045-NLR-NLR-V-62-V.-MANICKAM-Petitioner-and-THE-PERMANENT-SECRETARY-MINISTRY-OF-DEFENCE-AND-EX.pdf
Manickam v. The Permanent Secretary, Ministry of
Defence and External Affairs
,.2Q4
i960Present: T. S. Fernando, J.
V. MANTCKAM, Petitioner, an. THE PERMANENT SECRETARY,MINISTRY OF DEFENCE AND EXTERNAL AFFAIRS,
Respondent
S. G. 57—In the matter of an application for the issue of mandates in thenature of a Writ of Certiorari and a Writ of Mandamus under Section 42
of the Courts Ordinance
Ditizenship by registration-—-Registration of spouse of citizen of CeylonClaim dis-
allowed by prescribed officer—Error of law on face of record—Certiorari—Supplementary evidence by means of affidavit—-Admissibility—CitizenshipAct, No. 18 of 194S, s. 11A.
The following letter sent by a prescribed officer was received by aperson who sought under section 11A of the Citizenship Act to be registered asa citizen of Ceylon on the ground that he was the spouse of a citizen of Ceylonby descent :—
“ With reference to your application for Ceylon Citizenship made under•section 11A of the Citizenship Act No. 18 of 1948 and the inquiry held in this■connection, in this office, on 11th September 1959, X have the honour toinform you that your application for Ceylon Citizenship is disallowed.
J have to point out to you that you got married during your illegal overstayand clearly -with the intention of securing Ceylon citizenship and circum-venting Visa Regulations.
You are hereby warned that if you fail to leave Ceylon within one monthfrom the date of this letter removal action against you will be unavoidable.”
Held, that the letter was a speaking order, with the ground in support of itappearing thereon. The ground specified in it was bad in law and was not onewhich could legitimately form a justification for the refusal to send thepetitioner’s application to the Minister. The order was therefore liable to becjuasbed by way of certiorari on the ground of error of law on the face of therecord.
Held further, (i) that an affidavit supplementing the reasons already appearingon the order should not be entertained.
(ii) that a prescribed officer, in deciding whether or not to take the actiondescribed in section 11A (3) of the Citizenship Act, acts judicially and is, there-fore, amenable to a writ of certiorari.
PPLIOATION for -writs of certiorari and mandamus against thePermanent Secretary, Ministry of Defence and External Affairs.
kC. Ranganathan, with S. Sharvananda, for the petitioner.
R. C. F. Jayaratne, Crown Counsel, with H. L. de Silva, Crown Counsel,for the respondent.
Cur. adv. vult.
T. S. FERNANDO, «T.—Manicham v. The, Permanent Secretary,
Ministry of Defence and External A-ffairs
205
August 10, 1960. T. S. Fernando, J.—
By the Citizenship (Amendment) Act, No. 13 of 1955, Parliamentintroduced a new Section 11a to the Citizenship Act, No. 18 of 1948,laying down the conditions under which a spouse, or the widow orwidower, of a citizen of Ceylon by descent or registration may be regis-tered as a citizen of Ceylon. As required by sub-section (2) of thisnew Section, the petitioner who claimed registration as a citizen sentan application in the prescribed form to the respondent who was one ofthe prescribed officers, the other being the Assistant Secretary of thesame Ministry—vide Regulation 14a made under Section 25 of theCitizenship Act and published in Gazette No. 10,832 of August 31, 1955.This application reached the respondent on 4th November 195S and acopy thereof has been annexed to the petition to this Court and markedXI.
Sub-section (3) of Section 11a imposes on the prescribed officer a duty-to send the application to the Minister if he is satisfied that the appli-cant has the following qualifications :—
(а)that the applicant is of full age and of sound mind ;
(б)that the applicant is, and intends to continue to be, ordinarily
resident in Ceylon ;
that the applicant has been resident in Ceylon throughout a period
of one year immediately preceding the date of the application ;and
that the applicant is the spouse, or the widow or widower, of a
citizen of Ceylon by descent or registration.
'To the petitioner’s application (of which XI is a copy) ere attached the: folio wing documents :—
a certificate of his marriage on 24th June 1958 to a citizen of
Ceylon ;
a certificate of birth of his wife ;
a certificate of the marriage of his wife’s parents ;
a certificate of birth of his son Balasubramaniam, born on 31st
December 1957.
lit may be mentioned here that in the last named document, viz. the
certificate of birth of the petitioner’s son, the child’s parents are described-as married. At the date of the registration (3rd January 1958) this
description was incorrect as the marriage took place only on 24th June,1958. t
.An inquiry into the petitioner’s application for registration appearsto-have been held on 11th September 1959 by a prescribed officer, the.then Assistant Secretary of the Ministry, Mr. Tennekoon. Thereafter
206
T. S. FERNANDO, J-—Manickam v. The Permanent Secretary,
Ministry of Defence and External Affairs
the petitioner received .the document X6 dated 16th December 1959“the text of which is reproduced below :—
“ With reference to your application for Ceylon Citizenship madeunder Section 11a of the Ceylon Citizenship Act, No. 18 of 1948 andthe inquiry held in this connection, in this office, on 11th September1959, I have the honour to inform you that your application for CeylonCitizenship is disallowed.
X have to point out to you that you got married during your illegaloverstay and clearly with the intention of securing Ceylon citizenship-and circumventing Visa Regulations.
You are hereby warned that if you fail to leave Ceylon within one-month from the date of this letter removal action against you willbe unavoidable.
I am, Sir,
Your obedient servant,
(Initialled)(sgd.) H. E. Tennekoon,
Staff Assistantfor Permanent Secretary. ”
The petitioner contends that the order contained in X6 has been madewithout authority and is ultra vires, the only authority competent in lawto disallow an application for registration under Section 11A being theMinister himself. It has at no time been submitted that the petitioner’sapplication was refused by the Minister acting under sub-section (4) ofSection 11A which enacts that “ the Minister may refuse an applicationsent to him under sub-section (3) if he is satisfied that it is not in the publicinterest to grant the application ”. On the other hand, it was specificallystated by learned Counsel for the respondent at the argument before methat in spite of the use of the expression “ disallowed ” appearing in X6,this document served merely as information to the petitioner that theprescribed officer had decided not to send the application to the Ministerfor the reason that he was not satisfied that the petitioner had thenecessary qualifications.
It may be mentioned that in regard to the qualifications necessary toobtain registration it is not doubted that the petitioner is of full age andof sound mind or that he is the spouse of a citizen of Ceylon by descent.On behalf of the respondent it has been pointed out that the prescribedofficer need send the application to the Minister only where the formeris satisfied that the applicant has the necessary qualifications, and an<affidavit made by Mr. Tennekoon on 17th May 1960—on which date heheld the office of Permanent Secretary of the Ministry—declares thatafter inquiry into the petitioner’s application for registration he was notsatisfied (a) that the petitioner was and intended to continue to be ordi-narily resident in Ceylon or (b) that he had been resident in Ceylon through-out a period of one year immediately preceding the date of his applicationfor registration. The notes of such inquiry as has been held by the pres-cribed officer have not been placed before me. The contents of this
T. S. FERNANDO, T.—ManicJcam v. The Permanent Secretary,
Ministry of Defence and External Affairs
207
affidavit have been criticized by petitioner’s Counsel as being an after-thought on the part of the prescribed officer. In support of that criticism,Counsel invited me to examine X6, the order of disallowance of the appli-cation. He pointed out that the only reason set out in X6 for the dis-allowance is that contained in paragraph 2 thereof, viz. that the petitionergot married dining his illegal overstay with the intention of securingCeylon citizenship and circumventing Visa Regulations. It is unfortunatethat X6 did not set out the reasons now to be found in the affidavit ofMr. Tennekoon. Counsel described X6 as a speaking order and submittedthat the only reason appearing in the order itself is bad in law and that theorder is liable to be quashed by way of certiorari bn the ground of errorof law on the face of the record.—(see R. v. Northumberland CompensationAppeal Tribunal x). Crown Counsel, on the other hand, submitted thatX6 is not a speaking order, and that the use of the expression “ disallowed ”therein meant no more than that the application did not reach the stagewhen it had to be sent to the Minister. In support of paragraph 2 of X6,Crown Counsel’s interpretation of that paragraph is that it is extraneousto the real reason for not sending the application to the Minister andwas intended merely as a warning to the applicant of the impending actionfor his removal. It does appear to me that X6 is couched in unfortunateterms. It purports to be a letter sent by the Permanent Secretary who,it is conceded, has not the power of refusal or disallowance. It indicatesalso that the inquiry was held by Mr. Tennekoon at a time when he wasAssistant Secretary and not the Permanent Secretary. If then it washe who decided not to forward the application to the Minister, and X6was merely a communication of that fact to the petitioner, X6 shouldhave been signed by Mr. Tennekoon as prescribed officer and not “ forPermanent Secretary ”.
Technical irregularities of this nature serve not merely to spotlightdefects of procedure but also to emphasize that in dealing with suchimportant matters as applications for citizenship the decisions on whichcan involve serious consequences to applicants that care which the publicare entitled to expect from the officers concerned has been wanting. Asit is, X6 is open to the objection either that the Permanent Secretary wasusurping a function entrusted to the Minister, if the former purported todisallow the application, or that he took action to withhold the appli-cation from being sent to the Minister -without satisfying himself that thepetitioner had not the necessary qualifications. On the other hand, if X6be considered as a reply to the petitioner by Mr. Tennekoon himself asprescribed officer, there is force in the contention that the affidavit ofMr. Tennekoon dated 17th May 1960, is apparently self-contradictoryinasmuch as in paragraph 3 thereof it is stated that he was not satisfiedafter inquiry that the petitioner had been resident in Ceylon throughout aperiod of one year immediately preceding the date of his application forregistration (i.e. during the period 4.11.57 to 3.11.58) while in paragraph2 it is stated that he was satisfied that the petitioner’s continued stay
1 (1S52) 1 A. E. R; at 122.
208
T. S. FERNANDO, J.—Manichain v. The Permanent Secretary,
Ministry of Defence and External Affairs
in Ceylon after 1956 was illegal. Moreover, as petitioner’s Counselsubmitted, if tbe decision contained in 1X6 was made by the PermanentSecretary, the affidavit of Mr. Tennekoon who was not the PermanentSecretary at the relevant date is of no value. I do not, however, needto consider the effect of this affidavit as, in my opinion, it is not permissibleby way of affidavit, for the respondent to supplement the reasons already-appearing on the order X6. If, therefore, this affidavit be kept out ofconsideration as being inadmissible for the pnrpose for which it was soughtto be utilised, one has to return to the examination of the order X6itself. Upon a fair construction of that document, it seems to me thatit is best described as a speaking order, with the ground in support of itappearing thereon. The ground specified in it is bad in law and is notone which can legitimately form a justification for the refusal to send theapplication to the Minister. In these circumstances, as I have earlier inthis judgment referred to the fact that it has not been doubted that thepetitioner is of full age and of sound mind or that he is the spouse of acitizen of Ceylon by descent, it remains onlj' to say that it must be assumedfor the purposes of the petition before me that the petitioner had alsothe qualifications (b) and (c) to which he had sworn in his application.
I may add that a prescribed officer in deciding whether or not to takethe action described in Section 11A (3) of the Act is performing a quasi-judicial function, but, even on an assumption that he is performingprimarily an administrative function, I am satisfied that in the course ofperforming that function he is required to act judicially in decidingwhether to send the application to or withhold it from the Minister.In these circumstances, the prescribed officer’s action is liable to berpiashed by way of certiorari.—(see R. v. Mancliester Legal AidCommittee 1.) I should add that learned Crown Counsel did not submitthat the remedy by way of certiorari did not lie in this case.
Even if the order X6 is not considered as a refusal of the applicationbut only as evidence of the decision of the respondent not to send theapplication to the Minister, that decision, having in my opinion beenreached for the reason appearing on X6 itself, error of law is shown onthe face of the record, and the decision has to be quashed by way of amandate in the nature of a writ of certiorari. As a result of the quashingof the order, it follows for the reasons already indicated by me that nogood cause for failing to send the application to the Minister exists. Therespondent must therefore be ordered by way of mandamus to send theapplication to the Minister for such action as he may deem fit to takeunder sub-section (4) of Section 11 A. The two orders indicated byme above are accordingly hereby made.
The petitioner -will be entitled to the costs of these proceedings.
Application allowed.
1 (1952) 1 A. E. R. at 489.