LAND REFORM COMISSION v. GRAND CENTRAL LTD.

015-SLLR-SLLR-1981-2-LAND-REFORM-COMISSION-v.-GRAND-CENTRAL-LTD..pdf


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Land Reform Commission v. Grand Central Ltd.
147
LAND REFORM COMMISSION
v.GRAND CENTRAL LTD.
COURT OF APPEAL.
RANASINGHE, J. AND VICTOR PERERA, J.
C.A. L/A APPLICATION 20/81 – D. C. COLOMBO 14125/LC. A. APPLICATION 211/81-D. C. COLOMBO 14125/L.
MARCH 5. 9. 1981.
Attorney-General~Origins of office—Powers and functions of the holder of suchoffice—Attorney-at-law—Right to appear in court—Whether Attorney-General entitledto appear in Court as an attorney-at-law in his private capacity—Preliminary objectiontaken to such appearance before the Court of Appeal—Powers of Court to regulate itsproceedings—Judicature Act. No. 1 of 1978, sections 11, 15. 41, 47. 51-Code ofCriminal Procedure Act. No. 15 of 1979— Civil Procedure Code, as amended by LawsNos. 19 and 20 of 1977, Part IV and section 839 — Constitution of the Republic nf SriLanka, 1978. Arts. 13 (3), 14 (1) (g), 54, 61, 77. 125. 134. 169 (12).
The two applications before the Court of Appeal were for leave to appeal against, andfor revision of. an order made by the learned Additional Oistrict Judge of Colombo on20.2.1981 refusing an application made by the Land Reform Commission, thedefendant-petitioner, for the discharge and dissolution of an enjoining Older. This orderhad been made upon the application of the plaintiff-respondent ia private companyclaiming to be owner of certain estates) against the defendant-petitioner and its servantsand agents restraining them from interfering with the plaintiff-respondent's rights ofmanagement of the said estates. The Land Reform Commission was a statutoryCorporation pstahlishpd hy thp Lend Reform Law, No. 1 of 1972, which was a Lowenacted inter alia to fix a ceiling on the extent of agricultural land that a person couldown and to vest lands owned in excess of the ceiling in the Commission.
After these applications were taken up and the appearances for the respective partieswere marked a preliminary objection was taken on behalf of the plaintiff-respondentthat as senior counsel, who had marked his appearance for the defendant-petitionerin his private capacity as an attorney-at-law, was the holder of the office ofAttorney-General under the present Constitution of Sri Lanka, he could not as long as heholds such office appear before the Courts of the Republic except in his capacity asAttorney-General. On a clarification being sought by senior counsel for theplaintiff-respondent, senior counsel for the defendant-petitioner had categoricallystated that he and his two juniors, also officers of the Attorney-General's Department,were appearing in this case in their private capacities as attomeys-at-law, instructed bythe Legal Officer of the Land Reform Commission. The Court of Appeal reservedjudgment on the preliminary objection.
Held
Having regard to the functions , powers and duties attached to the office ofAttorney-General by tradition as well as by statutory provisions both in the past and atpresent, the holder of the said office under the present Constitution (1978), couldappear before the Courts of the Republic only in his capacity as Attorney-General andaccordingly could be heard by the Court of Appeal only in that capacity. Thepreliminary objection must be upheld.
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The Courts have an inherent power to regulate the proceedings before them, unlessthere is express statutory provision to the contrary, and accordingly have the discretionto decide who would be permitted to represent before the Court a party who has a rightto be heard in such Court. In the present case as the holder of the office ofAttorney-General was not appearing in that capacity, the Court could rule that he couldnot be heard as an attorney-at-law and for a party other than the State or any otherperson for whom he could appear in his official capacity as the Attorney-General.
Per Ranasinghe, J.
"A careful consideration of the provisions of the Constitution and also the other statutelaw referred to above shows that the Attorney-General is one of the very few, if not theonly one of officers appointed under the Constitution who, in the exercise of the functionsand duties attached to the office he holds, comes into direct contact with all threeorgans of Government—the Parliament, the President of the Republic and theCourts—through whom the sovereignty of the people, which is enshrined in and isrecognized and guaranteed by the Constitution, is exercised. Whatever such an officersays and does should always be said and done in his official capacity and for and onbehalf of the people of the Republic—not for and on behalf of any one person or agroup of persons only. It seems to me that the very appearance of an officer of such highstanding even in his personal capacity, for a private party would seem to be oppressive tothe other party to a private suit. The appearance of such an officer even though it is inhis private capacity is bound to carry with it, even though it may be quite unwittinglyand imperceptibly the full weight of the authority of his official position and instil in themind of the opposing party the thought that he has been placed at a disadvantage andthat the other side has obtained an added advantage over him. Even thougn such anappearance may not in fact secure for the party for whom such officer appears anyundue advantage, yet the thought or belief that would be entertained by the other partycannot be shrugged off as being altogether un.easoneblc ant! Iwsc'uvs.”
Per Victor Perera, J.
"On an examination of these provisions it is clear that the Attorney-Goneiai holds aunique position endowsd with wide powers, onerous rindes specie! rights in «»3anJto monerr. involving the cxcrciso of the ScvEia'ij.ify of the Peopleti.= C.tc«
limbs—
(11 Executive Power of the People;
Legislative Power of the People; and
Judicial Power of the People.
The significance of this fact is that, unlike in England where the Queen is the Sovereign,in the Republic of Sri Lanka, Sovereignty is in the People in terms of Article 3 of theConstitution and the Attorney-General represents and arts for the People r»f theRepublic."
Cases referred to
(1) Dahanayake v. D. G. Albert de Silva et. at., [1978-79) 1 Sri L. R. 41.
12) Trendtex Trading Corporation Ltd. v. Central Bank of Nigeria. [1976) 1 W. L. R.
868; [1976)3 AH ER. 437; [1377) Q.B. 629.
(3) Trendtex Trading Corporation Ltd. v. Central Bank ol Nigeria, (1977) 1 Allf .R. 881. 11977) 2 W, L.R. 356 (CA).
(41 Le Mesuner v. Layard, [1898) 3 N.L.R. 227
Re Moragodalianage Peris Perera, [1880) 3S C.C. 161.
Perera v. White, 11900) 4 N.L.R. 209
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Land Reform Commission v. Grand Central Ltd. (Ranasinghe. J.)
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VettNakj v. Wijeyeratne, [1956)60 N.L.R. 442
O'Toole v. Scon, [1965)2 All E.R. 240; [1965) AC 939; [1965) 2 W.L.R. 1160.
Collier v. Hicks, [1831) 2 B. and Ad. 663.
110) Simms v. Moore, (1970) 3 All E.R. 1; (1970) 2 W3..R. 1099.
Re S. (a banister). (1969) 1 All E.R. 949: (1969) 2 W.L.R. 708.
Attorney-General of Gambia v. N'Jie. (1961) 2 All E.R. 504;60 C.L.W. 71; (1961)
A.C. 617; (1961) 2 W.L.R. 845.
Frazer v. Queen's Advocate, (1863-68) Ram. Reps. 316.
D. M. Jayawardena v. Juanis Fernando, (1881) 4 S.CC. 77.
Attorney-General v. Don Sirisena, (1968) 70 N.L.R. 347.
Attorney-General v. E. P. Samarakkody and Another, (1955) 57 N.L.R. 412.
Attorney-General v. Saibo, (1912) 15 N.L.R. 204.
Le Mesurier v. The Attorney-General, (1906) 10 N.L.R. 67.
APPLICATIONS for leave to appeal from and to revise an order of the District Court,Colombo.
Shiva Pasupathi, with K. M. M. 8. Kulatunga and Suri Ratnapala, for thedefendant-petitioner.
H. W. Jayewardene, Q.C., with C. Ranganathan, Q.C., H. L. de Silva, K N. Choksy,Romesh de Silva ar.d Lakshman Percra, for the plaintiff-respondent.
Cur. etiv. volt.
April 10.1981.
RANASINGHE, J.
On 21.1.1981 the plaintiff-respondent instituted proceedingsin the District Court of Colombo, in case No. 14125/L, againstthe defendant-petitioner praying for: an order directing thedefendant-petitioner, its servants, agents and all those holdingunder it to hand over the management of the lands referred to inthe first schedule to the plaint and which were said to belong tothe plaintiff-respondent: an interim injunction preventing andrestraining the defendant-petitioner, its servants, agents and thoseholding under it from interfering in any way with theplaintiff-respondent's right of management of the said estates Untilthe hearing and the determination of this action.
Upon the application for the interim injunction being supported,the District Court made order, on 31.1.81, issuing notice of thesaid application upon the defendant-petitioner; and the learnedAdditional District Judge also proceeded to issue an enjoiningorder, preventing and restraining the defendant-petitioner and itsagents and servants, as prayed for, to be in operation until thedisposal of the application for the interim injunction.
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Thereafter, on 6.2.81 the defendant-petitioner made anapplication praying, inter alia, for the discharge and dissolution pfthe said enjoining order. After inquiry, order was made by thelearned Additional District Judge on 20.2.81 refusing the saidapplication.
The defendant-petitioner, thereupon, filed on 23.2.81 twoapplications before this Court: Application No. 20/81 for leaveto appeal to this Court against the said order, dated 20.2.81, interms of the provisions of the Civil Procedure Code: andApplication No. 211/81 to have the said order, dated 20.1.81,revised by this Court.
When these matters were taken up before this Court on 5.3.8T,the appearances for the respective parties—the defendant-petitioner, and the plaintiff-respondent—were marked as set outabove. Thereupon Mr. Jayewardene, Q.C. sought clarification asto whether Mr. Pasupathi, who is presently the holder of the officeof Attorney-General, appears in this case in his official capacity ornot. Mr. Pasupathi's clear and categorical reply was that he and histwo juniors who are also both officers of the Attorney-General'sDepartment, appear in this case, for the defendant-petitioner, intheir private capacities, as ordinary attorneys-at-law. Mr. Pasupathidid also at the same time proceed to make a statement, which,however, is not televani at this stage, but which would be referredto by me at a later stage of this order. '
Upon Mr. Pasupathi so clarifyinghis position,' Mr. Jayewardene,
Q.C. informed this Court that he proposes to take the followingpreliminary objection, on behalf of the plaintiff-respondent: that,as Mr. Pasupathi holds office as Attorney-General tinder thepresent Constitution of the Republic of Sri Lanka he cannot, solong as he holds such office, appear before the Courts of theRepublic except in his capacity as Attorney-General; and that,therefore, he cannot in this case appear in his private capacity asan attorney-at-law, for the defendant-petitioner. Mr. Jayewardene,
Q.C. made it clear that this objection was only in respect of theappearance of Mr. Pasupathi in the capacity in which he seeks toappear and was not in this case directed against Mr. Pasupathi'sjuniors. The sum and substance of his submission is: that theoffice of Attorney-General is a very high and exalted office underthe Constitution: the holder of such office has to perform bothunder the Constitution, and under certain other statutes functions
CA Land Reform Commission r. Grand Central Ltd. (Ranannghe. J.i '161
which are of a very responsible and solemn nature: that he is thechief adviser, on aH legal matters to the Government: that bytradition too the office of Attorney-General carries with it certainfunction and privileges which are not accorded to any othermember of the legal profession—e.g. the Attorney-General isaccepted as the head of the Bar- of both the official andunofficial— is accorded a special place of honour, both at ceremonialsittings of The Supreme Court and at meetings of the Bar Council:that die Attorney-General ought to appear before the courts onlyin his capacity as Attorney-General: that, having regard to thenature of the functions, powers and duties attached to the officeof Attorney-General, both by (aw and by tradition, it would beimproper for the holder of such office to appear before a court inhis private capacity, as any other attorney-at-law: that a court hasan inherent right to regulate its own business, and, in the exerciseof such power, a court can and must refuse to hear such anofficer, who should, in view, inter alia, of the constraints of the .office, which he himself has voluntarily accepted, only appear inhis official capacity, if and when he seeks to appear before thecourt in any other capacity.
Mr. Pasupathi, however, maintained that he is entitled to appearbefore this Court in his private capacity. He maintained that, solong as he is an attorney-at-law who has taken his oaths as anattorney-at-law under the Constitution, he is entitled, under theprovisions of section 41, Judicature Act, No. 2 of 1978, to appearbefore any court of this Republic as an attomey-at-law, and, assuch, he is entitled to the right of audience set out in the provisionsof Article 169 (12) of the Constitution. The fact that he is also theAttorney-General does not detract from his right to appear and tobe heard purely in his capacity as an attomey-at-law. Hestrenuously maintained that there is ho legal impediment to hisappearing also as an attomey-at-law and that, so long as thereexists no such legal impediment, he could also appear, if he sodesires, in his private capacity for a client before any court of thisRepublic. He maintained that the question of the propriety of hisconduct in so appearing does not arise so long as, as already stated,there is no express legal prohibition against his appearance, in hisprivate capacity. The question of propriety, he maintained isentirely a matter between himself and the proper professionaldisciplinary authority, and is not a matter for consideration bythis Court
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Mr. Pasupathi laid great emphasis upon the argument that thereis nolegarimpedfment to hie appearing in his private capacity andthat so long as there'is no sbch tegaf impfedimentthis'Gourt Cannot’ and-sKoo'ld not deny him'a hearing. 'r ' ■
I shall, before proceeding-to Consider the respective argumentspuMforwardat the hearing, dispose of two matters, which-werereferred to by Mr. Pasupathi in the course of his submissions anda reference to one of which-has also been made thereafter iri- thewritten submissions made, on behalf of the defendanf-petitiorier.Mr. Pasupathi, in the course of bi$Jsubmission, dichstate that heis appearing in this-pase for the defendant-petitioner upon adirection given to him by the Head of the State. The impressionthat I formed then was' that this statement' was made byMr. Pasupathi in order to .support the propriety of appearing theway he is appearing in this case; That aHead of a State—particularlyan elected executive' Head of State—would, in certain situations,consider it necessary, to direct the chief legal adviser to theGovernment to go into .court in order to protect the interests ofthe State is not anythingunusual or unnatural undera Constitutionsuch as the Constitution of 1978. If and when such-a direction isgiven, it appears to me that it is for the Attorney General himselfto decide how best he shpuld set about it, having due regard bothto the relevant express, provisions of law and tradition. Be thatas it may, any such direction is, in my opinion, not relevant fortjue purpose of considering the issue arising oui of the preliminaryobjection taken in this case. Mr. Pasupathi did also at one stageduring his oral submissions in reply to Mr. Jayewardene, Q.C., citethe judgment of His Lordship, the Chief Justice in the case ofDahanayakey. 0. G. Albert de Silva el at. (1}, and seek to arguethat the, party for whom he is seekipg to appear is no ordinaryparty litigant bu{ an agency of the State. Mr. Jayewardene, Q..C.did, in his’reply, draw the attention of this cp.urt .to the fact thatthe ’decision in the English case of Trendtex Trading Corporationv. The Cehtral Bank (2), referred to by the Chief Justice in thatcaSie had, even by then, been set aside in appeal by the Court ofAppeal f3) and that this fact does not seem to have-been broughtto the notice of the Chief Justice. Mr. jayewardene, Q.C. furthersubmitted’that although leave to appeal to the House of Lordshad Been granted by the Court of Appeal, the appeal does notseerb to have been prosecuted and that there is nothing to showthat the judgment Of the Court of Appeal has been set aside. Atthe hearing of this application rio further submissions were rhade
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thereafter by Mr. Pasupathi in regard to this matter, although inthe written submissions once again this position has been advertedto. i do not think it necesary for me to embark upon an exami-nation of the question whether or not the defendant-petitioneris or is not an agency of the State, for the simple reason that, ifit is, then there would be no question about the right of theAttorney-General to appear for the defendant-petitioner in hisundoubted capacity as Attorney-General; yet, Mr. Pasupathi, theAttorney-General, does not so seek to appear but insists onappearing in his personal capacity. Hence I do not think that thismatter should detain me any further.
The origin of the office of Attorney-General could be tracedback to the office of “Advocate Fiscal” which was in existenceunder the Dutch towards the latter stages of their rule in thisIsland, and which office continued even during the early yearsof British occupation until the year 1834 when the name waschanged to that of “King's Advocate". This designation wasthereafter changed, in the year 1883, by the provisions ofOrdinance 1 of 1883, to the present day appellation of"Attorney-General". Bonser, C. J. in the year 1898, in the case ofLe Mesurier v. Layard (4), at p. 230 observed that:
"The present Attorney-General is the lineal successor of theold Advocate Fiscal, and just as in old days action against theGovernment was brought against the Advocate Fiscal asrepresenting the local "Fisc" or Treasury, so they may now bebrought against the Attorney-General."
Furthermore, the judgments of Cayley, C. J. and of Clarence, J.in the case of Moragodaliyanage Peris Perera (5), do show that theQueen's Advocate was the principal law officer of the Governmentin all criminal matters as well. The development of the office ofAttorney-General in this Island thereafter under the British couldbe followed through the pages of the Reports of the DonoughmoreCommission of 1928 and of the Soulbury Commission of 1945.At page 107 para 401 of the Soulbury Commission Report it isstated:
"We have already recommended that the A.G. should becharged with the duties now carried out by the Legal Secretaryunder this heading. We envisage that, under the Constitutionwe recommended, Ministers will require legal assistance in
the day-to-day running of their departments, (b) the passage
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of Bills through Parliament, especially at the Committee stage,
the interpretation of existing laws and the departmentalmatters which may involve legal proceedings, and (d) matters ofhigh constitutional policy, on which the Cabinet as such mayrequire advice".
The Ceylon (Constitution) Order-in-Council 1946 (Cap. 379)which came into operation thereafter in 1947 had certain specificprovisions relating to the Attorney-General; e.g., the appointmentof the Attorney-General by the Governor-General (Sec. 60): thatthe Speaker should, before giving his certificate to certainspecified Bills, consult the Attorney-General or the Solicitor-General. (Secs. 33 (2) and 34 (2) ).
Then came the first Republican Constitution of 1972. ThisConstitution provided for the appointment of the Attorney-Generalby the President of the Republic (Article 108 (b)); and alsocontained certain specific provisions relating to the duties of theAttorney-General: duties pertaining to the examination of and thecommunication of his opinion to the Speaker in regard to certainBills, which have been published and the amendments proposedto such Bills (Article 53): the right to be heard on all mattersbefore the Constitutional Court (Article 63).
The present Constitution, which has been in operation fromSeptember, 1978, too contains provisions relating to theAttorney-General: the appointment by the President of theRepublic (Article 54): the taking (or making) and subscribing ofthe oath (or affirmation) set out in the 4th Schedule beforeentering upon the duties of his office (Article 61): duties inregard to published bills (Article 77): the right to be heard in allproceedings in the Supreme Court in the exercise of the SupremeCourt's jurisdiction in respect of constitutional matters, of Billsboth ordinary and Urgent of the interpretation of the Constitution,of Fundamental Rights, of the expression of opinions at therequest of the President of the Republic and of the Speaker, andof Election Petitions (Article 134).
The provisions of the Judicature Law, No. 2 of 1978, too conferupon the Attorney-General powers of a very responsible nature:the power to determine whether a trial in the High Court shall beby Jury (Sec. 11): the right to appeal to the Court of Appeal fromsentences imposed by and also orders of acquittal rriade by the
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High Court (Sec. 15): by his fiat in writing to designate, in certaincircumstances, the court or place at which any inquiry into or thetrial of any criminal offence shall be held (Sec. 47) : the right toelecting, in certain circumstances, the court, before which aprosecution for any crime or offence declared punishable by fineor imprisonment, may be initiated (Sec. 51).
The Attorney-General has also been vested with, under theprovisions of the Code of Criminal Procedure Act, No. 15 of 1979,very wide and far-reaching powers and functions which call for theexercise of an independent and impartial determination: to decide,ir. case of doubt, the court in which an offence should be inquiredinto (Sec. 133): to grant the requisite sanction without whichthe courts will not take cognizance of certain offences (Sec. 135):the initiation of proceedings before a Magistrate's Court (Sec.136 (1) (c) ) : giving of directions to a Magistrate with regard tothe initiation of a preliminary inquiry in respect of certainoffences (Sec. 145 (1) (b), and the proviso to Sec. 142 (2) ): topresent indictments to the High Court (Sec. 160): to determine, incertain circumstances, that trial of certain offences be onindictment before the High Court by a jury (Sec.161): sanctioningof the discharge of an accused person by a Magistrate (Sec. 190):the conduct of the prosecution in the Magistrate's Court (Sec.191 (1)), and even in regard to private plaints (Sec. 191 (2)): powersin regard to withdrawal of prosecutions initiated before the HighCourt (Sec. 194): the tender of pardon to accomplices (Sec. 256,257): appeals from acquittals (Sec. 318) and from convictions(Sections 320 (2)): the appearance for the State in every appeal tothe Court of Appeal where the State or a public officer is aparty (Sec. 360) with regard to certain offences affecting theadministration of justice (Sec. 389): the power to exhibitinformation, present indictments to institute, undertake andcarry on criminal proceedings in certain specified cases (Sec.393 (1) ): the power to give advice, whether on application orex mero moto, to State Departments, public officers, officers ofthe Police and officers in Corporations in criminal matters(Sec. 393 (2)): the power to summon any officer of State or of aCorporation or of the Police to attend his office with thenecessary books and documents for certain specific purposes(Sec. 393 (3) ): the right to have Superintendents and AssistantSuperintendents of Police reporting to him the commission ofcertain specific offences and the supplying of all relevantinformation required by the Attorney-General (Sec. 393 (5) (b)):
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the power to call for the original record and productions (Sec.395): power to quash a commitment made by a Magistrate andissue instructions to a Magistrate (Sec. 396): power to order aMagistrate to take further evidence (Sec. 397): power to call forthe proceedings in any criminal case from a Magistrate or a Judgeof the High Court (Sec. 398): power to direct a Magistrate tocommit an accused person who has been discharged (Sec. 399):power to exhibit information to the High Court to be tried by theHigh Court at Bar (Sec. 450): powers in regard to applications forbail-Chap. XXXV and the provisions of Acts Nos. 15 of 1978and 54 of 1980.
The provisions of law relating to civil actions in which theAttorney-General figures are to be found in Part IV of the CivilProcedure Code, Chapter 101, as amended by Laws Nos. 19 and20 of 1977: section 456 provides that all actions by or against theState should be by or against the Attorney-General: that ailprocesses issuing against the State should be served upon theAttorney-General (Sec. 457): that the Attorney-General beallowed reasonable time to file answer (Sec. 458): no action to befiled against the Attorney-General, as representing the State,unless one month's notice of such action has been given to theAttorney-General (Sec. 461): the power to undertake the defenceof an action against a Minister and other specified classes ofpersons (Sec. 463). Furthermore, the Attorney-General has beenvested with powers and duties which have to be exercised for theprotection of the interests of minors, who are considered wardsof the District Court, in terms of the provisions of sections 589,591, 592(2) of the Civil Procedure Code. So too in relation topersons ofunsound mind-vide sections 556 (2), 572 (2), 575 (1).
Furthermore, the Attorney-General has to perform certainspecial functions when disciplinary action is set in motion againstattorney tat-law, in terms of the Rules which the Supreme Courthas made in pursuance of the rule making power vested in theSupreme Court by the Provisions of Article 136 (1) ig) of theConstitution. In terms of the said Rules, once the Supreme Courtissues a Rule upon an attorney-at-law calling upon him to showcause why he should not be suspended or removed from office,it is the Attorney-General (or the Solicitor-General, or anyother officer of the Attorney-General's Department) who appearsbefore the Supreme Court in support of such Rule and leadsevidence against the attorney-at-law concerned. Then when an
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attorney-at-law, who had been removed from office desires toapply to the Supreme Court for re-admission and re-enrolment, hehas to make the Attorney-General a respondent to his application.
The Attorney-General of this Island has also, by tradition beenaccepted as the titular head of the Bar both of the official and ofthe unofficial: been given a special place of honour and ofresponsibility on behalf of the Bar at all ceremonial sittings of theSupreme Court: presided over meetings of the Bar Council.
The Attorney-General has, as already stated to, before he entersupon the duties of his office, take (or make) and subscribe theoath or affirmation, which is set out in the Fourth Schedule,whereby he has to "faithfully perform the duties and discharge the
functions" of his office "in accordance with the Constitutionand
the law."
A consideration of the foregoing makes it quite evident that theAttorney-General appointed by the President of the Republicunder the provisions of the Constitution is an officer who is notonly the chief legal adviser to the State, both in matters civil andcriminal, and the person by and against whom all claims of a civilnature by and against the State are instituted, but is also theperson who is responsible for initiating, on behalf of the Republic,all proceedings to bring to book all offenders against the criminallaw of the land: that the powers, functions and duties attached tothe office of Attorney-General, both by statute and by tradition,are such that the person who holds the office of Attorney-Generalought to appear before the courts only in his capacity asAttorney-General and Attorney-General alone. Very greatemphasis was placed throughout his submissions by Mr. Pasupathion the argument that so long as there is no legal impediment to hisappearing in his private capacity he is entitled to apppear in suchcapacity, and that the Court must hear him in such capacity. Trueit is that there is no express legal provision anywhere which expresslyprohibits the person, who holds office as Attorney-General, fromappearing before the courts of this Island in his capacity as anordinary attorney-at-law; yet, it appears to me that the expressprovisions of law referred to earlier and also tradition constituteconstraints, which tend to operate against the holder of the office ofAttorney-General from appearing before the courts in a capacityother than' in his official capacity, and that the said constraints theCourt itself, should take cognizance of.
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It also seems to me that two simple illustrations would helpshow that this argument—based upon the lack of a legalimpediment is far from convincing, and would not bear closescrutiny. Carried to its logical conclusion this argument could bemade use of to justify an appearance, by the officer holding thepost of Attorney-General, for the defence in a criminal case, say ina prosecution by the police in a Magistrate's Court, or even in aprivate plaint There is no express provision which could bepointed to urge that he is expressly prohibited from doing so. Vet,having regard to all the powers and functions, vested by theprovisions of the Criminal Procedure Code in the Attorney-Generalsuch a step on his part would seem to me to be even unthinkable.Take then a civil suit between two private party litigants.There lies the possibility, if not in every such suit, at leastin a large number of Such civil suits, of a question whichwould involve the interpretation of the Constitution arising in thecourse of it. What is to happen if and when a question relating tothe interpretation of the Constitution arises in a case is set out inArticle 125 of the Constitution. If the holder of the post ofAttorney-General is already appearing in his private capacity forone of the parties to such a suit then the same person would notonly receive, in his capacity as Attorney-General, a notice in termsof the provisions of Article 134 of the Constitution, from theSupreme Court but he could also, in such capacity, exercise hisright to be heard in terms of the provisions of the self-sameArticle. Such a situation could certainly have not beencontemplated by the framers of the Constitution. What wouldhave been contemplated and intended was an independent andan uncommitted officer proferring to the Supreme Court assistance,untrammelled by any extraneous considerations; and, what iseven more important, assistance which would not carry with iteven the slightest hint of it being anything but strictly impartial.
During the course of his submissions, Mr. Pasupathi tendered tothis Court a list of cases in which the Law Officers of the Crownhad appeared for private parties in cases before the courts. Thislist certainly makes interesting reading and brings to light notonly instances in which the two Law Officers had been pittedagainst each other and also occasions when the Solicitor-Generalof the day had led the Attorney-General of the day in a civil suit.It has to be noted that, whilst the earliest case in the list is a casein 1880 the latest is one in 1915. No case thereafter has beenbrought to our notice. Hence for well over half a century—during
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the last 65 years at any rate—there has never been a single instancein the history of this Island where an Attorney-General of the dayhad left aside his official mantle and stepped down in his privatecapacity, into the arena of litigation—civil or otherwise—betweenordinary private parties before the courts oil this Island. Jt has alsoto be noted that the period covered by the said list is a periodduring the entirety of which this country was subject to colonialrule. Suffice it so say that, even before we gained independenceand the Attorney-General came to be appointed by the Presidentunder the Republican Constitution the Attorney-Generals of thiscountry had given up the said practice.
Considerable reliance was also placed by Mr. Pasupathi on thetwo cases of : Perera v: White (6), and Vettivelu v. Wijeyeratne (7).The judgments in both cases do contain opinions and observationswhich do support the view that there is nothing to prevent aprofessional officer of the Attorney-General's Department fromappearing for private parties in private litigation. Nevertheless, itmust be noted that whilst Bonser, C. J. in Perera's case did acceptthe position that " it is desirable" that at least one of the LawOfficers of the Crown "should be free to take an unprejudicedview so as to be able to advise the Government", de Silva, J. inVettivelu's case did accept the position that the reason why theLaw Officers and Crown Counsel did not generally representparties in private litigation was because of "the conditions ofservice binding on them", and also took cognizance of the practicethat even where the Attorney-General did not take up the defenceof a public officer who is sued in court, but yet instructs anofficer of his Department to appear for such public officer, theofficer of his (Attorney-General's) Department so appears onlyin his official capacity. Even in regard to these two cases what hasto be noted is, that, whilst one (Vettivelu's case) did not deal withthe position of the Attorney-General, they both belong to an eralong prior to the Constitution of 1978.'
A careful consideration of the provisions of the Constitutionand also the other statute law referred to above shows that theAttorney-General is one of the very few, if not the only oneof officers appointed under the Constitution who,in theexerciseofthe functions and duties attached to the office he holds, comesinto direct contact with ail three organs of government—theParliament, the President of the Republic, and the Courts^-throughwhom the sovereignty of ;the people, which is enshrined in and is
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recognized and guaranteed by the Constitution, is exercised.Whatever such an officer says and does should always be said anddone in his official capacity and for and on behalf of the peopleof the Republic-not for and on behalf of any one person or agroup of persons only. It seems to me that the very appearance ofan officer of such high standing even in his personal capacity, fora private party would seem to be oppressive to die other party toa private suit. The appearance of such an officer even though itbe in his private capacity is bound to carry with it, even thoughit may be quite unwittingly and imperceptibly the full weightof the authority of his official position and instil in the mind ofthe opposing party the thought that he has been placed at adisadvantage and that the other side has obtained and addedadvantage over him. Even though such an appearance may notin fact secure for the party for whom such officer appears anyundue advantage, yet the thought or belief that would beentertained by the other party cannot be shrugged off as beingaltogether unreasonable and baseless.
In England from the very earliest times the Judges have had thepower to regulate the proceedings in their own Courts, andinherent in it was the discretion to decide whom they wouldpermit to represent, before them, the party litigants. As timewent on the judges delegated to the Inns of Court the function ofselecting fit and proper persons whom the judges may permit toappear before them. Even so, the judges retained to themselves thesupervisory powers in respect of them.
In the case of O'Toole v. Scott (8) their Lordships of the PrivyCouncil had occasion to discuss the question whethdf a person hadby law a right to act as an advocate before the justices of thepeace; and Lord Pearson quoted, at page 242, the judgment ofLordTenterden in the case of Collier v. Hicks (9), to the effect:
"This was undoubtedly an open court and the public hada right to be present, as in other courts; but whether any person,and who shall be allowed to take part in the proceedings, mustdepend on the discretion of the magistrates; who, like otherjudges, must have the power to regulate the proceedings of theirown Courts";
and, at p. 243, the judgment of Parke, J. also in the same case:
"No person has the right to act as an advocate without theleave of the Court, which must of necessity have the power of
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regulating its own proceedings in all cases where they are notalready regulated by ancient usage. In the superior Courts, byancient usage, persons of a particular class are allowed topractise as advocates, and they could not lawfully be prevented;but justices of the peace who are not bound by such usage, mayexercise their discretion whether they will allow any, and whatpersons, to act as advocates before them".
At page 243, Lord Pearson also sets down the other casesillustrating the general principle that, subject to usage or statutoryprovisions, Court or tribunals may exercise a discretion whetherthey will allow any, and what persons, to act as advocates beforethem. O'Toole's case (supra) was quoted with approval in thelater case of Simms v. Moore (10).
In the case of Re S. (a barrister) (11) where Pauli, J. went intothe way a barrister became a person having a right of audience inthe Superior Courts of England, and into the relationship betweenthe Inns of Court and the judges, quotes at page 955, the words ofLord Denning in the case of A.G. of the Gambia v. N'Jic (12), at508:
" By the common law of England, the judges have the rightto determine who shall be admitted to practise as barristersand solicitors; and, as incidental thereto, the judges have theright to suspend or prohibit from practice, in England,this power lias for a very long time heen delegated as far asbarristers are concerned, to the Inns of Court; and, for muchshorter time, so far as solicitors are concerned to the LawSociety."
The principle which, in my opinion, could be culled from thesejudgments is that there is an ancient and an undoubted right inthe courts of England to regulate the proceedings before them,and inherent in it is, unless there is statutory provision to thecontrary, the discretion to decide whom the Courts would permitto represent before them a party who has a right to be heard bythem. In this Island, where the system of Judicature and therelations between the Bench and the Bar are based upon principlessimilar to these obtaining in England, such an inherent powerwould rest in our Courts, in terms of the provisions of section 839Civil Procedure Code, unless of course there is express statutoryprovision to the contrary. Such a principle cannot, in my opinion
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be said to be out of “harmony with sound general legalprinciples/' or be “inconsistent with the intentions of theLegislature."
In Sri Lanka the duty of putting forward persons as fit andproper persons whom the judges could permit in their respectivecourts to appear on behalf of party litigants, who come beforethem, has been vested by statute in the Council of LegalEducation. Mr. Pasupathi also highlighted the provisions ofArticles 13(3), 169(12) of the Constitution, and of section 41of the Judicature Act, No. 2 of 1978, in support of his contention.
Article 13(3) of the Constitution provides that a person"charged with an offence shall be entitled to be heard in personor by an attorney-at-law…." This guarantee of being heard inperson or through an attorney-at-law is extended only to “aperson charged with an offence."
What Article 169 (12) provides is that, after the appointed datereferred io therein, “no attomey-at-iaw shall be entitled torepresent any party to a proceeding or be given the right ofaudience in any Court, Tribunal or other Institution until or unlesshe has taken and subscribed the oath or made and subscribedthe affirmation set out…." This Article cannot be said to conferany substantive rights on the attomeys-at-law. It cannot be reliedon to vest in the attomeys-at-law a right of audience. All that itstates is that unless and until an attomey-at-iaw takes theprescribed oath, he will not be able to exercise either the right torepresent another before a court of taw or the right to be heardbefore a court of law. Neither of these rights is conferred by theprovisions of this article on an attorney-at-law. It is not anempowering provision. All that it seeks to do is to place a bar tothe exercise of certain rights, which it is assumed have been vestedin an attorney-at-law by some other provision of law ordained byParliament One has to look to other statute law for the vesting,if any, of such rights in an attorney-at-law. Section 41 of theJudicature Act, No. 2 of 1978, is pointed out as such a provisionof law.
Section 41 of the Judicature Act, No. 2 of 1978, provides:
"Every attorney-at-law shall be entitled to assist and advise
clients and to appear, plead or act in every Court or other
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institution established by law— and every person who is aparty to or has or claims to have the right to be heard in anyproceeding in any such Court or other institution shall beentitled to be represented by an attorney-at-law.''
An analysis of the provisions of this section shows that it dealswith two matters: that every attorney-at-law "shall be entitled” toassist and advise clients and to appear, plead or act in every court:that every person who is a party or claims the right to be heard ina court shall be entitled to be represented by an attomey-at-law.An appearance of an attorney-at-law in court is on behalf of a"client", it is interesting to note that in England Barristers aredivided into two categories:"Practising Barristers" and
"Non-practising Barristers". The definition of a "PractisingBarrister" as set out in the Regulations of the Bar Council—videHalsbury, Vol. 3 (4th edition), page 594, para 1110, note II—is:
"a barrister who is entitled to practise and who holds himself
out as ready to do so not being otherwise employed in a wholetime occupation, or a barrister whose whole regular occupationis that of editor or reporter of any series, of law reports entirelywritten and edited by barristers for the use of legal profession".Our attention has not been drawn to any corresponding definitionin Sri Lanka. Be that as it may the English definition contains animportant characteristic of a practising lawyer, be he called abarrister or attomey-at-law. It is that his services as a professionalis fully and entirely devoted to those who require his services assuch. He is not one who is "otherwise employed" and is expectedto devote his full time to the discharge of the functions and dutiesof such office, for which he is paid a salary, and is able to appearin court for another only when his services are not "otherwise"required, it appears to me that an attomey-at-law, who, of hisown free will, accepts office as Attorney-General and takes andsubscribes the oath or affirmation set out in the fourth Schedulecan and must thereafter be taken to have opted to appear in courtonly on behalf of his one and only "client", the state (and or anagency of the state or any other person for whom he could appearin his official capacity as the Attorney-General).
The "right" conferred on an attomey-at-law by section 41is not a right in the sense that it casts a corresponding dutyon another and an infringement or a denial of which could bevindicated in a manner in which a "right" in that sense couldordinarily be vindicated, ft appears to me to be more in the nature
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of a privilege or a licence. The provisions of this section do not, inmy opinion, come into conflict with the inherent right of thecourts of this Island to regulate the proceedings in their courts asreferred to earlier. Nor could they be said to be incompatible withsuch an inherent right
In this view of the matter, I am of opinion that, having regardto the functions, powers and duties attached to the office ofAttorney-General, both by statute and by tradition, the holder ofthe office of Attorney-General under the present Constitutionshould appear before die courts of this republic only In hiscapacity as Attorney-General, and th2t the holric. of the saidoffice should be heard by this court only in his capacity as thesaid Attorney-General.
For the reasons, I make order upholding the above-mentionedpreliminary objection raised on behalf of the plaintiff-respondent.
VICTOR PERERA, J.
This is an application No. C.A. 211/81 by the Land ReformCommission as petitioner for the revision of an order made by theDistrict Judge of Colombo and the application No. C.A. 20/81 isone for leave tc appeal from ihe same order. This order is onemade in a purely civil action between a private company, GrandCentral Limited and the Land Reform Commission which is astatutory Corporation constituted under the Land Reform Lawand a distinct legal entity. It would appear from the pleadings anddocuments filed in these applications that the subject matter indispute was the management of some estates admittedly belongingto the plaintiff-respondent entrusted to the Land ReformCommission and the termination of the management The disputewas thus one strictly between the company and the Land ReformCommission.
When the matter was taken up before us on the 5th March,1981, Mr. S. Pasupathy, the Attorney-General, Mr. K. M. M. B.Kulatunga, Deputy Solicitor-General and Mr. S. Ratnapala, StateCounsel, marked their appearances for the defendant-petitionerinstructed by Mr. P. K. T. Perera, the Legal Officer of and anemployee of the Land Reform Commission who had filed hisproxy on behalf of the Commission.
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Mr. H. W. Jayewardene, Q.C., Mr. C. Ranganathan, Q.C.,Mr. H. L de Silva, Mr. K. N. Choksy, Mr. Romesh de Silva, andMr. Lakshman Perera marked their appearances for therespondent-company instructed by Messrs Julius & Creasy whohad filed the proxy for the company.
At the very outset Mr. H. W. Jayewardene, Q.C., sought aclarification as to whether Mr. S. Pasupathy appeared for thedefendant-petitioner as the Attorney-General or as a privateattorney-at-law instructed by Mr. P. K. T. Perera, the Legal Officerand employee of the petitioner.
Mr. S. Pasupathy thereupon categorically stated that he was notappearing as the Attorney-General and that he was appearing inhis private capacity as an attomey-at-law instructed byMr. P. K. T. Perera for the Land Reform Commission. He assertedthat he had complied with article 169 (12) of the Constitutionwhich entitled him to the right of audience as an attorney-at-lawhaving taken the prescribed oath. Mr. Jayewardene, Q.C., thereuponstated that he was taking a preliminary objection to Mr. Pasupathyappearing in his private capacity in a purely civil dispute betweentwo parties.
It is to be noted that Mr. H. W. Jayewardene, Q.C., is thePresident tmeritus of the Bar Association ot Sri Lanka, and thatMr. S. Pasupathy is the official leader of the Bar by virtue of hisholding the office of the Attorney-General, who are deeplyconcerned with the interests and traditions of the legal profession.
Mr; Hr- W. Jayewardene, Q.C., stated that the point he wastaking was a very important one which affected the entire legalprofession, professional conduct, the appearances according toseniority, seniority depending on the date of call to the bar andthe right of salaried employees under the State appearing in Courtand principally the right of the holder of the very high officeof Attorney-General appearing in his private capacity as a lawyerin a purely civil case between private parties. He contended thatwhile Article 169(12) of the Constitution (1978) entitled anyattomey-at-law to represent any party to a proceedings or gavehim a right of audience in any court. Tribunal or other institution,it was a franchise or privilege which a person could exercise solong as there was no legal prohibition, no constraints inherent inthe nature of the office the person held or so long as there was no
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conflict with the interests the person whose interests he has tolook after by virtue of his office.
He contended that this court had a duty and right to adjudicateupon the question whether a person is entitled to the right ofaudience in a given case when such a right is questioned or wherethe absence of such a right is brought to the notice of court.
We therefore decided to hear submissions on this preliminaryobjection on behalf of both parties.
Mr. Jayewardene traced the history of the office of Attorney-General in this country from the earliest times in support of hiscontention that there are certain constraints attached to a holderof the office of Attorney-General which this Court should takenote of and must uphold in the interests of the Administrationof Justice.
After the Dutch Settlements in Ceylon were ceded to theBritish Crown, there was appointed a Governor to govern thecountry for the British Sovereignty. By Proclamation dated 23rdSeptember, 1799, the Roman-Dutch Law was established as thecommon Law of the ceded territory and by Royal Commandtemporarily the Administration of Justice and Police were orderedto be exercised in conformity with the laws and institutions thatsubsisted under the United Provinces, namely, the DutchGovernment, subject to deviations or alterations to be made fromtime to time. Under that system of the law the 'Fisc' meantTreasury, State or Crown and the Advocate Fiscal was the principalofficer of the Government against whom any claim could be madeas against the Government (vide Le Mesurier v. Layard (4).)Theoffice of Advocate Fiscal continued for some time till about 1934,when the title of this officer was changed to King's Advocate, thechange having been brought about by Royal Charter dated18.2.1933.
As Bonser, C. J. pointed out in the above case:
"The present Attorney-General is the lineal successor of theold Advocate Fiscal, and just as in the old days actions againstthe Government were brought against the Advocate Fiscal asrepresenting the local 'Fisc' or Treasury, so they may now bebrought against the Attorney-General."
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In that case a 'dismissed officer of the Civil Service' sued theAttorney-General not in his personal capacity but as representingthe Government of Ceylon. Lawrie, J. referring to the distinctiondrawn between the 'Crown' and the 'Government of Ceylon'agreed that there was such a distinction and held that theAttorney-General was the correct party defendant, if the partysued was the Government of Ceylon.
The importance of the office of King's Advocate or Queen'sAdvocate was still further accentuated by the provisions in theLaw of Evidence Ordinance, No. 9 of 1852, in section 6:
"(6) Nothing herein contained shall render the Queen'sAdvocate compellable to give evidence in any court in theIsland instituted by or against that officer in his officialcapacity."
Ordinance No. 11 of 1868 was introduced to amend andconsolidate the Law in the Colony relating to the administrationof justice replacing the Royal Charter of 1833. Section 86 of thatOrdinance provided for civil actions to be fiied in the Court ofRequests. Section 90 provided that if any person committed perjuryin any civii case in the Court of Requests, the Commissioner wasobliged to give information to the Queen's Advocate forthwith.Tliis by implication meant that he should uui otherwise appear inthe Court of Requests. Section 111 dealt with the Queen'sAdvocate's powers of prosecution in .regard to certain offences, hisright to stop proceedings or to intervene in any prosecution andgave him the power to order the liberation of persons committedto jail. Section 117 dealt with his powers in civil cases andprovided that the Queen's Advocate shall institute all civil suitson behalf of the Crown and gave him the right to appear in all civilsuits instituted by any private party against the Queen's Advocate.Section 118 provided for the maintaining of a special roll in courtreferred to as the Queen's Advocate's Roll.
In the case of Frazer v. Queen's Advocate decided in July1868 (13), at page 322 Creasy, C. J. and Stewart, J. held as follows:
"We humbly consider that by these declaration of the RoyalWill, Her Majesty's subjects in this Island who had or mighthave any money due to them from the local government forwages, for salary, for work, for materials, in short for anything
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due on an obligation arising out of contract, were permitted toretain the old practice given by the Roman Dutch Law to suethe Advocate of the Fiscal, now styled the Queen's Advocatefor recovery of their money."
In the case of D. M. Jayawardena v. Juvanis Fernando, and theQueen's Advocate decided on 7.6.1881 (14) an action upon acontract with a government officer acting on behalf of thegovernment, was filed against the Queen's Advocate as representingthe Crown. The Queen's Advocate demurred to this on twogrounds, first that the Crown could not be impleaded by a subjectand secondly that even if the Crown could be sued, there ms noenactment which made the Queen's Advocate the representativeof the Crown. It was held that the proper mode was to sue theQueen's Advocate, the representative of the Crown in suits againstthe Crown. Cayley, C. J., having referred to the series of caseswhen the Queen's Advocate had been sued as the representativeof the Crown held:—
"The practice to adopt the procedure of suing the Crown inthe person of the Queen's Advocate has never so far as weknow been disputed in our courts. It would be needless tomultiply citations of Ceylon cases on this point for the fact thatsuch a practice (whether legally sustainable or not) hasprevailed and been recognised by our courts during a long seriesof years is not open to controversy.”
These cases clearly establish that the Queen's Advocate was arepresentative of the Crown and that his appearance in court as aparty was nothing but as such representative, particularly in acivil action.
Mr. Jayewardcne addressed us on the various changes in theConstitution that took place from time to time. He referred us tothe Report of the Special Commission on the Constitution (1928)under the Chairmanship of Rt. Hon. The Earl of Donoughmore.At page 70 of this Report under the heading "The Attorney-General" the Commissioners have examined the position of LheAttorney-General and made certain recommendations. Havingearlier dealt with the Treasurer, the Report states as follows:
"In the same way the Attorney-General will be the LegalAdviser to the Government with the full status of Minister,and so able to participate in the deliberations of the Board
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of Ministers and of the Council. He will be responsible foradvising the Heads of Departments and the Executive Committeeon such matters as may be referred to him, as for example theexamination of contracts and the preparation of legal documents.
We would recommend that inorderthatthe Attorney-General'sduties may be satisfactorily fulfilled special attention would bepaid to the staff of his department which has been criticised a'second bottle neck' not less effective than that of theSecretariat in obstructing the free flow of public business."
The Soulbury Commission Report at page 107 had the followingrecommendation in regard to the Attorney-General — 401:
"We have already recommended above that the Attorney-General should be charged with the duties now carried out bythe Legal Secretary under this heading. We envisage that, underthe Constitution we recommended. Ministers will require legalassistance in (a) the day-to-day running of their departments,
the passage of Bills through Parliament, especially at theCommittee stage, (c) the interpretation of existing iaw and indepartmental matters which may involve legal proceedings, and{d) matters of high constitutional policy, on which the Cabinetas such may require advice."
Thu Ceylon {Cuusiilulion) Older in Council 1046 {Chapter 379,Revised Legislative Enactments) .in Part Mi which came intooperation on 5th July, 1947, provided in section 33 that beforethe Speaker certifies a Bill passed as a Money Bill he shall consultthe Attorney-General or Solicitor-General and in section 34 (2)provided that before the Speaker certifies that any other Bill waspassed he shall consult the Attorney General or the Solicitor-General. Section 60 provided that the appointments, transfers tothe office of Attorney-General shall be made by the Governor-General.
In terms of the provisions of section 6 of the Ceylon(Constitution) Order in Council of 1946 which was theConstitution in force before Ceylon became a Republic on 22ndMay, 1972, the Attorney-General was a Public Officer appointedby the Governor-General to the Public Service.
The proviso to this section provided the 'transfer' in regard tothe Attorney-General by the Governor-General means a transfer
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involving an increase in salary.
He was the chief prosecutor for the Crown at the time and allindictments in criminal cases against accused persons were underhis name. As chief prosecutor he was the Director of all Crownprosecutions and in his discretion exercised the fiat of enteringnolle prosequi. In non-summary proceedings before Magistrates,he gave instructions to Magistrates as regards the conduct of cases.Thereby he had quasi-judicial powers. In the case of The Attorney-General v. Don Sirisena (15) decided in 1968, H. N. G. Fernando,C.J. held:
"Our Law has, since 1883 if not earlier, conferred on theAttorney-General in Ceylon powers directly to bring an allegedoffender to trial before a Court, to direct a Magistrate who hasdischarged an alleged offender to commit him for trial and todirect a Magistrate to discharge any offender whom he hascommitted for trial. These powers of the Attorney-Generalwhich have commonly been described as quasi-judicial, havetraditionally formed an integral part of our system of CriminalProcedure, and it would be quite unrealistic to hold that therewas any intention in our Constitution to render invalid andillegal the continued exercise of those powers."
The Supreme Court held that the exercise by the Attorney-General of powers under section 391 of the Criminal ProcedureCode was not an interference with the powers of a court andtherefore did not constitute an infringement of the principle ofthe Separation of Powers recognised in the Constitution of Ceylon.No appeal from an acquittal in a criminal case was possiblewithout the sanction of the Attorney-General. Even in the case ofprivate prosecutions the sanction of the Attorney-General wasnecessary before an appeal against an acquittal was filed.
In civil cases he become the defendant whenever theGovernment, Government Departments or Minister of State weresued as defendants. Under Parliament (Powers and Privileges) Act,No. 21 of 1953, it was the Attorney-General who initiatesproceedings. (The Attorney-General v. £ P. Samarakkody andW. Dahanayake (16).
When the Republican Constitution of 1972 came into operation,there was hardly any difference in the actual position of theAttorney-General. He remained a State officer in terms of section
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108 of the Constitution. He continued as the Chief Legal Adviserto the Government
Under this Constitution however he had a Director of PublicProsecutions to carry out State prosecutions, but this officerfunctioned under him. The Attorney-General was given additionalfunctions. He was required to examine every Bill introduced inParliament for any contravention of the provisions of theConstitution. He was empowered to institute proceedings beforethe Constitutional Court and defend the point of view of theGovernment He was entitled to express his opinion on Bills tabledin Parliament. This provision was a novel provision written intothe Constitution and a heavy responsibility was cast on the singleindividual who was a State officer but not a politician, policymaker or draftsman. He had to act independently. This gave hima very important and responsible role in the legislative process.
The Constitution of tho Republic of Sri Lanka (Ceylon) wasadopted and enacted on the 22nd May, 1972. By Article 3,sovereignty was declared to be in the people. This sovereignty
was to be exercised through the National State Assembly and the
National State Assembly was the supreme instrument ot Statepower. Article 53 provided for the duties of the Attrorney-Genera!in regard to the examination of Bills passed and for the
u:-+.u~aco/1
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provided that the Attorney-General had the right to be heard onall matters before the Constitutional Court. The Attorney-Genera!was appointed by the President Even under that Constitution theAttorney-General held a very important place and was theprincipal Law officer of the Republic and adviser to the State.
The provisions of the present Constitution of the DemocraticSocialist Republic of Sri Lanka (1978) vis-a-vis the Attorney-General have to be examined in order to determine the veryimportant role the Attorney-General now plays in the exerciseof the Executive, Legislative and Judicial powers that have tobe exercised in relation to the sovereignty of the People after thedisplacement of the Crown.
Mr. H. W. Jayewardene stressed that the office of Attorney-General was a very exalted and high office and the holder of suchoffice had corresponding obligations and duties to the Executive,to the Legislature and the Judiciary, that is, to the State. His
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rights of audience in Court could not be considered merely fromthe point of view that he is an attorney-at-law. He drew ourattention to the provisions of the Constitution of the DemocraticSocialist Republic of Sri Lanka (1978). He referred to Chapter IXwhich dealt with the Executive under the sub-head "PublicService".
Article 54 reads as follows:
"The President shall appoint all public officers required bythe Constitution or other written law to be appointed by thePresident, as well as the Attorney-General and the Heads of theArmy, the Navy, the Air Force and the Police Force."
The officers so appointed become full-time members of the PublicService.
Thus the Attorney-General was an instrument by which theExecutive Power was exercised by the President under theConstitution. He was the Head of a department, and was theprincipal Law Officer of the State.
Article 129 (1) of the Constitution provided for the Presidentof the Republic when it appears to him that a question of law orfact has arisen or likely to arise of public importance, he couldinvoke the consultative jurisdiction of the Supreme Court Interms of Article 134 the Attorney-General has a right to be heardin the Supreme Court in the exercise of its jurisdiction underArticle 129 (1).
Chapter XI, Articles 70-81 which dealt with the Legislatureunder the heading "Procedure and Powers" refer to certainimportant duties and powers given to the Attorney-General. Thelegislative power of the People is exercised by Parliament andthese provisions made him an instrument used in the exercise ofthis power. Article 77 makes it obligatory on the Attorney-General to examine every Bill for any contravention of therequirements of paragraphs 1 and 2 of Article 82 and for anyprovision which cannot be validly passed except by a specialmajority. The duties of the Attorney-General are clearly spelt outin Article 77 and he has a duty to communicate his opinion to thePresident and also to the Speaker. He has therefore of necessity tobe available at all times to perform these duties.
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Chapter XVI deals with Superior Court—Articles 118 to 147.Article 134 gives the Attorney-General the right to be heard in theSupreme Court in the exercise of its jurisdiction under Articles120 to 126, 129(1} and 131. The Judicial Power of the Executiveis exercised by Parliament through the courts created andestablished or recognised by the Constitution or created orestablished by law. The Attorney-General thus became theinstrument used in the exercise of this power.
On an examination of these provisions it is clear that theAttorney-General holds a unique position endowed with widepowers, onerous duties and special rights in regard to mattersinvolving the exercise of the Sovereignty of the People under thethree limbs—
Executive Power of the People ;
Legislative Power of the People; and
Judicial Power of the People.
The significance of this fact is that, unlike in England where theQueen is the Sovereign, in the Republic of Sri Lanka, Sovereigntyis in the People in terms of Article 3 of the Constitution and theAttorney-General represents and acts for the People of theRepublic.
The Attorney-General is the principal Law Officer of the State,lie is assisted by the Solicitor-General who is subject to hisauthority. He is the Head of a Department staffed byattomeys-at-law and members of the Administrative Service in thefull-time employment of the State. He is responsible for the legaladvice given to the Government and, it is to his Department, thatGovernment Departments turn for advice on matters of particulardifficulty or of political or national importance. His Department isconsulted by Statutory Bodies or Corporations like the LandReform Commission itself, who act on that advice so received.These attorneys-at-law attached to his Department had beenappointed as full time employees on a salary basis.
Apart from the duties and powers granted to him by theConstitution itself, the Attorney-General exercised the majority ofhis functions in a quasi-judicial manner and without regard topolitical consideration of any kind whatsoever. Under theJudicature Act, No. 2 of 1978, under section 11, the Attorney-
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General could determine the High Court in which atrial could beheld, section 15 gives the Attorney-General the right of appeal incriminal cases, section 47 gives him power to decide the court orplace at which an inquiry or trial of any criminal offence shall betransferred, section 51 gives the Attorney-General powers to electthe court for the prosecution of a criminal case.
The Criminal Procedure Act, No. 15 of 1979, imposes specificduties and grants very wide powers to the Attorney-General.Under section 142, he could give directions to Magistrates. Innon-summary inquiries under Chapter XV the Attorney-Generalhad been given the sole right of the presentation and service ofindictments. Section 191 (1) provides that the Attorney-Generalshall be entitled to appear and conduct the prosecution in aprosecution in the Magistrate's Court in summary cases. Undersection 191 {2} the Attorney-General shall not appear in a casefiled against a State employee without his consent Section 193provides that in any trial in the High Court, the prosecution shall beconducted by the Attorney-General or the Solicitor-General or byan appropriate appointee of the Attorney-General.
The Civil Procedure Code, No. 20 of 1977, Chapter! V, section 456provides that ail civil actions by or against the Crown (State)shall be instituted by or against (as the case may be) theAttorney-General. Section 456(3) specially provides that theAttorney-General in this section does not include theSolicitor-General or any Crown Counsel. The fact that theAttorney-General represents the Crown or State is made clear bythe provisions of section 461 where actions could be filed againsta Minister, Parliamentary Secretary or Public Officer in respect ofan act purported to be done by him in his official capacity.
However, section 463 makes provision for the Attorney-Generalto make an appiication to Court to have his name substituted as aparty to the action, it is significant that when the Attorney-Generalundertakes the defence of the action against a Minister,Parliamentary Secretary or Public Officer, he has to become aparty to the action. By Act No. 48 of 1954 in section 463 thewords 'government undertakes' were substituted to read'Attorney-General undertakes'.Therefore he appears in court as
the Attorney-General and not as a pleader on for or on behalf ofthe party concerned.
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From an examination of all these provisions, I am of the viewthat the Attorney-General is the full-time Head of a Departmentof the Executive, that he has special duties and obligationstowards the Legislature and specified duties and obligations to theJudiciary which latter duties bring him close to the JudicialOfficers.
Mr. Pasupathy in reply to the preliminary objection so takenre-iterated his position that he was an attorney-at-law entitled torepresent any party to a proceeding and had the right of audiencein any Court, Tribunal or other institution so long as he compliedwith the provisions of Article 169(12) and that he was appearingin his private capacity as an attorney-at-law with his othercolleagues who too were appearing with him in their privatecapacities instructed by Mr. P. K. T. Perera, the Legal Officer andemployee of the Land Reform Commission and that herepresented his client the Land Reform Commission in thatcapacity. He relied on Article 14 (1) (g) of the Constitution whichguaranteed to every citizen, inter alia,
"the freedom to engage by himself or in association withothers in any lawful occupation, profession, trade, business orenterprise."
He contended that the exercise and operation of his fundamentalright could only be subject to any restriction as may be prescribedby law in terms of Article 15 (5). He sought, to argue that the term'lav/ referred to therein had to be defined in terms of Article 170to mean –
"Any act of Parliament and any law enacted by thelegislature at any time prior to the commencement of theConstitution and includes an Order in Council".
He also argued that the term 'laW referred to in paragraph 15(7)includes regulations made under the law for the time being relatingto public security. He thereafter referred to the Rules andRegulations made by the Supreme Court under Article 136 ofthe Constitution and published in Gazette No. 9410 of 8.11.78and stressed that there was no restriction imposed on him by thoserules or regulations. Mr. Pasupathy was heard to state at somestage that he was appearing on a direction of the Head of theState. But he did not seem to rely heavily on such direction.
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If there was such a direction, he may have sought to intervene inthese proceedings as Attorney General. Having chosen to appearas a private attomey-at-law, he would have realised that thedirection he received did not justify his appearance in the way hedid.
He submitted that he was at liberty to decide for himselfwhether he should appear as a private attorney-at-law for his clientthe Land Reform Commission and that decision so to appear was amatter for him alone and could not be questioned in this CourtHe further submitted that this Court could not decide thepropriety of his appearance in this capacity. If there was a breachof any rule of professional etiquette or any departure from anyprofessional practice or discipline, that was a matter for inquiryby the Supreme Court. He contended that there was no knownlegal impediment for him to appear in his private capacity as anyother attomey-at-law.
He relied heavily on the expression of opinion of Bonser, C.J.in the case of Perera v. White (6). This was decided in 1900 andwas a case filed by Mr. White, the Acting Mayor of the MunicipalCouncil for damages for an alleged libel by one Mr, Charles Perera,a member of the Municipal Council. The matter came up beforethe Supreme Court on an ex parte motion filed by Mr. Whiterequesting the Supreme Court to apportion counsel to help himin his defence as several eminent counsel named in his affidavithad declined to appear for him. Bonser, C. J. characterised thisapplication as a mere speculative or a sporting application and thatthe application was one without precedent in the Island. Theopinion relied on is in these terms:
"it is said that the Acting Attorney-General thought itadvisable not to act for either party in view of his being a LawOfficer of the Crown. I do not quite see how his being a LawOfficer of the Crown is an impediment to his appearing in thiscase.
it may be that it is desirable that one of them should be freeto take an unprejudiced view so as to be able to advise thegovernment, but there is another Law Officer of the Crownand it does not appear that any application was made to him orto any of the Crown Counsel".
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The application was disallowed.
The case is no authority for the proposition that the Attorney-General could appear in a civil case between two private parties.Rather Bonser, C.J. had clearly adverted to the desirability that theLaw Officer should be free and unprejudiced in order to be able toadvise the Crown.
The other case relied on by Mr. Pasupathy was the case ofVettivelu v. Wijeratne (7). In that case the plaintiff had filed anaction against the petitioner who was a Village Headman forrecovery of damages in the District Court of Vavuniya CaseNo. 1281. In his answer the petitioner admitted that he demolishedthe house on the orders of the Government Agent as it was anunauthorised structure on Crown land. When the case came upfor trial Crown Counsel moved to appear for the defendantinstructed by Mr. Swaminather, Proctor, in terms of section 461of the Civil Procedure Code. Counsel for the plaintiff objected.The objection taken was upheld in that the Attorney-Generalhad not made an application to undertake the defence. CrownCounsel then moved to appear for the defendant in his personalcapacity as an auvocate of the Supreme Court. The District Judgedisallowed that application as well. An application was made tothe Supreme Court to revise both orders of the District Judge. K.
D. cie Silva. J, held that both ord?!5 were cleaily irregular anoillegal and that—
"an Advocate has the right of audience in any court in whichhe has the right to appear. That right is in no way affected byreason of the fact that he happens to be an officer of theAttorney- General's Department
it is true that Law Officers and Crown Counsel do notgenerally represent parties in private litigation. But that is notfor the reason that they are unqualified to appear in those cases,but because of the conditions of service binding on them."
The learned Judge held further as follows:
"The fact that the Attorney-General had not made anapplication under section 463 of the Civil Procedure Codedoes not disentitle him from assigning Crown Counsel to appearfor a defendant who is a Public Officer.
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The learned Deputy Solicitor-General stated from the Barthat when public officers are sued in tort the Crown does nottake up their defence, but the Attorney-General instructs aCrown Counsel to appear for them."
No objection could be taken to that practice".
Mr. H. W. Jayewardene, Q. C. in reply did not challenge thejudgement of the Supreme Court in this case (7), but stated thatcase clearly indicated that Crown Counsel appearing under thesecircumstances in accordance with the long established practice wasdifferent from the Attorney-General personally appearing as aprivate attorney-at-law. K. D. de Silva, J. did accept the positionthat Law Officers and Crown Counsel do not generally representparties in private litigation not for want of a right, "but because ofconditions of service binding on them" The Attorney-General andthe Solicitor-General were the only two Law Officers, that thelearned Judge could have had in view and if their duties andconditions of service are such as to keep them away front privatelitigation it is not a deprivation of their right of audience in acourt of law but a constraint attached to their office.
Mr. Pasupathy also relied on section 41 (1) of the JudicatureAct, No. 2 of 1978, in regard to right of representation on thebasis that he was an attorney-at-law.
"41 (1) Every attorney-at-law shall be entitled to assist andadvise clients and tp appear, plead cr act in every court or otherinstitution established by law for the administration of justiceand any person who is a party to or has or claim to have a rightto be heard in any such court or other institution shall beentitled to be represented by an attorney-at-law."
This provision no doubt covers all attorneys-at-law, but thequestion docs arise whether the AttorneyrGenera! as Law Officercould have only the State as his client In that event, he is entitledto assist and advise the State as his client and appear, plead and actfor the State only as Attorney-General and not as a privateattorney-at-law.
Mr. Pasupathy referred us to the case reported of TheAttorney-General v. Saibo (17). This was a case in which costswere decreed payable to the Crown. The Crown Proctor submitteda Bill of Costs which contains items for costs payable to Crown
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Counsel for advising the appeal, retainer brief fee and fees forappearance. The Registrar rejected these items as not incurred byCrown Counsel. The Attorney-General appealed to the SupremeCourt. The Supreme Court held when the Crown comes into courtas a successful litigant and asks taxation of its Bill of Costs it mustbe taken to have submitted to the rules of practice prescribed forthe exercise of that branch of the jurisdiction of the Courts towhich it appeals. In that case there is a reference to an earlier casedecided in 1906, Le Mesurier v. The Attorney-General (18) thatwhere the Attorney-General employs Crown Counsel to appear onbehalf of the Crown and disburses nothing and incurs no debt byway of fees, he is not entitled to charge the opposite party suchfees as he might reasonably have had to pay for the services of aprivate advocate, had he chosen to engage one. In that case there isa reference to the practice that when Crown Counsel appear forthe Crown and costs are awarded and recovered, they are paid tothe particular Crown Counsel for his services thus rendered, butif costs are not awarded or recovered, Crown Counsel gets nothingfor his services beyond his regular official salary. This is whatLascelles, C, J. stated in the case of Attorney-General v. Saibo(supra) :
"Before the decision in Le Mesurier v. The Attorney-General(supra) it appears to have been the invariably practice to allowon taxation fees of the Attorney-General, Solicitor Generaland Crown Counsel, but the practice never received judicialsanction.
These officers up to the date when their salaries wereadjusted on a sterling scale were allowed to retain their feeswhen recovered.
From that date officers of the Attorney-General's Departmentwho were in receipt of a sterling salary were prohibited by theGeneral Orders of Government from retaining any fees paid inrespect of their services and their fees if allowed were payableto the Public Treasury."
In this case, however, the Supreme Court adopted the passageof Wendt, J. :
"An alteration in the destination of these fees, whenrecovered, might perhaps have obviated the objection to theirallowance. I do not see that any exception could be taken to
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the practice of the Crown paying yearly salaries to counsel fordoing its work in court; and it would be reasonable enoughthat the Crown, when successful should recoup itself byrecovering from its opponent a fair fee for the work done. Butin such a case the fee must go to the Crown, and not directlyinto the pocket of the advocate engaged in the case/'
These cases do not support the contention of Mr. Pasupathy inany way as they dealt with the appearance of his officers in theirofficial capacity.
At the argument Mr. Pasupathy submitted a list of casesreported in Supreme Court Circulars 1881-1883 and 1889-1891,from the New Law Reports up to 1915 where there have beenappearances of the Queen's Advocate, Attorney-General andSolicitor-General in civil cases. But all these cases belong to anera prior to the imposition of special duties and rights to theAttorney-General and the Solicitor-General.
Having argued that he was entitled to appear for a privateperson as an attorney-at-law, he next took up the alternativeposition that the Land Reform Commission, though a statutorybody, was an agency of the State and that therefore he could havethe same relationship of lawyer and client with such an agency asthe interests of the State were involved.
He cited the Supreme Court judgment dated 10th September,1979, in Election Petition Appeal No. 1 of 1979, the GalieElection Petition case (2). In that case the Supreme Court afterconsidering the constitution, activities and functions of thePetroleum Corporation which carried on monopolistic commercialtransactions for the State held that it was an agent of the State.
The Land Reform Commission is, however, a statutorycorporation created by the Land Reform Law, but was notsimilar to the Petroleum Corporation in any way and was not anagency of the State. It had it own legal department withAttorneys-at-law as its full-time employees as its advisers. Thisconten:ion would however, have been plausible if he appearedas Attorney-General.
The courts in this country have consistently followed thepractice of the English Bar. The two main divisions of the
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profession are the Judges (the Bench) and the lawyers. Thereforeany matter that is raised in regard to the legal profession, is amatter that effects both divisions. The primary function of theprofession is to apply and utilise the law in specific cases, in short,to individualise the law. This function is manifest in the work ofthe lawyers and the Judge in the court room. Ordinarily thelawyer is retained by one side only (for a client) and necessarily ispartisan. The adversary system of the administration of the lawunder which lawyers zealously represent sides involves the use ofsuch partisan representatives to bring out the truth and to achieveequal justice under the law. A lawyer has thus several loyalties, aloyalty to his client, to the administration of justice, to thecommunity of his associates in practice and to himself whether tohis reasonable economic interests or to his ethical standards as aman and as a member of the profession governed by its ownailes. In this context I do not think the Attorney-General couldstep down into the arena of private or partisan representation in acivil case, leaving his duties, loyalties and obligations to theRepublic aside even for a while, when his office as Attorney-General demands the devotion of his entire time to the interestsof the Peopie,
Mr. H. W. Jayewardene, Q.C. contended that the appearance ofthe Attorney-General would offend against the glorious rule thatj;jmhjv[ nul uniy bs liony but. must r?iso sppffsr tr> h® oorss=argued that considerations of public policy should prevent theAttorney-Genera! representing private persons. The Attorney-General by virtue of the office he holds is the representative not ofan ordinary party to a controversy but of the Sovereign and nowof the Sovereignty of the People enshrined in the Constitution, aSovereignty, whose obligation to govern impartially, is ascompelling as its obligation to govern at all. The Attorney-General'sonly client is this Sovereignty, the Republic. The Constitutionof the Republic has vested in him very important and exclusiverights and duties to act as such representative. Various statuteshave imposed duties in regard to the prosecution for offences,the right of representation in Courts on behalf of the State andquasi-judicial functions in relation to High Courts and MagistratesCourts. Thus as far as the Attorney-General is concerned he hasbeen given an exclusive privilege to practise as an attorney-at-lawwithin certain circumscribed limits and within these limits hisfundamental rights are unaffected.
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The two principal law officers of the State have been and stillare the Attorney-General and the Solicitor-General but under thepresent Constitution unlike in the 1946 Constitution, theAttorney-General has alone been given certain specific powers andduties. No doubt the Attorney-General, the Solicitor-General andthe other law officers are the legal representatives and advisersof the State. As in England here too the Attorney-General isprimarily an officer of the State and is in that sense an officer ofthe Public.
Mr. H. W. Jayewardene, CLC., cited Halsbury's Laws of England,4th Edn., Vol. 8, p. 1274, where it is stated that neither theAttorney-General nor the Solicitor-General may engage in privatepractice.
In reply to that Mr. Pasupathy in a written submission referredus to Vol. 3, Halsbury's Laws of England, 4th Edn., paragraph1125, note 3, where it is stated that the Attorney General and theSolicitor-Generai in England may not undertake any business onbehalf of a private client (Treasury Minute dated 5th July, 1895).The fact that this prohibition is based on a Treasury Minute a3 farback as 1895 would indicate that the State wanted their servicesfor itself while being in the employment of the State. However,paragraph 1126 deals with other offices the holding of which isdeemed to ho inconsistent with practice as a barrister and at page594 according to note 11, a "practising barrister7' means a barristerwho is entitled to practice and who holds, himself out as ready todo so not being otherwise employed in a whole timeoccupation."
The various judgments of the Supreme Court also referred toenvisage the limitations in regard to the Law Officers by virtue ofthe conditions of service binding on them. I
I have given my anxious consideration to the question raised byMr. Jayewardene, Q.C., that it is within the competence andjurisdiction of this Court to decide whether any person couldbe permitted to appear and Mr. Pasupathy's contention that thisCourt had no such jurisdiction. It cannot be disputed that if anattomey-at-law is not properly attired according to the rulesframed by the Supreme Court, this Court could refuse to see orhear him. If it is brought to the notice of the court that theattomey-at-law who has noted his appearance, if proved to be
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one struck off the roll, this court could refuse to hear him. Thusthe court has an inherent jurisdiction to see that procedings beforeit are regularly conducted.
The objection here is not one of enrolment or removal of anattorney-at-law which is within the exclusive jurisdiction of theSupreme Court as laid down in section 42 of the Judicature Act,No. 2 of 1979. The objection that has been raised relates to themarking of an appearance as a private attorney-at-law in thisparticular case by the holder of the office of Attorney-General.
Mr. H. W. Jayewardene, Q.C., jeferred us to the case ofO'Toole v. Scott (8) 242 and 243. Lord Pearson referred toseveral cases and held that the general principle was that, subjectto usage or statutory provisions. Courts or Tribunals may exercisea discretion whether they will allow any, and what persons, to actas advocates before them.
I have examined the office of Attorney-General, his powers andduties in detail and come to the conclusion that he is anattorney-at-law employed in the Public Service as a full-timeemployee of the Republic. I have come to the further conclusionthat the exercise of his fundamental right to practise as any privateattorney-at-law has been voluntarily surrendered by him by hisacceptance of the office of the Attorney-General under theRepublic which office by its very nature prevents him fromundertaking any business on behalf of private clients. This officeis one that could be deemed to be inconsistent with the practiceof an attorney-at-law for clients generally. An attorney-at-lawcould elect to practise his profession, he could be a member of theprofession and elect to serve as a Judge or as an officer of thePublic Service. But if he elects to practise his profession he mustmake it his primary occupation and must refrain from engagingin any other full-time occupation. It is for that reason that inEngland a distinction was made between barristers who areentitled to practise and practising barristers. A practising attorney-at-law, like his counterpart in England, the 'practising barrister'could only mean an attorney-at-law who is not only entitled topractise but also one who holds himself out as ready to do so, notbeing otherwise employed in a whole time occupation. Accordingto note 11 at page 1110, 3 Halsbury's Laws of England, 4th Edn.even a barrister employed in the regular occupation as an editor orreporter of a series of Law Reports for the use of the legalprofession was categorised as a non-practising barrister.
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Examined from that point of view, the provisions of section41(1) of the Judicature Act which provides that any attorney-at-law shall be entitled to assist and advise clients and to appear,plead in every court or other institutions established by law forthe administration of the law contemplate an attorney-at-law-
fa) who is entitled to practise; and
(;b) who holds or could hold himself out as ready to do so notbeing otherwise employed in a whole-time occupation.
If it is brought to the notice of the Court that a particularattomey-at-law is one who cannot be termed a practisingattomey-at-law, then the Court could in the exercise of itsinherent powers, rule that such an attomey-at-law could not beheard in the capacity he chooses, outside the scope and ambit ofhis whole time occupation, though he may be otherwise qualifiedas an attomey-at-law. In this case Mr. Pasupathy cannot complainthat he is being denied the exercise of his fundamental rightsunder Article 14(1) (gr) as he was not appearing as Attorney-General. if he had appeared as Attorney-General he could havebeen permitted to appear as such on that basis, as there he wasentitled to engage in his lawful occupation as the Attorney-Genera! of the Republic.
It was contended by Mr. Pasupathy that there was no legalimpediment or prohibition to his appearing in Court in his capacityas an ordinary attomey-at-law. It is to be noted that there is nolegal prohibition in law cited to us prohibiting him appearingin that capacity for a complainant or accused in cases before thecourts exercising criminal jurisdiction. But there is an impliedprohibition, by reason of the administrative functions imposedon him by the law, where his certificate or fiat is necessary beforeproceedings in some prosecutions or where the prosecution hasto be instituted with his consent or by him as Attorney-General.He could give directions in regard to the Court in which a case isto be tried. These are constraints arising from the very natureof his functions and duties in regard to proceedings in the criminalcourts. Similarly in proceedings before civil courts, where theState or its members or officials are sued or where the State sues,he appears as a party. Under Article 125 of the Constitution(1978) dealing with any question relating to interpretation of theConstitution—
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"whenever any such question arises in the course of anyproceedings in any court or tribunal or other institutionempowered by law to administer justice or to exercise judicialor quasi-judicial functions, such question shall forthwith bereferred to the Supreme Court for determination."
In such an event it is the Attorney-General who shall be noticedunder Article 134 and shall have the right to be heard in suchproceedings. Therefore if the holder of office of Attorney-Generallays aside his mantle of office, whenever he decides to do so, andadvises private clients and descends into the arena of partisanlitigation in the criminal or civil courts, his appearances as aprivate attorney-at-law are not consistent with or are incompatiblewith the duties imposed on him by the Constitution.
The Attorney-General, as the Law Officer of the Republicrepresenting the People, is in a very special position and is not likeany other attorney-at-law. In the eyes of the lay public, whichknows little of the prerogative rights of the Sovereignty vested inthe People, when the holder of the office of Attorney-Generalappears in a different capacity, serious doubts could arise instantlywhether or not there is a fair hearing. The right of a fair hearingis at the root of the sound and equitable administration of theLaw.
The same constraints mal apply to those who are holders ofjudicial office or who hold full-time public office have beentraditionally accepted as equally effective as prohibitions by law.Such attomeys-at-law cannot claim rights under section 41 (1) ofthe Judicature Act, as by virtue of their conditions of service theycannot possibly be available to assist and advise clients generallyor even to appear for them. The Attorney-General has beenemployed only to advise and appear for the Republic. It willindeed be a sad day in the annals of the administration of juticein this country, if the holder of the office of Attorney-Generalspends his time assisting and advising private individuals or bodiesand not being available to the People in the discharge of his dutiesto the Executive, the Legislature and the Judiciary.
Having examined all these circumstances, I have come to theinevitable conclusion that Mr. Pasupathy is not entitled to appearin this Court as a private attorney-at-law in these essentially civil
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proceedings while still being the holder of the office of theAttorney-General of the Republic.
I therefore uphold the preliminary objection.
Preliminary objection upheld.