044-NLR-NLR-V-63-P.-KANNUSAMY-Petitioner-and-THE-MINISTER-OF-DEFENCE-AND-EXTERNAL-AFFAIRS-Resp.pdf
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Kannueamy v. Minister of Defence and External Affairs
1961Present: T. S. Fernando, J.P.KANNUSAMY, Petitioner, and THE MINISTER OFDEFENCE AND EXTERNAL AFFAIRS, Respondent
S. C. 167 of 1961—Application for Bail
Bail—Power of Supreme Court to grant bail—Requirement that it should be conferredby statute—Detention under a removal ordei—Incapacity of Supreme Courtto admit the detained person to bail—Immigrants and Emigrants Act, Hr. 20 of194S (as amended by Act No. 1G of 1955), ss. 28 (1A), 28 (I)—CitizenshipAct, No. 18 of 1948 (as amended by Act No. 13 of 1955), e. 11A—CriminalProcedure Code, e. 390.
The Sujjreme Court has no common law power to admit persons to bail.
When a person against whom a removal order has been made in terms ofsection 28 of the Immigrants and Emigrants Act is arrested and detained undersection 28(1 A), the Supreme Court has no power, in the absence of any statutoryprovision, to admit him to bail pending the hearing of an application made byhim for registration os a citizen of Ceylon under the Citizenship Act.
Application for bail by a person detained under section 28 (1A) ofthe Immigrants and Emigrants Act.
S. Sharvanandu, with M. S. M. Nazeem and K. Thevarajah, for thepetitioner.
E. R. de Fonseka, Crown Counsel, as amicus curiae, on notice from theCourt.
Cur. adv. vult
T. S- FERNANDO, J.—Kannusamy v. Minister of
Defence and External Affairs
215
June 8, 1961. T. S. Fernando, J.—
At the conclusion of the hearing of argument in this matter I madeorder refusing the application for bail, but, in view of the fact that I wasinformed that this application was the first of its kind to be made to thisCourt, I stated that I would set down in writing my reasons for the orderI made. Accordingly, T set down below the reasons :—
A statement in the application made by the petitioner to this Courtrecites that a removal order in terms of Section 28 of the Immigrantsand Emigrants Act, No. 20 of 1948, as amended by Section 15 of theImmigrants and Emigrants (Amendment) Act, No. 16 of 1955, has beenmade in respect of the petitioner by the Minister. Sub-section (4) ofSection 28 enacts that the removal order shall be final and shall not becontested in any court.
It would appear that the petitioner had made an application forregistration as a citizen of Ceylon in terms of Section 11A of the Citizen-ship Act, No. 18 of 1948, as amended by the Citizenship (Amendment)Act, No. 13 of 1955. He has been informed that his application has beenrefused. The validity of the refusal of his application is being disputedby him in proceedings he has instituted in this Court on 4th March 1961(S- C. Application No. 104 of 1961) for the issue by this Court of a mandatein the nature of a writ of mandamus on the Minister requiring the latterto grant the petitioner’s application for registration. This Court, afterhearing counsel on behalf of the petitioner, has directed that notice doissue on the Minister to show cause why the prayer contained in Applica-tion No. 104 of 1961 should not be granted. The application to thisCourt is now awaiting argument and subsequent disposal.
The petitioner states that, pursuant to the removal order, he has beenarrested and is being detained within the premises of the Slave Islandpolice station. Power to arrest and detain a person in respect of whoma removal order has been made is conferred by Section 28 (1A) of theImmigrants and Emigrants Act. I am informed by counsel that thisCourt, when ordering notice to issue on the Minister in ApplicationNo. 104 of 1961, has directed that the petitioner be not removed fromCeylon pending the disposal of the application made to the SupremeCourt.
The application now before me is designed to obtain the release fromthe police station on bail of the petitioner pending the determination ofhis mandamus application. It is urged that it is just and equitablethat he should be so released. Before this Court-can order the petitionerto be released on bail the Court has to be satisfied that it has power tomake such an order. The petitioner’s counsel has referred me to thepowers conferred on this Court by the Criminal Procedure Code to grantbail, but felt compelled to admit that the exercise of the powers so con-ferred are limited to criminal proceedings. I am obliged to CrownCounsel who appeared in this matter as amicus curiae for bringing “to
216T. S. FERNAND(S, J.—Kamnusamy v. Minister of
Defence and External Affaire
my notice the ruling of De Sampayo J. in the case of GanapathpiUai 1that this Court has no common law power to admit persons to bail. Thatlearned judge there has refused to interpret the expression “ in any case ”occurring in Section 396 of the Criminal Procedure Code as extendingto a case other than the cases referred to in the two previous sectionsof that Code. Petitioner’s counsel conceded that he can point to nostatutory power of this Court to grant bail.
I must presume that the removal order made is prima fade valid. Thequestion whether it is liable to be quashed is still awaiting determination.The arrest and detention of the petitioner also being acts authorised bylaw, I must perforce be reluctant to make any order which might leadto a frustrating of the acts of the executive which have hitherto beenshown to be prima facie lawful.
Application refused.
1 (1920) 21 N. L. R. at 491.