Gamini Dissanayake (Petitio... - Human Rights Commission of Sri ...

Gamini Dissanayake (Petitioner In Sc 4/91) V. Kaleel, M.C.M. And Others file:///C:/Documents and Settings/kapilan/My Documents/Google Talk ...
declared policy) ; yet there was material to suggest that the authority might have been under some misapprehension.
But the court was not satisfied that the authority would inevitably have made the same decision, and Certiorari was
granted to quash the decision. In Maradana Mosque v. Mahmud (85) , the Privy Council did not come to a finding that
a substantial case had been made out the appellant had placed some material and it was considered unnecessary to
decide whether it could be a valid answer to say that he had in truth no defence if given a hearing.
" No injustice " or " no real prejudice " : This is related to the " useless formality " principle, although the
stress seems to be more on the penalty rather than the decision. Blynn v. Keele University, was invoked to support
the contention that the denial of a hearing caused no injustice. The Court did not hold that because there was no
injustice, there was no duty to give a hearing, but, in the exercise of its discretion, refused to grant relief in respect of
the denial of
natural justice. Certain undergraduates had appeared naked in the campus. By 30th June 1970, the
Vice-Chancellor had clear and reliable evidence that the plaintiff was one of the offenders ; term ended that day, and
some of the offenders were graduating on 1st July, whereupon they would no longer be subject to the disciplinary
jurisdiction of the University ; holding an inquiry would then have become futile in regard to them. He could have
punished them summarily, and granted a hearing to the others, but in order to treat all offenders equally, he decided
to exercise his disciplinary powers summarily, and to give them all a right of appeal to the University Council.
Accordingly, he excluded the plaintiff from residence on the campus for one year, and imposed a fine of ten pounds.
The plaintiff appealed to the Council (justifying his harmless " sunbathing ", and deploring the " proven psychologically
harmful aftermath of Victorian prudishness ") ; on 10th August the Council notified him that his appeal was fixed for
2nd September. The plaintiff had gone abroad, but his mother acknowledged the letter, and stated her own views.
He was absent and unrepresented, when his appeal was taken up, and it was dismissed. It was held that the
Vice-Chancellor was acting in a quasi-judicial capacity (and not in a " magisterial " capacity or in a matter of internal
discipline) ; that he was bound to comply with natural justice. However the plaintiff was refused relief in the exercise
of a discretion which " should be very sparingly exercised "; the facts were not in dispute, the offence merited a
severe penalty, the penalty imposed was appropriate, and had he been heard, all that he could have done would
have been to plead in mitigation. While not disregarding the importance of such a plea in an appropriate case, the
deprivation of that opportunity was not considered sufficient to set aside a decision which was intrinsically a perfectly
proper one. That decision cannot apply where the charge is not clear, or defence is imposed, especially where
mitigation is not obviously out of the question.
I must not fail to mention that the Privy Council, in Annamumthodo (at p. 625), rejected the suggestion " that
a man. could not complain of a failure of natural justice unless he could show that he had been prejudiced by it
............. It is a prejudice to any man to be denied justice. He will not, of course, be entitled to damages if he
suffered none. But he can always ask for the decision against him to be set aside."
" Urgency " : Learned President's Counsel for the Respondents submitted that the need to take prompt
action justified the denial of a hearing. The Petitioners after signing the notice of resolution commenced a campaign
against the Executive Presidential system and the President, couched in unrestrained language and accompanied by
the widest possible publicity. The unity, stability and cohesiveness of the Party was threatened. Urgent action was
necessary. After expulsion the Petitioners intensified their campaign, and this confirmed that prompt action was vital
(but such subsequent conduct may equally be attributable to resentment engendered by denial of natural justice).
Reliance was placed on Glynn as well as Gaiman v. National Association for Mental Health (86) . In Glynn, there was
absolute urgency : had the Vice-Chancellor waited one day more, some of the offenders would have been outside
jurisdiction. The penalty was not grave, and a right of appeal was expressly reserved the plaintiff failed to avail
himself of it. The punishment imposed on the Petitioners was the maximum ; once communicated to Parliament the
decision was probably irrevocable ; there: was no provision for internal review or reconsideration. It may be that
Working Committee justifiably felt that the Petitioners were seeking to tie up the matter in the courts indefinitely, by
improperly instituting the District Court actions ; it is arguable that the effect of Article 99 (13) (a) is to exclude
injunctive relief. Those considerations would have justified not delaying a decision beyond Monday morning. Where
urgent action is required, the action taken must not be more precipitate than the circumstances require. Socrates
was given a hearing before he was condemned, but pleaded with his judges
" I cannot convince you, the time has been too short ; if there were a law at Athens as there is in other cities,
that a capital cause should not be decided in one day, then I believe that I should have convinced you. But I cannot in
a moment .........."
Surely the Petitioners could have been given one day, in a capital cause? Time till Sunday to show cause,
29 of 56 4/20/2011 1:18 PM
190
191