K. S. S. JAILABDEEN, Appellant, and A. R. DANINA UMMA, Respondent

071-NLR-NLR-V-64-K.-S.-S.-JAILABDEEN-Appellant-and-A.-R.-DANINA-UMMA-Respondent.pdf


Jailabdeen v. Danina Umma
419
1982 Present:H. N. G. Fernando, J., and L. B. de Silva, J.
K.S. S. .JAILABDEEN, Appellant, and A. R. DANINA UMMA,
Respondent
S. C. 2jl9G2—Quazi Court, Colombo South, No. 626
Quazi-!—Appointment by Minister—TJnconstitutionality of such appointment—Quoziholds judicial office—Power of enforcement is not an essential requisite of, judicial power—Power of Legislature to create new tribunals—Right of appealconferred by statute—Right of appellant to question validity of the appointment,rc/( the persons constituting the tribunal—Muslim Marriage and Divorce Act[Cap. 115), ss. 12 (1), 14, 47, 48, 60, 62, 64, 65, 67—Bribery Act, s. 41—Constitution Order in Council, 1946, ss. 55, 88.
The office of Quazi is a judicial office, and the proper authority to makeappointments to such an office is the Judicial Service Commission as providedby section 55 of the Constitution Order in Council, and not the Minister asprovided by sections 12 (1) and 14 of the Muslim Marriage and Divorce Act.Accordingly, an order for maintenance mode under section 47 of the MuslimMarriage and Divorce Act by a person or persons who were appointed to suchoffice by the Minister and not by the Judicial Service Commission has no legalvalidity.
The establishment, by the Constitution Order in Council, of the JudicialService Commission, with exclusive power to appoint to judicial office, does not,however, limit in any way the power of Parliament to establish by legislationnew judicial tribunals with jurisdiction (whether exclusive or not) overparticularcharges or causes. Piyadasa v. Bribery Commissioner (1962) 64 N. L. R. 385,discussed.
i A tribunal can have judicial power even though it may lack the power toenforce its decisions.>'.'>• %'■
A •
The right of appeal from an order of the Board of Quazis, which is a rightexpressly conferred by statute (the Muslim M arriage and Divorce Act), cannotdebar the appellant from questioning the legal validity of the persons consti-tuting the tribunal. Don Anthony v. Bribery Commissioner (1962) 64 N. L. R. 93,discussed.
Appeal, under section 62 of the Muslim Marriage and Divorce Act,from an order of the Board of Quazis.
Ranganathan, with M. T. M. Sivardeen, for the Respondent-Appellant.
H. W. Jayawardene, Q.C., with M. S. M. Nazeem and E. St. N. I).Tillekeralne, for the Applicant-Respondent.
Cur. adv. wilt
420H. N. G-. FERNANDO, J.—Jailabdeen v. Danina Umma
December 17, 1962. H. N. G. Fernando, J.—
The Appellant is a person against whom an order was made by aQuazi under section 47 of the Muslim Marriage and Divorce Act (Cap.115) for the payment of maintenance to his wife and children, and whounsuccessfully appealed to the Board of Quazis under section 60 of theAct. From the order of the Board of Quazis he has, with the leave ofthis Court, preferred this appeal to the Supreme Court under section 62.
An important question of law was raised by counsel for the Appellantin the form of an argument on the same lines as that apparentlypresented in the very recent case of Piyadasa v. Bribery Commissioner x,namely that it was unconstitutional to confer on a Quazi, being a personholding a judicial office, the power to make orders binding on parties toproceedings taken before him. The form of both these arguments wassimilar to, although more extensive than, that put forward in the earliercase of Senadhira v. Bribery Commissioner21, namely that it was unconsti-tutional to empower a Bribery Tribunal to pass sentences on an accusedperson whom it has found guilty. While agreeing with the reasoning ofmy brothers Tambiah and Sri Skanda Rajah in the recent decision, Ithink with respect that the conclusion reached on that reasoning shouldhave received a different formulation, and I trust that the statement ofmy opinion will serve to clarify the issue rather than to confuse it. Whatwas actually decided was that “ the Bribery Tribunal has no jurisdictionto try and find the accused guilty of the offence of bribery (per Tambiah,
J.,) and that “ the Bribery Tribunal is an unconstitutional body ” (perSri Skanda. Rajah, J.).
In my opinion, the establishment by the Constitution of the JudicialService Commission, with exclusive power to appoint to judicial office,must not be construed as limiting in any way the power of Parliamentby legislation to establish new “ judicial officers ”, that is to say, newtribunals vested with judicial power. There is nothing illegal, in the senseof conflict with the Constitution, in a statute which establishes a newjudicial tribunal with jurisdiction (whether exclusive or not) overparticular charges or causes. Indeed the legislature might well considerit necessary in the public interest to constitute such tribunals, and one canthink of many reasons for the adoption of such a course, such as the needto secure quick disposal of matters considered to be deserving of specialpriority, or to appoint to such tribunals persons having special knowledgeor experience concerning the matters to be adjudged. Taking then theBribery Act itself, there would be no justification for a Court or a litigantto cavil at any of its provisions except such a provision as may be inconflict with the Constitution. The provision which does so is that(section 41) which, as amended in 1958, enables the Governor-Generalto appoint a panel from which the members of a Bribery Tribunal may;beconstituted. Those provisions of the Bribery Act which confer powersof adjudication and punishment on a Bribery Tribunal are in my opinion
1 (1962) 64 N. L. R. 385.
2 (1961) 63 N. L. R. 313.
H. N. G. FERNANDO, J.—Jailabdeen v. Danina Umma
421
perfectly valid. There is no provision in the Constitution restrictingthe establishment of judicial offices and it follows that a Bribery Tribunalto which persons are duly appointed in accordance vrith the proper law canlegally exercise all the powers which the Act confers upon such a tribunal.But since a tribunal having such powers is a “ judicial office ”, all thatI find unconstitutional in the Bribery Act is the power given to theGovernor-General to appoint the panel from which members of such atribunal have to be constituted. The objection thus goes not to legalvalidity of the tribunal itself, or to the exercise of judicial power by it,but rather to the right and authority of the persons constituting thetribunal to exercise the powers conferred by the Act. The convictionand sentence in Piyadasa’s case were bad in my opinion only on the groundthat the persons who constituted the particular tribunal were appointedto the panel by the Governor-General and not by the Judicial ServiceCommission, which is exclusively vested, by section 55 of the Constitution,with the power to appoint to judicial office.- Had section 41 of theBribery Act merely provided for the constitution of a panel, and madeno mention of the appointing authority, the section would not have beenin any way repugnant to the Constitution, despite the conferment ofjudicial power on the tribunals. Bor the purposes of the present appeal,therefore, the proper formulation of the question of law to be decided—aformulation which counsel for the Appellant readily endorsed and adopted—is whether the office of a Quazi is a judicial office within the meaningof the Constitution, and whether the particular Quazi who adjudicatedin this case, having been appointed by the Minister as Quazi undersection 67 read with section 14 of the Act and not by the Judicial ServiceCommission, he could lawfully exercise the judicial power conferred on aQuazi by the Act.
Eminent counsel who appeared for the Respondent had to concededuring his argument that the office of a Quazi is a judicial office, and thataccordingly an appointment to such an office made by any person otherthan the Judicial Service Commission has no legal validity. But sincethe question is one of considerable importance, it is well that reasonsshould be stated to support the correctness of this proposition.
The first Ordinance which set up special tribunals to deal withquestions of the marriages and divorces of Muslims, with applicationsfor maintenance of Muslim wives and their children, and with otherconnected matters, was Ordinance No. 27 of 1929 (Cap. 99 of the 1938Edition). Section 4 of that Ordinance enabled the Governor to appointany suitable male Muslim to be a Kathi and Section 5 enabled him toappoint a Board of Kathis. Section 15 of the Ordinance, read with therules in the 3rd Schedule, gave a Kathi jurisdiction to entertain anapplication by a Muslim wife for a divorce, and section 21 gave a furtherjurisdiction to a Kathi to adjudicate upon claims for the payment ofMahr as well as for the maintenance of wives and children. From anorder of a Kathi in such a case an appeal lay to the Board of Kathis, andthereafter, with leave, to the Supreme Court.
422
H. N. G. FERNANDO, J.—Jailabdccn v. Danina Zimina
With the enactment of the new Constitution in 1946, Article SS enabledthe Governor
“…. to make such provision as appears to him necessary or
expedient, in consequence of the provisions of this Order, for modifying,adding to or adapting the provisions of any written law which refer inwhatever terms to the Governor, …. a Minister, …. or
a public officer, or otherwise for bringing the provisions of any writtenlaw’ into accord with the provisions of this Order or for giving effectthereto. ”
i
In purported pursuance of this power, the Governor by Proclamationunder Article 88 substituted the Minister for himself in those provisionsof sections 4 and 5 of the Ordinance of 1929 which dealt with the appoint-ment of Kathis and the Board of Kathis. Belying upon the order dated
10. 62 made by three Judges in the Trial-at-Bar No. 1 of 19621, counselargued that the validity of the Governor’s act in amending those sections,and in consequence the validity of the Minister’s power to make, theappointment, cannot be questioned. I understand from my brotherde Silva (who was a member of the Court) that there was in that case nosubmission that the Proclamation under Section 8S of the Constitutioncontravened any provision of the Constitution itself when it substitutedthe Minister of Justice for the Governor in the relevant enactment,namely Section 440A of the Criminal Procedure Code. But in the presentcase, it is necessary to state my opinion that the power given by Section88 did not enable the Governor to modify an enactment in such a mannerthat the enactment as so modified would conflict with any of the expressprovisions which are enacted in the Constitution itself. Beference to. onepossible situation would sufficiently explain my reasons. Let me take thecase of the appointment of a District Judge or Magistrate. The officersbeing unquestionably judicial officers, the power of appointment, equallyunquestionably, belonged solely, under the Constitution, to the JudicialService Commission. But at the time of the enactment of the Constitu-tion there was express provision in section 56 of the Courts Ordinance forthe appointment of District Judges and Magistrates by the Governor.In fact the action very properly taken with regard to that section inthe Proclamation under Article 88 was to delete the section from theCourts Ordinance, and thus to eliminate any possible conflict withsection 55 of the Constitution. But what if, instead of deleting it, theGovernor had either left section 56 untouched, or else substituted therein,a provision empowering a Minister to appoint District Judges andMagistrates ? I cannot conceive that either of these courses could havebeen held to be valid, for either course would quite obviously havepurported to authorise appointments otherwise than by the JudicialService Commission. Whether amended or not by the Governor, it seemsto me that any provision of the pre-existing law which conflicted with anexpress fundamental provision of the Constitution must give way to the
1 (1962} 64 N» L. R. 313.
H. N. G. FERNANDO, J.—Jailabdeen v. Danina Vmma
423
latter provision. The power of the Governor was to make adaptations ormodifications necessary in consequence of the Order-in-Council so as tobring laws into accord with the Order-in-Council. That power cannot inmy view be construed to include a power to make adaptations manifestlyin conflict with the Constitution itself. I think therefore that if theoffice of Quazi is indeed a Judicial office within the meaning of the Cons-titution, the Proclamation must be held to have been invalid in so faras it had the effect of empowering a Minister to make appointments tothat office.
The present Act, though passed in 1954, merely re-enacted the provisionsof the former Ordinance (as amended by the Governor), in the matter ofthe power to appoint to the office which in the Act was redesignated“ Quazi But even if that were not so, and if the Legislature must beregarded as having deliberately conferred the power of appointment onthe Minister, such conferment would again be invalid if the office must beheld to be a judicial office.
It will be seen that the purpose and effect of the 1929 Ordinance ascontinued by the 1954 Act was to take away from the ordinary Courts ajurisdiction previously enjoyed by those Courts, and to confer thatjurisdiction on Quazis. Indeed there is express provision in section 48 ofthe Act that the jurisdiction exercisable by a Quazi under section 47shall be exclusive and that any matter falling within that jurisdictionshall not be tried by any other Court. What is said to be the jurisdictionexercised by the Quazi in the present case is the jurisdiction to order ahusband to pay maintenance for his wife and children. Prior to theenactment of the special legislation in 1929, that jurisdiction was enjoyedby the Magistrates Courts, and in exercising it a Magistrate was clearlyexercising judicial power, for he had to administer the Common Law underwhich a person had the liability to maintain a wife and children ; uponclaims being made for maintenance the Magistrate had to decide upon thevalidity of alleged marriages and upon questions of paternity; and to makeenforceable orders ; these are all matters involving the exercise of judicialpower. Can it be said that the power conferred by section 47 (1) (i) on aQuazi, to make a declaration of nullity of marriage, is not a judicial poweror that the power conferred by the Third Schedule to the Act read withsection 28, to grant divorces, is not a judicial power? Having regard tothese considerations, there is no merit in the argument that when theLegislature set up these separate tribunals to adjudicate upon claims fordivorce or nullity and claims for maintenance of Muslim wives and children,it was merely assigning those claims for determination by administrativebodies.
One matter needs some clarification at this stage. Sections 12 (1)and 14 of the Act (Cap.115) authorise the Minister to appoint, respectively,a Quazi and a special Quazi. Each of these provisions contemplates twodifferent acts, firstly the establishment of an office, and secondly anappointment to the office. In other words, two decisions have to bemade by the Minister in each case, firstly whether to establish the office,
424
H. N. G. FERNANDO, J.'—Jailabdeen v. Danina Umn
and secondly whom to appoint to it. It was clearly intra vires for the Actto entrust the performance of the first of these acts to a Minister, for thatis a purely executive act, just as the act of setting up a new Magistrate’sCourt or a new Rural Court. It is only with respect to the second act,namely the act of appointment to the office, that the question ariseswhether the act of appointment is valid as being one not performed by
the Judicial Service Commission.;
* 1
1 /
An argument upon which counsel for the Respondent relied at one stagewas that a Quazi had no power to enforce his own order, and that forthis reason his is not a judicial office. Some support for this contentioncan be found in the judgment of Sansoni, J., in Senadhira v. BriberyCommissioner1 where, in citing from the Australian judgment in thecase of Waterside Workers Federation of Australia v Alexander {J. W.)Ltd.2, he italicised the words “enforcement ” and “ enforce ”. It wouldappear from the judgment of Sansoni, J., that he may have regarded thispower of enforcement as being an essential requisite of the judicial power.But there is a subsequent judgment of the High Court of .Australia(Queen v. Davison)3 in which the essentiality of the power of enforcementwas fully considered, and X would with respect adopt the followingobservations from that judgment :
“ It may b.e said of each of these various elements that it is entirelylacking from many proceedings falling within the jurisdiction of variouscourts of justice in English Law. In the administration of assetsor of trusts the Court of Chancery made many orders involving noUs inter partes, no adjudication of rights and sometimes self-executing.Orders relating to the maintenance and guardianship of infants, theexercise of a power of sale by way of family arrangement and theconsent to the marriage of a ward of court are all conceived as formingpart of the exercise of judicial power as understood in the tradition ofEnglish Law. Recently Courts have been called upon to administerenemy property. In England declarations of legitimacy may be made.To wind up companies may involve many orders that have none ofthe elements upon which these definitions insist. Yet all these thingshave long fallen to the courts of justice. To grant probate of a willor letters of administration is a judicial function and could not beexcluded from the judicial power of a country governed by English Law.Again the enforcement of a judgment or judicial decree by the courtitself cannot be a necessary attribute of a court exercising judicialpower. The power to award execution might not belong to a tribunal,and yet its determinations might clearly amount to an exercise of thejudicial power. Indeed it may be said that an order of court of pettysessions for the payment of money is an example. Eor warrants forthe execution of such an order are granted by a justice of the peace asan independent administrative act. ” (At page 368).
1 (1961) 63 iV. L. R. at page 319.
• {1954) 90 G. L. R. 353.
* (1918) 25 C. L. R. 434.
H. N. G. FERNANDO, J.—JaUabdeen v. Danina Umma
425
In this connection it is interesting to find that the Privy Council in acase from Ceylon {Aitken Spence <Ss Co. v. Fernando *) held in 1903 thatproceedings before an arbitrator upon reference by a District Courtunder the Civil Procedure Code are judicial proceedings, although, suchan arbitrator has clearly no power to enforce his award. I have had theadvantage in this connection of consulting the references and citationscontained in the judgment of my brother Tambiah in Piyadasa v.Bribery Commissioner, and I agree with his opinion that the definitionof judicial power given by Griffiths, C.J., in Huddart, Parker & Co. v.Moorhead2, which was subsequently approved in the Privy Councilby Viscount Simonds, is most acceptable, and that a tribunal can havejudicial power even though it may lack the power to enforce its decisions.In any event a Quazi appointed under the Act now under considerationdoes have a power to enforce his orders; there is provision in sections64 and 65 of the Act for a Quazi to certify to a Magistrate’s Court theamount due under his order, the certificate having the automatic effectthat the Magistrate will issue process for the recovery of the sum duein the same manner as a fine.
Por the reasons above stated, I would hold that the office of a Quaziis a judicial office and that under the Constitution the proper authorityto make appointments to such an office is the Judicial Service Commissionas provided by the Constitution, and not the Minister as provided by theAct.
The reasons which have led me to the opinion just stated axe equallyapplicable to the Board of Quazis from whom this appeal is taken. Thisbody, which has jurisdiction on appeals from orders of Quazis, is equallya judicial body. Its members not having been appointed by the JudicialService Commission, they have no authority to exercise the judicialpowers conferred by the Act.
Counsel for the Respondent also aTgued that since the right of appealfrom an order of the Board of Quazis is a right conferred by the Act itself,it is not open to an appellant to question the legality of the tribunalfrom which he appeals. I should refer in this connection to DonAnthony v. Bribery Commissioner 3 where both the Court (of which Iwas a member), and counsel, assumed that a questioning of the power of aBribery Tribunal to adjudicate upon a charge of bribery involved aquestioning of the validity of the entire Act under which the tribunalswere established. It appears to me now that it was through a miscon-ception that the matter came to be regarded in that way. I have ex-plained at the commencement of this judgment my reasons for the opinionthat the proper challenge in a case under the Bribery Act is not to be direct-ed agairst the legal validity of the tribunal itself but rather against thevalidity of the appointment of the persons who in the particular casefunctioned as members of the tribunal. Although therefore counsel forthe Appellant in Don Anthony's case thought that he was challenging the1 [1903) A. C. ZOO.8 [1909) S C. L. R. 330 al 3b7.
3 [1902) 64 N. L. R. 93.
42GH. N. G. FERNANDO, J.—Jailabdccn v. Danina Umma
validity of the entire legislation-, or rather that he had to make such awholesale challenge, he could well have been content to challenge merelythe constitution of the particular tribunal which tried the case, on thequite narrow ground that the persons functioning as the “ judges ” onthat tribunal had not. been duly appointed to the judicial office.
»
With reference to Don Anthony's case, I think I should also state thatthe decision of the Privy Council in the Indian case King-Emperor v.Benoari Lai Sarnia,1 was perhaps too easily regarded as being applicable.In the Indian case, there was truly a challenge of the entire legislation,the object of which was to constitute certain special courts. The attackagainst the tribunal was that it was illegal to establish it ; if it was not avalid court, then its judge was “ in the same position as a private personwho took it upon himself to conduct a trial of the appellants and to sentencethem to imprisonment without any authority at all ”, a situation in whichthe proper remedy would be “ the remedy of release by process in thenature of habeas corpus. ” (Per Viscount Simon, L. C.). But inrelation to a Bribery Tribunal composed of persons appointed by theGovernor-General it is not the legal validity of the Tribunal which hasto be attacked, but rather the validity of the appointments of the personscomposing it. I would for the reasons just stated over-rule the objectionthat the present appellant is not entitled in this appeal to raise the questionof law previously discussed. Moreover, the legislation which wasimpugned in the latter case expressly excluded the right of appeal, andwhat was invoked by the Appellant was the revisionary power conferredon the High Court by the Criminal Procedure Code, and not a right ofappeal. The opinion of the Privy Council, that such a revisionary powercould not be invoked or exercised against a body which was not, in theAppellant’s contention, a duly constituted court, may not, I now think,be relevant to a consideration of the Bribery Act or of the MuslimMarriage and Divorce Act, in each of which there is conferred an expressright of appeal to this Court from the decisions of the respective tribunals.
I well realise the difficulty and inconvenience which can result from a. decision of this Court that appointments by the Minister to the officeof Quazi and to the Board of Quazis are invalid and ultra vires theConstitution ; but I feel compelled after anxious consideration to reachthat decision.
The appeal is allowed, and the order appealed from is quashed. Therewill be no order as to costs
L. B. de Silva, J.—I agree.
Appeal allowed.
* (1045) A. C. 14.