section of the Penal Code so as to enact ex post facto a new offence to meet
the circumstances of the abortive coup. The Act empowered the Minister of
Justice to nominate the three Judges to try the appellants without a jury.
The validity of the Act was challenged as well as the nomination which had
been made by the Minister of Justice of the three Judges. The Ceylon
Supreme Court upheld the objection about the vires of some of the provisions
of the Act as well as the nomination of the Judges. Subsequently, the Act was
amended and the power of nomination of the Judges was conferred on the
Chief Justice. The appellants having been convicted at the trial before a court
of three Judges nominated under the amended Act, went up in appeal before
the Judicial Committee. It was contended that the Acts of 1962 offended
against the Constitution in that they amounted to a direction to convict the
appellants or to a legislative plan to secure the conviction and severe
punishment of the appellants and thus constituted an unjustifiable
assumption of judicial power by the legislature, or an interference with
judicial power which was outside the legislature's competence.
303. The Privy Council said in the course of their judgment that the pith
and substance of the law enactments was a legislative plan ex post facto to
secure the conviction, that although legislation ad hominem which is directed
to the course of particular proceedings may not always amount to an
interference with the functions of the judiciary, but in the present case they
had no doubt that there was such interference; that it was not only the likely
but the intended effect of the impugned enactments and that it was fatal to
their validity. They further said that the true nature and purpose of these
enactments were revealed by their conjoint impact on the specific proceedings
in respect of which they were designed and they took their colour, in
particular from the alterations they purported to make as to their ultimate
objective–the punishment of those convicted–and that these alterations
constituted a grave and deliberate incursion into the judicial sphere and
then, they quoted with approval the observations of Blackstone already
referred to; See Blackstone; Commetaries, Vol. I, p. 44. These observations
have great relevance to the case in hand. True it is that their Lordships did
not decide the question whether by a constitutional amendment the result
could have been achieved or not.
304. At the time when the Amendment was passed, the appeal filed by the
appellant and the cross appeal of the respondent were pending before the
Supreme Court. Clause (4) was legislation ad hominem directed against the
course of the hearing of the appeals on merits as the appeal and the cross
appeal were to be disposed of in accordance with that clause and not by
applying the law to the facts as ascertained by the court. This was a direct
interference with the decision of these appeals by the Supreme Court on their
merits by a legislative judgment.
305. If the amending body really exercised judicial power that power was
exercised in violation of the principles of natural justice of audi alteram
partem. Even if a power is given to a body, without specifying that the rules
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