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Supreme Court of Sri Lanka |
] [Hide Context] 70
JEYARAJ FERNANDOPULLE
v.
PREMACHANDRA DE SILVA AND OTHERS
SUPREME COURT.
G.P.S. DE SILVA, C. J.,
AMERASINGHE, J.,
WADUGODAPITIYA, J.,
RAMANATHAN, J. AND
ANANDACOOMARASWAMY, J.
S. C. APPLICATION NOS. 66 & 67/95.
JUNE 10, 1996.
Revision, Review or Re consideration of the judgment of the Supreme Court -
Practice of the Court-Curses curiae est lex curiae -
Judicial comity -Powers of
the Supreme Court - Powers of the Chief Justice - Constitution of Benches -
Finality of judgments and
orders of the Supreme Court -Constitution, Article 132
- Inherent Powers of the Court - The per incuriam principle - Relevance of
questions of general and public importance.
The violations of fundamental rights found to have been committed by the 10th,
11th, 13th and 14th respondents in Applications 66/95
and 67/95 were held to
have been instigated by the 1st Respondent-petitioner by a majority of three
judges of the Supreme Court.
The disagreement between the majority and minority
of the Bench was based on -
(i) the admissibility of a speech in Parliament made by the 1st
Respondent-petitioner and reported in Hansard for the purpose of
contradicting
his affidavit filed in Court having regard to the privileges enjoyed by him as a
member of Parliament;
(ii) the evidentiary value to be attached to the matters referred to in the
speech, having regard to the context in which it was
made.
The 1st Respondent-petitioner prayed that the Court be pleased to revise and/or
review and/or further consider the use of Hansard
by referring the same for
consideration by a fuller Bench.
The Acting Chief Justice nominated a Bench of five judges to hear the petition
of the 1st Respondent-petitioner, himself being one.
However of the nominated
Bench, the Acting Chief Justice declined to serve on the Bench and another
nominated Judge relinquished
his office to take over the office of
Attorney-General. Thereafter the present Bench was constituted to hear the case.
71
Held:
1. Usually, in the case of a petition, motion, application or letter addressed
either to the Chief Justice or to the Chief Justice
and the other Honourable
Judges of the Supreme Court, the Registrar submits it to the Chief Justice for
directions; if it pertains
to an appeal, proceeding or matter pending before or
decided by a Bench of the Court, the Chief Justice refers it to the Judges
who
heard the case to which the petition, motion, application or letter relates. If
upon consideration in Chambers of the documents
and affidavits submitted, an
oral hearing is, in the opinion of the Judges, not warranted, the Judges would
refuse to entertain
the matter. The Judges concerned may decide to hear the
party in support of his petition, motion or application. If they so decide
after
the hearing, they may reject it, and notice will not be issued on the other
party and the matter will be at an end. If the
Judges so decide, the Judges may
request the Chief Justice to constitute a Bench of five or more Judges to hear
the matter; or
the Judges to whom the matter had been referred in the first
place, may hear the matter and either grant the relief prayed for or
refuse to
grant relief. Where by an oversight the matter is listed before another Bench,
that Bench will direct that the matter
be listed before a Bench composed of the
Judges who made the order. Cursus curiae est lex curiae. The practice of the
Court is
the law of the Court. It is in accord with the conventions of judicial
comity.
2. It is an inveterate practice of the Court which the Court has regarded as
having hardened into a rule that the same Judges who
participated in the formal
hearing should constitute the new Bench or should also be included, as far as
possible in the new Bench
where a re-examination is decided. Not only may the
Judges who were supposed to be in error be the persons to whom the matter should
be addressed, they ought to be the persons to whom the matter should be
referred. Apart from the need to observe the conventions
of judicial comity,
there is the further consideration that, unless the practice of the Court in
this regard is adhered to, the
Court's position as the final court will be
placed in jeopardy.
3 (i) When the Supreme Court has decided a matter, the matter is at an end and
there is no occasion for other judges to be called
upon to review or revise a
matter. The Supreme Court is a creature of statute and its powers are statutory.
The Court has no statutory
jurisdiction conferred by the Constitution or by any
other law to rehear, review, alter or vary its decision. Decisions of the
Supreme Court are final.
(ii) As a general rule, no Court has power to rehear, review, alter or vary any
judgment or order made by it after it has been entered.
72
(iii) A Court has no power to
amend or set aside its judgment or order where, it has come to light or if it
transpires that the
judgment or order has been obtained by fraud or false
evidence. In such cases relief must be sought by way of appeal or where
appropriate,
by separate action, to set aside the judgment or order. The object
of the rule is to bring litigation to finality.
4. However all Courts have inherent power in certain circumstances to revise an
order made by them such as -
(i) An order which has not attained finality according to the law or practice
obtaining in a Court can be revoked or recalled by
the Judge or Judges who made
the order, acting with discretion exercised judicially and not capriciously.
(ii) When a person invokes the exercise of inherent powers of the Court, two
questions must be asked by the Court
(a) Is it a case which comes within the scope of the inherent powers of the
Court?
(b) Is it one in which those powers should be exercised?
(iii) A clerical mistake in a judgment or order or some error arising in a
judgment or order from an accidental slip or omission
may be corrected.
(iv) A Court has power to vary its own orders in such a way-as to carry out its
own meaning and where the language is doubtful,
to make it plain or to amend it
where a party has been wrongly named or described but not if it would change the
substance of the
judgment.
(v) A judgment against a dead party or non-existent Company or in certain
circumstances a judgment entered in default or of consent
will be set aside.
(vi) The attainment of justice is a guiding factor.
(vii) An order made on wrong facts given to the prejudice of a party will be set
aside by way of remedying the injustice caused.
5. Public or general importance of a matter or dissent by a minority of the
Judges constituting the Bench does not give the Chief
Justice the authority
73
to constitute an appellate
division of the Supreme Court to review and revise its own decisions. Apart from
exceptional instances
in which it has been statutorily vested with jurisdiction
to express its opinions, the business of the Court is adjudication. A
"question"
or "issue" of general or public importance in the abstract cannot be the subject
of a judgment of
the Supreme Court - it is not a matter susceptible to
adjudication. A judgment is a judicial determination of a cause agitated between
real parties; upon which a real interest has been settled.
6. When any division of the Supreme Court constituted in terms of the
Constitution sits together, it does so as the Supreme Court.
It is one Court
though it usually sits in several divisions. Each division has co-ordinate
jurisdiction. What is conveniently,
but inaccurately called a "fuller Bench" has
no greater powers or jurisdiction than any division of the Court though a
decision of such a court carries greater weight. The judgment of the Supreme
Court shall, when it is not an unanimous decision,
be the decision of the
majority regardless of the fact that it may, in the opinion of any person
whomsoever, be wrong. Nor is it
open to anyone to devalue a decision of the
Court on the assumption that one or more judges "merely agreed" with the opinion
of another judge.
7. Article 132 (3) does not confer any right of appeal, revision or review. It
has always been taken for granted that a matter is
referred to a Bench of five
or more judges by the Chief Justice, whether of his own motion, or at the
request of two or more judges
hearing the matter, or on the application of a
party, because the question is one of general and public importance. Article 132
provides for the manner in which the jurisdiction of the Court may be ordinarily
exercised. It does not confer any jurisdiction
on the Court nor does it empower
the Chief Justice to refer any matter of public or general importance to a Bench
of five or more
judges. It empowers him to constitute a Bench of five or more
judges to hear an appeal, proceeding or matter which the Court has
jurisdiction
to entertain and decide or determine. The Court has no statutory jurisdiction to
re-hear, reconsider, revise, review,
vary or set aside its own orders.
Consequently, the Chief Justice cannot refer a matter to a Bench of five or more
judges for the
purpose of revising, reviewing, varying or setting aside a
decision of the court. The fact that in the opinion of the Chief Justice
the
question involved is a matter of general or public importance makes no
difference.
8. The Court has inherent powers to correct decisions made per incuriam. A
decision will be regarded as given per incuriam if it
was in ignorance of some
inconsistent statute or binding decision - wherefore some part of the decision
or some step in the reasoning
on which it is based is found on that account to
be demonstrably wrong.
74
9. The fact that the question
involved is a matter of general or public importance has never been regarded as
a ground for the exercise
of the Courts' inherent powers.
Per Amerasinghe, J:
"The inherent powers of a Court are adjuncts to existing jurisdiction to remedy
injustice. They cannot be made the source of
new jurisdictions to revise a
judgement rendered by Court".
Cases referred to
1.Gamage William Singho and Others S.C. LA No. 60/96.
2.All Ceylon Commercial and Industrial Workers Union v. The Ceylon Petroleum
Corporation and Others [1995] 2 Sri L.R. 295, 296, 297.
3. Re Ganeshanathan's Application - S. C. Application No. 20/83S.C.
Minutes of 21.07.1983.
4. Hettiarachchi v. Seneviratne and Others (No. 2) - [1994] 3 Sri L. R.
293, 296, 297 - 299, 304 - 305.
5. Senerath v. Chandraratne, Commissioner of Excise and Others [1995] 1
Sri L. R. 209, 212, 216.
6. Suren Wickremasinghe and Others v. Cornel Perera S.C. (SLA) No. 49/96
S. C. Minutes of 21.3.1996.
7. Wayland v. Transvaal Government 1904 TS 758.
8. Moosajees Ltd., v. Fernando and Others (1966) 68 N.L.R. 414.
9. Liyanage and Others v. The Queen (1965) 68 N.L.R. 265, 420.
10. Ganeshanatham v. Vivienne Goonewardene [1984] 1 Sri L. R. 319, 329,
340, 355, 377, 378.
11. Vivienne Goonewardene v. Hector Perera and Others [1983] 1 Sri L.R.
305.
12. Tucker v. New Brunswick Trading Company of London 1890 Ch. D. 249.
13. Palitha v. O.I.C. Police Station, Polonnaruwa and Others [1993] 1 Sri
L. R. 161.
14. Billimoria v. Minister of Lands [1978-80] 1 Sri L.R. 10, 14, 15.
15. Young v. Bristol Aeroplane Co., [1944] 2 All E. R. 293, 298, 300.
16. Marambe Kumarihamy v. Perera [1919] VI C.W.R. 325.
17. Thynne Marchioness of Bath v. Thynne (Marquess of Bath) [1955] 3 All
E. R. 129, 145, 146.
18. Mapalathan v. Elayavan (1939) 41 N.L.R. 115.
19. Elo Singho v. Joseph (1948) 49 N.L.R. 312.
20. The London Street Tramways Company Limited v. The London County Council
[1898] AC 375, 380.
21. Duchess of Kingston's Case 20 St. Tr. 355, 478, 479.
75
22. Bandon v. Becher 3 CI.
& F 479, 510.
23. Husaam Haj Yihyeh v. The State of Israel: The Jerusalem Post Law Reports
reported in Asher Felix Landau 1993 p. 234.
24. Wijesinghe et al v. Uluwita (1933) 34 N.L.R. 362, 364.
25. Easwaralingam v. Sivagnanasunderam (1962) 64 N.L.R. 396, 398.
26. Meier v. Meier (1948) p. 89, 95.
27. Mohamed v. Annamalai Chettiar (1932) 12 CL Rec. 228, 229.
28. Padma Fernando v. T. S. Fernando (1956) 58 N.L.R. 262.
29. Lawrie v. Lees (1881) 7 App. Cas. 19, 34.
30. Re Swire (1895) 30 CH. D. 239, 246.
31. Paul E. de Costa & Sons v. S. Gunaratne (1967) 71 N.L.R. 214, 215.
32. Hatton v. Harris (1892) A.C. 547, 560.
33. Raju v. Jacob (1968) 73 N.L.R. 517.
34. Kariapperuma and Another v. D. J. Kotelawala (1971) 77 N.L.R. 193.
35. Valliammai Atchi v. O. L. M. Abdul Majeed 45 N.L.R. 169.
36. Jonga v. Nanduwa 45 N.L.R. 128.
37. Menchinahamy v. Muniweera (1950) 52 N.L.R. 409, 414 - 415.
38. Caldera v. Santiagopillai (1920) 22 N.L.R. 155.
39. Juan Perera v. Stephen Fernando (1902) 2 Brown Rep. 5.
40. Thambiraja v. Sinnamma (1935) 36 N.L.R. 442.
41. Publis v. Eugena Hamy (1948) 50 N.L.R. 346.
42. Sirivasa Thero v. Sudassi Thero (1960) 63 N.L.R. 31,33,34.
43. Rodger v. Comptoir D' Escompte de Paris (1871) LR 3 1/4C 465.
44. Kadiramanthamby and Another v. Lebbethamby Hadjiar (1971) 75 N.L.R.
228, 231.
45. Paulusz v. Perera [1933] 34 NLR 433
46. Loku Banda v. Assen (1897) 2 N.L.R. 31.
47. Karuppannan v. Commissioner for Registration of Indian and Pakistani
Residents (1953) 54 N.L.R. 481.
48. Velupillai v. The Chairman Urban District Council, Jaffna (1936) 16
CL Rec. 75, 76.
49. The Police Officer of Mawalla v. Galapatta (1915) 1CWR 197.
50. P. C. Batticaloa 8306, In Revision (1921) 23 N.L.R. 475.
51. The King v. Baron Silva et al (1926) 4 Times of Ceylon Reports 3.
52. Ranmenikhamy and Another v. Tissera and Others (1962) 65 N.L.R. 214,
215.
53. Farrell v. Alexander (1976) 1 All ER 129, 145.
54. Huddersfield Police Authority v. Watson (1947) 2 All ER 193, 196.
55. Alasuppillai v. Yavetpillai (1948) 39 CLW 107.
56. Morelle Ltd., v. Wakeling (1955) 1 All ER 708,718.
57. Craig v. Kanssen (1943) 1 All ER 108.
58. Chief Kofi Forfie v. Barima Kwabena Sheifah Kenyaschene (1958) 1 All
ER 289 (PC).
76
59. Woolfenden v. Woolenden
(1947) 2 All ER 653.
60. Nisha Sudarshi Ganeshi Kumarasena v. Sub-Inspector Sriyantha and Others
SC Application 257/93 - SC Minutes 23.5.1994.
61. Re a Solicitor [1944] 2 All ER 432, 434.
62. Rost v. Edwards and Others (1990) 2 All ER 641, 644, 645.
63. A. G. of Ceylon v. De Livera (1962) 3 All ER 1066, 1069, (1963)AC
103, 120.
64. Dissanayake v. Kaleel [1993] 2 Sri LR 135.
65. Jayatillake v. Kaleel [1994] 1 Sri LR 319.
66. London Street & Tramways Co., v. London Council (1898) AC 375, 380,
381.
67. Jones v. National Coal Board (1957) 2 QB 55, 64.
68. Broome v. Cassell & Co., Ltd., & Another(1971) 2 All ER 187, 198 -
200.
69. Rookes v. Barnard [1964] 1 All ER 367.
70. Brown v. Deam and Another (1910) AC 373, 375.
Petition for revision and/or review and/or further consideration by a fuller
Bench of the use of Hansard in Court Proceedings.
R. K. W. Goonesekera with J.C. Weliamuna for the 1st
Respondent-Petitioner in S. C. Application No. 66/95.
Faiz Musthapa, P.C. with Dr. J. Wickramaratne, Mahanama de Silva
and S. M. Senaratne for the 1st Respondent - Petitioner in S.C.
Application No. 67/ 95.
T. Marapana P.C. with D. Weerasuriya, N. Ladduwahetty, Jayantha
Fernando, A Premaratne and S. Cooray for the 1st-29th
Petitioners-Respondents in S. C. Application No. 67/95.
Upawansa Yapa P. C., Solicitor-General with Chanaka de Silva, S. C.
for the Attorney-General.
Cur. adv. vult.
July 09, 1996.
AMERASINGHE,J.
This is a matter relating to a petition by Mr. Jeyaraj Fernandopulle, M.P.,
dated the 19th of December, 1995, addressed to his Lordship
the Chief Justice
and the other Honourable Judges of the Supreme Court.
77
Two applications numbered 66/95
and 67/95 had been filed in this Court under Article 126 of the Constitution
alleging that certain
fundamental rights of the petitioners in those
applications had been violated by the respondents cited in those applications.
Mr. Jeyaraj Fernandopulle, M.P., was the 1st Respondent in both those
applications. Since he is the petitioner in the matter before
us, I shall
hereafter, unless the context otherwise requires, refer to him as the 1st
Respondent-petitioner.
Argument on the two applications was heard on the 13th and 27th of September by
a Bench of three Judges. Their Lordships took time
for consideration. Judgment
was delivered on the 30th of November 1995. Albeit in separate judgments, the
three Judges agreed that
the petitioners were entitled to a declaration that
their fundamental rights under Articles 12(1), 12 (2) and 14(1) (c) read with
14(1) (g) had been violated by the 10th, 11th, 13th and 14th respondents; and to
the reliefs granted by the Court.
However, although two of the Judges were of the view that the violations had
resulted from the first Respondent-Petitioner's instigation
and that he should
therefore pay a sum of Rs. 50,000 as costs; Rs. 25,000 to the
petitioner-society, the 63rd petitioner, in S.C.
Application No. 66/95 and Rs.
25,000 to the petitioner-society, the 30th Petitioner, in S. C. Application No.
67/95, the third
Judge was of the view that the first Respondent-Petitioner had
not been proved to have acted in violation of any of the fundamental
rights of
the petitioners, and consequently that he was not liable to pay any sum by way
of costs.
The disagreement between the majority and minority was based on -
* the admissibility of a speech in Parliament made by the 1st Respondent- Petitioner and reported in Hansard for the purpose of contradicting the affidavit of the 1st Respondent-Petitioner, having regard to the privileges enjoyed by him as a Member of Parliament;
* the evidentiary value to be attached to the matters referred to in the speech, having regard to the context in which it was made.
On the 19th of December, 1995, the 1st Respondent-Petitioner submitted a petition supported by an affidavit to this Court. After setting
78
out the views expressed by the
Judges on these matters, he stated in paragraph 16 of his petition that "the
question of the
use of Hansard to assess the veracity of the affidavit of the
1st Respondent (petitioner) is a matter of public or general importance
and
having regard to the expression of dissent by (one of the Judges), the issue
merits further consideration and/or review and/or
revision by a fuller Bench of
Your Lordships' Court".
In his petition, the 1st Respondent-Petitioner prayed that this Court be
pleased,
"(a) to revise and/or review and/or further consider the aforesaid issue of the
use of Hansard, by referring the same for consideration
by a fuller Bench, and
(b) to grant such other and further relief as Your Lordships' Court shall seem
meet."
When a petition addressed to his Lordship the Chief Justice and the other Judges
of the Supreme Court relating to a concluded matter
is received, the Registrar
of the Court submits it with the record of the case to his Lordship the Chief
Justice for directions.
In the matter before us, since his Lordship the Chief
Justice was out of the country, the Registrar submitted the documents to his
Lordship the Acting Chief Justice on the 19th of December, 1995. On the 22nd of
December, 1995, his Lordship the Acting Chief Justice
stated as follows:
The 1st Respondent-(Petitioner) in SC (FR) Applications Nos. 66/ 95 and 67/95
has made application in terms of Article 132 (3) of
the Constitution by way of
petition and affidavit, moving that a fuller bench of the Supreme Court be
constituted to consider a
question which he says is a matter of general and
public importance that arose in the course of hearings before a Bench of 3
Judges
in the aforesaid Fundamental Rights applications; to wit: that the use of
the contents of Hansard - P 16 - containing speeches,
debates and proceedings in
Parliament by the majority of Judges of the said Court, to assess the veracity
or reliability or acceptability
of affidavits filed by him as 1st Respondent to
those applications, and the decision of the said majority as to the legal
relevance
of
79
speeches, debates and proceedings
in Parliament as contained in Hansard amounts to a violation of the freedom of
speech, debates
and proceedings in Parliament in terms of the Parliament (Powers
and Privileges) Act recognized and kept alive by Article 67 of
the Constitution.
A perusal of the judgments of the Court that heard the said applications shows
a strong division of opinion on this question of
the use of speeches, debates
and proceedings in Parliament as reflected in Hansard. The majority of judges of
that Court used extracts
from Hansard to discredit the affidavits of the 1st
Respondent-Petitioner filed in the said applications and declare the contents
of
the affidavits as unreliable. The minority judgment sharply disapproves of the
use to which extracts from Hansard have been
put by the said majority of judges
and has concluded that the privilege of freedom of speech and debate associated
with proceedings
in Parliament -quote - "being the cornerstone of a democratic
Parliamentary system" - has been gravely prejudiced and
has ruled out its use to
impeach the creditworthiness of the 1st Respondent-Petitioner (sic) in his
responses by way of affidavit
to the complaint of infringement of the
Petitioners-Respondents, fundamental rights.
I am of opinion that the question whether speeches, debates and proceedings in
Parliament and reflected in Hansard can be used as
being legally relevant
evidence to compare and contrast and confirm or reject or discredit as
inconsistent or unreliable affidavits
of members of Parliament or of other
persons filed in Court proceedings or before other Tribunals referring to
events and matters
outside Parliament is a question of general and public
importance, all privileges of Parliament being part of the general and public
law of the land which ought to be considered and decided by a fuller Bench
comprising five (5) judges of the Supreme Court.
I am further of the opinion that the nomination of any of the Honourable Judges
who comprised the Court of three (3) Judges to a
fuller Bench is not appropriate
in the circumstances. One of the Hon. Judges that comprised the majority dealt
with the point raised
in this petition only as a response to the view of the
other who expressed the minority dissenting view, while the third Hon. Judge
80
merely agreed with the view that
now forms the majority viewpoint that has given rise to the present petition.
The Hon. Judge who
expressed the minority viewpoint thereupon responded to the
majority view point in his judgment.
I accordingly nominate the following Hon. Judges to constitute a Bench of Five
(5) Judges of the Supreme Court, namely,
Hon. G. P. S. de Silva
Hon. G. R. T. D. Bandaranayake
Hon. P. Ramanathan
Hon. S. W. B. Wadugodapitiya
Hon. S. N. Silva
to hear, consider and determine the question whether speeches, debates and
proceedings in Parliament as reflected in Hansard can
be used as being legally
relevant evidence to compare and contrast and confirm or reject or discredit as
inconsistent or unreliable,
affidavits of members of Parliament or of other
persons filed in Court proceedings or before other Tribunals referring to events
or matters outside Parliament, or that they cannot be so used for other
purposes, for to do so could strike at or inhibit the freedom
of speech, debate
and proceedings in Parliament there by constituting a breach of the privileges
of Parliament as recognized by
law; and to make consequential orders thereto.
Consequently the following findings and orders made and reliefs awarded in each
case and contained in the judgment of Hon. Wijetunge, J. at pp. 36 and 37 noted
as (i) and (iv) thereof with which Hon. Fernando,
J. has agreed, consequent to
the use of Hansard, would lie in suspense until the Fuller Bench of Five (5)
judges has come to its
decision, as those orders and reliefs affect the 1st
Respondent-Petitioner in each case; to wit:
(a) the finding that the fundamental rights of each individual
petitioner-Respondent in each case, enshrined in Articles 12 (1),12
(2), 14 (1)
(g) read with 14 (1) (c) of the Constitution have been infringed by the 1st
Respondent-Petitioner;
(b) the finding that the said violations resulted from the 1st
Respondent-Petitioner's instigation; and the order for costs in
the stated
81
sum of money to be paid in each
case by the 1st Respondent Petitioner.
Registrar to notify the parties in each case of the nomination of a fuller bench
of five Judges of the Supreme Court to consider
and decide the above question of
general and public importance marked X and Y and to inform them of the date of
hearing.
Registrar to inform the Judges of the Fuller Bench of said nomination.
Hon. G. R. T. D. Bandaranayake
(Acting) Chief Justice
22nd December 1995
PS.
REGISTRAR
Copies of documents placed before Bench of Three (3) Judges and copies of the
petition and affidavit of the present 1st Respondent
Petitioner to be made
available to the judges of the Fuller Bench.
TDB
22/12/95
In response to the directions of
the Acting Chief Justice, the Registrar of the Supreme Court on the 29th of
February 1996, notified
the parties in S. C. Applications Nos. 66/95 and 67/95
as follows:
WHEREAS the 1st Respondent petitioner abovenamed has filed an application
that this matter be referred to a fuller Bench to revise and/or
review and/or
further consider, the issue of the use of Hansard, take notice that this matter
has been listed for hearing on the
10th, 11th & 12th of June 1996 before a
Divisional Bench of the Supreme Court to consider and decide the following
questions:
(i) Whether speeches, debates and proceedings in Parliament
82
and reflected in Hansard can be
used as being legally relevant evidence to compare and contrast and confirm or
reject or discredit
as inconsistent or unreliable, affidavits of Members of
Parliament or of other persons filed in Court proceedings or before other
Tribunals referring to events and matters outside Parliament is a question of
general and public importance, all privileges of
Parliament being part of the
general and public law of the land which ought to be considered and decided by a
Fuller Bench comprising
5 (five) Judges of the Supreme Court.
(ii) Whether speeches, debates and proceedings in Parliament as reflected in
Hansard can be used as being legally relevant evidence
to compare and contrast
and confirm or reject or discredit as inconsistent or unreliable, affidavits of
Members of Parliament or
of other persons filed in Court proceedings or before
other Tribunals referring to events or matters outside Parliament, or that
they
cannot be so used for the above purposes, for to do so would strike at or
inhibit the freedom of speech, debate and proceedings
in Parliament, thereby
constituting a breach of the privileges of Parliament as recognized by Law.
And to make consequential orders thereto.
Copies of petition and affidavit filed by the 1st Respondent-petitioner are
annexed.
Registrar of the Supreme Court
The Bench nominated by the Acting Chief Justice could not be constituted, for although his Lordship the Hon. Mr. Justice G. R. T. D. Bandaranayake, when he was Acting Chief Justice, had nominated himself as one of the Bench of five Judges to hear the matter, his Lordship had later indicated to the Honourable Chief Justice that he did not wish to participate in the hearing and determination of the matter. The Hon. Mr. Justice S. N. Silva who had been nominated by the Acting Chief Justice, had, since his nomination, relinquished office to assume duties as Attorney-General. The parties had, as we have seen, been noticed to appear. The matter of the petition was, therefore, listed to be considered by a Bench constituted by His Lordship the Chief Justice.
83
CURSUS CURIAE
Usually, in the case of a petition, motion, application or letter addressed
either to the Chief Justice or to the Chief Justice
and the other Honourable
Judges of the Supreme Court, the Registrar submits it to the Chief Justice for
directions; if it pertains
to an appeal, proceeding or matter pending before or
decided by a Bench of the Court, the Chief Justice refers it to the Judges
who
heard the case to which the petition, motion, application or letter relates. If
upon consideration in Chambers of the documents
and affidavits submitted, an
oral hearing is, in the opinion of the Judges, not warranted, the Judges would
refuse to entertain
the matter. E.g. see Gamage William Singho and Others.(1)
The Judges concerned may decide to hear the party in support of his
petition, motion or application. If they so decide after
the hearing, they may
reject it, and notice will not be issued on the other party and the matter will
be at an end: All Ceylon Commercial and Industrial Workers Union v. The
Ceylon Petroleum Corporation and Others,(2) If the Judges so
decide, the parties may be noticed and after hearing them, the Judges may
request the Chief Justice to constitute
a Bench of five or more Judges to hear
the matter: Re Ganeshanatham's Application, (3) or the Judges
to whom the matter had been referred to in the first place, may hear the matter
and either grant the relief
prayed for (e.g. see Hettiarachchi v. Seneviratne,(4);
or refuse to grant relief: (e.g. see Senerath v. Chandraratne, Commissioner
of Excise and Others,(5) Suren Wickramasinghe and Others v.
Cornel Perera.(6) Where by an oversight the matter is listed
before another Bench, that Bench will direct that the matter be listed before a
bench
composed of the Judges who made the order: Senerath v. Chandraratne.(5)
Cursus curiae est lex curiae. The practice of the court is the law of the Court.
Wessels, J in Wayland v. Transvaal Government,(7) held that it
is no argument to say that there was no actual contested case in which this
procedure has been laid down; for
a course of procedure may be adopted and hold
good even though there has been no decision on the point. However, in Sri Lanka
the
practice of the Court has been recognized in judgments of the Court.
The practice of the Court in these matters is in accordance with the conventions
of judicial comity. In Moosajees Ltd. v. Fernando and
84
Others,(8) the
applications for writs of certiorari had been referred under section 51 of the
Courts Ordinance for hearing before five
Judges in regard mainly to the question
whether the tribunal concerned in each application was a "judicial officer".
After expressing their views on the question, and assuming that the tribunals
had jurisdiction, it was ordered that the applications
be set down for further
hearing before a Bench of two Judges upon other matters raised by the respective
petitioners. As the two
Judges before whom they were listed for further hearing
were unable to agree in regard to the order they should make, the applications
came to be listed before another Court of five Judges. After the earlier Court
of five Judges had delivered its judgment, the Privy
Council decided Liyanage
and Others v. The Queen, (9). In the light of that decision,
which recognized a separation of powers as between the Legislature, the
Executive and the
Judiciary, the tribunals concerned had no jurisdiction to
entertain the references. It was held by the majority (4-1) that, inasmuch
as
the earlier Court of five Judges had not entered a decree finally disposing of
the applications, it was open to the later Court
of five Judges to re-examine,
in the light of the decision of the Privy Council, the supreme and ultimate
appellate authority at
that time, the question whether the tribunals had
jurisdiction. H. N. G. Fernando, SPJ at p.420 said:
In the interests of judicial comity, it would certainly have been preferable if
the same five Judges who participated in the former
hearings of these
applications had also constituted the present Bench. But even if my brother Sri
Skanda Rajah had been a member
of this Bench, his presence would have made no
difference to the ultimate decision. Even on the assumption that he would have
adhered
to his former opinion, the majority decision of the Bench (The Chief
Justice, my brother Fernando and myself) would be that the
tribunals in these
cases had no jurisdiction and that the relief sought by the petitioners should
be granted. That being so, the
absence from this Bench of one member of the
former Bench becomes a technical consideration only, and I doubt whether our
revocation
of the former orders will constitute a precedent inconsistent with
the conventions of judicial comity. The circumstances of the
revocation are
probably unique, in that the error of a former judgment has been manifested in a
decision of the Privy Council delivered
before the former judgment had become
effective by the passing of a decree determining the rights and obligations of
the parties.
85
Ganeshanatham v. Vivienne Goonewardene,(10) was no exception. Ratwatte, Colin Thorne and Soza, JJ had heard and decided Vivienne Goonewardene v. Hector Perera and Others, (11), in which it had been held that V. Ganeshanatham had been responsible for the arrest of the petitioner in violation of her fundamental rights. The decision of the Court in Vivienne Goonewardene v. Hector Perera was based upon the affidavit of Ganeshanatham filed by the 2nd Respondent, the Inspector-General of Police, in which Ganeshanatham had stated that he had arrested Mrs. Goonewardene. Ganeshanatham filed an application complaining that the finding against him was made per incuriam. Ganeshanatham's application was listed before a Bench- comprising the same Judges who had heard Vivienne Goonewardene's case. After hearing counsel, on the 21st of July 1983, the Court decided as follows:
On a
consideration of the papers filed before us and the arguments adduced by counsel
we are of the view that the following questions
arise for determination
preliminarily, namely:
1. Has the Supreme Court jurisdiction to review or revise in any manner its own
judgment in S.C. Application No. 20/83?
2. If so,
(a) on what grounds or under what circumstances can such jurisdiction be
exercised?
(b) what procedure should be followed to obtain relief?
In view of the importance of these questions, we think that a fuller Bench of
the Supreme Court than at present constituted, should
finally decide them.
Acting under Article 132 (3) (ii) of the Constitution, we therefore request His
Lordship the Chief Justice
to put these questions up for early decision before a
fuller Bench of the Supreme Court by virtue of the powers vested in him by
Article 132 (3) of the Constitution.
The Chief Justice acceded to the request of the three Judges. The Hon. Mr. Justice Colin Thome, who had been one of the Judges who had decided the earlier matter was one of the Judges of the Bench of seven
86
Judges nominated by the Chief
Justice. With great respect, I find it difficult to understand why his Lordship
the Acting Chief Justice
acted in disregard of an inveterate practice of the
Court that this Court has regarded as having hardened into a rule. I
respectfully
regret my inability to accept his Lordship's explanation in his
directions of 22nd December 1995, namely, that the Bench was divided
in its
opinion, for excluding the Honourable Judges who heard the case from a
consideration of the petition before us. I respectfully
find myself in
disagreement with the view expressed by his Lordship the Acting Chief Justice
that he felt constrained to refer
the matter to a "fuller Bench" because "One of
the Honourable Judges that comprised the majority dealt with the point
raised in
this petition only as a response to the view of the other who expressed the
minority dissenting view, while the third
Hon. Judge merely agreed with the
view that now forms the majority viewpoint that has given rise to the present
petition. The Hon. Judge who expressed the minority viewpoint thereupon
responded to the majority viewpoint in his judgment."
The emphasis is mine.
Not only may the Judges who were supposed to be in error be the persons to whom
the matter should be addressed, they ought to be
the persons to whom the matter
should be referred to. (Cf. Tucker v. New Brunswick Trading Company of London
(12)) Apart from the need to observe the conventions of judicial
comity, there is the further consideration that, unless the practice
of the
Court in this regard is adhered to, the Court's position as the final Court will
be placed in jeopardy.
When the Supreme Court has decided a matter, the matter is at an end, and there
is no occasion for other Judges to be called upon
to review or revise a matter.
However, as we shall see, the Court has inherent power in certain circumstances
to revise an order
made by it. On the basis that one division of the Court may
do what another may do, it would be competent for one, division, in
the exercise
of that power, to set aside an order of another division of the Court. This must
be so, for there may be circumstances
in which it may not be possible for the
review to be undertaken by the same Bench: For instance, one or more of the
Judges who
decided the first matter may not be available, due to absence abroad,
or retirement or some such reason. E.g. see Palitha
87
O.I.C. Police Station
Polonnaruwa and Others,(13) Justice cannot be denied because one
or more of the Judges are not available. However, where they are available, such
matters
should be considered by the same Bench of Judges. In Billimoria v.
Minister of Lands,(14) Samarakoon, CJ said:
The Attorney-General contended that it was competent for one Court to set aside
an order made per incuriam by another Bench of the
same Court. Generally this
would be so. But it has been the practice of our Courts for parties or their
Counsel to bring the error
to the notice of the Judge or Judges who made the
order so that he or they can correct the order. Indeed this has always been a
matter of courtesy between Bench and Bar and I regret to note that it has not
been done in this instance nor has the second Court
thought it fit to direct
Counsel to make the application to the Court that made the stay order.
We have advanced beyond graceful politeness and considerateness in intercourse
as a justification of the practice: The Supreme Court
in Suren Wickramasinghe
& Others v. Cornel Perera & Others, (5) held that "law, practice
and tradition" required that matters pertaining to a decided case should be
referred to
the Court composed of the Judges who had heard the case. The
practice of the Court in this regard is the law of the Court -lex curiae-
and it
must be given effect to in the same way in which a rule of Court must be given
effect to. (Cf. the observations of Lord
Greene MR. in Young v. Bristol
Aeroplane Co,(15) where his Lordship said that "The Rules of the
Supreme Court have statutory force and the court is bound to give effect
to them
as to a statute.")
In the matter before us, following the usual practice of referring a matter for
reconsideration to the Judges who decided it was
more justified than ever,
because the complaint revolves around what transpired in Court and afterwards
when the Judges were considering
the matter. The Judges who decided the matter
seemed to be the obvious choice. In fact, thinking aloud, I did suggest during
the
argument that this might perhaps yet be done. Upon further consideration,
however, since the parties are before us on notice, and
there is sufficient
material in the Judgments in S. C. Applications 66/95 and 67/95 to decide the
matter, I am of the view that
we should deal with the matter; but the
88
course of action we take in the
extraordinary circumstances of this case should not be regarded as a precedent
for departing from
the rule established by practice. An exception confirms the
rule.
STATUTORY JURISDICTION
When the matter of the petition of the 1st Respondent-Petitioner was taken up
for consideration by this Court, Mr. Marapana submitted
that the Court had no
jurisdiction conferred on it by the Constitution or by any other law to accede
to the prayer of the 1st Respondent-petitioner
to revise or review the decision
of the Court. .
An order which has not attained finality according to the law or practice
obtaining in a Court can be revoked or recalled by the
Judge or Judges who made
the order, acting with discretion, exercised judicially and not capriciously. (See
Moosajees Ltd. v. P.O. Fernando and Others.(8)) However, as a
general rule, no court has power to rehear, review, alter or vary any judgment
or order made by it after it
has been entered (cf. Marambe Kumarihamy v.
Perera,(16)) either in an application made in the original action
or matter or in a fresh action brought to review the judgment or order.
If it is
suggested that a Court has come to an erroneous decision either in regard to
factor law, then amendment of the judgement
or order cannot be sought, but
recourse must be had to an appeal to the extent to which the appeal is
available. (See per Morris, LJ in Thynne (Marchioness of Bath) v. Thynne
(Marquess of Bath).(17) A Court has no power to amend or set
aside its judgment or order where it has come to light or if it transpires that
the judgment
or order has been obtained by fraud or false evidence. In such
cases relief must be sought by way of appeal or where appropriate,
by separate
action, to set aside the judgment or order. (Halsbury, paragraph 556). The
object of the rule is to bring litigation
to finality. The rule is subject to
certain exceptions (See Halsbury, Vol. 26 paragraph 556) which I shall deal with
later, but
taking one thing at a time, let me deal with the question of
statutory jurisdiction.
In Ganeshanatham v. Vivienne Goonewardene and Three Others, (supra),
Ganeshanatham sought relief from the Supreme Court in the exercise of the
revisionary and inherent powers of the Court. His complaint
was that another
Bench of the Court had, to his detriment, acted per incuriam for the several
reasons set out in his application.
89
Samarakoon, CJ (at pp. 327 - 328)
referred to the provisions of the Constitution conferring jurisdiction on the
Supreme Court and
stated that none of those provisions gave the court a
jurisdiction to revise its own decisions. Nor had the Legislature, the Chief
Justice further observed, acting in terms of Article 118 (g) conferred such a
jurisdiction by law. His Lordship held "that
this Supreme Court has no
jurisdiction to act in revision in cases decided by itself." Justices
Sharvananda, Wimalaratne,
Colin Thome, and Wanasundera agreed with the Chief
Justice. Ranasinghe, J. and Rodrigo, J. dissented. However, the dissenting
Judges
granted the relief prayed for, not in the exercise of the Court's
ordinary, statutory jurisdiction but in the exercise of the Court's
extraordinary, inherent jurisdiction.
In general, a decision of the Court is final: it is not subject to an appeal,
revision, review, reargument, or reconsideration:
Hettiarachchi v.
Seneviratne and Others,(4) Suren Wickramasinghe and Others v.
Cornel Perera and Others, (5) Cf. Mapalathan v. Elayavan,(18)
(17) cf. Elo Singho v. Josep.(19)
The Supreme Court is a creature of statute and its powers are statutory. The
Court has no statutory jurisdiction conferred by the
Constitution or by any
other law to re-hear, review, alter or vary its decision. The decisions of the
Supreme Court are final.
(E. g. see Senerath v. Chandraratne, Commissioner of
Excise and Others, (5) All Ceylon Commercial & Industrial
Workers Union v. The Ceylon Petroleum Corporation and Others,(1).
In Ganeshanatham, (supra), Samarakoon, CJ. (at p. 328) drew attention to the
fact that the use of the phrase "shall finally
dispose of" in Article 126 (5),
in dealing with the exercise of the court's powers in relation to fundamental
rights and language
rights petitions, and the phrase "final and conclusive" in
Article 127 in dealing with the Court's appellate jurisdiction,
signified that
once a matter was decided by the Supreme Court, the thing is over. There is
nothing more that can be done. As far
as the matters which are the subject of
the decision are concerned, it is all over. There is an end to such litigation -
as needs
must be with all litigation. Public policy requires that there must be
an end to litigation, for the sake of certainty and the maintenance
of law and
order, in the pacific settlement of disputes between the citizen and the State
or between other persons; for the sake
of preventing the vexation of persons by
those who can afford to indulge in
90
litigation; and for the
conservation of the resources of the State. Interest rei publicae ut sit
finis litium.
Some people may regard a particular case as being unusual or extraordinary or of
special significance for one reason or another.
However, when the decision is
that of the "final" Court, as is every decision of the Supreme Court, due
consideration
should be given to that fact. The Earl of Halsbury, LC, (Lords
MacNaughten, Morris and James of Hereford concurring) in The London Street
Tramways Company Limited v. The London County Council,(20)
observed as follows with regard to decisions of the final Court in the U.K.:
My Lords, it is totally impossible, as it appears to me, to disregard the whole
current of authority upon this subject, and to suppose
that what some people
call an "extraordinary case" an "unusual case", a case somewhat different from
the common,
in the opinion of each litigant in turn, is sufficient to justify
the rehearing and rearguing before the final Court of Appeal of
a question which
has been already decided. Of course I do not deny that cases of individual
hardship may arise, and there may be
a current of opinion that such and such a
judgment was erroneous; but what is that occasional interference with what is
perhaps
abstract justice as compared with the inconvenience - the disastrous
inconvenience - of having each question subject to being reargued
and the
dealings of mankind rendered doubtful by reason of different decisions, so that
in truth and in fact there would be no
real final Court of Apeal? My Lords,
"interest rei publicae "that there should be "finis litium" at some time,
and there could be no "finis litium" if it were possible to suggest in
each case that it might be reargued because it is "not an ordinary case,"
whatever
that may mean. Under these circumstances I am of opinion that we ought
not to allow this question to be reargued.
WHAT WAS THE HON. ACTING CHIEF JUSTICE ATTEMPTING TO ACHIEVE?
The Hon. Acting Chief Justice, in his Lordship' directions of the 22nd of
December, 1995 explained that he referred the matter to
a Bench of five Judges
because there was "a strong division of opinion", and because the "minority
judgment sharply
disapproves of the use to which
91
extracts from Hansard have been
put by the said majority. . ." The Hon. Acting Chief Justice states that the
question on which
the Judges were divided was a matter of "general and public
importance". What, may I respectfully inquire, might his Lordship's
position
have been had there been unanimity in regard to either of the views taken? Would
he have then deemed it appropriate to
refer the matter to a "fuller Bench"
because it was still a matter of general and public importance?
Mr. Marapana conceded that the matter of parliamentary privilege was important,
but inquired, "So, what?". The public
or general importance of a matter does
not give the Chief Justice the authority to constitute an appellate division of
the Supreme
Court to review and revise its own decisions. Indeed, if "general or
public importance" is a compelling reason for referring
a matter to a Bench of
five or more Judges, then in every case that the Supreme Court grants leave
under the Proviso to Article
128 (2) (which requires that the Supreme Court
shall grant leave to appeal in every matter or proceeding in which it is
satisfied
that the question to be decided is of public or general importance),
the Chief Justice on the application of a party would be obliged
to refer the
matter to a Bench of five or more Judges, unless he is prepared to say that,
although the Court had held it to be
otherwise, the question was not one of
general and public importance. Ought the Chief Justice to come to such a
conclusion after
the Supreme Court has decided otherwise? From where is such a
power derived by the Chief Justice? Each Bench of the Supreme Court
constituted
according to law, is the Supreme Court and its decision on a matter is final.
The Chief Justice is the head of the
Judiciary and as such he has certain unique
powers and privileges; but he has no superior powers vis-ŕ-vis the other Judges
of
the Court in the matter of adjudication. He is not empowered to overrule or
even to suspend the decisions of the Court. Nor can
he confer jurisdictions on
Benches nominated by him which the law has not given the Court. Article 132 (3)
does not confer an appellate
or consultative jurisdiction on a Bench constituted
by the Chief Justice.
What is it that the Acting Chief Justice referred to a Bench of five Judges
purporting to act under the provisions of Article 132(3)
? It is not an
"appeal", for it is not sought to obtain the assistance of the Court to correct
any error in fact or in
law which has been committed by the Court of Appeal or
any Court of First Instance, tribunal or other institution.
92
(Article 127). As we have seen, the Supreme Court is the highest and final Superior Court of record (Article 118) and, therefore there can be no appeals from its decisions. Indeed, the 1st Respondent-Petitioner does not in his petition state that the decision of the court was incorrect. His position, on a plain reading of the petition, is that "the question of the use of Hansard to assess the veraciy of the affidavit of the 1st Respondent is a matter of public or general importance and having regard to the expression of the dissent by (one of the Bench of three judges), the issue merits further consideration and/or review and/or revision by a fuller Bench of Your Lordships Court." In his prayer, the 1st Respondent-petitioner does not clearly and directly request the Court to set aside its order, but prays instead in an ambiguous manner that the Court be pleased "to revise and/or review and/or further consider the aforesaid issue of the use of Hansard, by referring the same for consideration by a fuller Bench". "Revision", "review" and "further consideration" are quite distinct functions. Of course, the usual general prayer was added: "to grant such other and further relief as to Your Lordship"s Court shall seem meet."
The Acting Chief Justice in his directions of the 22nd of December 1995 nominated a Bench of five Judges,
to hear, consider and determine the question whether speeches, debates and proceedings in Parliament as reflected in Hansard can be used as being legally relevant evidence to compare and contrast and confirm or reject or discredit as inconsistent or unreliable, affidavits of members of Parliament or of other persons filed in Court proceedings or before other Tribunals referring to events or matters outside Parliament, or that they cannot be so used for other purposes, for to do so could strike at or inhibit the freedom of speech, debate and proceedings in Parliament thereby constituting a breach of the privileges of Parliament as recognized by law; and to make consequential orders thereto....
What, I might respectfully inquire, were the "consequential orders" that were contemplated upon a determination of the Court with regard to the complex matters on which the Acting Chief Justice sought the opinion of the Bench of Judges His Lordship has constituted? How does all this relate to what the 1st Respondent-petitioner actually said in his
93
petition? Was his Lordship
primarily seeking an opinion of a "fuller Bench" on the questions formulated by
him?
Most certainly, if it is empowered to do so, the Supreme Court may provide its
opinion, as distinguished from a judgement, on any matter upon
which it is empowered by the law to render. The Constitution provides for those
matters. E.g. see Articles
120,121,122,123, 125 and 129.
Article 129 (1) of the Constitution provides as follows:
If at any time it appears to the President of the Repubic that a question of law
or fact has arisen or is likely to arise which
is of such a nature and of such
public importance that it is expedient to obtain the opinion of the Supreme
Court upon it, he may
refer that question to that Court for consideration and
the Court may, after such hearing as it thinks fit, within the period specified
in such reference or within such time as may be extended by the President,
report to the President its opinion thereon.
The Chief Justice is not empowered by the Constitution to call upon the Supreme
Court to express its opinion on a matter of public
importance; nor has the Court
the jurisdiction to entertain such a request.
Apart from the exceptional instances in which it has been statutorily vested
with jurisdiction to express opinions, the business
of the Court is
adjudication. A "question" or "issue" of general or public importance in the
abstract cannot
be the subject of a judgment of this Court. A petition for the
consideration of a matter merely on the ground of its importance
in general
should be rejected by this Court, for it is not a matter susceptible to
adjudication. A judgment "is a judicial
determination of a cause agitated
between real parties; upon which a real interest has been settled." Otherwise,
"there
is no judge; but a person invested with the ensigns of a judicial office
is misemployed in listening to a fictitious cause proposed
to him; there is no
party litigating, there is no party defendant, no real interest brought into
question." (per Solicitor-General
Wedderburn during the argument in the
Duchess of Kingston's Case,(21) and adopted by Lord Brougham in
Bandon v. Becher.(22)
94
There could be no "finis
litium" if it were possible to suggest in each case in which leave to appeal
has been granted under Article 128(2) or in a case referred
by the Chief Justice
under Article 132 (3) to a Bench of five or more Judges, that it might be
reargued because it was concerned
with a matter of public or general importance:
The unsuccessful party each time would have a right to have his matter
considered
by a another Bench of five or more Judges. Notwithstanding the
declaration in the Constitution that the Supreme Court is the final
court of
appeal, in effect we would have no final Court of Appeal if the decision of one
division of the Court was subject to review
or revision or rehearing or further
consideration in any manner whatsoever by another division of the Court. At the
heart of the
matter before us seems to be a misunderstanding of what is a
decision of the Supreme Court.
WHAT IS A DECISION OF THE SUPREME COURT?
There can be no appeal to a higher court or institution from a decision of the
Supreme Court, for Article 118 of the Constitution
declares the Supreme Court to
be the highest and final Superior Court of Record. The Supreme Court consists of
the Chief Justice
and of not less than six and not more than ten other Judges.
(Article 119). The jurisdiction of the Supreme Court may be exercised
in
different matters at the same time by the several judges of that Court sitting
apart, provided that its jurisdiction shall,
subject to the provisions of the
Constitution, be ordinarily exercised at all times by not less than three Judges
of the Court
sitting together as the Supreme Court. (Article 132 (2)). In the
matter of considering whether leave to proceed should be granted
when a person
alleges that his fundamental rights or language rights have been violated, the
jurisdiction of the Court may be exercised
by a Bench of not less than two
judges. (Article 126 (2)). In the exercise of its consultative jurisdiction, the
opinion, determination
and response of the Court shall be expressed after
consideration by at least five Judges of the Supreme Court, of whom, unless he
otherwise directs, the Chief Justice shall be one. (Article 129 (1)) The hearing
and determination of a proceeding relating to
the election of the President of
the Republic shall be by at least five Judges of the Supreme Court of whom,
unless he otherwise
directs, the Chief Justice shall be one. (Article 130).
When any division of the Court constituted in terms of the Constitution sits
together, it does so "as the Supreme Court".
(Article 132 (2)).
95
It is one Court though it usually
sits in several divisions. Each division has co-ordinate jurisdiction. What is
conveniently, but
inaccurately called a "fuller Bench" has no greater powers or
jurisdiction than any division of the Court. If a Bench
of all the Judges is a
Bench of the Full Court - there is no such description as the "fullest Court" -
what does a "fuller
Bench" mean? The judgment of the Supreme Court shall, when
it is not an unanimous decision, be the decision of the majority
(Article 132
(4)), regardless of the fact that it may, in the opinion of any person
whomsoever, be wrong. Nor is it open to anyone
to devalue a decision of the
Court on the assumption that one or more judges "merely agree" with the opinion
of another
Judge. It would, for more reasons than one, be inconvenient to a
regrettable extent if a Judge, who after due consideration of a
draft submitted
to him feels that he cannot usefully add anything to a judgment of a brother
Judge, may not merely say that he
agrees with his brother, without running the
risk of being taunted directly or by innuendo with mindless, mechanical
behaviour.
The Constitution does not provide for an appeal from a decision of one division
of the Supreme Court to another division of the
Court. Numbers are of no
consequence, except that a decision of a Bench of five or more Judges carries
greater weight. What can
be done by a Bench of five or more Judges can equally
well be done by a duly constituted Bench of a smaller number of Judges. The
Court acts as the Supreme Court. And the corollary of that is that what cannot
be done by the smallest number of Judges acting
as the Supreme Court in terms of
the law, cannot be done by a Bench of five or more Judges. (Cf. per Lord Greene,
MR in Young v. Bristol Aeroplane Co., (supra) at p. 298).
In Hettiarachchi, (supra), at p. 296, where the Court had refused
leave to proceed in the matter of an application for the alleged infringement of
the petitioner's
fundamental rights, the petitioner applied to the Court for a
"fuller Bench" to determine the matter of his appeal for
a revision of the
decision of the Court. The Court observed as follows:
The petitioner's motion of 30.5.94 was filed under a misapprehension that other
Judges of the Court or more Judges, or even all
the Judges could constitute an
appellate tribunal in respect of that decision of the Supreme Court which
refused him leave to proceed
under Article 126 (2). While other Judges of the
Supreme Court
96
might regard that decision as erroneous, and refuse to follow it when deciding
other matters, it was final as far as that case was
concerned.
One division of the court may, as stated in Hettiarachchi, (supra) refuse to
follow a decision of another division; however, it
would be only in the most
exceptional circumstances that the court would depart from one of its own
precedents. An eminent scholar-judge,
the late Justice Silberg of Israel, had
once commented that if a court departed from its own precedents frequently, it
would no
longer be a "court of justice", but that it would be a "court of
judges". Justice Silberg's observations were
quoted with approval in Husaam Haj
Yihyeh v. The State of Israel,(23) In that case, the issue was whether a Bench
of three judges of the Supreme Court of Israel could dissent from a decision of
a Bench of five Judges. It was held that while it was possible, it was
undesirable, unless the precedent was incorrect. If it was
clearly incorrect, it
should not be followed. As Chief Justice Smoira had said: "Between truth and
stability; truth must prevail".
On the other hand, if both points of view were
possible, then as Justice Barak had said, "Between truth and truth, stability
must prevail".
In Suren Wickramasinghe, (supra), an application to review an order granting
special leave to appeal had been made and a "fuller Bench" had been requested.
The Court said:
Apart from instances where the law expressly provides otherwise, a bench of more
than three Judges can only be constituted under
Article 132 (3) of the
Constitution, and the power to do so is vested in the Chief Justice alone.
Article 132 shows, ex facie,
that that power can only be exercised in respect of
a pending appeal, proceeding or matter - but not in respect of a concluded
matter. SC (SLA) Application No. 49/96 is a concluded matter. Further, in terms
of Article 132 (2) a judgment or order delivered
by a bench of three Judges is
the judgment or order of the Supreme Court, and not of "some fragmented part of
the Court";
it is final (cf. Article 127 (1)), and is not subject to appeal to
another bench of the Court, even if it were to consist of five,
or seven, or
nine, or even all the Judges: Hettiarachchi v. Seneviratne (No. 2), (supra),
where it was also pointed out that,
97
It is quite wrong to assume . . . that the
power of the Chief Justice under Article 132 (3) to direct that an appeal,
proceeding
or matter be heard by a bench of five or more Judges . . . makes any
difference. That provision confers no right of appeal, revision
or review.
ARTICLE 132 (3) OF THE CONSTITUTION
The learnd Solicitor-General, agreeing with the submissions of Mr. Marapana,
stated that Article 132 (3) did not confer any right
of appeal, revision or
review. That was also the view of this Court in Hettiarachchi, (supra), and in
Suren Wickramasinghe, (supra). I find myself in agreement with that view.
Article 132 (3) provides as follows:
The Chief Justice may-
(i) of his own motion; or
(ii) at the request of two or more Judges hearing any matter; or
(iii) on the application of a party to any appeal, proceeding or matter if the question involved is in the opinion of the Chief Justice one of general and public importance,
direct that such appeal, proceeding or matter be heard by a Bench comprising five or more Judges of the Supreme Court.
Perhaps Article 132 (3) in certain respects may be capable of more than one
interpretation. It has, as far as I know, been always
taken for granted that a
matter is referred to a Bench of five or more Judges by the Chief Justice,
whether of his own motion,
or at the request of two or more Judges, or on the
application of a party, because the question is one of general and public
importance.
The Article it seems to me has been taken to mean as follows:
If in the opinion of the Chief Justice the question involved in any appeal,
proceeding or matter is one of general or public importance,
he may
98
(i) of his own motion; or
(ii) at the request of two or more Judges hearing any matter; or
(iii) on the application of any party in such appeal, proceeding or matter,
direct that such appeal, proceeding or matter be heard by a Bench composed of
five or more Judges of the Supreme Court.
Be that as it may, there has been no doubt that Article 132 provides for the
manner in which the jurisdiction of the Court may be
ordinarily exercised.
Article 132 does not confer any jurisdiction on the Court. Nor does Article 132
(3) empower the Chief Justice
to refer any matter of public or general
importance to a Bench of five or more Judges. It empowers him to constitute a
Bench of
five or more Judges to hear an appeal, proceeding or matter which the
Court has jurisdiction to entertain and decide or determine.
The court has no
statutory jurisdiction to rehear, reconsider, revise, review, vary or set aside
its own orders. Consequently,
the Chief Justice cannot refer a matter to a Bench
of five or more Judges for the purpose of revising, reviewing, varying or
setting
aside a decision of the Court. The fact that in the opinion of the Chief
Justice the question involved is a matter of general or
public importance makes
no difference. In Hettiarachchi v. Seneviratne,(4) followed in
Suren
Wickramasinghe and Others v. Cornel Lionel Perera and Others,(6) it was pointed
out that,
It is quite wrong to assume . . . that the power of the Chief Justice under
Article 132 (3) to direct that an appeal, proceeding
or matter be heard by a
bench of five or more Judges . . . makes any difference. That provision confers
no right of appeal, revision
or review.
To use Article 132 in that way would be to usurp legislative power, in order to
create an additional right of appeal which the Constitution
did not confer;
and, indeed, in effect to create a right of appeal with leave from the Chief
Justice sitting alone.
There have been, as far as I have been able to ascertain, at least 58 appeals,
proceedings or matters heard by Benches of five or
more
99
Judges since 1978. It
came as no surprise to find that there is no instance of a concluded matter ever
having been referred to such
a Bench under Article 132 (3) for revision, review
or further consideration. In Suren Wickramasinghe and Others v. Cornel Lionel
Perera and Others, (supra), Fernando, J. (Dheeraratne and Wijetunga, JJ.
agreeing) said as follows:
Apart from instances where the law expressly provides otherwise, a bench of
more than three judges can only be constituted under
Article 132 (3) of the
Constitution, and the power to do so is vested in the Chief Justice alone.
Article 132 shows, ex facie,
that power can only be exercised in respect of a
pending appeal, proceeding or matter - but not in respect of a concluded matter.
The Court had more than enough justification for arriving at that decision.
Ganeshanatham (supra) is not, as it is sometimes supposed, an illustration of a
reference of a concluded matter for review or revision or reconsideration
of its
decision by way of an appeal or otherwise. The petitioner in that case was not a
party in S.C. Application 20/83 Vivienne Goonewarden v. Hector Perera and Others
(supra). Indeed, his complaint was that he had been found guilty of violating
Mrs. Goonewardene's fundamental rights without being
made a party to the
proceedings and without being heard. It was not a case of the same question as
had been already judicially
decided by a Bench of three Judges once again being
raised between the same parties before a Bench of seven Judges.
When an application was made by the petitioner in Ganeshanatham, (supra), the
matter was listed in the usual way before a Bench
composed of the same three
Judges who had heard Vivienne Goonewardene's case because there was reference in
the petition to a matter
that had arisen in the hearing and determination of
Ganeshanatham. The caption in Ganeshanatham was as follows: "In the matter
of an
application in revision and for the exercise of the inherent powers and
jurisdiction of the Supreme Court." The three
Judges, as we have seen, acting
under Article 132 (3) of the Constitution requested the Chief Justice to
determine two questions:
"(1) Has the Supreme Court jurisdiction to review or
revise in any manner its own
100
judgment in S.C. Application No. 20/83 (Vivienne
Goonewardene's case)? (2) If so (a) on what grounds or under what circumstances
can such jurisdiction be exercised?; (b) what procedure should be followed
to
obtain relief?" Accordingly, the Chief Justice, acting under the powers vested
in him by Article 132 (3), constituted a
Bench of seven Judges.
The Court decided that it had no jurisdiction conferred by the Constitution or
any other law to review or revise its own judgment
in any matter. However, it
was held that the Court had inherent powers to revise its decisions in certain
circumstances, but that
the petitioner's matter was not one in which those
powers should be exercised.
In the matter before us, the 1st Respondent-petitioner prays that the Court be
pleased to (a) "revise and/or review and/or
further consider the aforesaid issue
of Hansard, by referring the same for consideration by a fuller Bench, and (b)
to grant such
other and further relief as to Your Lordships Court shall seem
meet." The 1st Respondent-petitioner in paragraph 16 of his
petition, stated
that "the question of the use of Hansard to assess the veracity of the affidavit
of the 1st Respondent is
a matter of public or general importance and having
regard to the expression of dissent by (one of the Judges), the issue merits
further consideration and/or review and/or revision by a fuller Bench of Your
Lordship's Court.".
In the matter before us, the 1st Respondent-petitioner, unlike the petitioner in
Ganeshanatham, was a party in a proceeding that had been finally decided by the
Court. For the reasons I have explained, the Court has no statutory
jurisdiction
to revise, review or further consider all or any of the matters that have been
adjudicated upon. The fact that a matter
was decided by a majority does not
assist him, for the decision of the majority, whether it be right or wrong, is
the decision
of the Supreme Court in terms of Article 132 (4) of the
Constitution. The importance of a matter does not, as we have seen, make
any
difference. Article 132 does not confer any jurisdiction on the Court. It merely
provides for the manner in which the jurisdictions
of the Court, conferred by
the Constitution or by law, may be exercised. Article 132 (3) does not empower
he Chief Justice to refer
any appeal, proceeding or matter whatsoever to a Bench
of five or more Judges: It empowers him to constitute a Bench to hear an appeal,
proceeding or matter in which the Court
has jurisdiction.
101
THE INHERENT JURISDICTION OF THE SUPREME COURT
Although as a general rule, no court or judge has power to rehear, review, alter
or vary any judgment or order after it has been
entered, either in an
application made in the original action or matter or in afresh action brought to
review the judgement or
order, yet the rule is subject to certain exceptions.
All Courts have inherent jurisdiction to vary their orders in certain
circumstances. (E.g. see Hettiarachchi, (supra) at 297; Wijeyesinghe et al. v.
Uluwita(24) Easwaralingam v. Sivagnanasunderam,(25))
Mr. Marapana submitted that, as far as the Supreme Court - the final Court -was
concerned, the exceptions were limited to those
mentioned in Ganeshanatham,
(supra), at page 377 by Rodrigo, J. I am reluctant to limit the exceptions by
any list that purports to be exhaustive, and that
is the preferable course in
the consideration of matters of this kind. I see the difficulty of defining
where you are to stop.
In the words of Evershed, MR in Meier v. Meier(26) "I
prefer not to attempt a definition of the extent of the court's inherent
jurisdiction to vary, modify or extend its
orders if, in its view, the purposes
of justice require that it should do so." The view of the Master of the Rolls
was followed
by Morris, LJ in Thynne (Marchioness of Bath) v. Thynne (Marquess
of Bath), (supra) at pp.145,146). I shall, as Morris, LJ did, without purporting
to categorise, mention some illustrations of the scope of
the Court's powers.
However, let me first say this: When a person invokes to exercise its inherent
powers, the Court must ask itself two questions,
as Garvin, SPJ did in Mohamed
v. Annamalai Chettiar,(27):
(a) Is it a case which comes within the scope of the inherent powers of this Court; and
(b) Is it one in which those powers should be exercised?
There is no doubt that a clerical mistake in a judgment or order or some error arising in a judgment or order from an accidental slip or omission may be corrected under the Court's inherent jurisdiction. (See Halsbury, Vol. 26 Paragraphs 556 and 557; cf. Marambe Kumarihamy v. Perera, (supra).
102
For instance, in Padma Fernando v. T. S. Fernano,(28)
in the matter of an
application for a writ of habeas corpus, H.N.G. Fernando, J. delivered his
judgment on the 24th of October,
1956 holding that a father's right to the
custody of his child during the subsistence of his marriage may be overridden on
the
ground that if the child is permitted to continue in the custody of the
father there would be detriment to the life, health or morals
of the child. In
the circumstances of the case, his Lordship directed the father to deliver
custody of the child to the mother.
On October 29th 1956, H.N.G. Fernando, J.
said (at p. 264): "My attention has been drawn to provide in the above order
that
the Respondent (the father) may have access to the child. I direct that the
Respondent should have the right to visit the child
................"
A court has the power to vary its orders in such a way as to carry out its own
meaning and, where the language used is doubtful,
to make it plain. (See per
Lord Penzance in Lawrie v. Lees,(29). In Re Swire(30)
Lindley, LJ. said that ".
. . if an order . . . does not express the real order of the Court, it would, as
it appears
to me, be shocking to say that the party aggrieved cannot come here
to have the record set right . . . It appears to me, therefore
that, if it is
once made out that the order . . . does not express the order actually made, the
Court has ample jurisdiction to
set that aright, whether it arises from a
clerical slip or not."
In Paul E. de Costa & Sons v. S. Gunaratne,(31) the decree of the District Court
was that the petitioners who carried on business under the name of "Paul E. de
Costa
& Sons" should pay a sum of Rs. 60,000 from their personal and private
assets. However, according to the judgment, the
sum was payable out of the firm"s money and not out of the personal property of the partners. The decree
had been affirmed
in appeal by the Supreme Court. Upon application for revision,
Manicavasagar, J. (Samerawickrame, J. agreeing) said at p. 215 as
follows:
. . . the Court has the inherent power, if the judgment does not correctly state
what it actually decided and intended, to vary
its judgment so as to carry out
its manifest intention. The law on this point was stated by Lord Watson in the
case of Hatton v. Harris (32) and it supports the proposition I have just
stated:
When an error of that kind has been committed, it is always within the
competency of the Court, if nothing has intervened
103
which would render it
inexpedient or inequitable to do so, to correct the record in order to bring it
into harmony with the order
which the Judge obviously meant to pronounce.
The Supreme Court held that the decree should be amended by the addition of the
stipulation that "the said sum of Rs. 60,000
and interest shall not be
recoverable from the personal and private assets of the petitioners save and
except to the extent of
their interests in the said firm of Paul E. de Costa and
Sons."
In Raju v. Jacob,(33) the petitioner, who had been sentenced to a term of one
year's rigorous imprisonment, did not appeal against the order of the
Magistrate
but made an application in revision. The Supreme Court ordered that hard labour
be stayed from the 19th of July 1967
till the disposal of the application. When
the application was subsequently dismissed on the 14th of September 1967, the
Court
made no order regarding the resumption of hard labour as the fact that
hard labour had been stayed was not brought to its notice.
Further, on account
of the delay, through oversight, in the communication to the authorities of the
order dismissing the application
in revision, hard labour was not resumed until
the 30th of October 1967. It was contended on behalf of the petitioner that the
entire period during which he was kept in remand without hard labour should be
deducted from the term of one year's rigorous imprisonment
imposed on him. There
was no authority or provision of law in regard to a similar matter in so far as
applications for revision
were concerned although there was statutory provision
with regard to appeals. The Criminal Procedure Code provided that in the case
of
an appellant who was in custody pending an appeal, the Supreme Court had the
power to order that the time so spent or any part
thereof shall be reckoned as
part of the term of his sentence. Weeramantry, J. in granting the petitioner the
benefit of the period
spent in remand said as follows:
I see little distinction in principle between an appeal in which hard labour is
stayed and a revision application in which this
court has made express order to
the same effect. Moreover the revision application in this case has been filed
in respect of an
appealable order and I do not think it would be correct to deny
relief to the applicant on the mere technicality that what came
before this
court
104
was a revision application and not an appeal. If in the exercise of its
jurisdiction this court may give byway of revision
the same relief it may grant
by way of appeal I see no justification for denying to an applicant in revision,
whose application
has been entertained by this court, an elementary right which
is conferred on every appellant. The silence of the Criminal Procedure
Code on
this matter cannot take away from the inherent powers of this court to grant
relief of the nature contemplated by section
341 (5) to an applicant in
revision. The grant of such relief is of course a matter entirely in the
discretion of the court and
will always be dependent on the circumstances of
each case. In the circumstances of this case I cannot lose sight of the fact
that
notice has issued upon the revision application and that a stay of hard
labour has been expressly ordered by this court. It is also
most unusual for
revision applications to be filed by accused in jail and I understand this to be
the only application so filed
over a long period of time.
In Kariapperuma and Another v. D. J. Kotelawala,(34) H. N. G. Fernando, CJ.
(Thamotheram, J. agreeing), allowed an appeal and dismissed the plaintiff's
action. The Chief Justice
in his judgment considered the judgment of Keuneman,
J. in Valliammai Atchi v. O. L. M. Abdul Majeed(35) and the decision of the
Privy Council in that case reported in 48 NLR 289. In a "Post-Script" to the
judgment, the
Chief Justice explained as follows:
I much regret that owing to an error in my note of the arguments in this appeal,
my judgment attributed to Counsel for the Respondent
a submission different
from that which he actually made. His submission that a trust arose in this case
did not depend on the judgment
of Keuneman, J. in Valliammai Atchi's(35)
case,
although it happens somewhat curiously that that judgment was of assistance in
considering the question to be decided
in the present case. But Counsel had
depended instead on a judgment of the same learned Judge reported in the same
volume of the
Report -Jonga v. Nanduwa.(36)
The Chief Justice then examines the matter in the light of the decision in Jonga
v. Nanduwa (supra), and after finding that the facts of that case were "in no
way comparable", confirms the view expressed by him earlier.
105
Halsbury, Vol. 26 paragraph 556 states that,
The court has inherent jurisdiction to vary or clarify an order so as to carry
out the court's meaning or make the language plain,
or to amend it where a party
has been wrongly named or described unless this would change the substance of
the judgment. The court
will treat as a nullity and set aside, of its own motion
if necessary, a judgment entered against a person who was in fact dead
or a
non-existent company or, in certain circumstances, a judgment in default or a
consent judgment. Where there has been some
procedural irregularity in the
proceedings leading up to the judgment or order which is so serious that the
judgment or order ought
to be treated as a nullity, the Court will set it aside.
In Menchinahamy v. Muniweera,(37) about six weeks after an appeal to the Supreme
Court from an interlocutory decree in the District Court was dismissed by the
Supreme Court, an application was made to the Supreme Court "for revision or in
the alternative for restitutio-in-integrum
by the heirs of a party-defendant who
had died before the interlocutory decree was entered but whose heirs had not
been substituted
in his place before the interlocutory decree was so entered.
There was no other remedy open to the petitioner except to move the
Supreme
Court for relief. Dias, SPJ (Gunasekera, J. agreeing) said at pp. 414-415 as
follows:
We now come to the substantial point which has been urged in this case, namely,
that not only are there no merits in the present
application of the petitioner,
but also that if we grant her the relief she seeks we will in effect be sitting
in judgment on a
two-Judge decision of this Court in the earlier appeal and
which is now embodied in a decree of the Supreme Court which has passed
the Seal
of the court. It was argued that the Supreme Court by means of restitutio in
integrum cannot vary its own decrees, especially
after they have passed the Seal
of the Supreme Court. It was pointed out that the powers of this Court are not
unlimited. It is
urged that section 36 of the Courts Ordinance (Chapter VI)
defines the jurisdiction of the court, while section 37 only permits
this Court
to interfere with the judgments of an original Court and it cannot interfere
with the orders of the Supreme Court. It
is pointed
106
out that section 776 of the
Civil Procedure Code deals with the sealing of decrees of the Supreme Court, and
that once a decree
has been sealed, such decree, if it is a judgment of two
Judges of this Court, cannot be varied by another bench of two Judges.
The question, however, is whether such arguments can prevail in a case of this
kind. Let me take one example. P files a partition
action against A. B and C. A
and B appear and file answer. C does not. There is a contest and a trial. The
District judge enters
an interlocutory decree. There is an appeal to the Supreme
Court which affirms the judgment and decree of the District Court. The
Supreme
Court judgment is sealed. Thereafter, before final decree is entered, C comes
forward and satisfies the Court by proof
that there was, in fact, no service of
summons on him. It is everyday practice in a case like that for the Court to
hold that all
the earlier proceedings are abortive and of no effect. If
authority is needed this is supplied by the following cases:- Caldera v.
Santiagopillai,(38) Juan Perera v. Stephen Fernando,(39)
and Thambiraja v.
Sinnamma.(40) The last case on this point is that of Publis v. Eugena Hamy(41)
which laid down that where a summons in a partition action is not properly
served on a party, such party is not bound by the
final decree in the case and
it can be vacated even when the irregularity has been discovered after final
decree was entered. It
is to be noted that in the present case final decree has
not yet been entered.
The situation which emerges in the present case is that Saineris was a party. He
died before the trial without steps having been
taken to substitute his heirs
who were, therefore, not bound by the subsequent proceedings. In giving relief
to the petitioner
we are not sitting in judgment either on the interlocutory
decree or on the decree in appeal passed by this Court. We are merely
declaring
that, so far as the petitioner is concerned, there has been a violation of the
principles of natural justice which makes
it incumbent on this Court, despite
technical objections to the contrary, to do justice. In my opinion, therefore,
the order of
this Court should be that the petitioner and the other heirs of
Saineris should be forthwith added as parties to this action, and
that after she
has filed her statement of claim, the District Judge should proceed to
107
adjudicate on the merits of her application. It will also be the duty of the
plaintiff to see that all the necessary parties are
before the Court before any
further application is made. I would go further and say that in view of the
irregularity in not joining
Saineris' heirs, in my opinion both the
interlocutory decree in this action and the subsequent judgment of this Court in
appeal
are of no effect, because by reason of the non-observance of the steps in
procedure no proper interlocutory decree was, in fact,
entered in this case
....
W. Sirivasa Thero v. Sudassi Thero,(42) was not a case in which the Supreme
Court varied its own order; but it is instructive. In that case, the plaintiff
sued three
other priests for a declaration that he was entitled to the office of
Viharadhipathi, incumbent and trustee of a Vihara and Pansala
and to the
management and control of their temporalities. He did not ask for possession of
any property. He obtained judgment and
decree as prayed for and, upon his
application to execute the decree, a writ of possession was issued in respect of
a room in the
Pansala. The petitioner who was in occupation of the room was
ejected. The petitioner filed action in the District Court in respect
of his
eviction, but the District Judge held that he was not in law entitled to
possession because the defendant as Viharadhipathi
was entitled to control the
occupation of the Pansala. In appeal, it was held that the Court had no
jurisdiction to issue the writ
of possession and the Court ordered that the
petitioner be restored to possession. Sansoni, J. (H.N.G. Fernando, J. agreeing)
said
as follows at pages 33-34:
Since the decree was one in respect of which, under the Code, the
judgment-creditor could not ask for, and the Court had no power
to issue a writ
of possession, it seems to me that the Court was acting without jurisdiction in
issuing such a writ. The foundation
of a writ of possession is a decree for
possession, and a writ of possession which is not founded on such a decree is a
nullity,
because in issuing it the Court acts in excess of its jurisdiction.
Where a Court makes an order without jurisdiction, as in this
case, it has
inherent power to set it aside; and the person affected by the order is entitled
ex debito justitiae to have it set
aside. It is not necessary to appeal from
such an order, which is a nullity . . .
108
The question now arises as to what order we should make on this appeal. The
plaintiff asked the Court to restore him to possession
of the room, because he
had been dispossessed of it in execution of the decree. Section 328, no doubt,
contemplates dispossession
under decrees for possession of immovable property,
but this is not a matter which we can allow to stand in the way of the
plaintiff,
for we must have regard to the substance rather than the form.
Justice requires that he should be restored to the position he occupied
before
the invalid order was made, for it is a rule that the Court will not permit a
suitor to suffer by reason of its wrongful
act. The Court will, so far as
possible, put him in the position which he would have occupied if the wrong
order had not been made.
It is a power which is inherent in the Court itself,
and rests on the principle that a Court of Justice is under a duty to repair
the
injury done to a party by its act: see Rodger v. Comptoir D' Escompte de
Paris.(43)
I would, therefore, direct that the plaintiff be restored to possession of the
room . . .
In Katiramanthamby and Another v. Lebbethamby Hadjiar,(44) Lebbethamby Hadjiar
was the sole beneficiary named in the last will of a Tamil lady who died in
Batticaloa leaving valuable
property. He made an application for probate of the
Will. He named no respondents to his application and averred in an affidavit
that to the best of his knowledge and belief the deceased had left only himself
as her sole heir. The District Judge made order
nisi declaring the Will to be
proved and directed that a copy of the Order shall be published in the
Government Gazette and in
the Daily News. The order nisi was in fact published
not in the Daily News as ordered by the Court but in the Daily Mirror.
Thereafter
order absolute was entered but probate of the Will was not actually
issued by the Court. Then Katiramanthamby and his brother filed
an application
objecting to the grant of probate and seeking to intervene in the testamentary
proceedings. They claimed that they
were the sons of a sister of the deceased
and that they were her intestate heirs. After inquiry, the District Judge made
order
vacating the order absolute and allowing the intervention of the
petitioners and fixed the case for further inquiry. Lebbethamby
Hadjiar then
appealed against the order of the District Judge vacating his earlier order, and
the Supreme
109
Court set aside the order of the District Judge on the ground that the latter
had no jurisdiction to vacate the order absolute previously
made. Katiramantamby
and his brother then made an application in revision in which they prayed that
the Court set aside the order
absolute and allow them an opportunity to show
cause against the order absolute being entered. They claimed by affidavit that
the
Respondent was a Muslim and a complete stranger to the deceased, and that
the Respondent deliberately omitted in his original petition
to inform Court
that the petitioners were the lawful intestate heirs. It is significant that in
his application for probate, the
Respondent had made no averment in terms of
section 525 of the Civil Procedure Code that he "has no reason to suppose that
his application will be opposed by any person." According to the affidavits of
the petitioners, the deceased, the Respondent
and the petitioners were all
residents of Valaichenai. The principal ground on which the petitioners relied
in support of their
application was that section 532 of the Civil Procedure Code
imperatively required the District Judge to select a newspaper for
the
publication of the order nisi "with the object that notice of the order should
reach all persons interested in the administration
of the deceased's property."
In the opinion of the Supreme Court the publication of the order in the Daily
Mirror or in the Daily News, which were English Newspapers, "did not suffice to
reach persons in the position of the petitioners, whose interests section
532
was intended to protect." H. N. G. Fernando, C.J. (Weeramantry, J. agreeing)
stated as follows at p. 231:
I must therefore hold when the District Judge failed to select a newspaper which
would satisfy the object mentioned in section 532,
he failed to comply with a
mandatory provision of law, and thus the mandatory requirement of publication
was not satisfied.
The remaining question is whether our powers in revision to set aside the order
absolute cannot now be exercised, because in the
previous appeal the Supreme
Court restored the Order Absolute . . . In that appeal however, the Supreme
Court only held that the
District Judge should not have set aside his own order
and the judgment cites a passage from the case of Paulusz v. Perera, (45)
to the
effect that "the correction of all errors of fact and law of a District Court is
vested (by) the Courts Ordinance
in the Supreme Court". While no doubt the
present petitioners could at that stage
110
have invited this Court to exercise its powers of revision in their favour, the
petitioners took substantially the same course, when
within a few weeks after
the decision of that appeal, they made the present application in revision. We
must I think take into
account the fact that there appear to have been grave
deficiencies in the respondent's original application for probate, and also
the
fact that, prima facie, this was an unusual Will.
For these reasons the application of the present petitioners is allowed; the
order absolute for probate is set aside, and the petitioners
will be permitted
to intervene in the testamentary proceedings . . .
As pointed out in Hettiarachchi, (supra) at p. 299, the head note in the report
of Katiramanthamby, (supra) is misleading, for the Supreme Court did not set
aside its own order. What it was requested to do by the petitioners, and
what it
did in fact, was to set aside the first order of the District Judge which he
himself could not have set aside, thereby
enabling the nephews of the deceased
to intervene in the testamentary proceedings. The District Judge was wrong and
realized his
mistake, but he could do nothing about it, for, as Halsbury (Vol.
26 paragraph 557, p. 281) observes:
A judgment or order will not be varied . . . when it correctly represents what
the court decided and where the court itself was
wrong, nor can the operative
and substantive part of the judgment be varied and a different form substituted
. . .
Halsbury (Vol 26, paragraph 560, page 285) states that
A judgment which has been obtained by fraud either in the court or of one or
more of the parties may be impeached by means of an
action . . . In such an
action it is not sufficient merely to allege fraud without giving any
particulars, and the fraud must relate
to matters which prima facie would be a
reason for setting the judgment aside if they were established by proof, and not
to matters
which are merely collateral. The court requires a strong case to be
established before it will set aside a judgment on this ground,
and the action
will be stayed or dismissed as vexatious unless the fraud
111
alleged raises a
reasonable prospect of success and was discovered since the judgment . . .
An action will lie to rescind a judgment on the ground of the discovery of new
evidence which would have had a material effect upon
the decision of the Court.
It must be shown (1) that the evidence could not have been obtained with
reasonable diligence for use
at the trial and (2) that the further evidence is
such that if given it would have an important effect on the result of the trial
although it need not be decisive and (3) that the evidence is such as is
presumably to be believed. (Halsbury, Vol. 26 paragraph
561). In Loku Banda v.
Assen,(46) Withers, J. affirmed the decision of the Court of Requests. However,
he ordered the record to be brought up to decide whether
there should be a new
trial because an important piece of evidence in the form of a document was
reported to have been discovered
in the record room of the trial court after the
Supreme Court had decided the appeal. In the circumstances of the case, however,
Withers, J. declined to vary his order although he held that the Court had the
power to review a judgment of its own passed in
appeal where it appears that
fresh evidence has been discovered since such judgment was pronounced.
In Palitha v. O. I. C. Polonnaruwa and Others, (13) the Supreme Court had to
decide on the alleged infringement of the petitioner's fundamental rights
guaranteed by Article
13 of the Constitution. The application had been dismissed
on the 12th of February 1993 since the Court was informed by learned
State
Counsel that the petitioner was due to be released on the 30th of April 1993
after rehabilitation. However, due to a typographical
error, the order made by
the Court stated that the petitioner had been so released on the 30th of April
1992. The petitioner's
father requested the Commissioner-General of
Rehabilitation to release the petitioner on the basis of the Court's order. On
the
2nd of April, 1993 the Commissioner-General informed the Court that the
petitioner had not been sent for rehabilitation and that
he was still in custody
at the Pelawatta detention camp. State Counsel confirmed that the petitioner had
not been sent for rehabilitation
even after the Attorney-General had on the
19th of February, 1993 communicated the fact that the Court had been informed
that the
petitioner was due to be rehabilitated. The petitioner was released
from the Detention Camp on the 30th of April, 1993. The Court
restored the
matter and granted the petitioner
112
a declaration that his rights under paragraphs
(2) and (4) of Article 13 had been infringed and directed the State to pay a sum
of Rs. 17,500 as compensaton. Kulatunga, J. (Ramanathan and Wijetunga, JJ.
(agreeing) said at p. 162:
Considering the fact that the order of this Court dated 12.02.1993 was made on
wrong facts given to the prejudice of the petitioner,
we set aside the said
order by way of remedying the injustice caused to the petitioner
(notwithstanding the failure of his Counsel
to appear in Court though noticed,
which failure appears to be due to the short notice given to him) - vide
Wijesinghe v. Uluwita(24) and Ganeshanatham v Goonewardene
(supra) at p. 329.
Costs have been awarded to a successful party in the exercise of its inherent
powers Gratiaen, J. observing that he was resorting
to the inherent jurisdiction
of the Court "especially as it is in aid of justice" : Karuppannan v.
Commissioner for Registration of Indian and Pakistani Residents. (47)
Whether it is in the exercise of its extraordinary inherent jurisdiction or
otherwise in the performance of its ordinary statutory
duties, the Court is
obliged to keep the attainment of justice in view. Velupillai v. The Chairman
Urban District Council, Jaffna ,(48) was not a case relating to the inherent
powers of the court, but the observations of the Chief Justice in that case
provide
us with valuable guidance. In that case the plaintiff had a cause of
action against the Urban District Council of Jaffna. His proctor
was under the
erroneous impression that the Council could not be sued and therefore action was
filed naming the Chairman of the
Council as the defendant. When the parties came
to trial the preliminary issue was raised on behalf of the defendant that the
action
against the Chairman was not properly instituted. The District Judge
allowed that issue. The proctor for the plaintiff moved to
amend the caption.
The District Judge refused him permission to amend the caption. Abrahams, CJ.
(with whom Soertsz, J. agreed)
at p. 76 said:
I think that if we do not allow the amendment in this case we should be doing a
very grave injustice to the plaintiff. It would
appear as if the shortcomings of
his legal adviser, the peculiarities of law and procedure and the congestion in
the courts have
all combined to
113
deprive him of a cause of action and I for one
refuse to be a party to such an outrage upon justice. This is a Court of
Justice,
it is not an Academy of Law.
I would allow the amendment . . .
However, as we shall see, justice must be done according to law. Moreover, in
applying the law to the circumstances of a case, different
conclusions may be
reached by the Judges hearing the matter. Thus in Ganeshanatham, (supra),
although the seven Judges who heard
the matter were of the opinion that, as a
Superior Court of Record, the Supreme Court has inherent powers to make
corrections to
meet the ends of justice (see per Samarakoon, C.J. at p. 329 -
Sharvananda, Wimalaratne, Colin Thorne and Wanasundera, JJ. agreeing
-see p.
340; per Ranasinghe, J. at p. 355; and per Rodrigo, J. at p. 377), the Court
(5-2) did not think that the case was one
in which the inherent powers of the
Court should be exercised.
The court has consistently recognized the fact that it has inherent power to
correct decisions made per incuriam. (E.g. see The Police Officer of Mawalla v.
Galapatta,(49) P.C. Batticaloa, 8306, In Revision,(50)
The King v. Baron Silva
et al.,(51) Mohamed v. Annamalai Chettiar, (supra); Elo Singho v. Joseph,
(supra); Ranmenikhamy and Another v. Tissera and Others,(52) Ganeshanatham
(supra) (Seven Judges) at 329, 355, 377; Hettiarachchi, (supra); Senerath v.
Chandraratne, Commissioner of
Excise and others, (supra) at 212, 216;All Ceylon
Commercial & Industrial Workers Union v. Ceylon Petroleum Corporation and
Another, (supra) at 297.
Earl Jowitt in his Dictionary of English Law, (2nd Ed. 1977, Vol. 2 p. 1347)
translates the phrase to mean "through want of
care". He goes on to explain that
"A decision or dictum of a judge which clearly is the result of some oversight
is said
to have been given per incuriam." In Farrell v. Alexander,(53)
Lord
Justice Scarman in the Court of Appeal translated per incuriam as "Homer
nodded". Others, however, have given
the phrase a more restricted meaning. Lord
Chief Justice Goddard in Huddersfield Police Authority v. Watson,(54)
said:
What is meant by giving a decision per incuriam is giving a decision when a case
or statute has not been brought to the
114
attention of the court and they have
given the decision in ignorance or forgetfulness of the existence of that case
or that statute.
Lord Goddard's definition was adopted by Basnayake, J. in Alasuppillai v.
Yavetpillai,(55) and by Kulatunga, J. (G.P.S. de Silva, CJ. and Ramanathan, J.
agreeing) in All Ceylon Commercial and Industrial Workers Union, (supra) at 297.
In Hettiarachchi, (supra), at p. 299 the Court (Fernando, Amerasinghe and
Perera, JJ.) said that "A decision will be regarded as given per incuriam
if it
was in ignorance of some inconsistent statute or binding decision . . . "
In The King v. Baron Silva, (supra), the petitioners were the 3rd and 4th
accused in a case in which they were charged with agreeing with three others to
act together with the common purpose of committing the offence of extortion and
that they thereby committed the offence of conspiracy
punishable under sections
113 (b) and 373 of the Penal Code. They were convicted and the convictions were
upheld by the Supreme
Court. They applied to the Court to revise the judgment in
appeal on the ground that section 113 (b) of the Penal Code was not in
force on
the date of the alleged commission of the offence, namely the 23rd of March
1924. That section was introduced by the Penal
Code Amendment Ordinance No. 5 of
1924. It was passed on the 20th of March 1924, but did not receive the sanction
of the Governor
till the 6th of May 1924. There was no doubt that the offence of
conspiracy as defined in that amendment was not an offence on the
date the
petitioners were alleged to have committed the offence. Maartensz, J. said:
Two questions arise from the application, first, whether this Court has the
power to revise its own judgment, and second, whether
in the circumstances of
this case the verdict should be altered or the accused acquitted. The first
point is free from difficulty
for I think that if this Court per incuriam
affirms the conviction of a man for an offence which at the time of the alleged
committal
of it was not an offence under the law, the Court has inherent power
to revise its verdict. There is ample authority for this proposition
in the case
of the Police Officer of Mawilla v. Galapatha (supra) and in the anonymous case
reported in the 2nd Volume of the New Law Reports p. 475. In both cases it was
held that the Supreme
Court had power acting in revision to vacate its own order
made per incuriam.
115
The sentences were varied.
In P.C. Batticaloa, 8306 In Revision, (supra), in an appeal from the decision of
a Police Magistrate, Shaw, J. while dismissing the appeal on the facts,
expressed the
view that the Magistrate had no jurisdiction to try the case
summarily. His attention had not been called to the change effected
in the Penal
Code by Ordinance No. 31 of 1919, section 22 (b). His Lordship had sent the case
back for the Magistrate to take non-summary
proceedings. "This decision of mine
was undoubtedly wrong and made pet incuriam", said his Lordship, and varied his
order
taking the error into account. His Lordship said that the case of The
Police Officer of Mawilla v. Galapata, (supra), satisfactorily showed that he
had the power to put the matter right in revision.
In Young . Bristol Aeroplane Co. Ltd, (supra) (cited with approval by Samarakoon,
CJ. in Billimoria v. Minister of Lands, (supra) at p.14; and by Rodrigo, J. in
Ganeshanatham,
(supra) at pp. 377-378), Lord Greene, MR pointed to two classes
of decisions per incuriam that did not come within the scope of
its inquiry in
that case:
(1) a decision in ignorance of a previous decision of its own Court or a Court
of a co-ordinate jurisdiction covering the case;
and
(2) a decision in ignorance of a previous decision of a higher Court covering
the case which binds the lower Court.
The definition of the phrase per incuriam in Lord Goddard's terms has been
regarded as being too restrictive. In Morelle Ltd. v. Wakeling(56)
(followed in
Billimoria v. Minister of Lands, (supra) at p.14 by Samarakoon, CJ. and in
Ganeshanatham, (supra) by Ranasinghe, J. at p. 355 and by Rodrigo, J. at p. 378)
Evershed, MR said as follows:
As a general rule the only cases in which decisions should be held to have been
given per incuriam are those decisions given in
ignorance or forgetfulness of
some inconsistent statutory provision or of some authority binding on the court
concerned so that
in such cases some part of the decision or some step in the
reasoning on which it is based is found, on that account, to be demonstrably
wrong. This definition is not necessarily exhaustive,
116
but cases not strictly
within it which can properly be held to have been decided per incuriam must, in
our judgment, consistently
with the stare decisis rule which is an essential
feature of our law, be . . . of the rarest occurrence."
There are several instances of the Court acknowledging that it had acted per
incuriam in circumstances which might not have been accommodated within Lord
Goddard's definition.
In the Police Officer of Mawilla v. Galapata, (supra) the accused was charged
with an offence under the Excise Ordinance and convicted and sentenced to pay a
fine. At the argument
of the appeal, his counsel took up the point that the
proceedings were bad ab initio, inasmuch as there was nothing to show that
the
complaint or the report on which the accused was brought to Court was made by an
Excise Commissioner, a Government Agent, or
an Excise officer authorised by
either of them on that behalf. Wood Renton, CJ. said;
I called the attention of counsel to the fact that the prosecution purported to
be sanctioned by a signature, which I took from
my own personal experience of
it, to be that of Mr Forrest. The appellant's counsel accepted my assurance that
the signature was
that of Mr. Forrest, and after argument the appeal was
dismissed. The appellant now applies in revision to have the order of this
Court
dismissing the appeal set aside on the ground that the signature in question was
not that of Mr. Forrest at all, or of any
person possessing the necessary status
under section 49 of the Excise Ordinance . . . It appears to me that the powers
of the Supreme
court are sufficiently wide to enable me to interfere by way of
revision. I set aside, as having been made per incuriam and by what
may prove to
be a mistake on the part of the Court itself, the order of 23rd July dismissing
the appeal and send the case back
to the Police Court of Tangalle for further
inquiry and adjudication on the question whether the requisite authority for the
institution
of the proceedings was given. The petition filed in support of the
present application does not indicate whose the signature in
question is. If it
should prove on further inquiry not to be a proper authority for the report, the
whole proceedings will be quashed.
But if, on the other hand, it should be shown
that the
117
signature, whether it is that of Mr. Forrest or not, is a proper
authentication of the prosecution, the conviction and sentence will
stand
affirmed.
In Mohamed v. Annamalai Chettiar, (supra) the Supreme Court used its inherent
powers to free an insolvent from arrest pending the decision of his appeal to
the
Privy Council although there was no statutory authority for such an order.
Garvin SPJ said:
I should be reluctant to subscribe to the proposition that this Court has no
powers other than those derived from express legislation.
Like other courts in
the Empire and in particular Superior Courts, this Court has always been
considered to possess a certain reserve
of powers which are generally referred
to as inherent powers. It has been said that these powers are equal to its
desire to order
that which it believes to be just. This is perhaps too wide and
somewhat misleading a statement. No court may disregard the law
of the land or
purport in any case to ignore its provisions. Where a matter has been
specifically dealt with or provided for by
law there can be no question that the
law must prevail, for justice must be done according to law. It is only when the
law is silent
that a case for the exercise by a Court for the exercise of its
inherent powers can arise . . .
Subject to the limitations above referred to the inherent powers of this Court
would seem to extend to the making of such orders
as may be necessary for the
ends of justice and to prevent abuse of the process of the Court. But these
powers must be exercised
in accordance with sound legal principles and not
arbitrarily whenever a case arises which is not provided for by legislation.
. . . Is it a case which comes within the scope of the inherent powers of this
Court and is it one in which those powers should
be exercised?...
Must we stand by and do nothing to prevent the arrest and imprisonment of the
applicant in the interval, which may well be a long
one, before the order of the
Privy Council is made known? His estate is under sequestration and no pecuniary
or other loss or
118
prejudice to the opposing creditors is involved in granting his
prayer for protection. It only means that their right to arrest his
person and
cast him in prison for debt will be postponed until the Privy Council decides
whether he is a person who is liable to
be arrested and imprisoned.
For my part, I am satisfied that this is a case in which the Court has inherent
power which should be exercised to prevent what
might prove to be a grave
injustice to the applicant and that in granting his application we shall be
acting on sound judicial
principle and in accordance with the intention of the
Legislature manifested in parallel cases for which it has made provision.
I would accordingly direct that the insolvent be granted protection until the
decision of His Majesty in Council upon his appeal
is made known.
In Ranmenikhamy and Another v. Tissera and Others, (supra), an appeal to the
Supreme Court was rejected on the application of counsel for certain respondents
on the ground that
notice of appeal had not been served on one of the other
Respondents. (It might be observed that the failure to serve notice on
a party
against whom an order is made, is a serious procedural irregularity on which the
Court may set aside its order: Craig v. Kanssen(57) ; Chief Kofi Forfie v Barima
Kwabena Sheifah Kenyaschene,(58) Woolfenden v. Woolenden,(59)
cf. Katiramathamby
and another v. Lebbethamby Hadjiar, (supra); Menchinahamy v. Muniweera, (supra).
It was later proved to the Court that the Respondent in question was a minor who
was represented in the action by a duly appointed guardian-ad-litem on whom
notice of appeal had been duly served. It was also conceded
that the objection
was raised and not resisted as the result of a mistake common to both counsel
and that there had been substantial
notice of appeal to the minor Respondent.
The Court (T. S. Fernando and Herat, JJ) set aside its order on the ground that
it had
acted per incuriam.
In Nisha Sudarshi Ganeshi Kumarasena v. Sub-Inspector Sriyantha and Others,(60)
the presiding Judge sent his draft judgment to two other Judges who approved it
and later signed the three final copies of
the judgement. The judgment was
reported in the press and was the subject
119
of adverse comment in the press. The
presiding Judge then realized that the two Judges who had agreed with him had
not been members
of the Bench that heard the matter and submitted the judgment
he had delivered as a draft to the two Judges who heard the matter
with him. One
of those Judges wrote a separate judgment, while the other agreed with the
judgment of the presiding Judge. The presiding
Judge then directed the Registrar
to list the matter for delivery of Judgment and a new Judgment was delivered,
the presiding Judge
explaining that the former decision of the Court had been
made per incuriam.
IS THE MATTER BEFORE US ONE THAT COMES WITHIN THE SCOPE OF THE INHERENT POWERS
OF THE COURT?
Strictly speaking, the 1st Respondent-petitioner, unlike the petitioner in
Ganeshanatham, (supra), did not in his petition expressly invoke this Court to
grant relief in the exercise of its inherent powers.
The directions of the Acting Chief Justice dated the 22nd of December 1995 make
no reference to the inherent jurisdiction of the
Court. Nevertheless, if, the
Acting Chief Justice, of his own motion, was as Humphreys, J. put it in Re a
Solicitor,(61) endeavouring to place the 1st Respondent-petitioner's petition
before the Court "in that most attractive form, an appeal
to the inherent
jurisdiction of the Court," his Lordship, with great respect, had no power to do
so. Article 132(3), in my
view, does not empower the Chief Justice to do so.
That Article, as I have stated earlier, does not confer jurisdiction. The
inherent
jurisdiction of the Court is not vested in it by any provision of the
Constitution, or by Parliament in terms of Article 118 (g)
of the Constitution
but is a power intrinsically attached to the Court as a superior court of
record. (Cf. Article 105 (3); cf.
also Article 118).
Moreover, the fact that the question involved is a matter of general or public
importance has never been regarded as a ground for
the exercise of the Court's
inherent powers.
Be that as it may, giving a liberal interpretation to paragraphs 05 and 06 read
with the prayer of the petition of the 1st Respondent-petitioner
and assuming
that the 1st Respondent-petitioner did invoke this Court to grant relief in the
exercise of its inherent powers, is
his case one that
120
comes within the inherent
powers of the Court? If so, is it a case in which those powers should be
exercised?
Mr Marapana submitted that the matter before us did not "even remotely" come
within the scope of the inherent powers of
the Court.
According to Mr. Goonesekere, the gravamen of the 1st-Respondentpetitioner's
complaint is that, although he was noticed and represented
by Counsel, there was
no opportunity or insufficient opportunity to deal with the matter of the
admissibility and evidentiary value
of the 1st Respondent-petitioner's speech in
Parliament that was used by the majority of Judges to contradict the averments
in
the 1st Respondent-petitioner's affidavit. The basis for holding him liable
was the speech in Parliament. Had it been excluded,
the 1st
Respondent-Petitioner would have been exonerated. Since he had been found
"guilty" on the basis of the inadmissible
speech, the 1st Respondent-petitioner
had suffered injustice.
The 1st Respondent-petitioner states in his petition as follows:
05. The 1st Respondent filed his counter-affidavit dated 23rd May, 1995. The 1st
petitioner annexed to his counter-affidavit dated
31.5.95 an extract of Hansard
of 7.2.95 containing a speech made by the 1st Respondent. This was marked P 16.
As the said extract
was filed along with the counter-affidavit, the 1st
Respondent was unable to counter the same.
06. The question as to whether the statement made by the 1st Respondent in
Parliament was covered by Parliamentary Privilege, was
not raised in the course
of the hearing or even thereafter. His Lordship Justice Fernando, in his
judgment, stated as follows:-
The second issue, as to Parliamentary privilege is one which no one even
mentioned, even in passing. Neither the 1st Respondent
nor his Counsel raised it
in the pleadings, in the written submissions or in the oral argument - although
the Court itself specifically
drew the attention of Counsel to the effect of the
Hansard extracts on the reliability of the 1st Respondent's affidavit. And they
have not sought to raise it even after judgment was reserved.
121
Mr. Goonesekere also drew our attention to the following passage in the judgment
of Fernando, J.:
. . . Ordinarily I would hesitate to disagree with the considered opinion of
Samarakoon, CJ; especially a decision in a case which
was argued for twelve days
in the Court of Appeal and for another four in this Court. More so here, without
the benefit of an iota
of research, or a minute of submissions, by Counsel, upon
an issue on which we ought not to have to depend on our own researches..
Mr. Goonesekere stated that there were two incidents and that it was in respect
of the first incident that the affidavit was filed.
When Mr. Marapana who
appeared for the petitioners addressed Court on the 13th of September, 1995, the
Hansard extract was not
submitted. Later, Mr. Musthapha made submissions on
behalf of the 16th Respondent. It was at the end of the hearing that reference
was made to the speech reported in Hansard for the first time. Counsel for the
1st Respondent, therefore had no opportunity of
responding to the matters
raised. Mr. Goonesekere submitted that the "proper course of action" would have
been to invite
further argument on the matter during which Counsel could have
assisted the Court. The matter is important, because it involves
a consideration
of the issue of parliamentary privilege and the Court ought, in those
circumstances, to have acted "with circumspection
and assistance". Mr
Goonesekere drew our attention to Popplewell, J's observations in Rost v.
Edwards and Others(62):
The courts must always be sensitive to the rights and privileges of Parliament
and the constitutional importance of Parliament retaining
control over its
proceedings. Equally, as Viscount Radcliffe put it in A-G of Ceylon v. De Livera
(63), the House will be anxious to confine its own or its members' privileges to
the minimum infringement of the liberties of others.
Mutual respect for and
understanding of each other's respective rights and privileges are an essential
ingredient in the relationship
between Parliament and the courts.
In the circumstances, Mr. Goonesekere submitted, the Court ought to have sought
the assistance of the Attorney-General in deciding
a matter that impinged on
parliamentary privilege. That was, he said, the
122
invariable practice in England, as numerous decisions of the courts of that
country showed. Mr. Goonesekere quoted the following
words from the judgment of
Popplewell, J. in Rost (supra) at p 644 to illustrate his submission:
It became clear after the initial submissions of counsel that the question of
parliamentary privilege might be involved and counsel
agreed that the only
course open to the court was to adjourn further argument and to set out the
matters which might give rise
to parliamentary privilege in writing; then to
submit those questions to the Attorney-General and the court to ask for the
assistance
of the Attorney-General in resolving what might be a conflict between
the privileges of Parliament and the rights of the parties
freely to present
their case in court.
Accordingly that course was adopted. The court has had the advantage of
submissions by the Solicitor-General as well as helpful
argument by counsel for
the two protagonists in the litigation.
In the cases relating to the petition before us, Mr. Goonesekere submitted that
"counsel were not permitted to make their contribution;
and the Attorney-General
who should have been heard, was also denied the opportunity of assisting the
Court."
Mr. Marapana submitted that it was not correct to state that the speech in
Parliament was sprung on the respondents at the end of
the argument and that
there was no opportunity of dealing with the matter. He stated that the extract
from Hansard (P 16) was annexed
to the counter-affidavit of the petitioners,
dated the 31st of May 1995, in which they responded to the 1st respondent's
affidavit.
The argument took place on the 13th and 27th of September 1995 -
several months after the filing of the extract from Hansard.
In paragraph 05 of his petition, the 1st Respondent-petitioner himself states
that "The 1st petitioner annexed to his counter-affidavit
dated 31.5.95 an
extract of Hansard of 7.2.95 containing a speech made by the 1st Respondent."
123
Wijetunga, J. at p. 21 of his judgment confirms this. His Lordship states as
follows:
In reply to the 1st respondent's affidavit denying the remarks attributed to
him, the petitioners filed a counter-affidavit dated
31.5.95 annexing extracts
from the Hansard of 7.2.95 (P 16)...
Perera, J. too confirms that position at p. 2 of his judgment. His Lordship
states as follows:
In response to this denial, on the part of the 1st Respondent the Petitioners
have filed a counter affidavit dated 31.05.95, annexing
extracts from the
Hansard of 07.02.95 (P 16) which is a record of the proceedings of Parliament on
that date.
The 1st Respondent-Petitioner's complaint as stated in his petition was not that
the speech had been placed before the Court only
at the end of the argument, but
that because it was filed with the counter-affidavit of the petitioners, he had
no opportunity
of refuting it. In paragraph 05 of his petition he states: "As
the said extract was filed along with the counter-affidavit,
the 1st Respondent
was unable to counter the same."
Why could he have not done so through his counsel?
In fact, learned counsel for the 1st Respondent had addressed Court on the
matter of the speech in Parliament. Perera, J. in his
judgment at p.2 states as
follows:
As regards the statements attributed to the 1st Respondent in the Hansard
referred to (P 16), Counsel for the 1st Respondent has
in my view, rightly
submitted that such statements must be considered in the proper context. The
reference to the Katunayake incident
in Parliament that day has been triggered
off by a statement made by a Member of Parliament based on a newspaper report
which
appeared in the "Divaina". Counsel submitted that the contents of the said
report itself have been proved to be false.
There was no reference whatsoever to
the 1st Respondent in that report. It was counsel's submission that the 1st
Respondent
124
in this instance has merely retorted or given a "fighting reply" to the jibes as
is wont to happen in the floor of the
House. This he contended was not a
considered reply to an adjournment question. It is a political speech which
cannot be taken
literally as an admission by the 1st Respondent or the accuracy
of what was in the newspaper or his involvements in violence on
that day.
Counsel submitted that the Court should therefore not place any reliance on the
contents of P 16 and invited the Court
to reject the same.
In my view there is much substance in the submission of counsel on this matter.
The Petitioners' allegations against the 1st Respondent
remain uncorroborated.
I am of the opinion that it would be highly unsafe to tilt the scales in favour
of the Petitioner (s) in
this case relying upon, a general statement made by the
1st Respondent in Parliament particularly having regard to the special
circumstances in which the Respondent made the statement attributed to him.
At page 23 of his judgment, Wijetunga, J states as follows:
The 1st Respondent did not deny or explain the statements attributed to him, by
means of a counter-affidavit; nor did his counsel
seek to deny those statements
or take any objection to their admissibility in evidence. Learned counsel's
position was that such
statements made in Parliament must not be treated as if
they were precise responses to questions; that when the matter was raised,
the
1st Respondent gave a political response, rather than a factual response; that
his observations were general and not intended
to refer to the facts of this
particular incident and that such statements made in the cut-and-thrust of
debate often contain over-statements
and inaccuracies. Hence, counsel submitted
that they cannot be treated in the same way as an averment in an affidavit filed
in
Court proceedings. He strenuously contended that the 1st respondent's
affidavit set out the correct position and that his statements
in Parliament
should not be used to test the accuracy or credibility of that affidavit.
I am not at all attracted by this contention. An averment in an affidavit, no
less than oral evidence, can be tested by reference
to a prior inconsistent
statement . . .
125
No question of parliamentary privilege had, it seems, been raised by learned
counsel for the 1st Respondent. On the other hand, it
appears from paragraph 6
of the 1st Respondent-petitioner's petition, wherein he quotes from Fernando,
J's judgment, that the Court
had "specifically" drawn the attention of counsel
"to the effect of the Hansard extracts on the reliability of the
1st
respondent's affidavit". Mr. Goonesekere in making his submissions also quoted
the passage from Fernando, J's judgment
in which those words occur. Neither the
1st Respondent petitioner, in his petition and affidavit, nor Mr. Goonesekere
challenged
the correctness of Fernando, J's statement. There was an indication
that the speech would be used, and learned counsel for the 1st
Respondent was
conscious of that. Had he any reason to believe that the speech would not be
used, the trouble he took to explain
the way in which the speech should be
considered in relation to the 1st respondent's affidavit is inexplicable. Had
learned counsel
thought that parliamentary privilege stood in the way of the use
of the speech, why did he not raise it? He did not raise the objection
and then
submit that should the Court hold that the speech was admissible, then more
weight should be attached to the 1st respondent's
affidavit than to his speech
in Parliament, or that the speech in Parliament should be disregarded altogether
having regard to
the circumstances in which the speech was made. Learned counsel
did not raise the question of relative worth as an alternative.
He tacitly
accepted the admissibility of the speech and proceeded to argue that it was the
affidavit that should prevail. If it
was his view that the Attorney-General
should be heard on the matter, why did he not say so?
The matter of the admissibility of the speech appears to have been raised by
Perera, J. after perusing the draft judgment of Wijetunga,
J. in which
Wijetunga, J. had used the extract from Hansard. Perera, J. was of the view that
the speech should not be used. Perera,
J. then wrote a separate judgment in
which he held that parliamentary privilege prevented the use of the extract,
citing the provisions
of the Parliamentary (Powers and Privileges) Act, No. 21
of 1953 and certain decisions of the courts. Fernando, J. then wrote a
separate
judgment dealing with the matters raised in Perera, J's draft. After perusing
Fernando, J.'s draft, Perera, J then responded,
in the judgment his Lordship
delivered, to the comments made by Fernando, J with regard to certain
observations made in the draft
judgment of Perera, J. Fernando, J. complained
126
that his Lordship received no assistance, and explains that "for that reason I
have confined my observations to the two decisions
cited by Perera, J. and the
precedents referred to therein, and refrain from comment on recent decisions of
this Court (Dissanayake v. Kaleel,(64); Jayatillake v Kaleel,(65))... But in
this case we do not have to consider whether Samarakoon, C.J. was wrong in
regard to the second of the above principles,
for this case is covered by the
first principle, as the use made by Wijetunga, J. of the Hansard extracts is
well within that principle."
Can it be said that the judgments of the Court in S.C. Applications Nos. 66/95
and 67/95 were attributable to the Court having acted
in ignorance or
forgetfulness of some inconsistent statutory provision or some authority binding
on the Court so that the decision
to use the speech was demonstrably wrong?
Nothing has been placed before us to support such a position. What were the
provisions
of the legislature or decisions of the Court that were overlooked?
Learned Counsel for the 1st Respondent-petitioner did not refer
us to any such
matter. Lord Scarman, as we have seen, translated per incuriam to mean ‘Homer
nodded'. Having regard to the lively
exchange of views on the matter of
parliamentary privilege in the light of the relevant legislation and decisions
of the Court
that were considered by the learned Judges, I cannot possibly say
that the Court acted per incuriam. Indigor quandoque bonus dormitat Homerus,
said Horace. However, there was, in my opinion, no nod on the Judges' side of
the Bar Table. I am not suggesting that there was
a nod on the other side: The
strategies of counsel are, as we said in Hettiarachchi, (supra) entirely up to
them. The Court must take the case as learned counsel deems it best presented in
the interests of his client.
However, once a matter is concluded and a decision
is given, that is an end of the matter.
Let us assume that Perera, J. was right in the interpretation of the law and
that the majority was wrong in using the speech as
it did. If so, can we review
or revise that order? We have no statutory powers to do so. May we do so in the
exercise of our inherent
powers? The fact that a decision is wrong is not a
ground for the exercise of the Court's inherent powers. As Samarakoon, CJ
observed
in Billimoria v. Minister of Lands, (supra) at p. 15:
127
The Attorney-General contended that section 24 applied to stay orders as well.
This is a moot point. The Judges who made the stay
order appeared to have
thought otherwise. They may be right or they may be wrong. Assuming they are
wrong - how does that make
it an order per incuriam? If the order appealed
against is allowed to stand it will open the flood gates for one Bench of the
Court that disagrees with
another's interpretation, made after due
consideration, to assume a jurisdiction that it does not have.
Naturally, the Court welcomes the assistance of counsel. Indeed, as it was
pointed out in Hettiarchchi (supra), following Jones v. National Coal Board, (infra)(67), the nature of proceedings in our Courts is such that the assistance
of counsel is indispensable. I might venture to add that
the quality of justice
partly depends on the degree of assistance given by the Bar, including the
"official Bar". The
Attorney-General was a party to the proceedings, the 79th
Respondent in S.C. Application No. 66/95 and the 46th Respondent in S.C.
Application No. 67/95; but he was not present or represented though noticed.
When assistance is not available, or is inadequate,
the Court must nevertheless
act, doing the best it can in the circumstances.
In Billimoria's case, (supra), Samarakoon, CJ. at p.15 observed, with some
asperity, as follows: "The Attorney-General stated that had the Court
the
benefit of a full argument it would not have made the stay order. This kind of
argument gives little credit to the Judges and
undue credit to the pleader." In
the cases relating to the petition before us, the question of parliamentary
privilege in
regard to the admissibility of the report of the speech received
the consideration it did in the judgments delivered because one
of the Judges
raised it, supplying what some people may suppose was a gap in the case for the
1st Respondent. However, there is
nothing to show that had the matter not been
raised by Perera, J. the Court would have acted per incuriam. Admittedly
Wijetunga, J. in his draft judgment did not deal with the question of
parliamentary privilege; not being a contentious
matter when he prepared his
judgment, he was not obliged to deal with it. It does not mean that he had
overlooked the question.
When Perera, J. expressed his views, neither Wijetunga,
J. nor Fernando, J. were convinced by his Lordship's reasoning. Perhaps,
had
learned Counsel dealt with the matter, he might have been more persuasive? But
does that make the
128
decision one that was given per incuriam? Halsbury (Vol. 26 paragraph 578,
followed with approval in Hettiarachchi (supra) at p. 299) states: "A decision
should not
be treated as given per incuriam, however, simply because of a
deficiency of parties, or because the court had not the benefit of
the best
argument".
In London Street & Tramways Co. v. London Council,(66) where the question was
whether a decision of the House of Lords was conclusive and binding, it was held
that it was. The Earl
of Halsbury, LC, at pp. 380 - 381, responded as follows to
the submission of counsel:
My Lords, I only wish to say one word in answer to a very ingenious argument
which the learned counsel set before your Lordships.
It is said that this House
might have omitted to notice an Act of Parliament, or might have acted upon an
Act of Parliament which
was afterwards found to have been repealed. It seems to
me that the answer to that ingenious suggestion is a very manifest one -namely,
that that would be a case of a mistake of fact. If the House were under the
impression that there was an Act when there was not
such an Act as was
suggested, of course they would not be bound, when the fact was ascertained that
there was not such an Act or
the Act had been repealed, to proceed upon the
hypothesis that the Act existed. They would then have ascertained whether it
existed
or not as a matter of fact, and in a subsequent case they would act upon
the law as they then found it to be, although before they
had been under the
impression, on the hypothesis I have put, either on the one hand that an Act of
Parliament did not exist, or
on the other hand that an Act had not been repealed
(either case might be taken as an example) and acted accordingly. But what
relation has that proposition to the question whether the same question of law
can be reargued on the ground that it was
not argued or not sufficiently argued,
or that the decision of la w upon the argument was wrong? It has no application
at all.
The emphasis is mine.
Hettiarachchi's case is not an exception to the rule that the Court will not
review or revise its judgment in the exercise of its inherent powers
on the
ground that the Court had not the benefit of the best argument.
129
In fact, the Court, at page 299, expressly said otherwise. In that case, Mr.
Goonesekere who subsequently appeared for the petitioner
and pleaded his cause
with success, unreservedly accepted the correctness of the decision of the
Court on the two matters that
had originally been argued. The petitioner's
application could not be sustained on those two grounds. Counsel who had
appeared
earlier failed to respond to "several not-so-subtle indications" from
the Bench that certain relevant matters should be
adverted to in support of the
application, (see page 295). The Court was unwilling to descend into the forum
and supply the deficiency.
At pages 300-301, the Court explained its position as
follows:
. . . should the Court have intervened to do what learned Counsel who then
appeared for the Petitioner had failed to do? That would
have been quite
improper; proceedings under Article 126 are essentially adversarial in nature.
Of course, the Court has ample power
to probe a matter for the purpose of
ascertaining the truth; to expedite the work of Court by suggesting the
consideration of issues
of fact and law which seem to arise; and by indicating
how a submission might be clarified or refined; and by guiding an argument
in
the direction of the matters of fact and law actually in issue. But it will
nevertheless leave Counsel entirely free to decide
what he wishes to place
before the Court, and how he proposes to do so. The Court recognizes and
respects Counsel's right to do
so. It will not encroach on Counsel's rights,
especially when he repeatedly insists on following a plan of action he appears
to
have set himself and disregards suggestions from the bench as to an
alternative course that might be followed. We must take the
case as Counsel
deems it best presented in the interest of his client. Moreover, the Court must
take care to guard itself against
any appearance of bias which might result from
intervention, for justice must not only be done, but must be seen to be done. As
Judges, we are expected to be neutral. Therefore the Court must refrain from
entering into the arena by initiating and presenting
legal and factual
submissions on behalf of a party. In Jones v. National Coal Board,(67)Lord
Denning said:
(The judge) must keep his vision unclouded . . . let the advocates one after the
other put the weights into the scales - the nicely
130
calculated less or more - but the judge at the end decides which way the balance
tilts, be it ever so slightly . . . The judge's
part in all this is to hearken
to the evidence, only himself asking questions of witnesses when it is necessary
to clear up any
point that has been overlooked or left obscure; to see that the
advocates behave themselves seemly and keep to the rules laid down
by law; to
exclude irrelevancies and discourage repetition; to make sure by wise
intervention that he follows the points that the
advocates are making and can
assess their worth; and at the end to make up his mind where the truth lies. If
he goes beyond this,
he drops the mantle of a judge and assumes the role of an
advocate; and the change does not become him well . . . Such are our standards.
The subsequent matter before the Court in Hettiarachchi, (supra) was not an
application for review or revision. The Court had refused the petitioner leave
to proceed with his application.
Although the decision of the Court was final,
the terms of its order clearly indicated that the Court was not satisfied that
all
the relevant material had been placed before it. In the "exceptional
circumstances of the case", (pp. 304-305) the Court
granted the petitioner leave
to proceed.
Nor is Broome v. Cassell & Co Ltd. & Another,(68) a persuasive precedent that
might assist the 1st Respondent -petitioner. In Rookes v. Barnard,(69)
Lord
Devlin, in the words of Lord Denning at p. 198 in Broome's case,
. . . threw overall that we ever knew about exemplary damages. He knocked down
the common law as it had existed for centuries. He
laid down a new doctrine
about exemplary damages. He said that they could be awarded in two very limited
categories but in no other,
and all the other Lords agreed with him . . .
Denning, MR, quoting examples, pointed out that there had been a "wholesale
condemnation" of the new doctrine in Commonwealth
countries. His Lordship
pointed out (at pp. 198 - 200) that counsel who argued Rookes v. Barnard had
. . . accepted the common law as it had been understood for centuries and did
not suggest any alteration of it. Yet the House,
131
without argument, laid down this new doctrine. If the House were going to lay
down this new doctrine - so as to be binding on all
our courts - it ought at
least have required it to be argued. They might then have been told of the
difficulties which it might
bring in its wake . . . Next I say that there were
two previous cases in which the House of Lords clearly approved the award of
exemplary damages . . .It was not open to the House in 1964 to go against those
decisions. Lord Devlin must have overlooked them,
for he said that `there is not
any decision of this House approving an award of exemplary damages'. Finally, I
say that the new
doctrine is hopelessly illogical and inconsistent . . . All
this leads me to the conclusion that, if ever there was a decision of
the House
of Lords given per incuriam, this was it.
A decision of the Supreme Court, that is to say a decision of the majority of
Judges of any Bench of the Court constituted according
to the provisions of law,
is the decision of the Supreme Court. Such a decision is final and conclusive.
The Supreme Court has
no statutory jurisdiction to vary, review, revise or in
any way alter or amend its decision, even though it may be alleged to be
wrong.
The Supreme Court as a superior court of record, however, has a certain reserve
of powers which are generally referred to
as `inherent powers' which the
Constitution recognizes in Article 105 (3): (Per Samarakoon, CJ. in
Ganeshanatham, (supra) at p. 329; cf. Garvin, SPJ in Mohamed v. Annamalai
Chettiar, (supra). In the exercise of its inherent powers, the Court may revise
its decision in certain limited circumstances. "The
grant of such relief is of
course a matter entirely in the discretion of the Court and will always be
dependent on the circumstances
of each case". (Per Weeramantry, J. in Raju v.
Jacob (supra). The exercise of the jurisdiction of the inherent powers of a
Court, including the Supreme Court, must be in "appropriate
circumstances" (Per T. S. Fernando, J. in
Ranmenikhamy, (supra) at p. 215). In that connection, it
must be remembered that the jurisdiction which the Court is called upon to
exercise
is "extraordinary" (per Kulatunga, J. in All Ceylon Commercial &
Industrial Workers Union, (supra) at p. 296). Where it is not a matter in which
a decision has been given in ignorance or forgetfulness of some inconsistent
statutory provision or of some authority binding on it - so that it cannot be
said that it is a case in which some part of the
decision or some step in the
reasoning on which it is based is, on that account,
132
demonstrably wrong, then, as pointed out in Morelle Ltd., (supra) and followed by Ranasinghe, J. in Ganeshanatham, (supra), at p. 355, an intervention on the ground that the Court had acted per incuriam must be "of the rarest occurrence". In deciding whether it is a case which comes within the scope of the inherent powers of this Court, and whether it is one in which those powers must be exercised, the Court must act "in accordance with sound legal principles and not arbitrarily" : (per Garvin, SPJ in Mohamed v. Annamalai Chettiar). The Court guides itself by reference to parallel instances in legislation, (e.g. see Mohamed v. Annamalai Chettiar (supra); and Jacob v. Raju, (supra)); or by decisions in analogous cases, (e.g. see The King v. Baron Silva, (supra) ; Palitha v. O.I.C. Polonnaruwa and others, (supra), and All Ceylon Commercial & Industrial Workers Union v. Ceylon Petroleum Corporation and another, at p. 297); or by reference to the practice of the courts in comparable situations, or by a combination of such methods (e.g. see Menchinahamy v. Muniweera, (supra)), having regard to what is appropriate in the circumstances of the case. The Supreme Court is "a Court of Justice" (per Abrahams, CJ in Velupillai v. The Chairman U.D.C., Jaffna, (supra) and the Court can intervene to prevent injustice. (Cf. per Samarakoon, CJ. in Ganeshanatham at p. 329). However, as Garvin, SPJ pointed out in Mohamed v. Annamalai Chettiar, (supra), the powers of the Court in that regard, are not, as it is sometimes supposed, "equal to its desire to order that which it believes to be just". No Court, much less any judicial officer, including the Chief Justice, may disregard the law of the land or purport for any reason whatsoever to ignore its provisions, for justice must be done according to law: (cf. per Garvin, SPJ in Mohammed v. Annamalai Chettiar, (supra); and per Lord Loreburn in Brown v. Deam and Another.(70), including the provisions of the Constitution, (and Rules made thereunder: cf. Young v. Bristol Aeroplane Co. (supra) at p. 300), the enactments of the Legislature and the inveterate practices of a Court. (Cf. Suren Wickramasinghe and Others v. Cornel Lionel Perera and Others (supra). The inherent powers of a Court are adjuncts to existing jurisdiction to remedy injustice. They cannot be made the source of new jurisdictions to revise a judgment rendered by a Court. (Per Samarakoon, J. in Ganeshanatham, (supra) at 329; per G.P.S. de Silva, CJ. in Senerath v. Chandraratne (supra) at p. 216; per Kulatunga, J. in All Ceylon Commercial & Industrial Workers Union (supra) at p. 297).
133
For the reasons stated in my judgment, this Court has no statutory powers to
rehear, revise, review or further consider its decisions
in S.C. Applications
Nos. 66/95 and 67/95; and there are no grounds for holding that there are
circumstances that bring those decisions
within the scope of the inherent powers
of this Court. I, therefore, reject the petition.
For the removal of doubt, I declare the directions made by the Hon. Acting Chief
Justice dated the 22nd of December 1995 suspending
the operation of the
decisions of the Court in S.C. Applications Nos. 66/95 and 67/95 to be of no
force or avail.
There will be no costs.
G.P.S. DE SILVA, C.J. - I agree.
WADUGODAPITIYA, J. - I agree.
RAMANATHAN, J. - I agree.
ANANDACOOMARASWAMY,J.-I agree.
Petition rejected.
] [Hide Context]
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