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’This is a case in which a rule nisi has been granted for a writ of habeas corpus. The subject of the writ, Mark Antony Lyster Bracegirdle, is an English-born British subject. We have heard this case with most anxious care, and I approach the question of our decision with equally anxious consideration as must always be done by His Majesty’s Judges where the liberty of the subject is concerned. Mr. Bracegirdle asserts that the Police, through the Governor, have, seriously restrained his liberty. On the other hand it is claimed on behalf of the Governor that the restraint of Mr. Bracegirdle’s liberty has taken place legally and by reason of an absolute power vested in the Governor. Our duty as Judges in such matters is one which must be discharged with the greatest care’.
Chief Justice Sydney Abrahams cited the following quotation from the English case, Rex. v. Superintendent of Chiswick Police Station, ex parte Sacksteder, in which Scrutton L.J. had said.
| Throughout the Empire the system of Government is distinguished by the predominance of the rule of law. The most obvious side of this conception is afforded by the principles that no man can be made to suffer in person or property save through the action of the ordinary Courts after a public trial by established legal rules, and that -there is a definite body of well known legal principles, excluding arbitrary executive action |
‘I approach the consideration of this case with the anxious care which His Majesty’s Judges have always given, and I hope will always give, to questions where it is alleged that the liberty of the subject according to the law of England has been interfered with . . . . This jurisdiction of His Majesty’s Judges was of old the only refuge of the subject against the unlawful acts of the Sovereign. It is now frequently the only refuge of the subject against the unlawful acts of the Executive, the higher officials, or more frequently the subordinate officials. I hope it will always remain the duty of His Majesty’s Judges to protect those people.’
Deriving his authority from the above dictum of Scrutton L.J in Rex. v. Superintendent of Chiswick Police Station, ex parte Sacksteder. Chief Justice Sir Sydney Abrahams remarked:
‘I conceive that it is no less the duty of His Majesty’s Judges in this Island to afford the same protection, but I think it is not out of place to bear in mind that we must proceed with the utmost impartiality and caution lest we undulyfetter the legitimate action of the Executive’.
Chief Justice Sir Sydney Abrahams observed that the Order in Council of 1896 had not been brought into operation until a proclamation of 05th August 1914 had declared that it had come into operation and that in the same Government Gazette in which this proclamation had been published, there had been another proclamation declaring a state of war between Great Britain and the Germany. Said Sir Sydney Abrahams:
’On March 21, 1916, an Order in Council was passed amending the Order in Council of 1896, by substituting for Article III., 1, that is to say, the Article declaring all persons in the Island subject to military law, an extensive provision to enable the Governor to make regulations for the public safety and the defence of the Colony, and providing for many matters in connection with these purposes, but it is not necessary to enumerate all these. The preamble to this Order in Council reads as follows : —
“Whereas by an Order in Council dated the 26th day of October, 1896, (hereinafter referred to as the principal Order) Her Majesty Queen Victoria was pleased to make provision for the security of the Colonies mentioned in the schedule to that Order in times of emergency.”
It was further declared that, the amending Order was to be construed and read as one with the Order in Council of 1896’.
Chief Justice Sir Sydney Abraham in his judgement quoted the following paragraph in Chapter III of the celebrated text book Maxwell on “The Interpretation of Statutes” (4th edP132.) :
‘It is in the last degree improbable that the Legislature would overthrow fundamental principles, infringe rights, or depart from the general system of law, without expressing “its intention w i t h irresistible clearness; and to give any such effect to general words, simply because they have that meaning in their widest, or usual, or natural sense, would be to give them a meaning in which they were not really used. General words and phrases, therefore, however wide and comprehensive in their literal sense, must be construed as strictly limited to the actual objects of the Act, and as not altering the law beyond.’
Responding to the submission of Arthur Wijewardene, Solicitor General on his strict interpretation of the statute, Chief Justice Sir Sydney Abrahams remarked:
‘He (Wijewardene) was entirely unable to justify this (his)submission in view if the rule of construction that the whole of an enactment must be considered in the construction of any of its parts’
Chief Justice Sir Sydney Abrahams in his judgement emphasised; ’There can be no doubt that in British territory there is the fundamental principle of l aw enshrined in Magna Carta that no person can be deprived of his liberty except by judicial process’.
His Lordship remarked that the following passage from Professor Berriedale Keith’s book ‘’The Government of the British Empire’’ was illuminating and instructive:
‘Throughout the Empire the system of Government is distinguished by the predominance of the rule of law. The most obvious side of this conception is afforded by the principles that no man can be made to suffer in person or property save through the action of the ordinary Courts after a public trial by established legal rules, and that -there is a definite body of well known legal principles, excluding arbitrary executive action. The value of the principles was made obvious enough during the war when vast powers were necessarily conferred on the executive by statute, under which rights of individual liberty were severely curtailed both in the United Kingdom and in t h e oversea territories.” Persons both British and alien were deprived legally but more or less arbitrarily of liberty on grounds of suspicion of enemy connections or inclinations, and the movements of aliens w e r e severely restricted and supervised ; the courts of the Empire recognized the validity of such powers under war conditions, but it is clear that a complete change would be effected in the security of personal rights if executive officers in time of peace were permitted the discretion they exercised during the war, and which in foreign countries they often exercise even in time of peace.’
Reverting to the writ application filled on behalf of Bracegirdle Chief Justice Sir Sydney Abrahams held that:
a) The power given to the Governor under Article in., 3, of the Order in Council of October, 1896, to order any person to quit the Colony and, on refusal on the part of such person to obey the order, to cause him to be arrested could be exercised only in a state of emergency contemplated by the preamble to the amending Order in Council of March, 1916.
b) The nature of the emergency would be a state of war or grave civil disturbance, real or imminent.
c) The Supreme Court is entitled to inquire whether the conditions necessary for the exercise of the power in the Order in Council had been fulfilled’.
Chief Justice Sir Sydney Abrahams concluded:
‘In my opinion then the Governor’s order purporting to be made under Article III, 3, of the Order in Council of 1896, was made without authority. The arrest and detention are illegal and Mr. Bracegirdle must be released.’
Immediately after the judgement Bracegirdle was released, and the contemporary news papers hailed Chief Justice Sir Sydney Abraham’s judgement as a landmark decision upholding the liberty of the individual in accordance with the principles of Magna Carta. It indeed was a vindication of the fairness of what is known as ‘ British Justice “. Governor Stubbs in a short confidential telegram dated 18th May, 1937, to the Secretary of State for the Colonies said:
‘Supreme Court has ruled that Order was ultra vires on the grounds that powers under Order in Council can only be used in times of emergency’.
The British Governor Sir Reginald Edward Stubbs feared that Bracegirdle would sue him and other officials involved, in a civil action for damages for the illegal arrest and detention. He was advised by the Legal Secretary of Ceylon, a fellow Englishman that the latter would strongly agree with the judgement of the Supreme Court. Legal Secretary advised that it would be futile to appeal the judgment of the Supreme Court to the Judicial Committee of the Privy Council, as it would be unlikely that the Judicial Committee of the Privy Council would set aside the judgement of the Supreme Court of Ceylon because it was a case where the issue of liberty of an individual was involved.Governor Stubbs requested the Secretary of State of Colonies to promulgate a retrospective Order in Council granting him and the other officials involved in the Bracegirdle’s case, an absolute immunity and indemnity in the event Bracegirdle would sue them for damages in a civil action. He even submitted a draft Order in Council for absolute indemnity and immunity. In a confidential telegram dated 20thMay 1937 to Secretary of State for the Colonies, said Governor Stubbs:
‘Legal Secretary advises that an appeal to the Privy Council would be unsuccessful. I understand that Bracegirdle intends to institute civil proceedings in the courts against me personally claiming damages. As my action was taken, bona fide, in the belief that Order in Council could be applied, I submit that the case is one for indemnity. The tate Council would most unlikely to pass an Indemnity Ordinance and I would ask that Order in Council in terms of draft set out below should be enacted as soon as possible. Relevant provisions of suggested Order in Council follows Section 3 of Nigerian Ordinance No: 15 of 1931.’
Again in another confidential telegram dated 24th May, 1937 addressed to the Secretary of State for the Colonies, Governor Stubbs gave a detailed report of the Supreme Court judgement as follows:
‘Supreme Court constituted by Chief Justice and two puisne justices referred to Maxwell’s Fouth Edition page 122, lines 17 to 19 , and ‘ Government of British Empire ‘ by Keith, Chapter 7, first paragraph, and held that all provisions of Order in Council, 1896, and circumstances under which it was proclaimed in Ceylon in 1914 should be examined in order to confer absolute power on Governor as contended by Attorney General, that Court could look at preamble of amending Order of 1916 which specified the reasons for Order of 1896 to determine the scope of the latter Order, and that powers under Article III, Clause 3, could only be used in times of emergency, nature of emergency being state of emergency being state of war or grave civil disturbances. Court said that, as affidavit filed by Secretary to Governor made order complained of, as circumstances had arisen rendering it necessary in the public interest to make them, averment in petitioner’ s affidavit that no such emergency as was contemplated by Order in Council had arisen, was uncontradicted. Order, therefore, ultra vires. Legal Secretary agrees with Supreme Court strongly, and is of opinion that Judicial Committee ( of Privy Council) mindful as always of liberty of subjects will refuse to grant leave to appeal. Dispatch with full judgement of Supreme Court follows by air mail ‘
Secretary of State for the Colonies in Britain refused to accede to Governor Stubbs request for the enactment of an Order in Council granting him and the officials involved in the Bracegirdle case absolute indemnity and immunity bypassing the local legislature- State Council.British Cabinet at Whitehall advised Governor Stubbs that he might explore the possibility of getting such Law enacted by the State Council. In other words, the British Cabinet left the Governor Stubbs and the officials involved to face the consequences of their actions in the event Bracegirdle would sue them in civil proceedings for damages,knowing very well that a hostile local legislature would never come to rescue them by enacting such a law of absolute indemnity and immunity. In other words, the British Cabinet left Governor Stubbs and the officials involved in Bracegirdle’ s case at the mercy of Bracegirdle and at the mercy of a hostile local legislature. This shows the British sense of justice and their strict adherence to the rule of law and to the principle of judicial independence. Bracegirdle did not sue Governor Stubbs and the officials involved in his case for damages in civil proceedings. Nor did the State Council enact a law granting absolute immunity to Governor Stubbs and the officials involved.
In conclusion, it is interesting to note the final observations and conclusions of the British Government in Whitehall as set out in the following Cabinet Memorandum dated 10th, June 1937 submitted by William Ormsby-Gore Baron Harlech, Secretary of State for the Colonies. It read as follows:
‘Mr. Bracegirdle born in Australia, where he was, under the name of Price, an active member of the Young communist League of Australia, came to Ceylon in 1936 as a tea planting pupil. His employer found him unsuitable and provided him with a passage back to Australia, of which however Mr. Bracegirdle did not avail himself, preferring to remain in the Island in association with the local communist party, which is small in numbers but includes some young men of wealth. His subsequent activities took the form of violent speeches, abusing Europeans, and inciting labourers to rise against the planters, and the Governor, considering that he was a public danger, ordered him to leave Ceylon. He declined to do so and was eventually arrested so that the deportation order might be carried out. ‘
‘The Governor’s order was made under Clause III (3) of an Order in Council passed in 1896 and applicable to a group of colonies, of which Ceylon was one. The Order provides that it shall have effect in all or any of the Colonies specified in which it shall be proclaimed and shall continue in operation until the Governor shall by proclamation declare that it has ceased to be in operation. The Order confers upon the Governor a number of drastic powers which may be linked in small measure to the powers conferred by the defence of the Realm Act in this country. The Order was intended for use in case of war, or any grave local emergency, and it was in fact brought into force in Ceylon upon the outbreak of the last war. So far as Ceylon is concerned, no proclamation has ever been made declaring that the Order in Council has ceased to be in operation there.’
‘The question of retention in force of the Order was discussed with the Governor of Ceylon in 1924 Copies of the relevant correspondence are appended.’
‘The Order was allowed to remain in force in Ceylon, though it had been withdrawn in other colonies, advisedly and chiefly for the purpose of excluding and deporting undesirable persons, it being considered that such powers were necessary in view of the Island’s proximity to India (The Government of India supported fully the retention of these powers in Ceylon). It must be mentioned also that in 1928, when a new ‘’defence’’ Order in Council was enacted to take the place of the 1896 Order, the then Secretary of State addressed the Governor of Ceylon in the following terms-
‘The Order in Council of the 17th May 1928 of which copies are now supplied, does not come into force in the Colony until proclaimed and until it is brought into operation by proclamation, it does not operate to repeal the earlier order, which therefore remains in force. So long as that position remains undisturbed there would be no objection to the Governor, if occasion should arise, taking action in a minor matter under the powers conferred by the 1896 Order.’
‘In 1931 Ceylon was granted a Constitution which amounted to a form of self Government with certain reservations. The Constitution did not have the effect of repealing the Order in Council of 1896, and no steps were taken even then to withdraw it.’
‘A writ of Habeas Corpus having been applied for on behalf of Mr. Bracegirdle, the Supreme Court of Ceylon ruled that the order of deportation was ultra vires on the broad grounds that the powers given under the Order in Council in question could only be used in a state of emergency and that no such state had been declared to exist. The Governor, before making the order of deportation, had consulted his Attorney General (a Ceylonese) who stated that in his opinion, it might properly be issued; but the Legal Secretary (a British officer) now advises that he agrees with the Judgement of the Supreme Court and considered that an appeal against it to the Privy Council would be unsuccessful. It is understood that Mr. Bracegirdle is now considering instituting civil proceedings in the Courts against the Governor personally claiming damages presumably for false imprisonment; and the Governor asks that a special new Order in Council indemnifying him and the other officers concerned in the case should be proceeded with immediately.’
‘The attitude in the matter of the Ceylon state council (which is the elected legislative assembly of the Colony under the Constitution of 1931) is indicated by the following resolution which was carried by 34 votes to 7:-
“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”.
‘It may be added that the views of Sir Baron Jayatilaka the Minister for Home Affairs in the Ceylon State Council who is at present in this country have been obtained. He states that while agreeing that Mr. Bracegirdle is undesirable, he regards it as very regrettable that the Governor should have had recourse to the 1896 Order in Council and considers that the Attorney General’s advice was wrong. He is however in favor of the issue of an indemnity Order in Council, since he thinks that it is most undesirable that the Governor should be compelled to defend himself in any action brought in the courts of Ceylon by
Mr. Bracegirdle.’
‘To sum up; it may well be held that the Governor’s action in attempting to use the powers given by the 1896 order in council was politically unwise. The attitude taken up by Ceylon Ministers and by the State Council was only what might have been expected, particularly as certain individuals among them had been under the powers conferred by the order arrested and detained on suspicion of complicity in the riots which occurred in Ceylon in 1915. (They were released without charges being against them; and their treatment has coloured their attitude towards the British Government ever since. On the other hand, the Communist party in Ceylon is small and unimportant, and Ministers have no sympathy with it. It is arguable that as the Governor was legally advised that he could use the order in the Bracegirdle case, he was under no obligation to consult Ministers before so acting.’
‘But whatever the propriety or otherwise of the Governor’s action, it was taken in good faith and in reliance not only on the advice of the Attorney General but also on the views expressed in 1926 by a previous Secretary of state; and in these circumstances it is very undesirable that the Governor should be exposed to an action in the courts at the instance of a man whose proceedings in Ceylon had justified the use against him of any legal powers which the Governor possessed.’
‘On the other hand, to pass an Order in Council over the head of the Ceylon legislature for the purpose of depriving an individual of such legal rights as he may have in relation to a wrong which he has suffered, would be a very strong step; and it may well be held that the proper constitutional course would be for the Governor to invite the local legislature to pass a measure providing such indemnity as may be required. I ought to add however that the Governor doubts the willingness of the State Council to pass such a measure under the circumstances.’
Having regard to the decision of the Supreme Court, I propose to instruct the Governor formally to declare that the Order in Council of 1896 has ceased to be in operation in Ceylon. In the event of any emergency arising, recourse will be had to the Order in Council of 1928, I propose also to consider the possibility of passing fresh legislation in the Ceylon State Council to provide for the deportation of British subjects in
proper circumstances.’
Thus ended the Bracegirdle affair of Ceylon. Governor Stubbs retired from the Colonial Service shortly afterwards. He passed away on 07th December, 1947 . Chief Justice Sir Sydney Abrahams completed his full term as the Chief Justice of Ceylon. He and his brother judges did not have to face “any repercussion” for their bold and fiercely independent judgment. British colonial government here in Ceylon, British officials here and in the Colonial Office in London and the British Cabinet at Whitehall strongly agreed with judgement of the Supreme Court and respected it. After spending some time in Ceylon, Bracegirdle went to England. In 1939, he married Mary Elizabeth Vinden and settled down in England and qualified as an engineer and became an active member of Labour Party. He later became a lecturer in engineering at North London Polytechnic. Bracegirdle passed away on 22nd June, 1999, leaving three daughters, a son and five grandchildren.