M. M. A. PASANGNA, Appellant, and THE REGISTRAR-GENERAL and another, Respondents

010-NLR-NLR-V-67-M.-M.-A.-PASANGNA-Appellant-and-THE-REGISTRAR-GENERAL-and-another-Respondents.pdf


Present: T. S. Fernando, J., G. P. A. Silva, J.,
and AUes, J.
M. M. A. PASANGNA, Appellant, and THE REGISTRAR-GENERAL and another, Respondents
S. G. 47(1963—.D. 0. (Criminal) Matale, 868/X
Registration of bi ths—Son born to an Indian Tamil resident registered as a citizenof Ceylon—Registration of his birth in Register of Births—Should the “ race ”of the -parents be described as “ Indian Tamil " or as “ Ceylon Tamil ” ?—Meaning of term '* race ”—Distinction between “ race ” and “ citizenship ”—Irtdicm and Pakistani Residents (Citizenship) Act (Cap. 350), ss. 6 (2) (iv) (a),18—Births and Deaths Registration Act (Cap. 110), ss. 10 (1), 28 (1) (b)—Citizenship Ac*, s. 13.
Interpretation of statutes—Importance of a Schedule appended to an Act—Effect ofpreamble.
An Indian Tamil resident registered as a citizen of Ceylon under the provi-sions of the Indian and Pakistani Residents (Citizenship) Act is by race anIndian Tamil, and not a Ceylon Tamil, in the contemplation of the term “ race ”in cages (4) and (5) of Form A in the Schedule, read with section 10, of theBirths and Deaths Registration Act.
Further, quite apart from the special meaning given to ** Indian Tamils ”as being a race in the Births and Deaths Registration Act, it would not beinappropriate nor without justification to call the Indian Tamils a race. There-fore, the conferment of Ceylon citizenship on an Indian Tamil, althoughit changes his nationality and citizenship, does not have the effect of changinghis race. The accent in section 6 (2) (iv) (a) of the Indian and PakistaniResidents (Citizenship) Act is, as is made clear by the preamble to the statute,on the words “ civil and political status ”, which is a necessary attribute ofoitizenship and not an attribute of race.
A son born to a person registered as a citizen of Ceylon under the Indianand Pakistani Residents (Citizenship) Act dees not suffer any prejudice, inrespect of his ’•ights under that Act, from the mere fact that, in the BirthRegister, the race of his father or mother is described as “ Indian Tamil ”.
A provision in a Schedule referred to in a section of a Statute is as import-ant as a provision in the Statute itself and would cease to prevail only in theevent of repugnance to a provision in the main Statute itself.
The preamble of a Statute may legitimately be consulted when interpretingany section of the Aot whose meaning is not clear.
Appeal from a judgment of the District Court, Matale. On accountof a difference of opinion between the two Judges before whom thisappeal first came up for argument it was listed before a Bench of threeJudges in terms of section 38 of the Courts Ordinance.
The petitioner-appellant, his wife and their four children had beenregistered on 18th March 1954 as Citizens of Ceylon under the Indianand Pakistani Residents (Citizenship) Act. In the present application
made under the provisions of section 28 (1) (b) of the Births and DeathsRegistration Act the petitioner sought to have the birth registrationparticulars of his son born on 30th September 1960 altered as to thefather’s race and the mother’s race from “ Indian Tamil ” to CeylonTamil ” in cages (4) and (5) of the Register of Births. It was contendedon behalf of the appellant that, by virtue of the provisions of section18 of the Indian and Pakistani Residents (Citizenship) Act, a personwho is registered as a citizen under the Act became entitled to thesame rights and subject to the same liabilities as any other citizen ofCeylon and also that, by reason of such registration, the appellant andhis wife were Ceylon Tamils on the day of the birth of the son whoseregistration was in question.
M. Tiruchelvam, Q.C., with T. Somasunderam and Mark Fernando,for Petitioner-Appellant.
R. Hector Deheragoda, Senior Crown Counsel, with A. B. de S. Wije-setcera, Crown Counsel, for Respondents-RespondentB.
Our. ad9. wit.
February 12, 1965. G. P. A. Silva, J.—
The petitioner-appellant made an application to the District Courtof Matale to have certain particulars of entries made by the Registrarof Births, Matale, in respect of the registration of the birth of his sonbom on 30.9.1960, altered in terms of section 28 (1) (b) of the Birthsand Deaths Registration Act (Chapter 110 of the Legislative Enact-ments of Ceylon). The said particulars, so far as they are relevant to thepresent appeal, consisted of the alteration of the particulars as to thefather’s race and the mother’s race from “ Indian Tamil ” to “ Citizenof Ceylon Tamil ” in cages (4) and (5) of the Register of Births.
The evidence of the petitioner before the District Court was that he,his wife and their four children were, on 18.3.1954, registered as Citizensof Ceylon under the Indian and Pakistani Residents (Citizenship) Act(Chapter 350 of the Legislative Enactments of Ceylon). He producedthe certificate relating to their registration as Citizens of Ceylon and therewas no dispute in regard to this matter. In cross-examination, however,the petitioner stated that both he and his wife were bom in India andthat they were Indian Tamils by race and that he was a subject of India,being bom of parents who lived in India, before he obtained citizenshiprights in Ceylon. It would appear from the evidence that the relevantparticulars in the Register of Births in regard to a son born on 4.10.1954after he became a Citizen of Ceylon had been entered in the way thepetitioner desired, namely, as “Ceylon Tamil”. It was contended onbehalf of the respondents, the Registrar-General and the AssistantProvincial Registrar of Births and Deaths, Matale, that the alterationsdesired by the petitioner should not be made. The learned District
Judge upheld the respondents’ contention and refused the applicationholding that the acquisition of citizenship rights by any person didnot involve a change in his race, the petitioner having admitted thathe and his wife were Indian Tamils by race.
The appellant has appealed to this court from the decision cf thelearned District Judge inter alia on the ground that, by virtue of theprovisions of section 18 of the Indian and Pakistani Residents (Citizen-ship) Act, (Chapter 350 of the Legislative Enactments cf Ceylon), aperson who is registered as a citizen under the Act becomes entitledto the same rights and subject to the same liabilities as any other citizenof Ceylon and also that, by reason of such registration, the appellantand his wife were Ceylon Tamils on the day of the birth of the son whoseregistration was in question. For these reasons, the appellant prayedfor an order setting aside the order made by the learned District Judgeand requiring an alteration of the words “ Indian Tamil ” to “ CeylonTamil ” in cages (4) and (5) of the Register of Births referred to. Onaccount of a difference of opinion between the two Judges of this courtbefore whom the appeal first came up for argument it was listed beforeus in terms of section 38 of the Courts Ordinance.
Primarily, in this appeal, the law which this court is called upon tointerpret is a provision contained in the Births and Deaths RegistrationAct. It is necessary that the provisions of any Act should be read togetherwith any Schedules referred to therein as well as any Forms giventhereunder. A Schedule has often even greater importance than aprovision in the Act itself, for a Schedule or a Form contained thereinmay clarify a provision that is otherwise doubtful. It is stated in Craieson Statute Law (Sixth Edition) at page 224, that the Schedule in aStatute is as much a part of the Statute and is as much an enactmentas any other part, and that if an enactment in a Schedule contradictsan earlier clause it prevails against it. Maxwell on “ Interpretation ofStatutes ” (Eleventh Edition) at page 156, says that where a passage in aSchedule to a Statute is repugnant to one in the body cf the Statutethe latter would prevail. Earlier at page 143 it is stated, “ Clearprovisions in the Schedule to an Act cannot be limited either by thetitle to that Schedule, or by a section in the Act itself reciting the purposefor which the Schedule is enacted”. The conclusion to be drawn fromthese principles of interpretation is that what is provided in a Schedulereferred to in a section in the Act is as important as a provision in theAct itself and would cease to prevail only in the event of repugnance toa provision in the main Act itself.
The Births and Deaths Registration Act, a non-compliance of theprovisions of which is complained against in this appeal, lays doVn insection 10 (1) that it shall be the duty of every Registrar of Birthsand Deaths to register accurately and with all convenient despatch inthe registers provided by the Registrar-General the particulars of thematters set out in forms A and B of the Schedule. Form A relates to
registration of births while Form B relates to registration of deaths.Cage (4) ofFoim A requires the Registrar to give the following particularswith regard to the father of the child which is being registered :—
Full name :
Date of Birth :
Place of Birth :
Race:
Rank or profession :
Cage (5) requires him to enter the same particulars as regards the motherof the child. To the particulars regarding “ Race ” in each of the cages(4) and (5) is attached a foot note numbered 2 to the following effect :
“ Tamils or Moors must be described as ‘ Ceylon ’ Tamils or Moors,or c Indian * Tamils or Moors, as the case may be.” An application ofthe rule of interpretation referred to in the last paragraph to the factsof this case would lead to the conclusion that it is imperative that theprovisions of the Schedule containing a Form which lays down in clearterms the particulars to be entered should be complied with, there beingno specific provision in the Act itself which conflicts with such compli-ance. In regard to the particulars as to race the Registrar made theentry “ Indian Tamil ” in both cages (4) and (5) as he considered itto be the only compliance with section 10 and Form A in the Scheduleand the learned District Judge to whom an application was made interms of section 28 of the Act for an alteration of these particularsrefused the application on the ground that the particulars entered bythe Registrar were correct.
The main questions arising in this appeal, therefore, would appear tobe :
What is the general meaning attributable to the word ‘ race ’ ?
Can the race of a person be indirectly altered by an Act of any
legislature subsequent to such person’s birth ?
What is the meaning of the word ‘ race ’ in the contemplation
of the Births and Deaths Registration Act ?
Does the registration of an Indian or Pakistani resident as a
Citizen of Ceylon under the Indian and Pakistani Residents(Citizenship) Act entitle an Indian Tamil or an Indian Moorto be called a Ceylon Tamil or a Ceylon Moor or, as statedby the appellant in his application to the District Court, a“ Citizen of Ceylon Tamil ” or a “ Citizen of Ceylon Moor ”after such registration has been effected ? and
If the answer to (4) is in the negative or even in doubt, would a
Registrar be in order in describing the race of an Indian Tamil,who has obtained Ceylon Citizenship by registration under theIndian and Pakistani Residents (Citizenship) Act, as a CeylonTamil, in the face of the specific provision in Form A in theSchedule to the Registration of Births and Deaths Act ?
The word ‘ race ’ does not appear to have been legally defined in ourlaw nor has a clear definition of the word in the Municipal Law of anyother country or in International Law been brought to our notice.While the word ‘ nationality ’ has been defined as being the state orquality of belonging to a nation with political independence the word‘ race ’ has a narrower connotation. While the fact of belonging to acertain nationality will necessarily confer a certain political status carry-ing with it certain civd rights which every national of a country will beentitled to, the fact of belonging to a certain race will not give eithersuch political status or such civil rights. The political status and civilrights will be determined by the nationality to which a person ofa particular race belongs. Depending on the nationality laws of aparticular country the nationality of a person can be altered by theacquisition of another nationality. There are no such laws whichwould enable a person to change his race. f Race ’ has generally beendescribed in the courts as an ethnic group. This has probably followedthe dictionary meaning of the word c race Webster’s Dictionary givesthe meaning of the word 1 race inter alia, as the “ state of being one ofa special people or ethnical stock ; hence, more narrowly, state ofbelonging to a particular group or family …” It also gives the follow-ing meanings : “ The descendants of a common ancestor ; a family,tribe, people, or nation, believed or presumed to belong to the samestock; a lineage; a breed; also, more broadly, a class or kind ofindividuals with common characteristics, interest, appearance, habits,or the like, as if derived from a common ancestor ; as, the race of doctors ;the race of birds.” Although the word ‘ nation ’ too has been looselyused among the other words in Webster’s Dictionary, in view of theconsideration that political status and civil rights appear to be thedividing line between £ nationality ’ and ‘ race ’ in modern times andin view of the fact that nationality or citizenship laws which have beenenacted in most countries deal with national groups and not racialgroups and as the question for decision in the instant case revolves tosome extent round the implications of the Citizenship Act in whichthe term ‘ citizen of Ceylon ’ is used in the sense of nationality, the useof the word ‘ race ’ as being equivalent to or co-extensive with the word‘ nation ’ can reasonably be eliminated.
Looking at it from another angle, nationality or citizenship of anindividual is unaffected by the race to which he belongs and, conversely,whatever the race a person may belong to, he is not precluded frombecoming a national or a citizen of another country, as the case may be,if he conforms to the requirements of the nationality or citizenshiplaws of that particular country. The words ‘ nationality * and 1 citizen-ship ’ can generally be said to have the same meaning while * race ’does not. It is only in a few countries that citizenship has a widerconnotation than nationality and this is from the point of view of Muni-cipal Law. Citizenship, in these instances, would mean the state of beingendowed with full political and personal rights, while nationality wouldnot grant all those rights.
Oppenheim (Eighth Edition—Volume I) at page 645 says :‘ Nation-ality ’ in the sense of citizenship of a certain State, must not beconfused with c nationality ’ as meaning membership of a certain nationin the sense of race. Thus, according to International Law, Englishmenand Scotsmen are, despite their different nationality as regards race,all of British nationality as regards their citizenship. Thus further,although all Polish individuals are of Polish nationality qua race, formany generations there were no Poles qua citizenship. ” Here too eventhough ‘ nationality ’ and ‘ race ’ are used more or less as synonyms,citizenship is used in the different sense of being endowed with politicaland civil rights. The argument of counsel for the appellant too was insupport of the principle that race was immutable while citizenship ornationality was not. This principle, of course, stands to reason. Inthe book entitled ‘ Nationality and Citizenship Laws of the Common-wealth and of the Republic of Ireland ’ by Clive Parry, a number ofinstances are given, at page 264 and subsequent pages, of the circums-tances in which a person belonging to a foreign race or nationality (in thesense of race) can apply for citizenship of the United Kingdom, thusshowing the distinction between race and citizenship. In the instancessuch as those above cited from Oppenheim, I should be very surprisedif a Pole or a Canadian or a Frenchman or a German by race called himselfBritish by race after acquiring citizenship of the United Kingdom,although he would, no doubt, enjoy the very same political and civilrights as a Briton having such rights.
Bearing those principles in mind, I shall now proceed to consider theposition in the instant case having regard to the specific provisions oflaw in the Births and Deaths Registration Act. According to ScheduleA, read with section 10 of the Births and Deaths Registration Act,it is clear that the Act requires the Registrar to state in the cage dealingwith the race of the father or the mother of the child, where the fatheror the mother is a Tamil, the words c Indian Tamil ’ or * Ceylon Tamil In my view it is not necessary in this application to engage in any pro-found research as to where the fine is to be drawn between Tamils ofrecent Indian origin and Tamils of remote Indian origin for the purposeof section 10 of the Act. The appellant admitted in evidence in thelower court that he was an Indian Tamil. The fact that he applied forregistration as a Ceylon citizen under the Indian and Pakistani Residents(Citizenship) Act confirms his evidence. For, Ceylon Tamils are citizensof Ceylon and are not required to take any action in order oo entitlethem to all the civil and political rights attaching to a Ceylon citizen.If that was so and, if a change in one’s nationality or citizenship does notchange one’s race, would the Registrar of Births and Deaths have anyalternative except to obey the peremptory requirement of the Actwhich, far from leaving the matter in doubt, gives the very words that theRegistrar must use in regard to the particulars in question ?
No doubt a difficulty is created by the fact that, ordinarily, the raceof a Tamil person who makes an application under the Indian and Pakis-tani Residents (Citizenship) Act would be Tamil, and * Indian ’ or‘ Ceylon * would only be an adjective describing his domicile. It maylogically be argued, therefore, that when a person obtains Ceylon citizen-ship under this Act, he would in effect be changing his domicile andwould be entitled to describe himself thereafter as a * Ceylon ’ Tamil.But, of course, it has to be borne in mind that neither the Indian andPakistani Residents (Citizenship) Act, nor the Citizenship Act deals withquestions of domicile, but only with the question of citizenship. Inview of the silence of the Indian and Pakistani Residents (Citizenship)Act on this question, there is no warrant by inference to describe anIndian Tamil who has obtained Ceylon Citizenship as a Ceylon Tamil onthe ground of his domicile and to make use of that description whichwill have the effect of violating an express provision of the Births andDeaths Registration Act, which, as I have said before, has made a cleardistinction between Indian Tamils and Ceylon Tamils and consideredIndian Tamils as a race for the purposes of the Act. In the contextin which it is used, therefore, one has to conclude that at least for thepurposes of the Act a race called the ‘ Indian Tamil * race and anothercalled the ‘ Indian Moor ’ race have been recognised. If such a race wasnot recognised at least for the purpose of this Act, it would be wrongto give a direction in the foot note that the race should be shown as ‘ IndianTamil, ‘ Ceylon ’ Tamil, * Indian ' Moor or ‘ Ceylon ’ Moor. Further,quite apart from the special meaning given to “ Indian Tamils ” as beinga race in the Act, in view of the varied meanings given to the word ‘ race ’in Webster’s Dictionary quoted earlier, it would not be inappropriate norwithout justification to call the Indian Tamils a race. It is, therefore,necessary to apply the same rules which I have referred to earlier inconsidering whether the conferment of Ceylon citizenship on an IndianTamil has the effect of changing his race or not.
The argument of counsel for the appellant on this matter, at the timeit was advanced, had considerable attraction and appeared convincing.He submitted two aspects for our consideration based on section 6 (2)(iv) (a) of the Indian and Pakistani Residents (Citizenship) Act which wasto the effect that it shall be a condition for allowing any application forregistration under this Act that the applicant shall have produced suffi-cient evidence to satisfy the Commissioner that the applicant clearlyunderstands that in the event of being registered as a Citizen of Ceylon,the applicant will be deemed in law to have renounced all rights to thecivil and political status the applicant has had, or would, but for suchregistration in Ceylon, have had, under any law in force in the territoryof origin of the applicant or the applicant’s parent, ancestor or husband,as the case may be. Mr. Tiruchelvam submitted that the renunciationof all the rights to the civil and political status referred to in this provi-sion would preclude an applicant who is registered as a citizen fromcalling himself thereafter an Indian Tamil by race. In other words, his
contention was that once an Indian Tamil was registered as a citizen ofCeylon under this Act, it would be wrong for him to call himself an IndianTamil and he thereafter became a Ceylon Tamil and that, therefore, if hecontinued to call himself an Indian Tamil, it would contradict the positionthat he has been registered as a Ceylon Citizen and has renounced allrights to the civil and political status he has had prior to that, or would,but for such registration in Ceylon, have had. The other aspect headvanced for our consideration was that it would be discourteous for anIndian Tamil, who was conferred Ceylon citizenship by this country, toenjoy the privileges of citizenship and to continue to call himself anIndian Tamil. On a closer examination of this submission, however,and upon a consideration of the distinction between f race ’ and * citi-zenship ’ which I have referred to earlier, it seems to me that there is nodifficulty in reconciling the provision relied on by counsel for the appel-lant with the fact of an Indian Tamil who is granted citizenship conti-nuing to call himself an Indian Tamil by race. For, the accent in section6 (2) (iv) (a) appears to me to be on the words “ civil and political status ”which is a necessary attribute of citizenship and not an attribute ofrace.
I shall now proceed to deal in greater detail with the interpretationof the words contained in the relevant provision. Maxwell on ‘ Inter-pretation of Statutes ’ says :—
“ The preamble to a statute, even after repeal, is a good means of findingout its meaning and, as it were, a key to the understanding it. It maylegitimately be consulted to solve any ambiguity or to fix the meaning ofthe words which may have more than one, or to keep the effect of theAct within its real scope whenever the enacting part is in any of theserespects open to doubt. ” It is useful to look at the preamble to theIndian and Pakistani Residents (Citizenship) Act in terms of this defi-nition. This preamble sets out the purpose as being an Act to makeprovision for granting the status of a Citizen of Ceylon by Registrationto Indians and Pakistanis who have the qualification of past residencein Ceylon for a certain minimum period. In interpreting any section ofthe Act whose meaning for some reason is not clear, it behoves one not totravel outside its scope and always to bear in mind the purpose of the Act.The preamble to the Act refers to the status of a Citizen of Ceylon whichis sought to be conferred on certain Indians and Pakistanis with certainresidence qualifications. Section 6 (2) (iv) (a) of the Act on which relianceis placed to support the argument that an Indian Tamil ceases to be suchand becomes a Ceylon Tamil after registration as a Ceylon Citizen, alsorefers to the rights to the civil and political status which such a CeylonCitizen is deemed to have renounced on the conferment of Ceylon Citi-zenship. The contention of counsel being, or being tantamount to saying,that one of the rights so renounced is the right to be called an Indian Tamil—which necessarily involves the corollary that one of the rights conferredby Ceylon Citizenship in this case is the right to be called a Ceylon Tamil—the true meaning of the word ‘ status ’ or the words * civil and political
status ’ in the context referred to above assumes the greatest importance.As I have pointed out earlier in this judgment, political status and civilrights have no relation to race and if a person’s race continues to be whatit was, despite his change of civil and political status, the only correctcourse of action for the Registrar will be to act in the manner he has done.We are not called upon, in this case, to decide the abstract question asto what the race of the child which is sought to be registered would orshould be and it is, therefore, unnecessary to delve into that aspectin the present appeal.
Yet another way of testing this matter is to leave aside for a momentthe Indian and Pakistani Residents (Citizenship) Act and to considerwhether a person, who belongs to a race different from Indians or Pakis-tanis and who obtains Ceylon citizenship under the Citizenship Act,will be entitled to call himself by any other race than his original raceif he had to register the birth of a child. Would it be in order for anEnglishman or Frenchman or Italian or a Chinese by race, for instance,who is granted citizenship under section 13 of the Citizenship Act to callhimself by any other race in furnishing particulars to the Registrar ofBirths in respect of the particulars to be entered in cages (4) and (5) ofForm A in the Schedule. The question he is called upon to answer forthis purpose is what his race is and not whether he is a citizen of Ceylonor not. The obvious answer seems to me to be to mention his originalrace as a member of which he applied for and obtained citizenship. Ifthat is the answer to the question vis-a-vis a person registered as aCitizen of Ceylon under the Citizenship Act, the principle cannot bedifferent in the case of one registered as such under the Indian andPakistani Residents (Citizenship) Act.
Considering the case from yet another aspect, would the entry of theparticulars of the race of the father or the mother as “ Indian Tamil ”in a Birth Register defeat the purpose of even the Indian and PakistaniResidents (Citizenship ) Act, which again, it may be noted, we are notcalled upon to interpret in the present appeal, although, admittedly,the provisions of section 6 (2) (iv) (ct) indirectly arise for consideration.The answer to this question to my mind is unambiguously in the negative.For, whatever may be the race of the person, who is granted citizenshipof Ceylon by registration under tnis Act, he will be fully entitled to allthe rights to the civil and political status which are granted by' thecertificate of registration and they will continue to remain undiminishedbe he called “ Indian Tamil ” or “ Indian Moor ” or “ Pakistani Tamil **or “ Pakistani Moor ", unless and until he either renounces his CeylonCitizenship or does some other Act, such as acquiring some othernationality or citizenship, which will ipso facto have the effect of deprivinghim of his Ceylon Citizenship. Even on the ground of possible mischiefor prejudice to the person who has been registered as a Ceylon Citizen orto any member of the family, therefore, I cannot see how the contentionof counsel for the appellant can prevail because mischief or prejudicethere is none.
For these reasons, I am of opinion that the Registrar of Births andDeaths was right in noting down the particulars of the race of the fatherand the mother of the child as he did. The appeal must, therefore, failand it is accordingly dismissed.
T. S. Fernando, J.—I agree.
Alebs, J.—I agree.
Appeal dismissed.