009-SLLR-SLLR-1994-V1-WERAGAMA-v.-EKSATH-LANKA-WATHU-KAMKARU-SAMITHIYA-AND-OTHERS.pdf
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Weragama v. Eksath Lanka Wathu Kamkanj Samithiya and Others 293
WERAGAMA
v.
EKSATH LANKA WATHU KAMKARU SAMITHIYA AND OTHERS
SUPREME COURT.
FERNANDO. J.
DHEERARATNE, J. ANDWADUGODAPITIYA, J.
S.C. APPEAL NO. 45/94H.C. (WP) NO. 21/92OCTOBER 28TH, 1994.
Certiorari and Mandamus – High Court of a Province – Jurisdiction to issue writsof Certiorari and Mandamus against the President of a Labour Tribunal -Constitution Article 154 P(3) and (4) – High Court of the Provinces (SpecialProvisions) Act No. 19 of 1990, s. 3.
Article 154P introduced by the Thirteenth Amendment did not confer on HighCourts writ jurisdiction in respect of Presidents of Labour Tribunals.
Nor did Parliament by Law confer such a jurisdiction on High Courts under and interms of Article 154 P(3) (C).
If a law or a statute is covered by a matter in the (exclusive) Provincial CouncilList, but not otherwise, the exercise of powers thereunder are subject to the writjurisdiction of the High Court.
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Apart from an error in punctuation (semicolon to be ignored or replaced by acomma) the meaning of Article 154P(4) is perfectly clear; and there Is noambiguity, absurdity or injustice justifying modification of language. In theThirteenth Amendment there was no Intention to devolve power, There wasnothing more than a re-arrangement of the jurisdictions of the judiciary.
The Jurisdiction of the Court of Appeal is not an entrenched Jurisdiction becauseArticle 138 provides that it is subject to the provisions 'of any law', 'Hence it wasalways constitutionally permissible for that jurisdiction to be reduced ortransferred by ordinary law. (of course, to a body entitled to exercise judicialpower). It was the absence of such a provision that made Parliament unable toreduce or affect the jurisdiction of the Court of Appeal under Article 140; becauseits jurisdiction under Article 140 and 141 are entrenched: but for the provisoinserted by the First Amendment, its jurisdiction under Article 140 cannot betransferred even to the Supreme Court.
Article 154P(3) did not authorise Parliament, by ordinary law, to confer the writjurisdiction of the Court of Appeal under Article 140 (either exclusively orconcurrently) on the High Courts.
Section 3 of the High Court of the Provinces (Special Provisions) Act No. 19 of1990, conferred on the High Courts, appellate and revisionary jurisdiction inrespect of Labour Tribunals: the phrase 'appellate and revisionary jurisdiction"has been used in Article 154P(3) in contradistinction to the writ jurisdiction andhence the same phrase in Section 3 cannot be interpreted to include the writjurisdiction.
Cases referred to:
Swastika Textile Industries Ltd. v. Dayaratne, SC No. 7/92, SC Minutes of27.10.92.
in re the Thirteenth Amendment. [1987] 2 Sri LR 312.
In re the Agrarian Services (Amendment) Bill SC Special Determinations Nos.2 & 4 ofl 991 – Decided on 7.02.1991.
APPEAL from order of High Court (W P).
L C. Seneviratne PC. with Lakshman Perera and Shayamal Jayasinghe forrespondent-respondent-appellant.
A. A. de Silva with Nimal Punchihewa lor applicant-petitioner-respondent.
Curadvvult.
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Weragama v. Eksath Lanka Wathu Kamkaru Samithiya
and Others (Fernando, J.)
295
November, 04th, 1994.
FERNANDO, J.
In this appeal we have to decide whether the High Court of aProvince has jurisdiction to issue writs of Certiorari and Mandamusagainst the President of a Labour Tribunal.
The President of the Labour Tribunal Avissawella refused hisapplication to order the production for inspection of a document fromwhich a witness giving evidence was apparently refreshing hismemory, and then granted the Applicant-Petitioner-Respondent (‘theRespondent") a postponement subject to payment of costs. Beingdissatisfied with those two orders, the Respondent applied to the HighCourt of the Western Province (sitting at Avissawella) for Certiorari andMandamus. A preliminary objection by the Respondent-Respondent-Appellant (“the Appellant") that the High Court had no writ jurisdictionin respect of a President of a Labour Tribunal was overruled by theHigh Court, relying on Swastika Textile Industries Ltd. v. Dayaratne ,1which is contrary to this view of the writ jurisdiction, as I will show laterin this judgment – and an article written by Justice Sarath Silva, ofwhich neither the reference nor a copy is in the brief. The Appellantappealed to this Court with special leave.
Prior to the Thirteenth Amendment to the Constitution, thejurisdictions of the Court of Appeal included exclusive appellate andrevisionary jurisdiction (under Article 138), and exclusive “writjurisdiction" (namely, to grant habeas corpus under Article 141, andthe other prerogative writs under Article 140). These jurisdictionsapplied inter alia, to High Courts, District Courts, Magistrate’s Courts,Primary Courts and Labour Tribunals.
The relevant provisions introduced by the Thirteenth Amendmentare as follows:
“154P (3) Every… High Court (of a Province) shall –
exercise according to law, the original criminaljurisdiction of the High Court of Sri Lanka in respect of offencescommitted within the Province;
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notwithstanding anything in Article 138 and subject toany law, exercise appellate and revisionary jurisdiction inrespect of convictions, sentences and orders entered orimposed by Magistrate's Courts and Primary Courts within theProvince;
exercise such other jurisdiction and powers asParliament may, by law, provide.
154P (4) Every such High Court shall have jurisdiction toissue, according to law,-
orders in the nature of habeas corpus in respect ofpersons illegally detained within the Province; and
orders in the nature of writs of certiorari,prohibition,procedendo, mandamus, and quo warranto, against anyperson exercising within the Province, any power under-
any law; or
any statutes made by a Provincial Council established forthat Province,
in respect of any matter set out in the Provincial Council List.”
These amendments affected the appellate, revisionary and writjurisdiction of the Court of Appeal only in two respects. Firstly, Article154P (3) (b) conferred appellate and revisionary jurisdiction (but notwrit jurisdiction) in respect of Magistrate’s Courts and Primary Courts(but not Labour Tribunals, or other courts and tribunals); this was"notwithstanding anything in Article 138” (and that Article was in anyevent “subject to the provisions of the Constitution"), and so eitherthe jurisdiction of the Court of Appeal was pro tanto transferred to theHigh Courts or the Court of Appeal and the High Courts hadconcurrent jurisdiction. Secondly, Article 154P (4) conferred writjurisdiction over any person exercising, within the Province, anypower under any law or statute specified therein; this was not statedto be “exclusive", or “notwithstanding anything in Articles 140 and141°, and hence the High Courts had concurrent jurisdiction with the
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Weragama v. Eksath Lanka Wathu Kamkarv Samilhtya
and Others (Fernando, J.)
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Court of Appeal. The Respondent says that “any law" included theenactments under which Presidents of Labour Tribunals exercisedtheir powers, and that therefore High Courts had writ jurisdiction overLabour Tribunals. Apart from that, the Respondent has an alternativesubmission: he refers to Article 154P (3) (c) – which empoweredParliament, by ordinary law, to confer other jurisdictions on HighCourts – and says that Parliament did by law confer on High Courtswrit jurisdiction in respect of Presidents of Labour Tribunals; this, heclaims, was done by section 3 and/or section 7 of the High Court ofthe Provinces (Special Provisions) Act, No. 19 of 1990, and/orsections 31D (4) (b) and 31DDD of the Industrial Disputes Act (Cap.131) as amended by Act No. 32 of 1990.
Thus the appeal involves two questions:
Did Article 154P, introduced by the Thirteenth Amendment, conferon High Courts writ jurisdiction in respect of Presidents of LabourTribunals?
Alternatively, did Parliament by law confer such a jurisdiction onHigh Courts, under and in terms of Article 154P (3) (c)?
1. It is accepted that the Industrial Disputes Act and any otherenactments which may confer powers on Labour Tribunals are notwithin the scope of any item or matter in the Provincial Council List;and also that it is only the Reserved List which contains any item ormatter which would cover those enactments and Labour Tribunals -“Justice in so far as it relates to the judiciary and the courts structure[including] … jurisdiction and powers of all courts …". Accordingly,those enactments would not fall within “any law … in respect of anymatter set out in the Provincial Council List", and High Courts wouldnot have writ jurisdiction over Labour Tribunals.
However, learned Counsel for the Respondent contends that thefinal clause of Article 154P (4) does not qualify "any law", but onlysub-paragraph (ii). The semicolon appearing after “any law” is anobvious error, because the preceding word “under” must govern bothsub-paragraphs (i) and (ii). if sub-paragraph (ii) is to make anysense. Learned Counsel says it should be a full stop, but even then
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sub-paragraph (ii) would be meaningless. Accordingly, that semi-colon must be ignored, or a comma substituted. In that event the finalclause qualifies both sub-paragraphs which then make perfectsense: if a law or a statute is covered by a matter in the (exclusive)Provincial Council List, but not otherwise, the exercise of powersthereunder are subject to the writ jurisdiction of the High Court.Despite this, learned Counsel invites us to interpret this provision"liberally", and to hold that the final clause qualified only “anystatutes’’. He advanced two reasons for doing so. He referred to thewell-known principles of interpretation justifying modification oflanguage in cases of ambiguity, absurdity, injustice, patent error, andthe like; and he also urged that the intention of the ThirteenthAmendment was to “devolve" judicial power to the Provinces, whichhe said had been recognised in the Determination of this Court In rethe Thirteenth Amendment<2>. On that basis he urged that this Courtshould adopt a broad interpretation so as to allow writ jurisdiction tothe High Courts in respect of powers exercised under any lawwhatsoever.
Apart from the error in punctuation, the meaning of Article 154P (4)is perfectly clear; and there is no ambiguity, absurdity, or injusticejustifying modification of language.
As to the intention of Parliament in adopting the ThirteenthAmendment, this Court cannot attribute an intention except thatwhich appears from the words used by Parliament. I find nothingsuggesting a general intention of devolving power to the Provinces;insofar as the three Lists are concerned, only what was specificallymentioned was devolved, and ‘all subjects and functions notspecified in List I or List II" were reserved – thus contradicting anysuch general intention. As for the Determination of this Courtregarding the Thirteenth Amendment, the majority held that it did noteffect any change in the structure of the Courts or the judicial powerof the People; that vesting additional jurisdiction in the High Courtsonly brought justice nearer home to the citizen, reducing delay andexpense; and that the Provincial Council had no control over thejudiciary functioning in the Province (per Sharvananda, C.J. atR. 323). Of the three dissenting judgments, only the principal dissentreferred to the judiciary. That judgment dealt exhaustively with the
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provisions of the Thirteenth Amendment, and its background -terrorism and the secessionist problem, the reasonable governmentalefforts made to solve it politically without seeking a military solution,the various negotiations, etc. Although taking the narrow view thatthere was excessive devolution in respect of legislative and executivepower, yet, significantly, it did not find in the Bill, or even in itslegislative and executive history, any intention of devolution in regardto the judiciary – and it went no further than observations that theconferment of concurrent writ jurisdiction on the High Court wasinterference with, and devaluation of, the writ jurisdiction of the Courtof Appeal (per Wanasundera, J., at p. 380). None of the fivejudgments support the Respondent’s contention that there was in theThirteenth Amendment an intention to devolve judicial power. Therewas nothing more than a re-arrangement of the jurisdictions of thejudiciary. To accede to Counsel's invitation to adopt a liberalinterpretation would be, in this instance, a clear trespass into thelegislative domain.
The first question must therefore be answered in the negative.
2. By the Thirteenth Amendment, Parliament could have takenaway (or diminished) even an entrenched jurisdiction of the Court ofAppeal, because a constitutional provision can be amended by alater constitutional amendment. But Parliament cannot, by aconstitutional amendment, give itself a blanket authorisation to affectan entrenched jurisdiction by means of a subsequent ordinary law.For example, Parliament cannot confer an entrenched jurisdiction ofthis Court (e.g. under Articles 125 to 127) on High Courts, by an Actpassed under and in terms of Article 154P (3). However, thejurisdiction of the Court of Appeal under Article 138 is not anentrenched jurisdiction, because Article 138 provides that it issubject to the provisions ‘of any law": hence it was alwaysconstitutionally permissible for that jurisdiction to be reduced ortransferred by ordinary (aw (of course, to a body entitled to exercisejudicial power). That is the reason why I held (in Swastika TextileIndustries Ltd. v. Dayaratne,m that section 3 of the High Court of theProvinces (Special Provisions) Act, No. 19 of 1990, conferredconcurrent, appellate and revisionary jurisdiction on the High Courts
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in respect of Labour Tribunals, and that thereafter section 31D3 of theIndustrial Disputes Act, as amended by Act No. 32 of 1990, madethat jurisdiction exclusive, thereby taking away the jurisdiction of theCourt of Appeal in that respect). And it was the absence of such aprovision that made Parliament unable to reduce or affect thejurisdiction of the Court of Appeal under Article 140: because ‘itsjurisdictions under Articles 140 and 141 are entrenched; but for theproviso inserted by the First Amendment, its jurisdiction under Article140 cannot be transferred even to the Supreme Court"(Determination in re the Agrarian Services (Amendment) Bill™). It hadfirst to remove the entrenchment, thereby giving Parliament thepower, by subsequent ordinary law, to transfer part of that jurisdictionto this Court. If a constitutional amendment was necessary in order totransfer part of an entrenched jurisdiction from the Court of Appeal toa higher Court, it would be anomalous indeed if a transfer to aninferior court was possible without such an amendment.
a
Had the power conferred by Article 154P (3) (c) been enlarged bythe inclusion in sub-paragraph (c) of words such as ‘notwithstandinganything to the contrary in Article 141 of the Constitution", theposition might have been different. But in the absence of any removalof the entrenchment of that Article, I hold that Article 154P (3) did notauthorise Parliament, by ordinary law, to confer the writ jurisdiction ofthe Court of Appeal under Article 140 (either exclusively orconcurrently) on the High Courts.
While this makes it unnecessary to consider the Respondent'ssubmissions on the second question, I must mention that there is nodoubt whatever that Parliament did not even attempt to affect the writjurisdiction of the Court of Appeal. Section 3 of the High Court of theProvinces (Special Provisions) Act, No. 19 of 1990, conferred on theHigh Court appellate and revisionary jurisdiction in respect of LabourTribunals; the phrase “appellate and revisionary jurisdiction" hasbeen used in Article 154P (3) in contradistinction to the writjurisdiction, and hence the same phrase in section 3 cannot beinterpreted to include the writ jurisdiction. None of the otherprovisions relied on by the Respondent purport to confer jurisdiction.
Bandars and Another v. Premachandra, Secretary, Ministry of Lands,
SCIrrigation and Mahaweti Development and Others301
I therefore answer the second question in the negative.
The order of the High Court is set aside, and appeal is allowed,with costs in a sum of Rs. 2,000.
DHEERARATNE, J. -1 agree.
WADUGODAPITIYA, J. -1 agree.
Order of High Court set aside.