023-NLR-NLR-V-58-A.-JOBU-NADAR-Petitioner-and-E.-J.-GREY-Inspector-of-Police-Fort-Respond.pdf
^956Present: T. S. Fernando, J.
JOBU N'.ADAR, Petitioner, and E. J. GREY (Inspector ofPolice, Fort), Respondent
..S’. c. 7S1I.V THE .MATTER OF AX AlTLICATIOX FOR A MANDATE JX THE
NATURE OF A WRIT OF HABEAS CoRFUS UNDER SECTION 45 OF THECourts Ordinance for the production ix Court of the bodv ofPedru.vadar Yethaxayaoam jrADAn of Xos. 1G1 and IG2,Main Street, Mixuwaxgoda.
JDeportal ion Order—I’oircr of Court to inquire into its reasonableness—KJJect of words" ‘/cents it to be conducive to the public interest ”—Power of Minister to electbetween Deportation Order and Removal Order—Immigrants and KmigrantsAct, .Vo. 20 of 19-lS,ss. 2S, 31, 43—Amending Act, .Vo. 1G of 193-5—HabeasCorpus Application—Duty of respondent to justify detention.
When the Minister of Defence and External Affairs makes in good faitha Deportation Order against a person under section 31 of the Immigrants amiEmigrants Act on the ground that he deems it to bo conducive to the publicinterest to make such deportation order, it is not open to a Court of law toinquire into the reasonableness of the Order and decide that the Order is invalidbecause the Court does not deem the making of tho Order to be conduciveto the public interest.
The Minister may make a Deportation Order under section 31 of the Immi-grants and Emigrants Act when lie deems it to bo conducive to tho publicinterest to make it, not withstanding that a llemoval Order can also bo madeunder section 28 of the Act against the person concerned.
Upon an application for a writ of habeas corpus, the production by therespondent of an order, warrant of commitment or other document valid inlaw justifying the detention that has been challenged is a sufficient answer.
PPJL.ICATTOX for a writ of habeas corpus.
Izadeen Jfohamed, with K. C. Kamalanaihan and S. C. Crossetle-Thambiah, for the petitioner.
8. P. X. Graliaen, Q.C., Attorney-General, with JI. Tiruchelcam,.Doputj- Solicitor-General, and II. L. de Silva, Crown Counsel, for therespondent-.
Cur. adv. vult.
•September 14, 1950. T. S. I’erxaxdo, J.—
At the conclusion of the argument in this matter I made order dis-charging the rule and dismissing the application with costs and indicatedthat the reasons for that order vill be set down later. I now state belou-the facts relevant to my order and the reasons therefor :—-
The petitioner Mho alleges he is the employer of Pedrunadar Vetha-nayagam Xadar, an Indian national, seeks the release of the latter fromthe custody of the respondent u'ho is detaining him under the authorityof a deportation Order made b}- the Minister of Defence and ExternalAffairs under the poucr vested in him by section 31 of the Immigrantsand Emigrants Act, Xo. 20 of 194S. It is admitted that such a deporta-tion Order has been made. Section 31 referred to above enacts that the
Minister may make a deportation Order “ where the Minister deems ii‘to be conducive to the public interest to make a deportation Order ” against-the person mentioned in the Orde-r requiring him to leave Cej'lon and to-re main thereafter out of Ceylon. Very similar words appear in para-graph 1 of Article 12 of the Aliens Order, 1919, of the United Kingdomtinder which " the Secretary of State may, if he deems it to be conduciveto the public good ”, make a deportation Order requiring an alien to leaveand to remain thereafter out of the United Kingdom. This paragraphwas the subject of judicial interpretation by Lord Reading, C. J., in thecase of The King v. Inspector of Leman Street Police Station, c.v parte1'enicojf, who stated that it was not for the Court to pronounce whetherthe making of the Order was or was not conducive to the public goodand that Parliament has expressly empowered the Secretary of Stateas an executive officer to make these orders and has imposed no condi-tions. Again, in the case of Point of Ayr Collieries, Ltd. v. Lloyd-GeorgeLord Greene, M. R., called upon to interpret the following wordsappearing in regulation 55 (4) of the Defence (General) Regulations,
“ If it ajipears to a comp>eient authority that in the interests of thepublic safety, the defence of the realm, or the efficient prosecution oFthe war, or for maintaining supplies and services essential to the lifeof the community, it is necessary to take control on behalf of HisMajesty of the whole or any part of an existing undertaking …. ”
stated that “ if one thing is settled bc3*ond t-lie possibility of dispute,it is that, in construing regulations of this character expressed in thisparticular form of language, it is for the competent authority to decideas to whether or not a ease for the exercise of the powers lias arisen.”In the course of interpreting very similar words appealing in regulation51 (1) of the same Regulations, the same learned judge observed in the caseof Carl Iona, Ltd. v. Commissioners of Works 3 that '' Parliament, which,authorises this regulation, commits to the executive the discretion todecide and with that discretion if bona fide exercised no court caninterfere. All that the court can do is to see that the power whichit is claimed to exercise is one which falls within the four cornersof the powers given by the legislature and to see that thosepowers are exercised in good faith. Apart from that the Courts have nopower at all to inquire into the reasonableness, the policy, the sense orany other aspect of the transaction ”. In the course of an exhaustiveexamination of several relevant authorities, Choksy, A. J., in the localcase of S-udali Andy Asary v. Vanden Drccsen 4 which arose over a deporta-tion Order made under the same section 31 of our-Immigrants and Emi-grants Act, stated that if there has been a competent exercise by the-Minister of a lawful authority the Court lias no power to go further andsay whether t-lie Minister had material before him which a Court of lawwould consider sufficient for exercising that power. In the light of theabove and several other authorities which have considered the meaning ofprovisions worded in much the same way as the relevant part of section.
31 of our Immigrants and Emigrants Act, Xo. 20 of 194S, it is impossible
to contend today that the Minister of Defence and External Affairs inmaking a deportation Order under section 31 of the Act is acting in anyother capacity than that of an executive officer or that a Court has anypower to decide that the Order is invalid because the Court does notdeem the making of the Order to be conducive to the public interest.There is no authority in law for the substitution of the decision or dis-cretion of the Court in place of the decision or discretion of the Minister.Learned counsel for the petitioner conceded that-, if the Order was onewhich the Minister had power to make, it was not possible for him, in thepresent state of the ease law, to contend that it was open to the Courtto enter upon an inquiry whether the Order was one which should havebeen made in the circumstances of this case.
– Upon an application for a writ of habeas corpus the production by therespondent of an order, warrant of commitment or other documentvalid in law justifying the detention that has been challenged is a sufficientanswer. The question was considered in the case of i?. v. Home Secretary,ex parte Greene1 where Goddard, L. J., citing from earlier eases, statedas follows :—
“If a person committed by order of a court apiJlies for a writ, andon a return, or, in accordance with the modern practice, by an affidavitshowing cause, the gaoler produces an order of commitment regular onits face and showing that the prisoner was committed for matter withinthe authority of the court, the court to which the application for thewrit is made, not being a court of error or of appeal, cannot entertainthe question whether or not the authority has been properly exercised ”.
In the same case, Mackinnon, L. J., stated that “ on an application forhabeas corpus, the gaoler or other person detaining the applicant mustjustify the detention. In an ordinary case, that is done by producing alegal order directing it. In this case, that must be a valid order of theHome Secretary issued pursuant to the Order in Council. The pro-duction of such an order in proper form would justify the detention,and prima facie would bo conclusive ”.
Hot only has the making of the deportation Order been admitted bythe petitioner, but he has actually annexed to his application to this-Court a copy of the Order. I would therefore, subject to. the examina-tion of an argument addressed by learned counsel that a valid deporta-tion Order could not have been made in the circumstances of this case,,have been prepared to say that a sufficient answer to the applicationappears on its very face. It is however unnecessary to consider this-aspect of the matter in view of the affidavit of the Minister of Defenceand External Affairs that has been filed in Court on behalf of therespondent in which appears the following averment :—
“ On material placed before me I considered it to bo conduciveto the public interest to make a deportation Order against P. Vetha-nayagam Nadar and accordingly made order on 11th July, 1956, byvirtue of powers vested in me as Minister of Defence and ExternalAffairs in terms of section 31 (1) (d) of the Immigrants and Emigrants-Act, No. 20 of 194S.
{1941) 3 A. E. R. 104.
In the face of this affidavit and the admission on bclialf of the petitionerreferred to above, it seems to me that it is impossible to contend that thedetention that Iras been challenged in this case is unlawful.
1 Learned counsel for the petitioner has, however, contended that adeportation Order under section 31 of the Act is totally inapplicable inthe case of Yetlianayagam Nadar. To appreciate the argument it isnecessary to state certain relevant facts. It is admitted that Vctha-nayagam Nadar is neither a Citizen of Ceylon nor a person exemptedfrom the provisions of Part VI of the Act. He is therefore a person towhom Part VI will apply. A temporary residence permit valid for twoyears had been issued to him on 5th June, 1953 and, although he appliedfor a renewal of that permit, no renewal was granted. As a result of theamendments to the Act introduced by the Immigrants and Emigrants(Amendment) Act, No. 1G of 1955, the provision of law which conferredthe power to issue temporary residence permits has been repealed andsuch permits can now neither be issued nor renewed. He was requestedby the Controller of Immigration to leave Ceylon before the 10th Novem-ber, 1955. This date was later finally extended till 31st December,1955. The resulting position was that the stay in Ceylon of Vethanaya-gam Nadar after 5th June, 1955, or after the date on which the amendingAct No. 1G of 1955 came into force or, at any rate, after 31st December,1955, became illegal and he became liable to be prosecuted for committingail offence punishable under section 45 of the Immigrants and EmigrantsAct, No. 20 of 1948. He further became liable to have a removal Ordermade against him by the Minister acting under the powers vested inthe latter by section 28 of the Act. In the state of these facts, learnedcounsel for the petitioner submitted that every circumstance was presentenabling the Minister to make a removal Order under Chapter V of theAct, and he argued that, therefore, the making of a deportation Orderunder Chapter VI was totally inapplicable in this case. He went on toargue that Chapters V and VI of the Act were mutually exclusive andthat as all the circumstances requisite for the making of a removal Orderwere present, it was the duty of tlio Minister to make such an Order.As I understood his argument, he went so far as to say that as Vetlia-nayagam Nadar’s stay in Ceylon on and after 1st January, 1956, hadbecome illegal, the Minister had no option but to make a removal Order,and therefore the question whether his deportation was conducive tothe public interest did not arise at all for the Minister's consideration.
I am quite unable to agree with the contentions of learned counsel.While it may be quite correct that a- removal Order under Chapter V ofthe Act could have been made on or after January 1, 1956, in respect ofVethanayagam Nadar, I can find no good reason for reaching the con-clusion that the legislature left no discretion in the Minister in regardto the making of a removal Order under section 28. No reason has beenadvanced why the word “ may ” appearing in that section should not begiven its ordinary meaning. There may well be cases where the Ministerchooses not to effect the removal of a person notwithstanding that theperson is liable to be removed in terms of the section.
Moreover, what reasons have I to assume that the Minister in makingthe deportation Order under section 31 of the Act has deemed it to be
conducive to tlio public interest to deport Vethanayagam Xadar merelybecause ho has refused to leave after 31st December, 1955 1 There is nomaterial in this case for such an assumption by the Court and, as I havealready stated, there is no power in the Court to inquire. .As LordGreene, 31. It., stated in Point of Ayr Collieries, Ltd. v. Llyod-Gcorge(supra), “ YV'e do not know the facts, we do not know what matters mayhave impressed him (the 3Knister) and what matters of public interestmay have made it very desirable to do what he did ,… There-
may or may not have been facts of great importance of which the appel-lants do not know. I do not know; we are not told. There was no needfor us to be told ”. Assuming, as I must, that this deportation Orderwas made becau.se the 31inistcr deemed it to bo conducive to the publicinterest to make it, it is impossible for me to state that it could not havebeen made because a removal Order could also have been made againstthe person concerned. If either kind of Order (removal or deportation)could have been made against Yethanayagam Xadar the 3Iinister is theonly authority who had the power to decide which form of Order should,actually have been made.
Application dismissed-