Legal Services and Laws of Sri Lanka

SLR-1981 Vol.2-P147

SLR - 1981 Vol.2, Page No - 147





C.A. L/A APPLICATION 20/81 -D. C. COLOMBO 14125/L.

C. A. APPLICATION 211/81 - D. C. COLOMBO 14125/L.

MARCH 5,9,1981.
Attorney- General-Origins of office-Powers and functions of the holder of such office-Attorney-at-law-Righttoappearin
court- Whether Attorney-General entitled to appear in Court asanattorney-at-lawinhisprivatecapacity-Preliminary
objection taken to such appearance before the Court of Appeal-Powers of Court toregulateitsproceedings-JudicatureAct,
No. 1 of 1978, sections 11, 15, 41, 47, 51-Code of Criminal Procedure Act, No. 15 of 1979- Civil Procedure Code,asamended
by Laws Nos. 19 and 20 of 1977, Part IV and section 839 -Constitution of the Republic of Sri Lanka, 1978, Arts.13(3),14
(1) ( g ), 54, 61, 77, 125, 134, 169 (12).

The two applications before the Court of Appeal were for leave to appeal against, and revisionof,anordermadebythe
learned Additional District Judge of Colombo on 20.2.1981 refusing an application made by theLandReformCommission,the
defendant-petitioner, for the discharge and dissolution of an enjoining order. This order had been made upon theapplication
of the plaintiff-respondent (a private company claiming to be owner of certain estates) against the defendant-petitionerand
its servants and agents restraining them from interfering with the plaintiff-respondent's rights of managementofthesaid
estates. The Land Reform Commission was a statutory Corporation established by the Land Reform Law, No. 1 of 1972, whichwas
a Law enacted inter alia to fix a ceiling on the ex tent of agricultural land that a personcouldownandtovestlands
owned in excess of the ceiling in the Commission.

After these applications were taken up and the appearances for the respective parties weremarkedapreliminaryobjection
was taken on behalf of the plaintiff-respondent that as senior counsel, who had markedhisappearanceforthedefendant-
petitioner in his private capacity as an attorney-at-law, was the holder of the office of Attorney-General under thepresent
Constitution of Sri Lanka, he could not as long as he holds such office appear before the Courts of theRepublicexceptin
his capacity as Attorney-General. On a clarification being sought by seniorcounselfortheplaintiff-respondent,senior
counsel for the defendant-petitioner had categorically stated that he and his two juniors, alsoofficersoftheAttorney-
General's Department, were appearing in this case in their private capacities as attorneys-at-law, instructedbytheLegal
Officer of the Land Reform Commission. The Court of Appeal reserved judgment on the preliminary objection.

(1) Having regard to the functions, powers and duties attached to the office of Attorney-General by tradition as wellasby
statutory provisions both in the past and at present, the holder of the said office under thepresentConstitution(1978),
could appear before the Courts of the Republic only in his capacity as Attorney-General and accordinglycouldbeheardby
the Court of Appeal only in that capacity. The preliminary objection must be upheld.

(2) The Courts have an inherent power to regulate the proceedings before them, unless there isexpressstatutoryprovision
to the contrary, and accordingly have the discretion to decide who would be permitted to represent before the Courtaparty
who has a right to be heard in such Court. In the present case as the holderoftheofficeofAttorney-Generalwasnot
appearing in that capacity, the Court could rule that he could not be heard as an attorney-at-law and for a party otherthan
the State or any other person for whom he could appear in his official capacity as the Attorney-General.

Per Ranasinghe, J.
"A careful consideration of the provisions of the Constitution and also the other statute law referred toaboveshowsthat
the Attorney-General is one of the very few, if not the only one of officers appointed under theConstitutionwho,inthe
exercise of the functions and duties attached to the office he holds, comes into direct contactwithallthreeorgansof
Government-the Parliament, the President of the Republic and the Courts-through whom the sovereignty of the people, whichis
enshrined in and is recognized and guaranteed by the Constitution, is exercised. Whateversuchanofficersaysanddoes
should always be said and done in his official capacity and for and on behalf of the people of the Republic-notforandon
behalf of any one person or a group of persons only. It seems to me that the very appearanceofanofficerofsuchhigh
standing even in his personal capacity, for a private party would seem to be oppressive totheotherpartytoaprivate
suit. The appearance of such an officer even though it is in his private capacity is bound to carry with it, eventhoughit
may be quite unwittingly and imperceptibly the full weight of the authority of his official position and instil inthemind
of the opposing party the thought that he has been placed at a disadvantage and that the other sidehasobtainedanadded
advantage over him. Even though such an appearance may not in fact secure for the party for whomsuchofficerappearsany
undue advantage, yet the thought or belief that would be entertained by the other partycannotbeshruggedoffasbeing
altogether unreasonable and baseless."
Per Victor Perera, J.
"On an examination of these provisions it is clear that the Attorney-Generalholdsauniquepositionendowedwithwide
powers, onerous duties and special rights in regard to matters involving the exercise of the Sovereignty of the Peopleunder
the three limbs-
(1) Executive Power of the People
(2) Legislative Power of the Peopleand
(3) Judicial Power of the People.
The significance of this fact is that, unlike in England where the Queen is the SovereignintheRepublicofSriLanka,
Sovereignty is in the People in terms of Article 3 of the Constitution and the Attorney-General represents and actsforthe
People of the Republic."

Cases referred to
(1) Dahanayake v. D. G. Albert de Silva et. al., (1978-79) 1 Sri L. R. 41.
(2) Trendtex Trading Corporation Ltd. v. Central Bank of Nigeria, (1976) 1 W. L. R. 868(1976) 3 All E. R.437 (1977)Q.
B. 529.
(3) Trendtex Trading Corporation Ltd. v. Central Bank of Nigeria, (1977) 1 All E. R. 881(1977) 2 W L R. 356 (CA).

(4) Le Mesurier v. Layard, (1898) 3 N. L. R. 227.

(5) Re Moragodalianage Peris Perera, (1880) 3 S. C. C. 161.

(6) Perera v. White, (1900) 4 N. L. R. 209.
(7) Vettivelu v. Wijeyeratne, (1956) 60 N. L. R. 442.

(8) O'Toole v. Scott, (1965) 2 All E. R. 240(1965) A.C. 939(1965) 2 W. L. R. 1160.

(9) Collier v. Hicks, (1831) 2 B. and Ad. 663.

(10)Simms v. Moore, (1970) 3 All E. R. 1(1970) 2 W.L.R. 1099.

(11)Re S. (a barrister), (1969) 1 All E.R. 949: (1969) 2 W.L.R. 708.

(12)Attorney-General of Gambia v. N'Jie, (1961) 2 All E.R. 504 60 C.L.W. 71(1961) A. C. 617(1961) 2 W.L.R. 845.

(13)Frazer v. Queen's Advocate, (1863-68) Ram. Reps. 316.

(14) D. M. Jayawardena v. Juanis Fernando, (1881) 4 S.C. C. 77.

(15)Attorney -General v. Don Sirisena, (1968) 70 N.L.R. 347.

(16)Attorney-General v. E. P. Samarakkody and Another, (1955) 57 N.L.R. 412.

(17)Attorney -General v. Saibo, (1912) 15 N.L.R. 204.

(18)Le Mesurier v. The Attorney -General, (1906) 10 N.L.R. 67.
APPLICATIONS for leave to appeal from and to revise an order of the District Court, Colombo.

Shiva Pasupati, with K. M. M. B. Kulatunga and Suri Ratnapala, for the defendant-petitioner.

H. W Jayewardene, Q.C., with C. Ranganathan, Q.C., H. L. de Silva, K. N. Choksy, Romesh de Silva and Lakshman Perera, for
theplaintiff -respondent.

April 10, 1981.
On 21.1.1981 the plaintiff-respondent instituted proceedings in the District Court of Colombo, in case No.14125/L,against
the defendant-petitioner praying for: an order directingthedefendant-petitioner,itsservants,agentsandallthose
holding under it to hand over the management of the lands referred to in the first schedule totheplaintandwhichwere
said to belong to the plaintiff-respondent: an interim injunction preventing and restrainingthedefendant-petitioner,its
servants, agents and those holding under it from interfering in any way with the plaintiff-respondent's rightofmanagement
of the said estates until the hearing and the determination of this action.

Upon the application for the interim injunction being supported, the District Court made order, on31.1.81,issuingnotice
of the said application upon the defendant-petitionerand the learned Additional District Judge also proceeded toissuean
enjoining order, preventing and restraining the defendant-petitioner and its agents and servants, as prayedfor,tobein
operation until the disposal of the application for the interim injunction.Thereafter,on6.2.81thedefendant-petitioner
made an application praying, inter alia, for the discharge and dissolution of the said enjoining order. After inquiry,order
was made by the learned Additional District Judge on 20.2.81 refusing the said application.

The defendant-petitioner, thereupon, filed on 23.2.81 two applications before this Court : Application No.20/81forleave
to appeal to this Court against the said order, dated 20.2.81, in terms of the provisions of the Civil Procedure Code:and
Application No. 211/81 to have the said order, dated 20.1.81, revised by this Court.

When these matters were taken up before this Court on 5.3.81,theappearancesfortherespectiveparties-thedefendant
petitioner, and the plaintiff-respondent- were marked as set out above. Thereupon Mr. Jayewardene, Q.C. soughtclarification
as to whether Mr. Pasupati, who is presently the holder of the office ofAttorney-General,appearsinthiscaseinhis
official capacity or not. Mr. Pasupathi's clear and categorical reply was that he and histwojuniorswhoarealsoboth
officers of the Attorney-General'sDepartment,appearinthiscase,forthedefendant-petitioner,intheirprivate
capacities, as ordinary attorneys-at-law. Mr. Pasupati did also atthesametimeproceedtomakeastatement,which,
however, is not relevant at this stage, but which would be referred to by me at a later stage of this order.

Upon Mr. Pasupati so clarifying his position, Mr. Jayewardene, Q.C.informedthisCourtthatheproposestotakethe
following preliminary objection, on behalf of the plaintiff-respondent: that, asMr.PasupatiholdsofficeasAttorney-
General under the present Constitution of the Republic of Sri Lanka he cannot, solongasheholdssuchoffice,appear
before the Courts of the Republic except in his capacity as Attorney-Generaland that, therefore, hecannotinthiscase
appear in his private capacity as an attorney-at-law, for the defendant-petitioner. Mr. Jayewardene, Q.C. made it clearthat
this objection was only in respect of the appearance of Mr. Pasupati in the capacity in which he seeks to appear and wasnot
in this case directed against Mr. Pasupathi's juniors. The sum and substance of hissubmissionis:thattheofficeof
Attorney-General is a very high and exalted office under the Constitution : the holder of such officehastoperformboth
under the Constitution, and under certain other statutes functions which are of a very responsible and solemn nature:that
he is the chief adviser, on all legal matters to the Government : thatbytraditiontootheofficeofAttorney-General
carries with it certain function and privileges which are not accorded to any other member of the legal profession- e.g.the
Attorney-General is accepted as the head of the Bar- of both the official and unofficial- isaccordedaspecialplaceof
honour, both at ceremonial sittings of the Supreme Court and at meetings of the Bar Council: that the Attorney-Generalought
to appear before the courts only in his capacity as Attorney-General : that, having regard to the natureofthefunctions,
powers and duties attached to the office of Attorney-General, both by law and by tradition, itwouldbeimproperforthe
holder of such office to appear before a court in his private capacity, as any other attorney-at-law : that acourthasan
inherent right to regulate its own business, and, in the exercise of such power, a court can and must refuse to hear suchan
officer, who should, in view, inter alia, of the constraints of the office, which he himself has voluntarilyaccepted,only
appear in his official capacity, if and when he seeks to appear before the court in any other capacity.

Mr. Pasupati, however, maintained that he is entitled to appear before this Court inhisprivatecapacity.Hemaintained
that, so long as he is an attorney-at-law who has taken his oathsasanattorney-at-lawundertheConstitution,heis
entitled, under the provisions of section 41, Judicature Act, No. 2 of 1978, to appear before any court of thisRepublicas
an attorney-at-law, and, as such, he is entitled to the right of audience set out in the provisions of Article169(12)of
the Constitution. The fact that he is also the Attorney-General does not detract from his right to appearandtobeheard
purely in his capacity as an attorney-at-law. He strenuously maintained that there is no legal impedimenttohisappearing
also as an attorney-at-law and that, so long as there exists no such legalimpediment,hecouldalsoappear,ifheso
desires, in his private capacity for a client before any court of this Republic. Hemaintainedthatthequestionofthe
propriety of his conduct in so appearing does not arise so long as, as already stated, there is no express legalprohibition
against his appearance, in his private capacity. The question of propriety,hemaintainedisentirelyamatterbetween
himself and the proper professional disciplinary authority, and is not a matter for consideration by this Court.

Mr. Pasupathi laid great emphasis upon the argument that there is nolegalimpedimenttohisappearinginhisprivate
capacity and that so long as there is no such legal impediment this Court cannot and should not deny him a hearing.

I shall, before proceeding to consider the respective arguments put forward at the hearing,disposeoftwomatterswhich
were referred to by Mr. Pasupathi in the course of his submissions and a referencetooneofwhichhasalsobeenmade
thereafter in the written submissions made on behalf of thedefendant-petitioner.Mr.Pasupathi,inthecourseofhis
submission, did state that he is appearing in this case for the defendant-petitioner upon a direction giventohimbythe
Head of the State. The impression that I formed then was that this statement was made by Mr. Pasupathi inordertosupport
the propriety of appearing the way he is appearing in this case. That a Head of aState-particularlyanelectedexecutive
Head of State-would, in certain situations, consider it necessary to direct the chief legal adviser to the Governmenttogo
into court in order to protect the interests of the State is not anything unusual or unnatural under a Constitutionsuchas
the Constitution of 1978. If and when such a direction is given, it appearstomethatitisfortheAttorney-General
himself to decide how best he should set about it, having due regard both to therelevantexpressprovisionsoflawand
tradition. Be that as it may, any such direction is, in my opinion, not relevant for the purposeofconsideringtheissue
arising out of the preliminary objection taken in this case. Mr. Pasupathi did also at one stage during his oralsubmissions
in reply to Mr. Jayewardene, Q.C. cite the judgment of His Lordship the Chief Justice in the caseofDahanayakev,D.G.
Albert de Silva et al. (1), and seek to argue that the party for whom he is seeking to appear is no ordinarypartylitigant
but an agency of the State. Mr. Jayewardene, Q. C. did, in his reply, draw the attention of this court to the factthatthe
decision in the English case of Trendtex Trading Corporation v. The Central Bank (2), referred to bytheChiefJusticein
that case had, even by then, been set aside in appeal by the Court of Appeal (3) and that this fact doesnotseemtohave
been brought to the notice of the Chief Justice. Mr. Jayewardene, Q.C. further submitted that ' although leave toappealto
the House of Lords had been granted by the Court of Appeal, the appeal does not seem to have been prosecuted andthatthere
is nothing to show that the judgment of the Court of Appeal has been setaside.Atthehearingofthisapplicationno
further submission were made thereafter by Mr. Pasupathi in regard to this matter, although in the writtensubmissionsonce
again this position has been adverted to. I do not think it necesary for me to embark upon anexaminationofthequestion
whether or not the defendant-petitioner is or is not an agency of the State, for the simplereasonthat,ifitis,then
there would be no question about the right of the Attorney-General to appear for the defendant-petitionerinhisundoubted
capacity as Attorney-Generalyet, Mr. Pasupathi, the Attorney-General, does not so seek to appear but insistsonappearing
in his personal capacity. Hence I do not think that this matter should detain me any further.

The origin of the office of Attorney-General could be traced back to the office of "Advocate Fiscal" which wasinexistence
under the Dutch towards the latter stages of their rule in this Island, and which officecontinuedevenduringtheearly
years of British occupation until the year 1834 when the name was changed to that of "King's Advocate". This designationwas
thereafter changed, in the year 1883, by the provisions of Ordinance 1 of 1883, to the present day appellation of"Attorney-
General". Bonser, C. J. in the year 1898, in the case of Le Mesurier v. Layard (4), at p. 230 observed that:

"The present Attorney-General is the lineal successor of the old Advocate Fiscal, and just as in old days action againstthe
Government was brought against the Advocate Fiscal as representing the local "Fisc" or Treasury, so they may nowbebrought
against the Attorney- General."

Furthermore, the judgments of Cayley, C. J. and of Clarence, J. in the case of Moragodaliyanage PerisPerera(5),doshow
that the Queen's Advocate was the principal law officer of the Government in all criminal matters aswell.Thedevelopment
of the office of Attorney-General in this Island thereafter under the British could be followedthroughthepagesofthe
Reports of the Donoughmore Commission of 1928 and of the Soul bury Commission of 1945. At page 107 para 401 of the Soulbury
Commission Report it is stated :

"We have already recommended that the A.G. should be charged with the duties now carried out bytheLegalSecretaryunder
this heading. We envisage that, under the Constitution we recommended, Ministers will require legalassistancein(a)the
day-to-day running of their departments, (b) the passage of Bills through Parliament, especially at the Committee stage,(c)
the interpretation of existing laws and the departmental matters which may involve legalproceedings,and(d)mattersof
high constitutional policy, on which the Cabinet as such require advice".

The Ceylon (Constitution) Order- in-Council 1946 (Cap. 379)whichcameintooperationthereafterin1947hadcertain
specific provisions relating to the Attorney-Generale.g., the appointment of the Attorney-General bytheGovernor-General
(Sec. 60) : that the Speaker should, before giving his certificate to certain specified Bills, consulttheAttorney-General
or the Solicitor General. (Secs. 33 (2) and 34 (2) ).

Then came the first Republican Constitution of 1972. This Constitution provided for the appointment oftheAttorney-General
by the President of the Republic (Article 108 (b))and also contained certain specific provisions relating to the dutiesof
the Attorney-General: duties pertaining to the examination of and the communication of his opinion to the Speakerinregard
to certain Bills, which have been published and the amendments proposed to such Bills (Article 53): the right to be heardon
all matters before the Constitutional Court (Article 63).

The present Constitution, which has been in operation from September, 1978, too contains provisions relating to the Attorney-
General: the appointment by the President of the Republic (Article 54): the taking (or making) and subscribingoftheoath
(or affirmation) set out in the 4th Schedule before entering upon the duties of his office (Article 61): duties in regardto
published bills (Article 77): the right to be heard in all proceedings in the Supreme Court in the exerciseoftheSupreme
Court's jurisdiction in respect of constitutional matters, of Bills both ordinary and urgent, of theinterpretationofthe
Constitution, of Fundamental Rights, of the expression of opinions at the request of the President oftheRepublicandof
the Speaker, and of Election Petitions (Article 134).

The Provisions of the Judicature Law, No. 2 of 1978, too confer upontheAttorney-GeneralPowersofaveryresponsible
nature: the power to determine whether a trial in the High Court shall be by Jury (Sec. 11):therighttoappealtothe
Court of Appeal from sentences imposed by and also orders of acquittal made by the High Court(Sec.15):byhisfiatin
writing to designate, in certain circumstances, the court or place at which any inquiry into or thetrialofanycriminal
offence shall be held (Sec. 47) : the right to electing, in certain circumstances, the court, before which a prosecutionfor
any crime or offence declared punishable by fine or imprisonment, may be initiated (Sec. 51).

The Attorney-General has also been vested with, under the provisions of the Code of Criminal Procedure Act, No. 15of1979,
very wide and far-reaching powers and functions which call for the exercise of an independentandimpartialdetermination:
to decide, in case of doubt, the court in which an offence should beinquiredinto(Sec.133):togranttherequisite
sanction without which the courts will not take cognizance of certain offences (Sec.135):theinitiationofproceedings
before a Magistrate's Court (Sec. 136 (1) (c) ) : giving of directions to a Magistrate with regard totheinitiationofa
preliminary inquiry in respect of certain offences (Sec. 145 (1) (b),andtheprovisotoSec.142(2)):topresent
indictments to the High Court (Sec. 160): to determine, in certain circumstances,thattrialofcertainoffencesbeon
indictment before the High Court by a jury (Sec.161): sanctioning of the discharge ofanaccusedpersonbyaMagistrate
(Sec. 190): the conduct of the prosecution in the Magistrate's Court (Sec.191 (1)) , and even in regardtoprivateplaints
(Sec. 191(2)): powers in regard to withdrawal of prosecutions initiated before the HighCourt(Sec.194):thetenderof
pardon to accomplices (Sec. 256, 257): appeals from acquittals (Sec. 318) and fromconvictions(Sections320(2)):the
appearance for the State in every appeal to the Court of Appeal where the State or a public officer isaparty(Sec.360)
with regard to certain offences affecting the administration ofjustice(Sec.389):thepowertoexhibitinformation,
present indictments to institute, undertake and carry on criminal proceedings in certain specified cases(Sec.393(1)):
the power to give advice, whether on application or ex mero moto, to State Departments,publicofficers,officersofthe
Police and officers in Corporations in criminal matters (Sec. 393 (2) ): the power to summon any officer ofStateorofa
Corporation or of the Police to attend his office with the necessary books and documents for certain specific purposes(Sec.
393 (3) ): the right to have Superintendents and Assistant Superintendents of Policereportingtohimthecommissionof
certain specific offences and the supplying of all relevant information required by the Attorney-General (Sec.393 (5) (b)):
the power to call for the original record and productions (Sec. 395): power to quash a commitment made byaMagistrateand
issue instructions to a Magistrate (Sec. 396): power to order a Magistrate to take furtherevidence(Sec.397):powerto
call for the proceedings in any criminal case from a Magistrate or a Judge of the High Court (Sec. 398): powertodirecta
Magistrate to commit an accused person who has been discharged (Sec. 399): power to exhibit information to the High Courtto
be tried by the High Court at Bar (Sec. 450): powers in regard to applications for bail-Chap.XXXVandtheprovisionsof
Acts Nos. 15 of 1978 and 54 of 1980.

The provisions of law relating to civil actions in which the Attorney-General figures are to befoundinPartIVofthe
Civil Procedure Code, Chapter 101, as amended by Laws Nos. 19 and 20 of 1977: section 456 provides thatallactionsbyor
against the State should be by or against the Attorney-General: that allprocessesissuingagainsttheStateshouldbe
served upon the Attorney-General (Sec. 457): that the Attorney-General be allowed reasonable time to file answer (Sec.458):
no action to be filed against the Attorney-General, as representing the State, unless one month's notice of suchactionhas
been given to the Attorney-General (Sec. 461) : the power to undertake the defence of an action against a Minister andother
specified classes of persons (Sec. 463). Furthermore, the Attorney-General has been vested with powers and duties whichhave
to be exercised for the protection of the interests of minors, who are considered wards of the District Court,intermsof
the provisions of sections 589, 591, 592(2) of the Civil Procedure Code. So too in relation to persons ofunsoundmind-vide
sections 556 (2), 572 (2), 575 (1).
Furthermore, the Attorney-General has to perform certain special functions when disciplinary action is set in motionagainst
attorneys-at-law, in terms of the Rules which the Supreme Court has made in pursuance of the rule making power vested inthe
Supreme Court by the Provisions of Article 136 (1) (g) of the Constitution. In terms of thesaidRules,oncetheSupreme
Court issues a Rule upon an attorney-at-law calling upon him to show cause why he should not besuspendedorremovedfrom
office, it is the Attorney-General (or the Solicitor-General, or any other officer of the Attorney-General's Department)who
appears before the Supreme Court in support of such Rule and leads evidence against the attorney-at-law concerned. Thenwhen
anattorney-at-law, who had been removed from office desires toapplytotheSupremeCourtforre-admissionandre-
enrolment, he has to make the Attorney-General a respondent to his application.

The Attorney-General of this Island has also, by tradition been accepted as the titular head of the Bar both of theofficial
and of the unofficial: been given a special place of honour and of responsibility on behalf oftheBaratallceremonial
sittings of the Supreme Court: presided over meetings of the Bar Council.

The Attorney-General has, as already stated to, before he enters upon the duties of hisoffice,take(ormake)and
subscribe the oath -or affirmation, which is set out in the Fourth Schedule,wherebyhehasto"faithfullyperformthe
duties and discharge the functions" of his office "in accordance with the Constitution .... and the law."

A consideration of the foregoing makes it quite evident that the Attorney-General appointed by the President of theRepublic
under the provisions of the Constitution is an officer who is not only the chief legal adviser to the State, both inmatters
civil and criminal, and the person by and against whom all claims of a civil nature by and against the State areinstituted,
but is also the person who is responsible for initiating, on behalf of the Republic, all proceedings tobringtobookall
offenders against the criminal law of the land: that the powers, functions and duties attached totheofficeofAttorney-
General, both by statute and by tradition, are such that the person who holds the office of Attorney-General ought toappear
before the courts only in his capacity as Attorney-GeneralandAttorney-Generalalone.Verygreatemphasiswasplaced
throughout his submissions by Mr. Pasupathi on the argument that so long as there is no legal impediment to his appearingin
his private capacity he is entitled to appear in such capacity, and that the Court must hear him in suchcapacity.Trueit
is that there is no express legal provision anywhere which expressly prohibits the person,whoholdsofficeasAttorney-
General, from appearing before the courts of this Island in his capacity as an ordinary attorney-at-lawyet, itappearsto
me that the express provisions of law referred to earlier and also tradition constitute constraints, whichtendtooperate
against the holder of the office of Attorney-General from appearing before thecourtsinacapacityotherthaninhis
official capacity, and that the said constraints the Court itself, should take cognizance of.

It also seems to me that two simple illustrations would helpshowthatthisargument-baseduponthelackofalegal
impediment is far from convincing, and would not bear close scrutiny. Carried to its logical conclusion thisargumentcould
be made use of to justify an appearance, by the officer holding the post of Attorney-General, for the defence inacriminal
case, say in a prosecution by the police in a Magistrate's Court, or even in a private plaint There is noexpressprovision
which could be pointed to urge that he is expressly prohibited from doing so. Yet,havingregardtoallthepowersand
functions, vested by the provisions of the Criminal Procedure Code in the Attorney-General such asteponhispartwould
seem to me to be even unthinkable. Take then a civil suit between two private party litigants. Thereliesthepossibility,
if not in every such suit, at least in alargenumberofsuchcivilsuits,ofaquestionwhichwouldinvolvethe
interpretation of the Constitution arising in the course of it. What is to happen if and whenaquestionrelatingtothe
interpretation of the Constitution arises in a case is set out in Article 125 of the Constitution. If the holder of thepost
of Attorney-General is already appearing in his private capacity for one of the parties to such a suit then thesameperson
would not only receive, in his capacity as Attorney-General, a notice in terms oftheprovisionsofArticle134ofthe
Constitution, from the Supreme Court but he could also, in such capacity, exercise his right to beheardintermsofthe
provisions of the self-same Article. Such a situation could certainly have notbeencontemplatedbytheframersofthe
Constitution. What would have been contemplated and intended was an independent and an uncommitted officer proferring tothe
Supreme Court assistance, untrammelled by any extraneous considerationsand, what is even more important,assistancewhich
would not carry with it even the slightest hint of it being anything but strictly impartial.

During the course of his submissions, Mr. Pasupathi tendered to this Court a list of cases in which the Law Officersofthe
Crown had appeared for private parties in cases before the courts. This list certainly makes interesting readingandbrings
to light not only instances in which the two Law Officers had been pitted against each otherandalsooccasionswhenthe
Solicitor-General of the day had led the Attorney- General of the day in a civil suit. It has to be notedthat,whilstthe
earliest case in the list is a case in 1880 the latest is one in 1915. No case thereafter has beenbroughttoournotice.
Hence for well over half a century-during the last 65 years at any rate-there hasneverbeenasingleinstanceinthe
history of this Island where an Attorney-General of the day had left aside hisofficialmantleandsteppeddowninhis
private capacity, into the arena of litigation- civil or otherwise- between ordinary private partiesbeforethecourtsof
this Island. It has also to be noted that the period covered by the said list is a period during the entirety ofwhichthis
country was subject to colonial rule. Suffice it so say that, even before we gainedindependenceandtheAttorney-General
came to be appointed by the President under the Republican Constitution the Attorney- Genera Is of this country had givenup
the said practice.

Considerable reliance was also placed by Mr. Pasupathionthetwocasesof:Pererav.White(6),andVettiveluv.
Wijeyeratne (7). The judgments in both cases do contain opinions and observations which do support theviewthatthereis
nothing to prevent a professional officer of the Attorney-General's Department from appearing for private parties inprivate
litigation. Nevertheless, it must be noted that whilst Bonser, C. J. in Perera's case did accept the position that"itis
desirable" that at least one of the Law Officers of the Crown "should be free to take an unprejudiced view so as tobeable
to advise the Government", de Silva, J. in Vettivelu's case did accept the position that the reason why the Law Officersand
Crown Counsel did not generally represent parties in private litigation was because of "the conditions of service bindingon
them", and also took cognizance of the practice that even where the Attorney-General did not take up the defence of apublic
officer who is sued in court, but yet instructs an officer of his Department to appear for such public officer,theofficer
of his (Attorney-General's) Department so appears only in his official capacity. Even in regard to these two caseswhathas
to be noted is, that, whilst one (Vettivelu's case) did not deal with the position of the Attorney-General, they bothbelong
to an era long prior to the Constitution of 1978.

A careful consideration of the provisions of the Constitution and also the other statute law referredtoaboveshowsthat
the Attorney-General is one of the very few, if not the only one of officers appointed under theConstitutionwho,inthe
exercise of the functions and duties attached to the office he holds, comes into direct contactwithallthreeorgansof
government-the Parliament, the President of the Republic, and the Courts-through whom the sovereignty ofthepeople,which
is enshrined in and is recognized and guaranteed by the Constitution, is exercised. Whatever such an officersaysanddoes
should always be said and done in his official capacity and for and on behalf of the people of the Republic-notforandon
behalf of any one person or a group of persons only. It seems to me that the very appearanceofanofficerofsuchhigh
standing even in his personal capacity, for a private party would seem to be oppressive totheotherpartytoaprivate
suit. The appearance of such an officer even though it be in his private capacity is bound to carry with it, eventhoughit
may be quite unwittingly and imperceptibly the full weight of the authority of his official position and instil inthemind
of the opposing party the thought that he has been placed at a disadvantage and that the other side hasobtainedandadded
advantage over him. Even though such an appearance may not in fact secure for the party for whomsuchofficerappearsany
undue advantage, yet the thought or belief that would be entertained by the other partycannotbeshruggedoffasbeing
altogether unreasonable and baseless.

In England from the very earliest times the Judges have had the power to regulate the proceedings in theirownCourts,and
inherent in it was the discretion to decide whom they would permit to represent, before them, the partylitigants.Astime
went on the judges delegated to the Inns of Court the function of selecting fitandproperpersonswhomthejudgesmay
permit to appear before then-L Even so, the judges retained to themselves the supervisory powers in respect of them.

In the case of O'Toole v. Scott (8) their Lordships of the Privy Council had occasiontodiscussthequestionwhethera
person had by law a right to act as an advocate before the justices of the peaceand Lord Pearson quoted, at page242,the
judgment of Lord Tenterden in the case of Collier v. Hicks (9), to the effect:

"This was undoubtedly an open court and the public had a right to be present, as in other courts butwhetheranyperson,
and who shall be allowed to take part in the proceedings, must depend on the discretion of the magistrateswho,likeother
judges, must have the power to regulate the proceedings of their own Courts"

and, at p. 243, the judgment of Parke, J. also in the same case:

"No person has the right to act as an advocate without the leave of the Court, which must of necessity have the power of
regulating its own proceedings in all cases where they are not already regulated by ancient usage. In the superior Courts,
by ancient usage, persons of a particular class are allowed to practise as advocates, and they could not lawfully be
preventedbut justices of the peace who are not bound by such usage, may exercise their discretion whether they will allow
any, and what persons, to act as advocates before them".

At page 243, Lord Pearson also sets down the other cases illustratingthegeneralprinciplethat,subjecttousageor
statutory provisions, Court or tribunals may exercise a discretion whether they will allow any, and what persons, toactas
advocates before them. O'Toole's case (supra) was quoted with approval in the later case of Simms v. Moore (10).

In the case of Re S. (a barrister) (11) where Paull, J. went into the way a barrister becameapersonhavingarightof
audience in the Superior Courts of England, and into the relationship between the Inns of Court andthejudges,quotesat
page 955, the words of Lord Denning in the case of A.G. of the Gambia v. N'jie (12), at 508:

" By the common law of England, the judges have the right to determine who shall be admitted to practise asbarristers
and solicitorsand, as incidental thereto, the judges have the right to suspend or prohibit from practice. In England,
this power has for a very long time been delegated as far as barristers are concerned, to the Inns of Court and,for
much shorter time, so far as solicitors are concerned to the Law Society."

The principle which, in my opinion, could be culled from these judgments is that there is an ancient and anundoubtedright
in the courts of England to regulate the proceedings before them, and inherent in it is, unless there is statutoryprovision
to the contrary, the discretion to decide whom the Courts would permit to represent before them a party who hasarightto
be heard by them. In this Island, where the system of Judicature and the relations between the Bench and theBararebased
upon principles similar to these obtaining in England, such an inherent power would rest inourCourts,intermsofthe
provisions of section 839 Civil Procedure Code, unless of course there is express statutory provision to thecontrary.Such
a principle cannot, in my opinion be said to be out of "harmony with sound general legalprinciples,"orbe"inconsistent
with the intentions of the Legislature."

In Sri Lanka the duty of putting forward persons as fit and proper persons whom the judges could permit intheirrespective
courts to appear on behalf of party litigants, who come before them, has been vested bystatuteintheCouncilofLegal
Education. Mr. Pasupathi also highlighted the provisions of Articles 13(3), 169(12) of the Constitution, andofsection41
of the Judicature Act, No. 2 of 1978, in support of his contention.

Article 13 (3) of the Constitution provides that a person "charged with an offence shall be entitledtobeheardin
person or by an attorney-at-law......" This guarantee of beingheardinpersonorthroughanattorney-at-lawis
extended only to "a person charged with an offence."

What Article 169 (12) provides is that, after the appointed date referred to therein, "no attorney-at-law shallbeentitled
to represent any party to a proceeding or be given the right of audience in any Court, Tribunal orotherInstitutionuntil
or unless he has taken and subscribed the oath or made and subscribed the affirmation set out......." This Article cannotbe
said to confer any substantive rights on the attorneys-at-law. It cannot be relied ontovestintheattorneys-at-lawa
right of audience. All that it states is that unless and until an attorney-at-law takes the prescribed oath, he willnotbe
able to exercise either the right to represent another before a court of law or the right to be heard before a court oflaw.
Neither of these rights is conferred by the provisions of this articleonanattorney-at-law.Itisnotanempowering
provision. All that it seeks to do is to place a bar to the exercise of certain rights, which it is assumed have beenvested
in an attorney-at-law by some other provision of law ordained by Parliament. One has to look to otherstatutelawforthe
vesting, if any, of such rights in an attorney-at-law. Section 41 of the Judicature Act, No. 2 of 1978,ispointedoutas
such a provision of law.

Section 41 of the Judicature Act, No. 2 of 1978, provides:

"Every attorney-at-law shall be entitled to assist and advise clients and to appear, plead or actineveryCourtor
other institution established by law .... and every person who is a party to or has or claims to have the righttobe
heard in any proceeding in any such Court or other institution shall be entitled to be represented byanattorney-at-

An analysis of the provisions of this section shows that it deals with two matters:thateveryattorney-at-law"shallbe
entitled" to assist and advise clients and to appear, plead or act in every court: thateverypersonwhoisapartyor
claims the right to be heard in a court shall be entitled to be representedbyanattorney-at-law.Anappearanceofan
attorney-at-law in court is on behalf of a "client". It is interesting to note that in England Barristersaredividedinto
two categories: "Practising Barristers" and "Non-practising Barristers". The definition of a "PractisingBarrister"asset
out in the Regulations of the Bar Council-vide Halsbury, Vol. 3 (4th edition), page 594, para 1110, note II -is:" ,...a
barrister who is entitled to practise and who holds himself out as ready to do so not being otherwiseemployedinawhole
time occupation, or a barrister whose whole regular occupation, is that of editor or reporter of any seriesoflawreports
entirely written and edited by barristers for the use oflegalprofession".Ourattentionhasnotbeendrawntoany
corresponding definition in Sri Lanka. Be that as it may the English definition contains animportantcharacteristicofa
practising lawyer, be he called a barrister or attorney-at-law. It is that hisservicesasaprofessionalisfullyand
entirely devoted to those who require his services as such. He is not one who is "otherwiseemployed"andisexpectedto
devote his full time to the discharge of the functions and duties of such office, for which he is paid a salary, and isable
to appear in court for another only -when his services are not "otherwise" required. It appears to methatanattorney-at-
law, who, of his own free will, accepts office as Attorney-General and takes and subscribes the oath or affirmationsetout
in the fourth Schedule can and must thereafter be taken to have opted to appear in court only on behalf of his oneandonly
"client", the state (and or an agency of the state or any other person for whom he could appear in his officialcapacityas
the Attorney-General).

The "right" conferred on an attorney-at-law by section 41 is not a right in the sense that. it casts a corresponding dutyon
another and an infringement or a denial of which could be vindicated in a manner in whicha"right"inthatsensecould
ordinarily be vindicated. It appears to me be more in the nature of a privilege or a licence. The provisions of thissection
do not, in my opinion, come into conflict with the inherent right of the courts of this Island toregulatetheproceedings
in their courts as referred to earlier. Nor could they be said to be incompatible with such an inherent right.

in this view of the matter, I am of opinion that, having regard to the functions, powers and duties attachedtotheoffice
of Attorney-General both by statute and by tradition, theholderoftheofficeofAttorney-Generalunderthepresent
Constitution should appear before the courts of this republic only in his capacity as Attorney-General, and thattheholder
of the said office should be heard by this court only in his capacity as the said Attorney-General.

For the reasons, I make order upholding theabove-mentionedpreliminaryobjectionraisedonbehalfoftheplaintiff-

This is an application No. C.A. 211/81 by the Land Reform Commission as petitioner for the revision of an order madebythe
District Judge of Colombo and the application No. C.A. 20/81 is one for leave to appeal from the same order.Thisorderis
one made in a purely civil action between a private company, Grand Central Limited and the Land Reform Commission which isa
statutory Corporation constituted under the Land Reform Law and a distinct legal entity. It would appear fromthepleadings
and documents filed in these applications that the subject matter in dispute was the management ofsomeestatesadmittedly
belonging to the p lain tiff- respondent entrusted to the Land Reform Commission and the termination of themanagement.The
dispute was thus one strictly between the company and the Land Reform Commission.

When the matter was taken up before us on the 5th March, 1981, Mr. S. Pasupathy,theAttorney-General,Mr.K.M.M.B.
Kulatunga, Deputy Solicitor-General and Mr. S.Ratnapala,StateCounsel,markedtheirappearancesforthedefendant-
petitioner instructed by Mr. P. K. T. Perera, the Legal Officer of and an employee of theLandReformCommissionwhohad
filed his proxy on behalf of the Commission.

Mr. H. W.. Jayewardene, Q.C., Mr. C. Ranganathan, Q.C., M r. H. L. de Silva, Mr. K. N. Choksy, Mr. Romesh de Silva,andMr.
Lakshman Perera marked their appearances for the respondent-company instructed by Messrs Julius & Creasy whohadfiledthe
proxy for the company.

At the very outset Mr. H. W. Jayewardene, Q.C., sought a clarification as towhetherMr.S.Pasupathyappearedforthe
defendant-petitioner as the Attorney-General or as a private attorney-at-law instructed by Mr. P. K.T.Perera,theLegal
Officer and employee of the petitioner.

Mr. S. Pasupathy thereupon categorically stated that he was not appearing as the Attorney-General and that hewasappearing
in his private capacity as an attorney-at-law instructed by Mr. P. K. T. Perera for the Land Reform Commission.Heasserted
that he had complied with article 169 (12) of the Constitution which entitled him to the right of audience as an attorney-at-
law having taken the prescribed oath. Mr. Jayewardene, Q.C., thereupon stated that he was taking a preliminaryobjectionto
Mr. Pasupathy appearing in his private capacity in a purely civil dispute between two parties.

It is to be noted that Mr. H. W. Jayewardene, Q.C., is the President Emeritus of the Bar Association of Sri Lanka,andthat
Mr. S. Pasupathy is the official leader of the Bar by virtue of his holding theofficeoftheAttorney-General,whoare
deeply concerned with the interests and traditions of the legal profession.

Mr. H. W. Jayewardene, Q.C., Stated that the point he was taking was a very important one whichaffectedtheentirelegal
profession, professional conduct, the appearances according to profession, seniority, senioritydependingonthedateof
call to the bar and the right of salaried employees under the State appearing in Courtandprincipallytherightofthe
holder of the very high office of Attorney-General appearing in his private capacity as alawyerinapurelycivilcase
between private parties. He contended that while Article 169 (12) of the Constitution (1978) entitled any attorney-at-lawto
represent any party to a proceedings or gave him a right of audience in any court, Tribunal or other institution,itwasa
franchise or privilege which a person could exercise so long as there was no legal prohibition, noconstraintsinherentin
the nature of the office the person held or so long as there was no conflict with the interests thepersonwhoseinterests
he has to look after by virtue of his office.

He contended that this court had a duty and right to adjudicate upon the question whether a person is entitled totheright
of audience in a given case when such a right is questioned or where the absence of such a right is brought to the noticeof

We therefore decided to hear submissions on this preliminary objection on behalf of both parties.

Mr. Jayewardene traced the history of the office of Attorney-General in this country from the earliest timesinsupportof
his contention that there are certain constraints attached to a holder of the office ofAttorney-GeneralwhichthisCourt
should take note of and must uphold in the interests of the Administration of Justice.

After the Dutch Settlements in Ceylon were ceded to the British Crown, there was appointed a Governor to governthecountry
for the British Sovereignty. By Proclamation dated 23rd September, 1799, the Roman-Dutch Law was establishedasthecommon
Law of the ceded territory and by Royal Command temporarily the Administration of JusticeandPolicewereorderedtobe
exercised in conformity with the laws andinstitutionsthatsubsistedundertheUnitedProvinces,namely,theDutch
Government, subject to deviations or alterations to be made from time to time. Under that system of the law the 'Fisc'meant
Treasury, State or Crown and the Advocate Fiscal was the principal officer of the Government against whom any claim couldbe
made as against the Government (vide Le Mesurier v. Layard (4).)The office of Advocate Fiscal continued forsometimetill
about 1934, when the title of this officer was changed to King's Advocate, the change havingbeenbroughtaboutbyRoyal
Charter dated 18.2.1933.

As Bonser, C. J. pointed out in the above case :

"The present Attorney-General is the lineal successor of the old Advocate Fiscal, and just as in the olddaysactions
against the Government were brought against the Advocate Fiscal as representing the local 'Fisc' or Treasury,sothey
may now be brought against the Attorney-General."

In that case a 'dismissed officer of the Civil Service' sued theAttorney-Generalnotinhispersonalcapacitybutas
representing the Government of Ceylon. Lawrie, J. referring to the distinction drawn between the 'Crown' and the'Government
of Ceylon' agreed that there was such a distinction and held that the Attorney-General was the correctpartydefendant,if
the party sued was the Government of Ceylon.

The importance of the office of King's Advocate or Queen's Advocate was still further accentuated by theprovisionsinthe
Law of Evidence Ordinance, No. 9 of 1852, in section 6:

"(6) Nothing herein contained shall render the Queen's liable to give evidence in any court in the Advocate compellable
to give evidence in any court in the Island instituted by or against that officer in his official capacity."

Ordinance No. 11 of 1868 was introduced to amend and consolidate the Law in the Colonyrelatingtotheadministrationof
justice replacing the Royal Charter of 1833. Section 86 of that Ordinance provided for civilactionstobefiledinthe
Court of Requests. Section 90 provided that if any person committed perjury in any civil case in the Court ofRequests,the
Commissioner was obliged to give information to the Queen's Advocate forthwith. This by implication meant that he shouldnot
otherwise appear in the Court of Requests. Section 111 dealt with the Queen's Advocate's powers of prosecution inregardto
certain offences, his right to stop proceedings or to intervene in any prosecution andgavehimthepowertoorderthe
liberation of persons committed to jail. Section 117 dealt with his powers in civilcasesandprovidedthattheQueen's
Advocate shall institute all civil suits on behalf of the Crown andgavehimtherighttoappearinallcivilsuits
instituted by any private party against the Queen's Advocate. Section 118 provided for the maintaining of a specialrollin
court referred to as the Queen's Advocate's Roll.

In the case of Frazer v. Queen's Advocate decided in July 1868 (13), at page 322 Creasy,C.J.andStewart,J.heldas

"We humbly consider that by these declaration of the Royal Will, Her Majesty's subjects in this island who had or might
have any money due to them from the local government for wages, for salary, forwork,formaterials,inshortfor
anything due on an obligation arising out of contract, were permitted to retain the old practicegivenbytheRoman
Dutch Law to sue the Advocate of the Fiscal, now styled the Queen's Advocate for recovery of their money."

In the case of D. M. Jayawardena v. Juvanis Fernando, and the Queen's Advocate decided on 7.6.1881(14)anactionupona
contract with. a government officer actingonbehalfofthegovernment,wasfiledagainsttheQueen'sAdvocateas
representing the Crown. The Queen's Advocate demurred to this on two grounds, first that the Crown could not be impleadedby
a subject and secondly that even if the Crown could be sued, there was no enactmentwhichmadetheQueen'sAdvocatethe
representative of the Crown. It was held, that the proper mode was to sue the Queen's Advocate,therepresentativeofthe
Crown in suits against the Crown. Cayley, C. J., having referred to the series of cases when the Queen'sAdvocatehadbeen
sued as the representative of the Crown held:-

"The practice to adopt the procedure of suing the Crown in the person of the Queen's Advocate has never sofaraswe
know been disputed in our courts. It would be needless to multiply citations of Ceylon cases on this point for the fact
that such a practice (whether legally sustainable or not) has prevailed and been recognised by our courts during a long
series of years is not open to controversy."

These cases clearly establish that the Queen's Advocate was a representative of the Crown and that hisappearanceincourt
as a party was nothing but as such representative, particularly in a civil action.

Mr. Jayewardene addressed us on the various changes in the Constitution that took place from time to time. He referred usto
the Report of the Special Commission on the Constitution (1928) under the Chairmanship of Rt. Hon. The EarlofDonoughmore.
At page 70 of this Report under the heading "The Attorney-General" theCommissionershaveexaminedthepositionofthe
Attorney-General and made certain recommendations. Having earlier dealt with the Treasurer, the Report states as follows:

"In the same way the Attorney-General will be the Legal Adviser to the Government with the full status of Minister, and
so able to participate in the deliberations of the Board of Ministers and of the Council. He willberesponsiblefor
advising the Heads of Departments and the Executive Committee on such matters as may be referred to him, as for example
the examination of contracts and the preparation of legal documents.

We would recommend that in order that the Attorney-General's duties may be satisfactorily fulfilled specialattentionwould
be paid to the staff of his department which has been criticised a I second bottle neck' not less effective than that ofthe
Secretariat in obstructing the free flow of public business."

The Soulbury Commission Report at page 107 had the following recommendation in regard to the Attorney-General - 401:

"We have already recommended above that the Attorney-General should be charged with the duties now carried outbythe
Legal Secretary under this heading. We envisage that, under the Constitution werecommended,Ministerswillrequire
legal assistance in (a) the day-to-day running of their departments, (b)thepassageofBillsthroughParliament,
especially at the Committee stage, (c) the interpretation of existing law and in departmental matters which may involve
legal proceedings, and (d) matters of high constitutional policy, on which the Cabinet as such may require advice."

The Ceylon (Constitution) Order in Council 1946 (Chapter 379, Revised Legislative Enactments) in PartIIIwhichcameinto
operation on 5th July, 1947, provided in section 33 that before the Speaker certifies a Bill passed as a Money Bill heshall
consult the Attorney-General or Solicitor-General and in section 34 (2) provided that before the Speaker certifiesthatany
other Bill was passed he shallconsulttheAttorney-GeneralortheSolicitor-General.Section60providedthatthe
appointments, transfers to the office of Attorney-General shall be made by the Governor-General.

In terms of the provisions of section 6 of the Ceylon (Constitution) Order in Council of 1946 which was theConstitutionin
force before Ceylon became a Republic on 22nd May, 1972, the Attorney-General was a Public Officer appointed by the Governor-
General to the Public Service.

The proviso to this section provided the 'transfer' in regardtotheAttorney-GeneralbytheGovernor-Generalmeansa
transfer involving an increase in salary.
He was the chief prosecutor for the Crown at the time and all indictments in criminalcasesagainstaccusedpersonswere
under his name. As chief prosecutor he was the Director of all Crown prosecutions and in his discretionexercisedthefiat
of entering nolle prosequi. In non-summary proceedings before Magistrates, he gave instructionstoMagistratesasregards
the conduct of cases. Thereby he had quasi-judicial powers. In the case of The Attorney-General v. Don Sirisena (15)decided
in 1968, H. N. G. Fernando, C. J. held:

"Our Law has, since 1883 if not earlier, conferred on the Attorney-GeneralinCeylonpowersdirectlytobringan
alleged offender to trial before a Court, to direct a Magistrate who has discharged an alleged offender tocommithim
for trial and to direct a Magistrate to discharge any offender whom he has committed for trial.Thesepowersofthe
Attorney-General which have commonly been described as quasi-judicial, have traditionally formed anintegralpartof
our system of Criminal Procedure, and it would be quite unrealistic toholdthattherewasanyintentioninour
Constitution to render invalid and illegal the continued exercise of those powers."

The Supreme Court held that the exercise by the Attorney-General of powers under section 391 of the CriminalProcedureCode
was not an interference with the powers of a court and therefore did not constitute an infringement of the principleofthe
Separation of Powers recognised in the Constitution of Ceylon. No appeal from an acquittal in a criminalcasewaspossible
without the sanction of the Attorney-General. Even in the case of private prosecutions the sanction oftheAttorney-General
was necessary before an appeal against an acquittal was filed.

In civil cases he become the defendant whenever the Government, Government Departments or MinisterofStateweresuedas
defendants. Under Parliament (Powers and Privileges) Act,No.21of1953,itwastheAttorney-Generalwhoinitiates
proceedings. (The Attorney-General v. E. P Samarakkody and W. Dahanayake (16).

When the Republican Constitution of 1972 came into operation, there was hardly any difference in the actual positionofthe
Attorney-General. He remained a State officer in terms of section 108 of the Constitution. He continued astheChiefLegal
Adviser to the Government.

Under this Constitution however he had a Director of Public Prosecutions to carry out State prosecutions,butthisofficer
functioned under him. The Attorney-General was given additional functions. He was required to examine everyBillintroduced
in Parliament for any contravention of the provisions of the Constitution. He was empowered to instituteproceedingsbefore
the Constitutional Court and defend the point of view of the Government. He was entitled toexpresshisopiniononBills
tabled in Parliament. This provision was a novel provision written into the Constitution and a heavy responsibility wascast
on the single individual who was aStateofficerbutnotapolitician,policymakerordraftsman.Hehadtoact
independently. This gave him a very important and responsible role in the legislative process.

The Constitution of the Republic of Sri Lanka (Ceylon) was adoptedandenactedonthe22ndMay,1972.ByArticle3,
sovereignty was declared to be in the people. This sovereignty was to be exercised through the NationalStateAssemblyand
the National State Assembly was the supreme instrument of State power. Article 53 provided for the dutiesoftheAttorney-
General in regard to the examination of Bills passed and for the communication of his opinion to the Speaker. Article 63(1)
provided that the Attorney-General had the right to be heard on all matters before the ConstitutionalCourt.TheAttorney-
General was appointed by the President. Even under that Constitution the Attorney-General held averyimportantplaceand
was the principal Law officer of the Republic and adviser to the State.

The provisions of the present Constitution of the Democratic Socialist Republic of Sri Lanka (1978) vis-a-vistheAttorney-
General have to be examined in order to determine the very important role the Attorney-General now plays in theexerciseof
the Executive, Legislative and Judicial powers that have to be exercised in relation to the sovereignty of thePeopleafter
the displacement of the Crown.

Mr. H. W. Jayewardene stressed that the office of Attorney-General was a very exalted and high office and the holder ofsuch
office had corresponding obligations and duties to the Executive, to the Legislature andthejudiciary,thatis,tothe
State. His rights of audience in Court could not be considered merely from the point of view that he isanattorney-at-law.
He drew our attention to the provisions of the Constitution of the Democratic Socialist RepublicofSriLanka(1978).He
referred to Chapter IX which dealt with the Executive under the sub-head "Public Service".

Article 54 reads as follows:

"The President shall appoint all public officers requiredbytheConstitutionorotherwrittenlawtobe
appointed by the President, as well as the Attorney-General and the Heads of the Army, the Navy, the Air Force andthe
Police Force."

The officers so appointed become full-time members of the Public Service.

Thus the Attorney-General was an instrumentbywhichtheExecutivePowerwasexercisedbythePresidentunderthe
Constitution. He was the Head of a department, and was the principal Law Officer of the State.

Article 129 (1) of the Constitution provided for the President of the Republic when it appears to him that a question oflaw
or fact has arisen or likely to arise of public importance, he could invoke theconsultativejurisdictionoftheSupreme
Court. In terms of Article 134 the Attorney-General has a right to be heard in the SupremeCourtintheexerciseofits
jurisdiction under Article 129 (1).

Chapter XI, Articles 70-81 which dealt with the Legislature undertheheading"ProcedureandPowers"refertocertain
important duties and powers given to the Attorney-General. The legislative power of the PeopleisexercisedbyParliament
and these provisions made him an instrument used in the exercise of thispower.Article77makesitobligatoryonthe
Attorney-General to examine every Bill for any contravention of the requirements of paragraphs 1 and 2 of Article 82 andfor
any provision which cannot be validly passed except by a special majority. The duties oftheAttorney-Generalareclearly
spelt out in Article 77 and he has a duty to communicate his opinion to thePresidentandalsototheSpeaker.Hehas
therefore of necessity to be available at all times to perform these duties.

Chapter XVI deals with Superior Court-Articles 118 to 147. Article 134 gives the Attorney-General the right tobeheardin
the Supreme Court in the exercise of its jurisdiction under Articles 120 to 126, 129 (1) and 131. The Judicial Powerofthe
Executive is exercised by Parliament through the courts created and established or recognised by the Constitution orcreated
or established by law. The Attorney-General thus became the instrument used in the exercise of this power.

On an examination of these provisions it is clear that theAttorney-Generalholdsauniquepositionendowedwithwide
powers, onerous duties and special rights in regard to matters involving the exercise of the Sovereignty of the Peopleunder
the three limbs-

(1)Executive Power of the People

(2)Legislative Power of the Peopleand

(3)Judicial Power of the People.

The significance of this fact is that, unlike in England where the Queen is the Sovereign, intheRepublicofSriLanka,
Sovereignty is in the People in terms of Article 3 of the Constitution and the Attorney-General represents and actsforthe
People of the Republic.

The Attorney-General is the principal Law Officer of the State. He is assisted by the Solicitor-Generalwhoissubjectto
his authority. He is the Head of a Department staffed by attorneys-at-law and members of the AdministrativeServiceinthe
full-time employment of the State. He is responsible for the legaladvicegiventotheGovernmentand,itistohis
Department, that Government Departments turn for advice on matters of particular ,difficultyorofpoliticalornational
importance. His Department is consulted by Statutory Bodies or Corporations like the Land Reform Commission itself,whoact
on that advice so received. These attorneys- at -law attached to his Department had been appointed as full time employeeson
a salary basis.

Apart from the duties and powers granted to him by the Constitution itself, the Attorney-General exercised the majority
of his functions in a quasi-judicial manner and without regard to political consideration of any kind whatsoever.Underthe
judicature Act, No 2 of 1978, under section 11, the Attorney-General could determine the High Court in whichatrialcould
be held, section 15 gives the Attorney-General the right of appeal in criminal cases, section 47 gives himpowertodecide
the court or place at which an inquiry or trial of any criminal offence shall be transferred, section 51 gives theAttorney-
General powers to elect the court for the prosecution of a criminal case.

The Criminal Procedure Act, No. 15 of 1979, imposes specific duties and grants verywidepowerstotheAttorney-General.
Under section 142, he could give directions to Magistrates. In non-summary inquiries under Chapter XV theAttorney-General
had been given the sole right of the presentation and service of indictments. Section 191 (1)providesthattheAttorney-
General shall be entitled to appear and conduct the prosecution in a prosecution in the Magistrate's Court in summarycases.
Under section 191 (2) the Attorney-General shall not appear in a case filed against aStateemployeewithouthisconsent
Section 193 provides that in any trial in the High Court, the prosecution shall be conducted by the Attorney-Generalorthe
Solicitor-General or by an appropriate appointee of the Attorney-General.

The Civil Procedure Code, No. 20 of 1977, Chapter IV, section 456 provides that all civil actions byoragainsttheCrown
(State) shall be instituted by or against (as the case may be) the Attorney-General. Section 456(3) speciallyprovidesthat
the Attorney-General in this section does not include the Solicitor-GeneraloranyCrownCounsel.Thefactthatthe
Attorney- General represents the Crown or State is made clear by the provisions of section 461 where actions couldbefiled
against a Minister, Parliamentary Secretary or Public Officer in respect of an actpurportedtobedonebyhiminhis
official capacity. However, section 463 makes provision for the Attorney- Generato make an applicationtoCourttohave
his name substituted as a party to the action. It is significant that when the Attorney-Generalundertakesthedefenceof
the action against a Minister, Parliamentary Secretary or Public Officer, he has to become a party to the action. By ActNo.
48 of 1954 in section 463thewords'governmentundertakes'weresubstitutedtoread'Attorney-Generalundertakes'.
Therefore he appears in court as the Attorney-General and not as a pleader on for or on behalf of the party concerned.

From an examination of all these provisions, I am oftheviewthattheAttorney-Generalisthefull-timeHeadofa
Department of the Executive, that he has special duties and obligations towards theLegislatureandspecifieddutiesand
obligations to the Judiciary which latter duties bring him close to the Judicial officers.

Mr. Pasupathy in reply to the preliminary objection sotakenre-iteratedhispositionthathewasanattorney-at-law
entitled to represent any party to a proceeding and had the right of audience in any Court, Tribunal or other institutionso
long as he complied with the provisions of Article 169 (12) and that he was appearing in his private capacity as an attorney-
at-law with his other colleagues who too were appearing with him in their private capacitiesinstructedbyMr.P.K.T.
Perera, the Legal Officer and employee of the Land Reform Commission and that herepresentedhisclienttheLandReform
Commission in that capacity. He relied on Article 14 (1) (g) of the Constitution which guaranteedtoeverycitizen,inter

"the freedom to engage by himself or in association with others in any lawful occupation, profession,trade,business
or enterprise."

He contended that the exercise and operation of his fundamental right could only be subject toanyrestrictionasmaybe
prescribed by law in terms of Article 15 (5). He sought to argue that the term 'law' referred to therein hadtobedefined
in terms of Article 170 to mean -

"Any act of Parliament and any law enacted by the legislature at any time prior to the commencement of the Constitution
and includes an Order in Council".

He also argued that the term 'law' referred to in paragraph 15(7) includes regulations made under the law for the timebeing
relating to public security. He thereafter referred to the Rules and Regulations made by the Supreme Court under Article136
of the Constitution and published in Gazette No. 9410 of 8.11.78 and stressed that there was no restrictionimposedonhim
by those rules or regulations. Mr. Pasupathy was heard to state at some stage that he was appearing onadirectionofthe
Head of the state. But he did not seem to rely heavily on such direction.

If there was such a direction, he may have sought to intervene in these proceedings as AttorneyGeneral.Havingchosento
appear as a private attorney-at-law, he would have realised that the direction he received did not justify his appearancein
the way he did.

He submitted that he was at liberty to decide for himself whether he should appearasaprivateattorney-at-lawforhis
client the Land Reform Commission and that decision so to appear was a matter for him alone and could notbequestionedin
this Court. He further submitted that this Court could not decide the propriety of his appearance in this capacity. Ifthere
was a breach of any rule of professional etiquette or any departure from any professional practice or discipline, that wasa
matter for inquiry by the Supreme Court. He contended that there was no known legal impedimentforhimtoappearinhis
private capacity as any other attorney-at-law.

He relied heavily on the expression of opinion of Bonser, C.J. in the case of Perera v. White (6). This was decidedin1900
and was a case filed by Mr. White, the Acting Mayor of the Municipal Council for damages for anallegedlibelbyoneMr.
Charles Perera, a member of the Municipal Council. The matter came up before the Supreme Court on an expartemotionfiled
by Mr. White requesting the Supreme Court to apportion counsel to help him in his defence as severaleminentcounselnamed
in his affidavit had declined to appear for him. Bonser, C. J. characterised this application asamerespeculativeora
sporting application and that the application was one without precedent in the Island. The opinionreliedonisinthese

"It is said that the Acting Attorney-General thought it advisable not to act for either party in view ofhisbeinga
Law Officer of the Crown. I do not quite see how his being a Law Officer of the Crown is an impediment to his appearing
in this case.

It may be that it is desirable that one of them should be free to take an unprejudiced view so as to be able toadvise
the government, but there is another Law Officer of the Crown and it does not appear that any application wasmadeto
him or to any of the Crown Counsel".

The application was disallowed.

The case is no authority for the proposition that the Attorney-General could appear inacivilcasebetweentwoprivate
parties. Rather Bonser, C.J. had clearly adverted to the desirability that the Law Officer should befreeandunprejudiced
in order to be able to advise the Crown.

The other case relied on by Mr. Pasupathy was the case of Vettivelu v. Wijeratne(7). In that case the plaintiff had filedan
action against the petitioner who was a Village Headman for recovery of damages in the District Court ofVavuniyaCaseNo.
1281. In his answer the petitioner admitted that he demolished the house on the orders of the Government Agent as itwasan
unauthorised structure on Crown land. When the case came up for trialCrownCounselmovedtoappearforthedefendant
instructed by Mr. Swaminather, Proctor, in terms of section 461 of theCivilProcedureCode.Counselfortheplaintiff
objected. The objection taken was upheld in that the Attorney-General had not made an application to undertakethedefence,
Crown Counsel then moved to appear for the defendant in his personal capacity asanadvocateoftheSupremeCourt.The
District Judge disallowed that application as well. An application was made to the Supreme Court torevisebothordersof
the District Judge. K. D. de Silva, J. held that both orders were clearly irregular and illegal and that-

"an Advocate has the right of audience in any court in which he has the right toappear.Thatrightisinnoway
affected by reason of the fact that he happens to be an officer of the Attorney- General's Department.

It is true that Law Officers and Crown Counsel do not generally represent parties in private litigation. But that
is not for the reason that they are unqualified to appear in those cases, but becauseoftheconditionsofservice
binding on them."

The learned Judge held further as follows:

"The fact that the Attorney-General had not made an application under section 463oftheCivilProcedureCodedoesnot
disentitle him from assigning Crown Counsel to appear for a defendant who is a Public Officer.

The learned Deputy Solicitor-General stated from the Bar that when public officers are sued in tort the Crown doesnottake
up their defence, but the Attorney-General instructs a Crown Counsel to appear for them. "

No objection could be taken to that practice".

Mr. H. W. Jayewardene, Q. C. in reply did not challenge the judgement of the Supreme Court in this case (7), but statedthat
case clearly indicated that Crown Counsel appearing underthesecircumstancesinaccordancewiththelongestablished
practice was different from the Attorney-General personally appearing as a private attorney-at-law, K. D. deSilva,J.did
accept the position that Law Officers and Crown Counsel do not generally represent partiesinprivatelitigationnotfor
want of a right, "but because of conditions of service binding on them. "TheAttorney-GeneralandtheSolicitor-General
were the only two Law Officers, that the learned Judge could have had in view and if their duties and conditionsofservice
are such as to keep them away from private litigation it is not a deprivation of their right of audience in acourtoflaw
but a constraint attached to their office.

Mr. Pasupathy also relied on section 41 (1) of the Judicature Act, No. 2 of 1978, in regard torightofrepresentationon
the basis that he was an attorney-at-law.

"41 (1) Every attorney-at-law shall be entitled to assist and advise clients and to appear, plead or act in every court
or other institution established by law for the administration of justice and any person who is a party toorhasor
claim to have a right to be heard in any such court or other institution shall be entitledtoberepresentedbyan

This provision no doubt covers all attorneys-at-law, but the question does arise whether the Attorney-General as LawOfficer
could have only the State as his client. In that event, he is entitled to assist and advisetheStateashisclientand
appear, plead and act for the State only as Attorney-General and not as a private attorney-at-law.

Mr. Pasupathy referred us to the case reported of The Attorney-General v. Saibo (17). This was a caseinwhichcosts
were decreed payable to the Crown. The Crown Proctor submitted a bill of costs whichcontainitemsforcostspayableto
Crown Counsel for advising the appeal, retainer brief fee and fees for appearance. The Registrar rejected these items asnot
incurred by Crown Counsel. The Attorney-General appealed to the Supreme Court. The Supreme Court held whentheCrowncomes
into court as a successful litigant and asks taxation of its Bill of Costs it must be taken to have submittedtotherules
of practice prescribed for the exercise of that branch of the jurisdiction of the Courts to which it appeals.Inthatcase
there is a reference to an earlier case decided in 1906, Le Mesurier v. The Attorney-General (18) thatwheretheAttorney-
General employs Crown Counsel to appear on behalf of the Crown and disburses nothing and incurs no debt by wayoffees,he
is not entitled to charge the opposite party such fees as he might reasonably have had to pay for the services ofaprivate
advocate, had he chosen to engage one. In that case there is a reference to the practice that when Crown Counselappearfor
the Crown and costs are awarded and recovered, they are paid to the particular Crown Counsel for his services thusrendered,
but if costs are not awarded or recovered, Crown Counsel gets nothing for his services beyond hisregularofficialsalary.
This is what Lascelles, C. J. stated in the case of Attorney-General v. Saibo (supra):

" Before the decision in Le Mesurier v. The Attorney-General (supra) it appears to have been the invariably practice to
allow on taxation fees of the Attorney-General, Solicitor-General and Crown Counsel, but thepracticeneverreceived
judicial sanction.

These officers up to the date when their salaries were adjusted on a sterling scale were allowed to retaintheirfees
when recovered.

From that date officers of the Attorney-General's Department who were in receipt of a sterling salarywereprohibited
by the General Orders of Government from retaining any fees paid in respect of their services and their fees if allowed
were payable to the Public Treasury."

In this case, however, the Supreme Court adopted the passage of Wendt, J. :

"An alteration in the destination of these fees,whenrecovered,mightperhapshaveobviatedtheobjectiontotheir
allowance. I do not see that any exception could be taken to the practice of the Crown paying yearly salaries to counselfor
doing its work in courtand it would bereasonableenoughthattheCrown,whensuccessfulshouldrecoupitselfby
recovering from its opponent a fair fee for the work done. But in such a case the fee must go to the Crown, and notdirectly
into the pocket of the advocate engaged in the case."

These cases do not support the contention of Mr. Pasupathy in any way as they dealt with the appearance of his officers
in their official capacity.

At the argument Mr. Pasupathy submitted a list of cases reported in Supreme Court Circulars1881-1883and1889-1891,from
the New Law Reports up to 1915 where there have been appearances of the Queen'sAdvocate,Attorney-GeneralandSolicitor-
General in civil cases. But all these cases belong to an era prior to the imposition of specialdutiesandrightstothe
Attorney-General and the Solicitor-General.

Having argued that he was entitled to appear for a private person as an attorney-at-law, henexttookupthealternative
position that the Land Reform Commission, though a statutory body, was an agency of the State andthatthereforehecould
have the same relationship of lawyer and client with such an agency as the interests of the State were involved.

He cited the Supreme Court judgment dated 10th September, 1979, inElectionPetitionAppealNo.1of1979,theGalle
Election Petition case (2). In that case the Supreme Court after considering the constitution, activitiesandfunctionsof
the Petroleum Corporation which carried on monopolistic commercial transactions for the State held that it wasanagentof
the State.

The Land Reform Commission is, however, a statutory corporation created by the Land Reform Law, but was notsimilartothe
Petroleum Corporation in any way and was not an agency of the State. It had it own legal department with Attorneys-at-lawas
its full-time employees as its advisers. This contention would however, have beenplausibleifheappearedasAttorney-

The courts in this country haveconsistentlyfollowedthepracticeoftheEnglishBar.Thetwomaindivisionsof
theprofession are the Judges (the Bench) and the lawyers. Therefore any matter that israisedinregardtothelegal
profession, is a matter that effects both divisions. The primary function of the profession is to apply and utilisethelaw
in specific cases, in short, to individualise the law. This function is manifest in the work of the lawyers and the Judgein
the court room. Ordinarily the lawyer is retained by one side only (for a client) and necessarily is partisan. Theadversary
system of the administration of the law under which lawyers zealously represent sidesinvolvestheuseofsuchpartisan
representatives to bring out the truth and to achieve equal justice under the law. A lawyer hasthusseveralloyalties,a
loyalty to his client, to the administration of justice, to the community ofhisassociatesinpracticeandtohimself
whether to his reasonable economic interests or to his ethical standards as a man and as a member of the professiongoverned
by its own rules. In this context I do not think the Attorney-General could step down into the arena of privateorpartisan
representation in a civil case, leaving his duties, loyalties and obligations to the Republic aside even forawhile,when
his office as Attorney-General demands the devotion of his entire time to the interests of the People.

Mr. H. W. Jayewardene, Q.C. contended that the appearance of the Attorney-General wouldoffendagainstthegloriousrule
that justice must not only be done but must also appear to be done. He argued that considerationsofpublicpolicyshould
prevent the Attorney-General representing private persons. The Attorney-General by virtue oftheofficeheholdsisthe
representative not of an ordinary party to a controversy but of the Sovereign andnowoftheSovereigntyofthePeople
enshrined in the Constitution, a Sovereignty, whose obligation to govern impartially, is as compelling as itsobligationto
govern at all. The Attorney-General's only client is this Sovereignty, the Republic. The ConstitutionoftheRepublichas
vested in him very important and exclusive rights and duties to act as such representative.Variousstatuteshaveimposed
duties in regard to the prosecution for offences, the right of representation in Courts on behalf oftheStateandquasi-
judicial functions in relation to High Courts and Magistrates Courts. Thus as far as theAttorney-Generalisconcernedhe
has been given an exclusive privilege to practise as an attorney-at-law within certain circumscribed limits and withinthese
limits his fundamental rights are unaffected.

The two principal law officers of the State have been arid still aretheAttorney-GeneralandtheSolicitor-Generalbut
under the present Constitution unlike in the 1946 Constitution, the Attorney-General has alone beengivencertainspecific
powers and duties. NodoubttheAttorney-General,theSolicitor-Generalandtheotherlawofficersarethelegal
representatives and advisers of the State. As in England here too the Attorney-General is primarily an officer oftheState
and is in that sense an officer of the Public.

Mr. H. W. Jayewardene, Q.C., cited Halsbury's Lava of England, 4th Edn., Vol. 8, p. 1274, where itisstatedthatneither
the Attorney-General nor the Solicitor-General may engage in private practice.

In reply to that Mr. Pasupathy in a written submission referredustoVol.3,Halsbury'sLawsofEngland,4thEdn.,
paragraph 1125, note 3, where it is stated that the Attorney-General and the Solicitor-General in England maynotundertake
any business on behalf of a private client. (Treasury Minute dated 5th July, 1895). The fact that this prohibitionisbased
on a Treasury Minute as far back as 1895 would indicate that the State wanted their services for itself whilebeinginthe
employment of the State. However, paragraph 1126 deals with other offices the holding of which is deemed tobeinconsistent
with practice as a barrister and at page 594 according to note11,a"practisingbarrister"meansabarristerwhois
entitled to practice and who holds, himself out as ready to do so not being otherwise employed in a whole time occupation. "

The various judgments of the Supreme Court also referred to envisage the limitations in regard to the Law Officers byvirtue
of the conditions of service binding on them.

I have given my anxious consideration to the question raised by Mr. Jayewardene, Q.C., that it is within thecompetenceand
jurisdiction of this Court to decide whether any person could be permitted to appearandMr.Pasupathy'scontentionthat
this Court had no such jurisdiction. It cannot be disputed that if an attorney-at-law is not properlyattiredaccordingto
the rules framed by the Supreme Court, this Court could refuse to see or hear him. If it is broughttothenoticeofthe
court that the attorney- at-law who has noted his appearance, if proved to be one struckofftheroll,thiscourtcould
refuse to hear him. Thus the court has an inherent jurisdiction to see that proceedingsbefore it are regularly conducted.

The objection here is not one of enrolment or removal of an attorney-at-law which is withintheexclusivejurisdictionof
the Supreme Court as laid down in section 42 of the Judicature Act, No. 2of1979.Theobjectionthathasbeenraised
relates to the marking of an appearance as a private attorney-at-law in this particular case by the holder of theofficeof

Mr. H. W. Jayewardene, Q.C., referred us to the case of O'Toole v. Scott (8) 242 and 243. Lord Pearsonreferredtoseveral
cases and held that the general principle was that, subject tousageorstatutoryprovisions,CourtsorTribunalsmay
exercise a discretion whether they will allow any, and what persons, to act as advocates before them.

I have examined the office of Attorney-General, his powers and duties in detail and come to theconclusionthatheisan
attorney-at-law employed in the Public Service as afull-timeemployeeoftheRepublic.Ihavecometothefurther
conclusion that the exercise of his fundamental right topractiseasanyprivateattorney-at-lawhasbeenvoluntarily

Wold Wide Shipping available for all merchandise