6'
August 28, 1031]
CHINA OVERLAND TRADE REPORT
means
tended for. Under that construe. tion the officer would first direct the deportee's attention to a par- ticular requiring a reply. Here (( direct attention "
"iis- close part of the secret evidence." I am speaking with reference to the actual facts of this case. The deportee's reply would appear in- sufficient. The officer would then direct the attention of the de- portee to the particular a second time.
Here "direct attention " means "direct his attention to something of which he had know- ledge."
The same epuivocation occurs if you restrict the fur- ther reply
to the case where the deportee has happened in the first reply to hit on some point in the secret evidence.
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that procedure the person who is to be adversely affected, the deportee as I shall call him, is informed only of the allegations against nim. He is not allowed to know the evi- dence on which those allegations are based, or, at least, that evidence need not be disclosed to him. The Legislature has, however, introdue- ed two minor safeguards in the taking of the deportee's reply to the allegations. Reflecting that he may reply ambiguously or inexact- ly, the Legislature has provided that the officer taking his reply may put to him such further questions, to those prescribed by the Ordi- nance, as may seem to such officer desirable for the purpose of elucidating the answers of the de- portee. Reflecting also that in the case of a composite charge, i.e., 3. It is quite clear that in this where there are more allegations case questions were put which were than one, the deportee may through not justified on the construction of inadvertence fail to reply to a par- the sub-section which I believe to ticular allegation, the Legislature be the correct construction. The has provided that the officer taking officer may have asked them in all his reply may ask him additional good faith in the supposed interests questions for the purpose of direct- of the deportee, but they were im- ing his attention to any particular, proper. Such questions may result i.e., any particular allegation or in admissions which may be dam- part of an allegation to which he ning. In any case material evi- has failed to reply and which seems dence was in consequence put before to such officer, in the interests of the Governor-in-Council which the deportee, to call for a reply. ought not to have been put before Reflecting again that the deportee him, and that, in my opinion, may fail through inadvertence to makes the deportation order bad, reply sufficiently fully to some par- just as material evidence impro- ticular in the charge, the Legisla-perly admitted makes a conviction ture has also provided that the bad. officer taking his reply may direct the attention of the deportee to any such particular in the charge which seems to him, in the interests of the deportee, to call for a further reply.
2. The Attorney General argued in effect that the latter part of the sub-section empowers the officer in question to select at his discretion particular points in the secret evi- dence against the deportee and to put them to the deportee. How that officer is to decide which points
require a reply does not appear. One would imagine that all the adverse evidence would require a reply, but the officer is obviously not intended to put all the adverse evidence to him. A power 80 strange and improbable as that con- tended for would have to be con- ferred in the clearest terms, instead of the clear terms that we should expect in such a case we find the following:
(a) This wide novel power fol- lows without a pause a very re- stricted power to ask questions for the purpose of clucidating the answers of the deportee, questions such as might be asked of a pri- soner making a statement after caution, when being charged in an ordinary criminal prosecution.
(b) The power is to direct the deporter's attention to something. That phrase rather suggests some- thing which one has seen but of which one has missed the signi ficance. It does not appropriate phrase for disclosure of what had hitherto been con- cealed.
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seem an
(c) In " reply we have a word which may (at least) refer to the answer to question four. If it does. that would suggest that the reply is to be to something already put to the deportee in that question.
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(d) Further reply is inap- propriate to the construction con-
"SHAM UNDER CLOAK OF
293
Extradition Acts, which are part and parcel of the laws of this Colony, and binding on the Execu- tive.
(d.)-These latter Acts, in the most express terms, forbid such a course as is now being taken by the Executive in sending the ap- plicant to Indo-China for an offence of a political character.
4. The proviso to section six of the Deportation Ordinance cannot avail the Executive, although it is argued here by the Crown that it expressly permits the proposed course to be validly taken, except when extradition proceedings have been actually commenced and re- sulted in a discharge.
5. The second order is bad as is everything done under it because, (a) after issuing the first order the Executive exhausted its power to issue any further deportation order against this applicant at the pre- sent period.
(b) The second order was issued during the currency of the first order. There cannot be two separate orders outstanding at the same time for the same purpose.
“A Subterfuge.”
(c) The issue of the second order, before instead of after, the ap- Flicant's discharge on the first order, is a subterfuge to avoid the pitfall of again arresting, for the same cause, a person discharged on habeas corpus.
(d) The second order
can be "A CROWN SUBTERFUGE." made only if the Governor-in- Council considers it conducive to the public good and in a special case. The making of a second order was not impelled by any such considera- tions.
DEPORTATION."
Presenting his arguments, Mr. Jenkin said that he would first of all make a summary of the points under two heads, political and non- political, and he enumerated them as follows:-
-
1.-The Courts have jurisdiction to prevent the mis-use of Executive power. This argument will apply I shall call numbers one and two. to both deportation orders, which
The orders are invalid as an abuse of powers conferred upon the local Executive. Each order is a sham in that, under the cloak of deportation, the Exe- cutive is, in truth, attempting to surrender the applicant to the French Authorities for an offence of a political character. 2. Even if the orders themselves are valid in that, on their face, they do not disclose the duplicity, the subsequent shipping orders-to use that phrase comprehensively--of the Governor, that applicant shall be shipped on a French ship bound for Indo-China, are invalid and mask- ing an illegality.
3.--(a) The object of the De- portation Ordinance is deportation pure and simple-the getting out of the
guests.
Colony of any unwelcome
(b.)--If there is any provision in the Deportation Ordinance capable of the interpretation that it allows this course of conduct on the part of the Executive, it is wholly void and inoperative by reason of the Colonial Laws Validity Act, 1865. In Conflict With Imperial Acts.
(c.) The reason for this is that if such a provision exists it is in direct conflict with the Imperial
(e) The order was not made at a duly convened or constituted meet- ing of the Governor-in-Council.
(f) The improper interrogation by the Secretariat for Chinese Affairs invalidates the second order as well as the first.
Mr. Jenkin added that he was much obliged to their Lordships for taking down the points so carefully in case a matter of this moment might have to go elsewhere. In the course of quoting authorities, Counsel submitted that the Courts would jealously guard the rights of political offenders who were living within the protection of our laws, whatever their nationality, and would prevent mis-use of Exe- cutive power.
Political Offences.
In dealing with the deportation laws, Mr. Jenkin said that up to 1905 there was no power to deport any person. There were
on the Statute books a few cases for ex- pulsion, but the rights for expulsion were treated as non-existent. In
1905, by the Aliens Act of that year, the Imperial Parliament revived the powers of expulsion, but it was important to note that they put on the Act a prohibition for expulsion offence, thereby perpetuating, as of any person for રી political
Lord Clarendon when British Foreign Minister declared, that no consideration on earth could induce the British Parliament to pass a law for extradition of political prisoners.
While in a case, previously quot- ed, it was not clear that the person concerned was a political offender,
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