137-NLR-NLR-V-58-M.-U.-R.-C.-MEERA-Petitioner-and-N.-Q.-DIAS-Controller-of-Immigration-and-Emi.pdf
.1957Present : H. N. G. Fernando, J.
M.U. Ji. C. MEERA, Petitioner, and X. Q. DIAS(Controller of Immigration and Emigration) el at.,Respondents
5'. G. 19S—-Application-for a Writ of Certiorari and for a Writ of
Mandamus
.Immigrants and Emigrants .-tc/, -Yo. 20 of 191S—Sections 10 and 11 (3) (b)—Effectthereon of Amending Act Xo. 1G of 1055, ss. 7, 20 (7)—Constitution Order inCouncil, 194G, s. 29 (2)—Interpretation Ordinance [Cap. 2), s. G (3) (b).
A non-citizon holding a temporary residence permit issued under theImmigrants and Emigrants Act Xo. 20 of 19-1S is precluded by section 10 ofthat Act, ns amended by Act Xo. 10 of 1055, from having it renewed or extended,although, prior to the date of the Amending Act, ho would liavo been entitledto tho renewal or extension of the permit under section II (3) (6) of tho principalAct. The amended section 10 of tho Immigrants and Emigrants Act is notultra vires of the legislature as being in conflict with tho provisions of section29 (2) of the Constitution Order in Council.
The right conferred by tho former section II (3) (6) of tho principal Act cannotproperly be deemed to bo a “right acquired” within tho-meaning of sectionG (3) (b) of the Interpretation Ordinance.
Applications' fora writ of certiorari and for a writ of tnandamus onthe Controller of Immigration and Emigration.
L. G. Wceramanlry, with 31. .S'. 31. Nazeem and N. It. 31. Dalmcatte,for the petitioner.
V. TenneLoon, Acting Deputy Solicitor-General, with-/. IT. Subasinghe,Crown Counsel, for the respondents.
Cur. adv. vult.
300.
1 (1920) 21 X. L
July 16, 1957. H. N. G. Ferxajjdo, J.—
The petitioner has applied for a writ of Mandamus directing theController of Immigration and Emigration to issue to the petitioner atemporary residence permit authorising the continued residence in Ceylonof the petitioner. A temporary residence permit had been issued .underthe Immigrants and Emigrants Act No. 20 of 194S to the petitioner fora period of two years commencing from 23rd February 1951, and there-after other such permits were issued to him, the last of which expiredon 19th February 1956. Before its expiration, the petitioner appliedto the Controller for an extension of his permit for a period of one yearand for present purposes I can assume that his application was eitherfor an extension of the then existing permit or for the issue of a newpermit and that the application on whichever basis it was madehas been refused by the Controller by his letter of 8th February 1956.
Section 10 of the Act of 1948 in effect prohibited the entry of a non-citizen into Ceylon unless he had in his possession a passporc and avisa or a residence permit. Section 14 then provided inter alia for theissue of permanent residence permits for indefinite periods and of tem-porary residence permits for definite periods exceeding six months, aswell as for extension of the period of temporary permits : sub-section3 (b) of the. same section declared that a temporarj'- residence permitshall not be refused in the case of British subjects who had been ordi-narily resident in Ceylon for at least five years immediately prior to theappointed date which was 1st November 1949, and the allegation of theapplicant that he was a person to whom that sub-scction applied hasnot been challenged. If, therefore, section 14 of the Act remained inits original form it would appear prima facie that the applicant mightwell have been entitled to the giant cither of a temporary residencepermit or of an extension of his last permit. But the question whetherhe would have been so entitled has become academic in consequence ofAct No. 16 of 1955 which amended the principal Act in certain veryimportant respects. The Amending Act replaced the original section 14and substituted for it a new section which provides only for the issue ofvisas to persons seeking to enter Ceylon and contains no provision ofany description corresponding to sub-section 3 (5) of the original section ;and under section 10 ns amended a visa is now the onty prescribed entr3rdocument. In the absence of provision in the existing lau* for the grant-or renewal of temporary residence permits, there is no statutory duty(to issue such a pcirnit) which the Controller can now be enjoinedto perform by writ of Mandamus.
It is argued for the petitioner, however, that the new section is ultravires the Legislature and that the former section is therefore still law.The ground of this argument is that in prohibiting the entry into Ceylonof persons who are not citizens except under the authority of visas grantedby the Controller, and in not providing at the same time, (as the formersub-section (3) (b) of section 14 did) a right upon persons of the des-cription there mentioned to documents entitling them to enter andreside in Ceylon, the present- section is void as being in conflict with theprovisions of section 29 of the Constitution. In support of this ground
of objection it is stated that tlic new section imposes «pon persons ofthe community described as the Indian community ” disabilities towliich members of other communities are not made liable, or else conferson members of other communities privileges not conferred on the membersof the Indian community.
Citizenship of Ceylon is regulated by the Citizenship Act No. 18 of 1948and by the Indian and Pakistani Residents (Citizenship) Act No. 3 of1949 which generally provide for citizenship by birth and by registrationrespectively. Those Acts have been held by their Lordships of thePrivy Council in O', <S’. X. Kodakan Pillai v. P. B. Mudanayake 1 to beinfra vires and the same decision also held to be infra vires the Parlia-mentary Elections Amendment Act No. 4S of 1949 which restricted thefranchise to citizens of Ceylon. While clearly declaring that whatis prohibited for the Legislature by section 29 of the Constitution cannotbe done even indirectly, the Privy Council held that, although standardssuch as those adopted in the case of the Citizenship Acts may operate toexclude the immigrant to a greater extent than they exclude other-people, they do not create disabilities on a community as such, and theirLordships expressed the opinion that “ the migratory habits of IndianTamils are facts directly relevant to their suitability as citizens of Ceylonand had nothing to do with them as a community.” The legislation whichwas the im mediate occasion of the case which went before the Privy Councilwas what is referred to in the judgment as the Franchise Act, but it wouldappear that the argument put forward was that that Act read togetherwith the Citizenship Acts was offensive to section 29 (2) of the Consti-tution ; and while their Lordships held that both enactments are intravires they did not consider it necessary to examine the Franchise Act-sejxiruiely with reference to section 29 for the reason (obvious in thecontext) tliat if both read together were not ultra vires, then each sepa-rately is infra vires. In the present application of course the petitioneris precluded from arguing that either or each of the Citizenship Acts isultra vires and he is restricted to the argument that section 14 of theImmigrants and Emigrants Act in its present (amended) form is ultravires.
This argument raises for decision the same question which TheirLordships asked themselves, namely “ what is the pith and substanc-eor the true character of the legislation ”, and the answer in my opinionis that the Legislature has controlled the entry into Ceylon of non-citizensby a system of visas, conferring on an executive authority the discretionto refuse an entry document. The discrimination if any, therefore,which ensues from the legislation is a discrimination between citizensand non-citizens, a feature not in any way rare in legislation of a similartype enacted by other Sovereign Legislatures. If it was proper for theLegislature of Ceylon to deny the franchise to non-citizens, it clearlyfollows that it was not improper for the same Legislature to deny rightsof entry to non-citizens. Indeed, in my opinion, the decision in KodakanPillai v. Mudanayake, that the Citizenship Acts properly laid down quali-fications for citizenship and do not offend against sect ion 29 of the Const i-’ (10-53) 54 X. L. R. 433.
lution, has the necessary consequence that the Legislature is free to con-fer rights or privileges exclusively on citizens or to impose restrictions ordisabilities applicable solely to lion-citizens. I would hold, therefore,that section 14 of the Immigrants and Emigrants Act is intra■ vires.
There is one point, however, to which I should refer although it wasnot argued by Counsel for the petitioner. Section 20 (1) of the amendingAct 16 of 1955 contains a saving provision for, inter alia, temporaryresidence permits issued before the coming into operation of the amendingAct and provides that any such permit in force immediately precedingthe date of operation “ shall continue in force after that date forthe duration of such permit and shall thereafter cease to have efFect. ”The section thereafter reads as follows:—". . . . and the pro-
visions of written law applicable to such permits before such date shallapply to such permits after that date during the period of the validityof such permits in like manner as they were applicable before that date. ”
Tf the provision last set. out above were to be read by itself it may be.possible to contend that the phrase thep>rovisions of writ ten lair applicable,to permits before, such date includes those parts of the original section 14of the Act which authorized the extension of temporary residence per-mits and declared that a temporary residence permit will not be refuser!to a resident British subject, or (to be specific) includes the former sub-section (2) and the former sub-section (3) (b) of section 14. But theprovision itself reserves the application of the former written law duringthe period of the validity of such perm it, and one has therefore to ascertainthe meaning of this latter phrase. In my opinion that meaning cannotbe determined without reference to the first part of the savings section.Bead as a whole, section 26 (1) first declares that a temporary residencepermit in foi’ce prior to the amending Act shall- continue in force for theduration of such permit and shall thereafter cease to have effect. Eachexisting permit is thus given validity for its duration, that is to say, forthe period specified in it at the time when the Amendment took effect.The subsequent provision which keeps alive the earlier written law isonly ancillary to the first part of the saving section, the intention clearly-being that once a permit is continued in force for a particular period itmay be necessary' to utilise or have recourse to the former written lawapplicable to such permits. But any construction of the latter partof the section which would authorise an extension of the duration of thepermit or confer a right to a new permit would in my opinion be quiteinconsistent with the substantive salving enactment which as alreadypointed out validates an existing -permit only for the duration thereinspecified and explicitly terminates its effect thereafter.
I have considered also whether the former section 14 (3) (b) of theprincipal Act conferred on the petitioner such a right as would, notwith-standing the subsequent repeal, be kept alive by section 6 (3) (/a) of theInterpretation Ordinance, which preserves anyr right acquired ”under repealed law. In construing, in the case of Abbot v. Minister ofLands l, a similar section which preserved " any right acquired or accrued ”under repealed law, the Privy- Council held that *' the mere right existing .
1 ISO.', A .C. 425.
in the members of the community or any class of them to take advantageof an enactment, without any act done by an individual-towards availinghimself of that right, cannot properly be deemed to be a ‘ right accrued’within the meaning of the enactment Numerous statutes conferrights in the same general sense as did section 14 (3) (b) of the principalAct, that is they declare members of the public or of a specified classlo be qualified to obtain or secure some advantage, privilege or permissionwhether from the Executive or a private party, and if the InterpretationEnactment does save such rights, then nearly every repeal would beineffective to alter prior law unless there were appended special provisionto bar the operation of section 6 (3) (b) of the Interpretation Ordinance.The decision of the Privy Council draws a distinction between what maybe termed an abstract right, and a specific right which is already beingpossessed or enjoyed at the time of a repeal or towards the securingof which some statutory step has been taken at that time. While there-fore section 6 (3) (6) may have assisted the petitioner if his applicationfor a permit had been pending at the time of the repeal of the formersection 14 of the Act of 194S, it affords him no advantage in the presentcontext.
The application for a writ of -Mandamus is refused with costs .which Ifix at Us. 210.
-Ipplicttlion refused.