056-NLR-NLR-V-43-AMEER-NOOR-AMITH-v.-MAJOR-KUMARANAYAGAM-et-al.pdf
WIJEYEWARDENE J.—Ameer Noor Amith v. Major Kumaranayagam. 229
1942Present : Wijeyewardene J.
AMEER NOOR AMITH v. MAJOR KUMARANAYAGAM et al.
In re Application for a Writ of Prohibition against the Membersof a District Court Martial.
Court Martial—Jurisdiction to try member oj Defence Force—Member ofDefence Force called out for active service—Subject to Military Law—Defence Force Ordinance (Cap. 258), sec. 13 (3) and 19 (2).
A member of the Ceylon Defence Force called out by the Governorfor active service in conjunction with a part, of His Majesty’s RegularForces is subject to Military Law and is liable to be tried by a DistrictCourt' Martial for having committed certain offences against two girls.
The Supreme Court has no power to issue a Writ of Prohibition againsta District Court Martial.
T
HIS was an application for a Writ of Prohibition against a DistrictCourt Martial.
M. T. de S. Ameresekere, K.C., (with him H• V. Perera. K.C., BarrKumarakulasingam andrH. W. Jayawardene), for the petitioner.
M. W. H. de Silva, Solicitor-General (with him Marshall Pulle, C.C.),as amicus curiae.
Cur. adv. vult.
February 11, 1942. Wijeyewardene J.—
This is .an application for the grant of a mandate in the nature of aWrit-of Prohibition under section 42 of the Courts Ordinance.
The petitioner is a soldier of the Defence Force stationed at Trinco-malee. He was charged before a District Court Martial with havingcommitted certain offences against two girls in November, 1941. Thepetitioner objected to the Court Martial trying him, on the ground thatneither he nor the members of the Court Martial were persons subjectto Military Law and that the Army Act did not apply to them. TheCourt Martial over-ruled the objection and decided to proceed with thetrial. Thereupon, the petitioner submitted the present application tothis Court for a Writ of Prohibition to be issued to the District CourtMartial.
It is admitted that the petitioner and the officers concerned are membersof the Defence Force Corps called out for active service by His Excellencythe Governor under a Proclamation of September 1,, 1939, issued by virtue
230
Vanderpoorten v. The Settlement Officer.
of the powers vested in him by section 13 (1) of the Ordinance. It isfurther admitted that these Defence Force Corps are on duty in conjunctionwith a part of His Majesty’s Regular Forces. Now section 19 (2) of theOrdinance enacts that if any part of the Defence Force is “ on activeservice” with a part of His Majesty’s Regular Forces, “the Army Act…. shall apply to the officers and soldiers of such force in likemanner as they apply to the officers and men of the Regular Forces ”.The words “ on active service ” in that sub-section have to be inter-preted in the light of section 13 (3), which states that every officer andsoldier of a Defence Force Corps called out by the Governor undersection 13 (1) “ shall be deemed on active service ” for the purposes of theOrdinance. The words “ on active service ” in section 19 (2) of theOrdinance would therefore appear to be used in a different sense from thewords “ on active service ” in section 189 (1) of the Army Act. Thejoint effect of Sections 19 (2) and 13 (3) of the Ordinance would be tomake the petitioner and the members of the Court Martial subject toMilitary Law. The petitioner'has thus become liable to be tried on thepresent charge by the District Court Martial under the provisions ofsection 41 (5) of the Army Act (44 and 45 Viet. c. 58) which governsthe persons subject to Military Law and not on active service withinthe meaning of section 189 (1) of the Army Act.
There is another reason why the Writ asked for cannot be granted.It was held by a Bench of Three Judges in re Writ of Prohibition' againstField General Court Martial that the Supreme Court had no power to issuea Writ of Prohibition to a Court Martial. That decision is binding on me.
The annlication is refused.
Application refused.