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
Sri Lanka Law Reports[19S3J1 Sri LJL'
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
2SASSrL Lanka-taw Reports[1983] 1 Sri LR.
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
i Sri Lenka Law Reports[1983] 1 Sri LR.
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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[1983]! Sri LR.
…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.)
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.
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
j——— — – •1
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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[1983] 1 Sri L.R.
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
Visuvalingam vs. Liyanage (Ranasinghe, J.l~
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.
.288 -,Sri Lanka Law Reports,[1983] 1 Sri LIL
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.)
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.
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…"
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-
,Sn Lanka Law Reports[1983]! Sri LR.
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
.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
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.
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.