States of Emergency - Centre for Policy Alternatives

the detainee) to establish a prima
facie case against the good faith
of the Secretary, and that the petitioner must prove the facts
necessary to controvert the matter stated in the order, namely that
the Secretary was of the opinion that it was necessary to make the
detention order for the purpose speciLied in the order itself. 307
Hirdaramani
v.
 Ratnavale (1971) and similar cases followed the
(now discredited) reasoning of the majority in Liversidge
 v.
Anderson
 (1942) 308 where it was held that the court could not
enquire into the grounds for the belief that led to the making of
the order under emergency powers. It was a matter for
administrative discretion, although the court may examine
positive evidence of mala
 Kide or mistaken identity. As Cooray
observes, the essence of the decision was that, “In regard to a
‘political and non‐triable issue an objective test of reasonableness
could not be applied but only a subjective test.” 309 The majority in
Liversidge relied on the dictum
 of Goddard L.J. in Greene
 v.
Secretary
of
State
(1942) that, “…where on the return an order or
warrant which is valid on its face is produced, it is for the prisoner
to prove the facts necessary to controvert it.” 310
It is, however, the celebrated dissent of Lord Atkin in Liversidge
that has come to be regarded as the correct view on both the
307
Hirdaramani
v.
Ratnavale (1971) 75 NLR 67. See also Gunasekera
v.
De
Fonseka
(1972) 75 NLR 246.
308
Liversidge
v.
Anderson
(1942) AC 206
309
Cooray (1995), op cit., p.575; the counterparts of UK these cases in the
US are the Japanese‐American internment cases during World War II:
Korematsu
v.
United
States
(1944) 323 US 214; Hirabayashi
v.
United
States
(1943) 320 US 81. The issues raised by these difLicult cases within the
model of constitutional accommodation of states of emergency was
discussed extensively in Chapter 3, section 3.2.2, supra
310
Greene
v.
Secretary
of
State (1942) AC 284
193