Madzimbamuto v Lardner-Burke
| Madzimbamuto v Lardner-Burke | |
|---|---|
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| Court | Judicial Committee of the Privy Council |
| Decided | 23 July 1968 |
| Citation(s) | [1969] AC 645 |
| Case history | |
| Appealed from | High Court of Southern Rhodesia |
| Court membership | |
| Judges sitting | Lord Reid, Lord Morris of Borth-y-Gest, Lord Pearce, Lord Wilberforce, Lord Pearson |
| Case opinions | |
| Decision by | Lord Reid |
Madzimbamuto v Lardner-Burke [1969] AC 645 is a decision of the Judicial Committee of the Privy Council, relevant for UK constitutional law, on the legality of the Unilateral Declaration of Independence made by Rhodesia in 1965. The case is often cited in relation to the legal status of constitutional conventions in United Kingdom constitutional law.
Facts
The British crown colony of Southern Rhodesia, which had been self-governing since 1923, declared independence from Britain in 1965. The British government considered its Unilateral Declaration of Independence (UDI) to be illegal and refused to recognize the legitimacy of the post-UDI Rhodesian government, as did most other countries. At the same time, the Governor dismissed the entire Rhodesian government, led by the Prime Minister Ian Smith, which had declared independence. Smith's government refused to recognize the validity of their dismissal, and continued to act as Rhodesia's de facto government.
In 1965, before UDI, the Rhodesian legislature had enacted a series of Emergency Power Regulations. Daniel Madzimbamuto, an African nationalist, was 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". The 1965 Regulations expired in 1966. The state of emergency was then prolonged by the Rhodesian Legislative Assembly which also made a series of new Emergency Regulations. Madzimbamuto's detention was renewed under these new Regulations.
Madzimbamuto's wife, Stella Madzimbamuto, challenged the legality of her husband's detention, on the grounds that the prolongation of the state of emergency was unlawful. The Minister of Justice, Desmond Lardner-Burke, who had made the Order for Madzimbamuto's continuing detention, was named as Respondent.
Judgment
High Court of Southern Rhodesia
In the High Court of Southern Rhodesia, Lewis J. (Goldin J. concurring) found Madzimbamuto's detention to be lawful. Though he acknowledged that Rhodesia's 1965 Constitution, made without reference to the British Parliament and proclaimed into force by the Unilateral Declaration of Independence, was not lawfully made, he nevertheless decided to recognize the legislative power of the new Rhodesian government, as doing otherwise would create a legal vacuum. Therefore, the actions of the post-1965 Smith government, including the renewal of Madzimbamuto's detention, were lawful.
The case was then appealed to the Appellate Division of the High Court. The Appellate Division (Beadle CJ, Quenet JP, Macdonald JA; Fieldsend AJA, dissenting) ruled that a fresh detention Order had to be made in order for Madzimbamuto's detention to continue under the 1966 Regulations, but found that the Smith government was the de facto government of Rhodesia by virtue of its "effective control over the state's territory", and could "lawfully do anything which its predecessor could law fully have done". However, the Appellate Division withheld de jure recognition of the Smith government. The Appellate Division also declined to recognize the validity of the 1965 Constitution, ruling instead that the 1961 Constitution still applied to the territory.
Leave to appeal to the Judicial Committee of the Privy Council was then sought, which the Appellate Division refused to grant. Nevertheless, the appeal was granted by way of special leave to appeal by Order in Council. Oral arguments were heard over ten days from May to July 1968. Sydney Kentridge and Louis Blom-Cooper appeared for the Appellant. The Respondent did not appear.
Advice of the Privy Council
The majority judgment of the Board was given by Lord Reid, who held that the 1965 Emergency Regulations and the detention order made under it were unlawful. Sovereignty over Southern Rhodesia rested with the Crown of the United Kingdom and had not been affected by the unilateral declaration of independence. Hence, the United Kingdom retained full law-making powers over Southern Rhodesia. Since the United Kingdom deprived the Southern Rhodesian legislature of its law-making powers through the Southern Rhodesia Act 1965, the Emergency Regulations made by that legislature were invalid.
Lord Reid also made obiter dictum comments about the nature of parliamentary sovereignty and constitutional conventions:
| “ | It is often said that it would be unconstitutional for the United Kingdom Parliament to do certain things, meaning that the moral, political and other reasons against doing them are so strong that most people would regard it as highly improper if Parliament did these things. But that does not mean that it is beyond the power of Parliament to do such things. If Parliament chose to do any of them the Courts could not hold the Act of Parliament invalid. | ” |
Lord Pearce gave a dissenting judgment, in which he concluded that the detention orders should be upheld under the doctrine of necessity: Although he agreed that the United Kingdom retained full sovereignty over Southern Rhodesia, acts done by the de facto government of the territory should be recognized if such acts are necessary for "the ordinary orderly running of the country".
Notes
References
- Hahlo, Herman H. (1969). "The Privy Council and the Gentle Revolution" (PDF). McGill Law Journal. 16 (1): 92–112.
- Marshall, H.H. (1968). "The Legal Effects of U. D. I. (Based on Madzimbamuto v. Lardner-Burke)". The International and Comparative Law Quarterly. 17 (4): 1022–1034. JSTOR 756683.
- Saki, Otto (10 July 2014). "Revisiting the Daniel Madzimbamuto case". The Financial Gazette (Zimbabwe). Retrieved 10 May 2018.