Bribery Commissioner v Ranasinghe  AC 172;  2 All ER 785,  2 WLR 1301
LORD PEARCE: The appellant is the Bribery Commissioner of Ceylon on whom lies the duty of bringing prosecutions before the bribery tribunal which was created by the Bribery Amendment Act, 1958. The respondent was prosecuted for a bribery offence before that tribunal. It convicted and sentenced him to a term of imprisonment and a fine. On appeal the Supreme Court declared the conviction and orders made against him null and inoperative on the ground that the persons composing the bribery tribunal which tried him were not lawfully appointed to the tribunal. In the present case, as in some earlier reported cases, the court took the view that the method of appointing persons to the panel from which the tribunal is drawn offends against an important safeguard in the Constitution of Ceylon.
The Constitution is contained in the Ceylon (Constitution and Independence) Orders in Council, 1946 and 1947. There is no need to refer in detail to the various Acts and Orders that established the independence of Ceylon....Viscount Radcliffe in Attorney-General of Ceylon v de Livera said of the constitution ( AC 103 at p. 118); "although there are many variations in matters of detail, its general conceptions are seen at once to be those of a parliamentary democracy founded on the pattern of the constitutional system of the United Kingdom."
The Constitution does not specifically deal with the judicial system which was established in Ceylon by the Charter of Justice of 1833 and is dealt with in certain ordinances, the principal being the Courts Ordinance, cap. 6. The power and jurisdiction of the courts are therefore not expressly protected by the Constitution. However, the importance of securing the independence of judges and of maintaining the dividing line between the judiciary and the executive was appreciated by those who framed the Constitution...Part 5 of the Constitution is headed "The Executive" and Part 6 "The Judicature". Part 6 deals with the appointment and dismissal of judges. The judges of the Supreme Court are not removable except by the Governor-General on an address of the Senate and the House of Representatives (s. 52). So far as concerns the judges of lesser rank, s. 55 provided that "the appointment, transfer, dismissal and disciplinary control of judicial officers is hereby vested in the Judicial Service Commission." The commission consists of the chief justice as chairman and a judge of the Supreme Court and "one other person who shall be or shall have been a judge of the Supreme Court" (s. 53 (1)), and no senator or member of Parliament may be appointed. Thus there is secured a freedom from political control, and it is a punishable offence to attempt directly or indirectly to influence any decision of the commission (s. 56).
The questions before their lordships are whether the statutory provisions for the appointment of members of the panel of the bribery tribunal otherwise than by the Judicial Service Commission conflict with s. 55 of the Constitution, and, if so, whether those provisions are valid.
In 1954 the Bribery Act was passed in order to meet a social need. It gave to the Attorney-General or officers authorised by him power to direct and conduct the investigation of any allegation of bribery, and certain powers for securing information and assistance. If there was a prima facie case, he was empowered to indict offenders who were not public servants before the ordinary courts. Offenders who were public servants might either be so indicted or be arraigned before a board of inquiry constituted from certain panels to which members were appointed by the Governor-General on the advice of the Prime Minister. It had to decide whether the accused was guilty and it could order the guilty to pay the amount of the bribe as a penalty. A finding of guilt resulted in automatic dismissal and certain disqualifications and incapacities.
The Bribery Act, 1954, was treated by the legislature as coming within s. 29 (4) of the Constitution which deals with any amendments to the Constitution, and there was endorsed on the bill, when it was presented for the royal assent, the necessary certificate of the Speaker. That Act also contained a section as follows:
"2(1) Every provision of this Act which may be in conflict or inconsistent with anything in the Ceylon (Constitution) Order in Council, 1946, shall for all purposes and in all respects be as valid and effectual as though that provision were in an Act for the amendment of that order in council enacted by Parliament after compliance with the requirement imposed by the proviso of sub-s. (4) of s. 29 of that order in council.
(2) Where the provisions of this Act are in conflict or are inconsistent with any other written law, this Act shall prevail."
...The Bribery Amendment Act 1958, swept away the boards of inquiry which dealt with public servants and created bribery tribunals for the trial of persons prosecuted for bribery with power to hear, try, and determine any prosecution for bribery made against any person before the tribunal. The Bribery Commissioner was brought into being and was empowered to prosecute persons before the tribunals. All the offences of bribery specified in Part 2 of the Act, punishable with rigorous imprisonment for a term not exceeding seven years or a fine not exceeding Rs. 5000 or both, became triable by the tribunals.....[T]he practical effect would be to supersede the court's jurisdiction in bribery cases to a large extent....
Counsel on behalf of the Bribery Commissioner argues that the members of the tribunal are not "judicial officers" and that therefore their appointment by the executive does not conflict with the constitutional provision that the appointment of judicial officers is vested in the Judicial Service Commission. He bases the contention on two main grounds. First he argues that the words "judicial officers" apply only to judges of the ordinary courts referred to in the Courts Ordinance, cap. 6, s. 3, and do not apply to those excluded from the operation of the section by the proviso which sets out various other or lesser tribunals, ending with the words "or of any special officer or tribunal legally constituted to try any special case or class of cases". If that argument were sound it might be open to the executive to appoint whom they chose to sit on any number of newly created tribunals which might deal with various aspects of the jurisdiction of the ordinary courts and thus, by eroding the courts' jurisdiction, render s. 55 valueless.
Section 55 (5) defines the expression "judicial officer" as meaning the holder of any judicial office but it does not include a judge of the Supreme Court or a commissioner of assize. By s. 3 (1) of the Constitution "judicial office" means any paid judicial office. Membership of the panels from which the bribery tribunals are constituted is expressly referred to in s. 41 of the Bribery Amendment Act, 1958 as an "office". "Each member of the panel shall, unless he vacates office earlier..." (s. 41 (2)). Vacating "office" is also referred to in sub-s. 41 (4) and sub-s. 41 (6). Both according to the ordinary meaning of words and according to the more precise tests applied by the House of Lords in Great Western Railway Co v. Bater ( 2 AC 1) membership of the panel is an office. Their lordships are unable to draw any inferences from the Courts Ordinance which would affect the plain meaning of s. 55 of the Constitution.
The second argument of counsel for the Bribery Commissioners is that, although membership of the panel is an office, it is not a "judicial" office, since the members are paid to be on the panel and are not paid as members of the tribunal. The Supreme Court rightly rejected this distinction. Clearly the members have the paid office of being on the panel, the functions of the office being the performance of the judicial duties of the bribery tribunal as and when are asked to sit.
There is therefore a plain conflict between s. 55 of the Constitution and s. 41 of the Bribery Amendment Act, 1958, under which the panel is appointed. What is the effect of this conflict? The Supreme Court has held that it renders s. 41 invalid. Counsel on behalf of the Bribery Commissioner however, contends that, since the Act has been passed by both Houses and received the royal assent, it is a valid enactment and has the full force of law, amending the Constitution if and in so far as necessary. If, he argues, there has been a defect in procedure, that does not make the Act invalid, since the Ceylon Parliament is sovereign and had the power to pass it; nor are the courts able to look behind the Act to see whether it was validly passed.
The voting and legislative power of the Ceylon Parliament are dealt with in s. 18 and s. 29 of the Constitution;
"18. Save as otherwise provided in sub-s. (4) s. 29 any question proposed for decision by either Chamber shall be determined by a majority of votes of the senators or members, as the case may be, present and voting"...
"29 (1) Subject to the provisions of this order, Parliament shall have power to make laws for the peace, order and good government of the Island.
"(2) No such law shall -- (a) prohibit or restrict the free exercise of any religion."
There follow (b), (c) and (d) which set out further entrenched religious and racial matters, which are not to be the subject of legislation. They represent the solemn balance of rights between the citizens of Ceylon, the fundamental conditions on which inter se they accepted the Constitution; and these are therefore unalterable under the Constitution.
"(3) Any law made in contravention of sub-s. (2) of this section shall, to the extent of such contravention, be void.
"(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).
Every certificate of the Speaker under this subsection shall be conclusive for all purposes and shall not be questioned in any court of law."
The Bribery Amendment Act, 1958, contained no section similar to s. 2 of the Act of 1954 nor did the bill bear a certificate of the Speaker. There is nothing to show that it was passed by the necessary two-thirds majority. If the presence of the certificate is conclusive in favour of such a majority, there is force in the argument that its absence is conclusive against such a majority. Moreover, where an Act involves a conflict with the Constitution, the certificate is a necessary part of the Act-making process and its existence must be made apparent. The fact that the 1958 bill did not have a certificate and was not passed by the necessary majority was not really disputed in the Supreme Court or before their lordships' Board, but it has been argued that the court, when faced with an official copy of an Act of Parliament, cannot enquire into any procedural matter and cannot now properly consider whether a certificate was endorsed on the bill. That argument seems to their lordships insubstantial, and it was rightly rejected by the Supreme Court. Once it is shown that an Act conflicts with a provision in the Constitution the certificate is an essential part of the legislative process. The court has a duty to see that the Constitution is not infringed and to preserve it inviolate. Unless therefore there is some very cogent reason for doing so, the court must not decline to open its eyes to the truth. Their lordships were informed by counsel that there were two duplicate original bills and that after the royal assent was added one original was filed in the registry where it was available to the court. It was therefore easy for the court, without seeking to invade the mysteries of Parliamentary practice, to ascertain that the bill was not endorsed with the Speaker's certificate.
The English authorities have taken a narrow view of the court's power to look behind an authentic copy of the Act. In the constitution of the United Kingdom, however, there is no governing instrument which prescribes the law-making powers and the forms which are essential to those powers. There was therefore never such a necessity as arises in the present case for the court to take any close cognisance of the process of law-making. In Edinburgh and Dalkeith Railway Co v Wauchope, however, Lord Campbell said "All that a court of justice can do is to look to the parliamentary roll". There seems no reasons to doubt that in early times, if such a point could have arisen as arises in the present case, the court would have taken the sensible step of inspecting the original. In the South African case of Harris v. Minister of the Interior, where a similar point arose, it appears that the court itself looked at the bill. Centlivres CJ said:
"The original which was signed by the Governor-General and filed with the registrar of this court bears the following endorsement of the Speaker: 'certified correct as passed by the joint sitting of both Houses of Parliament'..."
Moreover, the point on which Fernando J relied in the Supreme Court seems to their lordships unanswerable. When the Constitution lays down that the Speaker's certificate shall be conclusive for all purposes and shall not be questioned in any court of law, it is clearly intending that courts of law shall look to the certificate but shall look no further. The courts therefore have a duty to look for the certificate in order to ascertain whether the Constitution has been validly amended. Where the certificate is not apparent, there is lacking an essential part of the process necessary for amendment. The argument that by virtue of certain statutory provisions the subsequent reprint of an Act can validate an invalid Act cannot be sound. If Parliament could not make a bill valid by purporting to enact it, it certainly could not do so by reprinting it, however august the blessing that it gives to the reprint.
Counsel for the Bribery Commissioner further contended that, since the original Bribery Act, 1954, had on it a certificate, any amendment of that Act was automatically franked and did not need a certificate. The effect of that argument would be that serious inroads into the Constitution could be made without the necessary majority provided that they were framed as amendments to some quite innocuous Act which had borne a certificate. No authority was cited on this point. Their lordships feel no doubt that every amendment of the Constitution, in whatever form it may be presented, needs a certificate under s. 29 (4).
There remains the point which is the real substance of this appeal. When a sovereign Parliament has purported to enact a bill and it has received the royal assent, is it a valid Act in the course of whose passing there was a procedural defect, or is it an invalid Act which Parliament had no power to pass in that manner?
The strongest argument in favour of the Bribery Commissioner's contention is the fact that s. 29 (3) expressly makes void any Act passed in respect of the matters entrenched in and prohibited by s. 29 (2), whereas s. 29 (4) makes no such provision, but merely couches the prohibition in procedural terms. The commissioner's argument placed much reliance on the opinion of this Board in McCawley v. R. ( AC 691)....
[T]he Board in McCawley's case took the view, which commends itself to the Board in the present case, that a legislature has no power to ignore the conditions of law-making that are imposed by the instrument which itself regulates its power to make law. This restriction exists independently of the question whether the legislature is sovereign, as is the legislature of Ceylon, or whether the constitution is "uncontrolled", as the Board held the constitution of Queensland to be. Such a constitution can indeed be altered or amended by the legislature, if the regulating instrument so provides and if the terms of those provisions are complied with: and the alteration or amendment may include the change or abolition of those very provisions. The proposition which is not acceptable is that a legislature, once established, has some inherent power, derived from the mere fact of its establishment, to make a valid law by the resolution of a bare majority which its own constituent instrument has said shall not be a valid law unless made by a different type of majority or by a different legislative process. This is the proposition which is in reality involved in the argument. ...
In the present case... the legislature has purported to pass a law which, being in conflict with s. 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 s. 29 (4), the Ceylon legislature has not got the general power to legislate so as to amend its Constitution by ordinary majority resolutions,... but is rather... compelled to operate a special procedure in order to achieve the desired result.
The case of Attorney-General for New South Wales v. Trethowan also needs to be considered. The Constitution Act, 1902, of New South Wales was amended in 1929 by adding s. 7A to the effect that no bill for abolishing the legislative council (or repealing s. 7A) should be presented for the royal assent until it had been approved by a majority of electors voting on a submission to them made in accordance with the section. Since both the Acts of 1902 and 1929 were acts of the local legislature they were confined, so far as legislative power was concerned, by the Colonial Laws Validity Act, 1865. Without complying with the requirements of s. 7A both Houses passed bills respectively repealing s. 7A and abolishing the legislative council. The appeal was limited to the questions: "whether the Parliament of New South Wales has power to abolish the legislative council of the State or to alter its constitution or powers or to repeal s. 7A of the Constitution Act, 1902 except in the manner provided by the said s. 7A."
In holding that bills could not lawfully be presented until the requirements of s. 7A had been complied with, the Board relied on s. 5 of the Colonial Laws Validity Act, 1865. That section provided that
"every representative legislature shall in respect of the colony under its jurisdiction have... full power to make laws respecting the constitution, powers and procedure of such legislature; provided that such laws shall have been passed in such manner and form as may from time to time be required by any Act of Parliament, letters patent, Order in Council, or colonial law for the time being in force in the colony."
The effect of s. 5 of the Colonial Laws Validity Act, 1865, which is framed in a manner somewhat similar to s. 29 (4) of the Ceylon Constitution was that where a legislative power is given subject to certain manner and form, that power does not exist unless and until the manner and form is complied with....
The careful judgment of Centlivres CJ, with which the four other members of the Appellate Division of the South African Supreme Court concurred, in the case of Harris v. Minister of the Interior expresses the same point of view.
The legislative power of the Ceylon Parliament is derived from s. 18 and s. 29 of its Constitution. Section 18 expressly says "Save as otherwise provided in sub-s. (4) of s. 29". Section 29 (1) is expressed to be "subject to the provisions of this order", and any power under s. 29 (4) is expressly subject to its proviso. Therefore in the case of amendment and repeal of the Constitution the Speaker's certificate is a necessary part of the legislative process and any bill which does not comply with the condition precedent of the proviso, is and remains, even though it receives the royal assent, invalid and ultra vires. No question of sovereignty arises. A parliament does not cease to be sovereign whenever its component members fail to produce among themselves a requisite majority, e.g., when in the case of ordinary legislation the voting is evenly divided or when in the case of legislation to amend the constitution there is only a bare majority, if the constitution requires something more. The minority are entitled under the Constitution of Ceylon to have no amendment of it which is not passed by a two-thirds majority. The limitation thus imposed on some lesser majority of members does not limit the sovereign powers of parliament itself which can always, whenever it chooses, pass the amendment with the requisite majority....
Their lordships therefore are in accord with the view so clearly expressed by the Supreme Court; "that the orders made against the respondent are null and inoperative on the grounds that the persons composing the bribery tribunal which tried him were not lawfully appointed to the tribunal." They will accordingly humbly advise Her Majesty to dismiss this appeal.