Legal Services and Laws of Sri Lanka


SLR-2003 Vol.1-P331

SLR - 2003 Vol.1, Page No - 331

AIR VICE MARSHALL ELMO PERERA
v.
LIYANAGE AND OTHERS
COURT OF APPEAL
JAYASINGHE, J. (P/CA) AND
EDIRISURIYA, J.
CA 850/98
OCTOBER 29 AND
NOVEMBER 23, 2001 AND
FEBRUARY 06,
MARCH 7, AND
APRIL 4, 2002

Constitution, Articles 30(1) and 35 -Air Force Act, No. 41 of 1949 - Inquirer appointed to determine whether petitioner isa
fit and proper person to hold a Commission by HE the President - Legality of appointment - Does certiorari lie ?-Pleasure
principle.

The Secretary to the President informed the petitioner (by P1), that Her ExcellencythePresidenthasappointedthe1st
respondent to inquire into and report on matters set out in P1, in order to determine whether the petitionerisafitand
proper person to hold a Commission in the Sri Lanka Air Force. The petitioner contended before the 1strespondentthathis
appointment is an act of nullity as he could not be legally appointed to inquire into and report on matters setoutinP1.
The 1st respondent overruled the preliminary objection. Thepetitionersoughttoquashthesaidorderoverrulingthe
objection.

Held :
(1) The petitioner cannot attack P1 on the basis that it is ultra vires for the reason that the President was not obligedto
institute a fact finding inquiry because it was open to the President to terminate the servicesofthepetitioneronthe
basis that the petitioner holds office at the pleasure of the President.
(2) The 1st respondent was merely carrying out a fact finding inquiry and the findings or recommendations oftherespondent
would not be binding on the President. The essential requirement for the grant ofcertiorariisthatrightsofsubjects
should be affected.
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(3) Writ would not lie if the final relief sought is a futile remedy.
APPLICATION for a writ of certiorari.
Cases referred to :
1.The Attorney-General v Kodeswaran - 70 NLR 121
2.Silver v Louiseville N.R. Co. Ltd. 213 US Reports at 191
3.Rex v Electricity Commissioner - (1924) 1 KB 171
4.Perera v Attorney General - (1985) 1 Sri LR 156
5.Ridge v Baldwin - (1962) 2 All ER 66
6.Dias v Abeywardena - 68 NLR 409
7.Bandara v Premachandra - (1994) 1 Sri LR 301
8.Bandula v Almeida - (1995) 1 Sri LR 309
9.Admiral V.K. Dissanayake v Chandrananda de Silva - (2000) 1 Sri LR 234
10.Liyanage v Chandrananda de Silva - (2000) 1 Sri LR 21
11.Silva v Shirani Bandaranayake - (1997) Sri LR 92
12.Victor Ivan v Hon. Sarath N Silva and others - (1998) L Sri LR 340
13.Karunathilaka v Dissanayake - (1988) Sri LR 37
14.Vishvalingam v Liyanage - (1988) Sri LR 203
15.P.S. Bus Co v Mendis, Secretary of Ceylon Transport Boards NLR 491
Mahinda Ralapanawa for petitioner.
Saleem Marsoof, P.C., Additional Solicitor General with M. R. Ameen, State
Counsel for respondents.

Cur. adv. vult

September 5, 2002
JAYASINGHE, J. (P/CA)
This is an application for a writ of certiorari to quash "P1" and "P10", the findings by the 1st Respondent.

Petitioner states that the Secretary to the President by his letter "P1" dated 27,03.1998 informed the petitionerthatHer
Excellency the President Mrs. Chandrika Bandaranaike Kumaratunga by virtue of the powers vested in her in termsofArticle
30 (1) of the Constitution and Section 10 of the Air Force Act,
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No. 41 of 1949 has appointed Mr. I.M. Liyanage former High Court Judge to inquire into and report on matters set out "P1" in
order to determine whether the petitioner is a fit and proper person to hold a Commission in the Sri Lanka Air Force, viz,
(1). Whether the petitioner did during the period 02.08.1996 to 11.07.1997 grant preferential treatmenttoanunregistered
supplier named Mohamed Farook Salih while failing to acknowledge the offers made by other suppliers intheyears1996and
1997 and more specifically the offers made by Wing Commander Bandula Tennakone and Mohan Kariyawasam.
(2). Whether the petitioner did on or about the months of March and April 1997 and in thecourseofthesametransaction
knowingly reveal to an unregistered supplier named Mohamed Farook Salihconfidentialinformationregardingimmediateand
future requirements of attack helicopter gun-ships for the Sri Lanka Air Force.

The inquiry commenced on 14.05.1998 and after the 1st witness H.H.M.R. Premaratna had testified the petitioner commencedhis
cross examination and on the next date informed the 1st respondent that the petitioner is not competent to proceedwiththe
inquiry and sought to retain counsel. This application was allowed. Whenthemattercameupforinquiryon14.08.1998
counsel for the petitioner took up a preliminary objection that the 1st respondent could notbelegallyappointedbythe
appointing authority and for that reason the appointment of the 1st respondent is an act ofnullityandthereforewithout
jurisdiction. The 1st respondent after hearing submissions held that from the termsofreferenceitwasclearthatthe
appointment of the 1st respondent is fact finding in natureandthattheletterofappointmentdoesnotrequirethe
Commissioner to determine whether the petitioner is a fit and proper person to hold a Commission in the Sri Lanka AirForce,
but inquire and report to determine the suitability/eligibility of the petitioner. That the 1st respondent wasnotrequired
to meet out punishment as contended but merely empowered to ascertain the existence or non-existence of the factualposition
itemized under (1) and (2) of "P1".
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The 1st respondent overruled the objection.
The present application is to set aside "P1" and "P10" the findings of the 1st respondent. When this matter was taken upfor
hearing Mr. Saleem Marsoof, P.C., Additional Solicitor General took up two preliminary objections
(i). That certiorari is not available to the petitioner in the circumstances of this case.
(ii). That in any event, this application cannot be maintained in view of Article 35 of the Constitution.
The learned Additional Solicitor General submitted that it would be unnecessary to determine whether this application canbe
maintained in view of Article 35 of the Constitution if this application can be disposed of in the light ofthepreliminary
objection that writ of certiorari is not available to the petitionerinthecircumstancesofthiscase.Hereliedon
Attorney -General v. Kodeswarari(1) where the Supreme Court cited with approval the dicta in Silver v. LouisevilleN.R.Co.
Ltd.(2) where it was stated that
"if a case could be decided on one of two grounds, one involvingaconstitutionalquestionandtheotherofstatutory
construction or general law, the court will decide only the latter".
This argument was necessitated by the fact that the2ndobjectionquestionedthemaintainabilityofthepetitioner's
application in view of Article 35 of the Constitution which was a constitutional issue, jurisdiction being with theSupreme
Court.
The petitioner came before this Court alleging "P1" is illegal and that it is an act done in excess of jurisdiction which is
also ultra vires and mala fide in a broader sense.
It is the submission of learned Additional Solicitor General that writ does not lie forthereasonthatthefindingor
findings the 1st respondent may arrive at upon the conclusion of the inquiry would not be amenabletocertiorariasthey
would not be a determination affecting rights of persons within the formula enunciated
335
by Lord Atkin in Rex v. Electricity Commissioner (3) and that the petitioner is not entitled to prerogative relief in view
of his conduct in particular his acquiescence and the premature nature of the application for interventionbythisCourt.
The Additional Solicitor General then submitted that in terms of section 10 of the Air Force Act the petitioner holds office
during the pleasure of the President. G.P.S. de Silva, J. in Perera v. Attorney General (4) quoted with approvalthedicta
of Lord Reid in Ridge v. Baldwin (5)
"................. that an officer holding office during pleasure has no right to be heard before heisdismissedandthe
reason is clear as a person having the power of dismissal need not have anything against the officer, he neednotgiveany
reason. I fully accept that where office is simply held at pleasure the person having the power of dismissal cannot bebound
to disclose the reasons. No doubt he would in many cases tell theofficerandhearhisexplanationbeforedecidingto
dismiss him".

Relying on Ridge v. Baldwin (supra) the learnedAdditionalSolicitorGeneralarguedvigorouslythatthepetitioner's
commission may be withdrawn by the President without an inquiry and without adducing any reasons. He further submittedthat
the petitioner cannot complain and writ would not lie if the President grants him an opportunity to explain his conduct.He
submitted that the findings the 1st respondent would reach at the conclusion of theinquirywouldnotbedeterminations
affecting the rights of any person, but would rather be conclusions of a fact finding nature on matters set out in "PI". The
Additional Solicitor General further submitted thatfortheprerogativewritofcertioraritobeavailablecertain
requirements will have to be satisfied as explained by Lord Atkin in Rexv. Electricity Commissioner (supra).
"Whenever any body of persons having legal authority to determine questions affecting rights of subjects and having theduty
to act judicially, act in excess of their legal authority they are subject tothecontrollingjurisdictionoftheKings
Bench Division".
336
Mr. Marsoof argued that an essential requirement for the grant of certiorari \n terms of the above formula is that rightsof
subjects should be affected. That the 1st respondent was merely carrying out a fact finding inquiry and that the findingsor
recommendations of the 1st Respondent would not be binding on thePresident.InDiasv.Abeywardenaitwasheldthat
certiorari will be refused against a body exercising a merely advisory deliberative or non bindingrecommendatorypoweras
such a body is distinct from a tribunal having legal authority for jurisdiction to determine rights of subjects.

Mr. Ralapanawa, counsel for the petitioner submitted that the circumstances of this case falls within the ambitofRexv.
Electricity Commissioner (supra) in that certiorari would issue to any body of persons having legal authoritytodetermine
questions affecting rights of subjects and having a duty to act judicially.HearguedthatinthefinalanalysisHer
Excellency the President may or may not determine whether the petitioner is a fit and proper person to hold a commission and
he submitted that it is plain on authorities "the Tribunal need not be one whose determinations giverisetoanylegally
enforceable right or liability. Its determinations may be subject to certiorari notwithstanding it is purely a stepinthe
process...." as per Lord Diplock. His submission is that "P1" is a step in the process.

Counsel for the petitioner submitted that he has come before this Court not to quash the findings which the1strespondent
may arrive at and therefore the application is not against the conclusions which the 1st respondent may arrive at afterthe
inquiry. The petitioner states that the application before Court is to quash by way of writ findings or order which the1st
respondent has made holding that he has jurisdiction to hold an inquiry vide "P1" and to quash "P1" issued under the hand of
the 2nd respondent as its issuance is bad in law.
337
It is in my view however the petitioner cannot attack "P1" on the basis that it is ultra vires forthereasonthatthe
President was not obliged to institute a fact finding inquiry because it was open to the President to terminate the services
of the petitioner on the basis that the petitioner holds office at the pleasure of the President. The petitionercannotbe
heard to complain as a beneficiary of a concession which has been allowed to him. It is also necessary to note at this point
that the petitioner assumes that there might be a finding against him by the 1st respondent. That may or may not be so. Once
the 1st respondent comes to a finding in terms of "P1" the President may make a determination whether the petitioner isa
fit and proper person to hold a commission. Here again the President may or may not make that determination. To thatextent
the learned Additional Solicitor General's submission that there is no determination affecting rights of persons withinthe
formula enunciated by Lord Atkin in Rex vs. Electricity Commissioner is not unfounded. I accordingly hold that certiorari is
not available to the petitioner in the circumstances of this case.

Learned counsel for the petitioner also submitted that the pleasure principle as found in section 10 of the Air Force Actis
not unfettered in that the President does not enjoy unlimited power. Immunity of the President in termsofArticle35and
the pleasure principle as found in Article 55(1) are two distinct issues. The learned counsel for thepetitionersoughtto
attack the immunity ofthe President on the basis that it is not unfettered. However Bandara vs. Premachchandrai (7)relied
upon by him tosupport his contention that the immunity of the President is not unlimited in fact dealtwiththepleasure
principle in Article 55(1). To that extent Bandara vs. Premachandra (supra) relied upon by counsel has no application.Court
held that the pleasure principle in Article 55(1) Of the Constitution is subject to the equality provision of Article 12and
mandates fairness and excludes arbitrariness. Clearlythatdoesnotgiveexpressiontothepowersexercisedbythe
President. Bandula v. Almeida (8) relied upon by counsel for the petitioner sought to quash the order made bythePresident
under section 2 of the Urban Development Authority (Special Provisions) Law. Herethechallengewasinrespectofacts
covered by Article 35(3) of the Constitution that thePresident was acting in a capacity qua
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Minister and the findings have no application to the issue before Court. In Rear Admiral V.K. Dissanayakav.Chandrananda
de Silva(9) the petitioner sought relief under Article12(1)oftheConstitutionwithregardtothefailureofthe
respondents to submit his redress of grievance to thePresident.Clearlythepetitionercannotdrawsupportfromthe
reasoning of this case.
In Liyanage v. Chandrananda de S/7va (10) it was held thatthefailuretoimplementtherecommendationsoftheArmy
Commander was violative of Article 12 (1) of the Constitution. However when the Secretary submittedtherecommendationof
the Army Commander to the President, the President refused to act and the Court was unable to grant any further relief.
In Silva v. Shirani Bandaranayakd (11) Court held that the President has sole discretion of appointing Supreme Court Judges
the power is discretionary and not absolute. It is neither untrammeled or unrestrained andoughttobeexercisedwithin
limits. The counsel sought to rely on this phrase to demonstrate, that the pleasure principle is diluted. Howeverwhatthe
Supreme Court observed was that the limits are in - built in Article 107. The Supreme Court observed that ifforinstance,
the President were to appoint a person who, it is later found, had passed the age of retirement laid down in Article 107(5),
undoubtedly the appointment would be flawed and that in such a situation Article 125 would then require Court in appropriate
proceedings to exercise its judicial power in order todeterminethosequestions.TheSupremeCourthoweverdidnot
elaborate. Obviously what was in contemplation of the Supreme Court was asituationwheretheappointmentwaspatently
irregular. In Victor Ivan v. Hon. Sarath N. Silva & Otherd Wadugodapitiya. J. held
"................ the Constitution itself gives the President immunity under Article 35(1) thereof and thereforeshecannot
be brought before Court to answer for her actions"
"................. under the law as it stands we shall never know why and wherefore of this appointment because it is only
the President herself who knows the answer to that question" until that is known, one cannot fault the President in
anyway for the simple reason that she may well be possessed of good and ample reasons."
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Even though the Additional Solicitor General did not press the second preliminary objection he howevercontendedthatthis
Court is fettered from questioning an act of the President in view of Article 35(1) which standsinthewayofembarking
upon an inquiry why the President had done the impugned act. It must also be mentioned that Karunathilaka v.Dissanayake(13)
andVishvalingamv.Liyanage(14)relieduponbythepetitionerhasno application in the present context.
Karunathilaka(supra) has no application in thatCourtheldthatArticle35onlyprohibitstheinstitutionoflegal
proceedings against the President while in office. It does not excludejudicialreviewofanimpugnedactoromission
against some other person who does not enjoy immunity from suit but relies on an act donebythePresidentin orderto
justify his conduct. The 2nd respondent in this case was only the medium of communication ofapresidentialdirective.In
Vishvalingam (surpa) Court held that though the President is immune from proceedings in Court a party whoinvokestheacts
of the President in his support will have to bear the burden of demonstrating that such acts of the Presidentarewarranted
by law.

Mr. Ralapanawa submitted that "P1" is liable to be quashed on the basis that it had been issued by the 2ndrespondent.This
submission is not tenable. All that "P1" does is to inform the petitioner that Her ExcellencythePresidenthasappointed
Mr. I.M. Liyanage, former High Court Judge to inquire into and report on matters setoutin"P1"inordertodetermine
whether the petitioner is a fit and proper person to hold a commission in the Sri Lanka Air Force. Howevertheexerciseof
the powers vested in the President in terms of Article 30(1) and section 10 of the Air Force Act has in factbeenexercised
by the President and conveyed to the 1st respondent as found in 2R1. The 2nd respondenthasnothingtodowithit.The
instrument creating the commission is however not before Court. Even if this Court is to set aside "P1" the originalactof
appointment by the President and conveyed to the 1st respondent by"2R1"stillsurvives.InRS.BusCo.vMembers&
Secretary of the Ceylon Transport Board (15) Court held that writ would not lie ifthefinalreliefsoughtisafutile
remedy. If the
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appointment of the 1st respondent is not set aside it would be futile to attack "P10". In view of the fact that there is no
challenge to the appointment of the 1st respondent it isunnecessarytocometoafindingonthesecondpreliminary
objection.
The application for writ is accordingly refused. We make no order for costs.
EDIRISURIYA, J. - I agree.
Application refused.


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