THE QUEEN v, M. G. J. MICHAEL DE SILVA et al

009-NLR-NLR-V-62-THE-QUEEN-v-M.-G.-J.-MICHAEL-DE-SILVA-et-al.pdf


1960
Present: Weerasooriya, J., and Sinnetamby, J.
THE QUEEN v. M. G. J. MICHAEL DE LIVERA et al.
S. G. 31A-B—D. O. (Criminal.) Colombo, N 1039
Bribery Act, No. 11 of 1054, as amended by Act No. 17 of 1050—Bribery of a Memberof Parliament—Ingredients of offence—“ In his capacity as such member ”—Sections 14 (a), 11 (/>), 15, 22, 25 (2), 01.
A person cannot be convicted under section 14 (a) of the J3rilx>ry Act ofoffering a gratification to a member of the House of Representatives unlessthe gratification was offered to tho lattri for his doing ah act in his “ capacity ”os a member of Parliament. A member of the House of Representativescannot be regarded as acting “ in his capacity as such member ” within thomeaning of the section except in the exercise of the functions of his office assuch member.; section 14 (a) is confinod to those cases in which a memberdoes an act which he is able to do only by virtue of the legal powers vested inhim as a member and which set he would not be able to perform but for thefact that he is a member.
.^^.PPEAL from a judgment of the District Court, Colombo. The factsappear from the judgment of Weerasooriya, J.
V. Perera, Q.G., with S. Nadesan, Q.G., E. J. Cooray, J. A. L.Cooray and N. Satyendra, for the 1st Accused-Appellant.
Colvin R. de Silva, with M. M. ICumarakulasingham, for the 2ndAccused-Appellant.
St. C. ft. Jansze, Q.C., Attorney-General, with L. j3. T. Prcmaratne,Crown Counsel, and V. S. A. Pullenayegum, Crown Counsel, for theCrown-Respondent.
C%ir. adv. vult.
April 4, 1960. Weerasooriya, J.—
The two accused-appellants were tried before the District Court ofColombo on an indictment framed under the special provisions of theBribery Act, No. 11 of 1954- (hereinafter referred to as “ the Act ”).The 1st accused-ajjpellatit was charged on counts 1 and 3 with having,on the 19th and 22nd December, 1958, respectively, committed an offencepunishable under section 14 (a) of the Act in that he offered a gratificationof Rs. 5,000 to one Welikala James Charles Munasinghe, a member of theHouse of Representatives, as an inducement or reward for his doing anact in his capacity as such member, to wit, addressing a letter to theMinister of Lands and Land Development requesting him to abandonthe proposal for the acquisition of Vincent Estate, Chilaw. The 2nd2—lxii
2—1—J. X. R 106G1—1,995 (6/60)
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WEERASOORrXYA, «T.—The Queen v. Michael de Isivera.
accused-appellant was charged on count® 2 and 4 with abetment of thoseoffences. In addition, the 1st accused was charged on count 5, and the2nd accused on count 6, with having, on the 22nd December, 19.58,abetted the acceptance by Welikala James Charles Munasinghe of agratification of Bs. 5,000 as an inducement or reward for his doing theaforesaid act, and with having thereby committed an offence punishableunder section 14 (b) read with section 25 (2) of the Act. They wereconvicted on all counts and sentenced to terms of imprisonment, and havefiled these appeals from their convictions and sentences.
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 owned by the 1staccused. On the 28th October, 1958, Mr. Munasinghe addressed to theMinister of Lands and Land Development the letter PI strongly recom-mending as a matter of urgency the acquisition of Vincent Estate foralienation to the inhabitants of certain villages in the Chilaw Districtwho had been displaced from their homes as a result of floods. PI bearsthe printed heading “ House of Representatives ” and is signed byMr. Munasinghe as “ M. P. Chilaw ”. At the time the Minister of Landsand Land Development, Mr. C. P. de Silva, was the authority empoweredunder the Land Acquisition Act, Ho. 9 of 1950, to initiate acquisitionproceedings and to give the necessary directions in that behalf. Thequestion whether Vincent Estate should be acquired or not was, there-fore, primarily a matter for him.
On the representations contained in Pi the Minister decided thatVincent Estate should be acquired, and he gave the following directionsto the Land Commissioner : “ For early action. M. P., Chilaw asks thisland for alienation in £-acre lots for people who got ruined by the floodsand those people of Chilaw town who have employment but no houses tolive in. Please take acquisition proceedings immediately ”. Soonafterwards, the Government Agent, Puttalam, called for a report fromthe Divisional Revenue Officer regarding the proposed acquisition.Before that report was received, the 1st accused who, presumably, hadlearnt of the steps that were being taken, saw the Government Agent.The object of the visit was clearly to dissuade the authorities from pro-ceeding with the acquisition. The 1st accused told the GovernmentAgent that the estate, in part, was itself liable to floods and therefore notsuitable for a housing scheme. The Government Agent referred the1st accused to Mr. Munasinghe as the member of Parliament forChilaw and the person who put forward the proposal to acquire the estate,and he also informed the 1st accused that the final authority *on the ques-tion whether it should be acquired or not was the Minister of Lands andLand Development.
It is the evidence of Mr. Munasinghe that prior to the 19th December,1958, the 1st accused was a stranger to him, but he had known the 2ndaccused well from about 1947, when Mr. Munasinghe became the Chair-man of the Madampe Town Council, in which office he continued till1956 except for a short break of about three months. During that.
WEE ft A>5 OORl YA, J.—7 V<c Q»b«i ■>•. j Michael tic Lircrn27
period the 2nd accused was the Secretary of the Madampe Town Counciland closely associated with Mr. Munasinghe, whom he often visited in hisbungalow. At the time of the alleged offences, however, the 2nd accusedwas the Secretary of the Puttalam Urban Council, while Mr. Munasinghewas residing in Kelaniya. It may be inferred that the 1st accused knewthe 2nd accused and also the latter’s previous association with Mi*. Muna-singhe. According to Mr. Munasinghe, the 2nd accused came to hishouse in ICelaniya on the morning of the 19th December, 1958. The 2ndaccused said that he came at the instance of the 1st accused, who was“ pestering ” him for an introduction to Mi*. Munasinghe, that the 1staccused was anxious that his estate should not be acquired and was pre-pared to give Mr. Munasinghe or his party or any. person nominated byMr. Munasinghe a present of money if the acquisition was stopped.Mr. Munasinghe stated that he requested the 2nd accused to come withthe 1st accused at 7.30 p.m. on the same day and the 2nd accused wentaway promising to do so. In the meantime Mr. Munasinghe got in touchwith the Police and it was arranged for some Police officers to be presentin concealment at the house of Mr. Munasinghe within hearing distanceof any conversation that would take place between him and the accusedwhen they met in the evening. Mr. Munasinghe has stated in evidencethat at that meeting the 1st accused offered him Rs. 5,000 in cash to stopthe acquisition, that he undertook to give the 1st accused on the 22ndDecember, 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 and LandDevelopment withdrawing his earlier application for the acquisition ofthe estate, in return for which the 1st accused was to hand him the sumof Rs. 5,000.
On the 22nd December the Police were again present, unknown to theaccused, when the latter came to see Mr. Munasinghe as arranged. Onthat occasion Mr. Munasinghe gave the 1st accused the letter P3 ad-dressed 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 isW'ritten on notepaper bearing the printed heading “ Chief GovernmentWhip ” and is signed by Mr. Munasinghe as “ M. P., ChilaAv ”. The 1staccused took the letter and handed to Mr. Munasinghe a wrapped parcel,PC, containing the Rs. 5,000. As for the 2nd accused, apart from beingpresent, he neither did nor said anything. When the accused were aboutto depart the Police officers came forward, disclosed their identity andtook into custody, among other things, the letter P3 and the parcel PG.
The facts as set out above have been accepted by the trial Judge andwere not challenged in appeal. It is, therefore, with reference to thesefacts that the questions of law which were argued before us need beconsidered. But conceding these facts, learned counsel for both theaccused contended that the Crown has failed to x>rove the charges againsttheir clients. On behalf of the 2nd accused it was contended, further,that on the same facts no offence of abetment as alleged against him hasbeen made o t even if the 1st accused be held to have committed theoffences with which he is charged.
28
WEERASOORJYA, J.—The Queen v. Michael de Itivera
Section 14 of the Act is 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 doingor forbearing to do any act in his judicial capacity or in hiscapacity 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 grati-fication as an inducement or a reward for his doing or for-bearing to do any act in his judicial capacity or in bis capacityas such member,
shall be guilty of an offence punishable with rigorous imprisonmentfor a term not exceeding seven years or a fine not exceeding fivethousand rupees or both :
Provided, however, that it shall not be an offence tinder the pre-ceding provisions of this section for any trade union or otherorganization to offer to a member of either the Senate or the Houseof Representatives, or for any member to accept from any tradeunion or other organization, any allowance or other payment solelyfor the purposes of his maintenance ”.
The proviso, it may be stated, was not a part of the section as orginallyenacted, but was subsequently added by the Bribery (Amendment) Act,No. 17 of 1956.
Section 15 of the Act reads :
“ A member of either the Senate or the House of Representativeswho solioits or accepts any gratification as an inducement or a re-ward for—
(а)his interviewing a public servant on behalf of any person, or
(б)his appearing on behalf of any person before a public servant
exercising judicial or quasi-judicial functions,
shall be guilty of an offence punishable with rigorous imprisonmentfor a term not exceeding seven years or a fine not exceeding fivethousand rupees or both :
Provided, however, that it shall not be an offence under the pre-ceding provisions of this section for a member of either the Senate orthe House of Representatives to appear as ah advocate or a proctorbefore a Court or before a statutory tribunal of which a public servantis not a member
It is to be observed, by way of contrast with section 14, that undersection 15 a member of the Senate or the House of Representatives whosolicits or accepts a gratification as an inducement or a reward for the
WEBRASOORIYA, J.—The Queen v. Michael de Zdvera
29
doing of any act specified therein commits an offence irrespective ofwhether in the doing of it the offender acts in his capcity as such memberor not.
Since the Rs. 5,000 offered to Mr. Munasinghe is undeniably a gratifi-cation within the definition of that term in section 91 of the Act, thesubstantial issue in this case is whether the gratification was offered tohim for his doing an act in his “ capacity ” as a member of the Rouse ofRepresentatives within the meaning of section 14. The District Judge,in dealing with the matter with particular reference to the letters PI andP3, stated as follows :
“ …. the question to be decided in -this case is whether
Mr. J. C. W. Munasinghe is legally competent or legally ‘ incapacitated *from doing the act which he did when as a member of Parliament hewrote the letters PI and P3 to the Hon. Minister of Lands.
The accused would certainly be entitled to an acquittal at the hands ofthis Court if Mr. Munasinghe as a member of Parliament usurped tohimself the executive powers of the Minister of Lands and chose towrite to the Land Commissioner directing him to take steps to acquirethe 1st accused’s land or if he chose to write to the Land Commis-sioner directing him not to take steps to acquire this land. In such anevent Mr. Munasinghe the member of Parliament would certainly nothave the legal capacity to act in that manner. The position here isentirety different. Mr. Munasinghe M. P. has not usurped the functionsof the executive. All that he has done is to suggest to the executiveauthority as M. P. for Chilaw that a certain land in his electoral area beacquired to give relief to flood victims also in bis electoral area.
This is the sort of request even a private citizen can make to an exe-cutive authority …. If a private citizen can do exactly whatMr. Munasinghe, M. P., has done, can it be said that Mr. Munasinghehas no legal capacity to do this act as member of Parliament for the area ?It is true that Mr. Munasinghe, M. P., can make the same suggestionthat has been made in the letters PI and P3 to the Minister in Parlia-ment and this is a right which a private citizen who is not an M. P.does not have but merely because an M. P. has the right to make thissuggestion to a Minister in Parliament is he thereby legally * incapa-citated ’ as M. P. from making the same suggestion to the same Ministeroutside the House of Representatives ?In my opinion
Mr. Munasinghe was not legally incompetent or legally ' incapacitated’as Member of Parliament from writing the documents PI and P3 tothe Hon. Minister of Lands and Land Development. In the result Ihave no alternative but to find the accused guilty of the charges laidagainst them ”.
From the foregoing passage in his judgment it would seem that thelearned Judge took the view that Mr. Munasinghe’s “ capacity ” to writethe letters Pi and P3 as a member of Parliament stood established fromthe fact that he was not prevented by any legal incapacity, cither as amember of Parliament or as a private citizen, from communicating withthe Minister in terms of those letters. With respect, I do not think that
2*—J. N. U 10661 (6 CO)
go
WEE RASOOEIYA, J.—The Queen o. Michael de Liver a
the test applied by him is correct. The Attorney-General, while main-taining that the convictions entered against the accused are right, statedthat he was unable to support the reasons given by the Judge forholding that Pi and P3 were written by Mr. Munasinghc in his “ capacity”as a member of Parliament.
It is necessary, therefore, to consider whether there is any other basison which it could be said that the gratification oftered to Mr. Munasinghewas for his doing an act in his “ capacity ” as a member of the Houseof Representatives.
As regards the expression “ in his judicial capacity ” in section 14, theAttorney General as well as counsel for the accused were agreed thatwhile a judge may have administrative or ministerial functions to performin addition to his judicial or quasi-judicial functions, he can be said toact in a judicial capacity only in the performance of his judicial or quasi-judicial functions. The immunity attaching to a judge in respect of anact done in his judicial capacity does not extend to acts which are of apurely administrative or ministerial character—McKerron on the Law ofDelict (4th edition) 114.
The Attorney-General contended, however, that the expression “ inhis judicial capacity ” in section 14 is not the equivalent of “ in his capa-city as a judge ”, which latter expression (according to him) is of widerimport, and would oven include acts done by a judge in a purely adminis-trative or ministerial character. By parity of reasoning he contended,further, that the expression “ in his capacity as such member ” in section14 was advisedly used by the draftsman so as to bring within its ambitthe acts of a member which do not strictly fall within the scope of his legalfunctions as a member of the Senate or the House of Representatives.
It is common ground that when a member of the Senate or the Houseof Representatives does an act which is exclusively within his powerto do as such member, he does it in his “ capacity ” as such member.The Attorney-General conceded, how ever, that the act of Mr. Munasinghein writing Pi or P3 dLoes not fall into the category of acts whichwere exclusively within his power to do as a member of the House ofRepresentatives. But according to him, there are other acts, fallingoutside that category, which a member of the Senate or the House ofRepresentatives may do in his “ capacity ” as such member even thoughthe same acts may be done by him in some other “ capacity ” as well.He was constrained to admit that in respect of such an equivocal act itmay be difficult, and sometimes impossible, to establish the particular“ capacity ” in which it was done.
Assuming (without deciding) that the Attorney-General is right in hiscontentions, I think it will be convenient to consider at this stage whatevidence is relied on by the prosecution to establish that the gratificationoffered to Mr. Munasinghe on the 19th and 22nd December, 1958, was forhis doing an act in his “capacity ” as a member of the House of Represen-tatives. I shall first discuss the evidence regarding the gratificationoffered on the 22nd December, 1958. Mr. Munasinghe stated (somewhatbelatedly) on being recalled by the prosecution after his evidence as a
WEERASOOltlYA, J.—The Queen v, Michael de IAvc-ra
31
witness had been concluded, that he wrote Pi and P3 in his “ capacity ”as a member of Parliament. There is also the circumstance that insigning PI and P3 he described himself as “ M. P., Chilaw In regardto PI he had stated earlier that it was written as a result of a resolutionpassed by the Sangathatana Rural Development Society at a meetingat which he was present by invitation. He admitted that even before hebecame a member of Parliament he, as a politician and a “ public man”,and also as a prospective candidate for parliamentary office, used to makerepresentations to the authorities on various matters. I do not thinkthat on his election as member for Chilaw he could be regarded as havingceased to be a politician and a “ public man On the contrary, hischaracter as a politician and a “ public man ” may well have becomemore pronounced after his election. If PI could-have been w ritten byhim in his “ capacity ” as a member of the House of Representalives (inthe sense contended for by the A ttor ney – Gen eval) the prosecution wouldhave to concede that it could also have been written by him in his“ capacity ” as a politician or a ct public man ”, or, as the trial Judgestated, even as a private citizen. It follows that P3 could also havebeen written by Mr. Munasingbe in one or other of these several“ capacities ”. The burden on the prosecution is to establish that PIand P3 were written by Mr. Munasingbe in his “capacity ” as a member of-the House of Representatives and not in any other “ capacity ”. Itseems to me that in order to establish this the prosecution has to relyentirely on the evidence of Mr. Munasingbe. The Attorney-Generalsubmitted that in considering the question of the “ capacity ” in whichMr. Munasingbe wrote Pi or P3 the evidence of Mr. Munasinghc on thepoint should, be accepted as he is in- the best position to say in what“ capacity ” he acted or purported to act.
The prosecution contends that the vidence of Mr. Munasingbe issupported by the eircumstanco that in signing Pi and P3 he describedhimself as “ M. P., Chilaw There might have been force in this con-tention if the evidence showed that Mr. Munasinghe adopted such adescription only w hen he purported to act in his “capacity ” as a member-of Parliament. The contrary is, however, indicated by the fact that theletter P4-, w'hich is addressed to the 1st accused and boars the same dateas P3, is also signed by Mr. Munasinghe as “ M. P., Chilaw ”. Even onthe construction which the learned Attorney-General sought to put on the■expression “ in liis capacity as such member” in. section 14- of the Act,I do not think it could seriously be contended that P4 was written byMr. Munasinghe in that “ capacity ”. There seems to be no othercircumstance which supports Mr. Munasinghe when he says that hewrote Pi and P3 in his “ capacity ” as a member of Parliament.
Cn being cross-examined as to why he claims to have written Pi andP3 in his “ capacity ” as a member of Parliament, Mr. Munasinghestated as follows r—
“ I told the Court earlier that I wrote the letter PI in my capacity
as a member of Parliament. I took the view that I was entitled
to write it in my capacity as a member of Parliament .
32
WBERASOORIYA, J.— The Queen v. Michael de Livera
I thought that in my capacity as a member of Parliament there wasa duty or function entrusted to me to write to the Minister in respectof that matter. I think what I thought was correct. I have openeda number of buildings. The latest building I opened was a schoolbuilding. That was the Thambagalla Government School. I wasinvited to open that building because T was a member of Parliament.
I opened it in my capacity as a member of Parliament .
Q : In your view what are the other things you have opened in yourcapacity as a member of Parliament ?
A : Rural Development Society textile centres and a number ofthings like that.
Q : So far as you are concerned you consider that opening of schoolbuildings and opening of rural development society buildings, etc.,,you have to do in your capacity as a member of Parliament ?
A : Yes. ”
He .also added that he had inspected certain Good-affected privatebuildings and even attended “ some social functions ” in his capacityas a member of Parliament.
In regard to his evidence that he thought that in his capacity as amember of Parliament there was a duty or function entrusted to him towrite to the Minister in terms of PI, he did not indicate whence such aduty or function was derived. The fact that he thought that there wassuch a duty or function would not, of course, establish the existence ofsuch a duty or function in a member of the House of Representatives.There is not a scintilla of evidence that when Pi or P3 was written theacquisition of Vincent Estate or any other land for the relief of floodvictims was the subject of any action taken or contemplated to be tokenin the House of Representatives.
Even more unacceptable are Mi1. Munasinghe’s views that in attendingsocial functions, opening school buildings, textile and rural developmentsociety centres, which he is invited to do because he is a member of Parlia-ment, he thereby acts in his capacity as such member. No attemptwas made by the learned Attorney-General to justify these views.While the good faith of Mr. Munasinghe in holding these views may beconceded, in my opinion they are entirely misconceived, and I do not seehow they can avail the prosecution in establishing that he acted in hia“ capacity ” as a member of the House of Representatives when he wrotePI or P3. Whether he acted in that “ capacity ” or not is essentiallya matter for the Court to decide.
The prosecution is in an even less favourable position in regard to thegratification offered on the 19th December, 1958, because on that datethe letter P3 had not yet been written. The only arrangement arrivedat on that occasion for any action to be taken by Mr! Munasinghe in orderthat the acquisition of Vincent Estate should not be proceeded with wasto address a letter to the Minister withdrawing his earlier applicationfor its acquisition, stating as the ground for the withdrawal that a portion^
WEE li/VSOOJiIYA, J.—2'he Queen w. Michael tie IAvertt
33
of the estate gets inundated periodically. It was not envisaged by theparties to the arrangement that the letter should bo written inMr. Mu n a s mg h l-’s “ capacity ” as a member of Parliament or in any other“ capacity There was no discussion at all on the subject for the simplereason, I think, that neither Mr. Munosinghe nor the 1st accused gave hismind to it. As far as the 1st accused was concerned, it was quiteimmaterial to him in what “ capacity ” Mr. Munosinghe wrote thatletter.
The question whether the gratification offered to Mr. Munasingheon the 19th December, 1958, was for his doing an act in bis “ capacity ”as a member of the House of Representatives has to be decided in thelight of the circumstances existing as at that date, and without referenceto the subsequent letter, P3, or the evidence of Mr. Munasinghe as to the“ capacity ” in which he wrote it.
It seems to me. therefore, that even if the expression “ in his capacityas such member ” in section 14 of the Act is given the wide constructioncontended for by the Attorney-General, the prosecution has failed toestablish that the gratification offered to Mr. Munasinghe, whether on the19tli or the 22nd December, 1958, was for his doing an act in his■** capacity ” as a member of the House of Representatives.
I shall noAV deal bi-iefly with the submissions of learned counsel for theaccused as i-egariLs the proper construction of the same expression.According to Mr. H. V. Porera—and his submissions were adopted byDr. Calvin R. de Silva—that expression bears a meaning corresponding tothe expression ;c in his judicial capacity ” in section 14 of the Act. There-fore, he submitted, a member of the Senate or the House of Representa-tives acts in his “ capacity ” as such member only in the exercise of thefunctions of his office as such member, and this he does when he partici-pates in proceedings in the Senate or the House of Representatives, asthe case may be, and not otherwise.
In this connection Mr. Perera referred to certain proceedings in theEnglish House of Commons as showing how the expressions “capacity”,when used in relation to a member of Parliament, and “ proceedingsin Parliament ” are understood in English Piirli ament ary practice. Noobjection was taken by tbo learned Attorney-General to these citations.One of the citations was from the debate which took place on the 30thOctober, 1947 (Hansard, House of Commons Debates, Eifth Series,Vol. 443, Columns 1094 et seq.) wlien a report of the Committee of Privi-leges in regard to an alleged breach of privilege was discussed. TheCommittee had taken the view in their report that the attendance ofmembers of the-House of Commons at a private party meeting within theprecincts of the Palace of Westminster during the current parliamentarysessions in order to discuss matters connected with the proceedings ofParliament was attendance in their capacity as members of Parliament.But this view was not accepted by the Government, and in moving aGovernment motion arising on the report, Mr. Herbert Morrison, who wasthen Leader of the House, stated as follows :
34
WEERASOORIYA, J.—The Queen v. Michael de Isivera
“ With great respect to the Committee, this seems to be going tonfar. Their opinion is based on the conclusion that Members attendingsucb meetings attend in their capacity as Members of Parliament.According to the precedents, however, Members are only regarded asacting * in the capacity of Members’-when they take part, in Parliamen-tary proceedings. Indeed, even in transactions with constituentsMembers have never been regarded, for purposes of privilege, asacting in their capacity as Members
But he did not proceed to state what these precedents were, nor werewe referred to any in the course of the argument in appeal. It wouldappear, however, that the view expressed by the Committee of Privilegeson that occasion did not find favour with the majority of the members ofthe House of Commons.
The notion of including within the expression “ proceedings of Parlia-ment ” a private party meeting appears to have been derived from anearlier report (in 1939) of the Select Committee on the Official SecretsActs arising out of a complaint by a member relating to the privilege offreedom of speech. What was assimilated in that report to proceedingsin Parliament was the sending to a Minister by a member of Parliamentof the draft of a question which the member proposed to put to theMinister in Parliament, or the showing of such a draft to another memberwith a view to obtaining advice as to the propriety of putting the questionor the manner in which it should be framed.
The more recent trend has been, however, for the House of Commonsnot to countenance attempts at any extension of the expression “ pro-ceedings of Parliament ”. This would appear from the proceedings ofthe 30th October, 1947, to which I have already referred, and also fromthe proceedings in the House on the 8th July, 1958 (Hansard, House ofCommons Debates, Fifth Series, Vol. 591, Columns 208 et seq.) relatingto the report of the Committee of Privileges on an alleged breach ofprivilege the facts of which are briefly as follows : On the 8th February,1957, a member of Parliament made representations to the Minister ofPower in a letter regarding the disposal of scrap by the London ElectricityBoard. The letter was referred to the Chairman of the Board by directionof the Minister. In that letter various allegations of improper conduct hadbeen made against the Board. The Chairman of the Board thereuponwrote to the member concerned stating that the aspersions containedin the member’s letter were completely unjustified and requesting theirunqualified withdrawal. On the member refusing to do this the Board’ssolicitors wrote to the member that proceedings would be taken againsthim for libel if he did not tender a suitable apology. The member thenbrought the matter up in the House of Commons, and it was referred tothe Committee of Privileges. It is necessary to state only twx> of the con-clusions-of the Committee in their report, which were (a) that in writingthe letter dated the 8th February, 1957, the member was engaged in a“ proceeding in Parliament ” within the meaning of the Bill of Bights,1688, and
WEERASOOK.IYA, J.—The Queen v. Michael de Liner a
35
(b) that the London TClectricity Board and their solicitors, in threaten-ing to commence proceedings for libel against the member, had actedin breach of the Privilege of Parliament. If I may say so with respect,it is to the credit of the House of Commons that these conclusions wererejected, though only after a somewhat acrimonious debate.
There appears to be no judicial definition of the expressions “ pro-ceedings in Parliament ” or “ capacity ” as a member of Parliament.But the Courts have from time to time stated what various specificmatters connected with Parliament do or do not fall withinthe ambit of its “proceedings ”. These cases are referred to in RrskineMay’s Parliamentary Practice (14th edition) Gl. They afford no pre-cedent for holding that in writing the letters PI or P3 Mr. Munasinghewas acting in his “ capacity ” as a member of the House of Representa-tives. I see no reason to give to “ capacity ” in the expression “ inhis capacity as such member ” in section 14 of the Act a wider meaningthan that w hich the w ord bears in the expression “ in his judicial capacity”in the same section. I agree with the submission of Mr. H. V. Pererathat a member of the House of Representatives cannot be regarded asacting “ in his capacity as such member ” within the meaning of section14 except in the exercise of the functions of his office as such member.The prosecution has failed to prove that in writing PI or P3Mr. Munasinghe was acting in the exercise of any such function.
Before I conclude this judgment I wish to refer to an argument of theAttorney-General based on the proviso to section 14. By virtue ofthe proviso it would not be an offence under the preceding provisions ofthe section for any trade union or other organization to offer to a memberof the Senate or the House of Representatives or for any such member toaccept from any trade union or other organization, any allowance or otherpayment solely for the purposes of his maintenance. While an allowanceis a “ gratification ” within the definition of that term in section 91 of theAct, neither the offer nor the acceptance of such gratification would perse be punishable as it is also necessary for the constitution of an offenceunder section 14 that the gratification is offered or accepted as an in-ducement or reward for the member’s doing or forbearing to do any actin his “ capacity ” as such member.' The Attorney-General submittedthat in the case contemplated in the proviso all the elements of an offenceunder the preceding provisions of the section are present in that themember concerned, in utilising the allowance towards his maintenanceas a member, would thereby be doing an “ act” in his “ capacity” as suchmember. On the strength of this submission the Attorney-Generalinvited us to regard the proviso as indicating that there may be the doingof an “act” by a member of the House of Representatives in his“ capacity ” as such member within the meaning of section 14 eventhough the “ act ” be not done in the course of proceedings in the House.I om unable, however, to agree that a member of the House of Repre-sentatives w7ho maintains himself is doing an “ act ” within the meaning ofsection 14, or that such member who maintains himself on an allowancewhich is paid to him for no other reason than that he is a member of ft o
36
SINNETAMBY, J.—The Queen v. Michael de IAvera
House of Representatives is doing an “ act ” in his “ capacity ” assuch member. If the learned Attorney-General's argument is to prevail,it could be said of a member of the House of Representatives that ineating his lunch or dinner (being part of the process of maintaininghimself) the cost of which is met from the allowance paid to him, he isdoing an “ act ” in his “ capacity ” as such member.
*
It is possible, as Mr. H. V. Perera suggested, that the genesis of theproviso to section 14 is in the findings of the Bribery Commission in itsreport published as Sessional Paper No. XII of 1943, that certain nomi-nated European members of the former State Council had accepted a“ gratification ” within the Commission’s terms of reference in that theywere in receipt of a regular allowance paid to them by the Chamber ofCommerce and certain other organizations. In view of these findingsthe legislature may have intended, in enacting the proviso to section 14,that the offer of an allowance by a trade union or other organizationsolely for the purposes of maintenance of a member of the Senate or theHouse of Representatives, or the acceptance of the allowance by suchmember, should be taken out of the operation of the preceding provisionsof the section even if the understanding on which the allowance is paid isthat the member would conduct himself in a particular way in proceed-ings in the Senate or the House of Representatives, as the case may be.
In considering whether this particular proviso throws any light on theconstruction of the preceding provisions of section 14, it is well to bearin mind, however, that while the effect of an excepting or qualifying pro-viso is, ordinarily, to except out of the preceding portion of the enactment,or to qualify something enacted therein, which but for the proviso wouldbe within it, often a proviso is inserted to allay fears and to protect per-sons who are unreasonably apprehensive of the effect of an enactmentalthough there is really no question of its application to their case.
In my opinion, the prosecution has failed to prove that the gratificationoffered to Mr. Munasinghe on the 19th or the 22nd December, 1958, wasfor his doing an act in his “ capacity ” as a member of the House ofRepresentatives. This failure goes to the root of all the charges. In thecircumstances, however reprehensible the conduct of the accused mayhave been, they are entitled to an acquittal on those charges. I setaside their convictions and the sentences passed on them and acquitthem.
SlNNETJAMBY, J.
I agree with the views expressed by my brother Weerasooriya in thejudgment prepared by him, which I have had the advantage of reading,and would like to add a few reasons of my own in support of the^conclusions be has reached.
'The Bribery Act of 1954 was enacted with the object of cleansingthe public life of this country by introducing provisions to cope with“modern methods of corruption”, some of which were not contem-plated and many of which were not provided for in the somewhat
SIMNETAMBY, J.—The Queen v. Michael de Jjivera
37
antiquated provisions of the Penal Code. It makes provisions for theprevention, detection and punishment for bribery. Part 2 deals ■with"the offence of bribery in its various forms and enacts provisions detailingi>he circumstances in “Which a person would be guilty of the offence.
Section 14 had special reference to bribery of judicial officers, Senators,and members of Parliament. Sub-section (a) of Section 14 penalisedthe offer of any gratification to a judicial officer, as an inducementor a reward for such officer doing or forbearing to do any act in hisjudicial capacity, or to a member of the Senate, or the House of'Representatives as an inducement or a reward to act or forbear to doany act in his capacity as such member. In order to understand andappreciate the significance of the term “ in his capacity as such member ”it would be useful to examine a few of the other provisions of this part. of the Act.
In contrast to Section 14, Section 15 penalised a member of Parlia-ment—for the purpose of this case I shall confine myself to members ofParliament—who accepts a gratification for interviewing a publicservant or appearing before a judicial tribunal of which a public servantis a member : it does not postulate that the member should appear“ in his capacity as a member ” in order to render himself or the personwho offers the gratification liable to incur the penalty. Here the merefact that he is a member places a restriction on the right he otherwisehad.
Section 22 penalises a person who offers gratification to a member ofa local body or of a scheduled institution. I shall confine myself tomembers of a local body for the purpose of this case as they bear a closerresemblance to members of Parliament. Sub-section (a) (i) deals withthe exercise by such a member of his rights to vote or abstain fromvoting at a meeting where the gratification offered is to induce him todo one or the other of these things. This sub-section penalises the personoffering the bribe. Clearly in that case a member is influenced in respectof proceedings in the Council, where he acts in his capacity as a member.Sub-section (a) (ii) deals with the gratification given for the purposeof such member performing or omitting to perform an official act andpenalises the offering of a bribe for such a purpose. The expression“ official act ” has not been defined but its ordinary dictionary meaningis an act pertaining to the office which such member holds ; it must,furthermore, in the context be in respect of an office in the local bodyor institution. It must necessarily relate to an activity the memberwould not be able to indulge in but for the fact that he is a member.-One may, therefore, with justification, infer that it relates to an act
38
SINNETAMBY, J.—The Queen v. Michael de Livera
which a member performs in his capacity as a member ; that is to say,something which he would not have been able to do or abstain fromdoing but for the fact that he is a member. There is a penalisation inthis sub-section of yet another kind of activity. This sub-section also-penalises gratification given as an inducement or reward to a memberfor his aid in procuring, expediting, delaying, hindering or preventingthe performance of an official act. It seems to me that, in regard to-this kind of activity, it can be done, not only by a member, but alsoby a person who is not a member. It follows, therefore, that Wheremember does an act to achieve this object, though he does not do some-thing by virtue of his membership, the giver of the gratification wouldnevertheless be guilty under that sub-section from the mere fact of therecipient’s membership : the latter would then not be aoting in hiecapacity as a member. Likewise, in sub-section (a) (iii) the offer of agratification, as an inducement or reward for a member’s aid in.procuring or preventing the passage of a vote or the granting of anycontract or advantage in favour of a person, is penalised ; but a member’said may be given either because no one but a member by virtue of hismembership is in a position to give it, or because the aid is of a kindcapable of being given by anyone quite irrespective of whether he isa member or not, but it so happens that he is a member. In the formercase he would, it seems to me, be acting in his capacity as a memberbut in the latter case he would not. It may be an act which even a non-member can perform by influencing those entitled to vote or grant acontract but if he happens to be a member, that mere fact makes boththe giver of the gratification and the recipient liable under sub-sections (a) (iii) and (c) respectively. It will thus be seen that inSection 22 what is penalised is the giying of a gratification not only foracts to be done by a member by virtue of the rights, powers, privileges,etc., which he is entitled to enjoy by virtue of his membership, but alsofor similar acts which he in common with non-members is in a positionto do. In the latter event the giver is penalised only if the recipienthappens to be a member. If my view of Section 22 is correct, it wouldlend support to the view that Section 14 (a) is confined to those cases inwhich a member does an act which he is able to do only by virtue ofthe legal powers vested in him as a member and which act he would notbe able to perform but for the fact that he is a member.
A person may act in various capacities : he may act in his officialcapacity when he performs functions pertaining to the office he holds ;but, although he cannot divest himself of the office he holds, he maystill act in a private or personal capacity, i.e., when he does somethingwhich he in common with other people who are not holders of thatoffice are able to do. In interpreting Section 14, therefore, it seems to
SHTETETAMBY, J.—The Queen v. Michael de Liver a
39
me, one must first ask oneself whether the act, for the doing of whicha gratification is offered, is one which the member of Parliament cando only because he is'a member of Parliament. If so, it is somethingwhich he does in his capacity as such member. If it is something whichhe could have done even though he were not a member, the mere factthat he is a member does not bring the act -within the purview of thesection. In the result, in order to decide whether a person is acting inhis capacity 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 that he isacting in his capacity as such member.
The learned Attorney-General contended that the words “ in hiscapacity as such member ” occurring in Section 14 is used in thepopular sense to cover even cases in which a member performs an actwhich is not strictly referable to his exclusive legal powers. If this isso the acts penalised by Section 15, namely, the receipt of a reward orfee to appear before a public servant, etc., would be covered by Section 14.Why then was there any necessity to enact Section 15 ? The existenceof Section 15 in the Act favours the view' that the words “ in his capacityas £uch member ” are used in the strictly legal sense which I haveendeavoured to explain *, otherwise, it seems to me, it would have beenmore appropriate to use the words “ in any capacity ” in place of thewords “ in his capacity as such member ” in Section 14. In thisconnection it will also be useful to refer to certain decided cases wherethe same or similar expressions have been judicially considered.
In the case of Tarttelin v. Bowen 1 a member of the armed forces wascharged with having in liis possession a firearm without a certificatefrom the proper licensing authorities. Section 5 of the Firearms Actof 1937 provided that a certain provision of the Act, in so far as it relatesto the possession of firearms and ammunition, does not apply to“persons in the services of His Majesty in their capacity as such TheJustices were of the opinion that the Act permitted the possession ofa firearm and ammunition by a Flight Lieutenant in the Royal AirForce though they had not been issued to liim as a member of HisMajestj^’s Forces. In point of fact, they had been purchased by himprivately -without a certificate from the proper authority. The King’sBench Division consisting of Lord Goddard, Lord Humphrey and LordAtkinson set aside the order of the Justices. The Chief Justice, LordGoddard, said, “ This seems entirely to overlook the words * in theircapacity as such ’ and held that- the possession of a firearm by amember of the armed forces is an offence unless it had been issued to
K1947) (2) A. E. R. p. 837.
40
SINNETAMBY, J.—The Queen v. Michael de Liver a
him or acquired by him in his capacity as a member of the armed forces.The exemption they held did not apply to private purchases made bymembers of the armed forces. It seems to me that, likewise, theoffer of a gratification under Section 14 to a member of Parliamentto do something in bis private capacity would not be an offence. InStephenson, v Higginson1 the question that arose was whether theRegistrar of an Ecclesiastical Court who had prepared documents anddone acts necessary for obtaining letters of administration hadeommitted an offence in breach of Sections' 9 and 10 of Act No. 54Geo. 3, c. 68, which prohibited the doing of an act “ appertaining orbelonging to the office, function, or practice of a proctor, for or inconsideration of any gain, fee or reward ” without being enrolled as aproctor. The evidence in this case showed that it was customary forthe Registrar, where there was no contest, to prepare these documents.The House of Lords held that, in construing the provisions of the Actof Parliament, the acts intended to be prohibited were those which werelegally incident to the office of a proctor, not those which thoughusually performed by him were not of right incident to his office.Therefore, the Registrar who had prepared the documents had notsubjected himself to the penalty imposed by the Act. The LordChancellor in the course of his judgment said “ it seems to me, therefore,that the words ‘ appertaining or belonging ’ are words used in theirproper sense and meaning, i.e., in the sense of rightly and exclusivelybelonging to the office of a proctor.'^” Further, the opinion was expressedthat in construing an Act of Parliament, “ every word must be under-stood according to its legal meaning, unless it shall appear from thecontext that the Legislature has used it in a popular or more enlargedsense ; that is the general rule ; but in a penal enactment, where youdepart from the ordinary meaning of the word used, the intention ofthe Legislature that those words should be understood in a more largeor popular sense must plainly appear ”.
Having regard to the provisions of Sections 14, 15 and 22, it cannotin this case be said that the intention’of the Legislature was that thewords “ in his capacity ” should be used or understood in a larger andmore popular sense. Furthermore, it is a penal enactment and, there-f ore, if two views are possible in regard to^the interpretation to be placedupon the words, the benefit of any doubt should be given to the accused
In this connection, the learned Attorney-General contended that itis the duty of a Court to consider a statute in^such a way as to “ suppressthe mischief and advance the remedy”; He referred to a passage in
1(1852) (10) English Reports—Rouse of Lords, p. 638.
SINISTETAMBY, J.—'The Queen v. Michael de Livera
41
Maxwell (10th edition, page 68) where it is stated that “ even where theusual meaning of the language falls short of the whole object of theLegislature, a more extended meaning may be attributed to words, ifthey are fairly susceptible of it. The construction must not, of course,be strained to include cases plainly omitted from the natural meaningof the words. ” He also relied on another passage in Maxwell (10thedition, page 7) to the effect that one “ should avoid a construction whichwould reduce the legislation to futility and should rather accept thebolder construction based on the view that Parliament would legislateonly for the purpose of bringing about an effective-result. ”
In the case of the Bribery Act I do not think the words used inSection 14, having regard to the other provisions in this part of theAct, are fairly susceptible of the meaning which the learned Attorney-General sought to put upon it ; nor do I think that in placing theconstruction we have placed upon it, we would be reducing the legislationto futility or make it ineffectual.
With regard to the proviso to Section 14 and the argument basedupon it, I agree entirely with the views expressed by my brother.
I would respectfully endorse the opinion of Lord Watson in WestDerby Union v. Metropolitan Life Assurance Society 1 “ If the languageof the enacting part of the statute does not contain the provisions whichare said to occur in it, you cannot derive these provisions by implicationfrom a proviso. ” In the same case Lord Herschell explained howmeaningless provisos sometimes come to be enacted merely to allaythe unreasonable fears of apprehensive persons who think thatsome Court may possibly apply the main provision of the enactmentto their case though in point of fact they are not applicable.
The first accused, therefore, in offering the gratification toMr. Munasinghe did not induce Mr. Munasinghe to do an act in hiscapacity as a member of the House. However reprehensible the conductof the first accused may be, and whatever other offence he may havebeen guilty of, he certainly was not guilty of the offence contemplatedby Section 14 (a) of the Bribery Act. I
I agree that the convictions should be set aside and both the accusedacquitted.
Appeals allowed~
*{1897) Appeal Cases p. 647 at p. 652.