SUDALI ANDY ASARY ,et al ,Petitioners ,and VANDEN DREESEN (Inspector of Police)

016-NLR-NLR-V-54-SUDALI-ANDY-ASARY-et-al-Petitioners-and-VANDEN-DREESEN-Inspector-of-Police.pdf

60
Sudali Andy Aaary v. Vanden Dreesen
1952Present: Choksy A.J.SUDAXiI ANDY AS ARY, et al., Petitioners, and VANDEN DREESEN(Inspector of Police), Respondent
Habeas Corpus Applications Nos. 1566—1570 (Hatton)
Habeas corpus—Deportation Order—Dower of Court to examine whether it was madeon sufficient material—Malice—“Citizen of Ceylon”—“British subject inCeylon '’—Citizenship Act, bio. 18 of 1948—Ceylon (Constitution) Order inCouncil, 1946, Art. 29 (2) (b)—British Nationality Act of 1948—Immigrants andEmigrants Act, No. 20 of 1948, ss. 30, 31 (1) (d), 41, 50.
Certain persons, alleged to be illegal immigrants, were arrested and producedbefore a Magistrate and remanded, pending prosecution on a charge of illicitlyentering Ceylon in contravention of the Immigrants and Emigrants Act, No. 20of 1948. On their being brought before the Court on a later date, the Policeinformed the Court that they had not sufficient evidence for a prosecution underthe Act but that the alleged immigrants would be arrested, upon their dischargefrom Court, under Deportation Orders made by the Minister of Defence andExternal Affairs under s. 31 (d) of the Immigrants and Emigrants Act betweentheir production in Court and their discharge. Upon their being so arrestedand detained—pending deportation from Ceylon—applications were madefor writs of habeas corpus in respect of the detenues on the grounds,inter alia, that the police had acted mala fide in producing and remanding themunder cover of the Criminal Procedure Code, not with genuine intent to prosecutethem under the Immigrants and Emigrants Act but wrongfully and maliciouslywith the object of abusing the provisions of the Criminal Procedure Code andthus keeping the persons under the Count’s custody until the Police were ableto obtain Deportation Orders from the Minister under that Act, and thattherefore the entire proceedings commencing with the arrest and productionbefore the Magistrate, the remand from time to time and the discharge of thedetenues by the Magistrate upon the application of the prosecution, the obtain-ing of the Deportation Orders meanwhile, the subsequent arrest under theseOrders—after the discharge by the Magistrate-—and the detention thereunderpending deportation were “ a fraud upon the Statute ” and an abuse of thepowers of the Magistrate’s Court.
Held : (i) The Court could not, under Habeas Corpus, deal with the regularityor validity of the arrest and detention of the detenues under the CriminalProcedure Code as that custody had already terminated and come to an endby order of the Magistrate made prior to the application for habeas corpus.
As far as the arrest and detention under the Deportation Orders wereconcerned, if the Court was satisfied that there had been a competent exercise ofthe lawful authority vested in the Minister, then the Court would not go intothe further question whether the Minister had material before him which aCourt of law would consider sufficient for exercising that power. If however itwas demonstrated to the Court that the power was being used for any purposeother than the legitimate one which the law had in contemplation, i.e., if itwere being used for a collateral or indirect purpose, or were only a colourableexercise of the power, or if it were a mere sham to cover up something extraneousto the statute, then the exercise of the power would be “ a fraud upon theStatute ” and could not be upheld.
Where the power to make a Deportation Order is given to the Ministerif he “ deems it to be conducive to the public interest ” to make it, the conditionis a subjective and not an objective one and it is for the Minister to decidewhether or not the public interest requires the Deportation Order to be made,
OHOKSY A.J.—Sudali Andy Asary v. Vanden jjreesen
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and not for the Court to decide whether or not there was reasonable cause orground for the Minister to “ deem it to be conducive to the public interest ”to make the order—Ldversidge’s case 1 applied.
The expression “ Citizen of Ceylon ” in the Immigrants and EmigrantsAct, No. 20 of 1948, must be given the same meaning as in the CitizenshipAct, No. 18 of 1948. It is not equivalent to a “ British subject resident inCeylon ”, although a “ Ceylon Citizen ” is a “ British subject ”,
After the British Nationality Act of 1948 was passed a “ British subject ”is one who, in addition to owing allegiance to the Sovereign is a “ citizen ”either of “ The United Kingdom and Colonies " or of any of the self-governingunits of the British Commonwealth of Nations specifically mentioned in thatAct. There is also a transitory class of “ British subjects without citizenship ”The detenues in the present case could not claim to be *“ citizens of Ceylon ”merely by virtue of owing allegiance to the Sovereign and long residence, oreven domicile, in Ceylon, unless they had each acquired “the status of a citizen ofCeylon ” created for the first time by the Citizenship Act of 1948, and the onusof proving that status was on them.
.^LpPLICATTONS for writs of habeas corpus.
SuntTieralingam, with Christie Fernando, in support.
R. R. Orossette-Tharnbiah, Q.C., Solicitor-General, with H. A.Wijemanne, Crown Counsel, for the respondent.
Cur. adv. vult.
February 22, 1952. Choksy A.J.—
Five petitions for writs of habeas corpus were filed by Sudali AndyAsary against the Inspector of Police, Hatton, for the production inCourt of the bodies of five persons, three of whom are said to be cousinsof the petitioner and two his nephews. All matters were listed for argu-ment together and by consent of parties the arguments urged in thefirst application No. 1566 for the production of the body of Nadarajahalias Pitehakara Asari were to be treated as arguments in all the cases.In view of the consolidation of the proceedings I am making one orderwhich is to be treated as an order in each on the five cases.
The petitioner avers that the five persons in respect of whom he hasmade these five applications were all goldsmiths resident at No. 1, MainStreet, Dickoya, until 6th September, 1951. All five individuals werearrested on 6th September, 1951, and produced before the Magistrate of theMagistrate’s Court at Hatton on 7th September, 1951, and thereafterremanded again until 25th September on which date each of them wasallowed to stand on bail to appear on 9th October, 1951. The SerialReports which were submitted to the Magistrate on 7th Septemberwhen each of the detenues was produced before him, stated that therespective persons had been arrested by the Police “on a charge ofillicit landing ”. On the 9th October, however, the Inspector of Policestated to Court that the Police found that they did not have sufficient'evidence for a prosecution under the Immigrants and Emigrants Act,No. 20 of 1948, and that therefore the Controller of Immigration and
1 (1941) A. B.R. 338.
68. CHOK^Y A.J.—SudaVi A.ndy A.sary v. Vanden Dreeseti
Emigration had declined to sanction a prosecution, and the police officeraccordingly moved that the accused in the several eases be discharged.He also informed the Court that he had with him five Deportation Orderssigned by the Minister of Defence and External Affairs ordering him todetain the respective detenues in Police custody until such time as eachwas placed on board a ship or aircraft about to leave Ceylon. He con-cluded his statement by saying that once the accused were dischargedhe would have to act under the deportation orders issued by the Ministerof Defence and External Affairs. Counsel appearing for the accused, asthey were called in the proceedings before the Magistrate, thereuponmade several submissions with a view to the accused not being takeninto custody under the Deportation Orders upon their discharge. from Court until after they had returned home from Court. He alsourged that the provisions of the Criminal Procedure Code had been abusedby the Police and that they had “ practised a fraud on the Court ” byusing the processes of the Court to have the suspects remanded untilthe Police were able to secure Deportation Orders under Section 31 of theImmigrants and Emigrants Act. In the end the Magistrate directed thePolice not to arrest the detenues in the premises of the Court. Thisorder was duly observed and the suspects were arrested under the Depor-tation Orders immediately after they had gone beyond the Court premises.The petitioner thereupoh filed the present applications in this Courton the 9th October, 1951. The detenues were released on bail to attendthis Court pending the final decision of the various applications.
The grounds on which the present applications have been made arethat the arrests were illegal, that the process of the Magistrate’s Court hadbeen utilised improperly and the detenues unlawfully arrested andkept in custody pending the issue of the Deportation Orders, that thePolice had acted maliciously under cover of the Criminal ProcedureCode in not producing the detenues before the Magistrate with any genuineintent to charge them for any offence, that the Inspector of Police, whois the respondent in these proceedings, had acted mala fide, that there-arrest and detention of the detenues in pursuance of the DeportationOrders was illegal and that the Deportation Orders themselves wereultra vires of the powers under section 31 of the Immigrants Act and werea “fraud upon the statute ”. The petitioner further contends that theImmigrants and Emigrants Act and connected Acts such as the Citizen-ship Act, No. 18 of 1948, the Indian and Pakistani Residents (Citizen-ship) Act, No. 3 of 1949, are ultra vires of the legislature of Ceylon underArticle 29 (2) (b) of the Ceylon (Constitution) Order in Council 1946,in so far as these Acts or any of them make the respective detenuesliable to the disability of not being allowed to continue to reside inCeylon and carry on their occupation.
The respondent has filed an affidavit from himself and one from the.police officer who arrested the respective detenues, to the latter of whichare annexed copies of the statements said to have been voluntarily madeby the respective detenues either to the Police or to a Justice of thePeace. The position taken up by the respondent, as resulting from theseaffidavits, is that the respective persons concerned did not have validpassports bearing endorsements in the form required, that on information
CHOKjSY A. J.—Sudali A.tidy A.sary v. Vanden DrJesen69
received from an informant these five persons were suspected of havingillicitly entered Ceylon, that they made statements admitting that theyhad all entered Ceylon illicitly within a period ranging from four to sixmonths prior to the date of their arrest, and that they had all reachedCeylon by a sailing vessel and landed at Mannar which was not an approvedport of entry to Ceylon.
Counter-affidavits, from each of the detenues, have been filed by thepetitioner wherein they state that they immigrated to Ceylon in or aboutthe years 1941, 1942 or 1943 respectively, and that each of them becamea member of the “ community of inhabitants and citizens of Ceylonknown as the Indian Tamil Community in the Report of the Commissionon Constitutional Reform signed by Lord Soulbury, Sir F. J. F. Reevesand F. J. Burrows Each takes up the position that since his migrationto Ceylon he has been and still is a subject and a citizen of Ceylon con-tinuing to owe allegiance to His Hate Majesty King George the Sixth,who was the then reigning Sovereign, that none of them had ceased to becitizens of Ceylon on the grant of Independence to Ceylon or on theenactment of the Citizenship Act, No. 18 of 1948, by the Parliament ofCeylon, that they had not acted or conducted themselves in any maimerc< not conducive to the public interest ”, that the alleged statementsmade by them were made, in each instance, as a result of assaults by thePolice and while under fear of grave bodily harm, and therefore underduress. They all specially deny that they admitted having come toCeylon illicitly. They all state in common that none of them had leftCeylon since June, 1949, and that the rice ration books in support oftheir residence in Ceylon had been removed by the police officer whoarrested them. They in their turn proceed to set out in detail the eventswhich I have set out as having taken place from the 6th Septemberonwards and end their affidavits by incorporating into them the variouslegal positions taken up by the petitioner in his original petition andaffidavit. They however submit that their arrest and detention incustody not only from the 6th October downwards but from the 6thSeptember downwards were equally illegal. They further allege that whenthe Police found themselves unable to secure “ Removal Orders ”under Section 28 (1) of the Immigrants Act, they proceeded to secureDeportation Orders under section 31 of the Act and that the Police didso maliciously, wrongfully, unlawfully and for the collateral purpose ofnullifying the order of discharge made by the Magistrate on the 9thOctober, 1951.
The hearing of these petitions commenced on the 3rd December last,as that was the date convenient to all parties concerned. The noticesissued on the respondent in the earlier stage of these proceedings weretreated as Orders Nisi. The Solicitor-General sought to justify thearrest made on the 9th October, 1951, under the Deportation Orders madeon 26th September, 1951, which were first referred to in the Magistrate’sCourt proceedings on the 9th October on which date the detenues weredischarged by the Magistrate.
The learned Solicitor-General's position was that if Nadarajah wasdetained on a commitment which was prima facie regular and valid on theface of it, that is an answer to the rule nisi, which must then be discharged,
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CMOASY A.J.—Sudali Andy Asary v. Vanden Dreesen
unless the other side shows that it was not a bona fide exercise of powerbut was a misuse of it for some ulterior or collateral purpose. He sub-mitted that the deportation order was regular and valid on the face of itwith the consequence that the detention is at least prima facie presumedto be valid {vide sec. 41 of the Immigrants Act). He conceded that forthe deportation order to be even prima facie valid, it was necessary thatNadarajah should be a person to whom Part VI of the Immigrants Actshould apply, and that he should not be a citizen of Ceylon or an exemptedperson (sec. 30). It was unnecessary, he argued, that Nadarajah shouldbe convicted under the Immigrants and Emigrants Act of having illegallyentered Ceylon, but that if the Minister had information that Nadarajahwas not a citizen of Ceylon and had illegally immigrated into Ceylon, hecould make the deportation order under sec. 31(1) (d) provided the Minister“ deems it to be conducive to the public interest ” to make a deportationorder against that person. The order itself has been produced in theseproceedings. It describes itself as a “ Deportation Order ”, under themain heading reading “ The Immigrants & Emigrants Act, No. 20 of1948 ”, and reads as follows :—
“ Whereas I, Don Stephen Senanayake, Minister of Defence andExternal Affairs deem it to be conducive to the public interest to makea deportation order against Nadarajah alias Pitchakarai Asari, son ofVala Asari.
Now, therefore, by virtue of the powers vested in me by section 31of the Immigrants and Emigrants Act, No. 20 of 1948, I do by thisOrder—
require the said Nadaraja alias Pitchakara Asari, son of Vala
Asari to leave, and to remain thereafter out of Ceylon ; and
direct that the said Nadaraja alias Pitchakara Asari, son of Vala
Asari be detained in police custody until such time as he isplaced on board a ship or aircraft about to leave Ceylon.
(Sgd.) D. S. Sekauayake,
Minister of Defence and External Affairs.
Colombo, 26th September, 1951. ”
On the face of it, therefore, the deportation order purports to be madeunder the relevant provisions of the Act (although it does not specificallystate that Nadarajah is a person to whom Part VI of the Act applies).The learned Solicitor-General, therefore, argued that the rule nisi mustbe discharged as the deportation order was on the face of it a lawfulexercise of his powers by the appropriate Minister, and that the papersupon which an application for a writ of habeas corpus had been made didnot- disclose any mala fides or abuse of power such as would entitle theCourt to go behind the deportation order.
In view of the contrary submissions by Mr. Suntheralingam it becomesnecessary to examine the provisions of the Immigrants and EmigrantsAct and also of tho Citizenship Act, No. 18 of 1948.
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CHOKSY A.J.—Sudali Andy A.nary v. Vande Dreesen71
[After dealing with the earlier provisions of the Immigrants and Emi-grants Act, His Lordship continued :—] Part VI deals with the depor-tation from Ceylon of persons other than citizens of Ceylon or exemptedpersons. Section 30 enacts that Part VI applies to every person unlesshe is a citizen of Ceylon or unless he has been exempted from the pro-visions of Part VI. Section 31 then proceeds to provide the differentclasses of cases in which the Minister may make a Deportation Orderrequiring the person named in it to leave Ceylon and to remain there-after out of Ceylon. [His Lordship then referred to the provisions ofSection 31, and continued :—■] Parts V and VI, and certain provisionsof the Citizenship Act to which I shall refer later, were the storm-centresof the controversy in Court and gave the greatest scope for the dramaticindignation which Mr. Suntheralingam, with all the vigour of his persona-lity, was able to command.
Various other provisions of the Immigration Act were referred tosuch as section 41, under which any person who is detained in the exerciseof any powers conferred by or under the Act shall while so detained bedeemed to be in lawful custody ; section 46, which makes all offencesunder the Act cognizable and triable summarily by a Magistrate ;section 47. under which the burden of proving any allegation by anyperson that, inter alia, he is not a citizen of Ceylon, or that he is a citizenof Ceylon, shall lie upon that person ; and lastly, section 50, because theexpression ” Citizen of Ceylon ” is defined as meaning a citizen of Ceylonunder any law for the time being in force. '
The Solicitor- General's position was that the expression “ Citizen ofCeylon ” in the Immigration Act (which came into operation on November1, 1949) must be given the same meaning as is contained in the Citizen-ship Act, No. 18 of 1948, which came into operation on 15th November,1948. He relied on Craies on Statute Law to support his contentionthat words used in a later statute must be presumed to have the samemeaning as that attached to them in an earlier statute. He also statedthat the definition of the expression “ Citizen of Ceylon ” in section 50necessarily pointed to the meaning attached to that expression by theCitizenship Act which was enacted earlier and which deals with mattersrelating to citizenship.
The Citizenship Act commences by stating that from the appointeddate, namely 15th November, 1948, “ there shall be a status to be knownas ‘ the status of a citizen of Ceylon ’ Section 2 (2) proceeds toenact the two ways in which a person “ shall be or become entitled to thestatus of a citizen of Ceylon ”, namely by right of descent as providedin the Act, or alternatively, by virtue of registration, also as providedby this Act or by any other Act authorising the grant of such statusby registration in any special case. Every person who is possessed ofthat status is referred to in the Act as a “ Citizen of Ceylon ” (section 2
). A citizen of Ceylon may for any purpose in Ceylon describe hisnationality by the use of the expression “ eitizen of Ceylon [HisLordship then referred to certain other provisions of the CitizenshipAct, and continued :—]
Mr. Suntheralingam argued that the expression “ citizen of Ceylon ”in section 50 of the Immigration Act means not only a citizen under the
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CHOKStiT A.J.— Sudali Andy Asciry v. Vanden Dreesen
Citizenship Act but any person who can claim to be a citizen “ underany law for the time being in force His contention is that there wasa status larger than that created by the Citizenship Act, attached toall British subjects resident in Ceylon prior to the enactment of theCitizenship Act, which status he said was not taken away by the Act,that that larger status still subsists, and those claiming that largerstatus had all the rights and privileges, duties and obligations, whichattach to the status of a citizen' of Ceylon, as created and defined by theCitizenship Act. In other words, his position is that those persons whocome within the expression “ citizen of Ceylon ”, as defined in the Citizen-ship Act, form only a section of the inhabitants of Ceylon from amongthose who were British subjects, previously resident in Ceylon, thatthose not within that definition are not outside the pale of citizenship,but that they are still possessed of all such rights of citizenship as theypreviously had and enjoyed except such as have been taken away orspecially conferred by statutes. He said that the expression “ citizen ofCeylon ” as defined in the Act is only a part of the connotation conveyedby the expression “ British subject in Ceylon ”. Indeed, his contentionwas that the status of a “ British subject in Ceylon ” is equivalent tothat of a “ citizen of Ceylon ”, the word “ citizen ” being in modernterminology the equivalent of the word “ subject ”. He relied on thedefinition of the term “ citizen ” in Volume 3 of the Encyclopaediaof the Laws of England (2nd edition, page 85) which states that “ citizen ”is a term employed under the republican form of Government as theequivalent of the term “ subject ” in monarchies of feudal origin. Healso relied on the fact that the expression “ British subject ” was still tobe found in our laws. Eor example, he referred to Article 13 of the Ceylon(Constitution) Order in Council of 1946 which disqualified any personfrom election or appointment as a Senator “ if he is not a British subjector is by virtue of his own act under any acknowledgment of allegiance,obedience or adherence to a foreign power or state ”— “ Britishsubject ” being defined by Article 3 as “ any person who is aBritish subject according to the law for the time being of the UnitedKingdom, and any person who has been naturalised under any enact-ments of any of His Majesty’s Dominions, and any person who is a citizen
or subject of any of the Indian States”. He contrasted this
with the provisions of-the Ceylon (Parliamentary Elections) Order inCouncil of 1946 where the expression “ British subject ” occurred earlierbut was removed and replaced by the expression “ citizen of Ceylon ”.He utilised these provisions in support of his argument that both thestatus of a citizen of Ceylon and of a British subject resident in Ceylonco-existed today and that any “ British subject ” who is resident inCeylon—he said later he meant by “ resident ” one who is domiciledin Ceylon—has nowhere been deprived of his rights as such and that,therefore, all the rights connoted by the expression “ British subject ”continued intact except such rights as have been expressly taken awayby statute. Neither the Ceylon Independence Act (George VI, Ch. 7) northe Ceylon Independence Order in Council of 1947 nor the CitizenshipAct of 1948 had made any difference to that position, he said. Thestatus and rights of a natural born British subject or of a naturalizedBritish subject, in Ceylon, continued unaffected, he submitted.
CHOKSY A.J.—Sudali Andy Asary v. Vanden breeseti
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It cannot be gainsaid that the status of a British subject continuesto attach down to the present day to all those bom in any of Her Majesty’sterritories and under allegiance to Her Majesty, but does it thereforefollow that every British subject has all the rights and privileges createdor afforded by the civil laws of any dominion in which he may haveacquired a domicile or in which he may be resident for the time being ?
Strictly speaking the term “ British subject ” is used to describe thenationality to which the person belongs, in the sense in which that termis used in international law. The nationality of a person in the broadsense describes the particular State which has jurisdiction over a personattached to that State by ties of allegiance to it; that'nationality adheresto the person whether he is a resident within or outside the territory ofthat State, so long as he does not alter his subjection to that State andtransfer his allegiance to another. The nationals of a State are all thosepersons which that State is under duty to protect abroad. At English com-mon law the basis of nationality was permanent allegiance to the Sovereign.All those bom within any part of the territories of the British Grown andunder allegiance to the Sovereign were called British subjects by birth.No distinction was made between persons bom or naturalized in theUnited Kingdom, or descended from persons bom in the United Kingdom,on the one hand, and those acquiring British nationality in similar waysin other British possessions, on the other hand.
The British Nationality Act of 1948 was adverted to in the course ofthe argument but was not gone into as it did not appear to have a verydirect bearing on the case. On an examination of its provisions itwould appear as if they are of some assistance in considering the argu-ment put forward by Mr. Suntheralingam that those British subjectsresident in Ceylon, who are not “ Citizens ” of Ceylon within the Citizen-ship Act, have still a status which has not been taken away and whichstatus enables them to claim and exercise all the rights and privilegesattached to “ Citizens ” of Ceylon within the Citizenship Act, except ofcourse such rights or privileges as may expressly be given by legislationonly to those who are “ citizens ” under the Citizenship Act. His argu-ment was that wherever “ citizens ” as defined by the Citizenship Actare intended to be referred to, then words would be used to explicitlysay so, and that if the Immigrants Act had intended to refer to such“ citizens ” only it would not have defined the expression “ Citizen ofCeylon ” by saying that it “ means a Citizen of Ceylon under any lawfor the time being in force ”. The last words, he said, clearly indicatedthat the legislature had in mind not only “ Citizens ” under the CitizenshipAct but also “ Citizens of Ceylon ” in the broader sense, which status,he maintained, continued to exist, and under which his client was in thesame legal situation as a “ Ceylon Citizen ” under the Citizenship Actand consequently not at all liable to deportation.
The British Nationality Act creates citizenship of the United Kingdomas a sub-class within the status of a British subject and it would appearas if possession of that citizenship automatically confers the status of aBritish subject on such a person. With the progress of the largeroverseas colonies towards complete self-government the maintenance of
74OHOfeSY A .(T.—SndaVi Andy Asary v. Vanden Dreesen
the universal common status of a British subject became less and lesspracticable. Canada introduced the concept of a Canadian nationalityand the Union of South Africa that of a Union nationality. Therebegan to grow up distinct nationalities attached to each of the countriesnow forming members of the British Commonwealth, as they gainedprogressively greater and wider internal and external independence.From and after 1st January, 1949 (that being the date on which theBritish Nationality Act came into force), the term ‘‘ British subject ”seems to me to describe a person who enjoys the new status of a citizenof the ‘ United Kingdom and colonies ’, or alternatively, the status ofa citizen of any of the specified British Commonwealth countries, accord-ing to the laws thereof. Indeed, section 1 (2) of that Act equates theexpression “ British subject” with the expression “Commonwealth Citizen”in express terms and states that both expressions shall have the samemeaning. The status of “ British subject ” is also retained bycertain residents of the Republic of Ireland, under certain circumstances,but others are purely and solely citizens of that Republic. Until citizen-ship laws are enacted and put into operation in every one of the specifiedCommonwealth countries there will exist a class of British subjectspossessing no citizenship corresponding to the different communitieswithin the British Commonwealth and such a person is designated“ a British subject without citizenship ” and continues to remain such untilhe becomes a citizen either of “ the United Kingdom and Colonies ”or acitizen of any of the Commonwealth countries referred to in Section 1
of the Act. The result appears to be that the term “ British subject ”is equated to, and involves the possession of, the status of “ a citizen ofthe United Kingdom and Colonies ” or of any of Commonwealth countriesspecified in the Act, except in the case of the transitional class of thosewho are British subjects without citizenship because of the absence oflaws in any particular territories of Her Majesty enabling them to qualifyfor citizenship in those respective territories.
It will therefore be seen that as from 1949 the term “ British subject ”takes on a new meaning. A person has thereafter the status of a Britishsubject not merely by virtue of allegiance to Her Majesty but alsobecause of the additional qualification that he is either a citizen of “theUnited Kingdom and Colonies ” or a citizen of any one of the Common-wealth countries mentioned in the Act—unless he falls with in the temporarycategory of a “ British subject without citizenship ”. In other words,citizenship of either “the United Kingdom and Colonies ” or of any of theabove Commonwealth countries is an essential qualification for being aBritish subject, unless the person is within the transitional class of“ British subject without citizenship ” which had to be specially createdto provide for those who are “ potential ” citizens of a country untilthey blossom into actual citizens of that country when laws of citizen-ship are passed in that country. The distinction that existed before1949 between a person who was not a natural-bom British subject andother British subjects was removed by section 31 of the Act whichassimilates the rights of a natural-born British subject to those of personswho have become British subjects by other ways than birthwithin the territory and allegiance of Her Majesty. Under the present
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CHOKSY A.J.—Sudali Andy Asary v. Yandiin Dreesen75
state of affairs the status of a British subject cannot be claimed apartfrom the citizenship of either the " United Kingdom and Colonies ” orof any of the specified Commonwealth countries, except of course in thecase of the special class of “ British subject without citizenship ”.
In view of this, it does not seem to be possible to maintain that from1949 Nadarajah continued to enjoy the status of a British subject withwhatever rights or privileges such a status may have connoted before thatdate (and as to which I express no opinion), because from 1949 a “ Britishsubject ” is only one who in addition to owing allegiance to the Sovereignis a citizen either of “ the United Kingdom and Colonies ” or of any of thespecified self-governing units of the British Commonwealth of Nations,unless he falls within the transitory class. Nadarajah would not, inthe submission of Mr. Suntheralingam, fall into the transitory class.It is therefore unnecessary to consider that position further. His counselhowever maintained that Nadarajah was a “ citizen of Ceylon ” in thebroader sense for which he contended, by virtue of the mere fact of hishaving been bom in British India in 1923 within the allegiance of HisMajesty the late King George VI and his continued residence in Ceylonfrom 1943, in the same allegiance. That position, as it seems to me,is not maintainable. Nadarajah has not been proved to be a “ citizen ofCeylon ” within the Citizenship Act, and not having been so proved,he was not, in my opinion, a “ citizen of Ceylon ” to exempt himself fromthe provisions of the Immigrants Act to which those who are not “ citizensof Ceylon ” are subject. Mr. Suntheralingam stated generally, in aidof his argument that Nadarajah was a “ Ceylon citizen ”, that his clientwas not a citizen of India either, as on6th September, 1951, the date ofhis arrest, in view of the provisions of the Constitution of India, since thepeople of India formed themselves into “ a Sovereign Democratic Re-public ” as from 26th November, 1949. A cursory view shews thatArticle 5 of this Constitution declares who were citizens of India as atthe commencement of the Constitution. Article 8 affords rights ofcitizenship to certain persons ordinarily resident outside India, as at thedate of the Constitution. Article 11 expressly reserves to the Parliamentof India the power to make provisions with respect to the acquisition andtermination of citizenship and other matters relating to citizenship.
The question whether or not he was a citizen of India on the date ofhis arrest in September was not really discussed or gone into at theextended hearing of the arguments. However that may be, it does notfollow that because he may not have been a citizen of India at the dateof his arrest, in September last, he was necessarily a citizen of Ceylon onthat date. If he was therefore not a citizen of either India or Ceylon,at the material date, then as he was not entitled in my view to call him-self a British subject at all after 1st January, 1949", it may well be that hewas an ” alien ” within section 26 of the Citizenship Act of 1948. Ifthat be the resulting position then he was certainly liable to be dealtwith under the provisions of the Immigrants Act.
As an alternative argument Mr. Suntheralingam submitted that ithad not been established that the detenues were not citizens of Ceylon.Pirstly he pointed to the omission of any statement in the Deportation
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CHOKS'V1 A.J.—S'udaXi Andy Asa/ry v. FoncZeit Drcesen
Order that Nadarajah was not a citizen of Ceylon. The omission wasstated to be a significant one which had prejudiced his client in that if theDeportation Order had expressly said that his client was not a citizen ofCeylon his client would have been confronted with that position upon theDeportation Order being shown to him, and that it would then haveoccurred to his client, it is said, to immediately assert his Ceylon citizen-ship and request the police officer, who sought to detain him under theDeportation Order, to take him to a Court of law so that his client couldrequest the Court to release him on the ground that he was a citizen ofCeylon, and therefore could not be deported from Ceylon. It is of coursetheoretically possible that had those words occun ed in the DeportationOrder they would have evoked the succeeding train of thought in Nada-rajah’s mind, but from the practical point of view it does not appear tome that any prejudice has in fact been caused to Mr. Suntheralingam’sclient by the omission to which he attached so much importance.
The learned Solicitor-General contended that the Deportation Orderis not required to have all the particularity which one expects to findin an indictment, or even a charge, against a person accused of an offence.If, on the face of it, there was sufficient material to show that there hadbeen the competent exercise of a lawful authority by the person in whomthat power and authority had been reposed by the Legislature, that wouldbe a sufficient answer to the rule nisi under habeas corpus proceedings.The omission to state some particulars in the Form which may be utilisedfor the purpose of exercising that power, he argued, was immaterial.The real question that the Court had to consider was whether the powersought to be exercised had been given, and whether that power had beenprirna, facie duly exercised by the competent authority. He relied on thecase of Rex v. Governor of Brixton Prison, ex parte Pitt Rivers 1. Inthat case the applicant was detained in prison under an Order madeby the Secretary of State for Home Affairs under Defence Regulationswhich empowered the Secretary of State to make a detention order againsta person where by reason of the existence of the circumstances specifiedin the relevant regulation the Secretary of State believed it to be “ neces-sary to exercise control over that person ”. The Order made againstthe applicant did not contain a recital by the Secretary of Stateof the fact that he believed it to be “ necessary to exercisecontrol over ” the applicant and the applicant accordinglyclaimed that by reason of this omission the order of detention was badon the face of it. The Court rejected this contention. In that casetoo the applicant was a British subject by birth who had been detainedwithout any charge having been preferred against him and withouttrial, from 27th June, 1940. It was not till 12th October, 1940, that hewas informed in writing of the grounds on which Sir John Andersonmade order against him. It seems to me that the reasons for upholdingthat order of detention despite the omission of words which are saidto be vital to its validity could be applied in the present case.
I would say that the position that the detenues were not citizens ofCeylon was implicit in the Deporta tion Orders even though not explicitlystated to be so. The deportation orders purport on the face of them to1 (1942) All England Law Reports, Vol. 1, 207.
CHOK1SY A.J.—Stulali Andy Asary v. Vanden Dreesen
77
be made under the Tmmigrants and Emigrants Act, and by virtue of thepowers vested in tbe Minister by section 31 of the Act. Those recitalswould have given the detenues sufficient notice of the provisions of thelaw under which the Deportation Orders were made. The absence of thestatement that the detenues were not Ceylon citizens does not necessarilywarrant the inference that the Minister acted without having reasonablegrounds for coming to the conclusion that the cases before him wereones where the power could be invoked. Whether or not the detenueswere citizens of Ceylon could not depend on a recital of that fact in theDeportation Orders. The want of Ceylon citizenship was a conditionprecedent to any order of deportation, and the absence of a statementto that effect cannot be made the basis of an inference that the Ministeracted completely without jurisdiction. “ A right exercise of the powersmust, of course, be made, but the exact form of the order for detentionis immaterial …. provided that enough clearly appears from theorder of the Secretary of State to show what powers the latter was using ”.That statement from the judgment of Viscount Caldecote, the LordChief Justice, applies to the present case. Humphreys J. pointed outthat the Courts never allow a mere irregularity on the face of a commit-ment to prevail over the substance of the matter. I therefore hold thatthe omission in the present cases of the statement that the detenues werenot Ceylon citizens has not been in any way prejudicial to the detenuesand that had the words appeared in the Deportation Orders it wouldnot in any way have materially added to their information or assistedthe detenues in obtaining their release.
There was a second aspect to his argument that it had not been esta-blished that the detenues were not citizens of Ceylon, and that was adenial of any opportunity to the detenues to prove that they werecitizens of Ceylon before the Deportation Orders were made.
Every person, unless he is a citizen of Ceylon or is an exempted person,is liable to be dealt with under Part VT of the Immigrants Act. Once theDeportation Order is made and the person against whom it is to operate isdetained in Police custody he is deemed under the Act to be in legalcustody—section 41. The burden therefore of proving that the Deporta-tion Order itself was illegal is on the person affected by that DeportationOrder. Eurthermore, section 47 expressly indicates that with referenceto any proceeding under the Act or with reference to anything done underthe Act, if it is alleged by any person that he is or he is not a citizen ofCeylon the burden of proving that fact shall lie upon that person.Therefore the mention, or the omission, in the Deportation Order, of thefact that the person concerned is not a citizen of Ceylon leaves the posi-tion unaltered ; the burden of proving that he is a Ceylon citizen stillremains on him. Sir. Suntheralingam admitted that the DeportationOrder is an act or proceeding under the Immigrants Act. He statedtherefore that his client should have had the opportunity of proving thathe was a citizen of Ceylon at the date of the Deportation Order and thatthe failure to afford his client such an opportunity vitiates the Deporta-tion Order and all consequential steps taken upon that order. Quiteapart from the fact that the mere omission of the alleged words of great
(
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CHOKSY A. J.—Sudali Ajndy -Asar-y v. Vanden DreeseH
import from the Deportation Order could not by itself have depriveddetenues of that opportunity, it is to be observed that no procedure islaid down to be followed by the Minister when acting under section 31 (1)(d), nor is there any indication that the person to be deported by actionunder that provision is to have an opportunity of showing cause anteriorto the order being made. Even in the cases where the Minister has tohave evidence before him prior to making a Deportation Order—suchas the four cases dealt with by section 31 (1) (a)—there is no provisionrequiring or entitling the person against whom the section is beinginvoked to be noticed to be present, or to show cause against any orderbeing made. It is of some significance in this connection that whilethe Minister has the right to delegate any power, duty ot function vestedin or imposed or conferred upon the Minister by the Act, he is expresslyprecluded by Section 6 from delegating to anyone the power of makinga Deportation Order conferred by section 31. In entrusting such apower to the Minister and to the Minister alone, the legislature appears tohave assumed, as anyone would be entitled to assume in the firstinstance, that such a high executive officer of the Dominion would actwith a sense of responsibility before exercising such a power in the 00×0*86of his executive functions. For it is purely as the executive that heacts when discharging his functions under this section and in no sense as aCourt of law. Any danger to the subject from any arbitrary or capri-cious exercise of such power is conserved by the right which the subjecthas of questioning or challenging the action of the Minister by habeascorpus proceedings. If the subject can place before this Court factswhich prima facie show‘that the Minister acted in bad faith (with allthat that expression connotes in the context of habeas corpus proceedings)then the Court is entitled to go behind the writ or warrant of commit-ment, and examine all the facts which led up to it. In the absence ofsuch a prima facie case, one cannot assume that the Minister has actedirresponsibly but woxdd rather be entitled to go on the presump-tion of the regularity of all official acts. The matter does not how-ever end there. There is no material to show that even up to thedate of the hearing of these applications any representations had beenmade to or material placed before the appropriate Minister to demonstratethat the detenues were citizens of Ceylon. Even the opportxmityafforded by these Applications was not made use of to prove that thedetenues were Ceylon citizens. Reliance was placed on the mere state-ments in the counter-affidavits of the detenues that they became citizensof Ceylon since their migration to Ceylon and that they did not cease tobe citizens of Ceylon on the grant of Independence to Ceylon, or on theenactment of the Citizenship Act. In the petition and affidavit filed on the9th October by the petitioner, who claimed to be a cousin of the detenues,the petitioner has been content with the bare assertion that the arrestand prosecution and the Deportation Order were illegal and that thedetenues coxdd not be dealt with under section 31 (1) of the Immigrationand Emigration Act. Counsel for the petitioner rested his case on thecontention that the detenues were citizens of Ceylon in the larger sensein which he said every British subject who had been resident in Ceylonprior to the Ceylon Independence Act and subsequent legislation, was a
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citizen of CeyloD ; and on that basis be asserted that every British subjecthad rights and immunities equal to those enjoyed by persons who arecitizens of Ceylon within the narrower sense of the Citizenship Act. Hedid not seek to take up the alternative position that if that contentionfailed the detenues should be permitted to place evidence before the Courtthat they were citizens of Ceylon within the Citizenship Act. He didnot at any stage move to call evidence on any point.
It was then said that the want of a due sense of responsibility and ofpersonal regard for the personal freedom of the individual was manifestfrom the fact that only the confessions were before the Minister and thathe must have acted entirely upon the confessions which the detenues arealleged to have made while in Police custody, one directly to a Policeofficer and the others to a Justice of the Peace, but whilst they werewithin the sphere of influence of the Police. These confessions have beenchallenged as having been obtained by duress and physical violenceexercised by officers of the Police whilst the detenues were in their custody.The Solicitor-General stated that the papers in Court showed that therewas at least one other source of information which presumably wouldhave been available to the Minister, namely, the informant referred toin the affidavit tendered on behalf of the respondent. There is no reasonto suppose that the Minister must necessarily have acted exclusivelyupon the impugned confessions. It is however unnecessary to speculate asto the adequacy or the sufficiency or otherwise of the material whichwas available to the Minister before he made the Deportation Orders.It is sufficient to say that if the necessary conditions, which entitle aCourt to go beyond the writ or warrant under which detention has takenplace, had been fulfilled, the Court would be under duty to investigatethe facts which led up to the detention. It therefore becomes necessaryto examine and ascertain the circumstances in which the Court shouldundertake that task. Many authorities were referred to on both sidesand as the ultimate issue involved is the liberty of the subject it becomesnecessary to consider them in some detail.
Before I proceed to do that it is desirable that I should deal with andget out of the way certain submissions made on matters which, itwas argued, did bring these cases within the ambit of the conditionsunder which the Court is bound to go behind the orders ofcommitment.
Much warmth was manifested as counsel for the petitioner dealt with theallegations of assault made against the' Police. I do not think that,even if true, the allegations that the confessions were obtained by illegalassaults and duress bring these cases within the principles upon whichthe Court can go behind the prima facie authority, for the arrests anddetentions. It is however to be noted that no complaint whatsoeverhad been made either by Nadarajah or by the petitioner or by anyoneelse, of the duress and violence alleged against the Police until theseproceedings commenced. No representations were made to the Ministerby or on behalf of the detenues between the date of the first arrest on6th September, 1950, and the date of their discharge by the Magistrateon the 9th October, 1951.
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It was next argued that the “ public interest ” in support of whichthe Deportation Order is made must he stated on the face of the document*or that it must at least appear from the document that the interest tobe sub-served is in fact of a public nature. Had the words been “ deemsthe public interest to be sub-served …. then Mr. Suntheralingam
argued it might be stated that what was contemplated was a subjectivestate of mind of the Minister, which could not be demonstrated on theface of the order, but that as the words are “ where the Minister deemsit to be conducive to the public interest …. ” then something
objective is contemplated and that therefore the order itself must showwhat is the public interest in aid of which the Deportation Order is made.Hi. contention was that the public interest to be served by the deportationorder should be either of a pecuniary nature or of a kind where the legalrights or liabilities of a class or section of the general community atlarge are affected. I do not think that the “public interest ” contemplatedby section 31 (1) (d) has to be narrowed down or restricted in the mannersuggested, for it may well be that the public interest may be affectedby considerations other than those portrayed by Mr. Suntheralingam.For example, it would be apparent that it is in the public interest thatillegal immigration should be put a stop to because if it is allowed tocontinue unchecked it is bound in the long run to affect the economiccondition of the citizens of Ceylon. It may also be that undesirableelements will thus enter the community at large, and affect the health,morals, or general welfare of the country. The other provisions ofsection 31 give an indication of the “ mischief ” at which the deportationprovisions are aimed. These, each in their own way, affect the publicinterest, and give an indication that the expression public interest in thecontext is not to be narrowed down or confined to the types indicatedby counsel for the petitioner. There may well be other factors, whichmay affect the public safety or public welfare which it is not possibleto envisage and enumerate and for that reason the Minister was giventhe very wide powers in the last clause of section 31 to catch up caseswhich it would not be possible to specifically adumbrate.
Dealing more direely with the Deportation Orders and the stepswhich had been taken for obtaining them Mr. Suntheralingam contendedthat the Immigration Act provided specific remedies for different typesof cases. In the present instance the arrests were on the footing that thedetenues were illegal immigrants. They were remanded as such, andshould therefore have been proceeded against on that footing, and if theprosecutions were likely to fail on the ground of want of sufficient evidencethe detenues should have been discharged. No exception could havebeen taken if such a course had been followed. But what Mr. Sunthera-lingam vehemently protested against was that the authorities, havingfailed to obtain Removal Orders because of the insufficiency of evidence,then invoked the provisions of section 31 to obtain the DeportationOrders which, in effect, were very little different from the RemovalOrders which they failed .to obtain. He admitted that although thedetenues were discharged on the ground of insufficiency of evidence tosatisfy a court of law that the detenues were illegal immigrants, never-theless, deportation orders could be issued against such persons. What
CHOKSY A.J.—Sudali Andy Asary v. Vanden Dreesen
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he strongly pressed was that in such cases the Minister cannot act on thevery material on which proceedings had been initiated for illegal immi-gration and been abandoned, and make deportation orders on the self-same insufficient material. This argument is based on the suppositionthat there was no other information on which the Minister acted inmaking the Deportation Orders. He supplemented his contention onthis aspect by stating that the Minister cannot deal under section 31(1) (d) with cases which fall within sub-sections (a) to (c). I fail to seewhy this necessarily should be so. It may be that the Minister may notchoose to act, but there does not appear to be anything to prohibit thedeportation, under section 31 (1) (d), of persons who fall within any ofthe classes of persons categorically mentioned in section 31 (1) (a) or (6)or (c). It is however unnecessary to specifically decide this point.
Mr. Suntfaeralingam went still farther and contended that the procedureprovided for the prosecution of an offender for illegal immigration wasused with the indirect object of getting information for deportationorders. He charged the Minister and the other officers, in particularthe police, with bad faith and with having abused the processes of thelaw to get evidence on which to deport the detenues. It had never beenthe intention of any one concerned to prosecute the detenues for illegalimmigration he said, but only an intention to covertly use that machinerywith the ulterior object of deporting the detenues. He characterized theentire proceedings commencing with the information said to have beenfurnished by the informant, up to the ultimate confession of the policeofficer to the court of the insufficiency of the evidence for the successfulmaintenance of the charges of illegal immigration, as a mere mockeryand a sham and a “ fraud on the statute ” entitling the court to gobehind the deportation orders and tear asunder the veil which concealedthe ugly episode and penetrate into the true motives which underlay thefarce which culminated in the Deportation Orders. He accused them allnot only of want of good faith but imputed to them “ malice in law ”as well as “ malice in fact ”. He would not content himself with allegingc: malice in law ”, which according to the dictum of Lord Haldane inShearer v. Shields 1 is nothing more than an assumption that a person whoinflicts a wrong or an injury upon any person in contravention of thelaw is taken to have done so knowing the law, although so far as the stateof his min 1 was concerned he may have acted with innocence and withoutany intention to inflict that wrong or injury. Indeed it would haveavailed the petitioner’s purpose only a little were he able to establishmerely malice in law, for that would not involve the indirectness ofmotive required to be demonstrated before a Court would go behind thewrit or warrant of commitment. He therefore had to rely on “ malice infact ” both in the Minister and other officers who had been engaged in thevarious steps which ultimately resulted in the Deportation Ordersbeing made. The direct imputation of malicious intent was levelled atthe police officers and vicariously at the Minister of Defence and ExternalAffairs, the Right Hon. D. S. Senanayake, who in that capacity has signedthe Deportation Orders, malice in his subordinates being referred to and .imputed ultimately to the Minister.
1 (1914) A. C. 808.
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There can be no question that if those concerned acted in contraventionof the law, however innocent may have been their state of mind and freeof ulterior intention or motive, fhe detenues should be discharged.Except for the irregularity on the face of the Deportation Order, which Ihave already dealt "with, it was not contended that there was any otherex-facie defect or irregularity in the proceedings culminating in thedeportation orders which would have entitled the detenues to be forth-with discharged. What then is the “ malice in fact ”, which actuatedeither the Minister or those subordinate to him ? Mr. Suntheralingam wasnot able to refer to any personal ill-will by which any of the officers weremotivated. Tor all that one could gather from the whole scope of his-argument one got the impression of a suggestion that there was an under-current of desire, from the Minister downwards, to somehow ensure adeportation of any and everyone against whom there was the slightestsuspicion of being an illegal immigrant or of whose citizenship of Ceylon,under the Citizenship Act, there was the slightest doubt. Obviouslyany such alleged general desire cannot be regarded as malice in factagainst the particular detenues concerned in these applications. Norhas there been placed before the Court any evidence of any extraneous-circumstances, or any relationship between the detenues and anyoneconcerned in the steps resulting in the Deportation Orders from whichone could infer any motives of revenge, or any intention to seek satis-faction for any personal grievances either between the officers and detenues-or between the detenues and any third parties sheltering behind thesepublic officers to whom the latter lent themselves and their powers forthe satisfaction of any personal revenge or spite of those behind thescenes. The plea of “ malice ” therefore fails and so it is unnecessaryto consider whether if malice had been proved in fact, the Court can go-into the question as to whether the Deportation Orders and the conse-quent arrest and detention of the detenues had been justifiably made-
In the case of An Application for a Writ of Habeas Corpus re ThomasPerera x, it was held by this Court that its powers to issue writs of habeascorpus were conferred by the Courts Ordinance and that these provisionsare founded upon English law in consequence of which it would be help-ful to refer to the law of England on questions relating to habeas corpus-proceedings.
The Bracegirdle Case- was also referred to by both sides. There theAttorney-General contended that the Courts had no authority to inquireinto the circumstances under which an Order of Detention was issuedby His Excellency the Governor under the Order-in-Council of 1896.Chief Justice Sir Sidney Abrahams pointed out the danger (if the argu-ment was sound) to the fundamental principle of law enshrined in MagnaCarta (that no person can be deprived of his liberty except by judicialprocess), and to the predominance of the rule of law which distinguishesthe systems of government prevalent throughout the British Empire.After examining the position his view was that the Court was under aduty to inquire as to whether the conditions which must be satisfied.
1 (1926) 29 1ST. L. B. 52.° (1937) 39 N. L. B. 193
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CHOKSY A.J.—SitdaJi Andy Asary o. Vanden Dreesen83
before the extraordinary powers given to an executive officer can beexercised, have been fulfilled. He sought support from the judgment ofthe Privy Council in a case where the Governor of Nigeria issued an orderrequiring a person of the country to remove himself from one part ofNigeria to another, and where the Privy Council reversed the decision of theSupreme Court of Nigeria which held that the judges of that Court had nopower to go into the question whether or not certain conditions that had to befulfilled before the Governor could issue such an order, had or had notbeen fulfilled. It does not go to the length of deciding whether, if thoseconditions had been satisfied, there was or was not sufficient materialon which the particular executive officer concerned.should have acted.In Iiiversidge’s Case1 Lord Atkin expresses the same view (at page 358)when he says that the duty of the Court is to see whether the conditionsof the power are fulfilled but that a judge has no further duty of decidingwhether he would have been of the same view, any more than if thereis reasonable evidence to go to a jury, the judge is concerned to decidewhether he would have himself come to the same verdict on such evidence.He points out that the Minister may have reasonable cause on the in-formation before him to believe that a person should be dealt with underhis powers. If so, no remedy in the Courts, either by an action for falseimprisonment or by way of habeas corpus, is available even though itshould subsequently be proved beyond doubt that the Minister’s informa-tion was wrong. It seems to me to be important to keep clearly beforeone’s mind the distinction between the fulfilment of the conditions whichare a pre-requisite to the exercise of the power on the one hand, andon the other, the sufficiency or otherwise of the material upon whichthe officer concerned has acted. Applying the principle to the presentcase the questions here would be : did the Minister have the power todeport; under what conditions could the power be exercised ; were thedetenues persons to whom Part VI of the Immigrants Act applied ; hasthe Minister purported to exercise the power of deportation given bythat part of the Act; is the Order of Deportation valid on the face of it ?In other words, the question is, has there been a competent exercise of alawful authority ? If there has been such, I do not think that the Courthas the power to go further and say whether the Minister had materialbefore him which a Court of law would consider sufficient for exercisingthat power. If the Court did that it would be virtually stepping into-the Minister’s place and exercising the power which the legislature hasentrusted to him.'
In Rex v. The Officer Commanding the Depot Battalion, R.A.S.C.,Colchester, Ex-parte EUiott- Lord Goddard, Chief Justice, said (at page379) “on an application for habeas corpus the Court does not go into themerits so far as the offence is concerned ”, which means, in terms of thiscase, that the Court on an application for habeas corpus does not go-into the question whether the Minister should or should not have “ deemedit to be conducive to the public interest ” to deport those detenues.To do so would be to go into the merits or demerits of the cases fordeportation. The proper forum for discussing the question as to whether
1 (1941) 3 AU England Law Reports, 338.- (1949) 1 A. E. R. 373.
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or not the Minister should or should not have exercised his discretionand used such administration powers in a given set of circumstances isParliament and not the Courts.1
Since the decision in Liversidge’s case there has been hardly any appli-cation for habeas corpus of any importance where the excursions of theLaw Lords into the subjective and objective realms of the mind are notrecalled. Sir John Anderson, the Home Secretary, issued an order ofdetention against Jack Perlzweig alias Robert Liversidge under theDefence Regulations which enacted that “ If the Secretary of State hasreasonable cause to believe any person to be of hostile origin or associations…. and that by reason thereof it is necessary to exercise control
over him he may make an order against the person directing that he bedetained. ” The question which was mainly discussed was whether thewords “ if the Secretary of State has reasonable cause to believe. …
in the context in which they are found, point simply to the belief of theSecretary of State founded upon his view of there being reasonable causefor the belief which he entertains or whether those words in the contextrequire that there must be an external fact which gives reasonable causefor the belief and one therefore capable of being challenged in a court oflaw. Four of the noble Lords were of the view that, in the context,and unencumbered by any leanings in favour of the liberty of the subjector otherwise, the words meant that it was for the Secretary of State todecide whether or not he had reasonable grounds ; in other words, thatthe condition was subjective and not objective. In this they departedfrom the view of Lord Atkin, who in a classical judgment, protested,though alone, against the subjective meaning contended for. Lord Atkinstated that he knew “ of only one authority which might justify thesuggested method of construction, namely the subjective test and notthe objective one, and that authority was only of Humpty Dumpty inChapter 6 of ‘ Alice Through The Looking Glass ’ ”. It is best to keepclear of any controversy where there is even the suggestion of so muchas a broken ankle and I therefore do not propose entering the lists andventuring to say whether Lord Atkin’s view that reasonable cause for anaction is just as much a positive fact as a broken ankle, is correct ; orwhether that observation is sufficiently countered by Lord Romer’s.-rejoinder that while it was perfectly true that the words “ if a man hasa broken ankle ” do not and cannot mean “ if a man thinks he has abroken ankle ” and that the regulation in question was not dealing withthe state of a man’s body but with the state of his belief or, in other words,with the state of his thoughts. It is sufficient to say that the words in theImmigrants Act take us more firmly into subjective realms than the wordsof the famous regulation in Liversidge’s case, as the words we have todeal with are “ where the Minister deems it to be conducive to thepublic interest ”, and not “ where there is reasonable cause for the Ministerto deem it to be conducive to the public interest ”.
It is interesting to note that it was admitted in Liversidge’s case that“ the Home Secretary could act on hearsay and is not required to obtainany legal evidence …. and clearly is not required to summon aperson whom he proposes to detain and to hear his objections to the1 (1950) Wade and Phillips on Constitutional Law, 276.-
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85
proposed order Viscount Maugham’s view was that there was no onusthrown on the Secretary of State who made the order to give evidenceto show that he had reasonable cause to believe that the appellantwas a person of hostile associations, &c. His view was that as the order onits face purported to be made under the regulations and stated that theSecretary of State had reasonable cause to believe the facts in question thewell known presumption omnia praesumuntur rita esse acta can apply andthat the order must prima facie—that is, until the contrary is proved—be presumed to have been properly made, and it must be taken that therequisite as to the belief of the Secretary of State was complied with.That action itself was for false imprisonment, but the principle is of wideapplication and is not peculiar to any particular class of action. In thatparticular case no affidavit had been filed on behalf of the respondent theHome Secretary setting out any of the circumstances leading to thereasonable cause for his belief.
The next case to be considered is Hex v. Governor of Brixton Prison,Ex-parte Samo.1 Samo was alleged to have fled from Russia, for politicalreasons, in 1900. He was arrested under the Aliens Restrictions (Consoli-dation) Order of 1914 but was set free upon habeas corpus on the groundthat the order was irregular and invalid as it had not been signed by theSecretary of State. He was however immediately rearrested upon aregular and valid order of the Secretary of State deporting him to Russiain consequence of which a further rule was issued under a habeas corpusapplication. The grounds upon which the order was challenged were,inter alia, that the regulation framed under the Aliens Restrictions Actof 1914 was ultra vires for Samo was never given any opportunity ofleaving the United Kingdom, and that as Samo had been released underan order of Court it was illegal to rearrest him on the same or similargrounds to those upon which he had been discharged, and that he havingleft Russia for political reasons ought not in any event to be deported toRussia but, if at all, to some friendly or neutral country other thanRussia. In opposition to the rule an affidavit was filed from the AssistantSecretary of the Home Office which stated that it was part of the comityof nations that undesirable aliens-should be sent back to their own countryand not to other countries. It was stated further that according toinformation supplied by the Police, Samo was a man with no regularoccupation, that he lived in a house which was the resort of thieves,bullies, and prostitutes, and that he was suspected of theft and living onthe immoral earnings of women. The Act and Regulations Tinder it hadreference to a state of war and the order was in fact made during thefirst World War.
It was argued for the applicant that the Deportation Order was badfor either of two reasons, firstly because the Regulation was ultra vires,or secondly because it was intended to make an improper use of the powersgranted to the Secretary of State. The contention that the Regulationunder which Sarno was dealt with was ultra vires was dismissed in thebriefest terms by Chief Justice Lord Reading. On the second point,namely, that it was intended to make an improper use of the powers '
1 (1916) 115 Law Times Reports, 608.
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granted, to the Secretary of State in that, counsel for the applicant sub-mitted, deportations should not be ordered unless the safety- of the realmwas in question and that nothing of that kind had been shown in the caseof Samo, who was, at most, simply an undesirable alien, and that if hewas guilty of any of the offences of which he was suspected Samo couldhave been dealt with by the Courts of England in the ordinary way butthat he could not be deported for any of those reasons, especially in theabsence of any suggestion that his presence in England constituted a■danger to the State, the Lord Chief Justice stated that in the event of theCourt being of opinion that there was a misuse of the extraordinary powersgiven to the executive the Court would be able to deal with the matterif the misuse was imminent and some act had been done with the intentionof misusing the powers. He was satisfied, however, that upon thematerials before him, he could not conclude that there had been anymisuse of the power. While the evidence against Samo was only evidenceof suspicion on the part of the Police and therefore evidence upon whichclearly no action could have been taken in the Criminal Courts, it appearedto the Lord Chief Justice that that was no justification for asserting thatthe Secretary of State was not entitled to get rid of Samo. He also■expressed the view that although in time of peace it might be an exag-geration to describe suspicion of a crime as a danger to the safety of therealm, nevertheless, suspicion may justify action during a time of warwhich would not be justified in a time of peace. The case is of importance,in that all the three judges made it clear that the Court has the power tointervene and prevent any misuse of the power of deportation. All■of them also made it clear that they were not going into many questionswhich had been raised and many matters which had been touched uponin the course of the argument, on which the Court was not called uponto decide, amongst them being the question raised as to the power of the■Secretary of State to send back to his own country an alien who hadsought refuge in England from some political offence which he hadcommitted, or which he had been suspected to have committed in hisown country. All three judges expressly refrained from expressing anyviews on what a Court would do if an attempt had been made, by theexercise of the powers conferred upon the Secretary of State by theRegulations, to compel a real political refugee to return to his native land.Mr. Justice Low made it quite clear that upon the material before himhe was not satisfied that Samo was a political refugee at all and he there-fore did not venture to forecast what his conclusion might have been ifthe evidence on that point had been full and satisfactory. Nevertheless,the principle was laid down that the Court would interfere if satisfedthat the power was being used for any purpose other than the one whichthe law had in contemplation in giving the power of deportation.
The question regarding the next step, so to speak, in a deportationorder under the Aliens’ Restriction (Consolidation) Regulation 1916,arose in Sacksteder’s case, Sex v. Superintendent, Cheswick Police Stationx.The Regulation there in question enacted that where an alien was orderedto be deported he may be detained in such manner as the Secretary ofState directs until the person to be deported could be “ conveniently1 (191S) 11S Lain-Times Reports, 165.
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conveyed to a place on board a ship about to leave the United Kingdom…. ” and while so detained shall be deemed to be in lawful custody.
The Home Secretary had given general instructions that any personnamed in a deportation order which was intended to be enforced imme-diately should be arrested and conveyed by ship from the United King-dom and that he should be detained between the time of his arrest andthe sailing of the ship selected for the passage. The Home Secretarymade an order for deportation in the case of the applicant who was aFrench subject of military age. He further directed that the order fordeportation should be immediately enforced in the case of the applicant.The appeal was from an order made by Lord Heading C.J., and Darlingand Low JJ., discharging a Rule Nisi for a writ of habeas corpus. TheCourt of Appeal considered it necessary to scrutinise carefully whetherthe requirements and procedure of the Regulations had been satisfiedand followed because the legislation under which the Secretary of Stateacted in the particular case did not appear to have as an objective thecarrying out of an agreement between England and one of her alliesduring the War by which Great Britain had agreed to place the subjectsof that country who were liable to military duty under the laws of thatcountry, within the jurisdiction of that country by the use of the Regu-lations in question ; but the object of those Regulations appeared to besimply to get rid from the United Kingdom of aliens whom the Secretaryof State thought it was not right to allow to remain. Lord JusticePickford stated it was not for him to say whether it was better in a caseof this kind (to fulfil a reciprocal agreement between France and Britainthat- each country should return to the other country persons subjectto military service) to obtain direct authority to do what was wanted,or to take advantage of indirect means when there is no direct authorityfor doing it, if the indirect means would enable one to attain the sameobject. That, he said, was for the Government to consider. TheCourt was satisfied that' this deserter from the military service of Francewas not dealt with under a general order of deportation and tranship-ment without separate and individual consideration of the circumstancesof each case by the Secretary of State himself. Lord Justice Pickfordwas not prepared to go behind the order of deportation and tranship-ment although he stated that while he was not prepared to go as faras Low J. was inclined to go in Sarno’s case, yet if the Lord Justice wassatisfied that the deportation order was “ practically a sham, if thepurpose behind it is so illogical as to show the order is not a genuine orbona fide order, the Court could go behind it ”, although he was notprepared to say that in every case where there is an order of detentionnr imprisonment the Court is entitled to go behind that and see what themotives were for making that order. He did not think the fact of themotive being to carry out the agreement between Frace and Britain wassufficient to show that the order of detention until the applicant couldbe put upon some ship going to France was enough to entitle the Corutto say that the Order was invalid and that the custody was not a goodcustody. Lord Justice Warringtom also expressed himself in verysimilar terms except that he added that though on the face of it the ordermay be a valid one yet the Court would be entitled to go behind that
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valid order and say that it was no order at all, if it were a mere shamto cover up something which would be illegal or to enable some subse-quent act to be done which would itself be illegal. What happened afterthe ship left the shores of Britain was not a matter which would concernthe authorities in Britain. The Lord Justice did not think it was necessaryfor the Court to consider what may have been the ultimate motive withwhich the Secretary of State made the order. Lord Justice Scruttonprefaces his judgment by expressing the hope that His Majesty’s Judgeswill always give the same anxious care as he had given to the particularcase, to cases where it was alleged that the liberty of the subject had beeninterfered with, and none the less because the person is not by birth,or naturalisation, a subject of the King, but a foreigner temporarilyliving within the King’s protection. At the same time he made it clearthat there was not much room for sympathy in the particular case as theapplicant was a French subject who desired to avoid helping France inher time of national emergency. In the result, he contented himself withthe observation that the Court of Appeal had decided in an earlier casethat the Court is not a Court of Appeal from the Secretary of State inmaking an order for deportation, and that the Regulations gave thelatter power to select the ship on which the alien should be deported.So that whilst the Court in the earlier ease was of the view that theSecretary of State could not in terms make an order that an alien shallbe deported to a specific country yet he had the power to select the shipon which the alien may be placed, <£ and the result may be that, unlesshe jumps overboard, or manages to get overboard on to some othership, he will go to the country to which the ship on which he is placed,is sailing. That has been decided by the Court of Appeal and I ambound by it. ” That was the only comfort the applicant received at thehands of Lord Justice Scrutton. Happily it was not necessary for theapplicant to adopt the suggestion of that learned and noble Lord Justiceand consign himself to the tender mercies of the deep, because he offeredto serve in His Majesty’s armed forces, an alternative which relievedthe applicant from the dilemma in which Lord Justice Scrutton hadleft him.
Very great emphasis was laid by Mr. Simtheralingam on VimlabaiDeshpande’s case : Vimlabai Deshpande v. Emperor 1. Desbpah.de wasdetained in Police custody under the Defence of India Rules. He wasarrested by the Police (under the ultimate orders of the Deputy Inspector-General of Police) and placed in Nagpur jail. He was detained in policecustody later from 21st August, 1944, and on the 26th August the Provin-cial Governor made order that he should remain in police custody for theremaining period of 15 days during which he could be so detained, on theground that the particular police officer who arrested Deshpande “ reason-ably suspected Deshpande of having acted or of acting or of being aboutto act in a maimer prejudicial to the efficient prosecution of the war' Counsel retained by Deshpande’s wife to appear on an application forhabeas corpus made by the wife, were not allowed to interview Deshpandewhile in police custody on the ground that he was confined under theDefence Regulations and that in those circumstances he could not be1 (1945) A. I .R. Nagpzir 8 ; and A. I. R. (1946) P. O. 123.
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allowed to see anyone. Deshpande was an Advocate of the High Courtof Nagpur and was an editor of a Marathi Weekly. One Inamdar wasemployed as a clerk in the office of the press where Deshpande’s weeklypaper was printed. Inamdar left the services of the press in 1944 andit was not till August 1944 that the police busied themselves by surround-ing the residence of Deshpande searching his house and the office of thepress, and then requested Deshpande to attend at the police stationwhere he was interrogated and arrested and put in the lock-up. He wasnot informed why he was arrested nor was he told what the chargeagainst him was. The High Court was satisfied that the search, arrestand detention were in connection with inquiries which the Bombay policewere making in the course of an investigation into offences of dacoity,and the actual enquiries regarding Inamdar which were made fromDeshpande suggested an inference that the police suspected Inamdar andthat they further suspected that Inamdar was harboured in the officeof Deshpande’s weekly. The Court pointed out, in unmistakable terms,that the provisions relating to detention contained in the Defence ofIndia Rules related to detention and to nothing else, and that if eitherthe police or the Provincial Governor desired to investigate into anyoffence, whether under the Penal Code or under the Defence of IndiaRules, then they were bound to conduct their inquiries in accordance withthe provisions of the Criminal Procedure Code and that neither of theseauthorities could use the powers of detention under the Defence Rulesfor this purpose and under the guise of exercising those powers conduct asecret investigation into a crime. The Court emphatically expresseditself of the view that if the powers of detention given by the DefenceRegulations were utilised not for their legitimate purposes but in orderto assist the Police in an investigation which had nothing to do withanything contemplated by the Defence Regulations but which relatedto crimes committed against the ordinary laws of the country, such ause of the powers under the Defence Regulations was “ a fraud uponthe Act ” and that such action cannot be said to be taken in good faith.
In the present instance there has been no use of the powers of theMinister under the Immigrants Act for any collateral or indirect purposeDeshpande’s case therefore does not help the petitioner. The case ofMetacalfe v. Coxx was relied on for the proposition that if a personexercises power conferred on him, in bad faith or for a collateral purpose,it is an abuse of the power and “ a fraud upon the statute ”, and is not-really an exercise of the power at all, and a Court can interefere with sucha colourable exercise of the power and where an issue is raised whetherany particular order has been made in bad faith or for a collateral purposeand therefore not made in exercise of the power, the Court is bound toinquire into the facts. In the case of In re Banwarilal2 the Court heldthat the Order made by the Provincial Governor superseding the HowrahMunicipality under the Defence of India Rules was invalid because itwas made for a purpose not contemplated by the Defence of TVidia. Actor Rules framed thereunder- That was clearly an instance where theCourt would interfere because a power, intended to-secure a particular1 (1895) Appeal Cases, 328.2 48 Calcutta Weekly Notes, 766.
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object, wag used to secure another object not within the contemplationof the law giving that power. The Court specifically stated that if apolice officer were to detain an accused or a witness supposed to beacquainted with material facts, under the Defence of India Rules inorder that he may have the facility of carrying on an investigationunhampered and unrestricted, that would be an abuse of the powerconferred by the Defence Regulations. The second proposition culledfrom Metacdlfe v. Cox that the Court is bound to inquire into the factswhen the issue is raised that any particular order has been made in badfaith or for a collateral purpose means, I presume, as Lord Wright putit in Green's Case “ until there emerges a dispute the facts into whichthe Court feels it should inquire, I think the defendant’s statement isenough …. Lord Justice Goddard expressed the same point of
view when he said in Green's case that where an order which is valid onthe face of it is produced “ it is for the prisoner to prove the facts necessaryto contravert it, and that where all that the prisoner says in effect is‘ I do not know why I am interned, I deny that. I have done anythingwrong ’ that does not require an answer because it in no way shows thatthe Secretary of State—within the words of Regulation 18b—had notreasonable cause to believe …. ”. In Deshpande’s case too, the
Court expressed the view that where the good faith of the authorities wasexpressly challenged by facts being set out which, if unrebutted and un-explained, were sufficient to support the allegation, then the completeabsence of any refutation of those facts and the failure to explain themwould lead the Court to conclude that the orders were not made in goodfaith, that is to say, that the object was not to legitimately carry out thepurpose of the statute but to use the powers given by the statute forsome indirect purpose, and that in such a situation the use of the extra-ordinary powers is unjustifiable—Maledath Bharathan Malyali v. Commis-sioner of Police.2It would therefore be seen that facts must be set forth
which make it apparent, ex facie, that the powers were being used notfor their legitimate purpose but for some purpose for which the powerswere not intended. In other words, if it appears that the detainingauthority, instead of directing its mind to the objects of the statute andutilising the extraordinary powers for the purposes contemplated by thestatute, has used those powers of arrest and detention, indirectly, or shallI say under cover of the statute, to achieve or facilitate some otherobject or purpose, beyond or outside the scope of the statute or has beeninfluenced by considerations extraneous to the statute, to use those powers,then the arrest and detention are bad and the person affected by thatarrest and detention must be forthwith released and discharged.
I have already dealt with the various allegations made, and the groundsUrged in support of the Applications, and it seems to me that they do notdisclose any such misapplication or misuse of the powers vested in theMinister of Defence and External Affairs as to justify my holding thatthe arrests -and detentions under- the Deportation Orders are ‘ ‘ a fraud uponthe statute ”, or are otherwise illegal or invalid. The petitioner has not,' in my view, made out a prima facie case that -the Deportation Orders, orthe arrests and detentions under them, as on and from the 9th October,
1 (1941) 3 AU England Reports, 388.2 (1930) A. I. R. Bombay, 202 (F. C.)
de Mel v. de Mel
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1951, were motivated by any collateral or indirect or improper purpose.Whether or not it can be said that the earlier arrests and detentionscommencing from the 6th September 1951, and terminating with thedischarge of the detenues by the Court on the 9th October, 1951, on theapplication of the respondent, -were made legitimately and bona fidefor the purposes of and with the intention of prosecuting the detenuesfor illegal immigration is a matter on which. I express no viewwhatsoever because we are concerned, on the present Applications,only with the arrests and detentions which were effected on and fromthe 9th October, 1951, onwards after the detenues had been dischargedfrom the proceedings in the Magistrate’s Court. One cannot, on theseApplications for habeas corpus, deal with a custody which had terminatedbefore these papers were filed.
On the question of ultra vires I would follow the ruling in Muda-nayake v. Sivagnanasunde ram.l.
X therefore dicharge the rules nisi issued on the respondent and dismissthe several Applications with costs. There will however be only oneset of costs in respect of the arguments which took place in Court on the3rd, 4th, 5th and 6th December last, and in respect of any appearancesin connection with the applications for bail in these proceedings.
In conclusion, I would like to add that the preparation and deliveryof this Order were withheld by me pending the hearing of twenty otherhabeas corpus applications where many of the matters of law arguedon the present applications were also raised, in the hope that furtherlight may be thrown on them. Those applications were, however,disposed-of by me on the 23rd January last after hearing argument,on grounds which made it unnecessary for the points covered by theseapplications to be argued in those cases.
Rules discharged.
e-