Bandaranaike v. Weeraratne and Two Others

052-SLLR-SLLR-1978-79-V2-Bandaranaike-v.-Weeraratne-and-Two-Others.pdf


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Bandaranaikev.Weeraratne and Two OthersCOURT OF APPEAL
WIMALARATNE J. (PRESIDENT C/A). VYTHIALINGAM J.
AND COLIN – THOME J.,
APPLICATION NO. 1/78OCTOBER 16, 17, 18 AND 19, 1978
Writ of Prohibition — Special Presidential Commission — Ss. 2 and 9 ofSpecial Presidential Commissions of Inquiry Law No. 7 of 1978 — Is theSpecial Presidential Commission of Inquiry amenable to the writ jurisdictionof the Appeal Court ? — Is Warrant establishing Commission ultra vires ? —Retrospectivity — Collective responsibUitiy.
The Special Presidential Commissions of Inquiry Law No, 7 of 1978, wascertified on 10.2.1978. By warrant dated 29.3.1978 the President appointedthe three respondents to inquire into and report whether between 28.5.1970and 23.7.1977 there had been misuse or abuse of power, interference, fraud,corruption or nepotism, political victimization of any person, any irregula-rity in the making of any appointment or transfer, granting of any promo-
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tion to or the termination of the services of any person or contravention ofany written law by or on the part of the Prime Minister, any Minister or anyPublic Officer or other person and the extent to which he is so responsibleand to make recommendations as to whether any person should, in terms ofs. 9 of the said Law be made subject to civic disability and to make suchother recommendations with reference to any of the matters that have beeninquired into under the terms of the warrant. The petitioner was the PrimeMinister and Head of the Cabinet of Ministers during the period specified inthe Warrant. As a person implicated or concerned in the matters underinquiry she moved for a Writ of Prohibition on the ground that section 9 ofthe Special Presidential Commissions of Inquiry Law does not empower therespondents to make a recommendation that the petitioner shold be madesubject to civic disability by reason of any act or omission or in respect ofconduct during a period anterior to the said Law, and the said Law has notbeen made retrospective in its operation and hence the warrant is ultra viresthe said Law.
The other grounds argued at the hearing relate to:
The principle of the collective responsibility of the Cabinet
The petitioner being responsible for her conduct solely to the parlia-ment of Ceylon and National State Assembly which were thesupreme instruments of State power under the 1972 Constitution.
Infringements of certain provisions of the 1972 Constitution —Articles 4 — {Sovereignty of the People) and 106(5)).
Held:
The Special Presidential Commission of Inquiry is amenable to thewrit jurisdiction of the Court of Appeal.
The Special Presidential Commission Law does not contain provi-sions expressly stated or implying by necessary inference that it is to operateretrospectively. Nor are the surrounding circumstances sufficiently strong torebut the presumption against retrospectively. The law is prospective onlyand meant to apply to future events. The Warrant empowering theCommission to inquire into agd report (with recommendations) on thecoduct of persons during a period prior to the date of the enactment of theLaw is ultra vires the Law and a Writ of Prohibition will lie against theCommissioners.
The principle of collective responsiblity of the Cabinet as a defenceshould properly be addressed to the Commission.
The validity of a Law when once it is passed and endorsed with theSpeaker's certificate cannot be questioned .-The Law is therefore valid even if
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it be in some way inconsistent with the Constitution.
Cases referred to:
Rex v. The Electricity Commissioners [1924] 1 K.B. 171,204.
R. v. Criminal injuries Compensation Board, ex parte Lain [1967] 2 AllER 770, 784.
Fernando v. Jayaratne (1974) 78 NLR 123.
De Mel v. M.W. H. de Silva (1949) 51 NLR 105.
Estate & Trust Agencies (1927) Ltd. v. Singapore [1937] 3 All ER324 (PC).
Nakkuda AH v. Jayaratne (1950) 51 NLR 457.
Re Athlumney f1898] 2 QB 547, 551.
Phillips v.- Eyie (1870) L. R. 6 Q.B. 1.
Q v. Ipswich Union L. R. Q.B.D. Vol. 11 (1876 — 77) 269.
Turnbull v. Foreman (1885) 15 Q.B.D. 234, 236.
Reid v. Reid (1886) L. R. Ch. D. 402, 408.
Starey v. Graham (1899) 1 Q.B. 406, 411.
Attorney-General v. Vernazza (1960) 3 All ER 97.
R. v. Inhabitants of St. Mary, Whitechapel [1848] 12 Q.B. 120.
Master Ladies Taibors Organisation v. Minister of Labour [ 1950] 2 AllER 525.
West v. Gwynne [ 1911] 2 Ch. D. 1.
Inre a Solicitor's Cleark [1957] 1 WLR 1219.
Moon v. Durden [ 1848] 2 Ex. 22.
Re School Board Election for the Parish of Pulborough [1894] 1Q.B.D.725.
The Sunshine Forcelain Potteries Case [1961] AC 927.
D.P.P. v. Lamb [ 1941] 2 K. B. 89.
Buckman v. Button [1943] 1 K. B. 405.
R. v. Oliver [ 1944] K. B. 68.
Williams v. Williams [ 1971] 2 All ER 764. 772-
APPLICATION for a Writ of Certiorari
H. L. de Silva with E. D. Wickramanayake and Gomin Dayasiri for thepetitioner.
S.Pasupathy, Attorney-General, with V. C. .Goonetilleke, Solicitor-General,K. M. M. B. Kulatunge, Additional Solicitor-General and5. Ratnapa/a State Counsel for the repondents.
Cur. adv. vu/t.
November 9, 1978.
WIMALARATNE J. (President, Court of Appeal) read the following judg-ment of the Court.
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The Special Presidential Commissions of Inquiry Law, No. 7 of 1978,was certified on 10.2.1978. Section 2(1) of that Law empowers the Presidentof the Republic, whenever it appears to him to be necessary that an inquiryshould be held and information obtained as to :
the administration of any public body or local authority;
the administration of any law or the administration of justice;
the conduct of any public officer;.or
any matter in respect of which an inquiry will, in his opinion, be inthe public interest or be in the interest of public safety or welfare,
to establish by warrant under the Public Seal of the Republic, a SpecialPresidential Commission of Inquiry consisting of members each of whom isa Judge of the Supreme Court or of any other Court not below a DistrictCourt, to inquire into and report upon such administration, conduct ormatter.
8y warrant dated 29.3.1978, His Excellency appointed the three Respon-dents to be his Commissioners to inquire into and obtain information, inrespect of the period commencing 28.5.1970 and ending 23.7.1977, relatingto :
the administration of any public body, any local authority or anysociety registered or deemed to be registered under the Co-operativeSocieties Law, No. 5 of 1972, or the Janawasa Law, No. 25 of 1976;
the administration of any written law with special reference to thewritten laws specified in schedule A thereto;
the admnisitration of Justice in Sri Lanka;
the conduct of any public officer as defined in the aforesaid Law,No. 7 of 1978;
i
the matters specified in schedule B thereto which, in his opinion, inthe public interest, public safety and welfare required inquiry andreport,
and to report on whether there had been :
misuse or abuse of power, interference, fraud, corruption ornepotism;
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any political victimization of any person;
any irregularity –
in the making of any appointment or transfer of,
the granting of any promotion to,
the termination of the services of, any person,
contravention of any written law,
by or on the part of the Prime Minister, any Minister, or any public officer orother person, and the extent to which he is so responsible, and to makerecommendations as to whether any person should, in terms of section 9of the said Law, be made subject to civic disability, and to make such otherrecommendations with reference to any of the matters that have beeninquired into under the terms of the warrant.
Schedule A contains a list of 37 written laws, whilst schedule B specifiesfour matters, including the administration of two newspaper companies, thefunctioning of the Constitutional Court, and the investigation into the'ktilingof one Premawathie Manamperi of Kataragama, which had been the subjectmatter of Case No. S.C. 623/71 — Magistrate's Court Hambantota 65988.
Section 9 of the Law, which has been the subject of much argument, is inthe following terms
"9(1)Where a commission finds at the inquiry and reports to the Presidentthat any person has been guilty of any act of political victimization,misuse or abuse of power, corruption or any fraudulent act, inrelation to any court or tribunal or any public body, or in relationto the administration of any law or the administration of justice, thecommission shall recommend whether such person should be madesubject to civic disability, and the President shall cause such findingto be published in the Gazette as soon as possible, and direct thatsuch report be published.
Any report, finding, order, determination, ruling or recommenda-tion made by a commission under this Law, shall be final andconclsusive, and shall not be called in question in any court ortribunal by way of writ or otherwise.
For the purpose of this section civic disability shall mean thedisqualification of a person —
(i) from being an elector and from voting at any election of the
CA Bandaranaike v. Weeraratne and Two Others (Wimalaratne, J.)417
President of the Republic, or at any election of a member of theNational State Assembly or of any local authority;
from being nominated as a candidate at any such election;
from being elected or appointed as the President of the Republicor from being elected as a member of the National StateAssembly or of any local authority, and from sitting and voting assuch member; and
from holding office, and from being employed as a public officer.
The Petitioner was the Prime Minister and Head of the Cabinet ofMinisters during the period specified in the warrant. She avers that fromreports appearing in the newspapers and from broadcasts of proceedings heldbefore the Special Presidential Commission by the Sri Lanka BroadcastingCorporation, it is manifest that the Petitioner is a person whose conduct isthe subject of the inquiry held before the Respondents and/or that she is aperson who is implicated or concerned in the matters under inquiry and thatshe is accordingly a person against whom the Respondents will be reqired tomake a recommendation in terms of Section 9. She prays for an order in thenature of a Writ of Prohibition against the Respondents from proceedingto inquire into acts and/or omissions of the Petitioner as Prime Ministeror as a Minister during the aforesaid period, from making findings of guilt inrespect of the said acts or omissions, and from making recommendations as towhether she should be subject to civic disabilities by virtue of such findings ofguilt.
The grounds upon which a Writ of Prohibition is asked for are five innumber. They appear in the following order in the Petition:—
Section 9 of the Special Presidential Commissions of Inquiry Lawdoes not empower the Respondents to make a recommendation thatthe petitioner should be made subject to civic disability by reason ofany act or omission or in respect of her conduct during a periodanterior to the said Law, and the said Law has not been made retros-pective in its operation. By reason of the fact that the warrantauthorises the Respondents to inquire intoi, report upon and makerecommendations in respect of acts and conduct during a periodanterior to the Law, which would make the Petitioner subject to thepenalties, disabilities and disqualifications with reference to suchpast conduct, the warrant is ultra vires the said Law and consequ-ently the Respondents would be acting unlawfully, illegally.andwithout legal authority and in excess of their jurisdiction inpurporting to make any such recommendation.
In purporting to make any finding of guilt and recommendations
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for the imposition of penalties, the Respondents would be actingin violation of the Constitional guarantees stipulated in Article 13(6)of the Constitution of the Democratic Socialist Republic of SriLanka(1978).
In so far as the Special Presidential Commissions of Inquiry Law atthe time of its enactment authorised inquiry into her conduct as aCabinet Minister during the said period, it is inconsistent withsection 46(1) of the Ceylon (Constitution) Order in Council, 1946,and section 92 of the Constitution of Sri Lanka (1972) in terms ofwhich the petitioner was solely responsible to the Parliament-ofCeylon and the National State Assembly, and is accordingly voidprotanto, as it is not a law which was duly passed in accordance withthe aforesaid constitutions.
As Prime Minister and Head of the Cabinet of Ministers she wasresponsible and answerable solely to Parliament and the NationalState Assembly, being the supreme instruments of State powerunder section 5 of the 1972 Constitution. In so far as the warrantauthorised the Respondents who were not members of the NationalState Assembly to inquire into her conduct, it infringed section 4 ofthe 1972 Constitution in terms of which the Sovereignity of thepeople is exercised through the National State Assembly, and isaccordingly void.
The warrant, in so far as it authorises the Respondents to inquire intoand report whether there had been any irregularity in making andeffecting transfer of, granting promotions to, and terminating theservices of State Officer is contrary to Section 106(5) of the Consti-tution of 1972, and is therefore invalid in law.
Article 140 of the Democratic Socialist Republic of Sri Lanka (1978)empowers the Court of Appeal to grant and issue, according to law, ordersin the nature of writs of certiorari, prohibition, procedendo, mandamusand quo warranto against the Judge of any Court of First Instance or tribunalor other institution or any other person.
Logically the first question that arises Is whether the Special PresidentialCommission of Inquiry is a body of persons amenable to the supervisoryjurisdiction of this Court.
The Respondents filed no objections to the present application; andalthough the learned Attorney-General did not at the hearing contest theposition that the Special Presidential Commission of Inquiry is a tribunalsubject to the supervisory jurisdiction of this Court, we consider it necessaryto give our own reasons for the view we take.
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In Rex v. The Electricity Commissioners^Atkin J., stated that certiorariand prohibition may issue "whenever any body of persons having legalauthority to determine questions affecting the rights of subjects, and havingthe duty to act judicially" act in excess of their jurisdiction.
"Having legal authority" generally means having statutory authority, asdistinct from a body deriving its authority from contract or agreement, suchas a voluntary associaton or a domestic tribunal. The legal authority must bean authority "empowered to affect the legal rights of individuals." In thiscontext the term "right" has been given a broad interpretation in Administra-tive Law. The right affected may appertain to personal liberty or status ormay be of a proprietory or fiscal nature. They are not necessarily rights in thejurisprudential sense as being co-relative to duties, but rights in the widersense, including liberties, previleges etc., The word "right" has indeedreceived such a wide meaning, so much so that in R. v. Criminal InjuriesCompensation Board, ex parte Lain^ Ashworth J., suggested that it wassufficient if the determination "affected subjects."
In the case of Fernando v. Jayaratne^ Sharvananda, J., has taken theview that a Writ of Certiorari does not lie to quash the findings in the reportmade by a Commissioner appointed under the Commissions of Inquiry Act(Cap. 393) inasmuch as the Act does not show that the report of theCommissioner was intended to be a step in a process which may in law havethe effect of altering the legal rights or liabilities of persons named in thereport. In the course of his judgment he stated:— (at page 125)
"This auestion was considered in the case of de Mel v. M. W. H. deSilva.^'There the Court held that as the Commissioner did not make anorder affecting the legal rights of persons, his function could not beproperly described as judicial or quasi-judicial and that hence, no writcould lie against him."
But a reading of the judgment in that case, which was a judgment of aDivisional Bench, shows that the Commissioner was a person having legalauthority to determine a question affecting the rights of the petitioner, andhaving the duty to act judicially and that a writ would, in appropriatecircumstances lie against him. Sharvananda J., appears, therefore, to bemistaken in his interpretation that a writ could not issue against theCommissioner in de Mel v. M. V. H. de Silva.^(supra).
Although the writs will not normally issue to a body having no power tomake a binding determination, they have issued to persons and bodies makingreports and recommendations that acquire legal force only after adoption orconfirmation or other consequential action by another body. See Estate &Trust Agencies (1927) Ltd., v. Singapore Improvement Trust ^As stated inHalsbury's Laws of England (4th Edition) Vol: I page 105 para. 83 note 9,:-
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"It seems that the onders (and particularly Prohibition) will issue morereadily when the act in question will have effect, subject to confirmation,of its own force or is an intergral and necessary part of a proceedingwhich will, when complete, have prejudicial effects on the civil rights ofindividuals."
Another requirement is that the body must have a duty to act judicially.The Privy Council, in Nakkuda Ali v. Jayaratne^held that the main criterionis the nature of the process by which the decision is reached and that "whenit is a judicial process or a process analogous to the judicial, certiorari (andaccordingly Prohibition) can be granted." If the general characteristics ortrappings of a tribunal closely resemble those of a court, even when it isexercising functions of a wide discretionary nature, then that tribunal can besaid to have a duty to act judicially. The several provisions of Law No. 7 of1978 leave no room for doubt that a duty has been vested in the Commissionto act judicially. We are, therefore, convinced that the Special PresidentialCommission of Inquiry is a body subject to the supervisory jurisdiction ofthis Court.
We have now to consider the grounds on which Prohibition can begranted. Of the several grounds, one which is well recognised by Administra-tive Law is "Lack of Jurisdiction," "Jurisdiction may be lacking if thetribunal is imcompetent to adjudicate in respect of the parties, the subjectmatter or the locally in question; or if the tribunal, although having jurisdic-tion in the first place, proceeds to entertain matters of make an order beyondits competence." Judicial Review of Administrative Action by S. A. de Smith(2nd Ed: p. 407). The same author goes on to state :
"A tribunal does not go beyond its jurisdiction merely by making adecision that is erroneous in law or fact or even one that is whollyunsupported by evidence. But if the trubunal's error relates to acollateral or preliminary matter upon which its jurisdiction depends, thencertiorari may issue to quash its decision or prohibition may issue toprevent it from proceeding futher." (at page 408).
Learned Cousel for the Petitioner did not press the objection outlined inground 2 above. In regard to ground 3 he did not contend that Law No. 7 of1978 is pro tanto void. He conceded dhat the Law is a valid law. Itsconstitutional validity cannot indeed be challenged before us. What hecontended was that in the interpretation of that law this court should applythe well recognised principles of statutory interpretation, and implement it sohat it does not conflict with the Constitution of 1972, which was the basiclaw when legislation was enacted.
The basis of the 1st ground is that the warrant establishing theCommission is ultra vires the enabling law because it authorises an investiga-tion into, and empowers the Commission to make findings of guilt and
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recommendations for civic disability in respect of acts and conduct of thepetitioner during a period anterior to the law, which recommendations wouldmake her subject to penalties, disabilities and disqualifications with referenceto such past conduct. The Special Presidential Commission of Inquiry Lawdoes not expressly state that it is to have retrospective operation; nor could itbe implied from surrounding circumstances that it was meant to be retro-spective. Therefore the warrant establishing the Commission to inquire intosuch past conduct is bad, and the Commission would be acting unlawfullyand without legal authority and in excess of its jurisdiction.
He supported his argument by reference to several text books and judi-cial decisions mainly concerned with the interpretation of statutes, and withthe meaning Courts have placed on 'retrospectivity.' The contention of thelearned Attorney-General is that the question of retrospectivity does not arisein this instance and that the law was meant to operate not only in the future,but also to embrace past wrong doings.
Perplexing analytical problems arise when the jurisdiction of a tribunalset up by Statute is challenged on the ground that the subject matter doesnot fall within a statutory description delienating its area of competence.The construction of the meaning of the statutory description then becomesall important. That meaning can best be understood after a brief reference tothe machinery for inquiry and investigation that prevailed earlier. There wasthe Commissions of Inquiry Act (Cap. 393) in operation from 8th September,1948 and which had been invoked for manifold purposes from time to time.That Act empowered the Governor General, and subsequently the President,to appoint a Commission of Inquiry to inquire into and report on variousmatters, including the conduct of members of the Public Service. Ministers ofthe Government and Members of the House of Representatives or of theNational State Assembly did not come within the definition of members ofthe Public Service. There was, therefore a doubt as to whether that Act couldbe utilised to probe the conduct of Ministers and Members of Parliament.Although the Act did not specifically enable an inquiry to be held regardingthe administration of any law or the administration of Justice, as is possibleunder the new law, yet if the administration of any law or the administrationof Justice gave rise to a matter of public interest or public welfare, which inthe opinion of the President merited an inquiry by a Commission, that Actmay still have been invoke^!. The Act imposed no requirement, unlike thenew law, that the members of the Commission should be Judges of Courtsnot below the rank of a District Court; yet there was no inhibition fromappointing pnly judicial officers as members of a Commission. Lastly, the Actcontained no provision similar to Section 9 of the new Law. As we see it,therefore, the Special Presidential Commissions of Inquiry Law was intendedto fill a lacuna in the Commissions of Inquiry Act and to empower aCommission of Inquiry consisting of Judges of Courts not below that of aDistrict Court, to inquire into, report upon, make findings of guilt and makerecommendations imposing civic disabilities on not only members of the
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Public Service, but on all Public Officers, including Ministers, Members of theNational State Assembly, as well as State Officers, which term would inlcudeJudges, by virtue of Article 105 of the Constitution of 1972. It will be seen,therefore, that new categories of persons whose conduct could be probedcame within the purvieyv of the Commission; new categories of misconduct,such as abuse of power, political victimisation and corruption could form thebasis of findings of guilt; and a new type of disqualfication, namely, civicdisability, could be recommended in the Report of the Commission. Finally,this Report, together with the recommendations, has to be published in theGazette. The problem we are called upon to decide is whether, in theabsence of express terms, we should construe the rew law to apply retrospec-tively so as to embrace past misdeeds of former public officers, or whether weshould construe it to apply to the future only.
There is in English jurisprudence a definite leaning against, though thereis no constitutional limitation upon, legislation which is made expost factoor is retrospective in its effect. This is based on the well known maxim oflaw "Omnis nova constitutio futuris formam imponere debet, et non praeteri-tis" (Coke 2 Inst. 95 — 292) meaning — "that except in special cases the newlaw ought to be construed so as to interfere as little as possible with vesteorights." Or as Maxwell has stated: "It is a fundamental rule of English Lawthat no statute shall be construed to have a retrospective operation unlesssuch a construction appears very clearly in the terms of the Act, or arises bynecessary and distinct implication. The statement of the law contained in thepreceding paragraph has been 'so frequently quoted with approval that itnow enjoys almost judicial authority.' " — Interpretation of Statutes( 12th Ed. 215-216.)
But it is clear that new law cannot always be solely prospective in itsoperation; it is almost certain to affect existing rights, and still more existingexpectations. Although it may be intended to operate in the future it mayinfringe upon rights and duties which existed long before it came into being.This is particularly true of immovable property, which at some time or othermust come within the ambit of every change in the law relevant to it. Therule of construction is, therefore, limited to this "a retrospective operation isnot to be given to a statute so as to impair an existing right or obligation,otherwise than as regards matters of procedure, unless the effect cannot beavoided without doing violence to the langu«vge of the enactment. If theenactment is expressed in language which is fairly capable of either interpre-tation it ought to be interpreted as prospective only." — Per Wright J., in reAthlumney*'^
Numerous judicial expressions from distinguished judges can be cited tothe same effect. We reproduce below just a few of them:—
"Retrospective laws are prima facie of questionable policy and contrary
to the general principle that legislation by which the conduct of mankind
CA Bandaranaike v. Weeraratne and Two Others (Wimalaratne, J.j 423
is to be regulated ought, when introduced for the first time, to deal withfuture acts and ought not to change the character of past transactionscarried on upon the faith of the then existing law. Accordingly the courtwill not ascribe retrospective force to new laws affecting rights unless byexpress words or necessary implication it appears that such was the inten-tion of the legislature.'-'
Willes J„ in Phillips v, Eyre —1^
"It is a general rule that where a statute is passed altering the law, unlessthe language is expressly to the contrary it is to be intended to apply to astate of facts coming into existence after the Act."
Cockburn C.J., in Q. v. Ipswich Union^
"There is an old and well known rule with regard to the consttuctionof enactments affecting rights …. it is that unless the language is clearto the contrary, an enactment affecting rights must be construedprospectively only, and not retrospectively so as to affect rights acquiredbefore the Act passed."
Sir Sailiol Brett M. R„ in Turnbull v. Foreman^^
"It seems to me that even in construing an Act which is to a certainextent retrospective, and in construing a section (S.5 of the MarriedWomen's Property Act, 1882) which is to a certain extent retrospective,we ought nevertheless to bear in mind that maxim (of Lord Coke) asapplicable whenever we reach the line at which the words of the sectioncease to be plain. That is a necessary and logical corollary of the generalproposition that you ought not to give a larger retrospective power to asection even in an Act which is to some extent tended to be retrospec-tive, than you can plainly see the Legislature meant."
Bowen L.J., in Reid v.
One problem is, what are the rights and obligaitons to which thepresumption applies? Attempts have been made to limit the doctrine topurely penal statutes which are cdincerned with crime and punishment. SeeA. L Goodhart in (1950) 66 L.Q.R., 314. But this appears to be to placetoo narrow a construction on the principle. Even in the United Stateseminent Judges have enunciated the same rule of construction as is acceptedin Englsih Courts. A reading of the law reports would show that the true ruleof both English and American'law is as stated by Maxwell :
"The rule has been applied chiefly in cases in which the statute inquestion, if it operated.retrospectively, would prejudicially affect vestedrights or the legality of past transactions or would impair contracts or
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would impose new duties or attach new disabilities in respect of past
transactions." p. 218.
The right impaired must be a "vested right" or an "acquired right" in thestrict sense in order to raise the presumption. In Starey v. Graham^*Channel J., defined a "right acquired" as "some specific right which in oneway or another has been acquired by an individual and which some personshave got and others not."
The Attorney-General argued that Law No. 7 of 1978 is a law relating toprocedure only, and that therefore the presumption against retrospectivitydoes not arise. He also submitted that this law does not have the effect ofimpairing any vested rights or of imposing any new disability. Thirdly, hecontended that in any event there are strong ciicumstances indicating thatthe Legislature intended the law to have retrospective operation.
The question arises as to what is a procedural Statute? The Attorney-General referred us to the various provisions of the law to show that it hasonly established machinery for the investigation into conduct of persons, aswell as administration of government departments and other bodies.Nowhere, he says, is there a statement of substantive law incorporated in thestatute.
Mr, H. L. de Silva arguing contra contended that Section 9, definingdisqualifications, is part of the substantive law, not found anywhere else inany other statute. Even in the Constitution of 1978 "civic disability" is inter-preted as having the same meaning as in Law No. 7 of 1978. He, therefore,submitted that this law deals both with substantive law and with procedure.
Scott, L.J., defined a procedural statute thus : "as a general rule whenone speaks of a procedural Act, one means it as an Act relating to proceedingsin litigation." (1939) 2 All E.R. 154 – 159.
"rules defining the remedy may be as much a part of the
substantive law as are those which define the right itself. No one wouldcall the abolition of capital punishment, for instance, a change in the lawof criminal procedure. The substantive part of the criminal law deals, notwith crime alone, but with punishment also. So in the civil law, the rules asto the measure of damages pertain to the substantive law, no less than thosedeclaring what damage is actionable; and rules determining the classes ofagreements which will be specifically enforced are as clearly substantiveas are those determining the agreements which will be enforced at all.To define procedure as concerned not with rights, but with remedies, isto confound the remedy with the process by which it is made available.
CA Bandaranaike v. Weeraratne and Two Others (Wimalaratne, J.)425
What then, is the true nature of the distinction? The law of proceduremay be defined as that branch of the law which governs the process oflitigation. It is the law of actions — jus quod ad actiones pertinet — usingthe term action in a wide sense to include all legal proceedings, civil orcriminal. All the residue is substantive law, and relates, not to theprocesses of litigation, but to its puiposes and subject matter."
Salmond, Jurisprudence — (11th Ed.) 503.
In Attorney-General v. Vernazza'^^ Vernazza who was a vexatiouslitigant was prohibited from continuing litigation instituted by him even priorto the Supreme Court of Judicature (Amendment) Act 1959 whichempowered the High Court tq make an order that any legal proceedingsinstituted by a vexatious litigant in any court before the making of the Oldershall not be continued by him without the leave of the High Court becausethe amending Act was only a procedural law. Lord Denning observed that"the new Act does not prevent him from continuing proceedings which it isproper for him to carry on. It only prevents him from continuing proceedings
which are an abuse of the process of the CourtThis is no interference
with a substantive right." at p. 100.
An Act which was held to be procedural as well as substantive is the Lawof Property Act, 1969, which came into force on 1.1.1970; by Section 11 ofthat Act, Section 37(1) of the Landlord and Tenant Act, 1954, was amendedto give the tenant a right to compensation notwithstanding the absence of anapplication to the Court for a new tenancy. The Act of 1969 did not statethat section 11 had any retrospective operation. The tenants application forcompensation made after 1.1.1970 was refused on the ground that landlordshad an indefeasible right to recover possession without payment of compen-sation when the time limit for giving a counter notice under the 1954 Act hadexpired before the 1969 Act came into force. The Act of 1969 was notmerely procedural, for it extinguished conditions which previously had to befulfilled as a pre requisite to the emergence of a right to compensation, andif it were given a retrospective operation it would burden landlords with aclaim to compensation which the tenants had lost. (1971) 1 All E.R. — 1.
We have no difficulty in reaching the conclusion that Law No. 7 of 1978is not a merely procedural latv. Section 9 deals with substantive rights. TheStatute, therefore, deals both with procedural as well as substantive rights.
Both Mr. H. L. de Silva and the Attorney-General took us through a largenumber of decided cases in supporty of their respective positions on thesecond question we have to decide, namely, whether the new law has theeffect of impairing any vested rights or attaching new disabilities in respect ofpast transactions. Cases on the construction of other Acts generally give verylittle help to the Court, but if there are any principles laid down by them, weought not to disregard them in construing a different Act. We need, therefore,
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only summarise the decisions in some of the more relevant cases cited beforeus.
In R. v. Inhabitants of St. Mary, Whitechapel^^ Denman, C.J., statedthat a statute "is not properly called a retrospective statute because a partof the requisites for its action is drawn from a time antecedent to its action."He said this in the couise of interpreting section 2 of the Poor Removal Act,1846, which provided that no woman residing in any parish with her husbandat the time of his death shall be removed from such parish for 12 calendaimonths next after his death, if she so long continue a widow. It was sought toremove a widow whose husband had died before the Act was passed. Theright to remove, it was argued, was a vested right which had accrued on thehusband's death. It was held otherwise, for the clause, though prospective asto removals, might be construed retrospectively as to the conditions underwhich removals should or should not be lawful. Although the Attorney-General relied much on this decision, we do not think it is of much help ininterpreting the present law by which disqualifications are sought to beattached not merely because certain conditions had been fulfilled prioito the law being enacted, but by virtue of past conduct, acts and omissionswhich may have been lawful at the time of their commission.
The case of Master Ladies Tailors Organisation v. Minsiter of Labour^
was concerned with an order made under a schedule to an enabling Actmaking provision for holiday remunerations to employees, calculated on thebasis of the normal wage to accrue from 1.5.1948, whereas the enabling Actprovided for the making of a wage regulation order as from such date as maybe specified in the order. The order came into force on 15.8.1949. It wasargued that a provision for the accrual of remunerations before the ordercame into force made the order retrospective, and hence ultra vires thestatute under which it was made. But Somerville L.J., held that the order wasgood. The fact that a prospective benefit is to be measured by antecedentfacts did not make the provision for the benefit retrospective. Relying on theobservation of Denman C.J., in the case referred to above, he said, "not everymatter which is retrospective 'in a sense' is retrospective in the sense in whichI have to apply the words in the present case." — at p. 528. It should bementioned that a different section of the enabling Act expressly authorisedorder of a retrospective character.
o
In West v. Gwynne^^the Court of Appeal had to construe section 3 ofthe Conveyancing Act, 1892, to determine whether the Act was of generalapplication or whether its operation should be confined to leases executedafter the commencement of the Act. The section provided that "in all leases"containing a covenant against assigning or undertaking without the license orcosent of the lessor, such covenant shall, unless the lease contains an expressprovision to the contrary, be deemed to be subject to a provisio to the effectthat no fine shall be payable for or in respect of such license or consent.It was held that the section was of general application applicable to all leases.
CA Bandaranaike v. Weeraratne and Two Others (Wimalaratne, J.)427
whether executed before or after the date the Act came into operation. Inthe first place the language of the section was perfectly general — the wordsused being "all leases." The other sections were also plainly general. Section 3did not amend or make void any existing contract; it only provided that inthe future, unless there is found an express provision authorising it, thereshall be no right to exact a fine. In the Chancery Division, Joyce J., thoughtthat the section did not take away any accrued right, nor was there any inter-ference with past transactions, nor did it effect anything which may aptly betermed a vested right at all. The exacting of the fine for giving consent maycorrectly be called a 'privilege.'
Another statute which was held "not in truth retrospective" is the Solici-tors (Amendment) Act, 1956. In Re A Solicitor's Clerk^17* a Solicitor's clerkhad been convicted in 1953 on four charges of larceny of property notbelonging to his employer or employer's clients. Section 16 of the Solicitor'sAct, 1941, did not disqualify him from being employed as a solicitor's clerkby virtue of such conviction. The amending Act of 1956 amended Section 16so as to include convictions for larceny irrespective of ownership. GoddardC.J., said "it enables an order to be made disqualifying a person from actingas a solicitor's clerk in the future, and what happened in the past is the causeor reason for the making of the order, but the order has no retrospectiveeffect." What is important to note is that the Solicitor's clerk had no claim orright in the strict sense of that term, in the sense that there was a co-relativeduty on the part of the employer to employ him, and there was, therefore,no impairing of any accrued right vested in the employee.
On the other side of the line is the case of Moon v. Dunden^®l By
section 18 of the Gaming Act, 1845, "all contracts or agreementsby
way of gaming or wagering, shall be null and void, and no suit shall be
brought or maintainedfor recovering any sum of money …. alleged
to be due on a wager" The question was whether its operation was
retrospective, so as to affect past transactions and existing suits. Holding thatthe law applied only to the future, despite the use of the word "maintained,"
Baron Parke observed "This rule (of Lord Coke)is deeply founded in
good sense and strict justice." — p. 43. Said Baron Alderson in the same case:"In construing statutes, the general rule, as it seems to me, which ought toguide us in their const/action, is that which has been stated. They are not tobe supposed to apply to the past but to a future state of circumstances." —p. 40.
• In Re School Board Election for the Parish of Pulborough'^®^ it was
held that section 32 of the Bankruptcy Act, 1833, which provided that"Where a debtor is adjudged bankrupt" he shall be subject to certain disquali-fications specified therein, had not a retrospective operation, and that there-fore the disqualifications created by it did not attach to a person made abankrupt before the passing of the Act.
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Repeating, once again, that cases such as those cited above are of littlehelp in construing our own Law No. 7 of 1978, except where they have laiddown any general principles, we shall consider how the Law "impairs vestedrights" or "attaches a new disability." By virtue of the Petitioner's election asa member of Parliament she acquired a right to sit and vote in Parliament.That gave her a right to participate in the proceedings in Parliament. Sheenjoyed all the privileges, immunities and powers of a member as are vested ina member by the Parliament (Powers & Privileges) Act (Cap. 383). They allform part of the general and public law of Ceylon, which have to be judiciallynoticed, in terms of Section 9 of the Act. All these rights, powers privilegesand immunities, are rights in the larger sense, and which Salmond defines as"advantages or benefits which are in any manner conferred upon a personby a rule of law." — Jurisprudence (11th Ed) 270. They are interestsprotected by the law, and are therefore "vested rights" in the true sense ofthat term. If the disqualification contemplated in section 9 of the Law isimposed on the Petitioner there could be no doubt that these vested rightswill be impaired.
A new disability is a disability which did not exist under the earlier law.The loss of civic rights for types of conduct such as are laid down in the newLaw was not imposed by any existing law. This law has the effect of attachingsuch a new disability. In terms of section 36 of the 1972 Constitution, theseat of a member of Parliament became vacant only if he became subject toany of the disqualifications stipulated in sections 68 and 70. Section 68 dealtwith the disqualification to be an elector; and section 70 dealt with thedisqualification from being a member of Parliament. None of these sectionscomtemplated, as a disqualification, any recommendation by a SpecialPresidential Commission of Inquiry. So then, a new disability, a disabilitywhich the law did not recognise earlier, may be attached to a person againstwhom a finding of guilt on the basis of past conduct is reached, and arecommendation is made by the Commission that such person should besubject to a civic disability by reason of such past conduct.
The Attorney-General's next argument was that the finding of theCommission, and its recommendation, can never impair any acquired rights orattach any new disability without Parliament passing the necessary resolutionunder Article 81 of the Constitution of 1978.
n
In terms of that Article Parliament may or may not pass the resolution.The Cabinet of Ministers has to approve the resolution; thereafter it has to beintroduced in Parliament by the Prime Minister, and it has to be passed bynot less than two thirds of the whole number of Members (including thosenot present) voting in its favour. It is only then that civic disabilities becomeattached. The recommendation of the Commission, by itself, does not imposedisability.
It was also his submission that the question as to whether Article 81
CA Bandaranaike v. Weeraratne and Two Others (Wimalaratne, J.)429
empowers Parliament to impose a disqualification by reason of any act doneor omitted to be done by any person before or after the commencement ofthe Constitution, is a question involving the interpretation of the Constitu-tion, which question has, by reason of Article 125, to be determined only bythe Supreme Court.
Mr. de Silva's answer to this argument is that the combined effect ofsection 9 of the Law and Article 81 of the Constitution is to place a newjeapordy, to create a new hazard, a new risk, and thus seriously impair thelegal rights vested in her by injuriously affecting those rights and weakeningthem. Section 9 is the first step in the process of attaching a new disability,whilst Article 81 is intended to be the final blow. Once a recommendation ismade under Section 9, the judicial process cannot be invoked to prevent thecomplete extinction of rights and the infliction of a new disability by themachinery provided in Article 81. Section 9 therefore, has not merelythreatened the extinction of the Petitioner's vested rights, but also threatenedthe creation of a new disability.
A finding of guilt and a recommendation for the imposition of civicdisabilities constitute conditions precedent for action by the executive andthe legislature under Article 81. If there is no finding of guilt and norecommendation under section 9 no action can be taken under Article 81. Asstated by Halsbury, prohibition will more readily issue when a report is anintegral and necessary part of a proceeding which will, when complete, haveprejudicial effects on the civil rights of individuals (4th Ed. Vol I p. 105 para83 note 9.) The Report of the Commission is a step in consequence of whichlegally enforceable rights may be extinguished, and new disabilities attached.We are, therefore, in agreement with Mr. de Silva on the effect of the Lawread with the Constitution, and we take the view that it not only "impairsvested rights" but also "attaches a new disability."
The third plank of the Attorney-General's argument, on the question ofone illustration. A Workers Compensation Act, first enacted in 1946, gave arebutted by the surrounding circumstances under which the law was enacted.The rule against retrospectivity is a presumption only, and like all presump-tions it can be rebutted. The presumption may be rebutted not only byexpress words but also by circumstances sufficiently strong to overcome it.Craies on Statute Law — (7th Ed.) fays thus: "if it is a necessary implicationfrom the language employed that the legislature intended a particular sectionto have a retrospective operation, the Courts will give it such an operation."
(p. 392). The Attorney-General drew our attention to the definition of a."public officer" in Section 22 to include "a person who was a public officerat any time during the period specified in the terms of reference of thecommission.” By the use of these words did the Legislature intend to includewithin the ambit of the warrant the conduct of those public officers whowere such before the date the law came into effect? Could not the words alsobe read as intended to apply to persons who were public officers during the
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period between the date of the new law and the date of the issue of thewarrant? Necessary intendment, in this context, has been said, in an Austra-lian case, to mean "that the force of the language in its surroundings carriessuch strength of impression in one direction, that to entertain the oppositeview appears wholly unreasonable." — 24 CLR 28 at 32. Bearing in mind alsothe words of Wright J., in re Athlumney^(above) that: "if the enactment isexpressed in language which is fairly capable of either interpretation it oughtto be interpreted as prospective only," we take the view that the languageused in section 22 does not lead to the necessary inference of an intentionthat the law should apply retrospectively.
Although Craies refers to the presumption being rebutted by necessaryimplication from the language employed, Maxwell gives instances of rebuttalby the circumstances of the case. The Sunshine Porcelain Potteries Case*2*** isone illustration. A workers Compensation Act, first enacted in 1946, gave aworkman a right to compensation if a medical practitioner certified that hewas suffering from a disease which was due to the nature of the employmentin which he was employed at any time prior to the date of the disablement.The workman left employment in 1938 and developed symptoms of a diseaseknown as silicosis in 1950. If the presumption against retrospectivity applied,then the workman would not have been entitled to compensation. The PrivyCouncil held, however, that the presumption had been displaced by thecircumstances. Silicosis was said to be a disease of slow onset and that a longperiod elapsed before the disease manifested itself. Therefore, said Lord Reid,(at page 938) "it cannot be supposed that the legislature intended that everyworker disabled by this disease after 1946 must porve that the disease wascontacted or that the damage was done to him after 1946, because thatwould involve there being a period of many years of uncertainly." We are inrespectful agreement with the view; the circumstances of that case necessarilyrebutted the presumption. It was necessary to do so to enable a workmanwho had contacted a serious disease to obtain statutory compensation. Butwhen the presumption is sought to be rebutted to inflict a new disability,different considerations must necessarily prevail.
The decisions dealing with the imposition retrospectively of hicher penal-ties for offences committed earlier, such as D.P.P. v. Lamb,*21* Buckman v.Button*22* and R. v. Oliver,*22* were decisions made during the War, onoccasions involving the safety of the State (see (1960) 3 All E.R. 97 at 100 -Lord Denning.) Even so , they have been subject to criticism by jurists —vide 59 L.R. 199.
The Attorney-General drew our attention to the fact that the Billpresented in Parliament by the Prime Minister on 30.1.1978 contains anendorsement, under Section 55(1) of the Constitution of 1972, that theCabinet of Ministers had decided that the Bill was urgent in the nationalinterest. It was passed in the Assembly and received the certificate of theSpeaker on 10.2.1978. Supposing, argued the Attorney-General, the President
CA Bandaranaike v. Weeraratne and Two Others (Wimalaratne, J.)431.
decided to issue a warrant under Section 2 on the next day, such a warrantwould clearly embrace inquiry into the conduct of public officers during aperiod prior to 10.2.1978, and not after. He invited us to draw the inferencefrom these circumstances that Parliament intended that the law shouldoperate, not merely for the future, but also retrospectively. The answer tothis argument, we think, is that the intention of the legislature cannot beinferred either from the view the Cabinet of Ministers had taken, or from anydecision the President may have taken to establish a Commission the very day
after the Law was passed. The intention of the legislature has to be gatheredwithout recourse to the views or conduct of the executive branch of theGovernment, for very often the legislature may intend something differentfrom what the executive desired. In this very Bill was a clause (clause 3) tothe effect that no prerogative writs shall be granted or issued against theCommission, but the legislature had deleted that clause.
The Attorney-General referred us also to the background in which thelegislation was enacted. The Commissions of Inquiry Act did not provide forany disqualification to flow from the findings of a Commission to set upunder that Act. The Reports of those Commissions had to be given effect byindependent Acts imposing disqualifications. The Attorney-General referredus to a statement made by the Prime Minister when introducing the Bill inParliament, that effect would be given to the recommendations of the SpecialPresidential Commissions of Inquiry by making necessary provision in thenew Constitution. Accordingly, Article 81 was incorporated in the Constitu-tion promulgated on 7.9.1978. Does this background to the legislationprovide us material sufficient to gather an intention on the part of the legisla-ture that the law should apply to events which had occured prior to the law?Should we from these circumstances, infer an intention to impose newdisqualifications for past wrong doing? We think not. Nor are we convincedthat there is precedent to be found in the warrant establishing what wasknown as the "M. W. H. de Silva Commission." Although the warrantempowered that Commission to inquire into allegations of bribery againstmembers of the Colombo Municipal Council made "at any time after2.12.1943", that is during a period before the Commission of Inquiry Act of1948 came into operation, the Colombo Municipal Council (Special Provi-sions) Act, No. 39 of 1949, which came into force on 5.8.1949 even beforethe Commission commenced its inquiry, empowered the Commission toinquire into allegations made during the period of the warrant. The Act of1949, therefore, by express words made the warrant retroactive.
In the absence of express words or even of language from which an inten-tion that the law should apply to past transactions could be gathered, thesurrounding circumstances must point distinctly and unmistakably to anintention that the law should have that effect. We are unable to say that thecombined effect of the language employed and the circumstances surrounding
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this legislation point distinctly and unmistakably to an intention that the lawshould have retrospective operation.
We may now summarise our conclusions on the first ground relied on bythe Petitioner. The Special Presidential Commissions of Inquiry Law does notcontain express provision that it is to operate retrospectively. The languageemployed does not lead to the necessary inference that the legislatureintended it to have a retrospective operation. Nor are the surroundingcircumstances sufficiently strong to rebut the presumption against retrospec-tivity. Applying the well known canons of interpretations, we have to takethe view that the Law is prospective only, meant to apply to future events,and conduct. The warrant empowering the Commission to inquiry into,report and make recommendations on the conduct of public officers andother persons prior to the date of the enactment of the Law is ultra vires theLaw. The Respondents would thus be acting unlawfully, and without legalauthority, in holding an inquiry and making recommendations against thePetitioner in respect of her conduct during the period specified in thewarrant. The Petitioner is, therefore, entitled to a mandate in the nature of aWrit of Prohibition directed against the Respondens.
Before concluding this part of the Judgment we think it apt to reproducethe words of Lord Simon, President of the Probate, Divorce and AdmiralityDivision, spoken when he had occasion to interpret certain provisions of theMatrimonial Proceedings and Property Act, 1970, as they succinctly apply tothe legislation under consideration :
"I hope that it will not be thought presumptous, if I suggest that it isdesirable that whenever possible a statute should indicate in express andunmistakable terms whether (and, if so, how far) or not it is intended tobe retrospective. The expenditure of much time and money would bethereby avoided."
Williams v. Williams^^
Although the above finding on the first ground relied on by the Petitionerwould suffice to dispose of this Application, we consider it necessary to dealwith the other grounds as well. As stated earlier, the Counsel for thePetitioner did not press the second grouno’, which has as its foundation theConstitutional guarantee embodied in Article 13(6) of the new Constitution.
The third ground on which the Petitioner seeks relief, as explained byCounsel at the hearing, does not challenge the constitutional validity of LawNo. 7 of 1978. Counsel's submission has been that in the application andinterpretation of that law regard should be had to the provisions of Section46 of the Ceylon (Constitution) Order-in-Council, 1946, and Section 92 ofthe Constitution of 1972, which were the basic laws during the periodspecified in the warrant.
CA . Bandaranaike v. Weeraratne and Two Others (Wimalaratne, J.)433
Section 46(1) of the Order-in-Council was in the following terms
"There shall be a Cabinet of Ministers who shall be appointed by theGovernor-General and who shall be charged with the general directionand control of the government of the Island and who shall be collectivelyresponsible to Parliament."
Section 92 of the 1972 Constitution was in the following terms
"(1) There shall be a Cabinet of Ministers charged with the direction andcontrol of the government of the Republic which shall becollectively responsible to the National State Assembly andanswerable to the National State Assembly on all matters for whichthey are responsible.
(2) Of the Ministers, one who shall be the Head of the Cabinet ofMinisters shall be the Prime Minister. The President shall appoint asPrime Minister the Member of the National State Assembly who, inthe President's opinion, is most likely to command the confidenceof the National State Assembly."
These provisions engrafted into our Constitutions the concept of"Collective Responsibility of the Cabinet," which in England yet rests onconvention alone. Cabinet Ministers were chosen by the Prime Minister fromthe leading members of the party in power, or in the case of a coalition, fromtwo or more parties forming the coalition. The Cabinet of Ministers wascharged with the direction and control of the Government, and was madecollectively responsible to, and answerable to. Parliament or the NationalState Assembly, on all matters for which they were responsible. The Cabinetwas, therefore, the directing body of the National policy, and it forwardedthat policy because of its majority in Parliament or the National StateAssembly.
At the concept of collective responsibility is a concept drawn from theEnglish Law, certain features of that concept as applicable to the Constitu-tions of 1946 and 1972 may be set out here. The Cabinet was to decide onthe policy it was to pursue. It was a policy formulating body and "when ithad decided on a policy, the appropriate department carried it out, either byadministrative action Within the law, or by drafting a Bill to be submitted toParliament so as to change the law." — Jennings on "Cabinet Government."
— (3rd Edition) p. 233.
The .Cabinet was also a general controlling body. It is clear that where areal political issue was involved, the Cabinet's authority had to be obtained.
It was not only the right of a Minister to consult the Cabinet on majormatters but also his duty to do so. The Cabinet took decisions by a majoritywhen it could not reach an agreed conclusion. The Cabinet deliberated in
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secret, and its proceedings were confidential. On the basis of Cabinet paperssubmitted and as a result of the discussions amongst its members, the Cabinetcame to'a conclusion. "Two things follow: first, the decision is carried out bydepartments; secondly, the Members of the Cabinet and the Ministers andJunior Ministers outside the Cabinet who accept the decision, may be calledupon to defend it." Jennings — p. 276.
"Collective responsibility" is formulated in the following terms : "for allthat passes in Cabinet (said Lord Salisbury in 1878) each member of it whodoes not resign is absolutely and irretrievably responsible, and has no rightafterwards to say that he agreed in one case to a compromise, while in
another he was persuaded by his colleaguesIt is only on the principle
that absolute responsibility is undertaken by every member of the Cabinet,who after a decision is arrived at remains a member of it, that the jointresponsibility of Ministers to Parliament can be upheld, and one of the mostessential principles of parliamentary responsibility established." — Jennings- p. 277.
A Minister who was not prepared to defend Cabinet decisions had, there-fore, to resign. If a Minister did not resign, then he was responsible. From theMinister's point of view, it meant only that he had to vote with the Govern-ment, speak in defence of it if the Prime Minister insisted, and that he couldnot afterwards reject criticism of his act, either in Parliament or in theconstituencies, on the ground that he did not agree with the decision. CabinetMinisters were expected not merely not to oppose a Cabinet decision, butalso to support it.
The concept of collective responsibility is different from the concept ofindividual responsibility of a Minister to Parliament. "The individual responsi-bility of a Minister to Parliament is more positive in character. Each in hisown sphere bears the burden of speaking and acting for the Government.When a Minister announces that Her Majesty's Government has decided thatthey are prepared to take a certain course of action, it does not follow thatthe decision had to be referred to the Cabinet. No doubt it would have beenon an important issue of policy; but if the decision related exclusively to thesphere for which the Minister is responsible, it must be at his discretion whomhe chooses to consult beforehand; it is in. the exercise of that discretion thathe may decide to act without previous reference to his Cabinet colleagues." —Wade & Phillips — Constitutional Law — (7th Edition) pages 86 and 87.
The submission of Counsel has been that in the interpretation andapplication of Law No. 7 of 1978 regard should be had to the provisions ofthe Constitutions of 1946 and 1972, for "If the language used in a statute isreasonably susceptible of two construtions, one rendering it constitutionaland the other not, the former must be adopted although the othetjs the morenatural." — Cooley on 'Constitutional Limitations.' p. 376.
CA Bandaranaike v. Weeraratne and Two Others (Wima/aratne, J.j 435
This, really, is an argument that should be adduced before theCommission which has been empowered to decide on the conduct of personsspecified in the warrant. It is not our function, at this stage, to decidewhether a particular act or omissio.n was conduct for which only one memberof the Cabinet was responsible, or whether the Cabinet of Ministers wasentirely responsible, or whether such conduct was justified under the basiclaws then prevailing.
The basis of challenge set out in grounds 4 and 5 of the Petition is thatthe warrant is inconsistent with certain provisions of the Constitution of1972, mainly sections 4, 5 and 106.
(a) In terms of section 4, the sovereignity of the people was exercisedby the National State Assembly of elected representatives of thePeople: and by section 5, the Naitonal State Assembly was theSupreme Instrument of State power. The Warrant, by authorisingthe Commissioners who were not members of the Assembly toinquire into her conduct as a member of the Assembly, infringed onsections 4 and 5 of the Constitution.
(b) In terms of section 106, the Cabinet of Ministers was responsible forthe appointment, transfer, dismissal and disciplinary control of stateofficers, and answerable only to the National State Assembly, andno institution administering justice had the power or jurisdiction toinquire into or in any manner call in question any decision of theCabinet. The Warrant, by authorising the Commissioners to reporton whether there have-been irregularities in respect of appointments,transfers etc., infringed on section 106 of the Constitution.
Whereas the basis of challenge set out in ground 1 is that the Warrant isultra vires the enabling law, the basis of challenge in grounds 4 and 5 is thatthe Warrant infringed certain provisions of the Constitution. Now, thewarrant derives its authority from the enabling Law. The enabling Law wasenacted by a sovereign Legislature by virtue of its legislative powers. TheSupremacy of the National State Assembly was enshrined in section 44 of theConstitution which ordained that "the legislative power is supreme" andincluded the power to repeal or amend the Constitution or to enact a newConstitution to replace it. There was thus no legislative measure that theAssembly could not have taken, if it had the majority necessary to amend theConstitution. Section 52 provided that the Assembly could enact a law whichin some particulars or respects was inconsistent with any provision of theConstitution without amending or repealing such provision, provided thatsuch law was passed by the majority required to amend the Constitution.
The Bill to enable the establishment of Special Presidential Commissionsof Inquiry was presented in the National State Assembly by the PrimeMinister on 30.1.1978. If the Bill or any provision of it was inconsistent with
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the provisions of Sections 4, 5 or 106 of the Constitutions, there was provi-sion in Section 54 to refer it to the Constitutional Court. The decision of theConstitutional Court was to be conclusive for all purposes. If the decision ofthat Court was that there was no inconsistency, it was open to the NationalState Assembly to pass it with a bare majority; if its decision was that therewas inconsistency, the Assembly yet had the power to pass it with therequired special majority. In either event, when it received the Speaker'sCertificate under Section 49, no institution administering justice had thepower or jurisdiction, by virtue of the prohibition contained in Section 48, toinquire into, pronounce upon or in any manner c^ll in question the validity ofsuch law.
This law, therefore, is a valid law even if it be in some way inconsistentwith certain provisions of that Constitution. It had gone through themachinery provided by the Constitution before it became law. Its validitycannot be questioned before us, even if the warrant issued under it infringeson certain provisions of that Constitution. Grounds 4 and 5 must thereforefail.
As the Petitioner has succeeded on the first ground set out in the Peti-tion, we make order issuing a Writ of Prohibition on the Respondents,prohibiting the Respondents from proceeding to inquire into acts andomissions of the Petitioner during the period commencing May 29th 1970and ending July 23rd 1977, from making findings of guilt in respect of thesaid acts and omissions, and from making recommendations under Section 9of Law No. 7 of 1978 as to whether the Petitioner should be subject to civicdisabilities by virtue of such findings of guilt.
The Petitioner will also be entitled to costs, which we fix at Rs. 1,500/-.
Before we conclude, we have to express our indebtedness to Counsel onboth sides, whose assistance was invaluable in the difficult task we have hadto perform.
Writ of Prohibition issued