JANAK HIRDARAMANI, Petitioner, and A. R. RATNAVALE (Permanent Secretary, Ministr

011-NLR-NLR-V-75-JANAK-HIRDARAMANI-Petitioner-and-A.-R.-RATNAVALE-Permanent-Secretary-Ministr.pdf


Hirdaramani v. Ratnavale
67
i
1071 Present: H. N. G.. Fernando, C.J., G. P. A. Silva, S.P.J., andSamerawickrame, J.JANAK HIRDARAMANI, Petitioner, and A. R. RATNAVALE(Permanent Secretary, Ministry of Defence and External Affairs)and 2 others, Respondents
S. C. 354/71—Application for a Writ of Habeas Corpus under Section45 of the Courts Ordinance
Emergency (Miscellaneous Provisions and Powers) Regulations, No. 6 of 1971 (publishedin “ Government Gazette " of August IS, 1971)—Regulations IS, 19, 20, 51,52,-S3, 55, 65—Detention Order made under Regulation 18 (1)—Habeas Corpus
application—Affidavit filed by Permanent Secretary—Cross^xamination ofdeponent—Permissibility—Power of Court to act upon affidavits—Civil ProcedureCode, s. 384—Order of Permanent Secretary—Justiciability—Presumption ofbona fides—Jurisdiction of Supreme Court to issue writs of habeas corpus—Whether it is ousted by Regulation 55 in the case of a detention order made inabuse of the powers conferred by Regulation 18—Courts Ordinance, s. 45—Ceylon (Constitution) Order in Council (Cap. 379), s. 51—Public SecurityOrdinance (Cap. 40), ss. 6, 5 (2) (d', 8.
The Permanent Secretary to the Ministry of Defence and External Affairs(the 1st respondent), acting in good faith under Regulation 18 (1) of theEmergency (Miscellaneous Provisions and Powers) Regulations, No. 6 of 1971;caused a person to be taken into custody on 1st September 1971 with a view topreventing the detainee “ from acting in any manner prejudicial to the publicsafety and to the maintenance of public order ”, In the present habeas corpusapplication made by the detainee’s wife for the release of the detainee, thePermanent Secretary filed an affidavit in which he referred to the widespreadarmed insurrection which commenced in April 1971 and stated inter alia thathe was satisfied, after considering certain material placed before him by thePolice, that the detainee had taken part in certain foreign exchangesmuggling transactions which were under investigation and that he should beprevented in future from engaging in Rfmilar transactions, which directly orindirectly helped to finanoe the insurgent movement;
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H. N. G. FERNANDO, C. J.—Hirdaramani v. Ratnavale
Held, (i) that the petitioner was not entitled to make an application tocross-examine the Permanent Secretary on the latter's affidavit. Mansoor v.Minister of Defence and External Affairs (64 N. L. R. 498) overruled. Moreover,as a habeas corpus application is of a summary nature, the procedurefollowed in Chapter 24 and section 384 of the Civil Procedure Code may befollowed and the final order of the Court can be made after a consideration ofaffidavits on both sides.
(ii) that Regulation 18 (I) authorises the Permanent Secretary tn make anorder for the taking into custody and detention of a person if the PermanentSecretary is of opinion that such order is necessary with a view to preventingthat person from acting in any manner prejudicial to the public safety andto the maintenance of publio order. If the detention order is produced and isvalid on its face, it is for the detainee to prove facts necessary to controvert thematter stated in the detention order, namely, that the Permanent Secretarywas of opinion that it was necessary to make the detention order for thepurpose specified in the order itself. In the present case the petitioner failedto establish a prima facie case against the good faith of the PermanentSecretary and, therefore, the onus did not shift to the Permanent Secretary tosatisfy the Court of his good faith. In the circumstances the PermanentSecretary need not have filed an affidavit at the stage when he filed it.A detention order made by the Permanent Secretary in good faith is notjusticiable.
Held further by Silva, S.P.J., and Samerawickrame, J. (Fernando,C.J., dissenting), that Regulation 65, although it provides that “ Section 45 ofthe Courts Ordinance (which confers jurisdiction on the Supreme Court to issuewrits of habeas corpus) shall not apply in regard to any person detained orheld in custody under any emergency regulation ”, is not applicable in thecase of a person unlawfully detained under an invalid detention order madein abuse of the powers conferred by Regulation 18 (1).
Application for a Writ of Habeas Corpus.
S. Nadesan, Q.C., with H. L. de Silva, K. Ratnesar, R. D. C. de Silva,V. Jajasothy and Mahinda Ounaratne, for the petitioner.
V. Tennekoon, Q.C., Attorney-General, with R. 8. Wanaaundera,Deputy Solicitor-General, N. TittaweUa, Senior Crown Counsel, and8. Sivarasa, Crown Counsel, for the respondents.
Cur. adv. wit.
December 30, 1971. H. N. G. Fernando, C.J.—^
This is an application for a mandate in the nature of Writ of HabeasCorpus ordering the respondents to bring before this Court the body ofone B. P. Hirdaramani (hereinafter referred to as “ the detainee ”) tobe dealt with according to law.
(An earlier application No. 344/71 for the same relief was made by thewife of the detainee, but Counsel for the present petitioner preferredthat the present application only be taken into consideration. The earlierapplication is therefore regarded as withdrawn.)
H. N, O. FERNANDO, C.J.—Hirdaramani v. Ratnavale
On 0th November 1971 this court issued notice on the respondentsof the application made by the Petitioner, requiring them to show causewhy the application for the issue of the Writ should not be allowed.
The detainee was taken into custody on 1st September 1971 uponan Order of the 1st respondent purporting to have been made underRegulation 18 (1) of the Emergency (Miscellaneous Provisions andPowers) Regulations, No. 6 of 1971, made under the Public SecurityOrdinance (Chapter 40) and published in the Ceylon Government GazetteExtraordinary of August 15, 1971.
In the affidavit filed with his petition, the petitioner, who is the sonof the detainee, has averred—
that on and after 1st September 1971 the detainee was detained
in the office of the Criminal Investigation Department and wasthere interrogated by Police Officers with regard to certaintransactions which are alleged to have been in contraventionof the Exchange Control Aot (Cap. 423), in pursuance of aninvestigation into those alleged offences;
that in September 1971, officers of the Criminal Investigation
Department searched the office of the Company known asHirdaramani Ltd., of which the detainee is Managing Director,questioned the Manager of the Company in regard to the Bankaccounts of the Company, and took certain books and documentsinto custody, from the office;
that on 20th September 1971 a sister of the detainee was summoned
to'the Criminal Investigation Department and questioned inregard to the alleged association of the detainee with certainpersons suspected to have committed offences against theExchange Control Act;
that the detainee has been taken into custody “ NOT with a view
to prevent him from acting in any manner prejudicial to publiosafety and/or to the maintenance of publio order, BUT forthe purpose of assisting and/or facilitating the investigationby the Criminal Investigation Department into certain allegedoffences under the law and into certain alleged contraventionsof the Exchange Control Act (Chapter 423) alleged to havebeen committed by certain other persons and/or the detainee.”
The 1st respondent, who is the Permanent Secretary to the Ministryof Defence and External Affairs, has filed in this Court a true copy ofthe Detention Order, together with an affidavit in which he stated interalia that widespread acts of insurgency took place*in April 1971 andthat the armed insurrection had seriously aggravated the financialplight of the country, that police investigations into the insurgencyand activities connected therewith have not yet. been concluded, and
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H. N. G. FERNANDO, C.J.—Hirdaramani v. Ratnavale.
that the investigations revealed that the insurgent movement had beenorganised and launched with large scale financial and material support.The affidavit of the 1st respondent further states as follows:—
" On a consideration of certain material placed before me by thePolice I was satisfied that the detainee had unlawfully obtained alarge sum of money in Ceylon by making or arranging payment abroadto the account or to the order of a person carrying on unlawful foreignexchange transactions and that this payment appeared to me to beinextricably connected with certain foreign exchange smugglingtransactions under investigation and the statements recorded in thecourse of that investigation appeared to me to indicate that theseunlawful transactions directly or indirectly helped to finance theinsurgent movements and its activities in Ceylon.
At all material times I was also of the view that the unlawful andillegal smuggling of currency in the manner, magnitude andcircumstances mentioned above would constitute a danger to thesecurity and the financial stability of the country.
I was, therefore, of opinion with respect to the detainee that, witha view to preventing him from engaging in similar activities in thefuture and from acting in any other manner prejudicial to the publiosafety or the maintenance of public order, it was necessary that heshould be taken into custody and detained in custody. Accordingly,on or about the 31st day of August 1971, in good faith, I made suchorder.”
The petition was taken up for hearing on 15th November 1971, andlearned Counsel appearing for the petitioner, first made certain submissionsin support of an application that the Permanent Secretary should submithimself for cross-examination. Counsel’s position was, substantially,that this Court should not act upon the averments in paragraphs 9, 10and 11 of the affidavit of the Permanent Secretary because the truthof these averments is challenged by the petitioner, and that Counsel isentitled to cross-examine the Permanent Secretary, and will if permittedto cross-examine, be able to establish that these averments are untrue.
While conceding that in proceedings of this nature the cross-examinationof a deponent to an affidavit is permitted only in exceptional circumstances,Counsel submitted that the circumstances of this case are exceptionalfor two reasons :—
(а)because the truth of these averments is challenged by the petitioner;
and
(б)because the nature of the investigations referred to in the affidavit
of the petitioner prima facie reveals that the actual purpose ofthe detention in custody of the detainee was to facilitateinvestigations into certain alleged offences against the ExchangeControl Aot.
H. N. G. FERNANDO, C.J.—Birdaramani v. Ratnavale
7J
In support of his application to cross-examine the 1st respondent,learned Counsel relied on the case of Mansoor v. The Minister of Defenceand External Affairs,1 reported in 64 N. L. R. 498, and in 86 N. L. R. 602.In that case there was in this Court an affidavit of one H. T. Perera(an official of the Ministry of Defence and External Affairs), containingan averment that certain relevant papers had been duly submitted tothe Minister of Defence and External Affairs. On a submission by thepetitioner’s Counsel that according to his instructions this particularaverment was untrue, Sri Skanda Rajah J. made order allowing Counsel’sapplication to cross-examine Mr. Perera, and the proceedings were thendeferred. Thereafter, the Crown applied fpr permission to cross-examinethe petitioner before Mr. Perera was cross-examined, and this applicationof the Crown was allowed by G. P. A. Silva J. Learned Counsel submittedbefore us that this was a precedent which supported his present applicationto cross-examine the lBt respondent. Counsel however does not appearto have been aware of the interesting sequel to the orders for cross-examination made in the case on which he relies. The case came upfor hearing on 18th October 1963 before T. S. Fernando J. and thepetitioner was then cross-examined by the Solicitor-General. I citenow from the judgment ultimately delivered on 18th October 1963by T. S. Fernando J. after the petitioner in that case had been
“ The application came up for final determination before me, andcounsel for both sides contended that I was bound by the earlierinterlocutory orders made by Sri Skanda Rajah J. and Silva J.I agreed that in dealing with the present petition I was so bound;indeed, any other view would have been fraught with muchinconvenience to parties to the litigation. At the same time, I shouldfor my own part like to observe, with 'much respect, that it seemsto me that before cross-examination in respect of the case for therespondents is permitted, a Court must be satisfied that the petitionerhimself has made out a case calling for answer.
In view of the interlocutory orders already made in this case Ipermitted the learned Solicitor-General to cross-examine the petitioneron his affidavit, and it became immediately apparent that the materialallegation of the petitioner that iformed the basis of this applicationwas founded upon pure speculation. It was not founded evenupon hearsay, although I must observe that an applicationin an affidavit which is based only on hearsay is itself valueless andcalls for no refutation. The petitioner admitted that he did not knowwhether the /application was or was not forwarded to the Minister.He admitted! that he received a reply from the Minister that hisapplication had been disallowed by her in terms of the Act. Indeedthis reply formed part of his application to this Court for the reliefhe sought! His cross-examination was concluded with his answerthat he made application to thiB Court merely because he was dissatisfied
1 (1983) 64 N. L. B. 498 and (1968) 66 N. L. B. 602.
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H. N. G. FERNANDO, C.J.—Hirdaramani v. Ratnavale
with the refusal of his application for citizenship. Learned counselfor him intimated to me at the conclusion of the cross-examinationthat he was unable to maintain the application.”
Mansoor's case, is thus an instructive example of the failure of greatexpectations which a petitioner in a case of this nature entertains whenhe proposes to cross-examine another party as to the truth of a matterof which the petitioner himself has no knowledge.
In the present case, the averment of the petitioner that the detaineewas taken into custody NOT with a view to preventing him from actingin any manner prejudicial to the public safety or to the maintenanceof public order, was not based on any knowledge which the petitionerhad of the purpose which the Permanent Secretary actually intended toachieve or of the actual opinion which he had formed, when he madethe detention order. Even the implication in the petitioner’s affidavitthat the interrogation of the detainee related solely to alleged contraventionof the Exchange Control Act was not based on personal knowledge, forthe petitioner was not present at these interrogations. Thus the substantiveaverment of the petitioner that the detention order was made for anulterior purpose and not for the purpose specified in Regulation 18,depended only on an inference which the petitioner has reached, fromsuch knowledge as he possesses.
After we had refused Counsel’s application that the PermanentSecretary do submit himself for cross-examination, Counsel referred tothe Indian case of Emperor v. Bhiku1. (A. I. R. 1950 Bom. 330).In that case there had been an order restraining a person fromentering a certain area, and he was prosecuted for the allegedoffence of entering the area in contravention of the order. It washeld that the burden lay on the prosecution to establish positiyelythe validity of the restraining order. In the course of the judgment,the Court observed that the officer who made the order “ muststep into the witness box ” and satisfy the Court that the orderwas made in good faith. I need only say for present purposes that theCourt did not in fact compel the officer to give evidence. But becausethere was no such evidence, the person charged was acquitted. Indeed,with only one exception, Counsel for the petitioner in the present casecould cite no authority which might show that a petitioner in proceedingssuch as this is entitled to demand that the opposing party be orderedto give evidence. As to the exception, which is Mansoor’s case decidedby Sri Skanda Rajah J., it was in my opinion wrongly decided and mustbe overruled. The proper consequence of the failure to give evidence isonly that in an appropriate case an adverse inference may be drawn.
It should be noted that the Indian judgment to which I have justreferred was given in a case of a prosecution for an offence, and that thesubstantial decision was that the ordinary burden of proving the ingredient
1 A. /. R. 1950 Bom. 330.
H. N. 0. FERNANDO, C.J.—Hirdaramani v. Ratnavale
73
of an offence must be discharged by the prosecution. The judgment ipno authority for the proposition that, if an executive order is challengedin habeas corpus proceedings, the officer making the order must testifyas to good faith. Indeed the same Bench which decided the above casehad previously ruled that there iB no proper analogy between theprosecution for a contravention of an executive order, and proceedingsin habeas corpus in which such an order was challenged—Emperor v.Abdul Majid1.—(1949 A. I. R. (Bombay) 387).
I have now stated the reasons which moved the Court to refuse Counsel’sapplication to cross-examine the Permanent Secretary. Other groundswhich supported this refusal appear during later stages of the judgment.
After Counsel’s application in regard to the cross-examination of thePermanent Secretary was refused by the Court, he made a furtherapplication that the affidavit filed by the Permanent Secretary be ruledout. We rejected this objection, but when cpnsidering the materialcontained in the affidavit, I shall bear it in mind that the petitionerhad no opportunity to cross-examine the Permanent Secretary. For thepresent I must refer to the observation of Lord Halsbury (cited byLord Reid in Greene's case) that habeas corpus “ is not a proceeding in asuit, but a summary application by the person detained ”. That being so,it is legitimate to follow the procedure provided in Chapter 24 of the Civi.Procedure Code which clearly permits the Court to act upon affidavits!In the instant' case: the Permanent Secretary is in the position of arespondent, and s. 384 of the Code entitles such a respondent to readaffidavits or other documentary evidence; indeed the respondent maynot adduce oral evidence.without leave of the Court. Ordinarily thereforethe final order of the Court can be made after a consideration of affidavitsfiled on both sides.
While the hearing of the application was in progress, Counsel for thepetitioner applied to read in evidence three newspaper reports of aninterview said to have been given in London in October 1971 by theHonourable the Prime Minister to a representative of a London newspaper.Although we glanced at these reporta in response to'Counsel’s request,we are not aware upon which of the statements attributed in them to thePrime Minister, Counsel proposed to rely, nor are we aware of the purposefor which Counsel proposed to utilise the reported statements. Thereports are filed of record, but were not admitted in evidence. Theprincipal objection taken by the Attorney-General was that the reportsare jpure hearsay, and we agree entirely that it would be a most dangerousprecedent to admit newspaper reports as proof of anything, other thanthe mere fact that the reports were published. We saw Bubstanoe alsoin the objection that a statement made in October, even "by the PrimeMinister, can have little bearing on the question whether the PermanentSecretary entertained a particular opinion in September.
111949) A. I. B. (Bombay) 387.
41-VolumeLXXV ’
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H. N. G. FERNANDO, C.J.—Hirdaramani o. Ratnavale
Regulation 18 (1) of the Emergency Regulations authorises thePermanent Secretary to make an order for the taking into custody anddetention of a person if the Permanent Secretary is of opinion that suchorder is necessary with a view to preventing that person from acting inany manner prejudicial to the public safety and to the maintenance ofpublic order.
In the instant case, there has been no dispute as to the authenticity ofthe Detention Order, or as to itB application to the detainee. Furthermorelearned Counsel for the petitioner has conceded that the production of theDetention Order constitutes a complete answer to the petitioner’sapplication for a writ of habeas corpus, subject only to the exceptionthat if the good faith of the Permanent Secretary is challenged the Courtmust after investigation decide whether the order was made for an ulteriorpurpose and not for the purpose specified in the order itself. Thepropositions which have just been stated are based on the decisions of theHouse of Lords in two cases—Liversidge v. Sir John Anderson *,1942 A. C. 206 ; and Oreene v. Secretary of State for Home Affairs 8,1942 A. C. 284. In the former case a person detained underRegulation 18B of the Defence Regulations 1939 sued the Secretary ofState in an action for damages for false imprisonment and in.the latterease a person similarly detained applied for a writ of habeas corpus.In both cases it was held that, if in the opinion of the Secretary of Stateit was necessary to make a Detention Order, a plenary discretion wasvested in the Home Secretary to decide whether he had reasonablegrounds in making the order and that it' is not open to a Court toconsider the correctness of such a decision.
Many of the judgments in the House of Lords cited with approval thisstatement of Goddard L. «t. in Greene’s case in the Court of Appeal:—
** I am of opinion that where on the return an order or warrant-which
is valid on its face is produced, it is for the prisoner to prove the facts
necessary to controvert it.”
This statement was cited with approval by Viscount Maugham inappeal (1942 A.C. at page 295). The judgment of many of the Lords ofAppeal in Greene's case expressed the opinion that indeed the productionof the detention order is sufficient without the need in addition to producean affidavit.
In the instant case therefore, in the words of Goddard L. J., the questionis whether the petitioner has proved facts necessary to controvert the- matter stated in the detention order itself, namely, that the PermanentSecretary was of opinion that it was necessary to make the detentionorder for the purpose specified in the order itself.
Counsel for the petitioner in his original address insisted that a mereverbal challenge of the good faith of the Permanent Secretary sufficed toraise as a justiciable issue before the Court the question whether the
1 [1942) A. O. 206.* (1942) A. O. 284.
H. If. Q. FERNANDO, C.J.—Birdaramani v. Rainavale
75
Permanent Secretary had indeed held the opinion stated in detentionOrder. In his address in reply however, learned Counsel conceded thatthe issue of good faith will not arise for consideration unless and until(I quote Counsel’s language) there is established a prima facie case thatthe Detention Order was made with an ulterior motive.
Counsel’s contention has been that an ulterior motive on the part ofthe Permanent Secretary is prima facie established by the facts whichappear from the affidavits of the petitioner, of the Permanent Secretaryand of 3rd respondent, who is an Assistant Superintendent of Policeof the Criminal Investigation Department. This ulterior motive, itwas contended, consisted of the purpose that the detainee he kept incustody in order that intensive investigations, including intensiveinterrogation of the detainee, be conducted into certain alleged offencesagainst the Exchange Control Act and the alleged smuggling of foreignexchange. At another stage of his argument, Counsel suggested thatthe detainee had been detained for a different ulterior purpose: because{so Counsel submitted) there was some suspicion that transactions bythe detainee and others may have directly or indirectly been connectedwith the provision of financial assistance for insurgent activities, thedetainee was taken and held in custody in order to facilitate furtherinvestigations regarding such transactions. In brief, the prima faciecase wihch Counsel claims is established is that the purpose of the detentionwas the facilitation of investigations and interrogations.
Let me say at once that an inference that the detainee was taken intocustody for the purpose for which Counsel contended readily arisesupon the facts which have been established. They are:—
The detainee was in fact arrested and taken into custody by an
Officer of the Criminal Investigation Department.
The order itself contains a direction by the Inspector-General
of Police that the detainee should be detained at the officeof the Criminal Investigation Department.
Immediately after the arrest, the officer of the Criminallnvestigation
Department searched the house of the detainee and the office ofthe Company of which he is the Managing Director, interrogatedthe Manager of the Company, and took books and documentsinto custody.
The detainee was interrogated at some length in his office and
thereafter at the office of the Criminal Investigation Department.
The detainee was kept in custody for more than two months at
the office of the Criminal Investigation Department.
In reply to an appeal made to the Honourable the Prime Minister
by the wife of the detainee, the Secretary to the Prime Ministerstated in a letter dated 20th September, 1971 “ that it wouldnot be possible to release Mr. Hirdaramani as yet, since it hasbeen reported that the necessary investigations are not yetover
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H. N. O- FERNANDO, C.J.—Birdaramani v Ralnavale
The fact that there had been, from the time of the arrest ol tne detainee,intensive interrogations and investigations is not controverted. Hencethe question which this Court has ultimately to decide is whether the factthat such investigations actually took place, affords a ground for adecision by this Court that the purpose which motivated the making ofthe Detention Order by the Permanent Secretary was prima facie thefacilitation of investigations and interrogations, and not prima facie thepurpose of preventing the detainee from acting prejudicially to publicorder or public security. If, of course, the inference which Counselfor the petitioner invites the Court to reach is the proper inference onthe available material, then this Court may call upon the PermanentSecretary for his answer.
All the judgments in Greene’s case referred to the fact that in thatcase the good faith of the Secretary of State had not been challengedor impugned. For example, Lord Macmillan said:—
“ The result, in my opinion, is that the production of the Secretaryof State’s order, the authenticity and good faith of which is in no wayimpugned, constitute a complete and peremptory answer to theappellant’s application. It justifies in law his detention in the absenceof any relevant challenge of its validity, and there is no such challenge.It necessarily follows that the Secretary of State had no need to submitan affidavit.” (A.C. 194**, p. 297)
Again in the case of Liversidge, Viscount Maugham observed:—
“ The result is that there is no preliminary question of fact whichcan be submitted to the courts and that in effect there is no appealfrom the decision of the Secretary of State in these matters providedonly that he acts in good faith." (A.C. 1942, p. 224)
Observations of this kind no doubt bear the implication that if thegood faith of a person making a detention order is in fact relevantlychallenged, then the Court may investigate and decide whether or notthe order was in fact made in good faith. But these observations weremade obiter, and presumably for that reason the judgments containno explanation as to the requisite substance of a “relevant challenge”of good faith, or as to the considerations sufficient to meet such a challenge.
There are however observations in the judgments which assist inthe consideration of matters which were left open in those judgments.For instance, Viscount Maugham stated:—
“ I will add that in the present case the circumstance that theSecretary of State is entitled to withhold from the court the groundsor some of the grounds oh which he formed his belief constitutesa further reason why, if there had been no affidavit by the Secretaryof State, the Divisional Court would have acted wisely in refusingthe application for the writ. It would be useless to attempt to examine■ the truth of the fact alleged in the order in a case where the fact relates
to the personal belief of the Secretary of State, formed partly at leaston grounds which he is not bound to disclose." (A.C. 1942, p. 296)
H. N. O. FERNANDO, C.J.—Birdaramani o. Rainavaie
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Lord Wright cited the opinion of Lord Denman C.J.:—
“ On a motion for a habeas corpus, there must be an affidavitfrom the party applying; but the return, if it disoloses a sufficientanswer, puts an end to the case: and I think the production of agood warrant is a ‘ sufficient answer (A.C. 1942, p. 306)
Lord Wright then proceeded to state his own opinion :—
“ I think that this applies to the present case. The order madeby the Home Secretary in the terms of reg. 18B speaks for itself.It is admissible as a public executive document to show a goodcause of the detention and needs no extrinsic justification. It is
good on its face unless and until it is falsified." (A.G. 1942, p. 306)
In Liversidge’s case Lord Atkin’s dissenting judgment refers to theconsequences of the majority decision from which he himself dissented :—
“The meaning, however, which for the first time was adoptedby the Court of Appeal in the Greene case and appears to havefound favour with some of Your Lordships is that there is no conditionfor the words “ if the Secretary of State has 'reasonable cause’ merelymean if the Secretary of State ‘thinks that he has reasonable cause’.*’The result is that the only implied condition is that the Secretaryof State acts in good faith. If he does that—and who could dispute
it or disputing it prove the opposite?—the minister has been givencomplete discretion whether he should detain a subject or not."
This observation “ who could dispute the good faith of the Secretary ofState or disputing it prove the opposite?’’ points forcefully to thedifficulty or even to the futility of a challenge that a person who hasstated an opinion did not in truth hold it.
In the present context it will not by any means suffice for the petitionerto establish that the Permanent Secretary was mistaken in thinking thatthe detention of the detainee was necessary for the stated purposes.Even a mistaken opinion will not invalidate a detention order, and want ofgood faith can be established only by proof positive that the Permanent.Secretary did not indeed form that opinion.
I must note that our Emergency Regulation Ho. 18 requires only thatthe Permanent Secretary should be of opinion that it is necessary todetain a person with a view to preventing him from acting prejudiciallyto public safety or the maintenance of public order. Viscount Maughamin the case of Liversidge pointed out that Regulation 18B requires theSecretary of State to have reasonable cause to believe two different things.In regard to the second thing, namely the belief in the need for thedetention of a particular person he made the following observation:—
“ But then he must at the same time also believe something verydifferent in its nature, namely, that by reason of the first fact, it isnecessary to exercise 'control over’ the person in question. To mymind this is so clearly a matter for executive discretion and nothing
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H. N. G. FERNANDO, C.J.—Hirdaramani v. Ratnavale
else that I cannot myself believe that those responsible for the OrderCouncil could have contemplated for a moment the possibility of the
action of the Secretary of State being subject to the discussion, criticismand control of a judge -in a Court of law."
“Just as the fact that the act of the Secretary of State acting in apublic office is prims facie evidence that he has been duly appointedto his office, so his compliance with the provision of the statute or the
Order in Council under which he purported to act must be presumedurdess the contrary is proved. There are scores of instances of suchpresumptions to be found in the books, none I think precisely inpoint, but many in which the principle was less necessary on thescore of publio convenience than the present (A.C. 1942, p. 225)
Lord Macmillan said thus :—
“ I turn now to the nature of the topics as to which the Secretaryof State is under the regulation to have reasonable cause of belief.They fall into two categories. The Secretary of State has to decide
whether the person proposed to be detained is a person of hostileorigin or associations or has been recently concerned in certainactivities, but he has also to make up his mind (2) whether by reasonthereof it is necessary to exercise control over him. The first ofthese requirements relates to matters of fact, and it may be that acourt of law, if it could have before it all the Secretary of State’sinformation—an important ‘if’—might be able to say whether suchinformation would to an ordinary reasonable man constitute areasonable cause of belief. But how could a court of law deal with the
question whether there was reasonable cause to believe that it wasnecessary to exercise control over the person proposed to be detained,which is a matter of opinion and policy, not of fact ? A decision on thisquestion can manifestly be taken only by one who has both knowledgeand responsibility which no court can share. As Lord Parker saidin The Zamora : “ Those who are responsible fair the national security-must be the sole judges of what the national security requires. It
would be obviously undesirable that such matters should be made thesubject of evidence in a court of law or otherwise discussed inpublic”—pp. 253-254. I
I have lettered A to G some passages in the citations from the judgmentsin Liversidge and in Greene. These passages indicate how narrow and evenpurposeless would be the scope of an investigation into the questionwhether the Permanent Secretary did in fact form the opinion stated inhis order. Apart from the grave difficulty which any Court would havein considering whether a person, who has stated a particular opinion,did in fact entertain that opinion, there is in this case a special feature notpresent in ordinary cases. In an ordinary case, if the fact that a statedopinion was held by a party iB challenged, the ordinary and best means ofascertaining whether in truth he formed that opinion is to consider
H. N. G. FERNANDO, C.J.—Hirdaramani v. Ratnavale
79
whether or not there existed facts which could have reasonably led himto form that opinion ; but in the instant case the Permanent Secretary isunable to disclose relevant facts, for the reasons stated by him in paragraph14 of his affidavit and also by the Attorney-General on behalf of the Crown.In the result an investigation by this Court as to the existence or non-existence of the Permanent Secretary’s stated opinion would have to bereached without consideration of matters which in common sense wouldhave a most important bearing on the question for decision. I find much,in the passages which I have italicized in support of my opinion that theinvestigation which Counsel for the petitioner invites us to hold would beone in which the Permanent Secretary may be virtually unable to defendhimself.-
Let me at the same time attempt to set out my own views, as to thenature of the facts, proof of which may perhaps justify this Court ininvestigating an allegation that an executive order was not made in goodfaith. If it is prima facie shown that an official who makes a particularexecutive order had an antecedent motive against the person affectedby the order, or had an antecedent bias in favour of a person benefitedby the order, then I think the Court may call upon the official to disprovethe existence of bias or to establish that his action was not influenced bybias. But even if such antecedent bias was to be shown in thecircumstances of the instant case, the special feature of the PermanentSecretary’s inability to disclose facts leading to the formation of hisopinion might well be a reason why a proper investigation cannot be held.
There have been rare- instances, such as orders for the compulsoryacquisition of land, in which a party is able to establish, by proof of theactual purpose for which the land is used or is to be used by the Crown,that the land was not in fact acquired for a public purpose. There maybe instances in which the truth of a reason or an opinion stated by anofficial in an executive order, can be disproved by evidence of statementsof the official containing some different reason or opinion, or tending toshow that the stated reason or opinion is incorrect or untrue. It is also -remotely possible that an opinion stated in an executive order is manifestlyabsurd or perverse.
Even if circumstances such as those I have suggested .may justify aprima facie inference of bad faith, no such, circumstances exist in thepresent case.
Counsel for the petitioner relied greatly on the judgment of LordAtkin in the case, of Eleko v. The Officer Administering the Government ofNigeria1 (1931 A. C. 662). In that case Their Lordships of the PrivyCouncil considered an order of the Officer Administering the Governmentof Nigeria restraining a person from entering a particular area. TheOrdinance which conferred the power to make the order provided that itcould be made only against a person (1) who was a native chief and (2)who had been deposed and (3) where there was a native custom requiring
• (1931) A. O. 662.
80
H. N. G. FERNANDO, C.J—Eirdaramani v. Ratnavale
him to leave the area. The judgment of the Privy Council ultimatelyordered that it was for the Government of Nigeria to establish by evidencethe existence of the three facts which I have just mentioned, in order tojustify the making of the order. Counsel’s proposition in the instantcase, was that just as much as the judgment in Eleko’a case cast upon theGovernment of Nigeria the onus of proving the objective facts which hadto exiBt before the restraining order was made against Eleko, thePermanent Secretary in the present case must establish the fact thathe held the opinion stated in the detention order made by him. Thejudgments in the House of Lords in the cases of Liversidge and Greenecontain only one reference to Eleko’a case; Lord Wright (1942 A.C. atpage 273) there stated in regard to Eleko’s case:—
“ It was a question of the extent of authority given by the ordinance.That depended on specific facts, capable of proof or disproof in aCourt of law, and unless these facts existed, there was no room forexecutive discretion. This authority has, in my opinion, no bearingin the present case, as I construe the powers and duties given by theregulation. There are also obvious differences between the ordinaryadministrative ordinance there in question and an emergency powercreated to meet the necessities of the war and limited in its operationto the period of the war. ”
The judgment of Scott L. J. in the Court of Appeal in Greene's case1(1941) 3 A.E.R. 104, also pointed to the clear distinction between thepower which the Government of Nigeria purported to exercise in Eleko’scase and the power of detention conferred by Defence Regulations 18B:—
“ It was held that the ordinance in question made each facta condition precedent to any exercise by the governor of the powerto deport, and that each condition had to be established either byadmission or proof before a court. On none of the three was thegovernor given by the ordinance any power of discretionary decision,,nor did any question of confidential information arise.” (1941) 3 A.EJR.at p. 112.
Situations in which the decision in Eleko’s case is properly applicable areillustrated by the case of Rex v. Ahson and others a. (1969) 2 A.E.R. 347.
The Commonwealth Immigrants Act 1962 gave an Immigration Officeran absolute discretion to refuse to a Commonwealth citizen admission intothe United Kingdom, but this power of refusal was subject to certainconditions set out in the Act. These conditions were that a personentering the United Kingdom must be examined by an ImmigrationOfficer within the period of twenty-four hours from the time when helands in the United Kingdom, and that a notice refusing admission“ shall not be given to any person unless he has been examined ” withinthe said period. The Court of Appeal in England, following the decisionin Eleko’s case held that, when it is claimed that an Immigration Officer
1 {1941) 3 A. B. R. 104.-(1969) 2 A. B. R. 347.
H. N. O. FERNANDO, C.J.—Hirdaramani v. RcUnavale
81
had no jurisdiction to refuse admission to an immigrant, it was for theExecutive to prove that the jurisdiction in fact existed, and accordinglyto prove affirmatively that the immigrant had in fact been examined bythe Immigration Officer within the period of 24 hours from the time ofhis landing in the United Kingdom.
Both in the case of Eleko and in that of Ahson and Others,the justification for the exercise of statutory power depended on the actualexistence of objective facts, and if those facts did not exist, the exerciseof the statutory power was clearly unlawful. Such a situation is quitedifferent from one in which a statutory power may be exercised if someauthority is satisfied that certain Tacts did exist; and it is far remotefrom the situation in the instant case and from the situation in the cases ofGreene and Liversidge in which the statutory power can be exercised ifsome authority is of opinion that it is necessary to exercise that power.
Consideration of the English decisions I have examined shows thatthere are really three different situations:—
Where a power cannot be exercised unless certain physical facts
exist. In such a case if the validity of the exercise of the poweris disputed, then the executive must prove that the requisitefaots actually existed.
Where a power may be exercised by some authority if he is satisfied' of the existence of certain facts. In such a case a Court can
inquire into the circumstances, in order to ascertain whetherit was reasonable for the authority to be satisfied of theexistence of the facts.
Where, as in the instant case, the power can be exercised merely
because of an opinion that it is necessary to exercise it. Insuch a case the mere production of the instrument whereby thepower is exercised concludes the matter, unless good faith isnegatived.
In regard to the third category, it is no doubt true that the existenceof a particular state of mind is a question of fact, in the sense that it isnot a question of law ; but ascertainment of the existence of a state ofmind surely involves considerations and difficulties which do not enterinto the ascertainment of the existence of pure physical faots.
I am satisfied for these reasons that the cases of Eleko and of Ahsonand Others are of little assistance to the petitioner.
Let me now consider whether the inference admittedly open Upon thefacts on which the petitione* has relied is to be preferred by the Court tothe presumption whioh prims facie exists that the Permanent Secretarydid form the opinion stated in the Detention Order.
Counsel for the petitioner subjected the affidavit of the PermanentSecretary to an extremely critical examination. He contended thatparagraph 9 of the affidavit, which purports to state the ground upon
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H. N. G- FERNANDO, C.J.—Btrdaramani v. Ratnavale
which the Permanent Secretary formed the opinion of the necessity tomake the Detention Order, was vague and uncertain, and evenmeaningless. In Counsel's submission, this assertion of a vague andmeaningless ground was in itself an indication that the making of theOrder was influenced by an intention to facilitate an investigation andinterrogation, and not by the opinion stated in the Order itself.
Consideration of this submission and of matters whiob were urged insupport of it has led me to the conclusion that it is based on certainassumptions which are not tenable in the circumstances of this case.
As to the meaning of the statement in paragraph 9, it is not aB obscureas Counsel thought. The paragraph states that the detainee came to besuspected of having obtained large sums of money in Ceylon by the illegalsale of foreign exchange abroad ; that this payment abroad appeared tobe inextricably connected with other transactions consisting of thesmuggling of foreign exchange, and that statements recorded in the courseof investigations into the other transactions appeared to indicate thatthey were connected directly or indirectly with the affording of financialassistance for insurgent activities. Upon suoh grounds, it Would not beunreasonable or irrational for the authority responsible for public securityto form the opinion that the activities of the detainee and the otherpersons engaged in illegal currency transactions may have been, and ifcontinued may be, directly or indirectly of assistance to insurgents.
One assumption involved in Counsel’s submission is that the PermanentSecretary had an obligation to disclose in his affidavit the grounds upon 1which he formed the opinion requisite for the making of the DetentionOrder. But Counsel himself conceded towards the end of the hearingthat at the least a prima facie case of bad faith has first to be establishedby the petitioner, before there could be an onus on the PermanentSecretary to establish his good faith. Thus, at the stage when the affidavitwas filed, there was no obligation on the Permanent Secretary to Btate thegrounds of his opinion, even if he could do so without prejudice to theinterests of security. No adverse inference can therefore be drawn fromthe circumstance that the grounds actually stated in the affidavit maybe vague or incomplete.
Counsel argued that because paragraph (5) of Regulation 18 requiresan Advisory Committee to inform a detainee of the grounds of his detention,the Permanent Secretary should be able to disclose the grounds to thisCourt. His failure to make an adequate disclosure is, so Counsel argued,a sign of bad faith.There is in my opinion more than one misconception
upon which this argument depends.
In the first place, paragraph (5) of Regulation 18 does not require thegrounds for detention to be stated unless the detainee has first himselfmade objections to an Advisory Committee. In the instant case, we arenot aware that objections were made to an Advisory Committee by thisdetainee, and even if they were in fact made, we are not aware of the
H. IT. O. FERNANDO, C.J.—Hirdaramani v. Rainavalc
88
grounds which the Advisory Committee thereupon stated to the detaineein terms of paragraph (5). Even if there be substance in Counsel’scontention that the vagueness or insufficiency of the grounds stated to adetainee by an Advisory Committee can constitute a reason for suspectingbad faith in the making of a Detention Order, we are not called upon inthis case to consider any grounds stated by an Advisory Committee.
The contention of Counsel to which I have lastly referred dependedlargely on certain decisions in India concerning Orders for preventivedetention. The^ionstitution of India, in declaring the fundamental rightof personal liberty, contains two important fundamental provisions :—
Art. 21.
No person shall be deprived of his life or personal liberty exceptaccording to procedure established by law.
Art. 22 (1).
No person who is arrested shall be detained in custody withoutbeing informed, as soon as may be, of the grounds for such arrestnor shall he be denied the right to consult, and to be defended by, alegal practitioner of his choice. .
Art. 22 (5).
When any person is detained in pursuance of an order made underany law providing for preventive detention, the authority makingthe order shall, as soon as may be, communicate to such person thegrounds on which the order has been made and shall afford him theearliest apportunity of making a representation against the order.
In the case of State of Bombay v. Atma Ram1 (A.I.R. 1951, S.C. 157) theSupreme Court of India observed thus :—
“ Preventive detention is a serious invasion of personal liberty andsuch meagre safeguards as the Constitution has provided against theimproper exercise of the power must be jealously watched and enforced
by the Court We are of opinion that this Constitutional
requirement must be satisfied with respect to each of the groundscommunicated to the person detained, subject of course to a claim ofthe privilege under clause (6) of Article 22. That not having beendone in regard to the ground mentioned …… the petitioner’s detention
cannot be held to be in accordance with the procedure established by lawwithin the meaning of Article 21."
These observations were approved in a later case reported in A.I.R. 1957,S.C. 164. In my understanding, the principle recognized by the SupremeCourt of India is that if the making of a Detention Order iB not accompaniedby a statement of grounds which satisfies the requirements of Article 22 (6),then the Detention Order itself is vitiatedforthereasonspecified in Article21, namely that the detention is not in accordance with the procedure
1 A. I. S. (1951) S. O. 167.
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H. N. G. FERNANDO, C.J.—Hirdaramani v. Ralnavale
established by law. In other words, a Detention Order in India, which isnot accompanied by a due statement of the grounds of detention is voidas being in breach of Article 21 of the Constitution.
It is now apparent that any resemblance between the purelyconditional requirement in our Regulation 18 for a statement of groundsby an Advisory Committee, and the peremptory Constitutional requirementcontained in Article 22 of the Constitution of India, is only superficial,and has led to a serious misconception. It suffices to add that anyomission of the Permanent Secretary (even if there be such an omissionin the instant case) to furnish grounds for detention in an affidavit, whichneed not have been filed at the stage when he filed it, cannot be comparedwith the failure on the part of a detaining authority in India to complywith a provision of the Constitution designed for the protection of afundamental right.
This Court cannot ignore the fact that there had been early this year anactual armed insurrection in Ceylon, in an attempt to wrest power byforce, that this attempt was put into action in numerous areas, that ithad to be resisted by the Armed Forces of the State with foreign assistance,and that many lives were lost during these operations. When suchconditions actually prevail, considerations of liberty have necessarily tobe outweighed by the interests of the security of the State. And whenaction is taken by the authority entrusted with the protection of thoseinterests, in purported pursuance of Emergency powers, such action doesnot fall to be tested by the Courts with the meticulous care and anxietyordinarily devoted to cases of alleged infringements of personal liberty.The statement of Lord Finlay L.C. in Rex .v. Halliday1 (A.C. 1917, p. 269)makes this clear :—
“It seems obvious that no tribunal for investigating the questionwhether circumstances of suspicion exist warranting some restraintcan be imagined less appropriate than a court of law.”
As already stated, the case for the petitioner receives its strongestsupport from the undoubted fact that the arrest of the detainee wasaccompanied and followed by investigations and interrogations by theCriminal Investigation Department and by the seizure of books anddocuments from his home and the office of his Company. But thequestion is whether the fact that such investigations and interrogationsdid take place controverts the truth of the opinion stated in the DetentionOrder.
Counsel made much of the circumstance that the arrest andinterrogations were made by the Criminal Investigation Department.But I see nothing significant in that circumstance ; the Court is awarethat the Criminal Investigation Department has ordinarily to be responsiblefor investigations of matters affecting the security of the State, and
1917 A. C. 269.
H. N. Q. FERNANDO, CUT.—Hirdaramani v. Ratnavoie
85
. that questioning of detainees at the office of the Criminal InvestigationDepartment was conducted in 1966 when a political conspiracy wassuspected.
Again, regulations 51 and 52 of the Emergency Regulations expresslyprovide for the questioning of persons detained and for the removalof such persons to appropriate places for such questioning. If a particul vrindividual is detained on suspicion that his activities had been or maybe prejudicial to the public safety or public order, it is reasonable andnatural that investigations and interrogations must follow concerninghis own involvement in such activities, and the involvement of hisassociates. Indeed it would be strange if a detention is not succeededby investigations of this nature.
I have referred in the course of this judgment to some of the avermentscontained in the affidavit of the Permanent Secretary, and I have observedthat in accordance with the provisions of Cap. 24 of the Civil ProcedureCode, the Court is entitled to take into account averments in such anaffidavit.
In the instant case, as Viscount Maugham stated in Liversidge,compliance by the Permanent Secretary with the provision of the Statuteunder which he purported to act must be presumed unless the contraryis proved. The Court had therefore to commence by presuming thegood faith of the Permanent Secretary. That being so, the materialin paragraph 9 of the Permanent Secretary’s affidavit has served merelyto explain a matter which was in any event covered by the presumption.
Even if the fact that intensive investigations and interrogations didtake place, could have led the Court to an inference that the DetentionOrder was made for an ulterior purpose, the affidavit serves to explainwhat had in the first instance to be presumed from the order itself,namely that the Permanent Secretary entertained some suspicion thatthe activities of the detainee may directly or indirectly be connectedwith the prevailing conditions of insurgency.
The only other averment in the Permanent Secretary’s affidavit whichI take into consideration is that in paragraph 12, which refers to anadmission by the detainee that he had paid a sum of Rs. 1,729,000/-to certain foreign nationals in Ceylon in consideration of payments offoreign currency illegally made abroad to the credit of the detainee.With regard to this matter, the petitioner himself alleged, in paragraph15 of his affidavit, that officers of the Criminal Investigation Departmenthad questioned the Manager of Hirdaramani Limited with a view toascertaining whether the Company had any transactions with a foreignFirm carrying on business in Colombo. Accordingly there is materialin the petitioner’s own affidavit to indicate that suspicion existed thata very large sum of money has been made available illegally by thedetainee to foreign nationals, and the averment in the PermanentSecretary’s affidavit serves only to explain a matter already referred toby the petitioner. The matter itself is of the utmost gravity and cannot
86
H. N. G. FERNANDO, C.J.—Hirdaramani v. Ratnavale
be compared to minor infringements of our currency laws. If a foreignFirm did not choose to exchange foreign currency in this country throughnormal banking channels, there might surely be justification for thesuspicion that there was an intention to conceal their acquisition ofCeylon rupees, and a further intention to apply the funds thus acquiredto secret purposes.
Lastly the Permanent Secretary has stated on oath in his affidavitthat he acted in good faith because he had formed the opinion expressedin the Detention Order. He has also Btated on oath, what has beenrepeated by the Attorney-General in Court, that the material uponwhich he formed his opinion cannot be disclosed in the public interest.These statements relate to matters the correctness of which the Courtcould ordinarily assume. In addition, however, the Permanent Secretaryhas stated that he is prepared to make the relevant material availablefor the perusal of the Court. Although we did not call for the disclosureof this material, I must regard the offer of disclosure as a mark of goodfaith.
I hold that the matters on which the petitioner has relied do not sufficeto rebut the presumption that the Detention Order was made becausethe Permanent Secretary formed the opinion which is stated in the order.The preceding part of this judgment has disposed of the grounds uponwhich the application for the writ of habeas corpus was made by thepetitioner. But as this has .been in the nature of a test case it is necessaryto consider certain arguments of the Attorney-General to the effectthat the Court has no jurisdiction to inquire into the validity or goodfaith of a Detention Order which is valid in its face and applicable to aparticular detainee.
The Attorney-General firstly relied for this argument on b. 8 of thePublic Security Ordinance, which contains the following provision:—
“ No emergency regulation, and no order, rule or direction made or
given thereunder shall be called in question in any court."
Similar provision, which in my opinion is apparently merely repetitive,is contained in paragraph (10) of Regulation 18 of the EmergenoyRegulations.
In the case of Smith v. East EUoe Rural District Council1 (1956 A.C. 736),the House of Lords considered two provisions of an Act relating to the'compulsory acquisition of land. Paragraph 15 of a Schedule to the Actprovided that a person desiring to question the validity of a compulsorypurchase order may within six weeks from the date of the order make anapplication to the High Court in respect of the order. Paragraph 16provided that, subject to the provisions of paragraph 15, a compulsorypurchase order shall not be questioned in any legal proceedings whatsoever.The majority of the Court held that after the expiration of the time limit
1 (me) a.o. 7?e.
H. N. G. FERNANDO, C.J.—Uirdaramani v. Ralnavale87
specified in paragraph 15, the plain prohibition in paragraph 16 precludedthe questioning of the validity of a compulsory purchase order, becausethat paragraph ousted the jurisdiction of the Court. The majorityrejected the argument that paragraph 16 had no application if acompulsory purchase' order had been made in bad faith.
The correctness of the decision in the Elloe case just cited was howeverdoubted in the judgments of the House of Lords in the case of AnisminicLimited v. Foreign Compensation Commission1 (1969) 2 A.C. 147. In thiscase there was a provision similar to that contained in s. 8 of the PublioSecurity Ordinance providing that the determination of a CompensationTribunal shall not be questioned in any Court; but a majority of the Houseof Lords held that such a provision did not oust the power of the Courts to
inquire into the question whether the Tribunal had acted within its jurisdic-
tion.In view of the apparent conflict between two decisions of the House
of Lords on the construction of provisions corresponding to s. 8 of thePublic Security Ordinance, I find myself unable to reach with certaintya firm opinion as to the scope of s. 8. But I will assume, on the authorityof the Anisminic case, that s. 8 has not achieved the purpose claimed forit by the Attorney-General.
The Attorney-General’s argument, that the Court has.no power toinquire or decide whether or not the Detention Order was made for anulterior purpose, was supported on yet another ground. He referredfirstly to a. 5 of the Public Security Ordinance, which empowers theGovernor-General on the recommendation of the Prime Minister to makesuch Emergency Regulations as appear to him to be necessary or expedientin the interests of public security and the preservation of public orderand the suppression of mutiny, riot or civil commotion, or for themaintenance of supplies and services essential to the life of the community;and in particular to the provisions of s. 5 (2) (d) that emergency regulationsmay provide for amending any law or for suspending the' operation ofany law. In pursuance of these powers, Regulation 55 of the EmergencyRegulations provides that “ Section 45 of the Courts Ordinance shall notapply in regard to any person detained or held in custody under anyemergency regulation.”
Counsel for the petitioner did not enter any challenge of the vires ofRegulation 55. The Regulation purports to exclude the operation ofa. 45 of the Courts Ordinance in the case of any person who is detained orheld in custody under the Emergency Regulations, and thus to precludea Court from issuing a Writ of habeas corpus in any such case.
The contention of Counsel for the petitioner in regard to the constructionof Regulation 55 was based substantially on the decision in the Anisminiccase to which I have already referred. That decision, which construed aprovision that a determination* of a Compensation Tribunal shall not be
1 (196$) 2 A. O. 147.
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H. N. G. FERNANDO, C.J.—Birdaramani v. Batnavale
called in question, was to the'effect that the provision applied only to avalid determination, but not to a determination by which the Tribunalhad misconstrued the statutory definition of its own jurisdiction.
I propose to consider only the judgment in this case of Lord Wilberforce'which Counsel for the petitioner rightly praised for its clarity andforcefulness.
The judgment commences with emphasis on the circumstance that therehad been a determination by a tribunal:—
“ In every case, whatever the character of a tribunal, howeverwide the range of questions remitted to it, however great the permissiblemargin of mistake, the essential point remains that the tribunal has &derived authority, derived, that is, from Btatute : at Borne point, andto be found from a 9onsideration of the legislation, the field withinwhich it operates is marked out and limited. There is always an area,narrow or wide, which is the tribunal’s area ; a residual area, wide ornarrow, in which the legislature has previously expressed its will and
into which the tribunal may not enter Although, in
theory perhaps, it may be possible for Parliament to set up a tribunalwhich has full and autonomous powers to fix its own area of operation,that has, so far, not been done in this country. The question, what isthe tribunal’s proper area, is one which it has always been permissibleto ask and to answer, and it must follow that examination of its extentis not precluded by a clause conferring conclusiveness, finality orunquestionability upon its decisions. These clauses in their naturecan only relate to decisions given within the field of operation entrustedto the tribunal.”
Lord Wilberforce thereafter referred to several earlier cases whichinvolved the construction of statutes under which inferior Courts ortribunals or bodies have to exercise the power of deciding facts. In suchcases if a certain Btate of fact must be shown to a tribunal to exist, beforethe tribunal can exercise its jurisdiction, then the ascertainment of theproper limits of the tribunal’s power of decision is a task for the Court(Farwell L. J. 1910, 2 K. B. 859 at p. 880).
In considering the application of the principle recognized in theAnisminic case, the fact that the House of Lords was there concernedwith the jurisdiction of a tribunal is worthy of repetition. But it does notfollow that this principle is applicable in testing the validity of everyexecutive order. Underlying many of the submissions of counsel for thepetitioner in the instant case was his impression that an executive orderis “ inferior ” to a judicial or quasi-judicial order, and that the formeris therefore even more susceptible to review by the Courts than the latter.The error in Buch an impression, particularly in relation to an order
H. N. G. FERNANDO, C. J.—Hirdaramani v. RatnavaU
89
made under a provision like Regulation 18, is noted in the judgment ofScott L. J. in the Court of Appeal in Greene's case1 (1941, 3 A. E. R. 104at page 109):—
“ The 'whole regulation deals with a topic which is necessarily of ahighly confidential character. It invites a decision, at least as apreliminary to action, by an executive Minister of the Crown whooccupies a position of the utmost confidence, who has at his disposalmuch secret information which ought not to be made public—above allduring a war—who is under a duty to keep that information and itssources secret, and finally, who cannot be compelled, in any court todivulge what he considers ought not, in the national interest, to bedivulged. All the King's courts recognise that inhibition and enforceit. The arguments which have been advanced in some of the casesrest expressly or impliedly on a contention that the Home Secretary,in making an order, is exercising a quasi-judicial function as if he hadto hear both sides before coming to a decision on the preliminaryissue. That contention is, in my view, wrong. His capacity is purelyexecutive, as it is when deciding whether or not to deport an alien,as was pointed out by the Earl of Reading, L. C. J., in R. v. LemanStreet Police Station Inspector, Ex p. Venicoff, and I adopt his words,at p. 80:
*the Home Secretary is not a judicial officer for
this purpose, but an executive officer bound to act for the publicgood, and it is left to his judgment whether upon the facts beforehim it is desirable that he should make a deportation order. Theresponsibility is his’.”
These observations were approved in the House of Lords in Liversidge.Lord Wright also commended the “ wise words ” of Lord Finlay in
R.v. Holliday a (1917 A.G. 260) that the rule as to construing penalstatutes in favour of the liberty of the subject has no reference to a casedealing with an executive measure by way of preventing a publiodanger. Lord Wright himself added:—
“ It is essentially a matter of expert and instructed conclusion orsuspicion whether or not the acts in which the subject has beenooncemed were such as to be prejudicial to the public safety or defenceof the realm. Even more obviously is the belief or decision that byreason thereof it is necessary to exercise control over him a matter ofexecutive discretion. It is clear that the control is preventive, notpunitive, and that the action is not judicial, but executive. Theregulation places on the Secretary a public duty and trust of the gravestnational importance. As I understand the regulation, it is a dutywhich he must discharge on his own responsibility to the utmost of hisability, weighing on the one hand the suspect’s right to personal liberty
(1911) 3 AJBJt. 104 at 109.* (1917) A.O. 960.
*12-Volume LXXV
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H. N. G. FERNANDO, C.J.—Birdaramani v. Ratnavale
and on the other hand the safety of the state in the dire national perilin which during this war it has stood and stands.” 1941, 3 A. E. R.at p. 375).
The observations which I have just cited confirm my opinion that thedecision in the Anisminic case has no bearing on the construction to beplaced on Regulations 18 and 55 of our Emergency Regulations. Ineed only add that Regulation 55, in expressly excluding the power ofthis Court to issue the Writ of Habeas Corpus, has done something which(in the words of Lord Wilberforce) “ has so far not been done ” in England.
What then was the purpose of Regulation 55, the validity of which(as I have already stated) was not challenged in this case ? We have hereto construe not an enactment of Parliament and the intention of 155Members, but a Regulation which has been validly made by the Governor-General on the recommendation of the Prime Minister, and thereforeit is the duty of the Court to ascertain the intention of the Prime Ministerin recommending the enactment of Regulation 55 and the intention of theGovernor-General in enacting it.
The precise question which then arises is whether the intentionunderlying Regulation 55 was that the writ of habeas corpus will not liein a case in which a person is detained because the Permanent Secretaryhas made an order for his detention. In this context it is in my opinionsignificant that only one officer is authorised by Regulation 18 to makea Detention Order, and that this one officer serves directly under thePrime Minister herself. It is also significant that Regulation 18 itselfrequires a- detainee to be informed of his right to make representationsto the Prime Minister ; this is presumably in order that the Prime Ministerwill consider any such representations, and that in an appropriate casesuch representations can result in the release of the detainee. Section51 (2) of our Constitution provides that each Permanent Secretary shall,subject to the general direction and control of his Minister, exercisesupervision over the Department or Departments in the charge of hisMinister. I have no doubt whatsoever that if, upon representationsmade by a detainee, the Prime Minister directs that he should be releasedfrom detention, the Permanent Secretary will in fact authorise the release.
Every Permanent Secretary is appointed by the Governor-Generalon the recommendation of the Prime Minister. It is to me unthinkablethat the Prime Minister would recommend for appointment os her ownPermanent Secretary a person, other than one in whom she reposes theutmost confidence. I cannot imagine that the Prime Minister wouldhave recommended the conferment of the power to make Detention Orderson the Permanent Secretary, without the confidence that he will exercisethat power in good faith, and that if any control of the exercise of thatpower were considred necessary that control is vested in the PrimeMinister herself by a. 51 of the Constitution.
H. N. O. FERNANDO, C.J.—Birdaramani v. Batnavale
91
My opinion for these reasons is that the intention with whicftjs. 65 wasenacted depended upon a presumption that the Permanent Secretary willact in good faith when he makes a Detention Order, and that accordinglythere would be no need to permit the Courts to consider the only possibleissue which can be raised when a Detention Order valid on its face isproduced before the Courts, namely the issue of good faith. It seems tome that to attribute any different intention to the Prime Minister inrecommending the enactment of Regulation 65 and to theGovernor-General who then enacted it would be arbitrary and contraryto common sense.
Lord Atkin in his dissenting judgment in the Liversidge case statedthat in England the laws are not silent in times of war. With the utmostrespect I agree that the laws are never silent, but Regulation 55 is itselfa law which surely was intended to speak. If the intention was that itshould speak to the effect which suggests itself to me so obviously, thenthe Courts should not flout that intention. The only alternative is thatfor which Counsel for the petitioner contended, namely that Regulation55 achieves nothing at all. That is an alternative which a Court mustnot adopt, save upon irresistible compulsion.
Counsel for the petitioner argued that, even if there had been anintention to prevent the Court from inquiring into the good faith of thePermanent Secretary, Regulation 55 had failed to carry out that intention;the expression “ any person detained or held in custody under anyemergency regulation ” refers, in Counsel’s contention, only to a personvalidly detained or held in custody and NOT to a person actually detainedor held in custody.
Counsel pertinently referred to the case of a person being arrested andheld in custody in purported pursuance of Regulation 19, which empowersany police officer or any member of the armed forces to arrest and detain" any person who is committing or has committed or whom he hasreasonable grounds for suspecting to be concerned in or to be committingor to have committed any offence under any Emergency Regulation.”
Counsel urged with much justification that Regulation 55 could nothave been intended to oust the jurisdiction of the Courts in the case ofan arrest which is not validly made under Regulation 19. There isfirstly the fact that Regulation 19 confers powers of arrest and detentionon every police officer and every member of the armed forces ; that being soit would be quite unreasonable to assume that Regulation 55 was intendedto oust the jurisdiction in Habeas Corpus to inquire into the validity offan arrest purporting to be made under Regulation 19.
More importantly, the form and subject-matter of Regulation 19 issuch that an arrest would be lawful, only if facts which justify the arrestdo actually exist, or if there are reasonable grounds for suspecting thatsuch facts actually exist. The language of Regulation 19 clearly revealsan intention that an objective test has to be applied in determiningwhether an arrest is or is not valid, and the consequent intention that
92
H. N. G. FERNANDO, C.J.—Hirdaramani v. Ratnavale
the courts will apply that test and determine whether the arrest wasvalid. When therefore Regulation 55 purports to ouBt the jurisdictionof this Court to inquire into the validity of such an arrest, thereimmediately arises the question whether there was indeed an intentionin Regulation 55 to over-ride the intention revealed in Regulation 19.In my opinion, that question has to be answered in the negative; firstly,because the intention revealed in Regulation 19 must prevail unless itis negatived in the clearest possible terms; and secondly, becausea Court must hesitate to attribute to the Prime Minister and to theGovernor-General the manifestly unreasonable intention that any andevery arrest by any member of the Police or Armed Services mustnecessarily be accepted as valid by the Courts, if such member merelyasserts that he acted under Regulation 19.
It is of interest in this connection to refer to what is probably the firstinstance, when it was sought in Ceylon to exclude the operation of s. 45of the Courts Ordinance in relation to the exercise of Emergency powers.The Emergency Regulations of 1958 (Gazette No. 11,376 of June 27,1958) contained in Regulation 29 (1) the same power to make a DetentionOrder as is now conferred by the current Regulation 18. Paragraph (10)of the former Regulation 29 provided as follows:—
“ Section 45 of the Courts Ordinance shall not apply in regard to
any person detained in pursuance of an order made under paragraph (1)
of this regulation.”
Thus the intention of the former Regulation was to oust jurisdictiononly in relation to detention orders made by the Permanent Secretary,and not in relation to arrests and to custody in consequence thereof. Thedraftsman of the present Regulation 55 has altered the language of theformer Regulation 29 (10) by adding the words “ held in custody ”.I much doubt whether this addition sufficed to displace the intentioninherent in the present Regulation 19 that the lawfulness of an arresthas to be determined by the Courts by the application of an objective test.
When, however, the context of Regulation 18 is compared with thatof Regulation 19, independently of Regulation 55, significant distinctionsare clear. The power of detention is conferred by Regulation 18 ona single officer of high rank, who is required by the Constitution to actunder the immediate direction and control of the Prime Minister ;whereas the power of arrest under Regulation 19 iB conferred on literallythousands of members of the Services who are subject only to sopja remotecontrol. Next, it had to be conceded that a Court has no power to inquireinto the reasonableness or validity of the opinion which induces themaking of a Detention Order under Regulation 18 ; whereas the languageof Regulation 19 clearly predicates that the Courts will apply an objectivetest in determining whether or not an arrest referred to in that Regulationis valid. Further, Regulation 18 gives to a detainee a statutory right ofrecourse to.the Prime Minister; whereas the right of course implicit inRegulation 19 is to the Courts.
G.P.A. SILVA, S.P.J.—Hirdaramani v. Ratnavaie
03
In view of these differences which distinguish Regulation 18 fromRegulation 19, my opinion that Regulation 55 could not have beenintended to cover cases of arrests under Regulation 19, does not justifythe further opinion that there was also no intention in Regulation 55 tocover Detention Orders made by the Permanent Secretary. The latterintention is so manifest and so reasonable that imperfections in thedrafting of Regulation 55 cannot be permitted to defeat that intention.
In the opinion of my brother Samerawichrame, a possible purpose torwhich the draftsman introduced Regulation 55 was “ to preclude thepossibility of a review by a Court of a valid Detention Order.” Buteven if the draftsman’s purpose was to offer a superfluous and evenpresumptuous instruction to this Court, his purpose is not in fact achieved:for, if it be correct that the Court does have power to review an invalidDetention Order, the Court must inquire into every Order which ischallenged and decide whether or not it is invalid. Indeed, in this case,my brothers and I have in fact reviewed what we have decided to he aperfectly valid Detention Order.
I hold that Regulation 55 deprived this Court of the power to reviewthis Detention Order. I have myself reviewed the Order for two reasons.Firstly, because my brothers do not share my opinion as to the effect ofRegulation 55. Secondly because an insistent and apparently confidentchallenge to the good faith of the Permanent Secretary was made in thiscase, and I consider that in the public interest this Court should pronounceupon the merits of that challenge; I believe the learned Attorney-Generalthought likewise.
I must repeat that the arguments of Counsel for the petitioner did notraise for consideration in this case the question whether Regulation 55is vUra vires of the enabling power, or the question whether the Regulationis inconsistent with the Constitution or with powers directly or indirectlyconferred on the Courts by the Constitution. But, on the assumptionthat Regulation 65 is valid and effective, I am compelled to the conclusionthat the jurisdiction conferred by s. 45 of the Courts Ordinance is oustedby Regulation 55, in the case of a Detention Order purporting to be madeby the Permanent Secretary under Regulation 18. On this ground thepetitioner’s application has to be dismissed.
Alternatively, even if the jurisdiction of this Court is not ousted byRegulation 55, this application has to be dismissed on the ground thatthe petitioner has failed to establish a prim a facie case that the DetentionOrder was made for an ulterior purpose.
P. A. Silva, S.P.J.—
I agree that the Application for a writ should be dismissed.
It is not often that the Courts are called jpon to decide questions suchas the one that has arisen before us where a subject complains againstrestraints upon his freedom resulting from the exercise of executive
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O. P. A. SELVA, S.P.J.—Birdaramani v. Ratnavale
discretion. Such a situation invariably arises either during a war orduring any other state of emergency declared by the Government. Evenduring a war or state of emergency, no less than in normal times, it is inthese courts that the subject will seek refuge against any unjustifiableencroachments on his liberty and it is the duty of the courts to entertainhis complaint and inquire into it with meticulous care. In thedetermination of the problem, however, the extraordinary conditions ofa varied character that prevail during times of emergency compel thecourt to steer a course which preserves the fundamental freedom of thesubject without overlooking at the same time the paramount considerationof the safety of the state. The latter consideration imposes on a courtthe unusual burden of maintaining an impeccable balance between theliberty of the citizen and possible danger to the State often involvingthe court’s entry into areas of uncertainty due to lack of informationwhich the court well knows is available to the executive but cannotfor obvious reasons be given publicity in a court of law. Theseconsiderations have given rise to judicial pronouncements by eminentjudges that are even conflicting in appearance but are reconcilable onreflection and tend to tilt the balance in favour of the executive when indoubt. This principle is based on the implied condition that the officerto whom the power to restrict the liberty of the subject is confided in theinterest of the security of the state acts in good faith. I wish to illustratethis principle from extracts of two judgments of Lord Atkin. InEshugbayi Eleko v. Officer Administering the Government of Nigeria,lhe said :—'
“ Their Lordships are satisfied that the opinion which has prevailedthat the Courts cannot investigate the whole of the necessary conditionsis erroneous. The Governor acting under the Ordinance acts solelyunder executive powers, and in no sense as a Court. As the executivehe can only act in pursuance of the powers given to him by law. Inaccordance with British jurisprudence no member of the executivecan interfere with the liberty or property of a British subject excepton the condition that he can support the legality of his actionbefore a court of justice. And it is the tradition of British justice thatjudges should not shrink from deciding such issues in the face of theexecutive. ”
In Liversidge v. Andersona, he made the following observation in hisdissenting judgment which reflected his view in a case where the subjectivetest was applicable :—
“ The result is that the only implied condition is that the Secretaryof State acts in good faith. If he does that—and who could disputeit, or, disputing it, prove the opposite ?—the Minister has been givencomplete discretion as to whether or not he should detain a subject",
*(1941) 3 A.EM. 338.
1 (1931) A.O. 862 at 870.
G. P. A. SILVA, 8.P.J.—Hirdaramani v. Ratnavale
05
Regulation 18 (1) (a) of the Emergency (Miscellaneous Provisions andPowers) Regulations No. 6 of 1971 made under section 5 of the PublicSecurity Ordinance provides :—
“ Where the Permanent Secretary to the Ministry of Defence andExternal Affairs is of opinion with respect to any person that, with aview to preventing such person from acting in any manner prejudicial
to the public safetyit is necessary so to do, the Permanent
Secretary may make order that such person be taken into custody anddetained in custody. ”
It is in pursuance of the powers vested in him by this Regulation thatthe Permanent Secretary to the Ministry of Defence and External Affairsissued an order that Mr. P. Bhagavandas Hirdaramani be taken intocustody and detained. This order was issued to Mr.Wettasinghe, AssistantSuperintendent of Police, who accordingly took the corpus into custodyon 1st September, 1971 and detained him at the C. I. D. Headquarters,a place authorised by the Inspector General of Police by virtue of hispowers under Regulation 18 (3) of the said Regulations.
Although the original contention of counsel for the petitioner wasthat a verbal challenge aimpliciter by the petitioner of the absence ofgood faith on the part of the Permanent Secretary was sufficient for thecourt to call upon the Permanent Secretary to prove his good faith, helater conceded that it was necessary for the petitioner to establish aprima facie case that the detention order was not made in good faith.He further submitted that in order to succeed in establishing the absenceof good faith it would be sufficient for the petitioner o show that inmaking the order for detention he had an ulterior purpose, the purposesuggested in this case being to facilitate the investigation of illicitdealings in foreign exchange. Counsel was unable to point to any specifiodirect evidence on which he could rely to establish this prima facie casebut confidently asserted that there was a number of circumstances theinferences from which led to the irresistible conclusion of this ulteriorpurpose being the cause of the order for detention.
The following were the circumstances from which he sought supportfor his contention:—
The duty of carrying into effect the detention order was entrusted
to an officer of the C. I. D. even though the regulations permittedany police officer or member of the Ceylon Army, Royal CeylonNavy or the Royal Ceylon Air Force to carry such order intoeffect.
The Inspector-General of Police authorised the detention of the
corpus in the C. I. D. Office, even though it was possible for himto authorise a prison, and he was taken there at 6.30 in themorning immediately after the arrest.
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G. P. A. SILVA, S.P.J.—Hirdaramani v. Batnavale
The C. I. D. Officer who took him into custody also searched the
house of the corpus and took certain documents Into custody
such as personal diaries and cheque counterfoils.
Prime Minister’s reply to Mr. Hirdaramani on 20th September
that necessary investigations were not over.
Averment in para 10 that investigations related to transactions
in contravention of Exchange Control Regulations.
In regard to this last circumstance, I would wish to observe that, takenby itself, there is an element of speculation in the averment because thepetitioner was not making this averment from personal knowldege butfrom conjecture or inference. Counsel however relied on the absence ofa contradiction of this averment in the affidavit of the 3rd respondent,Mr. Wettasinghe, to show that the averment had substance. Inconsidering whether a prima facie case of lack of bona fides has beenestablished for the respondent to answer, however, I should like to considerthe circumstances relied upon by the petitioner without reference to orsupport from the respondent’s affidavit.
Counsel’s contention is that the totality of these circumstancesestablishes that the reason for taking the corpus into custody was notto prevent him from acting in any manner prejudicial to the public safetybut for the collateral or ulterior purpose of facilitating an investigationinto alleged illegal exchange control transactions. If the lastcircumstance which I have just referred to is excluded as being basedupon an intelligent conjecture at the highest, there is no other circumstancerelied on which either by itself or in association with the othercircumstances would lead to an inference that the C. I. D. wereinquiring into an exchange control offence. The inference in my viewfalls short of that on the affidavit of the petitioner alone. JIf, however,the contention was that the continuous investigation at the office ofthe C. I. D. supported the inference that the corpus was detained inorder to facilitate an investigation, but not an investigation of a particularoffence, it is possible to agree with that contention. I can also see theforce of such an argument if it iB used for the purpose of leading up to thenext argument that, upon a strict construction, the regulation does notpermit a person to be detained if the only purpose is to facilitatean investigation even if the offence investigated was that of promotingor assisting insurgent activities against the established Government.For, if the regulation permitted such detention it would be lawful for awitness who has useful information to be detained for the purpose ofinvestigating an offence committed by others. The regulation is clearlyintended to detain a person only for the purpose of preventing him fromacting in a manner prejudicial to the public safety. This however doesnot resolve the difficulty. The contention presupposes that the carryingout of an investigation by interrogating the corpus is inconsistent withthe detention of the corpus for the purpose of preventing him from actingin a manner prejudicial to the public security. While an investigation
O. P. A. SILVA, S.P.J.—Hirdammani v. Ratnavole
97
in the 0.1. D. office is no doubt consistent with the corpus being onlysuspected of an offence, whether it be exchange control or insurgency,it is not at all inconsistent with the Permanent Secretary holding theopinion that he was concerned in acts prejudicial to the public safetyand that his detention was necessary in order to prevent him fromcontinuing such acts. For, quite apart from regulation 65 authorisingthe questioning of a detainee, it is most natural that if the corpuswas detained because such an opinion was held, he would also bea storehouse of useful information for the Government and the mostsearching investigation was immediately demanded in the interest ofsecurity in order to discover what part he played, if he did, whether therewere other participants in the offence and, if so, what their activities were.The contention of counsel is tantamount to saying that if the corpuswas locked up in a prison without any investigation such action wouldnot have indicated the mala fides of the Permanent Secretary while theimmediate and continuous interrogation indicated a collateral purposeof facilitating inquiries into an offence unconnected “with the insurgentmovement or even into the insurgent movement itself and supportedmala fides on his part. In fact this seemed to be the line of reasoningof counsel when, in answer to me, he stated that he would have been ina worse position to support this application if thedetenue was taken fromhis home direct to a prison and confined than his having been detainedat the C. I. D. office. With much respect, I do not see any substance inthis contention. In my view, in a highly dangerous situation such asthe one that this country experienced in the early part of this year itwas most urgent and essential that any person who was suspected ofassisting the insurgent movement and taken in for preventive detentionshould also be immediately interrogated with a view to obtaining all theinformation that the authorities could have collected. It would beidle to suggest that Buch interrogation negatived bona fides on the partof the official who issued the order of detention because the interrogationpointed to the collateral purpose of conducting or assisting aninvestigation.
Support was claimed for this contention from the letter sent by theHon. Prime Minister to Mrs. Hirdaramani dated 20th September 1971 inreply to an appea) by the latter to release the corpus or, in the alternative,to subject him to house-detention pending further investigations. Muchreliance for the contention that the corpus was detained in order to
facilitate investigation was placed on the words “it would
not be possible to release Mr. Hirdaramani as yet, since it has been reportedthat the necessary investigations are not yet over ”. The submissionwas presumably based on the absence of a reference in the Prime Minister’sletter to anything other than investigations, the indication that the corpuscould not be released because investigations were not completed andthe omission of any intention to detain him after the completion ofinvestigations. I cannot say that counsel was not justified in advancingsuch an argument in his support and the construction which he has
98
G. P. A. SILVA, S.P.J.—Hirdaramani v. Halnavale
chosen to put on the relevant words of the letter is one which has merit.But this is certainly not the only construction. The letter is, I think, astatesmanlike and non-committal reply which gives the impression ofthe Prime Minister having an open mind and not stating one word morethan is necessary and expedient in the circumstances. The words usedin this letter leave the door open for a release of Mr. Hirdaramani after-investigations are completed if they do not disclose his involvement inany suspected offence or to detain him if the investigations disclosethe desirability of further preventive detention. The letter is of coursesilent as to what the offence is that is under investigation, but does notnegative the offence being the same as the one contemplated by thePermanent Secretary when he issued the order for detention.
The position taken up in the letter is not at all inconsistent with anopinion being held by the Permanent Secretary that the offence regardingwhich Mr. Hirdaramani was suspected warranted preventive detention inthe interest of public safety. It does not require much convincing forus to be satisfied that in order to justify an order under the relevantregulation the Permanent Secretary need only have some informationon which he can conscientiously hold an opinion. It is not necessary forhim to have evidence which establishes a case against the detaineebeyond reasonable doubt as a court should have before convicting aperson accused of an offence. This is essentially the reason why theholding of an investigation can be absolutely necessary when a person istaken in for detention. Considered from one angle, quite objectively,an immediate investigation is the surest index of the bona fides of theofficer ordering the detention. The Police Service, of which the CriminalInvestigation Department is a branch, being one controlled by the samePermanent Secretary who is authorised by the emergency regulations tomake an order for detention, it is fair to assume that immediate and-continuous investigations were set in motion by him.' It seems to methat this was the only reasonable course for the Permanent Secretary toadopt in order either to confirm his opinion that the detention of thecorpus was necessary or to revise his opinion and order his release if theinvestigations falsified the information on which he formed his originalopinion and proceeded to make the order for detention. In other words,an investigation is a sina qua non after a person is taken in for detentionunder these regulations and Buch investigations could be a transparentindex of the good faith of the Permanent Secretary and can turn out tobe entirely in the interest of the detainee. This conclusion which I amcompelled to reach seems to me to militate against the view contendedfor by counsel for the petitioner that the detention at the C.I.D. officeand Tepeated investigations prove the presence of a collateral purpose indetaining Mr. Hirdaramani and present a prima facie case of absence ofbona fides on the part of the Permanent Secretary and that theestablishment of prima facie case shifts the burden on him to justify theorder for detention.
G. P. A. SILVA, 8]V.J.—Birdaramani v. Jtatnavate
This is not all. There are certain other factors to be gathered from theaffidavit of the petitioner which weigh on the side of good faith of thePermanent Secretary rather than the opposite of it. Hirdaramani Ltd.and Hirdaramani Industries Ltd. of which Mr. Hirdaramani who is underdetention is the Managing Director, have presumably been formed andregistered with the blessing of the Government and the Governmentwould not ordinarily be hostile to him without good reason. It is statedthat these mercantile and commercial undertakings have been declaredessential services under the Essential Services Order 1971 read withEmergency (Miscellaneous Provisions & Powers) Regulations and thisfact tends to show that the Government recognised the services renderedby these establishments and was prepared, inter alia, to protect themagainst any hostile acts by their employees. The petitioner has furtherstated that Mr. Hirdaramani has at all times rendered assistance to theGovernment to preserve public order and safety. The PermanentSecretary who has issued the order is himself the one who is in charge ofdefence and internal security and if what is stated is true he is mostunlikely to make an order which is so prejudicial to Mr. Hirdaramaniunless he could not avoid it. It must also be assumed that thisPermanent Secretary acted with full responsibility and, no malice orill will on his part towards Mr. Hirdaramani being alleged, the courthas to act on the strong presumption of his good faith in issuing thedetention order.
I would like to emphasise again at this stage that I have so farconsidered the submissions of counsel for the petitioner on the basis ofthe latter’s affidavit alone, not taking into account the averment that“ the interrogation by the said Police Officers has been with regard tocertain transactions which are alleged to be in contravention of theExchange Control Act ” for the reasons which I have stated earlier.I would observe that the wording of this averment which I have quotedabove itself suggests that the fact referred to in the statement is not oneof which he has personal knowledge and the evidence regarding this factwould be hearsay. For this reason it would not be legitimate for thiscourt to act on that averment for the purpose of deciding the issuewhether the Permanent Secretary was acting in good faith or not. I
I shall now consider the impact of the averment in the affidavit thatthe offence investigated was one in contravention of the ExchangeControl Act, on the basis that counsel submitted. The submission wasthat one of the circumstances showing a collateral purpose in thedetention of the corpus was the fact that the investigation concernedan exchange control offence. He submitted that he was entitled torely on this circumstance even though the affirmant’s averment may behearsay or conjecture because the fact averred is not contradicted inMr. Wettasinghe’a affidavit. I must say 'that this mode of circumventinghearsay does not commend itself to me. Proper and admissible evidence
100
G. P. A. SILVA, S.P.J.—Hirdaramani v. Ratnavale
must be placed before a court by the party relying on such evidenceand it is not open to a court to treat hearsay as evidence because ofsupport from the silence of the opposing party.
Even if one were to consider the rest of the averments in the affidavit inconjunction with a bare statement that the investigation related to anexchange control offence, many approaches would appear to suggestthemselves in determining the question before us. In the first placehaving regard to the date of the detention, it is not irrelevant for thecourt to consider the question in the background of the insurgentmovement in this country which compelled the Government to clampdown an islandwide curfew and to enact certain emergency regulationsthe scope of which itself is under consideration in these proceedings.It is reasonable to think that the success of this movement largelydepended on the supplies of armB and ammunition which are incapableof being produced in this country. Foreign exchange of considerableproportions would be an essential prerequisite for obtaining such suppliesfrom abroad and such foreign exchange cannot be obtained throughlegitimate channels. An offence against the Exchange Control Actwould therefore be a natural and probable concomitant in an effortat a successful prosecution of the insurgent movement. In thesecircumstances an exchange control offence would be something germaneto the insurgent movement and not one which is foreign to it. Evenif the interrogation of the corpus related to exchange control offencestherefore the investigation which was in train was not inconsistent withhis involvement in activities which would in some way have assisted theinsurgent movement and justified his detention. It is not as it werethat the material available disclosed that the Police were investigating_an offence and interrogating the corpus in regard to a matter whichcould not possibly have had the remotest connection with insurgentactivities in which event there would be substance in a suggestion thatthe Permanent Secretary ordered the detention under the cloak ofpreventing the corpus from acting in a manner prejudicial to publicsecurity while in reality, he did so in order to assist the investigation ofan offence which could not conceivably have any bearing on insurgency.For the petitioner to rely on the circumstances enumerated by counselfor establishing a prima facie case of bad faith against the PermanentSecretary it is not sufficient in my view if the circumstances relied ononly indicate a possibility of bad faith. If a conclusion of good faith isequally possible, that is to say, if the circumstances show that thePermanent Secretary could have honestly held the opinion which hedid before making an order for detention the submission of counselmust fail. One must remember that an opinion is not something whichis the equivalent of proof. The Permanent Secretary could thereforehave formed an opinion even if the material available fell short of whatis required for proof. In the words of Lord MacMillan in Liversidge v.Anderson (supra) “ The question is one of preventive detention justifiedby reasonable probability, not of criminal conviction, which can onlybe justified by legal evidence. As I have indicated, a court of law
O. P. A. SILVA, S.P.J.—Hirdaramani v. Ratnavale
101
manifestly could not pronounce upon the reasonableness of the Secretaryof State’s cause of belief unless it were able to place itself in the positionof the Secretary of State and were put in possession of all the knowledge,both of facts and of policy, which he had. However, the public interestmust, by the nature of things, frequently preclude the Secretary of Statefrom disclosing to a court or to anyone else the factB and reasons whichhave actuated him The burden on the petitioner to Bhow that suohmaterial was not available to the authority ordering detention, whichcounsel for the petitioner offered to discharge when he made anapplication to cross-examine the Permanent Secretary on his affidavit,was both heavy and, to my mind, impracticable. It is impracticablebecause the material available to the Permanent Secretary can belegally withheld from the court as so clearly set out in the observationof Lord MacMillan, which I have just referred to. It is this sameidea that Lord Justice Atkin gave expression to in the quotation, whichI referred to earlier.
As no prima facie case has therefore been made out against the goodfaith of the Permanent Secretary the onus does not shift on him to satisfythe court to'the contrary. A return valid on its face and so acceptedin this case by the petitioner, is an adequate answer to the petition.This view is supported by the decision in R. v. Home Secretary ex parteOreene1 in which it was held that where the return, or the affidavit showingcause exhibits an order of commitment regular on its face, an affidavitby the Home Secretary is unnecessary, and that where an order regularon its face is produced, the onus is on the applicant to prove facts necessaryto controvert it. The dictum of Lord Justice Goddard with which LordJustice Scott and Lord MacKinnon agreed and which was later citedwith approval in some of the judgments of the House of Lords expressesthis position very clearly :—
" I am of opinion that, where, on the return, an order or warrantwhich is valid on the face is produced it is for the prisoner to provethe facts necessary to controvert it, and, in the present case, this hasnot been done. ”
On the basis of this opinion and for the reasons which I have set outearlier, I think that the affidavit of the petitioner, even considered byitBelf, contains the justification for the Permanent Secretary’s order fordetention and would lend no support for the counsel’s contention of badfaith.
While this conclusion disposes of the matter under consideration Idesire to make a few observations on several other aspects which weredwelt upon by counsel during the very full argument that was addressedto us on both sides of the Bar. It can safely and reasonably be assumedthat no public officer, wielding such onerous responsibilities as a PermanentSecretary to the Ministry of Defence and External Affairs, would ventureapon the drastic and ill-advised course of ordering the detention of a
1 (1941) 3 A. E. R. 104.
102
G. P. A. SILVA, S.P,J.—fiirdaramani v. JRatnavale
citizen of very high standing in the commercial world, if it was only foran infringement of an exchange control olfence, and expose himself tothe consequences of legal proceedings, even if no other consequenceensues. If such an assumption is correct and one proceeds on the furtherassumption that in interrogating the corpus the Police wore investigating,an exchange control offence of some magnitude which had furtherramifications and implications, the possibility or even the probabilityof the investigation also having a close connection with the insurgentmovement cannot be excluded. Viewed from this angle too thereforeit can be said that the affidavit of the petitioner has not established aprima facie case of bad faith by pointing to a collateral purpose as beingthe object of the detention order in such a manner as to cast an onus onthe first respondent to rebut it.
A glance at the affidavit of the first respondent has the effectof confirming the view which I have already formed on the affidavit ofthe petitioner. After referring to the widespread armed insuiTectionin this country which took place in April 1971 and strained to the utmostthe military, administrative, financial and other resources of the Statehe states in this affidavit dated 12th November 1971 (the date is important)that Police investigations into the insurgency and activities connectedtherewith have not yet been concluded and that the investigationsmade so far revealed that the insurgent movement has been organisedand launched with large scale financial and material support. He goeson to say thereafter in the crucial paragraph 9, much criticised by counselfor appellant as being vague, evasive and unintelligible in parts, to useonly a few epithets, that certain material placed before him by the Policesatisfied him of the following points :—
That the detainee had unlawfully obtained a large sum of money
in Ceylon by making or arranging payment abroad to the accountor to the order of a person carrying on unlawful foreign exchangetransactions.
That this payment appeared to him to be inextricably connected
with certain foreign exchange smuggling transactions underinvestigation.
That the statements recorded in the course of that investigation
appe u-ed to him to indicate that the unlawful transaction directlyor •.!'directly help- d to finance the insurgent movement and itsac ivities in Ceylon.
In paragraph 10 he states that at all material times he was of the viewthat the unlawful and illegal smuggling of currency in the manner,magnitude and circumstances mentioned would constitute a danger tothe security and financial stability of the country. In paragraph 11* he states that he was of opinion with respect to the detainee that, witha view to preventing him from engaging in similar activities in the futureand from acting in any manner prejudicial to the public safety or themaintenance of public order, it was necessary that he should be taken
G. P. A. SILVA, S.P.J.—Hirdaramani v. Ratnavale
103
into custody and detained and that on about the 31st August 1971 hemade such order in good faith. If what is stated in paragraph 9 is correctit shows that the detainee hod made available large sums of foreignexchange abroad to a person carrying on unlawful foreign exchangetransactions in return for a large sum of money received by the detaineein Ceylon. Paragraph 12 shows that the detainee had made availableto certain foreign nationals in Ceylon whose identity was undisclosed asum of over If million rupees in return for payments to him in foreigncurrency. The time, magnitude and the illegality of these transactionsconsidered together lead to the irresistible conclusion at least that thedetainee was a person who had a command of very large sums of moneyboth here and abroad and that he did not mind the illegality ofthe transactions so long as he profited by them. The material does notof course show conclusively that the detainee directly financed insurgentactivities by these transactions. Even if he definitely had no intentionto assist such activities, he himself may not be in a position to denythat the money which was involved in these transactions would havefound its way into the hands of those who were promoting the insurgentmovement. For the purpose of issuing an order for detention in theexercise of liis powers under regulation 18 however it is not necessary forthe Permanent Secretary to have material before him which would supporta conclusion that the corpus was in some way fanning the insurgentmovement. It is quite sufficient if he formed the opinion that the illegaltransactions admittedly carried on by the corpus had as their destination' some place from which assistance was obtained for the insurgentmovement in Ceylon. So that even if the corpus was unaware that byhis illegal exchange deals he was assisting the insurgent movement, ifsuch deals produced that result it would have been quite reasonable forthe Permanent Secretary to form the opinion that the only way in whichthe security of the state should be safeguarded so far as the corpus wasconcerned was by detaining him in order to prevent him from illicittransactions in foreign exchange which ultimately assisted the prosecutionof the insurgent movement. I have examined the implications of thisaffidavit not because I consider it obligatory on the Permanent Secretaryto meet any case established by the petitioner but partly to show howthe view which I had formed on the petitioner’s affidavit is supportedand confirmed by the first respondent’s affidavit and partly to considerwhether there is merit in the submission of counsel for the petitionerthat the first respondent’s affidavit at its best does not show anyresponsibility of the detainee for promoting insurgent activities. I
I should at this stage wish to say a word or two on the applicationby counsel for the petitioner to be allowed'to cross-examine the firstrespondent on his affidavit so that he may show that the PermanentSecretary could not have held the opinion which he states in his affidavitas well as in his order for detention that he did. Even if a stage wasreached in this case for the Permanent Secretary to be called upon toprove his good faith and the application of counsel for the petitioner
104
G. P. A. STLVA, S.P.J.—Birdaramani t>. RatnavaU
to cross-examine him on the affidavit was allowed it can be demonstratedthat that course would have been futile, as was visualised in the observationof Lord MacMillan which I referred to earlier. The averments in theaffidavit show that the Permanent Secretary had some material whichfor reasons of public security or public interest he was unable to disclose.The only way that counsel could have shown the court what he expectedto show wao by asking the Permanent Secretary what the informationwas that he had and perhaps what the sources of that information were.To this question the Permanent Secretary would have pleaded privilegeand the court was in duty bound to allow him to refrain from answeringthat or any similar question. No useful purpose, would therefore havebeen served by granting any application to cross-examine the PermanentSecretary on his affidavit. This is the reason why .1 stated earlier thatthe displacing of a presumption of good faith would be impracticable.
The only other matter regarding which I wish to express my views isthe question whether an order made under the Emergency Regulationsreferred to is justiciable or not in view of the provisions of sections 5 and8 of the Public Security Ordinance and regulations 18 (10) and 55 of theEmergency Regulations under consideration. Regulation 18 (10) ofthe Emergency (Miscellaneous Provisions and Powers) Regulations No. 6of 1971 states that an order for detention made by the PermanentSecretary to the Ministry of Defence & External Affairs under regulation18(1) shall not be called in question in any court on any ground whatsoever.Regulation 55 makes provision to exclude the application of section 45 ofthe Courts Ordinance (which empowers this court among other thingsto issue Writs of Habeas Corpus) to persons detained or held in custodyunder an emergency regulation.
It is a well established rule of construction that statutes as well assubsidiary legislation which have the effect of infringing on theliberty of the subject must be very strictly construed. It behoves thecourt therefore in interpreting the above provisions to examine verycarefully whether in the final form in which they appear they precludeinquiry by the court. It is beyond argument that the courts can inquire intoa complaint by an aggrieved party, in the first instance, that any particularrule, regulation or by-law is ultra vires or that an enactment or rule hasbeen misapplied in his case. Jt is also the undoubted duty of the court,after such inqiiry, either to pronounce on the validity of the rule orregulation, or. where the validity is not in doubt, to decide inter aliawhether any power conferred on the executive by such rule or regulationhas been exercised in terms of such provision strictly construed. Inthis, case counsel for the appellant does not even contend that thePermanent Secretary in terms of regulation 18 (1) has no power to makean order of detention, nor does he contend that the court’s power toquestion an order are not taken away by regulation 18 (10) and Regulation55. His only contention is that such an order should be validly made and.when >so made and only then will the provisions contained in regulation18 (10) and regulation 55 preclude a court from calling Buch order in
G. P. A. SILVA, S.P.J.—Hirdaramani v. Ratnavale
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question. For such an order to be validly made the Permanent Secretarymust in my view form an opinion in good faith, as. he appears to havedone in this case, and in forming such opinion he may even takean incorrect decision by reason of wrong judgment on his part; bntsuch an incorrect decision is not justiciable by reason of the provisionsof section 8 of the Public Security Ordinance and regulation 18 (10) and,in the instant case, also by reason of regulation 55. If of course he actsin bad faith in making an order under regulation 18 (1), the provisionstaking away the right of the court to call the order in question wouldnot apply. On a very simple analysis of the language involved in thisregulation, it seems to me that in such an event the court's jurisdictionto interfere remains untouched because, when the Permanent Secretaryacts in bad faith, he has obviously not made the order for detentionbecause he is of opinion that the person in respect of whom the order ismade is likely to act in a manner prejudicial to the public safety and thathe should be prevented from so acting but because the PermanentSecretary has some other obvious reason. Many such reasons can beimagined, the simplest of which is that the officer is actuated by a personalmotive. To take a very simple illustration, supposing the PermanentSecretary had an inveterate enemy who, upon a charge of attemptedmurder of the Permanent Secretary had been sentenced to a period ofimprisonment and the Permanent Secretary had information from the jailauthorities that he had been threatening to achieve what heunsuccessfully attempted earlier on his return from jail. Supposingthereafter this man completes his term in prison and is released at atime when these emergency regulations are in operation and on the veryday he returns home the Permanent Secretary issues an order ostensiblyunder regulation 18 (1) in the usual form stating that in his opinion thisman’s detention is necessary with a view to prevent him from acting inany manner prejudicial to the public security. In such a situation ifan application for Habeas Corpus is made to this court in respect ofthis man who is detained under that order and evidence of the man'sthreats against the Permanent Secretary is available to court and thePermanent Secretary is unable to justify the legality of his order it wouldnot be open to this court to say that it will not question this order becauseof section 8 of the Public Security Ordinance or Regualtion 18 (10) orRegulation 55 of the Emergency Regulations. However appreciativethe court may be of the predicament of the Permanent Secretary andhowever solicitous it may be in regard to his personal safety, the courtbeing also a servant of the law, it will be compelled to grant the writ.The remedy for the Permanent Secretary will be to provide himself withthe necessary security through appropriate legal proceedings or otherwisebut not to make a detention order which will be illegal and perverse andwill be a patent abuse of the power granted by the regulation. I haveof course given a very extreme case which is most unlikely to occur butsuch instances often help to illustrate the principle which one is concernedwith. But of course cases do occur of colourable orders which on their facemay bear the stamp of legality but whose real object will be bared on
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G. P. A. SILVA, S.P.J.—Hirdaramani v. Ratnavale
•even a superficial examination. Other instances may occur where evenafter very close examination the object of the order may be left equivocal.The Soblen Case1 is. a good illustration of such a borderlinecase as I am referring to. It was there that Lord Denning expressedthe view that an act which is professedly for a legal purpose can in factbe for another collateral purpose and that a court can go behind the orderto see if the executive had exceeded its jurisdiction and that if the HomeMinister failed to furnish an answer his order can be upset. I am alsoreminded in this connection of the dictum of Lord Goddard to the effectthat if the court does not interfere there is no remedy for a subject againstan order which is clothed in the garment of satisfaction and that if theonus is not discharged the order must be held to be invalid. The argumentin Soblen’s case amply illustrated that there may well be cases of personsdetained on the ground that their detention was necessary for thedefence of the realm who have also committed other serious offences andthat there may be cases where it is extremely difficult for a court to decidewhether the detention was done in good faith or not and where thepresumption of good faith of the officer ordering such detention is thefactor that tilts the balance in favour of non-interference by the court.
It will thus be seen that mala fides will be an implied exception to anyexclusionary provision of this nature which on the face of it precludes-a court from questioning the validity of an order made thereunder.When a subject complains to court of an order restraining his libertytherefore a court is obliged not merely to take a look at the face of theorder but to go behind it and satisfy itself whether it has been validlymade. It will be most uncharitable to the legislature of a country inany part of the world for a court to hold that, in enacting a provisionsimilar to those under consideration, its intention was to preclude a courtfrom examining an order made under circumstances such as those Ihave endeavbHred to illustrate. So to do would expose the courts tothe criticism of interpreting the provision not in accordance with thereasonable intention of the legislature but in the teeth of it.
When, of course, an order is validly made by the Permanent Secretaryand the court upon inquiry into the complaint of a person detained, issatisfied of its Validity, I have no doubt that this court cannot call it inquestion on any ground whatsoever. That is to say, where in fact thePermanent Secretary is honestly of opinion with respect to any person,that, with a view to prevent such person from acting in any mannerprejudicial to the public safety, it is necessary to do so, he may makean order that such person may be taken into custody and detained incustody, and when he has made such an order, it is not for a court toinquire into the reason for his order, the information on which he formedthe opinion, the sources of that information and such other matters.
I have already dealt with the reasons for this unprofitable andfutile exercise which no Court, conscious of the Bcope of its duty willindulge in.
* (1962) 3 A. E.R. 373.
Q. P. A. SILVA, S.P.J.—Hirdaramani v. Ratnavalt
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It is not as it were that the regulations did not provide a remedy fora subject affected adversely by such an order which is validly made andregarding which the jurisdiction of the court has been taken away byregulations 18 (10) and 55. The regulations while precluding a courtfrom questioning such an order, have made available to the subjecttwo other remedies in order to redress a justifiable grievance withina limited area. Regulation 18 (4) provides for a person aggrieved bysuch an order to make his objections to an Advisory Committee consistingof persons appointed by the Governor-General and regulation 18 (6),
and (8) prescribes the procedure to be followed by such AdvisoryCommittee and empowers the Permanent Secretary to revoke the orderfor detention made by him after consideration of the report by the.Advisory Committee. There is a second and more speedy means ofredress which is provided by regulation 18 (5). This makes it obligatoryon the Permanent Secretary to secure and afford an opportunity toevery person against whom an order is made under the regulation theearliest practicable opportunity to make to the Prime Minister in writingany representations which he may wish to. Even though the regulationdoes not set out what remedy the Prime Minister can grant, this provisionto my mind can only mean that there is an implied power conferred onthe Prime Minister, after looking into the representations, to order thePermanent Secretary to revoke his order of detention and release theperson against whom the order is made. I can only think that thepurpose of this entire provision, even though it is silent on that aspect,is to vest in the Prime Minister, the supreme executive authority inthe land, the power to revise the order of the Permanent Secretaryif for any reason the Prime Minister takes the view that the order shouldnot have been made with respect to the person making the representations.The Prime Minister will of course have the advantage of obtaining fromthe Permanent Secretary or otherwise all the information that is requiredwhich would not be made available to a court. It would also bepresumably appropriate for the Prime Minister to forward anyrepresentations made by a party aggrieved to the Advisory Committeefor suitable action in terms of the powers given to the Committee. Itseems to me that there is a difference which is very important betweenthe functions of an Advisory Committee and the implied powers conferredon the Prime Minister. While the Advisory Committee’s functionsend with the submission of a report to the Permanent Secretary, whichhe may consider but not necessarily act on, the Prime Minister will beable, after consideration of representations made, to order the PermanentSecretary even to release the detainee from his detention. That wouldexhaust the remedies available to a person validly detained and nocourt Will be able to question the right of the Permanent Secretary tomake such an order.
In regard to an invalid order which I have referred to earlier it is myview that neither regulation 18 (10) nor regulation 55 ousts the jurisdictionof a court to pronounce on it. It was of course open to the legislature,or the rule making authority as the case may be, if that was its intention.
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G. P. A! SILVA, S.P.J.—Hirdaramani v. Ratnavale
to couch the relevant laws and regulations in such language as to precludea court from questioning the validity of an order made or purported tobe made by the Permanent Secretary but it has chosen not to do so.A reasonable inference therefore iB that it did not wish to encroach on thefunctions of the judiciary and also preferred an impugned order ofdetention to be fully inquired into and decided upon by a courtuntrammelled by considerations which would necessarily influence theexecutive. Quite apart from the undesirability of the executive havingto decide a complaint against itself, the view may have been taken thatthe executive did not have the machinery that a court had to inquirefully into complaints of such varied character as may be made by detaineesand that the aggrieved party would also not have the opportunity of fulllegal representation which he will enjoy before a court of law. Thesereasons point to an intention not to take away the jurisdiction of the courtfrom going into an order which is not validly made under the regulation,quite apart from the construction on the wording of the regulationswhich I feel compelled to put irrespective of these considerations. In amatter such as this where the liberty of the subject is involved, anotherfundamental rule of construction is that where two interpretations arepossible a court should always lean towards the interpretation whichpreserves the liberty of the subject and not on the side which restricts it.
Finally, there is another matter arising from the presence of regulation19 which makes the conclusion inevitable that the jurisdiction of thecourt to grant a writ of Habeas Corpus is not shut out by regulation 65in respect of an illegal order. Regulation 19 empowers any police officer,any member of the Ceylon Army, Royal Ceylon Navy or Royal CeylonAir Force, or the Commissioner of Prisons or any Superintendent, AssistantSuperintendent or Probationary Superintendent of a Prison, or anyJailor or Deputy Jailor, or any Prison Guard, or Prison Overseer, or anyother person authorized by-the Prime Minister to search, detain for thepurpose Of search or arrest without warrant any person who is committingor has committed or whom he has reasonable grounds for suspecting tobe concerned in or to be committing or to have committed an offenceunder any emergency regulations. These categories would numericallyhe very large. The powers conferred are in fact infinitely wider than thepower of detention conferred on the Permanent Secretary by regulation18. It is inconceivable that none of these officers numbering perhapsseveral thousands will act in good faith and that they will never at leasterr in their judgment in depriving a person of his liberty by exercising thepowers of detention granted by this regulation. It is unthinkable thatin making these emergency regulations there was an intention to denyany person aggrieved by a wrongful detention the right of access to acourt or to take away'the powers of the court to question the validityof the detention and, on being satisfied that such detention was illegal,to grant a writ of Habeas Corpus. And yet this will be the effect ofregulation 55 if it is construed without any qualification becauseno distinction in its application is made in this regulation between adetention under regulation 18 and a detention under regulation 19.
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In other words, regulation 55 in the present form would apply in the sameway to a person detained on the order of the Permanent Secretary underregulation 18 as well as to a person,detained by any police officer, anyofficer of the Ceylon Army, Royal Ceylon Navy or Royal Ceylon AirForce in any part of Ceylon not to speak of the other categories of officersenumerated in regulation 19. If one were to give regulation 55 themeaning that the power of the Supreme Court to issue a writ of HabeasCorpus in terms of section 45 of the Courts Ordinance is taken away inthe case of a person detained or held in custody under any emergencyregulation, irrespective of whether he is detained under a valid order ornot, or in consequence of a wrongful arrest or not, the resulting positionwould be that such person will be indefinitely denied access to a courtto secure his liberty even though his detention is illegal. No court cansubscribe to a view that necessarily involves such a consequence. Therequirement to produce such a person before a court of competentjurisdiction under regulation 20 appears to be for the limited purpose ofobtaining an order from such court to detain the person produced in aprison and not to give him an opportunity to complain to that courtregarding any other grievance such as unlawfulness of an arrest ordetention. This is the reason why the construction, that this regulationmust be read as meaning that section 45 of the Courts Ordinance shallnot apply in regard to any person validly detained in custody underthese regulations, is inescapable. Else' we would find ourselves in asituation in which no person arrested and detained by the most juniorofficer belonging to any category enumerated in regulation 19 will haveany remedy in a court of law.
It is to be noted that even the limited safeguards provided in regulation18 for a representation to be made to the Prime Minister or to the AdvisoryCommittee are not available to a person detained under regulation 19.This is yet another factor which makes the conclusion irresistible thatit could never have been the intention of regulation 55 to exclude thejurisdiction of the court to issue a writ of Habeas Corpus in termB ofsection 45 of the Courts Ordinance in respect of a person who is thevictim of an unlawful detention. It is also significant in thiB connectionthat a provision similar to regulation 18 (10) is not appended to regulation19. This omission is strongly indicative of the intention in the regulationsthat, while a legal order of detention by the Permanent Secretary underregulation 18 (1) cannot be called in question in any court, any personarrested and/or detained by any of the numerous officers contemplatedin regulation 19 can complain to a court against such arrest and/ordetention and the court is not precluded from inquiring into the legalitythereof. Moreover, the test in regulation 19 is clearly objective and isjusticiable. The logical result thereafter would be that, in those caseswhere a person is unlawfully arrested and/or detained, the court willhave the power to make an appropriate'order. That being the reasonableconstruction of regulation 19 which, by implication, preserves the powerof the court to intervene in respect of an unlawful arrest and/or detention.
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G. P. A. SILVA, S.P.J.—Hirdaramani v. Itatn-avale
I cannot see how, in interpreting regulation 55 a conflicting constructioncan be arrived at, which would oust the power of the court to intervene.This process of reasoning too confirms me in the view I have alreadyexpressed that regulation 55 is intended to remove the court’s jurisdictionto issue a writ of Habeas Corpus only in respect of a lawful detentionunder any emergency regulation and not otherwise.
In conclusion, if I may summarise the question before us, in consideringthe issue of a writ of Habeas Corpus in the field of the exercise of executivediscretion, three standards of requirement arise for a court. Two ofthese postulate an objective test while one of them postulates a subjectivetest. Where objective tests are contemplated, the court has naturallya wider area of inquiry before considering the question of exercisingits power to issue a writ, while in a case where the subjective test isapplicable, the area of inquiry is extremely narrow. In the first twocases, the conditions precedent to the exercise of the power by the executivewhich is complained against are capable of proof and, more often thannot, there would be. no objection to the disclosure of facts bearing onsuch conditions precedent in a court. One example would be where, inEngland, an order of deportation can he made, for instance, against analien. If the person concerned takes up the position that he is notan alien but a British subject, the court will be entitled to ask for, andthe Home Secretary will be able to furnish, proof of the conditionsprecedent, namely, that the person complaining is an alien. If the HomeSecretary fails to prove the existence of the condition precedent, a writwill of course lie. The second category would be where a person, forinstance, can be detained by the executive when he has committed anoffence or when there is reasonable ground for suspecting that he wasconcerned in such offence. This seems to be the situation contemplatedin our regulation 19-referred to earlier. Here too, for the purpose ofdeciding whether or not to issue a writ,' when an application is madefor the purpose, the court will be obliged to call for an explanation fromthe officer who was responsible for the detention as to what the offencewas that the detainee committed or was suspected of being concernedin. Here, except perhaps in a few cases where a full disclosure may notbe desirable in the interest of public security, the facts will be capableof proof and the court will be in a position, after such proof, to decidewhether there was justification for the act of detention on the part ofthe executive. The third category involves only a subjective test andit is that category which we are faced with in this case. The order todetain the corpus is based only upon an opinion held by the PermanentSecretary. If he held the opinion before making his order, it is immaterialwhether his opinion was right or wrong, provided it was honest, that is,in good faith. Secondly, the information which induced the opinion isnot such as can be divulged in a court for reasons of public security.It is here that the following dicta of Lord Maugham and Lord MacMillan
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*n the Liversidge Case (supra), already cited more fully by My Lord theChief Justice in his judgment, would apply even with greater foroe tothe question before us :—
" To my mind this is so clearly a matter for executive discretion andnothing else that I cannot myself believe that those responsible forthe Order in Council could have contemplated for a moment thepossibility of the action of the Secretary of State being subject to thediscussion, criticism and control of a Judge in a court of law.”
per Viscount Maugham.
“ But how could a court of law deal with the question whetherthere was reasonable cause to believe that it was necessary to exercisecontrol over the person proposed to be detained, which is a matter ofopinion and policy, not of fact ? A decision on this question canmanifestly be taken only by one who has both knowledge andresponsibility which no court can share. As Lord Parker said inThe Zamora : ‘ Those who are responsible for the national securitymust be the sole judges of what the national security requires.' Itwould be obviously undesirable that such matters should be made thesubjeot of evidence in a court of law or otherwise discussed in public
per Lord MacMillan.
It is obvious that, in this instance, there is a gulf which places theexecutive out of the reach of a court of law up to a point and a personcomplaining against an excess of power by the executive can only invitethe oourt’s interference by proof of mala fides on the part of the officerooncemed, at least to the extent of creating in the mind of the courtsubstantial and disquieting doubts as to his bona fides, which wouldwarrant-an explanation. Such proof, as I have endeavoured to analyseearlier, has not been forthcoming in this case, and the application for aWrit of Habeas Corpus must therefore necessarily fail.
Samebawickhame, J.—
The petitioner has averred that the Detention Orders made by the-1st respondent directing the taking into custody of B. P. Hirdaramani.were illegal, null and void and that his detention in custody was illegal,wrongful and without legal authority and that he has not in law beendetained under any of the provisions of the . Emergency (MiscellaneousProvisions and Powers) Regulations. He accordingly prayed for amandate in the nature of a Writ of Habeas Corpus' ordering therespondents to bring before this Court the body of the said B. P.Tfirdaramani to be dealt with according to law.
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Regulation 18 (1) of the Emergency (MiEcellaneouB Provisions andPowers) Regulations, No. 6 of 1971, reads :—
“ Where the Permanent Secretary to the Ministry of Defence andExternal Affairs is of opinion with respect to any person, that, with aview to preventing such person—
(а)from acting in any manner prejudicial to the public safety, or
to the maintenance of public order, or to the maintenanceof essential services ; or
(б)from acting in any manner contrary to any of the provisions of
sub-paragraph (a) or sub-paragraph (6) or paragraph (2) ofregulation 38 or regulation 24 of these regulations,
it is necessary so to do, the Permanent Secretray may make order thatsuch person be taken into custody and detained in custody.”
Mr. S. Nadesan, Q.C., who appeared for the petitioner conceded that it isnot open to this Court to-consider the sufficiency or insufficiency of thegrounds on which the Permanent Secretary may form an opinion thatit is necessary to make a detention order in respect of a person. Thevalidity of an order does not depend on the existence of sufficient orlogical grounds : if the Permanent Secretary does in fact form an opinion,whatever the grounds on which that opinion is based, the consequentdetention order will be valid. The opinion of the Permanent Secretarymaking the order as to the matters specified in the Regulation is the onlycondition for the exercise of his poyerB. The Court cannot thereforesubstitute itB own opinion for that of the Permanent Secretary.
It is however open to a party challenging a Detention Order to show,if he can do so, that theJPermanent Secretary neveT had the opinion thatit was necessary to make an order for the detention of the person namedand that the Detention Order wasjiot made because he had formed, anopinion as required by the Regulation but for an ulterior object. Forexample, the order would not be in terms of the Regulation and wouldbe a sham if the Permanent Secretary were to make it for a purely privatepurpose such as the detention of the rival to the woman he loved. Again,if there is overwhelming ground for believing that no reasonablePermanent Secretary could form the opinion that it was necessaryto make a detention order in respect of the person affected, it might showthat the Permanent Secretary was acting in bad faith and that thedetention Order was not made on the basis of an opinion required by theRegulation but from an improper purpose.
The Detention Order was to the following effect:—
“ By virtue of the powers vested in me by paragraph (1) of Regulation18 of the Emergency (Miscellaneous Provisions and Powers) RegulationsNo. 6 of 1971, I, Arthur Rajkumar Ratnavale, Permanent Secretaryto the Ministry of Defence and External Affairs, being of opinion that,with a view to preventing the person specified in Column I of the
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113
Schedule to this order and residing at the place shown in thecorresponding entry in Column II of that Schedule from acting inany manner prejudicial to the public safety and to the maintenance ofpublic order, it is necessary so to do, do hereby order that such personbe taken into custody and detained in custody.”
The position of the petitioner is that the Permanent Secretary had notin fact formed the opinion which he stated in the Detention Order butthat he had made the order for the ulterior and collateral purpose offacilitating investigation. At first Mr. Nadesan submitted that it wasto facilitate an investigation into offences committed in contraventionof the provisions of the Exchange Control Act. At a later stage of theargument he was content to take the position that it was to facilitate aninvestigation into the origin, financing and working of the insurgentmovement and the identity of the persons concerned in it. The petitionerwas thus alleging both that the 1st respondent had made the order in badfaith and that he had falsely set out in the Order that he had formedthe opinion that it was necessary to make a detention order when infact he had not formed such an opinion but had made the order for anulterior purpose. He was in effect alleging fraud. The burden of provingsuch an allegation is on the party who makes it and it is a heavy burdento discharge. The raising of mere suspicion is not sufficient—videAahutosh v. State of Delhi1, A.I.R. 1953 S.C. 451.
Mr. Nadesan sought to establish his case in the following way. Firsthe made the point that the facts set out in the petitioner's affidavitshowed that from the moment the detainee was taken into custody aninvestigation commenced. He then submitted in reliance on certainIndian decisions that preventive detention excluded or at least wasinconsistent with investigation and that detention and investigationcould not stand together. He therefore invited the Court to draw theinference that the detention was effected for the purpose of facilitatingthe investigation.
There is no doubt that from the time that the detainee was taken intocustody there was an intensive interrogation and investigation. Inparagraph 14 of his affidavit the 1st respondent Btates:—
“ Investigations into the origin, financing and working of theinsurgent movement and into the identity of persons concerned in it,have been and are being made. The detainee has been questioned, inthe course of these investigations more particularly in regard to hishaving made large sums of Ceylon currency available to foreign nationalsin Ceylon."
I think that Mr. Nadesan’s first point is established. I am howeverunable to agree with the submission he next made. There are no doubtIndian decisions which draw a distinction between preventive detentionand “ punitive ” detention and hold that the nature of the former kind of
* A. 1. R. 1953 S. O. 451.
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detention is such that it is inconsistent with the investigation of an offencealleged to have been committed by the person detained. I think howeverthat the situations in which such detention was ordered in India and theprovisions relating to detention were different to the situation thatobtained here and the regulations made under our Act. There was notin India, I think, at the times when those decisions were made widespreadacts of insurgency and armed insurrection which threatened the securityof the State itself. That such conditions obtained in Ceylon in Aprilof this year this Court may even take judicial notice having regard tothe Emergency regulations, the curfew, and the statutory orders made todeal with the situation and other circumstances which were notorious.In paragraphs 4, 5 and 6 the 1st respondent states :—
“ 4. On or about the 16th day of March, 1971, His Excellency theGovernor-General, by reason of the existence of a state of publicemergency, declared by Proclamation dated the 16th day of March,1971, that Part II of the Public Security Ordinance shall come intooperation in the interests of public security, the preservation of publicorder and the maintenance of supplies and services essential to thelife of the community.
5. In April, 1971, widespread acts of insurgency took placethroughout the length and breadth of the country straining to theutmost the military, administrative, financial and other resources ofthe State.
The armed insurrection, though brought under control, hascaused great loss and damage to life”and property, disorganised theadministration in a number of areas, interfered with transport andcommunications and affected the distribution of food, fuel, and otherarticles essential to the-life of the community. It has also seriouslyaggravated the financial plight of the country.”
Where such conditions obtain and the origin of the conspiracy againstthe State haB yet to be ascertained it appears to me that it is necessarynot merely to detain persons to whom, in the opinion of the PermanentSecretary, Regulation 18 (1) applied but also to interrogate such personsand to obtain such information as it was possible to elicit in regard tothe origin, financing and working of the insurgent movement. Thereare provisions in the Regulations that provide for such interrogation andinvestigation.
Regulation 65 states :—
“ (1) Notwithstanding anything in any other law to the contrary,a person taken into custody and detained under any emergencyregulation may, during the period of such c.ustody and detention,be questioned by any police officer, or any other office? authorised bythe Commander of the Army, Captain of the Navy or Commander ofthe Air Force, and it shall be the duty of the person so questioned taanswer the question addressed to him.
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115
For the purpose of questioning any person taken into custodyand detained under paragraph (1) or for any other purpose connected•with such questioning, any officer referred to in paragraph (1) ofthis regulation may remove such person from any place ofdetention or custody and keep him in the temporary custody of suchofficer for a period not exceeding seven days at a time.”
Regulations 51, 52 and 53 are :—
“ 51.(a) A police officer or a person duly authorised under the
Emergency Regulations, investigating into an offence under anyemergency regulation shall, notwithstanding anything to the contraryin any other .law have:—
the right to question any person including a person detained or
held in custody under any emergency regulation and to takesuch person from place to place for the purpose of suchinvestigation during the period of such questioning, and
the right to take charge from any person so questioned any
article or other thing including a document necessary forthe purposes of such investigation.
-j.a. £
It Shall be the duty of every person to give all assistance to apolice officer or other person duly authorised, investigating into anoffence under any emergency regulation ; and every person questionedunder sub-paragraph (i) of paragraph (a) of this regulation shalltruthfully answer all questions put to him and notwithstanding anythingto the contrary in any other law shall disclose all information includingthe contents of any document, touching the. subject matter of theinvestigation, irrespective of the capacity in which such person hasreceived such information or knowledge of the contents of suchdocument.
It shall be the duty of every person questioned under paragraph(a) of this regulation to deliver to the police officer or a person dulyauthorised investigating into an offence under any emergency regulationany article or other thing including a document in the custody orpossession of such person when directed so to. do by such police officeror person duly authorised.
A contravention of any of the provisions of this regulation orthe breach of any duty imposed thereunder shall be an offence underthe emergency regulations punishable under regulation 45 of theseregulations.
52. During the period that any person is held in detention or custodya police officer investigating into an offence under any emergencyregulations shall have a right of access during reasonable hours to anysuch person for the purposes of Buch investigation.
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SAMERAWTCKRAME. J.—Hirdaramcmi v. Ralnavale
53. The powers of a police officer under any emergency regulationshall be in addition to and not in derogation of his powers under anyother written law.”
It appears to me that the factual situation in Ceylon at the relevanttime required a combination of detention and investigation: the lawallowed it. The Indian decisions relied on by the petitioner do nottherefore apply. It may be that detention under Regulation 18 (1) isnot preventive detention as commonly understood. This is, however, no-more than the necessary consequence of the seriousness of the situation.The liberty of the subject is beyond doubt important but it must yieldand give place to the interests of public security—sains popvii supremalex. Where the interests of public security permit it there is preservedto the detainee immunity from interrogation otherwise than under thesafeguards provided for in the rules of Criminal Procedure. Wherehowever danger to the public security is pressing such immunity mustbe sacrificed in the interests of the public good.
I am therefore unable to draw from the fact of investigation in thiscase the inference, contended for by Mr. Nadesan, namely, that theDetention Order had been made for the purpose of facilitating aninvestigation and not because of an opinion that it was necessary todetain the corpus to prevent him from acting in a maimer prejudicialto the public safety. Logically too the fact that an investigationinto the conduct of a person is necessary in no way excludes a possiblenecessity of his detention in the interests of public security.
Mr. Nadesan also submitted that the statements in the affidavit of the1st respondent relating to the grounds for the opinion he had formedwere vague and he invited the Court to draw an inference adverse to the1st respondent? He commented in particular on paragraph 9 whichreads: —
“ On a consideration of certain material placed before me by thePolice I was satisfied that the detainee had unlawfully obtained a largesum of money in Ceylon by making or arranging payment abroad tothe account or to the order of a person carrying on unlawful foreignexchange transactions and that this payment appeared to me to beinextricably connected with certain foreign exchange smugglingtransactions under investigation and the statements recorded in •the course of that i nvestigation appeared to me to indicate that theseunlawful transactions directly or indirectly helped to finance theinsurgent movements and its activities in Ceylon.”
As I have indicated earlier this Court cannot substitute its own opinionfor that of the Permanent Secretary nor can it examine the sufficiencyor the weight or the logical relevance of the reasons for which thePermanent Secretary formed his opinion. In this paragraph of hisaffidavit he sets out grounds for his opinion which are neither irrationalnor in any way absurd. The fact that they are not grounds whichwould appeal to the judicial mind when it considers the possible guilt or
SAMERAWICKRAME, J.—Hirdaramani v. Rainavale
117
complicity of the detainee is irrelevant. The Permanent Secretary isprimarily concerned not with probable or even possible guilt of thedetainee but with steps and precautions necessary to prevent and avoiddanger to the public security.
Again, it is apparent from the affidavit of the 1st respondent that hewas constrained by reasons of public security from placing before Courtall the matters that were before him when he formed his opinion. Thelearned Attorney-General too stated from his place at the Bar that theinterests of public security prevented the disclosure of all relevant facts.As he put it, all that was possible was for the Permanent Secretary tolift a corner of the veil and disclose sufficient facts to show that he ingood faith formed an opinion. The necessity to maintain a cloak ofsecrecy over relevant matters may well account for vagueness in theaffidavit!^ It does set out the seriousness of the situation in which thecountry was 'placed in that there were widespread acts of insurgencythroughout the length and breadth of the country straining to the utmostthe military, administrative, financial and other resources of the State aswell as armed insurrection. The insurgent movement had been organisedand launched with large scale financial and material support. There wasmaterial to show that the detainee had unlawfully obtained a large sum ofmoney in Ceylon by means of an illegal foreign exchange transaction andthat this payment was inextricably connected with other unlawfultransactions which had directly or indirectly helped to finance theinsurgent movement. There was an admission by the detainee that hehad obtained a sum of Rs. 1,729,000 from certain foreign nationals inCeylon whose names had to be withheld in the public interest inconsideration of payments of foreign currency made abroad illegally tohis credit or orders. The investigations into the insurgency and activitiesconnected with the insurgency had not yet been concluded. The learnedAttorney-General submitted that from the material it appeared that theactivities of the detainee and other persons engaged in illegal currenoytransactions may reasonably be apprehended, if permitted to continue,to be directly or indirectly of assistance to insurgents and other subversiveforces. There is substance in this submission.
As the making of a Detention Order is an official act there is apresumption that such an order has been validly made and therefore thatit has been made in good faith. Upon a consideration of all the evidenceand material before us I am of the view that the petitioner has failed tomake out his case that the 1st respondent had not in fact formed an opinionin terms of Regulation 18 (1) in regard to the necessity of detaining thesaid B. P. Hirdaramani. I therefore hold that the Detention Order wasvalidly made.
Mr. Nadesan also sought to clutch at a procedural straw. Hesubmitted that the petitioner had made out a prima facie case and thatthe onus had shifted to the 1st respondent to establish the validity ofthe Detention Order. He submitted that it was because he had madeout a prima facie case that he obtained the order for notice of the
118
SAMERAWICKRAME, J.—Birdaramani v. RatnamaU
application to issue to the respondents. Even assuming that thesesubmissions are correct there was no onus on the 1st respondent to putbefore this court the reason for the opinion which he had formed and tosatisfy this Court as to the validity, soundness, sufficiency or reasonablenessof the reasons. The reasons or grounds of his opinion are for the 1strespondent’s sole decision and are not justiciable by this Court. Theonly onus on the 1st respondent is to prove that he did in fact form theopinion contemplated by Regulation 18 (1) in respect of the detainee.
In certain enactments an order may be made only when certain factsobjectively exist. Where an authority has power to make an orderto deport an alien, the person against whom the order is made muBtbe in fact an alien. It is not sufficient that the authority thought hewas an alien. It is the objective fact and not the subjective opinionthat is the condition precedent to the making of the order. In a wellknown Nigerian case there were several objective facts that were conditionsprecedent. In Rex v. Secretary of State for Home A jfairs, Ex parte Gfreene1,(1942) 1 K. B. 87 at 102, Scott L. J., referring to the Nigerian case 1931
C. 662, said :—
" In the Nigerian case the relevant ordinance conferred on theGovernor jurisdiction to deport if and only if, certain antecedentpropositions were established or admitted as extrinsic facts : (1) theperson to be deported must have been a native chief, (2) he must havebeen deposed; and even then he could not be deported unless (3)there was a native custom requiring him to leave the area where hehad been chief.
It was held that the Ordinance in question made each fact a conditionprecedent to any exercise by the Governor of the power to deportand that each condition had to be established either by admissionor proof before a Court. On none of the three was the Governorgiven by the Ordinance any power of discretionary discretion, nor_did any question of confidential information arise.”
In the case under consideration by us it is not an objective fact butthe subjective opinion of the Permanent Secretary that is the conditionof the exercise of the power. The question of confidential informationalso arises. Where an objective fact or facts must exist for a validorder to be made, a party disputing the order may dispute the existenceof Buch fact or facto and if he makes out a prima facie case the onuswill shift to the authority who made the order to show that the factor facts which were conditions precedent to the exercise of the powerof making the order did indeed exist. The reason appears to be thatthe authority has no jurisdiction to act unless the fact or facts did existand once a prima facie case is made out tending to show that the factsdid not exist, the authority had to prove that he had jurisdiction. Itis not possible to assume that these considerations will apply where itis not an objective fact but a subjective opinion that is in question andthe only matter that is justiciable is the good faith of the authority.
1 (1942) 1 K. B. 81 at 102.
SAMERAWICKRAME, J.—Birdaramani e. Ratnavale
119
S.A. de Smith : Judicial Review of Administrative Action (2nd Edition)page 315 states, “ If a discretionary power haB been exercised for anunauthorised purpose it is generally immaterial whether its repositorywas acting in good faith or in bad faith. But where the courts havedisclaimed jurisdiction to determine whether the prescribed purposeshave in fact been pursued, because the relationship between the subject-matter of the power to be exercised and those purposes is placed withinthe sole discretion of the competent authority (as where a power isexercisable if it appears to that authority, or expedient for the furtheranceof those purposes), they have still asserted jurisdiction to determinewhether the authority has in good faith endeavoured to act in accordancewith the prescribed purposes There iB in law a presumption of goodfaith in favour of an authority making an order and therefore the Bameconsideration cannot apply as in the case of a challenge to objectivefacts which are conditions precedent.
I have dealt' with thiB matter as there waB a lengthy argument on itaddressed to us by Mr. Nadesan. It appears to me however that thequestion of onus only arises where the evidence on either side is evenlybalanced. In this case the petitioner has failed to make out the allegationmade by him which was the basis of his application and upon all theevidence there is no difficulty in coming to a decision on this matter.Where such are the facts of a case, onus is immaterial. In Robins v.National Trust Co1., 1927 A.C. 515 at 520 Lord Dunedin said, “ Onus as adetermining factor of the whole case can only arise if the tribunal findsthe evidence pro and con so evenly balanced that it can come to noconclusion. Then the onus will determine the matter. But if thetribunal, after hearing and weighing the evidence, comes to a determinateconclusion, the onus has nothing to do with it, and need not be furtherconsidered.”
I am therefore of the view that the Detention Order is valid and that
P. Hirdaramani is lawfully detained under Regulation 18 (1) of theEmergency (Miscellaneous Provisions and Powers) Regulations, No. 6of 1971.
Regulation 55 was cited to us. It reads: —
" Section 45 of the Courts Ordinance shall not apply in regard to
any person detained or held in custody under any emergency
regulation.”
In view of my finding that B. P. Hirdaramani is detained underRegulation 18 (1) this clause will exclude the grant of relief under seotion46 of the CourtB Ordinance in his case. This is a further reason whythe application for a writ of Habeas Corpus must fail.
What the position would be if the detention order was invalid and thedetention of B. P. Hirdaramani was unlawful does not arise forconsideration. As there has been argument on it I will briefly state my
* (1927) A. O. 615 at 620.
120SAMERAWICKRAME, J.— Hirdaramani v. RcUnavale
view. Clause 55 refers to a.“person detained in custody ” it does notBtate “ purported to be detained ” or “ detained in custody under colourof any emergency regulation This regulation takes away the right tohabeas corpus. This is a valuable right for safeguarding individualliberty. A provision which restricts rights of this kind must be givenno greater effect than the plain meaning of the words require. In A. O,for Canada v. Hallet <Ss Carey Ltd. 1952 A. C. 427 the Privy Councilconstrued a provision and held that it did empower the taking away of aright but at page 450 Lord Radcliflfe stated the general principle thus,“ It is fair to say that there is a well-known general principle thatstatutes which encroach upon the rights of the subject, whether asregards person or property, are subject to a strict construction. Moststatutes can be shown to achieve such an encroachment in some form oranother, and the general principle means no more than that, where theimport of some enactment is inconclusive or ambiguous, the Court mayproperly lean in favour of an interpretation that leaves .private rightsundisturbed.”
In respect of the provision which I am considering the position isstronger as the plain meaning of the words leads to an interpretationthat would leave the right to the writ of habeas corpus undisturbed whenthe order of detention is invalid.
The question has been posed as to what has been gained by the inclusionof clause 55. It is no doubt true that in law the writ of habeas corpuswill not issue to review a valid decision of a statutory authority. Butit is also true that Courts sometimes tend to review such valid decisions.Amnon Rubinstein: Jurisdiction and Illegality at page 116 concludesa consideration of the topic with this passage :—
“ Logically, the writ of habeas corpus may issue only where thedecision can be incidentally disregarded as a nullity ; experience showBthat the courts, spuming logic, are ready to use the writ as a meansof reviewing and, in effect, of invalidating an otherwise valid decision.”
Section 45 of the Courts Ordinance empowers a writ to issue to bring up“ the body of any person illegally or improperly detained.” The use ofthe word “ improperly ” might be regarded as authorising a court toinquire into the propriety of a legal and otherwise lawful detention.Whether this is in law a possible view or not the draftsman may haveincluded the clause to preclude any possibility of a review by court of adetention made by a valid detention order in view of past experiencewhich, according to Rubinstein, showed that courts were sometimesready to review valid decisions. I
I am therefore of the view that Regulation 55 will not apply to thecase of a person unlawfully detained under an invalid detention ordermade in abuse of the powers conferred by Regulation 18 (1).
I would therefore dismiss the application.
Application dismissed.
1 (test) a. a. 427.