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42 Monash U. L. Rev. 1 (2016)

handle is hein.journals/monash42 and id is 1 raw text is: 

                            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.

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