![handle is hein.journals/monash42 and id is 1 raw text is:
OF LIONS AND SQUEAKING MICE IN
ANXIOUS TIMES
H P LEE*
I INTRODUCTION
In this lecture I would like to narrate the tale of how courts find it difficult to grapple
with determining the degree they should venture to provide effective oversight of
the exercise of extraordinary powers by the executive arm of government in crisis
times. In this area maxims are bandied about. The welfare of the people is the
supreme law according to the Latin maxim salus populi suprema lex esto; on the
other hand there is the grand declaration that 'amid the clash of arms, the laws are
not silent'.' I will explore how apex courts in democratic countries, by scurrying
from invocations of salus populi or 'national security' in a 'highly deferential'2
manner, have enabled the executive in a number of countries around the world
to seize upon their judicial pronouncements to justify the manipulation of legal
weapons to intimidate and incarcerate their political opponents.
I will start by reading out one of the most celebrated judicial pronouncements in
legal history:
I view with apprehension the attitude of judges who on a mere question of
construction when face to face with claims involving the liberty of the subject
show themselves more executive minded than the executive. ... In this country,
amid the clash of arms, the laws are not silent. They may be changed, but they
speak the same language inwar as inpeace. It has always been one of the pillars of
freedom, one of the principles of liberty for which on recent authority we are now
fighting, that the judges are no respecters of persons and stand betweenthe subject
and any attempted encroachments on his liberty by the executive, alert to see that
any coercive action is justified in law. In this case I have listened to arguments
which might have been addressed acceptably to the Court of King's Bench in the
time of Charles I.3
* Emeritus Professor ofLaw, MonashUniversity. Sir JohnLathamProfessor ofLaw, Monash University
1995-2014. This is a revised version of the 21 Lucinda Lecture delivered at Monash University Law
Chambers on 8 October 2015. I have drawn extensively from a number of my published works for this
Lecture: H P Lee, 'Judges and Constitutional Government' [2000-2001] LAWASIA Journal 30; H P
Lee, 'Salus Populi Suprema LexEsto: Constitutional Fidelity in Troubled Times' in HP Lee and Peter
Gerangelos (eds), Constitutional Advancement in a Frozen Continent. Essays in Honour of George
Winterton (Federation Press, 2009) 53; H P Lee, 'Constitutionalised Emergency Powers: A Plague on
Asian Constitutionalism?' in Victor V Ramraj and Arun K Thiruvengadam (eds), Emergency Powers
in Asia. Exploring the Limits ofLegality (Cambridge University Press, 2010) 393.
1 LiversidgevAnderson [1942] AC 206, 244 (Liversidge').
2 Oren Gross and Fionnuala Ni Aoliin, Law in Times of Crisis. Emergency Powers in Theory and
Practice (Cambridge University Press, 2006) 78.
3 Liversidge [1942] AC 206, 244.](ViewImageLocal?handle=hein.journals/monash42&div=1&collection=&method=preview&ext=.png&size=3)
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