014-NLR-NLR-V-64-M.-DON-ANTHONY-Appellant-and-THE-BRIBERY-COMMISSIONER-Respondent.pdf
Don Anthony v. The Bribery Commissioner
93
1962 Present :H. N. G. Fernando, J., and T. S. Fernando, J.
M. DON ANTHONY, Appellant, and THE BRIBERY(JOjMM LSSIONER, Respondent,
S. C. 3 ofBribery 'I'rihmud Case. No. Ufl. JOSfiiD
Appeal—Statute, enabling appeal to Supremo Court—Incapacity oj appellant toattack validity of the statute—Bribery Act No. 11 of 1954, as amended by ActNo. 40 of 195S—Appeal thereunder—Appellant cannot• attack validity ofentire Act.
Where an appeal is preferred to the Supreme Court, it is not competent forthe appellant to attack as invalid the very Act of Parliament which alone conferson him the right of appeal. Any rolief on the ground of the invalidity of theAct must bo found by a process other than appeal.
Accordingly, where the Bribery Act is attaoked as invalid, the right of appealconferred by the Act cannot bo exercised, and somo remedy other than appealshould be sought.
^_PPEAL under the Bribery Act.
M. Tiruchelvam, Q.C., with K. Thevurajah, for the accused-appellant.V. S. A. PuUenayegum, Crown Counsel, for the respondent.
Cur. aclv. vult.
April 5, 1962. T. S. Fernando, J.—
In Senadhira v. The Bribery Commissioner 1 this Court upheld anargument that the power given by the Bribery Act, No. 11 of 1954, asamended by the Bribery (Amendment) Act No. 40 of 195S, to a Bribery
1 (1961) 63 N. L. R. 313.
04
T- S. FERNANDO, J.—Don Anthony v. The Bribery Commissioner
Tribunal to pass sentence on a person accused of a bribery offence isultra vires the provisions of the Ceylon (Constitution) Order in Council,1046. It was there held
that the power given to a Bribery Tribunal to sentence a person
found guilty of having committed a bribery offence to aterm of imprisonment or to order such a person to pay apenalty amounts to the conferring on the Tribunal of ajudicial power whereas the members of such a Tribunal
have not been validly appointed to exercise such powers ; and
’ »*
the provisions of the Bribery Act conferring judicial power
on the Tribunals are distinct and severable from otherprovisions which confer other powers.
Sansoni J., with whom I agreed, in the case above referred to, war!inclined to think that the essential difference between arbitral powesand judicial power was that, while the function of the former was toascertain and declare, the function of the latter was not merely toascertain and declare but also to enforce the rights and liabilities sodeclared. Mr. Tiruchelvam has on this appeal sought to take theargument put forward in Senadhira’s case {supra) even further andhas contended that, rightly interpreted, a Bribery Tribunal, asconstituted under the relevant law, even at the stage of ascertainingand declaring liabilities of persons charged before it, purports to exercisejudicial power. It may be mentioned that in Senadhira’s case {supra)',Mr. H. V. Perera expressly conceded that a Bribery Tribunal acts not*unconstitutionally up to the point of finding a person brought beforeit guilty or not guilty of the specific offence alleged against, him;We are free to say that we found the argument presented to us byMr. Tiruchelvam not without attraction, but do not feel called uponto consider it here as we feel compelled to uphold the preliminaryobjection raised by learned Crown Counsel that it is not competentfor the appellant to attack as invalid the very Act of Parliament whichalone confers on him the right to appeal to this Court. Any relief onthe ground of the invalidity of the Act must be found by a process otherthan appeal. Crown Counsel's objection finds support in the observa-tions of the opinion of the Judicial Committee in the case of The King-Emperor v. Benoari Lai Sarma 1 and we must give way to it.
At the same time, however, we would on this appeal apply the decisionof this Court in Senadhira’s case {supra) and make order setting asidethe sentence of fine of Rs. 1000 imposed on him.
H. N. G. Fernando, J.—I agree.
Appeal partly allowed.
1 (1946) A. C. 14 at 20.