JOSEPH A. GARANG & OTHERS v. THE SUPREME COMMISSION
(HIGH COURT)
JOSEPH A. GARANG & OTHERS v. THE SUPREME COMMISSION
& OTHERS
HC-CS-93-1965
Principles
Constitutional Law—Fundamental rights—Whether Constituent Assembly is empowered to amend the Transitional Constitution by legislation or constitutional amendment to abridge fundamental right
Construction of Statutes—Legislative enactments—How to be construed Constitutional Law—Sudan Transitional Constitution—Whether the Constituent Assembly is empowered to amend. Two-thirds majority, meaning of
The plaintiffs, who were members of the Communist party, were elected to
the Constituent Assembly. The whole body of the Assembly comprises 233 seats.
At the time of the Constitutional amendments, the subject-matter of this case,
the total membership of the Assembly stood at 192.
In November 1965, the Constituent Assembly made amendments to the Sudan
Transitional Constitution (amended 1964) with a majority of 125 votes, 142 votes
being cast in favour and 17 votes cast against the motion. The plaintiffs
contended that such amendments were unconstitutional because they infringed
the fundamental rights embodied in article (2) of the Constitution. They also
contended that the Constituent Assembly was not empowered to amend such
Constitution.
Held: (i) The fundamental rights secured by article 5 (2) of the Transitional
Constitution as amended in 1964. were immune from abridgment by legislation
or constitutional amendment by the Constituent Assembly. The Constitution
makers by omitting to provide machinery for constitutional amendment, intended
that guaranteed fundamental rights should not be subject to any abridgment by
constitutional amendment or legislation during the transitional period of two
years. It was the paramount duty of the Assembly during those two years to
draft and pass the permanent Constitution.
(ii) In interpreting any enactment, the Sudan Courts stick to the letter of
the law and give to the words their grammatical meaning.
Obiter dictum: Assuming that the Constituent Assembly was empowered to
amend the Transitional Constitution, such amendment could not be made by
a two-thirds majority of those members present and voting. The amendment,
to be valid, should be passed by a two-thirds majority of the total composition
of the Assembly.
Advocates: Abdin Ismail,
Abdel Wahab Mohamed Abdel Wahab and Ahmed Sulieman………………..for plaintiffs
Osman Khalid, Yousif Mikhail andHussein Mohamed Hussein …………………………….for Attorney-General for defendant
Judgment
Salah Eddin Hassan, J., December 22, 1966 applicants in this case are members of the Sudanese Communist party and as such they successfully stood for the General Elections and were elected as members of the Constituent Assembly.
The whole body of the Constituent Assembly comprises 233 seats, fifteen of which are reserved for the Graduates and 215 to the rest of the country.
This court takes judicial notice of the fact that no elections were carried out in the Southern Region of the Sudan.
The successful candidates upon the termination of the partial elections, and up to the date of the amendment in question, i.e., November 22, 1965 were 192 (one hundred and ninety-two members). Accordingly when the amendment of the Constitution in question was made there were 41 (forty-one) unfilled vacancies in the Constituent Assembly.
On November 22, 1965 the members of the Constituent Assembly actually sitting and voting were 159 (one hundred and fifty-nine). The proposed amendments, subject of the litigation, passed by a majority, i.e, 142 votes against 17 votes and were therefore put into immediate effective operation. These amendments read as follows:
AMENDMENT No. 2: The Sudan Transitional Constitution (amended 1964) shall be amended as follows:
1. The following proviso shall be added at the end of sub-article (2) of article 5 : “Provided that no person shall perform or seek to perform any act in furtherance of communism whether local or international or perform or seek to perform any act to overthrow the government.”
2 .The following new sub-article shall be added after sub-article (2) of article 5 : “(3) Every association whose aim or means constitute a contravention of the proviso to sub-article (2) shall be deemed to be an unlawful association; and the Constituent Assembly may enact any legislation which it shall deem to be necessary for the implementation of the provisions of that proviso.
The applicants brought this action.
They prayed the High Court to issue the following declarations.
1. That it is not within the power of the Constituent Assembly to amend the Transitional Constitution (amended 1964)
2. That the amendment to article of the Sudan Transitional Constitution (amended 1964) passed on November 22, 1965 is unconstitutional.
. 3That the same amendment constitutes an infringement of a fundamental right secured to plaintiffs by article5 (2) as it stands before the amendment in question.
4. Any other relief the court deems appropriate.
The applicants were represented by a number of leading advocates amongst whom were Abdin Ismail, Abdel Wahab Mohamed Abdel Wahab, and Ahmed Sulieman. I have mentioned these because they signed the last sub on the other hand the respondents were represented by a group of lawyers from the Attorney-General’s Office namely Osman Khalid, Yousif Mikhail and Hussein.
They denied the prayer of the applicants and moved in a preliminary objection that the High Court has no jurisdiction to entertain the application. This objection was formally made on December 27, 1965. Submissions on this point were handed to the court consecutively on the tenth and fifteenth January 1966.
The decision of the High Court overruling the objection was delivered on July 26, 1966.
The gist of this decision was that the Sudan Transitional Constitution 1964 (amended) is a fundamental law which is supreme over all other laws existing and future as provided in article (3) of the same Constitution.
Chapter II of this Constitution deals with the fundamental rights; and article 5, the subject of the amendment in question, secures amongst other rights the right of free association and combination subject to the law. By article 8 the right to constitutional remedy in respect of any of the rights conferred by Chapter II was vested in the High Court. Again article 99 provides that the Judiciary shall be the custodian of the Constitution, and shall have jurisdiction to hear and determine any matter involving the interpretation of the Constitution hereby established, or the enforcement of the rights and freedoms conferred by chapter II.
These two articles 8 and 99 vest in the High Court the power of judicial review over legislative and executive authorities in the Sudan, so that they cannot exceed the boundaries and limitations prescribed by the Constitution. This is the same principle applied in India and the United States of America in contrast with the United Kingdom where Parliament is supreme and its legislation is not subject to judicial review.
This decision so far stands unchallenged and I hereby cite it with approval and embody it as part of my judgment, with the following addition concerning the question of judicial review.
A written Constitution needs a final interpreter and in most of the countries with a written Constitution this role is assigned to the Judiciary which is termed as judicial review. The doctrine has its origin in England
but ironically enough the doctrine does not prevail there at present. Its basic foundation lies in the statement of Sir Edward Coke in Drabanham’s case that:
“ Common Law will controll Acts of Parliament and sometimes adjudge to be utterly void. For when an Act of Parliament is against common right and reason, or repugnant or impossible to be performed, the common law will controll it and adjudge such Act to be void.”
Later in the conflict between the supremacy of the Prerogative and Parliament, the Parliament came out victorious; and Sir Carleton Allen observes, the doctrine of the supremacy of law died with the revolution and thereafter was several times repudiated in express terms from the Bench (Allen, Law in the Making, p. 429).
There is no hope of judicial review in England in the sense the term is generally understood. There is a difference in opinion between Professor Wade and Sir Ivor Jennings as to whether the British courts can declare an Act of Parliament to be void on the ground that the proper procedure was not followed. Whereas both concede that the British courts have no power to determine the constitutionality of the substantive provisions of an Act passed by the Parliament, Jennings takes the view that the British courts see whether the procedure followed by Parliament was proper or not (see Jennings Law and the Constitution, (4th ed., 1956) pp. 142—148). Professor Wade does not agree and takes the view that once an Act is placed on the parliamentary rolls that should be the conclusive proof of the validity of that law and the courts cannot question how that law was passed. However, this still remains an academic point. As no case in actual practice has come before the British courts where they have been called upon to pronounce upon the validity of an Act on the ground that Parliament did not follow the prescribed procedure in enacting that law.
In some constitutions like those of India, Ireland, and the Sudan this duty of the court is explicitly recognized (see articles 8 and 99 of our Transitional Constitution), whereas in some cases it is implied from the terms of the Constitution or from the nature of the judicial function as in the United States.
The Supreme Court of the United States assumed the power of judicial review since the celebrated case of Marbury v. Madison (1803) 1 Cranch
137 . The following observations of Chief Justice Marshall are pertinent to note:
“ the powers of the legislature are defined and limited; and that those limits may not be mistaken, or forgotten, the Constitution is written. It is a proposition too plain to be contested, that the Constitution controls any legislative Act repugnant to it, or, that the legislature may alter the Constitution by an ordinary Act. Between
these alternatives there is no middle ground. The Constitution is either a superior paramount law unchangeable by ordinary means or it is on a level with ordinary legislative Acts, and like other Acts is alterable when the legislature should please to alter it. If the former part of the alternative be true, then a legislative Act contrary to the Constitution is not law. Certainly all those who have framed written Constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently, the theory of every such government must be, that an Act of the legislature, repugnant to the Constitution, is void.”
The Sudan Transitional Constitution, like that of India, Eire and Japan, contains certain specific provisions for judicial review—see articles 3, 8 and of our Transitional Constitution.
One of the first constitutional cases in India was Gopolan v. State of. Mdras (1950) A.I.R.S.C. 27. In this case it was pointed out that:
In” India it is the Constitution that is Supreme, and that a statute law to be valid must in all cases be in conformity with the Constitutional requirements and it is for the Judiciary to decide whether any enactment is constitutional or not.”
In the words of Chief Justice Shastri in State of Madras v. Raw (1952) S.C.R. 597:
“ Before proceeding to consider this question we think it right to point out what is sometimes overlooked—that our Constitution contains express provisions for judicial review of legislation as to its conformity with the Constitution, unlike in America where the Supreme Court has assumed extensive powers of reviewing legislative Acts, If then the courts in this country face up to such an important and not too easy task, it is not out of any desire to tilt at legislative authority in a crusaders’ spirit, but in discharge of duty plainly laid upon them by the Constitution. This is specially true as regards fundamental rights.”
In the Sudanese case in the Court of Appeal The Building Authority of Khartoum v. Evangellos Evangillidies, AC-APP—23-1958 (1958) S.L.J.R.16, Mr. Justice R. C. Soni says in a dissenting judgment at page 44:
“ It is also well to remember that we have to take care in applying all that is said in English cases. In the English Constitution Parliament is supreme. The legislature there is not bound by any written law of the Constitution. But in the Sudan, as in the United States the Constitution is supreme. Textbooks are full of cases where the Supreme Court of the United States has declared legislative Acts of the United States Congress ultra vires the Constitution and unenforcible. The same duty is cast upon the High Court here to scrutinise with care all rules, regulations, laws and ordinances, whether made by the legislature or by the rule-making authority so that no transgression is made of citizens’ rights declared by the Constitution which are entrusted to the care of the High Court.”
From the above, we can safely say that this High Court is empowered by the Constitution to decide on the essential validity and constitutionality of any law passed by the legislature.
The major part of this dispute revolves around the amendment of article 5 in so far as it tends to abridge and restrict a guaranteed fund amental right deeply entrenched in the Sudan Transitional Constitution (amended, 1964). Accordingly, I wish to emphasise that any decision in this case is strictly confined to the facts of this dispute as such. Both submissions exchanged by the parties were ably prepared and they left nothing undiscussed. After studying these submissions and going through the record of the whole case, I have summarised the dispute in the form a three questions, which this court has to answer:
1. Is this body, composed of 192 (one hundred and ninety-two), succeeded in the last General Election a Constituent Assembly?
If yes,
2. Are they empowered as such to make any amendments in the Sudan Transitional Constitution (amended 1964) restricting in any way the fundamental rights secured in Chapter II? or in other words does our Transitional Constitution allow itself to be so amended
.3 Last but not least whether the amendment in question was constitutional or not.
The answer to the first question is obviously in the affirmative. This court takes judicial notice of the fact that General Elections were properly held throughout the country; except in the Southern Region, in which they were delayed owing to political and administrative reasons. Section I4 of the Constituent Assembly Elections Act 1965 clearly says:
“ The validity of the Constitution of the Constituent Assembly or of any proceedings therein shall not be affected by the mere fact - unfilled vacancies therein.”
Upon completion of the elections 192 were elected leaving a balance of 41 unfilled vacancies
Whether the unfilled vacancies are 41 or a bit less does not affect the validity of the Constituent Assembly Constitutions according to section 14 In interpreting any enactment we stick to the letter of the law in such circumstances and give to the words their grammatical meaning.
We now shift to the second question which is the most important and difficult of all i.e. whether our Transitional Constitution is capable of being so amended by the Constituent Assembly. In order to answer this question we have to classify first our Transitional Constitution (amended 1964) and decide whether it is a flexible or a rigid constitution.
practically every Constitution has some formal methods of constitutional amendment. This is with a view to changing the language of the provisions in order to adapt them to the changed context of the social needs. In some countries the process of amending Constitutions may be easier than in others and accordingly the Constitutions are classified into rigid and flexible. Dicey defines the flexible Constitution as” one under which every law of any description can legally be changed with the same ease and with the same manner by one and the same body.” In the rigid ones the process is more elaborate and more difficult than the enactment of ordinary legislation. The best example of a flexible constitution is the English Constitution which can be changed by an Act of Parliament just like ordinary laws.
All written Constitutions are usually of the rigid type as the Constitution is regarded as being fundamental in the sense that it lays down the basic principles considered to be of a permanent value and it is thought that the method of amendment should be such as to ensure that the basic principles considered to be of permanent value are changed only after thorough consideration and deliberation and that hasty and ill-considered changes under political pressures of the day are avoided. Under which category shall we classify our present Transitional Constitution? The applicants maintain that it is very rigid while the respondents maintain that it is very flexible; some of the main arguments put for and against are the following:
Appllicants argument: The previous Transitional Constitution 1956 embodied a section that provided for its amendment (article 120). In the present Transitional Constitution this amending article was dropped. They maintain that the absence of an enactment enabling amendment can only be explained thus: that the framers of the Constitution 1964 (amended 1965) assuming that the Constituent Assembly was set up for a period limited by the Constitution itself by two years and entrusted with the main task of passing the permanent Constitution, have meant to subject the Constituent Assembly to such limitations as are contained in the Transitional Constitution on the top of which are the fundamental rights conferred on all citizens as essential safeguards for the due function of the Assembly: and without the enjoyment of which the Permanent Constitution can hardly be said to be the expression of the free will of the nation.
The respondents on the other hand argue that the silence of ot Transitional Constitution as to how it should be amended indicates t there is no fetter on the power of the Constituent Assembly to amend t., Constitution as they please and that the two-thirds majority by which the effected that amendment in question is a voluntary restriction which the can abandon as they please. In support of this argument they relied a an interpretation put on the original Statute of Sardinia 1848. ‘lit argument runs by citing this quotation:
“ But obviously as it came to be applied to the whole of Italy an to operate through a period of rapid growth and change some mean had to be found to adapt it to new circumstances. This was achiey by the simple expedient of regarding the silence of the origi Constitution makers in the matters of amendment as an indication flu changes could be made by means of ordinary legislation.”
I am not inclined to accept this argument of learned counsel for th defendants and in my opinion it is manifestly wrong. On checking t reference, i.e., Strong, Modern Political Constitutions, p. 151, from v the above quotation was cited, I came to notice that the first part of t paragraph from which this quotation was extracted was not mentioned which when read together as a whole gives a completely different meau to the author’s views. The author starts by saying “There appears to t no doubt that the original Statute of Sardinia 1848 was intended by its framers to be final and for that reason contained no reference as to method of amending it.” Then after this comes the quotation cited by defendant counsel which indicates that long after when Sardinia expanded over Ital the silence was interpreted as flexible. This was done just as an expedient way of meeting a new situation which has to be met some way or other— not forgetting Salmond’s warning that a Constitution that will never bend will sooner or later break. Vol. 1, Basu, Commentary on the Constitution of India (3rd ed., 1955) p. 12 states as follows:
“ While an unwritten Constitution like that of England can be changed by the legislature in the same way as it makes or unma ordinary laws, a written Constitution being the fundamental Jaw the land has a special sanctity and cannot, in its very nature alterable like ordinary laws.”
In the United States the first Constitution of most of the thirteen original States contained no express provisions at all concerning the amendments. This has never been interpreted to mean that the legislature can amend the Constitution as they please. With reference to this James Parkers Hall, Professor of Law and Dean, School of Law, University of Chicago, wrote in his book Constitutional Law (1915) at p. 13 following: Where a Constitution contains no express provision for its amendment, the legislature may call a convention of Delegates, chosen by the people, the call being made directly by the legislature, or in consequence of a previous Vote of the people authorizing the legislature to do so. The convention so called may propose changes in the Constitution and submit them to the people, and when ratified by the vote of the latter the Constitution is changed accordingl If we accept the submission of the defendants’ counsel that this Transitional Constitution can be amended without any restriction like ordinary laws, this would offend against the basic theory of written Constitutions as supreme fundamental laws, as embodied in article 3: it would also offend against the safeguards and guaranties of fundamental rights. In addition to that we are going to have very curious results, e.g., according to article 55 two-fifths of the members of the Constituent Assembly will form a quorum, i.e., 94 members only; therefore a majority of the quorum which may be only 48 members can wipe out chapter II dealing with fundamental rights and can displace the Judiciary.
Such an idea would subvert the very foundation of all written Constitutions and in the words of C. J. Marshall in Marbury v. Maddison:
It would declare that if the legislature shall do what is expressly forbidden, such act, notwithstanding the express prohibition, is in reality effectual. It would be giving to the legislature a practical and real omnipotence, with the same breath which professes to restrict their power within narrow limits. It is prescribing limits and declaring that those limits may be passed at pleasure, thus written Constitutions will be absurd attempts on the part of the people to limit a power in its own nature illimitable.”
Before making my final comments on the defendants’ intend to make a quick survey over the manner of amendments in various civilized countries of the world.
Dicey says:
“When the Constitution is rigid, certain laws are distinguished from others in that some special procedure is necessary for their alterations, if they are legally alterable at all; almost all European and American Constitutions are rigid. The method of amending fundamental or ‘constitutional laws’ varies in different Constitutions; it may be the legislature sitting in a special way (as in France) or with a prescribed majority or prescribed quorum as in Belgium, or the convention of a special constituent body as in the States or a referendum of the electorate as in Switzerland. The deeply entrenched provisions may be very difficult to change and sometimes Constitution or part of it may not be legally alterable at all, e.g., the basic articles of Cyprus Constitution.”
Professor S. A. de Smith, The New Commonwealth and its Constitutions, at the bottom of page 110 says:
“However, in drafting a constitution for a new State it may be unrealistic to begin with presumptions in favour of brevity and flexibility. Often it will be politically impossible to obtain general agreement on the new Constitution unless it is both lengthy and fairly rigid. Those who do not expect to find themselves in power on Independence Day may well be profoundly distrustful of the majority party and its leaders and the price of their acquiescence in the new order is therefore likely to be a somewhat constitutional machine with built-in resistances against subsequent modifications. The principal methods of constitutional entrenchment either:
a. Interpose a period of delay before a legislative proposal for constitutional amendment can have effect, or
b. Require that bills for constitutional amendments shall be passed by special majorities in the legislature if they are to become law, or
c. Require the concurrence of bodies other than the legislature itself or combine two or more of these requirements.”
In Jamaica the bill proposing an amendment must he submitted to a referendum at which a special majority of the votes must be obtained before it is sent for debate in the House of Reperesentatives where in case of entrenched provisions a two-thirds majority of all members of both Houses must be obtained.
In Sierra Leone the entrenched sections are alterable only by a bill passed in two consecutive sessions of Parliament with dissolution and a General Election intervening.
In Japan it can be amended by a motion to be resolved by both houses, each separately, by a majority of two-thirds of the members of the house. Then it shall be sent for plebiscite and becomes effective on gaining the majority of votes.
In Ceylon it could be amended if passed by a two-thirds majority of the full house of representatives.
In the light of this abundant literature, I am surely right in rejecting the argument of defence counsel concerning the amendment of this Constitution by ordinary legislative means especially as far as the fundamental rights are concerned.
It is now the duty of this court to interpret the Transitional Constitution and decide what did the Constitution makers intend by this silence
Respecting the provision for its amendment. When they left out article 120 of the Sudan Transitional Constitution 1956, which used to read: “This Constitution may be amended by a bill passed by a three-quarters majority at a joint sitting of both houses and assented to by the Supreme Commission” what did they mean by doing this? Did they intend to make it very flexible, or more rigid or final during this Transitional period? As regards flexibility I have already indicated my decision. As regards excessive rigidity or finality, I have come to the conclusion that as far as fundamental rights are concerned the Constitution makers by their silence intended that these guaranteed rights should not be subject to any abridgment by constitutional amendment during the Transitional period which is two years old. It is the paramount duty of the Constituent Assembly during these two years to make and pass the permanent constitution. It is also assumed with safety that the fundamental rights, especially those of free expression of opinion, and the right of free association and combination subject to the law should become completely inviolable even by the process of constitutional amendment until the passing of the permanent Constitution; so that every citizen whatever his political beliefs may be could have a say in the permanent Constitution, under which he and his children and maybe his children’s children shall live and survive. A good example of an absolute guarantee for fundamental rights is the new Japanese Constitution. In the words of Kotaro Tanka Chief Justice of the Supreme Court of Japan in an article written in the Journal of the International Commission of Jurists, Vol. 11, No. 2, para. I:
“ In the view of the new Constitution, fundamental human rights were not created by the state, but are eternal and universalinstitutions, common to all mankind and antedating the state and founded upon natural law. Unlike the old Constitution based on legal positivism, the new Constitution has a natural law of foundation. The supra constitutional character of natural law is clearly expressed in its preamble, declaring that ‘This (the principle of democracy) is a universal principle of mankind upon which this Constitution is founded. We reject and revoke all constitutions, laws, ordinances and prescripts in conflict herewith.’ The sanctity of natural law is carried a step further by conferring upon the courts, especially the Supreme Court, the power of judicial review. Fundamental rights derived from natural law are written into the Constitution and the Constitution provides the court with power to review any Act violating those rights. The Supreme Court is popularly called ‘the guardian of the constitution’ and it is in fact not unreasonable to regard the Supreme Court as a bulwark of human rights.”
Before concluding, I wish to comment by way of obiter dictum just
for the sake of argument that if we accept that article 5 is capable of being amended then the restriction of two-thirds majority is not unreasonable having regard to the various Constitutions of other parts of the world and having regard to the fact that our permanent Constitution is going to be passed by a two-thirds majority of the Constituent Assembly. But a two- thirds majority is understood by this court to mean two-thirds of the whole body of the Constituent Assembly, which comprises 233 seats. Therefore, nothing short of 156 votes could amend the constitution. The amendment in question was made by 142 votes only. According to this understanding it would be void.
Before making any final declarations, I wish to comment on a lengthy argument made by the applicant in respect of the due process of law clause, which appears in article 6 of our Transitional Constitution. With due respect, I have given this argument no consideration because the due process of law clause in our Constitution is restricted to arrest, detention, imprisonment or deprivation of the use of ownership of property. None of these is relevant to our present case which is strictly confined to the fundamental right of free expression of opinion and the right of free association and combination subject to the law.
Declaration follows in a formal Decree.