E. P. PIYADASA, Appellant, and THE BRIBERY COMMISSIONER, Respondent

064-NLR-NLR-V-64-E.-P.-PIYADASA-Appellant-and-THE-BRIBERY-COMMISSIONER-Respondent.pdf


TAMBIAH, J.—Piyadasa v. The Bribery Commissioner
385
1962Present: Tambiah, J., and Sri Skanda Rajah, J.
*
E. P. PIYADASA, Appellant, and 'PR1 to BRIBERYCOMMISSIONER, Respondent-'S. C. 3 of 1962—Bribery Tribunal Case No. 30(1. 307j60
Bribery Tribunal—Incapacity to try persons for offences of bribery—Lackof capacity of Legislature to create tribunals vested with judicial power—“ Judicial power ”—Appeal preferred under Bribery Act—Right of SupremeCourt to entertain it—Bribery Act No. 11 of 1054, as amended by Act No. 40of 1058, ss. 28, 42, 47, GO (J), 68, GOA—Ceylon (Constitution) Order-in-Couucil,1946, 83. 29, 30 (J), 45, 52, 55—Ceylon Independence Act, 1047.
A Bribery Tribunal, constituted under the Bribery Act No. 11 of 11)54, asamended by Act No. 40 of 1958, consists of members not appointed by tlioJudicial Service Commission and is, therefore, not compotent not only toimpose a sentence on the person charged before it but oven to i^^ostigato andpronounce judgment in respect of the charge. The Legislature ha3 no power,except by an appropriate amendment of the Ceylon (Constitution) Order-in-Council, 1946, to create a tribunal and confer upon it judicial power exercisedby the Supremo Court or by judicial officers appointed by the Judicial ServiceCommission under section 55 of the Constitution Order-in-Council.
It is competent for the Supremo Court to entertain an appeal preferred to_ it in terms of section 69A of the Bribery Act. Don Anthony v. T-he BriberyCommissioner (1962) 64 N. L. It. 93, not followed.
Appeal under the Bribery Act.
No appearance for the accused-appellant.Basil White, Crown Counsel, for respondent.MTiruchelvam, Q.G., as amicus curiae.
Cur. adv. vult.
October 31, 1962. Tambiah, J.—
The appellant was prosecuted before the Bribery Tribunal, constitutedunder the Bribery Aet, No. 11 of 1954, as amended by the Bribery(Amendment) Act, No. 40 of 1958, on four counts involving charges ofbribery and was convicted on all four counts and sentenced to three months’rigorous imprisonment, the sentences to run concurrently. At the hearingof the appeal, the appellant was neither present nor was he represented bycounsel. Mr. Basil White, Crown Counsel, appeared for the respondentand at the invitation of this Court, Mr. M. Tiruchelvam Q.C., was kindenough to assist as amicus curiae.
Lxrv
2R. 6863—1,856 (12/02)
38ftTAMBIAH, J.—PiyacLasa v. Tho Bribery Commissioner
Mr. White contended that in view of the decision in Don Anthony v. TheBribery Commissioner1 the appeDant had no right of appeal. Hefurther contended that if this Court should hold that the Bribery Tribunalhad no jurisdiction to pass the sentence, then it must also go to tho extentof holding that it has no power to try and convict the appellant in thiscase. Mr. Tiruchelvam submitted that the case of Don Anthony v. TheBribery Commissioner (supra) was wrongly decided and urged that thisCourt could entertain this appeal. He also submitted that the BriberyTribunal is an unconstitutional body which had no power to try, convictor punish persons charged before it.
In Don Anthony v. The Bribery Commissioner (supra) the Supreme Courtheld that no appeal lies from the order of the Bribery Tribunal to anappellant who contends that the Act itself is ultra vires. The learnedjudges in that case relied on the ruling of their Lordships of the PrivyCouncil in the case of The King-Emperor v. Benoari Lai Sarma 2. Inthe latter case, it was held that the Special Criminal Courts Ordinance(Indian) No. 2 of 1942, which purported to create special criminal courtsduring a period of Emergoncy, was ultra vires since the provisions of thatAct were in conflict with the provisions of the Indian Constitution. Thisspecial Ordinance did not give a right of appeal to the High Court. Fromthe decision of the special tribunal the matter was brought by way ofrevision to the High Court and from thence there was an appeal to theJudicial Committee of the Privy Council. In repelling an argumentthat a special court had no jurisdiction since all the provisions of SpecialCriminal Courts Ordinance (Indian) (supra) were ultra vires, their Lord-ships of the Privy Council rightly took the view that if the provisions of theBiauuce were invalid, then those provisions which constituted the specialtribunal were also null and void and, consequently, the Judge, who sat inthat Court, did so in his capaoity as a private citizen. Further, sinceLevisionary powers were given, under the general statutes of India, toHigh Courts to revise errors committed only by courts of law, no revi-. sionary power existed in the High Court to revise the orders of privatepersons who purported to act as j udges. Another distinguishing feature inBenoari’s Case was that there was no right of appeal given bystatute to the High Court. The present case, however, is distinguishablefrom Benoari's case. The section of the Bribery Act (supra) which givesa right of appeal from the decisions of the Bribery Tribunal to the SupremeCourt is intra vires. Tho Legislature, having constituted the BriberyTribunal, made its orders justiciable by the Supremo Court (vide section86A). We see no reason why this Court should be deprived of the rightof hearing this appeal from an order of a statutory body when such aright has been conferred specifically by the Bribery Act.
The objection taken in the case of Senadhira v. The Bribery Commis-sioner 8 was of a similar nature. The counsel for the appellant in thatoase made it dear that he was not attacking all the provisions of the
»(1962) 64 N. 1. B. 93.
• (1961) 63 N. L. R. 318.
1 (1945) A. O. at 20.
TAMBIAH, J.—Piyadasa v. The Bribery ComdiiSeHonsr387;…
Bribery Act, as amended, as ultra vires, but was onlft Bhbmitting that theprovisions of the Act empowering the tribunal to pass^CTi^nCe^on jKirsong.charged before it were vUra vires as they conflicted witK^fh^Coj^titjcrtibn.’of Ceylon. The learned judges in Senadhira's case agreed with the con-tention of the respondent’s counsel and held that they had jurisdictionto hear the appeal.
A Legislature can pass an enactment, some of the provisions of whichare ultra vires, while others are intra vires. The contention that all theprovisions of the Bribery Act, as amended, are null and void musttherefore necessarily fail. We hold that the appellant has a right ofappeal in the instant case.
Although the appellant was not present at the hearing of the appeal,nor was he represented, nevertheless it is the duty of this Court to considerthe appeal on its merits as if it is an appeal from the decision of a .DistrictCourt in Criminal Cases (vide section 69 (a) of the Bribery Act, No 11 of1954, as amended by Act No. 40 of 1958, which brings into operationsections 339-352 of the Criminal Procedure Code (Chapter 20)).
The competency of the Bribery Tribunal, consisting of members notappointed by the Judicial Service Commission, to try persons chargedbefore it, convict and to sentence them received the earnest considerationof the judges in the case of Senadhira v. The Bribery Commissioner (supra).In that case, Sansoni, J. (with whom T. S. Pern an do, J., agreed), heldthat the power given to the Bribery Tribunal by section 66 (1) of theBribery Act (as amended) to inflict a fine, convict and imprison a personcharged before it, was unconstitutional since such power, being exclusivelya judicial power, can only be exercised by the Supreme Court, or by ajudicial officer appointed by the Judicial Service Commission, in terms ofsection 55 of the Ceylon Constitution (Order-in-Council) 1946. Thelearned judges, however, were of the opinion that the Bribery Tribunalcould investigate and pronounce a judgment on a question of fact assuch an investigation and pronouncement is the exercise of an arbitralpower.
This case raises a constitutional point of great importance. It is hardlynecessary to state that the Ceylon Constitution, being a written consti-. tution, is paramount legislation which can only be amended (and. that,too, only in certain respects) by a two-thirds majority of the members ofthe House of Representatives, as provided by section 29 (4) of the CeylonConstitution (Orders-in-Council) 1948 (hereinafter referred to as theOrder-in-Council).
The legislative powers of the Ceylon Parliament, as contained in section29 of the Order-in-Council, is not that of a sovereign legislature (videThe Constitution of Ceylon—Sir Ivor Jennings (Oxford Press) p. 22and 23), inasmuch as it derives its author*'^ from the Order-in-Councilwhich imposes certain fetters on its powers of legislation (vide alsoobservations of Sinnetamby, J., in P. 8. Bus Co., Ltd. v. Members and
388TAMBIAH, J.—Piyadasa v. The Bribery Commissioner
Secretary of Ceylon Transport Board 1). When a statute creates a Parlia-ment, it cannot act contrary to the terms of the statute ("vide Harris v.Minister of the Interior 2). Section 29 (2) and (3) prohibit the Parliamentfrom passing certain discriminatory legislation, except by a two-thirdsmajority of the members of the House of Representatives. Section 39of the Order-in-Council states that every measure passed by the Parlia-ment will have to be assented to by the Governor-General asthe representative of Her Majesty the Queen. As a constitutionalmonarch, the Queen, through her representative seldom withholds herassent, but if it appears to Her Majesty’s government in the UnitedKingdom that “ any law which has been assented to by the Governor-General and which appears to Her Majesty’s Government in the UnitedKingdom—(a) to alter, to the injury of the stock-holder, any of theprovisions relating to any Ceylon Government stock specified in theSecond Schedule to the Order ; or (6) to involve a departure from theoriginal contract in respect of any of the said stock ”, then the assentgiven by the Governor-General may be disallowed by Her Majesty througha Secretary of State, and ceases to have the force of law (vide section 39 (1)of the Order-in-Council).
The question in whom the judicial power of the State is vested bythe Order-in-Council, could only be looked for in the entrenched provisionsof the said statute. English decisions throw little light on this questionas the legal position in England is different (vide Courts and Judgments—Presidential Address of Sir Carlcton Allen, published by the HoldsworthClub of the Birmingham University 1959, p. 2, et seq.).
The three functions of a government, legislative, executive, and judicialfirst adumbrated by Aristotle, and later developed by other jurists, are •clearly recognised in the Order-in-Council, though no rigid partitionshave been built to separate these functions from one another. (Compare,however, the positions in America and Australia ; vide Shell Co. of Austra-lia v. Federal Commissioner of Taxation 3 ; Marthineau v. City of Montreal* ;Labour Relations Board of Saslcatchewan v. John Eastern Iron Works, Ltd. 0
Part II of the Order-in-Council deals with the appointment and func-tions of the Governor-General. He is authorised to execute all powers,authorities and functions of Her Majesty, as she may be pleased to assignto him. These powers are exercised, subject to the provisions ot theOrder-in-Council and any other law for the time being in force, as far asmay be in accordance with the constitutional conventions applicable tothe exercise of similar powers, authorities and functions in the UnitedKingdom. Part III of the Order-in-Council deals with the Legislatureand confers on it the legislative powers of the State. This functionagain, has to be exercised subject to the provisions of the Order-in-Council.
The first Schedule of the Order-in-Council states that the Colonial LawsValidity Act, 1865 does not apply to any law made after the appointedday by the Ceylon Parliament. It also empowers the latter to make laws
1 (195S) 61 N. L. R. 491 al 493.* (1931) A. C. 275.
1 (1952) South African Law Reports, p. 428.4 (1932) A. C. 113.
*(1949) A. C. 134.
TAMBIAH, J.—Piyadasa v. The Bribery Commissioner
389
having extra-territorial application. These provisions are taken almostverbatim from the Statute of Westminster (vide—Constitution ofCeylon; Sir Ivor Jennings, p. 129).
Partjv deals -with the Executive. Section 45 states that “ the execu-tive power of the Island shall continue to be vested in.His Majesty andmay be exercised on behalf of His Majesty by the Governor-Generalin.accordance with the provisions of this Order-in-Couhcil and any otherlaw] for] the time being in force ”. This section is based on section 42of the Minister’s Draft and was re-drafted. Neither in Part HI nor inPart IV is judicial power conferred on the Legislature or Executive.
The provisions of the Order-in-Council, which vests the executive powerin Her Majesty, enshrine the well-known principle that executive poweris vested in Her Majesty throughout the Commonwealth. In Ceylon,however, as well as in other Dominions, Her Majesty exercises theseexecutive powers through her representatives (vide Constitution ofCeylon by Sir Ivor Jennings, p. 192). The Letters Patent of 1947determine the distribution of powers between the Queen and the Governor-General and empowers the Governor-General “ to appoint all such judges,Commissioners, Justices of the Peace and other officers as may lawfullybe constituted or appointed by me ”. This power, again, has to beexercised subject to the provisions of the Order-in-Council.
Part VI of the Order-in-Council deals with the Judicature. Section52‘{1) empowers the Governor-General to appoint a Chief Justice, PuisneJustices of the Supreme Court and Commissioners of Assize. It statesthat! the judges of the Supreme Court hold office during “ good behaviour ”(not] “ at pleasure ”) and can only be removed for misconduct by theGovernor-General on an address by the Senate and the House of Repre-sentatives (vide section 52 (2) ). The age of retirement of a Supreme
ji
Court judge is fixed by Statute at sixty-two years (vide section 52 (3)).The!salaries of the Supreme Court judges have to be determined by theParliament and are charged on the Consolidated Fund (vide section 52 (4)),and cannot be diminished during their terms of office (vide section 52 (6) ).
These statutory provisions, ensuring the independence of the judiciary;are. based on the English practice that the judiciary should not be sub^jected to any extraneous interference. Blackstone, as early as 1768;(vide Blackstone’s Commentaries of 1768) states that the “legislativepower ” is vested by the English constitution in Parliament, “ the execu-tive* power in the King or Queen ”. With regard to the judicial power,he said “ By long and uniform usage of many ages, our Kings have dele-gated their whole j udicial power to the Judges of their several courts. .. Andin order to maintain both the dignity and independence, of the judgesin the superior courts, it is enacted by the statute (13 Will III c. 2) thattheir commissions shall be made (not as formerly durante, bene placito,but)^ qvumdiu bene se gesserint, and their salaries ascertained and estab-lished ; but that it may be lawful to remove them on the address of bothhouses of Parliament. And now,, by the noble improvements of-that
2*-tR 0803 (12/62)
300
TAMBIAH, J.—Piyadasa v. The Bribery Commissioner
law^m. the statute of 1 Geo III, c. 23, enacted at the earnest recommenda-tion of the King himself from the throne, the Judges continued in theiroffices during their good behaviour, notwithstanding any demise of theCrown (which was formerly held immediately to vacate then* seats), andtheir full salaries are absolutely secured to them during the continuanceof their commissions ; His Majesty having been pleased to declare, ‘ thathe looked .upon the independence and uprightness of the Judges asessential to the impartial administration of justice, as one of the bestsecurities of the rights and liberties of his subjects ; and as most conduciveto the honour of the Crown
A consideration of the relevant portions of the Order-in-Council andother statutes shows that the judicial power exercised by the civil courtsof this country, when the Order-in-Council came into operation were infact, conferred on the Judges, of the Supreme Court and . the judicialofficers appointed by the Judicial • Service Commission, although nospecial mention has been made therein to this effect (vide Senadhira’scase (supra) and the Queen v. Liyanage and others 1).
At the time the Order-in-Council came into operation, a SupremeCourt, already clothed with certain powers, rights and duties, existed. Ithad original jurisdiction to try offences, appellate jurisdiction to correcterrors of the lower Courts and, inter alia, jurisdiction to issue prerogativewrits. It was not necessary, therefore, for a re-definition or re-statementof these general powers, rights and duties of the Supreme Court, in theOrder-in-Council. The Ceylon Independence Act, 1947, adopted theprovisions of the Order-in- Council of 1946, with certain changes, as theConstitution of Ceylon.
The Order-in-Council. created the Judicial Service Commission andempowered only this statutory body to appoint judicial officers. Aconstitution must be interpreted by attributing to its words the meaningwhich they bore at the time of its adoption and in view of the commonlyaccepted canons of construction, its history, early and long-continuedpractices under it (vide Lois Myers v. United States (12.10.1026) 2).
When section 52 of the Order-in-Council made it obligatory for theGovernor-General to appoint the Chief Justice, Puisne Justices and theCommissioners of Assize, it recognised the existence of the SupremeCourt which was first created by the Charter of 1801 and later continuedby the Charters of 1833 and the Courts Ordinance (Cap. 6).
•The precise question for decision in this case is whether the Legislature,could take away the “ judicial power ”, vested by our Constitution onthe Supreme Court and officers appointed by the Judicial Service Commis–sion, and formerly exercised by the Civil Courts, and confer the- sameon- tribunals otherwise appointed, without amending the Constitution.We are of the opinion that the Legislature cannot do so, or, for that■matter, even create tribunals presided by persons not appointedby the Judicial Service Commission, which have [concurrent juris-!diction with the Supreme Court or Courts presided over by Judicial1 (1962) 64 N. L. R. 313.2 United Stales Reports, 52 at 237.■ ■
TAMBIAH, J.—Piyadasa v. The Bribery Commissioner391'.
Officers appointed by the Judicial Service Commission. Indeed, if sucha course was open to the Legislature, then it would venture to createtribunals with greater powers and jurisdiction than those of the above-mentioned Courts. If judicial power could.be conferred on persons otherthan judicial officers appointed by the Judicial Service Commissionthen' the provisions in the Order-in-Council relating to the JudicialService Commission would be rendered nugatory.' Any departure fromthese salutary provisions of the Order-in-Council, ensuring to the citizenthe independence of the Judiciary, will no doubt lead to malpractices.Ajs'Blackstone states (vide Blackstone’s Commentaries Vol. 1 at p. 269),
“ Initbis distinct and separate existence of the judicial power in a peculiarh'ody of men, nominated indeed, but not removable at pleasure by theCrown, consists one main preservative of the public liberty which cannotsubsist long in any state, unless the administration of. common justicebe; in some degree, separated both from the legislative and also from theexecutive power. Were it joined with the legislative, the life, libertyand property of the subject would be in the hands of arbitrary judges,whose decisions would be then regulated only by their.opinions, andnot' by. any fundamental principles of law; which though legislatorsmay depart from, yet judges are bound to observe. Were it joined withthe executive, this union might soon be an overbalance for the legislative.”(cited with approval by SansoDi, J., in Senadhira’s case (63 N. L. It. atp. 318)).
The expression “judicial power” needs elucidation. The definitionof this term has caused much difficulty and has been the subject matterof controversy both among jurists and judges, (vide Courts and Judg-ments—Presidential Address of Sir Carleton Allen—published by theHoldsworth Club of the Birmingham University (1959).) In The Water-side Workers' Federation of Australia v. J. W. Alexander Ltd.1 Isaacand Rich JJ., referring to arbitral power, said as follows :
/ i 1
“ That is essentially different from judicial power. Both of themrest for their ultimate validity and efficiency on the legislative power.Both presuppose a dispute, and a hearing of investigation, and adecision. But the essential difference is that judicial ‘power is concernedwith the ascertainment, declaration and enforcement of the rights andliabilities of the*parties as they exist, or are deemed to exist; at the momentthei proceedings are instituted ; whereas the function of arbitral power is. to ascertain and declare, but not to enforce, what, in the opinion of the. arbitrator ought to be the respective rights and liabilities of. the parties in. relation to each-other
t-••
% •
This dictum has been approved by the Judicial Committee of thePrivy Council (vide Attorney-General for Australia and the Queen v. TJieBoiler Makers' Society of Australia 2 and also by our Courts (vide Senadhirav. The Bribery Commissioner (supra) per Sansoni, J., at page 319).
1 (1918) 25 Commonwealth Reports 434 at 463. ■* (1957) A. C. 288 at 310.
392TAMBIAH, J.—Piyadasa v. The Bribery Commissioner
,1a the Shell Company of Australia v. Th>. Federal Commission ofTaxation1 Lord Sankey L.C., having posed the question what is judicialpower, answered it as follows :
“ Their Lordships are of opinion that one of the best definitionsis that given by Griffiths, C. J., in Huddard, Parker 6s Co.v. Moorhead 2,where he says “ I am of opinion that the words * judicial power ’ asused in section 71 of the Constitution, means the power which everysovereign authority must of necessity have to decide controversies betweenhis subjects or between itself and its subjects, whether the rights relate tolife, liberty or property. The exercise of this power docs not beginuntil some tribunal which has power to give a binding and authoritativedecision, whether subject to appeal or not, is called upon to take action.”
In Senadhira's Case, the judges applied the test of execution as thehall-mark of judicial power (vide 63 N. L. B>. at p. 319 per Sansoni, J.).But Wynes states (vide Legislative, Executive and Judicial power byWynes (2nd Edition) The Law Book Co. of Australasia Pty. Ltd., p. 562)that “ enforcement would not be a necessary attribute of a court exer-cising judicial power ”. For example, the power of execution mightnot belong to a tribunal yet its determination might amount to theexercising of a judicial power. In the United States, it does not appearthat a power of enforcement is regarded as an essential element of judicialpower (vide Nashville G 6s St. L. Railway Co. v. Wallace 3; United Statesv. West Virginia* ; Tutanv. United States5).
Wo shall proceed to examine the relevant provisions of the Bribery(Amendment) Act, (ISTo. 40 of 195S), with the view of determining whetherthe Legislature had overstepped, perhaps by an oversight, the limitationprescribed by the Ordcr-in-Council. Section 5 of the Bribery Act, as un-amended, empowers the Attorney-General, if he was satisfied that therewas a prima facie case of bribery, to indict the offender, if he was not apublic servant, before the Supreme Court, or the District Court. Whenthe alleged offender is a public servant, two courses were open to theAttorney-General. He could either indict the alleged offender beforethe Courts above-mentioned, or arraign him before the Board of Inquiryconstituted under the Bribery Act.
Far reaching changes were brought about by the Bribery (Amendment)Act, No. 40 of 1958. This Act abolished trials before the Supreme Courtand the District Courts and also inquiries before Boards of Inquiry ;it established what arc known as “ Bribery Tribunals ”, presided overby officers not appointed by the Judicial Service Commission but by theGovernor-General on the advice of the Minister of Justice. These" Bribery Tribunals ” were constituted for “ trials of persons for bribery ”(vide section 42) " with power to hear, try and determine any prosecutionfor bribery made against any person before the tribunal ” (vide section47). The offences of bribery specified in Part II of the Act are punishable1 (1937) A. C. 275 at 295.3 (1933) U. S. 249:
4 8 Commonwealth Law Iteports 330 at 357.* (1935) U. S. 463.
* (1926) U. S. 270.
TAMBIAH, J-—Piyadasa v. The Bribery Commissioner
393
with, rigorous imprisonment for a term not exceeding seven years or afine, not exceeding five thousand rupees, or both, and these offendersare ho longer triable by the Supreme Court or the District Court.
' : 1
, Section 28 of the same Act, as amended, provides that the sentence ofimprisonment passed by a Bribery Tribunal on a person found guiltyby it, would be treated as if the sentence was one which was passed by aCourt of Law. The Bribery Tribunals could also inflict a fine or penalty;such a fine or penalty could be recovered by the Attorney-Generalby an application made by him to the District Court. Section 68 of theBribery (Amendment) Act (supra) empowers the Bribery Tribunalto enforce its authority and obedience. Any disregard or disobedienceto its authority, committed in its presence, or in the course of theproceedings before, it, is declared punishable as contempt. For thispurpose, it has been conferred with the same powers as those conferredon a Court of Law by section 57 of the Courts Ordinance and Chapter 65of the Civil Procedure Code.
AJ brief survey of the abovementioned and other provisions of theBribery Act, as amended, clarly show that the Legislature has purportedto create a tribunal and has conferred upon it the judicial powerexercised by the Supreme Court and the minor Courts presided over byjudicial officers appointed by the Judicial Service Commission.
Lord Atkin, commenting on the British North America Act of 1887,which protected the independence of the judges of Canada by makingprovisions that judges of the superior, district and country courts shouldbe appointed by the Governor-General and that by enacting that judgesof the superior Courts should hold office during good behaviour and alsotheir salaries should be fixed by Parliament and not reducible, utteredthe following pregnant words : ft These are three pillars in the templeof justice and they are not to be undermined ” (vide Toronto Corporationv. York Corporation1).
Sansoni, J., in Senadhira's Case proceeded to add a fourth pillar to thetemple of justice in our legal system, namely, the Judicial Service Com-mission (vide 63 N. L. It. at page 318). Could this Court, which hasjealously guarded the rights of the citizen for so long, allow the erectionof another “ temple of justice ” which is unauthorised by the Order-in-Council.
The Bribery Tribunals were constituted under the amending. Act(No. '40 of 1958) for the “ trials of persons for bribery ” (vide section 42)*' with powers to hear, try and determine any prosecution for briberymade against any person before the tribunal ” (vide section 47), If nojudicial power could be conferred on the Bribery Tribunal, except by anamendment of the Order-in-Council, then we fail to see how it could tryand hear persons charged for bribery and determine the issue therein.
1 (1938) A. C. 415.
394 SRI SKANDA RAJAH, J.—Piyadasa v. The Bribery Commissioner
•. There is no provision in the Bribery Act, as amended, which statesthat the Bribery Tribunal can inquire .and come to a finding. There isno provision in its constitution for us even to construe it as. a factfinding commission. Bribery is an offence still justiciable and punishableby the Supreme Court and the minor Courts under the Penal Code.
.In Senadhira’s Case (supra), the question whether the Bribery Tribunalcan try persons charged before it for bribery was not fully investigatedas this point was conceded by the counsel for the respondent in that case,.A “ trial ” is the conclusion, by a competent tribunal, of questions inissue, in legal proceedings whether civil or criminal (vide Stroud’sJudicial Dictionary (3rd Edition) Vol. 4, page 3092).
In view of our finding that the Bribery (Amendment) Act (No. 40 of195S) conferred no judicial power on the Bribery Tribunal, we are of theopinion that it has no power to try persons for offences of bribery, as theword “ try.” and other words used in this context can only be usedwhore a tribunal is vested with judicial power.' ’ ■
Therefore we are in agreement with Mr. White’s contention that theBribery Tribunal has no jurisdiction to try and find the accused guiltyof the offence of bribery. For these reasons we set aside the convictionand acquit the accused.
Snr Skanda Bajah, J.—
I have had the advantage of reading the judgment prepared by mybrother Tambiah and I agree that the conviction should be quashed andthe accused acquitted.
As the questions which we are called upon to decide are of someimportance I wish to add a few observations.
Crown Counsel submitted that, in the event of our . holding that theaccused has a right of appeal, the Bribery Tribunal had no power notonly to impose a sentence on the appellant but even to.try and/or convicthim.
When we saw Mr. Tiruchelvam, who appeared for the appellant in thejDon Anthony Case 1 and whose argument in that case was “ not withoutattraction ” to the learned judges who decided that case, we invitedhim to assist us. He submitted that the preliminary objection, basedon the observations of their Lordships of the Privy Council (1945 AppealCases 14), raised by Crown Counsel both in the Senadhira2 and DonAnthony Cases, were untenable and that the Bribery Tribunal is anunconstitutional body.
In the Senadhira Case, counsel for the appellant contented himself inlimiting his submission to the power of the Bribery Tribunal to passsentence as being ultra vires. He indicated that he was not going toarguo that the Bribery Tribunal was an unconstitutional body.
1 G1 C. L. W. J00.a GO C. L. W. 65.
395
SRI SKANDA RAJAH, J.—Piyadasa v. The Bribery Commissioner
By the very terms of the Ordinance tinder which Benoari Lai Sanaa 1was; charged and tried by a Special Magistrate there was no right of appealto the High Court. The matter was taken to the High Court by way ofrevision under the provisions of the Code of Criminal Procedure. Itwas;pointed out by their Lordships of the Privy Council that this could _have been done only on the assumption that the court below was a validCourt and, therefore, having moved the High Court on that assumptionit was not open to the accused to challenge the Ordinance, which broughtinto existence such court, as invalid.
t
That is not the position in this case. Here the Bribery Act itself gives?the accused the right to appeal to the Supreme Court. In my view,therefore, the preliminary objection, based on the passage in the BenoariLai Sarma Case, raised in the two cases under reference, if I may say sowith respect, is untenable. The accused has the right to appeal.
. J «
I may add that even when an Act expressly provides that the juris-diction of a court to try an offence shall not be called in' question in anycourt whether by way of writ or otherwise it is still open to this Court toconsider whether that particular provision is ultra vires the Legislature(vide—The Queen v. Liyanage et al. 2).•
In the Senadhira Case as the appellant’s counsel did Dot argue that theBribery Tribunal was an unconstitutional body the court was not called
upon to' consider that question.
1
i* •;*.
I would respectfully agree with the finding in that case that the Bribery
Tribunal was not validly constituted to receive judicial authority andany exercise of judicial power by it is invalid, being in breach of section55 of the Ceylon (Constitution) Order-in-Council, 1946.
When by section G8 of the Bribery Act the Legislature purported toempower the Bribery Tribunal to punish any act of contempt committedin the course of the hearing of any charge of bribery as provided bysection 57 of the Courts Ordinance and Chapter LXV of the Civil Pro-cedure Code, i.e., as a contempt of Court, a power which hitherto residedsolely in the Judicature, it intended in unmistakable terms, to ’ vestthe Bribery Tribunal with judicial power even at the stage it tries, anaccused and/or convicts him. This is clearly a violation of section 55 ofthe Ceylon (Constitution) Order-in-Council. Therefore, the_ BriberyTribunal is an unconstitutional body and all proceedings before .it arenull and void.
i
' p045) A. C. 14.
Appeal allowed.
* (19G2) 64'N: A n: 313:r..