CHANDANA KUMARA

Vs.

AIR VICE MARSHAL, SRI LANKA AIR FORCE AND OTHERS

COURT OF APPEAL
SAMAYAWARDHENA, J.
CA/WRIT/333/2015
FEBRUARY 14, MARCH 4, 2020

Writ of certiorari-Court Martial-Conviction for murder under section 296 of the Penal Code read with section 131(2) of the Air Force Act, No. 41 of 1949-Air Force Court Martial (General and District) Regulations 1952- Life imprisonment-Failure of every member of the Court Martial to give their opinion as to the finding-Failure to give reasons for the finding-Violation of natural justice-Applicability of the Evidence Ordinance in Court Martial proceedings-Court Martial and trial by jury-Judicial review of correctness as opposed to legality of the decision-Equal protection of the law

The petitioner was an aircraftman of the volunteer force of the Sri Lanka Air Force when he was convicted of murder by a General Court Martial under section 296 of the Penal Code read with section 131(2) of the Air Force Act. and sentenced to life imprisonment. The petitioner filed this application seeking to quash the said conviction and sentence by way of a writ of certiorari on three grounds: (a) the Court Martial had no jurisdiction to try the petitioner for the offence of murder, as he was not on active service at the time material to the incident; (b) the finding of the Court Martial is contrary to Air Force Court Martial Regulation No. 98 and therefore invalid; (c) failure to give reasons vitiates the finding of the Court Martial. After the argument, the first ground was abandoned.

Held:

1. The Court Martial is a competent court, which can inter alia impose a sentence of death or imprisonment.

2. The opinion of each member of the Court Martial as to the finding of guilt of the petitioner for murder was not given, either in open court or closed court. This is a grave violation of the mandatory provisions of Regulation 98 read with 175 of the Air Force Court Martial (General and District) Regulations. It is incurable and fatal to the conviction. On this ground alone, the finding of guilt of the petitioner for murder shall be quashed by a writ of certiorari.

3. Giving reasons for decisions is inherent in the justice system of any civilised society. It is embedded in it and inseparable from it. If a country is governed by the rule of law, reasons for decisions must be given. The absence of an express statutory requirement to this effect is no excuse.

4. Justice will not be done if it is not apparent to the parties why one has won and the other has lost. The giving of reasons increases public confidence in the decision-making process and the decision itself. Failure to give reasons for a decision suggests that the decision was not taken on a sound basis and is therefore arbitrary.

5. Although there was a tendency towards the view that neither the common law nor principles of natural justice require as a general rule that administrative tribunals or authorities give reasons for decisions, this line of thinking has long been condemned as a major drawback in the development of administrative law. Modern administrative law demands that administrative authorities give reasons for their decisions.

6. Natural justice is the essence of the law. The giving of reasons for decisions is an inherent element of natural justice. Failure to give reasons for a decision, like any other breach of natural justice, shall render the decision a nullity.

7. The first principle of natural justice is to hear both sides before making a decision. This is known as the audi alteram partem rule which runs across the board on the whole spectrumof the decision-making process as a golden thread, irrespective of whether the decision is by a regular court, quasi-judicial body, administrative tribunal or the like. Hearing both sides does not end the matter. After the hearing, the deciding authority shall give its decision. The decision shall not be a