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ABSTRACT
This article seeks to explore the British government’s perception of the role of the Judicial Committee of the Privy Council as a method of strengthening cohesion amongst the Commonwealth community, and in particular delves into the constitutional and diplomatic challenges that the British government faced in its attempt to utilise the Judicial Committee in order to maintain close ties with its former Southeast Asian colonies in the 1960s. Suggestions were made by the Foreign and Commonwealth Office and the Privy Council Office from the mid-1960s that newly-independent republics such as Singapore and Malaysia should be allowed to send its citizens to London as members of the Judicial Committee in order to dilute the prejudice against the Committee as a remnant of colonial rule. However, the proposals were rejected by the Lord Chancellor’s Office on the grounds that Asian judges were of insufficient calibre to sit as members of the Judicial Committee, and that citizens of republics were unable to swear an oath of loyalty to the British monarch as was required for all Privy Counsellors. The Privy Council Office were of the opinion that a new system could be introduced whereby the Judicial Committee member would not have to be a fully-fledged Privy Counsellor and therefore would not have to swear the oath, while the Commonwealth Secretariat put forward its argument that Asian judges were good enough to ensure standards of the Judicial Committee would not be lowered. However, the Lord Chancellor’s Office argued that such non-Privy Counsellors would only be ‘second-class’ constituents of the Judicial Committee whose rulings would be unacceptable to countries such as Australia and instead proposed the creation of a Commonwealth Court of Appeal which the Foreign Office deemed unrealistic. In the end, no judges from the Asian republics were allowed sit on the Judicial Committee, resulting in Malaysia and Singapore abolishing their appeals to the Judicial Committee in 1984 and 1994 respectively.
Disclosure Statement
No potential conflict of interest was reported by the author(s).
Notes
1 Devereux, “The End of Empires,” 119.
2 Strachey, The End of Empire, 205.
3 Hyam, Britain’s Declining Empire, 239.
4 Louis, “Introduction,” 1.
5 Milward, The United Kingdom and the European Community, Volume 1, 274.
6 Howell, The Judicial Committee of the Privy Council 1833–1876, 3.
7 Bentwich, The Practice of the Privy Council in Judicial Matters, 1.
8 Ibhawoh, Imperial Justice, 28.
9 Barrett, The Law Lords, 159.
10 Wortley, Jurisprudence, 74.
11 Australia would abolish its right to appeal to the JCPC in 1986, while New Zealand would become the last former ‘White Dominion’ to abolish this right in 2003. See Spencer, Jackson’s Machinery of Justice, 98–9.
12 Among the territories and independent countries whose final appeals were still heard by the JCPC as of 2011 were Antigua and Barbuda, the Bahamas, Barbados, Bermuda, Jersey, Guernsey, the Falkland Islands, Gibraltar, Jamaica, the Isle of Man and the Pitcairn Islands. See Ingman, The English Legal Process, 98–9.
13 To cite just a few examples, see Marshall, “The Judicial Committee of the Privy Council: A Waning Jurisdiction”; Marshall, “The Binding Effect of Decisions of the Judicial Committee of the Privy Council”; Beth, “The Judicial Committee of the Privy Council and the Development of Judicial Review”; De, “A Peripatetic World Court: Cosmopolitan Courts, Nationalist Judges and the Indian Appeal to the Privy Council.”
14 Burns, “The Judicial Committee of the Privy Council: Constitutional Bulwark or Colonial Remnant?”, 522.
15 O’Brien, “The Post-Colonial Constitutional Order of the Commonwealth Caribbean,” 969–77.
16 Barrett, The Law Lords, 159.
17 Ingman, The English Legal Process, 98.
18 Gillespie and Weare, The English Legal System, 219.
19 Ingman, The English Legal Process, 100.
20 Ibid.
21 Marasinghe, “Ceylon – A Conflict of Constitutions,” 645.
22 The National Archives (TNA), DO 161/291, From Watts to Oxley, 28 May 1964.
23 TNA, DO 161/291, From Dale to Coldstream, 24 June 1964
24 TNA, DO 161/291, From Walker to Dale, 30 November 1964.
25 TNA, DO 161/291, From Dale to Coldstream, 14 December 1964.
26 TNA, PC 20/16, From Marshall to Elwyn-Jones, 2 December 1967.
27 TNA, DO 161/291, From Dale to Hamilton, 11 May 1965.
28 L. M. D. de Silva, who served as Solicitor-General of Sri Lanka from 1932 to 1935.
29 TNA, DO 161/291, From Dale to Hamilton, 11 May 1965.
30 Ibid.
31 TNA, PC 20/16, From Marshall to Elwyn-Jones, 2 December 1967.
32 Singapore separated from the Federation of Malaya in 1965 with Yusof Ishak as independent Singapore’s first President and head of state.
33 TNA, PC 20/16, From McPetrie to Bourne, 18 January 1968.
34 TNA, PC 20/16, From McPetrie to Bourne, 15 January 1968
35 TNA, PC 20/16, From Elwyn-Jones to Marshall, 11 March 1968.
36 TNA, PC 20/16, From de la Mare to Agnew, 22 August 1969.
37 TNA, PC 20/16, From de la Mare to Agnew, 19 September 1969.
38 TNA, PC 20/16, From de la Mare to Agnew, 3 October 1969.
39 TNA, PC 20/16, From McPetrie to Dobson, 13 November 1969.
40 TNA, PC 20/16, From de la Mare to Agnew, 22 August 1969.
41 TNA, PC 20/16, Draft letter to de la Mare from Johnston, 13 November 1969.
42 TNA, PC 20/16, From Agnew to McPetrie, 21 November 1969.
43 Ibid.
44 TNA, PC 20/16, From Dobson to McPetrie, 28 November 1969.
45 TNA, PC 20/16, From Dobson to McPetrie, 28 November 1969.
46 TNA, PC 20/16, From Mills to Agnew, 4 December 1969.
47 TNA, PC 20/16, From Dobson to McPetrie, 28 November 1969.
48 TNA, PC 20/16, From Agnew to Dobson, 5 December 1969. Peter Burns argues that ‘proponents of the retention of the Privy Council appeal are manifesting the colonialist view when they base their argument on judicial quality’ since ‘assertion based on judicial quality is just not capable of demonstration.’ Burns, “The Judicial Committee of the Privy Council,” 520–2.
49 TNA, PC 20/16, From Dobson to Agnew, 10 December 1969.
50 TNA, PC 20/16, Possibility of Including Malaysian and Singaporean Judges in Judicial Committee - Note of Meeting, 7 January 1970.
51 Ibid.
52 TNA, PC 20/16, Possibility of Including Malaysian and Singaporean Judges in Judicial Committee - Note of Meeting, 27 January 1970.
53 Ibid.
54 TNA, PC 20/19, From Walker to Wilford, 4 February 1970.
55 TNA, PC 20/19, From McEntee to Walker, 8 April 1970.
56 TNA, PC 20/16, From Kellock to Dobson, 7 May 1970.
57 Ibid.
58 TNA, PC 20/16, From Dobson to Kellock, 12 May 1970.
59 TNA, PC 20/19, From McCluney to Blair, 29 June 1971.
60 TNA, PC 20/19, From Agnew to Jellicoe, 18 June 1971.
61 TNA, PC 20/19, From Bledisloe to Bourne, 2 June 1980.
62 TNA, PC 20/19, From Bourne to Bledisloe, 4 June 1980.
63 TNA, PC 20/19, From Mills to Bourne, 11 June 1980.
64 Ingman, The English Legal Process, 99.