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Colonial Cases

In re Pasha 1923

[reception of English law, habeas corpus]

In re Pasha

Judicial Committee of the Privy Council
March 1923
Source: The Times, 16 March, 1923

(Present - Viscount Haldane, Lord Dunedin, Lord Atkinson, Lord Sumner, and Lord Wrenbury.)
  Their Lordships rejected a petition by Zaghlul Pasha, an Egyptian political prisoner, who had been deported from Egypt to Gibraltar, for special leave to appeal from a judgment of the Chief Justice of Gibraltar.
  The application was first made on January 23, and was reported in The Times of January 24. It was then adjourned to enable the Board to obtain more information about the law and ordinances in operation at Gibraltar.
  Mr. Upjohn, K.C., and Mr. James Wylie, were counsel for Zaghlul Pasha; the Attorney-General (Sir Douglas Hogg, K.C.) and Mr. Giveen for the Crown.
  Zaghlul Pasha, in his petition, stated that he was an Egyptian subject at present detained as a political prisoner in Gibraltar. He desired special leave to appeal from a judgment of Chief Justice Tudor sitting in the Supreme Court on September 20 last, dismissing an ex parte application made by him for the issue of a summons for the Crown to show cause why he should be longer detained.  The questions involved were whether officers and servants of the Crown were entitled to detain as a prisoner in Gibraltar an Egyptian subject who had been deported from Egypt for political reasons without any charge against him, or whether an ordinance of the Governor of Gibraltar purporting to have been passed on September 1, 1922, which justified such detention was within the powers of the Governor.
  The petitioner said that he was an Egyptian subject about 70 years of age, who had been a Judge of the High Court, Minister of Education, and Minister of Justice in Egypt. All his life he had been a Nationalist, and he desired to secure the independence of Egypt and to establish popular government on Western lines on the model of the English Government. He had thrice been offered the Premiership of Egypt, but had refused. In 1914 he was elected Vice-President of the Legislative Assembly, which was suspended during the war. In 1918 he became by general acclamation President of the Egyptian National Delegation to the Peace Conference. The delegation were refused permission to attend the Peace Conference or to go to London to plead the cause of Egyptian independence. He was arrested and taken to Malta, but was afterwards released.  In 1919 he went to Paris as President of the delegation and to London in 1920 on the invitation of Lord Milner.  He returned to Egypt, but was unable to cooperate with the new Premier.
  In 1921 riots occurred at Alexandria between Greeks and Egyptians, but they were not instigated by the petitioner. On December 21, 1921, the High Commissioner prohibited him from all further participation in politics and ordered him to retire to his country house. But he refused, and he was arrested and was sent to Suez. Because of that, riots broke out in Cairo and elsewhere, and he was removed to Aden in a British man-of-war, and was taken to the Seychelles.  In March, 1922, the British Government declared Egypt to be an independent sovereign State. In September last the petitioner was taken to Gibraltar, where he is still under detention. He asked for special leave to appeal from the Chief Justice's decision on the ground of the serious question of great public and constitutional importance involved.
  Mr. Upjohn, resuming his application, said that the crucial question was whether the law of England applied to Gibraltar.  There was a series of charters and an Order in Council of 1884.  The Order in Council came too late to prevent the law of England from applying to the exclusion of any of the local ordinances.
  Lord Haldane - With regard to the laws of Gibraltar - did the British Crown ever do anything?
  Mr. Upjohn - Yes, by chance. There were successive charters in 1730, 1752 and 1817. These three charters were repealed and another charter of 1830 reconstituted the existing Courts, and instead of using the language of the former charters, it said: "shall be the laws now in force or hereafter to be brought into force;" which was clear assumption that some law was in force. He submitted that there was a constitutional question which should come before their Lordships Board for consideration.
  Lord Haldane asked the Attorney-General whether this matter did not raise a very grave question of constitutional law.  By the law of England his Majesty's Judges were charged with the duty of protecting the subject or the stranger from the powers of the Executive.  If the Executive acted in accordance with certain powers it was the duty of the Judges to recognize that, but, if not, the responsibility resting on the Judges was a very grave one.
  The Attorney-General said that he hoped to satisfy their Lordships that no such question arose on this petition, and having regard to what was going on in Egypt he was anxious that their Lordships should not give leave to appeal.
  Lord Haldane - We are not unaware of these serious matters, but at the same time we have to administer British justice.
  The Attorney-General said that his submission was that there was no point on which there could be any serious doubt. Gibraltar was acquired by conquest, and the old theory was that the conqueror could have the whole of the inhabitants put to the sword, or make laws for governing them.
  Lord Haldane - I think you may assume that this Board is familiar with some facts. Can you say that this is a matter which ought not to be argued?
  The Attorney-General said that the Habeas Corpus Act did not apply in Gibraltar except so far as it had been applied by the King. When a colony was conquered, unless the King chose to alter it, the law applying in that colony continued. There was nothing to show that anything like habeas corpus was a right in Gibraltar in 1704. When Gibraltar was captured in that year, that did not give to it the rights of English law - the Habeas Corpus Act, Magna Charta, and the Bill of Rights. The charters which Mr. Upjohn relied on had been repealed. The question was whether the Crown, in giving law to Gibraltar, reserved the power to exclude habeas corpus. For this purpose there was no distinction between the Habeas Corpus Act and any other Act.
  My submission, continued the Attorney-General, is that so far as Gibraltar is concerned the position is that the Crown said in 1884 that "habeas corpus shall apply to Gibraltar except so far as I choose hereafter to vary."
  Lord Wrenbury - And Parliament has said nothing? - Nothing.
  Lord Haldane (to the Attorney-General) - Are you right in suggesting that the Sovereign by Order in Council can legislate in a manner which is inconsistent with the general law of England?
  The Attorney-General said that when a colony was conquered, the law of that colony continued unless and until the King chose to alter it. The King did this by Order in Council or any way that pleased him. There was no authority to the contrary, and there could be no serious doubt.
  Mr. Upjohn, replying, said that the petitioner was a temporary British subject, and he had all the rights of a British subject to the extent of personal liberty. The common law of England had been applied to Gibraltar so as to make habeas corpus and Magna Charta part of the common law of Gibraltar. He had produced a number of charters and every one of them from 1817 expressly said that justice should be administered in accordance with the laws of England. The charter which created the Supreme Court, although it did not speak of the laws of England, referred to "laws now in force or hereinafter to be brought into force." From the time when the charter of 1830 came into force the whole of the others were revoked.
  Lord Wrenbury - It continues the laws now in force and provides that they may be added to.
  Mr. Upjohn said that he desired an opportunity of establishing more fully the case which he had submitted. If English law was the law of Gibraltar in 1884, and an Order in Council said that English law in the colony might be made invalid by an agent of the Crown, surely that was a matter for the serious consideration of their Lordships.
  Their Lordships conferred in private, and Lord Haldane announced that the Board did not think that leave to appeal should be granted.
  The petition was accordingly rejected.
    Solicitors -  Messrs. Charles Russell and Co.; the Treasury Solicitors.

Published by Centre for Comparative Law, History and Governance at Macquarie Law School