First Lankan comparative study on ‘Commissions of Inquiry’:

Invaluable contribution to the Judiciary

By Rosanne Koelmeyer Anderson

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‘Justice delayed is justice denied’ In a bid to ensure that justice is meted out judiciously, Commissions of Inquiry have been appointed from time to time with their functioning and purpose in countries becoming a significant point of discussion.

In an interview with Sunday Observer, the septuagenarian Dr. L. M. Jayaratne, former eminent Supreme Court Judge, scholar, researcher and former Governor of the Southern Province , one of the most academically and professionally qualified judicial persona to be associated with Sri Lanka’s esteemed legal fraternity and yet prepared to render his services to the nation in a honorary capacity said he has been the first ever to embark on a comparative study of ‘Judicial Review of Commissions of Inquiry’. Dr. Jayaratne has made an indelible mark in Sri Lanka’s judicial history.

A comprehensive comparison on the approach of judges and their amenability towards Judicial Review of Commissions of Inquiry in various countries and the potential or irrevocable harm that could be caused to a person’s reputation or career in a report of a Commission of Inquiry or in instances where purely administrative decisions become the basis of an issue of a writ of Certiorari of Prohibition were some of the issues of importance Dr. Jayaratne had dealt with in a broader perspective.

Dr. Jayaratne, the first Magistrate of the Price Control Court established during the time of T.B. Illangaratne in 1972 is of the view that a Commission of Inquiry should be appointed rarely, selected judiciously, equipped with the minimum effective powers of investigation, guided by flexible rules of procedure and amendable by a court of law for the purpose of preventing or correcting an excess or abuse of power.

The court should protect the robust Commission but condemn the tyrannical, Dr. Jayaratne explained. The study analyses the origins and the development of Commissions of Inquiry and the theory and practice of the control of courts exercised by way of judicial review.

References have been made to other jurisdictions to set the subject in its proper comparative perspective with the experience of Great Britain, Canada, Australia, New Zealand, India, Sri Lanka and the United States of America and their statutory and common law remedies of judicial review.

Dr. Jayaratne says examining the relevant history, legislation, the extensive case laws and books and articles of academic commentators it is evident that there are manifold problems and tasks imposed on the Commissions of Inquiry.

The last few years have witnessed the appointment of Law Reforms Commissions and passing of legislation affecting amendment to the Commission of Inquiry Acts in countries like Canada, New Zealand, India and Australia.

‘The main objective of such an Inquiry was to protect the individuals who became the subject of Inquiry, the witnesses who appeared before the Commission and the Commissioners themselves.

Further, parliamentary legislation to amend the existing Commissions of Inquiry Acts cannot be ruled out should there be judicial decisions calling or recommending such amendments and it is not uncommon to see that amendments are effected due the public outcry’, he added.

‘In Great Britain , the appointment of Commissions of Inquiry to carry out investigations is a British concept of great antiquity with the first Royal Commission being the Domesday Inquest of William I gazetted in 1086. Since then, the classic function of the Royal Commission has been to ‘inquire into and report’ on natural disasters, blunders and corruption in high places.

There is no adversarial contest. There is no Commissions of Inquiry Act in Great Britain like in countries such as Canada, New Zealand, India and Sri Lanka. Instead what operates is an Enactment called Tribunals of Inquiry(Evidence) Act 1921 by which Parliament from time to time authorizes inquiries which become the focus of public attention’.

‘In Sri Lanka, the Commissions of Inquiry Act was enacted in 1948 and has never been under review since. The past few decades have witnessed the birth of two other Commissions Acts namely the Criminal Justice Commissions Act and the Presidential Commissions Act of which only the latter exists.

The Commissions of Inquiry Act was activated from the time of some very important Commissions: the De Mel Commission, the Sansoni Commission and the G.P.A. de Silva Commission.

Unlike in other countries like Canada there is no statutory provision in Sri Lanka for a person involved in a Commission to move a Commission to state a case to a higher court but a Commissioner of his own may report a matter to a higher court due to any matter of complexity.

Unless a judicial review is instigated by an application of a Writ of Prohibition or certiorari, there is no opportunity to discuss the legal implications pertaining to the subject matter of the Inquiry.

Compared with other countries, in regard to the number of Commissions appointed under their respective Commissions of Inquiry Acts, Sri Lanka ranges far below in number.’

Dr. Jayaratne, born in the deep southern village of Ahangama received his early education at the village school, Dharmarama with the Mahavihara Temple providing his religious background while he received his secondary education at Mahinda College Galle and St. Peter’s College, Colombo which enabled him to join the Ceylon Law College.

In the late 1950’s he passed out as a proctor and appeared as an assigned counsel with Mr E.F. N. Gratien and Mr George Rajapakse in a complicated murder case at the Galle Assize Court: memorable moments in his life, Dr. Jayaratne recalls.

Having practised at Matara for nearly six years he sailed to England with his newly wedded wife to pursue higher studies where he joined the University of London and graduated with an LL.B Degree.

He thereafter joined the Inns of Court, Inner Temple London and passed out as a Barrister and was called to the English Bar in 1969. Being enrolled in the Roll of Barristers maintained in the Queens Bench Division, he became entitled to practise in England, Wales and the Privy Council. Dr. Jayaratne subsequently returned to Sri Lanka in 1969 and practised for a while before he was absorbed to the Sri Lanka judiciary as a Magistrate in 1971 and thereafter commenced sustained research for the Degree of Doctor of Philosophy under the expert guidance of Professor G. L. Peiris.

‘After a span of eighteen years in the judiciary while presiding as a High Court Judge in Colombo, Dr. Jayaratne was invited by the Chief Justice of Fiji to take up appointment as a Supreme Court Judge (Puisne Judge)in Fiji. By this time cases were filed by the army against some of the Fiji born Indians on charges of treason.

His enduring interest in the judicial work took him to Solobadan Milosevic in the international Court of Justice and the International Court of Justice (Peace Palace)in the Hague. Meanwhile, Dr. Jayaratne was also invited by the Queen to attend a garden party at Buckingham Palace in 1967.

He also got an opportunity to watch the Privy Council proceedings as well. Internationally renowned legal experts including Lord Sidney William Templeman and Dr. J.A. L. Cooray, former member of the Constitutional court too have commended Dr. Jayaratne’s contribution to the legal sphere.

Commenting on the judicial system in Sri Lanka, Dr. Jayaratne said the issue of law’s delays has not shown much improvement although more judges have been appointed to the judiciary in the recent past. The backlog of pending cases has been an ongoing problem which needs to be addressed.

‘During Justice Akbar’s time to the question of law’s delays was being addressed and it is still a point of discussion. Increasing the number in the judiciary is not the answer to the laws delays. Justice delayed is justice denied. People blame the judges but the Police are equally to be blamed.

They do not file plaint in time and lawyers too keep asking for dates and cases are being postponed most of the time. This has to be remedied by introducing less cumbersome court procedures. Procedures improvement with deadlines to file answers and plaints should be maintained.

Non summary inquires are a waste of time. Filing indictment at the outset is best.’ ‘Today, the quantum of crime has not gone down but the mode of crime is more horrendous and inquires have thus become more complicated.

It is very important however that judges hold themselves in high esteem and segregate themselves as far as possible and there are some important guidelines to be followed which would help judges maintain an unblemished service record,’ he further added.

Guidelines for judges

* A judge has to be honest beyond blemish or suspicion of dishonesty.

* A judge has to dispense justice at a Temple of Justice and respect should be given to a judge.

* In dispensation of justice a judge ought to be fearless, placid and calm on the bench. Off the bench he has to be discreet, witty and sociable.

* A judge has to expect the cooperation of the lawyers and the lawyers have to win the confidence of the judge.

* Self imposed aloofness from society is a must. He/she should not wear the mantle of a socialite and carefully sift the invitations he gets for functions. Punctiliousness and punctuality go hand in hand. Zealousness and industry fortifies the foundation of a good judge.

* Justice must not only seem to be done but must be done and embarrassment must be avoided at any cost.

* A judge should be fearless and not fearful of lawyers.

* A judge should become judicially popular and socially unfamiliar.

* A judge should avoid home jurisdiction.

* Instincts, emotion, passions, anger should not be allowed to surface in the course of dispensation of cases.

* A judge should be in full control of the Trial Roll.