THE QUEEN v. M. E. A. FERNANDO

096-NLR-NLR-V-61-THE-QUEEN-v.-M.-E.-A.-FERNANDO.pdf


The Queen v. (l)Fernando and (2)Caralis
395
[In the Count of Criminal Appeal]
1959 Present.: B assay ake, C.J. (President), T. S. Fernando, J.,
and Sinnetamby, I.
THE QUEEN v. M. E. A. FERNANDOAppeal No. 123 of 1959, with Application No. 154S. C. 19—M.G. Panadura, 54733
1959 Present: Basnayake, C.J. (President), T. S. Fernando, J.,
and Sinnetamby, J.
THE QUEEN v. P. H. CAROLIS
Appeal No. 124 of 1959, with Application No. 155
S. C. 16—M. C. Dambulla, 9172
Murder—Sentence of death—Legality—Penal Code, s. 296—Effect of Regulation ofOctober 2, 1959, made under s. 5 of the Public Security Ordinance—Suspensionof Capital Punishment Act, No. 20 of 1958—Suspension of Capital Punishment(Repeal) Act, No. 25 of 1959—Interpretation Ordinance, s. 6—Differencebetween the expressions “ retrospective ” and “ retroactive ”.
By the Regulation made under section 5 of the Public Security Ordinanceand published in the Gazette on October 2, 1959—
“ During the continuance in force of this Regulation the operation of theSuspension of Capital Act, No. 20 of 1958, shall be suspended.”
Held, that the Regulation cannot be construed, as being retroactive. “ Itmust be construed as applying only to offences of murder committed after itcame into operation and the suspension of the Suspension of Capital PunishmentAct operates as a suspension only as respects those -who committed minderwhile the Regulation was in force and are also tried and convicted duringthat time. In the case of offences of murder committed before the date of theRegulation the punishment is as prescribed in the Suspension of Capital Punish-ment Act as the Regulation did not have the effect of suspending the Act inrespect of offences committed before it came into operation.”
Accordingly, a person who committed the offence of murder on October 6,1958, and was convicted on October 16, 1959, cannot be sentenced to death.
396
BA&SJA'S'AKID, O.J.—The Queen v. (I) Fernando and (3) Carolis
^^-PPEAXiS against convictions in two trials "before the Supreme Court.
Colvin JR. de Silva, with M. L. de Silva and J. N. David (assigned),for Accused-Appellant in Appeal No. 123.
G. SI. Chitty, Q.C., with W. B. Vannitamby, R. Rajasvn.gTw.rn, Tissa DiasBandaranayake, and Lucian Jayetileke (assigned), for Accused-Appellant in Appeal No. 124.
V. T. Thamotheram, Senior Grown Counsel, for the Crown.
Cur. adv. vult.
December 21, 1959. Baskayake, C.J.—
The appeals in the above mentioned cases were heard together in thesense that learned counsel for the respective appellants in the two caseswere permitted to address us one after the other and learned counselfor the Grown was heard in reply to both. This course was adopted onthe ground of convenience as the sole question argued in both appeals isthe legality of the sentence of death passed on the appellants.
On 27th December 1958 the appellant in the first appeal committedthe offence of murder for which he was indicted on 18th March 1959and convicted on 9th October 1959. In the second appeal the appellantcommitted the same offence on 6th December 1958 and was indicted on16th June 1959 and convicted on 16th October 1959. The trial of theSrst case commenced on 2nd October and that of the second on 12thOctober 1959. At the time the offences were committed the Suspensionof Capital Punishment Act, No. 20 of 1958, which came into force on 9thMay 1958 was in operation. Sections 2 and 3 of that Act read :
“ 2. During the continuance in force of this Act—
capital punishment shall not he imposed under section 296
of the Penal Code for the commission of murder and undersection 299 of the Penal Code for the abetment of suicide,and
sections 296 and 299 of the Penal Code shall have effect as if
for the word ‘ death 5 occurring in each of those sections,there were substituted the words ‘rigorous imprisonmentfor life ’.
“ 3. This Act shall continue in force for three years and shall thenexpire :
“ Provided,-however, that if the Senate and the House of Represen-tatives by resolution so declare, this Act shall continue in force for suchfurther period as may be specified in such resolution.”
When the appellants were tried and convicted and sentenced therewas in force a Proclamation made under section 2 of the Public SecurityOrdinance, No. 25 of 1947, as amended by Act No. 22 of 1949, Act No. 34
BASIN' ATAKE, C.J.—The Queen v. il) Fernando and (2) Carolis
397
of 1953 and Act Xo. 8 of 195S (hereinafter referred to as the PublicSecurity Ordinance) and published in Gazette Xo. 11,863 of 25th Sep-tember 1959. That Proclamation reads :
“Whereas I am of opinion that, by reason of the imminence of astate of public emergency in Ceylon, it is expedient so to do in theinterests of public security, the preservation of public order and themaintenance of supplies aad services essential to the life of the com-munity :
“ Know Ye that I, Oliver Ernest Goonetilleke, Governor-General,do, oy virtue of the powers vested io me by Section 2 of the PublicSecurity Ordinance, Xo. 25 of 1947, as amended by Act Xo. 22 of 1949,Act Xo. 34 of 1953 and Act Xo. S of 1959, by this Proclamation declarethat the Provisions of Part II of that Ordinance shall come into opera-tion throughout Ceylon on the Twenty-fifth day of September Onethousand Xine hundred and Fifty-nine.
There was also in force at that time the fol1 owing Regulatior made bythe Governor-General under section 5 of the Public Security Ordinance,.and published in Gazette Xo. 11,881 of 2nd October 1959 :
“Oaring the continuance in force of this regulation the operation ofthe Suspension of Capital Punishment Act, Xo. 20 of 1958, shall besuspended.”
On the expiry of the Proclamation and Regulation referred to abovea Proclamation and Regulation in like terms came into foice (Gazettes11,917 and 11,921 of 25th October 1959). They were succeeded byanother Proclamation and Regulation in exactly the same terms on 24thand 25th November respectively (Gazettes 11,983 and 11,966 of 24thand 25th November 1959). The last mentioned Regulation ceased tobe in force on the revocation on 3rd December 1959 (Gazette 11,992) ofthe Proclamation made under section 2 of the Public Security Ordinance.On 2nd December 1959 there came into operation an Act intituled theSuspension of Capital Punishment (Repeal) Act, No. 25 of 1959, designedto restore the punishment of death for murder. That Act reads :
“ 2. The Suspension of Capital Punishment Act, Xo. 20 of 1958,is hereby repealed.
” 3. Xotwitbstanding anything in any other written law; capitalpunishment shall be imposed—
(o) under section 296 of the Penal Code on every person who, onor after the date of the commencement of this Act, isconvicted of the offence of murder committed prior to thatdate; and
(5) under section 299 of the Penal Code on every person who,on or after that date, is convicted of the offence of abet-ment of suicide committed prior to that date.”
So much for the relevant enactments and regulations. Now what isthe effect of the Regulation which declares that during its continuancein force the operation of the Suspension of Capital Punishment Act,
39S
BASSTAYA.ECE, C.J.—The Queen v. (1) Fernando and (2) Gar alia
No. 20 of 1958, shall be suspended. ? At the respective trials of theappellants it appears to have been assumed that its effect was to bringinto operation section 296 of the Penal Code. That section reads :“whoever commits murder shall be punished with death”. Learnedcounsel for the first appellant contended that that assumption waswrong. He contended that the effect of the Regulation was to renderinoperative both section 296 and the Suspension of Capital PunishmentAct and that while the Regulation was in force there was no law inoperation which made murder punishable. The main argument of learnedcounsel for the second appellant was that the Regulation had noretroactive operation.
It was not contended that the effect of the Suspension of CapitalPunishment Act was not . to prohibit the imposition of the punishmentof death and to provide for the imposition of imprisonment for life forthe offence of murder even in the case of those who had committed murderbefore the commencement of that Act when the punishment for murderwas death. As the punishment imposed by Suspension of CapitalPunishment Act was less severe than that imposed by section 296 of thePenal Code it was not contended that the Act was not retroactive. Ithad in fact been interpreted and acted upon as being retroactive and on.and after the date on which it came into operation all persons convictedof the offence of murder committed before that date were sentenced to-imprisonment for life instead of to death. But in regard to the Regulationwhich suspends the Suspension of Capital Punishment Act it is contendedthat the suspension of a suspension does not bring into operation the lawthat was first suspended. Although so far as immediate effect is con-cerned there is little practical difference between a repeal and a sus-pension, the repeal of an enactment and its suspension are not the same.The effect of the repeal of an enactment is, subject to the provisionsof section 6 of the Interpretation Ordinance and any express provisionin the repealing enactment, to obliterate it as completely from the statutebook as if it had never been enacted or as if it had never existed. (Kayv. Goodwin1; Surtees v. Ellison 2). The suspension of an enactment does nothave the same effect nor does it attract the provisions of section 6 of the-Interpretation Ordinance. In the case of a suspension the statute is noterased from the statute book. It is there but it is dormant and doeanot speak in so far as the suspension is operative. Its operation is ar-rested for the duration of the suspension and to the extent to which the-suspension operates ; but it is on the statute book and exists9 and is noterased therefrom and is operative in so far as it is not affected by the-written law suspending it (Brawn v. Barry3). The effect of the suspensionof the Suspension of Capital Punishment Act is to remove to the-extent to which the Regulation is operative and for the time duringwhich it is in force the curb imposed, temporary though it be, onthe law whose operation was suspended by the Act. That theeffect of the Regulation suspending the Suspension of Capital Punish-ment Act is to restore the punishment of death for the offence ofmurder committed after the coming into operation of the Regulation
*(1830) 8 Bing. 576 at 582.
*3 U.S. 365.
8 (1829) 9B. & C. 750 at 752.
BASXAYAKZE, C.J.—The Q «en v. (I) Fernando and. (2) Carolis
399
and while it is in operation is not in doubt. But the furtherand more important question of its effect in respect of those whocommitted the offence of murder before and axe tried after it cameinto operation is not entirely free from difficulty, is the punishmentthat is to be indicted the punishment that is in the Act that has beensuspended and during whose operation the offence was committed or thepunishment which has come into existence or revived by the suspension ofthe enactment suspending it 1 The answer to that question is largelydependent on the language and scope of the provision of law suspendingthe suspension. It is a wall-settled rule of construction of statutes andstatutory instruments that the presumption is that a statute or statutoryinstrument is prospective and not retrospective or retroactive. Thereare countless judicial dicta on this topic, but it is sufficient to refer to oneor two of the more authoritative of them. In Gardner v. Xmcas1, LordO’Hagan stated : “ unless there is some declared intention of the Legis-lature-clear and unequivocal—or unless there are some circumstancesrendering it inevitable that we should take the other view, we oughtto prom mo that an Act is prospective and is not retrospective LordMacnaghten expressed the rule in terms not less effective in ColonialSugar Refining Co. v. Irving a, when he stated : “ statutes are not to beheld to act retrospectively unless a clear intention to that effect is mani-fested Although these dicta make no express mention of retroactivelegislation it is governed by the same rule. It will thus be seen thatLegislation is never presumed to be retrospective or retroactive, andtherefore a law will only he applied to cases occurring after its date,unless it appear from the statute itself that it is intended to have ret-rospective or retroactive effect. This rule is deeply founded on goodsense and strict justice because to deprive persons of rights acquired bytransactions perfectly valid according to the law at the time or to punishthem for what was lawful before the statute or to impose a severerpunishment than that which was in force before the time of the newwritten law would be unjust and oppressive. The rule arises from theancient maxim : “ nova constiiuiio fufuris formam imponere debet nonpr ester Ms ” (A new law ought to impose its conditions on the future,not on the past). The rule is as well established in Roman-Dutch lawas it is in the Anglo-American system. In Book I, Tit. 3, s. 17, Voetstates :
“ It is certain further that laws give shape to affairs of the future, andare not applied retrospectively to acts of the past. They are rules ofaction, precepts regulating the lives of men, and they have to be pro-mulgated before they have obligatory force, as we said above. Thusthose things which were done prior to a new law under precept or ancientright stand fast. If a penalty hag to be imposed for wrong-doingcommitted before a new law which perhaps sharpens the penalties,then it must be indicted according to the terms of the old and not of thesucceeding new law. How, asks the Emperor, did past time sin when,ignorant of the present law, it pursued the ancient practice of itsrights.1’
1 (1878) 3 L. M. App. Cases 582 at 601.
– {1905) A. C. 369.
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BASHAYAKE, C.J.—The Queen v. (I) Fernando and (2) Carolis
Voet instances six exceptions to tins rule. They are—•
when the legislator has nevertheless expressed himself otherwise
in clear words, treating hoth of past time and of present affairs.
when the Emperor bringsin a new law by'written answer or decree
on matters clearly in doubt.
when past affairs to which some obvious and ingrained injustice or
disgrace attaches.
when reason dictates that a law should also be applied to the
past when it is not so much a case of incorporating somethingnew in a new law as rather interpreting a previous doubtful law.
when an absurd meaning would spring from the law, if it were not
also applied to the past.
when some exemption or exception is brought in by the new law.
(Gane, Vol. I, pp. 47-49).
Turning to the Courts of the Commonwealth we find that the principleis affirmed with equal force in Australia, Canada, India, New Zealandand South Africa, in the last mentioned country it was reassertedas recently as last year in the case of The Jockey Club of South Africa v.Transvaal Racing Club 1—
“ A well known rule of interpretation is that, in the absence ofexpress provision to the contrary, a statute regulates future conductand is construed as operating only on cases or facts which came intoexistence after it was passed.”
Although the Suspension of Capital Punishment Act of 1958 did notmake it clear beyond doubt that it applied to offences committed beforeas well as after the Act, justice was not offended by its being construedas it if had a retroactive operation and applied to offences committedbefore it came into force because the punishment created by it wasless severe. There is a great and apparent difference between makingpersons liable to a lighter and a heavier punishment than that in forceat the time of the offence. That difference becomes more pronouncedwhen the heavier punishm ent is death. The Regulation does not indicatewith certainty that the Regulation-making authority intended that itshould apply to offences committed before the date on which it cameinto operation. It has left the intention unexpressed and there is nothingin it that goes to rebut the presumption that the regulation is not retro-active. On the other hand the Act repealing the Suspension of CapitalPunishment Act makes it clear beyond doubt that it is intended to beretroactive and creates no difficulty of interpretation although it mayoffend the canons of justice and morality as it plainly overrides thepresumption that the Legislature will not unjustly deprive a citizen ofhis vested rights or make him suffer more severe punishment for an offencethan that to which he was liable at the time he committed it. This is aconvenient point at which to explain the expressions retrospective and
1 (1959) 1 S. A. L. 8. 441 at 451.
BASXAYATTR, <?.J—The Queen v. (1) Fernando and (2) Garolis
402
retroactive ■which have been used above without definition and as if theywere synonymous. Although writers and Judges do not always use themin their strict sense and use them indiscriminately each of them has aspecial meaning. A retrospective enactment is an enactment that isbrought into operation from a date before that on which it is enacted or inthe words of Buckley Xi. J. in West v. Gwynex :
“ If an Act provides that as at past date the law shall be taken tohave been that which it was not, that Act I understand to be retros-pective.”
Such enactments are generally speaking found in the field of taxationlaw. Our legislation of the last two years contains many examples. Aretroactive enactment is one which comes into operation on or after thedate on which it is enacted but applies to acts which though partly donebefore the enactment still remain to be completed or performed afterthe enactment comes into force or to offences committed before theenactment came into operation but in respect of which the offenders havenot been tried or punished. The Suspension of Capital Punishment(Repeal) Act, No, 26 of 1959, is a striking example of retroactive legis-lation. In other words it is an enactment creating rights or obligations orimposing penal sanctions on the basis of events which have alreadytaken place. In America such legislation is better known as ex post factolegislation. Ex post facto legislation is thns defined :—
"1. Every law that makes an action done before the passing ofthe law, and which was innocent when done, criminal; and punishessuch action.
“ 2. Every law that aggravates a crime or makes it greater thanit was, when committed.
“3. Every law that changes the punishment, and inflicts a greaterpunishment, than the law annexed to the crime when committed.
“ 4. Every law that alters the legal rules of evidence, and receivesless, or different testimony, than the law required at the time of thecommission of the offence, in order to convict the offender. (CalderBull, 3 Dali 368 ; 1 L. Ed. 648).
Ex post facto laws which impose a more severe punishment alone areregarded as obnoxious. The rule is thus stated in Crawford on StatutoryConstruction at p. 575 :—■
“ Where the punishment is altered, and, consequently, in the lightof human experience and morality, favours the defendant, he cannotcomplain of the retroactive effect of the law" which changes the punish-ment. Obviously, since the condemnation of ex post facto legislationis founded on its inherent harshness, the basis of the condemnationdisappears where the alteration operates in favour of the accused or-condemned person.”
In the light of the principles of interpretation above enunciated theconclusion that the Regulation is prospective is inescapable and it carmot-
1104 L. T. 759 at 762-
402
Nazeer Ahamed v. Bank of Ceylon
with, reason he construed as being retroactive. It must he construedas applying only to offences of murder committed after it came intooperation and the suspension of the Suspension of Capital PunishmentAct operates as a suspension only as respects-those who-committed murderwhile the Regulation was in force and are also tried and convicted duringthat time. In the case of offences of murder committed before the dateof the Regulation the punishment is as prescribed in the Suspension ofCapital Punishment Act as the Regulation did not have the effect ofsuspending the Act in respect of offences committed before it came intooperation.
The cases of Director ofPublic Prosecutions v. Lamb Bvckman v. Button 1 2,and Wicks v. Director of Public Prosecutions 3, are of little avail to theGrown. In each of those cases the court held that there was no doubtthat the written law it had to construe was retroactive. In the firstnamed case Humphreys J. while affirming the established rule said :
.. where a statute alters rights of persons, or creates fresh
liabilities in regard to persons, or creates or imposes obligations uponpersons and thereby alters the law, such a statute ought not to be heldto be retroactive in its operation unless the words are dear precise andquite free from ambiguity. Pot such a proposition there is the mostample authority …. That doctrine, while I fully subscribeto it, and would willingly give full effect to it in any case where it waspossible to do so, to my mind has no effect at all in a ease where thelanguage of the statute, or, as in this case, of the order in council, isplain and can mean only that which it says.”
Por the above reasons we hold that the appellants were not liable tohe punished with death but only with imprisonment for life. We ac-cordingly quash the sentence of death passed on them at their respectivetrials and pass a sentence of rigorous imprisonment for life in substitutiontherefor in respect of each of them.
Sentence altered.
1 (1941) Z All E. B. 499.2 (1943) 2 AU E. B. 82.
2(1947) 1 AU E. B. 205.