065-NLR-NLR-V-65-THE-QUEEEN-v.-A.-D.-HEMAPALA.pdf
The Queen v. Hemapala
313
[In the Court of Criminal Aepeal]
~1963 Present: Basnayake C. J. (President), Kirat, I., and
Abeyesundere, J.
THE QUEEN v. A. X). HEMAPALAAppeal No. 230 of 1060, with Application No. 2S3S. C. 41—M. G. Horana, 27640
Privy Council—Right oj appeal thereto in criminal cases from Ceylon—Applicabilityto Ceylon of the judicial prerogative of the Queen of England—Position of Sove-reign of Ceylon—Ceylon (Constitution) Order in Council, 1946. as. 4, 25, 30, 33,36, 45—Ceylon Independence Ad, 1947, s. 1—Ceylon Independence Order inCouncil, 1947, a. 4—Royal Titles Act, 1953, s. 2—Royal Executive Powers andSeals Act, 1954, ss. 2, S, 9, 10—Proclamation of 23th May, 1953—Court ofCriminal Appeal Ordinance, ss. 5, 23.
A citizen of Ceylon does not have, since the coming into force of the CeylonIndependence Act and the Ceylon Independence Older in Council, a right toinvoke the prerogative power of the Sovereign of England in Council of enter-taining an appeal from the Courts of a British Colony in a criminal matter.The prerogative right of the Sovereign of England in Council to entertainappeals from Ceylon ceased on Ceylon becoming an independent country.
Where, in an appeal from a decision of the Court of Criminal Appeal, theJudicial Committee of the Privy Council, reversing the decision of the Court ofCriminal Appeal, quashed the conviction of the appellant, and the case wassent back by the Queen in Council with directions to the Court of CriminalAppeal to decide in its discretion whether there should be a new trial—
Held, that the Order in Council passed by Her Majesty in Council was onewhich She had no power to make in respect of Ceylon. The Court of CriminalAppeal had therefore no power, in obedience to that Order in Council, to ordera new trial, as the Order was not legal. Under the Court of Criminal AppealOrdinance, the Court of Criminal Appeal had no discretion to order a newtrial at the present stage. Nevertheless, the reversal of t he decision of theCourt of Criminal Appeal and the quashing of the appellant’s conviction wereunaffected by the present decision of the Court of Criminal Appeal, as thepresent decision could not affect past acts which have taken effect.
Appeal against a conviction in a trial before the Supreme Court.
Golvin R. de Silva, with S. S. Basnayake and P. 0. Wimalanaga, foraccused-appellant.—The British Sovereign continues to be the Sovereignof Ceylon too and orders made by her in the exercise of her prerogativepower have the force of law not by reason of any statute but by reasonof a right obtained derivatively and by reason of tradition.
13—LXV
a mn—i.ssfi numn
314
The Queen v. Bemapaia
In matters affecting their rights, her subjects can appeal to the Queenin her Council. However, this right of appeal is not confined to hersubjects, as evidenced in the case where an alien appealed to the PrivyCouncil in a case arising in India.
The Revised Legislative Enactments of Ceylon were brought intoforce after the attainment of Independence by Ceylon. It is note-worthythat Sections 333 and 334 of the Criminal Procedure Code, Section 23 ofthe Court of Criminal Appeal Ordinance ancl Section 40 of the CourtsOrdinance still recognise the undoubted right of appeal to Her Majesty.The phrase Her Majesty was not meant to connote merely a personbut an Institution. The prerogative of the Queen of England who is alsothe Queen of Ceylon, and the legality of her orders should be assumeduntil the contrary is shown.
[Abeyesitndere, J.—Is the right of appeal to the Privy Council aright given to the subjects of the Queen only ?].
To the extent that the Queen of England is Queen of Ceylon too theappellant is a subject of the Queen of England. The British NationalityAct (1948) of the British Parliament has express provision includingCeylon as one of the countries along with independent countries likeCanada, Australia, India, Pakistan and Ghana as countries affected byits provisions. However, it must be conceded that by reason of theoperation of the Ceylon Independence Act of 1948 which came intoforce before the British Nationality Act of the same year the latterwould not be a part of the law of Ceylon.
The Executive power in Ceylon is vested in Her Majesty the Queen andit is on her behalf that the Governor-General exercises it. Her Majestyis part of our Constitution. The Cabinet is collectively responsible toParliament and Parliament to the Queen through her representative. TheCabinet as such is not the body vested with the ultimate executive power.However, since the Parliament of Ceylon is possessed of supremelegislative power, it can legislate out of this situation.
One of the attributes of the Queen is that she is the fountain of Justice.Even the Judges of the Supreme Court are appointed by the Queen.
[Abeyesehstdebe, J.—Courts derive their powers from the Courts Ordi-nance. ….. Is Ceylon a territory of the Sovereign of England?]
Ceylon is a territory of the Queen of England just as England is butnot in the sense that the Government of England has authority overthe territory of England. The authority to legislate has been lost tothe Queen of England.
[Basnayaxe, C.J.—Has the Sovereign the ultimate judicial power?]
Right along from ancient feudal times that was the position. Thisauthority has been exercised in various forms—Orders in Council, LettersPatent, or Royal Charter.
The Queen v. Hemapala
315
Counsel referred also to the following decisions and statutory provisions:—Pitts v. La Fontaine (18S0) 6 A. C. 482 ; Performing Right Society Ltd. v.Urban District Council, Bray (1930) A. C. 396 ; Attorney-General forOntario v. Attorney-General for Canada (1947) A. C. 127, (1947) A. E. R.137 ; Gavin Gibson & Co. Ltd. v. Gibson (1913) 3 K. B. 379, 389; BritisyCoal Corporation v. King (1935) A. C. 500, 520 : Revised Edition of theLegislative Enactments Act, ss. 3 and 12 ; Royal Titles Act, s. 2 ; Ceylon(Constitution) Order in Council, 1946, ss. 36, 39, 45 ; InterpretationOrdinance, s. 2 (j).
A. C. Alles, Solicitor-General, with R. S. Wanasundere, CrownCounsel, for Attorney-General.—Elizabeth II, who is described in theRoyal Titles Act as Queen of Ceylon and of Her other Realms andTerritories and Head of the Commonwealth, is our Sovereign. She isat the same time Sovereign of the United Kingdom and of certain otherDominions. The term “Crown” or “Sovereign” is capable of more thanone meaning. It may mean the office or concept of Sovereign, it mayrefer to the person or it may refer to the Government.
In so far as the Sovereign of Ceylon is concerned—meaning the officeand concept of Sovereign—we have the same Sovereign as in the UnitedKingdom. The Governments, however, of the United Kingdom andCeylon are separate and distinct. Yide The Constitutional Documents—Ceylon Independence Act of 1947, Ceylon (Constitution) Order inCouncil, 1946, and the Defence and External Affairs agreement,particularly paragraph (1), the Government of Ceylon declare areadiness of Ceylon to adopt and follow the resolution of past imperialconferences ” and the item relating to the succession to the Throne andRoyal Title.
By the enactment of the Royal Titles Act, the Sovereign is given adescription with reference to Ceylon maintaining at the same time thefact of a co-existing sovereignty of the United Kingdom and someDominions. The resulting position is that Ceylon, the United Kingdomand some of the Dominions have a single Sovereign with different aspectand Titles.
The Royal Executive Powers and Seals Act was brought into operationonly this year—Yide also Jennings : Constitution of Ceylon, pages 16 to19, 137, 245.
The right of appeal to the Privy Council which existed prior to Indepen-dence continued after Independence. It could be justified on the existinglocal and imperial legislation and also on the basis of the prerogative—Vide Criminal Procedure Code, Section 334 ; Court of Criminal AppealOrdinance, Section 23 ; Courts Ordinance, Sections 39, 40, and 3 ; PrivyCouncil Appeals Ordinance : and the 1833 Judicial Committee Acts ofthe United Kingdom.
31tfBA&NAYAKE, C. J.—I'he <Ju«m v. Httnapulu
Regarding the prerogative, a subject in Ceylon can appeal to the Queenwho is also described as the Queen of Ceylon. Vide Nadan v. King (1926A.C. 482); British Coal Corporation v. King (1935 A.C. 500); Attorney-General v. K. D. J. Perera (1953 A.C. 200) where the Privy Council heldthat the subject in Ceylon has a right to appeal to the Queen in anymatter whether civil or criminal.
The Order in Council issued by the Queen is not a legislative Act butan executive or judicial act—Vide Hood Philips: Constitutional Law,page 233, and Wade and Philips : Constitutional Law, page 168.
Alternatively, the Judicial Committee is nothing but a Court to whichan appeal would lie and the original concept of a petition to the Queenhas undergone modification in the course of history—Vide 1935 A.C. 500,1947 A.C. 127; Hull v. Mckenna (1926) Irish Reports 402; Halsbury :Laws of England (3rd Edition) 374.
In answer to Court—The question of the Queen's succession neednot be considered in this case as—
{a) King George was considered de jure and ae facto as our Sovereign.
(5) After the accession of Queen Elizabeth the Second—
She authorised her uncle on commission to open our
Parliament.
She herself came and opened our Parliament.
Her succession was proclaimed in Ceylon and at the Palace of
St. James in the presence of the Dominion HighCommissioners including that of Ceylon.
In any event the definition of 1 King ’ and 1 Queen ’ in our law hasbeen introduced subsequent to Independence and according to law meansaccording to proper law.
Cur. adv. wilt.
October 15, 1963. Bashayakb, C.J.—
The appeal of the appellant Aiuthge Don Hemapala from his convictionfor murder was heard by a specially constituted Bench of five Judges ofthis Court and was dismissed on 11th December 1961 (64 N. L. R. 1).The question that arose for decision was whether the fact that the presid-ing Judge had directed the proceedings to be conducted in Sinhala whenthe appellant had elected to be tried by an English speaking jury vitiatedhis conviction. A majority of the Judges held that it did not. Theappellant asked for special leave from Her Majesty the Queen of Englandto appeal to Her from that decision and was granted special leave to
BASNAYAKE, C. J.—The Queen v. Bemapala
317
appeal by Order in Council dated 30th July 1962 (Appendix I). He alsoasked for and was, by Order in Council dated 11th April 1963 (AppendixIT),granted leave to prosecute his appeal in forma pauperis.
The appeal was heard in due course and on 27th May 1963 the JudicialCommittee delivered their reasons for the advice they proposed to tenderto Her Majesty (Appendix III)1. By Order in Council dated 30th May1963 (Appendix IV) the Queen in Council, while reversing the judgmentof this Court dated 11th December 1961 and quashing the appellant’sconviction, ordered this Court to decide in its discretion whether thereshould be a new trial. The questions we are called upon to decide are—
(а)whether we have power at this stage to direct a new trial, and
(б)if so, whether that power is conferred on this Court by the Court of
Criminal Appeal Ordinance, and
(c) if it is not, whether the Order of the Queen of England made withthe advice of Her Privy Council confers that power.
The right of appeal in criminal cases to His Majesty in Counoil (theexpression " His Majesty in Council ” is used herein with reference to theSovereign for the time being of England when acting with the advice ofHis or Her Privy Council) is one that His Majesty’s subjects in Ceylonenjoyed from the day Ceylon became a Crown Colony. His Majesty’ssubjects in England (which expression herein includes Scotland) donot enjoy the right of appeal to His Majesty in Council from thedecisions of the Courts in that country, whether civil or criminal, althoughthe Sovereign is regarded as the Fountain of Justice (vide Blackstone’sexposition in Appendix V). It is a right peculiar to His Majesty’s colonialsubjects and the right of His Majesty in Council to entertain such appealsin the case of Ceylon rested on prerogative of His Majesty in Council toentertain appeals from the Courts of His Colonies. The expression" colony ” is used herein in the sense in which it is defined in the EnglishInterpretation Act. The origin of the prerogative of appeal in respect ofthe colonies is not clear ; but Chitty [Chitty on Prerogative (1820 ed.)p. 29] states why such a power was necessary in the case of colonies.He states—
"… If the judicial superintending power over his colonies, &c.,by way of appeal, were not vested in the King, the law might be in-sensibly changed to the destruction of the superiority of the mothercountry. The King cannot give a direction to any Court to rehearany cause depending therein ; but rehearings are granted or denied byCourts of Equity, on petition of the parties grieved. ”
It is the prerogative of His Majesty in Council to entertain appealsfrom His colonial subjects in cases from the colonial courts and at thesame time it is the right of the colonial subjects to appeal to His Majesty
1 65 N. L. R. 121.
2*~B 13811 (11/63)
318
BASNAYA-iT-E, C. J.—The Queen v. Hemapaia
in Council in such cases. The constitutional progress of Ceylon until thecountry gained independence did not affect that light, because, despitethe increasing measure of internal self-government granted from time totime, Ceylon remained a oolony in respect of which Hjs Majesty in Councilhad power to legislate by Order in Council. The right is thereforedependent on the existence of the relationship of colonial subject andSovereign. Once that relationship is ended, the right also comes toan end.
Till May 1946 Ceylon was a oolony of the Sovereign of England and thepeople of Ceylon were His Majesty’s subjects although the Ceylon Govern-ment had almost complete control over its domestic affairs. In May 1946there was granted by Order in Council [The Ceylon (Constitution) Orderin Council, 1946] a constitution in a form not intrinsically different fromthe constitutions of countries which were classed as Dominions in theColonial Laws Validity Act, although the grant was by prerogativeOrder in Council and not by Act of Parliament as in the case of thosecountries. This grant of a further advance on the existing constitutionalpowers was preceded by a statement of policy by the British Governmenton Constitutional Beform published on 31st October 1945 (Appendix VI).As stated in its preamble, a direct outcome of the recommendations ofthe Commission referred to in the statement of policy was the Order inCouncil of 1946 (Appendix VH). The following year saw a radicalchange in the constitution that was granted in 1946. In December 1947there was enacted the Ceylon Independence Art 1947 and at the same timethere was promulgated the Ceylon Independence Order in Council 1947.Both instruments came into operation on 4th February 1948 which hassince been observed as the day of National Independence. The Indepen-dence Act contained two important provisions which have withmodification been inserted in subsequent enactments of the Parliament ofEngland granting independence to countries over which the Sovereignof that country and its Parliament had authority. Those provisions arefar-reaching. They read—
" 1.(1) No Act of Parliament of the United Kingdom passed on or
after the appointed day shall extend, or be deemed to extend, toCeylon as part of the law of Ceylon, unless it is expressly declared inthat Act that Ceylon has requested, and consented to, the enactmentthereof.
As from the appointed day His Majesty’s Government in theUnited Kingdom shall have no responsibility for the Government ofCeylon.
As from the appointed day the provisions of the First Scheduleto this Act shall have effect with respect to the legislative powers ofCeylon. ”
BASNAYAKE, C. J.—The Queen v. Eemapala
319
The most important change effected by the Independence Order in•Council is the cessation of the power of the Sovereign of England topromulgate prerogative Orders in Council in respect of Ceylon. Theprovision reads—
“ 4. The power of His Majesty, His Heirs and Successors, with
the advice of His or Their Privy Council—
{a) to make laws having effect in the Island for the purposes specifiedin sub-section (1) of section 30 of the Principal Order ; and
(6) to revoke, add to, suspend or amend the Principal Order or theAmending Orders, or any part of those Orders,
shall cease to exist. ’ ’
Section 30 of the Ceylon (Constitution) Order in Council 1946 (AppendixVUI) which reserved that power was revoked.
It would appear from the constitutional documents referred to abovethat on 4th February 1948 there ended not only the right of the Parliamentof England and of the Sovereign in Council of that country to makelaws binding on Ceylon, but also the responsibility of His Majesty’sGovernment in respect of this country. In other words Ceylon becameon 4th February 1948 a country no longer dependent on England orsubject to the Sovereign of that country. In brief an independentcountry as indicated in the short title of the legislative instrumentsdesigned to achieve that end. If it is necessary to relate the grant ofindependence to Ceylon to one of the accepted ways in which Britishsubjects can lose their nationality, the act can be regarded as'voluntaryabandonment by the Sovereign and Parliament of England of Britishterritory and sovereignty over the subjects therein. Instances of aban-donment in the past are rare, but are multiplying with the grant ofindependence to countries which were once dependent on England.
The present position of Ceylon is that it is an independent country likeany other with a monarch at its head. It is an equal partner in thatassociation of nations known as the Commonwealth of Nations. BeforeCeylon became independent, King George the Sixth was the Sovereign ofCeylon, and when it passed from subjection to independence, KingGeorge the Sixth of England was adopted as Ceylon’s Sovereign. On hisdemise and the succession to the throne of England of Elizabeth theSecond as Queen of England, Ceylon adopted her as Queen. Ourambassadors to foreign courts are accredited by Elizabeth the Secondas Queen of Ceylon. All our legislative enactments are enacted by Herwith the advice and consent of the Senate and the House of Represent-atives (s. 38 Order in Council), the Governor-General is appointed by Heron the advice of the Prime Minister of Ceylon (s. 4 Order in Counoil),and every Senator and every Member of the House of Representativesis by law bound to take an Oath of Allegiance to Her (s. 25 Order in Council).The executive power of the Island is vested in Her and is exercised on
320
BASNAYAKE, C. J.—The Queen v. Eemapaia
Her behalf by the Governor- General in accordance with the laws of thiscountry (s, 45). Ho Bill can become an Act of Parliament without Herconsent [s. 36 (1) Order in Council] which the Governor-General is em-powered to give in Her name or refuse as the case may be [s. 36 (2) Orderin Council] . Our law requires Her [s. 4 (2) Order in Council] to exerciseall Her powers, authorities and functions under the Ceylon (Constitution)Order in Council or any other law as far as may be in accordance with theconstitutional conventions applicable to the exercise of similar powers,authorities and functions in the United Kingdom by the Sovereign ofthat country. In order to bring out the fact that the Sovereign of Englandis Queen of this country, not in Her capacity as Queen of England, theRoyal Titles Act and the Royal Executive Powers and Seals Act wereenacted in 1953 and 1954 respectively. The first named Act provides—
“2. The assent of the Parliament of Ceylon is hereby given to theadoption by Her Majesty for use in relation to Ceylon of the style andtitles set out in the Schedule to this Act, in lieu of the style and titlesat present appertaining to the Grown, and to the issue by Her for thatpurpose, at the request of the Prime Minister of Ceylon, of Her RoyalProclamation under the Great Seal.
SCHEDULE
(Style and titles referred to)
* Elizabeth the Second, Queen of Ceylon and of Her other Realmsand Territories, Head of the Commonwealth
The Queen of Ceylon by a Proclamation dated 28th May 1953 adoptedthat title in the following terms :—
" By the QueenA Proclamation. ”
“ "Whereas by the Royal Titles Act, No. 22 of 1953, the assent ofthe Parliament of Ceylon was given to the adoption by Us, for use inrelation to Ceylon, of the Style and Titles set forth in the Schedule tothe said Act, in lieu of the Style and Titles at present appertainingto the Crown, and to the issue by Us for that purpose of our RoyalProclamation under the Great Seal:
We have thought fit, and We do hereby at the request of the PrimeMinister of Ceylon appoint and declare, that as far as convenientlymay be on all occasions and in all instruments wherein Our Styleand Titles are used in relation to Ceylon, Our Style and Titles shallhenceforth be accepted, taken and used, as the same are set forth inthe Schedule to the said Act, that is to say—
' Elizabeth the Second, Queen of Ceylon and of Her other Realms
and Territories, Head of the Commonwealth V*
BASNAYAKE, C. J.—The Queen v. Hemapala321
The Royal Executive Powers and Seals Act which came into operationon 20th August 1954 helps to emphasise the fact that, although thesame person is Sovereign of both England and Ceylon, the Sovereignof this country derives no powers from the Sovereign of England (s. 2),and that she enjoys only such powers as are conferred .on Her by ourlaws. The provision of a “ Royal Signet of Ceylon ” (s. 8} of whichthe Prime Minister of Ceylon is the keeper (s. 9) and which the PrimeMinister is empowered to affix to such instruments bearing the Sove-reign’s Sign Manual and the counter-signature of the Prime Minister asthe Sovereign may from time to time by Proclamation specify as instru-ments to which the Royal Signet shall be affixed (s. 10) further enhancesthe fact that, though the same person is the Sovereign of both Ceylonand England, the rights, powers and prerogatives of each office aredistinct and that the rights, powers and prerogatives of the office of theQueen of England are not enjoyed by the Queen of Ceylon. The caseof one person being Sovereign of two different countries with separatepowers in respect of each country is not without precedent. WilliamIV was both King of England and King of Hanover, but as King ofHanover he did not enjoy over the Hanoverian subjects the prerogativesof the King of England. On his demise the succession to the throne ofEngland was determined according to the law of England and thesuccession to the throne of Hanover was determined according to thelaw of Hanover. The role of being Sovereign of two independentnations at the same time is not difficult so long as there is agreementbetween the two nations. Rut if perchance they disagree, and the•disagreement results in a rupture of diplomatic relations between them,then the Sovereign will be faced with a difficult situation.
Now the prerogative of Her Majesty in Council to entertain appealsfrom colonial courts being a prerogative that appertains to Her as the•Sovereign of a colony and in respect of decisions of colonial courts, andthe right of appeal to Her Majesty in Council being a right that isenjoyed by Her colonial subjects, the prerogative cannot be exercisedwhen the relationship of Sovereign and colonial subject comes to anend. In this connexion it would be useful to cite the following passagesfrom Chalmers’ Opinions :—
“ …. the true correlatives are sovereignty, and subjection:
if the subjection be withdrawn, and so admitted, the sovereignty isgone : if the sovereignty be removed, then, is the subjection gone ; andthe subjection being gone, the people, owing no subjection, are nolonger subjects; for they are all correlatives, which cannot exist,without each other.” {Chalmers, Vol. II, p. 391).
“When the sovereignty of those provinces thus ceased to be in theking of England, the subjection of the people, within the same, alsoceased.” (Chalmers, Vol. II, p. 393).
“ When the king, acting in pursuance of a solemn trust, derivedfrom the constitution, renounced all claim of government over you,and of course released your subjection, the king thereby signified the
322
BASNAYAKE, 0. J.—Quean v, ffamarpala-
assent of the nation, tha t you should be no longer subjects, but aliens;for in making every treaty, the king, as trustee for the nation, bindsthe nation, by his diplomatic acta, and fear nU jvbet fnubra.”(Chalmers, Vol. II, p. 412).
The Queen of Ceylon has no Privy Council and our law does not enableHer to make decisions or perform aDy acts with the advice of thePrivy Council of the Queen of England. Our Queen does not enjoy thejudicial prerogative of the Queen of England in respect of Her colonies.As stated above, even the Queen of England has no right to entertainappeals from the Courts of that country. The right to entertain appealsfrom the Courts is not a necessary attribute of Sovereign power. It iswell established that no appeal lies unless conferred expressly or bynecessary implication. The Queen of Ceylon has therefore no right toentertain appeals from our Courts. It is unthinkable that the Queenof England would claim that Ceylon is yet a colony in respect of whichShe enjoys the judicial prerogative. It is equally unthinkable thatthe Queen of England would do any act that would in the slightestdegree impair the independence of Ceylon. When the Queen of Englandgave up her right to legislate for Ceylon by Order in Council, it must bepresumed that She gave up Her prerogative without reservation, andthat She gave up Her prerogative right to promulgate any Order inCouncil having the force of law in Ceylon, for it is an established ruleof construction of legal instruments that the greater includes the less.Apart from that, the right to make an Order in Council embodying theadvice of the Privy Council being one that exists only in respect ofcolonies, that right cannot be exercised in respect of a country which isno longer a colony and is no longer subject to the suzerainty of theSovereign of England. The resulting position then is that on theattainment of independence the prerogative right of the Sovereign ofEngland to entertain appeals ceased when Ceylon ceased to be a colony.
The fact that Canada [s. 106 of the Supreme Court Amendment Act1949 (13 Geo. A7!, c. 37)], India [The abolition of the Privy CouncilJurisdiction Act 1949—10th October 1949], Pakistan [Privy Council(Abolition of Jurisdiction) Act 1950—1st May 1950], and South Africa[Privy Council Appeals Act, Ho. 16 of 1959 (which substituted for section106 of the South Africa Act, a new section abolishing appeals to thePrivy Council—12th April 1953)] abolished by legislative measure theright of appeal to His Majesty in Council does not make it necessarythat this country should do likewise. The laws of no two countries ofthe Commonwealth are the same. So that the action taken by onecountry affords no precedent for the other. The question whether thejudicial prerogative of the Sovereign of England would continue untilit is abolished has to be answered by reference to the laws of each country.In this connexion the provision made in the Malayan Constitution bywhich the Malayan King, to whom appeal from the Supreme Courtof that country lies, is able to obtain the advice of the Judicial Committee
BASNAYAKE, C. J.-—The Queen v. Hemapala
323
of the Privy Council of the Sovereign of England cails for notice(Appendix IX). As respects Ceylon, there is no need to abolish a rightthat has ceased to exist, for there is nothing to abolish.
The Order in Council passed by Her Majesty in Council is one whichShe has no power to make in respect of Ceylon. We have therefore nopower, in obedience to that Order in Council, to order a new trial, evenif we were so minded, as the order is not legal. Under the Court ofCriminal Appeal Ordinance we have no discretion to order a new trialat this stage. That power may be exercised only in an appeal to thisCourt when exercising its appellate jurisdiction (s. 5 Court of CriminalAppeal Ordinance).
This judgment is limited to the questions whether a citizen of Ceylonhas, since the coming into force of the Ceylon Independence Act and theCeylon Independence Order in Council, a right to invoke the prerogativepower of the Sovereign of England in Council of entertaining an appealfrom the Courts of a British Colony in a criminal matter, and whetherthe prerogative right of the Sovereign of England in Council to entertainappeals from Ceylon ceased on Ceylon becoming an independent country.
Before we part with this judgment we think we should not omit tostate that the recognition, when Ceylon was a British colony, in theStatutes of Ceylon (Appendix X), of the prerogative right of His Majestyin Council to entertain appeals from the Ceylon Courts, does not havethe effect of creating a right of appeal by implication and continuingit even after Ceylon has ceased to be a colony and the judicial prerogativeof the Sovereign has ceased in respect of this country. When the veryfoundation of the prerogative to entertain such appeals is gone, thoseprovisions have no application to what does not exist.
The reversal of the decision of the Court of Criminal Appeal and thequashing of the appellant’s conviction are unaffected by our presentdecision, as our present decision cannot affect past acts which have takeneffect.
As we have no power to direct a new trial, we order that the appellantbe discharged from custody, if he is still in custody, or be released frombail, if he has given bail in consequence of our order of 27th Septemberlast admitting him to bail.
Accused-appellant discharged.
APPENDIX 5The 30th day of July, 1962
WHEREAS there was this day read at the Board a Report from the JudicialCommittee of the Privy Council dated the 17th day of July, 1962, in the wordsfollowing, viz. :—
“ WHEREAS by virtue of His late Majesty King Edward the Seventh’s Orderin Council1 of the 18th day of October 1909 there was referred onto this Committeea humble Petition of Aluthge Don Hemapala in the matter of an Appeal fromthe Court of Criminal Appeal Ceylon between the Petitioner and Your MajestyRespondent setting forth : that the Petitioner prays for special leave to appeal
324..
BASNAYAKLE, C. J,—The Queen v. Htmapcda
to Your Majesty in Council from the Judgment and Ordex of the Court of CriminalAppeal of Ceylon dated the 25th October 1961 whereby the Petitioner’s Appealagainst his conviction of murder and sentence to death on the 20th day of Decem-ber 1960 by the Supreme Court at Kahitara was dismissed : And humbly prayingYour Majesty in Council to grant him special leave to appeal against the J udgmentand Order of the Court of Criminal Appeal of Ceylon dated the 25th October 1961and for fur ther or other relief:
“ THE LORDS OP THE COMMITTEE in obedience to His late Majesty'ssaid Order in Council have taken the humble Petition into consideration andhaving heard Counsel in support thereof and in opposition thereto Their Lordshipsdo this day agree humbly to report to Your Majesty as their opinion that leaveought to be granted to the Petitioner to enter and prosecute bus Appeal againstthe Judgment and Order of the Court of Criminal Appeal of Ceylon dated the 25thday of October 1981 :
“ AND Their Lordships do further report to Your Majesty that the properofficer of the scud Court of Criminal Appeal ought to be directed to transmit tothe Registrar of the Privy Council without delay an authenticated copy underseal of the Record proper to be laid before Your Majesty on the hearing of theAppeal upon payment by the Petitioner of the usual fees for the same.”
HER MAJESTY having taken the said Report into consideration was pleasedby and with the advice of Her Privy Council to approve thereof and to order as itis hereby ordered that the same be punctually observed obeyed and carried into•execution.
Whereof the Governor-General or Officer administering the Government of Ceylonfor the time being and all other persons whom it may concern are to take noticeand govern themselves accordingly.”
APPENDIX 1
ORDER IN COUNCIL MAKING CONTINUING ORDER DIRECTING THAT ALLAPPEALS TO HIS MAJESTY IN COUNCIL SHALL BE REFERRED TO THE
JUDICIAL COMMITTEE
1909 No. 1228
Ai the Court at Buckingham Palace, the 18th day of October 1909.
Present:
The King's Most Excellent Majesty in Council
Whereas by Section 9 of the Judicial Committee Act, 1844 it is enacted “ thatin case any Petition of Appeal whatever shall be presented addressed to Her Majestyin Council and. such Petition shall be duly lodged with the Clerk of the Privy Councilit shall be lawful for the Judicial Committee to proceed in hearing and reportingupon such Appeal without any Special Order in Council referring the same to themprovided that Her Majesty in Council shall have by an Order in Council in the monthof hTovember directed that all Appeals shall be referred to the said Judicial Committeeon which Petitions may be presented to Eer Majesty in Council during the twelvemonths next after the making of such Order and that the said Judicial Committeeshall proceed to hear and report upon all such Appeals in like manner as if each suchAppeal had been referred to the said Judicial Committee by a Special Order of HerMajesty in Council. Provided alwayB that it shall be lawful for Her Majesty inCouncil at any time to rescind any General Order so made and in case of such Orderbeing so rescinded all Petitions of Appeal shall in the first instance be preferred toHer Majesty in Council and shall not be proceeded with by the said JudicialCommittee without a Special Order of reference ” :
And whereas by the Interpretation Act, 1SS8 it is enacted that “ in this Act andin every other Act whether passed before or after the commencement of this Actreferences to the Sovereign reigning at the time of the passing of the Act or to theCrown shall unless the contrary intention appears be construed as references to theSovereign for the time being " :
And whereas His Majesty was pleased by His Order in Council dated the 21stday of November 1908 and made under and by virtue of the provisions of the saidSection 9 of the Judicial Committee Act, 1844, to order that all Appeals or Com-plaints in the nature of Appeals on which Petitions might be presented to HisMajesty in Council during the twelve months next after the date of the said Ordershould be referred to the Judicial Committee and that the said Judicial Committee
BASNAY AKFj, C. J.—The Queen v. Hemapala
3*25
should proceed to hear and report upon all such Appeals or Complaints in like manneras if each such Appeal had been referred to the said Judicial Committee by a SpecialOrder of His Majesty in Council and that the said Order should remain in force forthe space of twelve months from the date thereof unless TTis Majesty should bepleased previously to rescind the same :
And whereas by Section 5 of the Appellate Jurisdiction Act, 1908 it is enactedthat “ His Majesty may from time to time by Order in Council make a GeneralOrder directing that all Appeals shall be referred to the Judicial Committee of thePrivy Council until the Order is rescinded and Section 9 of * The Judicial CommitteeAct, 1S44 ’ shall have effect as if any such General Order for the time being in forcewere substituted in the first proviso to that Section for the Annual Order thereinreferred to and the time for which the Order remains in force were substituted forthe twelve months next after the making of the General Order ’’ and that “ theexpression * Appeals ’ in this Section means Appeals on Petitions presented to HisMajesty in Council and includes any Complaints in the nature of Appeals and anyPetitions in the matter of Appeals ” :
Now therefore His Majesty is pleased by and with the advice of His Privy Councilto order and it is hereby ordered that His Majesty:s said Order in Council dated the• 21st day of November 1908 be and the same is hereby rescinded and that all Appeals. on which Petitions may be presented to His Majesty in Council after the date of this•Order shall be referred to the Judicial Committee of the Privy Council until HisMajesty shall be pleased to rescind this Order and that the said Judicial Committeeshall proceed to hear and report upon all such Appeals in like manner as if each suchAppeal had been referred to the said Judicial Committee by a Special Order of HisMajesty in Council.
Whereof all persons whom it may concern are to take notice and govern them-selves accordingly.
APPENDIX II
The 11th day of April, 1963
WHEREAS there was this day read at the Board a Report from the Judicial‘Committee of the Privy Council dated the 27th day of February 1963 in the wordsfollowing, viz.,
“ WHEREAS by virtue of His late Majesty King Edward the Seventh’s Orderin Council of the 18th day of October 1909 there was referred unto this Committeea humble Petition of Aluthge Don Hemapala in the matter of an Appeal from theCourt of Criminal Appeal Ceylon between the Petitioner Appellant and YourMajesty Respondent (Privy Council Appeal No. 30 of 1962) setting forth thaton the 30th day of July 1962 Your Majesty in Council granted the Petitionerspecial leave to appeal against the Judgment of the Court of Criminal Appeal ofCeylon dated the 25th day of October 1961 whereby the Petitioner’s Appeal wasdismissed against his conviction of murder and the sentence of death passed uponhim by the Supreme Court at Kalutara on the 20th day of December, 1960 : thatthe Petitioner now prays for leave to prosecute his said Appeal in forma pav/peris :that the Petitioner has been informed by bis friends and relatives who havehitherto provided monies for his defence that no further monies are available forthe prosecution of his Appeal: that the Petitioner is not worth £100 in the worldexcepting his wearing apparel and that he is unable to provide sureties : Andhumbly praying Your Majesty in Council to grant the Petitioner leave to prosecutethe Appeal in forma pauperis :
“ THE LORDS OF THE COMMITTEE in obedience to His late Majesty’ssaid Order in Council have taken the humble Petition into consideration and TheirLordships do this day agree humbly to report to Your Majesty as their opinionthat leave ought to be granted to the Petitioner to prosecute his Appeal in formapauperis.”
HER MAJESTY having taken the said Report into consideration was pleasedby and with the advice of Her Privy Council to approve thereof and to order as it ishereby ordered that the same be punctually observed obeyed and carried into•execution.
Whereof the Governor-General or Officer administering the Government of Ceylonfor the time being and all other persons whom it may concern are to take noticeand govern themselves accordingly.”
326
BASKASTARE, C. J.—The Queen v. Hamapala
APPENDIX HI
Privy Council Appeal S’®, 8® of 106827 th May, 1963
This was an appeal in forma pauperis by special leave from the judgment and orderof the Court of Criminal Appeal of Ceylon dated 25th October 1961 whereby theappellant’s appeal against bis conviction and sentence of 20th December, 1960 bythe Supreme Court at Kalufcara waa dismissed. The appellant had been foundguilty of murder and sentenced to death. He had together with one Babbu Singhobeen indicted on a charge that on 27 th June 1960 he hacl murdered Mahawattage DonC&rolis and that the said Babbu Singho had abetted the murder. On their committalfor trial by the Magistrate’s Court the accused elected to be tried by an Englishspeaking jury under section 166B of the Criminal Procedure Code. The Code givesan accused person a right to be tried by a jury drawn from any one of three panels.The Fiscal is charged with the duty of preparing three lists of persons who, as wellas having certain property or income qualifications can respectively speak read andwrite (a) the English language, (b) the Sinhalese language (c) the Tamil language.The accused elected to be tried by a jury drawn from the panel the members ofwhich could ‘ speak, read and write the English language Such a jury was em-panelled accordingly. But the learned Judge who was presiding at the trial there-upon interrogated the jury in these terms :—
“ May I ask you, gentlemen of the jury, whether you are sufficiently conversantwith Sinhala to be able to understand well the questions put to witnesses andanswers given by them? ”
Foreman : “ Yes, My Lord.”
“ And also address of Counsel if it is made in Sinhala?”
Foreman: “Yes.”
“ Mr Taxnpoe (who was Defence Counsel), are you able to follow the proceed-ings in Sinhala?”
Mr. Tampoe : “ Yes, My Lord.”
“ You are at liberty to put any question in English at any stage of the caseif you so desire and you will also be able to follow the translation which the inter-preter will make for the benefit of the stenographer.”
The Crown Counsel opened his case in Sinhala. Thereafter the testimony of thewitnesses was taken. The first of these'gave his evidence in English. But appa-rently the evidence of other witnesses was given in Sinhalese and though it wouldnecessarily be translated into English for the Record it is not clear that it was donein such a way as to ensure that the jury heard the translation. It was assumedthat the closing address of the Crown Counsel was in Sinhala ; the Record was silentas to whether Counsel for the defence addressed in English or Sinhala. The summingup by the learned Judge was in English.
The appellant was found guilty of murder and sentenced to death ; the secondaccused was acquitted and discharged.
On appeal from the conviction it was contended that since the accused had electedto be tried by an English speaking jury the oonduct of the case partially in Sinhalesewas a contravention of the Criminal Procedure Code. The Court of CriminalAppeal—comprising five Judges—were not altogether in agreement. Basnavake C.J.and L. B. de Silva J. held that there had been an essential departure from the wellestablished Rules of procedure—that the trial had not been ‘ according to law ’ andaccordingly that the conviction should be quashed and a new trial ordered. Weera-sooriya J. and Gunasekara J. held the trial to have been irregular but there to havebeen no substantial miscarriage of justice and that the appeal should therefore bedismissed. H. N. G. Fernando J. held there had been no irregularity and that theappeal should bs dismissed. In the result the appeal was dismissed by the majorityof three to two. Special leave to appeal to Her Majesty in Council was grantedon 30th July 1962.
The crucial question is whether the aooused having elected to be tried by anEnglish speaking jury the conduct of the trial so contravenedt he Criminal Proce-dure Code as to vitiate the trial or at the least to amount to a miscarriage of justice.The Criminal Procedure Code provides (section 165B) that an accused person havingelected, he “ shall be bound by and may be tried according to bis election, subjecthowever in all cases to the provisions of section 224 ”. Section 224 (1) enacts that“ the jury shall be taken from the panel elected by the accused unless the Courtotherwise directs There was no direction otherwise.
BASNAYAKE, C. J.—The Queen v. Bemapala
327
The Court of Criminal Appeal Ordinance in a set of provisions dealing with appealsagainst conviction enacts in section 5 that—
“ The Court of Criminal Appeal on any such appeal against conviction shallallow the appeal if they think that the verdict of the jury should be set aside onthe ground that it is unreasonable or cannot be supported having regard to theevidence, or that the judgment of the court before which the appellant was con-victed should be set aside on- the ground of a wrong decision of any question oflaw or that on any ground there was a miscarriage of justice, and in any othercase shall dismiss the appeal: Provided that the court may, notwithstandingthat they ore of opinion that the point raised in the appeal might be decided infavour of the appellant, dismiss the appeal if they consider that no substantialmiscarriage of justice has actually occurred
A provision in similar terms to this enactment is to be found in many jurisdictions,e.g. in the English Criminal Appeal Act of 1907. There have been many cases inwhich its application has been discussed.
It has often been held that the adoption of a procedure other than that authorisedby the Code under which an accused person is being tried can constitute a miscar-riage of justice ; but it is a well established principle that this Board will not recom-mend Her Majesty to review or interfere with the course of Criminal proceedingsunless there has been such a disregard of the procedure laid down as to occasionsubstantial injustice. The question is whether there was, in the trial of the appel-lant, such a departure from the normal or proper procedure as to amount to a mis-carriage of justice.
Their Lordships do not think that the trial in this case can be said to have beena nullity because of the course followed, but there are good grounds for holding thatthe way in which it was conducted may have resulted in withdrawing from theaccused a protection which the Code was designed to secure. As was said by LordGoddard in R. v. Neal (1949) 2 K. B. 590 : 1949 2 All E. R. 438
“ There is no doubt that to deprive an accused person of the protection givenby essential steps in criminal procedure amounts to a miscarriage of justice andleaves the Court no option but to quash the conviction ”.
The provisions of the Criminal Procedure Code under which the appellant was triedcontemplate that where there has been an election to be tried by an English speakingjury (as was the case) the trial will be conducted throughout in the English language.Though the evidence of the witnesses who testified in Sinhala was translated for thepurposes of the Record this may not have been heard by the jury, or all of them,and as to the addresses of counsel it is not certain that they were translated at all.The course the learned Judge took was based upon an interrogation of the juryconducted by himself. He accepted an assurance from the foreman that the juryunderstood Sinhala. But this falls short of establishing that each and every oneof the jury had such an understanding. There was a complete absence of any sortof assent by the accused to the course being followed.
There are provisions in the Code which emphasise the importance of the trialbeing had in a language which the jury is able to understand, e.g., section 225 tinderwhich objection may be taken to a juror on the ground “ (c) of his inability tounderstand the language of the panel from which the jury is drawn ” and section229 which authorises where “ it appears that any juror iB unable to understand thelanguage in which the evidence is given ”, the substitution of a new juror or thedischarge of the jury. The assurance given by the foreman of the jury to whichthe other members of the jury gave no more than a mute assent does not, in theirLordships’ opinion provide a sufficiently solid foundation upon which to assumethat all the members of the jury were in fact able to understand and appreciateevidence not given in English and the addresses of the defence counsel. Accordinglytheir Lordships hold that there having been a departure from the provisions of theCode with no certainty that such a departure did not operate to the disadvantageof the appellant the case must be regarded as one in which there has been amiscarriage of justice necessitating the quashing of the conviction.
Ordinarily in such a case as this where a conviction has to be quashed and thesentence set aside because of procedural irregularities a new trial would be directed.But their Lordships think that the discretion as to whether there should be a newtrial after so great a lapse of time should be exercised by the Court of CriminalAppeal of Ceylon. Their Lordships therefore do no more as they have done, thanhumbly to tender to Her Majesty advice that the appeal should be allowed, thedismissal of the appeal by the Court of Criminal Appeal of Ceylon be reversedleaving that Court to exercise a discretion whether there should be a new trial.
32S
BASNAYAID5, C. J.—The Queen v. Bemapala
APPENDIX IV
Tbs 8«fe day o? Slay, 1963
WHEREAS there was this day read at the Board a Report from the JudicialCommittee of the Privy Council dated the 27th day of May 1963, in the wordsfollowing, viz. ;—
“ WHEREAS by virtue of His late Majesty King Edward the Seventh’s Orderin Council of the 18th day of October 1909 there was referred unto this Committeethe matter of an Appeal from the Court of Criminal Appeal Ceylon betweenAlutbge Don Hemapala Appellant and Your Majesty Respondent (Privy CouncilAppeal No. 30 of 1962) and likewise the humble Petition of the Appellant settingforth shat on the 17th day of October 1960 the Appellant was indicted on acharge of murder by causing the death of Mahawattage Don Carolis being anoffence punishable under Section 296 of the Penal Code of Ceylon : that on the 7 thJuly 1960 the Appellant was charged in the Magistrate Court at Horana withmurder and the Appellant having elected to be tried by a jury drawn from anEnglish speaking panel of jurors was committed for trial by the Supreme Court ofCeylon : that the said indictment was tried in the Supreme Court of Ceylonand a jury drawn from an English speaking panel and the hearing was conductedin the Sinhale- language and on the 20th December 1960 the Appellant wasconvicted of murder and sentenced to death : that the Appellant appealed to theCourt of Criminal Appeal in Ceylon and on the 25th October 1961 that Courtdismissed the Appeal; that on the 30th July 1962 by Order of Your Majestyin Council the Appellant was granted special leave to appeal to Your Majesty inCouncil: that on the 11th April 1963 by Order of Your Majesty in Council theAppellant was granted leave to prosecute his said Appeal in forma pauperis :And humbly praying Your Majesty in Council to take this Appeal into considera-tion and to reverse alter or vary the Judgment of the Court of Criminal Appealof Ceylon dated the 25th day of October 1961 and for further or other relief :
“ THE LORDS OP THE COMMITTEE in obedience to His late Majesty’ssaid Order in Council have taken the Appeal and humble Petition into considerationand having heard Council on behalf of the Parties on both sides Their Lordshipsdo this day agree humbly to report to Your Majesty as their opinion that thisAppeal ought to be allowed and the Judgment of the Court of Criminal AppealCeylon dated the 25th day of October 1961 reversed leaving that Court to exercisea discretion whether there should be a new trial.”
HER MAJESTY having taken the said P.eport into consideration was pleased byand with the advice of Her Privy Council to approve thereof and to order as it ishereby ordered that the same be punctually observed obeyed and carried intoexecution.
Whereof the Governor-General or Officer administering the Government of Ceylonfor the time being and all other persons whom it may concern are to take notice andgovern themselves accordingly.”
APPENDIX V
IU. Another capacity, in which the king is considered in domestic affairs is,as the fountain of justice and general conservator of the peace of the kingdom. Bythe fountain of justice, the law does not mean the author or original, but only thedistributor. Justice is not derived from the king, as from his free gift; but he is thesteward of the public, to dispense it to whom it is due. He is not the spring, butthe reservoir, from whence right and equity are conducted, by a thousand channels,to every individual. The original power of judicature, by the fundamental principlesof society, is lodged in the society at large: but, as it would be impracticable totender complete justice to every individual, by the people in their collective capacity,therefore every nation hae committed that power to certain select magistrates, who,with more ease and expedition, can. bear and determine complaints; and inEngland this authority has immemorially been exercised by the king or hissubstitutes. He therefore has alone the right of erecting courts of judicature ; for,though the constitution of the kingdom hath intrusted him with the wholeexecutive power of rhe laws, it is impossible, as well as improper, that he shouldpersonally carry into execution this great and extensive trust: it is consequentlynecessary that courts should be erected, to assist him in exeouti g this power ; andequally necessary that, if erected, they should be erected by his authority. Andhence it is, that all jurisdictions of courts are either mediately or immediatelyderived from the crown, their proceedings run generally in the king’s name, theypass under his seal, and are executed by his officers.
B ASNAYAKF,, C. J.-—The Queen v. Hemapala
329
It is probable, and almost certain, that in very early times, before our constitutionarrived at its full perfection, our kings in person often heard and determined causesbetween party and party. But at present, by the long and uniform usage of manyages, our kings have delegated their whole judicial power to the judges of theirseveral courts; which are the grand depositaries of the fundamental laws of thekingdom, and have gained a known and stated jurisdiction, regulated by certainand established rules, which the crown itself cannot now alter but by act of parlia-ment. And, in order to maintain both the dignity and independence of the judgesin the superior courts, it is enacted by the statute 13 Will. IU.c.2, that their com-missions shall be made (not, as formerly, durante bene placito, but) quamdiu bene segesserint, and their salaries ascertained and established ; but that it may be lawfulto remove them on the address of both houses of parliament.
(Blackstone’s Commentaries, 1836 ed., Yol. I, pp. 266, 267 & 268}
APPENDIX VI
(Ceylon Government Gazette Extraordinary No. 9,480 of October 31, 1945)
CEYLON
Statement of Policy on Constitutional Reform
The present Constitution of Ceylon, which is based on the Executive Committeesystem of the London County Council, was set up in 1931 as a result of the recom-mendations of a Commission presided over by the Earl of Donoughmore. TheGovernor has certain reserved powers, the more important of which are in respect ofDefence, External Affairs and the rights of minorities : and a considerable measureof self-government in matters of internal civil administration rests with a Legislaturevery largely elected territorially on the basis of universal adult suffrage.
Since the introduction of this Constitution, there has been continuous pressure,especially but not solely from the Sinhalese majority community, for the grant of afurther measure of self-government. On the 26th May 1943, Bis Majesty’s Govern-ment issued a Declaration on the reform of the Constitution, which reads as follows:—
“(1) The post-war re-examination of the reform of the Ceylon Constitution,to which His Majesty’s Government stands pledged, will be directedtowards the grant to Ceylon by Order of His Majesty in Council, of fullresponsible Government under the Crown in all matters of internal civiladministration.
His Majesty’s Government will retain control of the provision, construction,
maintenance, security, staffing, manning and use of such defences,equipment, establishments and communications as His Majesty’sGovernment may deem necessary for the Naval, Military and Air securityof the Commonwealth, including that of the Island, the cost thereofbeing shared between the two Governments in agreed proportions.
Ceylon’s relations with foreign countries and with other parts of the British
Commonwealth of Nations will be subject to the control and direction ofHis Majesty’s Government.
The Governor will be vested with such powers as will enable him, if necessary,
to enact any direction of His Majesty’s Government in regard to matterswithin the scope of paragraphs 2 and 3 of this Declaration ; and hisassent to local measures upon these matters will be subject to reference toHis Majesty's Government.
The present classes of Reserved Bills in the Royal Instructions will be
largely reduced under a new Constitution. Apart from measuresaffecting Defence and External Relations, it is intended that theseshall be restricted to classes of Bills which—
(а)relate to the Royal Prerogative, the rights and property of His
Majesty’s subjects not residing in the Island, and the trade andshipping of any part of the Commonwealth ;
(б)have evoked serious opposition by any racial or religious community
and which in the Governor’s opinion are likely to involveoppression or unfairness to any community;
(c) relate to currency.
330
BASNAYAK35, Q. S.—The Quean e. Eanapala
The limitations contained in the preceding paragraph will not be deemed to
prevent the Governor from assenting in the King’s name to any measurerelating to, and conforming with, any trade agreements concluded withthe approval of His Majesty’s Government by Ceylon with other partsof the Commonwealth. It is the desire of His Majesty’s Governmentthat the Island’s commercial relations should be settled by the con-clusion of agreements, and His Majesty’s Government will be pleased toassist in any negotiations with this object.
The framing of a Constitution in accordance with the terms of this
Declaration will require such examination of detail and such precision ofdefinition as cannot be brought to bear so long as the whole of theenergies of the Service and other Departments of His Majesty’s Govern-ment remain focussed on the successful prosecution of the war. HisMajesty’s Government will, however, once victory is achieved, proceedto examine by suitable Commission or Conference such detailed propo-sals as the Ministers may in the meantime have been able to formulatein the way of a complete constitutional scheme, subject to the clearunderstanding that acceptance by His Majesty’s Government of anyproposals will depend —
First, upon His Majesty’s Government being satisfied that they arein full compliance with the preceding portions of this Statement.
Secondly, upon their subsequent approval by three-quarters of allMembers of the State Council of Ceylon, excluding the Officers of Stateand the Speaker or other presiding Officer.
In their consideration of the problem. His Majesty’s Government have very
fully appreciated and valued the contribution which Ceylon has madeand is making to the war effort of the British Commonwealth and theUnited Nations, and the co-operation which, under the leadership of theBoard of Ministers and the State Council, has made this contributioneffective.”
It will be seen that the declared object of His Majesty’s Government in consideringfurther constitutional reform is the grant to Ceylon of full responsible governmentunder the Crown in all matters of internal civil administration. The principalsubject, which will continue to be reserved to His Majesty's Government are Defence,External Relations and safeguards ensuring fair arrangements in Ceylon for theminority communities.
In accordance with paragraph 7 of the 1943 Declaration, Ceylon Ministerswere asked to frame a Constitution for the Island, which would then be examinedby a Commission or Conference. The Ministers completed their task of drafting a•Constitution in February 1944, but owing to a disagreement with His Majesty’sGovernment as regards the scope of the Commission or Conference which was toexamine their Scheme, they withdrew it in August 1944. The difficulty arose fromthe fact that they claimed the Declaration to mean that the Commission orConference was to be confined entirely to the examination of the question whetherthe constitutional Scheme was in conformity with the 1943 Declaration, whileHis Majesty’s Government took the view that the Commission or Conference shouldhave wider terms of reference enabling it to examine the Constitutional Schemefrom all angles, and especially that of its suitability in relation to the minorities,and to discuss it with the latter.
Notwithstanding the Ministers’ withdrawal of then Scheme, therefore, HisMajesty’s Government proceeded in September 1944 bo announce the appointmentof a Commission with terms of reference as follows :—
“ To visit Ceylon in order to examine and discuss any proposals for constitu-tional reform in the Island which have the object of giving effect to the Declara-tion of His Majeety’B Government on that subject dated the 26th May, 1943 ;and, after consultation with various interests in the Island, including minoritycommunities, concerned with the subject of constitutional reform, to adviseHis Majesty’s Government on all measures necessary to attain that object.”
The Commission, under the Chairmanship of Lord Soulbury, visited Ceylon fromDecember 1944 until April 1045, and its Report was published on the 9th October.
The Constitution recommended by the Soulbury Commission may be brieflysummarised as follows, the reference in brackets being to the 8oolbury Commission'sReport:—
The Government of Ceylon would consist of a Governor-General, with thereserve powers set out in the 1848 Declaration, and a Cabinet, with anUpper and Lower House.
BASNAYAKE, C. J.—The Queen v. Remapala
331
(6) Universal adult suffrage would be retained on the present basis. (Paragraph223)
(So far as suffrage of immigrants into Ceylon is concerned, the Commissionregards this as a matter of internal civil administration, and proposesthat the Ceylon Government ahould be granted the right to determinethe future composition of its population with full powers of control inrespect of immigration.)
A Delimitation Commission would be appointed by the Governor-General in
his discretion to define new electoral districts. (Paragraph 278)
The Lower House would be designated the House cf Representatives and
would consist of 95 elected members together with six members whowould be nominated by the Governor-General.(Members of the Lower
House would be known as Memberrs of Parliament.) (Paragraph 321)
•(e) The Upper House would be designated the Senate, and would consist of 30members, of whom 15 would be elected by the Lower House and 15 nomi-nated by the Governor-General acting in his discretion. (Paragraph 310)
.(/) There would be a Cabinet with Ministers possessing full Cabinet responsibilityin all matters of internal affairs in Ceylon, subject to the reservationscontained in paragraphs 2, 3 and 5 of the 1943 Declaration. (Paragraph330)
■(g) There would be a Prime Minister appointed by the Governor-General. ThePrime Minister would hold the portfolios of External Affairs and Defence.[Paragraphs 325, 330 (ii), 360 (xi)]
h) Appointments to the Public Services would be made on the recommendationof a Public Services Commission to be nominated and appointed by theGovernor-General in his discretion (i.e., after consultation with the PrimeMinins ter, but without being bound to follow his advice). (Paragraph392)
•(i) There would be a Judiciary in which the Chief Justice and Judges of theSupreme Court would be appointed by the Governor-General acting inhis discretion with a Judicial Services Commission to advice him in regardto subordinate judicial appointments. (Paragraph 407)
The safeguards for minority communities include the proposals for a Second■Chamber and for the Public Services Commission. The first can be expected toprovide an instrument for impeding precipitate legislation and for handling inflam-matory issues in a cooler atmosphere (paragraph 298); while the Public Services•Commission is designed as an impartial and authoritative body, free from the taintof partisanship, on whose advice the Governor-General will exercise his powers ofappointment to the Public Service and the promotion and discipline of Public■Officers. (Paragraphs 374, 379, 389)
The Constitution provides the following safeguards for minority interests((European and Asiatic):—
Classes of reserved Bills will inolude any Bills which relate to the Royal
Prerogative, the rights and property of His Majesty’s subjects not residingin the Island, and the trade or transport or communications of any partof the Commonwealth. (Paragraph 332)
The Classes of reserved Bills will also include any Bill which has “ evoked
serious opposition by any racial or religious community and which, inthe Governor-General’s opinion, is likely to involve oppression or unfairnessto any community ”. (Paragraph 332)
•(c) In regard to immigration into Ceylon, the Report recommends that Billsrelating to the prohibition or restriction of immigration will not be regardedas coming within the category of Bills which the Governor-General willreserve for the signification of His Majesty’s pleasure, but if any suchBill contains a provision regarding the right of re-entry of persons normallyresident in the Island at the date of the passing of the Bill by the Legis-lature, which, in the opinion of the Governor-General, is unfair or unreason-able, the Governor-General must be required to reserve that Bill.(Paragraphs 332 (ii) (b) and 236)
id) The Soulbury Commission’s Report further recommends that, in relation tothe further class of Bills relating to external affairs which are to comewithin the category of reserved Bills, there shall be excluded from thecategory of Bills relating to external affairs “ any Bill relating solely tothe prohibition or restriction of the importation of or the imposition ofimport duties upon any class of goods, provided that such legislation isnot discriminatory in character. [Paragraph 332 (ii) (e£)l
332
J3 ASNAYAJxE, C. J.—The Queen v. Smnopota
(«) The Report further recommends that the Order in Council shell provide thatthe Ceylon Parliament “ shall not make aay lav to prohibit or restrictthe free exercise of any religion; or to altar the constitution of any religiousbody ” except at the request of the governing authority of that religiousbody (Paragraph 334), and “ shall not make any law rendering personsof any community or religion liable to disabilities or restrictions to whichpersons of other communities or religions are nob made liable, or conferupon persons of any community or religion any privileges or advantageswhich are not conferred on persons of other communities or religions.”[Paragraph 242 (iii)]
The powers reserved by Has Majesty’s Government under the 1943 Declarationare bo be secured in the Commission’s proposals in the following ways :—
Defence. Any Bills on this subject must be reserved by the Governor-
General. [Paragraphs 332 (i) and 349 et seq.]
External Affairs. Bills in this category are also to be reserved. [Paragraphs
332 (ii), 337 and 33S]
In both these subjects the Governor-General will have power’ himself to enactany measures necessary to comply with the directions of His Majesty’s Government.(Paragraph 337)
Currency. Legislation must be reserved by the Governor-General. [Para-
graph 332 (iii)]
Trade, transport and communications affecting any part of the Empire.
Any Bill of an extraordinary nature or importance which may prejudicethese interests must be reserved. (Paragraph 332 (iv)]
The principal reaction of the Sinhalese majority community to a Consti-tution on these lines has been to take the line that the 1943 Declaration can inthe post-war situation no longer be regarded as a satisfactory basis for a newConstitution for Ceylon. Issued as it was during the war, it received a limiteddegree of acceptance by Ministers., principally as an improvement on the existingConstitution which would enable Ceylon to put forward her full war effort more effici-ently. Now that the war is over, however, in their view the principal reason for theretention by Has Majesty’s Government of such extensive reserved powers, especiallyin regard to Defence and External Affairs, is no longer operative. Moreover,since Dominion Status as soon as circumstances permit has been promised to Burma,the Ministers claim that Ceylon, in view of her large-scale and valuable war effort,should now be advanced to the status of a Dominion. By April 1945 the CeylonState Council had already passed by a considerable majority, including minorityMembers, the so-called Sri Lanka Bill, which framed a Constitution on Dominionlines for Ceylon and immediate Dominion status is now the object of the Sinhalesemajority and their supporters. This demand, they say, need not prejudice thelegitimate interests of His Majesty’s Government in regard to Defence, providedthat these can be safeguarded by an agreement to be reached between HisMajesty’s Government in the United Kingdom and the Government of Ceylon bywhich His Majesty’s Government would be vested with all necessary powers inregard to Defence. The acceptance of a claim for Dominion status would involvethe question of the transference of Ceylon affairs from the Colonial to the DominionsOffice.
The reaction of the Sinhalese majority and their supporters to the individualprovisions of the Soulbury Constitution may be briefly summarised as follows :—
The Second Chamber is regarded aa unnecessary and undemocratic by animportant section.
The Governor-General’s Powers as laid down in the Soulbury recommendationswould establish a system of diarchy on oertain subjects which would give riseto continued difficulty in prentice.’ The solution to this is the conclusion of aseparate agreement not appearing in the Constitution between His Majesty’sGovernment in the United Kingdom and the Government of Ceylon, by which ineffect the normal constitutional procedure would be set aside for alimited purpose.
Minority Safeguards.—No objection is raised to the provision safeguardingminorities as a whole, but as stated above opposition has been expressed to theproposed Second Chamber which was designed by the Commission to be one ofthe principal minority safeguards.
The principal minority community in Ceylon is the Tamil community, thetwo m»Jn di visions of which, Ceylon Tamil and Indian Tamil, together form abouta quarter of the total population of the Island, While the Sinhalese regard theSoulbury recommendations aa not going far enough, the Tamils regard them as goingtoo far. In their view, no system of weighted representation combined with powers-of the Governor to reserve Bills can, in practice, provide proper safeguards against
BASNAYAKE, C- J.—The Queen v. HemapaUi
333
the overwhelming power which is to be put into the hands of the Sinhalese com-munity, who will be in a permanent majority in the future Legislature. Moreover,discrimination against minorities occurs in practice not 30 much overtly in theform of discriminatory legislation, us in less obvious administrative acts. Theonly satisfactory method of providing for this situation, in the view of the Tamil— minority, is the system known as “balanced representation” (described in para-graphs 254-264 of the Soulbury Report), under which half the total number ofseats in the Legislature would be reserved to the Sinhalese majority community,the remaining half being divided in agreed proportion between the minorities, thestatutory division of seats being extended to the Cabinet, in which each communitywould have an allotted representation.
The scheme of balanced representation is not, however, supported by theremaining minority communities, who are primarily anxious that they shouldsecure adequate representation in whatever new Legislature is set up.
DECISIONS
His Majesty’s Government are in sympathy with the desire of the peopleof Ceylon to advance towards Dominion Status and they are anxious to co-operatewith them to that end. With this in mind His Majesty’s Government have reachedthe conclusion that a Constitution on the general lines proposed by the SoulburyCommission (which also conforms in broad outline, save as regards the SecondChamber, with the constitutional scheme put forward by the Ceylon Ministersthemselves) will provide a workable basis for constitutional progress in Ceylon.
Experience of the working of Parliamentary Institutions in the British Common-wealth has shown that advance to Dominion Status has been effected by modifi-cation of existing constitutions and by the establishment of conventions whichhave grown up in actual practice.
Legislation such as the Statute of Westminster has been the recognition of con-stitutional advances already achieved rather than the instrument by which theywere secured. It is therefore the hope of His Majesty’s Government that the newconstitution will be accepted by the people of Ceylon with a determination so towork it that in a comparatively short space of time such Dominion Status will beevolved. The actual length of time occupied by this evolutionary process mustdepend upon the experience gained under the new constitution by the people ofCeylon.
The main features of the Constitution under which Ceylon will be governedduring this period will follow the general lines of the recommendations of theSoulbury Commission, with the following principal modifications :—
(а)Life of the Upper House.—The provisions as regards the life of the Upper
House will be changed so that one-third of the Membership will retireafter two years, and a further third after four years, the arrangementsproposed by the Soulbury Commission being followed for their replacement.
(б)Reserved Powers of the Governor.—In place of the recommendations of the
Soolbory Commission that the Governor shall be empowered to enactspecial Ordinances dealing with Defence and External Affairs. HisMajesty’s Government will retain the power to legislate for Ceylon byOrder in Council, and the Governor will be provided by Order in Councilto be brought into operation by proclamation in case of a public emergencywith powers to make regulations for purposes such as those specified inthe Emergency Powers (Defence) Act, 1939. During the operation ofthe new Constitution the present title of Governor -will uot be altered,and the channel of communication between the Government of Ceylonand His Majesty’s Government in the United Kingdom will remain asat present through the Governor and the Secretary of State for theColonies, who will retain his present ministerial responsibility in regardto Ceylon Affairs.
Brc hdown of the Constitution.—Any contingency arising in this respect will
be covered by the general power of His Majesty’s Government to legislatefor Ceylon by Order in Council which will include, if necessary, suspensionof the Constitution.
Shipping.—The Ceylon Government will be empowered to establish and
regulate shipping services, both coastal and overseas, provided that noaction is taken without the concurrence of His Majesty’s Government-in the United Kingdom, which may be interpreted as subjecting theshipping of other members of the Commonwealth to differential treatment.
334
HAS NAY A K K!, C. J.—The Queen v. Hemnpalu
(ic) Public Service-*.—The period of exercise of the right of retirement of certainclasses of officers specified in paragraph 372 (ii) of the Soul bury Reportwill be reduced from three to two years from the date of the meeting ofParliament under the new Constitution ; and the exerciae of the specialright of retirement with compensation for low of career will not extend toofficers appointed to the Public Services on agreement for a limited periodof years.
The question of the Three-quarters Majority.
In Section 7 of the 1943 Declaration Hie Majesty’s Government made itclear that acceptance of any constitutional proposals put forwarded by the CeylonMinisters would depend upon the subsequent adoption of such proposals by tlireo-quaxters of the members of the State Council of Ceylon, excluding the Officers ofState and the Presiding Officer. This provision was inserted because the l!)43Declaration contemplated the adoption of a constitution worked out by the Ministersand did not specifically require that they should consult minority interests.
This condition was thus attached in the past to constitutional proposals to beput forward by the Ceylon Ministers and Hi3 Majesty’s Government have decidednot to insist upon the acceptance of tile constitution now proposed by the SoulburyCommission (after full con3idtabion with minority interests), by so large a proportionof the State Council as three-quarters, though they earnestly hope that all thosewith the future interests of Ceylon at heart will co-operate by giving their supportto the new constitution now offered as a foundation upon which may be built ufuture Dominion of Ceylon. His Majesty’s Government will take into accountthe mews expressed by the State Council and the number of those in that Councilwho vote in favour of adopting the new constitution.
APPENDIX Vir
WHEREAS by the Orders in Council set out in the First Schedule to this Orderprovision is made for the constitution of a State Council for the Island of Ceylon.
AND WHEREAS in the years 1944 and 1945 a Commission was appointed byHis Majesty’s Government under the chairmanship of the Right HonourableHerwald, Baron Soulbury, O.B.E., M.C., to visit the Island of Ceylon in order toexamine and discuss proposals for constitutional reform, and the said Commissionduly visited the Island and made a report to His Majesty’s Government:
AND WHEREAS a Statment of Policy on Constitutional Reform in Ceylon waspresented to Parliament by His Majesty’s Government in the month of October,1945 :
AND WHEREAS paragraph 10 of the said Statement of Policy contained thefollowing decision ;
t: His Majesty’s Government are in sympathy with the desire of the people ofCeylon to advance towards Dominion status and they are anxious to co-operatewith them to that end. With this in mind, His Majesty’s Government havereached the conclusion that a Constitution on the general lines proposed by theSoutbury Commission (which also conforms in broad outline, save as regards theSecond Chamber, with the Constitutional scheme put forward by the CeylonMinisters themselves) will provide a workable basis for constitutional progress inCeylon.
“ Experience of the working of Parliamentary institutions in the BritishCommonwealth has shown that advance to Dominion atatu-s has been effected bymodification of existing constitutions and by the establishment of conventionswhich have grown up in actual practice.
“ Legislation such as the Statute of Westminster has been the recognition ofconstitutional advances already achieved rather than the instrument by which theywere seemed- It is therefore the hope of His Majesty’s Government that the newconstitution will be accepted by the people of Ceylon with a determination so towork it that in a comparatively short space of time suoh Dominion statuB will beevolved. The actual length of time occupied by this evolutionary process mustdepend upon the experience gained under the new constitution by the people ofCeylon ” :
AND WHEREAS, having regard to the matters aforesaid, it is expedient to revokethe said Orders in Council and to make other provision in lieu thereof:
(Government Gazette Extraordinary No. 9,664 of 17th May, 1946)
BASNAYAKE, C. J.—The Queen v. Hemapala
335
APPENDIX VIII
30. (1) His .Majesty, His Heirs and Successors, with the advice of His or TheirPrivy Council, may from time to time make such laws as may appear to Him orThom to be necessary—
for the defence of any part of His Majesty’s dominions (including the Island)
or any territory under His Majesty’s protection or any territory in whichHis Majesty has from time to time jurisdiction, or for securing and main-taining public safety and order and supplies and services in case of publicemergency; or •
for regulating the relations between the Island and any foreign country or
any part of Hia Majesty's dominions or any territory as aforesaid.
Any law made in pursuance of the provisions of subsection (I) of this Sectionmay provide for the making of rules, regulations, orders and other instruments forany of the purposes for which such laws are authorised by this Section to be made,and may contain such incidental and supplementary provisions as appear to HisMajesty in Council to be necessary or expedient for the purposes of the law.
No law made in. pursuance of the provisions of subsection (I) of this Sectionshall impose any charge on the revenues or funds of the Island or regulate the impor-tation of goods into or the exportation of goods from the Island, except to give effectto any agreement to which the Government of the Island is a party.
His Majesty hereby reserves to Himself, His Heirs and Successors power,with the advice of His or Their Privy Council, to revoke, add to, suspend or amendthis Order, or any part thereof, as to Him or Them shall seem fit.
('Ceylon Government Gazette Extraordinary No. 9,564 of May 17, 1963.)
APPENDIX IX
131. (1) The Yang di-Pertuan Agong may make arrangements with Her Majestyfor the reference to the Judicial Committee of Her Majesty’s Privy Council ofappeals from the Supreme Court; and, subject to the provisions of this Article,an appeal shall lie from that Court to the Yang di-Pertuan Agong in any case inwhich such an appeal is allowed by federal law or by clause (2), and in respect ofwhich provision for reference to the said Committee is made by or under the enact-ments regulating the proceedings of the said Committee.
Until Parliament otherwise provides, an appeal is allowed under this Articlein the following cases, that is to say :—
(o) in the case of any decision from which an appeal from the Supreme Court ofthe Federation would have been entertained by Her Majesty in Council(with or without special leave) immediately before Merdeka Day ; and
(6) in the case of any decision as to the effect of any provision of this Constitution,including any opinion pronounced on a reference under Artiole 130.
Any appeal under this Article shall be subject to such conditions as to leaveor otherwise as may be prescribed by federal law or by or under the enactmentsregulating the proceedings of the Judicial Committee of Her Majesty’s Privy Council
On receiving from Her Majesty’s Government in the United Kingdom thereport or recommendation of the said Committee in respect of an appeal under thisArticle, the Yang di-Pertuan Agong shall make such order as may be necessaryto give effect thereto.
(The Federation of Malaya Independence Order in Council, 1957).
APPENDIX X
Court of Criminal Appeal Ordinance.—
23- Nothing in this Ordinance contained may or shall take away or abridge theundoubted right and authority of Her Majesty to admit or receive any appeal fromany judgment, decree, sentence or order of the Court of Criminal Appeal or theSupreme Court on behalf of Her Majesty or of any person aggrieved thereby in anycase in which, utul subject to any conditions or restrictions upon or under which,Her Majesty may be graciously pleased to admit or receive any such appeal.
336
BASNAYAKK, 0. J.—The Queen v. Semopola
Criminal Procedure Code.—
Nothing herein contained may or can take away or abridge the undoubtedright and authority of Her Majesty to admit or receive any appeal from any judgment,decree, sentence or order of the Supreme Court or any criminal court on behalf ofHer Majesty or of any person aggrieved thereby in any case in which and subjectto any conditions or restrictions upon or under which Her Majesty may be graciouslypleased to admit or reoeive any such appeal.
The Supreme Court and all courts from which an appeal shall be taken inany criminal matter shall in all cases of appeal to Her Majesty conform to, execute,and carry into immediate effect such judgments and orders as Her Majesty in Councilshall make thereupon in such manner and by such procedure as any originaljudgment, decree, or order of such court can or may be executed.
Courts Ordinance.—
In all cases of appeal allowed by the Supreme Court or by Her Majesty,Her heirs, and successors, such court shall, ou the application and at the costs of thaparty or parties appellant, certify and transmit to Her said Majesty, Her heirs, andsuccessors, in Her or their Privy Council a true and exact copy of all proceedings,evidence, judgments, decrees, and orders bad or made in such causes so appealed,so far as the same have relation to the matter of appeal; such copies to be certifiedunder the seal of the said court.
In all cases of appeal to Her Majesty, the Supreme Court and the originalcourt from which any such appeal was first taken shall conform to, execute, andcarry into immediate effect such judgments and orders as Her Majesty in Councilshall make thereupon, in such manner as any original judgment or decree of suchcourt can or may be executed.
Appeals (Privy Council) Ordinance.—
3. From and after the commencement of this Ordinance the right of parties tocivil suits or actions in the Supreme Court to appeal to Her Majesty in Councilagainst the judgments and orders of such court shall be subject to and regulated by—
(«) the limitations and conditions prescribed by the rules set. out in the Schedule,or by such other rules as may from time to time be made by Her Majestyin Council; and
(b) such general rules and orders of court as the Judges of the Supreme Courtmay from time to time make in exercise of any power conferred upon themby any enactment for the time being in force.