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

023-NLR-NLR-V-66-THE-BRIBERY-COMMISSIONER-Appellant-and-P.-RANASINGHE-Respondent.pdf


The Bribery Commissioner v. Ranasinghe
73
[In the Pbivy Council]
1964 Present: Viscount Radcllfle, Lord Evershed, Lord Morrisof Borth-y-Gest, Lord Hodson, and Lord PearceTHE BRIBERY COMMISSIONER, Appellant,and P. RANASINGHE, Respondent
Pbivy Council Appeal No. 20 of 1963
8. G. 4/62—Bribery Tribunal Case 35/1,172/60
Constitutional law—Bribery Tribunal—Persons composing the Tribunal—Invalidityof their appointment otherwise than by the Judicial Service Commission—“ Judicial officer”—Amendment or repeal of alterable provisions in the Cons-titution of Ceylon—Jurisdiction of the Courts to look behind the amending Actto see if it was validly passed—Requirement of Speaker's certificate—Votingand legislative power of Parliament—Bribery Act (Cap 26), as amended byBribery (Amendment) Act No 40 of 1958, ss. 2 (1), 41, 42, 45—Courts Ordi-nance (Cap. 6), s. 3—Ceylon (Constitution) Order in Council, 1946, ss. 3 (1),18, 29 (I) (2) (3) (4), 52, 53 (1), 55 (I) (5), 56.
s
The method prescribed by section 41 of the Bribery Act (ns amended bysection 24 of the Bribery Amendment Act No. 40 of 1958) for the appointmentof members of tho Panel of the Bribery Tribunal otherwise than by the JudicialServioe Commission is in conflict with section 55 (1) of the Coylon (Constitution)Order in Council, 1946, which provides that “ the appointment, transfer,disciplinary control of judicial officers is hereby vested in the Judicial ServiceCommission”. And inasmuch os the Bribory Amondmont Act of 1958, whichintroduced the mode of appointment of a Bribery Tribunal, did not complywith the procedural requirement imposed by tho proviso to subsoction (4) ofseotion 29 of the Constitution Order in Council regarding such an amendmentof the Constitution, section 41 of the Bribery Act (aa amended) is invalid.Accordingly, orders made by a Bribery Tribunal convicting and sentencinga person are null and inoperative on the ground that the persons composingthe Bribery Tribunal were not lawfully appointed to the Tribunal.
The words “ judicial officers ” in section 55 of the Constitution are notapplicable exclusively to judges of the ordinary Courts referred to insection 3 of the Courts Ordinance.
Where an Act of Parliament involves an amendment of any alterable provision in the Constitution, the Speaker’s certificate under section 29 (4) of theConstitution, stating that the number of votes cast in favour of the Bill in theBouse of Representatives amountod to not loss than two-thirds of tho wholenumber of Members of tho House (including those not presont), is an essentialpart of the legislative process necessary for amendment. Tho Courts of lawtherefore have a duty to look for the certificate in order to ascertain whetherthe Constitution has been validly amended. Statutory provisions enabling thesubsequent reprint of an Act cannot validato an invalid Act.
’ The foot that tho original Bribory Act of 1954 had on it a corlificato of theSpeaker does not have the consoquonce that any subsequent amondmnet ofthat Aot is automatically franked and does not need a separate certificate.Everyaraondinont of tho Constitution, in whatever form it may bo prosonted,needs a certificate undor soction 29 (4).
LXYI—4
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LORD PEARCE—2Vie Bribery Commissioner v. Ranasinghe
The legislative power of Parliament is derived from section 18 aJid section 29of the Constitution. While section 29 (3) expressly makes void any Act passedin respect of the unalterable provisions entrenched'in section 29 (2), whichshall not be the subject of legislation, any Bill which amends or repeals anyother provision in the Constitution in terms of section 29 (4) but does not haveendorsed on it a certificate under the hand of tho Spoakor is also, even thoughit receives tho Royal Assent, invalid and ultra vires.
Appeal from a judgment of the Supreme Court reported in(1962) 64 N. L. R. 449.
Neil Lawson, Q.C., with V. Tennekoon, R. K. Handoo, Ralph Milnerand V. 3. A. Pullenayegum, for the Appellant.
F. N. Gratiaen, Q.C., with M. P. Solomon, for the Respondent.
Cur. adv. vult.
May 5, 1964. [Delivered by Lord Pearce]—
The appellant is the Bribery Commissioner of Ceylon on whom lies theduty of bringing prosecutions before the Bribery Tribunal which wascreated by the Bribery Amendment Act 1958. The respondent wasprosecuted for a bribery offence before that Tribunal. It convicted andsentenced him to a term of imprisonment and a fine. On appeal theSupreme Court declared the conviction and orders made against himnull and inoperative on tho ground that the persons composing theBribery Tribunal which tried him were not lawfully appointed to theTribunal. In the present case as in soino earlier reported cases theCourt took the view that tho method of appointing persons to thePanel from which the Tribunal is drawn offends against an importantsafeguard in the Constitution of Ceylon.
The Constitution is contained in the Ceylon (Constitution) Orders inCouncil 1946 and 1947. Thero is no need to refer in detail to thevarious Acts and Orders that established the independence of Ceylon.Viscount Radcliffe in Attorney General of Ceylon v. de Livera1 said of the •Constitution, “ although thero are many variations in matters of detail,its general conceptions are seen at once to be those of a parliamentarydemocracy founded on the pattern of the constitutional system of theUnited Kingdom ”.
The Constitution does not specifically deal with the judicial systemwhich was established in Ceylon by the Charter of Justice of 1833 andis dealt with in certain Ordinances, tho principal being the Courts Ordi-nance Cap. 6. The power and jurisdiction of the Courts are thereforenot expressly protected by the Constitution. But the importance ofsecuring the independence of judges and of maintaining the dividing
1 [1063] A. C. 103 at p. 118.
LORD PEARCE—The Bribery Commissioner v. Ranasinghe
76
line "between the judiciary and the executive was appreciated by thosewho framed the constitution. See the Ceylon Report of the SoulburyCommission oil Constitutional Reform, Appendix I (I) paragraphs 27 and28 and Appendix I (II) sections 68 and 69. Part 5 of the Constitution isheaded “ The Executive ” and Part 6 “ Tho Judicature Part 6 dealswith the appointment and dismissal of judges. Tho judges of the SupromeCourt are not removable except by tho Governor-Gonoral on an addressof the Senate and the House of Representatives, (section 52). So faras concerns tho judges of lesser rank, section 55 provided that “ theappointment, transfer, dismissal and disciplinary control of Judicialofficers is horoby vostod in tho Judicial Servieo Commission ”. ThoCommission consists of tho Chief Justice as Chairman and a judge ofthe Supreme Court and “ ono other person who shall bo or shall havobeen a judgo of the Supreme Court" (section 53(1)), and no Senator orMember of Parliament shall bo appointed. Thus there is secured afreedom from political control, and it is a punishable offonco to attemptdirectly or indirectly to jnilueneo any decision of the Commission(section 56).
The questions before their Lordships are whether the statutory pro-visions for the appointment of members of tho Panel of the BriberyTribunal otherwise than by tho Judicial Service Commission conflictwith section 55 of the Constitution, and, if so, whether those provisionsare valid.
In 1954 the Bribery Act was passed in order to meet a social need. Itgave to the Attorney General or officers authorised by him power todirect and conduct the investigation of any allegation of bribery, andcertain powers for securing information and assistance. If there wasa prima facie caso, ho was empowered to indict offenders who wore notpublic servants before tho ordinary Courts. Offenders who were publicservants might either be so indicted or be arraigned before a Board ofInquiry constituted from certain Panels to which members wore appointedby tho Governor-General on the advice of the Prime Minister. Ithad to doeiile whether tho accused was guilty and it could order thoguilty to pay the amount of tho bribe as a penalty. A finding of guiltresulted in automatic dismissal and certain disqualifications andincapacities.
The Bribery Act of 1954 was treated by the legislature as coming withinsection 29 (4) of the Constitution which deals with any amendmentsto the Constitution, and thoro was ondorsod on tho bill, when it waspresented for the Royal Assent, the necessary certificate of the Speaker.That Act also contained a section as follows :
“ 2.(1) Every provision of this Act which may ho in conflict or
inconsistent ■with anything in tho Ceylon (Constitution) Order inCouncil, 1946, shall for all purposes and in all respects be as validand effectual as though that provision were in an Act for the
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LORD PEARCE—The Bribery Commissioner v. Rctnasinghe
amendment of that Order in Council enacted by Parliament aftercompliance with the requirement imposed by the proviso ofsubsection (4) of section 29 of that Order in Council.
Whore the provisions of tliis Act are in conflict or areinconsistent with any other written law, this "Act shall prevail.”
In 1958 radical changes were made. The Bribery Amendment Aot1958 swept away the Boards of Inquiry which dealt with public servantsand created Bribery Tribunals for the trial of persons prosecuted forbribery with power to hear, try, and determine any prosecution for briberymade against any person before the Tribunal. The Bribery Commissionerwas brought into being and was empowered to prosecute persons beforethe Tribunal. All the offences of bribery specified in Part II of the Act,punishable with rigorous imprisonment for a term not exceeding seven yearsor a fine not exceeding Its. 5,000 or both became triable by the Tribunal.Whether the effect was that the offences of bribery under Part 2 of theAct “ were no longer triable by the Courts ” as was said by Sansoni J.in Senadhira v. The Bribery Commissioner1 or that, as is contended by .Mr. Lawson on behalf of the Bribery Commissioner, the Courts and theTribunal have concurrent powers, is immaterial. No doubt, even ifMr.Lawson’s contention on his behalf be correct, the practical effect wouldbe to supersede the Court’s jurisdiction in bribery cases to a large extent.
A bribery Tribunal, of which there may be any number, is composed ofthree members selected from a Panel (section 42). The Panel is composedof not more than fifteen persons who are appointed fiy the Governor -Goneral on the advice of the Minister of Justice (section 41). ThoMembers of the Panel are paid remuneration (section -15).
Mr*. Lawson on behalf of tho Bribery Commissioner argues that themembers of the Tribunal are not “ judicial officers ” and that thereforetheir appointment by the executive does not conflict with the constitu-tional provision that the appointment of judicial officers is vested inthe Judicial Service Commission. He bases the contention on two maingrounds.
First he argues that the words “ judicial officers ” only apply to judges ofthe ordinary Courts referred to in the Courts Ordinance (Cap. 6), section 3and do not apply to those excluded from the operation of the sectionby the proviso which sets out various othor or lesser tribunals, endingwith tho words “ or of any special officer or tribunal logally constitutedto try any special case or class of cases.” If that argument wero soundit might be open to the executive to appoint whom they chose to siton any number of newly created tribunals which might deal with variousaspects of the jurisdiction of the ordinary Courts and thus, by erodingthe Courts’ jurisdiction, rendor soction 55 valuoloss.
Section 55 (subsection 5) defines the expression “ judicial officer ” asmeaning the holder of any judicial office but it does not include a judgeof the Supreme Court or a commissioner of Assize. By section 3 (1) of
1 (1961) 63 N. L. R. 313 at 314.
LORD PEARCE—The Bribery Commissioner v. Ranasinghe
77
the Constitution “ judicial office ” means any paid judicial office.Membership of the Panels from which the Bribery Tribunals are consti-tuted is expressly referred to in section 41 of tho Bribery AmendmentAot 1958 as an “ office ”.“ Each member of the panel shall, unless ho
vacates office earlier … ’’(section 41(2)). Vacating “ office ” is
also roferred to in subsections 41(4) and 41(0). Both according to thoordinary moaning of words and according to tho more precise testsapplied by tho House of Lords in 0. V. It. v. Baler1 membership of thePanel is an office. Their Lordships aro unablo to draw any inferencesfrom tho Courts Act wliich would affect tho plain meaning of section 55of the Constitution.
Mr. Lawson’s second argument is that although membership of thePanel is an office, it is not a “ judicial ” office, since tho members arepaid to be on the Panel and aro not paid as members of the Tribunal.The Supreme Court rightly rejected this distinction. Clearly the membershave the paid office of being on the Panel, the functions of the officebeing the performance of tho judicial dutios of tho Bribery Tribunal asand when they aro asked to sit.
There is therefore a plain conflict between section 55 of the Constitutionand section 41 of the Bribery Amendment Act under which the Panel isappointed. What is the effect of this conflict ? The Supreme Court hasheld that it renders section 41 invalid. Mr. Lawson, however, contendson behalf of the Bribery Commissioner that, since the Act has beenpassed by both Houses and received the Royal Assent, it is a validenactment and lias the full force of law, amending the Constitution ifand in so far as necessary. If, he argues, there has been a defect inprocedure, that doos not mako tho Act invalid, since tho Coy Ion Parliamentis sovoroign and had tho power to pass it. Nor aro tho Courts ablo tolook behind tho Aot to hoo if if was validly passed.
The voting and legislative power of the Ceylon Parliament are dealtwith in sections 18 and 19 of the Constitution.
“18. Save as otherwise provided in subsection 4 of section 29 anyquestion proposed for decision by either Chamber shall be determinedby a majority of votes of the Senators or Members, as the case may be,present and voting ”….
“ 29 (1) Subject to the provisions of this Order, Parliament shall havepower to make laws for the peace order and good government of theIsland.
No such law shall—
prohibit or restrict the free exercise of any religion.”
1 [1922] 2 A. C.l at 15.
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T.ORD l’EAUCE—The Briber)/ Commissioner v. lianasinghe
There follow (6), (c) and (d) which set out further entrenched religious andracial matters, which shall not be the subject of legislation. Theyrepresent the solemn balance of rights botween tho citizons of Ceylon, thefundamental conditions on which inter se they accepted the Constitution ;and these are therefore unalterable under the Constitution.
“ (3) Any law mado in contravention of subsection (2) of this sectionshall to the extent of such contravention be void. ”
“ (4) In the exercise of its powers under this section, Parliamentmay amend or repeal any of the provisions of this Order, or of anyother Order of Hor Majosty ill Council in its application to the Island.
Provided that no Bill for the amendment or repeal of any of theprovisions of this Order shall be presented for the Royal Assent unlessit has endorsed on it a certificate under the hand of the Speaker thatthe number of votes cast in favour thereof in the House of Represen-tatives amounted to not less than two-thirds of the whole number ofMembers of tho Houso (including thoso not prosont).
Evory certificate of tho Speaker under this subsoction shall beconclusive for all purposes and shall not bo questioned in any Court oflaw.”
Tho Bribery Amendment Act 1958 contained no section similar tosection 2 of tho 1954 Act nor did tho bill boar a certificate of tho Speaker.There is nothing to show that it was passed by the necessary two-thirdsmajority. If the presence of the certificate is conclusive in favour ofsuch a majority there is force in the argument that its absence is conclusiveagainst such a majority. Moreover where an Act involves a conflictwith the constitution the certificate is a necessary part of the Act-makingprocess and its existence must be made apparent.
Tho fact that the 1958 bill did not have a certificate and was not passedby the necessary majority was not really disputed in the Supreme Courtor before their Lordships’ Board, but it has been argued that the Court,when faced with an official copy of an Act of Parliament, cannot enquireinto any procedural matter and cannot now properly consider whethera certificate was endorsed on the bill. That argument seems to theirLordships unsubstantial, and it was rightly rejected by the SupremeCourt. Once it is shown that an Act conflicts with a provision in theConstitution the certificate is an essential part of the legislative process.The Court has a duty to see that the Constitution is not infringed andto preserve it inviolate. Unless therefore there is some very cogentreason for doing so, tho Court must not doolino to open its eyes to thotruth. Thoir Lordships wore informed by Counsel that there wore twoduplicate original bills and that after the Royal Assent was added oneoriginal was filed in the Registry where it was available to the Court.It was therefore easy for the .Court, without seeking to invade themysteries of Parliamentary practice, to ascertain that tho bill was notendorsed with the Speaker’s certificate.
LORD PEARCE—The Bribery Commissioner v. Banasinghe
79
The English authorities have taken a narrow view of the Court’s powerto look behind an authentic copy of tho Act. But in the constitutionof the United Kingdom there is no governing instrument which proscribesthe law-making powers and the forms which are essential to thosepowers. There was therefore never such a necessity as arises in thepresent case for the court to take any close cognisance of the processof law-making. In Edinburgh Railway Co. v. Wauchopex, however,Lord Campbell said “ All that a Court of justice can do is to look tothe Parliamentary roll ”. There seems no reason to doubt that in earlytimes, if Buch a point could have arison as arises in tho prosont case theCourt would have taken tho sensible step of inspecting the original.
In the South African case of Harris v. Minister of the Interior a, wherea similar point arose, it appoars that tho Court itself looked at the bill.“ The original ” said Centlivres C.J. “ which was signod by tho Governor-General and filed with the Registrar of this Court bears tho followingendorsement of the Speaker : * certified correct as passed by the jointsitting of both Houses of Parliament ’.. Moreover the point
on which Fernando J. relied in the Supreme Court seems to their Lord-ships unanswerable. When the constitution lays down that the Speaker’scertificate shall be conclusive for all purposes and shall not be questionedin any court of law, it is clearly intending that Courts of law shall lookto the certificate but shall look no further. Tho Courts thoroforo havea duty to look for the certificate in order to ascertain whether theconstitution has been validly amended. Where the certificate is notapparent, there is lacking an essential part of tho process nccossary foramendment.
The argument that by virtue of certain statutory provisions thesubsequent reprint of an Act can validate an invalid Act cannot besound. If Parliament could not make a bill valid by purporting toenact it, it certainly could not do so by reprinting it, however augustthe blessing that it gives to tho reprint.
Mr. Lawson further contended that since the original Bribery Act of1954 had on it a certificate, any amendment of that Act was automaticallyfranked and did not need a certificate. The effect of tho argumentwould be that serious inroads into the constitution could be madewithout the necessary majority provided that they were framed asamendments to some quite innocuous Act which had borno a certificate.No authority was cited on this point. Their Lordships feel no doubtthat every amendment of the constitution, in whatever form it may bepresented, needs a certificate under section 29 (4).
There remains the point which is the real substance of this appeal.When a Sovereign Parliament has purported to enact a bill and it hasreceived the Royal Assent, is it a valid Act in the course of whosepassing there was procedural defect, or is it an invalid Act whichParliament had no powor to pass in that manner ?
The strongest argument in favour of the appellant’s contention is thefact that section 29(3) expressly makes void any Act passed in respect
1 [1841] 8 Clark and Finnclly 710 at 72,5.s [1952} 2 S. A. L. E. 428 at 469.
ou
LiKjju .t'ju.fiLtvtmi—-L ne xirwery oommxssxoner v. jxanasingne
of the matters entrenched in and prohibited by section 29 (2), whoroassection 29 (4) makes no such provision, but merely couches the prohibition,in procedural terms.
The appellant’s argument placed much reliance upon the opinion;of this Board in Me Cawley v. The King 1. Just as in that case the,legislature of the then Colony of Queensland was held to lxavo power bya mere majority vote to pass an Act that was inconsistent with the;provisions of the existing Constitution of the Colony as to the tenure'of judicial office, so, it was said, the legislature of Ceylon had no less apower to depart from the requirements of a section such as section 55of the Order in Coxmcil, notwithstanding the wording of section 18 and.section 29 (4). Their Lordships are satisfied that the attempted analogybetween the two o:isos is delusive and (hat jl/V. ( 'aioh'.y'.'t ease,, so lar asit is material, is in fact opposed to the appellant's reasoning, in viewof the importance of the matter it is desirable to deal with this argument-in some detail.
In 1859 Queensland had been granted a Constitution in the terms of an.Order in Council mado on 6th Juno of that year under powers derived,by Her Majesty from the Imperial Statute, 18 & 19 Vic. C.54. Tha.Order in Council had set up a legislature for the territory, consisting of,the Queen, a Legislative Council and a Legislative Assembly, and the-law-making power was vested in Her Majesty acting with the adviceand consent of the Council and Assembly. Any laws could be made,for the “peace, welfare and good government of the Colony ”, the.phrase habitually employed to denote the plenitude of sovereign legislativepower, even though that power bo confined to certain subjects or withincertain reservations. The Constitution thus established placed norestrictions upon the manner in which or tho extent to whicli tho law-making power could bo exercisod, either generally or for particularpurposes, oxcopt for the provisions then customary as to reservationand disallowance of bills and a special provision as to tho reservation,of any bill which proposed the introduction of the elective principleinto the make up of the Legislative Coxmcil. Subject to this the legis-lature was expressly given full power and authority to alter or repeaLthe provisions of the Order in Council “ in the same maimer as anyother laws for the good government of the Colony
The legislature exercised this power in 1867 and passed what wascalled the Constitution Act of that year. By section 2 of the Act thelegislative body, again the Queen acting with the advice and consent-of tho Council and Assembly, was given or doclarod to have powor tomake laws for the peace, welfare and good government of the Colonyin all cases whatsoever. Tho only express restriction on this compre-hensive power was contained in a later section, section 9, which requireda two-thirds majority of the Council and of the Assembly as a conditionprecedent to the validity of legislation altering the constitution ofthe Council. As to this Lord Birkenhead L.C., delivering the Board’sopinion, remarked “ We observe, therefore, the Legislature in this
1 [1920] A. O. 691.
LORD PEARCE—The Bribery Commissioner v. Ranoainghe
81
Isolated instance carefully solecting ono special and individual case inwhich limitations are- imposed upon the power of the Parliament ofQueensland to express and carry out its purpose in the ordinary way by-a bare majority ” ([1920] A.C. at 712). This observation was coupledwith the summary statement at page 714, “ The Legislature of Queens-land is the master of its own household, except so far as its powers havein special cases been restricted. No such restriction has boon established-and none in fact exists, in such a caso as is raised in the issues now under-appeal
These passages show clearly that the Board in Jlfc Cawley's case took•the view, which commends itself to the Board in the present case, that a-legislature has no power to ignore the conditions of law-making thatare imposed by the instrument which itself regulates its power to make-law. This restriction exists independently of the question whether theLegislature is sovereign, as is the Legislature of Ceylon, or whether the•Constitution is “uncontrolled”, as the Board held the Constitution of•Queensland to be. Such a Constitution oan indeed bo altered or amendedby tho legislature, if the regulating instrument ho provides and if tlu*terms of those provisions are compliod with : and tho alteration or•amendment may include the change or abolition of those very provisions.But the proposition which is not acceptable is that a legislature, once■established, has some inherent power derived from the mere fact of its•establishment to make a valid law by the resolution of a bare majoritywhich its own constituent instrument has said shall not be a valid law•unless made by a different type of majority or by a different legislative.process. And this is the proposition which is in reality involved in the-argument.
It is possible now to state summarily what is the essential differencebotwoon tho McCawley caso and this caso. Thoro tho Legislature,having full power to make laws by a majority, except upon one subjectthat was not in question, passod a law which conflicted with one of the-existing terms of its Constitution Act. It was held that this was valid1 ..legislation, since it must be treated as pro tanto an alteration of the Cons-| titution, which was neither fundamental in the sense of being beyond-change nor so constructed as to require any special legislative processto pass upon the topic dealt with. In the present case, on the otherIhand, the Legislature has purported to pass a law which, being in conflictwith section 55 of the Order in Council, must be treatod, if it is to bevalid, as an implied alteration of the constitutional provisions aboutthe appointment of judicial officers. Since such alterations, even if• express, can only ho mado by laws which comply with tho speciallegislative procedure laid down in suction 29 (4), tlio Ceylon Legislature. has not got the general powor to legislate so as to amend its Constitutionby ordinary majority resolutions, such as the Queensland Legislaturewas.found to have under section 2 of its Constitution Act, but is ratherin the position, for effecting such amendments, that that Legislature washeld to be in by virtue of its section 9, namely compelled to operate a.special procedure in order to achieve the desired result.
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LORD PEARCE—The Bribery Commissioner v. Ranasinghe
The case of The Attorney-General for New South Wales v. Trethowan 1also needs to be considered. The Constitution Act 1902 of New SouthWales was amended in 1929 by adding section 7A to the effect that nobill for abolishing the Legislative Council (or repealing section 7A)should be presented for the Royal Assent until it had been approved bya mojority of electors voting on a submission to them made in accordancewith the section. Since both the Acts of 1902 and 1909 were acts ofthe local legislature they were confined, so far as legislative power wasconcerned, by the Colonial Laws Validity Act 1865. Without complyingwith the requirements of section 7 A both Houses passed Bills respectivelyrepealing section 7A and abolishing the Legislative Council. The appealwas limited to the questions (see 52S) “ whether the .Parliament ofNew South Wales has power to abolish the Legislative Council of thestate or to alter its constitution or powers or to repeal section 7A ofthe Constitution Act 1902 except in the manner provided by the saidsection 7A ”. In holding that Bills could not lawfully be presenteduntil the requirements of section 7A had been complied with, the Board,relied on section 5 of the Colonial Laws Validity Act 1865. That sectionprovided that “ every representative legislature shall in respect of thecolony under its jurisdiction have .. full power to make laws
respecting the constitution powers and procedure of such legislature;provided that such laws shall have been passed in such manner and form,as may from timo to time bo required by any Act of Parliament, letterspatent, Orders in Council, or Colonial law for the time being in forcein the Colony ”. The effect of section 5 of the Colonial Laws ValidityAct, which is framed in a manner somewhat similar to section 29 (4) ofthe Ceylon Constitution was that where a legislative power is givensubject to certain manner and form, that power does not exist unlessand until the manner and form is complied with. Lord Sankey said(at p. 541) “ A Bill within the scope of subsection 6 of section 7A whichreceived the Royal Assent without having boon approved by tho eloctorsin accordance with that section would not be a valid Act of thelegislature. It would be ultra vires section 5 of the Act of 1865 ”.
The careful judgment of Contlivres C.J., with which tho four othermembers of the Appellate Division of 8oul.li Africa concurred, in thecase of Harris v. Minister of the Interior (above) expresses tho samepoint of view.
The legislative power of the Ceylon Parliament is derived from section 18and section 29 of its Constitution. Section 18 expressly says “save asotherwise ordered in subsection (4) of section 29 ”. Section 29 (1) isexpressed to be “ subject to the provisions of this Order ”. And anypower under section 29 (4) is expressly subject to its proviso. Thereforein tho case of amendment and ropeal of the Constitution tho Speaker'scertificate is a necessary part of the legislative process and any billwhich does not comply with the condition precedent of the proviso, iaand remains, even though it receives the Royal Assent, invalid and.ultra vires.
1'[1932] A. C. 526.
Weragoda v. Weragoda
83
No question of sovereignty arises. A Parliament does not cease to besovereign whenever its component members fail to produce amongthemselves a requisite majority o.g. when in tho case of ordinary legis-lation the voting is evenly divided or when in the case of legislation toamend the constitution there is only a bare majority if the constitutionrequires something more. The minority aro entitled under tho Consti-tution of Ceylon to have no amendment of it winch is not passed by atwo-thirds majority. The limitation thus imposed on some lessermajority of members^dqcs mot limit tho sovereign powers of Parliamentitself which can always, whenever it choosos, pass tho amendment withthe requisite majority.
The case of Thambiayah v. Kulasingham1 is authority for the viewthat where invalid parts of the statute which are ultra vires canbe severed from the rest which is intra vires it is they alone should beheld invalid.
Their Lordships therefore are in accord with the view so clearlyexpressed by the Supreme Court “ that the orders made against therespondent aro null and inoporativo on tho ground that tho personscomposing the Bribery Tribunal which tried him were not lawfullyappointed to tho Tribunal They will accordingly humbly adviseHor Majesty to dismiss this appeal. In accordance with tho agreementbetween the partios the appellant will pay tho costs of tho respondent.
Appeal dismissed.