AGYEKUM vs. BOADI [1999-2000] 2 GLR 1

CASE REFERRED TO:

Commission on Human Rights and Administrative Justice v Attorney-General [1999-2000] 1 GLR 35, SC; sub nom Commission on Human Rights and Administrative Justice (No l) v Attorney-General [1998-99] SCGLR 87.

REFERENCE from Circuit Court, Accra under article 130(2) of the Constitution, 1992 for the ruling of the Supreme Court as to: (i) whether or not the deconfiscation order directed by the President through the Confiscated Assets Committee in respect of a confiscated estate house was in contravention of the letter and spirit of the Constitution, 1992, particularly section 35(1) and (2) of the transitional provisions thereof; and (ii) whether or not section 3 of PNDCL 325 was in contravention of section 35(2) of the transitional provisions of the Constitution, 1992. The facts are fully set out in the ruling of the court delivered by Acquah JSC.

T A Nelson-Cofie for the plaintiff.

Kobina Darko Asiedu for the defendant.

Acquah JSC. Delivered the ruling of the court. This is a reference from the Circuit Court, Accra, for the determination of the following issues:

“(i) whether or not the deconfiscation order directed by the President of the Fourth Republic through the Confiscated Assets Committee in respect of the said house is in contravention of the letter and spirit of the Constitution, 1992, particularly section 35(1) and (2) of the transitional provisions of the said Constitution; and (ii) whether or not section 3 of the Confiscated Assets (Removal of Doubt) Law, 1993 (PNDCL 325), is in contravention of section 35(2) of the transitional provisions of the Constitution, 1992.”

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The background to the reference was that one Group Captain P K Agyekum (Rtd) acquired by way of a lease from the State Housing Corporation in 1960, estate house No 1153 Awudome Estate, Accra. The estate house was later confiscated by the erstwhile Armed Forces Revolutionary Council (AFRC) and allocated in January 1990 to the Office of the State Security and Foreign Affairs for the use of Ex-WO I Adjei Boadi, a former member of the Government of the AFRC. In a letter dated 18 April 1997, addressed to the security co-ordinator, the President directed the deconfiscation and return of the estate house to its former owner, Group Captain P K Agyekum. On 23 May 1997, another letter was written requesting the occupant, Ex WO I Adjei Boadi, to vacate the premises and hand over the keys on or before 30 June 1997. However, Ex-WO I Adjei Boadi refused to vacate the premises. Accordingly, Group Captain P K Agyekum took out a writ of summons at the Circuit Court, Accra, claiming against Ex-WO I Adjei Boadi: (a) recovery of possession of estate house No 1153, Awudome Estate, Accra; and (b) general damages for trespass or for use and occupation.

In his defence, Ex-WOI Adjei Boadi admitted the fact of the deconfiscation but challenged the deconfiscation on the grounds that the same was void and invalid by virtue of the transitional provisions to the Constitution, 1992. On the basis of this challenge, the above questions, posed for this court’s determination, were formulated.

Now, the reference papers from the circuit court included: (i) the letter of allocation of the estate house to the Office of the State Security and Foreign Affairs; (ii) the letter of deconfiscation dated 18 April 1997; and (iii) the letter of 23 May 1997 requesting the defendant to vacate the house by 30 June 1997.

In his statement of case, Ex-WO I Adjei Boadi contended that the deconfiscation was not in line with, or was in contravention of section 35(1) and (2) of the transitional provisions of the Constitution, 1992. He states:

“It is the submission of the defendant that the deconfiscation is not lawful, it being in contravention of the provisions of section 35(1) and (2) of the transitional provisions of the Constitution, 1992. Subject to subsection (2), section 35(1) ousts the jurisdiction of any authority under the Constitution, 1992 to reverse the confiscation of any property and any other

[p.6] of [1999-2000] 2 GLR 1 penalties imposed by or under the authority of AFRC. It is submitted that the two subsections of section 35 of the transitional provisions of the Constitution, 1992 must be read together to get the import of this provision. When so read together, it becomes clear that the only body or authority vested with the power to deal with or investigate issues related confiscated assets is the Commission on Human Rights and Administrative Justice (CHRAJ) . . . It is therefore respectfully submitted that the alleged deconfiscation of house No 1153 Awudome Estate, Accra, by the President without any reference to CHRAJ is unlawful.”

He thereafter referred to sections 3 and 4 of the Confiscated Assets (Removal of Doubt) Law, 1993 (PNDCL 325) and submitted that:

“The two provisions contravene section 35 of the transitional provisions to Constitution to the extent that whilst the PNDC is no more existence it does not make reference to the role of CHRAJ in such matters as provided for under the Constitution, 1992.

It is therefore submitted that the provisions of PNDCL 325 being in contravention of the Constitution, 1992 any action taken or purported to have been taken pursuant to that Law is unconstitutional and therefore unlawful.”

Group Captain Agyekum, on the other hand, in his statement of case, submitted that:

“By section 32(1) of the transitional provisions of the Constitution, 1992 the house in dispute is vested in the President who is the Chief Executive of the State. He, representing the government has the right and authority to deconfiscate the house on behalf of the State. The defendant relies on section 35(1) of the transitional provisions of the Constitution, 1992 in opposing the application in court. I respectfully submit that this section must be read in conjunction with section 34(2) of the transitional provisions of the Constitution, 1992 where actions taken by the PNDC cannot be questioned in any proceedings in any court or tribunal. The plaintiff in this case is not questioning the action of the PNDC; he is asking the court to give effect to what the successor of the PNDC, ie the present government, through the President, has directed . . .

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CHRAJ can only assume jurisdiction where property was confiscated on the basis of his holding a public or political office or any other basis.”

To Group Captain Agyekum, PNDCL 325 did not conflict with any provision of the Constitution, 1992.

Now, although the PNDC is no more, a vacuum has not been created by the Constitution, 1992 in respect of enactments like PNDCL 325 wherein PNDC is mentioned; for, section 29 of the transitional provisions of the transitional provisions of the Constitution, 1992 takes care of that. This reference therefore seeks an interpretation of section 35(1) and (2) of the transitional provisions vis-à-vis the Confiscated Assets (Removal of Doubt) Law, 1993 (PNDCL 325), particularly sections 3 and 4 thereof. It is true that article 130(2) of the Constitution, 1992 empowers any court to refer a question of law to this court, but where that question has already been determined by the court, then no reference arises, as the court which intends to refer that question of law is bound under article 129(3) of the Constitution, 1992 to follow the decision of this court on that question of law. The article reads:

“(3) The Supreme Court may, while treating its own previous decisions as normally binding, depart from a previous decision when it appears to it right to do so; and all other courts shall be bound to follow the decisions of the Supreme Court on a question of law.”

(The emphasis is mine.) Now, the meaning and scope of section 35(1) and 2 of the transitional provisions of the Constitution, 1992 and PNDCL 325, particularly section 4 thereof, had been the subject-matter of a writ No 3/96, filed in the Supreme Court in the case of Commission on Human Rights and Administrative Justice (No 1) v Attorney-General [1998-99] SCGLR 871 (the CHRAJ case).

The facts in the CHRAJ case (supra) were that one Colonel Tachie-Menson (Rtd) submitted a complaint dated 15 August 1994 to CHRAJ pursuant to section 35(2) of the transitional provisions of the Constitution, 1992 praying for the restoration of his movable and immovable properties confiscated to the State by the AFRC Special Court in or around 1979. He also prayed for the restoration of his end of service benefits. The complainant asserted that from 4 June 1979 to 24 September 1979 when the

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AFRC constituted the Government of Ghana, he continued to act as Ghana’s Ambassador to Italy. On 12 October 1979, however, it was published in one of the State-owned newspapers that he had been sentenced to 25 years imprisonment and that his assets and those of his wife had been confiscated to the State by the special court. The complainant instructed his solicitors to apply before the special tribunal for a review of the sentence imposed by the special court, claiming that he had never been tried, nor was he aware that charges had been preferred against him. The application for review, it was alleged, was never heard by the special tribunal, but the complainant was granted safe conduct back to Ghana in 1987 by the Co-ordinator, Revenue Commissioners and Investigations. Having returned to Ghana, he wrote other petitions to the President and other State organs, challenging his conviction and sentence and requesting the restoration of his confiscated assets. These petitions were not successful. After the coming into force of the Constitution, 1992 and the establishment of CHRAJ, he decided to complain to CHRAJ under section 35(2) of the transitional provisions of the Constitution, 1992.

Accordingly, CHRAJ commenced investigations into the complaint; but the Attorney-General objected to CHRAJ’s power to investigate the complaint on the grounds that CHRAJ cannot investigate judgments and orders of a court of competent jurisdiction such as the AFRC Special Court, which had convicted and sentenced the complainant. CHRAJ therefore issued writ No 6 assert its right to investigate and possible restore properties confiscated during the AFRC and PNDC administrations by courts or tribunals. In that writ, CHRAJ claimed against the Attorney-General a declaration that:

“(a) Section 35(2) of the transitional provisions of the Constitution, 1992 which empowers the plaintiff to restore properties confiscated by the State, applies to and embraces all confiscations of property made by the Armed Forces Revolutionary Council and the Provisional National Defence Council under any Decree or Law made by those councils, whether such confiscations were made by a special court or tribunal such as the Armed Forces Revolutionary Council Special Court set up under the AFRC (Special Courts) Decree, 1979 (AFCRD (3)

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(as amended by the AFRC (Special Courts) (Amendment) Decree, 1979 (AFRCD 19); and

(b) even assuming (which is denied) that the plaintiff has no jurisdiction under the said section 35(2) of the transitional provisions of the Constitution, 1992 to entertain a petition for the restoration of confiscated property where the initial confiscation was made by a special court or other judicial tribunal, the plaintiff’s power under section 35(2) would become exercisable where the initial confiscation is later confirmed by a subsequent Decree or Law such as the Confiscated Assets (Removal of Doubt) Law, 1993 (PNDCL 325).”

Seven issues were agreed for determination, to wit:

“(1) Whether the plaintiff’s power under section 35(2) of the transitional provisions of the Constitution, 1992 to restore confiscated properties extends to and covers confiscations made by a special court or tribunal such as the Armed Forces Revolutionary Council Special Court set up under AFRCD 3 as amended by the AFRC (Special Courts) (Amendment) Decree, 1979 (AFRCD 19).

(2) Whether, if the answer to issue (1) is in the negative, the plaintiff’s power under section 35(2) of the transitional provisions of the Constitution, 1992 would, nevertheless, become exercisable or operative where the initial confiscation is later confirmed by a subsequent Decree or Law such as the Confiscated Assets (Removal of Doubt) Law, 1993 (PNDCL 325).

(3) Whether under issue (1), the plaintiff would be entitled to enquire into an allegation by the petitioner that he was never tried, convicted and sentenced by the AFRC Special Court.

(4) Whether or not the plaintiff has jurisdiction to review any decision of any court, special court or tribunal established by and under the authority of the Armed Forces Revolutionary Council (AFRC) or the Provisional National Defence Council (PNDC) within the meaning of section 34(3) and (4) of the transitional provisions of the Constitutions, 1992.

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(5) Whether plaintiff can exercise supervisory jurisdiction over decisions of courts properly established under the authority of the AFRC and PNDC.

(6) Whether or not the plaintiff has power under section 35(2) of the transitional provisions of the Constitution, 1992 to restore properties confiscated by AFRC and PNDC, which confiscations were subsequently confirmed by Decrees or Laws such as the Confiscated Assets (Removal of Doubt) Law, 1993 (PNDCL 325).

(7) Whether or not the plaintiff’s writ and statement of case disclose any cause of action against the defendant.

Section 35(1) and (2) of the transitional provisions reads:

“35. (1) Subject to subsection (2) of this section, any confiscation of any property and any other penalties imposed by or under the authority of the Armed Forces Revolutionary Council and the Provisional National Defence Council under any Decree or Law made by that Council, shall not be reversed by any authority under this Constitution.

(2) Where any property or part of any property of a person was confiscated on the basis of his holding a public or political office or on any other basis, and it is established to the satisfaction of the Commissioner for Human Rights and Administrative Justice that the property or that part was acquired before he assumed the public or political office, or that it was otherwise lawfully acquired, the property or that part shall be returned to that person.”

For a better appreciation of the case of the parties in the CHRAJ case, it is vital to look at how confiscation of property and assets were effected at the time. During the AFRC and PNDC regimes, various judicial and quasi-judicial bodies were established by statute with power, inter alia, to order confiscation of assets and bank accounts, including: (i) the AFRC Special Courts, established under the Armed Forces Revolutionary Council (Special Courts) Decree, 1979 (AFRCD 3) as amended by AFRCD 19; (ii) the AFRC Special Tribunal set up under the Armed Forces Revolutionary Council (Special Tribunal and Other Matters) Decree, 1979 (AFRCD 23); (iii) the Citizens Vetting Committee established under the Citizens Vetting Committee Law, 1982 (PNDCL 1); (iv) the National Investigations Committee established by virtue of

[p.11] of [1999-2000] 2 GLR 1 the National Investigations Committee Law, 1982 (PNDCL 2); (v) the Office of the Revenue Commissioner set up under the Revenue Commissioners Law, 1984 (PNDCL 80); (vi) the State Housing (Allocation Policy and Implementation) Commission established by the State Houses (Allocation, Policy and Implementation) Commission, 1984 (PNDCL 83); and (vii) the public tribunals set up under the Public Tribunals Law, 1984 (PNDCL 78). Each of the above bodies had authority to order confiscation of assets or bank accounts following a trial or investigation of affected persons. Apart from confiscations made by these bodies, the AFRC and the PNDC themselves, by virtue of Decrees or Laws or both, made other confiscations. Thus, by section 1 of the Forfeiture of Assets and Transfer of Shares and other Proprietary Interests (Unipress Limited) Law, 1982 (PNDCL 3), the assets and bank accounts of Unipress Limited were confiscated to the State. Again the Forfeiture of Assets (Amadu Duri) Law, 1982 (PNDCL 9) also confiscated all the assets of one Amadu Duri. These and similar confiscations made by the AFRC and PNDC themselves were made by virtue of laws passed to that effect, and not as a result of a trial or investigation by any of the seven bodies listed earlier.

The case of the plaintiff, the Commission on Human Rights and Administrate Justice, in the CHRAJ case (supra) was that it had authority under section 35(2) of the transitional provisions of the Constitution, 1992 to deconfiscate, if satisfied, the assets and bank accounts confiscated either by the AFRC and PNDC themselves under a law or by any of the courts or tribunals and a the investigative bodies established by the said regimes. However, on the contrary, the defendant, the Attorney-General, contended that the commission’s authority under the said section 35(2) of the transitional provisions of the Constitution, 1992 was in respect of confiscations by the AFRC and PNDC themselves under the law, and that the commission had no authority to review and deconfiscate assets confiscated by the AFRC and PNDC courts or tribunals and the investigative bodies.

Now, according to the plaintiff-commission in the CHRAJ case, (supra) the combined effect of section 35(1) and (2) of the transitional provisions of the Constitution, 1992 was that it had authority to restore confiscated properties whether by a court or tribunal, but could not review any other penalties imposed by

[p.12] of [1999-2000] 2 GLR 1 courts or tribunals. Thus, in its written submission, the commission argued that:

“. . . if the makers of the Constitution, 1992 intended to exclude confiscations ordered by courts and tribunals they would have stated so expressly in the same manner as ‘any other penalties’ were excluded from the ambit of section 35(2). Section 35(2) flows from section 35(1) of the transitional provisions of the Constitution, 1992, and the two cannot be construed in isolation. The expression used in section 35(1) is ‘any confiscation’ without distinction as to the means by which the act of confiscation arose.”

Having conceded that other penalties are excluded in section 35(2), the next obvious question is whether the plaintiff-commission would have authority to restore a confiscated property if the confiscation was part of the penalty imposed by a court. Thus the Attorney-General, in paragraph (16) of his written submission, stated: “The issue, in our humble submission, is whether ‘any other penalties’ may not include a confiscation. What is the ordinary meaning to be assigned to the words ‘confiscation’ within section 35(1).” The Attorney-General, then, in his paragraphs (17) and (18) of his statement of case argued:

“(17) In our submission, a penalty may be the result of a court order and may involve a confiscation. In such a case, because the confiscation is in the nature of or part of a judicial or quasi-judicial penalty, it cannot fall under section 35(2) of the transitional provisions of the Constitution, 1992. The penalty imposed by a judicial or quasi-judicial tribunal are so inextricably interwoven that one cannot separate the penalties imposed by calling one a forfeiture or confiscation of property and the other an imprisonment, fine or death penalty. How can one determine that the forfeiture or confiscation was unlawful when he cannot review the penalties as a whole? In any case, section 35(2) of the transitional provisions of the Constitution, 1992 talks of the basis of confiscation being the result of holding a public or political office or on any other basis’. In our submission, the courts or quasi-judicial bodies established by law do not make orders based on holding public, political or on any other office, but they try, convict or fine, and

[p.13] of [1999-2000] 2 GLR 1 sentence or impose penalties on public, political or other office holders based on a criminal charge or some illegal conduct in their establishing enactment: Thus, a public, political or other office holder, who is convicted and sentenced by a court or is found liable, and a penalty imposed by a tribunal including the confiscation of his assets cannot fall within the meaning of section 35(2). Section 35(2), in its ordinary meaning, will not include penalties or confiscations resulting from the holding of public, political or any other office.

(18) It may be argued that the words ‘any other basis’ include convictions and sentences by a court of competent jurisdiction. But ‘any other basis’ can only be read ejusdem generis with public or political office. The ordinary meaning of the words cannot extend to convictions based on a charge for the commission of a criminal offence by a court of competent jurisdiction. Neither can it extend to findings and penalties imposed by competent judicial or quasi-judicial tribunals. The confiscation must be based on the holding of a public or political office, or an office in the nature of, or incidental to, a public or political office, before section 35(2) of the transitional provisions of the Constitution, 1992 can be applicable. It cannot apply just in any other case unrelated to the holding of an office per se. If this were not so, then there was no reason for—the framers of the Constitution, 1992 to have referred to holders of public or political office specially. There would also not have been the need to have referred to the words ‘or otherwise lawfully’ following upon the words ‘public or political office’ in the last four lines of section 35 (2) above.”

Referring further to section 34 of the transitional provisions, of the Constitution, 1992 the Attorney-General in the CHRAJ case (supra) pointed out that section 34(3) of the transitional provisions of the Constitution, 1992 made it abundantly clear that judicial or purported judicial acts of the regimes under reference shall not be questioned in any proceedings whatsoever, and it shall not be lawful for any court or any other tribunal to make any order or grant any remedy or relief in respect of any such acts.

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Accordingly, the Attorney-General contended that the non-exception of section 34 under section 35 was deliberate in view of the language of section 35(1) of the transitional provisions of the Constitution, 1992. Section 35(1) provided a complete ban on any deconfiscations of any property and any other penalties imposed during the AFRC and PNDC era. The exception it made under section 35(2) of the transitional provisions of the Constitution, 1992 was only in respect of where any property or part of any property of a person was confiscated on the basis of his holding a public or political office or on any other basis, and it is established to the satisfaction of the commission that that part was acquired before he assumed the public office or political office, or that it was lawfully acquired.

On the basis of these rival submissions, the Supreme Court (Charles Hayfron-Benjamin, Ampiah, Adjabeng, Atuguba and Sophia Akuffo JJSC), in its unanimous decision read by Charles Hayfron-Benjamin JSC, held in respect of the issues relevant to this case, first, that the Commission on Human Rights and Administrative Justice, though in its investigative functions had certain powers akin to those of the regular courts and tribunals, had no judicial power in the performance of its functions. Thus, it had no power to review decisions of other courts or tribunals; nor did it possess any supervisory powers over such courts or tribunals. In the words of the court at 883 :

“. . . the plaintiff commission has neither the power to review decisions of other courts or tribunals; nor does it possess any supervisory power in respect of such courts or tribunals . . . for it cannot be said that the commission has carte blanche authority to roam the highways and bye-ways of the legislative, judicial and executive intents and acts of the erstwhile AFRC, and PNDC and the courts or tribunals, in the exercise of its powers of investigation in search of cases and matters which it may review and over which it may exercise any semblance of a supervisory function or jurisdiction.”

As a follow-up of the above holding, the court then held that the commission was not entitled, under section 35(2) of the transitional provisions of the Constitution, 1992 to review and restore to the former owners, where it was satisfied, properties and assets confiscated by the orders or decisions of the special courts or tribunals set up by the AFRC and the PNDC. The expression “or

[p.15] of [1999-2000] 2 GLR 1 on any other basis” in section 35(2), the court continued, must be construed ejusdem generis with the expression “on the basis of his holding a public or political office.” Thus construed, the court held (as stated in holding (2) of the headnote) that the expression “or on any other basis” meant “or on the basis of holding any public or political office so designated by law or akin to such office with similar powers and responsibilities.” The court also noted at 891—892 thus:

“In our respectful opinion, it matters not whether such public or political office is held substantively or honorary. The important thing, is proof that the confiscated asset or any part thereof was acquired before the assumption of that office. The classes of persons thus affected are limited to former public and political functionaries. It is not open to the generality of the citizenry to avail themselves of this sub-section. Construing section 35 of the transitional provisions as a whole, section 35(1) constitutes a clamp tight barrier against the reversal by any authority under this Constitution, ‘of any confiscation of any property and any other penalties imposed . . .’ while subsection (2) thereof merely creates a ‘chink’ wherein a limited class of persons—public or political officers—may obtain redress . . . The plaintiff commission contends that a combination of its powers under section 35(2) and what it considers to be the retrospective effect of PNDCL 325 . . . gives it the power to review all confiscated property and if it is satisfied, restore the proper-ties and assets to their former owners. In our respectful opinion, such a proposition surely has within it an uncertain ambit, which would permit the plaintiff commission to ferret about the archives of the past military regimes in order to fulfil the functions of its office. Such power will also be speculative and extend the limited discretionary power into areas of constitutional conflicts.”

As to who has power to restore confiscated property not covered by section 35(2) of the transitional provisions of the Constitution, 1992, the court held that in terms of section 4 of PNDCL 325 and section 29(3) of the transitional provisions of the Constitution, 1992, it was the President. As the court put it at 880:

“It must be mentioned in passing, that PNDCL 325, which came into force on 23 April 1993, a date which postdates the

[p.16] of [1999-2000] 2 GLR 1 coming into force of the 1992 transitional provisions, is a valid piece of legislation and is currently of full force and effect.”

Then at 892, the court went on:

“The defendant urges the court to accept his several submissions in opposition to the plaintiff’s contention that it has power to do the things it claims in its writ. The defendant submits further that: ‘[We] cannot urge this court to grant the plaintiff a power to restore properties not covered by section 35(2). We think no such power exists.’ The defendant is right. The exercise of that power rests with the President in terms of section 4 of PNDCL 325 and section 29(3) of the transitional provisions of the 1992 Constitution.”

Now, from the decision in the CHRAJ case, the answers to the two questions posed for our consideration are quite clear: First, the deconfiscation by the President cannot be said to be in contravention of section 35(1) and (2) of the transitional provisions of the Constitution, 1992; for, as held by the court, the Commission on Human Rights and Administrative Justice has no authority to deconfiscate properties which were confiscated by the courts or tribunals and the investigative bodies set up by the Armed Forces Revolutionary Council (AFRC) and the Provisional National Defence Council (PNDC). The commission’s authority is in respect of confiscations made by Decrees or Laws of the AFRC and the PNDC. And even in respect of these confiscations, only a limited class of persons holding public or political office may obtain redress. Secondly, PNDCL 325 was held to be a valid piece of legislation of full of force and effect. Sections 3 and 4 of this Law state:

“3. Notwithstanding the provisions of the Confiscated Assets Committee Decree, 1979 (AFRCD 25), any confiscated assets held by the Confiscated Assets Committee shall be released by the said Committee to such person, organization or body as the Provisional National Defence Council may in writing direct.

4. Notwithstanding the other provisions of this Law or any other law, the Provisional National Defence Council may in writing release any assets confiscated to the State to such person as the Council may determine.”

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Under both sections 3 and 4 of PNDCL 325, the responsibility lies on the PNDC, now the President under section 29(3) of the transitional provisions, to authorise the release of a confiscated asset or property to any person, organisation or body. Section 2(1) of the Confiscated Assets Committee, Decree, 1979 (AFRCD 25), spelt out the functions of the Confiscated Assets Committee; one of which functions, according to section 2(1)(c), was to ensure that the beneficiaries of confiscated assets and properties did not include individuals and non-State organisations. Section 3 of PNDCL 325 seeks to amend this limitation to enable confiscated assets and properties to be released to any person, organisation or body as directed by the PNDC. Since in both sections 3 and 4 of PNDCL 325, it is the President who is to direct the release (and the decision in Commission on Human Rights and Administrative Justice (No 1) v Attorney-General [1998-99] SCGLR 871 upholds the constitutionality of the exercise of such power by the President), it would follow by that decision that section 3 likewise passes the test of constitutionality.

Reference determined accordingly.

LSNA