The Separation of Powers in New Dress
S. A. de Smith *
Mention the theory of separation of powers to an English con-
stitutional lawyer, and he will forthwith put on parade the Lord
Chancellor, the Law Lords, the parliamentary executive, delegated
legislation and administrative adjudication and shift the conversa-
tion to more significant topics. He tends to regard the theory as a
somewhat tiresome talking-point, appropriate for political philo-
sophers and inquisitive experts on comparative government, but an
irrelevant distraction for the English law student and his teachers.
He will be aware that the theory has manifested itself in a number
of different constitutional forms and institutions, that it means one
thing for the Americans and another thing for the French, that it
has caused a spot of bother in Australia and has some importance
in Ceylon; but in a system uncomplicated by judicial review of the
constitutionality of legislation it does not have to be taken too
seriously.
Canadian constitutional lawyers to-day can hardly afford to view
the theory with an easy nonchalance. The disquiet caused by some
of the very broad interpretations given to section 96 of the British
North America Act (which suggested that a province could not
vest strictly judicial functions in a board or tribunal established
under its own laws 1) Was partly allayed by the Privy Council’s
decision in the John East case ;2 and it had never been held that the
Federal Parliament’s power to allocate judicial functions or any
other class of function within its general sphere of competence
was circumscribed by implied constitutional prohibitions. On the
other hand, the Privy Council’s decision in the Boilermakers’ case
Professor of Public Law, University of London.
I See esp. Toronto Corporation v. York Corporation [1938] A.C. 415; Willis in
(1939) 53 Harv. L. Rev. 251 at 261-271, (1940) 18 Can. Bar Rev. 517.
2 Labour Relations Board of Saskatchewan v. John East Iron Works Ltd. [1949]
A.C. 134; Shumiatcher in (1949) 27 Can. Bar Rev. 131. But see Toronto v. Olympia
Edward Recreation Club Ltd. [1955] S.C.R. 454; Lasldn in (1955) 33 Can. Bar
Rev. 993 and Canadian Constitutional Law (3rd ed.) at 809-813.
3 Att.-Gen. for Australia v. R. and the Boilermakers’ Society of Australia [1957]
A.C. 288.
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(1957),3 an appeal from Australia, indicated that, despite the dif-
ferences in the structure and wording of the two constitutions, new
implications restricting legislative freedom in relation to courts and
the judicial power might still be discoverable within the interstices
of the 1867 Act. The enterprising constitutional prospector may well
be encouraged in his efforts when he attempts to place the recent
decision of the Privy Council in Liyanage v. R. 4 in a Canadian setting.
Liyanage’s case is possibly the most remarkable exercise in judi-
cial activism ever performed by the Privy Council. It is all the more
noteworthy because the Board has never shown a conspicuous zeal
for reading far-reaching implications into constitutions –
its re-
jection of the doctrine of the implied immunity of instrumentalities
in federations was particularly brusque 5 –
and because the aboli-
tion of the appeal from several Commonwealth countries has given
it the air of a senescent constitutional court. But appearances have
been deceptive. The profoundly interesting opinion of the Board
in Bribery Commissioner v. Ranasinghe 6 hinted at a new sophistica-
tion in its approach to constitutional problems. Liyanage’s case, also
an appeal from Ceylon, is already assured of an honourable mention
in every respectable casebook on constitutional law in the common-
law world.
The facts were as follows. In January 1962 an abortive coup
d’gtat took place in Ceylon. In February 1962 the Ceylon Govern-
ment issued a White Paper naming thirty alleged conspirators (in-
cluding the appellants) and asserting that “a deterrent punishment
of a severe character” had to be imposed on the guilty persons. In
March 1962 the Ceylon Parliament passed an Act which was clearly
directed against the participants in the coup. It created a new crimi-,
nal offence ex post facto and provided for a minimum sentence of
ten years’ imprisonment and mandatory forfeiture of property upon
conviction. It validated the detention (without production before a
magistrate) of persons alleged to have committed an offence against
the State at the time of the coup; it empowered the Minister of Jus-
tice to direct that a person accused of such an offence be tried by
three judges without a jury, and to nominate the judges for this
purpose; it altered the rules of evidence relating to offences against
the State so as to derogate from the legal protection afforded to
accused persons. All these provisions were given retroactive effect;
4 [1967) A.C. 259.
5 Bank of Toronto v. Lambe (1887) 12 App. Cas. 575; Webb V. Outrim [1907]
A.C. 81.
6 [1965] A.C. 172. See Gray in (1964) 27 Mod. L. Rev. 705; de Smith in Annual
Survey of Commonwealth Law, 1965 (ed. Wade), 9-11.
No. 4] THE SEPARATION OF POWERS IN NEW DRESS 493
most of them were to expire at the conclusion of legal proceedings
instituted in connection with the coup.
The three judges who had been nominated by the Minister upheld
a preliminary objection to their own jurisdiction. Executive nomi-
nation of the membership of a court was, so they held, an unconsti-
tutional encroachment on the judicial power of the State which was
reposed in the judicature alone.7
The Act was then amended to vest the power of nomination in
the Chief Justice. The court was reconstituted and the trial pro-
ceeded. Thirteen of the accused were acquitted. Eleven others were
convicted 8 and appealed to the Privy Council on the grounds, inter
alia, that the powers of the Ceylon Parliament did not include power
to make laws contrary to fundamental principles of justice and that
the legislative scheme involved either an unconstitutional assump-
tion of judicial power or an unconstitutional interference with the
judicial power on the part of the legislature. The Privy Council, in
an opinion delivered by Lord Pearce, rejected the first ground for
challenge but allowed the appeal on the basis that the impugned
legislation usurped the judicial power which was exercisable by the
judicature alone. The Acts were manifestly designed to procure the
conviction of particular individuals and to enhance their punish-
ment by ex post facto legislation; they were tantamount to a legis-
lative judgment.9 Moreover, they deprived the courts of judicial dis-
cretion in the imposition of sentences. Not all legislation ad hominem
was unconstitutional even if given retroactive effect. But if “such
Acts as these were valid the judicial power could be wholly absorbed
by the legislature and taken out of the hands of the judges.” 10 An
erosion of the judicial power was inconsistent with the clear inten-
tion of the Constitution.
The decision was founded entirely on constitutional implications
drawn from a version of the separation of powers doctrineo1 a The
Constitution of Ceylon has no comprehensive bill of rights;” it does
7R. v. Liyanage (1963) 64 New L.R. 313.
8 R. v. Liyanage (1965) 67 New L.R. 193. The judgment ran to over 200
pages.
9 [1967] A.C. 259 at 290-291. “The fact that the learned j d-2s declined to
convict some of the prisoners” was not, in the opinion of the Board, “to the
point” (ibid. at 289); sed quaere.
10Ibid. at 291.
loa Somewhat similar implications have been read into the Constitution of the
Republic of Ireland: ie. Buckley v. Att.-Gen. [1950] I.R. 67 and Deaton v.
Att.-Gen. [1963] I.R. 170. Neither of these decisions was cited in the Ceylon case.
11 Though section 29 guarantees religious freedom and prohibits communal and
religious discrimination; cf. Pillai v. Mudanayake [1953] A.C. 514.
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not in terms prohibit ex post. facto penal legislation. The Privy
Council thought it significant that the Constitution was divided into
Parts, one of which was entitled “The Legislature”, another “The Ex-
ecutive” and another “The Judicature”. Yet the Constitution, unlike
the constitutions of the United States and the Commonwealth ot
Australia, does not explicitly vest the legislative power in the legis-
lature or the judicial power in the courts or judicature. This dis-
tinction is perhaps indecisive, for in the United States and Australia
the federal courts in which the judicial power was to be initially
reposed were themselves created by the Constitution, whereas in
Ceylon a system of courts had exercised judicial power since early
colonial days and it was therefore unnecessary for the Constitution
expressly to endow the courts with judicial power. “The Constitu-
tion’s silence as to the vesting of judicial power is consistent with
its remaining, where it had lain for more than a century, in the
hands of the judicature.” But does it follow that the silence of the
Constitution on this matter “is not consistent with any intention
:houald pass to or be shared by, the executive or
that henceforth dt
the legislature” ?12 Again, although the provisions of the Constitu-
tion relating to the appointment of judicial officers by a judicial
body and protecting superior judges from arbitrary dismissal doubt-
less evince “an intention to secure in the judiciary a freedom from
political, legislative and executive control”, 13 does it follow that they
are appropriate only for a Constitution which intends judicial power
to be exercised by the judicature and the judicature alone ? The
more closely the argument of the Board is examined, the more
sweeping appear the inferences supporting its conclusions. This is
not to say that the decision in the instant case is to be deprecated,
but rather that the necessity of the implications on which it rests
ought to be viewed with a wary scepticism.
Canadians may recall the Privy Council’s observation
in the
Toronto v. York case that the “three principal pillars in the temple
of justice” (sections 96, 99 and 100 of the British North America
Act) were “not to be undermined.’ 1 4 The Constitution of Ceylon has
broadly similar provisions. It would not be difficult for a Canadian
court to hold invalid either federal or provincial legislation framed
in terms analogous to the legislation successfully impugned in both
the first and second Liyanage cases. 14a These cases, it should be em-
12 [1967] A.C. 259 at 287-288.
13 Ibid.
14 [1938] A.C. 415 at 426.
14a For possible constitutional implications of the cases for Australia, see
Nettheim in (1966) 40 A.L.J. at 228-231.
No. 4] THE SEPARATION OF POWERS IN NEW DRESS 495
phasised, presuppose the existence of a central core of activity for
the judiciary and the judiciary alone, immune from legislative or
executive interference. It does not follow that in no circumstances
can judicial power be vested in a body constituted otherwise than
as a court; 5 but given the major premise that (irrespective of sec-
tion 96) an exclusive domain is reserved to the judiciary by the
Constitution, tendencies to take a restrictive view of legislative
power to vest judicial functions in bodies other than courts or
judges 16 will surely be reinforced. The Liyanage decisions may well
have further implications. That the Canadian courts cannot validly
be deprived by ordinary legislation of their jurisdiction to deter-
mine questions of constitutionality may readily be conceded. 17 But
in Canada the broader view that the superior courts have a central
core of supervisory (and possibly appellate) jurisdiction, deducible
from the constitutional role assigned to the judiciary and untouch-
able by privative clauses, appears to have been entertained only by a
few constitutional lawyers.’8 This minority will take heart from the
15 See notes 1 and 2, ante.
16 In Ceylon the Constitution (s. 55) requires that “judicial officers” be ap-
pointed by the Judicial Service Commission (a judicial body) and not by the
executive; hence executive appointments of officers to adjudicate as members
of judicial tribunals are unconstitutional: Jailabadeen V. Danina Umma (1968)
64 New L.R. 419; Ranasinghe v. Bribery Commissioner, ibid., 449 (affd. sub.
nom. Bribery Commissioner v. Ranasinghe [1965] A.C. 172). Cf. United En
gineering Workers Union v. Devanayagam [1967] 2 All E.R. 367 (P.C.). But the
term “judicial officer” does not include a superior judge. Superior judges are ap-
pointed by the Governor-Genexal on ministerial advice (ss. 4(2), 52(1)). Lord
Pearce’s observation [1967] A.C. 259 at 287) that judges are appointed by the
Judicial Service Commission is to that extent incorrect. It does not seem that this
apparent misconception materially influenced the decision, since the connection
between the ratio decidendi and the literal text of the Constitution was somewhat
tenuous.
17 For a recent illustration of this principle in a Nigerian context, see Balewa v.
Doherty [1963] 1 W.L.R. 949 (P.C.).
18 See, e.g., Alliance des Professeurs Catholiques v. Labour Relations Board of
Quebec [1953] 2 S.C.R. 140 at 155-156, per Rinfret, C.J.; Lederman in (1956)
34 Can. Bar Rev. 1139 at 1175 f. We now have the authority of the Canadian
Supreme Court for the proposition that provincial legislation purporting to im-
munise the decisions of a Board from judicial review does not render such a
board a s. 96 court (Farrell v. Workmen’s Compensation Board [1962] S.C.R. 48);
but this would not necessarily preclude the Supreme Court from holding privative
clauses to be wholly or partly ineffectual by reference to a more general separa-
tion of powers doctrine. For conflicting views on the competence of Canadian
legislatures to determine the result of litigation in an individual case by retro-
active legislation, compare the Beauharnois case [1937] O.R. 796 with the Western
Minerals case [1953] 1 S.C.R. at 365 f.; see also Laskin, Canadian Constitutional
Law (3rd ed.), 195-196.
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amplitude of the propositions advanced by the Privy Council in the
second Liyanage case.
Finally, if the camel is swallowed it will be unseemly to strain
at a gnat. In both the United States and Australia it has been held
that the allocation of the federal judicial power to federal courts
has negative implications, including the principle that powers of
an essentially non-judicial character may not be vested in the courts
established by the Constitution unless they are merely ancillary to
the judicial. 9 The structure of the Canadian Constitution
is, of
course, different; but so is that of Ceylon,20 and if they are to be
read as importing aspects of the separation of powers doctrine for
the purpose of insulating the judiciary from extraneous pollution,
it will hardly be a daring innovation to hold that the judges cannot
be required to perform duties incompatible with their traditional
functions.
It is hard to escape the conclusion that Canadian judges may
now be faced with the prospect of being asked to ride an unrulier
horse than public policy. Through the medium of the Privy Council,
Ceylon has already served to mould the content of English adminis-
trative law (to the discomfiture of textile dealers and university
teachers) ; 21 now, through the same medium, it may be about to dis-
turb the serenity of Canadian constitutional jurisprudence.
19 For the United States, see, e.g., Federal Radio Commission v. General Electric
Co. 281 U.S. 464 (1930); for Australia, see the Boilermakers’ case [1957] A.C.
288. In the United States the concept of “legislative courts” which are entitled
to exercise non-judicial powers has mitigated the rigour of this doctrine.
20 The gulf between Canada and Ceylon is narrow compared with the gulfs
between Ceylon and Australia on the one hand, and Canada and Australia on
the other.
21Nakkuda Ali v. Jayaratne [1951] A.C. 66; Vidyodaya University Council v.
Silva [1965] 1 W.L.R. 77; though see now Shareef v. Commissioner for Registra-
tion of Indian and Pakistani Residents [1966] A.C. 47; Maradana Mosque Trustees
v. Mahmud [1967] A.C. 13; Durayappah. V. Fernando [1967] 2 All E.R. 152, for
a significant shift of emphasis.
