002-SLLR-SLLR-1983-1-VISUVANAGAM-AND-OTHERS-v.-LIYANAGE-AND-OTHERS.pdf
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W9V*AMNGAM AMD OTHERS
v.ttVANAGE AND OTHERS
Ho. (t)
flBPHEMB cans,
samarakoon, Q.C., C.J.,
. SNARVANANDA, J., HANASWIDEBA, J.,NSMALARATNt, J., BATWATTE, J.,SOZA, J.( RANASIMGKE, J.fABOtJL CABER j£v AND HODR*SO, J.S.C. APPLICATION NO„47/6*3,September 8,9,19,22,23,
26 to 30,1983,
Oefeobac 3 to 5, 1983.
Stseth Amendment to the Const i tec ton – fe the oees. monthtime limit foe taking oaths mandatory or directory? -Computation of one month – Interpretation of autatis -mutandis clausa – Mon compliance by the judges – Did theyaeoae to hold office? – Article IS?A (7) read withArticle 1HS and 169 (12) – Time limit for the deeisien -Whether mandatory or directory? Article 126 (5) – Article35- Proceedings – Oaths and Affirmations Ordinance. –
Section 12. and j^ection 5 of the Judicature Act.
In purported compliance with Article 157 A (7) readwith'. Article 16$ and 169 (12) of _the Constitutionas amended by the Sixth. Amendment which came intoforce on 8th August 1983, the Judges of the SupremeCourt and Court of Appeal took the oath set out inthe Seventh Schedule to the Bill before/ anotherjudge of the Supreme Court the . Jhdges of which are
. 204Sri Lanka Law Reports[1983] 1 Sri LR.
also ex officio J.Ps in- terns of section 45 of theJudicature Act,well within the tine limit of onemonth stipulated.in the Bill and the Act.
In the course of hearing application Ho. 47 of 1983on September 8. 1983 the question arose whether thejudges had nade sufficient compliance with therequirement of Section 157(A) -of the Constitutionthat the judges of the Supreme Court and the Courtof Appeal shouldtake their' oathsin terns ofthe
Seventh Schedulebefore the President. Thesittings
were thereupon adjourned..
On the 15th September 1983 all the judges .. receivedfresh letters of appointment and took their oathsunder the 4th and 7th Schedules afresh. On re-sumption of the sittings the question arose whetherthe hearing should be de novo or merely continued.The State argued that proceedings should be started'de novo becausethe judges hadceasedtohold
office on 9thSeptember , 1983and hadbeen
re-appointed afresh on 15th September , 1983. Thepresent bench of nine judges was constituted tohear this question.
The questions for determination were whether;
the Jodges of the Supreme Court., and theCourt of Appeal ceased to.hold .office in termsof the Sixth Amendment to the Constitution;
the requirement in Article 126 of theConstitution that a decision . be . made withintwo months of the filing of. the petition ismandatory or -directory. ;
. the President's act . of making a freshappointment of the Judges was an executive actnot questionable in a Court of Law;
the Court is precluded from investigating
Viauvalingam vs. Liyanage.205
' matters that happened prior – to the freshappointaants made on the 15th September*
,Reld(Ranasinghe.j .and Rodrigo,Jidissenting):
The principles of interpretation thatgovernordinary law are equally applicable tothe provisions of the Constitution. For the.purpose of deciding whether a provision in aConstitution is mandatory one must have regardalso to the alas* .scope and object . of theprovision. The mere use of – the word "shall"does not necessarily make the provisionmandatory. The provisions of Article. 157(a)sub-article.7(a) of the Sixth Amendment which
requires.the oath prescribed therein to betaken and subscribed before such. person orbody if any as is referred to in the article.namely before Sis-Rxeellency the President , is
-directory and default dogs not attract thesanction prescribed by Article 165 of theConstitution.
Article 126 (5) of the Constitution whichstates, that the Supreme Court shall hear andfinally dispose of the application made underthat Article within two months of th.s filingof such petition is directory only and' not
mandatory and f ailure by the-. Supreme Court to-dispose of the application within the pre-.scribed period will -not nullify the petitionor the order..
Actions of the executive are not above thelaw and certainly can be questioned in a Courtof Law. Article 35 -of the Constitutionprovides only for the personal immunity of thePresident during his tenure of office fromproceedings in any Court. The President' cannot; be summoned to Court to justify his actions.But that is a far cry from saying that the
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[Mem Sri M.
9H kmttea kaw Repofti
President's acts cannot be examined by a Courtof tew. Though the President is kswae fromproceedings in Court a party who invokes theacts of the President in his support will hareto bear the burden of demonstrating that suchacts of the President are warranted by law*the seal of the President by itself rill notbe sufficient to discharge that burden.
(Per Samar&hoon, C.J.)
A month in terms of section 3 of the inter-pretation Ordinance means "calendar month". Acalendar month is reckoned sot by counting , thedays but by looking at the calendar. The space.of time from a day in one month to the daynumerically corresponding to that day in thefollowing month is a calendar month.
(-5'} The phrase mutatis mutandis means withaccessary altecahdoas’-in point of detail.
On application of the principles governingthe interpretation .of * phrs s8 of mutatismutandis, the requirement to take the oathbefore the President is aot mandatory butdirectory.
The requirement to take the oath is termsof the Seventh Schedule within – one month ofthe date.of the coming into fierce of the sixthAmendment was mandatory but this whs compliedwith and therefore the judges did not cease tohold office.
eases referred to:
Ramhari vs, Nilmoni Das A,I,R, 1952 'Calcutta.184, 186,
State of U.P. V BabuRam A,I,R. 1961 (SC) 765,
Touriel vs. Internal Affairs Southern Rhodesia' (1946) S.A,L,R, (A.D.) 535, 544.
4-—
Vtsuvalingam vs. Liyanago
207
Motilal V. Comtissioner of Income TaxA.I.R. 1951 Nagpur 224.
K.H. Works V. I.T. Commissioner- A.I.R •.1953 A.I.R.1953 Punjab 300.
BurneV. Munisamy 21 N.L,R. 193? 195
The Highland Tea Company of CeylonLtd..,V. Jinadasa 35 C.L.W. 47.
Dodds V. Walker[1981] 2 All. E.R. 6G9H.L.
Idssandea V. Bosch Lid. [1940] A.Co ■412^ [1940] 1 All ER 405, 412.
(iQ)Evans V. B&rtlcm [1937} 2 All ER 646,
– '
Hippon Monkwa Kabushiki Kaisha VDawson’s Hank Ltd. [1935] 1 LL L R,147, 150,
3mrJc of England V, Cutler [1908] 2 KB208,234.
Marit:imc Electric Co.Ltd*, V.GeneralDiaries Ltd.,[1937] A.C. 610.
Southend-on-Sea Corporation V. HodgsonLtd , [1961] 1A11 ER page 46% [1962]
1 Q.B 416o
Johnsmi V. Moraton [1978] 3 All ER 37,47, 49o
Hunt V. Hunt (1862) 31 L.J. Ch. 161,178.
'(17)National Westminister Bank Ltd. VHalesowen Press Works Ltd. [1972]
1 All ER 641,652
(18)Burton V. United States 195 US 205
(19/Customs & Excise Commissioner V. HebsonLtd. [1953] 2 Lloyds Lav Rep. 382.
Society of Medical Of fibers of. Healthv.Hope [1960] 1 All ER 317.
N.W. Gas Corporation v. Manchester Cor-poration [1963] 3 All ER 442.
Velch V, Nagy [1950] 1KB 455.
Basheshar Nath V. Commissioner of- Income Tax AIR 1959 SC 149.
208-
[1983J1 Sri UL
Sri Lanka Law Report
Ram Gopal V. National Housing Cor-poration AIR 1969 Allahabad 278.
Bhaskar Moharana V. Arjun Moharana AIR1962 Orissa 167.
C26)Kushi Ram Raghunatk Sahai V. Comm-issioner of Income Tax A.I.R. 1953(Punjab) 300.
Touriel V. Minister of Internal AffairsSouthern Rhodesia SALR(1946)AD 535
The Liverpool Borough Bank V. Turner(1860) 30 U Cb. 379.
In re C.Pi Motor Spirit Act 1939 A.I.R..4 Fed. ct.p. i9 3
Kunasingham V. Pbpnambalam 54 NLR 36
Imperial Tea Company Ltd.* V. Aramady25 N.L.R. 327.
Scadding V. Lorant (1851) 3 H.L.C. 418s10 ER 164
R.v. Bedford Level Corporation (1805) 6East 356. 368.
Bhaskara Pillai V. The State ofTravancore Cochin 5 D.L.R. (Tracv -Cochin) 382 (1950)
Ba Bussche V. Alt (1870) 0 Cb. U. 286(CA)
S.Nadesan Q.C. with S. Mahentbiran And S.H.M.Reesea for petitioners.
S. Aziz* Deputy Solicitor General with P.Karunaratne, S.C.for 1st, 2nd and3rd
respondents.
Cur. adv. vult.
October 20, 1983.
SAftAARAKOON, C. J.
Here is a classic example oft±e
uncertainties of litigation and the vicissitudes ofhuman affairs. The annals of the Supreme Court donot record such a unique event and I venture to
'Visuvatingam its. Uy&ntge (Samarvkoon. C. If
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f ' •
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+
hope, there never will be ..such an event in the.
pears to come. It behoves me therefore to set outin detail the events that occurred in their
chronological order.
On the 29th July 1983 the President of theRepublic forwarded to the Chief Justice eightcopies of a Bill entitled "Sixth Amendment to theConstitution" which the Cabinet of Ministersconsidered urgent in the national interest in termsof Article 122(1) of the Constitution. The SupremeCourt considered this Bill on the 3rd August andtendered its advice on it to the President and theSpeaker. This Bill was passed by Parliament whth.some amendments and was certified by the Speaker onthe 8th August. Each of the Judges of the SupremeCourt took the oath set out in the Seventh Scheduleto the Bill before another Judge of the SupremeCourt. Similarly each of the Judges of the Court of-Appeal took the said oath before another Judge ofthe same Court. At this juncture I might mentionthat the Judges of the Supreme Court and Court ofAppeal are ex officio J.Ps. in terms of section 45of the Judicature Act. The oaths of the Judges ofthe Court of Appeal were taken on dates prior tothe 4th September, 1983, and the oaths of theJudges of the Supreme Court were taken before' 31stAugust, 1983. They were all well within the timelimit of one month stipulated in the Bill and theAct. I
I must now go back a few days in point oftime. Ob the 22nd July, 1983, the Petitioners inthis case (Application No. 47 ai 1983) institutedthis application against the Respondentscomplaining of an infringement of their fundamentalrights guaranteed by Article 14(l)(a) and (b) ofthe Constitution. This application was taken up forhearing by a Bench of five Judges of this Court on8th September, 1963. The argument was not concludedon that day and was resumed on the next day.
210,
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[198311 Sri LR.
Counsel for hne Petitionerswas making : his
submissions when one of my brother Judges who wasreading a copy of the Act which had: reached/us two.days earlier brought it tc uny. notice , that the.provisions of section 157 A of the Act• contained arequirement that • the Judges of .the,; Supreme >■< Courtand the Court of Appeal should take. their 'oaths interms of the Seventh Schedule before, the ..President-which in fact had not been done by any. . of theJudges. The Judges of bothCourts . therefore
considered this matter andtwrote to. thei President;'; .inter alia that in their, opinion the.'period of one,,month expired at midnight on the same. day. (i;ei the9th.September) and that they were thus prepared to.take their oaths. There was no reply from the .President. However» I was .informed by the Ministerof Justice that he had contacted the President onthis matter and he had been tolo that the Presidenthad been advised by the Attorney-General that theperiod of one month had expired on the 7th. In . the; 'result no oath could be administered. On Monday the12th I was informed that the Courts of the Supreme 1Court and Court, of Appeal and the Chambers of allJudges had been locked and barred and armed policeguards had been placed on the premises to preventaccess tc- them. The Judges had been effectively;locked out. : 1 therefore cautioned some of mybrother Judges, who had made ready toattend
Chambers that day not to do so, I referred to thisfact in my conversation with the Minister ofJustice on the morning of Monday the 1.2th and hewhile deprecating it, assured;me that he had notgiven instructions to the police tc take such action. I was made aware on Tuesday that the guardshad been withdrawn. This matter was referred to inthe ‘course of :the argumentand theDeputy
Solicitor-General informed the Court that ie wasthe act of a "blundering enthusiastic bureaucrat."He apologised on behaif- of the official and.unofficial Bar. On the Xr.fct day of hearing theDeputy Soli* i torwithdrew the apology and
SC' Visuvalingam vs.~uyanage JSamarakocrt, C. JJ2i2
substituted instead an expression of regret. Theidentity ' -of the blundering bureaucrat was notdisclosed, to us. However his object was clear -that was to. prevent the Judges, from asserting theirrights. X must now revert to the chronology ofevents.. On the 15th September all Judges of theCourt of Appeal and Supreme Court received freshletters of appointment commencing 15fch September.Two oaths were also' administered to each. One wasthe oath of office in terms ox the Fourth Schedule-to the Constitution and the other was the oath interms of the Seventh Schedule to .. the SixthAmendment.
The Bench of five Judges then sat on the19th September to hear this application. Counselfor the . Petitioners vehemently objected toproceedings de novo and contended that proceedingsmust continue from where it stopped on the 9thSeptember as the Judges h3d not ceased • to holdoffice. I considered this a matter of the greatestimportance and therefore- referred ail points indispute to this Full Bench of nina Judges. Thefollowing issues were raised for decision
Did the Judges of the Supreme Court and theCourt of Appeal cease to hold office in termsof the Sixth Amendment to the Constitution?
Is the requirement in Article 126 of theConstitution, that a: decision -be made withintwo months of the filing, of the petitionmandatory or directory?
Is the President's act of making a freshappointment of the Judges, an executive act notquestionable in a Court of iav?
Is this Court precluded from investigatingmatters that happened prior to the freshappointments made on the 15th September? –
212.. . Sri banka Low Reports ■[1983] 1 Sri LR.
U
Issues 3 and A were raised, as preliminaryjections by the Deputy Solicitor General, but we
decided to hear all issues and make one finalorder. The hearing on these issues commenced on the22nd September which is the final date for decisionif the provisions of Article 126(5) are mandatory.I shall now proceed to deal with the abovementioned issues.
The first question to be decided is whether,the Judges of the Court of Appeal and the SupremeCourt ceased to hold office as a direct result ofthe failure to observe the provisions of Article157A of the Sixth Amendment read with Article165 of the Constitution. The relevant provisions ofArticle 157A read as follows:-
”(1) No person shall, directly or indirectly,in or outside Sri Lanka, support, espouse,promote, finance, encourage or advocate theestablishment of a separate State within theterritory of Sri Lanka.
No political party or other association ororganisation shall have as one of its a&ma orobjects the establishment of a separate Statewithin the territory of Sri Lanka.
(7) Every officer or person who was oris required by, Article 32 "Or Article 53,Article 61 or Article 107 or Article 165 orArticle 169(12), to take and subscribe or tomake and subscribe . an oath or. affirmation,every member of, or person in the service of,a local authority, Development Council,Pradeshiya Mandalaya, Gramodaya Mandalaya orpublic corporation and every attorney-at-lawshall –
SCYismratihgam vs. Uyanage . (Samarakoon, C. J.)223
1-—————■
L. (a) if such officer or person is holding -office on the date ot coming into force ofthis Article, make and subscribe, or take andsubscribe, an oath or affirmation in the formset out in the Seventh Schedule, before suchperson or body if any, as is referred to Inthat Article, within one month of the date onwhich this Article comes into force;
if such person or officer is appointedto.such office after the coming into force ofthis Article, make and subscribe or take aadsubscribe, an oath or affirmation, in the formset out in the Seventh Schedule, before suchperson or body, if any, as is referred to inthat Article, within one month of hisappointment to such office.
The provisions of Article 163 and Article169(12) shall, mvtatis mutandis apply to, aradin relation to, any person or officer whofails to take and subscribe, or make and
subscribe, aii oath or affirmation as requiredby this paragraph".
Article 107(4) referred to in sub-article (7)stipulates that a Judge of the Supreme Court orCourt of Appeal shall not enter upon his duties ofoffice until he takes and subscribes an oath interms of the Fourth Schedule, before the President.
‘ Article 165(1)of the Constitution reads thus-
"Every public officer, judicial officer andevery other person as is ' required by theConstitution to . take an oath or make anaffirmation on entering upon the duties of hisoffice, every holder, of an bffice required,under the existing law to take an officialioath and every person in the service of everylocal authority andofevery public
214Sri Lanka Law Reports[1983] 1 Sri LR.
corporation shall take, and subscribe the oathor make and subscribe.the affirmation set outin the Fourth Schedule, Any. such publicofficer,judicial officer, person or holder ofan office failing to take and subscribe' suchoath or make and subscribe such affirmationafter the commencement of .the'Constitution onor before such date as may be. prescribed bythe Prime Minister by order published in theGazette shall cease to be in service .or holdoffice,"
It is contended that the failure of the % Judgesto take and subscribe their’ oaths : before thePresident attracts the sanction set out in Article165 and thereby they ceased to hold officej It wassubmitted by the Deputy Solicitor-General that thiswas a mandatory provision^ while Counsel for thePetitioners contended that this was merely .directory.;
It is said that as a general rule"constitutional provisions are mandatory.unless byexpress provision or by necessary implication, adifferent intention is manifest. Some cases^even goso far as to hold that all constitutionalprovisions are mandatory",( Bindra – Interpretationof Statutes Edn 5 p. 860. ). But this.proposition istoo widely- stated.- No doubt a Constitution 'isparamount law, to the. authority of. which -.allsubordinate laws, are, . and • .indieed iaust be,referable. As such there is a bias 'towardscommand.But over the years, this rigid interpretation hasgiven way to a broad and liberal approach. AConstitution is a. "living and organic thing" ( . perGwyer, C.J. In re Motor Spirit Act (29).It embodies"the working principles.for practical; Government"and its "provisions ! cannot be .interpreted andcrippled by .narrow technicalities" per Mukharji , J,in Ramhari vs.Nilmoni Das • (1)., The principles ofinterpretation that govern ordinary law are equallyapplicable to the provisions of a Constitution. For
-SC.Visuvalingam vs. Liyanage..(Samarakoon, C. J.). 2t$
-] ■ ■ . . .
.the purpose of deciding whether a provision in a.Constitution is mandatory one must have regard alsoto the aims, scope and object of the provision. Tbe.mere use of the word "shall" does not necessarilymake the provision mandatory. Subba Rao,J. in thecase of State of U.P. vs. Babu Ram (2) stated the■position thus-
"When a statute used the word ’shall’, primafacie , it is mandatory , but the Court mayascertain the real – intention of thelegislature by carefully attending to thewhole scope of the statute. For ascertainingthe real intention of the Legislature theCourt may consider, inter alia, the nature andthe design ofthe statute, andthe
consequences which would follow fromconstruing it the one way or the other, theimpact of otherprovisions wherebythe
necessity of complying with the provisions inquestion is avoided, the circumstance, namely,that the statute provides for a contingency ofthe non-compliance with the provisions, the-fact that the ^on-compliance with theprovisions is or is not visited by somepenalty, the serious or trivial consequencesthat flow therefrom, and, above all, whetherthe object of the legislation will be defeatedor furthered."
The sole object of the Sixth Amendment is to.prohibit the violation of the territorial integrityof Sri Lanka and thereby to preserve a UnitaryState. With that end in view it imposed penaltieswhich are set out in Article 157A (3)(5) and (6) ofthe amendment. There was a category of officers andpersons who were required by the Constitution totake an oath in terms of the Fourth. Schedule. Theirallegiance to a Unitary State was compellable.Therefore 157A(7) required them to-take an oath . interms of. the Seventh Schedule within a month of theArticle coming into force on pain of losing the
216
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– office they hold. These are no.. doubt . mandatoryprovisions. If they are not o;hey?d'fche wholepurpose of the Sixth Amendment **ai3r -be : brought, tonought. But it is argued that the provision ' whichrequires the oath to be ta^en.beJbrd a particularperson is also mandatory, and that the Judges musttake their oaths before the President. A clue tothis problem is to be found in Article 165( 1) whichmust be read mitatis mutandis with Article 157A(7).The Deputy Solicitor General stated that the onlypertinent portion of Article 165(1) is that anofficer shall cease to hold office. He submittedthat the mutation must be done in this manner -delete all the words in Article 165(1) except thewords "failing to. take and subscribe such oath ormake and subscribe such affirmation" and the words"shall cease to be in service or hold office" andfor those words that have been, deleted substitutethe.words."Any such person or officer". So-that themutation results in the following article –
, "Any such person or officer failing to takeadd subscribe such oath or make and subscribesuch affirmation shall.cease to he in serviceor hold office."
1 cannot agree. This is not- a mutation but – amutilation of Article 165. The major part ofArticle. 165(1) is thereby abandoned. Mutatismutandis means "with necessary alterations in pointof detail" (Wharton's Law Lexicon). The precisesignificance and the limits of the effect thatshould be given to the words was set out in thecase- of ' Tourdel vs. Internal Affadits SouthernRhodesia-(3) as follows:-
"Though the phiase nnutatismutandis is notinfrequently used in statutes and in otherlegal documents, there seems to be a dearth ofauthority as to its precise significance, andthe limits of the effect which should be given
SOVisuvalingam vs. Ltyanage (Samsrakoon, C. J.iBH
to it. 'mutandum', being the gerundive form ofthe Latin verb .auiort is, according to themeaning given to the grauanatical. term'gerundive' in the Oxford 'New EnglishDictionary','a verbal adjective, of the natureof a passive participle, expressing the ideaof necessity or fitness'. The question,therefore, arises whether, in deciding as tothe effect of the expression 'mutatis mutandis*the test to be applied for the purpose ofascertaining in any particular case, whet' are .'mutanda' is 'necessity' or 'fitness'. I thinkthe answer to this question must be thatnecessity is the test, and that considerationsof fitness are not sufficient to justify achange, as a change which the expressionmutatis mutandis requires to be made, unlessthey are so cogent as to establish necessity.If fitness in a less strict sense, i.e.,fitnessnotsufficientindegreeto, show
necessity, were the test to be applied for thepurpose of ascertaining what changes.' arerequiredinorder togivedue effectto
. 'mutatis mutandis1 , a wide field would beopened up for speculation in many cases wherethis expression -is used, and there would Se. room for great differences of opinion *hs towhether particular changes were, or were not,fitting;withthe resultthatin thecaseof
any provisiontaken fro®thecontext ofone '
Act and applied for the .purpose of another'mutatis mutandis', there, would be seriousrisk of uncertainty as to how it was to be.construed in the context of the Act into whichit had been, ’so to speak, .transplanted„n
ff
In the case o£ – Mot.ilal VS, ■ C&s&saioftst iffIncome Tax .(U) the Court was called on to applycertain Rules of the Income Tax Appellate Tribunalof Bombay loutatia mutandis to the provisions of
Sri Lanka Law Reports
[1983J1 Sri UL
_-218– r‘"‘*
..section 66 of the Income Tax Act of 1922. Section66(1) reads as follows:-
'•Within sixty days of the date upon whichhe is served with notice; of an order undersub-s.(4) of S.33 the assessee….may, by1
application in. the prescribed fops* …….
require the Appellate Tribunal fo ref fer to theHigh Court any question of law arising out of- such order, and the Appellate Tribunal shallwithin ninety days of. the receipt of., suchapplication draw up a statement of the caseand refer it to the High Court."-
Hole 36 provided that Rules 7 and 8 . shall applyjmtatis’- smtandis^. to an application under sub-section 1 of section 66. Rules 7 .and 8 read’ thus – •
”7(1) A memorandum of appeal.to the Tribunalshall be presented by the appellant in personor by an agent to the Registrar at the head-quarters of the Tribunal at Bombay* or to anofficer authorised in this behalf by the.Registrar, or sent by registered postaddressed to the Registrar or to such officer.
A memorandum of .appeal sent by post …undersub-r. (1) shall be -deemed to have beenpresented to the Registrar…….on "the day
on which it is received in the office of. the •Tribunal at Bombay…-
The Registrar shall endorse on everymemorandum of appeal the date on Which it ispresentedi or deemed to have been presentedunder R,7.n
The application requiring the Tribunal to referthe matter to the High Court was .received on the63rd day and a plea in bar was taken. The Courtupheld this plea and construed the rules thus –
*-SC_. . Visuvaiingam vs. Liyanags iSatr.arakoon, C. J.).. .219
~
"(8) In reading Rr.7 and 8mutandis:
. every effort should be made to adapt everypart of these rules for the purposes of theapplication. It is not permissible to leaveout any portion arbitrarily. The Rules do notsay that sub-r.(2) of R.7 should be left out,and hence every effort must be made to seethat that sub-iuie also can beadapted
suitably. Reading Rr.7 and 8 in the light ofR.'36 we get the following result:
7(1) An application under S,G6(1) of the Actshall be presented by the applicant in person
or by an agent to the Registraror
sent by registered post addressed to the,Registrar…….
An application under 3.66(1) of the Actsent by post under sub-r.(l) shall be deemedto have been presented to the Registrar on theday on which it is received in the office ofthe Tribunal in Bombay…….
8.TheRegistrarshall endorse on every
application under S.66(l) the date on which it
is presentedIt is true that the word
'presentation* is not used in S.66(l). Butwhen the legislature fixed a period of 60 daysin which the assessee (or the Commissioner)may'require' theTribunalto refer toa
question of law, the legislature certainly hadin minda terminusad quern ofthe period.It.
isanelementaryrule ofconstructionof
statutes that the judicature in theirinterpretation have to discover and act uponthe.mens::or. sententia legis Normally. Courtsdo not look beyond the litera legiss and inthis case it is not necessary to do any more.”
The Court expressly refused to leave outpart arbitrarily and made only one alteration. Th^s
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[1983J1 SriL.R.
method was approved and repeated by Kapur J. inK.M.Wcrks vs, IPT.Com!ssionet (5). He stated thatthe phrase route tis mutandis permitted "only suchverbal changes to be. made in the rules mentioned inRule 36 as would make; the principles embodied inthese rules applicable to. applications under sub-section (1) of section 66.,rThis fact appears tohave escaped the notice 6f the draftsman of the;Sixth Amendment.
If necessity,, and not fitness, .be the test and if.the principles of Article 165 are to be maintainedthen the only changes in Article 165(1) that can bemade are –
..» v* t
' To substitute "Seventh Schedule* for thewords. “Fourth Schedule*.
_md 1;'.•-'..
2» 2b substitute the Words "Within one monthof the date on which this Arbicle comes intofprce9 . ‘for the words *after the commencement…of the Constitution pin or' before such date as.may' be prescribed by the Prime Minister byOrder published in the Gazette."
The Deputy Solicitor General contended that " asmuch as the farm is important the manner too isirapbrt^it,>» If importance is a guide then -form,manner and time are all important. But. ’what the lawrequires to be done is to apply the provisions ofArticle 165 to Article 157A and not vice versa. •there are three legal principles in' Article 165(1)which have to be .applied to the provisions of■particle. X5M. They- sape *
the oath,
the time limit;.and
the sanction, i.e. the loss :of office, ,
. There is nothing else that could be considered.The person before whom the’ oath ±b to be taken
<-SC… _ Visuvalingsm vs. Uyanage. (Samarakoon, C. J.)' .221
J—:f
finds no place in the provisions of Article 165(1).It is found only in Article '157A. There is•therefore no justification for,the addition of ■ thewords "before the President". Such an. amendment canbe made by the Legislature only. In the result thewords "shall cease to hold, office" apply only tothe failure to. take the oath, within one month andhas no application to the person before whom thepath has to be taken. To my mind this is a clearindication that.this; Iasi provision' is – directoryand not mandatory. There, is another factor whichconfirms me in this ifiew. Article .165(1) is one ofthe Transitional ‘ Provisions and in this caseapplies to persons who are holders of office andhave already taken an oath' before entering upontheir duties and the oath in terms of the SeventhSchedule was merely meant to permit continuance inoffice. The object of the Sixth. Amendment was tobind the persons to allegiance to a Unitary Stateand to abjure separatism. This has been Achieved bythe form of the oath and to a certain extent by thetime limit of one month.
The Deputy Solicitor General contended thatf theoaths taken by the Judges before their fellowJudges are not legally binding or valid even thdtfghJudges of the Court of Appeal And Supreme Court areex-officio J.Ps. in terms of section 45 of. theJudicature Act (Vide the Fifth Schedule). He added'that the requirement to take the oath .before thePresident is mandatory. His reason for stating thisneeds to be quoted verbatim: ■. " …
"The reason for this is not far to seek.The Head of State as .repository of certainaspects of the people's Sovereignty has. . a'constitutional obligation to. . . . .obtain fromthe Judges their allegiance.The personal;allegiance which the Judges owed to theSovereign i® the days .of, the!’Monarch^*'is’continued to rhe present day where theallegiance is owed to the Head of the State as
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representing the State. The Head of the Stateis entitled to ensure that the allegiance i.sjU3flife?ted openly and in bis presence.”
Ibis is a startling proposition. Sovereignty ofthe People under the 1978 Constitution is one andindivisible.. It remains with the People, It is onlythe exercise of certain powers of the Sovereignthat are delegated under Article 4 as follows
Legislative power to Parliament
Executive power to the President
Judicial power through Parliamentto the Courts.
Fundamental Rights (Article 4(d)) and Franchise(Article 4(e)) remain with the People and theSupreme Court has beep constituted the guardian ofsuch rights.(Vide Chapter XVI of the Constitution).X do pot egree witj* tJie Deputy Solicitor General
has-, inherited the mantle of aMonarch and' that sllegiance is owed to him. Theoath in terms of the Fourth Schedule which the1 Judges were required to take or affinn in terras ofArticle 107(4) swore allegiance to the SecondRepublican Constitutional .and the Democratic.Socialist Republic of Sr 1 Lanka. I cannot thereforeaccept this reasoning of the Deputy SolicitorGeneral.
The next reason he gives is. that a J.P. hasnever been known to administer, a ConstitutionalOath, and Judges of the Superior Courts have alwaystaken their oaths before the President. Let me dealfirst with the first part of thisargument.
Chapter VlII of. the Constitution deals with aCabinet of Ministers, and the President is a memberof the Cabinet. It- also provides for theappointment of Deputy Ministers, a Secretary to theCabinet, and a Secretary . for each of theMinistries. All of them must take an oath ir terras
SC—Visuvallngam vs* Uyanage. (Samarakoon, C J.)213
[==“:l
of the Fourth.'Schedule before they enter upon their,duties. (Vide^Artide 53). No person is designatedto administer the oath. But such an oath to bebinding must be taken before a person recognised bylaw as one empowered to administer a binding oath.It has been customary for the Ministers and' DeputyMinisters to take the oath before the President whois an ex-officio J.P. (Vide Fifth Schedule to theJudicature Act). I presume the other officials alsoare sworn into office by a J.P. The various PublicOfficers appointed under Chapter IX are required totake a similar oath (Vide Article 61). No. person isdesignated to administer such oath. For this oathtrc be binding it is sufficient if it isadministered by a J.P. Members of Parliament takean oath before Parliament (Vide Article 63).Parliament duly assembled is presided.over by theSpeaker and in his absence by the Deputy Speaker orthe Chairman of Committees. Whoever is in the chairadministers the oath. He is an ex-officio J.P.(Vide Fifth Schedule to Judicature Act). The Judgestake their oath before the President who is an ex-officio J.P. and similarly the President takes hisoath before the Chief Justice or a Judge of theSupreme Court who are ex-officio J.Ps. It is not acoincidence that they are J.Ps. They are soappointed for the reason thattheyhavea
constitutional duty to administer an oath. It iscustomary in this country to take oaths before a
J.P. or Commissioner of Oaths unless itis
mandatory to take it before a particular J.P. ofstanding. Oaths required by Article 53 and Article61 can be administered by any J.P. It is thereforenot correct to state that Constitutional oaths arenever administered by J.Ps. Judges of the SuperiorCourts have taken their oaths of office before thePresident, Section 133 of the First RepublicanConstitution of 1972 did not require it. Article107(4) of the Second Republican Constitution of1978 required it. But this, as I have already
. 224Sri Lanka Law Reports[1983] 1 Sri UL
stated, is not mandatory in respect of the oath inthe form set out in the Seventh Schedule, in. thecircumstances such an oath . taken before a J.P.empowered by law to administer an oath is aperfectly valid oath.
The Deputy Solicitor General also referred us tothe provisions of section 12 of the Oaths andAffirmations Ordinance (Cap.17) which is areference to Commissioners of Oaths. Section 12authorises a Commissioner of Oaths .to administer anoath "in all cases in which an oath, affirmation oraffidavit is commonly administered or taken beforea J.P." He seeks to interpret this prdVision byreference to the provisions of section 84 of theCourts Ordinance. But this we are not permitted . todo for the simple reason that the Courts Ordinancewas repealed. Section 12 of Cap.17 therefore standsalone. What are the Oaths and Affirmations that arecommonly administered by a J«P.? We cannot look toparticular instances in a Statute. The .words"commonly administered" 1 understand to mean"ordinarily administered" in day to day affairs ofthe community. Many types of oaths are required bylaw as well as by private business. It is commonknowledge that when any citizen desires to make anoath or affirmation he must necessarily go- to aJ.P. or a Commissioner of Oaths, unless the lawexpressly prescribes some other manner of makingsuch oath or affirmation. In the. absence of suchcompulsion an oath is taken before a J.P. orCommissioner of Oaths. It was not mandatory for aJudge to take the oath in terms of the SixthAmendment before the President. He was entitled toswear or affirm in any other manner recognised bythe law, viz. before a J.P. In the result I holdthat the Judges of the Court of Appeal and SupremeCourt did not cease to hold office in terms ofArticle 165(1) of the Constitution.
The next question to consider is the question ofthe time limit of one month. Counsel for the
. SC .Visuvalingam vs. Liyanage.' (Samarakoon, C. J.i. 225
I—.::■:
Petitioner has stated that -the opinion expressed bythe Judges in the letter to the President dated 9thSeptember stating that the 9th September was thelast date for taking the . oath in terms of theSeventh Schedule was a considered opinion of theSuprone Court on a constitutional matter, and theSupreme Court being the final authority on theinterpretation of the Constitution, that opinionwas binding on all persons in the country includingthe President. I am unable to . accept thisproposition as correct. We did not sit as theSupreme Court to consider and decide a disputedconstitutional issue or the interpretation of aparticular provision of the Constitution. We setwith the majority of the members of the Court ofAppeal to discuss a matter arising out of our owncontract of service and expressed an opinion whichwas personal to each of us. We had before usinformation which Showed that the Attorney-General’s opinion, as expressed to the Government,considered the 7th September as the final date. Wewere of the opinion that the last day was the 9thSeptember. I now find that neither side wascorrect. The final date appears to be the 3thSeptember. "Month" in terms of section 3(p) of theInterpretation Ordinance (Cap.2) means "Ca.lcndarmonth". A Calendar month is reckoned not bycounting the.days but by looking at the Calendar."The space of time from a day in one month to theday numerically, corresponding to that day in thefollowing-month is a Calendar month." Burne vs.Munisamy (6), 'The Highland Tea Company of CeylonLtd. Vs. Jinadasa (6) and Dodds vs. Walker(8).
JBefore I deal with the preliminary issues Idesire to .deal with the. issue raised on the timelimit of two months set out in Article 126(5) whichstates that the Supreme Court "shall hear andfinally dispose of any petition or reference withintwo months of the filing of such petition or themaking of such reference". The Deputy Solicitor-
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General submitted that this provision was mandatoryso that even a fault of the Court is no excuse.Anexamination of the relevant provisions of theConstitution indicates that this provision ismerely directory. Fundamental Rights are anattribute of the Sovereignty of the People. • TheConstitution '"commands that they "shallbe
respected, secured and advanced by all the organsof Government and shall not be abridged * restrictedor denied save in the manner and to the extent(thereinafter) provided'' (Article 4(d)). It is oneof the inalienable rights of Sovereignty (Article3). By Article 17 every person is given the rightto apply to the Supreme Court to enforce such rightagainst the executive provided he complains toCourt within one month of the infringement orthreatened infringement (Article 126). Theseprovisions confer a right on the citizen and a dutyon the Court. If that right was intended to be lostbecause the Court failsinits duty the
Constitution would have so provided. It hasprovided no sanction of any icind in case of suchfailure. To my mind it was only an injunction to berespected and obeyed but fell short of punishmentif disobeyed. I am of opinion'that the provisionsof Article 126(5) are directory and not mandatory.
—Any other construction would deprive a citizen ofhis fundamental right for no fault of his. While Ican read into the Constitution a duty on theSupreme Court to act in a particular way I cannotread into it any depriyation of a citizen'sguaranteed right due to circumstances beyondhiscontrol.
I shall now deal with the two preliminaryobjections. The Deputy Solicitor-General contendsthat the Judges are estopped from denying that theynow function on a fresh appointment issued by thePresident on the 15th September. It is correct thatsuch letters of appointment were issued ^to eachJudge on the 15th after two oaths were taken by
sc
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i
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each. They are the oath in- terms of the FourthSchedule and the oath in terras of the SeventhSchedule. Counsel for the petitioner contends thatan'estoppel cannot operate because the Judges hadno choice as they had been locked out. There is nodoubt that Judges had been denied access to theCourts and Chambers by a show of force. There isalso no gainsaying that this act has polluted thehallowed portals of these Ccurts and that stain cannever be erased. But it is unthinkable that Judgesshould pend an excuse against estoppel on the- actof a blundering bureaucrat. Prirna facie Judgeswould be estopped. They cannot both approbate andreprobate or to use a "descriptive phrase" theycannot blow hot and cold. Vide Lord- Atkin in.Lissee dsn Vs. Bosch Ltd. (9) If it was as simple asthat then I would have had no hesitation in holdingwith the contention of the State. But this goesmuch deeper. It. is a constitutional matter and itis contended that the Judges cannot decide whetheror not they were de jure Judges on the 9thSeptember and that they cannot decide any matterconcerning their appointment as Judges. In shortthey cannot look into facts that existed oroccurred before the 15th September. I have alreadystated that the Judges did not cease to hold officeand therefore on the 15th September at the timefresh letters of appointment were issued they werede jure Judges. Apart from the fact that there isno estoppel against a Statute there- is the largerand more important issue, vis a vis . the Supreme. Court. To deny it the right to rule onconstitutional issues is to deny the exclusivejurisdiction conferred on the Supreme Court "in-constitutional matters. What is pleaded as anestoppel against the Judges is in reality anestoppel against the Supreme Court. I have nohesitation in dismissing the .two preliminaryobjections.
In view_ of the foregoing reasons I am of opinion
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that the Judges of the Supreme Court and Court ofAppeal did not cease to hold office by reason ofthe provisions of Article 157A of the SixthAmendment. Further, that the limit of two monthsprescribed in Article 126(5) is directory and not.mandatory.
S.SHARVANANDA,j;,,
The matters referred to the Full Bench involveimportant questions which concern the jurisdiction,dignity and the independence of the Supreme Courtand of the Court of Appeal of the Republic of SriLanka. In dealing with the questions we must keepin mind that the objectivity of our approach itselfmay incidentally be in issue. It is therefore in aspirit of detached objective inquiry which is adistinguishing feature of judicial process, that weneed to find an answer to the questions that areraised. It is essential to deal with the problemobjectively and impersonally. If ultimately we cometo the conclusion that the contention advancedbefore us by Mr. Nadesan is erroneous, we .will nothesitate to pronounce our determination againstthat submission. On the other hand if we ultimatelyreach the conclusion that the proposition, urged byMr. Azeez, for the Attorney-General cannot besustained, we will not falter to pronounce averdict accordingly.In dealing with problems ofconstitutional importance and significance it isessential that we should proceed to discharge ourduty "without fear or favour, affection or ill-will," and with the full consciousness that it isour solemn duty and obligation to uphold the*Constitution of the Democratic Socialist Republicof Sri Lanka (1978).
I agree with the Chief Justice, for the reasonsstated by him,, that the provision of Article 157(A)Sub-Article 7(a) of the Sixth Amendment whichrequires the oath prescribed therein to be taken
-SC- Vjsuva'Jngam vs. Liyanegc. (Sharvananda, X) :229
and subscribed before "such person or body, ifany”, as is referred to in that Article (Article107), namely before His Excellency the President,is directory and not mandatory and a defaultthereof does not attract the sanction prescribed byArticle 165 of the Constitution, and that since theJudges of the Supreme Court and of the Court of=Appeal had duly tajken the cath in the form set outin the Seventh Schedule terms of the OathsOrdinance (Ch.17), before another Judge of therespective Court, prior to the expiry, of one monthfrom the date on which the Sixth Amendment cameinto force, their failure to take their said oathbefore the President did not result in theirceasing to hold office on the termination of thesaid one month. In my view, the submission of theDeputy Solicitor General that the Judges of theSupreme Court and of the Court of Appeal ceased tohold office in terms of Article 165(1) of theConstitution on midnight of 7th or of 8th day ofSeptember 1983, is not well founded and iserroneous; there was no change in the legal statusof the Judges; the Judges continued to functionwith all legitimacy as Judges de jure of therespective courts, without any break, conceptuallyor otherwise, from the 8th day of September^ 1983onwards.
It was urged by the Deputy Solicitor General thatthe Judges by accepting the fresh appointmentIssued by the President on 15th September acquireda new lease of life and are now ' functioning inpursuance of the said letters of appointment andare estopped from denying that they derive theirauthority from the fresh appointment and fromcanvassing the propriety of the said appointment.
The Deputy Solicitor General founded hisargument on the fact that on 15th September 1983the Judges accepted without protest fresh lettersof appointment dated 15th September 1983 from the
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President. He submitted- -that this conduct isexplicable only on the basis that the Judges hadresigned themselves to the position that they had.ceased to hold office and had elected to acceptfrom the President fresh letters of appointment. Heinvoked the principle that a person cannotapprobate and reprobate at the same time in supportof his proposition of estoppel.
The law of estoppel is satisfactorily stated inHalsbury's Laws of England, 2nd Ed.Vol.13, para 452at page 400 in the following words :
"Where one has either by words or conductmade to another a representation of fact,either with knowledge of its' falsehood or withthe intention that it should be acted upon,or so conducts himself that another would as areasonable man, understand that a certainrepresentation of fact was intended to beacted on, and that other has acted on suchrepresentation and alters his position to hisprejudice, an estoppel arises against theparty who has made the representation, and heis not allowed to aver that the fact isotherwise than he represented it to be." .
The principle that a person may not approbateand reprobate is a species of estoppel,intermediatebetween estoppel by record and estoppel by conduct.
"The phrases "approbating and reprobating" or"blowing hot and cold" must be taken toexpress, first, that the party in question isto be treated as having made an election fromwhich he cannot resile, and secondly, that he
will not be regarded..as having so
elected unless he has taken a benefit under orarising out of the course of conduct which hehas first pursued and with which his presentaction is inconsistent" – Per Evershed M.R.,(1950) 2 A.E.R. 549 at 552.
SC.'Visuvalingamvs. Liyanage (Sharvananda,J.)■ 1231'
1:1-:i—f
"The doctrine of approbation and reprobation.requires for, its foundation, inconsistency ofconduct, as where a man, having accepted abenefit given to him by a judgment cannotallege the invalidity of the judgment whichconfers the benefit" – Lord Russel in Evans Vs*:Bartlam (10).
"In cases where the doctrine of approbationand reprobation does apply, the personconcerned has a choice of two rights either^ ofwhich he is at liberty to accept, but . not-"both. Where the doctrine does apply if theperson to whom the choice belongs irrevocablyand with knowledge adopts the one, he cannotafterwards assert the other," Per Lord Atkinin Lissenden Vs. Bosch Ltd.,(9).
A person cannot adopt two inconsistent positions.,hecannot affirm and disaffirm; he is presumed towaive one right and elect to adopt the other. Ijhisdoctrine of waiver looks chiefly to the conduct andposition of the person" who is said to have waivedin order to see whether he has "approbated", so asto prevent him from reprobating – whether .he haselected to get some advantage to which he would nototherwise have been entitled, so as to deny him alater election to the contrary.{
"This doctrine of estoppel by. representationforms part of the law of evidence and suchestoppel, except as a bar to testimony has nooperation or efficacy whatsoever. Its soleoffice is either to place an obstacle in theway of a case which might otherwise succeed,or to remove an impediment out of the w£y ofa case which might otherwise fail" SpencerBower – The Law relating to Estoppel byRepresentation – 2nd Edition pages 6-7.
No cause of action arises upon an estoppel.
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i — —!'
It only precludes a person from denying the truthof some representation previously made by him.
“It may (if established) assist a plaintiff inenforcing a cause of action by preventing adefendant from denying the existence of somefact, the existence of which would destroy acause of action." Per Lord Russel in NipponMonkwa Kabushiki Kaisha vs. Dawson*s Bank.Ltd.(11).
The representation relied upon as an estoppelis, in itself no direct or affirmative evidence ofany title or right whatsoever; it can only be usedto prevent the opposite party from denying thetitle or right. It cannot prevent a third partyfrom doing so, and therefore can confer no legaltitle.
"It is true that a title by estoppel is onlygood against the person estopped, and importsfrom its very existence the idea that there isno real -title at all." Per Farwell, L.Jt
in. Bank of England vsB Cv.ti@r (12).
The plea of estoppel raised by the .DeputySolicitor General involves the admission that theletters of appointment issued on 15th September, donot in fact confer or establish a legal title, .though it is not open to the Judges who acceptedthem to make that assertion. On this view of theDeputy Solicitor General's argument, Mr. Nadesanwas justified in submitting that his client who isa third party is not bound by this estoppel andthat it is open to him to demonstrate that thelegal authority of the Judges to function as suchJudges does not stem from the letters ofappointment granted on 15th September, but fromtheir original letters of appointment and that, atall relevant times, they functioned de jure.
Visuvalingam vs. Liyanage. (Sharvananda, J.)
233
SC
i
Assuming that the acceptance of the letters ofappointment dated 15thSeptember, from the
President lends itselfto spelling out a
representation, sufficient factually to support aplea of estoppel by conduct (there are. diffi-culties in the way of such assumption) the.question then arises whether such plea can besustained in law. This doctrine of acquiescence,waiver or estoppel is based on principles ofjustice and equity and hence is limited in itsoperation.
Spencer Bower at page 140 states lucidly thelimits of the doctrine.
"Just as it is a good affirmative defence toan action on a contract that it cannot beperformed withoutdirectlycontraveningthe
provisions of a statute and that, by enforcingit or otherwise judicially treating it asvalid, any courtwould besanctioningand
condoning such contravention, so also it is agood affirmative answer to a case of estoppelby representationthatanyclosure ofthe
representor's mouth would result in a likejudicial recognition of, and connivance at astatutory illegality. The private rights andinterests of the individual must yield in suchcircumstances tothehigher rightsand
interests of the State. In accordance withthese paramount considerations of publicpolicy, it has been held that no estoppel canbe allowed which will preclude the representorfrom asserting and bringing to the notice ofthe Court "the statutory illegality of suchacts, proceedings and instruments as aresought to be validated by the estoppel putforward."
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The law precludes a Court from allowing anestoppel, if to do so would be to act in the faceof a statute and to give recognition through theadmission of one of the parties to a state ofaffairs, which the law has positively declared isnot to subsist. A party cannot set up an estoppelin the face of a statute. Thus a corporation onwhich there is imposed a statutory duty to carryout certain acts in the interest of the publiccannot preclude itself by estoppel by conduct fromperforming its duty and asserting legal rightsaccordingly. See Maritime' Electric Oo.-Ltd. vs.General Dairies Ltd.,(13) and Southend-on-sea
Corporation vs. Hodgson Ltd,(14). Given a statutoryobligation of an unconditional character it is notopen to a court to allow the party bound by thatobligation to be barred from carrying it out by theoperation of an estoppel. The question whether anestoppel is to be allowed or not, depends onwhether an enactment or rule or law relied on isimposed in the public interest or "on grounds of ageneral public policy."
. (See Re a Bankruptcy notice – Per Atkin %L*J *(1924)
2 Ch. 76 at.-97)
"The truth is that it can no longer be treatedas axiomatic that in the absence of explicitlanguage the Courts will permit a contractingout of the provisions of an Act of Parliamentwhere that Act, though silent as to theposition of contracting out, nevertheless ismanifestly passed for the protection of aclass of persons who- do not negotiate froma positionofequalstrength, butin
whose well-being there is a public, as wellas a private interest. Such acts are notnecessarily to be treated as simply"Jus pro
se introduction", as "a private remedy and aprivate right" which an individual member ofthe class may simply bargain away by reason
-SC—. VituvaUrtgem vs Uyansge ’.(Sharvananda, J.l. 235
of his freedom of contract”.Per Lord Hailshamin Johnson vs. Mot at on (15).
"■Quilbet pc>tast renunciare juri pro se introducto"
. (any one may at his pleasure renounce the benefitof a stipulation or other right introduced entirelyin his own fayour). This maxim has no applicationin a matter where the public have an interest. SeeBrooms' Legal Maxims, 10th E-4, page 481.
"An individual may renounce a law made for hisspecial benefit. ” It was pointed out by LordWestbury in Hunt vs. Hunt. (15), that the words"pro se” were introduced into the maxim to showthat no man can renounce a right of which his dutyto the public or the claims of society forbid therenunciation. •
“The key, however to the interpretation of themaxim lies, as Lord Simon of Glaisdale pointedout in National Westminister Bank Ltd. vs.Halesowen Press Works Ltd. , • (17), indiscovering whether the particular liberty orright conferred by the statute or rule of lawis entirely for the benefit of the personpurporting to renounce it. If there is apublic as well as a private interest, acontrary Latinrmaxim applies.”
Per Lord Hailsham at page 47 of (1978) 3'A.E.R. 37. (15)
It is clear that the rule expressed in ‘themaxim has no applicability if the matter of analleged private waiver is one in which thepublic has an interest.
Article- 107 of the Constitution of theDemocratic Socialist Republic of Sri Lanka,1978 provides : .
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"Every Judge of the Supreme Court andCourt of Appeal shall be appointed by thePresident of the Republic by warrant under hishand.
Every such Judge* shall hold office during,good ' behaviour and shall not he removed exceptby an order of the President made after anaddress of Parliament, supported by a majorityof the total number of Members of Parliament(including those not present) has beenpresented to the President for such removal onthe ground of proved misbehaviour orincapacity.
Provided that no resolution for thepresentation of such an address shall beentertained by the Speaker or placed on theOrder Paper of Parliament, unless notice ofsuch resolution is signed by not less than onethird of the total number of Members ofParliament and sets out full particulars ofthe alleged misbehaviour or incapacity,"
The main aspirations of the Constitution are Setdown in its luminous preamble. Rule of law is thefoundation of the Constitution and independence ofthe judiciary and ifundamental human rights arebasic and essential features of the Constitution.It is a lesson of history that the most valuedconstitutional rights prersuppose an independentjudiciary, through which alone they can bevindicated. There can be no free society withoutlaw, administered through an independent judiciary.It is and should be the pride of a democraticgovernment that it maintains and upholdsindependent courts of justice where even its ownacts can be tested. The supremacy of theConstitution is protected by the authority of anindependent judiciary to act as the interpreter ofthe "Constitution. So solicitous were the framers
SCVisuvalingam vs. Liyanage (Sharvananda, J.)237
’of the Constitution to make the position of theJudges independent and entrenched that theyinvested them with the status of irremovabilitysave on the limited grounds and manner specificallyset out in its provisions. The Judges of theSupreme Court and of the Court of Appeal, unlikePublic Officers of whatever rank, do not holdoffice during pleasure. The Constitution endeavoursto secure the independence of the judiciary by .setting up well-known mechanisms to assure theirsecurity of tenure. The vital need of security oftenure can scarcely be over-^emphasised. It issignificant that the Article 107 appears under thecaption "Independence of the Judiciary". A Judge ofthe Supreme Court or of the Court of Appeal isentitled to hold office until he attains the age of65 or 63 respectively (Article 107(5)). He is notremovable by the Executive; the only way he can beremoved is by an order of the President in terms ofArticle 107(2). Of course he may resign his office- resignation is a voluntary act different inquality and is far from removal.
Article 103 provides that their salariesshall be determined by Parliament and are chargedon to the Consolidated Fund and that the salarypayable to and pension entitlement of a Judge ofthe said Courts shall not be reduced after hisappointment. It is manifest that these provisionsare designed to safeguard the independence of the"Judges by affording them security of tenure. Theseprovisions have not been put into the Constitution. merely for the individual benefit of the Judges;they have been put there as a matter of publicpolicy. The security of tenure of Judges has beenvouched to the Judges, not only for their ownprotection but for the protection of the Stateitself. The framers of the Constitutionhad
considered it to be in the interest of the publicand not merely of the individual Judges that theirsecurity of tenure should be sacrosanctand-
.2 38
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sanctioned by the Constitution. The office of aJudge has become a matter of status rather than acreation of a contract.. A Judge of the SupremeCourt or the Court of Appeal can cease to holdoffice only in terms of the provisions of theConstitution and not by operation of any rule ofestoppel. In this' perspective the submission of theDeputy Solicitor General that the Judges should bedeemed to have ceased to hold their office and tohave-elected on 15th September to accept freshletters of appointment appears to be jarring and isuntenable. The doctrine of estoppel invoked by himis out of place in the area of constitutionalprovisions. The provision of the Constitution thatconfronts the estoppel represents a State policy towhich the Courts must give effect. The interest ofthe public, despite any rule of evidence as betweenthemselves that the Judges and the President mayhave created by their conduct, is supreme. Thebasic concept of judicial independence would beexposed to very great jeopardy if rules of estoppelare permitted.to modify it. The Judges, once theyaccept appointment under Article 107(1) of theConstitution are not free to contract out of theprovisions of the Constitution and waive theconstitutional protection which is warranted tothan in order to protect their integrity andimpartiality. Any such waiver is null and void.Hence no rule of estoppel or of approbation and.reprobation precludes the Judges – from referringtheir-title to their office to their originalletters of appointment which had been issued tothem by the President on the terms and conditionsof Article 107 of the Constitution.
In view of the conclusion"'that the Judges hadhot vacated their office by reason of theiromission to take the prescribed oath before thePresident in terms of Article 157(A)(7) read withArticle 165 of the Constitution, Article 107orda* s that their original letters of appointment
SCVisuvalingam vs. Uyatiage ' (Sharvananda, /■).239
continue to be valid and . binding and that theJudges may continue to iiold office until they areremoved under Article 107(2) or reach their age ofretirement. The new letters of appointment grantedon the 15th September 1983 do not supersede theoriginal letters of appointment and do pot in anyway detract from the legal import of the earlierletters.
In my view, the Judges did not cease to holdoffice on the 9th September but continued to holdoffice without any break and the proceedings ofboth 8th and 9th September are valid on the basisthat the Judges who heard the proceedings were dejure Judges.
I agree also with the Chief Justice in hisreasoning and conclusion that Article 126(3) of theConstitution that the Supreme Court should hear andfinally dispose of the application made under thatArticle within two months of the filing of suchpetition is directory only and not mandatory, andthat failure by the Supreme Court to dispose of theapplication within the prescribed period will notnullify the petition.
We have heard conflicting arguments oh thecomputation of the time limit of one monthprescribed by Article 157(A)7(a) of the SixthAmendment. Counsel for the petitioner submittedthat the 9th September was the last date for takingthe oath in terms of 7th Schedule, while the DeputySolicitor General submitted that the 7th Septemberwas the last date, though he was prepared toconcede that, according to authorities, fifthSeptember can also be regarded as the last date ofthe month. The authorities relied upon by partiesedify us on how the period of a month is computedin ordinary parlance, in the English Common Lav* incommercial transactions and under the EnglishInterpretation Act but no authority was cited by
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either side on how when a month is stipulated in a „written Constitution, the period is to be calcu-lated. In view of the fact that I have already heldthat the Judges had lawfully taken oath in termsof the 7th Schedule prior to the 7th September,and their default in taking the said oath beforethe President within the prescribed time would nothave the consequence of their ceasing to hold theiroffice, the question whether the month stipulatedby the Sixth Amendment ended on the 7th or 9thSeptember, is not of material importance to callfor a pronouncement thereon and I do not propose todetermine that question as it is not necessary.
"It is not the habit of the Court to decide
questions of a constitutional nature unless
absolutely necessary to the decision of a
case." Burton vs. United States ,(18).
Before concluding my judgment I must refer toa preliminary objection raised by the DeputySolicitor General. It was contended by the DeputySolicitor General- that this Court is precluded fromdirectly or indirectly calling in question ormaking a determination on any matter relating tothe performance of the official acts of thePresident. He supported this objection by referenceto Article 35 of the Constitution. I cannotsubscribe to this wide proposition. Actions of theexecutive are not above the law and can certainlybe questioned in a Court of Law. Rule of Law willbe found wanting in its completeness if the DeputySolicitor General's contention in its widedimension is to be accepted. Such an argument cutsacross the ideals of the Constitution as reflectedin its preamble. An intention to make acts of thePresident non-justiciable cannot be attributed tothe makers of the Constitution. Article 35 of theConstitution provides only for the personalimmunity of the President during his tenure ofoffice from proceedings in any Court. The President
sc
Visuvalingam vs. Liyanage (Wanasundera*).)
241
cannot be summoned to Court to justify his action-.But that is a far cry from saying that thePresident's acts cannot be examined by a, Court ofLaw. Though the President is immune fromproceedings in Court a party who invokes the actsof the President in his support will have to bearthe burden of demonstrating that such acts of thePresident are warranted by law; the seal of thePresident by itself will not be sufficient todischarge that burden.
WANASUNDERA, J.,
I have seen the judgment of the,Chief Justiceand, while I agree generally with many of theconclusions he has reached, it seems desirable,however, that I should briefly clarify my ownposition on some of the matters that were arguedbefore us.
First, I would like to emphasise that theissues before us are undoubtedly of greatconstitutional importance having far-reachingconsequences in the working of the Constitution.Being matters of constitutional law and inparticular, affecting the authority of the judgesand the jurisdiction of the Supreme Court, theseissues, because of their importance, hadnecessarily to be disposed of on the first occasionthey were raised or brought to our notice. What isin issue is a direct challenge to the authority andjurisdiction of the Supreme Court in the hearingand disposal of a matter,before it. These issuesarise inescapably for consideration, for they couldhave been raised at any time – at a later stage ofeven thes^ same proceedings or in any of the othercases which had been left incomplete on ,8thSeptember,1983.
It was the position of the learned DeputySolicitor General that we had ceased to be judge'sbetween the 8th September and the 15th September
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1983. He sought to argue that the gap between the8th of September and the 15th of September could bebridged on the principle of da facto judges for apart of the period and the balance period byreference to section 48 of the Judicature Act.,None of the arguments or citations relied on byhim, I am afraid, has any direct application to thesituation before us. It is therefore idle tobelieve that this issue involving the constitutionand the jurisdiction of this court could have beenglossed' over and evaded or that we should haveproceeded to hear the matter before us, leavingaside the question of our very, jurisdiction wrappedin uncertainty.
I am in total agreement with the ChiefJustice in his reasoning and conclusion that therequirement that judges should take their oathbefore the President is merely a directoryprovision. He has examined the relevantconstitutional and statutory provisions with greatcare and thoroughness and rightly concluded that incircumstances such as this, whenever the law hasrequired an oath to be administered in thiscountry, it has always been administered by aperson in his capacity either as a justice of thePeace or as a Commissioner of Oaths. An oathadministered by either of such persons,irrespective of his official position, whether highor low, must have equal sanctity and operation inthe eye of the law. It cannot be otherwise for anoath is an oath. That a justice of the Peaceholding a particular office or post is designatedas the person before whom the oath should be takenin a given instance, may have something to do withthe dignity of the office of the person required totake the oath, or to give solemnity to theoccasion; but I cannot see how that fact, canincrease, diminish or affect the sanctity of theoath, which has been sr>1r> mly taken in every suchcase. But oven in the c- •: of such designations we
SCVisuvalingam vs. Liyanage! (Wanasundera^J.J,243
search in vain for a consistent principle. Most ofthe Supreme Court Judges took their oaths beforethe Chief Justice or a brother judge. HisExcellency the President took his oath, as he'lawfully may, before a junior judge of the SupremeCourt. The law permits the Prime Minister or anyCabinet Minister to take his oath before anordinary justice of the. Peace or Commissioner ofOaths. Every indication in the relevant provisionspoints to the fact that the requirement that theSupreme Court judges should take their oath beforethe President is of a directory nature. The judgestherefore, by taking the oath under the SeventhSchedule before the Chief Justice or before abrother judge before the expiry of the first weekof September, have substantially complied with thelaw.
In dealing with this particular question,Mr.Nadesan did not stop there but went much furtherand sought to analyse the relevant provisions ofthe Constitution in greater depth.lt was hissubmission that, apart from whatever view we maytake as to the nature of the conditions for takingthe oath, a proper interpretation of the relevantprovisions does not admit of the view that a judgewould automatically vacate his office or be removedtherefrom by a mere failure to take the oathprescribed by the Seventh Schedule. It was hissubmission that only a failure which amounts to awilful or contumacious refusal to "take the oath,and not a mere omission, may, in appropriatecircumstances, provide a ground for disciplinaryaction against a judge. This argument appears to beof some substance.
The Chief Justice has already drawn ourattention to the fact that Article 165(1), on whichhinges the power of cessation of office, is atransitional provision in the Constitution. It is aprovision dealing with a particular state of
2 44
■Sri Lanka Law Reports! [1963] 1 Sri LR.'
affairs that existed at the time of the coming intooperation of the Constitution, these transitionalprovisions, as the name indicates, were designedprimarily to connect the present state of affairswith the past, so that the new Constitution couldbe brought into operation without any dislocation.Article 165, at the time it came into operation,did not have to deal with the situation of officersalready functioning or officiating in any post.TheConstitution started as it were with a clean slate.In the case of appointments to offices newlycreated by the Constitution like Supreme CourtJudges, a letter of appointment had to be issued.Host public officers however continued under thenew constitutional structure in practically thesame form and accordingly the provisions of Article164 provided for the continuance in service of thepersons who were holding such offices at the timeof the coming into operation of the Constitution.This was tantamount to a letter of appointment.
Article 107(4) provides that a Supreme Courtjudge and a judge of the Court of Appeal, after hisappointment, "shall not enter upon the duties ofhis office until he takes and subscribes or makesand subscribes before the President, the oath orthe affirmation set out in the Fourth Schedule.1' Inthe case of the President, Article 32(1) statesthat –
"The person elected or succeeding to the office,of President shall assume office upon takingand subscribing the oath or making and subs-cribing the affirmation, set out in the FourthSchedule…….*
In the case of Cabinet Ministers, Acting Ministers,Deputy Ministers, the Secretary to the Cabinet, andSecretaries to Ministries, Article 53 likewiseprovides that –
“A person appointed to any office referred to
SCVisuvalingsm vs. Uyanaga .(WanasundaraMi245-
in this Chapter shall not- enter upon the duties -of his office until he takes and subscribes theoath or makes and subscribes the affirmationset out in the Fourth Schedule.”
"Article 61 makes similar provision for publicofficers.
It would therefore be evident that adistinction has been drawn in the Constitutionbetween a person receiving an . appointment – anentitlement to an office' – and such appointee"entering upon the duties of his office", whichinvolves a further step to perfect and consolidatethat appointment. What Article 165(1) provides is abar or hurdle between these two stages involvingthe taking of an oath. Until that bar issurmounted, Article 165(1) states a person,although he may have an entitlement to the office,"shall cease to be in service or hold office". But,it would be noted that at no time did that officeractually function in that office.'He was never afunctionary in the true sense of the word.
Article 165(1) therefore does not purport todeal with the case of a person who had alreadyentered upon the functions and duties of hisoffice. That is the case before us and the precisesituation of the Supreme Court judges. There can beno serious objection to a person who delaysentering upon his duties being told that he is nolonger wanted or that he has ceased to be inservice or hold office. Such a person has notperfected his appointment. In fact, in such a casethe office continues to remain vacant and it callsfor a declaration of this kind to enable a newappointment to be made. But it would be a verydifferent thing to tell an officer functioning inan office (especially a judicial officer whosetenure of office is assured), that he is no longer
[1983] 1 Sri UL
246Sri Lanka Law Reports
in office. In truth and fact that would amount.to avacation of office or a removal from office. Theproper term in that context would be to use theword 'vacate*. This word 'vacate* however , can beused in a comprehensive sense even to include boththe stages indicated above. The wording of Article165(1) therefore is inadequate to catch up thepresent situation.
The correctness of this view is to some extentborne out by.the other provisions of Article 165 %When we examine Article 165(2), we see that itprovides that the Minister of Public Administration"may, in his sole discretion, permit any publicofficer, judicial officer* person or holder of anoffice to take the oath or make, the affirmationafter the prescribed date, if he is satisfied thatthe failure to take the oath or make theaffirmation within the time prescribed wasoccasioned by illness or some other unavoidablecause. On his taking such oath or making suchaffirmation, he. shall continue in service or holdoffice as if he had taken such oath or made suchaffirmation within the time prescribed”
Are not the above provisions more consistentwith the position of the requirement of the oathtaking being a bar or fetter on a person entitledto an office but who has not yet entered upon hisduties rather than being the vacation of office ofa person already officiating, in a post and hisbeing "reappointed" thereafter? In the first typeof case mentioned above, a delay in taking officeis not of great moment and could be rectifiedwithout giving rise to any complications. So, thispower to remedy the situation on the two specifiedgrounds can be safely entrusted to the Minister ofPublic Administration, and such a provisionviolates no provision of the Constitution.
On the other hand, if this provision is
sc
Visuvalingam vs. Liyanage IWanasundera,J.)
247
intended to apply to a person who had alreadyentered upon his duties, then it gives rise to anumber of important questions. I have alreadyreferred to the fact that in the case of a judgethere vould be a conflict, between Article 165(1)and Article 107(2) which ensure him continuity oftenure. If a judge has ceased tc hold office, hecannot thereafter continue in office without afresh .appointment. When the Constitution prescribesthe President as the appointing authority, couldthe Minister of Public Administration reinstate himor make such an appointment? Is it consistent withthe independence of the judiciary, entrenched bythe Constitution, that the Minister of PublicAdministration should be the appointing authorityand in his sole discretion be allowed to pick andchoose the judges who should continue in office andthose who should not.
The distinction I have sought to draw can betested by two obvious examples. First, let me takethe case of the President. How would the Presidentbe affected in the event of a failure to take theSeventh Schedule oath? The President, who is theHead of the State, the Head of the Executive and ofthe Government, and Commander-In-Chief of the ArmedForces is selected by the People at an election.Article 30(2) states that he "shall hold office fora term of six years". If, after such a country-wideelection and assumption of office, is itconceivable that the Legislature intended that thePresident should be made to vacate office merelybecause he has omitted to take the new oathprescribed by the Seventh Schedule? Incidentally,the Fourth Schedule oath taken by him is anundertaking to be faithful.to the Republic of SriLanka and to defend the Constitution to the best ofhis ability. Article 2 of the Constitution alreadycontains a statement regarding the unitary natureof the – State. The present oath is – onlysupplementary to it and an elaboration of that
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[19S3JI Sn LR.
provision^ although the Sixth Amendment deals withother matters too.
In this connection an examination of theprovisions in Article 38(1) can throw some light onthe resulting position. It deals with the vacationof office by the President. One of the grounds is –
"(d) if the person elected as Presidentwilfully fails to assume office within onemonth from the date of commencement of histerm of office,"
This provision is clearly referable toArticle 32 where the President assumes office ontaking the oath of office. It would be observedeven in this situation – which should be regardedas more than a mere entitlement since thePresident has already been elected by the whole ofthe People of Sri Lanka – it is only a wilfulfailure that can give rise to the sanction.
Let us now take the case of the judges of theSupreme Court. Article 107(2) states that a judge,ohce he begins to function –
"…shall hold office during good behaviour,and shall not be removed except by an orderof the President made after an address ofParliamentj supported by a majority of thetotal number of Members of Parliament(including those not present) has beenpresented to the President for such removalon the ground of proved misbehaviour or,incapacity."
this is the only provision in theConstitution dealing with the removal of a judgewho is already holding office. If the wording ofArticle 165(1) is held to be appropriate to catchup the case of a functioning judge, it would then
SCVisuvaVmgam vs. Uyanage (WanaaunderaM1249
be in clear conflict with the provision of Article107(2), which is a special and specific provision.There is nothing in the amending Article 157 A (7)as for example by the use of prefatory words suchas "notwithstanding any ether provision of -theConstitution" to show that this provision shouldprevail over any other provision of theConstitution. As in the case of the President, isit conceivable that a judge, who may fail throughan oversight or some mistake to take the SeventhSchedule oath, should have to vacate office?
Mr. Nadesan conceded that the requirement oftaking the Seventh Schedule oath is nonetheless, alegal requirement, in the sense that where a personwho is required to take the oath and has throughnegligence or oversight failed to do so, should atthat stage be required to comply with the law. Ifhowever there is a wilful refusal to take the oath,then there is undoubtedly a transgression of thelaw. But, even this would not. lead to an automaticvacation of office but could only provide a groundfor disciplinary action. A wilful refusal to takeihs oath could amount to misconduct ormisbehaviour, but not a mere omission, or mistake.This interpretation, eminently reasonable, preventsany conflict arising between Article 157 A (7) onthe one hand and Articles 38 qnd 107(2) etc. on theother and would tend to reconcile the. variousprovisions of the Constitution 'rendering themharmonious in operation. Any< other interpretationwould result in upsetting a number of basicconcepts embodied in the Constitution. 1
1 am therefore inclined to think that^his isanother reason, even more qpgedt than the onereferred to by the Chief Justice, for holding^ asMr. Nadesan contended, that the judges could nothave functioned otherwise than as ufe jura. judgtesduring the period under consideration. –
250 Sti Lanka Law Reports. [1983J1 Sri LR.
In regard to the defence of estoppel, waiveror the prohibition against approbation andreprobation (or in whatever way that defence isexpressed) taken by learned Deputy SolicitorGeneral, in my opinion such a defence is nottenable in the circumstances of the present case.Let us remind ourselves again that the questionbefore us is the very constitution of the SupremeCourt, the validity of the continuation of theservice of the judges, and the legality of the actsof this court and the judges, and not with anyprivate right of the judges as individuals.
An examination of the case law both local andfrom other jurisdictions makes it abundantly clearthat the courts have uniformly – excluded theapplication of such a defence where an authority orperson against whom the estoppel is pleaded owes aduty to the public, or a -section of the public oreven to some other individual against whom theestoppel cannot fairly operate. In the case of aconstitutional provision such a’ presumption isgenerally inevitable. v…. . v
Halsbury's Laws of England (Ath'Edn.) Vol. 16 atparagraph 1575 sets out the legal '-position inEngland. The U.E. of course does not have a writtenConstitution.
”1515. Estoppel against Statute . The doctrineof estoppel cannot be invoked to rendervalid a transaction which the legislaturehas, on grounds of general public policy,enacted'is to be invalid, or to give theCourt a jurisdiction which is denied to it bystatute, or to oust the court's statutoryjurisdiction under an enactment whichprecludes the parties contracting out of itsprovisions. Where a statute, enacted for thebenefit of a section of the public, imposesa duty of a sesirive kind, the person charged
. Visuvalingam vs. Liyanage (Wanasundera,J.)
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SC
with the performance of the duty cannot byestoppel be prevented from exercising hisstatutory powers'*
Spencer ' Bower and Turner in their workEstoppel by Representation (2nd Edn.) at page 134deal with the waiver of the protection of astatute. Where a certain transaction or a course ofaction is illegal and void and absolutelyprohibited, no question of waiver can arise. Inother cases it has been contended that a statutoryprovision for the benefit of a party could, bewaived. They state :
The soundness of this contention in anyparticular case, whether of express contractor of estoppel (for the principles whichgovern the former obviously govern the latteralso) depends upon the question whether theright which is abnegated is the right of theparty alone, or of the public also, in thesense that the general welfare ofthe
community, or the interests of the class ofpersons whom it is the object of the law toprotect, cannot be secured in the mannerintended without prohibiting the waiver orestoppel. ' In the case of. express contractto waive it has always been held that thedoctrine embodied in the familiar formula,quilbet . potest renuntiare juri pro se '.introducto., is subject to the limitation thattherenouncing party must be able to
establish that the 'jus* was intended by thelegislature for his benefit only pro se solo.If the public, or a class or section of thecommunity, are interested, as well ashimself, in the general observance of theconditions prescribed by statute, it hasalways been held on the ground of publicpolicy that there can be no waiver, even byexpress contract or consent, of the right to
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[1983J1 Sri LR.
such observance by any individual party; butwhere, on the other hand, no public interest,and no interest intended to be promoted orprotected by the statute, is in the leastaffected by the contract or consent towaive, and the matter is one which concernsthe parties alone, suf-h contract or consenthas never been interfered with, but on thecontrary has always been enforced. So also,in cases of waiver by conduct which givesrise to an estoppel, the same essentialdistinction has always been observed. On theone side of the line are the cases where theestoppel or waiver, if allowed, would defeatthe objects of the statute, and injure theinterests of the public, or of persons otherthan the immediate parties, and wheretherefore the affirmative answer ofillegality has prevailed, and the estoppelhas been defeated. On the other side of theline are the cases in which no interests,other than those of the immediate parties,can pessibly be affected by allowing theestoppel, which accordingly has in such casesusually prevailed.
Estoppel as to Jurisdiction.
142. Not even the plainest and most express.contract or consent of a party to – litigation canconfer jurisdiction on any person not alreadyvested with it by the law of the land, or add tothe jurisdiction lawfully exercised by any judicialtribunal; it is equally plain that the same resultcannot be achieved by conduct or inaction oracquiescence by the parties. Any such attempt tocreate or enlarge jurisdiction is in fact theappointment of a judicial officer, by a subject, andas such constitutes a manifest usurpation of theRoyal prerogative"
SCWsuvalihgani vs. Liyanage (WanasundanJ.)■ 253
Vide Martioe Electric. Go. Ltd* vs. GeneralDairies Ltd.,
Customs & Excise Commissioner vs. Hebson Ltd.,Society of Medical Officers of Health vs.Hope„N.W. Gas Board ys. Manchester Corporation,Southend-On-Sea Corporation vs.Hodgson (Wick-ford) Ltd.,
Welch vs. Nagy.
Even in the case of legal provisions whichostensibly appear to confer rights solely in favour -of individuals, a deeper analysis of the relevantconstitutional or statutory provisions mightindicate that they contain an element of publicinterest or are really based on grounds of publicpolicy. This is the view taken by the IndianSupreme Court in regard to the question offundamental rights guaranteed by the IndianConstitution. The American courts however havetaken a different view,.
The leading Indian case on the subject isBasbeshar Nath vs. Commissioner of Income Tax (23).In that case S.R. Das C.J., Bhagwati J., Kapur J.and Subba Rao J. held that the fundamentalrightunder Article 14 involved a matter of public policyand could not be waived. Bhagwati J. and Subba RaoJ. were prepared to extend the proposition to coverall fundamental rights.
The majority declined to follow the Americandecision. S.K.Das J. alone dissenting took the viewthat the doctrine of waiver could apply in thatcase and that there was no such vital distinctionbetween the American and the Indian Constitutionsnecessitating a different treatment of the matter.Seervai in his well known work Constitutional Law
254 .sri Lanka Law Reports[1983] 1 Sri LH
of India (2nd Edn.) p.186 criticises the majorityjudgment. He writes –
"S.K.Das,J, dissented, holding that therewere no such differences between the U.S.and the Indian Constitutions as would makethe doctrine of waiver applicable to theformer and not to the latter. The correcttest to apply to each fundamental right wasto inquire whether it conferred a right on aperson primarily for his benefit. If it did,that right could be waived. It is submittedthat the view of S.K.Das,J-is correct".
This criticism, it would be seen is in no waydirected against the legal principles applicable towaiver enunciated earlier .in this judgment. Thedifference in views of the majority andthe
dissenting judge S.K.Das appears to me not one ofprinciple but in the manner of their applicationto a given set of facts. Indian State Courts havefollowed this judgment. Vide Ram Gopal vs. NationalHousing Corporation. ,(24), Bhaskar Moharana vs.Arjun Moharana,. (25).
The issues before us are undoubtedly matters of.high constitutional law. How can it everbe
contended that this is a matter of private rightswhen our very status and our capacity to functionas judges are in dispute? It is' the view of thelearned Deputy Solicitor General that we had ceasedto be judges, between the 8th and 15th September1983, although he was prepared to concede for thepurpose of the application before us that on the8th and 9tb. September the proceedings had before uscould be treated as valid on the principle of defacto judges. The challenge to our jurisdictionnevertheless remained.
The issues relating to the legality of thecourt, its judges and the acts performed by them
-.SC_. Visuvalinggm vs, Liya.iage (WanasundaraJ.).255
are issues which when presented leave us no choicebut to decide them according to law by virtue ofour position as judges who are constitutionallyvested with the power and duty to decide such legalissues. Our powers of decision in this matter arealso referable to a lawful authority we held from atime prior to 8th September which is reinforced ifnecessary by the appointment of 15th September.1983. This fact is of decisive importance in thiscase. There can be no estoppel against an authorityor power vested in an officer of State that is tobe exercised in the interests of the People. Ourdecision that the judges continued to hold officewithout interruption or break under the originalletters of appointment finally concludes thismatter.
The appointment of the 15th September, in myview, does not derogate from the authority withwhich we had been clothed anterior to such date. Inthis context I would also like to remark that thereis an ever present duty vested in all of us,whether we be judges, public officers, or membersof the public, to uphold the Constitution and tosafeguard the rights of the People in whom alonethe Sovereignty of the State is vested. It behovesall of us therefore to take such action which wemay consider lawful and proper to protect thoserights and to ensure the smooth and harmoniousfunctioning of the machinery of State.
In view of the rulings given earlier as regardsthe directory nature of the requirement containedin Article 157A and the effect of its non-compliance, it appears to me quite unnecesary toconsider the question (which was really raised byMr. Ami z and not by Hr. Nadesan) deter mining the lastdate for taking the oath prescribed by the SeventhSchedule. As to what are the precise principles ofthe English law in regard to the computation of
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time, to what extent they .apply or should apply,here and as to how a constitutional provisionrelating to time as is contained in Article 157 A(7) should he interpreted are difficult questionson which reasonable men can differ. In my view this. question could be safely left for a futureoccasion.
On the.second question referred .to this bench, Iam again in agreement with .Chief Justice thatthe provisions of ^ticle• directory ;
and hot;■■mandatory,’”
In the result I would hold that we havecontinued and continue to be judges de jure fromthe inception of the hearing of this case until nowwithout any break and that it would be competentfor a bench of., judges nominated by. the ChiefJustice- comprising all or some of us to hear anddispose of this application for relief underArticle 126.
WfMALARATNE, J.
1 have had the benefit of reading the judgmentsprepared by the Chief Justice and by Sharvananda,J.
I agree with them that since the Judges of theSupreme Court, and of the Court of Appeal had takenthe oath in the form set out in the SeventhSchedule before the Chief Justice or before anotherJudge of the respective courts prior to the expiryof one month from the date on which the SixthAmendment came into force, their failure to takethe same oath before the President of the Republicdid not result in their ceasing to hold office onthe termination of the said one month.
The failure of the Judges to take the oathbefore the President was due to the unfortunatecircumstance that the printed copy of the SixthAmendment reached the Judges on or about 7thSeptember 19S3. The Bill which was examined on
_SSVist/valingaw vs. Lsyanage ^(Wimsiarstne, J.)257
3.8,83 for its constitutionality by a Full Bench of.the Supreme Court did act contain a requirementthat the oath should be taken by them before thePresident. 'That requirement had been introduced .by.Parliament at the Committee stage and was unknown'to. the Judges. Hence the failure to take the oathbefore the President was not deliberate but due toundfortunate circumstances.
The above decision, makes it necessary to. .determine fche question whether the . period , k of ‘ one -month for taking the oath ended on-the 8tb. or the-9th of September. There are decided cases some ofwhich support the 8th whilst others support the9th. They relate mostly to computation of timelimits in contracts between perries such as tenancyagreeements, or in cases where parties had' beancriminally involved or to time limits imposed intostatutes or Rules of Court. But here we are calledupon to interpret a time limit contained in aConstitutional provision. The Chief Justice hastaken the view that ,!the final date appears to bethe 8 th September”, I would,however, like
Sharvananda, J. prefer not to determine thatquestion as it is now not neecess&ry, and as it isnot the habit of the Court to decide questions of aconstitutional nature unless absolutely necessaryto the decision of the case. •
Both the Chief Justice and Shayyanan Aa,J. havegiven cogent reasons for overruling, the -twopreliminary objections raised by the learned DeputySolicitor-General. I am in entire agreement withthem and I overrule the.objections.
My conclusion on the first of the two mattersreferred to the Full Court is that the Judges didnot cease to hold office at any time, and ..thattherefore the proceedings of the 8 th and 9thSeptember 1983 are valid proceedings..
258 .Sri Lanka Law Raports[1983] 1 Sri LR.
The second of the two questions referred to usrelates to the legal validity of an order that ismade after the expiration of the two month periodreferred to in Article 126 (5). The Judges have sofar complied with this requirement and given theirorders within the stipulated period. But therecould be occasions where unfortunate circumstamcessuch as illness of a Judge or other unforseen eventmay render compliance with this requirement notpossible. I am therefore of the view that theprovisions of Article 126(5) as to the time limitare directory only, and not mandatory. The Courtwill, of course, be conscious of its resposibilityand will undoubtedly not delay an orderunnecessarily.
RA7WATTE, J.,
I have had the privilage of reading thejudgments of my Lord the Chief Justice and mybrother Sharvananda, J. The circumstances which ledto this Full Bench being constituted-and the issuesthat arose for consideration by the Full Bench havebeen set out in the judgment of the Chief Justice. 1
1 am in agreement with the Chief Justice, for thereasons set out by him, that the provision in' sub-Art icle 7(a) of the Article 157A of the SixthAmendment to the Constitution which requires theoath or affimration set out in the . SeventhSchedule, to be taken "before such person or bodyif any, as is referred to " in the Articles of theConstitution specified in sub-Article 7 of Article157A, by the categories of officers or persons .referred to in those Articles, is directory and notmandatory. It may be mentioned that this provisionin sub Article 7(a) of Article 157A which requirescertain categories of officers and persons to takethe oath in the Seventh Schedule before aparticular person or body was not in the Bill thatwas referred to this Court * -,forits special
sc
Vtauvaiingam vs. Uyanage (Ratwatta, J.).259
determination by His Excellency the President interms of Article 122(1) of the Constitution. Thisprovision is contained in an amendment that hadbeen made at the Committee stage of the debate onthe Bill. I have nothing further to add to thereasons set out by the Chief Justice for hisfinding that this provision referred to above isdirectory and not mandatory.
I am of the view that as the Judges of theSupreme Court and the Court of Appeal took theiroaths in the form set out in the Seventh Schedulebefore each other well within the period prescribedin the Sixth Amendment, they did not cease to holdoffice by reason of their failure to take the oathbefore the President,
The Sixth Amendment was certified by the Speakeron the 8th of August , 1983. Conflicting argumentswere adduced by Mr.Nadesan and the DeputySolicitor-General as to when the perio4. of onemonth prescribed in Article 157A(7)^expired. Thequestion that arose was whether the- last day wasthe 7th, the 8th or the 9th September. To resolvethis question it is necessary to decide how time by"calender month" is to be reckoned. In my view adecision on this question now is purely academic, inview of the finding that the Judges lawfully tooktheir oaths in terms of the Seventh Schedule long .prior to the 7th September 1983, i._e. well withinthe prescribed time. I accordingly agree withSharvananda*J. that it is not necessary for thisCourt to pronounce a finding on this question.
As regards the issue whether the requirement inArticle 126(5) of the Constitution that the SupremeCourt should hear and finally dispose of anapplication made under that Article within twomonths of the filing of such petition, is directoryor mandatory, I concur with the finding of theChief Justice for the reasons, given by him, that
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the said requirement is directory and notmandatory. That does not mean that the Judges willtotally disregard the time limit of two months.Theywill continue to abide by the time limit as theyhave hitherto done, unless they are prevented fromdoing so due to circumstances beyond their control.
There now remains the preliminary objectionsraised by the Deputy Solicitor-General. The ChiefJustice and Sharvanattda, J. have dealt with thematter exhaustively and I am in agreement withtftSlr fifxdlngS' Oft both the objections. Iaccordingly agree that both the preliminaryobjections be dismissed.
SOZA.J.,
I have had the advantage of reading in draft thejudgments prepared by the Chief Justice andSharvananda,J. I agree with the Chief Justice thatfor the reasons given by him the stipulation inArticle 157A(7) of our Constitution that the oathin terms of the Seventh Schedule should be takenand .subscribed by the Judges of the Supreme Courtand Appeal Court before His Excellency thePresident is directory and that the oath in termsof the Seventh Schedule which the Judges of – thesetwo Courts in fact took before their fellow Judgesveil before the expiry of one month of the date onwhich the said Article came into force is valid anda sufficient compliance with . the Constitutionalrequirements.
On the pleas of estoppel, waiver andacquiescence I agree with what has been said onthem by the Chief Justice and Sharvananda, J. Iwould like to emphasise that judicial office is astatus and transcends the bounds of privatecontract. The principle applicable is embodied inthe maxim privatorum conventio juri publico non-deroqat. It is almost universally acknowledged that
_SC _Viiuvalingam vs. Liyanage ’(Soza, J.). .261
• . – – •
estoppel cannot operate against a statute. Muchlesfe will it operate against provisions in aConstitution. Security of tenure of office of* theJudges of the Supreme Court and Court of Appeal is -aft essential component of judicial independence andis entrenched in our Constitution as a principle ofState Policy for the benefit of the SovereignPeople. No amount of waiver or acquiescence even bythe judges themselves can defeat the security oftenure of judicial office enshrined i& theConstitution.
Accordingly I concur with the conclusion of theChief Justice that the Judges of the Supreme Courtand Court of Appeal did not cease to hold office atany time.
I also agree with the Chief Justice that theprovisi&tf•in regard to time in Article 126(5) ofour Constitution is directory.
On the controversy regarding the mode ofcomputation of the terminal date for taking theoath in terms of the Seventh Schedule 1 agree withSharvananda^J. that our decision that the Judgestook a valid oath and did not cease to hold officerenders it unnecessary to express an opinion on thequestion.
The preliminary objections raised by thelearned Deputy Solicitor-General have been dealtwith by the Chief Justice and Sharvananda, j. and Iagree with them that they are unsustainable andshould be dismissed. I too would dismiss theseobjections.
RANASiNGHE, J.,*
I have had the advantage of perusing, in draft,the judgment of my Lord the Chief Justice, and as Ifind myself in respectful disagreement with the
262 . Sri Lanka Law Reports. _[1983]1 Sri LR,
majority view of this Court, I now set down myapproach to the several matters that were argued atthe hearing before this Court.
The two matters, which were referred to a fullBench of this Court, are :
The legal validity of the proceedings ofthe 8th and 9th September 1983.
The legal validity of an Order that is madeafter expiration of the period of two monthsreferred to in Article 126 of. the Constitution.
Are the provisions of paragraphs 7(a) and 7(b) ofArticle 157A of the Constitution, as set out in the'Sixth Amendment, imperative or directory?
The provisions of paragraphs 7(a) and 7 (b) ofthe said Article 157(1) of the Constitution, whichhave been brought into operation by the SixthAmendment, require any officer and person referredto therein to '‘make and subscribe, or take andsubscribe, an oath or affirmation in the form setout in the Seventh Schedule, before such person orbody if any, as referred to in that Article, withinOne month of the date on which this Article" comesinto force"; and they further proceed to providethat : "the provisons of Article 165 and Article169(12) shall, mutatis mutandis, apply to, and inrelation to, any person or officer .who fails totake and subscribe, or make and subscribe, an oathor affirmation as required by this paragraph".
The provisions of paragraphs 7(a) and 7(b), inso far as the judges . of the Supreme Court areconcerned, set forth three requirements : (1) thatthe oath or affirmation set out in the SeventhSchedule be made or be taken and subscribed, (2)that such oath or affirmation be made or be takenand subscribed before the President of the
SC. .Visuvalingam vs. Liyanage (Ranasinghe, J.). . 263
Republic, and (3) that such-oath or affirmation bemade or be taken and subscribed within one month ofthe date on which the said Article 157(A) comesinto force. 'The said Article 157(A) came intooperation on 8.8.1983.
The submission put forward by learned Queeen'sCounsel appearing for the Petitioner is that, ofthe three requirements referred to above, only tworequirements, viz} the first – relating to themaking or taking and subscribing an – oath oraffirmation -, and the third relating to theperiod of time within which such oath oraffirmation is to be made or taken and subscribed -are mandatory, and that the second requirement -relating to the person before whom such oath oraffirmation be made or taken and subscribed – isonly directory. This contention is founded upon theargument : that, when recourse is had to theprovisions of Article 165(1) and the necessarychanges made upon the basis of the term mutatismutandis, what transpires is that Article 165(1)provides the consequences only in regard to afailure to take the prescribed oath within aspecified period $ that, that being so, theLegislature has set out a penalty for defaults incomplying with only the the first and ‘‘thirdrequirements of Article 157A (7)(a) and (b) ; that,as no sanction has been provided for a failure to,-comply with the second-the requirements of makingor taking and subscribing the prescribed oathbefore the President of the Republic – of the threesaid requirements, it must in law be held to bedirectory ; that a substantial compliance with suchdirection would suffice ; that, therefore, theoaths and affirmations made or taken and subscribedby the judges of the Supreme Court, before eitherthe Chief Justice or another of the other judges ofeither the Supreme Court or the Court of Appealwithin the said period of one month, are valid.
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This contention thus requires a consideration ofthe meaning and the application of the phrase"mutatis mutandis". Wharton's law Lexicon (Athedt.) p. 677 explains the rule as :"with the
necessary changes in points of detail". Jowitt's .Dictionary of English Law also explains the rule inthe same way.
Black's Law Dictionary (4th edt.) 1951, atp.1172, explains it as :"with the necessary
changes in points of detail, meaning that mattersor things are generally the same, but to be alteredwhen necessary, as to names, office and the like".
Of the three authorities – all of which are fromthe courts in India – cited to us as being relevantto this particular question, the case of ' Kushi' RamRagunath Sahai vs. Commissioner of Income Tax ,(26)decided by the Punjab High Court is the mosthelpful. Falshaw, J. with whom Kapur, J. agreed,has, in his judgment, referred to the other twoauthorities cited to this court at the hearing ofthis matter. The provisions of law which wereconsidered in that case were :Rule 36, of the
Appellate Tribunal Rules framed under the IncomeTax Act of 1922 provided that, inter alia, Rule 7of the said Rules – which provided that amemorandum of appeal to the Tribunal which is sentby post, shall be deemed to have been presented onthe day on which it is received in the office set.out therein – should apply mutatis -jnutandis to "anapplication made under sub-section (1) of S.66:
Sec. 66(1) of the said Act provided for applicationfor reference to be made.in the prescribed form tothe Income- Tax Appellate Tribunal within six days.1The principal point of consideration was how theprinciples set out in Rule 7, in regard to thepresentation of a memorandum of appeal, should beapplied to an application made, under Sec. 66(1).The manner in which it should be done was set outquite lucidly and succinctly by Falshaw,J. asfollows:-
sc
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265
* There would seem to be no doubt that in.,•this context the phrase 'mutates mutandis' hasits usual meaning, that is, that only suchverbal changes are to be made in the rulesmentioned in Rule 36-as would make the princi-ples embodied in these Rules applicable toapplications under sub-section (1), S. 66. Theonly change which appears to me to benecessary is the substitution of the word"application under sub-section (1) of S. 66"for the words "memorandum of appeal" whereverthey occur. The net result would thus appearto be that anyone who wishes to move theTribunal under S. 66 (1) is required to posthis application in time for it to reach theoffice of the Tribunal within sixty days ofthe receipt by him of a copy of the appellateorder of the Tribunal and, indeed,. I shouldhardly have thought, that the point admitted ofany doubt, or was even capable of argument,
II
Feetham, A.J.A., in the case of ?Touriel vs.Minister of Internal Affairs Southern Rhodesia»(27) (which said authority T gathered from thejudgment of My Lord the Chief Justice) at page 545,cites with approval the interpretation given inWharton's Law Lexicon (5th Edt.) of the phrasemutatis mutandis as "with the necessary changes inpoints of detail" as supporting the view that thetest' to be applied, for the purpose of ascertainingin any particular case what are "outanda", is"necessity" rather than "fitness”. The approach. adopted by me in the application of the rulemutatis mutandis to the two relevant provisions inthe Constitution, 157(A)(7) and 165(1) does not inany way, in my opinion, offend against theprinciples set out in the judgment of Feetham,A.J.A. The changes made are only those that have of"necessity" to be changed, as contemplated by theframers of the Constitution and those who adopted
– 266 ,.Sri Lanka Law Reportsf1983J1 SriLR.
-it. No change has been-made'on the basis that sucha change is a "fitting" change – as was done in theoriginal court in the South African case (supra)where changes were effected by the substitution ofwords, which were not found in the enablingsection, which, in that case, was Sec. 8 of theSouthern Rhodesia Naturalisation Act.
That part of paragraph (7) of Article 157(A),which is relevant to this particular question, setsout.that the provisions of Article 165 shall,mutatis mutandis "Apply to and in relation to ", aperson or officer "who fails to take and subscribe,or make and subscribe, an oath or affirmation asrequired by this paragraph". This provision clearlyset out the nature and the scope of the changeswhich should be effected in the provisions ofArticle 165(1). Such changes should only apply toand be in relation to a person or officer who hasfailed to do the act as required by this paragraph.Such changes are not to be made to apply to and bein relation to a failure to comply with each one ofthe said requirements set out in that paragraph.The determination of the question, whether a personor officer is in default, has to be made withreference to the provisions of Article 157A and notwith reference to Article 165. A default under theprovisions of Article 157A arises when there is anon-compliance with any one or more of the threerequirements – detailed earlier – set out in thesaid Article. The faiilure is to be' determined byreference to the requirements set out in Article157A and not by reference to any requirements setout in Article 165. A violation of or a non-compliance with any one of the three requirementsset out in Article 157A would constitute a failureto take and subscribe or make and subscribe an oathOr affirmation as required by paragraph (7) ofArticle 157A. Once such a failure arises, resorthas then to be made to Article 165 to discover theconsequence (or consequences), if any, of such
.SC .Visuvalingam vs. Uyanage (Ranasinghe, j.)267
j— —=—t
failure. The consequence — or consequences – sobeing looked for is the consequence of a failure tocomply with the requirements of Article 157A, andnot that of a falure to comply with therequirements of Article 165. It is not an exerciseto discover the consequence of a non-compliancewith each one of the three requirements set out inArticle 157A. It is not to find out what non-compliance with each one of such requirements wouldentail. It is rather an exercise to find out what’ would be the fate of a person or officer who is.already in default because he had not complied withoneormoreof the three aforementioned
requirements of Article 157A. The principles setout in Article 165 are to be made applicable notfor the determination of either what constitutes adefault in terms of the provisions of the Article157A, or what, if any, a failure to comply witheach one of the aforementioned three requirementsset out in Article 157A would entail, but for thespecific determination of the consequence, if any,of the failure of a person (or officer) to take andsubscribe, or make and subscribe, in the manner setout in Article 157A, the oath or affirmation setout in the said Article 157A. Therefore, thechanges, which are necessary to be made in Article165 (1), would be : in the first sentence appearingtherein by the substitution for all the words "setout in the Fourth Schedule", the words "as required.by paragraph (7) of Article 157(A)"; and, in thesecond sentence therein, by the substitution forall the words beginning with the words "any" andending with the word "Gazette", the words "anyperson or officer who fails to take and subscribe. or make and subscribe, an oath or affirmation asrequired by paragraph 7 of Article 157A". Theresulting positipn would be that a person?brofficer, who fails to comply with even one of* theaforesaid three requirements set out in paragraph(7) of Article 157A, being a person or officer whohas failed to take and subscribe, or to make; ‘ and
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.subscribe, an oath or affirmation as required bythe said paragraph(7) of Article 157A, would ''ceaseto be in service or hold office". The second of thethree requirements set out in paragraph (7), andreferred to earlier, of Article 157A is also,therefore, a provision of law the non-observance ofwhich would attract to it the penalty set out inArticle 165(1).
Although in this view of this, matter, it is notnecessary to consider further this question, itappears to me that, even if the penalty set out inArticle 165(1) does not apply to a non-observanceof the aforementioned second requirement set out inArticle 157A (7), there is a further aspect to thisquestion, whether the said requirement is in itselfa mandatory provision. The question whether astatutory provision,, setting out the manner inwhich a particular act, ordained to be carried out,has to be done, is imperative or directory arisesfor consideration only when the consequence of afailure to comply with such direction is not setout in such enactment — Bindra i Interpretation ofStatutes -6 edt -ps 546-549, 561, 565, Maxwell :Interpretation of Statutes (9 edt) p 373-4,
In this connection it seems to me to be helpfulto bear in mind the following principles whichappear in Bindra's Interpretation of Statutes(supra) page 549 et.seq.. : Whether a* statutoryprovision is mandatory or directory depends uponthe intention of the Legislature and not upon thelanguage in. which the intent is clothed : Themeaning and intentions of. the Legislature must-govern and these are to be ascertained not onlyfrom the phraseology of the provision but also byconsidering" its nature, its design and theconsequences which would flow from construing itone way or the other : Further to this end, anenquiry into the purpose behind the enactment ofthe T oislature must always be made : It is < he
Visuvalingam vs. Liyanage (Ranasinghe, J.)
269,
-„SC
duty of the Court to get at the real intention ofthe Legislature by carefully attending to the wholescope of the enactment ; No universal rule could belaid down 5 It depends not.on the form, but uponthe intention of the framers ; Where a power orauthority is conferred with a direction thatcertain regulation or formality shall be compliedwith, it seems neither unjust nor incorrect toexact a rigorous observance cf it as essential tothe acquisition of the right or authority. LordCampbell, L.C., formulated the test to be adoptedin regard to this question, in the case of TheLiverpool Borough Bank vs. Turner (28), as :
"in each case you must look to the subject
matter, consider the importance of the provisionthat has been disregarded and the relation of thatprovision to the general object intended to besecured by the Act, and upon a review of the casein that aspect, decide whether the matter is whatis called imperative or only directory."
In regard to the interpretation of aConstitution it has to be remembered that, althougha Constitution, being essentially in the nature ofa statute, the general rules governing theconstruction of statutes in the main apply to theconstruction of Constitutions also, and that thefundamental rule of interpretation is the same,namely that the Court will have to ascertain theintention gathered from the words of theConstitution, yet, by reason of the special natureof a Constitution as being the fundamental law,there are some special rules for the interpretationof a Constitution – Bindra (supra) pages 14, 808 etsec. : The language of a Constitution should beinterpreted as if it were a living organism capableof growth and development, if interpreted in abroad and liberal spirit, and not in a narrow andpedantic sense – Bindra p.807 j That, although a' broad and liberal spirit should inspire those whointerpret a Constitution, they are however not free
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i
to interpret of pervert- the language of theenactment in theinterestsof legalor
constitutional theory – Bindra – 825:Where two
constructions are possible, that one which wouldensure a smooth and harmonious working of theConstitution should be adopted, and that the Courtshould adopt that which will implement, and discardthat which will stultify the apparent intention ofthe makers of the Constitution – Bindra:p 820 :
That before making a choice between two alternativemeanings, the Court must read the Constitution as awhole, take into consideration its different paitsand try to harmonise them : that the Court shouldproceed on the assumption that no conflict orrepugnancy between different parts was intended bythe framers of the Constitution. That, if theSimplest and most obvious' interpretation of aConstitution is in itself sensible, it is then mostlikely to be that which was meant by the people inits adoption ; and that words or terms used in aConstitution must be understood in the sense mostobvious to the common understanding at the time ofits. adoption, although a different rule might beapplied in .interpreting Statutes and Acts ofParliament – !Bindrai p 810,818
The judgment of Cwyer.C.J., in the case of-In reC.PrMoior Spirit Act,(29) sets out, at page 4,several of the principles, referred to above, asfollows :
"The Judicial Committee has • observed thata Constitution is not to be, construed inany narrow and pedantic sense :per Lord.
Wright in 1936 AC 578 at 64 – James vs.Comm, of Australia .Hie rules which applyto the interpretation of other statutesapply, it istrue, equally to the
interpretationofa constitutional
enactment. But their application is of.necessity conditioned by the subject matter
.SC.Visuvalingam vs. Liyanage (Ranasinghe, J.V271
of the enactment itself; and I respectfully .adopt the words of a learned Australian Judge:
Although we are to interpret the words of theConstitution on the same principle of.■interpretation as we apply to any ordinarylaw, these very principles of interpretationcompel us to take into account the nature andthe scope of the Act that we are interpreting.- to remember that it is a Constitution, amechanism under which laws are to be made, andnot a mere Act- which declares what the law isto be' – 1908, 6 Com. L.R.469, per Higgin,J."
Where the provision of law, which has to bedecided on as being mandatory or directory, is onecontained in a Constitution, the principlesrelevant to such a determination have■been set downby Bindra – supra – at pages 860-861 as : "It is anestablished rule that constitutional provisions areto be construed as mandatory unless, by expressprovision or by necessary implication a differentintention is manifest. Some cases even go so farto hold that all constitutional provisions aremandatory. But more accurately, the .test as towhether a provispn is mandatory or directory -is theintentioh of those Who framed and adopted it. Theintention is to be gathered not so much from ' a'technical construction of particular words, as froma consideration of the language and purpose of theentire clause. There is a strong presumption infavour of it being mandatory. But if it appearsfrom the express terms of a provision or by'necessary implication from the language used thatit. was intended to be directory only it will be
sa- construed.. As a general rule., all pro-
visons that, designate in express terms the time ormanner .of doing particular acts and that aresilent as to performance in any other manner .are
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Mandatory and must be followed. It is from thecontext, along with the other circumstances thatthe nature of the provisions is to be ascertained,and the mere use of the words such as ,5shaIlM isnot conclusive in this respect.
The principles referred to above are also setout in the Corpus Juris Sncundun American- re-statement – Vol 16- Constitutional Law Sees. 61 ,63 pages 174- 176, 177,
When the question, whether the aforesaid secondrequirement set out in paragraph (7)' of Article157A – dealing with the person before whom the saidoath or affirmation is to be made or . taken andsubscribed – is mandatory or directory, isconsidered upon the basis of the principles set outabove, if seems to be clear that the Legislaturedid intend that the judges of the Supreme Court(and of the Court of Appeal) should make or takeand subscribe even the oath or affirmation set outin the Seventh Schedule before the President of theRepublic and no other. A consideration, .of thequestion, whether the aforesaid second requirementis mandatory even though no penalty for . notcomplying with such requirement has been expresslyset out, will be on the assumption that theconsequence set out in Article 165(1) is applicableonly to the first and third of the aforementionedrequirements and not to the second. Even so, thereare, as.far.as the judges of the Supreme Court- atany rate are concerned, several significantcircumstances the cumulative effect of which is toindicate clearly that the Legislature did intendthat the said second requirement should also bejust as. imperative as the other two requirements.
The Supreme Court is vested, under theConstitution, with a sole ' and exclusiveconstitutional jurisdiction in respect of Bills tobe exercised, inter alia, on being invoked by the
SCVisuvalingam vs. Liyanage (Ranasinghe, J.)273
President of the Republic, and also with a sole' andexclusive jurisdiction in the interpretation of theConstitution. The President of the Republic is alsoentitled to refer to the Supreme Court, in order toobtain the view of the Supreme Court thereon, anyquestion of fact or law, which,, in the opinion ofthe President of the Republic, is of such natureand of such public importance that it is expedientto obtain the opinion of the Supreme Court. TheSupreme Court alone has jurisdiction to hear anddetermine legal proceedings relating' to theelection of the President of the Republic. TheChief Justice is vested with the power to express,in certain circumstances, his opinion in regard tothe inability of the President of the Republic toexercise temporarily the powers, duties ' andfunctions of the President of the Republic. In theConstitution, as it stood before the SixthAmendment, the Oath of Office – as set out in theFourth Schedule – to be taken or made andsubscribed by every person appointed to be or actas the Chief Justice, President of the Court ofAppeal or a Judge of the Supreme Court or Court ofAppeal had to be taken before the President of theRepublic, who is also the person who appoints allsuch judges.
One of the Articles referred to by theprovisions of Sub-Article (7) of Article 157A isArticle 32. Article 32(1) sets .out the personbefore whom the President of the Republic isrequired to take or make and subscribe the oath oraffirmation before the President of the -Republicassumes.office. It is not unreasonable .to suppose -having regard to the circumstances in which itpassed the Sixth Amendment – that the Legislaturedid Intend that the President of the Republicshould take or make and subscribe the oath oraffirmation, set out in the Seventh Schedule also,in the same manner as the President of the Republic
. 274:Sri tanka Law Reports.-[1983] 1 Sri LJL
was required to do by the – provisions of Article32(1).
A consideration of the foregoing provisionsleads one to the conclusion – a conclusion -which isboth reasonable and irresistible – that theLegislature* even if -it had failed to state-expressly that the consequence of the failure tocomply with the aforesaid second requirement shouldbe the same as that which is prescribed forfailures in regard to either the first or the thirdof such requirements, did, nevertheless, intendthat the judges of the Supreme Court should take ormake and subscribe the oath or affirmation set outin the Seventh Schedule also .before the Presidentof the Republic, the same person before whom theoath or affirmation was taken or made andsubscribed, in terms of Article 107(4), by thembefore they entered upon the duties of theiroffice.
There is yet another circumstance which alsotends, though on a lower note, to support this viewof what the intention of the Legislature was. Thesaid second requirement was not found in the Billthat was presented to the Parliament fordiscussion.. It has been introduced only at theCommittee stage – a stage which is reached after adiscussion of both the principles of the Bill and- the provisions of the Bill by the members of theHouse.
Reference must be made to two circumstanceswhich would seem to detract from, the view that thesaid requirement was intended to be strictlycomplied with. One is the absence of an expressdirection in regard to certain very responsible andkey members of the Government, viz. the PrimeMinister, and the Cabinet Ministers, that theyshould take or make and subscribe the oath oraffirmation set out in the Seventh Schedule in a
..SC.Visuvelingam vs. Liyanage (Ranasinghe, J.)..275
specific manner. It must, however, be noted that,as far as the persons holding such offices areconcerned, the oath, or- affirmation they wererequired to make or take and subscribe, in terms of iArticle 53 of the Constitution, before they enteredupon the duties of their respective, offices, was,also not required' by that Article to be takenbefore any particular person. As far as I have beenable to discover, the only person, who has not beenexpressly required to take or make and subscribethe oath or affirmation set out- in the SeventhSchedule before the "person or body" before whomsuch person was required to take the official oathor affirmation under the Constitution prior to theSixth Amendment, is a person who was, on the dateArticle 157(A) came into operation, a sittingMember of Parliament. In this connection it has tobe noted that, whilst,paragraphs (a) and (b) ofSub-Article (7) of Article 157A speak of "suchperson or body", not one of the Articles set out inSub-Article (7) itself speaks of "a body" beforewhom an. oath or affirmation is to be taken or madeand subscribed. It would seem that the "body" setOut in the aforesaid paragraphs (a) and (b) wasmeant to be the body,..viz. Parliament, referred toin Article 63 and before which body a Member ofParliament had to take or make and subscribe theofficial oath or affirmation. That being so, thenon reference to Article 63 in paragraph (7) of.Article 157A would seem to be an -omission.-, UnderSub-Article 10 of Article 157A Parliament canextend the provisions of Sub-Article (7) to othercategories of persons. Be that as it may, having,regard, however to the background and thecircumstances – of which this Court can well takejudicial notice – in which Parliament came to passthe Sixth Amendment, it is quite resoftable tosuppose that Parliament 'attached the utmostsanctity and solmnity to the oath and affirmationset out in the Seventh Schedule, and did treat it
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as sacrosanct and as important .as the oath oraffirmation that a person had to take or make andsubscribe before such person assumes the duties ofhis office – whether public, judicial-or otherwise.
The resulting position then is that the saidrequirement – that the oath or affirmation embodiedin the -Seventh Schedule be taken or made andsubscribed by the judges of the Supreme Court ( andof the Court of Appeal) before the President of theRepublic – is imperative, and must be strictlycomplied with.
The last date on which -the said oath or affirmationcould have been taken or made and subscribed by theJudges of the Supreme Court.
Paragraph (7) of Article 157A requires – thethird of the three requirements referred to above -an officer or persoh'wh© is holding office on thedate on which the sail! Air title ixsomes into force tomake or take and subscribe the " said oath oraffirmation "within one month of the date on whichthe said Article comes into force". The saidArticle came into operation on 8.8.83. It has . beencontended, before this Court, on behalf of. theAbtorney’-Generad, that the last date on which thejudges of the Supreme Court could have made ortaken and subscribed the said oath or affirmationwas the 8th September 1983, and that the period of. one month expired at mid-night on the night of 8-9th September,1983. That, in the computation of theperiod of one month referred to in.this sub-Article(7) of Article 157A , the first day, namely the 8thAugust, the date on which the . said. Article .157 Acame into operation, has Co be excluded is madeclear by the judgment of (E.H..T.) Gunasekara,J. inthe case of fS.V.Kunasingham vs. G.G. Ponnambalam(30) – a view! which is sound both in principle andin law and should be followed. The word "month"appearing in the said sub-Article (7) should, in
– S3 Visavalfngant ra. tffanage (ftimsingfiB, Jj 2?7 .
.;;:
viev of the provisions of Sec. 2(1) 6f theInterpretation Ordinance (Chap.2), be construed inthe context in which it appears to be a "calendar'oonth". The question which arises now fordetermination in this case is what the last date ofthe said period of one calendar month was ? Was itthe 8th'September ? Or, was it the 9th September'83 ? Having regard to the principles. embodied. inthe- judgments in the cases- of Borne vs.- Hunisamy^(j6) , imperial. Tea Company Ltd, vs. Arioady (31),Highland Tea Company of Ceylon, vs, Jinadasa (7)decided by the Supreme Court, and also the judgmentof the House of Lords in Dodds vs. Walker (8) andhaving also considered the submissions made bylearned Counsel to this Court, I am now of opinionthat the last date was 8.9.83, and that the period©f the calendar month contemplated by Sub-Article(7) of Article 157A, expired at midnight of the 8thSeptember, on the night of the 8th-9th September1983. At this stage I think it fit and proper toplace on record that, when 1 concurred in theopinion expressed in the letter forwarded by theJudges of this Court to the President of theRepublic on 9.9.83 in regard to the last date onwhich such oath or affirmation could be made ortaken and subscribed wa3 the 9th September 1983, I;for one, had been labouring under ■ a misconceptionin regard to the effect of the judgment of theHouse of Lords in the said case of Dodds vs. Walker(supra)-. "It does not seem to have appeared to methen, as it appears to me now".
Although the learned Queen4s Counsel contended,that the said letter addressed by the judges ofthis Court to the President of the Republicconstitutes an exercise of the power vested in theSupreme Court under and by virtue of the provisionsof Article 118(a) of the Constitution, suffice itto say that it was not so intended by me, and thatit cannot and must not be so construed. Article 118spells out, in paragraphs (a) to (g), the various
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jurisdictions conferred upon the Supreme. Court bythe Constitution. Thereafter, the Constitutionproceeds to set out, from – Article 120 to Article131, in detail the manner and form in which thevarious jurisdictions so conferred should beexercised. The exercise of the jurisdiction inrespect of constitutional affairs* vested byArticle 118(a), is provided for and regulated bythe provisions .of Article 120 to 125. Similarly,the succeeding Articles 126 to 130 provide for andregulate the exercise of the other jurisdictionsvested by paragraphs (b) to (g.) respectively ofArticle 118. When the Supreme Court exercises itsjurisdiction under, inter alia, Article 120,121,
123 and 125, the Supreme Court is required, by theprovisions of Articles 134, to notice the Attorney-General who has under and by virtue of the saiidArticle the right to be heard in all suchproceedings in the Supreme Court. The Attorney-General was not heard, nor even noticed, on the 9thSeptember by the judges of this' Court in regard toany of the matters.set out in the said letter,before the said letter was addressed to thePresident pf the Republic. It was pure and simplean expression of opinion of the judges of thisCourt – and also of several judges of the Court ofAppeal, It was not, in law, a determination made bythis Court in the exercise of the jurisdiction:vested in this Court under and by virtue of theprovisions of paragraph (a) of Article 118 pf theConstitution.
. Whether the period of the two months set out in theArticle 126 (5) of the Constitution is mandatory ordirectory.
A consideration of the principles, set out inBindra {supra) and also in . the Corpus JurisSecundum (supra)., relating to the determination ofwhether a direction contained in a Constitution ismardatory or directory, makes it clear that a
SCWsuvalingam vs. Uyanage (Ranasingha. J.): 279
provision in a Constitution, setting out in expressterms the time for the doing of a particular act, |and is silent as ..to it being done at any other timeor in any other way, is mandatory and must befollowed. Furthermore, Bindra (supra) also. at page574, deals with the interpretation of statutesrelating to judicial duties and proceedings, .andstates : that a statute directing judicial 'action,although it may be expressed in positive andimperative terms, will be read as directory onlywhen the subject to which it relates is embracedwithin the sphere of judicial discretion, for tohold that the Legislature has the power to issue acommand as to a matter involving the excercise- ofjudicial discretion would be to permit theLegislature to usurp the judicial function ; that astatutory requirement relating to a matter ofpractice or procedure in the Courts should beinterpreted as mandatory if it confers upon a. litigant a substantial right the violation of whichwill injure him or prejudice his ’case ; that astatutory provision regulating a matter of practiceor procedure will, on the other hand, generally beread as directory when the disregard of it or thefailure to follow it exactly will not materiallyprejudice a litigant's case or deprive him of asubstantial right.
The Fundamental Rights, which are declared andrecognized and set out in detail in Chapter 3 ofthe Constitution, have been, by Article 4(d) of theConstitution, directed to be respected, secured andadvanced by all the organs of government; Provisionis made by Article 126(2) for a person, who
alleges that a fundamental right of his has beeninfringed or is about to be infringed, to present apetition, within one month thereof, to the SupremeCourt for relief or redress. Sub-Article (5) of thesaid Article 126 states that the Supreme Court"shall hear and finally dispose of" any suchpetition for relief "within two months of the
.2&> .
iSrf ktnka Law Reports _- [1983] 1 Sri LR.
, v .Mt-.y'.-u,, -,M,.. ,J.
filing; of stmt j*t£ti<»^*The party aggrieved has,therefore* to?Co«e* before the Supreme Court, withinone month of the -alleged infringement or thethreatened . infringement,^,<and ' .the Supreme Courtitself is directed to . "firing to an end allproceedings in respectolsuch petition within theperiod specified thet'elhvJVizy within a period oftwo months..it–
• .iV V- "•'
– : .;■! •
The jurisdiction, in respect of FundamentalSights, is a jurisdiction vested in the SupremeCourt for the first time by the Constitution • of•1978. It places time limits in regard to the takingof steps by..*an aggrieved party, and to theperformance of •specifled duties by the SupremeCourt. The reason why such limits in regard to timehave been placed is not far to seek. The State isimmediately and considerably concerned inproceedings under■Article 126. The act or acts inrespect of which relief is sought are acts of theofficers of the; State* The relief granted in theultimate analysis', is an award against the State*.It is, therefore, in the best interests of theState that such proceedings be expeditiouslyproceeded with and; determined .once and for all:within a period, which is dearly specified and;knoyn beforehand to every citizen and the "State'Officers. ThSfeSW^t;^pwerful argument against therigid; and ; unalterable date for thepfirformance o£the?actsand duties imposed upon the-%urt is that such step is bound to cause unfairdftd undue hardship to those .seeking relief, fromCburt against the Statf y- and make them pay for thefaults of others over vtu» they hatve no control,and dso penalise them for no fault of their own.That such situations could and do arise does notadmit of any. doubt or argument.. That hardship could.and would be suffered by innocent parties is fairly^cleat and unquestionable. They are so plain and1obvious that ifis reasonable to suppose that theywould also have been evident to those who were
-SC—Visuvalingam vs. Liyanage' IRanasiiighe.'J.)1281
cl•— :;
responsible for the makingjaf such laws, and that*they would not have been unmindful of such direconsequences. Such considerations would havereceived the due attention of the legislators. Yet,the Legislature, in its wisdom, has thought it fitand proper to lay down such directions.The
Constitution has, imposed time limits forthe
performance of various acts by the Supreme Court ;and where the Legislature considered it necessaryto do so, it had mitigated the rigours of suchinflexible directions, as for instance, in Articles122 (l)(c) and 129. True it is that members of thepublic are not parties to such proceedings. Yet, itprovides an insight to the intention of the(Legislature. Hapless victims of the working of suchinflexible rules would often find themselves unableto obtain the relief which they hoped to obtain. Apetitioner, who is unable to obtain the reliefwithin the time limit imposed by a provision oflaw, which also gave him the substantive right toisue for such relief, would find himself deprived ofa substantial right. That then is all the more'reason why such a direction – particularly when itis a direction embodied in a Constitution – shouldbe strictly complied with.
The provision contained in Sub-Article 0) ofArticle 126 of the Constitution – setting out atime limit of two months within which a petition orreference referred to therein should be heard andfinally disposed of – is, therefore^ an imperativeprovision and must be strictly complied with.
– No submissions were made by either Counsel asto the legal effect – e.g. :whether void,
voidable, nullity – of an Order made after theeffluxion of the period of two months where thedirection regarding the two month period ismandatory. The argument proceeded on the footingthat, if the said provision was mandatory, then anOrder delivered after the expiry of the said period
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…would not be valid.
Validity of the proceedings of the 8th and 9thSeptember 1983.
When this matter was taken up for hearing,both Counsel – learned Queen's Counsel appearingfor the Petitioners and the learned DeputySolicitor-General appearing for the Respondents t-agreed that the proceedings held on 8.9.83 werevalid. There was also agreement between them as tothe basis upon which theystatethatsuch
proceedings are valid. They both agreed that thefive judges of this Court, beforewhom the
proceedings were held on 8.9.83, were all de jurejudges. In regard to the proceedings of 9.9.83,once again both Counsel agreed that the proceedingsof that date – which did not last more than half anhour at the most, and throughout'the whole of whichperiod learned Queen *s Counsel f or the Petitionerswas on his feet addressing Court, and also referredto the written submissions, which he had submittedto Court the previous day, and during which periodno order was made by the Court, no evidencerecorded, and no' document produced and marked inevidence – are also valid. They are, however, atvariance in regard to the basis on which" eachaccepts such validity ; for, whilst learned Queen'sCounsel accepts it on the basis that the judgeswere de jure judges on the 9th as well, learnedDeputy Solicitor-General bases his acceptance onthe ground that the judges, though not de jure, 'were nevertheless "de facto judges".
Although they are at variance in regard tothe basis upon which they say so, they are both,nevertheless, agreed that the proceedings inquestion – ie. of the 9th September 1983 – are-valid. That being so, the answer to the questionposed, is thereby supplied. It is not, in my
-SC~ .
Visuvaiingam vs. Liyanage, (Ranasinghe, J.)
283
opinion, necessary to probe further. An examinationof the merits and demerits of the respective basesupon which the answer is so supplied, is really,for the purpose of answering the specific questionreferred to this Court, superfluous. It is quiteunnecessary. The Courts- will ordinarily refuse togo into constitutional questions except when suchdecision is necessary to the final disposition of 'the Case, or where the record discloses othergrounds of decision Bindra (supra) page 882. ;Although the aforesaid statements made’ by bothCounsel, in regard to the validityofthe
proceedings of the two days referred to* would besufficient to answer the first of the two questionsreferred to this Court, yet, in view of the factthat learned Counsel did make submissions atconsiderable length on severa-l issues which wereconsidered relevant for a decision of thisquestion, I shall proceed to consider them as well.
The concept of de facto judges, upon whichthe learned Deputy Solicitor-General founds hisargument, is a doctrine which does not seem to havebeen considered by our Courts earlier. Yet, it is adoctrine which "has a long history and has beenapplied to a wide variety of offices" for severalcenturies in the United States of America and inEngland – United States of America even during thetime of the Civil War, and England from about theeighteenth century. Dealing with this doctrine/. Rubinstein :Jurisdiction and Illegality (1965) :
quotes at page 206 the following summary from’ theCorpus Juris Secundun : "A judge de facto is oneacting with colour of right and who is regarded as,and has the reputation of exercising the judicialfunction he assumes ; he differs, on the one hand,from a mere usurper of an office who undertakes toact without any colour of right ; and on the other,from an officer de jure who is in all respects
1284)'. .iSri Lanka Law Reports■ [1983] 1 Sri LR.
-f:-i
i
legally appointed and qualified to exercise theoffice. In-order that there may be de facto judges,there must be an office which the law recognises,
. and when a court has no legal existence there canbe no judges thereof, either de jure or de facto.There cannot be a de facto judge when there is a dejure judge in the,actual performance of the dutiesof the office". Rubinstein thereafter proceeds todiscuss the several decisions of the Courts inwhich this doctrine has been applied – among whichis the decision of the House of.Lords in. the caseof Scadding vs. lorpnii32). This doctrine is alsodiscussed in Wade : Administrative Law (4 edt) p.287-289, where, at page 289, the learned authorquotes the definition of a 'de facto' officer givenby Lord Ellenborough C.J, in the case of R, v.■Bedford Level Corporation (33) :
"An officer de facto is one who has the.. reputation of being the officer he assumesto be and yet is not a.good officer in pointof law".
This doctrine is also discussed byA.J.flarkose : Judicial Control of AdministrativeAction in India (1956), where, at page 356, thelearned author states that the validity of "a defacto office cannot be questioned in a collateralproceeding and that the application of this rule ismainly to judicial offices. The case of 'BhaskaraPill*! vs. The State of Travancore. (34), whichinvolved a retired puisne judge of the High Courtof Madras, who- was subsequently appointed to be theChief Justice of the High Court of the United Stateof Travancore and Cochin, and the dismissal of acriminal appeal by a Divisional Bench, of which thesaid Chief Justice was a member, is cited as a goodillustration of this doctrine.
It seems to be clear that the essence of this
SCVisuyefingtm vkirytiwo* tfknmihgfii J.I
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doctrine is that the person (who is- to be regardedas a de facto judge) should act with colour ofright, and should be regarded as and should havethe reputation of exercising the functions of thejudicial office he assumes, and that both suchperson and those who regard him as having the rightto hold the office he holds should he unaware ofthe defect which renders such tenure no longervalid. The moment the defect, which renders suchtenure invalid, becomes known – eithef to theholder himself t>r to those who have regarded it. asbeing valid – the de facto . character, wouldforthwithcease. If,asisborneout bythe
authorities set out inthe tektbookreferredto
above, even a defect in tiie original appointment isnot a bar to the operation of this Ate trine* thenthe doctrine should apply with even stronger forcein the case of an initially valid appointment whichis subsequently rendered defective by a superveningfactor. Having regard to the principles underlyingthis doctrine and their application to the relevantfacts andcircumstancesofthiscase -and alsoin
view ofthe opinionIhavealready expressed
regarding both the mandatory nature of the secondof the three requirements set out in Sub*-Artide(7) of Article 157A, and the last date of theperiod of one month referred to in the selfsameSub-Article (7) – it seems to me that thecontention of the learned Deputy Solicitor-General- that, during the period the five Jitfjhges of thisCourt sat on the Bench on 9.9.83 the said judgeshad ceased to be de jure judges and were only defacto judges – is entitled to succeed, and that, atany rate by midnight of the 9th September,1983 – onthe night of the 9th-10th September – the judgeshad ceased to be de facto judges as well.
The preliminary objections put forward on behalfof the Respondents*
Several pmelludnary objections – were -put
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forward, on behalf of th.e Respondents, to thejudges of this Court determining any questionrelating to their status as de jure judges of theSupreme Court from the midnight of 8th September,1983 up to the time the judges accepted the lettersof appointment from the President of the Republicon 15.9.83. The objection, which was stronglyurged, is : That the judges of this Court areprecluded from determining any question relating totheir status as de jure judges of this Court fromthe midnight of the 8th September to the time atwhich fresh letters of appointment were given bythe President on the 15th September, by reason oftheir conduct on the 9th September, and up to andincluding the 15th September, and also by reason ofthe fact that, as they now derive their authorityfrom the letters of appointment granted by thePresident on the 15th September, they cannot seekto exercise their judicial power on some otherbasis.
This particular question really does notarise ,to be considered by me in view of the opinionI have already expressed in regard to the severalissues already dealt with by me. Yet, I would verybriefly indicate my views on this matter too. Theletter addressed by the Judges of this Court tothe President of the Republic on the afternoon ofthe 9th September,1983 – and which is said to havebeen delivered to the President" of the Republicaround 3,30 p.m. – has been referred to at theargument before this Court,. and it speaks foritself. The first step in this "transaction", whichcommenced around – 11 a.m. on 9.9.83 and. endedshortly after 8.30 a.m. on 15.9.83, was, in fact,taken by the judges themselves. It is also a factthat the oath or affirmation, set out in theSeventh Schedule, was not taken or made andsubscribed by the judges before the President ofthe Republic even on the 9th September. It isindeed profitless now to consider why the judges
.sc.
Visuvalingam vs. Liyanage (Ranasinghe, J.l~
287,
could not in fact do so. Indeed, several facts andcircumstances relevant and necessary for a full andeffective determination of it are not before thisCourt, and may indeed not be legally available andadmissible. Thereafter, on the 15th September, 1983the judges of this Court took or made andsubscribed both the Fourth Schedule oath oraffirmation and the Seventh Schedule oath oraffirmation before the President of the Republic,and the President of the Republic 'issued to each ofthe judges a fresh Act of Appointment, in terms ofArticle 107 of the Constitution, as a Judge of theSupreme Court with effect from 15.9.83. Thisappointment was accepted by me, without demur. Noindication was given by me to the President of theRepublic that I considered myself still a judge ofthe Supreme Court under and by virtue of the•earlier Act of Appointment, which had earlier beenissued by him, and that that Warrant was stillvalid and effective. If that were my position, itbehoved me at least to acquaint the President ofthe Republic, who was taking steps to appoint meafresh with effect from that day, of my position.Furthermore, if that were my position, then myconduct amounted to no more than this : I, beingaware that my earlier appointment was still valid,stood by silently, whilst the President of theRepublic, purporting to act under the provision ofthe Constitution under which the President of" theRepublic could appoint judges to the Supreme Court,took steps to appoint me afresh with effect fromthat date, and then, without any form of demur oreven any indication of my position, I proceeded toaccept such appointment. That being the factualposition – quite apart from the legal position – Ientertain grave doubts about the propriety ofthereafter proceeding to maintain that I deriveauthority to function as a Judge of this Court notfrom the appointment made on the 15th September1983. but from the earlier appointment made on 7thSeptember 1978.
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r—;——I
Learned Deputy .Solicitor-General relies,mainly on Estoppel to support his contention on.this point, iAt paragraph 1515 •Halsbury(4 edit}
refers to the non availability of a plea ofestoppel as against a Statute. Having regard to thediscussion contained in that paragraph, I. do notthink that the matter before us is covered by thatprinciple. In regard to the principles of Estoppelit has to be noted that, although Estoppel hasoften been described as al rule of evidence, themodern approach has been to view the whole conceptas a substantive rule' of law, aiid as a principle ofjustice and equity – Halsbury (4 edt) Vol. 16paragraph 1501, Page 1008» note 4. At paragraph1507, Halsbury-(supra), discusses the species ofEstoppel known as "approbation- and reprobation";and sets out the two propositions expressed by thisprinciple viz : the person having a choice betweentwo courses of conduct, is to be treated as havingmade an election from which he cannot resile, andthat he will not be regarded, in general at anyrate, as having so elected unless he has taken abenefit under or arising out of the course ofconduct which he has first pursued and with whichhis subsequent conduct is inconsistent.
Halsbury (supra) also discusses, under thechapter on Equity, at paragraph^ 1473, the term"acquiescence", and states that this term isproperly used "where a person having a right andseeing another person about to commit or in thecourse of committing an act infringing upon thatright, stands by in such a manner .as really toinduce the person committing the act, and who mightotherwise have abstained from it, to believe thathe assents to its being committed; a person sostanding by cannot, afterwards be heard to complainof the act. In that sense the doctrine ofacquiescence may be defined as quiescence undersuch circumstances that assent can be reasonably
_SC.Visuvalingam vs. Liyahage. (Ranasinghe, J.)-..289.
inferred from itf and is no more than an instance.,of the law of estoppel by words or conduct, theprinciple of estoppel by representation applyingboth at law and in equity, although its applicationto acquiescence is equitable". Spencer Bower1 andTurner on: Estoppel by J Representation (2 edt) indiscussing the principles relating to the conceptof "acquiescence", at page 263, quotes thefollowing passage from the judgment of Thesiger.L.J.in the case of De Bussche vs, Alt (35) :
"If a person having a right and seeinganother persoh about to commit, or inthe course of committing an act infringingupon that right, stands by in such a manneras really to induce the person committing theact, and .who might otherwise have abstainedfrom it, to believe that he assents to itbeing committed he cannot afterwards be heardto complain of the act. This, as LordCottenham said in the case already cited, isthe proper sense of the term 'acquiescence'and in that sense it may be defined asquiescence under such circumstance as thatassent may be reasonably inferred from it,and is no more than an instance of the law ofestoppel by words or conduct". "
The Act of Appointment granted by thePresident of the Republic, and accepted by me, on'15.9.83 does affect my rights under the originalAct . of Appointment granted to me on the 7thSeptember 1978 ; for, it expressly states, that itis an appointment with effect from 15.9.83.
The principle urged by the learned DeputySolicitor-General does not affect the Supreme Courtas such, it only affects the judges, who constitutethis Bench, individually.
Having regard to the facts and circumstances
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relevant to this matter, and to the principlesrelating to the legal concepts of ’’approbation andreprobation", and "acquiescence", it seems to methat, had it been necessary for me to rule on thepreliminary objection raised on behalf of theRespondents by the learned Deputy Solicitor-General~ that I cannot be heard to say that I amexercising my authority as a Judge of this Court,from and after 15.9=83, upon an appointment otheTthan the appointment granted to me by the Presidentof the Republic on 15.9.33 – I would have beeninclined to hold that it is entitled to succeed.
Re removal of judges as set out in~ Article -107 (2)and (3) of the Vonstitution.
It was submitted that, even if a Judge of theSupreme Court "shall cease to hold office", theprocedure set out in Article 107 (2) and (3) had to.be followed to remove such judge, and that, if suchprocedure is not followed, such judge stillremained.a judge. Article 107 of the Constitutionis a provision which guarantees the independence ofthe judiciary by assuring security of tenure, andlays, down that a judge is removable only "on theground of proved misbehaviour or incapacity", andthat too only by following the procedure so- laiddown. This Article, therefore, provides for the"removal" of a judge. This is the only way in whicha judge, who is in office, could be removed. Uponbeing so removed the judge would cease to holdoffice. This was the position until the SixthAmendment brought in paragraph (7) of Article157(A), which by the operation of the rule mutatismutandis provides for a situation in which a judgewould "cease to hold office". Such cessation is byoperation 'of law. It does not call..for theintervention of another agency. The .law itselfstates that, the moment a certain situation arises,it would result in a loss – of-.-office. -It is anautomatic result brought about by operation of law.
SCVisuvalingam vs. Liyanagei (Abdul Cader. J.)
.291,
The result is a total deprivation of all theauthority which is attached to such office. It isnot merely a case of ceasing to discharge thefunctions of the office. Thus the Sixth Amendmentprovided an additional ground upon which a judgewould cease to hold office – in addition to thecessation brought, about by a removal from office interms of Article 107. A judge who, by operation ofthe Sixth Amendment, has, in law, ceased to holdoffice, does not have to be ’'removed” by theprocedure laid down in Article 107. He has"removed" himself ; and no further "removal” isrequired. These two Articles — 107 and 157A – arenot inconsistent with one another. There is noconflict as between them. They can both standtogether, and work and be worked harmoniously.
Answers to the two questions referred to ^this Court,.
1. The proceedings of both 8th and 9th
September,1983 are valid.
The provisions of Article 17.6(5) of theConstitution – relating to the period oftwo months – being imperative, an Orderdelivered after the expiration of the saidperiod will, in law, be invalid.
ABDU LQ8®EB,.
Though the Judges of this Court had takentheir oaths under the Sixth Amendment beforethemselves in August, they wrote to the Presidentintimating that fact, but, nevertheless, offering-to take the oath before him (the President) on the9th, stating that that was the last date within .which this oath can be taken. In this letter, therewas no suggestion whatsoever that the requirementto take the oath before the President wasdirectory.
.292-Sri Lanka Law Reports'[1983] iSri LR.
f… ,■"—« ■.
The Deputy Solicitor-General told us at the_heating that the Attorney-General had advised thePresident that since the oath had not been takenbefore the President on or before the 7th, theJudges had ceased to hold office in terms ofArticle 165 (1) of the Constitution.
It was id these circumstances .that thePresident decided to re-appoint the same Judges onfresh warrants of 15.9.83 and administered the twooaths, one under Article 107 (A) as on assumptionof office and the other in terms of the SixthAmendment. Clearly this act was intended to be afresh appointment on the basis that we had ceasedto hold office for failure to take the oath interms of the Sixth Amendment before the President,though we had taken this oath before ourselves.
When the Chief Justice referred the twomatters in issue to the Full Bench, in respect ofthe question whether the oath before the Presidentis mandatory or directory, the task of deciding thebasis of our own status came up for consideration.
It is an unpleasant task to sit as a Judge inmy own cause and to discuss the proprieties of myown conduct.
The Deputy Solicitor-General raised twopreliminary objections:
•*««
The Court is precluded from discussingthe conduct of the President (Article 35);and
The Judges cannot look behind their freshappointments and decide whether they holdappointments in any capacity other than theirfresh appointments. I
I wish I could have accepted these
-SCVisuvalingam vs. Liyanage .(Abdul Cader, J.)293
objections, but the law. appears to be otherwise andit has become necessary to discharge my duty,hoveyer unpleasant it be. In doing so, I haveattempted to consider the matters in issue with theutmost objectivity "without fear or favour,affection-or. ill-will."
As regards the first objection, I agree withSharvananda, J. To hold otherwise will negate thefundamental concept of the sovereignty of thepeople.
As regards the second objection, when thequestion as regards the mandatory nature of theoath comes up, whatever time it be, as it is theSupreme Court that alone is empowered to decidethis issue, it is the Judges of this Court who willbe called upon to decide it. While the DeputySolicitor-General conceded that a bench of newJudges can hear this question, he maintained thatwe cannot hear it. Now that the question has beenraised at this present moment, we are the onlyJudges available to decide this dispute. Therefore,the capacity in which the Judges hold office givesway to the duty of the Court to decide the issue.It is the Court that decides it, though it consistsof Judges who hold office on the appointments ofthe 15th September.
The principal judgments of the Chief Justiceand SharvanandanJ. deal with the nature of the oathextensively. It will be sufficient if I add thefollowing:
(Craies on Statute Law at pp.266 and 267) •
• •"Where a statute does not consist merely ofone enactment, but contains a number ofdifferent provisions regulating the manner in' which something is to be done, it oftenhappens that some of these provisions are to
2HSri Lanka Law Reports[19S3J1 Sri LR.
be treated as being directory only, while,others are to be considered absolute andessential; that is to say, some of the,provisions may be disregarded withoutrendering invalid the thing to be done, butothers not. For "there is a knowndistinction", as Lord Mansfield said in R. v..Loxdale "between circumstances which are ofthe essence of a thing required to be done byan Act of Parliament and clauses merelydirectory." In Bearse v. Mortice , Taunton J.said that he understood "the distinction tobe, that a clause is directory where theprovisions contain a mere matter of directionand nothing more, but not so where they arefollowed by such words as, ’that anythingdone contrary to these provisions shall benull and void tc- all intents ‘."
He states as follows at pp. 532 and 534:
Where there is an enactment which may entailpenal consequence,you ought not to doviolence to the language in order to bringpeople within it, but ought rather to takerare that no one is brought within it who isnot brought within it by express language."
"If the words have a natural meaning, that istheir meaning and it is not to be extended byany reasoning based on the substance of thetransaction. If the language of the statuteis equivocal and there are two reasonablemeaningsof that language, the
interpretation which avoids the penalty isto be adopted."
Taking all these into consideration, I agreewith the Chief Justice that the oath to be takenbefore the President is directory and notmandatory.
i- . – .
SC-. VitiMMlirtgam vs. Uyanage (Rodrigo, J.)295
| ■ ■1
I agree with the order made by His Lordshipthe Chief Justice that the two months provision inArticle 126 (5) is directory.
As I have said earlier, the date 9th ve gavethe President was wrong. This was doneinadvertently as there was absolutely no time torefer to the various authorities. The date ofcertification being the 8th August, it wasconsidered that a calendar month from 9th August(excluding the 8th August which the DeputySolicitor- General conceded . was correctcomputation) would be 9th September. I now knowthat the correct last date will Be 8th September.However, this has now no bearing on the question ofthe nature of the- oath.
In the.letter of the 9th. there was no
Suggestion whatsoever that the oath was anythingother than mandatory.
A quotation from Hidaytullah,C.is apt:
"This Court does, not claim to be always rightalthough it does not spare.every effort to beright according to the beat of the ability,knowledge and judgment of the judges. They donot think themselves in possession of alltruth or hold that wherever others differ fromthem, it is so far error. Ho one is moreconscious of his limitations and fallibility.,than a judge but because of his training andthe assistance he gets from learned counsel heis apt to avoid mistakes move than others…"
RODRIGO, J..
The matters that have arisen for decision inthese proceedings relate to the jurisdictional"capacity of this Court to continue the b,earln8 ofthe application before us which alleges a; breach ofcertain alleged fundamental rights of . the, peti-
296..
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tioRers sn its merits.. The. application conmencedits hearing on 8th Sept. 1983 on a preliminarymatter of law and adjourned at the end ef the dayto be resumed on the following day, namely, 9thSeptember, without any premonition of the "Cassan-dra Crossing" to which it was to be divertedby circumstances completely extraneous to theapplication itself.
A copy of the Sixth Amendment to theConstitution that had reached the Judges' Chamberson 8th September, was discovered, by the Bench after20 minutes of hearing of the application on 9thSeptember, to require the Judges to take theprescribed Seventh Schedule oath . before HisExcellency. They had taken, every one-of them, thisoath much earlier before fellow Judges, beingunaware of this particular requirement. The Benchthen adjourned to resume its sittings at 1 p.m. onthe same day to enable them (and the other Judges ) .to take the oath before the President in themeantime. This was, however, not to be for reasonsappearing later on. The Bench resumed its sittingsonly on 19 Sept.when it became evident that thedeadline of 22 Sept.could not be met which was thelast date of the two month period stipulated in theConstitution for the final disposalofthis
application. See Art 126(5). So, Counsel for thepetitioners;, not surprisingly, contended that thesaid stipulation is only directory and accordinglythe Court had jurisdiction to continue to hear theapplication and deliver its order after the expiryof the two months' period. Counselfor the
respondents,' the Deputy Solicitor-General (D.S.G.)would not agree. In the upshot, the point becamecrucial. A subsidiary point questioning thevalidity of the proceedings of 20 minutes on. 9thSeptember was also raised. Both sides agreed thatthe short proceedings on this day were valid buteach for a different reason and the reason it wasthat became controversial. In the result, My Lord
—SIC
.VisavaUrigam vs. Uyanage (Rodrigo, J.)
.. I297
the Chief Justice, referred, both these points andtwo others for consideration by- a 9-Judge Bench.Hence these proceedings.
The 9-Judge Bench sat on 22 Sept, (which wasthe deadline specified.as stated earlier) to hearthe four preliminary matters of law referred to itfor decision .and not to hear the petition -on itsmerits. If the matter of the 2 month period isdecided against the petitioners it – will finallydispose of this application without a hearing onits merits. Besides, the other subsidiary mattersraised will not need to be decided for disposing ofthe application.
A preliminary objection was taken by theDeputy Solicitor-General to the Court hearingsubmissions from the petitioners' Counsel . insupport of the reasons. advanced by him for hissubmission that the proceedings of 9th Septemberwere valid. To understand this contention it isnecessary to elaborate what was foreshadowedearlier as to the nature of the interruption of the^proceedings of 9th September. The 5-Judge Benchadjourned its sitting in the morning of 9thSeptember intending to resume its sitting at 1 p.m.
I have referred to this earlier; the appointmentwith the President requested for oath-taking before. him on 9th September did not materialize, His.'Excellency being advisedby the Attorney-
General (A/Gen), . as it transpired subsequently,that the Judges were tardy by two days,. the. lastlawful pointjof time being the -midnight of .7th-" September. The President by a Separate warrant-dated 15th September restored the Judges or -so itseems to their- office in the morning of 15thSeptember at 9 a.m.
Now this simple act of restoring the Judgesto their office is-looked at in opposing ways ' by-the two Counsel. One would think that it did not
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patter how each looked at-it as long as both wouldagree that the proceeding* of 9th Septeaber werevalid. For a natter of that the proceedings of both8th and 9th September might well have been writtenoff, it being remembered that the hearing startedinitially only on 8th September, one day before the9th September and the hearing itself was only intosubmissions of a preliminary nature. The inquirywhether as a continuation or de novo could not becompleted in the circumstances within the period ofthe two months prescribed. Any way, each wouldstick to his ground and each for a different reasonand the reason now becomes more important than thevalidity of the proceedings itself which it hadbeen meant to support. The reason advanced bypetitioners' Counsel which I will set out presentlywas. observed by His Lordship the Chief Justice – tostir up a hornet's nest and the Deputy Solicitor-General would rather avoid, if he could, that kindof controversy.
The hornet's nest is this. The SixthAmendment it is argued, states with reference toJudges of the Supreme Court ( and of the Court ofAppeal ) that if they failed to take the SeventhSchedule oath or make the affirmation within acalendar month of the date cm which the new Article157(A) cooes into force before the President theyshall cease to hold office. See Art. 157(A)(7) and.Art.165 of the Constitution. The "month" mentionedhere is understood as a'"calendar month. See theInterpretation Ordinance s.2(p). Assuming that theoath taken before the President on 15th Septemberis not an oath taken within ei calendar. monthspecified in the Article, petitioners' Counselcontends that notwithstanding such non-compliancethe Judges never ceased to hold office as they hadadmittedly taken the, oath itself well within timeand the requirement that it should be taken beforethe President, being only directory, no forfeiture
_£C Viauvalingam vs. Uyanaga (Rodrigo, J.) 299,
of office resulted therefrom. To support anddevelop this contention* it was rightly feared bythe Deputy Solicitor-General, his opponent – wouldhave to make long and arduous excursions' intofields of lav covering a wide range and resurrectfacts which he would rather let lie in their-graves. Hence his preliminary objection to stirringup a hornet's nest. The Deputy Solicitor-General, would therefore object to any argument thatthe Judges did not cease to hold office on 9thSeptember and support his objection on the prin-cipal ground (he had three grounds of objection)that the Judges were new appointees deriving theirnew appointments from the warrants dated 15September and,' they having accepted their newwarrants without so much as even a murmur, are now.precluded from reprobating it, asserting or ratheradopting a submission which so asserts, that theycontinued in office without a break* throughout.
It must be recalled that the whole body ofJudges of the two Courts communicated in writing tothe President that they .were within time whenseeking to take oath before him on 9th September.-The President on receipt of this conraunicationacted constitutionally by putting it before theCabinet. The Cabinet left the matter in the 'handsof the President. Thus the President had theauthority of the Cabinet to do what he eventuallydid. He was now faced with the opinion of the .twoCourts expressed in the communication addressed- tohim.
The President may have accepted this opinionin issuing fresh warrants to the. Judges, toeveryone of them, on 15th September. True they weredated as of that date. That may be as a true recordof the event, and may not have-been meant tor breakthe continuity in office of the Judges. Be that asit may. We now know that 9th September was too lateby one day, the calendar month reckoned from 8th
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August ending as it does in lav on 8th Septembermidnight. See Kueasingham v. Pormambalam(30), Dodds.Y> Walker (8) .We are however not unanimous in thisview. Therefore the question whether it vatsmandatory to take the oath before the Presidentbecomes crucial on this aspect of the case. It wasthe easiest thing for the Draftsman to have addedjust another line at the end of each paragraph (a)and (b) of s.7 of Art.157(A) of the Sixth Amendmentto say that "where such oath or affirmation is nottaken, such officer shall cease to hold office."Instead, a "mutatis mutandis" provision isintroduced-at the end of the two paragraphs makingthe limits of the effect to be given to themuncertain and controversial. See Touriel v.Internal Affairs Southern Rhodesia (27). What isapplied to the. two paragraphs is Art.165. ThisArticle is a transitional provision in theConstitution and when once it's transit was over itwas meant to be ineffectual and dead. It at no timeapplied to Judges of the Superior Courts. That thisis so becomes abundantly clear from Art.165(2) asit is the Minister of Public Administration thatcan exercise his discretion in excusing non-compliance and the Minister is not the properauthority to exercise his discretion in respect ofJudges of Superior Courts. I am of the view howeverthat the proviso to the two paragraphs (a) and (b)pf Art. 157(A) makes a difference in so far as itseeks to apply Art. 165 to Judges of the SupremeCourt and the Court of Appeal. "Mutatis mutandisnmeans "with necessary alterations in point. ofdetail"- See Wharton's Law Lexicon. It may be stillmore different if what is made applicable is Art.157(A)(7) to Art.165, assuming Art .165 was apermanent provision. When a transitional provisionhas served its. purpose it ceases to exist. It is nolonger a living provision of law in theConstitution. In effect it is – like a repealedstatute or law. But an enactment cannot seek torevive a provision of a repealed law mutatis
– SCWsavalingam vs. Liyanage (Rodrigo, J.)•. 301
mutandis'or otherwise to one of its provisions.However, neither side rested his submission on..thatbasis and, I will,, therefore, . leave it .out- ofaccount. So I-will- -look; at -this problem in. the. wayit muz put: Art.165(1) speaks of a judicial officerwho fails to,
(a) take the oath■■(b) within atime and,
losing ofSice.
There is- no -reference to -the person befwPtewhom it is te be taken in this Article. The openingwords are " every'. ………judicial officer….. .as
is required by the Constitution to take the -oath".It is significant. that it does not say . " to . takethe oath as required by the Constitution". BatArt. 165, is made applicable to such a personholding office on the date e£ coming into force ofthis Article (157(A)) – , who must make the oath inthe form, set out in the Seventh Schedule before
such personas is referred to in that
Article.'
The person to whom Art.165 is- to be appliedis given namely, a person who.has failed to takethe oath as required by the paragraph 7(a)(b) ofArt.157(A). What then is the detail in Art.165 thathas to'be applied to this person who has failed totake the oath as Required, in the-paragraph? What isthe requirement in the paragraph? That'is that- heshould take the oath ( where he is a Judge of theSupreme Court or the Court of Appeal – Art.107)before the President. Given then that the personhas not met the requirement .the only detail is theond relating .to the penalty prescribed underArt.165. That penalty is forfeiture of effice.
The "test to'be applied for the purpose of ascer-.taining in any particular case what are "mutanda"is "necessity" or "fitnesd". I think thaanswer to
1 302._. Sri Lanka Law Reporta[1983] 1 Sri LR.
this question must be that "necessity" is the testand that considerations of "fitness”, are notsufficient to justify a change…unless, they are socogent as to establish "necessity"* See the case ofTotiriel, referred to.It is said again that "it is anelementary rule 6f construction of statutes thatthe judicature in their interpretation have to.discover and act upon the mens or sententia legis.Normally'Courts do not look beyond the literslegis. See Hotilal v. Commissioner of Income Tax
. When we examine the sententia . legis of theproviso and indeed of the Sixth Amendment, it doesseen so obvious that the legislature intended topenalise persons who did not take the SeventhSchedule oath in the time prescribed and this whencoupled with the proviso containing the mutatismutandis clause brings in the.liters legis elementunavoidably making it unnecessary to do anythingmore than to give effect to what the words plainlysay. In the result I reached the view that theJudges ceased to hold office on 9th September.
. In view of ’the opinion I have already reachedas stated, it is a futile exercise, though arguedat length, to consider the position arising fromthe D.S..G,'s submission that the oaths alreadytaken by Judges before fellow Judge? who areexofficio J.Ps are also not valid since J.Ps(Justices ' of Peace) do not administerconstitutional oaths or that arising from thesubmission that the Judges are" estopped fromconsidering their status on 9th September by theirconduct in accepting warrants of appointment dated15th September.
There is still to be considered the twomonths requirement specified in Art^. I26v Itr i*' saidon behalf Of the petitioners .that this is only i adirectory provision and that it must necessarily be'so firstly because no sanction is prescribed fornon-compliance and secondly the legislature could.
sc
Visuvalingam vs. Uyanage (Rodrigo, J.)
. 303
not have been so unreasonable as to visit apetitioner with the extreme penalty of no-relief ifrelief is not obtained within the two months for nofault of his where his application has not beendisposed of within the said period owing to theconduct of the Court over which he has no controland, as in this instance, over which even the Courthad no control. What has happened on this occasionis said to be a classic illustration of the needfor flexibility in the application of this pro-vision.
Art. 126 appears in a Chapter (Chap.XVI) thatcontains Article 121, 122, 125 and 129 each ofwhich stipulates time limits for the thingspecified therein to be done. Art. 121 requires thePresident or a citizen to invoke the jurisdictionof the Supreme Court, if he is so minded, within'oneweek of a Bill placed on the Order Paper of . theParliament and the Supreme Court is required tomake and communicate its determination on suchreference within 3 weeks of the making of thereference. Art. 122 requires the Supreme Court tomake and communicate its decision within 24 hoursor such longer period not exceeding three days asthe President may specify on an urgent Billreferred to it for determination. Art. 125 providesfor determination by the Supreme Court of anyquestion of a constitutional nature referred to itby any judicial tribunal within two months of thedate of reference. Art. 129(1) states that theSupreme Court shall give its opinion on any matterof public importance, be it a matter of law orfact, referred to it by the President for itsopinion within the time specified by him in suchreference. In all these cases the Attorney-Generalis required to be noticed and heard; what is more,any party to any proceeding under any of thesesections is also given the right to be heard eitherin person or by an Attorney-at-Law. What is stillmore noticeable is that any other person who is
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neither a party nor the Attorney-General also mayhave the right in the discretion of the Court to beheard in person or by his legal representative. Ifthe time limits specified in the said sections aremandatory and are meant to be strictly obeyed thenso are the requirements that the various personsand parties referred to must also be heard.
These are weighty considerations. As againstthis, I cannot ignore the feel, as it were, of theprovisions in the Chapter on Fundamental Rightsthat the legislature was so obsessed with a passionto protect and safeguard the fundamental rights ofthe citizens of this country, that it was basic totheir thinking that relief delayed and not givenwithin the time stipulated is no relief at all tothe extent-of making-it an article' of faith thatthe Courts will find-.a way of giving relief withinthe specified- time. This is the first time that theCourt was not able to meet the deadline throughfortuitous circumstances and a philosophical way oflooking at it is that one or two may fall by thewayside but the procession will continue.
I am accordingly of the view that the timelimit of two months Specified in Art. 126 ismandatory and we have no jurisdiction to entertainthis application any longer.
Preliminary objections overruled.