"THE CHINA MAIL 25. 8.31.
GOVERNOR'S POWERS
DEFINED.
Admission in Habeas Corpus Hearing.
JUDGMENT RESERVED.
Judgment was reserved at the conclusion of the hearing of the habeas corpus applica- tion made by Sung. Man-cho, this morning.
In the course of the hearing, the Attorney-General, Mr. G. C. Alabaster, said that he could not contend that the Order made in the first place was made in accordance with the Statutory procedure of sub- section 3a, and therefore, whichever way the matter was looked at, the first Deporta- tion Order must be considered nugatory from the start. There was no necessity for it to be set aside, for it never had any legal existence.
But the Governor-in-Coun- cil had also, and at the same time, power to issue a separate Deportation Order in certain other events. They must be such that the Governor-in- Council deemed it conducive to the public good, to make the Order.
Governor's Powers.
Mr. Alabaster submitted that the Deportation Ordinance would be not properly carried out if a person who once got off owing to a defect in the first Order (not on the merits of the case, but owing to defect in the procedure leading up to the Or- 'er) could not be proceeded with again, by a proper procedure either under the same section, or as happens in this case, under an entirely different section.
"My friend inferred yesterday that the Executive having had the first Order fail, could not use another Order, at least for a very long time. He inferred further that such an argument was ab- surd, by the mere addition of the words as to "a long time." He realised there had to be some reservation.
"The object of this Ordinance is to get rid of an undesirable person, and if you take, a wrong procedure, and that procedure is nugatory, there is nothing in the Ordinance to prevent your tak- ing, either subsequently or con- temporaneously, the right proce-
dure."
Governor-in-Council.
Another point was brought up by the Attorney-General, when he stated that he understood the question of the Governor-in- Council had been brought up at yesterday's hearing. The Inter- pretation Ordinance had been mentioned.
64
GOVERNOR'S POWERS
DEFINED.
(Continued from Page 1.)
Local Powers.
Yesterday afternoon Mr. Jenkin continued his review of the objects of local Deportation Ordinances. The history menced with the Banishees' Or- dinance of 1882, giving power to the Governor to prohibit re-
con-
"I submit that that Ordinance goes the whole way," he said. “We have had a request, which I saw for the first time this morning-in fact, it was only written this morning- asking that Mr. N. L. Smith. (clerk of the Council) be present at the Court at 10 a.m. this morning, so that if necessary he may be ques-sidence in the Colony for a tioned as to the making of the second Order, dated August 15.
No Power To Examine.
"I submit that neither Mr. Smith nor any member of the Council should answer any question as to this procedure. When the Order is made by the Governor-in-Council it is made as stated in the Inter- pretation Ordinance, and it must be presumed that members of the Council cannot be asked questions thereto. Mr. Smith, however, is here.
Mr. Alabaster submitted that the Order made under section 1-c, was good, as were the questions thereto.
The Chief Justice:-I should say that prima facie Mr. Smith could not be asked questions as to what happened in the Council as to dis- cussion and procedure. But I think he can be asked if a meeting was held.
(Continued on 'Page 7.)
Some discussion ensued be- tween the Chief Justice and coun- sel, as to the meaning of Gov- ernor-in-Council. The Chief
Justice said that Governor-in- Council means the Governor act- ing with the advice of the mem- bers of the Council, but neces- sarily in such Council assembled. That was the Interpretation Or- dinance.
Mr. Jenkin concluded his case by referring to the "inproper" interrogation by the S.C.A. ̃ ̄offi- cial, which he claimed invalidated the second Order as well as the first
:
period not exceeding five years. Counsel outlined the powers con- ferred by that Ordinance.
As regards the Deportation Ordinance of 1912, its object was to provide for the deporta- tion of undesirable aliens, and certain other persons. Amenda- tions had been made right up to the present year.
Applicants' Admission.
After considering definitions of what constituted a "political offender," counsel went on to read extracts from various affida- vits, including one made by the applicant in which he admitted being closely identified with the revolutionary movement in An- nam and Indo-China. This was an offence punishable under the French law by death. He was wanted by the French authorities in Indo-China. He alleged that the Hong Kong Government were trying to deport him so as to hand him over to the Indo- China authorities.
Mr. Jenkin then took up his points as to the second Order be- ing a bad one, claiming that
there could not be two orders ir existence at the same time. There was no jurisdiction to first was discharged. An arrest issue a second order until the
under the second Order, even if the first had been discharged, was contrary to established law, that one could not re-arrest a man who had been discharged under habeas corpus for the same cause. matter, or pretext.
"A Subterfuge.”
Mr. Jenkin then again submit- ted that the Order was a subter- fuge. He also commented upon the date of the second Order, August 15, which was a Satur- day. That meant that the Exo- cutive sat on a Saturday, which was a statement he would chal- lenge.
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