Legal Services and Laws of Sri Lanka


SLR-1994 Vol.1-P293

SLR - 1994 Vol.1, Page No - 293

WERAGAMA
v
EKSATH LANKA WATHU KAMKARU SAMITHIYA AND OTHERS
SUPREME COURT
FERNANDO, J.
DHEERARATNE, J. AND
WADUGODAPITIYA, J.
S.C. APPEAL NO. 45/94
H.C. (WP) NO. 21/92
OCTOBER 28TH, 1994.

Certiorari and Mandamus - High Court of a Province - Jurisdiction to issue writsofCertiorariandMandamusagainstthe
President of a Labour Tribunal - Constitution Article 154 P(3) and (4) - High Court oftheProvinces(SpecialProvisions)
Act No. 19 of 1990, s. 3.

Article 154P introduced by the Thirteenth Amendment did not confer on High Courts writ jurisdiction in respect ofPresidents
of Labour Tribunals.
Nor did Parliament by Law confer such a jurisdiction on High Courts under and in terms of Article 154 P(3) (C).

If a law or a statute is covered by a matter in the (exclusive) Provincial Council List, but not otherwise, theexerciseof
powers thereunder are subject to the writ jurisdiction of the High Court.

Apart from an error in punctuation (semicolon to be ignored or replaced byacomma)themeaningofArticle154P(4)is
perfectly clearand there is no ambiguity, absurdity or injustice justifying modification oflanguage.IntheThirteenth
Amendment there was no intention to devolve power. There was nothing more than a re-arrangement of the jurisdictionsofthe
judiciary.

The Jurisdiction of the Court of Appeal is not an entrenched jurisdiction because Article 138 provides that it is subjectto
the provisions "of any law", "Hence it was always constitutionallypermissibleforthatjurisdictiontobereducedor
transferred by ordinary law. (of course, to a body entitled to exercise judicialpower).Itwastheabsenceofsucha
provision that made Parliament unable to reduce or affect the jurisdiction of the Court of Appeal under Article 140 because
its jurisdiction under Article 140 and 141 are entrenched butfortheprovisoinsertedbytheFirstAmendment,its
jurisdiction under Article 140 cannot be transferred even to the Supreme Court.

Article 154P(3) did not authorise Parliament, by ordinary law, to confer the writ jurisdiction of the Court ofAppealunder
Article 140 (either exclusively or concurrently) on the High Courts.

Section 3 of the High Court of the Provinces (Special Provisions)ActNo.19of1990,conferredontheHighCourts,
appellate and revisionary jurisdiction in respect of Labour Tribunalsthe phrase "appellateandrevisionaryjurisdiction"
has been used in Article 154P(3) in contradistinction to the writ jurisdiction and hence the same phrase in Section 3cannot
be interpreted to include the writ jurisdiction.

Cases referred to:
1. Swastika Textile Industries Ltd. v. Dayaratne, SC No. 7/92, SC Minutes of 27.10.92.
2.In re the Thirteenth Amendment, [1987] 2 Sri LR 312.
3.In re the Agrarian Services (Amendment) Bill SC Special Determinations Nos. 2 & 4 of 1991 - Decided on 7.02.1991.

APPEAL from order of High Court (W P).
L C. Seneviratne P.C. with Lakshman Perera and Shayamal Jayasinghe for respondent-respondent-appellant.
A. A. de Silva with Nimal Punchihewa for applicant-petitioner-respondent.

November, 04th, 1994.

FERNANDO, J.

In this appeal we have to decide whether the High Court of a Province has jurisdictiontoissuewritsofCertiorariand
Mandamus against the President of a Labour Tribunal.

The President of the Labour Tribunal Avissawella refused hisapplicationtoordertheproductionforinspectionofa
document from which a witness giving evidencewasapparentlyrefreshinghismemory,andthengrantedtheApplicant-
Petitioner-Respondent ("the Respondent") a postponement subject to paymentofcosts.Beingdissatisfiedwiththosetwo
orders, the Respondent applied to the High Court oftheWesternProvince(sittingatAvissawella)forCertiorariand
Mandamus. A preliminary objection by the Respondent-Respondent Appellant ("the Appellant") that the High Courthadnowrit
jurisdiction in respect of a President of a Labour Tribunal was overruled by the HighCourt,relyingonSwastikaTextile
Industries Ltd. v Dayaratne (1), which is contrary to this view of the writ jurisdiction,asIwillshowlaterinthis
judgment - and an article written by Justice Sarath Silva, of which neither the reference nor a copy isinthebrief.The
Appellant appealed to this Court with special leave.

Prior to the Thirteenth Amendment to the Constitution, the jurisdictions of the Court of Appeal included exclusiveappellate
and revisionary jurisdiction (under Article 138), and exclusive "writ jurisdiction" (namely, togranthabeascorpusunder
Article 141, and the other prerogative writs under Article 140). These jurisdictions appliedinteralia,toHighCourts,
District Courts, Magistrate's Courts, Primary Courts and Labour Tribunals.
The relevant provisions introduced by the Thirteenth Amendment are as follows:
"154P (3) Every ... High Court (of a Province) shall -
(a) exercise according to law, the original criminal jurisdiction of the High Court ofSriLankainrespectofoffences
committed within the Province
(b) notwithstanding anything in Article 138 and subject to any law,exerciseappellateandrevisionaryjurisdictionin
respect of convictions, sentences and orders entered orimposedbyMagistrate'sCourtsandPrimaryCourtswithinthe
Province
(c) exercise such other jurisdiction and powers as Parliament may, by law, provide.
154P (4) Every such High Court shall have jurisdiction to issue, according to law,
(a) orders in the nature of habeas corpus in respect of persons illegally detained within the Provinceand
(b) orders in the nature of writs of certiorari, prohibition, procedendo, mandamus, andquowarranto,againstanyperson
exercising within the Province, any power under
(i) any lawor
(ii) any statutes made by a Provincial Council established for that Province, inrespectofanymattersetoutinthe
Provincial Council List."

These amendments affected the appellate, revisionary and writ jurisdiction of the CourtofAppealonlyintworespects.
Firstly, Article 154P (3) (b) conferred appellate and revisionary jurisdiction (but notwritjurisdiction)inrespectof
Magistrate's Courts and Primary Courts (but not Labour Tribunals, or other courts and tribunals)thiswas"notwithstanding
anything in Article 138" (and that Article was in any event "subject to the provisions of the Constitution"), andsoeither
the jurisdiction of the Court of Appeal was protanto transferred to the High Courts or theCourtofAppealandtheHigh
Courts had concurrent jurisdiction. Secondly, Article 154P (4)conferredwritjurisdictionoveranypersonexercising,
within the Province, any power under any law or statute specifiedtherein thiswasnotstatedtobe"exclusive",or
"notwithstanding anything in Articles 140 and 141 ", and hence the High Courts had concurrent jurisdiction with the courtof
Appeal. The Respondent says that "any law" included the enactments underwhichPresidentsofLabourTribunalsexercised
their powers, and that therefore High Courts had writ jurisdiction over Labour Tribunals. Apartfromthat,theRespondent
has an alternative submission: he refers to Article 154P (3) (c) - which empowered Parliament, byordinarylaw,toconfer
other jurisdictions on High Courts - and says that Parliament did by law confer on High Courts writ jurisdictioninrespect
of Presidents of Labour Tribunalsthis, he claims, was done by section3and/orsection7oftheHighCourtofthe
Provinces (Special Provisions) Act, No. 19 of 1990, and/or sections 31 D (4) (b) and 31 DDD of theIndustrialDisputesAct
(Cap. 131) as amended by Act No. 32 of 1990.

Thus the appeal involves two questions:
1. Did Article 154P, introduced by theThirteenthAmendment,conferonHighCourtswritjurisdictioninrespectof
Presidents of Labour Tribunals?
2. Alternatively, did Parliament by law confer such a jurisdiction on High Courts, under and in termsofArticle154P(3)
(c)?
1.It is accepted that the Industrial Disputes Act and any other enactments which may confer powers onLabourTribunalsare
not within- the scope of any item or matter in the Provincial Council Listand also that it is only the Reserved Listwhich
contains any item or matter which would cover those enactments and Labour Tribunals - "Justice in so farasitrelatesto
the judiciary and the courts structure (including] ... jurisdictionandpowersofallcourts...".Accordingly,those
enactments would not fall within "any law ... in respect of any matter set out in theProvincialCouncilList",andHigh
Courts would not have writ jurisdiction over Labour Tribunals.

However, learned Counsel for the Respondent contends that the final clause of Article 154P (4) does notqualify"anylaw",
but only sub-paragraph (ii). The semicolon appearing after "any law" is an obvious error, because the preceding word"under"
must govern both sub-paragraphs (i) and (ii), if sub-paragraph (ii) is to make any sense. Learned Counsel says itshouldbe
a full stop, but even then sub-paragraph (ii) would be meaningless. Accordingly, that semicolon must be ignored, oracomma
substituted. In that event the final clause qualifies both sub-paragraphs which then makeperfectsense:ifalawora
statute is covered by a matter in the (exclusive) ProvincialCouncilList,butnototherwise,theexerciseofpowers
thereunder are subject to the writ jurisdiction of the High Court. Despite this, learnedCounselinvitesustointerpret
this provision "liberally", and to hold that the final clause qualified only "any statutes".Headvancedtworeasonsfor
doing so. He referred to the well-known principlesofinterpretationjustifyingmodificationoflanguageincasesof
ambiguity, absurdity, injustice, patent error, and the like andhealsourgedthattheintentionoftheThirteenth
Amendment was to "devolve" judicial power to the Provinces, which he said had been recognised in theDeterminationofthis
Court In re the Thirteenth Amendment (2). On that basis he urged that this Court should adopt a broadinterpretationsoas
to allow writ jurisdiction to the High Courts in respect of powers exercised under any law whatsoever.
Apart from the error in punctuation, the meaning of Article154P(4)isperfectlyclear andthereisnoambiguity,
absurdity, or injustice justifying modification of language.

As to the intention of Parliament in adopting the Thirteenth Amendment, this Court cannot attribute an intention exceptthat
which appears from the words usedby Parliament. I find nothing suggesting a general intention ofdevolvingpowertothe
Provincesinsofar as the three Lists are concerned, only what was specifically mentioned wasdevolved,and"allsubjects
and functions not specified in List I or List II" were reserved - thus contradicting any such general intention. Asforthe
Determination of this Court regarding the Thirteenth Amendment, the majority held that it did not effect anychangeinthe
structure of the Courts or the judicial power of the Peoplethat vesting additional jurisdiction intheHighCourtsonly
brought justice nearer home to the citizen, reducing delay and expenseand that the Provincial Council had nocontrolover
the judiciary functioning in the Province (per Sharvananda, C.J. at R. 323). Of thethreedissentingjudgments,onlythe
principal dissent referred to the judiciary.ThatjudgmentdealtexhaustivelywiththeprovisionsoftheThirteenth
Amendment, and its background terrorism and the secessionist problem, the reasonable governmental efforts madetosolveit
politically without seeking a military solution, the various negotiations, etc. Although taking the narrowviewthatthere
was excessive devolution in respect of legislative and executive power, yet, significantly, it did not find in theBill,or
even in its legislative and executive history, any intention of devolution in regard tothejudiciary-anditwentno
further than observations that the conferment of concurrent writ jurisdiction on the High Court wasinterferencewith,and
devaluation of, the writ jurisdiction of the Court of Appeal (per Wanasundera, J., at p. 380). Noneofthefivejudgments
support-the Respondent's contention that there was in the Thirteenth Amendment an intention to devolve judicial power.There
was nothing more than a re-arrangement of the jurisdictions of the judiciary. To accede to Counsel's invitationtoadopta
liberal interpretation would be, in this instance, a clear trespass into the legislative domain.
The first question must therefore be answered in the negative.
2.By the Thirteenth Amendment, Parliament could have taken away (or diminished) even an entrenched jurisdiction of theCourt
of Appeal, because a constitutional provision can be amended by a later constitutional amendment. But Parliamentcannot,by
a constitutional amendment, give itself ablanketauthorisationtoaffectanentrenchedjurisdictionbymeansofa
subsequent ordinary law. For example, Parliament cannot confer an entrenched jurisdiction of this Court (e.g. underArticles
125 to 127) on High Courts, by an Act passed under and in terms of Article 154P (3). However, the jurisdiction oftheCourt
of Appeal under Article 138 is not an entrenched jurisdiction, because Article138providesthatitissubjecttothe
provisions. "of any law"henceitwasalwaysconstitutionallypermissibleforthatjurisdictiontobereducedor
transferred by ordinary law (of course, to a body entitled to exercise judicial power). That is the reasonwhyIheld(in
-Swastika Textile Industries Ltd. v. Dayaratne, (1) that section 3 of the High Court of theProvinces(SpecialProvisions)
Act, No. 19 of 1990, conferred concurrent, appellate and revisionary jurisdiction on theHighCourtsinrespectofLabour
Tribunals, and that thereafter section 31 D3 of the Industrial Disputes Act, as amended by Act No.32of1990,madethat
jurisdiction exclusive, thereby taking away the jurisdiction of the Court of Appeal in that respect). And it was theabsence
of such a provision that made Parliament unable to reduce or affect the jurisdiction of the CourtofAppealunderArticle
140: because "its jurisdictions under Articles 140 and 141 areentrenched butfortheprovisoinsertedbytheFirst
Amendment, its jurisdiction under Article 140 cannot be transferred even to theSupremeCourt"(Determinationinrethe
Agrarian Services (Amendment) Bill (3)). It had first to remove the entrenchment, thereby givingParliamentthepower,by
subsequent ordinary law, to transfer part of that jurisdiction to this Court. If a constitutional amendment was necessaryin
order to transfer part of an entrenched jurisdiction from the Court of Appeal toahigherCourt,itwouldbeanomalous
indeed if a transfer to an inferior court was possible without such an amendment.

Had the power conferred by Article 154P (3) (c) been enlarged bytheinclusioninsub-paragraph(c)ofwordssuchas
"notwithstanding anything to the contrary in Article 141 of the Constitution", the position might havebeendifferent.But
in the absence of any removal of the entrenchmentofthatArticle,IholdthatArticle154P(3)didnotauthorise
Parliament, by ordinary law, to confer the writ jurisdiction of the Court of Appeal under Article 140 (either exclusivelyor
concurrently) on the High Courts.

While this makes it unnecessary to consider the Respondent's submissions on the second question, I mustmentionthatthere
is no doubt whatever that Parliament did not even attempt to affect the writ jurisdiction of the Court of Appeal.Section3
of the High Court of the Provinces (Special Provisions) Act, No. 19 of 1990,conferredontheHighCourtappellateand
revisionary jurisdiction in respect of Labour Tribunalsthe phrase "appellate and revisionary jurisdiction"hasbeenused
in Article 154P (3) in contradistinction to the writ jurisdiction,andhencethesamephraseinsection3cannotbe
interpreted to include the writ jurisdiction. None of the other provisions relied on bytheRespondentpurporttoconfer
jurisdiction.

I therefore answer the second question in the negative.

The order of the High Court is set aside, and appeal is allowed, with costs in a sum of Rs. 2,000.

DHEERARATNE, J. - I agree.

WADUGODAPITIYA, J. - I agree

Order of High Court set aside.


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