Are a person’s fundamental rights lost during a pandemic?

Can a government violate human rights during the fight against the coronavirus? At times such as this, are one’s fundamental liberties suspended?

All over the world, during this coronavirus-induced lockdown, law enforcement officers commit acts of violence against a heedless public.

When asked, they speak of ‘curbing the risk of contagion’.

Many leaders have used the word ‘war’, and describe the situation as a ‘life and death struggle’.

At times such as this, are our freedoms to be swept away in a wash of public hysteria?

The law protects the subject against the government, viral invasion or no.

This reminds me of a case decided during the Second World War.

[1].  One man stood against this kind of relentless hysteria in 1941

He was Baron James Richard Atkin.

He wrote a dissenting opinion in the House of Lords case of Liversidge v. Anderson.1[1942]AC 206

He upheld fundamental freedom.

But a strong current of majority judgements overrode his opinion.

The following is very much a story of a fight for freedom, as it is of Lord Atkin.

[2].  If you say, ‘It is raining’—is that an ‘objective’ or a subjective’ belief?

Suppose C says, ‘It is raining at Jalan Sukun, Kuala Lumpur’.

That can be tested easily.

If ten people can see it is raining, then C’s belief is ‘objective’.

This is because independent facts support it.

Anyone can test that view.

C’s view is also a ‘reasonable’ one.

However, if these ten persons, upon gazing at the sky, merely see a sunny day with clear skies, then C’s belief is ‘subjective’: because only he believes it is raining – when it is not.

So, C’s ‘belief’ is not reasonable.

But whose view is true?

Obviously the ‘objective’ view of the 10 independent observers.

[3].  One little sentence:  ‘objective’ or ‘subjective’ belief?

Suppose a country is at war.

A and B are arrested.

A is arrested for murdering C, his neighbour. A wants to know why he is being detained.

There was no question, in Britain at that time, that A was entitled to an answer.

Now, on the very same day, B is arrested ‘on suspicion’ of helping the enemy.

When B asks why he was being detained, UK law treated him differently.

This was because of a 1939 Act. Regulation 18B, made under the Act, declared that the Secretary of State2equivalent to the Minister of Home Affairs could order the ‘arrest and detention’ anyone – if –

‘the Secretary of State has reasonable cause to believe a person to be of hostile origin or associations…’.3 The 1939 Defence regulation 18B provided that:‘[If] the Secretary of State has reasonable cause to believe any person to be of hostile origin or associations… and that by reason thereof it is necessary to exercise control over him, he may make an order against the person directing that he be detained’.

[4]. Low point during the World War II

All this happened at an extraordinary time. Britain had entered the Second World War in September 1939.

It was said to be at the ‘lowest point in the War’.4Geoffrey Lewis, Lord Atkin, [(1983) Butterworths)

[5]. Bombings and spies

The German Air Force, the Luftwaffe, targeted many British cities, including London.  Britain endured a ceaseless rain of bombs and suffered catastrophic destruction: morale was low.

It was ‘the gravest national crisis in the life of anyone alive in the UK, then or since.’ 5Lord Bingham, ‘Lives of the Law: Selected Essays and Speeches: 2000-2010’.(Oxford University Press, 2011).

As public anxiety heightened about spies supporting the enemy, the UK Parliament enacted the Emergency Powers (Defence) Act 1939.6 ‘It empowered the Parliament to issue any controls or regulations that the government felt were necessary to secure public safety, defend the realm, maintain public order and enable the efficient prosecution of the war.’ See here.

Imagine the tension in the air.

None of it affected Atkin.

He was only interested in the law and human rights.

[6].  Regulation 18B had a history to it – a change of wording

The original words of Reg. 18B were as follows;

‘If the Secretary of State if satisfied that [Mr. B was aiding the enemy] etc’.

MPs took serious objections to its wording.7Lewis, Ibid, p. 147-149

As political pressure mounted, the Government withdrew the Regulations. It reissued it with this amendment:

‘If the Secretary of State has reasonable cause to believe that [Mr. B was aiding the enemy] etc’.

This change seemed to make a big difference – but the majority of the judges were indifferent to it.

[7].  What is the meaning of the word ‘reasonable’?

What was the meaning of the sentence,

‘If the Secretary of State has reasonable cause to believe [something]?

Was it an ‘objective’ or ‘subjective’ belief?

What do you think?

This is exactly what happened in the case of Liversidge v. Anderson.8 [1942] AC 206

[8].  Why was Liversidge arrested?

In May 1940, Jacob Perlzweig was a pilot officer in the Royal Air Force Volunteer Reserve.

He had changed his name to ‘Robert Liversidge’.

This was not uncommon among Jews.

But Liversidge had a shadowy side to his life, and had become a wealthy businessman by the late 1930s.9Lord Bingham, Ibid, at 203.

Because he had had a chequered past, British Secret Service became increasingly interested in Liversidge.

John Anderson, the Secretary of State, issued a warrant under Regulation 18B, arresting Liversidge.

He was thrown into Brixton Prison.

Liversidge was not accused of – or charged with – any criminal conduct.

They gave him no reason for his detention.

The minister’s warrant simply said that the Home Secretary had ‘reasonable cause to believe’ that Liversidge was ‘a person of hostile associations’.

[9].  Liversidge sues the Home Secretary – he wished to know why he was detained

On 14 March 1941, Liversidge sued the Secretary of State for unlawful detention.

He wished to know on what grounds Anderson had believed that Liversidge was ‘a person of hostile associations’.

And second, Liversidge asked what ‘reasonable cause’ did Anderson have to believe that it had become ‘necessary to exercise control’ over him.

He asked the court for a declaration that his detention in Brixton prison was unlawful.

He claimed damages for false imprisonment.

[10].  Liversidge argues that the Home Secretary must show reasonable grounds

Liversidge argued that ‘The Home Secretary must show that he had reasonable grounds for believing what he said he did, and that he had not.’10 Pritt K.C. and G.O. Slade for the appellant, at p.207 of the Report

His appeals were thrown out.

Liversidge took it up to the House of Lords.11 ‘Lord Atkin; From Queensland to the House of Lords’: see here.

[11].  Aerial bombings directly affected the case

The aerial bombing campaign directly affected the delivery of the decision in Liversidge v Anderson.

The Lords’ Chamber, where decisions were usually delivered, had been blown up.

The Law Lords had to deliver their judgments in the King’s Robing Room.

[12].  Greene’s case

A case which was heard at the same time as Liversidge was the Green case.12 Greene v. Secretary of State for Home Affairs ex parte Greene [1942] 1KB, page 87 It had almost identical features to the Liversidge case.

When Green’s case reached the Court of Appeal, it decided that the meaning of the phrase ‘If the Secretary of State has reasonable cause’ was to be given a ‘subjective meaning’.

Thus it was for the Home Secretary himself to judge whether the grounds of his own beliefs were reasonable.  If the minister thought so, that was it.

That was the effect of the AG’s argument in the House of Lords.

[13].  The odd thing about Greene’s case

When Greene had demanded to know why he had been detained, the Home Secretary had obligingly explained to him what the grounds of his arrest and detention were.

But in Liversidge’s case, the Home Secretary, Herbert Morrison, who had by that time succeeded Sir John Anderson, refused to divulge the details.

[14].  The AG argues the Government’s position

The Attorney General argued that the act of the Home Secretary was ‘an Executive act’ – ‘a Government’s act’: and so a court of law could not call his actions into question.13Sir Donald Somervell A.-G. and Valentine Holmes at p.  209 of the Report.

[15].  The majority of the House of Lords judges ruled Liversidge was not entitled to know why he was detained

The judges delivered their decision on 3 November.

Clearly the judges were anxious about the War.

The majority agreed with the Home Secretary.

They ruled that Liversidge was not entitled to know why he was being detained.

If the Home Secretary had sworn an affidavit claiming he held a certain belief, that was good enough.

The majority said a court would not – and should not – look behind it.

[16].  Atkin criticises the Green case

Atkin remonstrated that the Greene case had suffered a drawback when it reached the Court of Appeal.  The tribunal, said Atkin, had become ‘infected with subjective virus.’14At p. 242 of the Report

In an earlier case,15R v. Secretary of State for Home Affairs. Ex parte Lees[ [1941] 1 KB 72 the Home Secretary,16 then represented by the Solicitor-General and the same junior counsel as in Liversidge’s case had ‘frankly accepted the burden of proving reasonable cause’ lay on him.17p. 242 of the Report

In the Liversidge case, the Home Secretary seemed to have taken an opposite position.

The problem was: all the Home Secretary had to do was to assert by affidavit that he had reasonable grounds for his belief.

No one could challenge his decision, unless it could be shown that ‘he did not believe what he said’.18Lewis, page 134

This was at the heart of the Home Secretary’s argument.

How on earth could Liversidge prove that the Home Secretary did not belief what he said?19p. 226 of the Report

[17].  Does the sentence, ‘If a man has’ can mean, ‘if a man thinks he has’?

Atkin converted the sentence,

‘if the Secretary of State has…’  into a question whether the words:

‘if a man has’, can mean, ‘if a man thinks he has’.20p. 226 of the Report

He said these two sentences could not mean the same thing.21Lewis, at p. 210

Atkin’s said the meaning of Regulation 18B had never been in question until 1941.

Atkin said:

‘It is an absolute power which, so far as I know, has never been given before to the executive, and … no such power is in fact given to the minister by the words in question’.22p. 226 of the Report

[18].  17 and 23 examples why the majority were wrong

He showed that for many generations, and in innumerable legal decisions, the Courts had accepted an ‘objective meaning.’

Atkin gave 17 examples in certain legislative clauses, which had used the phrase: ‘If it appears to the Secretary of State that’ and a related phrase: ‘If the Secretary of State is satisfied that …’  .

He then gave 23 further examples of how the phrase ‘… having reasonable cause to believe that …’ had been used in statutes.

In each of these cases, the belief of the minister had been an ‘objective’ one.

It was not enough if the minister said that he thought Liversidge was helping the enemy.

The court could test, and examine if the Minister’s belief was ‘reasonable’.23p. 232 of the Report

Atkin thought Regulation 18B demanded ‘an objective test’.24Lewis, at p. 137

He pointed out that the majority of the judges were wrong.

[19]. Effect of the change of Regulation 18B’s original wording

Atkin did not stop there. He referred to the way the Government had changed the wording of the regulation.

He argued that ‘the legislators [had] intentionally introduced the well-known safeguard by the changed word’.25 Meaning, Parliament had introduced the well-known word ‘reasonable’, as ‘a safeguard’.

He pointed out that it has always been the case that the Secretary of State had always proven by affidavit why he thought his belief had a ‘reasonable cause’.

He declared:

‘In a case in which the liberty of the subject is concerned, we cannot go beyond the natural construction of the statute’.26He relied on the reasoning of Pollock CB in Bowditch v. Balchin (1850) 5 Ex. 378.  He pointed out that his colleague, Lord Wright, had approved this in Barnett v. Gorman [1941) A. C. 378, 393, [1941] 3 All ER 45

[20].  ‘Amid the clash of arms, the laws are not silent’

Said Atkin:27p.244

‘In this country, amid the clash of arms, the laws are not silent’.

‘They may be changed, but they speak the same language in war as in peace’.

‘It has always been one of the pillars of freedom, one of the principles of liberty for which … we are now fighting, the judges are no respecters of persons and stand between the subject and any attempted encroachments on his liberty by the executive, alert to see that any coercive action is justified in law’.

[21].  Charles I, and the Court of the King’s Bench

Charles 1 was the King of England, King of Scotland, and King of Ireland from March 1625 to 1649.

He was beheaded in 1649.

A tyrannical ruler, he believed he had a divine right to rule.

He imposed taxes without Parliament’s permission, prorogued Parliament, and imprisoned some of its leaders.

The Court of King’s Bench did as he bid it.

Atkin called to mind those days:

‘In this case I have had to listen to arguments which might have been addressed acceptably to the Court of King’s Bench in the time of Charles I.28p.244

[22].  ‘I view with apprehension the attitude of judges …’

Atkin had begun that passage – which was to give much offence to his colleagues – with this sentence:

‘I view with apprehension the attitude of judges who won a mere question of construction and face-to-face with claims involving the liberty of the subject show themselves more executive minded than the executive’.

He said:

‘In a case in which the liberty of the subject is concerned, we  cannot go beyond the natural construction of the statute.’29p.244

And continued:

‘I protest even if I do it alone, against a strained construction put on words with the effect of giving an uncontrolled power of imprisonment to the minister’. 30p.244

[23].  Atkin pours his scorn:

He wrote,

‘I know of only one authority which might justify the suggested method of construction:

“When I use a word”, Humpty Dumpty said in a rather scornful tone, “it means just what I choose it to mean, neither more nor less”.

“The question is”, said Alice, “whether you can make words mean so many different things”.

“The question is”, said Humpty Dumpty, ‘which is to be master – that’s all.”31At p.245. Atkin quoted Lewis Carrol in ‘Through The Looking Glass’, c.vi]. Heuston says this passage to have resulted ‘from some sort of explosion and Lord Atkin’s mind’. (R.E.V. Heuston, ‘Liversidge v’ Anderson in retrospect’, 86 LQ R 36.

[24].  Atkin’s contempt for intellectual dishonesty

Atkin had expressed ‘contempt for the poverty, or intellectual dishonesty of arguments to which his own view was opposed. On such occasions, he thought that a dose of ridicule was apt’.32Lewis, page 138

The majority’s deference to Governmental power had been inexcusable: it was a position that the law could not support.

One judge described it as ‘war nerves’.33Mr Justice Stable, in a letter to Atkin— see Lewis, Op. cit., p. 152

Atkin had ‘shown them up’.

The majority had two wishes: to maintain their present views, and to hold on to their dignity, in the face of Atkins rebuke.

Atkin would have none of it.

They tried to exert collegiate pressure on a dissenting colleague.

That was not the first time this had happened in England, or elsewhere, nor would it be the last.

So they appealed to superior authority, turning to the biggest guns in the British judiciary.

They first went to see John Simon, the Lord Chancellor.

And then Caldecote, the Lord Chief Justice.

They both wrote to Atkin, the Lord Chancellor especially, asking Atkin to remove those passages, ‘which might be wounding to colleagues’.34Lewis, at p. 139

Atkin refused.

[25].  ‘Judicial lions now mice squeaking under a chair in the Home Office’

During the eventful days after his dissent hit the press, Mr. Justice Stable wrote to Atkin,  complaining,

‘The House of Lords has reduced the stature of the judiciary with consequences that the nation will one day bitterly regret. Bacon, I think said ‘Judges were the Lions under the throne’, but the House of Lords has reduced us to mice squeaking under a chair in the Home Office’.35Mr. Justice Stable’s letter to Atkin [Ibid, Lewis, p. 152]. Stable J had delivered a dissenting opinion in R v. Home Secretary ex p Budd [1941] 2 All ER 749 at 763

[26].  Atkin is sent to Coventry

Thereafter, Atkin’s colleagues in the House of Lords ‘sent him to Coventry’: in English, this meant ostracism of the lowest and worst kind.’36op. cit. Jeffrey Lewis.

Atkin would have the last word.

[27].  The original reasons for Liversidge’s Arrest

No one in the House of Lords, including Atkin, knew that three reasons had been given to Liversidge when he had been arrested.

These incredible reasons were:-

(1).      ‘You are suspected of having been in touch with persons suspected of being enemy agents’;

(2).      ‘You are suspected of having been engaged in commercial frauds’; and

(3).      ‘You are the son of a Jewish Rabbi’.

Why the Home Secretary refused to disclose these particulars is now apparent: had he done so, the Press would have had a field day.37Pitt, in his Autobiography, ‘From Right to Left’, Lawrence and Wishart (1967)

[28].  The Fate of the Majority opinion in the UK

The world eventually discovered that Atkin’s opinion had become a mountainous rock embedded into the earth’s core, resolutely defying the inexorable tides of oppression.

In 1951, Lord Radcliffe accepted Lord Atkin’s view.38 This was in a Privy Council case from Sri Lanka, Nakkuda Ali v Jayaratne [1951] AC 66

In 1964, Lord Reid disapproved of the majority decision.39Ridge v Baldwin [1964] AC 40 at 73. He called it, ‘the very peculiar decision of this House’.

In 1980, Lord Diplock said, ‘I think the time has come to acknowledge openly that … the dissenting speech of Lord Atkin was right’.40 Inland Revenue Commissioners v Rossminster Ltd [1980] AC 952, at 1011. He said: ‘I think the time has come to acknowledge openly that the majority of this House in Liversidge v Anderson were expediently and, at that time, perhaps, excusably, wrong and the dissenting speech of Lord Atkin was right’.

It was Lord Scarman who decisively buried the majority judgement. He said:

‘The ghost of Liversidge …therefore casts no shadow upon this statute. And I would think it need no longer haunt the law… It is now beyond recall.’ 41Ibid, at  p.1025. He said: ‘The ghost of Liversidge …therefore casts no shadow upon this statute. And I would think it need no longer haunt the law. It was laid to rest by Lord Radcliffe …, and no-one in this case has sought to revive it. It is now beyond recall.’ See also The Secretary of State for Employment v. Associated Society of Locomotive Engineers and Firemen & Ors. (No. 2) [1972) I.C.R. 34; [1972] 2 All E.R. 951, 982;  and R. v. Secretary of State for the Home Department, Ex parte Khawaja [1983] 2 W.L.R. 321, 343; [1984) A.C. 74, 110.

[29].  Aftermath in Commonwealth Countries

But many Asian courts became ‘infected’ and were carried away by the tide of Liversidge’s majority opinion.

Save one, no judges here stood on the Atkinian dissent.

The Malaysian Internal Security Act 1960 (‘ISA’) allowed for detention without trial or charges.

The then premier Najib’s Government replaced the ISA with the Security Offences (Special Measures) Act 2012 (‘SOSMA’).

SOSMA still retains an ‘anti-Atkin’ flavour: it reintroduced, through the back door, what Atkin feared.42N.Surendran, ‘Activist Arrested: Government Using SOSMA Against Political Opponents’: (2 May 2014) Aliran, see here: cited by HP Lee in ‘Of lions and squeaking mice in anxious times’, Monash University Law Review (Vol 42, No 1)

Edgar Joseph Jr J, a High Court Judge, approved of Atkin’s view in 1986.43Yit Hon Kit v. Minister of Home Affairs Malaysia & Anor [1988] 2 MLJ 638

Any euphoria that the case generated was shattered by the Malaysian Supreme Court, which in another case in 1988,44Re Tan Sri Raja Khalid bin Raja Harun Inspector-General Of Police Tan Sri Raja Khalid Bin Raja Harun (1988) 1 M.L.J. 182 despite the preponderance of Commonwealth judicial opinion, unaccountably cited Lord Denning’s extra-judicial writing – as authority for the proposition that ‘Atkin’s dissent was wrong’.45Landmarks in the Law (Butterworths, 1984)

The Supreme Court deferred to the Government with these words: ‘We would prefer to adopt a realistic rather than a pedantic approach on a matter such as this.’46At p. 187

To this day, that view remains curled up in the reports, and like Australian ‘tall poppy’, needs to be lopped off.

It met an equal fate in Singapore. At first, in 1988 the Singaporean Court of Appeal dislodged Liversidge’s ‘subjective test’.47 Chng Suan Tze v Minister for Home Affairs [1988] 2 SLR(R) 525, 548–53.

Within weeks, the Singaporean Parliament re-entrenched the subjective test into its Constitution, and there it still remains.48 HP Lee in ‘Of lions and squeaking mice in anxious times’, Monash University Law Review (Vol 42, No 1), at p.6

It took almost three decades before Bangladesh would follow Atkin,49 Aruna Sen v. Government of Bangladesh (1975) 27 DLR (HCD) 122 and half a century before Australia accepted the ‘objective’ test.50 George v Rockett [1990], where the High Court ruled that: ‘[When] a statute prescribes that there must be ‘reasonable grounds’ for a state of mind – including suspicion and belief – it requires the existence of facts which are sufficient to induce that state of mind in a reasonable person’. See also the 1987 Supreme Court of the Capitol Territory in Woolworths v. Luff 77 ACTR 5; and the Supreme Court of New South Wales in Director of Public Prosecutions (CTH) v. Toro Martinez and Others CA(NSW) 517

So also Canada.51In R v Storrey, Cory J in Canadian Supreme Court

Shockingly, in 1978, the Indian Supreme Court followed accepted the ‘subjective view’.52 A.K Gopalan v. State of Madras A.K Gopalan v. State of Madras A.K Gopalan v. State of Madras AIR 1950 SC 27

The Indian Supreme Court took 66 years before it declared that Liversidge was ‘no longer good law’.53 I.R. Coelho (dead) by L.Rs. Versus State of Tamil Nadu (2007) 3 MLJ 423 (S.C.)

[30].  And because of Atkin, much of our personal freedoms were hard won

For, as Atkin had declared so long ago amid the explosion of bombs all over the world, the law protects the subject against the government, coronavirus invasion or no.

No doubt you will recall Atkin’s words:

‘The judges are no respecters of persons, and stand between the subject and any attempted encroachments on his liberty by the executive, alert to see that any coercive action is justified in law’.54p. 244, of the Report.

Will our judges rise to the challenge?

 

 

[The author expresses his gratitude to Ms.KN Geetha, Mr. JD Prabhkirat Singh, Mr. GS Saran, Miss KP Kasturi and Ms Amuthambigai Tharmarajah for their assistance.]

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