35
onclosed Ordinance No 8 of 1882, "The
Pardons
Banishment and Conditional Ludons
!!
Ordinance, 1882.
2.
It
was
carefully
considered in Committee
by the
Legislative Council, and amended, before being passed in its present
shape.
I have the honour to be. My Lord, Your Lordship's Most Obradient
Humble Servant,
Beffumica
LEGISLATIVE COUNCIL.
A meeting of the Legislative Council was held yesterday afternoon. There were present :—
His EXCELLENCY the GOVERNOR. Hon. F, SNOWDEN, Acting Chief Justice. Hen. M. S. TONNOCHY, Acting Colonial
Secretary.
Hon. E. L. O'MALLEY, Attorney-General. Hon. W. M. DEANE, Acting Colonial Treasurer. Hon. P. RYRIE. Hon, NC CHOY.
BANISHMENT AND CONDITIONAL PARDONS
ORDINANCE.
HIS EXCELLENCY-Gentlemen, it will be in your recollection that on the 7th February, in opening the legislative session of this year, I men- tioned the fact that Her Majesty had been graci- ously pleased to confirm thirteen of the fourteen Ordinances passed in 1881. The only Ordinance which Her Majesty did not confirm was Ordi. nance 12 of 1881, entitled the Banishment and Conditinal Pardons Ordinance. With re- ference to that, I have received from Lord Kimberley a dispatch in which His Lord- ship states the reasons why he was unable to advise the Queen to confirm the Ordinance as it stood, and he suggested some amendments in it. Two are certainly of importance, bur the others are mostly verbal amendments. One amend- ment is that where the Governor in Council exercises the power conferred by this Ordi- nance the order of banishment shall contain the reason of the order, and Lord Kimberley says, "I am of opinion words to that effect should be added to the fourth section." A few other alte- rations are really verbal, but a very important amendment in the Ordinance as we passed it last year is made, because you will remember in that Ordinance occurred these words-
Any Justice of the Peace may lawfully arrest, or cause to be arrested, with or without warrant, any person whom he reasonably suspects to be an emissary or abettur of Her Majesty's enemies, or of pirates, or of Chinese disaffecte i to Her Majesty's Govern ment, or ochenvise dangerous to the peace and good order of this Colony, and safely keep tim until he can be dealt with according to law.
Well, I had some little doubt myself as to whether the time had not come when that section might have been repealed. It had been re-enacted in 1876, the year before my arrival. However, I allowed it to stand; but Lord Kimberley says, "The section in question was originally intro- duced for political considerations which do not apply to the present condition of the Colony. I think, therefore, that the section may be alto- gether omitted as being no longer necessary." This is a significant and most satisfactory com- mentary on the present state of the Colony and our improved relations with China. Now, the history of the Ordinance thus brought to its present stage is briefly this, that in December, 1876, Sir Arthur Kennedy passed, with your advice, an ordinance which was, as the preamble states, an ordinance to consolidate and amend the enactments in force in the Colony in relation to deportation, conditional pardons, branding, and the punishment of criminals. That Ordinance was the last that sir Arthur Kennedy sent home to the Secretary of state. It was returned to me by Lord Carnarvon, and my hon. friend (Mr. Ryric), who was on the Police Committee, will remember I laid the correspondence before them and his Lordship pointed out what he considered objectionable provisions. Some of the provisions he did not notice occurred to me as being open to objection, and I took the responsibility of in- forming him I would consider the question whether the whole of the branding clauses might not be struck out and other changes made, and with your advice and hearty co-operation those changes have been made, and now to-day we have before us this Ordinance, which has been amended by Lord Kimberley twice. After I sent home my report upon the whole subject, he expressed his views upon it and instructed me to have another Ordinance prepared. The learned Attorney Ge- neral accordingly prepared an Ordinance, and that is the Ordinance we passed last year, but on further consideration Lord Kimberley has made the alterations to which I have referred. With these amendments, I now propose to submit the Ordinance to you to be read a first time. in accordance with the practice hitherto, where a Bill is put before the Council which is somewhat similar to one that has been previously passed,
I will ask you to suspend the standing orders, if there is no objection, and pass it through its various stages.
The Bill having been read a first time, the standing orders were suspended and the Council, went into Committee upon it.
Hon. NG CHOY said section 2 was a new one, and it was one he would like to see omitted from the Bill. It gave very large powers to the magi strate. It said-
C. O.
6568
When any Chinese person having been convicted of audi punishable by impris amear has within twelve months after the expiration of any term of imprisonment which he may have suf fered for such offence been convicted of any offence punishable by imprisonment, such Chinese person may at any time be raquire) by any Magistrate to find reasonable security for his appearance in any Court for any purpose, and at any time within twelve months, and every adjudication to that effect shall be made in open Court, and reported forthwith to the Governor; and such Chinese not finding such security shall be deemed a person dası- gerous to the peace of the Colony.
The ACTING COLONIAL TREASURER said the last part of the section to which the hon. member referred was section 21 of Ordinance 8 of 1858. | That was repealed by the schedule, and in the present Bill the provision was modified. By the old Ordinance the Magistrate had the same powers as were conferred upon him by thenew Ordinance, but the latter contained the qualification that he was not allowed to exercise the power be could have have exercised under Ordinance 8 o 1858 unless a second offence had been committed Under the old Ordinance he could have exercised the power ifonly one offence had been committed, or no offence at all.
1 The ATTORNEY-GENERAL said that whereas by Ordinance 12 of 1881 section 3, any magistrate might cause any Chinese person to find reasonable security, under the new Ordinance that power was limited, and not any Chinese person could be called upon to give security, but any Chinese person who came within a limited category, namely, any person who, having been convicted of an offence punishable by imprisonment, had within twelve months been again imprisoned.
Hon. NG CHOY said he was quite aware of the section referred to by the Acting Colonial Trea- surer, section 21 of Ordinance 8 of 1858, but that Ordinance was passed in 1858, and the question was whether it was necessary to re-enact it in 1882. It applied exclusively to Chinese, and any Chinese who had been twice convicted might be required to give security. There was no precedent for that in English law; it was a special and very extraordinary power. That power was necessary at the time the Ordinance was passed, but the question he would sub.nit was whether it was necessary at the present time; and, if so, why single out Chinese as the only persons to be dealt with in that way?
The ATTORNEY GENERAL said he thought it would be very objectionable to remove the word Chinese from the section and make it apply to other nationalities. There were certain relations with other nationalities which would make it difficult to deal with, for instance, a Frenchman or a German under an Ü¡dinance of this kind. It required very careful consideration before it was adopted in their case. It was not so with Chinesc.
His EXCELLENCY --Clause 3 gives the power. The ATTORNEY GENERAL-I know,; but the power is one which is exclusively given to the Governor in Council.
The ACTING COLONIAL TREASURER said the section simply enabled the magistrate to report a man to the Governor, so that he could be dealt with under clause 3, which enabled the Governor to deport him.
The ATTORNEY-GENERAL said there were a great number of provisions applicable in 1858 which might not be applicable in 1882, but he would venture to think a stringent provision of this kind applicable to a limited class in 1858 was equally applicable to that same class in this year. It was a class strictly criminal. A man who had been once convicted and sentenced to imprisonment and again found himself within the walls of the gaol within twelve months put himself fairly within the category of the criminal class, and he thought an exceptional provision of this kind was not out of place with reference to that person.
The ACTING COLONIAL SECRETARY said he thought the objection might be met. Why should they not have in section 2 the same words as in section 3, and say "any person not being a natural born or naturalized subject of Her Majesty," taking out the word "Chinese" alto- gether. It would not make any difference, be- cause they might deem a man to be dangerous as long as they liked, but nothing followed upon that until he was brought under the operation of section 3-
The ATTORNEY-GENERAL said he knew of no precedent in the British dominions for such a
APR 92
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