Interpretation of

statutes and
documents
ASSIGNMENT I

2012/L/6488
Faculty of Law
University of Colombo
University of Colombo, Sri Lanka

Faculty of Law
Bachelor of Laws Examination, Year III - 2015
Interpretation of Statutes and Documents
First Assignment
Question
Select the following two separate opinions in the Supreme Court Determination of
In re the Thirteenth Amendment to the Constitution and the Provincial Councils
Bill (1987) 2 Sri L. R. 312, and analyse them in the light of relevant theories of
interpretation and related jurisprudential schools of thought:
1. The Opinion delivered by Chief Justice Sharvananda
2. The Opinion delivered by Justice Wanasundara
Instructions
This is an individual take-home assignment and the write up should not
exceed 2000 words.
The Registration Number of the candidate should be written on the cover
page of the assignment.
An accepted form of citation must be followed. The correct citation method
will be taken into consideration in awarding marks. The Oxford Standard for
the Citation of Legal Authorities (OSCOLA) is recommended.
<http://www.law.ox.ac.uk/published/OSCOLA_4th_edn.pdf>
Plagiarism in any form is an examination offence.
The assignment should, preferably, be a bound computer printout which is
double spaced and if in English, in font size 12 Times New Roman/DL
Paras/ Kalaham.
The assignment will be marked out of 15 marks.
The Assignment should be submitted to the Examination Unit of the Faculty
of Law on 13 May 2015, between 1.00 p.m. 3.00 p.m.

INTRODUCTION
2

A transformation in the constitutional history was evidenced when the Supreme Court of Sri
Lanka pronounced its majority judgment that there is no necessity for a referendum to pass the
thirteenth amendment to the constitution1. It was a first step towards some degree of
decentralisation of powers in a highly centralized system of governance.
The petitioners contended that the thirteenth amendment and the provincial councils bill sought
to violate the unitary nature of the country, the sovereignty of the people and the foremost place
to Buddhism and protection of Buddha Sasana. The highlighted pronouncements to the above
contentions were given by Sharvananda CJ, and Wanasundara J. Sharvananda CJ concluded that
the establishment and functioning of the Provincial Councils were well within the realm of the
Unitary Nature of the country, however Wanasundara J opined that the country needed a
referendum since the provisions encroach upon entrenched territorial provisions2.
The two separate verdicts epitomize the subjective nature of the issue at hand. The author, in this
essay, delves into the application of different theories of interpretation in Part I and relevant
jurisprudential schools of thoughts in Part II of the essay. The author thus attempts to prove the
subjectivity to which the Judges were caught up, in the delicate issue, that was in question in re
the thirteenth amendment.

PART I
Verdict of Sharvananda CJ:
Sharvananda CJ analysed the issues to be addressed with a prime effort to discharge the manifest
intention of the draftsmen of the thirteenth amendment. The verdict concluded that the Provincial
Councils were subsidiary law making bodies that were not sovereign and thereby did not
violate the unitary character of the country and the sovereignty of the people3.
1

In re the thirteenth amendment to the Constitution and the Provincial Councils Bill (1987) 2
SLR 312
2

Primarily Article 2 of the 1978 Constitution of Sri Lanka, article 3 and 4, and article 9 were
violated by virtue of the thirteenth amendment
3

Note 1 p 319

The Chief Justice opted for a conservative view to perceive the establishment of Provincial
Councils. The majority determination specifically stated that this setup of devolution does not do
any harm to the unitary nature because the Provincial Councils are so subordinate in nature that
they would not possibly threaten the sovereignty of the parliament. Although the term
devolution is used, the construction of the term in the judgment was narrow implying that it
rather is, delegation of central government powers without the relinquishment of supremacy4.
The unitary character, the governor and the sovereignty
The Court noted that the two essential qualities of a Unitary State were the supremacy of the
central Parliament and the absence of subsidiary sovereign bodies, which were ultimately
retained despite the establishment of Provincial Councils as they are subordinate to the
Parliament in authority. The legislature had the right to overrule the so called subordinate
bodies5. With respect to the executive powers vested in the Governor, Sharvananda CJ stated
that the Governor derived his authority from the President in the capacity of a Delegate of the
President. The judgment fully conceded itself to the notion of sovereignty of parliament.
The Chief Justice opted to perceive the issues of the case as separate elements rooting from the
notion of Parliamentary Sovereignty rather than looking at the picture from a holistic
perspective6. There was implied emphasis on the concept of Separation of Powers and the role of
the judiciary, confined to that of interpretation of statutes. The contention and the conclusion
are, to a greater extent, based on the literal theory of interpretation. The application of orthodox
literalism sought to identify the manifest intention of the draftsmen according to the words used,
in other words, what the law is7.
Re the argument made by the petitioners on the violation of article 4 read with article 3 on
sovereignty of the people being affected by the establishment of provincial councils, His
Lordship opted out of contextual interpretation citing that article 4 was deliberately dropped
from the list of entrenched provisions8 without delving in detail to assess the reason for such
deliberate omission of the article. There was a genuine effort to ascertain the manifest intention
4

Ibid p 327

Ibid p 323

A holistic perspective would reflect the purposive theory.

G E Devenish, The Interpretation of Statutes (Juta and Legal Academy Publishers) p 35
7
Orthodox literal theory as mentioned in Sussex Peerage case (1843-1845) 65 RR 11 at p 51
8

Note 5 at p 324

as opposed to the authentic intention 9 of the legislature. This further confirms that the Chief
Justice was inclined towards primitive literalism confined to the peripheries of ipsissima verba10.
Interestingly, towards the end of the judgment, the court emphasized on the need to adopt to the
changing circumstances as a healthy democracy11. References were made to the Directive
Principles of State Policy to justify the decentralization of governance, moving towards the value
coherent theory at a superficial level. However the overall judgment is highly oriented towards
literal approach.

Wanasundera J
The verdict by Wanasundera J formed the minority judgment, however it extensively dealt with
significant issues. The determination reflects a reasonable combination of teleological theory,
purposive theory and the free theory.
Teleological theory is focused more towards the spirit of the relevant law flowing from the
concept of equity of a statute12. Wanasundera J, in his judgment, was reflective towards the core
principles that make up the Constitution of Sri Lanka. His Lordships contention was that the
thirteenth amendment sought to alter the basic structure of the Constitution both expressly, and
impliedly13. The form of governance of the country was identified as a basic feature which
required a referendum in case of an alteration.
The judgment resorts to the purposive theory in that it drew instances from the India to examine
the basic features that make the foundation of the constitution. Sovereignty, unity and the
integrity of the country were, inter alia, mentioned. It was implied in the judgment that the focus
should be more on the entrenched principles in article 83 than to the collection of words in
construction of meaning, in the entrenched provisions. The author contends that such pragmatism

The subjective theory is based on the authentic intention of the legislature which is more
sound than primitive literalism. Note 6 at p 33
10

The very words of the speaker

11

Note 8 at p 326

12

Eyston v Studd (1574) 459

13

Note 1 at p 334

could be construed as a reflection towards the holistic picture and the purpose of the
Constitution.
Wanasundera J was of the view that despite the assurance in the thirteenth amendment, that the
central parliament being the supreme authority14, the real positioning was such that the Provincial
Councils were in par with the parliament in making legislations due to temporary alienation 15
of the parliament from the realms of provincial and concurrent list and by virtue of article 154G
(2) and (3)16. Appointment of governor was declared illegal as it was relinquishing the executive
power. The actual process of consultation required from article 154G (4) and (5) were
questioned skeptically on the ground that both the authorities were placed in parity. The
judgment was cynical of the subordinate position of the provincial councils in spite of the
blanket article 154G(10)17, implying that, inter alia, the presence of provisions pertaining to the
provincial and concurrent list would place the provincial councils at a higher level of authority.
This indicates that His Lordship placed his views far from literalism and was moving towards
judicial thinking.
The judicial theory acknowledges the creative role of the judges and the element of subjectivity
inherent in the process of interpretation of statutes 18. It is, in essence, an analytical exposition of
the adjudication process. Judges exercise their discretion in selecting the rules they consider
applicable to the statute19. It is considered a liberal approach giving life to judicial law making
and completely against literalism. Such approach is likely to be moulded by the upbringing,
history, education, social and political sense of the the judges concerned20.
The latter part of the judgment extensively deals with the non-legal background, against the
backdrop of which, the thirteenth amendment was drafted21. There is implicit reference to His
14

Article 154G (10) Nothing in this Article shall be read or construed as derogating from the
powers confined in Parliament by the Constitution to make laws in accordance with the
provisions of the Constitution (inclusive of this Chapter) with respect to any matter for the
whole of Sri Lanka or any part thereof."
15

Note 1 at p 352

16

Sharvananda CJ referred to the provisions as merely laying out procedures ,in form and
manner on how the parliament could overrides the Provincial Council Authority
17

Refer: Note 14

18

Note 6 at p 49

19

Ibid

20

Exposition of Lord Wilberforce on free theory. Ibid

21

Note 1 at p 368-371

Lordships insecurities with regard to the secession of the North from the country and how the
setup of Provincial Councils might favour the secession prejudicing, in particular, the minorities
of the North and East and the rest of the country. The author contends that this position taken by
Wanasundera J was highly subjective and personal, truly reflecting in essence, the very nature of
judicial theory and the discretion enjoyed.

PART II
Jurisprudential Schools of Thought and the 13th Amendment
The positivist school of thought hails from the question of what the law is. Positivism as
tabulated by Professor Hart states that Laws are commands from the sovereign, decisions can be
deduced logically from predetermined rules without recourse to social aims and that law as it is
has to be kept separate from what law ought to be22. Sharvananda CJs judgment that was
confined to the notion of parliamentary supremacy, resonated positivist thoughts. His Lordship in
effect, shrunk the concept of devolution so that it could comfortably fit into the 1978
Constitution of Sri Lanka with a fallacious notion of decentralisation of administration 23
whereas he could have extended the interpretation of the provisions to accommodate devolution
in a broader sense.
Be that as it may, this could be approached through the lens of American Realists who critique
such craving for certainty and guidance by constantly seeking resort in statutory provisions
without attempting to extend such provisions 24. Frank draws analogy from an insecure child who
puts his trust in the power of his father to provide him with a secure atmosphere 25 and called on
the people in the realm of judiciary to outgrow the fears. He invites to translate the words into
facts for which they stand and thus stand sincere 26. One might argue that such an encounter
would have been brave and thereby uphold the sanctity of the second tier government.
Re the judgment of Wanasundera J, he lived the standards of the Realists who endorsed paper
rules did not produce certainty 27. This gave leeway for the liberal minds to accommodate their
22

R W M Dias, Jurisprudence (5th edn) p 331

23

Article 27(4) of the Constitution

24

Note 22 at p 450

25

Frank, Law and the Modern Mind, p 50-51

26

Note 22- Statement of Justice Oliver Holmes

27

Ibid p 449

rulings under the Realist school of thought. Law, the decision of judges, was the product of
ascertainable factors of their personal lives28.
Justice Holmes, an American Realist is of the view that law should be viewed through the eyes of
a bad man29 implying that, law is only what courts do is subject to attack and suggest that morals
and ethics should be put on one side30. The author is of the view that His Lordship Wanasundera
J was in fact corroborating the statement of Holmes that he envisaged a little too far sighted
outcome or the worst possibility of the establishment of Provincial Councils facilitating the
secession of North and East.
On the other hand, the role of law as a reconciler of conflicting interests according to the
sociological school of law was least in line with Wanasundera Js notion of law and justice.
Roscoe Pound regards public interests as that exist independently of law and are pressing for
recognition and security31. This notion could very well relate to the reasoning behind the
thirteenth amendment since the issues were revolving around denied rights of the Tamil
community in the North. One could contend that this school of thought provides the best
justiciable decision in expounding and acknowledging the categories of interests pertaining to
issues specifically as the thirteenth amendment, in a modern democratic society.
The judgment of Wanasundera J, does not fall extensively under naturalist school of thought,
since the notion of natural rights, principles of justice and equality go in hand with natural law 32.
The verdict was one of nationalist interests than of acknowledging the right of having own
system of governance in second tier or other rights of the community.

CONCLUSION
In re the thirteenth amendment determination as a whole deals extensively with the issues
concerned. However even with the same theory of interpretation and same school of thought, two
judges could produce entirely different judgments essentially due to the subjectivity of the judges
entangled with their way of thinking. There is significant truth in Hutchesons argument that
28

Ibid

29

Holmes The Path of the Law in Collected Legal Papers at p 173

30

Note 22 at p 449

31

M D A Freeman, Lloyds Introduction to Jurisprudence (sixth edn) at p 526

32

S P Dwivedi, Jurisprudence and Legal Theory at p 126

judges first make up their mind about the outcome and only then turn to law books to look for
justification of their decision33.
The thirteenth amendment determination of Sharvananda CJ and Wanasundera J necessarily
reflects the thinking of an average countrymen who desires devolution but finds it not so feasible
with the framework of the current constitution and another group of people simmered in
nationalistic views and insecure thoughts about empowering minorities with such a system of
governance.
Thus the author believes that there is a need to revisit our line of thought with a balanced and
moderate approach. A comprehensive judgment of that nature, unlike the extremes that were
discussed above, would have served the purpose paving way for the prospects of the Provincial
Councils. What is ultimately needed is essentially an exercise in teleological evaluation within
the spirit of the law and the school of thought that would do justice in the required situation to
the society.

33

Vitalius Tumonis, Legal Realism and Judicial Decision Making (Jurisprudence 2012) at p
1370