016-NLR-NLR-V-65-FAWZIA-BEGUM-Petitioner-and-THE-OFFICER-IN-CHARGE-SLAVE-ISLAND-POLICE-STATION-.pdf
** SRI SKANDA RAJAH, J.—Fawzia Begum v. The Officer in Charge69
Slave Island, Police Station
1863Present: S?i Skanda Rajah, J.
FAWZIA BEGUM, Petitioner, and THE OFFICER IN CHARGE,SLAVE ISLAND POLICE STATION and another, Respondents
G. 865 of 1962—Application for a Mandate in the nature of a Writ ofHabeas Corpus in respect of the body of Seyado Ahamed Kabeerin terms of Section 45 of Courts Ordinance
Deportation Order—Form—Incapacity of Court of law to question reasonableness ofOrder—Use of English language for official purpose after December 31, 196(1—Permissibility—Immigrants and Emigrants Act (Cap. 351), ss. 6, 28 (2),28 (5)—Official Language Act No. 33 of 1956—Citizenship Act (Cap. 349),s. 12 (4) (6).
Where a Deportation Order under section 28 (2) of the Immigrants andEmigrants Act was made on October 12, 1902, in the English language andnot in Sinhala—
Held, that the Order wan valid although it was an official act.
Held further, (i; that the Order was valid although it was issued some daysafter the arrest of the person concerned and did not indicate the particularofficer who should make the arrest and detention or the particular ship inwhich the arrested person should be taken for removal from Ceylon.
(ii) that the reasonableness of a deportation order cannot be questionedin a Court of law.
APPLICATION for a writ of habeas corpus.
R. A. Kannangara, with L, 0. Seneviratne, for Petitioner.
V. 8. A. PvMenayegum, Crown Counsel, with Ian Wikramanayake,Crown Counsel, for 1st respondent.
Cur. adv. wit.
March 15,1963. Ski Skanda Rajah, J.—
This is an application for a Writ of Habeas Corpus made by] one FawziaBegum in respect of the body of her husband Seyado Ahamed Kabeer.
The following material facts emerge from the affidavits filed :—
On 1st July, 1958, Kabeer applied for a Residence Visa under the provirsions of the Immigrants and Emigrants Act and was issued with one whichexpired on 2nd September, 1959. Thereafter, on 19th December, 1959,he married the petitioner. In September, 1961, he applied to he registeredas a Citizen of Ceylon under the provisions of the Citizenship Act on theground that he was married to a Citizen of Ceylon by descent. Thisapplication was refused by the Minister of Defence and External Affairs in
70 SRI SKANDA RAJAH,Bomtm v.Tha OJftcsr m Ohargo,
Slaw Island PoUca Station
terms of section 12 (4) of the Citizenship Act No, 18 of 1948 as amendedby Act No. 13 of 1955. This feet was communicated to the Carpus byletter dated 26th May, 1962, sent by registered post. This letter, farther,pointed out that his residenoe in Ceylon after the expiry of the ResidenceVisa on 2nd September, 1959, was illegal and that he was given threemonths’ time to leave Ceylon. He, however, failed to do so and wasarrested on 5th October, 1962, and is detained at the Slave Island PoliceStation of which the first respondent, Sub-Inspector Solomonsz, is incharge and is a prescribed officer in terns of Regulation 61 of the Regula-tions made by the Minister of Defence and External Affairs under section48 of the Immigrants and Emigrants Act No. 20 of 1948 and publishedin Government Gazette No. 10,896 of the 24th February, 1956. The Perma-nent Secretary to the Minister of Defence and External Affairs issued thefollowing order on 12th October, 1962 :—
“ The Immigrants and Emigrants Act.
Order under Section 28 (2).
Whereas S. A. Kabeer being a person to whom Part V of The Immigrantsand Emigrants Act (Chapter 351) applies, has overstayed the periodspecified in this visa,
Now, therefore, I, Neil Quintus Dias, Permanent Secretary to theMinistry of Defence and External Affairs, being authorised by the Ministerof Defence and External Affairs under section 6 of the Immigrants andEmigrants Act (Chapter 351) to exercise, perform, and discharge thepowers, duties and functions vested in, or imposed or conferred upon,the said Minister by and under section 28 (2) of the said Act, do by thisOrder, direct any authorised officer or any police officer not below the rankof Sub-Inspector to arrest, detain, and take on board the first available shipthe said S. A. Kabeer and further direct the Master of that ship to removefrom Ceylon the said person.”
In view of the provisions of section 28 (5) Cap. 351 this order is finaland cannot be contested in any Court.
Section 12 (4) of the Citizenship Act (Cap. 349) provides that theMinister may refuse an application for registration on grounds of publicpolicy. Section 12 (6) further provides that the refusal of the Ministerunder sub-section 4 shall not be contested in any Court. It should bementioned that an application by way of Certiorari in respect of theMinister’s refusal to register this corpus as a Citizen of Ceylon was refusedby me.
Such provisions have bow construed strictly by the House of Lords,who, by a majority of three to two, thought the words too clear to admitof any exception (Smith v. Bast BUot Bttral District Councill).
(im) a.a. 7ss.
SHI SKANDA RAJAH, J.—Fawzia Begum v. The Officer in Charge, 71
Slave Island Police Station
The question for determination is whether at the time this applicationwas made the Corpus was in lawful detention.
It was submitted, on behalf of the petitioner, that each one of the'following constitutes an illegality and, therefore, the detention isunlawful:—
The deportation order was issued seven days after the arrest.
It was not addressed to any particular officer.
It does not indicate the particular ship on board which the Corpuswas to be taken for removal out of the Island.
It was made in English and not in Sinhala, the only official language.
It seems to me that the last of these submissions should receive firstconsideration ; for, the sustaining of it will eliminate the necessity toconsider the others.
Sinhala became the only Official language on and after 1st January,1961. The order made by the Permanent Secretary (set out above) is anofficial act. Therefore, it should have been in Sinhala. It being in Englishis contrary to law is the submission.
The Immigrants and Emigrants Act is in the English language. It isan Act anterior in time to the Official Language Act. The latter Actdoes not purport to amend any of the provisions of the former. Theproblem is in reality one of interpreting an enactment which is in English.Therefore, I find it difficult to accept the proposition that an order underan Act in the English language would be invalid if made in that language.
Besides, it cannot be said that the corpus has been prejudiced in anymanner by an order made in English, a universal language, with whichhe is more likely to be acquainted than Sinhala. In my opiniontherefore the last objection fails.
As regards objection (1) : Though the arrest may have been unlawfulin that it was anterior to the order in question, that order is sufficientlawful authority for detention because it directs any police officer notbelow the rank of Sub-Inspector "to …. detain .. . ” the
corpus.
As regards objection (2): I am unable to agree that the order shouldindicate the particular officer who should make the arrest and/or detainthe oorpus. To uphold this submission would mean that if Sub-InspectorSolomonsz is transferred to another station the detention would becomeunlawful.
Nor can I accept submission (3): To accept it would mean that thereshould be a ship available every time a non-citizen is arrested under theseprovisions.
72 SHI SKANDA RAJAH, -7.—JPautzwi Begum v. Tfo Officat in Charge,
Slave Island Pctiee Station
It was submitted that tbs corpus is a law abiding parson and has bsaaain residence ia Osykm from 19£1. Hte d^pcsrfcaiftOBL wiH leave his wifedestitute in Ceylon. Such a thing is shocking and contrary to naturaljustice.
This submission can best be answered by quoting The Eight HonourableSir Henry Slesser, 3?. C., sometime one of Her Majesty’s Lords Justioes ofAppeal, ” It shocks the modern conscience little that regulations wherebya Minister may detain a person …. are not challengeable in aCourt of law once the potentate has declared that he has acted reasonably,so that the writ of habeas corpus often provides only an occasion toenunciate the impotence of the court and the principle which deters itfrom action. It may be that the older device of the frank suspension ofthe Habeas Corpus Acts in times of emergency was a preferable procedure;at any rate it did not menace the status of the Court as grievously as havecertain recent decisions. The dissenting speeches of Lords Atkin andShaw in internment cases disclose a lingering reluctance in the minority ofThe House of Lords to declare that a Minister may detain persons, evenwhen British subjects, for reasons not publicly expressed.”—The Art ofJudgment (1962) at p. 62 under the title “ The Jeopardy of the Law ”,
For these reasons, I would dismiss this application. Under thecircumstances of this case I award no costs.
Application dismissed.