States of Emergency - Centre for Policy Alternatives

merits as well as the statement of English legal principles, 311
where he delivered the withering opinion that he viewed “…with
apprehension the attitude of judges, who on a mere question of
construction, when face to face with claims involving the liberty of
the subject, show themselves more executive minded than the
executive.” Lord Atkin disagreed with the majority that the burden
of disproving the good faith of the executive should lie with the
petitioner: “Who could dispute the good faith of the Secretary of
State or disputing it, prove the opposite” His Lordship also stated,
“In English law every imprisonment is prima
facie
unlawful and it
is for a person directing imprisonment to justify his act.” 312 As
Cooray notes, “Eleven years earlier in a Privy Council decision
(Eshugbayi
Eleko
v.
Government
 of
Nigeria) 313 Lord Atkin made a
similar statement: ‘In accordance with British jurisprudence no
member of the Executive can interfere with liberty or property of
a British subject except on the condition that he can support the
legality of his action before a court of justice.’ This statement of
Lord Atkin was cited by Abrahams C.J. in the landmark case of
Bracegirdle.” 314
In keeping with this older tradition of deference (exempliLied in
cases such as Hirdaramani
v.
Ratnavale (1971)), judicial attitudes
in respect of executive accountability during emergencies, the
311
See Cooray (1995), op cit., pp.757‐758; R
v.
Inland
Revenue
Commissioners,
ex
parte
Rossminster
Ltd
(1980) AC 952 per
Lords Diplock
and Scarman; Nakkuda
Ali
v.
Jayaratne
(1951) AC 66 (Privy Council),
(1950) 51 NLR 457 (Supreme Court of Ceylon); R
v.
Home
Secretary,
ex
parte
Khawaja
(1984) AC 74
312
Liversidge
v.
Anderson
(1942) AC 206 at 245
313
Eshugbayi
Eleko
v.
Government
of
Nigeria
(1931) AC 662 at 670
314
Cooray (1995), op cit, p.758; In
re
Bracegirdle (1937) 39 NLR 193 at
212
194