Changing Law in Developing Countries

J. N. D. Anderson, J. N. D. Anderson

• Publisher: Routledge
• Year: 2021
• ISBN:
  9781000510980
• Edition: 1
• Topic: Scienze sociali
• Subtopic: Studi regionali

The 1960s, in retrospect, may be chiefly remembered for the unprecedented constitutional developments it witnessed in countries emerging from colonial rule. Originally published in 1963, an examination of these constitutional developments from the authoritative pens of the previous Legal Adviser to the Colonial and Commonwealth Relations Offices, and the Legal Adviser to the Colonial Office at the time was, therefore, particularly timely – for no two men in human history can have had to draft so many constitutional instruments.

One after another of these new constitutions had, moreover, included certain 'Fundamental Rights', so a discussion of this subject by a recognised academic authority, together with an examination by an ex-Chief Justice of Allahabad of the constitutional writs which have been so widely used in India to protect these rights, was particularly appropriate. An erudite examination of the origins of the famous phrase 'Justice, Equity and Good Conscience' by the Reader in Oriental Laws in the University of London, fittingly concludes the first half of this volume.

Legal developments in these emergent countries, had, however, by no means been limited to the sphere of constitutional law. So the series continues with contributions on the legal profession in African territories, by a former President of the Law Society, and on the problems posed by Islamic law in that continent, by the Professor of Oriental Laws. Criminal Law is represented by a consideration of 'Liability under the Nigerian Criminal Code' by an ex-Chief Justice of the Western Region; matters economic and sociological by papers on 'Legal Development and Economic Growth in Africa' and 'Women's Status and Law Reform' by two experts in Africa law; and developments in Asia by an examination of recent legislation on family law in Pakistan, and of the sources of Chinese Law in Hong Kong, by other members of the staff of the School of Oriental and African Studies.

1 The Authority of the United Kingdom in Dependent Territories¹

sir kenneth roberts-wray

Formerly Legal Adviser to the Secretary of State for the Colonies and the Secretary of State for Commonwealth Relations

The forms and processes of control and supervision exercised by the Government of the United Kingdom in dependent territories form a vast subject which could, without difficulty, be made to occupy weekly lectures throughout an academic term. On the other hand, it is possible to give (and, indeed, I have several times given) a fairly complete skeleton picture in less than an hour; but that would be of no use to one with experience of the subject, unless he were in need of sleep; and, as I know from experience, it would leave the less informed with nothing to take away with him except a state of bewilderment. For the empiricism and inhibitions of politicians and constitutional lawyers, reflected in scrappy and sometimes badly drafted Acts of Parliament (I am not thinking of present-day Parliamentary Counsel) have succeeded in producing a jigsaw puzzle which defies any attempt to combine brevity and comprehensiveness with clarity.

I therefore propose to compromise; to present a simplified overall sketch, but to discuss interesting points in detail. In particular I shall, at some length, presume to call in question a few generally accepted practices or propositions of law and I shall present one or two problems which do not appear previously to have been unearthed or fully discussed. I hope it is not necessary to make apologies for concentrating my attention on the specialist; for I feel that I should try to make a fresh contribution, however small, to a subject upon which a number of learned authors have written.

¹ The matters dealt with here and in chapters 3 and 4 are considered by the author at greater length in a book on Commonwealth and Colonial Law to be published shortly by Stevens & Sons Ltd.

Executive Authority

First, a few words about executive authority.

Certain powers are reserved to the Queen or the Secretary of State by Order in Council or Letters Patent, by Royal Instructions, or sometimes by laws passed by Colonial Legislatures. These, however, are few. The Governor is the local head of the Executive and he is expected to act in accordance with any instructions which he may receive from the Secretary of State. But control of this kind is not available when action does not depend upon the Governor himself. He cannot insist upon the carrying out of United Kingdom policy where the local Executive are in a position under the constitution to assert their will and the Governor has no reserved power to override them; or where the matter at issue is not of sufficient importance to justify the use of the reserved power. Moreover, certain executive functions are conferred by statute, not upon the Governor or Governor in Council, but on statutory bodies or other authorities who are not obliged to carry out the Governor’s orders.

Parliament

My main concern, however, is with legislative power, and it is to this subject that I want to devote the rest of this paper. First, there is the United Kingdom Parliament. The sovereignty of Parliament, as a principle of constitutional law, is so elementary that there is no need to discuss it. Not very long ago, a politician in the Caribbean area publicly claimed that the United Kingdom Parliament had no right to legislate for the Colony; but, as he was a member of the legal profession, one must assume that under cross-examination he would have said that he was talking of moral, not legal, right. During the trouble preceding the War of American Independence, a like claim in the American Colonies was responsible for the American Colonies Act, 1766,¹ in which Parliament solemnly declared that the Parliament of Great Britain had ‘and of right ought to have, full power and authority to make laws... to bind the colonies and people of America’. Did this piece of legislation serve any useful purpose? Where Parliament possesses legislative authority it requires no assertion; where Parliament has no power to make laws it cannot, by making one, give itself the power. It is true that United Kingdom Courts would presumably have given effect to the Act as such, but it is more to the point that the Courts in the American Colonies would probably not have done so. The Act could have made no difference to the law in force in the Colonies; it was either redundant or invalid. In point of fact, there can be little doubt that it was redundant.

¹ 6 G. 3, c. 12.

A very similar question would arise if an Act of Parliament purported to extend to, say, a Protected State in which the Crown had not acquired jurisdiction in the subject matter of the Act. It is highly improbable that a United Kingdom Court would hold that an Act was invalid to the extent that it went beyond jurisdiction acquired. But what of local Courts? They would be quite justified in declining to give effect to an Act of Parliament which went beyond the Crown’s jurisdiction. It is interesting to speculate how, if an appeal were brought to Her Majesty in Council, the situation would be dealt with by the Judicial Committee, bearing in mind that, when dealing with an appeal from a particular country, it sits as the highest appellate tribunal of that country. Unfortunately for students of Commonwealth jurisprudence, this absorbing problem is never likely to come before the Courts.

The Sovereign

The Sovereign possesses legislative and executive power derived, directly or indirectly, from the Prerogative, general Acts of Parliament and special Acts of Parliament. I shall deal with each in turn.

A large variety of types of instrument is available, though some of them are now rarely used. In the early days of the British Empire, Orders in Council, Charters, Letters Patent, Proclamations, Governors’ Commissions, Instructions to Governors and Warrants seem to have been used more or less indiscriminately. Nowadays, each type of instrument is in practice reserved for particular purposes. An Order in Council is almost invariably employed to establish a constitution and for most other purposes; Letters Patent are principally used for the creation of offices, particularly those of Governor-General and Governor, for countries within Her Majesty’s dominions and for delegating to the holders of such offices powers relating to such matters as the prerogative of mercy, the disposal of land and the appointment and dismissal of officers.

In the oldest Colonies, however, where the Crown does not possess general legislative power and elected legislative Houses are constituted under local laws, there are still Prerogative Letters Patent upon which the constitutions are to a significant extent dependent, and I shall have occasion to refer to these later. Thus, the Bermuda Letters Patent of 1888, as amended in 1953 and 1955, not only constitute the office of Governor and delegate powers to him; they also establish the Executive Council, set up the Legislative Council (the Upper House of the Legislature) confer the power to make laws and provide for disallowance. There are similar Letters Patent for the Bahamas and other Colonies in the Caribbean area.

Royal Instructions to the Governor are principally used to supplement Orders in Council and Letters Patent. It has from time to time been said that they are not law; but that is, to say the least, gross exaggeration. In general, Royal Instructions have the force of law. The only clear exceptions are statutory, notably section four of the Colonial Laws Validity Act, 1865,¹ which lays down that no Colonial Law shall be void or inoperative by reason only of any Royal Instructions ‘with reference to such Law or the Subject thereof’. The section is very limited in its scope. As it applies only to instructions with reference to the law or its subject matter, it cannot extend to instructions regarding, for instance, the composition of the legislature. This section is of importance in relation to the giving of the Royal Assent and the reservation of Bills for Her Majesty’s pleasure. As a rule, the Governor is given a general discretion to assent, refuse assent or reserve a Bill, but is required to reserve, or to assent only if certain conditions are satisfied, in the case of Bills falling within prescribed categories. If this requirement is in Royal Instructions it is caught by the section and if the Governor in fact assents when he should not have done so, his assent will, by virtue of the section, be valid. But that is not so if the requirement is in some other instrument, and Bills of first importance, such as those amending the constitution, have often been omitted from Royal Instructions and inserted in Orders in Council or Letters Patent as exceptions to the Governor’s general discretion to assent, so as to ensure that no Bill within the prescribed class can become law until the United Kingdom Government has an opportunity to consider its terms.

Another distinction, not without importance, is that between Royal Instructions under the Royal Sign Manual and Signet, which are approved in draft by Order in Council and printed, and less formal instructions, conveyed as a rule by despatch or telegram through the Secretary of State to a Governor. The former are used only for giving instructions which have continuing operation, the latter rather for giving instructions of a more or less administrative nature. Sometimes a provision in an Order in Council or Letters Patent requires a Governor to exercise powers or duties in accordance with instructions either under the Royal Sign Manual and Signet or through a Secretary of State. One result of this is that instructions under the Sign Manual and Signet can be, and occasionally have been, varied by instructions conveyed by despatch or telegram.

¹ 28 & 29 V., c. 63.

I now propose to consider the various Prerogative and statutory powers vested in the Sovereign in relation to different classes of territories. One major distinction which must be constantly borne in mind is that between the constituent power—the power to establish, amend or revoke constitutions for overseas countries—and the power to make law of other kinds, from the control of bicycles to the implementation of treaties.

The Prerogative

British Settlements. The extent of the Prerogative depends upon the territory concerned. At common law, British subjects who settle in a country without an organized government and legal system carry English law with them as their birthright; and though the Crown has a constituent power in such British settlements, it cannot make ordinary laws for them.

Some writers state that the Crown, in the exercise of the Prerogative, can grant only a constitution of the United Kingdom type, with an elected Lower House and a nominated Upper House or Council, but this alleged limitation does not appear to be supported by any judicial authority. Admittedly, it was usual for the Crown to set up legislatures analogous to that in Great Britain, but it was not obliged to do so. The practice was not uniform and it was more and more abandoned after the eighteenth century.

Nor is the Prerogative in settled Colonies limited to the power to establish a legislative body. The Letters Patent which I have mentioned, constituting the Office of Governor, delegating powers to him and providing for the Executive Council and for the making and disallowance of laws, are made for settled Colonies as well as those acquired by other means.

Unauthorised Settlements. The situation at common law in British settlements which have been neither previously authorized nor sub-sequendy recognized by the Crown is of considerable interest. Chitty, in his Prerogatives of the Crown,¹ implies that settlers have no right to make laws unless empowered by the Crown to do so. If that is so, what is the situation in a settled Colony in an uninhabited country which has never been given a constitution by the Sovereign? In British Honduras the settlers had their legislative body which made laws for many years before a dilatory government in the United Kingdom granted them Colonial status in 1862. The inhabitants of Pitcairn Island, with the assistance of visiting naval officers, maintained law-making bodies without any authorization from the Crown during the greater part of the history of the Island. The people of Tristan da Cunha had a constitution of a sort and ran their own affairs without any authorization from the Crown until as late as 1938. Were all the laws made by these communities legally worthless? Did those who enforced them lay themselves open to civil or criminal proceedings?

British subjects in an uninhabited country remain in the allegiance and under the protection of the Sovereign, and they cannot lawfully set themselves up as an independent State. They acquire sovereignty, if at all, on behalf of the Crown, but this involves a conflict with the doctrine that no addition can be made to the Crown’s dominions without the Crown’s consent—unless one regards the settlers as securing sovereignty without dominion and the occupied country as being comparable with a protectorate. The settlers must carry with them English law as in force at the time of settlement, otherwise they have no law at all. If the home Government is indifferent or inactive, has the common law nothing to say? Are the settlers unable to change or amplify the law they take with them to meet their own needs? It can be asserted, not without a fair degree of confidence, that in such circumstances settlers have a common law right to establish a body to make such laws as they require and Courts to enforce them. This view is admittedly not supported by the broad general principles enunciated in works dealing with colonial constitutional law, but since the exceptional cases with which we are concerned are not discussed, it is permissible to assume, without any reflection on the authors, that they had had no occasion to consider the problem. The alternative is a situation which the strain of common sense and natural justice running through the common law can be relied upon to avoid. The validity of laws made by these home-made legislatures seems never to have been challenged, and since one would be on fairly reliable ground in contending for the recognition of customs gradually developed by the people and regarded by themselves as binding, it would indeed be incongruous if rules deliberately laid down by their representatives were not accorded like recognition. And, since settlers take English law and, in general, their privileges as British subjects with them, does not this include the right, in case of need, to appoint or elect representatives to make laws for them, a right which would be theirs if they remained in the mother country? It is a pity that in The Attorney-General of British Honduras v Bristowe¹ the decision of the Judicial C...