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PUBLIC RECORD OFFICE

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C.O. 882/10

PUBLIC RECORD OFFICE, LONDON

IALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC-

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A court martial is admittedly a tribunal constituted "by virtue of the pro- visions of an Imperial Statute," and it is equally indisputable, and undisputed, that these tribunals possess a general jurisdiction over the offences of treason and treason felony, although there are certain cases in which that jurisdiction has been barred It appears to me that when the proviso in question enacts that nothing contained in the Ordinance "shall be held to affect the jurisdiction vested in, and exercised by," Courts of this character, it must be taken to contemplate the general jurisdiction of these tribunals alone. The exception created by the proviso would be rendered nugatory at once if we were to hold that the Supreme Court has the right to go into the question whether that jurisdiction can or cannot be exercised against a particular person. I was inclined at one stage in the argument to think that the generality of the expression "other person or tribunal" in Section 46, might, perhaps, bė regarded as such an express modification of its scope as the proviso itself contem- plates. But, on further consideration, I came to the conclusion that this point was not tenable, for the following reasons. In the first place, Section 46 does not deal "expressly ", with the matter at all. In the next place, the use of the word "person in that section may find its explanation in the circumstance that a writ of mandamus, for which also the section provides, is issuable to individuals as well as to tribunals. Finally and here I come to deal with the second of the two points above mentioned— the provisions of Section 46, viewed, as they must be viewed, in their entirety, seem to me to exclude the idea that the issue of a writ of prohibition to a court martial could have been intended by the legislature. Section 46 of the Courts Ordinance enables the Supreme Court to "inspect and examine the records of any Court," and-subject to the modification as regards criminal cases now embodied in Section 422 of the It is Criminal Procedure Code to transfer causes from one Court to another. obvious that powers of this description cannot be exercised in regard to courts martial.

Mr. Eardley Norton strongly pressed upon us the argument that, if the Attorney-General's objection were upheld, we should be powerless to interfere if a number of irresponsible persons, erroneously describing themselves as a court martial, purported to act as such, or if a village committee proceeded to entertain a charge of murder. As regards the village committee the legislature has provided a right of appeal, which, in the case suggested, would be promptly exercised, to the Government Agent and to the Governor in Executive Council, and the Supreme Court, as I indicated the other day in my judgment in In re de Silva, has full power by the issue of a habeas corpus to compel the production of any person who alleges that he has been illegally detained in custody for the purpose of satisfying Our itself as to the grounds in which that detention is sought to be justified. judgment in this case will in no way conflict with the decision in In re de Silva.* There a habeas corpus was issued on the ground that the applicant complained that he had been illegally arrested and detained in custody by the military authorities. The General Officer Commanding the Troops submitted to this Court an affidavit justifying the arrest and the detention, on the ground that he was exercising his powers under the martial law in force in the Colony, The application was dismissed because the Court was satisfied that, in the present state of the Empire and of the Colony, the act of the military authorities was not justiciable by a muni- cipal tribunal. If any such body of irresponsible persons as the argument that I have been dealing with refers to were to attempt ex proprio motu to constitute them- selves a court martial and to act accordingly, the persons against whom they endeavoured to exercise jurisdiction would have little difficulty in obtaining relief by an application to this Court for habeas corpus.

Shaw J.

I agree.

A. WOOD RENTON,

Chief Justice.

True copy.

LLOYD L. DANIELS,

* Supreme Court Minutes, 20th June, 1915.

Registrar.

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In re Edmund Hewawitarne.

THERE is no question that in England the Superior Courts of Westminster have power at common law to issue writs of prohibition to courts martial, and, as may be gathered from the report of the leading case of Grant v. Gould, (1792) 2 H. Black- stone 69, the growth of that power was due to causes and exigencies which are peculiar to the history and constitution of England. It is, I think, useful to bear this aspect of the matter in mind when determining how far the jurisdiction of the This Court Supreme Court of Ceylon in regard to prohibition extends. has no such thing as jurisdiction at

law; its entire jurisdiction is dependent on and limited by statute. The Charter of 1833, which "issue first created the Supreme Court, conferred power and authority to mandates in the nature of writs of mandamus, procedendo, and prohibi- tion against any District Court" (Section 36). The District Court only was mentioned here, because the only subordinate court constituted by the Charter was the District Court. By reason of the very terms of this provision it is impossible

common

to hold that, so far as the Charter is concerned, the Supreme Court would be able to issue writs of prohibition to courts martial. This Charter is the foundation of our judicial system and the parent of the Administration of Justice Ordinance, 1868, and of the present Courts Ordinance, 1889, which I think must be read in the light of that Charter. By the time these Ordinances were enacted, the number of courts and judicial offices had grown. Accordingly we find that Section 22 of the Ordinance of 1868 empowers the Supreme Court to issue writs of prohibition "against any judge, commissioner, magistrate, justice, or other person or tribunal," and Section 46 of the Ordinance of 1880, with which we are more particularly con- cerned, empowers the Supreme Court to issue such mandates " against any district judge, commissioner, magistrate, or other person or tribunal."The omission of "justice" in this latter Ordinance is accounted for by the fact that the former The argument on system of proceedings by Justice of the Peace was abolished. behalf of the applicant in this matter is that the expression or other person or tribunal" includes courts martial. It is clear to my mind that it refers to persons and tribunals ejusdem generis with district judges, commissioners, and magistrates, and that the courts here contemplated are the courts established in the Island (to use the words of Section 5 of the former Ordinance and Section 4 of the latter Ordi- nance) "for the ordinary administration of justice," and not courts martial, which exercise not an ordinary but an extraordinary jurisdiction under circumstances of paramount necessity of State. This is made more clear by the structure of the entire provision. Section 22 of the Ordinance of 1868 runs thus:-

"The Supreme Court or any judge thereof shall have full power and authority to inspect and examine the records of the original Courts to grant and issue, according to law, mandates in the nature of writs of mandamus, certiorari, procedendo, and prohibition against any judge, commissioner, magistrate, justice, or other person or tribunal, and to make order for the transfer of any cause, prosecution, matter, or thing depending before it in its original jurisdiction from the District of Colombo, or any circuit to any other circuit.

or for the transfer of any cause, suit, or action, or of any prosecution, matter, or thing depending in any original Court to any other original Court," etc.

I quote the above section because it brings out the point I am dealing with more clearly, but Section 48 of the Courts Ordinance, 1889, exhibits the same structural features. It will be seen that the section confers not separate powers but one power to do several things which are all mentioned no flatu; namely, to inspect records, issue mandates, and transfer cases. The subject matter of this three-fold power is the same, viz., the Courts established by Section 5 of the Ordinance of 1868 and by Section 4 of the Courts Ordinance, 1889. This is emphasized in Section 22 of the first of these Ordinances, for it calls them "the original Courts," and these are defined in the interpretation clause. It cannot reasonably be argued, and it is not pretended, that the Supreme Court can inspect and examine the records of the courts martial or transfer the prosecutions pending before them to any other Court, and if this is the case it follows that neither does the power to issue prohibitions extend to courts martial. Moreover, it is inconceivable that, if such extraordinary courts as courts martial were intended to be affected, they would not have been mentioned specifically by name. In the Courte Ordinance, 1880. when the courts martial are for any pur- pose contemplated they are so specifically mentioned. For example, Section 50 provides that the Supreme Court may direct