070-NLR-NLR-V-51-DE-MEL-Petitioner-and-M.-W.-H.-DE-SILVA-Respondent.pdf
GRATIAEN 3.—deMtl v. M. H H. <U Silm
1949Present: Gratlaen J.
BE MEL, Petitioner, and M. W. H. BE SILVA, RespondentS. C. 564—Application for a Writ of Prohibition
Writ of Prohibition—Special tribunal entrusted with judicial powers and duties—Procedure not provided for—Procedure to be fottoued—Commissions of Inquiry-Act of 1948.
When a tribunal other than a court of law ig vested with legal authority todetermine questions affocting the rights of parties, but the procedure whichit should adopt is not expressly prescribed by statute, the tribunal is masterof its own procedure, provided, however, that the essontiul requirements ofjustice and fair play must bo observed.
In the absence of special provisions as to how the tribunal is to proceed,the law will imply no more than that the substantial requirements of justice •/hallnot be violated. It must give the party who may be affected by its decisionon opportunity of being heard and of stating his case. Jt must give him noticewhen it will proceed with the matter, and it must act honestly and impartially,and not under the dictation of some other person or porsous to whom theauthority iR not given by law. There must he no malveraation of any kind.There would )>e no decision within the meaning of the statute if there woreanything of that, sort done contrary to the essence of justice. "
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X HIS was an application for a Writ of Prohibition against the respon-dent who was appointed to investigate and report in regard toalleged prevalence of bribery and corruption among the membersof the Colombo Municipal Council. The petitioner, who was called uponto meet twenty-seven separate allegations of corruption, alleged thatt he procedure adopted by the respondent was objectionable and taintedwith bias.
//. V. Perera, K.C., with S. Nadesan, D. S. Jayawickrama, C. S.Barr Kumarakvlasinghe and K. C. NadarajaJi, for the petitioner.
Cur. adv. vult.
December 5, 1949. Gratiaen J.—
This matter was fully argued before me on November 25, 1949, bylearned Counsel who appeared in support of the petitioner's application.Two questions arose for my decision :—
Whether, in view of relevant legislation under which the respondenthas been appointed to investigate and report on certain matters ofpublic interest connected with the alleged prevalence of bribery andcorruption among the members of the Colombo Municipal Council sinceDecember 2, 1943, it is competent for this Court in an appropriate caseto issue a mandate in the nature of a writ of prohibition to prohibit himfrom holding an inquiry into an allegation that a particular Councillorhad acted corruptly in a manner specified by section 5 (1) of the BriberyCommission (Special Provisions) Act, No. 32 of 1949.
Whether the facts set out in the petitioner’s affidavit filed in theseproceedings afford prima facie grounds for holding that the respondenthas divested himself of jurisdiction to inquire into allegations that thepetitioner had on twenty-seven separate occasions corruptly given sumsof money or other gifts to various Councillors for the purpose of inducingthem to exercise their respective vofes in his favour at Mayoral elections.
GRATIAEN J.—de Mel v. M. W. H. de Silva
283
The first of these questions was one of sufficient difficulty and importancein my opinion to call for a decision of a fuller Bench. That question hasnow been answered by a Divisional Court of three Judges in the affirmative1.It now remains for mo to consider whether, in the circumstances of the'present case, I would be justified in issuing a rule nisi against therespondent on the grounds relied on by the petitioner. For this purposeI must, of course, assume for the time being that the relevant andadmissible facts Rwom to by the petitioner are true in substance and infact.
It is not suggested that when the respondent originally entered uponhis commission he lacked jurisdiction to hold an inquiry into allegationsof corruption in respect of which any single adverse finding would,,upon due publication in the Government Gazette, result in the petitionerbeing deprived of important civic rights. The gist of the petitioner’scomplaint, however, is that the procedure which the respondent has so faradopted in the discharge of his functions has been such that it is nowimpossible for the respondent to hold a fair and unbiased inquiry into thetwenty •seven allegations of corruption framed against the petitioner.In that state of things, it is contended, it would be contrary to all principlesof natural justice for the respondent to sit in judgment over the petitioner.There is no doubt in my mind that should there be substance in thiscomplaint, this Court should not hesitate to prevent a person chargedwith functions of a judicial nature from exercising them in an atmospherein which there is a reasonable likelihood of his being biased against theperson over whom he proposes to sit in judgment. In such casesa superior Court is not so much concerned with the questionwhether the party to the proceedings believes that the pendinginvestigation may turn out to be what the petitioner’s Counsel describesas “ a mock trial with the verdict pre-determined The real question,as Swift J. pointed out in Rex v. Essex Justices 2, is whether a reasonableman might apprehend that the tribunal may not be impartial and unbiased.If in the present case the earlier procedure adopted by the respondentin the course of his investigations has already placed him in such aposition as to create a reasonable suspicion that justice may not bedone to the petitioner, it follows that the respondent has divested himselfof jurisdiction to proceed with the inquiry. Rex v. Sussex Justices 3.That ‘‘ justice must not only be done but must manifestly and undoubtedlyseem to be done ” is no doubt a somewhat trite phrase, but as a principleof law it remains an undisputed expression of one of the eternal verities.
Before I proceed to examine the petitioner’s complaint, it will beconvenient if I first consider the scope of the respondent's functions inrelation to the various matters wliich he has been appointed to investigate.The Governor-General has considered it to be u in the interests of thepublic welfare” that inquiry should be made (1) as to whether any memberof the Colombo Municipal Council had cither corruptly solicited, receivedor agreed to receive, or on the other hand had corruptly given, promised oroffered any gifts, loan, fee, reward or other advantage as an inducementto influence official action ; (2) as to what steps should bo taken to
1 (19#9) 51 X. L. R. 105.•* (J927) 2 K. B. 475.
* (1924) 1 K. B. 256.
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GKATIAEN J.—dc Met- v. M. W. H. de Silva
prevent or check such bribery and corruption in the future. Therespondent was selected as a suitable person to carryout this comprehensiveinvestigation, and lie was authorised “ to hold all such inquiries and makeall such investigations into the aforesaid matters as may appear tohim to be necessary ” for the purpose- It is very apparent that therespondent has been entrusted with duties involving a wide range ofinvestigation standing in sharp contrast to the scope of strictly judicialduties which arise when a Court of law, with no previous knowledge ofthe facts, has to adjudicate upon clear cut issues submitted for its decisionby parties to contentious litigation. The Commissions of Inquiry Act of1948 in terras of which the respondent was appointed vests him withample powers to summon witnesses and, if he chooses to do so, to requireevidence before him to be recorded on oath or affirmation. Statutoryprovision is also introduced to protect him from interference or obstructionin the performance of his functions, and offences of “ contempt ” com-mitted in disrespect of his authority ore expressly made punishable by law.Various other means have been devised to compel members of the publicto assist him to carry out his investigations as expeditiously as possible.While his statutory powers are wide and varied, the procedure which hemust follow in executing his commission is, however, nowhere laid down,except that section 14 of the Act requires him by necessary implication topermit any person “ whose conduct is the subject of inquiry or who isin any way implicated or concerned in the matter under inquiry ” to belegally represented at the whole of an inquiry. In all other respects,if I may adopt the language of Lord Chancellor Simon in General Couftdlof Medical Education v. Spademan *, he is •* not a judicial body in theordinary sense, and is master of his own procedure Indeed, section 7 (d)of the Ordinance docs not even require him to be bound by strict rules ofevidence. It is true that the later Act of 1949 has, in accordance with tileruling of a Division Bench of this Court, vested him with “ legal authorityto determine questions affecting the rights of subjects and imposedon him “ the duty to act judicially ”• Parliament has neverthelessbeen content not to place any additonal fetters on his discretion nor hasit chosen to regulate the procedure which he should adopt when heinquires into any specific allegations of corruption against a Councillor.
What then is the resulting position ? Although the Legislature issilent on the point, does the law charge the respondent with any specialduty in regard to the manner in which he should act “ judicially ” whenhe enters upon an inquiry into allegations against the petitioner or anyother Councillor ? Certain general principles affecting the questionhave been laid down from time to time by the House of Lords in England,and serve as an authoritative guide for tribunals in other countries inwhich the same ideals of “ natural justice ” are enshrined. As LordLorebum said in Board of Education v. Rice2, the respondent “ mustact in good faith and listen fairly to both sides (if there be two sides to adispute) for that is a duty lying upon everyone who decides anything ”.In the words of the dissenting judgment of Lord Sumner (then Hamilton
J.) in Rex v. Local Government Board ; ex parte Arlidge 3 the procedure‘ {1943) A. C. 627.» (1911) A. C. 179.
» S3 L. J. Q. B. 86 at page* 107 to 110.
GRATIAEN 3.—<U Md v. M. W. H. At Silva
285
of a tribunal charged with judicial functions such as those of the respondent** must necessarily be judged by standards different from those of ordinaryCourt of Justice He must give the party who may be affected bythe decision “ the fullest opportunity of knowing what he has to meetand of meeting it … . and of correcting or contradicting thecase against him put at its highest by the witness at the inquiry ”.Lord Sumner’s view was upheld by the House of Lords. Vide LocalGovernment Board v. AtUdge1. The tribunal “must act judicially ",said Lord Haldane, “ in the sense that it must deal with the questionreferred to it without bias, giving to each party an opportunity of presentingits case adequately. The decision must be come to in the spirit and withthe sense of responsibility of a tribunal whose duty it is to mete outjustice. But it does not follow that the procedure of every tribunalmust be the same. In the case of a Court of law tradition has prescribedcertain principles to which in the main the procedure must conform.But what that procedure is to be in detail must depend on the nature ofthe tribunal …. When therefore Parliament entrusts (a tribunalother than a Court of law) with judicial duties, Parliament must be taken,in the absence of any declaration to the contrary, to have intended it to follow(he procedure which is its own, and which is necessary if it is to be capableof doing its work efficiently Referring to the earlier case of Board ofEducation v. Rices, Lord Haldane thought that the Board was entitledto obtain information in any way it thought best “ provided that it gavea fair opportunity to a party to the controversy to correct or contradictany relevant prejudicial statement The opinion of Lord Shaw inthe Arlidge case is no less apposite. The tribunal which is not a Court-of law in the ordinary sense “ must do its best to aot justly and to reachjust ends by just means ”, he said. H If a statute prescribes the meansit must employ them. If it is left without express guidance it must still,act honestly and by honest means. In regard to these, certain waysand methods of judicial procedure may very likely be imitated; andlawyer-like methods may find especial favour with lawyers. But that thejudiciary should presume to impose its own methods on (other tribunateset up by Parliament) is a usurpation, and the assumption that themethods of natural justice are ex necessitate those of Courts of justiceis wholly unfounded ”,
In Spademan's case 3, the House of Lords again had occasion to make apronouncement on the duty imposed on a tribunal, vested with legalauthority to affect the rights of parties, to observe the principles of" natural justice ” in the sense in which the term is used “ in contrastwith any formal or technical rule of law or procedure Lord Wright,following the observations of Lord Selboume in an earlier case, adoptedthe view that “ in the absence of special provisona as to how the tribunalis to proceed, the law will imply no more than that the substantial require-tnen/s of justice shall not be violated. It muBt give the party who may beaffected by its decision an opportunity of being heard and of stating hiscase. It must give him notice when it will proceed with the matter,,and it must act honestly and impartially, and not under the dictation1 {1916) A. C. 120.* {1911) A. C. 179.
* (1943) A. C. 627.
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ORATIAEN J,—da Mel v. M. »V. H, <U Silva
of some other person or persons to whom the authority is not given bylaw. There must be no malversation of any kind. There would be nodecision within the meaning of the statute if there were anything of thatsort done contrary to the essence of justice As Lord Wright put it,
“ the essential requirements of justice and fair play " must be observed.
So far as 1 can understand the rase of the petitioner in the presentapplication, the procedure adopted by the respondent and criticised bythe petitioner as objectionable is as follows. At the preliminary stagesof his investigations, there were of coime no parties to a dispute in thesense which is familiar in litigation proper. It therefore became necessaryfor the respondent to call for and collect such information as lie couldfrom every available source for the purpose of deciding whether anyallegations of corruption which might be made against any particularCouncillor merited investigation at all. At this stage he decided inthe exercise of his undoubted discretion to receive information in cameraand in some cases, apparently, an oath or affirmation was receivedbefore their statements were recorded. I cannot agree that eitherthis process or the refusal to permit an informant or a witness to belegally represented during what might be described as the exploratoryperiod of the respondent’s investigation was in any sense improper orunjust. At the next stage of his investigations he decided to hold aformal inquiry into the allegations of corruption against each particularCouncillor whose conduct in his opnion called for a full investigation.Some of these inquiries have already been held, and in each instance theCouncillor concerned, against whom an adverse decision might resultin a deprivation of civil rights, was not denied the opportunity of legalrepresentation as required by section 14 of the Act of 1948. In somecases, apparently, an allegation implicated two Councillors, one as thecorrupt receiver and the other as the corrupt giver of a bribe. In regardto such an allegation, it became necessary to record a specific and, in myjudgment, a separate decision as to the alleged corrupt intentions of thealleged giver and the alleged receiver respectively of the alleged bribe.The inference which I draw from the facts deposed to in the petitioner’saffidavit is that in these instances the respondent had decided to giveeach “ acoused ” person (if I may use that term) an opportunity of meetingthe imputation on his own character without the embarrassment ofhaving the inquiry complicated by a contemporaneous investigationinto the alleged motives of the “ co-accusedWhether this be the
ideal procedure to adopt in such a case, it is not for me to say but forthe respondent to decide in the exercise, of his discretion. All. that I needhold, and all that I do hold, is that I cannot see how this procedure canbe held to violate the principles of natural justice which the respondentis bound by law and by the dictates of his own conscienco to observe.Indeed, if I may presume to say so, it is fairly clear that, in a hypotheticalcase, Councillor A might well consider it highly prejudicial to his interestsif, in meeting an allegation that he had received a single bribe fromCouncillor B, he were tried together with Councillor B who has to facenot only the charge of bribing Councillor A but additional charges ofhaving systematically bribed other Councillors as well. There is noprovision for the case of each Councillor to be tried by a separate tribunal.
GRATIAEN J.—<fc Mel v. M. W. H. de. Silva
In the present case the petitioner has been called upon to meettwenty*seven separate allegations of corruption. Some of these havein a sense been investigated in his absence (whether finally or not I donot know), but only, so far as I can see, with special reference to themotives of the alleged receiver of an alleged bribe. It has been argued for‘the petitioner that he was at any rate “ implicated or concerned in ”the matters under inquiry in these earlier proceedings within the meaningof section 14 of the Act of 1948, and that he was therefore entitled to berepresented by his own lawyers at those inquiries. He complains thathe was not given formal prior notice by the respondent of the nature•of any of the allegations which “ implicated ” him, and that he thereforehad “ no opportunity to be represented by Counsel or to participate in ”those inquiries where he has been implicated. The petitioner does notgo so far as to assert that he did not in fad have knowledge from someother source that inquiries were being held into the conduct of otherCouncillors whom he is alleged to have bribed. Speaking for myself,t regret that I find it very difficult to satisfy myself that the procedurewhich the respondent had chosen to select for discharging the Commission-entrusted to him had not become clear to the petitioner at a very earlystage, and that the desirability or otherwise of applying for permissionto be represented on each of those earlier occasions had not been submittedfor the consideration of the very distinguished and competent legaladvisers in charge of his ease. The petitioner’s affidavit is notcommunicative on this point.
The petitioner states in his affidavit that he “ verily believes that therespondent has already recorded his findings on the allegations relatingto the transactions ” in which other Councillors are accused of havingreceived bribes from him. If this statement of belief could be construedas a factual assertion that the respondent has already arrived at anex parte decision that the petitioner is guilty of any of the twenty-sevenallegations which he has been called upon to meet, I would not havehesitated to issue a rule nisi against the respondent, for in that eventthe essential pre-requisites of impartiality in the pending inquiry mustnecessarily be ruled out, and the case would prima facie resolve itselfnot so much into a question of “ reasonable suspicion ” as of a certaintyof bias. The affidavit however falls very short of making any suchassertion, even if the petitioner’s mere statement of what he believes,without any indication of the. grounds of his belief, had any relevancy at all.
In my opinion the petitioner had not made out a prima facie case tojustify a rule nisi to prevent the respondent from holding an inquiryinto the allegations of corruption which he has been called upon to meet.There is no reason of any kind, on the basis of the facts submitted tothis Court, for holding that he will not be given the fullest opportunityof meeting these charges at a properly conducted inquiry, at which hemay be legally represented in accordance with his statutory rights. Nogrounds, supported by legally admissible evidence, exist for apprehensionthat the principles of natural justice have or will be violated, or that therespondent has pre-judged the case. The respondent has been entrustedby the terms of his commission with onerous duties, and Parliament
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GRATIAEN 3.—de Mel v. M. W B. de SUva
has thought fit to superimpose on his functions the responsibility, shouldthe necessity arise, of making decisions which would automaticallyaffect the civic rights of persons selected by their constituentsto administer the affairs of an important local authority. Nothing hasbeen urged before me which entitles me to suspect that the confidencereposed in the respondent by the Governor-General and presumablyshared by the Parliament which passed the Act of 1949 has been abused.Nor do 1 contemplate that there is a risk that the decision of therespondent, in dealing with the petitioner’s case, would be influencedby the evidence of witnesses whom the petitioner will not be permittedto cross-examine at the pending inquiry. The apprehensions of biaswhich the petitioner claims to entertain are not based on substantialgrounds. I therefore refuse his application for a mandate in the natureof a writ of prohibition against the respondent.
Application refused.