Don Anthony V. Goonesekera

1964 Present: Sri Skanda Rajah, J., and Alles, J.

M. DON ANTHONY, Petitioner, and S. S. J. GOONESEKERA
 and two others, Respondents

S. C. 222 of 1962-Application for a Writ of Certiorari

Certiorari-Bribery Tribunal-Unconstitutional appointment of members-Invalidity of entire proceedings before such tribunal-Effect of the invalidity-Ceylon, (Constitution) Order in Council, s. 55.

The petitioner had been convicted by a Bribery Tribunal and sentenced to pay a fine. He appealed and, on 5th April 1962, the Supreme Court, purporting to follow Senadhira v. The Bribery Commissioner (63 N. L. R. 313), set aside only the sentence of fine imposed on him.

Held, that the petitioner was entitled, by way of Certiorari, to have the entire proceedings, including the conviction, quashed on the ground that the Bribery Tribunal, inasmuch as it consisted of members who had not been appointed by the Judicial Service Commission in terms of section 55 of the Ceylon (Constitution) Order in Council, had no jurisdiction to hear and determine the case against the petitioner.

         APPLICATION for a writ of Certiorari.

                          M. Tiruchelvam, Q.C., with S. C. Crossette- Thambiah and K. Thevarajah, for the petitioner.

                           R. S. Wanasundere, Crown Counsel, as amicus curiae.

Cur. adv. vult.

 October 2, 1964. SRI SKANDA RAJAH, J.-

This application for a writ of Certiorari came to be made under the following circumstances:-

The petitioner Don Anthony was prosecuted by the Bribery Commissioner before a Bribery Tribunal consisting of the first three respondents, who were not appointed by the Judicial Service Commission. The Bribery Tribunal recorded evidence on several dates, convicted the petitioner of the two charges of bribery in respect of which he stood his trial and sentenced him to pay a fine of Rs. 1,000. He appealed and, on 5.4.1962, this Court purporting to follow Senadhira v. The Bribery Commissioner1[(1961)63N.L.R.313], set aside the sentence of fine imposed on him : Don Anthony v. The Bribery Commissioner2[(1962) 64 N. L. R. 93.]. Thereupon, on 17.5.1962, the petitioner filed this application alleging that the Bribery Tribunal:-

              "(i) had no jurisdiction whatsoever to hear the case against the petitioner to make an order on the charges framed against him and to impose a sentence on the petitioner ;

                "(ii) that the proceedings before the said Tribunal are coram non judice;

" (iii) that their findings are null and, void and of no effect in law,"

and praying that the findings and order of the said Bribery Tribunal be quashed.

It is pertinent to examine the following decisions :

                 (1) Senadhira v. The Bribery Commissioner (supra);

                 (2) Don Anthony v. The Bribery Commissioner (supra);

                 (3) Piyadasa v. The Bribery Commissioner1[(1962) 64 N. L. R. 385.];

                (4) Ranasinghe v. The Bribery Commissioner 2 [ (1962) 64 N. L. R. 449.]; and

                (5) The Bribery Commissioner v. Ranasinghe3[(1964) 66 N. L. R. 73; 66 C. L. W. 1.].

  In both Senadhira (supra) and Don Anthony (supra) Crown Counsel took the same preliminary objection, which appears in the following passage in the judgment of Sansoni, J., at 314 of 63 N. L. R.:-

" When the hearing of the appeal began, Mr. Pullenayegum raised a preliminary objection to the appeal being heard, apparently because he was under the impression that the appellants were challenging the validity if the entire Bribery Act. Basing his argument on the case of The King Emperor v. Benoari Lal Sarma 4[(1945) A. C. 14.] he submitted that where an Act is attacked as invalid, the right of appeal conferred by the Act cannot be exercised, and some remedy other than appeal should be sought. Mr. H. V. Perera, in reply to this objection, said that he was not challenging the validity of the whole Act,

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