de Saram v. Ratnayake
Present : Sanson i, J.
C. DE SARAM et al., Petitioners, and F. 3). L. RATNAYAKE(Commissioner of Prisons) et al., Respondents
S. C. 37—40—Applications for Writs of Mandamus on F. D. L. Ratnayake,Commissioner of Prisons, and N. Q. Dias, Permanent Secretary, Ministry
of Defence and External Affairs
Emergency (Miscellaneous Provisions and Powers) Regulations, 1962—Regulations23(1) and 23(3)—Proper method of giving direction under proviso to Regulation23(3)—Power of Governor-General to amend, suspend or modify any law—Person detained under Regulation 23(1)—Right to the benefits of prison rulesapplicable to civil prisoners—Prisons Ordinance (Cap. 54), ss. 71, 94—PublicSecurity Ordinance (Cap. 40), ss. 5 (2) (d), 10—Effect of repeal of written law—Interpretation Ordinance (Cap. 2), s. 6 (3) (b) and (c).
Rights conferred by a repealed statute cannot be considered as rights whichhave been “ acquired ” by a person within the meaning of section 6 (3) (b) of theInterpretation Ordinance unless there has been some proceeding instituted by oragainst him in respect of that right.
A person who is held in detention on orders made under Regulation 23 (1) ofthe Emergency (Miscellaneous Provisions and Powers) Regulations of the 9thJanuary, 1962, is entitled, by virtue of Regulation 23 (3) to a writ of mandamusto enable him to receive visits from, and to communicate with, his relations andfriends and his legal adviser in accordance with the provisions of Part IX of thePrisons Ordinance and the rules made thereunder. The application for manda-mus will be granted even if, after the application has been filed, a new Regulationis published providing in general terms, without express provision relating torights already acquired or to proceedings already instituted, that during itscontinuance all the provisions of Part IX of the Prisons Ordinance and therules made under that Ordinance shall not apply to any person detained on anorder made under Regulation 23 (1). But the application for mandamuswill nor. be granted if it is initiated after the new Regulation has come intooperation, even though the applicant would have been entitled to the benefitsof the prison rules if he had filed the application for mandamus prior to thedate when the new Regulation was enacted ; in such a case the person detained,who had not filed any application for mandamus before the new Regulation wasframed, cannot be said to have acquired a right within the meaning of section6 (3) (6) of the Interpretation Ordinance.
A direction given by the Permanent Secretary under the proviso to Regulation23 (3) of the Emergency Regulations is very far removed from an executive act.It is necessary, therefore, to scrutinise with great care any document which,assuming that if issued in due form it would have legal validity, is said to havebeen issued under that proviso. The document must purport to have beenmade or issued under Section 10 of the Public Security Ordinance.
Section 6 (3) of the Interpretation Ordinance dealing with the effect of repealof a written law is applicable also when the operation of a law is suspended.
The term “ law ” in section 5 (2) (d) of the Public Security Ordinance couldmean either a statute or a regulation.
_/_PPLICATlONS for writs of mandamus on the Commissioner of Prisonsand the Permanent Secretary, Ministry of Defence and ExternalAffairs.
SANSONI, J.—de Saram v. Rainayajce
O.Q. Ponnambalam, Q.C., with R. A. Kannangara and K. N. Choksy, insupport of Application No. 37.
G. Ponnambalam, Q.C., with E. G. Wikramanayake, Q.C., EL. W.Jayewardene, Q.C., R. A. Kannangara and K. N. Choksy, in support ofApplication No. 38.
G. Ponnambalam, Q.C., with Sam Kadirgamar, Stanley de Zoysa.
W.T. P. GoonetiUeke and R. Ilayjperuma, in support of Application No. 39.
S. Jdyawickreme, Q.C., with E. A. G. de Silva and Cecil de S. Wije-ratne, in support of Application No. 40.
G^ Wikramanayake, Q.C., with J. V. M. Fernando, in support ofApplication No. 50.
Ananda Pereira, Senior Crown Counsel, with V. S. A. Pullenayegum,Crown Counsel, Mervyn Fernando, Crown Counsel, and H. L. de Silva,Crown Counsel, for the respondent in all 5 Applications.
February 8, 1962. Sansont, J.—
I have heard arguments on applications Nos. 37, 38, 39, 40 and 50 whichare applications for a writ of mandamus on the Commissioner of Prisonsand the Permanent Secretary, Ministry of Defence & External Affairson behalf of five persons who are held in detention at Welikade Prisonon orders made by the Permanent Secretary under Regulation 23 (1) ofthe Emergency (Miscellaneous Provisions and Powers) Regulationsappearing in Government Gazette No. 12,850 of 9th January last.
Since orders were made by me to issue notices on applications Nos. 37,38, 39 and 40, another Regulation was published in Government GazetteNo. 12,897 of 6th February. That Regulation provides that during itscontinuance all the provisions of Part IX of the Prisons Ordinance andthe rules made under that Ordinance which relate to visits to, and thecorrespondence of, prisoners shall not apply to any person detained on anorder made under Regulation 23 (1). Mr. Pereira informed me thatthis regulation was made by the Governor-General on the evening of 6thFebruary. That answer, given to a question put by me, has a directbearing on the order which I intend to make in these applications. It willmean that applications Nos. 37, 38, 39 and 40 will succeed, while applica-tion No. 50 will fail, for reasons which I now give.
The complaint of the petitioners is that, since these five persons weretaken into custody they have been deprived of the statutory privilegeswhich should have been made available to them according to the rulesframed under the Prisons Ordinance, Cap. 44, which Rules have beenmade applicable to them by Regulation 23 (3) of the Emergency Regula-tions. That Regulation provides that a person detained in pursuance
SANS ONI, J.—de Saramv. Ratnayake
of an order tinder Regulation 23 (1) shall be treated as though he were acivil prisoner within the meaning of the Prisons Ordinance, The rulesas to civil prisoners are rules 190 to 211 and are to be found in Volume Iof the volumes containing Subsidiary Legislation, (1938 Edition).Those rules deal with many matters but X mention in particular Rule 200under which a prisoner shall be permitted to be visited by one person or(if circumstances permit) by two persons at the same time, for a quarterof an hour on any week day, during such hours as may from time to timebe appointed by the Superintendent. Rule 201 provides that a prisonershall, at his request, be allowed to see his legal adviser, (that is, hisadvocate or proctor) on any week day at any reasonable hour, and, ifrequired, in private but (if necessary) in view of an officer of the prison.Rule 204 provides that paper and all other writing materials shall befurnished to a prisoner so that he can communicate with his friends orpetition any authority or prepare a defence : it also provides that anywritten communication prepared as instructions for a proctor shall bedelivered to the Superintendent to be forwarded without being pre-viously examined by the Superintendent or any officer of the prison. Nowthese are rules which cannot be rescinded, suspended, or modified exceptby duly constituted lawful authority. Section 94 of the Ordinanceprovides that these rules are to be valid and effectual as if they areenacted in the Ordinance. The rules themselves had been framed underSection 71 of the Ordinance which makes it quite clear that the legislaturerealised that a prisoner should be allowed to receive visits from, and tocommunicate with, his relations, and friends and his legal adviser, althoughit also realised that rules framed under that section had to provide forthe maintenance of discipline and order in the prison and to preventcrime.
When I ordered notices to be issued on applications Nos. 37, 38, 39 and40, everybody was under the impression that these rules were still in fullforce; and when the argument was adjourned yesterday, the only matterwhich was put forward as affecting the application of these rules to thematters arising out of these petitions was the Regulation made by theGovernor-General on the evening of the 6th February. During the courseof the argument today, Mr. Pereira brought it to the notice of this Courtthat a direction, as I think he called it, had been given by the PermanentSecretary to the Acting Commissioner of Prisons dated 31st January, 1962.He submitted that this direction suspended the operation of these rulesso far as those held in detention upon an alleged conspiracy to overthrowthe Government were concerned. He relied on a document, bearing thedate X have mentioned, which is marked “ confidential *% and which issigned by an assistant secretary, on which to base his argument thatRegulation 23 (3) does not really help these petitioners. He pointedto the proviso to that Regulation, upon which he submitted this docu-ment had been issued. That proviso reads : “ Provided that the Per-manent Secretary to the Minister of Defence & External Affairs may
SANSOXT, J.—de Saram v. Ralnayatce "
direct that any such rule shall not apply or shall apply subject to suchamendments or modifications as may be specified in such direction.-The rules referred to in that proviso are, of course, the rules made underthe Prisons Ordinance.
A close examination of this document reveals that it does not purportto have been made or issued under Section 10 of the Public SecurityOrdinance, Cap. 40. Under that section, *'every document purportingto be an instrument made or issued by the Governor-General or otherauthority or person in pursuance of this Ordinance or of any emergencyregulation, and to be signed by or on behalf of the Governor-Generalor such other authority or person, shall be received in evidence and shalluntil the contrary is proved be deemed to be an instrument made orissued by the Governor-General or that authority or person.” Mr. Jaya-wickrema relied on this section and stressed that the document mustpurport to be made or issued in pursuance of an emergency regulationbefore it can be given the effect claimed for it under the proviso to Regula-tion 23 (3). It was further attacked by Mr. Ponnambalam as beingmerely some confidential communication, not published at any time,passing from an assistant of the Permanent Secretary to the ActingCommissioner of Prisons; he submitted that this was not the propermethod of giving a direction under the proviso to Regulation 23 (3).
I feel bound to say that when the Permanent Secretary acts underthat proviso, he is in effect exercising legislative power. The Regulationpurports to invest him with that power and to authorise him to exerciseit by dispensing with, or suspending the operation of a law, or by amendinga law—the law in this instance being Regulation 23 (3). While thePublic Security Act has conferred on the Governor-General power tomake regulations and to amend, suspend or modify laws, it has notinvested the Permanent Secretary with such power ; and I doubt if theGovernor-General can himself do so. A direction given by him underthat proviso is very far removed from an executive act. One musttherefore scrutinise with great care any document which, assumingthat if issued in due form it would have legal validity, is said to have beenissued under that proviso. How close the exercise of the PermanentSecretary’s power under the proviso, assuming he had exercised it,comes to legislation can be seen when one takes into account the termsof the Regulation framed bjT the Governor-General on the 6th February.There is, so far as I can see, very little difference between the provisionsof this document dated 31st January, 1962, and that Regulation of theGovernor-General. Certainly the scope of the latter is wider, but thepowers exercised by those who made both instruments are of the sameorder. In a matter which concerns personal rights and privileges, it isthe duty of the Court to construe the relevant provisions strictly, andto see that all the prescribed conditions are observed. The legality ofthe attempt to interfere with those rights, which the persons detainedhad under the taw. and which are only slightly lower than their liberty,
SANSONI, J.—de Saram v. Ratnayahe
has not been established so far as it was sought to be established by theproduction of the communication dated 31st January, 1962, to the ActingCommissioner of Prisons.
Now there is one clear line of distinction which has to be drawn betweenapplications Nos. 37, 38, 39 & 40 and application No. 50 and that is this :The first four were filed before tbe new Regulation was made on 6thFebruary, while application No. 50 was filed after that Regulation wasmade. The question then is whether the new Regulation has the effectof withdrawing from the persons concerned in the first four applicationsthe rights and liberties which they had acquired under the prison rulesas they stood ; or putting it in another way, whether the proceedingswhich had been instituted before the new Regulation was made, shouldnot be carried on and completed as if there had been no such Regulation.Section 6 (3) (6) & (c) of the Interpretation Ordinance, Cap. 2, is quiteclear in its terms. It requires express provision to be made in any writtenlaw which repeals in part or in full a former written law. Where no suchexpress provision is made, the later written law can have no force oreffect so far as rights acquired or proceedings already instituted areconcerned.
Indeed Mr. Pereira did not argue that the new Regulation had anyretrospective effect. His submission on this part of his argument wasthat if the applications are allowed, the respondents will have to act inbreach of the new Regulation, and in doing so will be acting illegally.He submitted that in applications for mandamus the Court will not issuethe writ if its effect wouid be to compel the respondents to act in breachof the law. I cannot accept that submission. To answer it, I have to goback to the question whether rights that existed in any particular personswho were detained, can be taken away by the framing of a new Regulationwhich does not comply with the requirement of express provisioncontained in Section 6 (1) (3) of the .Interpretation Ordinance. Sucha Regulation cannot in any way deprive those persons of the rightswhich were already vested in them. If the Regulation cannot affect'the rights of the persons detained, so far as applications Nos. 37, 38, 39and 40 are concerned, then the respondents would be acting in confor-mity with the law in complying with a writ issued in those applications,because those rights which those persons had must be preserved to them.I see no point in the Ordinance providing in Section 6 (3) (c) that theaction, proceeding or thing should be carried on and completed as if therehad been no change in the law, if its ultimate result was going to be entirelyvain and fruitless. The Regulation cannot affect the power and jurisdic-tion of the Court to enforce the rights of those persons, since thoserights themselves are not in any way affected by the Regulation.
But with regard to application No. 50, the position is different, andthe question that arises there is whether a person detained, who hadnot filed any application to this Court before the new Regulation was
SANSONX, J.—de Saram v. Ratnayake
framed, can be said to have acquired a right within the meaning ofSection 6 (3) (6). In my view he did not acquire a right merely becauseof his detention. It is the initiation of a proceeding to avail himself ofthat right that gives him the protection of Section 6 (3). Authorityfor this is to be found in the case of Abbot v. Minister of Lands*.At page 431, the Lord Chancellor giving the judgment of thePrivy Council put the question whether the power to take advantageof. an enactment is a right accrued. He answered it in the negative.He went on to say : “The mere right (assuming it to be properly so called)existing in the members of the community or any class of them to takeadvantage of an enactment without any act done by an individual towardsavailing himself of that right, cannot properly be termed a right accruedwithin the meaning of the enactment”. The enactment in questionthere was an Act of 1861, Section 22 of which ran : “Provided always thatnotwithstanding such repeal all rights accrued and obligations incurredor imposed under or by virtue of any of the said repealed enactmentsshall subject to any express provisions of this Act in relation theretoremain unaffected by such repeal”. I think the true rule is that rightsconferred by a repealed statute cannot be considered as rights whichhave accrued in favour of an individual unless there has been some pro-ceeding instituted by or against him in respect of that right.
Mr. Pereira also submitted that as the new Regulation only suspendsthe operation of the Prison rules and does not repeal them, Section 6 (3)of the Interpretation Ordinance has no application at all, since thatsection only refers to repeals. I cannot agree that the mere suspensionof a law can have a more prejudicial effect than a repeal. Surely thegreater (that is, repeal) will include the less (that is, suspension). If Iam wrong here, then the ordinary rule will apply, that the rights of theparties to a pending proceeding have to be ascertained as at the timeof the institution of those proceedings.
Mr. Wikramanayake also argued that the Public Security Ordinancedid not justify the framing of a Regulation such as the one under question.He said that it did not come within the terms of Section 5 (2) (d) whichenables the Governor-General to amend any law or suspend the operationof any law or apply any law with or without modification. I am unableto agree with him. “Law” within that section could mean either astatute or a regulation. Regulation 23 (3), to which I have already-referred, made the Prison rules applicable to detained persons. Whenthe new Regulation provided that Part IX and the rules made underthe Prisons Ordinance shall not apply to persons detained, the Governor-General was either suspending the operation of a part of the PrisonsOrdinance in so far as the particular detained persons were concerned,or was applying the Prisons Ordinance with a modification. It . couldalso be said that he was modifying Regulation 23 (3) which had broughtinto operation the rules framed under the Prisons Ordinance.
i (1895) A. C. 425.
SINNETAMBY, J.—Cassim v. Jainudeen
I think I have now dealt with the more important submissions madeon these applications, submissions which have helped me considerably toarrive at my decision without the need for reserving judgment. In theresult, applications Nos. 37, 38, 39 & 40 are allowed and applicationNo. 50 is dismissed. The successful parties in each application will havetheir costs.
Applications 37, 38, 39 and 40 allowed.
Application 50 dismissed.
F. C. DE SARAM et al., Petitioners, and F. D. L. RATNAYAKE