7
The point made above as regards Section 12(2) is very important, and contravenes the principle recommended by the Committee appointed in 1933 to consider Colonial deportation measures. That principle is broadly stated in paragraph 5 of the Report of that Committee as the responsibility each Colony or Protectorate should accept for its own undesirables which it should not thrust upon some other part of the Empire by using the instrument of deportation. The Committee's views as to what persons could be properly said to "belong" to a particular territory were embodied in Section 2(2) of the model Ordinance attached to the Report.
Section 12(2) spreads a very wide net and obviously enmeshes persons who under the provisions of the model Ordinance would be regarded as "belonging" to the Colony. It is specifically intimated in the further proviso to Section 9 that neither the possession of any travel document, Entry Permit or Certificate of Residence implies that the holder will be permitted to land, or, if allowed to land, that he will be permitted to stay in the Colony. There is clearly no difference in principle between expelling persons and forbidding their re-entry when these persons belong to a category who should not be expelled. I cannot see how this departure from principle can be justified except in the case of class (g) in Section 12(2) and I should have thought the seditionist or firebrand could be dealt with suitably under Defence Regulations. There is, of course, the right of appeal under Section 19, but a would-be entrant would hardly be likely to appeal on the ground that he "belonged" to the Colony, but rather on the ground that either he did not actually come within any of the categories under which entry was refused, or that there were mitigating circumstances justifying a relaxation of the rule. There is, of course, power by regulation under Section 20 to grant exemptions from exclusion, but if all persons who "belong" ought not to be excluded there should be a definite provision to that effect in the Ordinance itself.
I had perhaps better refer to the other criticisms in the preceding minutes. Section 5(4) is not objectionable, and though I do not remember having seen such provisions before in that form
I have certainly seen provisions compelling questions to be truthfully answered, and in the absence of any relieving phrase there would be no ground for inferring that incriminating statements could not be employed in other proceedings. The person interrogated is not a witness to claim protection under English rules of evidence, moreover witnesses in territories where the Indian Evidence Act, or adaptations of it apply, do not enjoy that protection.
I
Section 12(2)(d) is worded identically with Section 19(1)(a) of the Straits Settlements Aliens Ordinance (Cap.90). I do not know of any instances where we have taken objection to the phraseology. don't like it on account of want of precision in the wording, but probably specific diseases endemic in the Far East are in actual contemplation leprosy in the first category, smallpox and plague in the other.
I