Judicial competence of Privy Council | Daily News

Judicial competence of Privy Council

In 1972 the UF Government of Sirimavo introduced a Republican Constitution, assisted by Dr. Colvin R de Silva, instituting freedom from the fetters of colonial domination, a free, sovereign republic.
In 1972 the UF Government of Sirimavo introduced a Republican Constitution, assisted by Dr. Colvin R de Silva, instituting freedom from the fetters of colonial domination, a free, sovereign republic.

“The Acts offended against the Constitution in that they amounted to a direction to convict the men or to a legislative plan to secure their conviction and severe punishment and thus constituted an unjustifiable assumption of judicial power, by the legislature, or an interference with judicial power, which was outside the legislatures competence and was inconsistent with the severance of power between legislature, executive and judiciary which the constitution ordained.”

- Lord Pearce: Privy Council

In England the highest Judicial Court is the House of Lords, the 2nd Chamber. However, it is well understood that only a very few legally qualified members or ‘peers’ take part in its judicial work. They are life members or life peers known as Lords of appeal. They also serve as Members of Judicial Committee of Privy Council, and this Council hears the appeals of Commonwealth countries that have not severed its connections with the Crown.

As per The Judicial Committee of the Privy Council’s ruling on December 21, 1965, Special Acts passed by the Parliament to deal with persons charged with conspiring in the failed Coup d’e 'tat of January 27, 1962, amounted to an interference with the judicial tasks. This was fatal to the legislation’s validity. They quashed the convictions of Douglas Liyanage, Col. F. C. de Saram, C. C. Dissanayake, Sydney de Zoysa, Admiral Royce de Mel, Col Noel Matthysz, Col Basil Jesudasan, T. V. Wijesinghe, L. C. S. Jiresinghe and V. E. Perera, who were found guilty on three counts of conspiracy to wage war against the Queen and to overawe and to overthrow the Ceylon government accused sentenced at the coup trial in the Supreme Court to ten years’ imprisonment and confiscation of all their property.

Limited to a Preliminary point raising on the question of validity of the special legislation –the Criminal Law (Special Provisions) Act and the Criminal Law Act both of 1962, under which the men were tried and sentenced was argued in the Privy Council appeal. Lord Pearce who delivered the Privy Council’s judgement, said the detailed story of the Coup, the names of 30 alleged conspirators and the parts played by them and how it was foiled at the very last moment was set out in a White Paper of the Ceylon government issued on February 13, 1962.

Extracts from Privy Council’s Judgement

Lord Pearce (Edward Holroyd Pearce) delivered the judgement of the Coup.

It is assumed that the coup was intended by certain army and police officers with the aim of overthrowing the government and arresting among others the Deputy Minister for Defence and External Affairs since he could give orders to the services which might disturb the takeover.

Lord Pearce continued. ‘It provided that Minister of Justice could direct that they should be tried by three judges without a jury. It also provided that the three judges could be nominated by the minister. The Supreme Court upheld a preliminary objection that the power of nomination conferred on the Minister was invalid and the second act was enacted providing that the Chief Justice could nominate three judges’.

E. F. N. Gratiaen QC, Counsel for the accused, attacked the validity of convictions on three main grounds, that the Ceylon Parliament was limited by an incapacity to pass legislation which was contrary to fundamental principles of justice. The 1962 Acts it was said were contrary to such principles in that they not only were directed against individuals but also ex post facto created crimes and punishments, and destroyed fair safeguards by which those individuals would otherwise be protected. The third argument was that the language of the Acts did not suffice to deprive the men of the right to a jury, which they had acquired before the passing of those Acts.

On the first argument, it was said that the sovereign’s right of the United Kingdom Parliament was not in terms transferred to Ceylon on Independence. “Therefore the legislative power of Ceylon was still limited by the inability, which it inherited from the crown, to pass laws which offended against fundamental principles—a vague and uncertain phrase which might arguably be called in aid against some of the statutes passed by any sovereign power.” The joint effect of the Ceylon (Constitution) Order-in-Council 1946 and the Ceylon Independence Act of 1947 was intended to and did have the result of giving to the Ceylon Parliament the full legislative powers of a sovereign independent State.

Lord Pearce commented: “It would be regrettable if the procedure adopted in giving independence to Ceylon has produced the situation for which the appellants contend. In the view of their Lordships, however such a contention is maintainable.”

“In Ceylon, the change of sovereignty did not in itself produce any apparent change in the constituents or the functioning of the judicature. The constitution’s silence as to the vesting of judicial power was consistent to the remaining where it had lain for more than a century in the hands of the judicature”, remarked Lord Pearce.

“In the present case Their Lordships had no doubt that there was an interference with the functions of judiciary. The Acts of 1962 were clearly aimed at particular known individuals who had been named in a White Paper and were imprisoned awaiting their fate. Such a lack of generality in criminal legislation need not of itself involve the judicial function and their lordships were not prepared to hold that very enactment in this field must inevitably usurp or infringe the judicial power. Each case must be decided in the light of its own facts and circumstances.”

“…The true nature and purpose of these enactments are revealed by their conjoint impact on these specific proceedings, in respect of which they were designed, and they take their colour, in particular, from the alterations they purported to make as to their ultimate objective, the punishment of those convicted.” Lord Pearce said.

“These alterations constitute a grave and deliberate incursion into the judicial sphere. Quite bluntly, their aim was to ensure that the judges in dealing with these particular persons on these particular charges were deprived of their normal discretion as respects appropriate sentences.

They were compelled to sentence each offender on conviction to not less than 10 years’ imprisonment and compelled to order confiscation of his possessions even though his part in the conspiracy might have been trivial. Lord Pearce said in conclusion: “… if such Acts as these were valid the judicial power could be wholly absorbed by the legislature and taken out of the hands of the judges. It is appreciated that the legislator had no such general intention. It was beset by a grave situation and it took grave measures to deal with it, thinking one must presume that it had power to do so and was acting lightly.

“…but that consideration is irrelevant and gives no validity to acts which infringed the constitution. What is done once, if it be allowed may be done again and in a lesser crisis and less serious circumstances. And thus judicial powers may be eroded. Such an erosion is contrary to the clear intension of the constitution. In Their Lordships view the Acts were ultra vires and invalid. It was agreed between the parties that if the Acts were invalid the convictions could not stand and the appeals would therefore be allowed,” Lord Pearce added.

1972 Constitution – Ending Jurisdiction of PC

In 1972 the UF Government of Sirimavo introduced a Republican Constitution, instituting freedom from the fetters of colonial domination, a free, sovereign republic. The alien apex Privy Council was replaced with Supreme Court as our highest appellate court.

Add new comment