News
Recurring legal problem: SC raises concern over discrepancies in Sinhala and English texts
View(s):The Supreme Court (SC) has once again raised concern over a “recurring problem”—discrepancies between the Sinhala and English texts of bills during enactment or drafting legislation.
A three-judge SC bench comprising Chief Justice Murdu Fernando, Justice Janak de Silva and Justice Achala Wengappuli highlighted the problem in their ruling on the case involving an employee who had been sacked by his employer.
The employee, E.A.K. Upendra Premachandra, had appealed to the High Court against a decision by the Labour Tribunal. The tribunal, after considering an application by the employee, had found the termination of his employment by Asiabike Industrial Limited to be unjust and unlawful. However, instead of reinstatement, it had awarded him compensation of Rs. 318,000, which amounted to six months’ basic salary.
The employee had appealed to the High Court of the Western Province. At the hearing of the appeal, the company had raised a preliminary objection that the appeal was out of time. The High Court Judge, however, had overruled the preliminary objection. The company (petitioner) had then appealed to the Supreme Court, which considered the question of whether the High Court Judge had erred in law in the computation of the time applicable for the filing of appeals from the awards made by the Labour Tribunal to the High Court.
With Chief Justice Fernando and Justice Wengappuli agreeing, Justice de Silva observed in the judgement that there is a clear discrepancy between the Sinhala and English texts of the Industrial Disputes (Hearing and Determination of Proceedings) (Special Provisions) Act No. 13 of 2003. According to the English text, Sundays and public holidays must be excluded in the computation of the 30-day period given to appeal, whereas the Sinhala text requires the exclusion of Sundays and Poya Days.
If time is computed based upon the Sinhala text of the Act, the petition of appeal was filed on the 31st day calculated by including the day on which the order was pronounced but excluding Sundays and Poya days. Then the petition of appeal is out of time by one day. However, during this period there were two public holidays, namely December 25, 2020 (Christmas) and January 14, 2021 (Thai Pongal). Should the English text of the Act prevail, the petition of appeal is within time.
The High Court judge had relied on the English text and concluded that the Sinhala text refers to Poya Days rather than Public Holidays due to an error which ought to be corrected to read as Public Holidays. He therefore held that the holidays for Christmas and Thai Pongal should be excluded in computing the time.
“The legislative history provides a clear indication of the intention of the legislature to vest in itself the power to determine which text shall prevail in the event of any inconsistency. There is no opportunity for any court to embark upon a voyage of interpretative discovery given the clear and unambiguous words used by the legislature to set forth its intention acting in terms of the powers vested in it by Article 23(1),” the SC has noted.
“Unfortunately, the learned High Court judge did exactly that and thereby sought to clothe himself with legislative power in an attempt to correct what he perceived to be a mistake in the Sinhala text. Should there be any mistake in the Sinhala text, it is up to Parliament to remedy it. That legislative function cannot be usurped by any court of law under the charade of legislative interpretation.”
In summary, the Sinhala text of the Act prevails in the event of any inconsistency with either the Tamil or English text. Therefore, only Sundays and Poya Days should be excluded in the computation of time, the SC has stressed, ruling that the High Court judge had erred in excluding Christmas and Thai Pongal. Accordingly, the SC dismissed the petition filed in the High Court after ruling it had been filed out of time.
Mohamed Adamaly, P.C. with Dakshina Wickramarachchi and Shannel Gunatileka appeared for the petitioner. Srinath Perera appeared for the respondent.
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