McGILL LAW JOURNAL
[Vol. 16
The Privy Council and the Gentle Revolution
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
in interest. Part and symptom of that war’s aftermath, Madzimba-
muto’s case raised basic issues of the nature of law and its creation
by revolutionary process. Names seldom heard outside the lecture
room flit through the arguments: Grotius and Pufendorf, Bynker-
shoek, Bacon and Hawkins, Kelsen and Olivecrona. Articles com-
menting on the case appeared before the ink on the judgments handed
down in the Court of First Instance was dry, and by now the score
is in the neighbourhood of a dozen. 2 The legal problems raised in
argument will be discussed, with emotive heat or academic detach-
ment, for years to come, until they will find permanent resting places
in the standard works on constitutional law, public international law
and jurisprudence.
The drama unfolded in three acts. Act One took place in the
General Division of the High Court of Rhodesia, Act Two in the
Appellate Division.4 For Act Three, the scene shifted to the Privy
* Director of the Institute of Comparative and Foreign Law, McGill University.
This Article will be published concurrently in the South African Law Journal.
to the references, see n. 3, 4 and 5 infra.
‘As
2 Mention may be made here to the following: A.M. Honor6, Reflections on
Revolutions, (1067), 2 Irish Jurist 268; J.M. Eckelaar, Splitting the Grundnorm,
(1967), 30 Mod. L.R. 156; Claire Palley, The Judicial Process: U.D.I. and the
Southern Rhodesian Judiciary, (1967), 30 Mod. L.R. 156; R.S. Welsh, The
Constitutional Case in Southern Rhodesia, (1,967), 83 L.Q.R. 65; Alan Wharam,
Treason in Rhodesia, (1967), 25 Camb. L.J. 189; R.W.M. Dias, The U.D.I. Case:
The Grundnorm in Travail, (1068), 26 Camb. L.J. 233; L.C. Green, Rhodesian
Independence-Legal or Illegal, (1,968), 6 Alberta L.R. 37; J.M. Eckelaar, Rhodesia:
The Abdication of Constitutionalism, (1969), 32 Mod. L.R. 19; R.H. Christie,
Practical Jurisprudence in Rhodesia, (1969), 2 Comp. & Intern. Law Journal
of Southern Africa 3; F.M. Brookfield, The Courts, Kelsen and the Rhodesian
Revolution, (1969), 10 U. of Tor. L.J. 326.
3 Judgment GD/CIV/23/66, obtainable from the Government Printer, Salisbury,
Rhodesia.
4 (1968) 2 S.A. 284 (R.A.D.). Application for leave to Appeal to the Privy
Council was refused by the Rhodesian court, (1968) 2 S.A. 457 (R.A.D.), but
was subsequently granted by the Privy Council.
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THfE PRIVY COUNCIL AND THE OENTLE R VOL-UTION
9
Council Chambers in London. 5 R. V. Ndhlovu 6 declaimed the Rhode-
sian Epilogue.
The facts in Madzimbamuto were simple. On November 11th,
1965, Mr. Smith and his Ministerial colleagues issued their Unilateral
Declaration of Independence (U.D.I.) and created a new Constitu-
tion ,for Rhodesia. On November 16th, 1965, the Parliament of the
United Kingdom passed the Southern Rhodesia Act,7 which was im-
mediately followed by the Southern Rhodesia Constitution Order,
1965,8 declaring the new Rhodesian government illegal and all its
acts, laws and decrees invalid. At the time of U.D.I., Madzimbamuto
was detained under emergency regulations, making provision for the
summary arrest or detention of any person in the public interest.
These regulations had been lawfully issued in terms of the Emergency
Powers Act, 1960, which empowered the Governor to declare by
proclamation a state of emergency, provided that no such proclana-
tion was to remain in force for more than three months, unless it
was renewed for further periods of three months at a time. The
state of emergency under which Madzimbamuto was detained came
to an end on February 4th, 1966. The Smith government prolonged
it from time to time under the 1965 Constitution and issued new
emergency regulations, under which Madzimbamuto’s detention was
continued.
The validity of Madzimbamuto’s detention was challenged by his
wife (not, be it noted, by Madzimbamuto himself) on the ground
that the Rhodesian government was an illegal government and that,
in consequence, the declaration of a state of emergency and the issue
of a detention order were invalid.
The General Division of the Rhodesian Court (Lewis and Goldin,
JJ.) held that the 1965 Constitution was not a lawful constitution
and that Mr. Smith’s government was not a lawful government,
but upheld the validity of the emergency regulations and the deten-
tion order on grounds of state necessity. As Lewis, J. put it,
The Government is the only effective Government of the Country, and
therefore on the basis of necessity and in order to avoid chaos and a vacuum
in the law, this Court should give effect to such measures of the effective
government, both legislative and administrative, as could lawfully have
been taken by the lawful government under the 1961 Constitution for the
preservation of peace and good government and the maintenance of law
and order.
5 (1968) 3 All E.R. 561.
6 (1968) 4 S.A. 515 (R.A.D.).
7 1-44 Eliz. 2, c. 76.
81965 S.I. 1952.
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The Appellate Division of the High Court, before which the
matter came on appeal, concurred with the General Division in hold-
ing that the emergency regulations issued by the new Rhodesian
government were valid, but it was along different routes that the
five judges arrived at this result.
Beadle, C.J., held that the Smith government was a fully de facto
government, though not yet ‘quite’ a government de jure, and that,
having effectively usurped the governmental powers granted Rhode-
sia under the 1961 constitution, it could lawfully do anything which
its predecessor could lawfully have done. He added the rider that
‘until its new constitution is formally established and thus becomes
the de jure constitution of the Territory, its administrative and legis-
lative acts must conform to the 1961 constitution.’ Jarvis, J.A., sub-
stantially concurred with him.
Qu~net, J.P. and Macdonald, J.A. considered that for internal
purposes the Smith government was a government de lure as well
as de facto and that, consequently, all its acts and measures were
valid.
Fieldsend, A.J.A., who subsequently resigned from the Rhode-
sian Bench on conscientious grounds, disagreed. In his view the
Rhodesian court, having been created in terms of a written constitu-
tion, had ‘no jurisdiction to recognize either as a de jure or de facto
government any government other than that constitutionally ap-
pointed under that constitution’. He declared himself, however, pre-
pared to uphold such measures as were justified by necessity.
Thus the Appellate Division, by a majority of four to one, decided
the crucial
issue, viz., whether the Rhodesian government could
effectively legislate, in favour of the Rhodesian government. On a
technical point, however, the appeal of Madzimbamuto’s wife suc-
ceeded. Unlike previous detention orders, the detention order under
which Madzimbamuto was being detained had not been made under
the pre-1965 section of the emergency regulations, but under a newly
added, wider section. The Appeal Court held that this section was
ultra vires.
The appellant’s victory was but a short-lived one. The defect
in the issue of the order was remedied and Madzimbamuto’s deten-
tion continued.
Madzimbamuto’s wife now appealed to the Privy Council 3 The
Rhodesian government, which no longer recognized the jurisdiction
of the Board, was not represented, but the Privy Council appointed
9 It will be remembered that the Rhodesian Court had refused her leave
to appeal: supra, n. 4.
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THE PRIVY COUNCIL AND THE GENTLE REVOLUTION
05
an amicus curiae. The judgment of the majority of the Board –
Lords Reid, Morris of Borth-Y-Gest, Wilberforce and Pearson –
was that by the Southern Rhodesia Constitution Order, 1965, and
the Southern Rhodesia Act, 1965, Rhodesia had been effectively de-
prived of the power to legislate for itself, and that the Government
in control was not a lawful government. It followed that both the
emergency regulations and the detention order were invalid. Lord
Pearce dissented.
Rhodesia had the last word in R. v. Ndhlovu,10 where, in reliance
on the Privy Council judgment, a number of accused persons pro-
tested the validity of a criminal indictment on the ground that all
acts of the Rhodesian government and its agents were invalid. Con-
firming the judgment of the General Division, the Appellate Division
of the Rhodesian High Court decided that the 1965 Constitution was
now the only valid constitution of Rhodesia; that the present Rhode-
sian government was Rhodesia’s only lawful government; and that
the judgment of the Privy Council was not binding on Rhodesian
courts. The transition from a de facto to a de jure government was
thus, in the Court’s view, complete.
To do justice to the arguments of learned counsel, the closely
reasoned judgments, the erudite articles of a multitude of eminent
writers, would require a book, not an article. In accordance with the
logistics of the limited objective, this article will be confined to a
critique of the Privy Council decision.
Compared with the Rhodesian judgments, the judgment that Lord
Reid delivered on behalf of the majority in the Privy Council was
short and simple. Put in a nutshell, it comes to this: undivided
sovereignty over Rhodesia vests in the Crown. The United Kingdom
Act and Order-in-Council of 1965 had full effect in the territory,
depriving the Rhodesian Legislature of the power to make laws. In
consequence, the usurping government in Rhodesia is not a lawful
government, and all its acts and decrees are invalid. Assuming the
principle stated by Grotius in De Jure Belli et Pacis 11 that the acts
10 See supra, note 6.
111.4.15:
‘We have spoken of him who possesses or has possessed the right
of governing. It remains to speak of the usurper of power, not after he has
acquired a right through long possession or contract but while the basis of
possession remains unlawful. Now while such a usurper is in possession, the
acts of government which he performs may have a binding force, arising
not from a right possessed by him, for no such right exists, but from the fact
that one to whom the sovereignty actually belongs, whether people, King, or
senate, would prefer that measures promulgated by him should meanwhile
have the Force of Law, in order to avoid the often confusion which would
result from the subversion of Laws and suppression of the Courts’.
McGILL LAW JOURNAL
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part of modern law, it cannot override the right of the Parliament
of the United Kingdom to make binding laws for Rhodesia.
Quoting Uganda v. Commissioner of Prisons 1
2 and The State V.
Dosso,13 Lord Reid briefly referred to the possibility of a new legal
order being established by revolution, but rejected it for Rhodesia
on the ground that ‘the British Government acting for the lawful
Sovereign is taking steps to regain control and it is impossible to
predict with certainty whether or not it will succeed’.14
Lord Peaxce in his dissenting judgment agreed with the majority
that the United Kingdom could legislate for Rhodesia, and that ‘the
de facto status of sovereignty cannot be conceded to a rebel govern-
ment as against the true Sovereign in the latter’s courts of law. ‘”
However, on the principle of ‘state necessity’ or ‘implied mandate’,
he considered that acts done by those actually in control might be
recognized as valid in so far as they were reasonably required for
the orderly running of the State.
As to the effect of the United Kingdom legislation of 1965, Lord
Pearce remarked: ‘(
… for the present argument it makes no difference if an Order-in-Council
expressly made acts illegal and void, so that instead of being plainly illegal
and void as contrary to the lawful Constitution and lawful Government of
Rhodesia they also become illegal and void as contrary to an Order-in-Council.
They were still subject to the principle of necessity or implied mandate
and still within the margin of tolerance laid down in the Governor’s directive.
There is no indication in the Order-in-Council that it intended to exclude
the doctrine of necessity or implied mandate by enjoining (inconsistently
with the Governor’s directive) continuing disobedience to every act or
command which had not the backing of lawful authority. Even had it
done so, I feel some doubt as to how far this is a possible conception when
over a prolonged period no steps are taken by the Sovereign himself to
do any acts of government and the result would produce a pure and con-
tinuous chaos or vacuum.
He concluded:’17
Perhaps one may emphasize, what should be obvious, that no question
as to “the merits” of the main contest between the lawful ruler and
the illegal government have any relevance whatever to the arguments
in this case. Questions of martial law do not depend on the merits of an
12 [1966] E.A. 514.
of sovereignty exercised by a usurper have obligatory force, forms
13 [1958] 2 P.S.C.R. 180; (1059), 1 Pak. L.R. 849.
14 [1068], 3 All E.R. 561 at p. 575.
15Ibid., at p. 579.
16 Ibid., at p. 587.
17 Ibid., at p. 587.
Mo. 1]
THE PRIVY COUNCIL AND THE GNTLE RVOLTiTION
9
invasion. When a state of rebellion or invasion exists the law must do
its best to cope with resulting problems that beset it.
2.
The key to an understanding of the problems raised by Madzim-
bamuto’s case lies in the realization that in adjudicating upon the
validity of the acts of a rebel government, different answers may
have to be given by a court of the break-away country, a court of
the country seceded from, and the court of a ‘neutral’, uninvolved
country. This is implied in several of the judgments in Madzimba-
muto and clearly set out in No6l-Henry’s Les Gouvernements de Fait
devant le Juge.’8
The first point the judge in the country seceded from or a neutral
country has to consider is whether his government has recognised
the usurper as the sovereign of the break-away country. If the an-
swer is in the affirmative, he has to accept him as such and treat
his acts and decrees as valid. If it is in the negative, he is precluded
from recognizing the new authorities as the legal government of
the rebellious territory. On the question whether in the latter case
all the acts and decrees of the usurper have to be treated as absolute
nullities, American and English law differ.
In America, the problem cropped up after the Civil War, when
the courts of the United States found themselves called upon to
pronounce upon the validity of acts and decrees that had emanated
from the secessionist governments during the war. In a long line
of decisions, the Supreme Court held that, though the rebel govern-
ments had to be treated by the courts as unlawful, acts done by them
had nevertheless to be recognized as valid in so far as they were
reasonably required for the ordinary orderly running of the State
and were not done with ‘hostile intent’, in promotion of the rebellion.
Expressive of the ‘civil-war’ line of eases are Texas v. White, 19
Sprott v. U.S.,20 Williams v. Bruffy 2′ and Baldy v. Hunter.22
In Williams v. Bruffy,23 Mr. Justice Field put the matter thus:
The same general form of government, the same general laws for the
administration of justice and the protection of private rights, which had
18 Doctoral Thesis, Paris, 1927. See also L.C. Green, (1958), 6 Alberta L.R.
37 at p. 54.
19 (1868), 19 L. Ed. 227.
20 (1874), 22 L. Ed. 371.
21 (1877), 24 L. Ed. 716.
22 171 U.S. 388
(1897), 18 S. Ct. 89; 48 L. Ed. 208. See also Horn v. Lockhart
(1873), 21 L. Ed. 657.
23 (1877), 24 L. Ed. 716 at p. 720.
McGILL LAW JOURNAL
[Vol. 16
existed in the State [Virginia] prior to the rebellion, remained during its
continuance and afterwards. As far as the Acts of the States do not
impair or tend to impair the supremacy of the national authority, or the
just rights of the citizens under the Constitution, they are, in general,
to be treated as valid and binding.
And in Baldy v. Hunter,24 the law was summed up by Mr. Justice
Harlan as follows:
From these cases it may be deduced…
That the transactions between persons actually residing within the
territory dominated by the government of the Confederate States were
not invalid for the reason only that they occurred under the sanction of
the laws of that government or of any local government recognizing its
authority;
That, within such territory, the preservation of order, the maintenance
of police regulations, the prosecution of crimes, the protection of property,
the enforcement of contracts, the celebration of marriages, the settlement
of estates, the transfer and descent of property, and similar or kindred
subjects, were, during the war, under the control of the local governments
constituting the so-called Confederate States;
That what occurred or was done in respect of such matters under the
authority of the laws of these local de facto governments should not be
disregarded or held invalid merely because those governments were organized
in hostility to the Union established by the national Constitution; this,
because the existence of war between the United States and the Confederate
States did not relieve those who were within the insurrectionary lines from
the necessity of civil obedience nor destroy the bonds of society nor do away
with civil government or the regular administration of the laws, and because
transactions in the ordinary course of civil society as organized within
the enemy’s territory, although they may have indirectly or remotely
promoted the ends of the de facto or unlawful government organized to
effect a dissolution of the Union, were without blame “except when proved
to have been entered into with actual intent to further invasion or insur-
rection”; and
That judicial and legislative acts in the respective states comprising
the so-called Confederate States should be respected by the courts if they
were not “hostile in their purpose” or mode of enforcement to the authority
of the national government and did not impair the rights of citizens under
the Constitution.
(the italics are Mr. Justice Harlan’s).
The same approach was adopted, in a somewhat different con-
text, when in the 1920’s, American courts had to pronounce upon
the validity of acts of the Soviet Government, which at that time
was not yet recognized by the State Department. In Sokoloff V.
National City Bank,2 5 the opinion of the Court was summarized in
the headnote as follows:
2-143 L. Ed. 208, at p. 213.
25 239 N.Y. 158 (1924); 145 N.E. 917.
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THE PRIVY COUNCIL AND THE GENTLE REVOLUTION
99
if violence
[w]hile unrecognized government may be viewed juridically as no govern-
ment, if power withholding recognition so chooses, government de facto,
though formally unrecognized because deemed unworthy of place in society
of nations, may possibly gain quasi governmental validity for its acts
to fundamental principles of justice or public
or decrees,
policy might otherwise be done.
Elaborating on this theme, Oardozo, J. said :20
Juridically, a government that is unrecognized may be viewed as no
government at all, if the power withholding recognition chooses thus to
view it. In practice, however, since juridical conceptions are seldom, if
ever, carried to the limit of their logic, the equivalence is not absolute,
but is subject to self-imposed limitations of common sense and fairness,
as we learned in litigations following our Civil War. In those litigations
acts or decrees of the rebellious governments, which, of course, had not
been recognized as governments de facto, were held to be nullities when
they worked injustice to citizens of the Union, or were in conflict with
its public policy. … On the other hand, acts or decrees that were just
in operation and consistent with public policy were sustained not infrequently
to the same extent as if the governments were lawful. … These analogies
suggest the thought that, subject to like restrictions, effect may at times
be due to the ordinances of foreign governments which, though formally
unrecognized, have notoriously an existence as governments do facto.
Putting the same idea more briefly, Mr. Justitce Lehmann of
the New York Court of Appeal said in Russian Reinsurance Co. v.
Stoddard : 27
[The Soviet Government’s] rule may be without lawful foundation; but,
lawful or unlawful, its existence is a fact, and that fact cannot be destroyed
by juridical concepts.
Again, in Upright V. Mercury Business Machines Co.,28 Mr. Justice
Breitel stated:
… only limited effect is given to the fact that the political arm has not
recognized a foreign government. Realistically, the courts apprehend that
political nonrecognition may serve oniy narrow purposes. While the judicial
arm obligates itself to follow the suggestions of the political arm in
it will not exaggerate or
effecting such narrow purposes, nevertheless,
compound the consequences required by such narrow purposes in construing
rights and obligations affected by the acts of unrecognized governments….
He continued:
It is a false notion, if it prevail anywhere, that an unrecognized government
is always an evil thing and all that occurs within its governmental purview
are always evil works. There are many things which may occur within
the purview of an unrecognized government which are not evil and which
will be given customary legal significance in the courts of nations which
do not recognize the prevailing do facto government. In a time in which
26 145 N.E. 9i0T at pp. 9&9.
27 240 N.Y. 149 (1025) at p. (L59; 147 N.E. 703 at p. 705.
28 210 N.Y. Supp. 41q (196l) at p. 420, and p. 422.
McGILL LAW JOURNAL
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governments with established control over
territories may be denied
recognition for many reasons, it does not mean that the denizens of such
territories or the corporate creatures of such powers do not have the
juridical capacity to trade, transfer title, or collect the price for the
merchandise they sell to outsiders, even in the courts of nonrecognizing
nations….
The American approach is also that of the Continental courts. In
two Dutch cases, decided by the Hooge Raad in 184029 and 1847,30 the
validity of measures of internal government enacted by those in
de facto control of the Province of Limburg during the secession
of that Province from the Kingdom of the Netherlands during the
1830-39 revolt came under review. The Hooge Raad held that in
accordance with principles accepted by ‘all civilized nations’, the
measures of the usurper, except those specially dealt with by the
legal government after the restoration, should remain in force ‘ex
utilitate publica’. The same attitude, it would seem, was taken by
the Swiss Bundesgericht in 1905 in Zieglersche Tonwarenfabrik ca.
Kanton Schaffhausen.31
In Western Germany, there have been numerous cases since the
last war, in which effect was given to East German decrees and
judgments, despite the fact that the German People’s Republic
remains unrecognized. And when in the Rhodesian banknote case
the British Government applied to the German courts for the seizure
of banknotes printed by a German firm for the ‘illegal’ Rhodesian
Reserve bank in Salisbury, the Oberlandesgericht in Frankfurt ap-
parently adopted the same approach as the High Court in Salisbury,
holding, in the words of Professor L.C. Green,32 that effect had to
be given ‘to those measures which could be construed as necessary
for normal administration by the authority able to carry them out’.
In English law, the question is, according to an obiter statement
of Lord Wilberforce in Carl Zeiss Stiftung v. Rayner and Keeler
(No. 2), 3
3 still an open one. After stating that:
In the United States some glimmerings can be found of the idea that
non-recognition cannot be pressed to its ultimate logical limit, and that
where private rights, or acts of everyday occurrence, or perfunctory acts
of administration are concerned (the scope of these exceptions has never
been precisely defined)
the courts may, in the interests of justice and
common sense, where no consideration of public policy to the contrary
29 Weekblad van het Recht, 15th October, 1840.
30 Weekblad van het Recht, 28th August, 1847.
3l Zeitschrift filr Vdlkerrecht und Bunderstaatsrecht, (1,9)7)
1 at p. 728.
32 (1068), 6 Alberta L.R. 37 at p. 65. As I was unable to procure a copy of
the German judgment I relied here largely on Professor Green’s article.
‘3 [1967] A.C. 853 at p. 954.
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THE PRIVY COUNCIL AND THE GENTLE REVOLUTION
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has to prevail, give recognition to the actual facts or realities found to
exist in the territory in question,
he went on to say:
No trace of any such doctrine is yet to be found in English law, but equally,
in my opinion, there is nothing in those English decisions, in which recognition
has been refused to particular acts of non-recognised governments, which
would prevent its acceptance or which prescribes the absolute and total
individuality of all laws and acts flowing from unrecognised governments.
However, what cases there are, from Ogden v. Folliot34 to Ak-
sionairnoye Obschestvo A.M. Luther v. James Sagor & Co. 3 5 (for
obvious reasons generally referred to more briefly as Luther V. Sa-
gor) and Banco de Bilbao v. Sancha,36 though not conclusive, lean
towards total non-recognition. The Privy Council decision in Mad-
zimbamuto (in which, incidentally, Lord Wilberforce concurred with
the majority) does not settle the issue, for in that case there was
not only refusal of recognition, but legislation expressly annihilating
the Rhodesian government and all its works. However, the impres-
sion one gains (perhaps wrongly) from reading Lord Reid’s judg-
ment is that even if there had been no such legislation, but mere
non-recognition, the Privy Council would not have recognized the
validity of acts of the Rhodesian government even on a selective
basis.3 7
Though there is no basic difference betwcen the rules by which
the judges in the country rebelled against and those in a neutral
country guide themselves, there is an important practical difference:
whereas government and courts in a neutral country are emotion-
ally uninvolved, the government and courts in the country seceded
from will tend to regard the very existence of the new government
as an affront to their country and its legal order. In the result,
the government of the mother country will be inclined to deny the
existence of the rebel government long after other countries have
recognized it, and her courts will be less generous in admitting the
validity of its acts than those of a non-involved state.
3.
Entirely different considerations apply when a court within the
break-away country is seized of the matter. Provided the revolution-
ary government is in fact in power, the judges, whether appointed
by the old or the new government, have no choice but to apply its
34 (1,790) 3 T.R. 7;
35 (19021) 1 K.B. 456.
36 (1038) 2 K.B. 1,76 (C.C.A.).
37 See the statement by Lord Reid that is quoted infra, at p. 108 (note 61).
100 E.R. 825.
McGILL LAW JOURNAL
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decrees, not because they favour the new order or are afraid for
their jobs, but because as judges they have to apply the law that
is, and not the law that was and, perhaps in their own view, ought
to be restored. There is, of course, nothing to prevent a judge who
is out of sympathy with the new regime to resign from office, as
Mr. Justice Fieldsend in Rhodesia eventually did,38 but as long as
he carries on, it is no part of his task to assist in dislodging the
revolutionary government from power, just as it is no part of his
task to assist it in, maintaining itself in power. His task as a judge
is to decide cases, ‘without fear, favour or affection’, according to
the law of the land.
By giving effect to the decrees of the new Rhodesian Government,
the judges of Rhodesia did not, therefore, support an illegal regime
or become false to their oath to the Queen. They merely, as they
were in duty bound, applied ‘the law’. If out of loyalty to Britain,
they would have ignored the decrees of the new government, they
would have based their decision on a legal order that no longer
existed. Judicial discretion does not embrace the power to decide
on facts known by the judge to be untrue.
The matter was clearly put by Beadle, C.J., when he said in
his judgment in the Appellate Division: 39
It
:.. Judges do not “enforce” the law; they merely “declare” it. Enforcement
is a matter for the administration. In this regard the remarks of Chase,
C.J., in Shortridge V. Mason40
(U.S. Circuit Court, North Carolina, date
not available) are in point. At p. 97 of this report he is reported as
saying: “Courts have no policy. They can only declare the law.” …
is
a wrong conception, therefore, to imagine that the judges, by “enforcing”
or not “enforcing” a particular constitution, can play a part in the resolution
of the struggle for political power which occurs in the time of revolution.
“Law enforcement” is not a judicial function, and the courts should not
involve themselves in the political struggle for power; much less should
the political predilections of the individual judge be a decisive factor in
determining the judgment of the court.
He continued:
It seems to me that at any one time in any one place there can only be
one correct law. That law cannot vary with the political views of the
it. This, of course, is by no means the
individual judge who “declares”
same thing as saying that the judge, having declared the law as he finds
it to be, or even before so declaring, must necessarily remain in office
and apply that law. Here his personal views may play a part, because in
certain circumstances the judge may decide that rather than continue as
38 M r. Justice Young followed him in resigning, after the Appellate Division
had refused to give effect to the decision of the Privy Council.
S9 (1968) 2 S.A. 284 at pp. 326-7.
401 Abb. U.S. 58; 5 Amer. Law Rev. 95; 1 Amer. Law T. Rep. U.S. Cts. 35.
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THE PRIVY COUNCIL AND THE GENTLE REVOLUTION
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a judge and apply such law he will go. So long, however, as he continues
to sit as a judge he must declare the law as it “is” and not as it “was”,
or as what he thinks it “ought” to be.
The point that, as far as the judge in the territory in secession
is concerned, all acts of the revolutionary government are valid, is
made with admirable clarity by Noil-Henry in his work on ‘Les
Gouvernements de Fait Devant le Juge’. Before he deals with the
approach of the ‘Juge Interne’ (i.e. the judge of the country seceded
from) and the ‘Juge Tiers’ (i.e. the judge of a, neutrall country),
he considers briefly the position in the territory controlled by the
new government. Here, he sees no problem:
Pendant que le gouvernement de fait est au pouvoir, aucune difficult6 ne
se presente. 1 est g6ndralement ob~i par les organes de l’Etat: les fonc-
tionnaires ex6cutent ses ordres, les tribunaux rendent la justice en son
nom et appliquent les lois qu’il 6dicte.. 41
It
is only after the de Jure government has been restored to
power (as was the case in the Texas v. White line of cases) that the
validity of the legislative and a’dministrative acts of the de facto
government can be questioned by a domestic court.
While there is, for obvious reasons, not much case law on the
The State v. Dosso,42 Uganda V.
point, such cases as there are –
Commissioner of Police,43 the two Dutch cases of 1840 and 1847 44-
support the view that as long as the usurper is in power his word
is law. The American cases, from Texas v. White, are, strictly speak-
ing, not in point, for they deal with the validity of acts of a seces-
sionist government as seen through the eyes of the courts of the
lawful sovereign, post facto, after the revolution has been put down.
However, there are strong dicta supporting the view that courts
functioning under a rebel government have no choice but to recog-
nize its acts and decrees. Thus, Chief Justice Taney in Luther v.
Borden 45 remarked that:
The acceptance of the judicial office is a recognition of the authority of
the government from which it
is derived. And if the authority of that
government is annulled and overthrown, the power of its courts and other
officers is annulled with it. And if a State court should enter upon the
inquiry proposed in this case, and should come to the conclusion that the
government under which it acted has been put aside and displaced by an
opposing government, it would cease to be a court and be incapable of
pronouncing a judicial decision upon the question it undertook to try. If it
fait devant le jugs, No8l Henry, l027, Paris, at p. 5.
41 Les Gouvernements d
42 See supra, note 13.
43See supra, note 1.2.
44 See supra, notes 29, 30.
45 (1847-1850), 12 L. Ed. 591 at p. 598.
McGILL LAW JOURNAL
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decides at all as a Court, it necessarily affirms the existence and authority
of the government under which it was exercising judicial power.
Again, in Thorington v. Smith,46 Mr. Chief Justice Chase re-
marked:
There are several degrees of what is called de facto government. Such
a government, in its highest degree, assumes a character very closely
resembling that of a lawful government. This is when the usurping govern-
ment expels the regular authorities from
their customary seats and
functions, and establishes itself in their place, and so becomes the actual
government of a country. The distinguishing characteristic of such a
government is that adherents to it in war against the government de jure
do not incur the penalties of treason; and under certain limitations,
obligations, assumed by it in behalf of the country, or otherwise, will, in
general, be respected by the government de jure when restored.
No one seems to have been able to find a reported case in which
a court of one of the rebellious Southern States pronounced upon
the validity of governmental acts while the civil war was in progress,
but the reason is not difficult to guess. A counsel who would have
raised the point, a judge who would have considered it, would have
taken their lives in their hands. The reason why the matter could
be calmly debated in a Rhodesian court was that the Rhodesian
revolution was, as revolutions go, a gentle one. Always the most
loyal of British subjects, Rhodesians were half-hearted revolution-
aries, who tried valiantly to achieve independence without severing
their ties with Britain and its institutions.
If it be asked whence the new law derives its force, the answer
in what Jellinek in his Allgemeine Staatslehre 47 called the
the power of a factual situation
lies
‘normative Kraft des faktischen” –
to create new law.
In der ilberwiegend grossen Zahl der Fille bernht die Bildung neuer
Staatsgewalten auf Vorgdngen, die jede M~glichkeit rechtlicher Qualifikation
-von vornherein aussehliessen.48
And again:
Die Ausiibung der Staatsgewalt durck den Usurpator shcafft so!ort einen
neuen Rechtszustand, weil hier Keine Instanz vorhanden ist, die die
Tatsacke der Usurpation r’echtlich ungeschehen machen K6nnte.49
46 (1868), 19 L. Ed. 361 at p. 363.
47 (1060) 3rd. ed., pp. 337 et seq.
4sIbid., at p. 42. ‘In the overwhelming number of cases the formation of new
state powers depends upon events which from the beginning exclude any
possibility of legal justification’
(My translation).
49 Ibid., at p. 340. ‘The exercise of the power of the State through the usurper
creates at once a new legal order, since there is no court which could legally
under the fact of usurpation’
(My translation).
No. 1]
THE PRIVY COUNCIL AND THE GENTLE REVOLUTION
105
4.
Lord Reid in the majority judgment considered that the concepts
of de facto and de lure governments, on which so much reliance was
placed in the Rhodesian courts, ‘are conceptions of international law
and in their Lordships’ view they are quite inappropriate in dealing
with the legal position of a usurper within the territory of which
he has acquired control’. 50 He also said that ‘their Lordships are
satisfied that it [the Statute of 1495] cannot be held to enact a
general rule that a usurping government in control must be re-
garded as a lawful Government’. 51
With all respect to a great judge of one of the world’s great
courts, these statements obscure rather than enlighten. The terms
‘de facto’ and de jure’ governments are employed in two different
contexts. In international law, they denote stages in the recognition
of a new government by the governments of other countries, and
this may well be the meaning which comes first to the lawyer’s
mind today. But they also are employed in a second meaning, which
is really the earlier and primary one, where they denote just what
they say: a government that rules in fact and a government that
is legally entitled to rule. When the term ‘de facto government’ is
used in this sense, it is purely a statement of fact, signifying that
within the territory in question a particular person, body or party
exercises, to borrow from Lord Atkin’s statement in The Arantzazu
Mendi,52 ‘all the functions of a sovereign government, in maintain-
ing law and order, instituting and maintaining courts of justice,
adopting or imposing laws regulating the relations of the inhabit-
ants of the territory to one another and to the Government’. To
speak of a government as one de lure, on the other hand, is to
make a value judgment. It signifies that in the eyes of the person
making this statement, the government is entitled to govern. The
term de lure government is normally used of a government that
governs in fact and is entitled to do so. Occasionally, the term is
applied to a government that does not in fact rule but is in law
entitled to do so, but this is a misuse of the term, for such a gov-
ernment is, at the moment, a non-government, though it may have
been a government in the past and may become one again in the
future. Conversely, an illegal government is not a non-government,
but a government de facto which, though legally not entitled to do
so, exercises for the time being executive power.
50 (1968) 3 All E.R. 56LI at p. 573.
51 Ibid., at p. 575.
52 [1939] A.C. 256 at pp. 264-5.
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There is a large measure of agreement on this point. ‘Any
established government’, says Austin,53 ‘be it deemed lawful or be
it deemed unlawful, is a government de facto. …
In strictness, a
so called government de jure but not de facto is not a government.
It merely is that which was a government once, and which (accord-
ing to the speaker) ought to be a government still’.
(changing
Austin adds that:
In respect of positive law, a sovereign political government which is
established or present, is neither lawful nor unlawful, neither rightful
nor wrongful, neither just nor unjust. Or
the expression)
a sovereign political govermnent which is established or present, is neither
legal nor illegal.
Similarly, Montague Bernard 54 remarks:
A do jure government is one which, in the opinion of the person using
the phrase, ought to possess the powers of sovereignty, though at the
time it may be deprived of them. A de facto Government is one which
is really in possession of them, although the possession may be wrongful
or precarious.
Paton, in commenting on Austin’s definition of laiw, says: 5
[I]n emphasizing that positive law is such only if it is in effective operation
in a particular community Austin makes an important point.
Earlier, he said:56
The validity of a legal system as a whole depends on the fact that it is
accepted by, and therefore capable of enforcement over, a given community.
Kelsen states 57 that:
A legal order is regarded as valid, if its norms are by and large effective
(that is, actually applied and obeyed).
53 Jurisprudencs, Austin, 1M.1; Vol. I, p. 327.
54 Neutrality of Great Britain during the American Civil War, London, 1870,
p. 1,08. See also Hale, Pleas of the Crown (1682), pp. 58-61, 101, 103; further,
Hawkins, Pleas of the Grown (1-716-1720), Vol. 1, p. 10: ‘As to the third point,
viz., who is a king within this act [i.e. the Treason Act]? It seems agreed, that
every king for the time being in actual possession of the crown, is a king within
the meaning of this statute, for these is a necessity that the realm should have
a King, by whom and in whose name the laws shall be administered; and the
King in possession being the only person who either doth or can administer
those laws, must be the only person who has a right to that obedience which is
due to him who administers those laws; and since by virtue thereof he secures
to us the safety of our lives, liberties, and properties, and all other advantages
of government, he may justly claim returns of duty, allegiance, and subjection.’
55 Jurisprudence, Paton, 104, 3rd., p. 77.
56 Ibid., at p. 77.
57 Pure Theory of Law, 1067, at p. 242. Similarly, Jellinck, op. cit., at p. 360:
‘Alles Recht ist peaktischer Natur und muss sick irgendwie im Leben bewthren
und durehsezen K6nnen’.
No. 1]
THE PRIVY COUNCIL AND THE GENTLE REVOLUTION
107
It is clear that since U.D.I., the present Rhodesian government
has effectively exercised governmental powers in Rhodesia, without
a rival making even a pretence of governing. Equally clearly, ever
since U.D.I., the British Government has been a ‘non-government’
in Rhodesia, incompetent ‘to redress grievances, to afford protection,
and, generally, to execute the laws’. 58 The shopkeeper in Salisbury
who has a burglary, the farmer in the country districts who is
attacked by robbers, receives protection from the Smith govern-
ment –
he would look in vain for it to Britain.
The mere fact that the British government is trying to regain
control and continues to claim from a distance of 5,000 miles that
sovereignty over Rhodesia vests in Great Britain, -amounts to no
more than an asseveration that Britain is de jure entitled to be
restored as the ruler of Rhodesia. It cannot alter the fact that,
whatever the future may hold, for the time being Britain’s writ
no longer runs in that country. Nor can the so-called ‘sanctions-war’
be equated to a struggle for power within the country. Economic
sanctions
(normally directed against a nation, e.g. Italy in the
Abyssinian War) are intended to persuade a government to change
voluntarily its course. They amount to an implied recognition that
it is de facto in power.
Nor does it detract from the position of the Rhodesian govern-
ment as a de facto government, that it is not recognized as such,
either by Britain or any other country. Ideally, of course, recogni-
tion should follow fact. As Berber puts it in his work on Public
International Law: 59
It is of the essence of the recognition of a government, which becomes
acute only if power is illegally acquired, that it is not the question of
legality, but of the effectiveness of the governmental power that must
be tested as a prerequisite of recognition; i.e., the (new) government, in
order to qualify for recognition, must be able to undertake the factual control
of the apparatus of government, and to exercise its activities without
substantial resistance;
the absence of resistance need not rest on free
consent; it is sufficient in public international law, if the people submit
de facto to the new government, whether happily, indifferently or grum-
blingly, voluntarily, or out of fear.
However, in modern practice recognition of a new foreign or
rebel government even as a de facto government has become a po-
litical act, granted or refused on grounds that have nothing to
do with its existence or stability. It may well happen, therefore,
5s Respublica v. Chapman (178-1), 1 L. Ed., at p. 35, per Chief Justice M’Klean.
59 Berger, Public International Law, (1960) Vol. 1, at p. 235.
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as was the case in Rhodesia, that a government that de facto exists
is yet not recognised as such by other nations! 0
It follows that, whatever its position in international law may
be, the present Rhodesian government is, for domestic purposes, the
only government in Rhodesia whose commands bind citizens and
courts alike. A non-recognised de facto government is not a non-
government.
5.
The problems with which the Privy Council found itself faced
in Madzimbamuto’s case were largely caused by the gap between
fact and fiction. Under the United Kingdom legislation of 1965, the
British government was the ruler of Rhodesia, the Rhodesian gov-
ernment a non-entity. In fact, the Rhodesian government was the
effective ruler in Rhodesia, while the British government was a
‘non-government’. The way in which the British government blew
hot and cold did not alleviate the difficulties. On one side, she
promoted legislation which, by purporting to eliminate the only
effective government in Rhodesia, was calculated to produce chaos
and confusion. On the other side, she called upon the judiciary,
armed services, police, public service and man-in-the-street to main-
tain law and order in the country and to carry on with their normal
tasks, in order to avoid chaos and confusion.
The majority judges, while of course well aware of the dilemma,
considered themselves bound by the letter of the law.
Said Lord Reid:01
Her Majesty’s Judges have been put in an extremely difficult position. But
the fact that the judges among others have been put in a very difficult
position cannot justify disregard of legislation passed or authorised by
the United Kingdom Parliament, by the introduction of a doctrine of
necessity which in their Lordships’ judgment cannot be reconciled with
the terms of the Order in Council. It is for Parliament and Parliament
alone to determine whether the maintenance of law and order would
justify giving effect to laws made by the usurping Government, to such
extent as may be necessary for that purpose.
Lord Pearce agreed with the majority judges that the acts
of a de facto government are not per se valid but accepted the prin-
ciple laid down in the American cases that ‘acts done by those
60 See the Tinoco Arbitration, where Chief Justice Chase remarked that non-
recognition of a government does not mean that it cannot be a do facto govern-
ment: Briggs, Law of Nations, 2nd. ed., at p. 202.
61 (1968) 3 All E.R. 561 at p. 578.
No. 1]
THt
iRdVY COUNCIL AND THE GENTLE kEVOLT’ION
109
actually in control without lawful validity may be recognised as
valid or acted upon by the Courts, with certain limitation ..
62
Lord Pearce found the basis for this doctrine in ‘state necessity’,
as rationalized in Grotius’ civilized fiction (which he calls ‘sound
common sense’) that the humane ruler would rather have his erring
children obey the usurper than expose them to anarchy. 63 That the
British Government, while purporting to dismiss the Rhodesian
ministers and legislature, had done nothing effective
to fill the
vacuum reinforced him in his views.
It is clear that from a strictly logical point of view, the majority
judgment is unassailable. ‘The Queen as the true sovereign of Rho-
desia has dismissed the Smith government from office. The British
legislature has passed legislation declaring any law made, business
transacted, step taken or function exercised by any person not
authorized by the Queen to be void and of no effect. Ergo: all
decrees, laws and administrative acts issued or executed by the
present Rhodesian government are invalid.’ It is a perfect syllogism.
But logic, taken to extremes, is a dangerous guide. In practice,
as Cardozo, J. pointed out in Sokoloff’s case, 64 ‘juridical conceptions
are seldom, if ever, carried to the limits of their logic’. Assuming
the 1965 legislation amounted to no more than non-recognition spell-
ed out at length, this was surely an opportunity for accepting, as
Lord Pearce did, the American (and Continental) doctrine that an
unrecognized government may still be a de facto government, and
that, if justice is to be done, some of its acts ought to be recognized
even though the government is not. It
is clear from Lord Reid’s
judgment that, somewhat inconsistently with their rigidly positivist
approach to the 1965 legislation, the majority judges would have
been prepared to recognize the Rhodesian government as a de jure
government, had they been convinced of the efficacy of the change. 65
Why then boggle at the recognition of its necessary acts as a govern-
ment de facto ?
Conceded, it is an elementary principle of English law that there
are no limits to the legislature’s powers, and that, though it cannot
change a man into a woman, it can provide that for all or specified
purposes a man shall be treated in law as if he were a woman.
Similarly, there can be no doubt that while the legislature cannot
transform an existing government into a non-existing one, it can
62 Ibid., at p. 579.
03 See supra, note 11.
64 145 N.E. 917 at pp. 918-9. See supra at p. 98.
65 [1968J 3 All E.R. 561 at pp. 574-5.
McGILL LAW JOURNAL
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effectively provide that it shall be treated in law as if it did not
exist. However, a legislative fiction has to be narrowly construed,
and the more so the further it is removed from fact.0 6 Even if one
assumes that the U.K. legislation of 1965 amounted to more than
an express assertion of non-recognition, there was, as Lord Pearce
points out,67 still no need to interpret it so widely as to exclude the
operation of the principle of state necessity.
There is, however, an even more basic doubt about the approach
of the Privy Council. The Board assumed, without querying it, that
United Kingdom law had to be applied or, rather, that the law of
the United Kingdom was aso at all relevant times the law of Rho-
desia, and did not distinguish between cases, such as Texas v. White, 8
in which a court of a de jure government pronounces upon the va-
lidity of acts of a rebel government after its defeat, and cases, such
as The State v. Dosso,6 in which a domestic court functioning within
the territory in secession deals with the same issue. If it be true
that as long as he is in power, the usurper’s edicts are binding on
the courts under his de facto control (and all the authorities point
that way),70 it may well be that a British court sitting in Britain
would have to find acts of the present Rhodesian government in-
valid, while a Rhodesian court, sitting in Rhodesia, would have to
find them valid. Surely, the question was not whether the judgment
in Madzimbamuto would have been correct, had it been rendered by
an English or Scottish court functioning under the umbrella of
the Crown, but whether it was correct coming from a court in Rho-
desia. It has always been considered that ‘the Judicial Committee
of the Privy Council, when deciding an appeal for an overseas terri-
tory, is technically hearing an appeal as a foreign court’.71
Assuming, however, it is not correct that the edicts of the usurper
are law within the land under his control, can there be any doubt
that the validity of his acts has generally to be upheld, if on no
other ground, on the ground of state necessity or implied mandate?
One could well imagine that a Rhodesian court might have declared
one or other measure or decree of the present government (including
GO Zur Lehne von den Filktionen by Dr. Franz Bernh~ft in Aus Rdmischen und
Berger Lichen Recht, festschrift fir Ernst Immanuel Bekker, 1907, 239 at pp.
242-6.
67 [1968], 3 All E.R. 561, at p. 587. See supra at p. 96.
68 See supra, note 19.
69 See supra, note 1S.
7 0 See supra, at pp. 101-404.
71.Schmitthoff, ‘England’ in Die Anwendung Ausldndischen Rechts im Inter-
nationalen Privatrecht, 19.68, at p. 90.
No. 1]
THE PRIVY COUNCIL AND THE GENTLE REVOLUTION
111
the one under review) invalid. No court in the world, in equal cir-
cumstances, has ever given, or will ever give, a ruling to the effect
that each and every act of the usurper is a ‘non-act’, thus creating
the conditions for legal chaos (in practice, of course, a ruling of
this kind would simply be ignored by the usurper). Yet, this would
be the result if the decision of the Privy Council were acted on in
Rhodesia. How, then, can it be said that the Rhodesian courts erred
in upholding the general validity of the acts of the Rhodesian govern-
ment which however established, was still the government for the
time being. And it is certainly significant that Mr. Justice Field-
send, who dissented from his brother judges in the Rhodesian Ap-
pellate Division in finding the new government and constitution
illegal, found himself nevertheless impelled to save the emergency
regulations from drowning by placing them on the plank of state
necessity. With all his obvious dislike for the new order, he found
the ‘normative force of the factual’ clearly too strong for him.
is hardly intellectually satisfactory’, says D.W. Greig,
‘to
reach a conclusion which amounts to a denial of the existence of a
whole legal system.’ 72 Right or wrong, the Privy Council handed
down s judgment, which was meaningless in terms of realities. Even
now, it is difficult to imagine that a court in the United Kingdom
would refuse to recognise a Rhodesian divorce, because it was granted
by a judge appointed by the Rhodesian government without the con-
currence of the Crown; or to give effect to the liquidation of an
estate in Rhodesia, because the Master of the High Court of Rhodesia,
was invalidly appointed. The probabilities are that, should Britain
be restored to power in Rhodesia, one of her first acts would be to
pass a statute expressly validating almost all the laws and decrees
of the Smith regime.
‘It
6.
In conclusion, two odd points about Madzimbmuto’s case are
worth mentioning. First, strictly speaking, the appellant had no
locus st ndi in the matter. Madzimbamuto himself, who had ample
opportunity of doing so, did not apply for his own release or even
join in the proceedings. Seeing that he was neither minor nor lunatic,
what title had his wife to bring the application on his behalf?
72 (11867) 83 L.Q.R. 96 at p. 145. Grieg suggests that ‘the simplest solution
would be for the English courts to allow the appropriate foreign law to be proved
as a fact in the normal way.’ R. Ritcher (g968), 6 Melbourne U.L.R. 448 at p.
450, too, is critical of the rule that all the acts of unrecognized governments are
to be considered of no effect.
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However, as Lord Reid said in his judgment, 73 no objection was
taken at any stage by the respondents to the appellant’s title to
raise the proceedings.
Secondly, there was, strictly speaking, no appealable issue, for
the Rhodesian Appeal Court upheld the appellant’s appeal against
the dismissal of her application and awarded her costs. True, the
Rhodesian Appeal Court held that, though the detention order made
in this case was invalid, the Rhodesian government could generally
validly legislate, but since when is it possible for the winning party
to appeal against a judgment because he is not satisfied with the
reasons on which the court decides in his favour? The Privy Council
had apparently no difficulty in getting over this point. Lord Reid
said:
74
But the appellant’s success was short lived. Immediately a new order was
made under the former section and in fact the appellant’s husband was
never released from custody. In their Lordships’ view it is implicit in the
judgment of the Appellate Division in this case that the section of the
emergency regulations under which the new Order for the detention of the
appellant’s husband was made is one which the Court must recognise as
valid. Therefore that judgment is a determination of the validity of the
regulations: on the authority of that judgment all Rhodesian Courts would
so decide.
In this respect, at least, the Privy Council judgment was a triumph
of substance over form, of realism over fiction.
73 [1-968], 3 All E.R. 561, at p. 565.
74 Ibid., at p. 571.
