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529
1966 Present :
Sansoni, C.J., and G. P. A. Silva, J.
M. S. KARIAPPER, Petitioner, and S. S. WIJESINHA (Clerk to the
House of Representatives) and another, Respondents
S. C. 8/1966-Application for a Mandate in the nature of a Writ of
Mandamus under Section 42 of the Courts Ordinance
Constitutional law- Bills to
amend or repeal any of the provisions of the Constitution by subsequent
inconsistent enactment-Procedure-Retrospective
imposition of disqualification on
a person who was already a Member of Parliament-Validity -Clerk to the House of
Representatives-His
legal position as servant or agent of the
Crown-Mandamus-Appropriation Act, No. 7 of 1965-Imposition of Civic Disabilities
(Special
Provisions) Act, No. 14 of 1965, ss, 5, 7, 10-Ceylon (Constitution)
Order in Council, 1946, ss 3,13 (3)(k), 24, 28(2), 29 (1) (2)
(3)(4).
A Commission of Inquiry was appointed in September 1959, under the
Commissions of Inquiry Act, to investigate and report whether,
between 1st
January 1943 and 11th September 1959, any Members of Parliament accepted bribes
as contemplated by the terms of reference.
The Commissioners reported that the
allegations of bribery had been proved against six persons, one of whom was the
petitioner
in the present application. In consequence of the findings of the
Commission, the Imposition of Civic Disabilities (Special Provisions)
Act No. 14
of 1965 was passed on 16th November 1965. It imposes various civic disabilities
on the six persons who were found guilty
by the Commission. The six persons are
mentioned in the Schedule to the Act and it is to them and them alone that the
Act applies.
One of the disabilities which the Act imposes is that if any of the
six persons was a Member of Parliament on the day immediately
prior to 16th
November 1965, his seat in that capacity is deemed to have been vacant on that
date, and he is disqualified for seven
years from that date for sitting or
voting in Parliament-sections 5 and 7.
The petitioner, who was duly elected a member of the House of Representatives at
the General Election held in March 1965, made the
present application for a writ
of mandamus against the Clerk and the Assistant Clerk to the House, ordering
them to recognise him
as a Member of Parliament and to pay him his remuneration
and allowances since the end of October 1965. He challenged the legality
of the
Imposition of Civic Disabilities (Special Provisions) Act on the ground that it
offends against the Ceylon (Constitution)
Order in Council, 1946.
Held, (i) that, in view of the provisions of the Appropriation Act No. 7
of 1965 and the position of the Clerk to the House of Representatives
as a
servant of the Crown by virtue of section 28 (2), read with section 3, of the
Constitution, a Member of Parliament is not
entitled to ask for a writ of
mandamus to compel the Clerk to pay him his remuneration and allowances.
(ii) that sections 5 and 7 of the impugned Imposition of Civic Disabilities
(Special Provisions) Act amended the Constitution by
adding another
disqualification to the disqualifications provided in section 13 of the
Constitution, and by rendering the seat
of a Member of Parliament vacant on a
ground not already contained in section 24 (1) of the Constitution. There could
be no question
that the Act was treated by the Legislature as coming within
section 29 (4) of the Constitution which deals with Bills for the amendment
or
repeal of the provisions of the Constitution. There was endorsed on the Bill,
when it was presented for the Royal assent, the
necessary certificate of the
Speaker. To make the matter clear, section 10 of the Act provides that the Act
must
530
be deemed to be as valid and effectual as though its provisions were an Act for
the amendment of the Constitution. In the circumstances,
it cannot be contended
that the Act was an unconstitutional amendment of the Constitution.
(iii) that the ex post facto character of the impugned Act could not affect its
validity.
(iv) that it was not necessary that, before the impugned Act was passed, the
Constitution should first have been amended by a separate
Act empowering the
Legislature to exercise judicial power and to pass Bills of Attainder. The
requirement of such a preliminary
Act is a negation of the principle of repeal
or amendment by subsequent inconsistent enactment.
APPLICATION
for a writ of mandamus.
H. W. Jayewardene, Q.C., with M. T. M. Sivardeen, D. S. Wijewardene and Mark
Fernando, for the Petitioner.
V. Tennekoon, Q.C., Solicitor-General, with V. T. Thamotheram, Deputy
Solicitor-General, and H. L. de Silva, Crown Counsel, for Respondent.
Cur. adv. vult.
April 30, 1966. SANSONI, C.J.-
The petitioner, Mr. Mohamed Samsudeen Kariapper, was duly elected a member of
the House of Representatives for the Kalmunai Electoral
District at the General
Election held in March 1965. He has applied for a writ of Mandamus against the
Clerk and the Assistant
Clerk to the House, ordering them to recognise him as
the Member of Parliament for Kalmunai, and to pay him his remuneration and
allowances as such Member which have not been paid since the end of October
1965.
The discontinuance of such payment dates from the passing of the Imposition of
Civic Disabilities (Special Provisions) Act, No.
14 of 1965 which received the
Royal assent on 16th November, 1965. The legality of this Act (which I shall
refer to as the impugned
Act) has been challenged by the petitioner on the
ground that it offends against the Ceylon (Constitution) Order in Council, 1946.
It is necessary, in view of this attack on the Act, to consider how it came to
be enacted. On 11th September 1959, a Commission
of Inquiry consisting of Messrs
W. Thalgodapitiya, T. W. Roberts and S. J. C. Schokman was appointed under the
Commissions of Inquiry
Act, Cap. 393 by the Governor-General to investigate and
report on
(a) whether during the period commencing on January 1, 1943, and ending 11th
September 1959, any gratification had been offered,
promised, given or paid
directly or indirectly to any person who then was or had been a member of the
Senate, or the House
531
of Representatives, or of the State Council, in order to influence his judgment
or conduct in respect of any matter with which he
in that capacity was concerned
whether as of right or otherwise ;
(b) whether during that period any such gratification had been solicited or
received, directly or indirectly, by any such person
as a reward for any service
rendered by him in that capacity whether as of right or otherwise.
It issued an interim report by which it found Messrs Henry Abeywickrema, D. B.
Monnekulama and R. E. Jayatilleke guilty of having
received gratifications as
contemplated by the terms of reference. By its final report it found Messrs C.
A. S. Marikkar, M. P.
de Zoysa and the petitioner also guilty. These reports
were tabled in the House of Representatives on December 16,1960, and were
ordered to be printed. They have been published as Parliamentary Series No. 1 of
the Fifth Parliament.
The Commissioners pointed out in their interim report that the standard of proof
required by them was proof beyond reasonable doubt.
They also pointed out in
that report that each term of reference was much wider in scope than S. 14 of
the Bribery Act No. 11 of
1954, in that it '' categorically and universally
covers any act done by any Member of Parliament in his capacity as a Member of
Parliament whether he has a right or not". They said in their final report: "
The appointment of the Commission was due
to serious allegations made in
Parliament and the local press of wide-spread corruption by members of the
Government in power,
specially since the grant of independence to Ceylon. A
Commission with similar terms of reference was issued to Mr. L. M. D. de
Silva
(now Right Honourable L. M. D. de Silva, P.C.) in 1941 which covered the period
up to the end of 1942. The period under the
purview of this Commission starts
from 1943.............................."
With regard to their procedure, they stated : "All investigations were carried
out under the direction of the Commission. We
received clues either written or
oral. Then the Investigation Officers attached to the Commission were directed
to investigate
such clues. Those officers brought the results of their
investigations to the Crown Counsel attached to the Commission and any further
evidence, if necessary, was obtained on his instructions. The Crown Counsel
reported to the Chairman whether there was a prima
facie case, and if the
Commission agreed, the person against whom the allegation had been made was
summoned before the Commission,
informed of the allegations against him and
given an opportunity to make any statement he wished to make in explanation or
in exculpation.
Thereafter if the explanation seemed unsatisfactory, the matter
was fixed for inquiry. By adopting this method the Commission sought
to avoid
the risk of being suspected of prejudice or pre-judgment". They also said this :
"We decided at the outset that
all hearings at inquiries should be in public. We
did so because we wished not merely that justice should be done but should
532
plainly and manifestly be seen to be done. The proceedings of the inquiries were
open to the public and, we believed, were fully
published in the newspapers in
all three languages."
The preamble to the impugned Act recites the appointment of this Commission, the
findings that the allegations of bribery had been
proved against certain
persons, and that it has become necessary to impose civic disabilities on the
said persons consequent on
the findings of the said Commission. The long title
of the Act recites that it is an Act to impose civic disabilities on certain
persons against whom allegations of bribery were held by a Commission of Inquiry
to have been proved, and to make provision for
matters connected therewith or
incidental thereto.
The six persons who were found guilty by the Commission are mentioned in the
Schedule to the Act and it is to them and them alone
that the Act applies. The
disabilities imposed on them are :-
(1) Disqualification for registration in registers of electors-section 2.
(2) Disqualification from voting at a parliamentary or local election- section
3.
(3) Disqualification from being a candidate at a parliamentary or local
election-section 4.
(4) Disqualification from being elected or appointed as a Senator or a Member of
the House of Representatives or for sitting or
voting in the Senate or in the
House of Representatives- section 5.
(5) Disqualification from being a member of any local authority- section 6.
(6) If any of them was a Senator or a Member of the House of Representatives or
any local authority on the day immediately prior
to November 16, 1965, his seat
in that capacity is deemed to have been vacant on that date-section 7.
(7) Disqualification from employment as a public servant, or from being a member
of any scheduled institution as defined in the
Bribery Act-section 8.
(8) If any of them was a public servant or a member of a scheduled institution
on the day immediately prior to November 16, 1965,
he is deemed to have vacated
his office in that capacity- section 9.
Section 10 reads :-
10. (1) Where any provisions of this Act are supplementary to, or inconsistent
or in conflict with, any provisions of the Ceylon
(Constitution) Order in
Council, 1946, the said provisions of this Act shall be deemed, for all purposes
and in all respects, to
be as valid and effectual as though the said provisions
of this Act were in an Act for the amendment of that Order in
533
Council enacted by Parliament after compliance with the requirement imposed by
the proviso of sub-section (4) of section 29 of that
Order in Council.
(2) Where any provisions of this Act are supplementary to, or inconsistent or in
conflict with, any provisions of any appropriate
law, other than the Order in
Council referred to in sub-section (1), the said provisions of this Act shall be
deemed, for all purposes
and in all respects, to be as valid and effectual as
though the said provisions of this Act were in an Act for the amendment of
such
appropriate law enacted by Parliament.
(3) The provisions of any appropriate law shall have force and effect subject to
the provisions of this Act, and accordingly shall
be read and construed subject
to such modifications or additions as may be necessary to give the provisions of
such appropriate
law the force and effect aforesaid.
(4) In the event of any conflict or inconsistency between the provisions of this
Act and the provisions of any appropriate law,
the provisions of this Act shall
be read and construed subject to all such modifications or additions as may be
necessary to resolve
such conflict or inconsistency or, in the event of it not
being possible so to do, shall prevail over the provisions of such appropriate
law.
There can be no question that the Act was treated by the Legislature as coming
within section 29 (4) of the Constitution which deals
with Bills for the
amendment or repeal of the provisions of the Constitution. There was endorsed on
the Bill, when it was presented
for the Royal assent, the necessary certificate
of the Speaker that the number of votes cast in favour of it in the House of
Representatives
amounted to no less than two-thirds of the whole number of the
Members of the House (including those not present). A copy of Hansard
dated 21st
October 1965 is produced along with the petition for Mandamus. It shows that the
Second Reading was passed by 142 votes
to 1, and the Third Reading 130 votes to
none.
The first objection taken by the Solicitor-General to the grant of the writ was
based on two grounds-(1) that there is no legal
duty on the Clerk of the House
to pay the petitioner his remuneration and allowances, and (2) that the Clerk,
when he pays Members
of Parliament their remuneration and allowances, acts as a
servant or agent of the Crown and Mandamus does not lie against a servant
or
agent of the Crown to compel him to perform a duty which he owes to the Crown.
As this objection can be decided apart from any
constitutional question that
arises, I shall deal with it first, assuming for this purpose that the
petitioner is still a Member
of Parliament.
The question is whether such a Member can ask for a writ of Mandamus from this
Court to compel the Clerk of the House to pay him
his remuneration and
allowances. Now these amounts would be paid out of money
534
provided by the Appropriation Act No. 7 of 1965. Section 2 of the Act authorises
the sums appearing in the first schedule to be expended
as specified in that
schedule. Under Head VI, Vote No. 2, a sum of money has been specified as
payable on account of "administration
charges- recurrent expenditure" of the
House of Representatives. But the Act does not either expressly or impliedly
impose
a legal duty which the Clerk of the House owes to the petitioner. The
matter is made clear in The Queen v. Lords Commissioners of
the Treasury[1 (1872) 7 Q. B. D. 387.]. The
argument of Jessel, S. G., that the effect of the Appropriation Act is not to
give
any third person a right to the money, was accepted by Blackburn, J. in his
judgment.
The further ground of objection, that the money voted in the Act would be
received by the Clerk and paid by him to a Member of Parliament
as a servant or
agent of the Crown, is also valid. He is answerable to the Crown, and to the
Crown alone. Cockburn, C.J. said in
his judgment in the same case, referring to
the jurisdiction to issue a Writ of Mandamus, " I take it, with reference to
that
jurisdiction, we must start with this unquestionable principle, that when a
duty has to be performed (if I may use that expression)
by the Crown, this Court
cannot claim even in appearance to have any power to command the Crown ; the
thing is out of the question.
Over the Sovereign we can have no power. In like
manner where the parties are acting as servants of the Crown, and are amenable
to the Crown, whose servants they are, they are not amenable to us in the
exercise of our prerogative jurisdiction ". It is
not necessary to refer to any
further authorities on this point because the case cited is still regarded as a
leading authority.
Mr. Jayewardene argued that the Clerk is neither a servant of the Crown nor a
public officer, but a servant of the House. He would,
I think, be a servant of
the House in so far as he has duties to perform in the House ; and he is bound
to obey the commands of
the House : but he is undoubtedly, for the purpose of
the law relating to Mandamus, a public officer who has been appointed under
s.
28 (1) of the Constitution by the Governor-General. He is not a public officer
as that term is used in the Constitution, only
because s. 3 of the Constitution
excludes him from the category of public officers. But if any payments of public
money provided
by the Appropriation Act have to be made, he is the proper person
to make them, and he makes them as a public officer who is answerable
to the
Crown.
The legal position that a person cannot ask for Mandamus against a public
officer to pay him money which the latter holds as a servant
of the Crown was
conceded by Mr. Jayewardene. He admitted that his application must fail if the
Clerk is a servant of the Crown,
and if the money which the petitioner claims is
money of the Crown. The petition, therefore, must fail on this ground alone
535
But in deference to the arguments which we heard in respect of the
constitutionality of the impugned Act, I think we should express
our opinion on
the question where the petitioner is still a Member of Parliament, as he claims
to be. For the decision of this
question it is not necessary to pronounce
specifically on all the sections of the Act, since sections 5, 7 and 10 alone
are concerned
in this application. If section 5 is valid the petitioner is
disqualified for 7 years from November 16,1965, for sitting or voting
in the
House of Representatives. If section 7 is valid he is deemed to have vacated his
seat in the House of Representatives. And
throughout it must be remembered that
section 10 and the certificate of the Speaker save such provisions of the Act as
involve
a conflict with the Constitution. New sections 5 and 7 are related to
sections 13 and 24 respectively of the Constitution. Section
13 (3) provides :-
"A person shall be disqualified for being elected or appointed as a
....................member of the House of Representatives
or
for sitting or voting.................... in the House of Representatives
....................
(k) if during the preceding seven years he has been adjudged by a competent
Court or by a Commission appointed with the approval
of the Senate or the House
of Representatives or by a Committee thereof to have accepted a bribe or
gratification offered with
a view to influencing his judgment as a Senator or as
a Member of Parliament."
Section 24 (1) provides-
'' The seat of a Member of Parliament shall become vacant..........
(d) if he becomes subject to any of the disqualifications mentioned in section
13 of this Order. "
It will thus be seen that so far as sections 5 and 7 of the impugned Act are
concerned they seek to add another disqualification
to those provided in s. 13
of the Constitution, and to render the seat of a Member of Parliament vacant on
a ground not already
contained in s. 24 (1) of the Constitution. This is
undoubtedly an attempt to amend the Constitution, and was recognised as such
by
those who sought to make it. That is why the procedure prescribed in s. 29 (4)
was adopted ; and to make the matter clear there
was enacted s. 10 which says
that the Act was to be deemed to be as valid and effectual as though its
provisions were an Act for
the amendment of the Constitution.
Mr. Jayewardene's argument was that as the Act deprived the electors of the
Kalmuiiai Electoral District of the services of the
Member of Parliament whom
they had chosen, and imposed on him penalties, such as vacation of the seat and
the disqualification
from sitting or voting, no Act of Parliament can do this
even by a constitutional amendment. He relied on certain American decisions,
none of which dealt with a similar situation. In United States v. Lovett[1 (1945) 328 U. S. 303.], it
was held that an Act of Congress
536
which prohibited payment of compensation to certain named Government employees
charged with subversive activity was void, as it violated
the Constitution.
There is a certain risk in relying on American decisions which interpret
provisions of that Constitution which
have no parallel in our Constitution. That
decision held that the Act of Congress was a Bill of Attainder which offended
against
Article 1, Section 9, Clause 3 of the Constitution, which states "No
Bill of Attainder or ex post facto Law shall be passed."
There is no provision
of that nature in our Constitution, though the same result could be reached in
Ceylon by attacking the Act
as a usurpation of judicial power, as the Privy
Council has recently shown. But always a distinction must be drawn between Acts
passed in the ordinary way and those passed under s. 29 (4) of the Constitution.
Another American decision cited was Colder v. Bull [1 (1798) 3 U. S. 386. ]. It considered what was an
ex post facto law within
the meaning of the Constitution, and held that the
phrase applied only to penal and criminal statutes. I think that decision is
still good law in America, and its effect would be to prevent the passing of an
Act which inflicted a punishment for any conduct
which was innocent at the time
it was committed, or increased the punishment previously provided for any
specific offence. The
judgment of Chase J. was cited by the Privy Council in its
recent judgment in Liyanage v. The Queen [2(1966) 68 N.L.R. 265, 70 C.
L. W. 1.]. The particular sentence quoted by
Lord Pearce reads : "These acts were legislative judgments ; and an exercise of
judicial power", and it occurs in a passage which reads : "All the restrictions
contained in the Constitution of the
United States on the power of the State
Legislatures, were provided in favour of the authority of the Federal
Government. The prohibition
against their making any ex post facto laws was
introduced for greater caution, and very probably arose from the knowledge, that
the Parliament of Great Britain claimed and exercised a power to pass such laws,
under the denomination of bills of attainder,
or bills of pains and penalties ;
the first inflicting capital, and the other laws, lesser punishment. These acts
were legislative
judgments ; and an exercise of judicial power. ....
................ To prevent such and similar acts of violence and
injustice,
I believe, the Federal and State Legislatures were prohibited from
passing any bill of attainder ; or any ex post facto law."
The citation was
undoubtedly appropriate in the Privy Council judgment because it was there held
that the Criminal Law (Special
Provisions) Act No. 1 of 1962 and the Criminal
Law Act No. 31 of 1962 were enacted with the aim of ensuring that the defendants
who were then in custody should be convicted and should suffer enhanced
punishment. They thus constituted, in the opinion of the
Privy Council, an
interference with the functions of the judiciary. They were aimed at particular
known individuals who were about
to be tried, and taking these and other facts
into consideration they were held to infringe the judicial power. But at the
same
time Lord Pearce made it clear that legislation is not
537
necessarily a usurpation or infringement of the judicial power because it is ad
hominem and ex post facto. He said : " Each
case must be decided in the light of
its own facts and circumstances, including the true purpose of the legislation,
the situation
to which it was directed, ........
and the extent to which the legislation affects, by way of direction or
restriction, the discretion
or judgment of the judiciary in specific
proceedings." I cannot, however, see any resemblance between the substance of
the
impugned Act and the two Acts which the Privy Council considered in their
judgment. The former Statute was enacted in order to give
effect to the findings
of the Commission of Inquiry which had finished its task. The latter Statutes
were " a legislative
plan ex post facto to secure the conviction and enhance the
punishment of particular individuals."
But what is more important, and I think decisive, is the fact that the impugned
Act was passed as a Constitutional amendment with
the Speaker's certificate to
protect it, while the two Acts considered by the Privy Council were not. The
Privy Council has, in
this judgment and earlier, held that s. 29 (1) of our
Constitution "was intended to and did have the result of giving to the
Ceylon
Parliament the full legislative powers of a sovereign independent State ". The
only limitation on that power is that
contained in s. 29 (2), as the Privy
Council held in Rana-singhe's case [1 (1964) 66 N. L. R. 73. ]. It is beyond doubt that the
words used in
s. 29 (1) of the Constitution are the words " habitually employed to denote the
plenitude of sovereign legislative
power."
Mr. Jayewardene submitted that the impugned Act was not a law contemplated by s.
29 (1) because it was in effect a judgment or an
enactment interfering with
judicial power, and could not be saved even by the s. 29 (4) certificate. But
the answer to that argument
is that an amendment of the Constitution made in
accordance with s. 29 (4) becomes a part of the Constitution, entitled to all
the obedience due to any other part of the Constitution. It is not for the Court
to say that a law passed by two-thirds of the whole
number of members of the
House does not conduce to peace, order and good government. The Court is not at
liberty to declare an
Act void because it is said to offend against the spirit
of the Constitution though that spirit is not expressed in words. "
It is
difficult upon any general principles to limit the omnipotence of the sovereign
legislative power by judicial interposition,
except so far as the express words
of a written Constitution give that authority''-per Kania C.J. in Gopalan v. The
State of Madras
[2 (1950) 63 L. W. 638.]There is also the opinion of Isaacs and Rich JJ. in McCawley
v. The King[3 (1918) 26 C. L. R. 9.] that "there
is nothing sacrosanct or magical in the word
"Constitution", the expression itself not indicating how far, or when, or
by
whom, or in what manner the rules comprising it may be altered. All these things
must depend upon the rules themselves."
Sir Owen Dixon on his appointment as
Chief Justice of the High Court of Australia in 1952 said this": "The Court's
538
sole function is to interpret a Constitutional description of power or restraint
upon power and say whether a given measure falls
on one side of a line
consequently drawn or on the other, and it has nothing whatever to do with the
merits and demerits of the
measure. .........
There is no safer guide to judicial decisions in great conflicts than a strict
and complete legalism."
The judgment of the Privy Council in Liyanage's case contains some very
significant passages which are relevant to this part of
the argument. It said, "
there exists a separate power in the judicature which under the Constitution as
it stands cannot
be usurped or infringed by the executive or the legislature"
and again, "Their Lordships cannot read the words of s. 29
(1) as entitling
Parliament to pass legislation which usurps the judicial power of the
judicature-e.g. by passing an act of attainder
against some person or
instructing a judge to bring in a verdict of guilty against some one who is
being tried- if in law such
usurpation would otherwise be contrary to the
Constitution. There was speculation during the argument as to what the position
would
be if Parliament sought to procure such a result by first amending the
Constitution by a two-thirds majority. But such a situation
does not arise here.
In so far as any Act passed without resort to s. 29 (4) of the Constitution
purports to usurp or infringe
the judicial power it is ultra vires." (the
italics are mine in each case). It is that situation we are faced with now, and
I have given my view after anxious consideration.
Dealing with the matter on a lower plane, the Solicitor-General also submitted
that the Constitution itself provided in s. 13 (3)
(k) for a Commission
appointed with the approval of the House of Representatives or a Committee of
the House to adjudge one of
its Members guilty of a charge of accepting a bribe
or gratification, and thereby passing judgment on him. In this case the
petitioner
was a Member of Parliament whom the House of Representatives, by
passing the impugned Act, judged unfit to occupy his seat any longer
because of
the findings of the Commission of Inquiry. In my view, sections 13 and 24 of the
Constitution lend support to the view
I have formed that, apart from other
considerations which may affect the other provisions of this Act, the
Legislature was well
within its powers when it enacted sections 5 and 7 with the
necessary two-thirds majority. The case of The Queen v. Richards'[1
(1954) 92 G.
L. R. 157.]-, which the Solicitor-General cited, is not exactly in point, but it
throws light on the nature of the
particular power which has been exercised in
sections 5 and 7 of this Act, had they and section 10 alone been enacted. Dixon
C.J.
pointed out in that case, which was one where the Speaker of the House of
Representatives of the Commonwealth Parliament issued
a warrant of arrest, that
there has been throughout the course of English history a tendency to regard the
powers of the House
of Commons in such matters as not strictly judicial but as
belonging to the legislature, as something essential or at any rate proper
for
its protection. I see no objection to the Ceylon House of Representatives, by a
539
constitutional amendment, extending the power it had under s.13 (3) (k) to this
particular case by enacting sections 5 and 7 of the
impugned Act. They do not
thereby exercise judicial but legislative power, and retrospectively impose a
disqualification on one
who was already a Member of Parliament.
Mr. Jayewardene also attacked the procedure by which Parliament passed the
impugned Act. He submitted that the Constitution should
first have been amended
by a separate Act which empowered the Legislature to exercise judicial power and
to pass Bills of Attainder.
A Bill should then have been placed before
Parliament containing provisions similar to sections 2 to 9. He read the words "
Bill for the amendment or repeal of any of the provisions of this Order "
appearing in s. 29 (4) of the Constitution as contemplating
only a Bill which
directly amended or repealed specific provisions of the Constitution, and not a
Bill such as the one before us.
For this argument he relied mainly on the case
of Cooper v. Commissioner of Taxes for Queensland[1 (1904) 4 C. L. R. 1304. ]. The
High Court of Australia
held in that case that it was not competent for the Legislature of Queensland to
pass any enactment inconsistent
with the provisions of the Queensland
Constitution Act without first specifically amending the Constitution. In
effect, the High
Court held that the doctrine of amendment by subsequent
inconsistent enactment was not available, and that there should have been
an
antecedent amendment of the Constitution before any Act which came into conflict
with the Constitution was passed.
In my opinion Cooper's case ceased to be of any authority after the decision of
the Privy Council in McCawley v. The King[2 (1920)
A. C. 691.], which overruled Cooper's case and
held that a provision of any Act which was inconsistent with a term of the
Constitution
of Queensland operated as a repeal by inconsistency. In the Privy
Council judgment Lord Birkenhead approved the dissenting judgment
of Isaacs and
Rich JJ. in McCawley v. The King [3 (1918) 26 C. L. R. 9.]. It is useful to quote two passages from that
dissenting
judgment."Implied repeal by antagonistic legislation of an
affirmative character is said to be legally impossible. No doubt
is raised as to
the competency of the Queensland Parliament to pass the self-same Act in the
same terms, in the same way, by the
same royal assent. But it is said to be
dependent upon the condition that it previously passed an Act expressly labelled
as an
amendment of the Constitution Act, and expressly repealing or altering the
sections referred to. All this, it is said, arises because
the
Constitution Act of 1867 is labelled "Constitution". If such efficacy is given
to that Act because of its label, then
it is self-evident that any other Act
passed in the ordinary way, provided no specific manner or form is prescribed
for such an
Act, will be of equal validity if only it be similarly labelled. And
so, ultimately it comes to a question of prefatory label."
Also, "Does English
law make any distinction between an express repeal and an implied repeal? We
think not. Given the competent
540
authority, given the absence of any stated requirements as to special method of
repeal, we know of no doctrine that upholds a repeal
if express, and condemns it
if necessarily implied. The effect is the same. The effect of the repealing Act
must therefore depend
on what it does, and not on the label it affixes to
itself." They quoted with approval an opinion of the Attorney-General and
the
Solicitor-General for England which said : " It must be presumed that a
legislative body intends that which is the necessary
effect of its enactments ;
the object, the purpose and the intention of the enactment, is the same ; it
need not be expressed in
any recital or preamble ; and it is not (as we
conceive) competent for any Court judicially to ascribe any part of the legal
operation
of a Statute to inadvertence."
These passages which I have cited are, I think, a sufficient answer to Mr.
Jayewardene's argument that both the short and the long
titles of the Bill under
consideration are wrong, and that the Bill should have been expressly stated to
be a Bill for the amendment
or repeal of the Constitution and not one for the
imposition of civic disabilities. There is, however, also the case of Krause,
v.
Commissioner for Inland Revenue[1 (7920) A. D. 286.] cited by the Solicitor-General where Wessels J.A. said : " If a later
Act of Parliament is inconsistent with the South Africa
Act, the Court may hold that the later Act impliedly varies such part of
the
South Africa Act as is inconsistent with the later Act........ In considering
whether
the Legislature intended the later Act
to supersede a provision of the South
Africa Act, the Court must take into consideration the whole of the later Act as
well as
the South Africa Act, and gather from these Acts, as well as from the
effect of the legislation, what the Legislature intended when
it passed the
later Act."
Lord Birkenhead referred in McCawley's case to the difference between a
controlled and uncontrolled Constitution. In the case of
the latter, he said,
the terms " may be modified or repealed with no other formality than is
necessary in the case of other
legislation", while the former " can only be
altered with some special formality, and in some cases by a specially convened
assembly ". In this sense, the Ceylon Constitution is controlled because it
prescribes in s. 29 (4) a requirement which has
to be complied with in the case
of Bills to amend or repeal any of its provisions. But apart from the
certificate of the Speaker
under that sub-section no other condition is to be
found anywhere in it. That is the only procedure stipulated by the Constitution,
and it would be wrong to require other formalities which are not prescribed by
the Constitution itself. The restraint or limitation
which Mr. Jayewardene has
sought to introduce in the form of a preliminary Act is a negation of the
principle of repeal or amendment
by subsequent inconsistent enactment.
541
The Privy Council in Bribery Commissioner v. Banasinghe
[1 ('964) 66 N. L. R. 73.] considered section 29
(4) and pointed out that
the Bribery Act No. 11 of 1954, Cap. 26 had the
necessary certificate of the Speaker, because it was treated as coming within s.
29 (4). Section 2 of that Act reads :-
2 (1) Every provision of this Act which may be in conflict or inconsistent with
anything in the Ceylon (Constitution) Order in Council,
1946, shall for all
purposes and in all respects be as valid and effectual as though that provision
were in an Act for the amendment
of that Order in Council enacted by Parliament
after compliance with the requirement imposed by the proviso of sub-section (4)
of section 29 of that Order-in-Council.
(2) Where the provisions of this Act are in conflict or are inconsistent with
any other written law, this Act shall prevail.
Although the terms of this section are different from the terms of s. 10 of the
impugned Act, it is obvious that both sections were
inserted in order to comply
with s. 29 (4) of the Constitution. Nowhere in that Frivy Council judgment was
it suggested that the
Bribery Act No. 11 of 1954 was invalid because it was not
preceded by a separate Act to amend or repeal any of the provisions of
the
Constitution. The judgment considered the validity of the Bribery (Amendments)
Act No. 40 of 1958 which came into conflict
with section 55 (1) of the
Constitution and held it to be invalid because it did not comply with the
procedural requirements imposed
by the proviso to s. 29 (4) of the Constitution.
It is not difficult to gather from the judgment that the amending Act would have
been valid if it had the Speaker's certificate, for Lord Pearce said, " where an
Act involves a conflict with the Constitution
the certificate is a necessary
part of the Act making process ''. After explaining the difference between
McCawley's case and Ranaainghe's
case, Lord Pearce said that alterations of the
Constitutional provisions, whether implied or express, can only be made by laws
which comply with the special legislative procedure laid down in section 29 (4).
For these reasons I would dismiss this application with costs.
G. P. A. SILVA, J.-
In agreeing with the judgment of My Lord the Chief Justice I wish to express my
own views on some of the aspects that arise for consideration
in this
application. Even though the decision of this matter can be confined to one or
two points, I feel that the Court owes a
duty to the Counsel on both sides, who
have presented an exhaustive argument, to deal with all the points raised. The
submissions
made and the cases cited have been dealt with in some detail by My
Lord the Chief Justice.
542
While counsel for the petitioner assailed the validity of the entirety of the
Imposition of Civic Disabilities (Special Provisions)
Act, the Solicitor-General
at the very commencement of his argument, urged that we should not in any event
declare the whole of
the Act in question invalid as there were certain
provisions in the Act which could remain valid even if certain other provisions
may be declared invalid. He based his submission on the doctrine of
severability. This question arose for decision in Ceylon in
the case of
Thambiayah v. Kulasingham[1(1948) 50 N. L. R. 25.] where the point at issue was whether a certain
amendment to the
Ceylon (Parliamentary Elections) Order in Council 1946 was
ultra vires. It was held in that case that the fact of repugnancy to
the
Constitution of a part of a statute did not render the remaining provisions
ultra vires. The Divisional Bench in that case
followed the principle enunciated
in the case of Shyamakant Lal v. Bambhajan Singh et al.[ 2 A. I. R. (1939) Federal Court 74.].
These judgments show that a Court would, in dealing with an Act of Parliament,
be only justified in pronouncing whether any particular
provision therein is
ultra vires or not and it would be travelling outside the scope of its powers if
it pronounces the entirety
of an Act of Parliament invalid unless every single
provision is repugnant to an existing provision of the Constitution. An Act
of
Parliament will remain on the statute book until it is repealed by another Act
of Parliament or until it lapses by reason of
any time limit imposed on its
operation by the Act itself and the Courts will be competent only to pronounce
on the validity of
a particular provision of an Act which is sought to be
impugned by any party affected by such provisions. The Solicitor-General
has
also drawn attention to the case of Ashivarden v. Tennessey Valley Authority[3 (1935) 297 United States Report at page 288.],
in which a number of useful rules were laid down in regard to the manner in
which Courts should approach constitutional questions.
The principles laid down
in this case serve as a guide to decide this as well as the other aspects
arising in the instant case.
The Privy Council has confirmed this principle of
severability in the last paragraph of the judgment in Liyanage v. The Queen[4
(7966) 68 N.L.R. 265; 70 G. L. W. 1.]Having earlier, in dealing with the offending provisions of this legislation,
characterised
the Acts as a legislative plan ex post facto to secure the
conviction and enhance the punishment of particular individuals and for
that
reason bad, the Privy Council drew pointed attention to certain other provisions
of the Act which in their view could survive
on this principle of severability.
When therefore they pronounced the Acts to be invalid they must necessarily be
taken to have
pronounced to be invalid such of the provisions as were repugnant
to the Constitution on the ground that the alterations to the
existing criminal
law effected by the Acts constituted an incursion into the judicial sphere. On
the authority of this case and
the earlier cases cited, the Solicitor-General's
contention must be upheld. There are to be found in this Act provisions
disqualifying
the persons mentioned in the schedule from future appointments in
the Public Service or from election to any local
543
body for seven years. These provisions are innocuous and will remain valid even
if certain other provisions which are impugned in
this case are declared to be
invalid. The main questions that require consideration would fall into the
following categories :-
(1) Whether the Parliament has the power to pass legislation which would
disqualify a member from sitting and voting and from continuing
as a member by
reason of a certain state of facts, which existed before such member even
contested the election at which he was
duly elected a Member of Parliament and
which was not a disqualification according to the law as it then existed.
(2) Is such an Act of the Legislature, or does such Act tantamount to, a
usurpation of the functions of the Judicature and, if so,
does it violate the
principle of separation of powers which has been recognised by our Constitution
and confirmed by the judgment
of the Supreme Court in the first Trial-at-Bar,
Queen v. Liyanage and others [1 (1962) 64 N. L. R. 313. ], as well as in the Privy
Council judgment in
Liyanage v. The Queen [ (1966) 68 N.L,R- 265 ; 70 C. L. W. 1.].
(3) Does this Act contain a law or laws within the meaning of section 29 (1) of
the Constitution.
(4) Does the Act in question constitute an amendment of the Constitution.
(5) In any event is the Clerk to the House of Representatives the holder of a
public office against whom a writ of mandamus from
the Supreme Court, compelling
him to perform a certain duty, lies.
In regard to the first point, it is manifest that the provisions of the Act
proper have as their aim the imposition of certain disabilities
on the six named
individuals. Sub-section (3) (k) of section 13 of the Ceylon Constitution which
contains the disqualification
of members of either House shows that one of the
disqualifications for being elected or appointed as a Senator or a Member of the
House of Representatives or for sitting or voting in either House is that, inter
alia, he has been, during the preceding seven
years, adjudged by a Commission
appointed with the approval of that House or by a committee thereof to have
accepted a bribe or
gratification. This is an indication that even at the time
of the drafting of the Constitution a special jurisdiction as it were
was
conferred on each House in the sphere of bribery, to disqualify a member of such
House without the normal condition precedent,
namely, a conviction by a Court.
This provision has in effect given the decision of a Committee of the House the
same sanctity
as a decision of a Court in regard to the acceptance of a bribe by
a member. It seems to me that if such a disqualification can
result from a
decision of even a Committee of the House, a fortiori, an Act of Parliament
which is passed by both Houses would
result in such disqualification. When an
Act of Parliament
544
enacts that certain persons who have been found by a particular Commission of
Inquiry to have been guilty of bribery shall be disqualified
for being elected
or appointed as a Senator or a Member of the House of Representatives or for
sitting or voting in the Senate
or House of Representatives it must be presumed
that the two Houses of Parliament perused the proceedings of that Commission of
Inquiry and were satisfied of the correctness of the findings when both Houses
proceeded to pass the enactment ; and thereafter
the decision of the Commission,
even though the latter was not appointed with the approval of the Senate or the
House of Representatives,
must be considered to be translated into a decision of
both Houses of Parliament. Mr. Jayewardene in this connection made several
complaints in regard to the findings of the Commission of Inquiry one of which
was even bias on the part of one of the Commissioners.
Had the petitioner in the
first instance made a successful attack on these findings-I do not know in which
appropriate proceeding
he could have done so-the situation would have merited
different considerations. As it is, however, the findings of the Commission
remain intact and the Parliament has based the present enactment on those
findings as they stand.
The question as to the validity of ex post facto legislation in this case
arises for consideration in this regard. For, the act or
acts of bribery
referred to were clearly committed and the finding thereon arrived at
by the Commission even before the member concerned
sent in his nomination papers for the election. Mr. Jayewardene advanced a number
of cogent and powerful arguments in this connection
which would have
persuaded me to decide this question in his favour had it not been for
the now settled view in regard to retrospective
legislation. The gravamen
of Mr. Jayewardene's attack was that while the words of Section 13 (3)
(k) contemplated a situation where
the decision as regards the disqualification had been taken prior to the election or appointment as a Senator or
Member of the House,
the present enactment effected a disqualification
which was not a disqualification at the time the petitioner was duly
elected as
a Member of Parliament to represent his constituency and that
the Parliament cannot enact law which would deprive the electors of
the
candidate of their choice who was duly elected. The principle that the
Parliament has the power to pass retrospective or ex post
facto legislation
has now been well established, vide the Order of Court in The Queen
v. Liyanage and others[1 (1963) 65 N. L. R.
73. ]. The question was also considered in the
Order of Court dated 21.6.1965 in the subsequent Trial-at-Bar
No. 1 of 1965 (The Queen
v. Abeysinghe and another [2(1965) 68 N.L.R. 386.]) in the
following passage :-" These principles which have been the subject
of judicial interpretation in England would equally apply to the Parliament of Ceylon. The only restriction placed upon the legislative
power
of Parliament in Ceylon is to be found in Section 29 and, in a sense, to a
limited extent in Section 39 of the Ceylon (Constitution)
Order in Council
itself and so long as any Act of Parliament is duly passed and does not
545
offend against restrictions placed in the sections referred to above, either
expressly or by necessary implication, courts of law
are obliged to treat such
Acts of Parliament as having enacted good law, be it prospective or
retrospective. We may say that this
matter was fully argued and received careful
consideration by a Bench of three Judges of this Court before whom the
Trial-at-Bar
No. 2 of 1962 was held and their rejection of the argument in
regard to the invalidity of retrospective legislation fortifies the
conclusion
which we ourselves have reached. On an examination of a number of decisions of
the English Courts we observe that this
is one of those subjects in regard to
which all the decisions have been in one direction, despite the almost universal
natural
revulsion of Judges towards the concept of retroactive laws." I am
therefore of the view that the ex post facto nature of the
legislation does not
affect its validity. The fact that this legislation touches a matter which
belongs to the field of conduct
of members over which the House has full control
would tend to reduce the offensive nature, if any, of such legislation.
This leads me to the second point as to whether this legislation is, or is
tantamount to, a usurpation of the functions of the judicature.
This is an
aspect that has given me considerable anxiety in this case, namely, the question
whether the acceptance of a bribe being
punishable under the Penal Code, the
present legislation which has as its object the disqualification of a member for
acceptance
of a bribe, indirectly has the effect of a person being convicted by
legislation whereas there should be a conviction by court,
and, if so, whether
such legislation being an inroad into the judicial sphere, is ultra vires to the
extent of the inroad so made.
Mr. Jayewardene sought to argue that there was a
clear separation of powers recognised by our Constitution and that, as far as
the powers of the Judicature which are entrenched in the Constitution are
concerned, they are unalterable and that any inroads on
the Judicature by the
Legislature will be invalid to the extent that they conflict with the entrenched
powers of the Judicature.
In his submission this was the view expressed by the
Privy Council in Liyanage v. The Queen, referred to above. The relevant
observations
of the Privy Council in this connection are contained in the
following passage :-" Section 29 (1) of the Constitution says
:-'Subject to the
provision of this Order, Parliament shall have power to make laws for the peace,
order and good government of
the Island.' These words have habitually been
construed in their fullest scope. Section 29 (4) provides that Parliament may
amend
the Constitution on a two-thirds majority with a certificate of the
Speaker. Their Lordships however cannot read the words of Section
29 (1) as
entitling Parliament to pass legislation which usurps the judicial power of the
judicature-e. g. by passing an act of
attainder against some person or
instructing a Judge to bring in a verdict of guilty against someone who is being
tried-if in law
such usurpation would otherwise be contrary to the Constitution.
There was speculation during the argument as to what the position
would be if
Parliament sought to procure such a result by first amending the Constitution by
a two-thirds
546
majority. But such a situation does not arise here. In so far as any Act passed
without recourse to Section 29 (4) of the Constitution
purports to usurp or
infringe the judicial power it is ultra vires." I understand this observation to
mean that, although
Section 29 (1) gives the fullest scope for the Parliament to
pass laws for peace, order and good government of the Island, it cannot
be
construed as entitling Parliament by a simple majority to pass legislation which
usurps the judicial power of the Judicature
for the reason that such usurpation
would indirectly come in conflict with the Constitution and the legislation
would therefore
be tantamount to an amendment of the Constitution which has been
careful to preserve the independence of the Judiciary in Part VI
thereof. The
two examples given by the Privy Council in this connection, namely, the passing
of an act of attainder against some
person or instructing a Judge to bring in a
verdict of guilty against someone who is being tried, make the view taken by the
Privy
Council quite clear as, in both these instances, if there was legislation
intended to achieve the two purposes mentioned, they would
patently be
usurpations of judicial power.
Let me now examine the bearing of the instances cited by the Privy Council and
the legislative judgment which they had in mind on
the facts of the present
case. Their Lordships went on to say " The pith and substance of both Acts was a
legislative plan
ex post facto to secure the conviction and enhance the
punishment of those particular individuals. It legalised their imprisonment
while they were awaiting trial. It made admissible their statements inadmissibly
obtained during that period. It altered the fundamental
law of evidence so as to
facilitate their conviction, and finally it altered ex post facto the punishment
to be imposed on them.
In their Lordships' view that cogent summary fairly
describes the effect of the Acts. As has been indicated already, legislation
ad
hominem which is thus directed to the course of particular proceedings may not
always amount to an interference with the functions
of the judiciary. But in the
present case their Lordships have no doubt that there was such interference ;
that it was not only
the likely but the intended effect of the impugned
enactments; and that it is fatal to their validity. The true nature and purpose
of these enactments are revealed by their conjoint impact on the specific
proceedings in respect of which they were designed, and
they take their colour,
in particular, from the alterations they purported to make as to their ultimate
objective, the punishment
of those convicted. These alterations constituted a
grave and deliberate incursion into the judicial sphere. " With these
observations in the forefront it is not difficult to compare and contrast the
facts of the case before us in order to arrive at
a conclusion whether there is
any resemblance of one case to the other in any respect. In the instant case
what may be termed a
Royal Commission was appointed with certain terms of
reference to probe reported cases of bribery among certain Members of
Parliament,
in terms of existing laws in regard to commissions of inquiry. The
Commission was appointed at the instance of one Parliament. Those
against whom
allegations of bribery were
547
made were given notice of the allegations and were represented by counsel at the sittings of the Commission. The Commission arrived at certain findings which held the persons named in the schedule to the Imposition of Civic Disabilities (Special Provisions) Act to be guilty of bribery. The Parliament which was responsible for the appointment of the Commission took no action on the Commission's report. A subsequent Parliament which defeated and replaced the Parliament which appointed the Commission have thought it fit to pass the Act referred to, imposing disqualifications and disabilities against those found guilty by the Commission without making any modification or qualification in the report of the Commission. Can it be said in these circumstances that the Parliament which passed the present Act had any plan at all to secure the punishment of any particular individuals who had in some manner offended the government in power. Far from there being even the semblance of a plan, the whole ground was prepared by one Parliament and the implementation was by another which, as I said before, displaced the earlier one. There was no changing of any law, no placing of any barrier against these individuals in the way of their defences, no violation of any principle of natural justice in securing the findings against these individuals ; in short not one factor which shows that the procedure adopted in this case at the instance of one Parliament was anything out of the ordinary either in regard to the appointment of the Commission or the mode of inquiry adopted by the Commission in reaching their decision touching the six persons concerned, nor did the legislation by the other Parliament which enacted the impugned Act have any plan to disqualify the six persons of its choice as the choice had already been made by a Commission appointed during the period of its predecessor. A vital distinction between the legislation for the trial of the Coup suspects and this enactment regarding the restriction of the Act to named individuals is that, while in the Coup case the named persons were awaiting trial, with the presumption of innocence operating in their favour, the six persons named in this schedule had already been found guilty of allegations of bribery long before the Act was passed. Briefly stated, in the one case the enactment intended to regulate the trial which preceded the finding against the named individuals ; in the other the finding preceded the enactment. In these circumstances I fail to see how there has been any incursion into the judicial sphere by the legislature in this case when it merely disqualified a Member of Parliament for findings of bribery which had already been finalised several years before the legislation was passed. It seems to me that the real question which arises for consideration is the objection to the ex post facto character of the legislation. I have dealt with this aspect already and in the state of the existing law there can be only one view in this regard.
548
As regards counsel's contention that these disabilities were in the nature of penalties imposed on these six persons and that the legislature in imposing such penalties had impinged on the province of the judiciary, there is a further important distinction between legislation intended to punish any particular individuals who would render themselves liable to punishment under the ordinary law of the land and legislation intended to impose certain disqualifications or disabilities on present or prospective members of the House qua members. While in regard to the first category a Court would in certain circumstances hold the legislation to be invalid as being an encroachment on the province of the judiciary a Court will be slow to invalidate any law passed by the Parliament imposing certain disabilities or disqualifications on Members of Parliament in view of the power the Parliament has to control its own proceedings and impose its own discipline. Further, the offence of bribery mentioned in Section 13 (3) (Tc) of the Order in Council is not the same as that contemplated in the Penal Code. There are two chapters of the Penal Code dealing with offences of bribery, namely, Chapter IX which relates to the acceptance of gratifications by public servants as a motive or reward for doing or for forbearing to do official acts and Chapter XI which relates to the acceptance of a gratification to screen an offender from legal punishment. The offence contemplated in the Order in Council, however, is the acceptance of a bribe by a member of either House with a view to influencing his judgment in that capacity. It seems to me therefore that bribery among Senators and Members of Parliament is an area where each House by virtue of the Constitution itself exercises a sort of special jurisdiction and a finding by a Commission appointed with the approval of the Senate or the House of Representatives or by a Committee thereof will have the same force as an adjudication by a competent Court. What the present Act seeks to achieve is to extend this disqualification to certain persons found guilty of this same offence by a Commission of Inquiry appointed under the Commissions of Inquiry Act. Any legislation therefore in this area will carry with it a further argument in support of validity.
Implicit in the words of the Privy Council is the condition precedent that the provisions of the Constitution with regard to the Judicature are present in their existing form. This is far from saying that the powers of the Judicature which are set down in Part VI are unalterable. The last sentence of the passage quoted above, namely, " In so far as any Act passed without recourse to Section 29 (4) of the Constitution purports to usurp or infringe the judicial power it is ultra vires.", to my mind, can also be expressed differently, namely, that where an Act is passed after due recourse to Section 29 (4) of the Constitution, even though that Act usurps or infringes the judicial power, it is intra vires. If one were to use almost the identical phraseology of the Privy Council, it would mean that, even though any Act passed with recourse to Section 29 (4) of the
549
Constitution purports to usurp or infringe the judicial power, it is not ultra
vires. In my judgment there is no justification to
draw from this passage the
inference which is contended for by the learned Counsel for the petitioner,
namely, the unalterability
of the separation of judicial power in the
Constitution. Such an alteration can, I think, be validly achieved if Parliament
passes
the necessary legislation with a two-third majority and the certificate
of the Speaker, in terms of Section 29 (4) although, as
the Constitution stands
at present, there is such a separation of power which cannot be infringed by an
ordinary Act of Parliament
for the good reason that such an infringement will be
ultra vires the Constitution which alone conferred on Parliament that very
power
to legislate.
There is a further argument that militates against Mr. Jayewardene's contention.
In giving expression to the plenitude of powers
of our Legislature, Section 29
proceeded in sub-sections 2 and 3 to enumerate certain limitations in respect of
such powers. The
acceptance of Mr. Jayewardene's contention would necessarily
lead to the implication that apart from the limitation imposed by sub-sections
2
and 3 of Section 29 there is a further limitation which the Constitution has
chosen silently to express, namely, that no law
shall remove or reduce any of
the powers of the Judicature which have been provided for in the Constitution
and that any law made
in contravention of this limitation shall to the extent of
such contravention be void. It is a cardinal rule of interpretation that
when
certain exceptions or limitations are laid down touching any particular
provision, no further exceptions or limitations should
be read into the
provisions-expressio unius exclusio alterius. This principle too would therefore
dissuade a Court from accepting
the argument that apart from the express
limitation contained in Section 29 (2) there is a further restriction on
Parliament to
pass laws which conflict with the entrenched principle of
separation of judicial power.
On the next point for consideration Mr. Jayewardene argued that this Act did not
contain any law within the meaning of Section 29
(1). His submission was that,
according to sub-section 29 (4), Parliament could pass any legislation to amend
or repeal the Constitution
only in the exercise of its powers under Section 29
(1); that Section 29 (1) conferred on the Parliament the power to make laws
for
the peace, order and good government and as this Act does not contain any law or
laws which are contemplated in Section 29
(1), Parliament exceeded its powers in
passing this Act. His argument on this aspect too again revolved round the
contention that
a legislative judgment is not law as decided by the Privy
Council in the judgment referred to. This Act which, according to his
contention, purported ex post facto to secure a finding of guilty of six named
individuals for bribery, being therefore a legislative
judgment of the type that
was referred to in the Privy Council decision, is not legislation which the
Parliament could properly
pass. The answer of
550
the Solicitor-General to this contention was that the limitation on legislation, apart from those mentioned in Section 29 (2), resulted not from the word law in Section 29 (1) but from Part VI of the Constitution which secured the independence of the Judiciary. As the Constitution stood, great care has been taken to secure the independence of the Supreme Court and of all the members of the Judicial Service by vesting the power of appointment of the latter in the Judicial Service Commission. There was therefore entrenched in the Constitution a separation of legislative and executive power on the one hand from the judicial power of the State on the other so that, if there was any ordinary legislation which, although it conformed to the normal processes for the passage of legislation, constituted in pith and substance an incursion into the judicial sphere, in that the legislation brought about a certain situation in which the Judiciary, instead of independently exercising its judgment, was constrained or compelled to exercise it in a particular way, such legislation would, by reason of its repugnance to the aforesaid entrenched powers of the Constitution, be ultra vires. These objectionable elements, in the Solicitor-General's submission, are not present in this Act. On a careful analysis of the Privy Council decision I am inclined to favour this view. I am also inclined to accept the submission of the learned Solicitor-General that Section 29 (1) has always been interpreted to give Parliament the widest possible legislative powers known to the British Constitution subject to the limitations set out in Section 29 (2), this submission too being supported by the Privy Council judgment when it stated "These words have habitually been construed in their fullest scope." As I have already expressed the view that this enactment is not a legislative judgment and does not make any inroad into the judicial sphere I do not find it possible to accept Mr. Jayewardene's argument that this Act does not constitute a law which the Parliament is empowered under Section 29 (4) to make. It must be remembered that the Privy Council also held in the very judgment relied on by Mr. Jayewardene that every enactment which can be described as ad hominem and ex post facto does not inevitably usurp or infringe the judicial power. When one considers all the qualifications contained in the conclusions arrived at by the Privy Council in this case it seems to me that their Lordships did not base this decision on one particular fact or circumstance. Like the necessity for the presence of all the links in a chain of circumstances the totality of which goes to prove a case of circumstantial evidence it is the presence of a number of circumstances at the same time in the Coup case, namely, the facts disclosed in the white paper, the alteration of existing laws, the limitation of the law to specific named individuals and the wresting from the Judges their proper judicial discretion regarding the punishment, that made the Privy Council characterise the Acts as legislative judgments. Just as a case of circumstantial evidence would fail owing to the absence of a necessary link in the chain of circumstances,
551
the absence of any one of these essential circumstances may have led the Privy
Council to take a different view and to hold the impugned
provisions to be intra
vires the Constitution. It will therefore be unsafe on the authority of the
Privy Council decision to rush
to a conclusion that Parliament has enacted a
legislative judgment by reason of the mere presence of one or more of the
features
that are present in the Criminal Law (Special Provisions) Act in such
an enactment.
I shall now consider the next point of attack made by the counsel for the
petitioner, namely, that this enactment does not constitute
an amendment of the
Constitution. In his submission the original Bill was on the face of it not an
amendment of the Constitution
but a Bill to impose civic disabilities etc., and
this description did not comply with the provisions of Section 29 (4) which
requires
such a Bill to bear on the face of it that it is an amendment of the
Constitution. He also brought to our notice in his support
one or two previous
amending Acts which were described as such. He also submitted that the danger of
a Bill, not bearing on its
face such a description was that neither the members
of the House nor the public will have notice of such an amendment which must
be
considered to be of greater importance than an ordinary enactment. Finally he
submitted that Section 10 of this Act clearly
stated that it was not an
amendment but that any provisions therein which were inconsistent with the
Constitution shall be deemed
to be an amendment. In my view there can be either
a direct amendment of a particular provision in the Constitution or one which,
though not a direct amendment, may have the effect of an amendment of one or
more provisions. In the latter case, it may not always
be practicable to
describe a Bill as an Amendment of a particular provision. Section 10 on which
counsel relies is itself in my
opinion, the warning for members of the House and
the public that there are, or at least may be, some provisions which constitute
amendments of the Constitution. I do not think that when the proviso to Section
29 (4) proceeded to set out the manner of presentation
of a constitutional
amendment it also intended to prescribe a particular form to be present on the
face of it. If so, I should
have expected such a form to be attached to the
proviso or to an appendix or the proviso to use some phraseology indicating such
an imperative requirement, particularly when another imperative requirement is
categorically stated, namely, the certificate under
the hand of the Speaker that
the number of votes cast in favour thereof in the House of Representatives
amounted to not less than
two-thirds of the whole number of members of the
House. This provision is in fact tantamount to two requirements for a Bill which
amends or repeals the Constitution, namely, a vote of two-thirds of the whole
number of members of the House and a certificate
of the Speaker to that effect.
If these requirements are satisfied, as they have been in this case, I think
that the Parliament,
in terms of Section 29 (4), can amend or repeal any
552
provision of the Constitution subject to any objection which may be raised in
view of Section 29 (2). As any such objection does
not arise for decision in
this case, there is no justification to declare any of the provisions of the
impugned Act to be invalid.
In regard to the last point on which the counsel on either side joined issue,
namely, whether the Clerk of the House of Representatives
is a holder of a
public office against whom a writ of mandamus from the Supreme Court lies, while
I am not prepared, on the material
placed before us, to say that a writ will not
lie against him in any circumstances, in view of the fact that he is constrained
both by this Act of Parliament and by the orders of the Speaker to follow the
course he has adopted in this case, I do not think
that this Court should issue
a writ, which is a discretionary one. In any event, this question does not arise
unless and until
the petitioner successfully establishes the impugned provisions
of the Act to be invalid.
Application dismissed.
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