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PUBLIC RECORD OFFICE

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CO. 882/10

PUBLIC RECORD OFFICE, LONDON)

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2. Objection was taken at the trial to the jurisdiction of the Court, on the ground that the prisoner, though having, under the Order in Council above referred to, the status of a person accompanying troops on active service, was not himself on active service," and was consequently, under Section 41 of the Army Act, not liable to be tried for treason by court martial. The objection was overruled. Secretary of State had been consulted on the point before the trial, and further correspondence has since taken place, by telegraph, in which the whole legal position is examined, so that it is not necessary to discuss the matter here.

The

3. The objection being overruled, the defence applied for an adjournment and moved the Supreme Court for a writ of prohibition under "The Courts Ordinance, 1889." The preliminary objection was taken that the Supreme Court had no juris- diction to issue a writ of prohibition against a court martial, and the objection was upheld. Copies of the judgments of the judges of the Supreme Court are attached

hereto.

4. The trial proceeded, and the prisoner was convicted and sentenced to penal servitude for life.

5. Subsequently the Court was moved for a mandate in the nature of a habeas corpus, under Section 49 of the same Ordinance, on the ground that the detention of the convict under the sentence of the court martial was illegal. It is obvious, from a perusal of the judgments in the writ of prohibition case, that the application was covered by the ruling in that case. But on this occasion a new point was taken. It was argued that the Order in Council under which the trial purported to be held was invalid, the King having renounced his power to legislate by Order in Council in regard to Ceylon in matters affecting the administration of justice by what is known as "The Charter of 1833," a copy of which will be found in the first volume of the current edition of the "Ceylon Legislative Enactments" on page 77. The Court disallowed the contention and refused the application. A copy of the judgment is attached.

6. Before this judgment was delivered "The Ceylon Indemnity Order in Council, 1915," had come into force, and, by virtue of paragraph 4 of that Order, the sentences of the military courts held in the Colony during the continuance of martial law (of which the sentence upon Hewawitarne was one) were confirmed. A copy of the Ceylon Gazette* promulgating the Indemnity Order in Council is attached.

7. It is obvious that there is no substance whatever in the present attempt to obtain special leave to appeal.

In the first place, the judgment in the writ of prohibition case was obviously right, and covers the application for the mandate of habeas corpus.

In the second place, there is no ground whatever for contending that in 1833 the Crown renounced its right to legislate by Order in Council on matters relating to the administration of justice or on any other matters (see Section 80 of the Charter).

Thirdly, in any case the conviction has been specially validated by Order in Council, and, even if it were possible to contend that the Crown had renounced its right to set up any other system for the administration of justice than that estab lished by the Charter, except by letters patent, it cannot be contended that the Crown thereby impliedly renounced its right to confirm a sentence passed by a military court during the operation of martial law.

19th October, 1915.

ANTON BERTRAM,

Attorney-General.

APPLICATION For a Writ of PROHIBITION TO BE DIRECTEd to the MemMBERS OF THE Field General Courts Martial assembled to try Edmund HewawitaRNE,

ACCUSED.

Coram.

Wood Renton, C.J. Shaw, J.

de Sampayo, J.

Argued and decided on

15th July, 1915.

Norton, Drieberg, Samarawickreme, and E. W.

Jayawardene for the applicant. Attorney-General, Solicitor-General, and Barber,

Crown Counsel, for the Crown.

* Ceylon Government Gazelte, No. 8786, 80th August, 1915.

Wood Renton, C.J.

THE Court is unanimously of opinion that the preliminary objection taken by the learned Attorney-General must be upheld, and that this application must be refused. We shall put in writing the reasons for our judgment, which will be delivered at 11.0 o'clock on Monday morning.

A. WOOD RENTON,

Shaw, J.

I agree.

de Sampayo, J.

I agree.

Full Court.

Sir A. Wood Benton, C.J. Shaw, J.

de Sampayo, J. Argued and decided 15th July, 1915.

Wood Ranton, C.J.

In re Moonesinghe.

Chief Justice.

15th July, 1915.

Eardley Norton, with Drieberg, Samarawick- reme, E. W. Jayawardene, and Goonetileke for the applicant.

The Honourable Mr. Anton Bertram, K.C., Attorney-General, with Bawn, K.C.,

Solicitor-General, and Barber, Crown Counsel, for the respondents.

THIS is an application under Section 46 of the Courts Ordinance for the grant of a mandate in the nature of a writ of prohibition to a Field General Court Martial, before which Edmund Hewawitarne was being tried on charges of treason and treason felony, on the ground that, inasmuch as the accused was not at the time of the alleged commission of these offences on "active service" within the meaning of Section 41, proviso (a), of the Army Act, 1881,* and the place at which the offence is said to have been committed was not "more than one hundred miles, as measured in a straight line, from any city or town in which the offender could be tried

by a competent civil Court," the military tribunal had no jurisdic- tion to entertain the charges. The Attorney-General took the preliminary objection that the Supreme Court could not issue a mandate in the nature of a writ of prohibi- tion to a court martial, and, after having had the advantage of hearing this question fully argued, we gave formal judgment upholding the objection and dismissing the application, but stating that the reasons for our decision would be delivered to-day. There is no doubt that in England prohibition lies to naval and military courts martial (see Grant v. Gouldt), but the powers of the Supreme Court of this Colony depend upon the Courts Ordinance, 1889 (No. 1 of 1889) (see In re Jaffna Local Board). Section 46 of that Ordinance, under which, as I have said, the present application was made, enables the Supreme Court to grant, inter alia, a mandate in the nature of a writ of prohibition "against any district judge, commissioner, magistrate, or other person or tribunal." But that section has to be construed in the light of the other provisions contained in it, as well as of the proviso to Section 4 of the same Ordinance. I will deal with the latter enactment first. It is in these terms:--

"Provided that nothing herein contained shall be held to affect the jurisdiction vested in, and exercised by, any Court or Courts under or by virtue of the provisions of any Imperial Statute or of any Ordinance or Ordinances now in force, except in so far as any such provisions shall be by this Ordinance expressly repealed or modified; or the jurisdiction of any Court which may be holden within the Island under or in pursuance of any Statute in that case made and provided for the trial of offences committed on the seas, or within the jurisdiction of the Admiralty, or under any Commis- sion issued or to be issued by the Lord High Admiral of England or the Commissioners for executing his office; or the jurisdiction of Village Tribunals, Committees, or Councils, or of any Municipal Magistrate, or of any special officer or tribunal legally constituted for any special purpose or to try any special case or class of cases."

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• 44 and 45 Vict., cap. 58. † (1792) 2 H. Black 100. ↑ (1907) 1 A.C.R. 128.

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