Liyanage v The Queen
| Jurisdiction | UK Non-devolved |
| Judgment Date | 1966 |
| Date | 1966 |
| Year | 1966 |
| Court | Privy Council |
Ceylon - Constitution - Legislation - Validity - Whether contrary to fundamental principles of justice - Legislation ad hominem and ex post facto directed to particular criminal proceedings - Severance of powers between legislature, executive and judiciary - Whether intra vires - Ceylon Charter of Justice, 1833 -
The Criminal Law (Special Provisions) Act, No. 1 of 1962, passed by the Parliament of Ceylon on March 16, 1962, contained substantial modifications of the Criminal Procedure Code, inter alia, by purporting to legalise ex post facto the detention for 60 days of any persons suspected of having committed an offence against the State, by widening the class of offences for which trial without a jury by three judges nominated by the Minister of Justice could be ordered, by allowing arrest without a warrant for waging war against the Queen and prescribing new minimum penalties for that offence and for conspiring to wage war against the Queen and overawe the government by criminal force, and by widening the scope of that offence. The Act also provided for the admission in evidence of certain confessions and statements to the police inadmissible under the Evidence Code.
The Act was expressed to be retrospective to cover an abortive coup d'etat on January 27, 1962, in which the appellants took part, and was to cease to be operative after the conclusion of all legal proceedings connected with or incidental to any offence against the state committed on or about the date of the coup or from one year after the date of the commencement of the Act, whichever was later.
The Criminal Law Act, No. 31 of 1962, substituted the Chief Justice for the Minister of Justice as the person to nominate the three judges before whom trial without a jury might be ordered, but left unaffected other provisions of the former Act, including those above summarised.
In April, 1965, the Supreme Court of Ceylon, consisting of three judges nominated by the Chief Justice, convicted the appellants of (1) conspiring to wage war against the Queen; (2) conspiring to overawe, by means of criminal force or the show of criminal force, the Government of Ceylon; and (3) conspiring to overthrow otherwise than by lawful means the Government of Ceylon by law established, and sentenced them to ten years' rigorous imprisonment and forfeiture of all goods, the minimum prescribed by the Act No. 1 of 1962.
On appeal to the Privy Council on the ground that the legislation of 1962 was ultra vires
Held, (1) that the Acts could not be challenged on the ground that they were contrary to the fundamental principles of justice. The Colonial Laws Validity Act, 1865, which provided that colonial laws should be void to the extent that they were repugnant to an Act of the United Kingdom applicable to the colony but not otherwise and should not be void on the grounds of repugnancy to the law of England, did not leave in existence a fetter of repugnancy to some vague and unspecified law of natural justice: those liberalising provisions were incorporated in, and enlarged by, the Ceylon Independence Act, 1947, of the British Parliament, the joint effect of which, with the
(2) That the Acts, directed as they were to the trial of particular prisoners charged with particular offences in a particular occasion, involved a usurpation and infringement by the legislature of judicial powers inconsistent with the written Constitution of Ceylon, which, while not in terms vesting judicial functions in the judiciary, manifested an intention to secure in the judiciary a freedom from political, legislative and executive control and, in effect, left untouched the judicial system established by the Charter of Justice, 1833. The silence of the Constitution as to the vesting of judicial power was considered with its remaining where it was and inconsistent with any intention that it should pass to or be shared by the executive or the legislature (post, pp. 693D–H, 696A–D, 697A–D). The Acts were accordingly ultra vires and void, and the convictions could not stand.
APPEAL (No. 25 of 1965) by special leave in forma pauperis from the judgment and sentence of the Supreme Court of Ceylon (Sansoni C.J., Fernando and de Silva JJ.) (April 6, 1965) whereby the appellant, Don John Francis Douglas Liyanage, and ten others were each convicted under section 115 of the Penal Code (as amended by the Criminal Law (Special Provisions) Act, No 1 of 1962) of three offences: (1) of conspiring to wage war against the Queen; (2) of conspiring to overawe, by means of criminal force or the show of criminal force, the Government of Ceylon; and (3) of conspiring to overthrow otherwise than by lawful means the Government of Ceylon by law established. Each of the appellants was sentenced to ten years' rigorous imprisonment and to forfeit all his property, as required by Act No. 1 of 1962. 1965. October 27, 28; November 1, 2, 3.
E. F. N. Gratiaen Q.C., H. W. Jayawardene Q.C. (of Ceylon), Dick Taverne Q.C., Walter Jayawardene, M. P. Solomon and S. J. Kadirgamar (Ceylon) for the appellants.
Victor Tennekoon Q.C. (Solicitor-General of Ceylon), R. K. Handoo and V. S. A. Pullenayegum for the Crown.
The following cases, in addition to those referred to in the judgment, were cited in argument: Fabrigas v. MostynF1; R. v. PictonF2Blankard v. GladyF3; Donegani v. DoneganiF4; Phillips v. EyreF5; Looker v. HalcombF6; Li Hong Mi v. Attorney-General of Hong KongF7; British Coal Corporation v. The KingF8; Ridge v. BaldwinF9; Le Mesurier v. ConnorF10; Holden v. JamesF11; Fletcher v. PeckF12; Lewis v. WebbF13; Decker v. FreemanF14; Vanzant v. WaddelF15; Bank of the State v. Charles CooperF16; Ervine's AppealF17 and Springer v. Philippine Islands.F18
1965. December 2. LORD PEARCE announced that their Lordships would humbly advise Her Majesty that the appeals should be allowed and that the convictions should be quashed.
1965. December 21. The reasons of their Lordships for allowing the appeal were delivered by LORD PEARCE.
This is an appeal against the judgment and sentence of the Supreme Court of Ceylon. The eleven appellants were each convicted of three offences in respect of an abortive coup d'etat on January 27, 1962. The offences were, first, that they conspired to wage war against the Queen, secondly, that they conspired to overawe by means of criminal force or the show of criminal force the Government of Ceylon and, thirdly, that they conspired to overthrow otherwise than by lawful means the Government of Ceylon by law established. Thirteen other defendants who were tried with the appellants were acquitted. Each of the appellants was sentenced to ten years' rigorous imprisonment and forfeiture of all his property.
The appellants were not tried by a judge and jury in accordance with the normal criminal procedure, but by three judges of the Supreme Court sitting without a jury. The trial was very long and complicated since so many defendants were involved, playing, as was alleged, different parts in the attempted coup. Indeed, the judgment of the court occupies more than 200 pages of the law reports (The Queen v. Liyanage & Ors.F19. The individual appeals raise many points which demand a very extensive consideration of evidence and factual detail.
All the appeals however share a common submission that, whatever be the details of fact or evidence, these convictions must be quashed owing to the invalidity of certain legislation in 1962 passed especially in order to deal with the trial of those persons who partook in the abortive coup. This legislation affected the mode of trial, the offences, the admissibility of evidence and the sentences. It was rightly agreed between the parties that, if this legislation was invalid, the convictions cannot be sustained. Their Lordships therefore decided that before embarking on a detailed investigation of the facts and evidence they should first decide, as a preliminary point, whether the legislation in question was invalid.
The detailed story of the coup d'etat of January 27, 1962, and how it was foiled at the very last moment, is set out in a White Paper of the Ceylon Government issued on February 13, 1962. This sets out the names of thirty alleged conspirators and the parts played by them. All the accused were named in it. It alleges that the coup was planned by certain police and army officers with the object of overthrowing the Government and arresting, inter alios, the Parliamentary Secretary for Defence and External Affairs since he could give orders to the Service Commanders which might frustrate the coup. The White Paper stated what the participants intended to do and gave...
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