William Musala Chipango v The Attorney-General (1970/H.P. Const/Ref /2) [1970] ZMHC 17 (14 September 1970)

WILLIAM MUSALA CHIPANGO v THE ATTORNEY-GENERAL (1970) ZR 31 (HC) HIGH COURT MAGNUS J 14th SEPTEMBER 1970 I 1970/H. P. Const/Ref /2 10 Flynote Constitutional law - Fundamental rights - Detention - Right to be furnished with grounds for detention not later than fourteen days after detention and publish in Gazette not later than one month - Contravention of these provisions - Effect of. Constitutional law - Detention - Conditions imposed under s. 26A (1) (a) and 15 (b) - contravention of - Whether makes detention unlawful. ■ Headnote The applicant was detained under an order made by the President under reg. 31A of the Preservation of Public Security Regulations on the 12th February, 1970. Grounds for his detention which were required to be furnished him in accordance with s. 26A (1) (a) were furnished on 28th 20 February, 1970, and publication of the detention order required to be published in the Gazette within one month after commencement of the detention took place on 2nd April, 1970. The State admitted contravention of the statutory provisions. Counsel for the applicant submitted that contravention of these 25 provisions made the detention of the applicant void ab initio or the continued detention void. However the State maintained that this did not invalidate the detention but entitled the applicant to other remedies such as damages. The State further submitted that these were conditions I subsequent and not precedent. 30 Held: These are constitutional conditions subsequent to arrest, they are mandatory and fundamental rights of the individual, and if they are contravened they render I the continued detention of the applicant unconstitutional and unlawful. 35 Cases cited: ■ ■ (1) Das v District Magistrate, Cuttack (1969) AIR 43. (2) Mohammed Shafi v State of Jammu and Kashmir (1970) AIR 688. (3) Dale's Case (1881) 6 QBD. 376. I (4) Uganda v Commissioner of Prisons, [1966] EA 514. 40 (5) Liversidge v Anderson (1941) 3 All ER 338. (6) State of Bombay v Atmaram ( 1951 ) AIR SCR 167. 1970 ZR p32 MAGNUS J Legislation referred to: Constitution of Zambia, 1965 (App. 3), as. 26A (1) (a) and (b), 28 (1) and (4). Preservation of Public Security Regulations (Cap. 160), reg. 31A. I D M Lisulo, Lisulo & Co., for the applicant. 5 L S Baron, for the respondent. Judgment Magnus J: The applicant purports to apply under s. 28 (1) and (4) of the Constitution against a detention order made in respect of him by the President under reg. 31A of the Preservation of Public Security 10 Regulations. I say "purports to apply" since, although it seems clear that he has a present right to apply under sub-s. (1) of s. 28, sub-s. (4) relates to appeals to the Court of Appeal, a circumstance which does not yet apply. However, no objection has been taken to the form of the application, which was made by the applicant in person before he was 15 granted legal aid, and by consent, I propose to deal with the merits of the application without regard to the precise form in which the application comes before me. ■ ■ I Mr Baron, who appeared for the respondent, agreed to the following facts: 20 1. That the detention of the applicant commenced on the 12th February, 1970. 2. Grounds for his detention, which were required to be furnished him in accordance with I s. 26A (1) (a), were furnished on the 28th February, 1970. 25 3. Publication of the detention order, required by s. 26A (1) (b) to be published in the Gazette within one month after the commencement of the detention, took place on the 2nd April, 1970. He therefore accepted that neither para. (a) nor para. (b) of s. 26A (1) had been ■ complied with, and there was therefore a contravention of 30 these provisions. The issue that remained, therefore, for me to resolve was whether by reason of this contravention, the detention of the applicant became unlawful. ■ Section 26A of the Constitution, which was inserted in the 35 Constitution by the Constitution (Amendment) (Number 5) Act 1969, provides, so far as we are concerned, as follows: "26A (1) Where a person's freedom of movement is restricted or he is detained, under the authority of any such law as is referred to in section 24 or 26 of this Constitution, as the case may be, the 40 following provisions shall apply: ■ (a) he shall, as soon as is reasonably practicable, and in any case not more than fourteen days after the commencement of his detention or restriction, be furnished with a statement in writing in a language that he understands specifying in 45 detail the grounds upon which he is restricted or detained; ■ 1970 ZR p33 MAGNUS J (b) not more than one month after the commencement of his restriction or detention a notification shall be published in the Gazette stating that he has been restricted or detained and giving particulars of the provision of law I under which his restriction or detention is authorised . . . " 5 ■ ■ It will be noted that both these paragraphs are mandatory in their terms. So far as para. (a) is concerned the grounds must be furnished "as soon as is reasonably practicable, and in any case not more than fourteen days after the commencement" of the detention, and by paragraph (b) notification must be published not more than one month after the 10 commencement of the detention. Mr. Lisulo submitted that non-compliance with these provisions rendered the detention void. He argued at first that it rendered the detention order void ab initio, but he agreed later that at the most it could not have done more than render void the continued detention of the applicant. He argued, however, that the 15 reason why this should be so was that nobody can he deprived of his liberty except by due process of law, and that the provisions of the two paragraphs which I have mentioned were part and parcel of the validity of the detention, failure to comply with them rendering the detention unlawful. He quoted in support two recent Indian cases: Das v District of Magistrate, Cuttack (1) and Mohammed Shafi v State of Jammu and Kashmir (2). I should mention here that the Indian legislation is contained in the Preventive Detention Act, 1950, and has provisions which are roughly similar to ours although there are significant differences, notably that the Indian legislation is permanent whereas in our case it is 25 emergency legislation. The Indian provisions, so ■ far as relevant to our case, require the detained person to have communicated to him the grounds for his detention "as soon as maybe, but not later than five days from the date of detention", and further provides that the detaining authority "shall afford him the earliest opportunity of making a 30 representation against the order to the appropriate Government". In the first of the cases to which I have referred, it was found as a fact that the detained person did not have the grounds served upon him within the five days prescribed, and the grounds, which ran into fourteen typed pages, and referred to his activities over a period of thirteen years, 35 were given to him in a language which he did ■ not understand, and without any attempt at explanation. The court held that the failure to serve the grounds within the five days required made the order invalid, and any subsequent detention of the appellant unauthorised. The second and later case also decided that failure to serve the grounds within the 40 required period rendered the detention order illegal and entitled the detainee to be set at liberty. Mr Lisulo also tried to argue that the grounds furnished to the applicant in the present case were not sufficiently detailed to comply with para. (a) of s. 26A (1) of the Constitution, but Mr ■ ■ Baron objected to this being argued in the present case, since it had not been 45 raised either in the petition or in the supporting affidavit filed by the applicant, and I do not think it is open to an applicant, in proceedings of this nature, to raise a new ground at the hearing without giving the ■ 1970 ZR p34 I MAGNUS J respondent the opportunity of dealing therewith. Since Mr Lisulo chose, on instructions, not to avail himself of the opportunity of adjourning, I do not propose adjudicating whether the grounds in fact furnished to the applicant in the present case were or were not sufficient to comply 5 with the paragraph concerned. I would, however, observe, that, as the paragraph requires detailed particulars, a general statement of the grounds would not, in my opinion, suffice, and I should have thought that the grounds must be at least as particularised as they would have to be in a pleading in an ordinary action. Having said that, I will say no more 10 on the question of what the grounds should contain. Mr Baron, in reply, whilst conceding that s. 26A had been complied with, maintained that this did not invalidate the detention but merely entitled the applicant to other remedies such as damages. His submission was that a defect is only fatal when compliance is a condition precedent 15 to the validity of the imprisonment, but not where it is a condition subsequent. The detention was made under reg. 31A of the Preservation of Public Security Regulations, and s. 26A merely sets out the safeguards which the legislature has provided to ensure that the individual is given the maximum opportunity of enjoying the rights left to him. The basic 20 rule, he said, was set out in Dale's case (3) at pp. 469 - 470, where Cotton, LJ, said: ■ ■ ■ "I quite agree with Brett, LJ, that when persons take upon themselves to cause another to be imprisoned, they must strictly follow the powers under which they are assuming to act, and 25 if they do not, the person imprisoned may be discharged, although the particulars in which they have failed to follow those powers may be matters of mere form." I He also drew attention to the words of Brett, LJ, in the case at p. 463: 30 ■ "I take it to be a general rule that the courts at Westminster will not allow any individual in this kingdom to procure the imprisonment of another, unless he takes care to follow with extreme precision every form and every step in the process which Is to procure that imprisonment. I consider this to be a wholesome 35 and ■ good rule, and to be in accordance with the great desire which English Courts have always had to protect the liberty of every one of her Majesty's subjects." Mr Baron's argument was that this basic rule referred to steps to be taken before imprisonment could lawfully be effected, i.e. that these 40 steps referred to conditions precedent to the imprisonment, but that nothing which happened later could invalidate an imprisonment which had already been validly effected. He further argued that if contraventions of paras (a) and (b) of s. 26A (1) invalidated the imprisonment, then the contravention of para. (d), which provides that the detainee shall be 45 afforded reasonable facilities to consult a legal representative of his own choice, will also invalidate the imprisonment and he suggested that such a construction was too drastic, and if Parliament had intended such a ■ ■ 1970 ZR p35 I MAGNUS J drastic result it would have said so in plain language. He further cited to me the case of Uganda v Commissioner of Prisons (4), where the learned Chief Justice of Uganda decided, on similar legislation to ours, that insufficiency of the statement of the grounds of detention served on the applicant was a mere matter of procedure: it was a condition subsequent, 5 not a condition precedent, and was curable by the High Court. Mr Baron then went on to point out certain points in which the Indian legislation differed from ours. He pointed out, as I have already observed, that the Indian provisions are permanent whereas ours are emergency powers only. The Indian detaining authorities were relatively junior administrative 10 officers, whereas in our case, the detaining authority was the President himself. In India the recommendations of the tribunal to whom a detained person can appeal had to be followed, whereas in our case, the President is not bound to follow the tribunal's recommendations. And in general he submitted that the obligations of the State are not to be extended 15beyond what the ■ I ■ legislature has laid down, and the legislature has not said, in terms, that non-compliance with s. 26A requires a detainee to be released. Mr Lisulo in reply made further comparisons between the Indian provisions and ours. For example, he said that the Indian provisions 20 require notice to be served within five days ■ after detention, whereas our provisions require fourteen days, and were, therefore, more stringent as against the subject. The advisory bodies of the Indian legislation require higher qualifications for members thereof than ours do. Under the Indian legislation, the authority is under a legal duty to refer case to an advisory 25 board within thirty days, whereas in our legislation the detaining authority has no such duty. In the Indian legislation, the maximum period of detention is twelve months, whereas in our case it could be indefinite, and as Mr Baron pointed out, in India the advice of the advisory ■ board is binding, whereas in our case the advice of the tribunal is not. Therefore, 30 he said, in fact the Zambian provisions are stricter than the Indian provisions, and yet in India the courts have held that non-compliance renders a detention illegal. It would, of course, be desirable in all cases, and more especially in cases where the liberty of the subject is concerned, if the legislature were 35 more specific in what it intended to do. I suppose, however, that this would be a counsel of perfection which, although it would lighten the work of the courts, would be achieving something which no legislature appears to have achieved so far. It therefore falls upon the courts, as it so often does, to construe what Parliament in its wisdom intended should 40 be the law. Mr Lisulo in his early arguments suggested, and I was at one time inclined to agree with the doctrine, that strict construction in favour of the subject ought to be applied in this case. I find myself in agreement, however, after due consideration, with Mr Baron that the question of strict construction only falls to be applied where there is an 45 ambiguity to resolve. The point was dealt with very fully in the admirable dissenting judgment by Lord Atkin in Liversidge v Anderson (5) , at p. 357, and I do not think that the question of strict construction arises in the present case. The wording of the relevant provisions of s. 26A with ■ ■ ■ 1970 ZR p36 I MAGNUS J which we are here concerned, is quite clear. It provides that, where a person is restricted or detained under the authority of a law, such as the one under which the present applicant has been detained, he must as soon as is reasonably practicable, and in any case not more than fourteen 5 days after the commencement of his detention or restriction, be furnished with the particulars required by para. (a). It is equally clear that under paragraph (b) notification of his restriction or detention must be published in the Gazette within one month. These provisions are mandatory and it seems to me that using terms such as conditions precedent and conditions 10 subsequent beg the question. Mr Baron has, in fact, tried to draw an analogy between a restriction on the freedom of an individual, and a breach of contract. It is true that in the case of a contract, breach of a condition precedent prevents the contract from ever becoming operative whereas breach of a condition subsequent need not render the contract 15 void, but may be answerable in damages only. Even here, however, this is not an invariable consequence of breach of a condition subsequent, because even in the law of contract, where a breach of a condition subsequent is of such a nature that it goes to the root of the contract, or where damages are not an adequate remedy, rescission of the contract may be 20 obtained. However, as I have said, we are not here concerned with contractual relations between two contracting parties. We are here concerned with the right of the State to deprive a citizen of his personal liberty which is otherwise protected by s. 15 of the Constitution. I am impressed by a statement of Basu in his commentary on the Constitution 25 of India, 5th Ed., Vol. II, at p. 104, which was cited to me by Mr Baron. In dealing with the meaning of the words "as soon as maybe" in the Indian provisions for the bringing of an accused person before the courts, he says: ■ ■ ■ ■ "But it will be possible for the Court in a proceeding for habeas corpus 30 to pronounce whether the arresting authority has communicated the grounds as seen as is reasonable in the circumstances, and if it finds that a reasonable time has already passed and the accused person has not yet been informed of the grounds of his arrest, the Court would order his immediate release. The reason 35 is that the two conditions of arrest embodied in this clause are constitutional conditions subsequent to arrest, and there is no reason to construe ■ • these conditions as other than mandatory, being valuable fundamental rights of the individual. So, even though the arrest has been initially valid, the failure to supply 40 the grounds within a reasonable time may render further detention unconstitutional or illegal," and he cites in support of this statement the case of the State of Bombay v Atmaram (6), also the basic rule which I have already cited from Dale's case. This particular statement of Basu does not, of course, deal with 45 preventive detention and is not necessarily on all fours with our case but his statement would seem to apply just as forcibly to the present case as it does to the instance cited by him. I am particularly impressed by his description of the two conditions of arrest to which he refers. He ■ ■ 1970 ZR p37 I ■ ■ MAGNUS J describes these as "constitutional conditions subsequent to arrest", and I prefer this description as applied to paras (a) and (b) of s. 26A (1) of our Constitution rather than Mr Baron's bald description of them as "conditions subsequent". As I held that these are constitutional conditions subsequent to arrest, they are all mandatory and fundamental 5 rights of the individual, and if they are not followed, I can only conclude that such non-compliance must render further detention unconstitutional and unlawful. I say this on the analogy of Basu's statement which I have already quoted above and bearing in mind Mr Baron's own statement which I accept, that paragraphs (a) and (b) of s. 26A (1) are provisions 10 to ensure that the individual is given the maximum opportunity of enjoying the rights left to him. I agree with Mr Baron's submission that Dale's case dealt with constitutional conditions precedent to a lawful imprisonment on the facts of that case, but I cannot agree with him that the converse necessarily follows, and if the initial imprisonment is valid, 15 then the infringement of constitutional conditions subsequent to arrest cannot invalidate that imprisonment as from the date of non-compliance. It would appear that the Uganda case is at variance with this finding of mine. I do not know what constitutional powers the High Court of Uganda has to correct errors of procedure, but in so far as the decision of 20 the learned Chief Justice in that case is at variance with my finding in the present case, I must regretfully disagree with the learned Chief Justice, particularly as he seems to base his finding on a distinction between condition precedent and condition subsequent, which I have already said is more appropriate to the law of contract than to cases 25 relating to the liberty of the subject, even if non-compliance were a mere matter of procedure, and here I must find that it is more than that. Dale's case is authority for saying that failure to follow a mere matter of form is fatal. Here the requirements of s. 26A are far more than mere matters of form. As I have said (following both Basu and Mr Baron) 30 they are fundamental rights of the subject. There remains one further point raised by Mr Baron with which I have to deal and that is his suggestion that if non-compliance with paras (a) and (b) are to render the continued detention unlawful, then the same must apply to the remainder of the paragraphs of that subsection, namely 35 paras (c), (d), and (e). He may be right, although, fortunately, I do not have to adjudicate on breaches of any of those paragraphs. It may well be that, if for example, under para. (c), a detainee requests a review after he has been in detention for a year, and that review is not carried out, or is not carried out in accordance with that paragraph, then he is also entitled to be released. It may even be that breaches of the other two paragraphs will have the same effect. I do not have to decide that in this case, and therefore, the point must be left open for the future. However, I am clear, and am fortified in this opinion by the Indian authorities, to which I have referred, that non-compliance with paras 45 (a) and (b) renders the continued detention of the applicant unlawful, and I accordingly make a declaration to that effect. Application allowed ■ ■ ■ ■ ■