30 September, 2020

Blog

The Right Of Appeal To The Privy Council 

By Nihal Jayawickrama

Dr. Nihal Jayawickrama

The circumstances in which the right of appeal to “Her Majesty in Council” was abolished in 1971 has been the subject of much unfounded speculation. It was attributed at the time to be a strategy to prevent the late C. Suntheralingam from challenging the legitimacy of the Constituent Assembly before the Privy Council. More recently, the abolition has been attributed to the late Felix R. Dias Bandaranaike’s “displeasure” over “some decisions of the Judicial Committee, notably the landmark judgment acquitting the 1962 abortive coup accused in the case of Liyanage et al v. The Queen (1967)” being one such example. Dissatisfaction with the performance of our judiciary, especially since the enactment of the 1978 Constitution, has led some to wish that the abolition had never occurred.

The decision to “discontinue appeals to the Privy Council and to establish a new judicial tribunal to adjudicate on constitutional issues as well as to entertain appeals from the Supreme Court” was first taken in 1957 by the Joint Select Committee of the Senate and the House of Representatives appointed on the initiative of the late Prime Minister S.W.R.D. Bandaranaike. That pioneering effort came to an untimely end with the assassination of Mr. Bandaranaike in 1959.

In 1970, shortly after I assumed office as Permanent Secretary to the Ministry of Justice, I proposed, and the Minister of Justice, Senator J.M. Jayamanne agreed, that action should be initiated to abolish appeals to the Privy Council.  I had discussions with the Director of the British Institute of International and Comparative Law in London on the procedure followed in this regard by other former British colonies and dominions. With the benefit of that information, and with the assistance of the Legal Draftsman, Percy de Silva, I prepared a draft Bill which was submitted to, and approved by, the Cabinet. 

The Court of Appeal Bill

The Court of Appeal of Ceylon Bill provided that no appeal shall lie or be brought from any judgment of the Supreme Court to “Her Majesty in Council”. It sought to establish the Court of Appeal of Ceylon, consisting of a President and of not more than six other Judges appointed for a period of five years. That Court would be vested with exclusive ultimate appellate civil and criminal jurisdiction, including in respect of prerogative writs and on the interpretation of the Constitution. The Bill also provided for the reference by the Governor-General for the opinion of the Court any question of public importance, whether of law or of fact.  When enacted, the Act would mark the achievement of judicial independence for Ceylon after 200 years. Under the Dutch, the Raad Van Justitie in Batavia was our court of final appeal. From the early 20th century, the Judicial Committee of the Privy Council had been our supreme judicial tribunal.  

Reasons for abolition

On 29 March 1971, I explained to the media that the two principal reasons for this initiative were: 

(a) It was inconsistent with our sovereignty, 23 years after Independence, that our court of final appeal should be located six thousand miles away in the United Kingdom, and be in the form of a Judicial Committee of the Privy Council consisting of judges who were British Law Lords appointed by the Queen.  

(b) The average minimum cost of an appeal to the “Queen in Council” was 4000 pounds remitted in sterling. It was possible to lodge an appeal “in forma pauperis” (pauper appeal), and I had done so myself on occasion, but in such event, the choice of the solicitor and the barrister who would argue the appeal was beyond the control of the appellant.

Proceedings in Parliament

On 9 July 1971, the Court of Appeal Bill was presented to the House of Representatives by Maithripala Senanayake, Minister of Irrigation, Power and Highways, and was ordered to be printed. On 10 August 1971, on Mr Senanayake moving the second reading, the House debated and passed the Bill on the same day by an overwhelming majority. On 25 August 1971, Senator A.P. Jayasuriya, Acting Minister of Justice, presented the Bill to the Senate but the adjourned debate on it was aborted when the Senate was abolished. Consequently, on 22 October 1971, the Bill was again presented to the House of Representatives by T.B. Ilangaratne, Minister of Foreign and Internal Trade, and was passed on the same day by a two-third majority. The Bar Council welcomed the decision to abolish appeals to the Privy Council as “a progressive one”, and expressed the hope that “only persons with high academic qualifications, judicial experience or specified professional standing” should be eligible for appointment.

Transitional arrangements

Meanwhile, I visited London in September 1971 to discuss the transitional arrangements with the Privy Council. It was agreed that except for two (in which fees had been paid and counsel retained), the fifty pending appeals would be transferred to the Court of Appeal, and that provision would be included in our law for any Order of Her Majesty in Council made after the appointed date to have effect as if it were a judgment of the Court of Appeal. After my return I informed the Prime Minister that the Minister of Justice proposed to fix 15 November 1971 as the “appointed date” for bringing into operation the Court of Appeal Act. A courtroom was being prepared in Hulftsdorp, and an Acting Registrar (Mr. L.V.P. Wettasinghe) and  other staff had already been appointed. It was necessary to appoint the President of the Court immediately after the appointed date so that Rules of Court could be prepared, and arrangements made for the lodging of appeals.

Constituting the Court

At a meeting I had with her, the Prime Minister emphasized that the new Court should have credibility both within and outside Ceylon. As the successor to the Privy Council, she emphasized that the Court of Appeal should be viewed as an independent and competent tribunal that enjoyed the confidence of all sections of the community. Her preference for President of the Court of Appeal was not the incumbent Chief Justice, H.N.G. Fernando, but the then President of the Geneva-based International Commission of Jurists, former Supreme Court Justice T.S. Fernando Q.C.  She indicated that minority ethnic and religious groups ought to be represented in the Court, and accepted my suggestion that initially three appointments be made, namely former Supreme Court Justice V. Sivasupramanium, Justice G.T. Samarawickrema QC, and Justice A.L.S. Sirimanne. The Attorney-General, Victor Tennekoon QC was later appointed as the fifth member of the Court. 

On 20 November 1971, 65-year old T.S.Fernando QC was sworn in as the first President of the Court of Appeal. In an editorial comment on this appointment, the pro-opposition Ceylon Daily News, several of whose directors had only recently been found by a commission of inquiry headed by him to have been guilty of wide-ranging offences under the exchange control laws of the country, commented thus: 

The independence of the judiciary is not merely institutional. It is also personal. The caliber of judges, the integrity of the individual, is as vital as the guaranteed independence of the institution. It is in this perspective that we welcome the appointment of Mr. T. S. Fernando QC as the first President of Ceylon’s Court of Appeal. While congratulating him on this, the crowning glory of his judicial career, we warmly commend the Prime Minister for her impeccable choice of this internationally known jurist, scholar and man of high integrity and accept it as a token of the Government’s respect for the vital principle of an independent judiciary.

The final sitting

On 11 January 1972, when the Judicial Committee of the Privy Council delivered the last two judgments in appeals from Ceylon, the Government, through our High Commissioner in the United Kingdom, Tilak Gooneratne, recalled Ceylon’s association with the Judicial Committee from the beginning of the 19th century, and expressed profound respect for the detachment, lucidity and wisdom of the Committee’s decisions over the years. In his response, Lord Wilberforce recognized the historical moment and expressed the hope that friendly relations would continue to be maintained between the judiciary and the legal profession of the two countries. That ceremony was believed to have been unique in that no such references had previously been made when a succession of former British colonies, including India and Pakistan, severed their links with the Privy Council. Both the Attorney-General and I were of the view that our departure should be respectful and dignified.

The inaugural sitting

On 9 March 1972, the inaugural sitting of the Court of Appeal took place at Hulftsdorp. The Chief Justice and the Judges of the Supreme Court were also accommodated on the Bench. In the Inner Bar sat the Attorney General, the Chairman of the Bar Council, and all the Queen’s Counsel. Below the Bench sat the District Judges of Colombo. Among the guests of the Court were the Speaker of the House of Representatives, Stanley Tillekeratne; the new Minister of Justice appointed in January 1972, Felix R.Dias Bandaranaike; and the Minister of Constitutional Affairs, Dr Colvin R.de Silva, all lawyers. The Attorney General, Victor Tennekoon QC, in welcoming the new institution, observed that:

It is my pleasant duty to say on behalf of the Bar that we welcome the establishment of this Court here in Ceylon. It has, of course, a difficult task ahead of it. Difficult because people will inevitably be comparing its performance with that of the Judicial Committee which it displaces. And it is here that the personages appointed as the court’s first President and as its first Judges give us great confidence in its ability to discharge its functions in no less distinguished, erudite and effective a manner than did its predecessor.

In responding, the President of the Court, Justice T.S.Fernando QC, commented that:

Our law is a tangled body of Customary law, precedents, Ordinances, and Acts of Parliament, some good, some not to good, but all dedicated in principle, even if not in fact, to the security of the subject, the maintenance of public order and the dispensation of justice. Sometimes these ends accord with one another, sometimes they are in contradiction, so that justice may be ill-served while order is most securely maintained. Sometimes the law, especially the written law, is too simple; sometimes it is too detailed; so that there is always a need for gloss and annotation and the conflict of opinions to arrive at its true intent.  A principle to which great jurists everywhere have subscribed is that it is the duty of a Court not merely to uphold the law but to ensure that the greatest justice possible is done within its imperfect framework.

Abolition of the Court of Appeal

The Court of Appeal survived for less than two years. It was unfortunate that the Administration of Justice Law which came into operation on 1 January 1974 abolished the Court of Appeal and established a new 21-member Supreme Court on the principle of a single appeal. That Supreme Court was also abolished in 1978 and replaced with a new 11-member Supreme Court after several members of the previous Court had been removed from office, notwithstanding the constitutional guarantee of security of tenure which they enjoyed. Under the 1978 Constitution, the independence and integrity of the judiciary has been severely compromised, and it is unfortunate that the proposed 20th Amendment to the Constitution seeks to further strengthen, rather than relax, presidential control of the judiciary.

Print Friendly, PDF & Email

Latest comments

  • 8
    1

    I have long been an admirer of Nihal Jayawickrema’s writings; nor do I think the Privy Council could be credited with a high degree of judicial integrity after the way it handled our Citizenship case in 1953. The way our Supreme Court dealt with it at the outset of Independence reinforced a culture of judicial servility. The Citizenship Act which required an applicant to prove father’s birth in Ceylon would have denied citizenship to most persons of age in 1948, irrespective of ‘race’.
    Such an absurd and inapplicable act rushed through Parliament and Supreme Court, was pushed through administratively, by singling out the Indian Tamil community for burden of proof.

    Administrative discrimination on which the jurisprudence of South Africa and even Britain has much to say was totally ignored in the Citizenship case – it was an indirect means of achieving indirectly, something that cannot be achieved directly.

    Our judicial system has suffered ever since. The integrity of the South African judiciary was built up by men such as J.H de Villiers and Rose-Innes. We have had no such leaders to build up ours. That is why the removal of the Privy Council appeal is I think a loss. It appears today that we are condemned to a long period of judicial servility, as socially and economically we hit the bottom.

    • 1
      9

      Dr Rajan Hoole
      Why did those estate Tamils refuse to become proud citizens of Mother India and live as equal citizens in an environment of their own language, religion and culture among their own kith and kin but opted to continue that most abject, servile life in Ceylon? PLEASE help me to understand this conundrum.
      .
      It was wrong to force them out but the most appropriate thing would have been to grant them DUAL citizenship. Offer them a voluntary CHOICE between Ceylon and India.
      .
      Even at this late stage India should consider this proposal I suggest.
      What do you think? It certainly is a CHOICE on their own accord.

      Soma

      • 0
        6

        Dr Rajan Hoole
        Another proposal of mine is to allocate a block of land in Jaffna for each family as a voluntary way out of that miserable life ( a blot in civilisation I would say).
        Again as an opportunity to their next generation to live as equals in an environment of their own language, religion and culture.

        Soma

        • 2
          6

          Soma,
          .
          I have a feeling that he is going to suggest Wellawatta or Kirulapone. Second choice Kandy.

        • 0
          7

          Those “unlike”s to my comments above are racist Sinhalese or a jealous Tamils I am confused.

          Soma

          • 5
            0

            Dear Soma : racist Sinhalese or a jealous Tamils
            Why not consider : Neither as next option.
            Just thinking as Sri Lankans and middle liners who in their own way act and think and not subscribing to just two possibilities you stated.

            • 0
              0

              My View
              You are most welcome to present your third possibility.

              Soma

    • 5
      1

      Rajan,
      I agree that in the citizenship cases, the Privy Council failed this country and its peoples. But it is the Supreme Court that initially retreated when section 29 was invoked in the citizenship cases, and came to the absurd conclusion that the citizenship legislation did not “upon their faces make the Indian Tamil community liable to any disability to which other communities were not liable”. In the Kodeeswaran Case too, even after a brave district judge had held that the Official Language Act of 1956 violated section 29 of the Constitution, the Supreme Court again retreated, finding an excuse not to address that issue, and dismissing the case on the ground that a public servant had no right to sue the Crown for the recovery of his wages. Even after the Privy Council rejected that conclusion and sent the case back to the Supreme Court to address the substantive issue, it failed and neglected to do so. In my view, a Supreme Court consisting of prosecutors from the AG’s Department and civil practitioners from the minor judiciary are not competent to address constitutional issues. We need a separate Constitutional Court.

    • 0
      1

      Dr Rajan Hoole
      A similar situation is likely to arise in the future in the context of a ‘political solution’ for Tamil speaking people scattered across the island.
      Over 50% of them presently live outside North East and NOT A SINGLE FAMILY out of them will be willing to move into a designated Tamil only Homeland I bet.
      .
      Let me ask you again:
      Why did those estate Tamils refuse to become proud citizens of Mother India and live as equal citizens in an environment of their own language, religion and culture among their own kith and kin but opted to continue that most abject, servile life in Ceylon? 
      .
      THIS TAMIL DESIRE TO LIVE AMONG THE SINHALESE can only be explained away as an inner acknowledgement within the Tamil mind of the superiority of the Sinhala Buddhist society. I may be wrong – I am open to an alternative explanation.
      Thanks

      Soma

  • 2
    0

    Dr Nihal Jayawickrama,

    What was the reason for the haste in abolishing appeal to Privy Council in 1971-72?

    While the new Republic Constitution was promulgated only months later on May 22 1972.

    Was there any hidden motive?

    It was striking to note that the Constituent Assembly especially formed to launch a new constitution was in session and the reason to bypass the constituent assembly is dubious.

    Also why was the senate abolished in 1971 without deliberating in the constituent assembly and awaiting for the new constitution?

    • 4
      0

      There was no hidden motive. The abolition process is a complex one and required time. As I have mentioned, arrangements had to be made for the transfer of certain cases, and the continued hearing of others. New legislation was required, and a new Court had to be established. The new constitution was being drafted outside the Parliament. The Constituent Assembly was functioning outside the established legal order. They were two different processes handled by two different ministries.

      The abolition of the Senate came about when the UNP majority in the Upper House began to reject legislation passed in the Lower House by a two-third majority. I recall Mr J.R.Jayewardene trying to persuade Senator A.F.Wijemanne, leader of the opposition in the Senate, not to be obstinate since he anticipated very well what the consequences would be.

      • 2
        0

        ” There was no hidden motive. “
        We respect Dr.NJ’s opinions. Very in depth in legal principles and integrity. But I have a feeling that part of the answer is below to satisfactotion. I would think, to make Tamils fells satisfied, srikrish’s question needs to be answered one day. Best way is to ail Sinhala Leadership come for TRO and tell their past experiences sincerely so other communities can feel relaxed.

  • 1
    0

    Wrong move. If Privy Council continued SL judiciary wouldn’t be manipulated by politicians.

    The decision of Privy Council on the Citizenship Act was correct. It is an internal matter for Ceylon as many other countries had similar laws. Even Britain would have done same if faced with the same crisis.

    ”Joka Valli” won’t be in parliament today if we had the Privy Council and Mahinda and Gota won’t be able to contest presidential elections.

  • 11
    0

    It shows how out of touch we were with realities of our society and culture in the years after independence. India, Sri Lanka , Pakistan embarked on creating British institutions in these barren soil.

    Does any Sri Lankan today believe there will be justice if he goes to the Police or the law courts ? Only the rich and powerful have a chance. The poor citizen will be stuck in the court system for the rest of his life, spend all his money and waste precious time.

    Look at some of our recent judges, Sarath Silva, Mohan Peiris, Vigneswaran , these chaps are politicians ! Did they judge fairly ?

    Our courts for sure go with the government in power. Already a convicted murderer is allowed to sit in parliament.

    I am told the present courts are very mediocre and inclined to go behind politicians for various benefits. When their children get married the VIP guests at the wedding are Ministers and MPS ! Our judges will hold with this powerful government at every turn.

    We cannot create a British model here. We should let village headman or priests or local politician to judge . The people will get the system they deserve then and everybody will be happy.

  • 3
    0

    I remember attending a seminar in 1972 where Dr.Colvin.R.de Silva who was the chief Architect of the Republican Constitution and Prof: A.J.Wilson Prof:Political Science addressed a meeting at Peradeniya campus.
    Abolition of appeals to the Privy Council was as a result of Kodeeswaran challenging the Govt: on the Language issue based on Section 29[2] of the Soulbury Constitution.
    Dr.Colvin , I believe ,made a slip when he called Kodeeswaran , a mere member of the clerical service, an impertinent guy!

    Dr. Nihal .J. is indeed very frank when he says above in a comment, that the Supreme Court[ then] dragged its feet in not making a ruling on the Constitutional issue on the matter as per the Privy Council observation.

    • 5
      0

      I am really surprised why Nihal J ommitted Kodeeswarans case. I have heard some of Friends from Peradeniya Engineering faculty mentioning what Colvin said ‘Kodeeswaran can fly a kite.’
      Issue is not abolishing of privy council Nihal J.
      It is the 1972 constitution that started the rot of removal of independent commissions and concentrating power on institutions without checks and balances and in 1978 JRJ carried the rot further. 20A is is not a higher degree rot from present to that of the rot of 1972 or 1978.

      • 0
        0

        I have referred to the Kodeswaran Case (please see my response above). I have mentioned that case as an example where the Supreme Court avoided the constitutional issue, and even when it was directed by the Privy Council to address the section 29 issue, it failed to do so.

    • 0
      0

      Plato,
      I have described in my article, the reasons that led to the abolition of the right of appeal to the Privy Council. They had nothing whatsoever to do with the Kodeeswaran Case. However, when the 1972 Constitution was being drafted, the reason that Dr Colvin R.de Silva gave for insisting that provision be made in it for Sinhala to be declared the official language (especially when Mrs Bandaranaike wrote to him requesting that language be left out of the Constitution) was to “once and for all end the Kodeeswaran Case” by giving the official language constitutional status. What I do not understand is why the Kodeeswaran Case was not listed for argument on the substantive issue for nearly three years after it was referred back by the Privy Council. A lawyer from whom I inquired suggested that a financial settlement might have been agreed upon with Mr.Kodeeswaran. I do not know whether that is correct.

      • 0
        0

        nihalj.

        I had known Kodeeswaran in his later years. He was bed-ridden for a couple of years and died in Feb:2019. By the time the Privy Council judgement was delivered Kodeeswaran was also enrolled as an Advocate of the Supreme Court in 1969. I am aware that Kodeeswaran fought his case not to enjoy pettyfogging salary increments but on a higher principle on behalf of the Tamils. Having known him only too well the suggestion of a financial agreement would amount to slander.

        The coalition Govt:of Mrs.B.came to power in 1970 and quickly abolished appeals to the Privy Council by enacting Act no 44 of 1971.
        So, the Supreme Court had to wait only for two years 1971-1969 to breathe a sigh of relief.

  • 4
    0

    Thanks Dr. NJ for putting the record straight. Manipulations exist at all levels in all countries. It is the sturdy mind bound by ethics who can resist the manipulations and inroads to independence in decision making. I know of no republic today which accepts the decisions of the Privy Council as the Court of Final Appeal. Singapore, though a republic, had provided for such appeals but later it restricted and finally abolished. So cries for continuation of the Privy Council is not relevant today. Even under 19A we have sordid details how the entities that should be independent were manipulated. What requires today is the breeding and nurturing independent professionals who can express such opinion without fear or favor and 19A, 20A or 21A is not relevant to the independent mind.

  • 7
    0

    Fantastic to note that here we see, most comments full of real value and the author himself answering some points raised. This is the level and standard that CT should strive for and somehow edit comments that serves not the real purpose, by selecting out some personal comments that only brings out the vile .

  • 1
    0

    The Supreme Court is the last safeguard against the infringement of the citizen’s fundamental rights by the governments.

    During such eventuality, the Supreme Court should take the side of the citizens against the governments.

    Governments are generally arrogant and often racially motivated and have the monopoly to use even violence.

    When even the Supreme Courts behave in such a cavalier, fashion what is the remedy for the ordinary powerless citizens?

    If even foreign jurisdiction is not the answer how could human rights be enforced?

  • 4
    0

    A society whose citizens refuse to see and investigate the facts, who refuse to believe that their government and their media will routinely lie to them and fabricate a reality contrary to verifiable facts, is a society that chooses and deserves the Dictatorship it’s going to get.

Leave A Comment

Comments should not exceed 200 words. Embedding external links and writing in capital letters are discouraged. Commenting is automatically disabled after 7 days and approval may take up to 24 hours. Please read our Comments Policy for further details. Your email address will not be published.