DIVISION: IN THE HIGH COURT, ACCRA
DATE: 9TH JANUARY, 1961
BEFORE: ADUMUA-BOSSMAN, J.
CASES REFERRED TO
(1) R. v. Secretary of State for Home Affairs; ex parte Lees [1941] 1 K.B. 72
(2) Liversidge v. Anderson [1942] A.C. 206, H.L.
(3) Greene v. Secretary of State for Home Affairs [1942] A.C. 284, H.L.
(4) R. v. Secretary of State for Home Affairs; ex parte Budd [1942] 2 K.B. 14
(5) Cox v. Hakes (1890) 15 App. Cas. 506
(6) Secretary of State for Home Affairs v. O’Brien [1923] A.C. 603
(7) R. v. Massey (1817) 6 M. & W. 108; 105 E.R. 1183
(8) Re Newton (1849) 13 Q.B.D. 716
(9) The Five Knights Case 3 How. State Trials, 1
(10) Re Hastings (No. 2) [1959] 1 Q.B. 358; [1958] 3 W.L.R. 768; [1958] 3 All E.R. 625
(11) R. v. Shebbeare (1758) 1 Burr. 460; 97 E.R. 403
(12) R. v. Mead (1758) 1 Burr. 541; 97 E.R. 440
(13) R. v. Clarke (1758) 1 Burr. 606; 97 E.R. 471
(14) In re Newton (1855) 16 C.B. 99; 139 E.R. 692
(15) In re Clarke (1842) 2 Q.B. 619; 114 E.R. 243
(16) Ex parte Lees (1860) El. & Bl. 829; 120 E.R. 718
(17) R. v. Rogers (1823) 3 Dow. & Ry. (K.B.) 607; sub nom. Rogers Case 2 L.J. K.B. (o.s.) 44
(18) R. v. Douglas (1842) 12 L.J. Q.B. 49
(19) R. v. Mallinson (1851) 16 Q.B. 367; 117 E.R. 920
(20) Re Authers (1889) 22 Q.B.D. 345
(21) R. v. Bolton (1841) 1 Q.B. 66; 113 E.R. 1054
(22) Mayor of London v. Cox (1867) L.R. 2 H.L. 239; 36 L.J. Ex. 225; 16 W.R. 44, H.L.
(23) Crawford’s Case (1849) 13 Q.B. 613; 116 E.R. 1397
(24) Hobhouse’s Case (1820) 3 B. & A. 420; 106 E.R. 716
(25) R. v. Flower (1799) 8 T.R. 324; 101 E.R. 1408
(26) Leonard Watson & Ors. Case (1839) 9 Ad. & E. 731; 112 E.R.1389
(27) Ex parte Zadig [1917] A.C. 260, H.L.
(28) R. v. Cowle (1759) 2 Burr. 834; 97 E.R. 587
(29) Ex parte Anderson (1861) 3 El. & El. 487; 121 E.R. 525
(30) Att.-Gen. v. Stewart (1817) 2 Mer. 144; 35 E.R. 895
(31) Mayor of Lyons v. East India Co. (1836) 1 Moore 175; 12 E.R. 782 (32) Eleko v. Officer Administering the Government of Nigeria [1928] A.C. 459, P.C.
(33) Zabrovsky v. G.O.C. Palestine [1947] A.C. 246
(34) Ayoub v. Farouqui [1941] A.C. 274
(35) Ali v. Jarayatne [1951] A.C. 66; 66 T.L.R. (Pt. 2) 214, P.G.
NATURE OF PROCEEDINGS
APPLICATION for writ of habeas corpus.
COUNSEL
Dr. J. B. Danquah for applicants.
A. N. E. Amissah for respondents.
JUDGMENT OF ADUMUA-BOSSMAN J.
As permitted by Order 59, rule 9 of the Supreme Court (Civil Procedure) Rules, 1954, which provides that:
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“An application for a writ of habeas corpus ad subjiciendum shall be made to a Judge in Court, except that:—
(a) in vacation or at any time when no Judge is sitting in Court it may be made to a Judge sitting otherwise than in Court;” an application in the form of a motion was filed for consideration of hearing “Coram Mr. Justice K. A. Bossman” by counsel Dr. J. B. Danquah on behalf of Emmanuel Obed Kofi Dumoga and twelve others of the Volta Region, for an order for writs of
habeas corpus to issue, directed to the Minister of the Interior and the Director of Prisons, both of Accra, to show cause why the said Emmanuel Obed Kofi Dumoga and twelve others now detained in James Fort Prison, Accra, should not be released from their detention to which they were subjected under an order made by Lord Listowel, Governor-General, on the 14th day of March, 1960, under Preventive Detention Order, E.I. 69/1960 and Preventive Detention (No. 2) Order, E.I. 70/1960 and/or for any other order or orders as to the judge may seem meet, and for bail.
The motion was supported by an affidavit which disclosed that the applicants were thirteen out of
fourteen persons who were arrested on the 14th March, 1960, and were being detained under the executive instruments or orders specified in the motion paper as well as the affidavit, which were issued under section 2 of the Preventive Detention Act, 1958 and were duly gazetted. (See Supplement to Gazette No. 26 dated the 19th March, 1960, at p.70). Copies of the said orders were annexed as exhibits A2 and A3 to the affidavit. The affidavit further disclosed that following the arrest of the applicants on the 14th March, 1960 they were on the 18th March, 1960, duly served with
the grounds of detention, a copy whereof was also annexed to the affidavit as exhibit A1.
The affidavit then proceeded to set out in succeeding paragraphs how the applicants, in spite of the difficulties and hardships occasioned by their detention, were able to prepare and to supply to Dr. Danquah, their solicitor, material, mainly in the form of written statements and other forms of
information, whereby he was able to prepare and submit a petition on their behalf to the Governor-General, by way of denying and/ or repudiating the acts prejudicial to the security of the state which had been attributed to them; secondly, of giving such explanations as they had, severally
and collectively, of the acts attributed to them, and finally praying for their release from detention. A copy of the petition was also annexed to the affidavit as exhibit D. The affidavit then went on to complain at some length in further succeeding paragraphs, that as from the 29th June, 1960, when the petition was presented to the Governor-General, and a copy supplied to the Minister of the Interior, in spite of several letters sent on behalf of the applicants enquiring about a reply, no reply was received nor was any action taken towards the release of the applicants, wherefore they had been obliged after
being in detention for about seven months to make this application to the court. The affidavit did not, however, conclude with that paragraph—the tenth paragraph—explaining how the applicants had been obliged to resort to the court.
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It continued with various other allegations contained in 21 further paragraphs, so that the total number
of paragraphs was 31 in all. These other allegations included repetitions of the denials and/or repudiations of the charges in the grounds of detention served on the applicants and explanations as to some of those acts, as already set out in the petition, exhibit B, with additions. These denials and explanations as to the charges in the grounds were followed by allegations in a number of paragraphs of the affidavit, the substance of which was that the Governor-General had been grossly misled by political antagonists of the applicants who entertained considerable malice against them to make the orders resulting in their arrest and detention; and that in fact, some of these political opponents, who
were high-ranking agents of the government and whose names were mentioned in the petition as well
as the affidavit, had threatened some of the applicants with arrest and detention shortly before the applicants were actually arrested under the executive instruments. Then there followed allegations that
such emergency, if any, as the Governor-General was apprehensive of and to take precautions against
which he had issued the executive instruments for the arrest and detention of the applicants, had
passed, and there was therefore no further cause for the continued detention of the applicants. Next
came allegations that the acts attributed to the applicants, if true, constitute definite offences under the
Criminal Code, Cap. 9, (1951 Rev.)1(1) and that section 3 of the Criminal Procedure Code, Cap. 10, (1951 Rev.)2(2) made it mandatory or obligatory on the part of the government to cause the applicants to be prosecuted, but not to be detained without trial, and that the detention of the applicants in all the circumstances was contrary to the true intent and purpose as well as the proper
interpretation of the Preventive Detention Act, 1958. The affidavit finally, in a number of concluding
paragraphs, referred to rights conferred on the applicants by Magna Charta3(3), the Universal Declaration of Human Rights, and the Habeas Corpus Acts4(4), particularly the Act of 1816, by section 3 of which the applicants have the right that the judge shall enquire into the truth of the facts set forth in the return, the document setting out the causes for detention, and where it appears doubtful shall bail the person confined.
And on all these several allegations, explanations and/or ground so set out in the said affidavit, order was prayed for the issue of writs of habeas corpus, in terms of the motion paper.
It is beyond question — and the application itself, both motion paper and supporting affidavit, admit the fact — that the applicants were arrested and are being detained under the executive instruments or orders duly made and published under authority and/or powers conferred by the Preventive Detention Act, 1958, copies of which executive instruments the applicants themselves have exhibited to their affidavit as exhibit A2
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and A3. Furthermore, it is also beyond doubt that the requirements of the enabling Act have been complied with in that the applicants were duly served on the 18th March, 1960, with the grounds of detention following their arrest on the 14th March, 1960. That being so it follows, as clearly and
unmistakably provided by section 3 (1) of the enabling enactment, that the applicants as the persons against whom the orders were made, shall, while detained in pursuance of the orders, be in lawful custody.
Apart from that clear and definite provision of the Act of our local legislature, there came to my mind also on seeing and perusing the papers, the position clearly and unambiguously established by the
English cases dealing with this type of exercise of expressly conferred authority and/or power to arrest and detain for purposes or reasons of security of the State, namely:
(1) R. v. Secretary of State for Home Affairs; ex parte Lees5(5).
(2) Liversidge v. Anderson6(6).
(3) Greene v. Secretary of State for Home Affairs7(7).
(4) R. v. Secretary of State for Home Affairs; ex parte Budd8(8).
In the last of them, Budd’s case, Lord Greene, M.R. said as follows:—
“Before stating and examining the grounds on which the legality of the detention is disputed, it is desirable to make some general observation on the law affecting cases of this kind.
“The principles applicable were to be found in two recent decisions of the House of Lords: Liversidge v. Anderson and Greene v. Secretary of State for Home Affairs. The former case arose for decision on the
application of the plaintiff for particulars of the defence in an action claiming damages for false imprisonment, the latter on application for a writ of habeas corpus. In each case the decision was based on the view of the House on the substantial issue involved, namely, whether it is open to any court to
inquire into the reasonableness of the belief of the Secretary of State in the matters in which the regulation requires him to have reasonable cause to believe before a detention order can be made. The regulation in question in those cases was reg. 18 B(I), but the principles laid down are equally applicable to cases arising under reg. 18 B(IA). The latter regulation is rather more complicated than the former in that the organization referred to in it must be an organization as respects which the Secretary of State is ‘satisfied’ that it complies with one or the other of the two descriptions set out in the regulation. It is clear that if the courts have no power to inquire into the reasonableness of the belief of the Secretary of State in the matters in which he is required to believe, they can have no power to inquire into the grounds of his satisfaction in regard to matters of which he is required to be satisfied.
“The opinion of the majority of the House on the substantial issue appears clearly from the following extracts from the speeches in Liversidge v. Anderson.”9(9)
He went on to refer to the extracts comprising the authoritative statements of their respective opinions on the substantial question at issue, made by four of the Law-Lords as follows:—
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(a) per Lord Maugham, L.C.:
“The result is that there is no preliminary question of fact which can be submitted to the courts and that in effect there is no appeal from the decision of the Secretary of State in these matters provided only he acts in good faith.”10(10)
(b) per Lord Macmillan:
“I am unable to accept a reading of the regulation which would prescribe that the Secretary of State may not act in accordance with what commends itself to him as a reasonable cause of belief without incurring the risk that a court of law would disagree with him.”11(11)
(c) per Lord Wright:
“On the view that I have formed that there is, under reg. 18B, no triable issue as to reasonableness for the court, these authorities cease to be of any value. As administrative plenary discretion is vested in the Home Secretary, it is for him to decide whether he has reasonable grounds and act accordingly. No outsider’s decision is invoked, nor is the issue within the competence of any
court.”12(12)
(d) per Lord Romer:
“If at the trial the Home Secretary gives rebutting evidence to the effect that, in his opinion, there were reasonable grounds for his belief, his statement, being a mere statement as to his opinion, must necessarily have to be accepted unless it can be shown that he was not acting in good faith, and the onus of showing this would lie upon the appellant.”13(13) The learned Lord Chancellor then concluded by making this definite and categorical enunciation of principle as follows:
“It is scarcely necessary to say that language used in earlier decisions which may suggest that the courts
may inquire into the reasonableness of the belief of the Secretary of State cannot now be regarded as correct.”14(14) Having regard therefore to the clear and emphatic terms of section 3 of the enabling enactment hereinbefore set out, and the legal position disclosed by the relevant English authorities to which I
have referred, my reaction and inclination after hearing counsel for the applicants at considerable
length and for the best part of the morning when the matter first came before me on the 19th November, 1960, was to dismiss the application summarily. [His lordship then, as a compliment to the fervour with which counsel had argued on behalf of the applicants, exhaustively reviewed the history of the operation of the writ of habeas corpus at common law and how it was in course of time affected
by statutes enacted by the British Parliament. He referred to the following authorities: Cox v. Hakes
(1890) 15 App. Cas. 506; Secretary of State for Home Affairs v. O’Brien [1923] A.C. 603; R. v. Massey (1817) 6 M. & W. 108; 105 E.R. 1183; Re Newton (1849) 13 Q.B.D. 716; The Five Knights
Case 3 How. St. Tr. 1; Re Hastings (No. 2) [1958] 3 All E.R. 625; R. v. Shebbeare (1758) 1 Burr.
460; 97 E.R. 403; R. v. Mead (1758) 1 Burr. 541; 97 E.R. 440; R. v. Clarke (1758) 1 Burr. 606; 97 E.R. 471; Re Newton (1855) 16 C.B. 99;
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139 E.R. 692; Ex parte Lees (1860) El. & Bl. 829; 120 E.R. 718; Re Clarke (1842) 2 Q.B. 619; 114 E. R. 243; R. v. Rogers (1823) 3 Dow. & Ry. (K.B.) 607; R. v. Douglas (1842) 12 L. J.Q.B. 49; R. v.
Mallinson (1851) 16 Q.B 367; 117 E.R. 920; Re Authers (1889) 22 Q.B.D. 345; R. v. Bolton (1841) 1 Q.B. 66; 113 E.R. 1054; Mayor of London v. Cox (1867) L.R. 2 H.L. 239; Crawford’s Case (1849)
13 Q.B. 613; 116 E.R. 1397; Greene v. Secretary of State for Home Affairs [1942] A. C. 284; Hobhouse’s Case (1820) 3 B. & A. 420; 106 E.R. 716; R. v. Flower (1799) 8 T.R. 324; 101 E.R.
1408; Watson’s Case (1839) 9 Ad. & E. 731; 112 E.R. 1389. [His lordship further discussed whether the Habeas Corpus Act, 1816, was a statute of general application in Ghana and whether the applicants could claim the benefit of section 3 thereof. His lordship then continued:] It thus appears from the cases referred to by Maugham, L.C. in Greene’s case,15(15) (every one of which was after
the 1816 Act) where he said:
“In the case reported as Carus Wilson’s Case 17 Q.B. 984 the court (Lord Denman, C.J., Patterson,
Williams and Wightman, JJ.) decided that on a return to a writ of habeas corpus by the Viscount and Gaoler of Jersey who were detaining the body of the applicant by virtue of a sentence of the Royal Court of Jersey for a contempt, they were not entitled to go into the question whether the law of Jersey authorised the sentence or the detention. They declined to receive affidavits for the purpose of seeing
whether the detention was lawful and (I emphasize these words):— ‘whether the proceeding was under Statutes 31 Car. 2 c.2 or 56 Geo. III c.100, or at Common Law’. Patterson, J. observed that: —
‘If the proceeding was under 56 Geo. III. c.100, the question would be: “what are the affidavits which we can receive? This is a return, made by officers (not by a court; a court never makes a return), that the prisoner is in custody by sentence of the Court.”
That, he said, could not be questioned, and so the court decided.
A like question was considered by the King’s Bench in the well known case of the Sheriff of Middlesex (1840) 11 A & E. 273. There the Sergeant at Arms of the House of Commons had detained
the prisoners on a warrant signed by the Speaker of the House stating the prisoners had been guilty of a contempt and breach of the privileges of the House …. [The judges decided] that the return was a sufficient answer and put an end to the case and that the court could not go into the question of
contempt on affidavit nor discuss the motives which might be alleged for the order. Lord Denman, C.J. makes a somewhat ambiguous statement that s. 3 of 56 Geo. 3, c. 100 was ‘not applicable’. I think he must have meant that in the case of the return setting up the warrant of the Speaker it would not be right to examine further into the validity of the warrant. Littledale, J. puts this very clearly —
He said:
‘If the warrant declares the grounds of adjudication, this Court, in many cases, will examine into their validity; but, if it does not, we cannot go into such an inquiry. Here we must suppose that the House adjudicated with sufficient reason; and they were the proper Judges’ See also Hobhouse Case 3 B. & Ald. 420 and Leonard Watson’s Case (1839) 9 A & E. 731. This case related (inter alia) to a return made by a gaoler as regarded a prisoner who had not been convicted, but on his confession had been placed in custody by executive action”16(16) that there is a class of cases which might be said to include cases or imprisonment or detention by quasi-judicial order outside the sphere of criminal law and by executive order, in respect of which, despite the provisions of section 3 empowering the courts to enquire into and investigate
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the truth of facts in a return to habeas corpus, the courts have established the rule that they will not go behind the return showing or setting up an order of a quasi-judicial or executive competent authority.
It was in conformity with these decisions that the cases of the exercise of authority to detain in connection with both the first and second world wars were decided (See Ex parte Zadig17(17) and Liversidge v. Anderson18(18)). It will be noted that in Greene’s case19(19), the Lord Chancellor, after reviewing the old cases decided after the 1816 Act as above indicated, on the authority and in the light of them, concluded, as follows:—
“In the present case I think the order itself is a sufficient answer and we must presume that the Secretary
of State, acting under a regulation having the force of law, had what he considered reasonable cause for
belief.”20(20) Lord Wright expressed similar views in the same case when he said: —
“The order relied on by the respondent is ex facie good and valid. Its authenticity is not disputed. It is not said that the appellant is not the person intended. The order itself justifies the detention. No affidavit
verifying or explaining it is necessary, any more than it was in the case of the Sheriff of Middlesex (11 A & E. 273). The warrant there was one of commitment by the House of Commons. Lord Denman, C.J.
said: —
‘On the motion for a habeas corpus, there must be an affidavit from the party applying; but the return, if
it discloses a sufficient answer, puts an end to the case: and I think the production of a good warrant is
sufficient answer.’ I think that this applies to the present case. The order made by the Home Secretary in terms of regulation 18B speaks for itself. It is admissible as a public executive document to show a good cause of the detention and needs no extrinsic justification21(21) In my view therefore the authorities demonstrate beyond a shadow of doubt that learned counsel’s contention is not well founded that by virtue of section 3 of the 1816 Act, the court is under an
obligation to investigate or enquire into the truth of the allegations as to the veracity of the charges set out in the grounds against the applicants and whether the charges were such as to justify the arrest and detention of the applicants.
Even on the basis or footing therefore that the 1816 Act is in force locally and applicable to the case, it is clear that on the relevant English authorities, the claim to the investigation which counsel for the applicants makes cannot be sustained.
Lord Greene, M.R. deals with the situation in more impressive language in the case of R. v. Secretary of State for Home Affairs; ex parte Budd when he says as follows: —
“It is now convenient to consider in detail the three main arguments presented to us on behalf of the
applicant . . . .
“The second argument was based on the language of section 3 of the Habeas Corpus Act 1816. In cases
to which that Act applies, it is open to the court, although the return to a writ of habeas corpus may be good and sufficient in law ‘to examine
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into the truth of the facts set forth in such return.’ It was said that there were in the present case sufficient
reasons for the court to exercise its power of inquiring into facts . . . . The facts into which it was said we were at liberty to inquire were those matters in respect of which the Home Secretary says that he had reasonable cause for belief and those in respect of which he states that he was satisfied, but, as we have already pointed out, the court is precluded as a matter of law from inquiring into those matters or into the reasonableness of the belief of the Home Secretary or into the grounds of his satisfaction. These matters are not relevant to the question of the legality of the detention and when the section speaks of an examination into the truth of the facts set forth in the return, it can only be read as referring to facts
which are relevant to the issue before the court, namely, the legality of the detention.”22(22) Authority therefore, it becomes obvious, is conclusive and decisive in refuting learned counsel’s
claim that his clients, the applicants, are entitled under and by virtue of section 3 of the Act of 1816, to have the truth about the charges or grounds for their arrest and detention as well as whether the charges are such as to justify or warrant their detention enquired into and investigated by this court in this habeas corpus proceeding, and counsel’s arguments to that effect can clearly not be sustained.
[His Lordship then proceeded to discuss the position at common law, on the footing that the Habeas Corpus Act, 1816 was not in force locally. He referred to the following authorities R. v. Cowle (1759) 2 Burr. 834; 97 E.R. 587; Ex parte Anderson (1861) 3 El. & El. 487; 121 E.R. 525; Att.-Gen. v.
Stewart (1817) 2 Mer. 144; 35 E.R. 895; Mayor of Lyons v. East India Co. (1836) 1 Moore 175;
Eleko v. Officer Administering the Government of Nigeria [1928] A.C. 459; Zabrovsky v. G.O.C. Palestine [1947] A.C. 246; Ayoub v. Farouqui [1941] A.C. 274 and Ali v. Jarayatne [1951] A.C. 66.
His lordship then continued:] At common law it is clear the claim to the right to have the return in this
case controverted, or the truth of allegations in connection with the applicants’ detention enquired
into, is quite contrary to established practice and therefore untenable.
The position here also is explained in more impressive language by Goddard, L.J. (as he then was) in
Ex parte Budd as follows:
“The right of controverting the return was first given by the Act — by s.3 where the writ was granted by
a single judge and by s.4 where it was granted by the full Court. A perusal of the opinion of Wilmot, J. (afterwards Wilmot, C.J.) delivered in the House of Lords in 1758 when a bill for amending the law relating to habeas corpus was before the House, makes it clear that no dispute on any matter of fact was allowed on a return to the writ and that the only question which could be debated was whether the return disclosed on its face a ground for detention which was sufficient in law. The reason was that in those
days it was only a jury that could try a question of fact. Accordingly, if the applicant for the writ desired to dispute any fact alleged in the return, he could do so only by action, or by preferring an indictment, for a false return. If he obtained a verdict, the court could then take notice that the allegation was false and proceed accordingly. It appears from a note at the end of the report of the learned judge’s opinion that the bill was rejected, and it was by the Act of 1816 that the law in this respect was first
altered.”23(23) On the basis or footing therefore that the 1816 Act is not in force locally, the position at common law is that so clearly described above by
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Lord Goddard, and as already indicated the claim that the court should go behind the orders of
commitments is quite untenable.
Turning now to the two matters relevant for consideration in connection with the exercise of the
powers of detention in this particular instance, namely:
(a) the identity of some of the applicants, having regard to the names appearing in the orders and what they allege in their petition and affidavit to be their proper names; and
(b) the question whether there is any evidence to displace or destroy the presumption of good faith
prima facie subsisting in favour of the Governor-General, with regard to the first matter, five of the applicants have put down in the petition exhibit B that the names by which the detention orders were made against them were not correct, and they purport to
give their correct names. They are: No. 1, who is named in the order “Ebenezer Kofi Dumoga” and
who has written that “Ebenezer” is not his name and his correct name is Emmanuel Obed Kofi Dumoga. Then No. 5, who is named in the order “S. K. Adjei” and who has written that that is not correct, and his correct name is Mathias Kwasi Adjei. Then No. 6, who is named in the order “Bodze
Donkor” and who has written that that is not correct; and his correct name is Christian Yawo Bodza.
Then No. 7, who is named in the order “Kofi Agbelebe” and who has written that that is not correct and his correct name is Silvanus Yao Agbley. Then lastly No. 8, named in the order “Kofi Daniel Dumoga” and who has written that that is not correct and his correct name is Daniel Kwame Kumasi
Dumoga. But it is significant that in the orders their respective places of residence, and in some cases their description by occupation, were given, and there is no suggestion that the descriptions by residence and occupations were wrong. Moreover there is no serious and emphatic assertion on the part of any of the applicants that he has been mistaken for somebody else. Then there is the fact that their petition contained so many admissions indicating that there is no mistake about the identity of a
single one of them. Indeed it is difficult to reconcile those admissions with the suggestion that some of them have been arrested for other persons. At any rate they mentioned the matter casually in the last paragraph of their petition that “they were His Excellency’s Petitioners some of whom have been arrested and detained in other people’s names,” and able counsel had himself produced the official reply (exhibit Z) which would seem to show that the President has not been able to find any substance
in that allegation at any rate. Finally on that question, although in my view there was no need for any affidavit to controvert it, the respondents’ affidavit is in evidence to show that under whatever name each of the applicants was arrested, the identity of each of them is beyond dispute so far as the executive authority is concerned.
Lastly the question of the existence of evidence tending to destroy the presumptive good faith of the
executive officer who exercised the powers conferred by the Act. As to this, as I understand Dr. Danquah,
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the allegations contained in the petition as well as the supporting affidavit as to the conduct of a
Regional Commissioner and certain high-ranking agents of the government who were described as
“political antagonists” and who were alleged to have threatened the applicants with arrest and detention shortly before their actual arrest and detention, are the allegations or matters which are relied on to establish that the Governor-General must have been acting on their advice and they have misled him and therefore his presumptive good faith is destroyed by that circumstance. But surely the answer is that it can be only guess-work to say the Governor-General heard anything from them at all or acted on their advice and was thus misled by them. The sources of information which led the
Governor-General to come to his decision cannot, for reasons of public policy, and in the nature of things, be extracted from him and disclosed to the court.
In Liversidge v. Anderson24(24) Maugham, L.C. brings this out forcefully when he states as follows:
“Thirdly, and this is of even greater importance, it is obvious that in many cases he will be acting on information of the most confidential character, which could not be communicated to the person detained or disclosed in court . . . , It is beyond dispute that he can decline to disclose the information on which he has acted on the ground that to do so would be contrary to the public interest, and that this privilege of the Crown cannot be disputed.”25(25)
In those circumstances it seems to me to follow that it is virtually impossible to establish bad faith in an executive officer, except possibly in the very exceptional and unusual event of the known and acknowledged subsistence of some personal animosity between the officer and a detainee. In the
words of Lord Radcliffe in the Privy Council case of Nakkuda Ali v. Jayaratne26(26) dealing with the
exercise of this type of expressly conferred authority or power:
“No doubt he [the Executive Officer] must not exercise the power in bad faith; but the field in which this kind of question arises is such that the reservation for the case of bad faith is hardly more than a formality.”27(27)
Even so, I think the suggestion of bad faith in this case is “hardly more than a formality”, and that even accepting all the allegations in the applicants’ affidavit and their petition, they come nowhere near establishing bad faith on the part of the Governor-General. There were several other subsidiary
points put forward, e.g. that if the acts alleged against the applicants are true then they are criminal offences and the authorities were mandatorily enjoined by section 3 of Cap. 1028(28) to prosecute the applicants and not detain them without trial as they are being detained; that they are being deprived of rights conferred on them by Magna Charta29(29) and the Universal Declaration of Human Rights, etc.
It is unnecessary to deal with these other questions as they are in the main irrelevant to the primary issue whether the court can go behind the orders of commitment which are ex facie regular and valid and show sufficient cause for the commitment of the applicants.
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In a wide and extensive search for some authoritative and at the same time philosophical pronouncement concerning this undoubtedly difficult matter of the enforcement of the powers conferred by the Preventive Detention Act, 1958, I have been able to come across the pronouncement
of Lord Wright in a similar case connected with the detention of a Palestinian subject at the time when
Palestine was a mandate to Britain, the case of Zabrovsky v. Gen. Officer Commanding Palestine30(30) and would respectfully borrow it. Lord Wright said as follows:
“Habeas corpus is perhaps the most characteristic writ known to the English common law. As Lord
Birkenhead said of that writ in Secretary of State for Home Affairs vs: O’Brien ([1923] A.C. 603 at 609):
‘It is perhaps the most important writ known to the constitutional law of England, affording as it does a swift and imperative remedy in all cases of illegal restraint or confinement….. It has through the ages been jealously maintained by courts of law as a check upon illegal usurpation of power by the Executive at the cost of the liege’.
It is accordingly clear that the common law rules which have been evolved on this topic by the English courts will be applicable in the court in Palestine and that these rules will govern the decision.
But the detention must be illegal, as Lord Birkenhead emphasizes by repeating the word. That lies at the root of the whole matter. It is for ‘illegal restraint or confinement’ that the ‘swift and imperative remedy’ may be invoked. It is not enough to show that there has been interference with the liberty of the subject: it is essential that it should be shown to be illegal, as it manifestly was in O’Brien’s case.
In the troublous times of war and in the chaotic post-war conditions the scope of legal and permissive
interference with personal liberty has been extended and restraints have been legalized by the legislature which would not have been accepted as legitimate in normal times. Thus in England, in what are called the Reg. 18B cases (Liversidge v. Anderson and Greene v. Secretary of State for
Home Affairs [1942] A.C. 206 and 284) the House of Lords upheld the legality of a detention of thebapplicants by the Executive without trial and also held that the Executive could not be compelled to give its reasons for the detention. The Executive was, in these respects, exercising an emergency
power vested in it by the legislature. There was a restraint outside the ordinary course of the common
law, but it was not illegal because it was justified by the terms of the Statutory Regulation which gave
the power and imposed the duty for securing the defence of the realm during the world war which has
recently ended. A somewhat similar rule of law applied during the war of 1914—1918. (See Rex v. Halliday [1917] A.C 260). “In these and many similar cases the restraint or confinement was held not to be illegal, and the effect of
the decisions is to vest a plenary discretion in the Executive, affecting the liberty of the subject and pro
tanto to substitute for the judgment of the court based on ordinary principles of common law right, the discretion of the Executive acting arbitrarily in the sense that it cannot in substance be inquired into by the court. This is a serious interference with the liberty of the subject, but it is not illegal so long as the detention conforms to the requirements of the statute or order on which it is based.”
We are not at war, it is true; but a fully sovereign parliament composed of representatives of the people duly elected by universal adult suffrage, of which learned counsel for the applicants in his political activities was one of the staunchest sponsors, has after due deliberation decided that
conditions exist as to make it necessary for this rather drastic power to be conferred on the chief executive officer of the state to be by him exercised in his discretion, and has accordingly made provision for it.
[p.56] of [1961] GLR 44
In these circumstances there can surely be little or no point in resorting to the court; and surely the course open to men of realistic outlook is to adopt and pursue a policy of constant approach and appeal to influential humanitarian parliamentarians to use their influence and good offices to procure possibly a reduction in the period of detention in some cases, or perhaps reconsideration from time to
time of the question of the termination of the operation of the enabling Act. But these are observations outside the scope of the merits of this application.
As far as the merits of the application are concerned, for the reasons I have explained above in some detail the application for the issue of the writs of habeas corpus in respect of the applicants cannot be sustained and is accordingly hereby dismissed.
DECISION
Application dismissed.
