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313
1962 Present: T.
S. Fernando, J., L. B. de Silva, J., and Sri Skanda Rajah, J.
THE QUEEN v. D. J. F. D. LIYANAGE and others
Trial at Bar No. 1 of 1962
Trial-at-Bar under ss. 4, 8 and 9 of Criminal Law (Special Provisions) Act, No.
1 of 1962-Direction and nomination of Judges effected
in the English language
only-Communication thereof to Court in English-Validity of procedure- Powers of
Minister to direct a Trial
at Bar and to nominate
Judges-Constitutionality-Inadmissibility of evidence of mala fides in the
Minister-Effect of words "
shall not be called in question in any Court
"-Constitution of Ceylon- Separation of legislative, executive and judicial
powers-"
Judicial power "- Criminal Procedure Code, ss. 216, 440A-Official
Language Act, No. 33 of 19S6, s. 2-Language of the Courts
Act, No. 3 of
1961-Ceylon (Constitution) Order in Council, 1946, ss. 29 (1), 52, 88-Courts
Ordinance, ss. 6, 21, 51- Applicability
of principle that justice should not
only be done, but should manifestly be seen to be done.
Section 2 of the Official Language Act, No. 33 of 1956, reads as follows :-
" The Sinhala language shall be the one official language of Ceylon :
Provided that where the Minister considers it impracticable to commence the use
of only the Sinhala language for any official purpose
immediately on the coming
into force of this Act, the language or languages hitherto used for that purpose
may be continued to
be so used until the necessary change is effected as early
as possible before the expiry of the thirty-first day of December, 1960,
and, if
such change cannot be effected by administrative order, regulations may be made
under this Act to effect such change. "
Sections 8 and 9 of the Criminal Law (Special Provisions) Act, No. 1 of 1962,
read as follows :-
" 8. Any direction issued by the Minister of Justice under section 440A of the
Criminal Procedure Code shall be final and conclusive,
and shall not be called
in question hi any Court, whether by way of writ or otherwise.
9. Where the Minister of Justice issues a direction under section 440A of the
Criminal Procedure Code that the trial of any offence
shall be held before the
Supreme Court at Bar by three Judges without a jury, the three Judges shall be
nominated by the Minister
of Justice, and the Chief Justice if so nominated or,
if he is not so nominated, the most senior of the three Judges so nominated,
shall be the president of the Court.
The Court consisting of the three Judges so nominated shall, for all purposes,
be duly constituted, and accordingly the constitution
of that Court, and its
jurisdiction to try that offence, shall not be called in question in any Court,
whether by Way of writ or
otherwise. "
On the 23rd June 1962 the Minister of Justice, purporting to act under section
440A of the Criminal Procedure Code as amended by
section 4 of the Criminal Law
(Special Provisions) Act, No. 1 of 1962, directed that certain persons be tried
before the Supreme
Court at Bar by three Judges without a jury. Thereafter, on
the same day, purporting to act under section 9 of the Criminal Law
314
(Special Provisions) Act, he
filed in, the Court a document nominating three Judges to preside over the
trial. The direction and
nomination, and the communication thereof to the Court,
were effected only in the English language and not in, the Sinhala language.
Held, (i) that, even assuming that on or after 1st January 1961
official acts of officials could have been or can be performed only in
the
Sinhala language, as English is still admittedly the language of the Court, the
communication by the Minister to the Court
by documents made out in English of
the direction and nomination of Judges by him was a sufficient compliance with
the existing
law and was not rendered null and void by the provisions of section
2 of the Official Language Act, read with the Language of the
Courts Act, No. 3
of 1961.
(ii) that section 8 of the Criminal Law (Special Provisions) Act empowering the
Minister of Justice to issue direction that a Trial
at Bar be held by three
Judges without a jury, under section 440A of the Criminal Procedure Code, is
intra vires the Legislature.
(iii) that the provision in section 8 of the Criminal Law (Special Provisions)
Act that any direction by the Minister " shall
not be called in question in any
Court " excludes the admissibility of evidence to establish the existence of
mala fides in
the Minister.
(iv) that section 9 of the Criminal Law (Special Provisions) Act is ultra vires
the Constitution because (a) the power of nomination
conferred on the Minister
is 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
is in derogation thereof, and (6) the power of nominatioA is one which has
hitherto been invariably exercised by the Judicature
as being part of the
exercise of the judicial power of the State, and cannot be reposed in anyone
outside the Judicature.
(v) that the Minister's power of nominating the Judges, even had it been intra
vires the Constitution, would have offended against
the cardinal principle that
justice should not only be done, but should manifestly and undoubtedly be seen
to be done.
ORDER
made in respect of certain preliminary
objections taken to a Trial at Bar which was sought to be held under the
provisions of the
Criminal Law (Special Provisions) Act, No. 1 'of 1962.
G. G. Ponnambalam, Q. C., with S. J. Kadirgamar, E. A. 0. de Silva and K. N.
Choksy, for the 1st and 2nd Defendants, raised certain
preliminary
objections.-The Criminal Law (Special Provisions) Act, No. 1 of 1962, and more
especially sections 8 and 9 was an attempt
on the part of the legislature to
assume an authority where it had none and to fortify itself by seeking to
prevent the constitutionality
of the Act being raised in any court. The first
question therefore is whether the legislature can by an Act of Parliament
immunise
itself by withdrawing the powers of the courts to question the validity
of an Act.
The (Ceylon) legislature is not supreme and not merely Section 29 but every
section in the Constitution is an entrenched clause
because an amendment can
only be passed by a two third majority;
315
A country may be politically
sovereign without its legislature being supreme ; Parliament cannot pass an Act
that is ultra vires
and at the same time say that the Courts cannot declare it
invalid-Hood Phillips : " Constitutional Law of Great Britain and
the
Commonwealth " 2nd edition at pp. 44, 47 ; Harris v. The Minister of the
Interior (1952) 2 S. A. L. R. 428 at 464; Minister
of Interior v. Harris (1952)
4 S. A. L. R. 769 at 779.
Sections 8 and 9 of Act No. 1 of 1962 shut out the fundamental authority of the
courts to examine the validity of an Act. Legislation
is bad unless it is for "
the peace, order and good government of the Island " (a requirement of Section
29 (i) of the
1946 Constitution Order in Council). The Courts have a right to
examine whether a piece of legislation is for " the peace,
order and good
government of the Island"- Aziz v. Thondaman 61 N. L. R. 217 at 222 and 223 ;
Ashbury v. Ellis 1893 A. C. 339
(P. C.) (New Zealand Case) at 341 & 344; P. S.
Bus Co. v. C. T. B. 61 N. L. R. 491.
The Courts cannot avoid considering the question of jurisdiction in spite of
Sections 8 and 9. See The Queen v. Theja Gunawardene
56 N. L, R. 193 at 206 ;
Upper Argbid Assessment Comm. v. Gartsides Brewery 1945 All E. R. Vol. I 338 ;
In re " Arnaldo da
Brescia " 23 N. L. R. 391 at 395; Desphande v. Emperor 1945
A. I. R. (Nag.) 23 ; Liversidge v. Anderson 1931 A. C. 321.
Sections 8 and 9 say that the direction and nomination shall not be questioned
in " any " court. " Any court "
cannot include the Supreme Court.
The Minister's direction under section 440A of the Criminal Procedure Code was
bad in law for the following reasons :-
(i) In the context of the constitutional position of the time, the removal of so
fundamental a right as trial by jury in 1915 by
section 440A of the Criminal
Procedure Code was repugnant to the laws of England, and consequently ultra
vires of the Constitution
as it stood in 1915. In regard to the history of
Sections 216 and 440A of the Criminal Procedure Code dealing with trial at bar
and especially the constitutional background to the introduction of Section 440A
in 1915, see :-Ordinance No. 18 of 1915 (introducing
440A) ; Royal Charter of
1810 (esp. clause 10) introducing trial by Jury; Royal Instructions 24th
November 1910; Letters Patent
24th November 1910 ; Ceylon Constitutional Order
in Council 1920 (esp. sections 44, 45, 47); Royal Instructions 11th September,
1920 ; Letters Patent 11th September 1920 ; Parliamentary Government in the
British Colonies (1894) 2nd Edition.
(ii) The substitution of " the Minister of Justice " for " the Governor by
warrant under his hand " in section
440A by proclamation under the power given
by section 88 of the Constitution Order in Council of 1946 " to modify, add to,
or adapt " any written law was ultra vires the Constitution. The Minister of
Justice as a politician and a member
316
of the Cabinet cannot be equated
to the impersonal Head of State. In the context of the constitutional background
the substitution
was invalid and the Minister of Justice was not the proper
authority to issue the direction under section 440A.
It is incongruous that the sanction of the Governor-General is necessary for
prosecution under section 104 of the Criminal Procedure
Code while the hallowed
right of trial by jury may be suspended by a mere fiat of the Minister under
section. 440A.
Other consequences (anomalies and contradictions) would flow from' the attempt
to substitute the Minister of Justice for the "
Governor by warrant under his
hand ". Was it proper for the Attorney-General to disclose information to the
Minister of Justice
and had the Ministers the right to call for information from
the Attorney-General who is a non-political person ? Under our Constitution
the
Minister of Justice has no right and is not expected to interfere with the
performance of judicial functions or with the institution
or supervision of
prosecutions. Nor has he any power to issue any direction to any court. His
functions are purely ministerial
and administrative. The direction therefore was
an unconstitutional and invalid order.
Then there was the form of the Direction ; whom does the Minister direct-the
Supreme Court or the Chief Justice ? What happens if
the Supreme Court or the
Chief Justice ignores it as it transgresses the spirit of the constitution ?
Conflict between the executive
and the judiciary would inevitably arise if the
Chief Justice orders a trial at bar by Jury under section 216 and the Minister
under section 440 A makes a direction for trial at bar without a jury. A
direction as in this case would be in direct conflict with
the cypress
provisions of section 5 of the Criminal Procedure Code. See :-Criminal Procedure
Code Sections 5, 104, 216, 385, 440A;
Ceylon Constitution Order in Council, 1946
(sections 88, 45, 46,45 (2); Ceylon Independence Order in Council, 1948;
Soulbury Report,
paras. 394-396, 401-405 ; Proclamation in Government Gazette
No. 9,773 of 24th September, 1947; Proclamation in Government Gazette
"No. 9,828
of 5th February, 1948 ; In Re Agnes Nona 53 N. L. R. 106.
(iii) The direction of the Minister is also invalid because it is a direction of
a member of the Executive in a cause in which he
had great personal interest
leading to bad faith-mala fides. The jurisdiction of the court flows from the
direction of the Minister
(of 23rd June 1962). The Court can go into the
question of bad faith. On the unquestioned facts as contained in the information
laid, there was alleged an attempt to overthrow the Government of which the
Minister was a member. This alone is sufficient to
establish his personal
interest, and bias should be presumed. No person interested in the cause should
be a judge. That "
justice must not only be done but should seem to be done "
may be a hackneyed phrase but has not lost favour.-Desphande v.
Emperor' 1945 A.
I. R. (Nag.) 23.
317
Counsel then went on to deal with
what he called " the second limb of the argument ", viz., the jurisdiction and
constitution
of the court: the nomination of the judges by the Minister. There
is no legislation here or anywhere which contains in one small
Act principles
and devices so fundamentally opposed and abhorrent to the way justice is
normally administered in criminal cases.
The whole scheme of the Act reveals a
purpose different from what appears on the face of the Act. The legislature
cannot do indirectly
by a subterfuge what it cannot do directly. Some of the
objectionable features of the Act are : the creation of new offences making
them
retroactive ; the creation of a new court specially constituted on the
nomination of Judges by a Minister ; the provision
that no court can question
the direction of the Minister or the constitution and jurisdiction of the court;
the laying down of
procedure by the court of trial itself; confining the
authority and jurisdiction of the court to one special case ; providing for
the
expiry of the provisions of the Act as regards this case ; suspending the
operation of certain sections of the Criminal Procedure
Code dealing with the
investigation of cognizable offences; amending the Evidence Ordinance and
fundamental rules thereunder, admitting
hearsay and admitting confessions
obtained at a time when the law made them inadmissible ; reposing in the
Inspector-General of
Police and his associates an uncontrolled power for
preventive detention on mere suspicion and not on reasonable grounds ; detention
under conditions which were not published ; right to suspend both the provisions
of and rules under the Prisons Ordinance ; startling
innovation of trial in
absentia.
Certain dates are significant: On the 22nd two new judges were appointed to the
Supreme Court and on the 23rd came the direction,
the information and the
nomination of the judges of this court.
The nomination of the Judges by the Minister was a violation of the Constitution
and ultra vires the Constitution. It was an open
attempt to interfere with one
of the entrenched institutions in the Constitution, viz., an independent
judiciary.
One reason why this cannot be done is that under our Constitution there is a
separation of powers. There is clearly a three-fold
division of governmental
powers between the 3 main organs. The separate headings " The Legislature ", "
The Executive
" and " The Judicature " (Parts III, V and VI of the Constitution)
must be given due weight. See Inglis v. Robertson
1898 A. C. 616 at 624. We do
not have a complete separation of powers but there is a definite separation and
greater than in England
See Jennings & Tambiah : Vol. 7 British Commonwealth p.
76. Although the Judicature is dealt with in Part VI it is not complete
in
itself, for the f frammers of the Constitution appear to have adopted
institutions as they found them at that time. The Constitution
does not say what
the Supreme Court is. For this purpose we must look to statute law like the
Courts Ordinance to complete the
picture.
318
It is quite clear that the
Constitution tried to establish the independence of the judiciary by seeing to
it that the executive
did not have a hand in the appointment, removal and
salaries of judges. That was the purpose too of the Judicial Services Commission
: to prevent executive interference. See Senadhira v. Bribery Commissioner 63 N.
L. R. 313 at 317 ; The Bracegirdle case 39 N.
L. R. 193 at 210.
The relevant sections of the Criminal Law (Special Provisions) Act must be
considered in the light of the complete independence
of the judiciary well
established in the past. Traditional and historical usages and practices must be
taken into consideration
in the interpretation of statutes.-Naim v. University
of St. Andrews 1909 A. C. 147.
When the executive could not and dared not make a frontal attack on the
independence of the judiciary, could it by legislation seek
a colourable device
to establish a court parallel to the Supreme Court and thereby nullify the
independence of the judiciary ?
This is a case of the executive seeking through
an act of the legislature to do indirectly what it cannot to directly. In such
cases the Courts will examine the true character of the legislation (the pith
and substance) to decide whether it is intra vires
the Constitution. On
examination the Act in question reveals a concealed purpose and endeavours to
achieve by a legislation passed
by an ordinary majority something prohibited by
the well established principle of the independence of the judiciary which the
Constitution
itself safeguards. See :-Kodakan Pillai v. Mudanayake 54 N. L. R.
433 at 438; A. G. Ontario v. Reciprocal Insurers 1924 A. C. 328
at 337 ; Union
Colliery Co. v. Attorney-General of British Columbia 1899 A. C. 580 ;
Attorney-General of Ontario v. Attorney-General
of Dominion of Canada 1896 A. C.
348 ; Canadian Federation of Agriculture v. Attorney-General of Quebec 1951 A.
C. 179 at 195.
The nomination of the Judges by the Minister also destroys the oneness and
identity of the Supreme Court. Section 52 of the Constitution
refers to " the
Supreme Court" but does not say what it is. It seems to have adopted the
institution as it was at the
time. But the Courts Ordinance 1889 and the earlier
Charters (1801, 1810, 1811, 1833) make absolutely clear the " oneness "
of the
Supreme Court. [In reply to Court, Counsel said it was not necessary for him at
this stage to claim that certain sections
of the Courts Ordinance were part of
the Constitution although that was his view. But he wished to state that section
52 of the
Constitution Order in Council, section 6 and section 3 and section 41
of the Courts Ordinance, and clause 5 of the Charter of 1833
were all connected
up and established beyond doubt the oneness and identity of the Supreme Court.]
Section 52 of the Constitution
must be examined against the background of the
past. There cannot be two parallel Supreme Courts or a subdivision of the
Supreme
Court. Although section 9 of the Criminal Law (Special Provisions) Act
speaks of the " Supreme Court ", what it brings
into existence is not the
Supreme Court. Nomination of the Judges by a Minister is totally foreign to
319
the institution of the Supreme
Court. In addition it is repugnant to the concept of the independence of the
judiciary and something
utterly unknown to and ultra vires the Constitution.
[Counsel cited various provisions of the Courts Ordinance, the Court of Criminal
Appeal Ordinance, and the Parliamentary Elections Order in Council to show that
constituting a bench to hear a case has always
been a duty of the Chief Justice
himself or a matter for the internal arrangement of the Court.]
Nowhere can an " alien " hand interpose itself and attempt to nominate judges.
The moment a foreign hand comes in and
picks 3 out of the panel of Supreme Court
Judges the resulting court- loses the character of the Supreme Court, and what
it forms
is a tribunal of 3 Supreme Court judges-but not the Supreme Court. The
reference in section 9 of Act 1 of 1962 to " the Court
consisting of three
judges " is an appreciation of this fact, and the declaration that it is " duly
constituted "
arises from an inner consciousness of its inherent weakness. See
Engineer's Case 1913 A. C. 107.
The position of the Minister of Justice as recommended in Articles 394, 395, 396
of the Soulbury Report is important. There could
be no question of the Minister
of Justice having any power of interference as regards the institution of
criminal or civil proceedings.
The Manual of Procedure cannot be interpreted to
give the Minister such a power. Any Prime Minister allocating functions must
allocate
them within the bounds of the Constitution.
[In reply to Court, Counsel said that it was particularly section 9 of the Act
of 1982, with its power of nomination by the Minister,
which offended the
Constitution. It offended Part IV of the Constitution, especially sections 52
and 53. Inherent and implicit
in these provisions is the effort of the
Constitution to preserve the independence of the judiciary and prevent the taint
of influence
by the executive. In answer to Court whether it was not the
judicial function that was preserved, Counsel said that that could only
be done
by isolating the judiciary from any possible taint of executive influence. He
referred to a lecture by Lord Justice Denning
on "Independence and Impartiality
of Judges " in 1954 S. A. L. J. 5 Vol. 71 Part IV at p. 351.]
The nomination of Judges is an interference with the judicial process. The
judicial process in this case starts with the direction.
[Replying to a question by Court whether Act 1 of 1962 would have been valid if
passed by the British Parliament, Counsel replied
that the British Parliament
was supreme while Ceylon, Australia, New Zealand, etc., had written,
Constitutions. He submitted that
legislation in Ceylon, to be intra vires the
Constitution, must not only observe section 29 (2) but also section 29 (1) and
be
for " peace, order and good government ".]
G. G. Ponnambalam, Q.C., with S. J. Kadirgamar, JS. A. G. de Silva, R. A.
Kannangara and K. N. Choksy, for the 3rd Defendant.
320
E. G. Wikramanayake, Q. C., with
A. C. M. Ameer, R. A. Kannangara and G. T. Samerawickreme, for the 4th
Defendant.-It is clear law
that the court has the power to decide whether it has
jurisdiction to hear the case, and if there is anything that has infringed
the
Constitution, to declare it ultra vires. See Queen v. Theja Gunawardene 56 N. L.
E. 193.
Section 29 of the Constitution Order in Council of 1946 provides that Parliament
may " make laws for the peace, order, and
good government of the Island ". o
There is an overwhelming presumption that Parliament legislates for peace, order
and good
government but it is not an irrebuttable presumption. When in a given
case that presumption is rebutted it is the duty of the courts
to hold that the
piece of legislation in question is ultra vires the Constitution. Section 9 of
Act 1 of 1962 is not for "
good government ". Section 29 (2) provides for
further limitations and the opening words of the section " no such law
" are
significant. Section 29 (3) makes void " such " laws as have already passed the
test under section 29 (1)
but fall under the prohibited class in section 29 (2).
Even assuming that the direction given by the Minister of Justice was good, the
selection of Judges by the Minister to hear the
case was ultra vires the
Constitution. According to the Constitution no one outside can interfere with
matters relating to the
Supreme Court. Even with regard to the minor judiciary
no one outside can interfere with any appointment, dismissal or transfer
of a
judicial officer. See Part IV of the 1946 Constitution Order in Council.
We have had Constitutions and changes of Constitutions but the constitution
(i.e. the functions) of the Supreme Court has always
remained the same. There
has always been only one Supreme Court and this oneness of the Supreme Court
needs to be stressed. See
section 3 and section 6 of the Courts Ordinance.
Judges sit as representatives of the Supreme Court whether singly or
collectively
and not as Supreme Court judges. The distribution of work among the
judges and the question of who should hear a particular case
is entirely an
internal matter. When there is any outside interference in the selection of a
judge or judges the integrity of the
Supreme Court is broken. The picking of
three judges by the Minister to hear this particular case had a disintegrating
effect and
the resulting court is not the Supreme Court but only a panel of
three judges of the Supreme Court. Anything that breaks up the
Supreme Court is
an interference with the independence of the judiciary.
As soon as the information is laid the Supreme Court takes cognizance of it. In
the present case the direction came before the information-
a direction to try a
non-existing case. The judicial process may be said to begin with the direction
and certainly begins with
the information.-The nomination by the Minister that
came after the information was an interference with the judicial process.
321
The legislature may create new
courts but they must not come into conflict with the courts already functioning
and recognised by
the Constitution. See Senadhira v. Bribery Commissioner 63 N.
L. R. 313 ; Tillekawardene v. Obeyesekera 33 N. L. R. 193; Huddart
Parker v.
Moorehead 8 Com. L. R. 330 at 357.
The direction and the nomination do not exist in law. Since the direction and
the nomination were acts of the Minister, they were
official acts. All official
acts have to be in the official language : Sinhala. Neither the direction nor
the nomination was made
in Sinhala. By section 2 of the Official Language Act
No. 33 of 1956 "The Sinhala language shall be the one official language
of
Ceylon. " The proviso to section 2 permitted the use of other languages already
in use where it was impracticable to commence
the use of Sinhala immediately,
but the proviso itself fixed 31st December 1960 as the date beyond which only
Sinhala was to be
used for all official purposes. The word official has not been
defined in the Act. The ordinary Oxford English Dictionary meaning
of an
official act as an act authorized by the Government would apply.
Neither the Tamil Language (Special Provisions) Act No. 28 of 1958, nor the
Language of the Courts Act No. 3 of 1961 has in any
way altered the position
that since 31st December 1960 Sinhala is the one official language for all
official purposes.
It is not contended that Sinhala is the language of the legislature or the
language of the Courts. English may be the language of
the courts but direction
by a Minister is an official and an administrative act. If official acts are to
be in the official language
the direction in the present case does not exist.
Since the language of the courts is English, and the direction has to be in
Sinhala,
a translation in English may be annexed but that is only a matter of
convenience.
The nomination too is bad for the same reason. But the nomination would be bad
even if it was in Sinhala.
G. G. Ponnambalam, Q. C., with Stanley de Zoysa, S. J. Kadirgamar A. G. M.
Ameer, E. A. G. de Silva, Neville de Jacolyn Seneviratne
and Manivasagan
Underwood, for the 5th Defendant.
G. G. Ponnambalam, Q. C., with S. J. Kadirgamar, E. A. G. de Silva, R. A.
Kannangara, K. N. Choksy and R. Ilayperuma, for the 6th
Defendant.
G. G. Ponnambalam, Q. C., with S. J. Kadirgamar, E. A. G. de Silva, G. F.
Sethukavalar and R. R. Nalliah, for the 7th Defendant.
G. G. Ponnambalam, Q. ., with S. J. Kadirgamar, E. A. G. de Silva and R. R.
Nalliah, for the 8th Defendant.
G. G. Ponnambalam, Q. C., with S. J. Kadirgamar, A. G. M. Ameer, E. A. G. de
Silva, R. R. Nalliah and E. Cooray, for the 9th Defendant.
322
G. G. Ponnambalam, Q. C., with S.
J. Kadirgamar, E. A. G. de Silva, Lucien Weeramantry and K. Viknarajah, for the
10th Defendant.
S. J. Kadirgamar, with E. A. G. de Silva, L. Kadirgamar and R. L. Jayasuriya,
for the 11th Defendant.
S. J. Kadirgamar with A. C. M. Ameer, E. A. G. de Silva and K. Viknarajah, for
the 12th Defendant.
G. G. Ponnambalam, Q C., with S. J. Kadirgamar, A. G. M. Ameer, E. A. G. de.
Silva, G. F. Sethukavalar and B. R. Nalliah, for the
13th Defendant.
G. G. Ponnambalam, Q. C., with S. J. Kadirgamar, A. C. M. Ameer, E. A. G. de
Silva, R. R. Nalliah and E. Cooray, for the 14th Defendant.
G. G. Ponnambalam, Q. C., with S. J. Kadirgamar, E. A. G. de Silva and R. A.
Kannangara, for the 15th Defendant.
E. G. Wikramanayake, Q. C., with M. Tiruchelvam, Q. C., J. A. L. Cooray, G. T.
Samerawickreme and R. A. Kannangara, for the 16th
Defendant.
G. G. Ponnambalam, Q. C., with S. J. Kadirgamar, E. A. G. de Silva and Sunil
Rodrigo, for the 17th Defendant.
E. G. Wikramanayake, Q. C., with J. V. G. Nathaniel and A. W. N. Sandrapragas,
for the 18th Defendant.
H. W. Jayewardene, Q. C. with R. A. Kannangara, L. C. Seneviratne and P. N.
Wikramanayake, for the 19th defendant.-In examining
the Ceylon Constitution it
is helpful to ascertain the origin of judicial power in this country.
In the earliest form, of society judicial power came into existence before the
exercise of legislative power. See Ancient Law-Mayne
133. In the growth of
civilisation, there was first the institution of the Family which developed into
the organisation of the
Clan or Race. From here there grew the organisation or
institution known as the State or Nation. In each of these institutions it
was
the head of the respective institution that exercised the judicial power-namely
the power to decide disputes. Then there came
the Greek and Roman
civilisations-during which time the power of judging was transferred by the Head
of the State to a few persons
who had specialised knowledge-the Senate-who acted
as an independent judicial body in deciding disputes between man and man and
between man and State.
Next there was the Anglo-Saxon period in England-Henry II made the first attempt
to establish judicial power in an independent body
by setting up courts and
itinerant justices. After the attempt by King Charles to interfere with the
judicial process failed the
rights and liberties of the subject were decided by
a body completely independent of the executive.
323
In Ceylon before 1796 there
existed for a long period an independent judiciary. See History of Ceylon
published by the University
of Ceylon 1960 Edn. Vol. 1 at page 558 ; Sinhalese
Social Organisation-Ralph Peiris 147 ; Sketch of the Constitution-Doyly-page
28;
Jennings and Tambiah- Ceylon Constitution 'page 101 re the Dutch Courts.
The terms of the capitulation on 5.11.1796-clauses 16, 23 and Legislative
Enactments 1796 to 1873, referred to. The rights and liberties
of the subject
already enjoyed were guaranteed. Also a system of courts was to be set up. A
further principle was recognised by
this capitulation, namely that laid down in
Campbell v. Hall 98 E. R. 105 (1047) that the fundamental rights of His
Majesty's subjects
are guaranteed to the people of Ceylon. The source of these
fundamental rights is the Magna Carta and one of those rights is that
no man
shall be punished or dealt with except by due process of law. In accordance with
these guarantees the British set up an
independent judiciary.
Effect of Sec. 9 of Act No. 1 of 1962 is to undermine all three pillars of the
temple of justice-the appointment, tenure and dismissal
of a Supreme Court Judge
governed by Sec. 52 of the Order-in-Council. For this reason, Sec. 9 is ultra
vires and contrary to the
Ceylon Constitution. See Lord Atkin's judgment in 1938
(2) A. E. R. 601-Toronto Corporation v. York (Township), A. G for Ontario.
1. Appointment.
Judicial power can only arise by virtue of an appointment by the
Governor-General under Sec. 52 of the Constitution Order-in-Council.
Any attempt
to interfere with that appointment by a later Act by the Executive Authority
would undermine this pillar of the temple
of justice.
Once a Judge of the Supreme Court is appointed, he is vested with the judicial
power of the Supreme Court, i.e. the power to hear
and determine any case that
comes up in the Supreme Court. The Judge has the discretion to decide as to
whether he should in fact
hear a particular case. The effect of Sec. 9 is to
leave no such discretion in the Judge. The Minister is now given the power to
say " Judges A. B. C. shall hear a particular case ". Then the other Judges are
disqualified from hearing the case.
The position is that a Judge appointed under Sec. 52 cannot hear this case even
though he is vested with the judicial power of the
Supreme Court. He derives the
power to hear this case by virtue of his nomination and is exercising a power
which the Minister
has invested in him under Sec. 9 of Act No. 1 of 1962. In
other words, the appointment by the Governor General under Sec. 53 of
the
Order-in-Council becomes irrelevant when it comes to hearing of this case.
Therefore the power of nomination in Sec. 9 of Act
No. 1 of 1962 is inconsistent
with Sec. 52 (1) of the Order-in-Council.
324
" Nominate " means in fact "
appoint ". " Nominate " means to appoint by name. See : Short's Oxford
Dictionary ; Letters Patent by which Judges of the Supreme Court are appointed.
Once the Governor General appoints a Judge of the Supreme Court under Sec. 52
there can be no other appointment or nomination. See
Attorney General, Ontario
v. Attorney General of Canada 1925 A. C. 555; 133 Law Times 434; Waterside
Federation of Australia v.
Alexander 25 Common. L. Rep. at page 468. The former
case is exactly in point.
The power of a Judge under Sec. 52 (1) is to hear cases generally ; this power
cannot then be limited to the hearing of a particular
case as is sought to be
done under Sec. 9, because it precludes the other Judges from hearing this
case-this results then in a
violation of Sec. 52 (1) which gives all the Judges
of the Supreme Court the power to hear all cases that come up before the Supreme
Court.
2. Tenure.
In Ceylon a Judge of the Supreme Court holds office till he is 62 years of age
unless he retires earlier or is removed from office.
A Judge can be removed by
an address of both Houses of Parliament. They do not hold office at pleasure of
the Crown.
When the Minister makes his nomination he in effect says " You will hear this
case " i.e., once the trial terminates the
Judges are functus officio. This is
an ad hoc appointment. See Alexander's Case 25 Commn. Law Rep. 447.
3. Dismissal.
The right or power to appoint carries with it also the power to dismiss- the
incident of the power to appoint is the power to remove.
See : Interpretation Ordinance Sec. 14 (/) with Sec. 18 and Myers v. United
States 272. U. S. (S. C. R.) 52.
The Minister can withdraw the nomination on any ground ; there is no restriction
on his right to remove a Judge.
The vesting of the power of nomination in the Minister under Sec. 9 is also in
violation of the judicial power of the Supreme Court
which is entrenched in Sec.
52 of the Constitution Order-in-Council. " Judicial power " is the right vested
in a Court
to determine disputes. As to the definition of judicial power see
dicta per Griffiths C. J. in Huddart Parker Ltd. v. Moorehead
8 Comm. L. R. 330.
Judicial power is created under Sec. 52. Its source is the Governor General who
appoints Judges to the Supreme
Court and it is this appointment that vests
judicial power in the Judges. The definition of " judicial power " in the
Huddart Parker case was followed in Shell Company Case 1931 A. C. 144 and "o
Labour Relations Board of Sasketchwan v. John
East Ironworks 1949 A. C. 134
(149) P. C.
325
The power of nomination is an
incident in judicial power which is entrenched in Sec. 52 and this section is
violated when the Minister
is given the power to nominate.
An ancillary power (like the power of nomination) is so inextricably bound up
with the exercise of judicial power that it cannot
be interfered with. This is a
matter for those who exercise that power. See : In re Wells 13 E. R. 92 ; The
King v. Damson 90 Comm.
L. R. 353. The latter case deals with the question of
the exercise of judicial power and acts which are incidental to the exercise
of
judicial power.
Separation of Powers. The Ceylon Constitution is one in which the doctrine of
the separation of powers has been given effect to.
The legislative, executive
and judicial functions are placed in three departments and they cannot trespass
on the powers or activities
of each other- unless they are allowed to do so by
legislation passed in the form and manner required by the Constitution.
The doctrine of the separation of powers is part and parcel of the Constitution.
This doctrine has been considered in America.-Kilbourn
v. Thompson 103 U. S. (S.
C. R.) 377 ; Myers v. United States 272 U. S. (S. C. R.) 52 (116) which deals
with the power of removal
being implicit in ' the power of appointment-at p. 161
(110). In this case, on the question of the separation of powers all the
Judges
were in agreement. See (177) (199) (235) (291) (240). Springer v. The Government
of the Philippine Islands 277 U. S. Reports
188; Organic Act of the Philippines
of 1916 Sec. 12 ; Sawyer v. Youngstown Steel Co. 343 U. S. R. 579. (1166 ; 1168
; 1172 ; 1179
; 1181).
This doctrine has also been dealt with in Australia. See :- 20 Comm. L. R. 54
(87, 88); Waterside Federation of Australia v. Alexander
25 Comm. Law Rep;
Victoria Steel Rolling Co. v. Digman - 46 Comm. L. R. 73 (130) ; Queen v. Kirby
- The Boilermakers Case 1957
Vol. 2 A. E. R. 45 (51 E. 53).
In Ceylon this doctrine has been recognised from as far as 1833 so far as this
Court is concerned. See Charter 1833. This Charter
was introduced as a result of
Reports submitted by Messrs Colebrooke and Cameron. See Colebrooke Cameron
Papers Vol. 1. by G. C.
Mendis and Vol. 2 pages 125, 350 and Communication by
the Secretary of State to the Governor, accompanying the Charter of 1833.
Under the Donoughmore Constitution there were attempts to join the legislature
and the executive but judicial functions were kept
distinctly apart. Under the
Soulbury Commission the doctrine of separation of powers is recommended-Soulbury
Commission Reports
- Sec. 395 and 396 at pages 105 and 106.
The Ceylon Constitution Order-in-Council deals with separation of Governmental
functions in the Constitution-Part II Governor-General,
Part III Legislature,
Part VI Judicature. See : Agnes Nona's Case, 50 N. L. R. 106 (112); Senadheera
case, 63 N. L. R. 313 ; Queen
Victoria Memorial Hospital v. Thornton. 87 Comm.
L. R. 144.
326
The function of selecting Judges
to hear a particular case is a function that has been hitherto performed by the
Judges-this function
has now been delegated to the Chief Justice. Therefore this
function belongs to that part of the Constitution dealing with the Judicature
and the giving of that power, namely, the power to exercise what is a judicial
function to an administrative official is a violation
of the Constitution.
Further, when the Constitution came into being, historically, the function of
selecting Judges was vested
in the Judges themselves or in the Chief Justice. It
is a judicial function and it cannot be conceived that the framers of the
Constitution had in mind that a Minister should be vested with the right to
select Judges. It is submitted that this is an attempt
by the legislature to
trench in or encroach into Part VI of the Constitution.
It is also a well known rule of interpretation that where a person is vested
with a power, he is necessarily invested also with
all those subsidiary and
ancillary powers which would enable him to carry out the primary power-Craie's
Statute Law 5th Edn. 239.
The judicial power is vested in the Supreme Court or the Judges of the Supreme
Court. Then all those ancillary powers necessary
for the performance of the
primary function-the judicial function-are judicial functions too. The question
is what are those ancillary
powers necessary for the purpose of exercising the
primary power. My submission is that the power of appointment is ancillary to
the exercise of the judicial power and to vest it in. the Minister would be a
violation of the Constitution. See : Queen v. Damson
90 Comm. L. R. 353. The
only way this could be done is to first alter the Constitution by a two-third
majority and thereafter by
passing necessary legislation-Cooper v. Commissioner
of Income Tax 4 Comm. L. R. page 1304 at p. 1317.
The tests by which whether an ancillary function is a part of the judicial power
may be ascertained, are laid down in Queen v. Damson
and may be usefully applied
to the present case. The historical test as laid down by Dean Roscoe Pound and
the Holmes test as laid
down by Holmes J., referred to. The answer to either of
these tests if applied to the present case would show that the power of
nomination is essentially a function of the court and cannot be reposed in the
executive.
Section 9.
The nomination is for some of the Judges of the Supreme Court. Once Judges are
nominated the rest of the Judges of the Supreme Court
are unable to hear the
case-they are incapacitated from hearing the case.
The authority for hearing the case is the nomination under Sec. 9. The
appointment by the Governor-General under Sec. 52 (1) is.
not the source of the
power to hear the case-it is derived from the nomination by the Minister.
327
[T. S. FERNANDO, J.-When a Judge
of the Supreme Court is appointed by the Governor-General tinder Sec. 52 of the
Constitution he
receives the judicial power ; and if a law is enacted taking
that judicial power which is conferred by Sec. 52, then that is a violation
of
Sec. 52......
Therefore if the Minister has been given a special power of appointment, it is a
contravention of the general power of appointment
under Sec. 52-]
That is the pith and substance of what I was trying to say.
On the question of separation of powers, in the American, Philippines and
Australian Constitutions there is a specific vesting of
the legislative,
executive and judicial powers in the legislature, executive and the judicature
respectively. There is no vesting
of judicial power in the Supreme Court because
the Supreme Court was already in existence at the time of the Constitution. The
authorities are quite clear that once a Constitution creates a separation of
powers there need not be express words to say that
one branch or function of
Government cannot trench in on the other. It can only be done by way of a proper
amendment of the Constitution.
See : Marbury v. Madison 1 Cranch Reports 137, 2
U. S. (S. C. R.) 135 (Lawyers' Edition), Myers Case 272 U. S. R. (138-140)
(237).
Once it is recognised that there is a separation, then it follows you cannot
exercise the powers of another department. See : Senadhira's
Case, 63 N. L. R.
313; Macaulay v. King, 1920 A. C. 691; A.G. New South Wales v. Trethowan, 44
Comm. L. R. 394.
In regard to the question of the bona fides and mala fides of the Minister in
issuing the nomination and direction-Firstly, sec.
9 does not prevent this Court
from going into this question- ' any court' does not refer to this court but to
another court; the
essential condition of the exercise of judicial power by a
particular court is to determine whether it has jurisdiction to entertain
the
litigation and this can only be taken away by express words. If the effect of
Sec. 9 is to bar this Court from going into the
question of jurisdiction, then
it is an interference with the judicial power of this court. See : Halsbury Vol.
9 (3rd Edn.) p.
350 Sec. 822; Chester Bateson, 1920 (1) R. B. 829 ; 122 L. T.
684; Theja Ounawardene's Case, 56 N. L. R. 193.
The question is whether the Minister in exercising his discretion in issuing the
direction and nomination has acted bona fide or
mala fide. See : 1947 (2) S. A.
L. R. 984 ; Malyali v. The Commissioner of Police, 1950 A. I. R. Bombay, 202
(203); Suriyawansa
v. Commissioner of Local Government, 48 N. L. R. 433 (436) ;
de Smith-Judicial Review of Administrative Action, page 229 ; Desphande
v. The
Emperor, 1945 A. I. R. Nagpur 8.
A. H. C. de Silva, Q. C., with S. Alles and K. C. Kamalanathan, for the 20th and
21st Defendants.-When there is a direction under
section 440A of the Criminal
Procedure Code, a Trial at Bar can be held before the Supreme Court without a
Jury and from that moment
there can be no interference with the course of that
case except by law, provided the law is good.
328
There is no provision in the
Courts Ordinance, the Criminal Procedure Code or in the Constitution, in the
absence of any special
legislation, for a Minister to interfere with the
selection of Judges. But for section 9 of the Criminal Law (Special Provisions)
Act, No. 1 of 1962, the Minister's power ends when the direction has been given.
Section 9 places a bar, and it is not possible
for any Judge of the Supreme
Court to hear that case till a nomination of Judges is made by the Minister.
The Governor-General appoints Judges of the Supreme Court under section 52 (1)
of the Ceylon Constitution Order-in-Council. When
they are thus appointed they
are vested with judicial power which continues till they retire or till they are
removed by an address
of both Houses of Parliament. The Judges can then hear
every case which comes before the Supreme Court.
When a direction is given by the Minister, the authority given to Judges of the
Supreme Court on appointment under section 52 (1)
of the Ceylon Constitution
Order-in-Council to hear any case which comes before the Supreme Court is taken
away by section 9 of
the Criminal Law (Special Provisions) Act. Then, till the
Minister makes an appointment of Judges to hear this case, none of the
Judges of
the Supreme Court have the authority to hear it. In that sense, that nomination
is an appointment of Judges to hear that
case.
The nomination by the Minister does not constitute a Bench of the Supreme Court.
In view of the fact that section 440A of the Criminal
Procedure requires a Trial
at Bar to take place before the Supreme Court, this Court has no jurisdiction to
hear a Trial at Bar.
The nomination by the Minister under section 9 of the
Criminal Law (Special Provisions) Act is ultra vires of the Constitution.
If the
power to nominate Judges of the Supreme Court is to be given to a Minister, it
must be done by amending the Constitution.
G. G. Ponnambalam, Q. C.: with S. J. Kadirgamar, E. A. G. de Silva, Izadeen
Mohamed and H. D. Thambyah, for the 22nd Defendant.
G. G. Ponnambalam, Q. C., with Stanley de Soyza, S. J. Kadirgamar, E. A. G. de
Silva, Neville de Jacolyn, K. Viknarajah and R. Ilayperuma,
for the 23rd
Defendant.
G. G. Ponnambalam, Q. C., with S. J. Kadirgamar, E. A. G. de Silva and Cecil de
S. Wijeratne, for the 24th Defendant.
Douglas St. C. B. Jansze, Q. C., Attorney-General, with V. Tennakoon, Deputy
Solicitor-General, Ananda Pereira, L. B. T. Premaratne,
T. A. de S. Wijesundere,
V. S. A. Pullenayegum and Noel Tittawella, Crown Counsel, for the
Prosecution.-The words "Peace ",
" Order " and " good Government " in Article 29
(1) of the Ceylon Constitution are not words of limitation but
are a compendious
expression employed for conferring on the Parliament of Ceylon the plenitude of
legislative power. The Court-will
not inquire of any enactment, whether it does
in fact promote peace, order or good government-vide Kiel v. The Queen (1885) 10
Appeal Cases f 675 and Chenard and Company v. Joachim Arissol (1949) A. C. 127
at page 132.
329
The direction issued by the
Minister of Justice under Section 8 of the Criminal Law (Special Provisions)
Act, No. 1 of 1962, and
the nomination made by the Minister of Justice under
Section 9 of the same Act cannot, if intra vires the Constitution, be called
in
question in any court as the express words of the sections prohibit such a
challenge even on the grounds of mala fides-vide
Smith v. East Elloe Rural
District Council (1956) Appeal Cases 736.
There is no separation of powers in the Ceylon Constitution as found in the
Constitutions of the United States and of the Commonwealth
of Australia. The
Constitution of Ceylon has been modelled on the Constitution of the United
Kingdom in which there is no such
separation of powers-vide paragraphs 408 to
410 of the Report of the Commission on Constitutional Reforms, CMND 6677 of
September
1945.
Articles 52 to 56 of the Ceylon Constitution Order in Council which are to be
found in the Part headed '' The Judicature "
do not provide for the
establishment of a Judicature. Such provisions are to be found in the Courts
Ordinance (Cap. 6). Articles
52 to 56 are primarily concerned with ensuring the
independence of the Judiciary. The independence of the Judiciary does not
require
that Judges should have the freedom to decide which case they may hear
but it requires that they should have the freedom to decide
any case which they
may hear in any manner that they think the law requires and justice demands.
The term " judicial power " is not used anywhere in the Ceylon Constitution. The
concept of judicial power derived from
the Constitution of the United States and
of the Commonwealth of Australia (where such term is used) must therefore be
used with
caution. The concept of judicial power derived from these
Constitutions has been employed in Senadhira v. The Bribery Commissioner,
(1961)
63 N. L. R. 313, to provide a definition of the term " Judicial Officer " in the
Ceylon Constitution. A scrutiny
of the cases on this topic would indicate that
the term " judicial power " is used, broadly speaking, in three senses,
viz :
(i) the strict sense, i.e. " the power which every sovereign must of necessity
have to decide controversies between its subjects
or between itself and its
subjects, whether the rights relate to life, liberty or property -" vide Huddart
Parker & Co.
Pty. Ltd. v. Moorehead (1909) 8 C. L. R. 330 at 357 ;
(ii) the power of judicial review ;
(iii) in a wide sense to include any power conferred upon a Judge : vide
Attorney-General of Gambia v. N'Jie (1961) Appeal Cases,
617.
It is the first sense stated above that the term ' judicial power ' bears when
it is used in a constitutional context.
It is conceded, for the purposes of this case, that under the Constitution of
Ceylon judicial power in this sense must be exercised
by Judges of the Supreme
Court or Judicial Officers appointed by the Judicial Service
330
Commission. The power of
nomination of Judges is clearly not an exercise of judicial power in this sense.
A power incidental to
the exercise of a judicial power is not a judicial power
and such power may be vested in the Executive.
The power of nomination exercised by the Chief Justice under section 51 of the
Courts Ordinance (Cap. 6) is not an exercise of judicial
power. The Chief
Justice does not have more judicial power than any of the other Judges of the
Supreme Court. He is only primus
inter pares.
In constitutions such as those of the United States and the Commonwealth of
Australia, where there is a rigid separation of powers,
the union of judicial
and non-judicial powers is not legitimate-vide Attorney-General of Australia v.
The Queen (1957) Appeal Cases
288. (The Boiler-makers' Case.) The so-called
Holmes test and the method of historical approach have been employed by the
courts
of these countries to justify the union of judicial powers with
non-judicial powers which are incidental to the exercise of judicial
powers-vide
Prentis v. The Atlantic Coastline Co. (1908) 211, U. S. 210 and Queen Victoria
Memorial Hospital v. Thornton (1953)
87 C. L. R. 144 and The Queen v. Davidson
(1954) 90 C. L. R. 353 ; but in these cases it should be noted that the
non-judicial
nature of such incidental powers has always been recognised. These
non-judicial powers, although incidental to the exercise of judicial
power,
could therefore be validly vested in either the legislature or the executive.
Sinhala is an Official Language in the sense that its use is now authorised. The
absence of any sanction in the Official Language
Act, No. 33 of 1956, indicates
that it was not intended to penalise the failure to use such language. The Act
must be construed
in such a manner as to avoid mischievous consequences. The
expression " before the expiry of the 31st day of December, 1960
" is a counsel
of perfection, vide The Queen v. Justices of County of London and London County
Council (1893) 2 Q. B. 478.
The operative words are " until the necessary change
is effected "and no such change has so far been effected.
It is conceded by the defendants that English is the language of the courts.
That means that English is not only the language in
which the court speaks but
also the language in which it must be spoken to. The direction and the
nomination are communications
to the court and must, therefore, be in English.
A statute cannot be disregarded merely because it may appear to a court to
offend against the principles of natural justice. What
the legislature in its
wisdom decrees must be obeyed by all, even by Judges.
G. G. Ponnambalam, Q. G., in reply.-The Attorney-General based his submissions
mainly on the basis that there was no separation
of powers in Ceylon. A true
appreciation of what is meant by the separation of powers requires a knowledge
of the background on
which the entire doctrine was based. From the time of
Blackstone onwards what is emphasised as objectionable is not an overlapping
of
functions in the
331
periphery of the different
spheres of government, but the concentration of the powers of one body in
another. A complete separation
of powers even if theoretically possible would
bring government to an end. What is necessary is the prevention of tyranny. The
doctrine has received its main application in the securing of the in dependence
of the courts_ Constitutional Law of Great Britain
and The Commonwealth 2nd
edit, p. 15 by Hood Phillips ; Blackstone's Commentaries by Samuel Warren p.
241. The Attorney-General
has misdirected himself into thinking that there was
no separation of powers in countries mainly influenced by the British
Constitution
just because there was a certain amount of overlapping in otherwise
clearly discernible spheres of governmental functions. Even
in America it was
found impossible to adhere to a strict separation of powers. A significant
feature of the Constitutions of America,
England and Ceylon was the practice of
committees of the legislature conducting inquiries-hearing evidence etc. This is
to enable
them to perform the legislative function effectively and it was
therefore an implied power of the legislature. See Mac-Grain v.
Daugherty at p.
306 of " Leading Constitutional Decisions " by Robert E. Cushman, 10th edition ;
Jennkigs: Law and the
Constitution, p. 25, and Appendix, p. 281.
There were the formal and material doctrines of the separation of powers. Under
the former a function is considered to be judicial
because it is exercised by a
judge. The Attorney-General could not point to a single authority under a
Constitution in a non-totalitarian
country wherein a member of the executive was
considered an appropriate or competent authority to constitute a bench.
Nomination is not an administrative act, as the Attorney-General submitted, but
a judicial function. Definitions are difficult,
but something that has become
historically attached to judges as their proper function becomes a judicial
function. Nomination
has become attached to the function of judges collectively
or otherwise and to remove it from the ambit of the purview of the judges
would
be to interfere with the independence of the judges and a violation of the
Constitution. The constitution of the Court is
part and parcel of the judicial
function.
The absence of the term " vesting " as regards legislative and judicial power in
Ceylon is understandable. Such a term
would be necessary only when written
Constitutions are promulgated for new political entities which did not exist
previously. Prior
to the Constitution, the Legislature and the Supreme Court had
existed in Ceylon for several years. [Counsel examined the Constitutions
of
America, Australia, Canada and Ceylon as regards the vesting of the legislative,
executive and judicial powers.]
In regard to the Attorney-General's explanation of the judicial function and
judicial power, the judicial power of the State is
an enormous composite of
powers including all except executive and legislative power. The whole of the
judicial power becomes indefinable
but it is vested in
332
and distributed through the
judiciary. There is a distinction between judicial power of the State and
judicial power of the judges,
and between judicial power in a unitary State and
a federal State. In a qualitative analysis of judicial power, the judicial power
of the courts is equal to the judicial power of the judges plus something else.
See Attorney-General of Gambia Case (1961) 2 All
E. R. 504 ; 60 C. L. W. 71.
Judges exercise judicial power not only when they hear disputes between parties
but also when exercising those powers properly appurtenant
to the functions of a
judge. The constitution of a Court is part and parcel of the judicial function.
In Ceylon, the judiciary
and its functions and powers and independence had been
well established. As such those who framed the Constitution may have confined
themselves, in dealing with the judiciary, to the three pillars of the temple of
justice which establish irrevocably the total
independence of the judiciary. The
Constitution of Ceylon like the India Independence Act was a skeletal Act. See
(1950) A. I.
R. (Allahabad) 11 at p. 14. [In reply to the Court, "there isn't a
more truncated, more incomplete and mutilated Constitution
than the Constitution
of Ceylon ."]
There is no definition of judicial power which is exhaustive. See however:-
(1) K. v. Davison 90 Com. L. R. 368 and the commentary of Prof. Sawyer on the
case at p. 342 in 1954 Australian Law Journal, Vol.
28.
(2) The Bolla Case (1944) Vol. 69 Com. L. R. 185 at 199.
(3) (1929) Vol. 42 Com. L. B. 515.
(4) 211 V. S. 229.
One test to decide whether an Act involves a judicial function is to find out
what and where the particular function was deposited
when the Constitution was
passed. In the present case in which of the three limbs had the power of
nomination been vested in the
judiciary.
(5) Queen Victoria Memorial Hospital v. Thornton (1953) 87 Com. L. R. 144.
The definition of judicial power as " the power vested in the courts to
administer justice according to law " in 211 V.
8. 122 is an admirable
definition.
The power of making procedural rules is an extreme example of incidental
judicial power. According to Dean Pound, it is the function
of the Courts to
regulate proceedings.
Whatever leads to the final determination of disputes is part of the judicial
process and the constitution of the court is part
of the judicial process.
333
But for the Act No. 1 of 1962,
the Minister's attempt to nominate the Judges would have been a blatant case of
contempt of court.
See " Democratic Government and Politics " by Prof. J. A.
Corry 2nd Edit, p. 245 (for an explanation of what a court is).
Counsel cited further cases on the nature of judicial power :-
(1) The Shell Co. of Australia Ltd. v. Federal Commissioner of Taxation 1931 A.
C. 275 at 297.
(a court has to be vested with the judicial power of the State. This cannot be
said, for example, of the Board of Review on Income
Tax which is therefore not a
Court).
(2) Attorney General for Australia v. Begina (The Boiler makers Case) (1957) 2
All E. R. at 56.
(Difference between judicial powers and powers ancillary to judicial powers
examined.)
(3) Attorney General for Ontario v. Attorney General for Canada, 1925 A. C. 750,
1925 L. J. (P. C.) 132.
(To assign judges to a particular court means to appoint. By nomination in the
instant case, the Minister appoints judges to a particular
case and thereby
tampers with the judicial power of the State vested in the Supreme Court.)
Rex v. Long. 1923 S. A. L. R. 69.
(What constitutes a Court.)
King Emperor v. Sarma 1945 Vol. 1-All E. R. 203.
Though a particular act may in isolation look like an administrative power, yet
by association with the judicial power it becomes
part of judicial power.
Queen Victoria Memorial Hospital v. Thornton 87 Com. L. R. 144 at 151.
It is not possible to isolate nomination in this case from the whole complex of
judicial process. The nomination of the Judges by
the Minister was an
interference by the executive with what is fundamentally part of judicial power.
E. G. Wikramanayake, Q. C., in reply.-The Constitution provides for what might
be called the " autonomy " of the Supreme
Court. The Constitution is a skeletal
one which has taken the institutions as they existed at the time the
Constitution was framed.
The Supreme Court is described not in the Constitution
but in the Courts Ordinance. That is why certain sections of the Courts
Ordinance can only be amended by a two-thirds majority-the test being anything
which affects the independence of the judiciary and
the continuity of the
Supreme Court dealt with in Section 52 of the Constitution Order in Council.
Section 6 of the Courts Ordinance
is such a section.
334
The autonomy of the Supreme Court
means that in relation to matters necessary for its functioning it must regulate
itself. It is
essential that it should be kept free from any kind of outside
interference amounting to trespass on the independence of the judiciary.
When
the autonomy of the Supreme Court which regulates itself is interfered with by a
person who has a personal interest in the
matter or otherwise, that is an
interference with the independence of the judiciary. When a Minister, whether he
is interested
or not in a particular case, presumes to select judges whom he
likes the autonomy ceases and the independence is put in doubt.
The history of this country has shown that the judges of the Supreme Court have
been and are independent. It is the common knowledge
of those who practise in
the courts to hear a litigant say that he wishes such and such a judge would
hear a case or not hear it,
depending on what he rightly or wrongly guesses
would be the judge's reaction. For a Minister therefore, in a case like this, to
pick and choose judges would tend to shake the confidence one should have in the
judges of the Supreme Court. Justice must not
only be done but must also seem to
be done.
In interpreting a Constitution so truncated as ours one ought also to look into
the minds of the Soulbury commissioners who framed
it. Their * report shows that
they sought to prevent, in every way, the interference with the independence of
the judiciary.
As regards the direction having to be in Sinhala, the Official Language Act of
1956 leaves no doubt as to the legislature's intention.
Even the proviso in
section 2 which makes certain concessions for the transitory period uses the
terms " immediately ",
" as early as possible " and the final and most important
phrase " before the expiry of the thirty-first day of December,
1960." All this
language and these phrases and the definite date cannot be dismissed as mere "
counsel of perfection
". All the words in a statute must be given effect to. The
legislature is deemed not to waste its words or to Say anything
in vain. See
Quebec Railway, Light, Heat and Power Co. Ltd. v. Vandry A. I. R. 1920 P. C. 181
at 186 ; Baroda Kanta v. Shaik Maijuddi
A. I. R. 1925 Cal. ] at p. 3 ; The Queen
v. The Bishop of Oxford (1879) 4 Q. B. D. 245 at 261 ; Regina v. The Justices of
the County
of London and London County Council 69 L. T. 682 (distinguished).
It is no argument to say that if the courts hold that all official acts not in
Sinhala are void, it would lead to serious consequences
and that the legislature
must not be held to intend absurd results. There is nothing absurd about having
official acts in Sinhala.
If the precise words of " statute are plain and
unambiguous, they must be construed in the ordinary sense even though it leads
to an absurdity. It is only when there is real doubt and two interpretations are
possible without straining the language, that
the more reasonable and sensible
interpretation would be preferred. We cannot disregard what appears to be the
plain meaning of
the English language even if in a particular case it does
appear, to
335
produce an inequitable result. "
Where the language is explicit, its consequences are for Parliament, and not for
the Courts,
to consider. In such a case the suffering citizen must appeal for
relief to the law giver and not to the lawyer."-Craies :
" Statute Law " 5th
ed., pp. 82, 85.
A Minister therefore must, by the Official Language Act, use Sinhala in all his
communications after 31st December, 1960. The direction
and the nomination bad
to be communicated in writing. They could not have been done orally, and they
had to be in the official
language. He could send an English translation also,
but that is a different matter. The direction and nomination therefore are
invalid and have no existence in law.
H. W. Jayewardene, Q. C., in reply.-
Sec. 9 is an attempt by the legislature to make an inroad into that part of the
Constitution which provides for the independence
of the judiciary, namely Sec.
52 of the Order-in-Council. See Sections 52 and 91 of Order-in -Council. The
independence of the
Judges is preserved in England by the Act of Settlement. The
Russian Constitution declares the independence of the Judges by Act
112 of the
Constitution. See Vol. 3 Peasley: Constitutions of Nations p. 497. This
legislation renders sec. 52 meaningless and
inoperative. Even legislation to
amend the Courts Ordinance by doing away with the Chief Justice, Puisne Judges,
Commissioner of
Assize and the Supreme Court cannot be passed as it would be
repugnant to Sec. 52 of the Constitution. This can only be done by
amending the
Constitution. See : Marbury v. Madison 2 U. 8. (S. C. R.) 138; Cooper v.
Commissioner of Income Tax 4 Comm. Rep. 1324
; Kodakan Pillai v. Mudanayalce 54
N. L. R. at 438. The appointment under Sec. 52 by the Governor-General secures
the independence
of the Judges. Nothing can come in between the appointment of
the judge and the time he delivers his judgment. His sole source of
authority is
the appointment. The effect of Sec. 9 is that it creates an obstacle between the
appointment and the final judgment:
namely, in the nomination. For without the
nomination, the Judges in spite of their appointment under Sec. 52 cannot hear
this
case. Thus, the nomination under Sec. 9 is the appointment and is contrary
to the Constitution.
Nomination means in effect " appointment ". The nomination is the appointment of
the Judges to hear this case. It has
no special significance. The legislature is
attempting to do indirectly what it cannot do directly. This is so even in its
attempt
to constitute this court as the Supreme Court. This is a mockery of the
Constitution. Its effect is to derogate from the power of
the Supreme Court. See
: Young v. Bristol European Airways Co. Ltd. 1944 (2) A. E. R. page 293.
The question of nomination by the Chief Justice and the Minister.
When the Minister makes a nomination it is an administrative act. He is
answerable to Parliament. If so, Judges can be discussed
in Parliament. The
independence of the judiciary will cease to exist,
336
That is why the Order-in-Council
states that Judges will be appointed by the Governor-General, whose acts cannot
be questioned in
Parliament. See : Attorney General, Ontario v. Attorney
General, Canada 1925 L. J. Privy Council p. 132 ; Schrier v. Bernstein &
Labour
Std-1962 33 Dominion L. R. page 305.
If the power of selecting Judges is left to the Chief Justice and the other
Judges no one can question their acts. It is a matter
within their sole
discretion. Further, when a Bench is constituted by the Chief Justice, the other
Judges are not deprived of their
rights to hear a case. Each is entitled to hear
a case though for convenience they make their own arrangements. Assuming that
this
power of selecting Judges is administrative, it is one which is vested in
the Judges as a body
.
The power to appoint carries with it the power to revoke ; this is implicit in
the power to appoint. The Attorney-General contends
that Sec. 18 of the
Interpretation Ordinance does not apply. The word " order " in the Section would
apply to a nomination
which is in effect an order by the Minister.
As to meaning of " court" see Halsbury Vol. 9 Simonds Edn. page 342-Sec. 809.
As to what is meant by constituting a court-See Rex v. Long 1923 A. D.
Separation of Powers. The Attorney-General contends that there is no separation
of powers in Ceylon. One does not find the separation
of powers in any
particular form in the Constitutions of various countries-the difference lies in
the degree of the separation
of powers. For instance, in the British
Constitution the separation between the executive and the legislature is not as
marked
as the separation of the judiciary on the one hand and the executive and
the legislature on the other. In America, the separation
between the executive
and the legislature is more marked.
In every Constitution that has followed the British pattern the judiciary is
always distinct from the executive and the legislature.
See : Halsbury Vol. 7
page 287 (191); Law and Orders-Alien 2nd Edn page 1; Committee on Ministers'
Powers (1930) Report (that judiciary
is distinct).
Even in America where the separation of powers is more marked than in any other
constitution, in practice it is not applied with
all its rigour- Hampton & Co.
Ltd. v. United States 276 U. S. Reports 394.
In Ceylon there is a clear separation of powers. Apart from authorities already
cited, see Provincial Administration Report 1954-Cl.
4. For my purposes it is
sufficient to argue that the judicial power is vested in a separate and distinct
department consisting
of the Supreme Court and the minor Judiciary.
For separation of powers in Canada, see Labour Relations Board off Sasketchwan
v. John East Iron Works 1949 A. C. 134.
337
For separation of powers in
Australia, see the Boilermakers Case 1957 (2) A. E. R. 45 (P. C.).
In regard to the nature of the power of constituting a Bench : is it an incident
to the judicial power and therefore a part of the
judicial power or is it a
purely administrative act ? Judicial power itself is the power to determine the
existence or non-existence
of pre-existing legal rights. It enforces
pre-existing legal rights as between the parties to the dispute. This is the
judicial
power of a court. In the case of a Labour Tribunal or similar
Tribunals, it determines the future terms of employment between master
and
servant. It creates new terms. It does not seek to enforce pre-existing rights
which is the judicial power pure and simple-Huddart
Parker & Co. Ltd. v.
Moorehead-8 Comm. L. Rep. 330, per Griffiths C. J. Now in order to determine
whether a particular function
is part of the judicial power or not one has to
apply certain tests, as already submitted. One of the tests is that you must
look
at the ultimate end to be achieved ; then all those acts which are
incidental to the achievement of the ultimate end belongs to
that function of
Government, executive, legislative or judicial, as the case may be. If the
ultimate end is the judicial function,
namely, the enforcement of pre-existing
rights between the parties, then all those ancillary functions that lead up to
the final
judgment are part and parcel of the judicial function and come under
the category of judicial power. On the other hand, if the final
decision would
lead up to a purely administrative decision, all those earlier acts belong to
the category of executive power. This
is what may be termed as the " Holmes test
" or doctrine. See : Rex v. Damson 90 Comm. L. R. 353 (366) (367) ; Reta Co.
v.
The Commonwealth 69 Comm. L. R. 185 (199) (203) ; The King v. Federal Court of
Bankruptcy Exp. Lowerstein 59 Comm. L. R. 556
(581) ; Alexander's Case 25 Comm.
L. R. 434 (447) (468); Rex v. Kirby-Boikrmakers Case 1957 (2) A. E. R. 45.
It is submitted that the power to appoint a Judge or to nominate a Judge is a
part of the judicial power enacted in Sec. 52 of the
Order-in.-Council and is a
part of the judicial power since it must necessarily lead to a final decision in
this case. It cannot
be taken out of the judicial power.
Further, every court based on the British system has got a residue of power by
which it can do things which are necessary to enable
the courts to arrive at a
final decision. See Hukum Chand Boyd v. Kamal-anand Singh 33 I. L. R. 927 (930).
Another test is the historical test-in the interpretation of constitutions, one
looks at the date on which the Constitution came
into force. If certain acts
were done as part and parcel of one particular organ of the State at that date,
then you regard that
type of function as belonging to that organ of State. It
may be an administrative act, but if it was traditionally done as part
and
parcel of the judicial function of the State, then it should be regarded as
belonging to that organ of State. This
338
approach is also called the Dean
Pound doctrine, being first enunciated by Dean Roscoe Pound. For the " Holmes
Test "
see judgment of Justice Holmes in Prentis v. Atlantic Coast Line Co. 211
U. S. R. 210. The "Historical Test" was applied
in Labour Relations Board of
Sasketchwan v. John East Iron Works 1949 A. C. 134 (149-153).
At the time the Constitution was promulgated in 1946 the function of
constituting a Bench or nomination of Judges resided in the
Judiciary- it was a
judicial function. It could never have been intended that when the Queen gave
this country its constitution
she would have intended that the legislature could
take out this function of the court which is necessary for the purpose of giving
a final decision and rest it in the executive. See Bex v. Kirby-Boiler-makers
Case 1957 (2) A. E. R. 45 (P. C.).
In regard to the responsibility of the Minister to Parliament, see Standing
Orders of the House of Representatives, Order 31, 36
(7), 139. Erskine
May-Parliamentary Procedure 336 (337) (374) (375) (298). Questions reflecting on
the conduct or character of
a person in official capacity cannot be asked in
Parliament but a question directed at the Minister with regard to the reason or
circumstances for making a certain appointment or nomination does not refer to
the character or conduct of the Minister at all.
See also : Halsbury Vol. 28 p.
300 Section 446 ; Order-in-Council Section 46 (1) ; Halsbury Vol. 7 p. 233 ; 359
; Parliament -Jennings
2nd Edn. p. 99 ; Government and Parliament-Sir Herbert
Morrison p. 256.
The other question is the application of the principle that justice must not
only be done but should manifestly and undoubtedly
be seen to be done. See : The
King v. Edwin 48 N. L. R. 211; Sergeant v. Dale 1877 (2) Q. B. 558 ; 37 L. T.
156.
However much one might be assured that Judges are independent there is the fear
lurking in the minds of the defendants that for
some reason or other unknown to
themselves and best known to the Minister and the Government, the Government has
vested itself
with the power to select Judges. This fact alone would indicate
that the independence of the Supreme Court is sought to be attacked.
The
question is whether the defendants should so feel since for some reason or other
the normal practice of the constitution of
the Court has not been followed.
Further, there are facts which indicate that the Minister himself participated
in the investigations. If so, a party would be Judge
in his own cause by
selecting Judges of his own choice. See Eckles v. Mersey Dock and Harbour
Board-71 L. T. 308 (310. 311) ; 1894
(2) Q. B. D. 667. Later cases apply the
test of the reasonable man : whether in a litigation between A and B, A has the
power of
selecting the Judges while B has no say in the matter. A reasonable man
should say that there is bias as a result of such power
being vested in A. This
is the position in this case. This power vested in the Minister affects the
entire independence and integrity
of the Court and is likely to create a
suspicion in the minds of the public.
339
[T. S. FERNANDO, J.-And more so
in the minds of the defendants.]
See: Rex. v. Sussex Trustees-1924 (1) Q. B. D. 256 (258) ; Rex. v. Cambourne
Justices-1954 (2) A. E. R. 852 (855). If the effect
of the legislation and the
nomination is that justice does not appear to be done then it is regarded as a
disqualification of the
particular judges because it prevents the judges from
acting judicially, i.e., the Supreme Court cannot act judicially and that
is a
negation of the only purpose for which the Supreme Court has been created. If
the legislation is such that it makes the Supreme
Court unable to act, then the
legislation to that extent is bad. " Judicial power " in itself implies the
right to exercise
the power, unbiassed, i.e., without even a likelihood of bias
existing.
As to " substantive motion " and Questions in Parliament, see Introduction to
House of Commons by Lord Campion ps. 110
(117) (170). May-Parliamentary
Procedure p. 336 item 6, p. 201 disqualification of membership ; Ministerial
responsibility. Questions
in the House- Patrick Howarth p. 112, 119. Standing
Orders of the Senate-re responsibility of Minister. Also : Terrel v. The
Colonial
Secretary 1953 (2) A. E. R. 419 at 494.
A. H. C. de Silva, Q. C., in reply.-The Supreme Court is a separate entity. It
would appear from section 52 of the Constitution
Order in Council (i) that there
is one Supreme Court, and (ii) that the provisions of this section clearly
indicate that there
ought to be no interference by any outsider with the Supreme
Court. These provisions seem to ensure that the Supreme Court is an
autonomous
unit. Its functions have to be regulated by itself. The Supreme Court can
function only through its members. It is clear
from the Courts Ordinance that,
if there is one person who has a right to constitute a Bench of the Supreme
Court or to nominate
the Judges,
it is the Chief Justice. Generally the Bench is constituted by arrangement among
the Judges themselves.
Nomination is a function of the Supreme Court. Where the Constitution intends
that nomination should be the function of the Court
and that the Court should be
an autonomous body, then, if nomination is given to an outsider, the Court is
not constituted in the
way the Constitution requires it to be constituted. The
Court so constituted is not the Supreme Court.
In regard to the question of bias, not only actual bias but also the likelihood
of bias must be considered. See Cattle v. Cattle
(1939) 2 All E. R. 535 at 540 ;
Rex v. Essex Justices (1927 ) 2 K. B. 475 ; Rode v. Bawa 1 N. L. R. 373 ; King
v. Podisingho 16
N. L. R. 16 at 17 ; Dingiri Mahatmaya v. Mudiyanse 24 N. L. R.
377 ; King v. Caldera 11 C. L. W. 1 ; Kandaswamy v. Subramaniam 63
N. L. R. 574.
Cur. adv. vult.
ORDER
October 3, 1962.
On the twenty-third of June, 1962, the Minister of Justice, purporting to act
under section 440A of the Criminal Procedure Code
as amended by section 4 of the
Criminal Law (Special Provisions) Act, No. 1 of 1962, by filing document " A "1
in the
Registry of this Court, informed the Court that he directs that the trial
of twenty-four persons named therein in respect of three
specified offences all
falling under Chapter VI of the Penal Code be held before the Supreme Court at
Bar by three Judges without
a jury. Later that same day the Attorney-General
exhibited to the Court an Information-document "B" 2-informing the Court
that
the same twenty-four persons had committed the offences which had been specified
therein and seeking the issue by the Court
of lawful process against the said
persons. Thereafter, the Minister of Justice, again on the same day, purporting
to act under
section 9 of the Criminal Law (Special Provisions) Act, No. 1 of
1962, filed in the Court document " C " 3 nominating
us as the three Judges who
shall preside over the trial of the persons referred to above to be held in
pursuance of the direction
contained in document " A ".
Acting upon the said direction and nomination we ordered summons to issue on the
twenty-four persons named in the afore-mentioned
documents. On 30th July 1962
all the defendants being present and represented by counsel, we called upon the
defendants to make
their pleas in answer to the charges contained in the
Information. Counsel then raised certain preliminary objections to the trial
proceeding before us, and it becomes necessary to set out hereunder the
objections as formulated by counsel.
Mr. Ponnambalam who appeared for seventeen of the twenty-four defendants framed
his objections in the following form :-
" This Court cannot take cognizance of the Information laid against the
defendants, and it has no jurisdiction to try the case
because it is not a
validly or properly or lawfully constituted court; nor is it competent to hold a
Trial-at-Bar ".
Mr. Wikramanayake who appeared for two of the other seven defendants objected on
the ground that " the nomination of judges
is contrary to law and that the Court
has no jurisdiction ". He raised an additional objection which was split up by
him as
follows :-" (a)
The direction by the Minister is null and void ; and (b) The nomination of the
Judges by the Minister is null and void ".
1 See page 361 (infra).
2 See page 363 (infra).
3 See page 364 (infra).
341
Counsel for the remaining five
defendants, except counsel for the 19th defendant, did not raise any separate
objections themselves
but indicated that they would be supporting the objection
raised by Mr. Ponnambalam. Counsel for the 19th defendant informed Court
that he
would formulate his objections as follows :-
" (a) The constitution of this court is contrary to law, and therefore the court
has no jurisdiction to try the case ;
(b) In any event, the direction under section 440A of the Criminal Procedure
Code and the nomination under section 9 of the Criminal
Law (Special Provisions)
Act are bad in law. "
He further moved for summons on certain persons whose testimony, he stated,
would be required to establish an allegation of mala
fides on the part of the
Minister of Justice in issuing the direction and making the nomination of Judges
proof of which was necessary
to maintain his objections. We intimated to counsel
for the 19th defendant that we would consider the question of ordering summons
to issue if he could satisfy us that the evidence he contemplated obtaining was
relevant and admissible.
Of these several objections, it seems to us that the additional objection raised
by Mr. Wikramanayake requires first consideration
as the sustaining of that
objection would have the result of terminating the present proceedings. The
substance of this additional
objection that (a) the direction and (6) the
nomination made by the Minister are null and void was based on an interpretation
he
sought to place on section 2 of the Official Language Act, No. 33 of 1956,
read with the Language of the Courts Act, No. 3 of 1961.
He contended that, as a
result of the enactment of the Official Language Act, the Sinhala language has
on and after the 1st day
of January 1961 become the only official language of
Ceylon, and that the direction and nomination made by the Minister, being
official acts of an official, were required to be done in the Sinhala language.
The Language of the Courts Act is designed to provide
for the use of the Sinhala
language for recording the proceedings and for pleadings filed of record. No
Order as contemplated in
section 2 of that Act has hitherto been made in respect
of any of the Courts and English still continues as the language of the
Courts.
The direction and nomination of the Judges by the Minister, not being acts
constituting proceedings in court nor forming
pleadings filed of record, so Mr.
Wikramanayake argued, could only have been validly done in the Sinhala language.
While he conceded
that English was still the language of the Courts and,
therefore, that the communication to Court of the direction and the nomination
could have been validly done in English, he contended that communication can
take place only after the performance of the acts
and that there is an admission
that the direction and nomination had been effected only in the English
language.
342
Act No. 33 of 1956 is intituled "
An Act to prescribe the Sinhala language as the one official language of Ceylon
and to enable
certain transitory provisions to be made. " Section 2 of the Act
enacts :-
" The Sinhala language shall be the one official language of Ceylon :
Provided that where the Minister considers it impracticable to commence the use
of only the Sinhala language for any official purpose
immediately on the coming
into force of this Act, the language or languages hitherto used for that purpose
may be continued to
be so used until the necessary change is effected as early
as possible before the expiry of the thirty-first day of December, 1960,
and, if
such change cannot be effected by administrative order, regulations may be made
under this Act to effect such change."
This Act became law on 7th July 1956, and on that same day the appropriate
Minister published a notification in the Gazette-(see
Government Gazette
Extraordinary, No. 10,949 of 7th July 1956)-in the following terms :-
" By virtue of the powers vested in me by the proviso to section 2 of the
Official Language Act No. 33 of 1956,1, Solomon West
Ridgeway Dias Bandaranaike,
Prime Minister, being the Minister in charge of the subject of the said Act, do
hereby declare that
where any language or languages has or have hitherto been
used for any official purpose, such language or languages may be continued
to be
so used until the necessary change is effected in accordance with the provisions
of the aforesaid section. "
It is common ground that no regulations have been made as permitted by this Act,
and Mr. Wikramanayake contended that, as the time
limit permitted by the proviso
has now passed, the proviso itself has now ceased to have any force. He argued
that the transitory
provisions themselves must cease on the expiry of the
thirty-first day of December 1960 and the use of the language prescribed by
section 2 as the one official language which meant the only official language
must prevail over the use of any other language.
It may be mentioned here that Mr. Wikramanayake did not contend that section 2
warranted the proposition that Sinhala became on
and after 1st January 1961 the
only language in which the acts of all the functions of Government in this
country could have been
or can be performed. He was content for the purpose of
this case to argue that it was the intention of the legislature to confine
the
operation of section 2 to official acts in the sense of acts of officials as
distinguished from acts of the legislature or
acts done in court proceedings.
The learned Attorney-General himself submitted that the expression " official "
in section
2 signified no more than authorised for official use, but he relied
on the absence of any provision in Act No. 33 of 1956 in respect
of the *
consequences of a failure to use the Sinhala language as the only official
343
language as indicative of the
intention of the legislature deliberately to refrain from providing any sanction
in the event of such
a failure. He submitted, further, that the legislature
recognised that the change could not be effected immediately and that a period
of transition was necessary, but that no limit was placed by the Act on the
duration of the period of transition. He was compelled
to advance the argument
that the effect of the proviso was to retain the period of transition until a
change is in fact effected.
Relying upon certain observations contained in the judgment of Bowen L. J. in
The Queen v. Justices of County of London and London
County Council1[1 L.
R. (1893) 2 Q. B. at 491.], he submitted that the expression "Before the
expiry of the thirty-first day of December 1960 " is nothing more than a
counsel
of perfection involving no consequences if the counsel is not heeded, and that
the proviso in effect permitted the Minister
to ensure that the language or
languages used up to the date of the enactment of Act No. 33 of 1956 may be
continued to be so used
until the necessary change is effected, although the
intention and direction of the legislature was that it be effected as early
as
possible. He argued that the Act must be read, as all enactments are, subject to
their not being made absurd by matters which
never could have been within the
calculation or consideration of the legislature, and that if two possible
interpretations can
be placed of which one is likely to bring about a
mischievous result while the other is conducive to peace, order and good
government,
the court must lean towards the latter interpretation.
It appears to us unnecessary to pronounce on the merits of these respective
contentions. Even if one were to assume the correctness
of Mr. Wikramanayake's
contention that on and after 1st January 1961 official acts of officials could
have been or can be performed
only in the Sinhala language, as English is still
admittedly the language of the Court, the communication by the Minister to the
Court by documents made out in English of the direction and nomination of Judges
by him is, in our opinion, a sufficient compliance
with the existing law. We are
therefore unable to sustain the additional objection and, accordingly, overrule
it.
We can now turn our attention to the main objections which have been already
specified. Although stated in varying forms by the
several counsel for the
defendants they raise in substance the un constitutionality of certain
provisions of the Criminal Law (Special
Provisions) Act, and are designed to
obtain from this Court a declaration that Sections 8 and 9 of that Act which
relate to the
powers of the Minister of Justice to issue respectively a
direction that persons accused of certain offences be tried before the
Supreme
Court at Bar by three Judges without a jury and to nominate those three Judges
are ultra vires the powers of the Legislature
as granted by the Ceylon
(Constitution) Order in Council, 1946. It will be convenient to deal with the
alleged invalidity of the
power to issue
344
a direction separately from the
alleged invalidity of the power to nominate as the relevant considerations
applicable appear to
us to differ materially in the two cases.
First, as to the direction. Section 8 of the Criminal Law (Special Provisions)
Act provides as follows :-
" Any direction issued by the Minister of Justice under Section 440 A of the
Criminal Procedure Code shall be final and conclusive,
and shall not be called
in question in any Court, whether by way of Writ or otherwise. "
This objection to the power of the Minister conferred on him by Section 440A of
the Criminal Procedure Code (as now amended by Section
4 of Act No. 1 of 1962)
to direct that these defendants be tried before the Supreme Court at Bar by
three Judges, although outlined
by counsel for all the defendants, was finally
persisted in only by Mr. Ponnambalam. He pointed to the history of Section 440A,
and explained that while the Code always contained provision-Section 216-whereby
the Chief Justice may in his discretion order
that any trial before the Supreme
Court be a Trial at Bar by jury before three Judges, it was only after the
religious riots of
1915 that the Legislature introduced provision for Trial at
Bar without a jury, and that until the introduction of the 1946 Constitution
the
power to direct such a Trial at Bar rested with the Governor. The reason for the
introduction into our law of the system of
trial without jury in cases which up
to that time had been triable by jury was understandable as the chances of
ensuring an unbiassed
jury at times when public feeling is profoundly disturbed,
whatever be the cause, are considerably lessened. Mr. Ponnambalam was
inclined
to question whether the Governor himself could have been granted that power, but
it seems to us quite unnecessary to go
into that question here. He certainly
argued that the substitution of the Minister of Justice in place of the Governor
in 1947
was not competent. This argument is, in our opinion, sufficiently
repulsed by a reference to Section 88 of the Constitution Order
in Council,
1946, itself, which embodied the following transitory provisions relating to the
modification of existing laws :-
88.-"(1)" The Governor may by Proclamation at any time before
the first meeting of the House of Representatives under
this Order make such
provision as appears to him necessary or expedient, in consequence of the
provisions of this Order, for modifying,
adding to, or adapting the provisions
of any written law which refer in whatever terms to the Governor, the State
Council, the
Board of Ministers, the Officers of State, a Minister, an Executive
Committee or a public officer, or otherwise for bringing the
provisions of any
written law into accord with the provisions of this Order or for giving effect
thereto. -(2) Every Proclamation
under " subsection (1) of this section shall
have the force of law and may be amended, added to or revoked by further
Proclamation
within the period specified in that subsection."
345
Acting under Section 88 the
Governor by Proclamation of 18th September 1947 published in Government Gazette
Extraordinary No. 9773
of September 24, 1947 directed the substitution for the
word " Governor " in Section 440A of the words " Minister
of Justice " . It
would be wholly unprofitable to attempt to assess, as Mr. Ponnambalam invited us
to do, whether the Minister
of Justice could have been so substituted for the
Governor because the paramount law, the Constitution itself, empowered the
Governor
to modify, add or adapt the provisions of any law " as appears to him
necessary or expedient. " In view of the consistent
interpretation language such
as this has received in recent times in Courts of the highest authority, it is
now too late in the
day to argue that, when the Legislature confers power on an
individual by employing expressions such as " as appear to (the
designated
individual) necessary " or " as (the designated individual) considers sufficient
", that is not enough
warrant to constitute such designated individual the sole
judge of what is necessary or sufficient. See, for instance, the Privy
Council
decision in Ross-Clunis v. Papadopoullos 1. Nor do we think that by itself the
fact that we have assembled to hear this
case in pursuance of the direction made
by the Minister has the effect of constituting us a special Court or Tribunal
and not the
Supreme Court. We need only refer to the admittedly sole previous
instance after the introduction of the 1946 Constitution of a
Trial at Bar held
before the Supreme Court by three Judges without a jury, viz. The Queen v. Theja
Gunawardene 2, where the Court
stated that " the circumstance that the Minister
purported to direct that an Information shall be tried before the Supreme
Court
at Bar by three judges without a jury does not, in our opinion, have the effect
that a Bench of three judges which assembles
to hear the Information ceases to
be the Supreme Court and becomes a different tribunal created by the Minister. "
Another argument for invalidating Section 8 (an argument which extended in
respect of Section 9 as well) advanced by Mr. Ponnambalam
was based on the
contention that the Legislature of this country not-being sovereign it was
competent to a Court to examine legislation
to decide whether it was actually
for the peace, order, and good government of the country, and, if it was not, to
pronounce it
void. Section 29 (1) of the Order in Council provides that "
subject to the provisions of this Order, Parliament shall have
the power to make
laws for the peace, order, and good government of the Island. " Such a power has
been held " to authorise
the utmost discretion of enactment for the attainment
of the objects pointed to ", and a Court will not inquire whether any
particular
enactment of this character does in fact promote the peace, order or good
government of the Colony-see Chenard and Co.
v. Joachim Arissols. Mr.
Ponnambalam sought to read Section 29 (1) as a limiting clause whereas it
appears to us clearly as an
empowering clause. Cases decided in Ceylon or other
countries of the British Commonwealth at a time when the Colonial Laws Validity
Act applied
346
would be without application
today. To agree with the submission made by learned counsel would be to negative
the Sovereignty of
Parliament which in this country is now limited only in the
manner set out in the other sub-sections of Section 29. To extend the
scope of
judicial review beyond that would appear to us to place in the Courts a new
power unrecognized by the Constitution at
the expense of a power vested in
Parliament by the Constitution. We find ourselves unable to uphold any of the
arguments raised
by Mr. Ponnambalam in order to impugn Section 8 of Act No. 1 of
1962.
What we have stated above do not, however, dispose of all the objections
centering round the direction that a Trial at Bar be held
by three Judges
without a jury. Counsel for the 19th defendant has raised the objection that,
even assuming that the power conferred
on the Minister to issue a direction is
intra vires the powers of the Legislature under the Constitution or is not in
conflict
with them (since it was a power that existed even before the Order in
Council of 1946 was made by His Majesty in Council), mala
fides of the Minister
in making the particular direction in this case vitiates it.
We had intimated to learned counsel that evidence to establish the existence of
mala fides in the Minister of Justice would have
been permitted to be led only
if he could have satisfied us that such evidence was relevant and admissible.
The learned Attorney-General
has, in respect of this question, brought to our
notice a decision in an English case, undoubtedly of the highest authority,
which
appears to us to be an effective bar to our sustaining this particular
objection outlined on behalf of the 19th defendant. No attempt
was made on
behalf of the defendants to distinguish this authority in any way and it affords
a complete answer to the point raised.
We refer to the case of Smith v. East
Elloe Rural District Council,1[1i. B. (1956) A. G. 736.] where the
House of Lords was called upon to consider the interpretation to be placed on
paragraph 16 of Part IV of Schedule I of
the Acquisition of Land (Authorisation
Procedure) Act, 1946, which was in the following terms :-
16-" Subject to the provisions of the last foregoing paragraph, a compulsory
purchase order or a certificate under Part III
of this Schedule shall not,
either before or after it shall be confirmed, made or given, be questioned in
any legal proceedings
whatsoever . . . ."
The House of Lords held, by a majority, that the jurisdiction of the Court was
ousted by reason of the plain prohibition in paragraph
16. Viscount Simonds, who
was one of the judges comprising the majority,- at p. 750-expressed himself thus
:-
" My Lords, I think that anyone bred in the tradition of the law is likely to
regard with little sympathy legislative provisions
for ousting the jurisdiction
of the Court, whether in order that the subject ' may be deprived altogether of
remedy or in order
that his grievance
347
may be remitted to some other
tribunal. But it is our plain duty to give the words of an Act their proper
meaning and, for my part,
I find it quite impossible to qualify the words of the
paragraph in the manner suggested .... What is abundantly clear is that words
are used which are wide enough to cover any kind of challenge which any
aggrieved person may think fit to make. I cannot think
of any wider words. Any
addition would be mere tautology. But, it is said, let those general words be
given their full scope and
effect, yet they are not applicable to an order made
in bad faith. But, My Lords, no one can suppose that an order bears upon its
face the evidence of bad faith. It cannot be predicated of any order that it has
been made in bad faith until it has been tested
in legal proceedings, and it is
just that test that paragraph 16 bars. "
On the same point, Lord Radcliffe, another of the judges who comprised the
majority, stated-at p. 769 :-
" At one time the argument was shaped into the form of saying that an order made
in bad faith was in law a nullity and that,
consequently, all references to
compulsory purchase orders in paragraphs 15 and 16 must be treated as references
to such orders
only as had been made in good faith. But this argument is in
reality a play on the meaning of the word nullity. An order, even if
not made in
good faith, is still an act capable of legal consequences. It bears no brand of
invalidity upon its forehead. Unless
the necessary proceedings are taken at law
to establish the cause of invalidity and to get it quashed or otherwise upset,
it will
remain as effective for its ostensible purpose as the most impeccable of
orders. And that brings us back to the question that determines
this case : Has
Parliament allowed the necessary proceedings to be taken ? "
We hold that all the objections taken in respect of the direction issued by the
Minister fail, and that Section 8 of Act No. 1 of
1962 is intra vires the
Legislature.
Next, as to the nomination. Much of the argument before us was centred on an
attack on Section 9 of Act No. 1 of 1962 as being ultra
vires the Legislature's
power to make law by a simple majority. It is a novel provision of law raising
in this case an interesting
but difficult question of law.
Section 9 may conveniently be reproduced here :-
9. " Where the Minister of Justice issues a direction under Section. 440A of the
Criminal Procedure Code that the trial of
any offence shall be held before the
Supreme Court at Bar by three Judges without a jury, the three Judges shall be
nominated by
the Minister of Justice, and the Chief Justice if so nominated or,
if he is not so nominated, the most senior of the three judges
so nominated,
shall be the president of the Court.
348
The Court consisting of the three
Judges so nominated shall, for all purposes, be duly constituted, and
accordingly the constitution
of that Court, and its jurisdiction to try that
offence, shall not be called in question in any Court, whether by way of writ or
otherwise."
The decision in Smith v. East Elloe Rural District Council (supra) would become
applicable even in regard to the attempt to impugn
the nomination under Section
9 only if this section is itself intra vires the Legislature. It has not been
disputed by the Crown
that this Court has, notwithstanding the wording of
Section 9, jurisdiction to consider whether the section is ultra vires. In order
to found this attack all counsel who addressed us on behalf of the defendants
contended that the Constitution of Ceylon recognised
a separation of powers of
Government. We were referred to the Constitutions of many countries, notably
those of the United States
of America, Australia, Canada, South Africa and
India. On the other hand, the Attorney-General contended that 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 had been accustomed to that kind of separation throughout the British
occupation of this country.
In view of the fact that the Ceylon (Constitution) Order in
Council of 1946 itself recites that His Majesty's Government have reached
the
conclusion that a Constitution on the general lines proposed by the Soulbury
Commission (which also conforms in broad outline,
save as regards the Second
Chamber, with the Constitutional scheme put forward by the Ceylon Ministers
themselves) will provide
a workable basis for constitutional progress in Ceylon,
we permitted counsel on both sides to make reference to the text of parts
of the
report of the Soulbury Commission itself, a course which Their Lordships of the
Judicial Committee approved in somewhat
similar circumstances in Kodakan Pillai
v. Mudannayake 1[1 (1953) 54 N. L. R. at 438.]. Counsel for the
defendants referred us to paragraphs 395 and 396 of that Report (Ceylon-Report
of the Commission on Constitutional
Reform, Cmd. 6677, September 1945) wherein
the Commissioners state :-
395. " In making these recommendations we have fully considered the objections
usually raised by those trained in the English
tradition to the establishment of
a Ministry of Justice, on the ground that a Ministry so designated is apt to
blur-at least in
the public mind-the line of demarcation prescribed under
English practice between the Judiciary and the Executive. We realise that
Ceylon
is accustomed to the British system and that any departure from British
principles would be likely to meet with widespread
opposition. "
396. " We would therefore make it amply clear that in recommending the
establishment of a Ministry of Justice we intend no
more than , to secure that a
Minister shall be responsible for the administrative side
349
of legal business, for obtaining
from the Legislature financial provision for the administration of justice, and
for answering in
the Legislature on matters arising out of it. There can, of
course, be no question of the Minister of Justice having any power of
interference in or control over the performance of any judicial or
quasi-judicial function, or the institution or supervision of
prosecutions......"
The learned Attorney-General, on the other hand, referred us to the Epilogue to
the Report-paragraphs 408 to 410-wherein the Commissioners
state that-
" The Constitution we recommend for Ceylon reproduces in large measure the form
of the British Constitution, its usages and
conventions, and may on that account
invite the criticism so often and so legitimately levelled against attempts to
frame a government
for an Eastern people on the pattern of Western
democracy..... .It is easier to propound new constitutional devices and fresh
constructive
solutions than to foresee the difficulties and disadvantages which
they may develop. At all events, in recommending for Ceylon a
Constitution on
the British pattern, we are recommending a method of Government we know
something about, a method which is the
result of very long experience, which has
been tested by trial and error and which works, and, on the whole, works well.
Be that as it may, the majority-the politically conscious majority of the people
of Ceylon-favour a Constitution on British lines.
Such a Constitution is their
own desire, and is not being imposed on them....
But we think that Ceylon is well qualified for a Constitution framed on the
British model, and we regard our proposals as a further
stage in the evolution
of the system under which Ceylon was governed prior to 1931-an evolution to some
extent interrupted by the
experiment of the Donoughmore Constitution of that
year......
We think that it should be well within the capacity of a future Government of
Ceylon to operate a form of Constitution which does
not represent a novel and
strange creation, but is the natural evolution of a type of government with
which the Ceylonese had for
some time been familiar. "
While we have referred to the Report of the Soulbury Commission, the question
raised as to whether a separation of the three powers
or functions of Government
is embodied in our Constitution must ultimately be answered by an examination of
the provisions of the
Order in Council itself. The learned Attorney-General
pointed out that under our Constitution the Cabinet of Ministers who are all
members of the Legislature (i.e. of the Senate or the House of Representatives)
are all executive officers and direct the executive
functions of Government. The
Chief Justice and at least one other Judge of the Supreme Court are members of
the Judicial Service
Commission, a body performing executive functions. It must,
however, not be overlooked that these are functions assigned to
350
them under the paramount law, the
Constitution itself. It appears to us unnecessary to go into this question at
any length except
to say that if by a separation of powers or functions of
Government is meant a mutually exclusive separation of such powers or functions
as obtains in the American Constitution or even in the Constitution of the
Commonwealth of Australia, which was itself based on
the American Constitution,
there is no such mutually exclusive separation of governmental functions in our
Constitution. Nor on
the other hand do we have a sovereign Parliament in the
sense in which that expression is used in reference to the Parliament of
the
United Kingdom. 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.
It was strongly urged on behalf of the defence that the power of nomination
reposed by the impugned section 9 in the Minister is,
in pith and substance, a
power of appointment of Judges of the Supreme Court in contravention of the said
section 52 (1), and that
the three of us constituted neither the Supreme Court
nor a bench of Judges of the Supreme Court but merely a tribunal appointed
by
the Minister from the panel of Supreme Court Judges.
Whether or not the power of nomination granted to the Minister is intra vires
the Constitution, there is, in our opinion, no doubt
that this Court is
assembled as the Supreme Court holding a Trial at Bar in terms of Section 440A
of the Criminal Procedure Code
and not as a separate court or tribunal. We have
so assembled by virtue of a nomination made by the Minister, and if that
nomination
be ultra vires the Constitution we are agreed that this Court is not
a duly constituted panel of Supreme Court Judges to hold a
Trial at Bar as
representing the Supreme Court.
In support of the argument that this nomination is an appointment, the defence,
apart from leaning on a dictionary meaning of the
word- " appoint (a person) by
name to some office or duty "-relied on the decision of the Privy Council in
Attorney-General
for Ontario v. Attorney-General for Canada1[1 (1925) 94
L. J. (P. C.) 132-L. R. (1925) A. G. 750.]. That case related to a
conflict between the powers of the Governor-General of Canada to appoint Judges
vested in him under Section
96 of the Canadian Constitution and a certain
provision
351
in the Judicature Act of Ontario
of 1924 passed by the Legislature of the Province of Ontario which had been
empowered by Section
92 of the Dominion Constitution to make laws for the
administration of justice in the Province, including the constitution,
maintenance
and organisation of the Provincial Courts.
By the Judicature Act of 1924, the Legislature of Ontario established in lieu of
the then existing Supreme Court a Supreme Court
of Ontario consisting of 19
Judges to be appointed by the Governor-General as provided in the Constitution.
This Court was divided
into two Divisions- the Appellate Division and the High
Court Division. The rights of the existing Judges were safeguarded, but
the Act
empowered the Lieutenant-Governor of Ontario to assign some of the Supreme Court
Judges to the Appellate Division and some
to the High Court Division. He was
also authorised to designate the Presidents of the two Divisions and they were
to be called
the Chief Justice of Ontario and the Chief Justice of the High
Court Division respectively.
The powers conferred on the Lieutenant-Governor by this Judicature Act were
challenged as being ultra vires the Canadian Constitution.
Upholding the
challenge, Viscount Cave, L. C., stated in the Judicial Committee :-
" What is the effect of these provisions ? It can hardly be doubted that the
result of these was to authorise the Lieutenant-Governor
of the Province to
assign-that is to say, to appoint certain Judges of the High Court to be judges
of the Appellate Division of
the Supreme Court, and also to designate-that is to
say, to appoint certain Judges to hold the offices of Chief Justice of Ontario
and Chief Justice of the High Court Division. If that is the real effect of the
Statute, as it appears to be, there can be no doubt
that the effect of the
Statute, if valid, would be to transfer the right to appoint the two Chief
Justices and Judges of Appeal
from the Governor-General of Canada to the
Lieutenant-Governor of Ontario in Council; and if so, it must follow that the
Statute
is to that extent inconsistent with section 96 . of the Act of 1867 and
beyond the power of the Legislature of Ontario. ''
It is evident that in spite of the use of the words "assign" and "designate "the
effect of the 1924 Act was
to restrict the powers of appointment given to the
Governor-General by the Constitution to an appointment of the Judges to the
Supreme Court generally without allowing him the right to appoint them to the
two Divisions of that Court. Clearly the Act purported
to give the
Lieutenant-Governor the right to appoint Judges to particular offices as such,
though his field of selection was limited.
In the case before us the nomination of the Judges by the Minister does not
constitute an appointment to any new office or even
to any office as such. The
Judges nominated by the Minister were already Judges of the Supreme Court, and
in holding a Trial at
Bar under section 440A of the Criminal Procedure Code they
function as Judges of the Supreme Court and in no other capacity.
352
The power of nomination conferred
on the Minister is no different in substance from the power exercised by the
Chief Justice to
nominate a bench of' Judges to hear and determine a cause
either by virtue of his statutory power under section 51 of the Courts
Ordinance
or by virtue of his conventional function in nominating Judges to hear certain
other matters. There are various provisions
in the Courts Ordinance for the
hearing of appeals, applications and other cases in the exercise of the original
criminal jurisdiction
of the Supreme Court by one, two, three or more Judges.
The power to nominate the judges in cases where no express statutory provision
has been made therefor appears to us to reside in the Court, although it is
correct to say that by convention it is the Chief Justice
who, for purposes of
convenience, exercises such power. Can it be seriously contended that every time
the Chief Justice so nominates
a judge or judges, whether by virtue of his
statutory or his conventional powers, he is appointing judges to particular
offices
as distinct and separate from the offices to which they were appointed
by the Governor-General ? Had the Minister, of course, purported
to nominate any
person who did not hold the office of a Judge of the Supreme Court to officiate
as a Judge at this Trial at Bar,
he would undoubtedly have been purporting to
appoint a person to the office of a Judge in contravention of section 52 (1) of
the
Order in Council. We therefore think that the nomination of the judges by
the Minister in this instance is not an appointment by
him of any person to the
office of a Judge of the Supreme Court. The nomination is not ultra vires on
that ground. Nor do we think
that it is possible for us to uphold the defence
contention that the Minister, by this act of nomination, has constituted or
created
a new tribunal distinct and separate from the Supreme Court.
Another argument advanced by the defence was that the Supreme Court is one and
indivisible and that the power of nomination given
to the Minister by section 9
violated the unity and indivisibility of the Court. There can be no doubt that
the existence of the
Supreme Court-is impliedly entrenched by section 52 of the
Order in Council. The entrenched provisions in the Constitution in respect
of
the appointment, tenure, salary and removal of Judges of the Supreme Court will
have no meaning if the Supreme Court is abolished.
We are, however, unable to
accept the proposition that the entire jurisdiction vested in the Supreme Court
by the Courts Ordinance
and other Statutes at the time of the coming into force
of the 1946 Constitution is also entrenched as part of the Constitution
or that
no part of that jurisdiction can be removed and vested in a judicial officer or
otherwise abolished by Parliament by law
passed by a simple majority.
Section 6 of the Courts Ordinance enacts that there shall continue to be within
Ceylon one Supreme Court which shall be called "
The Supreme Court of the Island
of Ceylon ''. There was a similar provision in section 5 of the Charter of 1833
which established
the Supreme Court. Under the Courts Ordinance judges sitting
apart singly or in various combinations are empowered to exercise the
several
jurisdictions of the Supreme Court.
353
The fact of nomination or
selection does not violate the concept of the oneness of the Supreme Court.
Section 21 provides for the
several Judges to sit apart and contemplates some
power of nomination or selection of Judges to exercise the several jurisdictions
of the Court. If the vesting of the power of nomination in a person outside the
membership of the Supreme Court is not ultra vires
the Constitution on the
ground that the power is to be exercised by a person in whom judicial power
cannot be vested, the nomination
by such a person to constitute the bench to
hear a Trial at Bar under section 440A is no different from the nomination by
the Chief
Justice of such a bench prior to the enactment of Act No. 1 of 1962.
The argument based on the violation of the oneness of the Supreme
Court must, in
our opinion, fail.
The next, and in this case the important, point for consideration is whether the
nomination of the three Judges for this Trial at
Bar effected by the Minister of
Justice is an exercise of the judicial power of the State.
A great deal of time was naturally devoted by both sides to an attempt to
define, describe or explain what is meant by judicial
power. For the purposes of
this case we are content to accept a broad classification of judicial power
attempted by the learned
Attorney-General himself. He stated that " judicial power " is used in three
senses :-
(1) in the sense of the essence of judicial power, the strict judicial power ;
(2) in the sense of the power of judicial review ;
(3) in a loose sense, as meaning the powers of a judge, e.g. disciplinary powers
and powers ancillary to the judicial power.
" Judicial power " may be broadly denned as the power to examine questions
submitted for determination with a view to
the pronouncement of an authoritative
decision as to the rights and liabilities of one or more parties. No inclusive
and exclusive
definition of the concept has been formulated and under the
changing conditions of modern government it is doubtful whether a complete
definition is possible-see Legislative, Executive and Judicial Powers in
Australia by Wynes (Third Edition), p. 556. Judicial power
in the first sense
referred to above is best described in the oft-quoted definition of Griffiths C.
J. to be found in his judgment
in Huddart Parker Pty. Ltd. v. Moorehead1[1
(1909) 8 C. L. R. at 357.] which was accepted by Their Lordships of the
Privy Council in Labour Relations Board of Saskatchewan v. John East Iron Works
Ltd.2
[2 (1949) A. C. at 149.]as an accurate statement of the
broad features of the concept. Said Griffiths C. J. :-
" The words 'judicial power' as used in section 71 of the Constitution mean the
power which every sovereign authority must
of necessity have to decide
controversies between its subjects, or between itself and its subjects, whether
the rights relate to
life, liberty or property. The exercise of this power does
not begin until some tribunal which has power to give a binding and
authoritative decision (whether subject to appeal or not) is called upon to take
action. "
354
It can hardly be doubted
that the power of nomination of judges is not part of the exercise of judicial
power in the sense embodied
in the above definition. Nor obviously does this
power of nomination form part of the power of judicial review. The question
calling
for our determination at this stage therefore is whether this power
granted to the Minister under the new legislation falls within
judicial power in
the third sense referred to above. In this third and loose sense of judicial
power the Attorney-General included
powers both ancillary to judicial power and
powers not ancillary to judicial power. Both kinds of powers he designated as
being
non-judicial power. He contended that powers ancillary to judicial power
are themselves not judicial power, but were given to judges
or officers
performing judicial functions. Powers not ancillary, he claimed, were purely
non-judicial powers, and in this category
he sought to include the power to
nominate judges to sit to hear particular cases. Such power to nominate, he
claimed, was a purely
administrative power and could be reposed in a person who
formed no part of the Judicature.
Mr. Jayewardene, appearing for one of the defendants, contended that, where a
power which would ordinarily fall into the third and
loose category in the
Attorney-General's classification is consistent with executive or administrative
power and is consistent
also with judicial power, the matter has to be
considered further in order to see whether that particular power falls actually
within judicial power itself or outside it.
In the case of a power falling definitely outside judicial power, as. for
example, in a definite administrative power of a court,
it is indisputable that
the legislature by a simple majority can vest that power in a body or an
individual outside the judicature.
It is claimed by the defence, however, that
the power to nominate judges, although it may have the appearance of an
administrative
power, is itself so inextricably bound up with the exercise of
strictly judicial power or the essence of judicial power that it
is itself part
of the judicial power.
The power of nomination or selection of the judges to hear particular cases or
to constitute particular benches of the Supreme Court
has up to the time of the
enactment of Act No. 1 of 1962 been invariably reposed in the Court or a part
thereof.
In Queen Victoria Memorial Hospital v. Thornton 1[1 (1953) 87 C. L. R.
144.], the High Court of Australia stated :-
" Many functions perhaps may be committed to a court which are not themselves
exclusively judicial, that is to say, which considered
independently might
belong to an administrator. But that is because they are not independent
functions but form incidents in the
exercise of strictly judicial power ."
This statement was indorsed by the Privy Council in Attorney-General of
Australia v. Reginam (The Boil-makers' Case) 2[2 (1957) 2 A, E. R. at 56.],
Viscount Simonds, on behalf of Their Lordships, stating that " the true
criterion is not what"
355
powers are expressly or by
implication excluded from the scope of Chapter III (The Judicature) but what
powers are expressly or
by implication included in it ". Is the power of
nomination or selection of judges to hear a particular cause an implied power,
in this sense, of the judicature. On such occasions as our law (except in this
impugned instance) has made express provision therefor
it has been reposed in a
member of the Judicature, and where no express provision has been made the
implication is strong that
it is the Court itself that can effect the nomination
or selection. That indeed has been the un-questioned practice for about a
century and a half in this country.
The impugned section seeks to change this consistent and long-established
practice. Is the change intra vires the Legislature's
powers ? " It is always a
serious and responsible duty ", said Isaacs J. in Federal Commissioner of
Taxation v. Munro1[1 (1926) 38 C. L. R. at 180.], " to declare
invalid, regardless of consequences, what the national Parliament representing
the whole people of Australia,
has considered necessary or desirable for the
public welfare. The Court charged with the guardianship of the fundamental law
of
the Constitution may find that duty inescapable. Approaching the challenged
legislation with a mind judicially clear of any doubt
as to its propriety or
expediency-as we must, in order that we may not ourselves transgress the
Constitution or obscure the issue
before us-the question is : Has Parliament, on
the true construction of the enactment, misunderstood and gone beyond its
constitutional
powers ? It is a received canon of judicial construction to apply
in cases of this kind with more than ordinary anxiety the maxim
' ut res magis
valeat quam pereat'. Unless, therefore, it becomes clear beyond reasonable doubt
that the legislation in question
transgresses the limits laid down in the
organic law of the Constitution, it must be allowed to stand as the expression
of the
national will."
Bearing this principle in mind and recalling also that the judicial power of the
State is vested in the Judicature (in which is
included the Supreme Court), let
us examine the question whether the nomination or selection of judges to hear a
particular case,
while itself not a part of the strict judicial power or the
essence of judicial power in the sense of the definition of Griffiths
C. J., is
yet so much incidental to the exercise of that power or an incident in the
exercise of that power as to form part of
that power itself.
The Privy Council in the case of The Shell Co. of Australia Ltd. v. Federal
Commissioner of Taxation 2[2 (1931) A. C. at 275.] expressed
itself in agreement with Isaacs J. when he stated in Federal Commissioner for
Taxation v. Munro (supra) that "there
are many functions which are either
inconsistent with strict judicial action, as the arbitral function in
Alexander's case. or
are consistent with either strict judicial or executive
action. If inconsistent with judicial action, the question is at once answered.
If consistent with either strictly judicial or executive action, the matter must
be examined further. "
356
Then again, in The Queen v.
Damson 1[1 (1954) 90 C. L. R. at 369.], Dixon C. J. and Mc Tiernan
J. in the High Court of Australia, in referring to the observation of the Court
in Queen Victoria Memorial
Hospital v. Thornton (supra), which we have already
reproduced earlier, stated that " it is this double aspect which some acts
or
functions may bear that makes it so difficult to define the judicial power. . .
. An extreme example of a function that may
be given to courts as an incident of
judicial power or dealt with directly as an exercise of legislative power is
that of making
procedural rules of court. The proper attribution of this power
is a matter that has received much attention in the United States
", where,
according to Dean Roscoe Pound's thesis on the subject, historically and
analytically it is the function of the
courts to regulate their procedure. Said
Dean Pound :-
" In doubtful cases, however, we employ a historical criterion. We ask whether,
at the time our Constitutions were adopted,
the power in question was exercised
by the Crown, by Parliament, or by the Judges. Unless analysis compels us to say
in a given
case that there is a historical anomaly, we are guided chiefly by the
historical criterion."
Said Dixon C. J. and Me Tiernan J. in Davison's case (supra) at p. 369 :-
" The truth is that the ascertainment of existing rights by the judicial
determination of issues of fact or law falls exclusively
within the judicial
power so that Parliament cannot confide the function to any person or body but a
court constituted under sections
71 and 72 of the Constitution, and this may
also be true of some duties or powers hitherto invariably discharged by courts
under
our system of jurisprudence but not exactly of the foregoing description.
"
In a case arising upon an interpretation of the American Constitution, where the
difficulty was in distinguishing between a legislative
and a judicial
proceeding, it was held that the end accomplished may be decisive. Said Holmes
J. in Prentis v. Atlantic Coast Line
Co 2[2 (1908) 211 U. S. 210.]
, " the nature of the final act determines the nature of the previous inquiry ".
Though the purpose to which this test
was put by Holmes J. was to distinguish a
judicial from a legislative function, Dixon C. J. and Me Tiernan J. thought, and
we respectfully
agree with them, that it may usefully be applied by analogy to
ascertain whether a thing is done administratively or as an exercise
of judicial
power.
A somewhat different approach to the problem appealed to Kitto J. in the same
case-at pp. 381-2-when he stated :-
"It is well to remember that the framers of the Constitution, in distributing
the functions of government amongst separate
organs, were giving effect to a
doctrine which was not a product of abstract reasoning alone, and was not based
upon precise definitions
of the
357
terms employed .... and it is
safe to say that neither in England nor elsewhere had any precise tests by which
the respective functions
of the three organs might be distinguished ever come to
be generally accepted. The reason, I think, is not far to seek. .... the
separation of powers doctrine is properly speaking a doctrine not so much about
the separation of functions as about the separation
of functionaries .... For it
still remains true firstly, that different skills and professional habits are
needed at the different
levels of law-making ; and secondly, that concern for
individual liberty will always see one of its chief safeguards in the
precautionary
disposal of law-making power. It may accordingly be said that when
the Constitution of the Commonwealth prescribes as a safeguard
of individual
liberty a distribution of the functions of government amongst separate bodies,
and does so by requiring a distinction
to be maintained between powers described
as legislative, executive and judicial, it is using terms which refer, not to
fundamental
functional differences between powers, but to distinctions generally
accepted at a time when the Constitution was framed between
classes of powers
requiring different " skills and professional habits " in the authorities
entrusted with their exercise.
For this reason it seems to me that where the Parliament makes a general law
which needs specified action to be taken to bring about
its application in
particular cases, and the question arises whether the Constitution requires that
the power to take that action
shall be committed to the judiciary to the
exclusion of the executive, or to the executive to the exclusion of the
judiciary, the
answer may often be found by considering how similar or
comparable powers were in fact treated in this country at the time the
Constitution was in fact prepared. Where the action to be taken is of a kind
which had come by 1900 to be so consistently regarded
as peculiarly appropriate
for judicial performance that it then occupied an acknowledged place in the
structure of the judicial
system, the conclusion, it seems to me, is inevitable
that the power to take that action is within the concept of judicial power
as
the framers of the Constitution must be taken to have understood it."
As we have already stated, section 9 of Act No. 1 of 1962 is a novel provision
of law the like of which does not hitherto appear
to have found a place in any
recognised system of law. We find ourselves echoing here the words of Bonser C.
J. used, in another
context, in an old Ceylon case, Rode v. Bawa,[1 (1896) 1 N.
L. R. at 374.] that " there is no case exactly like this to be
found in the
books, for I suppose such a case never happened before." The right of a judge to
exercise judicial power is so
inextricably bound up with the actual exercise of
the power and is such an essential step in the exercise of the strictly judicial
power that it must, in our opinion, be considered part of the power itself.
Unless the Legislature has vested the exercise of any
strictly judicial power in
the entire Supreme
358
Court, it is necessary that a
bench of Judges should be nominated to exercise that judicial power vested in
the Supreme Court. If
the power of nomination is completely abolished, no
judicial power vested in the court can be exercised. If that power is vested
in
an outside authority, it will legally be open to such authority to exercise that
power to prevent a particular judge or judges
from exercising any part of the
strictly judicial power vested in them by the Constitution as judges of the
Supreme Court. The
absurdity of such a possible result will be more marked if,
instead of the position of a Puisne Justice of the Court, the position
of the
Chief Justice himself be considered. Under a provision of law of this nature it
seems to us legally possible to exclude
the Chief Justice himself from presiding
in the Court of which he is the constitutionally appointed Head. The exercise of
the power
to nominate can then in practice result in a total negation of the
judicial power of a judge or judges vested in them by the Constitution.
Then, again, if the power to nominate or select judges can be constitutionally
reposed in the Minister on the ground that it is
no more than an exclusively
administrative act, we can see nothing in law to prevent such a power being
conferred on any other
official, whether a party interested in the litigation or
not. The fact that the power of nomination so conferred is capable of
abuse so
as to deprive a judge of the entrenched power vested in him by virtue of his
appointment under section 52 of the Order
in Council, or at least to derogate
from that power, is a consideration which is not an unimportant one in deciding
whether the
conferring of this power by section 9 on a person who is not a judge
of the Supreme Court is ultra vires the Constitution. It may,
of course, be
contended that the power is capable of abuse even if it is granted to a Judge of
the Supreme Court or, for that matter,
to the entire Court. However, the proper
authority under the Constitution to exercise this power appears to be the
Judicature itself.
Although the cases to which we have made reference in this Order have been
decided in Australia or the United States of America
against the background of
their respective Constitutions, it does not appear to us to be illegitimate to
apply the tests referred
to-therein in a solution of the problem with which we
are confronted in this case.
Applying the historical test indicated by Dean Pound or following the approach
approved in the judgment of Kitto J. we have referred
to, we are met with the
fact that at all times prior to the enactment of the Criminal Law (Special
Provisions) Act, No. 1 of 1962,
this power of nomination was invariably vested
in the Judicature. Whenever there was no express vesting of this power it was
always
exercised by Her Majesty's Courts and the Judges thereof. As we have
already stated, no instance has been cited either in this country
or in any
country of the British Commonwealth of Nations where such a right of nomination
or selection has been granted to anyone
outside the Judicature.
359
On the other hand, if we were to
apply what may be termed ,for brevity, as the Holmes test and inquire what is
the end or purpose
in view in making this nomination there can be only one
answer, viz. to exercise the strictly judicial power of the State. In this
sense
too, the Statute has purported to confer judicial power on the Minister.
For reasons which we have endeavoured to indicate above, we are of opinion that
because
(a) the power of nomination conferred on the Minister is 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 is in derogation
thereof, and
(b) the power of nomination is one which has hitherto been invariably exercised
by the Judicature as being part of the exercise
of the judicial power of the
State, and cannot be reposed in anyone outside the Judicature,
section 9 of the Criminal Law (Special Provisions) Act, No. 1 of 1962, is ultra
vires the Constitution.
This conclusion we have reached on the validity of the law conferring the power
of nomination on the Minister deprives us of jurisdiction
to enter upon a Trial
at Bar of these defendants. In ordinary circumstances, therefore, there would
have been nothing more to be
said at this stage. We, nevertheless, propose to
refer to another objection of a fundamental character raised by Mr. Ponnambalam
and supported by other counsel for the defence. Even if the power of nomination
is intra vires the Constitution, does it offend,
in the context of this
particular case, against that cardinal principle in the administration of
justice which has been repeatedly
stated by Judges and which was restatei in
1924 by Lord Hewart C. J. in R v. Sussex Justices, ex parte Me Carthy1[1 (1924)
1 K.
B. at 259.] as follows :-
" It is not merely of some importance, but is of fundamental importance that
justice should not only be done, but should manifestly
and undoubtedly be seen
to be done ...... Nothing is to be done which creates even a suspicion that
there has been an improper
interference with the course of justice. "
Under section 440A of the Criminal Procedure Code as it stood prior to 1962 the
Minister had merely the right to direct that the
trial be held before the
Supreme Court by three Judges without a jury. But the new legislation, passed,
with retroactive effect,
after the commission of the offences alleged, has
purported to vest in the Minister, a member of the Government which the
defendants
are alleged to have conspired to overthrow by unlawful means and who,
it was not disputed, had
360
participated in the investigation
and interrogation of some of the defendants, the additional power to nominate
the three Judges.
This power, as indicated already, had hitherto been vested in
the Supreme Court as a body or in the Chief Justice, but certainly
in no person
or body outside the Judicature. This is the first occasion on which an attempt
has been made to vest this power in
such an outsider, and that too in
circumstances where the propriety of the nomination becomes, by reason of the
doctrine of ministerial
responsibility, discussable in Parliament involving,
perhaps, the merits and demerits of respective Judges, whereas under the
previous
law the Judges enjoyed freedom from being the subject of such a
discussion.
A court cannot inquire into the motives of legislators. The circumstances set
out above are, however, such as to put this court
on enquiry as to whether the
ordinary or reasonable man would feel that this court itself may be biassed.
What is the impression
that is likely to be created in the mind of the ordinary
or reasonable man by this sudden and, it must be presumed, purposeful change
of
the law, after the event, affecting the selection of Judges ? Will he not be
justified in asking himself, " Why should
the Minister, who must be deemed to be
interested in the result of the case, be given the power to select the Judges
whereas the
other party to the cause has no say whatever in a selection ? Have
not the ordinary canons of justice and fairplay been violated?"
Will he harbour
the impression, honestly though mistakenly formed, that there has been an
improper interference with the course
of justice ? In that situation will he not
suspect even the impartiality of the Bench thus nominated ?
Examining previous instances where this principle has been applied, we find
Swift J. in R v. Essex Justices, ex parte Perkins1[1 (1927) 2 K. B. at
488.] stating that " it is essential that justice should be so
administered as to satisfy reasonable persons that the tribunal is
impartial and
unbiassed", and Bucknill J. observing in Cottle v. Cottle 2[ 2 (1939) 2
A. E. R. 541.] that the test to be applied is " whether or not a
reasonable man in all the circumstances might suppose that there was an improper
interference with the course of justice." Our own Court of Criminal Appeal has,
in The King v. Beyal Singho 3[3 (1946) 48 N. L. R. at 27.],
formulated the rule thus :-"Nothing is to be done which raises a suspicion that
there has been an improper interference with
the course of justice."
Guiding ourselves by these tests and those applied in other cases 4[4 (a)
Eckersley v. Mersey Docks and Harbour Board, (1894) 2 Q. B. 670.
(b) Rode v. Bawa (supra).
(c) Dingiri Mahatmaya v. Mudiyanse, (1922) 24 N. L. R. 377.
(d) Ruthira Reddiar v. Subba Reddiar (1937) 39 N. L. R. 14.
(e) The King v. Oaldera (1938) 11 C. L. W. 1.
(f) Kandasamy v. Subramaniam (1961) 63 N. L. R. 574.] we have examined,
we find it difficult to resist the conclusion that the power of nomination
conferred on the Minister offends
the cardinal principle as restated by Lord
Hewart. For that reason, even had we come to a
361
different conclusion regarding the validity of section 9 of the Criminal Law (Special Provisions) Act, we would have been compelled to give way to this principle which has now become ingrained in the administration of common justice in this country.
Sgd. T. S. FERNANDO,
Puisne Justice.
Sgd. L. B. DE SILVA,
Puisne Justice.
Sgd. P. SRI SKANDA RAJAH,
Puisne Justice.
Preliminary objection as to jurisdiction of the Court upheld.
Document "A".
Direction under Section 440A.
of the Criminal Procedure Code as amended
by Section 4 of the Criminal Law (Special Provisions) Act, No. 1 of 1962
To the Honourable the Chief
Justice of the Supreme Court of the Island of Ceylon.
I, Samuel Peter Christopher Fernando, Minister of Justice, by virtue of the
power vested in me by Section 440A(1) (a) of the Criminal
Procedure Code, as
amended by Section 4 of the Criminal Law (Special Provisions) Act, No. 1 of
1962, do hereby direct that the
trial of the following persons, to wit,
1. Don John Francis Douglas Liyanage
2. Maurice Ann Oerard de Mel
3. Frederick Cecil de Saram
4. Cyril Cyrus Dissanayaka
5. Sidney Godfrey de Zoysa
6. Gerard Royce Maxwell de Mel
7. Wilmot Selvanayagam Abraham
8. Bastianpillai Ignatius Loyola
9. Wilton George White
362
10. Nimal Stanley Jayakody
11. Anthony John Bernard Anghie
12. Don Edmond Weerasinghe
13. Noel Vivian Mathysz
14. Victor Leslie Percival Joseph
15. Basil Rajandiram Jesudasan
16. Victor Joseph Harold Gunasekera
17. John Anthony Kajaratnam Felix
18. William Ernest Chelliah Jebanesan
19. Terrence Victor Wijesinghe
20. Lionel Christopher Stanley Jirasinghe
21. Vithanage Elster Perera
22. David Senadirajah Thambyah
23. Samuel Gardner Jackson
24. Rodney de Mel
in respect of the following offences under Chapter VI of the Penal Code, to wit,
1. That on or about the 27th day of January, 1962, at Colombo, Kalutara,
Ambalangoda, G-alle, Matara and other places, they with
others did conspire to
wage war against the Queen and thereby committed an offence punishable under
Section 115 of the Penal Code
as amended by Section 6 (2) of the Criminal Law
(Special Provisions) Act, No. 1 of 1962, read with Section 114 of the Penal
Code.
2. That on or about the 27th day of January, 1962, at Colombo, Kalutara,
Ambalangoda, Galle, Matara and other places, they with
others did conspire to
overthrow otherwise than by lawful means the Government of Ceylon by law
established and thereby committed
an offence punishable under Section 115 of the
Penal Code as amended by Section 6 (2) of the Criminal Law (Special Provisions)
Act, No. 1 of 1962.
3. That on or about the 27tb day of January, 1962, at Colombo, Kalutara,
Ambalangoda, Galle, Matara and other places, they with
others did prepare to
overthrow otherwise than by lawful means the Government of Ceylon by law
established and thereby committed
an offence punishable under Section 115 of the
Penal Code as amended by Section 6 (2) of the Criminal Law (Special Provisions)
Act, No. 1 of 1962.
be held before the Supreme Court at Bar by three Judges without a Jury.
Given under my hand this 23rd day of June, 1962, at Colombo.
Sgd. Sam. P. C. Fernando.
Minister of Justice.
Document " B ".
IN THE SUPREME COURT OF THE
ISLAND OF CEYLON
Information
Information exhibited by Her Majesty's Attorney-General
THE QUEEN
vs.
1. Don John Francis Douglas
Liyanage
2. Maurice Ann Gerard de Mel
3. Frederick Cecil de Saram
4. Cyril Cyrus Dissanayaka
5. Sidney Godfrey de Zoysa
6. Gerard Royce Maxwell de Mel
7. Wilmot Selvanayagam Abraham
8. Bastianpillai Ignatius Loyola
9. Wilton George White
10. Nimal Stanley Jayakody
11. Anthony John Bernard Anghie
12. Don Edmond Weerasinghe
13. Noel Vivian Mathysz
14. Victor Leslie Percival Joseph
15. Basil Rajandiram Jesudasan
16. Victor Joseph Harold Gunasekera
17. John Anthony Rajaratnam Felix
18. William Ernest Chelliah Jebanesam
19. Terrence Victor Wijesinghe
20. Lionel Christopher Stanley Jirasinghe
21. Vithanage Elster Perera
22. David Senadirajah Thambyah
23. Samuel Gardner Jackson
24. Rodney de Mel
Defendants.
This 23rd day of June, 1962.
364
BE it remembered that Douglas St.
Clive Budd Jansze', Esquire, Queen's Counsel, Her Majesty's Attorney-General for
the Island of
Ceylon, who for Her Majesty in this behalf prosecutes, gives the
Court to understand and be informed that-
1. On or about the 27th day of January, 1962, at Colombo, Kalutara, Ambalangoda,
Galle, Matara and other places within the jurisdiction
of this Court, the
defendants abovenamed with others did conspire to wage war against the Queen and
did thereby commit an offence
punishable under Section 115 of the Penal Code as
amended by Section 6 (2) of the Criminal Law (Special Provisions) Act, No. 1 of
1962, read with Section 114 of the Penal Code.
2. At the time and. places aforesaid and in the course of the same transaction
the defendants abovenamed with others did conspire
to overthrow otherwise than
by lawful means the Government of Ceylon by law established and did thereby
commit an offence punishable
under Section 115 of the Penal Code as amended by
Section 6 (2) of the Criminal Law (Special Provisions) Act No. 1 of 1962.
3. At the time and places aforesaid and in the course of the same transaction
the defendants abovenamed with others did prepare
to overthrow otherwise than by
lawful means the Government of Ceylon by law established and did thereby commit
an offence punishable
under Section 115 of the Penal Code as amended by Section
6 (2) of the Criminal Law (Special Provisions) Act, No. 1 of 1962.
WHEREUPON Her Majesty's Attorney-General prays the consideration of the Court
here in the premises, and that due process of law
may be awarded against the
defendants abovenamed, in this behalf to make them answer to Our Sovereign Lady
the Queen touching and
concerning the premises aforesaid.
Sgd. D. Jansze,
Attorney-General.
Document " C ".
Nomination made by the Minister
of Justice under Section 9 of the Criminal
Law (Special Provisions) Act, No. 1 of 1962
WHEREAS, I, SAMUEL PETER
CHRISTOPHER FERNANDO, Minister of Justice, have on the Twenty-third day of June
1962, issued a direction
under Section 440A of the Criminal Procedure Code, as
amended by Section 4 of the Criminal Law (Special Provisions) Act, No. 1 of
1962, requiring that the trial of the following persons, to wit,
1. Don John Francis Douglas Liyanage
2. Maurice Ann Gerard de Mel
3. Frederick Cecil de Saram
4. Cyril Cyrus Dissanayaka
5. Sidney Godfrey de Zoysa
365
6. Gerard Royce Maxwell de Mel
7. Wilmot Selvanayagam Abraham
8. Bastianpillai Ignatius Loyola
9. Wilton George White
10. Nimal Stanley Jayakody
11. Anthony John Bernard Anghie
12. Don Edmond Weerasinghe
13. Noel Vivian Mathysz
14. Victor Leslie Percival Joseph
15. Basil Rajandiram Jesudasan
16. Victor Joseph Harold Gunasekera
17. John Anthony Rajaratnam Felix
18. William Ernest Chelliah Jebanesan
19. Terrence Victor Wijesinghe
20. Lionel Christopher Stanley Jirasinghe
21. Vithanage Elster Perera
22. David Senadirajah Thambyah
23. Samuel Gardner Jackson
24. Rodney de Mel
in respect of the following offences under Chapter VI of the Penal Code, to wit,
1. That on or about the 27th day of January, 1962, they with others did conspire
to wage war against the Queen and thereby committed
an offence punishable under
Section 115 of the Penal Code as amended by Section 6 (2) of the Criminal Law
(Special Provisions)
Act, No. 1 of 1962, read with Section 114 of the Penal
Code.
2. That on or about the 27th day of January, 1962, they with others did conspire
to overthrow otherwise than by lawful means the
Government of Ceylon by law
established and thereby committed an offence punishable under Section 115 of the
Penal Code as amended
by Section 6 (2) of the Criminal Law (Special Provisions)
Act, No. 1 of 1962.
3. That on or about the 27th day of January, 1962, they with others did prepare
to overthrow otherwise than by lawful means the
Government of Ceylon by law
established and thereby committed an offence punishable under Section 115 of the
Penal Code as amended
by Section 6 (2) of the Criminal Law (Special Provisions)
Act, No. 1 of 1962.
366
be held before the Supreme Court
at Bar by three Judges without a Jury :
NOW THEREFORE, I, SAMUEL PETER CHRISTOPHER FERNANDO, Minister of Justice, in
pursuance of the power vested in me by Section 9 of
the Criminal Law (Special
Provisions) Act, No. 1 of 1962, do hereby nominate
(1) THE HONOURABLE THUSEW SAMUEL FERNANDO, C. B. E., Q. C.
(2) THE HONOURABLE LEONARD BERNICE DE SILVA
(3) THE HONOURABLE PONNUDURAISAMY SRI SKANDA RAJAH
Judges of the Supreme Court of the Island of Ceylon, to be the three Judges who
shall preside over the trial of the aforementioned
persons to be held in
pursuance of the aforementioned direction.
Given under my hand this 23rd day of June, 1962.
Sgd. Sam. P. C. Fernando,
Minister of Justice.
To The Honourable the Chief
Justice,
Colombo.
] [Hide Context]
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