P. RANASINGHE, Appellant, and THE BRIBERY COMMISSIONER, Respondent

075-NLR-NLR-V-64-P.-RANASINGHE-Appellant-and-THE-BRIBERY-COMMISSIONER-Respondent.pdf


H. N. G. FERNANDO, J.—lianasinghe v. The Bribery Commissioner 449
1962 Present: H. N. G. Fernando, J., and L. B. de Silva, J.
P. RANASINGHE, Appellant, and THE BRIBERY COMMISSIONER,
Respondent
S. C. 4(62—Bribery Tribunal Case 35{J, 172}60
Bribery Tribunal—Constitutional invalidity of such Tribunal—Right of appeal againsta ccnvicticn—“ Judicial power ” —Amendment of a prevision in the Consti-tution Order in Council—Power of Court to question its validity—Importance ofSpeaker's Certificate—Bribery Act No. 11 of 1054, as amended by Act No. 40 of1053, s. 41—Ceylon (Constitution) Order in Council, 194b, at. 29 (3) (4), 55.
The conviction of a person by d Bribery Tribunal, as distinct from thoimposition of a sentence, is an exorcise of judicial power.
A challenge of the jurisdiction of a Bribery Tribunal to convict a person can bemade in the exercise of a right of appeal conferred by the Bribery Act itself.In such a case, there is no question of the wholesale challenge of the entireBribory Act. The objection which lies against a conviction by a BriberyTribunal is that the. judicial power validly vested in the special tribunal cannotbe lawfully exercised by persons who are appointed to the Tribunal by theGovernor-General, and not by the Judicial Service Commission.
Section 55 of the Ceylon (Constitution) Order in Council, 1946, vests in thoJudicial Service Commission the exclusive power to appoint to judicial office. whother tho appointment is mado by name or whether it is made by office.
Under Section 29 (4) of the Constitution Order in Council, an Act of Parlia-ment which conflicts with any of the provisions of tho Constitution Order inCouncil i3 invalid unless passed by a two-thirds majority in the Blouse of Re-presentatives. The fact that tho Act has received the Royal Assent cannotprevent the Court from holding it to be invalid unless, as provided by Section29 (4), the Act has endorsed on it a certificate of the Speaker that it was passedby the requisite majority.
Section 29 (4) of the Constitution Ordor in Council is applicable to a Billwhich, though not in form on amending Bill, contains provision which is inconflict with some constitutional provision. Accordingly, in tho absence ofthe Speaker’s Certificate endorsed upon the Bribery Act, validity cannot beclaimed for any provision in that Act which is inconsistent with Section 55 ofthe Constitution Order in Council.
AlPPEAL under the Bribery Act.
Nimal SenanayaJce, for the Appellant.
R.S. Wanasundera, Crown Counsel, for the Respondent.
• Cur. adv. vult.
December 20, 1962. H. N. G. Fernando, J.—
i,
The recent decision of this Court in Piyadasa's case if followed,would compel us to hold on the present appeal that “ a Bribery Tribunalhas ho jurisdiction to try and find the Accused guilty of the offence of
xPiyadasa v. The Bribery Commissioner (1962) 64 N.L.R. 385..
450
H. 1ST. G. FERNANDO, J.—Ranasinghc v. The Bribery Commissioner—*
bribery ” (per Tambiak J.), and accordingly to quash the conviction of
the appellant and the sentence passed against him. But learned Crown
Counsel argued that the question should be re-considered and relied on
two grounds ;
That a conviction by a Bribery Tribunal, as distinct from theimposition of a sentence, is not an exercise of judicial power, a propositionwhich is supported by the observations of Sansoni J., in the case ofSenadhira x, to the effect that the power to adjudicate is only an arbitralpower.
That a challenge of the jurisdiction to convict is fundamentaland amounts to a challenge of the validity of the entire Act, and canno,therefore be made in the exercise of a right of appeal conferred by theAct itself.
» Both these matters have been dealt with in my own unreported judg-ment in Kader Saibo Seyed Jailabdeen v. Abdul Rakaman Janina Umma 2.
I there state that I no longer adhere to the opinion I had formed whenDon Antony’s case 3 was decided. On the contrary, I express myagreement with Tambiak and Sri Skanda Rajah JJ., that, in thecontext of the relevant provisions of the Act, a Bribery Tribunal doesexercise judicial power when it tries a person on a charge of bribery.As to Crown Counsel's second argument, hiy opinion as stated in theunreported judgment is that there is no question of a wholesale challengeof the entire Act, that the Legislature can validly confer judicial poweron specially created tribunals, and that the objection which lies againsta conviction by a particular Bribery Tribunal is that the judicial powervalidly vested in the special tribunals cannot be lawfully exercised bypersons who are appointed to the Tribunal by the Governor-Goneral,and not by the Judicial Service Commission. I will’not here repeat myreasons, but would like to add one further observation. In examiningan enactment with reference to any alleged Constitutional invalidity,a Court must strive to reach a conclusion which will render the will of theLegislature effective, or as effective as possible. The conclusion I reachwith reference to the Bribery Act is in accord with this principle, for inmy opinion the primary intention of Parliament was to establish thespecial tribunals and to assign to them the jurisdiction to try charges ofbribery, The intention that the Governor-General should have powerto appoint judges to these tribunals, however important, is ancillaryto the primary intention, which latter intention is impaired only in a slightdegree, and not materially, by a decision that the power of appointmentalone is ultra vires.
Crown Counsel has in this appeal raised what is perhaps a new pointfor consideration. His contention was that the “ office ” establishedby the Bribery Act is the office of membership of the panel constituted
1 Senadhira v. The Bribery Commissi■ ner [1961) 63 N. L. It. 313.
~ Jailabdeen v. Janina TJmma S. C. 2jl962 Quazi Court No. 626 Colombo SouthS. C. M. 17.12.62. [Sea 64 N. L B. 419.]
3 Don Antony v. The Bribery Commissioner (1962) 64 N. L. B. 93.
H. N. G. FERNANDO, J-—Ranasinghe v. The Bribery Commissioner 451
under Section 41 of the Act. This office he concedes to be a paid office,but it is not a judicial office, for the panel does not as such try charges ofbribery. He argued that even if a Bribery Tribunal does exercise judicialpower, the Governor-General appoints only to the panel, and not to theTribunal itself. But is a Court to notice only the mere act of appointmentto the panel, and to ignore the purpose for which the panel is created,namely the purpose that Bribery Tribunals shall be constituted byselection from the panel ?
Let me take the case of a statute which provides that Crown Counsel .shall in specified circumstance function as Magistrates. The sameargument may be advanced, namely that the original appointment of aperson to be a Crown Counsel was not to a judicial office, and that whena Crown Counsel thus functions as a Magistrate in pursuance of thestatute he does so by virtue of his appointment to the non-judicial officeof Crown Counsel, and does not, when So functioning hold a paid judicialoffice. The answer to this argument is that Section 55 of the Constitutionvests in the Judicial Service Commission the exclusive power to appointto judicial office, whether the appointment is made by name or whetherit is made by office. The hypothetical statute would conflict with Section55 in that the Statute itself, that is Parliament itself, would purport toappoint Crown Counsel by office to be Magistrates. Although a CrownCounsel so functioning may be paid only the salary of his primary office,the payment for the period when ho functions as Magistrate would bein respect of the judicial office to which the statute appoints him.
Similarly, the legal effect of the Bribery Act is that it purports toappoint to a Bribery Tribunal such persons from a panel appointed by theGovernor-General as the Chairman may select. The Act designates,by office, persons holding office on the panel to be judges of Bribery Tri-bunals. But that pow er of designation belongs exclusively to the Com-mission. Crown Counsel’s argument is in defiance of the importantconstitutional principle that “ you cannot do indirectly that which youcannot do directly ”.
Although Section 29 (4) was not expressly mentioned in the Judgmentin Senadhira’s case, the Court assumed that a provision of an Act ofParliament which conflicts with Section 55 of the Constitution is invalidunless passed by a two-thirds majority in the House of Representatives.The point is expressly mentioned in the Piyadasa judgment. Section29 (4) provides—
"In the exercise of its powers under this section, Parliament mayamend or repeal any of the provisions of this Order ….
Provided that no Bill for the amendment or repeal of this Ordershall be presented for the Royal Assent unless it has endorsed upon ita certificate under the hand of the Speaker that the number of votescast in favour thereof in the House of Representatives amounted tonot less than two-thirds of the total number of members of the House
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4£>2 H. ]ST. G. FEKXANDO, J.—Ranasinghe v. The Bribery Commissioner
Every certificate of the Speaker under this sub-section shall beconclusive for all purposes and shall not be questioned in any courtof law
In the present appeal, Crown Counsel made two important andinteresting submissions with regard to this subsection :—
(а)That because there is no express provision in subsection (4) declaring
an amending or repealing Act to be null and void if not passedby a two-thirds majority, the Court has no power to declaresuch an Act to bo void.
(б)That once a Bill has received the Eoyal Assent, the Court has no
power to inquire whether it was passed by the requisite majority,and must hold it to have been duly enacted.
In regard to the first of these submissions, Counsel pointed to theexpress provision for nullity which is made in sub-section (3), and urgedthat the absence of similar provision in sub-section (4) was deliberate andis decisive. For the general submission, he relied on three’decisions,one from Australia and two from South Africa.
In McC'awley v. the King1, the alleged conflict was between an imperialAct of 1867 establishing the Constitution of Queensland and an Act of1916 enacted by the Queensland Parliament. Section 16 of the Consti-tution Act had provided that the Commissions of Judges of the SupremeCourt of Queensland “ shall remain in full force during good behaviour ”.The 1916 Act set up an Industrial. Arbitration Court, and sub-section (6)of section 6 of this Act provided as follows :—
“ The Governor may appoint the President or any Judge of the
Industrial Court to be a judge of the Supreme CourtThe
President and each Judge of the Industrial Court shall hold office forseven years from the date of appointment.”
The Supreme Court of Queensland held the provision to be inconsistentwith the Constitution Act, because of the limitation of the term of officeto seven years, and on this ground held that the provision was void andand inoperative. The High Court of Australia was of opinion that theConstitution “ is a fundamental and organic law which can only be re-pealed or modified with special formality ”. That opinion was howeverrejected by the Privy Council. Lord Birkenhead drew a distinctionbetween what he termed a “ controlled” and an “uncontrolled” Consti-tution, the former of which he described as one in which the constitutionframers “ have created obstacles of varying difficulty in the path ofthose who would lay rash hands on the Constitution ”. His examinationof various constitutional statutes and instruments affecting Queenslandshowed that “ the Legislature of Queensland is ‘master of its own house,except in so far as its powers have in special cases been restricted ”. In theabsence of any special provision to the contrary in the Constitution, heheld that the Legislature was fully entitled to vary, the tenure of thejudicial office.
11920 A. C. 691.
H. N. G. FERNANDO, J.—Ranasinghe v. The Bribery Commissioner453
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I readily accept for Ceylon the principle as stated by Lord Birkenheadwhich is italicised above. But that principle does not entitle the Crownto maintain that ours is an “ uncontrolled ” Constitution ; for in additionto the special control imposed by sub-section (3) of Section 29, we have thegeneral control which sub-section (4) imposes in the case of any Bill toamend any provision of the Constitution. There was not, in the Constitu-tion of Queensland, any provision resembling our Section 29 (4).
The next case is that of Krause v. The Commissioner of Inland Revenuel,where, the Supremo Court of South Africa considered the validity of thelevy of income tax on the salary of a] judge of the Supreme Court of Trans-vaal. The objection to the levy was founded on a provision in theConstitution Act that the salaries of judges should not be diminishedduring their term of office. What is relevant for present purposes is thestatement of Wessels J. A. that “ except in the cases mentioned inSection 152 of the South Africa Act, the Courts of this country cannotdeclare a portion of an Act of Parliament unconstitutional ”. Section152 expressly authorised amendments of the Constitution, but in regard toBills affecting certain specified sections of the Constitution, it provided thatthey must be passed by both Houses of Parliament sitting together. Alaw to diminish the salaries of Judges clearly did not fall within the narrowand specific enumeration set out in Section 152. I need to observe only"fch&t, unlike Section 152 of the South Africa Act, our Section 29 (4) applies'ta^every Bill to amend any provision of the Constitution.
JEfid'other South African case cited by Crown Counsel, Harris v. Minister’dffhe Interior 2, virtually defeats his own argument. Five Judges of theSupreiue^Court of South Africa there held invalid an Act of 1951 which pur-portedftb establish separate electorates for “ whites ” and for “coloureds ”.pPhe’ ground of invalidity was that Section 35 of the ConstitutionAct gave equal rights of representation to all voters irrespective of race, .and that the right- could not be altered by an amending law unlesspassed by both Houses of Parliament sitting together. To reach thisconclusion, the Court relied on the simple fact that Section 152 of theConstitution expressly provided for such a sitting in the case of a Bill toamend Section 35. In the case of the Constitution of Ceylon, there is thesimple fact that Section 29 (4) contains express provision applicable to allconstitutional Bills.
– The South African judgment is of interest in another connection. TheAct which was impugned did not purport to amend or repeal Section 35,but only enacted a new law which the Court held to be in conflict .with thatSection. The ‘judgment accordingly supports the opinion that ourSection 29 (4) is applicable to a Bill which, though not in form an amendingBill, contains provision which is in conflict with some constitutionalprovision.
The second submission regarding Section 29 (4) requires some preli-minary explanation. The Proviso provides that no amending Billshall be presented for the Royal Assent unless it has endorsed on it acertificate of the Speaker that it was passed by a two-thirds majority of1 1929 A. D. 286.8 1952, 2 S. A. L. R. 423.
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H. N. G. FERNANDO, J.—Ranasinghe v. The Bribery Commissioner
the House of Representatives. The submission is that the Royal Assentto an amending Bill establishes conclusively its due passage into law, thatthe Proviso deals only with a matter of Parliamentary procedure, andthat, even though the Bill is not endorsed with the certificate, a Courtmust nevertheless regard it as having been validly enacted, and cannotinquire into the question of compliance with the terms of the Proviso.
Of course, if the intention of which the Proviso is the expression is inaccordance with this submission, the matter ends there. But is that theintention ? In my opinion, the language clearly manifests an intentionthat no Bill to amend any provision of the Constitution shall pass intolaw unless it had received the requisite majority in the House of Represen-tatives. The passage by such a majority is made a condition precedentfor enactment. Ordinarily, the question of fact, whether such a conditionhas been satisfied, is determinable by judicial inquiry. But in thiscontext, where the question relates to proceedings in Parliament, thepossibility of a judicial inquiry is very properly avoided. Instead, theproviso prescribes the sole means by which the question is to bedetermined, namely the Certificate of the Speaker endorsed upon aBill that it was passed by the requisite majority. The Certificate “ isconclusive for all purposes and shall not be questioned in any court oflaw.” These words indicate the function which a Court is intended toperform in the case of a constitutional amendment, that is, to ascertainwhether the Bill bears the Speaker’s Certificate, for it is upon proof orproduction of the Certificate that the Court becomes bound by its conclu-sive effect. The very proposition that a Court cannot “ look behind ”the Certificate implies that in the first instance the Court must “ lookfor ” the Certificate. The absence of the Certificate is as conclusive asits presence ; and in the absence of a Certificate the Court cannot beinvited to inquire and determine whether, nevertheless, the conditionprecedent was satisfied, for it is just such an inquiry that the subsectionintended to prevent. It follows that, in the absence of the Speaker’sCertificate endorsed upon the Bribery Amendment Act of 195S, validitycannot be claimed for any provision which is inconsistent with Section55 of the Constitution.
Crown Counsel thought that his argument derived some support fromthe observations upon Section 29 (4) made by Sir Ivor Jennings inThe Constitution of Ceylon (at page 56), but may not have been aware ofthe note in the Preface that the learned author was not attempting alegal exposition. These observations I have only examined after formingmy own opinion as to the intention and effect of the Proviso. They donot refer to the situation I have here to consider, namely the case of aBill which conflicts with the Constitution, but which does not bearthe Speaker’s Certificate.
P would hold for these reasons that the conviction of the appellantin this case and the orders made against him are null and inoperative,on the ground that the persons composing the Bribery Tribunal whichtried him were not lawfully appointed to the Tribunal.
Appeal allowed.