[PRIVY COUNCIL]

AND

ON APPEAL FROM THE SUPREME COURT OF CEYLON

Ceylon - Constitution - Legislation - Validity - Whether contrary to fundamental principles of justice - Legislation ad hominem and ex post facto directed to particular criminal proceedings - Severance of powers between legislature, executive and judiciary - Whether intra vires - Ceylon Charter of Justice, 1833 - Courts Ordinance, 1890 (Legislative Enactments of Ceylon, 1956, Rev. c. 6) Evidence Ordinance, 1896 (Legislative Enactments of Ceylon, Rev. 1956, c. 14) - Colonial Laws Validity Act, 1865 (28 & 29 Vict. c. 63), ss. 2, 3 - Ceylon (Constitution and Independence) Orders in Council, 1946 and 1947 - Ceylon Independence Act, 1947 (11 & 12 Geo. 6, c. 7), ss. 1 (1) (2) (3), Sch. 1, 1 (2), 2 - Criminal Law (Special Provisions) Act, No. 1 of 1962 - Criminal Law Act, No. 31 of 1962.

Colony - Ordinance - Validity - Whether natural justice relevant - Colonial Laws Validity Act, 1865, ss. 2, 3.

The Criminal Law (Special Provisions) Act, No. 1 of 1962, passed by the Parliament of Ceylon on March 16, 1962, contained substantial modifications of the Criminal Procedure Code, inter alia, by purporting to legalise ex post facto the detention for 60 days of any persons suspected of having committed an offence against the State, by widening the class of offences for which trial without a jury by three judges nominated by the Minister of Justice could be ordered, by allowing arrest without a warrant for waging war against the Queen and prescribing new minimum penalties for that offence and for conspiring to wage war against the Queen and overawe the government by criminal force, and by widening the scope of that offence. The Act also provided for the admission in evidence of certain confessions and statements to the police inadmissible under the Evidence Code.

The Act was expressed to be retrospective to cover an abortive coup d'etat on January 27, 1962, in which the appellants took part, and was to cease to be operative after the conclusion of all legal proceedings connected with or incidental to any offence

[Reported by S. P. KHAMBATTA, ESQ., Q.C.]

against the state committed on or about the date of the coup or from one year after the date of the commencement of the Act, whichever was later.

The Criminal Law Act, No. 31 of 1962, substituted the Chief Justice for the Minister of Justice as the person to nominate the three judges before whom trial without a jury might be ordered, but left unaffected other provisions of the former Act, including those above summarised.

In April, 1965, the Supreme Court of Ceylon, consisting of three judges nominated by the Chief Justice, convicted the appellants of (1) conspiring to wage war against the Queen; (2) conspiring to overawe, by means of criminal force or the show of criminal force, the Government of Ceylon; and (3) conspiring to overthrow otherwise than by lawful means the Government of Ceylon by law established, and sentenced them to ten years' rigorous imprisonment and forfeiture of all goods, the minimum prescribed by the Act No. 1 of 1962.

On appeal to the Privy Council on the ground that the legislation of 1962 was ultra vires

Held, (1) that the Acts could not be challenged on the ground that they were contrary to the fundamental principles of justice. The Colonial Laws Validity Act, 1865, which provided that colonial laws should be void to the extent that they were repugnant to an Act of the United Kingdom applicable to the colony but not otherwise and should not be void on the grounds of repugnancy to the law of England, did not leave in existence a fetter of repugnancy to some vague and unspecified law of natural justice: those liberalising provisions were incorporated in, and enlarged by, the Ceylon Independence Act, 1947, of the British Parliament, the joint effect of which, with the Ceylon (Constitution) Order in Council, 1946, was to confer on the Ceylon Parliament the full legislative powers of a sovereign independent state (post, pp. 284G - 285B, 286A).

Ibralebbe v. The Queen [1964] A.C. 900; [1964] 2 W.L.R. 76; [1964] 1 All E.R. 251, P.C., applied.

Campbell v. Hall (1774) 1 Cowp. 204 considered.

(2) That the Acts, directed as they were to the trial of particular prisoners charged with particular offences on a particular occasion, involved a usurpation and infringement by the legislature of judicial powers inconsistent with the written Constitution of Ceylon, which, while not in terms vesting judicial functions in the judiciary, manifested an intention to secure in the judiciary a freedom from political, legislative and executive control and, in effect, left untouched the judicial system established by the Charter of Justice, 1833. The silence of the Constitution as to the vesting of judicial power was consistent with its remaining where it was and inconsistent with any intention that it should pass to or be shared by the executive or the legislature (post, pp. 287D - 288A, 290E - 291D, F - 292A). The Acts were accordingly ultra vires and void, and the convictions could not stand.

Bribery Commissioner v. Ranasinghe [1965] A.C. 172; [1964] 2 W.L.R. 1301; [1964] 2 All E.R. 785, P.C. applied.

Decision of the Supreme Court of Ceylon (1965) 67 N.L.R. 193 reversed.

APPEAL (No. 25 of 1965) by special leave in forma pauperis from the judgment and sentence of the Supreme Court of Ceylon (Sansoni C.J., Fernando and de Silva JJ.) (April 6, 1965) whereby the appellant, Don John Francis Douglas Liyanage, and ten others were each convicted under section 115 of the Penal Code (as amended by the Criminal Law (Special Provisions) Act, No 1 of 1962) of three offences: (1) of conspiring to wage war against the Queen; (2) of conspiring to overawe, by means of criminal force or the show of criminal force, the Government of Ceylon; and (3) of conspiring to overthrow otherwise than by lawful means the Government of Ceylon by law established. Each of the appellants was sentenced to ten years' rigorous imprisonment and to forfeit all his property, as required by Act No. 1 of 1962.

1965. October 27, 28. November 1, 2, 3. E. F. N. Gratiaen Q.C., H. W. Jayewardene Q.C. (Ceylon), Dick Taverne Q.C., Walter Jayawardena, Montague Solomon and S. J. Kadirgamar(Ceylon) for the appellants. The appellants were tried for three offences committed in respect of an abortive coup d'etat on January 27, 1962. The Ceylon legislature passed the Criminal Law (Special Provisions) Act, No. 1 of 1962 conferring upon the Minister of Justice the power of nominating three judges to try the appellants (s. 9). The Supreme Court held in Reg. v. Liyanage¹ that the power given by that section was ultra vires the Constitution on the grounds: (a) that the power of nomination conferred on the Minister was an interference with the exercise by the judges of the supreme court of the strict judicial power of the state vested in them by virtue of their appointment in terms of section 52 of the Ceylon (Constitution) Order in Council, 1946, or was in derogation thereof; (b) that the power of nomination was one which had hitherto been invariably exercised by the judicature as part of the exercise of the judicial power of the state and could not be reposed in anyone outside the judicature; and (c) that the power of nomination conferred on the Minister offended against the cardinal principle that nothing was to be done which created even a suspicion that there had been an improper interference with the course of justice as restated by Lord Hewart in Rex v. Sussex

1 (1963) 64 N.L.R. 313.

Justices, Ex parte McCarthy.² The Supreme Court accordingly held that the invalidity of the power conferred by section 9 deprived them of jurisdiction to enter upon a trial of the appellants. Before the Supreme Court the appellants contended that the Constitution recognised a separation of powers of government similar to the constitutions of the United States of America, Australia, Canada, South Africa and India. The Crown contended that no separation of powers existed under the Ceylon constitution, and that, if a separation of powers existed dehors the written constitution, it was a separation on the lines of the British constitution, as Ceylon had been accustomed to that kind of separation throughout British occupation. The judges of the supreme court held that their nomination by the Minister was ultra vires the Constitution and therefore they could not try the case. That judgment held further that a separation of the three powers or functions of government was embodied in the Constitution given by the Ceylon (Constitution) Order in Council, 1946, and that judicial power, in the sense of the judicial power of the state, was vested in the judicature, the established civil courts of the country.

The Criminal Law (Special Provisions) Act, No. 1 of 1962 purported, ex post facto, to create new offences after the acts complained of had been committed, and to alter the rules of evidence and criminal procedure obtaining under the general law at the time when the offences were committed in a context where the intention was manifest to do away with the prohibitions under the general law of certain kinds of evidence, and purporting further to impose enhanced punishments even up to the sentence of death and a compulsory confiscation of property. [Reference was made to sections 4, 5, 6, 11, 12, 17, 19, 21, 36, 37, 38.] Thus the Act swept away the protections given by the general criminal law to all accused persons to ensure them a fair trial.

The appellants and the other accused at the time were all remanded again to custody by those judges, and a new amendment repealing the offending Act was passed in November, 1962 (the Criminal Law Act, No. 31 of 1962) whereby a court properly qualified under the law was appointed by the Chief Justice to try the appellants. The trial commenced on June 3, 1963, and judgment was pronounced on April 6, 1965.

The principal question for determination was whether the ex post facto legislation introduced by the legislature in 1962 especially in order to deal with the trial of the appellants was valid or not.

2 [1924] 1 K.B. 256; 40 T.L.R. 80.

This turned upon the language of the Constitution itself which conferred legislative power, and upon the consideration of that language in the light of the status of Ceylon as a Crown Colony, and, in the light of the source from which that legislative power was derived.

Since 1833 the judicial functions were declared by the Charter of 1833 to be for the future entirely separate from the legislature and the executive in regard to the performance of judicial functions. In accordance with the established principles of dispensing justice and in accordance with the judicial oath, which every member of the judiciary takes before entering upon his duties, the judge's duty is to do justice to all men equally. Since 1833, the separation of the judiciary from the legislature was apparent in all legislative enactments which were relevant. It was recognised and further protected by the Ceylon (Constitution) Order in Council, 1946. That Order conferred on the parliament of Ceylon a purely legislative function, something which was in its very nature very much less than the general powers which vested in Britain in a sovereign parliament. One of the principal reasons for impugning the ex post facto legislation was that it sought under the guise of legislation to direct the judges to try a particular case in a different way from the way in which they would try a similar case in accordance with the general rules of evidence and procedure; and, further, that it sought under the guise of legislation to direct them to impose new punishments and to administer new criminal laws which were not in force at the time.

It was therefore necessary to consider not merely the language of the Constitution itself which conferred legislative power but to consider that language in the light of (1) the status of Ceylon as a Crown Colony until it was granted full independence in 1947; (2) the source from which that legislative power was derived, whether it was derived from an Act of the Imperial Parliament, or from the Crown in the exercise of its prerogative right to legislate in respect of colonies by way of transfer; and (3) what was "law" or what were "laws" in the context of a strictly legislative power. In the case of a conquered or ceded colony one would have regard to the former laws of that colony which continued to have validity after the conquest or cession.

Until 1796, immediately preceding the conquest, Ceylon was a Dutch colony as far as the Maritime Provinces were concerned; while in the centre of Ceylon the Kandyan Kingdom survived as a separate kingdom. The history of the matter was set out in The Laws of Ceylon by Walter Pereira, pp. 1-6. The Dutch

as the rulers of the Maritime Provinces capitulated on February 15, 1796, and the terms of capitulation were set out in an Instrument.

One of the requests made by the Dutch was: "The citizens and other inhabitants shall be allowed to follow their employments, and enjoy all liberties and privileges as subjects of His Majesty," i.e., of England (Article 19). In accordance with those arrangements the British Proclamation of 1799 adopted the general Roman-Dutch law for certain purposes, in particular, for the administration of justice and police, which was to be "exercised by all courts of judicature, civil and criminal, ministers and ministerial officers according to the laws and institutions that subsisted under the ancient Government of the United Provinces," the Dutch Government.

By a Convention of March 2, 1815, the Kingdom of Kandy which survived the earlier conquest was ceded to England. Subject to the limited operation of special native laws of certain inhabitants of the country, such as Kandyans and Tamils, the Roman-Dutch law was considered and acted upon as the law of the land: The Laws of Ceylon, Pereira, p. 4. From time to time thereafter there had been various Charters of Justice entrusting the Governor of Ceylon as representing the Queen with judicial powers, legislative powers and executive powers. Under his judicial powers the Governor was the final court of appeal in the country. There were some very unpleasant collisions between the Governor, who was invested with judicial powers, and the British judges, who administered justice, and it was in that situation that the Ceylon Charter of Justice, 1833, came into law. It was an historic document because it was the first occasion on which it was decreed that the judicial functions of the judges should be completely separated from the legislative and executive functions of government. Together with the Charter, the Imperial Government sent instructions to the Governor calling upon him to "rigidly adhere to the rules by which the Charter separates the functions of the judges from your own," i.e., the Governor as head of the executive and the legislative authority. Ever since 1833 there had been similar provisions for the separation of the courts as courts of judicature and nothing to indicate at any time that the rule for a separation of those functions was to be altered in any way. In 1946 the judge's functions were given very much greater protection.

The 1946 constitution, whilst retaining the status of Ceylon as a Crown Colony, granted internal self-government. This constitution was laid down by an Order in Council and not by an Act of the Imperial Parliament. It was passed by the Crown in the

exercise of its legislative powers. Part III, section 7 provided for a legislature. Section 29 provided for the power to make laws for peace, order and good government but so as not to discriminate against races or religions. That express prohibition against discrimination as far as racial or religious groups were concerned applied equally to discriminating against individuals by legislative enactment. Section 52 dealt with the functions of the judicature. The holding of office at will was abolished and the judges of the Supreme Court were given the same protection as the judges in England had enjoyed for many years. There was a special protection with regard to the minor judiciary, also to assist them in the preservation of their independence; they were placed under the Judicial Service Commission upon whose recommendation the Governor would act in dealing with matters of appointments, transfer, dismissal and disciplinary control (s. 55). Section 56 expressly made it a criminal offence to interfere with the Judicial Service Commission. This constitution was intended for an interim period until the grant of full independence.

The law, which defined the Crown's powers of legislation in regard to conquered and ceded colonies and the limits of those powers, was laid down by Lord Mansfield in Campbell v. Hall.³ The sixth proposition laid down by Lord Mansfield was important for the purpose of this case, because it laid down that when the King passed legislation by virtue of his prerogative, his legislative powers were subordinate to the powers of the Imperial Parliament of which he formed a part, and, further, that in regard to a conquered colony he could not make any new law contrary to fundamental principles. One of the questions in this case was what were those fundamental principles which limited the legislative powers of the Crown and which did not in any way limit the powers of the Imperial Parliament which, within its own sphere, was quite supreme. Accordingly, so far as the Crown and the conquered or ceded colony were concerned, no law contrary to fundamental principles could survive the conquest, and no laws contrary to fundamental principles could be enacted by the Crown in the exercise of its subordinate legislative authority. In Abeyesekera v. Jayatilake⁴ the Judicial Committee accepted Campbell v. Hall⁵ as the leading case on the question of the legislative powers of the Crown. All retrospective legislation is not bad, it is perfectly valid in certain circumstances to grant a person an indemnity even

3 (1774) 1 Cowp. 204; 98 E.R. 1045.

4 [1932] A.C. 260, 262, 263.

5 1 Cowp. 204.

retrospectively; but in the present case ex post facto legislation in regard to criminal matters was contrary to fundamental principles where it sought to make persons liable to punishment for new crimes and to higher punishment for old crimes, and to pass legislation which purported to deprive them of the protection of the earlier laws ex post facto in order that evidence which at the relevant point of time was inadmissible to prove their guilt should be made retrospectively admissible to secure their conviction in a matter which the legislature had directly in mind: Chitty's Prerogatives of the Crown; Blankard v. Galdy⁶; Fabrigas v. Mostyn⁷; Reg. v. Picton.⁸ The appellants adopted the arguments of Mr. Nolan in Reg. v. Picton⁸ in so far as he equated the limitations on the power to legislate as far as the Crown was concerned with the power to allow something fundamentally contrary to fundamental principles to continue.

In the Proclamation of 1799 the civilized parts of the principles of Roman-Dutch law were allowed to continue. Reliance was strongly placed on the well-established principles of the Roman-Dutch law as to what in truth "law" and legislation was; the first principle being that there could be no law which was not of general application or of application at least to groups of people in similar circumstances, so that a law against an individual alone, operating with special importance against an individual alone, was not law at all: Voet's Commentary on the Pandects, vol. 1, s. 5, p. 34, s. 11, p. 39; Pereira's Laws of Ceylon, p. 135.

Even if it was very difficult to find a complete and comprehensive definition of what kind of legislation would be contrary to fundamental principles, in the average case it was extremely easy to decide in accordance with the accepted notions of justice on which side of the line a particular kind of legislation fell: Ridge v. Baldwin⁹; Phillips v. Eyre¹⁰; Calder v. Bull.¹¹

The words "peace, order and good government" in section 29 had been interpreted to indicate a very conclusive discretion in regard to matters of policy; and, provided the legislative enactment was something which was not against fundamental principles, the question whether it was calculated to promote peace, order and good government was not a matter which was justiciable;

6 (1693) 2 Salk. 411; 91 E.R. 356.

7 (1773) 20 St.T. 82, 179, 180-182.

8 (1805) 30 St.T. 225, 865, 890, 903, 905, 906, 933, 934, 956; 2 East 195.

9 [1964] A.C. 40, 64; [1963] 2 W.L.R. 935; [1963] 2 All E.R. 66, H.L.(E.).

10 (1871) 6 Q.B. 1, 23; 10 B. & S. 1004.

11 (1798) 3 Dallas 386, 389; 1 Curtis 269, 272.

otherwise there would be a conflict between judges and parliament as to whether something was good for the country or not, and the whole machinery of justice was not appropriate for that consideration. It was quite a different thing to say, and quite wrong to say, that the well-known "peace, order and good government" policy was something which enlarged the power which the Crown had no right to assign at all.

Where the Imperial Parliament transfered a legislative power without words of limitation, then that passed the full plenary powers which the Imperial Parliament could bestow. The same applied to the Queen, save that, in the case of the Queen's legislative powers, she only had power to bestow the limited power which she herself possessed.

Legislation directed against selected individuals or against one individual is not law at all, but an exercise of judicial power or an interference with judicial power, which is equally invalid. The legislature had purported to direct the judges by the terms of the impugned legislation to ignore the general law applicable to the kind of cases similar to the case of the appellants, and to substitute rules as to admissibility of evidence which deprived the appellants of the protection given by the general law to other subjects: Coke's Institutes, vol. 2, p. 46; Blackstone's Commentaries, 2nd ed., vol. 1, p. 44; Schwartz's Analysis of the American Constitution, vol. 1, pp. 116, 117; Holden v. James¹²; Vanzant v. Waddel¹³; Bank of the State v. Cooper.¹⁴

The Colonial Laws Validity Act, 1865 (28 & 29 Vict. c. 63), provided that a law passed by a colonial legislature was not bad law merely because it was repugnant to the common law of England (s. 3). The Ceylon Independence Order in Council 1947 (Legislative Enactments of Ceylon, Rev. 1956, c. 377) removed the reserve power of the Crown to make any further amendments. The Ceylon Independence Act, 1947, s. 1 (3) provided that the provisions of Schedule 1 to the Act should have effect with regard to the legislative powers of Ceylon. Schedule 1 was of considerable importance. Paragraph 1 (2) provided that no law and no provision of any law made after the appointed day by the parliament of Ceylon should be void or inoperative on the ground that it was repugnant to the law of England. The law of England would include the common law of England. That merely said that any

12 (1814) 11 Mass. 396, 403, 404; 6 A.D. 174.

13 (1829) 2 Yerger's Rep. 230, 239.

14 (1831) 2 Yerger 529, 534-543; 24 A.D. 517.

Ceylon law made by virtue of the powers vested in the Ceylon parliament under the Ceylon (Constitution) Order in Council, 1946, s. 29, should not be invalidated on the ground that it was repugnant to the common law of England. That did not touch the present case because the invalidity of the impugned legislation was referable not to repugnancy as far as the common law was concerned, but because it proceeded from an exercise of power derived from the subordinate legislative power of the Crown. It was because the Crown's legislative power, which was the source of Ceylon's legislative power, was limited; the Crown had the power to confer only as much as the Crown itself possessed, but no more. If the true position was that the Crown had as unfettered a legislative power as the Imperial Parliament, then the whole of that part of the appellants' argument fell to the ground.

H. W. Jayewardene Q.C. following. The concept of making laws for peace, order and good government existed before 1946 and was given by the Ceylon State Council Order in Council, 1931, and that power was to be found in all Orders in Council from the moment the legislature was established in Ceylon in 1931. It vested in the Governor who acted with the advice and consent of the legislature.

In regard to the grant of independence to all other countries the Queen acted under the powers given to her by the Foreign Jurisdiction Act, 1890. Ceylon was unique in this respect that the Order in Council, 1946, and the Order in Council, 1947, were purely in the exercise of the Queen's prerogative. It was not enacted under the Foreign Jurisdiction Act, 1890, and therefore could not be regarded as having been derived from an Act of Parliament. The Federal Court of Pakistan had drawn the distinction between countries which had been granted their constitutions by Order in Council and made particular reference to the fact that the Crown did not have a power to permit any country to cease to be a Dominion of the Crown; that could be done only by Act of Parliament. The Crown's rights in that respect were controlled by the powers of Parliament: Jenning's Constitutional Problems in Pakistan, 3rd ed. (1954), p. 89; Wilkinson v. Leyland.¹⁵ The powers of the Crown to legislate were restricted by the terms of the surrender, and the Crown could not, by the exercise of the prerogative, pass laws which were against fundamental principles and against the terms of cession. If the Crown could not do that, then the Crown could not grant a power of legislation under

15 (1829) 2 Peter's S.C.R. 627, 656.

article 29 which gave the legislature a wider power than the Crown had.

When interpreting a written constitution one must look at the whole scheme of the legislation. The Order in Council 1946, article 29, gave the Ceylon parliament the power of legislation for the first time; it took away the legislative power that was in the Governor-General under the Order in Council, 1931, and placed it in parliament. By Article 45 the executive power continued to be vested in the Crown and was exercised through the cabinet of ministers who were responsible to parliament. There was no reference at all to the vesting of judicial power in the judicature because that had already vested in the judicature by the Charter of 1833 which set up the Supreme Court, the District Courts and the Courts of Request which were in existence today and derived their authority from the Charter.

The judicial power rested, since 1833, in the courts. Neither the Crown nor the legislature had power to tell the judicature that it should adjudicate in respect of one section of its subjects in a manner different from another section of its subjects. Judicial power implies a totality of power, and, once vested in the courts, it cannot be taken away: Le Mesurier v. Connor.¹⁶

The impugned legislation was not legislation applicable to all persons and was ad hominem and therefore ultra vires. [Reference was made to Act No. 1 of 1962 in full: Ervine's Appeal¹⁷; Lewis v. Webb.¹⁸] The pith and substance of the impugned legislation was that it only affected the appellants, and as they were entitled to even-handed justice the courts would disregard the impugned legislation as ultra vires the constitution.

Victor Tennekoon Q.C. (Solicitor General of Ceylon), R. K. Handoo and V. S. A. Pullenayegum for the Crown. The first complaint or information received by the authorities was that the most senior deputy inspector of police and other senior police officers were planning to overthrow or take over the Government, and in that situation the Prime Minister would have been completely foolish to have entrusted the investigation to the police under the normal procedure provided by the Criminal Procedure Code. That was a situation in which it was impossible to comply with the normal provisions of the criminal law. If the investigation had been handed over to the police, the very people who were

16 (1929) 42 C.L.R. 481, 510.

17 (1851) 16 Penn. S.R. 256, 263, 266, 268.

18 (1825) 3 Maine S.R .298, 306.

attempting the coup d'etat would have easily carried out their purposes The provisions of sections 11, 12, 13, 15 and 17 [LORD MACDERMOTT. We need not hear you on section 17.] while they might be ad hoc, i.e., provided for a particular incident, were not provided for particular persons; they were directed towards the trial of any person or persons who might have been found to have associated in the conspiracy to overthrow the government. The prosecution was free to find other people concerned in the conspiracy. The provisions in the impugned legislation could properly be described as ad hoc, but not ad hominem. The legislation was aimed at those who had taken part in the attempted coup of January 27. It was important to bear in mind that the judgment appealed from was brought from a court which was not constituted under the repealed sections 8, 9 and 10 of Act No. 1 of 1962, which were no longer on the statute book. If it was suggested that those were provisions of law by which the legislature sought to ensure a conviction, they had now disappeared. The law to be examined was the law under which they were tried actually.

It would be extremely dangerous if the courts were given such a wide power to strike down legislation where "fundamental principles" were incapable of definition. If one approached the Constitution in that way, one arrived at a position in which Ceylon had not parliamentary supremacy, but supremacy of the judiciary, where according to its view of fundamental principles it could strike down laws passed by parliament: Berriedale Keith's Sovereignty of the British Dominions, 1929 ed., p. 45; and Responsible Government in the Dominions. 2nd ed. (1928), vol. 1, p. 333.

Quite irrespective of whether the colonial legislation was created by an Act of the Imperial Parliament or by Order in Council, the legislative powers of a colonial legislature were set out in the Colonial Laws Validity Act, 1865. As from 1865, the only two limitations on the legislative powers of a colonial legislature were, first, any limitation in the document granting the constitution, and, secondly, by section 2 of the Colonial Laws Validity Act: Phillips v. Eyre,¹⁹ per Willes J.²⁰ That was an argument which was not based on Lord Mansfield's dictum in Campbell v. Hall²¹ of it being contrary to fundamental principles of English law, but was being applied to foreign laws which the parties sought to have applied in England, and the courts refused to apply such a law if they felt it was contrary to natural justice. But the courts

19 (1871) L.R. 6 Q.B. 1.

20 Ibid. 23.

21 (1774) 1 Cowp. 204, 209.

were not referring to the supremacy of parliament, because it was not a law of the parliament but of some other authority. The Judicial Committee is a civil court and is being asked to strike down a law of the Ceylon parliament on the ground that it is contrary to natural justice. That certainly was never done by the English courts. [Reference was made to Calder v. Bull²²; Li Hong Mi v. Attorney-General for Hong Kong²³; Abeyesekera v. Jayatilake.²⁴]

The provisions of the Statute of Westminster, 1931, ss. 2 and 3 were almost verbatim those of the Schedule to the Ceylon Independence Act, 1947. There was no difference between the present case and British Coal Corporation v. The King²⁵ for the reason that the Colonial Laws Validity Act equated colonial legislation, whether created by Act of Parliament or by the Crown, in the exercise of its prerogative. The Colonial Laws Validity Act was an Act of Parliament, and it was that which said that, if there was a defect in the exercise of the prerogative, the statute was intended to fill up the gap. Section 3 said that no such law should be void or invalid if it was repugnant to English law; it was a very positive statement that hereafter you could never declare a colonial law invalid on the ground that it was repugnant to the law of England. Wheare's Statute of Westminster and Dominion Status, 5th ed. (1953), p. 75, said that the law officers were unable to lay down any rule to fix the dividing line between fundamental and non-fundamental rules of English law. It was for that very reason that in the recital of the Colonial Laws Validity Act it was set out that the matter was in such great doubt as to what these principles were that it was necessary for the Imperial Parliament to step in itself and to fill in anything lacking in the powers of the colonial legislatures.

By the Ceylon (Constitution and Independence) order in Council, 1946, the Ceylon (Constitution and Independence) Order in Council, 1947, and the Ceylon Independence Act, 1947, where it was suggested that any law passed by the Ceylon parliament was void or inoperative, it could only be contested on the grounds that it conflicted with section 29 (2) or that it did not follow the manner and form set out in section 29 (4). The effect of the Independence Order in Council and the Independence Act of 1947 was to create a parliament with as wide powers of legislation in its proper field as the British parliament had in any field. The

22 (1798) 3 Dallas 386.

23 [1920] A.C. 735, 737.

24 [1932] A.C. 260, 262, 264.

25 [1935] A.C. 500, 516, 517; 51 T.L.R. 508, P.C.

main purpose of the Independence Act, 1947, was to ensure that the new parliament to be set up in Ceylon was not to be in any sense a subordinate legislature but was to have the full legislative powers of a sovereign independent state: Ibralebbe v. The Queen.²⁶ It is too late to say that Ceylon is to be regarded as having only a colonial legislature. The words "peace, order and good government" in section 29 connoted the widest law-making powers appropriate to a sovereign legislature. But those words did not stand alone, the whole phrase was "Parliament shall have power to make laws for the peace, order and good government of the Island." It was in the context of a grant of legislative power that it had been said in all the cases that it was the grant of legislative power of the greatest amplitude, and it was now too late in the day to take those words separately and to find out their dictionary meaning or their Roman-Dutch meaning. [Reference was made to Voet's Commentaries on the Pandects, Book 1, Tit. 3, ss. 2 and 5; Salmond's Jurisprudence, 11th ed. (1957), p. 38.]

The word "laws" in section 29 certainly included laws which dealt with particular cases, particular individuals, particular geographical areas, particular classes of people. Indeed the statute books were full of particular pieces of legislation which did not apply generally: e.g., Niall MacPherson Indemnity Act, 1954; Mr. Speaker Morrison's Retirement Act, 1959; the War Damage Act, 1965, which interfered with cases pending in court and directed the courts to dismiss claims for war damage compensation, than which nothing could be more particular.

[LORD GUEST. Do you say that in a criminal case a law could say to the judges that they must find the accused guilty? Do you say that that could be incorporated in a law?]

However shocking it might be, the answer was yes. The concept of sovereignty was so wide. In fact it was called an awful power and no doubt it must be exercised with responsibility. In this case, looking at the proceedings and the judgment, the appellants had had one of the fairest trials that any democracy could give to any people.

The appellants submitted an inference was to be drawn from section 29 (2). [LORD MCDERMOTT. We need not trouble you about the argument on section 29 (2).]

Lastly, the legislation was attacked on the basis of a separation of powers in the Ceylon constitution; that parliament could not exercise the judicial power of the state, and that this legislation was

26 [1964] A.C. 900; [1964] 2 W.L.R. 76; [1964] 1 All E.R. 251, P.C.

in reality an exercise of such judicial power. The Ceylon constitution was not even remotely supposed to be based on the American constitution. It was clearly stated by Lord Soulbury that the object was to create in Ceylon a constitution similar to the British constitution. In this constitution the formula of separation was not used, there were no words which said that the legislative power was vested in Parliament, the executive power was vested in the Crown, and the judicial power was vested in the Supreme Court. Indeed the only time the word "vested" was used was when it came to deal with the executive power by section 45. The legislative power was given by section 29. There was no reference to the judicial power at all. Part VI, section 52, dealt with the appointment of the Chief Justice and puisne judges of the Supreme Court. Part VI, section 55, dealt with the Judicial Service Commission.

[LORD MCDERMOTT. The point made against you was not so much that there was any analogy to be drawn from the United States constitution, but that here, on the true construction of the Ceylon Constitution, one should imply that the judicial functions were intended to be vested in the judiciary. The substance of the reasoning in the first decision of the Supreme Court²⁷ was that that was so, and that the nomination of the judges was ultra vires because the executive was purporting to usurp its judicial function.]

That decision²⁷ proceeded upon the statement that the Attorney-General accepted that there was vesting of the judicial power of the state in the judicature, but that was a misunderstanding of what the Attorney-General said, because in other parts of the judgment it is perfectly plain that the Attorney-General did not concede that. By judicial power was meant of course that it was recognized that in every civilised state the state must provide the institutions for the final decision of disputes between subject and subject, and subject and the state. It was vested in those institutions mentioned in Part VI. That submission would not stand one moment's examination for the reason that, if the whole of the judicial power was vested in those institutions alone, the appeal was not competent, because on that argument the board was exercising the judicial power on behalf of the state of Ceylon.

[LORD GUEST. Is not the power of this Board that in respect of Her Majesty's prerogative at present?]

The theory of separation excluded even that kind of extension because the appellants' contention was the Crown in section 45

27 [1965] 64 N.L.R. 313.

was given only executive power, no other power could be exercised by the Crown, no other function could be exercised and no law passed by parliament could give it to the Crown.

At the time when the Constitution came into operation judicial powers were being exercised by other persons and bodies. In certain areas divorce could be granted by the government officer of the district though he was not a member of the judicature. Other public bodies were exercising what were clearly admitted to be judicial functions. There were Boards who heard income tax appeals which nobody would argue were part of the judicature. They were settling matters appropriate to courts, but nevertheless the Constitution did not deal with them. In fact in one section of the Constitution it said that all such laws should continue to operate. Under the strict application of the theory of separation of powers no body or no person other than those designated in the Constitution could decide a case, whether original or an appeal. It meant then that there was no right of appeal to the Board because the judicial power must be monopolistically exercised by those persons in whom it was vested, in the same way that the legislative power could be exercised by nobody except parliament, just as it was said that the executive power can only be exercised by the Governor-General. Reliance was placed on the passage in Viscount Radcliffe's judgment in Ibralebbe v. The Queen²⁸ dealing with the words "peace, order and good government."

Under section 29 (1) the legislative power was as wide as it could be. Section 29 (2) brought in a limitation. Section 29 (4) said that parliament could amend even this Order in Council but must follow a particular manner and form. Thus any law passed by the parliament of Ceylon could be struck down for only two reasons; first, that it was made in contravention of section 29 (2), or secondly, that it purported to amend the Order in Council and therefore must have been passed by a two-thirds majority as required by section 29 (4).

[Lord Guest. You must say then that the Supreme Court was wrong in holding that the previous law was invalid, and that parliament could do what the Supreme Court said they could not do.]

Yes.

[LORD PEARSON. What is the position if there is an amendment of any of the provisions of this Order? Suppose that in addition to express provisions, there were held to be some implied provisions in this Order in Council.]

28 [1964] A.C. 900, 923.

That was decided in Bribery Commissioner v. Ranasinghe,²⁹ where unwittingly parliament had said, in a law passed by a simple majority, that members of bribery tribunals would be appointed by the Governor-General. It conflicted with section 55 which said that judicial officers should be appointed by the Judicial Service Commission. There was a conflict of laws.

[LORD PEARCE. If you are right in saying that there can be interference with the process of the judiciary, although the appointment of the judiciary is protected, there is really no limitation to the lengths to which interference with the judiciary can go. Could you direct all the judges to find all their prisoners guilty by Act of Parliament, or not to find any contravention of the statute void?]

It was necessary to look at the chapter dealing with the judiciary, Part VI, ss. 52, 53, 55. There were no express provisions in this Order in Council which had been contravened by the impugned legislation. The Constitution did not seek to invest the judical power of the state in a set of institutions. The expression "judicial powers" was not used anywhere in the constitution document. Even if the impugned legislation was regarded as impinging on the exercise of the judicial functions of the Supreme Court, what did it do? It certainly altered the rules of evidence. That all parliaments did. That did not interfere with the provisions which said that judges should be appointed by the government. It did not interfere with their independence. Judges had to administer justice according to the law. There was nothing in the Constitution from which it could be inferred that the legislature was prohibited from interfering with the judge's judicial functions and judicial powers. It would be travelling very far from the mere power to appoint judges to infer that you could not alter rules of evidence and the constitution of the courts. The amplitude of legislative power was sufficient to give power to parliament to pass the legislation which was impugned.

V.S.A. Pullenayegum followed.

E. F. N. Gratiaen Q.C. in reply. The pith and substance of Act No. 1 of 1962 was that there was a legislative plan designed ex post facto to facilitate, if not ensure, the conviction and enhanced punishment of the appellants, and for that purpose parliament purported ex post facto to create new laws or at least to create aggravated crimes by making them greater than they

29 [1965] A.C. 172; [1964] 2 W.L.R. 1301; [1964] 2 All E.R. 785, P.C.

were. The laws purported to change ex post facto the punishment to be inflicted under the general law. The legislature had altered in fundamental matters the general rules of evidence which would facilitate the proof of guilt. Parliament had legalised conditions of detention of the appellants while they were awaiting their trial, which were illegal under the general law and which were criticised by the trial judges as disgraceful. This being a criminal case, the appellants complained of the deviation from all the general rules of the general law which were established to ensure a fair trial and to guarantee and give special protection in regard to matters of admissibility of evidence which had been and were on the statute book for over a century. Having regard to the conditions which obtained in Ceylon, the importance of that protection was that the parliament that passed this very enactment themselves recognised the value and importance of those general laws, because those general laws which remained in force for all other offences during the relevant period had been restored in toto and were intended to be restored in toto at the end of this prosecution.

From the days of the Charter in 1833 the separation of judicial functions of the courts from the executive and legislative functions was emphasised as of great importance to the country and to good government. Certainly there was no express provision in the Constitution taking away that fundamental separation which was considered so important in 1833. Where there is an express separation of two parts of the government, and by necessary implication recognition of the separation of the third important compartment of government, then that necessarily gives a limited meaning to the legislative power conferred by section 29. Parliament can make general laws regarding evidence, courts, and so on; and the judges administer those laws. Only criminal laws were in issue here. Having regard to the judicial oath which every judge takes and to the protection which he recognises as essential under the constitution, his duty in exercising his judicial function is to dispense even handed justice to all men according to the laws of the country. From that it follows that in the exercise of what is merely a legislative power parliament cannot under the guise of what is called legislation either usurp the judicial function of the judges or interfere with them. That is the fundamental distinction which flows from the constitutional position which arises when there is expressly or by necessary implication a complete separation of judicial functions. That submission is basic to the appellants' argument.

1965. December 2. LORD PEARCE announced that their Lordships would humbly advise Her Majesty that the appeals should be allowed and that the convictions should be quashed.

1965. December 21. The reasons of their Lordships for allowing the appeal were delivered by LORD PEARCE.

This is an appeal against the judgment and sentence of the Supreme Court of Ceylon. The eleven appellants were each convicted of three offences in respect of an abortive coup d'etat on January 27, 1962. The offences were, first, that they conspired to wage war against the Queen, secondly, that they conspired to overawe by means of criminal force or the show of criminal force the Government of Ceylon and, thirdly, that they conspired to overthrow otherwise than by lawful means the Government of Ceylon by law established. Thirteen other defendants who were tried with the appellants were acquitted. Each of the appellants was sentenced to ten years' rigorous imprisonment and forfeiture of all his property.

The appellants were not tried by a judge and jury in accordance with the normal criminal procedure, but by three judges of the Supreme Court sitting without a jury. The trial was very long and complicated since so many defendants were involved, playing, as was alleged, different parts in the attempted coup. Indeed, the judgment of the court occupies more than 200 pages of the law reports (Reg. v. Liyanage¹. The individual appeals raise many points which demand a very extensive consideration of evidence and factual detail.

All the appeals however share a common submission that, whatever be the details of fact or evidence, these convictions must be quashed owing to the invalidity of certain legislation in 1962 passed especially in order to deal with the trial of those persons who partook in the abortive coup. This legislation affected the mode of trial, the offences, the admissibility of evidence and the sentences. It was rightly agreed between the parties that, if this legislation was invalid, the convictions cannot be sustained. Their Lordships therefore decided that before embarking on a detailed investigation of the facts and evidence they should first decide, as a preliminary point, whether the legislation in question was invalid.

The detailed story of the coup d'etat of January 27, 1962, and how it was foiled at the very last moment, is set out in a

1 (1965) 67 N.L.R. 193.

White Paper of the Ceylon Government issued on February 13, 1962. This sets out the names of thirty alleged conspirators and the parts played by them. All the accused were named in it. It alleges that the coup was planned by certain police and army officers with the object of overthrowing the Government and arresting, inter alios, the Parliamentary Secretary for Defence and External Affairs since he could give orders to the Service Commanders which might frustrate the coup. The White Paper stated what the participants intended to do and gave descriptions of their interrogation by Ministers immediately after their arrest. It concluded with the observation:

"It is also essential that a deterrent punishment of a severe character must be imposed on all those who are guilty of this attempt to inflict violence and bloodshed on innocent people throughout the country for the pursuit of reactionary aims and objectives. The investigation must proceed to its logical end and the people of this country may rest assured that the Government will do its duty by them."

From about January 27 all the accused were in custody (except one who gave himself up on July 31, 1962), and they remained thereafter in very rigorous custody. (See Reg. v. Liyanage². They were questioned both on the night of January 27, 1962, and thereafter while in custody.

On March 16, 1962, there was passed the Criminal Law (Special Provisions) Act, No. 1 of 1962 ("the first Act"). That it was directed towards the participants in the coup is clear. It was given retrospective force and section 19 read:

"The provisions of this Act, other than the provisions of section 17, shall be deemed, for all purposes, to have come into operation on January 1, 1962:

Provided, however, that the provisions of Part I of this Act shall be limited in its application to any offence against the State alleged to have been committed on or about January 27, 1962, or any matter, act, or thing connected therewith or incidental thereto."

Part I was directed towards legalising the detention of the persons who had been imprisoned in respect of the attempted coup. Under the general criminal law an arrested person has the following protective provisions. Under the Criminal Procedure Code he must without unreasonable delay be taken or sent before a magistrate (s. 36). If he is arrested without a warrant, the reasonable period shall not exceed 24 hours (s. 37). The police

2 67 N.L.R. 193, 259.

must report the arrest to the magistrate's court (s. 38). Part I of the first Act legalised ex post facto the detention for 60 days of any person suspected of having committed offences against the State, but the fact of his having been arrested had to be notified to the magistrate's court.

In Part II of the first Act section 4 altered the mode of trial for the offences in question in the following manner. Under section 440A of the Criminal Procedure Code the Minister of Justice could direct that the defendant be tried by three judges without a jury in the case of the offence of sedition and any other offence in which such a mode of trial would be appropriate by reason of civil commotion, disturbance of public feeling or any other similar cause. That clause was amended so as to apply expressly not only to sedition but to any other offence under Part VI of the Penal Code, the part which dealt with offences against the State, the offences with which the appellants were charged. Thus the Minister could direct that the appellants should be tried by three judges without a jury. With this section one may conveniently read section 9 of the first Act, whereby in cases in which the Minister directs a trial by three judges without a jury, the three judges should be nominated by the Minister of Justice, and section 17 which provided for the addition of two more judges to the Supreme Court, such provision to come into operation on such date as the Minister might appoint.

Section 5 retrospectively allowed arrest without a warrant for the offence of waging war against the Queen whereas previously a warrant had been necessary.

Section 6 altered the penalty for an offence under section 114 of the Penal Code, namely for waging war against the Queen, by inserting a minimum punishment of not less than ten years' imprisonment. It altered the penalty for an offence under section 115 of the Penal Code, namely for conspiring to wage war against the Queen and overawe the Government by criminal force, by inserting a minimum punishment of ten years' imprisonment and a forfeiture of all property. It also altered the offence itself. Section 115 had read previously as follows:

"Whoever conspires to commit any of the offences punishable by the next preceding section, or to deprive the Queen of the sovereignty of Ceylon or of any part thereof, or of any of Her Majesty's Realms and Territories, or conspires to overawe, by means of criminal force or the show of criminal force, the Government of Ceylon, shall be punished with imprisonment of either description which may extend to twenty years, and shall also be liable to fine."

This was amended as follows:

"By the substitution, for all the words from 'Ceylon, shall' to 'to fine,' of the following:

"Ceylon, or conspires to overthrow, or attempts or prepares to overthrow, or does any act, or conspires to do, or attempts or prepares to do any act, calculated to overthrow, or with the object or intention of overthrowing, or as a means of overthrowing, otherwise than by lawful means, the Government of Ceylon by law established, or conspires to murder, or attempts to murder, or wrongfully confines, or conspires or attempts or prepares to wrongfully confine, the Governor-General or the Prime Minister or any other member of the Cabinet of Ministers, with the intention of inducing or compelling him to exercise or refrain from exercising in any manner any of the lawful powers of such Governor-General, Prime Minister or Cabinet Minister, shall be punished with death, or imprisonment of either description which shall extend to at least ten years but shall not extend to more than twenty years, and shall forfeit all his property."

Thus a new offence was added ex post facto to meet the circumstances of the abortive coup.

Section 11 of the first Act provided that the Attorney-General might before or at any stage during the trial pardon any accomplice with a view to obtaining his evidence.

Section 12 altered the laws of evidence in the case of offences against the State. The general criminal law gave the following protections to an accused person.

It provided "No confession made to a police officer shall be proved as against a person accused of any offence" (Evidence Code, s. 25 (1)). It further provided that no confession made by an accused in the custody of a police officer could be proved against him, unless made in the immediate presence of a magistrate (Evidence Code, s. 26 (1)). And it forbade that a confession by one of several co-defendants should be used against the other (Evidence Code, s. 30). It excluded from admission all statements to a police officer in the course of an investigation (Criminal Procedure Code, s. 122 (3)). Further, the onus of proving a confession to be voluntary was on the prosecution.

The first Act swept these protections away. It allowed statements made in the custody of a police officer to be admitted, provided that police officer was not below the rank of Assistant Superintendent (s. 12 (1)). It laid on the accused the burden of proving that a statement made by him was not voluntary (s. 12

(3)). It removed the effect of sections 25, 26 and 30 of the Evidence Ordinance above referred to (s. 12 (4)).

Section 12 (2) provided:

"In the case of an offence against the State, a statement made by any person which may be proved under subsection (1) of this section" (i.e., whether or not in the custody of a police officer) "as against himself may be proved as against any other person jointly charged with such person if, but only if, such statement is corroborated in material particulars by evidence other than a statement proved under that subsection."

Thus a vital and age old protective rule of evidence was removed.

Section 12 (5) removed the protection of section 122 (3) of the Criminal Procedure Code which prohibited the admission of statements made to a police officer in the course of an inquiry. Section 15 removed the right of appeal to the Court of Criminal Appeal in the case of trials before three judges without a jury.

Finally section 21 provided as follows:

"The preceding provisions of this Act, save and except Part I and section 17, shall cease to be operative after the conclusion of all legal proceedings connected with or incidental to any offence against the State committed on or about 27th January, 1962, or from one year after the date of commencement of this Act, whichever is later, provided that the Senate and the House of Representatives may, by resolution setting out the grounds therefor, extend the operation of this Act from time to time for further periods not exceeding one year at a time."

In the circumstances the reference to one year after the commencement of the Act cannot be read as indicating any intention that the provisions in question should continue in force beyond the conclusion of the proceedings mentioned. Thus, apart from the increase in the number of judges by section 17 (which obviously could not be temporary), and apart from Part I (which gives the right to arrest and detain persons suspected of having committed an offence against the State and which in itself is limited to any offence against the State alleged to have been committed on or about January 27, 1962, and matters incidental thereto), the whole of these elaborate provisions for altering the nature of the offence, for providing a trial without a jury, and for allowing the admission of otherwise inadmissible statements and confessions is to end when the proceedings based on the coup come to an end. By that time it would have served its purpose

which would appear to be the fulfilment of the promise implied in the last two sentences of the White Paper, quoted above.

The Minister of Justice then nominated three judges to try the accused. Preliminary objection was taken that the nomination and the section under which it was made were ultra vires the Constitution. In October, 1962, the three learned judges of the Supreme Court in a full and careful judgment in which they examined the relevant authorities unanimously upheld the objection (Reg. v. Liyanage³. They concluded⁴:

"For reasons which we have endeavoured to indicate above, we are of opinion that because

section 9 of the Criminal Law (Special Provisions) Act, No. 1 of 1962, is ultra vires the Constitution."

This conclusion was not challenged by an appeal to this board. But in November, 1962, there was passed the Criminal Law Act, No. 31 of 1962 (for convenience referred to as the "second Act"). This repealed those provisions of the first Act which dealt with section 440A of the Criminal Procedure Code, and amended that section anew by providing as respects offences under certain sections of the Penal Code, including section 115, for a trial before three judges without a jury; but instead of the nomination by the Minister which had been rejected by the Supreme Court, there was inserted a new subsection whereby the Chief Justice could nominate three judges before whom the trial should be held. It was also provided that the determination should be according to the majority. Further the second Act (s. 6) nullified the Minister's earlier direction, information and nomination in the proceedings (setting them out in schedules), and it deemed that the Minister had never had any power to nominate the judges for the trial without a jury, and any action proceeding or thing instituted by virtue of the said direction, information or nomination was deemed for all purposes never to have been instituted or commenced.

3 (1963) 64 N.L.R. 313.

4 Ibid. at 359.

All the other elaborate provisions of the first Act were left untouched.

The trial proceeded before three judges nominated by the Chief Justice. In April, 1965, after a very extensive trial the appellants were convicted and sentenced.

Mr. Gratiaen on behalf of the appellants attacks the validity of the convictions on three main grounds.

The first is that the Ceylon Parliament is limited by an inability to pass legislation which is contrary to fundamental principles of justice. The 1962 Acts, it is said, are contrary to such principles in that they not only are directed against individuals but also ex post facto create crimes and punishments, and destroy fair safeguards by which those individuals would otherwise be protected.

The appellants' second contention is that the 1962 Acts offended against the Constitution in that they amounted to a direction to convict the appellants or to a legislative plan to secure the conviction and severe punishment of the appellants and thus constituted an unjustifiable assumption of judicial power by the legislature, or an interference with judicial power, which is outside the legislature's competence and is inconsistent with the severance of power between legislature, executive, and judiciary which the Constitution ordains.

The appellants' third argument is that the language of the 1962 Acts did not suffice "in the absence of an express provision to that effect" (Interpretation Ordinance, s. 6 (3)) to deprive the appellants of the right to a jury which they had acquired previous to the passing of those Acts.

The first argument starts with a judgment of Lord Mansfield L.C.J. In Campbell v. Hall⁵ he laid down as a clear proposition that

"if the King (and when I say the King, I always mean the King without the concurrence of Parliament,) has a power to alter the old and to introduce new laws in a conquered country, this legislation being subordinate, that is, subordinate to his own authority in Parliament, he cannot make any new change contrary to fundamental principles."

The Crown having, therefore (it is said), no power over Ceylon as a colony to make laws which offended against fundamental principles, could not hand over to Ceylon a higher power than it possessed itself. The Constitution of Ceylon was not laid down

5 (1774) 1 Cowp. 204, 209.

as in the case of many other colonies by an Act of Parliament but by an Order in Council (The Ceylon (Constitution) Order in Council, 1946) which gave power to the Ceylon Parliament to make laws for the peace, order and good government of the island. This was followed by the Ceylon Independence Act, 1947, a United Kingdom Act. But Parliament, it is contended, did not in terms transfer to Ceylon the Sovereign right of the United Kingdom Parliament. Therefore the legislative power of Ceylon is still limited by the inability (which it inherits from the Crown) to pass laws which offend against fundamental principles. This vague and uncertain phrase might arguably be called in aid against some of the statutes passed by any Sovereign power. And it would be regrettable if the procedure adopted in giving independence to Ceylon has produced the situation for which the appellants contend.

In view of their Lordships, however, such a contention is not maintainable. Before the passing of the Colonial Laws Validity Act, 1865, considerable difficulties had been caused by the over-insistence of a Colonial judge in South Australia that colonial legislative Acts must not be repugnant to English law ("The Statute of Westminster and Dominion Status" by K.C. Wheare⁶. That Act was intended to and did overcome the difficulties. It provided that colonial laws should be void to the extent in which they were repugnant to an Act of the United Kingdom parliament applicable to that colony, "but not otherwise" (s. 2) and that they should not be void or inoperative on the ground of repugnancy to the law of England (s. 3).

"The essential feature of this measure is that it abolished once and for all the vague doctrine of repugnancy to the principles of English law as a source of invalidity of any colonial Act. ... The boon thus secured was enormous; it was now necessary only for the colonial legislator to ascertain that there was no Imperial Act applicable and his field of action and choice of means became unfettered." ("The Sovereignty of the British Dominions" by Prof. Keith.⁷

Their Lordships cannot accept the view that the legislature while removing the fetter of repugnancy to English law, left in existence a fetter of repugnancy to some vague unspecified law of natural justice. The terms of the Colonial Laws Validity Act and especially the words "but not otherwise" in section 2 make it clear that Parliament was intending to deal with the whole

6 4th Ed. 75, 76, 77.

7 1929 Ed. 45.

question of repugnancy. Moreover their Lordships doubt whether Lord Mansfield was intending to say that what was not repugnant to English law might yet be repugnant to fundamental principles or to set up the latter as a different test from the former Whatever may have been the possible arguments in this matter prior to the passing of the Colonial Laws Validity Act, they are not maintainable at the present date. No case has been cited in which during the last 100 years any judgment (or, so far as one can see, any argument) has been founded on that portion of Lord Mansfield's judgment. And in Abeyesekera v. Jayatilake,⁸ a case from Ceylon dealing with the validity of a retrospective Order in Council and therefore a fertile field for the germination of arguments about fundamental principles, Lord Mansfield's judgment in Campbell v. Hall⁹ was only referred to in the Board's judgment as authority on a wholly different point.

The Ceylon Independence Act, 1947, of the British Parliament provided:

"1. - (1) No Act of the Parliament of the United Kingdom passed on or after the appointed day shall extend, or be deemed to extend, to Ceylon as part of the law of Ceylon, unless it is expressly declared in that Act that Ceylon has requested and consented to the enactment thereof.

(2) As from the appointed day His Majesty's Government in the United Kingdom shall have no responsibility for the government of Ceylon.

(3) As from the appointed day the provisions of the First Schedule to this Act shall have effect with respect to the legislative powers of Ceylon."

"First Schedule

Legislative Powers of Ceylon

1. (1) The Colonial Laws Validity Act, 1865, shall not apply to any law made after the appointed day by the Parliament of Ceylon.

(2) No law and no provision of any law made after the appointed day by the Parliament of Ceylon shall be void or inoperative on the ground that it is repugnant to the law of England, or to the provisions of any existing or future Act of Parliament of the United Kingdom, or to any order, rule or regulation made under any such Act, and the powers of the Parliament of Ceylon shall include the power to repeal or amend any such Act, order, rule or regulation in so far as the same is part of the law of Ceylon.

8 [1932] A.C. 260; 48 T.L.R. 71, P.C.

9 (1774) 1 Cowp. 204.

2. The Parliament of Ceylon shall have full power to make laws having extra-territorial operation."

These liberating provisions thus incorporated and enlarged the enabling terms of the Act of 1865, and it is clear that the joint effect of the Order in Council of 1946 and the Act of 1947 was intended to and did have the result of giving to the Ceylon Parliament the full legislative powers of a sovereign independent State. (See Ibralebbe v. The Queen.¹⁰

Accordingly the appellants' first argument fails.

Those powers, however, as in the case of all countries with written constitutions, must be exercised in accordance with the terms of the constitution from which the power derives. The appellants' second argument maintains that the powers of Parliament were not so exercised in the passing of the Acts which are here in question.

The learned Solicitor-General in his clear, fair and forceful argument strongly relied on the fact that there is no express vesting of judicial power in the courts, such as one finds for example in the case of the United States of America or Australia But that is not necessarily decisive. For in the two latter instances there were no federal courts apart from the Constitution. Unless such courts were created and invested with power by the Constitution they had no existence or power.

In Ceylon, however, the position was different. The change of sovereignty did not in itself produce any apparent change in the constituents or the functioning of the Judicature. So far as the courts were concerned their work continued unaffected by the new Constitution, and the Ordinances under which they functioned remained in force. The judicial system had been established in Ceylon by the Charter of Justice in 1833. Clause 4 of the Charter read:

"And to provide for the administration of justice hereafter in Our said Island Our will and pleasure is, and We do hereby direct that the entire administration of justice, civil and criminal therein, shall be vested exclusively in the courts erected and constituted by this Our Charter ... And it is Our pleasure and We hereby declare, that it is not, and shall not be competent to the Governor of Our said Island by any Law or Ordinance to be by him made, with the advice of the Legislative Council thereof or otherwise howsoever, to constitute or establish any court for the administration of justice in any case civil or criminal, save as hereinafter is expressly saved and provided."

10 [1964] A.C. 900; [1964] 2 W.L.R. 76; [1964] 1 All E.R. 251, P.C.

Clause 5 established the Supreme Court and clause 6 a Chief Justice and two puisne judges. Clause 7 gave the Governor powers of appointing their successors. There follow many clauses with regard to administrative, procedural and jurisdictional matters. Some half a century later Ordinances (in particular the Courts Ordinance) continued the jurisdiction and procedure of the courts. Thereunder the courts have functioned continuously up to the present day.

There was no compelling need therefore to make any specific reference to the judicial power of the courts when the legislative and executive powers changed hands.

"But the importance of securing the independence of judges and maintaining the dividing line between the judiciary and the executive" (and also, one should add, the legislature) "was appreciated by those who framed the Constitution" (Bribery Commissioner v. Ranasinghe¹¹.

The Constitution is significantly divided into parts:

"Part 2 The Governor-General," "Part 3 The Legislature," "Part 4 Delimitation of Electoral Districts," "Part 5 The Executive," "Part 6 The Judicature," "Part 7 The Public Service," "Part 8 Finance."

And although no express mention is made of vesting in the judicature the judicial power which it already had and was wielding in its daily process under the Courts Ordinance, there is provision under Part 6 for the appointment of judges by a Judicial Service Commission which shall not contain a member of either House but shall be composed of the Chief Justice and a judge and another person who is or shall have been a judge. Any attempt to influence any decision of the Commission is made a criminal offence. There is also provision that judges shall not be removable except by the Governor-General on an address of both Houses.

These provisions manifest an intention to secure in the judiciary a freedom from political, legislative and executive control. They are wholly appropriate in a Constitution which intends that judicial power shall be vested only in the judicature. They would be inappropriate in a Constitution by which it was intended that judicial power should be shared by the executive or the legislature. The Constitution's silence as to the vesting of judicial power is consistent with its remaining, where it had lain for more than a century, in the hands of the judicature. It is not consistent

11 [1965] A.C. 172, 190; [1964] 2 W.L.R. 1301; [1964] 2 All E.R. 785, P.C.

with any intention that henceforth it should pass to or be shared by, the executive or the legislature.

During the argument analogies were naturally sought to be drawn from the British Constitution. But any analogy must be very indirect, and provides no helpful guidance. The British Constitution is unwritten whereas in the case of Ceylon their Lordships have to interpret a written document from which alone the legislature derives its legislative power.

The difficult question as to the separation of powers was carefully argued before the learned judges on the hearing of the interlocutory application which successfully challenged the Minister's nomination of three judges to try the accused. (Reg. v. Liyanage.¹² The learned Attorney-General there contended that¹³

"no separation of powers exists under our Constitution, and that, if a separation of powers exists dehors the written constitution, it is a separation after the British method because we have been accustomed to that kind of separation throughout the British occupation of this country."

But he conceded that there was a recognised separation of functions. As the court itself said¹⁴:

"That a division of the three main functions of Government is recognised in our Constitution was indeed conceded by the learned Attorney-General himself. For the purposes of the present case it is sufficient to say that he did not contest that judicial power in the sense of the judicial power of the State is vested in the Judicature, i.e. the established civil courts of this country. There is no dispute that the three of us, as constituting, for the purposes of this Trial at Bar, the Supreme Court are called upon to exercise the strict judicial power of the State, and, in fact, we have, all three of us received at one time or another, but in each case before the Supreme Court was so called upon to exercise judicial power appointment by the Governor-General acting under section 52 (1) of the 1946 order in Council."

After a careful review of authorities the three learned judges came to the conclusions quoted previously and decided that the Minister's nomination of judges was an infringement of the judicial power of the State which cannot be reposed in anyone outside the judicature.

The learned Solicitor-General before the Board has contended that the decision was wrong and that there was no separation

12 (1963) 64 N.L.R. 313.

13 Ibid. 348.

14 Ibid. 350.

of powers such as would justify it. But in their Lordships' view that decision was correct and there exists a separate power in the judicature which under the Constitution as it stands cannot be usurped or infringed by the executive or the legislature.

Section 29 (1) of the Constitution says: "Subject to the provisions of this Order Parliament shall have power to make laws for the peace order and good government of the Island." These words have habitually been construed in their fullest scope. Section 29 (4) provides that Parliament may amend the Constitution on a two-thirds majority with a certificate of the Speaker. Their Lordships however cannot read the words of section 29 (1) as entitling Parliament to pass legislation which usurps the judicial power of the judicature - e.g., by passing an Act of attainder against some person or instructing a judge to bring in a verdict of guilty against someone who is being tried - if in law such usurpation would otherwise be contrary to the Constitution. There was speculation during the argument as to what the position would be if Parliament sought to procure such a result by first amending the Constitution by a two-thirds majority. But such a situation does not arise here. In so far as any Act passed without recourse to section 29 (4) of the Constitution purports to usurp or infringe the judicial power it is ultra vires.

But do the Acts of 1962, otherwise than in respect of the Minister's nomination, usurp or infringe that power? It goes without saying that the legislature may legislate, for the generality of its subjects, by the creation of crimes and penalties or by enacting rules relating to evidence. But the Acts of 1962 had no such general intention. They were clearly aimed at particular known individuals who had been named in a White Paper and were in prison awaiting their fate. The fact that the learned judges declined to convict some of the prisoners is not to the point. That the alterations in the law were not intended for the generality of the citizens or designed as any improvement of the general law is shown by the fact that the effect of those alterations was to be limited to the participants in the January coup and that, after these had been dealt with by the judges, the law should revert to its normal state.

But such a lack of generality in criminal legislation need not, of itself, involve the judicial function, and their Lordships are not prepared to hold that every enactment in this field which can be described as ad hominem and ex post facto must inevitably usurp or infringe the judicial power. Nor do they find it necessary to attempt the almost impossible task of tracing where the line

is to be drawn between what will and what will not constitute such an interference. Each case must be decided in the light of its own facts and circumstances, including the true purpose of the legislation, the situation to which it was directed, the existence (where several enactments are impugned) of a common design, and the extent to which the legislation affects, by way of direction or restriction, the discretion or judgment of the judiciary in specific proceedings. It is therefore necessary to consider more closely the nature of the legislation challenged in this appeal.

Mr. Gratiaen succinctly summarises his attack on the Acts in question as follows. The first Act was wholly bad in that it was a special direction to the judiciary as to the trial of particular prisoners who were identifiable (in view of the White Paper) and charged with particular offences on a particular occasion. The pith and substance of both Acts was a legislative plan ex post facto to secure the conviction and enhance the punishment of those particular individuals. It legalised their imprisonment while they were awaiting trial. It made admissible their statements inadmissibly obtained during that period. It altered the fundamental law of evidence so as to facilitate their conviction. And finally it altered ex post facto the punishment to be imposed on them.

In their Lordships' view that cogent summary fairly describes the effect of the Acts. As has been indicated already, legislation ad hominem which is thus directed to the course of particular proceedings may not always amount to an interference with the functions of the judiciary. But in the present case their Lordships have no doubt that there was such interference; that it was not only the likely but the intended effect of the impugned enactments; and that it is fatal to their validity. The true nature and purpose of these enactments are revealed by their conjoint impact on the specific proceedings in respect of which they were designed, and they take their colour, in particular, from the alterations they purported to make as to their ultimate objective, the punishment of those convicted. These alterations constituted a grave and deliberate incursion into the judicial sphere. Quite bluntly, their aim was to ensure that the judges in dealing with these particular persons on these particular charges were deprived of their normal discretion as respects appropriate sentences. They were compelled to sentence each offender on conviction to not less than ten years' imprisonment, and compelled to order confiscation

of his possessions, even though his part in the conspiracy might have been trivial.

The trial court concluded its long and careful judgment with these words¹⁵:

"But we must draw attention to the fact that the Act of 1962 radically altered ex post facto the punishment to which the defendants are rendered liable. The Act removed the discretion of the court as to the period of the sentence to be imposed, and compels the court to impose a term of 10 years' imprisonment, although we would have wished to differentiate in the matter of sentence between those who organised the conspiracy and those who were induced to join it. It also imposes a compulsory forfeiture of property. These amendments were not merely retroactive: they were also ad hoc, applicable only to the conspiracy which was the subject of the charges we have tried. We are unable to understand this discrimination. To the courts, which must be free of political bias, treasonable offences are equally heinous, whatever be the complexion of the Government in power or whoever be the offenders."

Their Lordships sympathise with that protest and wholly agree with it.

One might fairly apply to these Acts the words of Chase J., in the Supreme Court of the United States in Calder v. Bull¹⁶: "These acts were legislative judgments; and an exercise of judicial power."

Blackstone in his Commentaries¹⁷ said:

"Therefore a particular act of the legislature to confiscate the goods of Titius, or to attaint him of high treason does not enter into the idea of a municipal law: for the operation of this act is spent upon Titius only and has no relation to the community in general: it is rather a sentence than a law."

If such Acts as these were valid the judicial power could be wholly absorbed by the legislature and taken out of the hands of the judges. It is appreciated that the legislature had no such general intention. It was beset by a grave situation and it took grave measures to deal with it, thinking, one must presume, that it had power to do so and was acting rightly. But that consideration is irrelevant, and gives no validity to acts which infringe the Constitution. What is done once, if it be allowed, may be done again and in a lesser crisis and less serious circumstances. And thus judicial power may be eroded. Such

15 (1965) 67 N.L.R. 193, 424.

16 (1799) 3 Dallas 386.

17 Vol. 1, p. 44.

an erosion is contrary to the clear intention of the Constitution. In their Lordships' view the Acts were ultra vires and invalid.

The appellants' third argument as to the appellants' right to a jury does not therefore arise and their Lordships express no opinion on the matter.

It may be that section 17 of the first Act can escape from its context and survive under the authority of Thambiayah v. Kulasingham,¹⁸ but as their Lordships had no argument on this point they prefer to express no opinion.

It was agreed between the parties that if the Acts were ultra vires and invalid, the convictions cannot stand. Their Lordships have therefore humbly advised Her Majesty that these appeals should be allowed and that the convictions should be quashed.

Solicitors: Fisher, Dowson & Wasbrough; T. L. Wilson & Co.

18 (1949) 50 N.L.R. 25, 37.