Legal Services and Laws of Sri Lanka
SLR - 1978-79-80 Vol.1, Page No - 231
WALKER SONS & CO. (U.K.) LTD.
GUNATILAKE AND OTHERS
THAMOTHERAM, J., ISMAIL, J., WEERARATNE, J.,
SHARVANANDA, J. AND WANASUNDERA, J.
S.C. REFERENCE NO. 1/79
C. A. (S.C.) APPLICATION NO. 375/76
AN APPLICATION FOR A WRIT OF CERTIORARI
INDUSTRIAL COURT CASE NO. 1358
OCTOBER 23, 24, 25, AND 29, 1979
Stare Decisis - Application of principle of Stare Decisis - The effect of the coming into operationofanewConstitution
and a new system of CourtsonprecedentslaiddownbytheSupremeCourtconstitutedundertheprovisionsofthe
Administration of Justice Law No. 44 of 1973 - The binding effect of Supreme Court decisions onCourtsconstitutedbythe
Interpretation --Unwritten Laws" in Article 168(1) of the Constitution -Articles 127(1), 128, 132(3), 141, 168(1) 169(4)and
170 of the 1978 Constitution - Administration of Justice Law No. 44 of 1973, Sections 12, 414(3) and 14(5).
Jurisprudence - Kelsen's Pure Theory of Law.
The 2nd Respondent, Minister of Labour referred a dispute between the Petitioner Company and the3rdRespondentUnionfor
arbitration by the 1st Respondent. Does a writ of Certiorari lie to quash the order of the 1st Respondent, Arbitrator onthe
ground that the reference was invalid as the Minister had referred earlier the same dispute to a differentArbitratorwhich
reference was revoked by the Minister? Has the Minister who hasreferredanIndustrialDisputetoanArbitratorfor
settlement, the power to revoke the reference and re-refer the same to another Arbitrator?
The Supreme Court established under the Administration of Justice Law had already decidedthattheMinisterhadnosuch
power in Nadarajah v. Krishnadasa - 78 N.L.R. 255(1) and in S.C. Application No. 460/75 S .C. Minutes of 7.7.76.
The question was whether after the Constitution of 1978 came into operation, this law as laid down by the then Supreme Court
continued in force or only the bare Industrial Disputes Act continued in force.
The Court of Appeal under the provisions of Articles 125 of the Constitution referred the matter to the Supreme Courtfora
decision in the form of 2 questions.
1. Do the above decisions of the Supreme Court constituted under the Administration of Justice Law No. 44 of 1973belongto
the category of unwritten law within the meaning of Article 168(i) of the Constitution? Article 168 (i) oftheConstitution
is as follows:
"Unless Parliament otherwise provides,alllaws,writtenlawsandunwrittenlaws,inforceimmediatelybeforethe
commencement of the Constitution, shall, mutatis mutandis and except as otherwise expresslyprovidedintheConstitution,
continue in force."
2. Is the Court of Appeal constituted under the present Constitution a Court of subordinate jurisdiction or aCourtofCo-
ordinate jurisdiction to the Supreme Court established under the Administration of Justice Law 44 of 1973 for the purposeof
the application of the principle of Stare Decisis?
(1) In answer to question (1) the ratiodecidendiofthetwodecisionsoftheSupremeCourtconstitutedunderthe
Administration of Justice Law No. 44 of 1973 belongs to the categoryofunwrittenlawswithinthemeaningofArticles
(2) In answer to question 2 - the Court ofAppealconstitutedunderthepresentConstitutionisneitheraCourtof
subordinate jurisdiction nor a Court of coordinate jurisdiction to the Supreme Court established under the Administrationof
Justice Law No. 44 of 1973. Such a comparison is not possible nor necessary to determine the 1st question, What isimportant
in order to decide whether the two cases are binding on the Court of Appeal, is the question whether the Court ofAppealis
a Court of subordinate jurisdiction under the present system of Courts. The ratio decedent of the twocasesisbindingon
the Court of Appeal.
(3) All laws whether written or unwritten which were in force before the 1978 Constitution except as otherwiseprovidedfor
in the Constitution continue in force and therefore the ratio decidendi in the 2 cases under referencearebindingonall
Courts of subordinate jurisdiction among which is the Court of Appeal.
Cases referred to
(1) Nadaraia Ltd. (in voluntary liquidation) v. N. Krishnadasa 78 NLR 255
(2) Carl-Zeiss Stiftung v. Rayner  2 All ER 536 at 557.
(3) Bandahamy v. Senanayake 62 NLR 313, 322, 337-8.
(4) Madzimbamuto v. Lardner Burke  2 SALR - 284
(5) lbra Lebbe v. the Queen 65 NLR 433
(6) Costa v. Jayatilleke SC 265/74-D.C. Mt. Lavinia 47641 /A
(7) Baby Nona v. Kahunagala 66 NLR 361
(8) Felner v. the Minister of Interior  1 SALR 522 at 538
(9) Liyanage v. the Queen 68 NLR 265
(10) Young v. BristolAeroplane Co.  KB 718
(11) London Street Tramways v. LCLR 41
(12) Moosajee vCarolis Silva 70NLR 217
(13) Mohideen v. State of UP - AIR 1960 (Allahabad) 484
(14) King v. Barger 6CLR 41
(15) Attorney-General for Ontario v. the Attorney-General for the Dominion  AC 348.
(16) Gallie v. Lee 1All ER 1062, 1082
(17) Bengal Immunity Co. Ltd. v. Bihar AIR 1955 SC 661
(18) Punjabai v. Shanrao AIR 1955 Nagpur 293
(19)State of Bombay v. Gajanam Mahadev AIR 1954 Bombay 351
(20) Abdul Kader v. The State AIR 1951 Mysore 284
(21) Punjab State v. Bhagat Singha AIR 1955 Punjab 118
REFERENCE to the Supreme Court under Article 125 of the Constitution of the Democratic Socialist Republic of Sri Lanka.
H. W. Jayewardene Q.C. with H. L de Silva, L Perera and R. Perera for the Petitioner.
Dr. Colvin R. de Silva with T. B. Dillimunu and M. B. de Silva for the 3rd Respondent.
November 11, 1979
This matter relates to an application for a writ of certiorari made by Walker Sons & Co. (UK) Ltd. seeking to haveanorder
made ,under the Industrial Disputes Act (Chapter 131), by W. P. Gunatilake the 1st Respondent, quashed.
The application was originally made to the then Supreme Court ofSriLankaasestablishedundertheAdministrationof
Justice Law No. 44 of 1973. This application was allowed.
The question of Law involved was whether a Minister, who has dulymadeanorderunderSection4(1)oftheIndustrial
Disputes Act referring an industrial dispute for settlement by arbitration, has power to revoke the said order of reference.
The Supreme Court established under the Administration of Justice Law had already intwocasestakentheviewthatthe
Minister had no such power and therefore the purported revocation oftheoriginalreference andthere-referencewere
invalid in the law as being in excess ofthe powers of the Minister.
The first of these cases was Nadaraia Ltd. (in voluntary liquidation]v.N.Krishnadasa(1)whereSharvanandaJ.with
Walgampaya J. and Sirimane J. agreeing, expressed this view. The second was an unreported judgment delivered on 7.7.76(S.C.
Application No. 460/75) in which I with Wanasundera J. and Collin Thome J. agreeing took the same view.
It is not unreasonable to assume that this Bench was aware of the two earlier decisions when it allowedtheApplicationto
quash the order of the 1st Respondent.
The third Respondent was not represented at the hearing and of consent the order of the Supreme Court was latervacatedand
the matter relisted for hearing. All this happened before the Supreme Court under the Administration of Justice Lawwhenit
was the Court of final authority at the apex of the then. judicial structure. If the question is asked what wasthelawon
the point at this time, the answer must be that the Minister cannot revoke his reference once made and a second referenceis
invalid. This was the law in force at the time when the 1978 Constitution came into operationandthethenSupremeCourt
ceased to exist. When we say this was the law it means it had a "binding force" or a "coercive force" for the future.
Article 169(4) of the. Constitution of the Democratic Socialist Republic of Sri Lanka states"Alloriginalproceedingsby
way of application for the issue of high prerogative writs and applications for anyotherreliefpendingintheSupreme
Court . . . . . . . established under the Administration of Justice Law No. 44 of 1973 on the date immediately precedingthe
commencement of the Constitution shall stand removed to the Court of Appeal and such Court shall havejurisdictiontotake
cognizance of, hear and determine or to continue and complete same ......."
It was under this provision that this application which was before the former Supreme Court and ordered to berelistedcame
up for hearing before the Court of Appeal.
Article 140 of the present Constitution gives the Court of Appeal the power to issue writs other than writs of HabeasCorpus
while Article 141 gives it the power to.issue writs of Habeas Corpus.
The jurisdiction of the Court of Appeal in respect of judgments and orders of all Courts of1stinstanceotherthanHigh
Courts and Tribunals and other institutions shall be exercised by at least two judges of theCourt.Intheeventofany
differences of opinion between two judges constituting the bench, the decision of the Court shall besuspendeduntilthree
judges shall be present to review such matter. In my view the words "'at least two" are used to permitathirdsittingin
the case of differences of opinion when only two are sitting. There isnoprovisionformorethantwobeingspecially
constituted to overrule the decisionof two judges - An appeal lies to the Supreme Court from a decisionoftheCourtof
Appeal even in writ matters.
The Supreme Court had power to issue writs under Section 12 of the Administration of Justice Law.Thejurisdictionofthe
then Supreme Court was required to be exercised in respect of judgments and orders of MagistratesCourtsbyatleasttwo
judges, and its jurisdiction in respect of judgments and orders of DistrictCourtsandHighCourtswasrequiredtobe
exercised by at least three judges.
There is a special proviso to Section 14 which is applicable to the power to issue writs under Section 12 whichstatesthat
'The Supreme Court's jurisdiction in respect of writs under Section 12 shall be exercised atalltimesbynotlessthan
three judges in such manner as may be prescribed by rules of Court.
Section 14(5) states that the judgment of the Supreme Court shall in all cases be final and conclusive.
Section 14(3) of the Administration of Justice Law states "The Chief Justice may
(a) of his own motion
(b) at the request of two or more judges hearing an appeal or
(c) on the application of a party to the proceedings on the ground of general or public importance of the matter in dispute,
direct thatany case pending before the Supreme Court be heard by a bench of five or more judges.
Two features of the Supreme Court under the Administration of Justice Law must now be noted.
Under Section 14(5) the judgment of the Supreme Court was in all cases,finalandconclusive.Inotherwordsthethen
Supreme Court was the final authority to tell us, or declare what the law was onanyparticularmatter.Becauseofthis
there was special provision in 14(3) for the constitution of a bench of five or morejudgeswhosejudgmentororderwas
vested with the highest authority. But it was still the judgment ororderofthesameSupreme-Court.Itwasbinding
authority even for the Supreme Court composed of less number of judges. These two features are absentinthecaseofthe
Court of Appeal because it is not the Court with thehighestauthorityunderthesystemofCourtslaiddowninthe
Constitution of the Democratic Socialist Republic of Sri Lanka which came into operation in 1978.
Article 105(1) of the present Constitution lays down the heirarchy of Courts as follows :
Subject to the provisions of the Constitution, the institutions for the administration of justicewhichprotect,vindicate
and enforce the rights of the people shall be -
(a) The Supreme Court of the Republic of Sri Lanka.
(b) The Court of Appeal of the Republic of Sri Lanka.
(c) The High Court of the Republic of Sri Lanka and such other Courts of first instance, tribunals orsuchinstitutionsas
Parliament may from time to time ordain and establish.
Article 118 states: The Supreme Court of the Republic of Sri Lanka shall be the highest and final superiorcourtofrecord
in the Republic and shall subject to the provisions of "the Constitution exercise -
(a) Jurisdiction in respect of Constitutional matters
(b) Jurisdiction for the protection of fundamental rights
(c) Final Appellate jurisdiction
(d) Consultative Jurisdiction
(e) Jurisdiction in election petitions
(f) Jurisdiction in respect of any breach of the privileges of Parliament and
(g) Jurisdiction in respect of such other matters which Parliament may by law vest or ordain.
The jurisdiction of the Court of Appeal is set out in Article 138(l)The Court ofAppealshallhaveandexercise-an
appellate jurisdiction for the correction of all errors in fact or in law which shall be committedbyanyCourtoffirst
instance, Tribunal or other institution and take sole and exclusive cognizance by way of appeal, revision andrestitutioin
integrum of all causes, suits, etc. of which such Court of first instance, tribunalorotherinstitutionmayhavetaken
Under Article 127(1) of the Constitution the Supreme Court shall subject to the Constitution be the final Court of civiland
criminal appellate jurisdiction ...... for the correction of all errors which shall be committed by the Court ofAppealor
any Court of first instance, tribunal or other institution and the judgments and orders of the Supreme Courtshall inall
cases be final and conclusive in all such matters. It is to be noted that the present application is foranorderquashing
the judgment of the 1st Respondent and therefore the Court of Appeal was exercising an original jurisdiction given toitby
It was readily conceded by Dr. de Silvathatunderthejudicialstructureestablishedby theConstitutionof.the
Democratic Socialist Republic of Sri Lanka the Supreme Court is at the very apex exercising finalandconclusiveauthority
and that the Court of Appeal is subordinate to it.
It was also agreed that the Supreme Court as established by the Administration of Justice Law was the Courtofthehighest
authority under the judicial structure established by that Law.
The third matter on which there is nodisputeisthatitisnotpossibletocomparetheSupremeCourtunderthe
Administration of Justice Law and the Court- of Appeal under the present Constitution. Mr. Jayewardene said it would belike
comparing the incomparable.
The second question which is referred to us was formulated by the Court of Appeal as follows
"Is the Court of Appeal constituted under the present Constitution a Court of subordinate jurisdictionoraCourtofco-
ordinate jurisdiction to 'the Supreme Court established under the Administration of JusticeLawNo.44of1973forthe
purpose of the application of the principle of stare decisis. "
The answer to this is not difficult. The Courtof Appeal is neither a Court of subordinate jurisdiction nor a Courtofco-
ordinate jurisdiction or for that matter it is not a Court of superior jurisdiction to that of the Supreme Courtestablished
by the Administration of Justice Law. Dr. de Silva's contention was that the doctrine of stare decisis can only applywithin
the same system and a Court of subordinate jurisdiction is bound by the decisions oftheCourtofthehighestauthority
within the same system.
Mr. Jayewardene's argument was that at any given time the interpretation or declaration by a Court of thehighestauthority
is theLaw on the point unless the Law as interpreted is altered by the Legislature or by a Court atthetimeenjoyinga
position of being the Court of last resort.
If I may revert to the point of Law involved in the present case it is as follows
In the two cases which came up before the Supreme Court under the Administration of JusticeLawtheviewwastakenthat
where the Minister has duly made an order under section 4(1) of the Industrial Disputes Act referring anindustrialdispute
for settlement by arbitration he has no power to revoke the said order of reference. The subsequent reference toarbitration
of the same dispute was therefore one made in excess of jurisdiction and the award madeonsuchsubsequentreferencewas
null and void and of no effect in Law.
This was on a reading of the relevant provisions of the Act by the highest authority at the time and could have beenaltered
either by the Legislature or by a bench of five or more judges constituted by the Chief Justice under Section14(3)ofthe
Administration of Justice Law. The question is whether after the present Constitution came into operation this law as ithad
been declared by the Court then vested with the highest authority continued in force or onlythebareIndustrialDisputes
Act continued in force?
The main question referred to us by the Court of Appeal for our authoritative determination reads as follows
"Article 168(1) of the Constitution enacts that unless Parliament otherwise provides, all laws, writtenlawsandunwritten
laws, in force immediately before the commencement of the Constitutionshallmutatismutandis,andexceptasexpressly
provided in the Constitution continue in force. The first question we refer may be formulated thus Do theabovedecisions
of the Supreme Court constituted under the Administration of Justice Law No. 44 of 1973 belong to the category of"unwritten
laws" within the meaning of Article 168(1) ?"
Before we consider the meaning and effect of Article 168(1) of the present Constitution we must consider the argument ofMr.
Jayewardene that without having recourse to thatArticle,onaconsiderationofthegeneralprinciplesoflaw,the
pronouncement of the Court of the highest authority as to what the law is on a particular point is partandparcelofthe
law in force. A change of Constitution did not affect its binding force. Itsbindingforceorcoerciveforcecontinued.
Article 168(1) was a statement of an existing position in the law to place the matter beyond doubt. It was also opentothe
present Court of last resort possessed with final authority to take a different view. The legislature too could do thesame.
In this connection we must note that according to Article 132(3) the Chief Justice may (1) of his own motion or(2)atthe
request of two or more judges hearing any matter or (3) on the application of a party to any appeal,proceedingormatter,
if the question involved is in the opinion of the Chief Justice one ofgeneralandpublicimportance,directthatsuch
appeal, proceeding or matter be heard by a bench comprising five or more judges of the Supreme Court. This is identicalwith
Section 14(3) of the Administration of Justice Law. The only difference is that one is found in the Constitution itself.The
other is in the Administration of Justice Law and not in the Constitution of that time, and in both cases they refertothe
highest Court. As pointed out earlier there is no such provision relating to the Court of Appeal for the good reason thatit
is a Court of subordinate jurisdiction in the hierarchy of Courts under the present Constitution and it is notopentothe
Court of Appeal as a Court of subordinate jurisdiction to do what only the present Supreme Court or Parliament can do.
At this point we must discuss the doctrine of stare decisis and the creative role ifany,oftheCourtofLawoflast
resort. Dr. de Silva emphasised the word "doctrine" and asserted that the function of a Court is onlytodeclarewhatthe
law is. To my mind the important question is whether the ratio decidendi of a case decided by the highest Court or thecourt
of last resort has binding force as a rule for the future.
We need not go into the relative merits of the deductive and inductiveprocessofjudicialreasoningasSriLankahas
inherited the English Law of precedent. The House of Lords is the final interpreter of the law fortheUnitedKingdomand
its decisions are absolutely binding on all lower Courts. So in Sri Lanka, the decisionsoftheSupremeCourtunderthe
Administration of Justice Law and the Supreme Court under the present Constitution are similarly binding. Dr.deSilvadid
not dispute the binding force of their authority. His contention wasthatsuchbindingforcewasonlyoverCourtsof
subordinate jurisdiction within the particular system.
"Certain well-recognised principles of interpretation apply throughout -
(1) Any relevant judgment of any Court is a strong argument entitled to careful consideration.
(2) Any judgment of any Court is authoritative only as to that part ofit, called the ratio decidendi, whichisconsidered
to have been necessary to the decision of the actual issue between the litigants. It is for the Court,ofwhatever degree
which is called upon to consider the precedent to determine what the true ratio decidendi was". Allen Law in the making,6th
Edition page 247.
'The proposition that every principle embodied in a judicial decision has for the future the force of lawisnotmerelya
statement of historical fact as to the growth of English law, it is itself a rule of law". (referred to by Allen at page259
of his book (supra). Allen remarks at page 347 of his book (supra) "The judge's function is to interpret, nottolegislate,
but in the process of interpretation he inevitably affects the development of the law. He "makes law" onlyinaderivative
sense, but the formative effect of his interpretation on all the most essential principles of law is of the highest andmost
Rupert Cross - in Precedent in English Law remarks "Legal theory is mainly concerned with the nature and definitionoflaw,
the sources of law are Parliament and Judges of the Supreme Courts. If an English lawyer wants to know what the lawis,his
first inquiry will be whether the point is governedbystatuteinwhichcasehewillwishtoconsulttherelevant
enactments, since the judges are bound to give effect to ActsofParliamentunderthedoctrineofthesovereigntyof
Parliament. According to this doctrine, it is, in legal theory, possible for Parliament to make or unmakeanylawalthough
its powers are subject to a number of practical limitations.TheEnglishlawyer'ssecondinquirywouldrelatetothe
activity of the judges. He would want to know whether there were any reported cases on the point, because under thedoctrine
of precedent much English law is derived from the decisionsandobservationsofJudges"."Theexpression"doctrineof
precedent" therefore sometimes refers to the rule that judicial decisions have the force of law in addition to thepractices
by which effect is given to that rule." (page 3 supra). "The peculiar feature of the English doctrine ofprecedentsisits
strongly coercive nature". "We start therefore with a general definition of sources of law as those from whichthecontent
of the law is derived. "Legal sources" are those which are recognised as such by the lawitself-Precedent,legislation,
and custom are legal sources of English law because it is itself a principle of English Law that any principle involved ina
judicial decision has the force of law. Similar legal recognition is extended to the law producingeffectofstatutesand
immemorial custom.. Rules such as these establish the sources of law". Salmond page 136 (9th Ed.).
Kelsen's works on jurisprudence was relied on by Mr. Jayewardene. Dr.deSilva'sreplywasalsoonthebasisofthe
acceptance of Kelsen's views. I think the reliance on Kelsen was appropriate especially as we have a written Constitution.
Kelsen's first postulate is that law exists solely in the world of "shall be" and that everylegalprincipleistherefore
that kind of rule which continental jurisprudence has long known as ""norm". Kelsen finds the distinguishing mark of. lawin
the element of compulsion. All, law must possess an "apparatus of compulsion". Kelsen holds that in all civilizedstatesit
is possible to trace one's way back to a basic norm, the Grundnorm,a ground,indispensablepostulatetowhichallthe
roads of the law lead by however devious routes. InmanymodernstatesthisGrundnormistobefoundinawritten
Constitution. Kelsen speaks of the law asa hierarchic structure descending from the supreme positive norm tothesmallest
manifestation of it. Each one of these acts of deduction and application is a creative act and the wholejudicialorderis
thus a coherent system of progressive delegation and by this process the law is rendered perpetually self-creative.
Hans Kelsen in his book on 'The Pure Theory of Law" says at page 250 under subtitle "Creation of general legal normsbythe
CourtsFlexibility of the law and legal security"',
"A Court especially one of the highest instances, may be authorised to create by its judgment notonlyanindividualnorm
binding for the present case, but a general norm. This happens when the judicialdecisionbecomesaso-calledprecedent,
that is when the decision of the case is giving direction to the decision of similar cases.
A judicial decision may have the character of a precedent when the individual norm created by thedecisionisnotinits
content predetermined by a general norm of statutory orcustomarylaworisambiguouslywordedandthereforepermits
different interpretations. In the former case the Courts precedential decision createsnewlaw,inthesecondcasethe
interpretation implicit in the decision assumes the character of a general norm. In both cases, the Courtthatcreatesthe
precedent functions in a manner of a legislator precisely like the organ authorised by theConstitutiontolegislate.The
judicial decision of a concrete case gives direction to the decision of similar cases in that the individual normwhichthe
judicial decision represents is generalised".
Kelsen refers to the ratio decidendi of a case in this way at page 250.
"Since the precedential decision can give direction only to the decision of similar cases, the questionwhetheracaseis
similar to the precedential case is of decisive importance. Since no caseissimilartoanotherineveryrespect,the
"similarity" of the two cases in question here can consist only in that they correspond to each otherincertainessential
points, just as two sets of facts which constitute the same delict are not similar in all points. But the questiononwhich
points they have to correspond in order to be considered "similar' can be answered only on the basis of a generalnormthat
defines the fact by determining its essential elements. Whether two cases are similar can therefore be decidedonlyonthe
basis of the general norm created by the precedential decision. The formulationof thisgeneralnormisthesupposition
under which the precedential decision can give direction to the decision of 'similar' cases."
"The law creating function of the Courts becomes particularly visible when a Court is authorised to create a general normby
establishing a precedent. To give such an authorisation to a Court especially to a Court oflastinstanceisparticularly
commendable. When the Court is authorised to decide a case under certain circumstances not by applying a general normofan
already existinglaw but according to its own discretion, in other words if the Court is authorised to create anindividual
legal norm whose content is not predetermined by a general norm of positive law, to bestow the character of a precedentupon
such a decision is only a consistent enlargement of the Court's law creating function."
Kelsen states in his book "The Pure Theory of Law" atpage237&238,"Ajudicialdecisiondoesnothaveamerely
declaratory character as is sometimes assumed. The Court does not merely "find the law" whose creationhadbeenpreviously
entirely completed, the Court's functionis not only juris "dictio" the pronouncement oflawinthedeclaratorysense".
"Only the lack of insight into the normative function of the judicial decision, only theprejudicethatthelawconsists
merely of general norms, only the ignoring of the existence of individual legal norms obscured thefactthatthejudicial
decisions is a-continuation of the law creating process, and has led to the error toseeitinasamerelydeclaratory
The moment we concede the binding force of precedent we are conceding that the ratio decidendi of a casehastheforceof
law. This cannot be so in respect of the decisions of every Court but only in respect of the decisions of the highestCourt,
the Court of last instance or resort. That is why in England the House of Lords is thefinalinterpreterofthelawand
only the legislature can overrule it. Once the highest Court of the land has interpreted the law it becomes partandparcel
of the law in force. The reason why other Courts have to follow the ratio decidendi of cases of the highest Court isbecause
it is the law of the land and does not lie in the fact that these Courts are of subordinatejurisdictionbutinthefact
that they are pronouncements of the highest Courts.
This view is illustrated by the fact that in the field of international law it is the judgment ofthehighestCourtofa
state which is recognised as a judgment declaratory of the law of that State. The subordinate status of theCourtboundby
the decision of the highest Court has no relevance to the point beingconsiderednow.Whatmattersisthatitisthe
declaration of the highest Court.
In Carl-Zeiss. Stiftung v Rayner (2) Lord Sumner's dicta in an earlier case was quoted with approval. Lord Sumner said
"Evidence of the opinion of the highest Court of the foreign State whose law happens to tie the subject matterofproofin
this country is obviously for an English Court the best available evidence upon the question andissuchthat,ifitis
clearly directed to the point in dispute and is insusceptible of any but oneinterpretation,otherevidenceofthatlaw
could hardly be set against it."
Mr. Jayewardene in his written submissions quotes Salmond on Jurisprudence as follows
"We must admit openly that precedent makes law as well as declares it we must recognise a distinct law creating powervested
in them (Judges) and openly and lawfully exercised."
He then continues, "The rule of precedent or stare decisis has beenfullydiscussedbyBasnayakeC.J.inBandahamyv.
Senanayake (3). It is clear that the rigid English system of precedent has become part of ourlawasstatedbyBasnayake
C.J. in the above case (vide pages 337-338). Though the decision is authority forthepropositionthatajudgmentofa
collective Court is binding on a bench constituted of judges who do not constitute all the judges of theSupremeCourtand
that a numerically superior bench can overrule, though in exceptional circumstances, adecisionofaCourtofalesser
number of judges, the several judgments all recognise the existence inthiscountryoftheLawofprecedentorstare
A careful reading of this case can leave no one in doubt that the above is an accurate statement and that the caseisclear
authority for the proposition, that the doctrine of precedent as defined and accepted in English law is part ofthelawof
Bandahamy v. Senanayake was heard by seven judges all of whom accepted the theory of precedent as part of our law. I wishto
refer to some of the statements of Basnayake C.J. to establish this point.
"The decision of an ultimate or Appellate Court has a dual aspect. The decision of the dispute between thepartiesandthe
principles of law which the Court lays down in deciding that dispute. The actual decision of the dispute bindstheparties.
About that there is no question. The principles of law guide the Court indecidingsimilardisputesandmostCourtsof
Appeal and of ultimate jurisdiction regard themselves as bound by the principles enunciatedbythemintheirdecisions".
"I now come to consider the doctrine as applied in our country. From what has beensaidaboveitwouldappearthatthe
practice is not the same even in the Commonwealth countries. England represents the rigid school of stare decisisandSouth
Africa the flexible school. The other countries referred to above appear to be moreinclinedtowardstheflexibleschool
than the rigid. We in Ceylon are under the influence of the English legal system by reason of the fact thatalmostallour
judges in the pre-independence era were those trained and versed in the English system. In the result the flexibility ofthe
Roman Dutch system did not have an opportunity of asserting itself. Pages 337-83.
"It would appear from the decisions both here and abroad cited above that the doctrineofstaredecisisisnotarigid
doctrine and that the practices vary from country to country and that the attitude of judges to the doctrine isnotuniform
and varies according to the class of case which comes for consideration ....
We have in this country over the years developed a cursus curiae of our own which may be summarised thus :
a) One judge sitting alone as a rule follows a decision of another sitting alone. Where a judge sitting alonefindshimself
unable to follow the decision of another sitting alone the practice is to reserve the matter for the decisionofmorethan
b) A judge sitting alone regards himself as bound by the decision of two or more judges.
c) Two judges sitting together also as a rule follow the decision of two judges.Wheretwojudgessittingtogetherfind
themselves unable to follow a decision of two judges, the practice in suchcasesisalsotoreservethecaseforthe
decision of a fuller bench although the Courts Ordinance does not make express provision in that behalf as in the case
of a single judge.
d) Two judges sitting together regard themselves as bound by a decision of three or more judges.
e) Three judges as a rule follow a unanimous decision of three judges, but if three judges sitting togetherfindthemselves
unable to follow a unanimous decision of three judges a fuller bench would be constituted for thepurposeofdecidingthe
f) Four judges when unanimous are regarded as binding on all benches consisting of less than four. In other words a
bench numerically inferior regards itself as bounded by the unanimous decision of a bench numerically superior.
g) The unanimous decision of a collective Court i.e a bench consisting of all the judges for thetimebeingconstituting
the Court is regarded as binding on a bench not consisting of all the judges for the time being constituting theCourteven
though that bench is numerically superior to the collective court owing to the increase in the number of judges for thetime
being constituting the Court."
I think I have quoted enough of this part of this judgment of Basnayake C.J. to show
1) That in Sri Lanka we have over the years developed a cursus curiae of our own inregardtothehighestCourtinthe
2) This cursus curiae is based on the acceptance of the principle of the binding force of precedents.
3) In Bandahamy v. Senanayake the main matter discussed was the binding effect of previousdecisionsonthesamehighest
Court in the Island and the relevance of the number of judges constituting the bench as well as the authority ofadecision
of a special bench constituted by the C.J. under a statutory provision viz. Section 51 of the Courts Ordinance.
I have cited the various authorities to establish my view that the ratio decidendi in the two cases referred to were lawsin
force immediately before the commencement of the Constitution of the Democratic Socialist Republic of Sri Lanka.
Starting now from the proposition that the ratio decidendi of cases decidedbytheSupremeCourtestablishedunderthe
Administration of Justice Law was part and parcel of the law in force immediately before the comingintooperationofthe
1978 Constitution we have now to address our minds to the effect of the New Constitution on the law existing at the timethe
new Constitution replaced the 1972 Constitution.
Mr. Jayewardene stated his argument as follows
"Any Change of Constitution by legal means cannot change in any way the sovereignty of the people and even a coup d" etator
revolution which results in a constitutional change cannot affect in any respect the continuity of the lawifInternational
Law and International community recognises a victorious revolution or a successful coup d'etat". He relied on Kelsen General
Theory of Law and State.
Mr. Jayewardene further said, "in the present context though the Constitution of 1972 was changed andreplacedin1978it
was changed according to the provisions of the 1972 Constitution.Ithasbeenacceptedbythejudgesofthepresent
judicature of the country. It is submitted that the continuity of the law as laid down by the judges of the previousSupreme
Court has not in any way been altered by the constitutional changes nor can they be changed by changes in thejudicatureor
its structure'". He also referred us to Madzimbamuto v. Lardner-Burke (4).
According to Kelsen (The Pure Theory of Law-page 195) "Such a presupposed highest norm is referred to in this bookasbasic
norm. All norms whose validity can be traced back to one and the same basic norm constituteasystemofnorms,normative
order. The basic norm is the common source for the validity of all norms that belong to the same order -, it is theircommon
reason of validity. The fact that a certain norm belongs to certain order is based on the circumstance that itslastreason
of validity is the basic norm of this order, It is the basic norm that constitutes the unity in themultitudeofnormsby
representing the reasons for the validity of all norms that belong to this order".
In our country the basic norm is the Constitution. Dr. de Silva at the very endoftheargumentafterMr.Jayewardene's
reply stated his position as follows:
"The repeal of the Constitution terminated the legal order itembodied.ThenewConstitutionwhichtakestheprevious
Constitution's place begins or starts a new legal order. The mode of effecting the change of the Constitution did notaffect
Kelsen"s theory does not support these propositions as formulated by Dr. de Silva. Kelsen states in his bookGeneralTheory
of Law and State at page 117, "The validity of legal norms may be limited in time, and the-end as well asthebeginningof
the validity is determined only by the order to which theybelong.Theyremainvalidaslongastheyhavenotbeen
invalidated in the way which the legal order itself determines. This is the principle of legitimacy".
This principle however holds under certain conditions. It fails to hold in the case of a revolution, this word is understood
in the most general sense, so that it also covers the so-called coup d'etat. A revolution in this wide sense occurs whenever
the legal order of a community is nullified and replaced by a new order in an illegitimate way, that is in a way not
prescribed by the first order itself. It is in this context irrelevant whether or not this replacement is effected through a
movement emanating from the mass of people or through action from those in Government positions. From a juristic point of
view, the decisive criterion of a revolution is that the order in force is overthrown and replaced by a new order in a way
which the former had not itself anticipated."
Dr. de Silva argued in his reply that a revolution waseffectedbythe1978Constitution.Heinvitedustoaclose
comparison of the 1972 Constitution with the 1978 Constitution of the Democratic Socialist Republic of Sri Lankaandargued
that there were fundamental changes in regard to the judicature,legislature,thepositionofthePrimeMinister,the
position of the President and in many other matters. These changes were so radical that there was in facta'revolution.I
believe it is on this that he based his three propositions referred to earlier.
Article 44 of the 1972 Constitution reads
"The legislative power of the National StateAssembly is supreme and includes the power -
a) To repeal or amend the Constitution in whole or in part and
b) To enact a new Constitution to replace the Constitution,
provided that such power shall not include the power -
1) To suspend the operation of the Constitution or any part thereof and
2) To repeal the Constitution as a whole without enacting a new Constitution to replace it".
The main object of this Article was that at no time should the country be without a Constitutioninoperation.Theremust
always be a Constitution or basic norm. There was no other restriction on a new Constitution replacing the old.
In short the new basic norm or the new Constitution was validated or made valid in the way which the old basicnormorthe
old Constitution determined and therefore the replacement of the old basic norm by the newbasicnormwaslegitimateand
continued as a successor to the old without a break giving a continuing validity to all norms to whichtheoldbasicnorm
had given validity. It is only when the new Constitution is brought into operation inawaynotprovidedforintheold
Constitution that there occurs a break in all the norms under the old basic norm and can be kept in force by some expressor
implied provision in the new Constitution. In the words of Kelsen, The Pure Theory of Law, "The function ofthebasicnorm
becomes particularly apparent if the Constitution is notchangedbyconstitutionalmeansbutbyrevolution,whenthe
existence-that is the validity of the entire legal order directly based on the Constitution is in question."
"From a juristic point of view the decisive criterion of a revolution is that the order in force is overthrownandreplaced
by a new order in a way in which the former had hot itself anticipated". It is only in this eventuality canDr.deSilva's
first two propositions hold good viz :
1) The repeal of the Constitution terminated the legal order it embodied.
2) The new Constitution which takes the previous Constitution's place begins or starts a new legal order.
Mr. Jayewardene quotes Kelsen in his written submissions"State and its legal order remains the sameonlyaslong.asa
Constitution is intact or changed according to its own provision."
I am of the view that the legal order under any Constitution does not change solongastheConstitutionischangedor
replaced by a new Constitution in accordance with the provisions of the old Constitution. Therefore all laws existing atthe
time of replacement continues in force without a break but derives its validity from the new Constitution.
As the hierarchy of the Courts at any given time is important in order to find out which Court is the Court of finalresort,
or Court with ultimate authority I give below a brief statement of the position in Sri Lanka from the time the SupremeCourt
was established by the Charter of 1833.
Prior to 1971, the Privy Council was the highest Court that exercised jurisdiction in Sri Lanka orCeylonasitwasthen
known. The Supreme Court as established by the Charter of 1833 and continued thereafter by subsequent legislation camenext,
and thereafter he Court of Criminal Appeal and the original Courts, the former being really a part of the SupremeCourt.In
1971 with the abolition of the right of appeal to the Privy Council and theestablishmentoftheCourtofAppeal,this
latter Court as then constituted became the highest Court in the land. This Court wasinturnabolishedin1974bythe
Administration of Justice Law and a new System of Courts was established by this law.
In 1974, therefore the new Supreme Court as established under the Administration of Justice Lawbecame the highest Courtin
the country. This position continued till 7th Sept. 1978 when the new Constitution of the DemocraticSocialistRepublicof
Sri Lanka abolished the Supreme Court established under the Administration of Justice Law and much ofitsjurisdictionwas
conferred on the Court of Appeal under the present Constitution. This Court of Appealhowever, had a lowerstatusinthat
it was made a Court of subordinate jurisdiction by the creation of the presentSupremeCourtwithsupremepowerinall
matters of law. The Supreme Court is at the very peak of the judicial structure and is the Court of last resort.
The highest Court or the Court of last resort between 1833 to 1971 wasthePrivyCouncil.TheSupremeCourtunderthe
Administration of Justice Law fell within the same description during the period between 1974 and 1978. I shall now referto
two cases, one decided by the Privy Council and the other by the Supreme CourtundertheAdministrationofJusticeLaw.
These cases have a relevance to the matter under discussion. The first is lbralebbe v. the Queen (5). The Privy Councilheld
that the jurisdiction to entertain appeals from Ceylon before theJudicialCommitteeofthePrivyCouncilincriminal
matters still existed and had not been abrogated by Ceylon's attainment of Independence. The structure of Courts fordealing
with legal matters and the system of appeals existing at the timeofCeylon'sattainmentofIndependencehadnotbeen
affected by any of the instruments that conferred that status. While the legislative competence of the ParliamentofCeylon
included the power at any time if it thought right to modify or terminate the Privy CouncilappealfromitsCourts,true
independence was not in any way compromised by the continuance of that appeal, unless anduntilthesovereignlegislative
body of Sri Lanka decided to end it.
The following dicta of Viscount Radcliffe who gave thejudgmentoftheBoard,isapposite.Dealingwithstatutesin
existence before the new Constitution he said "it would not bepossibletoignorethesignificanceofthesestatutory
provisions which form part of the law of Ceylon, on the ground that they are mere relicsofpreindependencedays,which
have been left stranded by time on the shores of the statute book" page 438.
He said again at page 442, "It remains now to inquire whether there was anything in theestablishmentofIndependencefor
Ceylon that expressly or impliedly, brought about that amendment. The instruments employed were the CeylonIndependenceAct
1947 of the Parliament of the United Kingdom (11and 12 Geo V1C 7) and several OrdersinCouncilsettinguptheCeylon
Constitution, of which the Ceylon (Constitution) Order in Council 1946(hereinafter referred to as the 1946Order)isthe
substantive enactment. It can be said at once that nowhere is there to be . found in these instruments any referencetothe
Privy Council appeal, its continuance or its extinguishment. Independence as such didnot,ofcoursealtertheexisting
corpus of law in Ceylon."
Ceylon obtained her Independence in 1947 without a revolution - To quote Kelsen again "From a juristicpointofview,the
decisive criterion of a revolution is that the order in force is overthrown and replaced by a new order in awaywhichthe
former had not itself anticipated." The basic norm before the grant of independence and the basic norm after itwasgranted
is, in their very essence different and yet the independencewasobtainedinalegitimateway.Kelsen'sprincipleof
legitimacy applied. The existing corpus of law continued without a break.
The other case is Costa v. Jayatilleke (6). This was a decision of the Supreme CourtundertheAdministrationofJustice
Law. The question arose whether it was bound by the decision in Baby Nona v. Kahunagala (7).Afterconsideringmanycases
decided here and abroad Vythialingam J. held that the Supreme CourtundertheAdministrationofJusticeLawbeingthe
highest Court under that system was not bound by adecision of the Supreme Court which precededitasthelatterwasa
Court subordinate to the Privy Council. Justice Vythialingam said "No question of numerical superiority arises because itis
a question of the authority of the deciding tribunal. For as Greenbert J. A. observed in Felner v. Minister of Interior(8),
"it seems clear that the authority of a decision rests on the status of the Court andnot on a counting of heads".
If I may state my view once again in slightly different terms, it is fallacious tocomparecourtsbelongingtodifferent
systems of. courts and say one is higher, or subordinate or coordinate with the other. The relevant question is which isthe
court vested with final authority in any system. The ratio decidendi of cases decided by the Court becomesaruleforthe
future binding all courts which are not the courts of last resort whether it be under the same system orunderadifferent
system. It is always open to the legislature to alter the rule as declared.
Mr. Jayewardene also argued for the binding force of the ratio decidendi ofthehighestcourtanditscontinuingforce
without a break, from the viewpoint of judicial power.
Prior to 1972 the Courts of this country recognised separation of powers as being partoftheConstitutionandthatthe
judicial power of the state was exercised by the Judicature. Liyanage v. Queen (9).
The 1972 Constitution declared that sovereignty is in the people and ordained that the National State Assembly exercisesthe
judicial power of the people through the Courts (vide Articles 3, 4 and 5 of the 1972 Constitution). Till suchtimeasthe
National State Assembly declared otherwise, the highest Court of the land declared the law andinexercisingthejudicial
power of the people was giving expression to the law of the country which it was its dutytodo.Judicialpowerbeinga
concomitant of sovereignty a decision of the highest Court must therefore be given recognition as the highestexpressionof
the will and sovereignty of the people unless. the National StateAssemblyexpressesitselfdifferently.Anychangeof
Constitution by legal means cannot change in any way the sovereignty ofthe people.Thisisanargumentwhichcommends
itself to me.
Under Article 5 (c) of the 1972 Constitution "The National State-Assembly is the supreme instrument-of State powers ofthe
Republic. The National State Assembly exercises thejudicialpowersofthepeoplethroughtheCourtsandtheother
institutions created by law..."
It is to be noted that it is the judicial power of the people which is exercised ultimatelybythehighestCourtofthe
According to Article 3 of the Constitution of the Democratic Socialist Republic of Sri Lanka the sovereignty is still inthe
people and under Article 4 (c) "the sovereignty of the people shall be exercised and enjoyed in thefollowingmanner-"The
judicial power of the people shall be exercised by Parliament through Courts etc". A declaration by the highestCourtunder
the Administration of Justice Law passed in terms of the 1972 Constitution is reallythevoiceofthepeopleexercising
their judicial power and since the sovereignty continued to be in them even under the 1978 Constitution the binding forceof
the declaration of the highest Court continued until altered by the legislature or the Court of lastresortunderthenew
I therefore hold that alllaws,whetherwrittenorunwrittenwhichwereinforcebeforethecommencementofthe
Constitution except as otherwise provided in the Constitution continue in force and therefore the ratio decidendi in thetwo
cases under reference are binding on all Courts of subordinate jurisdiction among which is the Court of Appeal.
I have arrived at the above conclusion without seeking to interpret Article 168 (1) of the, Constitution of theRepublicof
Sri Lanka. By implication I have held that this Article is nothing more than a provision declaratory oftheexistinglegal
position and provided out of an abundanceof caution to ensure' the continuing binding force ofallruleswhichhadthe
force of law immediately prior to the new Constitution coming into force.
Dr. de Silva"s argument, however, if accepted would result in confusion in the legal sphere. It was such confusion whichthe
new Constitution sought to avoid in express terms, and I think this is a relevant consideration for this Courtwhenseeking
to interpret a provision of a Constitution.
Before I refer to Dr. de Silva's argument a few preliminary points must be made.
Article 12(1) of the 1972 Constitutionreads:
"Unless the National State Assembly otherwise provides, all laws written andunwritten,inforceimmediatelybeforethe
commencement except such as are specified in schedule A shall mutatis mutandis and except as otherwise expressly providedin
the Constitution, continue in force. The. laws so continuing in force are referredtointheConstitutionas"'existing
laws". The terms law and unwritten law are nowhere defined in the 1972 Constitution.Itspeaksof"alllawswrittenor
Article 168 (1) reads
"Unless Parliament, otherwise provides, alllaws,writtenlawsandunwrittenlaws,inforceimmediatelybeforethe
commencement of the Constitution shall mutatis mutandis, and except asotherwiseexpresslyprovidedintheConstitution
continue. in force".
Under Article 170
"Existing law" and "existing written law" mean anylawandwrittenlawrespectivelyinforceimmediatelybeforethe
commencement of the Constitution which under the Constitution continue in force".
It will be noticed therefore where under the 1972 Constitution all laws written and unwritten"aretobekeptinforce,
under the 1978 Constitution "all laws, written laws and unwritten laws" are to be kept in force. I cannot see anydifference
in substance between the two terminology.
Dr. de Silva however sought to write off the words "unwrittenlaws"andintheprocessallcustomarylawsandother
unwritten laws from Article 168 (1) merely on the ground that the word "law" isdefinedinArticle170as"anyactof
Parliament, and any law enacted by any legislature at any time prior to the commencement of theConstitution andincludes
He wanted us to apply this definition which only refers to written law to wherever the word "law"or"laws"appeared.His
whole argument was built on this single slender foundation.
If we agree with Dr. de Silva's interpretation then the words "laws" writtenandunwrittenlawsonlymean"anyactof
Parliament and any law enacted by any legislature at any time prior to the commencement of the Constitution andincludesan
Order-in-Council". Surely such an argument is fallacious.
The answer to Dr. de Silva's argument is that the words "all laws, written laws and unwritten laws'" areclearenough.The
description is meant to catch up:-all laws whether written or unwritten ortouseViscountRadcliffe'sdescription"The
existing corpus of law".
Article 168 of our Constitution and Article 12 ofthe1972Constitutionareprovisionswhicharederivedfromother
Constitutions in the Commonwealth and meant to meet similar situations.
Article 372 of the Indian Constitution brings out the realmeaningofArticle12and168(1)ofourtworespective
"Notwithstanding the repealby this Constitution of the enactments referred to in Article395butsubjecttotheother
provisions of this Constitution, all the laws in force in the Territory of India immediately before the commencement tothis
Constitution shall continue in force, therein until altered or replaced oramendedbyacompetentlegislatureorother
competent authority'". I see no difference in the meaning of
1 )"All laws written or unwritten" in Article 12 in our 1972 Constitution and
2) "All laws, written laws and unwritten laws" in Article 168 (1) of our 1978 Constitution and
3) "All the laws in force in the Territory of India" in Article 372 of the Indian Constitution. Theyallcarrythe
It is to be noted that we have first to give the words "all laws" a meaning. It will beridiculoustoseektounderstand
them by giving the word "laws" the meaning given to "law" in Article 170. "All laws" mean the whole body of laws.Thewords
"written laws and unwritten laws" only emphasise the comprehensive natureofthewords"alllaws".Thefirstquestion
referred to us by the Court of Appeal is "Do the above decisions of the Supreme Court constitutedundertheAdministration
of Justice Law No. 44 of 1973 belong to the category of "unwritten laws" within the meaning of Article 168 (1)".
Dr. de Silva's arguments as indicated above are,
1) Precedent does not make law as the judge's function is only to declare or interpret the law and
2) We must forget or ignore the words "Unwritten laws" because if we are to give the meaning of "law"inArticle170then
the words "unwritten laws" become meaningless. It would mean unwritten laws which are written.
I have given above the views of Jurists and Judges to support my view that the ratio decidendi of a decision ofthehighest
Court has a "binding force" or "coercive force" on all Courts of subordinate jurisdiction. Kelsen points out at page150in
his book "The General Theory of Law and State .... .. We have spoken here ofgeneralnormswhichoriginateinasingle
decision of Court. This kind of law creation must be clearlydistinguishedfromthecreationofgeneralnormsthrough
permanent practice of the Courts, i.e. custom". At page 246 of his book on Precedent inEnglishLaw,RupertCrosshasa
subtitle "Can the rules of Precedent be based on Precedents"? Under this title hediscussestheproblempeculiartothe
highest Court in the land. Do their earlier decisions have a binding force on them so thatonceapointisdecidedthey
cannot change it ? Here we find the need for certainty clash with the need for flexibility so thatthelawcankeeppace
with changes in society.
It is in regard to this problem that Basnayake C.J. said in Bandahamy V. Senanayake (supra) "I am in favour ofadoptingthe
South African view that the ultimate tribunal of a country should like the Privy Council be free to reverse its owndecision
if it finds that it is wrong. There is no danger in such a rule, seeing how rarely ultimateCourtsthatrecognisesucha
right reverse their own decisions. The policy of the Privy Council seems to me to be more enlightened than that of theHouse
of Lords. Law, like other things is not static and rigid adherence to previous views even when theyareoutofplaceand
cannot be reconciled with modern legal concepts does not foster development of legal thought. l am in entireagreementwith
Prof. Goodhart and other Jurists in England and other parts of the Commonwealth who favouralessrigidapproachtothe
doctrine than that adopted by the House of Lords or the Court ofAppealsincetheBristolAeroplanecase(10).Itis
difficult to reconcile the "perpetual process of change" in the common law with a rigid stare decisis".
Rupert Cross under the subtitle mentioned discusses the very problem to which Basnayake C.J. makes reference in BandahamyV.
He reminds us that the phrase "rules of precedent" has been used to include the rule that judicial decisions havetheforce
of law as well as the practices by which effect is given to the rule". He then states the problem as follows :
"The authority of all the rules of precedent to rank as binding rules of law cannot be based on precedent. A timemustcome
in the process of derivation when at least one of them has to be treated as ultimate unlessitcanbetracedtoamore
authoritative source. In the case of the English system of precedent the rule that a court is bound to follow a casedecided
by a Court above it in the hierarchy and the rule that the House of Lords is bound by its past decisionsareultimate.The
rest of the rules of precedent could, however, be derived from the above rules". The first rule referred to byhimisthat
judicial decisions have the force of law. According to Cross, therefore there can be no doubt of the fact that thedecisions
of the highest Court is binding on all Courts of subordinate jurisdiction. The problem reallyarisesinthecaseofthe
court of highest instance in respect of its past decisions. This is the reason, I think, that amongtherulestheSupreme
Court of Sri Lanka is empowered to make under Article 136(1) ofthepresentConstitutionisonewhichrelatestothe
"binding effect on the decisions of the Supreme Court".
Cross continues in his book at page 247
"This brings us to a sense in which all the rules of precedent may most emphatically be said to be based onprecedent.They
are all dependent on the practice of the Courts. No decision of the House of Lords that the House shall beinfuturebound
by precedent could rank as a precedent imposing that principle on the House, but itmaybeevidencethattheHousehas
adopted that principle or an announcement of a resolution to adopt it when it is supplementedbylaterevidencethatthe
House consistently accepts this principle we are in a position to say with confidence that this is the established rule.The
same is true of all the rules of precedent. All that is meant by the assertion thatoneofthoserulesisuncertainor
unsettled is that it has not been followed with a high degree of uniformity".
Cross continues at page 249, 'This brings us to the question whether legislation would be necessaryinordertofreethe
House of Lords from the fetters imposed by the House upon itself in London Street Tramways v. L. C. C. (11). Manymaythink
it unlikely that the House of Lords will change its practice of its own motion, but, so far as legal theoryisconcerned,
what would the position be if it were to do so? No superior rule of precedent would be infringed because the ruleinLondon
Street Tramways v. L.C.C. is ultimate so far as precedent is concerned. No statutoryprovisionwouldhavebeeninfringed
because there is no relevant statutory provision. The House of Lords wouldthereforeappeartohavedonenomorethan
announce a change of practice. But it may be argued that the change would be one for which no provision is made in ourlegal
system and which is unprecedented in the sense that there does not appear to have been a previousinstanceinwhichstare
decisis has been formally repudiated by an Appellate Court once that Court has fully accepted the doctrine".
Rupert Cross then comments on the view that legislation is the only means by which the effect of LondonStreetTramwaysv.
L.C.C. can be reversed under the English system as follows:
"The foregoing argument assumes that the rule that judicial decisions have the force of law does not entail apoweronthe
part of the judges to vary thepracticesbywhichthatruleiscarriedintoeffectoncetheyarefullysettled,
notwithstanding the tendency towards rigidity in our doctrine of precedent, it is doubtful whethertheassumptioniswell
founded. The better view seems to be that the rule that the House of Lords is bound by its past decisions is notpartofa
basic rule or ultimate principle of the English system but a practice controlled by that rule".
Rupert Cross concludes "When rules depend upon the practice ofthose who observe them and are inno sense laid down byany
one else, it is pointless to inquire whether they car be changed by practice. The only answer is "wait and see". In thecase
of the rules of precedent that means "wait and see what Parliament and the judges do".
This discussion by Rupert Cross as to whether the rules of precedent can be basedonprecedentisveryilluminatingand
brings out the relative importance and relevance of,
1) The rule that judicial decisions of the highest Court have the force of law and
2) The practices by which effect is given to the rule. In the case of the highest Court there being nohigherauthorityin
the judicial system it is the practice that matters. A practice that the previous decisions of the House of Lords isbinding
on the House of Lords was based on practice.
Since the publishing of Rupert Cross's-book the House of Lords has resolvedthattheyarenotboundbytheirprevious
decisions. No doubt they will only change an earlier decision in rare cases when they find compelling reasons fordoingso.
In fact all that has happened is that the House of Lords has announced a change of practice.Thefirstpartoftherule
whether decisions of the highest Courts are binding on Court which are not the highest remains unaffected.
The question we have to decide concerns the' first part of the Rule i.e., whether immediately before the commencement ofthe
new Constitution the ratio decidendi of the two decisions of the highest Court had a 'binding force' or 'coerciveforce'on
the subordinate Courts. If the answer is in the affirmative they came within the description of the law existingimmediately
before the new Constitution came into operation.
To ask whether the practice by which the Rule of precedent was given effect in this country was itself lawistoposethe
wrong question. It is not the question referred to us for our determination under Article 125 of the present Constitution.
Dr. de Silva strongly contended that it will-be wrong to compare the rules of precedent in the Indian Law with therulesof
precedent in Sri Lanka. We are referred to Section 212 of the Government of India Act 1935, which gave binding forcetothe
decisions of the Privy Council and Article 141 of the Indian Constitution which gives binding force to the decisions ofthe"
Supreme Court after the Appeals to Privy Council were abolished. The argument is thatinIndiatheLawofprecedentis
established by statute while in Sri Lanka we do not have corresponding statutory provisions.
The answer to this argument is twofold. First, it is wrong to say that in India the Law of Precedent isbasedonstatutory
provisions. Secondly, if the binding force of precedents have beenacceptedbyourCourtsconsistentlyitmattersnot
whether its acceptance is. based on statute or on practice.
Basnayake C.J. said in Bandahamy v.. Senanayake page 330, "India, being a country in whichthe influenceoftheEnglish
legal system has prevailed for well over a century, regards judicial precedents with the same veneration asEngland.Before
the establishment of the Federal Supreme Court the pre-independence period appeals from the variousHighCourtsconsidered
themselves as absolutely bound by the decisions of the Privy Council. The Federal Supreme Court was absolutely boundbythe
decisions of the Privy Council". 'The establishment of the Supreme Court of India in thepost-independenceperiodandthe
abolition of appeals to the Privy Council have caused no change except that the decisions of the Supreme Court nowbindthe
High Courts absolutely. The Supreme Court regards itself as bound by its own decisions subject to their beingoverruled,by
greater numerical strength".
Seervai says in his book on "Constitutional Law of India" at. page1020,"Even.independentlyofArticle141thesame
result would have followed from the Theory of Precedents which had become apart of Indian law. But Article 141removeseven
a theoretical doubt about the binding force of precedent".
In India appeals lay from the different states to the Court of last resort which was the Privy Council, and after appealsto
the Privy Council were abolished, the Supreme Court of India. It was therefore necessary to lay down thatthedecisionsof
the Court of last resort was binding on all the states irrespective of from which state the appeal was made. We donothave
such a problem in Sri Lanka. Our acceptance of the theory of precedent is based on the consistent practice of our Courts.
Up to the time of the coming into operation of the 1978 Constitution it wasthepracticefortheCourtsofsubordinate
jurisdiction in Sri Lanka to accept the binding effect of the ratio decidendi of cases decided by the Court oflastresort.
They recognised its coercive force on them. The principles relating to the theory of precedent accepted by thesevenjudges
as applicable to our country in 1960 in Bandahamy v. Senanayake have been acted on without a break up to the commencementof
the new Constitution. In 1960 we hada sovereign Legislature. We had travelled a long way from the "ColonialEra".Changes
in the structure of the Courts did not affect this practice.
In 1967 in Moosajee v. Carolis Silva (12) a bench of five judges similarly had acted onthebasis'thatthedoctrineof
stare decisis was part of our law and reference was made to Bandahamy v. Senanayake.
Even after the 1972 Constitution our Courts accepted the principle that the ratio decidendi of the highest Court was binding
on the subordinate Courts. The legislature after the 1972 Constitution did not alter the binding force of precedents nor did
the Supreme Court - The highest Court - seek to make rules under Section 15 of the Administration of Justice Law.
On the contrary the Supreme Court in 1972 in the case of Costa v. Jayatilleke (6) acted on the basis of the Theory of
Precedent which had prevailed in this country now for well over a century.
We have also to note that neither in the proceedings' before the Court of Appeal nor before us, was the positiontakenthat
these two decisions which gave the. occasion for the reference did nothaveabindingorcoerciveforceonCourtsof
subordinate jurisdiction immediately before the present Constitution came into operation.
The President of the Court of Appeal in his reference said, "Learned Counsel forthe3rdRespondentcontendedthatthis
Court being a Court not subordinate to the Supreme Court established under the Administration of Justice Law is not boundby
the decisions of that Court."
In my opinion the binding effect of the decisions of the highest Court or the CourtoflastresortonCourtsexercising
subordinate jurisdiction has been recognised and accepted long enough by our Courts even to acquire the force ofcustom.It
has been so recognised for more than a century.
It remains for me now to state formally our determination underArticle125oftheConstitutionofthetwoquestions
referred to us.
The ratio decidendi of the two decisions of the Supreme Court constituted under the Administration of Justice Law, No. 44of
1973 belongs to the category of "Unwritten laws" within the meaning of Article 168(1).
2) The Court of Appeal constituted under the present Constitution is neither a Court of subordinate jurisdiction nor aCourt
of co-ordinate jurisdiction to the Supreme Court established under the Administration of Justice Law No. 44 of 1973,because
such a comparison is not possible nor necessary to determine the first question referred to us. What isimportantinorder
to decide whether the ratio decidendi of the two cases is binding on the Court of Appeal, is the question whethertheCourt
of Appeal is a Court of subordinate jurisdiction under the present system of Courts. There can be nodoubtonthispoint.
The ratio decidendi of the two cases is binding on the Court of Appeal.
We direct that this determination be communicated to the Court of Appeal.
ISMAIL, J. - I agree.
WEERARATNE, J. - I agree.
SHARVANANDA, J. - I agree.
This is a Reference under Article 125 of the Constitution by the Court of Appeal to this Court for the determinationoftwo
questions relating to the interpretation of the Constitution. It arises from an applicationforawritofcertiorariby
Messrs Walker Sons & Co. (U.K.) Ltd., the petitioner, to quash the award made by the 1st Respondent to theapplication,Mr.
W. P, Gunatilleke, who was an arbitrator appointed by the Minister of Labour in terms of section4(1),IndustrialDisputes
Act (Cap. 131). For the purpose of this opinion it would be unnecessary to refer in any detail to thefactsortocertain
matters of a procedural nature relating to the course taken by this application from the time it was filedintheprevious
Supreme Court, to the time this Reference to us was made by the Court of Appeal. Briefly, 'it related toadisputebetween
the petitioner and the 3rd Respondent - a union of employees. After a stoppage of work by the members of the3rdRespondent
union, there had been certain incidents in which some union members were alleged to have been involved. TheCommissionerof
Labour, acting under powers given to him by the Emergency (Miscellaneous) Provisions and Powers Regulation No. 5 of 1974and
the Essential Services Order, had made an interim order regarding the employment of such workmen, pending thesettlementof
the dispute by arbitration. Thereafter, the Minister, acting in termsofsection4(1)oftheIndustrialDisputesAct,
referred the dispute for arbitration to Mr. J. G. L. Swaris. Mr. Swaris had commenced proceedings by sending outnoticesto
the parties. At that stage, the reference to Mr. Swaris was revoked by the Minister and a second reference wasmadetothe
1st Respondent, Mr. Gunatilleke. Mr. Gunatilleke, after due inquiry, has made an award. The petitionerseekstohavethis
award quashed on the ground of lack of jurisdiction.
The Petitioner has based his application on two decisions of theSupremeCourtestablishedundertheAdministrationof
Justice Law, No. 44 .of 1973. They are Nadaraja Ltd. (in voluntary liquidation) v. N.Krishnadasan(1)andanunreported
decision -S.C. Application No. 460/75 delivered on 7.7.76, in which I myself participated. The ratio decidendi ofthesetwo
decisions is that, once a reference is made, the Minister has no power to revoke that reference andrefer the disputeagain
to another arbitrator. Counsel for the Petitioner has sought to argue that those decisionshaveabindingeffectonthe
Court of Appeal and consequently would determine the outcome of the application. The Court of Appeal while dealing withthis
submission found that certain auxiliary matters had arisen forconsideration,whichinvolvedtheinterpretationofthe
Constitution. In terms of Article 125, the interpretation of the Constitution is left solely to the SupremeCourt,andthe
Court of Appeal has accordingly referred those matters to us for decision.
The two questions referred to us are -
"(1) Do the above decisions of the Supreme Court constituted under the. AdministrationofJusticeLaw,No.44of1973,
belong to the category of 'unwritten law' within the meaning of Article 168(1) ?
(2) Is the Court of Appeal constituted under the present Constitution a court of subordinate jurisdiction or a Courtofco-
ordinate jurisdiction to the Supreme Court established under the Administration of Justice Law,No.44of1973,forthe
purpose of the application of the principle of stare decisis ?"
It would be apparent that though these questions have been formulated In this' manner,thequestionbeforetheCourtof
Appeal was the binding effect of the two decisions referred to on the Court of Appeal as stare decisis.
Mr. Jayewardene for the petitioner has submitted that stare decisis has admittedly been apartofourlawsinceBritish
times and that both the 1972 Republican Constitution and the present Constitution of 1978, byappropriateprovisions,have
provided for the continuation of this doctrine. It is his contention that it subsists today and that it should be appliedin
the matter before the Court of Appeal. In reply, Dr. Colvin R. -de Silva hasraisedcertainfundamentalquestions,ofa
constitutional nature and has contended that the doctrine of stare decisisas understoodintheearlierlaw,nolonger
forms part of the present law of this country. It is necessary to address ourselves first to theseimportantconstitutional
questions before we deal with the less important matters.
Our constitutional development is well known and does not require any detailed recital. This country wasadministeredasa
colony during the early period of British occupation. Since the turn of the century, agitation forself-governmentresulted
in progressive constitutional developments leadingfinallytoindependencein1948.Thoughindependent,thiscountry
continued both in law and theory to regard the person who was the monarch in the U.K. as the Lawfully constituted monarchof
this country. In lbralebbe v. The Queen (5) the Privy Council, overruling the view ofourSupremeCourt,heldthatthe
Privy Council was not a pre-independence relic but had the righttocontinueasourhighestCourtnotwithstandingour
attaining independence.' It was only in 1972 that we severed these links with the U.K.andadoptedaRepublicanformof
The 1972 Republican Constitution had many radical or revolutionary features. The mostsignificantwasthechangefroma
monarchy to a Republican form of Government.Thischangeinvolvedacompletebreakwiththepreviousconstitutional
connections we had with the U.K. and was effected by proceduresnotonlyoutsidetheprocedurescontemplatedbythose
constitutional documents but also in spite of them. The Constitution was of pure indigenous growth ''deriving itspowerand
authority solely from the People", as stated in the exordium and repudiated any continuity or connectionwiththeprevious
Soulbury Constitution. It was Dr. de Silva's contention that these revolutionary features, had the effectofsweepingaway
all rules and practices that were inconsistent with the new grundnorm - namely thisRepublicanConstitutionwithitsnew
Mr. Jayewardene referred us to a passage in Kelsen, "The Pure Theory of Law" at page 209, where theauthordealswiththe
function and effect of the basic norm when it is changed by revolution. Kelsen uses the term "revolution" in the broadsense
to include even a coup d'etat He states :
"Usually a revolution abolishes only the old Constitution and certain politically important statutes. Alargepartofthe
statutes created under the old constitution remains valid as the saying goes: but this expressiondoesnotfit.Ifthese
statutes are to be regarded as being valid under the new Constitution, then this is possibleonlybecausetheyhavebeen
validated expressly or tacitly by the new Constitution. We are confronted here not with a creation of new lawbutwiththe
reception of norms of one legal order by another, such as the reception oftheRomanLawbytheGermanLaw.Butsuch
reception too is law creation, because the direct reason forthevalidityofthelegalnormstakenoverbythenew
revolutionary established Constitution can only be the new Constitution. The content of thesenormsremainunchanged,but
the reason for their validity, in fact the reason for the validity of the entire legal order has beenchanged:Asthenew
Constitution becomes valid, so simultaneously changes the basic norm, that is, thepresuppositionaccordingtowhichare
interpreted as norm creating and norm applying facts the Constitution creating fact and the factsestablishedaccordingto
Suppose the old Constitution had the character of an absolute monarchy and the new one ofaparliamentarydemocracy.Then
the. basic norm no longer reads 'Coercive acts ought to be carriedoutundertheconditionsaridinthemanner as
determined by the old, no longer valid constitution' and hence by the general and individual normscreatedandappliedby
the constitutionally functioning monarch and the organs delegated by himinstead, the basicnormreads:'Coerciveacts
ought to be carried out under the conditions and in the manner determined by the new Constitution' and hence bythegeneral
and individual norms created and applied by theParliamentelectedaccordingtothatConstitutionandbytheorgans
delegated in these norms. The new basic norm does not make it possible- like the old one - to regard a certain individualas
the absolute monarch but makes it possible to regard a properly elected parliament as a legalauthority.Accordingtothe
basic norm of a national legal order, the government which createseffectivegeneralandindividualnormsbasedonan
effective Constitution is the legitimate government of the state."
As I understand this, it means that if the basic norm of a State is changed, then the entire legal order of thatStatefrom
top to bottom would be affected. The previous laws of the State cannot continue in force unlesstheConstitutionexpressly
provides for it, but those laws which are in conformity with thebasicnormwouldsurvivederivingtheirvalidityand
reason from the new basic norm.
The effect of the constitutional changes on the court structure needs somecomment.Justpriortotheadoptionofthe
Republican Constitution, the then Government, by Act No. 44 of 1971, abolished appeals to the Privy Councilandsubstituted
in its place a Court of Appeal established in this country and manned by citizens of this country. This was a fore-runnerto
the sweeping constitutional and structural changes the Government was then contemplating. The RepublicanConstitution,when
it was brought into effect soon after, allowed the old Court structure to continue for the timebeing,untiltheNational
State Assembly could devote its attention to it. But the Constitution made itplainthathencefortheventheoldCourt
structure would function under the Constitution and derive its jurisdiction and powers solely from the Constitution,thereby
severing it from its historical moorings - Article 121(2).
Soon after, in 1974, the existing Courtstructure was almosttotally replaced byanewone,bytheAdministrationof
Justice Law, No. 44 of 1973, thus completing the process of change. By the repealoftherelevantlegislation,themain
Courts including the then Supreme Court were swept away and there was substituted an entirely new, two-tiercourtstructure
with the High Court and the other original courts forming the first tier and a new Supreme Courtwithappellatepowersas
the final and ultimate court in the hierarchy. It would be observed that the previous right of a litigant to gosuccessively
by way of appeal from the original court to the Supreme Court and from there to the Privy Council(oritssubstitute,the
Court of Appeal) was cut down to a single appeal to the Supreme Court.
The changes that took place in 1971, 1972 and 1973 were undoubtedly changes of a radical nature both in the structure ofthe
Courts and in what Hans Kelsen has called the basic norm. Did stare decisis, as then operating withanessentiallyEnglish
background and having a strong English common law flavour, survive these upheavals to continue in that sameforminanew
hierarchy of Courts ? It may be mentioned that until 1971 the Privy Council occupied the apex of our judicialstructureand
dominated the legal scene. The whole doctrine of stare decisis hinged on this exalted tribunal. The Court of Appealof1971
was clearly a temporary feature. Without any disrespect to the Privy Council and notwithstanding the respect we have forthe
excellence of its work, it would not be unfair to say that the Privy Council occupied a position in theU.K.closetothe
centres of power. It is therefore to be expected that however much they may, have desired, it was natural forthemtolook
at these problems with English eyes and with a U.K. point of view. If the main objects of staredecisisistoensurethe
certainty and predictability of the law, in the present context it could beargued that thismaymeanthecontinuedand
rigorous application of the old law with the likelihood that we may be tied to a past in too greatameasure.Ihave,in
passing, referred to the Privy Council only to indicate the full dimensionsof stare decisis as itoperatedinthepast,
its implications forthe future, and to indicate how closely it was connected to that court structureandbasicnormand
was expressive and affirmative of them. The continuation of stare decisis in the manner suggested to us would notmerelybe
the survival of a principle, but also carrythe weight of its past application and the validity of that applicationsubject
only to future modification which may be permissible under that principle.
In the face of these facts, it is difficult to say that the changes of the 1972 period have not beenofaradicalnature,
and I am inclined to the view that the doctrine of stare decisis, in the form it hadoperatedtillthen,couldnothave
survived this, change. Further reasons for this view will emerge later in this opinion. For Mr. Jayewardenetosucceed,he
must establish the continuation of the doctrine of stare decisis not only with the constitutional change of 1972 but alsoof
1978. If, as I have held, the doctrine was not carried over in 1972, the fact that during the intervening period 1972-78the
Courts followed precedents or adopted their own practice of stare decisis within that hierarchy of Courts would be oflittle
avail to the petitioner. Similarly, even if the provisions intheDemocraticSocialistRepublicanConstitutionof1978
support Mr. Jayewardene's arguments, it cannot help him to tide over the initial obstacle referred to above.
I shall however proceed to deal with his arguments, because this discussion will bring to light the real issue inthiscase
and will also help to understand the conclusion l have come to onthisReference.Mr.Jayewardenesubmittedthatstare
decisis whichhe implied was unwritten law, was carried forward by Article 12 of the RepublicanConstitutionof1972and
Article 168 of the Democratic Socialist Republican Constitution of 1978. I needonlydealnowwithArticle168ofthe
present Constitution. Article 168(1) of the present Constitution is to the following effect:
"Unless Parliament otherwise provides,alllaws,writtenlawsandunwrittenlaws,inforceimmediatelybeforethe
commencement of the Constitution, shallmutatis mutandis, and except as otherwise expressly providedintheConstitution,
continue in force".
The petitioner has contended that the practice of stare decisis fallswithintheexpression"unwrittenlaws".Itwould
appear that it is on this basis that the Court of Appeal has also formulated the first question ofthisReference.Dr.de
Silva has however referred us to the definitions contained in ChapterXXII,whichrelatesto"Interpretation",andhas
argued that in view of thespecific meaning given to the term "law", the reference to unwritten lawinArticle168(1)is
thereby rendered otiose and of no value. The effect of his argument is that unwritten laws have not been carried over bythe
new Constitution and a provision which sought to do this is nullified by another provision.
There would be some substance in Dr. de Silva's argument if we were to look at the matter in the narrow and pedanticwaywe
have been asked to approach this matter. But we must remind ourselves thatwearedealingwithaConstitution.Hehas
invited the Court to declare that an important provision in the Constitution is otiose and renderednugatorybecauseofa
subsequent inconsistent provision. It is a well-known principle that, in interpreting a Constitution,meretechnicalrules
should not be allowed to stand in the way if their, application would result in the impairment of theConstitutionoflead
to administrative difficulties. The effect of Dr. de Silva'ssubmissionisthatintheapparentconflictbetweentwo
provisions, the more significant one should be rendered void. It is our duty to see that every provision of theConstitution
is, as far. as possible, given effect to. An analysis of the relevant provisions indicates that these provisions arecapable
of an alternative construction which would ensure the validity of every part and provision of the Constitution.
According to the arrangement of the words - and both counsel conceded this - the "laws'" continuedinforceunderArticle
168(1) are laws, both written and unwritten. This, to my mind, is the totality of the law of this country. So that"existing
laws" - in so far as the arrangement in the Constitution goes- consist ofthe"existinglaw"intheformof"existing
written law" and the "existing law" in the form of "existing unwritten law'", together making up the entirecorpusoflaw.
In my view, the fourth item in Article 170 merely seeks to define "existing law" in the form of "existing written law".That
is why the two expressions are used together in this definition as if they have been equated and the definitioncoversboth
of them at the same time. Its wording gives no indication that it refers to "unwritten law". It deals only with writtenlaw.
What the last item and the sixth item in Article 170 seek to do is to break down the expression "existing writtenlaw"into
two successive components, viz., first into "written law" and then into "law" in that expression ''written law". It isclear
that these two latter expressions dealonly with "writtenlaw'andisobviouslyreferabletotheearlierexpression
"existing written law". This construction is consistent with Article 168(1), wheretheframersoftheConstitutionhave
clearly provided for the continuance of unwritten laws. The contrary view contended forbycounselrendersnugatorythis
express provision of the Constitution and would result in taking away the application of the whole of theunwrittenlawof
this country which governs such a large sphere of the day to day life of our people. When two provisions of theConstitution
are in apparent conflict, the court should lean towards a construction that would reconcile theconflict.Inmyview,to
give a limited and particular meaning to the word "law", which is a word of indefinite meaning,willmakeitinconsistent
with the express provisions of Article 168 and should therefore berejected.Iknowofnoprincipleofconstitutional
interpretation that would allow the writing off of an important provisioninthemainbodyoftheConstitutionmerely
because a definition in the Interpretation. Article indicates one of two meanings. Iftwoconstructionsarepossible,we
should adopt the one that does not lead to absurdity and practical inconveniencenor should weproceedontheassumption
that a conflict or repugnancy between different parts of the Constitution was intended by the framersoftheConstitution.
Mohideen v. State of U. P.(13) King vs. Barger, (14) Attorney GeneralforOntariov.Attorney-Generalforthe
Dominion, (15). In this connection I am constrained to remark thatthesedefinitionsfallshortofthatprecisionand
accuracy which one expects to find in a Constitution, and it is not surprising that Dr. de Silva was able totakeadvantage
of these provisions. The Government would be well advised to consider a satisfactory amendment of thesedefinitionstoput
its intentions beyond any doubt.
While agreeing with Mr. Jayewardene that unwritten laws are carried over bythepresentConstitution,hemustmeetyet
another issue raised by Dr. de Silva. It was Dr. de Silva's contention that stare decisis was not law, butamereruleof
practice of the Courts and that that practice would disappear with the disappearance of theparticularcourtstructureto
which it was wedded. If this contention is correct, Article 168 would be of no avail to the Petitioner,astheterm"law"
would not include a mere practice of the Courts. To answerthisquestion,ananalysisandexaminationoftheconcept
embodied in this expression stare decisis is now necessary.
Stare decisis is the special mode in which legal precedents are employed by the English common law. Precedents aremadeuse
of by Judges in practically all systems of law. A precedent may be defined as a previous instance or case which is or maybe
taken as an example or rule for subsequent cases. The peculiarity of the English common law is that a precedent isregarded
is creating a legal principle - or ratio decidendi - and that legal principle is held,bythepracticeobtaininginthe
Courts, to be absolute and binding on all Courts in a given hierarchy. This water-tight application of this doctrineisits
principal feature. It is a relatively modern doctrine and took the present form and shape only in thelastcentury.Itis
more or less peculiar to the English common law system. It mustbeconcededthatthisprincipleordoctrineofstare
decisis has been received and adopted in this country, with modifications, duringthecolonial.period-Bandahamyv.
It will be observed that the principle of stare decisis embodies two features. First, that the principle onwhichthecase
was decided - called-the ratio decidendi - constitutes "law", and second, the practice in a system of courts toregardsuch
a decision as authoritative and binding on all the subordinate courts inthat system. It would be apparent that thissecond
factor is extraneous to. the actual inter partesdecision(RupertCross,"PrecedentsinEnglishLaw",p.247 Dias,
Jurisprudence", 3rd Edn., p 45). Most of the texts anddecisionscharacterisestaredecisisasadoctrine,principle,
practice, maxim or policy. The stress here, no doubt, is on the second feature referred to above. Chief Justice Basnayakein
Bandahamy v. Senanayake (supra) was inclined to call it a doctrine. Atone place in the judgment, he describes it as"...this
doctrine or principle as some choose to call it in England", and he concludes by stating that :'Wehaveinthiscountry
over the years developed a cursus curiae of our own'", and proceeds to summarise those principles.