(CRIMINAL REVISION)

SUDAN GOVERNMENT v. CHARLY ANTOUN

AC-CR-REV-36-1966

Principles

·  Legislature—Expired legislation is null and void—It has no existence unless reenacted—Finance (Exchange Control) Regulations. 1957, issued after the expiration of the original Act is invalidated

A dead legislation becomes null and void from the ds ts ixpiratio therefore it is no more in existence and cannot be amend re.enacte4 Accordingly Finance (Exchange Control) Regulations, which, was issued after the expiration of the original Act, i.e., Residual Control Ordinance. 1950, which did not exist, is invalidated and was not effective

Judgment

Advocates: Mahdi Sharif for the accused

Abdel Rahim Musa for Attorney General      for prosecution

Babiker Awadalla C.J. August 13, 1966: —This is an application under the Code of Criminal Procedure, s. 257, against the conviction of accused

Charles Antoun by the Police Magistrate, Khartoum, on January 31, 1966 on a charge of abetting a certain Phillip Haggar in an attempt to contra vene regulation 4 of the Finance (Exchange Control) Regulations. 1957 punishable under the Residual Controls Ordinance, 1950, S.10.

The regulations in question were issued by the Council of Ministers under section 7 of the Ordinance giving the Council power to “mak regulations for the protection of the currency.”

The said regulations appeared in supplement 906 of the Sudan Govern ment Gazette issued on April 15, 1957, but the date of their corning into force was expressly therein stated to be April 7, 1957.

The facts as appear from the record are not in dispute. Accused is alleged to have obtained from his wife—apparently a British subject who owns an account at the High Road Branch of Barclays Bank, Loughton, Essex—a cheque in the name of Phillip Haggar for a sum of £i The cheque “ac. A” was post-dated June 1 1965. Phillip Haggar—who was called as a witness for the prosecution—admitted having received the cheque for the purpose of cashing it in Britain where he intended to go for treatment and accused did not contest the fact that the money was advanced as a loan repayable into the accoisnt of accused wife in the bank referred to. The cheque ‘i-as impounded in Phillip’s house on a police search for evidence connected with a series of similar contraventions with which we are not here concerned.

For no logical reason apparent on the face of the record, Phillip him self was not jointly tried with accused and no mention whatsoever appears in the proceedings why accused’s wife herself was not proceeded against, although the cheque was drawn by her to be paid out of her own funds outside the Sudan and the role of accused in this whole affair is undoubtedly a minor one compared to hers.

Nonetheless, accused alone was tried and convicted as an abettor of Phillip and sentenced to one month imprisonment and £S.25 fine or 15 days’ imprisonment in default.

It appears that at the trial accused was not represented by counsel, and on February 2, 1966, advocate Mahdi Sharif applied to the Honourable the Judge of the High Court under the Code of Criminal Procedure, s. 257, questioning the propriety of the conviction on grounds—inter alia:

(i) That the regulations were ultra vires the Council of Ministers in that at the time of their promulgation the Residual Controls Act, 1950, had expired and was not effectively re-enacted,

(ii) That alternatively, the prosecution had failed to establish that the act with which accused was charged offended against the purposes for which the Council of Ministers was empowered to make regulations viz., “the protection of the currency,”

(iii) That in the further alternative, the act of accused cannot property be brought within the purview of abetment of an offence because the mere receipt by Phillip of a post-dated cheque the cashing of which was contingent on a series of possibilities amounted to no more than a preparatory stage towards the commission of the offence and a person cannot be charged for abetment of an innocent act.

In refusing to intervene on behalf of the accused, the Honourable the Judge of the High Court dismissed the argument of the learned advocate against the validity of Residual Controls Act as void of logic and sense because in the opinion of the Honourable the judge of the High Court the Act was in fact revived by a Provisional Order which was duly approved by Parliament. The judge accordingly found that the regulations made by the Council of Ministers were intra vires the Council and there fore unassailable. He also dismissed the argument that the act of issuing the cheque was only merely preparatory and concluded that it was an act towards the commission of the offence and was therefore property treated by the learned Police Magistrate as an attempt.

The learned advocate for accused applied to the Honourable the Chief Justice who—in view of the arguments touching the validity of the law— thought fit to refer the case to this court under Code of Criminal Procedure, S. 261 (A).

Before the court advocate Mahdi appeared on behalf of the accused and Sayed Abdel Rahim Musa—acting for the Attorney General—appeared for the prosecution.

Advocate Mahdi reiterated the arguments made in his memo to the Honourable the Judge of the High Court. He said that the Residual Control Act, 195o,first came into force on January 1. 1951, and that by virtue of clause 2 thereof was to expire on December 31, of that year. By annual renewal Acts, its operation continued until December 31, 1956, when it died a natural death.

According to the learned advocate’s contention it appears that the Legislature wanted to avoid the inconvenience of annual renewal Acts and, due to the fact that Parliament was not then sitting, the Council of Ministers—acting in pursuancC of its powers under Transitional Consti tution, Art. 7o—passed a Provisional Order making a few amendments to the Act, chief of which was the repeal of section 2 limiting the duration of the Act to the end of I956

That Provisional Order came into force on January 15, 1957, i.e., the date of its puMication in the Sudan Government Gazette.

Sayed Abdel Rahim Musa also contended that even if there was a mistake in the promulgation of the amending Provisional Order it was merely a technical flaw which did not affect the substance of the enactment and that it is therefore the duty of this court to disregard it in order to give effect to the intention of the Legislature.

Concerning the second argument of advocate Mahdi, Sayed Abdel Rahim Musa contended that the act of attempting to transfer currency outside the Sudan between residents of this country is no doubt detri mental to the State’s effective control in the sphere of fo ign exchange, which the Act was meant to protect and promote.

On the question of whether or not the mere giving of a post-dated cheque purporting—in due course—to transfer currency to the drawee outside the Sudan amounted to a contravention of the regulations, Sayed Abdel Rahim Musa agreed with the view of the Honourable the Judge of the High Court that in the particular case, the act constituted an offence even though it was not consummated because failure to cash the cheque was in no way related to the volition of the drawee but was due to reasons entirely outside his control.

These—in short—are the arguments put for and against the conviction, and, for reasons, which I am presently to state, I am of opinion that this conviction cannot stand.

I entirely uphold the contention of the learned advocate for accused that on the state of the law as it at presently stands, there is no provision penalising the act which accused is alleged to have abetted. It is true that our Statute Book contains within its covers what once used to be the Residual Controls Act, 1950, which—by virtue of several renewal Acts—was in force until the end of 1956. At midnight on December 31 of that year it died a natural death by effluxion of time and from that moment it ceased to exist save in the annals of history.

The learned representative of the Attorney-General argued that before the expiry of the Act, the Council of Ministers—in an effort to save the life of the Act—did pass a resolution by way of a Provisional Order under the Transitional Constitution, Art. 70, then in force repealing the section that made the Act inoperative after 1956. He admits that the said resolu tion received the assent of the Supreme Commission on January 3, 1957, and that the Provisional Order was ratified by Parliament sometime after wards. The Transitional Constitution, Art. 70 (2) provides that a resolu tion of this nature acquires the force of law only when the Council of — Ministers receives the assent of the Supreme Commission. So assorning that the assent of the Commission was received by Council of Ministers on January 3. I957 Hen the repealability of the provisions sought to be repealed was a legal impossibility because it was at least three days too late. The situation might of course have been otherwise had the repealing provision contained a rider extending the life of the Act retrospectively to beyond 19ç7. But this was not the case and as such the Provisional Order became nothing but what I may call a ‘lawless law” which—in the domain o’ junsprudene—was no more capable of resuscitating the Act ttian a post-mortem operation can recall a corpse to life in the field of surgery.

The Finance Exchange Control) Regulations, 1957, purporting to have been passed by the Council of Ministers under section 7 of the Act were accordingly ultra vircs- the Council and—having no legislative efficacy whatsoever—can therefore be disregarded with impunity. The person alleged to have attempted the commission of an offence and done nothing to contravene a valid penal provision of law and—in the realm of criminality—the golden principle is nulla poena sine lege. Assuming therefore that accused had abetted Phillip Haggar to do the act referred to, he has—in my view—done art act s hich is no more an offence than if the cheque were drawn on and cashable by a branch of Barclays Bank in Khartoum.

The earned representative of the Attornec-General seems to consider this flaw in the legislation as a mere technicality, which this court should disregard in order to give efficacy to the intention of the Legislature. In my view, this is merely begging the question for the duty of the courts to give effect to the intention of the Legislature arises in the course of interpreting an enforceable enactment and not in the absence of an enactment.

What the learned representative of the Attorney General wants this court to do is in fact to set itself up as a legislative body and fill in a gap in the Statute Book arising by way of legislative inactivity. That would be an attitude which—at any rate in the field of criminal law—would not only amount to a travesty of the spirit and tradition of justice but would be a ghastly breach of the rule of law.

Finally, I would like to deal with a point which seems to have been the subject of confusion not only in the minds of the learned counsel who appeared before this court, but also in the mind of the learned magistrate who tried the case and the Honourable the Judge of the High Court who dealt with it on appeal. It is really not a point which affects the merits of the decision but I am only mentioning it by way of guidance to magistrates who may have to deal with situations of a similar nature. In the present case, the learned magistrate charged acc with abetment of “an attempt” and hence gave an opportunity to the learned counsel for accused and the learned representative of the Attorney-General to argue whether there can be an abetment of an act which did or did not exceed the mere stage of preparation. The offence of abetment has nothing to do with the reaction of intention of the person abetted nor with whether or not the offence has or has not been consummated. The person abetted may have resented the suggestion and reported the matter to the police, or might have asked for a chance to consider the suggestion, or may prepare himself for the commission of the offence without consummating it or may even commit it as abetted. All these are entirely irrelevant to the question of the criminality of the abettor and the charge against him should bear no reference whatsoever to the role-played by the person abetted. The charge sheet should be confined to the offence abetted and no more.

This application is therefore allowed and the conviction of accused is hereby quashed.

Abdel Mdgid Imam 1. August 13, 1966: —I concur.

Osman El Tayeb J. August 13, 1966: —I concur.