Application For A Writ Of Prohibition To Be Directed To The Members Of A Field General Court Martial

1915.   [FULL BENCH.]

Present  : Wood Renton C.J., Shaw J., and De Sampayo A.J.

Application for a Writ of Prohibition to be directed to the
Members of a Field General Court Martial.

Writ of prohibition-Power of Supreme Court to issue writ to Court Martial-Courts Ordinance, No. 1 of 1889, ss. 4 and 46.

The Supreme Court has no power to issue a mandate in the nature of a writ of prohibition to a Court Martial.

THIS was an application under section 46 of the Courts Ordinance for the grant of a mandate in the nature of a writ of prohibition to the members of a Field General Court Martial before which Mr. Edmund Hewavitarana was being tried on charges of treason and treason-felony.

Anton Bertram, K.C., Attorney-General (with him Bawa, K.C., Acting Solicitor-General), took a preliminary objection to the application.

The Supreme Court has no power to issue a writ of prohibition to a Court Martial. The powers of the Supreme Court are strictly defined by the Courts Ordinance. It was held that the Supreme Court has the powers which are expressly or impliedly given to it by the Courts Ordinance, and no other, in In re Local Board, Jaffna1[(1907) 1 A. C. R. 128.]. Section of of the Courts Ordinance expressly enacts: " 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any Ordinance or Ordinances now in force, except in so far as any such provisions shall be by this Ordinance expressly repealed or modified. " The Court Martial is sitting under the authority of the Army Act and the Proclamation and Order in Council. The effect of the Proclamation and Order in Council was to put this country under military law. The Courts Ordinance, therefore, does not apply to Courts Martial, and the Supreme Court, whose powers are limited by the Ordinance, cannot therefore issue a writ of prohibition.

Section 46 of the Courts Ordinance authorizes the Supreme Court to issue a writ of prohibition to " any District Judge, Commissioner, Magistrate, or other person or tribunal. " The words " other person or tribunal " must be construed to refer to a person ejusdem generis with a District Judge, Commissioner, &c.

A writ of prohibition can only issue to an inferior Court. There is nothing in the Courts Ordinance to show that a Court Martial is

an inferior Court. The Supreme Court has power over a Court established under an Imperial Statute.

It is clear that section 46 does not give the Supreme Court power to issue a writ of prohibition, if we consider the section as a whole. Power is given under this section to examine records of any Court, and to transfer a case from one Court to another, on the ground that some question of law unusually difficult is likely to arise, and for other reasons. These powers could not be exercised in respect of a Court Martial proceeding. It is clear that section 46 did not have Courts Martial in contemplation.

Eardley Norton (with him Allan Drieberg, Samarawickreme, and Canekeratne).-Section 4 of the Courts Ordinance enumerates the established permanent Courts in the Island. If the section stood without the proviso, a village tribunal, which had jurisdiction in certain matters, would have no power to hear any complaint. The proviso was thus rendered necessary to protect the jurisdiction which certain tribunals had in certain cases. What the proviso says is: " There are special tribunals which have a limited jurisdiction in certain cases. The enumeration of the different Courts in section 4 should not prevent a special tribunal (mentioned in the proviso) from trying any matter over which it has a vested jurisdiction." The words of the proviso are " to affect the jurisdiction." The applicant does not ask Your Lordships to affect th

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