[PRIVY COUNCIL]

AND

ON APPEAL FROM THE SUPREME COURT OF CEYLON

Ceylon - Constitution - Legislation - Amendment of constitution - Act inconsistent with but not expressly amending constitution - Purported change of law - Imposition of civic disabilities on persons to whom Act applied - Member of Parliament unseated - Whether act of attainder or bill of pains and penalties - Whether usurpation of judicial or exercise of legislative power - "Amend or

repeal" - "Bill for ... amendment or repeal" - Whether constitution amended - Ceylon (Constitution) Order in Council, 1946 (Legislative Enactments of Ceylon, rev. 1956, vol. XI, c. 379), s. 29 (1) (4) - Imposition of Civic Disabilities (Special Provisions) Act, 1965 (No. 14 of 1965), ss. 7, 10.

Ceylon - Parliament - Jurisdiction - Whether able to assume and exercise judicial power in one law.

Ceylon - Supreme Court - Jurisdiction - Mandate in nature of writ of mandamus - Application by member of Parliament unseated by legislation - Whether procedure appropriate.

Statute - Construction - Conflicting statutes - Intention to be gathered from operation - Whether inconsistent law amends.

The Constitution of Ceylon, 1946, s. 29, provides:

"(1) Subject to the provisions of this Order, Parliament shall have power to make laws for the peace, order and good government of the Island. ...

(4) In the exercise of its powers under this section, Parliament may amend or repeal any of the provisions of this Order, or of any other Order of Her Majesty in Council in its application to the Island:

Provided that no Bill for the amendment or repeal of any of the provisions of this Order shall be presented for the Royal Assent unless it has endorsed on it a certificate under the hand of the Speaker that the number of votes cast in favour thereof in the House of Representatives amounted to not less than two-thirds of the whole number of Members of the House (including those not present)."

In 1960 a commission of inquiry constituted under section 2 of the Commissions of Inquiry Act, reported that allegations of bribery had been proved against some members of the Senate, House of Representatives or State Council of Ceylon, of whom the appellant was one. The appellant was elected to Parliament for five years in March 1965. The bill for the Imposition of Civic Disabilities (Special Provisions) Act, No. 14 of 1965 ("the Act"), when presented for the Royal Assent, had endorsed on it a certificate under the hand of the Speaker in accordance with the proviso to section 29 (4) of the Constitution of Ceylon. The Act came into operation on November 16, 1965; was not in form an express amendment of the Constitution; imposed civic disabilities, some for seven years, on persons to whom the Act applied, viz., persons, including the appellant, named in a Schedule to the Act in regard to whom the commission of inquiry report found allegations of bribery proved; provided by section 7 for the vacation on November 15, 1965, of the seat as a Member of Parliament of, inter alios, the appellant on a ground not to be found in the Constitution before the Act came into force; and provided by section 10 that, in the event of inconsistency with existing law, the Act should prevail.

The appellant, asserting his continued membership of Parliament, applied to the Supreme Court for a mandate in the nature of a writ of mandamus requiring clerks of the House of Representatives to recognise him and pay him his remuneration and

allowances as a Member of Parliament. The appellant contended that the Act was invalid in that it was inconsistent with the Constitution and was not an effective amendment, on the grounds, inter alia, that it was an Act of Attainder or Bill of Pains and Penalties, and was a usurpation of judicial power not an exercise of legislative power. The Supreme Court refused the application. On appeal, there being no controversy that the Constitution committed judicial power to the courts to the exclusion of Parliament:-

Held, (1) that the Act was not an act of attainder or a bill of pains and penalties, because it contained no declaration of guilt, and the disabilities imposed did not have the character of punishment for guilt (post, p. 734B-C), but were to keep public life clean for the public good (post, p. 736C-E), and not for the punishment of the member whose seat was vacated (post, p. 736F).

Dicta of Frankfurter J. in United States v. Lovett (1946) 328 U.S. 303; Reg. v. Richards, Ex parte Fitzpatrick and Browne (1954) 92 C.L.R. 157; and Reg. v. White, Ex parte Byrnes (1963) 109 C.L.R. 665, considered.

(2) That the Act was an exercise of legislative power and not the usurpation of judicial power, for the Act purported to change the law, provided in terms that in the event of inconsistency with the existing law the Act should prevail (post, p. 738D), was subject to repeal or amendment, did not declare guilt or impose punishment, its terms showed that reference to reports not forming part of the Act was or might be necessary in its application, did Dot speak like a court order, and, although its operation was made to depend on past events, it was prospective in imposing disabilities from the date of its commencement for the periods defined (post, p. 738D-G).

(3) That the intention of a statute was to be gathered from its operation, and, as a general rule, an inconsistent law amended (post, pp. 741D - 742F); that, since the Constitution of Ceylon was a controlled constitution and the Act was an inconsistent law, the Act was to be regarded as amending the Constitution unless some provision denying the Act constitutional effect was to be found in the constitutional restrictions imposed on the power of amendment (post, p. 742E-F); that, apart from the proviso of section 29 (4), there was no reason for not construing the words "amend or repeal" in section 29 (4) as extending to amendment or repeal by inconsistent law (post, pp. 742G - 743C); and that a bill, which when passed became an amending Act, fell within the description "bill for the amendment or repeal" of the Constitution within the proviso (post, p. 743C-E). So that, accordingly, the Act amended the Constitution, and the appeal should be dismissed.

Dicta of Lord Birkenhead L.C. in McCawley v. The King [1920] A.C. 691, 709; 36 T.L.R. 387, P.C. applied.

Bribery Commissioners v. Ranasinghe [1965] A.C. 172; [1964] 2 W.L.R. 1301; [1964] 2 All E.R. 785, P.C., considered.

Per curiam. The procedure adopted to bring the validity of the Act before the Supreme Court was not appropriate (post, p. 745A).

Quaere. Whether the Parliament of Ceylon can, by a law passed in accordance with section, 29 (4) proviso of the Constitution, both assume judicial power and exercise it in the one law (post, p. 744G).

Judgment of the Supreme Court of Ceylon affirmed.

APPEAL (No. 38 of 1966) from a judgment and decree (May 9, 1966) of the Supreme Court of Ceylon (Sansoni C.J. and Silva J.) made in accordance with its order (April 30, 1966) refusing the application of the appellant, Mohamed Samsudeen Kariapper, for the grant and issue of a mandate in the nature of writ of mandamus to compel the respondents, S. S. Wijesinha, clerk to the House of Representatives, and S. N. Seneviratne, assistant clerk to the House of Representatives, to recognise the appellant as a member of Parliament representing the Kalmunai electoral district in the House of Representatives, and to pay him his salary and allowances and other benefits to which he was lawfully entitled as such member of Parliament.

The facts summarised in the headnote are stated in the judgment.

1967. May 24, 25, 30, 31; June 1. E. F. N. Gratiaen Q.C.,Louis Blom-Cooper, M. I. Hamavi Hanifa and Mark Fernando (Ceylon) for the appellant. As to the constitutional issue; first: it is common ground that the appellant was the lawfully elected member of Parliament for the Kalmunai Electoral District until November 15, 1965, and was not subject to any of the disqualifications within section 13 (3) of the Constitution. The issue is whether an Act purporting to vacate the seats and offices of six named individuals, including the appellant, and purporting to disqualify and to impose a number of disabilities on them, is a valid law. The Governor-General appointed a commission on September 11, 1959, to inquire into allegations of bribery against present and past members of Parliament. On December 16, 1960, the commission reported to the Governor-General that the six individuals named in the schedule to the impugned Act had taken bribes. No action was taken by the executive or legislature, and no proceedings were instituted in any court or tribunal vested with jurisdiction, until five years later when Parliament adopted the findings of the commission and enacted the impugned Act. The findings of the commission had no legal consequences. The appellant

lant had no opportunity of obtaining redress by way of certiorari or otherwise for any complaint regarding the manner in which the commission had carried out its investigations: Hadjiar v. Umma.¹

Secondly: the impugned Act was passed in November, 1965, before the decision in Liyanage v. The Queen² was known. Parliament cannot impose a punishment for the alleged commission of a crime. There is a separation of powers under the Constitution. Accordingly, bills of pains and penalties are ultra vires: Liyanage v. The Queen.²

Thirdly: the impugned Act is a "privilegium" and not a "law." Its operation is spent upon the individuals named in the Schedule and has no relation to the community in general or to any future offences of a like character: Wharton's Law Lexicon, 14th ed. (1955), p. 803; Voet's Commentary on the Pandects, Bk. 1, Title 3, s. 5 (Gane's translation Vol. 1, 34, 35).

Fourthly: the pith and substance of the impugned Act is to impose a punishment of disability for assumed guilt without trial by a competent court. If the impugned Act had provided that if any body is found guilty of accepting bribes they shall be punished by suffering civic disabilities, then that might be general legislation in the exercise of legislative power. An Act exclusively confined to named persons is an act of attainder. Ex post facto legislation, which has an element of punishment, and an act of attainder are on the same footing. There are no limits to the true exercise of true legislative power, but acts of attainder are judicial in character and not legislative. There is a prohibition against an act of attainder. The impugned Act is an enactment by a legislative body without judicial power, imposing a punishment on named individuals. The American cases lay down the principle that there is an express prohibition by necessary implication included in the theory of separation of powers, and therefore the power to legislate does not give the power to judge and punish, which is a power exclusively given to the judiciary: Calder v. Bull³; Cummings v. State of Missouri⁴; Ex parte Garland⁵; United States v. Lovett⁶; United States v. Brown.⁷ In Liyanage v. The Queen⁸ the board observed that in consequence of the separation of powers embodied in the Constitution, Parliament cannot pass an act of attainder.

1 (1966) 68 N.L.R. 409, 411.

2 [1967] 1 A.C. 259; [1966] 2 W.L.R. 682; [1966] 1 All E.R. 650, P.C.

3 (1798) 3 U.S. 386, 389, 398.

4 (1886) 71 U.S. 277, 319, 320, 321, 323.

5 (1886) 71 U.S. 333, 377, 379, 381, 386, 390.

6 (1946) 328 U.S. 303, 315-317, 321-324.

7 (1964) 381 U.S. 437, 441-443; 445, 448, 456, 475.

8 [1967] 1 A.C. 259.

Fifthly: the impugned Act is an exercise of judical power or a usurpation of judicial power, and is therefore invalid, notwith-standing it obtained a two-thirds majority and the Speaker's certificate. As the Constitution gives Parliament only the legislative power, it can amend the Constitution in the exercise of its legislative power by complying with the provisions of the Constitution as to the prescribed manner of amendment, namely, the requisite majority and the Speaker's certificate, and by complying with the form of the bill of amendment, namely, a bill for the amendment of the Constitution. [Reference was made to Ceylon (Constitution) Amendment Acts, No. 29 of 1954, No. 35 of 1954, and No. 36 of 1954.] There is no provision in the Constitution for the Speaker's certificate to be endorsed on a bill which is not expressed to be a bill for the amendment of the Constitution. Where the Constitution is controlled, the court must look to the language of control and see that it is followed. Where Parliament has no judicial power under the Constitution, there must be a previous Act of express amendment giving Parliament the judicial power. Then only can Parliament exercise that judicial power. It is only after such an enactment has become law by receiving the Royal Assent that Parliament can proceed to exercise the judicial power.

Sixthly: in an uncontrolled constitution the later enactment will prevail over the earlier enactment. It is not a matter of amending or repealing the earlier enactment. In a controlled constitution a manifest usurpation of judicial power cannot be regarded as an implied amendment of the Constitution coupled with a simultaneous exercise of the judicial power conferred by such implied amendment: Imperial Hydropathic Hotel Co., Blackpool v. Hampson⁹; McCawley v. The King.¹⁰

Seventhly: if the impugned Act is not an exercise of judicial power, is it a valid amendment of sections 13 (3) (k) and 24 (1) (d) of the Constitution? Section 13 (3) (k) expressly provides for the disqualification for being elected or appointed as senator or member of the House of Representatives or for sitting or voting in the senate or the House of Representatives on the ground that during the preceding seven years he had been adjudged by a competent court or by a commission appointed with the approval of the Senate or the House of Representatives or by a committee thereof to have accepted a bribe. The commission of inquiry is not a "competent court" or "a commission appointed with the

9 (1882) 23 Ch.D. 1, 2, 4, 6, C.A.

10 [1920] A.C. 691.

approval of the Senate or the House of Representatives" or "a committee thereof" within the meaning of section 13 (3) (k). Section 24 (1) (d) provides for the vacation of the seat of a member of Parliament if he became subject to any of the disqualifications in section 13. At the time the commission of inquiry was appointed there was, and still is, provision for the appointment of a commission of inquiry under the Bribery Act, 1954, s. 32, to investigate just such allegations of bribery. Alternatively, a prosecution of the appellant could have been instituted in a court or tribunal vested with jurisdiction. The Bribery Act, 1954, s. 29, specifies the consequences of a finding of guilt by a commission or a conviction by a court or tribunal. The consequences are almost identical to the disabilities imposed by the impugned Act. When Parliament previously appointed a bribery commission, it passed an Act providing in advance the disabilities to attach to anyone reported by the commission as having taken bribes: De Mel v. M. W. H. de Silva.¹¹

Eighthly: section 29 (4) of the Constitution does not recognise an implied repeal by mere repugnant legislation. Section 29 (1) gives uncontrolled legislative power in a restricted field. In regard to the Constitution itself, it is only an Act "for" the amendment of the Constitution that can validly amend the Constitution. "For" indicates that it must be a conscious exercise of the power of amendment: McCawley v. The King.¹²

Lastly: by sections 27 (1) and (2) of the Constitution and the Parliament (Powers and Privileges) Act, No. 21 of 1953, passed in the exercise of a power given by the Constitution, the two houses of the Ceylon Parliament do not possess the same powers or privileges as the English House of Commons, though they enjoy the same immunities as the House of Commons (section 7). In the case of allegations of bribery of members, neither House has jurisdiction. That jurisdiction vests only in the Supreme Court (section 22 and the Schedule). Each House has jurisdiction only in respect of the limited category of breaches of privilege set out in Part B of the Schedule (section 22 (3)). Its power of punishment is expressly and unambiguously limited to admonition and removal from the House, and the suspension of members and prohibition of strangers from entering the House or its precincts for limited periods of time (sections 28 and 32). Reg. v. Richards, Ex parte Fitzpatrick and Browne,¹³ is irrelevant to the present case because

11 (1949) 51 N.L.R. 105.

12 [1920] A.C. 691; 36 T.L.R. 387, P.C.

13 (1954) 92 C.L.R. 157, 167.

the Australian Constitution conferred the same privileges as the English House of Commons enjoyed.

As to the procedural issue of mandamus, the writ lies against the respondents because first: by virtue of the Constitution and the independence and dignity of Parliament, the respondents are not public officers or servants or agents of the Crown but are servants of the House of Representatives and can only act as such, and are answerable to the House alone.

Secondly: the annual Appropriation Act by which Parliament votes money for the payment of salaries and allowances for members of Parliament imposes a public and statutory duty upon the respondents to make the payments to members of Parliament. It is not a Money Bill. The duty to pay is not a matter of discretion resting with the Crown.

Thirdly: the respondents by virtue of their position owe a public and statutory duty to each member of Parliament to pay the salaries and allowances due to him, at least when the money voted by Parliament comes into their hands.

Fourthly: The salary of a member of Parliament is different from that of a civil servant in that there is in the case of a member of Parliament the right to the salary arising out of the Constitution. It is not remuneration due from the Crown under a contract with the Crown. When Parliament passes the necessary head of expenditure, the treasury as a department of the Crown would make the moneys available to the Clerk of the House. Once the moneys are made available to the clerk, he holds the moneys in his capacity as clerk and is therefore under a public and statutory duty to pay members' salaries.

Fifthly: the principle that the writ of mandamus does not lie against a servant of the Crown does not operate to protect servants of the Crown who refuse to comply with public and statutory duties, but is limited to cases where the writ would have the effect of compelling the Crown in a field in which the prerogative operates.

Lastly: the appellant is entitled in any event to a mandate in the nature of a writ of mandamus compelling the respondents to recognise him as the member of Parliament representing the Kalumnai Electoral District who has not vacated the seat for any disqualification. [Reference was made to Ceylon Constitution (Amendment) Act, 1964, Legislative Enactments of Ceylon, 1956, vol. XI cap. 379; Ceylon (Constitution) Order in Council, 1946, ss. 31, 66, 75; (United Kingdom) Appropriation Act, 1964,

Schedule B; Civil Procedure Code, Vol. IV cap. 101, ss. 217, 456, 462; and Reg. v. Lords Commissioners of the Treasury.¹⁴]

Louis Blom-Cooper followed.

Ralph Millner Q.C. and R. K. Handoo for the respondents. As to the constitutional issue, first: the impugned Act is on its face the exercise of the power given by section 29 (1), namely the exercise of the power to make laws for "peace, order and good government." Those words denote the full plenitude of legislative power, or "unrestricted power": Ibralebbe v. The Queen¹⁵ and Cobb & Co., Ltd. v. Kropp.¹⁶ Section 29 (1) confers full legislative power upon Parliament subject only "to the provisions of this order" that is, the Constitution. Section 29 (4) indicates that the power conferred by subsection (1) extends to amending or repealing "any of the provisions of this order": Bribery Commissioner v. Ranasinghe.¹⁷ The "power to make laws" in subsection (1) refers to all laws, general laws, laws ad hominem, laws ex post facto, privilegia. It includes an act of attainder and bill of divorcement Anything that goes through Parliament is "law." The Constitution grants to the Parliament of Ceylon all the powers of the United Kingdom Parliament. This power is always subject to any fetters expressed in the Constitution, otherwise subsection (1) covers everything.

Secondly: the impugned Act is prima facie an exercise of power within the first part of subsection (4) of section 29. The Act is covered by "Parliament may amend or repeal any of the provisions of this order, or of any other order of Her Majesty in Council in its application to the Island." The plenitude of power given by subsection (1) is subject to the provisions of "this order," and that points to subsection (4) and to the proviso. Subsection (4) gives Parliament undoubted power to "amend or repeal" any of the provisions of this order. The general statement of law in McCawley v. The King¹⁸ is applicable to every law passed by Parliament. Subsection (4) is descriptive of the power that is given by subsection (1).

Thirdly: there are no words in the proviso to section 29 (4) and no words properly to be implied in the first part of subsection (4) which have the effect of requiring an amending Act to state in express terms that it is intended to amend the Constitution. The principle in McCawley v. The King¹⁹ is not in any way qualified by the restriction of its application to uncontrolled constitutions.

14 (1872) L.R. 7 Q.B. 387.

15 [1964] A.C. 900, 923, 924.

16 [1967] 1 A.C. 141, 151, 154.

17 [1965] A.C. 172, 196.

18 [1920] A.C. 691, 709.

19 Ibid. 703, 704, 709.

Lord Birkenhead L.C. quoted with approval the opinion of the law officers on the general power. It is implicit in the idea of an implied amendment. One must look to the effect of the impugned Act and ask the question: what does it do? The answer is that it amends the Constitution. It is a fundamental principle that it is from its operation that the intention of a statute is to be gathered. It must be presumed that a legislative body intends that which is the necessary effect of its enactments. The object, the purpose and the intention of the enactment, is the same. It need not be expressed in any recital or preamble. It is not competent for any court judicially to ascribe any part of the legal operation of a statute to inadvertence. If a bill is passed making a provision which is inconsistent with the Constitution it must follow that it is an amending bill. It is so by necessary implication. The intention is to be implied from the very fact that the subsequent legislation is inconsistent with earlier legislation.

Fourthly: the proviso to subsection (4) has been complied with in this case. Sections 13 and 24 of the Constitution support the view that the legislature was well within its powers when it enacted sections 5 and 7 of the impugned Act with the necessary two-thirds majority. It is common ground that the impugned Act bears the Speaker's certificate given under subsection 4 of section 29. That is sufficient to give the impugned Act validity.

Against that background the legislature after passing legislation inconsistent with the Constitution has made it clear by section 10 that the impugned Act shall prevail, and that if there are any inconsistencies there can be no matter of doubt that the legislature was amending the Constitution. A similar provision was considered in Bribery Commissioner v. Ranasinghe.²⁰ Section 10 (2) reinforces Parliament's intention to amend the Constitution if necessary.

Fifthly: the impugned Act is not an exercise of judical power. The legislature has not wholly excluded the courts' functions. The appellant could go to court and challenge the findings of the commission of inquiry. This appeal concerns only sections 5 and 7 of the impugned Act. They are directed to the question whether persons who have been found guilty of the allegation of bribery shall or shall not sit in the House of Representatives, and are accordingly regulating the composition of the House. "Civic disabilities" are disabilities in civic life. That in itself does not make the Act an exercise of judicial power or an invasion of that part

20 [1965] A.C. 172.

of government which is reserved to the judicature. All that the Constitution does is to separate certain functions of government, namely, the function of the courts.

Sixthly: the impugned Act is not predominantly a punishment, it is a disqualification to fulfil the function of regulating the composition of the House of Representatives. To create a disability in the future is not to create a punishment. Punishment, whatever it be in other circumstances, is not apt to civic disability. The predominant object of the impugned Act is to keep the House of Representatives clean. That in itself does not make it the exercise of judicial power, it does not amount to doing that which is left exclusively to the judiciary. The test is whether the law is part of the normal functions of the courts. The law concerned with the composition of Parliament is not concerned with the functions of courts.

A bill of attainder must be regarded with caution to see whether it is an invasion of judicial power. The impugned Act is not retributive, because it contains no declaration of guilt, and the disabilities imposed do not have the character of punishment for guilt. It does not impose a fine or imprisonment. The imposition of disabilities is not necessarily equated to punishment. The power to punish is incidental to the legislative function. The distinction between discipline and punishment is that disciplinary action and disciplinary penalties may be imposed or recommended by Parliament for misconduct, and that does not create any offences punishable as crimes. The powers and privileges attached to the House of Commons for its own protection are incidents of the legislative function. Parliament has legislative power to protect itself.

[Reference was made to Reg. v. Richards, Ex parte Fitzpatrick and Browne²¹; Reg. v. White, Ex parte Byrnes²²; Rex v. Woodhouse²³; Shell Company of Australia Ltd. v. Federal Commission of Taxation²⁴; Attorney General for Australia v. The Queen²⁵; Liyanage v. The Queen²⁶; Calder v. Bull²⁷; Cummings v. The State of Missouri²⁸ and United States v. Lovett.²⁹]

Lastly: even if it be assumed that the impugned Act is an exercise of judicial power, a legislative amendment can be made in one stage so that Parliament can by a law passed in accordance with the proviso to section 29 (4) both assume judicial power and

21 92 C.L.R. 157, 167.

22 (1963) 109 C.L.R. 665.

23 [1906] 2 K.B. 501, 534.

24 [1931] A.C. 275.

25 [1957] A.C. 288.

26 [1967] 1 A.C. 259, 291.

27 (1798) 3 U.S. 386.

28 71 U.S. 277, 320, 323, 324.

29 328 U.S. 303, 322, 323, 324.

exercise it in the one law. The appellant has conceded that if the impugned Act is the exercise of legislative power, it can be done in one stage. [Reference was made to Imperial Hydropathic Hotel Co., Blackpool v. Hampson³⁰; In re Bank of Hindustan, China and Japan, Ex parte Alison³¹ and McCawley v. The King.³²] At any moment of time the Ceylon Parliament can do anything, including the acquisition of judicial power, provided the proper procedural form is followed. Therefore, Parliament can create civic disabilities and amend the Constitution to give it power to do so in one and the same Act.

As to the procedural issue of mandamus, first: the appellant relied on no statutory provisions in the courts below imposing any duty on the respondents. Section 75 of the Constitution deals with only the interim period, it merely states what is the amount of remuneration of members of the House but imposes no duty on anyone to part with the remuneration. Either section 75 ceases to have any effect at the end of the first Parliament, or, alternatively, it only fixes the amount of remuneration without touching the question of any duty to pay. The Ceylon Appropriation Act, 1965, is permissive and similar to the United Kingdom Appropriation Act. There is no other statutory provision regarding duties of the clerk of the House. A Member of Parliament is not entitled in law to his salary. Assuming that on the basis of section 75 he is so entitled, he must bring an action against the Crown. The form of action would be against the Attorney-General. In law payments by the Crown are all permissive. The Constitution s. 28, provides for the appointment and removal of the clerk of the House by the Crown. The Constitution does not provide that the clerk is a servant of the House. In so far as the clerk performs the functions of reading bills, distributing papers, etc., he is serving the House, but not as clerk to the House. His duties in the House are as servant of the House. His duty, if any, to pay a salary would be as servant of the Crown, and arises from the fact that the Crown has moneys made available to it under the Annual Appropriation Act. Section 31 of the Constitution relating to Money Bills does not alter the fundamental position that the money granted under the Annual Appropriation Act is granted to the Crown. Under the Constitution the executive power is in the Governor-General as representing Her Majesty (section 45), and the revenue is in the Crown (sections 56 and 67), Section 46 relates to the

30 23 Ch.D. 1, 2, 4, 6, 8, 9, 11, 12.

31 (1879) L.R. 9 Ch. 1, 4, 6, 7, 12, 18-22.

32 [1920] A.C. 691, 706, 707.

powers of the cabinet. There is no suggestion that the appellant's seat has fallen vacant under section 24 of the Constitution. The Appropriation Act does not expressly or impliedly impose a legal duty which the clerk of the House owes to the appellant. The effect of the Act is not to give any third person a right to the money. The money voted in the Act would be received by the clerk and paid by him to a Member of Parliament as a servant or agent of the Crown. He is answerable to the Crown and to the Crown alone. Reg v. Lords Commissioners of the Treasury.³³ The principles of English law apply, so that mandamus will not lie (a) unless the respondents are under a legal duty to the appellant to pay his salary, (b) to compel a servant of the Crown, that is, in effect the Crown, to perform an alleged duty owed to the appellant and (c) to compel an agent to perform an alleged duty owed by the principal to the appellant: Reg v. Lords Commissioners of the Treasury,³³ Nakkuda Ali v. Jayaratne.³⁴

Secondly: the appellant never asked for a prayer for recognition as member of the House. The matter has not been canvassed or argued before the Supreme Court. The appellant has sued the respondents Nos. 1 and 2 and not the Attorney-General. If the appellant succeeds in mandamus to get recognition as a member of the House it would in effect be getting recognition from the House, and therefore an order for mandamus is not appropriate. The point of mandamus for recognition as a Member of Parliament is a new point. The prayer in the writ is only for payment of remuneration, allowances and emoluments and benefits.

E. F. N. Gratiaen Q.C. replied.

July 25. The judgment of the board was delivered by SIR DOUGLAS MENZIES. This is an appeal from a judgment and decree of the Supreme Court of Ceylon (Sansoni C.J. and G. P. A. Silva J.) refusing the appellant's application for a mandate in the nature of a writ of mandamus requiring the respondents who are the clerk to the House of Representatives, Ceylon, and the assistant clerk to the House respectively to recognise the appellant as a Member of Parliament and to pay him his remuneration and allowances as a member.

The appellant was elected to the House of Representatives, on March 22, 1965, and was sworn as a member thereof on April 5, following. His term of office was for five. years. He continued as a member of the House until November 15, 1965, and the principal

33 L.R. 7 Q.B. 387, 394.

34 [1951] A.C. 66.

question with which the board is concerned is whether his seat was vacated by the coming into operation on November 16, 1965, of the Imposition of Civic Disabilities (Special Provisions) Act ("the Act"). It was, if the Act was within the competence of the Parliament of Ceylon, for, in the circumstances, the effect of section 7 was to vacate the appellant's seat.

The unusual procedure which the appellant adopted to obtain a decision upon the validity of the Act was followed because, strangely enough, it seemed the only way to bring the question of the validity of the Act directly before the Supreme Court. Other proceedings seeking a declaration and an injunction in connection with related matters were, so their Lordships have been informed, commenced in the district court and those proceedings there lie dormant. With them, the board is not concerned although their Lordships do appreciate that their conclusions here will, as counsel for the appellant frankly stated, have a vital bearing on the proceedings in the district court.

The Act, as its preamble indicates, followed, but at a distance of five years, the reports made in 1959 by a commission of inquiry constituted under section 2 of the Commissions of Inquiry Act. This commission, upon inquiry, found that allegations of bribery against certain persons, members of the Senate, House of Representatives or State Council of Ceylon, had been proved. The appellant was one of those persons. The preamble to the Act recorded "And whereas it has become necessary to impose civic disabilities on the said persons consequent on the findings of the said commission." The Act consequently imposed disabilities upon any person "to whom the Act applies" and "a person to whom this Act applies" was defined to mean "each person specified in the schedule to this Act in regard to whom the relevant commission in its reports found that any allegation or allegations of bribery had been proved." The schedule named six persons including the appellant. The disabilities imposed by the Act extended to disqualification for seven years from registration as an elector and from voting at elections; disqualification for seven years from being a candidate for election to the House of Representatives or to any local authority; disqualification for seven years from being elected or appointed as senator or member of the House of Representatives or a member of any local authority or sitting and voting as such; and disqualification for all time from being employed as a public servant. Section 7

of the Act is the one with which the board is immediately concerned. It is in these terms:

"Where, on the day immediately prior to the relevant date, a person to whom this Act applies was a Senator, or a member of the House of Representatives or of any local authority, his seat as a Senator or such member, as the case may be, shall be deemed, for all purposes, to have become vacant on that date."

If this section is valid the appellant's application, wherein he asserted his continued membership of the House of Representatives, was rightly refused by the Supreme Court.

The attack upon the validity of the Act asserted two propositions with regard to it. First, that it was inconsistent with the Ceylon (Constitution) Order in Council 1946, i.e., the Constitution of Ceylon, and, secondly, that although it purported to have been enacted as an amendment of the Constitution in the manner provided by section 29 (4) thereof, it was not an effective amendment. Three reasons were advanced for this second proposition: (1) That the Act was not a law. Instead of being the exercise of legislative power it was the usurpation of judicial power. (2) That even if the Act was an exercise of legislative power it cannot be regarded as an amendment of the Constitution because it does not, upon its face, have that character. (3) That if, upon its proper construction, the Act were both an assumption by the Parliament of judicial power and the exercise of that power, the Act attempted too much, for judicial power would need to be acquired by Parliament under an amendment of the Constitution before it could be exercised by Parliament. This would require two Acts of Parliament.

On two important matters there was no controversy before the board.

The appellant's first proposition, that there was inconsistency between the provisions of the Act and the Constitution of Ceylon, was not disputed. By section 24 of the Constitution, provision is made for the vacation of the seat of a member of Parliament in specified circumstances which have no relevance to the appellant. These include section 24 (1) (d), viz., "if he (i.e., a member of Parliament) becomes subject to any of the disquali-fications mentioned in section 13 of this Order." Section 13 (3) (k) is as follows:

"if during the preceding seven years he has been adjudged by a competent court or by a Commission appointed with the approval of the Senate or the House of Representatives

or by a Committee thereof to have accepted a bribe or gratification offered with a view to influencing his judgment as a Senator or as a Member of Parliament."

The appellant was not adjudged to have accepted a bribe, etc., by a court or by such a commission. There is therefore no doubt that, if the Act is valid, the appellant's seat was vacated upon a ground not to be found in the constitution as it stood before the Act came into force.

The second matter not in controversy before the board was that the Constitution of Ceylon embodies the doctrine of the separation of legislative, executive and judicial power, at least to the extent that it commits judicial power to the courts to the exclusion of the Parliament. This was decided by the Privy Council in Liyanage v. The Queen.¹ Their Lordships said²:

"These provisions manifest an intention to secure in the judiciary a freedom from political, legislative and executive control. They are wholly appropriate in a Constitution which intends that judicial power shall be vested only in the judicature. They would be inappropriate in a Constitution by which it was intended that judicial power should be shared by the executive or the legislature. The Constitution's silence as to the vesting of judicial power is consistent with its remaining, where it had lain for more than a century, in the hands of the judicature. It is not consistent with any intention that henceforth it should pass to or be shared by, the executive or the legislature."

Later, after referring to the contention of the solicitor-general that the Supreme Court was wrong in finding in the Constitution of Ceylon a separation of powers rather than merely a separation of function, their Lordships said³:

"... that decision was correct and there exists a separate power in the judicature which under the Constitution as it stands cannot be usurped or infringed by the executive or the legislature."

The board is now in a position to consider the first question for its determination, viz., whether the Act is what it purports to be, a law made by Parliament; or is, rather, an exercise of judicial power.

Counsel for both the appellant and the respondents were content to accept, so far as it goes, the description of "judicial power" adopted by the Judicial Committee in Shell Company of

1 [1967] 1 A.C. 259; [1966] 2 W.L.R. 682; [1966] 1 All E.R. 650, P.C.

2 [1967] 1 A.C. 259, 287, 288.

3 Ibid. 289.

Australia Limited v. Federal Commission of Taxation⁴ in a passage referring to the Constitution of the Commonwealth of Australia:

"What is 'judicial power'? Their Lordships are of opinion that one of the best definitions is that given by Griffith C.J. in Huddart, Parker & Co. Proprietary Ltd. v. Moorehead,⁵ where he says⁶ 'I am of opinion that the words "judicial power" as used in section 71 of the Constitution mean the power which every sovereign authority must of necessity have to decide controversies between its subjects, or between itself and its subjects, whether the rights relate to life, liberty or property. The exercise of this power does not begin until some tribunal which has power to give a binding and authoritative decision (whether subject to appeal or not) is called upon to take action.'"

This description was adopted, however, in a case where the question at issue was whether or not a taxation board of review was exercising judicial power in the sense of ascertaining and applying an established standard of liability and it is not so pertinent in a case such as this where the problem is rather to ascertain the true character of an enactment which is in form legislation altering legal rights by its own force. This observation does however point to what appears to their Lordships as the appellant's fundamental difficulty, i.e., that what is claimed to be a judicial determination is in form legislation altering the law as it stood. Counsel for the appellant have naturally fastened upon certain observations in which bills of attainder and bills of pains and penalties have been referred to as "an exercise of the judicial power of Parliament in a legislative form," e.g., Halsbury's Laws of England, 3rd ed., vol. 28 (1959), p. 398, and have sought to establish that the character of the Act is that of a bill of attainder or a bill of pains and penalties. Reference was also made to observations in Liyanage v. The Queen⁷ to describe the Acts there successfully impugned, viz.:

"One might fairly apply to these Acts the words of Chase J., in the Supreme Court of the United States in Calder v. Bull⁸: 'These acts were legislative judgments; and an exercise of judicial power.' Blackstone in his Commentaries said: 'Therefore a particular act of the legislature to confiscate the goods of Titius, or to attaint him of high treason, does not enter into the idea of a municipal law; for the operation of this act is spent upon Titius only and

4 [1931] A.C. 275, 295, 296; 47 T.L.R. 115.

5 (1908) 8 C.L.R. 330.

6 Ibid. 357.

7 [1967] 1 A.C. 259, 291.

8 (1798) 3 U.S. 386.

has no relation to the community in general; it is rather a sentence than a law.' If such Acts as these were valid the judicial power could be wholly absorbed by the legislature and taken out of the hands of the judges."

Moreover by reference to decisions of the Supreme Court of the United States of America it was sought to support the conclusion that the Act would, in the United States of America, fall within the category of an act of attainder.

It is unwise in the sphere of constitutional law to go beyond what is necessary for the determination of the case in hand and, because the board is of the opinion that the character of the Act is not that of an act of attainder or a bill of pains and penalties, it is not necessary here to attribute a particular character to what has, as has already been seen, been described as an "exercise of the judicial power of Parliament in a legislative form." The Act is not an act of attainder or a bill of pains and penalties because it does not condemn the appellant for any action, i.e., it contains no declaration of guilt, and because the disabilities which it imposes have not the character of punishment for guilt.

At this point it is convenient to say a little more about the United States cases upon which Mr. Gratiaen so greatly relied. They were all cases involving the construction and application of article 1, section 9, clause 3, or article 1, section 10, of the Constitution of the United States of America which together prohibit Congress or a state from passing a bill of attainder or ex post facto law. As early in the constitutional history of the United States as 1866 it was decided that

"a bill of attainder is a legislative act which inflicts punishment without a judicial trial. If the punishment be less than death, the act is termed a bill of pains and penalties. Within the meaning of the constitution, bills of attainder include bills of pains and penalties." Cummings v. The State of Missouri.⁹

In the same case the court described such laws as follows¹⁰:

"In these cases the legislative body, in addition to its legitimate functions, exercises the powers and office of judge; it assumes, in the language of the text-books, judicial magistracy; it pronounces upon the guilt of the party, without any of the forms of safeguards of trial; it determines the sufficiency of the proofs produced, whether conformable to the rules of evidence or otherwise; and it fixes the degree of punishment in accordance with its own notions of the enormity of the offence."

9 (1886) 71 U.S. 277.

10 Ibid. 323.

Mr. Gratiaen seizing upon the description of the enactment of the bill of attainder as an assumption of judicial magistracy went so far as to submit that article 1, section 9, clause 3, of the Constitution of the United States of America was plainly superfluous because the separation of powers, so clearly embodied in that Constitution, carried with it as a necessary consequence the limitation that Congress could not pass a law truly described as an exercise of judicial magistracy. He went on to contend that what was to be found by express prohibition in the Constitution of the United States was, upon the authority of the American decisions, to be found by implication in the Constitution of Ceylon. Their Lordships, however, would express no opinion upon the hypothetical question of the American law, i.e., whether or not the Congress of the United States could, in the absence of article 1, section 9, clause 3, of the Constitution, pass an Act of Attainder, and the board is not prepared to base any reasoning in relation to the powers of the Parliament of Ceylon upon the assumption that Congress could not do so.

In considering the argument that the Act is in truth a bill of attainder or a bill of pains and penalties their Lordships have, of course, been greatly assisted by the judgments of the justices of the Supreme Court to which their attention has been drawn and they have found particularly valuable guidance in the judgment of Frankfurter J. in United States v. Lovett,¹¹ notwithstanding that in the result that learned judge was one of the minority. Frankfurter J. said¹²: "All bills of attainder specify the offense for which the attainted person was deemed guilty and for which punishment was imposed." In rejecting the contention that the Act thereunder consideration was a Bill of Attainder his honour¹³ said:

"No offence is specified and no declaration of guilt is made. ... Not only does section 304 lack the essential declaration of guilt. It likewise lacks the imposition of punishment in the sense appropriate for bills of attainder. ... Punishment presupposes an offense, not necessarily an act previously declared criminal, but an act for which retribution is exacted. The fact that harm is inflicted by governmental authority does not make it punishment. Figuratively speaking all discomforting action may be deemed punishment because it deprives of what otherwise would be enjoyed. But there may be reasons other than punitive for such deprivation.

11 (1946) 328 U.S. 303.

12 Ibid. 322-323.

13 Ibid. 323-324.

A man may be forbidden to practice medicine because he has been convicted of a felony ... or because he is no longer qualified. ...' The deprivation of any rights, civil or political, previously enjoyed, may be punishment, the circumstances attending and the causes of the deprivation determining this fact'." Cummings v. State of Missouri.¹⁴

The two elements found by Frankfurter J. to be absent from the law under consideration in United States v. Lovett¹⁵ the board find to be absent from the Act. First, it contains no declaration of guilt of bribery or of any other act. As has already been observed it applies to

"each person specified in the schedule of this Act in regard to whom the relevant commission in its reports found that any allegation or allegations of bribery had been proved."

It is the commission's finding that attracts the operation of the Act not any conduct of a person against whom the finding was made. Parliament did not make any finding of its own against the appellant or any other of the seven persons named in the schedule. The question of the guilt or innocence of the persons named in the schedule does not arise for the purpose of the Act and the Act has no bearing upon the determination of such a question should it ever arise in any circumstances. Secondly, the disabilities imposed by the Act are not, in all the circumstances, punishment. It is, of course, important that the disabilities are not linked with conduct for which they might be regarded as punishment, but more importantly the principal purpose which they serve is clearly enough not to punish but to keep public life clean for the public good. Their Lordships have already summarised the disabilities imposed by the Act and what has just been said applies to all disabilities so imposed. The particular task of the board is, however, to decide whether the law vacating the appellant's seat is a valid law and in their Lordships' opinion it would be wrong to describe that law as one for the punishment of the member whose seat is vacated. Reference has already been made to earlier legislation vacating the seats of persons convicted of bribery by a court or found by certain commissions to have been guilty of bribery. The Act is a law of the same character as this legislation notwithstanding that it operates in respect of particular persons against whom findings of bribery have been made. Unforeseen cases may always arise calling for the special exercise of Parliament's

14 71 U.S. 277, 320, 323, 324.

15 328 U.S. 303.

power to protect itself. Thus if a Member of Parliament were to act in a way not previously proscribed but obviously unfitting him to remain in Parliament a new law vacating his seat would not, in essence, be a law punishing him for his conduct. The case now under consideration is, of course, substantially different from the case of Reg. v. Richards, Ex parte Fitzpatrick and Browne,¹⁶ but it may be observed that in a judgment, approved by the Judicial Committee, Dixon C.J., speaking for the High Court of Australia, did emphasise the tendency to treat the powers and privileges attached to the House of Commons for its own protection as incidents of the legislative function. His Honour said¹⁷:

"It should be added to that very simple statement that throughout the course of English history there has been a tendency to regard those powers as not strictly judicial but as belonging to the legislature, rather as something essential or, at any rate, proper for its protection. This is not the occasion to discuss the historical grounds upon which these powers and privileges attached to the House of Commons. It is sufficient to say that they were regarded by many authorities as proper incidents of the legislative function, notwithstanding the fact that considered more theoretically - perhaps one might even say, scientifically - they belong to the judicial sphere."

It was no doubt the recognition of this tendency that influenced G. P. A. Silva J. to say:

"a Court will be slow to invalidate any law passed by the Parliament imposing certain disabilities or disqualifications on Members of Parliament in view of the power the Parliament has to control its own proceedings and impose its own discipline."

Speaking generally, however, their Lordships would observe that it is not readily to be assumed that disciplinary action, however much it may hurt the individual concerned, is personal and retributive rather than corporate and self-respecting. The distinction between discipline and punishment is one which the High Court of Australia has drawn recently in Reg. v. White, Ex parte Byrnes.¹⁸ The question was whether the chief officer of a Commonwealth department who in the exercise of powers conferred by section 55 of the Public Service Act found an officer of his department guilty of an "offence" in refusing to have obeyed a lawful order and imposed a

16 (1954) 92 C.L.R. 157.

17 Ibid. 167.

18 (1963) 109 C.L.R. 665.

fine therefore exercised "judicial power." Section 55 made wilful disobedience to a lawful order an "offence" for which punishment was provided. The court having observed the difficulty discovered in the case was apparent rather than real and arose from the choice of language that had been made said¹⁹:

"Section 55, in creating so-called 'offences' and providing for their 'punishment,' does no more than define what is misconduct on the part of a public servant warranting disciplinary action on behalf of the Commonwealth and the disciplinary penalties that may be imposed or recommended for such misconduct; it does not create offences punishable as crimes."

For the foregoing reasons their Lordships therefore reject the argument that the Act is legislation of the same character as an act of attainder or a bill of pains and penalties.

Their Lordships however going beyond this merely negative conclusion, are of opinion that the Act is an exercise of legislative power and not the usurpation of judicial power. The Act is an Act of Parliament purporting to change the law and providing in terms that in the event of inconsistency with existing law the Act shall prevail. Section 10. In determining whether the Act should be regarded as a usurpation of judicial power weight must be given to the consideration that it is in form legislation and that it is enacted

"... by the Queen's Most Excellent Majesty by and with the advice and consent of the Senate and the House of Representatives of Ceylon in this present Parliament assembled, and by the authority of the same. ..."

The Act is subject to the ordinary incidents of legislation, viz., it can be repealed or amended. Furthermore, for the reasons already stated the Act does not declare guilt or impose punishment. Moreover, although the Act has a strictly limited operation in that it applies only to

"each person specified in the Schedule ... in regard to whom the relevant Commission in its Reports found that any allegation or allegations of bribery had been proved,"

its terms show that reference to the reports - which do not form part of the Act - will or may be necessary in its application. It does not speak like a court order. Finally, although the operation of the Act is made to depend upon past events that operation is prospective for the disabilities are imposed from the date of its commencement for the periods defined.

19 109 C.L.R. 670.

Having come to the conclusion that the Act is legislative in character it now becomes necessary to consider the contention that being inconsistent with the provisions of the Constitution it is invalid because it was not enacted in accordance with the requirements of section 29 (4) of the Constitution. Section 29 (1) and (4) of the Constitution are as follows:

"(1) Subject to the provisions of this Order, Parliament shall have power to make laws for the peace, order and good government of the Island."

"(4) In the exercise of its powers under this section, Parliament may amend or repeal any of the provisions of this Order, or of any other Order of Her Majesty in Council in its application to the Island:

Provided that no Bill for the amendment or repeal of any of the provisions of this Order shall be presented for the Royal Assent unless it has endorsed on it a certificate under the hand of the Speaker that the number of votes cast in favour thereof in the House of Representatives amounted to not less than two thirds of the whole number of Members of the House (including those not present)."

Here it may be observed that subsections (2) and (3) forbidding laws interfering with religious freedom and rendering void any laws in contravention of this prohibition do not require consideration.

The bill for the Act when presented for the Royal Assent did have endorsed upon it the certificate of the Speaker required by the proviso to section 29 (4) and that certificate was in accordance with the actual voting in the House. The critical question is, therefore, whether something more was required to bring the Act within the power of Parliament conferred by section 29 (1) and (4). Counsel for the appellant argued that there was and that the Act, being inconsistent with the Constitution as it stood, was invalid for the reason that it was not in form an express amendment of the Constitution.

As long ago as 1920 the judicial committee in McCawley v. The King²⁰ decided that an uncontrolled Constitution could like any other Act of Parliament be altered simply by the enactment of inconsistent legislation. Their Lordships' statement of the proposition which was rejected was as follows²¹:

"The constitution of Queensland is a controlled constitution. It cannot, therefore, be altered merely by enacting legislation inconsistent with its articles. It can only be

20 [1920] A.C. 691; 36 T.L.R. 387, P.C.

21 [1920] A.C. 691, 705.

altered by an Act which in plain and unmistakable language refers to it, asserts the intention of the Legislature to alter it and consequently gives effect to that intention by its operative provisions."

The reason for the rejection of this proposition was thus stated²²:

"The Legislature of Queensland is the master of its own household, except in so far as its powers have in special cases been restricted. No such restriction has been established. and none in fact exists, in such a case as is raised in the issues now under appeal."

The power of the Parliament of Ceylon to amend or repeal the provisions of the Constitution is restricted in the manner provided by section 29. There is, therefore, a most material distinction between the Constitution of Ceylon and that of Queensland which is made apparent by the following citations from the judgment of Lord Birkenhead L.C. His Lordship said²³:

"The first point which requires consideration depends upon the distinction between constitutions the terms of which may be modified or repealed with no other formality than is necessary in the case of other legislation, and constitutions which can only be altered with some special formality, and in some cases by a specially convened assembly. ...

"Many different terms have been employed in the textbooks to distinguish these two contrasted forms of constitution. Their special qualities may perhaps be exhibited as clearly by calling the one a controlled and the other an uncontrolled constitution as by any other nomenclature."

Nevertheless, notwithstanding the distinction that renders the decision in McCawley's case²⁴ inapplicable here their Lordships do rely upon a passage from the judgment of the Lord Chancellor.²⁵ It is as follows:

"... Narrow constructions were placed by colonial judges upon the instruments creating constitutions in colonial Legislatures. Causes of friction multiplied, and soon a conflict emerged, analogous to that which is the subject of discussion to-day, between those who insisted that the constitutions conceded to the colonies could be modified as easily as any other Act of Parliament, and those who affirmed that the statute defining such constitutions was 'fundamental' or 'organic' and that therefore the constitution was controlled. These controversies became extremely grave, and were

22 [1920] A.C. 714.

23 Ibid. 703, 704.

24 Ibid. 691.

25 Ibid. 709.

reflected in an opinion, cited in the course of the argument and given in 1864 by the law officers of the day, Sir Roundell Palmer and Sir Robert Collier. These distinguished lawyers were of opinion, and the Board concurs in their view, that when legislation within the British Empire which is inconsistent with constitutional instruments of the kind under consideration comes for examination before the Courts, it is unnecessary to consider whether those who were responsible for the later Act intended to repeal or modify the earlier Act. If they passed legislation which was inconsistent with the earlier Act, it must be presumed that they were aware of, and authorised such inconsistency."

Although this passage has no bearing upon the ultimate question here, i.e., whether the manner and form required by section 29 for a constitutional amendment were actually observed, it has an important bearing upon the question to which a good deal of argument was addressed, namely, whether an inconsistent law should be regarded as an amendment of a controlled constitution in the absence of an expressed intention to amend. The expression of opinion of the law officers concurred with by the board is that, as a general rule, an inconsistent law amends. This is, of course, but an instance of the fundamental principle that it is from its operation that the intention of a statute is to be gathered. As the law officers said in the opinion already referred to²⁶:

"'If the colonial Registration Act was ultra vires of the Legislature of South Australia, it can only be so on the ground that it altered the electoral law contained in the Constitutional Act, No. 2 of 1855. Assuming this to have been its effect, we cannot accede to the argument, which seems to have found acceptance with two South Australian Judges, that it was not passed "with the object" of altering the Constitution of the Legislature. It must be presumed that a legislative body intends that which is the necessary effect of its enactments; the object, the purpose and the intention of the enactment, is the same; it need not be expressed in any recital or preamble; and it is not (as we conceive) competent for any Court judicially to ascribe any part of the legal operation of a Statute to inadvertence.'"

In the Bribery Commissioner v. Ranasinghe²⁷ the Judicial Committee had occasion to consider McCawley's case²⁸ with

26 Opinion of Sir Roundell Palmer and Sir Robert Collier, 1864.

27 [1965] A.C. 172; [1964] 2 W.L.R. 1301; [1964] 2 All E.R. 785, P.C.

28 [1920] A.C. 691.

reference to the Constitution of Ceylon and explained the essential difference between McCawley's case²⁸ and the case then under consideration. Lord Pearce giving the judgment of the board said²⁹:

"It is possible now to state summarily what is the essential difference between the McCawley case³⁰ and this case. There the legislature, having full power to make laws by a majority, except upon one subject that was not in question, passed a law which conflicted with one of the existing terms of its Constitution Act. It was held that this was valid legislation, since it must be treated as pro tanto an alteration of the Constitution, which was neither fundamental in the sense of being beyond change nor so constructed as to require any special legislative process to pass upon the topic dealt with. In the present case, on the other hand, the legislature had purported to pass a law which, being in conflict with section 55 of the Order in Council, must be treated, if it is to be valid, as an implied alteration of the Constitutional provisions about the appointment of judicial officers. Since such alterations. even if express, can only be made by laws which comply with the special legislative procedure laid down in section 29 (4), the Ceylon legislature has not got the general power to legislate so as to amend its Constitution by ordinary majority resolutions, such as the Queensland legislature was found to have under section 2 of its Constitution Act, but is rather in the position, for effecting such amendments, that that legislature was held to be in by virtue of its section 9, namely, compelled to operate a special procedure in order to achieve the desired result."

Accordingly, therefore, upon general principles and with the guidance of earlier authority their Lordships have come to the conclusions that the Act, inconsistent as it is with the Constitution of Ceylon, is to be regarded as amending that Constitution unless there is to be found in the constitutional restrictions imposed on the power of amendment some provision which denies its constitutional effect. This brings the board to the actual terms of section 29 (1) and (4).

Section 29 (1) confers full legislative power upon Parliament subject only "to the provisions of this order," i.e., the Constitution. Subsection (4) indicates that the power conferred by subsection (1) extends to amending or repealing "any of the provisions of this order." The exercise of this power is however restricted

28 [1920] A.C. 691.

29 [1965] A.C. 172, 198.

30 [1920] A.C. 691.

by the proviso. As has already been explained, their Lordships do read the words "amend or repeal" in the earlier part of section 29 (4) as covering an amendment or repeal by inconsistent enactment. Indeed were these words "amend or repeal" not to be regarded as covering an alteration by implication it might be that a law effecting such an alteration could be enacted under section 29 (1) without any restriction arising from subsection (4). Their Lordships however do not so read the statutory provisions and have to doubt that the Parliament of Ceylon has not uncontrolled power to pass laws inconsistent with the Constitution. Apart from the proviso to subsection (4) therefore the board has found no reason for not construing the words "amend or repeal" in the earlier part of section 29 (4) as extending to amendment or repeal by inconsistent law. Attention was, however, directed to the words in the proviso "bill for the amendment or repeal" and it was argued that only a bill which provided expressly for the amendment or repeal of some provision of the order would fall within these words. Their Lordships would find it difficult to restrict the plain words of the earlier part of the subsection by reference to an ambiguity in the proviso, if one were to be found, but they find no ambiguity and they reject the limitation which it has been sought to introduce into the proviso. A bill which, if it becomes an Act, does amend or repeal some provision of the order is a bill "for the amendment or repeal of a provision of the order." It would have been inexact to refer in the proviso to a bill to amend or repeal a provision of the order, but a bill which when passed becomes an amending Act falls exactly within the description under consideration. The bill which became the Act was a bill for the amendment of section 24 of the Constitution simply because its terms were inconsistent with that section. It is the operation that the bill will have upon becoming law which gives it its constitutional character, not any particular label which may be given to it. A bill described as one for the amendment of the Constitution which contained no operative provision to amend the Constitution would not require the prescribed formalities to become a valid law whereas a bill which upon its passing into law would, if valid, alter the Constitution would not be valid without compliance with those formalities. In his judgment in the Supreme Court Sansoni C.J. quoted aptly from the judgment

of Isaacs and Richards JJ. in McCawley's case³⁰ - the minority judgment in the High Court approved by the Privy Council - as follows³¹:

"The effect of the repealing Act must therefore depend on what it does, and not on the label it affixes to itself."

Their Lordships also agree with Silva J. when he said

"I do not think that when the proviso to section 29 (4) proceeded to set out the manner of presentation of a constitutional amendment it also intended to prescribe a particular form to be present on the face of it."

In the course of argument a good deal was made of the doubts and complexities that must follow if the Constitution can be amended by laws which do not, as it were, show their colours, and the point was forcibly emphasised by reference to the very law under consideration. The board is thoroughly aware of the difficulties that are likely to result from altering the Constitution except by laws which plainly and expressly amend it with particularity. Considerations of this sort, powerful as they ought to be with the draftsman, cannot in a court of law weigh against the considerations which have brought the board to its conclusions that a bill, which upon its passage into law would amend the constitution, is a bill for its amendment. In association with the considerations to which reference has just been made attention was drawn to section 10 of the Act. This section is far from clear and their Lordships have not felt able to base any affirmative reasoning upon it. All that can be gathered from it is that Parliament was aware that the Act might be regarded as amending the Constitution in some particulars. The introduction of such a provision does little to obviate the complexities to which legislation such as the Act must inevitably give rise in the future if and when it becomes necessary to set out the Constitution as amended.

Finally upon the merits of the case their Lordships would observe that in view of their conclusion that the Act is a law and not an exercise of judicial power it has not been necessary to consider the question, which was fully argued on both sides, whether Parliament can by a law passed in accordance with the proviso to section 29 (4) both assume judicial power and exercise it in the one law.

30 [1920] A.C. 691.

31 (1918) 26 C.L.R. 9, 63.

Their Lordships have thought it proper to deal with the appeal upon its merits before considering whether the procedure actually adopted to bring the question of the validity of the Act before the Supreme Court, i.e., an application for a mandate in the nature of a writ of mandamus to the clerk and the Assistant clerk of the House of Representatives, was appropriate. In the board's opinion it was not. In the end it was practically conceded by Mr. Gratiaen that it had not been shown that the respondents or either of them were under a duty to the appellant to pay him his parliamentary salary and allowances even if he continued to be a member of Parliament. Furthermore in their Lordships' opinion it was not shown that the respondents or either of them owed any duty to the appellant to "recognise" him as a member of Parliament even if a sufficiently precise meaning to found mandamus could be accorded to the vague word "recognise." The duties upon which reliance was placed arose under the standing orders of the House of Representatives and although they were no doubt duties in respect of members of the house they were duties owed to the house itself or to the Crown as the employer of the respondents. On the question of the competence of the proceedings in the Supreme Court their Lordships have therefore come to the same conclusion as did Sansoni C.J.

Their Lordships will therefore humbly advise Her Majesty that the appeal should be dismissed. The appellant must pay the costs of the appeal.

Solicitors: Hatchett Jones & Co.; T. L. Wilson & Co.

S. P. K.