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 ...
may be in writing, thus enabling the Working Committee to take a decision on Sunday evening or early Monday
morning. Greater urgency than that has not been established. Gaiman does not help the Respondents. It dealt with
the expulsion of members of a Company limited by guarantee, by a decision of the council of management. The point
in issue was whether the council had exercised the power to expel members acting
bona fide in what it believed to be in the interests of the company; in the exercise of that power the council
might have to act at short notice, without hearing those affected, but this did not constitute an abuse of power. It
was expressly held that the principles of natural justice did not apply to the expulsion of members, and the court did
not decide that urgency superseded natural justice. .
" Discretion " : The Respondent's also contended that the court has a discretion to refuse relief, despite a
denial of natural justice. I have already dealt with the circumstances in which that discretion was very sparingly
exercised in Glynn, which is completely distinguishable. Learned President's Counsel referred to a passage in
Gaiman (at p. 381) where Megarry, J., having held that natural justice does not apply, says " If I am wrong in that,
then I consider that the injunctions should be refused as a matter of discretion ". His reasons are clear : the plaintiff
had not shown a strong prima facie case for the existence of the right claimed, nor did the balance of convenience lie
in favour of granting the injunctions. These are considerations relevant to interlocutory injunctions, and that indeed -
and that alone - was what Megarry, J., was dealing with. That dictum therefore has no application when, as now, a
final order has to be made. Secretary of State for Trade v. Hoffman-La Roche (87) , was also cited. That too dealt
with an interlocutory injunction, sought in proceedings to enforce a statutory order (pursuant to a report of the
Monopolies Commission), which had been approved by Parliament. It was contended that the Monopolies
Commission acted contrary to the rules of natural justice. Even if this be assumed, said Lord Denning, M.R., its
report was not void, and
" .........it is within the discretion of the court whether to grant him such a remedy or not. He may be
debarred from relief if he has acquiesced in the invalidity or has waived it. If he does not come with due diligence and
ask for it to be set aside, he may be sent away with nothing : see R. v. Senate of the University of Aston, ex parte
Roffey. If his conduct has been disgraceful and if he has in fact suffered no injustice, he may be refused relief : see
Glynn v. Keele University : Ward v. Bradford Corporation(88). If it is a decision or order or report which affects many
other persons besides him, the court may not think it right to declare it invalid at his instance alone .........."
He did not think that it would be open to the court, even at the end of the trial, to declare invalid a statutory
order approved by Parliament. That decision is therefore inapplicable to the case with which we are concerned.
"Subsequent hearing is enough ": It was then contended that since the Petitioners were entitled to canvass
their expulsion in proceedings under Article 99 (13) (a), firstly, the denial of a hearing did not matter, and secondly,
even the right to a hearing was excluded. Reliance was placed on De Simith, Judicial Review of Adminstrative Action
(4th ed, 1980, pp 193-194):
Can the absence of a hearing before a decision is made be adequately compensated for by a hearing ex
post facto ? A prior hearing may be better than a subsequent hearing, but a subsequent hearing is better than no
hearing at all ; and in some cases the courts have held that statutory provisions for an administrative appeal or even
full judicial review on the merits are sufficient to negative the existence of any implied duty to hear before the original
is made. This approach may be acceptable where the original decision does not cause serious detriment to the
person affected, or where there is also a paramount need for prompt action, or where it is impracticable to afford
antecedent hearings .................................................................................... If, of course, the initial decision is
only provisional in the sense that it does not take effect at all until a prescribed period for lodging objections has
expired, the opportunities thus afforded to a person aggrieved are in substance a right to an antecedent hearing."
The learned author does not express unqualified approval of any such judicial approach ; he considers only
that it " may be acceptable " in three situations : no serious detriment, urgency, and impracticability. Those are some
of the exceptional situations which I have just considered, and they do not exist here. He sets out a further proviso :
statutory provisions must exist for either an administrative appeal or full judicial review on the merits. That seems to
me to refer to an integrated statutory scheme, covering both the original decision and the appellate proceedings ; not
to situations where review or appeal is by reason of some independent provision. This is made clear elsewhere:
" Whether a decision vitiated by a breach of the rules of natural justice can be made good by a subsequent
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