IN THE COURT OF APPEAL OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA In the matter of an application under Article 140 of the Constitution for mandates in the nature of Writs of Certiorari prohibition and mandamus Case No. CA Writ 0035- 2023

1. Dr. Nayake Bandaralage Dileepa Namal Bandara Balalle, President – High Court Judges Association High Court Judge, High Court Judge’s Chambers, Colombo 12.

2. Wagoda Pathirage Sujeewa Nishshanka, Secretary - High Court Judges Association High Court Judge, High Court Judge’s Chambers, Colombo 12.

Petitioners Vs.

1. Chief Accountant, Ministry of Justice, No. 19, Sangaraja Mawatha, Colombo 10. 2. Secretary, Ministry of Justice, No. 19, Sangaraja Mawatha, Colombo 10.

3. Commissioner General of Inland Revenue, Sri Chittampalam A, Gardiner Mawatha, Colombo 2. Respondent Before: N. Bandula Karunarathna J. (P/CA)

&

M. Ahsan A. Marikar J.

Counsel: Dr. Romesh de Silva, PC with Sugath Caldera AAL, and Niran Anketell for the Petitioner.

N. Wigneswaran, DSG, with M. Jayasinghe, DSG and Shiloma David, SC for the Respondent Written Submissions: By the Petitioners – Not filed By the Respondent – Not filed Supported on : 09.02.2023 Decided on : 16.03.2023.

N. Bandula Karunarathna J. P/CA Motion dated 02.02.2023 filed by the petitioners, was supported by the learned President’s Counsel Dr. Romesh de Silva under article 146 of the constitution.

The petitioners are the duly elected President and Secretary of the High Court Judges' Association, an association comprising of, and representing the interests of High Court Judges in the country. The Executive Committee of the High Court Judges' Association passed a resolution resolving to institute the instant application in this court. The petitioners states that the Executive Committee did so reluctantly but resolutely on the basis that no other alternative was available to vindicate the rights of Judges of the High Court and the independence of the judiciary.

The petitioner states that the petitioners are not liable to Income Tax from the income received as/qua Judicial OfÏcers. The petitioners plead that the petitioners do not receive any money from employment in that they are not employed within the meaning of the Inland Revenue Act. The respondents are wrongly and/or unlawfully and/or in violation of the law taking up the position that the petitioners are liable to pay Income Tax. The petitioners states that, at present, High Court Judges' salaries are wrongfully and unlawfully treated by the respondents as income from employment within the meaning of the law. High Court Judges hold esteemed Judicial OfÏce, and are not in any way or manner employed by anybody or person.

The petitioners state that the characteristics of employment such as, control by an employer are singularly absent in the case of Judges. It is trite law that Judicial OfÏcers are not Public OfÏcers. In the constitutional scheme, judicial ofÏcers exercise the judicial power of the people. Thus, and otherwise, the petitioners state that the income of judicial ofÏcers, qua judicial ofÏcer is not an income from employment. In the circumstances, the same does not constitute taxable income on which income tax could lawfully be charged.

The petitioners further states that the respondents are purporting to act in a wholly unlawful manner in deducting and/or contriving to deduct and/or retain the deduction of APIT from judicial ofÏcers inclusive of High Court Judges. In the circumstances, the 1st and 2nd respondents are purporting to act as employers of all the High Court wages in the country. The petitioners state that the 1^st and 2^nd respondents are not the employer of High Court Judges.

The petitioners state that it is entirely offensive to the constitution and to the independence of the judiciary for the 1^st and 2^nd respondents to purport to act as employers of High Court Judges. The 1st and 2nd respondents are not permitted in law to deduct APIT from the High Court Judges and remit the same to the 3^rd res