Suntharalingam v. The Attorney-General
Present: H. N. 6. Fernando, C.J., G. P. A. Silva, S.P.J., and
SUNTHARALINGAM', Petitioner, and THE ATTORNEY-GENERALand 2 others, Respondents
8.of 1972—Application for Injunction
Injunction—Proceedings of ■ Constituent Assembly—Supreme Court cannot orderdiscontin.lance of such proceedings.
In on application to obtain an injunction to prevent and prohibit the Ministerfor Constitutional Affaire " from taking any steps to repeal the Ceylon(Constitution and Independence Ordere-in-Council, 1946 and 1947) and tosubstitute therefor a Constitution entitled a * Constitution of Sri Lanka ’ ”—Held, that a Court cannot consider the validity or otherwise of a newConstitution, unless and until a now Constitution is established or purportedto be established.
Application for an Injunction against the Attorney-General and
the Minister for Constitutional Affairs.
Suntharalingam, the relator-petitioner, in person.
Cur. adv. vull.
H. N. G. FERNANDO, C.J.—StCntharalingam v. The Attorney-General 127
February 7, 1972. H. N.G. Febnando, C.J.—
The purpose of this Application is to obtain an injunction from thisCourt to prevent and prohibit the Minister for Constitutional Affairs“ from taking any steps to Repeal the Ceylon (Constitution andIndependence Orders-in-Council, 1946 and 1947) and to substitute therefora Constitution entitled a 1 Constitution of Sri Lanka ”
The same petitioner made a previous application naming aB respondentsthe Honourable Sirimavo R. D. Bandaranaike and the othermembers of the Cabinet. In that application the petitioner soughtorders restraining the respondents from conducting the proposedproceedings of the Constituent Assembly aB convoked and created by aResolution of the members of the House of Representatives passed on19th July, 1970. That application was refused by my judgment dated13th February, 1971, my brother Wijayatilake agreeing. The PrivyCouncil thereafter refused leave to appeal from that judgment withoutreasons stated. In these circumstances it has to be assumed that thePrivy Council confirmed or adopted the reasons stated in the formerjudgment for the refusal of the petitioner’s previous application, and wetherefore considered ourselves bound by that judgment.
The operative passage in the former judgment, which indeed has beenrelied on by the petitioner on the present occasion, is the following :—
“ If and when such a new Constitution is established or is purported
to be established, one of two possible situations will in my opinion
That the new Constitution is a legal and valid instrument whichwill in law supersede the Constitution and Independence Orders-in-Council which are presently law; in which event a challenge ofthe validity of the new Constitution will be fruitless.
Alternativelyi if the true position be, that the new Constitutionestablished by the Constituent Assembly does lack legal force andvalidity, and if a competent Court will have jurisdiction so topronounce, the occasion for the making of such a pronouncement-can arise only after the Constitution is established or purports tobe established, and only in a proceeding in which the validity ofsome provision of the Constitution properly and actively arises fordetermination.”
It is clear from this passage that the ground for the refusal of theprevious application was that a Court cannot consider the validity orotherwise of a new Constitution, unless and until a new Constitution ibestablished or purported to be established. That contemplated eventhas not yet occurred.
The petitioner has relied on the provision contained in s. 48 (2) of thedraft of a new Constitution which has been published in the Gazette of29th December, 1971, and he has submitted that the position has materiallyaltered in view of that provision. This submission has apparently
Platt Ltd. t>. Ceylon Theatres Ltd.
found favour with one of the two Judges who made a preliminary orderon this application on 21st January, 1972. The draft Section 48 (2)provides as follows :—
“ No institution administering justice nor any other institution,person or authority shall have the power to inquire into or pronounceupon the validity of any law of the National Assembly. ”
If this draft provision does eventually become operative, its effect willbe that no Court will have power to declare • any law of the NationalAssembly to be invalid. The petitioner is apparently of the view thatthis draft provision will preclude also a challenge of the validity of theproposed new Constitution ; and it iB in anticipation of this possible eventthat the petitioner claims that the position haB “materially altered",and that the alternative mentioned in paragraph (2) of the passage inmy former judgment will not be available.
The alternative there stated is the possibility of the new Constitutionbeing declared invalid if a competent Court will have jurisdiction so topronounce. This statement clearly contemplated the possible positionthat a court may not have such a jurisdiction. It iB therefore not correctto say that there is or will be any altered position which the formerjudgment did not take into consideration.
Hence the grounds on which the petitioner's previous application wasdismissed apply equally in the case of his present application. In bothoases his purpose is the same, namely to prevent, the new Constitutionfrom being established or being purported to be established.
For these reasons we dismissed the application.
Silva, S.P.J.—I agreer*
Alles, J.—I agree.
C. SUNTHARALINGAM, Petitioner, and THE ATTORNEY-GENERAL and 2 others, Respondent