CASE OF POLITICAL been actually commenced and re-
REFUGEES.
(Continued from Page 1.)
Presenting his argument, Mr. Jenkin said that he would first of all make a summary of his points, which he would argue in respect of both Orders. He would divide the argument under two heads, which he might term political and non-political grounds.
sulted in a discharge.
Non-Political Points.
The non-political points put for- ward by counsel were in support of an argument that the second Order
under it, because:- was bad, as was everything done
(a) In issuing the first Order the Executive exhausted its power to issue any further Deportation Order against this applicant, at the present period.
(b) The second Order was issued during the
currency of the first one. There cannot be two
same time, for the same purpose.
(c) The issue of the second Order before, instead of after, the applicant'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.
66
the Imperial Parliament revived the power of expulsion, but it was important to note that they at once put on the Statute Book as part of that Act a prohibition against the expulsion of anybody for a political offence. Thereby they perpetuat- ed the stand taken by the then British Foreign Clarendon, in 1858, in connection Minister, Lord
with an attempted assassination by a man named Orsini. Lord Claren-
don had then said that there was "no consideration on earth which could have induced the British Parliament to pass a law for the extradition of political prisoners." "Unfortunately, Lord Clarendon could not have conceived of the exigencies of the Great War," said counsel. "Because the Imperial Parliament, at а time of very grave national danger, in 1914, by the Aliens' Restriction Act, passed the day after War broke out, hand- (d) The second Order can be ed power to the Executive, were it made only if the Governor-in-so willed, virtually to hand back Council considers it conducive to a political refugee under the public good, and in this case the process of deportation. the making of the second Order was Although that
Act was for a not impelled by any such considera-limited period, it is now continued tions.
from year to year by the Expiry
"Executive" Defined. "In the course of my submis- sion I shall refer frequently to separate Orders outstanding at the the 'Executive.' By that term I shall include the Governor, the Governor-in-Council, and also His Majesty's Government in Britain. I do that for the reason that in the two letters read by Your Lordships, and written by the Crown Solicitor on August 13 and 14 respectively, there is the clearest indication that the Local Government will not act without the authority of His Majesty's Government. Furth more, will be within the recollection of Your Lordship the Chief Jus- tice that when the Attorney- General applied for a date for the hearing of this matter he stated that he was under express in- structions from His Majesty's Government."
Political Points. Mr. Jenkin then submitted the points of his summary,
which
were:-
Political-1.-The Courts have jurisdiction to prevent misuse of executive power. This argument will apply to both Deportation Orders. The Orders are invalid in that there is an abuse of the powers conferred
upon the Local Executive. The Order is a sham in that under the cloak of deportation the Executive is in truth attempting to surrender the applicant to the French authori- ties for an offence of a political character.
2. Even if the Orders them- selves are valid in that on their face they do not disclose this duplicity, the subsequent ship- ping orders (to use that phrase comprehensively) of the Govern- ment, that the applicant shall be shipped on a French ship bound for Indo-China are invalid, and mask an illegality.
3 (a). The object of the De- portation Ordinance is deporta- tion pure and simple, or the get- ting out of the Colony of unwel- come guests.
(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.
(c) The reason for this is that if such a provision exists it is in direct conflict with the Imperial Extradition Acts, which are part and parcel of the laws of the Colony, and binding on the Execu- tive.
(d) These latter Acts in most express terms forbid such a course as is now being taken by the Execu- tive
in sending the applicant to Indo-China for an offence of a poli- tical character.
4. The proviso to Section 6 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
(e) The Order was not made at Act.
a duly convened or constituted "The position at Home was that meeting of the Governor-in-Council. the Extradition Act of 1870, which
(f)
The improper interrogation expressly forbade the surrender of by the Secretariat for Chinese political refugees, was an Imperial Affairs invalidates the second Act, and it is obvious that Order, as well as the first.
Mr. Jenkin, after making his points. thanked Their Lordship for noting them down so carefully. He wanted them to be on Their Lordship's record in case "a matter of this moment should go where."
the Imperial Parliament could at any time repeal or nullify an earlier act of its own. Therefore, although the Extradi- tion Act prohibits the surrender of political refugees, the Imperial else-Parliament, by the Act of 1914, did indirectly suspend the policy of Mr. Jenkin went on to submit the Extradition Act because of the that the Court would jealously grave conditions prevailing through- guard the rights of political offen-out the civilised world at that time. ders living under the protection of British laws, whatever their na- tionality, and would prevent a msuse of executive power.
"One can readily see, therefore, that in the Chateau Thierry case, the Court was in a position to say that even if the applicant was in fact a political refugee the Im- perial Parliament had, by the Act of 1914, in effect given them power (to deport).
Counsel went on to quote cases in support, with particular reference to the effect in Great Britain of the Aliens' Restriction Act of 1914, broke
Not Applicable Here. passed the day after War out. He made the submission that "But in this Colony or in every in none of these cases did any of Colony, where the Act of 1914 has the applications of principles by the not been extended, the position is Courts make any
distinction be- entirely different. The Executive tween aliens and British subjects. cannot by anything it does, take He also contended that by the laway the full force and effect of present Order something illegal | the prohibition contained in the was going to be done, because what Act of 1870." was permitted by the Aliens' Re- Answering the Chief Justice, Mr. striction Act of 1914, in Britain, Jenkin said that his submission that was expressly forbidden in this there was no local Ordinance which and other Colonies. "Both the was capable of being construed to Deportation Orders here have a purpose behind them which I allege is illegal, as is also the shipping order under them."
"The Courts in England," counsel added, "have clearly declared that they will not hesitate to interfere if there is any evidence before them
of misuse of executive power."
the effect that a political refugee could be handed back to a country with whom there are no extradition arrangements, or to a country, which although there are arrange- ments, has made no application for the handing over. Such a premise would lead to the gravest possible abuse, particularly in the case of countries where there was such an arrangement.
Referring to what was known as the Chateau Thierry case, counsel said that power had been granted
No Power of Legislation. there to deport a man on a speci- fied ship.
Mr. Jenkin repeated that short But there were cir- cumstances
of an Imperial Act being extend- in this case which
ed expressly to this Colony would defeat any argument based thing the Executive could do would upon that ruling.
no-
permit an Ordinance being passed Briefly outlining the history of here which contained a provision extradition in England, Mr. repugnant to either the express Jenkin said that up to 1905 there terms or the clear spirit of the was, for all practical purposes, no | Extradition Act of 1870. That was power to deport anybody at all. equivalent to saying that the Legis- There was on the Statute Book a iature here were not in a position few very exceptional cases in which to pass such an Ordinance.
In it could be done, but the right of fact, they were expressly prohibit- expulsion was for all practical pur-ed by Imperial Parliament from poses treated as non-existent. passing any Ordinance giving such
In 1905, by the Aliens Act of powers. that year, 5 Edward VII., Cap. 13,
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