RATNASIRI PERERA v. DISSANAYAKE ASSISTANT COMMISSIONER OF CO-OPERATIVE

031-SLLR-SLLR-1992-V-1-RATNASIRI-PERERA-v.-DISSANAYAKE-ASSISTANT-COMMISSIONER-OF-CO-OPERATIVE-.pdf


RATNASIRI PERERA '
v.
DISSANAYAKE, ASSISTANT COMMISSIONER OF CO-OPERATIVEDEVELOPMENT AND OTHERS
SUPREME COURT,
BANDARANAYAKE, J„
M. D. H. FERNANDO, J. ANDAMERASINGHE, J.
S.C. REFERENCES 1 to 17/91 (Consolidated)
C.A. APPLICATIONS 1060/85, 713/83, 1528/83, 1373/82, 1069/84, 27/84, 32/84,1006/84,1068/84,1267/84,1666/84, 1623/84,32/85, 62/85,559/85, 344/85,976/8531 JULY AND 01 AUGUST, 1991.
Judicial Power – Does arbitrator appointed by the Registrar of Co-operativeSocieties under Section 58(2) of the Co-operative Societies Law, No. 5 of 1972exercise judicial power ? – Has appointment to be made by the Judicial ServiceCommission in terms of Article 114(1) of the Constitution ? – Are the words“Judicial Officer" appearing in Article 170 applicable in construing the provisionsof Article 114(1) ?- Can an appointment and/or order of an arbitrator appointedunder the Co-operative Societies Law be questioned in a court of law ? -Constitution, Articles 4(c), 114, 168(1) and 170 – Interpretation Ordinance,Section 16(1) – Co-operative Societies Law, Section 58(2) – Rule 49(v) of the Co-operative Societies (Special Provisions) Act, No. 34 of 1970.
Acting under section 58(2) of the Co-operative Societies Law, No. 5 of 1972, theRegistrar of Co-operative Societies referred certain disputes falling within S. 58(1)(c) of the said Law for arbitration. Parties aggrieved by the awards of sucharbitrators or by the decisions of the Registrar on appeal, made applications tothe Court of Appeal for orders in the nature of writs of certiorari. The followingquestions which arose in the course of the hearing of those applications werereferred by the Court of Appeal to the Supreme Court, under Article 125 of theConstitution.
Does an arbitrator appointed by the Registrar of Co-operative Societies interms of Section 58(2) of the Co-operative Societies Law, No. 5 of 1972 fallinto the category of court, tribunal or other institution exercising judicialpower under Article 4(c) of the Constitution ?
Has the appointment of the said arbitrator to be made by the Judicial ServiceCommission in terms of Article 114(1) of the Constitution ?
Is the interpretation of the words "Judicial Officer” appearing in Article 170applicable for the purpose of construing the provisions of Article 114(1) ofthe Constitution.?
In any event, can the appointment and/or the order of an arbitrator appointedunder the Co-operative Societies Law be questioned in those proceedings inas much as the said Law constitutes an existing law in terms of Article 168 ofthe Constitution ?
Held:
The Registrar is an institution exercising judicial power within the meaning ofArticle 4(c) and an arbitrator appointed by the Registrar is a part of suchinstitution.
No.
Article 170 cannot apply in its entirety to Article 114, because theappointment and dismissal of Judges of the Superior Courts and the HighCourts is (by virtue of Articles 107 and 111) outside the purview of theJudicial Service Commission. The words "other than in Article 114” occurringin Article 114 could mean either that the definition is totally inapplicable toArticle 114 or that it is inapplicable only to the extent that the contraryprovision is made to Article 114(5). Clearly the latter is the correct position.
To hold otherwise would mean that “Judicial Officer” in Article 114 isundefined; it would open the door to the argument that this phrase should belimited to those who hold office as District Judges, Magistrates and otherJudges traditionally so regarded, which was decisively rejected both inSenadhira (6), by Sansoni J., (as he then was) who held that that phraseincluded not only the officers of the established courts but also those akin tothem and in Ranasinghe (3), by the Privy Council. The definition of "judicialofficer’’ in Article 170 applies to Article 114(1) save as otherwise expresslyprovided in Article 114(6) : in relation to Article 114(1) that definition willapply With the omission of the words “a Judge of the Supreme Court or aJudge of the Court of Appeal or any Judge of the High Court”.
4. No.
Cases referred to:
KarunatiHake v. Abeyweera (1966) 68 NLR 503,504-5.
Jayasekera v. Minuwangoda Co-operative Society (1970) 73 NLR 354, 355,356.
Bribery Commissioner v. Ranasinghe (1962) 64 NLR 449; (1964) 66 NLR 73,74 (PC).
R. v. Liyanage (1962) 64 NLR 313,359.
Liyanage v. The Queen (1965) 68 NLR 265,281,283, (PC).
Senadhira (1961) 63 NLR 313.
Don Anthony (1962) 64 NLR 93.
Piyadasa (1962) 64 NLR 385.
Jailabdeen v. Danina Umma (1962) 64 NLR 419,420,421.
Ibrahim v. G. A. Vavuniya (1966) 69 NLR 217.
Anthony Naide (1966) 68 NLR 558,570.
Walker Sons & Co. Ltd. v. Fry (1965) 68 NLR 73.101.
Moosajees v. Fernando (1966) 68 NLR 414,418,424.
Panagoda v. Budinis Singho (1966) 68 NLR 490.
Xavier v. Wijeyekoon (1966) 69 NLR 197.
Ranaweera v. Wickramasinghe (1961) 72 NLR 553, 558.
Visuvalingam v. Liyanage (1983) 1 Sri L R 203,216,217.
Shanmugam v. Commissioner of Registration of Indian and PakistaniResidents (1962) 64 NLR 29,33.
Gunaseela v. Udugama (1966) 69 NLR 193.
REFERENCE to the Supreme Court under Article 125 of the Constitution by theCourt of Appeal.
Sanath Jayatilleke for the petitioner in No. 1/91.
Kithsiri Gunaratne with Miss S. M. Senaratne and Saliya Mathew for the petitionersin Nos. 2/91 and 3/91.
J.C. Boangeior the petitioner in Nos. 5/91 to 15/91 and 17/91.
Rohan Sahabandu for the petitioner in No. 16/91.
K.C. Kamalasebayson, SSC with K. Siripavan, SSC and K. Indatissa, SC for theDeputy/Assistant Commissioner of Co-operative Development in Nos. 1/91 to17/91.
Bimal Rajapakse for the Respondent Societies in Nos. 1/91, 8/91, 14/91 and15/91.
H. D. Gomes for the Respondent Societies in Nos. 2/91 and 3/91.
T. M. S. Nanayakkara for the Respondent Society in Nos. 13/91,16/91 and 17/91
Curadvvult.
27th March, 1992.
M. D. H. FERNANDO, J.
Section 58 of the Co-operative Societies Law, No. 5 of 1972,provides:
“58(1) If any dispute touching the business of a registeredsociety arises…
(c) between the society or its committee and any cffb::employee of the society, whether past or present, crany heir or legal representative of any deceasedofficer or employee; or
such disputes shall be referred to the Registrar fordecision.'
The Registrar may, on receipt of a reference undersubsection (1)-
decide the dispute himself, or –
refer it for disposal to an arbitrator or arbitrators.
Any party aggrieved by the award of the arbitrator or
arbitrators may appeal therefrom to the Registrar…"Rule 49(v) of the Co-operative Societies Rules, 1974, requires anarbitrator to be appointed by the Registrar.
Acting under section 58(2), the Registrar of Co-operative Societiesreferred certain disputes for disposal to arbitrators. It was agreed, forthe purpose of these references, that these disputes fell withinparagraph (c) of section 58(1). Parties aggrieved by the awards ofsuch arbitrators, or by the decisions of the Registrar on appeal, madeapplications to the Court of Appeal for orders in the nature of writs ofcertiorari. The following questions which arose in the course of thehearing of those applications were referred by the Court of Appeal tothis Court under Article 125 of the Constitution:
“1. Does an Arbitrator appointed by the Registrar ofCo-operative Societies in terms of Section 58(2) of theCo-operative Societies Law No. 5 of 1972 fall into thecategory of Court, Tribunal or other Institution exercisingjudicial power under Article 4(c) of the Constitution ?
Has the appointment of the said Arbitrator to be made bythe Judicial Service Commission in terms of Article 114(1) ofthe Constitution ?
Is the interpretation of the words “judicial officer” appearingin Article 170 applicable for the purpose of construing theprovisions of Article 114(1) of the Constitution ?
In any event can the appointment and/or the order of anarbitrator appointed under the Co-operative Societies Lawbe questioned in these proceedings in as much as the saidLaw constitutes an existing law in terms of Article 168 ofthe Constitution ?
The following constitutional provisions are. relevant:
Art. 4(c):The judicial power of the People shall be exercised by
Parliament through courts, tribunals and institutionscreated and established, or recognized,, by theConstitution, or created and established by Law …
Art. 114:(1) The appointment, transfer, dismissal and disciplinary
control of judicial officers, and (notwithstandinganything to the contrary in Chapter IX) of scheduledpublic officers, is vested in the (Judicial Service)Commission.
(6) In this Article … judicial officer does not include aJudge of the Supreme Court or of the Court ofAppeal or of the High Court.
Art. 168(1) Unless Parliament otherwise provides, all laws, writtenlaws and unwritten laws, in force immediately before thecommencement of the Constitution, shall mutatismutandis, and except as otherwise expressly provided inthe Constitution, continue in force.
Art. 170:“judicial officer", other than in Article 114, means any
person who holds office as –
a Judge of the Supreme Court or a Judge of theCourt of Appeal:
any Judge of the High Court or any judge, presidingofficer or member of any other Court of First Instance,tribunal or institution created and established for theadministration of justice or for the adjudication of anylabour or other dispute but does not include a personwho performs arbitral functions or a public officerwhose principal duty or duties is or are not theperformance of functions of a Judicial nature …
Section 58 corresponds to section 53 of the Co-operative SocietiesOrdinance (Cap. 124) which was considered by H. N. G. Fernando,
S.P.J., (as he then was), in Karunatillake v. Abeyweera(1>:
"… As between a society and its members, disputes can wellarise as to the construction and effect of the rules governingrelations between members inter se and the relations between asociety and its members, as to whether a society or a member
had acted in breach of the rules, as-to the qualification ofmembers to hold office in the society (etc) … It was clearly theintention of the Legislature that such disputes should be finallydecided by the Registrar, in the exercise of his supervisoryfunctions, or by arbitrators appointed by him. Disputed claimsby a society against its members, in their capacity as such,were also in contemplation, although it is arguable whetherSection 45 applied also to other claims against members, notarising by reason of their membership of a society, but arisinginstead upon transactions involving ordinary contractual rightsand obligations, or else arising in delict. Except in regard toclaims of the nature lastly mentioned, I have no doubt that thedetermination by the Registrar or an arbitrator of a disputeaffecting any of the matters just mentioned does not involve theexercise of the judicial power of the State.
An "officer" of a co-operative society is not necessarily in acontractual relationship with the society … But if in addition anofficer has custody or control of goods or funds of the society,or has power to negotiate contracts on behalf of the society,then contractual relationships, such as that between principaland agent, can exist between a society and its manager. In thisway disputes can arise as to the due performance ofcontractual rights and obligations. In the instant case … theliability of the manager arises at the least upon an impliedcontract, in the nature of agency. The dispute concerning theexistence of this liability and the duty to perform it is an ordinarycivil dispute within the traditional jurisdiction of the Courts. It isnot such a dispute as might, prior to the passing of the Act No.21 of 1949, have been determined under the special procedureprovided by the Co-operative Societies Ordinance. Theamending Act purported to oust the jurisdiction of the Courtsover disputes which at the time when the Constitution came intoforce were exclusively within that jurisdiction. In the language ofrecent judgments, there has thus been a clear encroachment ofthe powers exclusively vested in the Courts."
This decision was sought to be distinguished in Jayasekera v.
Minuwangoda Co-operative Society<2), on the basis that it applied
only to claims against an officer, and not to claims against a member;that such claims could have been referred to arbitration prior to the1947 Constitution; and that the reference of such claims toarbitrators, not appointed by the Judicial Service Commission (“theJ.S.C.”), continued to be valid. H. N. G. Fernando, C.J., held thatadjudication upon such claims against members did involve theexercise of judicial power:
When the Ceylon (Constitution) Order in Council of 1946 wasenacted there clearly was contemplation that pre-existingOrdinances did contain provisions which would conflict withprovisions of the Order in Council. Accordingly, s.88 of theOrder in Council authorised the Governor to makeProclamations amending, repealing or modifying written law inorder to bring such law into conformity with the provisions of theConstitution. Numerous amendments were in fact made inpursuance of this authority; but the fact that a particular writtenlaw was not thus amended cannot in reason have theconsequence that the law does not conflict with the Constitutionor that it must be regarded as valid despite such conflict.
A single instance suffices to make the position clear. Section54 of the Courts Ordinance, which formerly provided for theappointment of District Judges and Magistrates by theGovernor was altered by deleting the reference to theGovernor’s power of appointment. That alteration was made forthe quite obvious reason that the power of appointment ofjudicial officers was vested by the Constitution in the JudicialService Commission, and that the alteration was necessary toavoid conflict between s, §4 and the Constitution, But even if(by accident or deliberately) no such alteration had been madein s.54, the Governor would have ceased to be vested with thatpower when the Constitution came into operation. Thus themere fact that s.45 of the Co-operative Societies Ordinance wasnot amended by a Proclamation under s.88 of the Constitutiondoes not justify an argument that all its provisions continued tobe valid despite the fact that some of them were not inconformity with overriding provisions of the Constitution.”
It is common ground that here the disputes referred to arbitratorsarose from transactions with officers or members involving ordinarycontractual rights and obligations.
The cumulative effect of the contentions of learned Counsel whochallenged the validity of the appointment and the orders of theRegistrar and the arbitrators may be summarised thus:
In view of the aforesaid decisions, the resolution of thedisputes involved the exercise of judicial power;
Article 4(c) precluded the conferment of judicial power on theRegistrar and on arbitrators, who wpre not "institutions"created, established or recognised by the Constitution or byParliament;
Although Section 58(2) and Rule 49(v) were "existing law",within the meaning of the Constitution,
they had to be read mutatis mutandis (in terms of Article168(1)), necessitating the substitution of “Judicial ServiceCommission'' for “Registrar” in Rule 49(v); and
Articles 114 and 170 “expressly provided” (within themeaning of Article 168(1)) for judicial officers to beappointed by the Judicial Service Commission, so thatthe Registrar or an arbitrator could determine a disputeonly if appointed by that Commission under and in termsof Article 114.
Learned Senior State Counsel did not contend that the resolutionof the disputes did not involve the exercise of judicial power. Hisprincipal contention was that subsequent to the aforesaid decisions,Parliament had enacted the Co-operative Societies (SpecialProvisions) Act, No. 34 1970, with a two-thirds majority. That Actexpressly provided that it shall be as valid and effectual as though itwas a Constitutional amendment; that every power, duty and functionconferred and imposed on, and assigned to, the Registrar undersection 53 of the Co-operative Societies Ordinance, as amendedfrom time to time, was deemed to have been, and to be, validly
conferred, imposed and assigned; and that every arbitratorappointed by the Registrar, was deemed to have been, and to be,validly appointed. Therefore, he submitted, the exercise of judic alpower by the Registrar and arbitrators under section 53 of theOrdinance, despite want of appointment by the J.S.C., was madeConstitutionally proper. Thereafter the Co-operative Societies Law,No. 5 of 1972, repealed the earlier Ordinance and other statutes (seesection 73), but did not repeal Act No. 34 of 1970. Section 16(1) ofthe Interpretation Ordinance (Cap. 6) provides that where in anywritten law reference is made to any written law which issubsequently repealed, such reference shall be deemed to be madeto the written law by which such repeal is effected. Accordingly, theprovisions of Act No. 34 of 1970 applied to the 1972 enactment.Thus when Article 168(1) was enacted, it had been the law at leastfor the preceding 8 years that the Registrar and arbitrators couldexercise judicial power when acting under section 58 (or itspredecessor). Section 58(2), Rule 49(v) and Act No. 34 of 1970 werethus "existing written law”, kept in force by Article 168; theapplication of the mutatis mutandis principle did not requireappointment by the J.S.C.; and there was no “express provision ” inthe Constitution which repealed or modified those provlsi:Alternatively, he submitted thatjhe Registrar was a public cl: :.c.“whose principal duty or duties is or are not the performance- :!functions of a judicial nature”, and accordingly was not included Inthe definition of “judicial officer” in Article 170; appointment by thaJ.S.C. was not required.
Following Karunatiilekei]) and Jayasekera,<2) I hold that thedetermination by the Registrar or an arbitrator of disputes arisingfrom transactions involving ordinary contractual rights and obligationsinvolves the exercise of the judicial power of the People. The othercontentions arising in this case require this Court to consider (a) whatinstitutions created, established or recognised by the Constitution orby Parliament may exercise judicial power, (b) how the officers andmembers of such institutions should be appointed, (c) how suchappointments should be made when such institutions (or their officersor members) have mixed judicial and non-judicial functions, and (d)whether the position is different in regard to institutions establishedby laws enacted prior to the Constitution.
The relevant provisions of the 1978 Constitution were not enactedin vacuo, but in the background of the Constitutional provisions,judicial decisions and unsettled problems of the preceding threedecades, to which a brief reference is necessary. The Ceylon(Constitution and Independence) Orders-in-Council, 1946 and 1947,(the “1947 Constitution”), were interpreted in a series of decisions.
The 1947 Constitution did not expressly provide for a separation ofpowers and functions; "no express mention is made of vesting in thejudicature the judicial power which it already had and was wielding inits daily process under the Courts Ordinance”; however “there wasno compelling need … to make any specific reference to the judicialpower of the Courts when the legislative and executive powerschanged hands” (i.e. in consequence of the change of sovereignty'effected by the 1947 Constitution); “but the importance of securingthe independence of judges, and maintaining the dividing linebetween the judiciary and the executive” (and also, one should add,the legislature) “was appreciated by those who .framed theConstitution”. The structure of the Constitution and in particular theprovisions for the independence of Judges of the Superior Courtsand for the appointment of other judges by an independent JudicialService Commission “manifest an intention to secure in the judiciary afreedom from political, legislative and executive control. They arewholly appropriate in a Constitution which intends that judicial powershall be vested only in the judicature. They would be inappropriate ina Constitution by which it was intended that judicial power should beshared by the executive or the legislature. The Constitution’s silenceas to the vesting of judicial power is consistent with its remaining,where it had lain for more than a century," (i.e. under the Charter ofJustice, 1833, and the Courts Ordinance, 1889) “in the hands of thejudicature. It is not consistent with any intention that henceforth itshould pass to, or be shared by, the executive or the legislature",“there exists a separate power in the judicature which under theConstitution as it stands cannot be usurped or infringed by theexecutive or the legislature.” (Bribery Commissioner v. Ranasinghe.(3)R. v. Liyanage,<4); Liyanage v. The Queen(5)).
After some initial uncertainty, the nature of “judicial power" wasclarified: a historical test was also applied and judicial power was
held to include powers which, though administrative in nature, havetraditionally been ancillary to the judicial power, such as the power tonominate a Bench to hear a case (Liyanage,<4>).
In regard to Bribery Tribunals, whose members were not appointedby the J.S.C., in Senadhira,(6) it was not contested that the power totry, and to reach findings of guilt or innocence, could lawfully beconferred on such Tribunals; the only objection was that suchtribunals could not convict and sentence an accused, and thisobjection Sansoni, J. (as he then was), and T. S. Fernando, J. upheld.This was followed in Don Anthony,m though attracted by thecontention that in ascertaining and declaring the liabilities of anaccused such tribunals were in fact exercising judicial power, theCourt upheld a technical procedural objection and refrained fromdeciding that matter. In Piyadasa,m Tambiah, J., swept aside theprocedural objection, and went on to hold that no judicial power canbe conferred on Bribery Tribunals except by constitutionalamendment. The matter was finally resolved in two judgments ofH. N. G. Fernando, J., (as he then was). He held in Jailabdeen v.Danina Umma{S).
"There is nothing illegal, in the sense of conflict with theConstitution, in a statute which establishes a new judicialtribunal with jurisdiction (whether exclusive or not) overparticular charges or causes. Indeed the legislature might wellconsider it necessary in the public interest to constitute suchtribunals, and one can think of many reasons for the adoption ofsuch a course…
There is no provision in the Constitution restricting theestablishment of judicial offices and it follows that a BriberyTribunal to which persons are duly appointed in accordancewith the proper law can legally exercise all-the powers which theAct confers upon such a tribunal. But since a tribunal havingsuch powers is a judicial office, all that I find unconstitutional inthe Bribery Act is the power given to the Governor-General toappoint the panel from which members of such a tribunal haveto be constituted. The objection thus goes not to legal validity ofthe tribunal itself, or to the exercise of judicial power by it, but
rather to the right and authority of the persons constituting thetribunal to exercise the powers conferred by the Act”;
and in Rar>asinghe,(3)
”… there is no question of a wholesale challenge of the entireAct, that the Legislature can validly confer judicial power onspecially created tribunals, and that the objection which liesagainst a conviction by a particular Bribery Tribunal is that thejudicial power validly vested in the special tribunals cannot belawfully exercised .by persons who are appointed to the Tribunalby the Governor-General, and not by*the Judicial ServiceCommission.”
On appeal, the Privy Council – although dealing principally with theduty of the Court to look for the Speaker’s certificate to ascertainwhether the Constitution has been validly amended – was “in accordwith the view so clearly expressed by the Supreme Court that theorders made against the respondent are null and inoperative on theground that the persons composing the Bribery Tribunal which triedhim were not lawfully appointed to the Tribunal”.
These decisions recognised that the creation and establishmentby Parliament of courts, tribunals and institutions for the exercise ofthe judicial power of the State was not inconsistent with theConstitution or the principle of the separation of powers; all that wasconstitutionally necessary was compliance with constitutionalprovisions as to the manner of appointment of the officers andmembers thereof. These principles are now expressly entrenched inArticles 4(c), 114 and 170.-
It is necessary to consider whether the Registrar is an “institution"within the meaning of Article 4(c). This expression occurs in severalother provisions of the Constitution; e.g. Articles 105 and 156. It is notconfined to a body of persons, and will include an “institution”consisting of a single officer or member. Thus the Ombudsman, the.Commissioner of Elections, and the Public Trustee are “institutions”.The Registrar is also an “institution”. The numerous powers, dutiesand functions statutorily entrusted to the Registrar cannot be
exercised and performed by him single-handed. Hence section 2enables certain other public officers to exercise all or any of thepowers of the Registrar. Section 58 also permits the Registrar to refera dispute to an arbitrator (appointed by him in terms of Rule 49(v)).But since an appeal lies from the award of an arbitrator to theRegistrar himself, the scheme of that enactment is that the ultimatedecision of a dispute is by the Registrar. It is true that such anarbitrator may be appointed ad hoc, but he is nevertheless part of theinstitution created by that law. Article 4(c) does not preclude thecreation and establishment, or the recognition, of such an institution.Since the Co-operative Societies Law was enacted prior to theConstitution, the question also arises whether the Registrar is aninstitution “created and established”, or “recognised”, by theConstitution or by law, within the meaning of Article 4(c). Article105(2) provides that all institutions created and established byexisting written law for, inter alia, the adjudication of industrial andother disputes shall be deemed to be institutions created andestablished by Parliament. The Registrar is thus an “institution”deemed to be created and established by Parliament; and is also, byvirtue of Articles 105(2) and 168(1), “recognised" by the Constitution.
If created by a statute enacted after the Constitution, the questionwould arise whether an officer or member of that institution (a) failswithin the definition of “judicial officer”, within the meaning of Article170, and, if so, (b) must be appointed by the J.S.C. This would havehad to be determined solely by reference to Article 170. Prima facie,the Registrar would be an institution created and established “for theadjudication of any labour or, other dispute” within the meaning ofArticle 170, and would therefore be a “judicial officer”. However,having regard to the extent of the non-judicial statutory duties andfunctions of the Registrar under the 1972 Law, it is also clear that his“principal duty or duties is or are not the performance of functions ofa judicial nature”, for his judicial functions under section 58 form onlya small part of the duties of his office. The Registrar would thereforebe excluded from the definition. This confirms that there is noinconsistency between Article 170, and the pre-Constitutionlegislation which established the institution of the Registrar. In comingto this conclusion, I have also had regard to judicial decisions in thebackground of which Article 170 was enacted.
The usurpation or infringement of the judicial power was struck-down – in the Bribery Tribunal cases; in relation to Quazis (inJailabdeen); and in regard to the imposition of fines under theLicensing of Traders Act for contravention of the Price Control Act (inIbrahim v. G. A. Vavuniyam). However, it was held in AnthonyNaide}") that the “Legislature has power to abolish the jurisdiction ofthe Civil Courts of original jurisdiction and thus indirectly to abolishthe appellate jurisdiction of the Supreme Court, provided of coursethat the legislature does not attempt to arrogate such jurisdiction toitself or to transfer such jurisdiction to some authority, not holdingjudicial office." H. N. G. Fernando, S.P.J., continued to entertaindoubts as to whether an ordinary law could abolish the jurisdiction ofthe Supreme Court in regard to the prerogative writs, for “it may wellbe that the Constitution has, in section 52, recognised and adopted,and thus incorporated, some provisions of the Courts Ordinancewhich confer jurisdiction on the Supreme Court”. The Constitutionnow entrenches some of the jurisdictions of the Supreme Court andof the Court of Appeal, precluding an erosion of such jurisdictions byordinary law. Other jurisdictions, however, can be taken away byordinary law, provided of course that if they are transferred to otherbodies, the officers or members thereof must be appointed in termsof Articles 114 and 170. Although it was held in Karunatilleke andJayasekera that the power to determine disputes under section 58was at one time a jurisdiction vested in the civil courts, and that thetransfer of that jurisdiction to persons not appointed by the J.S.C.constituted an usurpation of jurisdiction. Act No. 34 of 1970constitutionally validated that transfer of jurisdiction. In the result,when the Constitution was enacted in 1978, no question arose of theusurpation of a jurisdiction previously vested in the civil courts.
The question of mixed functions was considered in severaldecisions. In Walker Sons & Co. Ltd v. Fry,m H. N. G. Fernando,S.P.J., observed that –
“Section 55 of the Constitution . . . failed to preclude thepossibility of the entrustment of judioial power to some authoritybona fide established for administrative purposes. Ifadministrative officials, the majority of whose powers andfunctions are administrative, are in addition entrusted on
grounds of expediency with judicial power, there would not inmy opinion be conflict with section 55. But if, under cover ofexpediency, judicial powers are vested in an officeadministrative only in name, then the principle that you cannotdo indirectly that which you cannot do directly will apply. Thatprinciple will also apply if there is frequent entrustment ofjudicial power to unpaid functionaries".
However, after the Privy Council decision in Liyanage v. TheQueen,® he modified this view (see Moosajees v. Fernando,<m) inrelation to post-Constitution legislation – holding that there could beno erosion of judicial power. But he maintained this view in regard topre-Constitution legislation, holding in Panagoda v. Budinis Singho,iu>that where “the holder of some office established mainly foradministrative purposes was entrusted also with judicial powernecessary for effectively securing the purpose of the establishment ofthe office”, such officer could validly exercise judicial power despitewant of appointment by the J.S.C. Thus the office of Commissionerfor Workmen’s Compensation, established prior to the Constitution,was an administrative tribunal, a small part of its functions beingjudicial, and was not a judicial office. Dealing with a similar questionin regard to powers exercised by officers administering the incometax laws in Xavier v. Wijeyekoon,(w} he held that the Commissioner ofInland Revenue, in imposing a penalty for making an incorrect return,does not exercise judicial power; such a penalty is a civil, rather thana criminal sanction, and is intended to protect the revenue againstloss and expense arising from the taxpayer’s fraud. In approving thatdecision, the Privy Council in Ranaweera v. Wickramasinghe,m heldthat although such public officers have to act judicially, they are notholders of judicial office; “where the resolution of disputes by someExecutive Officer can properly be regarded as being part of theexecution of some wider administrative function entrusted to him,then he should be regarded as still acting in an administrativecapacity, and not as performing some different and judicial function".
In this background, it may well be that Article 170 does not permit anerosion of existing jurisdictions; nor the mala fide entrustment ofjudicial power to public officers, in order to achieve indirectly a resultwhich cannot be achieved directly; and only allows the conferment of
some judicial power or function which can properly be regarded asbeing ancillary to some wider administrative function entrusted to anexecutive officer. Even if Article 170 is so construed, the powerconferred on the Registrar satisfies this test.
But this may not necessarily suffice to exclude an arbitrator fromthe definition of “judicial officer”. If the Registrar appoints as arbitratora private individual, such arbitrator would not be a “public officer" asdefined in Article 170, for a public officer is one appointed in terms ofChapter IX of the Constitution; appointment by the Registrar would beinconsistent with those provisions. In any event, since such anarbitrator would perform no other function, he would be a presidingofficer or member of an institution created and established for theadjudication of disputes, but would not be excluded from thedefinition of “judicial officer” on the ground that he has mixedfunctions. If the Registrar appoints.a person who is already a dulyappointed “public officer”, yet the question whether such person isexcluded from the definition would depend on whether his executivefunctions exceed his judicial functions. However, Article 170 isprimarily prospective, and we have to turn to Article 168(1) toascertain what effect Article 170 has on the continuance in force ofexisting law authorising the appointment of an arbitrator by theRegistrar. “Written Law” includes subordinate legislation, and hencesection 58, Act No 34 of 1970, and Rule 49(v), constitute written lawsin force immediately before the commencement of the Constitution.They continue in force despite inconsistency with the Constitution,except in three specified situations. The first exception does not arisefor consideration as Parliament has made no provision contrary tosuch “existing written law”. The modification of statutory provisionsmutatis mutandis is where the circumstances demand it; wherechange is essential or necessary, and not merely useful (seeVisuvalingam v. Liyanage(l7). Section 2 of the Co-operative SocietiesLaw provides that “there may be appointed a Registrar of Co-operative Societies", but does not stipulate the appointing authority; ifhe is not a “judicial officer”, appointment by the J.S.C. is not required;there is nothing in section 2 to be modified. Rule 49(v) is undoubtedlyinconsistent with Article 170, but the mutatis mutandis rule does notrequire the removal of every inconsistency. It is relevant to mentionthat Article 16(1) makes all existing written law valid and operativenotwithstanding inconsistency with fundamental rights;sinceinconsistency of such a serious nature does not invalidate existingwritten law, I cannot regard Article 168(1) as requiring the eliminationof less serious inconsistencies. Finally, it is necessary to considerwhether it has been “otherwise expressly provided in theConstitution” (i.e. in Articles 114 and 170) that the Registrar and/orarbitrators should be appointed by the J.S.C. An example of "expressprovision” is to be found in Article 169(1) which deems anyinconsistent provisions of the Administration of Justice Law to berepealed. Here there is no “express provision” of that kind. However,to be “express provision” in relation to some matter, specific mentionof that matter is not essential; for “express provision" is provision theapplicability of which does not arise by inference, and even if there isno specific mention, it is sufficient if it is directly covered by thelanguage used: Shanmugam v. Commissioner for Registration ofIndian & Pakistani Residents m). While Articles 114 and 170 areinconsistent with the existing written law, and while the necessaryimplication of those Articles, in the case of arbitrators, is thatappointment by the J.S.C. is required, they cannot be regarded ?s“express provision” to that effect, for they do not make specificmention or directly cover the appointment of the Registrar ar.darbitrators. Had Article 168(1) been omitted, there would have been aconflict between pre-existing written law and a constitutionalprovision; as in the example given in Jayasekera,<2) it could have beenargued that the statutory provisions ceased to be valid as they didnot conform to overriding provisions of the Constitution: or as inGunaseela v. Udugarnaim, Panagoda v. Budinis Singho, andRanaweera v. Wickramasinghe, that the Constitution did not affectpre-existing jurisdictions. Article 168(1) precluded suchcontroversies: mere inconsistency between existing written law andthe Constitution did not invalidate the former; that result wouldhappen only if there was "express provision” in the Constitution.
I therefore determine the questions referred to this Court asfollows:
The Registrar is an institution exercising judicial power, within themeaning of Article 4 (c), and an arbitrator appointed by the Registraris a part of such institution.
No.
Article 170 cannot apply in its entirety to Article 114, because theappointment and dismissal of Judges of the Superior Courts and theHigh Court is (by virtue of Articles 107 and 111) outside the purviewof the Judicial Service Commission. The words “other than in Article114” occurring in Article 114 could mean either that the definition istotally inapplicable to Article 114 or that it is inapplicable only to theextent that contrary provision is made in Article 114(6). Clearly thelatter is the correct position. To hold otherwise would mean that“judicial officer” in Article 114 is undefined; it would open the door tothe argument that this phrase should be limited to those who holdoffice as District Judges, Magistrates and other judges traditionallyso regarded, which was decisively rejected both in Senadhira(8) atp.320-1), by Sansoni, J., (as he then was), who held that that phraseincluded not only the officers of the established Courts but also thoseakin to them; and in Ranasinghe,l3) by the Privy Council. The definitionof “judicial officer” in Article 170 applies to Article 114(1), save asotherwise expressly provided in Article 114(6): in relation to Article114(1) that definition will apply with the omission of the words “aJudge of the supreme Court or a Judge of the Court of Appeal or anyJudge of the High Court,”
No.
BANDARANAYAKE, J. – I agree.AMERAS1NGHE, J. – / agree.
References determined.