Hasan Ali Vs Union of Burma Criminal Miscellaneous Applications No. 155 and 156 of 1959 of the Supreme Court

Mr. Aman (Education)

In Criminal Miscellaneous Applications No. 155 and 156 of 1959 of the Supreme Court, Hasan Ali and Meher Ali applied for directions in the nature of a writ of Habeas Corpus. According to the affidavits filed, some two hundred persons of Pakistani origin were rounded up in raids in the Akyab district and detained.

The learned Attorney-General, who appeared for the respondents, requested the Court for inspection of the proceedings of the Immigration Officer Akyab in respect of the applicant Hasan Ali. According to the diary entries Hasan Ali was arrested on the 15th June 1959.'On the 22nd June the Deputy Commissioner, Akyab was approached for orders to deport him. Judging by the entry under date 26th June, the Deputy Commissioner demurred. The Ministry of Immigration then stepped in, and under the orders of the Ministry, Hasan Ali and others were sent to Rangoon by steamer for ultimate dispatch to Gawduthoung in Pyapon District. On arrival at Rangoon they were lodged in the Rangoon Central Jail under a detention order by an Immigration Officer, presumably of Rangoon. The relevant portion of the detention order filed in the Court by the Superintendent of the Rangoon Central Jail read as follows :-

‘Whereas Hasan Ali, son of Abbas Ali has been subject to an order of deportation under sec. 7 (2) of the Burma Immigration (Emergency Provisions) Act by the Controller of Immigration Burma;

And whereas it is expedient to detain the said Hasan Ali into your custody pending removal out of Burma, this is to authorised you to receive into your custody and produce him before the 17th August 1959,’

It was held that in the first place the Controller of Immigration was not an authority appointed by the President to exercise the powers of deportation under section 7 (2) of the Act and secondly that the applicants were not yet subjected to orders of deportation under section 7 (2) as recited in the order. On these considerations alone the detention orders were liable to be quashed.

The Supreme Court further held as follows:—

 "However, the question involved goes much deeper. Section 7, under which detention is authorised has so often been amended piecemeal that the position is confusing and it is necessary to determine, at what stage and in what circumstances and at whose behest, a foreigner can be detained under the immigration laws.

Section 7 as it stands today reads:—

7. (1) The President of the Union or any such authority as may be appointed by him under this sub-section, may order any foreigner who has been convicted under any section of this Act or the rules made there-under to be deported from the Union of Burma and pending orders of deportation he may be detained in such manner as the President of the Union may direct and whilst so detained shall be deemed to be in legal custody.

  (2) The President of the Union or any such authority as may be appointed by him under this sub-section, may in lieu of prosecution, order any foreigner who contravenes any of the provisions of this Act or the rules framed there-under, to be deported from the Union of Burma and pending orders of deportation such foreigner may be detained in such manner as the President of the Union may direct and whilst so detained shall be deemed to be in legal custody.

  (3) The President of the Union or the authority competent to order deportation under sub-section (2) shall have power to adjudge if any foreigner has in fact contravened any of the provisions of the Act or the rules made there-under.

   (4) Any foreigner ordered to be deported under sub-section (1) or sub-section (2) may be detained by such authority and in such manner as the President of the Union may direct pending the completion of arrangement for his removal out of the Union of Burma and whilst so detained shall be deemed to be in legal custody.

    (5) Any foreigner who has been detained under sub-section (1) or sub-section (2) or sub-section (4) may be admitted to bail by such authority and upon such terms as may be prescribed by the President of the Union.

     (6) The carrier who is responsible for the illegal entry or any foreigner against whom any order of deportation is subsequently issued under sub-section (1) or sub-section (2) shall remove such foreigner from the Union of Burma.

Under sub-section (1) a foreigner who has been convicted under the Immigration laws may be ordered deportation by the President or by some one appointed by him to order such deportation and pending such orders of deportation, the man may be detained in such manner as the President may direct. The purpose of this provision is clear. A magistrate may convict a foreigner but the order for his deportation must emanate from some other authority, and some time may elapse before the actual order of deportation is issued, and therefore it may be necessary to detain the foreigner to ensure that he does not disappear.

Sub-section (2) provides an abnormal procedure, under which a foreigner is not prosecuted but is sent before a competent authority who has to decide if the foreigner had in fact contravened the provisions of the Act or the Rules. If the ad-judgment, the exercise of which is vested in the competent authority under sub-section (3) is in the affirmative, in lieu of a prosecution the foreigner’s deportation can be ordered. Pending orders of deportation such foreigner may be detained in such manner as the President may direct.

Sub-section (4) deals only with those against whom orders of deportation have already been passed. They may be detained by such authority and in such manner as the President may direct. The purpose of his sub-section is also clear, because some time must elapse for arrangement to be made for the actual removal of the foreigner, such as securing his passage or obtaining the consent of the country to which he is to be sent..

It was urged by the learned Counsel for the applicants that under sub-section (1), it is only after a conviction that a foreigner can be detained and that only it is after an adjudgment that he can be similarly detained under sub-section (2). The position, the learned Counsel submits, is made clearer by the Burma Immigration (Detention) Rules, 1951, under which detention is contemplated only in respect of those liable to be deported (see rule 2). A foreigner, it was submitted, may be liable to a prosecution, but mere prosecution does not render him liable to deportation. It is only when he is convicted or is adjudged under sub-section (2) of having contravened the immigration laws that he becomes liable to deportation. A foreigner may be arrested on suspicion under section 10 and his subsequent detention if he is detained at all, will be under the Criminal Procedure Code and not under the immigration laws. The suggestion therefore is, a detention under sub-section (2) before ad judgment is not authorised by law.

We have given very careful consideration to this suggestion but we find ourselves unable to accept it. The phraseology of sub-section (2) is by no means clear but the fact remains that under this sub-section, proceedings are initiated solely with a view to secure orders of deportation. The competent authority who deals with the case can award no punishment but in lieu of a prosecution, he may order deportation, provided of course, the adjudgment is that the foreigner in fact had contravened either the Act or the Rules. In actual practice the adjudgment would have to be incorporated in the order of deportation itself and there will therefore be time interval between the adjudgment and the orders of deportation. Thus the phrase ' pending orders of deportation' appearing in sub-section (2) must be construed to mean that during the pendency of the proceedings before the competent authority, a foreigner may be detained.

We must now examine the Burma Immigration ( Detention) Rules 1951. When they were originally passed, Rule 2 read:—

   12. (1) Any foreigner who is liable to be deported under section 7 (1) of the Burma Immigration (Emergency Provisions) Act 1947 may be detained in police station, police lock up, police outpost, sub-jail, jail or jail annexe by an order in writing of any Deputy Commissioner or of any Resident or of any Immigration official not below the rank of Inspector of Immigration, pending the receipt of orders of the President or of such authority as may be appointed by him in that behalf for the deportation of the foreigner, or for the removal of such foreigner out of the Union of Burma in compliance with the order of deportation.

           (2) Such order of detention of such foreigner under section 7 of the said Act may be issued from time to time for any period not exceeding fifteen days at a time.’

These rules are purported to have been made under section 16(2) (g) of the Act.

When sub-section (2) was added to section 7 by Act XXXIX of 1957, by Notification No. 6 of the Immigration Branch, Ministry of Immigration and National Registration, dated the 5th February 1958, the words ‘ sub-section (1) or (2) of section 7 ’ and ' Assistant Immigration Officer' were substituted for the words ' section 7 (1)' and 'Inspector of Immigration ’ respectively.

It will be noticed that the detention, both under sub-section (1) and (2) of section 7 is to be ’ in such manner as the President of the Union may direct,1 while under sub-section (4) the detention is to be ‘ by such authority and in such manner as the President of the Union may direct’. The difference in meaning is, in sub-section (1) and (2). The President alone is empowered to order detention, while in sub-section (4) he may name an authority to exercise the power. However, the restriction of authority to the President alone in sub-section (1) is qualified by sub-section (4) under which the President may name the authority under whose orders, a person against whom deportation order have been passed, may be detained. But the restriction under sub-section (2) remains unaffected by sub-section (4), and thus there is no provision under which the President may name any authority to order detention during the pendency of the proceedings, that is to say, before orders of deportation are passed under sub-section (2).

Whatever the wording of rule 2 may be, its scope is limited to detention under sub-section (4) only, and other provision contained in the rule, which is outside the scope of sub-section (4) is ultra vires of the Act. Thus, the detention of the applicants under section 7 (2) pending the proceedings before a competent authority under the orders of an officer mentioned in rule 2 is not authorised by law.

The applicants presumably were arrested under section 10. The normal procedure after such arrest is to prosecute them under section 13 (1) and in that extent, in view of section 13A and 13B, the onus of proving that they are legitimate residents or that they are not foreigners, is on them. And since this onus is placed upon them as a special rule of evidence, a reasonable opportunity must be given to them to discharge the burden. Their detention in Rangoon, when their normal residence is Akyab, might be tantamount to a denial of such an opportunity. The opportunity must be afforded whether the proceedings against them are by way of a prosecution under section 13 (1) or by way of judgmental under section 7(2).

On the question of ad-judgment we desire to observe that this procedure is meant to be confined to cases where there is no room for controversy and where a prosecution would be a waste of time and labour, such as when a foreigner has remained on in Burma under an expired stay permit, or where a stowaway is caught in Burma waters. But where the question of a man's nationality is involved, and where, as in Hasan Ali's case, he is ven in possession of a National Registration Certificate recourse to section 7 (2) and (3) would be undesirable.

We note that the 1st respondent in his return, has stated that the applicants are Pakistanis in appearance; that they have no knowledge of the Burmese or the Arakanese languages; and that they are unable to answer questions relating to events which had occurred in Arakan during the past decade. From these, he stated, the immigration authorities were satisfied that the applicants are illegal immigrants of recent origin. It must be born in mind that it is the President or the competent authority that must be satisfied. Further, in applying the tests which the 1st respondent

has mentioned, section 4 (2) of the Union Citizenship Act must not be lost sight of. A person descended from ancestors who for two generations have made Burma their permanent home,’- and whose parents and himself were born in Burma, is a statutory citizen. Today in various parts of Burma there are people who, because of their origin and isolated way of life, are totally unlike the Burmese in appearance or speak of events which had occurred outside the limits of their habitation. They are nevertheless statutory citizens under the Union Citizenship Act. The applicants claim that they belong to that category. They might be right and therefore the opportunity of proving that they are, should be given to them. To deny them this opportunity would be a violation of their fundamental rights."

The detention of Hasan Ali, and Meher Ali, under section 7 (2) of the Burma Immigration (Emergency Provisions) Act under the orders of an Immigration Officer were held to be unwarranted in law and therefore the orders under which they were detained in the Rangoon Central Jail were quashed and they were ordered to be released forthwith.

After sometime on 26th October 1960 the Supreme Court again quashed the orders of deportation passed by the Sub-divisional Officer, Maungdaw, Akyab district, against 23 Arakanese Muslims who were among those rounded up by1 the Immigration authorities in 1959 in their drive against illegal immigrants. They had applied to the Court for writs of habeas corpus.

Their Lordships observed that on November 4, 1959, the Supreme Court had passed orders directing the release of Hasan Ali and Meher Ali who were arrested about the same time and on the same grounds. It was pointed out then that as the detenus had claimed Burmese citizenship, the deportation orders passed without having given them opportunity to prove their claims, were illegal.

Their Lordships added it was thought that the two cases would have served as test cases to the Immigration Department and the deportation orders against other detenus would have been cancelled. This was not done and the Court had to order the release of 76 more detenus who had subsequently applied for writs of habeas corpus. Still, it was added, the Immigration Department had not taken the guidance given by the Court and had continued to hold the present applicants in detention.

It was pointed out that when the applicants were examined by an Immigration Officer after they had been rounded up, they claimed Burmese citizenship as they were born and bred in Burma and their ancestors had settled down and made Burma their home. Nevertheless the Immigration Officer had filled in printed forms of deportation and the Sub-divisional Officer, Maungdaw, had put his signature to them without giving the applicants opportunity to substantiate their claims that they were not foreigners. This it was pointed out was to deny them* their rights. Their Lordships reminded the Immigration officers that they had been invested with very wide powers and that they should therefore be extremely careful in their use. The Immigration Act only provided for the expulsion of foreigners and to order the expulsion of a Burmese citizen was a very serious matter and was like sentencing him to the death penalty. It was therefore very improper for the Sub-divisional Officer, Maungdaw, to have disposed of the cases in the slipshod manner he adopted by simply signing the deportation forms put up to him by the Immigration Officer.

It was observed that the Immigration authorities had claimed in their returns that the applicants did not know the Burmese language and that they could not show that they were not illegal entrants. The same defense had been put forward in the previous cases it was pointed out and it had been observed by the Court that in the Union of Burma there were races who could not speak the Burmese language and whose customs were different from the Burmese but who nevertheless were citizens of the Union under the provisions of the Constitution. Under section 4 (2) of the Union Citizenship Act also, it was pointed out, those persons whose ancestors had made Burma their home and who and whose parents were all born in Burma were also citizens of the Union.

The detention of the applicants on suspicion that they were foreigners and without giving them an opportunity to establish their claim to Union citizenship being held illegal, their Lordships directed their immediate release.