IN RE DEMATAGODAGE DON HARRY WILBERT

003-SLLR-SLLR-1989-V-2-IN-RE-DEMATAGODAGE-DON-HARRY-WILBERT.pdf


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IN RE DEMATAGODAGE DON HARRY WILBERT
SUPREME COURT
ATUKORALE, J„ BANDARANAYAKE, J. AND MARK FERNANDO, J.
S.C. RULE NO. 1 OF 1988JUNE 30, AND JULY 4, 1988
Attorney-at-Law – Rule against attorney-at-law – Judicature Act, No. 2 of 1978 ss. 40,42 – Article 136(1) of the Constitution – Jurisdiction under section 42(2) of JudicatureAct regarding acts committed before enrolment – Nature of jurisdiction under s. 42(2)
– Deceit committed before enrolment – Inherent jurisdiction – Standard of proof -Failure to refer to inherent jurisdiction in Rule – Prejudice – Article 136(1 )(g) of theConstitution.
In adducing documentation to establish his educational qualifications for entry to theCeylon Law College the respondent now an attorney-at-law submitted a G.C.E. (O/L)certificate which bore several erasures and alterations which were not done in theDepartment of Examinations which issued the certificate. The respondent used thatcertificate as genuine and correct although he had reason to believe that it had been-materially altered and thereby induced the Ceylon Law College to admit him as astudent. He thus committed a deceit.
Held-
<1. The Supreme Court has jurisdiction under section 42(2) of the Judicature Act, inregard to acts of deceit committed prior to enrolment, but the Court will be slow toexercise that jurisdiction in regard to matters long past or of trifling relevance to theinterests for the protection of which that jurisdiction exists.
Any supposed ambiguity in regard to the extent of the jurisdiction of theSupreme Court which is a superior court and a court of last resort must be resolvedin favour of the wider rather'than the narrower interpretation, as the jurisdiction relatesto the protection of the public, the litigants and the legal profession.
The jurisdiction under section 42(2) does not involve considerations ofpunishment, or penalty, or stigma; but the protection of the interests of the public andthe litigants, and the honour and reputation of the legal profession.
There was a total lack of qualification for entry to the Law College. The entry ofrespondent's name on the Roll of Attorneys-at-Law has been induced bymisrepresentation or mistake, if not worse.
The conduct of the respondent amounts to deceit within the meaning of section42(2).
Even if a narrow interpretation is given to section 42(2) the court has an inherentjurisdiction to deal with the respondent's act of deceit although it was committed beforehis enrolment.
The traditional jurisdiction of the Supreme Court in regard to attorneys-at-law isrecognised by implication in Article 136(1 )(g) of the Constitution; section 42(2) of theJudicature Act does not purport to restrict that jurisdiction. If the court were powerlessto remove from office an attorney-at-law whose admission and enrolment was obtainedin these circumstances, undoubtedly the administration of justice would be brought intodisrepute among right-thinking people. The court has in any event an inherent-jurisdiction to deal with this act of deceit.
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The only facts and charges relied on are those set out in the Rule; the omissionto refer to the inherent jurisdiction of the Supreme Court has hot in any way prejudicedthe respondent in showing cause.
Per Fernando J: "The inherent jurisdiction of a court springs from its very nature; thegrant of a statutory power to deal with a particular act, in a particular manner, does notnecessarily exclude such inherent jurisdiction, -nor are the boundaries thereofimmutable or circumscribed. Such inherent jurisdiction exists, and is exercised,because it is essential for the administration of justice."
Though proof beyond reasonable doubt is not necessary yet proof on apreponderance of probability will not suffice. A degree of proof commensurate with thesubject matter is necessary, for in proportion as the offence is grave so ought theproof to be clear. Every allegation of professional misconduct involving an element ofdeceit or moral turpitude requires a high standard of proof.
Cases referred to:
Solicitor-General v. Ariyaratne 1 CLW 400
Re a Proctor 39 NLR 517
Re Ranasinghe 52 NLR 559; 45 CLW 26
Safer v. Bater (1951) P. 35
Blyth v. Blyth [1966] AC 643
Bhandari v. Advocates’ Committee [1956] 3 All ER 742
In re Kandiah 25 CLW 87
Attorney-General v. Senaratne 60 NLR 77
Hunter v. Chief Constable, West Midlands Police [1982] AC 529
Pelris v. Commissioner of Inland Revenue 65 NLR 457
IN THE MATTER OF A RULE issued on. the respondent attorney-at-law in terms ofsection 42 of the Judicature Act.
Eardley Perera P.C. with E. D. Wikramanayake, W. P. Gunatillake and J. Udawatte forthe respondent.
K. C. Kamalasabayson, Deputy Solicitor-General with A. F. T. Fernando, S.C. for theAttorney-General.
E. S. Amerasinghe P.C. with M. B. Peramuna for the Bar Association of Sri Lanka.
Cur. adv. vult.
July 26, 1989.
FERNANDO, J.
The Respondent entered the Ceylon Law College as a Proctorstudent on or about 4.1.73, and was admitted and enrolled as an
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Attomey-at-law on 18.S.78. Many years later, it was brought to thenotice of this Court that there were serious discrepancies betweenthe G.C.E. (Ordinary Level) Certificate submitted by him with hisapplication dated 11.8.72 to the Law College, and the recordsmaintained by the Department of Examinations. Consequently, thisRule was issued calling upon the Respondent to show cause why heshould not be suspended from practice, or removed from office, asan Attorney-at-law, in terms of section 42(2) of the Judicature Act,No. 2 of 1978, for having –
fraudulently or dishonestly used as genuine G.C.E. (OrdinaryLevel) certificate No. 63310 dated 18.5.67, which he knew or hadreason to believe to be a forged document, and thereby comfnittedan offence;
committed deceit, within the ambit of section 42(2) of theJudicature Act.
The Respondent first sat for the G.C.E. (Ordinary Level)Examination in December 1963, but no evidence has been led as tohis results; he sat again in August 1964, December 1966 andDecember 1967, and his results were as follows;
ubjectAugust 1964December 1966December 196i
Principal’s Law College Examinations ExaminationsCertificate ApplicationDept. Register Dept. Register
iology[Credit]-Creditfailed
ealth Science[Ordinary Pass] Ordinary Pass Credit
inhala Language
A” syllabus)Credit[Ordinary Pass] Ordinary Pass Ordinary Pass
hemistry[Credit] ' FailedFailed
nglish Language
’B" syllabus[Credit]FailedFailed
hristianity (R.C.)Ordinary Pass [Credit]FailedCredit
rithmetic[Credit]Failed
ure Mathematics—–—Failed
ivies[Credit]
hysics—FailedFailed
Dtal: Credit PassesOne[Six]OneTwo
Ordinary Passes One[Two]TwoOne
According to the Respondent's affidavit filed in response to theRule, he was doubtful whether he would be suited to the legal
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profession and whether he would have the financial resourcesnecessary to complete his studies at the Law College; he requestedthat Certificate No. 63310 be returned to him, to enable him to submitit with applications for employment; in December 1972, thatCertificate was returned to him. He testified that in 1987 he wasquestioned by the Police, in connection with the suspected forgery ofthis Certificate; he was requested to produce the Certificate, but didnot do so, as he colild not find it. In early 1989, after this Rule wasserved on him, the Certificate was traced, and was tendered to thisCourt by his Counsel, who joined learned Deputy Solicitor-General inrequesting this Court to obtain a report from the Examiner ofQuestioned Documents; this was done.
In 1972, the Rules of the Council of Legal Education required thata person seeking admission as a Proctor student should haveobtained five credits at the G.C.E. (Ordinary Level) Examination,including credit passes in English Language and Sinhala (or Tamil)Language; either five credit passes obtained at one sitting, or fourcredit passes at one sitting and the fifth at another. As theRespondent had obtained a credit pass in Sinhala Langauge at theDecember 1964 examination, he satisfied these requirements ifCertificate 63310 was authentic and accurate. The practice at theLaw College was to seek verification of results from the Departmentof Examinations, except where an original certificate was tendered;accordingly, verification was sought in respect of a certificate issuedby the Principal of a School in regard to the Respondent’s August1964 results, but not in respect of the December 1966 results. Thispractice may well have to be reconsidered. The Respondent’sapplication to the Law. College, made in his own handwritng, and thecertificate, refer to six credit passes in the same subjects, and hencethere is no possibility, of the certificate having been tampered withafter it was submitted to the Law College.
The relevant portions of the Department of Examinations,Examination Results Registers relating to the December 1966 and1967 examinations were produced. The Examiner of QuestionedDocuments, in his report submitted upon an order made by thisCourt, and his oral evidence, stated that an examination of theentries relating to the Respondnet has not revealed any evidence oferasures, alterations or interpolations; this has not been challenged,
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and after perusing the entries ourselves, we are completely satisfiedthat they have been made in the ordinary course of business andhave not been tampered with.
This evidence prima facie establishes that –
The Respondent's results at the December 1966 examinationwere as set out earlier in this judgment; and
The Respondent sat again in December 1967 for almost theidentical subjects, obtaining similar results to the 1966 results; (butcompletely different to the results shown in Certificate No.‘ 63310).
C.M. Ibrahim, Deputy Commissioner of Examinations(Certificates and Records) produced these Registers and explainedhow they were prepared; the Register for 1966, relating to privatecandidates (the Respondent having been a private candidate on thatoccasion) consists of several loose sheets bound together; eachsheet had several vertical columns, one for each subject, andcolumns for certain other entries; and several horizontal columns, torecord the names and other particulars of the candidates. Thesesheets were entered by officers of the Department from theinformation contained in the applications submitted by privatecandidates; initially the subjects for which each candidate hadentered were recorded, by means of a horizontal line written in theappropriate column; after the answer scripts were marked, the resultsare entered in the appropriate column, by writing the grade obtained(i.e. “D”, “C”, “S” or “F" as appropriate) above the said horizontalline. Thereafter a results sheet is sent to every candidate; some timelater, a certificate is sent, as a matter of course, to every candidatewho has passed in five or more subjects, but not to others (whowould receive a certificate only if they made a specific request. Onevertical column, headed "G.C.E. (Ord. Level) Certificate Number”,contains the serial numbers of the certificates issued to candidateswho have passed in five or more subjects; these numbers areconsecutive, and in the same order as the index numbers of thesecandidates, thus indicating that these certificates were issued as partof one process, and more or less contemporaneously. There is nocertificate number entered against the Respondent’s name in thatcolumn, indicating that no certificate was issued to him on the basisthat he had passed in five subjects. In another column, headed“Remarks”, are entered the serial numbers of the results sheets
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issued to all candidates, as well as the serial numbers of thecertificates issued, on request, to candidates obtaining less than fivepasses; in this column, against the Respondent's name, appears theserial number (63310) of the certificate issued to the Respondent;this certificate is not in the same sequence as the certificates in theother column, but is more than 5,000 numbers later. This confirmsIbrahim's evidence as to the practice followed in sending certificatesto candidates in the latter category.
He also produced the relevant portion of the Register for December1967 relating to school candidates (the Respondent having been aschool candidate from Pembroke Academy); this was not in theidentical format, although quite similar. The sheet relating to theDecember 1967 examination contains the signature of eachcandidate on the reverse, in the appropriate horizontal column,confirming the correctness of the subjects entered for; according toIbrahim, the relevant entries are made in the school, and signed byeach candidate; there can thus be no doubt as to the subjects whichthe Respondent entered for at that examination, which are identical tothe subjects entered for in December 1966, (with one difference,namely that he offered Pure Mathematics instead of Arithmetic)according to the sheet for that examination. In the case of privatecandidates, the sheet is prepared in the Department, and hence thesignatures of the candidates do not appear.
The Respondent has admitted in his evidence before us that he didnot sit for Civics in December .1966; that he was aware that theresults°sheet received by him and Certificate No. 63310 were wrong,in that they purported to show that he had sat for and passed inCivics; that he stated in his application to the Law College that hehad obtained a Credit pass in Civics although he was conscious thatthis was incorrect, as he had not sat for that subject; and thataverments in his affidavit, claiming that he had sat for Civics, wereincorrect. The Respondent admitted that he received a results sheetby post, which he did not produce; he was unable to trace it,although he did not make much effort to do so. He denies that heapplied for the certificate, and states that it arrived by post, and wasthen in the same form as now.
Ibrahim’s evidence is that the Results Register is entered from themarks sheet; the marks sheets are entered from the answer scripts.In cross-examination he stated that he had not checked upon the
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availability of twenty-year-old answer scripts and mark sheets, butthis is irrelevant in this case, for it was his further evidence that boththe results sheet and the certificate issued to the candidate areentered by reference to the Results Register. In determining whetherCertificate No. 63310 was altered, the question that arises is notwhether the entries therein are consistent with the answer scripts ormark sheets, but when, how and why they became inconsistent withthe Results Registers.
Ibrahim was questioned as to the procedure to be followed if amistake was made in the preparation of certificates: as to whethersuch entry was erased, or altered, or a fresh certificate form used. Hetestified that a specific number of certificate forms, bearing printedserial numbers, were handed to each typist for the purpose ofentering results; if any error was made, the typist was not expectedto earse or alter such entry, but to treat that certificate form ascancelled, and to enter a fresh form; all the forms issued to eachtypist, consisting of those duly entered, those not used, and thosewhich were cancelled, had to be accounted for and returned by him.He also testified that for security reasons, certificates were typedusing a purple ribbon. However, we cannot exclude the possibilitythat typists may, in some cases, have typed entries over erasures,contrary to these instructions.
The report of the Examiner of Questioned Documents together withhis oral evidence, establishes that there were numerous erasures andalterations in the Certificate No. 63310. The cross-examination didnot disclose any inconsistency or infirmity in his investigations orevidence. The only defect in his report, which transpired in answer toa question from the Bench, was that it did not state whether (in thecase of two entries) one particular letter had been altered, or typedover an erasure; and even this omission was promptly supplied byhim, after reference to his notes. He explained the methods used byhim for his investigation, and in every instance was able to explainthe basis of his conclusions. I have no hesitation in accepting hisevidence as to the erasures, alterations and double typing appearingon the document. The following matters are established by hisevidence:
The printed portions of the certificate, including the serialnumber and the signature, are genuine;
Vertical lines are drawn in a certificate, against the subjects in
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which the candidate was unsuccessful (or did not sit); this isobviously intended to prevent any entry being added to a genuinecertificate. There i$ evidence of the erasure of such vertical lines,except in the case of the three subjects in which the Respndent wassuccessful according to the Results Register. From the indentationsthat remained on the document, it is clear that what was erased werevertical lines;>
In five places, where there had previously been vertical lines, anew entry (credit pass) had been made over the erasure; thisincluded Civics, for which the Respondent had not sat;
The certificate contains a space to record (in words) the numberof subjects passed; the Sinhala word for “eight” now appears overan erasure; had the certificate been originally entered so as toconform to the Results Register, the word “three” would haveappeared here.
Certain other matters were referred to in his evidence –
The Respondent’s index number is typed in black, without anyerasure, alteration or superimposition (or re-typing);
The first three letters of the Respondent’s name are typed inpurple, over an erasure. The rest of his name, except for one“halkirima" which is in black, has been typed twice, once in blackand once in purple; so also the Sinhala word for “credit’’ in respectof Biology. Four hyphens, immediately before and again immediatelyafter the Respondent’s name, are typed in black;
In respect of Sinhala Language and Health Science, the first twoletters of the Sinhala word for “ordinary pass” are in purple, overerasures, the third letter in purple and black, and the last letter inblack;
Ibrahim’s evidence is that the certificates are typed in purple; if thatpractice was followed, there is no explanation as to how any part ofthe certificate could be in black (without any erasure). Ibrahim hadnot been in that branch of the Examinations Department in 1967, andit may be that this was not the invariable practice. However, this doesnot in any way affect the other evidence as to the erasure of verticallines and substitution of “credits”. Likewise, there is no explanationas to the alterations, and double typing in purple and black, inrespect of subjects in which the Respondent had passed; it may be
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that in the process of erasing the original vertical lines some of theseentries too were affected. Here again this feature does not affect theevidence regarding the five additional credits.
The certificate, at the time it was submitted to the Law Collegewas not consistent with the entries in the relevant Register; it thenshowed the Respondent to have obtained credit passes in foursubjects, in which he had actually failed, and in another for which hehad not sat. These alterations could have been made at the time itwas originally typed; or after it was originally typed, but before it wasposted to the Respondent; or after it was received by the Respondentand before submission to the Law College.
In view of Ibrahim's evidence, while it is possible that, contrary toinstructions, a typist may have made one or two erasures and re-typed entries, to save himself the labour of re-typing an entirecertificate, it is not likely that any typist would have made so manyerasures, in virtually every entry in the certificate, instead of re-typingthe certificate, which' would hve been very much easier. It is alsounlikely that any such re-typing would have been in a different colour.
It is also possible that these alterations were made in theDepartment of Examinations, lifter the certificate was checked butprior to being posted to the Respondent. Either an unknownbenefactor in that Department, intending to benefit the Respondent,or an unknown enemy hoping to put him into trouble at a later date,could have tampered with the certificate. There is only a suggestion,but no evidence, to the latter effect.
In considering these two possibilities, the Respondent's conducthas to be considered. He testified that he sat as a school candidatein December 1963, but did not suggest that his results were anybetter than in 1964 or in 1967. In August 1964 he obtained only acredit pass in Sinhala and an ordinary pass in Christianity. He leftschool in January 1965 and joined Pembroke Academy, to startafresh a two-year course for the same examination; however, inDecember 1966 he did not sit' as a school candidate from Pembroke;he could not recall whether Pembroke had a Withdrawal test, to weedout unsuitable candidates; he sat as a private candidate. Havingreceived his results sheet, and certificate, both showing (according tohim) six credits and two passes, he nevertheless sat again in
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December 1967; he did so, he says, because he had not obtained acredit in Sinhala. When it was pointed out that he had alreadyobtained a credit in Sinhala in 1964, he could not give a satisfactoryexplanation: at one time, he seemed to suggest that he sat becausehis fellow-students were sitting, and at another stage he implied thathe wanted to have five or six credits, including Sinhala, at one sitting.However, he also testified that after the December 1966 examination,he left Pembroke and commenced working as a proof-reader at theColombo Catholic Press, with the idea of later becoming a journalist.
If so, the latter suggestion cannot be accepted, for this would havemade it difficult to get the results he hoped -for. If he did leavePembroke early in 1967, it is difficult to see how he could haveentered as a school candidate from Pembroke. He has thus failed togive a plausible explanation for making a further attempt, despiteresults (in 1966) far better than in 1963 or 1964. In his application tothe Law College, while giving full details, as required, of "Schoolsand Universities in order, giving dates of entry and leaving”, of threeschools attended prior to December 1964, and of another institutionattended in 1970-71, he has omitted Pernrboke Academy which hewas attending when he obtained the results on which he relied foradmission; no satisfactory explanation was forthcoming for thisomission. Further, the hypothesis that erasures and alterations tookplace in the Department must also be examined in relation to theresults sheet: prior to the certificate being sent to the Respondent, a ,results sheet was admittedly received by him; if the results sheet wasin conformity with the official Results Register, then the discrepanciesbetween the results sheet and the certificate would have beenobvious to the Respondent. If the results sheet was in conformity withthe altered certificate, then it would mean that the results sheets toowas deliberately entered in a manner inconsistent with the ResultsRegister: but there is no reason whatever to think that the resultssheet was incorrect. Finally, the manner in which the Respondenttreated the obvious error in regard to Civics is also relevant: heasserted that candidates were often credited with passes in subjectsfor which they had not sat, and, like them, had no hesitation in takingthe benefit of such errors, without query or qualms of conscience.
The Respondent’s evidence in these proceedings did not impressme at all; his readiness to reap the benefit of the error in regard tothe credit pass in Civics weighs against his credibility; he had noscruples about declaring in his application to Law College that he had
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obtained a credit in Civics; nor even about swearing in his affidavit inthese proceedings that he had sat for Civics. In giving evidence hewas evasive and inconsistent on crucial matters; as to his reasons forsitting for the December 1967 examination, as to his employmentbetween 1967 and 1972, and as to his reasons for waiting until 1972to commence his legal studies, although from 1967 he was qualifiedto do so, if Certificate No. 63310 was authentic.
In these circumstances, I am satisfied beyond reasonable doubtthat the alterations to the certificate did not take place in theDepartment of Examination.
In proceedings of this nature, it is not necessary that the actsalleged be proved beyond reasonable doubt; these proceedings arenot criminal or penal in nature, but are intended to protect the public,litigants, and the legal profession itself. Over half a century ago, itwas observed in Solicitor-General vs. Ariyaratne (1), that theseproceedings involve not the question of punishing a man, but quite adifferent question, ought a person against whom such offences areproved remain on the Roll of an honourable profession? The sameprinciples have been re-iterated in regard to re-enrolment: thus in Rea Proctor, (2).
“In the case of In Re Pool it was saidthat their presence on
the roll is an indication prima facie at least that they are worthy tostand in the ranks of an’honourable profession to whose membersignorant people are frequently obliged to resort for assistance inthe conduct and management of their affairs and in whom they
are in the habit of reposing unbounded confidence; and in
restoring this person to the roll we should be sanctioning theconclusion that he is in our judgment a fit and proper person to beso trusted."
and again in Re Ranasinghe, (3):
"….. this Court, in'dealing with these applications, must not beinfluenced either by punitive or sympathetic cosiderations. Ourduty must be measured by the rights of litigants who seek advicefrom a professional man admitted or re-admitted to the Bar by thesanction of the Judges of the Supreme Court. It is also measuredby the right of the profession, whose trustees we are, to claim thatwe should satisfy ourselves that re-enrolment will not involvesome further risk of degradation to the reputation of the Bar.”
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However, proof on a preponderance of probability will not suffice; adegree of proof commensurate with the subject-matter is necessary,for in proportion as the offence is grave so ought the proof to beclear; Bater vs. Bater (4); Blyth vs. Blyth (5). In Bhandari vs.Advocates Committee (6), the Privy Council approved the followingstatement of the law:
“We agree that in every allegation of professional misconductinvolving an element of deceit or moral turpitude a high standardof proof is called for, and we cannot envisage any body ofprofessional men sitting in judgment on a colleague who would becontent to condemn on a mere balance of probabilities.”
Applying that standard, I am satisfied, and hold, that the Respondentused as genuine and correct Certificate No. 63310 (a) which he knewto be incorrect, and (b) which he had reason to believe to have beenmaterially altered; thereby inducing the Ceylon Law College to admithim as a Proctor student. If these facts had then been known, I amquite certain that the Respondent would not have been admitted andenrolled as an Attorney-at-law by this Court in September 1978. Ittranspired that criminal proceedings are contemplated against theRespondent for forgery; although not obliged to do so, in view of ourorder in this matter, we refrain from making any finding in respect ofthe charge of fraudulently or dishonestly using as genuine acertificate known to be forged.
It remains to consider whether this act of deceit, committed beforethe Respondent was enrolled as an ■ Attorney-at-law, amounts to“deceit" within the meaning of section 42(2) of the Judicature Ad,No. 2 of 1978. The relevant provisions of the Judicature Act are asfollows:
40(1): The Supreme Court may in accordance with rules for thetime being in force admit and enrol as attorneys-at-law persons ofgood repute and of competent knowledge and ability. ,
42(2): Every person admitted and enrolled as an attorney-at-lawwho shall be guilty of any deceit, malpractice, crime or offencemay be suspended from practice or removed from office by anythree Judges of the Supreme Court sitting together.
43(3): Before any such attorney-at-law shall be suspended orremoved as herein provided, a notice containing a copy of the
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charge or charges against him and calling upon him to showcause within a reasonable time why he should not be suspendedor removed, as the case may be, shall be personally served onhim
42(4): It shall be the duty of the presiding officer of any court orothertribunal administering justice before which any
attorney-at-law is found guilty of any crime or offence which maybe prescribed to forthwith report such fact to the Supreme Court,which may if it thinks fit suspend such attorney-at-law frompractice pending the final determination of any appeal from suchfinding of guilty or a proceeding under sub-section (3) whicheveris later.
Mr. Eric Amerasinghe, P.C., on behalf of the Bar Association of SriLanka submitted that the Association was interested only in thequestion of principle involved, whether disciplinary action undersection 42(2) could be taken in respect of acts committed prior toenrolment. He submitted that there ought to be no exhumation ofmisconduct buried in the distant past, no hunting for skeletons,unknown or forgotten, in ancient cupboards. If that were to bepermitted, he said, the Association might be inundated withcomplaints seeking to rake up the past; but we do not take so dismala view of the antecedents of the members of the legal profession. Heconceded one exception, that this Court had jurisdiction to remove anAttorney-at-law convicted of an offence, committed prior to enrolment,and reported under section 42(4); he sought to explain this anomalyon the basis that there was a stigma attaching to such a conviction,which he said was of itself a good ground for the removal of anAttorney-at-law.' The jurisdiction under section 42(2) does not involveconsiderations of punishment, or penalty, or stigma; but theprotection of the interests of the public and litigants, and the honourarid reputation of the legal profession. Such a conviction may bereported by the presiding officer of a court, without having the meansof ascertaining whether the offence was committed prior toenrolment; if the jurisdiction conferred by section 42(2) is confined toacts committed after enrolment, the procedure for reporting providedby section 42(4) cannot extend that jurisdiction. When a matter isreported, this Court must determine whether it falls within the scopeof section 42(2); if it does not, the jurisdiction under section 42(2) willnot be exercised. Section 42(2) must therefore be interpreted withouttreating A conviction as an exception.
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All Counsel were agreed that this Court has an inherent jurisdictionto take disciplinary action in respect of an act of deceit committedprior to enrolment, at least where such deceit relates to or isconnected with the process of enrolment. Mr. Eardley Perera, P.C.,for the Respondent, submitted that this Rule had been issued underand in terms of section 42(2), that this Court did not have jurisdictionto deal with the Respondent under that section, and accordingly noaction for suspension or removal could be taken in theseproceedings. The learned Deputy Solicitor-General contended thatthis Court did have jurisdiction under section 42(2); further, as noacts, other than those set out in the Rule., were involved, an ordercould be made in these proceedings even in the exercise of theinherent jurisdiction of this Court, without the need for freshproceedings.
Before considering the scope of section 42(2), it needs to beemphasised that the existence of jurisdiction must be distinguishedfrom its exercise. That an Act was committed before enrolment, orthat a considerable period has elapsed since its commission, maywell justify this Court in declining to suspend or remove a practitionerafter inquiry, or even in declining to issue a Rule in the first instance:but it would not follow that this Court does not have jurisdiction inthose circumstances.
Turning to section 42(2), Mr. Amerasinghe submitted that“malpractice;’ necessarily referred to an act after enrolment, as thatterm must refer to conduct contrary to the standards accepted in thelegal profession. Mr. Amerasinghe contended that the noscitur asociia rule of interpretation was applicable, and that the other terms- deceit, crime, offence must be interpreted with the like restriction.“Where two or more wordis which are susceptible of analogousmeaning are coupled together…. they are understood to be used intheir cognate sense. They take, as it were, colour from each other,the meaning of the more general being, restricted to a senseanalogous to that of the less general.” (Maxwell, Interpretation ofStatutes, 12th ed. p. 289). Maxwell’s comment that this maxim isalways a treacherous one “unless you know the societas to whichthe socii belong” is apposite; "deceit”, “crime” and “offence” canhardly be regarded as words “which are susceptible of analogousmeaning”, and certainly not of the same societas, as “malpractice”.Further, “malpractice” appears to be the more general word – for
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offences may all be malpractices, but most malpractices would not beoffences; and the rule cannot be applied to place a restriction on theless general words. In any event, we are doubtful whether“malpractice” is confined to acts committed after enrolment: for itmay well include an act of corruption or breach of confidentialitycommitted by an attorney-at-law, during his period of apprenticeship,in relation to such apprenticeship.
The phrase “who shall be guilty of" in section 42(2) points to the
future: but does it mean “who shall commit any deceit" or “who
shall be found guilty of any deceit"? It is clear from section 42(3)
that “guilty” refers to a finding by the Supreme Court, for that sectionrequires the service of charges and an opportunity to show cause.Had section 42(2) used the expression "who shall be found guilty”,it might well have been argued that an Attorney-at-law "found guilty",and reported, under section 42(4) was liable to be removed withoutthe need for a further finding by the Supreme Court. I am of the 'viewthat section 42(2) requires in every case a finding of guilt by theSupreme Court – whether such finding be upon evidence, or upon anadmission, or by way of presumption, or by estoppel. The proof of aconviction by another Court would facilitate, but not dispense with,such a finding; the conviction cannot be re-argued on the evidenceupon which it was based, but other evidence can (exceptionally) beadduced: He Kandiah (7) – despite a doubt expressed in Seneratne'scase (8). The words in question thus refer to a finding of guilty, andnot to the commission of the act of deceit or other misconduct. Thisinterpretation of section 42(2) is confirmed upon a consideration ofthe nature of the jurisdiction thereby conferred: whereas a strictconstruction is required where a statutory provision empowers theinfliction of punishments and penalties, the decisions cited earlierdemonstrate that this jurisdiction relates to the protection of thepublic, litigants, and the legal profession. Had there been anyambiguity, therefore, section 42(2) must be given a wider, rather thana narrower, construction. Likewise, we are not dealing with the limitedjurisdiction conferred on a tribunal created by statute, where a narrowconstruction is sometimes proper, but with the jurisdiction of aSuperior Court, the Court of last resort; with a jurisdiction possessedsince 1801, in relation to persons always regarded as standing in aspecial relationship to the Court. Any supposed ambiguity in regard tothe extent of that jurisdiction must be resolved in favour of the wider,rather than the narrower, interpretation. I am of the view that this
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In Re Dematagodage Don Harry Wilbert (Fernando, J.)
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court has jurisdiction under section 42(2) in regard' to acts of deceitcommitted prior to enrolment, while recognising that this Court will beslow to exercise that jurisdiction in regard to matters long past, or oftrifling relevance to the interests for the protection of which thatjurisdiction exists. I hold that the conduct of the Respondent amountsto deceit, within the meaning of section 42(2).
Even if a narrow interpretation be given to section 42(2),nevertheless this Court has an inherent jurisdiction to deal with theRespondent's act of deceit. That deceit did not impinge directly onthe very act of enrolment (as, for instance, the submission of a forgedLaw College final examination certificate would have);-however it. wasnot a merely collateral matter, or a disputed question of interpretationof the relevant Rules, or a defect which was curable (such as theomission to furnish a character certificate or being a few months,under-age), but a total lack of qualification for entry to the LawCollege. Had these facts been known, the Respondent would nothave been considered to be a person of good repute, or ofcompetent knowledge and ability. It is not that.l take a different viewas to his knowledge, ability or reputation, but rather that the act' ofenrolment, and of the formal entry of his name on the Roll ofAttorneys-at-law, has been induced by misrepresentation or mistake,if not worse. The inherent jurisdiction of a court springs from its verynature; the grant of a statutory power to deal with a particular act, ina particular manner, does not necessarily exclude such inherentjurisdiction, nor are the boundaries . thereof immutable orcircumscribed. Such inherent jurisdiction exists, and is exercised,because it is essential for the administration of-justice. Thus in Huntervs. Chief Constable, West Midlands Police (9) this jurisdiction inrelation to abuse of procedure was referred to as:
“the inherent power which any court of justice must possess
to prevent misuse of its procedure in a way which, although notinconsistent with the literal application of its-procedural rules,would nevertheless be manifestly unfair to a party to litigationbefore it, or would otherwise bring the administration of justice intodisrepute among right-thinking people.
The traditional jurisdiction of this Court in regard to Attorneys-at-lawis recognised, by implication, in Article 136(1)(g) of the Constitution;section 42(2) of the Judicature Act does not purport to restrict thatjurisdiction. If this Court were oowerless to remove from office an
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Attorney-at-law whose admission and enrolment was obtained inthese circumstances, undoubtedly the administration of justice wouldbe brought into disrepute among right-thinking people. This Court hasin any event an inherent jurisdiction to deal with this act of deceit.
In Peiris vs. Commissioner of Inland Revenue (10), Sansoni, J., ashe then was, observed –
"It is well settled that an exercise of a power will be referable toa jurisdiction which confers validity upon it and not a jurisdictionunder which it will be nugatory. This principle has been appliedeven to cases where a Statute which confers no power has beenquoted as authority for a particular act, and there was in forceanother Statute which conferred that power.”
The only facts and charges relied on are those set out in the Rule;the omission to refer to the inherent jurisdiction of this Court has notin any way prejudiced the Respondent in showing cause. I thereforehold that, in any event, the conduct of the Respondent amounts todeceit, jn respect of which disciplinary action may be taken againsthim under the inherent powers of this Court.
The Respondent’s conduct, particularly in relation to the affidavitfiled in these proceedings and his unrepentant attitude in respect ofthe use of a certificate admittedly known by him to be incorrect inmaterial respects, makes it clear that there is neither anacknowledgment of wrongdoing nor repentance. It is thereforeunnecessary to consider whether an order for suspension frompractice would be sufficient. The Rule is made absolute, and I directthat the Respondent ‘be removed from office as an Attorney-at-law,and that his name be struck off the Roll of Attorneys-at-law.
ATUKORALE, Jl – I agree
BANDARANAYAKE, J. – I agree
Rule made absolute.
Name struck off Roll of Attomeys-at-law