BANDARANAIKE v. DE ALWIS AND OTHERS (2)

033-SLLR-SLLR-1982-2-BANDARANAIKE-v.-DE-ALWIS-AND-OTHERS-2.pdf


664
Sri Lanka Law Reports
(1982) 2 S L R.
BANDARANAIKE
v.
DE ALWIS AND OTHERS (2)
SUPREME COURT
SAMARAKOON. C.J.. WIMALARATNE. J.. AND COLIN-THOME. J.
S.C. REFERENCE ! OF 1982.
SEPTEMBER 23, AND 24, 1982.
– Special Presidential Commissions of Inquiry Law, No. 7 of 1978, sections 2, 16anti 18A – Misconduct by Member of Commission – Declaration that he is unableto act – Standing ofprivate citizen to bring an action to remove member of Commission.The 1st respondent is a Judge of the Court of Appeal and- the other tworespondents were Judges of the Supreme Court. All three .respondents wereappointed by His 'Excellency the President in terms of section 2 of the SpecialPresidential Commissions of Inquiry Law to enquire and obtain informationrelating to various matters set out therein.'
Notices under section' 16 were issued to a number of persons including oneA.H.M. Fowzie businessman, politician and one time Mayor of Colombo. Hereceived the notice on 1.11.78 and was informed that he was a person whoseconduct should be the subject of inquiry and/or who is implicated or concernedin the matters under inquiry by the Commission.
On 20.11.78 Fowzie received another notice stating “until further communicationis sent to you, you are not required to take any step in respect of the Noticedated 1.11.78.”
The 1st respondent held a Power of Attorney on behalf of his son Chanaka whowas away in U.K., working under a contract of employment. The 1st respondentacting on behalf of Chanaka advertised No. 4. Anula Road and 542/1. HavelockRoad, Colombo 6 for sale and letting respectively in April 1981. Early inDecember 1981 one A.H.M. Mohideen and one Ebert Peiris met the 1st respondentat the above premises and made offers both to buy No. 4 Anula Road and rentout 542/1, Havelock Road.
On 17th December 1981, the 1st respondent entered into a tenancy agreementwith Mrs. Fowzie having received Rs. 39,000/- the previous day. The 1st respondentin his affidavit stated it was on that day that he came to know that the tenantwas the wife of A.H.M. Fowzie. On 1.1.82 the 1st respondent entered into aSale Agreement' No. 213 with Mohideen and handed over the keys. On 11.4.82the Deed of Sale was executed and the balance of the purchase price was receivedon 15.4.82.
The petitioner alleged that the 1st respondent knowingly engaged in financialdealings with the said Fowzie and by doing so has (a) committed an act of gravemisconduct (b) vitiated his integrity and thereby shown himself to be corruptand guilty of corruption; and (c) compromised his position as a Judge of theCourt of Appeal by his misbehaviour.
Held –
Per Samarakoon, C.J.
"I cannot see anything dishonest in his (1st respondent's) conduct throughoutthe transaction. I therefore hold that the allegations of misconduct (graveor otherwise), misbehaviour and corruption, are unfounded and reject them.He has not compromised his position as a Judge of the Court of Appeal."
SC Bandaranaike r. De Alwis and others 12) tSanuirakoon, C.J.) 665
Yet the 1st respondent cannot properly continue to sit in judgment overFowzie because there is a real likelihood and a reasonable suspicion thathis judgment would be warped by favouritism though there is no proof of it.
•I would therefore issue a writ of prohibition forbidding the 1st respondent from,taking any further part in the investigation of the conduct of Fowzie and alsoprohibiting him from joining the other Commissioners in a final or other reportto the President which incorporates a decision regarding. Fowzie."
“I desire to state that that confidence in which justice is rooted has been destroyedas far as the investigation of Fowzie is concerned. Right minded people wouldnot be unjustified if they look askance at other decisions of the 1st respondent.It might undermine that faith in the Commission itself which is necessany tocommand respect for its recommendations. This must be avoided. whatever the cost.
The petitioner as a member of the public has a right and interest to maintainthis application and to seek the relief claimed.
The. order being made does not have the effect of slaying, suspending orprohibiting the Commission from functioning or setting aside or varying anyorder finding, report, determination, ruling or recommendation of theCommission. It merely prohibits one of the Commissioners from acting incircumstances.
Per Wimalaratne, J.
Declaration is granted that 1st respondent has by his misconduct becomeunable to act as a member of the Commission.
Every citizen has a standing to invite the Court to prevent some abuse ofpower and in doing so he can claim to be a public benefactor.
Per Colin-Thome, J.,•
That all the transactions were carried on while the section 16 Notice wasstill in force and as there were allegations of serious offences committedby Fowzie the 1st respondent is guilty of misconduct unbecoming .of »■Judicial Officer.
That 1st respondent has. it is declared, become unable to act and is disentitled. to-hold office and function as Member of the Special Presidential Commission
of Inquiry.
A writ of quo warranto should issue.
Cases referred to:
(1J Regina v. Dublin Corporation (1878) 2 L.R. Ir. 371, 376.
Everett v. Griffiths (1921) 1 A C. 631. 683.
R v. Sussex Justices, McCarthy, Ex parte (1924) 1 KB 256, 259.
Metropolitan Properties Co. (F.G. C.) Ltd. v. Lannon (1969)
APPLICATION for writs of prohibition and quo warranto.
Felix R.D. Bandaranaike, petitioner in person.
P. Navaratnarajah, Q.C., with Dr. M.L.S. Jayasekera, K.
Sivanathan and A.A.M. 1 Iliyas for 1st respondent.
October 18, 1982.
SAMARAKOON, C.J.
The petition in this case was filed in the Court of .Appeal againstthe three respondents who comprise the Special Presidential Commissionof Inquiry. They were appointed by the President of the Republic
1 Q.B. 577,599.
Kanag-fswaran, K.Cur.adv.vult.
666
Sri Lanka Law Reports
(1982) 2 S L R.
by Warrant under his hand in terms of section 2 of the SpecialPresidential Commissions of Inquiry Law No. 7 of 1978. The 1strespondent is a Judge pf the Court of Appeal and the 2nd and 3rdrespondents are Judges of the Supreme Court. The petitioner appliedfor a Writ of Quo Warranto and a Writ of Prohibition against the1st respondent. No relief was claimed against the other two. As the1st respondent is a Judge of the Court of Appeal the petition wastransferred to the; Supreme Court in accordance with the requirementsof section 18A(1) of the Law as amended by Act No. 4 of 1978.That is how this Court became seized of this matter.
By Warrant dated 29.03.1978 (1R1) the Commissioners were directedto inquire into and obtain information in respect of the peripdcommencing May 28th 1970 and ending July 23rd 1977 relating tothe various matters therein set out. The Warrant required theCommissioners to render a report to the President at the end of oneyear but this period has been extended from time to time. The lastextension validates it up to 28th September, 1982. The Commissioncommenced sittings in August 1978. On the 9th November 1978 theCourt of Appeal by its decision in Court of Appeal Application No.1 of 1978 held that the said Warrant issued to the Commissionerswas ultra vires the Law and issued a Writ of Prohibition against theCommissioners prohibiting them from inquiring into the conduct ofthe appellant in that case. The legislature then passed amending ActNo. 4 of 1978 with retrospective effect from the date of the derationof Law No. 7 of 1978. The amendment to section 2 provided, thata Warrant issued under section 1 may relate to any period whatsoeverincluding any period before the date of commencement of the Law,thereby nullifying the decision of the Court of Appeal.
Prior to the 9th November, 1978, notices under the provisions ofsection 16 of the Law were issued to a numbef of persons, one ofthem being Mr. A. H. M. Fowzie a businessman, politician and onetime Mayor of Colombo. He received a notice dated November 1,1978 (1R3). The petitioner was another who was noticed in termsof section 16. He received notice dated 6th November, 1978 (1R2).Each person was informed that he was a person –
whose conduct should be the subject of inquiry; and/or
who is implicated or concerned in the matters under inquiry,by the Commission.
It will be convenient at this stage to revert to the allegations inthe petition. The petitioner alleges that on the 10th December 1979the ' respondents made a second Interim Report to the President
SC Bandartihaike i De Alwis and others-(2) (Samarakoon. C.J.)667
which has been published as Sessional Paper VI of 1979 (a copy ofit has been produced marked XI). The Report, states that noticesissued before the said decision of .the Court.of Appeal were revokedand thereafter (presumably). after vthe amending ..Act was passed)notice under section 16 were again issued. The names of severalrecipients arCJ frTeViti'driecIj ‘’one of them being the said Fowzie. Hispassport was impounded on the 8th August, 1978,. therebyJpreventinghim from leaving the country. The petitioner states that this-passportwas released on 1st October, 1979. The petitioner then states thatwhile the said Fowzie was subject to the said notice and therebysubject to the jurisdiction of the Commissioners the? first1 'respondentknowingly engaged in financial dealings with 'fiiifi/’THis" financialdealing comprises of a land transaction upon Deed No. ^230 Ijlatedlith.May, 1982, attested by Pushpa Nanayakkara, N.P;f'by Whichthe ist respondent as Attorney of his son sold and transferred theland and premises bearing assessment No. 4, Anula Road, Colombo6, described in the schedule thereto, to Fowzie’s daughter for a sumof Rs. 575,000.00. It is alleged that the consideration was paid byFowzie. It appears that commencing 1st January 1982 Mrs. SakeenaBeebee Fowzie, wife of the said Fowzie, took on rent premises No.
. 542/1, Colombo .6, at a rental of Rs. 6,500/- per mensem. . Thistransaction was also with th^ 1st respondent as Attorney of thelandlord. These transactiohs.are adjpitted,., The derails of the transactionsare ; not rejevant pt. this .stage and^.wijj be, considered., later togetherwith the allegations of wrongful conduct,. It. is alleged that the moneypaid on both transactions Was. money of Fpwzie.. This allegation toois not controverted.
1 The 1st respondent contests the allegation that at the time of thesetransactions Fowzie was subject to a notice issued under section 16.He states (Hal the notice 1R3 had been revoked by a notice dated’ 20.11 J978"'(1R5) ;ah|d 'tfiat the statement in Report XI that noticeshad been reissued on ail persohs mentioned at page 2 thereof wasIncorrect. He statfes'that, in facf such notices were not again issuedrbn Messrs Fowzie arid Wickrerhanayake mentioned therein. The 2nd•5arid 3rd respondents who have filed affidavits support him on’ thispoint. Two of the notices that are stated to have been again issuedhave ?been^- intfrked as;'exhibits One ?15 tb^’tfie petitioner. It is dated• 7th‘ May, 1979,' {1R14)''arid the Other- is1't6'‘Mf; ,Jaya Pathirana dated5th January 1979 (1R15). The coUnteFaffi'davit of the petitioner doesi not' Contradict this statement and I accept the stater^:*?.-ii&c'Pfc'notice: waS'again issued1 on FdWzie. But the questx'rFtHu*decision at this stage is whether the notice 1R3 j.V 'Vnd.ie
668Sri Lanka Law Reports(1982) 2 S.L.R.
law, revoked by 1R5 as contended by the respondents. 1R5 reads thus –
“20th November, 1978.
Mr. A. H. M. Fowzie,
81/22, Silversmith Lane,
Colombo 12.
Notice Under Section 16 of the Special PresidentialCommissions of Inquiry Law No. 7 of 1978
Until a further communication is sent to you, you arenot required to take any steps in respect of the Notice dated1.11.78.
Sgd. J. G. T. WeeraratneChairman”'
Revocation in its ordinary sense means a cancellation. Somethingthat was done is undone. The legal effect of such act is that something 'that was, is now no more. IRS does not cancel or recall the notice1R3. That notice remained valid and effective despite IRS. TheCommissioners’ opinion and their decision in terms of section 16remain unaltered and operative. Only the filing of the statementrequired of Fowzie has been postponed sine die, i.e., until such timeas the Commissioners’ decide that it should be filed. In the resultthe date of the inquiry stands adjourned sine die. Such statementwill become necessary, and the inquiry will be held, when the occasionarises and the Commissioners stipulate dates for them. Until thenthe. notice 1R3 remains in abeyance. Its legal validity and its operativeeffect are in no way undone by IRS. I cannot therefore see thesemblance of a revocation in IRS. Further it appears to me that thelegal validity of 1R3 capnot be questioned because the amending, Act No. 4 of 1978 by retrospectively ensuring the legal validity ofthe Warrant from the 29th day of March 1978 automatically validatedall acts done and steps taken on the faith of it. The notice 1R3therefore remained valid in law from the date of its issue. TheCommissioners must have been aware of the impending legislation.I find that the notice IRS is dated 20.11.1978. The amending legislationwas certified on 22.11.1978. This accounts for the notice 1R3 beingkept, .in abeyance by IRS.
. The dates earlier .given to.the petitioner by notice 1R4 werepostponed sine die by letter IRS as in the case of Fowzie. After the. 2nd November 1978 a fresh notice under section 16 has been servedon the petitioner- (1R14 dated 7.S.79). It refers to the copies ofevidence already sent with- notice 1R2, It forwards a further set ofevidence given by 4 witnesses and stipulates fresh dates for filing of
sc
Bandaranaike v. De Atwis and others (2) (Samarakoon. C.J.)669
his statement and for inquiry. The inquiry against the petitionercommenced on 22.11.1979 and was concluded on 30.12.79. The 1strespondent states that thereafter the evidence against Fowzie wasagain considered especially in the light of facts revealed at the inquiryagainst the petitioner and it was unanimously decided that no allegationscould be framed against him. Therefore in January 1980 theCommissioners decided not to take any further steps against Fb'Wzie.The other respondents confirm this decision in January 1980. Thusstates the 1st respondent in his affidavit –
“Mr. A. H. M. Fowzie ceased to be a person whose conduct
was a subject of inquiry before us”. (Vide para 13(c) of the
1st respondent’s affidavit).
The petitioner challenges the veracity of this statement and givesreasons as to why it should not be accepted by this Court. I willdeal with them later. The best evidence of the decision of thisparticular dispute would be the file or record of the Commissioncontaining a record of such decision and the consequential directionsthat must have been given to the Secretary and to his staff. Suchevidence was not forthcoming although we mentioned to Counselthat we would like to peruse them. On the other hand this may nothave been a firm decision because the 1st respondent in his affidavithas disclosed the fact that the Commission also decided to mentiononly in the final report the names of those against whom no inquirywas held due to insufficiency of evidence. However 1 do not needto rule on this particular dispute as it is not necessary for thisjudgment of mine. Furthermore this concerns the conduct of theCommission which might be questioned later. What is most importantis that even-after this alleged decision of January 1980 the notice toFowzie 1R3 was not revoked in fact or in law. It remains operativeup to date and the decision recorded therein remains valid in law.It is in this background that the transaction of sale and of lettingand hiring must be considered.
At the outset I must state that both transactions were opentransactions. There was no secrecy about them. One of the allegationswas that the . sale on Deed X3 was done contrary to the ExchangeControl Laws and Regulations in that it lacked the necessary permissionfrom the Controller of Exchange. This was denied by Counsel forthe 1st respondent who stated that such permission was in factobtained. There was no proof of either the allegation of the petitioneror the assertion of the Counsel for the 1st respondent. It therefore
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(1982) 2 S.L.R.
remains merely as an allegation and it is not relevant for the decisionof this case. The properties belonged to the 1st respondent’s son,Chanaka, whose power of attorney was held by the 1st respondent..Ctianaka was a Marine Engineer employed in various ships and wastherefore compelled to roam .the seas. At the material time he was .in Southshields, England where he was Hving for the purposes ofhis-contract of service. The 1st respondent therefore hailed, the.setransactions on j^hplf of his son. House No. 4, Anula Road (s.oldon jk3) and house No. 542/1, Havelock Road (rented on lR27(a))afe'&ated to be two semi detached houses with a common garage.They werefcOnstructed in !981 and completed in June 1981. ACertificate of Conformity was issued for each by the Colombo -Municipal Council on the 16th June 1981. (1R17 and lRl8). Inanticipation of their completion several public advertisements for theirsale or lease were inserted in newspapers' in April 1981. Two of
them,in the Ceylon Daily News of 25th April; 1981, and 26thSeptember, 1981, were produced- marked 1R20 and 1R21. Theseadvertisements were paid for- by the-1st respondent and the relevantreceipts -have -been produced (1-R19a – c). Several brokers madeoffers?. Early in •■December 1981 a broker, Ebert Pieris by name,'along with one • A: H. M.* Mohideen and another, met the 1st respondentat the premises and -made offers to purchase one and hire the other.The 1st respondent took time to consider these offers. On the 6th>December, the 1st respondent decided to accept-the offers and so'informed broker Pieris. In the evening of that ^day Mohideen paid'him an' advance of Rs. 10,000/-. On the next day he called-foranother 10,000/- necessary for payment to the National Savings Bank •and.that was paid that very evening by Mohideen. On'that occasionan.-agreement.(lR22) was signed by both 1st respondent and Mohideen.
It mentioned; the sum of Rs. 20,000/- already received as earnestmoney for the sale of the said house No. 4 for a sum of Rs. 575,000/-to Mohideen or. his nominee (to be named thereafter). Mohideensaid that it was for his niece. On the 16th -December Mohideen paid
a sum of Rs. 39,000/- as rent on the letting of premises No: '542/1,Havelock Road, and Mater that day requested the 1st respondent togrant the tenancy to his sister in law Mrs. Sakeena Beebe Fowzie.’On the 17th December, 1981, the 1st respondent prepared a tenancyagreement in the name of Mrs. Fowzie, signed it, and handed thesame together with the keys of -the premises to Mohideen. It was
then,that the 1st respondent came to know on inquiry that SakeeiiaBeebe was the wife, and that the niece of Mohideen was the daughter,
SC Bandaranaike v. De Alwis and others (2) (Samarakoon, C.J.)671
of A- H. M. Fowzie. He adds “About this time having seen him atthe premises I came to know that the person who had come on thevery first day with A. H. M. Mohideen was A. H. M. Fowzie”. Asale agreement No. 213 dated 1st January, 1982 (1R27) attested byPushpa Nanayakkara, N.P. was. executed on the. same day and thekeys of premises No. 4, Anula Road, were handed over on the sameday to Mohideen as he stated that his brother Fowzie, wished tostart making.certain alterations. The agreement (lR27(a)) acknowledgesthe. receipt of.a sum of Rs. 320,000/-. The balance purchase priceof Rs. .250,000/- was paid in three instalments – the third being on15.04.82. On the 11th May 1982 the Deed X3 was executed. TheBroker was paid monies due to him on 18th May 1982.. (1R28). Thereverse of this Document shows that out of the total sum of Rs.14,375/- a deduction of Rs. 3,300/- was made on account of nonpaymentof interest by the buyer. On the 11th May the petitioner appears tohave met the Secretary, Ministry of Justice personally and representedmatters to him. He had been. requested to make his representationsin writing. He then wrote letter dated 12th May (X(4) to.the Secretary,Ministry of Justice setting out the facts as known to him. In it herefers to “the transaction, still being incomplete.” He does not appearto jiave been aware of the full facts. He alleged also that the financialdealings of the 1st respondent referred to constitute “a vitiation ofhis integrity” amounting to “corruption”. He followed this up withanother letter dated 23rd May 1982 (X5) in which he states that hehad attended the wedding of Fowzie's son at a hotel in Colomboon 21st May and that the 1st respondent himself was present as aguest at that wedding. The Minister of Justice appears to havecommunicated to the President the above correspondence and hadinformed the petitioner that he had done so. The petitioner thenaddressed the President by letter dated 28th June 1982 setting outin detail the facts as known to him and also his allegations. He filedthe petition in this case on the 9th July 1982. This is the biackgroundupon which our decision has to be made.
The petitioner’s allegations are of a twofold nature. The first isthat the 1st respondent “knowingly engaged in financial .dealings-withthe .said Fowzie” and by so doing he has –
“(a) committed an act of grave misconduct,
(b) vitiated his' integrity and thereby shown himself to beedrrupt, 'and-guilty 6f corruption,c) comproiriised his ’position as a Judge of the Court ofAppeal by his. misbehaviour.”
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(1982) 2 S.L.R.
This is hot a “financial dealing”, simpliciter. Money has been paidfor valuable consideration. It is: a sale of land and a letting ofpremises. It is alleged that the 1st respondent entered into thistransaction, with the knowledge that he was dealing with Fowzie, aperson whose conduct was the subject of inquiry by the Commission.There is no evidence that the 1st respondent was aware at the timehe entered into negotiations with broker Peiris and Mohideen of thefact that Fowzie was concerned in this transaction. The transactionswere clinched between these two-persons and the 1st respondent. Itwas only after the 17th December 1981 that the 1st respondentbecame aware-of the role of Fowzie in these transactions. By thattime tenancy agreement (lR27(a) ) had been signed and the keysof the house handed over to Mohideen. By that time also the informalsale agreement (1R22) had been executed and earnest money received.He could not have resiled from the'tenancy agreement. He'Couldhave resiled from the saile agreement and faced''the”consequencesbut- this alone would not have helped to' clear‘ Him of wrongfulconduct if any there was. He completed the transaction as openlyand as lawfully as any vendor would have done. I cannot see anythingdishonest in his conduct throughout the transactions. I therefore holdthat the allegations of misconduct (grave or otherwise),'misbehaviour,and corruption, are unfounded and reject them. He has not compromisedhis position as a Judge of the Court of Appeal..
There is however' another aspect of the matter to be considered.'At , the time of these transactions Fowzie was one of those whoseconduct had been the subject of inquii^ by. the Commission. Thepublic was aware of this fact.. The proceedings of this Commissionwere of public importance and its proceeding? received wide, .publicity,in the country through, newspapers. Some,of the popular, ones gavefull coverage to its proceedings;..It is common knowledge; that .theywere keenly read .and followed by the reading public. Persons whoseconduct was in question were public men such as .Fowzie and otherpoliticians. The public at large was aware that notices had beenserved on them in terms of section 16. Those who read SessionalPaper VI would have taken it for granted that'such notice had beenissued on Fowzie. Neither they, nor the public, Would have knownthat this was a mistake. The public could not.,.have known, andindeed would be. ignorant of, the decision of the .Commission madein January 1980 not to proceed against Fowzie. That would be knownonly to the respondent and perhaps to a J$w;,,exclusive members ofthe staff. It has not been communicated 40 the president, to Fowzie
SC Bandaranaike v. De Atwis and others (2)(Sanuirakoon. C.J.) 673
or to the staff. In the public eye Fowzie was, and continues to be,a person whose conduct is, in the opinion of the Commission, amatter for inquiry and therefore still subject to its jurisdiction. It isnow stated that there is an insufficiency of evidence against Fowzieand therefore an investigation would not be justified and this factwill be incorporated in a final report to the President. A final reporthas not yet been sent to the President. The position may well changebefore it is sent. Shbttld such a situation arise the 1st respondentcannot take part in any decision concerning Fowzie. In any eventhe cannot now join the other Commisioners in making a report tcthe President affecting Fowzie. He must bear in mind the cardinalfact that these Commissioners are bound to act judicially not becausethey are in fact Judges of Superior Courts but because their decisionsinvolve consequences that affect the fights of the citizen. In thisinstance one of the most precious of them all i* involved, civic rights.The oft quoted statement of May, C. J. in the Irish Case of Reginavs Dublin Corporation (1) was repeated by Lord Atkinson andadopted by the House of Lords in the case of Everett vs. Griffiths
as no better definition of a judicial act could be found or given.It is as follows:-
“It is established that the writ of certiorari does not lieto remove an order merely ministerial; …… but it lies to
remove and adjudicate upon a validity of acts judicial.In this connection the term ‘judicial’'does,not necessarilymean acts of a judge or of a legal tribunal sitting for the'determination of matters of law, but for the purpose ofthis question a judicial act seems to be an act done bycompetent authority, upon consideration of facts andcircumstances, imposing liability and affecting the rightsof others. And if there be a body empowered by law toinquire into facts, make estimates to impose a rate on adistrict, it would seem to me that the acts of such a bodyinvolving such consequences would be judicial acts.”
Being judicial acts of Commissioners they are subject to controlby the Superior Court. High standards are expected of them, somuch so, that appearances sometimes become .‘‘more important thanreality”. Lord Hewart’s felicitous dictum gave expression to thisaspect of the matter. He said:
a long line of cases shows that it is not merely ofsome importance, but is of fundamental importance that
674Sri Lanka Law Reports(1982) 2 S.L.R.
justice should not only be done, but should manifestlyand undoubtedly ,be seen tQ. be. done”. Rex vs. SussexJustices, McCarthy, Ex parte. (3)
Lord Denning M. R. in Metropolitan Properties Co. (F.G.C.) Ltdvs. Lannon (4) referred to the operation of this principle thus:
“It brings home this point: in considering whether therewas a real likelihood of bias, the court does not look atthe mind of the justice himself or at the mind of . thechairman of the tribunal, or whoever it may be, who sitsin a judicial. capacity.. It does not look to see if therewas a real likelihood that he would, or did, .in fact favourone side at the expense of the other. The court looks atthe impression which would be given.tp other people.Even if he was as impartial as could be, nevertheless ifright-minded persons would think that, in the circumstances,there was a real likelihood of bias on his part, then heshould not sit. -And if he does sit, his decision cannotstand. There must be circumstances from which a reasonableman would think it likely or probable that the justice, orchairman, as the case may be, would, or did, favour oneside unfairly at the expense of the other. The court willnot inquire whether he did, in fact, favour one sideunfairly. Suffice it that reasonable people might think hedid. The reason is plain enough. Justice must be rootedin confidence:and confidence is destroyed when
right-minded people go away thinking: ‘The Judge wasbiased.’ ”
That was a case in which it was held that the Chaiiman of the. Rent Assessment Committee had an interest which was of a disqualifyingcharacter, it was conceded that there was no actual bias or want ofgood faith on the'part oif Mr. Lannon the Chairman. Yet there wasa real likelihorid of bias. The decision of the Committee was thereforequashed and < die inquiry remitted to another Committee. In deciding
the question of bias Lord Derihirig suggested the following test:-* . . •,- ..* • ■,
“Test it quite sunply:. If Mr. John Lannon were to haveasked any of his friends: ‘I have been asked, to presidein a case about the rents charged by the Freshwater Groupof Companies at Oakwood Court. But I am alreadyassisting my father in his case against them, about therent of his fiat in Regency Lodge, where I am living w:'!-
SC Bandaranaike v. De Alwis and others (2)(Samarakoon. C.J.) 675.
him. Do you think 1 can properly sit?',,TJje answer ofany of his good friends would surely have been: ‘No, youshould notsif.'Vtfu are already acting, or as 'good asacting, against them. You should not, at the' same time,sit in judgment onthertv””
A similar question can be asked of the 1st respondent. Can heproperly continue to sit in judgment over Fowzie? Can he take partin making the final, report to the President? The answer is clearly‘No*. There, is both a real likelihood and a reasonable suspicion thathis judgment was warped by favouritism though, .1 repeat, there isno proof of that. I would therefore issue a writ, of prohibitionforbidding the 1st respondent from taking any further part in theinvestigation of the conduct of Fowzie and also prohibiting him fromjoining the other Commissioners in a final or other Report to thePresident which incorporates a decision regarding Fowzie.
The petitioner however will not be satisfied with such an order.He has prayed • for a writ of prohibition restraining and preventingthe 1st respondent from continuing as a member of the Commission.This writ of prohibition is used to prevent the exercise of jurisdictionover a particular matter or dispute. It cannot be used to remove aperson from office and I have found no instance of such user in thepast. I cannot-therefore accede to this part of the'.petition. I howeverdesire to state'°that that confidence in which' justice is rooted hasbeen destroyed :as far as the investigation of Fowzie is concerned.Right-minded-people would not be unjustified if they look askanceat other decisions of the 1st respondent. It might undermine thatfaith- in the Commission itself which is necessary to command respectfor its recommendations. This must be avoided, whatever the cost.
Two other matters need decision. It was contended that thepetitioner has no right or interest to maintain this application andto seek the reliefs claimed. This is a matter of public importanceand it is in the public interest to ensure that machinery set up byGovernment in the interest of good order should function -properly.Accordingly the Court can award this remedy to any member of-thepublic. (“Administrative Law” by Wade, Edn4, page 541 and 542).J;-
Lastly it was contended that this Court “by reason of the provisionsoi section 18A(2) of Act No. 4 of 1978 has no power or authorityto make order prohibiting or to'make any order which would havethe effect of prohibiting, the holding of any proceedings by the
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Special Presidential Commission". Section 18A(2) reads thus –
“18A(2) No Court shall,' notwithstanding anything to the contrary,have power or jurisdiction to make, any order at any stagewhatsoever and in any manner –
staying, suspending or prohibiting the holding of any
proceeding before or by any commission established bywarrartt issued by the President in the exercise or purportedexercise of the powers vested in the President under section2(1) or themaking ofanyorder,finding;report,
determination, ruling or recommendation by any suchcommission;'
setting asideor varyinganyorder,finding,report,
determination, ruling or recommendation of any suchcommission:
Provided that where by reason of the provisions ofsubsection (1) any application stands transferred to theSupreme Court, such court may, only upon finaldetermination of such application, make any such orderwhich, in the lawful exercise of its jurisdiction, such court maymake:
Provided further, that where an application does notstand transferred by reason of the provisions of subsection(1), the Court of Appeal may, only upon final determinationof such application, make any such order which in thelawful exercise of.its jurisdiction, such court may make,subject however, that such order shall take effect onlyupon final determination . by the Supreme Court inaccordance with.; and subject to such order which theSupreme Court may make or where no appeal is filed,only upon the expiry'of the period within which an appealmay be filed in the' Supreme Court."
This Court is exercising a jurisdiction conferred by Article 140 ofthe Constitution' by reason of the transfer of this application to thisCourt from the Court.of Appeal (vide section 18A(1) of Act No. 4of 1978). That jurisdiction is being exercised in accordance with theprovisions of the first proviso to section 18A(2). This order does notpurport to or have the effect of staying, suspending or prohibitingthe holding of any proceeding before or by the Commission or themaking of any order, finding,- report, determination, ruling orrecommendation by the Commission. Nor is the validity of theWarrant in any way nullified. The Commission can continue its work
SC Bandaranaike v. Pc Alwis aru! others (2) (Wimalaratne, J.)577
unhindered. (Vide section 2(1 )(2) and (3) of Law No. 7 of 1978).Nor is this Court being asked to make any decision contraveningthe provisions of section 18A(2)(b). It is merely prohibiting one ofthe Commissioners from acting in circumstances. What intrinsic worthany recommendation already' made, or that will be made, in thefuture will have is not a matter for this Court. That must be judgedby those who seek to impose punishments on the basis of suchrecommendations.
I have given careful consideration to the question of costs. •Thepetitioner has acted as a public man in the interests of the public.He has partially succeeded. This is one of those applications in whichmonetary matters should find no place. I therefore do not make anyorder for costs. A writ of prohibition will issue in the terms indicatedabove.
WIMALARATNE, J.
I have had the benefit of reading the judgment prepared by theChief Justice. I am in agreement with his findings that –
even after the alleged decision of the Special PresidentialCommission in January 1980 not to proceed with the caseagainst Fowzie, the notice 1R3 issued to Fowzie was notrevoked in fact or in law, and it remains operative up to date;
the public could not have known, and indeed would beignorant of, the decision of the Commission made in January1980 not to proceed against Fowzie;
Fowzie was, and continues to be, a person whose conductis, in the opinion of the Commission, a matter for inquiry,and therefore still subject to its jurisdiction;
the confidence in which justice is rooted is destroyed asfar as the investigation of Fowzie is concerned (subject towhat I have to say about investigations against other persons);
right minded people would not be unjustified if they lookaskance at other decisions of the 1st respondent; and thatit might undermine that faith in the Commission itself,which is necessary to command respect for its re-commendations;
this (loss of faith) must be avoided, whatever the cost.
this Court is possessed of jurisdiction to award the remediesprayed for by the petitioner to any member of the public; and
this Court has the jurisdiction to issue the prerogative writsagainst the Special Presidential Commission or any member
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thereof, by virtue of the First Amendment to the Constitution,read with section 18A(1) of the amending Act, No. 4 of 1978.
For these, among other.reasons, the Chief Justice is of the viewthat the issue of a writ of prohibition forbidding the 1st respondentfrom taking any further part .in tjie investigation of the conduct ofFowzie, or from joining the. other Commissioners in a final or otherreport to the President which incorporates a decision regarding Fowzieis justified on the ground of bias. In the result, there will be noimpediment to the 1st respondent taking part in other investigationsagainst other persoris, and in joihing the other Commissioners in areport to the President'-as long1 as* if 'does riot' incorporate a decisionon Fowzie.
I may say straightaway that the Commission has already madmanaffidavit stating that they do not propose proceedings against Fowzie.Under these circumstances the issue of a writ of prohibition for thelimited purpose as contemplated by the Chief Justice does not,- inmy view, serve the ends of justice. How then, can those right mindedpeople who, in the words of the Chief Justice, “would not beunjustified if they look askance at other decisions ol the 1st respondent”be satisfied? How can the undermining of the confidence in therecommendations of the Commission be avoided at all costs, whichis the very laudable objective to be achieved? The dictum of LordDenning thatJ “justice must be rooted in confidence” must not be amere empty catchwor^Bias is not the only ground of disqualification;misconduct is a more sbribus ground. No amount of canons of judicialconduct mouthed at judicial seminars., ho amount of prescriptions onjudicial ethics written .in1 law journals will serve any. purpose unlesswe insist that these seif same commandments are complied with.Those performing judicial and' semi-judicial functions should be madeaware that we give a meaning to the words “justice iriusLbe rootedin confident”; and justice can never be rooted in confidence if theywho administer justice engage in dealings, financial dealings or landtransactions, with those who are litigants before them.
The main argument of the petitioner has been that the 1st respondentis disqualified, not on the ground of bias, but on the ground ofmisconduct, that as a result of a financial transaction between the1st respondent and Fowzie, whilst the latter was yet a person, whoseconduct was the subject of, investigation by. the .Commission of whichthe,,1st respondent is a. member,,. the. 1st respondent “became .unableto act”, in terms Qf.secjtipn 30) of the Special Presidential. Commissionsof Inquiry Act. In such situations the President, as the authority
SC Bandaranaike v De Alwis and others (2) (Wimalaratne, J.)679
vested with the power to appoint, has the power to remove a memberwho has so become unable to act, and to appoint in' his place anew member. If no new member is appointed section 3(2) empowersthe remaining members of the Commission to cdritirflie with theinquiry. Apart from removal by the President, the petittoner cbntehdsthat there is a judiciaF power vested in this Court to1 declare'that amember has become unable to act. He submits that'the words “unableto act” should not be limited to physical, or mental disability suchas prolonged illness or absence. He invites us to give the phrase awider interpretation so as to include within its compass the case ofa member who, by his misconduct, renders-himself unable to. act.In such a case removal:.-by.:theuPresident of the member concernedis one remedy.. A judicial (declaration that that member, has-becomeunable to act is another. *>i';j,,.
I am of the view that pur judicial power extends to the makingof such a declaration. As an illustration let us take' the ‘extremehypothetical case of a member, either of the Special presidentialCommission or of a Commission of Inquiry,? against whom a primafacie case of bribery has been established.' ^Sucli a member whorefuses to resign may be removed by the President. Quite apart fromsuch removal by the Executive, the_ Judicial Power, of the State isvirile enough to declare that such ' member has become unable toact. The jurisdiction to make such declaration is vested in this Courtby Article 140 of *the Constitution/ read with amending Act No. 4of 1978. The jurisdiction to issue^ tfie writ of quo warranto is at thepresent time the jurisdiction, to make a declaration, for quo warrantohas, in England, been replaced by declaration and injunction, byvirtue of section 9 of the Administration of Justice (Special Provisions)Act' of 1938 – Wade – Administrative Law (4th Ed.) 497.
Do the circumstances justify, the making, of such a declaration,,inthis case? Evidence was led before the. Commission in about September1978. That evidence received wide publicity in the media.The.’CeylonDaily News’ of 2.9.78, for example, carried the following headline“Fowzie obtained concessions for people.in whom he had an interest”Details of Mayor Fowzie’s alleged intermeddling in certain customsdetections and inquiries, as deposed to by an Assistant Collector ofCustoms, W. H. Jayawardene, as well as acts of abuse of powerdeposed to by B. A. Jayasinghe, Municipal Commissioner, aridTyrellGiinatilleke S.P. CID Were widely reported in the press. Any ri^htrtimded person would have formed the view that the'conduct'ofFowzie'deserved investigation by the Commission. The Commission
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also formed the opinion that Fowzie should face an inquiry. That iswhy the Commission issued charges and sent Fowzie a copy of theevidence relating to .-him along with the notice 1R3 dated 1.11.78.If then, charges of -a serious nature were pending against Fowzie,any right minded person would expect no member of the Commissionto have any dealings whatsoever with Fowzie even after the inquirywas over,- and not' at least till a report was sent to the President.The act of a member in entering into a land transaction with aperson whose conduct remains the subject of inquiry amounts, inmy* view, to misconduct.
But the Commissioners in their affidavits aver that they decidedin January 1980 not to proceed further against Fowzie because of
the death of B. A. Jayasinghe. who they say would have beenthe main witness against Fowzie, and (b) the findings of the G. P.A. Silva Commission set up to inquire into abuse of power in localauthorities, and the consequential civic disability imposed upon Fowzieby Parliament. It is not for us to question the soundness of theabove. reasons given by the Commission for its change of opinion,but we note that both these events, namely, the death of B. A.Jayasinghe (on 22.9.78) and the imposition of civic disability onFowzie (on 14.8.78) had. already occurred when the Commission firstdecided to frame charges against Fowzie on 1.11.78. What is importantis that in the eyes of the public Fowzie, like Pathirana, Manoharaand Wickramanayake continued to be a person whose conduct yetremained to be investigated by the Commission. No amount ofprivate, uncommunicated decisions arrived at by the Commissionwould suffice to erase the impression the public would have had thata prima facie case of a abuse or misuse of power had been establishedagainst Fowzie. A. member of the Commission who enters into atransaction, which involves the sale of a house and a lease of anotherhouse to the daughter and wife of Fowzie, and in respect Of whichconsideration was paid by Fowzie himself cannot expect to commandthat degree of public confidence which is a sine qua non for theproper functioning of the Commission.
A few words about the transaction itself. The 1st respondent aversthat the first two instalments of Rs. 10,000/- each as advance purchaseprice for one of the houses was paid on 6.12.81 by one A. H. M.Mohideen, and that the deposit of Rs. 39,000/- as six months rentfor the other house was also paid by Mohideen on 16.12.81. It wasonly on 16.12.81, according to the 1st respondent, that he came toknow that the purchaser of one house was to be the daughter of
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A.H.M. Fowzie and that the tenant of the other house was to bethe wife of Fowzie. By that time he says it was too late to resilefrom either transaction, becaue he had entered into an informalagreement for the sale of one house to Mohideen or his nomineefor- a sum of Rs. 575,000/- and had handed over the keys of theother house to Mohideen. The deed of transfer No. 230 was executedsix months later, on 11.5.82. According to the attestation clausehowever, the two instalments of Rs. 10,000/- each were paid before1.1.82 by A.H.M. Fowzie. There is also the fact that no referencehas been made in the deed of transfer to a previous informalagreement. As the 1st respondent says he had a copy of the informalagreement with him, and as the payments were all cash payments,one would have expected the date of payment of the Rs. 20,000/-;to have been mentioned; instead there is a vague statement that thatamount was paid prior to 1.1.82, which could even be interpretedas being a date in 1980. There is therefore, no satisfactory proofthat the 1st respondent was not aware about the interest that Fowziehad in these transactions until 16.12.81. Even if such knowledgedawned on him on that date, it was open to him to have paid backthe Rs. 20,000/- and resiled from the agreement to sell on the groundthat the virtual purchaser was a litigant before him.
As emphasised by the Chief Justice, loss of public confidence inthe Commission must be avoided, whatever the cost. I am of theview that that objective cannot be achieved by merely prohibitingthe 1st respondent from participating in any inquiry against Fowzie,because the Commissioners themselves tell us that they have decidednot to proceed against Fowzie. It seems to me, therefore, that, oneway by which this objective could be achieved is by the exercise, ofthe judicial powers vested in us by Article 140 of the Constitution,and declaring that by his misconduct the 1st respondent has becomeunable to act as a member of the Commission in terms of section3(1) of the Special Presidential Commission of Inquiry. Act. I wouldmake the declaration accordingly, and grant the petitioner prayer (a)of the petition.
I have given careful consideration to the relief prayed for in para
. A writ of prohibition restraining the 1st respondent fromparticipating in any further proceedings of the Commission wouldvirtually amount to a removal of the 1st respondent. Such power ofremoval is an executive power, vested exclusively in the President.I would, therefore, not grant the relief prayed for. in para (b).
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On the question of costs, every citizen has a “standing” to invitethe Court to prevent some abuse of power, and in doing so he mayclaim to be regarded not as a meddlesome busybody, but as a publicbenefactor – Wade 544.
■..I’
As the petitioner has succeeded in obtaining part of the reliefprayed for, 1 would allow him half the costs of this inquiry payableby the 1st respondent.
coun-thome, j.
I have had the advantage of reading the judgments of the learnedChief Justice and Wimalaratne, J. .
The Legislature passed the amending Act No. 4 of 1978 withretrospective effect from the date of the operation of Law No. 7 of1978. The amendment to section 2 provided that , a Warrant issuedunder section 1 .may relate to any period whatsoever including anyperiod before the date of commencement of this Law. In otherwords, the amending Act No. 4 of 1978 by retrospectively ensuringthe legal validity of the Warrant from, the 29th of March, 1978,automatically validated all acts..and steps taken earlier under it.Therefore, the section 16 notice.,. 1R3, dated 1st November, 1978,served on A.H.M. Fowzie, remained valid in law and in fact fromthe date of its issue, and has‘never been subsequently revoked upto date. By no stretch of imagination was it revoked by the letterto- Fowzie, 1R5, whidh merely informed him of the postponementof the inquiry against, him, as another inquiry has been given priority.The respondents were well aware of this. I agree with the learnedChief Justice that the legal validity of the notice 1R3 and its operativeeffect are in no way undone by IRS, and this notice 1R3, therefore,remains valid in law from the date of its issue.
' In this context the financial transactions between the 1st respondentand'Fowzie took place while theSection 16 notice 1R3 remained.valid.
The 1st respondent has Stated in paragraph !13 'bf his affidavit thatthe Commissioners had decided – “in January 1980 riot'1 to*'tklcte dnyfurther steps against Mr.A.H.M. Fowzie” for the reasons that theprincipal witness B. A. Jayasinghe who had testified against Fowziehad died and that the G. P. A. de Silva Commission-had alreadydealt with Fowzie in relation to the administration of the ColomboMunicipal Council. Thesje reasons were supported by the joint affidavitof the 2nd and 3rd respondents and the letter of the Commissionersto the President dated 4th June, 1982.
SC Bandaranaike v. De AMs and others (2) (Colin Thome. J.)683
An unsatisfactory feature of these averments was that it was notdisclosed to the President or to this Court in the affidavits of therespondents that serious allegations had been made against Fowzieby W.H.D. Jayawardene, Assistant Collector of Customs, that ontwo occasions Fowzie had interfered with the investigations conductedby-Customs Officers into, alleged smuggling offences and that Fowziehad actually abetted the offence of smuggling in one case by causingthe disappearance of two large suitcases from the Customs premises.
-The death of B.A. Jayasinghe. and the G.P.A de Silva Commissionin relation to the administration of the Colombo Municipal Councilhad nothing to do with these grave allegations against Fowzie.
It is also significant that the notice 1R3 served on Fowzie wasdated 1st November, 1978, and it informed him that his “conductshould be the subject of inquiry: and/or (that he) was implicated orconcerned in the matters under inquiry, by the Commission.” B. A.Jayasinghe died on the 22nd of September, 1978, before the despatchof this notice to Fowzie.
The 1st respondent has stated in paragraph 28 of his affidavit thatearly in December, 1981; when he visited No. 4, Anula Road, EbertPeiris, a broker, came with A.H.M. Mohideen, and a third manwho remained in solemn silence without being identified. Mohideenoffered to purchase the smaller of the two premises at No. 4, AnulaRoad, for Rs. 575,000/- and to take on rent premises-No. 542/1,Havelock Road, for Rs, 6,500/- per month. He- also-offered tt>j depositRs. 39,000/- being 6 months-advance of rent. There was>no-agreementat the start, but on 6th December, 1981, when Ebert Peiris contactedhim again he was agreeable to accept the offer. That afternoon Peirisand Mohideen paid him an advance of Rs. 10,000/- as an advanceon the sale. Mohideen told them that the purchase would be as adowry for his niece, whose name was not disclosed to the 1strespondent. The next day he telephoned, M°hideen and requested afurther Rs. 10,000/-. Mohideen gave him the money as agreed, atNo. 4, Anula Road.
On the 16th of December, 1981, Mohideen brought him a furthersum of Rs. 39,000/-. Later that night Mohideen .telephoned.him athis residence and stated that the tenancy agreement would be in thename of his sister-in-law Mrs. Shakeena Beebe Fowzie.-He prepareda document accordingly and having signed it handed the'agreementand the keys of the premises No. 542/1, Havelock Road, to Mohideen.Then he came to know on enquiry that Mrs. Fowzie was the wife
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of A.H.M. Fowzie and the niece referred to earlier was his daughter.It was only at about this time that he came to know that the thirdman who accompanied Peiris and A.H.M. Mohideen on the 6thDecember was none other than A.H.M. Fowzie.
Even , after he canie to know that it was A.H.M. • Fowzie heproceeded with the transaction and accepted from Fowzie four furtherinstalments amounting to over 5 1/2 lakhs of rupees. All six instalmentswere paid to the 1st respondent in cash. They were not paid in thepresence of a Notary.
Although the 1st respondent has averred in his affidavit that the1st two instalments were paid by Mohideen, the attestation Clauseof Deed No. 230, executed on 11th May, 1982, discloses that all sixinstalments were paid by Fowzie.
All these, transactions were carried on while the section 16 noticeagainst Fowzie vyas still in force and as there were allegations ofserious offences committed by him, I hold that fhe 1st respondentwas guilty of misconduct unbecoming of a judicial officer.
1 allow,the application of the petitioner to issue a unit of quowatTanto to the 1st respondent under the proviso to Article 140 ofthe Constitution, read with section 18A of. Act No. 7 of 1978, anddeclare that, the; 1st respondent has become unable to act, and thathe is disentitled to hold the office and function as a Member of theSpecial Presidential Commission of Inquity.
I agree with the order made by Wimalaratne, J., in connectionwith the petitioner’s prayer under (a) and (b) and (c).
Writ of prohibition issued.