[PRIVY COUNCIL]

AND

ON APPEAL FROM THE SUPREME COURT OF PALESTINE AT JERUSALEM.

Palestine - Emergency legislation - Order of deportation - Direction for detention in Eritrea - Legality - Habeas corpus - Emergency Regulations, 1936, regs. 15, 15B - Defence Regulations, 1939, reg. 17G - Palestine Order in Council, 1922, s. 46.

The appellant's son, a Palestinian citizen, was arrested in Palestine pursuant to an order made under reg. 15B of the Emergency Regulations, 1936, and was subsequently removed to Eritrea under custody of the respondents - the General Officer Commanding Palestine, representing the Commander-in-Chief, Middle East, and the Inspector-General of Police and Prisons,

Jerusalem - by virtue of an order of deportation made under reg. 15 of the Emergency Regulations, 1936, and a direction made under reg. 17G of the Defence Regulations, 1939. He was detained under military custody in Eritrea, which was at all material times held by the British under military government under the control of a Chief Administrator, and was not subordinate to the Palestine Government. The deportee was detained in Eritrea under an order of the Eritrean military government made under the provisions of a Proclamation by the Chief Administrator which provided that "where any person has .... by order of a competent authority been transferred to the occupied territory, the Chief Administrator may order his detention after arrival in the occupied territory." A petition by the appellant to the Supreme Court of Palestine, sitting as a High Court, for an order in the nature of habeas corpus to be directed to the respondents on the ground that his son was being unlawfully detained by one or both of them as they had no power to detain and keep him in custody abroad, having been dismissed:-

Held, that by virtue of s. 46 of the Palestine Order in Council, 1922, English common law rules evolved in respect of habeas corpus were applicable in Palestine, and that the detention must be illegal lay at the root of the whole matter. The order of deportation and the ancillary powers of providing a place to which the deportee might proceed were legal as being within the competence of the Palestine Government under the relevant statutory emergency and defence provisions. No court in Palestine had authority to require production of the deportee in that country in defiance of an order lawfully made by its responsible Government, and the Palestine court had no jurisdiction to inquire into the legality of the order made by the responsible governing authority in Eritrea under which the deportee was detained in that country, and no ground for questioning that order.

Secretary of State for Home Affairs v. O'Brien [1923] A. C. 603, distinguished.

Order of the Supreme Court of Palestine (1945) 12 P. L. R. 556, affirmed.

APPEAL (No. 43 of 1946), by special leave, from an order of the Supreme Court of Palestine sitting as a High Court (December 18, 1945) which discharged a rule nisi granted on the appellant's petition for an order in the nature of habeas corpus in respect of Arie Ben Eliezer, the appellant's son.

The following facts are taken from the judgment of the Judicial Committee. The appellant's son was a Palestinian citizen, and had arrived in Palestine at some date before April 17 1944, from the United States of America. On that date he was arrested by the police authorities in Palestine acting by virtue of an order made under reg. 15B of the Emergency Regulations, 1936, and on or about October 19, 1944, was removed from

Palestine to Eritrea under custody of the respondents and personnel under their command acting by virtue of an order of deportation made under reg. 15 of the Emergency Regulations, 1936, and of a direction made under reg. 17G of the Defence Regulations, 1939. From and after his arrival in Eritrea he was detained under an order of the Eritrean Military Government in a detention camp in that country, but was later transferred for a period of time to a detention camp in the Sudan, from which he was eventually brought back to the detention camp in Eritrea where at the inception of these proceedings he was, and he still was, detained.

On October 26, 1945, the appellant filed in the Supreme Court of Palestine, sitting as a High Court of Justice, Jerusalem, a petition dated September 4, 1945, praying for an order in the nature of habeas corpus to be directed to the respondents in respect of his son, and on November 6, 1945, that court made an order nisi directing the issue of a summons in the nature of habeas corpus to the respondents as prayed by the appellant and ordering the respondents to file their reply, if so advised, within fifteen days from the date of service of the order.

In those circumstances, affidavits in opposition to the granting of the petition were filed, and after hearing the arguments and discussing the evidence, the Supreme Court, sitting as a High Court (FitzGerald C.J. and Shaw J.), discharged the rule and dismissed the petition.

1946. Dec. 2, 3, 4. Devlin K.C., I. H. Jacob and M. Seligmanfor the appellant. The orders did not give power to the Palestine authorities to detain any person outside Palestine. The person who controlled the military camps in Eritrea was the Commander-in-Chief, Middle East, who is the real respondent to this appeal. The Supreme Court were satisfied that the alleged order of October 4, 1945, by the Chief Administrator of Eritrea was made at the instigation, persuasion or representation of the Palestine authorities, and the court also accepted the principle of de facto control that has been applied in these cases, that is to say, that notwithstanding that a person may be detained by someone other than the respondent either nominally or legally in some other English colony, if the court is satisfied that the respondent has de facto control over him the writ will issue. The court considered, however, that that principle did not apply in a case where some competent authority in the country of detention had made an order which

was legally binding. It was on that ground that they refused the application, and accordingly the main question is whether the principle of de facto control is applicable to this case. It is submitted that it is. De facto means the position in fact and not in law, and the question is, who detains in fact, and if it be found that the respondent is detaining the writ will issue. The only inference is that there was de facto control by the respondent, and it is contended that, apart from the Eritrean order, the Supreme Court was satisfied in this case that if the Palestine authorities had requested that the detention should be brought to an end it would have been - that there was de facto control. The English common law principles with regard to habeas corpus have been imported into the law of Palestine by s. 46 of the Palestine Order in Council, 1922: Michel Habib Raji Ayoub v. Sheikh Suleiman El Taji El Farouqi (1). If once it is established that a man has had the custody of a person, and that after proceedings had been threatened he transfers that person to somebody else, by those facts alone there is practically set up a case which requires inquiry and a writ will issue and the facts be gone into. Two things in Barnardo v. Ford (2) make it a stronger case than the present (a) there was an explicit denial of knowledge of where the child was, and (b) the custody of the child had been parted with some time before there was any question of habeas corpus. Here a step was taken after the threat of proceedings, which suggests that the Palestine authorities were anxious to pass the nominal control into other hands. Rex v. Crewe (Earl), Ex parte Sekgome (3), deals to some extent with the question of control as it affects a person in the position of the Colonial Secretary in this case, and secondly, it is authority with regard to the writ at common law running to any territory which is in the subjection of the King. Rex v. Secretary of State for Home Affairs, Ex parte O'Brien (4), is more nearly in point. With regard to what amounts to control, the authorities show two things: (a) that there need not be actual custody, and (b) that the control need not be legal control, that is to say, the person need not be in the hands of an agent who is legally obliged to obey orders given to him by the respondent; it goes further than that. The courts have been careful not to define exactly what

(1) [1941] A. C. 274.

(2) [1892] A. C. 326.

(3) [1910] 2 K. B. 576, 592, 618, 629.

(4) [1923] 2 K. B. 361, 391 et seq.

is the degree of control that is applied, but they have used the term' de facto control, and it is submitted that that means that control is to be left, so to speak, as a jury question. It is for the court, applying its mind to a question of fact, to say whether there is control in the ordinary sense of the word, looking at the realities of the situation. The respondent has to show whether he has parted with the control absolutely or only conditionally, and if conditionally, the writ would issue. Apart from the legal effect of the Eritrean order, there is here a prima facie case of control against the respondent. The court should not require too high a degree of proof, otherwise it might paralyse the whole procedure of habeas corpus: Cox v. Hakes (1). The fact of the issue of the Eritrean order shows some degree of communication with the Palestine authorities, and leads to the inference that that order was made at the instigation of, or procured by, the Palestine authorities, and is some evidence of whether there is a prima facie case of control against them. The court below was satisfied that there was de facto control, but they misdirected themselves, it is submitted, as a matter of law because, having reached the right conclusion of fact, they said that they could not give effect to it because of the Eritrean order.

If the Board is of opinion that there was prima facie control, the Eritrean order has to be considered from a number of angles, the first being whether it really makes any difference at all. It is not a legislative Act. The true view is that the order does not alter the quality of the detention and leaves the position as it was on October 3, 1945. Next, the right view is that the court ought to inquire into the validity of the order, but that it has not at present the materials before it to do so, and consequently the respondents' case is to that extent defective and on the return they must make it good. Assuming, however, that the Eritrean order is a valid document, and that there is no need for any further inquiry, if the Board has accepted my submission as to the true meaning of control it cannot make any difference, if there is in reality control over a person, whether it is held by virtue of some legal instrument or otherwise - it is the de facto position which has to be considered; there is no authority on this point. [Reference was made to Halsbury's Laws of England, 2nd ed., vol. 9, p. 734, para. 1252.] Next, the validity of the deportation order stands or falls according to the validity of the detention in Eritrea. If this

(1) (1890) 15 App. Cas. 506, 514.

order was made not as an end in itself, simply to deport a person, but merely as a step in the consummation of an act of illegal detention in Eritrea, the order itself would be bad. Lastly the order should have been produced: Rex v. Clerk (1), In re Power and Jackson (2); In re Clarke (3); and Rex v. Secretary of State for Home Affairs. Ex parte Greene (4).

Le Quesne K.C. and Gahan for the respondents. In both Barnardo v. Ford (5) and Secretary of State for Home Affairs v. O'Brien (6) it is plain that the courts attached the greatest importance to the fact that someone was being detained illegally. Prima facie, a case of illegality must be shown - that underlies the whole of the law on this matter and is the whole basis of the intervention of the court: In re Newton (7); Barnardo v. Ford (8) and Greene v. Secretary of State for Home Affairs (9). The appellant here has failed to establish any illegality as regards the detention in Eritrea; he has to prove two things to the satisfaction of the court (a) illegality, and (b) de facto control on the part of the person to whom he desires that the writ should be directed. The Commander-in-Chief, Middle East, was not within the jurisdiction of the Palestine court and proceedings could not properly be taken against him by making his subordinate in Palestine a party to the proceedings as representing him. There is no evidence that the first respondent, the General Officer Commanding Palestine, had authority to accept service or legal documents intended for the Commander-in-Chief, Middle East. As regards the second respondent, the Inspector-General of Police and Prisons, it is very difficult for it to be deemed that he is exercising any kind of control over the detention of these persons in Eritrea. The appellant says that this is really an application against the Government of Palestine which, it is said, is really in control of this detention in Eritrea. If, in fact, that was the application which it was desired to make, it ought to have been made against the High Commissioner. It cannot be treated as an application against the Government of Palestine, but supposing it is looked at in that way, the next step would have to be to show that there was an illegality.

(1) (1696) 1 Salk. 348.

(2) (1826) 2 Russell 583.

(3) (1842) 2 Q. B. 619.

(4) [1942] 1 K. B. 87, 107, 118; [1942] A. C. 284.

(5) [1892] A. C. 326.

(6) [1923] A. C. 603.

(7) (1849) 13 Q. B. 716, 730.

(8) [1892] A. C. 326, 339.

(9) [1942] A. C. 284, 302.

The alleged illegality would be detention in Eritrea - detention in a country at present occupied by our military forces. He would not establish an illegal detention by saying that he was being detained by the military forces, because that is a matter well within the power of the Officer Comanding those forces. The deportee was at the relevant time detained in Eritrea by virtue of a lawful order of the Chief Administrator of Eritrea, and the court in Palestine had no jurisdiction to inquire into the legality of that order. At the relevant time the deportee was not in the custody of the respondents or either of them. Even assuming it to be true that, on the request of the proper official in Palestine, the Eritrean authorities would be prepared to allow the release of this deportee, the fact would still remain that the detention in question could not be called illegal: it is quite possible for these two things to exist side by side, and that is a very far state of affairs from O'Brien's case(1). Assuming that these proceedings are treated as against the Palestine authorities, they would fail because there is no illegal detention, but quite apart from that, even if the court should come to the conclusion that there was illegal detention, and that the Palestine authorities had control, that would be no reason for directing the issue of a writ against the Commander-in-Chief, Middle East, and the Inspector-General; they are not the proper persons at all if the writ is to be against someone described as the Palestine authorities.

Devlin K.C. replied. Somebody in Palestine must exercise effective control as in O'Brien's case(1). The High Commissioner cannot be sued in the courts in Palestine - he is in the same position as the Crown, and he acts through his officials. The point was not taken below. On the evidence the Board ought to be satisfied that the proper official is the Inspector-General: Rex v. Vine Street Police Station Superintendent, Ex parte Liebmann (2); Rex v. Knockaloe Camp Commandant, Ex parte Forman (3).

1946. Dec. 4. LORD WRIGHT announced that their Lordships would humbly advise His Majesty that the appeal should be dismissed, and that they would give their reasons later.

1947. Feb. 25. The reasons for their Lordships' report were

(1) [1923] A. C. 603.

(2) [1916] 1 K. B. 268.

(3) (1918) 87 L. J. (K. B.) 43.

delivered by LORD WRIGHT. In this appeal their Lordships, after hearing arguments from counsel on both sides, announced that they had decided to advise His Majesty that in their judgment the appeal should be dismissed, and added that they would give their reasons later. This they now proceed to do. [His Lordship then stated the facts set out above, and continued:] Before referring to the documents and orders in the case it may be useful to indicate shortly what is the constitutional or international position of Palestine. That topic was discussed by this Board in Jerusalem-Jaffa District Governor v. Suleiman Murra (1), when the question at issue was whether an Ordinance issued by the High Commissioner for the expropriation for public services of certain property was ultra vires as not providing for adequate compensation. The Board held that the Ordinance was not ultra vires. Lord Cave, delivering the judgment of the Board, referred to the Mandate for Palestine, dated July 24, 1922, whereby the Council of the League of Nations, acting under art. 22 of the Covenant of the League entrusted to Great Britain the territory of Palestine. That Mandate is still treated as de facto operative quoad the duties it imposes, though the League of Nations may no longer function. It imposes (inter alia) the responsibility on the Mandatory of "safeguarding the civil and religious rights of all the inhabitants of Palestine, irrespective of race and religion." Lord Cave stated the general position thus(2): "By the Palestine Order in Council dated August 10, 1922, provision was made for the administration of Palestine by a High Commissioner with full executive powers; and authority to make Ordinances for the peace, order and good government of Palestine was entrusted to a Legislative Council, subject to a provision that no Ordinance should be passed which should in any way be repugnant to or inconsistent with the provisions of the Mandate. The institution of a Legislative Council did not prove successful; and on May 4, 1923, an amending Order in Council was made by which the legislative authority was transferred to the High Commissioner, who was there by authorized to promulgate such Ordinances as might be necessary for the peace, order and good government of Palestine, subject to a condition that no Ordinance should be promulgated which should be in any way repugnant to or inconsistent with the Mandate."

As to what law is administered in Palestine, light may be

(1) [1926] A. C. 321.

(2) Ibid. 325.

derived from the judgment of this Board in Michel Habib Raji Ayoub v. Sheikh Suleiman El Taji El Farouqi (1), where the dispute had reference to the construction of a contract. Lord Atkin quoted in full s. 46 of the Palestine Order in Council of 1922 as follows(2): "The jurisdiction of the civil courts shall be exercised in conformity with the Ottoman law in force in Palestine on November 1, 1914, and such later Ottoman laws as have been or may be declared to be in force by public notice, and such Orders in Council, ordinances and regulations as are in force in Palestine at the date of the commencement of this order, or may hereafter be applied or enacted; and subject thereto, and so far as the same shall not extend or apply, shall be exercised in conformity with the substance of the common law, and the doctrines of equity in force in England, and with the powers vested in and according to the procedure and practice observed by or before Courts of Justice and Justices of the Peace in England, according to their respective jurisdictions and authorities at that date, save in so far as the said powers, procedure and practice may have been or may hereafter be modified, amended or replaced by any other provisions. Provided always that the said common law and doctrines of equity shall be in force in Palestine so far only as the circumstances of Palestine and its inhabitants and the limits of His Majesty's jurisdiction permit and subject to such qualifications as local circumstances render necessary." Lord Atkin was dealing with a dispute whether the common law doctrine of the difference between penalty and liquidated damages could be applied to the words of a Palestine contract; it was claimed that the bond must be enforced in full and could not be treated as being a penalty according to the common law distinction. Lord Atkin went on to say(3): "The code speaks in a legal system which does not know penalties as such - in which an agreement to pay damages must, therefore, be strictly enforced 'no more and no less.' But when the difference between penalty and liquidated damages is introduced into the legal concepts which now, owing to s. 46 of the Order in Council, form the jurisprudence of Palestine, the terms of art. III can be given a plain and just meaning."

These general principles must be kept in mind when the effect of the Ordinance and order out of which the case arises is being

(1) [1941] A. C. 274.

(2) Ibid. 280.

(3) Ibid. 281.

considered. 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 v. O'Brien (1): "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 is of immemorial antiquity, an instance of its use occurring in the thirty-third year of Edward I. It has through the ages been jealously maintained by courts of law as a check upon the 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 the O'Brien case(1). 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. Sir John Anderson (2) and Greene v. Secretary of State for Home Affairs (3), the House of Lords upheld the legality of a detention of the applicants 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 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 the purpose of 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 (4).

In these and many similar cases the restraint or confinement was held not to be illegal, and the effect of the decisions is to

(1) [1923] A. C. 603, 609.

(2) [1942] A. C. 206.

(3) [1942] A. C. 284.

(4) [1917] A. C. 260.

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. It has sometimes been said that the remedy of habeas corpus is suspended during these temporary and emergency laws. But that is not so. There is no occasion in such cases for its suspension because, as was pointed out in the House of Lords in Greene's case(1) there is no illegality. The British nations have borne these temporary encroachments on their common law freedom because they were necessary for the safety of the country and were required by the paramount need of preserving its peace and good government.

But these considerations do not dispose of the case; the Mandate requires the Government of Palestine to make Ordinances for that purpose and therefore the order of deportation was legal as being within the powers so given. Nevertheless it is said that detention in Eritrea is outside the competence of the Executive in control of Palestine and that that Executive is in fact detaining the petitioner's son and can if they wish bring about his release even though the Eritrean authorities are the nominal jailors and though they assert that the detention in Eritrea is not illegal according to the law of that country.

The order of arrest, as already stated, purported to be made under the Palestine (Defence) Order in Council, 1937, and the Emergency Regulations, 1936. It was dated October 18, 1944, and is headed "Order of Deportation." It is signed by the officer administrating the Government of Palestine and recites that reg. 15 of the Emergency Regulations, 1936, empowers the High Commissioner of Palestine to make a deportation order requiring any person to leave and remain out of Palestine and that it is necessary and expedient that a deportation order should be made in respect (inter alios) of Eliezer. It then proceeds to require him to leave and thereafter remain out of Palestine, and orders him to be kept in the custody of the Commander-in-Chief, Middle East, and the Inspector-General of Police and Prisons, Palestine, and personnel under their command while awaiting deportation and while being conveyed

(1) [1942] A. C. 308.

out of Palestine. On the same day the same officer issued a direction under reg. 17G of the Defence Regulations of Palestine, 1939, which provides that where under any Ordinance or other law for the time being in force in Palestine any person has been lawfully ordered to be deported from Palestine the High Commissioner may make arrangements with the appropriate authorities of any territory outside Palestine for the reception of the persons ordered to be deported. After reciting the order of deportation just referred to this direction stated that arrangements had been made with the appropriate authorities in the territory of Eritrea, and that the officer administering the Government of Palestine was of opinion that it was necessary in the interests of public safety and the defence of Palestine that the person in question ordered to be deported should be kept in custody while being conveyed from Palestine to Eritrea.

These directions were duly carried out, and Eliezer and the other persons named in the orders were conveyed to Eritrea and kept there under military custody. In ordering these persons to be deported and in arranging for the place of deportation to be Eritrea, and for their conveyance there, the Government of Palestine purported to exercise the emergency powers vested in them. Though the exact organization adopted for governing Eritrea at the material date has not been shown in evidence, it is sufficiently clear that it is territory captured from the Italians during the war, and was at all material times held by the British under military government. It was and is in no way subordinate to the Palestine Government but is under the control of a Chief Administrator, who is the head of the Military Government. It is not suggested that any court in Palestine had authority to issue the writ or ensure its execution in Eritrea, and it does not seem to be disputed that Eliezer came under the control of the military authorities there. The documents produced show that Brigadier McCarthy, on June 23, 1945, issued a Proclamation No. 54, dated Asmara, June 23, 1945, which contained the following provisions:

"WHEREAS it is necessary to make provision for the arrest and detention of suspected persons,

NOW THEREFORE I, Charles D'Arcy McCarthy, Officer of the Most Excellent Order of the British Empire, Brigadier, hereby proclaim as follows:

1. ARREST AND DETENTION OF PERSON ON SECURITY GROUNDS.

The Chief Administrator may order the arrest and detention of any person whom he has reasonable cause to believe to be or to have recently been concerned either inside or outside the occupied territory in acts prejudicial to public safety or to the interests and safety of any of the British or Allied Armed Forces, or in the preparation or instigation of such acts.

2. DETENTION OF PERSONS TRANSFERRED FROM ANOTHER TERRITORY.

Where any person has been ordered to be detained or deported by the authorities of any British Colony or Protectorate or of any territory in respect of which a mandate on behalf of the League of Nations has been accepted by His Britannic Majesty or of any other territory occupied by the British or Allied Armed Forces and has by order of a competent authority been transferred to the occupied territory, the Chief Administrator may order his detention after arrival in the occupied territory.

3. POWER TO CANCEL OR SUSPEND ORDER OF ARREST OR DETENTION.

The Chief Administrator may at any time cancel any order made hereunder or may direct that the operation of such order be suspended subject to such conditions as he may think fit.

Given under my hand at Asmara,

this 23rd day of June, 1945.

(Sgd) C. D. MCCARTHY,

Brigadier,

Chief Administrator."

The Crown contends that this law, acted on with specific reference to Eliezer by an order of the Eritrean Military Government, dated October 4, 1945, made under the provisions of Proclamation No. 54, shows that the detention in Eritrea was legitimate according to the law of the place of detention: that the court in Palestine had no evidence before them to the contrary: that the law itself was so far as the courts in Palestine were concerned a foreign law: and that those courts had no jurisdiction to adjudicate on the validity of acts done under a foreign law in a foreign country or to order the release of persons detained in a foreign country.

The petition filed in the court of Palestine by the father of

Eliezer was dated September 4, 1945. It named as respondents (1.) the General Officer Commanding, Palestine, representing the Commander-in-Chief, Middle East; (2.) the Inspector-General of Police and Prisons. It recited the facts of Eliezer's arrest by the police authorities under Reg. 15B of 1936, his removal from Palestine and his detention in a detention camp in Eritrea and later in the Sudan, and concluded as follows: "6. On the 23rd July, 1945, a reply was sent by the Acting Chief Secretary of the Government of Palestine to Messrs. M. Seligman and Co., a copy of which as well as of the enclosures mentioned therein is also attached hereto and marked 'B.' 7. It is respectfully submitted that petitioner's said son is being unlawfully detained by respondents or one of them as they had no power to detain abroad and/or keep in custody abroad and/or order to be kept in custody abroad persons who have been ordered to leave and remain out of Palestine."

There was no evidence before the court which would justify the allegation that Eliezer was being detained by the respondents or one of them. At the date when the petition was filed he had been brought back to Eritrea, and the fact of his temporary detention in the Sudan could not be, and has not been treated as, material in habeas corpus proceedings which were not begun until after its termination. On the petition coming before the court in Palestine, it was ordered that a summons should issue directed to the respondents calling on them to show cause why they should not produce Eliezer before the court and to await further orders from the court. It is true that the order of deportation already quoted ordered that the deported man should be placed in the custody of the Commander-in-Chief, Middle East, and of the second respondent while awaiting deportation and while being conveyed out of Palestine, but that period had long since expired at the date of the petition, and when the court made the order neither respondent had the deportee in his custody or control nor had either of them any power to produce the body. The Commander-in-Chief, Middle East, was not within the jurisdiction of the Palestine court, his headquarters being then at Cairo, nor could the General-Officer Commanding Palestine be deemed to represent the Commander-in-Chief so as to make him a respondent.

In these circumstances affidavits in opposition to the granting of the petition were filed, one by the Acting Assistant

Superintendent of Police, Palestine, who set out true copies of the orders already quoted herein under the Emergency and Defence Regulations and deposed that in accordance with these orders Eliezer was on October 19, 1944, deported from Palestine and was at the time in Eritrea, held in detention by virtue of an order of the Chief Administrator of that territory. In addition, Major Wickstead, an officer of Security Intelligence, produced a copy of the Eritrean Declaration already referred to and deposed that he found on examination of the records relating to persons in respect of whom orders of detention had been made in Eritrea that Eliezer was under detention there by virtue of an order made on October 4, 1945, by the Chief Administrator of Eritrea under Proclamation No. 54. When the former deponent was cross-examined on behalf of the petitioner he deposed that Eliezer had been kept in Palestine in detention from October to November, 1944, that he was then removed by the military authorities to Eritrea, that some detainees had been released and returned to Palestine and that Eliezer's case had been examined from time to time by an Advisory Committee set up by the Government of Palestine. Major Wickstead was also cross-examined and said that his headquarters were in Cairo, that he had seen the committing document of Eritrea in his capacity as already deposed to, and he swore that the document of October 4, 1945, was an order of detention signed by the Chief Administrator of Eritrea.

On December 18, 1945, after hearing the arguments and discussing the evidence, the High Court, the Chief Justice of Palestine and Shaw J. sitting as its members, emphasized the grave questions of constitutional importance involved and observed that it was of as serious concern to the High Court of Palestine that a Palestine citizen should be exposed to summary arrest, transported to Eritrea and imprisoned there without any conviction or order of a court of justice as a similar case mutatis mutandis would have been in England, and said that the Palestine court would be no less assiduous in insisting that the Executive should establish step by step legal justification for the arrest than the English court. The court went on to say that neither the legality of the orders quoted above of arrest and deportation nor the legality of the order to the respondents to convey Eliezer to Eritrea, and keep him in custody while being so conveyed was questioned. As to the detention in Eritrea, the Chief Justice declared that no order of the Palestine Government could justify the detention of a

Palestine subject in a foreign country and cited O'Brien's case(1) as his authority. But in his view that case was distinguishable from the present one in as much as Eliezer was not being detained by the Palestinian authorities. His words were(2): "I have no doubt that if we, in this court, were satisfied, as the judges were in the O'Brien case(1), that the person who made the order of deportation, in this case the Officer Administering the Government, had no power to make the order, and if, again, as in the O'Brien case(1), no authority in the country to which he had been deported had made an order of detention, we would not accept that part of the argument of the Solicitor-General which sought to establish that as Arie Ben Eliezer had passed out of the control of the respondents no rule should issue against them. I for one would have followed precedent in the O'Brien case(1) and made the rule absolute, merely for the purpose of testing the truth of the matter, because, as I have indicated, I am persuaded that the Palestine authorities can exercise far more effective control over the movement of Arie Ben Eliezer than Dr. Barnado could over the movements of Harry Gossage (in the case of Barnardo v. Ford (3)) or than the Home Secretary could in the case of O'Brien (1). But here the further question as to whether the body could be produced does not arise because I am unable to resist the conclusion that the orders made by the Officer Administering the Government, which were effective to deprive this man of his liberty up to the borders of the territory of Eritrea, were lawfully made. It appears to me also that the order of detention made by the Chief Administrator in Eritrea was lawfully made, but as to this I make no judicial pronouncement because neither the Chief Administrator nor the territory of Eritrea is within the jurisdiction of this court, and no writ of habeas corpus could issue out of Palestine by authority of any judge or court here into Eritrea. If the petitioner wishes to question the validity of this order he must do so in the courts of Eritrea. The rule is therefore discharged." Shaw J. concurred for similar reasons.

Their Lordships have approached the questions at issue here with the greatest anxiety, because the freedom of a Palestinian citizen is involved. The difficulties always present in such cases of detention without trial under emergency powers are,

(1) [1923] 2 K. B. 361.

(2) (1945) 12 P. L. R. 559.

(3) [1892] A. C. 326.

they may here repeat, increased in the case under review where the detention complained of takes place in a territory outside and independent of the country whose courts are invoked. The Palestine court has accepted the legality of the orders of deportation, which are clearly within the competence of the Palestine Government. While the deportation order stands and its legality is not overruled its effect is that Eliezer is required to leave and remain thereafter out of Palestine. Such an order is not ultra vires of a limited territorial power like Palestine, nor are the further or ancillary powers of providing a place to which the deportee may proceed (see Attorney-General for Canada v. Cain (1), recently followed and applied by this Board in The Co-operative Committee on Japanese Canadians v. The Attorney-General of Canada (2). The order, indeed, so long as it remains in force renders it unlawful for Eliezer to seek to enter Palestine, and no court in Palestine has authority to require his production in that country in defiance of an order lawfully made by its responsible government. In legal strictness the Palestine Government is not concerned beyond the express terms of the order with events in Eritrea. What was to be done there was left to be dealt with by the law of that country, and the complaint can only be that the detention in Eritrea is not lawful. The law of Eritrea justifying according to its terms the detention has been produced and the order specifically detaining Eliezer has been sworn to in affidavit and orally in cross-examination under oath by an official who gives the source of his information. The actual order has not been produced, but there does not appear any reason why, in a proceeding like the present, effect should not be given to the sworn testimony of the responsible deponent. In these circumstances, the Palestine court has no jurisdiction to inquire into the legality of an order made by the responsible governing authority in Eritrea, under which Eliezer is detained in that country and in any case has no ground for questioning that order.

Counsel for the appellant has felt the difficulty which this aspect of the case presents. But he has sought to overcome it by a reliance on the decision of the Court of Appeal in Rex v. Secretary of State for Home Affairs. Ex Parte O'Brien (3). That authority was relied on for two purposes (1.) to support an argument that on the facts of the present case the Palestine

(1) [1906] A. C. 542.

(2) Ante p. 87.

(3) [1923] 2 K. B. 361.

Government could properly be ordered to produce the body, and (2.), that the proper order was not to discharge the order nisi but to make an order nisi which would enable the court, without deciding the question whether the Palestine Government had control of Eliezer, to clear up any doubts there might be as to the facts. In their Lordships' view, however, O'Brien's case(1) does not, when carefully considered, afford any help in this appeal. The central feature in that case was that there never was an effective legal order. The order relied on was made by the English Secretary of State for internment of O'Brien in the Irish Free State after the setting up of an Irish constitution and an Irish Executive. The Court of Appeal held that the order was illegal. Scrutton L.J., who at p. 391 gave as one reason for his opinion that there was never any power to order internment in a place over which the government or person issuing the order had no control, thus summed up his conclusion(2): "It may be that on hearing that in the opinion of this court the order was issued without legal authority, the Home Secretary, with the assistance of the Irish Free State Government, will produce the body, as it is hardly in the interests of either Government to act illegally. For these reasons I think that the rule should be made absolute for the writ to issue on the terms of the decree nisi." The other Lords Justices gave judgment to the same effect. The Secretary of State thereupon produced the body of O'Brien, giving as their justification, the order of internment which the court had held to be bad; the court made the order absolute and O'Brien was released. The Secretary of State sought to appeal to the House of Lords. It was not contended that an order of release could be the subject of a further appeal, but it was argued that the order in question did not direct O'Brien's discharge and hence might be appealed against. The House of Lords refused to draw this distinction and said that the actual order had determined the illegality of the applicant's detention and his right to liberty and was final though it did not direct his discharge. Accordingly it was held that no appeal lay. The House distinguished Barnardo v. Ford (3) as being a case of a different type not involving the question whether a person in prison ought to be set at liberty, but the entirely different question, which of several persons ought to have custody of a child. Lord Finlay said(4): "The matter was really disposed

(1) [1923] 2 K. B. 361.

(2) Ibid. 392-3.

(3) [1892] A. C. 326.

(4) [1923] A. C. 618.

of in the present case when the Court of Appeal delivered judgment to the effect that the order of internment was invalid. O'Brien was entitled to his discharge and a custody which the court had declared to be illegal could not properly be continued at any time beyond that which was necessary for carrying through the formal proceedings culminating in the order for discharge." Lord Birkenhead to the same effect said that "if upon the return of the writ it was adjudged that no legal ground was made to appear justifying detention, the consequence was immediate release from custody"(1).

In the present case the Palestinian court has found itself unable to say that the detention was illegal. They have said that it was beyond their competence to decide on the illegality of the detention in Eritrea. Their Lordships, as they have indicated, agree with this view but offer no opinion as to the further suggestion of that court, that, if the petitioner wishes to question the validity of the order made in Eritrea, he must do so in the courts of Eritrea. The validity and effect of the Eritrean law and order may raise many difficult questions of constitutional or other law. The legality of acts done, or of detention enforced in, that country in pursuance or assumed pursuance of its law or orders is, however, clearly beyond the jurisdiction of the Palestine court and of this Board on appeal.

In their Lordships' opinion the judgment appealed from was right in dismissing the petition. On the issue whether the petitioner's son can be deemed to be detained in Eritrea by authority of the Palestinian Government it is clear that the whole position is different from that in O'Brien's case(2). The Palestinian Government could not legally make an order for detention in Eritrea, nor could the Eritrean Government justify detaining a man in their territory on the ground that it was done at the request of the Palestinian Government. Indeed, it is not contended that they could. What is asserted, is that the detention is exercised under the lawful authority of the Eritrean Administration and the legality of the detention must be judged by the law of the place of detention. In any case, O'Brien's case(2) is so different in its facts and its real ratio decidendi that it can afford no precedent for this case.

Their Lordships have abstained from expressing any opinion about what was done in Eritrea or in the Sudan. These matters are outside the competence of the Palestinian court and therefore of this Board, which is only a Court of Appeal to determine

(1) [1923] A. C. 610.

(2) Ibid. 603.

whether the respondents or either of them have acted contrary to Palestinian law. Their Lordships would only add that certain preliminary objections taken in the court in Palestine were properly overruled.

They have accordingly, for the reasons they have stated, humbly advised His Majesty that the appeal should be dismissed.

Solicitors for appellant: Kaufman & Co.

Solicitors for respondents: Burchells.