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"(a) That a prisoner detained in any prison be brought before a court martial, or any Commissioners acting under the authority of any com]- mission from the Governor, for trial, or to be examined touching any matter pending before such court martial for Commissioners respectively."

It is plain that the jurisdiction is only ancillary and is intended to assist courts martial, and the provision, in a sense, negatives the idea of any power in the Supreme Court to control courts martial.

I have so far dealt with this matter on the assumption that, when the proviso to Section 4 of the Courts Ordinance declared 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." the word "herein" referred to Section 4 itself and not to the whole Ordinance. I may, however, observe that the learned Attorney-General stated his objection on the footing that the word herein " meant the whole Ordinance, and no argument. to the contrary was addressed to us by the learned counsel for the applicant, who, in fact, accepted that meaning, but contended that the proviso only declared that the courts martial were not to be affected by anything in the Ordinance when they had jurisdiction and not when they had not. That being so, it seems to me that Section 48 relating to pro- hibitions must be held not to apply to courts martial in any respect, inasmuch as the proviso, in my opinion, excludes generally the courts martial as Courts and not merely in respect of what may be alleged to be their rightful jurisdiction.

For these reasons I agree with the rest of the Court that the preliminary objection of the Attorney-General should be upheld and this application should be disallowed.

THOMAS E. DE SAMPAYO,

A.P.J.

True copy.

LLOYD L. Daniels,

Registrar.

IN THE MATTER of an Application for A WRIT OF HABEAS CORPUS TO PRODUCE THE BODY OF EDMUND HEWAWITARNE, Argued 6th September, 1915.

Ennis, J.

Elliott, with Samarawickreme in support.

This is an application under Section 49 of the Courts Ordinance for a man- date in the nature of a writ of habeas corpus to bring up before the Court the body of Edmund Hewawitarne, alleged to be illegally and improperly detained in the Welikkadde Jail on a warrant issued by a court martial.

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A similar application was before the Court in the case of W. A. de Silva (18 N.L.R.); and an application under Section 48 of the Courts Ordinance for a writ of prohibition has already been made and refused by the full Court in the of Edmund Hewawitarne, in whose behalf the Court is now moved (Supreme Court minutes, 15th July, 1915). I am in entire accord with the findings in both those cases, and the latter is, in any event, binding on me.

It is conceded that Edmund Hewawitarne is detained on a warrant issued by a court martial, and only one point not argued in the previous cases has been advanced in support of the application. It is contended that the Order in Council under which the court martial was held is ultra vires. The argument is that the Charter of 1833 made provision for the administration of justice, civil and criminal, and that no other provision could be made except by or under letters patent under the Great Seal.

Orders in Council and letters patent under the Great Seal are both means by which the King's pleasure is expressed (Anson, vol. I., (1), 50).

The Charter of 1833 takes the form of letters patent. It provided (Clause 4) that the entire administration of justice, civil and criminal, should be vested exclu- sively in the Courts constituted therein, and reserved (Clause 60) a right to the Crown to revoke and amend the Charter by letters patent under the Great Seal. The reservation is followed by an explanation that the Crown reserved such and the same rights and powers over the Island as if the Charter had not been made and notwithstanding anything in it to the contrary.

It was found necessary to amend the Charter in 1843, and this was done by further letters patent, which recited that the Charter required amendment from time to time, that no authority existed in the Island competent for that purpose, " that such amendments can be made only by supplementary or additional Charters," and in consequence were scarcely practicable. The letters patent of 1843 then

gave power to the Governor in Legislative Council to make provision by Ordinance for the better administration of justice, and provided that such legislation should have the same force and effect as any other laws and Ordinances of the Legislative Council.

The contention for the applicant is practically based on the recital contained in these letters patent.

The letters patent made no provision for courts martial, and no Ordinance made by the Governor exists making any such provision.

Counsel for the applicant did not, however, mention the letters patent of 19th March, 1833, which constituted the Legislative Council reserved the right of the Crown to legislate by Order in Council for the order, peace, These letters expressly and good government of the Island.

The Order in Council of the 26th October, 1896, which was published and came into force in the Island on the 5th August, 1915, provided, with certain limitations, that every person within the limits of the Colony should be subject to military law for the purposes of the Army Act. It also made provision that civilians should, unless the Governor otherwise directed, be tried by civil courts for offences for which they would be so triable if not subject to military law.

The contention of counsel that the Order in Council is ultra vires does not find support when all the letters patent are considered. Charter could only be altered by letters patent referred to a circumstance which the The recital in 1843 that the letters patent of 1843 were meant to amend. empowering the Governor in Legislative Council to make better provision for the The amendment was effected by administration of justice by Ordinances, i.e., to act in accordance with the instruc- tions contained in the letters patent of 1833 constituting the legislative body-- letters patent which declared and reserved the right of the Crown to legislate by Order in Council.

There is, however, another point which occurs to me--the Charter of 1833 in providing for the administration of justice, civil and criminal, dealt only, in my opinion, with the administration of justice by civil courts in the ordinary course of law. Courts martial are avowedly outside the ordinary course of law (Anson, vol. II., 275), and the prerogative of the Crown to establish courts martial in certain contingencies was in no way affected by the vesting of civil and criminal jurisdiction in the Courts established by Charter.

On both these grounds the argument, in my opinion, fails, and I dismiss the application.

G. F. M. ENNIS,

Colombo, 9th September, 1915.

Senior Puisne Justice. True copy,

LLOYD L. DANIELS,

COLOMBO COURT No. 3, 14TH JULY, 1915. Proceedings.

A.-Order convening the Court.

AT Colombo, Ceylon, this 12th day of July, 1915.

Registrar.

Whereas it appears to me, the undersigned, an Officer in Command of the Troops, Ceylon, on active service, that the persons named in the annexed schedule, and being subject to military law, have committed the offences in the said schedule mentioned:

And I am of opinion that it is not practicable that such offences should be tried by an ordinary general court martial :

I hereby convene a field general court martial to try the said persons, and to consist of-

President:

Artillery.

Lieutenant-Colonel R. L. Muspratt-Williams, Royal Garrison

Members: Lieutenant-Colonel E. J. Hayward, Ceylon Artillery Volunteers: Lieutenant R. N. G. Scott, 28th Punjabis.

H. MALCOLM, Brigadier-General, Commanding the Troops, Ceylon Command.

X

PUBLIC RECORD OFFICE

1. kl. kk L

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