M. B. IBRALEBBE (alias Rasa Wattan) and another Petitioners, and THE QUEEN, Resp

091-NLR-NLR-V-65-M.-B.-IBRALEBBE-alias-Rasa-Wattan-and-another-Petitioners-and-THE-QUEEN-Resp.pdf


Ibrcdebbe v. The Queen
433
[In the Privy Council]
1833
Present: The Lord Chancellor, Viscount JSadclifl®,
Lord Morton of Honryton, Lord Morris of Borth-y-Gest,and Lord Guest
M. B. IBRALEBBE (alias Rasa Wattan) and. another,Petitioners, and THE QUEEN, Respondent
Petition for Special Leave to Appeal
S. G. 14-17—D. G. (Criminal) Batticaloa, 126/1960
Privy Council—Jurisdiction to entertain an appeal from, Ceylon in u criminalmatter—Character and effect of an Order in Council by which the decision ojthe appeal is implemented—Appeals (Privy Council) Ordinance (Cap. 100),Schedule, Rule 32—Court of Criminal Appeal Ordinance (Cap. 7), s. 23—Criminal Procedure Code (Cap. 20), es. 333, 334—Courts Ordinance (Cap. 6),ss. 39, 40—Revised Edition of the Legislative Enactments Act (Cap. 1), ss. 2, 3 (1)(a), 12 (2)—Privy Council Appeals Act of 1833 (3 <fc 4 Wm. IV), s. 21—•Judicial Committee Act 1844—Ceylon Independence Act 1947 (11 and 12 Geo.VI C. 7)—Ceylon (Constitution) Order in Council 1946, ss. 29, 30, 39, 45, 46,52, 53-56—Ceylon (Independence) Order in Council 1947, s. 4.
The jurisdiction to entertain ap^ eala from Ceylon before the Judicial Com-mittee of the Privy Council in criminal matters still exists and has not beeuabrogated by Ceylon’s attainment of Independence.
The Order in Council which forms the instrument by which the deoision ofan appeal to the Privy Council is subsequently implemented is essentially ajudicial act. As such it has no analogy with an Order in Council having legis-lative effect or with an Order in Council that is part of the administration ofGovernment, except in the widest general sense that each within its categoryderives its ultimate force from some form of sovereign authority and thus canbe said to “ make law
The structure of Courts for dealing with legal matters and the system ofappeals existing at the time of Ceylon’s attainment of independence have notbeen affected by any of the instruments that conferred that status. While thelegislative competence of the Parliament of Ceylon includes power at any time,if it thinks right, to modify or terminate the Privy Council appeal from itsCourts, true independence is not in any way compromised by the continuanceof that appeal, unless and until the Sovereign legislative body decides to end it.
Petition to the Judicial Committee of the Privy Council for specialleave to appeal from a judgment of the Supreme Court.
F. N. Grcitiaen, Q.G., with A. C. M. Ameer and T. 0. Kdloclc, forthe petitioners.lxy—19
2R 15246—1,856—(1/64)
The Queen v. Hemapala (65 N. L. R. 313) overruled.
434
VISCOUNT IIADCLIPFE—Ibrolebba «. The Quern
Neil Lawson, Q.G., with V. Tennekoon, V. 8. A. PuOenayegum andDick Toneme, for the Crown.
Dingle Foot, Q.G., with R. K. Handoo, as amicus curiae in supportof the Chief Justioe’B view.
Sir Peter Rawlinson, Q.O., Solicitor-General, with J. R. Cumming-Bruce, for the Crown in the right of the United Kingdom.
Cur. adv. vuU.
November 6, 1963. [Delivered by Viscount JRadoumvbJ—
On 31st October 1963 their lordships had before them a Petition lodgedby the above-named Petitioners praying special leave to appeal to HerMajesty in Council from a judgment of the Supreme Court of Ceylonupholding their convictions in a District Court upon charges of causinghurt to certain persona. It was represented to their Lordships that theappeals involved an important issue in the administration of the criminallaw of Ceylon relating to alleged misjoinder of charges and that there hadrecently arisen considerable confusion as to the law upon this issue owingto what were said to be conflicting decisions upon the point emanatingfrom the Supreme Court in the exercise of its criminal jurisdiction onthe one hand and the Court of Criminal Appeal on the other, and alsofrom different judges of the Supreme Court itself.
■Whether or not in these circumstances their Lordships would havethought it right, without more, to advise the exercise of the special andexceptional jurisdiction of allowing an appeal in criminal matters, weightwas added to the case for the petition by the fact that counsel on behalfof the Respondent, appearing for the Attorney General of Ceylon, statedto their Lordships that his instructions were that the Attorney Generalhimself thought it highly desirable, owing to the extreme confusion ofthe present situation, that an authoritative decision of the Board shouldbe obtained. He did not therefore oppose the granting of the specialleave to appeal that was asked for.
It was at this point that their Lordships’ attention was drawn to arecent decision of the Court of Criminal Appeal in Ceylon which appearsto challenge the existence of any jurisdiction in Her Majesty in Council toentertain appeals in criminal matters arising in Ceylon. The judgment inquestion, with the contents of which, their Lordships are familiar, is thatof the Chief Justice, Basnayake C.J. delivered on the 14th October 1963in the case of The Queen v. Aluthge Don Semapala, an appeal remitted tothe Court of Criminal Appeal for final disposal in accordance with anOpinion of the Judicial Committee delivered by Sir Kenneth Gresson onthe 27th May 1963 and implemented by an Order in Council dated 30thMay 1963.
VISCOUNT RADCLIFFE—ibralebbe v. The Queen
4§5
Having regard to the views expressed in the judgment of the learnedChief Justice, which have, naturally, been studied with much concern bytheir Lordships, it seemed right that, before any decision was taken as torecommending special leave to appeal on the present Petition, a fullargument should take place before the Board, in order that it should be ina position to form its considered view on the question of jurisdiction thathad thus been mooted. Arrangements were made accordingly. Sincenot only the Petitioners but also the Attorney General of Ceylon onbehalf of the Respondent stated that they wished to argue in oppositionto the Chief Justice’s view and in support of the continuing existence ofthe appeal in criminal matters, counsel were instructed by the latter toappear before the Board as amici curiae and to present argument inelaboration of the legal propositions expressed by the Chief Justice. Theargument on this point was heard before an enlarged Board (LordDilhome L.C., Viscount Radcliffe, Lord Morton of Henryton, Lord Morrisof Borth-y-Gest and Lord Guest) on the 4th and 6th November last, andat the conclusion of the hearing their Lordships announced that they weresatisfied that the jurisdiction to entertain appeals from Ceylon before theJudicial Committee in criminal matters still existed and had not beenabrogated by Ceylon’s attainment of independence in 1947.
The proposition which is the foundation of the Chief Justice’s judgmentis that the right of the Sovereign to entertain appeals from territoriesoutside the United Kingdom is a “ prerogative right ” enforceable by Orderin Council made in the United Kingdom and that the continuance of sucha right is necessarily inconsistent with the status of Ceylon as an indepen-dent political body. The essential part of his reasoning seems to beexpressed in the following passage from his judgment:—“ It is unthinkablethat the 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 rule ofconstruction 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 of colonies,that right cannot be exercised in respect of a country which is no longera colony and is no longer subject to the suzerainty of the Sovereign ofEngland. The resulting position then is that on the attainment ofindependence the prerogative right of the Sovereign of England toentertain appeals ceased when Ceylon ceased to be a colony. ”
Their Lordships feel no doubt that the Chief Justice’s conclusion isfounded upon a misunderstanding of the nature of an appeal to the Judi-cial Committee and of the Order in Council which forms the instrumentby which the decision of the appeal is subsequently implemented. SuchOrders are essentially judicial acts and it leads only to confusion to treatthem as if they lay in the field of legislation, or, for that matter, of the
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VISCOUNT BADCLTPFB—IbnMAe «. The Quern
administration of government in any ordinary sense. Nor is there anyinherent connection between the judicial appeal to Her Majesty in Councilwhich, historically, existed in respect of decisions of Courts of judicature“ in the Bast Indies, and in the plantations, colonies and other dominionsof Her Majesty abroad ” (not excluding, for instance, the Channel Islands,part of the ancient Ducby of Normandy), and the Bfcatus of any parti-cular territory as a “ colony ” in the general sense in which that wordis understood to-day. Their Lordships will enlarge upon the reasonswhich have led them to regard the Chief Justice's views as misconceived,but before doing so they must make one or two preliminary observationswhich are called for by the somewhat unexpected manner in which thisissue has been brought to notice.
In the first place, their Lordships have not found it possible to reconcilethe learned Chief Justice’s apparent rejection of the validity of anypost-1947 Order in Council affecting criminal proceedings in Ceylonwith his actual treatment of the particular Order in Council to whichhis obser vations were directed. What had happened in that case wasthat, the appellant before the Board having been convicted of murderat a trial in the Supreme Court at Kalutara and his appeal having beeDdismissed by the Court of Criminal Appeal, his appeal succeeded beforethe Board on the ground that the conviction was vitiated by fundamentalirregularities of procedure, and an Order in Council was made on thereport of the Board reversing the order of the Court of Criminal Appealwhich had dismissed the appeal and remitting to that Court thedecision of the question whether to quash the conviction and merelyrelease the prisoner or to order a new trial in exercise of the statutorypowers vested in the Court for this purpose. There is nothing unusualin a remit of that kind to the Court from whioh the appeal is brought.It restores the matter under appeal to the Court appealed from for finaldisposal, in the light of the Judicial Committee’s rulings, and gives thatCourt the opportunity of further consideration of the proper order tomake in any case where its existing powers allow it the choice betweenalternative oourses of action.
The Chief Justice’s judgment on the remit appears, however, to haveproceeded on the basis that, while the Order in Council reversing the Courtof Criminal Appeal’s dismissal of the convicted man’s appeal was legallyeffective, with the consequence that the Court should quash his convictionand direct bis immediate release, that part of the Order which left it to theCourt to decide whether or not to order a new trial was invalid, on theground thatM the prerogative right of the Sovereign of England in Councilto entertain appeals from Ceylon [in criminal matters] ceased on Ceylonbecoming an independent country The only explanation of this dis-tinction, for which their Lordships have not been able to find any rationalbasis, is contained in the words “ the reversal of the decision of the Courtof Criminal Appeal and the quashing of the appellant’s conviction areunaffected by our present decision, as our present decision cannot affectpast acts which have taken effect ”.
VISCOUNT RADCLEFFE—Ibralebbe v. The Queen
437
It would not serve any useful purpose to advert further upon whatpresents itself to their Lordships as an inconsistency of reasoning. For, ifthe true analysis of the state of affairs is that since the independence ofCeylon in 1947 the Sovereign in Council in England has had no power to'make Orders in Council on judicial appeals relating to criminal mattersin Ceylon, the Order in Council reversing the Court of Criminal Appeal’sdismissal of Hemapala’s appeal must by the same reasoning have been anullity os made without jurisdiction and can no more stand as a validdirection to that Court than that part of it which leaves it to the Court toconsider whether to quash the conviction or to order a new trial.
Secondly, their Lordships must admit their inability to detect in whatrespect the reasoning of the Chief Justice, if valid with regard to criminal:appeals, would not also apply to appeals to the Judicial Committee incivil matters arising in Ceylon. There is no doubt that the learnedChief Justice regarded his opinion as limited to appeals in criminal!matters. He says so explicitly in one of the concluding passages of hisjudgment. But how does his reasoning apply with less force to civilthan to criminal appeals ? The latter, if allowed at all, are allowed by agrant of special leave : civil appeals, on the other hand, are regulated ingeneral by the rules as to value and subject matter which are at presentcontained in the schedule to Chapter 100 of the 1956 edition of the.Revised Legislative Enactments of Ceylon, the Appeals (Privy Council).Ordinance, first enacted in its current form on 6th May 1910. Theserules (see rule 32) are expressed as being subject to the right of HerMajesty in Council to admit any appeal on such conditions as may appearto Her to be appropriate, and would be understood, failing any newinterpretation required by the judgment of the Chief Justice, as recog-nising and sanctioning Her right to grant special leave to appeal in anyproper civil case whether or not within the limits allowed “ as of right”.But each such appeal, civil or criminal, is, if admissible at all, admissibleas an appeal to Her Majesty’s prerogative right to act as a final resort inthe administration of justice, and there is not for this purpose any signi-ficant distinction between those that are entertained only by specialleave and those which are regulated and admitted in accordance witha fixed set of rules, whether emanating originally from Order in Council,charter or letters patent or legislation local to the territory itself. Thispoint has already been alluded to and explained by their Lordships”Board in A. 0. Ontario v. A. G. Canada1, where it is saidby Earl Jowitt L.C. at p. 145 with regard to appeals by special leave andappeals “as of right ”—“ fundamentally in both classes of case theappeal is founded on that prerogative which, as long ago as 1867 inReg. v. Bertrand was described as the ‘ inherent prerogative and right and,on all proper occasions, the duty of the Queen in Council to exercise anappellate jurisdiction ’ ”. The method of giving effect to the judgmenton all such appeals is the same for all—an Order in Council made uponthe report of the Judicial Committee : and, if it were correct to suppose
1 . 1947] A. C. 127.
2°R15246 (1/64)
438
VISCOTINT RADCLUTE—I^raf«&6e *. The Quern
that, after Independence, the power to make Orders in Council on judicial■appeals is abrogated by the bare fact of independence itself, it seems thatit would be impossible to detect any valid reason why the necessaryOrder in Council should be lees obnoxious in civil than in criminal appeals.
Yet, civil and criminal appeals from Ceylon have been entertainedwithout interruption since 1947. Civil appeals have been admitted andleave granted under the local rules ; appeals of both kinds have beenheard before the Board, which until his recent death regularly includedthe late Mr. de Silva, a former member of the judiciary of Ceylon appointedto the Judicial Committee for the purpose of helping with those appeals ;and the advice tendered by the Board to the Sovereign has been imple-mented by Orders in Council embodying the usual requirement that theGovernor-General or Officer administering the Government of Ceylon forthe time being and all other persons whom it might concern should takenotice of the Order and govern themselves accordingly. Indeed as recentlyas the year 1953 the Crown in Ceylon appeared before the Board as asuccessful appellant from an order of the Court of Criminal Appeal(see A. G. v. Perera1), and although on that occasion the respondentsubmitted an argument to the effect that the Judicial Committeehad no jurisdiction to entertain an appeal from a judgment thathad quashed the conviction of an accused person, it did not apparentlyoccur to anyone then, any more than on other occasions, that the criminalappeal itself had disappeared with the coming of independence to Ceylon.
The requirement of the Order in Council which is made upon an appealthat al] persons concerned in the territory shall take notice of it and governthemselves accordingly is complemented in Ceylon by the provisions ofthose legislative enactments which direct the Courts there to give effect tojudgments of the Privy Council on appeal and recognise in unambiguouslanguage the “ undoubted right and authority of Her Majesty to admitor receive any appeal from any judgment, decree, sentence or order ofthe Court of Criminal Appeal or the Supreme Court. ” The words lastquoted appear in section 23 of the Court of Criminal Appeal Ordinance(Revised Legislative Enactments of Ceylon 1956 Ch. 7). Similar wordsoccur in section 333 of the Criminal Procedure Code (1956 Cb. 20). TheCourts Ordinance (1956 Ch. 6) on the other hand, which deals with crim-inal as well as civil jurisdiction, contains in section 39 the direction thatin all cases of appeal to the Privy Council allowed by the Supreme Courtor by Her Majesty in Council tbe transcript of the record is to be forwardedto the Privy Council, and in section 40 the duty is imposed on all Courts,supreme or original, to ,4 conform to, execute and carry into immediateeffect ” judgments of the Privy Council on appeal. The same duty isimposed in the same words, where criminal matters are concerned, bysection 334 of the Criminal Procedure Code.
It would not be possible to ignore the significance of these statutoryprovisions, which form part of the law of Ceylon, on the ground that theyare mere relics of pre-independence days, which have been left stranded by1 [MS] A. O. 200 ; 64 if. L. B. 066.
VISCOUNT RADCLXFFE—IbraZebbe v. The Queen
439
time od the shores of the statute book. Such an explanation is irrecon-cilable with the fact that they all appear in the revised edition of 1956.That revision was brought into existence under the special Act (1956Ch. 1. enacted on 1/2/1956), which appointed (section 2) the Hon. H. H.Basnayake, Chief Justice, Commissioner to prepare a new and revisededition of the legislative enactments of Ceylon in force on 31.12.1954 orsuch later date as might be proclaimed by the Governor-General. Theeffective date in fact became 30.6.1956, when by virtue of section 12(2)the revised laws came into force as the existing corpus of legislation ofCeylon. Among the powers conferred upon the Commissioner by theAct was the power to omit from the revised edition any legislative enact-ment which had been repealed expressly or by necessary implication(see section 3 (1) (a)).
Their Lordships therefore cannot follow the Chief Justice in his passingreference to these statutory provisions at the close of his judgment—“ the recognition ”, he says, “ when Ceylon was a British colony, in thestatutes of Ceylon, of the prerogative right of His Majesty in Council toentertain appeals from the Ceylon Courts does not have the effect of•creating a right of appeal by implication and continuing it, even afterCeylon has ceased to be a colony and the judicial prerogative of theSovereign has ceased in respect of this country. When the very foundationof the prerogative to entertain such appeals is gone those provisions haveno application to what does not exist. ” But, with great respect to theview so formulated, the relevant question is not whether the continuance■of these enactments in the revised statute book could in itself create byimplication the prerogative right to entertain appeals. There is no needto debate whether it could. The essential point to attend to, in theirLordships’ opinion, is to inquire whether there is any thing in the legis-lative or other measures which brought about the independence of Ceylonor the constitutional status resulting from those measures which bynecessary implication put an end to the prerogative right to hear appealsand the complementary right to apply for them, which undoubtedlyexisted up to the date of that event. And in answering that question itseems highly unreal to ignore the significance of the continued presenceof provisions in the revised statute book which recognise the right ofappeal, since in common with the other circumstances to which theirLordships have thought it proper to allude their presence testifies plainlyto the fact that, if the coming of independence did by itself impliedlyabolish the judicial appeal, the implication, though now said to be neces-sary, has escaped for years the notice of all those most directly concernedwith the administration of the appeal system.
Their Lordships must now turn to consider the nature of the appeal toHer Majesty in Council in judicial matters which, for brevity, they willrefer to as the Privy Council appeal. In their opinion it has long beenrecognised that the Order in Council which implements the decision of suchappeals is in everything but form the equivalent of a legal judgment.
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-VISCOUNT HADCUTTE—Ibraltbbc v. Thg Quern
As such it has no analogy with an Order in Council having legislativeeffect or with an Order in Council that is part of the administration of
Government, except in the widest general Bens© that each within itscategory derives its ultimate force from some form of sovereign authorityand thus can be said to “ make law It is necessary to say this, becauseit is in their view a basic fallacy to suppose that the irrevocable cessionof legislative authority to the Parliament of Ceylon or the vesting of theexecutive power of the Island in a Governor-General acting on the adviceof a Cabinet of Ministers responsible to that Parliament has by anynecessary implication terminated the judicial power of Her Majestyunder the system of appeals as it existed at the date of independence.
11 is true, no doubt, that the Privy Council appeal existed by prerogativeright, except so far as it was actually created or regulated by statute, butit is a mistake, when speaking of the prerogative in the judicial sphere, tospeak of it as if its exercise were not as much Her Majesty’s duty as Herright. Justice is “ owed ” ; it is not granted by favour or accorded atdiscretion. When it is propounded that the prerogative right of HerMajesty to entertain appeals, or alternatively criminal appeals, fromCeylon was terminated by independence, it needs to be remembered thatwhat must also have been determined was the pre-existing right of everyinhabitant of Ceylon to invoke that appeal, if he could show that it waswarranted by his situation.
The institution of the Judicial Committee by the Privy Council AppealsAct of 1833 (3 & 4 Wm.IV) had a functional effect upon the judicialpowers of the Privy Council itself. It did not take long for commentatorsto observe that what had happened was that the judicial powders had beentransferred from the Council to what was to be in substance an independentCourt of law and that the connection between the two bodies was infuture no more than nominal. Thus Professor Dicey in his book “ThePrivy Council ” (published in 1887, but in fact a reissue of his ArnoldPrize Essay of 1860) is found observing on page 144 “ Even those vestigesof the Council’s ancient jurisdiction have been taken away by the Act3 & 4 Wm.IV, for this measure transfers the judicial powers of the Councilfrom the whole body, who however did not exert them, to a special Com-mittee. Thus statute has produced the same effect on the Council’slegal authority which custom has had in its political powers. In eachthe functions of the whole body have passed into the hands of a smallercommittee, connected with the Privy Council by little more than its Dame.”
The Judicial Committee itself has been insistent on many ocoasions torecord and explain its independent legal status. Thus as early as 1880Sir James Colville in Pitta v. La Fontaine1 defined the position asfollows : “ when a decision of this Board has been reported to Her Majestyand has been sanctioned and embodied in an Order in Council it becomes
the decree or order of the final Court of Appealandit is the duty
of every subordinate tribunal to whom that order is addressed to carry itinto execution ”,
> 6 A. a. 4XB.
VISCOUNT RAJDCLIFFE—Ibralebbe v. The Queen
441
The two fullest statements as to the relationship between the JudicialCommittee and the Privy Council and as to the Order in Council whichimplements the Committee’s reports are that of Lord Haldane inAlex. Hull & Go. v. M'Kenna1 and that of Lord Sankey in- -British Goal Corporation v. The King2. In the former Lord Haldanespoke of the “ long standing constitutional anomaly that we are reallya Committee of the Privy Council giving advice to His Majesty, but in ajudicial spirit “ We are really judges ”, he went on to say, “ but inform and name we are the Committee of the Privy Council. The Sovereigngives the judgment himself and always acts upon the report that we make.Our report is made public before it is sent up to the Sovereign in Council.It is delivered here in printed form. It is a report as to what is proper tobe done on the principles of justice, and it is acted upon by the Sovereignin full Privy Council, so that per se, in substance what takes place is astrictly judicial proceeding.”
Lord Sankey’s account appears at pages 510/512 of the British Coal•Corporation case. “ It is clear ”, he said with reference to the 1833 Act,“ that the Committee is regarded in the Act as a judicial body or Court,though all it can do is to report or recommend to His Majesty in Councilby whom alone the Order in Council which is made to give effect to thereport of the Committee is made.
But according to constitutional convention it is unknown and unthink-able that His Majesty in Council should not give effect to the report of theJudicial Committee, who are in truth an appellate Court of law to whomby the statute of 1833 all appeals within their purview are referred ” . . ..
“ In this way the functions of the Judicial Committee as a Court of lawwere established. The practice had grown up that the colonies underthe authority either of Orders in Council or of Acts of Parliament shouldprovide for appeals as of right from their Courts to the King in Council andshould fix the conditions under which such appeals should be permitted.But outside these limits there had always been reserved a discretion to theKing in Council to grant special leave to appeal from a colonial Court irres-pective of the limitations fixed by the colonial law : this discretion to grantspecial leave to appeal was in practice described as the prerogative right :it was indeed a residuum of the Royal prerogative of the Sovereign as thefountain of justice… .Although in form the appeal was still [i.e. after theJudicial Committee Acts] to the King in Council, it was so inform only andbecame in truth an appeal to the Judicial Committee, which as suchexercised as a Court of law in reality, though not in name, the residualprerogative of the King in Council. No doubt it was the order of the Kingin Council which gave effect to their reports, but that order was in no senseother than in form either the King’s personal order or the order of thegeneral body of the Privy Council.”
Their Lordships take it to be clear therefore that the Order in Councilwhich gives effect to a Judicial Committee report is a judicial order. Itis an “ order or decree… .on appeal ”, to use the words of section 21 of
1 [1926] Jr. Rep. 402.
2 [IP3.5] A, G. 500.
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VISCOUNT KjLQCLIVF®—Tbrohdba v. The Qu#*h
the 1833 Act. It is mandatory ia rise directions to those whom it affects byvirtue of the provisions of that section. The Judicial Committee Acte applied,when enacted, to all parts of the Sovereign's overseas territories coveredby the enacting words and remain part of the law of such territories untilvalidly repealed. That indeed was the reason why, before the Statute ofWestminster, the 'Parliament of Canada could not of its own authorityabolish criminal appeals from Canada, owing to the bar imposed by theColonial Laws Validity Act (see Naden v. The King1); and why on theother hand, after the Statute of Westminster, the Parliament of Canadahad power to do just that thing, first with regard to criminal appeals{British Coal Corporation v. The King*), and, later, with regard toappeals generally (A. G. Ontario v. A.O. Canadas) and, in the course ofabolishing the latter, to enact that the “Judicial Committee Act 1833Ch. 41 of the statutes of the United Kingdom of Great Britain and Ireland1833 and the Judicial Committee Act 1.844, Ch. 69 of the statutes of theUnited Kingdom of Great Britain and Ireland 1844, and all orders, rulesor regulations made under the said Acts are hereby repealed in so far as thesame are part of the law of Canada.”
The complement to the injunction contained in section 21 of the 1833 Actis, for Ceylon, the sections of its local legislation which have already beenreferred to, section 40 of the Courts Ordinance and section 334 of theCriminal Procedure Code. Between them, these various legislative provi-sions establish that the Privy Council appeal is part of the judicial systemof Ceylon, a part of the structure of original and appellate Courts by which,legal decisions, judgments, decrees and orders are passed and recorded.
It is not as if the Judicial Committee was in essence an English institu-tion or an institution of the United Kingdom. On the contrary, as LordHaldane said in Alex. Hull & Co. v. M’Kenna supra, it is “ not a body,strietlj speaking, with any location “ It is not ”, be said, “ an English,body in any exclusive sense. It is no more an English body than it isan Indian body, or a Canadian body, or a South African body, or, for thefuture, an Irish Free State body ”. If and when a territory having consti-tutional power to do so, as Ceylon now has, decides to abrogate the appealto the Judicial Committee from its local Courts, what it does ia to effectan amendment of its own judicial structure.
It remains now to inquire whether there was anything in the establish-ment of independence for Ceylon that, expressly or impliedly, broughtabout that amendment. The instruments employed were the CeylonIndependence Act 1947 of the Parliament of the United Kingdom (11 and12 Geo. VI C.7) and the several Orders in Council setting up the CeylonConstitution, of which the Ceylon (Constitution) Order in Council 1946(hereinafter referred to as the 1946 Order) is the substantive enactment.It can be said at once that nowhere is there to be found in these instrumentsany reference to the Privy Council appeal, its continuance or itsextinguishment. Independence as such did not, of course, alter the existingcorpus of law in Ceylon. The only question therefore can be whether
1 [1926] A. C. 482.
» [1947] A. 0.127.
* [1936] A. G. 600.
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443
the appeal was affected by some necessary implication derived from thefact that its continuance would be in plain conflict with what wasactually established.
Their Lordships can discover nothing that bears on this in the terms ofthe Ceylon Independence Act. Its main purpose was to ensure that thenew Parliament to be set up in Ceylon was not to be in any sense asubordinate legislature. It was to have the full legislative powers ofa Sovereign independent State. Thus Acts of the United KingdomParliament were not to extend to Ceylon in the future, unless enactedwith her consent and at her request; the Colonial Laws Validity Act 1865was not to apply to any law made by the Parliament of Ceylon ; thatParliament was to have full power to make laws with extra-territorialeffect; and, finally, no law made by the Parliament of Ceylon was to bevoid or inoperative on the ground of repugnancy to the law of Englandor to any existing or future Act of the United Kingdom, or to any order,rule or regulation made under any such Act, and the powers of the CeylonParliament were to include power to repeal or amend any such Act,order, rule or regulation, so far as the same was part of the law of Ceylon(see 1st Schedule 1 (2)). This was a liberating Act in the sense that itfreed the Parliament of Ceylon from every one of the constitutionallimitations which, traditionally, inhibited the law-making powers ofsubordinate legislatures in the British dominions. But the presentquestion is not about the law-making powers of the Parliament of Ceylon ;and there is nothing in the provisions quoted or in the only materialprovision of the Act not dealing with legislative powers, that declaring(section 1 (2)) that His Majesty’s Government in the United Kingdomwere in future to have no responsibility for the Government of Ceylon,with which the continuance of the Privy Council appeal would beinconsistent or conflicting.
The 1946 Order is divided into m'ne separate parts, of which much themost considerable is, naturally, that dealing with the Legislature, Part HI.Part II provides for the appointment and functions of a Governor-General:Part IH, for the setting up of the Legislature : Part IV, for electoraldistricts : Part V, for the Executive : Part VI for the Judicature, andPart VII for the Public Service.
Part HI, which embraces sections 7 to 39, begins by enacting that thereis to be a Parliament of the Island consisting of His Majesty and twoChambers. By section 29 there is conferred upon the Parliament power tomake laws for the “ peace, order and good government ” of Ceylon, subjectto certain protective reservations for the exercise of religion and thefreedom of religious bodies. The words “ peace, order and good govern-ment ” connote, in British constitutional language, the widest law-makingpowers appropriate to a Sovereign. Apart from the fundamental reser-vations specified in section 29, the Order contained only two qualificationson the full legislative authority of Parliament. One was set out in thefollowing section, section 30, which reserved to His Majesty power byOrder in Council to legislate on certain matters of defence, security and
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VISCOtJNT RADCLIFJ?B—ibraUbba v, The Queen
foreign relations. The other was the provision made in section 39 thatLaws relating to certain Ceylon Government stocks «hnnlH he capable ofdiaallowanoe by His Majesty through a Secretary of State.
The reservation embodied in section 30 w&s relinquished in the next yearby the Ceylon (Independence) Order in Council 1947 (see section 4). This-came into force on the 4th February 1948, and as from that date, apartfrom the minor quali6cation introduced by section 39, the Parliament ofCeylon enjoyed unrestricted legislative power.
To turn to Part V. It is entitled “ The Executive ” and contains twoformative sections, of which the first, section 45, declares that the executivepower of the Island is to oontinue vested in His Majesty, exerciseable onhis behalf by the Governor-General in accordance with the provisions ofthe Order and any other law for the time being in force, and the second,section 46, provides that the general direction and control of the govern-ment of the Island are to be in the charge of a Cabinet of Ministersappointed by the Governor-General and responsible to Parliament. Theremaining sections of Part V are only supplementary.
Part VI is entitled “ The Judicature ”. There is nothing in this Partthat deals with the structure of Courts in the Island, with appeals or withthe legal system generally. It is concerned only to regulate the appoint-ment and tenure of office of Judges of the Supreme Court (section 52) andto set up a Judicial Service Commission (sections 53-56), in which is to bevested the appointment, transfer, dismissal and disciplinary control ofjudicial officers.
Their Lordships can now summarise what is, in their opinion, the effectof Ceylon’s attainment of independence and of the accompanying legislativeprovisions, so far as concerns the present right of Her Majesty to makeOrders in Council affecting Ceylon. There is no power to legislate forCeylon: to do so would be wholly inconsistent with the unqualified powersof legislation conceded by the 1946 Order. There is no power to partici-pate in the government of Ceylon through the medium of Orders in Council,since the control and direction of tbe government of the territory are inthe charge of the Cabinet of Ministers, responsible to the Parliament ofCeylon, and in the Governor-General according to his constitutionalpowers. But the structure of Courts for dealing with legal matters andthe system of appeals existing at the date of independence have not beenaffected by any of the instruments that conferred that status, and itfollows that, inasmuch as an Order in Council made upon report of theJudicial Committee is the effective judgment to dispose of and implementthe Committee’s decision of an appeal, the power to make such an Orderremains unabated.
Their Lordships must observe in conclusion, having regard to one or tworemarks that appear in the judgment of the learned Chief Justice, that itseems to them, a misleading simplification to speak of tbe continuance ofthe Privy Council appeal as being inherently inconsistent with Ceylon’sstatus as an independent territory or as being bound up with a relation-ship between Her Majesty and colonial subjects. Historically, tbe
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assumption would in itself be inaccurate, and, constitutionally, it isunnecessary. For, if it is recognised, as it must be, that tbe legislativecompetence of the Parliament of Ceylon includes power at any time, ifit thinks right, to modify or terminate the Privy Council appeal from itsCourts, true independence is not in any way compromised by the conti-nuance of that appeal, unless and until the Sovereign legislative bodydecides to end it.
For these reasons their Lordships are of opinion that the Board hasjurisdiction to entertain the appeal for which the Petitioners seek specialleave and in due course to recommend to Her Majesty the making ofwhatever Orders in Council may be required to admit it and dispose of it.Having regard to what has been said at the opening of this Opinion theyhave humbly advised Her Majesty to grant leave to appeal in this case.
Leave, to appeal granted.