Judgement that set a precedent
Apropos the learned article titled ‘Landmark Judgements’ that appeared in your journal on January 9, let me add these few comments. The author of that script had struck the right note in that learned essay: “The citizenry welcomes the independence of the judiciary and once again has complete faith in the judicial system.”
The Supreme Court had, in this landmark judgement, reaffirmed what has always been a cardinal principle of English constitutional law that not even the Head of a State in a democracy could act ultra vires the constitution. In the annals of Sri Lankan law records, in the Bracegirdle Affair, an analogous political fiasco where the Supreme Court had occasion to quash an illegal order of the governor the highest head of the then colonial government. Bracegirdle was an Australian citizen who migrated to Ceylon (as Sri Lanka was then called) and got employment as a creeper in a hill country tea estate at Madulkelle.
Having seen the abject repulsive condition under which the plantation workers lived and work for the European planters, he soon threw his lot with the Marxist intelligentsia of that era led by Dr. NM Perera, Dr. Colvin R de Silva, Philip Gunawardena and other leaders of the Lanka Samasmajist party and made a strident outcry against the exploitation and treatment of labourers by white planters. The Sammamajist movement at that time stood as a thorn inside the colonial regime as LSSP’s main thrust was anti-imperialism and the rights of the downtrodden working community. Their ideas were anathema to the colonial powers. They thought Bracegirdle was giving additional muscle to the Sammasmajists.
The British Governor RE Stubbs issued deportation on Bracegirdle. The LSSP leaders decided to test the validity of the order in courts. HV Perera QC, the leading legal luminary of the Bar, appeared pro deo for Bracegirdle. The Supreme Court in a three Bench decision headed by CJ Abrahams held governor’s order illegal. This cause célèbre marks a milestone in the noble tradition of judicial independence in Sri Lanka.
B. H. S. Jayasekera JPUM
Attorney-at-Law
Court Complex Monaragala
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