Ibealebbe V. The Queen

[IN THE PRIVY COUNCIL]

1963        Present  : The Lord Chancellor, Viscount Radcliffe,
 

Lord Morton of Henryton, Lord Morris of Borth-y-Gest, and Lord Guest

M. B. IBEALEBBE (alias Rasa Wattan) and another, Petitioners, and THE QUEEN, Respondent

PETITION FOR SPECIAL LEAVE TO APPEAL
S. C.14-17-D. C. (Criminal) Batticaloa, 126/1960

Privy Council-Jurisdiction to entertain an appeal from Ceylon in a criminal matter-Character and effect of an Order in Council by which the decision of the 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), ss. 333, 334-Courts Ordinance (Cap. 6), as. 39, 40-Revised Edition of the Legislative Enactments Act (Cap. 1), as. 2, 3 (1) (a), 12 (2)-Privy Council Appeals Act of 1833 (3 & 4 Wm. IV), s. 21- Judicial Committee Act 1844-Ceylon Independence Act 1947 (11 and 12 Ceo. 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 appeals from Ceylon before the Judicial Com­mittee of the Privy Council in criminal matters still exists and has not been abrogated by Ceylon's attainment of Independence.
 

The Order in Council which forms the instrument by which the decision of an appeal to the Privy Council is subsequently implemented is essentially a judicial act. As such it has no analogy with an Order in Council having legis­lative effect or with an Order in Council that is part of the administration of Government, except in the widest general sense that each within its category derives its ultimate force from some form of sovereign authority and thus can be said to " make law ".
 

The structure of Courts for dealing with legal matters and the system of appeals existing at the time of Ceylon's attainment of independence have not been affected by any of the instruments that conferred that status. While the legislative competence of the Parliament of Ceylon includes power at any time, if it thinks right, to modify or terminate the Privy Council appeal from its Courts, true independence is not in any way compromised by the continuance of that appeal, unless and until the Sovereign legislative body Decides to end it.
 

The Queen v. Hemapala (65 N. L. R. 313) overruled.

PETITION to the Judicial Committee of the Privy Council for special leave to appeal from a judgment of the Supreme Court.

E. F. N. Gratiaen, Q. C., with A. G. M. Ameer and T. O. Kellck, for the petitioners.

Neil Lawson, Q .C., with V. Tennekoon, V. S. A. Pullenayegum and Dick Taverne, for the Crown.

Dingle Foot, Q. C., with R. K. Handoo, as amicus curiae in support of the Chief Justice's view.

Sir Peter Rawlinson, Q .C., Solicitor-General, with J. R. Cumming-Bruce, for the Crown in the right of the United Kingdom.

Cur. adv. vult.

November 6, 1963.   [Delivered by  VISCOUNT RADCLIFFE]
 

On 31st October 1963 then- Lordships had before them a Petition lodged by the above-named Petitioners praying special leave to appeal to Her Majesty in Council from a judgment of the Supreme Court of Ceylon upholding their convictions in a District Court upon charges of causing hurt to certain persons. It was represented to their Lordships that the appeals involved an important issue in the administration of the criminal law of Ceylon relating to alleged misjoinder of charges and that there had recently arisen considerable confusion as to the law upon this issue owing to what were said to be conflicting decisions upon the point emanating from the Supreme Court in the exercise of its criminal jurisdiction on the one hand and the Court of Criminal Appeal on the other, and also from different judges of the Supreme Court itself.
 

Whether or not in these circumstances their Lordships would have thought it ri

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