007-SLLR-1988-V2-MADAN-MOHAN-V.-CARSON-CUMBERBATCH-CO.-LTD.pdf
MADAN MOHANV.
CARSON CUMBERBATCH & CO. LTD.•
SUPREME COURT
TAMBIAH. J.. L..H. DE ALWIS. J.. SENEVIRATNE. J..
H. A. G. DE SILVA. J.. AND BANDARANAYAKE. J.,
S.C. REFERENCE NO. 2/88.
D.C.COLOMBO 2828/Spl.
JULY 6. 7. 11.12. 14. 15. 18 to 22. 1988.
Court sittings — Are.sittings in Chambers sittings in Public? — Affidavits — Canaffidavits under section 213(3i of the Companies Act No. 17 of 1982 be in theEnglish Language? — Articles 106(1). 24(1) and 125'oT the Constitution —Difference between English and Sinhala texts of the.Constilution — Affidavits ActNo. 73 of 1953.'
The Additional District Judge referred the following questions under Article125 of the Constitution to the Supreme Court:
< 1) Was the interim order issued against the 2nd. 3rd and 7th respondents ina room which is not an open Court on 05 02.1988. a violation of Article 106 ofthe Constitution. .
(2) Is the affidavit filed by the 2nd. 3rd and 7th respondents in accordancewjth the provisions of section 2-13(3) of the Companies Act of 1982. an affidavitthat can be produced before a Court in accordance with Article 24(1) of theConstitution,
Under Article 106 the sittings of every court shall be held in public and ailpersons shall be entitled freely to attend such sittings.
Article 24(1) stipulates that the official language shall be the language of thecourts throughout Sri tanka, and accordingly their records and proceedingsshall be in the official language and "record" (article 24(5)) includes pleadings,orders and other judicial and ministerial acts. The Official Language is Sinhala.
The Supreme Court is vested with sole and inclusive jurisdiction relating to theinterpretation of the Constitution.
■ i
Held: (Senevtratne J. dissenting)
(1) The District Judge shall apply the provisions of Article 106 and decide thequestions'of .whether the sittings were in public and all persons were entitledfreely to attend such sittings.
(2) By virtue of the Affidavits Act No. 23 of 1953 an affidavit can be filed inthe English Language and it does not violate the Constitution. The affidavit filedby.the 2nd. 3rd and 7th respondents under section 213(3} of the CompaniesAct is a valid affidavit which could be tendered to Court.
Cases referred to
Ditwonh ^.Commissioner of Stamps (1899] A C. 99. 105.106
Ludovici v. Nicholas Appu 4 NLR 12.15
Shanmugam v. Commissioner for Registration of Indian and PakistaniResidents 64 NLR 30. 33
– Tasmania v. Commonwealth [1904] I C.L.R. 329
Science House (Ceylon) Ltd. v.IPCA Laboratories Private Ltd. M 987] jSriL.R. 185. 200
Mcpherson v.Mcpher$on 11936] A C. 177
Coomaraswamy v.Shanmugaratna Iyer Vol. I Sri Kantha's Reports 159
H. M. T. Wickremaratne v. Monetary Board of the Central Bank of Ceylonand another S.C. Ref. No. 2/86 — S.C. Minutes of 06.12.1986
REFERENCE to the Supreme Court under Article 125(1) of the Constitution.
Fail Mustapha P.C. with T. Parathalingam. Daya Wettasinghe and-Zainul Luthafifor petitioner.
Dr. H. W. Jayewardene Q.C. with H. L. de Silva P.C.. K. N. Choksy P.C., K. Kanag-Iswaran P.C.,-Dina! Phillips. Nihal Fernando and Anil Tittawella for 2nd. 3rd and7th respondents.
Dr. Colvin R. de Silva.with Edward Deraniyagala. Lyn Amarasuriya. Lalantha deSilva and Kushan de Alwis, for 4th respondent.
Romesh de Silva. P.C.. with Palitha Kumarasinghe and Miss S. Samarasekera forthe 5th respondent.
Rohan Jayatilleke, Deputy Solicitor-General with Miss.Kumudini Kumarasinghe.State Counsel and Miss. Lilanthi Jayawardena, Assistant State Attorney lor theAttorney-General as amicus curiae.
Cur. adv. vult.
I,
SCMohan v. Carson Cumberbatch & Co. (Tambiah J.j
August03,1988
Determination off the Court (Seneviratne' J. dissenting)
.TAMBIAH, J.
i
iThe petitioner mado an appiication.in terms of Sections 210arid 211 of the Companies Act, No. 17 of 1982, seeking, interalia, reliefs against the 2nd, 3rd and 10th respondents and alsothe interim orders set out in the prayer to the petition. The Courtby its order dated 28.01.1988 directed the issue of ah order nisiin respect of'the substantive reliefs sought for in the saidpetition, arid also issued interim orders as prayed for in the saidpetition. The order nisi and interim, orders were served ‘on theabovenamed respondents.
On 02.02.1988, the 4th respondent made an application interms of s.213(1) of the Companies Act seeking, inter alia, aninterim order restraining the 2nd and 3rd respondents fromfunctioning or acting as Directors or in any capacity whatsoever: or iiri any manner howsoever of the 1 st Respondent Company,pending the final orders of Court, in the said proceedings. Thisapplication cameup in the District Court of Colombo, (Court No.5) before Mr Leslie Abeysekara, Additional District Judge, who,according to the journalised entry, directed that, this case becalled before Mr Wimal Dassariayake, Additional District Judge.The reason being that Mr. Wimal Dassanayake had earlier madecertain orders in this case.
. According to the order dated 12.5.1988 delivered by Mr. LeslieAbeysekera.: on 05.02:1988 "the application of the 4threspondent was supported before Additional District JudgeMr. Wimal Dassanayake in his official chambers. The saidlearned Judge made the order in issue also in chambers. Asther;e are several Additional District Judges in Colombo DistrictCourt, more than the available Courts, certain Additional DistrictJudges, conduct their inquiries in their personal chambers." Itwasj-mentioned to us during the hearing that on 05.02.88. therewere 9 Judges of the District Court of Colombo; but only 6"Court Houses" or "Court Rooms". It. was also agreed by allCounsel that on this day. the application of the 4th respondentcamie up for support before Mr.* Wimal Dassanayake who wasseated in a part of the chambers of Court No. 1 of the District
Court of Colombo, where he had his chambers.-
The recorded proceedings of this date show that the 4th and5th. respondents were present* that 4. Counsel with theinstructing attorney appeared for the 4th .respondent: that 3Counsel appeared for the 5th respondent that the proceedingsWere recorded by a Stenographer and an Interpreter was presentto assist the Court: and that submissions were made by SeniorCounsel for the 4th and 5th respondents in support of theapplication and questions were asked by-Mr. Wimal Dassanayakein clarification of certain matters before he made the order that isbeing questioned now.
After hearing Counsel. Mr. Wimal Dassanayake. AbJ.v issuedthe interim order asked, for ex-parte, against the 2nd and 3rdrespondents.
Thereafter, the 2nd. 3rd and 7th; respondents made anapplication under s. 213(3} read,with s. 213 (2) of theCompanies Act and sought the vacation of the s.aid interim order,on the grounds, inter alia, that the sittings and proceedings heldoh 05th February, 1988, in chambers were illegal.and null'andvoid by reason of contravention of Article 106(1} of theConstitution of Sri Lanka. This application was made by a jointpetition in the Sinhala Language, supported by a joint affidavit inthe English Language. To this application, a counter affidavit wasfiled by the 4th respondents. At thejnqiwry. Had before Mr: LeslieAbeysekera, ADJ. the 5th respondent who filed no counter-'affidavit took the objection that there was no valid affidavit insupport of the application as it was not in the Sinhala languageas required by Article 24(1)-of the Constitution and thereforethere yvas no valid application to vacate the said interim order.
.-v* *
The learned Judge in his ofder dated 12.5.1988 sets out therival contentions of parties and states why.it has becomenecessary for this Court to interpret Articles 106(1 )■ and 24( 1) ofthe Constitution. 1
in open Court in terms of Article 106(1). If a trial is held inchambers, all .are hot permitted to freely enter such ajblace. The order made in chambers is a violation of aprovision in the Constitution.
Counsel for the other parties argued that no person isprohibited from . entering this chambers, and on thatoccasion any person could enter the chambers. In theColombo District Court .and in other Courts. Judges veryoften conduct trials in rooms which.are hot Cpurts. Thereis no violation of Article 106(1). 'Therefore, it has becomenecessary to.interpret Article 106(1) of the Constitution."
Further; there is a discrepancy between the English andSinhala versions of Article 106. It is very important that theSupreme Court should consider the. difference of meaningin'the 2 versions.
, An interpretation of the Constitution is necessaryregarding the question whether an-affidavit in Englishcould be produced in respect of an. application unders. 213(3} of the Companies-Act.
Here too there is a discrepancy between the English andSinhala versions of Article 24(1) and "therefore it isnecessary that s. 24(1) be interpreted." .
On 7.6.1988, the .learned Judge, referred 2 questions to thisCourt for interpretation in terms of Article 125( 1) of theConstitution:
"Was the interim order issued against the 2nd arid 3rd'respondents in a room which is not an open Court, on5.2:88, a violation of Article 106 of the Constitution?"
"Is the affidavit filed by the 2nd, 3rd and 7th respondents.in accordance with the provisions of s. 213 (31 of theCompanies Apt of 1982, an affidavittpat can be producedbefore a Court in accordance with Article 24(1.) of theConstitution?,".
All Counsel who appeared before us .have stated that thisCourt coufd proceed on the basis that there is no discrepancybetween the English arid Sinhala versions of Articles .106(1) ofthe Constitution.
Article 106 reads:
The sittings of every court, tribunal or other institutionestablished under the Constitution or ordained andestablished by Parliamentihall subject to the provisions ofthe Constitution be held in public, and all persons shall beentitled freely to attend such sittings.
A Judge or presiding officer of any such court, tribunal orother . institution may, in his discretion, whenever he. considers it desirable—
<a> in proceedings relating to family relations.
in proceedings relating to sexual matters.
in the interests of national security or public safety, or
in the interests of order and security within theprecincts of such court, tribunal or other institution,
exclude therefrom such persons as are not directly'interested in the proceedings therein.
All Counsel agree that it is for the learned Judge to apply the, provisions of Article 106 and.decide the first question that hasbeen referred to us for our determination. We, therefore, returnthe first issue formulated by the learned Judge, to be decided by
him.
We come to the second question that has been referred to usfor our determination:
Article 18 of the Constitution reads: ‘The official language of;Sri Lanka shall be Sinhala." Article 24 (t) reads: "The officiallanguage shall be the language of the Courts throughout SriLanka and accordingly their records and proceedings shall be inthe official language." Article 24(5) defines the term "Record":'Record' includes pleadings, judgments, orders and other judicialand ministerial acts.".The 13th Amendment to the Constitutionamended Article 18.of the Constitution and made Tamil, also anofficial language and gave English ,the status of a "LinkLanguage".
While Mr. Romeshde. Silva. P.C., contended that thpre is adiscrepancy between the English and Sinhala versions of Article24 (1). Dr. Jayewardene, Q.C.. on the other hand, contendedthere is no such discrepancy.•Mr.- Faiz Mustapha. P.C., for thepetitionei;, however, stated in answer to Court that the Tamilversion of Article 24(1) is identical with the English version. Onehas, therefore, to proceed on the basis that the English version isa correct Version.
S. 2T3; (3) read with sub-section (2) of the Companies Act. No.
. 17 of 1982. requires that an application tp revoke or vary aninterim order "shall be, made by petition supported by affidavit."Accordingly, the 2nd, 3rd and 7th respondents fifed a jointpetition in Siphala and a joint affidavit in English to set aside theinterim prder made on 5th February, 1988. The, 2nd and 7th.respondents are Tamils and the 3rd respondent is a Burgher.-When the matter came up for inquiry the learned District Judge .directed the parties to file written submissions and all partiesfiled written submissions in the English Language. Along withtheir written submissions, the 2nd. 3rd and 7th respondentsannexed a Sinhala translation of their original Affidavit tohich wasin the English language.
The definition of " Record", in .Article 24 (5) uses the word"includes". Lord Watson observed in Difwafth v. Commissioner of
Stamps i 1)'include' is very generally used in interpretation
#clauses in order to enlarge the meaning of the words or phrasesoccurring in the body of the statute, arid when it is so used thesewords and phrases must be construed as comprehending, notonly such things as they signify according to their natural import,but also things which the interpretation clause declares that theyshould include." Similarly, Bonser, C.J.. observedih Ludovici v.Nicholas Appu (2), "Now, as I had Occasion to remark before, thewords '[shall include" in a definition clause mean 'shall have thefollowing meaning in addition to their popular meaning’." Weagree with the submission of Dr Jayewardene, QC., that by theuse of the word "includes" in Article 24 (5). the Constitution gavethe term "Record" an extended meaning, in addition to itsordinary meaning that a "Record" is a document kept by Court interms of s.92 of the Civil Procedure Code.
Dr. Colvin R. de ■ Silva and Mr. Romesh de Silva,' P.C.,contended that s. 213 (3) requires an application "by petitionsupported, by affidavit",, and, therefore, the. petition and affidavit'is one pleading document and isK>ne package; that Article 24(1)demands that a pleading shall be in the official language and notin the English language. Mr. Romesh de Silva. P.C., furthercontended, that- a pleading' js a part of "proceedings". Or.Jayewardene. Q.C.; and Mr. H. L. de Silva, P.C:, on the otherhand, contended that the petition is the pleading and that theaffidavit is a document which supports the averments in thepleading; that an affidavit is written evidence bn oath and issupporting evidence and not part of the pleading and thereforedoes not attract the provisions of Article 24(1). Both learnedCounsel further submitted that 'proceeding' is what.takes placejn a. Court; that an affidavit is a document prepared and sworn oraffirmed outside Court and tendered to Court, and is. therefore;not part of "proceeding" in Court.
It is unnecessary for us to consider the validity of tfie rival-submissions of learned Counsel by reason of the view we haveformed in regard to the continued operation of the Affidavits ActNo. 23 of 1953, (C. L. E. Vol. 1. Cap, 18). Nor is it necessary forus to consider the reasoning, of Samerawickreme, J. (with whom4 other Judges agreed) in Election Petition Appeals. Nos. 2 of1977 (Medawachchiya), 3 of 1977 (Kotmale), and 2 Of 1978(Anamaduwa) — (S. C. Minutes of 9.8.1978), vyhich reasoningwas adopted by Soza.-J., in S.C. Appeal Nos.10 of 1981*13/81*(S. C. Minutes of 3.9.1982) and also adopted by Sharvananda,C.J. in S.C.2 of'1986 (S.C. Minutes^of 1.12.1986),.and seewhether the'reasoning Could equally be applied tb affidavits.
S: 2(1) of the Affidavits Act states: "Notwithstanding anythingto the contrary in any other written law, an affidavit required forany purpose whatsoever may be written, and sworn or affirmedin the Sinhala or Tamil or English Language."
Article 168 of the Constitution states —
Unless Parliament otherwise provides, all laws, writtenlaws and unwritten laws, in force immediately before the
t'•
commencement, tbf the Constitution, shall, mutatismutandis, and except as otherwise expressly provided inthe Constitution, continue in force.
' •
Wherever the Constitution provides that, any law, writtenlaw or unwritten law or any provision of the Constitution-shall continue in force until or unle.ss Parliament otherwiseprovides, any law enacted, by Parliament so providing maybe . passed by a majority of the. Members present andvoting.
Article 170defines "existing law" and '/existing written law" tomean "any law and written law, respectively/ in force immediatelybefore the commencement of the Constitution which under theConstitution continue in force."
Dr. Colvin R.'de Silva.submitted that the Affidavits Act wasenacted in 1953 when English was the language of the Courts:that when Article 11(1) of the 1972 Constitution enacted that"the language of the Courts shall be Sinhala throughout SriLanka" the English language ceased to be a language of theCourts: that when'the present Constitution commenced in 1978;the Affidavits Act which permitted an affidavit to be written and. swor.n or affirmed in the English language ceased to be part ofthe existing law. W reason of Article 11(1) of the 19.72Constitution: that the 2nd. 3rd and 7th respondents cannot availthemselves of the provisions of s. 2( 1) of the Affidavits Act.
With this submission, we cannot agree. A Constitution must beread as a whole, and the whole Constitution has.to be examinedwithout giving undue weight to any part, the 1972 .Constitutioncontained a provision similar to Article 168 (1) and (3) of the1978 Constitution, viz.'Article 12 which reads:
12(1) -Unless the National. State Assembly otherwiseprovides, all' laws, written and unwritten, in forceimmediately before the commencement of theConstitution, except such as are specified in Schedule'A' shall, mutatis mutandis,-and.except as otherwise
expressly provided in the Constitution, continue in force.
The laws so continuing in force are referred to in the
Constitution as “existing law".
•
Wherever the Constitution provides that any provision of. any existing written law or of the. Constitution shallr continue in force until or unless the National StateAssembly otherwise provides, any law of the NationalState Assembly so providing may be passed by amajority of the members present and voting.
Schedule 'A' of the .1972 Constitution mentioned the Ceylon(Constitution and Independence) Order-in-Couhcil, 1946 and1947, the Royal Titles Act and contain sections of the RoyalPowers and Seals Act, and these were therefore expresslyrepealed.
"Express repeal of a Statute is usually made by stating thatthe earlier Statute or a particular provision therein is therebyrepealed. Usually enactments repealed are mentioned in aSchedule attached to the repealing Statute. Sometimes theexpressions used in the later Statute for such purposesruns:
'All provisions inconsistent with the Act are repealed. OrAll Acts and parts of Acts in conflict with the provisions ofthis Act are hereby repealed, or All laws and parts of lav*in conflict herewith are expressly rejected'."
(Bindra on Interpretation of Statutes. 7th Bdn. page 902).
" 'Express provision' is provision the applicability of whichdoes not arise by inference" (Per. Lord Radcliffe inShanmugarhv. Commissioner for Registration of Indian andPakistani Residents (3)
On a reading of the provisions of Article 168 of the presentConstitution it seems to us that the scheme or thinking of thedraftsman was that existing laws continue in force unless (1 j theConstitution itself expressly repeals or alters an. existing law. 'There can be no implied repeal, (2) the Parliament, in the future.
by a simple majority enacts a law. repealing or altering anexisting law. As a case of express repeal, we refer .to Article169(1) and (2) of the present Constitution, where there is adirect ;reference to the Administration of Justice Law, No. 44 of1973, and the Article expressly provides that the provisions ofLaw No. 44 of 1973. which are inconsistent with theConstitution are. deemed to be repeated, and that the SupremeCourt established under that law will cease to exist and anyreference in any written law to the Supreme Court shall bedeemed to be a reference to the Court of Appeal.
, An "existing law" has to be express^ repealed if it has to .beeffaced'or its existence wiped put by a specific law enacted byParliament. Otherwise it subsists and continues to remain law.The 1972 Constitution did not contain any express provisionrepealing or in any way altering the Affidavits Act. Nor did theNational State Assembly enact any law repealing or changing theAffidavits Act. The Afct therefore, was in force immediately beforethe commencement of the . 1978 Constitution. The latterConstitution, too contained no express provision repealing oraltering the Affidavits Act! Nor has the present Parliamentenacted a law to repeal or effect changes in the Act. Both •Constitutions and both Legislatures have kept the Affidavits Actalive. The'Act continues to be in operation and*is "existing law"within the meaning of Article 168( 1) read with Article 170 of theConstitution. The 2nd, 3rd and 7th respondents were, therefore,entitled to'tender to Court an affidavit in the English Language.
Accordingly, our determination is that the affidavit filed by the2nd, 3rd and 7th respondents under s. 213(3) of the CompaniesAct is a valid affidavit which could be tendered to Court, anddoes not contravene the provisions of Article 24(1) of theConstitution. Our answer to the 2nd question posed to this Courtis therefore in the affirmative.
The Record is returned to the District Court. We make no orderfor costs.
LH. DE ALWIS, J. I agree
A. G. DE SdVA. J. I agreeBANDARANAYAKE, J. I agree
August 03,19888ENEVIRATNE, J-
The petitioner made a complaint to the District Court, Colomboin terms of Sections 210 & 211 of the Companies Act No. 17 of1962 that the affairs of the 1st Respondent-Company are beingconducted in a manner prejudicial to the interests of theCompany. On this application the District Court made certainorders.,
the 4th Respondent-Petitioner made an application to theDistrict Court on 5.2.1988 in terms of Section 213(1). (2) & (3)of the Companies Act praying for certain interim ordersrestraining the 2nd and 3rd respondents from functioning asacting Directors or in any other capacity in respect of thisCompany or its Subsidiaries and Associate Companies. At a later,stage the 5th respondent supported this application of the 4thRespondent-Petitioner. The 7th respondent later joined the 2ndand 3rd respondents in objecting to the above application of the4th Respondent-Petitioner.■~
The application made by the 4th Respondent-Petitioner cameup on 5.2.1988 in the District Court pf Colombo (Court No. 5)before Leslie Abeysekera, Additional District Judge: He has' minuted that this case be called before the Additional DistrictJudge Wimal Dassanayaka. The reason for this it is said was thatDaSsanayaka, Additional District Judge had earlier made certainorders in this case. One must at this stage take into account how: the above minute would have operated. For this, one has to relyon the practice in the- courts; Leslie Abeysekera. AdditionalDistrict Judge would have announced the contents of his minuteto the lawyers who appeared in this application before him, andthe interpreter would have announced in the court room that thecase is being sent before Diassanayaka, Additional District Judge.However, an accepted fact by both parties is that shortly afterthat the case was called before Dassanayaka. Additional DistrictJudge. The most important factor in this reference, as admittedby all parties, is that at this time Wimal Dassanayaka* AdditionalDistrict Judge had no court room for his use, for the sittings. Hewas sharing a part of the. (I should say an. inner room]
Chambers of the'District Judge Colombo (Court No. 1), alongwith another Additional District Judge Jayasena. BothDassanayaka, .Additional District Judge and Jayasena,Additional District Judge sat in this inner room or part of theChambers of the District Judge on this date. In fact it is revealed,that at the time Dassanayaka, Additional District Judge took upthis matter referred to him, Jayasena, Additional District Judge. had also taken up a matter-for hearing. The part of the Chambersof the District Judge Colombo (called an inner room) used pnthis day by Dassanayaka. Additional District Judge and JayasenaAdditional District Judge was within the Chambers of.the DistrictJudge and had access to it through that part of the Chambersused by the District Judge. It is admitted that one means of entryto the Chambers of the District Judge was through the door ofthe Chambers which opened to the District Judge's Court room,i.e. (Court No. 1). There is reference to another entrance from acorridor, but that is not necessary for this purpose.
The application referred to Dassanayaka. Additional DistrictJudge was.taken up by him in the room which I have describedabove. The proceedings show that a Stenographer was presentand recorded the proceedings. The interpreter must have beennecessarily present. The 4th and 5th Respondents-Petitionerswere present. The 4th Respondent produced the documents WithXhich the application was supported. Two Queens Counsel andSeveral other lawyers had appeared for the 4th Respondent-Petitioner. A President's Counsel with Mr. Romesh de. Silva P.Cand another Attorney-at-law appeared for the 5th respondent.Some papers filed also indicate that about half an hour latercounsel for the petitioner also appeared and took part in theproceedings. The proceedings show that Mr. Navaratnaraja. Q.C..has made some lengthy submissions in support of theapplication. The Court has'asked questions from the learnedQueen's Counsel. Then the Additional District Judge has madethe interim order Draved for and issued notice for 4.3:1988.
The 2nd. 3rd and 7th respondents filed .objections to thisapplication dated 9.2.1988 in terms of section 213(3) of the
Companies Act No. 17 of 1982. As required by this section thepetition containing the objections was "supported by anaffidavit". This affidavit by the 2fid, 3rd and 7th respondents wasfiled in the English Language. The main objection taken by theserespondents to the application was that "the application made bythe 4th respondent was supported in Chambers of the DistrictCourt No. 1 (and not in open court) before the Additional DistrictJudge Wimal Dassanayaka". (Paragraph 5). The consequentialobjection taken in paragraph 8(a) is, as follows:—.
'The proceedings and the order made on 5.2.1988 wereillegal and null and void and by reason of thecontravention of Article 106(1) of the'Constitutidn of SriLanka in as much as the proceedings of ,5.2.1988 werenot field in public".
8(b) — 'The Chambers of the District Judge of Colombo arenot. a place where the public and all persons areentitled to have access or attend"
Due to this and other grounds the Respondent-Petitioners prayedthat the "proceedings and order'made on 5.2.1988 in theChambers of the District Court of Colombo be set aside and/orrevoked and/or declared null and void and of no force or effectin law".
When this matter came up for inquiry before LeslieAbeysekera, Additional District Judge the parties have beenrequested to file written submissions. In the written submissionsthe 2nd. 3rd and 7th respondents urged that the proceedings on5.2.1988 were invalid ‘ as . it violated Article 106 of theConstitution. The 5th respondent .raised the objections that theaffidavit filed , by the 2nd,. 3rd-and 7th respondents, violatedArticle 24 of the Constitution as an affidavit filed in the EnglishLanguage was not an affidavit that could be accepted by theCourt. Leslie Abeysekera, the learned Additional District Judgehaving considered the written submissions by his order dated12.5:1988 decided to make reference to this Court under Article
125 of the Constitution as follows:—
Was the interim order issuer? against the 2nd. 3rd. and 7threspondents in a room which is not an open Court on5.2.1988. ia violation of the Article 106.of the Constitution,
Is the affidavit filed, by the 2nd, 3rd £nd 7th respondents inaccordance with the provisions of section 213(3) of theCompanies Act of 1982, an affidavit that can be producedbefore a Court-in accordance with Article 24(1) of theConstitution?.
This is the reference that has been heard before this DivisionalBench of five Judges. The hearing began on 6.7.1988 andcontinued till 22.7.1988 (except one day on which the Court didnot sit). Before the hearing commenced Dr. Colvin R. de Silva forthe, 4th respondent submitted that he will, raise a preliminarymatter i.e. that the question of interpretation of the Constitutiondid not arise in nespect of item No. 1. referred to this court by theAdditional District Judge. Mr. . Faiz. Mustapha for petitioneragreed with Dr. de Silva on this submission. The learned Queen’sCounsel for the 2nd, 3rd and 7th respondents did not agree withthis preliminary submissions made by Dr. de Silva. As such thehearing commenced on the basis that Dr. de Silva will be heardon this preliminary submission at the stage at which He willaddress court.
After the hearing commenced the court suggested that areference, be made to the Additional District Judge. WimalDassanayaka for his observations and invited the counsel tomake their own "suggestions on which matters such referenceought to be made. All parties filed written submissions on whichmatters reference should be made to the said Additional DistrictJudge for his observations. The court having considered thesesuggestions on 7.7.1988 referred these two matters for theobservations by the Additional District Judge WimalDassanayaka, to wit—".
5th February. 1988. held by Mr. Wimal Dassanayaka. ADJ.,Colombo, in part of the Chambers of Court No. (1) of the. District Court of Colombo. •
. .,r
Could the. members of the public have been reasonablyaware that they were entitled to freely attend the saidproceedings of that date.
The learned Additional District Judge by his letter 8.7.1988 senthis.observations. T will refer to the observations later.
After the observations were received and submissions were. made for. a few more deys the learned Queen’s Counsel fOr the2nd/ 3rd and. 7th respondents also agreed that item No. 1referred to this court by the learned Additional District JudgeLeslie Abeysekera was not a matter that needed interpretation bythis court, i.e. Article 1O6.of the Constitution. Later the learnedQueen's Counsel for the 2nd, 3rd and 7th respondents alsosubmitted that the answers to the queries made by this courtJrom the learned Additional District Judge were ■ his mereobservations and this court should not act on such observations. as if was not evidence in this Reference. The learned counsel forthe 4th respondent submitted that the court had called for theobservations from the learned Additional District Judge and thatthe court must and has a right to take into account these<observations and act on such observations. I must observe that£is a long standing practice of the Superior Gourts to call forobservations of the Judges of first instance on matter? withintheir own knowledge or on matters of record on whichclarifications are required, and when the court receives such'Observations and clarifications it is a long standing-practice ofsuch Courts to' act on such observations and clarifications^ I hold'that this. Court has the power and the .right to take into accountthe observations made by the^learned Additional District Judge.Wimal Dassanayaka and act on them and I will do so. .
Item No. 1. has been referred to. this Court for interpretation bythe learned Additional District Judge due to a difficulty, ininterpreting that article, i.e. a •difficulty in interpreting the twolimbs of Article 106:—
'The sittings of every court……… shall be held in
public,
. and all.persons shall be entitled freely to attend such
sittings".
This difficulty is made obvious by the fact that learned Queen'sCounsellor 2nd, 3rd and 7th respondents addressed this courton the interpretation of these words for nearly 10 days and citedauthorities from Alberta in Canada to England. Article 125 of ourConstitution is as follows:—
'The Supreme Court shall have sole add exclusivejurisdiction ……. relating to the interpretation of the
Constitution".
What is interpretation?
Our Interpretation Ordinance No. 21 of 1901 calls it anordinance "for defining the meaning of certain terms". The
Interpretation Act of 1889 of England calls it "an Act
relating to the Construction of Acts of Parliament". Maxwell onthe Interpretation of Statutes, 11 th Ed; states as follows:—
'The object of all interpretation of a statute is to determinewhat intention is conveyed, either expressly or impliedly, bythe language used, so far as is necessary for.determiningwhether the particular case or state of facts presented to theinterpreter falls within it" (Page 2):.
Crates on Statute Law, 6th Ed. states as follows:—
The cardinal rule for the construction of Acts of Parliamentis that they^shoutd be construed according to the intention.expressed in the Acts themselves". Note 7 —‘In Tasmania v.,Commonwealth (4) on a question as tothe meaning of the Constitution of the AustralianCommonwealth, O'Conner J. said (at page 358):" I do notthink that it can be too strongly stated that our duty ininterpreting a statute is to declare and administer the lawaccording to the intention expressed in the statute itself, inthis respect the Constitution differs in no way from any Actof the Commonwealth or of a State". {Page 66).
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am of the view that Article 106 of the Constitution needs inter-pretation as set out in Article 125 of the Constitution.
REFERENCE NO: 1 —Article 106(1)-
. 'The sittings of every Court, tribunal or other institutionestablished under .the Constitution or ordained andestablished by Parliament shall subject to the provisions ofthe Constitution be held in public, and all persons shall beentitled freely to attend such sittings".
the limb "shall subject to the provisions of the Constitution" isexplanatory in Article 102(2) — sittings under this condition isdescribed as sittings "in Camera". In this matter the court isconcerned with Article 106(1) only. According to the order madeby the Judge, it appears that he has addressed this Court for theinterpretation of the limbs —
"The sittings of every Court shall be held in public,
And all persons shall be entitled freely to attend suchsittings".
According to his Reference the.learned Additional District Jud$shas consulted the . text of, the Constitution in the OfficialLanguage -r- Sinhala and has found a difference in the phrasesin the Sinhala text of Article 106(1) and the English text of Article106(1). It is also for this reason that the Judge has referred tothis Court the interpretation of this Article.
In this context Article 23(1) of the Constitution is relevant—
"all laws shall be made in both National Languages with atranslation in the English Language", and further states that"in the event of any inconsistency between any two texts,the text in the Official Language shall prevail".
As regards the interpretation of the phrase "be held in
public" numerous authorities were cited explaining what ismeant by "sitting in public", and also that it is a fundamentalrequirement that the court shoutd "sit in public"
Before discussing Article 106(1), it is necessary to refer to thedefinition of the word "court" in legislation. The term "court" hasbeen defined in the following Enactments—
(1j) Courts Ordinance No. 1 of 1889. Section 2. .
Civil Procedure Code No. 29 of 1889. Section 5.
Administration of Justice .(Amendment) Law of 25 of 1975.! Section 674(2).
Civil Procedure Code (Amendments up to 1977) Chap… 101 Section 5.
The definition of the word “Court'' in all the above enactments isidentical. I shall only refer to the defirfftion of the term "Court" inthe .Civil Procedure Code (Amendments up to 1977) Chap. 1Q1.
Court means— "a Judge empowered by law to actjudicially alone, or. a body of Judgesempowered by law, to act judicially as abody, when such Judge or body ofJudges is acting judicially".
Thq other matter that has to be referred to are the provisions oflaw as to wherethe court will be held.br sit. These provisions arefound in the following Enactments—
Courts Ordinance. Sections 52 & 53.
Administration of Justice Law No. 44 of 1973, Section 16.
judicature Act Np. 2 of 1978, Section 5(3).and Proviso.
These laws are also, to the same effect. The Judicature ActSection 5(3) states that the court may be held at a convenientplace withinthe judicial district‘as the Minister, by regulationsshall appoint. By Gazette No. 43/4 of July "2nd 1979 theMinister has by regulation determined that the District Court ofColombo may sit at Hulftsdorp. It will be noted that only the placeof sitting is determined, the buildings or its location have notbeen determined, i.e. to.be more explicit it is not determined byregulation that the. District,Court shall sit in Court rooms 1 — 6situated at Hulftsdorpi. In fact* the proviso to Section 5(3}provides for.the Judge — "to hold court at any convenient, placewithin his. territorial- jurisdiction". In addition to the aboveprovisions in the interests of justice the law has provided that thesittings of courts "be held in public". The contents of Article 106is not a new concept brought in by the (1978 Constitution), butit is a concept which has always found its place in our relevantlaws. Public sittings of the courts have been provided for in —
.Courts Ordinance No. 1 of 1889. Section.85.
Administration of Justice Law No. 44 of 1973, Section 7.
(1978} Constitution, Article 106.
Thus to constitute the sitting of ai court three factors arenecessary:— '';*
(T) a Judge empowered by law to act judicially,
the court must sit in a determined place — within a.
District. Division'or Zone,
the sittings of the court must be public sittings. '
Article 106 of the Constitution deals with "public sittings". Allauthorities, both local and foreign show that the meaning ofjthelimb "shall" . . v be held in public" means that the sittings ofthe court should be open court sittings, so that any member ofthe public can attend a court, sitting. The next, limb "and allpersons, shall be entitled freely to at such sittings", furtheremphasises the requirement that the sitting of a .court "shall beheld in public". "Shall be held.in public" further means that anyperson constituting'the public whether he has a particular orspecial interest in the case or not. or not directly interested in thecase, can ettehd court when the court is sitting. "Shall be entitledto freely at such sittings” further means that there can be norestriction or impediments to any person attending a court sittingexcept factors such as the accommodation available in .the court.,or when due to factors set out in Article 106(2) of theConstitution the court excludes people not directly interested in
the proceedings. The opposite of this concept is that the courtcannot usually sit "in camera", i.e. without the . public beingpermitted to attend court except in the instances permitted bythe law. The question that has arisen for interpretation in thisReference No. 1 is.whether in this instance Wimal Dassanayake,Additional District Judge, held sittings which complied withArticle 106( 1}. I will deal with this matter later.
The learned Additional District Judge Leslie Abeysekera has-stated that there is a "difference in meaning" in the English textand the Sinhala text. As pointed out earlier "in the event of suchan inconsistency" the text in the Official Language must prevail.Is there such an inconsistency? The. learned Additional DistrictJudge has particularly drawn attention to the English text
"sittings of every court . shall be held in public" aQd the
Sinhala text ",… a® epararacats® ©Q Son© g&JSsd
There is rio.difference in the rendering set out in the two texts."Sittings, of every court" is the idiomatic rendering in Englishused to describe the holding of a court to hear trials, inquiries,and applications ,etc.. That idiom "Sittings of every court" hasbeen rendered in .the Sinhala text as "ragSan©". which literallymeans-hearing of trials. The learned Additional District Judge hasmisconstrued this phrase and ; commented as . follows:—^ According to the English version what should be held in publicis sittings 6f every court as stated in the Sinhala version of theConstitution is "trials of cases". …… On 5.2.88 in Chambers
was a sitting of court but that , day there was no trial of a case.That day though a judicial function was exercised ordinarily asstated by us there was no trial what'happened was supporting ofan.application exparte and issuing an order in respect of same. Ibelieve that it is very important that .the'Supreme Court shouldconsider the difference of meaning in the English Constitutionand the Sinhala Constitution". The learned Additional DistrictJudge has'fallen into an error in these observations, in that theSinhala text "rag San©" has been literarily translated by thelearned Additional District Judge as "trials of cases". I haveearlier mentioned the English idiomatic meaning "of sittings ofevery court”. The Sinhala idiom for "sittings of court" is
expressed as "ofiBcowa".Thisddiom is an all embracing one. Theexpression "ogpea©" includes hearing of trial cases, inquiriesand hearing of applications etc. The Sinhala version has not usedthe words “5®80" (inquiries), "<5^0® (Applications), but usedwhat I call and all embracing phrase "ogOomcD". So that actuallythere is no difference in the Sinhala text and the English text. Inother instances in this Constitution the Sinhala text uses adifferent phrase to express the English phrase "sittings of theCourt". See Article 132 Sinhala. Article 132 of the Sinhala text isas follows:— "<s$A£o3exiS«6<a etSysffl®". (sittings of the SupremeCourt) — (Marginal Note 132). The S.C. Rules Part 5, Rule 62(1)deals with "suspension of sittings of Courts" Rule 62(1) states asfollows:— .
‘The sittings of the Supreme Courtwill be suspended".
The Sinhala text of Rule 62(1) is as follows:—
ddB® 0x5epeSSOOgj It will be noted that the phrase
"sittings of the Supreme Court" is. rendered in the Sinhala text inthe above instances as "ddB® QxS' andIt appears
that Sinhala text of Article 106(1) "sittings of every court" hasbeen expressed, in the literal sense as "ogjBcoba)" — hearing ofcases or trials of cases. I have set out above the determination,relating to the interpretation of the Constitution". Article 106(1)—Reference Item No. 1. The learned Additional District Judgewill have to relate the facts and circumstances pertaining to thesittings of the court held by Dassanayake Additional DistrictJudge on 5.2.88 to the interpretation of Article 106(1) which ha^been rendered by me above.
REFERENCE NO: 2 — Affidavit filed in English — Article 124"of the Constitution.
The 5th respondent has. taken the objection that the affidavitdated 9.2.88 filed by the 2nd. 3rd and 7th respondents in theEnglish Language is violative of Article 24(1) of the Constitution,and as such'should be. rejected.
Article 24(1) is as follows:—
"The Official Language shall be the language of the courtsthroughout Sri Lanka, and accordingly their records andproceedings shall be in the Official Language". .
The Constitution by the Thirteenth Amendment has now enforcedtwo Official Languages.
'Article.24(5) of the Constitution defines "record" as follows:—
"Record" includes pleadings, orders and other judicial and, ministerial acts".
Submissions have been made by the learned President's Counselfor the 5th 'respondent that this was an application made by the4th respondent under section 213(2) of the Companies ActNo. 17 of 1982, and as such the 4th respondent had filed apetition "supported by affidavit". Section 213(3) — of theCompanies Act No. 17 of 1982, requires the same procedureto be followed in filing objections. As such these respondentshave filed objections "supported by affidavit". The learnedPresident's Counsel strenuously submitted that the petitionsupported . by affidavit are, the pleadings by which thejurisdiction of the court is invoked — the same principleapplied to the invocation of the jurisdiction of the court by theobjector. The' petition and affidavit so filed thus becomepleadings by which.the jurisdiction of the courtis invoked. Thepetition and affidavit constitute one indivisible or inseparablepleading. The learned President's Counsel in support of this,submission relied on the dicta of Bandaranayaka' J — in thecase of Science House (Ceylon)- Ltd V. IPCA LaboratoriesPrivate Ltd.fS). In this case Bandaranayaka. J. dealt with thefunction or I should say the status of an affidavit filed in termsof Section 705 Civil Procedure Code — Chapter L III, ofSummary Procedure On Liquid Claims, and held as fol!ows:-r-"but the plaint must be accompanied by an affidavit. Section705 requires that both must co-exist. So a'person cannot havethe plaint, he presents accepted under Chap. 53 Procedureunless an affidavit is also presented together with the plaint
verifying the claimThe two sections (Section 703 arid
705) are therefore co-related. They are inseparable and must
co-exist: They either exists together, or not at allThis is
.doubtless because the affidavit is the foundation of theaction". The filing of the petition alone will not be Sufficientcompliance with the relevant section 213 Companies Act andwill not invoke the jurisdiction of the court. The learned
President's Counsel submitted that the affidavit of'9.2.88 filed by.these objecting respondents is covered by Article 24(1). in that itwas both the record , and proceedings in the. case for thefollowing reasons:—
It is a part of the pleadings«by which the*jurisdiction of thecourt is invoked.
The affidavit’ was. the. proceedings because it is takencognisance by the Judge. Evert evidence on oath such as theaffidavit which the court considers as evidence conies withinthe term “proceedingis".
As such1 the affidavit becomes a part of the record, whetheras pleadings or as a document of evidence:
Due to.these reasons the affidavit filed had to be in the Sinhafalanguage: The Affidavits Act No. 23 of 1953 on which the 2nd.3rd and‘7th respondents based their right to file their affidavit inthe English Language was-only an "act to enable the affidavitsrequired for any purpose whatsoever to be filed in the Sinhaleseor Tamil Language". This enabling Act was necessary becauseprior to this Act an'affidavit could be filed only in the EnglishLanguage. He submitted that this Act howeyer -does not enablethe respondents to file affidavit in the English Language which isnot the Language of the ‘court. I will deal with this submission,later.
Dr. Colvin R. de Silva for the 4th respondent also supportedthe contention that the affidavit in question comes within Articles24(1) and (5) of the Constitution, and as such is a part of therecord and proceedings, and as such it must be in the OfficialLanguage. Sinhala.
Dr. H. W.’Jayewardene Q C,. for the 2nd, 3rd and 7threspondents contended that the affidavit cannot be considered apart of the record and proceedings in terms'of Articles 24(1) and
of the Constitution. His submission was that the affidavit wasnot a part of the pleadings. It is in fact documentary evidenceprepared outside court and filed in the Court. Both H. L. de SilvaP.C .and Dr. Jayewardene Q.C. submitted that the function of the
pleadings was to.invoke the jurisdiction of the court. H. L deSilva P.C further submitted that the affidavit filed is neither apleading nor a-document as contemplated in Article 24(2).Halsbury. Laws of England — 4th,Ed. Volume 36. Part I, Page 3is as follows:-^ 1. "Meaning of Pleading" — the term "pleading" isused in civil cases to denote a document in which a party, toproceedings in a court of first instance is required by law toformulate in writing his case or part of his case in preparation forthe hearing".
Dr. Jayewardene Q.C:, and H. L de Silva P.C relied heavily onthe. submissions that by virtue of the Affidavits Act No. 23 of1953, an affidavit can be filed in the English Language and itdoes not violate the Constitution. The contention.was that firstlySection 12(2) of the (1972) Constitution and later Article 168( 1)of the present Constitution kept alive the Affidavits Act as theParliament has not otherwise provided..
. This argument was countered by Dr. Colvin R. de Silva, andRomesh de Silva P.C. These learned Counsel submitted thatwhen Article 12(2) of the (1972) Constitution made Sinhala theLanguage of the Courts, the Affidavits Act which permitted anaffidavit to be filed in court in the English Language was to thatextent repealed and revoked; Section 24(1) of the (1978)Constitution which made Sinhala the Language of the Courtshad the same effect. As the (1978) Constitution is the "supremelaw", that part pf the Affidavits Act must be considered to bedirectly repealed by the provision for the Language of the Courtsto be Sinhala: If not directly so .repealed at least it must beconsidered to have been repealed by implication. The Legislaturewhich provided in Article 24(1) (1978) Constitution "that theOfficial Language shall be the Language of courts throughout SriLanka", i.e. Sinhala, cannot be said to have also intended,to leavea gap for affidavits alone to be filed in the English Language-After a careful consideration I entirely agree with the submissionthat the provision of the Affidavits Act. enabling to file an affidavitin English, has no effect whatever in respect of the Language ofCourts.-, The derogation of Article 24(1) .of the (1978)Constitution which, is a part of the "supreme law" of the landcannot be permitted by an insignificant act called.the Affidavits
Act. All affidavits filed in court have to comply with Article'24(f)of the Constitution and must be filed in the Official Language.Section 439 of the Civil Procedure^Code provides fpr the mannerin which a person illiterate in the Sinhala Language can make anaffidavit in the Sinhala Language. In fact the 2nd respondent hasfiled a subsequent affidavit in these proceedings in the SinhalaLanguage complying with Section 439.
The determination in respect of item 2 of the Reference is thatthe affidavit, filed in the English Language by the 2nd, 3rd and7th respondents cannot "be produced, before the court inaccordance with Article 24(1) of the Constitution," as- it isviolative of this Article.
Article 125 of the Constitution provides for the interpretationof the Constitution by this court and Article 125(2) of theConstitution enables this court to "make any such consequential,order as the circumstances of the case may require".
I have given my anxious consideration as to whether I shouldmake such consequential orders as will flow from the twodeterminations I have.made. The consequential order if any inrespect of Reference No. 1 — can be based only on questions offact and law. A consequential order in respect of thedetermination on Reference No. 2 will be an order based purelyon the legal consequences of the determination.
As regards the facts pertaining to Reference No. 1 i.e. whetherthere was a public sitting of the court of Dassanayaka, Additional. District Judge on 5:2.88, I will record only the undisputed factsrevealed in this Reference.
(1) The learned Additional District Judge Leslie Abeysekerain his reference dated 12.5.88 has made thesefollowing observations:—
(a) the order was not supported and issued in openCourt but in the Official Chambers. (I have describedearlier the situation of the Chambers used by WimalDassanayaka, Additional District Judge, based on theadmissions made by the parties)
(b) as there are more Additional District Judges than thenumber of available court ropms certain AdditionalDistrict Judges conduct their inquiries ih Chambers.
Counsel submitted that this violated Article 106 of theConstitution as the proceedings were not in open Court.
The answers to the questions posed to Wimal Dassanayaka.Additional District Judge forwarded by him are as follows:—
members of the public were entitled freely to attend theproceedings in the above case heard by me in part of theChambers of Court No. 1 of the District Court ofColombo.
because of the fact that Mr: Leslie Abeysekera who calledthis case in the open Court No. 5 on 5th February 1988had mentioned that this case will be heard by me anddirected the parties before me. the members of the publiccould have been reasonably aware that they were entitledto freely attend the said proceedings of that date".
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I must also add another well known and accepted fact which hasbeen mentioned in these proceedings. That is. that not only inColombo, even In some outstation Courts there are more Judgessitting than the number of court rooms available. The Kandycourts is a fine example of this situation. Some court buildingshave been burnt and Judges have to sit in improvised courtrooms. In most of the courts there is only one court room as inthe case of a Combined Court, two court rooms, where there is aDistrict Court and a Magistrate Court. Due to the overload of thework in the Courts, Supernumerary Judges are attached to theCourts. The question of accommodation for court sittings alsoarises when a Judge who has gone on transfer comes back tothe former station to hear part-heard cases. There are instanceswhere.both the District Judge and Magistrate who have gone ontransfer have come back to the station on the same day to hearpart-heard cases. It is most common and a regular occurrencefor courts to sit in Chambers, in a verandah, or any enclosedpartitioned room when more Judges than the number of courtrooms available have to sit. From time immemorial this practice
has prevailed, and I must with some reservation state, that I havehad this experience for-nearly 1? years when. I held a post of aDistrict Judge hr a Magistrate* When a .court is held in animprovised Court-room, say the Chambers, all parties andlawyers representing them are present and.who ever wishes tofollow proceedings have a right to attend and they do attend. If acourt is held in the Chambers, at that time temporarily orprovisionally it becomes an open court room. Any interpretationof Article 106(1) must be made in this background, taking intoaccount the situation and'circumstances which prevail in thiscountry, pertaining to the functioning of Courts. In this countryArticle 106 cannot operate on an utopian open court principle.Dr. Colvin R. de Silva made a submission which I fully approve.He submitted that "the circumstances must modify application ofprinciples. A principle cannot be reduced to an absurdity”.
The Additional District Judge Wimat Dassanayake who heardthis application , specifically states that members of the publicwere entitled .freely to attend the proceedings.. This .does notnecessarily mean.thaUhe public were present but it necessarilymeans that there was no bar or impediment tQ the presence ofthe public meaning.any person who wanted to be present whenthis application was taken up. In the case cited Mcpherson v.Mcphersonf6) it. has been decided, as follows:—.'The actualpresence of the public, is never necessary; on some occasionsthere may be no members of the public available, to attend; but(the court must be open to any who may present themselves foradmission” In thijj matter which is under Reference; to this Courtneither a party to this case, nor any person from the public hascomplained that he was kept away from the court sittings, i.e.that the court sittings were not open to him. This application inmy view, is a devise by the 2nd. 3rd and 7th respondents toovercome the order made on 5r2.88. The above observationswere made by me in the public.interest and in the interests.of themembers of the. original court judiciary who have to functionoften under miserable conditions.
In terms of Article 4(c). of, the Constitution "the judicial, powerof the people shall be,exercised by Parliament through courts. . Courts have sat in this manner from time immemorial andthe "people" who created the courts both under, the (1972)Constitution and under the (1978)-Constitution have not madeany complaint in any instance that the court sittings were not inpublic. A few Company Directors against whom an order hasbeen made has thought it fit to make this complaint as a deviseto overcome the adverse order of 5.2.88. All facts indicate thatDassanayaka Additional District Judge held the sittings of thecourt in public on 5.2.88. '
As regards the question, whether I should make aconsequential order in terms of Article 125(2); there is precedentfor such a course of action. Both precedents have been createdby no less a person than the former Chief Justice when he wasonly Sharvananda. J. Sharvananda, J. made consequential ordersafter a determination under Article '125 in the case ofCoomaraswamy v. Shanmugaratna Iyer, W In this determinationhe held that pleadings can be filed in the Tamil Language in theDistrict Court of Colombo and directed the Additional DistrictJudge, to accept the pleadings. The caser of H. M. TWickremaratne v. Monetary Board of the Central Bank.of Ceylonand another (&) was a Reference by the Court of Appeal to theSupreme Court under Article 125. Sharvananda, J. held that an>application to the Labour Tribunal can be made in the EnglishLanguage, and set aside the order of the President. Labouri Tribunal rejecting an application made in the English Language.
•The consequential order made was as follows:^
* f .
. 'This court sees no useful purpose in remitting the case to theCourt of Appeal. It makes the following consequential order. Theorder- of Labour Tribunal is- set aside and record remitted toLabour Tribunal with a direction to try the application early".Following these eminent precedence under Article 125(2) of theConstitution I make the following consequential orders— .
To reject the affidavit filed in the English Language by.the2nd. 3rd and 7th respondents.
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In the circumstances of this Reference no order is made forcosts.
In making this order I have respectfully, but without regrets,dissented from the majority view of this Bench.