165-NLR-NLR-V-47-THE-ATTONEY-GENERAL-Appellant-and-FRANCIS-Respondent.pdf
JAYETILEKE J.—The Attorney-General v. Vrands.
407
1946Presen*-: Jayetileke J.Th He ATTORNEY-GENERA Li, Appellant, andFRANCIS, Respondent.
721—M. C. Colombo, 11,250.
Defence (Miscellaneous) Regulations, 1939—Charge under Regulations 17 (1),52—Effect of expiry of a temporary enactment—Interpretation Ordinance(Cap. 2), s. 6 (3).
No proceedings can be taken upon a Defence (Miscellaneous) Regula tionwhich has expired, although the offence in question was committedwhilst the Regulation was in operation.
PPEAL against an acquittal from the Magistrate’s Court, Colombo.
H. H. Basnayake, K.C., Acting Attorney-General (with him A. C. M.Ameer, C.C., and H. Deheragoda, C.C.), for the Attorney-General,appellant.
iS. Nadesan (with him Colvin R. de Silva and K. C. de Silva), for theaccused, respondent.
Cur. adv. vult.
October 25, 1946. Jayetileke —
This is an appeal by the Attorney-General against an order made bythe Magistrate discharging the accused. On December 6, 1945, theaccused was charged with having committed an offence under regulation17 (1) of the Defence (Miscellaneous) Regulations punishable underregulation 52 (3) of the regulations. The trial of the accused was post-poned on five occasions and was eventually taken up on March 3, 1946.On that date Counsel for the accused contended that the regulation underwhich the accused was charged had expired and, therefore, no proceed-ings could be taken upon it. The prosecuting Inspector admittedthat the regulation had expired and stated that, in the circumstances,he could not proceed with the trial. Thereupon the Magistrate dis-charged the accused. At the argument before me the learned Attorney-General contended that though regulation 17 (1) had expired (1) the
468
JA E'i'lLEKB J.—The Attorney ■ General v. Francis.
accused could be dealt with under regulation 52 which was continuedin force, (2) the accused could be proceeded against as the offence wascommitted Whilst the regulation was in operation.
In order to examine these contentions it is necessary to state therelevant provisions of the law. The Defence (Miscellaneous) Regulations,1939, were made by the Governor by virtue of the powers vested in himby section 1 of the Emergency Powers (Defence) Act, 1939. The provi-sions of that Act other than the sections mentioned in paragraph 3were extended to Ceylon by the Emergency Powers (Colonial Defence)Order in Council, 1939. Section 11 of the Act, which is one of the sectionsthe provisions of which were not extended to Ceylon, reads :—
11.(1) Subject to the provisions of this section, this Act shall
continue in force for the period of one year beginning with the dateof the passing ©f this Act, and shall then expire ;
Provided that if at any time while this Act is in force, an addressis presented to His Majesty by each house of Parliament praying thatthis Act should be continued in force for a further period of one yearfrom the time at which it would otherwise expire, His Majesty mayby Order in Council direct that this Act shall continue in force forthat period.
Notwithstanding anything in the preceding sub-section, if HisMajesty by Order in Council declares that the emergency that was theoccasion of the passing of this Act has come to an end, this Act shallexpire at the end of the day on which the Order is expressed to comeinto operation.
The expiry of this Act shall not affect the operation thereofas respects things previously done or omitted to be done.
The Emergency Powers (Defence) Act of 1940 extended the operationof the Act of 1939 for a period of one year and the Emergency (ColonialDefence) (Amendment) Order in Council, 1940, extended the Act of1940 to Ceylon. Thereafter by various Acts and Orders in Council theAct of 1939 was continued in force in England and in Ceylon up toFebruary 24, 1946. The Emergency Laws (Transitional Provisions)Act, 1946, made provision for the continuation of certain defence regula-tions until December 31, 1947, notwithstanding the expiry of the Emer-gency Powers (Defence) Acts of 1939 to 1945. The Emergency Powers(Transitional Provisions) (Colonies, &c.) Order in Council, 1946, gave theGovernor power to provide for the continuation in force of any DefenceRegulations having effect in Ceylon notwithstanding the expiry of theEmergency Powers (Defence) Acts, 1939 to 1945. In pursuance of thatpower the Governor on February 21, 1946, made the Emergency Laws(Transitional Provisions) Order, 1946, whereby he provided that theDefence Regulations specified in paragraph 1 of the Schedule shall becontinued in force until December 31, 1947. Regulation 17 (1) has beenomitted from that schedule but regulation 52 has been included in it.Regulation 52 is the general regulation which provides penalties for anybreach of the regulations. It says that if any person contravenes orfails to comply with any Defence regulation he shall be guilty of anoffence against that regulation. It does not create any new offencebut it gives general power to punish any infraction of any regulation by
JAYETTLEKE J.—The Attorney-General v. Fronds.
469
fine or Imprisonment. It seems to me that it cannot stand alone butit must be read with a regulation which has full force and effect.Presumably it has been contained in force because it provides penaltiesfor breaches of the regulations that are continued in force. I am ofopinion that after the expiry of regulation 17 (1) there was no longerany offence against it for which a penalty could be imposed underregulation 52.
The second limb of the learned Attorney-General’s argument is basedon certain observations made by Parke B and Alderson B. in Steavenson v.Oliverx. Parke B. said :—
“ With respect to the vested interests of those persons who heldwarrants as assistant-surgeons in the navy or army, the intention was,that all who were such either at the time of the passing of the Act orat any time before the 1st of August, 1826, should be in the sameposition, with respect to their right to practise as apothecaries as ifthey had been in actual practice as such before the 1st of August,1815. I am the more disposed to think thus on the ground that thepenalties given by this Act would probably survive its expiration,and that persons who violated its provisions might afterwards bepunished in the way pointed out. If it were not so any person whohad violated those provisions within six months prior to the expirationof the Act, would not be liable to punishment at all. It is, however,unnecessary to decide that point: it is enough to say that we thinkthose who were qualified by being assistant-surgeons in the navybefore the 1st of August, 1826, retained that qualification notwith-standing the expiration of that statute ”.
Alderson B. said :—
“ It seems to me that those persons who, during the year for whichthe last act was to continue in force, or previous to that period, hadobtained rights under it, had obtained rights whieh were not to ceaseby the determination of the Act, any more than where a personcommits an offence against an Act of a temporary nature, the partywho has disobeyed the Act during its existence as a law is to becomedispunishable on its ceasing to exist ”.
The appeal in that case turned upon the interpretation of section 4 of6 Geo. 4. e. 133, whieh enacted that every person who held a commissionas surgeon in the army should be entitled to practise as an apothecarywithout having passed the usual examination. The act was a temporaryone and it expired on August 1, 1826. It was contended that a personwho, under the act, was entitled to practise as an apothecary, wouldlose his right after August 1, 1826. But it was held that such a personwould not be deprived of his right. The observations quoted above weremade in a case in which the court had to consider whether on the construc-tion of the particular enactment the privilege of practising which wasgiven by it continued, notwithstanding its expiration. The" question 1
1 (1841) 8 M & W 234 ; 151 English Report 1024 at 1027.
470
Kandaaamy t>. Sosairo {3. I., Police).
whether proceedings can be taken upon a statute which has expired ispurely one of construction. Parke B. said in the course of his judgment:"if an Act expires the duration of its provisions is a matter ofconstruction ”1.
The effect of the expiration of a temporary statute is very clearly stated byCraie in his treatise on Statute Law (3rd Edition) at page 342 :—
“ As a general rule, and unless it contains some special provisionto the contrary, after a temporary Act has expired no proceedingscan be taken upon it, and it ceases to have any further effect. There-fore, offences committed against temporary Acts must be prosecutedand punished before the Act expires, and as soon as the Act expires,any proceedings which are being taken against a person will ipao factoterminate
It must be noted that section 11 (3) of the Emergency Powers (Defence)Act, 1939, which provided that the expiry of the Act, shall not affectthe operation thereof as respects things previously done or omittedto be done was not extended to Ceylon. In the absence of a provisionthat offences committed before the expiry of regulation 17 can be dealtwith as though the expiry had not taken place I am of opinion that thecharge cannot be sustained. Section 6 (3) of the Interpretation Ordinance(Chapter 2) does not apply to written laws that have expired.
I would, accordingly, dismiss the appeal.
Appeal dismissed.