UNIVERSITY OF JAFFNA, SRILANKA

FACULTY OF ARTS, DEPARTMENT OF LAW

INTERPRETATION OF STATUTES AND DOCUMENTS -ALISC 32025
YEAR III (2020/2021)
SEMESTER-2
TAKE HOME ESSAY
2020/L/036

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WORDS :- 1500( Excluding Footnotes & Bibliography )

 CONTENTS

1. INTRODUCTION

2. HE /SHE SHOULD BE COOPERATIVE INDEPENDENT ACTOR

 View of Constitutional provisions
 View of Political Context

3. RESULTS ORIENTED DECISION-MAKING PHASE

4. CONCLUSION

5. BIBILIOGRAPHY

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 Words are perhaps more important in law than in any other discipline” L.J.M.

Cooray (1975, p. 533)

INTRODUCTION

Judges most commonly use five methods of interpretation based on rules and theories to

apply laws, evaluate evidence, regulate court proceedings, ensure fairness and justice in legal

cases, and ascertain the legislature's intent : ordinary sense, legal context, building canons,

legislative history, and proof of how statute applied

In that sense the different possible roles of the judge are while seen in the interpretation –

faithful agent, cooperative independent actor, Actor of Taking into account technological and

social developments, Acting as a explorer to explore the "spirit of Act” and, where possible,

to read the words into or out of the Act.

In my sight, Role of Supreme Court of Srilanka judge should be cooperative independent

actor.

HE /SHE SHOULD BE COOPERATIVE INDEPENDENT ACTOR

In the constitutional and political context of Sri Lanka, The Supreme Court judge in Sri

Lanka plays a crucial role in upholding the rule of law, ensuring justice, and safeguarding

citizens' rights.

When a Supreme Court judge acts as an independent cooperative actor, scope of a text are

widens. There is a limit to anticipating the future by the framers of the constitution. Judges

have the duty to construe the meaning of the constitution to provide equality to all the

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society. Without using judicial creativity, it is impossible to do that. And allows widening of

the scope of constitution

 An independent cooperative actor in Sri Lankan constitutional provisions.

Constructing a constitution differs from constructing a statute, as it is supreme law of a

country and future's eye. Therefore, judges should always study and analyse sui generis

nature of it. However, SriLankan judiciary has not given sufficient importance to

constitutional guarantees of human rights, values, and principles.

In Sri Lanka, there is an assumption on the judges that only three rules of interpretation

(Literal, Golden, Mischief) should be applied when interpreting the Constitution. Sri Lankan

judiciary hasn't properly responded to the new approaches and trends of constitutional

interpretation. Therefore, originalist approach was used mostly.

Recent judges in Sri Lanka have expanded procedural rules for interpreting Fundamental

Rights provisions. 1Article 126 read with 2Article 15 of Constitution provides that

adjudication of FR vested exclusively with Supreme Court. Therefore, victim and/or

attorney-at-law could petition within 30 days of infringement or imminent infringement by

executive or administrative action.

Recent Case Law authorities have demonstrated that judges calculate time bar relevant to the

article by considering practical barriers in filing cases. 3Saman v Leeladasa , 4Namasiwayam

v Gunawardane

1
The Constitution Democratic Socialist Republic of Sri Lanka Article 126
2
The Constitution Democratic Socialist Republic of Sri Lanka Article 15
3
Saman v Leeladasa 1989 1 Sri LR 1
4
Namasiwayam v Gunawardane 1989 1 Sri LR 394

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Judges departed from Article 126 of the Constitution, Although allowing victims or

attorneys to file petitions, while also allowing descendants to file cases 5(Sriyani Silva v OIC

Payagala where the widower of the victim was allowed to file the FR petition)

Judges have also recognized possibility of filing FR cases by private organizations and

persons acting in public interest → Public Interest Litigation. ( 6Environmental Foundation

Limited v Urban Development Authority [Galle Face Green case])

Executive and administrative action has been interpreted to include corporations

(7Wijethunga v Insurance Corportation ). 8Welmurugu v AG gave coverage to actions

carried out under authority of state under executive and administrative action. Executive and

administrative action was given a very expansive interpretation is some case law authorities.

Judges act as independent cooperative actors in procedural rules, providing victims with

practical assistance. The scope of some Freedom of Expression (FR) jurisdiction has

expanded, including dissent 9Mohottige v Gunathilake , peaceful protest 10Amarathunge v

Srimal and others, voting rights 11Mediwaka v Dissanayake , and media rights 12Fernando v

SLBC . This trend is positive and reflects expansion of enumerated FR in the 1978

constitution.

The Right to Equality before law ( 13Article 12), a key principle in Supreme Court cases,

encompasses due process requirements and core administrative law principles like natural
14
justice, procedural and substantive legitimate expectation Samarakoon v UGC and

5
Sriyani Silva v OIC Payagala
6
Environmental Foundation Limited v Urban Development Authority
7
Wijethunga v Insurance Corportation 1982 1 Sri LR 1
8
Welmurugu v AG 1981 1 Sri LR 406
9
Mohottige v Gunathilake 1992 2 Sri LR 246
10
Amarathunge v Srimal and others
11
Mediwaka v Dissanayake 2001 1 Sri LR 177
12
Fernando v SLBC 1996 1 Sri LR 157
13
The Constitution Democratic Socialist Republic of Sri Lanka Article 12
14
Samarakoon v UGC 2005 1 Sri LR 119

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15
Dayaratne v Minister of Health and Indigenous Medicine Recent cases, like Mundy v

Central Environmental Authority, recognized the rule of law in administrative discretion

The judiciary has broadly interpreted rights, including right to equality, in cases like
16
Kaviratne v Commissioner General of Examination and environment rights interpreted

through Article 12 as well in 17Bulankulama Case, 18Ashik v OIC Weligama Police Station.

Judicial activism and creativity are crucial for developing fundamental rights in the

constitution, requiring judges to adopt a more liberal and creative approach.

 An independent cooperative actor in Sri Lankan Political Context

In Sri Lanka's political context, a Supreme Court judge plays a crucial role in upholding rule

of law, separation of power, check and balances, ensuring justice, and protecting citizens'

rights.

The Supreme Court in Sri Lanka has upheld right to freedom of expression and press,

demonstrating judiciary's role in safeguarding fundamental freedoms and accountability. The

case of 19Nallaratnam Singarasa v. Attorney General emphasized rule of law and judicial

independence.

The SC of Sri Lanka has played a crucial role in constitutional disputes, as seen in 20Sirisena

v. The Speaker of Parliament and 21Kanag-Iswaran v. Minister of Home Affairs. These

15
Dayaratne v Minister of Health and Indigenous Medicine 1999 1 Sri LR 393
16
Kaviratne v Commissioner General of Examination
17
Bulankulama v. Min. of Industrial Development (Eppawala case), S.C. Application No. 884/99 (F/R)
18
Ashik v OIC Weligama Police Station.

19
Nallaratnam Singarasa v. Attorney General
20
Sirisena v. The Speaker of Parliament (2018)
21
Kanag-Iswaran v. Minister of Home Affairs (1974).

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cases emphasized the judiciary's role in protecting minority rights, promoting equality and

non-discrimination.

22
Ratnayake v. Abeysinghe and 23Sarath Fonseka v. Ministry of Defense were Supreme

Court cases that highlighted the judiciary's role in safeguarding individuals' liberty and

upholding fundamental rights, such as fair trial and freedom from arbitrary detention, in cases

involving human rights violations.

The Supreme Court's 24Peiris v. Jayaratne and Centre for 25Policy Alternatives v. Secretary,

Ministry of Defence cases emphasized the judiciary's independence and role in upholding

international human rights standards, while also addressing legality of government's

impeachment of Chief Justice Shirani Bandaranayake.

26
Supreme Court in Sri Lanka declared death penalty unconstitutional in Thilakaratne v.

Attorney General , highlighting the judiciary's role in protecting human rights and promoting

legal reforms.

Supreme Court's role in Sri Lanka's constitutional and political context is dynamic, guarding

the rule of law, protecting fundamental rights, and ensuring accountability, contributing to

democracy and justice.

27
Bandaranayake J. argued that strict literal interpretations of constitutional provisions

(faithful agent)are insufficient for justice.And flexible approach to constitutional provisions

is necessary to protect aggrieved party. Sriyani silva case highlights the importance of

context in judicial interpretation, as it allows for specific rules to be applied to suit affected

22
Ratnayake v. Abeysinghe (1984)
23
Sarath Fonseka v. Ministry of Defense (2010)
24
Peiris v. Jayaratne (2015)
25
Policy Alternatives v. Secretary Ministry of Defence (2008)
26
Thilakaratne v. Attorney General (2018)
27
S Bulathwela,"One Up for Statutory Interpretation and Two Down for Separation of Powers", 2015, pg no
234

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party's needs.Public interest litigation often involves fundamental rights violations, benefiting

the public by broadening the scope of Article 126 and 28Article 17 through interpretation.

RESULTS ORIENTED DECISION-MAKING PHASE

When SC Judges were faithful agents of the Legislature , Article 29 of the Soulbury

Constitution prohibited parliament from enacting discriminatory legislation based on race,

religion, or caste. However, the judiciary failed to recognize its specific purpose.
29
Kodeswaran v AG - 30Sundaralingam v AG ,31Mudannayake v Sivannasundaram

The 1972 Constitution allowed pre-enactment judicial review, but post-enactment review was

not. Unconstitutional provisions, like 32Section 403 of the Code of Criminal Procedure Act,

went unchallenged. However, the Poison, Opium and Dangerous Drugs Bill was challenged.

Under the 1972 Constitution, courts struggled to adopt constitutional principles based on

supremacy, 1978 resulting in cases with narrow interpretations, This has led to a failure in Sri

Lankan judiciary to embrace constitutional interpretation principles.

Judges in Sri Lanka can make structural changes in society through substantive interpretation,

enhancing the voice and participation of vulnerable societies.

In 2010, the Constitutionality of the Local Authorities Bill and Local Authority Election Bill

was challenged, introducing proposed amendment 25% women and youth quota, arguing it

was unconstitutional. Lack of women’s’ representation which was not considered by judges

28
The Constitution Democratic Socialist Republic of Sri Lanka Article17
29
Kodeswaran v AG 1969 72 NLR 337
30
Sundaralingam v AG 1972 75 NLR 318
31
Mudannayake v Sivannasundaram 1951 53 NLR 2

32
Code of Criminal Procedure Act Section 403

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 33
The judicial response to directive principles of state policy (DPSP) in Article 27 of the
34
Constitution is that they are not enforceable in courts. However, in Seneviratne v UGC,

judges recognize the values and aspirations of DPSP. Wanasundara J emphasized that when

interpreting a legal document, it is essential to read it as a whole, considering all provisions of

the constitution

The Sri Lankan judges has shown a gradual shift towards a more independent actor of the

constitution, indicating a positive trend.

The Sri Lankan Constitution does not imply a right to environment if judge as acting a

faithful agent of legislature, . but if judge acting an independent actor, several provisions we

can identify in the 1978 Constitution, which imply the environmental preservation and right

to environment such as 35Articles 27 (14), 3628 (f), and 3737

If SC judges be a faithful agent of legislature, often accept the constitution as a fixed

document, limiting their creative interpretation and understanding of implied and unwritten

rights. This results in unfair judgments, as no constitution can anticipate future possibilities.

To address this, judges need creative discretion and consider the constitution as a changing

document with an eye to the future, as it does not explicitly provide all human rights.

CONCLUSION

Judges' interpretation of laws varies across jurisdictions, with some adhering to acting

faithful agent of legislature and others focusing on achieving justice through independent

cooperative actor. While faithful agent of legislature holds the doctrine of separation of
33
The constitution Democratic Socialist Republic of Srilanka Article27
34
Seneviratne v UGC,
35
The constitution Democratic Socialist Republic of Srilanka Article 27(14)

36
The constitution Democratic Socialist Republic of Srilanka Article28(f)
37
The constitution Democratic Socialist Republic of Srilanka Article37

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powers, being more technical can lead to absurd results. Judge must decide whether to follow

the law and avoid justice or meet public needs. Justice is distinct from person to person, and

context of case is crucial. The value of statutory interpretation is not just about ensuring

political constitutional doctrine, but also providing justice to those in need.

BIBLIOGRAPHY

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 Cases

 Saman v Leeladasa 1989 1 Sri LR 1

 Namasiwayam v Gunawardane 1989 1 Sri LR 394

 Sriyani Silva v OIC Payagala

 Environmental Foundation Limited v Urban Development Authority

 Wijethunga v Insurance Corportation 1982 1 Sri LR 1

 Welmurugu v AG 1981 1 Sri LR 406

 Mohottige v Gunathilake 1992 2 Sri LR 246

 Amarathunge v Srimal and others

 Mediwaka v Dissanayake 2001 1 Sri LR 177

 Fernando v SLBC 1996 1 Sri LR 157

 Samarakoon v UGC 2005 1 Sri LR 119

 Dayaratne v Minister of Health and Indigenous Medicine 1999 1 Sri LR 393

 Kaviratne v Commissioner General of Examination

 Bulankulama v. Min. of Industrial Development (Eppawala case), S.C. Application

No. 884/99 (F/R)

 Ashik v OIC Weligama Police Station.

 Nallaratnam Singarasa v. Attorney General

 Sirisena v. The Speaker of Parliament (2018)

 Kanag-Iswaran v. Minister of Home Affairs (1974).

 Ratnayake v. Abeysinghe (1984)

 Sarath Fonseka v. Ministry of Defense (2010)

 Peiris v. Jayaratne (2015)

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 Policy Alternatives v. Secretary Ministry of Defence (2008)

 Thilakaratne v. Attorney General (2018)

 Kodeswaran v AG 1969 72 NLR 337

 Sundaralingam v AG 1972 75 NLR 318

 Mudannayake v Sivannasundaram 1951 53 NLR 2

 Seneviratne v UGC.

Legislation

 The Constitution Democratic Socialist Republic of Sri Lanka Article 126,15,12 ,17,27

,27(14) , 28(f) , 37

 Code of Criminal Procedure Act Section 403

Articles

 S Bulathwela,"One Up for Statutory Interpretation and Two Down for Separation of

Powers", 2015, pg no 234

 TB Abeysekara, "The Role of a Judge - What It Is and what It Ought to Be: The

Independence of Judiciary and Judicial Activism Clothed in Judicial Review in Sri

Lanka", November 2015, First pge No 162

 Sandani Yapa Abeywardena,"Reading Supreme Courts from afar: Topic modelling

judgements of the Supreme Courts of Sri Lanka and the United Kingdom" , Vol.4,

No.1, 2023

 K.A.A.N Thilakarathna T R Galappaththige," Politicized judges in interpreting the

Constitution: The Sri Lankan Experience", accessed 25.May.2024

 Ms. Ajra Azhar LL.B (Hons), Attorney-at-Law ,"Impact of Natural Law on the

Jurisprudence of the Sri Lankan Supreme Court", accessed 24.May.2024

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 Muskan Sharma and Nishka Bhrat Asarpota, "Role of Judges in the Art of

Interpretation of Statutes" ,Volume 4 | Issue 4 2021, page 826-839

 Rupsinghe R.A.D.S.T and Udayajeeva T.J, " The modern approach used by inthe

interpretation of the right to life under current constitutional framework of Sri

Lanka" , 2021.

Websites

 Daily News, "Advancing Fundamental Rights in SL: the cherished role of the

Supreme Court https://archives1.dailynews.lk/2019/12/03/features/204540/advancing-

fundamental-rights-sl-cherished-role-supreme-court accessed 23.May.2024

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