070-NLR-NLR-V-64-THE-ATTORNEY-GENERAL-Appellant-and-M.-G.-J.-MICHAEL-DE-LIVERA-and-another-Re.pdf
The Attorney-General v. Mickctetde Sdvvra
'
[In the Privy CocnsFCiL].
.1962 Present: Viscount Radclifie, Lord Evershed, Lord Jenkins,
Lord Devlin, and Mr. L. M. D. de Silva
THE ATTORNEY-GENERAL, Appellant, and M. G. J.MICHAEL DE LIVERA and another, Respondents
Privy Council Appeal No. 6 of 1961
S. C. 31 A-B—D. C. (Criminal) Colombo, N 1939
Bribery Act (No. 11 of 1954)—Section 14 (o)—Bribery of a member of Parliament—Quantum of evidence—“ In his capacity as such member ”—Ceylon (Constitution)Order in Council, 1946, as. 18, 27, 46, 49 (2)—Parliament (Powers and Privileges)Act (No. 21 of 1953), ss. 7, 8.
Section 14 (o) of the Bribery Act (No. 11 of 1954) runs os follows :—
“ A person—
(o) who offers any gratification to'a judicial officer, or to a member ofeither the Senate or the House of Representatives, as an induce-ment or a reward for such officer’s or member’s doing or forbearingto do any act in his judicial capacity or in his capacity as suchmember,
shall be guilty of an offence punishable with rigorous imprisonment fora term not exceeding seven years or a fine not exceeding five thousandrupees or both. Provided, however, that”
Held, that, where the facts show clearly that a member of Parliament hascome into or been brought into a matter of Government action that affects hisconstituency, that his intervention is attributable to his membership and thatit is the recognised and prevailing practice that the Government Departmentconcerned should consult the local M. P. and invite his views, the action thathe takes in approaching the Minister or his Department is taken by him “ in hiscapacity as such member ” within the meaning of Section 14 (a) of the BriberyAct.
In interpreting the meaning of the words of the Bribery Act which speak ofthe capacity of a member of the House of Representatives it is proper to drawany assistance that can be obtained from practices, conventions or rulings thatgovern the conduct of members of-the House of Commons of the UnitedKingdom. Although the Constitution of Ceylon is laid down by a writteninstrument, unlike that of the United Kingdom, this distinction is not of nnysignificance for the determination of what is the “ capacity ” of a member ofParliament in either country.
DXIV
2R 7650—1,885 (1/68)
410 VISCOUNT RADCLIFFE-—The Attorney-General v. Michael de Livera
A.PPEAL, with, special leave, from a judgment of the Supreme Courtreported in {I960) 62 N. L. R. 25.
Neil Lawson, Q.C., with Dick Taverne and M. Kanaq asunder am,'* for-the appellant.
. E. F-. N. Gratiaen, Q.O., with S. Nadesan, Q.C., Godfrey le Quesne andBala Nadarajah, for the 1st accused-respondent.
No appearance for the 2nd accused-respondent.
Cur. adv. wit.
■ November 5, 1962. [Delivered by Viscount Radcliffe]—
* •
This appeal raises for decision a single point: What is the properinterpretation of the words “ in his capacity as such member ” whichappear in Section 14 (a) of the Ceylon Bribery Act (No. 11 of 1954) ?The “ member ” referred to is a member of the Senate or the House ofRepresentatives and the section, as amended by the addition of a provisothat was added in 1956, runs as follows :—
** A person—
(а)who offers any gratification to a judicial officer, or to a member
of either the Senate or the House of Representatives, as aninducement or a reward for such officer’s or member’s doing orforbearing to do any act in his judicial capacity or in his capa-city as such member, or
(б)who, being a judicial officer or a member of either the Senate
or the House of Representatives, solicits or accepts any gratifi-cation as an inducement or a reward for doing or forbearing todo any act in his judicial capacity or in his capacity as suchmember,
shall be guilty of an offence punishable with rigorous imprisonment fora term not exceeding seven years or a fine not exceeding five thousand■ rupees or both :
Provided, however, that it shall not be an offence under the precedingprovisions of this section for any trade union or other organization tooffer to a member of either the Senate or the House of Representatives,or for any such member to accept from any trade union or otherorganization any allowance or other payment solely for the purposes ofhis maintenance.
VISCOUNT RADCLIFFE—The Attorney-General v. Michael de IAvera 411
The respondents were found guilty in the District Court of Colombo ofoffences under this section, the first respondent, de Livera, of having offereda gratification to a Mr. Munasinghe, member for Chilaw in the House ofRepresentatives, and the second respondent, Fernando, of having abettedthe offence. .They were sentenced to terms of rigorous imprisonment for9 and 6 months respectively. These convictions were set aside on appealto the Supreme Court of Ceylon by a judgment dated 12th April, 1960, thelearned Judges of that Court being of opinion that the gratification offeredto Mr. Munasinghe by the first respondent was not offered to him as aninducement for doing any act in his capacity as a member of the House ofRepresentatives.
From this judgment, which no doubt has implications of some importancefor political and constitutional questions in Ceylon, the Attorney-Generalof Ceylon has appealed to this Board by special leave. The first respon-dent was, the second respondent was not, represented at the hearing of theappeal.
The question is not one that is covered by any previous judicial autho-rity. Their Lordships have not derived any aid to its solution from theseveral decisions that were canvassed in argument or are noticed in theSupreme Court judgments. In their view its answer depends ultimatelyupon the special facts proved at the trial.
A member of the House of Representatives in Ceylon derives hisconstitutional status from the Ceylon (Constitution) Order in Council, 1946,which prescribed the existing Constitution of the Island. The systemthereby established is that of a bi-cameral legislature in the form of aParliament, which itself consists of the Sovereign, represented by theGovernor, the Senate and the House of Representatives ; an independentJudiciary ; and an Executive, the powers of which are vested in theGovernor. The general direction and control of government are, however,entrusted to a Cabinet of Ministers under a Prime Minister, and theCabinet is by section 46 of the Order declared to be “ collectively respon-sible to Parliament ”. Moreover, Section 49 (2) provides that a Ministermust cease to hold his office at the expiration of any period of fourconsecutive months during which he has not been a member of eitherChamber. Thus the Constitution is explicitly designed to secure thesubordination of the Executive to the Legislature through their commonmeeting ground in the procedures of Parliament and, although thereare many variations in matters of detail, its general conceptions are seenat once to be those of a Parliamentary democracy founded on the patternof the constitutional system of the United Kingdom.
With immaterial exceptions, members of the House of Representativesare elected as such by electoral districts which are provided for by Part IVof the Order in Council. So far as this Order itself goes, there is nothing init that lays down either the powers or the duties of a member, except thatSection 18 inferentially confers the right of voting in the Chamber byenacting that any question proposed for decision for either Chamber is to
412 VISCOUNT RADCLIFFE—The Attorney-General v. Michael de Livera
bo determined by a majority of votes of those members present and voting.There is also a section, S. 27, which deals with the privileges of the Senateand House of Representatives by declaring (sub-section 1) that “Theprivileges, immunities and powers of the Senate and House of Representa-tives and of Senators and Members of Parliament may be determined andregulated by Act of Parliament, but no such privileges, immunities orpowers shall exceed those for the time being held or enjoyed by theCommons House of Parliament of the United Kingdom or of itsMembers
The affinity between the Parliamentary conceptions and practices of theUnited Kingdom and of the Island of Ceylon is underlined by two furtherconsiderations. The Parliament (Powers and Privileges) Act (No. 21 of1953)/ which was.enacted under the authority of Section 27, containedamong other provisions two sections, sections 7 and 8, of which; onedeclared that the House and its members should have, in addition toprivileges, immunities and powers conferred by the Act, the same •immunities as those enjoyed by members of the House of Commons inthe United Kingdom, and the other enacted that in any enquiry touchingthe privileges, immunities and powers of the Ceylon Parliament orits members, an authorised printer’s copy of the Journals of theHouse of Commons or of its proceedings or of a report of oneof its Committees should he received in evidence without furtherproof. Further, the Standing Orders of the House of Representativesare closely modelled on the detailed procedures of the United KingdomHouse of Commons and the influence of passages in Erskine May’s“ Parliamentary Practice ” can be traced with certainty both in the1953 Act and in the Standing Orders.
Their Lordships think that what has been said is sufficient to show thatin seeking to interpret the meaning of the words of the Ceylon BriberyAot which speak of the capacity of a member of the House of Representa-tives: it is proper to draw any assistance that can be obtained frompractices, conventions or rulings that govern the conduct of members ofthe House of Commons of the United Kingdom. The Constitution ofCeylon, it is true, is laid down by a written instrument, unlike that of theUnited Kingdom, but this distinction is not in their view of anysignificance for the determination of what is the “ capacity ” of .a memberin either country. It is not the purpose of the 1946 Order in Council toset out or lay down any list of the functions of an elected member ofParliament beyond providing for the constitutional means of bringingsuch persons into existence and for their right as a body to legislatethrough the medium of a majority vote. It would be misleadingtherefore to confine the idea of a member’s capacity entirely withinthe limit of those activites which the written Constitution specifioallynotices as falling within his constitutional function, in effect thesole activity of voting upon motions or resolutions of his Chamber. The
VISCOUNT RADCLEFFE—The Attorney-General v. Michael de Livera 413
Standing Orders themselves envisage a wider range of action as appropri-ate to an individual member, as, for instance, the presentation of petitionsto the Chamber, the institution of motions and the putting of questions foranswer.by the Prime Minister, Minister or Parliamentary Secretary.All these specific activities are certainly tied to what takes place in proceed-ings on the floor of the House : but Their Lordships are satisfied that indetermining what a member does in his “ capaoity as such ” within themeaning of those words in the Bribery Act the answer must be found inwhat can be learnt of the constitutional conventions and practices of theday rather than ‘by exclusive reference to the wording of the Constitutionor the Standing Orders of the House or any similar document.
Their Lordships have thought it right therefore to take account of suchconsideration as has been given to this matter in connection with theHouse of Commons of the United Kingdom as well as to ascertain thepractices and conventions ruling in Ceylon. In fact no direct assistance isobtainable from the United Kingdom. The words used in the CeylonBribery Act “ in his capaoity as such ” have not presented themselves inthat form to the House of Commons, although it is likely that they arethemselves an echo of some words that appear in Erskine May’s “ Parlia-mentary Practice ” (see, for instance, the current 16th Edition of ErskineMay at pp. 122, 124). What has come under inquiry on several occasionsis the extent of the privilege of a member of the House and the comple-mentary question, what is a “ proceeding in Parliament ”? This is notthe same question as that now before the Board, and there is no doubtthat the proper meaning of the words “ proceedings in Parliament ” isinfluenced by the context in which they appear in Article 9 of the Bill ofRights (1 Wm. and Mary, Sess. 2, C.2); but the answer given to thatsomewhat more limited question depends upon a very similar considera-tion!, in what circumstances and in what situations is a member of theHouse exercising his “ real ” or “ essential ” function as a member ? For,given the proper anxiety of the House to confine its own or its members’privileges to the minimum infringement of the liberties of others, it isimportant to see that those privileges do not cover activitieis that are notsquarely within a member’s true function.
Thus, even in recent years, this question has come under debate : in theSandys case in 1938, in the Allighan case and the Strauss case since the lastwar ; and, though the occasion does not seem to be noticed in the currentedition of Erskiife May, in Henderson's case in 1945. It would not beuseful to examine those debates or proceedings in any detail, since itwould be impossible to extract from them any settled constitutionalprinciple that could be regarded as governing the circumstances of thisappeal. Views to some extent in conflict with each other have beenexpressed on different occasions and in the most recent, the Strauss case,the vote of the House was not in accordance with the opinion of itsCommittee of Privileges or of that of the Select Committee which consideredthe Sandys case in connection with the Official Secrets Act. The mostperhaps that can be said io that, despite reluctance to treat a member’s
2*-K 7550 ( 1 /G3)
414 VISCOUNT RADCLIFFE—The Attorney-General v. Michael d-c Livera
privilege as going beyond anything that is essential, it is generally recog-nised that it is impossible to regard his only proper functions as a memberas being confined to what he does on the floor of the House itself. Inparticular, in connection withhis approaches to or relations with Minister's,whether or net on behalf of one of his own constituents, it is recognisedthat his functions can include actions other than the mere putting downand asking of a Parliamentary question. Indeed, in the Strauss debate,speakers, though differing on the issue whether a member approaching aMinister on a departmental matter affecting his constituency was takingpart in a proceeding in Parliament, were at one in thinking that he wouldbe performing his duty as a member in so acting. Henderson's case,moreover, can only be regarded as directly recognizing that the privilegeof Parliament extends beyond the activities of questioning, voting ordebate. For there the Committee of Privileges (see Reports of Committees1945, III, at p. 615) reported in terms that are sufficiently relevant to thecase under appeal to justify quotation :—
“ (Para. 2) … In the present case the letter invited the Member totake up a matter with a Minister. In such a case a Member need not,of course, raise the matter in Parliament, but he always can put downa question or raise the matter in other ways in the House, and it ismainly because a Member has this power that constituency cases areput to him.
“ (Para, 3). Your Committee have no doubt that an offer of moneyor other advantage to a Member in order to induce him to take up aquestion with a Minister would be a breach of privilege. …”
Having said this much by way of preamble, Then* Lordships are now ina position to address themselves to the facts of this appeal. Theyapproach them on the basis, as they have now explained, that in con-sidering whether the inducement offered by the first respondent to Mr.Munasinghe, the member for Chilaw, was offered to induce him to actin his capacity as such member, the inquiry is not confined to ascertainingwhether he was to do something specifically assigned as a member’s functionin the Constitution Order or something which was actually a proceedingon the floor of or in the precincts of the House. They recognise thatthere are many things winch a member may be invited to do becausehe is a member and enjoys as such a status and prestige which supplythe motive of the invitation but in doing which he would not be actingin his capacity as a member. But, with this recognition made, theyare of’ opinion that the circumstances of any particular case may showthat in the light of prevailing practices or conventions observed bymembers of the House some act for which an inducement has been offeredis sufficiently closely bound up with and analogous to a proceeding inthe House as to be properly described as done by a member in his capacityas such.
A summary of the material facts of the case is contained in the judg-ment of Weerasooriya, J., delivered in the Supreme Court. There wasno dispute about w'hat had occurred and it is convenient therefore to
VISCOUNT RADCUIFFE—The Attorney-General v. Michael de Livera 415
repeat without variation what was said in that judgment, the relevantpart of which is as follows :—
“ At the material time Mr. Munasinghe was the Member for Chilawin the House of Representatives. He was also the Chief GovernmentWhip and General Secretary of the Sri Lanka Freedom Party. VincentEstate is situated within his constituency and was OAvned by the 1staccused. On the 28th October, 1958, Mr. Munasinghe addressed tothe Minister of Lands and Land Development the letter PI stronglyrecommending as a matter of urgency the acquisition of the VincentEstate for alienation to the inhabitants of certain villages in the ChilawDistrict who had been displaced from their homes as a result of floods.PI bears the printed heading ‘ House of Representatives ’ and issigned by Mr. Munasinghe as ‘ M.P. ChilaAv At the time theMinister of Lands and Land Development, Mr. C. P. de Silva, Avasthe authority empowered under the Land Acquisition Act, No. 9 of1950, to initiate acquisition proceedings and to give the necessarydirections in that behalf. The question whether Vincent Estateshould be acquired or not Avas, therefore, primarily a matter forhim.
On the representations contained in Pi the Minister decided thatVincent Estate should be acquired, and he gave the follOAving directionsto the Land Commissioner : ‘ For early action. M.P. ChilaAv asksthis land for alienation in £ acre lots for people Avho got ruined bythe floods and those people of ChilaAv town Avho have employmentbut no houses to live in. Please take acquisition proceedingsimmediately ’. Soon afterwards the Government Agent, Puttalam,
. called for a report from the Divisional Revenue Officer regarding theproposed acquisition. Before that report Avas received, the 1st accusedAvho, presumably, had learnt of the steps that Avere being taken, saAV theGovernment Agent. The object of the visit Avas clearly to dissuade theauthorities from proceeding Avith the acquisition. The 1st accusedtold the Government Agent that the estate, in part, %vas itself liable tofloods and therefore not suitable for a housing scheme. TheGovernment Agent referred the 1st accused to Mr. Munasinghe as theMember of Parliament for Chilaw and the person Avho put forward theproposal to acquire the estate, and he also informed the 1st accused thatthe final authority on the question Avhether it should be acquired or notAvas the Minister of Lands and Land Development.
It is the evidence of Mr. Munasinghe that prior to the 19th December,1958, the 1st accused Avas a stranger to him, but he had known the 2ndaccused Avell from about 1947, Avhen Mr. Munasinghe became Chairmanof' the Madampe To Am Council, in Avhich office he continued till 1956except for a short break of about three months. During that periodthe 2nd accused Avas the Secretary of the Madampe Toavu Council andclosely associated Avith Mr. Munasinghe, whom he often visited in hisbungaloAv. At the time of the alleged offences, hoAvever, the .2nd
416 VTSCOUNT RADGLIFFE—The Attorney-General v. Michael de Livera
accused was the Secretary of- the Puttalam Urban Council while Mr.Munasinghe was residing in Kelaniya. It may be inferred that the1st accused knew the 2nd accused and also the latter’s previousassociation with Mi'. Munasinghe. According to Sir. Munasinghe, the2nd accused came to his house in Kelaniya on the morning of the 19thDecember, 1958. The 2nd accused said that he came at the instanceof the 1st accused, who was ‘ pestering ’ him for an introduction toMr: Munasinghe, that the 1st accused was anxious that his estateshould not be acquired and was prepared to give Mr. Munasinghe orhis party or any person nominated by Mr. Munasinghe a present ofmoney if the acquisition was stopped. Mr. Munasinghe stated thathe requested the 2nd accused to come with the 1st accused at 7.30 p.m.on the same day and the 2nd accused went away promising to do so.In the meantime Mr. Munasinghe got in touch with the Police and itwas arranged for some Police officers to be present in concealmentat the house of Mr. Munasinghe within hearing distance of any conver-sation that would take place between him and the accused when j theymet in the evening. Mr. Munasinghe has stated in evidence that at thatmeeting the 1st accused offered him Rs. 5,000/— in cash to stop theacquisition, that he undertook to give the 1st accused on the j22ndDecember, at about 9.30 or 10 p.m., being the date and time fixed fortheir next meeting, a letter addressed to the Minister of Lands andLaiid Development withdrawing his earlier application for theacquisition of the estate, in return for which the 1st accused was tohand him the sum of Rs. 5,000/-.
On the 22nd December the Police were again present, unknown tothe accused, when the latter came to see Mr. Munasinghe as arranged.On that occasion Mr. Munasinghe gave the 1st accused the letter P3addressed to the Minister in which he withdrew his application for theacquisition of the estate, stating that it was not suitable for housingpurposes as a part of it gets submerged during seasonal floods. P3 iswritten on notepaper bearing the printed heading ‘ Chief GovernmentWhip ’ and is signed by Mr. Munasinghe as ‘M.P. Cliilaw ’. The 1staccused took the letter and handed to Mr. Munasinghe a wrappedparcel, P6, containing the Rs. 5,000/—. As for the 2nd accused, apartfrom being present, he neither did nor said anything. When theaccused were about to depart the Police officers came forward, disclosedtheir identity and took into custody, among other things, the letterP3 and the parcel P6. ”
i
It is plain from this account that Mr. Munasinghe played a dominatingpart in the proposal to acquire the Vincent Estate for the accommodationof the’ flood victims in the Chilaw District. It was he who initiated theproposal by his letter to the Minister of Lands and Land Developmentdated 28th October, 1958. He might indeed have taken this step frommore than one standpoint of his personal position—as a prominent localman, as an active politician, general secretary of the Sri Lanka FreedomParty, even perhaps as Chief Government Whip. In fact, however, it
VISCOUNT RADCLIFFE—The Attorney-General v. Michael de Livera 417
is to be noted that his letter was headed “House of Representatives ”and his signature at the foot had added to it the words tt M.P.Chilaw
Their Lordships think that the evidence as a whole admits of only oneconclusion, that Mr. Munasinghe himself and those dealing with him,including the first respondent, regarded his intervention in the VincentEstate matter as attributable to his rights and duties as a member ofthe House of Representatives and not to any other aspect of his generalpublic position ; and in their view he was rightly so regarded. As soonas his letter was received by the Minister, the latter noted on it as theopening of his instructions to the Land Commissioner—“ For early action—
M.P. Chilaw asks this land for early alienation. …”
The Minister, evidently, recognised the propriety of the local member’sintervention and, however much attention modem democratic theorymay accord to Edmund Burke’s aadress to the electors of Bristol andmay agree that an elected member once elected is elected to act andvote as one of the representatives of the Commons as a whole, it wouldbe absurd not to recognise that it also accords to him a special responsi-bility in representing the needs and concerns of his constituents toMinisters with whom he is or may be brought into contact in the relationsbetween the elected assembly and the political executive. The prevail-ing practice and understanding in Ceylon, Their Lordships think, areshown clearly enough by the two passages of evidence which record
that when the first respondent first learnt of the proposal to expropriatethe Vincent Estate, he went to see the Government Agent who referredhim to “ Mr. Munasinghe as the Member of Parliament for Chilaw andthe person who put forward the proposal to acquire the Estate ” and (2)that the Land Commissioner followed the practice of regularly consultingthe local M.P. on such questions of acquisition. To quote from theevidence of Mr. Gunawardene, Land Commissioner, “ As Land Com-missioner, as soon as I receive the Government Agent’s report statingthat the land could be acquired I write to the M. P. of the area wherethe land is situated to find out his views and that is a matter of routine.We write to the M.P. of the area because generally as the representativeof the people of the area he might be able to advise us ”.
Their Lordships cannot therefore accept the view of the Supreme Courtthat the prosecution has failed to prove that in writing P.l or P.3 Mr.Munasinghe was acting in the exercise of any function as member ofParliament. It is not altogether clear to them whether this view isfounded on an interpretation of the words “ in his capacity as such ”that limits their meaning more narrowly than Their Lordships them-selves think correct or on a reading of the facts which leaves it uncertainwhat character Mr: Munasinghe had assumed in his intervention overthe Vincent Estate. The judgments of the two learned members of. that Court very likely give somewhat different weight to the varyingelements of law and fact that are intermixed in the case. The judgment
418 VISCOUNT RADCLIFFE—The Attorney-General v. Michael dc Livera
of Sinnetamby, J., at any rate, seems to found itself on a proposition oflaw which is expressed in the following passage :—
“ In interpreting Section 14, therefore, it seems to me, one mustfirst ask oneself whether the act for the doing of which a gratificationis offered is one which the member of Parliament can only do becausehe is a member of Parliament. If so, it is something which ;he doesin his capacity as such member. If it is something which he couldhave done even though he were not a member, the mere fact1 that heis a member does not bring the act within the purview of the section.In the result, in order to decide whether a person is acting in hiscapacity as a member of Parliament, one has first to ascertain whatexclusive legal rights, powers, duties, privileges and so on attach tomembership of Parliament. If the act falls outside the exclusive rights,powers, etc., of a member of Parliament, then one cannot say thathe is acting in his capacity as such member ”.
With all respect to this clear enunciation of principle, Their Lordshipsare of opinion that it puts too limited a construction on the words of theAct and might in some cases result in defeating the intention expressedby those words. To make the result depend upon an inquiry into therange of the “ exclusive ” powers and duties of a Member of Parliamentis likely to hang it solely upon the actual written provisions of theprevailing Constitution, and to do this may require a virtual ignoringof the plain facts of a particular case. Where the facts show clearly,as they do here, that a member of Parliament has come into; or ’beenbrought into a matter of Government action that affects his constituency,that his intervention is attributable to his membership and that; it isthe recognised and prevailing practice that the Government Departmentconcerned should .consult the local M.P. and invite his views, TheirLordships think that the action that he takes in approaching theMinister or his Department is taken by him “ in his capacity as suchmember ” within the meaning of Section 14 (a) of the Bribery Act.
Their Lordships will humbly advise Her Majesty that the appealshould be allowed and that accordingly the judgment and order of theSupreme Court of Cejdon dated 4th April, 1960, should be reversed andthe convictions recorded against the respondents by the judgment andorder of the District Court dated 2nd May, 1959, should be restored.With regard to the sentences imposed by that Court as a result of theconviotions (which were also the subject of appeal to the SupremeCourt) Their Lordships think that a convenient and proper course isthat the case should be remitted to the Supreme Court’ to consider whatpunishment is required in the interests of justice, having regard to theguilt of the respondents as now established. They will humbly adviseHer Majesty accordingly.
Appeal allowed.