IN THE MATTER OF AN APPLICATION REV. SUMANA THERO TO BE ADMITTED AND ENROL

055-SLLR-SLLR-2005-V-3-IN-THE-MATTER-OF-AN-APPLICATION-REV.-SUMANA-THERO-TO-BE-ADMITTED-AND-ENROL.pdf


CA In the matter of an Application by Rev. Sumana Thero to be admitted and 365
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IN THE MATTER OF AN APPLICATION BY REV.SUMANA THERO TO BE ADMITTED AND ENROLLED AS ANATTORNEY-AT-LAW
Supreme Court.
Samarakoon CJ.
Samarawickrama, J.
Walpita, J.
Gunasekera, J.
Wanasundara, J.
Enrolment Application No. A6851.
March 17, 20,21,1978.
Admission-Enrolment as an Attorney-at-Law by a Buddhist Priest-Administration of Justice Law (AJL) No. 44 of 1973-Section 15(1)(e),Section 33 -Is there a rule of Vinaya Pitaka prohibiting a Bhikku frompracticing the profession? – Are these rules purely of ecclesiasticalnature?- Constitution -Section 6, 18(1)(d) – Is there incompatibility ofthe two vocations? – Is it morally reprehensible? – Does Section 6 overridethe effect of Section 33 (AJL) ?
Reverend Sumana Thero who had obtained the necessary qualificationsto be admitted to the Bar made an application to be admitted and enrolledas an Attorney-at-Law to the Supreme Court. The question arose, whetherhe could be admitted and enrolled.'
HELD : Samarakoon CJ, with Samarawickrama. J, Walpita. J. andGunasekera, J. agreeing –
The Vinaya Pitaka containing the rules and conduct of Bhikkusare of a purely ecclesiastical nature. This Court has constantlyheld that, such matters are outside the pale of the civil law andcannot be entertained as legal disputes in Civil Courts.
Even if the Vinaya Rules have become and now have the force ofcustomary law of the land and therefore enforceable, the
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statements of the two Mahanayakas which is the only reliableevidence state that there is no such rule in the Vinaya. For aRule to have a force of law by custom there must be certaintyand on the material before Court such certainty is not shown.
PerNeville Samarakoon, CJ.
“To say that the rules laid down by the Buddha for the discipline andpersonal conduct of his disciples, is enforceable through Civil Courts bylaymen as customary law, is abhorrent and should not rightly beentertained in any Court’’.
Per Neville Samarakoon, CJ.
“We must in no way be understood to condone the proposed action ofthe applicant. We in the civil Courts are only concerned with the civilrights and duties and I can see nothing in the civil law which disentitlesthe applicant to be admitted and enrolled as an Attorney of this Courtand we are powerless to prevent it.
Section 15(1 )(e) of theAJL permits the Supreme Court with theconcurrence of the Minister to make rules for the admission,enrolment, supervision and removal of Attorneys-at-Law. NoRule lias been made under this section debarring a monk fromapplying to be enrolled as an Attorney-at-Law.
How much protection should be afforded under Section 6 of theConstitution (1972) is a matter of policy for the State actingthrough the National State Assembly. In what manner and whenare matters within the power of the State exercised through theenactment of legislation. Courts neither lay down policy or makeLaw. Courts function is only to interpret and administer laws madeby the legislature not to make Law.
Wanasundara, J. (dissenting)
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HELD:That a monks life, as ordained by the Buddha, in its pure form, isincompatible with lay life would be apparent to anyone even havinga little acquaintance with the Dharhma. The institution of theSangha was established by the Buddha as a haven for thosewho wish to get away from lay life and who need the optimumconditions for pursuing the arduos life of virtuous meditation andwisdom demanded by the teaching. A person who enters theorder should be mindful of the change of status and recall thisdifference as often as possible.
The application of Section 6 (1972 Constitution) arises this way,the State is enjoined to protect and foster Buddhism. When amonk is enrolled by us as an attorney, this determination by usas judges places a seal of approval on an act which is said to beviolative of the Dhamma Vinaya. It is not necessary that somespecific tenet of the Vinaya should be transgressed; even asignificant deviation from the spirit of the religion may suffice if itcould be said to endanger the teaching.
PerWanasundara, J.
“In so far as the legal position is concerned it is my view that anydetermination or worsening of the prevailing state of affairs of anysignificance would attract the protective provisions of Section 6 of theConstitution.
The application must be refused on one or more of the followinggrounds :
Ground of incompatibility of the two vocations
Monk has disturbed the moral sense of a section of thepublic
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Violating of the Vinaya Rules
He has not satisfied Court that his confirming to lead the lifeof a Monk would be no impediment to his practicing as alawyer.
Application of Section 6 of the Constitution (1972)
Cases Referred toRatnapala Unnanse vs Appuhamy 4 NLR 167 at 169
Saranankara Unnanse vs. Ratnajothi Unnanse 20N.L.R. 383at 401
Sumanagatta Unnanse vs. Sobitha Unnanse 3 SCC 253
Marshall’s Judgments pages 657 and 658
Aysa Umma vs. Sago Abdul Lebbe 1863 and 240
Perera v. Moonasinghe 27 NLR 76 and 79i 7.. InreS 1969(2) W.L.R. 708
8. A-G of Gambia v. N'Jie (1961) 2 AER 504• 9. By petition from Antigua 12 E.R. 504
Julius vs. Bishop of Oxford (1880) 5AC 214
Ex Parte Inahoro 1963 2 QB455
InReShuters 1960 4 C.W.R. 370
In re Moonasinghe 1917 4 CWR 370
In the Matter of an Application of Seneviratne to be admittedan advocate 30 NLR 299
In re Brito 43 NLR 529
InreWeare (1893) 2 Q.B. 439
Dharmavisudithi vs. Dhammadassi Thero 57 NLR 469
Dammaratna Unnanse vs. Sumangala Unnanse 14 NLR 409
Shelly vs. Kraemer 334 U.S. 1
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Barrows vs. Jackson 346 U.S. 249
AysaOemma vs. Sago Abdul Lebbetf 863-68)
Davarakkita vs. Dharmaratana 21 NLR 255
Neisaemmah vs. Sinnathamby 36 NLR 375
Ceylon Workers’Congress vs. Superintendent Beragala Estate76 NLR 1
Solicitor General vs. Jayawickrama 53 NLR 320
Prince Gunasekera with L.V.R. Fernando, S.S. Wijeratne, ParakramaRanasinghe and Sarath Wijesinghe for the appellant.
H.W. Jayawardane QC with Nimal Senanayake, Desmond Fernando,Miss S.M. Senaratne and N. Jayamanne for the Bar Association of SriLanka (on notice)
Eric Amerasinghe with C.D.S. Siriwardane, N.S.A. Gunatilleke, M.B.Peramune and Miss. K.D. Meddagoda for the Colombo YMBA.
Dr. K.D.P. Wickremasinghe with D.H. Balachandra and JayatissaHerath for the ACBC and Buddhist Theosophical Society.
Shiva Pasupathi Hon. Attorney General with K.M.M.B. KulatungaAdditional SC and D.C. Jayasuriya SC for the State.
PR. Wickremasinghe-Member Buddhist Advisory Board, Ministry ofCultural Affairs.
D.S.R. Rajapakse with K.M.P. Rajaratna and Stanley Rajapaksefor 7mparty noticed.
WANASUNDARA, J. (dissenting)
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12th July, 1978SAMARAKOON, C. J.
Reverend Nakulugamuwa Sumana Thero, a member of the SriKalyanawansa Maha Nikaya has made an application to this Court to beadmitted and enrolled as an Attorney-at-Law of the Supreme Court, anunprecedented event in the history of Sri Lanka. In doing so he hasroused a store of protests. Lay Buddhists have lodged objection, anunprecedented event in this court. Reverend Sumana’s application wasreceived by the Registrar of this Court on 23-02-1978. The paperssubmitted by him disclose that he is a graduate of the University of SriLanka being a Bachelor of Laws. He has obtained the necessary academicqualifications to be admitted to the Bar. To his application are annexedtwo certificates from Senior Attorneys-at-Law testifying to the fact that heis a person of good character. He therefore claims that he has satisfiedthe provisions of section 33 of the Administration of Justice Law No. 44of 1973 which reads as follows: –
“The Supreme Court may admit and enrol as attorneys-at-law personsof good repute and of competent knowledge and ability."
In view of the importance of the matter, the spate of protests bothwithin and without this Court, and the fact that this was the first of itskind in the annals of our Courts, I referred this for decision by a Benchcomprising five Judges of the Supreme Court. I also caused notice toissue to all who filed objections, to the Bar Association of Sri Lanka andto the Attorney-General. The Bar Association and the Attorney-Generalvery kindly appeared and assisted this court. At the commencement ofthe hearing on 17th March, Counsel for the Colombo Young Men’s BuddhistAssociation (hereinafter referred to as the Colombo Y.M.B.A.) Counselfor the All Ceylon Buddhist Congress (hereinafter referred to as theA.C.B.C.) and the Buddhist Theosophical Society (hereinafter referred toas the B.T.S.) and P.B. Wickramasuriya (objector) all stated that they donot contest the facts set out in documents filed for the purposes of section
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33 of the Administration of Justice Law, No. 44 of 1973 and accepted thefact that the applicant was competent, qualified and that he was of goodrepute. On the second day of hearing one D.M. Guneratne, anotherobjector, presented himself in Court and Counsel appearing for himmaintained inter alia that the applicant was not of good repute for reasonswhich I shall refer to later. The applicant filed an affidavit together withother documents three of which were affidavits – one sworn to by'the'Reverend Rangoda Dhammasena Maha Nayaka Thero Mahanayaka ofthe Amarapura Nikaya, another sworn to by the Reverend DevinuwaraAmarasiri Mahanayaka of the Sri Kalyanawansa Maha Nikaya (the Nikayato which the applicant belongs) and a third sworn to by Dr. W. S.Karunaratne Professor of Buddhist Philosophy of the University of SriLanka. All three of them testify to the fact that a Bikkhu who is admitted,enrolled, and who practices the profession of an Attorney-at-Law doesnot contravene any of the Disciplinary Codes of the Vinaya Pitaka. Theobjections were of a four fold nature and are as follows: –
That the applicant was not a person of good repute and thereforenot a fit and proper person to be admitted and enrolled.
That the applicant was acting in contravention of the VinayaPitaka and therefore, in the larger interests of Buddhism, thiscourt in the exercise of its discretion, should refuse to admit andenrol him.
That the rules of the Vinaya Pitaka had acquired the force ofcustomary law and therefore this court could not admit and enrolthe applicant.
That by reason of the fact that by section 6 of the Constitutionof Sri Lanka the Republic had undertaken to protect and fosterBuddhism this court cannot admit and enrol the applicant.
I shall deal with each of these points but at the outset I desire tostate that in view of the opinion I have formed on other matters it is not
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necessary to consider the learned arguments addressed to us as towhether the word “May” in section 33 quoted above is indicative of adiscretion or whether it is equivalent to “shall" and therefore obligatory,other things being equal, for this court to admit and enrol the applicant.Section 15(1 )(e) of the Administration of Justice law permits this courtwith the concurrence of the Minister to make rules for “the admission,enrolment, suspension and removal of Attorneys-at-Law”. They must bepublished in the Gazette (section 15(2)) and placed before the NationalState Assembly for approval. If not so approved they shall be deemed tobe rescinded (section 15(3)). Some rules have been made under thissection and published in Gazette No. 115/4 of 12-02-1974 and GazetteNo. 95/5 of 23-01-1974. But these do not contain rules relevant tomatters now under consideration. Suffice it to say that no rule has beenmade under this section debarring a monk from applying to be enrolledas an Attorney-at-Law.
Counsel for D. M. Gunaratne (objector) seething with indignation,submitted that the applicant was not a person of “good repute”, becauseat the time he robed himself he represented to the Buddhists that he hasrenounced the world and would live “according to a certain code of ethics”,but he was now deceiving the people by his conduct. Counsel went sofar as to say that the Vinaya Pitaka does not permit a monk to “followlegal studies”. The burden of his song was that the applicant while beinga monk was seeking to have the best of both worlds and was therebyliving a lie. Such a person was not of good repute within the meaning ofsection 33 of the Administration of Justice Law. Counsel did not referus to any particular rule of the Vinaya which prohibited the study of lawor the practice of it. Indeed those whose opinion matters, and who havethe power to examine the conduct of the Bikku concerned, have saidthat he is doing nothing wrong in applying to be a lawyer. Further it isonly if an applicant’s reputation is such that he could be said to be guiltyof moral turpitude, that he could be refused admission. I trust that theapplicant will as a follower of the Buddha forgive counsel for the severestrictures passed on him. Being a Buddhist himself, he was carriedaway by his emotions. I reject the contention that the applicant is not aperson of good repute.
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Counsel for the Colombo Y.M.B.A. and Counsel for the A.C.B.C. andB.T.S. both contended that no Bhikkhu can practice as a lawyer withoutviolating his religious precepts. They say that the Bhikkhu’s way of lifeand the Code of Conduct to which he is subject are incompatible withthose of an Attorney-at-Law and that the affirmation of an Attorney-at-Law violates the affirmation made by a Bhikku at the time of robing. Inshort, that when the applicant became a Bhikku, he disqualified himselffrom being a lawyer. Therefore they state this court, in the exercise ofdiscretion it has under section33 of the Administration of Justice Law,should refuse to admit and enrol him. The Code of conduct referred to byCounsel is the Vinaya Pitaka. Counsel for the objectors further contestedthat the Vinaya Pitaka prohibits a Bhikku from entering the legal profession.Counsel for the Bar Association contended this fact and stated that atthe time the Vinaya was framed the profession of lawyers was totallyunknown. The Mahanayake of the Amarapura seat and the Mahanayakeof the Sri Kalyaniwansa seat states categorically that there is no rule ofVinaya Pitaka which prohibits a Bhikku from studying law and frompracticing the profession of an Attorney-at-Law. There are statementsregarding discipline and conduct of a Bhikku. They are made by priestswho are the final arbiters on such matters relating to the order to whichthe applicant belongs and to whose discipline he is subject. These opinionscan hardly be questioned by this court and must be accepted by us.They cannot be lightly rejected. They are the only evidence before us.Counsel for the Y.M.B.A. challenged this opinion and stated that he couldproduce affidavits from Maha Nayakes of other sects to the country. Hepossibly could do so, but we did not think it necessary to permit such acourse of action as it would only have enlarged the dispute unnecessarily.It is common knowledge that Bhikkus in this country have hitherto beenemployed in various secular pursuits such as Vice Chancellors ofUniversities, Ayurvedic Physicians and Teachers, notwithstanding the ruleof absolute poverty. (Vide the evidence of Sri Sumangala NayakaThero in Ratnapala Unnanse vs. Appuhamy(1> some priestshave held, and do hold even now considerable property which fact isrecognized by the Buddhist Temporalities Ordinance. These and other
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deviations from the strict rules are “necessary developments in the courseof centuries. Doctrine and belief, are of course, immutable but disciplineand administration are naturally subject to modifications. PerSampayo,
J. in Saranankara Unnanse v Ratnajothi Unnanse(2> (at 401). This Courthas in Sumangala Unnanse v. Sobitha Unnanse131 (at 255) expressed theopinion that the Buddhists of Sri Lanka have not adopted all the strictrules and regulations of theVinaya. Therefore an exhaustive inquiry intowhether or not the Vinaya prohibits a Bhikku to practice the profession ofa lawyer would be a futile exercise especially when we are confrontedwith the fact that Bhikkus have for decades been engaged in secularemployment. In the circumstances, to exercise a discretion against theBhikku, if discretion there be, would be fraught with danger and unwise.Counsel for the Colombo Y.M.B.A. appealed to us to use our discretionbecause Buddhists were powerless to prevent the Bhikku’s enrolment.My only reply is that the massive opinion of the Buddhist’s of thiscountry cannot be ignored by and should prevent a mere Bhikku fromseeking enrolment if it is in fact so abnoxious to Buddhist public opinion.There was also the plaintive cry of counsel for the A.C.B.C. and B.T.S.
– “ have mercy on us. Buddhism will be ruined if a Bhikku is enrolled asa lawyer”. Buddhism has been an integral part of the life of this countryfor well over 2,500 years and has withstood the assaults of foreign powersand foreign doctrines for over 400 years. It is preposterous to think ReverendSumana can achieve what foreign domination in all its might has failed todo for 400 years.
There is another reason for not embarking on such an inquiry. The .Vinaya Pitaka containing the rules and conduct of Bhikku are of a purelyecclesiastia nature (Hayley page 341). Court has consistently held thatsuch matters are outside the pale of the civil law and cannot be entertainedas legal disputes in Civil Courts. Canon law is within the exclusivejurisdiction of ecclesiastical courts (Woodhouse – Sisyanu SisyaParamparawa page 9). The history of these courts records that a disputein the Maradana Mosque regarding irregular practices at religious festivalsand the exclusive right to offerings was not entertained by the court. “The
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religious privilegeis a question for the priests
or the spiritual guardians of the Mohommedan religion. The civil right is
the sole right with which we are concerned"
To decide otherwise would be a “fearful responsibility “ (Marshall’sJudgments pages 657 & 658)(4) Vide also Aysa Umma v Sago AbdulLebbe (5)
The contention that the Vinaya have become and now have the force ofcustomary law of the land and therefore enforceable in the Courts needslittle consideration in this matten Even if they form customary law thestatements of the two Mahanayakes which is the only reliable evidencebefore us state that there is no such rule in the Vinaya. Again for a rule tohave the force of law by custom there must be certainty and on thismaterial before us such certainty is not shown. Moreover to say that therules laid down by the Buddha for the discipline and personal conduct ofhis disciples is enforceable through civil courts by laymen as CustomaryLaw, is abhorrent and should not rightly be entertained in any court.'
The last argument put forward is based on section 6 of the Constitutionof Sri Lanka which reads as follows : –
“BUDDHISM”The Republic of Sri Lanka shall give to Buddhism the foremost placeand accordingly it shall be the duty of the State to protect and fosterBuddhism while assuring to all religions the rights granted by section18(1 )(d). How much protection is to be afforded is a matter of policy forthe State acting through the National State Assembly. In what mannerand when, are matters within the power of the State exercized throughthe enactment of legislation. The mechanics of this section have notbeen made known. We can neither lay down policy nor make laws. Ourfunction is only, to interpret and administer laws made by the legislature,not to make law.
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Before I conclude I desire to state that we must in no way be understoodto condone the proposed action of the applicant. The Civil Courts areconcerned with matters mundane and the practice of the profession is insome respects a mercenary one – not one for him who has renouncedthe world and is seeking enlightenment. We in the Civil Courts are onlyconcerned with civil rights and duties and I can see nothing in the civil lawwhich disentitles the applicant to be admitted and enrolled as an Attorneyof this Court and we are powerless to prevent it. For these reasons onthe 2151 of March, 1978 I joined with three of my brother Judges inoverruling all objections. I should like to record my thanks to Counsel fortheir assistance, especially to Counsel for the Bar Association and theAttorney-General who appeared at my request.
SAM ARAWIOKREM A – / agreeWALPITA -I agree
GUNASEKARA- / agreeWANASUNDARA, J. (dissenting)
The applicant, an upasampada bhikku said to be a member of the SriKalyanawansa Maha Nikaya of the Amarapura Sect, has, in that capacityand under his monastic name of Nakulugamuwa Sumana, soughtadmission and enrolment as an attorney-at-law of this court.
The applicant has filed with his application the required documents forenrolment. They are the three certificates from the Law College showingthat he has duly passed the Final Examination for the admission ofattorneys, having been exempted from the two earlier examinations ashe has graduated in law at the University. The certificates testifying tohis good character are also annexed. There is also material indicatingthat he has served the prescribed period of apprenticeship and thereaftergiven public notice of his intention to apply for enrolment.
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Consequent to this public notice, however, a number of institutions,organizations, and individuals have protested and objected to his proposedenrolment. Three of the leading Buddhist lay institutions – the YoungMen's Buddhist Association, the Colombo Buddhist Theosophical SocietyLimited, and the All Ceylon Buddhist Congress were represented beforeus, and counsel appearing for them made submissions in support of theseobjections.
The matter before us is both res integra and the subject of a great dealof public interest, concern, and discussion in this country. It is due tothis importance that the Chief Justice has thought it necessary to constitutethis divisional bench of five judges, presided overby him, to decide whetheror not a Buddhist monk could be enrolled as an attorney-at-law.
The Bar Association was represented before us by Mr. Jayewardena,and the Association indicated that it saw no objection to the enrolment ofthe applicant. We are also thankful to the learned Attorney-General, whoappeared as amicus, for expressing his views in regard to some of thematters we are called upon to decide.
The application is supported by two important affidavits one from theChief High Priest or Maha Nayaka of the sect to which the applicantbelongs, and the other from the Maha Nayaka and President of theconglomerated group of the Sri Lanka Amarapura Maha Nikaya. ThisNikaya does not claim to represent all the Buddhist monks in this country,but is only one of the three Nikayas that exist here. These two affidavitsare to the effect that the admission of this monk as an attorney would notbe in conflict with the Dhamma and Vinaya, and that by such admissiona monk would neither commit a transgression of the monastic rules norcome under any disability as a monk. There are also other affidavits andmaterial to the same effect from the Buddha Sravaka Dharma BhikkuUniversity, Anuradhapura, from the Sri Lanka Bauddha MahaSammelanaya, from the Loka Sama Maha Sangha Sammelanaya, andfrom two well-known scholars of Buddhism, namely, Rev. Walpola Rahulaand Dr. W.S.Karunaratne.
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The legal provision relating to enrolment is section 33 of theAdministration of Justice Law, and Mr. Jayawardena first argued that inthe exercise of the powers under section 33 this court has not beenvested with a discretion in the matter. It was his submission that if therequirements mentioned in the section are satisfied, we have no optionbut to allow the enrolment of the applicant. He alleged that the documentssubmitted by the applicant, prima facie, satisfied the requirements of thesection. The learned Attorney-General, however, was inclined to the viewthat the section should not be interpreted as being mandatory but onlydirectory, and it left us with a discretion. This point is of some importanceand I find that it is necessary to deal with it first, before coming to theother matters raised before us.
An attorney-at-law in Ceylon can be said to occupy a position practicallythe same as that of a Barrister in England-per Jayewardena, J., in PereraVs Moonesinghe at<6) 79. We have generally looked to England for theprinciples and rules that should regulate the legal profession in this country.In cases of disciplinary proceedings, our courts have been guided by thedecisions given in the United Kingdom on such matters. In the course ofthe argument, Mr. Amerasinghe, Mr. Jayewardena, and the Attorney-General freely referred to material from the United Kingdom and relied onthe respective citations in support of their arguments on this point.
The position in England, as far as I can gather, seems to be as follows:Originally, the King himself was concerned in the training of advocates indisputes, but later this power was given to the judges. Thereafter, a partof the power came into the hands of the Inns of Court. A passage inDugdale’s Origines Juridiciales, 2nd Edn. 1671, quoted in Inre S.(7) tracesthe origin of these institutions;
“Chapter 55 of Dugoale's Origines Juridiciales, 2nd ed. (1671), is headed‘Settled places for students of the law, called Inns of Court and Chancery'
and records that King Edward I in 1292,' did especially appointthe
Lord Chief Justices of the Court of Common Pleas and then rest of hisfellow justicesthat they, according to their discretions, should provide
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and ordain, from every country, certain attorneys and lawyers, of the bestand most apt for their learning and skill, who might do service to his courtand people; and that those so chosen only and no other, should fellow hiscourt and transact the affairs therein; the said King and his council thendeeming the number of seven score to be sufficient for that employment;but it was left to the discretion of the said justices, to add to that numberor diminish as they should see fit.’ Certainly from that time onwards formany years not all those who had been called to the bar of their Inns wereallowed to practice in the courts at Westminster. From time to timeregulations were made by the judges prescribing the period of time whichmust elapse after call to the bar of an Inn before the right to audience inthe courts was exercised.”
Another useful statement of the development of these institutions iscontained in the judgment in A.-G. of Gambia V. N'Jie.iB) This statementis cited by Halsbury, Vol.lll (4th Edn.) p.589, note 6:
“ By the common law of England, the judges have the right to determinewho shall be admitted to practice as barristers and solicitors, and, asincidental thereto, the judges have the right to suspend or prohibit frompractice. In England, this power has for a very long time been delegated,so far as barristers are concerned, to the Inns of Court; and, for a muchshorter time, so far as solicitors are concerned, to the law society. In thecolonies, the judges have retained the power in their own hands, at anyrate, in those colonies where the profession is “fused.”
That this power is of a discretionary nature, is further borne out by astatement in Halsbury, that the courts have refused to grant mandamusto the benchers to admit a person as a student, or to call a student to thebar, and that they will not also determine questions of title to Chamberswhich belong to any of the Inns of Court. Halsbury (ibid) 591. More thanone case is cited in support of the above statement.
The practice that prevailed in the colonies can be seen from thejudgment of the Privy Council in By Petition from Antigua(9)
2-CM7228
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“ In England the Courts of Justices are relieved from the unpleasantduty of dis-barring advocates in consequence of the power of calling tothe Bar and dis-barring having been in very remote times delegated to theInns of Court. In the colonies there are no Inns of Court, but it is essentialfor the due administration of justices that some persons should haveauthority to determine, who are fit persons to practice as advocates andattornies there. Now advocates and attornies have always been admittedin the Colonial Courts by the Judges, and the Judges only. The power ofsuspending from practice must, we think, be incidental to that of admittingto practice, as in the case in England with regard to attorneys . In Antiguathe characters of Advocates and Attorneys are given to one person ; theCourt therefore that confers both characters may for just cause take bothaway. Although indeed our own Courts do not dis-bar for the reason 1 'have mentioned, I have no doubt they might prevent a barrister, who hadacted dishonestly from practicing before them. In (269) a case (in thatcase, the Recorder's court had suspended the whole bar for six monthsfrom practice, (in the hearing, the Privy Council deferred its determinationuntil further evidence should have been brought from Bombay, but thecase has never been brought forward again), which came before us ashort time ago from Bombay none of the members of this Board doubtedthat the Recorder’s Court there had authority to prevent English barristersto practice before them. The question was whether their authority hadbeen properly exercised.”
Mr. Amerasinghe drew our attention, particularly, to a statementcontained in Halsbury, Vo). II (2nd Edn.) at page 365, section 611, and toa reference in the English and Empire Digest, Vol. Ill, P.316. Accordingto this, persons in holy orders or those intending to be clergymen weredebarred in England from being called to the bar. This rule appears tohave undergone some modification very recently and, as the learnedAttorney-General submitted, it now seems to be included in a much broaderregulation enacted, with a similar object in mind. At the present day, astudent, before he is called to the bar, is required to sign a prescribed“call declaration". This declaration states, inter alia, that “he will not
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engage in any other occupation whatsoever which is incompatible withthe practices at the bar.” (Halsbury, Vol. Ill (4th Edn.)
In Sri Lanka, our courts have been empowered, since the time of theCharter of 1801, to admit lawyers to practice in the courts. In theAdministration of Justice Law, sections 33 to 36 deal with the lega.lprofession. The two sections that have a bearing here, are section 33dealing with admission and section 35 dealing with suspension andremoval. Theyareasfollows:-
“ 33. The Supreme Court may admit and enrol as attorneys-at-lawpersons of good repute and of competent knowledge and ability".“35. Every attorney-at-law who shall be guilty of any deceit, malpractice,offence or other conduct unworthy of an attorney-at-law may be suspendedfrom practice or removed from office by any three judges of the SupremeCourt sitting together.
It will be observed that the Legislature has used the word “may” in boththese sections. The word “may" in its natural meaning is used aspermissive or enabling. But the courts have sometimes interpreted “may"to mean “must" or “shall", where such a meaning is warranted by thecontext. Mr. Jayawardene has presented his argument on this basis. Itwould, of course, lie on those who contend for such an interpretation toadduce convincing reasons for doing so. Craies' Statute Law (7lh Edn.)284. The word “may” has been given mandatory effect where the powerreposed is coupled with a duty. Julius v, Bishop of Oxford.m. Theambiguity in the use of “may” can, for example, be seen in two recentcases. In Ex Parte Inahoro (11) and In Re Shuters,(12) the word “may"occurring in two consecutive sections of the Fugitive Offenders Act, 1881,has been read in the two different ways, depending on the context.
On a close reading of section 35, it would be seen that it contains onlythree requirements – good repute and competent knowledge and ability.Mr. Prins Gunasekara drew our attention to the Sinhala version of theAdministration of Justice Law and showed us that the word “ability" is
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translated in the Sinhala as “dakshatawayak” and stated that this wordcarries the meaning, “competence or proficiency." If this is so- the Sinhalaversion being the authentic version – this section is circumscribed andnarrowly drawn. There is nothing in it which contemplates any kind ofphysical disability, though it is possible to imagine some such instanceswhen this court will be justified in refusing admission to a person physicallyincapacitated though otherwise qualified. There is every indication thatour powers under section 35 in respect of admission are wider than statedby counsel. In this connection it is interesting to find that rule 4 of theRules regulating the Admissions, Enrolment and Removal of Attorneys-at-Law- Gazette No. 115/4 of 12th June 1974- states that on the receipt ofan application for admission, the Supreme Court shall direct the Registrar‘‘to inquire and report whether the applicant is of good repute and whetherthere exists any impediment or objection to his enrolment as an Attorney-at-Law.” This is how the authorities concerned in this matter haveunderstood it and it is indicative of a wider discretion being vested in thiscourt.
The position under the Courts Ordinance was substantially the sameas that now obtaining under the Administration of Justice Law, and itcould be interesting to see how our courts had interpreted thecorresponding provisions in the past. Let us first look at the cases dealingwith re-enrolment. There is no special action dealing with re-enrolment ineither law and applications for re-enrolment are in effect determined underthe section dealing with admission. In dealing with such matters, ourcourts have always stressed the discretionary element vested in the court.Three distinguished judges of our court- Wood Renten C.J., Ennis J.,and Sampayo J., In re Moonesinghe(13) said that' a court which has theright to remove the name of a solicitor from the Rolls had also an inherentdiscretionary power to re-admit him where he has subsequently expiatedthe offence of which he may have been guilty and redeemed his character.”.
In another case of re-admission, In the matter of Application ofSeneviratne to be admitted an Advocate,{U) Schneider, A.C.J., quotingfrom an Indian judgment, said;
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“ These cases amply establish the position that in so far as the Englishand American Courts are concerned though the name of a legal practitionermay have been removed from the Rolls by reason of professionalmisconduct or criminal conviction, the court may in its discretion readmithim, if satisfied that during the interval which has elapsed, since the orderof removal was made, he has borne an unimpeachable character andmay with propriety be allowed to return to the practice of an honourableprofession.”
An examination of the power of suspension and removal may alsothrow some light on the extent of our powers as regards section 33.There are numerous cases where our courts, acting under thecorresponding provisions, have indicated that the power contained thereis of a discretionary nature. For example, Howard C.J., In in re Brito^at 531, quoted with approval the following passage from the judgment of'Esber.N.R. in re Weare,16): “ It was there contended that where a solicitorhad been convicted of a crime it followed as a matter of course that hemust be struck off, but Barron Bollock and Hanistry J. held that, althoughhis being convicted of a crime prima facie made him liable to be struck offthe roll, the Court had a discretion and must inquire into what kind of acrime it is of which he has been convicted, and the court may punish himto a less extent than if he had not been punished in the criminalproceeding. As to striking off the roll, I have no doubt that the court mightin some cases say, “under these circumstances we shall do no morethan admonish him"; or the court might say, “we shall do no more thanadmonish him and make him pay the costs of the application”; or theCourt might suspend him, or the court might strike him off the roll. Thediscretion of the court in each particular case is absolute. I think the lawas to the power of the Court is quite clear”.
Coming back to section 33, a close analysis of it shows that theconditions set out in section 33 are of a limited nature. In effect it comesdown to just one requirement, i.e. of good repute, because the other tworequirements- knowledge and ability- will be presumed once a person
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has successfully qualified in the law examinations. Having regard to thebackground to these provisions referred to by me, I find it difficult to accepta limited view of these sections as advocated by Mr. Jayawardena. Thelanguage used and the context, the nature of the power, the persons inwhom it is reposed, the manner in which it has been interpreted andexercised by the courts, and the limited nature of the requirementcontained therein, all impel me to form a wider concept of our powers. Iam therefore inclined to agree with the learned Attorney-General that thesesections vest in us a discretion when we deal with such applications. Itwould now be legitimate for us, upon this conclusion, to proceed to theconsideration of the varipus objections that have been taken to theapplicant’s admission and to find out whether they constitute a sufficientground for refusing him admission to the bar.
Turning to the main case, I think it desirable for a proper appreciationof the issues before us that some reference be made to the matters setout in the affidavits, namely, the sangha the monastic rules, and theirplace in society. For this purpose I propose taking the liberty of referringto matters of common knowledge, to the texts and authorities brought toour notice at the hearing by counsel on both sides and to certain mattersof public history of which this court can legitimately take judicial notice.It may be specifically mentioned that the Vinaya and the Sutras werefreely referred to by counsel at the hearing, and we were informed that thePali texts constituting these pitakas along with their Sinhala translations,prepared under the auspices of the Government and published by theGovernment are publicly available. These texts have also been translatedand are available in English.
There is the further fact that the Constitution enjoins the State to protectand foster Buddhism. The constitutional provisions contain a solemnassurance, worded in categorical terms, as follows : –
“The Republic of Sri Lanka shall give to Buddhism the foremost placeand accordingly it shall be the duty of the State to protect and fosterBuddhism while assuring to all religions the rights granted by section18(1)(d).”
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Since it binds the State, it must be taken cognizance of by all Statefunctionaries, including Judges, as I shall show later in the course of thisjudgment.
Anyway,'a majority of the persons in this country are Buddhists byreligion. This is, I believe, reflected also in the composition of the StateServices. The main principles and tenets of the Teaching are well knownto practically all practicing Buddhists, and there are many such personsin this country occupying places both high and low in all walks of life.They, of course, cannot disown that knowledge whatever thecircumstances may be. I am sure that it would be a matter of surpriseand perplexity to most of these Buddhists, if they are told that there isnothing in the Teaching that would make it objectionable for a Buddhistmonk to don court attire and begin practicing in the Courts while stillremaining a monk. This would undoubtedly appear to them as a noveland startling interpretation of the Buddha’s Teaching. Though this maybe the immediate and instinctive reaction, yet those of them who arefortunate to be acquainted even cursorily with the Suttas would have thesatisfaction of knowing that there is ample reasons for their disagreement.And yet, we have the spectacle of persons who profess a knowledge ofthe Dhamma speaking in a different voice. I have in mind the affidavitsfiled before us by the applicant. But that material is unconvincing andeven contradictory. To give one example, the applicant relieson a statement of Dr. Walpola Rahula, which includes the followingpassage .-
"Professions such as practicing medicine, chanting and the preparationof talismans were against both the dhamma and vinaya. Monks whohad taken up these professions had acquired a place in present daysociety in spite of the fact that these types of professions were not inkeeping with the disciplinary code for monks.”
Would it be unreasonable to say that what has been said of medicinewould apply with greater force in the case of the practice of the law?
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But, yet counsel who supported this application attempted to showthat there was nothing in the Buddha’s teaching which prohibited a monkfrom practicing as an attorney-at-law. It was suggested that this kind ofpre-occupation could be regarded as a sort of public service to thecommunity which, he said, the Buddha had actually enjoined on themonks. This view is unfortunately shared by many, especially by somewell-meaning persons who give undue emphasis to “social service".Undoubtedly there is an aspect of Buddhism which shows a concern forthe material well being of man, since the Dhamma was preached forlayman too and not solely for monks. But Buddhism so far as a Bhikku isconcerned is essentially a path of individual self development, entailingthe regulation of mundane matters and the leading of a life of purity. Mr.Prins Gunasekera relied on the well known exhortation by the Buddha tohis first sixty disciples to wander forth among the people and preach theDhamma, out of compassion for them. Let it be noted that the exhortationwas to proclaim the Dhamma and the brahma chariya – the holy life, andnot anything else. What we are now dealing with here is a case of a veryworldly profession and even Rev. Walpola Rahula seems to suggest thatthis vocation would be contrary to the Vinaya. The exhortation was alsoaddressed to (arahats) persons who had reached the pinnacle of holiness- “They had done what had to be done and brought to an end the Brahmafaring – the holy life". It is only they who could grasp the Teaching in itsfullness. I think, it could be truly said that unless a person has gainedwhat is called “right view” (samma ditti), he cannot be said to be in aposition to rightly understand this profound Teaching. It is undoubtedly anoble service for anyone to preach the Dhamma, which he can do only tothe extent of his knowledge and capacity, but even so, one should notneglect one's own progress in the Teaching. The effort to obtaincompetence and mastering in the chosen field must take priority overpublic service. When the Teaching is so deep and profound, requiringsustained exertion of almost a superhuman level, one may well ask,where could a monk find the spare time and energy to lavish on a veryexacting vocation like the law ?
Since the material filed by the applicant is contradictory and somewhatconfusing in many respects, it would be necessary for us to ascertain the
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correct position in regard to them. For this purpose it would be best tofollow the salutary rule – so often mentioned by the courts – that is, to goto the original source and try to ascertain what the Buddha has actuallysaid on these topics. Chief Justice Anton Bertram had, on a number ofoccasions, delved exhaustively into the original Vinaya texts. Chief JusticeBasnayake himself advocated a return to the fundamental principles ofthose texts. He said in Dhammavisudithi Thero V. Dhammadassi Therot17>(at 480).
“But when we are dealing with ecclesiastical property, a region in whichwe are enforcing simply the ecclesiastical law based upon the originalauthoritative texts developed by religious customs, we ought not torecognize claims and transactions which are in their terms or in theirnature inconsistent with the fundamental principles of those texts andthose customs".
Although a little search in the Suttanta will show any number ofpassages indicating that it is no part of the training for a monk to occupyhimself in worldly matters once he has renounced the world I shall selecta few of those passages which come immediately to the mind of anyBuddhist for this purpose. In the Sanyutta Nikaya the Buddha declared –
“Formerly and now also Anuruddha, it is just suffering (dukka) and thecessation of suffering that I proclaim". .Aryaketha Samyutta Sutta No.02, Sayuttta IV)
Again,
Just as Paharada, the great ocean, Paharada has but one taste, thetaste of salt, even so Paharada this Dhamma and Discipline has but onetaste, the taste of Deliverance.” (Attaka Nipata Maha Wagga Sutta No.09, Anguttara iv)
The Buddhist concept of suffering dukka goes to the very roots ofexistence,, in fact it touches existence itself – the existential being.
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Even in the first sermon the Buddha summed up the Noble Truth of suffering(dukkha) in the following words: “In short, the Five Grasping Groups (pansaupadana skanda) are suffering.”
In Buddhism, these Five Grasping Groups constitute the self or being.The way of the world and all wordly affairs are based on this foundation ofthe self, but the Buddha’s Teaching is a way leading to the destructionsof the self which is founded on ignorance (avijja) and desire (thanna).The graduated scheme of training consisting the Teaching has beendevised for this purpose and anyone who takes to the doctrine with anyseriousness must progressively give up worldly affairs and pursue a life ofrenunciation This is precisely the effect of the monastic rules of trainingand for a monk there could be no compromise. In the case of thelayman, it is a different matter. He must necessarily follow the Teachingwithin the contents of his day life.
Accordingly, a bhikku or monk is one who has voluntarily chosen torenounce the pleasures and unhappiness of the world in the active searchof a higher ideal. He has sought refuge in the Sangha. Today, ordinationis given by the Sangha. Upasampada is never forced on an unwillingperson. It is the tradition that the aspirant must utter words requestingthe going forth (pahajja) indicating that he renounces the lay life andenters the order to seek an escape from suffering. A Bhikku is however atliberty at any time to leave the Sangha and revert to lay life. It is the dutyof a monk to strive earnestly and by learning, practice, and meditation,develop those virtues, qualities, and attainments that bring about a trueunderstanding of the Dhamma. The greatest effort is called for to realizethe Deliverance spoken of by the Buddha. It is needless to state thatsuch a life of exertion would be a full time occupation, leaving no time forany other activity. In fact, any worldly activity would, by it's very nature,be inimical and an obstacle to one who wishes to follow in the footstepsof the Buddha.
That a monk’s life, as ordained by the Buddha, in its pure form, isincompatible with lay life would be apparent to anyone even having a little
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acquaintance with the Dhamma. The institution of the Sangha wasestablished by the Buddha as a haven for those who wish to get awayfrom lay life and who need the optimum conditions for pursuing the arduouslife of virtue, meditation and wisdom demanded by the Teaching. A personwho enters the Order should be mindful of this change of status andrecall this difference as often as possible. In the Anguttara v page 87,the Buddha refers to ten Dhamma which a bhikku should oftencontemplate. They are:
A bhikku should often reflect that: How my status is differentfrom that of a lay person and my actions and behaviour mustaccord with those of a samana –
A bhikku should often reflect that: “My necessities of life dependupon others and I should act in such a way as to be one who iseasy to supply with these necessities.
A bhikku should often reflect that: “There are other kinds of bodilyaction and speech which I shall have to do that are better thanthese (which I do at present). There is still more to do and whatI have done is not yet enough.
A bhikku should often reflect whether, as far as sila is concernedhe can criticize himself or not.
A bhikku should often reflect whether, as far as sila is concerned,sameera who is in a position to know could, after due consideration,criticize him or not.
A bhikku should often reflect that: “We are bound to becomeseparated from all things that we love and that give us pleasure
A bhikku should often reflect that: 'One’s kamma is one’s own. Ifone does good one receives good, if one does evil one receivesevil.’
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A bhikku should often reflect that: ‘Right now time is passing byand what am I doing ?’
A bhikku should often reflect upon whether he is glad to live insolitary places or not
A bhikku should often reflect that: ‘Have I or have I not developedany extraordinary qualities so that I shall not became embarrassedwhen questioned by my fellow bhikkus in the future time.’
This theme of exertion and renunciation runs through all the Suttas.The Dhamma Dayada Sutta in Hajjihima Nlkaya I Sutta No. 3 gives oneinstance of the extreme nature of this demand. Here the Buddha enjoinsthe monks to be heirs of His Dhamma and not heirs of material things.He himself illustrates this by giving the example of two monks who cometo him worn out with exhaustion and hunger just after the Buddha hasfinished his meal and some alms food is remaining in the bowl to bethrown away. The Buddha tells them to eat it if they so desire. But onemonk mindful of the Buddha’s teaching not to hanker after material things,forgoes it, while the other seeing no harm in eating eats it. The secondmonk did what everyone, by worldly standards, might do. The Buddhahimself does not blame him, but he said that the first monk is for Him themore to be honoured and praised. What is the reason for it ? He said thatit will conduce for a long time to that monk’s desirelessness to hiscontentment, the expunging of evil, to his being easily supported, and tohis putting forth energy. Therefore, He exhorted His monks, to be Hisheirs of Dhamma and not heirs of material things.
The life of a monk, as laid down by the Buddha, is thus at completevariance with that of lay life. The spirit and flavour of the Dhamma is oneof renunciation of giving up worldly affairs, and strenuous exertion for thedevelopment of virtue and mental development. And it is in the secludedand monastic life as a monk that the Dhamma can be practised to thefull. The Vinaya reflects the Dhamma and in order of sequence it takesits place after the Dhamma. The Patimokkha Vinaya actually came into
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being about 20 years after the Sasana was established. During thelong period before the Vinaya came te>be laid down, there was no lack ofarahats even though there was no Vinaya Patinakkha In fact it is saidthat during this period the sangha existed in complete purity and everymonk was an arahat or well on the way to becoming one. The Vinayarules came to be laid down by the Budda with the beginings of a corruptionin the Sangha. The rules were formulated for specific transgressions andwere laid down as and when the occasion arose. For example the firstparajika rule was laid down when Rev. Saddinna-referred to by Mr. PrinsGunasekara at the hearing, trangressed the practice of celibacy. TheBuddha rebuked him in these words which if one examines them carefullyseem to embody the essence of the Teaching :
“How can you foolish man, while Dhamma is taught by me in variousways, for the sake of passionlessness, strive after passion how can youwhile Dhamma is taught by me for being without fetters, strive after beingbound; how can you, while the Dhamma is being taught by me for thesake of non-grasping, strive after grasping? Foolish man, is not Dhammataught by me for the subduing of conceit, for the restraint of desire, for theabolition of clinging, for the annihilation of the round of becoming, for the
destruction of craving, for passionlessness?foolish man,
you are the first doer of many wrongful things
The Vinaya rules themselves are most exhaustive in nature and containthe training rules, prohibitions, allowances, and regulations, governingthe life of a bhikku. They do not constitute penances or mortification,but are intended to hedge in a monk to a life of seclusion and puritywhich will facilitate his mental development. They deal inter alia, withsuch minute matters as of dress deportment and propriety of conduct ofeating, wearing the robe and even aganst causing harm to seeds andplants. It is not necessary here to refer to them in any detail as even acursory perusal of the 227 rules will reveal this. These rules will give afair idea of the great degree of restraint and control over the facultiesdemanded from a monk and how incompatible such conduct is with thelife of a layman By no stretch of imagination could it be said that the
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profession of the law with this pre occupation with criminal and civilmatters and its atmosphere of debate and contention heat and tensioncan be reconciled with the calm and detached life expected of a monk asindicated by the Vinaya.
To the.average Buddhist of this country, it may thus appear that thereis sufficient material in the suttanka and these Buddhist texts were reliedon by counsel – to justify the putting forward of a view counter to thatcontained in the affidavits. I do not say that this court should import itsown knowledge on such matters into the record of the case, but thereare ample procedures is our law where expert opinion can be obtainedwhen a court likes to be informed on some complex or unfamiliar subject,Since the material placed before court was as stated earlier, bothcontradictory and confusing this undoubtedly was the procedure the courtshould have adopted in this matter. In fact that practice has beenfollowed by this court on several occasions, especially when difficultquestions relating to the Vinaya itself , as in this case arose forconsideration vide Dhammaratana Unnase V Sumangala Unnanse andthe Appendix in. This was the least the Court could have done in thiscase but unfortunately my brothers did not choose to adopt this procedure.
Such a course was obviously indicated having regard also to thereferences in the affidavits to the practice called granthadura which clearlyneeded some clarification. It is a historical fact that, in the course of themany centuries since the passing away of the Buddha, the Sangha hasfallen into decline. One of the most important factors that brought aboutthis deterioration was the evaluation of the two vocations namedgranthadura (vocation of books i.e. scholarship ) and vipassana dura(vocation of meditation and insight). This arose at a certain point in ourhistory when monks decided to give precedence to scholarship as againstthe earnest practice of the Dhamma, with a view to realizing here andnowthe states of holiness. Rev. Walpola Rahula a scholar on whom theapplicant relies, in his book, “The History of Buddhism in Ceylon" statesthat we all know that according to the original teaching of the Buddha thepractice of Dhamma (Pattipatti) is of greater importance than merelearning (pariyatti)” (page 158), and he continues (page 161) –
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“originally grantha dura meant only the learning and teaching
of the Tripitaka. But as time went on the term was widened and it beganto embrace languages, grammar, history, logic, medicine, and other fieldsof study as well. This trend on occasions took the monks not only beyondthe confines of the Vinaya but also the criminal law of the land” (vide p.86).
It is in this context that Rev. Rahula makes a reference to a Thera,named Abhidammika Godatta, an erudite monk learned in both Vinayaand Abidhamma. Although the applicant relies on a statement that Rev.Godatta had been-appointed the Chief Justice of the country, thatstatement is not actually borne out by the citation. Rev. Godatta, according-to Rev. Rahula "was raised to a position virtually equal to the office of theChief Justice of Ceylon.”
Even this opinion seems unwarranted because as Mr. Jayawardneapointed out the legal profession and the courts as known today wereunknown at that time. The proclamation of the King as regards Rev.Godatta was merely to the effect. “As long as I live, judgments givenby Godatta Thera in cases either of the monks, nuns or layman areAbhidammika final.
I will punish them who does not abide by his judgment”. This appearsto mean nothing more than that his decisions had the approval of theking. Even lay people seem to have gone to Godatta Thera with theirproblems but there is nothing to indicate that he was the holder of anoffice that carried with it remuneration. In any event Rev. Godatta's caseis one where a monk enjoyed royal favours and got mixed up in laymatters to an extreme degree. It shows to what extent monks at thathistorical period had departed from the original tradition.
Rev. Walpola Rahula then, tracing the history of theSangha statesthat soon some monks got interested in other lay activities such asliterature and the fine arts. With the inevitable acquisition of property and
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temporalities within this way of life, further changes were wrought in thelife of the Sangha. He goes onto say at page 166 :
“ A large number of practices that the new situation demanded wereagainst the original Vinaya. Monks had not the authority and the courageto change the Vinaya rules against the decision of the Rajagaha Council.Nor were they able to ignore the new situation. They were placed on thehorns of a dilemma. Some of the examples given below will show howingeniously they got over the difficulty without going against the letter ofthe law though in fact their solutions were quite contrary to the spirit ofthe teaching.
Fortunately, a survey of the history of-the Sangha in Ceylon does notshow (except with one or two rare exceptions) either a continuous declineof the Sangha or a degeneration that embraced the whole of it. Only ona very few occasions was the Dhamma threatened with destruction andon these occasions remedial action was taken successfully to preservethe Dhamma and the Sangha. Time and again, pious and able rulersand monks with faith and vision stepped into stop the decadence andpurify the Sasana. Some of the great names in our history and thenumerous kathika vathas bear testimony to this fact.
The latest was the Kathikavatha of Sri Rajadhi Rajasinghe which isreproduced in the Report of the Commission on the Administration ofBuddhist Temporalities. In this view of the matter, harking back to anancient period of decadence would give no indication of the state of thereligion today or of any other period.
Looking at it in its historical perspective, our present constitutionalprovision giving protection to Buddhism could be regarded in many waysas being akin to such remedial action and as a measure thought out anddesigned to preserve Theravada Buddhism in this country. One may
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well ask the question as to what is the real state of Sasana today whenwe see monks beginning once again to participate in secular activities.It is, however, common knowledge that the great majority of the monksin this country, particularly the elder monks, though following the granthadura, still believe that the nobler ideal is a life of seclusion with their fulltime being devoted to the practice of virtue, meditation and wisdom. But,though their spirit may be willing, they do not choose to exert themselvesto achieve that progress. They have been content to remain mere scholarsand guardians of the books, leading lives of indolence and ease. But,one has no reason to presume that by and large they do not adhere tothe basic morality and discipline expected of them. It may well be thatthe sum total of their lives, as Rev. Rahula says, are limited “ to therecitation of theSuttas (Pirit Chanting), preaching a serman, attendanceat funeral rites and alms giving in memory of the departed, and to anidle cloistered life in the temple”. But, still a majority of monks in thiscountry lead cloistered lives in temples and are content to lead evensuch scholarly and idle lives rather than betray the spirit of the Teachingby entering the public arena and taking an active part in worldly matters.
Side by side with this, the true and pristine monastic tradition, asoutlined in the Pitakas, has survived in this country. There are still monksin this country who are scrupulous in the adherence to the DhammaVinaya and are faithfully following in the footsteps of the Master. Thattradition has survived in this country virtually unbroken, and in recenttimes there has been an upsurge and revival of the practice of monkstaking to a life of seclusion and meditation in remote and lonely places.Without fear or contradiction, one could say that there are probably moresuch monks today than at any time within the last 500 years. Thistradition, constituting the practice and understanding of the DhammaVinaya, and notmere scolasticism , is, in my view, the true heritage oftheSangha.
I now come directly to the objection based on the constitutionalprovisions, namely, section 6 of the Constitution. This objection has
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been taken in the papers filed by the Y.M.B.A. and it was also formallytaken up before us by Mr. Amerasinghe. Mr. Jayawardena referred to it inpassing and it is unfortunate that this question was not given its dueimportance, because the majority were not receptive to the argumentarising from it. Needless to say there was more to this problem thanoutlined in the submissions. In my view it is this matter which has thegreatest bearing on the issues before us and on which the decision inthis case must turn.
Section 6 of the Constitution has been reproduced earlier in thisjudgment and I have referred to the important position it holds in ourConstitution. This provision has had a noble and ancient ancestry. Forover two thousand years the State in this country had undertaken theprotection of Buddhism, which was at that time the State religion. It wasso even in times of foreign domination and when alien rulers occupiedthe throne. At the time the Kandyan Kingdom was ceded to theBritish, the Chiefs and the High Priest insisted that a clause guaranteeingprotection of the religion of the Buddha be embodied in it. But a foreignGovernment, with an established Church and Missionary activities foundits Treaty Commitments in conflict with its colonial policy and Christianideals. Thus, this clause in the Convention was quietly ignored duringthis period, though it remained on our statutes book, virtually a deadletter, till the present provision superceded it in 1972. The protection ofBuddhism, whether by the courts or other instrumentalities of theGovernment, during that period was minimal and therefore those whopoint to the absence of any cases or precedent on this matter havemerely searched for something which was not there to be found. Thispresent provision in our Constitution may well be said to embody theaspirations of the great buddhist majority of this country, who, after weregained independence, once again wanted this guarantee written intothe Constitution so that the state and the people could re-dedicatethemselves to it.
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Section 6 ' declares that the Republic of Sri Lanka shall give toBuddhism the foremost place and in the second part of the sectionenjoins the State in these words ;
“it shall be the duty of the State to protect and foster
Buddhism while assuring to all religions the rights granted by section18(1 )(d).”
I do not think my bothers will disagree if I’say that there is a clearduty cast on the State to protect and foster buddhism. The aspiration ofour people are not embalmed in this section : neither was this sectionput in to deceive the people, nor is it a mere ornament to be admired froma distance. The section is very much alive and carries with it a force forthe good to be availed of, so that our society will continue to be firmlyanchored to the highest values of religion and morality.
These provisions create legal rights and obligations and have the forceof law and are enforceable in the courts of this country. Further, anylaw, act or transaction inconsistent with these provisions can be broughtup for legal determination before the appropriate forum. This legal positionbecomes apparent when we contrast this section with section 16 of theConstitution which sets out the principles of State policy. Section 17expressly states that “the provisions of section 16 do not confer legalrights and are not enforceable in any court:Nor may any question of
inconsistency with such provisions be raised in the Constitutional Courtor any other court.” There is no such indication in respect of section 6.
That section 6 creates obligations of a strictly legal nature binding onthe State is manifest. Mr. Jayewardena submitted that whatever actionthat is called for in this matter should be left to the Legislature andExecutive. My brothers appeared to acquiese in that view. If it is aquestion of power, both the Legislature and Executive undoubtedly havepowers to intervene in the present situation in their own way. But I donot think that we need instruct them as to what they ought to do. On the
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other hand, if these provisions cast a duty on us, could we remainindifferent or inactive in respect of our obligations?
Let us next find out what is meant by the “State” and more specificallywhether the judicial department of government could be said to be includedin the term “State”.
An analysis of Chapter 1 of the Constitution shows that the people inwhom the sovereignty of this country was vested established a sovereignState named the Republic of Sri Lanka. The manner in which the powerof the State is to be exercised is set out in section 5, as modified by theSecond Amendment. That is to say, there are now two supremeinstruments of State power – the National State Assembly and thePresident. The judicial power is exercised by the National State Assemblythrough courts and other institutions created by law. These are the maininstrumentalities of the State and there is reposed in them those importantfunctions without which a State cannot exist. Even the ordinary meaningof “State” contemplates the Legislature, judiciary and executive – thethree great departments of State. One distinction usually drawn betweenthe judiciary and the other departments of State is that Judges do notgovern." By this it is meant that the judicial department cannot initiate orpromote action. It can act only when its jurisdiction is invoked in a caseor controversy by parties. This distinction may be valid for certain purposes,but has no relevance in the present context. I do not think it can beseriously argued that the judiciary, which is such an important componentof the Government, does not come within the ambit of the term “State.”
To take an example, if the fundamental right of the freedom of worshipenshrined in section 18(1 )(d) is violated by executive action in a mattercoming before Court, the court must, by the very nature of its functions,give effect to the superior provisions of the Constitution. In the presentcase the fundamental right of religion, so far as Buddhists are concerned,is contained not only in section 18(1 )(d), but also in section 6. Thissection gives to Buddhism- the religion of the majority – a precedence
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and greater emphasis, while assuring to all religions the freedom of worshipcontained in section 18(1 )(d).
The application of section 6 to the matter before us arises in this way.The State is enjoined to protect and foster Buddhism. When a monk isenrolled by us as an attorney, this determination by us as Judges placesa seal of approval on.an act which is said to be violative of the DhammaVinaya. For this purpose it is not necessary that some specific tenet ofthe Vinaya should be transgressed even a significant division from thespirit of the religion, I think, may suffice if it could be said to endangerthe Teaching.
Questions similar to this have arisen in other jurisdictions and thosedecisions, I find, are of great help in interpreting our law. .In America,prior to 1948, there was a practice among the whites of having racialrestrictive covenants which prohibited the sale or lease of land and otherproperty to Negroes.. Those were purely private agreements. Wheresuch conditions had been imposed by the government or municipalauthorities, the Supreme Court had earlier ruled that they violated theequality clause of the Fourteenth Amendment. The Supreme Court inShelley v. Kramert (19) was confronted with a racial restrictive clausebetween private parties. But in this case judicial recognition by the localState Court had been given in enforcement proceedings. The questionwas whether the judicial intervention in the proceedings made it Stateaction so as to constitute a violation of the fundamental rightsguaranteed by the Constitution.
Justice Vinson, delivering the opinion of the Court, said,
“But the present cases, unlike those just discussed, do not involveaction by state legislature or city councils. Here the particular patternsof discrimination and the areas in which the restrictions are to operate,are determined, in the first instance, by the terms of agreements amongprivate individuals. Participation of the State consists in the enforcementof the restrictions so defined. The crucial issue with which we are here
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confronted is whether this distinction removes those cases from theoperation of the prohibitory provisions of the Fourteenth Amendment.
Since the decision of this court in the Civil Rights Cases, 109 U.S. 3,the principle has become firmly imbedded in our constitutional law thatthe action inhibited by the first section of the Fourteenth Amendment isonly such action as may fairly be said to be that of the State. ThatAmendment erects no shield against merely private conduct, howeverdiscriminatory or wrongful.
We conclude, therefore, that the restrictive agreements standing alonecannot be regarded as violative of any rights guaranteed to petitionersby the Fourteenth Amendment. So long as the purposes of theseagreements are effectuated by voluntary adherence to their terms, it wouldappear clear that there has been no action by the State and the provisionsof the Amendment have not been violated
But here there was more. These are cases in which the purposes ofthe agreements was secured only by judicial enforcement by state courtsof the restrictive terms of the agreements. The respondents urge thatjudicial enforcement of private agreement does not amount to state action;or, in any event, the participation of the States is so attenuated in characteras not to amount to state action within the meaning of the FourteenthAmendment
That the action of state courts and of judicial officers in their officialcapacities is to be regarded as action of the state within the meaning ofthe Fourteenth Amendment, is a proposition which has long beenestablished by decisions of this Court
Against this back ground of judicial construction, extending over a periodof some three-quarters of a century, we are called upon to considerwhether enforcement by state courts of the restrictive agreements inthese cases may be deemed to be the acts of these States and, if so,
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whether that action has denied these petitioners the equal protection ofthe laws which the amendment was intended to insure.
We have no doubt that there has been state action in thesecases in the full and complete sense of the phrase. The undisputedfacts disclose that petitioners were willing purchasers of propertiesupon which they desired to establish homes. The owners of the propertieswere willing sellers, and contracts of sale were accordingly consumated.It is clear that but for the active intervention of the state courts, supportedby the full panoply of state power, petitioners would have been free tooccupy the properties in question without restraint.
These are not cases, as has been suggested, in which the Stateshave merely abstained from action, leaving private individuals free toimpose such discriminations as they see fit. Rather these are cases inwhich the States have made available to such individuals the full coercivepower of government to deny to petitioners, on the ground of race orcolour, the enjoyment of property rights in premises which petitionersare willing and financially able to acquire and which the grantors are willingto sell. The difference between judicial enforcement and non-enforcementof the restrictive covenants is the difference to petitioners between beingdenied rights of property available to other members of the communityand being accorded full enjoyment of those rights on as equal footing
We hold that in granting judicial enforcement of the restrictiveagreements in these cases, the States have denied petitioners the equalprotection of the laws and that, therefore, the action of the state courtscannot stand’’
In a later case , Barrows v. Jackson,(20) this principle was extendedwhere one of the parties to a racial restrictive covenant was sued by theother for damages, both being white, for selling the property to a Negro.The Supreme Court held that the defendant seller could defend the action
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on the ground .that the contract was discriminatory of Negroes and thata State Court judgment for damages would constitute state action violativeof the Fourteenth Amendment in the same legal sense as an order by acourt for specific enforcement of a restrictive covenant.
Seervai in his book “Constitutional Law of India (1968 Edn.)” afterreferring to Shelley v. Kraemer (supra) and dealing specially with theEquality Clause in the Indian Constitution, observed,
“Those judgments are direct authority for the proposition, that theprohibition of the Equality Clause is as binding on Judges as it is on theexecutive and the legislature, and having regard to the identical languageemployed in Article 14, it is submitted that the prohibition of Article 14applies to the Judiciary”.
On the basis of those principles and in the light of all relevantconsiderations, it is manifest that the provisions of section 6 of ourConstitution are intended to govern even the acts of Judges and, therefore,the section will have a controlling effect in the resolution of the matterbefore us. I would, however, like to stress that this is more than a mereterminological decision. I feel that, in coming to this conclusion, I havebeen able to avoid programming a series of contradictions which mayhave had the effect of unsettling a result achieved by the Legislature andthe People. In saying this, I like to add one word of explanation; lest,some people misconstrue the actual effect of my ruling. It should beremembered that we are dealing here with the case of a Buddhist monkstill in yellow robes, where a section of Buddhists have taken exceptionto the course of action on which he has embarked. This matter in essenceis a dispute among the Buddhists and concerning the Buddhists only. Inthe course of the hearing, it was brought to our notice that a priest ofanother religious order had already taken his oaths as an attorney-at-law;but it was agreed that that case had no bearing on the issues in thiscase. Thus, my ruling in the present case is not meant to have widereffect. It is unnecessary in the present context to rule on the extent or
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range of this constitutional provision; but, in the event it comes up fordecision in the future in a different context, I have no doubt that section 6will be so interpreted as to further the legitimate rights of all personsliving in this country who go to constitute the multi-religious and multi-racial society of ours.
The next matter that arises for consideration .is the extent of theprotection afforded by section 6. The operative words are “protect” and“foster”. They are ordinary words understood by everybody. “Protect"means keep safe, defend, guard against damages or injury. “Foster”means promote growth or, encourage tend. For the purpose of interpretingthe provisions of section 6, it would be sufficient if I were to regard theyear 1972 as the material date this being the date of the introduction ofthat provision. When it is said that Buddhism should be protected, doesthis envisage a rest&ration of the religion to its original purity or merelyits preservation from further degeneracy and depredation? The issuebecomes further complicated by the fact that, as stated earlier, it is stillpossible to see.in this country the Dhamma Vinaya in its pure form, notonly preserved as theory or text but also in practice as living example.Side by side with this, we also see in certain quarters the spectacle of adeparture from those high ideals where laxity and degeneracy prevail.Let me again, for the present purpose, take as it were the lowest commondenominator, namely the present state of the religion and the generalstandards now prevailing among the majority of the Buddhists. I findthat it is unnecessary to express a wider opinion, since this case can beresolved on that basis. There is another way of looking at the samematter. One may pose the question whether the provisions of section 6should be regarded as a sword or as a shield. That is to say, shouldsection 6 be applied in a positive' sense so as to undo even earliertransgressions and transactions, or only negatively in a defensive way,to prevent and ward off threatened dangers. Following what I have saidearlier, let me again assume that we are concerned with prospectivetransgressions and the duty of preventing them. Even transactions, ifany, between 1972 and today are not before us for determination and in
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any case if there had been any such transgression, they will have to betested in the light of the over-riding provisions of section 6. They toohave no bearing on this matter.
In this case the Court is faced with an altogether new situation. Herewe find a Buddhist monk knocking at the doors of the legal profession foradmission. Such a thing has never occurred in contemporary times, nordo I think it ever occurred before in the 2500 years of the history of thesasana notwithstanding Rev. Dodatta Thera. It is a melancholy fact thattoday we see monks in yellow robes engaged in diverse worldlyoccupations. There are monks who are astrologers, makers of talismans,charmers of magic spells, and ayurvedic physicians. I do not think westill have a monk who has passed out and is practicing what is called“Western Medicine". Compared to these vocations, the practice of thelaw is a new departure, a sort of quantum leap a striking out in a newdirection that cannot but have a most unhealthy influence on the prevailingposition. History reminds us that it is always by such little advances thata retrograde movement imperiling the Dhamma has been able to achievesuch deep penetration.
The legal profession, which is an honourable one, has its due place inthe fabric of society and it serves the community in its own way. Butfrom the spiritual stand-point of the Dhamma,. the practice of the law isregarded as being more materialistic and more worldly than even teachingand the practice of medicine. It is also reckoned as being different fromthem in kind rather than in degree.
In so. far as the legal position is concerned, it is my view that anydeterioration or worsening of the prevailing state of affairs of anysignificance would attract the protective provisions of section 6 of theConstitution. No standard less exacting than this can properly be attributedon an interpretation of these provisions. It will be noted that the protectionafforded by this provision is to a religion. The manner and extent in whichcertain acts will have an impact on a thing which is of the spirit and of an
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unworldly nature cannot be weighed or measured with any degree ofprecision, or assessed by worldly standards. We are dealing withimponderables and the consequences of the present act cannot be forseen. It is certain the ruling of the majority will be sought to.be used asa spring board for a wider incursion into lay life. I am also inclined toagree with Dr. Wickramasinghe that if an increasing number of monkswere to take to these worldly occupations, the destruction of Buddismwill be hastened. The conduct and behaviour of such monks, who willfind it increasingly difficult to confirm to their monastic vows, would be areflection on the entire Sangha and in consequence the Sangha would,before long, forfeit the great respect and support it has earned from itslay supporters. The lay buddhist is an essential component and thestay and support of the Sasana : and when he turns lukewarm to thereligion, we can expect its destruction to be at hand.
I now come to a part of the case where the applicant has shown thegreatest amount of misunderstanding and confusion. The affidavits fromthe Mahanayakas – two respected and well known monks – haveapparently being filed on the basis of certain authorities of this court,but unfortunately those cases, if carefully examined do not bear out theposition taken up by the applicant.
There are cases which state that our courts will generally give recognitionto decisions of domestic tribunals, where such decisions concernmatters of internal management and discipline. A court will not go behindsuch a decision unless that decision was made without authority, orwhen in arriving at the decision the tribunal had disregarded the principlesof natural justice. This principle has been made use of in temple caseswhere the courts have given recognition to decisions of Sangha Sabhas.There are however, numerous instances where court has refused to acceptthe decision of a Sangha Sabha. In those cases, the court itself hadto consider and make a decision on every aspect of the case includingthe matters alleged to have been dealt with by the Sangha Sabha. Such
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decisions involved an examination of what may be termed “ pureecclesiastical matters.”
This shows that, although our courts do not function as ecclesiasticalcourts, they have the necessary jurisdiction to deal with ecclesiasticalmatters in the course of proceedings which are before them. There isample authority for the proposition that where the decision on a religiousor ecclesiastical matter is a necessary incident to the decision of a civilright, it is well within the power of this court to deal with such religious orecclesiastical matter. Aysa Oemma v Sago Abdul Lebbe(2l>, Devarakkitav Dharmaratana(22>, Neisammah v Sinnethamby1231. Vide also section 9,Indian Procedure Code. It is undoubtedly on this basis that our courtshave concerned themselves with Buddhist Ecclesiastical law and builtup a body of legal principles relating to Sangika property. Hayley-Lawsand Customs of the Sinhalese , 563.
In this case we must not forget that the present application relatesonly to civil rights. The applicant is seeking enrolment as an attorney-at-law. The petition and other material he has filed show this; and if therewere any doubt on the matter, there is the statement of his counsel thatthe applicant has come before us to claim his civic rights to which everycitizen of this country is entitled. He specifically relied on the provisionsguaranteeing fundamental rights in the Constitution. Thus theecclesiastical issues that arises for consideration are only incidental tothe main issue in this matter, which is a pure civil right. This was then, onauthority, clearly a matter which fell within the jurisdiction of this court foradjudication. There is thus no warrant for this court to refuse to go intothis aspect of the matter on a supposed lack of jurisdiction in the court.
Let me now make a critical comment on the cases relied on by theapplicant. These cases related to decisions of a duly constituted MahaSangha Sabha. There is, however, no indication in the affidavits before usto show that a Maha Sangha Sabha was duly constituted and there hasbeen a decision of such a Maha Sangha Sabha in the present matter.
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Such a decision has certainly not been produced before us. In lieu of it,we have these two affidavits where the decadents has sought to expresstheir own personal views on a matter now before court. The mere recitalin the Mahanayake’s affidavit that he is the president or Chairman of theAmarapura Maha Sangha Sabha, – there is no information before us asto the nature of this institution – is insufficient for this purpose. Theuncertainty in this matter was re-in forced by the statement made by Mr.Prince Gunasekera that the applicant was advised to adopt the precautionof filing an additional affidavit from the other Mahanayaka – his immediatesuperior – because there was some doubt about the authority of theMahanayake of the Amarapura Nikaya over him or over the group towhich he belongs.
Further, an examination of the reported cases relied on by the applicantshows that those were instances where a decision of a Maha SanghaSabha was relied on in a dispute regarding an incumbency or propertyappertaining to a particular set. Those decisions had no wider impactthan that. The matter before us hardly bears analogy to these cases.The present matter can, by no means, be regarded as one confined toone Sect but concerns all buddhists. The Mahanayaka's statementamounts to a public pronouncement on the Dhamma Vinaya of which heis not entitled to be the spokesman or the sole spokesman. This is amatter concerning and affecting all the three Nikayas existing in thiscountry and is also of great moment to all buddhists in this country -both monk and layman. Accordingly, in the face of this decision andwhat transpired here, a Mahanayaka of any other Nikaya might find itdifficult or unwilling to prevent a monk under him from taking advantage ofour ruling however much he may disapprove of it. For, if this court seesnothing incompatible in a monk practicing as a lawyer, while remaining amonk could a Mahanayake be expected to take a monk to task for anact which has been endorsed and given effect to by the highest judiciaryof the land.
There are other infirmities in these affidavits. A perusal of them showsthat they are not confined to statements of fact as required by the law,
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but they purport to express certain opinions on this most complex andcontroversial matter. My opinion gives some indication of the essentiallylegal nature of the issues before us and the problems that could arise intrying to solve them without reference to the laws and the Constitution,and without a consideration of the chequered history of the Sangha.The Maha Nayakas cannot claim that they are in a position to express anopinion on all these matters nor do l think that these matters fall properlywithin their duties or authority. It is moreover highly significant that theMaha Nayakas have relied on the grantha dura as a basis for theirpronouncement. If so, th'e statements must necessarily be of a limitednature, as they stand on the somewhat lesser ideal of mere scholasticismas against the fullness of the Buddha’s real Teaching. These affidavitsare therefore practically valueless as legal evidence. I regret to say thatthey contain nothing but an eloquent articulation of the irrelevant andinadmissible, and it would have been best for everyone if they had notbeen forthcoming. Even if the affidavits were legally admissible for thepurpose intended by the applicant, then I agree with the learned Attorney-General that they could not have been used by the Court without havinggiven Mr. Amerasinghe an opportunity of filing counter material. In myview, the majority erred when it gave no ruling on Mr. Amerasinghe'sapplication in regard to the filing of counter affidavits. There is thus nolegally admissible material on which the court could have determinedone of the main issues in this case, namely, whether the applicant'sconduct is violative of the Dhamma Vinaya. The court of course, did notthink it was necessary in this case to have expert evidence to elucidatethese matters.
Having regard then to my analysis of the legal position on the basis ofthe authorities cited, I am of the view that this application must berefused on one or more or all of the following grounds:-
(1) As a matter of law, on the ground of incompatibility of the twovocations. I think, this court has the power to lay down such aprinciple and every reason for adopting it. The court is entitled to
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do so in the exercise of the powers contained in section 33.The notion that a regulation is necessary for this purpose is entirelyerroneous. In fact, the power to regulate, i.e. the power to makerules and regulations does not include a power to take away aright given by the principal Act. Ceylon Workers’ Congress v.
. Superintendent^ Beragala Estate(24) in any event, since the court'spowers are discretionary, the discretion ought not to be exercisedin favour of the applicant on this ground alone.
On the ground that what the monk is seeking to do is morallyreprehensible. His action has disturbed the moral sense of asection of the public. Accordingly the Court should not lend itsaid or support or approve the conduct of the applicant. It wasMr. Rajapakse’s submission that this monk, while representing
' to the public on the one hand that he is a mendicant monkdependent on alms food supplied by the public intends on theother hand to pursue a worldly occupation which is inconsistentwith what he stands for. This he said was tantamount to a falserepresentation. If this is the situation, I certainly think that thereis an element of bad faith in his conduct. Our courts do notoverlook moral considerations especially when there is a discretionvested in the court. For example, on principle our courts do notenforce immoral contracts or those which are contrary to publicpolicy. This therefore, is eminently a case when we should followthose principles.
On the basis that there would be a violation of the Vinaya ruleswhich the court must recognize and give effect to. The Vinayarules have been referred to and acted on by the courts onnumerous occasions. At the very least, they must be given effectas customary law or placed on the same footing as the rules of arecognized institution or association which the courts are notaverse from recognizing. If there were a rule of the Bar Associationin regard to admissions, I have no doubt that the court would
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have examined and given effect to such a rule. Vide Solicitor-General v. Jayawickrema,{U) where the court looked at certainrules of the Bar Council which, at that time, was in the nature ofa private association. It is interesting to find that in the presentcase the applicant represents two “Vocations" in his own person.Since it is in the capacity of a monk that he is seeking admissionto the profession, the applicable rules, qua monk, must be givenas much relevance as the Bar Association rules. I think, thelearned Attorney-General agreed that these rules can be sorecognized.
On the ground that the applicant had failed or had not been able" to discharge the burden lying on him in this matter. Having soughtenrolment in his capacity as a monk and being governed bymonastic rules and discipline, it was incumbent on him to satisfythe court that his continuing to lead the life of a monk would beno impediment to his practicing as a lawyer. He sought toestablish this by the affidavits which stated that he would not betransgressing his monastic discipline by becoming a lawyer.As I have pointed out earlier, these affidavits were legallyinadmissible for this purpose and should have been ruled out. Ifthis had been done by the court, the application would have failedat that stage. In any event, if the necessity for gong into thataspect of the matter had arisen provided a prima facie case wasfirst made out the proper procedure which should have beenadopted by Court was to call expert opinion. This the majorityfailed to do and I cannot therefore see how the issue can bedecided in the absence of the necessary material which shouldhave been obtained by following the correct procedure. Even ifthe affidavit were considered to be admissible, they are again (forthe reasons stated earlier in this judgment) insufficient andinadequate to discharge the onus that lay on the applicant. Thereis also the disconcerting fact that these affidavits had been filedwithout due notice and were sprung on the objectors withoutwarning. When Mr. Amerasinghe indicated that he would like tofile counter affidavits, the court deferred giving a ruling on hisapplications. At the least, it could be said that the matter is stillat large and it was improper for the majority to have based theirruling on material which was adduced virtually ex parte.
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On the overriding ground of the application of section 6 of theConstitution to this matter. Its effect is manifold. First, as amatter of pure legal interpretation the superior provision of theConstitution must prevail overall ordinary laws that are repugnantto it. Section 6 of the Constitution has this overriding effect oversection 33 of the Administration of Justice Law. Second, theconstitutional provision must necessarily be considered as arelevant factor and given effect to whenever a discretionary poweris vested in us as in this case. Third, its power, as directlyimposing a duty on the Judiciary, must be recognized and giveneffect whenever the occasion arises for doing so. This wouldprohibit the court from giving judicial approval to any conduct thatcan be brought within the ambit of the Constitutional provisions.
For the above reasons I find myself unable to concur in the judgment ofthe majority of this court and I am of the view that the applicant was notentitled to enrolment as an attorney-at-law, and that his application shouldhave been refused. It is a matter of regret that I have to disagree with mybrothers who are at variance with me on a number of issues which, Ithink, can only be decided on the lines set out here. To reassure myself,I have gone over this opinion more than once and every time I: did so Ifound myself adhering to what I have said here with increasing conviction.
I would therefore refuse this application.
Application refused.
By majority decision application to'be admitted and enrolled as anAttorney-at-Law – allowed.
Editor’s Note.- Applicant priest wrote to the Registrar of the SupremeCourt requesting permission to take oaths in robe of a monk. This wasconveyed to his lordship the Chief Justice who stated that the attire foran attorney-at-law is prescribed in the Supreme Court rules, and applicantmust comply. The record does not indicate that he has taken oaths as anattorney-at-law.