ACCORDING to Chief Graham-Douglas, these are the ingredients of public interest and public policy which were considered by the Majority Judges of the Supreme Court, but did not form the actual ground of their final judgment. However, if anything, these ingredients amount, in the most naked form, to undue influence, duress, breach of faith, perfidy, brazen show of force, and unmitigated assault on the judicial process. Such ingredients as these, whatever efforts may be made to hallow them with a parade of spacious learning and intellectual trickery, can never constitute public policy or public interest.
Fortunately, for Law and its inherent morality, Chief Graham-Douglas has cited four well-known cases in support of his proposition and submissions. It is most astonishing that a Senior Advocate of Nigeria, ‘and a professed Jurist should permit himself grossly and deliberately to misconceive and miscontrue the clear principles laid down in the four cases in order to clinch a proposition which is palpably outrageous to commonsense and an injurious affront to sociological jurisprudence. If the dead could read, Roscoe Pound would turn angrily in his grave and denounce Chief Graham-Douglas in no uncertain terms.
We begin a brief consideration of the cases by taking the Liversidge case. We will deal with the others in the order in which he has mentioned them. -In 1940 Jack Perlzweig alias Robert Liversidge was detained by the Secretary of State for Home Affairs on the ground that he had cause to believe Liversidge to be a person of hostile associations and that by reason thereof it is necessary to exercise control over him. Liversidge instituted an action against Anderson, the Secretary of State and Another, for false imprisonment, damages and an injunction.
In his Statement of Claim, Liversidge averred that his detention and imprisonment was unlawful. In his defence, Anderson claimed that Liversidge was detained under the Defence (General Regulations) Sections, 18B which provides that the Secretary of State can detain a person and exercise control over him, if he has reasonable cause to believe such person to be of hostile associations.
Liversidge then asked for particulars (a) of the reasonable cause of the Secretary of State’s belief, and (b) of the alleged hostile associations. The Secretary of State rejoined that it was not in the public interest that he should disclose the grounds of his belief or the particulars of Liversidge’s hostile associations.
The sole issue before the lower Courts and the House of Lords, therefore, was whether the Secretary of State was compelled to disclose the particulars for his action or not. The Court of Appeal as well as the House of Lords by majority held the view that “the production by the Secretary of State of an order of detention made by him and ex facie regular and duly authenticated, constitutes a defence to the Liversidge claim, unless Liversidge discharges the burden of establishing that the order is invalid’ The appeal was dismissed. Lord Atkin dissented from the majority view, inter alia, in the following words:
The defendant (that is the Secretary of State) has to justify with particulars and in my opinion the appellant in this case was clearly right in asking for particulars. If the respondents (that is Anderson and Another) were able to satisfy the court that they could not give particulars in the public interest the court would either not order particulars or if the objection came after the order, would not enforce it. There was no evidence of this kind at the hearing of this summons and in my opinion the appeal ought to be allowed …
It will be seen from the grounds for decision in this case, that the issue of public interest did not come up for consideration at all. The point made by Lord Atkin is that the particulars asked for must be given; or in the alternative the Secretary of State must satisfy the Court by evidence, and not by the mere production of the order of detention made by him, that it is not in the public interest to disclose the particulars asked for.
The next case is that of William Joyce, well-known during the Second Worid War as Lord Haw-Haw. Why Chief Graham-Douglas cites this case to support his thesis I do not know. The only issue here is whether William Joyce, an American citizen by virtue of his holding a British Passport which he obtained by falsely pretending to be a British subject by birth, owed allegiance to the British King and therefore could commit an act of high treason against the British King by adhering to the King’s enemies elsewhere than in the King’s Realm that is, in the German Realm.
The House of Lords (Lord Porter dissenting) held:
(1) that an alien abroad holding a British passport enjoys the protection of the crown and if he is adherent to the King’s enemies he is guilty of treason, so long as he has not renounced that protection; (2) (per Lord J owi tt, L.C, Lord Macmillian, Lord wright and Lord Simonds, Lord Porter dissenting) that the judge at the trial had given a proper direction to the jury who could not have failed to appreciate from it that it was for them to consider whether at the material time the appellant continued to enjoy the protection afforded by the passport. The point of Lord Porter’s dissent is already indicated in the Majority decision. The issue of public policy or public interest was not raised at any stage in this celebrated case.
The third case cited by Chief Graham-Douglas is that of Nakkuda AU v. Jayamtne. It is true, as Chief Graham-Douglas points out in his Paper, that Lord Atkin’s dissenting judgment in the Liversidge case came up for discussion in the Nakkuda AU case, and that his reasoning in the former case was approved by the Judicial Committee of the Privy Council in the latter case. There are two points in issue in this case.