132-NLR-NLR-V-66-MRS.-S.-KANAPATHY-Petitioner-and-W.-T.-JAYASINGHE-Controller-of-Immigration-.pdf
Kanapathy v. Jayasinghe
549
1964Present: Alles, J.
MRS. S. KANAPATHY, Petitioner, and W. T. JAYASINGHE (Controllerof Immigration and Emigration) and another, Respondents
S. C. 501164—Application for a Writ of Habeas Corpus and forBail pending the determination of the Application
Bail pending habeas corpus proceedings—Incapacity of Court to grant it—Immigrantsan.i Emigrants Act {Cap. 353), as. 15 (a), 28 (a).
During the pendency of an application for a writ of habeas corpus, anapplication for bail in respect of the corpus cannot be entertained.
Accordingly, a person who is detained under the provisions of the Immigrantsand Emigrants Act will not be admitted to bail pending the hearing of anapplication made on his behalf for a writ of habeas corpus. 1
1 (1908) 1 K. B. 485, 489. affd. (1908) 2 K. B. 441.
8 (1916) 85 L. J. K. B. 1240, 1244 Lord Reading C.J.
8 (1869) L. R. 4 Ex. 126, 130 per Cleasby B.
550
ALLES, J.—Kanapathy v. JayOainghe
Application for bail pending the determination of an applicationfor a writ of habeas corpus.
M. Tiruchelvam, Q.C. with V. Kumaraswamy and M. Amerasingham,for the petitioner.
O.G. D. de Silva, Crown Counsel, for the respondents.
Cur. adv. vult.
September 8, 1964. Ax:les, J.—
When this application was listed before me on 4th September 1964,Crown Counsel asked for two weeks’ time to file affidavits. Counsel forthe petitioner thereupon made an application that the corpus who hadbeen detained under the provisions of Sections 28 (a) of the Immigrantsand Emigrants Act (Cap. 351) for a contravention of Section 15 (a) of thesaid Act, be released on bail pending the determination of the applicationfor habeas corpus by this Court. In view of Crown Counsel’s applicationfor time to file affidavits, I was inclined to forward the application for bailto the Magistrate so that he may consider whether this was an appropriatecase in which bail should be granted and if so the quantum of bail on whichthe corpus should be enlarged. In making his apjolication for bail,Counsel for the petitioner brought to my notice that in similar circum-stances, my brother Tambiah, J., had released the corpus on bail—(videHabeas Corpus Application No. 78/64 ; S. C. Minutes of 12/3/64). Inthat case, the question that was considered by my brother was the effect ofthe provisions of Section 46a of the Immigrants and Emigrants Act asamended by Act No. 68 of 1961, and inasmuch as the corpus had not beencharged with any offence to make Section 46a applicable, my brotherfelt justified in releasing the corpus on bail. But the more importantquestion is, whether in any event, an application for bail, as that term isunderstood in our law, can be entertained in habeas corpus proceedings.I have had the advantage of the assistance of Counsel on both sides indeciding this question, and at the conclusion of the argument, I madeorder refusing the appb'cation for bail and stated that I would give myreasons later. I now set out the reasons for the order that I havt made.
According to Halsbury, “ the writ of habeas corpus is a prerogativeprocess for securing the liberty of the subject by affording an effectivemeans of immediate release from unlawful or unjustifiable detention,whether in prison or in private custody ”. (Vol II p. 26, Simonds Edn.)It is therefore essential that any application for habeas corpus should beconsidered by the Court as expeditiously as possible. Inasmuch as thecomplaint is one of unlawful detention, the party making the applicationwould be equally interested in having the matter brought up before theCourts with the least possible delay in order to terminate the allegedunlawful detention. If, therefore, pending the hearing of the applicationthe corpus is released on bail without the merits of the application being
ALLES, J.—Kanapathy v. Jayasinghe
551
considered, a fortiori, the party making the application for habeas corpuswould have succeeded in the application without the Court consideringwhether the detention was lawful or not. It seems to me there fore that, inan application for habeas corpus, the concept of the corpus being releasedon bail pending the determination of the application by the Court is onethat is alien to habeas corpus proceedings. Counsel for the petitionersubmitted that under the English law, which he said was applicable, insuch an event the Court had the power to release a prisoner on bail, andcited in support a passage from Halsbury (Vol. 2. p. 47) where the learnededitor says that the Court had “ the power to bail the 'prisoner de die in diempending the argument as to the sufficiency of the writ ”. He also reliedon the following passage from Short and Mellor “ Crown Practice ”(1890 Edn.) in support of the same view :—
‘ ‘ So also in vacation, if a Judge considers the case too important todecide in chambers he may refer it to the Court and admit the prisoner tobail to appear in the following sittings. ”
Finally he cited the case of In re Amand1, where the application for habeascorpus was made after the applicant was arrested and detained in custodyand when he was released on bail. The Court however took the viewthat it made no difference that the applicant had been released on bail,and dealt with the application as if he were still detained in custody.Presumably the Court had to take this view of a notional detention as other-wise, the application for habeas corpus would not lie. The cases cited byHalsbury in support of the above proposition are very old ones decidedbetween 1647 and 1695, and Short and Mellor apparently refer to a periodin the history of the English courts when there were no vacation courts asthey exist today. Undoubtedly since the corpus is in the custody of theCourt once an application is made, it has power to make such orders as itdeems fit with regard to the custody of the corpus pending thedetermination of the application. When, therefore, reference is madeto a power to admit a corpus to bail, the term “ bail ” must nothe understood in the sense that we understand it in the CriminalProcedure Code—the release or setting at liberty of a person arres-ted or imprisoned either on his own recognizance or upon othersbecoming sureties for his appearance on a future date—but ratherthe transfer of control from prison to some other place approved byCourt but always to be under the surveillance of Court. Perhaps thissituation became necessary owing to the dearth of Courts available inearly times to deal with urgent applications and consequently the Judgewas compelled to have some make-shift arrangement for the safe custodyof the prisoner pending the determination of his application for release.Today, having regard to the multiplicity of Courts to deal with the mosturgent matter as expeditiously as possible the necessity of applying forbail in habeas corpus proceedings will hardly arise, and I am indeeddoubtful whether the common law of England today permits a person to bereleased on bail pending an application for a writ of habeas corpus. But,
1 (1941) 2 K. B. p. 239,0.1 249.
562
ALLES, J.—Kanapathy v. Jayasinghe
even if the common law of England does permit a person to be released onbail in such proceedings, in Ceylon, the Supreme Court has no common lawpower to admit persons to bail (In re Ganapathipillai x). Counsel for thepetitioner, to whom I am indebted for the assistance given to me,brought to my notice the case of Kannusamy v. The Minister of Defenceand External Affairs 2. I would respectfully agree with the view takenby T. S. Fernando. J., in that case that when a person is arrested anddetained in circumstances similar to the present case under the provi-sions of Sections 28 (2) (c) read with Section 28 (8) of the Immigrantsand Emigrants Act of 1948 as amended by Act No. 68 of 1961, theSupreme Court has no power to admit him to bail. Counsel for thepetitioner sought to distinguish Kannusamy's case on the footing thatthat was a case where the application was by way of a writ of mandamuswhereas the present application is one of habeas corpus. It seems to me,however, that whatever may be the nature of the application, it does notaffect the ratio decidendi in Kannusamy’s case that whenever a person isdetained under the provisions of the Immigrants and Emigrants Act, theSupreme Court has no power to admit him to bail pending the hearingof any application.
In this order I have only dealt with the question of bail. The validityof the removal order is one that has still to be determined by this Court indue course.
1 (1920) 21 N. L. R. 491.
Application for hail refused.8 (1961) 63 N. L. R. 214.