Patently unjust Commission findings

When Local Government elections of 2023 are around the corner, these two appeals for a writ application arising from a Commission report are illuminating. The issues under review transpired in the Eastern Province.

A special Commission comprising of a single Commissioner was appointed to inquire into election law violations at a Local Government election in the Eastern Province.

The Commissioner was not empowered to recommend the withholding of civic rights of those found guilty of election law violations, but yet he duly recommended stripping certain individuals of civic rights. The aggrieved individuals appealed to the Court of Appeal for a writ against the adverse Commission findings, which was not granted, and aggrieved from that decision they came to the Supreme Court by way of appeal. ((Ratnayake Menike v. Dayananda and Others - SLR - 57, Vol 1 of 2004 [2003] LKSC 15; (2004) 1 Sri LR 57 (September 5, 2003) and Dharmaratna v. Samaraweera and others. S.C. Appeals 11 and 12/2002.))

Here is what the Supreme Court judgement says about how the two appeals ended up in the apex Court:

“These two appeals relate to a single judgement of the Court of Appeal dismissing two separate applications filed by the two appellants for writs of certiorari to quash the adverse findings and recommendations of the 1st respondent, a one man Commission of Inquiry appointed under the Commissions of Inquiry Act, No. 17 of 1948. The two appeals were taken up together as they each involved three questions of law; whether the 1st respondent acted in breach of the principles of natural justice in making those findings, whether he acted ultra vires in making those recommendations and whether the Court of Appeal erred in law in holding, ex mero motu, that the appellants were guilty of laches although those grounds were never urged by the respondents in their pleadings and submissions, thereby denying the appellants the opportunity of meeting that plea.”

The Commissioner was appointed by a special warrant and he ordered an inquiry to which strangely the two appellants were not summoned. Though it was claimed that the appellants agreed to the procedure for the inquiry, they had done no such thing.

Even the evidence led against the two appellants was led in their absence and the appellants were never notified. They were not notified subsequent to the leading of evidence either though the Commission relied on the evidence to come to an adverse finding against the appellants. How it escaped the Commissioner that it was a very flagrant instance of the violation of principles of natural Justice is rather befuddling.

The Supreme Court judgement states:

“Not been given the natural Justice and then incriminated. The evidence of I.T. Kanagaratnam, N. A. Jayashantha, S.B. Upali Hewage, T.P.F. de Silva and Ali Maulana who testified before the Commission prior to January 1, 1997 relied upon by the Commission to come to an adverse finding against the appellant was therefore led in his absence and without notice (even subsequently) to the appellant. The Commission also relied on the evidence of one Benjemin. However, the name of said Benjemin was not disclosed either in ‘P3’, P6 or ‘P7'. The appellant states that he had no notice that Sirisena Cooray was also due to testify before the Commission.”

P3 etc. referred to documents with transcripts of evidence led, that were provided to the appellants. It appears that the Commission relied on a peculiar modus operandi. Instead of informing the appellants that they were being investigated formally by the Commission, they were summoned later as witnesses during the Commission proceedings. They were then told that as witnesses they were expected to pick up any incriminating evidence that transpired against them in evidence led, and had to defend themselves accordingly.

The judgement record states:

“However the respondents concede that when the appellant testified on 18.04.1997 he did so on summons as a witness and not as a person whose conduct was the subject of the inquiry or who was in any way implicated or concerned in the matter under inquiry. He was not informed of the content of the evidence that has been placed before the Commission by witnesses who testified before ‘P3'. The appellant's consistent position had been that since the witnesses who testified on ‘P3’ and ‘P7’ did not implicate him and therefore entitled to assume that the other witnesses who testified before the Commission had not implicated him. To expect the appellant to sit through the entire proceedings in anticipation of any incriminating material against him in the absence of any warning in terms of section 16 or to stay vigil to encapsulate any incriminating evidence to my mind would defy all norms of common sense and reasonableness.” Section 16 refers of the Commissions of Inquiry Act, No. 17 of 1948 (‘The Act’) which deals with the procedure by which witnesses etc. are summoned before a Commission of Inquiry.

The Supreme Court held that the proceedings of the Commission were in flagrant violation of the audi alteram partem rule (in simple terms, giving a hearing to all parties), and must be quashed on that ground.

The Court of Appeal had held that the recommendations made by the Commission with regard to the placing of a civic rights disability on the appellants was not ultra vires, or outside the mandate of the Commission. But the Section of the Commission Act which enables the Commission to make recommendations empowers the Commission to make such recommendations only on issues such as payment of costs etc. However, as seen from the excerpt of the Appeal Court judgement below, that Court had held that there is no bar to making other recommendations outside of the recommendations allowed by the Commission Act:

“There does not seem to be anything to prevent the Commissioner from making recommendations unless such recommendations are inconsistent or adverse to the findings arrived at on an evaluation of the evidence placed before the Commission but recommendations of the Commission are not bound within the ambit of paragraph 7(f) of the said Act. This merely deals with the recovery of costs and expenses. This provision does not exclude the right of the Commission to reach other recommendations outside the recommendations referred to in paragraph 7(f) of the Act."

The Supreme Court disagreed with this position. The appellant in one of the cases had been before the Commission on just one day as that was the only day he was summoned. In that particular case out of the two under review here, the appellant was never informed that there was any evidence that was adverse to him that was led before the Commission. But irrespective of that, it was recommended that his civic rights be revoked.

This is how the Supreme Court recorded this aspect in judgement:

“It is also to be noted that the appellant in 695/98 was informed by ‘P3’ and ‘P7’ that there might be evidence placed before the Commission that might be adverse to the appellant. However the appellant in CA 1202/98 appeared before the Commission on summons on 13.01.1997 and did not appear before the Commission thereafter. The findings against the appellant in 1202/98 has been arrived at on the evidence that has been placed without the appellant ever being informed. To this extent there has been a misappreciation of the contents of the cases in respect of each of the appellants. Findings and recommendations against the appellant must be quashed for breach of natural justice and excess of jurisdiction.”

Breach of natural Justice and excess of jurisdiction are strong words indeed, but also, it was stated categorically that the Court of Appeal had substantially erred.

The judgement of the Court of Appeal was set aside, and mandates in the nature of writs of certiorari were issued to quash the 1st respondent's findings (contained in his Report marked A3) of involvement/guilt as against the two appellants, and his recommendations therein that the two appellants be deprived of their civic rights for seven years and that criminal proceedings be instituted against them. Each of the appellants was awarded a sum of Rs. 5,000 payable by the State.

The Commission findings were set aside, and the appeals against the judgement of the Court of Appeal were allowed.