Kannusamy v. The Minister of Defence and External Affaire
1961Present: T. S. Fernando, J.P. KANNUSAMY, Petitioner, and THE MINISTER OF DEFENCEAND EXTERNAL AFFAIRS, RespondentS. C. 104 of 1961—In the matter of an Application for the issue of a mandatein the nature of a Writ of Mandamus in terms of section 42 of the
Citizenship Act No. 18 of 1948, as amended by Act No. 13 of 1955—Section 11A (4)—Effect of words “ public interest ”—Mandamus.
Sub-section (4) of section 11A of the Citizenship Act No. 18 of 1948, asamended by Act No. 13 of 1955, reads as follows :—
“ The Minister may refuse an application sent to him undersub-section (3), if he is satisfied that it is not in the public interest togrant the application.”
* (1913) 5 Bal. N. C. 30.» (1919) 6 O. W. R. 109.
'(1942) 43 N. L. R. 565 at 566.* (1942) 43 N. L. R. 562.
® (1911) 15 N. L. R. 157.
T. S. FERNANDO, J.—Kannusamy v. The Minister of Defence and
Held, in an application for registration as a citizen of Ceylon in terms of section11 A, that inasmuch as the statute permits the Minister to disallow an applica-tion where he is satisfied that it is not in the public interest to grant it, the Courtshould not review a disallowance of an application by examining whether it isactually not in the public interest to grant it. The minister is the sole judge ofthe requirements of the publio interest.
.A. PPLICATION for the issue of a Writ of Mandamus directing theMinister of Defence and External Affairs to register the petitioner as acitizen of Ceylon.
M.Tiruchelvam, Q.O., with K. Thevarajah, for the petitioner.
D. St. C. B. Jansze, Q.C., Attorney-General, with Mervyn FernandoyCrown Counsel, for the respondent.
Cur. adv. vult.
November 16, 1961. T. S. Fernando J.—
The petitioner who was an applicant for registration as a eitizen ofCeylon in terms of section 11A of the Citizenship Act, No. 18 of 1948, asamended by the Citizenship (Amendment) Act, No. 13 of 1955, wasinformed by the Permanent Secretary to the Minister of Defence andExternal Affairs by letter dated November 23, 1960 that the former hadbeen directed by the Minister to inform him (the petitioner) that hisapplication for citizenship under section 11A of the Citizenship Act hasbeen disallowed.
The petitioner has applied to this Court for the issue of a mandate in thenature of a Writ of Mandamus ordering and directing the respondent togrant his application for registration. In his amended petition thepetitioner claims that he has all the qualifications specified in section11A (3) of the Act, but that the respondent has wrongfully and illegallyadopted a practice whereby applications for citizenship under section 11Aare refused in the case of applicants who are in Ceylon on visas at thetime of application. The petition goes on to allege further that “ thepetitioner is credibly informed and verily believes that his applicationwas not considered by the respondent but has been dealt with by anofficial in the respondent’s Ministry who has applied a rule of thumb byrefusing the application on the ground that the petitioner was residing inCeylon on a residence visa at the time he made his application Thepetition is supported by the petitioner’s own affidavit which contains,inter alia, the allegations referred to above.
At one stage of the argument, in view of the averments in the petitionand affidavit I have just referred to that the application for citizenshipwas not considered by the respondent but has been dealt with by anofficial in the Ministry, I inquired from counsel for the petitioner whetherhe desires to move to amend the caption and prayer of the petition or
T. S. FERNANDO, J.—Kannusamy v. The Minister of Defence and
amend the petition in any other way. Counsel, however, after consider-ation indicated to me that he does not propose to move to amend. Ishall therefore proceed to consider the application on the basis that theallegation is that, although the respondent has considered the application,she has applied a rale or test that it was not open to her in law to apply.When I drew the attention of learned counsel for the petitioner to the factthat his client’s affidavit contains on this point matter that is only hearsay,counsel submitted that the respondent has not attempted to counter therelevant allegations in the petition and affidavit and argued that whetheror not the respondent applied an inadmissible rale or test in refusing theapplication is a matter entirely within the peculiar knowledge of therespondent, and that the petitioner can adduce no further proof in thecircumstances and cannot affirmatively prove a negative proposition offact. He contended that section 106 of the Evidence Ordinance placesthe burden of proving that such a rale of thumb or test was not appliedupon the respondent who is the best person to say whether or not such arule or test was in fact applied. The learned Attorney-General indicatedthat the position he was taking was that an allegation founded on hearsaydoes not require to be refuted. In these circumstances, Mr. Tiruchelvamwanted an opportunity to summon the Permanent Secretary of theMinistry concerned to be examined in regard to the allegation that theapplication was refused merely because the applicant was at the time ofapplication resident in Ceylon by virtue of a visa granted to him. Counselwere unable to refer me to any previous instance in which oral evidencewas admitted in applications to this Court for mandates in the nature ofwrits of madamus, certiorari, etc., but it became unnecessary to considerfurther the application for summons to call evidence as I was satisfiedthat the substantial prayer of the petitioner cannot in any event begranted by this Court.
The learned Attorney-General has drawn my attention to sub-section
of section 11A which is reproduced below:—
The Minister may refuse an application sent to him under sub-section (3), if he is satisfied that it is not in the public interest to grantthe application.
According to the papers annexed to the petition itself is a document bywhich the petitioner has been informed by direction of the Minister thathis application has been disallowed:Where the Act permits the Minister
to disallow an application where the Minister is satisfied that it is not in thepublic interest to grant it, I cannot conceive that Parliament intendedthat this Court should review a disallowance of an application by examin-ing whether it is actually not in the public interest to grant it. Parliamentclearly intended that the Minister should be the sole judge of the require-ments of the public interest, and in making a determination on thequestion it can hardly be doubted that the Minister may consider notmerely the qualifications, of the applicant but, among other things,
H. N. G. FERNANDO, J.-—Gunasena v. The Queen
questions of policy and expediency as well. The decision of the Ministeris a thing for which she must be answerable in Parliament, but her actioncannot be controlled by the Court. As to what considerations shouldweigh with the Minister, it is not open to the Court to substitute its ownopinion in place of the Minister’s opinion that the granting of a particularapplication for citizenship under section 11A is not in the public interest.I am therefore compelled to the conclusion that it is not open to thisCourt to direct the Minister by wav of mandamus to grant an applicationfor citizenship in terms of section 11A of the Act.
The application is dismissed with costs.
P. KANNJUSAMY, Petitioner and THE MISNSTER OF DEFENCE AND EXTERNAL AFFAIRS, Resp