H. N. G. FERNANDO, S.P.J.—Gunaseela v. Udugama
I960 Present: H. N. G. Fernando, S.P.J., Sri Skanda Rajah, J., andP. A. Silva, J.A. G. GUNASEELA, Petitioner, and A. R. UDUGAMA (Major-General and Army Commander) and 4 others, Respondents
S. C. 414/04—Application Jor a Mandate in the nature oj a Writ ofCertiorari in terms oj Section 79 (1) oj the Army Act [Cap. 357)
Court Martial—Exercise of judicial power by such Court—Constitutional validity—
Army Act (Cap. 357), ss. 79 (1), 129—Constitution Order in Council, s. 55—
The Constitution Order in Council does not have the effect of invalidatingthe provisions of any pre-existing Statute in virtue of which judicial powerwas exercisable by a person not holding a judicial office. This rule appliesequally in a case like the Army Act where a Statute which was passed afterthe present Constitution came into operation merely re enacts pre-existinglaw.
The trial by a District Court Martial of an offence punishable under section129 of the Army Act does not constitute a usurpation or infringement of thejudicial power vested in the Judicature.
“ The exercise, by a Court Martial duly convened under the Army Act (Cap.357), of the powers of trial and punishment conferred by that Act, is not inconflict with the Constitution for two reasons.' * Firstly, that the Constitutiondid not expressly or by implication render such exerciso invalid or limit theright of the Legislature to re enact the traditional provisions of law concerningthe discipline, trial ami punishment of members of tho Armed Forces.Secondly, that the exercise of such powers by Courts Martial docs not constituteusurpation or infringement of the powers of the judicature as contemplatedin the Constitution. ”
A.PPLICATION for a Writ of certiorari under section 79 (1) of theArmy Act (Cap. 357).
Ranganathan, Q.C., with M. T. M. Sivardeen and Nihal Jaya-wickrema, for the Petitioners. V.
V. Tennekoon, Q.C., Solicitor-General, with H. L. dc Silva, CrownCounsel, for the Respondents,
Cur. adv. vult.
July 22, 1966. H. N. G. Fernando, S.P.J.—
This is an application for a Writ of Certiorari to quash the convictionof the Petitioners entered by a District Court Martial of an offencepunishable under section 129 of the Army Act (Cap. 357) and the sentenceof detention imposed by the Court upon that conviction.
2-H 1685—1,914 (2/67)
H. N. G. FERNANDO, S.P.J.— Gunascela v. Udugama
The principal matter argued on behalf of the Petitioners has been thatthere was an exercise of judicial power by the officers constituting theCourt Martial, who were persons not appointed thereto by the JudicialService Commission, and that such exercise conflicts with the principleof the Separation of Powers, which principle has been declared in therecent judgment of the Privy Council in Liyanage and others v. the Queen 1to be embodied in our Constitution.
The Crown has not contended, on the one hand, that the Court Martialhas not exercised judicial power ; nor on the other hand has it beenseriously argued on behalf of the Petitioners that membership of a CourtMartial is “ paid judicial office ” within the meaning of section 55 of theConstitution. A Court Martial is not a paid office ; it is a body consistingof Service Officers convened ad hoc for the trial of particular cases, andthe duty to serve as a member of such a Court is only one of the severalkinds of duties which a Service Officer can under the relevant Statutes becalled upon to perform. The office which entitled an Army officer topay and other emoluments is his substantive office in the Army, andservice as a member of a Court Martial is no more the basis of his entitle-ment to pay and emoluments than is his service in any other duty whichthe Army Act requires him to perform. A Court Martial bears noresemblance to a Labour Tribunal established under the IndustrialDisputes Act.
The Army Act was passed by the Legislature of Ceylon after the presentConstitution came into operation. At first sight therefore, there appearsto be scope for the argument that Parliament cannot validly provide forthe exercise of judicial power bj' a body consisting of Service Officers.But the reasons of this Court are being concurrently stated, in the case ofPanagoda v. Budenis Singho2 (arising under the Workmen’s Com-pensation Ordinance), in support of the conclusion that the Constitutionhad not the effect of invalidating the provisions of any pre-existingStatute in virtue of which judicial power was exercisable by a person notholding a paid judicial office. Those reasons apply equally in a casewhere an Act of Parliament merely re-enacts pre-existing law.
The Army Act, 1881, of the United Kingdom was, like many otherBritish enactments, part of the law of Ceylon long before the Independ-ence of Ceylon. In discussing this matter, it is convenient to refer tothe provisions of that Act as existing in 1930, and as reproduced inthe 1930 edition of Halsbury’s Statutes. Sections 4 to 41 of the Actdeclared a number of offences which, if committed “ by persons subjectto military law ”, were punishable by Courts Martial. Included in thecategory of persons subject to military law were :—
All officers on the active list of the regular forces, and all soldiersof the regular forces serving in any part of the world (sections175 (1) and 176 (1), read with section 190 (8) ).
(1965) 68 N. L. R. 265.
2 (1966) 68 N. L. R. 490.
H. N. G. FERNAXDO, S.P.J.—Qunaseela v. XJdugama
All persons serving as officers or men of any troops raised in a
Colony and serving under the command of an officer of theregular forces (sections 175 (4) and 176 (3)).
All officers and men of any force raised in a Colony, when attached
to or doing duty with United Kingdom forces ; (sections 175 (11)and 176 (8A) ).
If the law of a colony so provided, all officers aad men of any force
raised in the Colony (sections 175(12) and 176(11) ). TheCeylon Defence Force Ordinance 1910 accordingly provided thatthe Army Act, 1881, with specified modifications, would applyin specified circumstances to members of forces raised in Ceylonunder the Ordinance.
For a long period therefore the law o' Ceylon provided for the trial byCourts Martial of certain offences committed by “ persons subject tomilitary law ” of the above and other categories. These Courts wereconvened under the Army Act, 1881, which in section 55 provided for theconfirmation by a Colonial Governor of sentences imposed by such Courts,and in section 122 provided for the issue of Warrants by a ColonialGovernor for convening Courts Martial. Indeed the law of Ceylon con-tinued to be the same even after Independence, until the Army Act ofthe United Kingdom ceased to be in force with the enactment of ourArmy Act (Cap. 357). The constitution, powers and functions of CourtsMartial under the present law are not substantially different from thoseof the Courts Martial constituted in Ceylon under British rule.
The Supreme Court of the United States held in the year 1858 [Dynesv. Hoover1) that Congress had the power to provide for the trial andpunishment of military and naval officers “ in the manner then and nowpractised by civilised nations ”, and further that that power was entirelyindependent of the judicial power of the United States. Under the Con-stitution of the United States, which is a Federal Constitution, there isexpress provision for Congress to make laws for the Government ofmilitary and naval forces. Such express provision was not necessary inthe Unitary Constitution of Ceylon under which there is only one Legis-lature. The power to make laws for peace, order and good government,which has been described as “ the plenitude of legislative power ”, mustinclude the power to make laws for the government of the armed forces.
The reasoning in the American case was followed by the High Court ofAustralia in R. v. Beven ex p. Elias and Gordon 2, which decided that thepower to make laws for the defence of the Commonwealth and thecontrol of the Armed Forces is independent of the judicial power of theCommonwealth.
1 V. S. Reports IS, Lawyers Edition, p. 83S.
a 66 Commonwealth L. R. 452.
H. N. G. FERNANDO, S.P.J.—Ounaseeta v. Udugama
In the light of the requirements of the Constitution of Australia relatingto the exercise of the judicial power of the Commonwealth, the effectof the decision was that Courts Martial were not affected by thoserequirements.
The conclusion, in the case of Liyanage and Others ', that “ there existsa separate power in the judicature which under the Constitution as itstands cannot be usurped or infringed by the executive or the legis-lature ”, must be understood with reference to the reasons for thatconclusion. The reasoning is in my opinion apparent from earlierobservations in the judgment:—
“no express mention is made (in the Constitution) of vesting
in the judicature the judicial power which it already had and waswielding in its daily process under the Courts Ordinance. ”
“ (Certain) provisions are wholly appropriate in a Constitution whichintends that judicial power shall be vested only in the judicature.”
“ The Constitution’s silence as to the vesting of judicial power isconsistent with its remaining, where it had lain for more than acentury, in the hands of the judicature.”
These observations lay emphasis on the continuance of the • exclusiveexercise by the judicature of the judicial power formerly committed to it.The opinions, expressed in the American and Australian Courts, that thetraditional powers of Courts Martial are independent of the “ JudicialPower of the State ” referred to in their Constitutions, can properly befollowed in Ceylon with the adaptation that Courts Martial in Ceylonwere traditionally distinct from the judicature of Ceylon. Our Con-stitution does not contemplate the’ transfer to the judicature of power,howbeit judicial, which it did not formerly exercise, or which it exercisedonly concurrently with Courts Martial. The principle, that the power ofthe judicature of Ceylon must remain in the same hands in which it hadlain before, is therefore not infringed by the continued exercise by CourtsMartial of their exclusive or concurrent powers.
I would hold that the exercise, by a Court Martial duly convened underthe Army Act (Cap. 357), of the powers of trial and punishment conferredby that Act, is not in conflict with the Constitution for two reasons.Firstly, that the Constitution did not expressly or by implication rendersuch exercise invalid or limit the right of the Legislature to re-enact thetraditional provisions of law concerning the discipline, trial and punish-ment of members of the Armed Forces. Secondly, that the exercise ofsuch powers by Courts Martial does not constitute usurpation or infringe-ment of the powers of the judicature as contemplated in the Constitution.
For these reasons, this application is dismissed.
Sri Skanda Rajah, J.—I agree.
G-P. A. Silva, J.—I agree.
1 [1965) 68 N. L. R. 265.
A. G. GUNASEELA, Petitioner, and A.R. UDUGAMA (Major- General and Army Commande