In re AGNES NONA

017-NLR-NLR-V-53-In-re-AGNES-NONA.pdf


106
In re Anges Nona
1931
Present :Dias S.P.J.
In re AGNES NONA
S. C..459—In Revision, M. C. Colombo South, 29,720
Criminal Procedure Code—Sections 328; 350 (2) 356—Interference by the Executivewith the Judiciary—Jurisdiction of the Supreme Court to revise proceedingsin such a case—Subjection of executive officers to jurisdiction of the Courts—Administrative law—“ Court ”—Judges of “ Minor Courts ”, when actingjudicially, only subject to Supreme Court, Privy Council and provisions ofStatute Law—Judicial v. Administrative functions of a Court—Rule of Law,
A Magistrate's Court convicted an accused and sentenced her to imprison-ment and fine. She appealed to the Supreme Court which affirmed the con-viction and sentence-; and the order of the Supreme Court, duly certified:under the seal of the Court, was transmitted to the Magistrate's Court forexecution in terms of section 350 (1) of the Criminal Procedure Code:!n the
meantime, the convict had petitioned the Governor-General for the remissionof her sentence. The Governor-General intimated to her and the Minister of'Justice that he was pleased to order her sentence to be remitted on the conditionthat she entered into a bond in a certain sum to be of good behaviour for acertain period. .
Before the Magistrate's Court could carry out the order of the SupremeCourt in terms of section 350 (2) of the Criminal Procedure Code, the Ministryof Justice addressed a communication to the Magistrate forwarding a copyof the order of the Governor-General (o) for the favour of “ necessary action ”and (b) requested the Magistrate to inform the Minister when the bond had'been executed.
1 (1915) 18 N. L. R. 229.» (1902) 6 N. L. R. 328.
* (1897) 3 N. L. R. 77.* (1908) 4 A. C. R. 8.
. DIAS S.P.J.—Tn re Agnes Nona
107
Held, (i) that this action by the Minister was irregular, and could be revisedby the Supreme Court under section 356 of the Criminal Procedure Code.
that the word “ Court " in section 350 (2) does not mean " Judge,” andthat a “ Court " when exercising powers under section 350 (2) can only actjudicially and not administratively.
that, unless a Statute provides to the contrary, every executive officerwho acts unlawfully is subject to the jurisdiction of the Courts of law whichhave power to determine what is the extent of his lawful power, and whetherthe orders under which he purported to act are legal and valid.
that there is no distinction between a “ slight " interference by theexecutive with the judiciary, and a “ major ” interference. In either case ■the independence of the judiciary would be affected, and the interference mustbecondemned.
that the “ Minor Courts ” in the performance of their judicial duties
sure subject only to the Supreme Court, the Privy Council, and the provisionsof the Statute law.‘,
that as the Governor-General’s order had been communicated to theaccused there was no need for the Minister to take any action in the matter.
This was a matter which was dealt with in revision under section 356-of the Criminal Procedure Code.
R. R. Crossette-Thambiah, K.C., Solicitor-General, with T. 8.■ Fernandoand A. Mahendrarajah, Crown Counsel, as amicus curiae.
M.ill. Kumarukulasingham, with M. A. M. Hussein, for the accused.
Cur. adv. vult.
September 13, 1951. Dias S.P.J.—
The accused, D. M. Agnes Nona, was convicted by the Magistrate ofColombo South on November 22, 1950, under section 354 of the PenalCode with kidnapping a child from lawful guardianship. The Magistrate,being of the view that “ girls of tender age require protection fromsuch enticement ” and that an “ adequate penalty should be imposed ”,sentenced the accused to undergo 5 months’ rigorous imprisonmentand to pay a fine of Its. 100, and in default of payment of the fine toundergo rigorous imprisonment for one month more.
The accused appealed against her conviction, and on April 24, 1951,the Supreme Court dismissed the appeal. The order of the SupremeCourt, duly certified under the seal of the Court, was transmitted to theMagistrate’s Court in terms of section 350 (1) of the Criminal ProcedureCode.
The duty of the lower court in such circumstances is provided bysection 350 (2) which reads:
“ The Court to which such order is certified shall thereupon make■ such orders as are conformable to the order so certified, and. if neces- •sory,‘ the record shall be amended in accordance therewith.”
The Magistrate’s Court received the record and the order of theSupreme Court in appeal on May 10, 1951. It thereupon ordered that theconvict and her surety should be noticed, for. May 24. On that day thewoman and her surety were absent, and the notices had not been served-
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DIAS S.P.J.—In re Agnes Nona
The Court thereupon issued a warrant on her returnable on June 8,and on that date she being still absent the warrant was reissued forJune 22. On June 22 the Court issued an open warrant.
On August 11,1951, the Court received a communication from
Air. N. Jj. Jansz purporting to be acting for “ S/J ”, who I assume isthe Permanent Secretary of the Minister of Justice. This communicationreads as follows:
No. B. 235/51.Mag., Colombo South—
M. C., Colombo South, No. 29,720
I forward herewith a copy of a memorandum for favour of neces-sary action.
Please inform me when the accused D. M. Agnes Nona has enteredinto the bond.
Colombo, 9.8.51.
(Sgd.) N. L. Jansz,
for S/J.
To this communication was appended a memorandum signed' by-Mr. A. C. M. Hingley, the Secretary to His Excellency the Governor- •General, which reads as follows:
9th August, 1951.
Reference No. M/J—R. 235/51.
M emorandum
With reference to her petition dated 15th May, 1951, in which sheprayed for the remission of the sentence of imprisonment imposedon her in Magistrate’s Court Colombo South Case No. 29,720, Mrs. D.M. Agnes Nona of Grero Place, T Vellawatta, is informed that HisExcellency the Governor-General has been pleased to order that thesentence of imprisonment and fine be remitted on the condition thatshe enters into a bond in Bs. 250, to be of good behaviour for a periodof One year.
By His Excellency’s Command,
(Sgd.) A. C. M. Hingley,Secretary to the Governor-General.
On receipt of this • communication the Court noticed the convict toappear to enter into the bond on August 28, 1951. Before that date,on August 13, the lady whose presence hitherto on process could not besecured, either on notice or warrant, appeared and the Court recorded'“ Order .communicated. Accused will enter into the bond. InformS/J after bond is entered into.”
Having seen a report of these proceedings in the daily press I con-sidered that this was a case in which I should call for and examine therecord of the proceedings under the powers which are undoubtedlyvested in every Judge of the Supreme Court by section 356 of the CriminalProcedure Code.
BIAS S.P.J.—In re Agnes Nona
100
On a perusal of the record it appeared tQ me that this was a case inwhich it was desirable that the relative legal position which the executivegovernment as represented by the.Minister of Justice bears towards theCourts should be clarified. The accused lady and the Attorney-Generalwere therefore noticed, and the matter has been fully argued.
The learned Solicitor-General argued that the Supreme Court hasissupd notice on the Attorney-General and the accused under a miscon-ception that there was here an interference by the executive governmentwilh the functions of the Magistrate’s Court. He also argued that thisCourt had no jurisdiction to deal with this matter because what wasdone by the Minister of Justice was “ an executive' act.” performed byhis subordinate in the course of -the Minister’s-powers to “ administerthe minor Courts, and was, therefore, not justiciable by the SupremeCourt under Chapter XXXI of the Criminal Procedure Code. Hefurther submitted that in the present case there was an executive actby Hig Excellency the Governor-General. There was no doubt thatHis Excellency had power to make the order he 'did make. On makingsuch order certain administrative procedure had to be followed, viz:the Governor-General’s order had to be communicated to the properauthority. If the accused was in gaol the Minister would have tocommunicate with the gaoler. If the prisoner was in the Mental Home,
■ the Minister would have to communicate with the Superintendent ofthe Mental Home. If the accused had not been committed to gaol,the Minister would have to communicate His Excellency’s order to theCourt concerned. In this case it was the last situation that arose, and,therefore, the Minister was justified in communicating -with the Magistrate.The learned Solicitor-General argued that, therefore, what was done "wassomething done in the course Of “ administrative procedure ”. tormatters concerned with administration the minor Courts are under thecontrol of the Minister of Justice. Therefore, the Minister was actinglawfully.
I will deal with the question of jurisdiction first. I entirely disagreewith the learned Solicitor-General’s argument that a Judge of the SupremeCourt has no jurisdiction under, section 356 to examine the record ina criminal case where there is reason to believe that there has beenimproper executive interference with the functions of a District Courtor a Magistrate’s Court. The argument of the Solicitor-General is thatthe jurisdiction of the Supreme Court is confined to considering the legalityor otherwise of a judicial order of a minor court. The submission isthat there is no judicial order in this case which can be revised. TheMagistrate’s Court -at this time was functus officio, and in giving effectto the communication of the Minister the Magistrate’s Court was notacting judicially but only in a ministerial capacity. Therefore, thejurisdiction of the Supreme Court to act under section 356 in this caseis ousted. The Solicitor-General admits that, assuming what the Ministerdid was improper or ultra vires, there would be no authority in thisIsland to correct that error. If that argument is right, then the Dominionof Ceylon would be the only place in the Commonwealth where a superiorCourt cannot consider whether an executive officer has exceeded hispowers in regard to a directive cdmmunicated to a minor Court.
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DIAS S.P.J.—In re Agnes Nona
As the jurisdiction of this Court has been challenged it is necessaryto consider this submission closely.
In section 356 the expression “ Supreme Court ” includes every Judgeof the Supreme Court. Section 356 empowers ■ a Judge of the SupremeCourt to call for and examine the record of any case. The section em-powers a Judge of the Supreme Court to call for a record whetheralready tried, or pending trial in any Court. The purpose for which therecord may be called for is to enable a Judge of -the Supreme Court tosatisfy himself as to the legality or propriety of any sentence or orderpassed therein, or as to the regularity of the proceedings of such Court.The section does not place any limitation with regard to the kind ofsentences, orders or proceedings which Can be revised.
The learned Solicitor-General argued that the order of the Magistratein this case was a purely “ administrative ” act, since the Magistratehas merely to carry, into effect the judgment and decree of the SupremeCourt, and is functus • officio in the sense that he no longer has any“ judicial ” duties to perform. Apparently then, on this argument,if the order is “ judicial ”, the Supreme Court has jurisdiction to exerciseits powers under section 356 to revise that order ; but not if the orderis ” administrative ”. The whole force of this argument, however,would' depend on the dividing line that must be drawn between the“ judicial ” and “ administrative ” powers and duties of Magistrates.In .England, an attempt wag made to define “judicial functions” inthe Report of the Committee on Ministers’ Powers 1 but it is now re-cognized that the Committee’s definition was formal and unsatisfactory.In fact, the Chairman of the Committee, Sir Leslie Scott (later Scott, L.J.),found it difficult to apply his own definition in Cooper v. Wilson e.“ The definition is based almost entirely on procedure ” and “on aformal theory of the separation of powers ”.3
In drawing such a distinction in Ceylon it is quite possible to drawthe contrast, in some other way, without resort to English experience,as the learned Solicitor-General apparently did, for he seems to classifythe acts of a Magistrate as being “ administrative or “ judicial ”according to whether the acts are ministerial or. discretionary. Sucha distinction however' is untenable because it is arbitrary and has nowarrant for its,use, and moreover it is incorrect in the light of our ownstatute law.
Section 2 of the Criminal Procedure Code defines the expressions“ District Court ” and “ Magistrate’s Court ” so that they bear thesame meaning as the word “ Court ” in section 2 of the Gourts Ordinance,while the words “ District Judge ” and “ Magistrate ” are separatelydefined- In my opinion, the Legislature intended to contrast themeaning of these two sets of words by separate definitions, so that thewords “District Judge ” and “Magistrate” refer to the person whooccupies the office—irrespective of the nature of his powers and duties,while the words “ District Court ” or “ Magistrate’s Court ” refer to
» (1932) <Cmd. 4060.
3 li937) 2 K. B. 309. See Jennings : “ The Law and the Constitution ”, pp. 274—280.
* Jennings : The Law and the Constitution, p. 277.
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DIAS S.P.J.—In re Agnes Nona
the District Judge or Magistrate—Twhen the powers and duties which heexercises are judicial in character. In his book “ The Daw and theConstitution ” (3rd edition), p. 277, Sir Ivor Jennings makes the follow-ing comment:“ If the functions of a Criminal Court $re judicial, they
remain judicial in spite of- the power of the Crown to issue a free pardon,or of the House of Lords after a certificate from the Attorney-Generalto reverse the decision on appeal Thus, where the Criminal ProcedureCode confers statutory powers and duties upon a “ District Court ”or “ Magistrate's Court ”, it follows that the powers and duties con-ferred ' must necessarily have a judicial character and nothing else;although if on the other hand the powers and duties had been conferredby the Code on a District Judge ” or “ Magistrate ”, it is possiblethat they may-be “ administrative ” in some cases.
The word ** Court ” in section 350 (ii) of the Criminal Procedure Codemust necessarily refer to a district Court or as in this case to a Magistrate’sCourt, and must therefore mean that the Legislature intended theJudge or Magistrate to exercise " judicial ” powers and duties underthis section.- Even if the powers of the Supreme Court acting in revisionare limited to “ judicial ” orders only—a proposition which. I ct*motaccept—-I would hold on the very argument of the learned Solicitor-General that the Supreme Court has jurisdiction and the power to revisethe order of the Magistrate in this case.
It is a characteristic feature of modern democratic government inthe Commonwealth that unless a statute provides to the contrary, officialsor others are not exempted from the jurisdiction of the ordinary tribunals.As the late Professor Dicey puts it 1—“ There can be with us nothingreally corresponding to the ‘ administrative law ’ (droit administratif) .of France ”. He says: “ With us every official from the Prime Ministerdown to a constable or a collector of taxes is under the same responsibilityfor every act done without legal justification as any other citizen. Theminister or servant of the Crown who takes part in giving expressionto the Soval will is legally responsible for the act in which he is con-cerned; and he cannot get rid of his liability by pleading that he actedin obedience to royal orders. Now—supposing that the act done is illegal,the minister concerned in it becomes at once liable to . proceedingsin a Court of law. Hence indirectly, but surely, the action of every servantof the Crown, and, therefore, in effect of the Crown itself, is brought-under, the supremacy of the law of the land. Behind Parliamentaryresponsibility lies legal liability, and the acts of ministers no less thanthe acts of subordinate officials are made subject to the Rule of Law. . .and the ordinary Courts have themselves jurisdiction to determine what isthe extent of his legal polver, and whether the orders under which he actedwere legal and valid.” 2.
therefore, hold that this Court has jurisdiction to deal with thismatter, and I will jerform that duty fairly and impartially.
Turning to the second question as to whether there has been any im-proper interference by the executive with the Magistrate’s Court ofColombo South, I would recall the words of Scrutton, L.J., in R v.
1 The Law and the Constitution (9 th Edition), p. 203.
* See Dicey, pp. 193, 326,'389.
I3-N.L.R. VoL-Liii
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DIAS S.P.J.—In re Agnes Nona
Superintendent of Chiswick Police Station, ex parte Sacksteder 1: “Xapproach the consideration of this case with the anxious care whichHis Majesty’s Judges have*always given, and I hope will always give,to questions where it is alleged that' the liberty of the subject accordingto the law of .England has been interfered with . . . This jurisdictionof His Majesty’s Judges was of old the only refuge of the subject againstthe unlawful acts of the Sovereign. It is now frequently the only refugeof the subject against the unlawful acts of the Executive, the higherofficials, or more frequently the subordinate officials …” These wordswere quoted with approval by Abrahams, C.J., in the case In re Brace-girdle 2 when he said ” I conceive that it is no less the duty of HisMajesty’s Judges in this Island to afford the same protection, but Ithink it is not out of place to bear in mind that we must proceed withthe utmost impartiality and caution lest we unduly fetter the legitimateaction of the Executive.” It must also be remembered that in thelast resort it is the Courts which are the final bulwark of the independence.of this Dominion. It is furthermore the duty of the Supreme Court,while not fettering the legitimate action of the Executive, to uphold,mafcitain and protect the independence of the minor Courts which inthe performance of -their duties should only be subject to the SupremeCourt, the Privy Council and the provisions of the Statute Law.
If we turn to The Ceylon (Constitution) Order in Council, 1946 (here-after referred to as the “ Order in Council ”) it will be found that theGovernment of Ceylon is dealt with under four heads: (a) The GovernorGeneral—sections 4-6 ;(b) The Legislature—sections 7-44 ;(c) The
Executive—sections 45-51; and (d) the Judicature—sections 52-56.
The powers of the Governor-General are to be found in the Letters 'Patent issued to him, in the Royal Instructions, in section 4 of theOrder in Council, and in the Statute Law which may impose dutieswhich he is to perform. The powers of the Legislature are to legislate“ for the peace, order and good government of the Island ” subject towhat is stated in section 29 of the Order in Council. The powers of theJudicature are not defined by the Order in Council. These powersare to be gathered from various statutes like the Courts Ordinance, theCivil and Criminal Procedure Codes, and from the established practiceof the Courts. The powers of the Executive are likewise' not definedby the Order in Council. All that one can say is that the powers of the‘‘Executive ” are the residue of_ the functions of government after thelegislative and judicial functions of the government have been takenaway—see 6 Hailsham art. 432, p. 385, and Jennings: Law and TheConstitution, p. “273.
With regard to the judiciary, the Courts can come into contact withthe “ executive ” in various' ways. In regard to the appointment,transfer, dismissal and disciplinary control of Judges of the minorCourts, these functions are exclusively vested in a body designated“ The Judicial Service Commission ’’—Section 55 of the Order in Counoil.In order to ensure that- Judges of the Minor Judiciary will' be perfectlyindependent and free to perform their, lofty .duties' without • fear, the
{1918) 1 K.B. at p. 689.
(1937) 39 N. L. R. at p. 206.
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Order in Council provides that the three Commissioners of the JudicialService Commission shall be the Chief Justice and two others, one otwhom shall be a Judge of the Supreme Court, and the other “ who shallb», or shall have been a Judge of the Supreme Court Therefore, inall matters connected with the, appointment, transfer, dismissal anddisciplinary control of the District Judges, Commissioners of Bequestsand Magistrates,theMinisterof Justice hasnocontrol or concern
whatever. In section 6 of the Minute of the Judicial Service Commission(see Civil List for 1951—p. 396) it is stated: “ For the purposes ofleave and general administration the Service will be under the generalcontrol of the Judicial Service Commission ”. I am unaware whetherthe functions of the Minister of Justice and of his Ministry have beenclearly defined 1.Thegenerally accepted viewisthat inter alia he
controls the “ administrative ” functions of the various legal depart-ments. The various Courtsfor purposesofadministration are
independent departments whose official head is the individual who forthe time being is at the head of that department, except in the case ofths Supreme Court. The Begistrar of the Supreme Court is the -depart-mental head ofthe SupremeCourt Begistry.Ifthe Minister is of
opinion that an additional Judge should be appointed to a particularminor Court, his decision will be communicated to the Judicial ServiceCommission whose duty it will be to make the requisite appointment.In the case of acting appointments, by a construction of the law theMinister of Justice claims to have the right to appoint such officers.The appointment of the subordinate staff of a Court,- the emolumentsto be paid to judicial officers, the hours during which the office of theCourt should be open, &c., would fall within the powers of the Minister.These “ administrative ” powers are difficult to define, and there mayarise cases in which the Minister may inadvertently overstep the boundsand encroach either on the functions of the Judicial Service Commissionon the one hand, or on the judicial functions of the Court on the other.Tn cases where there is ground to believe that the Minister has improperlyencroached on the judicial functions of a Court, it is the undoubted rightof the Supreme Court to examine the position, and fearlessly to say so,if there has in fact boen any illegal encroachment.
Applying these principles to the case before me we find that D. M.Agnes Nona, as she was entitled to do, sent a petition dated May 15,1951, to His Excellency the Governor-General praying for the remissionof her sentence. Under section 10 of the Letters Patent His Excellencyhas the right to “ remit the whole or any part of the sentence passed onher ” subject to the requirement in section 3 of the Boyal Instructionsthat before he does so, His Excellency must first receive “ the adviceof one of his Ministers ”, in this case, obviously, the Minister of Justice—sec also section 328 Criminal Procedure Code. That His Excellencyreceived such advice appears to be clear from the reference made to" No. M/J—B. 235/51 ” in the memorandum dated August 9, 1951,addressed by His Excellency’s Secretary to the Ministry.
1 See Ceylon Government Gazette Extraordinary No. 9,7SO of September 29, 1947, wherethe Prime Minister has assigned to various Ministers certain subjects and functions. One ofthe subjects and functions assigned to the Ministers of Justice is the" Administration of thkCotarts of Justice (other than the Supreme Court) ”…
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DIAS S.P.J.—In re Agnes Nona
His Excellency’s order-is that Mrs. D. M. Agnes Nona is informedthat His Excellency the Governor-General has been pleased to orderthat the sentence of imprisonment and fine be remitted on the conditionthat she enters into a bond in Us. 250 to be of good behaviour for a periodof one year If I may say so with respect, that appears to be a lawful' order. But, one must observe what His Excellency■ did not say. He didnot directbefore whom that bond was tobe executed bythe convict.
Let usassume that at the time theintimation wasreceived bythe
Ministry,the Magistrate’s Court actingunder section350 (2) ofthe
Criminal Procedure Code had committed the lady to gaol in accordancewith theorder of the Supreme Court.The learnedSolicitor-General
admits that in such a case, the Minister would address the gaoler whohad custody of the prisoner, who would communicate to her the termsof the order of the Governor-,General.
Before whom is that bond to be executed? I am unaware of anyprovision of the Criminal Procedure Code or of any other law, nor wasany authority cited, which under such circumstances would justify the-lady being taken before any Court for the execution of the bond -whichwas the condition imposed by His Excellency the Governor-General forthe remission of the imprisonment and fine. Section 82 of the CriminalProcedure Code empowers a Magistrate to order a. person to enter into abond to be of good behaviour under the circumstances described in thatsection. This is not that case. The same applies to section 83. Section325 (1) of the Criminal Procedure Code empowers the Magistrate in acase which is being summarily tried before him without proceeding toconviction to order the prisoner to enter into a recognizance with or withoutsureties to be of good behaviour and to appear for conviction and sentencewhen called upon at any time during the period stated in the bond.Obviously section 325 cannot apply to a convicted person. The Governor-General did not direct that the bond should be executed before any parti-cular person or officer, and it is open to question whether he had power tomake such an order. A fortiori the Minister of Justice has no such power,nor would the gaoler be justified in taking the lady before the Magistrateand demanding his assistance to carry out the condition imposed byHis Excellency. The fact that the Magistrate’s Court had not yetcommitted the prisoner to gaol in my opinion makes no difference.
It will be seen that whenever the assistance of a Court is requiredby'the executive,-'the law is careful to make it_ the duty of the Courtto render such assistance. Section 3 of the Boyal Instructions provides". Where any offender shall have been condemned to suffer death by thesentence of any Court, the Governor-General shall cause a report to bemade to him by the Judge who tried the case, and he (the Governor-General) shall forward such report to the Attorney-General with instruc-tions that after the Attorney-General has advised thereon, the (Judge’s)report shall be sent', together with the Attorney-General’s advice, tothe Minister whose function it is to advise the Governor-General on theexercise of such powers.” S.ection 309 (p) of the Criminal ProcedureCode imposes a statutory duty on the trial Judge to make that reportto the executive. The sub-section reads:“ So soon as conveniently
.may be after sentence – of death has been pronounced, the Judge who
DIAS S.P.J.—In re Agnes Nona
116
presided at the trial . . . shall forward to the Governor-General a copyof the notes of evidence taken on the trial, with a report in writingsigned by him setting out his opinion whether there are any and whatreasons why the sentence of death should or should not be carried out. ”With these provisions should be contrasted two other cases where thejudiciary and the executive often come into contact.
Except in the case of a juvenile offender who has been sentenced tobe birched, the proviso to section, 316 (1) of the Criminal ProcedureCode provides that no sentence of whipping “ shall be inflicted untilthe Governor-General has made order thereon, and the execution of thesentence shall be subject to, and in accordance with such order.-”Unlike in the case of a death sentence, there is no statutory duty caston the judiciary to make a report in the case of a sentence of whippingto the executive. Therefore any General Order or direction by theexecutive government calling for such a report would be irregular andimproper. Until recently it had been the practice for Judges of theSupreme Court to report cases of whipping to the executive, ' but itslegality was questioned, and although the Legal Secretary thought thatit was a convenient practice, it was dropped.
There is also the case of a prisoner who is found incapable of pleadingto the charge owing to unsoundness of mind, and also the case of theperson who is acquitted on the ground that he was insane at the timethe alleged criminal act was committed—see sections 369 (2) and 374.In both these instances there is a statutory obligation imposed on thetrial Judge to report the ease to the Governor-General. I believe that'by some regulation or rule in such cases the Judge, including Judgesof the Supreme Court, is now expected not to report such cases to theGovernor-General but to the Minister. It is unnecessary to express anopinion as to the legalitj' or otherwise of this procedure.
The point to be noted, however, is that whenever on grounds of publicpolicy it is considered expedient that the Judge should render assistance-to the executive, the law provides for it in unmistakable terms by imposinga statutory duty on the judge bo do so.
In the present case when an officer of the Ministry addressed a memo-randum to the Magistrate’s Court forwarding a copy of His Excellency’sorder " for favour of necessary action ” and also demanded that theMagistrate’s..Court should “ inform me when the accused Agnes Nonahas entered into the bond ”, I am of opinion that the Minister, probablyinadvertently, exceeded his powers and was acting unlawfully. I donot agree with the learned Solicitor-General that the Minister underhis powers of, ” administering ” the government office known as theMagistrate’s Court of Colombo South, had any power to give directionsto the Magistrate’s Court which was exercising statutory powers undersection 350 (2) of the Criminal Procedure Code 1. This Magistrate’sCourt as a Court was not . under the administrative control of the Minister.All that the Minister could legitimately do was to forward the Governor-General’s memorandum to be communicated to her. He had no lawfulpower either to direct the Magistrate’s court to “ take necessary action.”,
1 See the Law and the Constitution (3rd Edition) by Sir Ivor Jennings, pp. 270—284.
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Rahiman v. Pitch at Kagoo
.or to ask that Cpurt to intimate to him when the bond was executed.It was for the convict or her legal advisers to • fulfil the conditions im-posed. Furthermore, it appears that the Secretary to His Excellency theGovernor-General addressed to the lady a communication similar to the oneaddressed to the Minister of Justice. It was therefore for the convict or herlegal advisers,withoutanyfurther intimation from the Minister of
Justice, to have brought His Excellency’s communication to the noticeof the Court and to have asked for time to fulfil the conditions. Therewas no need for the intervention of the Minister of Justice.
I therefore pronounce to be illegal that part of the Minister’s memo-randum whichrequiredtheMagistrate’sCourt to perform such acts.
The Solicitor-General concedes that if the Minister has, in fact, actedillegally, thereis no distinction- betweena slight interference by the
executive with the Judiciary and a major interference. In either case,the independence of the Judiciary would be affected and must becondemned.
The question as to what order must be made in these circumstancescauses difficulty. The Governor’s lawful order has been illegally carriedout. The normal procedure would be to quash all the proceedings andto restore the status quo ante which existed before the Minister's com-munication reached the Magistrate’s Court. I do not think I shouldso order in this case, because the person whose sentence has been re-mitted is nowlawfully atliberty. Theprinciples applicable to this
case having now been clarified, I therefore think that no further orderis called for in the circumstances of this ease.
No further order.