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JOHN JOSEPH AKAR
V.
ATTORNEY GENERAL OF SIERRA LEONE
PRIVY COUNCIL
15, 16, 17, 23 APRIL, 30 JUNE 1969
2PLR/1969/9 (PC)
OTHER CITATION(S)
2PLR/1969/9 (PC)
[1969] 3 ALL E.R. 384
LEX (1969)—ALL E.R. 384
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BEFORE THEIR LORDSHIPS:
LORD MORRIS OF BORTH-Y-GEST
LORD HODSON
LORD GUEST
LORD WILBERFORCE AND
SIR GORDON WILLMER
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BETWEEN
JOHN JOSEPH AKAR — Appellant
AND
ATTORNEY GENERAL OF SIERRA LEONE — Respondent
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ORIGINATING COURT(S)
1. COURT OF APPEAL OF SIERRA LEONE
2. SUPREME COURT OF SIERRA LEONE (Chief Justice, Presiding)
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REPRESENTATION
R. Millner QC and J. H. Smythe (of the Sierra Leone Bar) — for the Appellant
M. P. Solomon and E. Cotran— for the Respondent
T. L. WILSON AND CO. — for the Appellant
Hatchett Jones AND Co. — for the Respondent
S. A. Hatteea Esq. Barrister
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ISSUES FROM THE CAAUSE(S) OF ACTION
CONSTITUTIONAL AND HUMAN RIGHTS — COMMONWEALTH:- Sierra Leone — Civil Rights and Liberties — Discrimination — Person not of negro African descent born in Sierra Leone acquiring citizenship at time of independence — Amendment of Constitution retrospectively to limit citizenship to persons of negro African descent — Whether discrimination on ground of race — Sierra Leone (Constitution) Order in Council 1961 (S. I 1961 No 741), Sch 2, s 1, s 23, s 43 in review
CONSTITUTIONAL AND HUMAN RIGHTS — COMMONWEALTH:- Sierra Leone — Legislation — Special manner and form — Endorsement on Act by clerk of House of Representatives — Act endorsed that it had been passed but no reference made to special manner and form — Whether to be inferred that it was not passed in accordance with special manner and form.
CONSTITUTIONAL AND HUMAN RIGHTS — COMMONWEALTH:- Legislation — Validity — Reference in Act to provisions of earlier void Act — Effect
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CASE SUMMARY
ORIGINATING FACTS
The appellant was born in 1927 in the former protectorate of Sierra Leone of an indigenous mother and a Lebanese father who was born and bred in Senegal, but who had lived in Sierra Leone for the last 56 years, and never been to Lebanon. On the attainment of independence by Sierra Leone on 27 April 1961 the appellant by virtue of s 1(1) of the Constitution became a citizen of Sierra Leone. Act No 12 of 1962, by s 2a, purported to amend the Constitution retrospectively to limit citizenship to persons of negro African descent. This, by the definition of the term, excluded the appellant. By s 23 of the Constitution, laws discriminating, inter alia, on the ground of race, were prohibited except, inter alia, in cases where a disability imposed “having regard to its nature and to special circumstances pertaining to [persons on whom it was imposed, was] reasonably justifiable in a democratic society”. Section 43(3) of the Constitution required a two-thirds vote in the House of Representatives of Sierra Leone for the validity of constitutional amendments. The endorsement of the Clerk of the House of Representatives on Act No 12 of 1962 did not record that it had been passed in such a way but simply that it had been passed. Act No 39 of 1962 (passed in accordance with a further special procedure) purported to amend s 23b of the Constitution to allow discriminatory laws “for the limitation of citizenship of Sierra Leone to persons of negro African descent as defined in subsection (3) of section 1 of this Constitution”. The Act referred also to s 1(4) of the Constitution. Both sub-s (3) and sub-s (4) of s 1 had purportedly been inserted by Act No 12 of 1962.
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DECISION(S) OF THE PRIVY COUNCIL
Held that:–
(i) Act No 12 of 1962 was unconstitutional; it was discriminatory within the meaning of s 23 of the Constitution since different treatment was accorded to different people and the differentiation was attributable wholly or mainly to respective descriptions by race (see p 388, letter b, and p 394, letter f post);
(ii) (Lord Guest dissenting) there were no “special circumstances” within the meaning of s 23 to justify the law; special circumstances had to be additional to differences of race to satisfy the section (see p 389, letters d and e, post);
(iii) it would not be inferred from the endorsement on the Act that it had been passed only in the ordinary manner (see p 391, letters g and h, and p 394, letter d, post);
(iv) Act No 39c of 1962 did not impliedly re-enact the provision of s 2 of Act No 12; since Act No 12 was invalid its provisions were to be treated as having been non-existent and Act No 39, insofar as it relied on provisions of Act No 12, was meaningless and of no effect (see p 392, letter i, to p 393, letters a and b, post).
Quaere: whether Act No 12 of 1962 was “reasonably justifiable in a democratic society” within the meaning of s 23(4)(f)(see p 389, letter c, post).
Observations on the constitutionality and effect of retrospective legislation (see p 391, letter i, to p 392, letter d, p 393, letters c to h, and p 394, letter d, post)
Appeal allowed.
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MAIN JUDGMENT
Appeal
This was an appeal by John Joseph Akar against the order of the Court of Appeal of Sierra Leone dated 5 April 1968 allowing an appeal by the respondent, the Attorney General of Sierra Leone, from the judgment of the Chief Justice of the Supreme Court of Sierra Leone, dated 26 October 1967 who held that certain purported amendments of the Constitution of Sierra Leone relating to citizenship were ultra vires the Constitution and void. The facts are set out in the opinion of Lord Morris Of Borth-Y-Gest.
30 June 1969. The following judgments were delivered.
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LORD MORRIS OF BORTH-Y-GEST.
On 27 April 1961 Sierra Leone attained fully responsible status within the Commonwealth. On that date by virtue of the Sierra Leone Independence Act 1961 the former colony and the former protectorate together became part of Her Majesty’s dominions under the name of Sierra Leone. Immediately before that date the Constitution of Sierra Leone, which was set out in Sch 2 to the Sierra Leone (Constitution) Order in Council 1961 (SI 1961 No 741) came into effect in Sierra Leone.
It is beyond question that on 27 April 1961 the appellant became a citizen of Sierra Leone. That was the result of s 1(1) of the Constitution which provides as follows:
“Every person who, having been born in the former Colony or Protectorate of Sierra Leone, was on the twenty-sixth day of April, 1961, a citizen of the United Kingdom and Colonies or a British protected person shall become a citizen of Sierra Leone on the twenty-seventh day of April, 1961:
“Provided that a person shall not become a citizen of Sierra Leone by virtue of this subsection if neither of his parents nor any of his grandparents was born in the former Colony or Protectorate of Sierra Leone.”
The appellant was born in the former protectorate on 20 May 1927. He was on 26 April 1961 a British protected person. He was born of an indigenous Sierra Leone mother (who belonged to the Temne tribe) and a Lebanese father. His father who was born and bred in Senegal and who had never been to Lebanon had lived in Sierra Leone for a period of 56 years prior to the commencement of the proceedings. At the time of the institution of the proceedings the appellant lived in Freetown and was the substantive director of broadcasting and director of the National Dance Troupe and secretary of the Hotels and Tourist Board.
The central issues which are raised in the proceedings concern the validity or otherwise of certain enactments which, if valid, materially affect (and undoubtedly adversely affect) the appellant’s status as a citizen. In his action the appellant claimed a declaration-
“that the Amendments to Section (1) of the Constitution by Act No. 12 of 1962 and Act No. 52 of 1965 are ultra vires the Constitution and are void.”
It was held by the learned Chief Justice in the Supreme Court that certain purported amendments of the Constitution, ie, those resulting from Act No 12 of 1962 and Act No 39 of 1962, were ultra vires the Constitution and so were null and void. A different view was taken in the Court of Appeal who reversed the decision of the learned Chief Justice. Appeal is now brought from the judgment and order of the Court of Appeal.
The first Act to be considered is the Constitution (Amendment)(No 2) Act 1962 which was Act No 12 of 1962. For convenience their Lordships will refer to it as “Act No 12”. It was entitled “An Act to Provide for the Amendment of Certain Sections of the Constitution”. It was assented to by the Governor-General in Her Majesty’s name on 17 March 1962. By s 1 it is provided that it “shall be deemed to have come into operation on the 27th day of April 1961”. At the end of the Act are the statements:
“Passed in the House of Representatives this 17th day of January, in the year of Our Lord one thousand nine hundred and sixty-two.
S V Wright
Clerk of the House of Representatives.”
“THIS PRINTED IMPRESSION has been carefully compared by me with the Bill which has passed the House of Representatives and found by me to be a true and correctly printed copy of the said Bill.
S V Wright
Clerk of the House of Representatives.”
Section 2 is of prime importance. It is as follows:
“2. Section 1 of the Constitution is hereby amended-
(a) by the insertion immediately after the words `every person’ in the first line of subsection (1) thereof of the words `of negro African descent’; and
(b) by the addition at the end thereof of the following new subsections-
`(3) For the purposes of this Constitution the expression “person of negro African descent” means a person whose father and his father’s father are or were negroes of African origin.
`(4) Any person, either of whose parents is a negro of African descent and would, but for the provisions of subsection (3), have been a Sierra Leone citizen, may, on making application in such manner as may be prescribed, be registered as a citizen of Sierra Leone, but such person shall not be qualified to become a member of the House of Representatives or of any District Council or other local authority unless he shall have resided continuously in Sierra Leone for twenty-five years after such registration or shall have served in the Civil or regular Armed Services of Sierra Leone for a continuous period of twenty-five years.’”
If the amendments to s 1 of the Constitution by Act No 12 are valid the results are startling. As a result of the carefully designed provisions of the new Constitution which came into operation immediately before 27 April 1961 the appellant became a citizen of his country on that date. The provisions of Act No 12 would now deny him and deprive him of that citizenship. If the Act, apart from s 1, was valid, and if s 1 could also have validity then the amendment of the Constitution would be deemed to have come into operation on 27 April 1961 so that as a result of such deeming process the appellant would be denied his citizenship as on the very day that he actually acquired it. Yet in truth and in fact he would have been a citizen in the intervening period between 27 April 1961 and 17 March 1962. The reason for this purported retroactive deprivation would be that he was not a person “of negro African descent”. In turn the reason would be that his father and his father’s father could not be described as “negroes of African origin”. No occasion now arises to consider the meaning of the vague words “of African origin”. It is conceded that it was common ground that the appellant’s father was not a “negro”. If the amendments to s 1 of the Constitution by Act No 12 were valid then under the provisions of the new s 1(4) the appellant would be entitled to register as a citizen of a status aptly described by the learned Chief Justice as “second class”. He could be a citizen who would have to wait for 25 years (and also during that period be continuously resident or continuously serving in the civil or regular armed services) before he would be qualified to become a member of the House of Representatives or of any district council or other local authority.
When the appellant was faced with the personal situation arising for him on the passing of Act No 12 he did in fact decide to register. It is not now suggested that by so doing he in any way debarred himself from making effective challenge to the validity of the legislation.
Their Lordships are not concerned with the wisdom or desirability or fairness of passing such a measure as Act No 12 but only with its validity. To that aspects their Lordships now turn.
One chapter of the Constitution (ch II) bears the heading “Protection of Fundamental Rights and Freedoms of the Individual”. Section 11 contains declarations of the fundamental rights and freedoms of the individual to which “every person in Sierra Leone” is entitled. Later provisions of the chapter were designed for the purpose of affording protection to those rights and freedoms. Thus there was to be protection: (a) of the right to life;(b) from arbitrary arrest or detention;(c) of freedom of movement;(d) from slavery and forced labour;(e) from inhuman treatment;(f) from deprivation of property;(g) for privacy of home and other property;(h) of a nature that would secure the protection of the law;(i) of freedom of conscience;(j) of freedom of expression;(k) of freedom of assembly and association; and (1) from discrimination on the grounds of race or of similar grounds.
One of the main grounds of the appellant’s attack on s 2 of Act No 12 was based on the last of these. He became a citizen of a country whose Constitution proclaimed that there should be no discrimination on the grounds of race. Yet it is just such forbidden discrimination which, so the appellant contends, constitutes the very basis and essence and substance of Act No 12. To lack “negro African descent” as in that Act defined will bring about deprivation and disability. It is s 23 of the Constitution which gives protection from discrimination on the grounds of race. Subsection (1), sub-s (2) and sub-s (3) of s 23 are as follows:
“(1) Subject to the provisions of subsections (4),(5) and (7) of this section, no law shall make any provision which is discriminatory either of itself or in its effect.
“(2) Subject to the provisions of subsections (6),(7) and (8) of this section, no person shall be treated in a discriminatory manner by any person acting by virtue of any written law or in the performance of the functions of any public office or any public authority.
“(3) In this section, the expression `discriminatory’ means affording different treatment to different persons attributable wholly or mainly to their respective descriptions by race, tribe, place of origin, political opinions, colour or creed whereby persons of one such description are subjected to disabilities or restrictions to which persons of another such description are not made subject or are accorded privileges or advantages which are not accorded to persons of another such description.”
It is to be observed that sub-s (1) is direct and prohibitive; subject to certain exceptions “no law shall make any provision which is discriminatory”. No provision which offends can therefore be valid.
The first question which arises is whether the content of s 2 of Act No 12 is “discriminatory” within the meaning of s 23(3) of the Constitution. As to this it is beyond dispute and indeed it was very properly conceded that the adoption of the word “negro” involved a description by race. Their Lordships have no doubt that the effect of Act No 12 was discriminatory. Different treatment would be afforded to different people. Some persons but not others would have disabilities or restrictions. The differentiations would be attributable wholly or mainly to respective descriptions by race. It is not suggested that the exceptions set out in sub-s (5), sub-s (6), sub-s (7) or sub-s (8) of s 23 have applicability in this case. It is said, however, that the exception set out in sub-s (4)(f) is applicable and that the result is that the general prohibition against discrimination (see sub-s (1)) does not apply.
Although only sub-s (4)(f) is said to be applicable its context will best be seen if the subsection is set out. It is as follows:
“(4) Subsection (1) of this section shall not apply to any law so far as that law makes provision-
(a) for the appropriation of revenues or other funds of Sierra Leone or for the imposition of taxation (including the levying of fees for the grant of licences); or
(b) with respect to persons who are not citizens of Sierra Leone; or
(c) with respect to adoption, marriage, divorce, burial, devolution of property on death or other matters of personal law; or
(d) for the application in the case of members of a particular race or tribe of customary law with respect to any matter to the exclusion of any law with respect to that matter which is applicable in the case of other persons; or
(e) for authorising the taking during a period of public emergency of measures that are reasonably justifiable for the purpose of dealing with the situation that exists during that period of public emergency; or
(f) whereby persons of any such description as is mentioned in subsection (3) of this section may be subjected to any disability or restriction or may be accorded any privilege or advantage which, having regard to its nature and to special circumstances pertaining to those persons or to persons of any other such description, is reasonably justifiable in a democratic society.”
The question which falls to be considered therefore is whether the provisions of sub-s (4)(f) gave warrant for the making of the discriminatory provisions contained in Act No 12. It may be accepted that questions as to who are to be citizens of a country are normally questions for the country to decide. When Sierra Leone on 27 April 1961 attained fully responsible status it attained it with a Constitution, no doubt very carefully planned and negotiated, which set out who were to be its citizens and which contained detailed and specific provisions in regard to making alterations of the Constitution and also specific provisions giving certain protections to “every person”(and a fortiori to every citizen) in Sierra Leone; one of such protections was from discrimination on the ground of race. Their Lordships will later refer to the provisions enabling alterations of the Constitution to be made. At the date when Act No 12 was passed no alteration of s 23 had been made. So the question which arises is whether sub-s (4)(f) gave any authority for the passing of Act No 12. Immediately before it was passed the appellant was, under the terms of the Constitution, a Sierra Leone citizen. He had been one throughout the period since 27 April 1961. If the Act is valid then because his father and his father’s father could not be described as “negroes” of African descent the effect would be that his citizenship was taken away from him and in effect he would be deemed never to have had it although undoubtedly in fact he had had it. Leaving aside the separate question, to which their Lordships will refer, whether in any event Act No 12 could have retrospective force, it has to be considered whether the “disability or restriction” of deprivation of citizenship is something which “having regard to its nature and to special circumstances pertaining to” the appellant and those similarly placed is “reasonably justifiable in a democratic society”. It seems very doubtful whether it could be said that to impose a disability on the ground that someone’s father and paternal grandfather were not “negroes of African descent” was something which having regard to its “nature” was reasonably justifiable in a democratic society. But apart from this it is to be observed that to justify (under sub-s (4)(f)) making discriminatory legislation not only must the disability be of itself of a nature that makes it reasonably justifiable but there must also be “special circumstances pertaining” to the persons subjected to the disability which make the legislation reasonably justifiable in a democratic society.
Their Lordships can see no trace of any “special circumstances” pertaining to the appellant or to those similarly placed to him whose fathers and grandfathers were not negroes of African descent. If s 23 provides that no law shall make any provision which treats some people differently from others merely because of differences in race it cannot be that such differences in race would alone constitute “special circumstances” pertaining to those being treated differently. The special circumstances would have to be additional to the differences of race (or of tribe or of place of origin or political opinions or colour or creed as the case may be). It was contended that “special” circumstances pertaining to the appellant and others similarly placed were to be found in the fact that they could be said to belong to an immigrant community whose links with the country were formed more recently than those of others. But the essence of the change that Act No 12 would effect would be to eliminate those who were not negroes of African descent. Under s 1(1) of the Constitution, as it came into effect, a person became a citizen on 27 April 1961 if: (a) he was born in the former colony or protectorate; and (b) he was on 26 April 1961 either a citizen of the United Kingdom and colonies or a British protected person; and (c) one of his parents or one of his grandparents was born in the former colony or protectorate. Under the designed amended s 1(1) a person would become a citizen if: (a) his father and his father’s father are or were negroes of African origin; and (b) he was born in the former colony or protectorate; and (c) he was on 26 April 1961 a citizen of the United Kingdom and colonies or a British protected person; and (d) one of his parents or grandparents was born in the former colony or protectorate. No change would be made in the provisions of s 1(2).
It will be seen therefore that the designed change was not one that added anything in regard to having links with Sierra Leone or long family associations with Sierra Leone. The essential change did not involve that a person’s father or father’s father should have lived in Sierra Leone: what the change involved was that a person’s father and father’s father had to be “negroes” and also negroes of “African origin”. The new added qualification in s 1(1) was essentially a racial one. The only circumstance which was to exclude those who under the provisions of s 1(1) had already become citizens was that they would not satisfy a description which was essentially a description by race. In their Lordships’ view Act No 12 offends against the letter and flouts the spirit of the Constitution. Nor have their Lordships heard any reason assigned which could seem to justify the enactment. The circumstances pertaining to the appellant (or to any others similarly placed) were no different on 17 January 1962, when Act No 12 was passed, from the circumstances pertaining on 27 April 1961. Nothing had changed. There was no reason why the appellant should be deprived of his citizenship. There were no special circumstances pertaining to the appellant or to others similarly placed.
It is to be observed that Act No 12 does not even purport to amend s 23(4) nor could it have done so. Section 23 is a section referred to in the proviso to s 43 and Act No 12 admittedly did not result from a Bill passed by the House of Representatives in two successive sessions there having been a dissolution of Parliament between the first and second of those sessions.
Before proceeding to consider an Act which was passed for the second time on 3 August 1962, Act No 39 of 1962 (which will be referred to as Act No 39) their Lordships must refer to the provisions of the Constitution relating to its amendment and to certain additional submissions which were made in regard to Act No 12.
Chapter IV of the Constitution deals in Part I with the composition of Parliament, in Part II with legislation and procedure in the House of Representatives and in Part III with the summoning, prorogation and dissolution of Parliament. It is to be noted (see s 31) that included in the qualifications for membership of the House of Representatives is that a person must be a citizen of Sierra Leone.
The provisions of s 42 and s 43 of the Constitution are of the utmost importance. They are as follows:
“42. Subject to the provisions of this Constitution, Parliament may make laws for the peace, order and good government of Sierra Leone.
“43. (1) Parliament may alter any of the provisions of this Constitution or (in so far as it forms part of the law of Sierra Leone) any of the provisions of the Sierra Leone Independence Act, 1961:
“Provided that in so far as it alters-
(a) this section;
(b) sections 11 to 25 (inclusive), section 29, section 44, subsection (2) of section 54, section 55, sections 56, 73, 74, 75, 76, 77, 79, 80, 81, 84, 85, 86, 87 to 93 (inclusive), 94, 95, 96, 97, 98, 99, 102 or 103;
(c) section 107 in its application to any of the provisions specified in paragraph (a) or (b) of this subsection; or
(d) any of the provisions of the Sierra Leone Independence Act, 1961, a bill for an Act of Parliament under this section shall not be submitted to the Governor-General for his assent unless the bill has been passed by the House of Representatives in two successive sessions, there having been a dissolution of Parliament between the first and second of those sessions.
“(2) For the purposes of subsection (1) of this section, a bill passed by the House of Representatives in one session shall be deemed to be the same bill as a bill passed by the House in the preceding session if it is identical with that bill, or contains only such alterations as are certified by the Speaker to be necessary owing to the time that has elapsed since that bill was passed in the preceding session.
“(3) A bill for an Act of Parliament under this section shall not be passed by the House of Representatives in any session unless at the final vote thereon in that session it is supported by the votes of not less than two-thirds of all the members of the House.
“(4) The provisions of this Constitution or (in so far as it forms part of the law of Sierra Leone) the Sierra Leone Independence Act, 1961, shall not be altered except in accordance with the provisions of this section.
“(5) In this section-
(a) references to any of the provisions of this Constitution or the Sierra Leone Independence Act, 1961, include references to any law that amends, modifies, re-enacts with or without amendment or modification or makes different provisions in lieu of, that provision; and
(b) references to the alteration of any of the provisions of this Constitution or the Sierra Leone Independence Act, 1961, include references to the amendment or modification, or re-enactment, with or without amendment or modification, of that provision, the suspension or repeal of that provision and the making of different provision in lieu of that provision.”
It will be seen that s 1 of the Constitution is not one of the sections referred to in the proviso to s 43. A Bill to amend s 1 did not therefore have to be passed by the House of Representatives in two successive sessions but it did require at the final vote on it (see sub-s (3)) to be supported by the votes of not less than two-thirds of all the members of the House.
In regard to Act No 12 a point was taken that it had not been “passed” in accordance with the provisions of the Constitution in that it had not been supported by the votes of two-thirds or more of all the members. It was argued that the endorsement of the Clerk of the House of Representatives on Act No 12 was merely that the Bill had been passed and that it did not record that the Bill had been passed in accordance with the provisions of s 43(3). Comparison was made with the endorsement on Act No 39. That is an Act which is designed to amend s 23 of the Constitution. As s 23 is one of the sections referred to in the proviso to s 43(1) it was necessary that a Bill for an Act to amend s 23 should have been passed by the House of Representatives in two successive sessions, there having been a dissolution between the first and the second of them. The printed endorsement on Act No 39 (over the name of the Acting Clerk of the House of Representatives) is in these terms:
“Passed in the House of Representatives for the second time and in accordance with the provisions of subsection (1) and (3) of section 43 of the Constitution this 3rd day of August in the year of Our Lord one thousand nine hundred and sixty-two.”
There appears to be no statutory requirement that an endorsement should be in any particular form (although there are requirements in regard to authentication and assent and date of operation (see Act No 63 of 1961)) but it will be seen that an endorsement could, according as would be appropriate, record: (a) that a Bill had been passed; or (b)(if the Constitution was being altered) passed with the necessary voting support; or (c)(if the sections or provisions referred to in the proviso to s 43(1) were being altered) passed for a second time and in accordance with the provisions of sub-s (1) and sub-s (3). It was argued that, because the endorsement on Act No 12 merely records that the Bill was “passed”, it should be inferred that it was passed in an ordinary manner and not in the special manner (under sub-s (3)) of having the support of the votes of not less than two-thirds of all the members of the House. Their Lordships do not think it right to draw any such inference. There is no reason to suppose that there was any irregularity. It is recorded by the Clerk of the House of Representatives that the Bill was passed. There is no basis for any suggestion that the Bill was not properly passed or for supposing that a procedural requirement was forgotten or ignored.
A further submission in regard to the invalidity of Act No 12 was based on a consideration of s 9 of the Constitution. That section which is not one referred to in the proviso to s 43 provides as follows:
“9. Parliament may make provision-(a) for the acquisition of citizenship of Sierra Leone by persons who do not become citizens of Sierra Leone by virtue of the provisions of this Chapter;(b) for depriving of his citizenship of Sierra Leone any person who is a citizen of Sierra Leone otherwise than by virtue of subsection (1) of section 1 or section 4 of this Constitution; or (c) for the renunciation by any person of his citizenship of Sierra Leone.”
In reliance on para (b) it was submitted that Parliament was not entitled tomake provision for depriving of his citizenship of Sierra Leone a person who is a citizen by virtue of s 1(1) or s 4 of the Constitution. The appellant became a citizen of Sierra Leone on 27 April 1961 by virtue of s 1(1) and was a citizen on 17 January 1962; it was submitted therefore that on that latter date Parliament was not entitled to pass a Bill which would have the effect of depriving him of his citizenship. As their Lordships are clearly of the opinion for the reasons that have already been set out that the amendments to s 1 of the Constitution by Act No 12 were invalid it is not necessary to express a final view in regard to this additional submission. Linked with a consideration of it is the question whether, assuming that the provisions of s 2 of Act No 12 were otherwise valid, the Act could in any event validly be deemed to have come into operation on 27 April 1961. If it could and if therefore s 1 of the Constitution was amended on 27 April 1961 could it be said that there was any moment of time on that date during which the appellant became a citizen? Or was the result, albeit by a deeming process, that the appellant never became a citizen? If so then he was not deprived of citizenship and the provisions of s 2 of Act No 12 would not violate s 9 of the Constitution. If, however, retroactive operation of Act No 12 could not be effected then was it an effect of the passing of Act No 12 that s 9(b) of the Constitution was impliedly repealed? Or was s 9(b) impliedly amended? If it was, what was the amendment?
If, as their Lordships conclude, the amendments to s 1 of the Constitution by Act No 12, when passed, were in violation of the provisions of s 23 of the Constitution and so were invalid, it is contended by the respondent that that consequence was nevertheless avoided by the passing of Act No 39 of 1962. Act No 39 has the title-“An Act to amend the Constitution in order to effect the Avoidance of Doubts.” It does not set out what the doubts were but as the purpose of the Act is to amend s 23 of the Constitution in a particular way it is a reasonable assumption that the doubts were doubts in the minds of some persons as to the validity of Act No 12. As s 23 is one of the sections mentioned in the proviso to s 43 a Bill for the amendment of it required to be passed in accordance with the provisions both of sub-s (1) and of sub-s (3) of s 43. The Bill was so passed. It was passed for the second time on 3 August 1962. It was assented to in Her Majesty’s name on 3 October 1962. The Act has but two sections. They are as follows:
“1. This Act may be cited as the Constitution (Amendment)(No. 3) Act, 1962, and shall be deemed to have come into operation on the 27th day of April, 1961.
“2. Subsection (4) of section 23 of the Constitution is hereby amended by-
(a) the substitution of a semi-colon and the word `or’ for the fullstop at the end of paragraph (f); and
(b) the addition immediately thereafter of the following new paragraph (g) for the limitation of citizenship of Sierra Leone to persons of negro African descent, as defined in subsection (3) of section 1 of this Constitution, and for the restrictions placed upon certain other persons by subsection (4) of the said section’.”
It is to be observed that Act No 39 does not refer to Act No 12. It does not attempt any process of re-enactment. It purports to amend sub-s (4) of s 23 of the Constitution by adding a new paragraph. The new paragraph refers to sub-s (3) and sub-s (4) of s 1. In the Constitution unless it had been validly amended there were no such subsections of s 1. Had the provisions of s. 2 of Act No 12 been valid then there would have been the addition to s 1 of the Constitution of such subsections. Act No 39 needed as a basis an assumption that Act No 12 was valid and so was an existing Act. That was an incorrect assumption. Their Lordships are quite unable to accept the contention that Act No 39 should be regarded as impliedly reviving or re-enacting any invalid provisions of Act No 12. The provisions of s 2 of Act No 12 were invalid when the Act was passed and assented to and the provisions must be treated as having been non-existent. There is no provision in Act No 39 which purports or sets out to give them life. Although Act No 39 was passed in accordance with the provisions of s 43 it becomes meaningless once the provisions of s 2 of Act No 12 are ignored as they must be.
A viewpoint (which found favour with the learned Chief Justice) that it was not open to the legislature to make any alteration (whatever its form) to the Constitution which did not amount to an improvement of the existing law was not advanced before their Lordships and would not have been acceptable.
Their Lordships’ conclusions make it unnecessary to express any final opinion whether if Act No 12 had otherwise been valid its purported retroactive operation could have validity. The terms of the Constitution must have been drafted after consultations and agreement. It probably was not in fact contemplated that an important provision concerning citizenship which came into operation on 27 April 1961 would be altered other than prospectively. Parliament in Sierra Leone was however (by s 42 of the Constitution) given the plenitude of power to make laws which results from the use of words “make laws for the peace, order and good government of Sierra Leone” and also the power (see s 43)(subject to the proviso) to “alter” the provisions of the Constitution.
The Constitution laid it down that if it is desired to alter the provisions contained in the sections referred to in the proviso to s 43 there must be a Bill passed in two successive sessions with a dissolution of Parliament between those sessions; and all other requirements of sub-s (1) and sub-s (2) and sub-s (3) must be satisfied. This points to the view that the normal expectation would be that Parliament would decide that alterations to the entrenched clauses of the Constitution would operate prospectively after a new Parliament was in being. But whether this be so or not the power of Parliament is only restricted to the extent which is set out in the Constitution. The general power of Parliament must include a power to enact that legislation (if valid and validly passed) is to have retrospective effect. An intention so to enact would have to be shown by clear and definite words. So also Parliament is entitled to have recourse to deeming provisions. It is not for the court to decide as to the wisdom or the desirability of exercising such powers. It is to be observed, however, that whatever Parliament might, by some deeming provisions, have succeeded in doing in the early part of 1962 it could not have altered any of the facts of history. Whatever the position could have been deemed to be, the fact would remain that the appellant had become a citizen. He would continue to be one until some valid enactment brought about a change. In view of the conclusions which their Lordships have expressed they need not refer further to the problems which have been raised. The circumstance that they are posed (as well as those already noted in reference to s 9) is commentary enough of the difficulties which have been created by the scheme of legislation which it was thought appropriate to attempt to adopt.
Their Lordships are therefore in agreement with the result which was reached by the learned Chief Justice. On the basis of that result the wording of the appropriate declarations was left to be settled by counsel on both sides between them. In the first declaration which counsel jointly drafted there is a reference to Act No 52. That was an Act with the short title “The Constitution (Consolidation of Amendments) Act, 1965”. As the reference to Act No 52 was included by reason of the agreement of counsel on both sides in drafting the declaration it has not been necessary for their Lordships to examine that Act. Three declarations were made in the Supreme Court. They were as follows:
“(i) That the amendments to Section (1) of the Constitution by Act 12 of 1962 and Act No. 52 of 1965 are ultra vires the Constitution and therefore null and void;(ii) That the purported amendment by Act No. 39 of 1962 of Section 23 of the Constitution was ultra vires the Constitution and therefore null and void;(iii) That all consequential amendments to other sections of the Constitution, e.g., the inclusion of the figure `1′ on line 1 of section 31 of the Constitution, are ultra vires and void.”
In view of what their Lordships have held they do not restore the second declaration.
For the reasons which they have set out their Lordships will humbly advise Her Majesty that the appeal should be allowed and that the judgment of the learned Chief Justice dated 1 December 1967 be restored (subject to the omission of the second declaration). The respondent must pay the costs of the appellant before their Lordships’ Board and in the Court of Appeal.
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LORD GUEST.
With a great deal of the advice tendered to Her Majesty in the majority judgment delivered by Lord Morris Of Borth-Y-Gest I find myself in complete agreement. It is only on one point, but a critical point, that I wish to dissent from the advice tendered.
I find it unnecessary to repeat the background and facts relating to this appeal which have already been set out in the majority judgment. Act No 12 of 1962 was challenged on various grounds by the appellant as being ultra vires of the Constitution. I agree with the advice tendered as regards the procedural point, the point as affected by s 9(a) of the Constitution and also as to the powers of Parliament to pass retrospective legislation that the challenge of ultra vires fails. It is with the point as affected by s 23 that, with respect, I disagree.
Act No 12 of 1962 provides in effect that as from 27 April 1961 it is a prerequisite of Sierra Leone citizenship in addition to the requirements of s 1(1) of the Constitution that a person should be of “negro African descent” as there defined. This is purported to be effected by a retrospective amendment of s 1(1) of the Constitution which came into effect on 27 April 1961. The challenge made by the appellant against this legislation is that, inter alia, it is “discriminatory” having regard to the terms of s 23. The respondent admits that Act No 12 of 1962 is discriminatory and as such offends s 23. Section 23 is one of the specially entrenched sections of the Constitution which requires the special procedure enjoined by s 43(1) of the Constitution. It is agreed that this special procedure was not carried out. No 12 of 1962 can therefore only be saved if it comes within the exemption under s 23(4)(f). Under this section the law on discriminatory legislation is excluded where any law makes provision:
“whereby persons of any such description as is mentioned in subsection (3) of this section may be subjected to any disability or restriction or may be accorded any privilege or advantage which, having regard to its nature and to special circumstances pertaining to those persons or to persons of any other such description, is reasonably justifiable in a democratic society.”
It is said that the exemption does not apply because there is no averment or no statement by the respondent that there are “any special circumstances” within the meaning of that section which made Act No 12 reasonably justifiable in a democratic society. Although the courts are the guardians of the Constitution I believe that in interpreting the Constitution the ground has to be trod warily and with great circumspection. My answer to the argument that no special circumstances were alleged is that it would not be to the point if they were. The respondent cannot speak for the Parliament of Sierra Leone. Parliament speaks only through the provisions on the statute book. The courts cannot go behind the scenes and enquire what were the motives or policy behind a particular piece of legislation. They can only as a matter of construction decide whether the Act is or is not within the powers of the Constitution. This question must be decided on the terms of the Act in conjunction with the provisions of the Constitution.
Accordingly, the question which has to be considered is whether Act No 12 of 1962 is a provision whereby persons who are discriminated against are subjected to any disability or restriction which having regard to the nature of the disability or restriction and to special circumstances pertaining to those persons is reasonably justifiable in a democratic society.
As a matter of construction I have no hesitation in holding that Act No 12 dealing as it does with citizenship is having regard to its nature as affecting a disability as regards citizenship reasonably justifiable in a democratic society. Any democratic society must in the nature of things have control over the qualifications for citizenship of that society. Next there must be “special circumstances pertaining to the persons” discriminated against. I demur to the view expressed that what must be shown is “a change of circumstances” since the Constitution was enacted which would justify Act No 12. There is no mention of “a change of circumstances” in the Constitution. If the courts are, as I think they are, precluded from enquiring into the motives behind Act No 12 I find it difficult to see how the courts can decide whether there were any special circumstances which prompted the passing of Act No 12. This is a matter for Parliament. All that is required in my view is that special circumstances must appear ex facie of the Act impugned. If they do not then the Act would not be saved by s 23(4)(f). In my view however there are sufficient special circumstances appearing on the face of Act No 12 to show that it was reasonably justifiable in a democratic society. These circumstances are the requirement of negro African descent for citizenship.
The matter can be tested by a reference to s 23(4)(e) which provides exception where a law makes provision:
“for authorising the taking during a period of public emergency of measures that are reasonably justifiable for the purpose of dealing with the situation that exists during that period of public emergency;”.
A law which appeared on the face of it to be passed during a period of public emergency could not be challenged on the ground that it was not reasonably justifiable for the purpose of dealing with the situation. This is a matter for the executive and not for the courts. There is a whole tract of law dealing with the Defence (General) Regulations 1939 (d) passed at the outbreak of the last war in respect of the powers of the executive. It is only necessary to give one quotation from Lord Greene MR in Carltona Ltd v. Comrs of Works ([1943] 2 All ER 560 at p 564):
“All that the court can do is to see that the power which it is claimed to exercise is one which falls within the four corners of the powers given by the legislature and to see that those powers are exercised in good faith. Apart from that, the courts have no power at all to inquire into the reasonableness, the policy, the sense, or any other aspect of the transaction.”
See also Point of Ayr Collieries Ltd v Lloyd-George.
If the courts are precluded from enquiry into the justifiability of executive acts a fortiori it appears to me that the court cannot enquire into the validity of an Act of Parliament which ex facie appears to be within the Constitution. (For the application of this doctrine to delegated legislation, see Riel v Reginam.)
For these reasons I would hold that Act No 12 was intra vires and I would be in favour of the appeal failing.
Appeal allowed.
Cases referred to in judgment
Carltona Ltd v Comrs of Works [1943] 2 All ER 560, 17 Digest (Repl) 441, 119.
Point of Ayr Collieries Ltd v Lloyd-George [1943] 2 All ER 546, 17 Digest (Repl) 480, 278.
Riel v Reginam (1885), 10 App Cas 675, 55 LJPC 28, sub nom R v Riel, 54 LT 339, 8 Digest (Repl) 704, 120.