In re MARK ANTONY LYSTER BRACEGIRDLE

059-NLR-NLR-V-39-In-re-MARK-ANTONY-LYSTER-BRACEGIRDLE.pdf


In re Marie Antony Lyster Bracegirdle.
193
1937Present: Abrahams C.J., Maartensz and Soertsz JJ.
In the Matter of an Application for a Writ of Habeas corpusupon the Deputy Inspector-General of Police.
In re Mark Antony Lyster Bracegirdle.
Writ of habeas corpus—Order in Council of October■, 1896—Power of Governorto order a person to quit the Colony—State of emergency—AmendingOrder in Council of 1916—Power of Courts to inquire into conditionsto be fulfilled before the issue of order—Order in Council, October* 1896,s. III., 3.
The power given to the Governor under Article III., 3, of the Order inCouncil of October, 1896, to order any person to quit the Colony and,on refusal on the part of such person to obey the order, to cause him tobe arrested can be exercised only in a state of emergency contemplatedby the preamble to the amending Order in Council of March, 1916.^
The nature of the emergency would be a state of war or grave civildisturbance, real or imminent.
Per Abrahams C.J.—The Supreme Court is entitled to inquire whetherthe conditions necessary for the exercise of the power in the Order inCouncil have been fulfilled.
Held also by the Chief Justice that if the order of the Governor wasvalid, His Excellency could authorise the Police to effect the arrest.
HIS was an application for a writ of habeas corpus for the production
nrX of the body of Mark Antony Lyster Bracegirdle, who was detainedby the respondent on an order issued by His Excellency the Governorauthorising him to arrest the said Bracegirdle and to place him onboard a ship bound for Australia. The arrest was.made in pursuanceof an order issued by the Governor requiring Bracegirdle to quit theIsland within four days, an order which the latter refused to comply with.
Ilangakoon, K.C., A.-G. (with him Wijeywardene, S.-G., and Pulle,C.C.), for the Crown.—Mr. Mark Antony Lyster Bracegirdle is producedin obedience to a Mandate issued by Your Lordships’ Court. Readsaffidavit of Deputy Inspector-General of Police.
The authority under which he is held in custody is a warrant issuedunder the hand of His Excellency the Governor by virtue of the provisionsof clause 3 of Article in of the Order in Council of October 26, 1896,published in the Gazette of August 5, 1914, as amended by a later Orderin Council of March 21, 1916, published in the Gazette of June 5, 1916.By an order dated April 20, 1937, the Governor directed Mr. Bracegirdleto quit the Island on or before April 24, 1937. As that order was notobeyed, the Governor issued a subsequent order for the arrest and deport-ation of Mr. Bracegirdle. (Reads affidavit from the Secretary to theGovernor, Mr. E. R. Sudbury, stating that he was informed by theGovernor that the order was issued by him because he was satisfied on theinformation he had that circumstances had arisen which in the publicinterest made it necessary for him to act in that way.)
[Abrahams C.J.—What is the purpose ?]
It is merely to show that His Excellency had brought his mind to bearon the matter and that he had the necessary authority for making that
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order. My position, is that His Excellency has very wide powers givento him under this clause of the Order in Council and under the Order inCouncil as a whole, and he had full power to make the order in question.
[Abrahams C.J.—Are you going to contendi that we cannot inquire intothe reasons for the exercise of His Excellency’s powers ?]
That will be my submission. Your Lordships will see that the wordingof clause 3 is in clear and unmistakable terms. The position taken up bythe petitioner is, firstly, that the Governor can only exercise these powers .on the arising of an emergency, and secondly, that no such emergencyhas arisen.
[F. de Zoysa, K.C.—I do .not know whether the Attorney-Generalshould state his case and I should reply or whether I should state mycase first and the Attorney-General should reply.]
[Abrahams C.J.—The Attorney-General lias been asked to show causeand he is endeavouring to show cause. The person detaining the bodyhas to show cause why he is taking that course.]
The main contention raised by the petitioner, against the validity ofthis warrant is contained in paragraph 7 of the petition. ' With regard tothe averments in that paragraph my submission would be that thelanguage of clause 3, is perfectly clear, unambiguous and plain ; on aplain reading of the words of that clause, His Excellency had full authorityto make the two orders in question. A subsequent Order in Council datedMarch 21, 1916, amended the 1896 Order in Council in certain respects.The only reference to an emergency was in the recital of the Order inCouncil of 1916.
[Abrahams C.J.—This was not intended by Her Majesty in Council toremain a permanent addition to the Statute Book—was it ?]
It was intended that it should continue in operation and remain inoperation so long as it was not revoked by a. Proclamation issued by theGovernor declaring that it has ceased to be in operation.
The continuance of its operation therefore is not a matter we can gointo.
It is submitted therefore that the Order in Council came into operationon its Proclamation on August 14, 1916, and it has not ceased to bo inoperation, because no further Proclamation has been issued declaringthat it has ceased to be in operation.
[Abrahams C.J.—The whole of the Order in Council indicates thepurpose for which it was enacted. Anyone who reads it can appreciatethat it is a war-time measure or one to be used in time of grave civildisorder and that it is a complete restriction of the liberty of the subject.]It can also be brought into force on the apprehension of any danger-.[Abrahams C.J.—What sort of danger ?]
Civil disorder and apprehension of disorder.
[Abrahams C.J.—When was it last brought into force ?]
In 1914.
[Abrahams C.J.— That is during the war. That was a time of emer-gency when rapid action had to be taken to avoid disorder.]
That is a matter entirely in the discretion of the Governor. The lawremains in operation so long as it has not been revoked.
[Abrahams C.J.—I see. So we are all subject to military laws.]
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Uhe Governor is not likely to make an irrevocable order. Overridingpowers are given to a Governor, but if he abuse them he would be answer-able.
The liberty of the subject is a precious thing which all cherish, butthe rights of the subject must take second place to the safety of the State.The powers, duties, &c., of a Colonial Governor axe derived from hisCommission and Royal Letters Patent, Orders in Council, local laws, &c.,and a Governor cannot act contrary to the powers given to him. Ceylonis either a ceded or conquered territory, and, in either case, there is theright of the Crown to legislate for it. It is necessary that the supremepower should, subject to certain safeguards, be vested in a person, who isa trusted and experienced officer of the Crown. He is given Jthe fullestresponsibility for maintaining the peace and good government of theColony, subject, of course, to any restrictions in the various instrumentsrestricting his powers.
The elementary principle of Government is that the safety of the Stateis a matter of paramount concern and every other principle must giveway to the safety of the State. –
[Abrahams C.J.—But you say that the one body of men who caninquire into the liberty of the subject are precluded from doing so ?]
If there was any infringement of any private right or private liberty,which is seldom likely to occur, there is always an appeal to the Crownthrough the Secretary of State, and ultimately to Parliament. As towhether an emergency has arisen or not is a matter which cannot becanvassed in a Court of law.>
The Court will not investigate the circumstances in which actiori wastaken by the Executive. Certain authority is vested in the supremepower to come to a decision and take a certain line of action. The Courtwill not try to find out the why and the wherefore of acts which lead tosuch action being taken.
(Cites King v. Inspector of Lemen Street Police StationKing v. Governorof Wormwoods Scrubs Prison", and Rex. v. Holliday”.)
[Abrahams C.J.—That was a time of war.]
But soon after the war, there were certain powers given to the executiveas emergency powers.
[Abrahams C.J.—There never was any power .to' deport a Britishsubject. An alien has always stood under a different footing. Theremust be some very grave state contemplated before a British subject canbe sent away from a British possession.]
The Attorney-General referred to Halsbury, vol. VI., p. 501 and statedthat the executive was given the power to act in any state of emergency,but Parliament must be summoned to meet and consider whether therewas sufficient ground for such an order being put into force. Such asituation arose in the general strike when those powers were brought intooperation.
[Abrahams C.J.—It was the state of emergency that made the procla-mation to be issued and then action could have been taken. Here you have
• {1920) 3 K. B. 72.« {1920) 2 K.B. 305.
1 {1917) A. C. 260 ; Ex parte Zadig.
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a proclamation issued certainly at a time of grave national peril. Thattime vanished and it has not begun again ; but the Order in Council is stillin existence.]
It is not for us to conjecture what the reason is for continuing the Orderin Council in operation. We know that there are no other emergencypowers of that description given to the executive to meet situations ofemergency. There are certain provisions of the State Council (Order inCouncil) Article 49 which give the Governor emergency powers of a kind.
[Abrahams C.J.—If it was to be a permanent addition to the StatuteBook why should there be a proclamation both as regards bringing it intoforce and terminating it ?]
It is not intended to be on the Statute Book for ever—it is perhaps ameasure which should have been repealed, and, in the opinion of somepeople, should not be on the Statute Book.
[Abrahams C.J.—We know the office of Governor is a highly responsibleone but acts of Governors have been questioned.]
I am aware that they have been questioned both in Courts and else-where ; but, if a Governor is required to go into a Court in mattersconnected with the exercise of his powers of this description and givereason^ for the action he took, all the" damage will be done—that is why,the Courts will not inquire whether the exercise of the powers have beenproperly performed or what the grounds are for his decision. As towhether the Governor has acted with wisdom or not is a matter for whichhe will be answerable to the Secretary of State and through him toParliament. Where absolute powers are delegated to the executivethere is theoretically present the risk of abuse, but the legislature must bedeemed to have risked that chance. A Governor is presumed to actreasonably, honestly, and wisely. Those who are responsible for thenational security must be the sole judge of what the national security•requires. It is submitted that there is no justification for going outsidethe terms of the Order in Council of 1896, because they would be importinginto it other matters of which they had no certain knowledge. TheMagna Carta does not apply to Ceylon. The only English law that willbe in operation in Ceylon will be that which is brought into force by anAct of Parliament or an Order in Council or by our local law. (Counselcited King v. Amolis1.) It is submitted that the preamble of the Orderin Council of 1916 cannot modify the terms of the Order in Councilof 1896, because the law has to be construed according to the plain andliteral meaning of the . language used by the legislature. The preamblecan only be made use of for the interpretation of an enacting part if thereis any ambiguity in it. The preamble cannot restrict or modify clause 3.If the words admit of but one clear and distinct meaning then thelanguage cannot be controlled by the preamble.
[Abrahams C.J.—Why was the preamble inserted if it was not to beregarded ?]
If the intention of the legislature was in any way to restrict the powersof the Governor relating to deportation, there was no reason why that factshould not have been mentioned in clause 3 itself—the provisions ofclause 3 are so wide as to enable even a British subject to be deported.
1 11 L. R, 266.
In re Mark Antony L-yster Bracegirdle.
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The whole object of the power of deportation is to give power to takeaction to get rid of an undesirable before any serious emergency hasarisen. The legislature has allowed such a law to remain in force and itis not the duty of the Courts to inquire into it.
It is submitted that the Court will not call for reasons which justifythe executive in making an order of deportation. See King v. Secretary ofStates for Home Affairs„ ex parte Duke of Chateau Thierry ‘ where a FrenchDuke has been dealt with under the Aliens Restriction Act of 1916.
This order was in effect a sort of subsidiary legislation, because the Actof 1916 was itself made by virtue of the powers conferred under theImperial Act of 1914.
It was not a prerogative Order in Council: it_ was a statutory Order inCouncil which the King in Council was authorised to make by an ImperialAct. Our Order in Council of 1896, as well as that of 1916, is a prerogativeOrder in Council and vests the Governor with power to make an order ofdeportation in regard to any subject of this Island. In the case of aprerogative Order in Council, it is not possible to inquire whether hehad the power or not, because it must be assumed that he had the power.The power of the Courts to inquire into such a matter is itself derivedfrom the same source and the Court will not inquire into the reasons whythe King in Council gave the power to do those acts because, rightly orwrongly, that power has been given.
My submission is that the power having been given to the Governor, ifthe Governor has exercised it within the four corners of that power,Your Lordships’ Court will not inquire into the reasons why the Governorexercised his power under that order. (See the judgment of SwinfenEady L.JA) The Co.urt there held that it was not open to the Secretaryof. State to order a deportation to any particular country, but that hecould order a deportation to any country outside. It was held that theorder of deportation was valid and that the Secretary of State was notrequired to justify his action in a Court of law .The two points decidedwere, firstly, that the Secretary of State had the power to make thedeportation order and, secondly, that the person against whom the orderwas made was an alien. In this case, Your Lordships’ Court will thereforemerely inquire whether the person who made this order was the Governorand whether ….
[Abrahams C.J.—Can the Court in no case inquire into such an order?Is that your position?]
It can, but only to find out whether it is ultra vires or not; whether ftwas validly made by the person to whom the power was granted.
[Abrahams C.J.—And nothing beyond that?]
That is my submission.
These are wide powers even bordering on the arbitrary—althoughthe Order in Council was brought into operation on. the outbreak of the•war—when an emergency had actually arisen as a result of the outbreakof the war, yet it is hot contemplated that the Order in Council shouldcease to be in operation as soon as the war ended ; the Order in Councilitself states that it shall continue to be in operation until another procla-mation is issued repealing it.
1 {1917) 1 K. B. 922.* (1917) 1 K. B. 922. at p. 929..
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My submission on this point is that we are not concerned with thereason for the continuance of the operation of the Order in CouHbilalthough apparently tEe necessity for it has ceased.
My position is that the Order in Council remains in force until thereis a proclamation—a subsequent proclamation—repealing it. If theexecutive has taken action under it in circumstances not warranting suchaction, or without justification for it, then the executive will be answerableto the proper authority.
The point is not whether this is a bad law or not. The legislature hasthought it fit to vest a discretionary power in the Governor to deportpersons. It was so done in the confidence that he—the Governor—wouldin every case act honestly and fairly. The legislature has taken the riskof passing legislation of this description by reason of the paramountnecessity of safeguarding the interests of the public and the State. Inthe absence of any other legislation—as far as we are" aware of—it is not 'unreasonable to expect legislation of this description to be in existencegiving the executive very drastic powers to meet emergencies.
In paragraph 8 of the petition it is alleged that the arrest was illegal,that the Governor had not the power to issue to the Police an order for. the arrest of Mr. Bracegirdle, or cause the order to be served or executedIjy the Police.
May I draw Your Lordships’ attention to the fact that under theLetters Patent found in the Government Manual of Procedure, everybodyis required to obey and assist the Governor.
[Abrahams C.J.—The Governor might have told you or me or anybody.]
In every country arrests are entrusted as a rule to members of the PoliceForce.v
In reply to the Chief Justice as to the position of the Minister for HomeAffairs in relation to the Police, the Attorney-General stated that oh thispoint he would have briefly to survey the constitutional position of Ceylon.
[Maartensz J.—Has the Home Minister to give his consent to everyarrest?]
No.
[Maartensz J.—Then why in this case?]
There is no necessity.
[Abrahams C.J.—Suppose the Home Minister refused to permit thearrest of Mr. Bracegirdle what would be the position?]
The authority primarily responsible for the Government of this Islandis the Governor and the Governor is vested for the purpose of administer-ing the Island with various powers, duties, &c. The Police Departmentcomes under the Executive Committee • of Home Affairs and certainpowers are vested in that Executive Committee. A Minister in Ceylonis nothing more than the mouthpiece of his Executive Committee. Heis designated a Minister because, as Chairman of that Committee—he. iselected by the Committee—the Governor entrusts to him a portfolio andtells him “ You shall be my Minister”, and the Governor is the person towhom the Minister as such is responsible. There are, therefore, twodistinct offices which the Minister holds :
Chairman of the Executive Committee, and '
The Governor’s Minister under the Constitution.
In re Mark Antony Lyster Bracegirdle.
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In the Governor are vested certain powers and functions and under theCeylon (State Council) Order in Council—the basis of our present consti-tution—certain subjects and powers which used to be administeredby the Governor through the Heads of Departments, prior to the presentconstitution coming into operation were vested in Executive Committeesunder Article 32 of that Order in Council.
[Abrahams C.J.—A Minister means a servant. Cabinet Ministers inEngland are Ministers of the King. Who are the Ministers in Ceylon?]
They are also the King’s Ministers in a sense because they are requiredto take the oath of allegiance to serve the King.
[Maartensz J.—Is any arrest by the Police illegal if the consent of theMinister has not been obtained?]
I do not know what my learned friend’s argument will be on that point.
[Abrahams C.J.—You might first hear the arguments of Mr. Perera.]
H. V. Perera, K.C. (F. de Toysa, K.C., with him M. T. de S. Ameresekere,
H. Aluwihare, J. R. Jayawardene, and N. M. de Silva), for petitioner,submitted that his position was that there is a limitation of the exercise ofthe "bower by the Governor, and that under the present constitution theorder to arrest a person cannot be executed by the Governor without theconcurrence of the Home Minister, and that therefore it presumes a certainlimitation of power, assuming that the power exists in the Governor,and that the power must be exercised subject to that limitation.
Your Lordships will see that this is a matter vitally affecting theliberty of the subject and the rights of personal freedom and liberty.It has been said by Lord Eldon that with respect to the liberty of thesubject, the Courts are there to struggle .to secure it, while in this case itis sought to destroy it. (Cites In re Application of A. R. Shaw for a writin the nature of habeas corpus'.) The learned Attorney-General arguesthat as long as there is no proclamation withdrawing this Order in Council,that the Order in Council remains in force and that, as it reads, thepower given to the executive may be delegated to a Naval or MilitaryOfficer, and that the power could be used at the absolute discretion of theauthority exercising it in ordering any person at any time to quit theIsland, and if the latter failed to do so, he may be forcibly sent out ofthe Island. Quite apart from the purpose for which the power wasexercised any person could be driven away at any time merely becausehe was considered to be an undesirable. It is not pretended in this casethat this order was made because there was a state of emergency or thatsuch a state of emergency was imminent. The Governor in this casehas acted merely because that there was this power existing undersub-clause 3 of article III. empowering him to deport any person, for anyreason he considered reasonable, and which cannot be canvassed in' aCourt of law.
If there is such an unlimited power, unlimited by occasion, or bytime, then the liberty of the subject does not exist in Ceylon. My>contention is that it is limited by reference to purpose, occasion, and time.1 do not say, that the King has not the power to legislate in a Colony likeCeylon in spite of the fact that that power to legislate was given to the39/181 (1861} Hamanothan's Reports 1860-1861, p. 116
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'State Council. This is shown in the Dictionary case, Abeyesekera v.Jayatilaka1 where an Act of Indemnity was passed to indemnify an actcommitted by Sir D. B. Jayatilaka. I agree with the learned Attorney-General that unless there is an Act of Parliament which restricts thepower of His Majesty the King, his legislative powers cannot be questioned.Such an act is not necessary in the present case where there are otherlimitations in respect of taking away from British subjects certainfundamental rights.
It is submitted that the principles laid down in the Magna Carta applyto all British.subjects ; that the position of'a British subject is the sameanywhere in the Empire. So far as the general principles are concerned,all subjects owed allegiance to the King who had promised protection,certainly, in respect of the fundamental rights and liberties of the subject.It is a matter in which it can be argued that there is a limitation also onthe power of the King to legislate. In the Dictionary Case, the PrivyCouncil did not hold that there was no such limitation but that the actsof indemnity are of very frequent occurrence and that the King has thepower to indemnify persons who have committed a penalty ; but for theKing to take away the fundamental right of the subject would be contraryto principle.
My contention is not that this Order in Council is ultra vires but thatOne has to make such limitations as would not destroy the.fundamentalrights of the subject at all times. The King cannot make laws contrary tothe fundamental principles of the British Constitution, for instance, except-ing persons from the general laws of the country or granting exclusiveprivileges to certain individuals. And when a representative Governmenthas been granted to a Colony, the right to such legislation ceases exceptthat here in Ceylon certain matters are specially reserved. (Cites Con-stitutional Laws of England (1922), 3rd ed., p. 425.) A fundamental rightwhich is assured to every British subject as such has in this case been takenaway ; it destroys the link which binds the subject and the Sovereign—
– allegiance to the one and the protection to the other. In any constitution,in any law passed by His Majesty, one would not expect to find that itdestroys the fundamental rights of the subject. (Reads amending Ordi-nance of 1916). In this there is no reference to the execution of thatpower but the delegation of it to a Naval or Military Officer. The-learned Attorney-General argues that the Governor is not expected to actunreasonably, or in an unjust manner, but that in itself does not imposea legal limitation on his powers, or that he would not without just causemake such an order. In the same breath, says the learned Attorney-General, the Courts cannot inquire into it but in all cases we have hadto. deal with, there has been special provision to meet emergencies, orthreatened or imminent emergencies. If the power to act in such a wayas to interfere with the liberty of the subject is not circumscribed in anyway, then there will always be a limited form of allegiance and protection.It may be conceded that to some extent the King could think of legis-lation which modifies the right to personal liberty in circumstances whichwill not altogether destroy the right, but, if the power so conceded isunlimited in scope, as to purpose, occasion, and time, and the persohs
1 (1930) '33 N. L. R. 291.
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in respect of whom it can be exercised, then my humble submission isthat such a right cannot simply exist.
[Abrahams C.J.—Is it your contention that the Order in Council is nolonger in force ?]
I will argue it alternatively—that the law was brought into being at atime of emergency ; it does not exhaust all British Colonies but places ofstrategic importance—they may be bases for naval operation in times of war.
[Abrahams C.J.—r-The Order in Council distinctly states that it remainsin force until it is superseded by a subsequent proclamation that it isno longer in force. Do you say that it is in force but with modification ?]
One has, I submit, to look at the whole of it—not in the way the learnedAttorney-General interprets it by looking at one particular clause—which is not the way of interpreting any law—if the Governor allowedthe Order in Council to remain operative in Ceylon, it must be rememberedthat it was introduced at a time of emergency, to meet a situation thatmight be created from such an, emergency and the powers have to beinvoked in accordance with the circumstances which it was really intendedto meet. Whether the powers are unlimited or not, my contention isthat the power was conferred for one purpose and I say that powersconferred for one purpose cannot be used for another purpose—that is thefundamental principle in law governing the conferment of powers.
[Abrahams C.J.—What about the present case ?]
In the present case we are told that it was issued in the public interest—not at a time of emergency of which judicial notice can be taken.
[Abrahams C.J.—It has been suggested that the continued presence ofthis gentleman (Mr. Bracegirdle) might lead to unrest. And it is furthersuggested that we have no jurisdiction to inquire into this.]
My submission is that the Court has ample jurisdiction to inquire intothis matter ; and it is the duty of the Court to inquire into the questionwhether such a situation had in fact arisen or not.
[Abrahams C.J.—Supposing, that in consequence of certain inflamma-tory observations made by a person,- there was distinct evidence ofthere being unrest or bloodshed, do you still argue that such an ordercould not have been made ?]
In that case, the Court has to inquire whether there was such a dangerof unrest.
[Maartensz J.—May not the Governor act crn information receivedby him if it seemed to him that such a danger was imminent, and that thesituation could be saved by the removal of that particular person ?]
The power does not exist to be exercised by the Governor unless thereis an emergency, and the Courts have the power to inquire whether sucha situation had in fact arisen or not.
[Maartensz J.—Is it not for the Governor to decide whether there issuch an emergency? ]
No, I submit.; it is for the Court to decide.
[Abrahams C.J.—Your position is that the Governor has not the powerto issue this proclamation unless there is a state of emergency and he hasnot the power to give effect to the terms of this Order in Council unlessthat emergency exists ?]
That is so.
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It is submitted that the fundamental right referred to was secured fromprinciples set out in the Magna Carta and that it did apply to the extentthat it was applicable “with regard to the rights which are enjoyed byBritish subjects in any. part of the Empire. If there wds no limitation aslong as that Order in Council remained in force since 1916. no Britishsubject in Ceylon enjoys the fundamental right of British freedom. Iwould draw your Lordships’ attention to the implication of the argumentof the learned Attorney-General that so long as it was in force, there wasno right of personal liberty in Ceylon. Therefore, there is a very strongpresumption that Her Majesty never intended that this Order in Councilshould be in force whether there was war or not. He does not argue thatthe Order in Council is ultra vires but his submission is that the order isone that must be construed with due regard to fundamental rights.
It is submitted that the Order in Council did not enact any generallaw, but it only conferred certain powers on the Governor to makeregulations. The old clause 3 (1) was repealed in 1916 and there wasa substituting sub-clause 1 (a) put in. The old clause 3 (1) did notconfer powers on the Governor. It was a time of war and one can wellunderstand such an order coming into force. It is a fundamentalrule in construing powers granted by law to_ have regard to the pur-pose for which those powers were conferred. The powers cannot beunlimited. If the powers conferred for one purpose are used for anotherthe Courts can inquire into it. (Cites Maxwell (7th ed.), p. 71.) Ifone reads the provisions of the Order together, one comes to the con-clusion that they were powers undoubtedly intended to be usednot at all times but under special circumstances. A state of emergencymust exist, and the Court will find out not what the degree of emergencyis, but whether there is an emergency. (Cites a case reported in the" Citizen ”, Straits Settlements, also cites Application for writ of habeascorpus for the production of the body of W. A. de Silva *.) As in the case ofthe Parliament, when a law was enacted by Her Majesty in Councilgiving the Governor great powers, there would also then be suchlimitations.
[The Chief Justice drew the attention of Counsel to a Privy Counciljudgment in a Nigerian case—Eshugbayi Eleko v. The Officer Administeringthe Government of Nigeria ~—where a Native Chief was ordered by theGovernor to leave a particular area ; the Native Chief applied for a writof 'habeas corpus on the ground that the circumstances in which the orderwas issued did not apply to him.]
Your Lordships will see that in that case power was expressly given tothe Governor to deport the Native Chief after he had been removed fromoffice. And in that case, the petitioner questioned both orders—theorder to leave—and the order of arrest, on the grounds that he was not aNative Chief and did not hold office and that he was not deposed fromoffice, and that, therefore, the Governor’s order was illegal. The Courtrefused to go into the definition' of the term “ native chief ” which wasgiven rather a loose definition …. the case is helpful in that it1 was held there that the Court had the power to inquire into the condi-tions precedent to the issue of the order. (Reads extracts from the judg-ment.) If the Governor acted purely for some private reason, pretending
» (1915) 18 N. L. ft. 277.- (19-31) Appeal Cases G62.
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to act in the public interest, then it will be the duty of the Court to draw offthe mask and reveal reality. It may well be an honest mistake ….
[Abrahams C.J.—You are distinguishing between abuse and misuseof powers ?]
That is so. If there is a condition precedent to the exercise of a power—either expressly stated or by necessary implication—then the Court caninquire whether that condition precedent to it existed at the time theorder was issued. As I submitted, an order might be issued not in thepublic interest but in the private interest—as a result of perhaps somerivalry between the executive officer and someone else, and it might beproved that such an order is not in the public interest. My contention isthat the* Courts have the power to find out whether the Governor directedhimself properly to the question. I referred to the fact that these powerscould be delegated to a Naval or Military officer; such a delegationbecomes necessary only in time of war and not in time of peace. It isclear, therefore, that this clause was meant to be used only in time ofwar. It is palpable and apparent on the face of it that these powers arepowers to be used only at certain times and for certain purposes. Asstun-ing that in Ceylon a person goes about making speeches which are cal-culated to be detrimental teethe prestige of a certain section, will it comeunder this Order in Council ? Is such an order necessary as a measure ofsecurity ? If the expression which occurs in the preamble to the second. Order in Council is to be considered, then the question arises as to whethera state of emergency existed at the time the order was made. On thequestion of the liberty of the subject, Mr. Bracegirdle is an Englishman;and he is fully entitled to the measure of protection to which an English-man in England or anywhere else would be entitled. (Refers to theArticles of Capitulation, 1796). One of the terms is that the subjects ofCeylc.i shall enjoy all the liberties and privileges of Her Majesty’s subjects.The Courts have played no small part in establishing the liberty of thesubject and the final place where these matters are investigated .are theCourts. With regard to the existence of the rights, obligations, duties- and powers, the Courts are the last Tribunal of Appeal. The Court hasthe power to investigate^the question and say “ Well, they have actedlegally ”, and there the matter ends. The Court has the power toascertain whether such an order was made because it was deemed to be forthe public good or for any other reason. If the Court is satisfied that theorder was made because the Secretary of State deemed it to be for thepublic good, then, of course, the Court cannot go beyond that.
[Abrahams C.J.—Supposing a person came forward and filed anaffidavit stating that he is prepared to show that an order issued on himwas not for the public good but for private reasons, has the Court thepower lo inquire into it ?]
My submission is that the Court has the power to inquire into theaffidavit which has to be answered. Let us take a case where a mansays he knows certain things about a particular individual and that heis about to expose that individual, and so an order of deportation has-beenissued on him, is not the Court going to inquire into it ? Powers aregiven to be used for certain public purposes and if they are used forprivate purposes, they can be questioned. My submission has been that
204
In re Mark Antony Lyster Bracegirdle.
when a power is granted for one purpose, even the bona fide use of it foranother purpose is an abuse of that power. The recital in the preamblecontrols the whole situation. What we are really concerned about hereis whether the power has been legally used in this case.
If as the learned Attorney-General contends, the Order in Councilgives unlimited power to the Governor to deal with persons in that way,what was then the necessity for a specific mention of clause 3 in this.Ordinance? The affidavit states that theGovernor acted because hethought it is in the public interest to make that order. There was nostate of emergency either existing or imminent. And my submission isthat except under a proclamation made by the Governor of a state ofemergency, when he considers there is one, the powers of the Governor arelimited in that the Governor cannot cause the arrest of a person exceptwith the concurrence of the Home Minister.
Where an executive officer is given the power to “ cause a man to bearrested” that arrest may be carried out by the Governor ordering aperson, who is bound to obey his order to arrest the man. The other wayin which it may be done is by ordering a person who is not bound to obeythat order, but one who will accede to that order and in that way thearrest is carried out. If the Order in Council stood without any modifica-tion of that power by subsequent legislation, it is immaterial to whom theGovernor issued that order or request. According to the later Order inCouncil , this power to cause arrest undergoes a modification in regardto the way in which the power is exercised. The question remainswhether the present custody is illegal. It is submitted that the words“ incapable of being exercised after the said date ” undoubtedly modifycertain powers which were vested in the Governor- previously and whichwere in existence at the time the Order in Council became operative.
Counsel cited a case reported in (1920) 13 K.B. 311; Samo case';Maxwell, pp. 71 and 109; Maxwell’s Interpretation of Statute (4th ed.),chap. III.; The Government of the British Empire by Prof. Berriedale Keith,{chap. VII. part I.)—‘The Rule and the Rights of the British Subject’;Walter Pereira’s Laws of Ceylon, p. 38.
The Governor has been misinformed with regard to the scope of hispower and the power has been exercised on the basis that the power wasunlimited and can be exercised for any purpose which is desirable.
A. L. Wijeyewardene, S.-G., in reply.—When a law is expressed inclear and unambiguous language, there is no rule of construction whichenables a Court to refer to the preamble or the history of the legislationor any surrounding circumstances to ascertain the intention of thelegislature—see Willis v. Gipps, “ Salkeld v. Johnston and others, * Lyall n.Narayanan/
Article III., 3, of the Order in Council of October 26, 1896, is expressedin very clear language. It is, therefore, not within the province of aCourt of law to refer to the preamble of this Order in Council or theamehding Order in Council of March 21, 1916, in order to construe theplain meaning of this Article.
> 1916 2 K. B. 742.
* (1646) 13 English Reports (PrivyCouncil) 636 ; 5 Moo P. C. 379.
» (1849) 18 L. J. CA. 493.• 13 N. £. R. 28 at p. 30.
205
ABRAHAMS C.J.—In re Mark Antony Lyster Bracegirdle.
A close examination of the various sub-paragraphs of Article UI. showsthat where the Order authorised the Governor to exercise his powers onlywhen he considered it necessary to do so in connection with the defenceof the Colony, it stated so in express terms (tride sub-paragraphs '(5), (6),and (8) ). Sub-paragraph (3) makes no reference to the defence of theColony and the legislature should be considered to have given unfetteredauthority to the Governor under that sub-paragraph'.
[Abrahams C.J.—Where violence is done to the fundamental principles,
„ is it suggested that one cannot look at the statute as a whole or to anythingelse to say whether the power has been given untrammeled ?
My submission is that the validity of>a colonial law depends on theColonial Law Validity Act, 1865, and not on the fact of its being inharmony with the principles of the British Constitution—vide Abeyasekerev. JayatilakaDias v. The Attorney General.*
In Eshugbayi Eleko v. The Officer Administering' the Government ofNigeria,3 the Eleko contested the validity of the order against him mainlyon questions of fact. He contended that he was not a native chief, that hewas not deprived from Office and that there was no native law requiringthe removal of a chief as referred to in the Deposed Chief’s RemovalOrdinance of 1917.
Cur. adv. vult.
May 18, 1937. Abrahams C.J.—
This is a case in which a rule nisi has been granted for a writ ofhabeas corpus. The subject of the writ, Mark Antony Lyster Brace-girdle, is an English-born British subject. We have heard this casewith most anxious care, and I approach the question of our decisionwith equally anxious consideration as must always be done by HisMajesty’s Judges where the liberty of the subject is concerned.Mr. ijracegirdle asserts that the Police, through the Governor, have,seriously restrained his liberty. On the other hand it is claimed onbehalf of the Governor that the restraint of Mr. Bracegirdle’s libertyhas taken place legally and by reason of an absolute power vested in theGovernor. Our duty as Judges in such matters is pne which must bedischarged with the greatest care. In Rex. v. Superintendent of ChiswickPolice Station, ex parte Sacksteder, * Scrutton L.J. said.
“ I approach the consideration of this case with the anxious carewhich His Majesty’s Judges have always given, and I hope willalways give, to questions where it is alleged that the liberty qf thesubject according to the law of England has been interfered with.This jurisdiction of His Majesty’s Judges was of old
the only refuge of the subject against the unlawful acts of theSovereign. It is now frequently the only refuge of the subject againstthe unlawful acts of the Executive, the higher officials, or morefrequently the subordinate officials. I hope it will always remainthe duty of His Majesty’s Judges to protect those people.”
I conceive that it is no less the duty of His Majesty’s Judges in thisIsland to afford the -same protection, but I think it is not out of place
1 (19301 33 N. L. R. 291.3 (1931) Appeal Cares. 662.
* 20 N. L. R. 193.* (1918) 1 K. B. 578, at p. 589.
206 ABRAHAMS C.J.—In re Mark Antony Lyster Bracegirdle.
to bear in mind that we must proceed with the utmost impartiality andcaution lest we unduly.better the legitimate action of the Executive.
The facts, so far as they are material for our consideration of the case,are these: On the 21st of last month (April) an order signed by theGovernor was served upon Mr. Bracegirdle requiring him to quit theIsland on or before 6 p.m. four days later. He omitted to comply withthat order, and on the evening of the 7th of this month he was arrestedby an officer of Police purporting to act under the authority of theGovernor. An actual order was issued by the Deputy Inspector-General, Criminal Investigation Department, which, in addition toauthorising the arrest of Mr. Bracegirdle, directed the officer of Policeexecuting the order to place Mr. Bracegirdle on board any ship proceedingfrom CeyJon to Australia, which Dominion was, it would appear,Mr. Bracegirdle’s last place of residence before he came to this Island.The reasons which prompted His Excellency to take this action havenot been placed 'before us in detail,^ but it is not necessary, for thepurposes of our decision, that they should have been. It is, however,notorious that Mr. Bracegirdle was alleged to have comparativelyrecently expressed his views on certain political and social aspects oflife in Ceylon, and there is no harm in assuming that the Governor wasof opinion that Mr. Bracegirdle’s actions and utterances justified hisremoval from the Island. ' That is so far as I need refer to the antecedentfacts of the matter. An application for a writ of habeas corpus wasimmediately made- oh Mr. Bracegirdle’s account, and it was submittedthat the order of the Governor was ultra vires. This order purportedto have been made under Article III., 3, of the Order in Council ofOctober 26, 1896, the exact words of which provision I shall presentlyset out. It wasallegedin supportof this submission (thecase
has been mainly fought on. the point) that an order under Article III., 3>of the said Order in Council could only be made on the arising of anemergency, and that no such emergency as was contemplated by theOrder in Council had arisen, and that even if such an emergency hadarisen no order cpuld be made without prior proclamation of theemergency. It;was also alleged that the arrest itself is illegal inasmuchas certain constitutional changes brought about by the State CouncilOrder in Council, 1931, precluded the Governor from employing thePolice for the' purposes of making the arrest. The Order in Councilin question wasenactedon October 26, 1896. I thinkthatit is
desirable to summarise its provisions, and when I reach Article III., 3,I shall give the whole of its text.
Article I. is theenactingArticle andit is stated that theOrdershall
have effect in theColoniesthat are specified in the Order in Council—
these Colonies arfe, Malta, St. Lucia, Sierra Leone, Ceylon, Hong Kong,Mauritius, Straits' Settlements, St. Helena—and it was to have ^effectin any of these Colonies when proclaimed by the Governor of suchColony. It was to; continue in operation until the Governor issuedanother proclamation declaring its operation to have ceased.
Article. III., 1, places every person within the limits of the Colonyunder military law, but this provision is replaced by a prov5sion in +heamending Order in Council of 1916, to which I shall presently refer.
ABRAHAMS C.J.—In re Mark Antony Lyster Bracegirdle.207
Article III., 3, which is the provision in dispute, reads as follows : —7~B*The Governor may order any person to quit^ £he .Colony, or anypart of or place in the Colony, to be specified in su*i^6ra«?'and if anyperson shall refuse to obey arty such order the Governor may causehim to be arrested and removed from the Colony, or from such partthereof, or place therein, and for that purpose to be placed on boardof any ship or boat.”
Article III., 4, enables the Governor to make any regulations relatingto ports and harbours and the movement of ships and boats, whichregulations are declared to supersede for the time being any provisionof any law in the Colony.
By Article III., 5, the Governor is empowered to require any personto do any work or render any personal service which the Governor maythink necessary in connection with the defence of the Colony.
By Article III., 6, the Governor may requisition any animais, vehicles,ships, boats, or any personal property belonging to anybody if theproperty is required in connection with the defence of the Colony, andif compliance is not made with the requisition the property may beseized.
Article III., 7, enables the Governor to take over for public purposesthe buildings or other property including gasworks, electric light works,and water supplies, and. if he thinks it necessary for the defence of theColony he may destroy any buildings or remove any property from oneplace to another.
Article III., 8, enables the Governor to exercise control over anyrailway if he thinks it is necessary in connection with the defence of theColony.
Article III., 9, empowers the Governor to seize food supplies, fuel,and mineral oils, and to sell them and to pay the proceeds into theTreasury.
Article III., 10, enables the Governor to control food prices byproclamation.
Article III, 11, enables the Governor when he thinks it necessary forthe defence of the Colony to control the trade in intoxicating liquors.
Article III., 12, is a compensation provision for property seized anddestroyed.
Article III., 13, provides a Board to consider compensation orremuneration for work done or property seized.
Article III., 14, is ancillary to Article III., 13.
Article III., 15, enables any person authorized by the Governor inwriting to enter upon any land or house and examine and inspect it,and, if necessary, to use force to effect such entry.
Article III., 16, provides for the conviction and punishment of personswho fail to comply with any order or requisition, or hinders the carryingout of any order or requisition.
Article III., 17, relieves any person from the consequences of anybreach of contract which he may have committed in consequence ofhaving obeyed any order or requisition.
Article HI., 18, enables the Governor to issue a proclamation post-poning th«? payment in respect of rent or other moneys due and payable,
208 •. ABRAHAMS C.J.—In re Mark Antony Lystov Bracegirdle.
and the period of maturity of negotiable instruments, and* enables himto suspend for any period of time the execution of the judgments ofCivil Courts and the enforcement of their processes, if he considers that“ owing to circumstances arising out of the state of war'or the immediateapprehension of war, the immediate execution of such judgments orenforcement of such process would be .inequitable or inexpedient.”
This Order in Council was not brought into operation until a procla-mation of August 5, 1914, declared that it came- into operation, andin the same Government Gazette in which this proclamation was publishedthere was another proclamation declaring a state of war between GreatBritain and the German Empire.
On March 21, 1916, – an Order in Council was passed amending theOrder in Council of 1896, by substituting for Article III., 1, that is to say,the Article declaring all persons in the Island subject to military law,an extensive provision to enable the Governor to make regulations forthe public safety and the defence of the Colony, and providing for manymatters in connection with these purposes, but. it is not necessary toenumerate all these. The preamble to this Order in Council reads asfollows : —
“Whereas by an Order in Council dated the 26th day of October,1896, (hereinafter referred to as the principal Order) Her MajestyQueen Victoria was pleased to make provision for the security of theColonies mentioned' in the schedule to that Order in times ofemergency.”
It was further declared that, the amending Order was to be construedand read as one with the Order in Council of 1896.
Now in answer to an affidavit supporting the application for a writof habeas corpus which repeated the objections to the validity of theGovernor’s order, which I have detailed, above, an affidavit was put inon behalf of the Crown which was sworn by the Secretary to HisExcellency and which alleged that the order of the Governor on whichthe arrest was effected was made in the public interest. The learnedAttorney-General, in showing cause, against the Rule, argued strenuouslythat Article III., 3, gave the Governor absolute power to make theorder. That is to say, he contended that the Courts had no authorityto inquire into the circumstances under which the order was issued.'He emphasized what he described as the clear unambiguous words ofArticle III., 3, and in reply to the contention on behalf of Mr. Bracegirdlethat the order of the Governor could be issued only in times of emergency,he argued that although this expression “ times of emergency ” occurredin the preamble to the amending Order in Council, 1916, and althoughthe amending Order is to be read as one with the principal order, seeingthat the words in Article III., 3, were clear and unambiguous they couldnot be controlled in any' way by the words of the preamble. Hepointed out that the proclamation of August 5, 1914, had never beenrevoked, and that in view of Article I. (the enacting Article of the Orderin Council of 1896) to the effect that the Order in Council was to remainin force until revoked, by a subsequent proclamation, which proclamationhad not been issued, it was conclusive that, whatever circumstancesmight be' existing, and however much the continuance in operation of
209
ABRAHAMS C.J.—In re Mark Antony Lyster Bracegirdle.
the Order in Council might be criticised, the fact that 'the Order wasin operation and that the words of Article in., 3, are clear andunambiguous gave the Governor the powers which he had exercised andwhich he claimed were beyond the scrutiny of the Court.
Now this power claimed by the learned Attorney-General is a verywide power, and if the legitimacy of the claim is admitted it meansthat from August 5, 1914, right down to the present day, then in thewords of Mr. Perera, who appeared in support of the Rule,, there hasbeen in contemplation of law no personal liberty in Ceylon. It is saidby the learned Attorney-General that executive officers who haveextreme powers conferred upon them are assumed to exercise thesepowers prudently and justly. That is no doubt true but Mr. Perera,however, points out that it is not a question of what the Governor islikely to do, but it is a question of what he can do, and that in order tosee whether it was intended that absolute powers in respect to. this orany other provision of the Order in Council have been conferred uponthe Governor the remaining provisions of the Order in Council should belooked at. There is strong authority to the effect that the Legislaturedoes not intend to interfere with existing law and that it would requireclear and unmistakable language to dislodge that presumption. InChapter III., Maxwell on "The Interpretation of Statutes” (4th ed.),p. 132, the following passage occurs : —
“ It is in the last degree improbable that the Legislature wouldoverthrow fundamental principles, infringe rights, or depart from thegeneral system of law, without expressing'its intention with irresistibleclearness; and to give any such effect to general words, simplybecause they have that meaning in their widest, or usual, or naturalsense, would be to give them a meaning in which they were not reallyused. General words and phrases, therefore, however wide andcomprehensive in their literal sense, must be construed as strictlylimited to the actual objects of the Act, and as not altering the law .beyond.”
There can be no doubt that in British territory there is the fundamentalprinciple of law enshrined in Magna Carta that no person can be deprivedof his liberty except by judicial process. The following passage fromThe Government of the British Empire by Professor Berriedale Keith,is illuminating and instructive. In Chapter VII. of Part I., he dis-cusses “The Rule of Law and the Rights of the Subject ” p. 234.He says: —
“Throughout the Empire the system of Government is distinguishedby the predominance of the rule of law. The most obvious side ofthis conception is afforded by the principles that no man can be madeto suffer in person or property save through the action of the ordinaryCourts after a public trial by established legal rules, and that 'thereis a definite body of well known legal principles, excluding arbitraryexecutive action. The value of the principles was made obviousenough during the war when vast powers were necessarily conferredon the executive by statute, under which rights of individual libertywere severely curtailed both in the United Kingdom and in the overseaterritories.' Persons both British and alien were deprived legally but
210ABRAHAMS C.J.—In re Mark Antony Lyster Bracegirdle.
more or less arbitrarily of liberty on grounds of suspicion of enemyconnections or inclinations, and the movements of aliens were severelyrestricted and supervised; the courts of the Empire recognized thevalidity of such powers under war conditions, but it is clear that acomplete change would be effected in the security of personal rightsif executive officers in time of peace were permitted the discretionthey exercised during the war, and which in foreign countries theyoften exercise even in time of peace. ”
It is therefore contended on behalf of. the Cro'wn in this case thatthat principle to whidh I have referred above can be definitely abrogatedat the will of any Naval or Military authority to whom he delegated hisGovernor under Article 4 of the amending Order in Council of 1916,at the will of any Naval or Military authority to whom he delegated his-powers. This is indeed a startling proposition. It implies that, to usethe words of Lord Atkinson in Rex v. Halliday1 (a case which thelearned Attorney-General appeared to think supported him) “thepersonal liberty of the subject can be invaded arbitrarily .at the merewhim of the Executive.”
The learned Solicitor-General, who replied on behalf of the Crownto Mr. Perera’s submissions, argued that it was incumbent upon theCourt to consider Article III., 3, by itself. He was entirely unable tojustify this submission in view of the rule of construction that the wholeof an enactment must be considered in the construction of any of itsparts. It was said in the very ancient case of Lincoln College’s Case"that “ the office of a good compositor of an Act of Parliament is to makeconstruction on all the parts together and not of one part only by itself ” ;and Tanfield J. said in the almost equally venerable Chamberlain’s Case r“ As a will ought to receive construction by due consideration of theintention of testator collected out of all the parts of the will, so themeaning of an Act of Parliament ought to be expounded by an examina-tion of the intention of the makers thereof collected out of all the clausestherein so that there be no repugnance but a concordancy in all theparts thereof. ” An examination of the whole of the Order in Councilof 1896, with its many references to things done through a state of war,or done in connection with or in aid of the defence of the Colony ; withits requisitions of food and fuel ; its references to the seizure, use ofand destruction of public buildings; its control of railways, lightingstations and the water supply, make it overwhelmingly obvious thatthese extraordinary measures brushing aside the. ordinary law of theland, suspending payment of debts and excising persons affected by theregulations from perform- ^ cor tracts must be employed only intimes when the National security must be provided for by such extrememeasures, and it is equally obvious that this threat to National securitymust be by the very language of the Order real or apprehended state ofwar or widespread civil disorder.
No authority has been cited to me by the learned law officers to■ justify me in separating and interpreting one single provision of theOrder in Council apart from its companions. It is inconceivable that
■ {1917) A. C. 260 at 271.- {1595) 76 E. R. 764.
(1610) 145 E. R. 346.
ABRAHAMS C.J.—In re Mark Antony Lyster Bracegirdle.
211
the Sovereign in Council would have mixed up a number oi subjects andconferred some powers upon the Governor which, as the Solicitor-General finally admitted, could only be used to meet war or a threat ofwar or be exercised in the interests of the defence of the Colony, whileothers like those in Article III., 3, enabling deportation, and those inArticle III. 4, enabling the exercise of complete control over shippingto be exercised, and those in Article III., 15, enabling any house orbuilding to be entered upon, were to be exercisable at will and at large.It is obvious to me that the Sovereign in Council intended one of twothings, (and this seems to me to be necessarily implied by the words ofthe enacting Article in the Order in Council), namely, that either theOrder in Council is to be brought into effect by proclamation at a timewhen the National security is likely to be in danger by some widespreadactivity such as war or extensive civil disorder, and that when theNational security is no longer imperilled by the state of affairs then theproclamation should be revoked ; or that the Order in Council whenonce proclaimed should remain in force indefinitely but no powers shouldbe exercised under it unless called for on account of an emergency ofthe kind indicated above. I incline to the former view because I thinkit is more consistent with the actual text of the enacting clause, forotherwise there would have been no purpose in empowering the Governorto bring the Order in Council into effect by means of a proclamation.This question was in point of fact considered by Barret-Lennard J.in a case tried in Singapore in 1922, in which the scope of Article III., 3,.came under consideration. A verbatim newspaper report of this casehas been handed to us. Barret-Lennard J. was of opinion that theOrder in Council, affecting as it did places which were all of strategicimportance, was intended to refer to war and to war only, and he saidin very strong language that when the Great War which caused theOrder in Council to be proclaimed in the Straits Settlements (as it wasin Ceylon) had terminated, the Governor was not justified in keepingthe Order in Council in operation, and he went so far as to say that theOrder had expired not later than the time when the Central Powersresumed friendly relations with Great Britain in consequence of thevarious Peace Treaties. I confess that I am rather impressed by hisreasoning, but it is not necessary for me to go so far as to say that I amin agreement with it since I am of the opinion that no powers can beexercised under the Order in Council unless an emergency of such a kindas is contemplated by the terms of the Order inCouncil be real or imminent.
A great deal of argument has been addressed to us on the subject ofthe powers of the Courts to scrutinize the powers of.the executive whenconditions under which these powers are to be exercised have beenattached to these powers by the various enactments conferring them,and a number of cases have been cited to us the great majority of whichhave dealt with applications for habeas corpus made by persons Britishor alien in respect of the exercise of powers conferred on the HomeSecretary by war time legislation. But the point.in this case is whetherthe power of the Governor to issue an order under Article HI., 3, of the1896 Order in Council is absolute or not. . It is contended that it isabsolute—unconditioned by time,' occasion, or circumstance. I am of
212ABRAHAMS C.J.—In re Mark Antony t/yster Bracegirdle.
the opinion that it is not absolute and that the power may be exercisedonly under conditions. It was not stated in the affidavit o£ HisExcellency’s Secretary that the issue of the order was justified becausea state of emergency existed and that the conduct of Mr. Bracegirdlejustified the action which was taken in view of the emergency. Hadthat been advanced in argument I should have nevertheless held thatwe are entitled, and indeed we have a duty to inquire as to whether theconditions which must be satisfied before power granted to an executive''officer can be exercised have been fulfilled. What shall satisfy a Courtin such behalf I am not prepared to say, but 1 do think it appropriateto state that the Courts have such powers of inquiry. This was said inunmistakable terms in the Privy Council case of Eshttgbayi Eleko v. TheOfficer Administering the Government of Nigeria'. The Supreme Courtof Nigeria had held that the Judges had no power to inquire into certainconditions that had to be fulfilled before the Governor of Nigeria couldissue an order requiring a native to remove himself from one part of theColony to another, and Lord Atkin, at page 670, said: —
“ Their Lordships are satisfied that the opinion which has prevailedthat the Courts cannot investigate the whole of the necessary con-:ditions is erroneous. The Governor acting Under the Ordinance actssolely under executive powers, and in no sense as a Court. As theexecutive he can only act in pursuance of the powers given to himby law. In accordance with British Jurisprudence no member of theexecutive can interfere with the liberty or property of a British subjectexcept on the condition that he can support the legality of his actionbefore a Court of justice.”
But we are, however, absolved from considering any question as towhether the conditions attached to the exercise of the Governor’s powersunder the Order in Council have been fulfilled because, as I have said,it is not maintained that they have been so fulfilled. The Crown takesits stand upon what it submits are the unquestionable ..absolute powersof the Governor, and it is our duty to say–that those powers are limited:The question whether it would be in the. public interest that Mr. Brace-girdle should leave the Colony is not to the purpose. Were he an alien,that question' might be one for decision under section 5. of “TheSupervision of Aliens Ordinance, No. 14 of 1917but he is not, and
we have to decide his rights as a British subject.
In my opinion then the Governor’s order purporting to be made underArticle III, 3, of the Order in Council of 1896, was made withoutauthority. The arrest and detention are illegal and Mr. Bracegirdlemust be released.
In view of my opinion that the order of the Governor is invalid,an opinion with which I understand my brother Judges will expressconcurrence,‘it is not necessary for us to give a decision upon the secondground on which it is contended that the arrest and custody by thePolice are illegal. But I think it fit to say. that I am of opinion thathad I held that the order of the Governor was valid, I should haverejected the submission that he is disqualified from employing the Police
1 {1931) Appeal Cotta 66S.
MAARTENSZ J.—In re Mark Antony Lyster Bracegirdle.213
. in. ■—Mil '1..-
to effect the arrest which he is authorised to cause. This I am able tosay without going into the question as to whether the State CouncilOrder in Council precludes the Governor from issuing orders to thePolice. Whether it does or does nbt is not to the purpose, since there isnothing to prevent the Governor from requesting the Police to effectthe arrest which he is authorised to cause.
Maahtensz J.—
On April 20, 1937, His Excellency the Governor purporting to actin pursuance of the power vested in him by clause 3 of Article III.of an Order in Council dated October 26, 1896, ordered Mark AntonyLyster Bracegirdle (hereafter referred to as Bracegirdle) to quit theIsland of Ceylon on or before 6 p.m. on April 24, 1937.
Bracegirdle refused to obey the order, and His Excellency in pursuanceof the powers vested in him by the said clause directed the DeputyInspector-General of Police, Criminal Investigation Department, or anyPolice Officer authorised by him in writing to arrest and removeBracegirdle forthwith from the Island.
Bracegirdle was arrested on May 7, 1937, by Inspector Kelaart, whohad been authorised to arrest him.
The petitioner makes this application as a friend of Bracegirdle.
The petitioner submits—(a) that “ an order under clause 3 of Article HI.of the Order in Council of October 26, 1896, can only be made on thearising of an emergency, that no such emergency as contemplated by thesaid Order in Council has arisen, that no such order can be made Withoutprior proclamation of such emergency ”; (b) That “ the said arrestwas illegal and unwarranted inasmuch as His Excellency the Governorhad not in law power to issue (to) the police tihe said order dated April20, 1937, or the said order of arrest dated May 7, 1937, or to causeeither of the said orders to be served or executed by or through thepolice ”.
The Attorney-General who showed cause against the applicationcontended—(a) that clause 3 of Article HI. gave the Governorunquestionable power to order a person to quit the Island and that thepower could be exercised, whether there was an emergency or not, (b)that if the power could be exercised only in an emergency it was notopen to the Court to inquire whether there was an emergency much lessas to the nature of the emergency.
I do not think that the alternative contention is open to the Attorney-General because the affidavit filed by him sworn to by the Secretaryto the Governor does not allege that there was an emergency whichnecessitated the making of the order. , The petitioner’s allegation “ thatno such emergency as is contemplated by the said Order in Council hasarisen ” stands uncontradicted.
It is in my opinion therefore unnecessary to examine in detail thenumerous authorities cited to us regarding the power of the Court toinquire whether there had been an abuse or misuse of the power under-which an order affecting the liberty of a person was made.
214MAARTENSZ J.—In re Mark Antony Lyster Bracegirdle.
In the case of The King v. Inspector of Leman Street Police Station,ex parte Venicoff,1 the Secretary of State “in pursuance of the powersconferred by the Aliens Restriction Act, 1914, Article 12, made orderthat Samuel Venicoff …. shall be deported from the UnitedKingdom …. and directed that from and after the service ofthis order upon the .above-named alien he shall, until he can be con-veniently conveyed to and placed on board the ship on which he is toleave the United Kingdom, and whilst being conveyed' to the ship anduntil the ship finally leaves the United Kingdom, be in custody of theconstable or other officer charged with the duty of enforcing this order
In pursuance of that order Venicoff was detained in custody. There-upon he applied for rules nisi for habeas corpus and certiorari directedrespectively to the Inspector of Leman Street Police Station and to theSecretary of State for Home Affairs.
Article 12 reads as follows : —“ The Secretary of State may, if he deemsit to be conducive to the public good, make an order (in this Orderreferred to as a deportation order) requiring an alien to leave and toremain thereafter out of the United Kingdom. …. ”.
On return to the rules an affidavit by Sir John Pedder, an AssistantSecretary in the Home Office, was read which set out the grounds uponwhich it appeared to the Home Secretary that the applicant was a managainst whom it wfis conducive to the public good that a deportationorder should be made.
The Earl of Reading C.J. said in the course of his judgment, “ Turningnow to the statute, Art. 12 and the deportation order made under it,I have no doubt that it is not for us to pronounce whether the making ofthe order is or is not conducive to the public good. Parliament hasexpressly empowered the Secretary of State as an executive officer tomake these orders and has imposed no conditions ”. This dictum andthe decisions in the cases of Rex. v. Brixton Prison {Governor), ex parteSamo ‘; Rex v. Secretary of State for Home Affairs, ex parte Duke ofChateau Thierry Rex v. Halliday *; and The King v. Governor of Worm-wood Scrubbs Prison5; would have had to be examined as well as thecase of Eshugbayi Eleko v. The Officer Administering the Government ofNigeria * if an emergency had been alleged in the affidavit filed by theSecretary to the Governor. As I have already said there is no suchallegation and the only question which in my judgment arises fordecision is whether the Governor’s power to make an order under clause3 is unfettered or whether he could only make the order on an emergencywhich effects the safety of the Island and which could be met by thedeportation of Bracegirdle.
It is necessary for the determination of this question to consider thecircumstances in which the Order in Council was made and proclaimedin the Island and to examine the various clauses of the Order.
The Order was made by Her Majesty Queen Victoria in Council onOctober 26. 1896. It enacts that the Order “ shall apply to and haveeffect in all or any of the Colonies specified in the schedule hereto inwhich it shall be proclaimed by the Governor of the Colony,and shall
>• (1920) 3 K. B. 72.* 0017) A. C. 260.
* 0916) 2 K. B. 742.* (1920) 2. K. B. 305.
a 0917) 1 K. B. 922.* 0931) Appeal Gases662.
MAARTENSZ J.—In re Mark Antony Lyster Bracegirdle.215
come into operation in each such Colony on being so proclaimed therein,and shall continue in operation therein until the Governor shall byproclamation declare that it has ceased to be in operation therein
The Colonies specified in the schedule are Malta, St. Lucia, SierraLeone, Ceylon, Hong Kong, Mauritius, Straits Settlements, and St.Helena.
The order was proclaimed in Ceylon on August 5, 1914, that is on' theoutbreak of the Great War.
The Order in Council dated October 26, 1896 (hereafter referred toas the principal order) was amended by Orders in Council dated August28, 1914, and March 21, 1916. These were proclaimed in the Island onOctober 7, 1914, and June 5, 1916.
The Principal Order did not specify the purpose for which it wasenacted. But the amending Order dated March 21, 1916, sets out thepurpose in a preamble in the following terms—“ Whereas by an Orderin Council dated October 26, 1896, (hereinafter referred to as the PrincipalOrder) Her Majesty Queen Victoria was pleased to make provision forthe security of the Colonies mentioned in the schedule to that Order intimes of emergency ”.
The petitioner contended that the preamble limited the powers con-ferred on the Governor by the Principal Order and the amending Orderto “ times of emergency and that the times of emergency contemplatedby the principal Order were such as would arise in times of war orpossibly grave civil disturbances.
The reply to this contention was that where the terms of a sectionare plain and unambiguous it is a rule of construction that a Court isnot entitled to refer to the preamble, or the history of the legislation orsurrounding circumstances in construing the section. In support ofthis argument we were referred to the cases of (1) Willis v. Gipps'.The Act in question was the Colonial Leave of Absence Act, 1782 (c. 75).The preamble of the Act recited the mischief of granting colonial officesto persons who remained in England and discharged the duties of theiroffices by deputy. It was held that the preamble did not excludejudicial offices from the general enacting part, which .authorised theGovernor to remove ‘ any ’ office holder for misconduct, although themention of delegation in the preamble showed that the judicial officewas not there in contemplation. Pull effect was given in the decisionto the word ' any (2) Rex v. Brodribb3 where it was decided that thepreamble to the Oaths Act, 1797 (c. 123), which refers only to themischiefs consequent on inciting men to sedition and mutiny, and onadministering to them oaths with this object, did not restrict thfenacting part of the statute, which made it felony to administer oathswith a view not only to mutinous or seditious purposes, but also todisturbing the peace ; or to be a member of any such association forany such purpose or not to reveal any unlawful combination or illegalact; it being held that the latter words included offences foreign topolitics and military discipline, such as the administration of oaths fopoachers not to betray their companions.
1 (1840) 13 English Reports {Privy Council) 536 ; 5 Moo- P. C. 379. ~ {1816) 6 C. P. 571.
39/19
216MAARTENSZ J.—In re Mark Antony Lyster Bracegirdle.
The enacting part considered in these cases contained words which«xtended the provisions beyond the preamble. If clause 3 containedwords of a similar character effect would have to be given to themhowever drastic that effect may be.
The clause reads as follows : —“ The Governor may order any personlo quit the Colony, or any part .of or place in the Colony, to be specifiedin such order, and if any person shall refuse to obey any such order-the Governor may cause him to be arrested and removed from theColony, or from such part thereof, or place therein, and for that purposeto be placed on board of any ship or boat
In my judgrhent there are no words in the clause which indicate thatan order can be made in pursuance of the powers conferred by it at anytime and for any purpose.
It was also contended against the rule being made absolute that thepreamble was not a part of the principal Order. I do not think that asound contention. Where the preamble of an amending enactmentspecifies the reason for the enactment of the principal act we are entitledto look at the preamble for the purpose of determining the scope of theprincipal act.
The petitioner next contended that the Order in Council must beread as a whole in order to ascertain the true meaning.of its severalclauses, and that if it were so read it would be manifest that the powerconferred by clause 3 could only be exercised in time of war or gravecivil disturbance.
Article III. of the Principal Order in Council enacts that “ so longas this Order shall be in operation in any Colony the following provisionsshall have effect The provisions are embodied in eighteen clauses.The first clause provided that every person within the limits of theColony shall be subject to military law for the purposes of the Army Act.The Order in Council dated March 21, 1916, substituted for clause 1a clause empowering the Governor to make regulations for securing thepublic safety and the defence of the Colony. The second clause providedthat any declaration made by the Governor under section 189 of theArmy Act shall be deemed to apply to ev.ery military force raised in theColony. The 3rd, 4th, 5th, 6th, 7th, 8th, 9th, 10th, 11th and 18thclauses empower the Governor to order any person to leave the Colony,to make regulations or orders respecting any port or harbour in theColony, to requisition the services of any person, to requisition anyanimals, vehicles, ships, boats, &c., to take possession of buildings orother property (including gasworks and works for the supply of electricity),waterworks, wells, &c., to requisition the resources of any railway, toseize and take possession of articles of food and fuel, to prescribe themaximum price at which articles of food may be sold, to take steps tocontrol the trade in beer, wine and spirits, to extend the time for thepayment of rent or other money and the maturity of bills and to suspend■the execution of judgments.
Clause 15 empowers any person authorised by the Governor to enterupon and examine any land or building.
Clauses 3, 4, 9, 10, and-15 do not state in express terms as the otherclauses do that the powers are to be exercised in aid of or in connection
21T
SOERTSZ J.—In re Mark Antony Lyster Bracegirdle
with the defence of the Colony. But having regard to the nature ofthe powers they confer and the other clauses in which the exercise ofthe powers is limited to the -defence of the Colony and the first clausewhich places every person under military law, I am of opinion that thepowers conferred by clauses 3, 4, 9, 10, and 15 were only to be exercisedwhen the defence or safety of the Colony required it.
In the cases which arose in England from orders made under the-Defence of the Realm Act the Judges laid great stress on the fact thatthe orders were made in exercise of powers conferred on the executive in atime of great danger resulting from the war in which England was engaged.
The Order in Council was, I have no doubt, proclaimed on August 5,1914, to meet exigencies arising from a state *of war. The fact that ithad not been repealed after the war terminated would not justify theexercise of powers which could properly be exercised only at a time ofgreat public danger.
I am of opinion having given the matter my anxious considerationthat clause 3 cannot be read as a separate clause conferring on the-Governor the right, unfettered by any condition to order any person toquit 'the Colony at any time. It must be read with the other clauses ofthe Order in Council for the purpose of determining the extent of thepowers conferred by it; read in that way it is to my mind manifest thatthe power to order a person to quit the Colony could only be exercised intimes of emergency. The nature of the emergency in view of the otherprovisions of the Order in Council could only be a state of war or gravecivil disturbance.
It is not claimed that the order dated April 20, 1937, 'was made insuch an emergency.
I am of opinion, therefore, that the order was not authorised by clause3 and that the arrest and detention of Bracegirdle are illegal. He mustaccordingly be released.
Soertsz J’—
I have had the pleasure and the advantage of reading the judgmentsof My Lord the Chief Justice and of my brother Maartensz, and I agreethat the order nisi granted by this Court must be made absolute andMark Antony Lyster Bracegirdle released. The facts of this casehave been already fully stated and I abstain from repeating them. Butin view of the importance of the questions of law involved in thisapplication I wish to make a few observations myself on them.
The Law Officers of the Crown sought to justify the orders made byHis Excellency the Governor under clause 3 of Article IH. of the Orderin Council dated October 26, 1896, by virtue of which the- Governor-purported to act. I agree with them that this clause read by itselfappears to give His Excellency an absolute and unlimited power to makethe orders relied upon. But I am unable to agree with their contention-that that clause should be separated from the other clauses of the Orderin Council ^ind considered by itself. Such a course is opposed to wellknown' and fundamental rules of legal interpretation which requireStatutes that grant powers “ to be construed as strictly limited to theactual objects of the Statutes and as not altering the law beyond.”
218
SOERTSZ J.—In re Mark Antony Lyster Bracegirdle
“ to make construction on all parts together and not of one part onlyby itselfThe trite legal maxim in regard to the interpretation ofeach clause in a Statute is “ noscitur a sociis ”. Moreover,, in thisparticular instance, the Order in Council of 1896 provides for the wholeof it applying and having effect on its being proclaimed by the Governor.There is no provision for its being called into operation piecemeal.
If then clause 3 of Article III. is read with reference to the other clausesand Articles in the Order in Council we are driven to the conclusion thatthis Order meant to invest the Governor with extraordinary powers forthe defence of the realm and for the security of the Colony in. time ofemergency. In such time, it is possible to condone acts which in thewords of Lord Redding “ would, in truth, shock the majority of personsin the country in time of peace ”. That this was the intention of HerMajesty and that she “ never intended to construct an instrument ofviolent and arbitrary power ” is elucidated by the preamble to the Orderin Council of March 26, 1916, by which the principal Order in Council of1896 was amended; it expressly declared that “ whereas Her Majesty-Queen Victoria was pleased to make provision for the security of theColonies mentioned in the schedule to that Ordinance in. times of emer-gency, &c., it was further provided that this amending order “ shouldbe construed and read as one with the principal order Moreover,the fact that these Orders in Council enacted temporary measures is borneout by the clause in the principal order which provided for their cominginto operation on being proclaimed by the Governor of the Coloniesconcerned and remaining in force until the Governors declared thatthey had ceased to be in operation.
At this stage, I would address myself to the argument [addressed]advanced by the law officers that inasmuch as these Orders in Council werebrought into operation they are effective and afford authority and justifi-cation for His Excellency’s orders. No doubt, these Orders in Council arein operation in the sense that they have not been revoked but they cannotbe applied or made effective in the absence of the conditions on which theirvalid functioning depends. Those conditions are two-fold and con-comitant—the security of the Colony and times of emergency. Nowin this case, the affidavit of the Secretary to His Excellency the Governorwhich was put before us states, “ I am informed by His Excellency thatthe said orders were made because His Excellency was satisfied on theinformation available to him that circumstances had arisen rendering itnecessary in the public interest to make the said orders ”. But that,if I may say so respectfully, is insufficient for even if we regard thephrase ‘ in the public interest ’ as an exact equivalent of the phrasein the Order in Council ‘ the security of the Colony’, only one of. thenecessary conditions is satisfied by that declaration. As pointed outhy my brother Maartensz the averment in the petitioner’s affidavit* that no such emergency as is contemplated by the Order in Councilhas arisen ’ has not been contradicted.
Therefore, the second condition for the lawful exercise of the powersgiven to His Excellency by clause 3 of Article HI. is wholly absentamd the orders made by His Excellency in pursuance of those powers are,in my opinion, ultra vires.
Santiago v. Santiago.
219
Another point was taken on behalf of the petitioner, namely, thatHis Excellency’s order issued to the Deputy Inspector-General of Policedirecting the arrest of Bracegirdle was bad in law because it was issued'without the concurrence of the Minister for Home Affairs.
We were earnestly pressed to consider this question and to give ourruling on it. But, I respectfully agree with the Chief Justice that theconclusion we have reached on the first matter absolves us from thenecessity of considering an academic question.