060-NLR-NLR-V-64-THE-QUEEN-v.-D.-J.-F.-D.-LIYANAGE-and-others.pdf

Provided that "where the Minister considers it impracticable tocommence the use of only the Sinhala language for any official purposeimmediately on the coming into force of this Act, the language orlanguages hitherto used for that purpose may be continued to be soused until the necessary change is effected as early as possible beforethe expiry of the thirty-first day of December, 1960, and, if suchchange cannot be effected by administrative order, regulations maybe made under this Act to effect such change.”
This Act became law on 7th July 1956, and on that same day theappropriate Minister published a notification in the Gazette—(see Govern-ment Gazette Extraordinary, No. 10,949 of 7th July 1956)—in the followingterms:—
“ By virtue of the powers vested in me by the proviso to section 2of the Official Language Act No. 33 of 1956,1, Solomon West BidgewayDias Bandaranaike, Prime Minister, being the Minister in charge ofthe subject of the said Act, do hereby declare that where any languageor languages has or have hitherto been used for any official purpose,such language or languages may be continued to be so used until thenecessary change is effected in accordance with the provisions of theaforesaid section. ”
It is common ground that no regulations have been made as permittedby this Act, and Mr. Wikramanayake contended that, as the time limitpermitted by the proviso has now passed, the proviso itself has now-ceased to have any force. He argued that the transitory provisionsthemselves must cease on the expiry of the thirty-first day of December1960 and the use of the language prescribed by section 2 as the oneofficial language which meant the only official language must prevailover the use of any other language.
It may be mentioned here that Mr. Wikramanayake did not contendthat section 2 warranted the proposition that Sinhala became on andafter 1st January 1961 the only language in which the acts of all thefunctions of Government in this country could have been or can beperformed. He was content for the purpose of this case to argue thatit was the intention of the legislature to confine the operation of section 2to official acts in the sense of acts of officials as distinguished from actsof the legislature or acts done in court proceedings. The learnedAttorney-General himself submitted that the expression “ official ” insection 2 signified no more than authorised fcir official use, but he reliedon the absence of any provision in Act No. 33 of 1956 in respect of theconsequences of a failure to use the Sinhala language as the only official
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language as indicative of the intention of the legislature deliberatelyto refrain from providing any sanction in the event of such a failure.He submitted, further, that the legislature recognised that the changecould not be effected immediately and that a period of transition wasnecessary, but that no limit was placed by the Act on the duration ofthe period of transition. He was compelled to advance the argumentthat the effect of the proviso was to retain the period of transition untila change is in fact effected.
Relying upon certain observations contained in the judgment ofBowen L.J. in The Queen v. Justices of County of London and LondouCounty Council'1, he submitted that the expression “ Before the expiryof the thirty-first day of December 1960 ” is nothing more than a counselof perfection involving no consequences if the counsel is not heeded,and that the proviso in effect permitted the Minister to ensure that thelanguage or languages used up to the date of the enactment of Act No. 33of 1956 may be continued to be so used until the necessary change iseffected, although the intention and direction of the legislature wasthat it be effected as early as possible. He argued that the Act mustbe read, as all enactments are, subject to their not being made absurdby matters which never could have been within the calculation orconsideration of the legislature, and that if two possible interpretations. can be placed of which one is likely to bring about a mischievous resultwhile the other is conducive to peace, order and good government, thecourt must lean towards the latter interpretation.
It appears to us unnecessary to pronounce on the merits of theserespective contentions. Even if one were to assume the correctness ofMr. Wikramanayake’s contention that on and after 1st January 1961official acts of officials could have been or can be performed only in theSinhala language, as English is still admittedly the language of theCourt, the communication by the Minister to the Court by documentsmade out in English of the direction and nomination of Judges by himis, in our opinion, a sufficient compliance with the existing law. Weare therefore unable to sustain the additional objection and, accordingly,overrule it.
We can now turn our attention to the main objections which havebeen already specified. Although stated in varying forms by the severalcounsel for the defendants they raise in substance the unconstitutionalityof certain provisions of the Criminal Law (Special Provisions) Act, andare designed to obtain from this Court a declaration that Sections 8 and 9of that Act which relate to the powers of the Minister of Justice to issuerespectively a direction that persons accused of certain offences be triedbefore the Supreme Court at Bar by three Judges without a jury andto nominate those three Judges are ultra vires the powers of the Legislatureas granted by the Ceylon (Constitution) Order in Council, 1946. It willbe convenient to deal with the alleged invalidity of the power to issue
1 L. R. (1893) 2 Q. B. at 491.
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a direction separately from the alleged invalidity of the power tonominate as the relevant considerations applicable appear to ns to differmaterially in the two cases.
First, as to the direction. Section 8 of the Criminal Law (SpecialProvisions) Act provides as follows :—
“ Any direction issued by the Minister of Justice under Section 440a. of the Criminal Procedure Code shall be final and conclusive, andshall not be called in question in any Court, whether by way of Writor otherwise. ”
This objection to the power of the Minister conferred on him by Section440a of the Criminal Procedure Code (as now amended by Section 4 ofAct No. 1 of 1962) to direct that these defendants be tried before theSupreme Court at Bar by three Judges, although outlined by counselfor all the defendants, was finally persisted in only by Mr. Ponnambalam.He pointed to the history of Section 440a, and explained that while theCode always contained provision—Section 216—whereby the ChiefJustice may in his discretion order that any trial before the SupremeCourt be a Trial at Bar by jury before three Judges, it was only afterthe religious riots of 1915 that the Legislature introduced provisionfor Trial at Bar without a jury, and that until the introduction of the 1946Constitution the power to direct such a Trial at Bar rested with theGovernor. The reason for the introduction into our law of the systemof trial without jury in cases which up to that time had been triableby jury was understandable as the chances of ensuring an unbiassedjury at times when public feeling is profoundly disturbed, whatever bethe cause, are considerably lessened. Mr. Ponnambalam was inclinedto question whether the Governor himself could have been grantedthat power, but it seems to us quite unnecessary to go into that questionhere. He certainly argued that the substitution of the Minister of 'Justice in place of the Governor in 1947 was not competent. Thisargument is, in our opinion, sufficiently repulsed by a reference toSection 88 of the Constitution Order in Council, 1946, itself, whichembodied the following transitory provisions relating to the modificationof existing laws :—
88.—“ (1) ” The Governor may by Proclamation at any time beforethe first meeting of the House of Representatives under this Ordermake such provision as appears to him necessary or expedient, inconsequence of the provisions of this Order, for modifying, adding to,
• or adapting the provisions of any written law which refer in whateverterms to the Governor, the State Council, the Board of Ministers, theOfficers of State, a Minister, an Executive Committee or a publicofficer, or otherwise for bringing the provisions of any "written lawinto accord with the provisions of this Order or for giving effect thereto.
-—(2) Every Proclamation under “ subsection (1) of this section shallhave the force of law and may be amended, added to or revoked byfurther Proclamation within the period specified in that subsection.”
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Acting under Section 88 the Governor by Proclamation of 18th Septem-ber 1947 published in Government Gazette Extraordinary No. 9773 ofSeptember 24, 1947 directed the substitution for the word “ Governor ”in Section 440a of the words " Minister of Justice ” . It would be whollyunprofitable to attempt to assess, as Mr. Ponnambalam invited us to do,whether the Minister of Justice could have been so substituted for theGovernor because the paramount law, the Constitution itself, empoweredthe Governor to modify, add or adapt the provisions of any law “ asappears to him necessary or expedient. ” In view of the consistent inter-pretation language such as this has received in recent times in Courtsof the highest authority, it is now too late in the day to argue that,when the Legislature confers power on an individual by employingexpressions such as “ as appear to (the designated individual) necessary ”or “ as (the designated individual) considers sufficient ”, that is not enoughwarrant to constitute such designated individual the sole judge of whatis necessary or sufficient. See, for instance, the Privy Council decision inJRoss-Clunis v. Papadopoullos l. Nor do we think that by itself the factthat we have assembled to hear this case in pursuance of the directionmade by the Minister has the effect of constituting us a special Court orTribunal and not the Supreme Court. We need only refer to the admit-tedly sole previous instance after the introduction of the 1946 Constitutionof a Trial at Bar held before the Supreme Court by three Judges withouta jury, viz. The Queen v. Theja Gnnawardene a, where the Court statedthat “ the circumstance that the Minister purported to direct that anInformation shall be tried before the Supreme Court at Bar by threejudges without a jury does not, in our opinion, have the effect that aBench of three judges which assembles to hear the Information ceasesto be the Supreme Court and becomes a different tribunal created bythe Minister. ”
Another argument for invalidating Section 8 (an argument whichextended in respect of Section 9 as well) advanced by Mr. Ponnambalamwas based on the contention that the Legislature of this country notbeing sovereign it was competent to a Court to examine legislation todecide whether it was actually for the peace, order, and good governmentof the country, and, if it was not, to pronounce it void. Section 29 (1)of the Order in Council provides that “ subject to the provisions of thisOrder, Parliament shall have the power to make laws for the peace,order, and good government of the Island. ” Such a power has beenheld “ to authorise the utmost discretion of enactment for the attain-ment of the objects pointed to ”, and a Court will not inquire whetherany particular enactment of this character does in fact promote thepeace, order or good government of the Colony—see Chenard and Co. v.Joachim Arissol3. Mr. Ponnambalam sought to read Section 29 (1) asa limiting clause whereas it appears to us clearly as an empoweringclause. Cases decided in Ceylon or other countries of the BritishCommonwealth at a time when the Colonial Laws Validity Act applied
1 L. R. (1958) A. C. at 559.. * (1954) 56 N. L. R. 193 at 205.
8 L. R. (1949) A. C. at 132.
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would be without application today.. To agree with the. submissionmade by learned counsel would be to negative the Sovereignty of Parlia-ment which in this country is now limited only in the manner set outin the other sub-sections of Section 29. To extend the scope of judicialreview beyond that would appear to us to place in the Courts a newpower unrecognized by the Constitution at the expense of a power vestedin Parliament by the Constitution. We find ourselves unable to upholdany of the arguments raised by Mr. Ponnambalam in order to impugnSection 8 of Act No. 1 of 1962.
What we have stated above do not, however, dispose of all the objec-tions centering round the direction that a Trial at Bar be held by threeJudges without a jury. Counsel for the 19th defendant has raised theobjection that, even assuming that the power conferred on the Ministerto issue a direction is intra vires the powers of the Legislature under theConstitution or is not in conflict with them (since it was a power thatexisted even before the Order in Council of 1946 was made by His Majestyin Council), malafides of the Minister in making the particular directionin this case vitiates it.
We had intimated to learned counsel that evidence to establish theexistence of malafides in the Minister of J ustice would have been permittedto be led only if he could have satisfied us that such evidence was relevantand admissible. The learned Attorney-General has, in respect of thisquestion, brought to our notice a decision in an English c/ise, undoubtedlyof the highest authority, which appears to us to be an effective bar to■ our sustaining this particular objection outlined on behalf of the 19thdefendant. No attempt was made on behalf of the defendants todistinguish this authority in any way and it affords a complete answerto the point raised. We refer to the case of Smith v. East Elloe RuralDistrict Council,1 where the House of Lords was called upon to considerthe interpretation to be placed on paragraph 16 of Part IV of Schedule Iof the Acquisition of Land (Authorisation Procedure) Act, 1946, whichwas in the following terms :—
“ Subject to the provisions of the last foregoing paragraph,a compulsory purchase order or a certificate under Part III of thisSchedule shall not, either before or after it shall be confirmed, madeor given, be questioned in any legal proceedings whatsoever …. ”
The House of Lords held, by a majority, that the jurisdiction of the .Court was ousted by reason of the plain prohibition in paragraph 16.Viscount Simonds, who was one of the judges comprising the majority,—at p. 750—expressed himself thus :— **
** My Lords, I think that anyone bred in the tradition of the lawis likely to regard with little sympathy legislative provisions. forousting the jurisdiction of the Court, whether in order that the subjectmay be deprived altogether of remedy or in order that his grievance
1 Jr. B. (195G) A. Q. 736.
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may be remitted to some other tribunal. But it is our plain dutyto give the words of an Act their proper meaning and, for my part,
I find it quite impossible to qualify the words of the paragraphin the manner suggested …. What is abundantly dear is thatwords are used which are wide enough to cover any kind of challengewhich any aggrieved person may think fit to make. I cannot thinkof any wider words. Any addition would be mere tautology. But,it is said, let those general words be given their full scope and effect,yet they are not applicable to an order made in bad faith. But,My Lords, no one can suppose that an order bears upon its face theevidence of bad faith. It cannot be predicated of any order that ithas been made in bad faith until it has been tested in legal proceedings,and it is just that test that paragraph 16 bars. ”
On the same point, Lord Radcliffe, another of the judges who comprisedthe majority, stated—at p. 769 :—
“ At one time the argument was shaped into the form of sayingthat an order made in bad faith was in law a nullity and that, conse-quently, all references to compulsory purchase orders in paragraphs15 and 16 must be treated as references to such orders only as hadbeen made in good faith. But this argument is in reality a playon the meaning of the word nullity. An order, even if not madein good faith, is still an act capable of legal consequences. It bearsno brand of invalidity upon its forehead. Unless the necessaryproceedings are taken at law to establish the cause of invalidity andto get it quashed or otherwise upset, it will remain as effective forits ostensible purpose as the most impeccable of orders. And thatbrings us back to the question that determines this case : Has Parlia-ment allowed the necessary proceedings to be taken ? ”
We hold that all the objections taken in respect of the direction issued bythe Minister fail, and that Section 8 of Act Np. 1 of 1962 is intra viresthe Legislature.
Next, as to the nomination. Much of the argument before us wascentred on an attack on Section 9 of Act No. 1 of 1962 as being ultra viresthe Legislature’s power to make law by a simple majority. It is a novelprovision of law raising in this case an interesting but difficult questionof law.
Section 9 may conveniently be reproduced here :—
9.“ Where the Minister of Justice issues a direction under Section
440a of the Criminal Procedure Code that the trial of any offenceshall be held before the Supreme Court at Bar by three Judgeswithout a jury, the three Judges shall be nominated by the Ministerof Justice, and the Chief Justice if so nominated or, if he is not sonominated, the most senior of the three judges so nominated, shallbe the president of the Court.
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The Court consisting of the three Judges so nominated shall, forall purposes, be duly constituted, and accordingly the constitution ofthat Court, and its jurisdiction to try. that offence, shall not becalled in question in any Court, whether by way of writ orotherwise. ”
The decision in. Smith v. East Elloe Rural District Council (supra) wouldbecome applicable even in regard to the attempt to impugn the nomina-tion under Section 9 only if this section is itself intra vires the Legislature.It has not been disputed by the Crown that this Court has, notwith-standing the wording of Section 9, jurisdiction to consider whether the..section is ultra vires. In order to found this attack all counsel jwhoaddressed us on behalf of the defendants contended that the Constitution
. I r
of Ceylon recognised a separation of powers of Government. We werereferred to the Constitutions of many countries, notably those ofj theUnited States of America, Australia, Canada, South Africa and India.On the other hand, the Attorney-General contended that no separationof powers exists under our Constitution, and that, if a separation, ofpowers exists dehors the written Constitution, it is a separation after theBritish method because we had been a ccustomed to that kind of separationthroughout the British occupation of this country.
In view of the fact that the Ceylon (Constitution) Order in Council of1916 itself recites that His Majesty’s Government have reached theconclusion that a Constitution on the general lines proposed by theSoulbury Commission (which also conforms in broad outline, save asregards the Second Chamber, with the Constitutional scheme put forwardby the Ceylon Ministers themselves) will provide a workable basis forconstitutional progress in Ceylon, we permitted counsel on both sides tomake reference to the text of parts of the report of the Soulbury Com-mission itself, a course which Their Lordships of the Judicial Committeeapproved in somewhat similar circumstances in Kodakan Pillai v.Mudannayake x. Counsel for the defendants referred us to paragraphs395 and 396 of that Report (Ceylon—Report of the Commission onConstitutional Reform, Cmd. 6677, September 1945) wherein . theCommissioners state :—I
. | j *
“ In making these recommendations we have fully consideredthe objections usually raised by those trained in the English traditionto the establishment of a Ministry of Justice, on the ground that aMinistry so designated is apt to blur—at least in the public mind—theline of demarcation prescribed under English practice between' theJudiciary and the Executive. We realise that Ceylon is accustomed tothe British system and that any departure from British principleswould be likely to meet with widespread opposition. ”
“ We would therefore make it amply clear that in recommend-ing the establishment of a Ministry of Justice we intend no more thanto secure that a Minister shall be responsible for the administrative side
1 (1953) 54 N. L. R. at 438.
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of legal business, for obtaining from the Legislature financial provisionfor the administration of justice, and for answering in the Legislatureon matters arising out of it. There can, of course, be no question ofthe Minister of Justice having any power of interference in or controlover the performance of any judicial or quasi-judicial function, or. theinstitution or supervision of prosecutions”
The learned Attorney-General, on the other hand, referred us to
the Epilogue to the Report—paragraphs 408 to 410—wherein the
Commissioners state that—
t
“ The Constitution we recommend for Ceylon reproduces in largemeasure the form of the British Constitution, its usages and conven-tions, and may on that account invite the criticism so often and solegitimately levelled against attempts to frame a government for an
Eastern people on the pattern of Western democracyIt is
easier to propound new constitutional devices and fresh constructivesolutions than to foresee the difficulties and disadvantages which theymay develop. At all events, in re comm ending for Ceylon a Con-stitution on the British pattern, we are recbmmending a method ofGovernment we know something about, a method which is the resultof very long experience,, which has been tested by trial and error andwhich works, and, on the whole, works well.
Be that as it may, the majority—the politically conscious majorityof the people of Ceylon—favour a Constitution on British lines. Sucha Constitution is their own desire, and is not being imposed on them….
i But we think that Ceylon is well qualified for a Constitution framedon the British model, and we regard our proposals as a further stage in:the evolution of the system under which Ceylon was governed prior to1931—an evolution to some extent interrupted by the experiment ofthe Donoughmore Constitution of that year
We think that it should be well within the capacity of a futureGovernment of Ceylon to operate a form of Constitution which doesnot represent a novel and strange creation, but is the natural evolutionof a type of government with which the Ceylonese had for some timebeen familiar. ”
While we have referred to the Report of the Soulbury Commission, thequestion raised as to whether a separation of the three powers or functionsof Government is embodied in our Constitution must ultimately beanswered by an examination of the provisions of the Order in Council itself.The learned Attorney-General pointed out that under our Constitutionthe Cabinet of Ministers who are all members of the Legislature (i.e. ofthe Senate or the House of Representatives) are all executive officersand direct the executive functions of Government. The Chief Justiceand at least one other Judge of the Supreme Court are members of theJudicial Service Commission, a body performing executive functions. Itmust, however, not be overlooked that these are functions assigned to
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them under the paramount law, the Constitution itself. It appears to usunnecessary to go into this question at any length except to say -that ifby a separation of powers or functions of Government is meant a mutuallyexclusive separation of such powers or functions as obtains in theAmerican Constitution or even in the Constitution of the Commonwealthof Australia, which was itself based on the American Constitution, thereis no such mutually exclusive separation of governmental functions inour Constitution. Nor on the other hand do we have a sovereign Par-liament in the sense in which that expression is used in reference to theParliament of the United Kingdom. That a division of the three mainfunctions of Government is recognised in our Constitution was indeedconceded by the learned Attorney-General himself. For the purposesof the present case it is sufficient to say that he did not contest thatjudicial power in the sense of the judicial power of the State is vestedin the Judicature, i.e. the established civil courts of this country.
There is no dispute that the three of us, as constituting, for the pur–poses of this Trial at Bar, the Supreme Court are called upon to exercisethe strict judicial power of the State, and, in fact, we have, all three of us,received at one time or another, but in each case before the SupremeCourt was so called upon to exercise judicial power, appointment by the
Governor-General acting under Section 52 (1) of the 1946 Order in Council.
i . 3
i * i
It was strongly urged on behalf of the defence that the power of riomi-hation reposed by the impugned section 9 in the Minister is, in pith andsubstance, a power of appointment of Judges of the Supreme Courtin contravention of the said section 52 (1), and that the three of us consti-tuted neither the Supreme Court nor a bench of Judges of the SupremeCourt but merely a tribunal appointed by the Minister from the panelof Supreme Court Judges.
Whether or not the power of nomination granted to the Minister isintra vires the Constitution, there is, in our opinion, no doubt that thisCourt is assembled as the Supreme Court holding a Trial at Bar in termsof Section 440a of the Criminal Procedure Code and not as a separatecourt or tribunal. We have so assembled by virtue of a nominationmade by the Minister, and if that nomination be ultra vires the Constitu-tion we are agreed that this Court is not a duly constituted panel ofSupreme Court Judges to hold a Trial at Bar as representing theSupreme Court.
In support of the argument that this nomination is an appointment,the defence, apart from leaning on a dictionary meaning of the word—“ appoint (a person) by name to some office or duty ”—relied on thedecision of the Privy Council in Attorney-General for Ontario v. Attorney-General for Canada1. That case related to a conflict between the powersof the Governor-General of Canada to appoint Judges vested in himunder Section 96 of the Canadian Constitution and a certain provision1 (1925) 94 L. J. (P. G.) 132—L. R. (1925) A. C. 750.
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in the Judicature Act of Ontario of 1924 passed by the Legislature of the•Province of Ontario which had been empowered by Section 92 of theDominion Constitution to make laws for the administration of justicein;the Province, including the constitution, maintenance and organisationof the Provincial Courts.
By the Judicature Act of 1924, the Legislature of Ontario establishedin lieu of the then existing Supreme Court a Supreme Court of Ontarioconsisting of 19 Judges to be appointed by the Governor-General asprovided in the Constitution. This Court was divided into two Divisions—the Appellate Division and the High Court Division. The rights of theexisting Judges were safeguarded, but the Act empowered the Lieutenant-Governor of Ontario to assign some of the Supreme Court Judges to theAppellate Division and some to the High Court Division. He wasalso authorised to designate the Presidents of the two Divisions and theywere to be called the Chief Justice of Ontario and the Chief Justice ofthe High Court Division respectively.
The powers conferred on the Lieutenant-Governor by this JudicatureAct were challenged as being ultra vires the Canadian Constitution.Upholding the challenge, Viscount Cave, L. C., stated in the JudicialCommittee :—
“ What is the effect of these provisions ? It can hardly be doubtedthat the result of these was to authorise the Lieutenant-Governorof the Province to assign—that is to say, to appoint certain Judges ofthe High Court to be judges of the Appellate Division of the SupremeCourt, and also to designate—that is to say, to appoint certainJudges to hold the offices of Chief Justice of Ontario and Chief Justiceof the High Court Division. If that is the real effect of the Statute,i as it appears to be, there can be no doubt that the effect of the Statute,if valid, would be to transfer the right to appoint the two Chief Justicesand Judges of Appeal from the Governor-General of Canada to theLieutenant-Governor of Ontario in Council; and if so, it mustfollow that the Statute is to that extent inconsistent with section 96of the Act of 1S67 and beyond the power of the Legislature of Ontario. ”
It is evident that in spite of the use of the words “ assign ” and“designate ” the effect of the 1924 Act was to restrict the powers ofappointment given to the Governor-General by the Constitution to anappointment of the Judges to the Supreme Court generally withoutallowing him the right to appoint them to the two Divisions of that Court.Clearly the Act purported to give the Lieutenant-Governor the right toappoint Judges to particular offices as such, though his field of selectionwas limited.
In the case before us the nomination of the Judges by the Ministerdoes not constitute an appointment to any new office or even %o anyoffice as such. The Judges nominated by the Minister were alreadyJudges of the Supreme Court, and in holding a Trial at Bar under section440a of the Criminal Procedure Code they function as Judges of theSupreme Court and in no other capacity.
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The power of nomination conferred on the Minister is no different* insubstance from the power exercised by the Chief Justice to nominate abench of Judges to hear and determine a cause either by virtue of hisstatutory power under section 51 of the Courts Ordinance or by virtueof his conventional function in nominating Judges to hear certain other'matters. There are various provisions in the Courts Ordinance for thehearing of appeals, applications and other cases in the exercise of theOriginal criminal jurisdiction of the Supreme Court by one, two, threeor more Judges. The power to nominate the judges in cases where noexpress statutory provision has been made therefor appears to us toreside in the Court, although it is correct to say that by convention itis the Chief Justice who, for purposes of convenience, exercises suchpower. Can it be seriously contended that every time the Chief Justiceso nominates a judge or judges, whether by virtue of his statutory or hisconventional powers, he is appointing judges to particular offices asdistinct and separate from the offices to which they were appointed bythe Governor-General ? Had the Minister, of course, purported, tonominate any person who did not hold the office of a Judge of the SupremeCourt to officiate as a Judge at this Trial at Bar, he would undoubtedlyhave been purporting to appoint a person to the office of a Judge incontravention of section 52 (1) of the Order in Council. We thereforethink that the nomination of the judges by the Minister in this instanceis not an appointment by him of any person to the office of a Judge ofthe Supreme Court. The nomination is not ultra vires on that ground.Nor do we think that it is possible for us to uphold the defence contentionthat the Minister, by this act of nomination, has constituted or createda new tribunal distinct and separate from the Supreme Court.
Another argument advanced by the defence was that the SupremeCourt is one and indivisible and. that the power of nomination given tothe Minister by section 9 violated the unity and indivisibility of theCourt. There can be no doubt that the existence of the Supreme Court-is impliedly entrenched by section 52 of the Order in Council. Theentrenched provisions in the Constitution in respect of the appointment,tenure, salary and removal of Judges of the Supreme Court will haveno meaning if the Supreme Court is abolished. We are, however, unableto accept the proposition that the entire j urisdiction vested in the SupremeCourt by the Courts Ordinance and other Statutes at the time of thecoming into force of the 1946 Constitution is also entrenched as part ofthe Constitution or that no part of that jurisdiction can be removed andvested in a judicial officer or otherwise abolished by Parliament by lawpassed by a simple majority.
I
Section 6 of the Courts Ordinance enacts that there shall continue tobe within Ceylon one Supreme Court which shall be called “ The SupremeCourt of the Island of Ceylon ”. There was a similar provision in section 5of the Charter of 1833 which established the Supreme Court. Underthe Courts Ordinance judges sitting apart singly or in various combinationsare empowered to exercise the several jurisdictions of the Supreme Court.
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powers are expressly or by implication excluded from the scope of ChapterIII (The Judicature) but what powers are expressly or by implicationincluded in it ”. Is the power of nomination or selection of judges tohear a particular cause an implied power, in this sense, of the judicature.On such occasions as our law (except in this impugned instance) has madeexpress provision therefor it has been reposed in a member of the Judi-cature, and where no express provision has been made the implication isstrong that it is the Court itself that can effect the nomination or selection.That indeed has been the un-questioned practice for about a centuryand a half in this country.
The impugned section seeks to change this consistent and long-established practice. Is the change intra vires the Legislature’s powers ?
“ It is always a serious and responsible duty ”, said Isaacs J. in FederalCommissioner of Taxation v. Munrol, to declare invalid, regardless ofconsequences, what the national Parliament representing the wholepeople of Australia, has considered necessary or desirable for the publicwelfare. The Court charged with the guardianship of the fundamentallaw of the Constitution may find that duty inescapable. Approachingthe challenged legislation with a mind judicially clear of any doubt asto its propriety or expediency—as we must, in order that we may notourselves transgress the Constitution or obscure the issue before us—thequestion is : Has Parliament, on the true construction of the enactment,misunderstood and gone beyond its constitutional powers ? It is areceived canon, of judicial construction to apply in cases of this kindwith more than ordinary anxiety the maxim ‘ ut res magis valeat quampereat ’. Unless, therefore, it becomes clear beyond reasonable doubtthat the legislation in question transgresses the limits laid down in theorganic law of the Constitution, it must be allowed to stand as theexpression of the national will.”
Bearing this principle in mind and recalling also that the judicialpower of the State is vested in the Judicature (in which is included theSupreme Court), let us examine the question whether the nomination orselection of judges to hear a particular case, while itself not a part of thestrict judicial power or the essence of judicial power in the sense of thedefinition of Griffiths C.J., is yet so much incidental to the exercise ofthat power or an incident in the exercise of that power as to form part ofthat power itself.
The Privy Council in the case of The Shell Co. of Australia Ltd. v.Federal Commissioner of Taxation 2 expressed itself in agreement withIsaacs J. when he stated in Federal Commissioner for Taxation v. Munro{supra) that “ there are many functions which are either inconsistentwith strict judicial action, as the arbitral function in Alexander's case,or are consistent with either strict judicial or executive action. Ifinconsistent with judicial action, the question is at once answered. Ifconsistent with either strictly judicial or executive action, the mattermust be examined further. ”
1 [1926) 38 C. L. R. at 180.
8 (1931) A. G. at 275.
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Then again, in The Queen v. Davison 1, Dixon C. J. and Me Tier nan J.in the High Court of Australia, in referring to the observation of theCourt in Queen Victoria Memorial Hospital v. Thornton (supra), whichwe have already reproduced earlier, stated that “ it is this double aspectwhich some acts or functions may bear that makes it so difficult todefine the judicial power. … An extreme example of a function
that may be given to courts as an incident of judicial power or dealtwith directly as an exercise of legislative power is that of makingprocedural rules of court. The proper attribution of this power is amatter that has received much attention in the United States ”, where,according to Dean Roscoe Pound’s thesis on the subject, historicallyand analytically it is the function of the courts to regulate their procedure.Said Dean Pound :—
“ In doubtful cases, however, we employ a historical criterion.We ask whether, at the time our Constitutions were adopted, thepower in question was exercised by the Crown, by Parliament, orby the Judges. Unless analysis compels us to say in a given casethat there is a historical anomaly, we are guided chiefly by thehistorical criterion.”
•
Said Dixon C. J. and Me Tieman J. in Davison's case (supra) at p. 369 :—
“ The truth is that the ascertainment of existing rights by thejudicial determination of issues of fact or law falls exclusively withinthe judicial power so that Parliament cannot confide the functionto any person or body but a court constituted under sections 71 and72 of the Constitution, and this may also be true of some duties orpowers hitherto invariably discharged by courts under our system ofjurisprudence but not exactly of the foregoing description. ”
In a case arising upon an interpretation of the American Constitution,where the difficulty was in distinguishing between a legislative and ajudicial proceeding, it was held that the end accomplished may bedecisive. Said Holmes J. in Prentis v. Atlantic Coast Line Co 2 , “ thenature of the final act determines the nature of the previous inquiry ”.Though the purpose to which this test was put by Holmes J. was todistinguish a judicial from a legislative function, Dixon C.J. and MeTiernan J. thought, and we respectfully agree with them, that it mayusefully be applied by analogy to ascertain whether a thing is doneadministratively or as an exercise of judicial power.
A somewhat different approach to the problem appealed to Kitto J.in the same case—at pp. 381-2—when he stated :—
V It is well to remember that the framers of the Constitution, indistributing the functions of government amongst separate organs,were giving effect to a doctrine which was not a product of abstractreasoning alone, and was not based upon precise definitions of the
1 (1954) 90 C. L. B. at 369.
* (1908) 211 U. S. 210.
ORDER OF COURT—The Queen v. Liyanage and others
357
terms employed …. and it is safe to say that neither in Englandnor elsewhere had any precise tests by which the respective functionsof the three organs might be distinguished ever come to be generally
accepted. The reason, I think, is not far to seekthe
separation of powers doctrine is properly speaking a doctrine not somuch about the separation of functions as about the separation offunctionaries …. For it still remains true firstly, that differentskills and professional habits are needed at the different levels oflaw-making ; and secondly, that concern for individual liberty willalways see one of its chief safeguards in the precautionary disposalof law-making power. It may accordingly be said that when theConstitution of the Commonwealth prescribes as a safeguard ofindividual liberty a distribution of the functions of governmentamongst separate bodies, and does so by requiring a distinction to bemaintained between powers described as legislative, executive andjudicial, it is using terms which refer, not to fundamental functionaldifferences between powers, but to distinctions generally acceptedat a time when the Constitution was framed between classes of powersrequiring different “ skills and professional habits ” in the authoritiesentrusted with their exercise.
For this reason it seems to me that where the Parliament makes ageneral law which needs specified action to be taken to bring aboutits application in particular cases, and the question arises whetherthe Constitution requires that the power to take that action shall becommitted to the judiciary to the exclusion of the executive, or to theexecutive to the exclusion of the judiciary, the answer may often befound by considering how similar or comparable powers were in facttreated in this country at the time the Constitution was in fact prepared.Where the action to be taken is of a kind which had come by 1900 tobe so consistently regarded as peculiarly appropriate for judicialperformance that it then occupied an acknowledged place in thestructure of the judicial system, the conclusion, it seems to me, isinevitable that the power to take that action is within the conceptof judicial power as the framers of the Constitution must be takento have understood it. ”
As we have already stated, section 9 of Act No. 1 of 1962 is a novelprovision of law the like of which does not hitherto appear to havefound a place in any recognised system of law. We find ourselvesechoing here the words of Bonser C.J. used, in another context, in anold Ceylon case, Rode v. Bawa,1 that “ there is no case exactly like thisto be found in the books, for I suppose such a case never happened before.*’The right of a judge to exercise judicial power is so inextricably boundup with the actual exercise of the power and is such an essential stepin the exercise of the strictly judicial power that it must, in our opinion,be considered part of the power itself. Unless the Legislature hasvested the exercise of any strictly judicial power in the entire Supreme
> (1896) 1 N. L. R. at 374.
358
ORDER OF COURT—The Queen v. Liyanage and others
Court, it is necessary that a bench of Judges should be nominated toexercise that judicial power vested in the Supreme Court. If the powerof nomination is completely abolished, no judicial power vested in thecourt can be exercised. If that power is vested in an outside authority,it will legally be open to such authority to exercise that power to preventa particular judge or judges from exercising any part of the strictlyjudicial power vested in them by the Constitution as judges of. theSupreme Court. The absurdity of such a possible result will be moremarked if, instead of the position of a Puisne Justice of the Court, theposition of the Chief Justice himself be considered. Under a provisionof law of this nature it seems to us legally possible to exclude the ChiefJustice himself from presiding in the Court of which he is the constitu-tionally appointed Head. The exercise of the power to nominate canthen in practice result in a total negation of the judicial power of a judgeor judges vested in them by the Constitution.
Then, again, if the power to nominate or select judges can be constitu-tionally reposed in the Minister on the ground that it is no more thanan exclusively administrative act, we can see nothing in law to preventsuch a power being conferred on any other official, whether a partyinterested in the litigation or not. The fact that the power of nominationso conferred is capable of abuse so as to deprive a judge of the entrenchedpower vested in him by virtue of his appointment under section 52of the Order in Council, or at least to derogate from that power, is aconsideration which is not an unimportant one in deciding whetherthe conferring of this power by section 9 on a person who is not a judgeof the Supreme Court is ultra vires the Constitution.. It may, of course,be contended that the power is capable of abuse even if it is grantedto a Judge of the Supreme Court or, for that matter, to the entire Court.However, the proper authority under the Constitution to exercise [thispower appears to be the Judicature itself.1•
Although the cases to which we have made reference in this Orderhave been decided in Australia or the United States of America againstthe background of their respective Constitutions, it does not appearto us to bo illegitimate to apply the tests referred to therein in a solutionof the problem with which we are confronted in this case.
Applying the historical test indicated by Dean Pound or following theapproach approved in the judgment of Kitto J. we have referred to, weare met with the fact that at all times prior to the enactment of theCriminal Law (Special Provisions) Act, No. 1 of 1962, this power ofnomination was invariably vested in the Judicature. Whenever therewas no express vesting of this power it was always exercised by HerMajesty’s Courts and the Judges thereof. As we have already stated,no instance has been cited either in this country or in any country of theBritish Commonwealth of Nations where such a right of nomination orselection has been granted to anyone outside the Judicature.
ORDER OF COURT—The Queen v. Liyanage and others
359
On the other hand, if we were to apply what may be termed, for brevity,as the Holmes test and inquire what is the end or purpose in view in makingthis nomination there can be only one answer, viz. to exercise the strictlyjudicial power of the State. In this sense too, the Statute has purportedto confer judicial power on the Minister.
For reasons which we have endeavoured to indicate above, we are .of opinion that because
the power of nomination conferred on the Minister is an inter-
ference with the exercise by the Judges of the Supreme Courtof the strict judicial power of the State vested in them byvirtue of their appointment in terms of section 52 of the Ceylon(Constitution) Order in Council, 1946, or is in derogationthereof, and
the power of nomination is one which has hitherto been invariably
exercised by the Judicature as being part of the exercise ofthe judicial power of the State, and cannot be reposed in anyoneoutside the Judicature,
section 9 of the Criminal Law (Special Provisions) Act, No. 1 of 1962, isultra vires the Constitution.
This conclusion we have reached on the validity of the law conferringthe power of nomination on the Minister deprives us of jurisdiction to ’enter upon a Trial at Bar of these defendants. In ordinary circums-tances, therefore, there would have been nothing more to be said at thisstage. We, nevertheless, propose to refer to another objection of afundamental character raised by Mr. Ponnambalam and supported byother counsel for the defence. Even if the power of nomination is intravires the. Constitution, does it offend, in the context of this particularcase, against that cardinal principle in the administration of justicewhich has been repeatedly stated by Judges and which was restate"! in1924 by Lord Hewart C. J. in R v. Sussex Justices, ex parte Me Carthy1as follows :—
“ It is not merely of some importance, but is of fundamental impor-tance that justice should not only be done, but should manifestly and
undoubtedly be seen to be doneNothing is to be done which
creates even a suspicion that there has been an improper interference. with the course of justice. ”
Under section 440a of the Criminal Procedure Code as it stood priorto 1962 the Minister had merely the right to direct that the trial be held- before the Supreme Court by three Judges without a jury. But thenew legislation, passed, with retroactive effect, after the commission ofthe offences alleged, has purported to vest in the Minister, a memberof the Government which the defendants are alleged to have conspiredto overthrow by unlawful means and who, it was not disputed, had
1 (1924) 1 K. B. at 259.
3G0
ORDER OF COURT—The Queen v. Liyanage and others
participated in the investigation and interrogation of some of the defen-dants, the additional power to nominate the three Judges. This power,as indicated already, had hitherto been vested in the Supreme Courtas a body or in the Chief Justice, but certainly in no person or bodyoutside the Judicature. This is the first occasion on which an attempthas been made to vest this power in such an outsider, and that too incircumstances where the propriety of the nomination becomes, by reasonof the doctrine of ministerial responsibility, discussable in Parliamentinvolving, perhaps, the merits and demerits of respective Judges, whereasunder the previous law the Judges enjoyed freedom from being thesubject of such a discussion.
A court cannot inquire into the motives of legislators. The circum-stances set out above are, however, such as to put this court on enquiryas to whether the ordinary or reasonable man would feel that this courtitself may be biassed. What is the impression that is likely to be createdin the mind of the ordinary or reasonable man by this sudden and, itmust be presumed, purposeful change of the law, after the event, affectingthe selection of Judges ? Will he not be justified in asking himself,
“ Why should the Minister, who must be deemed to be interested in theresult of the case, be given the power to select the Judges whereas theother party to the cause has no say whatever in a selection ? Have notthe ordinary canons of justice and fairplay been violated ?” Will he•harbour the impression, honestly though mistakenly formed, that therehas been an improper interference with the course of justice ? In thatsituation will be not suspect even the impartiality of the Bench thusnominated ?
Examining previous instances where this principle has been applied,we find Swift J. in JR v. Essex Justices, ex parte Perkins1 stating that“ it is essential that justice should be so administered as to satisfy reason-able persons that the tribunal is impartial and unbiassed”, and Bucknill
J.observing in Cottle v. Cottle 2 that the test to be applied is “ whetheror not a reasonable man in all the circumstances might suppose thatthere was an improper interference with the course of justice.” Ourown Court of Criminal Appeal has, in The King v. Beyal Singho 3, formu-lated the rule thus :—“Nothing is to be done which raises a suspicionthat there has been an improper interference with the course of justice. ”
Guiding ourselves by these tests and those applied in other cases 4 wehave examined, we find it difficult to resist the conclusion that the power-of nomination conferred on the Minister offends the cardinal principleas restated by Lord Hewart. For that reason, even had we come to a
1 {1927) 2 K. B. at 4SS.2 {1939) 2 A. E. B. 541.
{1946) 4S N. L. R. at 27.
{a) Eckerslcy v. Mersey Docks and Harbour Board, {1S94) 2 Q. B. 670.
(6) Rodev. Bawa {supra).'
Dingiri Mahalmaya v. Mudiyanse, {1922) 24 N. L. R. 377.
Ruthira Reddiar v. Subba Reddiar {1937) 39 N. L. R. 14.
(c) The King v. Caldera {1938) 11 C. L. W. 1.
(/) Kandaeamy v. Subramaniam {1961) 63 N. L. R. 574.
ORDER OF COURT—The Queen v. Liyanage and others
361
different conclusion regarding the validity of section 9 of the CriminalLaw (Special Provisions) Act, we would have been compelled to give wayto this principle which has now become ingrained in the administrationof common justice in this country.
Sgd. T. S. Fernando,
Puisne Justice.
Sgd. L. B. de Sjxva,
Puisne Justice.
Sgd. P. Sri Skanda Rajah,
Puisne Justice.
Preliminary objection as to jurisdiction of the Court upheld.
Document “ A *
Direction under Section 440a of the Criminal Procedure Code as amendedby Section 4 of the Criminal Law (Special Provisions) Act, No. 1 of 1962
To the Honourable the Chief Justice of the Supreme Court of the Island of Ceylon.
Samuel Peter Christopher Fernando, Minister of Justice, by virtue of the powervested in me by Section 440a (1) (a) of the Criminal Procedure Code, as amended bySection 4 of the Criminal Law (Special Provisions) Act, No. 1 of 1962, do herebydirect that the trial of the following persons, to wit,
Don John Francis Douglas Liyanage
Maurice Ann Gerard de Mel
Frederick Cecil de Saram
Cyril Cyrus Dissanayaka
Sidney Godfrey de Zoysa
Gerard Royce Maxwell de Mel
Wilmot Selvanayagam Abraham
S. Bastianpillai Ignatius Loyola%
Wilton George White
362
ORDER OF COURT—The Queen v. Liyanage and others
Nimal Stanley Jayakody
Anthony John Bernard Anghie
Don Edmond Weerasinghe
Noel Vivian Mathysz
Victor Leslie Percival Joseph
Basil Raj an diram Jesudasan
Victor Joseph Harold Gunasekera
John Anthony Rajaratnam Felix
William Emost Chelliah Jebanesan
Torronco Victor Wijcsingho
Lionel Christopher Stanley Jirasingho
Vith anage E lster Perera
David Sonadirajah Thambyah
Samuel Gardner Jackson
Rodney de Mel
in respect of the following offences under Chapter VI of the Penal Code, to wit,
That on or about tho 27th day of January, 1962, at Colombo, Kalutara,
Ambalangoda, Galle, Matara and other places, they with others did conspire towage war against the Queen and thereby committed an offence punishable underSection 115 of the Penal Code as amended by Section 6 (2) of the Criminal.Law (Spocial Provisions) Act, No. 1 of 1962, read with Section 114 of the PenalCode.,
That on or about tho 27th day of January, 1962, at Colombo, Kalutara,
Ambalangoda, Galle, Matara and other places, they with others did conspire tooverthrow otherwise than by lawful means the Government of Ceylon by lawestablished and thereby committed an offence punishable under Section 115 of thiePenal Code as amended by Section 6 (2) of the Criminal Law (Special Provisions)Act, No. 1 of 1962.•
That on or about the 27th day of January, 1962, at Colombo, Kalutara,Ambalangoda, Galle, Matara and other places, they with others did prepare tooverthrow otherwise than by lawful means the Government of Ceylon by lawestablished and thereby committed an offence punishable under Section 115 ofthe Penal Code as amended by Section 6 (2) of the Criminal Law (SpecialProvisions) Act, No. 1 of 1962.
bo held before the Supreme Court at Bar by throe Judges without a Jury.
Givon under my hand this 23rd day of June, 1962, at Colombo.
Sgd. Sam. P. C. Fernando.
Minister of Justice.
ORDER OF COURT—The Queen v. Liyanage and others
363
Document “ B **.
IN THE SUPREME COURT OF THE ISLAND OF CEYLON
Information
Information exhibited by Her Majesty's Attorney-General
The Queenvs.
Don John Francis Douglas Liyanage
Maurice Ann Gerard de Mel
Frederick Cecil de Saram
Cyril Cyrus Dissanayaka
Sidney Godfrey de Zoysa
C. Gerard Royce Maxwell de Mel7. Wilmot S elv an ay again AbrahamS. Bostianpillai Ignatius Loyola
Wilton ‘George White
Nimal Stanley Jayakody
Anthony John Bernard Anghie
Don Edmond Weeraainghe
Noel Vivian Mathysz
Victor Leslie Percival Joseph
Basil Rajandiram Jesudasan
10. Victor Joseph Harold Gunasckera
John AnthoDy Rajaratnam Felix
William Ernest Chelliah Jebanesam
Terrence Victor Wijesinghe
Lionel Christopher Stanley Jirasinghe
Vithanage Elster Perera
David Senadirajah Thambyah
Samuel Gardner Jackson
Rodney de Mel
Defendants.
This 23rd day of June, 1962.
364
ORDER OF COURT—The Queen v. Liyanage and others
BE it remembered that Douglas St. Clive Budd Jansze’, Esquire, Queen’s Counsel,Her Majosty’s Attorney-General for the Island of Ceylon, who fo>r Her Majesty inthis behalf prosooutes, gives the Court to understand and be informed that—
On or about the 27th day of January, 1962, at Colombo, Ealutara,Ambalongoda, Galle, Matara and other places within the jurisdiction of thisCourt, the defendants abovenamed with others did conspire to wage war againstthe Queen and did thereby commit an offence punishable under Section 115 of thePenal Code as amended by Section 6 (2) of the Criminal Law (Special Provisions)Act, No. 1 of 1962, read with Section 114 of the Penal Code.
At the time and places aforesaid and in the course of the same transactionthe defendants abovenamed with others did conspire to overthrow otherwise thanby lawful means the Government of Ceylon by law established and did therebycommit an offence punishablo under Section 115 of the Penal Code as amended bySection 6 (2) of tho Criminal Law (Special Provisions) Act No. 1 of 1962.
At tho time and places aforesaid and in the courso of the same transactiontho defendants abovenamed with others did prepare to overthrow otherwise thanby lawful means tho Government of Coylon by law established and did therebycommit an offence punishable under Section 115 of tho Penal Code as amended bySection 6 (2) of the Criminal Law (Special Provisions) Act, No. 1 of 1962.
WHEREUPON Her Majesty’s Attorney-General prays the consideration of theCourt here in the premises, and that due process of law may be awarded against thodefendants abovenamed, in this behalf to make them answer to Our Sovereign Ladythe Queon touching and concerning the premises aforesaid.
Sgd. D. Jansze,A ttomey-General.
Document “ C
Nomination made by the Minister of Justice under Section 9 of the CriminalLaw (Special Provisions) Act, No. 1 of 1962
WHEREAS, I, SAMUEL PETER CHRISTOPHER FERNANDO, Minister ofJustice, havo on tho Twenty-third day of June 1962, issued a direction undorSoction 440a of the Criminal Procedure Code, as amended by Section 4 of thoCriminal Law (Special Provisions) Act, No. 1 of 1962, requiring that the trial of thefollowing persons, to wit,
Don John Francis Douglas Liyanage
Maurice Ann Gerard de Mol
Frederick Cecil de Soram
Cyril Cyrus Dissanayaka
5- Sidney Godfrey de Zoysa
ORDER OF COURT—The Queen v. Liyandge and others
365
Gerard Royce Maxwell de Mel
Wilmot Selvonayagam Abraham
BastianpiUai Ignatius Loyola
Wilton George White
Nimal Stanley Jayakody
Anthony John Bernard Anghie
Don Edmond Weerasinghe
Noel Vivian Mathysz
Victor Leslie Percival Joseph
Basil Raj andiram Jesudasan
Victor Joseph Harold Gunosekera
John Anthony Rajaratnam Felix
William Ernest Cholliah Jebanesan
Terrence Victor Wijesinghe
Lionel Christopher Stanley Jirasinghe
Vithansge Elster Perera
David Senadirajah Thambyah
Samuel Gardner Jackson
Rodney de Mel
in respect of the following offences under Chapter VI of the Penal Code, to wit,
That on or about the 27th day of January, 1962, they with others didconspire to wage war against the Queen and thereby committed an offence
. punishable under Section 115 of the Penal Code as amended by Section 6 (2) of theCriminal Law (Special Provisions) Act, No. 1 of 1962, read with Section 114 of thePenal Code.
That on or about the 27th day of January, 1962, they with others didconspire to overthrow otherwise than by lawful means the Government of Ceylonby law established and thereby committed an offence punishable under Section 115of the Penal Code as amended by Section 6 (2) of tho Criminal Law (SpecialProvisions) Act, No. 1 of 1962.
That on or about the 27th day of January, 1962, they with others didprepare to overthrow otherwise than by lawful means the Government of Ceylonby law established and thereby committed on offence punishable under Section 115of the Ponal Code as amended by Section 6 (2) of tho Criminal Law (SpecialProvisions) Act, No. 1 of 1962.
3GG
Rajeswararanee v. Sunlhararasa
bo hold bofore tho Supreme Court at Bar by three Judges .without a Jury :
NOW THEREFORE, I, Samuel Peter Christopher Fernando, Ministerof Justico, in pursuance of the power vested in mo by Section 9 of tho CriminalLaw (Special Provisions) Act, No. 1 of 1962, do hereby nominate
The Honourable Thu sew Samuel Fernando, C.B.E., Q.C.
The Honourable Leonard Bernice De Silva
The Honourable Ponnudurazsamy Sri S eland a Rajah
Judges of the Supreme Court of tho Island of Ceylon, to be the throe Judges whoshall presido over the trial of the aforementioned persons to bo held in pursuance oftho aforementioned direction.
Given under my hand this 23rd day of June, 1962.
Sgd. Sam. P. C. Fernando,
Minister of Justice.
To The Honourable the Chief Justice,Colombo.