MUDANAYAKE et al., Petitioners, and SIVAGNANASUNDERAM et al., Respondents

007-NLR-NLR-V-53-MUDANAYAKE-et-al.-Petitioners-and-SIVAGNANASUNDERAM-et-al.-Respondents.pdf


Mudauayalc x. Stray nanasinulrram
25
1951Present: Jayetlleke C.J., Pulle J. and Swan J.MUD A X A YA KE et al., Petitioners, and SIVAGNANASUNDERAM
et al., Respondents
S. C. 36S and . 369—Applications for Writs of Certiorari underSection 42 of theCourts Ordinance by P. B. Mudaxayake,
Assistant Registering Officer, Electoral District No. 84(Riuvanwella), and by V. L. Wjrasinha, Commissioner of Parlia-mentary Elections, Colombo, ox (1) N. Sivagnanasunderam,Revising Officer for Electoral District No. 84 (Ruwanyvella),and (2) O. S. N. Kodakax Pillai
Ceylon (Parliamentary Elections) Amendment Act, No. 48 of 1949, s. 3 (1) (a):—Citizenship Act, No. 18 of 1948, ss. 2. 4 and 5—Discriminatory legislation—Meaning of—Ceylon (Constitution and Independence) Orders in Council,1946 and 1947. s. 29—Certiorari—Scope of lent—Admissibility nf freshevidence.
Section 3 (1) (a) of the Ceylon (Parliamentary Elections) Amendment Act,No. 48 of 1949, read with sections 4 and 5 of the Citizenship Act, No. 18 of 1948,is not discriminatory legislation imposing a communal restriction on theIndian community in Ceylon, and does not therefore offend against section 29of the Ceylon (Constitution and Independence) Orders in Council, 1946 and1947. The language of both provisions is free from ambiguity and, therefore,their practical effect and the motive for their enactment are irrelevant.
Where the language of a statute speaks clearly for itself, it is not permittedto rely on extraneous evidence in support of an interpretation which the wordsof the statute do not warrant.
Certiorari lies not only where the inferior Court has acted without or in excessof its jurisdiction but also where the inferior Court has stated on the face of theorder the grounds on which it had made it and it appears that in law thosegrounds are not such as to warrant the decision to which it had come.
When an officer who is appointed under section 9 of the ParliamentaryElections Order in Council, 1946, to decide the question whether a claimantfor registration as a voter is qualified to be a voter under the law proceeds todecide the particular case before him on the footing of an erroneous decisionon the preliminary question as to what is the law which lays down the qualifi-cation of voters, he acts outside his jurisdiction and becomes amenable to awrit of certiorari.
In certiorari matters affidavits or any other kind of evidence is receivablein the Supreme Court only when there is an objection as to jurisdiction on theground of disqualification of the members of the inferior Court, or on theground of their bias or interest in the subject-matter. Apart from such questionsof jurisdiction, a party is not entitled to produce fresh evidence to supplementthat which is on the record.
T
HESE were two applications for writs of certiorari in respect of an ordermade by the Revising Officer for Electoral District No. 84
(Ruwanwella).
Sir Alan Bose, K.C., Attorney-General, with T. S. Fernando andWalter Jayewardene, Crown Counsel, for the petitioners, objected toa motion of the 2nd respondent to produce three affidavits.—Theseaffidavits have not been served on the petitioners concerned. Theyarc also inadmissible on two grounds. Firstly, they are irrelevant.The affidavits are mainly statistical and purport to show that the statute
26
Mudanayake c. Sivagnanasunderam
was harsh uu a certain community. If the language of a statute is notcapable of an interpretation in conflict with a prohibition then statisticsare irrelevant. An educational test, for example, may affect a largenumber of a particular community. Still the statute is not bad. Thenumbers affected are not relevant. Therefore these affidavits are irrele-vant. Secondly, material not placed before the inferior Court cannotbe put forward before the superior Court under a writ of .Certiorariexcept where the question of jurisdiction is raised. Where the inferiorCourt was not qualified or was biassed or interested, then affidavitsare receivable. See the judgment of Lord Sumner in R. v. Nat BeltLiquors Ltd. 1 and the judgment of Lord Goddard in R. r. Northumber-land Compensation Appeal Tribunal -.
S. J. V. Chelvanayakam, K.C., with S. Nadesan, G. Vanniasingham,S. Canagarayer, and E. R. S. R. Coomaraswamy, for the 2nd respondent.—This Court is not sitting in appeal over the judgment of the inferiorCourt. The Revising Officer had jurisdiction to say whether the statuteswere ultra vires. This Court cannot question that.
[Pulle J. : Do you say that the Writ of Certiorari does not lie?]
We admit it lies, but we say that it lies within a certain ambit. ThisCourt cannot revise the judgment of the Revising Officer. If this Courtis to decide whether the statutes are ultra vires or intra vires then thisfresh material is admissible.
[Jayetileke C. J. :Why did you not place this material before the
lower Court ?]
It was not available at the time. Evidence of extraneous matterwas taken in cases similar to the present case. See Attorney-Generalof Alberta v. Attorney-General of Canada If there was a want ofjurisdiction, or if there was such a fundamental error of law as to beequivalent to want of jurisdiction, evidence could then be led.
[Jayetileke C.-J. referred to Estate and Trust Agencies v. SingaporeImprovement Trust ‘.]
The question is what is the law applicable. The determination ofwhat is the law in this case depends on facts. What is now sought to beput before Court were facts on which depended the determination ofthe. law.
Sir Alan Rose, K.C., in reply, cited C. S. Krishnaswamy Ayyar v.Mohanlal Binjani s. Lord Sumner in R. v. Nat Bell Liquors, Ltd. (supra)only refers to excess of actual jurisdiction not constructive jurisdiction.Evidence is only rationally admissible where there is an excess of actualjm isdiction.
[The Court intimated that it would give its ruling on the admissibilityof the affidavits at the conclusion of the main argument.]
Sir Alan Rose, K.C., Attorney-General, with T. S. Fernando andWalter Jayewardene, Crown Counsel, for the petitioners.—The questionfor decision is whether section 3 (1) (a) of the Ceylon (ParliamentaryElections) Amendment Act, No. 48 of 1949, read with the Citizenship
1 (1922) 2. A. C. 128 at pp. 155, 160.3 (1939) A. C. 117 at p. 130.
E (1951) 1 A. E. R. 268.• (1937) 3 A. E.R. 324.
3 (1949) A.I. R. Madras 535 at p. 539.
27
Muilninigal;r r. Sirii'jiutnasunderam
Act, No. 18 of 1948, is void because it offends against the prohibitioncontained in section 29 of the Ceylon (Constitution and Independence)Orders-iu-Council, ]946 and 1947.
The prohibition in section 29 must be limited to any community assuch. The test is the mere language of the prohibition itself—Brophyv. The Attorney-General of Manitoba l. A man must be able to saythat he belonged to a particular community which was adversely affectedby a provision of law. In looking at the effect' of a statute one mustlook at the language and its necessary implications. The incidentaleffects of the statute, whether social, economic or political, are irre-levant in considering the validity of an Act. See Lord Porter's judgmentin Commonwealth of Australia v. Bank of Ncu■ South Wales 2 and LordAtkin’s judgment in James v. Cowan 3.
In certain cases one can travel outside the statute, that is where thereference is oblique or where the language is ambiguous. The Actsimpugned in the present case bear no oblique reference to anycommunity as such. In thisconnexionsee theAmericancases
Wtlliams v. State ofMississippi 4; Myers v.Anderson5 ; FrankGuinn
and J. J. Beal v.United States “. Further, theauthoritesmake
it abundantly clearthat where,as in thepresentcase, thereis no
ambiguity on the face of the impugned statute the Court must confineitself to the statute for the purpose of interpreting it. See 31 Halsbury(Hailsham ed.) p. 480 ; Craies’ Statute Law, 4th ed., p. 118 ; Maxwell’sInterpretation of Statutes, 9th ed., p. 29 ; Lord Birkenhead’s judgment inSutters v. Briggs 7 ; Lord Wright's judgment in Assam Railways andTrading Co. Ltd. v. Commissioner of Inland Revenue 8 : Administrator-General of Bengal v. Premlal Mullick 9 ; and Megh Raj v. Allah Rakhia 10.
In America a statute may be assailed on two grounds. Firstly, the.let itself may be in conflict with a prohibition. Secondly, the operationor administration of .the Act may be bad. In Ceylon, as in England, anadministratively discriminatory Act is not an infrangement of the Con-stitution. In the present ease the Revising Officer was misled by hisfailure to .distinguish the Canadian cases and the other class of cases.See James v. Commonwealth of Australia 11. Canada has a Central Legis-lature and Provincial Legislatures. Matters which could be dealt with bythese separate Legislatures have been, canalized, so to speak, by sections91 and 92 of the British North America Act, 1867. The special techniqueevolved by the Canadian Courts in dealing with problems arising in casesof conflict under the Canadian Constitution cannot therefore be appliedin Ceylon, where the Legislature has everything as a " permittedfield ”, subject to the prohibition in section 29. See in this connexionWynes’ Legislative and Executive Powers in Australia, p. 46.
If in its operation an Act more adversely affected certain communitiesit does not necessarily mean that the Act itself is bad. The Court has
(1895) A.C. 202 at p.215.• 238 U. S. 347.
(1950) A. C. 235 ; (1949)2 A. E.R. 769. 2 (1922) 1 A. C. 8.
3 (1932) A. C. 558.« (1935) A. C. 445 at p.457.
170 U. S. 214.» (1895) L. JR. 22 I. A.107 at p. 118.
238 V. S. 367.10 (1942) A. 1. R. Federal Oourt p. 27.
11 (1936) A. G. 578 at p. 610.
38
Mudanayake r. Sivagnanasunderam
to consider only the legal effect of the Act, not its social or economiceffects. What happened before an Act was passed or what happenedafter is irrelevant if the Act itself is plain and unambiguous.
In the present case, before a Court could be asked to hold an Actwas void the second respondent had to establish two facts—first- thatthe impugned Act imposed a disability on persons of a particular commu-nity, and second, that it did not impose the same disability on personsof other communities. The second respondent fails on both.
Iso appearance for the first respondent.
S. J. T Chclvanayakam, K.C., with S. Nadesan, C. Yaitniasingham,S. Canaga rayer and E. R. S. R. Coomaraaivamy, for the 2nd respondent.—The question is whether section 29 of the Ceylon (Constitution andIndependence) Orders-in-Council, 1946 and 1947, is plain and unambi-guous. Within the words of the section many interpretations are possible.What the Court has to consider is a purely legal matter, but the Courthas to consider political facts—such as political history, political rights,political disputes—in arriving at the reason for the inclusion of section29 in the Constitution. With regard to the sources of constructionwhich may be referred to in construing a statute see the “ Solio ” case,The Eastman Photographic Materials Co. Ltd. v. The .Comptroller Generalof Patents l. Section 29 was a limitation of the legislative powers of theLegislature of Ceylon. The Constitution has to be looked at as a wholeto see the scope of section 29. It is necessary to consider the contextin which section 29 was framed. The section was meant, to protect theinterests of minority communities. In the present case the question theCourt- has to decide is whether section 3 (1) (a) of the Ceylon (ParliamentaryElections) Amendment Act, No. 48 of 1949, read with the CitizenshipAct, No. 18 of 1948, offended section 29 of the Ceylon (Constitutionand independence) Orders-in-Council, 1946 and 1947. That questioncould not be answered by merely looking at the face of the two statutes.The Legislature could enlarge or narrow down the franchise only-if it wasin conformity with section 29.
In some cases the question as to whether a piece of legislation wasultra vires or not is apparent on the face of it. In other cases the Courthas to consider the evidence as to the legal effect of the piece of legislationcomplained of. See Attorney-General of Alberta v. Attorney-General ofCanada Involved in the question of the legal validity of an Act is thequestion of its legal effect—Lane v. Wilson -1.- Yick Wo v. Hopkins *.If a statute is clear on the face of it' but has a hidden effect, thenit is competent for the Court to consider evidence, to ascertain the realpurpose of the statute. See Fred Y. Oyama u. State of California 5.
S. Nadesan, continued for the 2nd respondent—In interpreting section29 it might be necessary to refer to some extraneous evidence or to takejudicial notice of any particular fact of which judicial notice may betaken. The conferment of—a benefit on a community may be apparentin the language of the statute. But there may be a case in which thelanguage itself does not show a discrimination. The point is what the
1 11898) A. C. 571 at P. 573.* (1939) A. C. 130.
3 307 U. S. 268.*118 V. S. 256.
3 332 U. S. 633.
Mudanuyakr c. Sitagiianasunderam
!13
statute does and not what it says. One has to fin'd out the meaning of astatute from its contents and its historical circumstances. For thepurpose of ascertaining whether the word “ confer ” in section 29 contem-plates conferment by language or conferment in fact, and for the purposeof finding out what “ community ” means, it is necessary to look at thelegislation aud to examine the circumstances under which the legislationcame to be passed, so far as those circumstances appear in documents audpapers which the Court is entitled to look into—Maxwell's Interpretationof Statutes, 9th oil., p. 20 et. seq.; Kuma v. Banda *.
[Jayetileke C.J. : What are the papers you want us to read ?]
The Beport of the Donoughmore Commissiou, the Report of theSoulbury Commission, the Ministers’ Memorandum, the Despatch ofSir Herbert Stanley (Sessional Paper 34 of 1929), and the RoyalInstructions issued in consequence of the Donoughmore ConstitutionReport.
The dicta of Lord Porter in Commonwealth of Australia v. Bank ofNew South Wales (supra) do not mean that one has to look at thelanguage of the statute alone. One has also to consider the direct effectof the enactment. This direct effect is to be distinguished from theulterior effect, legally or socially, which has been ruled out as inadmissible.The Citizenship Act says that only persons born before a certain datecan become citizens. This is discriminatory. Irrespective of whetherthe Citizenship Act is ultra vires or not, the Flections Amendment Act isstill ultra vires as it offended section 29 of the Constitution Order inCouncil. It deprives a large section of one community of the vote,while it does not so deprive any other community. A statute discrimi-nates where it differentiates on a basis beyond an individual’s control—see 34 Cornell University Law Quarterly, p. 432, where American deci-sions are discussed. [Counsel also cited Attorney-General for Ontario v.Reciprocal Insurers 3 and Wynes’ Legislative and Executive Powers inAustralia, p. 42.]
Sir Alan Rose, K.C., in reply.—With regard to the rule of interpretationused in the Canadian cases see Sir Maurice Gwyer’s judgment in A. L. SiP. P. L. Subrahmanyam Chettiar v. Muttuswami Gounden 3. The problemof conflict between sections 91 and 92 of the Canadian Constitution isentirely different from the problem in our Constitution—PrafullaKumar'Mukherjee v. Bank of Commerce Ltd., Khulna*; In the Matter ofthe C. P. and Berar Sales of Motor Spirit and- Lubricants Taxation Acts,193S
The principles stated in the American decisions are helpful thoughthose decisions are not binding on this Court. It is intellectually com-forting to know that the American Supreme Court, when considering theinterpretation of statutes, adopted the same rule that Lord Porter hadcrystallized in Commonwealth of Australia v. Bank of New South Wales(supra).
5 (1920) 21 K. L. R. 294.3 (1941) A. I. R. (F. C.) 47 at p. 51.
(1924) A. C. 328 at pp. 337, 339.* (1947) A.I. R. (P. C.) 60 at p. 65.
6 (1939) A. I. R. (F. C.) 1 at p. 5.
30
Mudanayalti; v. Sicaguanasumlerain
Even if the Soulbury Commission intended to safeguard the minoritiesstill the language of section 29 does not say so. It would have been simpleto draft legislation that no law must be passed to interfere with the votingstrength of a community. But this was not done.
The Elections Amendment Act connects up the Citizenship Act withthe vote. The Citizenship Act can only be bad if there is somethingcommunal in it. The Amendment Act can only be bad if the CitizenshipAct is bad. All that the Amendment Act did was to say that no one couldvote who was not a Ceylon citizen. There is nothing communal in that.Section 5 and, indeed, section 4 of the Citizenship Act are discriminatory,but not discriminatory of a particular community. There is nothing inouv law to prohibit the passing of discriminatory statutes. The Legis-lature can pass a law limiting the franchise to men. That would bediscriminatory, but not against any particular community. The facithat a statute factually operates more harshly on one community thanon another is a political matter and is not the concern of the Court.
Cur adv. ouh.
September 28, 1951.
The following is the judgment of the Court: —
There are two applications by the Crown before us—Nos. 568 and 369—io>.Writs of Certiorari to bring up into this Court the order dated July *2, 1951made by the 1st respondent in order that it should be examined. Theyraise a constitutional question of great importance.
In application No. 368 the petitioner is the Assistant Registering Officerfor the Electoral District No. 84 (Ruivanwella) and in Application No. 369the Commissioner for Parliamentary Elections. In both applicationsthe 1st respondent is the revising officer for the Electoral District No.84 (Ruwanwella) Kegalle appointed under s. 9 of the Ceylon (Parliamen-tary Elections) Order in Council, 1946, and the 2nd respondent is a claimantto have his name entered in the register of voters prepared under s. 12of the Order. The Attorney-General informed us that two petitiouswere filed as there was a doubt as to who was the proper party to makethe application. The two applications were, by consent of the partiesrepresented at the hearing, consolidated and heard together.
On January 22, 1951, the 2nd respondent made a claim to the Regis-tering Officer of the Electoral District No. 84 to have his name insertedin the register of electors. He alleged in his affidavit that he possessedthe requisite residential qualification, that he was domiciled in Ceylonand that he was qualified to be an elector under the Order.
On February 26, 1951, the Assistant Registering Officer for the Districtinquired into the said claim and decided that the 2nd respondent was notentitled to have his name inserted in the register, as he was not a citizen,of Ceylon within the meaning of the Citizenship Act, No. 18 of 1943.
On March 8, 1951, the 2nd respondent appealed to the 1st respondentagainst the said decision under s. 13 of the Order. The 1st respondent,after considering the statement made by the 2nd respondent at the in-quiry before the Assistant Registering Officer and an affidavit made bythe 2nd respondent, and, after hearing argument, held that the CeylonParliamentary Elections (Amendment) Act, No. 48 of 1949, which pres-cribed citizenship of Ceylon as a necessary qualification of an elector,
Mudanayake c. Sivaynanasu-nderam
31
and the Citizenship Act, No. 18 of 1948, were invalid as offending againsts. 29 (2) of the Ceylon (Constitution and Independence) Orders in Council,1946 and 1947, and that the operative law was that contained in the Geylon(Parliamentary Elections) Order in Counlil, 1946, as it stood before itwas amended by the amending Act. He, accordingly, held that the2nd respondent was a duly qualified elector, and directed his name to beincluded in the register of electors. The determination of the appealby the revising officer is made final and conclusive by s. 13 (3) of the Order.Therefore, no appeal lies to this Court from the order made by the 1strespondent. The mere fact that the decision of the revising officer ismade final and conclusive by s. 13 (3) will not by itself exclude certiorari.
It is unnecessary for us to consider whether the decision of the 1strespondent is subject to review by means of Certiorari because learnedCounsel for the 2nd respondent conceded that it is. We would, however,say a few words about the tests applicable to Certiorari, as the questionwhether Certiorari lies on a ground other than defect of jurisdictionarises, incidentally, in connection with a motion made by the 2nd respon-dent at the hearing before us to produce three affidavits severally madeby Mr. Peri Sunderam, Mr. V. E. K. R. S. Thondaman and Mr. S. M.Subbiah which contain certain statistics relating to the Indian Tamils.
Ceritorari is a prerogative writ obtainable either in civil or criminalproceedings and its object is “to give relief from some inconveniencesupposed, in the particular case, to arise from a matter being disposedof before an inferior Court less capable than the High Court of renderingcomplete and effectual justice ” It is clear from the judgment ofEarl Cairns, L. C., in Walsall Overseers Ltd. v. London & North WesternRailway Co. 2, that certiorari lies not only where the inferior Court hasacted without or in excess of its jurisdiction but also where the inferiorCourt has stated on the face of the order the grounds on which it hadmade it and it appears that in law those grounds are not such as to warrantthe decision to which it had come. The principle laid down in this casewas applied in R. v. Nat Bell Liquors Ltd 3 and R. v. NorthumberlandTribunal *
The present applications were supported on both grounds. The defectof jurisdiction seems to arise in this way. The jurisdiction of the RevisingOfficer is to decide the question whether the claimant is qualified to be avoter under the law. The matters in respect of which he is given jurisdic-tion are matters of law or of fact applicable to the concrete case he iscalled upon to decide. If a question arises as to what is the law whichlays down the qualification of voters in general, such a question is notincidental to the concrete case, but a question as to what his jurisdictionis, because such a question arises antecedently to the exercise of jurisdic-tion. It is a preliminary question which arises as to what is the precisequestion that he has to decide in the concrete case. When he decidesthat preliminary question, he merely formulates the question he has todecide, and, if his decision on the preliminary question is wrong, then hiserror relates to the scope of his jurisdiction and is not an error in theexercise of his jurisdiction. When he, thereafater^ proceeds to decide
1 9 HaLabury'S-ruVed. a. 142u.3 (1922) 2 A. C. 128.
– (1878) 4 A. C. 30.* (1951) 1 All E. R. 268.
8-N.L. R. Vol.-Liii
3-2
Miulnuaijnkc v. Sivagnanasunderam
the particular case before him on the footing of the erroneous decisionon the preliminary question as to what is the law which lays down thequalification of voters he acts outside his jurisdiction. This view issupported by the judgment of the Privy Council in Estate ami TrustArjcncies v. Singapore Improvement Trust *. The headnote of that caseadequately sums up the position. It reads: —
“ The respondent trust, a corporate body constituted by the SingaporeImprovement Ordinance, 1027, made a declaration that a house owned by theappellant company was insanitary within the meaning of section 57 o." th°Ordinance. After hearing objections to the declaration by the appellancompany, the responded trust submitted the declaration to the Governor inCouncil for approval in accordance with the provisions of section 59 of theOrdinance. The appellant company applied for a writ of prohibition, prohibitingthe respondent trust from further proceeding in respect of the declaration, onthe ground that its action was ultra vires—
Held : (i) In deciding whether, after considering the objections raised againstthe declaration being a true and fair representation of the construction andcondition of the dwelling, the declaration should be revoked or submitted to theGovernor in Council, the respondent trust must be regarded as exercising quasijudicial fnuctions.
the respondent trust had applied a wrong and inadmissible test in makingthe declaration, and in deciding to submit it to the Governor in Council. Itweis therefore Eicting beyond its powers, and the declaration was not enforceable.
after the submission of the declaration for the approval of the Governorin Council, the respondent trust was still charge with the performance of certainduties, to which a writ of prohibition could apply. I wees not functus officioand a writ of prohibition might issue. ”
We shall now proceed to deal with the 2nd respondent’s motion toproduce the affidavits. The learned Attorney-General objected totheir admission on two grounds, (1) that the evidence was irrelevant,(2) that in- certiorari matters affidavits or any other kind of evidenceis receivable only when there is an objection as to jurisdiction. Herelied on the following passages in the judgment of Lord Sumner in.R. v. Nat Bell Liquors Ltd.2 atpage 160,
“The matter has often being discussed as if the true point was one relating tothe admissibility of evidence, and the question has seemed to be whether or notaffidavits and new testimony were admissible in the Supreme Court. This isreally an accidental aspect of the subject. Where it is contended that thereare grounds for holding that a decision has been given without jurisdiction,this can only be made apparent on new evidence brought ad hoc before the superiorCourt. How is it ever appear within the four' comers of the record that themembers of the inferior Court were unqualified, or were biEissed, or were interestedin the subject matter ? On the other hand to show error in the conclusion ofthe Court below is not even to review the decision : it is to retry the case, ”
and at page 155,
“ If justices state more'than they are bound to state, it may, so to speak, be usedagEunst them, and out of their own mouths they may be condemned, but there isno suggestion that apart from questions of jurisdiction, a party may state furthermatter to the Court, either by new affidavits or by producing anything that isnot on or part of the record.
In R. v. Northumberland- Tribunal 3 Lord Goddard said: —
“ Observe that that is saying that evidence cannot be produced to supplementthat which is not in the record. The Court is confined to that which is on therecord. ’ ’
We inquired from 2nd respondent’s Counsel whether the affidavits wereintended to supplement the evidence adduced by affidavit by the 2ndrespondent before the 1st respondent and his reply to the question was
1 (1937) 3 AU E. R. 324.8 (1922) 2 A. C. 128.
3 (1951) 1 All E. R. 268.
Mudanayal.c c. Sicagnanasunderam
33
in the affirmative. In view of the first objection by the. Attorney-Generalwe deferred our order on the motion till we heard argument on all thequestions raised on the applications before us. In the course of hisaddress Counsel for .2nd respondent reverted to the motion to producethe affidavits and sought to support it on the dbservations of LordSumner quoted above that where there is an objection as to jurisdictionfurther evidence can be led. He contended that the basis of theapplications made by the Crown is that the 1st respondent acted inexcess of jurisdiction in coming to an erroneous decision on the law,and the 2nd respondent is, therefore, entitled to place further evidenceto show that the decision of the 1st respondent on the law is not erroneous.It seems to us that the argument is based on a misapprehension ofthe judgment of Lord Sumner which states very clearly that if thedefect of jurisdiction arises because of disqualification of a justice, oron the ground of bias or some other reason, the Court could not knowof it unless evidence was brought before it, and, therefore, the Courtcould admit evidence by affidavit to show the defect of jurisdictionIn the present case the 2nd respondent placed certain materials beforethe 1st respondent on which he invited the 1st respondent to hold thatthe provision of law which was applicable to the question he had todecide was not s. S (1) (a) of the Ceylon (Parliamentary Elections)Amendment Act, Xo. 48 of 1949, but s. 4 of the Ceylon (ParliameutaiyElections)Orderin Council,1946. Evenif the evidence which the
2nd respondent now seeks to place before us by way of supplementingthe affidavit PI is relevant to the question before us we are of opinionthat- it could and it should have been placed before the 1st respondentat the hearing of the appeal by summoning the officers who were incharge ofthe registers.Ifwe admit theevidence, we will have to
adjudicateon it,whichwillamount to re-trying the case. We are of
opinion that the affidavits are inadmissible and cannot be justifiedas fallingunderany oftheheads statedby Lord Sumner. However
that may be, we are of opinion that they are not relevant to the questionthat arises for decision in this case for the reasons given below. Wewould, accordingly, refuse the motion.
The first question we have to decide is whether the 1st respondent'sdecision as to what is the law which lays down the qualification of votersin general is ex facie erroneous. In order to decide this question it isnecessary to examine the relevant legislative provisions. The Ceylon(Constitution) Order in Council, 1946, popularly called the SoulburyConstitution, which was published in the Government Gazette on May37, 1946, conferred on Ceylon a comparatively large extension of self-government-. The sections to which reference need be made are 29and 37. They read as follows: —
29.(1) Subject- to the provisions of the Order, Parliament shall have power
to make laws for the peace, order and good government of the Island.
No such law shall—
prohibit or restrict the free exercise of any religion; or
make persons of any community or religion liable to disabilities, or restrictions
to irhirh persons of other communities or religions are not made liable; or2J. X. Ti 09182 (10/57)
34
Mudanayake v. Sivagiianasunderam
(<!) confer on persons of any community or religion any privilege or advantage whichis not conferred on persons of other communities or religions; or(d) alter the constitution of any religious body except with the consent of thegoverning authority of that body:
Provided that, in any case where a religious body is incorporated by law, no suchalteration shall be made except at the request of the governing authority of thatbody.
Any law made in' contravention of sub-sect ion (2) of this section shall, lo the extent«/ such contravention, be void.
In the exercise of its powers under this section Parliament may—
amend or suspend any of the provisions of any Order in Council in force in theIsland on the date of the first meeting of the House of Bepresentatives,other than an order made under the provisions of an Act of Parliamentof the 1'nited Kingdom, or amend or suspend the operation of any of theprovisions of this Order:
Provided that no Bill for the amendment or suspension of any of the provisionsof this Order shall be presented for the Koyal Assent unless it has endorsed on it acertificate under the hand of the Speaker that the number of votes cast in favourthereof in the House of Bepresentatives amounted to not less than two-thirds ofthewhole number ofmembers of the House (including those notpresent): every
certificate of the Speaker under this sub-section shall be conclusive for all purposesand shall not be questioned in any Court of law.
37.(1) Subject to the provision of sub-section (2) of this section, the Governor shall
reserve for the signification of His Majesty’s pleasure any Bill which in his opinion—
(а)relates to the provision, construction, mainteuance, security, staffing, manning
and the use of such defences, equipment, establishments and communica-tions as maybe necessary for the Naval, Military or Airsecurity of any
part of His Majesty's Dominion (including the Island) or any territoryunder His Majesty’s protection, or any territory in which His Majesty—has from time to time jurisdiction;
(б)isrepugnant toor inconsistent with any provision of any Order in Council
relating to or affecting—
thedefenceof anypart of His Majesty’s Dominion(including the
.Island) or any territory in which His Majesty has from time to
time jurisdiction; or
therelationsbetweenthe Island and any foreigncountryorany other
part ofHis Majesty’s Dominions or any territoryas aforesaid or
any provision of any instrument made under any such Order inCouncil;
affects the relations between the Island aud any foreign country or any otherpart of His Majesty'sDominions or any territoryunderHisMajesty's
protection or any territory in which His Majesty has from time to timejurisdiction ;
Id) affects the currency of the’ Island or relates to the issue of bank notes;
(e) is of an extraordinary nature and importance whereby the Koyal Prerogative,or the rightsor property of British subjects not residingin the Island,
or thetrade ortransport or communications of anypart ofHisMajesty's
Dominions or any territory under His Majesty's protection or any territoryin which His Majesty has from time to time jurisdiction may be prejudiced;
(/) contains any provision which has evoked serious opposition by any racialor religious community and which is likely to involve oppression or seriousinjustice to any such community;
(g) amends or suspends the operation of any of the provisions of this Order or isotherwise repugnant to or inconsistent with any such provision.
Nothing in sub-section (1) of this section shall be deemed to require the Governorto reserve for His Majesty's Assent any Bill to which the Governor has been authorised
'ftfudanajake v. Sivagnanasunderam
35
by His Majesty to assent or any Bill which in the opinion of the Governor falls within any
of the following classes that is to say—
any Bill relating solely to and conforming with any trade agreement concluded
with the approval of a Secretary of State between the Government ofthe Island and the Government of any part of His Majesty’s Dominionsor of any territory under His Majesty's protection or of any territory inwhich His Majesty has from time to time jurisdiction;
any Bill relating solely to the prohibition or restriction of immigration into
the Island; and not containing any provision, relating to the re-entryinto the Island of persons normally resident in the Island at the date ofthe passing of such Bill, which in the opinion of the Governor is unfair orunreasonable;
any Bill relating solely to the franchise or to the law of elections ;
any Bill relating solely to the prohibition or, restriction of the importation
of, or the imposition of import duties upon, any class of goods, and notcontaining any provision whereby goods from different countries are subjectto differential treatment;
any Bill relating solely to the establishment of shipping services or the regula-
tion of shipping and not containing any provision whereby the shippingof any part of ' His Majesty's Dominions or of any territory under HisMajesty’s protection or of any territory in which His Majesty lias fromtime to time jurisdiction, may be subjected to differential treatment;
A Bill reserved for His Majesty’s assent shall not take effect as an Act ofParliament unless and until His Majesty has given his assent thereto, and LheGovernor has signified such assent by proclamation.
It will be seen that any Bill relating solely to the franchise was notregarded as coming within the category of Bills which the Governor isinstructed to reserve for the signification of His ^Majesty’s pleasure. Sucha Bill can be passed by Parliament by a bare majority.
■ The Ceylon Independence Act, 1947, which was passed on December 10,1947, and brought into operation on February 4, 1948, made provisionfor the attainment by Ceylon of fully responsible status within the BritishCommonwealth of Nations. This Act was followed by the Ceylon Inde-pendence Order in Council, 1947, which was brought into operation onFebruary 4, 1948, by the Ceylon Independence (Commencement) Orderin Council, 1947. In order to give effect to the Ceylon IndependenceAct, 1947, the Ceylon (Constitution) Order in Council, 1946, was amendedand the Ceylon Independence Order in Council, 1947, was passed onDecember 19, 1947, * which, together with the principal order and theamending order, form now the Ceylon (Constitution and Independence)Orders in Council, 1946 and 1947. It retained s. 29 (2) and revokedcertain sections including s. 37 of the Ceylon (Constitution) Order inCouncil, 1946. Under it Parliament has the power to pass legislation inregal’d to any matter subject to the limitations contained in s. 29.
The Citizenship Act, No. 18 of 1948, was passed on August 20, 1948,in order to make provision for citizenship of Ceylon and for mattersconnected therewith. Sections 2, 4 and 5 read as follows: —
2.(1) With effect from the appointed date, there shall be a status to be known as
' the status of a citizen of Ceylon ".
(2) A person shall be or become entitled to the status of a citizen of Ceylon in oneof the following ways only: —
by right of descent as provided by this Act;
lb) by virtue of registration as provided by this 'Act or by any other Act authorisingthe grant of such status by registration in any special case of a specifieddescription.
Mudanayake v. Sivag na oas unde ram
(3) Every person who is possessed of the aforesaid status is hereinafter referred toas a “ citizen of Ceylon In any context in which a distinction is drawn accordingas that status is based on descent or registration, a citizen of Ceylon is referred to as■“ citizen by descent ” or “ citizen by registration and the status of such citizeuis in the like context referred to as “ citizenship by descent " or " citizenship byregistration
(1) Subject to the other provisions of this Part a person born, in Ceylon beforehe appointed dale shall have the status of a citizen of Ceylon by descent if—
his father was born in Ceylon, or
his paternal grandfather and paternal great grandfather weie born in Ceylon.
(2) Subject to the other provisions of this Part a person born outside Ceylon beforethe appointed date shall have the status of a citizen of Ceylon by descent, if—
his father and paternal grandfather were born in Ceylon; or
his paternal grandfather and paternal great grandfather were born■ in Ceylon.
(I) Subject to the other provisions of this Part- a person bom in Ceylon, on nrafter the appointed date shall have the status of a citizen of Ceylon by descent if at thetime of his birth his father is a citizen of Ceylon.
(2) Subject to the other provisions of this Part, a person bom outside Ceylon, on orafter the appointed date shall have the status of a citizen of Ceylon by descent if nt thetime of his birth his father is a citizen of Ceylon and if,‘within one year from the dole ofbirth, the birth is registered in the prescribed manner—
at the office of a consular officer of Ceylon in the country of birth, or
where there is no such officer, at the appropriate embassy or consulate iu ilist
country or at the office of the Minister in Ceylon.
The Ceylon(Parliamentary Elections) Orderin Council.1946. was
published inthe Government GazetteonSeptember26, 1946.Sections 4
(1), 5 and 7 (1) read as follows: —
(1) No person shall be qualified to have his name entered or retained in anyregister of electors in any year if such person—
is not a British subject, or is by virtue of his own act, under any acknowledg-
ment of allegiance, obedience or adherence to a foreign Power or State : or
was lessthantwenty-one years of ageonthe firstdayof .Tune inthat year; or
has not,fora continuous period ofsixmonthsinthe eighteen months im-
mediately prior to the first day of June in that year, resided in the electoraldistrict to which the register relates; or
isserving a sentence of imprisonment (bywhatevernamed called) imposed by
any Court in any part of His Majesty'sDominions or in anyterritory under
His Majesty's protection or in any territory in which His Majesty hasfrom time to time jurisdiction, for an offence punishable with imprisonmentfor a term exceeding twelve months, oris undersentence ofdeath imposed
by any such court, or is serving a sentence of imprisonment awarded iulieu of execution of any such sentence; or
is, under any law in force in the Island,found ordeclared tobe of unsound
mind; or
(/) is incapable of being registered as an elector by reason of his conviction of anoffence under section 5-2 of this Order; or
(g1 would have been incapable of being registered as a voter by reason of hisconviction of a corrupt or illegal practice if the Ceylon (State CouncilElections) Order in Council, 1931, had remained in force.
Any person not otherwise disqualified shall be qualified to have his name enteredin the register of electors if he is domioiled in the Island or if he is qualified in accordancewith Section b or Section 7 of this Order :
Provided that, except in the case of persons possessing Ceylon domicile of origin,domicile shall not be deemed to have been "acquired for the purpose of qualifyingfor registration as an elector by any person who has not resided in the Island for atotal period of or exceeding five years.
Mudanayake v. Sivaguanasunderam
87
7. (1) Any person not otherwise disqualified shall be qualified to have his nameentered in a register of electors if he is in possession of a certificate of permanentsettlement granted to him—
in accordance with the provisions of the Ceylon (State Council Elections)
Order in Council, 1931, or
in accordance with this Section by the Government Agent of the piovince or
by the Assistant Government Agent of the district in which he resides or byany other officer of the Government authorised in writing by the Govern-ment Agent or Assistant Government Agent aforesaid in accordance withsuch general or special directions as may be issued by the Governor.
This wue amended by the Ceylon (Parliamentary Elections)Amendment Act, No. 48 of 1949, which came into operation on May 26,19/50. Section 8 (1) (a) reads as follows: —
3. Section 4 of the principal Order is hereby amended in sub-section (1) thereof,os follows: —
(1) by the substitution for paragraph (a), of the following paragraph: —
“ (a) is not a citizen of Ceylon, or if he is by virtue of his own act, under anacknowledgment of allegiance, obedience or adherence to anyforeign Power or State which is not a member of the Commonwealth; "
The substantial question we have to decide is whether section 8 (1) (a)of the Ceylon -(Parliamentary Election) Amendment Act, No. 48 of 1949,read with the Citizenship Act, No. 18 of 1948, is void as offending againsts. 29 of the Ceylon (Constitution and Independence) Orders in Council.1946 and 1947. The answer to this question turns on the interpretationof these provisions, primarily s. 29. Till we discover exactly what s. 29means it is not possible for us to reach a decision as to whether theimpugned Act is in conflict with it. The rule of interpretation that isapplicable is iaid down in several English cases of high authority. It issufficient for us to refer to the recent judgment of the Privy Council inPom monwealth of Australia and others v. Bank of New South Wales andothers1. The question that arose in that case was whether Section 46 ofthe Australian Banking Act, 1947, offended against Section 92 of the Com-monwelth of Australia Act, 1900. It is similar to the question that hasarisen in this case. Lord Porter who delivered the judgment of theBoard said: —
“ In whatever sense the word ‘ object ’ or ‘ intention ’ may be usedin reference to a Minister exercising a Statutory power, in relation to anAct of Parliament, it can be ascertained in one way only, which can besthe stated in the words of Lord Watson in Solomon v. Solomon <6 Co.2:
‘ In a Court of Law or Equity what the legislature intended to bedone or not to be ■ done can only be legitimately ascertained from thatwhich it has chosen to enact either in express words or by reasonableand necessary implication.’ .
The same idea is felicitously expressed in an opinion of the EnglishLaw Officers, Sir Roundell Palmer and Sir Robert Collier, cited byIsaacs J. in James v. Cowan 3:
' It must be presumed that a legislative body intends that which isa necessary effect of its enactments; the object, the purpose andthe intention of the enactment is the same.
1 (1949) 2 All E. R. 769.
* (1897) A. C. 38.
5 43 C. L. R. 409.
38
Mudanayakc v. Sivagnanasundcram
Isaacs J. adds (ibid.) :
‘ By the necessary effect it need scarcely be said, those learnedjurists meant the necessary legal effect, not the ulterior effecteconomically or socially ’ ”,
It appears to us to be fairly clear from the English decision that the scopeand effect of a legislative measure must be ascertained by an examinationof its actual provisions and it is only when expressions used in it areambiguous that reference can he made to extraneous materials.
Relying on certain Canadian and American decisions Counsel for the2nd respondent contended.-—
(0)1 that in order to ascertain the scope and purpose of s. 29 it is legiti-mate to call in aid the history of. political events which led tothe enactment of that section and to examine the SoulburyCommission’s reportandtheconnected sessional papersiu
order to satisfy ourselves whether s. 29 was intended to be asafeguard for minorities alone;
(b) that for the purpose of determining whether the two impugnedActs violate s. 29it ispermissible to adduce evidenceto
demonstrate the practical effects produced in the course of theadministration of two Acts.
The first Canadian case was Attorney-General of Alberta v. Attorney-General of Canada and others '. The question for determination in thatcase was whether a Bill passed by the Legislature of the Province ofAlberta entitled “ An Act respecting the Taxation of Banks ” wasintravires that Legislature.TheBillimposed on every Bank, other
than the Bank of Canada, transacting business in the Province an addi-tional tax of $ per cent, on the paid up capital and 1 per cent, on the reservefundand undivided profits.TheBillwas sought to be justifiedas
falling under head (2) of section 92 of the British North America Act,1867, which empowers a Provincial Legislature exclusively to make lawsfor “ Direct taxation within the Province in order to the raising of arevenue for Provincial purposes.” On behalf of the Dominion it wascontended that the Bill amounted to a trespass on the exclusive legis-lative authority of the Parliament of Canada to make laws in respect of“ banking ” and ‘‘ savings banks ” falling under heads (15)| and (16)respectively of section 91 of the Act. Counsel relied very strongly outhe following passage in the judgment of Lord Maugham: —
“ The next step in a case of difficulty will be to examine the effectof the legislation:Union Colliery Co. of British Columbia Ltd. v.
Bryden 2. For that purpose the Court must take into account anypublic general knowledge of which the Court will take, judicial notice,and may in a proper case require to be informed by evidence as to whatthe effect of the legislation will be. ”
This passage' occurs in a context where their Lordships refer to varioustests to be applied for the purpose of determining whether a piece oflegislation, fairly considered s falls prim a facie within section 91 rather1 {1939) A. C. 117.* {1899) A. G. 580.
Mudanayake o. Sivagnaruuunderam
than within section 92. The judgment leaves no room for the suggestionthat where the language of the statute speaks clearly for itself one ispermitted to rely on extraneous evidence in support of an interpretationwhich the words of. the statute do not warrant. It is important to notethat the passage in question is prefaced by the words, “ The next stepin a case of difficulty will be to examine the effect of the legislation. "In the course of examining the effect of the legislation their Lrordshipsreferred to the fact that if the Bill became operative the yield fromtaxation of hanks carrying on business in the Province would increase from140,000 dollars to 2,081,925 dollars per annum. Their Lordships wereagain applying a test to find whether a piece of legislation which on theface of it imposed a direct tax on banks was- not one which properlycame within the subject of banks and savings banks assigned exclusivelyto the Parliament of Canada. The difficulty was apparent on the faceof the Bill and upon a consideration of the provisions of sections 91 and92. It was to find a solution to this difficulty that extraneous evidencewas permitted.
The second Canadian case on which reliance was placed was Attorney-General for Ontario v. Reciprocal Insurers and others.1 In that case theProvince of Ontario passed in 1922 an Act which authorised any person toexchange, through the medium of an attorney, with persons, whether inOntario or elsewhere, reciprocal contracts of insurance. Under a Domi-nion Act of 1917 it was an indictable offence for any person to solicit or acceptany insurance risk except on behalf of a company or association licensedunder the Insurance Act of the Dominion of 1917. The conflict arose inthis manner. Contracts of insurance constituted a subject peculiarly with-in the legislative authority of the Province, just as much as criminal lawwas within the exclusive competence of the Dominion Parliament. Theeffect of the Dominion statute was to render nugatory the exercise ofProvincial legislative authority within its own sphere. To determinewhich of the conflicting statutes prevailed the principle laid down wasthat one should ascertain the “ true nature and character ” of the enact-ment and its “ pith and substance ”. At p. 377 their Lordships stated:“ But where the law-making authority is of a limited or qualifiedcharacter, obviously it may be necessary to examine with some strict-ness the substance of the legislation for the purpose of determiningwhat it is that the Legislature is really doing. "
We do not think that these cases assist the 2nd respondent. Unlikein Canada we do not have for purposes of comparison conflicting statutes,the pith and substance of which has first to be extracted to determineon which side of the legislative boundary the subject-matter of theimpugned statute falls. Nor do we have enumerated lists of subjectscapable of analysis and comparison dividing the permitted and prohibitedfields of legislation. We would not question that the pith and substanceor the true nature and character of any Act of Parliament attacked onthe ground of violating section 29 should be examined. The fundamen-tal error in our opinion is that one should search, far afield in State papersand other political documents, for the substance or the true nature and
v 1 (1924) A. C. 32S.
40
Mudanayake o. Sivagnanasunderam
character of the impugned* statute without permitting the- ‘language ofthe statute to speak for itself, where such language is clear and unambi-guous.
It would be wrong for us to say that the Canadian cases have no relevancywhatever to the matters that we have to decide. In so far-as theyillustrate legal principles they are of the highest authority but we cannotoverlook that the problems that had to be solved in those cases werebasically of a different- character. When the occasion arises in Canadato :mpugn a statute passed either by the Central or the Provincial Legis-lature, it is found that the language of both sections 91 and 92 of theBritish North America Act, 1867, appears to attract the subject-matteroi the statute. Naturally in those circumstances the extent of theencroachment becomes one of degree and a solution is reached by deter-mining whether the statute falls more within the specific words of onesection than under the general words of the other.
In this connection we would adopt the words of Sir Maurice Gwyer,C.J., quoted with approval by Lord Porter in delivering the judgmentof fhe Privy Council in Prafulla Kumar v. Bank of Commerce, Khulna l:“ It must inevitably happen from time to time that legislationthough purporting to deal with a subject in one list, touches alsoupon a subject in another list, and the different provisions of theenactment may be so closely intertwined that blind adherence to astrictly verbal interpretation would result in a large number of statutesbeing declared invalid because the legislature enacting them mayappear to have legislated in a forbidden sphere. Hence the rulewhich has been evolved by the Judicial Committee, whereby theimpugned statute is examined to ascertain its pith and substance orits true nature and character for the purpose of determining whetherit is legislation with respect to matters in this list or in that.”
Three decisions of the Supreme Court of the United States were citedboth before the 1st respondent and before us to show that State lawspassed with the object of circumventing the fundamental rights assuredto the citizens of the United States, and even aliens residing there, by theConstitution were declared to be void and that evidence was taken toprove the manner and the extent oi the infringement of those rights.
The first case was Frank Guinn and J. J. Beal v. United States 2 whichwas a prosecution of certain election officials of the State of Oklahomafor conspiring to deprive negro citizens of their right to vote. Thestatute which was attacked as invalid was an amendment in 1910 of theOklahoma Constitution which provided that no person was to be regis-tered as an elector or be allowed to vote, unless he was able to read andwrite any section of the Constitution of the State of Oklahoma. Theamendment proceeded further to provide,
” But no person who was, on January 1st, 1866, or at any timeprior thereto, entitled to vote under any form of government or whoat that time resided in some foreign nation, and no lineal descendantof such person, shall be denied the right to register and vote becatiseof his inability to so read and write sections of such Constitution.”
(1947) 34 A. 1. Jt. 60 (P. C.)a 238 U. S. 347 : 59 Lawyers’ Edition 1340.
Mudanayakc v. Sicagnanasundcram
41
The substantial question for determination was whether the amendmentdiscriminated against the negroes in such a manner as to constitute aninfringement of the 15th Amendment of the American Constitution.Although the impugned statute contained no express words of exclusionthe learned Chief Justice,, having regard to the significance of the dateJanuary 1st, 1866, had no difficulty in reading into it a provision toimpose on negroes a disability by reason of their colour and condition ofservitude contrary to the express terms of the 15th Amendment. TheChief Justice states, “ we are unable to discover how, unless the prohi-bitions of the 15th Amendment were considered, the slightest reason wasafforded for basing the classification upon a period of time prior to the15th Amendment. Certainly it cannot be said that there was any peculiarneciomancy in the time named which engendered – attributes affectingthe qualification to vote which would not exist at another and differentperiod unless the 15th Amendment was in view.” It would thus beseen that the decision rested on ascertaining the true intention of thestatute hidden, as it were, behind the words ” January 1st, 1866
A similar statute enacted by the State of Maryland for the purposeof fixing the qualification of voters at Municipal elections in Annapoliswas declared in the second case that was cited, namely Myers v. Anderson 1to be an infringement of the 15th Amendment. The date selected tokeep the negroes out of the vote was January 1st, 1868. Another pro-vision in that statute which was alleged to be discriminatory was thatwhich gave the franchise to any taxpayer, without distinction of race orcolour, who was assessed on the city books for at least 500 dollars. Itis interesting to note that in dealing with this aspect of the argument,the Chief Justice stated:
“ We put all questions of the constitutionality of this standard outof view as it contains no express discrimination repugnant to the 15thAmendment, and it is not susceptible of being assailed on account ofan alleged wrongful motive on the part of the lawmaker or the merepossibilities of its future operation in practice, and because, as thereis a reason other than discrimination on account of race or colourdiscernible upon which the standard may rest, there is no room for theconclusion that it must be assumed, because of the impossibility offinding any other reason for its enactment, to rest alone upon a purposeto violate the 15th Amendment.”
The third case was Yick Wo v. Hopkins 2. The proceedings therearose on a writ of habeas corpus by which the petitioner challenged thevalidity of certain Ordinances passed by the City and County of SanFrancisco making it unlawful for any person to carry on a laundry" without having first obtained the consent of the Board of Supervisors,except the same be located in a building constructed either of brick orstone.” It was submitted that the ordinances were void on their face,and in the alternative, that they were void because they were appliedand administered so as to make unjust discriminations agaihst a parti-cular class of person carrying on the laundry business, of whom a very
1 238 XJ. S. 367 : Lawyers' Edition 1349.
* 118 V. S. 256 : 30 Lawyers' Edition 220.
42
Mudanayake c. Sivagnanasunderam.
large majority were nationals of China. The enactment was held to bevoid on both grounds. As a matter of interpretation the SupremeCourt of the United States did not concur in the opinion of the SupremeCourt of California that the enactments did nothing more than vest adiscretion in the Board of Supervisors to be exercised for the protectionof the public and held that they were repugnant to the 14th Amendment.Matthews, J., said:
“ They seem intended to confer, and actually to confer, not a dis-cretion to be exercised upon a consideration of the circumstance ofeach case, but a naked and arbitrary power to give or withhold consent,not only as to places but also as to personIn a later passage he said:
“ For, the very idea that one man may be compelled to hold his life,or the means of living, or any material right essential to the enjoymentof life, at the mere will of another, seems to be intolerable in anycountry where freedom prevails, as being the essence of slavery itself.”
We are unable to see in what respects the 2nd respondent can deriveany assistance from the principles governing the decisions in the Americancases. The statutes in question were interpreted by the Supreme Courtof the Unitfed States according to the language used. Having given ameaning to the statute, after applying the ordinary canons of interpre-tation, the Court had next to find whether the statute had the effectof taking away a fundamental right guaranteed by the Constitution toa citizen or an alien, as the ease may be. Undoubtedly, in the case ofYick Wo v. Hopkins 1 evidence was taken of the number of Chinesewho were affected by the Ordinances of the City of San Francisco.That was not for the purpose of interpreting the impugned ordinancesbut as evidence to sustain the allegation that, even if the Ordinanceswere not bad on their face, they were administered so oppressively asto infringe a fundamental right given by the Constitution.
Before leaving the American decisions we wish to refer to the case ofWilliam8 v. State of Mississippi 2 on which the Attorney-General reliedin support of his argument that one must look at the statute to see whetheron the face of it the legislation is discriminatory. The question fordecision was whether the laws of the State of Mississippi by which the grandjury selected to try Williams, who was a negx-o, on a charge of murder wererepugnant to the 14th Amendment of the Constitution of the UnitedStates.
The right to be a grand or petit juror was linked to the right to vote inthe State of Mississippi. The words of the section are: —
“ No person shall be a grand or petit juror unless a qualified elector andable to read and write; but the want of any such qualification in anyjuror shall not vitiate any indictment or verdict. The legislature shallprovide by law for procuring a list of persons so qualified, and thedrawing therefrom of grand and petit jurors for each term of the circuitcourt.”
> 118 V. S. 256 : 30 Lawyers' Edition 220.
* 170 U. S. 214 : 42 Lawyers' Edition 1012.
Mudanayake c. Sivagnanastinderam
43
The law by which an addition was made to the qualifications provided: —
“ On and alter the first day of January, 1892, every elector shall inaddition to the foregoing qualifications, be able to read any section ofthe Constitution of this State; or he shall be able to understand the samewhen read to him or give a reasonable interpretation thereof. ..”
It was urged against the validity of the laws governing the franchise that,under the section last quoted, it was left solely to an administrative officerto judge who was qualified, and that it was open to him arbitrarily tojudge that a person was not qualified, though in fact he was.
While there was an allegation that certain election officers in makingup lists of electors exercised their discretion against negroes as such, theactual position was that jurors were not selected from any lists furnishedby such election officers.
It was held that the laws in question were not invalid for the reasonstated succinctly in the concluding words of the judgment:
“ They do not on their face discriminate between the races and ithas not been shown that their actual administration was evil, onlythat evil was possible under them. ” –
In our opinion the decisions in the three oases relied on by Counsel donot support the proposition for which he contended, namely, that-it Isproper to travel outside the language of the impugned enactments andto take evidence as to whether or not, ip their ultimate effec^ they areof a discriminatory character. After a careful consideration of all theseauthorities we have come to the conclusion that if s. 3 (1) (a) of the Ceylon(Parliamentary Elections) Amendment Act, No. 48 of 1949, read with theCitizenship Act, No. 18 of 1948, does not offend against s. 29 of the Ceylon(Constitution and Independence) Orders in Council, 1946 and 1947, itdoes not matter what effects they produce in their actual operation.
We shall now proceed to examine the two impugned Acts and to seewhether they violate the provisions of s. 29. The Citizenship Act, No. 18of 1948, was enacted after various Commonwealth conferences in whichrepresentatives of Canada, Australia, New Zealand, Southern Rhodesia.India, Pakistan and Ceylon took part. Among the most significant featuresof the Citizenship Act is one that provides a definition of a citizen ofCeylon. S. 4 (1) says that a person bora before the appointed date, thatis November 15, 1948, the date on which the Act came into operation,shall have the status of a citizen of Ceylon by descent if—
fa) his father was bora in Ceylon; or
his paternal grandfather and paternal great grandfather were borain Ceylon.
S.4 (2) says that a person born outside Ceylon before the appointed dateshall have the status of a citizen of Ceylon by descent if—
his father and paternal grandfather were bom in Ceylon; or
his paternal grandfather and paternal great grandfather were bom
in Ceylon.
u
Mtidanayake v. Sieagnanas under am
Section 5 (1) says that a person born in Ceylon on or after the appointeddate shall have the status of a citizen of Ceylon by descent if at the timeof his birth his father is a citizen of Ceylon.
It is not disputed that these sections confer a “ privilege ” or an“ advantage ” on those who are or became citizens of Ceylon within themeaning of s. 29 (2) (c) of the Constitution.
When the language of sections 4 and 5 is examined it is tolerably clearthat the object of the legislature was to confer the status of citizenshiponly on persons who were in some way intimately connected with thecountry for a substantial period of time. With the policy of the Act we‘ are not concerned, but we cannot help observing that it is a perfectlynatural and legitimate function of the legislature of a sovereign country todetermine the composition of its nationals. Section 3 (1) (a)i of the Ceylon(Parliamentary Elections) Amendment Act, No. 48 of 1949, links up withthe Citizenship Act and says that anyone who is not a citizen or has notbecome a citizen is not qualified to have his name entered or retained inthe register. It restricts the franchise to citizens. Can it be said thatthese two provisions, the words of 'which cannot in any shape or form beregarded as imposing a communal restriction or conferring a communaladvantage, conflict with the prohibition in s. 29 of the Constitution?This is the simple question for our decision. In approaching the decisionof this question it is essential that we should bear in mind that the languageof both provisions is free from ambiguity and therefore their practicaleffect and the motive for their enactment are irrelevant. What we haveto ascertain is the necessary legal effect of the statutes and not the ulterioreffect economically, socially or politically.
Section 29 (2) was enacted for the first time in the Ceylon (Constitution)Order in Council, 1946. The Attorney-General conceded, we thinkrightly, that the Indians are a contemplated community and thatcitizenship and the franchise are contemplated benefits. The languageof the section is clear, and precise and it is, therefore, not permissible forus to travel outside it to ascertain the object of the legislature in enactingit. We are of opinion that, even if it was the intention of the SoulburyCommission to make section 29 (2) a safeguard for minorities alone,such intention has not been manifested in the words chosen by thelegislature. In Brophy v. The Attorney-General of Manitoba 1 the LordChancellor said: —
“ The question is not what may be supposed to have been intendedbut what has been said. ”
Section 29 (3)t declares any law made by Parliament void if it makes—
persons of any community liable to disabilities or restrictions;
to which persons of other communities are not made liable.
The conditions for the avoidance of a law under this provision are both(1) and (2V If (1) is satisfied in any particular case but not (2) the lawis not void. Both conditions must exist to render the law void. Ifa law imposing disabilities and restrictions expressly or by necessary
1 (1895) A. C. 202.
Mudanayake o. Sivagnanaxtindrram
45
implication applies to persons of a particular community or communitiesand not to others, then such a law would undoubtedly be void, becausein such a case both conditions (1) and (2) would be satisfied. If, however,a law imposes disabilities and restrictions when certain facts exist forcertain facts do not exist) and these disabilities and restrictions attachto persons of all communities when these facts exist (or do not exist asthe case may be) then condition (2) is not satisfied for the reason that thedisabilities and restrictions are imposed on persons of all communities.The same reasoning applies to section 29 (2) (c) if the law is regarded asconferring privileges or advantages on persons of any community orcommunities because the law confers privileges and advantages onpersons 'of any -other community in the same -circumstances. We thinkit is irrelevant to urge as a fact that a large section of Indians nowresident in Ceylon are disqualified because it is not the necessary legaleffect which flows from the language of the Act. Hence condition (I)is not satisfied. Even if this argument can be urged, it is clear to us .that persons of other communities would be similarly affected, becausethe facts which qualify or disqualify a person to be a citizen or a voterhave no relation to a community as such but they relate to his place ofbirth and to the place of birth of his father, grandfather or great grand-father which would equally apply to persons of any community. Hencecondition (2) is not satisfied.
The first respondent has made a fundamental error in travellingoutside the language of the statutes to ascertain their meaning. Heappears to have considered that the proper mode of approach was togather the intention of the legislature in passing the impugned statutesby first reading the minds of the Commissioners appointed to recommendconstitutional changes rather than by examining the language of thestatutes and what its plain meaning conveys. He says—
“ In order to answer the questions arising in this case it is necessaryto see what has been the development of the franchise law in thiscountry. As stated bj; Hord Sumner in Attorney-General for Alberta v.Attorney-General for Canada, ‘ It is quite legitimate to look at thelegislative history as leading up to the measure in question ’ ”.
,It seems to us that the inherent power of a sovereign state to determinewho its citizens should be and what qualifications they should possessto exercise the franchise was a consideration more germane to the issuesbefore him than a perilous expedition to the political controversies of thepast. After reading the Soulbury Commission Report and the connectedSessional Papers he seems to have formed the opinion that section 29was intended to be a safeguard for minorities. He then appears tohave examined the affidavit PI made by the second respondent and tohave been influenced by the statement in it that thousands of Indiansdomiciled in Ceylon have had their names deleted from the register ofelectors “ by the simple expedient of deleting practically all non-Sinhalese names ” and regarded the action of the registering officers aspart. of the legislative plan to discriminate against the Indians. It isimportant to note that no materials were placed before hind,. assumingthat such materials were relevant to the issues which he had’to try,
40
Mudanayake v. Sivagnanasunderam
as to how many of the persons whose names were arbitrar;ly expungedwere entitled to be restored to the register. He has overlooked the factthat when an enactment is put into force one community may be affectedby it more adversely than another. A high income or property quali-fication may affect more adversely the voting strength of one communitythan another. Would that be discrimination? If the eSects of a con-troversial piece of legislation are weighed in a fine balance not muchingenuity would be needed to demonstrate how, in its administration,one community may suffer more disadvantages than another. Toembai’k on an inquiry, every time the validity of an enactment is inquestion, into the extent of its incidence, whether for evil or for good,on the various communities tied together by race, religion, or castewould be mischievous in the extreme and throw the administration ofActs of the legislature into confusion. The first respondent appears tohold the view that the Indians who were qualified for the franchise underthe laws prior to the Ceylon (Parliamentary Elections) Amendment Act,No. 48 of 1949. had acquired a vested right to continue to exercise thefranchise and that if any legislation, in its administration, had the effectof taking away the franchise from large sections of the community, suchlegislation would for that reason be discriminatory. This view cannot besupported. The Parliament of Ceylon has the power to alter the electorallaw in any manner it pleases if it thinks it necessary to do so for the goodgovernment of the country subject to the narrow limitation in section 29.It has the power to widen or to narrow the franchise. If it widens thefranchise the more advanced communities may feel that they are affected,on the other hand if it narrows the franchise the less advanced communi-ties may also feel they are adversely affected. If it is open to aperson to say that as a result of the alteration the voting strength ofhis community has been reduced, as the Attorney-General remarkedParliament will only have the power to pass legislation as to what thepolling hours or the polling colours should be.
The 1st respondent has relied on a passage in the judgment ofFrankfurter J., in Lane v. Wilson 1 as showing that the CitizenshipAct, on which the franchise was made to depend was as objectionableas the “ grandfather clause ” which was declared in Frank Guinn andJ. J. Beal v. United States 2 to be a violation of the 15th Amendment ofthe Constitution. We think that the comparison between the Oklahomalegislation and the Citizenship Act is ill founded. The provision inthe Oklahoma Constitution which was attacked in Lane v. Wilson 1had a tainted history and, besides, manifested on its face an intentionto nullify the consequences of the decision in Frank Guinn and J. J.Beal v. The United States 2. The Oklahoma Statute and the CitizenshipAct present different problems of interpretation, having regard to boththe language used in the Statutes and the fundamental rights assuredby the Constitution of the United States which have no place in ourConstitution.
For these- reasons we are of opinion that ss1. 4 and 5 of the CitizenshipAct, No. 18 of 1948, and s. 3 (1) (a) of the Ceylon (Parliamentary Elec-
1 307 U. S. 268 : 83 Lawyers' Edition 1281.
* 238 V. S. 347 : 69 Lawyers' Edition 1340.
BASNAYAKE J.—Henry r. Hamidoon Hadjiar
47
tdons) Amendment Act, No. 48 of 1949, are not invalid and that thelatter enactment contains. the law relating to the qualification ofvoters.
In conclusion we would wish to express our appreciation of theassistance given to us by learned Counsel who argued the case before us.
We quash the order made by the 1st respondent on July 2, 1951, midremit the record to him so that he may make a fresh determination onthe basis that^neither sections 4 and 5 of the Citizenship Act, No. 18 of1948, nor s. 3 (1) (a) of the Ceylon (Parliamentary Elections) AmendmentAct, No. 48 of 1949, is void under s. 29 (3) of the Ceylon (Constitutionand Independence) Orders in Council, 1946 and 1947.
The 2nd respondent will pay the petitioners one set of costs inthis Court.
Applications allowed.