S.29 of the Ceylon (Constitution) Order in Council 1946 gave the Ceylon Parliament power to make laws for the peace, order and good government of the island. S.29(4) gave it the power to ‘amend or repeal any of the provisions of this Order’; but provided that no Bill for amendment or repeal should be presented for the Royal Assent unless it was endorsed with a certificate of the Speaker, which was to be conclusive for all purposes that the Bill had been passed by a two-thirds majority of the members of the House of Representatives. The appellant was convicted of a bribery offence before a tribunal created by a provision of the Bribery Amendment Act 1958, which conflicted with a provision of the Constitution. The 1958 Act was not endorsed with the requisite Speaker’s certificate and was not shown to have been passed by a two-thirds majority.
Held: The orders made against the appellant were null and void. The persons composing the tribunal had been appointed under an invalid statute.
Lord Pearce said: ‘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 passages he quoted from McCawley’s case: ‘showed clearly that the 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 these very provisions. But 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.’ and ‘No question of sovereignty arises. A parliament does not cease to be sovereign whenever its component members fail to produce among them 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 power of Parliament itself which can always, whenever it chooses, pass the amendment with the requisite majority.’
Lord Pearce rejected the proposition 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.’
Lord Pearce, Viscount Radcliffe, Lord Evershed, Lord Morris of Borth-y-Gest, Lord Hodson
[1964] 2 WLR 1301, [1965] AC 172, [1964] 2 All ER 785, [1964] UKPC 1, [1964] UKPC 20
Bailii, Bailii
eylon (Constitution) Order in Council 1946
Commonwealth
Cited by:
Cited – Regina on the Application of Jackson and others v HM Attorney General CA 16-Feb-2005
The applicant asserted that the 2004 Act was invalid having been passed under the procedure in the 1949 Act, reducing the period by which the House of Lords could delay legislation; the 1949 Act was invalid, being delegated legislation, had used the . .
Cited – Jackson and Others, Regina (on the Application of) v Her Majesty’s Attorney General Admn 28-Jan-2005
The 2004 Act had been passed without the approval of the House of Lords and under the provisions of the 1911 Act as amended by the 1949 Act. The 1949 Act had used the provisions of the 1911 Act to amend the 1911 Act. The claimant said this meant . .
Cited – Jackson and others v Attorney General HL 13-Oct-2005
The applicant sought to challenge the 2004 Hunting Act, saying that it had been passed under the provisions of the 1949 Parliament Act which was itself an unlawful extension of the powers given by the 1911 Parliament Act to allow the House of . .
Cited – Manuel and Others v Attorney-General; Noltcho and Others v Attorney-General ChD 7-May-1982
The plaintiffs were Indian Chiefs from Canada. They complained that the 1982 Act which granted independence to Canada, had been passed without their consent, which they said was required. They feared the loss of rights embedded by historical . .
Cited – Manuel and Others v HM Attorney General CA 30-Jul-1982
The plaintiffs as representatives of the Indian Tribes of Canada sought declarations that the 1982 Act which provided for the independence of Canada was invalid. They appealed the strike out of their claims, saying that they had not been consulted . .
Cited – Liyanage and others v The Queen PC 2-Dec-1965
liyanagePC196502
The defendants appealed against their convictions for conspiracy to wage war against the Queen, and to overawe by criminal force the Government of Ceylon. It was said that the description of the offence committed had been redefied after the . .
Lists of cited by and citing cases may be incomplete.
Constitutional, Commonwealth
Leading Case
Updated: 11 November 2021; Ref: scu.222716
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