Herman R. Hahlo*. 1. Of the great cases decided since World War II, few can surpass the Rhodesian case of Madzimbamuto v. Lardner-Burke and Another1. Under section 45 (2) in cases where the Governor is required to act on his own . even accepting the judgment in the constitutional case of Madzimbamuto v. Rhodesia that this case has been treated as a test case raising the whole question of the present constitutional position in Southern Rhodesia. It is therefore.
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Madzimbamuto v Lardner-Burke
For these reasons, therefore, the determination of the Appellate Division should be reversed, and the detention declared illegal. The argument that the American cases are all based on hardship, and are therefore distinguishable from the present case, is not really tenable.
It is conceded that they drew liberally on all types of Roman and civilian writers, and not only those in Holland. Letters Patent of September 1,provided “Whereas we are minded to provide for the establishment of responsible government, subject to certain limitations hereinafter set forth Clearly, however, both the courts below regarded themselves as still sitting under the Constitution. In so far as Grotius, Suarez, Lessius, Victoria and Pufendorf state that the laws of a usurper are to be obeyed, it is on an implied mandate from the Sovereign, who would, it was said, probably prefer that they should be obeyed, rather than that the state should be exposed to chaos and anarchy.
English constitutional law was applied throughout, reference being made particularly to Moore v. Daniel Madzimbamuto, an African nationalistwas detained under section 21 of the Regulations as a person “likely to commit acts in Rhodesia which are likely to endanger the public safety, disturb or interfere with public order or interfere with the maintenance of any essential service”.
There was no disturbance in the country. Section 3 provided that section 2 should continue in force for one year but authorised its continuance by further Orders in Council approved by each House of Parliament.
The Legislature was given wide powers but there were reservations which made it impossible to say that the Colony was a fully self-governing territory. In the next paragraph, Blackstone says that “local allegiance is such as is due from an alien, or strange born, for so long as he continues within the King’s Dominions and protection, and it ceases the instant such stranger transfers himself from this Kingdom to another.
No attempt has been made to justify the detention without trial of the appellant’s husband under any measure which is a law within the meaning of nadzimbamuto 56 D of the Constitution, and its illegality is therefore incontestable.
Recognition was sometimes only granted so far as necessary to sustain transactions which had taken place: Their Lordships however regarded the doctrine as applicable to cases involving private international law: Section 69 provides that laws for dealing with emergencies were not to be treated as inconsistent, inter alia, with section The Appellate Division accepted that they were still sitting as Her Majesty’s judges, and therefore those cases have little application to the present case.
United States ; Williams v. These cases show that the reason for this is to be found in the independent Sovereignty of the seceding states, whereas when it was a question of an unrecognised rebel government the same rule applies as in the English cases, i.
No legislative process is being carried on otherwise than by. It is not contested that the Constitution has never been lawfully abandoned or replaced. The Act places Southern Rhodesia, for the first time, in a position to provide for Southern Rhodesia citizenship, for the purposes of the Act, and “for the purposes of the Act” in the definition section s.
Acts which could legitimately be recognised include those for the preservation of public order. The court will not examine the treaty or grant under which the Crown acquired jurisdiction. Possibly the most important question arising out of the appeal is whether it is the duty of Her Majesty’s judges, who hold office under the legal Constitution ofto maintain and enforce, so far as they are able to do so, the rights of citizens under the Constitution, or whether it is their duty to transfer their allegiance to those at present exercising physical power in the Colony.
In The Trial of John Cook the court dealt with the Statute saying that it was intended to preserve the King’s Government, not to preserve anti-monarchical governments. Per Lord Pearce dissenting. Attorney-General34 where the same approach is adopted. If that determination is right he is lawfully detained. The underlying principle is not really based upon necessity, but upon hardship and inequity – the hardship and inequity which would have resulted to millions of people, who had for four years been living under the laws of the rebel governments, if no recognition had been accorded to those acts and laws necessary for maintaining the bonds of society.
Finally The Confederate Note case makes clear beyond doubt that the whole basis of these cases was the avoidance of hardship or injustice. Bruffy ; Keith v. While section of the Constitution gave the Legislature of Southern Rhodesia power to amend, add to or repeal any section of the Constitution, other than those mentioned in sectionsection reserved to Her Majesty the power to amend, add to or revoke. The majority judgment of the Board was given by Lord Reidwho held that the Emergency Regulations and the detention order made under it were unlawful.
Madzimbamuto v Lardner-Burke – Wikipedia
Kock 93 and Olivier v. Attorney-General for the Irish Free State. Turner24 Lord Hobhouse said that, though not an appeal, if the court found that a certificate had been wrongly refused they could advise Her Majesty to admit the appeal. It is hereby declared that Southern Rhodesia continues to be part of Her Majesty’s dominions, and that the Government and Parliament of the United Kingdom have responsibility and jurisdiction as heretofore for and in respect of it.
The scope of recognition granted in the American cases was very wide: The conclusion which he reached that he must decide what the law was “in the light of political realities” was wrong. At the same time, the Governor dismissed the entire Rhodesian government, led by the Prime Minister Ian Smithwhich had declared independence. The judiciary are the watchdogs of the Constitution. I do not follow it at all. Miller 33 referred to in Nyali Ltd.
As to the meaning of “aggrieved,” see also Attorney-General of the Gambia v. For these reasons the Board should declare that the Appellate Division’s determination was wrong, and the detention of the appellant’s husband illegal. So it is not enough to attempt to secede: