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Acts of state: Lord Diplock's curious inconsistency

Published online by Cambridge University Press:  02 January 2018

Peter Wesley-Smith
Peter Wesley-Smith*
Affiliation:
University of Hong Kong
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Extract

Most of the cases laying down the act of state doctrine, S.A. de Smith observed, were decided ‘in the heyday of imperial expansion, when judges often seemed to be as executive-minded as the Executive.’ Morris and Read, after analysing African cases adjudicating upon preexisting rights in ceded territories, conclude: ‘Those brought up in the traditional view of the judiciary as being the bulwark against any danger of autocratic behaviour on the part of the exeuctive may find all this somewhat susprising.’ Yet Lord Diplock, who could not fairly be described as executive-minded or reluctant to oppose executive autocracy, recently described as an ‘elementary fallacy’ the suggestion that a treaty transferring territory to the Crown can guarantee inhabitants' property rights before the municipal courts.

Type
Research Article
Information
Legal Studies , Volume 6 , Issue 3 , November 1986 , pp. 325 - 330
Copyright
Copyright © Society of Legal Scholars 1986

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References

1. Constitutional and Administrative Law (4th edn, 1981), p 154.

2. Indirect Rule and the Search for Justice (Oxford: Clarendon Press, 1972), p 60.

3. [1985] 2 WLR 786. The earlier proceedings are reported at [1983] HKLR 211 (High Court of Hong Kong) and [1984] HKLR 32 (Hong Kong Court of Appeal); see commentary by W. S. Clarke at (1984) 14 HKLJ 227.

4. [1985] 2 WLR 786 at 790–791 (emphasis in original).

5. [1793] 4 Bro CC 181; 29 ER 841 (Court of chancery).

6. See also Nabob of the Carnatic v East India Company (1793) 2 Ves Jun 56 at 60; 30 ER 521 at 523: a treaty between two sovereigns is not a subject of private, municipal jurisdiction.

7. East India Company v Syed Ally (1827) 7 Moore Ind App 555 at 578; 19 ER 417 at 430.

8. Rajah Salig Ram v Secretary of State for India in Council (1872) LR IA Supp 119; Sirdah Bhagwan Singh v Secretary of State for India in Council (1874) LR 2 IA 38; Doss v Secretary of State for India in Council; (1875) LR 19 Eq 509.

9. [1859] 13 Moo PCC 22; 15 ER 9.

10. 13 Moo PCC 22 at 75; 15 ER 9 at 28–29.

11. [1899] AC 572.

14. [1924] LR 51 IA 357.

13. Note 9 above.

14. Note 11 above; see also Secretary of State for India in Council v Bai Rajbai (1915) LR 42 IA 229.

15. [1924] LR 51 IA 357 at 360. See also cases concerning claims to the possession of gold and to pension arrears: West Rand Central Gold Mining Co Ltd v The King [1905] 2 KB 391 and Salamon v Secretary of State in Council of India [1906] 1 KB 613.

16. See D. P. O'Connell International Law (2nd edn, 1970), Vol, I, pp 377–379.

17. Trendtex Trading Corporation v Central Bank of Nigeria [1977] 1 QB 529 at 553–534.

18. Blankard v Galdy (1693) 4 Mod 222 at 225; 87 ER 359 at 361; Memorandum (1722) 2 Peere Wms 75; 24 ER 646; Campbell v Hall (1774) 1 Cowp 204; 98 ER 1045.

19. Walker v Baird [1892] AC 491.

20. The same rationale no longer automatically protects prerogative acts: see Council of Civil Service Unions v Civil Service Minister [1984] 3 WLR 1174.

21. ‘The true view of an act of State appears to me to be that it is a catastrophic change, constituting a new departure’: per Fletcher-Moulton LJ in Salaman v Secretary of State [1906] 1 KB 613, 640.

22. Sahaba (1859) 13 Moo PCC 22, 77; 15 ER 9, 29. 23. Ibid.

24. Salaman v Secretary of State [1906] 1 KB 613, 633, per Vaughan Williams LJ See also Nissan v Attorney-General [1970] AC 179, 238.

25. Ibid at 640 citing Frith v R (1872) LR 7 Ex 365, where, however, it was simply assumed that the East India Company become liable for a debt due from the prior sovereign of territory ceded to it; the actual decision was that the suppliant had brought his action against the wrong body.

26. [1921] 2 AC 399.

27. Ibid at 404.

28. Ibid at 407. See also Eshugbayi Eleko v OAG Nigeria [1931] AC 662 at 672.

29. [1924] LR 51 IA 357 at 360.

30. [1957] 2 All ER 785.

31. Ibid at 788. See also Promod Chandra Deb v Orissa (1963) 1 SCJ 1, discussed by Agrawala ‘The Doctrine of Act of State and the Law of State Succession in India’ (1963) 12 ICLQ 1399.

32. [1970] AC 179 at 210–211.

33. Lord Wilberforce, at p 232, referred to Cook v Sprigg as a case of doubtful authority.

34. See Wesley-Smith, Unequal Treaty 1898–1997 (Hong Kong: Oxford University Press, 1980), pp 92–100, 171–174.

35. Reproduced at [1983] HKLR 211 at 219.

36. [1985] 2 WLR 786 at 790.

37. R v IRC, ex p Federation of Self-Employed [1982] AC 617 at 640–641.

38. Compare Lord Denning in Buttes Gas and Oil Co v Hammer [1975] 1 QB 557 at 574 and Landmarks in the Law (London: Butterworths, 1984), p 227.

39. ‘Act of state in English Law: Its Relations with International Law’ (1934) 15 BYIL 98 at 111.

40. A further reason why the more liberal policy of Amodu Tijani might have been favoured is that the New Territories was leased, not ceded. If the Crown were acquiring administrative authority over the territory of a foreign sovereign for a limited period it would seem more appropriate to follow the spirit of the treaty and respect prior rights. (This is not to suggest that, because the New Territories was leased rather than ceded, the Hong Kong Government was restricted in its competence to legislate generally for the district. Such a conclusion, rejected by the Hong Kong courts in the present case, was reached by Sir John Carrington CJ in Chau Kwai-chiu v Wong Shin (1900) 9 CILC 298, in which the orthodox act of state cases were distinguished. The Order in Council incorporating the New Territories into the Colony of Hong Kong superseded the treaty, however, and equated the acquisition with a cession for ninety-nine years.)

41. For the documents and background relating to the settlement of the Hong Kong question see the Hong Kong booklet in Blaustein and Blaustein (eds), Constitutions of Dependencies and Special Sovereignties (Dobbs Ferry, NY: Oceana, 1975–85).

42. Gibson v East India Co (1839) 5 Bing (NC) 262 at 274–275; 132 ER 1105 at 1110.