25 November 2022 12:29 am Views - 1222
Landmark judgment that upheld the Liberty of individual and that affirmed the Fairness of ‘ British Justice’
Bracegirdle beside Colvin R. de Silva and other Trotskyite leaders 1937
Sir Sydney Abrahams, Justice Soertsz and Justice Martensz delivered the three separate respective judgements upholding the arguments of H.V. Perera KC, and held that Governor’s Order dated 22nd April 1937 requiring Bracegirdle to quit the Island and his subsequent Order for the arrest and deportation of Bracegirdle were illegal, and ordered the release of Bracegirdle
Mark Anthony Lyster Bracegirdle (Also known as Price) was born in Chelsea, England in 1912. His parents were Ina Marjorie Lyster and James Seymour Bracegirdle. His
In 1936, he sailed on the SS Bendigo for Ceylon (as Sri Lanka was then known). In Ceylon, he joined a British plantation company as a trainee planter (‘creeper’). He was posted to Relugas Estate in Madulkelle near Matale. Bracegirdle, a young man with Marxist convictions soon became a sympathiser of the Indian Tamil plantation labourers (‘then known as coolies’), who lived under very poor living and insanitary conditions in ‘line rooms’ earning very low salaries.
Bracegirdle often took the side of the Indian Tamil labourers in labour disputes. This displeased his fellow European planters and his superiors who eventually dismissed him and provided him with a return passage to Australia. It was a time, when the Marxist political party - Lanka Sama Samaja Party (LSSP), founded by a group of young men from wealthy Ceylonese families, educated in Britain, was active among the plantation workers through their trade unions.
After his dismissal from his job as a trainee planter, Bracegirdle joined the Lanka Sama Samaja Party (LSSP) and became very active in the party’s activities among the plantation workers. The leaders of the LSSP considered a Whiteman’s entry into their political party as a priceless gift.
Introducing Bracegirdle at a meeting held in Colombo on 28 November 1936, Dr Colvin R. de Silva, President of the LSSP said:
‘This is the first time a white comrade has ever attended a party meeting held at a street corner.’ On 3rd April 1937, at a meeting held at Nawalapitiya, at which Mrs Kamaladevi Chattopadhyaya of the Indian Congress Socialist Party addressed a gathering of about two thousand Indian Tamil eastate workers, Dr N.M. Perera, the LSSP stalwart again introduced Bracegirdle to the audience highlighting his white ethnicity:
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Bracegirdle |
“Comrades, I have an announcement to make. You know we have a white comrade. He has generously consented to address you. I call upon Comrade Bracegirdle to address you.’ It is said that when Bracegirdle rose to speak ‘amid tumultuous applause’ the Indian Tamil workers greeted him shouting, ‘Saamy, Saamy’ ( ‘Lord, Lord’ in Tamil). Bracegirdle also supported the activities of the All Ceylon Estate Labour Federation founded by Natesha Iyer, a Ceylonese journalist, trade union activist and a politician of Indian Tamil origin, who represented the constituency of Hatton in the State Council ( as Ceylon’ s legislature was then known after the promulgation of the Donoughmore Constitution of 1931). As Bracegirdle wanted to remain in Ceylon, Natesha Iyer employed him for the purpose of organizing an Estate Labour Federation in Nawalapitiya and Hatton at a monthly stipend of Rs. 100. 00.
It was believed at that time that some influential British planters saw Bracegirdle’s (an ex- fellow white trainee planter’ s) active participation in Marxist political and trade union activities as a threat to their interests, and put pressure on the Inspector General of Police, Chief Secretary (the top most civil servant in the colony of Ceylon) and Governor to deport him from Ceylon.
British Governor of Ceylon, Sir Reginald Edward Stubbs, acting on the advice of the Attorney General of Ceylon – John William Ronald Ilangakoon KC ( A Ceylonese and a Sinhalese) , issued his order dated 20th April 1937 requiring Bracegirdle to leave Ceylon within four days on or before the 24th April 1937.
Bracegirdle refused to obey this order and went into hiding at a place provided to him by his Marxist comrades. As his order was disobeyed, the Governor issued a subsequent order for the arrest and deportation of Bracegirdle.
Governor’s orders claimed that he was acting under the powers vested in him by Article III, (3) of the Order in Council of October of 1896. It may be noted that the colonies in the British Empire were governed by three types of legislation- laws enacted by the British Monarch (King or Queen) in Council known as ‘Orders in Council’, laws enacted by the British Parliament and the laws enacted by the respective legislatures of the colonies.
The Order in Council of October 1896 under which the Governor issued his order dated 20th April 1937 requiring Bracegirdle to quit the Island and his subsequent order for his arrest and deportation, was promulgated in respect of eight strategic colonies, namely Malta, St. Lucia, Sierra Leone, Hong Kong, Mauritius, Straits Settlements, St Helena and Ceylon, and was later amended by an Order in Council of 1916. Article III (3) of the Order in Council of 1896 read:
‘The Governor may order any person to quit the Colony, or any part of or place in the Colony, to be specified in such Order and if any person shall refuse to obey any such order the Governor may cause h im to be arrested and removed from the Colony, or from such part thereof, or place therein, and for that purpose to be placed on board of any ship or boat.’
Whilst Bracegirdle was hiding, Siripala Samarakkody, elected Member of State Council for the constituency of Narammala moved the following resolution in the State Council on 04th May, 1937:
‘His Excellency the Governor, by ordering the deportation of Mr. Bracegirdle without the advice of the Acting Minister of Home Affairs or in the alternative, without declaring a state of emergency and taking control of the affairs of the Police Department and other Department and other Departments concerned, under section 49, sub section (1), of the Ceylon (state Council) Order in Council, dated the 20th March, 1931, has violated the constitution and the express conditions of his appointment; wherefore this House requests the Board of Ministers to advise his Excellency to rescind the Order dated the 20th April 1937 and further to take steps for the repeal of the Orders in Council under which His Excellency has acted.’ Moving this resolution Samarakkody said: ‘ My submission was that His Excellency the Governor had acted unconstitutionally and in violation of the expressed terms of the Constitution that has been granted to us by the Donoughmore Commissioners, and as such, such action should be condemned by his House, should not be tolerated in this country, and every protest must be made in order to safeguard the rights and liberties of the subjects. There has been a gross invasion and a gross violation of private rights, the liberty of the subject. If we allow this action to go unchallenged and if we do not exert all power that is within us to see that these orders are rescinded it will be very unsafe for us. It is very clear that there is no vestige of responsible government in this country.’
Samarakkody argued that the Governor might invoke the powers conformed on him by the Order in Council of 1896 amended by the Order in Council of 1916 only in a situation of emergency and civil war or disturbance after having proclaimed or declared ‘’a State of Emergency’’ but not otherwise. George E. de Silva ( Member of state counsel for the constituency of Kandy ) who seconded the motion stated, in the course of his speech at the debate in the State Council:
‘Sir, I feel that every person who loves his liberty in this country would be opposed to the measure which has been introduced under the advice of the Hon. The Chief Secretary who is supposed to look after the public interest of the country. ‘
In the course of the debate the conduct of the Governor, Chief Secretary and the Inspector General of Police came under heavy criticism of the elected Ceylonese members of the State Council. The resolution was passed with 34 members voting for and 7 members voting against it. Out of the 7 members who voted against the resolution were four nominated official and unofficial European members and two elected Ceylonese members- G.G. Ponnabalam and T.B. Jayah. Mr Herbert Freeman, an Englishman who was the elected Member of the State Council for the constituency of Anuradarapura voted in favor of the resolution.
On 5th May 1937- the day on which the resolution against the Governor’ s Order for the deportation of Bracegirdle was passed by the State Council, a massive public rally was held at the Galle Face Green and both Marxist and non-Marxist Ceylonese politicians addressed the rally.
Among them were Dr. Colvin R de Silva, S.W.R.D. Bandaranaike, Dudley Senanayaka and J.R Jayawaradena. Amidst a tumultuous applause, Bracegirdle who had been in the hiding, appeared on the stage and addressed the gathering. Police did not arrest him during the rally but two days later Bracegirdle was arrested in the house of Mr. Vernon Gunasekara, an LSSP activist at his residence in Colombo by the Criminal Investigation Department. Mr. Vernon Gunasekera filed an application on behalf of Bracegirdle for a mandate in the nature of Writ of Habeas Corpus in the Supreme Court.
Bracegirdle’ s arrest was given wide publicity in the newspapers of Ceylon and Britain, and the questions were raised in the British Parliament - House of Commons.
The Secretary of State for the Colonies (as the British Cabinet Minister in charge of colonial affairs were then known) in Britain in a confidential telegram dated 11th May, 1937 sent to Sir Reginald Edward Stubbs, the Governor of Ceylon, called for a report as follows:
‘Case of Bracegirdle has been the subject of press, telegrams, and Jayatilaka proposes to call here on morning of 14th to discuss. Please telegraph facts of case as soon as possible and any observations useful for the purpose of interview with Jayathilake’.
It may be noted that the person named ‘ Jayatilaka’ referred to in this confidential telegram dated 11th May, 1937 was Sir D.B Jayatilaka who was the Minister of Home Affairs at that time. Sir Reginald Edward Stubbs sent a confidential reply in a telegram dated 13th May 1937 as follows:
‘Yourtelegram of the 11th May,1937 No: 112. Person named is English born in Australia who under the name of Price was active member of Young Communist League of Australia. He came here as a tea-planting pupil but was found unsuitable and given passage to Australia but preferred to stay here, sponging on small local communist party, which is run by young men with more money than brains. He went about the country making violent speeches, abusing Europeans and inciting labourers to rise against the planters. As the ignorance of the coolies tends still to attach importance to speeches of white men, the police and I considered him a public danger, and I ordered him to leave Ceylon. He declined to do so and remained hiding under the protection of the Communists. He re-emerged to make a violent speech and, after some unavoidable delay, was arrested in order that order of deportation might be carried out. Communists have applied for Habeas Corpus on the grounds that my order is ultra vires and the case is now being considered by full Court.Tell Jayatilaae that I am receiving from all sides warnings of growth of Communist opinions amongst the labouring classes and peasantry, and that I consider that we can no longer afford to regard with amused contempt an antics of the local Communists but must take drastic steps in order to avoid danger of disturbances.’’
Commenting on the speeches made in the course of the debate in the State Council on the resolution moved by Samarakkody, Governor Stubbs, in a confidential telegram dated 14th May 1937’, remarked:
Speeches were mostly directed to attack on existence of Order in Council and use of it when no emergency existed. Senanyake took a prominent part because of his recollection of 1915, when he was imprisoned under that Order, and also because it gave him an opportunity of attacking officers of State and Governor’s special powers. Some other member use opportunity for attack on Europeans especially planting community, but most speakers merely talked at large about liberty of the subject’.
In the meantime, the application for the writ of habeas corpus filed on behalf of Bracegirdle was taken up before a Bench of the Supreme Court comprising Chief Justice Sir Sydney Abrahams, Justice Soertsz and Justice Martensz. H.V.Perera KC, an eminent Advocate who was the most brilliant civil lawyer of the 20th century Sri Lanka appeared with Francis de Zoysa KC, M. T. de S. Amerasekere, B. H. Aluvihare, J. R. Jayawardene and N. M. de Silva appeared for petitioner. John William Ronald Illangakoon KC -Attorney General of Ceylon with Arthur Wijewardene KC – Solicitor General of Ceylon and M. S. M. Pulle – Crown Counsel appeared for the respondents- Secretary to the Governor, Chief Secretary, Inspector General of Police and the Deputy Inspector General of Police.
H. V. Perera KC had earned a First Class Honours degree in Mathematics and had studied law in England, having successfully completed a Master’ s degree in Mathematics at the University of Oxford on a scholarship. There is no doubt that his brilliance as a mathematician had equipped him well for his brilliant career as an Advocate with excellent analytical and logical skills coupled with his oratorical skills. At the hearing of the application for a Writ of Habeas Corpus in the Supreme Court, Ilangakoon KC- Attorney General of Ceylon contended:
‘The main contention raised by the petitioner, against the validity of this warrant is contained in paragraph 7 of the petition. ‘ With regard to the averments in that paragraph my submission would be that the language of clause 3, is perfectly clear, unambiguous and plain ; on a plain reading of the words of that clause, His Excellency had full authority to make the two orders in question. A subsequent Order in Council dated March 21, 1916, amended the 1896 Order in Council in certain respects. The only reference to an emergency was in the recital of the Order in Council of 1916.’
Solicitor General, Arthur Wijewardene KC submitted:
‘ Where a law is expressed in clear and unambiguous language, there is no rule of construction which enables a Court to refer to the preamble or the history of the legislation or any surrounding circumstances to ascertain the intention of the legislature.’
H.V. Perera KC, senior counsel for the petitioner in the course of his submissions argued that the principles of Magna Carta of 1215 (that the King and his Government was not above the law and that the liberty of a person should not be restricted without the due judicial process) applied not only to the people who lived in the British Isles but also to the other people or subjects who lived in the colonies and tertiaries of the British Emperor as the latter were also the subjects of the British Monarch. Perera argued:
‘Your Lordships will see that this is a matter vitally affecting the liberty of the subject and the rights of personal freedom and liberty. It has been said by Lord Eldon that with respect to the liberty of the subject, the Courts are there to struggle to secure it, while in this case it i s sought to destroy it. (Cites In re Application of A. R. Shaw for a writ in the nature of habeas corpus1.)……... It is submitted that the principles laid down in the Magna Carta apply to all British subjects ; that the position of a British subject is the same anywhere in the Empire. So far as the general principles are concerned, all subjects owed allegiance to the King who had promised protection, certainly, in respect of the fundamental rights and liberties of the subject. It is a matter in which it can be argued that there is a limitation also on the power of the King to legislate….. for the King to take away the fundamental right of the subject would be contrary to principle’
Inviting the attention of Court to the preamble to the Order in Council of 1916 which amended the Order of 1896, Perera argued that Article III (3) which empowered the Governor to deport a person could be invoked or excised by the Governor only at a time of war and civil disturbances and unrest in a situation of emergency as there was no such conditions of war, civil disobedience or unrest or emergency in 1937 when the governor issue his order dated 22nd April 1937 requiring Bracegirdle to quit the island within four days therefrom, the Governor had acted ultra vires and as such the governors order dated 22nd April 1937 and the subsequent order dated 30th April, 1937 requiring the Police to arrest Bracegirdle for deportation were illegal and null and void. Perera contended:
‘One has, I submit, to look at the whole of it—not in the way the learned Attorney-General interprets it by looking at one particular clause- which is not the way of interpreting any law—if the Governor allowed t h e Order in Council to remain operative in Ceylon, it must be remembered that it was introduced at a time of emergency, to meet a situation that might be created from such an. emergency and the powers have to be invoked in accordance w i t h the circumstances which it was really intended to meet. Whether the powers are unlimited or not, my contention is that the power was conferred for one purpose and I say that powers conferred for one purpose cannot be used for another purpose—that is the fundamental principle in law governing the conferment of powers’.
Chief Justice Sir Sydney Abrahams KC was an Oxford educated British gentlemen of Jewish origin, and was an Olympic athlete who represented Britain at Olympic Games. Sir Sydney Abrahams, Justice Soertsz and Justice Martensz delivered the three separate respective judgements upholding the arguments of H.V. Perera KC, and held that Governor’s Order dated 22nd April 1937 requiring Bracegirdle to quit the Island and his subsequent Order dated 30th April 1937 for the arrest and deportation of Bracegirdle were illegal, and ordered the release of Bracegirdle.
To be continued