1931    [IN THE PRIVY COUNCIL]

Present: Viscount Dunedin, Lord Blanesburgh,
and Lord Darling.

ABEYESEKERE v. JAYATILAKA.

Ceylon (Legislative Council) Order in Council-Sovereign's right of legislation-Inherent legislative powers over Colonies-Conquest and cession-Right to indemnify-Ceylon (Legislative Council) Amendment Order in Council, 1928.

His Majesty the King is vested with legislative powers, inherent in him by his title derived from conquest and cession of Ceylon, in so far as he has not parted with any of them by acts of his own.

In exercise of the legislative powers reserved to him. when parting with a portion of the right originally vested in him, His Majesty has the right to indemnify and give relief in respect of penalties incurred under Article XVI. of the Ceylon (Legislative Council) Order in Council, 1923.

APPEAL from a judgment of the Supreme Court.

November 9, 1931. Delivered by LORD DARLING-

This is an appeal from a decree of the Supreme Court of the Island of Ceylon dated March 20, 1930, confirming a decree of the District Court of Colombo dated March 11, 1929, whereby was dismissed an action which the plaintiff (the appellant in this case) had brought against the respondent-defendant. In that action the appellant as common informer, sued the respondent by virtue of Article 16 of the Ceylon (Legislative Council) Order in Council, 1923, alleging that he, having pecuniary interests in a contract with the Government within the meaning of Article 17 of the Order, had sat and voted in the Legislative Council on numerous occasions and had thereby rendered himself liable to penalties. Certain interlocutory matters were decided in the action, but before the action came on for trial an Order in Council, the Ceylon (Legislative Council) Amendment Order in Council, 1928, was passed and came into force on December 14, 1928. This order, after reciting that His Majesty had reserved to himself power to revoke, alter, or amend the order of 1923, enacted as follows: -

" II. No. action, prosecution, or legal proceeding whatsoever under the provisions of article XVI. of the Principal Order or otherwise, shall be brought, instituted, or maintained-

(a) for the recovery of any penalty incurred, or alleged to have been incurred, under the said Article, whether for the amount prescribed therein, or not; or

(b) for the recovery of any damages, the enforcement of any forfeiture or penal consequences or the declaration of any vacancy or incapacity-

against the Editor of the Sinhalese Etymological Dictionary

" for or on account of or in respect of his having sat or voted in the Council as an Elected Member thereof at any time between the 24th day of January, 1924, and the date of the coming into operation of this Order in Council after his seat became, or is alleged to have become, vacant by reason of his having any direct or indirect pecuniary interest in any contract with

the Government of the Island for or on account of the Public Service, or of his having accepted a public office under the Crown in the Island, within the meaning of Article XVII. of the Principal Order; and if any such action, prosecution or legal proceeding has been, or shall hereafter be brought or instituted, it shall be dismissed and made void, subject to such order as to costs as the Court may think fit to make. "

On January 28, 1929, the defendant filed a motion that the action be dismissed; and on March 11, 1929, the learned Judge of the District Court made an order dismissing the action, leaving each party to bear its own costs. This order was confirmed by the Supreme Court.

Against that order the present appeal is brought.

This case is of importance constitutionally, as raising the question of the right of His Majesty in Council to make the order of November 1, 1928. It is necessary, therefore, to state how the jurisdiction of His Majesty over Ceylon arose.

The Island