Delivered by LORD DARLING.—Abeyesekere v. Jayatilaka.
1931[In the Privy Council.]
Present: Viscount Dunedin» Lord Blanesburgh,and Lord Darling.ABEYESEKERE «. JAYATILAKA.
Ceylon (Legislative Council) Order in Council—Sovereign's right of legislation—Inherent legislative powersoverColonies—Conquest andcession—
Right to indemnify—Ceylon (Legislative Council) Amendment Order tn
His Majesty the Sing is vested with legislative powers,inherent
in him by his title derived from conquest and cession of Ceylon, in so faras he has not parted with any of them by acts of his own.
In exercise of the legislative powers reserved to him. when partingwith a portion of the right originally vested in him, His Majesty has theright to indemnify and give relief iu respect of penalties incurred underArticle XVI. of the Ceylon (Legislative Council) Order in Council, 1923.
^^PPEAL from a judgment of the Supreme Court.
November 9, 1931. Delivered by Lord Darling—
This is an appeal from a decree of the Supreme Court, of the Island ofCeylon dated March 20, 1930, confirming a decree of the District Courtof Colombo dated March 11, 1929, whereby was dismissed an action whichthe plaintiff (the appellant in this case) had brought against the respondent-defendant. In that action- the appellant as common informer, sued therespondent by virtue of Article 16 of the Ceylon (Legislative Council)Order in Council, 1923, alleging that he, having pecuniary interests in acontract with the Government within the meaning of Article 17 of theOrder, had sat and voted in the Legislative Council on numerous occasionsand had thereby rendered himself liable to penalties. Certain interlocu-tory matters were decided in the action, but before the action cameon for trial an Order in Council, the Ceylon (Legislative Council) Amend-ment Order in Council, 1928, was passed and came into force on December14, 1928. This order, after reciting that His Majesty .had reserved tohimself power to revoke, alter, or amend the order of 1923, enacted asfollows: —
“ II. No action, prosecution, or legal proceeding – whatsoever under theprovisionsofarticle XVI.ofthe Principal Order or otherwise, shall be
brought, instituted, or maintained—
tortherecovery ofanypenalty incurred, or alleged to have been
incurred, under the said Article, whether for the amount prescribedtherein, or hot; or
fortherecovery ofanydamages, the enforcement of any forfeiture
or penal consequencesor the declaration of any vacancyor
against the Editor of the Sinhalese Etymological Dictionary
“ for or on account of or in respect of hi6 haying sat or voted in the Councilas an Elected Member thereof at any time between the 24th day of January,1924, and the date of the coming into operation of this Order in Councilafter his seat became, or is alleged to have become, vacant by reason ofhis having any direct or indirect pecuniary interest in any contract with
Delivered by LORD DARLING.—Abeyesekere v. Jayatilaka.
tbc 'Government of the Island for or on account of the Public Service, orof bis having accepted a public dffice under tbe Crown in the Island, withinthe meaning of Article XVII. of the Principal Order; and if any such action,prosecution or legal proceeding has been, or shall hereafter be brought orinstituted, it shall be dismissed and made void, subject to such order as tocosts as the Court may think fit to make. "
On January 28, 1929, the defendant filed a motion that the action bedismissed; and on March 11, 1929, the learned Judge of the DistrictCourt made an order dismissing the action, leaving each party to bear itsown costs. This order was confirmed by the Supreme Court.
Against that order the present appeal is brought.
This case is of importance constitutionally, as raising the question ofthe right of His Majesty in Council to make the order of November 1,
It is necessary, therefore, to state how the jurisdiction of HisMajesty over Ceylon arose.
The Island of Ceylon became, in the 18th century, part of His Majesty’sdominions by reason of conquest and cession; and since that time hasbeen governed by the Sovereign as a Crown Colony on which certainTights of legislation and executive government have been conferred byletters patent and Orders in Council. That His Majesty’s rights are, inthese circumstances, well founded is sufficiently established by the judg-ment of Lord Mansfield in the case of Campbell v. Hall *, where he says onpage 211:— .
“ No question was ever started before, but that the King has a right'to a legislative authority over a conquered country ; it was never deniedin Westminster Hall ; it never was questioned in Parliament. Coke'sReport of the arguments and resolutions of the judges in Calvin's case,lays it down as clear. If a king (says the book) comes to a kingdom byconquest, he may change and alter the laws of that kingdom ; but if hecomes to it by title and descent he cannot change the laws of himselfwithout the consent of parliament. It is plain he alludes to his owncountry because he alludes to a country where there is a parliament. "
This status endures merely so long as the Island is not constituted acolony, but remains simply a conquest. Once it becomes a colony theKing can act only within the constitution granted and applicable to thatcolony. Thenceforward the King, by his own act,—from which he maynotderogate—hassubjecttoall reservations precludedhimselffrom
proceeding otherwise. The constitution of the Island of Ceylon derivesfrom letters patent of September 11, 1920, passed under the Great Seal ofthe United Kingdom, constituting the office of Governor and Commander-in-Chief of the Island of .Ceylon and its dependencies. Paragraph XIII.of those letters patent runs as follows: —
XIII.We doreservetoOurselves, Our heirs, andsuccessors,Our
and their undoubted right with the advice and consent of Parliament,orwiththe adviceof OurorTheir Privy Council, to make from time to
time allsuch lawsas maytoUs or them appear necessaryfor thepeace,
order, and good government of tbe Island, as fully and effectually as ifthese presents had not been made. " 1
1 (1174) 1 Cowper’t Reports, P 204.
Delivered by LORD DARLING*.—Abeyesekere v. Jayatilaka.
In 1923 there was made the Ceylon (Legislative Council) Order inCouncil of December 19, establishing the present Legislative Council anddealing with many matters connected with it. Section 67 of this Order inCouncil is as follows: —
“ TTigMajesty hereby reserves toHimself,His Heirs and Successors,
power, with the advice of His or Their Privy Council, to revoke, alter, or amendthis Order as to Him or Them shall seem fit. ”
The action which gives rise to thisappealis founded upon
clauses XYI. and XVII. of this Order in Council of December 19, 1923,•which are as follows: —
XVI. " Every personwho …. shallsitor vote intheCouncil
after his seat has become vacant shall for every * day on which he sits orvotes after his seat hasbecomevacantbeliableto a penaltyofRs. 500
-to berecovered by action in theDistrictCourtof …. by any
person who shall sue for the same. ’’
XVn." If any Elected Memberof theCouncilshall …. ha-ve
any direct or indirect pecuniaryinterestinanycontract withtheGovern-ment of the Island foror onaccountofthepublic service…. or
shall accept any public office under the Crown in the Island his seat inCouncil shall thereupon become vacant. "
It was alleged in the action that the respondent had rendered himselfliable under these sections in that, having been elected a member of theLegislative Council prior to 1927, he had in April, 1927, then beingeditor-m-ehief of the Etymological Dictionary of the Sinhalese language,gained or obtained, and still had, ’a direct or indirect pecuniary interestin a contract 'with the Government of the Island for or on account of thepublic service, or alternatively had accepted and still held a public officeunder the Crown in the Island within the meaning of the said clause XVII.It was also claimed that by reason of the premises, the respondent's seatin the Legislative Council had become vacant in April, 1927, and that hehad nevertheless sat and voted in the Council since 1927 on variousdates specified and had thereby incurred the penalty amounting to atotal of Rs. 23,000, which the appellant, by virtue of clause XVII., wasentitled to recover in that action. It is unnecessary to consider whetherthe claim of the plaintiff in that action was well founded or not, for onNovember 1, 1928, an Order in Council was made in these terms: —
" Whereas by an Order in Council bearing date the 19th day of December
1923, and known as the Ceylon (Legislative Council) Order in Council, 1923(hereafter referredto as 1 thePrincipal Order’),provisionwasmade
for the constitution of a LegislativeCouncil in andforthe IslandofCeylon:
And whereas His Majesty reserved to Himself, His Heirs, and Sue*cessors, power, withthe advice ofHis or TheirPrivy Council,torevoke,
alter, or amend the Principal Order as to Him or Them should seem fit:
'And whereas thePrincipal Orderwas ^amendedbyan OrderinCouncil
hearing date the 21st day of March, 1924, and known as the Ceylon(Legislative Council) Amendment■ Order in Council, 1924:
And whereas it is necessary to indemnify and – relieve the Editor of theSinhalese Etymological Dictionary from such penal * consequents ashe may have incurred or suffered by sitting or voting in the Council asan Elected Member thereof between the 24th day of January, 1924, and the
Delivered by LORD DARLING.—Abeyesekere v. Jayatilaka.
coming intooperationofthis Order in Council after hisscatbecame, oris
alleged tohave become, vacant on theground hereinafterappearing,or
as he might hereafter incur or suffer for a like reason:
Andwhereas itis therefore expedient toamend thePrincipal Order as
hereinafter is set forth:
Now, therefore, itishereby ordered byHis Majestybyand withthe
advice of His Privy Council, as follows: —
This Ordermay be citedas ‘ The Ceylon (Legislative Council)
Amendment Order in Council, 1926. ’ It shall be published in the CeylonGovernmentGazetteandshall come intooperation onthedate ofsuch
No action,prosecution,or legal proceedingwhatsoever under
the provisionsof Article XVI.of thePrincipalOrder or otherwise,shall
be brought, instituted, or maintained—
for therecovery of anypenaltyincurred,or alleged to havebeets
incurred, under the saidArticle,whether for the amount pre-
scribed therein., or not; Or
for the recovery of any . damages, the enforcement of any forfeiture-
orpenalconsequences or ithc ' declaration of any vacancy or
against the Editor of the Sinhalese Etymological Dictionary for or on account ofor in respect of his having sat or voted in the Council as an Elected Member thereofat any time between the 24th day of January, 1924, and the date of the cominginto operation of this Order in Council after bis seat became, or is alleged to havebecome, vacant by reason of his having any direct or indirect pecuniary interestin any contract with the Government of the Island for or on account of the PublicService, or of his having accepted a public office under the Crown in the Island,within the meaning of Article XVII. of the Principal Order; and if any such action,prosecution,or legal proceeding has been,or shall hereafterbe, brought or instituted,
it shall bedismissed and made void,, subject to such orderas tocosts as the Court
may think fit to make.
Article XVII.—(1) of the Principal Order is hereby amended by .the additionthereto of the following proviso: —
• Provided that nothing in this article shall be construed so as to render vacant theseat .of any Elected Member of the Council on the ground that by reason of hisbeing or becoming an Editdr of the Sinhalese Etymological Dictionary he has, ormay have,,any such pecuniary interestin any contractwiththe Government of
this Islandas aforesaid, or has acceptedany public officeunderthe Crown in this
Island within the meaning of this Article. ’
His Majesty hereby reserves to Himself, His Heirs and Successors, power,with the advice of His or Their Privy Council, to revoke, alter, or amend this orderas to Him or Them shall seem fit. ”
The Order in Council of 21st March, 1924, is irrelevant as regardsthis action, and need not be again mentioned.
If the Order in Council of November 1, 1928, be valid, it is obviousthat any rights which the appellant may have had in regard to thematters for which his action was brought exist no longer, and its validityis the sole question to be decided upon this appeal. In their Lordships'opinion, there was power in His Majesty to make the Order in Councilnow objected to. It was argued that this was an exercise of the RoyalPrerogative by the King in Council, as the supreme executive officer ofthe Island. It appears to their Lordships that this was not an exerciseof the Royal Prerogative in that sense. It is indeed the exercise by
Rafecka v. Mohamad Sathuck.
His Majesty, as Sovereign, of the legislative powers inherent in him byhis title derived from conquest and cession of Ceylon, so far as he had notparted with any of them by acts of his own; and their Lordships are ofopinion that it is plain from the letters patent and Orders in Councilalready recited .that His Majesty had expressly reserved to himself theright to do that which, by the Order in Council now in question, heundoubtedly has done. Such right as the plaintiff may have had aroseentirely out of the Order in Council of December 19, 1923, which wasmade by His Majesty in Council by virtue of the same authority as thatwhich justifies the making of the Order in Council of November 1, 1928.Their Lord6hip6 are of opinion that, while it would not have beencompetent for His Majesty, by virtue of the Eoyal Prerogative alone tomake either order, he was perfectly competent and had .sufficient rightand title to make them both by virtue of the legislative authority he hadreserved to himself when parting with a portion of the right originallyvested in him.
It was argued that the Order in Council of November 1, 1928, was ultravires as affecting to take away rights already in existence, thus having aretrospective action. The effect, however, of the order of 1928, asexpressed on the face of it, was no more than an act of indemnity and reliefin respect of penalties incurred. It may be true that “ Not Jove himselfupon the past hath power but legislators have certainly the right toprevent, alter, or reverse the consequences of their own decrees. Thereis no necessity to give instances to prove that they have frequently doneso; even going so far as to restore the heritable quality to blood which hadbeen deprived of its virtue by Acts of attainder. Indeed, in the lastSession of the Parliament which has just ended, legislation, preciselysimilar to that here called in question, was passed to deprive a plaintiffof penalties already accrued by reason of breaches of the Lord's Day Act
Their Lordships have therefore humbly advised His Majesty that thisappeal should be dismissed with co&ts.
ABEYSEKERE v. JAYATILAKA