Legal Services and Laws of Sri Lanka
SLR - 1992 Vol.1, Page No - 286
DISSANAYAKE, ASSISTANT COMMISSIONER OF CO-OPERATIVE
DEVELOPMENT AND OTHERS
M. D. H. FERNANDO, J. AND
S.C. REFERENCES 1 to 17/91 (Consolidated)
C.A. APPLICATIONS 1060/85, 713/83, 1528/83, 1373/82, 1069/84, 27/84, 32/84, 1006/84, 1068/84, 1267/84, 1666/84, 1623/84,
32/85, 62/85,559/85, 344/85, 976/85
31 JULY AND 01 AUGUST, 1991.
Judicial Power - Does arbitrator appointed by the RegistrarofCo-operativeSocietiesunderSection58(2)oftheCo-
operative Societies Law, No. 5 of 1972 exercise judicial power ? - HasappointmenttobemadebytheJudicialService
Commission in terms of Article 114(1) of the Constitution ? - Are the words"JudicialOfficer"appearinginArticle170
applicable in construing the provisions of Article 114(1) ?- Can an appointmentand/ororderofanarbitratorappointed
under the Co-operative Societies Law be questioned in a court of law ? - Constitution, Articles 4(c), 114, 168(1) and170-
Interpretation Ordinance, Section 16(1) - Co-operativeSocietiesLaw,Section58(2)-Rule49(v)oftheCooperative
Societies (Special Provisions) Act, No. 34 of 1970: "
Acting under section 58(2) of the Co-operative Societies Law,No.5of1972,theRegistrarofCo-operativeSocieties
referred certain disputes falling within S. 58(1) (c) of the said Law for arbitration. Parties aggrievedbytheawardsof
such arbitrators or by the decisions of the Registrar on appeal, made applications to the Court of Appeal for ordersinthe
nature of writs of certiorari. The following questions which arose in the course of the hearing ofthoseapplicationswere
referred by the Court of Appeal to the Supreme Court, under Article 125 of the Constitution.
1. Does an arbitrator appointed by the Registrar of Co-operative Societies in terms ofSection58(2)oftheCo-operative
Societies Law, No. 5 of 1972 fall into the category of court, tribunal or other institution exercising judicialpowerunder
Article 4(c) of the Constitution ?
2. Has the appointment of the said arbitrator to be made by the Judicial Service Commission in terms of Article 11 4(1) of
the Constitution ?
3. Is the interpretation of the words "Judicial Officer" appearing in Article 170 applicable for thepurposeofconstruing
the provisions of Article 114(1) of the Constitution.?
4. In any event, can the appointment and/or the order of an arbitrator appointed undertheCo-operativeSocietiesLawbe
questioned in those proceedings in as much as the said Law constitutes an existinglawintermsofArticle168ofthe
(1) The Registrar is an institution exercising judicial power within the meaning of Article 4(c) and an arbitratorappointed
by the Registrar is a part of such institution.
(3)Article 170 cannot apply in its entirety to Article 114, because the appointment and dismissal of Judges oftheSuperior
Courts and the High Courts is (by virtue of Articles 107 and 111) outside the purview oftheJudicialServiceCommission.
The words "other than in Article 114" occurring in Article 114 could mean either that the definition is totallyinapplicable
to Article 114 or that it is inapplicable only to the extent that the contrary provision is made to Article114(5).Clearly
the latter is the correct position. To hold otherwise would mean that "Judicial Officer" inArticle114isundefined it
would open the door to the argument that this phrase shouldbelimitedtothosewhoholdofficeasDistrictJudges,
Magistrates and other Judges traditionally so regarded, which was decisively rejected both in Senadhira (6), bySansoniJ.,
(as he then was) who held that that phrase included not only the officers of the established courts but also thoseagainto
them and in Ranasinghe (3), by the Privy Council. The definition of "judicial officer" inArticle170appliestoArticle
114(1) save as otherwise expressly provided in Article 114(6) : in relation to Article114(1)thatdefinitionwillapply
with the omission of the words "a Judge of the Supreme Court or a Judge of the Court of AppealoranyJudgeoftheHigh
Cases referred to:
1. Karunatillake v Abeyweera (1966) 68 NLR 503,504-5.
2. Jayasekera v. Minuwangoda Co-operative Society (1970) 73 NLR 354, 355, 356.
3. Bribery Commissioner v. Ranasinghe (1962) 64 NLR 449(1964) 66 NLR 73, 74 (PC).
4. R. v. Liyanage (1962) 64 NLR 313, 359.
5. Liyanage v. The Queen (1965) 68 NLR 265, 281, 283, (PC).
6. Senadhira (1961) 63 NLR 313.
7. Don Anthony (1962) 64 NLR 93.
8. Piyadasa (1962) 64 NLR 385.
9. Jailabdeen v. Danina Umma (1962) 64 NLR 419, 420, 421.
10. Ibrahim v G. A. Vavuniya (1966) 69 NLR 217.
11. Anthony Naide (1966) 68 NLR 558, 570.
12. Walker Sons & Co. Ltd. v Fry (1965) 68 NLR 73, 101.
13. Moosajees v. Fernando (1966) 68 NLR 414, 418, 424.
14. Panagoda v. Budinis Singho (1966) 68 NLR 490.
15. Xavier v. Wijeyekoon (1966) 69 NLR 97.
16. Ranaweera v. Wickramasinghe (1961) 72 NLR 553, 558.
17. Visuvalingam v. Liyanage (1983) 1 Sri L R 203, 216, 217.
18. Shanmugam v. Commissioner of Registration of Indian and Pakistani Residents (1962) 64 NLR 29, 33.
19. Gunaseela v. Udugama (1966) 69 NLR 193.
REFERENCE to the Supreme Court under Article 125 of the Constitution by the Court of Appeal.
Sanath Jayatilleke for the petitioner in No. 1/91.
Kithsiri Gunaratne with Miss S. M. Senaratne and Saliya Mathew for the petitioners in Nos. 2/91 and 3/91.
J. C. Boange for the petitioner in Nos, 5/91 to 15/91 and 17/91.
Rohan Sahabandu for the petitioner in No. 16/91.
K. C. Kamalasebayson, SSC with K. Siripavan, SSC and K. Indatissa, SC for the Deputy/Assistant Commissioner of Co-operative
Development in Nos. 1/91 to 17/91.
Bimal Rajapakse for the Respondent Societies in Nos. 1/91, 8/91, 14/91 and 15/91.
H. D. Gomes for the Respondent Societies in Nos. 2/91 and 3/91.
T. M. S. Nanayakkara for the Respondent Society in Nos. 13/91, 16/91 and 17/91
27th March, 1992.
M. D. H. FERNANDO, J.
Section 58 of the Co-operative Societies Law, No. 5 of 1972, provides:
"58 (1) If any dispute touching the business of a registered society arises ...
(c) between the society or its committee and any officer or employee of the society, whether past or present, or any heir or
legal representative of any deceased officer or employeeor
such disputes shall be referred to the Registrar for decision.
(2) The Registrar may, on receipt of a reference under subsection (1) -
(a) decide the dispute himself, or
(b) refer it for disposal to an arbitrator or arbitrators.
(3)Any party aggrieved by the award of the arbitrator or arbitrators may appeal therefrom to the Registrar ..."
Rule 49(v) of the Co-operative Societies Rules, 1974, requires an arbitrator to be appointed by the Registrar.
Acting under section 58(2), the Registrar of Co-operative Societies referred certain disputes fordisposaltoarbitrators.
It was agreed, for the purpose of these references, that these disputes fell within paragraph (c) of section58(1).Parties
aggrieved by the awards of such arbitrators, or by the decisions of the Registrar on appeal, made applications totheCourt
of Appeal for orders in the nature of writs of certiorari. The following questions which arose in the course ofthehearing
of those applications were referred by the Court of Appeal to this Court under Article 125 of the Constitution:
"1. Does an Arbitrator appointed by the Registrar of Co-operative Societies in terms of Section58(2)oftheCo-operative
Societies Law No. 5 of 1972 fall into the category of Court, Tribunal or other Institution exercisingjudicialpowerunder
Article 4(c) of the Constitution ?
2. Has the appointment of the said Arbitrator to be made by the Judicial Service Commission in termsofArticle114(1)of
the Constitution ?
3. Is the interpretation of the words "judicial officer" appearing in Article 170 applicable for thepurposeofconstruing
the provisions of Article 114(1) of the Constitution ?
4. In any event can the appointment and/or the order of an arbitrator appointedundertheCo-operativeSocietiesLawbe
questioned in these proceedings in as much as the said Law constitutes an existinglawintermsofArticle168ofthe
The following constitutional provisions are relevant:
The judicial power of the People shall be exercised by Parliament through courts,tribunalsandinstitutionscreatedand
established, or recognized, by the Constitution, or created and established by Law ...
(1) The appointment, transfer, dismissal and disciplinary control of judicial officers, and (notwithstanding anything tothe
contrary in Chapter IX) of scheduled public officers, is vested in the (Judicial Service) Commission.
(6) In this Article ... judicial officer does not include a Judge of the Supreme Court or of the Court of Appealorofthe
Unless Parliament otherwiseprovides,alllaws,writtenlawsandunwrittenlaws,inforceimmediatelybeforethe
commencement of the Constitution, shall mutatis mutandis, and except as otherwise expresslyprovidedintheConstitution,
continue in force.
"judicial officer", other than in Article 114, means any person who holds office as -
(a) a Judge of the Supreme Court or a Judge of the - Court of Appeal:
(b) any Judge of the High Court or any judge, presiding officer or member of any other Court of First Instance,tribunalor
institution created and established for the administration of justice or for the adjudication of any labour or otherdispute
but does not include a person who performs arbitral functions or a public officer whose principal duty or dutiesisorare
not the performance of functions of a judicial nature ...
Section 58 corresponds to section 53 of the Co-operative Societies Ordinance (Cap. 124) which wasconsideredbyH.N.G.
Fernando, S.P.J., (as he then was), in Karunatillake v. Abeyweera (1):
"... As between a society and its members, disputes can well arise as to the construction and effect of therulesgoverning
relations between members inter se and the relations between a society and its members, as to whether a society oramember
had acted in breach of the rules, as to the qualification of members to hold office in the society (etc) ... Itwasclearly
the intention of the Legislature that such disputes should be finally decided bytheRegistrar,intheexerciseofhis
supervisory functions, or by arbitrators appointed by him. Disputed claimsbyasocietyagainstitsmembers,intheir
capacity as such, were also in contemplation, although it is arguablewhetherSection45appliedalsotootherclaims
against members, not arising by reason of their membership of a society, butarisinginsteadupontransactionsinvolving
ordinary contractual rights and obligations or else arising in delict. Except inregardtoclaimsofthenaturelastly
mentioned, I have no doubt that the determination by the Registrar or anarbitratorofadisputeaffectinganyofthe
matters just mentioned does not involve the exercise of the judicial power of the State.
An "officer" of a co-operative society is not necessarily in a contractual relationshipwiththesociety...Butifin
addition an officer has custody or control of goods or funds of the society, or has power to negotiatecontractsonbehalf
of the society, then contractual relationships, such as that between principal and agent, can existbetweenasocietyand
its manager. In this way disputes can arise as to the due performance of contractual rights and obligations. Intheinstant
case ... the liability of the manager arises at the least upon an implied contract, in thenatureofagency.Thedispute
concerning the existence of this liability and the duty to perform it is an ordinary civildisputewithinthetraditional
jurisdiction of the Courts. It is not such a dispute as might, prior to the passing of the Act No.21of1949,havebeen
determined under the special procedure provided by the Co-operative Societies Ordinance. The amending Act purportedtooust
the jurisdiction of the Courts over disputes which at the time when the Constitution came into force were exclusivelywithin
that jurisdiction. In the language of recent judgments, there has thus been a clear encroachment ofthepowersexclusively
vested in the Courts."
This decision was sought to be distinguished in Jayasekera v. Minuwangoda Co-operative Society (2),onthebasisthatit
applied only to claims against an officer, and not to claims against a member, that such claims could have been referredto
arbitration prior to the 1947 Constitutionand that the reference of suchclaimstoarbitrators,notappointedbythe
Judicial Service Commission ("the J.S.C."), continued to be valid. H. N. G. Fernando, C.J., held that adjudication uponsuch
claims against members did involve the exercise of judicial power:
When the Ceylon (Constitution) Order in Council of 1946wasenactedthereclearlywascontemplationthatpre-existing
Ordinances did contain provisions which would conflict with provisions of the Order inCouncil.Accordingly,s.88ofthe
Order in Council authorised the Governor to make Proclamations amending, repealing ormodifyingwrittenlawinorderto
bring such law into conformity with the provisions of the Constitution. Numerous amendments were in factmadeinpursuance
of this authoritybut the fact that a particular written law was not thus amended cannotinreasonhavetheconsequence
that the law does not conflict with the Constitution or that it must be regarded as valid despite such conflict.
A single instance suffices to make the position clear. Section 54 of the Courts Ordinance, which formerlyprovidedforthe
appointment of District Judges and Magistrates by the Governor was altered by deleting the reference to the Governor'spower
of appointment. That alteration was made for the quite obvious reason that the power of appointment of judicial officerswas
vested by the Constitution in the Judicial Service Commission, and thatthealterationwasnecessarytoavoidconflict
between s. 54 and the Constitution. But even if (by accident or deliberately) no such alteration had been made ins.54,the
Governor would have ceased to be vested with that power when the Constitution came into operation. Thus themerefactthat
s.45 of the Co-operative Societies Ordinance was not amended by a Proclamationunders.88oftheConstitutiondoesnot
justify an argument that all its provisions continued to be valid despite the fact that some of them were notinconformity
with overriding provisions of the Constitution."
It is common ground that here the disputes referred to arbitrators arose from transactions with officers or members
involving ordinary contractual rights and obligations.
The cumulative effect of the contentions of learned Counsel who challenged the validity of the appointment and the ordersof
the Registrar and the arbitrators may be summarised thus:
1. In view of the aforesaid decisions, the resolution of the disputes involved the exercise of judicial power
2. Article 4(c) precluded the conferment of judicial power on the Registrar and on arbitrators, who werenot"institutions"
created, established or recognised by the Constitution or by Parliament
3. Although Section 58(2) and Rule 49(v) were "existing law", within the meaning of the Constitution,
(a) they had to be read mutatis mutandis (in terms of Article 168(1)), necessitating the substitutionof"JudicialService
Commission" for "Registrar" in Rule 49(v)and
(b) Articles 114 and 170 "expressly provided" (within the meaning of Article 168(1)) for judicial officerstobeappointed
by the Judicial Service Commission, so that the Registrar or an arbitrator could determine a disputeonlyifappointedby
that Commission under and in terms of Article 114.
Learned Senior State Counsel did not contend that the resolution of the disputes did not involvetheexerciseofjudicial
power. His principal contention was that subsequent to the aforesaiddecisions,ParliamenthadenactedtheCo-operative
Societies (Special Provisions) Act, No. 34 1970, with a two-thirds majority. That Act expressly provided that it shall beas
valid and effectual as though it was a Constitutional amendmentthat every power, duty and functionconferredandimposed
on, and assigned to, the Registrar under section 53 of the Co-operative Societies Ordinance, as amended fromtimetotime,
was deemed to have been, and to be, validly conferred, imposed and assignedandthateveryarbitratorappointedbythe
Registrar, was deemed to have been, and to be, validly appointed. Therefore, he submitted, the exercise of judicial powerby
the Registrar and arbitrators under section 53 of the Ordinance,despitewantofappointmentbytheJ.S.C.,wasmade
Constitutionally proper. Thereafter the Co-operative Societies Law, No. 5 of 1972, repealed the earlier Ordinanceandother
statutes (see section 73), but did not repeal Act No. 34 of 1970. Section 16(1) oftheInterpretationOrdinance(Cap.6)
provides that where in any written law reference is made to any written law which is subsequentlyrepealed,suchreference
shall be deemed to be made to the written law by which such repeal is effected. Accordingly, the provisions of Act No. 34of
1970 applied to the 1972 enactment. Thus when Article 168(1) was enacted, it had been the law at least forthepreceding8
years that the Registrar and arbitrators could exercise judicial power when acting under section58(oritspredecessor).
Section 58(2), Rule 49(v) and Act No. 34 of 1970 were thus "existingwrittenlaw",keptinforcebyArticle168 the
application of the mutatis mutandis principle didnotrequireappointmentbytheJ.S.C. andtherewasno"express
provision" in the Constitution which repealed or modified those provisions. Alternatively, hesubmittedthat-theRegistrar
was a public officer "whose principal duty or duties is or are not the performance of functions of ajudicialnature",and
accordingly was not included in the definition of "judicial officer" in Article170 appointmentbytheJ.S.C.wasnot
Following Karunatilleke (1) and Jayasekera,(2) I hold that the determination by the Registrar or anarbitratorofdisputes
arising from transactions involving ordinary contractual rights and obligations involves the exercise of thejudicialpower
of the People. The other contentions arising in this case require this Courttoconsider(a)whatinstitutionscreated,
established or recognised by the Constitution or by Parliament may exercise judicial power, (b) how the officers andmembers
of such institutions should be appointed, (c) how such appointments should be made when such institutions (or theirofficers
or members) have mixed judicial and non-judicialfunctions,and(d)whetherthepositionisdifferentinregardto
institutions established by laws enacted prior to the Constitution.
The relevant provisions of the 1978 Constitution were not enacted in vacuo, butinthebackgroundoftheConstitutional
provisions, judicial decisions and unsettled problems oftheprecedingthreedecades,towhichabriefreferenceis
necessary. The Ceylon (Constitution and Independence) Orders-in-Council, 1946and1947,(the"1947Constitution"),were
interpreted in a series of decisions.
The 1947 Constitution did not expressly provide for a separation of powers and functions"noexpressmentionismadeof
vesting in the judicature the judicial power which it already had and was wielding in itsdailyprocessundertheCourts
Ordinance"however "there was no compelling need ... to make any specific reference to thejudicialpoweroftheCourts
when the legislative and executive powers changed hands" (i.e. in consequence of the change of sovereigntyeffectedbythe
1947 Constitution)"but the importance of securing the independence of judges, and maintainingthedividinglinebetween
the judiciary and the executive" (and also, one should add, thelegislature)"wasappreciatedbythosewhoframedthe
Constitution". The structure of the Constitution and in particular the provisions fortheindependenceofJudgesofthe
Superior Courts and for the appointment of other judges by an independent Judicial Service Commission "manifest anintention
to secure in the judiciary a freedom from political, legislative and executive control. Theyarewhollyappropriateina
Constitution which intends that judicial power shall be vested only in the judicature.Theywouldbeinappropriateina
Constitution by which it was intended that judicial powershouldbesharedbytheexecutiveorthelegislature.The
Constitution's silence as to the vesting of judicial power is consistent with its remaining, where it had lain for morethan
a century," (i.e. Under the Charter of Justice, 1833, and the Courts Ordinance, 1889) "in the hands of the judicature. Itis
not consistent with any intention that henceforth it should pass to, or be shared by,theexecutiveorthelegislature",
"there exists a separate power in the judicature which under the Constitution as it stands cannot be usurped or infringedby
the executive or the legislature." (Bribery Commissioner v. Ranasinghe.(3) R. v. Liyanage,(4): Liyanage v. The Queen (5)).
After some initial uncertainty, the nature of "judicial power"wasclarified:ahistoricaltestwasalsoappliedand
judicial power was held to include powers which, though administrative in nature, have traditionally been ancillarytothe
judicial power, such as the power to nominate a Bench to hear a case (Liyanage,(4)).
In regard to Bribery Tribunals, whose members were not appointed by the J.S.C., in Senadhira,(6) it wasnotcontestedthat
the power to try, and to reach findings of guilt or innocence, could lawfullybeconferredonsuchTribunals theonly
objection was that such tribunals could not convict and sentence an accused, and thisobjectionSansoni,J.(ashethen
was), and T S. Fernando, J. upheld. ThiswasfollowedinDonAnthony,(7)thoughattractedbythecontentionthatin
ascertaining and declaring the liabilities of an accused such tribunals were in fact exercisingjudicialpower,theCourt
upheld a technical procedural objection and refrained from deciding that matter. In Piyadasa,(8)Tambiah,J.,sweptaside
the procedural objection, and went on to hold that no judicialpowercanbeconferredonBriberyTribunalsexceptby
constitutional amendment. The matter was finally resolved in two judgments of H. N. G. Fernando, J., (ashethenwas).He
held in Jailabdeen v. Danina Umma (9).
"There is nothing illegal, in the sense of conflict with the Constitution, in a statutewhichestablishesanewjudicial
tribunal with jurisdiction (whether exclusive or not) over particular charges or causes. Indeed thelegislaturemightwell
consider it necessary in the public interest to constitute such tribunals,andonecanthinkofmanyreasonsforthe
adoption of such a course ...
There is no provision in the Constitution restricting the establishment of judicial offices and itfollowsthataBribery
Tribunal to which persons are duly appointed in accordance with the proper law can legally exercise all the powers whichthe
Act confers upon such a tribunal. Butsinceatribunalhavingsuchpowersisajudicialoffice,allthatIfind
unconstitutional in the Bribery Act is the power given to the Governor-General to appoint the panelfromwhichmembersof
such a tribunal have to be constituted. The objection thus goes not to legal validity ofthetribunalitself,ortothe
exercise of judicial power by it, but rather to the right and authority of the persons constituting the tribunal toexercise
the powers conferred by the Act"
and in Ranasinghe,(3)
"... there is no question of a wholesale challenge of the entire Act, that the Legislature can validly confer judicialpower
on specially created tribunals, and that the objection which lies against a conviction by a particularBriberyTribunalis
that the judicial power validly vested in the special tribunals cannot be lawfully exercised by persons who are appointedto
the Tribunal by the Governor-General, and not by the Judicial Service Commission."
On appeal, the Privy Council - although dealing principally with the duty of the Court to look for the Speaker'scertificate
to ascertain whether the Constitution has been validly amended - was "in accord with the view soclearlyexpressedbythe
Supreme Court that the orders made against the respondent are null and inoperative on the ground that thepersonscomposing
the Bribery Tribunal which tried him were not lawfully appointed to the Tribunal".
These decisions recognised that the creation and establishment by Parliament of courts, tribunals andinstitutionsforthe
exercise of the judicial power of the State was not inconsistent with the Constitution or the principle of the separationof
powersall that wasconstitutionallynecessarywascompliancewithconstitutionalprovisionsastothemannerof
appointment of the officers and members thereof. These principles are now expressly entrenchedinArticles4(c),114and
It is necessary to consider whether the Registrar is an "institution" within the meaning ofArticle4(c).Thisexpression
occurs in several other provisions of the Constitutione.g. Articles 105 and 156. It is not confined to a bodyofpersons,
and will include an "institution" consisting of asingleofficerormember.ThustheOmbudsman,theCommissionerof
Elections, and the Public Trustee are "institutions". The Registrar is also an "institution".Thenumerouspowers,duties
and functions statutorily entrusted to the Registrar cannot be exercised and performed by him single-handed. Hence section2
enables certain other public officers to exercise all or any of the powers of the Registrar.Section58alsopermitsthe
Registrar to refer a dispute to an arbitrator (appointed by him in terms of Rule 49(v)). But since an appealliesfromthe
award of an arbitrator to the Registrar himself, the scheme of that enactment is that the ultimate decision of adisputeis
by the Registrar. It is true that such an arbitrator may be appointed ad hoc, but he is nevertheless part of theinstitution
created by that law. Article 4(c) does notprecludethecreationandestablishment,ortherecognition,ofsuchan
institution. Since the Co-operative Societies Law was enacted prior to the Constitution, thequestionalsoariseswhether
the Registrar is an institution "created and established", or "recognised",bytheConstitutionorbylaw,withinthe
meaning of Article 4(c). Article 105(2) provides that all institutions created and established by existing writtenlawfor,
inter alia, the adjudication of industrial and other disputes shall be deemed to be institutions created andestablishedby
Parliament. The Registrar is thus an "institution" deemed to be created andestablishedbyParliament andisalso,by
virtue of Articles 105(2) and 168(1), "recognised" by the Constitution.
if created by a statute enacted after the Constitution, the question wouldarisewhetheranofficerormemberofthat
institution (a) falls within the definition of "judicial officer", within the meaning of Article 170, and, ifso,(b)must
be appointed by the J.S.C. This would have had to be determinedsolelybyreferencetoArticle170.Primafacie,the
Registrar would be an institution created and established "for the adjudication of any labour or, other dispute"withinthe
meaning of Article 170, and would therefore be a "judicial officer". However,havingregardtotheextentofthenon-
judicial statutory duties and functions of the Registrar under the 1972 Law, it is also clear thathis"principaldutyor
duties is or are not the performance of functions of a judicial nature", for his judicial functionsundersection58form
only a small part of the duties of his office. The Registrar would therefore be excluded from the definition.Thisconfirms
that there is no inconsistency between Article 170, and the pre-Constitution legislation whichestablishedtheinstitution
of the Registrar. In coming to this conclusion, I have also had regard to judicialdecisionsinthebackgroundofwhich
Article 170 was enacted.
The usurpation or infringement of the judicial power was struck down - in the Bribery Tribunal casesin relationtoQuazis
(in Jailabdeen)and in regard to the imposition of fines under the Licensing of Traders Act for contravention ofthePrice
Control Act (in Ibrahim v. G. A. Vavuniya (10)). However, it was held in Anthony Naide, (11) that the "Legislature haspower
to abolish the jurisdiction of the Civil Courts of originaljurisdictionandthusindirectlytoabolishtheappellate
jurisdiction of the Supreme Court, provided of course that the legislature does not attempt to arrogate such jurisdictionto
itself or to transfer such jurisdiction to some authority not holding judicial office." H. N. G. Fernando, S.P.J.,continued
to entertain doubts as to whether an ordinary law could abolish the jurisdiction oftheSupremeCourtinregardtothe
prerogative writs, for "it may well bethattheConstitutionhas,insection52,recognisedandadopted,andthus
incorporated, some provisions of the Courts Ordinance which confer jurisdiction on the Supreme Court". TheConstitutionnow
entrenches some of the jurisdictions of the Supreme Court andoftheCourtofAppeal,precludinganerosionofsuch
jurisdictions by ordinary law. Other jurisdictions, however, can be taken away by ordinary law, provided ofcoursethatif
they are transferred to other bodies, the officers or members thereof must be appointed in terms ofArticles114and170.
Although it was held in Karunatilleke and Jayasekera that the power to determine disputes under section 58 was at one timea
jurisdiction vested in the civil courts, and that the transfer of that jurisdiction to persons not appointedbytheJ.S.C.
constituted an usurpation of jurisdiction. Act No. 34 of 1970 constitutionally validated that transferofjurisdiction.In
the result, when the Constitution was enacted in 1978, no question arose oftheusurpationofajurisdictionpreviously
vested in the civil courts.
The question of mixed functions was considered in several decisions. In WalkerSons&Co.Ltdv.Fry,(12)H.N.G.
Fernando, S.P.J., observed that -
"Section 55 of the Constitution . . . failed to preclude the possibilityoftheentrustmentofjudicialpowertosome
authority bona fide established for administrative purposes. If administrative officials, the majority ofwhosepowersand
functions are administrative, are in addition entrusted on grounds of expediency with judicial power, there would notinmy
opinion be conflict with section55.Butif,undercoverofexpediency,judicialpowersarevestedinanoffice
administrative only in name, then the principle that you cannot do indirectly that which you cannot do directlywillapply.
That principle will also apply if there is frequent entrustment of judicial power to unpaid functionaries".
However, after thePrivyCouncildecisioninLiyanagev.TheQueen,(5)hemodifiedthisview(seeMoosajeesv.
Fernando,(13)) in relation to post-Constitution legislation - holding that there could be no erosion of judicialpower.But
he maintained this view in regard to pre-Constitution legislation, holding in Panagodav.BudinisSinghe,(14)thatwhere
"the holder of some office established mainly for administrative purposes was entrusted also withjudicialpowernecessary
for effectively securing the purpose of the establishment of the office", such officer could validly exercise judicialpower
despite want of appointment by the J.S.C. Thus the office of Commissioner for Workmen's Compensation,establishedpriorto
the Constitution, was an administrative tribunal, a small part of its functionsbeingjudicial,andwasnotajudicial
office. Dealing with a similar question in regard to powers exercised byofficersadministeringtheincometaxlawsin
Xavier v. Wijeyekoon,(15) he held that the Commissioner of Inland Revenue, in imposing apenaltyformakinganincorrect
return, does not exercise judicial powersuch a penalty is a civil, rather than a criminalsanction,andisintendedto
protect the revenue against loss and expense arising from thetaxpayer'sfraud.Inapprovingthatdecision,thePrivy
Council in Ranaweera v. Wickramasinghe,(16) held that although such public officers have toactjudicially,theyarenot
holders of judicial office"where the resolution of disputes by some Executive Officer can properlyberegardedasbeing
part of the execution of some wider administrative function entrusted to him, then he should be regarded as stillactingin
an administrative capacity, and not as performing some different and judicial function". In this background, it maywellbe
that Article 170 does not permit an erosion of existing jurisdictionsnor the mala fide entrustmentofjudicialpowerto
public officers, in order to achieve indirectly a result which cannot be achieved directlyand onlyallowstheconferment
of some judicial power or function which can properly be regarded as being ancillary to somewideradministrativefunction
entrusted to an executive officer. Even if Article 170 is so construed, the power conferred on the Registrarsatisfiesthis
But this may not necessarily suffice to exclude an arbitrator from the definition of "judicialofficer".IftheRegistrar
appoints as arbitrator a private individual, such arbitrator would not be a "public officer" as defined in Article170,for
a public officer is one appointed in terms of ChapterIXoftheConstitution appointmentbytheRegistrarwouldbe
inconsistent with those provisions. In any event, since such an arbitrator would perform no other function,hewouldbea
presiding officer or member of an institution created and established for the adjudication ofdisputes,butwouldnotbe
excluded from the definition of "judicial officer" on the ground that he has mixed functions. IftheRegistrarappointsa
person who is already a duly appointed "publicofficer",yetthequestionwhethersuchpersonisexcludedfromthe
definition would depend on whether his executive functions exceed his judicial functions. However, Article 170isprimarily
prospective, and we have to turn to Article 168(1) to ascertain what effect Article 170 has on the continuanceinforceof
existing law authorising the appointment of an arbitrator by the Registrar. "Written Law" includessubordinatelegislation,
and hence section 58, Act No 34of1970,andRule49(v),constitutewrittenlawsinforceimmediatelybeforethe
commencement of the Constitution. They continue in forcedespiteinconsistencywiththeConstitution,exceptinthree
specified situations. The first exception does not arise for consideration as Parliament has made noprovisioncontraryto
such "existing written law". The modification of statutory provisions mutatis mutandis is where the circumstances demandit
where change is essential or necessary, and not merely useful (see Visuvalingam v.Liyanage(17).Section2oftheCo-
operative Societies Law provides that "there may be appointed a Registrar of Cooperative Societies", but doesnotstipulate
the appointing authorityif he is not a "judicial officer", appointment by the J.S.C. is not requiredthere isnothingin
section 2 to be modified. Rule 49(v) is undoubtedly inconsistent with Article 170, but the mutatismutandisruledoesnot
require the removal of every inconsistency. It is relevant to mention that Article16(1)makesallexistingwrittenlaw
valid and operative notwithstanding inconsistency with fundamental rights since inconsistency of such a seriousnaturedoes
not invalidate existing writtenlaw,IcannotregardArticle168(1)asrequiringtheeliminationoflessserious
inconsistencies. Finally, it is necessary to consider whether it has been "otherwise expressly provided in theConstitution"
(i.e. in Articles 114 and 170) that the Registrar and/or arbitratorsshouldbeappointedbytheJ.S.C.Anexampleof
"express provision" is to be found in Article 169(1) whichdeemsanyinconsistentprovisionsoftheAdministrationof
Justice Law to be repealed. Here there is no "express provision"ofthatkind.However,tobe"expressprovision"in
relation to some matter, specific mention of thatmatterisnotessential for"expressprovision"isprovisionthe
applicability of which does not arise by inference, and even if there is no specific mention,itissufficientifitis
directly covered by the language used: Shanmugam v. Commissioner for RegistrationofIndian&PakistaniResidents(18).
While Articles 114 and 170 are inconsistent with the existing written law, andwhilethenecessaryimplicationofthose
Articles, in the case of arbitrators, is that appointment by the J.S.C. is required, they cannot beregardedasIexpress
provision" to that effect, for they do not make specific mention or directly covertheappointmentoftheRegistrarand
arbitrators. Had Article 168(1) been omitted, there would have beenaconflictbetweenpre-existingwrittenlawanda
constitutional provisionas in the example given in Jayasekera, (2) it could have been argued that the statutoryprovisions
ceased to be valid as they did not conform to overriding provisions of the Constitutionor as in Gunaseela v. Udugama(19),
jurisdictions. Article 168(1) precludedsuchcontroversies:mereinconsistencybetweenexistingwrittenlawandthe
Constitution did not invalidate the former thatresultwouldhappenonlyiftherewas"expressprovision"inthe
I therefore determine the questions referred to this Court as follows:
1. The Registrar is an institution exercising judicial power, withinthemeaningofArticle4(c),andanarbitrator
appointed by the Registrar is a part of such institution.
3. Article 170 cannot apply in its entirety to Article 114, because the appointment and dismissal of Judges oftheSuperior
Courts and the High Court is (by virtue of Articles 107 and 111) outside the purview of the Judicial Service Commission.The
words "other than in Article 114" occurring in Article 114 could mean either that the definition is totallyinapplicableto
Article 114 or that it is inapplicable only to the extent that contrary provision is madeinArticle114(6).Clearlythe
latter is the correct position. To hold otherwise would mean that "judicial officer" in Article 114 isundefined itwould
open the door to the argument that this phrase should be limited to those who hold officeasDistrictJudges,Magistrates
and other judges traditionally so regarded, which was decisively rejected both in Senadhira (6) at p.320-1), by Sansoni,J.,
(as he then was), who held that that phrase included not only the officers of the established Courts but also thoseakinto
themand in Ranasinghe, (3) by the Privy Council. The definition of "judicial officer" in Article170appliestoArticle
114(1), save as otherwise expressly provided in Article 114(6): in relation to Article114(1)thatdefinitionwillapply
with the omission of the words "a Judge of the supreme Court or a Judge of the Court of AppealoranyJudgeoftheHigh
BANDARANAYAKE, J. - I agree.
AMERASINGHE, J. - I agree.