6 7 



prevents the continuance of the exercise of the powers, compen- 

 diously described as existing under " Martial Law," during 

 such a period of unsettlement as I have just referred to. On the 

 contrary, the decision of the Privy Council in the case of Elphin- 

 stone v. Bedreechund (i) itself furnished an example of the con- 

 tinuance of Martial Law powers in a district which at the time 

 was merely disturbed, and in which the ordinary Civil Courts of 

 Law were for many purposes being kept open. The more recent 

 case of Ex parte Marais (2) furnished strong corroboration of 

 the soundness of that principle. The position of the municipal 

 Courts in regard to Courts exercising Martial Law powers is 

 clear. There is old and ample authority for the proposition 

 that the superior Courts of law have full power to review by the 

 issue of writs of Habeas Corpus the legality of arrests and 

 detentions under the ordinary naval and military law, see Ex 

 parte Blake (3), King v. Suddis (4), In re Allen (5), In re Douglas 

 (6), and Queen v. Cuming (7). But where Martial Law in the 

 sense with which we have to do in the present case is involved, 

 the function of municipal Courts is limited. They have the 

 right to inquire, and the duty of inquiring, into the question of 

 fact whether an " actual state of war " exists or not. But 

 when once that question has been answered in the affirmative, 

 the acts of the military authorities in the exercise of their Martial 

 Law powers are no longer justifiable by the municipal Courts. 

 The decision of the Privy Council in Ex parte Marais (2), a 

 decision pronounced by Lord Halsbury, but concurred in by 

 Lords Macnaughten, Davey, Robertson, Shand, and Lindley, 

 and Sir Henry, afterwards Lord De Villiers, is an express and 

 binding authority for that statement. It remains only to consider 

 the application of these principles to the facts. Mr. A. St. V. 

 Jayewardene, in his argument in support of the application, 

 said, at least in effect, that the proclamation of Martial Lavi 

 could not be justified solely by the existence of the war in 

 Europe. The phrase the " war in Europe " is clearly inaccu- 

 rate. The war exists far beyond the limits of Europe. The 

 whole Empire is at present at war, and its resources are being 

 drawn upon in all directions for military purposes. Ceylon, 

 therefore, as well as England, is in an " actual state of war." 

 But there is more. We have had placed before us in the argu- 

 ment of counsel, and there are some points of which we are 



