Gamini Dissanayake (Petitio... - Human Rights Commission of Sri ...

Gamini Dissanayake (Petitioner In Sc 4/91) V. Kaleel, M.C.M. And Others file:///C:/Documents and Settings/kapilan/My Documents/Google Talk ...
It is clear that discretionary powers, whether conferred by statute or by agreement, must in general be
exercised by the designated repositary of those powers.
" An element which is essential to the lawful exercise of power is that it should be exercised by the authority
upon whom it is conferred, and by no one else. The principle is strictly applied, even where it causes administrative
inconvenience, except in cases where it may reasonably be inferred that the power was intended to be delegable
The maxim delegatus non potest delegare is sometimes invoked as if it embodied some general principle that made
it legally impossible for statutory authority to be delegated. In reality there is no such principle ; and the maxim plays
no real part in the decision of cases, though it is sometimes used as a convenient label. Its proper home is in the law
of agency, where it expresses the point that a principal who must accept liability for the acts of his agent need not
accept it for the acts of his agents agent ; but even here there are wide exceptions. In the case of statutory powers
the important question is whether, on a true construction of the Act, it is intended that a power conferred upon A may
be exercised on A's authority by B. The maxim merely indicates that this is not normally allowable. For this purpose
no distinction need be drawn between delegation and agency. Whichever term is employed, the question of the true
intent of the Act remains ". (Wade, Administrative Law, 5th Edition pp 319-320)
This is not an instance where from its very nature, the power to delegate can be inferred. However, Rule 8
(3) (m) appears to permit the Executive Committee to authorise the Working Committee to exercise powers
conferred on the former. Learned Presidents Counsel's contentions depend almost entirely on the meaning of the
word " vest ": which he seeks to equate to " abdicate ", " renounce " or " alienate ", permanently and irrevocably. On
being asked the ordinary meaning of the word, in the context of power and authority, his reply was that it meant "
clothe ". In law, where a grantor " clothes " another with power or authority, there is no implication of a denudation of
the grantor's powers, nor of irrevocability or permanency. That is also the plain meaning of the word, in every day
usage and in literature, as evidenced in
Shakespeare's immortal lines : " Man, proud man, dressed in a little brief authority ". To dress a grantee
with authority, or to clothe, or vest, him with power, does not imply an irrevocable and permanent renunciation of his
powers by the grantor, " Vest " is thus akin to " delegate ", rather than . to " abdicate ", " Vest " is used in that sense
in the Constitution (e.g. in Articles 118 (g) and 138 (2)). Parliament is authorised by Article 4 (c) directly to exercise
the judicial power of the people in regard to matters relating to the privileges, immunities and powers of Parliament
and its Members. If Parliament were, by law passed in terms of Article 138 (2), to " vest " in the Court of Appeal
power and jurisdiction in respect of the immunities of Members of Parliament, this would be an exercise of legislative
power permitted by, and consistent with, the Constitution. Neither such exercise, nor the result of such exercise,
would be inconsistent with the Constitution. Therefore no question of amending the Constitution can arise, and an
ordinary law would suffice. In particular, such vesting would not involve an abdication or alienation of legislative
power in violation of Article 76. In the same way, the Executive Committee is authorised directly to exercise
disciplinary powers ; if by resolution the Executive Committee " vests " such powers in the Working Committee, that
is permitted by, and consistent with Rule 8 (3) (m). Neither the act, nor the result, of such vesting is inconsistent with
the Party Constitution ; hence no question of amending the Party Constitution arises, and a resolution is sufficient. A
somewhat similar problem arose in Wickramabahu v. Herath, (1) where it was held that
" If in respect of a fundamental right recognised by Article 13 (1) and (2), an Emergency regulation imposes
a restriction which is permitted by Article 15 (7), such regulation does not over-ride, suspend or amend any provision
of the Constitution ; it is a restriction permitted by the Constitution, and is both intra vires and consonant with the
Constitution, and therefore does not 'over-ride' the Constitution."
I hold that the exercise of a power to " vest " permitted by Rule 8 (3) (m) does not over-ride or conflict with
the Rules, but is consistent with the Rules, and requires no amendment of the Rules.
The Petitioners further contend that Rule 8 (3) (m) does not expressly permit the transfer of disciplinary
powers, and that,. even
if it did, both the nature of those powers and the nature of the two Committees justify a presumption that the
Rules did not contemplate any delegation. Undoubtedly, that Rule does not specifically authorise delegation of
disciplinary powers : it might have said " all or any of the powers and functions ", or " including those specified in
paragraph (a) ", and the matter would then have been unarguable. But in my view such a provision was unnecessary.
Rule 8 (3) (m) as it stands makes express provision covering the vesting of disciplinary powers
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