ. said that ". ..if
an order . . . does not express the real order of the Court, it would, as it appears to me,beshockingtosaythatthe
party aggrieved cannot come here to have the record set right . . . It appears to me, therefore that, if it is once madeout
that the order . . . does not express the order actually made, the Court has ample jurisdiction to set thataright,whether
it arises from a clerical slip or not."

In Paul E. de Costa & Sons v. S. Gunaratne,(31) the decree of the District Court was thatthepetitionerswhocarriedon
business under the name of "Paul E. de Costa & Sons" should pay a sum of Rs. 60,000 from their personal andprivateassets.
However, according to the judgment, the sum was payable out of the firm"s money and not out of the personal propertyofthe
partners. The decree had been affirmed in appeal by the Supreme Court.Uponapplicationforrevision,Manicavasagar,J.
(Samerawickrame, J. agreeing) said at p. 215 as follows:

. . . the Court has the inherent power, if the judgment does not correctly state what it actually decidedandintended,to
vary its judgment so as to carry out its manifest intention. The law on this point was stated by Lord Watson in thecaseof
Hatton v. Harris (32) and it supports the proposition I have just stated:

When an error of that kind has been committed, it is always within the competency of the Court,ifnothinghasintervened
which would render it inexpedient or inequitable to do so, to correct the record in order to bring it into harmonywiththe
order which the Judge obviously meant to pronounce.The Supreme Court held that the decree should be amended bytheaddition
of the stipulation that "the said sum of Rs. 60,000 and interest shall not berecoverablefromthepersonalandprivate
assets of the petitioners save and except to the extent of their interests in the said firm of Paul E. de Costa and Sons."

In Raju v. Jacob,(33) the petitioner, who had been sentenced to a term of one year's rigorous imprisonment,didnotappeal
against the order of the Magistrate but made an application in revision. TheSupremeCourtorderedthathardlabourbe
stayed from the 19th of July 1967 till the disposal of the application. When the application wassubsequentlydismissedon
the 14th of September 1967, the Court made no order regarding the resumption of hard labour as the fact that hard labourhad
been stayed was not brought to its notice. Further, on account of the delay, through oversight, in the communicationtothe
authorities of the order dismissing the application in revision, hard labour was not resumed until the 30th of October1967.
It was contended on behalf of the petitioner that the entire period during which he was kept in remandwithouthardlabour
should be deducted from the term of one year's rigorous imprisonment imposed on him. There was no authority orprovisionof
law in regard to a similar matter in so far asapplicationsforrevisionwereconcernedalthoughtherewasstatutory
provision with regard to appeals. The Criminal Procedure Code provided that in the case of an appellant whowasincustody
pending an appeal, the Supreme Court had the power to order that the time so spent or any part thereof shall bereckonedas
part of the term of his sentence. Weeramantry, J. in granting the petitioner the benefit of the period spent inremandsaid
as follows:

I see little distinction in principle between an appeal in which hard labour is stayed and a revisionapplicationinwhich
this court has made express order to the same effect. Moreover the revision applicationinthiscasehasbeenfiledin
respect of an appealable order and I do not think itwouldbecorrecttodenyrelieftotheapplicantonthemere
technicality that what came before this courtwas a revision application and not anappeal.Ifintheexerciseofits
jurisdiction this court may give byway of revision the same relief it may grant by way of appeal I see nojustificationfor
denying to an applicant in revision, whose application has been entertained by thiscourt,anelementaryrightwhichis
conferred on every appellant. The silence of the Criminal Procedure Code on this matter cannot take awayfromtheinherent
powers of this court to grant relief of the nature contemplated by section 341 (5) to an applicant in revision. The grantof
such relief is of course a matter entirely in the discretion of the court and will always be dependent onthecircumstances
of each case. In the circumstances of this case I cannot lose sight of the fact that noticehasissuedupontherevision
application and that a stay of hard labour has been expressly ordered by this court. It is alsomostunusualforrevision
applications to be filed by accused in jail and I understand this to be the only application so filed over a longperiodof
time. In Kariapperuma and Another v. D. J. Kotelawala,(34) H. N. G. Fernando, CJ.(Thamotheram,J.agreeing),allowedan
appeal and dismissed the plaintiff's action. The Chief Justice in his judgment considered the judgmentofKeuneman,J.in
Valliammai Atchi v. O. L. M. Abdul Majeed(35) and the decision of the Privy Council in that case reported in 48 NLR289.In
a "Post-Script" to the judgment, the Chief Justice explained as follows:

I much regret that owing to an error in my note of the arguments in this appeal, my judgment attributed toCounselforthe
Cont..

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