IN RE R. RATNAGOPAL

093-NLR-NLR-V-70-IN-RE-R.-RATNAGOPAL.pdf


In re Ratnagopal
409
Present:H. N. G. Fernando, C.J., T. S. Fernando, J.,and Tambiah, J.
In re R. RATNAGOPALAPNjOEN/2 of 68—In the matter of a Rule under Section 47 of
the Courts Ordinance
Commission of Inquiry—Power of Commission to summon any verson residing inCeylon to give evidence—Meaning of expression “ residing in Ceylon ”—Ignorance of legal meaning—Mistake of law or mistake oj fact ?—PenalCode, s. 72—Terms of reference—Objection as to their being ultra vires—Scope—Summons to give evidence—Mode of service—Refusal to be sworn and to giveevidence—Punishability as offence of contempt against authority of the Commis-sion—Scope—Allegation of bias against Commissioner—Whether it is relevant—Incapacity of Commissioner to compel attendance of a witness—Determination ofCommissioner in relation to offence of contempt—Whether it offends against prin-ciple of Separation of Powers—Constitution Order in Council, 1946, 8. 4 (2)—Courts Ordinance (Cap.6), ss. 47, 89—Commissions of Inquiry Act {Cap. 393),ss. 2, 7 (c), 10, 12, 16, 21.
The respondent, who was a citizen of Ceylon, went to England in 1949after selling all his property and assets in Ceylon and was registered in 1959 as acitizen of the United Kingdom and Colonies. He owned properties in England.In 1955 he married a Ceylon citizen, in Ceylon, and both husband and wifelived in London until 1961. His wife lived in Ceylon since November 1961with her five children, and since 1963 she resided in her own house in Colombo.She made regular visits to London each year, staying there with her husbandfor about 3 to 5 months during those visits. Since 1964 she was shareholder in aCompany which was incorporated in Ceylon, and was the Chairman of thatCompany since 1961. The respondent himself was not a shareholder or anofficer of that Company but was its Overseas Representative. He visitedCeylon twice a year, on transit visas or holiday visas, for the purpose ofperforming his functions as the Overseas Representative of the Company andfor the purpose of discussing the affairs of the Company with his wife andCompany officers. His pattern of life was such that, while he had his permanentresidence in England and many business activities there, he also regularlycame to Ceylon in the ordinary course because of his business connectionswith the Company and of his family ties ;
Held, that the respondent was a person residing in Ceylon within the meaningof section 7 (c) of the Commissions of Inquiry Act and was, therefore, liable to besummoned, while he was on a visit to Ceylon, to give evidence at a meeting ofa Commission appointed under that Act.
Held further, that refusal by the respondent to be sworn or affirmed amountedto an offence of contempt against the Commission under section 12 (1) of theCommissions of Inquiry Act, although the respondent had been advised andhad believed in good faith that he was not a person “ residing in Ceylon ”.Such a mistake is a mistake of law. The provisions, therefore, of section 72of the Penal Code relating to a mistake of fact could not provide a defence to therespondent.lxx—18 & 19!•H 14357—2,130 (6/08)
410
In re RcUnagopal
A commission was appointed under the commissions of Inquiry Act forthe purpose of inquiring into and reporting whether abuses of the descriptionreferred to in the Warrant had occurred in relation to or in connectionwith “ relevant ” tenders for Government contracts, and in relation to orin connection with “ relevant ” Government contracts, during the periodcommencing on 1st Juno 1957 and ending on 31st July 1965.
Held, that the terms of reference were not ultra vires of the powers conferredby section 2 (1) of the Commissions of Inquiry Act.
A summons may be considered as served within the meaning of section12 (1) of the Commissions of Inquiry Act when, even though it has not beenserved and executed by the Fiscal as required by section 21 of that Act, thereis voluntary acceptance of it by the person concerned, when it is servedor delivered by some one other than the Fiscal.
The respondent who was summoned to give evidence before a Commissionof Inquiry refused to be sworn and to give evidence. When he was called uponto show cause why he should not be punished under section 47 of the CourtsOrdinance, read with section 10 of the Commissions of Inquiry Act, for theoffence of contempt against and in disrespect of the authority of the Commission,it was contended on his behalf that section 12 (1) of the Commissions of InquiryAct relieved him of the obligation to be sworn if he could show that he hadreasonable cause for the refusal. The particular cause which he relied uponwas that he had a reasonable apprehension that the Commissioner would belikely to be biased against him in his consideration of evidence given by him.
Held, (i) that a refusal to be sworn, whatever be the purpose of or the reasonfor the refusal, is within the scope of the first four words “ refuses to be sworn ”of paragraph (6) of section 12 (1) of the Commissions of Inquiry Act andconstitutes the offence of contempt . The second part of paragraph (6) does notpermit reasonable cause to be shown for a general refusal to give evidence ; itapplies only to a refusal to answer particular questions.
that apprehension of bias on the part of the Commissioner could not in lawbe relied on by a person for the purpose of showing cause when he is charged withcontempt falling under section 12 of the Commissions of Inquiry Act, moreespecially if that person is only a witness. A commission appointed under thatAct is only a fact-finding body and does not exercise judicial or quasi-judicialfunctions.
that the provisions of section 12 of the Commissions of Inquiry Act donot conflict with the principle of the Separation of Powers.
that a Commissioner has no power to compel tho attendance of a witnessby issuing a warrant or proclamation against him or by causing him to bedetained.
R.ULE under section 47 of the Courts Ordinance, read with section 10of the Commissions of Inquiry Act.
H. L. de Silva, Crown Counsel, for the Attorney-General, as amicuscuriae.
E. R. S. R. Coomaraswamy, with R. R. Nalliah, C. D. S. Siriwardene,Nihfd Jayaivickrema, Hamavi Hanijfa, P. A. D. Samarasekera andG. Chakradaran, for the Respondent.
Cur. adv. vult.
H. N. G. FERNANDO, C. J.—In re Ratnagopal
411
April 9, 1968. H. N. G. Fernando, C.J.—
On October 22, 1965, His Excellency the Governor-General by Warrantunder section 2 of the Commissions of Inquiry Act (Chapter 393)appointed Mr. Emil Guy Wikramanayake, Queen’s Counsel, to be hisCommissioner for the purpose of inquiring into and reporting whetherabuses of the description referred to in the Warrant had occurred inrelation to or in connection with tenders for Government contracts, andin relation to or in connection with Government contracts, during theperiod commencing on 1st June 1957 and ending on 31st July, 1965.
On 28th December 1967, the respondent to the present proceedings inthis Court received summons issued under the hand of the Secretary tothe Commission for the appearance of the respondent to give evidencebefore the Commission. On 8th January 1968 the respondent attendedbefore the Commission and made the following statement:—
“ I would like to make submissions to Court because of variousstories and reports in the Press and other circles where it was discussed.I made it convenient for the Commissioner to read an affidavit I havemade already. ”
Thereupon the respondent handed an affidavit to the Commissioner, whohaving read it made certain observations and directed the respondentto be sworn or affirmed. Thereafter the respondent made certain state-ments some of which were :—
“ Having heard what the Commissioner said, I think I shall notproceed any further with these proceedings. ”
“ Having heard you, I wish to withdraw from further proceedings,to give evidence. ”
“ Having heard it, I am still convinced I am not prepared to giveevidence before this Commission. ”
The Commissioner then made the following observations :—
“ Mr. Ratnagopal refuses to give evidence. I will make a note of theproceedings and make a report to the Supreme Court immediately forcontempt. He has had every opportunity of giving evidence, but herefuses to give evidence, on the grounds he sets out. ”“ Mr. Ratna-
gopal : I am not refusing. I am saying I do not want to participate inthe proceedings. ”
On 16th January, 1968, the Commissioner purporting to act undersection 12 of the Commissions of Inquiry Act issued a Certificate contain-ing a determination that the respondent has been guilty of contemptagainst and in disrespect of the authority of the Commission, and thecertificate was transmitted to the Registrar of this Court by the Secretaryof the Commission. A Rule was thereupon issued on the respondentstating that the Commissioner had certified that the respondent
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H. N. G. FERNANDO, C.J.—In re Ratnagopal
“ appeared before him on summons on the 8th day of January 1968 butrefused to be sworn and to give evidence ” and calling upon the respondentto show cause if any why he should not be punished under section 47 ofthe Courts Ordinance read with section 10 of the Commissions of InquiryAct for the offence of contempt committed against and in disrespect ofthe authority of the said Commission.
Counsel who appeared before us on behalf of the respondent to showcause firstly argued that in terms of section 7 (c) of the Act a Commissionerhas power only to summon “ any person residing in Ceylon ” and thatthe respondent was not a person so residing.
In considering this argument it is necessary first to summarise the factsupon which the argument is based.
According to the affidavit of the respondent dated 7th March 1968 andfiled in this Court, the respondent was born in Ceylon in 1924 and was atone time a citizen of Ceylon. This statement as to the respondent’sformer Ceylon citizenship is presumably correct, for the respondentpresumably acquired the status of citizen of Ceylon by descent uponthe passage into law on 15th November 1948 of the Citizenship Act,Cap. 349.
In 1947 the respondent sold all his property and assets in Ceylon, and in1949 he left Ceylon and did not return here until 1954. He purchased aproperty in London in 1949, and now owns other properties in England.Ever since 1949 he has been engaged in business activities in London. In1955 the respondent married a Ceylon citizen, in Ceylon, but sheimmediately thereafter accompanied the respondent to London and bothhusband and wife lived in London until 1961, except for a short visit toCeylon in 1958.
In 1959 the respondent was registered as a citizen of the UnitedKingdom and Colonies and he has thereafter held a passport granted bythe Government of the United Kingdom. The respondent’s wife hasbeen living in Ceylon since November 1961 uptodate, and since 1963 thewife has resided in a house in Colombo which she then purchased.
I should add that the respondent’s acquisition of British Citizenshiphad the effect of depriving him of his Ceylon citizenship, and that hisentry into Ceylon is subject to control and restrictions in the same wayas is the entry of any alien.
The respondent and his wife have five children :—(1) the eldest sonwas bom in London in 1956 and attended school in Colombo from 1962until August 1967 and is now being educated at Dulwich College, London;(2) the second child, a daughter, was bom in Ceylon in 1958 and has beenattending school in Colombo ; (3) the third child was bom in London in1960 and has been in school at Colombo ; (4) the 4th and 5th childrenwere born in Ceylon in 1964 and live with their mother in Colombo.
H. N. G. FERNANDO, C.J.—In re RcUnagopal
413
The wife has from and after 1963 made regular visits to London eachyear staying there with her husband for about 3 to 5 months during thesevisits.
Since 1964 the wife has been the largest shareholder of the Equipmentand Construction Company Limited, incorporated in Ceylon, and shehas been the Chairman of that Company since 1965. The respondenthimself is not a shareholder or an officer of this Company but he is itsOverseas Representative. The respondent according to his affidavitvisits Ceylon twice a year on transit visas or holiday visas. On theseoccasions he stays with his wife in her Colombo house ; in order to performhis functions as Overseas Representative of the Company he studies itsbalance sheets and accounts during these visits, and he also discusses thecompany’s affairs and advises its officers when he is in Ceylon. An affida-vit from an Inspector of Police of the Aliens Branch of the CriminalInvestigation Department in Ceylon sets out a list of the dates of arrivaland of departure in and from Ceylon. According to this affidavit, theparticulars in which are now not disputed, the respondent was in Ceylonin 1962, for one period of five months and another of one month ; in 1963,for one period of three months, another of seven weeks, and a third of twoweeks ; in 1964, for one period of four weeks, for another of seven months,and a third of nine weeks ; in 1965, for two periods of two or three weekseach ; in 1966, for two periods, one of which was ten weeks ; and in 1967for three periods of seven weeks, three weeks, and again three weeks,respectively.
On the respondent’s own showing, visits by him to Ceylon are necessaryfor the purpose of performing his functions as the Overseas Representativeof the Equipment and Construction Company and for the purpose ofdiscussing the affairs of the Company with his wife and Company officers.There is then the fact that the respondent’s wife and his children havebeen living in Ceylon since 1962, and that the children have had theirhome and their education here. According to the respondent, the deci-sion for his wife and children to live in Ceylon was made by the wife in theinterest of her own health and because of her desire to educate the childrenin Ceylon. Frequent visits to this country have been made by therespondent, whose relations with his family have been apparently quitenormal. It is perfectly natural and reasonable that the respondent’sinterest in and affection for his wife and children have prompted him tocome to Ceylon frequently in order to live for some time with them intheir Colombo home. Indeed it seems to me to be a perfectly fairinference that the respondent has hitherto entertained a resolve to visitCeylon whenever practicable and convenient because of the circumstanceswhich have just been mentioned. I trust that the present proceedingsin which the respondent has unfortunately become involved will not serveto alter that natural and reasonable resolve.
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H. N. G. FERNANDO, C.J.—In re Ratnagopal
Counsel for the respondent has, for his argument that the facts of thiscase do not establish that the respondent was a person “ residing inCeylon ”, depended much upon a statement of Viscount Cave in Levene v.Inland Revenue Commissioners 1:—
. . . . the word ‘ reside ’ is a familiar English word and is definedin the Oxford English Dictionary as meaning “ to dwell permanentlyor for a considerable time, to have one’s settled or usual abode, to live
in or at a particular place. ” frit may be accepted as an accurate
indication of the meaning of the word c reside ”
The matter for consideration in that case was whether a person, whose‘ordinary residence ’ for a long period had been in the United Kingdom,had ceased to be resident by reason of frequent absence abroad. Thedecision in the words of Viscount Cave himself was that the expression“ ordinary residence ” connoted “ residence in a place with some degreeof continuity and apart from accidental or temporary absences. ”
I do not find the decision of much assistance in the instant case, becausewhat had there to be decided was not the same question as that whichconcerns us. In the instant case, there is no doubt whatsoever that therespondent has been permanently resident in England for many years,and the question is whether nevertheless he was also Cf residing inCeylon. ”
Much more akin to the circumstances we have to consider are thosewhich were present in another case, in which the same Bench of theHouse of Lords which dealt with Levene’s case delivered judgment on thesame day (Inland Revenue Commissioners v. Lysaght 2). There was nodoubt that Lysaght had resided in Ireland for a long period, duringwhich he had no definite place of abode in England. He used tovisit England once a month for business purposes, he stayed at a hotelfor about a week on each occasion and then returned home. ViscountCave appears to have taken the view that such visits did not have thecharacter requisite to constitute residence ” in England ; but there aremany observations in the other judgments in Lysaght’s case which expressthe contrary view. Thus Viscount Sumner (page 244) :—
€talthough setting up an establishment in this country.
available for residence at any time throughout the year of charge, eventhough used but little, may be good ground for finding its master to be“ resident ” here, it does not follow that keeping up an establishmentabroad and none here is incompatible with being “ resident here ”, ifthere is other sufficient evidence of it. One thinks of a man’s settledand usual place of abode as his residence, but the truth is that in main-cases in ordinary speech one residence at a time is the underlyingassumption and, though a man may be the occupier of two houses, In*is thought of as only resident in the one he lives in at the time inquestion. For income tax purposes such meanings are misleading^
A (1928) A. C. 217.
– (1928) A. C. 234.
H. N. G. FERNANDO, C.J.—In re Ratnagopal
415
Residence here may be multiple and manifold., A man is taxedwhere he resides. I might almost say he resides wherever he can betaxed. ”
“ There is again the circumstance that Mr. Lysaght only comes overfor short visits. Does this make any conclusive difference ? If hecame for the first three months in the year for the purpose of his dutiesand then returned home till the next year, would there not be evidencethat he was resident here, and if so, how does the discontinuity of thedays prevent him from being resident in England when he is here infact, if the obligation to come, as required, is continuous and the sequenceof the visits excludes the elements of chance and of occasion. If thequestion had been one of ‘ occasional residence ’ abroad in the languageof General Rule 3 these facts would have satisfied the expression, forresidence is still residence, though it is only occasional, and I see no suchfundamental antithesis between ‘ residence ’ and f temporary visits ’as would prevent Mr. Lysaght’s visits, periodic and short as they are,from constituting a residence in the United Kingdom, which is‘ ordinary ’ under the circumstances. ”
lord Buckmaster (at page 248) :
“ A man might ivell be compelled to reside here completely against hisunll ; the exigencies of business often forbid the choice of residence,and though a man may make his home elsewhere and stay in thiscountry only because business compels him, yet none the less, if theperiods for which and the conditions under which he stays are suchthat they may be regarded as constituting residence, as in my opinionthey were in this case, it is open to the Commissioners to find that infact he does so reside, and if residence be once established, ordinarilyresident means in my opinion no more than that the residence is notcasual and uncertain but that the person held to reside does so in the ordinarycourse of his life. ”
It seems to me, applying the dicta just cited (particularly those which 1have italicized), that the circumstances of the present case establish therespondent’s residence in Ceylon more strongly than the facts which wereconsidered sufficient to establish Lysaght’s residence in England. Thenecessity for the respondent’s visits to Ceylon arose, not only for businessreasons flowing from his position as Overseas Representative of the Equip-ment and Construction Company and as advisor to the Company and tohis wife as its Chairman : the necessity also arose because his wife andfamily had their home in Ceylon, and regular visits were necessary tomaintain the family relationship and to overlook family affairs. If Imay use the language of Lord Warrington in Levene’s case1, therespondent’s life has been ‘ usually ordered ’ in such a way that therewas for him a regular pattern of fife according to which, while he hadhis permanent residence in England and many business activities there,he also regularly came to Ceylon in the ordinary course because of.business connections with the Company and of family ties.
H192S) A. C. at p. 232.
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H. N. G. FERNANDO, C.J.—In re Ratnagopal
Counsel for the respondent very properly conceded that if the propertest of residence for the purpose of section 7 (c) of the Commissions ofInquiry Act is the same as that applied in Lysaght’s case, the factsconcerning the respondent must then be held to satisfy that test.Counsel however argued that the same test should not here be appliedand I will refer to a few of the cases which he cited in this connection.
The decision most favourable to Counsel was that of Re AdoptionApplication l. A district officer in the Colonial Service and his wife werepermanently in Nigeria because of the officer’s employment ; but bothhusband and wife spent three months in England, once in every 15months, during leave periods. They had no home of their own in Eng-land, but used to stay during the leave periods with the parents of eitherthe husband or the wife. The application by them to adopt a child underthe Adoption Act 1950 was refused on the ground that they did not residein England for the purpose of section 2 (5) of the Act:—“ An adoptionorder shall not been made in England unless the applicant and the infantreside in England. ” The Court held that in the Act, “ residence ”denotes some degree of permanence and that, to be “ resident ”, anapplicant must have “ his settled headquarters in England ”.
In coming to this conclusion, Harman J. took account of otherprovisions of the Act, particularly section 2 (6) :—-
“ An adoption order shall not be made in respect of any infant unless
the infant has been continuously in the care and possession of theapplicant for at least three consecutive months immediately precedingthe date of the order ; and (6) the applicant has, at least three monthsbefore the date of the order, notified the welfare authority withinwhose area he is for the time being resident of his intention to apply foran adoption order in respect of the infant. ”
Reference was made to section 27 (1) which prohibits an AdoptionSociety from placing an infant in the care and possession of a personresident abroad. Harman J. noted also that when a ‘ custodian ’ changeshis residence, s. 32 requires him to give notice of the change to theWelfare authority of the area where he has been residing and of the areato which he is moving.
Having regard to such provisions, Harman J. held that throughout theAct, “ resident in England ” and “ resident abroad ” are two things whichare the converse one of the other. This meant that the applicant’sresidence abroad was incompatible with his being resident in England forthe purposes of the Act. In all the circumstances, it was “ difficult tosuppose that under the Adoption Act, unlike the Fiscal Acts, a person canb:? resident in tw'o places ”. There w'ere thus many features in theAdoption Act wrhich compelled the Court to the conclusion that anadoption order could not be made in favour of a person who was notpermanently resident in England. I am unable to hold, in the absence
1 (1951) 2 A. E. R. 931.
H. N. G. FERNANDO, C.J.—In re Ratnagopal
417
of any special features in our Commissions of Inquiry Act, that the testimposed by the English Adoption Act should be applied in considering themeaning of the expression “ residing in Ceylon ” occurring in section 7 ofour Act.
Counsel also relied on English decisions upon the question whether theCourts have jurisdiction in matrimonial causes on the ground that a wife“ has been ordinarily resident in England for a period of 3 years precedingthe commencement of the proceedings
In Hopkins v. Hopkins1, the parties had married in England in 1943>■at a time when the husband had a commission in the Fleet Air Arm-They lived in England until 1949 and had 2 children, both apparentlyborn in England. In April 1949, the parties went to Canada, where thehusband found employment in May that year. On 1st September, theymoved into a house in Canada which the husband had taken on a yearlytenancy. At this period, the parties had no home in England. The wifeleft Canada on September 20th and returned to England in October.
The Court held that the husband had at the material time acquired adomicil of choice in Canada. The question was whether the wife had,during the 3 years preceding October 1949, been ordinarily resident inEngland, despite her stay in Canada for 5 months of that period. Itwas held that “ it would be impossible to say that during these 5 monthsshe was resident anywhere other than in Canada ”. The judgment inthis case does not explain, by reference to the particular facts, how“ ordinary residence ” in Canada was thereby established. But acomparison with the facts of a later case readily furnishes theexplanation.
In Lewis v. Lewis 2 the wife had a flat in London, in which she lived withher husband and her parents from 1942 to 1951. In 1951, the husbandwent to Australia in the course of his ordinary employment, and his wifeand child accompanied him. But she retained the London flat in whichher parents continued to reside. In November 1951 she returned toEngland and resumed occupation of the Flat. The Court accepted theposition that the stay in Australia was intended to be temporary, and thatboth parties had, when they left for Australia, intended to return toEngland. It was held on these facts that the wife had been ordinarilyresident in England, despite her stay with her husband in Australia, for aperiod of 3 years immediately preceding October 5, 1954.
I agree with Counsel’s submission that the decision of these casesturned on the intention with which the wife in each case left England,which had previously been her place of ordinary residence. If there wasat that stage no intention to return to England, but instead an intentionto stay abroad indefinitely, then England ceased at that stage to be theplace of ordinary residence. In the Hopkins case, the facts showed suchan intention because the wife had no home in England and her only homewas that which her husband provided in Australia. If therefore, the
1 (1950) 2 A. E. R. 1035.* (1956) 1 A. E. R. 375.
!*•H 14397 (6 68)
418
H. X. G. FERNANDO, C.J.—In re RcUnagopal
question were to arise whether the respondent in the instant case had beenordinarily resident in England during the 3 years preceding December1967 (when he last visited Ceylon), the answer must probably be in theaffirmative, because he had during that period left England with no ideaof living elsewhere permanently or indefinitely. On the contrary, he was“ ordinarily resident ” in England during that period, despite hisoccasional, though regular, visits to Ceylon.
In the Hopkins case, as well as in a later case of Stransky v. Stransky 1,reference was made to the tax cases of Levene and Lysaght, and toobservations made by the learned Law Lords in those cases. Pilcher J. inthe Hopkins case cited a reference by Lord Warrington to the possibilitythat a person can reside in more than one place within the meaning of theprovisions of the Tax laws. Nevertheless it seems to me that the questionwhether a wife can be held to be ordinarily resident in England for a3-year period, despite her being “ resident ” elsewhere for parts of thatperiod, did not call for consideration upon the facts of the cases of Hopkins,Stransky and Lewis. In each of these cases the ground of objection to thejurisdiction of the English Courts was only that a period of ordinaryresidence in England had either been terminated or else interrupted by astay abroad ; and the decisions were to the effect that such a terminationor interruption can result only by a departure from England with anintention to live elsewhere permanently or indefinitely.
In my opinion therefore the cases concerning matrimonial causes mustbe distinguished from a case such as Lysaght, which decided that a personcan in certain circumstances be c resident ’ in England for the purposesof the revenue laws, notwithstanding that his permanent home is inanother country. It is at least very doubtful whether, for the purposesof a matrimonial action, Lysaght’s connection with England would havesufficed to establish that he had been ordinarily resident in Englandfor a period of 3 years ; if the test applied in the matrimonial actions,namely whether a person left England with the intention of livingelsewhere whether permanently or indefinitely, had been applied inLysaght’s case, Lysaght could probably not have been held to beordinarily resident in England during a period of 3 years.
I note also that the Matrimonial Causes Act 1950 confers jurisdictionon the English Courts, firstly on the ground that the husband is domiciledin England, and that the ground of the wife’s ordinary residence inEngland for a period of 3 years is the second alternative ground ofjurisdiction. That being so, it is only reasonable that the alternativeground is established only if the wife’s intention regarding her place ofresidence is in some degree comparable to the intention requisite toestablish domicile.
In the revenue cases however, there is nothing in the relevant statuteswhich might indicate that residence cannot be established except whenthere is an intention to continue such residence permanently or
1 (1954) 2 A. E. R. 556.
H. N. G- FERNANDO, C.J.—In re Ralnagopal
419
indefinitely. Nor is there in our Commissions of Inquiry Act any indicationthat such an intention to remain in Ceylon is necessary in order to con-stitute residence in Ceylon. I think therefore the expression any person“ residing in Ceylon ” in section 7 of our Act must be construed in theBame manner as the provisions regarding residence in the English revenuelaws have been construed in England. I have already indicated that thefacts of the present case establish that the respondent “ resides in Ceylon ”,even more strongly than the facts of a case such as that of Lysaght.
Counsel’s second argument was that the appointment of the Commissionwas ultra vires the powers conferred by the Commissions of Inquiry Act.In considering this argument it is necessary to set out here the relevantpart of the warrant appointing the Commission :—
“ WHEREAS it appears to me to be necessary to appoint aCommission of Inquiry for the purposes hereafter mentioned :
Now, therefore, I, William Gopallawa, Governor-General, reposinggreat trust and confidence in your prudence, ability and fidelity, do,in pursuance of the provisions of section 2 of the Commissions ofInquiry Act (Chapter 393), by these presents appoint you, the saidEmil Guy Wikramanayake, to be my Commissioner for the purposeof—
(I) inquiring into, and reporting on, whether, during the period com-mencing on the first day of June, 1957, and ending on the thirty-first day of July, 1965, all or any of the following acts or things,hereafter referred to as “ abuses ” occurred, directly or indirectly,in relation to, or in connection with, all such tenders (includingquotations or other offers by whatsoever name or descriptioncalled) made by persons or bodies of persons (other than anylocal authority or Government department), hereafter referredto as “ contractors ”, for the performance of contracts for theconstruction of buildings or any other works (including contractsfor the supply of services or equipment in connection withsuch first-mentioned contracts), by whatsoever name or desig-nation called, for or on behalf of any Government department,and all such contracts of the description hereinbefore referredto given to contractors, whether in consequence of the makingof tenders or otherwise, as you the said Commissioner mayin your absolute discretion deem to be, by reason of their impli-cations, financial or otherwise, to or on the Government, ofsufficient importance in the public welfare to warrant suchinquiry and report (hereafter referred to as relevant tenders ”and “ relevant contracts ”, respectively) :—
There immediately follows a long list of matters, each of which is an“ abuse ” concerning the occurrence of which there is to be inquiry andreport by the Commission. I have italicized the sentences or clauseswhich have to be read together for the consideration of Counsel'sargument.
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H. N. G. FERNANDO, C.J.-—In re Ratnagopal
Section 2 (1) of the Commissions of Inquiry Act provides as follows :—-
“ Whenever it appears to the Governor-General to be necessarythat an inquiry should he held and information obtainedas to—
the administration of any department of Government or of any
public or local authority or institution ; or
the conduct of any member of the public service ; or
any matter in respect of which an inquiry will, in his opinion, be
in the interests of the public safety or welfare,
the Governor-General may, by warrant under the Public Seal of theIsland, appoint a Commission of Inquiry consisting of one or moremembers to inquire into and report upon such administration, conductor matter. ”
The objection of ultra vires was based on certain propositions formulatedon the following lines :—
The subject of the inquiry which the Governor-General required
in this case is not of the nature specified in paragraph (a) orparagraph (6) of s. 2 (1) of the Act, because there is no speci-fication in the terms of reference, either particularly or generally,of any department or departments or of any member or membersof the public service, the administration of which or the conductof whom is to be investigated.
Accordingly, an inquiry into the present subject matter could be
lawfully required by the Governor-General only if it is withinthe scope of paragraph (c) of s. 2 (1).
A matter is within the scope of paragraph (c) only if the Governor-
General is of opinion that an inquiry into the matter wdll be inthe interests of the public welfare.
In this case, the Governor-General commits to the Commissioner
the function of determining, in his absolute discretion,particular tenders and contracts which are of sufficient import-ance in the Commissioner’s opinion to warrant inquiry andreport in the interest of the public welfare.
Hence the actual subject-matter of the inquiry, namely whether
abuses occurred in connection with “ relevant tenders” and“ relevant contracts ”, was not within the contemplation ofthe Governor-General, and was not a matter “ in respect ofwhich an inquiry will, in his opinion, be in the interests of thepubh'c welfare ”,
This objection, vThich Counsel for the respondent formulated in conse-quence of certain observations which fell from me during the hearingappeared to me at first to be substantial. But learned Crown Counsel,
H. N. G. FERNANDO, C.J.—In re Ratnagopal
421
appearing as amicus curiae, subjected s. 2 of the Act and the terms ofreference to a careful examination, which satisfied me that the objectionmust be rejected.
The maxim omnia praesumuntur rite esse acta justifies an assumptionthat the Governor-General will not appoint a Commission of Inquiryunless he has in mind some subject of inquiry ; and such an assumptionis justified also on grounds of common sense. The terms of referencein this case do specify generally an ascertainable subject for inquiry,namely whether abuses of a specified description (they are specified in thelist numbered (a) to (n) in the warrant) occurred in connection with tendersfor Government contracts, and such contracts themselves, during aspecified period.
If the scope of the inquiry as set out in the terms of reference had beenthus generally stated without any qualification, the objection would nothave been tenable that the Governor-General had not formed the requisiteopinion under paragraph (c) as to the need for the inquiry. Moreover,I agree with learned Crown counsel that the list of “ abuses ” mentionedin the terms of reference involves or can involve inquiry into mattersreferred to in paragraphs (a) and (6) of s. 2 (1) of the Act, that is to say,into the administration of any Government Department which may beconcerned with tenders and Government contracts and into the conductof public officers who may be so concerned.
The questions which further arise are—
whether the limitation of the subject of the inquiry to abuses in
connection with “relevant ” tenders and “relevant” con-tracts contradicts the reasonable assumption that the Governor-General was of opinion that an inquiry was necessary into thesubject generally mentioned in the terms of reference ;
whether it was unlawful for the Governor-General to commit to
the Commissioner the function of deciding or selecting whichtenders and contracts he would investigate for the purpose ofascertaining whether abuses of the nature contemplated bythe Governor-General had occurred in connection with them.
I find it convenient to consider these questions by supposing that theterms of reference in this case had been drafted in a different form thus :—
“ Whereas I am of opinion that an inquiry should be held andinformation obtained as to whether abuses occurred in connection withtenders for Government contracts and with Government contracts
during the period . . . . : I hereby appointto be my Commissioner
for the purpose of inquiring into all such tenders called for, and allsuch contracts negotiated, during the aforesaid period, and of reportingwhether abuses of the nature referred to in the Schedule hereto occurredin connection with any or some or all such tenders and contracts.”
422
H. N. G. FERNANDO, C.J.—In re Ratnagopal
Let me suppose that upon such a Commission, the Commissionerultimately submits a report—
(а)that the number of tenders and contracts during the relevant
period was so numerous that he had not been able to inquireinto all of them ;
(б)that he had inquired into all important tenders and contracts,
namely those which related to works involving expenditure bythe Government of sums exceeding Rs. 500,000 in each case ;
that he had also inquired into 20 other contracts which involved
the utilisation of foreign aid, because in his opinion an inquiryinto such contracts was of public importance ;
that according to his findings, “ abuses ” specified in the report
had occurred in connection with some of the contracts actuallyinvestigated.
Upon receipt of such a report, it may be open to the Governor-Generalto require the same Commissioner to investigate all the previouslyuninvestigated tenders and contracts, and no doubt it will be open toappoint another Commissioner to make such an investigation. But thefailure of the Commissioner to inquire into all the tenders and contractsin the contemplation of the Governor-General would not taint withillegality or invalidity the inquiry into, and the report of the findingsconcerning, the tenders and contracts into which an actual investigationtook place. In other words, there can be no substance in suchcircumstances in the contention that the inquiries actually conductedby the Commissioner were not authorised by the Commissions of InquiryAct.
If then an inquiry and the findings based thereon would not be unlaw-ful or unauthorised on the ground that the Commissioner decides of hisown motion to limit the scope of his investigations to some only, but notall, of the contemplated tenders and contracts, it must follow a fortiorithat such a limitation would be even more innocuous if, as in the instantcase, it is imposed in pursuance of special authority conferred by thewarrant of appointment.
Since the objection of ultra vires has to be rejected for the reasonsabove stated, it is not necessary to state my reasons for agreeing withcertain other answers to the objection which Crown Counsel also sub-mitted. One such answer was that the purpose of the Commission,which is merely to inquire and report on certain matters, does not involvethe exercise of judicial or quasi-judicial functions, or even of executivepower ; that being so, any failure of the Commission to duly carry outits purpose is a subject for complaint to the Governor-General and notto the Courts.
The offence of contempt which the respondent is alleged to havecommitted, namely the refusal to be sw orn, is one specified in s. 12 (1) (b)of the Act, and several arguments of law were adduced in support of theplea that the respondent did not commit that offence.
H. N. G. FERNANDO, C.J.^—In re RcUnagopal
423
One such argument was that a refusal to be sworn is an offence onlyif the person so refusing is (in terms of the opening words ofs. 12 (1))a person “ on whom a summons is served under this Act ”, and that asummons under the Act was not served on the respondent. Counselinvoked s. 21 of the Act, which provides that “ every process issuedunder this Act shall be served and executed by the Fiscal ”, and claimedthat there was no compliance with s. 21 in this case. There was undoubt-edly no such compliance, for the summons which the respondent receivedwas not served or executed by the Fiscal. What actually occurred wasthat the summons was issued to a police officer for service, and that,being unable to serve it personally, the police officer affixed a copy of thesummons on the respondent’s wife’s house in Colombo, at whichthe respondent was admittedly staying at the time. Thereafter, therespondent himself telephoned an appropriate police official, who at therespondent’s request, delivered the summons to him. (These facts donot appear on the record, but they were stated to us by Counsel forrespondent on instructions from his client.) The argument on this pointthen is simply that, although the respondent did receive the summonsissued by the Commission, it was not duly served because he did notreceive it from the hand of the Fiscal.
This argument depends on the proposition that the provisions of s. 21are mandatory and imperative, and not merely directory, and that serviceof a summons otherwise then by the Fiscal is a nullity.
Having regard to the purpose of the service of a summons on a proposedwitness, there can be no doubt that the purpose was achieved in this case,namely that the proposed witness in fact became aware that he wasrequired to give evidence before a Commission which had duly issued asummons for him to appear under statutory power so to do. In fact thesummons was delivered to him personally, because of a request whichhe himself made. The situation is thus not different from what it wouldhave been if the respondent happened to attend before the Commissionas a mere spectator, and had then agreed to accept a summons deliveredto him by the Commissioner or the Secretary of the Commission. Itseems to me that in both situations, when there is voluntary acceptanceof a summons served or delivered by some one other than the officialspecified in that behalf in the statute, the purpose intended by thestatutory provision for a mode of service is in fact achieved. Once asummons has been duly issued by a competent authority and has beenin fact received and accepted by the proper person, any subsequentobjection that there was not a due service is purely technical. Indeed,the respondent did not, when he attended before this Commission, raisethe objection which his Counsel formulated only at a late stage of alengthy argument. I hold that there was a mere irregularity in themode of service of the summons and that the irregularity was of sucha nature as would, in criminal proceedings, have been covered by thesaving provisions of s. 425 of the Criminal Procedure Code. I holdalso that the respondent by his conduct waived his right that the
424H. N. G. FERNANDO, C.J.—In re Ratnagopal%
summons should be served on him by the Fiscal. It follows that therespondent is a person on whom summons was served under the Act,and to whom the provisions of s. 12 become applicable.
Another argument, for the contention that the respondent committedno offence when he refused to be sworn or affirmed, invoked section 72of the Penal Code, which declares that “ nothing is an offence which is
done by a personwho by reason of a mistake of fact, and not by
reason of a mistake of law, in good faith believes himself to be justifiedby law in doing it. ”
The argument here was that the respondent had been advised and hadbelieved in good faith, that he was not a person *' residing in Ceylon ” ;and even if that belief was incorrect, it was a mistake of fact and not amistake of law which induced that belief and the consequent refusal to besworn or affirmed. It seems to me however, that the mistake, if any,made by the respondent was not a mistake of fact. The mistake con-cerned the proper meaning, intended by the Legislature, of the expression“ any person residing in Ceylon ”. The well-known case of Weerakoon v.Ranhamy 1 is relevant in this connection.
In that case, a person was charged with an offence under the ForestOrdinance alleged to have been committed by reason of certain acts doneby him on land alleged to have been f chena land ’ at the relevant time.One defence in the case depended on section 72 of the Penal Code, theaccused claiming that he had believed, on the faith of certain deeds andother matters, that he had a title to the land, and that it was thereforenot “ chena land ”. In rejecting this defence Schneider J. observed :—
“ The title relied upon by the appellant does not come within theabove description, and is one therefore which the law would not recog-nise. The only mistake he made was in being ignorant that this wasthe law. He was not ignorant as to the facts relating to his title, noras to the fact that the land was a chena within the Kandyan provinces.He must be presumed to have known the law whether he was actuallyacquainted with it or not. It seems to me therefore that the mistakewhich the appellant could plead is a mistake of law and not of fact, andthat section 72 therefore does not exculpate him. The word * mistake 5in section 72 must be taken to include ignorance. Sections 69 and72 are a paraphrase of the English Common law maxim in its applicationto criminal law :Ignorantia facti excusat ; ignorantia juris non
excusat. ”
De Sampayo J. discussed the matter as follows :—
“ Ordinarily there is no difficulty about the expression “ mistake offact It is a misconception as to the existence of something which inreality does not exist. What, then, is a * fact ’ in this connection ?I should say that it was something external to oneself. It cannot I
1 (1921) 23 N. L. It. 33.
H. N. G. FERN A N1) O, G.J.—In re Ratnagopal
425
think include a state of mind. It is, indeed, the supposed fact whichproduces the state of mind. The difference between “ objective ” and££ subjective ” well known in mental science is not an inappropriatedistinction for the present purpose. Mr. Jayewardene’s argument, asI understand it, is that the accused’s belief on the strength of his deedsand possession that he had good title is £f the fact ” about which he wasmistaken. I cannot accede to this argument. The mistaken belief isthe result of a process of reasoning, whereby he gives legal effect to hisdeeds and acts of possession. This surely is a mistake of law and notof fact.”
In the present case also, the respondent, if he believed that he was not££ residing ” in Ceylon, had that belief through ignorance of the legalmeaning of “ residing ” or because of a mistake in his process of reasoning.I hold therefore that the provisions of section 72 of the Penal Code do notprovide a defence to the respondent.
Counsel for the respondent argued also for a construction of s. 12 (1) ofthe Act which would relieve him of the obligation to be sworn or affirmedif he could show that he had reasonable cause for the refusal. Theparticular cause which the respondent had, it is said, is that there was areasonable apprehension that the Commissioner would be likely to bebiased against the respondent in his consideration of evidence given bythe respondent, and in his investigation of contracts in which theEquipment and Construction Company had been concerned.
The construction contended for is that, while a refusal simpliciter to besworn is covered by the first four words ££ refuses to be sworn ” in s. 12
(6) of the Act, such a refusal, if it involves and is due to a desire not togive evidence, is in substance a refusal to give evidence. Such a refusal,it was argued, is within the scope, not of the first four words in paragraph
of s. 12 (1), but of the second part of the paragraph, i.e. ££ havingbeen duly sworn, refuses or fails without cause, which in the opinion of theCommission is reasonable, to answer any question put to him touchingthe matters directed to be inquired into by the Commission ”.
There is first a simple but perhaps “ technical ” answer to this argu-ment, namely that the second part of paragraph (6) is not applicableexcept in the case of a person who has first been duly sworn. But thereare other more acceptable and convincing answers to this argument.
The second part of paragraph (6) pre-supposes in my opinion that aquestion must first be put to a witness before there can arise in his mind areason why he should decline to answer it. For example, a witness willclaim that a communication made to him was privileged, only if somequestion put to him will involve an answer which would disclose somesuch communication. The language of paragraph (6) indicates thatreasonable cause for refusing to answer a question is some cause related tothe question which is asked and/or to the answer which is sought, and isnot some general cause inducing a general refusal to answer any questionswhatsoever.
426
H. X. G. FERNANDO, C.J.—In re Ratnagopal
I think also that, while the second part of paragraph (b) applies to arefusal to answer a particular question, the first four words of the para-graph were intended to apply to a general refusal to give evidence. Letme take a case in which a person is summoned to give evidence, but theCommission does not require him to be sworn or affirmed. If the personthen states that he does not wish to give evidence, the matter mightend there if the Commission accedes to that wish. But it will be opento the Commission at that stage to require him to be sworn ; and if hethen refuses to be sworn, his refusal would be clearly attributable to hisintention not to give evidence. In other words, the requirement that hebe sworn will then be the means of compelling him to testify. Indeed,this is the sole means by which any person can be compelled to giveevidence before a Commission appointed under the Act.
The oath or affirmation which a witness takes in proceedings in ourCourts is that “ the evidence I will give in this case will be the truth ”.A witness thus makes a twofold undertaking, that he will give evidence,and that his evidence will be true. If then the first part of paragraph (6)can be construed to mean that a person who is sworn may neverthelessrefuse to testify, the construction would have the absurd consequence thatthe law permits the person to remain mute and thus evade outright hisundertaking to give true evidence.
I hold for these reasons, firstly, that a refusal to be sworn, whateverbe the purpose of or the reason for the refusal, is within the scope of thefirst four words of paragraph (b) of s. 12 (1) and constitutes the offenceof contempt ; and secondly, that the second part of paragraph (6) doesnot permit reasonable cause to be shown for a general refusal to giveevidence.
In view of the conclusion just stated, it suffices for me to add that thereappears to be much substance in twTo arguments of Crown Counsel. Onewas that the ground of bias is not available even to a person whose conductis the subject of inquiry by a Commission, if its proceedings are neitherjudicial nor quasi-judicial, and if its findings do not determine or affectthe rights of such person. The other argument was that the ground ofbias on the part of a tribunal is not available to a witness who refuses totestify, even though the proceedings of the tribunal be judicial. I notein this connection that at the present stage of the inquiry by thisCommission, the conduct of the respondent is not “ a subject of inquiryby the Commission ” as contemplated in s. 16 of the Act.
During this hearing, we invited the attention of learned Crown Counselto a possible challenge of certain provisions of s. 12 of the Commissions ofInquiry Act on the ground that they infringe the principle of the Separa-tion of Powers. If in circumstances referable to paragraph (a) or para-graph (c) of s. 12 (1), or to the second part of paragraph (6), a personpleads some cause as a ground for failure to appear, or to produce adocument, or to answer a question, as the case may be, then the sectionrequires the Commissioner to form the opinion whether or not the pleaded
H. N. G- FERNA^TDO, C.J.—In re Ratnagopal
427
cause is reasonable. In any such circumstances, the Commissioner’sdetermination under sub-section (2) of s. 12 that the person has committedan offence of contempt, the determination will be based on the Commis-sioner’s opinion that the cause shown is not reasonable. The questioncan then arise whether, in subsequent proceedings in the Supreme Courtfor the alleged offence of contempt, a relevant ingredient of the offenceconsists of the fact that the Commissioner has formed the opinion towhich reference is here made. If that opinion is a relevant ingredient,then the Court would be bound by the Commissioner’s opinion on aquestion of fact, and to that extent a conviction by this Court would bedependent on a finding of fact reached by a tribunal not competent toexercise judicial power.
I am in agreement with Crown Counsel’s submission that the above isnot the only construction which may be given to s. 12, and that theSection can and should be construed in such a manner that its provisionsdo not conflict with the principle of the Separation of Powers. Thealternative construction is that the Commissioner’s opinion is relevantonly for the purpose of the determination made by him under sub-section (2) ; but once the matter is before the Supreme Court, and whenthe Court decides in its discretion to take cognisance of an alleged offenceof contempt, it is for the Court to decide for itself whether or not a personhad reasonable cause for any of the failures or omissions now underdiscussion.
It will be evident that my brother Fernando, in reaching the conclusionthat the respondent in this case had no reasonable apprehension of thelikelihood of bias on the part of the Commissioner, has considered all therelevant circumstances quite independently of, and without referenceto, the opinion entertained by the Commissioner concerning this matter.
The judgment prepared by my brother Fernando relieves me of thetask of discussing two further questions which arise for decision. Whetheran apprehension of bias on the part of the Commissioner can in lawconstitute a cause for the respondent’s refusal to be sworn or give evidence,and whether the matters specified in the respondent’s affidavit filed inthis court concerning the Commissioner’s business interests, and theCommissioner’s actions and remarks affecting the respondent and his wife,sufficed to create a reasonable apprehension that the Commissioner islikely to be biassed against the respondent in the course of theCommissioner’s further proceedings. I adopt the reasons stated by mybrother for rejecting the contentions urged on behalf of the respondent inrelation to both these questions, and I hold accordingly that answersin the negative must be given to both the questions. I
I hold that the respondent is guilty of an offence of contempt committedagainst or in disrespect of the authority of the Commission, and I imposeon him for that offence a fine of one thousand rupees, or in default asentence of simple imprisonment for a term of one month.
428
T. S. FERNANDO, J.—In re Ratnagopal
T. S. Fernando, J.—
I agree, for the reasons set out by my Lord, the Chief Justice, with thefindings he has reached and to the making on this matter of the orderproposed by him. I wish to deal, at his suggestion, only with thequestions of law and fact relating to bias which have not been explored byhim in his judgment.
In the course of the protracted argument before us which, I would liketo state, was conducted with ability and with acceptance by learnedcounsel for the respondent and by Crown Counsel, much time was devotedto the question whether bias on the part of the Commissioner -wouldconstitute reasonable cause if established by a person charged withcontempt falling within section 12 of the Act. Crown Counsel argued thatbias would not be relevant in such a situation and that this Court shouldnot, therefore, examine the allegations contained in the affidavit of therespondent. A Commission appointed by the Governor-General underthe Commissions of Inquiry Act is only a fact-finding body and,indeed, its report is not required by law to be published. It was heldquite recently, in the case of Dias v. Abeytoardene1, where a writ ofprohibition had been applied for on the ground of a Commissioner’salleged bias, that a Commissioner under the Act does not exercise judicialor quasi-judicial functions. It is now well recognised that the remediesof prohibition and certiorari are available to disqualify persons or bodiesexercising functions of a judicial or quasi-judicial nature if bias in thesense of pecuniary personal or official bias is established. In the case ofjudges, section 86 of the Courts Ordinance itself provides for a dis-qualification of a judge who is personally interested in any cause orsuit. Crown Counsel brought to our notice a decision of an Indian HighCourt—Allan Berry and Co. v. Vivian Bose 2 —where a petition underArticles 226 and 227 of the Indian Constitution had been directed, interalia, towards seeking a disqualification of the Solicitor and the Secretaryattached to a Commission appointed under the Commissions of InquiryAct, 1952, on the ground that they are incapable of giving impartialassistance and should not be allowed to be attached to the Commission.The Court there held that, as the proceedings of the Commissionare not of a judicial or quasi-judicial nature, it was not possible for it tohold that bias, even if established, disqualified the officers concerned frombeing associated with the Commission.
Counsel for the respondent attempted to distinguish this and othercases cited by Crown Counsel by pointing out that what he was seekingto do in this Court was, not to establish that bias which would disqualifythe Commissioner from performing his functions under the Act, but topoint to facts indicating bias as constituting reasonable cause for hisclient’s refusal to testify before this particular Commissioner. I do,however, think that there is much force in Crown Counsel’s rejoinder thatto permit the respondent, who is not even in a position analogous to thatof a party in a judicial or quasi-judicial proceeding but only a witness, to
1 (1966) 68 N. L. R. 409.
2 A. I. R., 1960, Punjab, 86.
T. S. FERNANDO, J.—In re Ratnagopal
429-
refuse to testify on the ground alleged is to grant him a right denied evento a party in a proceeding before a court. A witness in a judicial pro-ceeding who attacks the judge on the ground of his bias would be held to-be committing the offence of contempt by scandalising the court. More-over, if bias can constitute reasonable cause for the respondent refusingto be sworn or refusing to testify, the same or similar considerations canbe put forward by others, and a logical consequence may ensure a virtualdisqualification of the Commissioner. It is not, in my opinion, com-petent for this court to so disqualify a Commissioner appointed by theGovernor-General. It is undeniable that the Governor-General’s powersand functions under the Commissions of Inquiry Act are exercised inaccordance with the usual constitutional conventions—see section 4 (2)of the Constitution Order in Council, 1946—and he would receive theadvice of the appropriate Minister. The proper forum for seeking a dis-qualification of a Commissioner would appear, therefore, to be Parliamentand not the Courts of Law. By upholding the point raised by therespondent we would be attempting to do indirectly what we cannot dodirectly. Any question that would result in a disqualification or avirtual disqualification of the Commissioner should be left by the court to-the proper authority, and I would in this connection adopt with respectthe observation of Frankfurter J. in the American case of Colegrove v.Green L made in the context of the Separation of Powers, that “ to-sustain this action would cut very deep into the very being of Congress.Courts ought not to enter this political thicket ”. For the reasons I haveindicated, I would uphold the argument advanced by Crown Counsel thatbias cannot be relied on for the purpose of showing reasonable causewhen charged with commission of a contempt and that it is, accordingly,irrelevant.
The opinion that I have reached that bias on the part of a Commissioneris irrelevant in these proceedings would, in ordinary circumstances, haverendered it unnecessary for me to examine the averments or allegations,contained in the respondent’s affidavit of 7th March, 1968 presented tothis court in support of the ground of bias. Respondent’s Counsel,however, urged that, as this is not a proceeding whereby it is sought todisqualify the Commissioner, and as all that the respondent is doing bypresenting his affidavit is to establish reasonable cause for refusal generallyto give evidence, the court will examine the allegations of bias to theextent necessary to decide whether they would constitute such reasonablecause. As we permitted the matter to be argued, and as we think itexpedient to record a finding of fact on this matter in the event of ourconclusion that reasonable cause cannot be permitted to be shown wherethere has been a general refusal to give evidence being wrong, I willshortly state my reasons for holding that the respondent has failed alsoto establish bias.
In regard to the affidavit of the respondent, his counsel was contentto confine himself to the matters set out in paragraphs 6 and 7 thereof,with the further qualification that the averments in sub-paragraph (o),
1 39.8 U. S. S. C. Rep. 556 (90 Lawyers' Ed., p. 1436).
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T. S. FERNANDO, J.—In re Ratnagopal
a
of paragraph 6 may be disregarded by us as that sub-paragraph wasincluded at a stage when the respondent did not have access to certaindocuments. It was stated that the documents have since been seen andthat it is not proposed to pursue the particular matter concerning theoffer by Steel Products Ltd. to purchase the estate specified in thatsub -paragraph.
It became apparent to us in the course of the argument that noexamination of the averments of the respondent’s affidavit could beeffective without an opportunity being afforded to the Commissionerto submit any material he wished in answer to that affidavit. Section12 (4) of the Commissions of Inquiry Act does not enable this Court tosummon or examine the Commissioner except with his own consent.He is not a party to these proceedings although they commenced onhis certificate. Crown Counsel’s appearance before us was in the capacityof an amicus curiae in response to the notice we had caused to be givento the Attorney-General to assist us at the hearing. In the circum-stances we indicated to Crown Counsel that we would be willing to receiveany affidavit evidence that the Commissioner may be advised to submit.After that indication was given, we have had submitted to us an affidavitsworn by the Commissioner on March 23, 1968 in which, to put it shortly,he denies all the material allegations in paragraph 6 of the respondent’saffidavit. We should add that an affidavit containing substantiallythe same allegations contained in the respondent’s affidavit filed in thiscourt had been submitted by the respondent to the Commissioner onJanuary 8, 1968, before the certificate to this court was signed by theCommissioner. We have had the advantage of examining the recordof the proceedings of that day before the Commission, and I observethat the Commissioner appears generally to have thought then that therewas not sufficient reason for him not to proceed to examine the respondentas a witness.
Quite apart from the fact that the material allegations, as I have notedabove, have been denied by the Commissioner, we have to take accountof the fact that the allegations in paragraph 6 are of too general a natureand no specific instances, except those to which I shall refer later, havebeen mentioned :—vide sub-paragraphs (g) and (h) thereof. Had specificinstances been given, if there were any, the Commissioner would havehad an opportunity of considering the allegations and replying thereto,if he was so advised. Moreover, it is indisputable that to be any realassistance in the discussion of the question of bias the allegations wouldrequire to be specific ones. One or more of the few specific transactionsmentioned in the affidavit—vide sub-paragraph (&) of paragraph 6—-relate to contracts entered into at a time falling outside the period coveredby the terms of reference of the Commission. The matter referred to insub-paragraph (r), viz., that a Mr. de Silva who is a friend of the Com-missioner and who has resigned from the Board of Directors of a companyof which the respondent’s wife is Chairman and who is alleged byrespondent to be taking an undue interest in the investigations being
T. S. FERNANDO, J.-g-Jn re Ratnagopal
431
made by the Commission, is of too remote a nature to form a groundcapable of contributing towards the establishing of bias on the part ofthe Commissioner. There is next the allegation in sub-paragraph (p)that, as the Commissioner had some years ago acted as counsel forMessrs Socoman in certain arbitration proceedings between the latterand the Government and as the company (Equipment and ConstructionCo. Ltd.) of which the respondent is the overseas representative is acollaborator with and a sub-contractor of Socomans, the Commissionermay not be able to resist drawing inferences from knowledge gatheredby him in his professional and, therefore, confidential capacity as counselfor Socomans. It would appear that Equipment and Construction Co.Ltd. was a sub-contractor of Socomans in respect of the contract enteredinto between the latter and Government over the Kandy Town WaterSupply Scheme which is one of the contracts being investigated into bythe Commissioner. The fear which the respondent appears to be enter-taining in this regard of a denial to him of what he calls natural justiceis, in my opinion, too far fetched to be taken into account when one isconsidering the existence of bias. Taken altogether, the matters reliedon in paragraph 6 of the affidavit as allegations establishing bias in theCommissioner are of so vague, flimsy and general a nature that it isaltogether impossible to regard them as constituting reasonable cause fora refusal to give evidence.
There remains only an examination of the matters specified in paragraph7 of the respondent’s affidavit with a view to considering whether theexistence of the facts alleged therein and proved would in their cumulativeeffect add up to such bias or antipathy towards the respondent, andindeed towards his wife as well, as would constitute reasonable causecontemplated in section 12 (1) (b) of the Act. These have been examined,at some length by us and we even permitted the respondent to leadevidence in proof of such of them as he cared to pursue before us. We had.the record of the proceedings of the Commission in so ifar as they relateto the relevant dates put before us, and we permitted respondent’^counsel access thereto so that the facts may be placed before us asaccurately as circumstances permitted.
It may be useful now to examine the facts alleged to be proved. Forconvenience, they may be detailed, in chronological order, under thefollowing five heads :—
An attempt to have summons on the respondent served illegallyabroad ;
An uncalled for suspension of the passport (a Ceylon passport) ofthe respondent’s wife secured on December 8, 1967 on a requestmade by the Commissioner on December 5, 1967 ;
A threat uttered on December 13, 1967 to issue a “ commission ”to a medical officer to examine the respondent’s wife in hospital,despite the submission by her of a medical certificate to theeffect that she had entered hospital;
432T. S. FERNANDp, J.—In re Ratnagopal
The Airport incident of December 26, 1967 ;
An illegal order of December 28, 1967 restraining the respondent,
a British subject, in possession of a valid British passport,from leaving Ceylon.
In respect of item (i) above, a reference to the record kept by theCommission on September 2,1967 shows that the Commissioner f£ directedsummons be sent (to the respondent) by registered post to his addressin London, and that a copy (of the summons) be sent to the High Commis-sion to have it served (on the respondent) Crown Counsel concededthat the High Commissioner would have had no legal authority to servesummons or have summons served outside Ceylon. The Fiscal to whomdirections can be given under the Act to effect service of summons cannotdo so overseas. He conceded also that the summons directed in thesecircumstances would have lacked legal efficacy. Even where a personhas voluntarily accepted summons reaching him outside Ceylon therewould be no legal obligation on him to attend in obedience thereto. TheCommissioner appears, however, to have entertained the belief, erroneous•as it now turns out to be, that not only had he the power to order serviceof summons outside Ceylon, but that he had the power even to issue awarrant of arrest and, indeed, to proclaim the respondent. It wasproved by the record that on December 27, 1967 (the day after therespondent had arrived in Ceylon) the Commissioner had stated to therespondent’s wife who had appeared before him that day as a witnessthat while he cannot compel her to take the summons on her husband he" can take other steps equally drastic ”. This reference to “ drasticsteps ”, I have no doubt, was to the issue of warrant and proclamation,because on the very next day he stated to a proctor who appeared beforehim on the respondent’s behalf that if he failed to secure the attendanceof the respondent by effecting substituted service which he was directingthat day he would “ proceed to take the other steps I am empoweredto take to secure the attendance of a witness, such, for instance, as theissue of a warrant, or a proclamation if that also fails ”. The Commis-sioner very probably had in his mind the procedure available to a civilcourt in terms of section 131 of the Civil Procedure Code, but, as CrownCounsel suggested, overlooked the circumstance that those powers of acourt are not vested in a Commission appointed under the Commissionsof Inquiry Act.
Turning to item (ii), it was not disputed by Crown Counsel that at therequest of the Commissioner made on December 5, 1967, the prescribedauthority under the Immigrants and Emigrants Act had on December8, 1967 ordered the suspension of the passport of the respondent’s wifewho is a citizen of Ceylon, and that suspension was being continuedby another order similarly secured on January 28, 1968. It has beensuggested by Crown Counsel that suspension of a passport is a matterwhich is in the absolute discretion of the prescribed authority. Itdoes not become necessary on this occasion to examine the validity of
T. S. FERNANDO, J.—I} re Ratnagopal
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the proposition so suggested, and I therefore expressly refrain fromdoing so here. Speaking for myself, I think it appropriate to add thatthe right to freedom of movement is an important right of a citizen,and our courts may not be found unwilling on a proper occasion andin appropriate proceedings to consider whether executive discretion canbe equated to executive whim or caprice. In the present instance,having regard to the facts that (a) the respondent’s wife had, in obedienceto the summons issued by the Commission, attended and givenevidence, and (6) the Commissioner himself felt that she was not in aposition to give any useful evidence, doubts do arise about thenecessity of restricting her movements in the way ensured by theCommissioner.
The next item (iii) also concerns the wife of the respondent. It waspointed out to us that, on December 5, 1967, when a medical certificatewas submitted by Counsel appearing for the respondent’s wife to accountfor her inability to attend, the Commissioner inquired whether therewas any likelihood of her leaving Ceylon and received Counsel’sassurance that there was none. When a second medical certificate wassubmitted on the lady’s behalf on December 13, 1967, the Commissionerremarked that he could issue a “ commission ” to the Judicial MedicalOfficer or a gynaecologist to examine the lady, presumably becausehe entertained some doubt about the bona tides of the reason for non-attendance. The acceptance of an excuse for non-attendance on theground of illness may be made conditional on the person summonedagreeing to submit himself for medical examination. But there is, inmy opinion, no power even in a court for the issue of “ commissions ”of this kind to compel persons to submit themselves to medical examina-tion. Certainly Crown Counsel did not point to any provision of lawenabling this to be done or suggest that it could legally be done. Inthese circumstances, the respondent’s counsel submitted to us thatthis was another instance of a threat held out by the Commission to dosomething without legal authority therefor. That such orders for“ commissions ” have been or are often being made by courts is nogood reason for a Commission appointed under the Commissions ofInquiry Act also to resort to them. It was also urged on behalf of therespondent that on December 13 the Commissioner asked of the proctorfor the respondent’s wife what assurance there is that she will not joinher husband abroad. It was suggested that the question was a cynicalone considering that some days earlier the Commissioner had ensuredshe would not be able to leave the country, and I have myself experienceddifficulty in appreciating che necessity for it. It appears to have
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T. S. FERNANJX), J.—In re Ratnagapal
been in a similar strain that the Commissioner that very day in post-poning the taking of the evidence of the respondent’s wife for December27 remarked that he wanted “ to see to it that she makes no attemptto go away. I can take sufficient steps to prevent it
Let me now turn to item (iv) which concerns the detention of therespondent at the Katunayake airport on the afternoon of December 26,1967, when he disembarked at Colombo on a transit visa. The Commis-sioner had been informed by the proctor who had appeared for therespondent’s wife on some earlier day that the respondent was expectedin Colombo about Christmas time. The Commissioner had not beensuccessful in having summons served in England on the respondent,and obviously (and I must add not unnaturally) the Commissioner desiredto have service effected no sooner the respondent arrived in Ceylon.To that end the Commissioner had enlisted the services of the policeto provide information as to the correct address of the respondent duringhis visit to Ceylon. The police officer on duty at the airport to whomfell the duty of obtaining this information was required to make commu-nication with his superior officers at Colombo should the respondentdisembark at Colombo. It transpired in evidence before us that thispolice officer kept with him the respondent’s passport until he was ableto complete a telephone call to his said superior officers. As a con-sequence, the respondent would appear to have been detained for about15 minutes at the airport. While one must appreciate that the respond-ent, probably tired after a long journey and anxious to get away tohis wife’s house, was irritated by what he may well have considereduncalled for delay or detention, the entire incident is, in my opinion,trivial, and the connection of the Commissioner therewith is but remote.It appears to me to be a case of “ much ado about nothing ”.
The final item (v) is of a more substantial nature than the others. Thereis now no dispute over the fact that, as a result of a request made by theCommissioner, the Police had issued instructions on December 28, 1967—vide document X4—that the respondent should not be allowed to leaveCeylon. He could have been prevented from so leaving only byrestraining him, and the circumstances attending that restraint wouldhave rendered the person responsible guilty at least of the offence ofwrongful restraint. The respondent had been made aware of this order.Crown Counsel agreed that the order and the request that had promptedit were both quite illegal. The respondent is a British subject whoarrived in Ceylon on a British passport, and he was free to leave Ceylonat any time he desired provided he had not by some act or conduct ofhis rendered himself liable to be arrested or otherwise restrained. Itis a matter for no little regret that orders of this nature are issued
T. S. FERNANDO, J.—In re RcUnagopal
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apparently without adequate consideration either of their legality or theirpropriety. It is customary to include in a warrant issued by the Governor-General under the Commissions of Inquiry Act a direction to all policeofficers and other persons to render such assistance as may be appliedfor by the Commissioners. But the warrant itself specifies that theassistance that may be rendered is only such “ as may be properlyrendered ”. The police officers and other persons must therefore advisethemselves as to the propriety and legality of the assistance that theycan grant. It must follow that the Commissioners themselves owe aduty to the police officers and other persons to whom they addressrequests for assistance or information to confine such requests toproper and lawful ones.
Counsel for the respondent argued that, on the facts I have attemptedto outline shortly above, his client was reasonably justified in feelingapprehensive about further illegalities being committed or threatenedif he appeared before the Commission to give evidence. He contendedthat the question of justification must be looked at in the backgroundof the business rivalry alleged between companies in which the respondentwas interested and the companies of which the Commissioner is a director.Looked at in this way, he argued, the facts caused the respondent toentertain the belief that the Commissioner was biased, and this beliefin a bias constituted reasonable cause for the respondent to refuse togive evidence. We were invited by counsel to apply on this questionof the existence of reasonable cause a subjective test, but we felt quiteunable to agree that such a test would be the proper one.
If the case had been one of a court or of a person acting in a quasi-judicial capacity, only “ a real likelihood of bias ”, i.e., “ a real likelihoodof operative prejudice, whether conscious or unconscious ” would havedisqualified the court or such other person ;—see R. v. Camborne Justices,ex parte Pearce1. In that case the Court did not feel itself justified ingoing so far as Lord Esher, M. R. did in Eckersley v. Mersey Docks andHarbour Board2 when he said “not only must they not be biassed,but that, even though it be demonstrated that they would not be biassed,they ought not to act as judges in a matter where the circumstancesare such that people—not necessarily reasonable people, but manypeople—would suspect them of being biassed
The proper test to be applied is, in my opinion, an objective one,and I would formulate it somewhat on the following lines : Would areasonable man, in all the circumstances of the case, believe that there
1 (1954) A. E. R. 850.
%
(1894) 2 Q. B. 670.
436T. S. FERNANDO, J.—In re Ratnagopal
was a real likelihood of the Commissioner being biassed against him?I agree with the respondent’s counsel that the burden on a person seekingto show reasonable cause is to satisfy this objective test on a balance ofprobability. We were invited to have regard to the maxim that everyoneis presumed to know the law. Certainly such a presumption is particularlyvahd in the case of a person like the Commissioner with whom we areconcerned on this proceeding. Counsel therefore argued that the actsamounting to illegalities and threats of illegalities complained of by therespondent could be presumed to have been committed with actualknowledge of their illegal nature.
In applying the objective and not the subjective test, the reasonableman would be required to balance such inferences as could be drawnfrom the proved facts as would go to show that the Commissioner hadjustification to believe that the respondent was merely placing obstaclesin the way of having his evidence recorded with the inferences that wouldgo towards indicating the existence in the Commissioner of a bias orprejudice against the respondent. The record of the proceedings keptby the Commissioner from September 2, 1967 to January 8. 1968 (videcopy produced before us) has been submitted to a very minute exami-nation before us by counsel for the respondent. I think it evidencesthat the Commissioner’s fear that the respondent was endeavouring toavoid giving evidence was intrinsically justified. Therefore, evenapproaching the question of the illegalities referred to above, on theassumption that the Commissioner acted with a knowledge oftheir illegality, I do not think that, when the proceedings are consideredas a whole, we would be justified in reaching a conclusion that theobjective test we are required to apply here is satisfied.
The ordering of service of summons abroad, the suspension of thepassport of the respondent’s wife, the threat to issue “ commissions ”for her examination in the hospital by a doctor, the threat to issue awarrant for the apprehension of the respondent and to “proclaim”him, and the observations made by the Commissioner on more thanone occasion suggestive of a belief by him that the respondent is notdesirous of giving evidence are, all consistent, more with an anxietyon the part of the Commissioner to get on with the work entrusted tohim and investigate quickly any alleged “ abuses ” connected withGovernment contracts than with the existence of any real bias towardsthe respondent. It may be that in his enthusiasm for the performanceof the task entrusted to him he may well have felt irritated by whatappears to have struck him as obstruction on the part of the respondent
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I am not unmindful of the fact stressed by counsel for the respondentthat the record shows that lawyers appearing for the respondent aswell as for his wife had indicated right up to the time of the respondent’sarrival in Ceylon on December 26 that he was willing to give evidence.Nevertheless, all the matters complained of except the order to preventthe respondent leaving Ceylon are consistent more with the anxietyI have referred to above on the part of the Commissioner than to anyreal likelihood of bias, and no reasonable man could have thoughtotherwise. In these circumstances, could the illegal order (item v)have sufficed to tilt the balance in favour of the probability of thereasonable man reaching the contrary conclusion. This question,I am free to state, is not devoid of difficulty ; but, always bearing inmind that the burden of establishing reasonable cause is on the respondent,I do not consider it could because, in the context of the relevantproceedings, this illegal order was itself but the outcome of a continuingand pressing desire to secure the evidence of the respondent, if needbe, at any cost. In that view it must follow that the respondent hasfailed in establishing reasonable cause even on the basis of such of theallegations in paragraph 7 of the affidavit as have been proved.
Before concluding this judgment it is right to add one word more.With a view to avoiding recurrences of illegalities and irregularitiesof the kind that these contempt proceedings have brought to light,we hope that the Government will in the future ensure to Commissionersappointed under the Commissions of Inquiry Act legal advice in regardto the several steps that may require to be taken from time to time byCommissions in the discharge of their duties. Neglect to ensure thiscould expose police officers and other persons to prosecutions and civilsuits at the instance of parties affected.
Tambiah, J.—
I had the benefit of reading the judgments of my Lord the ChiefJustice and my brother T. S. Fernando, J. I am in agreement with theirfindings and the views expressed by them. However, I wish to add myown observations on a few matters.
There is overwhelming evidence to show that, despite the fact that therespondent abandoned Ceylon citizenship, and acquired British citizen-ship and resided in England, he has a residence in Ceylon where his wifeand children are living. In deciding the question of residence the fact ofresidence as -well as the intention to reside are factors which should betaken into account. It is possible for a citizen of the United Kingdom
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to have residence in another country for a particular period either forpurposes of holiday or business. The facts proved in this case showthat the respondent’s wife and children had a permanent residence inCeylon and the respondent himself, whenever he came to Ceylon,resided here with his wife.
Counsel for the respondent urged that the visits of the respondent toCeylon were in the nature of sojourns, but the evidence clearly establishesthat he came and resided with his wife for a particular period of time eachyear ever since he abandoned Ceylon citizenship. Further there isevidence that for business purposes it was necessary for him to have aresidence in Ceylon. Therefore I hold that he was a person resident inCeylon within the meaning of section 7 (c) of the Commissions of InquiryAct (Cap. 393).
My brother T. S. Fernando J. has fully dealt with the facts relating tothe alleged bias referred to by Counsel for the respondent in the course ofhis submissions. Although some of the acts of the Commissioner areillegal and cannot be justified, yet after very careful consideration, it isdifficult for me to take the view that he had a bias against the respondent.It is not in evidence that the respondent was known to him before.Some of the steps taken by the Commissioner, although not justified inlaw, were perhaps taken by him as he was apprehensive. The respondentwho was a citizen of the United Kingdom and whose visits to this countryare unpredictable, could not be got at in order to be examined by him.It is regrettable that the Commissioner should have adopted some stringentmethods which are against the rule of law and which are illegal. Butthe important question is whether the Commissioner has formed a biasto disbelieve any answer which would be given by the respondent toquestions put by him.
I fully agree with the findings of my brother T. S. Fernando J. that inan inquiry of this nature the Commissioner does not act judicially or quasi-judicially (vide Dias v. Abeywardena1). Proceedings of this nature areinquisitorial (vide article on “ Reports of Committees ” by A. E. W. Park,Modem Law Review, Vol. 30 (July 1967), p. 426 at 428). Even anadverse finding against the respondent could not in any way alter thelegal rights of the respondent. The Commission is a fact-findingCommission and has no legal consequences. (Vide Allen Berry <£r Co. v.
1 {1966) 68 N. L. II. 409.
TAMBIAH, J.—In Te Ratnagopal
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Vivian Bose1; The King v. Macfarlane.2) Therefore the question ofbias is not a factor that any reasonable man should take into accountin refusing to give evidence.
Further an analysis of section 12 (1) (b) of the Commissions of InquiryAct (Cap. 393) read with section 12 of the same Act shows that thiscourt will take cognizance of contempt of court only where a personrefuses to give an answer to a question put by a Commissioner, whichis reasonable or when he refuses to be sworn. The questions put bya Commissioner may be unreasonable if they did not touch on thematters directed to be inquired into by the Commission.
In this case it is too premature for us to find out the nature of thequestions which may be asked by the Commission. The evidence givenby the respondent’s wife shows that, although she is the Chairman of thecompany known as the Equipment and Construction Company Limited,she was unable to say where the books were or give any details aboutthis business. The Commissioner appears to have been at pains to getat the books of this Company. In these circumstances, the Commissionerrightly thought that the respondent, who was perhaps the brains behindthis business, would have been in a better position to give informationregarding the books. If the Commissioner had asked the question as towhere the books of the Company were, could it be said that it was anunreasonable question and that a reasonable man in the position of therespondent could have possibly objected to give an answer ? We arenow in the realm of speculation as to what questions the Commissionerwould have asked from the respondent. Therefore it was not reasonablefor the respondent to refuse to give evidence before the Commission.In these circumstances, it cannot be said that he had reasonable cause inrefusing to give evidence. In my view therefore, the respondent hascommitted the offence of contempt as envisaged in section 12 (1) of theCommissions of Inquiry Act (Cap. 393) and this court should takecognizance of such contempt under the provisions of section 12 (3) of theCommissions of Inquiry Act (Cap. 393). For these reasons I convict therespondent of the offence of contempt of which he is charged and sentencehim to pay a fine of Rs. 1000/- ; in default of fine he will serve a termof one month’s simple imprisonment.
Rule made absolute.
1 (1060) A. I. R„ Punjab, 86.
(1923) 32 Commonwealth Law Reports 518