014-NLR-NLR-V-70-M.-S.-KARIAPPER-Appellant-and-S.-S.-WIJESINGHA-and-another-Respondents.pdf
Kariapper v. Wijesinha
40
[Privy Council]
1967 Present : Lord Morris of Borth-y-Gest, Lord Hudson,Lord Pearee, Sir Douglas Menzies, and Sir Alfred NorthM. S. KARIAPPER, Appellant, and S. S. WIJESINHA and
another, Respondents
Privy Council Appeal No. 38 of 1966
S. C. 811966—Application for a Mandate in the nature of a Writof Mandamus under Section 42 of the Courts Ordinance
Constitutional law—Imposition of Civic Disabilities (Special Provisions) Act, No. 14of 1965, 88. 7, 10—Validity—“ Judicial pow&r ”—Usurpation of judicialpower by Parliament—Statute altering constitutional rights of particular persons■—Mode of ascertaining the true character of such enactment—Amendment orrepeal of a provision of the Constitution by inconsistent enactment—Validitythereof in the absence of an expressed intention to amend—Ceylon (Constitution)Order in Council, 1946, as. 13 (<3) (k), 24, 29 (I) and (4)—Mandamus to theClerk and Assistant Clerk of the House of Representatives—Inappropriatenessof such proceedings to question validity of the Act.
A Commission of Inquiry constituted under section 2 of the Commissions ofInquiry Act made reports in 1959 that allegations of bribery against six persons,who were members of the Legislature, had been proved. Consequently, on16th November 1965, the Imposition of Civic Disabilities (Special Provisions)Act was enacted imposing certain civic disabilities on those six persons, oneof whom was the appellant. Section 7 of the Act is in the following terms :—“ Where, on a day immediately prior to the relevant date, a person to whomthis Act applies was a Senator, or a member of the House of Representativesor of any local authority, his seat os a Senator or such member, as thecase may be, shall be deemed, for all purposes, to have become vacant onthat dote. ”
The appellant, who became a member of the House of Representatives on5th April 1965, made the present application for a writ of mandamus requiringthe respondents, who were the Clerk and the Assistant Clerk of the House ofRepresentatives, to recognise him as a member of Parliament and to pay himhis remuneration and allowances as a member. The validity of the Impositionof Civic Disabilities (Special Provisions) Act was challenged on the groundthat it was unconstitutional. It was not disputed that the appellant’s seatwas vacated upon a ground not to be found in section 24 of the Constitutionof Ceylon and that it was, to that extent, inconsistent with the provisions ofthe Constitution. Nor was it disputed that the Constitution embodies thedoctrine of the separation of legislative, executive and judicial power, at leastto the extent that it commits judicial power to the Courts to the exclusionof the Parliament. It was contended, however, that the Act, although it
LXX—?
1*H 8606—2,075 (11/67)
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SIR DOUGLAS MENZIES—Kariapper v. Wijesinha
purported to have been enacted as an amendment of the Constitution in themanner provided by section 29 (4) thereof, was not an effective amendmentfor the reasons (I) “ that the Act was not a law. Instead of being the exerciseof legislative power it was the usurpation of judicial power ”, and (2) “ thateven if the Act were an exercise of legislative power it cannot be regarded asan amendment of the Constitution because it does not, upon its face, havethat character
Held, (i) that the impugned Act is what it purports to be, a law made byParliament, and not a usurpation of judicial power. Its character is notthat of a bill of attainder or a bill of pains and penalties because it does notcondemn the appellant for any action, i.e., it contains no declaration of guiltof bribery or of any other Act. The disabilities which it imposes do not havethe character of punishment for guilt. It is the finding of the Commission ofInquiry that attracts the operation of the Act not any conduct of a personagainst whom the finding was made. Parliament did not make any findingsof its own against the appellant or any other of the six persons named in theSchedule. The principal purpose which the disabilities imposed by the Actserve is not to punish particular persons against whom the findings of briberywere made but to keep public life clean for the public good.
(ii) that an Act which is inconsistent with section 24 (1) of the Constitutionis not invalid merely because it does not provide expressly for the amendment orrepeal of a provision of the Constitution. The words “ amend or repeal ”in the earlier part of section 29 (4), read with section 29 (1), of the Constitutioncover and make valid an amendment or repeal by inconsistent enactment,provided that the special legislative procedure laid down in section 29 (4)is complied with.
Held further, that an application for the issue of a writ of Mandamus to theClerk and the Assistant Clerk of the House of Representatives was notappropriate procedure to question the validity of the impugned Act.
A.PPEAL from a judgment of the Supreme Court reported in(1966) 68 N. L. R. 529.
E. F. N. Ghratiaen, Q.G., with L. Blom-Cooper, M. I. Hamavi Haniffaand Mark Fernando, for the petitioner-appellant.
Ralph Millner, Q.C., with R. K. Handoo and H. L. de Silva, for therespondents.
Cur. adv. vult.
July 24, 1967.[.Delivered by Sm Douglas Menzies]—
This is an appeal from a judgment and decree of the Supreme Courtof Ceylon (Sansoni C.J. and G. P. A. Silva J.) refusing the appellant’sapplication for a mandate in the nature of a writ of mandamus requiringthe respondents who are the Clerk to the House of Representatives,Ceylon, and the Assistant Clerk to the Houee respectively to recognisethe appellant as a member of Parliament and to pay him his remunerationnd allowances as a member.
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51
The appellant was elected to the House of Representatives on 22ndMarch 1965 and was sworn as a member thereof on 5th April following.His term of office was for five years. He continued as a member of theHouse until 15th November 1965 and the principal question with whichthe Board is concerned is whether his seat was vacated by the cominginto operation on 16th November 1965 of the Imposition of CivicDisabilities (Special Provisions) Act hereinafter called “ the Act ”. Itwas, if the Act was within the competence of the Parliament of Ceylon,for, in the circumstances, the effect of section 7 was to vacate theappellant’s seat.
The unusual procedure which the appellant adopted to obtain a decisionupon the validity of the Act—which, not surprisingly, has turned out tobe a source of difficulty—was followed because, strangely enough, itseemed the only way to bring the question of the validity of the Actdirectly before the Supreme Court. Other proceedings seeking a declara-tion and an injunction in connection with related matters were, so theirLordships have been informed, commenced in the District Court andthose proceedings there lie dormant. With them, the Board is notconcerned although their Lordships do appreciate that their conclusionshere will, as Counsel for the appellant frankly stated, have a vital bearingon the proceedings in the District Court.
The Act, as its preamble indicates, followed, but at a distance offive years, the reports made in 1959 by a Commission of Inquiryconstituted under section 2 of the Commissions of Inquiry Act. ThisCommission, upon inquiry, found that allegations of bribery againstcertain persons, members of the Senate, House of Representatives orState Council of Ceylon, had been proved. The appellant wa3 one ofthose persons. The preamble to the Act recorded “ And whereas ithas become necessary to impose civic disabilities on the said personsconsequent on the findings of the said Commission ”. The Actconsequently imposed disabilities upon any person “ to whom the Actapplies ” and “ a person to whom this Act applies ” was defined to mean“ each person specified in the Schedule to this Act in regard to whom therelevant Commission in its Reports found that any allegation or allegationsof bribery had been proved ”. The Schedule named six persons includingthe appellant. The disabilities imposed by the Act extended todisqualification for seven years from registration as an elector and fromvoting at elections ; disqualification for seven years from being a candidatefor election to the House of Representatives or to any local authority ;disqualification for seven years from being elected or appointed as Senatoror member of the House of Representatives or a member of any localauthority or sitting and voting as such ; and disqualification for all timefrom being employed as a public servant. Section 7 of the Act is theone with which the Board is immediately concerned. It is in theseterms :
•
“ Where, on the day immediately prior to the relevant date, a
person to whom this Act applies was a Senator, or a member of the
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SIR DOUGLAS MENZIES—Kariapper v. Wijeainhc*
House of Representatives or of any local authority, his seat as aSenator or such member, as the case may be, shall be deemed, forall purposes, to have become vacant on that date. ”
If this section is valid the appellant’s application, wherein he assertedhis continued membership of the House of Representatives, was rightlyrefused by the Supreme Court.
The attack upon the validity of the Act asserted two propositionswith regard to it. First, that it was inconsistent with the Ceylon(Constitution) Order in Council 1946, i.e., the Constitution of Ceylon,and, secondly, that although it purported to have been enacted as anamendment of the Constitution in the manner provided by section 29 (4)thereof, it was not an effective amendment. Three reasons were advancedfor this second proposition :
That the Act was not a law. Instead of being the exercise oflegislative power it was the usurpation of judicial power.
That even if the Act were an exercise of legislative power it cannotbe regarded as an amendment of the Constitution because it doesnot, upon its face, have that character.
That if, upon its proper construction, the Act were both anassumption by the Parliament of judicial power and the exerciseof that power, the Act attempted too much for judicial powerwould need to be acquired by Parliament under an amendmentof the Constitution before it could be exercised by Parliament.This would require two Acts of Parliament.
On two important matters there was no controversy before the Board.
The appellant’s first proposition, that there was inconsistency betweenthe provisions of the Act and the Constitution of Ceylon, was not disputed.By section 24 of the Constitution provision is made for the vacation of theseat of a member of Parliament in specified circumstances which haveno relevance to the appellant. These include section 24 (1) (d) viz. “ if he(i.e., a member of Parliament) becomes subject to any of thedisqualifications mentioned in section 13 of this Order ”. Section 13 (3) (k)is as follows :
“ if during the preceding seven years he has been adjudged by acompetent court or by a Commission appointed with the approvalof the Senate or the House of Representatives or by a Committeethereof to have accepted a bribe or gratification offered with a viewto influencing his judgment as a Senator or as a Member ofParliament.”
The appellant was not adjudged to have accepted a bribe, etc., by acourt or by such a Commission. There is therefore no doubt that, if theAct is valid, the appellant’s seat was vacated upon a ground not to befound in the Constitution as it stood before the Act came into force.
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The second matter not in controversy before the Board was that theConstitution of Ceylon embodies the doctrine of the separation oflegislative, executive and judicial power, at least to the extent that itcommits judicial power to the Courts to the exclusion of the Parliament.This was decided by the Privy Council in Liyanage v. The Queen 1. TheirLordships after referring to a number of the provisions of the Constitutionof Ceylon said at pages 287 and 288 :
“ These provisions manifest an intention to secure in the judiciarya freedom from political, legislative and executive control. They arewholly appropriate in a Constitution which intends that judicialpower shall be vested only in the judicature. They would beinappropriate in a Constitution by which it was intended that judicialpower should be shared by the executive or the legislature. TheConstitution’s silence as to the vesting of judicial power is consistentwith its remaining, where it had lain for more than a century, in thehands of the judicature. It is not consistent with any intentionthat henceforth it should pass to or be shared by the executive or thelegislature.”
Later at page 289, after referring to the contention of the Solicitor-Generalthat the Supreme Court was wrong in finding in the Constitution ofCeylon a separation of powers rather than merely a separation offunction, their Lordships said :
c‘ … that decision was correct and there exists a separate power
in the judicature which under the Constitution as it stands cannotbe usurped or infringed by the executive or the legislature.”
The Board is now in a position to consider the first question for itsdetermination, viz., whether the Act is what it purports to be, a lawmade by Parliament ; or, is rather, an exercise of judicial power.
Counsel for both the appellant and the respondents were content toaccept, so far as it goes, the description of “ judicial power ” adopted bythe Judicial Committee in Shell Company of Australia Limited v. FederalCommission of Taxation2 in a passage referring to the Constitution ofthe Commonwealth of Australia :
“What is f judicial power’? Their Lordships are of opinion thatone of the best definitions is that given by Griffith C.J. in IIuddartyParker & Co. v. Moorehead 8 C. L. R. 330, 357, where he says e I amof opinion that the words “ judicial power ” as used in section 71of the Constitution mean the power which every sovereign authoritymust of necessity have to decide controversies between its subjects,or between itself and its subjects, whether the rights relate to life,liberty or property. The exercise of this power does not begin untilsome tribunal which has power to give a binding and authoritativedecision (whether subject to appeal or not) is called upon to takeaction. ’ ”
1 (1967) A. G. 259 ; 68 N. L. R. 265.9 (1931) A. C. 275 at pages 295 and 296*
—H 8506(11/67
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This description was adopted, however, in a case where the question atissue was whether or not a Taxation Board of Review was exercisingjudicial power in the sense of ascertaining and applying an establishedstandard of liability and it is not so pertinent in a case such as thiswhere the problem is rather to ascertain the true character of anenactment which is in form legislation altering legal rights by itp ownforce. This observation does however point to what appears to theirLordships as the appellant’s fundamental difficulty, i.e., that what isclaimed to be a judicial determination is in form legislation altering thelaw as it stood. Counsel for the appellant have naturally fastened uponcertain observations in which bills of attainder and bills of pains andpenalties have been referred to as “ an exercise of the judicial power ofParliament in a legislative form ”, e.g., Halsbury’s Laws of England,3rd Ed., Vol. 28, page 398, and have sought to establish that the character•of the Act is that of a bill of attainder or a bill of pains and penalties.Reference was also made to observations in Liyanage v. The Queen(supra) at page 291 to describe the Acts there successfully impugned viz. :
“ One might fairly apply to these Acts the words of Chase J., inthe Supreme Court of the United States in Colder v. Bull :
‘ These acts were legislative judgments ; and an exercise ofjudicial power. ’
Blackstone in his Commentaries said :
* Therefore a particular act of the legislature to confiscate thegoods of Titius, or to attaint him of high treason, does not enter intothe idea of a municipal law ; for the operation of this act is spentupon Titius only and has no relation to the community in general ;it is rather a sentence than a law. ’
If such Acts as these were valid the judicial power could be whollyabsorbed by the legislature and taken out of the hands of the judges. ”
Moreover by reference to decisions of the Supreme Court of the UnitedStates of America it was sought to support the conclusion that the Actwould, in the United States of America, fall within the category of anact of attainder.
It is unwise in the sphere of constitutional law to go beyond what isnecessary for the determination of the case in hand and because theBoard is of the opinion that the character of the Act is not that of anact of attainder or a bill of pains and penalties it is not necessary hereto attribute a particular character to what has, as has already been seen,been described an ” exercise of the judicial power of Parliament in alegislative form ”. The Act is not an act of attainder or a bill of painsand penalties because it does not condemn the appellant for any action,i.e., it contains no declaration of guilt, and because the disabilities whicht imposes have not the character of punishment for guilt.
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At this point it is convenient to say a little more about the UnitedStates cases upon which Mr. Gratiaen so greatly relied. They were allcases involving the construction and application of Article I, Section 9,clause 3 or Article I, Section 10 of the Constitution of the United Statesof America which together prohibit Congress or a State from passing abill of attainder or ex post facto law. As early in the constitutionalhistory of the United States as 1866 it was decided that “ a bill ofattainder is a legislative act which inflicts punishment without a judicialtrial. If the punishment be less than death, the act is termed a bill ofpains and penalties. Within the meaning of the Constitution, bills ofattainder include bills of pains and penalties. ” Cummings v. The Stateof Missouri l. In the same case the Court described such laws asfollows :
“ In these cases the legislative body, in addition to its legitimatefunctions, exercises the powers and office of judge ; it assumes, in the ,language of the text-books, judicial magistracy ; it pronounces uponthe guilt of the party, without any of the forms of safeguards oftrial; it determines the sufficiency of the proofs produced, whetherconformable to the rules of evidence or otherwise ; and it fixes thedegree of punishment in accordance with its own notions of theenormity of the offence. ”
Mr. Gratiaen seizing upon the description of the enactment of the billof attainder as an assumption of judicial magistracy went so far as tosubmit that Article I, Section 9, clause 3 of the Constitution of theUnited States of America was plainly superfluous because the separationof powers, so clearly embodied in that Constitution, carried with it as anecessary consequence the limitation that Congress could not pass a lawtruly described as an exercise of judicial magistracy. He went on tocontend that what was to be found by express prohibition in theConstitution of the United States was, upon the authority of the Americandecisions, to be found by implication in the Constitution of Ceylon. TheirLordships, however, would express no opinion upon the hypotheticalquestion of the American law, i.e., whether or not the Congress of theUnited States could, in the absence of Article 1, Section 9, clause 3 of theConstitution, pass an Act of attainder, and the Board is not preparedto base any reasoning in relation to the powers of the Parliament ofCeylon upon the assumption that Congress could not do so.
In considering the argument that the Act is in truth a bill of attainderor a bill of pains and penalties their Lordships have, of course, beengreatly assisted by the judgments of the justices of the Supreme Courtto which their attention has been drawn and they have found particularlyvaluable guidance in the judgment of Frankfurter J. in the UnitedStates v. Lovett 2 notwithstanding that in the result that learned judgewas one of the minority. Frankfurter J. said <e All bills of attainderspecify the offence for w^iich the attained person was deemed guilty
1 IV Wall. 277 at page 323.
» 328 U. S. 303.
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SIR DOUGLAS MENZIES—Kariapper v. Wijesinha m
and for which punishment was imposed”. In rejecting the contentionthat the Act thereunder consideration was a bill of attainder His Honoursaid “ no offense is specified and no declaration of guilt is made.
Not only does section 304 lack the essential declaration of guilt. Itlikewise lacks the imposition of punishment in the sense appropriatefor bills of attainder. … Punishment presupposes an offense, not
necessarily an act previously declared criminal, but an act for whichretribution is exacted. The fact that harm is inflicted by governmentalauthority does not make it punishment. Figuratively speaking alldiscomforting action may be deemed punishment because it deprives ofwhat otherwise would be enjoyed. But there may be reasons otherthan punitive for such deprivation. A man may be forbidden to practicemedicine because he has been convicted of a felony. .. .or because
he is no longer qualified.. ‘ The deprivation of any rights, civil
or political, previously enjoyed, may be punishment, the circumstancesattending and the causes of the deprivation determining this fact”’.Cummings v. State of Missouri, 4 Wall. 277, 320, 18 L. Ed. 356, pages 322,323 and 324.
The two elements found by Frankfurter J. to be absent from the lawunder consideration in United States v. Lovett (supra) the Board find tobe absent from the Act. First, it contains no declaration of guilt of briberyor of any other act. As has already been observed it applies to “ eachperson specified in the Schedule of this Act in regard to whom the relevantCommission in its Reports found that any allegation or allegations ofbribery had been proved.” It is the Commission’s finding that attractsthe operation of the Act not any conduct of a person against whom thefinding was made. Parliament did not make any finding of its ownagainst the appellant or any other of the seven persons named in theSchedule. The question of the guilt or innocence of the persons namedin the Schedule does not arise for the purpose of the Act and the Acthas no bearing upon the determination of such a question should itever arise in any circumstances. Secondly, the disabilities imposed bythe Act are not, in all the circumstances, punishment. It is, of course,important that the disabilities are not linked with conduct for whichthey might be regarded as punishment but more importantly the principalpurpose which they serve is clearly enough not to punish but to keeppublic life clean for the public good. Their Lordships have alreadysummarised the disabilities imposed by the Act and what has just beensaid applies to all disabilities so imposed. The particular task of theBoard is, however, to decide whether the law vacating the appellant’sseat is a valid law and in their Lordships’ opinion it would be wrongto describe that law as one for the punishment of the member whoseseat is vacated. Reference has already been made to earlier legislationvacating the seats of persons convicted of bribery by a Court or foundby certain Commissions to have been guilty of bribery. The Act is alaw of the same character as this legislation notwithstanding that itoperates in respect of particular persons against whom findings of bribery
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have been made. Unforeseen cases may always arise calling for thespecial exercise of Parliament’s power to protect itself. Thus if amember of Parliament were to act in a way not previously proscribedbut obviously unfitting him to remain in Parliament a new law vacatinghis seat would not, in essence, be a law punishing him for his conduct.The case now under consideration is, of course, substantially differentfrom the case of The Queen v. Richards e.p. Fitzpatrick and Brcnone1-but it may be observed that in a judgment, approved by the JudicialCommittee, Dixon C.J. speaking for the High Court of Australia did•emphasise the tendency to treat the powers and privileges attached tothe House of Commons for its own protection as incidents of thelegislative function. His Honour said :
“ It should be added to that very simple statement that throughoutthe course of English history there has been a tendency to regardthose powers as not strictly judicial but as belonging to the legislature,^rather as something essential or, at any rate, proper for its protection.This is not the occasion to discuss the historical grounds upon whichthese powers and privileges attached to the House of Commons. It issufficient to say that they were regarded by many authorities asproper incidents of the legislative function, notwithstanding thefact that considered more theoretically—perhaps one might even say,scientifically—they belong to the judicial sphere.”
It was no doubt the recognition of this tendency that influenced<3. P. A. Silva J. to say :
“ a Court will be slow to invalidate any law passed by the Parliamentimposing certain disabilities or disqualifications on Members ofParliament in view of the power the Parliament has to control itsown proceedings and impose its own discipline.”
Speaking generally, however, their Lordships would observe that it isnot readily to be assumed that disciplinary action, however much it mayhurt the individual concerned, is personal and retributive rather thancorporate and self-respecting. The distinction between discipline andpunishment is one which the High Court of Australia has drawn recentlyin The Queen v. White and Others e.p. Byrnes2. The question waswhether the chief officer of a Commonwealth Department who in theexercise of powers conferred by section 55 of the Public Service Actfound an officer of his department guilty of an “ offence ” in refusingto have obeyed a lawful order and imposed a fine therefore exercised“ judicial power ”. Section 55 made wilful disobedience to a lawful orderan “ offence ” for which punishment was provided. The Court havingobserved the difficulty discovered in the case was apparent rather thanreal and arose from the choice of language that had been made said atpage 670 :
“ Section 55, in crating so-called “ offences ” and providing fortheir “ punishment ”, does no more than define what is misconduct1 92 C. L. It. 157.* 109 G. L. R. 665.
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on the part of a public servant warranting disciplinary action onbehalf of the Commonwealth and the disciplinary penalties that maybe imposed or recommended for such misconduct ; it does not createoffences punishable as crimes.”
For the foregoing reasons their Lordships therefore reject the argumentthat the Act is legislation of the same character as an act of attainderor a bill of pains and penalties.
Their Lordships however going beyond this merely negative conclusion*are of opinion that the Act is an exercise of legislative power and not theusurpation of judicial power. The Act is an Act of Parliament purportingto change the law and providing in terms that in the event of inconsistencywith existing law the Act shall prevail. Section 10. In determiningwhether the Act should be regarded as a usurpation of judicial powerweight must be given to the consideration that it is in form legislationand that it is enacted :
“by the Queen’s Most Excellent Majesty by and with the
advice and consent of the Senate and the House of Representatives ofCeylon in this present Parliament assembled, and by the authorityof the same”
The Act is subject to the ordinary incidents of legislation, viz., it canbe repealed or amended. Furthermore, for the reasons already stated theAct does not declare guilt or impose punishment. Moreover, althoughthe Act has a strictly limited operation in that it applies only to “ each
person specified in the Schedulein regard to whom the relevant
Commission in its Reports found that any allegation or allegations ofbribery had been proved ”, its terms show that reference to the Reports—which do not form part of the Act—will or may be necessary in itsapplication. It does not speak like a court order. Finally, although theoperation of the Act is made to depend upon past events that operationis prospective for the disabilities are imposed from the date of itscommencement for the periods defined.
Having come to the conclusion that the Act is legislative in characterit now becomes necessary to consider the contention that beinginconsistent with the provisions of the Constitution it is invalid becauseit was not enacted in accordance with the requirements of section 29 (4)of the Constitution. Section 29 (1) and (4) of the Constitution are asfollows :
“ (1) Subject to the provisions of this Order, Parliament shahhave power to make laws for the peace, order and good governmentof the Island. ”
“ (4) In the exercise of its powers under this section, Parliamentmay amend or repeal any of the provisions of this Order, or of anyother Order of Her Majesty in Council in its^application to the Island :
Provided that no Bill for the amendment or repeal of any of theprovisions of this Order shall be presented for the Royal Assent
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5ft
unless it had endorsed on it a certificate under the hand of the Speakerthat the number of votes cast in favour thereof in the House ofRepresentatives amounted to not less than two-thirds of the wholenumber of Members of the House (including those not present).”
Here it may be observed that subsections (2) and (3) forbidding lawsinterfering with religious freedom and rendering void any laws incontravention of this prohibition do not require consideration.
The bill for the Act when presented for the Royal Assent did haveendorsed upon it the certificate of the Speaker required by the provisoto section 29 (4) and that certificate was in accordance with actualvoting in the House. The critical question is, therefore, whethersomething more was required to bring the Act within the power ofParliament conferred by section 29 (1) and (4). Counsel for theappellant argued that there was and that the Act, being inconsistentwith the Constitution as it stood, was invalid for the reason that it was*not in form an express amendment of the Constitution.
As long ago as 1920 the Judicial Committee in McCawley v. The King 1decided that an uncontrolled constitution could like any other Actof Parliament be altered simply by the enactment of inconsistentlegislation. Their Lordships’ statement of the proposition which wasrejected was as follows :
“ The constitution of Queensland is a controlled constitution. Itcannot, therefore, be altered merely by enacting legislation inconsistentwith its articles. It can only be altered by an Act which in plainand unmistakable language refers to it; asserts the intention of theLegislature to alter it; and consequently gives effect to that intentionby its operative provisions. ”
The reason for the rejection of this proposition was thus stated :
“ The Legislature of Queensland is the master of its own household,except in so far as its powers have in special cases been restricted.No such restriction has been established, and none in fact exists, insuch a case as is raised in the issues now under appeal. ”
The power of the Parliament of Ceylon to amend or repeal the provisionsof the Constitution is restricted in the manner provided by section 29.There is, therefore, a most material distinction between the Constitutionof Ceylon and that of Queensland which is made apparent by thefollowing citations from the judgment of Lord Birkenhead L.C. HisLordship said :
“ The first point which requires consideration depends upon the-distinction between constitutions the terms of which may be modifiedor repealed with no other formality than is necessary in the case ofother legislation, and constitutions which can only be altered withsome special formality,*and in some cases by a specially convened!assembly.
(1920) A. O. 691.
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Many different terms have been employed in the text-books to■distinguish these two contrasted forms of constitution. Their specialqualities may perhaps be exhibited as clearly by calling the one acontrolled and the other an uncontrolled constitution as by any othernomenclature. ’:
Nevertheless, notwithstanding the distinction that renders the decisionin McCawley’s Case inapplicable here their Lordships do rely upon apassage from the judgment of the Lord Chancellor. It is as follows :
. Narrow constructions were placed by colonial judges uponthe instruments creating constitutions in colonial Legislatures. Causes■of friction multiplied, and soon a conflict emerged, analogous tothat which is the subject of discussion to-day, between those whoinsisted that the constitutions conceded to the colonies could bemodified as easily as any other Act of Parliament, and those whoaffirmed that the statute defining such constitutions was f fundamental ’or f organic ’ and that therefore the constitution was controlled. Theseeontroversies became extremely grave, and were reflected in anopinion, cited in the course of the argument and given in 1864 by thelaw officers of the day, Sir Roundel! Palmer and Sir Robert Collier.These distinguished lawyers were of opinion, and the Board concursin their view, that when legislation within the British Empire whichis inconsistent with constitutional instruments of the kind underconsideration comes for examination before the Courts, it is unnecessaryto consider whether those who were responsible for the later Actintended to repeal or modify the earlier Act. If they passed legislationwhich was inconsistent with the earlier Act, it must be presumed thatthey were aware of, and authorized such inconsistency.”
Although this passage has no bearing upon the ultimate question here,i.e., whether the manner and form required by section 29 for a constitu-tional amendment were actually observed, it has an important bearingupon the question to which a good deal of argument was addressed,namely, whether an inconsistent law should be regarded as an amendmentof a controlled constitution in the absence of an expressed intention toamend. The expression of opinion of the law officers concurred withby the Board is that, as a general rule, an inconsistent law amends. Thisis, of course, but an instance of the fundamental principle that it is fromits operation that the intention of a statute is to be gathered. As thelaw officers said in the opinion already referred to :
‘c * If the colonial Registration Act was ultra vires of the Legislature■of South Australia, it can only be so on the ground that it altered theelectoral law contained in the Constitutional Act, No. 2 of 1855.Assuming this to have been its effect, we cannot accede to theargument, which seems to have found aqpeptance with two SouthAustralian Judges, that it was not passed £t with the object ” ofaltering the Constitution of the Legislature. It must be presumed
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that a legislative body intends that which is the necessary effect of itsenactments ; the object, the purpose and the intention of the enactment,is the same ; it need not be expressed in any recital or preamble ; andit is not (as we conceive) competent for any Court judicially to ascribeany part of the legal operation of a Statute to inadvertence.’
In the Bribery Commissioner v. Ranasinghe 1 the Judicial Committeehad occasion to consider McCawley's case with reference to theConstitution of Ceylon and explained the essential difference betweenMcCawley's case and the case then under consideration. Lord Pearce:giving the judgment of the Board said :
“ It is possible now to state summarily what is the essential differencebetween the McCawley case and this case. There the legislature,having full power to make laws by a majority, except upon one subjectthat was not in question, passed a law which conflicted with one of the .existing terms of its Constitution Act. It was held that this was validlegislation, since it must be treated as pro tanto an alteration of theConstitution, which was neither fundamental in the sense of beingbeyond change nor so constructed as to require any special legislativeprocess to pass upon the topic dealt with. In the present case, onthe other hand, the legislature has purported to pass a law which,being in conflict with section 55 of the Order in Council, must betreated, if it is to be valid, as an implied alteration of the Constitutionalprovisions about the appointment of judicial officers. Since suchalterations, even if express, can only be made by laws which complywith the special legislative procedure laid down in section 29 (4), the• Ceylon legislature has not got the general power to legislate so as toamend its Constitution by ordinary majority resolutions, suoh as theQueensland legislature was found to have under section 2 of its Consti-tution Act, but is rather in the position, for effecting such amendments,that that legislature was held to be in by virtue of its section 9, namely,compelled to operate a special procedure in order to achieve the desiredresult.”
Accordingly, therefore, upon general principles and with the guidance■of earlier authority their Lordships have come to the conclusion that theAct, inconsistent as it is with the Constitution of Ceylon, is to be regardedas amending that Constitution unless there is to be found in theconstitutional restrictions imposed on the power of amendment someprovision which denies it constitutional effect. This brings the Boardto the actual terms of section 29 (1) and (4).
Section 29 (1) confers full legislative power upon Parliament subjectonly " to the provisions of this Order ”,i.e., the Constitution.
. Subsection (4) indicates th£t the power conferred by subsection (1) extends
1 (1965) A. O. 172 ; 66 N. L. R. 73.
62SIR DOUGLAS MENZIES—Kariapper v. Wijn8inha%
to amending or repealing “ any of the provisions of this Order”. Theexercise of this power is however restricted by the proviso. As hasalready been explained, their Lordships do read the words “ amend orrepeal ” in the earlier part of section 29 (4) as covering an amendment orrepeal by inconsistent enactment. Indeed were these words e: amend orrepeal ” not to be regarded as covering an alteration by implication itmight be that a law effecting such an alteration could be enacted undersection 29 (1) without any restriction arising from subsection (4). TheirLordships however do not so read the statutory provisions and have nodoubt that the Parliament of Ceylon has not uncontrolled power to passlaws inconsistent with the Constitution. Apart from the proviso tosubsection (4) therefore the Board has found no reason for not construingthe words “ amend or repeal ” in the earlier part of section 29 (4) asextending to amendment or repeal by inconsistent law. Attention was,however, directed to the words in the proviso “ Bill for the amendmentor repeal ” and it was argued that only a hill which provided expressly forthe amendment or repeal of some provision of the Order would fallwithin these words. Their Lordships would find it difficult to restrict theplain words of the earlier part of the subsection by reference to anambiguity in the proviso, if one were to be found, but they find noambiguity and they reject the limitation which it has been sought tointroduce into the proviso. A bill which, if it becomes an act, doesamend or repeal some provision of the Order is a bill ‘c for the amendmentor repeal of a provision of the Order It would have been inexact torefer in the proviso to a bill to amend or repeal a provision of the Order,but a bill which when passed becomes an amending Act falls exactlywithin the description under consideration. The bill which became theAct was a bill for the amendment of section 24 of the Constitution simplybecause its terms were inconsistent with that section. It is the operationthat the bill will have upon becoming law which gives it its constitutionalcharacter not any particular label which may be given to it. A billdescribed as one for the amendment of the Constitution which containedno operative provision to amend the Constitution would not require theprescribed formalities to become a valid law whereas a bill which upon itspassing into law would, if valid, alter the Constitution would not be validwithout compliance with those formalities. In his judgment in theSupreme Court Sansoni C.J. quoted aptly from the judgment of Isaacsand Richards JJ. in McCawley’s case—the minority judgment in the HighCourt approved by the Privy Council—as follows :“ The effect of the
repealing Act must therefore depend on what it does, and not on thelabel it affixes to itself. ” See 26 C. L. R. at page 63. Their Lordshipsalso agree with Silva J. when he said “I do not think that when theproviso to section 29 (4) proceeded to set out the manner of presentationof a constitutional amendment it also intended to prescribe a particularform to be present on the face of it
DOUGLAS MENZLES—Kariapper v. Wijesinha03
In the course of argument a good deal was made of the doubts andcomplexities that must follow if the Constitution can be amended by lawswhich do not, as it were, show their colours, and the point was forciblyemphasized by reference to the very law under consideration. The Boardis thoroughly aware of the difficulties that are likely to result from alteringthe Constitution except by laws which plainly and expressly amend it withparticularity. Considerations of this sort, powerful as they ought to bewith the draftsman, cannot in a court of law weigh against the considera-tions which have brought the Board to its conclusions that a bill, whichupon its passage into law would amend the Constitution, is a bill for itsamendment. In association with the considerations to which referencehas just been made attention was drawn to section 10 of the Act. Thissection is far from clear and their Lordships have not felt able to baseany affirmative reasoning upon it. All that can be gathered from itis that Parliament was aware that the Act might be regarded as amendingthe Constitution in some particulars. The introduction of such aprovision does little to obviate the complexities to which legislation suchas the Act must inevitably give rise in the future if and when it becomesnecessary to set out the Constitution as amended.
Finally upon the merits of the case their Lordships would observe thatin view of their conclusion that the Act is a law and not an exercise ofjudicial power it has not been necessary to consider the question, whichwas fully argued on both sides, whether Parliament can by a law passedin accordance with the proviso to section 29 (4) both assume judicialpower and exercise it in the one law.
Their Lordships have thought it proper to deal with the appeal uponits merits before considering whether the procedure actually adopted tobring the question of the validity of the Act before the Supreme Court,i.e., an application for a mandate in the nature of a writ of mandamus tothe Clerk and the Assistant Clerk of the House of Representatives, wasappropriate. In the Board’s opinion it was not. In the end it waspractically conceded by Mr. Gratiaen that it had not been shown that therespondent or either of them were under a duty to the appellant to payhim his parliamentary salary and allowances even if he continued to be amember of Parliament. Furthermore in their Lordships’ opinion it wasnot shown that the respondents or either of them owed any duty to theappellant to “ recognise ” him as a member of Parliament even if asufficiently precise meaning to found mandamus could be accorded to thevague word “ recognise The duties upon which reliance was placedarose under the Standing Orders of the House of Representatives andalthough they were no doubt duties in respect of members of the Housethey were duties owed to the House itself or to the Crown as the employer
64
SIRIMANIS, J.— WijMundera v. Kunjimoosa d> Qo.
of the respondents. On the question of the competence of the proceedingsin the Supreme Court their Lordships have therefore come to the sameconclusion as did Sansoni C. J.
Their Lordships will therefore humbly advise Her Majesty that theappeal should be dismissed. The appellant must pay the costs of theappeal.
Appeal dismissed.