Fernando and Korunaralne v. The Queen
1970 Present:Lord Hodson, Viscount Dllhorne, Lord Wilberforce,
Lord Pearson, Lord Diplock
M. FERNANDO and L. M. ICARUNARATNE, Appellants,and THE QUEEN, Respondent
Privy Council Appeals No. IS of 1969 and No. 39 of 1970
S. C. 1/68 and 10/07—D. C. Colombo, B 27 and B 12
Bribery Act (Cap. 26)-—Sections 14 to 22, 29(a), 84, 87, 90—Conviction under s. 20 forbribery in relation to employment with the Ceylon Transport Board—Validity—Status of Ceylon Transport Board as a “ scheduled institution ”—MotorTransport Act No. 4S of 1957, s. 11—Addition of a scheduled institution bymeans of a provision in a Bill subsequent to dale of Bribery Act—Whethersuch provision can be passed by a simple majority in Parliament—Rule ofseverability—Ceylon (Constitution) Order in Council (Cap. 379), s. 29 (4).
Tho ofleet of section S7 of <ha Bribery Act which provides that “ Everyreference in this Act to tho Government shall bo construed as including aroforonco to a local authority nnd to every scheduled institution ” is to extendsoction 20 (a) (iv) of that Act so as to mako it an offonco for any porson tooffor or to accept a gratification for procuring or furthering the securing ofemployment in a department, oilico or establishment of a scheduled institution.
Section 84 of tho Bribery Act, whilo it ompowors tho Governor-General tonmond tho Sehcdulo by Proclamation and thus to add to tho list of schodulodinstitutions, does not in any way restrict tho power of Parliament to amend thoBribery Act so as to create additional schedulod institutions by-moans of aprovision in a soporato Act. It is not necessary that such separata Act, solong as it does not seek to amend or reponl any provision of tho Coylon(Constitution) Order in Council, should comply with the proviso to soction20 (4) of that Order in Council.
Section 11 of tho Motor Transport Act providing that “ tho Coylon TransportBoard shall bo doemod to bo a scheduled institution within tho moaning of thoBribery Act and tho provisions of that Act shall bo construed accordingly ” isvalid although that Act was passed by a simple majority. Such a provisionis severablo from s. 29 (a) of tho Bribory Act and doe3 not amend or repealany provision of tho Ceylon (Constitution) Order in Council. Accordingly, aconviction for bribery in relation to omploymont with tho Ceylon TransportBonrd would be valid.
Quaere, whether a person convicted of bribery in relation to omploymont withtho Coylon Transport Board is by law bound to sufTor the disqualification*imposed by soction 29 (a) of tho Bribory Act.
I*—K 2780—2,255 (4/7))
VISCOUNT DILHORNE.—Fernando and Karunaratne v. The Queen
Appeals from two judgments of the Supreme Court.
Eugene Colran, with II. de Silva, for the appellants.
E. F. N. Graiiaen, Q.C., with M. Solomon, for the respondents.
Cur. ado. wit.
December 1, 1970.(Delivered by Viscount Dilhorne)—
These appeals were heard together ns in each of them the same pointsarose for decision.
Fernando was indicted and convicted on the following charge :
“ That on the 16th day of July 19G3, at Narahenpita …, you
did accept from the said Malalagama Badalge Ariyasena a gratificationof a sum of Es. 1,000/- as an inducement for procuring employmentfor the said Malalagama Badalgc Ariyasena as a driver in anestablishment of the Government, to wit, the Ceylon Transport Board,and that 3011 have -thereby committed an offence punishable underSection. 20 of the Bribery Act. ”
Karunaratne was indicted and convicted on the following charges :—
‘1. That on or about the 7th day of December 19G0 at Hendalain the Division of Colombo, within the jurisdiction of this Court, youdid solicit a gratification of a sum of Its. 250/- from AnunabadaturugeDavid Singho as an inducement for procuring employment for thesaid Aruinabadaturugc David Singho in an establishment of theGovernment, to wit, the Ceylon Transport Board, and that you arethereby guilty of an offence punishable under Section 20 of the BriberyAct-.
2. That on or about the 13th day of December 19G0 at IVattala inthe Division of Colombo, within the jurisdiction of this Court, andin the course of the same transaction, you did accept a gratificationof a sum of Es. 250/- from the said Arumabadaturuge David Singhoas an inducement for procuring employment for the saidArumabadaturuge David Singho in an establishment- of theGovernment, to wit, the Ceylon Transport Board, and that you arethereby guilty of an offence punishable under Section 20 of the BriberyAct. ”
VISCOUNT DILHOBNE.—Fernando and Karnnaralne v. The Queen
S. 20 of the Briber Act, No. II of 1954, so far as material, rends asfollows :—
“ 20. A person—
(a) who offers any gratification to any person as an inducementor a reward for
(iv) his procuring, or furthering the securing of, anyemployment for the first mentioned person or for any otherperson in any department, office or establishment of theGovernment, or
(b) who solicits or accepts any gratification as an inducement ora reward for his doing any of the acts specified in sub-paragraphs … (iv) . .of jJaragraph (a) of this section,
shall be guilty of an offence jjunishable with rigorous imprisonmentfor a term of not more than seven 3’ears and a fine not exceeding fivethousand rupees. ”
The appellant Fernando was sentenced to three 3'ears rigorousimprisonment and a fine of Bs. 1,000/- and in default one 3-ear’s rigorousimprisonment.
The appellant ICarunaratne was sentenced on each count to one 3-ear’srigorous imprisonment to run concurrently and a fine of Bs. 250/-.
It was contended on behalf of the appellants that the Ceylon TransportBoard was not a department, office or establishment of the Governmentand that consequently their convictions were wrong and should bequashed. It was not disputed that the Cc3-lon Transport Board was nota department, office or establishment of the Government and that thecharges which alleged that it was were in this respect inaptly drawn.
S.87 of the Bribery Act reads as follows :—
“Every reference in this Act to the Government shall be construedas including a reference to a local authority and to every scheduledinstitution. ’’
Mr. Cotran with some temerity argued that s. 87 did not applyr inrelation to s. 20 (a) (iv) of the Bribery Act. In that sub-paragraphof s. 20 lie said that the words “the Government” were not to beinterpreted as including a local authority and a scheduled institution.
Their Lordships see no reason thus to restrict the operation of s. 87which is mandatory in its terms. It is not prefaced by the words “ Unlessthe context otherwise requires ”, and in their Lordships’ view the effect of
VISCOUNT DILHORNE.—Fernando and Karunaralno v. The Queen
b. 87 is to extend s. 20 (a) (iv) so as to make it an offence for anj' personto offer or to accept a gratification for procuring or furthering the securingof employment in a department, office or establishment of a scheduledinstitution.
“ Scheduled institution ” is defined in s. 90 of the Bribery Act to mean“any such board, institution, corporation or other body as is for thetime being specified in the Schedule to this Act. ”
The Ceylon Transport Board is not specified in the Schedule to theAct. By s. 84 the Governor-General was given power to amend theSchedule by Proclamation published in the Gazette- .If the Board hadbeen added to the Schedule by a Proclamation, a person would thereafterbe liable to conviction under s. 20 if he offered or accepted a gratificationin relation to the securing of employment with the Ceylon TransportBoard, and a person so convicted would suffer tlie disqualificationsimposed by s. 29.• –
S. 29 (a) provides that a person convicted or found guilty of briberyshall by reason of that conviction or finding become incapable for a periodof seven years from the date of conviction of being registered as anelector or of voting at any election under the Ceylon (ParliamentaryElections) Order in Council, 19-1G, or for a period of five years under theLocal Authorities Elections Ordinance, or of being elected or appointeda Senator or Member of Parliament or member of a local authority and.if at that date he has been elected or appointed as a Senator or Memberof Parliament or member of a local authority, his election shall be vacatedfrom that date.
Mr. Gratiacn for the Crown conceded that this part of this sectioneffected an amendment of the Ceylon (Constitution) Order in Council.S. 29 (4) of the Ceylon (Constitution) Order in Council, 1946, gave theParliament, of Ceylon power to amend or repeal any of its provisions butprovided that no Bill for the amendment or repeal of any of the provisionsof the Order in Council should be presented for the Loyal Assent unlessit was endorsed with a certificate under the hand of the Speaker that thenumber of votes in its favour in the House of Representatives amountedto not less than two-thirds of the whole number of the members of theHouse (including those not present).
The Bill which became the Bribery Act was presented for the RoyalAssent with the necessary certificate endorsed upon it.
S. 11 of the Motor Transport Act, Xo. 4S of 1957, provides that—
“ The Ceylon Transport Board shall be deemed to be a scheduled
institution within the meaning of the Bribery Act, Xo. 11 of 1954,
and the provisions of that Act shall be construed accordingly. ”
VISCOUNT DILHORNE.—Fernando and Karunaralnc v. The Queen
In their Lordships’ opinion the Bribery Act like any other Act ofCeylon could and can be amended by' the Parliament of Ceydon. Thefact that the Governor-General Avas by's. S4 of that Act given poAver toamend the Schedule’by' Proclamation and so could add to the list ofscheduled institutions in no Avay' restricted the poAvers of the Ceylon-Parliament.
If, hoAveA'cr, a Bill to amend the Bribery' Act sought to amend or repealany provision of the Ceylon (Constitution) Order in Council, then theproviso to s. 29 (4) of that Order in Council would haAc to be compliedwith and the Bill could not be presented for the Loyal Assent unless ithad endorsed upon it a certificate by' the Speaker that it had been passedwith the necessary majority'.
Mr. Cotran contended that s. 11 of the Motor Transport Act aa'usincffcctiA-e and inA'alid as that Act Avas passed by’ a simple majority. Hecontended that the result of the amendment Avould be that personscompeted of bribery in relation to employment Avith the Ccydon TransportBoard, assuming that s. 87 operated to makes. 20 (a) (iv) apply' to ascheduled institution, Avould suffer the disqualifications imposed by'S. 29 (a)which, as has been said, amended the Ceylon (Constitution) Order inCouncil. Persons so conA'ictcd Avould suffer greater disqualifications thanthey Avould other Arise haATe incurred under that Order in Council.
The A-alidity of this argument depends on Avhether s. 29 (ft) can beregarded as inseparable from s. 20 and the Schedule to the Bribery Act.
S. 20 and ss. 14-19 and 21 and 22 create criminal offences in relationto bribery and prescribe the punishments therefor. The inclusion ofs. 29 (ft) made it necessary that the Bribery' Bill should be passed by notless than a tAvo-thirds majority and have the Speaker’s certificate endorsedon it but if ss. 1-1-22 and the Schedule had been in a separate Bill, itcould not have been contended that such a Bill would require theSpeaker’s certificate before being presented for the Roy'al Assent. Clause29 (a) is clearly severable.
In these appeals the question for determination is Avhether a provisionin a Bill declaring that a body shall be deemed to be a scheduledinstitution Avithin the meaning of the Bribery Act, a provision Avhieh, ifvalid, Avould have the same effect as an amendment to the Schedule, makesit necessary' for that Bill to be passed byr not less than a tAvo-thirdsmajority' before being presented for the Royal Assent.
In their Lordships’ opinion the ansAver is in the negative. Such aprovision does not amend or repeal any' provision of the Ceylon(Constitution) Order in Council.
. In these appeals only the validity' of the convictions has been in issue.
It has not been necessary' to determine Avhether a person convicted ofbribery in relation to employment Avith the Ceylon Transport Board isby law bound to suffer the disqualifications imposed by s. 29 (a) of theBribery' Act, and their Lordships express no opinion on This point.
1**-K 2739 (4/71)
JT. IsT. G. FKR2srAJN'DO, C.J.—Nagaralnam v. Suppiah
Their Lordships are of the opinion that tho convictions were valid and■that the appeals should be dismissed. They will humbly advise HerMajesty accordingly.
E. M. FERNANDO and L. M. KARUNARATEN, Appellants, and THE QUEEN, Respondent