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CA dismisses case against BASL

The Court of Appeal has dismissed an application filed by two petitioners against the Bar Association of Sri Lanka and seven others holding that the allegation of bias contained in the petition against the BASL was not borne out by evidence.The case concerned an inquiry into a complain by Petitioners against three Attorneys-at-Law.

The Bench comprised Justices Shiranee Tilakawardane (President of the Court of Appeal) and P. Wijeyaratne.

The Petitioners K.S.C. Fonseka and Lindamulage Venitia Fonseka of Rawathawatte Moratuwa has sought a Writ of Certiorari to quash the findings and report of the BASL inquiry into the conduct of the three attorneys .They have also sought a Writ of Mandamus to direct the BASL, its President and Secretary to cause to be conducted an impartial inquiry to be held in denovo. The respondents are the BASL, Ajantha Athokorale,President, B. Wijesinghe ,Secretary J.K. Liyanasuriya Chairman,Disciplinary Committee of the BASL T.S. Medahinna ,member Disciplinary Committee,Dr.Ranjit Fernando,Mahendra Amarasekera and W.K.G.Jayasekera Attorneys-at-Law.

Justice Tilakawardane in her judgement (with which the other judge agreed) inter alia stated:

Several objections were taken up by the Counsel appearing for the Respondents. The Bar Association has been made the 1st Respondent in the case even though the Bar Association is not a corporate body as is not a jurisdic person. In terms of Article 140 of the Constitution the Writ jurisdiction of this Court would be amenable to administrative bodies and judicial review contemplated in terms of Article 140 of the Constitution but such would not apply in terms of the facts and circumstances of this case, especially as the Bar Association of Sri Lanka is not a public for Administrative Authority within the meaning that was contemplated in Article 140 of the Constitution.

Similarly a writ of mandamus too could not be invoked in this case as the 1st Respondent is neither a public nor a statutory body. Accordingly the application of the Petitioners are misconceived in law.

Another matter that has to be considered in this case is the relevance of the judgement of the Supreme Court. The petitioners had complained to the Supreme Court and the rule bearing 9/2000 had issued against the Respondent Attorneys on this same issue. This rule was discharged before the Supreme Court upon the said Attorneys-at-Law agreeing to pay the disputed amount to the petitioners. In this sense, a finality was reached in regard to the complaint made to the Bar Association by the petitioners and the dispute was settled in terms of the judgement of the Supreme Court dated 25.3.2002 in SC Rule No. 9/2000.

The Judgement stated: "It has to be observed that the Chief Justice in terms of Section 44(4) had appointed a disciplinary committee out of the panel which were constituted by 15 members of the Bar Association of Sri Lanka and the matter was inquired into and the report was submitted. However as the matter was settled before the Supreme Court it is clear that the findings in SC Rule 9/2000 which was decided on 5.3.2002, (such Rule being issued in terms of Section 42(2) of the Judicature Act No. 2 of 1978) that this matter had been settled and it is clear that this settlement had been reflected in the findings of the aforesaid report.

What the petitioners seek to do is indirectly challenge the contents of the Supreme Court decision relating to SC Rule 9/2000. In these circumstances this court would not invoke its discretionary writ jurisdiction which would have the effect of directly or indirectly after the findings or proceedings in the Supreme Court. This is all the more so as the issues that are sought to be determined with regard to the Petitioners have already been determined and have been adjudicated upon and the findings/decisions arrived at by the Supreme Court.

The allegation of bias is not being supported by any evidence and this court sees no merit in such allegation specially in view of the fact that no other additional material has been formulated to support such inference of bias either in the pleadings or documents filed in this application nor has it been produced the annexures of documents to this application.

Accordingly this court sees no merit in the application and this application is dismissed with costs of Rs. 2,000.

Elmore Perera appeared for the petitioners.

N. R. M. Daluwatte, PC with Rohan Sahabandu appeared for the 2nd respondent. Sanjeewa Jayawardane appeared for the 6th Respondent.

Manohara R. de Silva appeared for the 7th Respondent.

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