UDALAGAMA, .C V J v. WALPITA, S.W., J.

• Jurisdiction: Sri Lanka
• Date: 19 August 1975
• Type of Document: Case report

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1975 Present : G. T. Samerawickrame, J. (Chairman)

C V. Udalagama, J., and S. W. Walpita, J.
In Re.

1. F. J. C. de Mel (2nd Suspect)

2. Thelma de Mel (3rd Suspect)

Case No. 11/75 C. J. C. (21)

Criminal Justice Commission-Foreign Exchange Offences-Suspects found guilty under S. 51 (4) of the Exchange Control Act-Subse-quent amendment of S. 51 (4) by S. 13 of the Exchange Control (Amendment) Law No. 39 of 1973- whether the suspects liable to punishment under original Act or under the Amending Law providing for enhanced punishment-Interpretation Ordinance S. 6 (3)-Rule of Statutory interpretation against retrospective operation of Laws-Statutes affecting substantive law always to be construed prospectively unless by' express words or necessary implication-retrospective operation is provided for-Question whether the amending law No. 39 of 1973 which enhanced the punishment provided for in the original Act is a matter of procedure or substantive law.

The two suspects were found guilty on their own plea of violating certain Exchange Control Offences punishable under S. 51 (4) of, the Exchange Control Act The offences were committed' between the first day of January 1970 and the 30th day of June 1971. At the time the offences were committed they were liable to punishment under S. 51 (4) of the original Exchange Control Act which provided that on conviction a District Court may impose a term of two years imprisonment or fine or both. Section 51 (4) of the original Act was amended by S. 13 of the Exchange Control (Amendment) Law No. 39 of 1973 which increased the punishment to a term not exceeding five years or to both imprisonment and fine.

Further, by S. 15 (b) of the Criminal Justice Commissions Act, it was provided that, if the Commission is satisfied that any person has committed any exchange control offence, it is empowered and required to find him guilty and sentence him to any punishment to which he might have been sentenced, if he had been tried and convicted by a District Court or a Magistrate's Court.

Held, (i) That, in keeping with the cardinal rule of Statutory interpretation that generally statutes are prospective and that they apply only to cases and facts which come into existence after they were passed, the provision for enhanced punishment introduced by the Amending Law No. 39 of 1973 is not applicable to the punishment of offences committed before its enactment. Accordingly, the punishment provided for in the original Act, namely a term of two years' imprisonment or fine or both was applicable to the present case.

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(ii) The Interpretation Ordinance Section 6 (3) provides that, whenever any written Law repeals either in whole or part a former written Law, such repeal shall not, in the absence of any express provision to that effect, affect or be deemed to have affected inter alia any offence committed under the repealed written Law. The Exchange Control (Amendment) Law repealed Sub-Section 4 of S. 51 and substituted a new Sub-Section. Accordingly, S. 6 (3) of the Interpretation Ordinance would apply and therefore the punishment incurred at the time of the commission of the offence-was the punishment that could be imposed.

(iii) That the provision of Law which enhances the punishment for an offence is a question of substantive Law, for the existence and measure of Criminal liability are matters pertaining to the end and purpose of the administration of Justice. Accordingly, the presumption against the retrospective operation of penal Laws applies unless, by express words or necessary and distinct implication such operation is provided for. On this view the Amending Law which provides for increased punishment for an existing offence is not intended to apply to offences committed before its enactment.

(iv) The Exchange Control (Amendment) Law states: "Any person who commits an offence under the Act shall on conviction ...........be liable to imprisonment .............". The word " commits "prima facie refers to the present and the future. Under this provision the conditions for liability are two-fold namely, the committing of an offence on or after the date of the enactment, and a conviction. Far from being express language indicating that the provision is retrospective, the language used indicates the contrary.

D. P. P. v. Lamb (1941) 2 All. E.R. 499 distinguished.

Mr. Shiva Pasupati, Attorney General with Mr. E. D. Wikremanayake, Deputy Solicitor-General and Mr. Sunil de Silva, Senior State Counsel and Mr. Lal Wimalaratne, State Counsel for the State.

Mr. H. L. de Silva, for the 1st Suspect, Mr. Sam J. C. Kadiragamar, for the 2nd and 3rd Suspects, and Mr, K. N. Choksy, as Amicus Curiae.

August 19th, 1975

ORDER

The two suspects were charged and found guilty on their own plea of offences punishable under Section 51 (4) of the Exchange Control Act committed between the 1st day of January, 1970 and the 30th day of June, 1971. At the time when the offences were committed the relevant provision in Section 51(4) read :-

" (4) Any person who commits an offence against this Act shall-

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(a) upon conviction after summary trial before a Magistrate, be liable to imprisonment of either description for a term not exceeding six months or to a fine, or to both such imprisonment and fine, or

(b) on conviction before a District Court, be liable to imprisonment of either description for a term not. exceeding two years or to a fine, or to both such, imprisonment and fine ;"

By Section 13 of the Exchange Control (Amendment) Law No. 39 of 1973 Section 51 was amended, inter alia, as follows :-

" (2) by the repeal of subsection (4) thereof and the substitution therefor, of the following subsection :-

' (4) Any person who commits an offence under this Act shall-

(a) on conviction after summary trial before a Magistrate, be liable to imprisonment of either description for a term not exceeding, eighteen months, or to both such imprisonment and a fine ;

(b) on conviction before a District Court, be liable to imprisonment of either description for a term not exceeding five years, or to both such imprisonment and a fine ; "

By Section 15 (b) of the Criminal Justice Commissions Act where this Commission is satisfied that any person has committed any offence it is empowered and required to find him guilty and' sentence him to any punishment which he might have been sentenced if he had been tried and convicted by a District Court or a Magistrate's Court. The question arises whether it is the provision introduced by the amending Law No. 39 of 1973 or the provision in the original Act which applies in respect of the offences committed by the suspects.

It is a well known rule of interpretation that generally statutes-are prospective and operate only on cases and facts which come-into existence after they were passed. The rule is based on an ancient maxim which is set out in Justinian's Code 1-14-7 and is expressed in Voet 1-3-17 thus : -

" It is certain further that laws give shape to affairs of the future, and are not applied retrospectively to acts of the past"

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This rule is also part of the, English law. Maxwell Interpretation of Statutes (12th Ed.) p. 215 states-

" Upon the presumption that the legislature does not intend what is unjust rests the leaning against giving certain statutes a retrospective operation. Nova constitutio futuris formam imponere debet, non praeteritis. They are cons-. trued as operating only in cases or on facts which come into existence after the statutes were passed unless a retrospective effect be clearly intended. It is a fundamental rule of English law that no statute shall be construed to have a retrospective operation unless such a construction appears very clearly in the terms of the Act, or arises by necessary and distinct implication."

The rule and the exceptions to it are set out thus in 36 Simmonds p. 423 paragraph 644-

"The General rule is that all statutes, other than those which are merely declaratory, or which relate only to matters of procedure or of evidence, are prima facie prospective ; and retrospective effect is not to be given to them unless by express words or necessary implication, it appears that this was the intention of the legislature."

The rule has been consistently applied by our Courts, see e.g. Appuhamy v. Brumpy, 16 N.L.R. 59, Akilandanayaki v. Sothinagaratnam, 53 N.L.R. 385. The Queen vs (1) Fernando (2) Carolis 61 N.L.R. 395, United Industrial, Local Government and General Workers Union vs. Independent Newspapers Ltd. 75 N.L.R. 241 -at 243.

The next matter we have to consider is whether the rule applies to a provision of law which enhances the punishment for an offence or whether such a provision only deals with a matter of procedure. We were referred by Mr. H. L. de Silva, who addressed us as amicus, to an illuminating exposition of the point by Salmond. In his book on Jurisprudence (11th Ed.) p. 503, it is stated-

"............rules defining the remedy may be as much a part of the substantive law as are those which define the right itself. No one would call the abolition of capital punishment, for instance, a change in the law of criminal procedure. The substantive part of the criminal law deals, not with crime alone, but with punishment also. So in the civil law,

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the rules as to the measure of damages pertain to the substantive law, no less than those declaring what damage is actionable ; and rules determining the classes of agreements which will be specifically enforced are as clearly substantive as are those determining the agreements which will be enforced at all. To define procedure as concerned not with rights, but with remedies, is to confound the remedy with the process by which it is made available.

What then, is the true nature of the distinction ? The law of procedure may be defined as that branch of the law which governs the process of...