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 20^th 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 19^th 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 20^th Amendment to the Constitution seeks to further strengthen, rather than relax, presidential control of the judiciary.