TUCKERS LTD., Appellant, and THE CEYLON MEROANTILEY UNION, Respondent

058-NLR-NLR-V-73-TUCKERS-LTD.-Appellant-and-THE-CEYLON-MEROANTILEY-UNION-Respondent.pdf


Tuckers Ltd. v. Ceylon hi crcantile Vniog.-31/
1970 Present: Slrimane, J., Teonekoon, J., and W^eramantry, J;
TUCKERS LTD., Appellant, and THE CEYLON^M^tfANTILRY.UNION, Respondent
<S. C. 17 of 1969 {with S. C. Certiorari Application 493 of 1969)—Labour Tribunal Case No. 5/11172
Industrial Disputes (Special Provisions) Act, No. 37 oj 196S—Sections 6 and 7nullifying certain identifiable decisions of the Supreme Court—Validity—Constitutional law—Principle of Separation of Powers—Applicability inCeylon—Statuteimpugned as encroaching upon judicialsphere—
Considerations applicable—Power of Court to scrutinise the background tolegislation—Ceylon (Constitution) Order in Council, 1946 (Cap. 379), s. 29 (1).
Section 6 of the Industrial Disputes (Special Provisions) Act, No. 37 of 1968*reads as follows :—
“ Whore any order of any labour tribunal was subsequently quashed bya relevant decision of the Supremo Court on appeal or on application byway of writ on the gTound that tho president of such tribunal, not havingbeen validly appointed, had no jurisdiction to make such order, thefollowing provisions shall apply in the case of such appeal or applicationby way of writ, os the case may be :—
such decision of the Supremo Court shall be deemed to have been,
and to bo, null and void ;
such appeal or application by way of writ shall be deemed to be an
appeal or application which was not decided by tho Supremo Court,but to be an appeal or application made de novo to such Court onthe relevant date;
Tho Supreme Court is hereby empowered and authorised, and
shall have jurisdiction, to ontertain, hear and dooide such appealor application de novo; and
the practice and procedure to be followed by the Supremo Court
in entertaining, hearing and deciding such appeal or applicationde novo shall be determined by order of the Chief Justice. ”
Section 7 is in tho same terms and applicable to awards of arbitrators of anIndustrial Court on a reference msdo by tho Minister under tho principal Act.
It was contended that, by nullifying certain decisions of tho Supremo Courtby enacting sections 6 and 7 of Act No. 37 of 1968, tho legislature exercisedjudicial power and that the statute was therefore ultra vires of tho Constitution.
Held, (i) that the Ceylon (Constitution) Order in Council, 1946, recognises theprinciple of tho separation of legislative, executive and judicial power. Inorder to ascertain whether an Act of Parliament encroaches on the judicialsphere it is necessary to look at tho Act os a whole' and not at a particularSection isolated from other provisions of tho Act. Furthermore, when a statuteis impugned os being unconstitutional, it is permissible to look at tho backgroundof the legislation, including White Papers and other matters extraneous to tholegislation itself.
lxxih—14
1*J 17100 2,255 (10/70)
314
Tuckers Ltd. v. Ceylon'Mercantile Union
(ii) by SlRlMANE nnd Tensekoon, JJ., that tho provisions of sections 6 and7 of the Industrial Disputes (Special Provisions) .Act-. No. 37 of IOCS, were validalthough they nullified expressly certain identifiable decisions of the SupremeCourt. By enacting them tho legislature did not make any encroachmenton tho judicial sphere. Tho Act was not directed t'o a particular caso, butapplied to a wholo class of eases. 7t conferred- no rights nnd imposed noliabilities on particular parties. In passing the Act in consequence of the decisionof the Privy Council in The United Engineering Workers' Union ' v. Devanayagatn{GO N. L. R. 2S9) regarding tho validity of tho appointment of labour tribunals. and industrial courts, Parliament was only acting in aid of tho'judicial powervested in the courts ; this was a legitimate function of tho legislature.
Per Wkeramaxtry, J.—While thoro nro many features in tho" impugnedlegislation which, considered by themselves, appear to encroach, upon thosubstance of judicial power, still, whon ono has regard to tho contoxt andbackground of these provisions, ono is left at least in a stnto of doubt as towhether this particular enactment was not aimed at.conserving the jurisdictionof tho courts rather than at nullifying court decrees. Ono cannot say withassurance that tho only viow reasonably possiblo is that tho impugned legislation,encroaches on tho judicial, power. . In this resulting position of doubt thc-rocomes into play tho prineiplo that unloss it becomes clear beyond reasonabledoubt that tho legislation in question encroaches tin tho judicial powor, thopresumption that Parliament did not intend to pass beyond constitutionalbounds.must prevail. Hence tho legislation in question should bo upheld.
Each caso of alleged encroachment upon tho judicial power must bo considorodin tho light of its own particular facts and circumstances, and no general rulecan bo formulated for determining whethor such encroachment has takonplace.
. OrDER in respect of a preliminary objection to the hearing of anappeal and a certiorari application.
In Appeal No. 19 of 1969—
II. TV. Jayeicardene-, Q.O., with Mark Fernando, D. O. Amerasinghe*and Sepala Munasitighe, for tho employer-appellant.
N.Satyendra, with Prins Rajasooriya, for the applicant-respondent.
R.S. Wanasundera, Senior Crown Counsel, with L. D. Gurxmvamy,Crown Counsel, as amicus curiae.
In Application No. 493 of 1969—
Lakshman Kadirgamar, with C. A. Amerasinghe, for tho petitioner.
N.Satyendra, trith M. Shanmuganathan and K. Vaikunthavasan, forthe respondent.
-•/ R. S. Wanasundera, Senior Crown Counsel, with A. D. Guruswamy,Crown Counsel, as amicus curiae.
Cur, adg, vult,
SIRIMANE, J.—Tuckers Ltd. v. Ceylon Mercantile Union315
Juno 24, 1970. Sihimaxe, J.—The appeal, No. 17 of 1969, and application No. 493 of 1969 were arguedbefore us together as tho identical question of law arises for decision inboth matters.
Tho appeal had come up for hearing earlier beforo two Judges of thisCourt, and by an order dated 26.1.66, this Court quashed tho order of theLabour Tribunal on the ground that the Tribunal was not properlyconstituted. In making that order, the Court followed the decision inWalker Sons <£.• Co. Ltd. v. Fry *, which is a decision by a majority of aBench of five Judges. A similar order had been mado on 21.1.66 in thoapplication, which is one for a Writ of Certiorari to quash tho orderof the Labour Tribunal on the same ground.
Together with Walkers Case (supra) a number of other appeals andapplications were also argued ; one of them being tho case of The UnitedEngineering Workers’ Union v. Dcvanayagam 2, in which there was anappeal to the Privy Council. The orders in the two cases now underreview were made pending that appeal.
The Privy Council by a majority judgment held that a President of aLabour Tribunal does not hold judicial office and therefore does notrequire to be appointed by the Judicial Service Commission.
Thereafter, the Legislature passed Act No. 37 of 1968, and the appealand the application have been listed for hearing under the provisionsof that Act. An objection is taken to tho hearing of this appeal bythe appellant, as it is contended that in passing Act 37 of 1968 thelegislature exercisod judicial power, and the legislation is therefore ultravires. Tho attack is on sections 6 and 7 of the Act, and incidentallyon section 10.
Section 6 reads as follows :
“ Where any order of any labour tribunal was subsequently quashedby a relevant decision of tho Supreme Court on appeal or on applicationby way of writ on the ground that tho president of such tribunal, nothaving been validly appointed, had no jurisdiction to mako such order,the following provisions shall apply in the case of such appeal orapplication by way of writ, as the case may be :—
. (a) such decision of the Supreme Court shall be deemed to havebeen, and to bo, null and void ;
(6) such appeal or application by way of writ shall be deomed to bean appeal or application which was not decided by the SupremeCourt, but to be an appeal or application made de novo to such
Court on the relevant date ;
1 [1065) 63 N. L. R. 73.
[1967) 69 A'. L. R. 289.
316
SIRI.MAXK, J.— Tuckers Lid: v. Ceylon Mercantile Union
tho Supremo Court is hereto empowered anil authorised, andshall have jurisdiction, to entertain, hear and decide such appealor application de novo ; and
tho practice and proccduro to be followed by the SupremoCourt in entertaining, hearing anrl deciding such appeal orapplication de novo shall be as determined by order of theChief Justice. ”
Section 7 is in the same terms and applicable to awards of arbitratorsof an Industrial Court on a reference made by the ^Minister under theprincipal Act.
Section 10 enacts that tho provisions of tho Act should boregarded as amendments to the Ceylon (Constitution) Order in Council,1946.
We have examined tho original copy of tho Act which bears thoCertificate of tho speaker of the House of Representatives that it waspassed by a two-third majority; in fact, it was admitted at theargument that tho Act had been passed unanimously.
In Liyanage v. The Queen-,1 tho Privy Council held that under ourConstitution there is a Separation of Powers, and that the judiciaryalone can exercise the judicial power of tho state. In Kariapper v.Wijesinghe 2 which upheld the legislation impugned in that case, theargument at the Privy Council proceeded on that footing. Sir DouglasMenzies said, at pago 53:
“ Tho second matter not in controversy before tho Board was that
the constitution of Ceylon embodies tho doctrine of the.separation of
legislative, executive and judicial power, at least to tho extent that it
commits judicial power to tho Courts to the exclusion of the Parliament.
This was decided by the Privy Council in Liyanage v. The Queen."
At an earlier stage in the Liyanage case this Court also held thatthere was a Separation of Powers (See : The Queen v. Liyanage 3).
So that the principle of Separation of Powers is now beyondcontroversy.
The first question that arises therefore is whether in the provisions ofthe impugned Act Ho. 37 of 1968, thero is a usurpation of judicialpower by the ligislature.
In dealing with this question one must bear in mind thataCourt shouldbe 6low to strike down an Act of Parliament unless there is a clearencroachment on the judicial sphere.
* (1965) 68 N. L. W. 2C5.' (1967) 70 1V. L. R. 49.
* (1962) 64 N. L. R. 313.
SIRIMAXK, J.—Tuckers Ltd. v. Ceylon Mercantile Union317
In order to ascertain whether thero has been such au enroachment oneshould, I think, look at the Act as a whole and not at a particular Sectionisolated from other provisions of the Act. I am also of the view that indetermining this question it is permissible to look at the object and thetrue purpose of the legislature in passing tho Act.
Lord Pearce in tho Liyanage Case (supra) in examining tho impugnedlegislation in that Case said, at pago 283—
“ But such a lack of generality in criminal legislation need not, ofitself, involve the judicial function, and their Lordships are not pre-pared to hold that every enactment- in this field which can be describedas ad hominem and ex post facto must inevitably usurp or infringe thejudicial power. Nor do they find it necessary to attempt the almostimpossible task of tracing where the lino is to bo drawn between whatwill and what will not constitute such an interference. Each casemust be decided in the light of its own facts and circumstances, includ-ing the true purpose of the legislation, tho situation to which it wasdirected, the existence (where several enactments are impugned)of a common design, and the extent to which the legislation affects,by way of direction or restriction, the discretion or judgment of thejudiciary in specific proceedings. ”
Let us examine the situation with which the legislature was faced.
With the growth of industry, the passing of new labour laws, and thegrowth of trade unionism labour Tribunals had to play a very importantpart in the settlement of industrial disputes. After t lie decision in Walkers'Case in pursuance of the law as laid down by this Court, the functionof appointing Labour Tribunals was taken over by the Judicial ScrvicoCommission, and these Tribunals functioned thereafter on the authorityof the appointments made by that body. But, before that administrativestep was completed several orders which affected the rights of workmenand employees made by the Labour Tribunals appointed by tho PublicSorvico Commission were quashed (on appeals by the employers or onpetitions by way of Writ) on the basis that the decision in Walkers’Case was right. When the Privy Council held that the decision waswrong, tho Labour Tribunals had to be appointed once again by thePublic Service Commission, and it was clear that the quashing of theorders on the authority of Walkers' Case was done on a wrong basis ofthe law.
It was in these circumstances that Act No. 37 of 19GS was passed,which according to the Act itself is—
“ An Act to provide for the removal of certain difficulties in thosettlement of industrial disputes and other matters under tho IndustrialDisputes Act which have arisen in consequence of decisions made bytho Supreme Court and decisions made on appeal to Her Majesty inCouncil, and to provide for matters connected therewith or incidentalthereto. ”
117100(10/70)
318
SURIMAXE, J.—Tuchcra Ltd. v. Ceylon Mercantile Union
Section 2 (I) of tho Act validates those appointments of Presidentsmade by the Judicial Service Commission, and sub-section (2) enacts—
“ Nothing in sub-section (1) shall be deemed or construed to validateany order of any labour tribunal which was subsequently quashed byany relevant decision of the Supremo Court on appeal or on applicationby way of writ:'
Provided, however, that nothing in tho preceding provisions of thissub-section shall be deemed or construed to preclude or prevent Suchappeal or application by way of writ from being entertained, heard anddecided de noro by the Supremo Court, as hereafter provided in thisAct. ”
Section 3 makes provisions applicable to applications rejected ordismissed by Labour Tribunals on the basis of the decision in Walkers,Case. Section 4 validates the appointments of Panels under tho Indus-trial Disputes Act by the Governor-General, the constitution of IndustrialCourts drawn from thoso Panels, references made to those Courts, andawards granted by such Courts. Sub-section 3 of Section (4) is in tho.same terms as sub-section 2 of Section (2). Section 5 mates specialprovisions relating to appointments and nominations of Arbitrators andreferences made to such Arbitrators', again with a sub-section (sub-section3) in the same terms as sub-section 2 of Section 2.:
There follow Sections 6 and 7 already referred to earlier. Section Smakes similar provisions with reference to applications for execution ofawards in tho Magistrates’ Courts. Section 9 provides that thoprovisions of the Act should prevail in tho event of a conflict, with theprincipal Act.
Section 10, as stated earlier, enacts that tho provisions of the Actshould be regarded as an amendment to tho Constitution, and;tho lastSection (Section II) is the “ Interpretation ” Section.v
It can bo seen therefore that the Act is not directed to a particular case,but applies to a whole class of cases. It confers no rights and imposes noliabilities on particular parties. It is not directed to influence the Courtsto make an order either against or in favour of any particular party orparties to a dispute. It docs not seek to defy the authority of the Court.The provisions of sections 2 (2), 4 (3), and 5 (3) are directed to ensure thatorders made by this Court on any ground other than tho decision inWalkers’ Case should remain undisturbed.
Sections 6 (6) and G (c) confer a jurisdiction on the Court to hear appealsand applications in tho exercise of its judicial power, in accordance withthe law as interpreted by tho highest Appellato Tribunal, and theprovisions of Section 6 (a) which at first sight appear to offend againstthe exclusive exercise of judicial power by the Court, when viewed inits proper context, operate only to remove a technical bar to the exerciseof judicial power by the Court, on the jurisdiction conferred by Section6 itself.
SHUMANE, J.—Txtckera Ltd. v. Ceylon Mercantile Union
319
A somewhat similar situation arose in the case of Anthony Naide v.The Ceylon Tea Plantations Co. Limited ,l In 1966, Parliament passedan amendment to the Rent Restriction Act in order to grant greaterprotection against eviction to tenants who occupied premises, the autho-rised rent of which was under Rs. 100 per month. The legislationwas made retrospective from 1962, and actions pending in the originalCourts, and appeals pending in the Supremo Court to which the provisionsof the amendment applied, were declared null and void. The Act alsoprohibited the enforcement of judgments and decrees already enteredin cases to which the Act applied. It ws held by a Bench of threeJudges of this Court that the amending Act is only a case ofthe jurisdiction of the Court being altered both prospectively andretrospectively, and that tho legislation did not constitute an exerciseof judicial power by the legislature.
In the case of The Federal Commissioner of Taxation v. Munro *Isaacs J. said at page 180—
" Nullification of enactments and confusion of public business arenot lightly to be introduced. Unless, therefore, it becomes clearbeyond reasonable doubt that the legislation in question transgressesthe limits laid down by the organic law of the Constitution, itmust be allowed to stand as the true expression of the national will.Construction of an enactment is ascertaining the intention of thelegislature from the words it has used in the circumstances, on theoccasion and in the collocation it has used them. There is alwaysan initial presumption that the Parliament did not intend to passbeyond constitutional bounds; if tho language of a statute is notso intractable as to be incapable of being consistent with thispresumption, the presumption should prevail. ”
Read as a whole, both in form and substance, Act 37 of 1968 is, inmy view, an Act of legislation. It docs not (in the words of Sir DouglasMenzics in the Kariapper Case) “ speak like a Court order ”. It is not a" legislative judgment ” and when its provisions are closely examined,the Act in reality aids the exercise of judicial power by the Courts.
As I am of the view that there has been no encroachment on the judicialsphere by tho legislature it is unnecessary to express an opinion on themany other important constitutional issues that were argued before us—e.g., as to what the effect of the passing of the Act by a two-thirdmajority would be had there been such an encroachment.
The appeal and .application will now be listed for hearing in due course.Costs will abide the event.
I thankfully acknowledge the assistance rendered at the argumentby the learned Crown Counsel who appeared as amicus at the requestof the Court.
(1966) 68 X. L. A. 553.
38 Commonwealth Law Reports 133.
320TEN>TEKOON. J.—Tuckers Ltd. v. Ceylon Mercantile Union
Tkvmekoon, J.—
■ I have the advantage of having read tho opinion of my brotherSirimane, J.
: I agree that the preliminary objection taken by tho appellants to therehearing of appeal 17/de Novo/69 and S.C. (Certiorari) Application493/de Novo/69 on tho ground that the provisions contained in sections6 and 7 of Act No. 37 of 1968 are ultra vires of the legislature, cannot beupheld and with his reasons for taking that view. I would like howeverto add some comment of my own.
The observations that follow are mainly concorncd with section 6 ofthe impugned Act; but they apply in substance if not in detail tosection 7 too.
At tho time the decision of tho Privy Council in the United EngineeringWorks Union v. ■ Devanayagam1 became known tho position was a.**foliows:-
According to that decision of tho Privy Council made on or about9th March 1967 the President of a Labour Tribunal does not holdjudicial offico within the moaning of section 55 (6) of the CeylouConstitution and Independonco Orders in Council.
According to well accepted theories of the declaratory nature of
judicial pronouncements on the law, this has been the law from thetime the office of President, Labour Tribunal, was first constituted in1957 by Act No. 62 of that year.1 '
In a number of appeals under section 31D of the Industrial
Disputes Act and Certiorari Applications made in connection withorders and awards of Presidents of Labour Tribunals, this Gourt hadin decisions made prior to the Privy Council decision in the Devanaya-gam case, quashed such order or award on the ground that the office ofPresident of Labour Tribunal was a judicial office and the Presidents inquestion not having beeu appointed by the authority designated inthe Order in Council for t he appointment of judicial officers, their ordersand awards were void and of no effect in law.*•
These decisions of the Supreme Court were final and
res adjudicglae between the parties : Neither party had a right as thelaw stood to re-agitate the questions involved in those appeals andapplications. -V
The Supremo Court itself had no power under the law as it stood,even if it were so disposed, to rehear those appeals and applicationsor to revise the orders it had made although it was now apparent thatthey had been decided by the application of a wrong view of-law. V
V Thus according to the law as it stood prior to the enactment of thoimpugned law, the position was that tho parties had no right to a rehearingnniJ the court had no power to grant one. This w as tho result of the law(3967) 69 tt. L. R. S89.., ■
TENSEKOON, J.—Tuckers Ltd. v. Ceylon Mercantile Union
321'
derived from the statutes dealing with the constitution and powers of ourcourts and the binding effect of judgments. The general result of theseprovisions is that where the law is declared in one way and is subsequentlyoverruled whether by the same tribunal or by a higher one and declaredto be different-, tho overruling is retrospective except as reyards mattersthat are res judicatae.
One of the submissions made by counsel for tho petitioners is that para-graphs (a) and (c) of section 6 (as also paragraphs (a) and (c) of section 7) areultra vires of the legislature for tho reason that in those provisions thelegislature is doing what only an appellate court can do : more specificallyit is said that it would have needed an order of the Queen in Councilacting in appeal from the decisions of the Supreme Court to set aside thedecisions of tho Supreme Court and to direct a rehearing ; and that thelegislature in enacting those provisions was itself exercising the judicialpower of the state ; this it is contended the legislature cannot do as theConstitution of Ceylon has committed the judicial power to the courts tot ho exclusion of Parliament. The attack on the provisions of the act isput in two ways ; firstly that it is not a law at all but a judgment; andsecondly, even if it is ex facie a law', it is void as offending against theseparation of powers embedded in our Constitution ; but it seems to methat in whatever way the submission is put-, the question for decisionis whether the impugned provisions were an exercise of judicial powerby the legislature or a legislative interference with tho court in theexercise of its jurisdiction.
In tho Kariapper case 1 the Privy Council in considering a similar sub-mission made relative to the law impugned in that case, said, in regard tothe contention that it was not a law, that a fundamental obstacle to sucha contention was that the Act in question was in form a law altering thelaw as it stood ; here too we have what is ex facie an Act of Parliament andcontaining provisions altering rights of persons and conferring new powerson a court. But this approach caunot be conclusive and is of course notan answer to the contention that the law is void as offending against thoseparation of powers. In the Kariapper case their Lordships found ananswer to this submission in the fact that the deprivation of the rightwhich a member of Parliament enjoys to sit and vote in the House towhich he is elected or appointed irf not exclusively a power of the courtsbut is referable also to the Parliament’s own disciplinary powers over itsmembers.
What exactly has Parliament done by the legislation in question here?
It has granted a power or jurisdiction to the Supremo Court which It didnot have before. This is clearly an attribute of the legislative power.Secondly it has in effect and substance varied the operation of the rule ofres judicata. This it has done in regard to a class of case and not byreference to particular cases picked without preference to any principle ;there is a general categorisation which brings within the law only cases inwhich, in reaching its decisions, the judicature had applied a view of the1 {.1967) 70 N. L. R. 49.
313
TENNEKOON. J.—Tuckers Ltd. t'. Ceylon Mercantile l/rtion
law which was subsequently declared and acknowledged by tho highesttribunal in our judicial system to bo a wrong view of the law ; thosedecisions of the Supreme Court were plainly wrong ; and the legislature hasacted on that basis not because the executive or legislative branches, ofthe Government took a view of the law different from the Supreme Court’s,but because the judicial branch itself had declared the law to be different.When in those circumstances Parliament steps in to remove the bindingeffect of thoso judgments and to provide for a rehearing by the SupremeCourt-, which will at such rehearing necessarily have to take into accountthe pronouncement of the Privy Council, I cannot see how it can be said,that tho legislature is, under the guise of legislation, exercising the judicialpower of the State or interfering with the exercise of that power. Thecourts are now free to decide the cases involved in accordance with law.On the negative aspects, it is clear that the new law does not decide anycase finally as courts do ; it gives no direction to the courts or seek toimpose a view of the law subsequently declared by the legislature. Itdoes not seek to secure, in the cases affected by the Act, a result predeter-mined by Parliament. As my brother Sirimane, J. has said Parliamentis only acting in aid of tho judicial power, which is a legitimate functionof the legislature. Judicial power is an attribute of sovereignty that hasnecessarily to be exercised by some tribunal; but it is for Parliament tosay what jurisdiction each tribunal shall have ; equally' it is for Parliamentto say when a person may invoke the jurisdiction of a tribunal, whentribunal’s jurisdiction in a particular case shall cease, when it may reviewand revise decisions of inferior tribunals or even its own decisions, andwhen it may rehear a case.
It has however been contended that when Parliament has occasion todeclare the law retroactively, it ordinarily takes care to except from theretrospective operation of tho law any specific cases in which the law hasbeen applied differently. Illustrations of this are to be found in :
Mortgage Ordinance, No. 21 of 1927 .
Quazis (Validation of Appointment) Act, No. 11 of 1965 •
Kandyan Succession Ordinance, No. 23 of 1917.
Relying on these examples of legislation and on what has come to beknown as Dean Roscoe Pound’s " historical criterion ”1 the submissionis made that since the legislatures of thiB country have not in the pastventured, by legislation, to alter the binding effect of judgments on parriesand their privies, such a power should be presumed not to be part of thelegislative power. It seems to me that the "historical criterion ” wasintended for use in a somewhat different context. If the question hereis whether the power of setting aside a judgment of a court is attributableto the judicial or to the legislative power, it would be unnecessary to resortto any historical tests, for there is no doubt that that is part of the judicialpower. Parliament did not, in enacting Act No. 37 of 1968, pretend toact as'an appellate .court.- . What has been done by Parliament is not to.* See Queen v. Livanace (1962) 64 N. L. R. at 356.
TEIOTEKOOX, J.—Tuckers Ltd. v. Ceylon Mercantile Union323
interfere in pending litigation or to reverse the decision of a court merely ;Parliament is in fact only making provisions to ensure that retrospectiveoperation is given to a decision of the Privy Council, with no exceptionsin favour of decided cases. The power of Parliament to legislateretroactively is not in doubt ; to what extent it will limit the retroactiveeffect of such legislation in order to avoid intolerable hardship toindividuals and to preserve rights already vested is also a matter forParliament. Thero are many cases in which the legislation has in thepast so legislated and where the courts have applied the law to pendingcases and even to completed cases. Tho legislative authority has onoccasion altered the law retrospectively so as to affect the decision in apending case, even requiring that the case “ be dismissed and madevoid ” 1; it has legislated (in general terms and retrospectively) so as toaffect an appeal pending before tho Privy Council 2 ; it has created aright of appeal after the decision of a case was known and had becomefinal 3 ; in the United States, where the doctrine of separation has beenconsidered as more or less fundamental, Congress has withdrawn theright of appeal even while an appeal was pending in the SupremeCourt *. Chief Justice Chase delivering the opinion of the court said :
“ It is quite clear therefore that this court cannot proceed topronounce judgment in this case, for it has no longer jurisdiction of theappeal: and judicial duty is not less'fitly performed by decliningungranted jurisdiction than in exercising firmly that which theconstitution and the laws confer. ”
Remedial legislation is sometimes called for as a result of court decisions.The courts themselves are helpless to remove anomalies and absurditiesthat sometimes arise from the application of the principles of res judicataand precedent . These considerations no doubt do not help to enlarge thelaw making powers of a legislature that does not enjoy unlimitedlegislative power ; but in considering whether a particular piece oflegislation is within the permitted field it is I think the duty of the courtsto look at the substance of what has been done and not merely at theform which particular subsections have taken.
The legislation under attack in this case has granted to this court ajurisdiction to rehear certain cases. I can see no sufficient reason,under a supposed application of the doctrine of separation of powers todecline that jurisdiction.
Two further points were urged by counsel for the appellants : one wasthat the Parliament set up under the Order in Council could not even bymeans of legislation passed in compliance with section 29 (4) thereof, vest
See The Ceylon (Legislative Council) Amendment Order in Council 1928 and thecase oj Aboysekera v. Jayatilleke, {1930) 32 N. L. R. 1.
See the Industrial Disputes (Amendment) Act 39 oj 1968 and the judgmentof the Privy Council in the Colombo Apothecaries Co. Ltd. v. Wijoeooriya,(1970) 73 If. L. R. 5.
See the Parliamentary Elections (Amendment) Act No. 19 of 1918 ; Kulaeingharov. Thambiayah, {1948) 49 N. L. R. 50S and {1948) SO N. L. R. 25.
Ex parte McCardle 19 L. Ed. 264.
324WEERAMAXTRY, J-—Tuckers Ltd. v. Ceylon Mercantile Union
any kind of jurisdiction in itself involving the exercise of the judicalpower of the state; and the other that even, if that wero possibleParliament could not both vest a jurisdiction in itself and exercise it inone piece of legislation. Having regard to the view that I have formedon the main question that was argued before us, viz., that there is inAct No. 37 of 196S no assumption or exercise by Parliament of judicialpower, it becomes unnecessary to pronounce on these submissions.
I agree to the making of the order proposed by my brother Sirimane, .J.Weeramaxtry, J.—
While agreeing with tho conclusions of my brother Sirimane whosejudgment I have had the advantage of perusing, I would wish to add afew words of my own.
Tho matter before us is of special importance and involves legislationof a type of which, as far as we are aware, there has been no previousinstance in this country. This legislation has been attacked on thebasis that it makes inroads into the sphere of judicial power which bylaw and tradition are committed to the courts.
It is true that on many an occasion in the past the legislature hasintervened to set aright an incorrect view of the law taken by the courts. or to lay down the law in a sense contrary to that which till then had.been the view taken by the courts. Indeed the necessity for the legis-lature so to correct the law or to guide it in a new direction must necessarilybe one that often arises. The question before us however is not oneconcerning the undoubted right of the legislature so to alter or redirectthe law but one concerning the inviolability of judicial decisions alreadyentered.
It is noteworthy that in the instances where the legislature has inthe past sought t-o correct or remould the law, the legislature has been 'most particular, while correcting the law for the future, not to interfere ‘with decisions already given on the faith of the pre-existing law or thelaw as it was supposed to be. For example the former Mortgage Ordin-ance No. 21 of 1927 1 provides that chapter 3 thereof" applies to mortgageand transfers of land whether ereated executed or arising before" orafter the commencement of this Ordinance, but shall not affect tho.mutual rights of the parties in the case of K. P. S. T. Sithambaram Chettyof Sea Street, Colombo v. Bentotage David Fernando, Colombo a or anyother case in which the decision of the Supreme Court in the said caseshall have been followed prior to the twenty-fourth day of April OneThousand Nine Hundred and Eighteen
So also, arising from the decision of this Court in Jainulabdeen v.Danina Umma* the legislature enacted the Quazis (Validation of Appoint-ment) Act No. 11 of 1965 validating the appointment of Quazis wheresuch had been appointed by the Ministry but it took particular care to-.*■ — .* Cap. 14 of the 1938 edition oj the Legislative Enactments.
•* Case No. 46630.'* {1362) 64 N. L. B. 419… .. :t
VTEERAMANTRY, J.—Tuckers Ltd. v. Ceylon Mtrcantilo Union
325
provide by section 2 (2) that nothing in sub-section 1 shall be deemedto have affected the decision of the two Judges of the Supreme Courtin the case of Jainulabdeen v. Danina Umina l.
Again when tho Kandyan Succession Ordinance No. 23 of 1917 waspassed to provido for questions relating to tho applicability of Kandj-anlaw to the issue of certain marriages, the legislature provided insection 3 (1) that nothing in the Ordinance shall affect—
the mutual rights of the parties in the case of Mudiyan.se v.
Appuhamy et al. (D. C. Kegallc, 3,236), as declared by the deci-sion of the Supreme Court in that case, or of persons claimingthrough tho said parties respectively ;
the mutual rights of the parties in any other suit in which the
said decision has been followed, or of persons claiming throughthe said parties respectively ;
any disposition of property, or any transaction or family arrange-
ment dealing with property which shall have been duly effectedaccording to law between the date of the said decision and thodate of the commencement of this Ordinance on the basis ofthe law as declared by the said decision.
This provision was necessary as the decision in Mudiyanse v. Appuhamy 3laid down that the offspring of a Kandyan father by a low countrySinhalese woman cannot be regarded as a Kandyan and that domicilewas not a test to be applied in the solution of questions relating to thoapplicability of Kandyan law. The Ordinance provided on the otherhand that the issue of a marriago contracted between a man subject tothe Kandyan law and domiciled in the Kandyan provinces and a womannot subject to the Kandyan law shall be deemed to be and at all timesto have been persons subject to tho Kandyan law.
Another illustration drawn from Kandyan law is the preservation byOrdinance No. 25 of 1944 of the decision in Dunutceera v. Muttuua 3and the decisions based thereon. The amending Ordinance wasconsidered necessary in view of the departure in that decision from thelaw as earlier understood relating to the rights of succession of thehusband of a Kandyan woman married in diga.
More instances can no doubt be collected upon a perusal of theenactments of our legislatures from time to time.
Another illustration that comes to mind concerns the numerousdecisions of this Court rejecting petitions of appeal on the ground of non-compliance with certain procedural provisions. Such rejection, a3 thoPrivy Council observed in Sameen r. Abeywickrema * occurred in a numberof cases cited in the judgment in Thenuicara v. Thenuwara *. Whenthe legislature intervened to set the matter right by the Supreme Court
» 11902) 04 X. L. R. 419.* 1/942) 43 N. L. R. 012.
» (1913) 10 X. L. R. 117.* (1963) 64 X. L. R. 053 at 562.
• (1959) 61 N. L. R. 49.
3t’C WEliKAMAX'J'HY, J-—-.Tucker* /.!•/. r. Ceylon Mercantile, l.'uion
Appeals (Special Provisions) Act No. 4 of 19GQ it- only set the matterright prospectively but the numerous decisions of this Court which hadalready been entered were left untouched. It is also worthy of commentthat although the decision in Thenuwara o. Thenuwara was disapprovedby tho Privy Council in Samcen v. Abeywickrema no legislative provisionensued seeking to eonfer a right- of appeal on all those numerous litigantswho were in effect denied it by reason of the technical view that hadearlier prevailed.
It will be seen as a feature of all these provisions that tlie legislaturepreserved intact the prior decisions of the Courts on the. specific, pointunder legislation.
In the case of this Act, however, it so happens that sections 6 and 7contain subsections by which tho legislature seeks to nullify, and thatexpressly, certain decisions of this Court-. Such particular subsectionsconsidered by themselves would have the appearance of being concernednot with the adjuncts or concomitants of judicial power but with the verysubstance thereof. It. is for this reason that- the present case is oneattended with so much difficulty.
It is true the cases affected are described in general terms and that thelegislation is not on its face directed at any specific decisions, but thisought in principle to make little difference, having regard to tho fact thatthe cases affected are easily identifiable.
The impugned subsections provide that where any order of any LabourTribunal was subsequently quashed by a relevant decision of tho SupremeCourt on appeal or on application by way of writ on the ground that thePresident of such Tribunal had no jurisdiction to make such order, suchdecisions of the Supremo Court shall be deemed to have been and to be' null and void ; and that such appeal or application by way of writ shallbe deemed to be an appeal or application which was not decided by theSupreme Court but to be an appeal or application made de novo to suchcourt on tho relevant date.
There are at the same time other portions of the impugned legislationwhich have been called in aid on behalf of the respondent as indicative ofa desire on tho part of the legislature to leave the eventual decision to bomade upon such application entirely to the discretion of tho SupremeCourt and to place exclusively within the provinco of His Lordship TheChief Justice tho practice and procedure to bo followed in entertaining,hearing and deciding such matters. Apart from these express statutoryprovisions reference has also been made on behalf of the respondent to thebackground to this legislation which indicates in no uncertain mannerthe desire on the part of the legislature to conserve to the applicants forrelief their right to relief which was in effect taken away from them inconsequence of the view of the law which prevailed at the time theirapplications were dismissed.
WEERAMANTRY, J.—Tuckers Ltd. v. Ceylon Mercantile Union
327
The present legislation is attended with these and other mitigatingfeatures to which I shall presently refer in greater detail, but the questionwhich has been pressed before us is the question whether those particularportionsof the legislation which seek to nullify decisions that have passedthe seal of this Court are not provisions which offend the principlesrelating to the exercise of judicial power.
Any examination of this question must necessarily commence with areference to the principle of separation of powers which in view of morethan one pronouncement of the Privy Council as well as of this Courtmust be taken to be a settled feature of our Constitution. It is notnecessary for me in view of the reference thoreto in the judgment of mybrother SLrimauc to make further reference to these decisions, suffice itto say that the priuciplo underlying the decision of this Court in Queen v.Lxyanage 1 received confirmation from the Privy Council not only inLiyanage v. The Queen 2 but also in Kariapper v. Wijesinghe. 3 So also inMoosajees Ltd. v. P.0. Fernando* a Bench of five Judges of this Court, inlidding that the separate judicial power of the State which is vested inthe judicature under the Constitution cannot be usurped or infringed bythe executive or the legislature, proceeded on the basis that the principleof separation of powers was recognised in thejCeylon(Constitution) Order -in-Council. I need say no more on thi3 matter than that I respectfullyassociate myself with the observations of my brother Sirimane that thisquestion is now beyond controversy.
Our Constitution, as has been observed before,s commits legislativepower to the legislature but does not itself commit judicial power to the .judiciary. Bather, it recognises the judiciary as being a body alreadyvested with judicial power, whose functions the Constitution leavesunimpaired and intact. These powers derive from the Charter of 1833and succeeding documents, and whatever power was thereby committedto the Courts remains vested in them. As the Privy Council observed ofcertain sections of our Constitution, “ they are wholly appropriate in aConstitution which intends that judicial power shall be vested only in thejudicature. They would be inappropriate in a Constitution by which itwas intended that judicial power should be shared by the executive or thelegislature. Tho Constitution’s silence as to the vesting of judicial poweris consistent with its remaining, whero it had lain for more than a century,in t-he hands of the judicature. It is not consistent with any intentionthat henceforth it should pass to, or be shared by, the executive or thelegislature The Privy Council thought fit to reiterate this statementof the law in Kariapper v. Wijesinghe.7
Since, then, an examination of judicial power as it lay vested at a timeanterior to tho Order in Council, assumes some relevance, it may not beout of place to refer to a significant indication of the care with which
1 {1962) 64 X. L. It. 313.1 (1967) 70 X. L. R. 49.
* (1965) 63 X. L. R. 265.* (1966) 6S X. L. R. 414.
f Vide Liyannge v. The Qcet-n (1965) 68 X. I*. R. 265 P- C.
• Liyanago v. Tho Quoon (1965) 68 A • L. R. at 2S2.
’ (1967) 70 X. L. R. at S3.
•V28WEERAMANTRY, J.—Tuckers lAd. r. Ceylon Mercantile Union
our courts were, even at the earliest stage of their history, kept separatofrom tho other organs of government. Such an indication appears inthe Instructions to Governor Sir Wilmot Horton accompanying thoCharter of Justice of 1S33, where tho Governor is strictly enjoined bothas head of the Executivo Government and as exercising legislativeauthority in Ceylon to “rigidly adhere to the rules by which the Charterseparates the functions of the Judges from your own.”.1
It is in the context of a Constitution dealing separately with theexecutive, the legislative and t he judicial powers, and of a judicial powerantedating tho Constitution and expressly preserved by it, that wo mustexamine section 29 (l) of the Order-in-Council by which legislativepower is granted to Parliament. Tt Mould not be correct to interpretthis section in isolation as though it had existed independently, but itwould bo necessary to view it as being a section conferring legislativepower on a department of Government in a Constitution recognisingthe principle of separation of powers and providing separately for thejudicial and the executive branches. In this context section 29 wouldappear to confer oh Parliament a power of a legislative nature as opposedto powers of a judicial and executive nature.
Now tho doctrine of separation of powers is based on the generalprinciple of separation of the executive, the judicial and the legislativelimbs of State power, but beyond this general principle it is not possibleto work out a set of details relating to its application which would betrue of every Constitution. While the general theory of separation isno doubt settled, tho exact content of the doctrine may vary in itsapplication in different Constitutions, and there may be particular instancesof exercise of power which are so finely poised on tho border betweenthe different departments of State power that they may in one Constitu-tion be interpreted as belonging to ono department and in anotherConstitution as belonging to another.
As Paton observes * “it is extraordinarily difficult to define preciselyeach particular power ” and again 3 “tho major juristic difficulty is todiscover any clear definitions of the legislative, administrative, andjudicial process which can be related to the functioning of actual states.Many of the suggested tests break down under critical analysis”
Consequently where there arises for determination tho question whethera particular exercise of State power is an exercise of legislative or judicialpower, it may bo unsafe to view as true of one Constitution what hasbeen judicially interpreted as being true of another. It follows thatmany of the decisions of tho American courts, tied up as they aro withtho particular features of tho Constitution in respect of which they M eredecided, aro not necessarily applicable to oir Constitution. I wouldtherefore be hesitant indeed before applying to our Constitution decisions
1 Coltbrookc—Cameron Papers, cd. Dr, O. C. Mend is, vol, J, p, 372.
'* Jurisprudence, 2nd ed. p. 262.
» ibid. '
WEERAMANTRY, J.—Tuckers Ltd. v. Ceylon Mercantile Union
329
of the.American Supreme Court relating to the question where a givenexercise of power falls within the province of one department ofState activity or another. Such decisions, except in so far as theyserve to explain and underline the broad fundamentals of the doctrineof separation irrespective of the particular Constitution which Is underexamination arc at best uncertain guides.
As Patanjali Sastri, J. observed of the Indian Constitution which incertain respects can in fact be said to have been based on the Americanmodel, “ this is far from making the principle of separation of powers asinterpreted by the American Courts an essential part of the IndianConstitution ”.1
It seems to me that this approach is all the more essential when thequestion relating to separation arises under a Constitution such as ourswhere there is no specific mention of separation of powers but the doctrineis a matter of inference from the framework and other features of theConstitution.
There seems no alternative therefore but to view this question uponan interpretation of our own Constitution itself together with suchassistance as we may drive from any general observations on the separationof powers contained in decisions drawn from other jurisdictions.
Among the aids in determining the question whether a particularfunction is executive or judicial are the tests propounded by Dean RoscoePound and by Justice Holmes, both of which have been referred to by thisCourt in The Queen v. Liycniage2. Dean Roscoe Pound used the historicaltest in doubtful cases to ask whether at the time the Constitution wasadopted the power in question was exercised by Parliament or by theJudges and "unless analysis compels us to say in a given case that thereis a historical anomaly we are guided chiefly by the historical criterion”.Holmes, J. in Prentice v. Atlantic Coast Line Company3 observes that“ the nature of the final Act determines the nature of tho previousinquiry.”
Adopting cither of these tests in tho context of our country, it wouldappear that had the provision nullifying decrees of this Court stood byitself, tho reversal of court decrees is a function or power historicallyexercised by the judiciary alone and aimed at an end which is judicialin its very essence and nature. Historically tho power of reversal of judicialdecisions has always been in the Courts and functionally the particularportion of the impugned legislation to which I am now directing myattention, viewed by itself, has this same effect.
I shall, without examining this aspect of the matter further, proceed,on the assumption that the particular impugned provision, consideredby itself constitutes an exercise of the judicial function, to examine
1 Gopoton's Case I960 S. C. R- S3 ; see also Seervai Constitutional Law oj India,
pp. 147-3.
* (1962) 64 N. L. R. 313 at 356.
(1903) 211 U. S. 210.
330
WISER AM ANTRY, J.—Tuckers Ltd. v. Ceylon Mercantile Union
the effect of the co-existence along with that provision of the mitigatingfeatures to which I have already referred. I have earlier briefly indicatedwhat these features are and that there are no directions whatsoever by thelegislature controlling in any way the full and complete discretion ofthis court in regard to the procedure to bo followed and the actual contentof its eventual order.
There is moreover the background to this legislation which, were it amatter which this court is entitled to take into consideration, would havea profound bearing on the question whether there is here a provisionin fact aimed at an interference with the judicial power.
Now on this question the view has been expressed on more than oneoccasion that the reasons or motives which actuated tho legislature inpassing the impugned legislation are not for this court to scrutinise.As Sir Owen Dixon of the Australian High Court observed in a- speechon his appointment, cited with approval by Sansoni C.J. in Kariapper v.Wijesinghe1 “ The Court’s sole function is to interpret a Constitutionaldescription of power or restraint upon power and say whether a givenmeasure falls on one side of a line consequently drawn or on the other,and it has nothing whatever to do with tho merits and demerits of themeasure… .There is no safer guide to judicial decisions in great conflictsthan a strict and complete legalism ”. I should myself have been inclinedto this view but that there are dicta of the highest authority which suggestat the same time that a court before which legislation is impugned wouldbe entitled to look at the background to legislation, including WhitePapers and other matters extraneous to the legislation itself, or in otherwords to look at the general legislative scheme. To what extent thisprinciple conflicts with the earlier principle to which I have referred, itis not necessary to examine, for the judicial pronouncements on the latterprinciple are of our highest tribunal and of so clear a nature that it wouldbe legitimate for a court to have regard to such matters..
I refer in particular to the pronouncements of their Lordships of thePrivy Council in Liyanage v. The Queen 2. There the Privy Council havingtaken into account the contents of the White Paper which contained adetailed narrative of the events leading up to the Act in question, arrivedat the conclusion that the pith and substance of the Acts was a particularlegislative plan. Their Lordships went on to make their observationson “ the true nature and purpose of these enactments ” and to statewhat in their Lordships’ view was the ft aim ” of the legislation. Soalso in Kodakan Pillai v. Mudannayake 3 it was observed by the PrivyCouncil that it was common ground between tho parties, and in theirLordships’ opinion the correct view, that judicial notice ought to betaken of such matters as the reports of Parliamentary Commissions andof such other facts as must be assumed to have been within the contem-plation of the Legislature when the Acts in question were passed. LordOaksey, in delivering the opinion of the Board, said that if there was a1 (1966) 68 N. L. R. 529 at 537-8.* (1965) 68 N. I*. R. at 284.
« (1953) 54 If. L. R. 433. …
WEERAMANTRY, J.—Tucker» Ltd. v. Ceylon Mercantile Union
331
legislative plan, theplanmustbe looked at as a whole, and that lookingat the plan as a whole it was evident to their Lordships that thelegislature did not intend to prevent Indian Tamils from attainingcitizenship provided they were sufficiently connected with the Island.He further observed that the question for decision in all these cases is inreality the same, " namely, what is the pith and substance as it hasbeen called or what is the true character of the legislation which ischallenged ”, To the same effect Isaacs J. in Federal Commissioner ojTaxation v. Munroe1 observed “the whole relevant legislation must, insuch a case, be looked to in order to pronounce upon the questionas to which category the particular function belongs to ’’.
Since then it would appear to be legitimate to have regard to theentirety of the legislation as well as to the plan of the legislation concerned,and the combination of circumstances which gave rise to it, this Courtwould not be able to view the particular impugned provision in isolation.It would have to consider both the totality of the legislation in questionand its background.
When onco tho view is taken that the background to the legislationmay be considered, the whole complexion of tho matter is considerablyaltered, for it was basically with a view to conserving the citizen’s right ofrecourse to tho courts and not to take it away that this legislation wasenacted. It shows indeed a respect for the right of the citizen to approachthe court for relief and a concern that by an unfortunate combination ofcircumstances this right has in effect been taken away in numerous cases.It was no fault of the litigants concerned that they found themselveswithout a right to recourse to this court upon the application of a viewof the law which was later reversed.- Though the particular portion ofthe enactment which nullifies the decisions of this court may appear to“ speak like a Court order ” tho totality of the legislative provision doesnot have this quality, for there is no finality about tho matter concerned,and no determination by the legislature of the eventual result, but areopening of the matter without any of the finality which a “ court order ”would have. If I may quote as applicable here certain observations ofthis court in Anthony Naide v. Ceylon Tea Plantations Co. Ltd* which arepertinent to this case “ There was here no intention to legislate adhominem ; there was no White Paper enumerating the names of landlordsor tenants involved in pending actions, against or in favour of whomParliament was invited to exercise legislative power; there was nodirection or restriction affecting ‘ the discretion or judgment of theJudiciary in specific proceedings. ’ — 68 N. L. B. at 284. Whereas theCriminal Law Acts of 1962 were construed to be in substance provisionsdesigned to dictate to the Court the manner of exercise of its discretionor the formation of its judgment, there is no such dictation involved inSection 4 of the Act of 1966 now under consideration ’’.It may likewisebe observed of the present legislation that it contains no direction tothe courts to apply the law in a particular way nor any compulsion
of^any kind.
1 (1926) 38 C. L. B. at 176.
(1966) 68 N. L. B. 658 at 569..
332
WEERAMANTRY, J.—Tuckers Lui. t>. Ceylon Mercantile Union
In ascertaining the "pith and substance ” of this legislation and alsothe " legislative plan ” underl ing it, it would also perhaps be helpful totake into account the long title of the Act which describes it as " An Actto provide for the removal of certain difficulties in the settlement ofIndustrial Disputes and other matters under the Industrial Disputes Actwhich have arisen in consequence of decisions made by the SupremeCourt and decisions made on appeal to Her Majesty in Council, and toprovide for matters connected therewith or incidental thereto. ”
All these considerations, no one of which is conclusive but all of whichcumulatively are of considerable weight, tend to creato doubt in regardto the view indicated earlier relating to the effect of the impugnodprovision taken in isolation. Viewing the legislation in this broader way,one is thus left at least in a state of doubt as to whether this particularenactment was not aimed at conserving the jurisdiction of the courtsrather than at nullifying court decrees. It seems reasonably possible toview the legislation as being aimed at proserving to tho citizen the rightto obtain relief from the courts, of which right ho was in consequence of aprevailing view of the law, deprived. One cannot say with assurancothat the only view reasonably possible is that the impugned legislationencroaches on the judicial power.
In this resulting position of doubt there comes into play another princi-ple of accepted authority in constitutional matters, whero the constitu-tional validity of statutes is attacked. This principle has perhaps beenbest set out by Isaacs, J. in Federal Commissioner of Taxation v. Munroe *.Isaacs, J. there gave expression to the very great responsibility lyingupon a court of law examining the validity of legislation impugned asoffending the fundamental law of the Constitution. Isaacs, J. went on toobserve : “ It is always a serious and responsible duty to declare invalid,regardless of consequences, what tho national Parliament, representingthe whole people of Australia, has considered necessary or desirable fortho public welfare. The Court charged with the guardianship of thofundamental law of tho Constitution may find that duty inescapable.Approaching the challenged legislation with a mind judicially clear of anydoubt as to its propriety or expediency—as we must, in order that wo maynot ourselves transgress the Constitution or obscure the issue before us—the question is : ‘ Has Parliament, on the true construct ion of the enact-ment, misunderstood and gone beyond its constitutional powers?'. Itis a received canon of judicial construction to apply in cases of this kindwith more than ordinary anxiety the maxim Ut res magis valeat quampereat. Nullification of enactments and confusion of public business aronot lightly to be introduced. Unloss, therefore, it becomes clear beyondreasonable doubt that the legislation in question transgresses the limitslaid down by the organic law of the Constitution, it must be allowed tostand as the true expression of the national will. Construction of anenactment is ascertaining tho intention of the legislature from the wordsit has used in the circumstances, on the occasion and in tho collocation ithas used them/ There is always an initial presumption that Parliament'' *(1926) 38 6. L. R. 153 <U180.-~'*'
Qvnatcardene v. District Revenue Officer, Xfellgama Kor ate
&&did not intend to pass beyond constitutional bounds. If the languageof a statute is not so intractable as to bo incapablo of being consistentwith this presumption, tho presumption should prevail. That is theprinciple upon which the Privy Council acted in Macleod v. Attorney -General for New South Wales1. It is tho principle which the SupremeCourt of tho United States has applied, in an unbroken line of decisions,from Marshall C.J. to tho present day 3. It is tho rule of this Courts.These considerations I proceed to apply to tho present case.”
By tho rule so formulated the answer to the problem before us is clearand whatever reasonable doubt one may feel in regard to this legislationmust bo^resolved in its favour. I would therefore uphold the impugnedlegislation.
I would wish to stress finally that each case where legislation isimpugned on grounds such as theso must be considered upon its ownparticular facts and circumstances and that no general rule can beformulated by which to determine whether tho context in which anoffending provision appears reveals circumstances sufficiently compellingto act as a countervailing factor.
I express no views on the other interesting questions of law that werediscussed.
For the* reasons I have set out I concur in the order proposed by mybrother Sirimane.
Preliminary objection overruled.