Application For A Writ Of Habeas Corpus For The Production Of The Body Of W. A. De Silva

Present  : Wood Renton C.J.    1915.

Application for a Writ of Habeas Corpus for the production
of the Body of W. A. DE SILVA.

Application for a writ of habeas corpus-Martial law.

The Supreme Court has full power to review by the issue of writs of habeas corpus the legality of arrests and detentions under the ordinary naval and military law. But when " martial law" (i.e., the assumption by the officers of the Crown of powers which they deem necessary for the protection of the Colony in view of the existence of what is known as an " actual state of war") is involved the functions of Municipal Courts is limited. They have the right to inquire, and the duty of inquiring into the question of fact, whether an " actual state of war " exists or not. But when once that question has been answered in the affirmative, the acts of the military authorities in the exercise of their martial law powers are no longer justiciable by the Municipal Courts.

THE facts are set out in the judgment.

A. St. V. Jayewardene (with him Drieberg, Samarawickreme, and Canakeratne).-There is no charge against Mr. de Silva. His detention is sought to be justified under martial law. Martial law is only necessary when there is war, or when there is an actual insurrection. The present disturbances can in no sense be termed an insurrection. They are riots. Rioting is not a sufficient ground for proclaiming martial law. Even if martial law was necessary at the start, there are no disturbances now; matters are tranquil at present. The Civil Courts have been sitting all along. Martial law

has, therefore, ceased to exist. See Ex parte Marais.1 Civil Courts can issue writs of habeas corpus. (Ex parts Blake,2 King v. Suddis,3 In re Allan,4 In re Douglas.5)

Anton Bertram. K.C., A.-G. (with him Bawa, K.C., Acting S.-G., for the Crown).-There is war raging in Europe, and the whole Empire is in a state of war. The fact that Civil Courts are sitting is not sufficient to show that we are not in a state of war and that martial law is unnecessary. See Ex parte Marais.6

He also referred to 1 Stephen's Criminal Law 214 on martial law in Ceylon in 1848, and the Report of the Royal Commission.

The Attorney-General also stated that in the opinion of His Excellency the Governor the time had not come for withdrawing martial law.

Jayewardene, in reply.-The applicant's affidavit that all things are quiet has not been contradicted.

Not only have the Civil Courts been sitting, but the Government have appointed additional Judges to cope with the additional work. That is a strong circumstance showing that things are now quite tranquil.

He referred to Attorney-General v. Tilonko.7

June 29, 1915. WOOD RENTON C.J.-

This is an application under section 46 of the Courts Ordinance for a mandate in the nature of a writ of habeas corpus. The affidavits submitted by both sides show that the applicant, Wilmot Arthur de Silva, was arrested on June 21 and is being detained in military custody by the orders of the General Officer Commanding the Troops, who has justified the arrest and the detention on the ground that he is acting in the exercise of his powers under martial law. By virtue of a Proclamation dated August 5 last year, bringing into operation an Imperial Order in Council of October 24, 1896, all persons in this Colony are subject to military law, as if they were actually accompanying His Majesty's forces. By a later Proclamation dated June 2 in the present year His Excellency the Governor declares that the maintenance of order and The defence of life and property in the Provinces to which the Proclamation shall be made applicable have been committed to Brigadier-General Malcolm, the Officer Commanding the Troops, and that he is authorized " to take all steps of whatever nature that he may deem necessary for the purposes aforesaid." This Pro

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