057-NLR-NLR-V-18-BASNAYAKE-NILAME-v.-THE-ATTORNEY-GENERAL.pdf
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Present: Shaw J. and De Sampayo A.J.
BASNAYAKE NILAME ». THE ATTOBNEY-GENEBAL.
245—D. C. Kandy, 22,466.
Kandyan Contention of 1815, Article ■ S—Subsequent legislation relatingto processions and music—Actions in Municipal Courts to enforcerights under the Convention.
Article 5 of the Kandyan Convention does not invalidate theprovisions of sobseqnent legislative enactments relating to processionsand music.
fpHE facts appear from the judgment.
.Inion Bertram, K.C., Attorney-General, and son Langenberg, K.C.,Solicitor-General (with V. M. Fernando, O.O.), for defendant,appellant.
Baton, K.C. (with him E. W. Perera and D. R. Wijetoardene), forplaintiff, respondent.
Cur. adv. vult.
February 2, 1016. Shaw J.—
The plaintiff brought this action in his capacity as BasnayakeNilame of the Wallahagoda dewale against the Attorney-Generalas representing the 'Crown, claiming a declaration that he as suchBasnayake Nilame is entitled to the right and privilege of holdingand conducting a perahera procession, by which the BasnayakeNilame of the Wallahagoda temple, with the retainers and tenantsof the said temple, has the right and privilege of marching to andfrom and through all the streets of the town of Gampola, includingthat part of Ambagamuwa street with which this action is concerned,with elephants, to the accompaniment of tom-toms, drums, and :othermusical instruments. He further clumed a declaration that he wasentitled to damages Bs. 25, and further damages of Bs. 25 per yearuntil the said right and privilege should be granted. The plaintalleged that the right and privilege claimed is a very ancient one,enjoyed in connection with the temple prior to the cession of the• Kingdom of Kandy to the British Government, and that the rightsand privileges of the temple were acknowledged, recognized, andconfirmed to the temple when all the inhabitants of the Kingdomof Kandy were by the Crown, on the cession of the Kingdom of Kandyunder the Kandyan Convention of 1815, confirmed in and allowed toenjoy the rights and privileges they had enjoyed under the KandyanGovernment; that the rights and privileges claimed were, after theKandyan Provinces, came under the British Government, enjoyedand exercised by the temple through its various Basnayak^ NOames,
J. V. A 99908 (8/50)
ISIS.
3*i&
fiSAitr X
Btoam&skaJftfiime a*Attorney-General
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and are necessary lor its proper dignify and pwsSgo and for theproper conducting and catrying out of the ceremonies to be per-formed by the temple, and farther claimed that the temple hasacquired a tight by prescription to the performance and enjoymentof the said rights and privileges.
It then* proceeded, to allege that the Government Agent lor theCentral Province, on August 27, 1912, wrongfully and m breach of.the said Kandyan Convention and agreement and td the rights andprivileges enjoyed by the temple, refused allow the plaintiffpermission to proceed through that j>©rffryn of Ambagamuwa streetwithin a hundred yards of either side of the Muhammadan mosquein the town of Garapola, to the accompaniment of tom-toms, drums,and other musjwii instruments, and still refuses to do so thoughthereto oShm requested, and went on to claim the declaration.
ges, and costs.
The defendant by his answer submitted™
That tiie plaint discloses no cause^ of action against the
defendant.
That, even if the Government Agent of the Central Province
was guilty of any wrongful act, which the defendant denies,the defendant is not liable to be sued in respect thereof-
(S) That the right claimed is not one which is known to orrecognised by law.
That the plaintiff is not vested with the said right, and
cannot maintain any action in respect thereof.
That, assuming such a right to exist, the present action is
not maintainable against the defendant.
He further denied various allegations in the plaint, and submittedthat aU assemblies and processions in the public roads, streets, andthoroughfares of the town of Gampola are governed by the provisionsof section 69 of the Police Ordinance, No. 16 of 1863, and section64 of the Local Boards Ordinance, No. 13 of 1898, and that the right,if any, of any person to hold and conduct the perahara ceremony o£procession and to beat tom-toms in the streets of Gaxnpola is subjectto such provisions, however ancient such right may be, and .that thelicenses referred to in the Government Agent's letter of August 27,1912, were the licenses referred to in the said Ordinances. That formany years past it has been thought necessary that music and tliebeating of tom-toms in all processions passing the Muhammadanmosque situated in Ambagarauwa street should be stopped, andlicenses for processions have been issued subject to the conditionthat music and tom-toms should he' stopped within fifty, yards oneither side of the said mosque.
The answer then admitted that in answer to an application madeto the Government Agent asking for ** the removal of the obstruction
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to beat tom-toms opposite the Muhammadan mosqtie in Amba-gamuwa street, Gampola, on the oooasion of the perahera of theWallahagoda dewale/’ the Government Agent replied that licensesfor the use of music and for tire assembly of the body of personsjoining the procession would be issued on 'condition that the musicwas so stopped in passing the said mosque; and submitted that filefact of the Government Agent sending such replies did not itselfconstitute an interference with any right, and further alleged thatfile right, if any, has been lost by prescription^ through non-user,and also submitted that plaintiff is not, as Basnayake Nilame,clothed with the right claimed, or with file right to maintain anaction in respect of it.
The case put forward at the hearing on behalf of the plaintiff wasas follows.
That at the time file Kandyan Kingdom was taken over by HisMajesty King George III. in 1815 a Convention was made betweenHis Majesty and the principal chiefB of file Kandyan Provinces,acting on behalf of the inhabitants, agreeing to file terms of cessionof the kingdom and the rights to be enjoyed by the inhabitants ofthe Kandyan Provinces in file future, which Convention was giveneffect to by the Proclamation of March 2, 1815. It was contendedthat this Convention and the Proclamation giving effect to itconstitute a treaty binding and immutable, which can neither beannulled or varied by His Majesty or by any legislative authorityto whom he might subsequently delegate his powers of legislation,and that nny subsequent legislation vanring this Proclamation orlimiting any rights under it is consequently invalid. That byparagraph 5 of the Convention and Proclamation it is declared that. “ the religion of Boodho, professed by the chiefs and inhabitants ofthese provinces, is declared inviolable, and its rites, ministers, andplaces of worship are to be maintained and protected."
That prior to 1815 and from time immemorial the BasnayakeNilomes of the Wallahagoda temple at Gampola have had andexercised the right, on the occasion of .the annual Esala perahera,on the occasion of the water-cutting ceremony, of proceeding fromthe dewale to a spot called Bothalapitiya on the Mahaweli-ganga,where the ceremony takes place, with elephants and tom-tombeating, and that it is an essential rite in the perahera processionthat file route to be taken should pass through Ambagamuwastreet, and that the music and beating of tom-toms should becontinuous from the time file perahera starts until it arrives at fileplace where the ceremony takes place?, and that this perahera withits necessary essentials is a rite of the religion of Buddha existing atthe date of the Convention of 1815, and therefore inviolable underthe provisions of paragraph 5 of the Convention, and that there isno power to annul or abridge the rights granted by the Conventionby any subsequent legislation.
IMS.Shaw J.
BeenayaktNUame v.Attorney.General
18
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1915.
t
Shaw J.
Baanayake
Nilome v.Attorney*General
The learned Acting District Judge having heard a large quantity ofverbal evidence, and having received in evidence a large number ofdocuments, found that this Esala perahera was a rite of the religionof Buddha which was undertaken to be maintained and protected'under the Convention, and that the accustomed route of the pera-hera and the continuous performance of the*' music, was an essentialpart of the rite, and held that the Kandyan Convention constitutesa law or compact binding and unalterable in all following times,however urgent Height be the motives, and however extreme theexigency demanding the alteration of it. He held that so much ofthe claim as claims damages against the Government could not besustained, but that the plaintiff was entitled to maintain an actionagainst the Government for a declaration of the rights claimed,and that he was the proper person to sue. Accordingly he gavejudgment for the plaintiff granting the declaration asked for, withcosts against the defendant.
From this judgment the defendant appealed, raising many objec-tions to the judgment, which I will not at the moment recapitulate,but the most important of which I will deal with later.
I am of opinion that the appeal must be allowed. The letter ofthe Government Agent of August 27, 1912, upon which the cause ofaction is based, is to tfae effect that the .licenses and permissionsrequired on the occasion of the perahera under sections 69 and 90of the Police Ordinance, 1865, for .the use of music and to beattom-toms in the streets, and under section 64. of the Local BoardsOrdinance, 1898, for the holding of a religious procession and theperformance of music in the streets of the town, would only beissued on the condition that the music was stopped fifty yardson one side of the Muhammadan, mosque in Ambagamuwa streetand was not resumed before a point fifty yards beyond the mosquewas reached. I think that, this lettered the condition mentionedin it are amply justified by the terms of the Ordinances referred to.The sections apply generally to all occasions when it is desired tohave religious processions and music in the streets, and there is noexception in favour of this or any other particular perahera. Onbehalf of the respondent it was contended that these sections were ,not intended to, and did not in fact apply to, this particular perahera,because the Wallahagoda Esala perahera is a religious rite of theBuddhist religion which existed prior to the Convention of 1815. atwhich continuous music along a particular route is essential, and(hat paragraph 6 of the Convention of 1815 must be read as giving aparticular right to this especial perahera, which the general termsof tiie sections of Ordinances referred to did not take away, andeven if in fact they did purport to take it away, they were to .thaftextent invalid, because rights acquired under a Convention by whicha territory is ceded to the Crown are inviolable, and cannot afterwardsbe annuLed or varied by the Crown by subsequent legislation.
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1 am unable to accede to either of these propositions. Theenactments are in general terms, and include all GCcasiox& on whichit is desired to hold religious or other processions in the streetsaccompanied by music; moreover, I do not think that the paragraphof the Convention referred to does in fact give any special right tothis particular perahera. The paragraph reads: ” The religion ofBoodho, professed by the chiefs and inhabitants of these provinces,is declared inviolable, and its rites, ministers, and places of worshipare. to be maintained and protected/1
In my opinioiTthe paragraph means that the religion of Buddhagenerally as practised in the ceded provinces will be maintained andprotected, not that every local custom of particular towns or dis-tricts should for ever remain unaltered; and I do not think that theparagraph gives, or was intended to give, this particular peraheraany right to be conducted in a manner different to other religiousprocessions in the Colony, or to be for ever conducted apart from theordinary police supervision for the protection of the public peaceand safety which may appear to the Government to be necessary.But even supposing that the particular right claimed was reservedby the Convention to this particular perahera, such right is nowcontrolled and varied by the provisions of the Police and LocalBoards OrdinanceSj and I am unable to agree with the argumentthat the Kandyan Convention of 1815, whether it be considered as atreaty of cession or as a piece of legislation, is immutable and notsubject to alteration- by subsequent legislation.
The sovereign powers of legislation delegated by the King to theImperial Parliament and to local Legislatures, to be exercised withhis consent as to matters within their competence and subject tothe. control of (he Imperial Parliament, are absolute and unlimited.“ If, 99 says Blackstone at Volume Comm., p. 91, “ Parliamentwould positively enact a thing to be done which is unreasonable,there is no power in the ordinary forms of the Constitution that isvested with authority to control it/' And as to the power ofColonial Legislatures,- Willes J., in delivering the judgment of theFull Court of King's Bench in Phillips v. Eyre 1 says:” We are
satisfied that it is sound law that a confirmed act of the local Legis-lature lawfully constituted, whether in a settled or ceded Colony, has,as to matters within its competence and the limits of its jurisdiction,the operation and force of sovereign legislation, though subject to be-controlled by the Imperial Parliament.”
It was suggested that under the Royal Instructions regulatinglegislation by the local Legislature in this Colony the authorityto legislate contrary to any obligations imposed by treaty wasrestricted. When, however, we look at the Royal Instructions of1883, which wefce in force when the PoKoe Ordinance was passed, wefind they contain no 6uch restriction; and those of 1&39, which were *
* L. Ft. 6 Q. B., at p. 90.
1M&
Shaw J;
BcumayakeXilame v.Attorney-{tenoral
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^ in force -when tte Local Boards Ordinance was passed, merely8haw J. contain instructions to the Governor not, inter oita, to assent toTTiiimnTnin n ^ ^ A0 providoDB of which shall appear inconsistent withJSHUme^ obligations imposed upon the Sovereign by treaty, unless the billoon^nB * suspending clause. As, however, the Royal Assent hasbeen given to both the* Ordinances referred to, the objection seemsto have no fence.
The only authority I know of which may appear to in any way torestrict the powers to legislate in abrogation or' derogation" of rightsconferred by treaty are the much-quoted dictum of Lord Mansfieldin Campbell t>. tfaff 1 and the case of White A Tuoker v. Rudolph. 2In Campbell v. Hall1 Lord Mansfield says: “The articles ofcapitulation upon which the country is surrendered, and the articlesof peace upon which it is ceded, are sacred and inviolable accordingto their true intent and meaning.1’
This dictum was in no way necessary for the decision of the printinvolved in the case. The facts of that case were that the Island ofGrenada was taken by British arms from the French King. Theisland surrendered on capitulation, one of the terms of which wasthat the inhabitants should pay no other duties than what they *before paid to the French King. After the capitulation His Majestyappointed a Governor, with power to summon an assembly to makelaws'with the consent of the Governor in Council, in the same manneras the other assemblies of the1 King’s Provinces in America. Havingdone this, and before any legislative assembly met, the Kingpurported by letters patent to impose an export duty of 4$ percentum on all produce exported from the island in lieu of all customsand export duties hitherto collected.
The decision in the case was that His Majesty having delegatedhis power of legislation in the island to an assembly, the subsequentlegislation by thef King himself was invalid, and that the plaintiff,who had paid certain duties to the collector of customs, was entitledto recover them back. The dictum of Lord Mansfield did not, andwas never intended to mean, that the articles of capitulation couldnever be altered by competent legislation, and this, I think, appearsclear from the words used by him at the end" of the judgment': “ itcan only now he done by the Assembly of the island, or by on-Act ofthe Parliament of Great Britain.”
As a matter of fact I know, as having been at one time ActingChief Justice of the Island of Grenada, that the duties have beenfrequently altered by the local Legislature, and now stand at a very -much higher rate than at the time of the capitulation* The decisionin White Tucker v. Rudolph3 turned on practically the samepoint as Campbell v. Hall.1 There the crown, by Proclamationdated April 12, 1877, proclaimed that the Transvaal should remain
2 Rolte's Tmts. Rep. 11-5.
> 1 Cotrp. 204.
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a separate Government “ with its own rights and Legislature,” andthat “ the laws now in force in the State should be retained untilaltered by competent legislative authority.” After the Crown haddone this and given up all claim to legislate in the ceded countryin favour of the Legislature to be appointed for the separate govern-ment of the Transvaal, the Administrator sought by an* order toalter the licensing laws of the country; this it was held, followingCampbell v. Hall, ‘ he had no power to do, the Crown having given upall claim to legislate for the territory. Looking* at the KandyanConvention itself, we find it has been varied in several respects bysubsequent legislation, apart from the Ordinances bearing on thisease, and no question has ever been raised as to the validity of suchlegislation. I refer as instances to the Proclamation of May 31,1816, which was prior to the time when His Majesty had delegatedhis powers of legislation in the Kandyan Provinces to the Legis-lative Council of this Colony; also to the Buddhist TemporalitiesOrdinance and to various other Ordinances passed .by . the localLegislature relating to the administration of justice which applyto the Kandyan Provinces.
Another example of treaty rights being altered by subsequentlegislation will be found in thin Colony in the alteration of Article 15of the Treaty of Colombo as to the payment of the clergy, by Ordi-nance No. 14 of 1881. In' my opinion it is dear that it' was withinthe competence of the Legislature of the Colony to vary any rightsiicquired under the Convention of 1815.
The view I have taken on this point renders it unnecessary for meto go to any length into the other points raised in the case, and with-out reviewing the whole of the evidence, I will only say that I donot agree with the finding of the Acting District Judge on the facts.I do not think that the evidence satisfactorily shows that it is anessential part of the rite of the water-cutting ceremony either thatthe perahera should pus down Ambagamuwa street, or that themusic should be continuous during the whole of the route; all thatit seems to me to show is that, in the opinion of the witnesses calledfor the plaintiff, the route and continuance of the music- wasessential because they were customary, and the evidence shows thatsimilar customary proceedings in respect of the similar ceremony inthe town of Kandy, the headquarters of the Buddhist religion, suchas the purification of the town prior to the ceremony and the con-tinuance of the ceremony for fifteen days without a break, have beendiscontinued without demur; and even in the town of; Gampolaitself the evidence seems to me to satisfactorily establish that sincethe year 1907, although there have been protests from the personshaving the management of the perahera, the route of the' processionhas either not passed the mosque concerning which the presentdispute arises. or the music has stopped when passing the mosque.
11 Cow p. Sttf.
1M6.
Shaw J.
BoenoyakoNticmeo,Attorney- /General
( 200 )•
In the course of the appeal the Attorney-General pressed uponSnZwV Court the contention that the claim in the ease, involving as it-— ' does the construction* of a treaty and the acquisition of personalrighto under it, was not within the jurisdiction of the Court.
'AgMwg- There can be no doufit that the law on this point is as laid downby Lord Alvexston in West Rand Central Cold Mining Co. e. Rom,1where he says: ” There is a series of authorities from the year 1798down to the present time holding that matters which foil properlyto be determined,, by the Crown by treaty or as an act of State arenot subject to the jurisdiction of the Municipal Courts, and thatrights supposed to to be acquired thereunder cannot be enforced bysuch Courts and a little lower down on the same page, where hesays: “ it is a well-established principle of law that the transactionsof independent States between each other are governed by otherlaws than those which Municipal Courts administer.”
Similar principles were applied in Rueiomjee v. The Queen2Cook v. Sprigg,* and other cases quoted by the Attorney-General.It does not seem to me, however, that .these cases or the principleslaid down in them apply to the present case. What the Court washere asked to construe and to enforce were alleged rights under theProclamation of March 2, 1815. In my opinion this Proclamationis not n Treaty. The Treaty or Convention was entered into priorto the Proclamation, and is contained in a separate document signedby the various chiefs of the Kandyan Provinces. The originalbulletin of March 2, 1815, printed at page 180 of Legislative Actsof the Ceylon Government printed in 1856, sets out the preambleto the Proclamation, which concludes &6 follows: “ On thosegrounds His Excellency the Governor has acceded to the wishesof the chiefs and people of the Kandyan Provinces, and a Conven-tion has in consequence been held, the result of which the followingAct is destined to record and proclaim.”
The Proclamation affirzning what was agreed to by the Conventionappears to me to be a piece of legislation by His Majesty, who thenhad the sole power of legislating in the ceded Provinces, to giveeffect to the agreements arrived at, and is subject to be construedand enforced by the: Courts in the same manner as any other act oflegislation.,
Three other points were taken by the Attorney-General andargued before us:—
That no action lies against the Crown in respect of the cause
of action alleged;
That the plaintiff has no cause of action as- Basnayake
Nilatne and trustee of the Wallahagoda temple; and
i (29«) 2 K.B., at pp. 408 9* (1699) A. C. 072.
* 2 Q. B. D. 69.
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That the letter from the Government Agent of , August 27,1912. did not constitute any infringement of a right,even if suoh right* existed.
At the conclusion of the case the Attorney-General stated that hedid not wish to take any technical points, and withdrew his objectionsto the judgment on these grounds. . I will, therefore, not deal withthem beyond saying that nothing in this case must be construed asinferring any acquiescence on my part to any view that a claim ofthis character lies against the Government of this Colony or couldbe enforced in England under a Petition of Bight.
In my opinion the appeal should be allowed, and judgment enteredfor the defendant with costs.
De Sampayo A.J.—
The plaintiff is the Basnayake Nilame and trustee of the Wallaha-goda dewale within the Local Board limits of the town of Gampola.It is customary for the annual Esala perahera or procession of thatdewale to march through the streets of Gampola, including what isknown as Ambagamuwa road, with elephants, to the accompani-ment of tom-toms and other music. For some years the processionhas been conducted on license issued by the authorities under theprovisions of the Police Ordinance, No. 16 of 1865, and the LocalBoards Ordinance, No. 18 of 1898. In the Ambagamuwa road issituated a Muhammadan mosque, and some trouble having arisenbetween the Muhammadans and the Buddhists in connection withthe beating of tom-toms 'when the procession passed' the mosque,and a riot having taken place in consequence, a condition came to beinsisted on that music should be stopped within a certain distanceon either side of the mosque, and in order to mark the distance theauthorities in 1911 placed two posts with signboards notifying thatthe beating of tom-toms should be stopped between these two posts.On August 17, 1912, when the procession of that year was about totake place, the President of the District Committee, appointed uhderthe Buddhist Temporalities Ordinance wrote to the GovernmentAgent of Kandy, a letter in which he claimed for the dewale the rightto conduct the procession without any interruption of music, andrequested the Government Agent to remove the posts, which weredescribed as an “ obstruction ’* to the beating of tom-toms oppositethe mosque. Apparently the Government Agent was addressedeither in his capacity as Chairman of the Local Board of Gampolaor as having police authority. In reply, the Government Agentinformed the President that the license would be issued asusual, subject to the condition above referred to. Thereupon theprocession was , abandoned and- the plaintiff brought this actionagainst the Attorney-General as representing the Crown. Theplaint asserted tb&t the right of the plaintiff as Basnayake Nilameof the dewale to Viaduct the perahera without any restriction was
1915.
Shaw J.
Baenayakt
NUamev*
Attorney-
General
* «f«&
DbSa&payo
AJ“.
Basnayak*Nilame v. .Attomm*General
( 202 )
• w
acknowledged and confirmed by the Kandyan Convention of 1B15,and stated *as a cause of action that Ac Government Agent hadwrongfully, and in breach of the Kandyan Convention and of therights and privileges of the said temple, refused to allow the plaintiffpermission to conduct the Esala procession within one hundredyards of either side o? the mosque in Ambagamuwa road, andproceeded* to pray that “ .the plaintiff, as Basnayake Nilame of theWallahagoda temple, may be declared entitled to the right andprivilege claimed by him, together with Be. 25 as damages alreadyincurred, and Bs0 25 as further damages per year until the saidprivilege and right is granted/’ The plaintiff's case was put in theCourt below as a matter of contract constituted by Article 5 of theKandyan Convention, but the District Judge, rejecting the theoryof a contract, but purporting to act on what he considered theanalogy of an action ret vindicatio, which was held to be maintainableagainst the Crown in Le Meeurier v. The Attorney-General/ declaredthat the plaintiff as Basnayake Nilame and trustee of the Wallaha-goda temple was entitled to conduct the. procession with elephants,to the accompaniment of tom-toms, drums, and other musicalinstruments, through all the streets of Gampola, including thatjtortion of Ambagamuwa road with which this action is concerned,and he entered judgment for the plaintiff accordingly with costs ofaction, blit without damages. From tikis judgment the Attorney-General has appealed.
Among other defences the Attorney-General pleaded that thisaction, being one ex delicto, was not maintainable against the Crown,that the plaintiff as Basnayake Nilame or trustee had no right to sueon the .alleged cause of action, and that no cause of action had infact arisen. These points were argued before us at great lengthon both sides. But on the last day of argument the Attorney-General intimated to us that for the purposes of the present appeal hewaived these points and desired a decision on the other questionsinvolved in the case, and it is therefore unnecessary to express anyopinion on them, though I would have been quite prepared to do so.The questions remaining to be considered are: (1) whether theevidence satisfactorily shows' the Buddhist rite in connection withthe Esala. perahera to extend to the use of an unvarying route andcontinuous beating of tom-toms; (2) whether such a privilege canbe said .to have been secured by Article 5 of the Kandyan Conven-tion; (3): whether on the footing that the Kandyan Convention is' 8treaty the plaintiff is not bound by subsequent legislation relatingto processions and music; and (4) whether the rights under thetreaty, whatever they are, can be enforced by action in a MunicipalCourt..
The District Judge has gone at length into the history *of dewalesand the institution of the Esala perahera, but his citations are
* 5 N. L. & 55.
V 203 )
Ba&mgal'*
iVdomev.
Attorn**
Qenend
rema* Yal^e,only, for the abeam of any statement that any particular *****rout !» the une rasing betting of tom«k>ms during the whole course j>k Saxpavoof te processioi is essential to the ceremony. The District Judge
ehit.ly relies, however, cur the oral evidence of the dewale tenants,sudhas tiie kaparala, fc.n-tom beaters, and trumpeters, who speakof tke practice «. uing ti-jir period o*i service and of the tradition inreg? rd to the natter. f hey add that unless the perahent proceedsale ig the Amb puuw’ road, and unless the tom-toms are beatencontinuously without aiy Interrupt ton for any cause whatever, theg<*f isr whose honour the ceramc^sy takes place will send greatcalamities upon the pe* pie, and they even attribute to this cause therecent floods at Gampda sadThe sudden death of a certain kapu-rala. The District Judge seriously accepts all this evidence, thoughhe himself says in a moment of critical exercise of judgment that"all this sounds artificial, unreal, forced for the purposes of thiscase, 44 but he rejects bis own doubt, and adlds that the matter hast-o be judged, not according to modem standards, but according tothe ideas of a Sinhalese Buddhist before 1815. The problem of aside person lying at the point of death, or of a restive horse orelephant becoming dangerous to the processionists themselves is con-sidered by him, and is disposed .of by the remark that it was 44 utterlyimpossible for the Sinhalese mind to conceive of the stopping of themusic for a horse or a side man,4* and that 4-everything had to giveway to the perahero.44 I confess that I find it difficult to believethat the religion of Buddha, which so insistently preaches the doctrineof gentleness and regard for life, has anything to do with this speciesof inhumanity. It is curious that even the more intelligent witnesses,like the Dewa Nilame of the Dalada Maligawa, the priest of the Niyan-gampaha Vibare, and the Secretary of th8 Buddhist Committee,proceed on (he same lines as the dewale tenants. A possible andeven probable explanation is that they are (to use the District Judge'sexpression) 44 forced for the purposes of this case 41 to give the evidencethey have given, because any admission as to the stoppage of musicon account of a special emergency, such as was put to them, wouldseriously prejudice the whole case. For, then, it may have to belogically admitted also that the necessities of public order and peacewould be a good ground for such stoppage. Moreover, these witnesseswho were apparently called as experts, have not been able, anymom than the illiterate dewale tenants, to point .to any religious orhistorical work for the proposition that an unvarying route andunceasing music are of the essence of the Esala perahera. Taking theoral evidence as bona fide, it seems to me that it amounts to no morethan saying that, so far as the knowledge of the witnesses gpes, thecustom has been such as they describe, and that they argue fromwhat has been to what ought to be. Even this, as will presentlybe seen, is negatived by foots proved in the case; but before Abidingto these facts, I may mention a lot of evidence which has beep given
( 204 ;
by Mr. Efcneligoda, the Kachcheri Mudaliyar of Anuradhapura,
Db Sabpwo kut which the District Judge has failed to notice. The MudaliyarAJ. says that at the Ellala Sohana (the tomb of Sing Ellala at Anu-Bamayake radkapu**) Buddhist processions stop their music as a mark ofNtiamev. respect in accordance with an order made by Dutugemunu. Theallusion ho doubt is to the story recorded in the Mahawansa, howthat King Dutugemunu, having killed King Ellala in single combat,erected a monument in honour of the dead king, and ordained thatall processions when passing the monument should as a mark ofrespect stop the music. The order appears to be observed to thisday. So that ancient authority shows that the custom in connectionwith the .Esala or any other procession is not “ adamantine, 11 asthe learned District Judge puts it, but is subject rather to regulationby those in power, and that the unvarying character claimed for itis not founded upon any rule of religious obligation, for otherwiseKing Dutugemunu, the great patron of Buddhism and himself apious Buddhist, would hardly have interfered with it for a meresentimental or personal reason. Quite in .harmony with this viewof the matter is the practice under .the British Government. Theevidence indicates that for a great many years, probably ever sincethe provisions of the Police Ordinance relating to processions andstreet music were put into active operation, the Wallahagodadewale authorities have applied for and obtained a license, and theprocession has been conducted under the supervision of the police,and for some years—certainly since 1902—the license has beengranted subject to the condition that the procession shall stop thebeating of tom-toms when passing the Ambagamuwa road mosque,or shall take another route. In 1912—the year with which weare particularly concerned—the plaintiff himself applied for andobtained a license.to conduct- the procession avoiding’ the Amba-gamuwa road, though the procession was abandoned, it is. said,owing to the protests of the dewale tenants. It is true that in aprevious year al6o the procession was abandoned for the 6amereason, but that does not diminish the force of the effect of theimposition and observance of the condition on the general question.The plaintiff's very case is that he has an absolute right, secured bythe Kandyan Convention, to conduct the procession, and that nolicense to do so is required. And yet Basnayake Nilames of thedewale, including plaintiff himself, have hitherto acknowledged thenecessity of a license being obtained from .the constituted authorities.The power to grant a license necessarily implies the power to with-hold it or to impose Conditions. Similarly, in Kandy, where thegreat perahera is participated in not only by the various dewales,'but by bhe Maligawa itself, it has been the practice, not perhaps toobtain a licence, but to inform the Government Agent, who there-upon 11 ke$ the necessary steps to keep order by means of the police.To bring elephants into the town for the purpose of the perahera a
( 205 )
license is absolutely required, and is invariably applied lor, and the 1915*chiefs of the Maligawa and the .dewales even enter into a security ^bond to answer for any injury or damage that may be caused by AJ.the elephants. Here it may be noted that the claim being .to have saan^akee procession with elephants as well as tom-toms, the circumstance Nilam*«.just mentioned seriously affects the plaintiff's case. One importantadmission made by the Dewa Nilame is that, though docording tothe right contended for it is imperative that the perahera shouldtake place during fifteen consecutive days without interruption, theperahera has, at least since the seventies of the last century, beenintermitted on all Sundays (hiring the period of the festival. TheI)ewa Nilame explains that this originated from the fact thatMrs. Parsons, wife of the then Government Agent, was ill, and theprocession was stopped .on a Sunday at the request of Mr. Parsons. ‘
Why Mrs. Parsons's illness should require the stoppage of noise ona Sunday only does not appear. But this explanation, such as itis, does not account for the intermission ever since. The DistrictJudge, however, suggests that the Anglican Church of St. Paul beingin the neighbourhood of the temple, and the Church of Englandbeing at one time the established church, the representatives of theGovernment were able to interfere with the perahera in that manner.
The suggestion does not adequately explain the matter either. 1have no doubt that the Sunday procession was stopped at the desireof some Government official, but I entertain a serious doubt that,if the -right claimed is of vital importance as represented, the DewaiJilame, the four Basnayake Nilames, and the numerous worshipperswould have complacently agreed for the last thirty-five years andmore to perform a maimed rite. The same departure from thealleged unvarying and invariable custom is exhibited at Anuradha-pura, the sacred city of Buddhism. In 1905 certain arrangementswere agreed upon in conference by the High Priest with theGovernment Agent, and were embodied in a notification by theGovernor (see document D 10), whereby various restrictions werelaid down with regard to the beating of tom-toms in connectionwith the Esala and other annual festivals; inter alia; that “ incase of processions having to pass any place of public worshipin which service is proceeding, the beating of tom-toms, musio,and all noise likely to disturb the service must cease within onehundred yards, of such building " This, again, shows that the HighPriest of the sacred shrines and the Buddhist generally, who havesince acted up to the arrangements so made, did not consider thatthe cessation of tom-toms and other music in front of places ofworship was a violation of the rites of the Esala perahera. After-examining the whole evidence, I have come to the conclusion thatthe plaintiff has failed to establish the claim for the ujnceasing useof tom-toms during the whole course of the procession, and thatthe evidence rather proves the contrary.
( 206 )
' 19ll This being my view of the facts, it is, perhaps, hardly necessaryI>b auspkvo * should deal with the legal points involved in the case, but asAJ. they were debated at great length on both sides, and as they aregf|^jin themselves important, I think it is right for me to do so. TheNitotMv* Convention of March 2, 1815, was entered into between the BritishSovereign and certain chiefs on behalf of the people in connectionwith the establishment of His Majesty’s Government in the KandyanProvinces. The nature of the instrument is a matter of somedifficulty to determine. The official bulletin of that date calls it a“ Public Instrument of Treaty," and the Attorney-General waswilling that it should be so treated in this case. I shall deal withthe case on that footing, though I am bound to say that there isgood ground for thinking that the instrument, whatever it may l>ecalled, derives all its efficacy and virtue from its being recordedand proclaimed by the Proclamation of the same date. Now,Article 5 of the Convention runs thus: -** The religion of Boodho,professed by the chiefs and inhabitants of these provinces, isdeclared inviolable, and its rites, ministers, and places of worship areto be maintained and protected." What does this mean? Doesit rigidly provide that, even iu matters touching the general peaceand safety of the countty and the various classes of its people, thehands of the British Government should ever after be tied? Doesit necessarily mean that the rites of .the Buddhist religion in all theirexternal details, even where they affect public order, should beinvariably maintained ? I think it will appear otherwise when thematter is regarded in the proper historical perspective. It is aninvariable rule of British policy to respect the religion of a conqueredcountry. Quite the contrary, policy had been followed by the Govern-ments of the Portuguese and the Dutch, who preceded the English,and the .Buddhists of those parts of the Island which were occupiedby them had various causes of grievance in that respect. This stateof things was doubtless in. the minds of those who entered into theConvention, and it seems to me that the essence of the articlein-question is to assure freedom of worship to the Buddhists ofthe Kandyan Provinces which were then annexed to the Britishterritories. This freedom cannot, however, be absolute, but' miistnecessarily be subject to higher considerations of State and thefundamental principles of government. This is so in all cases.For instance, the practice of suttee had by inveterate custom acquiredthe force of religious obligation among the Hindus of India, and waseven protected by the provision of the Statute Geo. III., c. 142, s. 12,and yet it was by the Regulation 18 of 1829 declared illegal and madepunishable as an offence, the preamble to that Act reciting that theLegislature did not intend to depart “ from one of the first qpd mostimportant principles of the system of British Government in India,that all clauses of the people be secure in the observance of theirreligious usi.ges, so long as that system can be adhered to without
( . 207 )
violation of the paramount dictates of justice and. humanity/' 1915.Applying these considerations to the present case, I cannot think-that Article 5 of the Kandyan Convention according to its purpose AJ.nnd meaning justifies the conclusion that if the Esala perahera, inthe course whioh it pursues or the manner in which it is conducted, JKfame*.threatens danger to public health or safety, the duly institutedauthorities shall not have the power to regulate it. The first artioleof this very Convention recites that the oppressions of 'the Kidg. ofKandy 4tin (he general contempt and contravention of all civilrights " had become intolerable, 41 the acts arid maxims of hisGovernment being equally and entirely devoid of that justice whichshould secure the safety of his subjects/9 mid i>y the second articlethe king was accordingly 44 declared fallen and deposed from the officeof king." It would be strange if this same Convention be construedus introducing a new species of tyranny under the protection of theBritish Government, namely, the tyranny of processions conductedwithout any regard to the safety of the processionists themselves andthe common rights of all other classes of the subjects. That this isnot the effect of Article 5 is shown from what was declared almostimmediately afterwards by the British Government. In the yoar1817 some .of the chiefs became unfaithful, and the insurrection whioharose having been put down, the Proclamation of November 21, 1818,was issued laying down various regulations for the government ofthe Kandyan Provinces. Clause 16 of this Proclamation declaredthat44 As well the priest as all the ceremonies mid processions of theBudhoo religion shall receive the respect which in former times wasshown them; at the same time it is in nowise to be understood thatthe protection of Government is to be denied to the peaeeabh.exercise by all other persons of the religion which they respectivelyprofess ", Ac. This, indeed, is the spirit which may be said to haveinspired the terms of the Convention when it guaranteed to thepeople of Kandy the right of free exercise of their religion; that isto say, that it should be exercised consistently with the performance .of the supreme duty of Government towards the rest of His Majesty'ssubjects. The precaution of requiring a license and Of imposinga condition in the license for the Esala perahera of the plaintiff'sdewale was to conserve public order and to prevent riots between thedifferent religious bodies, such as took place at Gampola in connec-tion with this perahera. For the British Government to have bounditself by the Convention not to take such precautions would be tohave deliberately abandoned one of the chief and essential functionsof sovereignty. It is obvious that such could not have been thetrue intent of the Convention.
The next point to consider is the effect of subsequent.legislationrelating to processions and tom-toms. The Argument Ion behalfof the plaintiff is that Article 5 of the Convention is fundamentallaw, and that any legislation' inconsistent with it is unconstitutional
( 208 )
and inoperative. Before I refer to the chief authority upon whichthis argument is founded, I should like to say that, in my opinion,there is within the four comers of the Convention itself sufficientreservation of power to the British Government to effect alterationsand reforms. After providing that the Kandyans shall enjoy theircivil rights " according to the laws,' institutions, and customsestablished and in force amongst them ” (Article 4), and that thereligion of Buddha and its rights shall be protected (Article 5), andafter prohibiting every species of bodily torture (Article 6), and anysentence of death except by the warrant of the British Government(Article 7), the Convention proceeds in Article 8 to provide asfollows: “ Subject to these conditions, the administration of civiland oriminai justice and police over the Kandyan-inhabitants of thesaid Provinces is to be exercised according to established forms andby the ordinary authorities. Saving always tke inherent right ofGovernment to redress grievances and reform abuses in dll instanceswhatever, particular or general, where such interposition shdU becomenecessary.M It is clear to my mind that herein is contained anexpress reservation of power to introduce changes in respect of thematters provided for in the previous # articles. Even if the savingclause, which I have italicized, is limited, as I think it should not be,to Article 8 itself, the regulation of public processions and streetmusic is a matter touching the “ administration of police,'* and,therefore, the provisions in question in the* Police Ordinance, 1865,and the Local Boards Ordinance, 1898, are quite within thepurview of the saving clause. The larger operation of that clause,however, is illustrated by the laws enacted and applied without anydemur from the date of the Convention down to the present time.I have already referred to the Proclamation of November 21, 1818,by which the jurisdiction conferred upon the ancient tribunals ofKandy by Article 8 was entirely swept away. As to other instances,I need only mention the Ordinances which interfere with or modifythe Kandyan law, the tenure of lands, including those of the templesthemselves, the system of marriages and their solemnization anddissolution, and the administration of the Buddhist temporalities.There are Ordinance No. 6 of 1852, Ordinance No. 13 of 1859, nowsuperseded by Ordinance No. 3 of 1870, Ordinance No. 4 of 1870,and, lastly, Ordinance No. 3 of 1889, now superseded by OrdinanceNo. 8 of 1905. This last is the most important in this connection,because it relates to matters intimately affecting the. Buddhistpriesthood, who under the Buddhist ecclesiastical laws were therightful administrators of the affairs of the temples and theirproperty and offerings, but from whom, though the Conventionprovided for their protection, the right was wholly taken away andvested in popularly elected lay committees and trustees. *Not onlyso, but the Ordinance by one of its clauses prohibits the acquisition,by purchase, gift,., or otherwise, of immovable property by the
1915.
Da SahfatoA.J.
Baanayake
NUameVm
( 209 )
temples except with the consent of the Governor, though thetemples equally with the priests were to be maintained and pro-tected under the Convention. It is interesting to note .that theplaintiff in this action is himself a creature of the Buddhist Tem-poralities Ordinance, No. 8 of 1905, and would have no right to sueat all but for his status as Basnayake Nilame and trustee appointedunder that Ordinance. It was stated at the Bar, in avoidance of* the difficulty arising from the enactment and acceptance of thisOrdinance, that the Buddhists themselves had asked for it. If so,the fact makes the matter worse for the plaintiff, because then itwould appear that in the estimation of the Buddhists themselvesArticle 5 of the Convention has not the inviolability which is nowclaimed for it. The course of legislation to which I have referredseriously interferes with other articles of the Convention, e.'/.,,Artiele 4. If oue article of the Conventiou is sacred, so must anotherbe, and yet no one has scud or can say that Ordinance No. 5 of 1852and Ordinance No. 3 of 1870, which according to the argumentcontravene Article 4 of the Convention, are invalid and inoperative.It was in this connection suggested that mistaken acquiescencein all this legislation did not disentitle a party to take theobjection when it arose in an action. I should say rather thatthe course of legislation for a whole century which has beenuniformly and freely accepted and. acted upon by the Kandyansin their relations amongst themselves and with the Governmentthrows a reflex light upon the nature of the Convention itself, andshows it not to be of the inviolable character claimed for it.
In this part of the case Mr. Bawa, for the plaintiff, mainly relieson the judgment in Campbell v. Hall,1 in which Lord Mansfield,referring to the consequences of the conquest of a country, laysdown six preliminary propositions, the third of which is in thefollowing terms:“ That the articles of capitulation upon which the
country is surrendered, and the articles of peace by which it is ceded,are sacred and inviolable according to .their true intent and meaning. ’*The Attorney-General, however, points out that this is an obiterdictum,- and contends that it is therefore not binding. The pointof the decision in that ease is undoubtedly different, but as to thosepropositions, Lord Mansfield says that they were propositions inwhich both sides were agreed, and which were too clear to be contro-verted. The proposition above quoted is reproduced as indisputablein recognized text books on the Royal Prerogative and Constitu-tional Law, and I think we ought to accept it as absolutely correct.I have already ventured to state what, in my opinion, is “ the trueintent and mewing ” of the Kandyan Convention, and the proposi-tion in question may, I think, be applied to this case without theplaintiff being able to derive any benefit from it. But further, whenthe articles of capitulation and of peace are declared to ob “ sacred
i 1 Cotop. 204.
1915.
DbSabpayo
A.J.
Basnayake
Nilame
Attorney-
General
( 210 )
if (J
! Mb mid inviolable ” according to their true intent and meaning, thereXte sI-a^AYo vema^ns the question whether they are so in the domain o£ law asA.J. administered by the Courts, or only in the international and politicalBe'—ake sP^ere* In the former case the Court must interpret the treaty,Nttutne v. and ought to have tire power to hold that any legislative act isAQ&u&ml u^fa v*rea 88 being a violation of the treaty. No case has, however,been cited *to us in support of the contention that the Court can doso. There are indeed cases, such as In re Adam,1 in which it hasbeen decided that on a question os to what sygiem of law governsa particular subject-matter, the treaty, if ft contains a provision onthe subject, determines the matter, Tins may be illustrated in thepresent cose by reference to Article 4 of the Convention, by whichit is agreed that the civil rights of the Kandyans shall be governedbv the K«r4y*vu law. But for the Court to enforce the treaty asagainst eubsequent acts of the Sovereign or of .the Legislature isquite a, different matter. Mr. Bawa referred us also to the SouthAfrican case of White & Twicer v. Rudolph* but that case by no meanssupports his contention. There, in 1879, after the first annexation ofthe Transvaal, the defendant as Landdrost of Utrecht had, upon theorder of Che Administrator of the Transvaal,, forcibly entered theplaintiff's shop and seized the stock of liquor therein, in order toprevent sale of liquor to the soldiers* then engaged in the Zulu, war,notwithstanding the fact that the plaintiff hod a license to .deal inwines and spirits issued to him by the Government of the Transvaal,and it was held that the Administrator had no authority to issue theorder to the defendant, and that the defendant's acts were illegal,inasmuch as it was provided by the Annexation Proclamation thatthe Transvaal should remain a separate Government with its ownlaws and legislature, and inasmuch as the Crown, whom the Ad-ministrator represented, liod no longer any legislative authority byN reason of the existence of the Legislature which had been confirmedand continued by the Proclamation. This is, in fact, the pointdecided by Lord Mansfied in Campbell v. Hall,* namely, that whenthe fririg delegates to a legislative assembly in a conquered oountrythe power of legislation vested in him, he thereby deprives himselfof the right of exercising it again. It will be seen that these decisionshave no bearing on the present case, except so for as .they uphold thesupremacy of a local legislature. The cases cited by the Attorney-General further confirm the view that the laws enacted by a com-petent legislature in a conquered or ceded. colony have force andvalidity, even though they may be inconsistent with the provisionsof a treaty. The local case of Government Agent v. Suddhana 1 is adirect authority bearing on .this ease. For there also, in answer to acharge of beating tom-toms without a license in contravention ofsection 90 cf the Police Ordinance, 1865, Article 5 of the Kandyan
,* 1 Mac re P. C. 481.3 tCowp. 804.
1 Kotzet Trans. Rep. 115.* 5 Tamb. 39.
( 211 )
Convention was invoked as justifying the beating oftom* toms1915,
without a license on the occasion of aBuddhist religiousceremony,“
and Layard C.J. held, inter alia, thatthe Convention did not. anda.J.
could not, control the Legislature soas to exempt theBuddhists" –
from the operation of the Police Ordinance, and the learned Chief A'tlafue v.Justice suggested that, if there was any grievance on the subject, theremedy should be constitutional and not judicial. On the generalquestion of the power and authority of a local Legislature, it issufficient to quote the following passage from the judgment inPhillip# v. Eyre l: "A confirmed act of the locar Legislature law-fully constituted, whether in a settled or conquered colony, has,as to matters within its competence and the limits of its jurisdiction,the operation and force of sovereign legislation, though subject tobe controlled by the Imperial Parliament. M The matter of com-petence and jurisdiction of a local Legislature is to be determinedby the act constituting it. The Legislative Council of Ceylon wasconstituted by the Letters Patent of March 19, 1838, with plenarypower to make laws subject only to Boy&l Instructions, and subjectto the power and authority of the King to disallow any such laws,and to make, with the consent of Parliament or with the adviceof the Privy Council, such laws as may appear necessary. TheInstructions of 1833 were those in operation when the PoliceOrdinance, 1865, was passed, but they contain nothing which mayaffect the validity of that Ordinance. In the later Instructions ofDecember 6, 1889, which were in force at the time of the enactmentof the Local Boards Ordinance, 1898, there is a provision whichrequires notice. Clause XXV. directs that the Governor shall notassent to certain specified classes of Ordinances unless they containa clause suspending their operation until the signification in theIsland of the King’s pleasure. One of the classes specified is anyOrdinance " the provisions of which shall appear inconsistent withobligations imposed upon Us by treaty. ” The reference is, I think,to treaties with Sovereign Powers, and not to.such instrumentsas the Kandyan Convention. However that may be. the LocalBoards Ordinance, 1898, though it contains no suspensory clause,was* duly sanctioned, and no question can now arise as to thevalidity of section 64 of the Ordinance, which, notwithstandingArticle 5 of the Convention, gives power to the Board to grantpermission for religious or public processions and street music andto regulate and restrict such processions and music. The Attorney-General reminded us of another instance of an Ordinance over-riding the articles of an instrument- similar to the Kandyan Con-vention. In Article 18 of the Dutch Capitulation it was provided44 that the clergy and other ecclesiastical servants should receive thesame pay and emoluments as they had. from the Company, ” andyet the Ordinance No. 14 of 1881, providing for the discortinuauce
1 Jo L. J. Q. B. 28.
19
1915.
De Samt*ayo
A.J.
lUuMayafceX-iJame v.Attorney-General
( 212 )
of ecclesiastical stipends, equally affected the chaplains of the1 Hitch Presbyterian Church. The authorities show that .treaties andlegislation are on quite different and independent planes; inother words, a treaty is a political and not a legal document, and itssanctions are other than those which a court of law recognizes orenforces. In harmony with this is the principle that the ordinarycivil courts have no jurisdiction in such matters as rights founded ontreaties. In Cook v. Sprigg 1 it was successfully argued that asbetween the treaty-making Powers the acts done are acts of Statenot to be interpreted or enforced by Municipal Courts, and that theMime principle applied as between either Sovereign Power and itsown subjects in respect of the same matters; and the Privy Councilobserved:“ It is a well-established principle of law that the trans-
actions of independent States between each other are governed byother laws than those which Municipal Courts administer"; andagain, even as regards private property, their Lordships said:" If
there is either an express or a well-understood bargain betweenthe ceding potentate and the Government to which the cession ismade that private property shall be respected, that is only a bargainwhich can be enforced by Sovereign against Sovereign in theordinary course of diplomatic pressure. " Further, in West Sand('antral Gold Minin# Co. v. Sex 2 it was observed: “ There is a seriesof authority from the year 1793 down to the present time holding thatmatters which fall properly to be determined by the Crown by treatyor an act of State are not subject to the jurisdiction of the Muni-cipal Courts, and that rights supposed to be acquired thereundercannot be enforced by such courts. " The same principle was laiddown by the Privy Council in the Indian case of Saiah Salig Sam v.The Secretary of State for India 3, which was concerned with the effectof the arrangements made with Shah AUum, the King of Delhi, onthe annexation of that kingdom to the British Crown. In thejudgment of the Privy Council this important passage occurs:“ If,
shortly after the arrangements had been made, the British Govern-ment had found it necessary as a matter of political expediencyto alter, without the consent of Shah Allum, the arrangements in-troduced into the assigned territory, it is impossible to conceivethat a court of law would have had jurisdiction to enforce the arrange-ments in a suit brought by His Majesty (late King of Delhi)either by granting a specific performance or by awarding damagesfor the breach of it. " This observation has special application tothe circumstances of this case, and it should, I think, be held that,if the provisions of the Police Ordinance, 1865, and the Local BoardsOrdinance, 1898, in respect of licenses for processions and tom-tomsin any way contravene the Kandyan Convention, which, as I have.already ventured to express my opinion, they do not neither the
i (1199) A. C. 572.*(1905) 9 K. hi 891.
3 18 Sutherland Weekly Reports 389.
( 213 )
District Court nor this Court has jurisdiction to 'enforce the Con-vention as against the Ordinances.
For the above reasons, I am of opinion that .the judgmentappealed against is erroneous, and I would set it aside, and dismiss>he plaintiff's action with costs in both Courts.
Set aside.
1915.
Dk Sami’ayoA.J.
Baftntnjnb,Nilamt r.Attorney-Gtneral