In Re Mark Antony Lyster Bracegirdle

1937   Present: Abrahams C.J., Maartensz and Soertsz JJ
.
In the Matter of an Application for a Writ
of Habeas corpus

 upon the Deputy Inspector-General of Police.

In re MARK ANTONY LYSTER BRACEGIRDLE.

Writ of habeas corpus-Order in Council of October, 1896-Power of Governor to order a person to quit the Colony-State of emergency-Amending Order in Council of 1916-Power of Courts to inquire into conditions to be fulfilled before the issue of order-Order in Council, October" 1896, s. III.,3.

The power given to the Governor under Article III., 3, of the Order in Council of October, 1896, to order any person to quit the Colony and, on refusal on the part of such person to obey the order, to cause him to be arrested can be exercised only in a state of emergency contemplated by the preamble to the amending Order in Council of March, 1916.

The nature of the emergency would be a state of war or grave civil disturbance, real or imminent.

Per ABRAHAMS C.J.-The Supreme Court is entitled to inquire whether the conditions necessary for the exercise of the power in the Order in Council have been fulfilled.

Held also by the Chief Justice that if the order of the Governor was valid, His Excellency could authorise the Police to effect the arrest.


THIS was an application for a writ of habeas corpus for the production of the body of Mark Antony Lyster Bracegirdle, who was detained by the respondent on an order issued by His Excellency the Governor authorising him to arrest the said Bracegirdle and to place him on board a ship bound for Australia. The arrest was made in pursuance of an order issued by the Governor requiring Bracegirdle to quit the Island within four days, an order which the latter refused to comply with.

llangakoon, K.C., A.-G. (with him Wijeyewardene, S.-G., and Pulle, C.C.), for the Crown.-Mr. Mark Antony Lyster Bracegirdle is produced in obedience to a Mandate issued by Your Lordships' Court. Reads affidavit of Deputy Inspector-General of Police.

The authority under which he is held in custody is a warrant issued under the hand of His Excellency the Governor by virtue of the provisions of clause 3 of Article III of the Order in Council of October 26, 1896, published in the Gazette of August 5, 1914, as amended by a later Order in Council of March 21, 1916, published in the Gazette of June 5, 1916. By an order dated April 20, 1937, the Governor directed Mr. Bracegirdle to quit the Island on or before April 24, 1937. As that order was not obeyed, the Governor issued a subsequent order for the arrest and deportation of Mr. Bracegirdle. (Reads affidavit from the Secretary to the Governor, Mr. E. R. Sudbury, stating that he was informed by the Governor that the order was issued by him because he was satisfied on the information he had that circumstances had arisen which in the public interest made it necessary for him to act in that way.)

[ABRAHAMS C.J.-What is the purpose ?]

It is merely to show that His Excellency had brought his mind to bear on the Matter and that he had the necessary authority for making that

order. My position is that His Excellency has very wide powers given to him under this clause of the Order in Council and under the Order in Council as a whole, and he had full power to make the order in question.

[ABRAHAMS C.J.-Are you going to contend that we cannot inquire into the reasons for the exercise of His Excellency's powers ?]

That will be my submission. Your Lordships will see that the wording of clause 3 is in clear and unmistakable terms. The position taken up by the petitioner- is, firstly, that the Governor can only exercise these powers on the arising of an emergency, and secondly, that no such emergency has arisen.

[F. DE ZOYSA, K.C.-I do not know whether the Attorney-General should state his case, and I should reply or whether I should state my case first and the Attorney-General should reply.]

[ABRA

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