BANDARANAIKE v. ATTORNEY-GENERAL

048-SLLR-SLLR-1982-2-BANDARANAIKE-v.-ATTORNEY-GENERAL.pdf


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BANDARANA1KE
' v.
ATTORNEY-GENERAL
SUPREME COURT
SHARVANANDA, J., WANASUNDERA, J., AND VICTOR PEKERA, J.S.C. APPLICATION NO. 104/82NOVEMBER 25, 1982
Constitution – Articles 93(5) 83. 84, .85, 120, 122, 123, 132 – Bill id amendConstitution – Certificate of Cabinet – Jurisdiction of Supreme Cour
A* Bill to amend the Constitution to,provide that the term of the first Parliamentbe extended was referred to the Supreme Court for special determination interms of Article 122(1) of the Constitution. The Secretary to the Cabinet hadendorsed the Bill that in the view of the Cabinet it was urgent in the National interest.
The Supreme Court made and communicated the following determination: “Themajority of this Court is of the view that the period of the first Parliament ma>■be'extended as proposed by the Draft Bill which is described in its long title asbeing for the amendment of the Constitution and is intended.^ .passed withthe special majority required by Article 83 and submitted to the People b>Referendum. In view of this decision this Court in terms of Article 120 Proviso(b) states that it does not have and exercise any further jurisdiction in respectof the said Bill. Three members of the Court are not in agreement with theabove views."
Following this determination the Bill was passed with the special majorit required■ by- Article 83 and was submitted to the People at a Referendum.
The Petitioner alleged that the Supreme Court had made certain errors andtherefore the determination was invalid.
Held –
The determination was valid as the reasons were given in the determination.
Once the Cabinet of Ministers certifies that the Bill is to be passed by .■special majority and submitted to the People at a Referendum the SupremeCourt exercises no further jurisdiction.
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Bandt. mmkc v. Attorney-General (Sharvananda, J.l
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The majority ,ew is the view of the whole Supreme Court assembled.Cases referred to:
Grindley v. Bar’.’r (I97H) I BOS P 229
Picea Holdings London Rem Tribunal (19711’:’l A.F..R. Si 15.
PETITION for corrc non of alleged errors in determination of Supreme Courton urgent Bill refern I to it.
Felix R. Dias Banda’ maike – petitioner in person.
’ C 'u£8dv.‘'ult.
December 6, 1982.
SHARVANANDA. I. read the following unanimous orderof the Court:;
A Bill titled ‘Vi Act amend the Constitution of the DemocraticSocialist Republic if Sri Lanka" was referred to the Supreme Courtby His Excellency the,;President. in terms.;o,f,Article 122(l.)(b) of theConstitution, for the special determination of the Court as to whetherthe Bill or any prpj jsiQn thereof-was-, inconsistent with thej&gastitution.The Bill bore,-,.the. i.e®dor.sement under–she',hand of the-.Secretary..tothe Cabinet, that in the view of the Cabinet of Ministers, it was,urgent in the, tiaoopaj .intcrest Tho liiJA was certified in terms ofArticle 120(b).of;'he, Constitution by . the-Cabinet of Ministers thatthe said Bill was> intended to -be passed-with the special majorityrequired by Article 83 of the Constitution and submitted to thePeople by Referendum.
The Reference was considered on 3rd November 1982 by a Benchof seven Judges. ,t the hearing of the Reference, the petitioner and2nd petitioner-respondent were heard. Thereafter the Court madeand .communicatee the following determination in terms-of Article123(1) of the Constitution, to the President and to the Speaker ofParliament:
“The majonty of this Court is of the view that the period ofthe first Pai liament may be extended as proposed by the .draftBill which is described in its long title as being for theamendment of the Constitution and is intended to be passedwith thq;special majority required by Article 83 and-submittedto the People by Referendum. In, view of this decision thisCourt in terms of Article 120 Proviso (b) states that it doesnot have and exercise any further jurisdiction in respect of thesaid Bill.
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Three members of this Court are not in agreement with the
above views.”
Following on the above determination, the Bill has been passedwith the special majority required by Article 83 of the Constitutionand been submitted to the People by Referendum in terms of Article83(1) of the Constitution.
In«4us petition dated 10th November, 1482, the petitioner hasalleged that this Court has committed certain errors by reason olwhich no. valid determination has been made by the Supreme Courtupon the Reference made respecting the Fourth Amendment. Hehas moved this Court to exercise its inherent jurisdiction to takeaction, on the basis of that there has been no valid determination.
We gave the petitioner a full and patient hearing on his submission.
He urged three grounds in support of his contention that thedetermination of the Supreme Court was invalid, namely
that the determination of the Supreme Court has not beenaccompanied by the reason therefor, as required by themandatory provision of Article 123(1) of the Constitution.
that in view of .the fact that the Court had divided four;three in its determination, it should be presumed that theCourt entertained a doubt, as referred to in Article 123(3)of the Constitution.
that a valid determination requires unanimity among thejudges, the decision of the majority does not operate toconstitute a determination of this Court.
We have considered the contentions of the petitioner and we regretto state that the contentions are not well founded and have no merit.
Articles 120, 121, 122, 123, 124 and 125 of the Constitution spellout the nature and ambit of the constitutional jurisdiction vested inthe Supreme Court. They have to be read together and not in isolation.
Article 120 provides that the Supreme Court shall have sole andexclusive jurisdiction I .ermine any question whether any 3i;l
Randaranuikr r. Atlnrncy-(ietu’rul (Sharvanundo. J.l
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my provision thereof is inconsistent with the Constitution. The Articlemust be read subject to the provisos (a) to (d) which control it. Theprimary purpose of function of a proviso is to limit the generalapplication of the enactment. The proviso exempts the cases whichtall within its terms from the operation of the enacting clause.
Priviso (a) and (d) to Article 120 reads as follows:
in the case of a Bill described in its long title as bei«f5 forthe amendment of any provision of the Constitution, or forthe repeal and replacement of the Constitution, the onlyquestion which the .Supreme Court may determine is whethersuch Bill requires approval bv the People at a Referendumh virtue of the provisions of article 83:
Wherc the Cabinet of Ministers certifies that a Bill, whichi- described in its long title as being for the amendmentof any provisions of the Constitution, or for the repeal andreplacement of the Constitution, is intended to be passedwith the sjiecial majority required by Article 83 and submittedto the People by Referendum, the Supreme Court shallhave and exercise no jurisdiction in respect of such Bill.”
The questions that can arise as the nature words of a proposed Bill are:- I
I i Is it inconsistent with any provision of the Constitution?
Is the Bill for the amendment of any provision of theConstitution? (amendment includes, repeal, alteration andaddition: Article 82(7) ).
Is the Bill for the repeal and replacement of the Constitution ?
When a Bill or any provision therein is found to be inconsistentwith the Constitution, then the next question is how is it to beenacted into law: Is it sufficient to be passed by the special majorityrequired b Article 84(2), namely two third majority? or Does sucha Bill or any provision thereof require to be passed bv the specialmajority required by Article 84(2) and approved by the People at aReferendum in terms of the provisions of Article 83?- '
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Article 82(5) provides for the amendment of any provision of the!Constitution. It has to be read subject tolhe provisions of Article 83.
Article 82(5) states:
“A Bill for the amendment of any provision of the Constitutionor for the repeal! and'replacerflCrit of th'e Constitution; shallbecome law if the number of votes cast in favour thereof•amounts to not less than two^thirds Of the whttfe hUrtiber ofMembers (including those'not present) and upon a' certificateby the President or the SpCtfkeC’as the case rfnay be, beingendorsed thereon in accordance1 with the provisions of Article80 or 79.”
Article 83 states:
1'•Notwithstanding anything to the contrary in the provisions of Article82–
a Bill "for the amendment or for the repeal and replacementof Of! which is inconsistent'with any of the provisons ofArticle 1,2,3,6,7,8,9,10 and 11. or of this Article; and
a Bill for the amendment or for the repeal and replacementof or which is .inconsistent with the provisions of paragraph(2) of Article 30 or of paragraph (2) of . Article 62 whichwould extend the term of office of the President or theduration of President, as the case niay be, C'. over six years,
shall become law if the' numtier of .vbt.es cast in favour thereofamounts to not less than two-thirds of the whole number of Members(including those not present), is approved by the People at aReferendum and a certificate is endorsed thereon by the Presidentin accordance with Article 80.
Articles 82(5), 83(a) and 84 prescribe the wavs in which a Billwhich is inconsistent with any provision of the Constituion or whichseeks to amend any provision of the Constitution may be validlyenact&d into Law. Subject to the limitations contained in theseArticles it is competent for Parliament to pass any law, whether itis inconsistent with' any provision of the Constitution or seeks toamend any provision of the Constitution. The legislative power of
SCBandaranaike v. Attorney-General (Sharvananda. J.)791.
the People exercised by Parliament consisting of elected representative^of the People and by the People at a Referendum. (Vide Articles3 and 4(a) knows no legal limitation. There is no foundation whateverfor the contention of the petitioner that there is an area which isoutside the legislative power of the People, exercised by Parliamentand by the People at a Referendum.
Article 120 postulates that an amendment of any provision of theConstitution involves inconsistency with some provision of theConstitution. The provisos (a) and (b) to Article 120, are base?onthat assumption. Proviso (b) to Article 120 provides for the case ofthe amendment being intended to be passed with the special majorityrequired by Article 83 and submitted to the People by Referendum.The effect of that, proviso, is that when the Cabinet of Ministers socertifies with respect to the Bill, the Supreme Court, is relieved ofthe task of determining whether the Bill requires the approval ofthe People, at a Referendum. In view of the said certificate the Courthas only to be„.satisfied that the Bill can be enacted as proposed inthe certificate. On being, so satisfied, the Supreme Court exercisesno further jurisdiction in respect of the said .Bill. According to theproviso (b) to . Article 120 the Constitutional jurisdiction of theSupreme Court with respect to the proposed Bill is. confined to diequestion whether the Bill falls within Article 83 and whethe,r. thecourse1,of action-proposed by the Cabinet of Ministers with respectto the Bill conforms.'to .the requirements of the Constitution.
As stated earlier Article 122 .has to be read with Article 120 andwhen so read the reference by-the President under Article 122(b)attracts.provisions of Article 122(b) attracts provisions of Article. 120and. the-determination on such-reference is governed by Article. 120read with the relevant proviso. Article 121 and Article 122-prescribethe conditions for the invocation of the constitutional jurisdictionvested in the Supreme Court by Article 120 read with its provisos.On this view of the matter the provisions of Article 123(2) will applyonly in cases where the provisos to Article 120 do not apply.;. .
Article 123(1) states that the determination of the Supreme Courtshall be accompained by the reasons therefore. An intelligent readingof the determination of the majority, will show that the majority, ofthe Court were of the view that the period of the first Parliamentcould be extended by the process specified in the. certificate of-the
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Cabinet and that, in the circumstances, Article 120 Proviso (b) appliedto the determination in question. The reason for that conclusion ismanifest.
With respect to the alleged second error it must be stated thatneither the majority nor the minority had any doubt that the Billwas inconsistent with the Constitution. The difference of opinionwas grounded on the question whether the period of the firstParliament could be extended as proposed by the draft Bill; Hencearguments based on the supposition of the existence of such doubtare irrelevant.
The last ground has even less merit than the above. Articles118 to 136 in Chap. XV! of the Constitution deal with the variouskinds of jurisdiction of the Suprefne Court and the manner of theirexercise by the Supreme Court. Article 132(1) provides that thejurisdiction of the Supreme Court shall ordinarily be exercised at alltime by not less than three Judges of the Supreme Court sittingtogether on the Supreme Court. No distinction is made in this respectbetween, constitutional jurisdiction and appellate jurisdiction. Article132(4) provides that “the Judgment of the Supreme Court shall,when it is not an unanimous decision, be the decision of the majority.”In the scheme of the chapter, it is quite clear that the provisions ofArticle 132(4) applies equally to the “determination" referred to inArticle l2l, 122, 123, 125 ancf-126 and the “Judgment” referred toin Article 127, "opinion” ’ referred to in Article 129(1) and"determination”''under 129(2) and again to the “determination” underArticle 130, all made by the Supreme Court in the exercise of itsseveral jurisdiction. The petitioner tried to draw a distinction between“determination” and “judgment” and submitted that article 132(4)does not apply to the “determination” when it exercises originaljurisdiction and pronounces “judgment” when it exercises appellatejurisdiction. That this distinction is untenable is demonstrated byArticle 130 which provides that the Supreme Court shall have thepower to hear and determine and-make such orders as provided bylaw on any appeal from an order or judgment of the Court of Appealin the case of an election petition. The descriptions ‘determination’,‘judgment’, ‘opinion’ ‘decision’, ‘conclusion’ are different labels forthe same concept.
It is to be noted that the Court of Appeal when it gives judgmentin an election petition, it does so, in the exercise of original jurisdiction.
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Bandaranaike v. Attorney-General (Sharvtmanda. J.)
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The petitioner's submission further overoo.ks the well-establishedrule of law that “where a number of persons arc entrusted withpowers not of a private confidence, but in some respect of a generalnature, and all of them are regularly assembled, the majority willconclude the minority and their act will be the act of the whole".Grindley Vi. Barker (1), Picea Holdings Vs. London Rent Tribunal(2). Article 132(4) is based on this important rule of law.
There is no substance in the petitioner's allegation that this Courthad committed errors in making its determination.
The application is unwarranted.
We accordingly refuse notice of the application on the respondentand dismiss the application.
Notice refused.