Notes of Cases
| Published date | 01 November 1964 |
| Date | 01 November 1964 |
| DOI | http://doi.org/10.1111/j.1468-2230.1964.tb02252.x |
NOTES
OF
CASES
THE
SOVEREIGNTY
OF
PARLIAMENT
AND
THE
ENTRENCHMENT
OF
LEGISLATIVE
PROCESS
THE
case of
The Bribery Commissioner
v.
Ranasinghe
represents
an important stage in the process of delimitation of the legal doc-
trine of Parliamentary Sovereignty, as representing a recognition
by a British court of a principle that the powers of a sovereign
legislature may be legally limited by
‘‘
manner and form
”
requirements.
The signscant facts were as follows: The Constitution of
Ceylon can only be amended in accordance with section
29
(4)
thereof, which provides that
:
Parliament may amend or repeal any of the provisions of this
Order,
or
of any other Order
. . .
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.
. .
.
The Bribery Act,
1954,
established a system of tribunals for trial
of
public servants on charges
of
corruption and, since this was
thought to be an amendment to the Constitution in that the
members of the tribunals were not appointed by the Judicial Service
Commission (the constitutional body charged by section
55
of the
Constitution with the duty
of
appointing judges), this Act was
passed by the special procedure prescribed by section
29
(4).
This
Act also contained a provision as follows
:
(1)
Every provision of this Act which may be in conflict
or
inconsistent with anything in the Ceylon (Constitution) Order
. . .
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.
. .
.
(2)
Where the provisions of this Act are in conflict
or
are
inconsistent with any other written law, this Act shall
pr evaii
.
By the Bribery Amendment Act,
1958,
Bribery Tribunals were
set up to hear all prosecutions
for
bribery, which were thenceforth
1
[1964]
2
W.L.R.
1301; [1964]
2
All
E.R.
785.
2
Ceylon (Constitution) Order
in
Council, 1946.
86
amended
by
Ceylon (Indepen-
dence) Order
in
Council, 1947; S.R.
&
0.
&
S.I.Rev.
1948,
Vol.
3,
p.
560.
705
706
THE
MODERN
LAW
BEVIEW
VOL.
27
no
longer triable by the ordinary courts; and the members of the
Bribery Tribunals were to be appointed by the Governor-General
and not by the Judicial Service Commission. This Act was passed
by the ordinary legislative process and not by the special procedure
prescribed by section
29
(4)
of the Constitution. The respondent
to the present appeal had been convicted and sentenced by a
Bribery Tribunal thus constituted and the question in issue was
whether the members of the tribunal were lawfully appointed.
It
was held by the Judicial Committee of the Privy Council,
affirming the Supreme Court of Ceylon, that the members of the
tribunal were judicial officers and that they were not lawfully
appointed, since the Act under which they were appointed was in
conflict with the provisions of the Constitution relating to the
appointment of judicial officers and, not having been passed by the
section
29
(4)
procedure, was void to the extent of such conflict.
Had the Act been passed by the requisite two thirds majority and
the Speaker had certified to this effect, the Constitution would have
been varied
pro
tanto,
but not otherwise, and this was unaffected
by the circumstance that the Act
of
1958
was expressed to be an
amendment of the Act of
1954,
which was itself passed by the
section
29
(4)
procedure.
The Board faced up to the essential question in arriving at this
conclusion as follows
:
"
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
?
"
It
was argued for the Commissioner (the official appointed under the
Act to prosecute bribery charges) that
if
an Act had been passed by
both Houses
of
Parliament and received the royal assent
it
was a
valid enactment and had the full force of law; a defect in procedure
did not make the Act invalid since the Ceylon Parliament is
a
sovereign legislature.
''
a legislature has
no
power to ignore the conditions of law-
making that are imposed by the instrument which itself regu-
lates the power to make law. This restriction exists inde-
pexidently of the question whether a legislature
is
sovereign.
. .
.
A constitution can indeed be altered
or
amended by the legisla-
ture
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 these 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
The opinion of the Board was that
8
[1964]
2
W.L.R.
1301
at
p.
1309; [1964]
2
All
E.R.
785
at
p.
791
D.
Nov.
1964
NOTES
OF
CASES
707
instrument has said shall not be a valid law unless made by a
different type of majority
or
by a different legislative process.”
*
In saying this, the Board adopted the reasoning of the Supreme
Court of South Africa in
Harris
v.
The Minister
of
the Interior
and clearly took
it
that this was the point also in
Att.-Gen.
#or
New
South Wales
v.
TrethowanB
(although the New South Wales
legislature was not a
“
sovereign
”
legislature like those of South
Africa and Ceylon).
The importance of this case is in the circumstance that this is
the first time that the
‘‘
manner and form
”
question in relation to
a sovereign legislature has been before the Judicial Committee; and
it
is interesting to recall that at the time of
Harris
v.
The Minister
of
the Interi~r,~
it
was commonly thought that, had that case gone
to the Privy Council,
it
would have gone the other way, under the
weight
of
opinion favouring the classical form of the doctrine of
Parliamentary Sovereignty. The case represents judicial support
for
what may be termed the JenningsIFriedmann school as against
the WadeIDicey school.8
Two well-known quotations point out the problem and indeed
the solution now adopted.
R.
T.
E.
Latham:
“
Where a purported
sovereign is anyone but a single actual person, the designation of
him must include the statement of rules for the ascertainment of his
will, and these rules,
since their observance is
a
condition
of
the
validity
of
his
legislation,
are rules of law logically prior to him.”
’
Sir
Owen Dixon, discussing whether the United Kingdom
Parliament could repeal by the ordinary process of legislation an
Act to protect the House of
Lords
from abolition without obtaining
a referendum of the electors, the Act itself being similarly protected
:
“
If
[such a Bill] did receive the royal assent notwithstanding
the statutory inhibition
.
.
.
the courts might be called upon
to consider whether the supreme legislative power in respect
of the matter had in truth been exercised
in the manner
required
for
its authentic expression.”
lo
It
is submitted that the following conclusions of
a
general
character may now be drawn from the decision
of
the Board in
The Bribery Commissioner
v.
Ranasinghe.
4
[1964] 2
W.L.R.
1301
at
foot
of
p.
1310
and p.
1311; [1964] 2
All E.R.
785
at p.
792
D-F.
5
1952 (2)
S.A.
428
(A.D.);
[1952]
1
T.L.R.
1245.
0
[1932]
A.C.
526.
7
1952 (2)
S.A.
428
(A.D.);
[1952]
1
T.L.R.
1245.
8
W.
I.
Jennings,
The Law and
the
Constitution
(5th
ed.), Chap.
IV
et
seq.;
W.
Friedmann,
I‘
Trethowan’s Case and,;the Limits
of
Legal Change
”
(1950)
24
Au8t.L.J.
103;
H.
W.
R. Wade, The
Basis
of
Legal Sovereignty”
[1955]
Camb.L.J.
172;
A.
V. Dicey,
The
Law
of
the Constitution
(10th
ed.),
Pt.
I.
9
The Law and
the
Commonwealth,
Vol.
I,
Survey
of
British
Commonwealth
Affairs
(ed. Hancock,
1937),
pp.
623-524.
Emphasis added.
These are the leading, but not by any means the only contenders.
10
Trethowan
v.
Peden
(1931) 44
C.L.R.
394
at p.
426.
Emphasis added.
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