Legal Services and Laws of Sri Lanka
SLR - 1999 Vol.1, Page No - 1
B. SIRISENA COORAY
TISSA DIAS BANDARANAYAKE AND TWO OTHERS
GUNAWARDANA, J. AND
S.C. SPECIAL (WRIT) NO. 1/98
NOVEMBER 18, AND 19, 1998.
DECEMBER 18, 1998
JANUARY 8, 21, 1999
Writ of Certiorari - Report of a Commission of Inquiry under the Special Presidential Commission of Inquiry Law-Liability
for contempt of the Commission - Scope of the writ jurisdiction of theSupremeCourt-AmenabilityoftheCommission's
report to judicial review - Special Presidential Commissions of Inquiry Law, No. 7 of 1978, sections 2, 7, 9, 11, 12, 16and
18A of the Law - Articles 13 (3), 81, 89, 91 and 140 of the Constitution - Section 22 of the Interpretation Ordinance.
The President issued a warrant under the SpecialPresidentialCommissionsofInquiryLaw,No.7of1978asamended
appointing the 1st respondent and two others as Commissioners to inquire into and report on matters specified in thewarrant
relating to the assassination of late Lalith William Athulathmudali.TheothertwoCommissionersresignedandthe2nd
respondent was appointed as a Commissioner. On 12. 07. 1996 acting intermsofsection16oftheLaw,theCommission
informed the petitioner that it was of the opinion that he was a person whose conduct should be subject to inquiryandthat
he was entitled to legal representation. He was not informed of the date of the inquiry. Atthetimeofthatnoticethe
petitioner had left for the USA On 02. 08. 1996 when the petitioner was stilloutoftheIsland,theSecretarytothe
Commission by its order, wrote letter P3 to the petitioner requesting him to attend theofficeoftheCommissionon9th
August to record his statement. The petitioner's son replied P3 stating that it was received on 7th August and that itwould
be given to the petitioner on his return. On 19. 12. 1996 the Commission caused a notice P5 to be affixed on thefrontdoor
of the petitioner's residence. P5 referred to the two previous notices issued by the Commission, allegedthatdespitesuch
notices the petitioner was travelling in different foreign countries and was since 'moving from placetoplaceinIndia',
stated that the evidence before the Commission disclosed his complicity in themurderoflateLalithAthulathmudaliand
commanded him to appear in person on 09. 01. 1997 before the Commission. On 03. 01.1997thepetitioner'sattorney-at-law
addressed a letter to the Secretary of the Commission seeking another date as the petitioner's counsel was not freeon09th
January. On 09. 01. 1997 junior counsel for the petitioner appeared before the Commission and moved for a date onbehalfof
the senior counsel. But this was refused on the ground that lawyers had no status as the petitioner had failed toappearon
summons. On the same day the Commission issued a warrant for the arrest of the petitioner. On 18.01.1997theCommission
purported to make a determination that the petitioner was guilty of the offence of contempt under section 12 (1) of theSPCI
Law and disqualified from being elected to Parliament for 7 years in terms of Articles 89 and 91 of the Constitution.
Alternatively, the Commission determined that on the basis of the 'evidence' before it, the petitioner was 'responsible`for
the assassination of Mr. Athulathmudali and directly concerned as amemberoftheconspiracytoassassinatehimwhich
amounted to political victimization, and that he also procured police officers to assist which amountedtocorruption.The
Commission recommended that the petitioner be subjected to civic disability.
At the hearing of the application the counsel for the 1st and 2nd respondentsinteraliaraisedcertainlegalobjections,
(a) that the petitioner's application should be rejected on the ground of delay
(b) that the writ jurisdiction of the Supreme Court has been ousted by preclusive clauses contained in the SPCI Lawandthe
(c) that the report of the Commission was not amenable to judicial review.
1. There was no delay in making the application in that the petitioner made it so soon as hebecameawareofthefinding
against him from the report of the Commission after its publication as a sessional paper.
2. The writ jurisdiction of the Superior Courts is conferred by Article 140 of the Constitution. It cannot berestrictedby
the provisions of ordinary legislation contained in the ouster clauses enacted in sections 9 (2) and 18A of the SPCILawor
section 22 of the Interpretation Ordinance. Infactthefirstprovisotosection18A(2)specificallyconferswrit
jurisdiction on the Supreme Court. That jurisdiction is unfettered.
3. The recommendation or the decision of the Special Presidential Commission has the effect of potentiallyjeopardisingthe
rights of persons. As such the Commissioner's report is amenable to judicial review. Section 18A (2) of the SPCILawitself
contemplates the exercise of judicial review by the Superior Courts over Commissions appointed under the Law.
Per Dheeraratne, J.
In a democracy the Commissions cannot be permitted to be a law unto themselves and operate outside the ambit of theRuleof
Law. As observed by G. P. S. de Silva, CJ, inPremachandrav.MajorMontagueJayawickremam(35)at102"...our
Constitution and the system of Government are founded on the Rule of Lawand to prevent the erosion ofthatfoundationis
the primary function of an independent judiciary'.
4. The summons issued by the Commission (P5) was flawed as it was not in conformity with sections 7 (1) (c)and11(3)of
the SPCI LawNor was it a notice under section 16. Hence the warrant too was flawedand theCommissionhasnopowerto
'convict' any person of any offence. That power is vested in the Supreme Court - section 10 (1) of the Law.
5. The determinations andrecommendationsoftheCommissionareflawedfirstlyasbeingunreasonableinthatthe
Commissioners did not call their own attention to the relevant matterssecondly as they are not basedonevidenceofany
probative valueand thirdlybecausethosedeterminationsandrecommendationshavebeenreachedwithoutgivingthe
petitioner a right of hearing in breach of the principles of natural justice.
Per Dheeraratne, J.
"The legislature has (in providing for appointment of Judges to the Commission) in all probabilitygivenitsmindtothe
fact that a Judge will bring to bear in functioning as a Commissioner, his legal training andjudicialexperienceandthe
combination of those attributes will make him not onlytoact,inthewordsofBurke,with'coldneutralityofan
impractical judge' but also act fairly".
Cases referred to:
1. Bandaranaike v. Weeraratne and two others (1978-1979) 2 Sri LR 412.
2. Weeraratne v. Hon. Percy Colin-Thome' and Three Others (1988) 2 Sri LR 151.
3. Wickramabandu v. Herath and Others (1990) 2 Sri LR 348.
4. Visuvalingam and Others v Liyanage and Others (1984) 2 Sri LR 123.
5. Hopman and Others v. Minister of Lands and Land Development and Others (1994) 2 Sri LR 240 at 247.
6. Atapattu and Others v. Peoples Bank (1997) 1 Sri LR 208.
7. Goonesinha v. De Kretser (1944) 46 NLR 107.
8. K Nakkuda Ali v. Jayaratne (1950) 51 NLR 457.
9. Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation (1947) 2 ALL ER 680.
10. CCSU v. Minister for the Civil Service (1984) 3 ALL ER 935 at 951.
11. The King v. Electricity Commissioners, Ex parte London Electricity Joint Committee Company (1920) Ltd and Others (1924)
1 KB 171 at 205.
12. De Mel v. De Silva (1949) 51 NLR 105.
13. Dias v. Abeywardene (1966) 68 NLR 409.
14. Fernando v. Jayaratne (1974) 78 NLR 123.
15. (a) Ratnagopal v. The Attorney-General (1969) 72 NLR 145.
15.(b) Ratnagopal v. The Attorney-General (1968) 70 NLR 409.
16. Silva and Others v. Sadique and Others (1978-79-80) 1 Sri LR 166 (5JJ).
17. Mendis, Fowzie and Others v. Goonewardena and Silva (1978-1979) 2 Sri LR 322.
18. Selvarajan v. Race Relations Board (1976) 1 ALL ER 12.
19. Secretary of State for Home Department ex parte Hosenball (1977) 3 ALL ER 452 (1977) 1 WLR 766.
20. Breen v. Amalgamated Engineering Union and Others (1971 2 QB 175).
21. CHVT Ltd. v. Price Commission 1976 ICR 170 at 179.
22. Chief Constable of North Wales Police v. Evans - 1982 1 WLR 1155.
23. Daganayasi v. Minister of Immigration 1980 2 NZLR 130.
24. R. v. Secretary of Trade, ex parte Perestrello 1981 QB 19.
25. McInnes v. Onslow-Fane 1978 1 WLR 1520.
26. R. v. Liverpool Corporation ex parte Taxi Fleet Operators' Association (1972) 2 B 299.
27. R. v. Criminal Injuries Compensation Board ex parte Lain (1967) 2 ALL ER 770 at 777-778.
28. In re Pergamon Press Ltd. (1970) 3 ALL ER 535 at 539.
29. Re Grosvenor and West End Railways Terminus Hotel Ltd. (1897) 76 LT 337.
30. Hearts of Oak Assuarance Company Ltd. v. AG 1932 AC 392, 1932 ALL ER 732.
31. Wiseman v. Bomeman 1969 3 ALL ER 275, 1969 3 WLR 706.
32. Re SBA Proprties Ltd. - 1967 2 ALL ER 615 1967 1 WLR 799.
33. R. v. Gaming Board for Great Britain ex parte Benaim 1970 2 ALL ER 528 1970 2 WLR 1009.
34. Russel v. Duke of Norfolk (1949) 1 ALL ER 109.
35. Premachandra v. Major Montague Jayawickrema and Another (1994) 2 Sri LR 90 at 102.
36. Karunathilleke v. Ameen (1943) 44 NLR 213.
37. Re U. N. Wijetunga (1976) 70 NLR 515.
38. Bandaranaike v. de Alwis (1982) 2 Sri LR 664 at 673.
39. Mohan v. Air New Zealand (1984) ALL ER 201.
40. R. v. Deputy Industrial Injuries CMR, Ex P. Moore (1965) 1 ALL ER 81.
APPLICATION for a writ of certiorari against the Special Presidential Commission of Inquiry.
K. N. Choksy, P.C., with Desmond Fernando, P.C., Sunil Rodrigo, Crossette Thambiah, M. D. K. Kulatunga, Hemantha
Warnakulasuriya,Methsiri Cooray, V. K. Choksy and K. Wijetunga for petitioner.
Wijedasa Rajapaksa with Tilaka-Bandara Waduressa, Nihal Bamunuarachchi, Dhammika Abeygunawardena, Kapila Liyanagamage and S.
A. Sripathi for the 1st and 2nd respondents.
Kolitha Dharmawardena, DSG with Harsha Fernando SC, for the 3rd respondent.
February 05, 1999.
The petitioner moved the Court of Appeal by this application for a writ of certiorari to quash thefindings,determinations
and recommendations, made in respect of him, by a commission whichwasappointedintermsoftheSpecialPresidential
Commissions of Inquiry Law No. 7 of 1978 as amended by Acts No. 4 of 1978 and No. 38 of 1986 (the SPCILaw),consistingof
the 1st and 2nd respondents. The application for writ stood transferred to this court in terms of section18AoftheSPCI
Law, as the 1st respondent commissioner was a Judge of the Supreme Court when he was appointed to the commission.
The warrant issued by Her Excellency The President dated 7th December, 1994, stated :
"Whereas Lalith William Athulathmudali, late leader of the Democratic United National Front wasassassinatedonApril23,
And, whereas, numerous allegations have been made that the investigationintotheabove-mentionedassassinationwasnot
conducted in a proper and impartial mannerAnd,whereas,itappearstometobenecessarytoestablishaSpecial
Presidential Commission of Inquiry into the matters hereinafter mentioned, being mattersinrespectofwhichaninquiry
will, in my opinion, be in the public interest" the 1st respondent and two others were being appointed as commissioners.The
other two commissioners resigned some time thereafter and the 2nd respondent was appointed commissioner.
The commissioners were required to hold all inquiries, make investigations, and to make recommendationsinrespectofthe
following matters :
"(a) the circumstances relating to the assassination ofthelateLalithWilliamAthulathmudaliatameetingheldat
Kirulapone, on April 23, 1993, and the person or persons directlyorindirectlyresponsibleforsuchassassinationand
whether any persons conspired to assassinate, or aided and abetted in assassinating the saidLalithWilliamAthulathmudali
at Kirulapone on April 23, 1993
(b) the circumstances relating to physical attacks on the late Lalith William Athulathmudali -
(i) at Pannala on November 2, 1991
(ii) at Madapatha, Piliyandala on April 23, 1992
(iii) at the Fort Railway Station on August 7, 1992, and
(iv) at Dehiwala on August 29, 1992,
and whether the persons involved in, or connected with, any or all of the 3 attacks weredirectlyorindirectlyconnected
with or involved in the aforesaid. assassination
(C) whether there was a failure or omission on the part of any public officer to perform any duty required of him by law, in
relation to investigations into the incidents referred to in paragraphs (a) and (b)
(d) whether there was a failure to provide or intentional withdrawal of security by the authorities at the meetingheldat
Kirulapone on April 23, 1993, at which the late Lalith William Athulathmudali was assassinated and if so, personorpersons
responsible for such failure or intentional withdrawal
(e) whether there was a failure by the authorities concerned toprovideadequatepersonalsecuritytothelateLalith
William Athulathmudali despite repeated requests by him, for such security".
The findings of the commission in respect of the petitioner were summed up in the report at page 215 as follows :
"These crimes have been planned not by a volcanic type of personality whojustexplodesandsubsides.Thisplannerhas
awaited his time patiently after careful preparations, and getsothers,perhapsunderobligation,tocommitcrimesto
sustain their corrupt regime. We observe Mr. Sirisena Cooray's conduct in avoiding the commissionwitha'letter'andan
'affidavit' the contents of which are revealing. His excuses contained in the 'affidavit' are notacceptable.Hispresence
was required. These documents are valueless.
In the background of all the evidence taken together we draw theirresistableinference,supportedbyMr.Cooray'sown
conduct in avoiding the commission by going abroad that he was one of those responsiblefortheseassassinationsandwas
directly concerned in and a member of the conspiracy to assassinate Mr. Athulathmudali inconsequenceofwhichconspiracy
Athulathmudali was assassinated. All of the facts and circumstances taken together are notconsistentwithanyreasonable
theory of his innocence.
The commission would ordinarily have recommended that this act of murder amounts to political victimisation, theprocurement
of police officers such as the police to assist amounts tocorruption,andmakingupafalsescenarioinrespectof
Ragunathan's death, a fraudulent act to subvert the course of justice and he (sic) should besubjecttocivicdisability.
But this result has already taken place by operation of law (ie) by reason of his conviction for contempt of thecommission.
We recommend that he be made subject to civic disability if our view of the consequences of the finding ofcontemptofthe
commission are unacceptable. There are also Penal Code offencesthatmaybeconsideredbytheAttorney-General.Those
offences are conspiracy with others to commit murder, and abetment of the offence of murder".
It was contended on behalf of the petitioner, firstly, that the commission's findings on contempt and the decisionthatthe
petitioner stands deprived of his civic rights by operation of Article 89 (i) (ii) of the Constitution, havebeenmade,in
excess of jurisdiction of the commission. Secondly, it was contended, that the commission's findings of complicitywiththe
assassination of Mr. Lalith Athulathmudali, political victimisation, corruption, and subverting thecourseofjustice,in
respect of the petitioner, and the recommendation for the imposition of civic disability on him, were made,intheabsence
of any credible evidence, and without permitting him the rightoflegalrepresentation,contrarytotheprinciplesof
natural justice and contrary to the mandatory provisions of section 16 of the SPCI Law.
The 1st and 2nd respondents took up the position that the petition should be rejected on the ground of delay. Thereportof
the commission was published as a Sectional Paper on 30th January, 1998 and was made available to the public onlyinMarch,
1998. As far as the determination on the matter of contempt was concerned, although it was made on18thJanuary,1997and
the petitioner came to know of that soon thereafter, it was not until the petitioner had access to the report that hebecame
aware that the commission had "convicted" him and determined that he was disqualified from being an elector byoperationof
law. The petition was filed on 19th of May, 1998 and we are of the view that there was no delay inmakingtheapplication.
The next matter raised on behalf of those respondents was that inasmuch as the petitioner has acted in breach of RuleNo.3
(1) (a) of the Court of Appeal (Appellate Procedure) Rules 1990, in that, the proceedings before the commission and notesof
the commissioners were not filed along with the petition, the petition mustberejected.Wepointedouttotheteamed
counsel for those respondents, that we have not been invited by this application to exercise any appellatejurisdictionand
therefore the commission's report was adequate for exercising judicial review.
The other two objections taken on behalf of the 1st and 2nd respondents were broadly (1) that the writ jurisdictionofthis
court was ousted or affected by the preclusive clauses contained in the SPCI Law and theInterpretationOrdinanceand(2)
that the report of the commission was not amenable to judicial review. I shall deal with those vital issues,inthatorder
before proceeding to consider (a) the determination on contempt and (b) the findings on conspiracy tomurderthelateMr.
Athulathmudali and other matters, concerning the petitioner reached by the commission.
Writ jurisdiction of the Supreme Court, the preclusive clausescontainedintheSPCILaw,andtheprovisionsofthe
The general writ jurisdiction was originally conferred onthepre1978SupremeCourtbytheprovisionsoftheCourts
Ordinance No. 1 of 1889 and thereafter by provisions of the Administration of Justice Law, No. 44 of 1973. It issignificant
to observe that the writ jurisdiction of the present Supreme Court is anchored on two provisions oftheConstitutionwhich
came into force on 7th September, 1978. In terms of the Constitution the writ jurisdiction is ordinarily exercisablebythe
Court of Appeal. Firstly, Article 126 (3) mandates the Court of Appeal, where in the course of hearingintoanapplication
for orders in the nature of a writ of habeas corpus, certiorari, prohibition, procedendo, mandamus and quowarranto,ifit
appears to that court that there is prima facie evidence of an infringement or imminent infringementoftheprovisionsof
chapter III (fundamental rights) or chapter IV (language rights) by a party to such application, torefersuchmatterfor
determination by the Supreme Court. That provision does not concern us in this case. Secondly, Article 140, provides:
Subject to the provisions of the Constitution, the Court of Appeal shallhavefullpowerandauthoritytoinspectand
examine the records of any court of First Instance of tribunal or other institution, and grant and issue, accordingtolaw,
orders in the nature of writs of certiorari, prohibition, procedendo, mandamus, and quo warranto, against thejudgeofany
court of First Instance or tribunal or other institution or any other person.
Provided that Parliament may by law provide that in any such categoryofcasesasmaybespecifiedinsuchlaw,the
jurisdiction conferred on the Court of Appeal by the preceding provisions of this Article shall be exercised bytheSupreme
Court and not by the Court of Appeal.
The SPCI Law, No. 7 of 1978 came into force on 10th February, 1978. The SPCI Amendment Act No. 4 of1978whichbroughtin
several important amendments to the principal enactment, though certified on 22nd November,1978,wasgivenretrospective
effect by its section 12, as having deemed to come into operation on the date on whichtheprincipalenactmentcameinto
operation. I may add that the amendments naturally led to a great deal of controversyassomeofthemweredirectedto
nullify the effect of the judgment of the Court of Appeal in Bandaranaike v. Weeraratne and two others(1).
Subsection 18A (1) brought in by the SPCI Amendment Act provided that :
Every application to the Court of Appeal in relation to any commission established orpurportedtohavebeenestablished
under this Law or any member thereof and every application to such court to which such commission or a memberthereofisa
party shall, where such commission at the time it was so established or such application is made consistsofatleastone
Judge who was a Judge of the Supreme Court or Court of Appeal or where such member atthetimeofhisappointmentasa
member of a commission or at the time of the application is or was a Judge of the Supreme Court or of theCourtofAppeal,
stand transferred to the Supreme Court which shall in respect of such application have and exercise allthepowersofthe
Court of Appeal and the Court of Appeal shall not have or exercise any power or jurisdiction to deal with such application.
It is seen that the provisions of the above subsection are referable to the proviso to the Article 140 oftheConstitution.
(For similar power granted to the Supreme Court to issue writs see section4oftheUrbanDevelopmentProjectsSpecial
Provisions Act, No. 2 of 1980).
The SPCI Law contains several preclusive clauses eitheroustingorpartiallyoustingthewritjurisdiction.Theyare
subsections 2 (5), 9 (2), and 18A (2). Only subsections 9 (2) and 18A require our attention in this case.Subsection9(2)
states that :
"Any report, finding, order, determination, ruling or recommendation, made by a commission under thisLaw,shallbefinal
and conclusive, and shall not be called in question in any court or tribunal by way of writ or otherwise".
Subsection 18A (2) (which is deemed to have come into operation on the date the principal law came into operation) states :
"No court shall, notwithstanding anything to the contrary, have powerorjurisdictiontomakeanyorderatanystage
whatsoever and in any manner -
(a) staying, suspending or prohibiting the holding of any proceeding before orbyanycommissionestablishedbywarrant
issued by the President in the exercise of the powers vested in the President under section 2 (1) or the making of anorder,
finding, report, determination, ruling or recommendation by any such commission
(b) setting aside or varying any order, finding, report, determination, ruling orrecommendationofanysuchcommission
Provided that where by reason of the provisions of subsection (1) any application stands transferred totheSupremeCourt,
such court may, only upon final determination of such application, make any orderwhich,inthelawfulexerciseofits
jurisdiction, such court may make "
(The second proviso omitted)
These preclusive clauses in the SPCI Law must be readsubjecttotheprovisionsofsection22oftheInterpretation
Ordinance 21 of 1901 brought in by the Amendment Act No. 18 of 1972. The impact of section 22 is,whereanyenactmenthas
used in relation to any order, etc., made by any person, authority, etc., the expression "shall not be called in questionin
any court" or any other expression of similar import whether or not accompanied by the words"whetherbywayofwritor
otherwise", no court shall, in any proceeding and upon anygroundwhatsoever,havejurisdictiontopronounceuponthe
validity or legality of such order, etc. The proviso to that section specifies thatthisprovisiondoesnotexcludethe
exercise of the jurisdiction of the Supreme Court or the Court of Appeal under Article 140 in respect offollowingmatters-
"(a) where the order, etc., is ex facie not within the power conferred on such person, authority, etc.
(b) where such person or authority, etc., is bound to conform to the rules of natural justice or is obligedtocomplywith
any mandatory provision of law as a condition precedent to making of such order, etc., and the Supreme Court or the Courtof
Appeal is satisfied that there has been no such conformity or compliance".
The object of subsection 18A (2) of the SPCI Law, seems to me is to restrict to some extent the relaxation broughtaboutby
the proviso to section 22 of the Interpretation Ordinance to preclusive clause 9 (2) of the SPCI Law.IfImayparaphrase
subsection 18 A (2), that subsection precludes any court (which includes the Supreme Court) at any stage(a)fromstaying,
suspending or prohibiting the holding of anyproceedingbeforeanycommissionormakinganyorder,finding,report,
determination, ruling or recommendation by any commissionand (b) setting aside or varying any order, finding, etc., ofany
The first proviso to that subsection, however confers power on the Supreme Court, when an application standstransferredto
that court, to make any such order in the lawful exerciseofitsjurisdiction,onlyuponfinaldeterminationofthat
The important question of law we are now called upon to decide in this case is whethertheuntrammelledwritjurisdiction
conferred upon the Superior Courts by the Constitution could be lawfully restrictedinanymannerbytheprovisionsof
ordinary legislation contained in the Interpretation Ordinance and the SPCI Law. It appears that arguments on this aspectof
the matter were not presented to court on behalf of the petitioners either inBandaranaikev.Weeraratneandtwoothers
(supra) or in Weeraratne v. Hon. Percy Colin-Thome and three others(2).
In this connection our attention was drawn to Articles 168 (1) and 80 (3) of theConstitution.Byvirtueofthedeeming
provision contained in the SPCI Law Amendment Act No. 4 of 1978 that became existing Law at the timethe1978Constitution
came into operation. Article 168 (1) provides that unless Parliament otherwiseprovides,alllaws,inforceimmediately
before the commencement of the Constitution, shall, mutatis mutandis, and exceptasotherwiseexpresslyprovidedinthe
Constitution, continue in force. Article 80 (3) provides that where a Bill becomes law upon the certificateoftheSpeaker
being endorsed thereon, no court or tribunal shall inquire into, pronounce upon orinanymannercallinquestion,the
validity of such Act on any ground whatsoever.
An analogous question arose in Wickramabandu v. Herath and others(3) decided by a bench of five judges. H. A.G.deSilva,
J. at page 361 observed : "We are of the view that section 8 of the Public Security Ordinance and regulation 17(10),which
provides that such an order shall not be questioned in any court on any ground,donotaffectourjurisdiction.Firstly
existing written laws continue in force except as otherwiseexpresslyprovidedintheConstitution'(Article168(1)
Articles 17 and 126 confer jurisdiction on this court in respect of infringement of fundamental rights, and thisisexpress
provision which prevails over any written law to the contrary, including section 8 - whateverthepositionmayhavebeen
prior to the Constitution. Article 16 (1) saves the Public Security Ordinance (sinceitisexistinglaw)butonlyfrom
invalidation on the ground of inconsistency with fundamental rightsit does not validate any inconsistency with Articles17
and 126. Secondly, the power to make Emergency Regulations does not include the powertomakeregulationsoverridingthe
provisions of the Constitution (Article 155 (2)Regulation 17 (10) therefore cannotoverrideorinanywayaffectthe
jurisdiction of this court under Articles 17 or 126". See also Visuvalingam and others v. Liyanage andothers(4)Kulatunga,
J. in Hopman and others v. Minister of Lands and Land Development and others(5) at 247 expressed the view that powerderived
from Article 140 is not affected by section 24 of the Interpretation Ordinance. In Atapattu and othersv.People'sBank(6)
it was held that the constitutional provisions being the higher norm, must prevail over theordinarystatutoryprovisions.
The words 'subject to the provisions of the ConstitutioninArticle140wasnecessarytoavoidconflictswithother
provisions of the Constitution as Articles 18 (3), 120, 124, 125,and126(3).Thosewordsdonotrefertocontrary
provisions of written laws kept alive by Article 168 (1). Where the Constitution contemplatedthatitsprovisionsmaybe
restricted by other written laws as well, the phrase "subject to the provisions of theConstitutionandofanylaw"was
used, as in Article 138 (1).
We are here certainly not inquiring into, pronouncing upon, or in any manner calling in question, the validityoftheSPCI
Amendment Act No. 4 of 1978 as contemplated by Articles 80 (3). The Constitutional provision must prevailovernormallaw.
For the reasons stated above I hold that the jurisdiction conferred on this court by Article 140 is unfettered.
The phrase "according to law" in Article 140 was also usedinsection42oftheCourtsOrdinanceandwasjudicially
interpreted to mean that writs should be issued in the circumstances known to English Law. See Goonasinghe v.deKretser(7)
and K. Nakkuda Ali v. Jayaratne(8). We must assume that the phrase was used inArticle140inthesamesenseandthat
proposition admits of no controversy.
Before I part with this section of the judgment let me make a brief reference to the scope of judicialreview.Thegrounds
of judicial review were originally broadly classified as three-fold. The first groundis"illegality" thedecision-maker
must understand correctly the law that regulates his decision-making powerandmustgiveeffecttoit.Thesecondis
"irrationality" namely Wednesbury unreasonableness (Associated Provincial Picture Houses Ltd. v.WednesburyCorporation(9).
The third is "procedural impropriety". (Halsbury 4th bd., vol.11para60).Tothesegroundsafourthmaybeadded
"proportionality". See Lord Diplock in CCSU v. Minister for the Civil Service(10) at 951.
Amenability of the Commission's report to judicial review.
What attracts judicial review Lord Justice Atkin in The King v. Electricity CommissionersEx parte London ElectricityJoint
Committee Company (1920) Ltd. and others(11) said : "Whenever anybodyofpersonshavinglegalauthoritytodetermine
questions affecting the rights of subjects, and having the duty to act judicially, act in excessoftheirlegalauthority
they are subject to the controlling jurisdiction of the Kings Bench Division exercised in these writs".
This dicta was faithfully followed in some cases in Sri Lanka where judicial review wassoughtonreportsofcommissions
appointed under the Commissions of Inquiry Act, No. 17of1948.IndeMelv.deSilva(12)itwasstatedthatthe
commissioner was not expected to make any order in his reportaffectingthelegalrightsofthepetitioner thatwas
unnecessary in view of subsection 5 (1) of the Colombo Municipal Council Bribery Commission (Special Provisions) ActNo.32
of 1949, which stated that the Governor-General shall cause the finding, if adverse to the petitioner,tobepublishedin
the Gazetteand that on such publication, the petitioner was to be subjectedtothedisqualificationssetoutinthat
subsectionan adverse finding by the commissioner necessarily affected the legal rights of the petitioner. For thisreason,
the court was of the view that the respondent commissioner was a personhavinglegalauthoritytodetermineaquestion
affecting the rights of the petitioner and having a duty to act judicially. In Dias v. Abeywardene(13), itwasstatedthat
there was literally nothing in the Commissions of Inquiry Act, by reason of which such a determinationcancreate,affect,
or prejudice, the rights and obligations ofpersons.Itwasheldthatthecommissionerwasnotexercisingjudicial
functions. In Fernando v. Jayaratne(14) it was stated that the only power the commissioner had wastoinquireandmakea
report and embody therein his recommendations. He had no power of adjudication in the sense of passing an order which canbe
enforced proprio vigore, nor did he make judicial decision. The report of the commissioner had no binding forceitwasnot
a step in consequence of which legally enforceable rights might be created or extinguished. In the Supreme Court judgmentin
Re Ratnagopal(15a) - set aside by the PrivyCouncilinR.Ratnagopalv.TheAttorney-General(15b)onthegroundof
invalidity of the appointment of the commissioner - at page 422 it was stated that the purpose of the commission,whichwas
merely to inquire and report on certain matters, did not involve in the excercise of judicialorquasi-judicialfunctions,
or even of executive powerthat being so, any failure of the commission to duly carry out its purposeswasasubjectfor
complaint to the Governor-General and not to courts. Again in Silva and others v. Sadique and others(16)settingasidethe
judgment of the Court of Appeal in Mendis, Fowzie and others v. Goonawardena and Silva(17), it was held that a commissionof
inquiry established under the Commissions of Inquiry Act did not have the legal authoritytomakebindingdecisions any
penalty or consequence that followed a report of such a commission was by the action of some otherauthority,although,it
may be based on the findings contained in the reportthe report did not take effect proprio vigore.
Over the years frontiers of Lord Atkin's formula in Electricity Commissioners case have been advanced by judicialdecisions.
It is no longer the duty to act judicially or quasi-judicially which attracts reviewbutthe"dutytoactfairly".See
Selvarajan v. Race Relations Board(18) R. v. Secretary of State for Home Department, ex parteHosenball(19) andBreenv.
Amalgamated Engineering Union and others(20).
Wade and Forsyth (7th) edition at page 516 states: "Actingfairlyisaphraseofsuchwideimplicationthatitmay
ultimately extend beyond the sphere of procedure. It was suggested in one casethatitincludedadutyofactingwith
substantial fairness and consistency. [CHVT Ltd. v. Price Commission(21) at 179 - Scarman, LJ].ButwhenLordDenningMR
said much the same thing (that not only must there be a fair hearing but `the decision itself must be fairandreasonable')
the House of Lords repudiated his opinion. [Chief Constable of North Wales Police v. Evans(22) perhaps giving LordDenning's
words the wider meaning than he intended. In Daganayasi v. Minister of Immigration(23) Cooke, J.saidthat(fairnessneed
not be treated as confined to procedural matters . . . ] On the other hand, fairness may not necessarily comprisethewhole
domain of natural justice. Inspectors investigating the affairs of companies, who are subject to the duty to act fairly,are
not required to be free from bias. [R v. Secretary for Trade, ex parte Perestrello(24). Yet, the same phrasehasbeenused
to describe a duty to act honestly and without bias or caprice but withoutanyneedtodisclosethechargeorgivea
hearing. [McInnes v. Onslow-Fane(25). Judges seem to be using it in a variety of different situations,sothatithasno
precise meaning except when used as a synonym for natural justice".
The phrase "affecting the rights" in Lord Atkin's dicta has been liberalizedtomeannotrightsinthejurisprudential
sense. They need not be legally enforceable rightsthey may not be immediately enforceable rights but a decisioninmerely
a step as a result of which legally enforceable rights may be affected. See R. v. Liverpool Corporation, ex parte TaxiFleet
Operators, Association(26) and R v. Criminal Injuries CompensationBoard,exparteLain (27).LordDenning,MRinRe
Pergamon Press Ltd.(28) at 539 observed:
"It is true of course, that the inspectors are not a court oflawtheirproceedingsarenotjudicialproceedings see
Grosvenor and West End Railway Terminus Hotel Ltd (29). They are notevenquasijudicial,fortheydecidenothing they
determine nothing. They only investigate and report. They sit in private and are not entitled to admit thepublictotheir
meetingssee Hearts of Oak Assurance Company Ltd. v. AG(30). They do not even decide whether there is aprimafaciecase,
as was done in Wiseman v. Borneman(31).
But this should not lead us to minimise the significance of their task. They have tomakeareportwhichmayhavewide
repercussions. They may, if they think fit, make findings of fact which are very damaging to those whom they name.Theymay
accuse somethey may condemn othersthey may ruin reputations or careers. Their report may leadtojudicialproceedings.
It may expose persons to criminal prosecutions or to civil actions. it may bring about the winding-up of the company, andbe
used itself as material for the winding-upsee Re SBA Properties Ltd.(32) Even beforetheinspectorsmaketheirreport,
they may inform the Board of Trade of facts which tend to show that an offencehasbeencommitted-seeS.41ofthe
Companies Act 1967. When they do make their report, the board are bound to send a copy of it to the company andtheboard
may, in their discretion, publish it, if they think fit, to the public at large. Seeing that their work and their reportmay
lead to such consequences, I am clearly of opinion that the inspectors must act fairly. This is a duty which restsonthem,
as many other bodies, although are not judicial, nor quasi-judicial, but only administrative, seeR.v.GamingBoardfor
Great Britain, ex parte Benaim(33).
It is sufficient if the recommendation or decision of the authority has the effect of potentially jeopardising the rightsof
persons. The fact that the recommendations are not self-executory or the fact thatadiscretionofsomeotherauthority
interposes between the recommendation and any actual consequences to the personsaffected,doesnotnecessarilypreclude
judicial review. It is the nature, functions and powers of the commission thatwoulddeterminewhetherthecommissioners
have a duty to act fairly. See Russel v. Duke of Norfolk(34). For this purpose let me refer to some features ofthewarrant
and the provisions of the SPCI Law. The warrant granted to the commission requires it to inquire into certain aspects ofthe
assassination and four physical attacks on the lateLalithAthulathmudali,whichareallcriminalacts,andtomake
recommendations. The SPCI Law grants the commission power to determine and report whether any person is guilty of any actof
political victimization, misuse or abuse of power, corruption or fraudulant act, in relation to any court or tribunal orany
public body, or in relation to the administration of any law or administration of justice andinthosecircumstancesto
recommend whether such person should be made subject to civic disability (section 9 (1)). That recommendation canresultin
the Parliament taking steps to impose civic disability or expel that person from Parliament if he is a MP(Article81).It
has the power to summon witnesses and to receive evidence on oath or affirmation (section 7 (a) to(c)).Ithaspowerto
admit evidence which might be inadmissible in any civil or criminal proceedings (section 7 (d)). In relationtoanyperson
(1) who is specified in the warrant as a person whose conduct is the subject of inquiry or (2) who is in anywayimplicated
or concerned in the matter under inquiry or (3) who in the opinion of the commission, is in any way implicatedorconcerned
in the matter under inquiry, the commission has the power to so inform that person (section 16).Powerisgrantedtothe
commission to determine whether a person has committed an offence of contempt (section 12). This determination can lead toa
person being convicted of that offence by the Supreme Court. That conviction can result inthatpersonbeingdisqualified
for seven years from being an elector or a Member of Parliament (Articles 89 and 90 of the Constitution).Thecommissioners
are immune from civil and criminal proceedings (section 18). The commission canthuscometoseveraldeterminationsand
decisions which can have serious repercussions as pointed out by Lord Denning, MR in Pergamon case (supra). That is thevery
reason why the law casts on the commissioners a duty to act fairly.
In terms of subsection 2 (1) of the SPCI Law the legislature has granted thepowertothePresidenttoappointtothe
commission judges of a court not below the District Court. There must be some good reason for the legislature to pickjudges
from a long catalogue of several qualified professionals. The legislature has in all probability given its mind tothefact
that a judge will bring to bear in functioning as a commissioner, his legal training and judicial experience,andthatthe
combination of those attributes will make him not only to act, in the words of Burke, with "cold neutrality ofanimpartial
judge", but also fairly. There is no parallel provision in the Commission of Inquiries Act, No. 17 of 1948 to appointjudges
as commissioners, yet it is interesting to reflect upon how great judges of this court, injected into commissionproceedings
a degree of fairness, particularly before labelling apersonasacriminal.Theywerequiteconscious,beingpublic
functionaries on whom enormous powers were vested by law, of the fact that "it is excellent to have a giant'sstrength,but
it is tyrannous to use like a giant" (Measure for Measure). For instance in the Bandaranaike Assassination Commissionheaded
by Justice T. S. Fernando, the commissioners stated at page 36 of the report (Sessional Paper III - 1965)
"Section 7 of the Commissions of Inquiry Act, No. 17 of 1948, empowers our commission to admit thisconfessioninevidence
notwithstanding the provisions of the Evidence Ordinance. Although there is, therefore, no legal bartoouradmittingthe
confession, it is entirely a matter for us to decide what weight we should attach thereto. Theveryimportantquestionof
the weight to be attached to the evidence of this confession would not have risen before us had Somaramabeenavailableto
be called as a witness before us. Somarama was dead before our commission was appointed. The sentence of death pronouncedon
him at the trial had been carried out in 1962 some time after his application for special leave to appeal from thedismissal
by the Court of Criminal Appeal of his appeal against the conviction and sentencepassedintheSupremeCourthadbeen
refused by the Privy Council. We were therefore left without an opportunity of testing the truthfulness of that partofthe
confession of Somarama which tended to implicate Mr. Dickie deZoysaintheconspiracytokillMr.Bandaranaike,and
accordingly decided that we should not at our inquiry admit the confession as an item of evidence against Mr. de Zoysa."
In similar vein, Justice K. D. de Silva the one-man commissioner appointed to the Navy Commission inhisreport(sessional
paper VI 1963) at page 31 stated: "This is not a court proceeding.Thisinquirywasheldundertheprovisionsofthe
Commissions of Inquiry Act (cap. 393). The Evidence Ordinance (cap. 14) is not wholly applicable to it. Section 7 (d) ofthe
'notwithstanding any of the provisions of the Evidence Ordinance, to admit anyevidence,whetherwrittenororal,which
might be inadmissible in civil or criminal proceedings'. As I have stated earlier, this is mainly a fact-findingcommission.
The object is to ascertain the truth pertaining to relevant matters. Hearsay evidence is admissible at suchaninquiry.Of
course in assessing the value of a statement made by a person who is not available for cross-examination, greatcautionhas
to be exercised. The effective means of testing the statement of a witness iscross-examination.Inthecaseofhearsay
evidence that test is not available. Nevertheless, the statement need not be ruled outataninquirysuchasthis but
before placing any reliance on such a statement, the commissioner should be satisfied,beyondreasonabledoubt,thatthe
facts appearing in such a statement which are accepted, are true.Whetherornotsuchastatementiscorroboratedby
independent evidence is a matter of great importance".
Although one counsel appeared for both the 1st and the 2nd respondents at the hearingofthisapplication,twodifferent
counsel have filed written submissions on their behalf. I mentioned this fact only to refer to a submission madebycounsel
for the 1st respondent in his written submissions regarding our jurisdiction. That submission,incounsel'sownwordsis
this: "If a report or a recommendation is made, enabling the legislature to pass a statute or a resolution (that?) cannotbe
interpreted by the Supreme Court, as it amounts to an interference into the sovereignty ofthepeoplewhichisexercised
through the Parliament. On the other hand such an interference is directly against the basic rule ofinalienabilityofthe
sovereignty". I may say that we have not the least intention or desire to interfere with any statute oranyresolutionthe
Parliament may in its wisdom passnor to trespass on people's sovereignty. Weareonlyconcernedwiththevalidityof
matters affecting persons the commissioners determine as public functionaries. In ademocracy,thecommissionscannotbe
permitted to be a law unto themselves and operate outside the ambit of the Rule of Law. As observed by G. P. S. deSilvaCJ
in Premachandra v. Major Montague Jayawickrema and another(35)". . . at 102 Our Constitution andthesystemofgovernment
are founded on the Rule of Lawand to prevent the erosion of that foundation istheprimaryfunctionofanindependent
Section 18A of the SPCI Law itself contemplates the exercise of judicial reviewbytheSuperiorCourtsovercommissions
appointed under that law.
Findings by the Commission on the offence of contempt.
The SPCI Law draws a distinction between, on the one hand a witness (sec. 7) and on the other a person (a) whoisspecified
in the warrant (of the President) as a person whose conduct is the subject of inquiry or (b) who is in anywayimplicatedor
concerned in the matter under inquiry or (c) who is in the opinion of the commission, is in anywayimplicatedorconcerned
in the matter under inquiry (section 16). In the case of the former, the commission has the power tosummonhimtoattend
any meeting of the commission to give evidence, or to produce any document or other thing in his possessionandtoexamine
him as a witness or require him to produce any document or other thing inhispossession(subsection7(1)(c)).Every
person on whom a summons is served shall attend before the commission at the timeandplacementionedtherein,andgive
evidence (subsection 11 (3). In the case of the latter person (for convenience I may call person implicated), he shall beso
informed by the commission and after he was so informed, be entitled to be represented by one ormoreAttorneys-at-law,at
such state of inquiry as is relevant thereto. There is a third category ofpersonscontemplatedinsection16,whoare
neither summoned nor informed, that is persons who consider desirable that they shouldberepresentedatthecommission
such persons may be represented only with leave of the commission. The SPCI Law thus makes provision for persons whomaybe
affected by determinations and decisions of commissions to be heard and to be represented by lawyers.
So a witness is summoned to give evidence, whereas a person implicated is informed (but notsummoned)andpermittedlegal
representation, The law appears to be predicated upon that salutary principle tenetur se ipsum accusare - the law compelsno
man to be his own accuser or to give any testimony against himself. See also Karunatilleke v. Ameen(36).
If any person fails, in answer to the summons, appear before the commission, such a person is liable to be arrested andupon
his arrest be produced before the commission and the commission may order the remand of that person tothecustodyofthe
fiscal of the highest court exercising original jurisdiction within the judicial zone ofColombooranyotherconvenient
zone, or order his release upon such terms as a commission may determine (subsection 11(4)).Subsection12(1)provides
that a person on whom a summons is served, fails without cause, which in the opinion ofthecommissionisreasonable,to
appear before the commission at the time and place mentioned in the summons, such person shall be guilty oftheoffenceof
contempt against, or in disrespect of the commission. (The proviso to that subsection relates to othertypesofcontempt).
Where the commission determines that the person hascommittedanyoffenceofcontempt,thecommissionmaycauseits
secretary to transmit to the Supreme Court, a certificate setting out such determination (subsection 12 (2)).Subsection10
(1) provides that every offence of contempt committed against the authority of the commission, shallbepunishablebythe
Supreme Court, as though it were an offence of contempt committed against such court. In any proceedingsforpunishmentof
an offence of contempt "which the Supreme Court may think fit to take cognizance" as provided bysection10,anydocument
purporting to be a certificate (setting out the determination) shall (a) bereceivedinevidencewithoutfurtherproof,
unless contrary is proved, and (b) be conclusive evidence that the determination set out in the certificate was made andthe
facts stated in the determination (subsection 12 (3)).
I may straight away mention here that the Supreme Court does not act as a rubber stampfirst, itmaytakecognizance(or
may not), second, it will inquire into whether an offence of contempt wascommitted,beforeitproceedstoconvictand
impose a sentence. (See Re U. N. Wijetunga(37) - contempt in respect of acommissionappointedundertheCommissionsof
There is an added consequence of a conviction for contempt, whatever penalty the SupremeCourtmayimpose.Thatis,the
person so convicted, in terms of Article 89 of the Constitution become, disqualified from being and elector, if aperiodof
seven years has not elapsed since "the date of his being convicted". IntermsofArticles90and91,ifapersonis
disqualified to be an elector he is disqualified to be elected as a Member of Parliament.
Let me now come to the facts leading to the petitioner being found guilty of contemptofthecommission.On12thApril,
1996, a report of evidence given by an unnamed witness before the commission, that the petitioner was connected withalleged
criminal activities of a person known as "Sotti Upali" and that some arms, etc., were foundhiddeninthegardenofthe
petitioner's premises, was published in the Daily News. On 15th April, 1996, the petitioner wrote tothesecretaryofthe
commission, refuting those allegations. He wrote, "I write to inform the commission that the evidence is absolutely false.I
am prepared to appear before the commission and testify that the evidence of this witness, so far as Iamconcerned,isa
total fabrication". Referring to this letter the commission in its report at page 207 stated :
"As far as the commission is concerned that item referred to by Cooray may have been mischievouslyreported.Therewasin
fact no such evidence on record or according to commissioners' notes. The commission therefore had no reasontocommunicate
with Mr Cooray on the subject. The proceedings would have been available for scrutiny. Therefore his referencemerelytoa
newspaper report and not to the proceedings is both suspicious and suggestive".
On 1st May, 1996, the petitioner left the Island and returned on 18th June, 96. On 26th June, 96, the petitioner left tothe
USA. On 12th July, 1996, by notice dated 12th July, 1996 sent to the petitioner'sresidence,thecommissioninformedthe
petitioner, that it was of opinion that the petitioner was a person whose conduct should be subject of inquiryandthathe
was entitled to legal representation. The petitioner was not required to appearbeforethecommission.The1stand2nd
respondents have admitted in their affidavits that this notice was issued in terms of section 16 oftheSPCILaw.On2nd
August, 1996, when the petitioner was still out of the Island, the secretary of the commission by its order wroteletterP3
to the petitioner, addressed to his residence, stating that :
"I refer to your letter dated 15. 4. 96 requesting me to afford you an opportunity to appear before thecommissiontogive
Please attend the office of the commission on Friday 9th August so that your statement may be recorded in the 1st instance".
This letter was written despite the fact that "there was no such evidenceonrecordoraccordingtothecommissioners'
notes". But that is not the issuewas P3 a summons? There was no summons requiring the petitioner asawitnesstoattend
before the commission and to give evidence. Learned DSG was unable to assist us with reference to any law whichenabledthe
commission to require a person to attend the office of the commission in order to record a statementpreparatorytogiving
evidence. Even if that was possible, such a communication was no summons.
On 8th August, 1996, the petitioner's son replied to P3 to say that it was received on the 7th August and it would behanded
over to the petitioner on his return to the Island. On 19th December,1996,thecommissionersgotthedocumentP5(in
Sinhala) and P5A (in English) pasted on the front door of the petitioner's residence, while the petitionerwasyetoutof
the Island. Material parts of P5A reads :-
"Whereas the commission has written to you (by) registered post that you are a person whose conduct should be the subjectof
inquiry in respect of matters referred to in the warrant issued by Her Excellency the PresidentofSriLanka,towit,a
conspiracy to assassinate or aid and abet the assassination of the late Lalith Athulathmudali and other connected matterand
informing you that you are entitled to representation by Attorneys-at-law.
Whereas the said commission further request you by letter of 2. 8. 1996 to attend the commission office on 9. 8. 1996 to
make a statement. Whereas your son Mr. Ajith Cooray has informed the commission that the said letter of 2. 8. 1996 written
to you was received at your residence No. 226, Lake Drive, Colombo 8.
And, whereas your son Mr. Ajith Cooray has informed the commission that you are abroad.
And, whereas, the National Intelligence Bureau has informed the commission that you left Sri Lanka on 24. 6. 1996withyour
wife Srimathi and your son B. M. Prasanna Cooray for one month's vacation to Hongkong.
And, whereas, statements made to the commission by your son Mr. Ajith Cooray show that you have beeninWashingtoninthe
United States of America and that you are moving from place to place in India where he met you in New Delhi.
And, whereas, the evidence so far pleas (placed) before the Commission disclosed your complicity in the murderofthelate
These are therefore to command you to be present and appear in person on 9. 1. 1997 at 11 am before the commission".
This document can neither be construed as a summons to a witness "to attend any meeting of the commission togiveevidence"
(subsections 7 (1) (c) and 11 (3)), nor a notice to a person implicated (section 9) where nopersonalattendancecouldbe
required. Was the petitioner told why he was commanded to appear? Certainly he was notbut the commission hasprovidedthe
answer in its report at page 209 :
"We would have liked to have Mr. Cooray's views on the sacking of Athulathmudali from the UNP in August, 1991 andhisviews
on the so-called impeachment motion under Article 38 (1) of the Constitution, whichwasneverinfactpresentedtothe
The commission would also have liked to question Sirisena Cooray on the running of the Housing Ministry,theallocationof
houses and flats to public officers, the source of the money to run Gam Udawas, whyhetransferredhispistolwhichwas
personal to him to Sothi Upali, about his dealings with the Mahaweli Marine Agency, the complaints of the public that byhis
political patronage Sothi Upali received protection from police officers, the state of his assets and finances abroad andin
Sri Lanka since 1976. These are some of the matters he could have assisted the commission on. The commission would alsohave
questioned him about the Terms of Reference in the Warrant and his views on the testimony of witnesses who tend toimplicate
him in the conspiracy to assassinate Athulathmudali. But it was not to be. He did not even answer the summons andkeptaway
from the commission altogether. Instead he tried to introduce Attorney-at-law into these proceedings to watchhisinterests
whereas he was required to be present in person".
The commissioners quite erroneously overlooked the fact that under the law the petitioner had the right of representationby
lawyersit is not a cheap "introduction" but a cherished right recognized through out the civilizedworld.Mostofthose
matters mentioned by the commissioners clearly fell outside the ambit of the warrant.Tocomebacktothenarrativeof
events, on the 3rd January, 1997, in response to P5A, petitioner's attorney-at-law, sent to thesecretaryofcommissiona
letter informing of the inability of the petitioner's retained counsel to appear before the commissionon9thJanuaryand
seeking another date. On the 9th Mr. Anil Silva attorney-at-law appeared before the commission on behalfofthepetitioner
and moved for a date to enable senior counsel to appear for him. That application was refused on the ground that lawyershad
no standing as the petitioner had failed to appear on summons. The commission thereafter proceeded on the same daytoissue
a warrant of arrest of the petitioner. I may mention here that for the reasons given by me earlier, the summonswasflawed
and therefore the warrant too was flawed.
On the 18th of January, 97, the commission purported to make a determination that the petitioner was guiltyoftheoffence
of contempt in terms of section 12 (1) of the SPCI Law. On hearing of the refusal to permit lawyers toappearforhimand
the issue of the warrant against him the petitioner, who was, in Australia at that time submittedthroughhisattorney-at-
law, to the commission on 14th February, 97, an affidavit sworn on 29. 1. 97 in Australia explaining,amongothermatters,
why he chose to be away from the Island. The contents of that affidavit are immaterial for the decision ofthisapplication
in view of our finding that the so-called summons has no validity in law. The commissioners expressed theirsuspicionseven
on the stamp affixed to the petitioner's affidavit, though they had a statement from the Inland RevenueDepartmentthatit
was properly issued by that department on 13.2.97.commissionersobserved:"Thestampontheaffidavitisalso
controversial. We have a statement from the postal authorities that the stamp has long been invalid.Itisancient"(page
The commission in its report, thereafter, proceeded to makeaseriesofastoundingpropositionsoflawregardingits
determination on contempt. It is right to say that the commission is not required by law to transmit a determination madeon
contempt to the Supreme Court. The commission says:"thereisagoodreasonforthisdiscretionremainingwiththe
commission. There is a legal principle that an offender should not be punished twice for the same offence"(page210).The
commission has no punitive power whatsoever. Its determination will remain a "damp squib" if the Supreme Court does nottake
cognizance of the offence. The commission then went ontosay:"CertainConstitutionalprovisionsnowtakeover.The
commission now considers certain provisions in chapter 14 of the Constitution. ThechapterdealswithTheFranchiseand
Elections' (page 211). Then the commission having cited portions of Articles 89-91relatingtodisqualificationsfrom
being an elector and being elected as a MP, on being convicted of an offence of contempt, stated : -"Thisdisqualification
applies to Mr. Cooray as he was convicted by this commission for avoidingthesummonswithoutreasonablecause.Inthe
result Mr. Sirisena Cooray is disqualified from being elected to Parliament for a period of 7 yearsfromthedateofhis
conviction . . . This result the commission considers to be in the nature of a punishment". (page 212).
The commission has no power to "convict" any person of any offence and that is a power vested exclusivelywiththeregular
courts [see Article 13 (3) of the Constitution]. If legal representation was permitted on behalf of the petitioner,probably
even the most junior lawyer would not have taken much time to convince the commission that ithadnopowertoconvicta
person of an offence. The commissioners could have entertained doubts in their own minds as to their competence to convicta
person and that is why probably they made a qualified recommendation in saying "we recommendthathebemadesubjectto
civil disability if our view of the consequences on the finding of contempt of the commission is unacceptable". That viewis
unlawful and unacceptable in law.
Decision that the petitioner was directly concerned in and was a member of the conspiracy to assassinateMr.Athulathmudali
and other decisions leading to the recommendation that the petitioner be made subject to civic disability.
The Penal Code states that a person abets doing of a thing firstly, ifheinstigatesanypersontodothatthing or
secondly, if he engages in any conspiracy for the doing of that thingor thirdly, if he intentionally aids, byanyactor
illegal omission, the doing of that thing (section 100). The natural meaningof"toaid"istogivehelp,supportor
assistance toand of "to abet" is to incite,instigateorencourage(SmithandHogan8thedition).Theoffenceof
conspiracy is committed, in terms of the Penal Code, when two or more persons agree to commit or abetortoacttogether,
with a common purpose for or in committing orabettinganoffence,whetherwithorwithoutanypreviousconcertor
deliberation (section 113A). In hiswrittensubmissions,learnedcounselforthe1strespondentsubmittedthatthe
ingredients to prove "abetment" and "conspiracy" at a commission appointed under the SPCI Lawaredifferentfromwhatis
required under the Penal Codethey are less in gravitythe reason for this difference, he stated, was that aviolationof
the penal laws entail in penal consequenceswhereas if the recommendation of the commission is accepted by thelegislature,
it will impose only civic disability on the petitionercivic disability isnotapunishment.Werejectthisdangerous
heresy for two reasons. Firstly, norms of criminal culpability should becertainandtheycannottakedifferentshades
depending on who applies them. Secondly, learned counsel's submission 'is based on the belief, (like thescantrespectthe
commissioners had to the right of representation by lawyers) that the right to vote isaninferiorkindofrightofno
consequence and therefore that a person could be deprived of that right less seriously.Article21(1)oftheUniversal
Declaration of Human Rights states : "Everyone has the right to take part in thegovernmentofhiscountry,directlyor
through freely chosen representatives". In Bandaranaike v. de Alwis(38) Samarakoon, CJ called that right "themostprecious
of them all". That right should not be lightly interfered with.
The petitioner in his petition stated that the reasons for the commissioners conclusion regardinghiscomplicitywiththe
assassination of Mr. Athulathmudali are set out at page, 213 and 214 of part 1 of the report (para 21). This was admittedby
the 1st and 2nd respondents in their affidavits (vide para 19 of each respondent's affidavit). I mentioned this matterhere,
because when we inquired from the learned counsel for the commissioners, inthecourseofthehearingreasonsforthe
conclusions reached by them, he did submit that some more reasons may haveappearedintheproceedings,whichwerenot
stated in the report.
I shall now set out those reasons verbatim from the report, stated after the pointatwhichthecommissionpurportedto
"convict" the petitioner of contempt.
The question is, why is he avoiding being questioned respect of the termsofreferenceandotherrelevantmatters?His
conduct is not consistent with his innocence. Quite apartfromthelegalconsequencesthathavefollowedhisfoolish
conduct, the evidence before us concerning him shows :
(a) that President Premadasa found him a loyal ally, one who co-operates with and supports and helps him.
(b) President Premadasa- had strong motive to eliminate Athulathmudali, - a strong political opponent, one whohasinsulted
him by the-so-called impeachment motion, one whom he had sacked from theUNP,onewhohasseverelycriticisedhisco-
operation with the enemy, the LTTE, by supplying them with modem weaponscash and handcuffs to beusedasinstrumentsof
torture, one who was seeking to expose him before international community. Mr. Sirisena Cooray sided with Premadasa-onall
(c) being badly defeated by Athulathmudali in the number of preferential votes cast in the ColombodistrictwhichwasMr.
Sirsena Cooray's stronghold, Mr. Sirisena CoorayasgeneralsecretaryoftheUNPmovestooustAthulathmudalifrom
representing the Colombo district and send him to Kalutara district. That was the evidence. Mr. Cooraywouldhavehisown
motives to get Athulathmudali out of the way.
(d) strong political linksareshownamongMessrs.Premadasa,B.S.Cooray,WeerasingheMallimarachchiandU.L.
Seneviratne. Mr. Seneviratne is still not at national level. The other three were Ministers, leaders and his masters
(e) there is reliable evidence which we accept, coming from several sources that Mr. U. L. Seneviratne played a keyrolein
the assassination that took place in Kirulapone on 23. 04. 93he has sought to contract a person to kill Athulathmudali he
has requested bombs to be made and supplied all the materials for same and they were in fact made and given to him.Allthe
while the assassin Janaka alias Sudumahattaya waspresentanditwasU.L.Seneviratne'sownflatwithinPresident
Premadasa's premises named "Sucharitha" in Keselwatta.
U. L. Seneviratne had earlier organised the physical attack on Athulathmudali at the Fort Railway Station on August7,1992
and the raiding party which formed an unlawful assembly had started off from his flatatSucharitha.Hetoowaspresent
during the assault. But this shows the level of his organisational skill - anobviousfrontalattackquiteopenlydone,
without guile with no effort made to disguise the operation or make identification, difficult. But was such a man capableof
all the elaborate planning and all the lies and deception that has unfolded? Deception has beenaparamountconsideration!
We think not.
On the contrary, that direction has to come from elsewhere, from people withexceptionalorganizationskills,capableof
having the support of a large number of public officials such as policemen to make such an event (ie)an assassination ofa
political leader in with a chance, a credible winning candidate, possible and to supply cover-up.Hereweseejustthose
things. The police withdraw security. After the event police tamper with evidence and continue to present a false pictureto
the public. Another person is killed and falsely presented as the assassin. Without this help the event is not possible.And
to what length they have gone to falsly implicate the LTTE.
To get the co-operation of all these public officials needs someone at a high politicallevelwhowouldprotectthemby
using his political powers, with money, with newspaper publicity, with weapons, etc. Seneviratne, the field managerofthis
enterprise using the underworld characters, thugs, drug dealers could not have got the co-operation ofallthesepolicemen
from different police stations and authorities. But President Premadasa and Mr. Sirisena Cooraycouldhave.Theyhadthe
political clout to secure this assistance to get policemen to use their lawful powers in an improper unlawful manner. Wesee
this over and over again, physical attacks and a police cover-up.
There is evidence of an admission by U. L. Seneviratne whilst in remand jail, where his company wouldbepersonssimilarly
placed, that it was Sirisena Cooray and Weerasinghe Mallimarachchi who wanted Athulathmudali destroyed as he was apolitical
threat, and therefore U. L. Seneviratne spent money to get it done. What he did is mentioned (supra). We haveevidencethat
the assassin Sudumahattaya was a friend and bodyguard of minister Mallimarachchi. WealsohaveevidencethatMr.Ranjit
Upali de Silva alias "Sothti Upali was bodyguard to Mr.SirisenaCoorayandworkedcloselywithhimparticipatingin
election campaigns, turfing Gam Udawas, given contracts by Cooray to run canteens at these shows, etc., and generalsecurity
supervision. "Sothti Upali it was who held Ragunathan in captivity and had him killed and the scene where his bodylaymade
up to simulate a case of suicide. These are compelling and irresistable inferences we draw from established circumstances".
This is followed by the conclusion reached by the commission in relation to the petitioner which I have referred to in full
elsewhere in this judgment. Those conclusions are that the petitioner -
(1) was directly concerned in and was a member of the conspiracytoassassinateMr.LalithAthulathmudaliwhosemurder
amounts to political victimisation
(2) procured police officers to assist, which amounts to corruption
(3) made up a false scenario in respect of Ragunathan's deatha fraudulant act to subvert the course of justice.
Besides the double hearsay evidence of the prisoner there was only suspicion lurking throughout in thecommissioners'minds
as evidenced from the report that the petitioner "could have" done various acts. The technical rulesofevidencecertainly
are not applicable to the proceeding of the commission. But what probative value did the evidence of the prisonerwhospoke
about a confession of Seneviratne and involvement of the petitioner carry? Principlesofnaturaljusticerequirethata
tribunal's decisions are based on some evidence of probative value. (See Mahon v.AirNewZealand(39)andR.v.Deputy
Industrial Injuries Cmr, ex p Moore(40). About Seneviratne the commissioners said : "U. L. Seneviratnedidnotrespondin
anyway to the notice. He was not represented by an attorney-at-law. Hedidnotgiveevidenceorwishtocross-examine
anyone. He kept silent" (page 199). The commission did not want to examine himasawitness.Regardingapersoncalled
Somaratne who did respond to the section 16 notice, the commissioners said : "He kept silent ashewasentitledto".The
same silence, the petitioner was not entitled to and the commissioners evinced a great anxiety to examine him asawitness.
His lawyers were refused audience on the ground that the petitioner was absent. Thecommissionershavenotbeenableto
specify any act of commission or omission on the part of the petitioner to come to their conclusions. As Baconhasobserved
: "Suspicions amongst thoughts are like bats amongst birds, they ever fly by twilight. Certainly these aretoberepressed
or at least well-guardedfor they cloud the mind . . ."
We hold that the determination and recommendations are flawed in the first place, as being unreasonable in the sense that
the commissioners did not call their own attention to the matters which they were bound to consider (see Associated
Provincial Picture Houses Ltd. v. Wednesbury Corporation (supra). Secondly, as they are not based on evidence of any
probative value (see Mahon v. Air New Zealand (supra). Thirdly, because those determinations and recommendations have been
reached without giving the petitioner a right of hearing through his lawyers, in breach of the principles of natural justice
and in breach of the provisions of section 16 of the SPCI Law.
For the reasons given above we issue a mandate in the nature of a writ of certiorari setting aside and quashing -
(1) the determination of the commission that the petitioner is guilty of the offence of contempt against or in disrespectof
the commission in terms of subsection 12 (1) of the SPCI Law
(2) the finding and determination that the petitioner is disqualified under Article 89 oftheConstitutionfrombeingan
elector and under Article 91 from being elected as a Member of Parliament
(3) the finding and determination that the petitioner was directly concerned and a member of theconspiracytoassassinate
the late Mr. Athulathmudali, procurement of police officers, and making upafalsescenarioinrespectofRagunathan's
(4) the recommendation that the petitioner be made subject to civic disability if the commission's view oftheconsequences
of (1) above are unacceptable, on the basis of their finding as at (3) above.
We make no order as to costs.
GUNAWARDANA, J. - I agree.
WEERASEKERA, J. - I agree.
Application allowed - certiorari issued.