An officer cadet following a course at Kotelawala Defence Academy appealed for a writ of certiorari as he had been dismissed from the academy for alleged ragging. But the alleged perpetrator was someone else, and the cadet was being charged for aiding and abetting. 
The judgement in the Court of Appeal case (Wicremasinghe v. Chandrananda De Silva, Secretary Ministry of Defence and Others - SLR - 333, Vol 2 of 2001 [2001] LKCA 20; (2001) 2 Sri LR 333 (April 6, 2001)) excerpted below, states:
“This is an application by the petitioner, who had been undergoing training as an officer cadet at the Sir John Kotelawala Defence Academy, for an order of certiorari quashing his expulsion from the said academy as per the certificate of discharge (P1) dated 10.08.1998 consequent upon a finding of guilt of ragging and repeatedly harassing two trainee cadets, named Olupeliyawa and Rajapaksa, of the same academy.”
Even though two aspects of the discharge had been raised by the counsel i.e: proportionality of the punishment considering what the cadet is alleged to have done, and the fact that the two victims of the ragging incident had not given evidence, the judges of the Court of Appeal of their own accord considered one more important aspect — the failure of the Court of Inquiry to give reasons for the discharge.
The judgement of the Court of Appeal states:
“It is to be observed that although the Court of Inquiry had found the petitioner guilty of (in the language of the court of inquiry itself) having ‘aided and abetted Cdt.
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| John Kotelawala Defence University (KDU) |
Piyasena in the various acts of ragging perpetrated on 2194 Svc. Cdt. R.M.N. Rajapaksa’ and on Cdt. Olupeliyawa, no reasons had been given by the Court of Inquiry for such a finding. It is indeed highly desirable that reasons are given for a finding because the availability of reasons will tend to support the idea, not only that justice had been done or meted out but that justice had been done on a rational basis”.
Is it imperative however for a Court of Inquiry to give reasons in certain instances, this being one of them, the Appeal Court judges opined? Surprisingly the judgement took recourse to citing some English cases with this regard — particularly ones in which the higher tenets of rights-based jurisprudence came into play. Though it was concluded that there is no imperative to give reasons all the time, it was stated in judgement that there was a need to give reasons when matters of considerable import such as issues of personal liberty etc. were being considered by the Court.
Having cited the relevant cases the Court noted in judgement:
“It cannot be gainsaid that the decision to remove or discharge the petitioner from the Kotelawala Defence Academy will, for certain, blast the petitioner’s career prospects and thereby his livelihood as well. And what is worse, his career or livelihood is nipped in the bud, so to say, or destroyed at the earliest stage conceivable. In an eloquent judicial pronouncement on what is, sometime, considered to be another aspect of the requirement of natural justice i.e. the right to legal representation, Lord Denning had expressed the view that ‘when a man’s reputation or livelihood is at stake, he not only has the right to speak by his own mouth. He also has the right to speak by counsel or solicitor.’”
Court was at pains to observe that even though there was no mandatory duty to give reasons for the Court of Inquiry decision, that it was the judicial trend to do so. However when someone’s job hangs on the balance as a result of a decision of the Court of Inquiry, then reasons should be given as a matter of right. It was also pointed out that in this case the reputation of the petitioner who was discharged was also put into question.
Two noteworthy aspects of the Appeal Court judgement were that Lord Denning was cited more than once in the judgement, and that the somewhat queasy position was taken by Court that ragging was after all done “in the Sri Lankan context”, and would have been considered the “standard norm” in the Sri Lankan context. This part was introduced to the written judgement, moreover, in lighter vein — the judges observed, even though subsequent Sri Lankan jurors perusing the case might state that there is nothing that’s humorous about ragging.
The exact words in judgement, with the English case being referred to, were:
“…Lord Denning ruled that the decision could not stand - one of the reasons being that the punishment of depriving the man of his livelihood was out of all proportion to the original incident which, according to Sri Lankan ways and ways of doing things, would have been the recognised standard norm - to put it in a humorous vein.” Lord Denning was cited in the context of the case that had been cited, (R vs. Barnsley Metropolitan Borough Council, Exparte Hook - 1976 3 All ER 452.).”
Even though Kotelawala Defence Academy Regulation No. 29 prescribed a sliding scale of punishment for various offences, it appeared that the Court of Inquiry had not considered that scale particularly in the context that other cadets had been deemed to have ‘supported’ the raggers whereas the Petitioner had been deemed to have ‘aided and abetted them’, begging the question ‘what’s the difference between aiding and abetting’ and supporting?
In conclusion the judgement held:
“The punishment prescribed for misconduct on the part of a cadet of the academy, is graded varying in severity from dismissal to a mere admonition. In fact, the above regulation contemplates seven kinds of punishment on a sliding scale. The fact that court of inquiry itself had found the petitioner guilty of only ‘aiding and abetting’ assumes some significance, in my view, in the matter of punishment because the recommended punishment (by same Court of Inquiry) for the four other cadets who had been found guilty (at the same inquiry) of having ‘supported’ cadet Piyasena in harassing Olupeliyawa and Rajapaksa, had only been ‘relegation of commissioning for one year’ which, I think, means that the warrant conferring authority on them (the said four cadets) will be delayed or withheld for one year. But only a very thin partition, if at all, viewing the matter pragmatically, would divide “aiding and abetting” from “supporting” which also means to give help or aid.
it is unclear as to why the court of Inquiry selected for the petitioner the most rigorous out of the seven punishments prescribed by the relevant regulation;
the ultimate punishment which was imposed on the petitioner gravely affected his future and virtually destroyed all his prospects or what he was to expect in life.”
The writ application was allowed and the cadet was granted a writ of mandamus that would allow him to sit for all requisite examinations that would enable him to complete the course.
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