The Queen v. Liyanage and others
1963 Present: Sansoni, J. (President), H. M. G. Fernando, J„and L. B. de Silva, I..THE QUEEN v. D. J. F. D. LIYANAGE and othersTrial at Bar No. 2 of 1962Trial at Bar—Criminal Law [Special Provisions) Act, No. 1 of 1962, sa. 6, 9,17, 18,19,21—Criminal Law Act, No. 31 of 1962, s. 6—Bench constituted underAct No. 1 of 1962—Lack of jurisdiction to hear information—Second informationfiled by virtue of Act No. 31 of 1962—Jurisdiction of Court to hold trialthereon—Invalidity of plea in the nature of autrefois arraign—Validity of expost facto legislation— Validity of legislation enacted in English language after1st January 1961—Penal Code, ss. 69, 72, lid, 115,116—Criminal ProcedureCode, ss. 440A (1), 440B—Courts Ordinance, s. 19—Ceylon [Constitution)Order in Council, 1946, ss. 29 (4), 36, 38—Declaration of Human Rigkts [UnitedNations Organisation), Article ll—Official Language Act, No. 33 of 1956, s. 2—Revised Edition of the Legislative Enactments Act, No. 2 of 1956, s. 12 (J).
On 23rd June 1962 the Attorney-General filed in the Supreme Court aninformation against the defendants under the provisions of the Criminal Law(Special Provisions) Act No. 1 of 1962. Summons was issued on the defendantsunder the hand of the Registrar of the Supreme Court and was served on eachof them. The order for the issue of summons was made by the three Judgeswho were nominated by the Minister of Justice to constitute the Bench. On3rd October 1962 the Bench made order that it had po jurisdiction to hold thetrial for the reason that the Minister’s power to nominate the Judges was ultravires the Constitution. The Bench did not make any order of discharge of thedefendants, and the defendants were thereafter held in custody in pursuanceof detention orders made under the Emergency Regulations.
On 21st November 1962 the Attorney-General filed a second informationagainst the defendants by virtue of the provisions of the Criminal Law Act,No. 31 of 1962, which was enacted by Parliament on 14th November 1962 inorder, partly, to meet the difficulties created by reason of the order made bythe Bench on 3rd October 1962. Section 0 of Act No. 31 of 1962 enacted interalia that the first information of 23rd June 1902 should be deemed, for allpurposes, to have had, and to have, no force or effect in law.
It was contended on behalf of the defendants (1) that the first informationof 23rd June 1962 was still pending before the Supreme Court, and that theCourt, or the present Bench of that Court, must hold trial on that informationand had no jurisdiction to hold trial on the second information of 21st November1962, (2) that the retroactive amendment of section 115 of the Penal Code bysections 6 and 19 of Aot No. 1 of 1962 was invalid, and (3) that Aots No. 1 of 1962and No. 31 of 1962 were invalid because they were not framed in Sinhala.
Held, (i) that, inasmuch as the Minister's nomination, of the Judges of thefirst Bench was ultra vires, that Bench had not the legal power to order summons.There was therefore no exercise of the judicial power of the Supreme Court onthe first information of 23rd June 1962. It followed that there was no judicialact with which Parliament could be said to have unconstitutionally interferedin enacting Act No. 31 of 1962.
that, in any event, the Attorney-General had the power to amend thefirst information. Thus the position existing by reason of section 6 of ActNo. 31 of 1962, that the defendants were called upon to answer new or alteredcharges framed in the second information, could substantially have arisennpon action taken unilaterally by the Attorney-General.
2—E 11238—1,855 (8/63)
OKDBB OF OQUJ&T—Ths Q*t9M »- Ltyanaffs and atham
—- — — ■ —» —
that. evan meuming that the Legislators eouM uos v»Hdly zmllffy, byAcs No. SI of 1032, fchs fire, inionnawon, the deibadaafa had no right to relyon any plea in she nature of outtrqfoit arraign. A second indictment or informa-tion. is not iaheteatiy bad by seaeoa of the pendancy of an earitar ode agdrmthe Baras person on the earns matter.
that the provisions of section 19 of the Courts Ordinance, sections 2, 30and 72 of the Pena! Code, section 36 of the Constitution Order in Council and,Article 11 of United Nations Organisation's Declaration of Human Rights donot bar the trial and punishment, in Ceylon, of offences retroactively createdby statute. Accordingly, section 19, read with sections IS and 21, of the Crimi-nal Law (Special Provisions) Act No. 1 of 1962 manifest® Parliament’s intentionthat the now offences stated in section 115 of the Penal Code, as amended bysection 6 of the Act, should be offences ex post facto as from 1st January 1962.
that, in the absence of clear provision in the Official Language Act No. 33of 1956 requiring all legislation to be enacted in Sinhala, it is not inoperativethat all Acts of Parliament enacted after 1st January 1961 must bo written inSinhala. And even if it can be said that section 2 of the Official LanguageAct manifests some intention that Acts of Parliament must be written in Sinhala,Parliament has the undoubted power to legislate inconsistently with the provi-sions of pre-existing legislation. In the case, therefore, of Acts No. 1 of 1962and No. 31 of 1962 and all other Acts enacted after 1st January 1961, Parliamenthas merely exercised its right to override any such intention as to the languageof the law which may have been entertained at the time of the passing of theOfficial Language Act.
Order made in respect of certain preliminary objections taken to aTrial at Bar held under the provisions of the Criminal Law(Special Provisions) Act, No. 1 of 1962, and the Criminal Law Act,No. 31 of 1962.
Counsel heard:For the Defence:—G. G. Ponnambalani, Q.C.,
H. W■ Jayeiuardenc, Q.C., A. E. C. de Silva, Q.G.
For the Crown:—D. St. G. B. Jansze, Q.G., Attorney-General,
Tennekoon, Deputy Solicitor-General.
Cur. adv. vult.
ORDERFebruary 25, 1963. [Bead by H. N. G. Femundc, J-]—
Each of the 24. Defendants has tendered in writing a plea to thejurisdiction of the Court in the following terms :—
“ That this Court cannot take cognizance of the informationlaid against me and it has no jurisdiction to try me or hold a trial atbar upon the said information
In support of this plea, three different arguments were submitted bythree of the Queen’s Counsel representing some of the Defendants, butwe shall consider all tire submissions as having been made on behalf ofeach one of the Defendants.
ORDER OF COURT—The Queens. Liyanage and others
Before stating the substance of Mr. Ponnambalam’s argument it isnecessary to refer to certain legislation affecting the trial of the Defendantsand to certain proceedings had prior to the tender to us of the plea underconsideration. Parliament on 16th March 1962 enacted the Criminaliaw_ (Special Provisions) Act, No. 1 of 1962. This Act purportedinter alia to make the following provisions :—
To amend section 440a (1) of the Criminal Procedure Code in
order to enable the Minister of Justice to direct the holding ofa trial at Bar in the case of any offence under Chapter VIof the Penal Code, and thus to make such a direction for a trialat Bar in the case cf an offence under section 115 of the PenalCode:
To empower the Minister, upon issuing a direction for a trial at
Bar, to nominate three Judges of the Supreme Court to holdthe trial.
On 23rd June 1962, the Attorney-General filed in the Supreme Court aninformation charging these Defendants on three counts of offencesalleged to have been committed by them in contravention of sections 114(Count 1) and 115 (Counts 2 and 3) of the Penal Code, and prayed thatdue process of law be awarded against the Defendants to make themanswer to the charges. (That information of 23rd June 1962 will bereferred to in this Order as “ the first information ”.) On the same day, theMinister of Justice addressed to the Chief Justice a direction in terms ofthe amended section 440a (1) that the trial of the Defendants uponthose charges shall be held at Bar, together with a nomination, in termsof section 9 of the Act No. 1 of 1962, of three Judges of this Court topreside over the trial at Bar. (We will in this Order refer to those Judgesas “ the first Bench ”.) Summons was issued on the Defendants underthe hand of the Registrar of the Supreme Court and was served on eachof them, and they appeared before the nominated Judges in July 1962in answer to the summons. Although there is no record of any orderfor the issue of summons, the statement by one member of the presentBench (who was also a member of the first Bench), a statement which isnot now contradicted, is that the order for the issue of summons was infact made by the three Judges who were nominated to constitute thefirst Bench.
Several objections were taken by counsel for the Defendants as to thejurisdiction of the first Bench to hold the trial, and on 3rd October 1962,that Bench made order that it had no jurisdiction for the reason thatthe Act No. 1 of 1962 was ultra vires the Constitution in so far as itpurported to empower the Minister to nominate Judges to hold the trial.That Bench thereafter released the Defendants from the remand ' othe Fiscal previously ordered by itself, and the Defendants werethereafter held in custody in pursuance of detention orders made underthe Emergency Regulations. The first Bench did not make any order ofdischarge of the Defendants in respect of the first information filed by the
ORDER OF COURT—The Queen v. IAyanage and'-oihen
Attorney General. In fact, no farther action has up to this date beentaken either by the Attorney-General or by the Supreme Court upon thefirst information.
On November 14th 1962 Parliament enacted the Criminal Law Act,No. 31 of 1962, which in part was clearly designed to meet the difficultiesarising by reason of the order of 3rd October 1902 made by the first Bench.The provision of the earlier Act No. 1 (section 9) which empowered theMinister of Justice to nominate the Judges for a trial at Bar was revoked ;section 440a of the Criminal Procedure Code was completely re-enactedwith additional provisions, including one that any offence under sections114, 115 or 116 of the Penal Code shall be tried at Bar, thus renderingunnecessary a direction of the Minister for the holding of such a trial;and a new section 440b was added to the Criminal Procedure Codeempowering the Chief Justice to name the Judges by whom any trial atBar under section 440a shall be held. Section 6 of the Act containsinter alia provision that the former direction (of the Minister) for a trial atBar, and the first information, and the nomination of the first Bench“ shall be deemed for all purposes to have had, and to have, no force oreffect in law ”.
On November 21st 1962 the Attorney-General filed a second informationcontaining two of the charges framed in his first information and one newcharge not originally so framed. For present purposes, it suffices tostate that it was after the enactment of Act No. 31, and after the filing ofthe Attorney-General's second information, that the Chief Justice nomi-nated the members of the present Bench to hold at Bar the trial of theDefendants. It was after that nomination that we made order forsummons on the Defendants to answer the second information. It is tothe trial by us of the charges framed in the second information that theplea to jurisdiction is taken.
The substance of the objection taken by Mr. Ponnambalam is that thefirst Information is still pending before the Supreme Court, and that theCourt, or the present nominated Bench of that Court, must hold trial onthat information and has no jurisdiction to hold trial on the secondinformation of 21st November 1962. In order to lead up to his substantialobjection, Mr. Ponnambalam made several preliminary submissions :
(а)That a criminal proceeding was instituted in the Supreme Court
by the filing of the first information. This proposition is somanifestly correct that it calls for no comment.
(б)That the exercise of the judicial power of the Supreme Court
commenced with the filing, and the acceptance by the Registrar,of the first information, or else commenced when summonsissued under the hand of the Registrar upon that first information.
That, therefore and thereafter, the Supreme Court alone hadpower to permit withdrawal or amendment of the firstinformations ; and accordingly, that Parliament could not validly(in Mr. Ponnambalam’s words) * * snuff out ” the first information,
ORDER OF COURT—The Queen v. Liyanage and others
and that section 6 of Act No. 31 purported to do that which could,only have been done by the Court and was for that reason apurported exercise of judicial power and as such ultra vires thepowers of Parliament.
J[d) That in the alternative to submission (r.), the language of section 6of Act No. 31 was not sufficiently comprehensive or not so absolutein its terms as to achieve the purpose of nullifying the firstinformation.
With respect, we are quite unable to accept any of these preliminarysubmissions lettered (b), (c) and Id) above. As will presently appear, ourrejection of them does not form the basis of our decision upon thesubstantial objection, but since these submissions were argued at lengthwe shall state briefly the grounds of rejection.
Mr. Ponnambalam relied upon the definition of “ judicial power ,rso often cited and so often approved by Courts of the Commonwealthcountries, that of Griffiths, C.J., of the Supreme Court of Australia inBuddart Parker & Co. v. Moorhead1 and upon the dictum that the“ exercise of this (judicial) power does not begin until some tribunal iscalled upon to take action ”. This observation means only that judicialpower does not commenoe to be exercised until a prosecution is dulyinstituted. It cannot mean, as counsel would have it, that judicial powerwas exercised so soon as the first information was filed with the Registrar.A combination of an act of the Attorney-General on the one side, and ofan act of the Registrar on the other, without the intervention of a Judgesurely cannot constitute the exercise of the judicial power of the SupremeCourt.
Imthe case of the first information, moreover, the Supreme Court assuch was not called upon to take action, for under the law as it then stood(as amended by Act No. 1 of 1962) the power to order summons in the casewas vested by sub-section (5) of section 440a of the Criminal ProcedureCode in the Court nominated by the Minister of Justice. We do notaccept the submission that sub-section (5) becomes operative only afteran actual trial has commenced. Mr. Ponnambalam was forced to conoedethat an order for the issue of summons is an exercise of judicial power andcan only be made by a Court, and we are aware that in fact the power wasexercised by the three Judges nominated by the Minister and acting byvirtue of that nomination. In providing for the issue of summons by thenominated Court, sub-section (5) clearly conferred on that Court the powerto commence judicial proceedings by ordering the appearance of theDefendants. Agreeing as we do with the order made in The Quern v.Liyanage and, others 2 that the Minister’s nomination of the Judges of thefirst Bench was ultra vires, we must hold that the Bench had not the legalpower to order the summons ; it is only if the first Bench had such legalpower that its order would have been an order of the Supreme Court as
120 Commonwealth L. R. 330 at 357.s (1962) 64 N. L. R. 345.
OKDBR OF OO'UBAl—2rAa Qu&*rt p. Li&unage and atfi&rs
^eh. There was therefore no exercise of the judicial power of theSupreme Court on the first information. It follows that there has beenno judicial act with which Parliament can be said, to have interfered in
enacting Act No. 31. Accordingly we have no occasion to consider inthis context the arguments of counsel which were based on the doctrine ofthe separation of powers and on decisions of Courts in other jurisdictionsconcerning legislation impugned as being usurpations of, or interferenceswith, the exercise of judicial power. In any event, the first informationcould have been amended as of right by the Attorney General, for in ouropinion he enjoys the same right of amendment as the Attorney Generalhad in England prior to the enactment of the Indictments Act of 1915(Archbold 33rd edition, page 116). Thus in effect the position now-existing by reason of section 6 of Act No. 31 of 1962, that the Defendantsare called upon to answer new or altered charges framed in the secondinformation, could substantially have arisen upon action taken uni-laterally by the Attorney General. That section was designed to achievea purpose the achievement of which does not call for the exercise of thejudicial power of the Supreme Court. Dor these reasons we are ofopinion that Mr. Ponnambalam’s preliminary submissions do not providea foundation for his substantial objection that the first information isstill pending before the Supreme Court.
But in any event, the substantial objection must fail, even if it becorrect that the Legislature could not validly, or did not successfully,nullify the first information. The Attorney General, though notcalled upon to reply to Mr. Ponnambalam’s arguments, rightly drew ourattention to a recent decision of the Privy Council fully confirming ouropinion that even if two separate indictments are pending against the sameDefendant on identical charges, the only plea open to the defendantwould be one of protection against double jeopardy, that is a plea ofautrefois acquit or of autrefois convict. Such a plea, manifestly, lies onlyafter conviction or acquittal upon one of the two indictments. TheirLordships in the case of Peter Harold Richard Poole v. The Queen 1 denyemphatically the right of a Defendant to rely on any plea in the nature ofAutrefois arraign.
In that case, a Magistrate had after tbe requisite inquiry committed theaccused for trial before the Supreme Court of Kenya on a charge ofmurder, and an information dated 13bh November 1959 was thereafterfiled by the Attorney General. The trial upon that informationcommenced on November 30th 1959, when the accused was arraigned andpleaded not guilty. After Crown Counsel had opened the case for theCrown, a question as to the eligibility of one juror was raised, and in viewof this Crown Counsel entered a nolle prosegui, arid at tbe same timehanded in a second information dated 30th November upon the samecharge. The Judge therefore discharged tbe accused in respect of thecharge for which the nolle prosequi was entered. The accused wassubsequently tried and convicted upon the second information.
* (1901) A. G. 223,
ORDER OF COURT—The Queen v. Liyanage and others79
, ■ ■■
One of the objections taken in appeal to the Privy Council was that
there could, not be in existence at the same time two informations
against the same man for the same offence on the same facts.” In
dealing with this objection, their Lordships referred to a very early
English case :
"In Rex v. John Swan and Elizabeth Jeffreys the prisoners wereindicted for murder. They pleaded Not Guilty at the Chelmsfordsummer assizes and their trial was postponed to the next assizes. Inthe meantime the Attorney-General preferred another bill against themcharging Swan with petty treason and Jeffreys with murder, and at thenext assize a true bill was found and the prisoners arraigned upon it.The prisoners pleaded in abatement ore tenus that another indictmentwas depending for the same offence and pleaded over to the treason andfelony. Counsel for the prisoners contended they should not havebeen arraigned on the new bill pending the former indictment on whichissue had been joined. They asked that the trial on the first indictmentshould proceed before the prisoners were called upon to plead to thesecond. The court (Wright J., with whom Poster J. was sitting atthe request of the former) was of opinion that the charge in the bill lastfound must be answered notwithstanding the pendency of the former,for autrefois arraign was no plea in the case, but that the court musttake care that the prisoners be not exposed to the inconvenience ofundergoing two trials for one and the same fact. The court proposedthat the first indictment should be quashed for consent, to whichcounsel agreed, and the trial on the second indictment proceeded.”
In Regina v. Mitchel1 Blackstone, J., posed the question whether theplea of an indictment pending is a bar to another information on the samematter, and answered the question as follows :—
“ In support of the affirmative, that it is, there is neither precedent,the authority of any case, the dictum of any judge, or even the opinionof any text-writer ; hut, on the other hand, there are authorities thatsuch a plea is utterly invalid.” (Prom page 244.)
Poliowing these decisions, their Lordships concluded by being '£ satisfiedthat a second indictment or information is not inherently bad by reason ofthe pendency of an earlier one for the same offence against the sameperson on the same facts.” (From page 244.) The decision in Poole v.The Queen is a complete answer to Mr. Ponnambalam’s substantial-objection.
The objection argued by Mr. H. W. Jayewardene raises only the■question of jurisdiction to try the third count of the information before us :
" (3) At the time and places aforesaid and in the course of the sametransaction the defendants abovenamed with others did conspire tooverthrow otherwise than by lawful means the Government of Ceylonby law established and did thereby commit an offence punishable underSection 115 of the Penal Code.”
1 (1848) 8 Oox G. O.
OBBEB OF COOBT—Ths Quetn v- Ifyanogs and others
The acts attributed to the Defendants in this count were not men-tioned in section 115 of idle Penal Code as it stood prior to 1st January1952. But section 0 of the Act Ho. 1 of 1962, enacted on I0tb March1962, amended section 115 by inserting therein new provisions havingprima facie the effect of rendering such acts punishable under the section.Section 19 of the Act further declared that “ the provisions of this Act,other than the provisions of section 17, shall be deemed for all purposesto have come into operation on January 1, 1962 Count (3) of theinformation was presumably flamed on the basis that section 6 of ActNo. 1 of 1962 had, by virtue of section 19, retroactive effect, and thataccordingly a person who committed on or about January 27, 1962, theacts mentioned in the amended section 115 of the Penal Code is guiltyof an offence punishable under section 115.
Mr. Jayewardene with customary patience and devotion fco the pleadedcause submitted two distinct arguments to support his objection that theCourt has no jurisdiction to try the Defendants on the charges framed inthe 3rd count. He referred firstly to section 19 of the Courts Ordinance,more particularly to the provision that the Supreme Court shall have anoriginal criminal jurisdiction for the inquiry into all crimes and offences…. and for the hearing, trying and determining ….
indictments and informations which shall be presented against any personor in respect of any such crime or offence or alleged crime or offence.” Heshowed that this section is only a re-enactment of similar provisionearlier made in the Charter of 1833 and argued that the existing criminaljurisdiction of the Court can be no different from the jurisdictions intendedto be conferred in the Charter. Beijing on the definition in Blackstone’s-Commentaries of a crime or misdemeanour as being C! an act committed oromitted in violation of a public law either forbidding it or demanding it ,rand other definitions or expositions to a similar effect, he argued that atthe time of the enactment of the Charter of 1833 ex post facto legislation,,as opposed to merely retrospective legislation, was abhorrent to the pre-vailing principles of criminal jurisprudence, and that accordingly sincethe professed object of those responsible for framing the Ceylon Charterwas to render punishable in Ceylon only acts punishable at the time inEngland, there could have been no intention to confer a jurisdiction to-punish acts prohibited only by ex post facto laws. At other stages of hisargument Mr. Jayewardene referred to other provisions of our statute lawwhich in his submission support the contention that our criminal law is soframed as to render punishable only acts done in breach of pre-existinglaw. Thus, it was said, section 2 of the Penal Code in rendering liableto punishment “ every act or omission contrary to the provisions thereof ”contemplated that the provisions of law referred to in the section mustexist antecedently to the doing of the act in question. So also thedefinition of an offence in the Penal Code as “ any aot or omission madepunishable by any law for the time being in force in the Island ” showedthat what is punishable is an act specified in a law in force at the time ofthe commission of the act. Again it was argued that sections 69 and 72of the Penal Code, in so far as they recognised the principle ignorantia
ORDER OP COURT—The Queen v. Liyanage and others^ — ■ —
juris hand neminem excusat, carry with them the implication that aperson should be able to know at the time when he does an act that it ispunishable by law and that such knowledge can be acquired or presumedto have been acquired only if the category of offences is predetermined bylaw.
—To deal first and separately with the construction sought to be placed•on the meaning of the words “ crimes and offences ” in section 19 of theCourts Ordinance, the argument is at first sight attractive, particularlyin view of the abhorrent nature of ex post facto criminal legislation, butanxious consideration of the purpose of the enactment of what was atfirst section 31 of the Charter of 1833 satisfies us that there is no warrantfor presuming any underlying intention to restrict the jurisdiction of theSupreme Court to the trial and punishment of acts punishable underpre-existing law. There was quite obviously an intention to create ajurisdiction over all crimes and offences punishable under the CommonLaw in England. But the jurisdiction actually conferred also includedthe jurisdiction to try offences created by statute law as well. As early•as 1835 there were Ordinances enacted by the Governor with the adviceand consent of the Legislative Council and there was power for HisMajesty himself to legislate for Ceylon by Order-in-Council. Offencesthus created must surely have fallen within the jurisdiction conferred by•section 31 of the Charter for, but for it, the statute law would have beenunenforceable. The British Parb‘ament itself undoubtedly had, as it hastoday, the power to enact retroactive laws : “ the British Parliamentadmittedly has power to make its laws retroactive ; and I know of noinstance in which a Legislature created by the British Parliament hasbeen held to have overstepped its powers by making legislationretroactive. ” (Higgins, J., in The King v Kidman1.) At the time of theenactment of section 31 of the Charter there must surely have been incontemplation the possibility, however remote or deplorable, that theLegislature of Ceylon or the King in Council might be compelled toutilise this admitted power to legislate, and it is therefore unreasonable toread into section 31 which dealt only with trial and punishment animplication that the law-making authorities would and should refrainfrom enacting retroactive penal laws. Similarly in our opinion theargument based upon section 19 of the Courts Ordinance must fail. Thatsection was enacted at a time when the Penal Code, the Criminal ProcedureCode and other penal laws were already in force, and unless there arisesfrom the Codes or any other law any presumption against the trial andpunishment of offences retroactively created, section 19 by itself does notbear the restrictive meaning sought to be assigned to it.
The arguments of Mr. Jayewardene based upon certain provisions inthe Penal Code and in the Criminal Procedure Code are met we think byconsiderations which apply to his second substantial objection, whichwe will now discuss. His submission was that the whole of Act No. 1 of1962 save section 17 is unconstitutional insofar as it purports to operateprior to the date of its enactment. One argument in support of this1 20 Commonwealth L. R. 425 at 451.
ORDER OR COtTRT—Quaan.v. Zhymaga on4 oihora
objection had reference to oertain principles and provisions affecting theconstruction of legislation by Parliament. Mr, Jayewardane referred tothe former rob of the BngLtsh Common Law, which has been refssed to
as a *' flatly absurd and unjust rule ”, that every statute, unless anotherdate was fixed for its operation, takes effect from, the first day of thesessions in which it was passed. Thereafter in 1793 the British Parliamentenacted that a statute comes into operation when it receives the RoyalAssent; and by section 9 of the Interpretation Act of 1889 the Courtstake judicial notice of an Act. Mr. Jayewardene’s argument has beenthat the Constitution of Ceylon contains similar provisions. This isundoubtedly correct for it is clear from section 36 of the Constitution thata Bill only becomes law and only comes into operation upoa the RoyalAssent being given. But the further contention has been that bynecessary implication Parliament is denied the power to enact a provisionlike section 19 of Act No. 1 of 1962 whereby it is declared that theprovisions of the Act shall be deemed to have come into operation ona date prior to the date of assent.
An inconsistency in this contention is immediately apparent. Thatthe British Parliament had power to make ex post facto law is beyondargument, notwithstanding that the Act of 1793 provides that a statuteshould come into operation upon receiving the Royal Assent. If then theBritish Act of 1793 was not intended to and did not affect that undoubtedpower of Parliament, how can it be said that our Constitution by enactingprovision similar to that in the Act of 1793 intended to impose a ban onex post facto legislation which the Act of 1793 was certainly not intendedto impose? The general principle of the English Common Law hasalways been that a statute will not be construed to have retroactiveeffect unless its terms necessarily lead to that construction. But a ruleof construction obtaining under the Common Law prior to 1793 was thata statute came into operation not upon receiving the Royal Assent hutfrom an earlier date, that is, the first day of the sessions in which it waspassed by Parliament. This rule of construction derogated from thegeneral principle against construction in favour of retroactive operation.All that was intended by the Act of 1793 was to abolish this inconsistentrule of construction, but there was certainly no intention in 1793 toprohibit the enactment by the British Parliament in express words or bynecessary implication of retroactive statutes. If then Mi'. Jayewardene’scontention is correct that the provisions of section 36 of the Constitutionwere borrowed from the Act of 1793, it would be unreasonable to attributeto the borrower any intention of effecting a purpose more comprehensiveand fundamental than the limited purpose for which the Act of 1793 wasitself enacted. The general principle of British law, that a statute hasretroactive operation if the intention in that behalf is clearly manifested,is not in our opinion affected by the provision in section 36 of theConstitution that no Bill becomes law until it receives the Royal Assent.
Another of Mr. Jayewardene’s submissions against the efficacy of section19 of Act No. 1 of 1962, was that Ceylon’s membership of the UnitedNations Organisation has the effect that the Legislature of Ceylon cannot
ORDER OF COURT—The Queen v. Liyanage and others
enact ex post facto laws because Article 11 of the Declaration of HumanRights contains an undertaking that a member of the United NationsOrganisation will not enact such laws. Reference was made to an answerread in the House of Representatives to the effect that Ceylon acceptsthe principles of the Declaration. That answer affords no satisfactoryproof that Ceylon has formally made any requisite act of adherence to theDeclaration. But even if we assume that Ceylon has become a party tothe Declaration, and further assume, without so deciding, that theenactment of ex post facto laws may constitute a breach of the Declaration,there is in our opinion no law properly so called and applicable by theCourts of Ceylon which would justify a decision that the Parliament ofCeylon cannot now validly enact an ex post facto law.
The principle of British law regarding the powers of Parliament arestated thus by Allen (Law in the Making, page 444):
“ There is, in English law, no constitutional restraint upon retroactivelegislation, and if an enactment is unequivocally expressed to operateretrospectively, there is no power in the courts to derogate from it.. .. Whether or not Parliament chooses to legislate retroactively
is therefore a question not of the validity of statute law, but of policyand statesmanship ; and consequently the only de facto restraintswhich exist upon this kind of law are those which apply to all legislation—namely, wise government and public opinion. ”
The opinion of the Judicial Committee in Hodge v. Regina1 was that theBritish North America Act 1867 conferred on the Legislature of Ontarioauthority as plenary and as ample, within the limits prescribed by section92, as the Imperial Parliament in the plenitude of its power possessed andcould bestow. Similarly in Ceylon the power of Parliament to enact laws“ for the peace, order and good government of Ceylon ”, is plenary,subject only to any restrictions expressed in the Constitution itself orarising by necessary implication from its express provisions. If uponconsiderations of what may appear to be unjust or inexpedient, we were toread into the Constitution a restriction against ex post facto law whichis not expressed therein either directly or by necessary implication, wewould be adding to our Constitution a limitation directly stated in theConstitutions of India, France and the United States, which for goodreasons or bad was not stated in our Constitution. That would be toarrogate to the Court the power to legislate. One of the earliest decisionsof the Supreme Court of India after Independence, Qopalan v. State ofMadras a, emphasised the principle that the Court must hold legislationto be good and valid unless it clearly transgresses Constitutionallimitations. The Court cannot declare it to be void merely on the groundthat it is unjust or oppressive, or that it is violative of supposed naturalrights not specified in the Constitution. This important limitation of itsown functions is consistently recognised in succeeding years by the Courtin India. The same principle applies in Ceylon and it prevents us fromholding legislation to be invalid on the ground of conflict with the
Declaration of Human Rights.
'9 A. 0.117 at 132’.
*1950 A. I. R., S. 0. 27.
84ORDER OS’ COURT—The Quean v- .Layomfe andf othme
' ~ — – ' — ~
In terms of the rale of oonsteuclaon which we most apply, we aresatisfied that section 19 of Act Ho, 1 of 1962 manifesto Parliament'sintention that the new offences stated in section 115 of the Penal Code,as amended by the Act, shooH bo offences mpo&faslo as front 1st January1962. The language of section 19, though not as comprehensive as thatwhich has sometimes been employed to effect a similar purpose, is similarto corresponding language of the Australian Grimes Act 1915, which washeld to have created retroactively the offence of " conspiracy to defraudthe Commonwealth” (The King v. Kidman1). The intention of Parliamentis apparent, not only from section 19, but also from the provisions insection 21. Indeed the latter section, as well as the proviso to section 19,show that Parliament intended many of the provisions of the Act, includ-ing the amendment of section 115 of the Penal Code, to be applicableonly to if any offence against the State committed on or about the27th January, 1962, ” that is to say, only to the very acts now alleged tohave been done by these Defendants. The only effect, therefore, whichParliament intended for the amendment of section 115 was its retroactiveeffect.
That amendment then must by this Court “ be deemed to have comeinto operation on January 1, 1962 ”, so that the additional words uponwhich the third count of the information are based must be held by theCourt to have been on the Statute Book, and incorporated in section 115,from that date. Accordingly, even if, as Mr. Jayewardene has contended,certain provisions of the Code contemplate that an act is punishableonly if it has been pre-determined to be an offence, section 19 of ActHo. 1 of 1962 compels us to “ deem ” the new offences to have been pre-determined for all purposes. Any slight doubt which might otherwisehave existed is dispelled by section 18 of the Act, which overrides“ anything to the contrary in any other written law ”,
We share the intense and almost universal aversion to ex post factolaws in the strict sense, that is laws wlxieh render unlawful and punishableacts which, at the time of their commission, had not actually been declaredto be offences. And we cannot deny that in this instance we have toapply such a law. Indeed, it is remarkable that this particular law hasonly a retroactive effect; that it is applicable only to an alleged conspiracyin January 1962 ; and that Parliament has not thought it necessary toprovide that a similar conspiracy against the State which may be plannedin the future will be punishable by law. Nevertheless it is not for us tojudge the necessity for su-ch a law :
*' Allowing for the general inexpediency of retrospective legislation,it cannot be pronounced naturally or necessarily unjust. There maybe occasions and circumstances involving the safety of the state, oreven the conduct of individual subjects, the justice of which prospectivelaws made for ordinary occasions and the usual exigencies of society
120 Commontcealih JE* R» 425.
ORDER OF COURT—The Queen v. Liyanage and others
for want of provision fail to meet, and in which the execution of thelaw as it stood at the time may involve practical public inconvenienceand wrong—summum jus summa injuria. This is a matter of policyand discretion fit for debate and decision in Parliament, as to whicha Court of ordinary municipal law is not commissioned to inquire oradjudicate.” (per Willes, J., in Phillips v. Eyre1—from pages 444-5of Allen, Law in the Making.)
Quite recently in the case of The Queen v. Bvddharalckita Thera et al*a bench of five judges of the Court of Criminal Appeal upheld a sentence ofdeath passed upon a conviction for a murder committed at a time whenunder law the death penalty did not attach to the offence of murder.The penalty of death attached only by reason of legislation enactedwith retroactive effect. An appeal to the Privy Council against thesentence was not successful. The observations of Willes, J., cited abovesatisfy us of the correctness of the opinion, which was effective inThe Queen v. Buddharakhita Thera et al., that under the Constitution ofCeylon the Supreme Court has no power to declare invalid, as such, anex post facto law.
The arguments of Mr. A. H. C. de Silva if upheld would have the drasticconsequence not only that the two Acts of Parliament applicable to thetrial of the offences charged in the information, but also all Acts of Parlia-ment enacted on and after 1st January 1961 are of no effect as law. TheOfficial Language Act No. 33 of 1956 declares by section 2 that “ theSinhala language shall be the one official language of Ceylon.” Havingregard to certain matters dealt with in the proviso to section 2 and toa suspensory notification issued by the appropriate Minister in terms ofthe proviso, Mr. de Silva argues that the declaration became completelyeffective as from 1st January 1961 and requires that all Acts of Parliamentenacted thereafter must be framed in Sinhala.
In the absence of clear provision in that Act directly requiring legislationto be enacted in Sinhala, we are unable to assign to it the peremptoryeffect which counsel seeks to give to the Act. Let us take for examplethe amendment of section 115 of the Penal Code effected by section 6of Act No. 1 of 1962. The Penal Code itself is in the English languageand has the force of law as expressed in that language. Section 12 (3)of the Revised Edition of the Legislative Enactments Act No. 2 of 1956provides that the Revised Edition shall be deemed to be and be withoutquestion in all Courts of Justice and for all purposes whatsoever the soleauthentic edition of the Legislative Enactments of Ceylon; and thePenal Code just like every other statute is published in the Revised Editionin the English language. If and when this situation is to be changed,that change can only be brought about by requisite means and notmerely by a declaration of the nature contained in section 2 of the OfficialLanguage Act. Unitl such a change is brought about it would lead toabsurdity if the declaration is construed to require that a new enactment
1 L. R. 6 Q. B. 1 at 27.
0 (1962) 63 N. L. R. 433.
S6ORDER OF COURT—iPht Quaon v. LiyanaQs and aihort
to amend existing statutes having effect in the English language most beframed in Sinhala. Could the Legislature for instance have providedby Act No. 1 of 1952 that some words is the Sinhala language creating-new offences axe to be inserted in seotioa 115 of the Penal Code ?
The only express provision in the Constitution which touches the matterof the language of our statutes is section 3S. That section requires thatthe enacting clause of every Act of Parliament shall be in the followingwords which are specified between quotation marks :
“Be it enacted by the Queen’s Most Excellent Majesty, by andwith the advice and consent of the Senate and the House ofRepresentatives of Ceylon in this present Parliament assembled, andby the authority of the same, as follows :— ”
If then it is decided that laws must be enacted in Sinhala it may wellbe that a Constitutional amendment passed in accordance with section29 (4) will be necessary. But even if the provisions of section 38 are notso fundamental, there are other reasons why we reach the conclusionthat the Official Language Act does not hind the Parliament of Ceylon.
The power conferred on Parliament by section 29 of the Constitutionto make laws is. as already stated, plenary and subject only to limitationsexpressed or arising by necessary implication. In the absence of anyspecific direction in the Constitution as to the language of a statute(other than section 38 relating to enacting clauses) it would be open inour opinion for Parliament to pass laws in any language which Parliamentmay choose. And even if it can be said that section 2 of the OfficialLanguage Act manifests some intention that Acts of Parliament mustbe written in Sinhala, Parliament has the undoubted power to legislateinconsistently with the provisions of pre-existing legislation. We musthold therefore that at the very least in the case of all Acts enacted after1st January 1961 in English, Parliament has merely exercised its rightto override any such intention as to the language of the law which mayhave been entertained at the time of the passing of the Official LanguageAct.
Eor the reasons stated we make order rejecting the pleas tenderedby all the Defendants.
(Sgd.) M. C. Sauso.ni,
(Sgd.) H. N. G. Fsknando,Puisne Justice.
(Sgd.) L. B. pB Suva.,
Pitas tendered, by all the defendant* a* to the jurisdiction of the Court rejected.
THE QUEEN v. D. J. F. D. LIYANAGE and others