Colonial and Post-Colonial Constitutionalism in the Commonwealth: Peace, Order and Good Government 0415813646, 9780415813648

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Colonial and Post-Colonial Constitutionalism in the Commonwealth

The peace, order and good government (POGG) clause is found in the constitutions of almost all Commonwealth countries. Since its introduction, the clause has played a significant role in colonial and post-colonial constitutionalism in Commonwealth jurisdictions. This book is the first full-length analysis of the various dimensions of the POGG clause. It argues that the origins of the POGG clause mark it out as an anachronistic feature of British constitutionalism when set against a modern setting of human rights, liberty and democratisation. The book traces the history, politics and applications of the clause through the colonial period in Commonwealth territories to date. It provides critical evaluation of the POGG clause in a crosscontinental enquiry, examining statutory, political and constitutional deployment in Australia, Canada, India, Nigeria, South Africa and the United Kingdom. The evaluation demonstrates that the POGG clause has relevance in a number of significant aspects of legal and socio-political ordering across the Commonwealth featuring prominently in the federalism question, emergency powers and the review of administrative powers. It maintains that while the clause is not entirely devoid of positive value, it has been used not only to further the objects of colonialism, but also authoritarianism and apartheid. This book calls for a rethink of the prevailing subjective approach to the interpretation of the clause. The book will be of interest to students and academics of public law, human rights law and comparative politics. Hakeem O. Yusuf is a Senior Lecturer at the University of Strathclyde. His monograph, Transitional Justice, Judicial Accountability and the Rule of Law (Routledge, 2010) was shortlisted for the 2011 IALT Kevin Boyle Book Prize.

Routledge Research in Constitutional Law Available titles in this series include: Weak Constitutionalism Democratic Legitimacy and the Question of Constituent Power Joel I. Colon-Rios Engineering Constitutional Change A Comparative Perspective on Europe, Canada and the USA Xenophon Contiades, Centre for European Constitutional Law Freedom of Speech Importing European and US constitutional models in transitional democracies Uladzislau Belavusau Colonial and Post-Colonial Constitutionalism in the Commonwealth Peace, Order and Good Government Hakeem O. Yusuf Dynamics in the French Constitution Decoding French republican ideas David Marrani

Colonial and Post-Colonial Constitutionalism in the Commonwealth Peace, Order and Good Government Hakeem O. Yusuf

Routledge Taylor Si Francis Group LONDON AND NEW YORK

First published 2014 by Routledge 2 Park Square, Milton Park, Abingdon, Oxon, OX14 4RN and by Routledge 711 Third Avenue, New York, NY 10017 Routledge is an imprint of the Taylor & Francis Group, an informa business © 2014 Hakeem O. Yusuf The right of Hakeem O. Yusuf to be identified as author of this work has been asserted by him in accordance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988. All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. Trademark notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe. British Library Cataloguing in Publication Data A catalogue record for this book is available from the British Library Library of Congress Cataloging-in-Publication Data Yusuf, Hakeem. Colonial and post-colonial constitutionalism in the commonwealth : peace, order and good government / Hakeem Yusuf. pages cm. -- (Routledge research in constitutional law ; 7) Includes index. ISBN 978-0-415-81364-8 (hardback) -- ISBN 978-0-203-06804-5 (ebk) 1. Constitutional law--Commonwealth countries. 2. Implied powers (Constitutional law)--Commonwealth countries. 3. Police power-Commonwealth countries. 4. Federal government--Commonwealth countries. I. Title. K3165.Y87 2014 342.171’241--dc23 2013027798 ISBN: 978-0-415-81364-8 (hbk) ISBN: 978-0-203-06804-5 (ebk) Typeset in 10/12 Baskerville MT by Servis Filmsetting Ltd, Stockport, Cheshire

Contents

Acknowledgementsvii Forewordix Table of cases xi Introduction 1 1. Peace, order and good government – origin, development and meaning of a power

6

2. Canada – federalism and the country of ‘peace, order and good government’ 37 3. Peace, order and good government in Australia – of legalism and parliamentary sovereignty

87

4. Adventurers in power – federalism and peace, order and good government in Nigeria

128

5. Empire all over again – peace, order and good government in the United Kingdom and its territories

161

6. Law, politics and peace, order and good government – the case for change 193 Conclusion 238 Index 243

For Shefiat and Kareemah

Acknowledgements

I have accumulated a considerable debt of gratitude in the course of writing this book. I am especially grateful to Brice Dickson (Queen’s University Belfast) and Rory O’Connell (TJI, University of Ulster). Brice and Rory were very encouraging and supportive from conception through to the virtual completion of this book. They gave so generously of their time and with so much good cheer, too. In addition to numerous discussions, they read and provided valuable comments on various draft chapters and suggested very useful sources I could have missed out, particularly with reference to Northern Ireland. Brice deserves additional credit for the speed at which he provided qualitative feedback. Nlerum Okogbule (Rivers State University of Technology, Nigeria) – like Brice and Rory – kindly read and provided very valuable comments on the working paper that I later developed into this book. I am also indebted to Canadian author and thinker John Ralston Saul and Ian E. Wilson (Librarian and Archivist of Canada Emeritus), who both shared their thoughts with me on previous work they had done on tracing the origin of Peace, Order and Good Government (POGG) in Commonwealth c­ onstitutions generally, and with reference to Canada in particular. I equally benefitted from the constructive and timeous feedback I received on different draft chapters of the book, notably from Prue Vines, Andrew Lynch (University of New South Wales) and Donald Nicolson (University of Strathclyde). Prue and Andrew kindly brought some very important sources and information to my attention which enriched my discussion of the Australian context. Donald was so thorough I completely redirected a draft chapter following his comments. Onder Bakircioglu (Queen’s University Belfast) also spared time to discuss aspects of the structure of this book with me which was quite helpful. I express my profound appreciation to Monica Barry (University of Strathclyde) for kindly proof-reading parts of the book. Other colleagues at the Strathclyde University Law School were supportive in various ways, not least by providing such a collegial and pleasant working environment. In particular, I am grateful to Mark Poustie, Bryan Clark, Cyrus Tata, Francesco Sindico, Ben Farrand, Emile Rose, Stephanie Switzer, Elaine Webster, Laura Piacentini and Barry Rodger for their support and encouragement during the writing of this book. The research leading to this book would have been greatly hampered without the funding provided by the Queen’s University Belfast Initial Start-Up Grant

viii  Colonial and Post-Colonial Constitutionalism in the Commonwealth and the University of Strathclyde Strategic Appointments Research Grant. I express my gratitude to both institutions for providing not just the financial but also material support including excellent information and research resources for this book. John Knowles of the QUB Information Services deserves credit and special mention. John was very patient and supportive in the formative stages of my research on this book while I was at QUB. I must record my delight and profound gratitude to Lord Hope of Craighead for agreeing to write a foreword to this book on relatively short notice despite his busy schedule. Even more important is his graciousness in penning a foreword to this book in what is obviously a difficult circumstance in light of his professional career. Lord Hope was, among others, a senior member of the two most revered judicial institutions in his dignified judicial career; the House of Lords and the Judicial Committee of the Privy Council. As any reader of this book will find, I strongly criticised most of the decisions of the two institutions on ‘peace, order and good government.’ I remain obliged for his humility and candour. I am very pleased to acknowledge and pay tribute to my friend Lookman Grillo. I owe a debt of gratitude to Lookman for his patience, understanding and unflinching support over the course of our longstanding friendship. In his usual quiet and unassuming manner, Lookman kindly secured most of the Nigerian case law that I relied on in this book. As usual, I am deeply indebted to my family for their understanding and support throughout the period I was working on this book. Kareemah, Khadeejah, Aisha and Maryam displayed great understanding throughout the last summer which we should have spent holidaying in exciting places. Abdullah was a delight with his interventions since he could not understand what I was up to. For this and so many other privations you have borne with fortitude, I remain grateful. I am also grateful to the anonymous reviewers of Routledge who provided very positive and constructive feedback on the proposal for this book. I have been privileged to work with an excellent editorial, production and marketing team at Routledge; Katie Carpenter, Stephen Gutierrez, Mark Sapwell, Hazel Sharkey, Jessica Moody, Glynis Dyson and Alex Fryer. To you and all others who I have not mentioned, I say a million thanks. I bear the usual burden alone; all errors remain mine. Hakeem O. Yusuf Newton Farm Glasgow October 2013.

Foreword By Lord Hope of Craighead KT

At first sight the phrase ‘for peace, order and good government’, which first appeared in section 91 of the British North America Act 1867 to describe the limits of the power to make laws that were conferred on the nominated legislature in Canada by the Imperial Parliament, could not have been better chosen. It would have been impracticable to define exactly what that legislature could and could not do if it was to fulfil its task as the delegated law-maker for the territory. A formula had to be found that would enable it to meet this need and, as the aim was to de-centralise the legislative power, it had to be a generous one. The effect of the phrase that was selected to achieve this aim was to confer what was later to be described as the widest discretion on that legislature, equivalent to that possessed by the Imperial Parliament itself. So it shared with the position which that Parliament enjoyed under the principle of sovereignty, which was that issues as to what lay with its powers were for Parliament itself to decide, not for the courts. In practice this meant that the powers of the colonial legislature were as ample and unchallengeable as those of the Parliament by which the powers were conferred. It is hard not to believe that this was indeed the intention of those in charge of the colonial office at that time, whose instructions the draftsman was seeking to express when he chose those fine words. Respect was to be accorded in these matters to the judgment of the colonial legislature. What better phrase, one might ask, could there be? The problem which this excellently researched book reveals is the product not of the words themselves, but of the way they were interpreted by the judges in the nineteenth century. It is the product too of the jurisprudence that has accorded that interpretation such respect that the courts will still refuse to answer any questions as to the limits of the power that the phrase confers. They are, in short, not justiciable. This is as true for the former inhabitants of the Chagos Archipelago, who sought to challenge the exercise of the powers conferred on the Commissioner by the British Indian Ocean Territories Order 1965, as it is for the exercise of its legislative power by the Parliament of New South Wales and the federal government in Canada. The doctrine of precedent, which judges are bound to respect, has strong roots. It gives stability to the law, which is in everyone’s interest. It was the application of that doctrine that led the majority of the Appellate Committee of the House of Lords,1 following an equally powerfully

x  Colonial and Post-Colonial Constitutionalism in the Commonwealth reasoned decision 20 years earlier of the High Court of Australia,2 to reject the Chagos islanders’ appeal. It is hard to see how the Appellate Committee’s decision could have been otherwise, unless it had been willing to depart from an array of case law of the highest authority. But the controversy that the decision gave rise to illustrates the point which the author seeks to make in his examination of the present state of the law across a much wider canvas. His point is directed to the influence that these nineteenth century decisions, crafted in a very different era, still has among judges and scholars all over the Commonwealth. It is not universal. All three judges in the Court of Appeal and Lord Bingham and Lord Mance in the House of Lords in the Chagos islanders’ case were of the opinion that the exercise of the power by the Commissioner was open to judicial review. But the fact remains that the decision of the majority was to the contrary. As with the debate as to whether the United Kingdom Parliament is no longer to be regarded as sovereign, we are still quite a long way away from the stage where one could be confident the courts will be prepared to depart from the established rule as to the effect of the phrase. It is that aspect of the position that makes this book so fascinating. It aims, and deserves, to stimulate further debate on this fundamental issue. It does so by asking the questions that so many judges, until now, have declined to answer and by pointing out the injustices that the established position can give rise to. The author seeks to bring the debate into what he describes as the modern setting of human rights, liberty and democratisation. Another way of making the same point is to ask the reader to contrast the role that the phrase continues to have in Commonwealth jurisdictions with the position now enjoyed by the devolved legislatures in the United Kingdom, the outer limits of whose legislative powers are not defined by the same phrase. In their case it has been held, by applying the modern constitutional principles of a liberal democracy, that the rule of law enforced by the courts is the ultimate controlling factor as to what they can and cannot do.3 It is not entirely beyond the bounds of possibility that the courts of the Commonwealth will find their way to adopting the same approach to the phrase itself which, as the author so powerfully indicates, has caused so much trouble. David Hope 3 October 2013

Notes 1 R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 2) [2008] UKHL 61, [2009] 1 AC 453. 2 Union Steamship Co of Australia Pty Ltd v King (1988) 166 CLR 1. 3 AXA General Insurance Ltd v HM Advocate [2011] UKSC 46, [2012] 1 AC 868. paras 49–51 and 152–153.

Table of cases

Australia Albert Namatjira v Gordon Edgar Raabe [1958] NTJ 608 Allders International Pty Ltd v Commissioner of State Revenue (1996) 186 CLR 630 Attorney-General (Vict) v The Commonwealth (1945) 71 CLR 237 Austin v Commonwealth (2003) 215 CLR 185 Australian Communist Party v The Commonwealth (1951) 83 CLR 1 Bank of NSW v Commonwealth (1948) 76 CLR 1 Barton v The Commonwealth (1974) 131 CLR 477 Bonser v La Macchia (1969) 122 CLR 177 Broken Hill South Ltd v Commissioner of Taxation (1937) 56 CLR 337 Building Construction Employees and Builders’ Labourers Federation of New South Wales v Minister for Industrial Relations (1986) 7 NSWLR 372 Capital Duplicators Pty Ltd and another v Australian Capital Territory and another (1992–93) 177 CLR 248 Chenard and Co v Joachim Arissol [1949] AC 127 China Ocean Shipping Co v South Australia (1979) 145 CLR 172 Christopher John Wake and Djiniyini Gondara v Northern Territory of Australia and another (1996) 109 NTR 1 Clayton v Heffron (1960) 105 CLR 214 David Campbell Strachan, Robert John Kelly, Alistair Bruce Gibb v Caroline May Graves [1997] TASSC 116 Davis v The Commonwealth (1988) 166 CLR 79 Durham Holdings Pty Ltd v News South Wales (2001) 205 CLR 399 Ex rel Dale v Commonwealth (1945) 71 CLR 237 Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51. McGinty v Western Australia (1996) 186 CLR 140 Melbourne Corporation v Commonwealth (1947) 74 CLR 3 Mobil Oil Australia Pty Ltd v Victoria (2002) 211 CLR 1 Namatjira v Raabe (1959) 100 CLR 664 Nash v Purcell (1828) Sel Cas (Dowling) 523 New South Wales v Commonwealth (1975) 135 CLR 337 Newcrest Mining (WA) Ltd v Commonwealth (1997) 190 CLR 513

xii  Colonial and Post-Colonial Constitutionalism in the Commonwealth Pape v Commissioner of Taxation [2009] HCA 23 Pearce v Florenca (1976) 135 CLR 507 Polyukhovich v Commonwealth of Australia and another (1991) 172 CLR 501 Powell v The Apollo Candle Company Limited (New South Wales) [1885] UKPC 5 R v Kirby ex parte Boilermakers’ Society of Australia (1956) 94 CLR 254 Reg v Bull (1974) 131 CLR Reg v Foster ex parte Eastern and Australian Steamship Co Ltd (1959) 103 CLR 256 Robinson v Western Australian Museum (1977) 138 CLR 283 S Soundararajan and others v CM Natarajan and others (1921) 40 MLJ 354 The Commonwealth v Tasmania (1983) 158 CLR 1 Thomas William McCawley v The King (1920) 28 CLR 106 Union Steamship Co of Australia Pty Ltd v King (1988) 166 CLR 1 Victoria v The Commonwealth (1975) 134 CLR Victoria v The Commonwealth (1971) 122 CLR 353 William v Commonwealth of Australia and others [2012] CA 23 William McCawley v The King (1920) 28 CLR 106 XYZ v Commonwealth of Australia (2006) HCA 25

Canada Anti-Inflation Act Reference [1976] 2 SCR 373 Attorney-General for British Columbia v Attorney-General for Canada [1937] AC 377 Attorney-General for British Columbia v Attorney-General for Canada [1937] AC 391 Attorney-General for Canada v Attorney-General of British Columbia [1929] AC 111 Attorney-General for Canada v Attorney-General for Ontario [1937] AC 355 Attorney-General for Canada v Attorney-General for Ontario and others [1937] AC 326 (PC) Attorney-General for Ontario v Attorney-General for the Dominion [1896] AC 348 Attorney-General of Ontario v Canada Temperance Federation [1946] AC 193 Barker v City of Frederickton (1879) Pugs & Bur Sup Ct New Br Rep 139 Canada Temperance Federation (Canada Temperance) [1946] AC 193 Cooperative Committee on Japanese Canadians and another v Attorney-General of Canada and another [1947] AC 87 Dunphy v Croft [1931] SCR 531 Farmers Credit Arrangement and Attorney-General for Ontario v Attorney-General for Canada [1937] AC 405 Fort Frances Pulp and Power Co Ltd v Manitoba Free Press Co Ltd and others [1923] AC 695 (PC) Hodge v Queen (1883) LR 9 AC 117 (PC) In re Regulation and Control of Aeronautics in Canada [1932] AC 54 In re Regulation and Control of Radio Communications [1932] AC 30 Insurance Company v Parsons (1881) 7 AC 96 (PC) Johannesson v Rural Municipality of West St Paul (Johannesson) [1952] 1 SCR 292 Labatt v Attorney-General of Canada [1981] 1 SCR 941 Louis Riel v The Queen ex parte Riel (1887) LR 10 AC 675 (PC)

Table of cases xiii Munro v National Capital Commission [1966] SCR 663 Nadan v The King [1926] 1 AC 482 Ontario Hydro v Ontario [1993] 3 SCR 327 Québec (Attorney-General) v Lacombe [2010] 2 SCR 453 R v Crown Zellerbach Canada Ltd [1988] 1 SCR 401 R v Hauser [1979] 1 SCR 984 R v Hydro Québec [1997] 3 SCR 213 Re: Resolution to Amend the Constitution [1981] 1 SCR 753 Reference Re Amendment of the Constitution of Canada (Nos 1, 2, and 3) [1981] 1 SCR 753 Reference Re Newfoundland Continental Shelf [1984] 1 SCR 86 Reference re Offshore Mineral Rights [1967] SCR 792 Reference re Secession of Quebec [1998] 2 SCR 217 Reference re Wartime Leasehold Regulations [1950] SCR 124 Russell v The Queen (1882) 7 AC 829 (PC) Toronto Electric Commissioners v Snider [1925] AC 396

India R v Burah and another [1878] UKPC 1 (1878) LR 3 AC 889 (PC) Soundararajan and others v CM Natarajan and others (1921) 40 MW 354 TM Kanniyan v Income-Tax Officer, Pondicherry AIR 637 1968 SCR (2) 103

Nigeria Abacha v Fawehinmi (2000) 6 NWLR (Pt 660) Abraham Adesanya v President of the Federal Republic of Nigeria and another (1981) 2 NCLR 358 Adenrele Adejumo and Nigerian Construction Co Ltd v Colonel Mobolaji Johnson (1972) 1 All NLR 159 Alhaji Sule Agbetoba v Lagos State Executive Council (1991) 4 NWLR (Pt 188) Attorney-General of Abia and 35 others v Attorney-General of the Federation (2002) 3 SC 106 Attorney-General of Abia State and 2 others v Attorney-General of the Federation and 33 others (2006) 7 NILR 71 Attorney-General of Lagos State v Attorney-General of the Federation and 35 others (2003) 6 SC (Pt I) 24 Attorney-General of Ondo State and another v Victor Adegoke Adewunmi (1988) All NLR 274 Attorney-General of Ondo State v Attorney-General of the Federation and 35 others (2002) 6 SC (Pt I) 1 Attorney-General of Southern Nigeria v John Holt and Company (Liverpool) Limited and others [1915] AC 1 Attorney-General of the Federation v Attorney-General of Abia and 35 others (2002) 4 SC (Pt I) 1

xiv  Colonial and Post-Colonial Constitutionalism in the Commonwealth Attorney-General, Ogun State v Aberuagba (2002) Vol 22 WRN 52 EO Lakanmi and Kikelomo Ola v Attorney-General (Western State), the Secretary to the Tribunal (Investigation of Assets Tribunal) and the Counsel to the Tribunal (1971) University of Ife Law Reports 201 Eshugbayi Eleko v Officer Administrating the Government of Nigeria and another [1931] UKPC 37 Eze Lambert Okoye Akuneziri v Chief PDC Okenwa and 3 others Suit No: SC.126/97.

South Africa (and its allied territories) Cassim and Solomon v The State (1892) 9 Cape Law Journal 58 Chief Tshekedi Khama v Simon Ratshosa and another (1932) 145 Law Times 657 Joyi v Minister of Bantu Administration and Development 1961 (1) SA 210 (C) Mabe v Minister for Native Affairs 1958 (2) SA 506 (T) Minister of Interior (1952) 2 SA 428 Minister of Justice; Diamond v Minister of Justice (Sachs) (1934) AD 11 Minister of the Interior and another v Harris and others 1952 (4) SA 769 (A) Monnakale and others v Government of Bophuthatswana and others (1991) (1) SA 589 Mulaudzi and other v Chairman, Implementation Committee and others 1995 (1) SA 513 (V) R v Heyns and others (1959) (3) SA 634 (A) R v McChlery (1912) AD 199 Re: Authority of Parliament in Relation to the Upper House (1980) 1 SCR 54 Rex v Maloi (1950) (1) SA 749 (O) Rhodesia Railways and others v Commissioner of Taxes (1925) AD 438 S v Tuhadeleni and others 1969 (1) SA 153 Sobhuza II v Miller and others [1926] AC 518 Winter and others v Administrator-in-Executive Committee and another (1973) (1) SA 873 (A)

United Kingdom (and its territories) Burmah Oil Co Ltd v Lord Advocate [1965] AC 75 Campbell v Hall (1774) 1 Cowp 274 Chagos Islanders v Attorney-General, Her Majesty’s British Indian Ocean Territory Commissioner [2003] EWHC 2222 (QB) Chagos Islanders v United Kingdom Application No 35622/04 Christian and others v The Queen [2007] 2 AC 400 Council of Civil Service Unions and others v Minister for the Civil Service [1984] 3 WLR 1174 Duffy v Ministry of Labour and National Insurance [1962] NI 6 Entick v Carrington (1765) 19 State Tr 1030 Gallagher v Lynn [1937] AC 863 (HL) Ibralebbe and another v R [1963] AC 900 Imperial Tobacco Limited v Lord Advocate [2012] CSIH 9

Table of cases xv R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs [2001] QB 1067 R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs [2006] EWHC 1038 (Admin) R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 2) [2007] EWCA Civ 498 R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs [2009] 1 AC 453 R (Jackson) v Attorney-General [2005] EWCA Civ 126 R v Lord Chancellor ex parte Witham [1998] QB 575 R v Secretary of State for the Home Department ex parte Bancoult CO/3775/98 (unreported judgment of the Queen’s Bench Division, 3 March 1999) Reg (Hume) v Londonderry Justices [1972] NI 91 Reg v Toohey ex parte Northern Land Council (1981) 151 CLR 170 Rex v Gallagher [1936] NI 131 Secretary of State for the Foreign and Commonwealth Affairs v R (Bancoult) [2008] QB 365

Other Commonwealth jurisdictions Attorney-General v John Joseph Akar Civ App 1/68, judgment delivered on 5 April 1968 Bribery Commissioner v Ranasinghe [1965] AC 172 John Joseph Akar v Attorney-General CC 58/67 John Joseph Akar v Attorney-General of Sierra Leone [1969] UKPC 13 Madzimbamuto v Lardner-Burke [1968] 3 All ER 561 (PC)

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Introduction

The Commonwealth1 boasts the common law legal tradition, easily the most dominant of the leading international legal systems today; spreading from North America to Singapore and from India to South Africa. The ‘peace, order and good government’ (POGG) clause is a common feature of considerable vintage in Commonwealth constitutions. With its origins in the royal prerogative of the British monarch, the POGG clause has been a considerably versatile and ubiquitous clause in Commonwealth constitutionalism. It is, as Lord Hoffmann stated, ‘the traditional formula by which legislative powers are conferred upon the legislature of a colony or a former colony upon the attainment of independence’.2 The origins of the POGG clause in an anachronistic feature of British constitutionalism marks it out as a constitutional element that ought to be critically interrogated in an age of human rights and democracy. Significantly, in R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (Bancoult No 2)3 Sedley LJ, in the Court of Appeal, observed that: The phrase ‘peace, order and good government’, which has a long legislative pedigree, has become a term of art in the sense that it is regularly used without further explanation to denote the delegation of large but undefined powers to a nominated rule-maker. Since at its fullest it can bring about the creation of independent states, it is a power of the greatest importance carrying commensurate responsibilities. The POGG power has played an important role in colonial and post-colonial constitutionalism as it has had not only a legal but also political and historical significance in various jurisdictions in the Commonwealth. It has, for instance, been regarded as a key expression of Canadian socio-political life. A former Canadian Prime Minister has advocated for it to be taken as the mainstay of Canadian foreign policy. In 2001, POGG also featured prominently during the centenary celebration of the Australian federation where, among others, it formed the theme of the Senate exhibition to commemorate the inauguration of the First Parliament of the Commonwealth of Australia in 1901. A collection of speeches delivered at the launch of the exhibition was aptly titled For Peace, Order, and Good Government: the Centenary of the Parliament of the Commonwealth of Australia.4 In much

2  Colonial and Post-Colonial Constitutionalism in the Commonwealth unrelated circumstances, in Nigeria (and some other parts of the Commonwealth) ‘peace, order and good government’ hallmarked military legislation which abrogated or curtailed fundamental constitutional rights, completely subordinated the Constitution to military fiat, or at the least, critically hollowed out its provisions in favour of authoritarian military ‘legislation’ for the better part of three decades in its post-colonial period. In South Africa, it was a subtle but nonetheless effective part of the legal stratagem of apartheid regimes for legalising segregation, internal displacement and deportation. Despite its ubiquitous nature and its continued deployment for a variety of purposes in Commonwealth jurisdictions, the POGG clause remains a relatively under-theorised and under-researched theme. Existing analyses have tended generally to take for granted the appropriateness of the POGG clause itself while critiquing political application and judicial interpretation of it. The nature of the power, its objects and limits has been the subject of considerable judicial interpretation in Commonwealth jurisdictions. This justifies much more comprehensive, comparative or, at least, cross-jurisdictional analysis than currently exists in the literature on Commonwealth constitutionalism. The POGG clause has continued to wax strong in the constitutions and, in some cases, legislation of Commonwealth countries. In the United Kingdom, POGG had constitutional application in Northern Ireland from 1921–1972. Significantly too, it also featured in some legislation in England and Wales to where this book traces its origins. Of relevance is the fact that the UK’s judicial institutions (especially the Judicial Committee of the Privy Council, but also – before its demise – the House of Lords) have, not surprisingly, played a pivotal role in the interpretation and controversial application of the POGG clause. The constitutions or constitutional arrangements of most federal and even some unitary countries contain a general power conferred on the legislature (or, in some instances, the head of government, state or province, as in India and pre-1994 South Africa)5 to make laws for the ‘peace, order and good government’ of the whole country or a province, region or state within it. In countries like Canada, Australia and Nigeria, there is a well-established legislative practice of denoting the residual jurisdiction through POGG in the usually contested division of subject heads of power between national and subnational units. As a result, the interpretation of the POGG clause has been central to moderating contending jurisdictional claims in such countries. This practice contributes considerably to its versatility in both constitutionally sophisticated, advanced democratic countries and in less sophisticated and even semi-authoritarian or, at best, ­democratising states in the Commonwealth. The foregoing justifies a cross-jurisdictional analysis. The analyses in this book focuses mainly on six key Commonwealth jurisdictions: Australia, Canada, India, Nigeria, South Africa and United Kingdom (and the United States as part of the British North American colonies but not the Commonwealth). This book traces the history, judicial interpretation and political application of the clause as a constitutive and statutory provision. The inquiry shows that the POGG clause has relevance in a number of significant aspects of legal and socio-political ordering

Introduction 3 across the Commonwealth. This book explores how the POGG clause has been used not only as a moderating mechanism for resolving jurisdictional disputes in Commonwealth federations, attribution of emergency powers and review of administrative action, but also to further the designs of colonialism, authoritarianism and apartheid. Critical analysis of the POGG clause presents a paradox. There is, on the one hand, the deployment of the POGG clause to promote (presumably) liberal democratic values of (even if, initially, limited) self-government, consociation of elite power and public welfare and, on the other hand, its application to further opposing values of authoritarianism and apartheid. A major reason for that paradox, this study argues, is the imperial origins of the clause. Notwithstanding its imperial origins, the POGG clause has remained considerably resilient and remained, with few exceptions, in Commonwealth constitutions for over a century in some cases. One of the last decisions of the House of Lords, R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs,6 highlights the significance of a surviving power crafted in a pre-democratic age. This book argues that the paradox of the POGG clause justifies a case for change in its application and judicial interpretation.

A few words on literature and style It will be obvious to any reader of this book that despite the cross-jurisdictional focus, there are more references to Canadian literature and materials, primary and secondary, in advancing the discussion in various parts of this book than any other Commonwealth jurisdiction. There are two reasons for this. The first is purely functional. It is the fact that there are easily more Canadian cases than in any jurisdiction and Canadian authors have been the most prolific on evaluating POGG as a concept. Thus, the jurisdiction has the most extensive literature on all the perspectives of interest in this book: legal history, constitutional law and politics. The second derives from the crucial position of the doctrine of precedent in the common law system. This is particularly significant when it converges with the de facto ‘supreme tribunal’ of the British Empire role of the Judicial Committee of the Privy Council (JCPC). The influence and impact of the JCPC, as will be discussed throughout this book, is writ large in Commonwealth constitutionalism and this still remains the case for a number of Commonwealth countries or territories. In any event, a major consequence of the convergence is that some early Canadian cases, as highlighted in various parts of this book, have remained the most influential in fixing the conventional (some would claim ‘originalist’) notions of POGG from the colonial period to the present day. It is also relevant to say a few words about the presentational style of this book. The reader may find that there are a fair number of quotes in the book; this is deliberate. I consider it appropriate to provide direct quotes from a number of primary materials, a good number of which are referenced in this book for two key reasons. First is the fact that a reasonable part of the book is concerned with the history of ‘peace, order [welfare] and good government’ in the Commonwealth,

4  Colonial and Post-Colonial Constitutionalism in the Commonwealth which to my mind requires taking the reader through the instruments which constitute the sources of its introduction across the British Empire and allowing them to ‘speak for themselves’. More importantly, the ‘orthodox’ legal position on the meaning of POGG is assumed, indeed claimed, to flow from historiographical accounts of its introduction and application. That claim is directly challenged in this book. Among others, I present a counter argument to the originalist account of POGG as ‘a term of art’ that means a plenary grant of power in a style that allows the reader to form an opinion based on access to archival and historical sources – political, social and legal – relevant to the introduction and development of the clause. These are mainly imperial instruments that have been commonly alluded to in scholarly and judicial discussions of the clause but are scarcely ever directly allowed to speak for themselves. Indeed, the picture that emerges from a survey of scholarly and judicial discussion of the POGG clause has been mainly one that can be described as ‘legal recycling’. By this I mean constant reference to a closed circle of cases which are hardly interrogated as to their actual facts and ratios for (re) stating what is considered to be the settled position on ‘peace, order [welfare] and good g­ overnment’ in the Commonwealth. To set the tone for the need to cast a closer look at the meaning of the POGG clause, I have taken a detailed look at the facts of the four most popular cases on the clause; R v Burah and another,7 Russell v The Queen,8 Hodge v Queen,9 and Louis Riel v The Queen ex parte Riel10 in the hope that any irritation that may be occasioned thereby is hopefully overshadowed by a fresh attempt to capture the essence of the cases in their context. Finally, it is relevant to point out that I have tried as much as possible (I suspect without complete success however) to retain the style of reference to judicial officers in the respective jurisdictions as reflected in law reports and relevant academic literature.

Notes   1 Commonwealth countries are: Antigua and Barbuda, Australia, Bahamas, Bangladesh, Barbados, Belize, Botswana, Brunei, Cameroon, Canada, Cyprus, Dominica, Gambia, Ghana, Grenada, Guyana, India, Jamaica, Kenya, Kiribati, Lesotho, Malawi, Malaysia, Maldives, Malta, Mauritius, Mozambique, Namibia, Nauru, New Zealand, Nigeria, Pakistan, Papua New Guinea, Rwanda, Saint Kitts and Nevis, Saint Lucia, Saint Vincent and the Grenadines, Samoa, Seychelles, Sierra Leone, Singapore, Solomon Islands, South Africa, Sri Lanka, Swaziland, Tanzania, Tonga, Trinidad and Tobago, Tuvalu, Uganda, United Kingdom, Vanuatu and Zambia.  2 R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs [2009] 1 AC 453 at [46], per Lord Hoffmann.   3 [2007] EWCA Civ 498 at [50].   4 Kay Walsh (ed.), For Peace, Order, and Good Government: the Centenary of the Parliament of the Commonwealth of Australia (Department of the Senate, Canberra, 2001).   5 It is interesting to note in this regard that despite the fact that the Indian Constitution contains the POGG power (and its variant formulations including ‘peace and good government’), the Constitution of Pakistan, following its partitioning from India, did not contain the power.   6 [2009] 1 AC 453.

Introduction 5   7   8   9 10

[1878] UKPC 1 (1878) LR 3 AC 889 (PC). (1882) 7 AC 829 (PC). (1883) LR 9 AC 117 (PC). (1887) LR 10 AC 675 (PC).

1 Peace, order and good government – origin, development and meaning of a power

The ‘peace, order and good government’ (POGG) clause has always been paradoxical in Commonwealth constitutionalism. POGG has been used for the dual purpose of furthering British imperialism (to facilitate direct or indirect control and governance of its overseas possessions) as well as to grant powers of self-rule (and later independence) at some point, to various parts of the British Empire. Variations of POGG had been included in instruments issued by British monarchs to patentees who sought to colonise new lands in different parts of the world in the name of the British Empire as far back as the early sixteenth century. It had also been included in instruments conferring powers on colonial governors for administration of British colonies at least as far back as the early part of the seventeenth century. However, introduction of the POGG clause into the sociopolitical and legal ordering in the British Empire dates even earlier. The chapters that follow analyse the POGG power in the specific contexts of Canada, Australia, Nigeria, South Africa and the United Kingdom. This chapter provides a general account of the history and meaning of the POGG clause in Commonwealth constitutional ordering extending the inquiry to India and what is now the United States (as part of the British North American Colonies, along with Newfoundland and Canada, then separate territories). The brief account here provides a sense of the origins of the clause. The account is not a chronological history of the introduction or application of ‘peace, order and good government’ or, for that matter, ‘peace welfare and good government’, which, as will be seen, predates it. It is not clear that precision on the specific origins of the clause is possible, desirable as it may be from a historical point of view. Moreover, a chronological account is provided in the specific context of the main jurisdictions considered in this study to guide the discussion of the development, dimensions and inherent paradoxes generated by the power. The POGG clause is no doubt a creation of British imperialism to facilitate direct or indirect control and governance of its overseas possessions.1 Colonial officers (usually ‘governors’) were appointed and ‘legislatures’ were gradually created to further this objective. Such legislatures were established either pursuant to an Act of Parliament or by an Order in Council, this latter being an exercise of the royal prerogative of the British Crown. As the Court of Appeal (England and Wales) noted in R (Jackson) v Attorney General 2 (‘Jackson’), the respective imperial

Peace, order and good government 7 instrument establishing the legislature defined its legislative powers and these often included ‘a power to make laws for the peace, welfare and good government of the Colony in all cases whatsoever’. This power was subject only to certain restrictions as to the manner of exercising it.3 The discussion in this introductory chapter focuses essentially on how, from the perspective of Commonwealth socio-legal history, the clause is closely connected to colonial dispossession of indigenous lands in the formation of the British Empire. What follows is a descriptive outline, rather than a linear account of the origin and development of the phrase from England and subsequent transmission to the British Empire and the Commonwealth. The first part of the chapter traces the origins of the POGG clause back to the British Isles. It is logical to assume that this particular legacy of British colonialism has its roots in the English system, however obscure that may now seem in the context of contemporary British constitutionalism. What is not in doubt is that the royal prerogative is intrinsically linked to the introduction and application of the POGG clause in the British Isles, the British Empire and, subsequently, the Commonwealth. That connection is also plumbed in this part. The second part considers the two main strands of the POGG clause through its historical origins. The first strand was in the form of imperial legislation which asserted British take-over and control of different lands all over the world. The second strand is the gradual conferral of legislative authority on local legislatures to facilitate limited rule in different colonies of the Commonwealth. The third part of the discussion briefly highlights four cases which are the most cited and effectively loci classici to which courts all over the Commonwealth refer as authority for their interpretation of POGG. One of the cases is discussed fully here and the three others in Chapter 2. It will be argued that these cases do not actually provide the basis for the prevailing interpretation of the clause. Rather, the prevailing meaning of POGG has come mostly from a long-standing unquestioning attitude on the part of judges steeped in the traditions of the common law system of precedent-following more than anything else.

Peace, order and good government – isles to empire and beyond British Isles It is trite that the POGG power is today not considered to be part of British con­ stitutional law. However, Frederick Madden and David Fieldhouse have stated that ‘the English medieval empire was the seedbed of forms used later’.4 In view of this, the ‘seedbed’ of POGG likely lays somewhere in English constitutional history or at least in its socio-political ordering. Indeed, based on what is admittedly a less than systematic and rather cursory investigation of relevant historical documents, it is nonetheless suggested that there is reasonable evidence that the POGG clause has not just its origins, but even more importantly its application, in England. Archivist accounts indicate that the earliest references to what came to be

8  Colonial and Post-Colonial Constitutionalism in the Commonwealth recast as ‘peace, welfare and good government’ and then ‘peace, order and good government’ may be traced back to the Justices Act 1489.5 In fifteenth-century England, the Tudor rulers instituted a system of local government that came to rely essentially on the existing office of the Justices of the Peace; a form of local magistracy. The Justices Act 1489 redefined the longstanding office and role of Justices of the Peace. The need to ‘recast’ the role of the Justice of the Peace came from the realisation that their much expanded functions both as judges and administrators were not clearly expressed in their Commissions (appointing instruments).6 In his De Republica Anglorumi,7 Sir Thomas Smith provides an insight into the duties of the Justices of the Peace in the sixteenth century.8 The rulers reposed much confidence in Justices for local administration, and their commissions included, among other duties, the repression of ‘robbers, thieves, and vagabonds … riots and violences (sic), and all other misdemeanours in the commonwealth’.9 Every Justice of the Peace had authority to commit any person(s) to prison pending trial on allegations of ‘theft, robbery, manslaughter, murder, violence, complots, riots, unlawful games, or any such disturbance of the peace and quiet of the realm’.10 The trial was, of course, by the Justices of the Peace since they were some form of local magistracy in addition to being administrators.11 However, perhaps partly due to a wage system which did not match the level of responsibilities12 but certainly a reflection of the social conditions of the time, the Justices of the Peace became notorious for corruption and gross abuses of power. Henry VII felt compelled to restate, by public proclamation, the duties of the Justices of the Peace. He also provided remedies for the aggrieved against the Justices’ abuse of power as part of a series of measures to reform the justice system in particular and public administration in general.13 Relevant to our discussion here is the Justices of the Peace Act 1489,14 which stated that: The King our Sovereign Lord considereth that by the negligence and misdemeaning, favour, and other inordinate causes of the Justice of Peace in every shire of this realm, the laws and ordinances made for the politic weal, peace, and good rule of the same, and for perfect security and restful living of his subjects of the same, be not duly executed according to the tenor and effect that they were made and ordained for.15 To be sure, the references are to politic weal, peace and good rule and not ‘peace, order and good government’. However, it is possible to argue that ‘politic weal’ refers to ‘welfare’ and ‘good rule’ later evolved and was transmitted into instruments of governance in the Empire as ‘good government’. This is suggested by the context of the words in the foregoing quote and the earliest instances of grant of legislative and governance powers to parts of the Empire. Similar words are mentioned in the Statute of Proclamations 1539,16 passed under the hand of Henry VIII to enact that ‘proclamations made by the King shall be obeyed’. Section 1 provided in part that the King, with the advice of his honourable Council, found it necessary to:

Peace, order and good government 9 make and set forth proclamations for the good and politic order and governance of this his realm of England, Wales, and other his dominions from time to time for the defence of his regal dignity and the advancement of his common wealth and good quiet of his people, as the cases of necessity shall require.17 Such proclamations, made by the King with the advice of his Council, were to be obeyed as if they had been made by Parliament. It is interesting to note here how close the Statute of Proclamations is to colonial legislation based on prerogative power, requiring unquestioned obedience and submission to sovereignty of the Crown. Subsequently, the clause appears to have gone through a process of linguistic transformation, no doubt in response to the need to develop mechanisms for managing the expanding frontiers of the realm. That process of linguistic transformation and development can be observed in the language of the instruments and documents, especially letters patents18 that were issued to representatives of the British monarch in different parts of the ‘New World’. A mapping of the process of linguistic transformation is evident in the grant of powers of government to the colonists in the North American colonies (comprising parts of modern day United States and Canada). North America While the United States never became a formal part of the Commonwealth, its connections with the British Empire inexorably drew it into not just the common law heritage, but also the colonial deployment of the POGG power fairly early on its constitutional odyssey. It is a fact that on 4 July 1776, 13 (of over 30) British North American colonies, which had been at war with Britain from 1775, declared their independence from the Crown and the British Empire and from there emerged the United States.19 That action is perhaps the principal reason why, today, it may seem arcane to look in the direction of the United States in the context of a discussion of an important clause in Commonwealth constitutionalism. However, imperial political history tells us that even after its independence, it was still thought in some quarters that the United States, alongside then subsisting British colonies in North America, be considered part of the ‘Commonwealth’. Thus, writing about the ‘American troubles’ in 1778,20 David Williams stated that ‘The British commonwealth (for I will still include America in that idea)21 is divided into several parts, which may be considered as the several branches of the same family’.22 Interestingly, the term ‘Commonwealth’ was appropriated as the official designation of four states in the United States: Massachusetts, Pennsylvania, Virginia and Kentucky.23 Moreover, as Mary Bilder points out in her account of the English settlement and establishment of the institutions of local governance in what is now the United States, the delegation of governmental powers and pre-occupation with institution building predated actual settlement by the colonists in the ‘New World’. Relevant

10  Colonial and Post-Colonial Constitutionalism in the Commonwealth to the discourse in this book, there is in testimony ‘a vast record’ of legal and nonlegal instruments and documents, charters, letters patent, and correspondence, among settlers, Crown officials and investors.24 The POGG clause, in its evolution, development and transmission is, not surprisingly, an important feature of those instruments and documents. Remarkably, the transmission of the POGG clause from the British Isles to the British Empire appeared to have occurred, or at least accelerated, during Henry VII’s reign and within seven years of the enactment of the Justices of the Peace Act 1489. On 5 March 1496 Henry VII issued to Giovanni Cabotto, John Cabot, the first English letters patent for acquisition of land in North America.25 This brief document gave only implied powers of governance to John Cabot. It is thus not surprising that there was no mention of powers of POGG in any of its variations. In this way, it contrasted significantly with similar subsequent instruments issued to his fellow Bristol merchants26 and other prospects for ‘trade’ and ‘discovery’ of new lands ‘north, south, east and west’ who soon followed his example. One such letters patent was issued on 19 March 1501 by Henry VII to three Bristol merchants: Richard Warde, Thomas Ashurst and John Thomas, along with three Portuguese merchants: John Fernandez, Francis Fernandez and John Gonzales (‘of the Azores’) following their joint petition. It provided inter alia that the King had given licence and granted to them: full power and authority to rule and govern all and singular the men, sailors and other persons removing and making their way for the aforesaid purpose to the islands, countries, provinces, mainlands and places before-mentioned … after they have been found and recovered, and to make, set up, ordain and appoint laws, ordinances, statutes and proclamations for the good and peaceful rule and government of the said men, masters, sailors and other persons aforesaid, and also to issue proclamations to chastise and punish according to the laws and statutes set up by them in that region.27 Two years later, Henry VII revoked this 1501 commission. He granted, in its stead, a fresh commission through letters patent to Hugh Eliot, Thomas Ashurst, John Gonzales and Francis Fernandez conferring on them the power inter alia to rule the areas they were able to ‘discover’ that were not under any ‘Christian’ ruler and ‘to make, set up, ordain and appoint laws, ordinances, statutes and proclamations for the good and peaceful rule and government’ of such acquisitions.28 In the First Charter of Virginia granted by James I in 1606 to Sir Thomas Gates and other ‘Suitors’ for the establishment of a colony in Virginia, there is recognition of the desire for a ‘settled and quiet Government’ in that part of America.29 Consider also the letters patent issued by James I to Sir George Calvert for establishing ‘Avalon’ in Newfoundland in 1623.30 Further to purchasing a ‘certain Region’ in Newfoundland ‘with a laudable and pious zeal to enlarge the extent of the Christian world’ and the British Empire, Sir George Calvert had requested to be granted authority to transport some English citizens to the land and form a colony. As a result, he further sought ‘certain Privileges and Jurisdictions requisite

Peace, order and good government 11 for the good Government and State of the said Colony and Territory’. James I granted him and ‘his Heirs and Assigns for ever’: free full and absolute power … for the good and happy Government of the said Province to Ordain, make, enact, and under his and their seals, to publish any laws whatsoever appertaining either unto the public state of the said Province … according unto their best discretions, by and with the Advice, consent and approbation of the Freeholders, of the said province or the greater part of them.31 Notice the reference not just to ‘good government’ but also to ‘good and happy government’, the latter tending to suggest ‘welfare’ and ‘well-being’ of the general public, a point to which we return later.32 Sir Calvert’s trade and colonisation mission actually built on the landmark foray earlier made to the coasts of North America by Sir Harry Gilbert to plant an English colony there. Sir Gilbert had been granted letters patent by Queen Elizabeth in 1578.33 On the strength of the letters patent, Sir Gilbert annexed Newfoundland on his second attempt in 1583, which was also his last.34 The instrument granted him, his heirs and assigns ‘full and meere power and authoritie to correct, punish, pardon, governe and rule by their, and every or any of their good discretions and policies … according to such statutes, lawes and ordinances’ they devised ‘for the better governement of the said people as aforesaid’. The letters patent contained the customary constitutional limitation of the requirement that such laws be ‘as neere as conveniently may, agreeable’ to the laws and policy of England. Sir Gilbert and his successors were to further ensure that the laws were not contrary to ‘the true Christian faith or religion now professed in the Church of England’ and loyalty of the subjects to the English Crown as sovereign in the colonies. Similarly, in constituting the Province of Carolina based on the ‘fullness’ of ‘royal power and prerogative’ in 1663, Charles II granted a Charter to Edward, Earl of Clarendon and seven others over Carolina.35 The group had sought jurisdiction over and powers ‘for the good government and safety’36 of the American territory. In the letters patent, Charles II conferred on them: full and absolute power … for the good and happy Government of the said Province, to ordain, make, enact and under their seals to publish any laws whatsoever either appertaining to the publick state of the said Province, or to the private utility of particular persons.37 This was to be done in consultation with the advice, ‘assent and approbation of the freemen of the said province, or of the greater part of them, or of their delegates or deputies’. In other words, the colonists were to have a voice in their own governance. However, since constituting an assembly of this nature would take some time, Edward and his fellows were further granted the powers to make laws for the ‘peace and better government’ of the colony in the meantime. They were authorised to make ‘fit and wholesome orders and ordinances’, for ‘keeping of the

12  Colonial and Post-Colonial Constitutionalism in the Commonwealth peace, as for the better government of the people there abiding’ with the main restriction on such laws being non-repugnance with the laws of England. The tenor of the language used here can also be found in many other instances. In 1627, James Earle of Carlisle was granted power38 to make laws ‘for the keeping of the peace, as for ye better government of the people’, which were as far as possible agreeable to the laws of England.39 James I had also granted powers to the Legislative Council in Virginia (in what is now the United States of America) ‘for the good government of the people to be planted in those parts’ in terms as close as possible to ‘the common laws of England and the equity thereof’.40 The grant of powers, by Charles I in 1632, to Caecillius Baron of Baltimore to ‘­transport … a numerous Colony of the English Nation’ to what is now Maryland for establishing a colony there equally referred to an intention to conserve ‘the Peace and better Government’ of the colony.41 In 1637, Charles I granted the Marquis of Hamilton and others42 ‘full and free liberty, power & authority … for the good, happy and peaceable Government of Newfoundland aforesaid, and the Inhabitants thereof, To erect, make and enact any laws whatsoever’.43 The Royal Commission granted to Thomas Lord Windsor as Governor of Jamaica in 166144 stated his powers to make laws for the ‘good government’ of the island in line with the practice in other plantations.45 His ‘Instructions’ issued eight months later,46 further spoke about his powers (with the advice of a nominated council) to ‘call assemblies’ together to make laws in accordance with the custom of the plantation and impose taxes as best conduced to the interests of the Crown and ‘the good and welfare’ of its subjects.47 The language of ‘peace, welfare and good government’ had fully emerged by 1686. In James II’s Commission to Governor Thomas Dongan of New York,48 Dongan was granted ‘full power and Authority with the Advice and consent’ of a legislative council or majority of the members ‘to make, constitute and ordain Laws, Statutes, and Ordinances for the publick peace, welfare and good government of our said Province and of the people and inhabitants’ of it.49 Interestingly, only three years earlier, his ‘Instructions’50 had directed him to constitute a General Assembly to consult with him on appropriate laws to be made for the ‘good weale and government of the said Colony [of New York]’ and the General Assembly was to have all the ‘liberty to consult and debate among themselves … for laws for the good government of the said Colony’.51 Just as in the case of Carolina, Charles II, on petition from John Clarke and others, granted them powers in 1663 to administer Rhode Island and Providence Plantations to spread Christianity in the colony and convert ‘ignorant Indian tribes’. The legislative powers of the governor and his assistants were to be deployed for the peaceable and orderly government of the American territory.52 William Penn was also granted ‘full and absolute powers’ for the ‘good and happy government’ of Pennsylvania the next year by Charles II.53 The 1701 Charter of Delaware similarly refers to furthering ‘Well-being and good Government’ of the province further to the powers granted by Charles II to William Penn in 1680.54

Peace, order and good government 13 India However, perhaps by far the closest connection between the early beginnings of the POGG clause as politic weal, peace and good rule in the Justices Act is provided by the variants of the power in the Indian jurisdiction. In India’s foundational and current constitutional documents and instruments, the power is provided not only in the standard form of ‘peace, order and good government’, but also as ‘peace and good government’55 as well as ‘peace, progress and good government’.56 Here, it is easier to see the close link and transformation in language between ‘peace and good rule’ and ‘peace and good government’. The application of POGG was indirectly introduced to India through the 1600 Charter (‘Founding Charter’) of ‘The Governor and Company of Merchants of London, Trading into the East-Indies’ (‘the East Indian Company’). The Founding Charter of the East Indian Company was granted by Elizabeth I on 31 December 1600 for 15 years in the first instance, but this was later made perpetual by James I in 1609.57 The East Indian Company carried forward British commercial quest and, later, political control and colonisation of the subcontinent.58 It was granted monopoly over all British trade with Asia as well as political authority of a ‘semi-sovereign’ nature that constituted it into a political authority over India and even far beyond.59 The Founding Charter gave the East Indian Company powers of ‘jurisdiction and government’, taxation of factories, as well as defence and treaty-making on behalf of the British Crown.60 Even more germane to this discourse, the Founding Charter provided that it was ‘lawful’ for the governor and the Company (the 24 directors annually appointed to manage its affairs and listed in the Charter) ‘to make ordain and constitute such, and so many reasonable Laws, Constitutions, Orders and Ordinances’ which ‘shall seem necessary and convenient, for the good Government of the same Company’ in carrying out its trading objects.61 The laws were not to be repugnant to the laws of England. At least implicit in the provisions was the understanding that such laws would apply to those territories with which the Company would be trading. If it was at all in doubt that the East Indian Company’s jurisdiction as conferred by the Founding Charter was meant to extend to others than its directors and employees, the further Charter of 1661 granted to the Company by Charles II dispelled such doubt. The 1661 Charter, contained in letters patent, not only ratified the Founding Charter but contained similar provisions.62 It went further to confer power on the Company ‘to judge all persons belonging to the said governor and company or that shall live under them’.63 The Laws of England were also to be applied by the Company ‘in all causes, whether civil or criminal’.64 In effect, the 1661 Charter gave the company the power to make laws for the ‘good government’ of the Company and for the purposes of its trade in any place covered by the Charter not only as long as those laws were not repugnant to the laws of England as provided for in the 1600 Charter, but also in accordance with English laws. The Company, which ruled India on trust for the British Crown by virtue of the Charters, was like no other, and it grew into the ‘largest and most

14  Colonial and Post-Colonial Constitutionalism in the Commonwealth prosperous the world has ever seen’.65 For a long time, it was synonymous with British presence and rule in the Indian subcontinent. During the first period of its activities from 1617, when it gained a commercial foothold in India, until around the middle of the eighteenth century, the East Indian Company mainly faced its trading activities.66 However, by the mid-eighteenth century, the Mughal Empire was in serious decline. The erstwhile powerful imperial viceroy had become weak and his empire was fast disintegrating. The Company found itself in a position where it had to prop up the Mughal rulers and play one ruler against another to extend and maintain its influence. By 1687, the Company was already planning to take over the whole of India.67 The Company eventually came into full time administration of large parts of the subcontinent from 1757 following the victory of the British forces at the Battle of Plassey.68 Initially, the Company developed a system of rules through the creation of an informal British Raj,69 which did not support either of the competing Muslim or Hindu rulers. However, widespread corruption, high-handedness,70 Christian proselytisation and lack of circumspection in relation to religious and cultural values of the local communities by the Company’s officials71 led to local agitation and the 1857 Indian (Sepoy) Mutiny or the First War of Independence.72 The Company’s violent suppression of the revolt attracted condemnation at home and led to the eventual termination of its agency mandate. Described as ‘the largest and most threatening rebellion in the history of the nineteenth-century British Empire’73 the fallout of the mutiny eventually brought an end to the Company’s rule in India, its nationalisation and eventual demise. The British government enacted the Government of India Act 1858 (‘India Act 1858’),74 which terminated the political authority of the Company and disbanded it. The India Act 1858 vested the territories of India which the Company had held in trust in the British Crown and declared that, henceforth, India was to be governed by and in the name of the Queen.75 The Company ceased to exist from 1874.76 The administration, on behalf of the Queen, was to be carried on by a viceroy under the supervision of a Principal Secretary of State.77 Conscious of the strong feelings of cultural insensitivity on the part of the Company’s officials and the role this played in provoking the revolt, Queen Victoria (as Empress of India), on the takeover of the direct rule of India in 1858, promised in a proclamation to: respect the feelings of attachment with which the natives of India regard the lands inherited by them from their ancestors … to protect them in all rights connected therewith, subject to the equitable demands of the State … use that generally in framing and administering the law, due regard to the ancient rights, usages, and customs of India.78 Thus began the formal era of the British Raj – a system of direct rule of India by the imperial power.79 Interestingly, epochal as the India Act 1858 was, there was no reference in it to POGG, but it renamed the existing council through which the Company hitherto

Peace, order and good government 15 administered the country as the ‘Council of the Governor General’. Thus, it is not surprising to find, three years later, that the Indian Councils Act 186180 provided for powers of peace and good government which were conferred on the GovernorGeneral and the governors of the various presidencies and provinces of India.81 The Act was promulgated to ‘make better Provision for the Constitution of the Council of the Governor-General of India’ and for the local government of the several presidencies and provinces of the subcontinent. Section 23 provided that ‘it shall be lawful for the Governor-General, in cases of emergency, to make and promulgate from time to time ordinances for the peace and good government of the said territories or of any part thereof’. Section 42 provided for the power of the governors of the presidencies and provinces to make laws and regulations for the peace and good government of their areas subject to the provisions of the legislation. However, section 43 prohibited the governors from making laws or regulations on certain specified subjects. Further, the Governor-General in Council, by virtue of section 44, was empowered to extend the provisions of the Indian Council Act 1861 regarding the power to make laws for ‘peace and good government’ to other territories of India, namely Bengal, North West Territories and Punjab, on the Lieutenant Governor of those territories as the Governor-General deemed fit. Section 48 conferred similar powers of ‘peace and good government’ on governors and lieutenant governors of any territories that were newly constituted or created from any existing territory or territories of India under section 47 of the India Act 1861. Moreover, the India Act 187082 stated in its preamble that its purpose was to meet the expedience of the need for the Governor to be empowered to make laws and regulations for the peace and good government of some parts of the country outside the conventional meetings required for that purpose by the India Act 1860. Section 1 specifically conferred power on the Governor of a Presidency (Province) in Council, Lieutenant-Governor or Chief Commissioner to propose legislation for the peace and good government of their territory to the Secretary of State for India who, by resolution, could pass such bill into law. The GovernorGeneral in Council then publishes the law in the Gazette of India to finalise the process of enactment. Similarly, section 3 of the Government of India Act 1912 provides that it shall be lawful for the Governor-General in Council by proclamation to extend, subject to such modifications and adaptations as he may consider necessary, the provisions of the Indian Councils Acts, 1861 and Indian Councils Acts, 1909, touching on the making of laws and regulations for the peace and good government of provinces and territories. As indicated earlier, there is a connection between the POGG clause and the royal prerogative, namely that the former was introduced into Commonwealth constitutionalism by the latter. The royal prerogative, as Lord Mansfield observed in Campbell v Hall,83 constitutes the foundation of colonial governance because it was the constitutional authority for the powers of colonial governors under which the colonial legal instruments were issued. These foundational or constitutive instruments were in the forms of ‘Commissions’ and the subsidiary ‘Letters of Instructions’, as well as the Charters that were granted to individuals and

16  Colonial and Post-Colonial Constitutionalism in the Commonwealth corporations who were deployed from England or who undertook to explore the ‘New World’ under the auspices of the British monarch. For instance, in granting the First Charter of Carolina, Charles II stated that it was being done under the auspices of the royal power and prerogative. Each such Commission, as Bertram noted, was an ‘authoritative prerogative act’ with ‘legislative force’.84 The instructions that followed were meant to convey clearer guidance to colonial governors on their powers and duties as envisaged by the Commission. Together, the two constituted the constitution of the respective Crown colony.85 Southern Africa The story is the same with the extension of the British Empire into Southern Africa as demonstrated by the introduction of the clause into what became South Africa and Botswana. By virtue of a letters patent issued by Queen Victoria in 1844, the British District of Natal was annexed to the Cape.86 However, the laws of the Cape were not to be applied in Natal. Rather, the letters patent further made it ‘lawful’ for the legislature of the Cape to make laws for the peace, order and good government of Natal subject to conditions set out in it. Subsequent letters patent, one issued to the Governor of the Cape in 1845 and another in 1847, further affirmed the power of the Cape and Natal’s Legislative Council respectively to make laws for the ‘peace, order and good government’ of Natal subject to the condition that the Crown could disallow such legislation. The letters patent for instance provided that the Queen declared that the officer for the time being administering the government of the District of Natal, along with such three or more persons as should be named by Her Majesty in any instructions (subsequently issued in 1948), should constitute the Legislative Council for the District of Natal with ‘full powers to constitute and ordain all such laws and ordinances as were required for the peace, order and good government of the said District’. This was reaffirmed by the Charter of Natal (also granted by letters patent) of 15 July 1856, which separated Natal from the Cape and revoked both aforesaid letters patent. Section 6 of the Charter of Natal provided that the Governor of Natal and the Legislative Council were vested with the power to make all such laws as may be necessary for the peace, order and good government of Natal provided they are not repugnant to the laws of England. The 1882 Commission appointing a special commissioner for Zululand granted the special commissioner power to ‘take all measures’ and ‘do all such things in relation to the Native Tribes of Zululand that are lawful and advisable’ for maintaining the Colony of Natal and ‘promoting the peace, order and good government of the tribes aforesaid’. In 1885, a Commission under the Royal Sign Manual87 appointed the governor or officer for the time being administering the government of the colony of the Cape of Good Hope, as Governor of the Territory of British Bechuanaland (now Republic of Botswana). The same instrument empowered the Governor to make, by proclamation, such laws as might be deemed necessary for the peace, order and good government of the said territory. Very shortly after, pursuant to these powers, the Governor, by proclamation,88

Peace, order and good government 17 declared the laws then in force in the colony of the Cape of Good Hope to be in force, so far as applicable, in British Bechuanaland, thereby introducing RomanDutch law of the former into the latter colony.89 In 1885, the British proclaimed a Protectorate in Bechuanaland90 after reportedly making ‘arrangements’ with local chiefs in the area.91 An Order in Council of 9 May 1891 vested the land comprised in the protectorate on Queen Victoria. Section 40 of the Order in Council provided that in exercise of powers conferred on him, the High Commissioner may: from time to time by proclamation provide for the administration of justice, the raising of revenue, and generally for the peace, order and good government of all persons within the limits of this Order, including the prohibition and punishment of acts tending to disturb the public peace. Similar provisions were made for the guidance of the Governor of the Cape Colony by letters patent of 28 February 1887, only this time, unusually for the jurisdiction, it came in a variant of the power. It provided that the Governor was granted full power and authority, with the advice and consent of the Legislative Council and House of Assembly of the colony, ‘to make laws for the peace, welfare, and good government’ of the colony. It characteristically reserved the power of disallowance of legislation so made, in whole or part, to the Crown. In 1893, the Governor in Council promulgated the Natal Constitution Act by proclamation for establishing responsible government in Natal and the creation of a Legislative Assembly. Section 5 of the Act provided that it was ‘lawful’ for Queen Victoria (and her successors) ‘by and with the advice and consent’ of the Legislative Council and the newly created Legislative Assembly, ‘to make all Laws required for the peace, order and good government of the Colony of Natal’. Relatedly, section 4 of the Zululand Annexation Act92 provided that laws for the peace, order and good government of the Province of Zululand may be made by Her Majesty with the advice and consent of the Parliament of Natal, as provided in the Constitution Act of 1893 of the colony of Natal. On the conquest of the South Africa Republic (ZAR) in 1900, the Crown appointed Baron Frederick Sleigh as Administrator of the Territories comprising the ZAR by a Royal Commission dated 4 July 1900. The Royal Commission stated that Sleigh was to ‘take all such measures’ and to ‘make and enforce all such laws’ as he may deem ‘necessary for the peace, order and good government of the said Territories’. Following instructions from the Queen, on the basis of the POGG power, Sleigh, by the Proclamation for the ‘Annexation of the South Africa Republic’,93 annexed the South Africa Republic as a Dominion of the British Crown and renamed it ‘Transvaal’ on 1 September 1900. Sleigh also made legislation in respect of the Orange Free State conferring similar powers on 24 May 1900, renaming it ‘Orange River Colony’.94 At the end of the Anglo-Boer war (1899–1902), with the victory of the British over the Dutch, the British Empire constituted the Union of South Africa bringing together the Cape Colony, Transvaal, Natal and the Orange Free Country.95

18  Colonial and Post-Colonial Constitutionalism in the Commonwealth Following this process, the POGG clause made its debut in the South Africa Act of 1909 (‘the Union Act’).96 By the Proclamation of Edward VII, the Union of South Africa which was proclaimed on the 2 December 1909 took effect on 31 May 1910. Section 59 of the Union Act provided for the legislative powers of Parliament stating that ‘Parliament shall have full power to make laws for the peace, order, and good government of the Union’. Neatly tucked away in a schedule to section 151 of the Act is the weighty provision conferring powers on the Governor-General of the Union of South Africa (appointed by the Crown) to ‘make laws for the peace, order and good government’ of any new territories that may be added to the initial four colonies. The clause survived in the successive constitutions of South Africa 1961 and 1983 but not the 1993 (Interim) Constitution or the current 1996 Constitution of the country. The royal prerogative connection The close connection of the royal prerogative with the foundational instruments which typically conferred powers of POGG has been highlighted above. The relevance of the royal prerogative to the discussion of the history and meaning of POGG justifies further consideration of the royal prerogative here. As a surviving vestige of Empire, the royal prerogative is contentious and controversial. Its definition, extent and purport have been described as unclear and the most anachronistic aspect of the (unwritten) British Constitution.97 The royal prerogative has been described as ‘the black sheep’ of British constitutional structure.98 The constitutional dynamics of the royal prerogative were directly in issue in the Bancoult litigation where the courts had to critically re-examine and pronounce on its limits. The Bancoult litigation involves a number of cases which centre on the removal of the people of the Chagos Islands (‘the Ilois’) by the United Kingdom to facilitate the establishment of a military base in the Indian Ocean by the United States which is perhaps the most strategic of the over 1,000 US military bases spread outside its territory all over the world.99 Commenting on the uses of the royal prerogative in this regard and with particular reference to the decision of the House of Lords in R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (Bancoult No 2),100 Elliot and Perreau-Suassine point out that the royal prerogative power enables the executive, without reference to the British Parliament, to make laws for British colonies ‘in ruthless promotion of the interests of the United Kingdom and its allies’.101According to Poole, the royal prerogative is essentially a misfit in contemporary British constitutionalism and is ‘far removed from the modern archetype of legitimate lawmaking, which in the British polity is the act of Parliament, with all its attendant procedural and formal rigors’.102 Transplantation of any aspect of the royal prerogative into most Commonwealth constitutions cannot but be problematic. Considering its links with the royal prerogative, it is not surprising that the peace, order [welfare] and good government power from early on came to signify plenary power. To ensure that the conferral of the POGG powers on governors or local legislatures in various parts of the Empire did not thereby secure complete control of their socio-political destinies to those officials, individuals and bodies in

Peace, order and good government 19 places far away from London, the British government introduced at least three measures. One was the political accountability of colonial governors to London, another took the form of powers of reservation and the third was disallowance of legislation. These were deployed by the British government to secure continued imperial control and hegemony over British territories all over the world. The application of these powers, particularly the second and third, calls to mind the royal prerogative with its implications for executive powers of the monarch with legislative and constitutional implications. The royal prerogative, even if now a much eroded source of power,103 remains a part of British constitutionalism. However, the notion that the monarch has unfettered powers of action as originally ascribed to the royal prerogative has been described as ‘anachronistic’ in the face of political and judicial controls that have developed to limit or channel its application.104 This view was recently given strong support in the dicta of Lord Bingham in his well-considered dissenting opinion in Bancoult No 2. This is in view of the reality that what can be done under the royal prerogative has become unclear.105 The contemporary view of the royal prerogative in the United Kingdom, as the House of Lords stated in the GCHQ case, is that it is a form of power which the courts are prepared to review and, where required, impose limits on.106 However, it is essentially the pristine form of the royal prerogative, the notion that it confers unfettered powers on the monarch to carry out certain executive acts without any form of check or control, that grounds the introduction of the POGG clause in Commonwealth constitutionalism.107 On this view, the nature of the royal prerogative as applied to the introduction of the POGG clause in the Commonwealth (from a statutory and constitutional point of view) aligns with the articulation of the prerogative by Blackstone. For Blackstone, the royal prerogative is of a ‘singular and eccentrical’ nature and ‘can only be applied to those rights and capacities which the King enjoys alone, in contradistinction to others, and not to those he enjoys in common with any of his subjects’.108 The other commonly referenced definition of the royal prerogative is that of Dicey, which, according to Markesinis, came to be the most favoured by judicial authority.109 Dicey stated that the royal prerogative is ‘anterior’ to the power of the House of Common, dating back to when the King was truly sovereign with unlimited powers. The royal prerogative on this account ‘appears to be both historically and as a matter of actual fact nothing else than the residue of discretionary or arbitrary authority, which at any given time is legally left in the hands of the Crown … the prerogative is the name for the remaining portion of the Crown’s original authority [as sovereign]’.110 This definition, popular as it may be, as Lord Reid points out in Burmah Oil Co (Burma Trading) Ltd v Lord Advocate,111 does not take us far because of its imprecision. The imprecision derives from the absence of a clear-cut view of the constitutional position historically.112 Nonetheless, the royal prerogative is the constitutional foundation for the exercise of executive powers directly by the Crown or its Ministers. Consequently, ‘Every act which the executive government can lawfully do without the authority of the Act of Parliament is done in virtue of this prerogative’.113

20  Colonial and Post-Colonial Constitutionalism in the Commonwealth As a matter of political and legal history, the prevailing judicial interpretation of the POGG clause is mainly an embodiment of the pristine form of the royal prerogative, which is now considered outmoded in British constitutional practice, if not theory. This is because the POGG clause was originally introduced in Commonwealth constitutionalism in an era when the monarch was directly involved in government at the height of empire. However, the POGG power proliferated at a time when the unfettered notion of the royal prerogative was in regression. As Poole rightly observed, the POGG clause is ‘a stock phrase from the era of imperial governance’.114 A sense of the judicial conception of the nature of the power of British power in this historical context is conveyed by Chief Justice Forbes of the Supreme Court of New South Wales in Nash v Purcell.115 The King, according to Chief Justice Forbes, was, by virtue of the Constitution, ‘the fountain’ of law as well as justice.  In the discharge of this function, the British monarch may authorise colonial governors: to convene assemblies of the people, in his Colonial dominions with power to make laws for the government of his foreign subjects. This power … is now so fully recognized and settled that it may be assumed as one of the clearest prerogatives of the Crown.116 Thus, drawing on Commonwealth socio-legal history, POGG can be considered as the legitimating linchpin of colonial dispossession of indigenous lands in what came to be the British Empire. By way of illustration, in Sobhuza II v Miller and others (‘Sobhuza II’)117 the Judicial Committee of the Privy Council (JCPC)118 upheld the finding that although Swaziland was only a protectorate of the British Empire, the Crown was legally entitled to extinguish any original native title to land based on its ‘power to make laws for the peace, order and good government of Swaziland, and of all persons therein’.119 This method of imperial dispossession of land is further illustrated by the experience of the Gold Coast (now Ghana). In 1843, following agreements with Fanti Chiefs in coastal areas of the Gold Coast, the colonialists passed the British Settlements Act (BSA). Section 1 of the BSA empowered the Crown to ‘establish such laws, institutions and ordinances, and to constitute such courts and offices as may be necessary for the peace, order and good government’ of the territories concerned.120 By 1850 the Gold Coast was given its own legislative council. Typically, the remit of the legislative council was advisory to the colonial governor, who had the power to make legislation (ordinances) ‘for the peace, order and good government’ of the subjects of the Crown. This was the case because all legislative and executive powers were vested in the colonial governor, who exercised that power on behalf of the Crown.121 All over the British Empire, the imperialistic charm of the clause was and remains unmistakable, as the example of Sobhuza II shows. The notoriety of the POGG clause as an instrument for dispossession has been made more poignant by the experience of the inhabitants of the Chagos Islands. When the UK government severed the Chagos Islands from Mauritius in 1965, this development was

Peace, order and good government 21 presented as a normal administrative measure both to a sceptical United Nations and the UK Parliament.122 What the event failed to disclose was the legitimation of the depopulation of the Islands for the establishment of a military base.123 Such is the reality of the origins of the clause in Commonwealth constitutionalism and we will return to further discussion of this case of dispossession in Bancoult No 2 in Chapter 5. As will become clear in the cross-jurisdictional discussion of the judicial interpretation and application of the POGG clause in this study, some cases have featured prominently in the jurisprudence of the courts regarding the interpretation of the clause. This is essentially a feature of the common law principle of stare decisis. It is thus relevant to the discussion to consider these cases in light of how they have fixed the meaning of a power that has remained nonetheless a contentious one in Commonwealth constitutionalism for well over a century. Three of those cases, and the fourth (chronologically the first), are later examined in Chapter 2 and below respectively. At this point, discussion of the nature of the POGG clause as historically constituted facilitates further clarity.

Empire and the two strands of power There are two primary strands of the use of the ‘peace, order [welfare] and good government’ clause in the British Empire and, subsequently, the Commonwealth. One took the form of imperial legislation which sought to establish and assert British take over and control of various other societies and territories (especially kingdoms and empires) from Calcutta to Canberra and from Ontario to Lagos. Such legislative measures were made to appoint individuals as governors, commissioners or such other designation to act as administrators of colonial territories on behalf of the Crown. An example of such legislation is the South Australia Colonisation Act 1834,124 which settled that part of Australia as a colony. It provides inter alia that it was lawful for the British monarch to authorise and empower one or more residents of the province to: make ordain and establish all such laws institutions or ordinances and to constitute such courts, and appoint such officers … and to impose and levy such rates duties, and taxes as may be necessary for the peace order and good government of His Majesty’s subjects and others within the said province. An 1836 Order in Council similarly empowered the Governor to ‘constitute such courts and appoint such officers … as necessary and expedient for the peace, order and good government of the colony’.125 This latter legislation provided the legal basis for the establishment of various courts in the territory by the Governor in 1837.126 Other examples include the ‘Commission’ (as well as ‘Instructions’) issued to Governor James Murray for the administration of the Province of Quebec (Canada) in 1763 and the earlier one granted to Governor Edward Cornwallis for Nova Scotia in 1749, both of which are described and discussed later.127

22  Colonial and Post-Colonial Constitutionalism in the Commonwealth The other, equally important strand of the POGG clause, as indicated earlier, finds expression in the gradual conferral of legislative authority on local legislatures to facilitate ‘self-rule’ or ‘limited forms of local representation’,128 otherwise referred to as ‘responsible’ government in the context, while protecting colonial designs in the territories and colonies of the British Empire. As Garran stated, peace, order and good government, ‘or words nearly similar, have been used in most of the Constitutional Act passed by the Imperial Parliament, conferring local legislatures on British colonies’.129 Chief Justice John Wallis of the High Court of Madras (India) also stated, in S Soundararajan and others v CM Natarajan and others (‘Soundararajan’)130 that: The words ‘peace and good Government’ or ‘peace, order and good Government’ are to be found in the early commissions authorizing the summoning of Legislative Assemblies in the colonies as well as in the later statutes for the larger colonies, and according to their well understood meaning confer general legislative competence.131 In this regard too, Walters notes that imperial instruments ‘conferring legislative authority typically granted power to make laws for the “peace, order [or welfare], and good government” of the colony’.132 This strand of power is well-illustrated by establishment of colonial administrations in the British Leeward Islands and Grenada in the seventeenth and eighteenth centuries respectively. To take the example of Grenada, following the Treaty of Peace with the King of France ceding Grenada to Great Britain, the King of Britain made a proclamation under the Great Seal, dated 7 October 1763, for the administration of Grenada. It stated in part that the King had, by letters patent: given express power and direction to our governors of the said colonies … and we have also given power to the said governors, with the consent of our said councils, and the representatives of the people to be summoned as aforesaid, to make, constitute, and ordain laws, statutes, and ordinances, for the public peace, welfare, and good government of our said colonies and the inhabitants thereof, as near as may be agreeable to the laws of England, and under such regulations and restrictions, as are used in our other colonies. Another example is the imperial legislation which first introduced the POGG clause into Australia in 1823. It granted legislative powers for the ‘peace, welfare and good government’ of New South Wales and Van Diemen’s Land.133 Another is illustrated by the South Australia Act 1842 (SAA 1842):134 ‘An Act to Provide for the Better Government of South Australia’,135 which, among others, constituted a legislature for the colony of South Australia. It provided that ‘it shall be lawful’ for Her Majesty ‘by any commission or commissions’ issued under ‘the Great Seal of the United Kingdom’ or any other instructions ‘under Her Majesty’s Signet and Sign Manual’ issued from ‘time to time’ with the advice of the Privy Council, to constitute a legislative council consisting of the governor and at least seven other

Peace, order and good government 23 persons for the colony ‘which legislative council shall be authorized to make laws for the peace order and good government of the said colony’. The SAA 1842 also provided for the power of the monarch to ‘appoint such councillors by name or otherwise to provide for the selection and appointment’ as Her Majesty deemed fit. A similar provision is made for the power of governors to make laws for the ‘peace, welfare and good government’ of the Australian colonies in the Australian Constitution Act 1850, enacted by the imperial legislature. Section 14 of the Act states that the Governors of Victoria, Van Diemen’s Land, South Australia and Western Australia, ‘with the Advice and Consent of the Legislative Councils to be established in the said Colonies under this Act, shall have authority to make Laws for the peace, welfare, and good government of the said colonies respectively’. As indicated earlier, political and legal powers were employed by the Crown to maintain control over colonial laws made by such legislatures. These were assured through powers of reservation and disallowance, on the one hand, and judicial review (invariably with ultimate appellate jurisdiction vested in the JCPC) on the grounds of repugnancy to imperial legislation, on the other.136 Two colonial statutes often come up for mention and consideration with particular reference to the second strand of the POGG power. This is because of the extensive applicability of the two across the British Empire: the Colonial Laws Validity Act 1865 (CLVA)137 and the British Settlements Act 1887. The main effect of the CLVA, ‘An Act to Remove Doubts as to the Validity of Colonial Laws’, was to affirm the validity of laws made by the colonial legislator (individual or ‘local’ parliament) subject only to conflict with an existing imperial legislation intended to apply to that colony. The key provisions setting out the major thrust of the legislation are sections 2 and 3, which provide respectively that: 2. Any colonial law which is or shall be in any respect repugnant to the provisions of any Act of Parliament extending to the colony to which such law may relate, or repugnant to any order or regulation made under authority of such Act of Parliament, or having in the colony the force and effect of such Act, shall be read subject to such Act, order, or regulation, and shall, to the extent of such repugnancy, but not otherwise, be and remain absolutely void and inoperative. 3. No colonial law shall be or be deemed to have been void or inoperative on the ground of repugnancy to the law of England, unless the same shall be repugnant to the provisions of some such Act of Parliament, order, or ­regulation as aforesaid. The implication of these provisions and the judicial sanction given to them by the courts of the Empire is significant. One implication is that they have the effect of precluding any legal challenge to a colonial law on the ground that it is repugnant to or inconsistent with the common law. At least implicit in this is the perspective that the CLVA, as the court stated in R v Burah and another (‘Burah’),138 constitutes a conferral of power on local legislatures to make laws as best suited to

24  Colonial and Post-Colonial Constitutionalism in the Commonwealth the environment and thereby recognising both local legislative competence and, presumably, to some extent autonomy and self-government. As Lord Mance also highlighted in Bancoult No 2 (HL), ‘the very point of establishing a legislature in any kind of colony was that it should pass appropriate new laws to suit the conditions of the colony, even though the new laws were different from English law’.139 Thus, the latitude of legislative action for ‘self-government’ ostensibly constituted in the British tradition of Westminster Parliamentarianism (of accountability – ‘­responsibility’ – to the people through Parliament), was a positive development. Put in another way, self-government on this view was to be commended as precursor to self-determination, independence and sovereignty of the colonies. Indeed, Dicey commented that the CLVA is the ‘charter of colonial independence’.140 But the devil is in the detail. It is useful to return first to Dicey. He noted that the passing of the CLVA unusually passed through Parliament ‘without discussion’141 and further that ‘it permanently defines and extends the authority of colonial legislatures . . . The importance, it is true, of the [Act] may well be either exaggerated or quite possibly underrated.’142 In addition, he stated that the CLVA is ‘of the highest importance, because it determines, and gives legislative authority to principles which had never before been accurately defined, and were liable to be treated as open to doubt’.143 Postulations on the relevance of the CLVA in enabling ‘self-government’ have tended to follow Dicey’s views. The reliance of the UK government on the CLVA in the Bancoult litigation (as will be discussed later) demonstrates the continuing relevance of that legislation. However, there are at least three related grounds on which to take issue with the basic assumption that the CLVA is significant to or furthered aspirations of self-determination of colonial peoples and territories presumably from the nineteenth century. First is the point that the very notion of self-government is lacking in legitimacy as such administrative arrangements were typically not representative or inclusive of the population. In the historical context, certainly in the Dominions and in other parts of the British Empire, at least before the wave of self-determination struggles in various colonies took root in the period after the Second World War (leading on to independence for many former colonies), ‘self-government’ meant white rule in the British colonies. It was typically a local form of colonial rule with restricted participation in governance made available to a few individuals (in some cases even a single person) appointed or designated by the imperial power – typically a colonial governor, his lieutenants, and a handful of propertied, usually (only) white (male) British settlers appointed at the discretion of the governor. In a few cases, the governor was elected by a restricted group of minions, again, all invariably settlers. The breadth and authority of the powers of governors were incredibly wide and they were charged with almost every imaginable power and authority across economic, political and judicial appointments and control.144 Bilder wrote in the context of the American colonies that the office of governor was ‘all important’ so much so that ‘their absence often doomed the settlement’.145 This was true of other colonies across the Empire. Even with the legislative or advisory councils, or assemblies, colonial governors and, to a lesser extent, governors-in-council were,

Peace, order and good government 25 within the political restrictions of the requirement of loyalty to the Crown and the legislative doctrine of repugnancy (in its limited scope), a law unto themselves.146 The majority (in some cases, reduced to a minority) indigenous or local population or, in the pejorative officialese, ‘native’ people, were excluded from the composition of the legislatures of the colonies as the various examples in the relevant legislation mentioned by way of illustration in this chapter and various parts of this book show. Indeed, it was standard practice that the colonial legislatures were not constituted on a representative basis, and certainly were not representative of the indigenous peoples or original owners irrespective of whether they were ceded or settled. The examples of such legislation discussed earlier make the point clear beyond doubt. The story was the same from New Zealand to South Africa. With this circumstance of mostly severely restricted scope of representation or participation, it is plausible to argue that there was a consistent legitimacy-deficit in assertions of ‘self-rule’ in the colonies. This leads on to the last point, namely that since these colonial legislatures conferred with powers to make laws for POGG are typically not representative of the various colonies properly so speaking, whose laws, irrespective of content, could they have been involved in making? Surely not laws in the interest of POGG of the people but a part of them who were, in most cases, the minority. With their vires as representatives being so questionable, legislation emanating from them ought to be deemed as lacking in any legitimacy despite their being clothed with an imposed legality, thereby taking issues right back to the beginning – that the POGG power is nothing but a subterfuge for colonial dispossession and ­authoritarian rule. Moreover, the British Settlements Act 1887 provides for the administration of the Crown’s subjects who have ‘resorted to and settled in … diverse places where there is no civilised government, and such settlements have become or may hereafter become possessions of Her Majesty’.147 It constitutes the continued basis for the British control of some of such territories as British Overseas Territories till today. As Allen points out, the Crown retains, through this line of legislation, considerable prerogative power to create law for the ‘peace, order and good government’ ‘of its remaining overseas territories via Orders in Council and subordinate legislation’ based on ‘the notion of the Crown’s “undivided realm”’.148 In this regard, section 2 of the Settlement Act 1887 provides that: It shall be lawful for Her Majesty the Queen in Council from time to time to establish all such laws and institutions, and constitute such courts and officers, and make such provisions and regulations for the proceedings in the said courts and for the administration of justice, as may appear to Her Majesty in Council to be necessary for the peace, order, and good government of Her Majesty’s subjects and others within any British settlement. While the active application and, to a large extent, contemporary relevance of the CVLA have receded,149 that of the British Settlements Act 1887remain active, relevant and, in some contexts, strong, as two recent line of cases – the Bancoult

26  Colonial and Post-Colonial Constitutionalism in the Commonwealth litigation and the Pitcairn prosecutions – show. The Settlement Act 1887 formed the basis of assumption of jurisdiction in 2006 and application of British law by the JCPC in the Pitcairn prosecutions – criminal appeals on sexual offences committed against several teenagers in, and by citizens of, the Pitcairn Islands, a British Overseas Territory.150 This is because pursuant to the Settlement Act 1887, in 1893, the Queen in Council made the Pacific Order in Council to provide a system of government for British settlements in the Pacific. This was to provide for all laws and institutions ‘as might appear to Her Majesty in Council to be “necessary for the peace, order and good government” of Her Majesty’s subjects and others’ there.151 It is fair to note that the distinction between the two Acts are sometimes blurred, especially given the fact that an enabling colonial instrument directed at asserting British legal claim to foreign territories may at the same time seek to create a local legislature with limited powers of self-governance. Nonetheless, a distinction can be made in many cases between a commissioning instrument and a subsequent instrument seeking to relinquish some powers of local administration typically for pragmatic reasons, falling into the first and second type of applications of the POGG power respectively. These distinct but related colonial applications of the POGG clause have predictably shaped the course of the historical, political and constitutional development of the clause across the Commonwealth with, as will later become clear, sometimes paradoxical results. The political and legislative practice of the British colonialists in the application of the clause is replicated in virtually the whole of the Commonwealth as a matter of political and, thanks to its common law system, judicial practice.152 The question of course remains: what is the meaning of ‘peace, order and good government’? This theme, in the specific context of Commonwealth constitutionalism, is explored sometimes directly but usually by implication throughout the chapters of this book. The brief discussion that follows initiates the discussion from a historical perspective.

Meaning of ‘peace, order and good government’: four classic cases What is the actual meaning of the POGG clause so common in Commonwealth constitutions? The clause has been variously construed. Sir Ivor Jennings described it as a ‘compendious’ channel for the delegation of ‘full powers of legislation, subject to any limitations which may be expressed by any overriding legislation’.153 The power to override legislation or limit its application was vested in the Crown or delegated by it to its officials, principally governors or commissioners in the colonies.154 A very useful illustration of the meaning of the POGG clause is provided by Lord Carnarvon’s submission to the House of Lords in London during deliberations preliminary to the passing of the British North America Act 1867. Like John A Macdonald, Lord Carnarvon shared the aspirations of the founding fathers of Canadian confederation for a strong central government which would have the last word regarding matters it considered of national importance.155 Stating the motive, Lord Carnarvon said:

Peace, order and good government 27 The real object which we have in view is to give to the central Government those high functions and almost sovereign powers by which general principles and uniformity of legislation may be secured in those questions that are of common import to all the provinces; and at the same time to retain for each province so ample a measure of municipal liberty and self-government as will allow and indeed compel them to exercise those local powers which they can exercise with great advantage to the community.156 To achieve this aim, the POGG power was to be vested on the Dominion (federal government). As Lord Carnarvon further stated: It will be seen, under the ninety-first clause, that the classification is not intended to ‘restrict the generality’ of the powers previously given to the central Parliament, and that those powers extend to all laws made ‘for the peace, order, and good government’ of the Confederation – terms which, according to all precedent, will, I understand carry with them an ample measure of legislative authority.157 Thus, in its classic formulation, it is considered that ‘neither a judge nor any other person is entitled to say that any statute is invalid because it is conducive to disorder or bad government’.158 This is given judicial approval by Viscount Radcliffe in Ibralebbe v The Queen (‘Ibralebbe’),159 whose dicta on the purport of POGG has become famous: ‘The words “peace, order and good government” connote, in British institutional language, the widest law-making powers appropriate to a Sovereign’.160 It is on this line of reasoning that a slim majority of the House of Lords interpreted the POGG power in Bancoult No 2. I will challenge this dominant, subjective view of the purport of the POGG power later in this book.161 At this point, it is apt to turn briefly to the four cases that have had controlling influence on judicial interpretation and, hence, political application of ‘peace, order and good government’ and the subjective view of its meaning that prevail in the Commonwealth. Loci classici – the ‘Famous Four’ Burah, Russell v The Queen (‘Russell’),162 Hodge v Queen (‘Hodge’)163 and Louis Riel v The Queen ex parte Riel (‘Riel’)164 stand out as the ‘Famous Four’ cases on ‘peace, order and good government’ in Commonwealth constitutionalism. This is because they have been constantly cited by the courts across the Commonwealth in determining the constitutional (and sometimes statutory) definition and province of the POGG clause. These cases have been so frequently cited across Commonwealth jurisdictions that they have virtually fixed the meaning of the clause. The ‘Famous Four’ have defined the nature of the constitutional power associated with the POGG power and few will debate the proposition that they have collectively attained the status of loci classici on the clause. As will become evident in the discussion of the cases in the next six chapters, the Famous Four, through the common law system of the Commonwealth countries

28  Colonial and Post-Colonial Constitutionalism in the Commonwealth and its precedent tradition, have (or at least, have been assumed to have) ossified the judicial interpretation and conceptualisation of the nature of the POGG clause. Collectively (along with a handful of their progenies), they have shaped and continue to set the pace on the construction and application of the clause all over the Commonwealth. The cases were determined within the short space of a decade in the nineteenth century (1878–1887) by the JCPC.165 This makes the JCPC one of the extant and proud legacies of the British Empire with a continuing and direct role in the construction of the power, a theme to which we shall return in some detail in Chapter 6. Interestingly, three of the cases emanated from British North American Dominion of Canada, but the first, in terms of its determination by the JCPC, Burah, was from India. The predominance of Canadian cases is significant for how it has set the pace in fixing the meaning of the POGG clause in Commonwealth constitutionalism. Equally important is how these cases presage the exceptional prominence of the clause in the interpretation of the Canadian Constitution and the shape its federalism has taken, particularly post-confederation until 1949 but also to date.166 I will return to the discussion of the Canadian experience of POGG and the three Canadian cases of the Famous Four, Russell, Hodge and Riel, in Chapter 2. Suffice it to say here that ‘peace, order and good government’ remained for decades (and to some extent, remains) a contentious clause in Canada’s dominion and provincial relations. At this point, it is useful to consider the Indian case of Burah, the pioneering case decided by the JCPC on the ­interpretation of POGG. R v Burah – a classic case of misapplied authority The Indian legislators passed an Act (No 22 of 1869), purporting to remove a district called the Garo Hills from the jurisdiction of the Courts of Civil and Criminal Judicature, and from the control of the offices of Revenue, constituted by the regulations of the Bengal Code. This excision also extended to the Acts passed by any legislature established in British India, and from the law prescribed for such courts and offices by such regulations and Acts. Further, the Act vested the administration of civil and criminal justice, within the same territory, in such officers as the Lieutenant-Governor of Bengal might from time to time appoint. The Lieutenant-Governor was further empowered: from time to time, by notification in the ‘Calcutta Gazette,’ to extend, mutatis mutandis, all or any of the provisions contained in the other sections to the Jaintia Hills, the Naga Hills, and such portion of the Khasi Hills as might, for the time being, form part of British India. The Act came into effect in the Garo Hills and was extended by the LieutenantGovernor of Bengal to the Khasi and Jaintia Hills on 14 October 1871. By declaration, the Lieutenant-Governor vested the administration of civil and criminal justice within that district on the Commissioner of Assam (‘the Commissioner’),

Peace, order and good government 29 subject to the general direction and control of the Lieutenant-Governor. The declaration stated further that the Commissioner should exercise the powers of the High Court in the civil and criminal cases that could be tried in the courts of the district but no sentence of death was to be carried out without the sanction of the Lieutenant-Governor, who also had competence to call for the record of any criminal or civil case, and to pass thereon such orders as to him might seem fit. The Deputy Commissioner of the district, his assistants, the native chiefs and officers and the subordinate officers of government should exercise the same powers as they had hitherto exercised, until otherwise directed. Burah and another person (who had died by the time of the appeal) were tried in 1876 by the Deputy Commissioner of the Khasi and Jaintia Hills upon a charge of murder committed within that territory. They were convicted and sentenced to death but the Commissioner commuted their sentence to transportation for life (banishment). They appealed to the High Court at Calcutta and a slim majority of the judges of that court (four against three) decided that the case fell within their appellate jurisdiction and ordered the record of the proceedings, with a view to decide the appeal. The major ground on which the majority of the High Court assumed jurisdiction was that section 9 of the Act purporting to authorise the Lieutenant-Governor of Bengal to extend the Act of 1869 to Khasi and Jaintia Hills was in excess of the legislative powers of the Governor-General in Council. The decision was appealed by the defendants to the JCPC. It was argued before the JCPC that the whole Act of 1869 (at least insofar as it might affect the jurisdiction of the High Court), and not only section 9, was void, and ultra vires the Indian Legislature. The JCPC stated that the High Court decision was premised on the position that section 9 was not legislation but a delegation of legislative power. It observed that the leading judgment of Justice Markby relied on the doctrine of agency to hold that the Indian Legislature was an agent or delegate, acting under a mandate from the Imperial Parliament, which must in all cases be executed directly by the former. The JCPC rejected this reasoning. Their Lordships held that the Act was consistent with the powers of the Indian Legislature. According to the JCPC, the Indian Legislature had powers expressly limited by the Act of the Imperial Parliament which created it and could not do anything beyond the limits which circumscribe these powers. However: when acting within those limits, it is not in any sense an agent or delegate of the Imperial Parliament, but has, and was intended to have, plenary powers of legislation, as large, and of the same nature, as those of [the Imperial] Parliament itself … where plenary powers of legislation exist as to particular subjects, whether in an Imperial or in a Provincial Legislature, they may … be well exercised, either absolutely or conditionally. A striking feature of Burah was that POGG was never mentioned. What was discussed, as the above quote demonstrates, was the plenary nature of the legislative powers of the Indian Legislature as a grantee of powers by the Imperial Parliament. Calvert also makes this point. He noted that in addition to Burah, in

30  Colonial and Post-Colonial Constitutionalism in the Commonwealth two other cases also usually cited as authority for the plenary nature of POGG – Powell v The Apollo Candle Company Limited (New South Wales)167 and Hodge – the claim was not made out. Rather, they were also decided ‘on the ground that the subordinate legislatures lacked the power to delegate legislative authority’.168 As he further went on to explain: What is at issue is whether the subordinate legislatures are to be treated as species of administrative agency, such as a local authority, or whether they are sui generis, for it is upon this point that the maxim delegatus non potest delegare depends. In all three cases, the Judicial Committee takes the view that the maxim does not apply.169 This is in line with the facts and the letter of the respective judgments. Yet, Burah has become a common reference in Commonwealth judicial decisions on the interpretation of the POGG clause and is almost as commonly cited as Russell and Riel.170 Curiously, Lord Halsbury referred to and relied on Burah in Riel and it was approved also by Sir Montague Smith in Russell on the legality of conditional legislation by the Canadian Parliament on issues over which it has jurisdiction. The reference constitutes the link between POGG and plenary legislative powers of Parliament; a connection which, as it will be argued in Chapter 6, is an unnecessary one.

Conclusion The roots of the POGG power can logically be traced back to legislative drafting style, language and practice in the British Isles. The transmutation of the clause in Commonwealth constitutionalism demonstrates its resilience and versatility in how it has shaped (and continues to shape) socio-legal development in postcolonial countries. The clause had clearly been included in instruments conferring powers on colonial governors for administration of British colonies from the early decades of the seventeenth century, but elements of the style and language of its drafting are noticeable in English documents from the fifteenth century as exemplified by the Justices Act 1489. As will be further discussed in the next two chapters, the POGG power had been introduced in Canada in 1763 and in Australia in 1823 through imperial legislation. Four key early cases, one of which has been briefly discussed in this chapter, have shaped the interpretation of the power across the Commonwealth. There has been little interrogation of these cases from an academic or judicial perspective and their influence has remained strong in fixing the meaning of POGG into a term of art. However, on the basis of a historiographical survey commenced above with Burah and continued in Chapter 2 with the other three cases, it could be argued that the influence of the ‘Famous Four’ has been a consequence of precedentfollowing – one of the three essential features of the common law tradition171 – rather than the appropriate interpretation of the power in those cases, all of which were decided in the context of colonialism. Worrying still is how the main issue

Peace, order and good government 31 in Burah as well as Hodge (and this will become clear in Chapter 2) was construed while they have continued to be wrongly cited as authority on the construction of POGG. Rather than POGG, the decisions in both cases turned on another issue – the implication of law made on the basis of delegated legislation, rather than POGG. Riel, which is easily the most cited of the ‘Famous Four’, relied on Burah and forms part of the discussion in Chapter 2, which examines the clause in Canada – a notable Commonwealth jurisdiction which has adopted peace, order and good government as its national motto.

Notes 1 Christopher Tomlins, ‘Necessities of State: Police, Sovereignty, and the Constitution’ (2008) 20(1) Journal of Policy History 47, 48–51; and Robert Garran, Commentaries of the Constitution on the Commonwealth of Australia (Robert and Angus, Sydney, 1901); available at http://setis.library.usyd.edu.au/oztexts/ (accessed 1 August 2013), 49–50. 2 [2005] EWCA Civ 126. 3 Jackson (n 2), [52]; and Mark D Walters, ‘The Common Law Constitution in Canada: Return of lex non scripta as Fundamental Law’ (2001) 51(2) University of Toronto Law Journal 91. 4 Frederick Madden and David Fieldhouse, The Empire of the Bretaignes – The Foundations of a Colonial System of Government (Greenwood Press, Connecticut, 1985), 1. 5 Ian E Wilson, ‘“Peace Order and Good Government”: Archives in Society’ (2012) 12(2) Archival Science 235. 6 Joseph Robson Tanner, Tudor Constitutional Documents A.D. 1485–1603 with an Historical Commentary (Cambridge University Press, Cambridge, 1940), 452–454. 7 Completed in 1565. 8 First published in 1583, see Tanner (n 6), 455. 9 Tanner (n 6), 455–456. 10 Tanner (n 6), 456. 11 Tanner (n 6), 452–454. 12 Tanner (n 6), 453. 13 Tanner (n 6), 463–464. 14 ‘An Act for Justices of Peace for the Due Execution of their Commissions’ (4 Henry VII, c.12). 15 Justices Act 1489 (emphasis added). 16 31 Henry VIII, c.8; see George Rudolph Elton, The Tudor Constitution – Documents and Commentary (2nd edn, Cambridge University Press, Cambridge, 1982), 27–30. 17 Statute of Proclamations, s 1. 18 Instruments issued ‘under the Great Seal of the United Kingdom of Great Britain and Ireland’ for the administration of colonies. See Colonial Laws Validity Act 1865, s 1. 19 For a discussion of the legal and political issues that led to the declaration, see Jack P Greene, ‘Law and the Origins of the American Revolution’, in Michael Grossberg and Christopher Tomlins (eds), The Cambridge History of Law in America Volume I: Early America 1580–1815 (Cambridge University Press, Cambridge, 2008), 447–483. 20 John AW Gunn, Beyond Liberty and Property: The Process of Self-Recognition in EighteenthCentury Political Thought (McGill-Queen’s University Press, Kingston, 1983), 199. 21 Emphasis added. 22 David Williams, Unanimity in All Parts of the British Commonwealth, Necessary to Its Preservation, Interest and Happiness (Davis, London, 1778), 25. 23 Sri Ram Mehrotra, ‘On The Use of The Term “Commonwealth”’ (1963) 2(1) Journal of Commonwealth Political Studies 1, 2. This was in keeping with a sense of republicanism and expression of anti-monarchical sentiments. See, e.g. John Adam, Life and Works

32  Colonial and Post-Colonial Constitutionalism in the Commonwealth (Vol 5, 1851 edn, Liberty Fund, Indiana, 2010), 279: ‘There is, however, a peculiar sense in which the words republic, commonwealth, popular state, are used by English and French writers; who mean by them a democracy, or rather a representative democracy; a “government in one centre, and that centre the nation”; that is to say, that centre a single assembly, chosen at stated periods by the people, and invested with the whole sovereignty; the whole legislative, executive, and judicial power, to be exercised in a body, or by committees, as they shall think proper.’ 24 Mary Sarah Bilder, ‘English Settlement and Local Governance’, in Grossberg and Tomlins (n 19), 63, 63. 25 ‘First Letters Patent granted by Henry VII to John Cabot, 5 March 1496’, in HB Biggar (ed.), The Precursors of Jacques Cartier, 1497–1534: A Collection of Documents Relating to the Early History of the Dominion of Canada (Canadian Archives Publications, Ottawa, 1911), 8–10. 26 Bilder (n 24), 65–66. 27 ‘Letters Patent to Hugh Eliot, Thomas Ashurst and John Thomas of Bristol and John Fernandez, Francis Fernandez and John Gonzales of the Azores’, in Biggar (n 25), 51–59. 28 ‘Letters Patent to Richard Warde, Thomas Ashurst and John Thomas of Bristol and John Gonzales and Francis Fernandez of the Azores’ (6 December 1503), in Biggar (n 25), 71–93. 29 ‘First Charter of Virginia 10 April 1606’, in Francis Newton Thorpe, The Federal and State Constitutions, Colonial Charters, and Other Organic Laws of the States, Territories, and Colonies Now or Heretofore Forming the United States of America (Government Printing Office, Washington DC, 1909), 3784. 30 ‘Letters Patent from James I to Sir George Calvert for “Avalon” 7 April, 1623’, in Madden and Fieldhouse (n 4), 215–217. 31 Madden and Fieldhouse (n 4), 216–217 (emphasis added). 32 See Ch 6. 33 ‘Letters Patent to Sir Humphrey Gilbert June 11, 1578’, in Carlos Shatter, Sir Humfrey Glylberte and His Enterprise of Colonization in America (Publications of the Prince Society, Boston, 1903), 95–102. 34 He died on his return journey to England that year. 35 ‘First Charter from Charles II for Carolina, 24 March 1663’. 36 Madden and Fieldhouse (n 4), 420. 37 Madden and Fieldhouse (n 4), 421. 38 ‘Letters Patent from Charles I to the Earl of Carlisle, 2 July 1627’. 39 Madden and Fieldhouse (n 4), 222. 40 Madden and Fieldhouse (n 4), 616. 41 ‘Charter of Maryland 1632’, in Thorpe (n 29), 1669. 42 ‘Letters Patent from Charles I to the Marquis of Hamilton and Others, 13 November 1637’. 43 Madden and Fieldhouse (n 4), 227. 44 ‘Commission to Lord Windsor as Governor of Jamaica, 2 August 1661’. 45 Madden and Fieldhouse (n 4), 402. 46 ‘Instructions to Governor Lord Windsor, 21 March 1662. 47 Madden and Fieldhouse (n 4), 547. 48 ‘Commission to Governor Dongan’, 10 June 1686. 49 Madden and Fieldhouse (n 4), 599. 50 ‘The Duke’s Instructions to Governor Dongan, 27 January 1683’. 51 Madden and Fieldhouse (n 4), 596. 52 ‘Charter of Rhode Island and Providence Plantations – July 15, 1663’, in Thorpe (n 29), 3217. 53 ‘Charter of Pennsylvania 1681’, in Thorpe (n 29), 3035.

Peace, order and good government 33 54 ‘Charter of Delaware – 1701’, in Thorpe (n 29), 558. 55 Sixth Schedule, para 19(b), pursuant to Arts 244(2) and 275(1) of the Indian Constitution 1950, as amended. 56 Article 240(1). See TM Kanniyan v Income-Tax Officer, Pondicherry AIR 637 1968 SCR (2) 103, where the Supreme Court of India stated that the variants, including ‘peace, welfare and good government’, all mean the same thing. 57 Frederick Madden and David Fieldhouse (eds), Imperial Reconstruction, 1763–1840 – The Evolution of Alternative Systems of Colonial Government (Greenwood Press, Connecticut, 1987), 143. 58 Robert L Hardgrave and Stanley A Kochanek, India: Government and Politics in a Developing Nation (Thomson Wadsworth, Boston, 2008), 31–34 and Administrative System in India: Vedic Age to 1947 (APH Publishing Corporation, New Delhi, 1998), 18–19. 59 Nick Robin, The Corporation that Changed the World: How the East India Company Shaped the Modern Multinational (Pluto Press, London, 2006), 5–6 60 Madden and Fieldhouse (n 57), 143. 61 ‘Charter from Elizabeth I for an East Indian Company’. 62 John Shaw, Charters Relating to the East India Company from 1600–1761 (Madras Government Press, Madras, 1887), 38. 63 Shaw (n 62), 44 (emphasis added). 64 Shaw (n 62), 44. 65 Antony Wild, The East India Company: Trade and Conquest from 1600 (Lyon Press, London, 2000), 10. 66 Manas, ‘British India’; available at http://www.sscnet.ucla.edu/southasia/History/ British/BrIndia.html (accessed 1 August 2013). 67 Hardgrave and Kochanek (n 58), 32.  68 Manas (n 66). 69 Madden and Fieldhouse (n 57), 143–144. 70 Robin (n 59), 6 71 Clare Anderson, The Indian Uprising of 1857–8: Prisons, Prisoners, and Rebellion: Illustrated Edition (Anthem Press, London, 2006), 3–9. 72 Anderson (n 71), 10–11; Robin (n 59). 73 Anderson (n 71), 3. 74 21 & 22 Vict. c.106. 75 India Act 1858, ss I and II. 76 Robin (n 59), 6. 77 India Act 1858, s II; and Bindha Preet Sandhi, ‘Effects of Emergency Law in India 1915–1931’ (2012) Studies on Asia, Illinois State University, Series IV, Vol 2, No 2, October 2012; available at http://papers.ssrn.com/sol3/papers.cfm?abstract_ id=2174900 (accessed 1 August 2013). 78 ‘Proclamation by the Queen to the Princes, Chiefs and the People of India, 1 November 1858’, in Arthur Berriedale Keith (ed.), Speeches and Documents on Indian Policy, 1750–1921 (Vol I, Oxford University Press, Oxford, 1922), 382–386, 384. 79 India Act 1858, s XIX. 80 24 & 25 Vict., c.67, as amended. 81 India Act 1858, ss 23 and 42, respectively. 82 33 Vict., c.3. 83 (1774) 1 Cowp 274, which, not surprisingly, was cited with approval by Lord Hoffmann in R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (Bancoult No 2) [2009] 1 AC 453, a case that will be discussed extensively in Ch 6. 84 Sir Anton Bertram, Colonial Service (Cambridge University Press, Cambridge, 2011), 16. 85 Bertram (n 84), 17. 86 ‘Annexation of Natal to the Cape Colony’, Letters Patent dated 31 May 1844. 87 Dated 29 September 1885.

34  Colonial and Post-Colonial Constitutionalism in the Commonwealth 88 No 2 B. B, October 1885. 89 No 2 B. B, October 1885. 90 Part of Bechuanaland became Botswana and the other part was merged with South Africa. 91 Chief Tshekedi Khama v Simon Ratshosa and another (1932) 145 Law Times 657, reported in (1932) South Africa Law Journal, 243, 246. 92 No 37 of 1897. 93 ‘Annexation of Orange Free Colony’, No 15 of 1900; see George von Welfling Eybers, Select Constitutional Documents Illustrating South African History 1795–1910 (George Routledge and Sons Ltd, London, 1918), 514. 94 von Welfling Eybers (n 93), 514. 95 David Dyzenhaus, Hard Cases in Wicked Legal Systems (Oxford University Press, Oxford, 2010), 35. 96 ‘An Act to Constitute the Union of South Africa’ (9 Edward VII, c.9). 97 Thomas Poole, ‘United Kingdom – The Royal Prerogative’ (2010) 8(1) International Journal of Constitutional Law 146, 146–147. 98 Poole (n 97), 147. 99 David Vine, Island of Shame: The Secret History of the U.S Military Base on Diego Garcia (Princeton University Press, Princeton, 2009), 16. 100 [2009] 1 AC 453 at [69], a critical part of the Bancoult litigation to which I return much later in this study in Ch 6. 101 Mark Elliott and Amanda Perreau-Suassine, ‘Pyrrhic Public Law: Bancoult and the Sources, Status and Content of Common Law Limitations on Prerogative Power’ (2009) Public Law 697, 697. 102 Poole (n 97), 147. 103 Basil S Markesinis, ‘The Royal Prerogative Revisited’ (1973) 32(2) Cambridge Law Journal 287, 267–288. 104 Markesinis (n 103), 308–309; Poole (n 97), 147; and Thiruvallore Thattai Arvind, ‘“Though it Shocks One Very Much”: Formalism and Pragmatism in the Zong and Bancoult’ (2012) 32(1) Oxford Journal of Legal Studies 113, 138. 105 Markesinis (n 103), 288. 106 Council of Civil Service Unions and others v Minister for the Civil Service (‘GCHQ case’) [1983] UKHL 6, [1984] 3 WLR 1174. 107 Poole (n 97), 146. 108 William Blackstone, Commentaries on the Laws of England, Bk I, Ch 7 (1765); as quoted in Poole (n 97), 146. 109 Markesinis (n 103), 287. 110 Albert Venn Dicey, Introduction to the Study of the Law of the Constitution (Online Library of Liberty), 247–248; available at http://oll.libertyfund.org/title/1714 (accessed 1 August 2013). 111 [1965] AC 75. 112 Burmah Oil Co (Burma Trading) Ltd v Lord Advocate (n 111), 99–100 113 Dicey (n 110), 248. 114 Poole (n 97), 153. 115 (1828) Sel Cas (Dowling) 523; 211. 116 Nash v Purcell (n 115), 235. 117 [1926] AC 518. 118 The Judicial Committee of the Privy Council will be referred to as such but mainly as the JCPC throughout this book. 119 Sobhuza II (n 117), 521–522. 120 Victor Essien, ‘Update: Researching Ghanaian Law’ (2008) Globalex; available at http://www.nyulawglobal.org/Globalex/Ghana1.htm#_Index_to_Case_law (accessed 1 August 2013).

Peace, order and good government 35 121 Bertram (n 84), 18–20. 122 Mary Nazzal, ‘Deception and Dispossession: The British Government and the Chagossians’; available at http://www.lawanddevelopment.org/index.html (accessed 1 August 2013). 123 Nazzal (n 122). This was brought to light in the Bancoult litigation discussed in Ch 5. See also ‘Decisions of British Courts during 2000 Involving Questions of Public or Private International Law’ (2001) 70(1) British Year Book of International Law 433. 124 ‘An Act to Empower His Majesty to Erect South Australia into a British Province or Provinces and to Provide for the Colonisation and Government thereof’ (15 August 1834) . 125 Order in Council establishing Government, 23 February 1836. 126 Bradley M Selway, The Constitution of South Australia (Federation Press, New South Wales, 1997), 108. 127 See Chs 2 and 6. 128 Bradley Selway and John M Williams, ‘The High Court and Australian Federalism’ (2005) 35(3) Publius 467, 468. 129 Garran (n 1), 512. 130 (1921) 40 MLJ 354. 131 Soundararajan (n 130), 354. 132 Walters (n 3), 120. See also Dunphy v Croft [1931] SCR 531 at 533, per Duff J; and Sir K Roberts-Wray, Commonwealth and Colonial Law (London, Stevens and Sons, 1966), 369. 133 See Ch 3. 134 (30 July 1842) Anno 5oet 6o Victoriae (UK), which repealed the 1836 Order in Council. 135 This is the title of the Order in Council. 136 Walters (n 3). See, e.g. South Australia Act 1842 (UK), which provides in part that ‘it shall also be lawful for her majesty … to prescribe all such rules and orders as to her majesty shall seem meet … respecting the course and manner of proceeding to be by the said legislative council observed in the enactment of laws and respecting the transmission of such laws for the confirmation or disallowance of her majesty or the reservation of them for the signification of her majesty’s pleasure and respecting the effect of any such disallowance or reservation all which rules and orders shall within the said colony have the force and effect of law until the same shall have been revoked or altered by her majesty in manner aforesaid’. 137 28 and 29 Vict., c.63. 138 [1878] UKPC 1, (1878) LR 3 AC 889 (PC). 139 Bancoult No 2 (n 100), [92]. 140 Dicey (n 110), 114. 141 Dicey (n 110), 114. 142 Dicey (n 110), 115. 143 Dicey (n 110), 115. 144 Bilder (n 24), 83–86. 145 Bilder (n 24), 85. 146 Cf. Bilder (n 24), 87–88, noting that assemblies were more representative than ­councils and wielded more legislative powers. 147 A ‘British settlement’ is any British possession ‘which has not been acquired by cession or conquest’ and which did not have its own legislature. See the Pacific Order in Council 1893. 148 Stephen Allen, ‘The Pitcairn Prosecutions and the Rule of Law’ (2012) 75(6) Modern Law Review 1150, 1159–1160 149 For instance, its application has been excluded by the Australia Act 1986 (c.2); s 3 of the Belize Act 1981 (c.52); s 1(2), Sche1, para 1 of the Statute of Westminster 1931

36  Colonial and Post-Colonial Constitutionalism in the Commonwealth (22 & 23 Geo. 5 c.4) and Independence Acts listed in the Chronological Table of the Statutes. 150 See Christian and others v The Queen [2006] UKPC 47, [2007] 2 AC 400. 151 This was later revoked by the Pitcairn Order in Council 1952 which conferred similar powers on the Governor of Fiji to act also as Governor of Pitcairn and some neighbouring uninhabited islands. This was in turn revoked by the Pitcairn Order 1970 at the independence of Fiji with the governorship of Pitcairn being conferred on the holder of the office of High Commissioner for the United Kingdom in Wellington, New Zealand. See s 5(1) of each Order in Council. 152 See Peter W Hogg and Wade K Wright, ‘Canadian Federalism, the Privy Council and the Supreme Court: Reflections on the Debate about Canadian Federalism’ (2005) 38 University of British Columbia Law Review 329, 337, stating that ‘The phrase “peace, order and good government,” or some variant thereof, is found in nearly all of the British-derived constitutions’. 153 Ivor Jennings, Constitutional Laws of the Commonwealth (Oxford University Press, Oxford, 1957), 49. 154 This is through imperial legislation like the Colonial Laws Validity Act 1865 (28 and 29 Vict. c.63). 155 See, e.g. ‘Resolutions adopted at a Conference of Delegates from the Provinces of Canada, Nova Scotia, and New Brunswick, held at the Westminster Palace Hotel, London, December 4, 1866’; available at http://www.solon.org/Constitutions/ Canada/English/Misc/lr_1866.html (accessed 1 August 2013). 156 ‘Canada: Law and Custom in the Canadian Constitution’ (1929) 20(77) The Round Table: The Commonwealth Journal of International Affairs 143, 148. 157 ‘Canada: Law and Custom in the Canadian Constitution’ (n 156), 148. 158 Jennings (n 153). 159 [1964] AC 900 (PC). 160 Ibralebbe (n 159), 923. 161 Chapter 5. 162 (1882) 7 AC 829 (PC). 163 (1883) LR 9 AC 117 (PC). 164 (1887) LR 10 AC 675 (PC). 165 Coincidentally just after the Appellate Jurisdiction Act 1876 created the position of Law Lord; I thank Rory O’Connell for pointing this out to me. 166 This reality is reflected in how discussion of the POGG clause in Canada is the most extensive in this study both as a matter of jurisdictional focus in Ch 2 and various referential comparisons throughout the book and on this second aspect, especially in Ch 6. 167 [1885] UKPC 5; see Ch 3. 168 Harry Calvert, Constitutional Law in Northern Ireland (Stevens and Sons, London, 1968), 163–164. 169 Calvert (n 168), 164. 170 (1885) 10 AC 675. 171 Gerald J Postema, ‘Classical Common Law Jurisprudence (Part II)’ (2003) 3(1) Oxford Commonwealth Law Journal 1, 11–18.

2 Canada – federalism and the country of ‘peace, order and good government’

The absence of a single constitutional document with ‘ringing declarations of national purpose and independence’ or one that contained ‘all of the most important constitutional rules’1 may account for Canada uniquely styling itself as the bastion of ‘peace, order and good government’.2 Beyond the confines of legal scholarship, peace, order and good government (POGG) resonate in Canadian public discourse. Kenneth Munro, for instance, observes that the Royal Canadian Mounted Police, ‘through their various transformations, were a symbol of Canada’s “values of peace, order and good government” from the outset’.3 Holloway has observed that in thinking about Canadian legal history, it is important to understand that ‘the scheme of things in Canada is premised on the notion that the duty of the state is to legislate in aid of “peace, order and good government”’.4 When, in 1994, the world turned its attention to Haiti, Foreign Minister Andre Quellet expressed the country’s formal support for the return of ousted President Jean-Bertrand Aristide. Quellet talked about Canada’s commitment to supporting ‘President Aristide in the difficult process of re-establishing peace, order and good government’.5 Canadian socio-political attachment to POGG is also well illustrated in a 2004 lecture delivered by Canadian-born Harvard Professor, Michael Ignatieff. In his lecture, aptly titled ‘Peace, Order and Good Government: A Foreign Policy Agenda for Canada’,6 Ignatieff suggested that POGG be adopted as the ‘core values and interests’ that should drive Canadian foreign policy. He further proposed that POGG should constitute the ‘organizing frame for Canadian foreign policy activity across the fields of diplomacy, defence and development’.7 For Ignatieff, ‘these ideas – peace, order and good government – are not just a cluster of values. They define our national interest. They are the precondition of our national independence’.8 This vision-statement is as significant as it is interesting coming from not only a leading academic but also now former leader of the Liberal Party, one of Canada’s leading political parties. What it might mean in practice, both in national politics and foreign affairs, is arguably contentious. It has been suggested, for instance, that Canadian expectations of POGG are so solidly ingrained that it is even responsible for a considerably relaxed attitude towards security and terrorist threats compared to its southern neighbour, the United States.9 Jean-Pierre Morin provides a somewhat romanticised view

38  Colonial and Post-Colonial Constitutionalism in the Commonwealth of Canada’s POGG credentials. It means Canadian development ‘was largely peaceful’ and its institutions like ‘the Mounties’ were purveyors of ‘justice and law to the wilderness’.10 The government has the people’s ‘best interests at heart’.11 POGG is a ‘sentiment’ which ‘has become an important way’ in which Canadians ‘identify and define’ themselves.12 It is a sense of identity that has ‘evolved’ due to the nature of Canadian development and expansion, which was ‘undertaken through planning and in an orderly fashion that managed to avoid the chaos and violence that took place South of the border’.13 The treaty-making process by the British with Aboriginal Indians of Canada, Morin concludes, moved POGG from ‘a goal’ to ‘a process put into practice’.14 This was crucial in distinguishing British settlement in Canada from that of the United States.15 Despite the groundswell of support for Canada’s POGG social identity, at least some Canadians are likely to disagree with the notion that POGG defines Canada. Prominent Canadian thinker and author, John Ralston Saul, is a notable example. Saul has expressed the radical view that Canadian attitudes have nothing at all to do with imaginings of POGG. Canada, he asserts, is not, and has never been, ‘a civilization of British, French or European inspiration’.16 Nor is Canadian society ‘an expression of peace, order and good government. It never was.’17 Rather, Saul makes the bold claim that Canada is a product of the Métis civilisation. The Métis – French for ‘mixed’ – are the products of the relationship of Aboriginal women with French, English and Scottish fur traders.18 Notwithstanding the nature of its ‘family tree’, Canadian ‘intuitions and common sense as a civilisation’ has been essentially shaped by Aboriginal links.19 For Saul, ‘the myth that Peace, Order and Good Government’20 is appropriate for Canada ‘is self-serving nonsense invented and endlessly repeated by a tiny, empire-besotted elite – English or pretend English – late in the nineteenth century’.21 In his view, Canada has come to be ‘stuck with’ POGG as an ‘incomprehensible underpinning’ of its society mainly because of an unquestioning majority.22 The majority, Saul argues, have failed to dissect ‘colonial voices’ that have been strong in Canadian society but not necessarily representative of it.23 Saul’s views, contrary as they stand to conventional wisdom, will, understandably, be contested (perhaps strongly) by some Canadians (and possibly others outside of Canada). However, more contentious still is the judicial construction and application of the POGG power as part of federal constitutional powers in Canada. According to Peter Russell, the POGG is one of the most important federal powers in the country.24 John Kincaid maintains that POGG is the ‘defining motto of the Canadian Constitution’.25 Morin fully agrees.26 The Canadian experience of the application of the clause, more than any other, provides the most extensive opportunity for critical engagement.27 This chapter focuses on analysis of the application and judicial interpretation of POGG as a mediating mechanism in Canadian federalism. The chapter presents an examination of the deployment of the clause in the context of a federal state in an advanced liberal democracy. The clause is an integral part of constitutional provisions which delimit legislative competence of the central and provincial (regional) governments. The context is one in which POGG is invoked in the

Canada – federalism and the country of ‘peace, order and good government’ 39 judicial resolution of competing and, sometimes, sharply conflicting claims of jurisdiction in vital areas of governance. There are now taken to be three headings under which the federation can arrogate powers to itself under the rubric of POGG, rather than let them be exercised at the provincial level. An examination of these three areas forms the main focus of the discussion in this chapter, which proceeds as follows. The first part describes the history and politics of the POGG clause in Canada, tracking the introduction of the clause from the colonial period through to the dominion era and the present. An important issue in the workings of the POGG power in Canada is an understanding of the basic outlines of Canada’s constitutional system. Two judicial institutions, the Judicial Committee of the Privy Council (JCPC) and the Supreme Court of Canada, are critical to this part of the analysis and are considered along with the important doctrine of judicial review, which is at the centre of the analysis of the POGG power in the second part of this chapter. In the third part, the discussion moves into the main issue of the judicial considerations of POGG. There is also an insight into the political context in which judicial constructions of the POGG power took place. Following on the considerations of the branches of POGG, I conclude that the power has had a restricted purview in the mediation of Canadian federalism mostly as a legacy of the JCPC’s preferences than may have been the intendment of at least some of the country’s founding fathers.

History and politics of power – peace, order [welfare] and good government clause in Canada A country’s political and social experience plays an important role in its constitutional design. The nature of the history, political culture, the character of its populace, as well as the political thought and vision of its founding fathers, may significantly impact on constitutional choices.28 Canada is no exception. This part sets out the history of POGG in Canadian constitutionalism. It also examines the politics of the country’s founding, which has had a significant impact on judicial interpretations and applications of the POGG clause. The constitutional setting, which includes the nature of judicial review and the judicial power in the sociolegal dynamics of the country, is equally relevant and is also discussed. From colonies to dominion In Canada’s political history, one of the earliest records of POGG, though in its variant form of ‘peace welfare and good government’, is contained in the instrument appointing Edward Cornwallis Governor of Nova Scotia by King George II, issued on 6 May 1749. The Commission, among others, conferred on him (with the advice of a council and assembly or majority of them): full power & authority, to make, Constitute or Ordain, Laws Statutes & Ordinances for the Public peace, welfare, & good Government of our said province

40  Colonial and Post-Colonial Constitutionalism in the Commonwealth and of the people and inhabitants thereof and such others as shall resort thereto, & for the benefit of us, our heirs and successors.29 The laws and statutes to be so made were not to be repugnant to but ‘as near as may be agreeable’ to the laws of Great Britain. This marks the fact that the earliest references to what is now considered to be the power to make laws for POGG were first introduced in any part of what is now Canada as ‘[public] peace, welfare and good government’. As will be discussed in passing below,30 and in more detail later in this book,31 this is a very significant point on deciphering the appropriate definition of the phrase. Another early important reference, again in the variant form of ‘peace, welfare and good government’ is contained in George III’s grant of the powers to Québec’s Colonial Governor in the Royal Proclamation of 7 October 1763.32 This Royal Proclamation was the prelude to civil rule in Canada. It was made to end the imposition of military rule from February 1763 which had been instituted after the conclusion of the Treaty of Paris.33 The Royal Proclamation declared that it was issued to confer powers on the Colonial Governor of Québec, as well as the British colonies and provinces of East Florida, West Florida and Grenada, to make laws, with the consent of their respective councils and the representatives of the people (to be constituted) for publick peace, welfare and good government of the colonies ‘and of the People and Inhabitants thereof, as near as may be agreeable to the Laws of England, and under such Regulations and Restrictions as are used in other Colonies’. This was done in the words of the Royal Proclamation as a measure of the King’s ‘paternal care’ for the security of the ‘liberties and ­properties’ of his subjects. The Royal Proclamation further granted powers to the colonial governors to establish courts of judicature and public justice with jurisdiction over civil disputes and criminal matters ‘according to Law and Equity, and as near as may be agreeable to the Laws of England’. Importantly too, as will be discussed later, it provided for final appeals to the JCPC in London in civil matters. Lord Mansfield in Campbell v Hall34 stated that this proclamation was the first constitutional ­document of Canada until it was abrogated by the Québec Act 1774.35 Two separate but historically and thematically related documents issued to James Murray in 1763 provide a poignant instance of what could be considered a significant contributor to the view that ‘peace, order and good government’ and ‘peace, welfare and good government’ mean the same thing. One is the Commission that appointed Murray as the first ‘Governor-in-Chief’36 of the Province of Québec on 21 November 1763. This conferred legislative powers on him in virtually the same terms as that of Governor Cornwallis in Nova Scotia. It provided that Murray, with the advice and consent of the Council and Assembly, was to have full power and authority ‘to make, Constitute or Ordain, Laws Statutes & ordinances for the publick peace, Welfare, & good Government of our said province, and of the people and Inhabitants thereof’.37 Less than three weeks later, he was issued another; this time ‘instructions’, further to his Commission. The instructions iterated his power to administer the

Canada – federalism and the country of ‘peace, order and good government’ 41 Province of Québec.38 The instructions recalled that Murray was required by the Commission to convene a ‘General Assembly of Freeholders’ which was, in conjunction with the council, to advise him in passing legislation in the Province.39 However, the establishment of the General Assembly was not immediately feasible. Consequently, Murray was empowered, in the meantime, to make laws with the advice of the Council and these were to be transmitted to the King at the earliest opportunity after they are passed for ‘approbation or disallowance’. These were ‘such Rules and Regulations’: as shall appear to be necessary for the Peace, Order and good Government of our said Province taking care that nothing be passed or done that shall any ways tend to effect (sic) the Life, Limb or Liberty of the Subject, or to the imposing of Duties or Taxes.40 This seems to be the earliest appearance of POGG in this form in Canada. I will return to a consideration of the significance of this later.41 Suffice it to note here that the ‘peace, welfare and good government’ power re-emerged in the Québec Act 1774, legislation for ‘making more effectual Provision for the Government of the Province of Québec in North America’. Article XII provided that: … it shall and may be lawful for his Majesty … and with the Advice of the Privy Council, to constitute and appoint a Council for the Affairs of the Province of Québec … which Council … shall have Power and Authority to make Ordinances for the Peace, Welfare, and good Government, of the said Province, with the Consent of his Majesty’s Governor, or, in his Absence, of the Lieutenant-governor, or Commander in Chief for the Time being.42 The division of the Province of Québec into the Provinces of Upper Canada (present-day Ontario) and Lower Canada (present-day Québec) in 1791 led to the repeal of the Article XII with the creation of a legislative assembly for each province which were equally vested with powers to ‘make laws for the peace, welfare, and good Government’ of the Provinces.43 Further, the frustrated Proposed Union Act 182244 had provisions for ‘peace, welfare and good government’ to be vested in the joint Legislative Council and Assembly.45 Even more significantly, ‘peace, welfare and good government’ was similarly retained in the Union Act of 1840,46 which provided for the reunification of ‘the Provinces of Upper and Lower Canada’ as ‘the Province of Canada’ (and its government). Her Majesty had the power ‘by and with the Advice and Consent’ of the Legislative Council and Assembly created under section III of the Act to ‘make Laws for the Peace, Welfare, and good Government of the Province of Canada’. One of the important Acts repealed by the Union Act of 1840, the ‘Lower Canada Act’,47 which suspended the Parliament of Lower Canada from March 1838 until 1 November 1840,48 constituted a special council for Lower Canada. It had further provided that the Governor, with the advice and consent

42  Colonial and Post-Colonial Constitutionalism in the Commonwealth of the special council, could make laws or ordinances for the ‘peace, welfare and good government’ of Lower Canada.49 The now standard POGG clause formed the basis of the power to convey Crown land sold to individuals by James Douglas, the Governor of British Columbia, through a Proclamation to that effect in 1858.50 The Governor had made the Proclamation having been conferred with power under a Royal Commission to ‘make Laws, Institutions and Ordinances for the peace, order and good government’ of British Columbia and its dependencies. Canada was formed as a confederation from the three founding provinces of Canada (comprising Ontario and Québec), New Brunswick and Nova Scotia after years of extensive consultations among the provinces and territories of British North America, as well as with the British Parliament.51 The imperial legislation that created the new Dominion of Canada, the British North America Act 186752 (‘the BNA Act’, now officially renamed since 1982 as the Constitution Act 1867),53 crystallised the inroad of POGG into Canadian constitutionalism. Section 91 of the BNA Act provides that: It shall be lawful for the Queen, by and with the advice and consent of the Senate and House of Commons, to make laws for the Peace, Order and Good Government of Canada, in relation to all matters not coming within the classes of subjects by this Act assigned exclusively to the Legislatures of the Provinces. It then goes on to list the specific issues for ‘greater certainty’ but not restriction on the generality of the application of the powers to those issues. In interpretations of this provision, section 92, which provides for provincial powers, is almost ­invariably considered too. A much less-referenced constitutional document that also makes clear but hardly contested provisions on POGG in Canada is the British North America Act 1871 (‘BNA Act 1871’, also renamed Constitution Act 1871 by the Constitution Act 1982).54 It provides for the power of the Parliament of Canada to create new provinces and territories from areas that are part of the Dominion of Canada. Parliament may ‘from time to time’: establish new Provinces in any territories forming for the time being part of the Dominion of Canada, but not included in any Province thereof, and may, at the time of such establishment, make provision for the constitution and administration of any such Province, and for the passing of laws for the peace, order, and good government of such Province, and for its representation in the said Parliament.55 Section 4 further confers powers on the Parliament of Canada to make provision for the administration, peace, order, and good government of any territory not for the time being included in any province.

Canada – federalism and the country of ‘peace, order and good government’ 43 Provincial instruments and peace, order [welfare] and good government – a comparative point It is relevant to note that unlike Australia, the colonies that federated into Canada did not, strictly speaking, have any formal constitutions.56 The provinces generally followed the British system of unwritten constitutions with sometimes a plethora of documents (a number of which have been referred to above) underpinning their constitutions. Thus the POGG clause features in many statutes and administrative instruments including letters patent, instructions to governors, Orders in Council, royal proclamations, proclamations made by colonial governors and other legal instruments that make up or elucidate the respective constitutions of the provinces from the colonial period. This situation dissipates the force of the otherwise important clause in the provinces, particularly from a constitutional perspective. From a domestic perspective, one important consequence of this is that the conferral of the powers of POGG on the Dominion Parliament in the British North America Act as an exclusive and residual power then becomes significant. In Canada, the power has generally been in issue as a constitutional expression for extending or limiting federal powers as against provincial jurisdiction. From a comparative perspective, the presence of POGG in statutes and colonial foundational documents of the colonies in Canada, rather than in formal constitutions as with Australia, is also significant in its application in the latter jurisdiction, as will become clear in Chapter 3. As the discussion on Australia shows, one of the most important implications is the issue of territorial limits on POGG of the two levels of government. Finally, it is germane to note that while it is in the form ‘peace, order and good government’ that the power under discussion has become ‘standard’ in Canadian constitutionalism, as the foregoing discussion demonstrates, it is actually the earlier variant, ‘peace, welfare and good government’, that dominates reference to it in Canada’s founding documents. Indeed, it is interesting to observe, as Saul has done, that through the course of Canada’s history, in all its legal and constitutional documents as well as ‘all of the precedent-setting declarations, the phrase, Peace, Order and Good Government has been used only twice’.57 In all other instances ‘the phrase used was fundamentally different – Peace, Welfare and Good Government’.58 For sure, judicial authorities in the Commonwealth, including the JCPC and the High Court of Australia, have long declared that the two mean the same thing. However, Saul’s interesting argument that the one word change matters is something we return to much later in this book.59 For the moment, it is apt to move on to a brief consideration of the political system in Canada as it relates to ‘peace, order and good government’. (Con) Federation and ‘responsible’ government The nature of Canadian federalism has been described as imperfect by no less a legal authority than the Supreme Court of Canada,60 a critical institution in mediating the sometimes intense political tensions (witness the attempt at secession by

44  Colonial and Post-Colonial Constitutionalism in the Commonwealth Québec) in that country’s federal political system.61 Not only have the constitutional provisions accorded ‘a measure of paramountcy’ to the federal Parliament through a number of mechanisms which include the reservation and disallowance of pro­vincial enactments, but also through ‘the wide powers to legislate generally for the peace, order and good government of Canada as a whole’.62 The ­interpretation of the provisions has, however, remained contentious. The combination of federalism and ‘responsible’ government – a political system in which government is accountable to the people through their representatives in Parliament – has ‘shaped Canadian public life in decisive ways’.63 This combination of two disparate political leanings is a reflection of the historical fact that Canada’s socio-political, legal as well as administrative practices and policies have oscillated ‘between the opposite poles of British and American experiences’.64 The confederating provinces had, with the exception of British Columbia, all experienced responsible government, so it was not a surprising inclusion in the political and legal arrangements made in 1867.65 The divide between what was Upper Canada (English-speaking) and Lower Canada (French-speaking) remains a significant factor in Canadian public life.66 Essentially, the Quebecois have had a long-standing demand for special recognition as a nation with distinct needs.67 This has manifested in a secessionist movement and has even fuelled a federal reference to the Supreme Court of Canada.68 POGG has had a contentious history in, and close foundational links with, federalism in Canada. This is because Canadian federalism evolved as a consequence of ‘struggles over the norms of mutual recognition between territorially based groups’69 – the English and the French. The role of the judiciary has been important in moderating the continued contestations that have attended the arrangement.70 In that process, POGG, more than any other provision of the Canadian Constitution, has been called into issue between the contending parties. The POGG power has not only imperial historical pedigree but also forms the foundation of the grant of local legislative power to the colonies and provinces of Canada. This history is at the heart of the continued contention on the ­constitutional and legislative reach of the power.

Canada’s constitutional system and judicial review – an outline Outline of Canadian constitutional system An understanding of the basic outlines of Canada’s constitutional system is indispensable to the discussion of the application and significance of POGG given its constitutional nature. In this context, two critical judicial institutions, the JCPC and the Supreme Court of Canada, deserve comment considering their centrality to constitutional ordering in general and the POGG power, subject of this discourse, in particular. Until 1949, the JCPC served as the final court of appeal for Canada. Two explanations have been offered for this. The first is the fact that Canada had not attained independence before the introduction of the

Canada – federalism and the country of ‘peace, order and good government’ 45 major founding constitutional instrument, the Constitutional Act 1867 which, as stated earlier, firmly situated the POGG power in Canadian constitutionalism. Up to that point, appeals lay directly from the colonies to the JCPC. It is common to find that even with independence, appeals still lay from post-independent Commonwealth countries which normally retained the British monarch as head of state until they attained republican status. The second point is that the founding fathers were content, for a number of reasons, for the JCPC to remain the final appeal institution for the country.71 In its capacity as final appellate court, the JCPC decided at least 173 cases interpreting the British North America Act.72 Through this, the JCPC shaped the major contours of Canadian constitutional principles, including the legislative distribution of powers,73 and much of those principles have not changed.74 Chroniclers have observed that ‘the decisions of the first 50 years tended to weaken the central powers of the federal government and strengthen provincial power’.75 This was especially true for the federal power to regulate trade and commerce and in the residual powers of section 91 to legislate for the ‘peace, order and good government of Canada’.76 It has been noted in this regard that the Supreme Court of Canada as successor institution is not bound by JCPC decisions and does in fact reserve the right to ‘examine and review’77 the latter’s decisions.78 Nevertheless, it does feel compelled to provide a thorough explanation of any of its judgments that appear to run contrary to any previous decision of the JCPC.79 The establishment of the Supreme Court of Canada less than two decades after the coming into effect of the Constitution Act 1867 was as much a predictable product of nationalistic pride as any of a number of factors that support the creation of a superior national court in a country evolving from colonialism to independence.80 With the benefit of hindsight, and given the experience in Commonwealth countries in the twentieth century, the eventual cessation of appeals to the JCPC and the conferral of final appeal powers in the highest national court, the Supreme Court in Canada, was only a matter of time. Canada has an essentially unitary court system, with appeals from provincial courts laying to the Supreme Court. The Supreme Court, as the final court of appeal, has jurisdiction over all civil and criminal causes from the provincial courts, whether between individuals inter se or individuals and the government. It also has jurisdiction over constitutional, provincial and federal law. The JCPC also had corresponding jurisdiction before the cessation of appeals to it.81 Judicial review and the peace, order and good government clause While judicial review has been a longstanding feature of Canadian constitutional and legislative practice, Strayer has argued that it is not an automatic outflow of its common law legacy.82 On the one hand, the French-speaking areas were content with the Québec Act 1774 as ‘a guarantee of their law and religion’.83 On the other hand, the English-speaking areas constituted later in time were presumably influenced by the general acceptance of political doctrine of the supremacy of Parliament in Britain as well as natural rights theories which provided the

46  Colonial and Post-Colonial Constitutionalism in the Commonwealth basis of the invocation of a power of judicial review by the courts in the North American colonies forming the United States.84 The BNA Act, which emerged as the foundation of the Dominion Constitution of Canada, has been described as being ‘as prosaic as any municipal charter’,85 devoid of any ‘ringing declarations’ which characterised the US Constitution: ‘justice’, ‘liberty’, ‘freedom’ or even ‘due process’. The BNA Act as the foundational document of Canadian federalism at the time of the union did not assert its supremacy in the typical fashion of federal constitutions. Some scholars of Canadian constitutionalism have suggested that this leaves the constitutional environment as one which generally assumes parliamentary supremacy.86 This view finds strong support in the fact that the preamble to the BNA Act states that the Dominion was formed as a federal union with a constitution similar in principle to that of the United Kingdom.87 Even more telling is the fact that the BNA Act does not contain explicit provisions for judicial review, nor guarantee it as a function of the courts.88 However, this view has been contested and has not, at least, held sway in the practice of judicial review in the Canadian constitutional experience.89 Hence, it seems more accurate to consider that the adoption of federalism alongside responsible government imports an ‘internal contradiction’ which is at least partially resolved in the introduction of a scheme of legislative powers in the substantive provisions of the BNA Act, as the majority of the Supreme Court stated in the Patriation Reference case.90 Notwithstanding the gap of explicit provision for judicial review in the BNA Act, there has been at least implicit understanding that the power of judicial review inheres in the courts in virtually the same way as it does, for instance, in the United States and the courts have the power to and have declared legislation or parts of it void.91 This power of judicial review was, at least in practice, not considered antithetical to but rather consistent with and supportive of parliamentary democracy.92 This would appear inevitable bearing in mind the role of the judiciary as ‘an umpire in the federal system’.93 In other words, there was a political need to secure institutional arbitration of the interaction of federal and provincial powers which, though enumerated, sometimes inevitably overlapped.94 This was especially significant before the fundamental constitutional changes that were made to the Canadian constitutional framework in 1982. However, since 1982 it has become generally agreed that the Canadian constitution is supreme and the country’s legislative democracy has been transformed into a constitutional one.95 This is because section 52(1) of the Constitution Act 1982 firmly lays to rest any doubt on the supremacy of the Canadian Constitution. Section 52 (1) provides that ‘The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.’ This includes the Constitution Act 1982, the Canada Act 1982, of which it is a schedule, the BNA Act and 29 other statutes contained in the Schedule to the Canada Act as ­provided for in section 52(2) of the Constitution Act 1982. One of the most profound effects of the foregoing historical scenario on the

Canada – federalism and the country of ‘peace, order and good government’ 47 development of Canadian constitutionalism is that, for the most part (and certainly before the 1982 Canadian Charter of Rights), judicial review has centred ‘almost exclusively’96 on cases dealing with issues of the division of powers between the various provinces and the central government (‘the Dominion’).97 In effect, POGG is central to the practice of judicial review in the jurisdiction. This is because section 91 of the BNA Act, which contains the POGG clause, along with section 92 constitutes the two principal sections in the Canadian Constitution around which the process of judicial review revolves in Canada.98 However, POGG has ranked as the most analysed and controversial aspect of Canadian constitutional discourse. It was described by Bora Laskin, leading academic and former Chief Justice of Canada,99 as the ‘favourite “whipping boy”’100 of ­commentaries on Canadian constitutional law.

Peace, order and good government in Canadian constitutionalism Before proceeding to the judicial considerations of POGG, an insight into the political context in which judicial constructions of POGG took place is ­illuminating to the analyses of it as a form of power. Power in context – federalism and the courts The significance of the political context of the judicial construction of the POGG power cannot be overstated. Alan Cairns’ seminal article on the JCPC and the criticisms of its role in Canadian constitutionalism is particularly useful in this regard.101 Cairns discussed the sociological context of the work of the JCPC and the Supreme Court relating to sections 91 and 92 of the Constitution Act 1867 from a legal, political and historical perspective. Cairns’ account has, with a ­measure of justification,102 been strongly criticised for presenting a ‘resultoriented constitutional jurisprudence’103 and not engaging with the substantive ­jurisprudence of the JCPC.104 Nonetheless, Cairns provides a robust account of a critical factor in the decentralising approach of the JCPC, particularly in its interpretation of sections 91 and 92 of the BNA Act. He noted that the JCPC and the Supreme Court, in turn, have faced considerable criticism of their adjudication of constitutional matters regarding the Constitution Act 1867 in general and, in particular, the division of powers in sections 91 and 92 of that Act.105 It should be borne in mind that POGG is the first part of section 91 and is in fact at the centre of most of the constitutional contestations between the federal and provincial governments. According to Cairns, in the period before and after the abolition of appeals to the JCPC in 1949, evaluations of its work (essentially about the POGG power vis-à-vis provincial powers) followed the ‘French–English cleavage in Canada’.106 Critics described the JCPC in various terms, which ranged from ‘measured criticism’ to ‘vehement denunciation’ and from ‘mild disagreement’ to ‘bitter sarcasm’.107 In particular, two members of the JCPC, Lords Watson and Haldane,

48  Colonial and Post-Colonial Constitutionalism in the Commonwealth were ‘caricatured as bungling intruders who, either through malevolence, stupidity, or inefficiency, channelled Canadian development away from the centralized federal system wisely intended by the Fathers’.108 Nonetheless, the JCPC, not surprisingly, had its admirers, who showered it with immense praise.109 Consequently, the ‘divergence of opinion’ that ensued manifested ‘in French– Canadian support for the Judicial Committee, with opposition on grounds of nationalism and its provincial bias largely found in English Canada’.110 This has foreshadowed and reflected on different expectations of the Supreme Court on issues of judicial review.111 As Cairns further found in his survey of the evaluations of the work of the JCPC, the context is central to the passions which the JCPC’s decisions evoked. That context produced a deeply divided perception of how the JCPC had interpreted the Constitutional Act 1867 generally (and, in particular, the POGG power) such that the JCPC was transformed ‘into a scapegoat for a variety of ills which afflicted the Canadian polity’.112 This highlights the significance of POGG in the Canadian setting. That setting has been described as a necessarily conflicting one given the desire to secure the confidence of two sides (West and East Canada) with contestable and indeed divergent aspirations.113 It is particularly important to observe that the JCPC’s role in the interpretation of the Constitution Act 1867 would have been coloured by political considerations in a very peculiar way. This is an outflow of the fact that it was not simply an imperial court but actually part of the highest political institution responsible for advising the British Crown in the administration of its Empire. Indeed, the head of the JCPC, the Lord Chancellor, was also a senior member of the imperial tribunal as well as the British Cabinet. This circumstance not only potentially situated the JCPC as a final appellate court in violation of a cardinal principle of judicial office, independence as we now know it, but also one that could manipulate decisions for wider and extrinsic political considerations that did not necessarily coincide with the interest of justice and fairness. This issue of how the nature of the JCPC played out in its adjudication of POGG is discussed later in the book in the larger context of the rule of law, politics and the role of the judiciary.114 Residual nature of peace, order and good government power in Canada An important starting point for understanding POGG in Canada is to note that it is majorly a residual power in the context of the BNA Act.115 This is because the location of the residual power in a federal system, as its name suggests, has to accommodate legislation for unstated topics in the legislative lists of powers.116 The Supreme Court in Reference Re Newfoundland Continental Shelf (‘Continental Shelf Reference’)117 faced the question of who, between Canada and Newfoundland, had the right to explore and exploit the mineral and other natural resources of the seabed and subsoil of the continental shelf, in the area offshore of Newfoundland. The Supreme Court unanimously held that continental shelf rights are in pith and substance an extraterritorial manifestation of external sovereignty. Newfoundland did not at any time acquire external sovereignty under international law. The

Canada – federalism and the country of ‘peace, order and good government’ 49 continental shelf, being outside the boundaries of Newfoundland, does not fall within any of the enumerated heads of section  92; therefore legislative competence falls to Canada under the POGG power in its residual capacity.118 In a recent decision, Chief Justice McLachlin in Québec (Attorney-General) v Lacombe,119 restated the position of the Supreme Court of Canada that the POGG clause conferred exclusive powers on Parliament on the placement of aerodromes because aeronautics falls within ‘a residuum of national importance, which brings it under Parliament’s power to legislate for the peace, order and good government of Canada (“POGG”)’.120 This is despite the fact that property rights which are implicated in the placement of aerodromes fall squarely within the purview of provincial jurisdiction.121 However, this is the conventional reading of the POGG power in section 91 of the BNA Act.122 This flows from the view that rather than being a straightforward matter, the drafting of the residual power in the BNA Act is ‘a triumph of ambiguity and uncertainty’.123 Some have argued the existence of another residuary clause in section 92(16) of the BNA Act which grants a complementary residual power to the provincial legislatures. This is a power over ‘generally all other matters of a merely local or private nature in the province’.124 On this ‘less conventional’125 account, the POGG power is not the only residuary clause in the BNA Act but, at best, the major one.126 It is germane that in elucidating the scope of POGG in Canada, the JCPC stated its extraterritorial aspect. Speaking through Lord Macmillan in the important case of Croft v Dunphy,127 the JCPC stated that the Dominion of Canada has jurisdiction, apart from the Statute of Westminster, to make its laws operate outside Canada, as far as such operation is necessarily involved in the power to make laws over any given subject matter. According to Lord Macmillan, once it is determined that a particular issue falls within the category over which the Dominion Parliament has competence by virtue of its power to legislate for the POGG of Canada, or as being one of the subjects enumerated in section 91 of the BNA Act, there is ‘no reason to restrict the permitted scope of such legislation by any other consideration than is applicable to the legislation of a fully sovereign State’.128 This position speaks narrowly to the recognition of extraterritorial applicability of the POGG power. In more general terms, however, it also constitutes explicit affirmation of the plenary nature of the legislative powers conferred on the Dominion legislature. The POGG clause has been the subject of contentious, if not confusing elucidation.129 Under Canadian constitutional principles, the application of the clause has followed three distinct courses. It is invoked to fill ‘gaps’ in the distribution of (constitutional) powers, emergency and to address matters of ‘national concern’ (or provincial incapacity).130 These courses were judicially identified by Justice Estey in a review of the POGG power in Labatt v Attorney-General of Canada (‘Labatt’).131 He stated that the principal authorities dealing with the range of the federal jurisdiction under the POGG clause are illustrated by three types of cases.132 Fort Frances Pulp and Power Co Ltd v Manitoba Free Press Co Ltd and others (‘Fort Frances’)133 bases the federal competence on the existence of national emergency – the emergency branch. The POGG power in In re Regulation and Control of Radio Communications

50  Colonial and Post-Colonial Constitutionalism in the Commonwealth (‘Radio Reference’)134 and In re Regulation and Control of Aeronautics in Canada (‘Aeronautics Reference’)135 was based on the fact that the subject matter did not exist at the time of Confederation and clearly cannot be put into the class of matters of merely local or private nature – the gap branch. The third branch illustrated by AttorneyGeneral of Ontario v Canada Temperance Federation (‘Canada Temperance’)136 arises where the subject matter goes beyond local or provincial concern or interest and must, from its inherent nature, be the concern of the Dominion as whole – the national concern branch. Consideration of the three branches is central to the discussion of POGG in Canada. However, as highlighted in Chapter 1, three of four loci classici cases on POGG originated from the Canadian jurisdiction. Taking into account their impact on and their recurring reference in litigation involving the power and, thus, wider implications for law and politics across a variety of Commonwealth constitutions (some of the most important of which will be discussed in this study), it is relevant to first discuss those cases at some length. Three key cases Russell v The Queen137 This is the first Canadian case decided by the JCPC on POGG. It arose from the attempt to control the sale of alcohol all over Canada. The Temperance Act 1878 was passed by the Canadian Parliament to allow any municipality or county to ban the sale of liquor with a plebiscite. The aim of the Act, as the preamble stated, was to promote ‘temperance’ in the Dominion through ‘uniform legislation in all the provinces respecting the traffic in intoxicating liquors’. It was adopted by the city of Frederickton in the Province of New Brunswick. Charles Russell (the appellant) was charged with violating the Canada Temperance Act and was convicted by the police magistrate. Russell’s appeal to the Supreme Court of New Brunswick failed. The Canadian Supreme Court similarly rejected an appeal on the matter taking the view that the matter fell within Dominion powers on trade and commerce under section 91 (2) of the BNA Act. Both courts relied on an earlier decision of the Supreme Court of Canada on the same legislation in Barker v City of Frederickton,138 which was not appealed further. This led to a final appeal to the JCPC. It was argued for the appellant that the Canada Temperance Act was ultra vires of the federal government’s powers as the legislation related matters within the exclusive legislative competence of the provinces as against the central government. The JCPC observed that the competency or otherwise of the Canadian Parliament to pass the legislation depended on the construction of the distribution of legislative powers in sections 91 and 92 of the BNA Act. It rejected the arguments that the legislation impugned the provisions of section 92 (9) as the temperance legislation was not a fiscal law but, in point of fact, was objected to in Frederickton for diminishing municipal revenue. It went on to state, per Sir Montague Smith, that the fact that legislation will be prejudicial to the revenue-generating capacity of the municipality did not preclude the Dominion

Canada – federalism and the country of ‘peace, order and good government’ 51 Parliament from passing the legislation under its general power to make laws for the POGG of the Dominion. The JCPC dismissed the challenge under the property and civil rights argument despite acknowledging that liquor could be held as property. This was because, like firearms and explosives, which could also be similarly held, legislation restricting their sale, custody or removal, on the grounds of public safety as well making it a criminal offence by providing for fines or terms of imprisonment, could not be deemed a law in relation to property as contemplated in section 92 of the BNA Act. Speaking for their Lordships, Sir Montague Smith had further averred that: In however large a sense these words are used, it could not have been intended to prevent the Parliament of Canada from declaring and enacting certain uses of property and certain acts in relation to property, to be criminal and wrongful … few, if any, laws could be made by Parliament for the peace, order and good government of Canada which did not in some incidental way affect property and civil rights.139 Sir Montague Smith also noted that the ‘true nature and character’ of the legislation in issue must always be determined in order to correctly ascertain the class of subject to which it belonged. In rejecting the third leg of the argument of the case for the appellant, their Lordships held that the legislation did not relate to matters of a local nature. It was clear that the object of the legislation was to ensure uniformity on the issue of temperance throughout Canada and its scope was general. The legislation was meant to apply ‘a remedy to an evil which is assumed to exist throughout the Dominion’ and the fact that a ‘local option’ – the democratic opportunity to adopt the legislation formed part of its provisions – did not detract from the object of legislative uniformity. So far, it seemed clear that this decision was based on the POGG only. However, Sir Montague Smith introduced some ambivalence to this predominant view of the decision in his concluding remarks. In the last paragraph of his judgment, after stating that the legislation in issue did not fall into any of the subjects assigned exclusively to the provincial legislatures, he went on to state that it was also not necessary to determine whether it fell into any of the classes in section 91 of the BNA Act. Relevantly too, Sir Montague Smith went on to declare that in ­refraining from discussing the point, the JCPC: was not to be understood as intimating any dissent from the opinion of the Chief Justice of Canada and the other Judges, who held that the Act, as a general regulation of the trafficking in liquor throughout the Dominion, fell within the class of subject, ‘the regulation of trade and commerce,’ enumerated in that section, and was, on that ground, a valid exercise of the legislative power of the Parliament of Canada.140 This observation arguably undercuts the assumed solid premise of the decision on POGG and brings into question the correct ratio decidendi of the case. Surely, if

52  Colonial and Post-Colonial Constitutionalism in the Commonwealth the Supreme Court of Canada was right about the temperance legislation as an expression of the trade and commerce power, a specific head of power in section 91(2), then the basis of the JCPC decision in the POGG power in section 91(1) was at best doubtful since there would be no requirement to call in the residual provisions of the latter. Despite this, it has remained one of the uncanny aspects of Commonwealth constitutionalism that Sir Montague Smith’s remark has for the most part remained unchallenged and attracted little scrutiny. It is of course relevant to note in this regard that Russell was directly challenged in Canada Temperance141 but what was in issue was not the equivocation this remark of Sir Montague Smith represents. It was open to their Lordships to uphold the temperance legislation in Russell on the important but different and specific trade and commerce power of the Dominion Parliament as did the Supreme Court of Canada and, indeed, as was implicit in various parts of the speech delivered by Sir Montague Smith. As will become clear in the discussion of the POGG power in Canada especially, the power is thought of in terms of its application to three different branches, namely gap, emergency and national dimension, depending on how the purpose of the application of the power is construed. In this case, it is not clear from the judgment on what branch of the POGG power the case was determined, which is not at all surprising given the fact that this is an early case. Going by the tenor of Sir Montague Smith’s speech quoted above, it is logical to assume there is not a strong case to be made for the gap branch. There is also little to support the proposition that it was made under the emergency branch as suggested by Viscount Simon Haldane in Toronto Electric Commissioners v Snider (‘Snider’).142 In Snider, Viscount Simon Haldane had stated that the ratio in Russell was that: the evil of intemperance at that time amounted in Canada to one so great and so general that at least for the period it was a menace to the national life of Canada so serious and pressing that the National Parliament was called on to intervene to protect the nation from disaster.143 There is good reason to share Ivor Jennings’ dismissal of this view as unfounded both on the facts and the law. It is ‘an assumption which does not appear at all in the case as reported or in the history of Canada’.144 Later refutation of Viscount Simon Haldane’s rationalisation in Snider by Viscount Simon in Canada Temperance is convincing; there was no evidence of an emergency and the legislation was a permanent and not a temporary one.145 In light of this, if the decision in Russell is well-founded, the presumption leans in the direction that it was determined under the national dimension branch. Unlike the case with emergency, there is at least some support in the tenor of the language of the decision given the emphasis Sir Montague Smith placed on the preamble’s stated objective of uniformity in legislation.146 He stated that despite the local option, in passing the legislation, Parliament desired that there should be uniform legislation on the traffic in intoxicating liquors, with a view to promoting temperance in the Dominion; the objects and scope of the legislation were general

Canada – federalism and the country of ‘peace, order and good government’ 53 as the subject was of ‘general concern’.147 It was a law ‘clearly meant to apply a remedy to an evil which is assumed to exist throughout the Dominion’.148 However, the equivocation that characterised the language of the decision casts justifiable doubt even on this proposition. While it is not inconceivable that an Act could be validly made by the Parliament under the introductory POGG clause in section 91 or one of the subheads of section 91, or indeed any other enabling provision of the Constitution Act 1867, it has to be decided under which, of alternative provisions, legislation has been made. This is germane to legislative clarity, executive action and judicial construction of the conduct (allegedly) flowing from such legislation particularly in the context of a federation with the potential for (and actual experience of) intergovernmental contestations. Dale Gibson, in discussing the national dimension branch of the POGG power, has argued that despite Sir Montague Smith’s ‘use of the term “peace, order and good government”’ to describe federal jurisdiction in Russell, the case ‘did not hold that the legislation in question fell within the residual power in the opening words of section 91’.149 Rather: … it may well have been in reference to section 91 in its entirety. All that the case did hold was that since no enumerated provincial power was appropriate, the legislation must have fallen within some federal power. In fact, two enumerated federal powers were suggested as being possibly relevant: ‘criminal law’ and ‘trade and commerce’.150 This view is well supported by Sir Montague Smith’s words in Russell as against the gloss that has for so long been placed on it. It is problematic that their Lordships held at one and the same time that it is not necessary to investigate whether the Act fell into any of the classes of subjects expressly enumerated in section 91 because it came under the POGG clause in section 91(1),151 yet they were ‘not to be understood as intimating any dissent’ from the view that it did in fact come under the regulation of trade and commerce, a power conferred in section 91(2). While the trade and commerce power in section 91(2) is notionally a broad one,152 it is clearly and necessarily not residual (or general for that matter) in its application as the POGG power. There is much force in the view, then, that ‘the Russell case does not, strictly speaking, lay down any binding principles about the federal residual power [POGG]’.153 On scrutiny – i.e. setting it in the Canadian constitutional context foremost – the surplusage implicit in the concluding part of Sir Montague Smith’s judgment diminishes the high precedential value that came to be ascribed to Russell on the purport of POGG in Commonwealth jurisprudence. For instance, Justice Beetz stated in Anti-Inflation Act Reference154 that ‘it is perhaps unfortunate that a case with a history as chequered as Russell be sometimes regarded as the authority which gave birth to the national concern doctrine [of POGG]’.155 Likewise, Justice Dickson (and Pratte with him) observed in the dissenting judgment in R v Hauser156 that ‘quite a number of courts have struggled to rationalize Russell, the best known effort being that of Viscount Simon in Attorney General for Ontario v Canada Temperance

54  Colonial and Post-Colonial Constitutionalism in the Commonwealth Federation (Canada Temperance)’.157 Incidentally, this comment by Justice Dickson in Hauser was itself prompted by the typically oblique reference made to Russell in the leading judgment with regard to the application of POGG.158 Ironically, while there has been some questioning of the reasoning in Russell, this approach has generally not received the sort of attention it deserves in most other Commonwealth jurisdictions, some of which will be discussed later in this book. In Canada, the reasoning in Russell was at least subsequently challenged, even if belatedly, and with less than satisfactory results. There was pressure in Canada Temperance to have Russell overruled by the JCPC, but the argument for this was mainly sidestepped because the decision had survived for so long, rather than for its soundness. Thus, the unjustified pre-eminence of Russell in judicial considerations of POGG is arguably not a measure of the jurisprudential merit of the decision.159 It could be argued that this is a product more of what Laskin describes aptly as the ‘encrustation’160 of common law principle of stare decisis than anything else.161 Notwithstanding the fact that it is often cited as basis for the plenary nature of POGG, the JCPC itself soon abandoned the wide berth of the decision in Russell. The pro-centralist position championed by John A Macdonald, and Lord Carnarvon’s conception of extensive federal powers secured by the clause in the Canadian context, did not survive the decision in the next case that came before the court on the application of the POGG clause: Hodge v The Queen, decided by a panel comprising three members from the Russell case,162 along with two others, but excluding Sir Montague Smith (and Sir James Hannen). Hodge v The Queen163 On 7 May 1881 Archibald Hodge, a tavern owner, was charged with violating sections 4 and 5 of the Ontario Liquor Licence Act 1877, by allowing a billiard game after the tavern had closed for drinking. He was tried and convicted by the police magistrate. An appeal was made by Hodge to the Court of Queen’s Bench for Ontario for the conviction to be quashed on three grounds: that the resolution of the Licence Commissioners was illegal; that the resolution was unauthorised; and that the Liquor Licence Act was ultra vires provincial jurisdiction. The Queen’s Bench quashed the conviction. This decision was reversed on further appeal to the Court of Appeal of Ontario, which held that the Ontario legislature had the power to make such legislation and could delegate it. Hodge further appealed to the JCPC. The main question in this final appeal was whether the Liquor Licence Act, under which the Commissioners had assumed authority to pass the resolution, was valid. It was argued for Hodge that only the Dominion Parliament, acting under section 91 of the BNA Act, and not the Ontario legislature, had the power to pass legislation on liquor traffic. The appellant sought to rely on the decision in Russell as being dispositive of the matter in this point. The JCPC upheld the decision of the Court of Appeal, which it stated was in tandem with its judgment in Russell. It stated that the sole question in Russell was ‘whether it was competent to the Dominion Parliament, under its general powers

Canada – federalism and the country of ‘peace, order and good government’ 55 to make laws for the peace, order and good government of the Dominion, to pass the Temperance Act, 1878’ for the Dominion as a whole or parts of it that decided to adopt it. As far as the JCPC was concerned, the legislation in contention in Russell was different from that in Hodge because it had a federal and provincial ‘aspect’ to it. Thus, it was fit and proper for the Dominion Parliament to legislate on it. As will be discussed in Chapter 3, this ‘aspect’ argument (now known as the ‘double aspect’ doctrine) quickly became highly contentious with regard to the interpretation of POGG in jurisdictional disputes between the Dominion and provinces of Canada in particular, and the purport of sections 91 and 92 of the BNA Act in general. Suffice it to say in relation to the current discussion, the JCPC in this case sought to distinguish the decision in Russell as being made on the basis that the facts in Hodge related to a different type of liquor trade law, namely one that was lacking in ‘double aspect’, completely municipal and hence a matter for the provinces and the municipal legislature. According to the JCPC: the powers intended to be conferred by the Act in question, when properly understood, are to make regulations in the nature of police or municipal regulations of a merely local character for the good government of taverns … and such as are calculated to preserve, in the municipality, peace and public decency, and repress drunkenness and disorderly and riotous conduct. Thus, while POGG was referred to in affirmation of and in distinguishing the decision and facts of Russell, again, the decision itself was not based on ‘peace, order and good government’. To the contrary, Sir Barnes Peacock, in distinguishing Russell, ruled out the application of POGG in section 91 of the BNA Act. Interestingly however, he made reference to ‘good government’, ‘peace and public decency’, as well as repression of ‘disorderly’ conduct as shown in the above quote in describing the legislative intent of the statute in dispute. Louis Riel v The Queen ex parte Riel164 Louis Riel was tried for high treason and convicted in the North-West Territories of Canada on 20 July 1885. The defence did not deny that the acts committed by the accused amounted to high treason but had argued unsuccessfully that Riel was of infirm mind. Riel was sentenced to death and the sentence was upheld on appeal by the Court of the Queen’s Bench of Manitoba (‘Queen’s Bench’). On appeal, it was argued as a fresh point for the defence that the legislation under which the accused was tried was ultra vires the Dominion Parliament. This fresh ground of appeal was rejected by the Queen’s Bench. Riel further brought a petition to the JCPC for special leave to appeal the decision of the Canadian courts. The petitioner stated that the trial court had no jurisdiction to try him for treason and, even if it did, serious procedural errors vitiated the trial. The JCPC conceded the incidence of procedural irregularities but held that these did not affect the substance of the trial. It was further argued (again) that the legislation under which the petitioner was tried was ‘not necessary for peace, order, and good conduct

56  Colonial and Post-Colonial Constitutionalism in the Commonwealth (sic)’ and was, in effect, ultra vires the Dominion Parliament.165 On this latter contention, the JCPC held that the gravamen of the case for the petitioner was that: if a Court of law should come to the conclusion that a particular enactment was not calculated as matter of fact and policy to secure peace, order, and good government, that they would be entitled to regard any statute directed to those objects, but which a Court should think likely to fail of that effect, as ultrà vires and beyond the competency of the Dominion Parliament to enact.166 The JCPC also dismissed this contention. In terms that subsequently became the most pervasive on the purport of POGG across the Commonwealth, Lord Halsbury reiterated the position of the JCPC that: the words are apt to authorize the utmost discretion of enactment for the attainment of the objects pointed to. They are words under which the widest departure from criminal procedure as it is known and practised in this ­country have been authorized in Her Majesty’s Indian empire.167 The reference to India was an allusion to Burah discussed in Chapter 1 in the manner that the four cases came to form the formidable web of judicial authority deriving from the common law principle of precedent-following at the core of Commonwealth jurisprudence, particularly in the area of constitutional interpretation. It is now apt to turn to consideration of the three branches of the POGG in Canada. Filling ‘gaps’ in legislation The ‘gap’ branch fills lacunae in the distribution of constitutional powers because of its residual nature. Its application in this regard has included providing for the obligation of Canada to fulfil international treaties where section 132 of the BNA Act had only provided for this when Canada was part of the British Empire, as the JCPC held in Radio Reference.168 The framers of the Constitution had apparently failed to contemplate and make provisions for when Canada could fulfil its obligations ‘in its own right as an international person’.169 As Viscount Dunedin put it, the ‘idea of Canada as a Dominion being bound by a convention equivalent to a treaty with foreign powers was quite unthought of in 1867’.170 One of the earliest instances of the application of the POGG power in this regard is Citizens Insurance Company v Parsons.171 In 1876, the Province of Ontario enacted legislation regulating fire insurance policies that specified the standard conditions which were ‘deemed to be part of every policy of fire insurance’ made within the province. Under the legislation, an insurance company had the power to exclude any of the additional provisions provided it warned the policy purchaser of such changes.  Parsons purchased insurance from Citizens Insurance Company, a company incorporated under Dominion legislation and carrying on business in Ontario. Parsons suffered a fire accident. When he made a claim from

Canada – federalism and the country of ‘peace, order and good government’ 57 Citizens Insurance Company, it refused to pay claiming that it was not bound by Ontario’s Provincial Insurance Act because it was ultra vires the province’s powers. It was argued for Parsons that the legislation came within the provisions of section 92(13) on ‘Property and Civil Rights in the Province’ and thus within provincial competence. Their Lordships held that POGG provides a basis for Dominion incorporation of companies with inter-provincial objects but this does not extend to those whose scope of business is limited to the provinces, as was the case with Citizens Insurance Company. Thus, the Ontario legislation was valid and the federal POGG powers could not be called in aid of the appellant. The lacuna in making constitutional or legislative provisions over the conduct of an important aspect of external affairs was addressed by the JCPC in Radio Reference as one appropriate for the POGG power to resolve in favour of the Dominion. The JCPC, per Viscount Dunedin, noted that it was the Dominion as a whole which was amenable to other parties to the treaty and was thus the fit and proper party to carry out its obligations by making legislation in that respect. Viscount Dunedin considered that ‘to prevent individuals in Canada infringing the stipulations of the convention, it is necessary that the Dominion should pass legislation which should apply to all the dwellers in Canada’.172 Viscount Dunedin went on to state that the existence of a gap with regard to the power of Canada as a Dominion to enter into and domestically enforce international instruments was the outcome of the gradual development of the position of Canada vis-à-vis Great Britain. It was not to be expected that such a matter would have been dealt with in explicit words in either section 91 or section 92. In the circumstance of the gap, such legislation must be deemed to fall: within the general words at the opening of sec. 91, which assign to the Government of the Dominion the power to make laws ‘for the peace order and good government of Canada in relation to all matters not coming within the classes of subjects by this Act assigned exclusively to the Legislatures of the Provinces’ [in section 92].173 It is relevant to note that the position of the JCPC in this case (as with many others) has been the subject of substantial adverse comment. In criticising the decision, which he described as ‘another peculiar twist’174 to the interpretation of the Canadian Constitution, John Ewart disagreed with what he considered an inappropriate expansion of the legislative powers of the Dominion through the POGG clause. The invocation of the POGG powers by the JCPC in this way was beyond the contemplation of the framers of the Constitution Act as well as Canadian lawyers. Ewart was emphatic that this position was not argued for by any of the parties in the case because ‘Nobody imagined that the Dominion Government had any such authority.’175 As far as he was concerned, ‘No Canadian lawyer could have thought of it.’176 However, the JCPC came to the opposite decision in Attorney-General for Canada v Attorney-General for Ontario and others (‘Labour Conventions’).177 In 1935, Canada ratified three conventions prepared by the International Labour Organisation.

58  Colonial and Post-Colonial Constitutionalism in the Commonwealth Parliament passed three laws, namely the Rest in Industrial Undertakings Act, the Minimum Wages Act and the Limitation of Hours of Work Act, implementing the details of the international treaty to give domestic effect to them. The provinces, led by Ontario, challenged the new legislation, claiming that it was invalid and unconstitutional because the power to legislate in these areas belonged to the provinces under the Constitution Act 1867. The Supreme Court was divided on the issue but essentially decided in favour of the provinces (in three different cases). The Governor-General sent the matter by reference-in-council to the JCPC. The Attorney-General for Ontario contended that the legislation in question was bad insofar as it was based on conventions adopted by the International Labour Conference in accordance with the relevant articles of the Treaty of Versailles. However, he submitted that the legislation was within the Dominion’s powers under the power to legislate on POGG. New Brunswick and British Columbia submitted that the legislation was ultra vires on all grounds because the subject matter of each of the Acts was by section 92 of the British North America Act within the exclusive legislative competence of the provincial legislatures. It was argued for the Dominion that the legislation could be justified either under section 132 of the British North America Act as being legislation necessary or proper for performing the obligations of Canada or of any province thereof, as part of the British Empire, towards foreign countries, arising under treaties between the Empire and such foreign countries, or under POGG in section 91 of the BNA Act 1867. The JCPC, relying on Radio Reference, stated that section 132 did not apply. However, it went on to state that POGG did not apply either. Rather, it agreed with the provinces that the legislation affected civil and property rights and was covered by section 92 of the BNA Act. That Radio Reference had close affinity with the facts of Labour Conventions was obvious and the JCPC acknowledged that the decision in the former appeared to present some difficulty if not entirely adopted in the present case. Nonetheless, speaking for the JCPC, Lord Atkin controversially distinguished it from that case. Lord Atkin took the position that a close examination of Radio Reference shows that the true ground of the decision was that the convention in the case dealt with classes of matters which did not fall within the enumerated heads or subjects in section 92 or even section 91, unlike Labour Conventions, which related to subjects within section 92 of the BNA Act.178 The JCPC went on to state that there was a need to recognise the inter-provincial compact, to which the BNA Act gave effect, which requires that the heads of provincial legislation must be respected even in the conduct of treaties by the Dominion. Their Lordships held that Radio Reference did not ‘afford a warrant for holding that legislation to perform a Canadian treaty is exclusively within the Dominion legislative power’.179 The Dominion could not, under the guise of a treaty, impose legislation and duties on the provinces if it could not do so under the legislative distribution of powers in the BNA Act which requires protection of the autonomy of the latter. Their Lordships noted that Quebec, for instance, with its separate jurisprudence on both property and civil rights, required ‘loyal adherence to her constitutional right to the exclusive competence of her own Legislature in these

Canada – federalism and the country of ‘peace, order and good government’ 59 matters’. Lord Atkin stated further that ‘while the ship of state now sails on larger ventures and into foreign waters she still retains the water-tight compartments which are an essential part of her original structure’.180 The awkward implication of the decentralisation of authority over the implementation of Canada’s treaty obligations which the decision in Labour Conventions portends and its implications for the exercise of sovereign powers of statehood were not lost on their Lordships. As such, they cautioned that it should not be thought that the implication of their decision was that Canada was incompetent to legislate in performance of treaty obligations. Rather, ‘in totality of legislative powers, Dominion and Provincial together, she is fully equipped’. However, the constitutional waters were muddied when they further held that where, in the exercise of this sovereign power, the subject matter of the conventions, to use the Canadian constitutional term, ‘trench’ on provincial subject matters, legislation can only be legitimately made ‘by cooperation between the Dominion and the Provinces’. In other words, provisions of bilateral and multilateral treaties that will impact on legislation of the provinces can only be enforced with their consent. This arguably implies either multiple sovereignties in the country or a severely fractured one from the perspective of international law. This approach has been criticised as being unduly restrictive of Dominion powers.181 The inelegant effect of the position, as Forsey observed, is that: … the government of Canada may negotiate, sign and ratify any treaties it sees fit, the Parliament of Canada may pass legislation only where the subject falls within the enumerated heads of section 91 plus whatever further jurisdiction it may exercise under ‘peace, order and good government’.182 The judicial attitude to a critical issue which affects the whole of Canada places the country in a ‘precarious position so far as international obligations were concerned’.183 Despite this, due to the combination of a reluctant Supreme Court and the doctrine of precedent, the Labour Conventions case ‘remains the black-letter law’.184 It is considered appropriate to expect that a general power of the nature of POGG as previously held (but arguably speciously distinguished) in Radio Reference will be a logical resort in the event that there is no clear statement of treaty-making powers in the national government. Ironically, this case has not been overturned despite the awkward implications for the implementation of international treaties by Canada where such treaties have implications for provincial legislation.185 POGG power and ‘emergency’ in Canada In the important case of Anti-Inflation Act Reference,186 Justice Ritchie provides a useful definition of what the emergency branch of POGG is. Emergency of the nature envisaged here exists when: there can be said to be an urgent and critical situation adversely affecting all Canadians and being of such proportions as to transcend the authority vested

60  Colonial and Post-Colonial Constitutionalism in the Commonwealth in the Legislatures of the Provinces and thus presenting an emergency which can only be effectively dealt with by Parliament in the exercise of the powers conferred upon it by s. 91 of the British North America Act ‘to make laws for the peace, order and good government of Canada’. The authority of Parliament in this regard is, in my opinion, limited to dealing with critical condi­tions and the necessity to which they give rise and must perforce be confined to ­legislation of a tem­porary character.187 This definition typifies the delimitation of the emergency branch of the POGG power by the JCPC. The emergency branch of the POGG received the most sustained support from the JCPC and it is this branch of the POGG power that has any vestige of a centralist outlook in the decisions of the JCPC.188 This is despite the fact that, unlike the Nigerian constitutional experience, there was never mention of any link between POGG and emergencies or, indeed, of emergencies at all in the BNA Act. The emergency branch provides a constitutional basis for the Canadian Parliament to make legislation of a temporary nature on issues which would ordinarily fall into the domain of the provinces. While the JCPC could have adopted the narrow jurisprudential line that legislation should be in tune with the distribution of powers in sections 91 and 92, their Lordships recognised plenary federal powers over emergencies.189 Fort Frances is a notable case that underpins the recognition of the emergency branch.190 The JCPC upheld legislation, the War Measures Act 1914, under which the federal government fixed the price as well as quantity of newsprint produced in the country. This was an issue jurisdictionally designated to the legislative competence of the provinces. The validity of this law was upheld on the basis of POGG. Viscount Haldane, speaking for their Lordships, stated the justification for the recognition of this implied power of the Dominion Parliament. His Lordship averred that in circumstance of war, preservation of national life may require ‘the employment of very exceptional means, the provision of peace, order and good government for the country as a whole may involve effort on behalf of the whole nation’.191 In such circumstances, individual interests may have to be ‘subordinated to that of the community in a fashion which requires Section 91 to be interpreted as providing for such an emergency’.192 Further, whereas the general control of property and civil rights ‘for normal purposes’ continues to reside in the provincial legislatures,193 issues may arise ‘by reason of the special circumstances of the national emergency’ which concern ‘nothing short of the peace, order and good government of Canada as a whole’.194 Speaking further, Viscount Haldane stated that this was the case because in such situations, proprietary and civil rights were ‘in new relations which they do not present in normal times’195 and these relations which ‘affect Canada as an entirety fall within s. 91 because in their fullness they extend beyond what s. 92 can really cover’.196 As a consequence, ‘the kind of power adequate for dealing with them’ was only to be found ‘in that part of the constitution which establishes power in the State as a whole’.197 It was not one that could be ‘reliably provided for by depending on collective action of the Legislatures of the individual Provinces

Canada – federalism and the country of ‘peace, order and good government’ 61 agreeing for the purpose’.198 Significantly too, the JCPC held that the operation of such legislation (though temporary) and the exercise of the emergency power could continue after the cessation of the war where its effects persisted. The duration of such legislation was a matter for ‘statesmanship’ and not within judicial competence.199 In other words, it was a matter of policy rather than a question of law. In a disturbing decision, Cooperative Committee on Japanese Canadians and another v Attorney-General of Canada and another (‘Japanese-Canadians’),200 the JCPC upheld the deportation of Japanese-Canadians under the POGG power. Three Orders in Council were made by the Governor-General in Council based on the War Measures Act. This followed the Second World War and the defeat of the axis powers (principally Germany and Japan from the Canadian perspective) by the allied powers. Section 3(b) of the Act provided for the power of the GovernorGeneral to ‘make such orders and regulations, as he may by reason of the existence of real or apprehended war, invasion or insurrection, deem necessary or advisable for the security, defence, peace, order and welfare of Canada’201 to effect deportation. It was alleged that some Japanese-Canadians had requested to be deported and it was desirable to make legislation for not only those, but other JapaneseCanadians. The deportations were clearly discriminatory and the use of power condemnable since the Japanese-Canadians were not only interned through the legislation, their property was also sold to pay the costs of their internment. However, the JCPC – alluding to the principle of separation of powers and parliamentary supremacy – held that the wisdom of the Dominion Parliament as to what was in the best interest of Canada was not to be questioned. Lord Wright, speaking for their Lordships, stated that it was germane to protect the interests of the Dominion and that this rested with the Parliament of the Dominion. It was for Parliament rather than the courts to ‘consider the wisdom or the propriety of the particular policy which is embodied in the emergency legislation’.202 In Reference re Wartime Leasehold Regulations (Wartime Leasehold Reference),203 the Supreme Court, in a unanimous decision, upheld the continued validity of rent control regulations made under the War Measures Act204 after the cessation of the Second World War. Adopting the decisions of the JCPC in Fort Frances and Japanese-Canadians, the Court, on reference from the Governor-General in Council, upheld as valid the Wartime Leasehold Regulations 1941, which continued in force after the end of the war in all the provinces of Canada (except Newfoundland). The Regulations followed the provisions of the National Emergency Transitional Powers Act 1945 and the Continuation of Transitional Measures Act 1947 (as amended), as well as some Orders in Council authorised by those statutes. It was argued for Quebec that the moment the war, as distinguished from its aftermath, had ended, the emergency by which the Regulations were justified came to an end. As a result, it was necessary to their continued validity that the state of things immediately following should constitute a new emergency. In this event, such would amount to a peace time emergency and require those supporting the continuance of the central power (under POGG) to

62  Colonial and Post-Colonial Constitutionalism in the Commonwealth show the existence of such state of things. This proposition was rejected by the Supreme Court. Chief Justice Rinfret held that Parliament, under powers implied in the Constitution, may, for the POGG of Canada as a whole, in time of national emergency, assume jurisdiction over property and civil rights which under normal conditions are matters within the exclusive jurisdiction of the provincial legislatures. Such a decision will typically not be questioned by the courts.205 The Court also stated that while an emergency was required to empower the Dominion Parliament, the cessation of war did not automatically lead to the eradication of its adverse effects. Perhaps the clearest statement of the reasoning on this point was that of Justice Rand, who stated that it is the nature of the legislation itself rather than the existence of emergency that must determine whether or not it is valid. As Justice Rand further put it, ‘It is the conditions brought about by war that justify the regulation here; and the narrow question is whether the regulation can continue while the conditions remain.’206 In similar vein, Justice Taschereau stated that war leads to social and economic dislocation and its ‘aftermath brings unstable conditions which are settled only after a period of necessary readjustment, during which the emergency may very well persist’.207 The Supreme Court went on to hold that unless the contrary was proven, the courts will refrain from second-guessing Parliament on the position that a national emergency continues to exist which necessitates the continued existence of temporary regulations made to ensure an orderly transition from war to peace.208 However, the locus classicus on the emergency branch is the Anti-Inflation Act Reference case mentioned earlier.209 The Canadian Parliament enacted the AntiInflation Act210 on 15 December 1975 with retroactive effect to 14 October 1974 to provide for the restraint of profit margins, prices, dividends and com­pensation in Canada as a crucial measure for the containment and reduction of infla­tion. The Act provided for the establishment by the Governor-in-Council of guidelines for the restraint of prices and profit margins, compensation of employees and dividends. By virtue of section 4(1) the guidelines applied to the government of Canada and its agents and the provincial govern­ments and their agents. By section 4(2) it did not purport to apply to matters generally within the provincial public sector, but section 4(3) and (4) provided that the Minister might, with the approval of the Governor-in-Council, enter into an agreement with the government of a province to make the Act binding in accordance with the terms of the agreement in that province and its public sector. Eight of the 10 territories had at the time of the reference actually agreed in this way. The Act, as supplemented by the guidelines, which were promulgated on 3 February 1976, estab­lished supervision, control and regulation of prices, profits, wages, salaries, fees and dividends by way of moni­toring and limiting increases in order to combat inflation. The Governor-General, acting on powers conferred on him by the section 55 of the Supreme Court Act, referred two questions regarding the validity or otherwise of the legislation to the Supreme Court. The first was whether the Anti-Inflation Act was ultra vires the Parliament of Canada either in part or whole and, if so, in

Canada – federalism and the country of ‘peace, order and good government’ 63 what particular or particulars and to what extent. The second question was that if the Anti-Inflation Act was intra vires the Parlia­ment of Canada, was the agreement made between the Province of Ontario pursuant to the Act effective to render it binding on, and the Anti-Inflation Guidelines made under it appli­cable to, the provincial public sector in Ontario as defined in the Agreement? The Attorney-General of Canada, fully supported by the Attorney-General of the Province of Ontario, relying primarily on Canada Temperance, argued that the Anti-Inflation Act was supported by and valid under the opening words of section 91 of the British North America Act, as being a law for the POGG of Canada in relation to matters not coming within the classes of sub­jects assigned exclusively to the legislatures of the provinces. This was because the subject matter, it was argued, went beyond local provincial concern or interest and was from its inherent nature the concern of Canada as part of Canadian monetary system, which was an exclusive federal matter. They argued in the alternative that there was an economic crisis amounting to an emergency or exceptional peril to economic stability which justified federal intervention. At the least, there was a reasonable apprehension of it which supported federal intervention through the AntiInflation Act. Both the Attorneys-General of Quebec and Saskatchewan contended that the Act could be supported only on an emergency basis but took no position on whether such a basis of support was shown. The Attorneys-General of British Columbia and Alberta on their part both took the position that the legislation was an unconstitutional interference with the provincial private sector, being an interference with provincial regulatory authority, with contrac­tual arrangements in the provinces and with the operation of businesses within provincial legislative authority. They conceded that the Parliament of Canada could enact such legislation in an emer­gency, but the mere existence or persistence of inflation did not, in their submission, evidence an emergency which required federal action only and, in any event, there was no sufficient evidence, either from the terms of the ­Anti-Inflation Act or otherwise, to show that an emergency existed. In a majority decision (7–2), the Canadian Supreme Court upheld the legislation as a whole. The Court held that the Parliament recognised the prevailing situation as contrary to the interests of all Canadians and, as such, such containment and reduction of inflation was a matter of serious national concern. It held that a high rate of inflation qualified as an emergency which empowered the Dominion Parliament to invoke the emergency branch of POGG.211 In the leading judgment, Chief Justice Laskin held that matters of social and economic policy were in issue and these required political, rather than judicial, judgment. Chief Justice Laskin further stated that the Supreme Court would be ‘unjustified’ considering ‘all the materials’ placed before it to hold that Parliament did not have a ‘rational basis’ for enacting the Anti-Inflation Act.212 The Court admitted extrinsic e­ vidence – an economist’s unsworn statement supporting the terms of the challenged legislation. It stated that this was not done with a view to determining whether it provided proof of the exceptional circumstances as alluded to by the Dominion government. Rather, the statement was admitted based on its ability to ‘persuade’ the

64  Colonial and Post-Colonial Constitutionalism in the Commonwealth Court of the existence of a ‘rational basis’ for the legislation in question.213 In this way, the Supreme Court also laid down the principle that Parliament could legislate under the emergency branch of POGG in peacetime.214 On the submission that the legislation was covered by the national dimensions branch of POGG in section 91, Chief Justice Laskin expressed the view that since the legislation was covered by the emergency branch of the POGG power, it was not necessary to consider whether it was also valid under the national dimensions branch.215 In their concurring decision (delivered by Justice Ritchie), Justices Martland, Ritchie and Pigeon held that the national dimension branch, though invoked by the central government and stated in the report on which the legislation was based, did not apply to sustain the legislation; rather, it was used in a manner that showed that Parliament had a situation of emergency in mind.216 Justice Ritchie declared his support for the position of Justice Beetz that the national dimensions branch did not provide a basis for the legislation. Justices Beetz and de Grandpré in their dissenting judgment (delivered by Justice Beetz) rejected the view that the emergency or the national dimensions branch provided a valid basis for the Anti-Inflation legislation. Justice Beetz declared it ultra vires the Parliament insofar as it extended to the private provincial sector because it unjustifiably interfered with the exclusive provincial jurisdiction especially property and civil rights and the law of contract in a ‘frontal’ manner and on ‘a large scale’.217 The Anti-Inflation Act, if validated under the national dimensions branch, his Lordship held, would grant so much power to the Canadian Parliament that it would sooner rather than later be able to appropriate most of the legislative competence of the provinces: ‘its recognition as a federal head of power would render most provin­cial powers nugatory’.218 This was because inflation was such a ‘diffuse’ issue, ‘knows no bounds’ and was ‘totally lacking in any specificity’ and, as result, it could not validly be subject to any legislation.219 The emergency branch of the POGG power could also not be supported unless there was a formal declaration of a state of emergency justifying the interference with provincial and local powers.220 In this way, Justice Beetz completely supported the position canvassed by the Attorneys-General of Quebec and Alberta in their arguments before the court. In sum, the development of the emergency branch initially suggests a jurisprudential move to achieve what some constitutionalists would consider to be the intention of the founding fathers to achieve a centralised federation.221 However, a close look at the general approach of the JCPC to the interpretation of POGG shows that the application of the emergency power is more of a narrowing ­technique – a limitation mechanism – in the determination of the extent of federal powers than anything else. This is because it served for a long time as the only recognised outlet for the deployment of federal powers and its validation required special, unusual or dire circumstances. As Eugene Forsey pointedly puts it, the JCPC, through Lords Watson and Haldane, in turn went on to devise a judicial strategy which ‘reduced the Dominion’s “peace, order and good government” jurisdiction to not more than an emergency, capable of exercise only in times of “war, famine or pestilence” on a nationwide scale’.222 At the same time, the

Canada – federalism and the country of ‘peace, order and good government’ 65 property and civil rights power of the provinces ‘became in normal times, for most practical purposes, the real residuary clause of the Canadian Constitution’.223 The situation of emergency became the basis for the JCPC’s evaluation of challenged federal legislation with the result that most of it was struck down for being ultra vires.224 It felt that the matters raised in the respective legislation did not amount to an emergency.225 Thus, the JCPC was able to strike down several arguably deserving attempts by the Dominion legislature to promulgate laws for the whole of Canada. This approach prevailed even when, as in the ‘New Deal’ cases,226 there was, at least in the view of a good number of commentators, legitimate reasons to uphold such legislation in view of the Great Depression.227 The emphasis on the emergency branch by the JCPC led to the scathing observation of Professor Laskin on the interpretive approach of the JCPC as ‘a monument to judicial rigidity and to a complacence which admits of no respectable explanation’.228 The national dimensions branch presents a possibly more viable outlet for the application of POGG in the context of a federation in mediating inter-­ governmental legislative jurisdiction. The Supreme Court of Canada has, at least marginally, expanded the reach of this branch of the POGG power as demonstrated by the decisions in Wartime Leasehold Reference and Anti-Inflation Reference even though some critics insist that the position remains distant from that envisaged by the founding fathers of Canadian federalism.229

Addressing ‘national concerns’ The import of the ‘national concern’ branch of the POGG clause was perhaps first enunciated by the JCPC in Attorney-General of Ontario v Attorney-General of Canada (‘Local Prohibition’).230 It refers to issues which, despite their local or provincial origin, have serious general implications for Canada as a whole. The dimensions justify the Canadian Parliament legislating for the regulation or abolition of such matters. Their Lordships, Lord Watson stated, were not in doubt that such matters, irrespective of their local or provincial origin, ‘might attain such dimensions as to affect the body politic of the Dominion, and to justify the Canadian Parliament in passing laws for their regulation or abolition in the interest of the Dominion.231 However, Lord Watson added that ‘great caution’ was to be observed in distinguishing between local or provincial matters within the jurisdiction of the provincial legislatures, and those which are not ‘merely local or provincial’ and have become matters of ‘national concern’ and thus within the jurisdiction of the Parliament of Canada.232 Prima facie, this is a wide formulation with serious implications for the delimitation of powers in any federal system and would, understandably, constitute a major source of concern for the protection of the provincial (and local) legislative remit. Not surprisingly, it has remained a contentious aspect of the application of the POGG power in Canada. However, for decades, this initial formulation by Lord Watson, perhaps due in part to his call for ‘great caution’ in distinguishing what is local or provincial from that which has ‘become of national importance’,

66  Colonial and Post-Colonial Constitutionalism in the Commonwealth did not enjoy much support as widening the federal legislative remit. Rather, the experience in practice was that of a much criticised jurisprudential preference of the JCPC to severely limit the constitutional and legislative scope of federal powers as against provincial ones,233 which was a principal reason for the final cessation of appeals to it in 1949.234 Of that period, William Eaton observed that the JCPC, on many occasions deployed ‘ingenuity’ in devising judicial interpretations ‘to limit and to thwart legislative intent in the Dominion government’.235 Indeed, there is explicit admission of this centralising preference by Lord Haldane, a key participant in the process, in his effusive praise of Lord Watson, one of his predecessors, along with whom he had been severely criticised by some academics and jurists alike.236 According to Lord Haldane, Lord Watson, who he acknowledged as his mentor, had been instrumental in having the provinces ‘recognized as of equal authority co-ordinate with the Dominion’ and he gave ‘a long series of decisions … which solved many problems and produced a new contentment in Canada with the Constitution they had got in 1867’.237 For many, like Frederick Vaughan, despite a number of interventions by the Supreme Court of Canada as successor institution to the JCPC, any changes in jurisprudential direction on the matter have remained superficial. Rather, the directions of Canadian constitutional jurisprudence (and certainly as related to POGG) remain caught up in the ‘twisted brambles of Watson-Haldane jurisprudence’.238 It has been observed that until the JCPC decisions in Aeronautics Reference and Radio Reference, the general understanding in Canadian constitutionalism had been that the POGG powers in section 91 of the Constitution Act were to be construed exclusively as emergency powers and that ‘in fact, the plenary power with which the Dominion had been clothed, had been reduced to a sword belt’.239 As has rightly been pointed out,240 the formulation of the national interest branch was an adoption of a proposition made by Lord Tomlin in Attorney-General Canada v Attorney-General of British Columbia (‘A-G Canada v A-G Columbia’).241 In that case, Lord Tomlin stated that the ‘general power of legislation’ conferred upon the Dominion Parliament by section 91 of the Constitution Act to make laws with regard to the expressly enumerated heads must be strictly confined to such matters: as are unquestionably of national interest and importance, and must not touch on any of the subjects enumerated in s. 92 as within the scope of provincial legislation, unless these matters have attained such dimensions as to affect the body politic or the Dominion.242 In this vein, Lord Sankey held in Aeronautics Reference that while the courts are obliged to zealously guard provincial powers as provided for in section 92 of the BNA Act, it was important to bear in mind that ‘the real object’ of the BNA Act was to give the central government ‘those high functions and almost sovereign powers by which uniformity of legislation might be secured on all questions which were of common concern to all the Provinces as members of a whole’.243 In Radio Reference, Viscount Dunedin equally observed that one of the reasons

Canada – federalism and the country of ‘peace, order and good government’ 67 why the Dominion had to be conferred with the power to make legislation on and control the power of foreign affairs was the fact that it was individual Canadians and not ‘the Dominion as a whole’ that might infringe the stipulations of international conventions. So, it is the individuals that must ‘be kept in order by legislation and the only legislation that can deal with them all at once is Dominion legislation’.244 POGG has also been applied to assert federal jurisdiction over natural resources not within the territorial control of provinces and to validate the introduction of official national languages.245 Canada Temperance246 has been identified as a decisive case that marks the resurgence of the national concern branch of the POGG power following a number of decisions by the JCPC which had virtually undermined it.247 In Canada Temperance, the JCPC further elucidated the distinct nature and test of the national concern branch of the clause. The test to determine whether any matter belonged to this category is to be found in the subject matter of the concerned legislation. A matter would be of national concern affecting the POGG of Canada if ‘it is such that it goes beyond local or provincial concern or interests and from its inherent nature be the concern of the Dominion as a whole’.248 For Viscount Simon, speaking for their Lordships, examples of such matters include war, pestilence, drug trafficking and the carrying of arms. Hogg has noted that the view expressed by Viscount Simon in Canada Temperance is now the established definition of what constitutes ‘national concern’ in Canada and a number of cases have been decided by the Supreme Court solely on it.249 Canada Temperance is significant in another way as it was a direct challenge to the decision in Russell. Indeed, the Supreme Court, like most legal and political commentators, has described Canada Temperance as ‘a re-run, at a distance of more than sixty years, of the very issue brought before the JCPC in Russell v The Queen’.250 The validity of revised temperance legislation similar to that in issue in Russell was challenged by the Attorney-General of Ontario and others. Their Lordships rejected the attempt to overrule Russell. Viscount Simon noted that the decision had stood for over 60 years and the JCPC had being presented with several opportunities to overrule it if it thought it was wrong. So, the decision was to be considered as ‘firmly embedded’ in Canadian constitutional law and ­impossible to depart from.251 However, the reason for the JCPC not overruling Russell may not be so much the fact that it was in fact rightly decided as much as the political implications of doing so; it would break a convention of the JCPC apparently developed to serve as a form of institutional protection for itself. This is namely the fact that overruling an earlier decision would mean that the JCPC had proffered wrong advice to the Crown.252 Typically, despite the technical position as stated even in Canada Temperance by Viscount Simon that in ‘tendering humble advice to His Majesty, the Board was not bound by its previous decisions,253 it understandably virtually shied away from critical opportunities (as presented in this case) from doing so. Indeed, in language that only thinly veiled the resolve on institutional self-preservation, Viscount Simon was forthright in stating further that the Board would be reluctant to depart from previous decisions of a constitutional nature

68  Colonial and Post-Colonial Constitutionalism in the Commonwealth in the assumption that it would have been ‘acted upon by both governments and subject’.254 This helps to explain the main justification offered for sidestepping a re-­ examination of the decision by their Lordships in Canada Temperance – its longevity. In response to the contention by the appellants that Russell be overruled for being wrongly decided in view of Viscount Haldane’s comments in Toronto Electric Commissioners v Snider,255 it is not surprising to find that Viscount Simon stated in part justification of the JCPC’s refusal that: Their Lordships have no intention, in deciding the present appeal, of embarking on a fresh disquisition as to relations between ss.91 and 92 of the British North America Act, which have been expounded in so many reported cases; so far as the Canada Temperance Act, 1878, is concerned the question must be considered as settled once and for all.256 Just four years later Justice Taschereau reiterated this view in Wartime Leasehold Reference when Russell was referred to in argument before the Supreme Court of Canada, which had by then become the last court of appeal for Canada. His Lordship stated that: This case which is very frequently cited has no application. Moreover it has not the meaning that has been attributed to it as a result of the dictum of Viscount Haldane in Toronto Electric Commissioners v Snider. In Attorney General for Canada v Canada Temperance Federation Viscount Simon has definitely settled the matter and removed all possible doubts.257 A line of cases have followed in citing the national concern branch of POGG to justify federal parliamentary encroachment on what would ordinarily fall under provincial control. In a unanimous decision on the POGG clause, the Supreme Court258 upheld the expropriation of land for establishing a green belt in the national capital territory as a model of a matter of national concern in Munro v National Capital Commission.259 The National Capital Commission (‘the Commission’), with the approval of the Governor-in-Council, and acting under section 13(1) of the National Capital Act 1958,260 expropriated a farm owned by the appellant in the Province of Ontario. This was challenged by the appellant, and a critical issue identified for determination by the trial court was whether the Parliament of Canada could authorise such expropriation under the BNA Act. It was conceded that the appellant’s lands were taken for the purpose of establishing the Green Belt proposed in the Master Plan (Greber) for the development of the National Capital Region. If the National Commissions Act purported to do so then, it was ultra vires the powers of Parliament. It was argued for the appellant that such expropriation was in its nature, character and purpose a use in relation to a matter falling within the classes of subjects assigned exclusively to the legislatures of the provinces by the British North America Act. The trial judge held that the BNA Act authorised Parliament to expropriate land for such a purpose.

Canada – federalism and the country of ‘peace, order and good government’ 69 The Supreme Court dismissed the appeal against the lower court’s decision. It held that the subject matter of the National Capital Act – the development, conservation and improvement of a national capital region for the government of Canada – was not referred to in either section 91 or 92 of the BNA Act. This was to be done in accordance with section 10(1) of the National Capital Act, which provides that the assignment be ‘in order that the nature and character of the seat of the Government of Canada may be in accordance with its national significance’. Consequently, the sole power rests with Parliament under the preliminary words of POGG to authorise the Commission, for the attainment of the objects and purposes defined by the National Capital Act. Justice Cartwright, delivering the judgment of the Court, held that, notwithstanding the fact that the exercise of the Commission’s powers under the Act would affect the ‘civil [property] rights’ of the residents of parts of the two provinces which made up the national capital region, it was: … difficult to suggest a subject matter of legislation which more clearly goes beyond local or provincial interests and is the concern of Canada as a whole than the development, conservation and improvement of the National Capital Region in accordance with a coherent plan in order that the nature and character of the seat of the Government of Canada may be in a­ ccordance with its national significance.261 Subsequently, the Supreme Court outlined the test of what constitutes a matter of national concern under POGG per Justice Le Dain in R v Crown Zellerbach Canada Ltd (‘Crown Zellerbach’).262 After a survey of previous cases in which the Court had considered the national concern branch of the POGG power, Justice Le Dain set out the features of the branch. Justice Le Dain (with Chief Justice Dickson and Justices McIntyre and Wilson concurring) pointed out that the national concern branch is distinct from the national emergency doctrine of POGG. What distinguishes the latter, the Court remarked, is principally the way it only provides a constitutional basis for what is necessarily legislation of a temporary nature. Second, the national concern doctrine applies to both new matters which did not exist at Confederation as well as those which, although originally matters of a local or private nature in a province, have since, in the absence of national emergency, become matters of national concern. Third, in order to qualify as a matter of national concern, in either sense, it must have a singleness, distinctiveness and indivisibility that clearly distinguish it from matters of provincial concern. Fourth, the matter must be on a scale of impact on provincial jurisdiction that is reconcilable with the fundamental distribution of legislative power under the Constitution. This last point is reflected in the substantial impact on extra-provincial interests in the event of provincial failure (or provincial inability) to control or regulate the intra-provincial aspects of the matter.263 In issue in Crown Zellerbach was the validity of federal legislation ostensibly made under section 91 of the BNA Act to prevent marine pollution – the Ocean Dumping Control Act. The Supreme Court had to determine whether section

70  Colonial and Post-Colonial Constitutionalism in the Commonwealth 4(1) of the Act was constitutional in its application to the dumping of waste in waters, other than fresh waters, within a province. During the conduct of its logging operations, the respondent dumped wood-waste in the waters of Beaver Cove, an area within the province of British Columbia. He was charged with contravening section 4(1) of the Ocean Dumping Control Act. The federal legislation prohibits the dumping of any substance at sea except in accordance with the terms and conditions of a permit, the sea being defined for the purposes of the Act as including the internal waters of Canada other than fresh waters. The respondent had a permit to dump under the Act, but it did not cover this site. The waters of Beaver Cove are navigable and flow into Johnstone Strait, which is connected with the Pacific Ocean. There was no evidence of any dispersal of the wood-waste or of any effect on navigation or marine life. Both the trial judge and the Court of Appeal held that section 4(1) of the Act was ultra vires Parliament. A slim majority of the court (4–3) held that the headings of federal jurisdiction enumerated in section 91 of the BNA Act did not cover the validity of section 4(1) of the Ocean Dumping Control Act. However, the section was valid by virtue of the POGG vested in Parliament by section 91(1) of the BNA Act. This was because the control of marine pollution met the national concern test. It held that ‘Marine pollution, because of its predominantly extra-provincial as well as international character and implications, is clearly a matter of concern to Canada as a whole.’ It is significant to note that Justice Le Dain, in the leading judgment, made the observation that the Ocean Dumping Control Act would appear to have been enacted in fulfilment of Canada’s obligations. This is under the Convention on the Prevention of Marine Pollution by Dumping of Wastes and other Matter (though this was not stated in the Act) to which the country became a party in 1972 in light of several references to it in the Ocean Dumping Control Act. In their powerful dissenting judgments, Justices Beetz, Lamer and La Forest held the view that control of the environment is not a proper subject for incorporation into POGG under the national dimensions doctrine. This is because all physical activities have some environmental impact and it would amount to too wide a power otherwise. In order to justify the invocation of the national dimension branch of POGG in the control of marine pollution or any other aspect of environmental control, it must be linked to an identifiable head of federal power to ensure respect for the scheme of federalism provided by the Constitution. This, as will be discussed in Chapter 3, is similar to the approach of the High Court of Australia in determining the provenance of the POGG of the Commonwealth Parliament. Justice La Forest stated that ‘To allocate the broad subject-matter of the environmental control to the federal sphere under its general power would effectively gut provincial legislative jurisdiction and sacrifice the principles of federalism enshrined in the Constitution.’264 Indeed, marine pollution, the dissenting judges argued, failed to meet the national concern test. It lacked the distinctiveness and singleness required of matters under that branch of the POGG power and it was not new, yet it considerably trenched provincial powers in a wide variety of areas on matters of a local nature.265 In other words, it was inapposite to be considered

Canada – federalism and the country of ‘peace, order and good government’ 71 as a matter for the residual POGG power at all. This dissent is analogous to the majority decision of the Nigerian Supreme Court case, Attorney General of Lagos State v Attorney General of the Federation and 35 others (‘Urban Planning’)266 where the majority rejected the attempt to confer national planning powers on the federal government for the whole of the federation under the rubric of POGG among other federal powers.267 In Ontario Hydro v Ontario (‘Labour Relations Board ’),268 the Supreme Court of Canada upheld POGG as justification for the application of federal labour relations legislation to staff employed and working at provincial nuclear electrical generating stations because of the extra provincial and international character and implications of atomic energy. Ontario Hydro, a provincially owned corporation, produces electric power through electrical generating stations, five of which are nuclear generating stations. These stations fall within the ambit of section 18 of the federal Atomic Energy Control Act, which provides that all works and undertakings ‘constructed for the production, use and application of atomic energy’ are works for the general advantage of Canada. Each of Ontario Hydro’s nuclear reactors is covered by a licence issued pursuant to regulations made under the Act. The respondent applied for certification as exclusive bargaining agent for a unit of employees of Ontario Hydro, including those employed at the nuclear plants pursuant to the Ontario Labour Relations Act. The respondent challenged the application on the ground that the employees who worked at the nuclear generating stations fell within the jurisdiction of the Canada Labour Code. The respondent claimed that the declaration in section 18 of the Act, combined with sections 91(29) and 92(10)(c) of the Constitution Act 1867, brought Ontario Hydro’s nuclear generating stations within exclusive federal jurisdiction with respect to labour relations; thus the inapplicability of the Labour Relations Act of Ontario to them. The Ontario Labour Relations Board found that it had no jurisdiction to deal with the proposed unit since it included employees who worked at the nuclear facilities and were governed by the Canada Labour Code, and thus found for the respondent. The Ontario Divisional Court quashed the Board’s decision. On appeal to the Ontario Court of Appeal, a majority of that court set aside the judgment of the Divisional Court and reinstated the Board’s decision; hence this final appeal to the Supreme Court. In dismissing the appeals, the Supreme Court, in a slim majority of 4–3, per Chief Justice Lamer and Justices La Forest, L’Heureux–Dubé and Gonthier (Justices Sopinka, Cory and Iacobucci dissenting) held that the Canada Labour Code applies to employees of Ontario Hydro who are employed on or in connection with those nuclear facilities that come under section 18 of the Atomic Energy Control Act. This is an outflow of the declaratory power under section 92(10) (c) of the Constitution Act 1867. Section 92(10)(c) authorises Parliament to declare local works (by virtue of section 92(10)) that would otherwise fall within provincial power to be for the general advantage of Canada. Justice La Forest stated in his judgment (with which Justices L’Heureux-Dubé and Gonthier concurred) that Parliament’s declaratory power on the transfer of provincial powers to the federal Parliament over works declared to be for the general advantage of Canada should

72  Colonial and Post-Colonial Constitutionalism in the Commonwealth be construed as being broad. This power, Justice La Forest held, ‘should not be narrowly construed to conform to theoretical principles of federalism’.269 More relevant to this discourse, the majority held that the case could be disposed of entirely on the basis of the power of Parliament to legislate over matters of national concern under POGG in section 91 of the Constitution Act 1867. Chief Justice Lamer, in the leading judgment, adopted a circumspect approach regarding the extent of federal powers on atomic energy. The Chief Justice held that Parliament’s jurisdiction over a declared work including that conferred under the POGG clause in section 91 over nuclear power was not plenary.270 Rather, it must be described in a manner that limits it in accordance with the need to respect the powers of the provincial legislatures.271 Accordingly, Chief Justice Lamer held that the POGG power is ‘subject to balancing federal principles’.272 The principles limit Parliament’s jurisdiction to the national concern aspects of atomic energy, ‘namely, the fact of nuclear production and its safety concerns’.273 Even then, like the other three justices, Chief Justice Lamer was clear that the international dimension made nuclear energy an issue of serious national concern because at the international level there has been consistent recognition that: supervising employment on or in connection with facilities for the production of nuclear energy is an integral part of assuring the safety of nuclear facilities and materials. The question remains whether the jurisprudence of this and other courts supports the strong practical reasons in favour of placing the responsibility for both matters with the federal government.274 If Chief Justice Lamer’s position had a touch of ambivalence due to federalism concerns, the three other judges were unequivocal and emphatic on the wide scope of the POGG power regarding atomic energy. Justice La Forest observed that there was no doubt that the application of atomic energy constituted a matter of national concern. Atomic energy was ‘predominantly extra-provincial and international in character and implications, and possesses sufficiently distinct and separate characteristics to make it subject to Parliament’s residual power’.275 His Lordship pointed to the ‘strategic and security aspects of nuclear power in relation to national defence and the catastrophe and near catastrophe associated with its peaceful use and development at Chernobyl and Three Mile Island’ as indicators of its national character and uniqueness.276 Interestingly, the dissenting judgment of Justice Iacobucci, who also spoke for the other two judges, conceded that Parliament’s POGG powers were applicable to nuclear energy but that the regulation of labour relations was not integral to that power, which should not be construed as plenary. Indeed, the dissent came close on this point to the position of Chief Justice Lamer in the leading judgment. Justice Iacobucci had stated as part of his conclusion that: While there is no dispute that Parliament has jurisdiction over atomic energy under the national concern branch of the p.o.g.g. power, the extent of what

Canada – federalism and the country of ‘peace, order and good government’ 73 is swept within Parliament’s jurisdiction is circumscribed to the national concern aspects of atomic energy … which render them to the general advantage of Canada, namely the fact of nuclear production and its safety concerns.277 It is difficult to agree with this exception sought to be made to the operation of federal power through the declaratory power. But even more germane to this discussion is the point made by Justice La Forest. His Lordship observed that the federal power in this regard will be rendered nugatory not only from the point of view of applicable legislation, but, more crucially, over those areas conceded to federal control by the dissenting judgment.278 One of the most remarkable consequences of the JCPC’s sway over judicial considerations of the POGG power is the awkward legacy it bestowed on Canada in the name of preserving provincial autonomy on the domestic implementation of international conventions in the post-Empire period. It is strange that the incapacitating decision of the JCPC in Labour Conventions continues to hold the pride of place as the position of the law on the application of international conventions in Canada. This is despite acute recognition of the significance of the constraints this imposes on Canada. An example of the problematic situation thus fostered by the jurisprudence of the court is reflected in the current incapacity of the Dominion Parliament to make effective legislation for the management of the country’s vast forest resources, an issue with critical implications for global climate change governance. This is because the provinces control over 84 per cent of the country’s forest reserves. The situation creates a serious complication on an important (global and) national issue set against the reality that Canada, along with the United States, accounts for about 15 per cent of the world’s forest land.279 As an illustrative case, the situation is particularly serious since ‘Ultimately, the lack of national or international input into Canadian forest practices also has implications for preserving the full slate of climate change solutions [globally]’.280 The situation is something of an irony because while Canada has been known for its aggressiveness ‘in signing on to various international treaties related to forest management, including climate change’,281 the federal authorities have, in practice, been severely constrained in actual participation in implementing international agreements by the jurisdictional claims of her provinces.282 The restrictive judicial interpretation of the constitutional reach of the POGG power in this regard is but one of real and potential fall-outs of judicial preferences with deep socio-political resonance beyond national borders.283 Consider the explicit reference to the significance of international law as justification for dispensing with the concerns around federalism and provincial autonomy (or, at least, limiting its potency) with reference to nuclear energy. The majority of the Supreme Court panel in Labour Relations Board284 rightly locates the national concern branch of the POGG as an appropriate mechanism for thawing the constitutional ice of the decision in Labour Conventions. Reference, to the same effect, had earlier been made in the decision in Crown Zellerbach where the only basis for upholding anti-marine pollution legislation was the national concern branch of POGG. Hence, the continued application rather than overruling of

74  Colonial and Post-Colonial Constitutionalism in the Commonwealth Labour Conventions can be largely explained, it seems (even if unsatisfactorily), by the sometimes jurisprudentially suffocating principle of stare decisis – easily the most prominent feature of the common law system of the Commonwealth. That continues to leave the country in the position of a ‘sleeping bear’, to paraphrase one commentator,285 on the untoward impact of the decision in Labour Conventions and its impact on Canada’s ability to fulfil its international obligations with respect to the Kyoto Protocol through the enactment of the Kyoto Protocol Implementation Act 2007.286

Conclusion In the Canadian jurisdiction, the cardinal feature of the POGG clause is its residual nature.287 The clause confers residual powers on the federal government to legislate for matters that are not expressly provided for in the Constitution Act 1867. Typically, in the nature of mechanisms for consociation and mediation of political power among the elite, the contours and dimensions of POGG remain contested and sometimes unclear. What is clear, however, is the restrictive purview bequeathed to Canadian constitutionalism by the JCPC in its interpretation of POGG. As many commentators have observed, this is a product of the desire to maintain the fraught balance between the socio-political preferences of the historical Upper and Lower Canada. While the JCPC has been heavily criticised for its perceived buffering of provincialism, Hogg considers that the wording of the Constitution Act 1867, perhaps more than any other factor, is the real culprit. A form of constitutional Realpolitik was perhaps at work here – an attempt to please the two dominant communities in Canada (the English and the French). Hogg has argued that this important founding document was deliberately crafted to generate the resultant debate on the intention of the framers.288 This objective led to the deliberate crafting of constitutional legislation that attempted to fulfil ‘two conflicting desiderata’ and the inevitable equivocation was to be resolved either as a political or, as it turned out, judicial matter.289 From early on, the tension inherent in such a crafting was not lost on the JCPC, which observed in Citizens v Parsons that the scheme of the BNA Act, as expressed in the first branch of section 91, is to give to the Dominion Parliament authority to make laws for the good government of Canada ‘in all matters not coming within the classes of subjects assigned exclusively to the Provincial legislature’.290 If the section had closed on that note, there would have been no conflict of legislative competence between the centre and the provinces. However, section 91 did not stop at the initial words, and the subjects enumerated in section 92 were not altogether distinct and different from those in section 91. This failure led to inevitable jurisdictional conflicts with the attendant need to seek judicial interpretation to delineate the limits of provincial and Dominion powers.291 The national concern branch of the POGG power has perhaps had the widest ramifications for the distribution of power in Canadian federalism particularly in the post-JCPC period. The ascendance of the national concern branch and

Canada – federalism and the country of ‘peace, order and good government’ 75 its growing dominance in relation to other branches of the POGG power has led to the claim by Gibson that it is the only surviving and legitimate application of the POGG power in the Constitution Act 1867.292 Gibson’s view is to be doubted considering the Supreme Court decision in the Anti-Inflation Reference. The Supreme Court rejected the national concern branch as an appropriate basis for the Anti-Inflation Act, which no doubt had ‘national dimensions’ but which subject head was unanimously upheld by virtually all the Justices who heard the case293 (despite the dissent on its validity) under the emergency branch. However, while many would contend Gibson’s view of the influence of the national dimensions branch of the POGG power, it does appear that few would argue with the assessment that the national concern branch has come to overshadow the other branches substantially. As Peter Russell observed regarding the judicial role in Canadian federalism, the Supreme Court has moved away from the overly decentralising inclination of the JCPC and achieved an ‘uncanny balance’ in moderating jurisdictional claims between the federal and provincial governments on matters usually held passionately by politicians.294 Judges involved in adjudicating such jurisdictional disputes in the nature of the context in which the POGG power has been frequently invoked, especially in federations like Canada, are bound to come under some pressure leading to attempts on their part as umpires at achieving (at least a sense of) some balance. As a matter of social experience, this is not a unique response. As Russell points out with respect to the Supreme Court of Canada, it is plainly unrealistic to set the bar at a level which fails to take cognisance of the fact that judges are human who, like other umpires, as for instance in the sports arena, feel the pressure to ‘even things up’ in closely contested claims.295 Russell, like Riel, ranks very highly in the influential loci classici on the meaning of POGG, but there is reason to doubt its correctness. Indeed, from the onset, this choice reference by courts across the Commonwealth courts (including the highly influential House of Lords) had set the stage for a dubious interpretation of the POGG power. Yet the uncritical attraction Russell holds for many unwary, but highly learned judges and scholars all over the Commonwealth has continued without any signs of waning. This is despite the incisive questioning of its reasoning in Canada Temperance. For sure, the excuse that it is long-standing, which found favour with the judges in the latter case not to disturb Russell, has not helped matters. As Henry Rempel noted, it is ‘far from being the model of simple, elegant and coherent legal rationation’296 that many jurists all over the Commonwealth (and presumably beyond) have accorded it. Notwithstanding this, as the discussion of Russell itself shows, the POGG clause appears to have been predestined to be controversial.

Notes 1 Canada does not have a single constitutional document but, as discussed below, the British North America Act 1867 (‘Constitutional Act 1867’) is the closest approximation to its founding constitutional document. See Peter W Hogg, Constitutional Law of Canada (5th edn, Carswell Thomson Reuters, Toronto, 2011), 1–11.

76  Colonial and Post-Colonial Constitutionalism in the Commonwealth 2 See, e.g. Adam Chapnick, ‘Peace, Order and Good Government – The “Conservative” Tradition in Canadian Foreign Policy’ (2005) 60(3) International Journal 635; and Adam Dodek, ‘Sex on the Internet and Fitness for Judicial Office – Correspondent’s Report from Canada’ (2012) 14 Legal Ethics 215. 3 Kenneth Munro, ‘Canada as Reflected in Her Participation in the Coronation of Her Monarchs in the Twentieth Century’ (2001) 14(1) Journal of Historical Sociology 21, 41. See also Ian E Wilson, ‘“Peace, Order and Good Government”: Archives in Society’ (2012) 12(2) Archival Science 235, 238. 4 Ian Holloway, ‘Book Reviews’ (1996) 2(2) Australian Journal of Legal History 223, 224; see also Alan T Davies, ‘Introduction’, in Alan T Davies (ed.), Antisemitism in Canada: History and Interpretation (Wilfrid Laurier University Press, Ontario, 1999) and ‘Terrorist Threats to the United States – Hearing Before the Subcommittee on Immigration and Claims; January 26, 2000’; available at http://avalon.law.yale. edu/21st_century/t_0028.asp (accessed 31 July 2013). 5 Department of Foreign Affairs and International Trade, ‘Statement Notes for an Address by the Honourable Andre Quellet Minister for Foreign Affairs on the Occasion of the Return of President Jean-Bertrand Aristide to Haiti’ (1994) 3; available at http://dfait–aeci.canadiana.ca/view/ooe.19941015ESt/1?r=0&s=1 (accessed 27 July 2012). 6 Michael Ignatieff, ‘Peace, Order and Good Government: A Foreign Policy Agenda for Canada’ (2004) OD Skelton Lecture Department of Foreign Affairs and International Trade, Ottawa, 12 March 2004; available at: http://www.hks.harvard.edu/cchrp/ pdf/Skelton.pdf (accessed 30 March 2012), 1; see also Rand Dyck, Canadian Politics (5th edn, Nelson Scarborough, Toronto, 2012), 139. For an argument that (a literalist) adherence to POGG has led to a ‘cultural disinclination to unmercifulness’, see Carolyn Strange, Qualities of Mercy: Justice, Punishment, and Discretion (University of British Columbia Press, Vancouver, 1996), 147–148. This is typical of non-legal discourses of POGG. Ignatieff’s position is not surprisingly literalist too. Thus, he argues in part that ‘The focus of our foreign policy should be to consolidate “peace, order and good government” as the sine qua non for stable states, enduring democracy and equitable development’: Ignatieff, ‘Peace, Order and Good Government’, 12. 7 Ignatieff (n 6), 1. 8 Ignatieff (n 6), 9; and Michael Ignatieff, ‘Canada in the Age of Terror: Multilateralism Meets a Moment of Truth’ (2003) Policy Options 14, 18; available at http://irpp.org/ po/archive/feb03/ignatieff.pdf (accessed 9 July 2012). 9 ‘Terrorist Threats to the United States – Hearing before the Subcommittee on Immigration and Claims; January 26, 2000’; available at http://avalon.law.yale. edu/21st_century/t_0028.asp (accessed 27 July 2012), 135. 10 Jean-Pierre Morin, ‘Peace, Order and Good Government: Indian Treaties and Canadian Nation Building’ (Paper presented to the ‘First Nations, First Thoughts’ Conference, 5–6 May 2005, Centre for Canadian Studies, University of Edinburgh, Scotland); available at http://www.cst.ed.ac.uk/2005conference/papers/Morin_ paper.pdf (accessed 11 December 2012), 1. 11 Morin (n 10). 12 Morin (n 10). 13 Morin (n 10). 14 Morin (n 10), 20. 15 Morin (n 10), 20. 16 John Ralston Saul, A Fair Country: Telling Truths about Canada (Penguin Group, Toronto, 2008), xi. 17 Ralston (n 16), xi. 18 Canada in the Making ‘The Métis’; available at http://www.canadiana.ca/citm/ specifique/metis_e.html (accessed 1 August 2012).

Canada – federalism and the country of ‘peace, order and good government’ 77

19 20 21 22 23 24

Saul (n 16), 1. Saul (n 16), 112 (emphasis in original). Saul (n 16), 112. Saul (n 16), 112–113. Saul (n 16), 112–113. Peter H Russell ‘The Supreme Court and Federal-Provincial Relations: The Political Use of Legal Resources’ (1985) 11(2) Canadian Public Policy 161, 163 25 John Kincaid, ‘The Bargaining Game – Canada as a New Model of Federal Governance?’, in Gabrielle Appleby, Nicholas Aroney and Thomas John, The Future of Australian Federalism: Comparative and Interdisciplinary (Cambridge University Press, New York, 2012), 180, 185. 26 Morin (n 10). 27 Canadian authors have been prolific in their extensive considerations of POGG: see, e.g. WPM Kennedy, ‘The Interpretation of the British North America Act’ (1943) 8 Cambridge Law Journal 146; Vincent C MacDonald, ‘Judicial Interpretation of the Canadian Constitution’ (1936) 1 University of Toronto Law Journal 260; Raphael Tuck, ‘Canada and the Judicial Committee of the Privy Council’ (1941) 4 University of Toronto Law Journal 33; E René Richard, ‘Peace, Order and Good Government’ (1940) 18 Canadian Bar Review 243; William F O’Connor, Report to the Senate of Canada on the B.N.A. Act (Ottawa, 1939), Annex1, 52–78; W Ivor Jennings, ‘Constitutional Interpretation – The Experience of Canada’ (1937) 51 Harvard Law Review 1; Patrick MacDonald, ‘Peace, Order and Good Government: The Laskin Court in the Anti-Inflation Act Reference’ (1977) 23 McGill University Law Journal 431; Dale Gibson, ‘Measuring “National Dimensions”’ (1976–1977) 7 Manitoba Law Journal 15; Albert S Abel, ‘What Peace, Order and Good Government’ (1968) 7 Western Ontario Law Review 1; K Lysyk, ‘Constitutional Reform and the Introductory Clause of Section 91: Residual and Emergency Law-Making Authority’ (1979) 57 Canadian Bar Review 531; there are a host of others, some of which are referred to in the discussion in this chapter. 28 Alan G Tarr, ‘Constitutional Origins, Structure and Change’, in John Kincaid and G Allan Tarr, Constitutional Origins, Structure and Change in Federal Countries (McGill University Press, Montreal and Kingston, 2005), 9. 29 ‘Commission to Cornwallis 6 May 1749’. 30 See the text and accompanying footnotes on the views of John Ralston Saul below. 31 See the discussion in Ch 6. 32 (UK) RSC 1985, App II, No 1.This followed the Definitive Treaty of Peace concluded at Paris on 10 February 1673 among the Kings of Britain, Spain and Portugal, in which these American colonies were ceded to Britain by France. For the Treaty, see http://avalon.law.yale.edu/18th_century/paris763.asp (accessed 24 March 2012). 33 WPM Kennedy, Documents of the Canadian Constitution 1759–1915 (Oxford University Press, Toronto, 1918) 3. 34 (1774); a full report is provided in Kennedy (n 33), 83–85. 35 14 Geo. III c.83. 36 As the Governor-General was then known. 37 ‘Commission Passed under the Great Seal of Great Britain, Appointing James Murray to be Captain General and Governor in Chief of the Province of Quebec’; available at http://www.heritage.nf.ca/law/lab2/labvol2_756.html (accessed 2 August 2012). 38 ‘Instructions to Governor Murray, 7 December 1763’, para 1, in Kennedy (n 33), 27. 39 ‘Instructions to Governor Murray’, in Kennedy (n 33), 27. 40 ‘Instructions to Governor Murray’, in Kennedy (n 33), 28 (emphasis added). 41 See the discussion in Ch 6. 42 Article XII was repealed by the Constitution Act 1791, 31 Geo. III, c.31 (UK). 43 See Art II of the Constitution Act 1791. 44 Introduced to circumvent the growing influence of obstructionist French politician,

78  Colonial and Post-Colonial Constitutionalism in the Commonwealth Louis-Joseph Papineau, Speaker of Lower Canada’s House of Assembly, who successfully campaigned in 1823 against adoption of the Bill. See The Canadian Encyclopedia, ‘Papineau, Louis-Joseph’; available at http://www.thecanadianencyclopedia.com/ articles/louisjoseph–papineau (accessed 2 August 2012). 45 For minority support and the strong and concerted opposition of the majority to the proposed union from Lower Canada (now Québec), see Kennedy (n 33), 330–334. 46 ‘An Act to Re-Unite the Provinces of Upper and Lower Canada, and for the Government of Canada’ 3 & 4 Vict., c.35 (UK). 47 ‘An Act to Make Temporary Provision for the Government of Lower Canada’ (1 & 2 Vict., c.9), 29 March 1878. 48 Lower Canada Act (n 47), arts I and II. 49 Lower Canada Act (n 47), Art III. 50 Issued 2 December 1858. 51 Ontario and Québec were a re-merged Province of Canada from which the confederation as it was known took its name. New colonies were admitted into the new union after 1867: British Columbia, Prince Edward Island, the North West Territories (and the Provinces later carved out of it: Yukon and Manitoba, Alberta, Saskatchewan and, lately, Nunavut), Ottawa, Newfoundland and Labrador. See Rainer Knoppf and Anthony Sayers, ‘Canada’, in Kincaid and Tarr (n 28), 104, 106–108; and Jorg Broschek, ‘Historical Institutionalism and the Varieties of Federalism in Germany and Canada’ (2012) 42(4) Publius 662, 672–674. 52 30 & 31 Vict., c.3. The preamble makes clear that ‘interests of the British Empire’ was the fundamental consideration in establishing the Canadian federation (‘One Dominion’) from the Provinces of Canada, Nova Scotia and New Brunswick. Section 9 of the Constitution Act affirms the existing and continuing executive authority of the British Crown over Canada. 53 See Canadian Constitution Act 1982, s 53(2) and the Schedule thereto. The two are used interchangeably in this book. 54 34 Vict., c.28. 55 British North America Act 1871, s 2 (emphasis added). 56 David E Smith, Federalism and the Constitution of Canada (University of Toronto Press, Toronto, 2010), 119. 57 Saul (n 16), 114 (emphasis in original). 58 Saul (n 16), 114 (emphasis in original). 59 See the discussion in Ch 6. 60 See Re: Resolution to Amend the Constitution [1981] 1 SCR 753 at 872. 61 James B Kelly and Michael Murphy, ‘Shaping the Constitutional Dialogue on Federalism: Canada’s Supreme Court as Meta-Political Actor’ (2007) 35(2) Publius 217. 62 Re: Resolution to Amend the Constitution (n 60), 873. 63 Knoppf and Sayers (n 51), 105. 64 JE Hodgetts, ‘Canadian Administration Faces the Fifth Decade’ (1949) 11(4) Journal of Politics 715. 65 David E Smith, ‘Empire, Crown and Canadian Federalism’ (1991) 24(3) Canadian Journal of Political Science 451, 460. 66 Peter W Hogg, ‘Canada: From Privy Council to Supreme Court’, in Jeffrey Goldsworthy (ed.), Interpreting Constitutions (Oxford University Press, Oxford, 2007), 53, 93–95. 67 For a discussion of the ‘Quebec Question’ in Canadian politics, see Cameron R David and Jacqueline D Krikorian, ‘Recognizing Quebec in the Constitution of Canada: Using the Bilateral Constitutional Amendment Process’ (2008) 58(4) University of Toronto Law Journal 389. For a concise statement of the key issues on

Canada – federalism and the country of ‘peace, order and good government’ 79 Quebec’s grievances and proposals, see Joseph Eliot Magnet, Constitutional Law of Canada – Cases Notes and Materials (8th edn, Vol 1, Juriliber Limited, Edmonton, 2001), 108–122. 68 See Reference re Secession of Quebec [1998] 2 SCR 217. 69 Robert Schertzer, ‘Recognition or Imposition? Federalism, National Minorities, and the Supreme Court of Canada’ (2008) 14(1) Nations and Nationalism 105, 106. 70 Schertzer (n 69), 106. 71 For a discussion on why some parts of the country preferred to have the Privy Council as final arbiter, see Alan C Cairns, ‘The Judicial Committee and Its Critics’ (1971) 4(3) Canadian Journal of Political Science 301, 316–320. 72 Canada in the Making, ‘The Judicial Committee of the Privy Council’; available at http://www.canadiana.ca/citm/specifique/jcpc_e.html (accessed 31 July 2013). 73 It decided about 120 cases on that area alone; see Gerald A Beaudoin, ‘Constitutional Law’, in The Canadian Encyclopedia; available at http://www.thecanadianencyclopedia. com/articles/constitutional–law (accessed 12 April 2012). 74 Hogg (n 66), 62. 75 Canada in the Making (n 72). 76 Canada in the Making (n 72). 77 Gil Remillard, ‘Supreme Court of Canada’, in The Canadian Encyclopedia; available at http://www.thecanadianencyclopedia.com/articles/supreme–court–of–canada (accessed 25 July 2012). 78 Peter W Hogg and Wade K Wright, ‘Canadian Federalism, the Privy Council and the Supreme Court: Reflections on the Debate about Canadian Federalism’ (2005) 38 University of British Columbia Law Review 329, 349; but see Cairns (n 71), 345: ‘Finally, the doctrine of stare decisis bound the Supreme Court to the decisions of its superior, the Privy Council’. 79 Remillard (n 77). 80 See Cairns (n 71), 328–333 for arguments in support of a national court as the final appellate court in Canada. 81 Hogg (n 66), 58–59. 82 Barry L Strayer, Judicial Review of Legislation in Canada (University of Toronto Press, Toronto, 1968), 3. 83 Strayer (n 82), 4; and John T Saywell, The Lawmakers: Judicial Power and the Making of Canadian Federalism (University of Toronto Press, Toronto, 2002), 8–9, 13–14. 84 Saywell (n 83), 4. 85 Strayer (n 82), 5. 86 Strayer (n 82), 5. 87 Italics for emphasis. 88 Strayer (n 82), 38. 89 See, e.g. Jennifer Smith, ‘The Origins of Judicial Review in Canada’ (1983) 16(1) Canadian Journal of Political Science 115. 90 Reference Re Amendment of the Constitution of Canada (Nos 1, 2 and 3) [1981] 1 SCR 753. 91 Robert Sedler, ‘Constitutional Protection of Individual Rights in Canada – The Impact of the Canadian Charter of Rights and Freedoms’ (1983–1984) 59 Notre Dame Law Review 1191, 1197–1198; Jean Leclair, ‘Judicial Review in Canadian Constitutional Law’ (2004) 36 George Washington International Law Review 543, 543–546. 92 Sedler (n 91), 1198–1220. 93 Sedler (n 91), 1199. 94 Sedler (n 91), 1196. 95 See Lorraine E Weinrib, ‘Canada’s Charter of Rights: Paradigm Lost’ (2001–2002) 6 Review of Constitutional Studies 119; Tsvi Kahana, ‘Canada’, in Dawn Oliver and Carlo Fusaro, How Constitutions Change: A Comparative Study (Hart Publishing, Oxford and Portland, Oregon, 2011), 9, 20.

80  Colonial and Post-Colonial Constitutionalism in the Commonwealth 96 Strayer (n 82), 5. 97 Strayer (n 82), 5. 98 The other notable sections which have played a significant part in the process of judicial review in the country’s experience are s 132, which confers powers for legislation on Empire treaties (made by the British Empire when Canada was still a colony) and s 95, which makes provisions for paramountcy of Dominion legislation in cases of jurisdictional conflict between the provinces and the Dominion. See William Eaton, ‘Judicial Review and the Federal Distribution of Power’ (1958) 7(1) American Journal of International Law 47, 50–52. 99 For a discussion of Laskin’s contributions to Canadian constitutionalism, see Katherine Swinton, ‘Bora Laskin and Federalism’ (1985) 35(4) University of Toronto Law Journal 353. 100 Bora Laskin, ‘“Peace Order and Good Government” Re-Examined’ (1947) 25 Canadian Bar Review 1054. 101 Cairns (n 71), 301–345. 102 Only a measure because Cairns did not purport to embark on a black-letter law analysis of the work of the JCPC in the very influential essay, nor was he in reality cutout for it by his training as a political scientist even in the North American scholarly tradition where scholars of political science commonly have a robust engagement (at least far much more than their European counterparts) with the work of courts. 103 Frederick Vaughan, ‘Critics of the Judicial Committee of the Privy Council: The New Orthodoxy and an Alternative Explanation’ (1986) 19(3) Canadian Journal of Political Science 495, 503. 104 Vaughan (n 103), 503–506. 105 Cairns (n 71), 301–345. 106 Cairns (n 71), 333. 107 Cairns (n 71), 301. 108 Cairns (n 71), 301. 109 Cairns (n 71), 317, 324–325, 328, 334, 340. 110 Cairns (n 71), 333; and David E Smith, Federalism and the Constitution of Canada (University of Toronto Press, Toronto, 2010), 113–115. 111 Cairns (n 71), 301. 112 Cairns (n 71), 301. 113 Hogg and Wright (n 78), 338–339. 114 See Ch 6. 115 Gregory Taylor, Characterisation in Federations – Six Countries Compared (Springer Berlin, Heidelberg, 2006), 36–40. But see the radically different view of Lysyk (n 27) that the residual power is located in s 91 of the BNA Act. 116 Hogg (n 66), 61. 117 [1984] 1 SCR 86. 118 Continental Shelf Reference, 128–129; to similar effect, see Reference Re Offshore Mineral Rights [1967] SCR 792. 119 [2010] SCC 38 and [2010] 2 SCR 453. See also Johannesson v Rural Municipality of West St. Paul (Johannesson) [1952] 1 SCR 292. In Johannesson, the POGG power was invoked by the Supreme Court to strike down provincial legislation which empowered a municipality to pass bye-laws for licensing, and within defined areas, preventing the  erection of aerodromes or places where aeroplanes are kept for hire or gain. In the unanimous decision delivered by Chief Justice Rinfret (with whom Justices Kerwin, Taschereau, Kellock, Estey, Locke and Cartwright concurred) it was held that the subject of aeronautics is within the exclusive jurisdiction of Parliament under the POGG power as it is one that has attained such dimensions as to affect the body politic of Canada. 120 Lacombe (n 119), [26].

Canada – federalism and the country of ‘peace, order and good government’ 81 121 Lacombe (n 119), [26]. 122 Hogg and Wright (n 78), 335. 123 Hogg and Wright (n 78), 335. 124 Abel (n 27). 125 Hogg and Wright (n 78), 336. 126 Hogg (n 66), 61–62: ‘Section 92 (16), even if it can in theory be regarded as one of two residuary powers, has proved to be unimportant in practice, because its work was done for it by another provincial head of power, Section 92 (13). Section 92 (13), “property and civil rights in the province” received an expansive interpretation in the hands of the Privy Council.’ 127 [1933] AC 156. 128 Croft v Dunphy (n 127), 163. 129 Richard (n 27), 248–249. 130 Hogg (n 1), 17–5. 131 [1981] 1 SCR 941. 132 Labatt (n 131), 944–945. In the case, the Supreme Court rejected the claim that legislating on the labelling of beer could be upheld under any of the branches of POGG: Justice Estey (with whom Justices Martland, Dickson and Beetz concurred) held that: ‘The brewing and labelling of beer and light beer has not been said to have given rise either to national emergency or new problem not existing at the time of Confederation nor to matter of national concern transcending the local authorities power to meet and solve it by legislation’ (at 945). 133 [1923] AC 695 (PC). 134 [1932] AC 304. However, it is to be noted that this characterisation of the Aeronautics Reference (n 135) deviates from the conventional classification of it as arising under the national dimension branch. See, e.g. Johannesson (n 119); Canada Temperance Federation (‘Canada Temperance’) 1946] AC 193 at 205–206, per Viscount Simon; and R v Crown Zellerbach Canada Ltd [1988] 1 SCR 401. 135 [1932] AC 54. 136 [1946] AC 193. 137 (1882) 7 AC 829 (PC). 138 (1879) Pugs & Bur Sup Ct New Br Rep 139. 139 Russell (n 137), 10. 140 Russell (n 137), 14. 141 [1946] AC 193; see the discussion below. 142 [1925] AC 396 at 412 (PC). 143 Snider (n 142), 412. 144 W Ivor Jennings, ‘Constitutional Interpretation: The Experience of Canada’ (1937) 51(1) Harvard Law Review 1, 26. 145 Canada Temperance (n 136), 206. 146 See Gibson (n 27), who argues that the case indeed provides some authority for the national dimension and that ‘much of the confusion’ around judicial interpretation of this branch is attributable to ‘the probably mistaken decision of Sir Montague Smith on behalf of the JCPC’ in the case (at p 18). 147 Russell (n 137), 842. 148 Russell (n 137), 842. 149 Gibson (n 27), 19 (emphasis in original). 150 Gibson (n 27), 19 (emphasis in original). 151 This would seem to be the only plausible construction of the reference to the clause despite the otherwise well-founded views of Gibson in the quote preceding this text since the POGG power is an express constitutional one rather than a common law principle, otherwise an absurdity would ensue since there would be no basis at all for the invocation of the POGG power.

82  Colonial and Post-Colonial Constitutionalism in the Commonwealth 152 See, e.g. SI Bushnell, ‘The Control of Natural Resources through the Trade and Commerce Power and Proprietary Rights’ (1980) 6(2) Canadian Public Policy 313, 315–318, arguing that the power had in fact been severely curtailed in its application. 153 Gibson (n 27), 20. 154 [1976] 2 SCR 373. 155 Anti-Inflation Act Reference (n 154), 454. 156 [1979] 1 SCR 984. 157 Hauser (n 155), 1060. 158 See the judgment of the court delivered by Justice Pigeon in Hauser at 997. 159 See the Supreme Court of Canada decision in Canada Temperance (n 136). 160 Laskin (n 100), 1054, 1086–1087. 161 See the discussion in Ch 6. 162 Sir Barnes Peacock, Sir Robert Collier and Sir Richard Couch. 163 (1883) LR 9 AC 117 (PC). 164 (1887) LR 10 AC 675 (PC). 165 Riel (n 164), 675–678. 166 Riel (n 164), 678. 167 Riel (n 164), 678. 168 Radio Reference (n 134). 169 Hogg (n 1), 16–2 to 16–3. 170 Radio Reference (n 134), 312. 171 (1881) 7 AC 96 (PC). 172 Radio Reference (n 134), 305. 173 Radio Reference (n 134), 312. 174 John S Ewart, ‘The Radio Case’ (1932) 10(5) Canadian Bar Review 298, 301. 175 Ewart (n 174), 301. 176 Ewart (n 174), 302. 177 [1937] AC 326 (PC). 178 Radio Reference (n 134), 350. 179 Radio Reference (n 134), 351. 180 Labour Convention (n 177), 350. 181 Frank R Scott, ‘Labour Conventions Case: Lord Wright’s Undisclosed Dissent?’ (1956) 34(1) Canadian Bar Review 114, 115. 182 Eugene Forsey, ‘Constitutional Aspects of the Canadian Economy’ (1976) 32(2) Proceedings of the Academy of Political Science 53 (emphasis in original). 183 Eaton (n 98), at 62. 184 Knoppf and Sayers (n 51), 125. 185 Hogg (n 66), 64. 186 [1976] 2 SCR 373. 187 Anti-Inflation Act Reference (n 154), 436–437, discussed below. 188 Vaughan (n 103), 515–516; and Cairns (n 71), 321. 189 Hogg (n 66), 64. 190 Fort Frances (n 133). 191 Fort Frances (n 133), 703. 192 Fort Frances (n 133), 703. 193 Fort Frances (n 133), 703. 194 Fort Frances (n 133), 703. 195 Fort Frances (n 133), 704. 196 Fort Frances (n 133), 704. 197 Fort Frances (n 133), 704. 198 Fort Frances (n 133), 704. 199 Fort Frances (n 133), 704–706. 200 [1947] AC 87.

Canada – federalism and the country of ‘peace, order and good government’ 83 201 202 203 204 205 206 207 208

Emphasis added. Japanese-Canadians (n 200), 101. [1950] SCR 124. RSC 1927 c.206. Wartime Leasehold Reference (n 203), 125. Wartime Leasehold Reference (n 203), 144. Wartime Leasehold Reference (n 203), 140. Wartime Leasehold Reference (n 203), 130–131, 135, 146, 155, 157, per Chief Justice Rinfret and Justices Kerwin and Taschereau, Kellock and Estey respectively. 209 Anti-Inflation Act Reference (n 154). 210 1974-75-76 (Can.), c.75. 211 Anti-Inflation Act Reference (n 154), 442–423. 212 Anti-Inflation Act Reference (n 154), 374–375. 213 Anti-Inflation Act Reference (n 154), 375. 214 Anti-Inflation Act Reference (n 154), 436. Justice Beetz also conceded the principle at p 459. 215 Anti-Inflation Act Reference (n 154), 375–376, which was for himself and Justices Judson, Spence and Dickson. 216 Anti-Inflation Act Reference (n 154), 437–439. 217 Anti-Inflation Act Reference (n 154), 440–442. 218 Anti-Inflation Act Reference (n 154), 458. 219 Anti-Inflation Act Reference (n 154), 458. 220 Anti-Inflation Act Reference (n 154), 460–462. 221 For a discussion on the centralisation aspirations of the founding fathers and how this has been subsequently thwarted by the JCPC especially, see Eaton (n 98), 47; Eugene Forsey, ‘Macdonald’s Constitution’ (1976) 3 Dalhousie Law Journal 529; and Forsey (n 182), who argues that POGG was inserted in the BNA Act 1867 to carry forward the intention of founding fathers like John A MacDonald to ensure that the Dominion, rather than the states, had more powers to avoid the experience of the American Civil War which threatened that country’s federalism; but compare Hogg and Wright (n 78), 330–339 and 342–343, arguing that there is a measure of historical indeterminacy on the intentions of the founding fathers depending on who the interlocutor considers as the ‘founding fathers’ and this is reflected to some extent in the text of the BNA Act. 222 Forsey (n 182), 56; see also Eaton (n 98), 52; and Hogg and Wright (n 78), 341–342. 223 Forsey (n 182), 56; see also Eaton (n 98), 52. 224 Eaton (n 98), 56–58. 225 Hogg and Wright (n 78), 340. 226 Significantly, Prime Minister Bennet, in part of his ‘new deal’ speeches in Parliament, had affirmed his belief that it was premised in part on the Dominion Parliament’s power to legislate for the ‘peace, order and good government’ of Canada. See, e.g. his speech on the plan to introduce unemployment insurance with mandatory contributions by employers and employees: The Right Honourable Richard Bedford Bennet, ‘Speech before the House of Commons, January 29, 1935’; available at http://www. collectionscanada.gc.ca/primeministers/h4–4050–e.html (accessed 27 July 2012). The legislation that emanated from it was, along with similar legislation on the new deal, declared ultra vires by the JCPC. The cases include Labour Conventions (n 177); Attorney-General for Canada v Attorney-General for Ontario [1937] AC 355 (striking down unemployment insurance legislation); Attorney-General for British Columbia v AttorneyGeneral for Canada [1937] AC 377 (‘Natural Products Marketing’); Attorney-General for British Columbia v Attorney-General for Canada [1937] AC 391 (‘Farmers Credit Arrangement’); and Attorney-General for Ontario v Attorney-General for Canada [1937] AC 405 (‘Canada Standard Trademark’).

84  Colonial and Post-Colonial Constitutionalism in the Commonwealth 227 See, e.g. Laskin (n 100), 1078–1085; and Eaton (n 98), 60–64. The cases include Labour Conventions (n 177), Attorney-General for Canada v Attorney-General for Ontario [1937] AC 355, and Attorney-General for British Columbia v Attorney-General for Canada [1937] AC 377. 228 Laskin (n 100), 1080. 229 Eaton (n 98), 63–64. 230 [1896] AC 348. 231 Local Prohibition (n 230), 361 (emphasis added). 232 Local Prohibition (n 230), 361 (emphasis added). 233 See, e.g. Laskin (n 100); Kennedy (n 33), 156–160; Gibson (n 27), 22; Tuck (n 27), 41–43; Vincent C MacDonald, ‘The Constitution in a Changing World’ (1948) 26 Canadian Bar Review 29, 41; Vincent C MacDonald, ‘The Privy Council and the Canadian Constitution’ (1951) 29 Canadian Bar Review 1035; HA Smith, ‘The Residue of Power in Canada’ (1926) 4 Canadian Bar Review 434; Donald G Creighton, Dominion of the North (Houghton Mifflin Company, Boston, 1944), 380–1; Cairns (n 71), 302–305; Frank Scott, ‘The Development of Canadian Federalism’, in Essays on the Constitution (University of Toronto Press, Toronto, 1977), 46–47. 234 Canadian Statutes, 13 Geo. VI, c.37, ‘Supreme Court Act Amendment 1949’. 235 Eaton (n 98), 49–50. 236 Lord Haldane, ‘The Work for the Empire of the Judicial Committee of the Privy Council’ (1923) 1 Cambridge Law Journal 143, 150. For a recent survey and critical discussion of his lasting imprint on Canadian constitutionalism, see Frederick Vaughan, Viscount Haldane: ‘The Wicked Step-Father of Canadian Constitution’ (Osgoode Society for Canadian Legal History/University of Toronto Press, Toronto, 2010). 237 Lord Haldane (n 236). 238 Vaughan (n 236), xvi. 239 Brooke Claxton, ‘Social Reform and the Constitution’ (1935) 1(3) Canadian Journal of Economics and Political Science 409, 426. 240 Claxton (n 239). 241 [1929] AC 111. 242 A-G Canada v A-G Columbia (n 241), 118 (emphasis added). 243 Aeronautics Reference (n 135), 70–71; Lord Sankey also upheld the legislation on other federal heads of jurisdiction like the trade and commerce and postal service and militia. 244 Radio Reference (n 134), 312. 245 Hogg (n 1), 17–6 to 17–7. 246 Canada Temperance (n 136). 247 This was in the period from 1911 to the Second World War. See Hogg (n 1), 17–9. The JCPC at the time had largely taken to the view that the clause only conferred emergency powers on the Canadian Parliament. 248 Canada Temperance (n 136), 205–206. 249 Hogg (n 1), 17–10 to 17–11. 250 Anti-Inflation Reference (n 154), 394, per Chief Justice Laskin. 251 Canada Temperance (n 136), 205–206. 252 Vaughan (n 236), 181. 253 Canada Temperance (n 136), 206. 254 Canada Temperance (n 136), 206. 255 [1925] AC 396 at 412. 256 Canada Temperance (n 136), 205–206. 257 Wartime Leasehold Reference (n 203), 142. 258 This observation is limited to the Supreme Court as it would perhaps never be discovered whether there was such unanimity or otherwise regarding the POGG power generally in the JCPC with its tradition of not only secret deliberations, but also a single judgment without allowance for the public expression of dissent.

Canada – federalism and the country of ‘peace, order and good government’ 85 259 [1966] SCR 663. 260 1958 (Can), c.37. 261 Munro (n 259), 671. 262 [1988] 1 SCR 401, 431–432. 263 Crown Zellerbach (n 262), 432–434. See also R v Hydro Québec [1997] 3 SCR 213. 264 Crown Zellerbach (n 262), [70]. 265 Crown Zellerbach (n 262), [71]–[75]. 266 (2003) 6 SC(Pt I) 24. 267 See Ch 4 for a discussion of the case. It has been suggested that the case does not satisfy the third criteria of distinctiveness from a matter within provincial control: see Meinhard Doelle, ‘Federal/Provincial Power Struggles in Environmental Law: Marine Pollution and the Canadian Oceans’ (1990) 2(2) Journal of Environmental Law 195, 119–120. 268 [1993] 3 SCR 327 and (1993) CanLII 72 (SCC) 1; the references that follow are to this later report. 269 Labour Relations Board (n 268), 51. 270 Lamer CJ had expressed support for the part of the dissenting judgment of Justices Sopinka, Cory and Iacobucci on this point. 271 Labour Relations Board (n 268), 19. 272 Labour Relations Board (n 268), 19. This was also part of his agreement with the dissenting judgment, but he noted that ‘I am of the view that the power to regulate the labour relations of those employed on or in connection with facilities for the production of nuclear energy is integral to Parliament’s declaratory and p.o.g.g. jurisdictions’. 273 Labour Relations Board (n 268), 7. 274 Labour Relations Board (n 268), 26–27. 275 Labour Relations Board (n 268), 61–62. 276 Labour Relations Board (n 268), 62. 277 Labour Relations Board (n 268), 112. 278 Labour Relations Board (n 268), 62–63. 279 Jack P Siry, Frederick W Cubbage and David H Newman, ‘Global Forest Ownership: Implications for Forest Production, Management, and Protection’ (2009), Paper presented at the World Forestry Congress held at Buenos Aires, 18–23 October; available at http://www.pefc.org/images/stories/documents/external/global_forest_owner ship_FD.pdf (accessed 1 August 2012): see table 1, p 3. 280 Blake Hudson, ‘Fail-safe Federalism and Climate Change: The Case of U.S. and Canadian Forest Policy’ (2012) 44(3) Connecticut Law Journal 925, 932. 281 Hudson (n 280), 947. 282 Hudson (n 280), 947–949. 283 Hudson (n 280), 947. 284 Labour Relations Board (n 268). 285 Stewart Elgie, ‘Kyoto, The Constitution, and Carbon Trading – Waking a Sleeping BNA Bear (Or Two)’ (2007–2008) 13 Review of Constitutional Studies 67, 93. Elgie argues that a liberal construction of POGG, though a very important avenue for empowering the Parliament, is not as viable as the treaty-making powers for addressing all contemporary concerns on environmental issues and climate change; but cf. Vincent P Fiore, ‘Federal Wetlands Regulations in Canada and the United States: Suggestions for Canada in view of Crown Zellerbach and the Peace, Order and Good Government Clause of the Canadian Constitution’ (1993) 27(1) George Washington Journal of International Law and Economics 139. 286 SC 2007, c.30. 287 Christopher Edward Taucar, Canadian Federalism and Québec Sovereignty (Peter Lang Publishing, New York, 2004), 144–151. 288 Of course, some notable critics of the JCPC disagree. Laskin, for instance, takes the

86  Colonial and Post-Colonial Constitutionalism in the Commonwealth view that his ‘examination of the cases dealing with the Dominion’s general power does not indicate any inevitability in the making of particular decisions; if anything, it indicates conscious and deliberate choice of a policy which required, for its advancement, manipulations which can only with difficulty be represented as ordinary judicial techniques’: Laskin (n 100), 1086; cf. W Friedmann, ‘Judges, Politics and Law’ (1951) 29 Canadian Bar Review 811, 827–828. 289 Hogg (n 1), 66. 290 Citizens v Parsons (n 134), 106 (emphasis in original). 291 Citizens v Parsons (n 134), 106–107. 292 Gibson (n 27), 25–30. 293 Only Chief Justice Laskin did not express an opinion on it under this heading, stating that it was unnecessary to do so. 294 Peter H Russell, ‘The Supreme Court and Federal-Provincial Relations: The Political Use of Legal Resources’ (1985) 11(2) Canadian Public Policy 161, 161–164. 295 Russell (n 294), 164. 296 Henry David Rempel, ‘Russell v. the Queen: A Critical Reappraisal’ (1975)10 RJTns Chronique De Jurisprudence 205. Rempel provides a well-considered critique of the confusing approach of Sir Montague Smith in the case. For a discussion on how the JCPC eventually arrived at a different result of establishing concurrent Dominion and provincial jurisdiction over alcohol, see The Honourable Moses J Fish, ‘The Effect of Alcohol on the Canadian Constitution … Seriously’ (2011) 57(1) McGill Law Journal 189. In fairness to the JCPC and the Canadian Supreme Court, which has more or less maintained the interpretive trajectory established by the former on the issue of jurisdictional control of alcohol (and lately hard drugs), the issue of alcohol has historically been a thorny one in Canadian socio-political history.

3 Peace, order and good government in Australia – of legalism and parliamentary sovereignty

This chapter focuses on the application of the peace, order [welfare] and good government clause in Australia. It examines the historical foundations of the clause in Australia and evaluates its judicial interpretation, particularly in the mediation of jurisdictional claims in the country’s federal system. In Australia, both the federal ­government – known as the Commonwealth – and the states are conferred with a power to legislate for the purposes of ‘peace, order [welfare] and good government’. Section 51 of the Commonwealth of Australia Constitution Act 1900 (‘Commonwealth Constitution’ or ‘Australian Constitution’)1 provide for Parliament’s powers to make law for the peace, order, and good government (POGG) of the Commonwealth on a list of enumerated subjects. State constitutions also have similar provisions but mainly under the variant ‘peace, welfare and good government’. In the state of New South Wales, for example, Article 5 of Constitution Act 1902 (NSW) provides that ‘The Legislature shall, subject to the provisions of the Commonwealth of Australia Constitution Act, have power to make laws for the peace, welfare and good government in New South Wales in all cases whatsoever.’2 Western Australia’s Constitution provides for ‘peace, order and good government’.3 This probably goes all the way back to the Western Australian Act 1829 (‘1829 Act’),4 which provided that the King, with the advice of the Privy Council, could ‘authorize and empower any three or more persons’ within Western Australia to ‘make ordain and establish all such laws instructions and ordinances and to constitute such courts and officers as may be necessary for the peace order and good government of His Majesty’s subjects and others within the said settlements’. This Act provided for the temporary government of the colony by some individuals until the colony became ‘further matured’ and the number of colonists increased. The provision is one of the earliest introductions of POGG into what is now the Commonwealth of Australia.5 The Self-Government Acts of the Australia Capital Territory and the Northern Territories6 follow the Western Australia formula. Section 6 of the Northern Territory (Self-Government) Act provides that ‘Subject to this Act, the Legislative Assembly has power, with the assent of the Administrator or the GovernorGeneral, as provided by this Act, to make laws for the peace, order and good government of the Territory.’ In Victoria, the power is simply to make laws ‘in and for Victoria in all cases’:7 an ‘instance of colonial individualism’.8

88  Colonial and Post-Colonial Constitutionalism in the Commonwealth There is general agreement that the variation substituting ‘order’ for ‘welfare’ is of no consequence to the meaning of the clause.9 The High Court of Australia (‘High Court’) declared in Union Steamship Co of Australia Pty Ltd v King (‘Union Steamship’)10 that the two are ‘indistinguishable’.11 In Newcrest Mining (WA) Ltd v Commonwealth12 this view was later confirmed by (the then) Chief Justice Brennan of the High Court, who stated that ‘A law for the government of any territory is no more a law for the peace, order and good government of the Commonwealth than is a law for the peace, order (or welfare), and good government of a State.’13 Chief Justice Gleeson similarly held in Mobil Oil Australia Pty Ltd v Victoria14 that the aforesaid provisions of the Constitution of Victoria, although differently expressed, have the same meaning as the POGG powers of the other states. The discussion in this chapter is set out as follows. The first two parts set out the context for the analysis of the POGG clause in the jurisdiction as part of an organic system. The first part briefly describes the making of the Australian federation as well as its political and constitutional arrangements. The second part traces the history of the introduction of the POGG clause in the colonies that federated and evolved into the Commonwealth of Australia. The third part provides a brief examination of the concept of judicial review in Australian constitutionalism prelude to the main discussion of the meaning, nature and dimensions of the POGG clause in the fourth part. The tradition of legalism has ensured that POGG remains tied to its traditional meaning of a plenary power which is generally unchecked but for the need for it to be exercised with reference to constitutionally delimited heads of power.

Australia’s constitutional system and judicial review – an outline The making of a Commonwealth – from colonies to federation A brief survey of the Australian context – the political and constitutional ­arrangements – is germane to the discussion of the POGG power in the jurisdiction. Australia comprises six states and 10 territories (three of which are selfgoverning), which are key constituents of the Australian federation formed in 1900 from six British colonies. This followed robust constitutional conventions dating from 1891 and which lasted for the better part of a decade.15 British settlement in Australia began in 1788, two decades after the formation of the Canadian federation and the enactment of the British North America Act 1867 (‘BNA Act’). This, as will become clear, directly contributed to the constitutional framing and judicial ­interpretation of the POGG ‘stock phrase’16 in Australian federalism. Basic political and constitutional arrangements of the states New South Wales, Queensland, South Australia, Tasmania, Victoria and Western Australia were all established in the eighteenth and nineteenth centuries as settler colonies ‘in accordance with the then-accepted British imperial template’.17 The

Peace, order and good government in Australia 89 Australian territories gradually moved from being ‘Crown colonies’ administered by colonial governors appointed by the British government and who exercised autocratic powers (with limited accountability to London),18 to limited forms of local representation until they attained the ‘responsible government’ (or ‘selfgovernment’) status largely by the middle of the 1850s.19 On forming a federation, the colonies were very interested in maintaining their existing powers. An important preliminary condition articulated by the proponents of the creation of the Australian federal government evinced this determination.20 In the deliberations leading to federation, it was agreed that ‘the powers, privileges and territories of the several existing colonies shall remain intact, except in respect of such surrenders as may be agreed upon to secure uniformity of law and administration in matters of common concern’.21 To actualise that desire, sections 106 and 107 of the Commonwealth Constitution preserved the totality of the existing legislative powers of the colonies and also reconstituted them into states. The legislative powers of the state Parliaments were preserved except to the extent to which the powers were expressly withdrawn from them by the Constitution or expressly vested in the Commonwealth Parliament. Section 106 provides that the constitution of each state of the Commonwealth shall, subject to the Commonwealth Constitution, continue as at the establishment of the Commonwealth, or as at the admission or establishment of the state, as the case may be, until altered in accordance with the constitution of that state. Section 107 provides that ‘Every power of the Parliament of a Colony which has become or becomes a State, shall, unless it is by this Constitution exclusively vested in the Parliament of the Commonwealth or withdrawn from the Parliament of the State, continue as at the establishment of the Commonwealth, or as at the admission or establishment of the State, as the case may be.’ In this way, the legislative powers of states are at least implicitly incorporated into the Commonwealth Constitution without specific enumeration. A number of High Court decisions have stated this view of the purport of sections 106 and 107.22 The cases, according to Carney, suggest that the constitutions of the states are ‘sourced’ in the Commonwealth Constitution.23 This may be putting the situation too strongly, however, since what the sections do is essentially provide for continuity of pre-existing powers. Put differently, the Commonwealth Constitution generally protects the pre-existing constitutions of the colonies and applies them to the states that emerged from them. In McGinty v Western Australia (‘McGinty’),24 the High Court, per Chief Justice Brennan, observed that section 106 has ‘dual operation’. The first is to convert the colonies to states as part of a federal polity deriving their existence from the Commonwealth Constitution. The second is to confer on the respective states ‘substantially the Constitutions of the antecedent Colonies’. Chief Justice Brennan noted that ‘The same Constitutions as had been conferred on the Colonies prior to 1 January 1901 were continued as the Constitutions of the respective States thereafter, subject to such modifications as were effected by the Commonwealth of Australia Constitution Act 1900 (Imp) and the Constitution of the Commonwealth.’25

90  Colonial and Post-Colonial Constitutionalism in the Commonwealth The Judicial Committee of the Privy Council (JCPC) held in William McCawley v The King (‘McCawley’)26 that the states retained their plenary powers as provided in their various constitutions as masters of their ‘own households’ except insofar as their powers have ‘in special cases been restricted’.27 Gerard Carney has stated that ‘within the imperial constraints on their power, the State Parliaments enjoy a limited form of parliamentary sovereignty comparable to that which Dicey identified as enjoyed by the Imperial Parliament’.28 But, as Justice Rich observed in Melbourne Corporation v Commonwealth (‘Melbourne Corporation’),29 this arises not so much from a constitutional framework that reserves powers to the states but rather derives from the fact that the powers of the Commonwealth are always subject to the provisions of the Commonwealth Constitution itself. It is the Constitution that expressly provides for the continued existence of the states. Consequently, any action on the part of the Commonwealth purporting to be in exercise of its constitutional powers that prevents a state from continuing to exist and function as such is necessarily invalid for being inconsistent with the express provisions of the Constitution. Basic political and constitutional arrangements of the territories Only two of Australia’s 10 territories have full state-type powers.30 However, as stated earlier, the legislative powers of the territories are also, broadly speaking, similar to that of the states. This has been confirmed on a number of occasions by the High Court. In R v Toohey ex parte Northern Land Council (‘Toohey’)31 Justice Wilson considered section 6 of the Self-Government Act of the Northern Territories, which provides for the legislative power of POGG of the territory. According to Justice Wilson, section 6 confers on the Legislative Assembly of the Northern Territory a power which, subject only to the limits provided by the Northern Territory Act, is one that is plenary, like that of the state legislatures. The fact that the territory is constituted as a self-governing community by a statute of the Commonwealth Parliament in no way makes the powers of its legislature ‘less efficacious … than was the constitution of the Australian colonies as self-governing communities in the nineteenth century by virtue of an Imperial statute’.32 This position was approved by Justices Brennan, Deane and Toohey in Capital Duplicators Pty Ltd and another v Australian Capital Territory and another (‘Capital Duplicators’)33 regarding the legislative competence of the Australian Capital Territory (ACT) which also has powers to make laws for POGG. The POGG clause as terms for conferring legislative power on the ACT, the High Court further stated, ‘has been recognized as a plenary power, as this Court pointed out in Union Steamship Co. of Australia Pty. Ltd. v. The King’.34 On a general note, however, it is relevant to observe, as current Chief Justice of the High Court of Australia, His Honour Robert French, recently stated, that there remains a ‘qualitative difference’ between a state and a self-governing territory under the Australian Constitution.35 Due to historical reasons, there are specific constitutional provisions relating to states’ constitutions, their legislatures

Peace, order and good government in Australia 91 and their legislative competence, whereas the self-governing territories are creations of the Commonwealth Constitution. Deriving from this latter fact, the constitutions of the self-governing territories can, if only in theory, be amended by the Commonwealth Parliament.36 Also, there are important constitutional implications for the differences between states and territories, as Melbourne Corporation, discussed further below, shows. Further, section 122 provides that territory ­ ­legislation can be overruled by the Commonwealth Parliament. Basic political and constitutional arrangements of the Commonwealth The federal features of the Commonwealth Constitution basically follow the United States model,37 although the country’s political system, like that of Canada, also combines elements of British parliamentary ‘responsible’ government.38 This creates a dynamic (as in Canada) in which the country tends towards opposing trends in socio-political and constitutional affairs.39 Nonetheless, there are some significant departures from the US example.40 One significant departure was the fact that despite internal preferences, imperial influence determined that the High Court, unlike the US Supreme Court, still had to allow final appeals to the JCPC, particularly on inter-territorial issues.41 The judiciary, particularly the federal courts and, invariably, the High Court, is a critical institution in the resolution of inevitable federal/state tensions.42 This is similar to the experience of most federations, but also due to the consequential tensions arising from the choice of a political system which, as mentioned earlier, is an amalgam of opposing trends – responsible government and a federal structure43 – resulting in the placement of ‘a British heart in an American federal body’.44 The High Court has a central role in Australian federalism through the mechanism of judicial review in this context of ‘competing constitutionalisms’,45 which will be discussed further below. However, it is also relevant to note that until 1986, appeals from the High Court could be made to the JCPC with leave of the former in accordance with section 74 of the Constitution. This requirement of leave – a compromise between those who wished for a final court that was truly Australian46 and those who wished to have the imperial court as the final judicial arbiter – led to a noticeably reduced role for the JCPC in Australian constitutionalism (and federalism)47 and, as will become clear, the meaning and application of the POGG clause that is of interest in the discourse below. All the powers conferred in section 51 to be exercised for the POGG of the Commonwealth are conferred subject to the Constitution. In Australia (as with Nigeria)48 the power to make laws for POGG is conferred on both the Commonwealth and the state governments subject, in the case of the former, to the subjects enumerated in section 51 of the Australian Constitution. Moreover, the nature of the political and constitutional structures of the states (and, to some extent, the territories) vis-à-vis the Commonwealth has a direct impact on the constitutional status of, and has exerted considerable influence on, judicial constructions of the POGG clause in Australian constitutionalism. However, it is relevant

92  Colonial and Post-Colonial Constitutionalism in the Commonwealth to point out that section l09 of the Commonwealth Constitution was included to provide for paramountcy of federal legislation in cases of inconsistency.49 In sum, the Australian political and constitutional system resembles that of Canada in its attempt to adapt the machinery of responsible government to a federal system, but differs significantly from it (and the Indian Constitution, but not the Nigerian Constitution) in the division of powers. Generally speaking, the Commonwealth Constitution creates a federation which resembles the United States in a manner in which powers are assigned to the federal government with a residue in the states (or the people). Judicial review is at the centre of Australian federalism and the resolution of the tensions arising from it. It is appropriate now to consider that important mechanism. Judicial review in Australian constitutional law: a culture of legalism While there is no express provision in the Australian Constitution conferring powers of judicial review on the courts,50 the power of the courts to review the actions of the other branches to determine their constitutionality had always been ‘clearly assumed’ by the framers of the Constitution51 and observed in the practice of the courts.52 Historically, it did not engender debate, largely deriving from antecedents of its practice in the United States, on the one hand, and the fact that the Australian Constitution was, in form and content, an imperial statute, on the other.53 As Justice Fullagar stated in Australian Communist Party v The Commonwealth (‘Communist Party’)54 – one of the most notable constitutional cases in the country55 – judicial review is an integral part of the constitutional tradition of Australia. According to Justice Fullagar, while it has its discontents, ‘in our system the principle of Marbury v Madison is accepted as axiomatic, modified in varying degree in various cases (but never excluded) by the respect which the judicial organ must accord to opinions of the legislative and executive organs’.56 Justice Fullagar’s dictum no doubt affirms the recognition of judicial review as an important aspect of Australian constitutionalism. However, it also pointedly hints at the usual approach of the High Court to it, one that is mostly deferential to the political tradition of parliamentary supremacy with broad implications for constitutional interpretation. The High Court restated the centrality of the judicial role in moderating the country’s federal system in R v Kirby ex parte Boilermakers’ Society of Australia (‘Boilermakers’).57 The majority considered that the conception of independent levels of government exercising powers in different fields of action is not practicable unless ‘the ultimate responsibility’ for deciding the limits of the central and state authorities ‘were placed in the federal judicature’.58 According to the court, the circumstance of federalism places the judiciary in a special position ‘unknown in a unitary system’ or a system with a flexible constitution where Parliament is supreme. This is because a federal constitution must be rigid. So, the government it establishes must be ‘one of defined powers; within those powers

Peace, order and good government in Australia 93 it must be paramount’ but ‘incompetent to go beyond them’.59 Justice Gibbs adopted this position in Victoria v Commonwealth (‘Australian Assistance Plan’)60 and stated further that it was long established that the High Court is vested with the power and the duty to determine whether legislation made by the Parliament of the Commonwealth or by the legislature of a state conforms to constitutional provisions.61 The dominant approach of the Australian High Court to constitutional interpretation has remained that of legalism.62 Chief Justice Dixon confirmed this position at his swearing-in. His Honour stated that it was the only appropriate way for the court to perform its duty of deciding whether a power was rightly exercised in light of the requirements of the country’s federalism. In discharging that important duty, the court was bound to adopt legalism as ‘there is no other safe guide to judicial decisions in great conflicts than a strict and complete legalism’.63 This statement embodies two notable elements of Australian legalism: recognition of the crucial position of the judiciary in the country’s federalism and the role of the court as an interpreter and enforcer of the limits of federal and state powers.64 The second part of the approach has close affinity with the traditional approach of the English courts. In the words of Kathleen Foley, the approach is ‘rule-driven, precedent-focused, and greatly prizes certainty in the law’.65 It also believes that courts should steer clear of ‘questions of policy and matters of politics’.66 Subscribing to the Diceyan conception of federalism as legalism, Justice McHugh, in Austin v Commonwealth (‘Austin’),67 recently re-stated the important role of the judiciary in Australian federalism. He stated that the distribution of functions and powers is an essential element of a federal system. However, the system will not work well or even at all in the absence of an ‘umpire’ whose duty is to ‘define the functions and powers’ of the central and regional governments.68 There is a need to interpret the ‘general terms’ of the ‘constating’ – constitutional – document of the federation, invariably couched in terms that do not prevent disputes concerning the limits of the functions and powers of the different spheres.69 This leads to situations where most federal systems (Australia included) create an ‘ultimate judicial umpire’ whose interpretations of the constitutional document bind both levels of government.70 The High Court is the ‘ultimate judicial umpire’ in Australia.71 It is pertinent to sum up this section with the observation that the approach of the High Court to judicial interpretation is far more complicated and demands a more nuanced analysis than this chapter can provide. At some points in its work, and specifically in the period of the Mason Court, the High Court rejected legalism but reverted to it under Chief Justice Gleeson.72 Some would take the view that it is not clear what position it currently takes.

Peace, order [welfare] and good government in Australia – a brief history The POGG clause had always been an integral part of the founding instruments of Australia, in the same way as it was in Canada and virtually all other colonies of

94  Colonial and Post-Colonial Constitutionalism in the Commonwealth the British Empire.73 It was first introduced to Australia in 1823. The New South Wales Act 182374 acknowledged the need to make laws and ordinances for the colony of New South Wales and its ‘dependencies’. It further noted that expedience of governance dictated that some residents be entrusted with the requisite authority ‘under proper restrictions’ to achieve the purpose. It was lawful for the King, ‘under his sign manual’, to appoint a council of at least five but not more than seven residents of the colony to advise the governor or the acting governor ‘to make laws and ordinances for the peace welfare and good government of the said colony’. 75 Section 24 of the New South Wales Act provided for the ‘peace, welfare and good government’ of the colony and settlement of New South Wales and Van Diemen’s Land respectively.76 Such laws were not to be repugnant to any part of the New South Wales Act or any ‘charter or letters patent or order in council’ issued pursuant to it. Equally important, the laws were not to be repugnant to the laws of England.77 A major form of imperial control of this power was the Crown’s right of disallowance of legislation78 and the need to lay such legislation before the Imperial Parliament in London.79 This vesting of a general law-making power on the governor to enact legislation with the advice of a non-representative legislative council sworn to secrecy80 was typical of the grant of power to the other Australian colonies (which became states with the creation of the federation of Australia in 1901), and common across the Commonwealth. The process of political transformation entailed by the New South Wales Act is particularly relevant in the context of the earliest Australian territories initially settled as penal colonies with little by way of governance structures or laws, with the exception of some criminal laws.81 The introduction of peace, welfare and good government as the basis of legislative competence of legislative councils also took on new significance in this form of government, which was an important milestone in imperial law.82 At the time of unification and federation, the constitutions of all the states except Tasmania contained powers of peace, order [welfare] and good government.83 This provision is historically linked to the two major instruments which were precursors of the constitutions of the various states. One is the Australia Constitutions Act 1842 (‘Constitutions Act 1842’), which was made in recognition of the need to divide the large colony of New South Wales into separate colonies.84 Section 52 provided that if a new colony (or colonies) was subsequently created, it was lawful for Her Majesty to authorise not less than seven persons, including the governor or lieutenant-governor of any such new colony (or colonies), to constitute a legislative council (or legislative councils) for the new colony (colonies). It was lawful for ‘such Legislative Council to make and ordain all such ordinances as may be required for the peace order and good government of any such colony’. The other instrument is the Australia Constitutions Act 1850 (‘Constitutions Act 1850’), which provided that: the Governors of the said Colonies of Victoria, Van Diemen’s Land, South Australia, and Western Australia respectively, with the advice and consent of the Legislative Councils to be established in the said Colonies under this

Peace, order and good government in Australia 95 Act, shall have authority to make Laws for the peace, welfare, and good ­government of the said colonies respectively. The various constitutions of the states evolved from the Constitutions Act 1850 with the result that each one retained the peace, order [welfare] and good ­government clause with the notable exception of Tasmania.85 The powers of POGG that were devolved to the legislatures of the various colonies of Australia (as elsewhere) had, by 1865, become recognised as conferring on them ‘full and plenary’ legislative powers over their colonies as ‘those of the imperial parliament’ itself.86 The colonies were later to form a federation with a central government for various internal and external reasons, including maximising opportunities for trade and territorial protection and defence.87 However, the federating colonies were wary of the Canadian experience and appeared to have been determined to preserve as much power for the states as possible. On the Commonwealth side, section 51 of the Commonwealth Constitution provides that ‘the Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to’ thirty-nine matters. Section 52 makes further important provisions on federal powers of POGG. It confers exclusive powers on the Parliament to make laws for the POGG of the Commonwealth with respect to the seat of government of the Commonwealth, and all places acquired by the Commonwealth for public purposes. It further provides for the POGG powers relating to any department of the public service, the control of which, by the Constitution, is transferred to the Executive Government of the Commonwealth as well as other matters declared by the Constitution to be within the exclusive power of the Parliament.

Peace, order and good government in Australian constitutionalism Two early cases One of the earliest cases which addressed the implications of the peace, welfare and good government clause in Australian law is Nash v Purcell (‘Nash’).88 In that case, objection was taken to New South Wales legislation which imposed the rate of poundage chargeable by pound-keepers. The plaintiff argued that the law was invalid for non-compliance with the procedure prescribed for constituting the legislative council conferred with power to make such legislation. The Supreme Court of New South Wales, per Justice Dowling, with Chief Justice Forbes and Justice Stephen concurring, held that once the law was valid prima facie, it was beyond the jurisdiction of the courts to enquire into the legislative competence of the legislative council. The Court may take judicial notice of a public local ordinance as a valid and binding law upon the inhabitants of New South Wales without preliminary proof being given that the steps required to be taken in making it pursuant to the powers conferred by section 24 of the New South Wales Act 1823 have been adopted. On the ‘peace, welfare and good government’ power in

96  Colonial and Post-Colonial Constitutionalism in the Commonwealth s­ ection 24, Chief Justice Forbes further stated that it was clear that within specified limits: the power of legislating is general, and extends to the highest description of laws. They may create new felonies, they may levy taxes upon the whole Colony. Their acts are not like by laws, extending only to a particular body or place, they are coextensive with the limits of the Colony, and embrace all persons within its territorial boundaries.89 However, the locus classicus from the Australian jurisdiction on the purport of the POGG clause90 is Powell v The Apollo Candle Company Limited (New South Wales).91 Apollo Candle Company brought an action against the Collector of Customs, claiming the return of money which the defendant had imposed and collected on certain items imported by the company. The plaintiff, who paid the money under protest, alleged that defendant was not authorised to claim the duty. The defendant pleaded authority under section 138 of the Custom Regulation Act of 1870 which was made by the New South Wales Parliament under its powers to make laws for the ‘peace, welfare, and good government of the said colony in all cases whatsoever’. It was contended that the New South Wales Parliament could not delegate power delegated to it by the Imperial Parliament to the governor, any other person or body. This argument was upheld by the Supreme Court of New South Wales. However, on appeal to the JCPC, it relied on its decision in Queen v Burah92 and Hodge v The Queen93 to overturn the judgment; two cases which, as discussed in Chapters 1 and 2, are themselves not based on the interpretation of POGG but rather the intrinsic powers of Parliament.94 Their Lordships held that the peace, welfare and good government of the colony in ‘all cases whatsoever’, combined with section 45 of Constitution Act, confers plenary powers of ­legislation to enact the Customs Consolidation Act in issue in the case. The dynamic of specifying the territorial limits of the application of the peace, welfare and good government power highlights a latent issue regarding the jurisdictional limits of the clause – the notion of extra-territoriality. This is a substantial procedural issue and it is relevant to consider it before further substantive ­discussion of judicial interpretation of the POGG clause. The extra-territorial dimension While it is generally understood that the POGG clause confers plenary powers of legislation on the legislature, the issue of territorial limits and the jurisdictional reach of Parliament raises an interesting question regarding the extent of the plenitude of parliamentary powers. Is it of any relevance to Parliament’s unfettered powers of legislation that the subject matter is only remotely connected to, or even beyond, its territorial sphere? This may appear to be a straightforward issue and a plausible answer would, to the cursory observer, be in the affirmative. The doctrine of extra-territorial effect of legislation has been described as ‘colonial in its origins, vague and uncertain in its nature and often inconvenient in its

Peace, order and good government in Australia 97 operation’.95 The main justification for the doctrine is the need to prevent or mitigate jurisdictional conflicts between two sovereign legislatures at the international level. This is because two or more sovereigns may operate on the same territorial area as a matter of international law.96 This may be in terms of activities in international waters, for instance. More germane to this discussion, in the context of a federation, it is relevant as a rule to control the operation of the laws of one state within the territory of another.97 Australia, with a duality, indeed, multiplicity of constitutions (of the Commonwealth, states and territories), draws attention to the importance of this aspect of the application of the POGG clause. The conventional attribution of the power to make laws for POGG as plenary and absolute power is ‘substantive’ rather than ‘territorial’.98 That is to say, the plenary nature of POGG is limited to a defined territory. This was clarified by Chief Justice Dixon in Clayton v Heffron (‘Clayton’)99 while assessing the implication of the first paragraph of section 5 of the New South Wales Constitution Act. The section provides that ‘the Legislature shall, subject to the provisions of the Commonwealth of Australia Constitution Act, have power to make laws for the peace welfare and good government of New South Wales in all cases whatsoever’. According to Chief Justice Dixon, this paragraph confers a complete and unrestricted power to make laws with reference to New South Wales. ‘There is’, his Honour continued, ‘doubtless a territorial limitation implied in the reference to New South Wales but there is no limitation of subject matter.’100 This had nothing to do with the nature of the substantive issue. The law may concern a weighty issue like those of a constitutional nature or deal with matters ‘at the other extreme’ and be on ‘subjects of little significance’.101 Similarly, the issue of territorial limits to the POGG power is implicit in the much earlier statement of Chief Justice Forbes in Nash that the law-making powers of the New South Wales Legislative Council ‘are coextensive with the limits of the Colony’ embracing ‘all persons within its territorial boundaries’.102  A general statement of what constitutes the requirement to be met by the states in making laws with an extra-territorial element of operation had been formulated by Justice Dixon (as he then was) in Broken Hill South Ltd v Commissioner of Taxation.103 According to Justice Dixon, the power to make laws for the POGG of a state does not enable the state Parliament to impose a liability on a person unconnected with the state whether by domicile, residence or otherwise by reference to some act, matter or thing occurring outside the state. However, the state legislature is allowed to consider any fact, circumstance, occurrence or thing which is in or connected with its territory as the basis for legislation which may operate extra-territorially. Moreover, a state legislature is competent to impose liability on a person based on the person’s ‘relation’ to its territory which may ‘consist in presence within the territory, residence, domicil, carrying on business there, or even remoter connections. If a connection exists, it is for the legislature to decide how far it should go in the exercise of its powers.’104 In this case, the only connection between the territory and the income subjected to tax that was being challenged was that it was interest on money secured by the mortgage of property in New South Wales. This connection was held to be sufficient to empower the

98  Colonial and Post-Colonial Constitutionalism in the Commonwealth state Parliament to tax this income. In all, the authorities, he noted, pointed in the direction of a need for the connection not to be too tenuous because ‘an element of degree’ was required.105 This standard is patently not the clearest. In practice, the issue of what would satisfy the test of extra-territorial validity has not been straightforward in the experience of a jurisdiction with a dual conferral of the POGG power on the federal and constituent parts. In Pearce v Florenca (‘Pearce’)106 and again in Robinson v Western Australian Museum (‘Robinson’),107 Justice Gibbs took the view that the doctrine of extra-territoriality is essentially an undue fetter on what is ordinarily considered a plenary power of a state.108 He argued that it was a long accepted principle (for ‘over a hundred years’)109 that the jurisdiction of colonial legislatures extended over the off-shore waters, and it was inappropriate to now limit the powers of the state legislatures.110 This should be extended to the states even in the context of a federation like Australia because there is an ‘intimate connexion between the land territory of a State and its ­off-shore waters’.111 Further, the people of such a state would have been accustomed to exploiting the resources of off-shore waters and using them for recreation. It was inimical to the enforcement of the laws of the state ‘if a person could escape from the reach of the laws and the authority of the State by going below low-water mark’, Justice Gibbs opined.112 Consequently, any requirement of connection as enunciated in Broken Hill should be liberally construed.113 Accordingly, as recently restated by Chief Justice Gleeson, ‘even a remote or even general connection will suffice’.114 This is particularly in circumstances where a paramountcy principle ensures that the jurisdiction of a federal or central government prevails over a constituent part of a country where there is a jurisdictional conflict. The absence of a conflict, he argues, renders such a limitation entirely redundant.115 However, it is humbly submitted that Justice Gibb’s views appear to elide at least three relevant considerations. First, while it is true that colonial legislatures had unlimited powers of legislation over their territories, there were, in theory at least, and, indeed, in practice on few occasions, limits to their powers; repugnancy with the laws of England comes to mind as an example. Second, and more importantly, however, is the fact that colonies had a qualitative difference from states or provinces. Colonies operated and were governed as free-standing dependencies of a ‘mother-country’ not in any way related to one another. This is not the case with states (or such other constituent parts of a country) which, though autonomous, lack sovereign status once they come together (or are brought together as the case may be) to form a country, as is the case with the Australian colonies. This constitutional implication is that, as explained by Justice Windeyer in Victoria v The Commonwealth (‘Payroll Tax’),116 the colonies which became states in 1901 were not previously sovereign bodies ‘in any strict legal sense’ and the Commonwealth Constitution did not confer such status on them.117 The states, his Honour ­continued, were previously: Self-governing colonies which, when the Commonwealth came into existence as a new Dominion of the Crown, lost some of their former powers

Peace, order and good government in Australia 99 and gained no new powers. They became components of a federation, the Commonwealth of Australia. It became a nation.118 A third point which flows from the last is the circumstance of federation with autonomous units which constitute a country, again, like the Commonwealth of Australia, with equal and competing constitutional powers and jurisdiction but only over specific territory deriving from their status formerly as free-standing colonies but now as recognised individual entities by a federal constitution. The possibility of inter-jurisdictional conflicts is real and this necessitates territorial limitations on legislative competence. In view of the foregoing, the better and arguably prevailing view is that there is a difference between the extra-territorial legislative capacity of the Commonwealth as against the states (and arguably territories). This is the view expressed by Chief Justice Barwick in Robinson. According to him, the POGG power of the state is a condition for the extra-territorial operation of state law. He went on state (obiter) that this was not the case with the Commonwealth. Once the law in issue falls within one of the heads of power granted by the Constitution to the Commonwealth the law is valid even when its subject matter extends beyond the territorial limits of the Commonwealth. In other words, the ‘peace, order and good government’ power does not, unlike the case with the states, operate as a limiting consideration to the legislative competence of the Commonwealth Parliament.119 However, international acceptance remains a practical limitation upon the exercise of such a power, unlimited as it is in theory.120 These points find support and were further elucidated in the later decision of Chief Justice Barwick in New South Wales v Commonwealth (‘Seas and Submerged Land’).121 His Honour stated that if the power of the states as colonies had ever extended to the high seas, this ceased with the creation of the Commonwealth of Australia in 1900.122 The POGG clause in the constitutions of the states did not extend to the high seas, which are deemed as lying outside their territories.123 The test of validity of law having an extra-territorial operation is its relationship to the POGG of the territory for the government of which the legislature has been constituted. According to Chief Justice Barwick, ‘If such a law did not so touch and concern that territory it would not be valid simply because it operated in the marginal seas. It would not achieve validity by its operation in the territorial sea.’124 Control of the territorial waters and territorial seas is a matter of international law based on international comity and it is the legislature of a nation state like Australia that is empowered under international conventions to make laws about and operate in the territorial seas.125 In Robinson,126 the High Court had to decide whether state legislation providing for wrecks lying off the coast was valid as being made for the POGG of the state. A Dutch vessel named Vergulde Draeck was blown off course and was wrecked at a point near the Western Australian coast in 1656. The wreck lay some 2.87 miles from shore. The plaintiff claimed to have located the vessel. He had notified relevant authorities of his find as required by law. He then relocated and salvaged some items from the wreck. However, the state later passed legislation,

100  Colonial and Post-Colonial Constitutionalism in the Commonwealth the Museum Act 1969 (WA), which repealed the Museum Act 1959, and the Maritime Archaeology Act 1973 (WA). Both effectively prevented him from further salvage or receiving compensation for what he had already done or might yet do in relation to the wreck. The state challenged the plaintiff’s interest to bring such a suit, insisting on the validity of the legislation. All the judges found that the plaintiff had sufficient interest in bringing the case. There was, however, an equal split among the six judges (Chief Justice Barwick, Justices Gibbs, Stephen, Mason, Jacobs and Murphy) on the validity of the laws as enactments of the legislature of Western Australia.127 Chief Justice Barwick upheld the claim of the plaintiff on the basis that the laws were invalid. The ship lay within an area that was generally outside the territorial limits of the state and was ordinarily outside its legislative competence.128 However, where a law satisfies the test of being one ‘for the government of the State’ it may validly operate beyond the actual boundaries of the land mass which constitutes the territory of the state. In such cases, the validity turns on whether the law in issue ‘can properly be said to be a law for the peace, order and good government of that territory’.129 In this case the laws in issue did not satisfy the extra-territorial test because there was no connection between the ship and the state of Western Australia. His Honour rejected the argument that the laws were for the POGG of Western Australia on the basis that the wrecks had historical significance. His honour held that the wrecks were of Dutch ships on commercial trips between Holland and the East Indies which were not involved in any exploratory activities in Australia or its coastline. Justice Murphy agreed with Chief Justice Barwick that the Maritime Archaeology Act was ultra vires the state Parliament’s powers and upheld the claim of the plaintiff. He implicitly agreed that the POGG clause was a limitation on the legislative competence of a state.130 Justices Gibbs and Mason, however, disagreed with the finding of Chief Justice Barwick and held that the legislation in issue dealt with the wrecks of historic ships and was designed to ensure their preservation for the benefit of the state and its citizens. Justice Gibbs was content to rest his findings on this point and further that the wreck was within the three-mile limit,131 thereby only implicitly contesting the position that the POGG clause was a limitation on the extra-territorial powers of a state. Justice Mason directly engaged the issue. According to his Honour, there is a sufficient connection between legislation regulating the ownership or possession of historic wrecks on or near the coasts of Western Australia and the POGG of the state.132 As a result of their historic value, ‘the Acts are Acts for the peace, order and good government of the State and have a sufficient relationship with the State’.133 This is especially the case because the laws are similar to state laws which regulate fisheries and fishing beyond the territorial limits of the state and deemed to be within the legislative competence of a state.134 Justice Stephen also dismissed the plaintiff’s claim on the right to compensation but not on the issue of the POGG power or the question of extra-territoriality. Rather, his Honour considered the claims in the case as concerning the laws of derelict ships in English maritime law. His Honour sidestepped the issue of the validity of the challenged legislation, relying only on the facts to come to the

Peace, order and good government in Australia 101 decision that the plaintiff was mistaken about his rights to benefit from the wreck. He observed that even if the legislation were invalid, the state of the law would still not confer any privileges on the plaintiff.135 Justice Jacobs also did not engage the POGG argument but, for reasons similar to that discussed by Justice Stephen (but with the opposite outcome), upheld the claim of the plaintiff.136 The recent case of XYZ v Commonwealth of Australia137 confirms the extra-­ territorial application of the POGG power with respect to the legislative competence of the Commonwealth of Australia under section 51 of the Constitution. The issue in XYZ was the validity of sections 50BA and 50BC of the Crimes Act 1914 enacted by the Commonwealth Parliament, which makes it a criminal offence, punishable by the law of Australia, for an Australian citizen or resident, while outside Australia, to engage in certain forms of sexual activity relating to children. The power relied upon to support the legislation was that conferred by section 51(xxix) of the Constitution, that is, the power to make laws for the POGG of the Commonwealth with respect to external affairs. The plaintiff was an Australian citizen charged by the Commonwealth Director of Public Prosecutions in the County Court of Victoria for sexual offences allegedly committed in Thailand between July and December 2001 contrary to the Crimes Act 1914. In advance of his arraignment in the County Court, the plaintiff, on 25 February 2005, instituted an action in the original jurisdiction of the High Court seeking a declaration that sections 50BA and 50BC of the Crimes Act were not valid laws of the Commonwealth. The court upheld the validity of the charges. The issue raised in the case was whether a law which applies to conduct outside Australia by Australian citizens or residents is within the legislative competence of the Commonwealth Parliament as being a law for the POGG of Australia with respect to external affairs. The court rejected the argument of the plaintiff that ‘external affairs’ was limited to power to make laws with respect to relations between Australia and other countries because, in 1901, when the Commonwealth Parliament passed the Constitution, those countries included Great Britain, which was not ‘a foreign country’ at the time.138 Rather, the authority of Parliament under section 51(xxix) of the Commonwealth Constitution extended to the power to regulate the conduct of Australian citizens abroad. Thus, the provisions of sections 50BA and 50BC of the Crimes Act 1914 were laws made for POGG with respect to external affairs. It was appropriate for the Commonwealth of Australia but not the states to seek to regulate the conduct of Australian citizens outside the country because this was a matter of Australian sovereignty. The facts of the case, the High Court stated, disclosed that the criminal proceedings concerned the protection of children from sexual conduct of foreign nationals (sex tourism). This has been a matter of concern to the international community and within the international system. The major thrust of the decision is that the facts raised the issue of the ‘nationality principle’ under international law. The principle recognises the power of a country to regulate the conduct of its citizens and residents abroad.139 It is a matter that concerned the ‘international relationships of Australia with other nation states and international organisations’ and, so, is within the POGG powers on external affairs in the

102  Colonial and Post-Colonial Constitutionalism in the Commonwealth Commonwealth Constitution.140 As Chief Justice Gleeson stated, the placitum in section 51(xxix) ‘allows the Australian body politic to exercise the plenitude of power which flows from nationhood and independence. That involves no threat to the legislative capacity of the States’.141 While still recognising the power of the states to make some legislation with extraterritorial effect to maintain the required balance of federalism, Kirby J noted in this regard that states are ‘­substantially … only concerned with lawmaking for their own geographical ­territory and not beyond’.142 The Australia Acts It is relevant to briefly discuss the Australia Acts 1986 in light of their provisions on the POGG power, the legislative power of states and the issue of extra-­territoriality. The Australia Acts 1986 are two related and generally similarly worded statutes.143 They were passed simultaneously by the Westminster Parliament and Commonwealth Parliament after consultations between the two governments to consolidate Australian independence by removing any vestiges of UK control over Australia.144 The preamble to the Australian version declares that it is ‘An Act to bring constitutional arrangements affecting the Commonwealth and the States into conformity with the status of the Commonwealth of Australia as a sovereign, independent and federal nation.’ Two sections, 2 and 5, of the Australia Acts are of interest here. Section 2(1) provides that ‘It is hereby declared and enacted that the legislative powers of the Parliament of each State include full power to make laws for the peace, order and good government of that State that have extra-territorial operation.’ It has been observed that this provision is declaratory of the existing position at common law.145 Section 2(2) further declares and enacts that ‘the legislative powers of the Parliament of each State include all legislative powers that the Parliament of the United Kingdom might have exercised before the commencement of this Act for the peace, order and good government of that State’. However, nothing in the subsection ‘confers on a State any capacity that the State did not have immediately before the commencement of this Act to engage in ­relations with countries outside Australia’. The question is whether section 2 increases the extent of the extra-territorial powers of the states. The prevailing view on this is that the section does not. This is particularly so when the provisions of section 5 are considered, which provides that section 2 (and section 3(2)) is subject to the Commonwealth of Australia Constitution Act and to the Constitution of the Commonwealth. It further provides that section 2 (as well as section 3(2)) do not operate to give any ‘force or effect to a provision of an Act of the Parliament of a State that would repeal, amend or be repugnant to this Act, the Commonwealth of Australia Constitution Act, the Constitution of the Commonwealth or the Statute of Westminster 1931 as amended and in force from time to time’. This means in part that the Australia Acts do not confer any wider powers on the states than they previously had before the enactment of the legislation.146 It appears that the major implication of the two

Peace, order and good government in Australia 103 sections is to remove any ‘subordinate’ or ‘colonial’ status of the states in terms of their legislative powers.147 However, the requirement of connection in the exercise of their legislative powers remains since the states are still subject to ‘the federal structure imposed by the Commonwealth Constitution’.148 Besides the territorial implications, there is also the issue of the nature of the constitutional framing of the POGG clause in the context of the distribution of jurisdictional powers of the Commonwealth as against the states (and, by extension, the territories). This concerns the consideration of residual powers which is an important issue in the distribution of powers in a federation. Residual powers can be critical in light of the fact that no constitutional arrangement can be as perfect as to successfully pre-empt and expressly provide for all conceivable developments requiring constitutional provisions for distribution in a federal state.

Peace, order and good government and the residue of powers There is an important difference between the operations of the POGG power of the federal as against the states in Australia. While the POGG powers of the former are restricted to the enumerated heads in sections 51 and 52, the states are not so restricted save by the need to respect the principle of extra-territoriality, discussed above. This limitation – the proposition that Australian federalism creates limits on the scope of the express constitutional powers of the Commonwealth in legislation – was stated by the High Court in Melbourne Corporation and has come to be known as the ‘Melbourne Principle’. The issue in Melbourne Corporation was whether section 48 of the Banking Act 1945 (‘the Banking Act’),149 which prohibited banks from conducting any banking business for a state or a state authority, including a local government authority, except with the written consent of the Commonwealth Treasurer, was a valid constitutional enactment. The Commonwealth Parliament had passed the Banking Act requiring states and local governments to bank only with the Commonwealth Bank. The legislation specified penalty for non-compliance. The Banking Act was allegedly made pursuant to the Commonwealth Parliament’s POGG powers in section 51(xiii) of the Commonwealth Constitution. The placitum provides for Commonwealth powers on ‘Banking, other than State banking; also State banking extending beyond the limits of the State concerned, the incorporation of banks, and the issue of paper money.’ It was argued for the plaintiffs that section 48 simply picked out states and state authorities for subjection to a Commonwealth banking monopoly without any reason that could be described as a reason grounded upon any considerations relating to banking. Section 48 was discriminatory because it sought to control states and state authorities in respect of their banking business. The nature of section 48, it was further contended, would not be legislation truly with respect to banking, but rather legislation with respect to the particular classes of persons arbitrarily selected by the Treasurer (vested with powers to designate state

104  Colonial and Post-Colonial Constitutionalism in the Commonwealth authorities for compliance) for disqualification or limitation in respect of banking business. The High Court was required to pronounce on the validity of the legislation but especially section 48. The court held that section 48 was invalid because it discriminated against the states. It stated that ‘the very nature of the federal compact’ limits the power of the Parliament under section 51(xiii) of the Commonwealth Constitution to make laws for POGG with respect to banking. According to Chief Justice Latham, ‘The Commonwealth Parliament has no general power to make laws for the peace, order and good government of the people of Australia.’150 In declaring the impugned section 48 invalid, the court held that the country’s federal system contemplates ‘two independent political organisms’ which exist and exert ‘divided authority’ over the same persons and territory with neither interfering with capacity of the other. As a result: a federal law which purports to bind the States must be examined to ascertain whether it is really a law for the peace, order and good government of the Commonwealth with respect to one of the enumerated subjects, or a law which, under colour of such a purpose, is really a law the purpose of which is to interfere with such functions. Coming close to the operation of the emergency branch of the POGG power in the Canadian jurisdiction,151 Justice William suggested that during periods of emergencies (‘hostilities’), a federal law discriminating against the states could be justified under the defence power. However, in the absence of emergencies, if the law ‘in pith and substance’ seeks to give directions to the states as to the manner in which they shall exercise their executive, legislative or judicial governmental functions, then such a law is not for the POGG of the Commonwealth. It is rather an unlawful interference in the constitutional affairs of the states. Similarly, in Bank of NSW v Commonwealth (‘Bank Nationalisation’)152 Justices Rich and Williams noted that the Commonwealth Parliament, unlike the ‘English Parliament’, is not ‘omnipotent’ because it lacks a general authority to make laws for the POGG of the Commonwealth.153 This contrasts with the powers of the states to make laws for the POGG of their several territories. As their Lordships further stated, this is because the Constitution enumerates the powers of the Commonwealth.154 Notwithstanding the reference to emergencies (‘hostilities’ in the language of the court) in Melbourne Corporation, it has not been accepted by the High Court as a basis for expanding the powers of the Commonwealth, at least not without definitive attachment to an ascertainable head of power constitutionally assigned to the Parliament. Neither has there been a direct recognition of matters of national concern or even gaps in legislative competence as a basis for the exercise of the POGG power by the Commonwealth Parliament. It is doubtful whether the jurisprudence of the court will change substantively on this point in the near future. In this regard, Chief Justice Barwick of the High Court affirmed that ‘The Commonwealth is a polity of limited powers, its legislative power principally

Peace, order and good government in Australia 105 found in the topics granted by ss. 51 and 52.’155 It may have some (inherent) legislative and executive powers from the ‘very formation of the Commonwealth as a polity and its emergence as an international state’.156 However, there is ‘no room’ to accommodate federal powers to legislate for POGG over matters not enumerated in the Constitution on the view that they constitute matters of ‘national interest or concern’.157 It is widely agreed that, like the economy, ‘there are many topics’ of considerable concern to the whole of Australia that remain unassigned to the Commonwealth.158 Specifically, Chief Justice Barwick stated in Australian Assistance Plan that while it is undeniable that ‘the economy of the nation is of national concern’ the Commonwealth lacks direct powers to make national legislation on it since it is not assigned any specific power over the economy. Rather, any control it exercises must be through ‘indirection’ acting on constitutionally assigned federal matters like taxation, customs and excise and banking, including the activities of the Reserve Bank as well as the budget.159 In Australian Assistance Plan, Chief Justice Barwick further held that the powers of the Commonwealth Parliament to make laws for POGG under section 51(xxxi) ‘for any purpose in respect of which the Parliament has power to make laws’ is limited to ‘the purposes of the Commonwealth’ in Section 81.160 For the Chief Justice, no matter how desirable it is for the Commonwealth Parliament to exercise power ‘in affairs truly national in nature’, it remains an imperative that the federal distribution of powers as stipulated in the Constitution be maintained.161 In other words, the POGG provisions in section 51 do not confer residual powers on the Commonwealth Parliament. Rather, the powers of the Commonwealth are limited to specific enumerated subjects in the Constitution. The legislative powers of the states, on the other hand, are not contained in a single constitutional document. This is because the Commonwealth Constitution, as Andrew McLeod points out, constitutes the Commonwealth as a ‘polity of limited powers’ and the states as ‘polities of residual power’.162 Thus, states have plenary legislative powers of POGG over their territories.163 However, within the ‘appointed limits’ of the enumerated subjects in the Commonwealth Constitution, the legislative power of the Parliament of the Commonwealth to make laws for the POGG of Australia is ‘supreme’ subject only to limitations imposed by the Constitution.164 In effect, unlike the case with Canada, the position seems to remain in Australia that unassigned powers do not fall into a residue for the Commonwealth Parliament and its powers to legislate for POGG must be exercised only with reference to and not beyond the confines of a specified subject in the Constitution because ‘to whatever source it be referred, any act or activity of the Commonwealth must fall within the confines of some power, legislative or executive, derived from or through the Constitution’.165 However, the recognition of a national concern function for the POGG power (though in conjunction with another provision of the Commonwealth Constitution) appears to have received formidable support from a majority of the High Court in the recent decision of Pape v Commissioner of Taxation (‘Pape’).166

106  Colonial and Post-Colonial Constitutionalism in the Commonwealth In response to the global recession, the Australian Government enacted the Tax Bonus for Working Australians Act (‘the Tax Bonus Act’) and the Tax Bonus for Working Australians (Consequential Amendments) Act (‘the Consequential Amendments Act’).167 The stimulus package would provide support to about 8.7 million taxpayers in the form of one-off payments ranging from $250 to $950. The plaintiff, Bryan Pape, was one of those deemed entitled to such support, but he challenged the constitutional validity of the legislation maintaining that the payment was unlawful. Four procedural and substantive questions were agreed on by the parties in the special case submitted for the opinion of the Full Court, only one of which is of interest here, namely the validity of the Tax Bonus Act under one or more express or implied heads of legislative power in the Commonwealth Constitution.168 Suffice it to say that a majority of the court – Chief Justice French, Justices Gummow, Crennan and Bell – upheld the right of the plaintiff to institute the action and that the Tax Bonus Act was a valid law of the Commonwealth Parliament which was supported by section 51(xxxix) of the Constitution. The court held that the Tax Bonus Act is incidental to the exercise by the Commonwealth Government of its executive power under section 61 of the Constitution. For clarity, section 51(xxxix) provides that the Parliament shall, subject to the Constitution, have power to make laws for the POGG of the Commonwealth with respect ‘to matters incidental to the execution of any power vested by this Constitution in the Parliament or in either House thereof, or in the Government of the Commonwealth, or in the Federal Judicature, or in any department or officer of the Commonwealth’. Section 61 provides that the executive power of the Commonwealth is vested in the Queen, is exercisable by the Governor-General as the Queen’s representative, and extends to the execution and maintenance of the Constitution and of the laws of the Commonwealth. The Commonwealth argued in part that the impugned Act was supported on any or all of five bases. One of these, the implied ‘nationhood power’, is the only part of the argument that is of interest here. On this point, the court reviewed a number of statements in some of its earlier decisions in which the notion of implicit federal powers of national concern and emergency powers were referred to or discussed. These included Communist Party (discussed above), Barton v The Commonwealth,169 Attorney-General (Vict) v The Commonwealth170 and Davis v The Commonwealth.171 The majority adopted Justice Mason’s view in Australia Assistance Plan that the Commonwealth does have some implied powers apart from those enumerated in the Australian Constitution which ‘stem from its existence and its character as a polity’.172 Their Honours were particularly united in approving Justice Mason’s view that: there is to be deduced from the existence and character of the Commonwealth as a national government and from the presence of ss  51(xxxix) and 61 a capacity to engage in enterprises and activities peculiarly adapted to the government of a nation and which cannot otherwise be carried on for the benefit of the nation.173

Peace, order and good government in Australia 107 Justices Gummow, Crennan and Bell stated that the facts raised ‘novel or at least unusual matters’.174 The situation was analogous to ‘determining a state of emergency in circumstances of a natural disaster’ to which the ‘Executive Government’ (sic) is best suited to respond.175 It is a power with ‘roots in the executive power exercised in the United Kingdom up to the time of the adoption of the Constitution but in form today in Australia it is a power to act on behalf of the federal polity’.176 Crucially, their Honours went on to hold that what was ‘of immediate, and decisive, importance’ in Pape ‘is the notion of national crisis’.177 They noted the apprehension of states regarding a possible undue expansion of the Commonwealth powers inherent in the recognition of the nationhood power. In responding to this, their Honours, it is submitted with respect, introduced a measure of ambivalence to their decision which may later form the basis for rejecting it by a differently constituted High Court. They stated that: in considering what enterprises and activities are peculiarly adapted to the government of the country and which cannot otherwise be carried on for its benefit, this case may be resolved without going beyond the notions of national emergency and the fiscal means of promptly responding to that situation … The point is that only the Commonwealth has the resources to meet the emergency which is presented to it as a nation state by responding on the scale of the Bonus Act … The present is an example of the engagement by the Executive Government in activities peculiarly adapted to the government of the country and which otherwise could not be carried on for the public benefit.178 As a result, legislation is necessary and the authority to enact it is supplied by section 51(xxxix) of the Constitution.179 While the first part of the above quotation ostensibly refers to the notion of ‘nationhood’ or national concern as forming the basis of the decision, the emphasised part clearly imported the emergency branch into it. As discussed with reference to Canada, each represents a distinct strand of the POGG power with different implications. Significantly, only three of the four Justices relied on the ‘nationhood’ power in finding for the plaintiff. Chief Justice French differed from the position of Justices Gummow, Crennan and Bell on the relevance of the national concern power in the case. Chief Justice French specifically stated that on the facts, ‘the identification of a class of events or circumstances which might, under some general rubric such as “national concern” or “national emergency”, enliven the executive power does not arise for consideration’.180 Thus the concurrence of his Honour with the other three Justices excluded this point on which the decision of the latter was also based. Nonetheless, like Justices Gummow, Crennan and Bell in their joint judgment, the Chief Justice also adopted Justice Mason’s formulation of a ‘nationhood’ power of the Commonwealth Parliament. The three other Justices, Hayne, Kiefel (jointly) and Justice Heydon, declared the Tax Bonus Act invalid. Justices Hayne and Kiefel, in their joint dissenting judgment, were disposed to recognising the existence of ‘some implied legislative power in the Parliament that follows from the existence of the national polity’.181

108  Colonial and Post-Colonial Constitutionalism in the Commonwealth However, they maintained that the power extends only to laws to check subversive activities but not the general subject of the ‘national economy’.182 The nationhood power did not confer control of the national economy on the Commonwealth Parliament or government by virtue of the combined effects of section 51(xxxix) and 61 of the Commonwealth Constitution. While the Constitution intended to create a national economy, the Commonwealth Parliament was not given any express head of power with respect to such a subject matter. In any event, what constitutes ‘national economy’ is uncertain. This prevents the application of an implied nationhood power to control it.183 On a confusing note, their Honours concluded their position on this point that: the argument that power with respect to the national economy is a necessary implication from the constitutional text and structure amounted ultimately to no more than the proposition that the economic circumstances that now exist require national action. That provides no sufficient basis for the implication of the asserted power.184 Justice Heydon was strident in his rejection of the proposition, which he dismissed as ‘mercurial’.185 According to his Honour ‘the mere fact that controlling economic crises is a matter of national interest does not lead to the conclusion that the Commonwealth has any power to control them apart from the powers expressly granted to it’.186 However, there are indications that Pape will be restricted in its scope for expanding the POGG powers of the Commonwealth. This most recently emerged in the majority decision (6–1) in Ronald Williams v Commonwealth of Australia and others (‘Williams’).187 In Williams the High Court refused to assent to the assumed powers of the Commonwealth either under section 61 or 51(xxxix) of the Constitution as canvassed by the Commonwealth. Section 61 is the executive power provision and it states that the executive power of the Commonwealth ‘extends to the execution and maintenance of this Constitution, and of the laws of the Commonwealth’ and the Commonwealth sought to rely on it. The High Court held that a challenged funding agreement between the Commonwealth of Australia and Scripture Union Queensland (SUQ) for the provision of chaplaincy services at a state school in Queensland was invalid and was not supported by section 61 of the Commonwealth Constitution. As stated earlier, the Commonwealth sort to rely inter alia on sections 51 and 61, but also the High Court decision in Pape. The court rejected the submission. The Commonwealth had relied on two main arguments in respect of its section 61 executive power: one narrow, the other broad.188 The broad one was that it was entitled to engage in the agreement and provide the funding as part of its executive power which is similar to that of an ordinary person and was unrestricted as long as it did not interfere with the rights or duties of another. The narrow submission was to the effect that the executive power was enabled in this regard as coming under the express legislative powers conferred in sections 51, 52 and 122 of the Commonwealth Constitution. As a result, there was no

Peace, order and good government in Australia 109 requirement for specific legislation for the purpose since it had legislative jurisdiction over the issue. The High Court held that the funding agreement and payments made under it to SUQ were invalid because they were beyond the executive power of the Commonwealth. A majority of the court held that the Commonwealth’s executive power does not include a power to do what the Commonwealth Parliament could authorise the executive to do, such as entering into agreements or contracts, whether or not Parliament had actually enacted the legislation. Legislation is required to authorise such an arrangement. The majority held that section 61 could not avail the Commonwealth in the absence of such legislation. Parliamentary sovereignty and peace, order and good government The position of the High Court on the federal powers of POGG has remained that it is a plenary power subject essentially only to the qualification that the exercise of the power must be in accordance with a subject matter constitutionally designated to the Commonwealth Parliament. In Attorney-General (Vic) ex rel Dale v Commonwealth (‘Pharmaceutical Benefits’)189 the High Court declared that it is the prerogative of Parliament, as a purely political matter, to decide how to exercise its powers of taxation, subject only to the express constitutional prohibition on non-discrimination among the states as provided in section 51(ii) of the Commonwealth Constitution. As a result, it is entirely left to the Commonwealth Parliament to determine that any particular taxation law is or is not for the POGG of the Commonwealth. No legal criterion can be formulated by a court to make a determination otherwise. The leading case on the nature and scope of the power to make laws for the ‘peace, order and good government’ in Australia is the Union Steamship. King, a worker on a steamship of the appellant, registered in New South Wales but travelling worldwide, went deaf in the course of his work on the steamship. His claim for compensation was upheld in the Compensation Court and on appeal to the New South Wales Court of Appeal based on the Workers’ Compensation Act 1926 of New South Wales (‘the State Act’). The main issue in the appeal to the High Court was a conflict between state (New South Wales) legislation and federal legislation regarding the rights to compensation for an employee injured (loss of hearing) in the course of employment. It was contended that the more liberal state legislation conflicted with the powers of the Commonwealth legislature to make laws for the ‘peace, order and good government’ of Australia. The reason why the validity of the State Act was a critical issue in the Compensation Court was the fact that, unlike the federal legislation, the respondent’s loss of hearing entitled him to claim compensation by virtue of section 46 of the State Act. It was held that the law was a valid law of the state of New South Wales as laws for the peace, welfare and good government of the state. After reviewing and approving a line of nineteenth-century British Commonwealth cases190 decided by the JCPC, the High Court held that the line of ‘high’ judicial authorities demonstrates that the words the ‘peace, order and

110  Colonial and Post-Colonial Constitutionalism in the Commonwealth good government’ are not words of limitation.191 Rather, ‘within the limits of the grant, a power to make laws for the peace, order and good government of a territory is as ample and plenary as the power possessed by the Imperial Parliament itself’.192 Accordingly, the court (or any other court for that matter) lacked the jurisdiction to strike down legislation on the ground that, in the court’s view, such legislation fails to promote or secure the POGG of the colony. This position, it held, is hinged on parliamentary supremacy. The Australian High Court could not impeach legislation on this score any more than could the courts of the United Kingdom.193 The crux of the position of the High Court is captured in this frequently cited excerpt from the unanimous decision, which stated that the words ‘for peace, order and good government’: did not confer on the courts of a colony, just as they do not confer on the courts of a State, jurisdiction to strike down legislation on the ground that, in the opinion of a court, the legislation does not promote or secure the peace, order and good government  of the colony. Just as the courts of the United Kingdom cannot invalidate laws made by the Parliament of the United Kingdom on the ground that they do not secure the welfare and the public interest, so the exercise of its legislative power by the Parliament of New South Wales is not susceptible to judicial review on that score.194 The implication of this finding, as the High Court affirmed in Polyukhovich v Commonwealth of Australia and another (‘War Crimes’),195 is that ‘save possibly for quite extraordinary circumstances’ only the Commonwealth Parliament itself can judge whether legislation which otherwise falls within its power is for the POGG of the Commonwealth.196 On the basis of the POGG clause, the High Court in this case upheld retrospective legislation to punish Australian citizens for war crimes ­committed in Europe during the Second World War. It is significant that such ‘extra-ordinary circumstance’ suggested by Justice Dawson in War Crimes was later taken up by him in Kable v Director of Public Prosecutions (NSW) (‘Kable’).197 In Kable, the appellant challenged a New South Wales law, the Community Protection Act 1994, which ordered his preventive detention for the protection of the community. It was argued inter alia for Kable that the law was in substance an instance of judicial, rather than legislative, exercise of power. It constituted an interference with the judicial process and thus infringed the principle of separation of powers. The majority of the High Court agreed with the case for the appellant and allowed his appeal. However, Chief Justice Brennan and Justice Dawson dissented. In dismissing the claim, Chief Justice Brennan, stated obiter that only extra-territoriality could limit the power of a State Parliament to legislate for the POGG clause. In his dissent, Justice Dawson noted that the issue of whether there could be any limitation on the power of Parliament to legislate based on POGG had also been reserved earlier in Union Steamship before his comments in War Crimes. The High Court had observed in Union Steamship that there could be a separate issue as to whether the exercise of legislative power could be subject to some form of

Peace, order and good government in Australia 111 restraints by virtue of consideration of ‘rights deeply rooted in our democratic system of government and the common law’198 but did not proceed to explore that possibility further. Justice Dawson stated that it was ripe to take on the issue in Kable. The correct approach to enunciating the nature of the POGG power was that, barring territorial limits, Parliament remains supreme. It is not otherwise constrained by ‘the nature of a power to make laws for peace, order (or welfare), and good government’, nor, for that matter, can any notion of fundamental rights prevail against its will. This is because ‘the doctrine of parliamentary supremacy is a doctrine as deeply rooted as any in the common law. It is of its essence that a court, once it has ascertained the true scope and effect of an Act of Parliament, should give unquestioned effect to it accordingly.’ It is relevant to note that an important aspect of Justice Dawson’s dissent in Kable was the finding that, unlike the Commonwealth Constitution, the New South Wales Constitution Act 1902 does not vest judicial powers exclusively on the judiciary. This fact, as Justice Dawson observed, was ‘fatal’ to the challenge against the legislation in issue here. It is not entirely clear whether the existence of express provisions for separation of powers in the New South Wales Constitution would have affected the overall decision in Kable. What is reasonably clear is that it would not have affected the basic position regarding construction of the nature of the powers of the New South Wales Parliament or that of any other state in the Commonwealth of Australia for that matter. Indeed, in Kable, Justice Dawson had gone further, stating that the New South Wales Constitution was in that regard ‘uncontrolled’ and Parliament could have gone on to disregard any requirement of separation of powers. In any event, many other cases have upheld the view that the nature of the POGG power is plenary and unquestionable as an expression of parliamentary supremacy. Tasmania, unlike the other Australian states, does not have the ‘peace, order [welfare] and good government’ clause in its Constitution. However, it is generally accepted that by virtue of section 14 of the Australian Constitution Act 1850, the Tasmanian Parliament has authority to make laws for the peace, welfare, and good government  of Tasmania.199 In David Campbell Strachan, Robert John Kelly, Alistair Bruce Gibb v Caroline May Graves200 the Supreme Court of Tasmania upheld the plenary nature of the peace, welfare and good government clause in the state of Tasmania as basis for challenged legislation. It was invited to strike down section 5 of the Fisheries Amendment Act 1995 (No 99 of 1995) of the state of Tasmania for being ultra vires the legislative power of the Parliament of the state of Tasmania in that the section was not a law for the peace, welfare and good government of the aforesaid state. This was based on alleged unequal and discriminatory treatment created by the section. In declining, the Court referred with approval to Union Steamship. The Court dismissed the suggestion in Building Construction Employees and Builders’ Labourers Federation of New South Wales v Minister for Industrial Relations (‘New South Wales BLF’)201 of the possibility of a limitation on legislative power based on the ‘peace, order and good government’ clause as expressed by Chief Justice Street and Justice Priestly. It held that since the Tasmanian Parliament had powers to make

112  Colonial and Post-Colonial Constitutionalism in the Commonwealth laws for the peace, welfare and good government of Tasmania, it was vested with full plenary powers of legislation and it was not for the court to prescribe policy or seek to give effect to any views or opinions on policy. The position in this regard, the court maintained, was that the issue did not turn on the justice or injustice of the law in question. On this point, the court adopted the views of Justice Fullagar in Communist Party that ‘It should be observed at this stage that nothing depends on the justice or injustice of the law in question. If the language of an Act of Parliament is clear, its merits and demerits are alike beside the point. It is the law, and that is all.’202 Fundamental human rights Australia remains a jurisdiction without a substantive Charter or Bill of Rights in the Commonwealth Constitution, making it an ‘outlier in modern constitutional systems’.203 In recent times, the Australia Capital Territory broke with the tradition of relying on common law principles for protection against violations of human rights and enacted its Human Rights Act 2004.204 This is modelled on the UK’s Human Rights Act 1998.205 The state of Victoria followed suit two years later with the passing of its Charter of Human Rights and Responsibilities 2006.206 The federal jurisdiction – the Commonwealth – has remained without one. It has been suggested that a combination of factors converged to obviate the need or desire to incorporate human rights into the Commonwealth Constitution (or any of the state constitutions for that matter).207 These factors include the background of the founding fathers in politics, which informed their ‘pragmatic’208 turn of mind in constitution-making with a preference to ‘achieve hard political goals’.209 They were not ‘leisured men who took time to consider philosophy, let alone write any of their own’.210 There was also the fact that the period was devoid of the revolutionary fervour that was present during the making of the older US Constitution. Rather, the United Kingdom was at its most powerful with Australian colonies reflecting some of that prosperity and keen to establish a government with the main objective of promoting trade rather than upholding or promoting human rights.211 To these, one may usefully add three other points. First is the fact that the horrors of the First and Second World Wars were decades away; with the resultant impetus to take rights seriously. The second point is that as political pragmatists, the founding fathers must have had at least a reasonable inkling of what a constitutional Bill of Human Rights would portend for Aboriginal Australians. In this regard, it is not surprising that there is an emphasis on Aboriginal peoples’ rights in the ACT Human Rights Act.212 The third reason that may be hazarded for the lacklustre attitude of Australian founding fathers to constitutionalising human rights concerns the sources of its political system. It is a fact that not just the political system of the United States influenced the making of the Commonwealth Constitution, but also importantly the constitutional arrangements of the United Kingdom and even, to a much lesser extent, Canada, both of which had no Bill of Human Rights at the time.

Peace, order and good government in Australia 113 As Chief Justice French recently stated, it is reasonable to assume that a ‘variety of reasons’ account for the non-inclusion of a Bill of Rights in Australia’s Constitution.213 Some, his Honour noted, are due to a desire to retain the ability to discriminate against certain racial groups while others reflect ‘a loftier vision of the nascent Australian constitutionalism’.214 But he went on to caution that ‘Hypotheses, however plausible, more than 100 years after the event, are unlikely to yield a single reliable explanation’.215 Whatever reasons may have informed the attitude of the founding fathers in this regard, the absence of a Bill of Rights in the Australian system has had ‘an enormous impact on the direction of Australian constitutional law’.216 One of the ways this manifests is in the debate on whether rights do or should constitute a limit to parliamentary supremacy. In an age of heightened rights consciousness, it is to be expected that concerns on the near-absence of human rights provisions in the constitution of a liberal democratic country engender more than passing concern.217 Surely, the protection of fundamental rights has assumed an important position in governance. Legislation plays a key role in this. One important area where the application of the POGG clause has raised deep concern is when it can be said to come against fundamental rights. Put in another way, what is the essence of including ‘peace, welfare and good government’ in conferring legislative power if the phrase does not operate to constrain plenary power?218 In this regard, despite the generally settled position of parliamentary sovereignty in Australia, there have been challenges to the assumed plenary powers of Parliament to make law. Christopher John Wake and Djiniyini Gondara v Northern Territory of Australia and another219 is an example of how moral issues and fundamental rights can be called in to challenge the doctrine of parliamentary supremacy. Before the Supreme Court of the Northern Territory the plaintiffs challenged the procedural and substantive validity of the Rights of the Terminally Ill Act (as amended), which was passed by the Northern Territory legislature in 1995. The legislation is unique in Australia in that it addresses euthanasia. It establishes a regulatory regime for the intentional termination of human life in stipulated circumstances. In doing so, it removes all criminal, civil and professional sanctions otherwise applicable to a medical practitioner who intentionally terminates a patient’s life or aids a patient to commit suicide in accordance with stipulated procedures, including a ‘notfor-profit’ requirement. In doing this, the Act institutionalises intentional killing, which would otherwise be murder, and aiding suicide, which would otherwise be a crime. The plaintiff argued that the law was invalid because it had procedural defects. More relevant to the discussion here, the plaintiff contended that the legislation was ultra vires for being in violation of the fundamental right to life. The basis of this second argument was that the Northern Territory’s legislative power was subject to a fundamental principle or value underlying the common law, the Australian Constitution and the Self-Government Act, that there is an inalienable right to life. It was submitted that the Act violated that inalienable right and was therefore invalid. Even more relevant to this discussion, it was further submitted that the POGG power conferred on the Northern Territory legislature in section 6 of the

114  Colonial and Post-Colonial Constitutionalism in the Commonwealth Self-Government Act should be read down so as not to empower the making of laws which allow the abolition of the suggested fundamental right without more specific words, particularly bearing in mind that the Northern Territory has not yet achieved complete self-government. In dismissing the case for the plaintiff, Chief Justice Martin and Justice Angel held that the POGG clause plainly admitted of the power to make the challenged legislation and it did not matter that the Northern Territory was not yet a state. The law could not be struck down either because of its novelty or because it allowed the territory’s legislature or executive to do something which ‘no other legislature in the world has so far found fit to permit, or because it abrogates some fundamental human right’. Their Honours went on to assert that the power of disallowance conferred on the Governor-General of the Commonwealth of Australia ‘suggest that these are matters which are to be determined by political and not legal resolution’. Importantly, the two Justices were ready to concede that the situation of Australia may be distinguished from a jurisdiction with a constitutionally enshrined Bill of Rights, thereby implying a possible curb on the plenary powers of the legislature to make laws which may be considered immoral or in violation of fundamental rights.220 However, their Honours refrained from commenting further on the implications. They also shied away from commenting on whether the Act infringes any fundamental right, only acknowledging that the essence of the issue involved a question that is ‘ethical, moral or political’; so, not a matter for the courts. On his part, Justice Angel held the law invalid on the basis of a procedural defect. It had not been lawfully assented to and so could not pass into law. His Honour stated that in view of this, it was not necessary to record a view on whether the law was within the powers of the legislature.221 A challenge to legislative competence based at least implicitly on fundamental rights from the perspective of ‘peace, order and good government’ was also in issue in the earlier Northern Territory case,222 Albert Namatjira v Gordon Edgar Raabe (‘Namatjira’).223 Namatjira is a famous case in Australian legal history concerning issues of assimilation and prohibition of Aboriginal drinking.224 The case concerned legislation ostensibly made under the Northern Territory (Administration) Act 1910. The Act established a legislative council in the territory which was vested, by virtue of section 4(U), with the power to make ordinances for the POGG of the territory ‘subject to assent by the Administrator or the pleasure of the Governor-General’ of the Commonwealth of Australia. The challenged legislation, the Welfare Ordinance 1953–1955, provided that the territory’s Administrator could declare a person a ward under certain conditions. Section 14 of the Welfare Ordinance provided that subject to the provisions of the section the Administrator may, by notice in the Gazette, declare a person to be a ward if that person, by reason of (a) his manner of living, (b) his inability, without assistance, adequately to manage his own affairs, (c) his standard of social habit and behaviour and (d) his personal associations, stands in need of such special care or assistance as is provided by the ordinance. Pursuant to this law, the Administrator declared all Aborigines wards excluding just six persons,

Peace, order and good government in Australia 115 one of whom was Albert Namatjira.225 The declaration had various restrictive implications on certain fundamental rights of such persons. It restricted their rights of movement, association, residence, cohabitation and marriage. One of the implications of the declaration was also that it was an offence to sell or supply alcohol to a ward.226 The plaintiff was convicted for supplying alcohol to his cousin, Henoch Raberaba, who was a ward contrary to section 141 of the Licensing Ordinance 1939–1957, and he was sentenced to six months in prison. In appealing his conviction to the Supreme Court of the Northern Territory, he challenged the validity of the legislation on, among other grounds, that it was not for the POGG of the territory.227 Also, the declaration of Raberaba was invalid because it was done through a block determination which involved 15,211 people rather than a distinct consideration of, or inquiry into, his personal circumstances.228 The plaintiff furnished two examples of laws that would or should be outside the ambit of the legislative powers of the legislative council: a law for the periodical sacrifice of human beings and a law for the enslavement of a part of the population of the territory. The crux of the case for the plaintiff was that: any law which interfered drastically with the liberty and property and status of a substantial part of the inhabitants of the Territory (to such an extent that the feelings of all decent people were outraged) could not be a law for the peace, order and good government of the Territory … the Welfare Ordinance did transgress beyond what was authorised by the words ‘peace, order and good government’ so defined.229 The court rejected these arguments. Justice Kriewaldt ‘could not accept it to be the law that the legislative power of the Legislative Council is fettered by a rule of law that only wise legislation could be enacted by the Legislative Council’.230 In firmly rejecting as untenable any suggestion that the POGG power of the ­legislative council could be limited for any reason, Justice Kriewaldt stated that: There is no limitation on the plenitude of power possessed by the Legislative Council. If the members of the Legislative Council in their collective wisdom, decide that the proposed law is a desirable law to be enacted, then that law must be taken by the Courts and the people to be a law for the peace, order and good government of the Territory.231 The only safeguard the community could rely on was the fact that the Northern Territory ‘is a civilised community’ and it ‘is inconceivable’ that members of its legislative council would vote for such legislation.232 However, the court reduced the sentence from six to three months because of the circumstances of the plaintiff. The decision was recently hailed as being a proper recognition of the separation of powers and the proper role of the judiciary.233 Namatjira was subsequently appealed to the High Court in Namatjira v Raabe (‘Namatjira No 2’).234 However, the appeal in Namatjira No 2 did not include the

116  Colonial and Post-Colonial Constitutionalism in the Commonwealth constitutional challenge that the Welfare Act was ultra vires the Northern Territory Parliament and could not be valid under the POGG power. The appeal was dismissed, rejecting the claims that the facts did not disclose the incidence of supply of alcohol and that the Administrator ought to adopt an individual inquiry mechanism to make determinations on who is to be declared a ward. The case for further reduction of the sentence was also rejected.235 The most notable judicial pronouncement in the Australian jurisdiction on the view that fundamental rights should operate to limit the scope of the ‘peace, welfare [order] and good government’ power is that of Chief Justice Street of the Supreme Court of New South Wales in New South Wales BLF. ‘The words by their very terms’, Chief Justice Street stated, ‘confine the powers conferred to “peace welfare and good government” of the body politic in respect of which the legislature is being established.’236 After conceding that standing alone, notions of fundamental rights could not be advanced to limit parliamentary supremacy, a combination of such notions with peace, welfare and good government do enable the courts to protect society from tyrannous exercise of power. Chief Justice Street stated that he preferred: to look to the constitutional constraints of ‘peace, welfare, and good government’ as the source of power in the courts to exercise an ultimate authority to protect our parliamentary democracy, not only against tyrannous excesses on the part of a legislature that may have fallen under extremist control, but also in a general sense as limiting the power of Parliament.237 Consequently, laws which were ‘inimical to, or which did not serve the peace, welfare and good government of our parliamentary democracy … will be struck down by the courts’.238 This position has been rejected by the High Court but the merits of Chief Justice Street’s views will be further discussed later in this book.239 One of the critical areas in which the POGG clause in the Commonwealth Constitution has come up for determination is in the sphere of fiscal measures, which is not surprising in the context of contested financial powers in a federation. Fiscal measures Legislation relating to taxation especially remains a constant source of friction between the different levels of government. Australia, not surprisingly, has experienced several instances of such contestations. In Allders International Pty Ltd v Commissioner of State Revenue,240 stamp duties with serious potential implications for state revenue (about $800,000) were in issue. The appellant, a private corporation, had been granted a lease to build a shop in part of an estate which had been acquired for the construction of Tullamarine Airport in Melbourne, Victoria. The acquisition was done under the auspices of the Federal Airports Corporation (FAC). In exercise of its statutory powers, the FAC granted a lease to the appellant for a shop at Tullamarine Airport to conduct the business of a duty-free and

Peace, order and good government in Australia 117 sales tax free concession. The instrument of lease was duly executed. Pursuant to section 32 of the Stamps Act,241 Allders required the Commissioner of State Revenue as Comptroller of Stamps of Victoria to express an opinion as to whether the instrument of lease was chargeable with duty and, if so, with what amount. In order to obtain that opinion, the solicitors for Allders lodged the executed a lease with the Commissioner. The Commissioner expressed the opinion that the instrument of lease was dutiable and that duty should be assessed ad valorem on the rent calculated and paid in accordance with section 83A of the Stamps Act. Section 83A applies to a lease for a definite term of not less than 12 months where the rent cannot be ascertained at the time of execution of the lease. The calculation is based on an estimate and is re-calculated on annual re-estimates of the rent during the term of the lease. Allders claimed a declaration that the stamp duty was invalid by reason of section 52(i) of the Australian Constitution, which provides that Parliament shall, subject to the Australian Constitution, ‘have exclusive power to make laws for the peace, order, and good government of the Commonwealth with respect to the seat of government of the Commonwealth, and all places acquired by the Commonwealth for public purposes’.242 The appellant, supported by the Commonwealth, argued that the legislation was relevantly a law with respect to instruments which create an interest in land and so, in the circumstances, inevitably was a law with respect to Commonwealth places. The respondent, who was supported by the states of New South Wales, South Australia and Western Australia (which had intervened in view of practical implications for their potential revenues), submitted that the relevant provisions of the Stamps Act, properly understood, constituted a law with respect to stamp duty on instruments, not a law with respect to ‘Commonwealth places’. The question in issue was whether stamp duty under state legislation applied to an instrument of lease executed in respect of part of a federal airport intended for use as a duty-free store. This translated into whether the impugned law was one with respect to a Commonwealth place. In other words, did the law in issue have as its subject matter a Commonwealth place? The trial court, per Justice Harper, had answered the question in the negative and dismissed the claim. An appeal to the Court of Appeal of the Supreme Court of Victoria was ordered removed to the High Court. In the High Court, Brennan CJ, in the leading judgment, held that the lease formed part of a ‘place acquired by the Commonwealth’ for a public purpose within the meaning of those words in section 52(i) of the Constitution. Thus the law in issue was one that had a Commonwealth place as its subject matter on the facts. This is because ‘the power conferred by Section 52 (i) is not a power to make laws for “the peace, order, and good government” of the seat of government and of Commonwealth places: it is power to make laws “for the peace, order, and good government of the Commonwealth with respect to” the seat of government and Commonwealth places. It is a plenary power with respect to a specified subject.’ Therefore, the application of any state law such as the Stamp Duties Act (of New South Wales in issue here) to any act, matter or thing that occurs or exists in a Commonwealth place is excluded and ultra vires state legislative powers. This

118  Colonial and Post-Colonial Constitutionalism in the Commonwealth is because it would undermine the exclusivity of Commonwealth powers to make laws for POGG ‘mandated’ by section 52. Justices Dawson and Toohey dissented. They held that that it would be wrong to regard stamp duty upon the lease in question as a tax upon property in a Commonwealth place. According to Justice Dawson, notwithstanding the acquisition by the Commonwealth of a place within a state for public purposes, it remains part and parcel of the state.243 Justice Toohey held that the connection of those provisions of the Stamps Act which impose duty upon an instrument of lease with the Melbourne (Tullamarine) Airport is neither direct nor substantial. They do not regulate conduct in or in relation to the airport nor do they prohibit activities within the airport or control the performance of any such activities. ‘They constitute in point of character a law on the topic of stamp duty on instruments within the taxation powers of the States.’ Justices McHugh, Gummow and Kirby in their concurring decision clarified that whereas the Stamps Act is a law with respect to instruments, for the purposes of section 52(i) of the Constitution it remains a law with respect to a Commonwealth place. This is because its application affects the place in a real and tangible way since, among other things, it affects the rent which may be charged on such a place.

Conclusion The Commonwealth has an ‘enumerated’ Constitution in which powers to legislate for POGG are allocated to the federal government. In a way, this is similar to the situation in Canada. However, the style of enumeration in Australia is markedly different from that of Canada. In Australia, the states also have power to for POGG but this is not contained in the Australian Constitution but that of the states, so the powers of the states are not ‘enumerated’. As we have seen in the case of Canada, the POGG clause in the BNA Act 1867 is the introductory clause of a constitutional division of legislative powers between the centre and the provinces. The subject heads of power of each level are set out in a manner that constitutes the POGG clause as a residual power of the centre. In Canada, the power is designed as a centralising measure, even if this purpose was largely frustrated for a long time by the judicial preferences of the Judicial Committee of the JCPC. In Australia’s Commonwealth Constitution, only the federal subject heads of power are set out and the POGG clause is provided for specifically as applicable to those heads. Each state or territory has a constitution with actual or deemed provisions to make laws for ‘peace, order and good government’ over their territories. As a consequence, the emphasis on the fact of enumeration vis-à-vis the application of the POGG clause is pronounced in Australia. This is due to the conception in Australian constitutionalism that the POGG power in the Commonwealth Constitution is a limiting procedural (as against substantive) factor on federal powers. The position in Australia remains that the plenary powers conferred by the POGG clause remain relatively unfettered. The Commonwealth, the states as well as the territories must act within the constitutional limits despite the absence

Peace, order and good government in Australia 119 of a constitutional Bill of Rights in the Canadian, Irish or even German sense. However, the possibility that any form of restraint based on considerations of some liberal democratic values, alluded to without further comment in Union Steamship, was unambiguously ruled out in the more recent decision in Durham Holdings Pty Ltd v News South Wales (‘Durham’).244 In Durham, the High Court refused special leave to hear an appeal which sought to argue that the right to just or adequate compensation is so ‘deeply rooted’ in the common law ‘as to operate as a restraint on the legislative power of the New South Wales Parliament’.245 In this way, the High Court reaffirmed the unfettered powers of the Parliament to pass legislation even where, as a matter of fact or social policy, the particular law could not be said to be directed at or, indeed, is evidently contrary to the purpose of securing the POGG of the territory.246 The peace, order [welfare], and good government clause has had a largely uncontested meaning in the Australian jurisdiction. A view on how it should be judicially interpreted and one perhaps informed by a naturalist legal perspective was offered by Chief Justice Street of the Supreme Court of New South Wales in New South Wales BLF. Chief Justice Street suggested that the words had a limiting effect on the nature of legislation that the New South Wales Parliament could make. To hold otherwise would amount to ‘glossing … important words out of the Constitution Act and depriving them of their ordinary meaning and operation’.247 This opinion of the appropriate interpretation of the peace, order [welfare] and good government clause, it is argued, is not simply plausible, but ought, in line with the ordinary wording of the clause, to be considered a sound one and will be further discussed later in this book.248 The imperialist origin of the clause, however, renders this definition a misnomer in Commonwealth constitutional jurisprudence. Thus, for instance, the suggestion of Chief Justice Street that the words might be interpreted as limiting the sovereign legislative powers of Parliament has been rejected by the High Court of Australia. As Justice Heydon noted, most of the ‘statements’ relied upon by the federal government in Pape were dicta.249 Until very recently, the strict legalism approach to judicial interpretation appears to have contributed to the restrictive approach to the construction of the Commonwealth Parliament’s POGG power in section 51 of the Australian Constitution. The slim majority decision of 4–3 in Pape suggests recognition of an expanded scope for the application of the POGG power of the Commonwealth Parliament (along with its powers under section 61 of the Constitution) based on the notion of ‘nationhood’ or ‘national concern’. Given the contested nature of the extent of federal vis-à-vis state powers in Australia (as with virtually all federations) and current perceptions that Australia has become unduly centralist,250 it may be that the decision will not be sustained in the future. This is particularly possible in light of the fact that only three of the four Justices who gave judgment to the plaintiff proffered the nationhood argument in support of the decision.251 The decision in Williams strongly suggests a preference of the High Court for a restricted purview of the implied nationhood power based on POGG.252

120  Colonial and Post-Colonial Constitutionalism in the Commonwealth

Notes 1 An Act to Constitute the Commonwealth of Australia 63 & 64 Vict., c.2, 9 July 1900, as amended. 2 See also art 1, s 24 of the New South Wales Constitution Act 1855 (UK) (18 & 19 Vict., c.54) and, for the other states, see Constitution of Queensland 2001, s 8, Constitution Act 1867 (QLD), s 2 and Constitution Act 1934 (SA), s 5. 3 Constitution Act 1889 (WA), s 2. 4 10 Geo. IV No 63. 5 The Act, with its various amendments, was repealed by the Australia Constitutions Act 1850, discussed below. 6 Northern Territory (Self-Government) Act, No [58] of 1978, s 6 and, previous to it, see the Northern Territory (Administration) Act 1947 (Cth). 7 Constitution Act (Vic) 1975, s 16. 8 Gerard Carney, The Constitutional Systems of the Australian States and Territories (Cambridge University Press, Melbourne, 2006), 104. 9 Tony Blackshield and George Williams, Blackshield and Williams – Australian Constitutional Law and Theory (Federation Press, Sydney, 2010), 432. 10 (1988) 166 CLR 1. 11 Union Steamship (n 10), [14]. 12 (1997) 190 CLR 513. 13 Newcrest Mining (WA) Ltd v Commonwealth (n 12),553. 14 [2002] 211 CLR 1, with Justices Gaudron, Gummow and Haynes concurring, see paras 10 and 46 of the judgment. 15 Carney (n 8), 1–2; Cheryl Saunders, ‘Commonwealth of Australia’, in John Kincaid and G. Allan Tarr, Constitutional Origins, Structure and Change in Federal Countries (McGill University Press, Montreal and Kingston, 2005), 13, 13–15. 16 Jeffrey Goldsworthy, ‘The Case for Originalism’, in Grant Huscroft and Bradley W Miller, The Challenge of Originalism (Cambridge University Press, New York, 2011), 42, 43. 17 Bradley Selway and John M Williams, ‘The High Court and Australian Federalism’ (2005) 35(3) Publius 467, 468. 18 Carney (n 8), 38. 19 Selway and Williams (n 17), 468. 20 Stephen Gageler, ‘Foundations of Australian Federalism and the Role of Judicial Review’ (1987) 17(3) Federal Law Review 162, 171. The author was appointed a Justice of the High Court of Australia in 2012. Thanks to Professor Prue Vines (University of New South Wales) for bringing this to my attention. 21 Official Report of the National Australasian Convention Debates, Adelaide, March 22–May 5, 1897 (1897), 17, quoted in Gageler (n 20), 17. 22 Carney (n 8), 64–65. 23 Carney (n 8), 64 (emphasis in original). 24 (1996) 186 CLR 140. 25 McGinty (n 24), 171–173. See also the views expressed by Chief Justice Barwick in New South Wales v The Commonwealth (1975) 135 CLR 337 at 372; Victoria v The Commonwealth (1971) 122 CLR 353 at 371–372; China Ocean Shipping Co v South Australia (1979) 145 at 182. 26 (1920) 28 CLR 106 27 McCawley (n 26), 125. 28 Carney (n 8), 106. 29 (1947) 74 CLR 31 at 66, also referred to as the State Banking case. 30 Jonathan Pincus, ‘Productive Reform in a Federal System’, in Productive Reform in a Federal System – Roundtable Proceedings (Productivity Commission, Canberra, 2006) 29; available at http://www.pc.gov.au/ (accessed 1 August 2013).

Peace, order and good government in Australia 121 31 (1981) 151 CLR 170. 32 Toohey (n 31), 279. 33 (1992–93) 177 CLR 248. 34 Capital Duplicators (n 33), 281–282. 35 Chief Justice Robert French, ‘The Northern Territory – A Celebration of Constitutional History’ (Centenary of the Northern Territory Supreme Court Kriewaldt Lecture, 2011); available at http://www.hcourt.gov.au/assets/publica tions/speeches/current–justices/frenchcj/frenchcj23may11.pdf (accessed 7August 2013), 22. 36 Chief Justice Robert French (n 35). 37 Saunders (n 15), 13. 38 Saunders (n 15), 13. 39 Saunders (n 15), 13. 40 Kathleen Foley, ‘Australian Judicial Review’ (2007) 6 Washington University Global Studies Law Review 281, 283–284. 41 Selway and Williams (n 17), 468– 469 42 The Hon Sir Anthony Mason, ‘The High Court of Australia: A Personal Impression of its First 100 Years’ (2003) 27 Melbourne Law Review 864, 866; and Foley (n 40), 289. 43 Foley (n 40), 281, 284 44 Gageler (n 20), 172. 45 Gageler (n 20), 164–168. 46 This derives in part from apprehensions of the Canadian experience with the JCPC. See Ch 2. 47 Jeffrey Goldsworthy, ‘Australia: Devotion to Legalism’, in Jeffrey Goldsworthy (ed.), Interpreting Constitutions (Oxford University Press, Oxford, 2007), 106, 110–111. 48 See Ch 6; however, unlike the Australian arrangement, the Nigerian Constitution, like the Canadian arrangement, contains two legislative lists – one each for the central and state governments. 49 Gageler (n 20), 172. 50 Foley (n 40), 285. 51 Goldsworthy (n 47), 106, 110. 52 Goldsworthy (n 47), 110. 53 Gageler (n 20), 174. 54 (1951) 83 CLR 1. 55 George Winterton, ‘The Communist Party Case’, in HP Lee and George Winterton (eds), Australian Constitutional Landmarks (Cambridge University Press, Cambridge, 2003), 108–144; and Foley (n 40), 302. 56 Communist Party (n 54), 262–263. 57 (1956) 94 CLR 254. 58 Boilermakers (n 57), 268, per Chief Justice Dixon; see also 276. 59 Boilermakers (n 57), 267–268. 60 (1975) 134 CLR 338. 61 Australian Assistance Plan (n 60), 00. 62 Goldsworthy (n 47), 106; Michael McHugh, ‘The Constitutional Jurisprudence of the High Court’ (2008) 30(1) Sydney Law Review 5; Brad Selway, ‘Methodologies of Constitutional Interpretation in the High Court of Australia’ (2003) 14 Public Law Review 234, 250; Leslie Zines, ‘Legalism, Realism and Judicial Rhetoric in Constitutional Law’ (2002) 5 Constitutional Law and Policy Review 21, 23; Gageler (n 20), 175–178. For the view that the era of Chief Justice Mason witnessed an activist era and a retreat from legalism but which has now been reversed, see Foley (n 40), 304–314. 63 Owen Dixon, ‘Address upon Taking the Oath of Office in Sydney as Chief Justice of

122  Colonial and Post-Colonial Constitutionalism in the Commonwealth the High Court of Australia on 21st April, 1952’, in Woinarski J (ed.), Jesting Pilate and Other Papers and Addresses (Law Book Co, Melbourne, 1965), 247. 64 Foley (n 40), 292. 65 Foley (n 40), 292. 66 Foley (n 40), 292. 67 (2003) 215 CLR 185. 68 Austin (n 67), [210]. 69 Austin (n 67), [210]. 70 Austin (n 67), [210]. 71 Austin (n 67), [211]. 72 For a discussion of the Mason Court (1987–1995), see the contributions in Cheryl Saunders (ed.), Courts of Final Jurisdiction: The Mason Court in Australia (Federation Press Pty Ltd, Sydney, 1996); and for the Dixon, Mason as well as Gleeson Courts, see Rachael Gray, The Constitutional Jurisprudence and Judicial Method of the High Court of Australia: the Dixon, Mason and Gleeson Eras (Presidian Legal Publications, Adelaide, 2008). 73 See Ch 1. 74 4 Geo. IV, c.96. 75 Section 24. 76 Van Diemen’s Land (Tasmania) was then part of New South Wales, just as was what later came to be Queensland. 77 Section 29. 78 Section 30. 79 Section 31 80 Carney (n 8), 39. 81 Carney (n 8), 39–40. 82 Selway and Williams (n 17), 468; Carney (n 8), 39. 83 See the Tasmania Constitution Act 1934 (25 Geo. V., No 94). It is not clear how this came about given the fact that the creation of an elected Parliament for Van Diemen’s Land (later Tasmania) in line with the Australia Constitutions Act 1850 (13 & 14 Vict., c.59) was characteristically premised on the need to ensure ‘peace, welfare and good government’ of the settlement. See the preamble to the Constitution Act 1855 (18 Vict., c.17), which was repealed by the Tasmania Constitution Act 1934. See also the Australian Courts Act 1828 (UK), which established Supreme Courts in New South Wales as well as Van Diemen’s Land. 84 Section 51; this was to be done under letters patent granted by the Queen. 85 For a discussion of their constitutional evolution, see Carney (n 8), 34–56. 86 Selway and Williams (n 17), 468. 87 Foley (n 40), 281, 282–283; and Gageler (n 20), 167–168 and 171–172. 88 (1828) Sel Cas (Dowling) 523; 211; Dowling,  Select Cases, Vol 1, Archives Office of NSW, 2/3461, reported in Decisions of the Superior Courts of New South Wales, 1788–1899; available at http://www.law.mq.edu.au/research/colonial_case_law/nsw/cases/ case_index/1828/nash_v_purcell/#foot(n1a%C2%BF (accessed 7 August 2013). 89 Nash (n 88), 236–237. 90 It only trails the four most famous cases on the POGG power. See Ch 1 for the discussion of the ‘Famous Four’. 91 [1885] UKPC 5. 92 (1887) LR 10 AC 675 (PC). 93 (1883) LR 9 AC 117 (PC). 94 It is striking how these three cases constitute the authorities which the majority in R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 2) (‘Bancoult No 2’) [2008] UKHL 61, [2009] 1 AC 453 based its interpretation of POGG. See Ch 5.

Peace, order and good government in Australia 123 95 Robinson v Western Australian Museum (‘Robinson’) (1977) 138 CLR 283 at 304, per Justice Gibbs. 96 Robinson (n 95), 304, per Justice Gibbs; and see Christopher D Gilbert, ‘ExtraTerritorial State Laws and the Australia Acts’ (1987) 17 Federal Law Review 25, 26. 97 Robinson (n 95), 304, per Justice Gibbs. 98 Goldsworthy (n 47), 106 and 123. 99 (1960) 105 CLR 214. 100 Clayton (n 99), 250; Ann Twomey, Constitution of New South Wales (The Federation Press, Sydney, 2004), 170–171. 101 Clayton (n 99), 250. 102 Nash (n 88), 236–237. 103 (1937) 56 CLR 337. 104 Broken Hill South Ltd v Commissioner of Taxation (n 103), 375. 105 Broken Hill South Ltd v Commissioner of Taxation (n 103), 375. 106 (1976) 135 CLR 507. 107 Robinson (n 95). 108 Robinson (n 95), 304. 109 Pearce (n 106), 519; and Robinson (n 95), 304. 110 Pearce (n 106), 518. 111 Pearce (n 106), 519. 112 Pearce (n 106), 519. 113 Pearce (n 106), 518. 114 Mobil Oil Australia Pty Ltd v Victoria (2002) 211 CLR 1. 115 Pearce (n 106), 518. 116 (1971) 122 CLR 353. 117 Payroll Tax (n 116), 395–396. 118 Payroll Tax (n 116), 395–396. 119 Robinson (n 95), 295. 120 Robinson (n 95), 343, per Justice Murphy. 121 (1975) 135 CLR 337. 122 Seas and Submerged Land (n 121), 361. His Honour held (at 367–368) that they never did. His Lordship was only reaffirming the position he had taken in the earlier cases of Bonser v La Macchia (1969) 122 CLR 177 and Reg v Bull (1974) 131 CLR 203 to the same effect. 123 See also the concurring decision of Justice Jacobs in Seas and Submerged Lands (n 121), 495, who similarly approved of Chief Justice Barwick’s decision on the point in Bonser v La Macchia (n 122) and Reg v Bull (n 122) . 124 Seas and Submerged Lands (n 121), 362. 125 Seas and Submerged Lands (n 121), 362, but see the qualified support of Justice Mason at 475 suggesting that states can still exercise some control over territorial waters under their POGG powers subject to the paramountcy principle in favour of the Commonwealth Parliament where there is a conflict. 126 Robinson (n 95). 127 However, their decisions, as will be seen below, took three different courses. 128 Robinson (n 95), 294. 129 Robinson (n 95), 294. 130 Robinson (n 95), 345. 131 Robinson (n 95), 304–305. Justice Gibbs thereby treated the state as a sovereign in international waters. 132 Robinson (n 95), 331. 133 Robinson (n 95), 331. 134 Robinson (n 95), 331. 135 Robinson (n 95), 326.

124  Colonial and Post-Colonial Constitutionalism in the Commonwealth 136 Robinson (n 95), 340–343. 137 (2006) HCA 25. 138 XYZ v Commonwealth of Australia (n 137), [9]. 139 XYZ v Commonwealth of Australia (n 137), [4]. 140 XYZ v Commonwealth of Australia (n 137), [128]–[129]. 141 XYZ v Commonwealth of Australia (n 137), [18]. 142 XYZ v Commonwealth of Australia (n 137), [92]. 143 The most obvious but inevitable and inconsequential difference in the two is the preambles to each reflecting the difference of the role/nature of the respective Parliaments of Westminster and the Commonwealth of Australia; otherwise, all the sections are identically worded. See HP Lee, ‘The Australia Act 1986 – Some Legal Conundrums’ (1988) 14 Monash University Law Review 297, 298–299; and Christopher D Gilbert, ‘Section 15 of the Australia Acts: Constitutional Change by the Back Door’ (1989) 5 QLD University of Technology Law Journal 55, 55–56. 144 Australia Act 1986 (UK) and Australia Act 1986 (Commonwealth) Act No 142 1985, respectively. See Gilbert (n 96), 41; Gilbert (n 143), 56. 145 Gilbert (n 96), 30. 146 Gilbert (n 96), 30–44; and Justice JD Hill, ‘Constitutional Power and Extraterritorial Enforcement’ (1996) 19(1) University of New South Wales Law Journal 45, 54–57. 147 Twomey (n 100), 42–43; Leslie Zines, The High Court and the Constitution (The Federation Press, Sydney, 2008), 406; Ian D Killey, ‘Peace, Order and Good Government – A Limitation on Legislative Competence’ (1989) 17 Melbourne University Law Review 24; and Mark Moshinsky, ‘State Extra-territorial Legislation – Further Developments’ (1990) 64 Australian Law Journal 42. The point, as Zines states, remains debatable. 148 Twomey (n 100), 56. 149 (Cth). 150 Melbourne Corporation (n 29), 47 to which the court made reference. 151 To which the court made reference. 152 (1948) 76 CLR 1. 153 Bank Nationalisation (n 152), 297. 154 Bank Nationalisation (n 152), 297. 155 Bank Nationalisation (n 152), 362. 156 Bank Nationalisation (n 152), 362. 157 Australian Assistance Plan (n 60), 362. 158 Australian Assistance Plan (n 60), 362. 159 Australian Assistance Plan (n 60), 362. 160 Australian Assistance Plan (n 60), 363. 161 Australian Assistance Plan (n 60), 369. 162 Andrew McLeod, ‘The Executive and Financial Powers of the Commonwealth: Pape v Commissioner of Taxation’ (2010) 32(1) Sydney Law Review 123, 123. 163 But see Anne Twomey, ‘Reforming Australia’s Federal System’ (2008) 36(1) Federal Law Review 57, 73–74. 164 Bank Nationalisation (n 152), 299. 165 Australian Assistance Plan (n 60), 362; see also The Commonwealth v Tasmania (‘Tasmanian Dam’) (1983) 158 CLR 1. 166 [2009] HCA 23. I am especially grateful to Professor Andrew Lynch (University of New South Wales) for drawing my attention to this case. 167 (No 2) 2009 (Cth). 168 See the other questions as outlined per Chief Justice French in Pape (n 166), [11]. 169 (1974) 131 CLR 477. 170 (1945) 71 CLR 237 at 266.. 171 (1988) 166 CLR 79. 172 Australia Assistance Plan (n 60), 397.

Peace, order and good government in Australia 125 173 Australia Assistance Plan (n 60), 397. 174 Pape (n 166), [229]. 175 Pape (n 166), [233]. 176 Pape (n 166), [235]. 177 Pape (n 166), [236]. 178 Pape (n 166), [242] (emphasis in original). 179 Pape (n 166), [243]. 180 Pape (n 166), [10] and [133]. 181 Pape (n 166), [364]. 182 Pape (n 166), [364]. 183 Pape (n 166), [364]. 184 Pape (n 166), [366]. 185 Pape (n 166), [487]. 186 Pape (n 166), [504]. 187 [2012] CA 23. I am grateful to Professor Andrew Lynch for drawing my attention to this case. 188 Shipra Chordia, Andrew Lynch and George Williams, ‘Williams v Commonwealth – Commonwealth Executive Power and Australian Federalism’ (2013) 37(1) Melbourne University Law Review (advance copy); available at http://papers.ssrn.com/sol3/ papers.cfm?abstract_id=2281080 (accessed 7 August 2013). 189 (1945) 71 CLR 237. 190 Including three of the ‘Famous Four’ cases discussed in Chs 1 and 2: Reg v Burah (1878) 3 App Cas 889; Hodge v The Queen (1883) 9 App Cas 117; Riel v The Queen (1885) 10 App Cas 675; and Powell v Apollo Candle (n 91), discussed above. 191 Union Steamship (n 10), [16]. 192 Union Steamship (n 10), [16]. 193 Union Steamship (n 10), [16]. 194 Union Steamship (n 10), [16]. See also Capital Duplicators (n 33). 195 (1991) 172 CLR 501. 196 War Crimes (n 195), para 7. See also Reg v Foster ex parte Eastern and Australian Steamship Co Ltd (1959) 103 CLR 256 at 306–308, per Windeyer J. 197 (1996) 189 CLR 51. 198 Union Steamship (n 10), [16]. 199 Richard D Lumb, The Constitutions of the Australian States (5th edn, University of Queensland Press, Brisbane, 1991). 200 [1997] TASSC 116. 201 (1986) 7 NSWLR 372, 382–385. 202 Communist Party (n 54), 262. 203 Foley (n 40), 285; Nick O’Neill, Simon Rice and Roger Douglas, Retreat from Injustice: Human Rights Law in Australia (2nd edn, The Federation Press, Sydney, 2004), 1; and Thomas Poole, ‘Bills of Rights in Australia’ (2004) Oxford Commonwealth Law Journal 197, 197–198. In 2011, the Commonwealth Parliament passed the Human Rights (Parliamentary Scrutiny) Act 2011 (No 186, 2011) which establishes a Parliamentary Committee to scrutinise bills for compatibility with specified international (and any other designated) human rights instruments. Section 7(a) of the Act provides that the function of the Committee is ‘to examine Bills for Acts, and legislative instruments, that come before either House of the Parliament for compatibility with human rights, and to report to both Houses of the Parliament on that issue’. 204 As amended. For a discussion of the background, rationale and process of making the ACT Human Rights Act 2004, see Poole (n 203). 205 Poole (n 203), 197 and 199–200. 206 Act No 43 of 2006, as amended. The governments of Tasmania and Western Australia commissioned public consultation processes into human rights protections

126  Colonial and Post-Colonial Constitutionalism in the Commonwealth in those states in 2006 and 2007, respectively, both of which recommended adoption of Human Rights Charters. While Tasmania appears to be progressing the proposal by embarking on further consultations, the government of Western Australia has not acted on the recommendation. See Gilbert and Tobin Centre for Public Law, ‘Charters of Human Rights in Australia: An Overview’; available at http://www. gtcentre.unsw.edu.au/node/3070 (accessed 7 August 2013). 207 Nicholas KF O’Neil, ‘Constitutional Human Rights in Australia’ (1987) 17 Federal Law Review 85, 85. 208 O’Neil (n 207), 85. 209 O’Neil (n 207), 85. 210 O’Neil (n 207), 85. 211 O’Neil (n 207), 85. 212 Poole (n 203), 209–211. 213 Chief Justice Robert French, ‘Protecting Human Rights without a Bill of Rights’ (2010); available at http://www.hcourt.gov.au/assets/publications/speeches/ current–justices/frenchcj/frenchcj26jan10.pdf (accessed 10 September 2012) 1, 10. 214 Chief Justice French (n 213). 215 Chief Justice French (n 213). 216 Foley (n 40), 285. 217 For a succinct discussion of the concerns and judicial response to it, see Carney (n 8), 108–113; see also George Williams, Human Rights under the Australian Constitution (2nd edn, Oxford University Press, 2002); Chief Justice French (n 213); and O’Neill et al. (n 203). 218 Carney (n 8), 112. 219 (1996) 109 NTR 1. 220 This is a moot point considering experience elsewhere in other parts of the Commonwealth, like Nigeria, with an enshrined Bill of Rights. Such Bills have not been decisive for preventing the passing and subsequent judicial validation of legislation violating fundamental rights behind the shield of ‘peace, order and good government’. However, the predilection of Nigeria’s military rulers (and their counterparts elsewhere in the Commonwealth, such as Fiji) to suspend the fundamental rights provisions of the Constitution while purporting to pass such legislation suggests the recognition of possible tension between the two, which is at least implied in the dictum in this case. 221 Despite abstaining from giving a final answer on the issue, Justice Angel made an extensive exploration of the question of the propriety of judges deciding moral questions and stated that it was appropriate for courts to consider moral questions as these were sometimes integral parts of law. 222 This is an important but relatively understated aspect of the case, but see Stephen Gray, ‘Slavery and Constitutional Validity: Rethinking Kruger and Bray’ (2008) 31(3) University of South Wales Law Journal 645, 660–662. 223 [1958] NTJ 608. 224 Heather Douglas, ‘Justice Martin Kriewaldt – Frontier Justice: Aboriginal People, Assimilation and Law in the 1950s’; available at http://www.law.uq.edu.au/justice– martin–kriewaldt (accessed 7 August 2013). 225 The plaintiff was a prominent artist who had been granted Australian citizenship (and so could not be so declared). He had in fact been previously listed and was only delisted and granted citizenship less than three years before this case. See Heather Douglas, ‘Namatjira, Citizenship and Prohibition’; available at http:// www.law.uq.edu.au/documents/kriewaldt/issues/alcohol–regulation/Namatjira– Citizenship–Prohibition.pdf (accessed 7 August 2013), 1, 9–10. For a succinct analysis of this important case, see the same article generally and Heather Douglas, ‘Justice Kriewaldt, Aboriginal Identity and the Criminal Law’ (2002) 26(4) Criminal Law Journal 204, 215–226.

Peace, order and good government in Australia 127 226 Ironically, these measures were ostensibly directed at ‘protecting’ Aboriginal people: see Douglas, ‘Namatjira, Citizenship and Prohibition’ (n 225), 5–6; Douglas, ‘Justice Kriewaldt, Aboriginal Identity and the Criminal Law’, 216–219; and Justice Kriewaldt in Namatjira (n 223), 618. 227 Namatjira (n 223), 617. 228 Namatjira (n 223), 617. 229 Namatjira (n 223), 617. 230 Namatjira (n 223), 617. 231 Namatjira (n 223), 617. 232 Namatjira (n 223), 616–617. 233 Chief Justice French (n 213), 19. 234 (1959) 100 CLR 664. 235 Namatjira No 2 (n 234), 668–670. 236 New South Wales BLF (n 201), 383. 237 New South Wales BLF (n 201), 387. 238 New South Wales BLF (n 201), 384. 239 See Ch 6. 240 (1996) 186 CLR 630. 241 1958 (Vic). 242 Emphasis added. 243 As will be seen later in the discussion on Nigeria, this accords with the views expressed by the majority of the Justices in the Nigerian case Attorney-General of Lagos State v Attorney General of the Federation and 35 others (‘Urban Planning’) (2003) 6 SC (Pt I) 24. One of the issues in the case was the planning and physical development powers of the states vis-à-vis the federal government on land acquired for public purposes in the states. 244 (2001) 205 CLR 399. 245 Durham (n 244), 409. 246 This goes directly to the same point made by Lord Halisbury in the JCPC in Riel v The Queen (1885) 10 App Cas 675 at 678 and approved by Lord Reid in Chenard and Co v Joachim Arissol (1949) AC 127 at 132, both being some of the ‘high authorities’ relied on by the High Court in Union Steamship (n 10). 247 New South Wales BLF (n 201), 385. 248 See Ch 6. 249 Pape (n 166), 502. 250 See, e.g. various essays in Part I of Gabrielle Appleby, Nicholas Aroney and Thomas John, The Future of Australian Federalism – Comparative and Interdisciplinary Perspectives (Cambridge University Press, Cambridge, 2012), 1–96. 251 Justices Gummow, Cennan and Bell. 252 Chordia, Lynch and Williams (n 188), 10–11.

4 Adventurers in power – federalism and peace, order and good government in Nigeria

The Nigerian context provides opportunity to investigate the deployment of the peace, order and good government (POGG) power to the cause of military authoritarianism and, later, civilian-led government in the process of democratisation. This chapter discusses the application and interpretation of POGG through a focus on the historical, political and constitutional experience of the clause in Nigeria. The discussion also engages the tensions in the constitutional applications of the power in a post-colonial, post-authoritarian context. Military rule in Nigeria followed on the heels of colonial rule and a short-lived period of popularly elected responsible government. For almost three decades, successive military regimes passed ‘enabling constitutional’ legislation in which the POGG power featured prominently. Such legislation was typically to oust or limit the jurisdiction of the courts to question military legislation. In the course of the political transition to civilian-led government, a number of socio-political contestations and tensions that had been bottled up by military repression were brought to the fore. The contestations, which have taken the form of inter-jurisdictional disputes between national and sub-national units, have sometimes severely challenged the survival of the country as a polity. From the perspective of political analysis, political elites sometimes adopt a consociational approach to resolve power contestations in societies, and in particular, divided ones. A core feature of consociation is the adoption of depoliticised approaches to political decision-making over majoritarian ones.1 This has featured prominently in the adoption by Nigerian political elite of the legal process with resultant judicialisation of governance in the political transition from authoritarianism. The approach has continued in the interaction of the political elite to date but it particularly dominated the first decade of the transition (19992009) to civilian-led government. An analysis of some of the litigation to resolve the ensuing jurisdictional claims between national and sub-national levels of government generated in the course of that period forms an important part of the discussion in this chapter. It indicates that there was prominent reference to the POGG power and judicial construction of the power in the context of the political transition. The discussion is set out as follows. The first part of this chapter provides an insight into the introduction of the POGG clause in Nigeria as well as the political

Adventurers in power 129 context of that introduction. The nature of judicial review in the Nigerian court system is central to the discussion of the POGG power and this is also briefly engaged in this part. The authoritarian dimension of the POGG power stemming from its imperial origins in the Nigerian experience is examined in the second part. This is followed by a focus on the transmutations of the POGG power in the context of the change to civilian-led government as it assumes an even more prominent place in Nigerian constitutionalism. The penultimate part critically evaluates the current state of the POGG jurisprudence in the Nigerian context and concludes that judicial interpretations of the jurisprudence has moved, even if only to a limited extent, in the direction of an objective approach.

Peace, order and good government in Nigeria – historical, political and constitutional context Historical and political context British colonial rule commenced in what is now Nigeria with the cession of Lagos to the British monarch in 1861, although the British, for some time previous to that, had been interfering in local politics of the people of the territory.2 The ­country – a federation with a central government and 36 states – gained independence from Britain in 1960. From early on in its contact with the British Empire, the POGG clause has played a significant part in the organisation of the country’s political and constitutional arrangements. The POGG clause made its debut in Nigerian constitutional and legislative history in 1872. The clause formed part of an Order in Council which was promulgated in 1872 inter alia to confer power on the British Consul over British subjects in the Niger Delta territories.3 In 1900, the Crown took on the jurisdiction to maintain ‘peace, order and good government’ for the Northern and Southern Protectorates (of Nigeria) through Orders in Council.4 Before that, the Crown had introduced the clause, again through proclamations and Orders in Council, in the colonial administration of constituent parts of what later became Nigeria. For instance, section 6 of the Northern Nigeria Order in Council 1899 provided in part that the High Commissioner may in the exercise of the powers and authorities conferred upon him through proclamation: provide for the administration of justice, the raising of revenue, and generally for the peace, order, and good government of Northern Nigeria, and of all persons therein, including the prohibition and punishment of acts tending to disturb the public peace. Following the amalgamation of the Northern and Southern Protectorates in 1914, the country was governed as a unitary state.5 This continued until the introduction of the McPherson Constitution of 1951 when a modified federal system was introduced6 and the country became a full-fledged federation under the 1954 Lyttleton Constitution.7 Each of the country’s colonial constitutions from 1914 to the

130  Colonial and Post-Colonial Constitutionalism in the Commonwealth Independence Constitution of 1960 as well as the post-colonial constitutions from 1960 to the current 1999 Constitution (‘the Constitution’), provide for ‘peace, order and good government of the country’.8 The 1960 Constitution (‘Independence Constitution’) and the 1963 Constitution (‘Republican Constitution’) provided for the conventional POGG powers by stating that: Parliament shall have power to make laws – (a) for the peace, order and good government of Nigeria (other than the Federal territory) or any part thereof with respect to any matter included in the Legislative Lists; and (b) for the peace, order and good government of the Federal territory with respect to any matter, whether or not it is included in the Legislative Lists. The regional constitutions had similar provisions for the regions. However, in addition to these provisions, the Independence Constitution and the Republican Constitution further expressly linked the POGG clause to the declaration of a state of emergency by the federal authorities. Sections 65(1) and 70(1) of the Independence and Republican Constitutions, respectively, provide that Parliament is empowered to make laws for the country or any part of it which is not covered by the legislative lists but it deems ‘necessary or expedient for the purpose of maintaining or securing peace, order and good government during any period of emergency’. Declarations of states of emergency in the Commonwealth have colonial pedigree and were frequently used as measures to check African nationalism and further the imperial design to hold on to economic and political power.9 Thus, this legacy of colonial rule set the stage for the subsequent abuse of the clause by successive military regimes for the better part of three decades in the period following closely on the country’s post-colonial experience. The military (as will be discussed below) appropriated POGG as a legal anchor for imposing authoritarian rule much to the detriment of socio-economic and ­political ­development in the country, from which it has failed to recover. The 1979 Constitution of the Federal Republic of Nigeria (‘1979 Constitution’), which ushered in the short-lived period of civilian-led government (aborted by a military coup on 31 December 1983), marked the departure of the country from the Westminster model to the ‘Washington Model’ of political and constitutional arrangements.10 Significantly, however, unlike the 1993 Constitution of South Africa, which similarly departed from a Westminster system of ‘responsible government’,11 the 1979 Constitution retained the POGG clause in delimiting the legislative competence of the federation and the states. This appears to have been due to the fact that, on the one hand, despite introducing very important changes to the structures of governance, the 1979 Constitution continued certain elements of the constitutional tradition of the Independence and Republican Constitutions and, on the other, it bore very clear imprimatur of the structures of power and approach to governance under military rule.12 It is also important to note that there is a consensus that the 1979 Constitution has continued to have a significant if not commanding influence on constitutional design in the country.

Adventurers in power 131 John Yakubu, not without reasonable justification, puts the case more strongly than most in stating that the 1999 Constitution is no more than an amendment of the 1979 Constitution.13 This may also account for the replication of the POGG powers in the short-lived 1989 Constitution of the Federal Republic of Nigeria and the current Constitution in the same sections as that of the 1979 Constitution. Section 4 of the 1979 and 1999 Constitutions set out the legislative powers of the National Assembly as well as the state assemblies. The National Assembly, by virtue of section 4(2), has the power to make laws for the POGG of the Federation or any part of the country on any matter included in the exclusive legislative list (‘federal POGG powers’). This power of legislation is to the exclusion of the state assemblies (section 4(3) of the Constitution). The state assemblies have similar powers under section 4(7) ‘to make laws for the peace, order and good government of the State or any part thereof’ (‘state POGG powers’) on any matter not included in the exclusive legislative list. Both tiers of government have powers to legislate on matters included in the concurrent legislative list. The Federation and the states have legislative competence on any other matter with respect to which they are expressly empowered to make laws in accordance with the provisions of the Constitution.14 However, the states have the residual powers of legislation by virtue of section 4(7)(a) of the Constitution.15 Further, section 11(3) of the 1979 and 1999 Constitutions confer power on the National Assembly to make laws for the peace, order and good government of the Federation or any part on matters not within the exclusive legislative list as may appear to it to be necessary or expedient for the defence of the country. Moreover, section 11(4) provides for any other period when a state assembly is unable to perform its functions by reason of the situation prevailing in that state. In such circumstances, the National Assembly may make such laws for the peace, order and good government of that state with respect to matters on which a state assembly may make laws as the former deems necessary or expedient until the latter is able to resume its functions. However, section 11(4) of the Constitution has the important proviso that the POGG powers of the National Assembly in this regard do not include the removal of the governor or the deputy governor of the state from office. The POGG powers conferred by section 4 of the Constitution are at the heart of the national and sub-national contestations in the post-authoritarian period in the country, as will be discussed later in this chapter. Section 11(3) and (4) are arguably attempts at limiting the widely couched emergency powers of the central government for the peace, order and good government of the country as provided under the Independence and Republican Constitutions, and the exercise of which is discussed below. Suffice it to say at this point that the exercise of emergency powers by the elected post-independent administration at the centre led to a series of events that culminated in the military incursion into the government of the country. The tendency of the military to legislate for the country as a whole under the rubric of POGG without recourse to the legislative lists implied a permanent state of emergency for almost 30 years, which is considered in some detail below. However, it is relevant first to consider the process of judicial review which is central to the discourse in this chapter.

132  Colonial and Post-Colonial Constitutionalism in the Commonwealth Constitutional context and judicial review Judicial review has always been an important part of the post-independent constitutional arrangements in Nigeria. The courts, even with their ‘muted trumpets’ in the heady days of military rule, exercised constitutional powers of judicial review. While there is no constitutional court,16 the court system features a diffusion of the power of judicial review virtually through and across its hierarchical federal/ state structure. Courts of superior records are vested with general powers of judicial review by the Constitution as well as various statutes and rules of court. These are the High Courts, state and federal, the Court of Appeal and the Supreme Court of Nigeria. In this regard, the operation of judicial review within the legal system is very close to the American system.17 Nigerian courts exercise concrete powers of judicial review with a rigorous test for standing to institute action. The position has been that standing to sue is only available to individuals or groups that can establish a real stake in the outcome of the case. This restrictive test is itself mostly a remarkable instance of judge-made law than anything else. The restrictive rule of locus standi is not provided for by statute but was formulated by the Supreme Court during the country’s four-year interlude of civilian-led government. In Abraham Adesanya v President of the Federal Republic of Nigeria and another,18 the Supreme Court stated that on the construction of section 6(6) of the Constitution ‘it is only when the civil rights and obligations of the person who invokes the jurisdiction of the court are in issue for determination that the judicial powers of the court may be invoked’.19 The judicial attitude towards locus standi has been a major constraint to public interest litigation in the country, especially during the military era. The courts have largely not shifted position from treating public interest litigants as meddlesome interlopers20 who stand to be condemned for their attempts to waste the precious time of the courts. But this non-functional rule of standing has not always been the applicable position of the law on standing to sue in the country. The pre-Adesanya position was in conformity with the liberal common law position on locus standi which accorded standing based on the nature of the cause.21 Notwithstanding the restrictive judicial leaning on standing, it is arguable that a careful reading of relevant constitutional provisions, especially sections 6 and 46 of the 1999 Constitution, and reflection on judicial practice, suggest that the Nigerian legal system accommodates both ex ante and ex post facto judicial review. Section 315(3) of the Constitution further confers extensive powers of judicial review on the courts over all forms of legislation in the country. With this power, the courts can invalidate any part(s) or even declare a whole Act void for violation of the Constitution, which is supreme. This provision, as will become clear, is relevant to judicial considerations of the POGG power. It is also germane to note that the Supreme Court, by virtue of section 232 of the Constitution, is the only court vested with original jurisdiction over any dispute between the Federation and a state or between states if the dispute involves any question (whether of law or fact) on which the existence or extent of a legal right depends. This constitutional

Adventurers in power 133 provision accounts for the Court being the judicial venue of the resolution of intergovernmental disputes where political measures fail; a common experience in the country, as the discussion below on the post-authoritarian period demonstrates. Before this discussion, however, the next part examines the use of the POGG clause as an instrument for legitimating authoritarian rule.

Authoritarianism and peace, order and good government It has been observed that Nigeria ‘epitomises the military in government’.22 The travails of the country under various military regimes have been well-documented and analysed in the legal and political science literature.23 What has been much less investigated is the deployment of POGG as a legitimating tool for authoritarian rule in the country and elsewhere. The authoritarian manner in which the POGG clause could be used, arguably stemming from its imperial origins, has been deployed to the fullest advantage by military adventurers in power in many Commonwealth countries. Nigeria is a prominent example. An indication of how this has worked out is reflected in the fact that there was a striking absence of intergovernmental contestation in the period of authoritarian military rule with regard to federal control of the country’s offshore jurisdiction in contrast to the experience of other federations.24 For almost three decades, successive military regimes in the country handed down ‘enabling constitutional’ legislation in which the POGG clause prominently featured.25 The purport of all such legislation was to either oust or limit the jurisdiction of the courts to question military fiat in legislation which, in more than a few instances, abrogated or violated national, regional and international human rights provisions and standards. The first military legislation, Decree No 1 of 1966, illegally abolished the Parliament.26 Section 3 of the Decree provided that the federal military government had the power to make laws for the ‘peace, order and good government’ of Nigeria or any part on any matter.27 The absence of inter-jurisdictional contestation on extra-territorial powers in the country (in contrast with the experience in Australia for instance) was linked to the military approach to the application of the POGG power. As Emmanuel Nwogugu observed, the near silence on the matter was due not only to the absence of the ‘heat’ and ‘interest’ that characterised parliamentary debates by politicians.28 Rather, it derived also from the fact that the country was governed by a (Supreme) Military Council and ‘the Constitution (Suspension and Modification) Decree 1966, authorised the Federal Military Government to “make laws for the peace, order and good government of Nigeria or any part thereof with respect to any matter whatsoever”’.29 Even James Read’s sympathetic rendering of the overbearing position of the federal authorities during the period of military rule acknowledged this fact. According to Read: it is to cast no aspersion on the real efforts made by the Military Governments to diffuse power throughout the nation to say that a ‘Federal Military Government’ was always a contradiction in terms, the hierarchical command

134  Colonial and Post-Colonial Constitutionalism in the Commonwealth structure of an army being inherently incapable of operating in a federal form.30 Military supremacy and state security – for ‘peace, order and good government of the Federation’ In order to understand the paradox constituted by the POGG clause in the Nigerian constitutional experience, it serves to step back into the historical context that precipitated military rule in the country. In June 1962, the country’s Prime Minister, Abubakar Tafawa Balewa, moved a motion for the declaration of a state of emergency in the Western Region following intra-party power squabbles in the Action Group, the party in power in the region which was also the main national opposition party.31 The declaration of the state of emergency, not surprisingly, had ostensibly been made on the basis of the need to ensure the return of ‘peace, order and good government’ to that part of the country.32 The motion for the declaration, pursuant to section 65(1) of the Independence Constitution, was moved by Abubakar Tafawa Balewa, the Prime Minister at the time. It led to a series of events which culminated in civil unrest in that part of the country. The unrest spread to some others parts and this was one of the main reasons cited by the military mutineers who took over power in 1966.33 The judiciary had an important opportunity to pronounce on the mutiny that led to the truncation of the country’s nascent post-independence, civilian-led government in EO Lakanmi and Kikelomo Ola v Attorney-General (Western State), Secretary to the Tribunal (Investigation of Assets Tribunal) and Counsel to the Tribunal (‘Lakanmi’).34 The plaintiffs in Lakanmi challenged a military decree that ordered the forfeiture of their property ostensibly for corruption in public office on the basis that it was a violation of their constitutionally guaranteed property rights. The federal military government relied essentially on its powers to make laws for the peace, order and good government of the country in section 3(1) of Decree No 1 of 1966. While the court overruled the law under which the forfeiture order against the plaintiffs was made, it did acknowledge the military government as the ‘Supreme Legislative Authority’ in the country. The court went on to accord full recognition to military decrees as being superior to the Constitution in Adenrele Adejumo and Nigerian Construction Co Ltd v Colonel Mobolaji Johnson35 following on the promulgation of Federal Military Government (Supremacy and Enforcement of Powers) Decree No 28 of 1970 by the military government. The Decree stated that the military takeover of government was a revolution. It also reaffirmed the military regime’s power to legislate for the country ‘with a view to assuring the effective maintenance of the territorial integrity of Nigeria and the peace, order and good government of the Federation’.36 This Decree also ousted the jurisdiction of the courts to declare on or inquire into the validity of military decrees.37 Curiously, the Supreme Court did not offer the basis of its reasoning beyond the ‘validity’ of the ouster clause contained in the Decree. The Court apparently took the view that the military takeover constituted a revolution with Kelsenian dimensions and thus substituted the Constitution as the grundnorm

Adventurers in power 135 which was now located in military imposed legislation. In this manner, the courts upheld subsequent military legislation which legitimised authoritarian rule.38 A significant restatement of this judicial position was made in the unanimous decision of the Supreme Court in Attorney-General of Ondo State and another v Victor Adegoke Adewunmi (‘Adewunmi’).39 The Court again had cause to determine the implications of the POGG power in relation to the federal legislative list contained in the 1979 Constitution which was partly suspended or amended by military decrees. The respondent, Victor Adewunmi, sued the appellants and 15 others challenging the validity of the election of a traditional ruler, the Ewi of Ado Ekiti, Ondo State. During the pendency of the case, the first appellant, the military governor of Ondo State, promulgated Edict No 11 of 1984, which made provisions ousting the jurisdiction of courts in chieftaincy matters. The respondent went to court again to challenge the validity of the law by seeking a declaration that section 11(7) of the Edict was null and void and for other reliefs. The respondent succeeded at the trial court and at the Court of Appeal. This led to a further appeal to the Supreme Court. The question raised by the appeal was whether or not the military governor of a state in the Federation can pass a law which ousts the jurisdiction of a state High Court over a matter over which it would otherwise have had jurisdiction. The appellants contended that the military governor could do so because the repeal of section 4(8) of the Constitution of 1979 by Decree No 1 of 1984 has by implication not only enabled the military governor of a state to pass such a legislation but also modified the unlimited jurisdiction of the High Court of a state under section 236(1) of the Constitution. In any event, they contended, the intendment of Decree No 13 of 1984 was to render any decree or edict immune from challenge in any court of law. On the other hand, the respondent argued that by the very words of both Decrees No 1 of 1984 and No 13 of 1984 it was intended that there should be some limitations to the exercise of legislative powers by a military governor of a state. One of those limitations is where the edict in question is in conflict with the provisions of a decree or some unsuspended provisions of the Constitution of 1979. It was contended, therefore, that the edict in question contravened both Decree No 1 of 1984 and the unsuspended provisions (sections 6 and 236) of the 1979 Constitution. The Court found for the respondent. Justice Nnaemeka-Agu held that the provisions of section 2 of Decree No 1 of 1984, which provides that ‘the Federal Military Government shall have power to make laws for the peace, order and good government of Nigeria or any part thereof with respect to any matter whatsoever’, altered the legislative pattern under section 4(2) and (4) of the 1979 Constitution. According to Justice Nnaemeka-Agu, section 4(2) and (4) limited the legislative power of the National Assembly to any matter included in the exclusive legislative list and ‘any matter in the Concurrent Legislative List’ to the extent set out in Part II of the Second Schedule to the 1979 Constitution. In other words, the legislative competence of the federal government during the period of civilian-led government was tied to the legislative lists and limited by the 1979 Constitution. However, the legislative power of the federal military government were not limited or restricted by

136  Colonial and Post-Colonial Constitutionalism in the Commonwealth any legislative list but was exercisable on any subject whatsoever and over the whole country by Decree No 1 of 1984 once the military forcefully took over power.40 The Supreme Court, in expressing the supremacy of military decrees in the constitutional order, stated that the fundamental law of the country from which all the authority, legality and validity of other laws is derived is the Constitution (Supremacy and Modification) Decree No 1 of 1966 and decrees of identical appellation promulgated by successive military governments between 1966 and 1984 following various military coup d’etats. According to Justice Karibi Whyte in his concurring judgment, the Constitution, insofar as it survived and is applied, did so on the goodwill and authority of the military government. It is now part of Nigerian socio-political history that military rule thus legitimated led to gross violations of human rights including a civil war that resulted in the death of hundreds of thousands of Nigerians and left the country virtually polarised along ethnic lines. Military regimes in Nigeria (as is common elsewhere) were notably intolerant of criticisms of their authoritarian policies and constantly resorted to arresting and detaining real and perceived critics of their policies without trial for months, sometimes years, under the ambit of state security. Arrests and detention of citizens under such laws were typically declared as being beyond judicial review of the courts. Here again, the POGG power was called in aid. An example is the the State Security (Detention of Persons) Decree No 2 of 1984, which ousted the jurisdiction of the courts for actions taken under it. Rights activists, journalists, politicians, members and leaders of civil society groups were particularly targeted by the military under the provisions of ‘Decree 2’, as the notorious legislation was known. As Human Rights Watch noted of the situation in 1996, it was deplorable that detainees under Decree 2 were deprived of the right to be informed of the reasons for their arrest or detention, access to legal representation, family and private medical treatment. Detainees were liable to indefinite detention on grounds of state security without charge or trial.41 In sum, the latitude of powers the military regime arrogated to itself under the POGG clause (incorporated into section 3(1) of Decree No 1 of 1966) was immense. The POGG power served as the linchpin for issuing legislation which legalised gross violations of human rights under various military regimes. The power was constituted into what has been described as ‘a blanket provision under which the Federal Military Government could take refuge any time by means of Decrees’.42 Thus, for instance, shortly after coming into power in 1966, ostensibly based on the POGG power, the military regime promulgated several State Security (Detention of Persons) Decrees under which almost 60 people were detained.43 The Decrees ousted the jurisdiction of the courts to conduct any enquiry into whether ‘the fundamental human rights provisions of the Constitution have been, or are being, or would be contravened for the purpose’ of the Decrees.44 The use of arbitrary detention legislation was a basic feature of virtually all the military regimes in the country from 1966 to 1999 when various military governments ruled.45

Adventurers in power 137 Bound for collision – military and traditional rulers The reach of the POGG power was wide during the period of military rule. It was commonly invoked by military administrations to remove traditional chiefs, especially to ensure the installation of their preferred candidates. This was set against a background of military recognition of the abiding influence of the traditional institutions in the country. The British Empire established its control over what came to be known as Nigeria essentially through a system of ‘indirect rule’ – a system of governance through indigenous political institutions. Under it, local chiefs were recognised and permitted by the British to maintain their authority and govern their people through local systems to which they were accustomed. The quid pro quo was the submission of the traditional rulers to a British administrator.46 Even after independence, the influence of the traditional institution has remained although its power and authority have been diminished due in part to their collaboration with the colonialists. The socio-political significance of the traditional institution was clearly evident in the post-independent constitutional structure. The structure recognised a House of Chiefs which, along with the House of Assembly and Her Majesty, had powers for making law for the peace, order and good government in the regions.47 It was unavoidable that military rulers would seek to extend their sphere of influence over the populace and secure their political power-base through interference with traditional authority. With the displacement and abrogation of the formal political structures of democratic governance in the country, it was not surprising that the military would be concerned about the clout and political influence of an institution that was recognised and beneficially utilised by even the colonial power.48 Pragmatism and political expediency dictated engagement with an institution which, unlike constitutionally introduced institutions, derived its authority and legitimacy from (usually, though not invariably) long-standing customs and traditions to which the people remain considerably loyal. Put in another way, while abrogation of constitutionally created or statutorily established political institutions may be achieved through military fiat, the hold of tradition on the society was much stronger. For all of the coercive powers of the military, it refrained from legislating out of existence the traditional institution perhaps acutely aware of the possibility of severe political backlash. In any event, the colonial experience (then relatively fresh) commended the option of engagement and interference rather than the drastic measure of abrogation. As such, the military maintained a keen interest in securing the loyalty of traditional rulers in the country and constantly interfered with the traditional institution during the decades of its rule. Like the colonial government’s approach in that regard, the process of interference with the indigenous political system49 called in aid the POGG power. The military top-brass, recruited and trained by the British colonial government,50 were well aware of the deposition and banishment of Oba Eshugbayi Eleko, successor to Oba Dosunmu, who had ceded Lagos to the British in 1861. Eshugbayi was found much less pliable by the colonial Governor of Lagos and was

138  Colonial and Post-Colonial Constitutionalism in the Commonwealth eventually ordered deposed, arrested and removed from the colony. He unsuccessfully challenged the orders through a series of cases before the Supreme Court of Lagos (then a court of first instance). The Judicial Committee of the Privy Council (JCPC) in Eshugbayi Eleko v Officer Administrating the Government of Nigeria and another (‘Eshugbayi’)51 upheld the application of section 2 of the Deposition of Chiefs Removal Ordinance 1917 (as amended) under which Eshugbayi was banished from the colony. Section 2(1)(b) of the Ordinance provided that the colonial governor could direct that a chief or native, within the time specified in an order of deposition or removal, leave the area over which he had exercised jurisdiction or influence and such other part of Nigeria adjacent to it as may be specified in the Ordinance if the colonial governor was satisfied this was necessary for the re-­ establishment or maintenance of ‘peace, order and good government in the area’. This case continues to serve as the leading authority on deposition of traditional rulers in the country not least because chieftaincy laws in the states remains largely unaltered (at best adapted) colonial legislation of the sort in issue in Eshugbayi’s case. In Eze Lambert Okoye Akuneziri v Chief PDC Okenwa and 3 others (‘Akuneziri v Okenwa’),52 the Supreme Court had to consider the validity of the Imo State Law which provided that the military governor could depose a traditional ruler based on the POGG power contained in chieftaincy legislation. The trial court had held that the de-stooling and withdrawal of recognition of the plaintiff was constitutional and in accordance with Chieftaincy Law No 22 of 1979 of Imo State. Dissatisfied with the decision of the High Court, the respondent appealed. The Court of Appeal reviewed the evidence in the case, allowed the appeal and set aside the judgment of the trial judge. The appellant then brought this appeal to the Supreme Court to challenge that decision. Justice Mohammed, delivering the leading judgment of the Supreme Court, held that a state military administrator could lawfully depose a traditional ruler based on the POGG powers contained in chieftaincy legislation. The Court was satisfied that the High Court was right that the military administrator acted within his powers as provided for under section 9 of the Imo State Law to withdraw the recognition from the first respondent as the traditional ruler of his community. The Court held that although section 14 of the Law envisaged the setting-up of an inquiry before the suspension or removal of a traditional ruler, the military administrator had unfettered powers to remove a traditional chief under section 9 without such an inquiry. This is because section 9(1) provided that the military administrator can suspend or withdraw official recognition from a hitherto recognised traditional ruler where he is satisfied that it is (a) necessary having regard to persistent acts of violation of the code of conduct by the chief as required by the customary law of the community he represents or (b) necessary in the interest of ‘peace, order and good government’. According to the Court, there was no doubt that on a plain and natural meaning of section 9, the military administrator did have power to withdraw recognition from the plaintiff and it is plain that section 9 did not require the governor to seek advice in that regard from any quarters. Justice Ayoola emphasised that the power of withdrawing recognition from a chief contained in section 9 is wider than that contained in section 14(1). A chief

Adventurers in power 139 does not have to have misconducted himself for the governor to be satisfied that withdrawal of the chief’s recognition is necessary in the interest of ‘peace, order and good government’ pursuant to section 9(b). What was granted to the governor was a ‘plenitude of powers’ which did not require consultation before he could take a decision.53 Similarly, in Alhaji Sule Agbetoba v Lagos State Executive Council54 the Supreme Court also stated that even where a qualified candidate for a chieftaincy had been duly selected and nominated by relevant authorities, such candidate could be rejected by the Lagos State Executive Council because of provisions of a military legislation on the matter.55 The position of the law, according to the Court, was premised on determination of POGG.

Mutation or transformation? Political transition and peace, order and good government From May 1999, when the country moved to civilian-led government, the POGG clause assumed an even more prominent place in Nigerian constitutionalism. The political transition marked the end of years of authoritarian military rule. A key issue arising from the post-military authoritarian period is the decidedly authoritarian bend of the elected executive president, head of state and government, Chief Olusegun Obasanjo (1999–2007).56 A retired army general and former military head of state, Obasanjo relapsed into military authoritarian style of leadership in his eight-year tenure between 1999 and 2007 before handing over power in the first ‘civil-civil transition’ in the country.57 The elite that dominate the country’s political landscape, a good number of who are retired military officers or their civilian protégés who held political office during the period of authoritarian rule, have closely followed the military style of leadership.58 A number of related (mostly structural) factors, carried over from the authoritarian period coupled with an un-negotiated political transition, left the country politically fragile. These included an imposed constitution, a continued legitimacy deficit of the political branches, a lopsided, conflict-prone federalism, political wrangling and inordinate ambition for power among hegemonic elite. The political elite, largely lacking in social legitimacy relevant for galvanising public participation in and debate on social change and restructuring of the country, have mainly had recourse to the judicial process to resolve emerging political conflict between the centre and the states. The first decade of the country’s post-­ authoritarian political transition was notable for the judicialisation of these disputes as political dialogue and related measures adopted for their resolution failed to yield the desired concessions. As a matter of political consociation, the political elite thrust the role of mediation on the Supreme Court. The Court has been saddled with the task of determining the propriety of fiscal measures and contested revenue-monitoring legislation, anti-corruption initiatives and delimitation of the powers of the political branches in the country’s governance. As the preceding discussion on the judicial role in authoritarianism and its interpretation of the POGG clause in that context shows, this has not always been the case. In fact, the judiciary had been known to be largely pliant to the exercise

140  Colonial and Post-Colonial Constitutionalism in the Commonwealth of political power in the country’s military rule-dominated political history. As emeritus Justice of the Supreme Court, Kayode Eso candidly admitted, only very rarely did the judiciary depart from a ‘literal and sometimes dull interpretative role’.59 The Court had identified (with few exceptions) with plain-fact jurisprudential preference in its interpretive function and basically legitimated military rule after initial resistance.60 With the dawn of civilian-led government, the POGG clause has taken new constitutional form in the process of judicialisation of vital aspects of governance in the post-authoritarian period.61 There has been a persistent reference to the POGG clause by the federal government to justify what has been viewed by the contending states as subversion of federalism – a fundamental constitutional principle. Peace, order and good government to the rescue? Consociation and (re-)negotiating federalism Since the return to civilian-led government in 1999, federalism has been at the core of most intergovernmental disputes in Nigeria. The herald has been the call for ‘true federalism’. Federalism as an organising political concept has had an expedient but turbulent history in the country. It was adopted to accommodate diverse groups with distinct ethnic identities, language, culture, religion and even geographical locations brought together under British colonial rule.62 However, the country’s experience of the application of fundamental principles of federalism has been largely chequered no thanks to its experience of military authoritarianism following its post-colonial period. Yet, so sensitive and fundamental is federalism as an organising and foundational concept in the political and legal system of the country that successive military regimes paid unqualified lip-service to preserving it. The attempt by General Thomas Aguiyi-Ironsi – the country’s first military leader – to abrogate federalism through the Unification Decree No 34 of 1966 was a key factor in his short-lived regime,63 a bloody coup that claimed his life and subsequently plunged the country into a civil war (that shook the country to its foundations) between July 1967 and January 1970.64 Federalism in Nigeria: past and present Despite its preference in practice for a unitary system which fitted its command institutional structure, successive military regimes in the country intuitively maintained the federal political structure, even if notionally. This may have been a stratagem to assuage feelings of alienation and reduce potential antagonism to its imposed rule. It is apposite to observe that on the adoption of federalism as a political and legal principle in 1954, the three regions, Northern, Western and Eastern, were more powerful than the centre. The regions were very influential in the determination of policy even at the national level, to suit their socio-economic and political preferences.65 Significantly, however, by the time the military left power in 1999, one of its legacies was what many observers consider as a structurally lopsided and incongruent federation. The key feature of federalism, the

Adventurers in power 141 autonomy of the constituent parts – the states – vis-à-vis the centre, has been systematically compromised and severely eroded.66 Political analysts have identified the incidences of the civil war, the progressive unbundling of the three regions into 36 states, the increased revenue derivable from oil and economic globalisation, as some of the key factors responsible for the over centralisation of power in Nigeria’s federal system under the military. The experience of the civil war (and the emergency powers deployed as a result) and the creation of the states ostensibly to assuage agitations on perceived marginalisation led to a fractionalisation that engendered the need for a strong homogenising centre.67 Oil wealth made (and continues to make) control of the centre (and the control it exercises over oil resources) particularly attractive. The need for standardisation and national competitiveness fostered by globalisation further strengthened the trend towards centripetal federalism in Nigeria.68 These are typical ‘nation-building’ arguments for instituting a federal arrangement in the modern state particularly in the context of transitional societies emerging from colonialism, authoritarianism or even a divided past. Thus, similar concerns have been identified for instance as underpinning the implicit federal political structure of South Africa (following on colonial rule and apartheid)69 and elsewhere.70 One critical legacy of military rule which is yet to be addressed is the accretion of power at the centre.71 The federal government, as part of the legacy of military rule, accumulated so many powers that it dominates virtually every aspect of governance, from the control of commerce and trade, weight and measures, social security, police and policing, arms and ammunition and labour matters, to vital aspects of land matters within the states. Perhaps the most eloquent testimony of the shift to federal dominance in Nigerian federalism is the statement of competencies of the levels of government as reflected in the legislative lists contained in the Constitution. The 1999 Constitution assigns at least 66 broadly worded exclusive powers on the federal authorities. The exclusive powers of the federal authorities on over 30 items are in addition to a concurrent (in practice, overriding) jurisdiction, with the states. This is a far cry from the position at independence. It is instructive in this regard for instance that the final act of British constitutional legislation in the country, the Nigerian (Constitution) Order in Council 1960, enacted separate constitutions for the federal and three regions.72 Indeed, section 4 of the Constitution of each region established a legislature for the region, which at the time consisted of Her Majesty, a House of Chiefs, and a House of Assembly. The regional legislature had power to make laws for the ‘peace, order, and good government’ of the region. The dominance of the federal government has proceeded with concomitant fiscal implications – a larger control of the country’s resources.73 During the long years of military rule, the command-structure style of governance imposed on the body politic did not accommodate agitations for fiscal and political restructuring of the country. As Ladipo Adamolekun and Bamidele Ayo noted of the period, the military administrators who ruled the states were ‘more like military prefects in a French-style provincial administration’ than ‘leaders of sub-national units with any meaningful autonomy’.74 Consequently, by the

142  Colonial and Post-Colonial Constitutionalism in the Commonwealth time the country returned to civilian-led government in 1999, governance in the country had become over-centralised, to the consternation of many interest groups, which were disempowered by military authoritarianism to challenge the anomaly. That authoritarianism, it has been argued, was legitimated by the courts at least partly on the footing of the POGG clause. The transition from military authoritarianism soon forced tensions arising from the country’s de jure federal status which transformed to a de facto unitary polity to the centre-stage of socio-political discourse in the country.75 It is now apt to direct attention to the issues of judicialisation of fundamental disputations which had bedevilled the political transition and the implications for governance in the Nigeria polity. Judicial constructions of the POGG clause have again played an important part in that milieu. Courts, federalism and peace, order and good government There are ‘intense pressures’ for a review of the lopsided legislative list by the subnational units (the states), while the issue of resource distribution led to ‘heated debates’ at the dawn of the new century.76 The view that ‘underlying many disputes are struggles over power, status, and human needs such as identity, recognition, and security’77 appears applicable to Nigeria’s post-­authoritarian experience. There has been a wave of violence in the Niger Delta of the country,78 the North and other areas. Political initiatives reluctantly convened by the federal government, most prominent of which was the 2005 National Political Reform Conference, failed to produce a consensus for resolving thorny political claims.79 Resort to the judiciary by political players to challenge the country’s (authoritarian) legacy of centripetal federalism has been the most prominent mechanism for resolution of intergovernmental disputes. This generally remains the case but was especially prevalent during the Obasanjo administration. The issues of fiscal federalism (especially the allocation of revenue) and the control of certain strategic matters based on territorial claims (including local governments, the third-tier of government) were at the centre of intergovernmental disputes.80 Consideration of a few cases illustrates the point. Anti-corruption initiatives: a matter of urgent national and international concern A critical issue of national and international concern with the opportunity of the political transition is the unenviable record of corruption in the country. The military cited the need to check the incidence of corruption as a major justification for its foray into government in 1966. In similar manner, corruption was cited as strong justification for every coup and counter coup that followed.81 However, by the time it handed over power in 1999, the military had institutionalised corruption, misappropriation and theft of public funds in the country.82 Corruption, particularly in the public sector, had stultified socio-economic development and was a major factor in the pervasive poverty in a country with a large, young population and immense natural resources. Initiatives at moving the country forward

Adventurers in power 143 faced a major challenge from a ‘kleptocratic elite’ developed essentially under the auspices of military rule.83 I have noted elsewhere that ‘combating corruption in the polity was clearly a policy imperative’ when the country emerged from military rule if there was to be any hope of ‘halting the downward spiral in the nation’s economic and social development’.84 The Obasanjo administration was acutely aware of the need to confront corruption and this was, at least by insider accounts, very high on its agenda at the onset of the administration.85 In pursuit of this imperative, the Obasanjo administration, at its inception, in 1999 set in motion the process for establishing the Independent Corrupt Practices Commission (ICPC)86 and later the Economic and Financial Crimes Commission (EFCC).87 Despite obvious overlaps in some of their functions and jurisdiction, public support for the anti-corruption initiative was very high. However, the move soon ran into rough constitutional weather when the ICPC was challenged by a state government. Ondo State contended that the ICPC Act was in violation of federal principles in seeking to investigate and prosecute state officials in state high courts for corruption. The Ondo State government took its challenge to the Supreme Court in Attorney-General of Ondo State v Attorney-General of the Federation and 35 others (‘ICPC’)88 in accordance with sections 232 and 315 of the Constitution. A major question raised by the case was whether the National Assembly could legislate for the offence of corruption under the POGG power contained in section 4(2) of the Constitution of Nigeria 1999. The plaintiffs argued (with the support of many of the states), that the National Assembly acted ultra vires in passing legislation that created a body with such wide-reaching powers as the ICPC and the offences of corruption for the whole country. The offence of corruption, it was argued, was a residual matter, and thus within the exclusive competence of the states by virtue of the lack of mention of it in the legislative lists in the Constitution. But the Court disagreed. It held that the National Assembly could enact anticorruption legislation for the whole country. It accepted the federal government’s argument that the National Assembly could enact such legislation by virtue of the (non-justiciable) provisions of the ‘Fundamental Objectives and Principles of State Policy’ of the Constitution, which provided in part that the state had a duty to ‘abolish all corrupt practices and abuse of power’.89 Anti-corruption legislation enforcing this fundamental objective and directive principle is for the ‘peace, order and good government’ of the country.90 ‘The ICPC Act’, the Court held, ‘is an enactment for the peace, order and good government of the Federal Republic of Nigeria’91 and the National Assembly was empowered to pass it by virtue of the provisions of section 4 of the Constitution. In concurring, Justice Uwaifo declared that: It is an aspect of good government of the Federation that there should be no corrupt practices and abuse of power; and that is central to the power conferred on the National assembly by Section 4(2) and (3) of the Constitution to make laws for the peace, order and good government of the Federation with respect to any matter included in the Exclusive legislative list.92

144  Colonial and Post-Colonial Constitutionalism in the Commonwealth The Court stated that ‘corrupt practices and abuse of power can, if not checked, threaten the peace, order and good government’ of the country or any part of it.93 The summary of the Court’s position is well captured in the words of Justice Uwaifo, who observed that the issue of corruption and abuse of power has become an international one and in the event that it has been declared state policy to combat it in the country, such policy assumes the character of a ‘national issue of high priority’ to be legislated on by the National Assembly and best addressed through a central agency like the ICPC.94 With the unanimity of the highest judicial panel in the country behind it, the federal government proceeded with an anti-corruption drive that has been controversial in its operations and results to date.95 It is a move which brought to the front-burner for the first time in the country’s history (at least in the few years that immediately followed) semblance of a definitive policy to combat the menace of corruption. It is of particular interest here that this interpretation and application of the POGG clause is a departure from its conventional attribution as a plenary power that cannot be subjected to judicial scrutiny. This is a converse to the judicial interpretation of the Nigerian courts which followed the traditional approach prevalent in other Commonwealth countries, as the discussion so far has shown. The interpretation of the court here is clearly an objective one. It appears implicit in the decision that, at least as far as the invocation of the POGG clause is concerned, establishment of a national agency to check corruption is a valid measure of ‘good government’. This is further confirmed by the leading judgment delivered by the then Chief Justice Uwais, who stated that since Item 67 of the Constitution (under the exclusive list) read together with section 4(2) provide that the National Assembly is empowered to make law for the ‘peace, order and good government’ of the federation and any part of it, the National Assembly has the power to legislate against corruption and abuse of office even as it applies to persons not in authority under public or government office. For the ‘aim of law is to achieve the common good’.96 While the interpretation of the court here applies to vest wide federal POGG powers on the federal government, it is a marked departure from the plenary powers approach as discussed later in the majority decision of the House of Lords in Bancoult No 2.97 It is also a departure from the typical approach to the construction of POGG across the Commonwealth. Importantly, too, it marks a departure from the judicial approach to the construction of the POGG power in the colonial as well as authoritarian periods in Nigeria. However, the Supreme Court was aware that, like the Canadian experience, according a wide latitude to the POGG power to legitimate country-wide jurisdiction to a federally created anti-corruption agency had possible implications for civil and property rights. Justice Ogwuegbu, relying explicitly on Canadian federalism cases on POGG – Munro v National Capital Commission and Attorney-General for Ontario v Attorney-General for the Dominion98 – stated that the ICPC Act is an enactment for the POGG of the Federal Republic of Nigeria and such legislation on corruption and abuse of power must be of concern to every Nigerian even if, as is the case here, the operation of the legislation will affect property and civil rights of

Adventurers in power 145 citizens in the states. ‘Such an enactment’, his Lordship stated, ‘like all enactments of the National Assembly will be of paramount force’.99 An interesting point in the decision is how the Court relied heavily on Canadian POGG cases to sustain the validity of the anti-corruption legislation where, unlike the constitutional context in Canada, the POGG power is not residuary. Both the federal and state authorities have express constitutional powers to make laws, within their legislative competence, for POGG and the established constitutional principle is that states, and not the federal legislature, have residual legislative power. Justice Uwaifo’s concurring decision is notable in this regard for identifying with the approach of the Canadian cases in advancing a ‘national dimension’ or ‘national concern’100 justification for validating the ICPC Act. Such matters are of ‘national interest’ and inevitably regarded as affecting the POGG of the country necessitating uniform legislation.101 Taking a cue from Attorney-General of Canada v Attorney-General of British Columbia,102 Justice Uwaifo declared that: there are certain matters which are of such utmost national concern as they affect the polity that legislation intended to meet the challenges is ensured to coast through passage in the legislature, and is implemented even if it trenches on some subjects or powers allocated to other authorities. The issue of corrupt practices and abuse of power in Nigeria is of such dimension.103 There were similar, approving references to Australian jurisprudence on the POGG power and the extensive reference to and approval of comparative Commonwealth jurisprudence. Such cases are conventionally regarded to be (usually) of weak persuasive authority only and the attitude of the judges in this case is arguably unmatched in the approach of a notably conservative court.104 Monitoring revenue allocation: curbing local leakages from the centre A related issue to the above discussion on corruption is the monitoring of government revenue, particularly with regards to proper disbursement. The distortions brought into the country’s practice of federalism had made the operations of revenue allocation and distribution opaque with resulting impact on public servicedelivery. Perhaps taking for granted judicial support of the Supreme Court for its declared anti-corruption policy, the Obasanjo administration attempted to set up a mechanism to monitor disbursement of revenue to the local governments. The National Assembly passed the Monitoring of Revenue Allocation to Local Governments Act 2005 (‘Revenue Monitoring Act’), which established ‘the Joint Local Government Account Allocation Committee’ for the federation. The main purpose of the Revenue Monitoring Act, as stated by its explanatory memorandum, was to ensure that allocations from the Federation Account and the states were promptly paid into the Joint Local Government Account and distributed ‘in accordance with the 1999 Constitution’. The deplorable state of infrastructure in the country is largely attributable to misappropriation of public funds and, as such, there is a lot to be said for

146  Colonial and Post-Colonial Constitutionalism in the Commonwealth initiatives to check corruption in the country. Local governments have had a notoriously poor performance record for years. Suffice it to say, however, that there are clear constitutional provisions in the direction of states being the appropriate channel for securing the proper functioning of the local governments (section 7 of the Constitution). Predictably, the Revenue Monitoring Act drew the ire of the states. Abia State first approached the Supreme Court while Lagos and Delta States quickly followed suit. In the consolidated matter, Attorney-General of Abia State and two others v Attorney-General of the Federation and 33 others (‘Revenue Monitoring’)105 the judgment of the Court declared judicial notice of the customisation of judicialisation of highly political issues in intergovernmental relations in the transition to democratic rule.106 It also noted the level of agitation that underwrites the case. The short Act of 10 sections, the Court observed, had caused ‘so much anxiety, furore and turbulence … ill feeling and rancour’,107 particularly in the states. The issue before the Court was essentially that the federal government could not monitor revenue accruing to the local governments from the federation account once such funds are remitted, or, in the language of the Constitution, ‘allocated’, to the state Joint Local Government Committee. Only the legislature of the states could enact legislation for the distribution and monitoring of such funds. The plaintiffs sought the nullification of the perceived offending sections (1, 2, 3, 6(1), 7 and 9) of the Act, which conferred power on the federally established committee to monitor the distribution of the revenue of local governments in the country. Lagos State, the third plaintiff, filed the most comprehensive objections to the Revenue Monitoring Act. Its claims were in part that the provisions of the Act were contrary to sections 4, 7, 128 and 162 of the Constitution. The National Assembly and, by implication, the federal government, could not exercise oversight functions over local government administration in the country. It was further argued for the Lagos State government that it was unconstitutional for the National Assembly to impose a duty on the state as the Revenue Monitoring Act sought to do, in matters within the legislative competence of the state legislature.108 In a federation, while the federal legislature has the power to legislate for allocation of revenue to all the components, it lacks the power to establish a management committee (as the Act purports) for a state or its local government councils. The other 33 states, although sued as co-defendants, supported the case of the plaintiffs. The federal government contended that since the National Assembly had the power to legislate under section 62(5) of the Constitution for the allocation of public revenue to the local governments, it must be taken to have an implied constitutional power to determine the manner in which such allocations may be made. It was further argued for the federal government that it enacted the legislation with the aim of checking the twin vices of corruption and abuse of office.109 The Court stated that federalism, as a viable concept for organising governance in a pluralistic society like Nigeria, does not encourage so much concentration of power in the centre (the federal government). While ultimate sovereignty lies with the government alone, the states are not to play the role of ‘errand boys’.110 The Court held that in accordance with the provisions of section 162(5) and (8) of the Constitution, it is the duty of the National Assembly to legislate for the allocation

Adventurers in power 147 of the amount standing to the credit of the local governments to the states. But it is the constitutional duty of the state assembly (the state legislature) to distribute the funds standing to the credit of each state from such allocations. A critical issue in the case was the declared intention of the federal government to curb corruption in the system through certain provisions of the Act, which either penalises states or criminalises its officials for acts of alteration, deduction or reallocation of local government funds. Here, it is germane to note that section 7 of the Revenue Monitoring Act appears to be motivated by a desire to curb the widespread and deplorable practice by state governments of diverting local government allocations from the federation account, the latter’s main source of funding. Poor funding of the local governments has been a factor in the near-total absence of social services delivery at that level of governance in the transition to civilian-led government. However, the Court declared that the ‘ambitious’111 section, despite its ‘clear good intentions’,112 could only be valid if it complied with the Constitution. The Court held that it did not.113 According to Justice Tobi, who delivered the leading judgment, the Court cannot question the power of the National Assembly to enact penal provisions under the federal power to legislate for the ‘peace, order and good government’ of the country. However, there is a caveat to the exercise of such legislative power, namely that it must be in accordance with the Constitution. This is because the legislative power to create offences is ‘not at large’ but incidental to the power to legislate on the subject matter.114 In effect, the POGG power could not be invoked in isolation of the context of the allocation of legislative powers under the Constitution. Otherwise, any purported exercise of the POGG power will be declared void by the courts. As another member of the panel similarly stated, while the federal power to make laws for the POGG of the federation was not in doubt, ‘this power is not ­open-ended or limitless’.115 Justice Tobi further stated that even the principle of ‘covering the field’ (provided in section 4(5) in favour of the federal authorities) can only apply where the National Assembly exercises its legislative powers under section 4(2) of the Constitution – federal POGG powers. It will not apply in a situation where the National Assembly makes legislation which encroaches on the legislative powers of the states under section 4(7) of the Constitution – state POGG powers. The Court referred to its decision in ICPC to buttress the fact that it does not condone corruption in any form. It recognised that there are serious leakages in the system and the need for all institutions, including the judiciary, to give firm support to efforts to check them. But the Court insisted that it will not turn a blind eye to unconstitutionally passed legislation even where it is ‘designed to promote the highest good and economic well-being of the society’.116 This is the case because the Nigerian Constitution, rather than the legislature, is supreme, as provided for in section 1 of the 1999 Constitution. However, reference to the POGG power was also a critical part of the dissenting judgments of Justices Kutigi and Musdapher (two members of the constitutional panel of seven). Justice Musdapher (who did not sit on ICPC) referred to the unanimous decision of the Court in ICPC. Justice Musdapher noted that

148  Colonial and Post-Colonial Constitutionalism in the Commonwealth the Court upheld the rationale of checking corruption in the country to validate a similar federal legislation in that case. There was no justification for deviating from the policy approach in the earlier decision. In this regard, Justice Musdapher cited the dictum of then Chief Justice Uwais in ICPC who acknowledged that there was a tension between fostering the common weal and upholding the cardinal principles of federalism and the expressed preference for upholding the former.117 Justice Musdapher was of the opinion that the policy perspective, which played an important role in the decision of the Court in ICPC, ought to be maintained in the present case. According to Justice Musdapher, the Court has the sacred duty to translate the noble ideas expressed in the Constitution, including the aspiration of ‘a society free from corruption’, into reality.118 Thus, since section 4(2) of the Constitution conferred powers on the National Assembly to make laws for the ‘peace, order and good government’ of the country, it is logical that it is equally empowered to legislate to ensure ‘transparency and to check the twin vice of corruption and abuse of power’.119 The Revenue Monitoring Act was designed to achieve the objective of the Constitution and the National Assembly was on sound footing in enacting it.120 Urban and regional planning law: (dis)unity in physical development? The dispute in Attorney-General of Lagos State v Attorney-General of the Federation and 35 others (‘Urban Planning’)121 related to an inherited military legislation, the Nigerian Urban and Regional Planning Decree No 88 of 1992 (‘the Urban Planning Decree’). The Decree vests ultimate urban and regional planning powers in the federal government for the whole of the federation. This was despite the fact that the federal government has territorial control of only the Federal Capital Territory, Abuja (‘FCT, Abuja’). The Decree dates back to the military practice of legislating for the whole country after the suspension of the supremacy clause of the Constitution. The aberration enabled the federal military government to assume unfettered legislative authority over the whole country and its decrees superseded all other legislation, including constitutional provisions, where there was a conflict. As part of transitional legislative arrangements, decrees were generally deemed, by means of certain legal fiction, to have been made by the National Assembly or the state Assembly depending on the nature of the subject matter. This firmly established constitutional view of military legislation in Nigeria was reaffirmed in the present case.122 The provisions of the Urban Planning Decree laid out elaborate details for the federal authorities to control matters of regional and urban planning in all parts and governmental levels in the country. The provisions were so comprehensive that they included the process for applications for grant of development plans and grounds for rejection of such applications. Overall, the spirit of the Urban Planning Decree was well depicted by its explanatory note, which stated inter alia that it was intended as ‘a new Urban and Regional Planning enactment for Nigeria with the establishment of Federal, State and Local Government Authorities to oversee the implementation of a more realistic and purposeful planning of the country’.

Adventurers in power 149 Not surprisingly, the states, in the transition away from military authoritarian rule, were not comfortable with the Urban Planning Decree. It had extensive ramifications for their autonomy, including otherwise not-so-obvious financial implications. The Lagos state government (the plaintiff) complained that the federal government (the first defendant) was interfering with, and making incursions into, the plaintiff’s arrangements in town and planning matters. Federal agencies were performing acts which were within the authority of the plaintiff in contravention of the Constitution. It cited numerous instances of grants of permits and licences for developments by the first defendant which, it alleged, constituted serious violations and distortions of its development plans for the state. Such actions had made it impossible for the state to implement its master plan for town, urban and regional development and planning which predated the legislation. The plaintiff stated that the acts of violation were committed in reliance on the Urban Planning Decree, whereas it had its own planning laws. It contended that the powers of town and regional planning as well as physical development of the first defendant was limited to and valid only with respect to the FCT, Abuja. The plaintiff argued that town and regional planning was a residual matter within the exclusive competence of the states. The Constitution does not envisage the intrusion of the federal authorities into such affairs and has thus not made any provisions for it. It was further contended for the plaintiff that urban and regional matters were one key example of matters entrusted to the states as a ‘local matter’.123 Relevant to the discussion of the POGG power, the reliefs it sought from the Court essentially came to a declaration that the numerous sections of the Decree which sought to control urban and regional planning as well as physical development of land in Lagos State were inconsistent with section 4 of the Constitution on federal and state POGG powers and, to that extent, null and void. The plaintiff further sought revocation of all planning and development approvals, permits and licences granted by the federal authorities in the territory of Lagos State from 1 June 1999 for being in contravention of the state’s town planning laws. In addition, the Court was prayed for a perpetual injunction restraining the federal authorities from granting any such approvals in the future without the ­authorisation of the state.124 The federal government argued that town and regional planning is a matter in the exclusive legislative list and outside the legislative competence of the states. It cited in support the provisions of sections 4(2), (3) and (4)(b), 14(2)(b), 17(3(c) and 20 of the Constitution. The subsections of section 4 relied upon by the federal government provided for its exclusive powers to legislate ‘for the peace, order and good government of the Federation or any part thereof’ with respect to any matter included in the exclusive legislative list. Section 14(2)(b) declares that ‘the security and welfare of the people shall be the primary purpose of government’. Section 17(3)(c) provides that the health, safety and welfare of all persons should be safeguarded and not endangered. Lastly, section 20 states that the ‘State shall protect and improve the environment and safeguard the water, air and land, forest and wild life of Nigeria’. The last three sections all form part of the

150  Colonial and Post-Colonial Constitutionalism in the Commonwealth non-justiciable ‘Fundamental Objectives and Directive Principles of State Policy’ contained in the Constitution. Section 20 in particular, with its reference to the duty of ‘the State’, presumably as represented by the federal government, formed the mainstay of its case.125 Three of the states concurred with the federal position while all others who actually participated in the case supported the case of the plaintiff.126 The Court, by a slim majority of 4–3, upheld the case of the Lagos state government for the most part. It stated that environmental protection as envisaged by the Constitution did not concern town, urban and regional planning or physical development. The raison d’être of section 20, the Court held, was the protection of the environment in the manner provided for in extant federal legislation on the environment. These included legislation on industrial environment protection, desertification, forestation and reforestation, pollution control, harmful waste, environmental impact assessment and related legislation.127 The Court agreed with the argument of the plaintiff that environmental protection has never been lumped with urban and regional planning in the country.128 Thus, federal powers to regulate the environment should be limited to ‘pure matters of the environment and not by extension to pure matters of town and regional planning’.129 A critical issue in the case was the Court’s firm position on what it referred to as ‘the non-controversial political philosophy of federalism’, namely that the federal government does not exercise supervisory authority over state governments. The Court noted that the Decree was remarkable in the fundamental manner in which it called into question the very foundations of the country’s federalism. The aberration constituted by military governance notwithstanding, it was never the political understanding in Nigerian society that the country was unitary. As Justice Uwaifo rightly noted in the leading judgment, the ‘entire conception, formulation and layout of the Decree has as its background a strong central command structure initiative’, arguably well suited to the preferences of a military regime. However, it would only be valid if there was evidence of a political decision to alter the federal status of the country.130 The Court was unequivocal that if ‘supreme’ military legislation constrained legal challenge of the Urban Planning Decree when it was promulgated (at the height of authoritarianism in 1992),131 that gave way with political transition to democratic rule. No provision of the Constitution conferred power on the federation, acting through the National Assembly, to enact a law on urban planning that would have effect in the states.132 By implication, then, the POGG powers could not be interpreted in favour of the federal authorities with a view to grant them constitutionally unstated plenary powers. There is another important aspect of the case. The Decree had serious, even if not so obvious, negative financial implications for the other levels of government. The states were presented with a fait accompli that imposed responsibilities on them without consultation or consent, doubtful benefit and very limited control. This was not at all lost on the Court and it played an important part in the decision of the majority. Justice Uwaifo noted in this regard that in light of the federal system in the country it was inappropriate for the federal authorities to extend powers in

Adventurers in power 151 a manner that not only intruded into the sphere of the states, but had serious fiscal implications for them.133 Here again the Supreme Court rejected the argument that the POGG power could (among others) legitimise the extension of financial burdens to states of a federation without their concurrence. The Court clearly stated that the federal government was bound, even with respect to its own land in the state, to obtain planning permission of the latter. It must desist from acting in competition or ‘unwholesome subjugation’ of the respective state and respect the planning authority of the latter ‘like any other individual landowner, though obviously with more awesome presence’.134 Persisting recriminations underwrote the plaintiff’s recourse to the Supreme Court for judicial intervention on the failure of dialogue between the parties. Thus, the pronouncement of the Court that all such matters were the exclusive preserve of the state brought relief to the plaintiff. Perhaps more importantly, it brought relief to thousands of residents who had lost considerable financial resources and, in some cases, liberty, in perceived assertion of alleged constitutional powers, an important part of which was the power of the federal government to make laws for the ‘peace, order and good government’ of the federation. Dramatically, however, the aftermath of the decision also led to some disquiet regarding the status of development approvals which had been granted by the first defendant. This was due to the refusal of the Court (arguably not without good reason) to grant the plaintiff’s claims for all such permits and licences to be declared illegal. On the rejected claims, the Court held that the Decree was validly in operation until its judgment declaring otherwise. Thus, all actions of the first defendant purportedly done under it were valid.135 The Court held that granting such reliefs would jeopardise due process rights and substantive interests of third parties not before it. This was because the procedural rule under which intergovernmental litigation is conducted in the country excludes the possibility of private interest participation. Such cases are, so to say, ‘strictly government business’. In this context it is relevant to note how the POGG power (and some other constitutionally created legislative powers) plays out in the courts. It is a matter of concern, as this case demonstrates, that the public, individuals and corporate citizens alike are constitutionally excluded from such proceedings. This is despite the recognition of the Supreme Court itself as stated in the dictum of Justice Ogwuegbu that the operation of the POGG powers as upheld in ICPC may have significant impact on property and civil rights, both of which were directly impugned in this case.

Whither peace, order and good government? The case of Nigerian constitutionalism It is apposite at this point to evaluate what the foregoing illustrative accounts tell us about the interplay of law, power and politics in the judicial constructions of the POGG power in the Nigerian experience as part of wider learning on Commonwealth constitutionalism.The POGG clause formed an important ratio decidendi in the unanimous decision of the Court in ICPC. However, the

152  Colonial and Post-Colonial Constitutionalism in the Commonwealth Supreme Court was keenly aware that the decision was essentially policy-based and, to a considerable degree, undermined the federal status of the country as enshrined in the Constitution. Justice Ogwuegbu clearly admitted that the ICPC Act constituted an affront to the principle of federalism because it directly interfered with the autonomy of the states (which had similar POGG powers in their jurisdictions). Nonetheless, the Court found it tolerable to sacrifice sub-national autonomy for the overriding priority accorded to the power of the National Assembly to make laws for the ‘peace, order and good government of the Federation’. Corruption as a national malaise deserved a national solution.136 Since the ICPC Act was enacted by the National Assembly, it was entitled to have ‘paramount force’ in the country.137 Thus, in ICPC, a fundamental policy objective (anti-corruption initiatives) attracted unanimous support of the Court even as it compromised another constitutional imperative (federalism). The earlier analysis of ICPC demonstrates that the Supreme Court adopted an expansive, purposive interpretation of the federal POGG power as a cardinal principle in its judgment. However, there is reason to believe that the Court is reluctant to uphold such an approach to the POGG power where the issue at stake is a purely political, as opposed to policy matter. This at least appears to be the implication of the view taken by the Court in Attorney-General of Abia and 35 others v Attorney-General of the Federation (‘Electoral Act’),138 another matter where the POGG power was at the core of the case made by the federal authorities. This decision was delivered three months before ICPC. The crux of the dispute in Electoral Act was that certain provisions of the Electoral Act 2001, a law made by the National Assembly to regulate federal, state and local elections, exceeded the National Assembly’s jurisdiction. The states claimed that the Electoral Act 2001 threatened the continued existence of the country as a federation. In particular, the states challenged the parts of the legislation that sought to set out the process of delineation of wards and constituencies, qualifications and procedures for elections into and tenure of local government councils for making serious incursions into areas of their legislative competence. The federal government contested this position, seeking essentially to rely on the powers of the National Assembly under section 4(2) of the Constitution to make laws for the federal POGG.139 It was on the basis of the POGG power, for instance, that the National Assembly enacted section 25 of the Act ‘to ensure orderliness and peace at [local, state and national] elections, which are indispensable conditions ­precedent to the attainment of a good government’.140 The Court, in dismissing the federal government’s defence, took a stand against what was obviously an undisguised federal attempt to appropriate all powers incidental to the regulation of the electoral process to itself. The Court upheld a restricted ambit for the power of the federal government to make laws for the ‘peace, order and good government’ of the federation. Here, again, the full significance of the Court’s position is best appreciated in the context of the political backdrop to the case. In Nigeria, control of electoral mechanisms and processes, particularly electoral commissions, has translated directly into (usually

Adventurers in power 153 manipulated) political victory. Given clear provisions of the Constitution on the matter, the law in contention would most likely not have passed legislative scrutiny but for the overwhelming majority control wielded by the ruling party. Although Electoral Act predated ICPC, the Court has since left little doubt that it prefers a more restricted view of the POGG clause as the right approach to the interpretation of section 4(2) of the Constitution. As Justice Kalgo stated in his concurring judgment, the legislative powers of the National Assembly: … do not cover everything or every topic under the sun which affects the whole Nigerian Nation … the use of the words ‘peace, order and good government of the Federation of Nigeria’ did not and was not intended to give the National Assembly a blanket power to legislate on every topic affecting the Federation particularly under the presidential system of government articulated by the Constitution.141 This was because, as Justice Ogundare equally pointed out, it was critical to bear in mind at all times that it was not just the federal but also state governments that are constitutionally empowered to legislate for ‘peace, order and good government’.142 In Revenue Monitoring (decided some three years after ICPC), the Supreme Court rejected the federal government’s attempt to rely on the holding in ICPC, which would give priority to a policy argument – namely the need to check corruption and abuse of office.143 Significantly, the Court rejected the attempt by the National Assembly to create a criminal offence under the Revenue Monitoring Act to check diversion of local government funds by state government officials. It conceded that the Assembly could make legislation that contained penal provisions, but with the caveat that it must be ‘vindicated’ by the Constitution.144 In this way, the Court made an implicit turnaround in its perspective on the salience of the federal POGG power and the weight to be accorded to an anti-corruption policy that was in explicit tension with the fundamental constitutional principle of federalism. The majority distinguished ICPC from Revenue Monitoring by making the dubious claim that corruption was not a prominent aspect of the latter.145 It can be recalled, however, that Justice Musdapher decried what he considered an ill-considered deviation from the precedent set in ICPC.146 Justice Musdapher’s views, in the light of the unanimous decision in ICPC, are arguably on considerably firm foundations. However, the Court’s turnaround in Revenue Monitoring can be explained in transitional jurisprudential terms, given some background. The ICPC Act was passed a few months after the inauguration of the new civil administration of President Obasanjo, whose proclaimed anticorruption policy attracted immense popular support. As the pronouncements of virtually all members of the ICPC panel showed, the Court was conscious of the depth of public outrage at the perceived reluctance of the National Assembly to pass the ICPC Act, and of national and international concern over the situation. As Justice Ogwuegbu aptly put it, ‘all Nigerians’, with the exception of beneficiaries of corruption, were ‘unhappy with the level of corruption’147 in the country. It

154  Colonial and Post-Colonial Constitutionalism in the Commonwealth is little wonder that the Supreme Court adopted a constructive adjudicative role in the context of the political transition in the country in that case. Thus, more than anything else, there is a sociological explanation for the judicial construction of the POGG power in ICPC. An expansive judicial construction of the (federal) POGG powers was merely a pliable medium for transmitting the judicial sensitivity to the politics of the anti-corruption campaign at the time. The judicial attitude to the interpretation of the federal POGG powers may have been different, for instance, if some of the states had pre-empted the federal initiative on anti-corruption or even demonstrated a keen interest. It would be open to at least some members of ICPC panel to mitigate likely public discontent with any arm of the government whose conduct or attitude could be construed as being opposed to the groundswell of demands for accountability and probity in public office. It is relevant in this regard to note that the judiciary was itself regarded as a corrupt institution. However – to some extent at least – following judicial support for the sweeping powers of the anti-corruption agencies, the apprehension of some critics of the thrust of the anti-corruption legislation appeared to have been vindicated with subsequent experience of the anti-corruption campaign. In the implementation of the policy, it was constantly alleged, and even some ardent supporters of the anti-corruption will concede, that the federal government invoked those powers selectively, targeting political opponents in the run-up to the crucial 2007 general elections.148 This led to renewed calls for restructuring of the government and decentralisation to achieve fairness and equilibrium in the allocation of powers and resources among the tiers of government. Calls for restructuring were perhaps strongest in the area of fiscal federalism, to which the criminalisation of corrupt practices was connected. This background seems to have set the stage for a more cautious approach in subsequent judicial encounters with the anti-corruption policy and, by implication, the ubiquitous POGG powers. At the time the Court heard Revenue Monitoring, it considered itself to be on safe ground to rethink its robust support for the (by this time suspect) anti-corruption policy of the Obasanjo administration. Much as it affirmed continued support for an anti-corruption policy, the Court adopted a different jurisprudential approach in Revenue Monitoring than it had done three years earlier in ICPC. In Revenue Monitoring, the majority chose to strike down legislation that sought to override the principle of federalism even though it was heavily based on hitherto upheld POGG powers.149 There was presumably an institutional decision, discernible in the judgment of the Court in the Revenue Monitoring, to hold the federal government more accountable to other constitutional values, particularly in light of the prevailing socio-political preference for a truly federal polity. Put another way, the Court was alert to the need to distance itself from the federal government which had lost some ground in its effort to portray a robust anti-corruption policy as justification for the continued erosion of the federal principle through the instrumentality of (federal) POGG powers which earlier garnered strong judicial assent.150

Adventurers in power 155

Conclusion So, what does the foregoing account tell us about the constitutional experiences of the POGG power in Nigeria? The evaluation of the POGG clause in Chapters 2 and 3 on Australia and Canada respectively in the context of a federation is germane to Nigeria’s post-colonial experience, but that is arguably where the similarity ends. The Nigerian experience of the application of the POGG power under military regimes bears out the assertion that, as a concept, it best supports the imaginings of ‘corporatist regimes of the 1930s – perhaps of Franco’s Spain’.151 In holding that corruption threatened the ‘peace, order and good government’ of the country and that it is an imperative of ‘good government’ to allow the federal authorities to establish a countrywide remit to control, it was in clear violation of the constitutionally enshrined principle of federalism in the country. The Supreme Court adopted an objective approach to the construction of the POGG power to facilitate this. The objective approach here refers to judicial construction of the purpose to be served by contested legislation based at least in part, if not essentially, on the POGG power. This is in contrast to a formalist account that privileges a ‘deemed’ plenary approach which the judiciary in most Commonwealth jurisdictions had upheld. To be sure, the unquestioning plenary approach steeped in formalism had been the standard interpretive approach of the Court in the days of military rule in Nigeria. It would appear that the formerly prevalent subjective construction of the POGG clause by Nigerian courts derived mainly from the substantive link between parliamentary sovereignty and the power to make laws for POGG. This link was explicit in (apartheid era) constitutions of South Africa but, at best, implicit in Nigeria, like many other Commonwealth countries – part of its constitutional legacy from British colonial rule. It will later be argued that the connection is not necessary as parliamentary sovereignty does not require the POGG clause to sustain it.152 However, the combination of the adoption of a presidential political system, constitutional supremacy, popular sovereignty and political transition to civilian-led government appears to have influenced judicial preferences on interpretation of the POGG clause in the country. This has resulted in limited accommodation of an objective approach to the POGG clause on such a key policy issue as the control of corruption. This is evidenced by a number of decisions of the Supreme Court analysed in the discussion above. With the reality of political transition, the Supreme Court, in resolving numerous intergovernmental claims which intertwined financial, territorial and even moral claims, moved into the frame of transitional adjudication with all of its jurisprudential challenges. A focal point of departure for a considerable number of the cases that have been contested through the judicial process has been around the theory and practice of federalism in the country, a much battered but cardinal feature of the country’s political arrangement. The POGG power has been frequently invoked in that milieu. One of the points that emerge in the consociation of power through the courts is the elusive meaning of the power given the attempts

156  Colonial and Post-Colonial Constitutionalism in the Commonwealth of the courts to stand above the quicksands of power politics in a convoluted ­political space.

Notes 1 Rudy B Andeweg, ‘Consociational Democracy’ (2000) 3 Annual Review of Political Science 509, 511. 2 Ignatius Akaayar Ayua and Dakas J Dakas, ‘Federal Republic of Nigeria’, in John Kincaid and G Allan Tarr, Constitutional Origins, Structure and Change in Federal Countries (McGill University Press, Montreal and Kingston, 2005), 241. A narrative of how the cession came about is provided in Attorney-General of Southern Nigeria v John Holt and Company (Liverpool) Limited and others [1915] AC 1 at 4–7. 3 See Benjamin Obi Nwabueze, A Constitutional History of Nigeria (C Hurst and Co, London, 1982), 6; and Toyin Falola and Mathew M Heaton, A History of Nigeria (Cambridge University Press, Cambridge, 2008), 94–95. 4 Nwabueze (n 3), 15–19. 5 Isawa Elaigwu, ‘Federalism in Nigeria’s New Democratic Polity’ (2002) 32(2) Publius 73, 74. 6 Ayua and Dakas (n 2), 242. 7 A Inegbedion and E Omoregie, ‘Federalism in Nigeria: A Re-Appraisal’ (2006) 4(1) Journal of Commonwealth Law and Legal Education 69, 71; and Ayua and Dakas (n 2), 242. 8 For an informed discussion on the evolution and development of constitutions in Nigeria from the colonial to the post-independence period, and the authoritarian through to the post-authoritarian period, see John Ademola Yakubu, ‘Trends in Constitution-Making in Nigeria’ (2000) 10 Transnational Law & Contemporary Problems 423. 9 John Hatchard, Muna Ndulo and Peter Slinn, Comparative Constitutionalism and Good Governance in the Commonwealth – An Eastern African Perspective (Cambridge University Press, Cambridge, 2004), 276–278. 10 James Read, ‘The New Constitution of Nigeria, 1979: “The Washington Model”’ (1979) 23(2) Journal of African Law 131. 11 Read (n 10), 131. 12 Read (n 10), 132. 13 Yakubu (n 8), 468. 14 Section 4(4)(b) and 4(8) respectively. 15 Attorney-General, Ogun State v Aberuagba (2002) Vol 22 WRN 52 at 77. 16 For a discussion of why Nigeria did not follow the example of Central and Eastern Europe as well as some African countries like South Africa in its political transition from authoritarian rule, see Hakeem O Yusuf, Transitional Justice, Judicial Accountability and the Rule of Law (Routledge, Abingdon, 2010), 145–146. 17 Lee Epstein, Jack Knight and Olga Shvetsova, ‘The Role of Constitutional Courts in the Establishment and Maintenance of Democratic Systems of Government’ (2001) 35(1) Law & Society Review 117; and Ayua and Dakas (n 2), 258. 18 (1981) 2 NCLR 358. 19 Adesanya (n 18), 385–386. 20 During the military era, to drive home the message that the judiciary was committed to this decidedly restrictive approach to locus standi, a Justice of the Court of Appeal infamously declared the late Ganiyu Oyesanmi Fawehinmi (Senior Advocate of Nigeria) – the foremost human rights and public interest activist the country has so far produced – to be a ‘busy-body’. 21 For a discussion of the issue, see Tunde Ogowewo, ‘The Problem with the Law of Standing to Sue in Nigeria’ (1995) 31 Journal of African Law 1.

Adventurers in power 157 22 Hatchard, Ndulo and Slinn (n 9), 242. 23 See, e.g. Bolaji Owasanoye and Clement Nwankwo, Suppressed Rights: Constitutional Rights Violations in Military Decrees 1984 to 1999 (Constitutional Rights Project, Lagos, 1999); Benjamin O Nwabueze, Military Rule and Constitutionalism in Nigeria (Spectrum Books, Lagos, 1992); Hakeem O Yusuf, ‘Travails of Truth: Achieving Justice for Victims of Impunity in Nigeria’ (2007) 1(2) International Journal of Transitional Justice 268; Oyeleye Oyediran (ed.), Nigerian Government and Politics under Military Rule, 1966–79 (St Martin’s Press, New York, 1980); Eghosa Osaghae, The Crippled Giant: Nigeria since Independence (Indiana University Press, Bloomington, Indiana, 1998). 24 Not surprisingly, the situation dramatically changed with the return to civilian-led government in 1999. The Federal Government itself thought it best to approach the Supreme Court to pre-empt further political pressure on the issue of the ownership of the country’s offshore resources in what came to be known (only partially correctly) as the Resource Control case. See Attorney-General of the Federation v Attorney-General of Abia and 35 others [2002] 4 SC (Pt I) 1. 25 Isawa Elaigwu, ‘Federalism under Civilian and Military Regimes’ (1988) 18(1) Publius 173, 183. 26 The military named federal and state legislation ‘Decree’ and ‘Edict’ respectively. 27 See also s 2(1) of the Constitution (Suspension and Modification) Decree No 1 of 1984. 28 Emmanuel I Nwogugu, ‘Problems of Nigerian Off–Shore Jurisdiction’ (1973) 22(2) International and Comparative Law Quarterly 349, 363. 29 Nwogugu (n 28), 363. 30 Read (n 10), 132 (emphasis in original). 31 Ben O Nwabueze, Constitutional Law of the Nigerian Republic (Butterworths, London, 1964), 173–174. 32 See Tafawa Balewa, ‘The Eyes of the Whole World Are upon Us’; available at http:// www.dawodu.com/emerg1.htm (accessed 7 August 2013). 33 Abiola Ojo, Constitutional Law and Military Rule in Nigeria (Evans Brothers (Nigeria Limited), Ibadan, 1987), 15–16. 34 (1971) University of Ife Law Reports 201. 35 (1972) 1 All Nigeria Law Reports 159. 36 Emphasis added. 37 Section 2(b). 38 The Nigerian courts are, of course, in good company with courts in some other Commonwealth jurisdictions. See, e.g. the decisions in the Ugandan, Pakistani and Lesotho cases of Uganda v Commissioner of Police ex parte Matovu (1966) EA 514, S v Dosso PLD 1958 SC 533 and Mokotso and others v King Moshoeshoe II and others (1986) LRC (Const) 24, respectively; but cf. the JCPC decision in Madzimbamuto v LardnerBurke [1968] 3 All ER 561 (PC) and, more recently, the Fiji case, Republic of Fiji v Prasad [2001] 2 LRC 743. The weight of academic and judicial opinion, it has been noted, is now heavily against revolutionary legality, at least of the military type. See John Hatchard and Tunde Ogowewo, Tackling the Unconstitutional Overthrow of Democracies: Emerging Trends in the Commonwealth (Commonwealth Secretariat, London, 2003). 39 (1988) All NLR 274 and (1988) LPELR–SC.130/1986. 40 Adewunmi (n 39), 16, paras C–G. 41 ‘Nigeria: Human Rights Watch’; available at http://www.africa.upenn.edu/Urgent_ Action/apic_52396.html (accessed 7 August 2013). 42 DO Aihe, ‘Fundamental Human Rights and the Military Regime in Nigeria: What Did the Courts Say?’ (1972) 15(2) Journal of African Law 213, 215. 43 Aihe (n 42), 216.

158  Colonial and Post-Colonial Constitutionalism in the Commonwealth 44 Aihe (n 42), 217. 45 Yakubu (n 8), 442; see Abacha v Fawehinmi (2000) 6 NWLR (Pt 660). 46 Falola and Heaton (n 3), 110–112. 47 Section 4 of the constitutions of the Northern Region, Western Region and Eastern Region; Schs 3, 4 and 5 to the Independence Constitution 1960. 48 Roger Blench, Selbut Longtau, Umar Hassan and Martin Walsh, The Role of Traditional Rulers in Conflict Prevention and Mediation in Nigeria: Final Report (DFID 2006), 72–75; available at http://www.rogerblench.info/Development/Nigeria/Conflict%20resolu tion/Final%20Report%20TRs%20September%2006.pdf (accessed 7 August 2013). It is interesting in this regard that the British applied the same system elsewhere in Africa as their successors. A striking example is South Africa where not only the colonial power, but also apartheid regimes exploited the system to perpetuate their power. See, e.g. Freddie Khunou, ‘Traditional Leadership and Independent Bantustans of South Africa: Some Milestones of Transformative Constitutionalism beyond Apartheid’ (2009) 12(4) PER/PELJ 1; available at http://www.saflii.org/za/ journals/PER/2009/19.html (accessed 24 October 2012). 49 Falola and Heaton (n 3), 110–111; Blench et al. (n 48), 76, detailing six such instances in Northern Nigeria. 50 Max Siollun, Oil, Politics and Violence: Nigeria’s Military Coup Culture (1966–1976) (Algora Publishing, New York, 2009), 21–27. 51 [1931] UKPC 37. 52 Suit No SC.126/97. The case arose in the period of military rule but the appeal was finally disposed in 2000, one year after the military had relinquished power. 53 Akuneziri v Okenwa (n 52), 40–44. 54 (1991) 4 NWLR (Pt 188). 55 Edict No 2 of 1975, Lagos State, s 9(3)(e). 56 Ayua and Dakas (n 2), 257. 57 Hakeem O Yusuf, ‘Robes on Tight Ropes: The Judicialization of Politics in Nigeria’ (2008) 8(2) Global Jurist 1; and Shola J Omotola, ‘“Garrison” Democracy in Nigeria: The 2007 General Elections and the Prospects of Democratic Consolidation’ (2009) 47(2) Commonwealth & Comparative Politics 194, 201–202. 58 Ayua and Dakas (n 2), 257. 59 Kayode Eso, Thoughts on Nigerian Jurisprudence (MIJ Publishers Limited, Lagos, 1990), 232. 60 Hakeem O Yusuf, ‘Calling the Judiciary to Account for the Past: Transitional Justice and Judicial Accountability in Nigeria’ (200) 30(2) Law and Policy 194. 61 See Yusuf (n 57) for a discussion on the judicialisation of politics in the post-­ authoritarian period in Nigeria. 62 Ladipo Adamolekun and S Bamidele Ayo, ‘The Evolution of the Nigerian Federal Administration System’ (1989) 19(1) Publius 157. 63 Adamolekun and Ayo (n 62). 64 Hakeem O Yusuf, ‘The Judiciary and Constitutionalism in Transition – A Critique’ (2007) 7(3) Global Jurist 1. See also Ayua and Dakas (n 2), 245–246. 65 Adamolekun and Ayo (n 62), 159–160. 66 Yusuf (n 57), 8–9. 67 Ayua and Dakas (n 2), 250–251. 68 Elaigwu (n 5), 76. 69 Nicole Steytler, ‘South Africa’s negotiated Compromise’, in Raoul Blindenbacher and Abigail Ostien, Dialogues on Constitutional Origins, Structure and Change in Federal Countries (McGill University Press, Montreal and Kingston, 2005), 36–37. 70 For similar arguments on the adoption of federalism in the Indian 1950 Constitution, see Akhtar Majeed, ‘India: The Emergence of Cooperative Federalism’, in Blindenbacher and Ostien (n 69), 23–24.

Adventurers in power 159 71 Nduka Ikeyi and Ofornze Amucheazi, ‘Applicability of Nigeria’s Arbitration and Conciliation Act: Which Field Does the Act Cover?’ (2013) 57(1) Journal of African Law 126, 130. 72 1960 No 1652, effective 1 October 1960. 73 Adamolekun and Ayo (n 62), 169. 74 Adamolekun and Ayo (n 62), 163. 75 Yusuf (n 57), 9. 76 Elaigwu (n 5), 73. The government has consistently expressed a preference for constitutional amendment as against civil society calls for a ‘sovereign national conference’. There have been ongoing moves to amend the Constitution. 77 Frank Dukes, ‘Public Conflict Resolution: A Transformative Approach’ (1993) 9(1) Negotiation Journal 45, 49. 78 Hakeem O Yusuf, ‘Oil on Troubled Waters: Multinational Corporations and Realising Human Rights in the Developing World, with Specific Reference to Nigeria’ (2008) 8(1) African Human Rights Journal 79, 80–84, discussing the violence in the Niger Delta and its national and global implications. 79 This was due, for the most part, to questionable composition and lack of independence of that forum: see International Crisis Group, Nigeria’s Faltering Federal Experiment (Crisis Group Africa Report No119, October 2006) 1, 4–5. 80 Ayua and Dakas (n 2), 256–257. 81 Falola and Heaton (n 3), 183–190. 82 Falola and Heaton (n 3), 209. At the eve of the departure of the military from government, Nigeria ranked fifth most corrupt country in a worldwide survey of 85 countries in 1998 during the last few months of military rule. See Transparency International, Transparency International Corruption Index 1998 (Berlin, 1999). 83 Ngozi Okonjo-Iweala, Reforming the Unreformable – Lessons from Nigeria (The MIT Press, Cambridge, MA, 2012), 2. 84 Yusuf (n 16), 110–111. 85 For an account of the administration’s agenda and its implementation by a notable insider, see Okonjo-Iweala (n 83), 81–93. 86 Established under the Corrupt Practices and Other Related Offences Act 2000, No 5 of 2000 87 Established under the Economic and Financial Crimes (Establishment) Act 2002, No 5 of 2002. It has been repealed by the Economic and Financial Crimes (Establishment) Act 2004 of 23 March 2004. 88 (2002) 6 SC (Pt I) 1. For a full discussion of the case, see Yusuf (n 57), 27–36. 89 Constitution of the Federal Republic of Nigeria 1999, s 15. 90 ICPC (n 88), 72. 91 ICPC (n 88), 61, per Justice Ogwuegbu. 92 ICPC (n 88), 116. 93 ICPC (n 88), 59, per Justice Ogwuegbu. 94 ICPC (n 88), 116. 95 Falola and Heaton (n 3), 271–274. 96 ICPC (n 88), 29. 97 R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs [2009] 1 AC 453. See Ch 6. 98 (1966) SCR 663 and [1896] AC 348 respectively; both discussed in Ch 2. 99 ICPC (n 88), 106. 100 ICPC (n 88), 130. 101 ICPC (n 88), 128. 102 ICPC (n 88), 131–132. 103 ICPC (n 88), 132. 104 Hakeem O Yusuf, ‘The Judiciary and Political Change in Africa: Developing

160  Colonial and Post-Colonial Constitutionalism in the Commonwealth

105 106 107 108 109 110 111 112 113 114 115 116 117 118 119 120 121 122 123 124 125 126 127 128 129 130 131 132 133 134 135 136 137 138 139 140 141 142 143 144 145 146 147 148 149 150 151 152

Transitional Jurisprudence in Nigeria’ (2009) 7(4) International Journal of Constitutional Law 654, 677–680. (2006) 7 NILR 71 at 1 (54). Revenue Monitoring (n 105), 1; for a discussion on this, see Yusuf (n 57), 8–27. Revenue Monitoring (n 105), 1. Revenue Monitoring (n 105), 4–5. Revenue Monitoring (n 105), 5–6. Revenue Monitoring (n 105), 8. Revenue Monitoring (n 105), 19. Revenue Monitoring (n 105), 92. Revenue Monitoring (n 105), 92 Revenue Monitoring (n 105), 21. Revenue Monitoring (n 105), 38. Revenue Monitoring (n 105), 25–26. Revenue Monitoring (n 105), 42 Revenue Monitoring (n 105), 41. Revenue Monitoring (n 105), 45. Revenue Monitoring (n 105), 4–45. (2003) 6 SC (Pt I) 24. Urban Planning (n 121), 58–60. Urban Planning (n 121), 34–35. Urban Planning (n 121), 35–37. Urban Planning (n 121), 44. Urban Planning (n 121), 39–40. Urban Planning (n 121), 41–52. Urban Planning (n 121), 74. Urban Planning (n 121), 74 (emphasis added). Urban Planning (n 121), 33. Urban Planning (n 121), 31. Urban Planning (n 121), 34. Urban Planning (n 121), 33. Urban Planning (n 121), 63–64. Urban Planning (n 121), 94. ICPC (n 88), 61. ICPC (n 88), 62. (2002) 3 SC 106. Electoral Act (n 138), 120. Electoral Act (n 138), 120. Electoral Act (n 138), 245–246. Electoral Act (n 138), 186–187. Revenue Monitoring (n 105), 5–6. Revenue Monitoring (n 105), 21. Revenue Monitoring (n 105), 22. Revenue Monitoring (n 105), 42. ICPC (n 88), at 59. Omotola (n 57), 223–225. Revenue Monitoring (n 105), 55. Revenue Monitoring (n 105), 55. John Ralston Saul, A Fair Country: Telling Truths about Canada (Penguin Group, Toronto, 2008), 111. See Ch 6.

5 Empire all over again – peace, order and good government in the United Kingdom and its territories

The common supposition is that peace, order and good government (POGG) does not apply in the United Kingdom, at least not in this most common phrasing of it. However, I have already indicated that POGG has its origins in the British Isles and at least historical application through the Justices Act 1489; very important Tudor era legislation made for facilitating better governance in England (and Wales from 1543).1 True, the POGG power does not now apply across the United Kingdom but it has had important territorial application of a constitutional nature in Northern Ireland – an integral part of it.2 POGG applied in Northern Ireland while the Government of Ireland Act 1920 (‘1920 Act’)3 was in force until direct rule was introduced there in 1972 through the Northern Ireland (Temporary Provisions) Act 1972. However, the POGG clause is not included in the post-1998 devolution arrangements for Northern Ireland4 or, for that matter, Scotland5 and Wales.6 This makes the constitutional modality for devolution in the United Kingdom radically different from that bequeathed to the other parts of the Commonwealth and, certainly, from that adopted with respect to colonies of the United Kingdom both current and former. Commenting on the practice in this regard, Lord Carswell observed in R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 2) (‘Bancoult No 2 (HL)’)7 that POGG is ‘a standard provision when legislative power is devolved’.8 It remains an unexplored point of interest that the practice has not been adopted in the current devolution practice in the United Kingdom itself. However, even before the application of POGG in Northern Ireland, it had found its way back to the British Isles by the 1700s. It featured in at least a few statutes in England and Wales following its odyssey and linguistic transformation discussed in Chapter 1. This dispels any doubt that it directly applied in Great Britain, although only at a statutory level. Equally relevant is the fact that ‘peace, order and good government’ continues to have at least institutional application and connection with the United Kingdom – in the legal and constitutional arrangements of the UK’s ‘possessions’ (colonies) in various parts of the world. Most of these are now referred to as ‘overseas territories’. The constitutional implications of the retention and application of the POGG clause in the context of the legislative and constitutive arrangements of these territories firmly recall the imperial origins of the power. There is, in

162  Colonial and Post-Colonial Constitutionalism in the Commonwealth addition, as discussed in Chapter 1, the complementary issue of the royal prerogative to which the POGG is constitutionally connected. The Bancoult litigation, discussed extensively below, speaks excellently to both issues.9 Furthermore, there is an institutional dimension to the connection of the United Kingdom with the POGG clause deriving at least partly from the foregoing point about British overseas territories. Central to this institutional dimension is the consequential involvement of the judiciary. There is the continuing influence of the Judicial Committee of the Privy Council (JCPC) as the supreme tribunal for the British Empire and some Commonwealth jurisdictions. The direct involvement of the regular British courts in the interpretation of the political application of POGG is also germane. This is again well-demonstrated by the Bancoult litigation. Thus, in at least a general sense of the word, POGG did apply in the United Kingdom, and remains recognised if not currently applied. The discussion in this chapter proceeds as follows. The first part focuses on the application of POGG in England and Wales. It also examines the introduction and application of POGG in Northern Ireland as part of devolution arrangements in the United Kingdom. The introduction of the POGG clause for this purpose is unique to Northern Ireland in the United Kingdom, and, again, has links with colonial rule. The second part critically analyses the Bancoult litigation as a reflection of the imperial origins and applications of the POGG power specifically in the context of a British colony in this contemporary period. The Bancoult litigation, I will argue, provides a poignant vindication of the imperial origin and colonial trappings of the POGG clause in Commonwealth constitutionalism. I conclude as a prelude to the discussion in Chapter 6 that the Bancoult litigation supports the argument that POGG should either be interpreted objectively or discarded in Commonwealth constitutionalism.

Devolution and peace, order and good government in the United Kingdom England and Wales As discussed in Chapter 1, following its initial roots in the Justices Act 1489, POGG passed through a process of linguistic transformation that appears to have occurred mainly in a colonial context through the British Empire’s colonies from the British North American Territories (in present day United States and Canada) to India from the sixteenth century through to the eighteenth century. Interestingly, by the 1700s, following the linguistic transformation, POGG had found its way back to legislation in the British Isles, specifically in England and Wales. For instance, in 1710, during the reign of Queen Anne, Parliament passed ‘An Act for rendering the Proceedings upon writ of Mandamus and Informations in the Nature of a Quo warranto more speedy and effectual, and for the more easy trying and determining the Rights of Offices and Franchises in Corporations and Boroughs.’10 This was to speed up mandamus proceedings which were dilatory and expensive against illegal claimants to offices of mayors, bailiffs, portreeves

Empire all over again 163 and others in many cities, towns corporate, boroughs and places in England and Wales. Such illegal claimants, the preamble to the Act noted, had successfully deprived many rightful holders of such offices and, where those offices had an annual tenure, it was very difficult if not impracticable to bring the right to trial within a year. The preamble further recited that even where the tenure of such offices was not annual, it remained difficult to bring the right to trial before the illegal claimants had ‘done diverse acts in their said offices prejudicial to the peace, order, and good government within such cities, towns corporate, boroughs and places, wherein they have respectively acted’ (emphasis added). Similarly, in 1725, during the reign of George I, a major election statute in London passed in the eleventh year of his reign was entitled ‘An Act for regulating elections within the city of London, and for preserving the peace, good order, and government of the said city’.11 Like the mandamus legislation, the preamble to this Act also suggested a literal meaning of POGG. It identified that an ancient custom within the city restraining freemen from disposing of their personal estates by last wills and testaments discouraged wealthy traders, artisans and other professionals from becoming freemen of the city. This custom meant that ‘great controversies and dissensions have arisen in the city of London at the elections of citizens to serve in Parliament, and of mayors, aldermen, sheriffs, and other officers of the said city’. The Act declared that the custom was ‘in manifest violation of the right and privileges of the citizens and of the freedom of their elections and to the disturbance of the public peace’ (emphasis added). It made provisions in section 7 for ‘quieting all such disputes and controversies for the future’. These two instances reinforce the claim that the roots of POGG began in the United Kingdom and highlight how, contrary to the colonial contexts (including in Northern Ireland), the power was applied in its objective sense which, I will argue in Chapter 6, is the historiographical, orthodox meaning, though not now prevalent in the Commonwealth. However, the Northern Ireland experience provides opportunity for evaluating constitutional application of the POGG clause and its purport in the United Kingdom. Northern Ireland Devolution in ‘a state of unions’ and history of POGG in Northern Ireland In order to understand the application of POGG in Northern Ireland, it is useful to provide a very brief account of the context of its introduction into that part of the United Kingdom: devolution. The modern United Kingdom is ‘a state of unions’12 or a ‘multi-national state’13 comprising England, Wales, Scotland and Northern Ireland, what Richard Rose referred to as ‘a composite of jurisdictions joined in one state’.14 There was first the union of England and Wales in 1536 and the further union with Scotland in 1707 forming Great Britain.15 This was followed by the further Union of Great Britain with Ireland in 1800 through the Union Act 1800.16 As a result of the latter union, Ireland was an integral part of the United Kingdom from 1801 to 1921. It was not administered as a colony,

164  Colonial and Post-Colonial Constitutionalism in the Commonwealth Dominion or occupied territory but ‘governed exactly as the rest of the United Kingdom’.17 However, some of the population were not satisfied with the Union, preferring an independent Ireland instead. That preference was actualised (at least in part) after the partition of Ireland into North and South by the 1920 Act.18 Northern Ireland remained part of the United Kingdom following the promulgation of the 1920 Act and subsequent withdrawal of Southern Ireland from the Union following the creation of the Irish Free State, Eire, in 1922 (and later the Republic of Ireland in 1949, although it acquired a new Constitution in 1937).19 The 1920 Act formed part of a series of moves by the British Parliament for the ‘constitutional settlement of the Irish question’, the issue of Home Rule in Ireland, between 1886 and 1920.20 As Harry Calvert observed, in the 100 years following the 1800 Act of Union, there was anything but quiescence to the continued union of Ireland (inclusive of Northern Ireland) and Britain; but instead there were years in which the ‘Irish Question’ dominated much of British politics.21 Previous attempts included Gladstone’s first and second Home Rule Bill of 1886 and 1894 rejected at the second reading in the House of Commons and the House of Lords after passage in the House of Commons respectively, and the Government of Ireland Act 1914.22 All contained the POGG clause with respect to the law-making powers of Parliaments for Ireland.23 Devolution is now a central feature of governance in the United Kingdom but it is a product of differing socio-political circumstances. In Scotland and Wales, devolution flowed essentially from a sense of lack of legitimacy for centralised rule, but devolution in Northern Ireland arose mainly from support and opposition to Irish Home Rule.24 Direct rule from Westminster was introduced from 1972 with the prorogation of the Northern Ireland Assembly, in response to waves of violence and conflict (‘the troubles’).25 Following the Belfast Peace Agreement (‘Belfast Agreement’ or ‘Good Friday Agreement’) of 1998, which sought to bring an end to sectarian or ethnic conflict26 between the two sections of the community – Protestants and Catholics – devolution in Northern Ireland has moved closer to the current position in Scotland and Wales.27 The 1920 Act was meant to devolve power to the two parts of Ireland with separate Parliaments and governments. It was amended in form but not in substance to render it applicable only to Northern Ireland following the breaking away of Southern Ireland.28 The historical experience of the formation of the unions (resulting in the United Kingdom of Great Britain and Northern Ireland) which occurred at different times has played a key part in each of the components retaining its distinctiveness.29 Under the UK’s devolved government policy, the Northern Ireland Parliament created by the 1920 Act was vested with the power of ‘peace, order and good government’, and functioned from 1921 to 1972. It passed a considerable number of laws, some of which still apply in Northern Ireland today.30 The mention of the POGG power in section 4(1) of the 1920 Act made Northern Ireland (and, up to a point, Southern Ireland) the only part of the United Kingdom, as James Mitchell pointed out, with a constitutional arrangement ‘modeled after Britain’s imperial experience’.31 Calvert similarly noted in this regard that the constitutional arrangement establishing

Empire all over again 165 Northern and Southern Ireland by the 1920 Act was ‘in many ways’ similar to ‘an advanced stage of responsible government to be found in many of the developed colonies of the British empire’.32 This may be linked to the historical fact that Ireland, rather than North America, ‘was the first site for English colonization and plantation’.33 The POGG clause is not mentioned in the constitutional arrangements or instruments of any other devolved government in the United Kingdom. Indeed, a feature of the post-1972 period is the exclusion of the POGG power in the relevant constitutional instruments of Northern Ireland. Thus, there is no mention of POGG in the Northern Ireland (Temporary Provisions) Act 1972, the Northern Ireland Act 1974 (the direct rule Act mentioned earlier) or, for that matter, the Northern Ireland Assembly Act 1973,34 the Northern Ireland Constitution Act 1973,35 the Northern Ireland Act 1998 (‘NIA 1998’) (which repealed the Government of Ireland Act 1920 and was enacted ‘to make new provision for the government of Northern Ireland for the purpose of implementing the agreement reached at multi-party talks on Northern Ireland’) or the Good Friday Agreement. Thus, POGG as a feature of the constitutional arrangements in Northern Ireland is a product of the distinctiveness of the component parts of the union identified earlier and it is now apt to examine the constitutional experience of POGG in the Province. Chequered application: peace, order and good government in Northern Ireland The origin of the POGG power in the British Isles and, by extension, the United Kingdom, has been discussed in Chapter 1. The focus here is on the application of the POGG power in Northern Ireland with its own devolved government as an integral part of the United Kingdom. As indicated earlier, the 1920 Act, intended as ‘An Act to provide for the better government of Ireland’, introduced the POGG clause to Northern Ireland. The provisions of the 1920 Act relating to Northern Ireland are of specific interest here inasmuch as it served as the constitution of the Province for the period.36 It established a bicameral Parliament for Northern Ireland, and a Senate and House of Commons, alongside an executive led by a governor who was the representative of the Crown. This was typical of the constitutive structure of the Dominions and, indeed, the expressed intention from Westminster was to accord the status of a Dominion to Ireland, and specifically one modelled after Canada. Section 4(1) of the 1920 Act provided that the Parliament of Northern Ireland shall: have power to make laws for the peace, order and good government of … Northern Ireland with the following limitations, namely, that they shall not have power to make laws except in respect of matters exclusively relating to the portion of Ireland within their jurisdiction or some part thereof, and (without prejudice to that general limitation) that they shall not have power to makes laws in respect of the following matters in particular, namely …

166  Colonial and Post-Colonial Constitutionalism in the Commonwealth Various matters were then enumerated including trade with any place out of Northern Ireland, issues affecting the Crown, the making of peace or war, the armed forces, as well as legislation that would affect religious equality.37 Unlike the experience in other Dominions in the British Empire, like Canada, Australia and, to lesser extent, New Zealand, judicial consideration of the POGG clause was sparse in both sides of Ireland and not particularly illuminating on the meaning and scope of the power. Scholarly discussion of it is also very limited. Shortly before its demise, the House of Lords observed that while the POGG power in section 4(1) of the 1920 Act received some consideration regarding Northern Ireland, there was no resolution of the plenitude of the power conferred by it.38 Gallagher v Lynn (‘Gallagher’)39 is the most notable case on POGG in Northern Ireland. It concerned the validity of the Milk and Milk Products (Northern Ireland) Act 1934 (‘Milk Act’), passed by the Northern Ireland Parliament. The appellant was a dairy farmer in County Donegal, in the Irish Free State. For many years he had carried on business and had been selling milk by retail in the city of Londonderry in Northern Ireland. Section 1 of the Milk Act required producers and or distributors of milk to obtain a licence from the Ministry of Agriculture. After the passing of the Milk Act, the appellant applied for, but was refused, a producer’s licence so as to enable him to continue to sell milk in Londonderry. His application was refused by the Ministry of Agriculture on the ground that licences under the Milk Act could be granted only to persons whose dairies where the milk was produced were situate in Northern Ireland. As the appellant continued to sell milk in Londonderry without having obtained a licence under the Act, proceedings were taken against him and he was convicted. His appeal to the Northern Ireland Court of appeal was not successful. He argued that the Milk Act was ultra vires because it interfered with trade outside Northern Ireland – a subject over which the Northern Ireland Parliament lacked jurisdiction under section 4(7) of the 1920 Act. Affirming the decision of the Court of Appeal of Northern Ireland in Rex v Gallagher,40 the House of Lords rejected the argument on the basis that, although the legislation might incidentally affect trade with County Donegal, it was not ‘in respect of’ trade within the meaning of section 4(7) of the 1920 Act. Their Lordships held that the law was intended to safeguard public health by requiring all suppliers of milk sold in Northern Ireland to be licensed. The Law Lords held that the Milk Act was an Act for the ‘peace, order and good government’ of Northern Ireland ‘in respect of’ precautions for securing the health of the inhabitants of Northern Ireland through protecting them from the dangers of an unregulated supply of milk.41 The Act was therefore within the competence of the Parliament of Northern Ireland, although its provisions precluded a person whose premises were outside Northern Ireland from obtaining a licence for the sale of milk in the Province. This was within the competence of the Stormont Parliament (now the Northern Ireland Assembly at Stormont), although the legislation had an incidental effect on cross-border trade. Lord Atkin (with whom Lords Thankerton, Macmillan, Wright and Maugham concurred), referring to the Canadian experience and in particular Russell v The

Empire all over again 167 Queen,42 adopted the ‘pith and substance test’ – the true nature and character of the legislation in issue – in determining the validity of the Milk Act.43 According to Lord Atkin, this was central to determining whether the Parliament had the competence to pass such impinging legislation. According to the Law Lords, ‘If, on the view of the statute as a whole, you find that the substance of the legislation is within the express powers, then it is not invalidated if incidentally it affects ­matters which are outside the authorized field.’44 Calvert, however, has doubted the appropriateness of the application of the pith and substance test in the Northern Ireland context since it had a very different constitutional setting to that of Canada. He considered Lord Atkin’s adoption of the pith and substance test in the case superfluous. As Calvert rightly notes, the importation of the doctrine based on the analogy of limitation of the powers of subordinate legislatures ‘breaks down at a point not considered by Lord Atkin’.45 It misses a critical feature of the legislative provisions of the British North America Act 1867 (‘BNA Act’) regarding the style in which powers of the Canadian (Dominion) Parliament as against that of the provinces are set out in sections 91 and 92 respectively. Section 91 enumerates the powers of the Canadian Parliament and mentions the POGG power, which has a residual effect. Section 92 sets out the subject heads of power of the provinces. So the Canadian constitutional setting is one of double enumeration, as discussed earlier.46 This contrasts with the constitutional arrangement in Northern Ireland since section 4 of the 1920 Act did not enumerate the heads of power of the Northern Ireland Parliament but rather sets out express limitations; it is in effect a ‘single enumeration model’.47 There is the further distinction that the central legislature, the Westminster Parliament, has no enumerated list at all.48 Suffice it to say that Gallagher, despite its constant citation in regard to the application of the POGG clause in Northern Ireland, does not dwell directly on the meaning of the clause. As Lord Carswell pointed out obiter in Bancoult No 2 (HL), ‘the House [of Lords] did not pronounce upon the appellant’s argument that the power to make laws for the peace, order and good government was limited’.49 In Duffy v Ministry of Labour and National Insurance50 the appellant was convicted of knowingly employing a person who was not a Northern Ireland worker contrary to section 2 of the Safeguarding of Employment Act (Northern Ireland) 1947. The legislation was enacted to safeguard the employment of Northern Ireland workers and was obviously to the detriment of others who did not so qualify. The appellant argued on appeal that the material provisions of the Act contravened the limitations imposed on the powers of the Northern Ireland Parliament by section 4 of the Government of Ireland Act 1920 – the POGG clause – and were therefore invalid. The Court of Appeal of Northern Ireland held that the ‘pith and substance’ of the 1947 Act was to safeguard the employment of Northern Ireland workers. Lord MacDermott LCJ held that this was clearly within the power to make laws for the POGG of Northern Ireland. Thus, here again, consideration of the meaning or nature of POGG turned essentially on the pith and substance test set out by Lord Atkin in Gallagher rather than a direct definition of the power.

168  Colonial and Post-Colonial Constitutionalism in the Commonwealth In general, it is fair to say that the traditional or so-called orthodox view of the POGG power, namely that it entails conferral of plenary authority for making legislation (the subjective view), held sway in Northern Ireland. Indeed, Lord Carswell claimed in Bancoult No 2 (HL) that ‘there was no successful challenge during the period (some 50 years) of existence of the Parliament of Northern Ireland to any statutory provision on the ground that it fell outside the general power conferred by section 4 of the 1920 Act’.51 While noting Calvert’s proposition that, in an appropriate case, there was possibility of a successful challenge on the limitation of the POGG power in Northern Ireland,52 Lord Carswell dismissed the proposition on the contention that ‘its absence is at least negative evidence against the correctness of the suggestion’.53 However, at least one case casts doubt on Lord Carswell’s position: Reg (Hume) v Londonderry Justices (‘Hume’).54 The decision in Hume at least requires a caveat on the position of Lord Carswell. Hume relates to the Civil Authorities (Special Powers) Acts (Northern Ireland).55 While analysing devolution in the United Kingdom, Mitchell stated that ‘of the three bases of the old devolved system of government in Northern Ireland, peace and order have been the dominant concerns, and good government and concern for public policy matters have been at best secondary’.56 Colin Turpin and Adam Tomkins equally observed that ‘civil liberties were not well-protected during this period’. In this regard, they identified the Civil Authorities (Special Powers) Act, which was enacted by the Northern Ireland Parliament in 1922 as the main legal instrument implicated in the establishment of ‘wide-ranging system of controls, including powers of arrest, search, internment and the banning of organisations’.57 This was the context of the facts and decision in Hume. The Civil Authorities (Special Powers) Acts were enacted by the Parliament of Northern Ireland to empower certain authorities of the government of Northern Ireland to take steps for preserving the peace and maintaining order in Northern Ireland. Specifically, section 1(2) of the Civil Authorities (Special Powers) Act (Northern Ireland) 1922 appointed the Minister of Home Affairs as ‘the civil authority’, while section 1(3) conferred powers on the Minister to make further regulations for the preservation of ‘the peace and maintenance of order’. The legislation was enacted by the Parliament of Northern Ireland, in exercise of its powers under section 4(1) of the 1920 Act to make laws for the ‘peace, order and good government’ of Northern Ireland. The Minister, by a regulation made in a statutory rule and order, authorised certain members of Her Majesty’s forces to require an assembly of persons to disperse if a breach of the peace was apprehended.58 On 8 September 1971 five persons, members of the Social Democratic and Labour Party (SDLP), were charged and convicted at the magistrates’ court in Londonderry for contravening the regulations. The convicted persons applied to the High Court for orders of certiorari to quash the convictions on the grounds that, having regard to section 4(1)(3) of the Government of Ireland Act 1920 it was outside the competence of the Northern Ireland Parliament to make laws for the ‘peace, order and good government’ of Northern Ireland. It was also contrary to the power of the Minister of Home Affairs under section 1(3) of the Civil

Empire all over again 169 Authorities (Special Powers) Act (Northern Ireland) 1922 to make regulations for the preservation of the peace and the maintenance of order. The regulation, it was further argued, was unduly far-reaching and oppressive. The court held that section 4(1) of the Government of Ireland Act 1920 imposed a limitation on the Parliament of Northern Ireland by specifying that it did not have the power to make laws in respect of the matters set out in the subsection. Section 4(1)(3) stated that the Parliament did not have power to make laws in respect of the navy, the army, the air force, the territorial army or any other naval, military, or air force, or the defence of the realm, or any other naval, military or air force matter. This precluded the Minister making a regulation under the Civil Authorities (Special Powers) Act (Northern Ireland) 1922, which purported to confer powers on officers and members of Her Majesty’s forces on duty. Consequently, the provisions of the regulation purporting to confer powers on the members of the armed forces were void. The court had rejected the respondent’s pith and substance argument that the regulation was for the ‘peace, order and good government’ of Northern Ireland and that the conferral of powers on members of the armed forces was merely incidental. Lowry LCJ stated that both the object and the method of achieving peace, order and good government must be valid.59 Since the method in this case had been expressly forbidden (involving members of her Majesty’s forces excluded from the legislative remit of the Parliament), the regulation could not be rescued from its invalidity simply because it was for a permitted object. An interesting point to be noted from this case is how it at least implicitly challenges the common uncritical approach to the interpretation of the POGG power as a plenary power affording latitude to the conferee (legislative or executive) to legislate or act in a subjective manner. However, in a bid to ensure that those who were detained under the regulations were not released, within seven hours of the judgment the Westminster Parliament passed the Northern Ireland Act 1972.60 This was an ‘Act to declare the law as to the legislative powers of the Parliament of Northern Ireland under section 4(1) of the Government of Ireland Act 1920, so far as relates to Her Majesty’s forces and in particular to the conferment of powers, authorities, privileges or immunities on them’. This indemnified the executive action of deployment of soldiers and legalised arrests made by members of the armed forces as contemplated by the regulations, thus passing retrospective legislation to remedy the perceived limitation of POGG-based legislation and thereby changing the law right back to 1922. It provided that: The limitations imposed by paragraph (3) of section 4(1) of the Government of Ireland Act 1920 on the powers of the Parliament of Northern Ireland to make laws shall not have effect, and shall be deemed never to have had effect, to preclude the inclusion in laws made by that Parliament for the peace, order or good government of Northern Ireland of all provision relating to members of Her Majesty’s forces as such or to things done by them when on duty, and in particular shall not preclude, and shall be deemed never to have precluded, the conferment on them by, or under or in pursuance of any such law of

170  Colonial and Post-Colonial Constitutionalism in the Commonwealth powers, authorities, privileges or immunities in relation to the preservation of the peace or the maintenance of order in Northern Ireland. This gave it the distinction of not only been a hasty piece of retrospective legislation but also the last that contained reference to the POGG power in Northern Ireland. In light of this dramatic response to the decision in Hume, one would have expected advertence to it with reference to POGG in Northern Ireland as that made obiter by Lord Carswell in light of Calvert’s position. This is particularly relevant when it is remembered that Calvert’s proposition was stated in his book published in 1968 – four clear years before Hume. But, more than that, it is strange that Lord Carswell could have missed out on Hume given his direct and personal connection with the case. Lord Carswell had been Crown Counsel in Hume. He handled the prosecution in the case and secured the conviction that led to the appeal to the High Court as well as the appeal itself. Indeed, his Lordship described his experience of the prosecution of the defendants in Hume, the appeal as well as his subsequent role in the events that followed, including a planned further appeal to the House of Lords in a lecture he delivered (while Lord Chief Justice in Northern Ireland) on human rights and the rule of law at an international conference in Canada in 1999.61 In his ‘personal view’ account, he had described Hume as an example of the type of case that ‘caused difficulties for the Government, even caused administrators to tear their hair in fury and dismay’.62 Surely, advertence to Hume would, at the least, have enriched the discourse on the limits or otherwise of POGG, particularly in view of the fact that it emanated from the United Kingdom and only political intervention prevented their Lordships from having to hear a further appeal on it. More recently, Bancoult, one of the very last cases heard by the House of Lords and, incidentally, also by Lord Carswell (having retired in 2009) dramatically revived the institutional engagement with POGG in the United Kingdom taking it all the way back to the Empire.

Back to Empire – the Bancoult litigation63 Background The Bancoult litigation, as earlier indicated, is a story of a paradise lost. It concerns the deportation of the Ilois of the Chagos Archipelago.64 The Chagos Archipelago, in the middle of the Indian Ocean, along with Mauritius, was ceded by France to Great Britain in 1814 through the Treaty of Paris (a treaty of ‘peace and amity’ aimed at ending the various wars in Europe between France, on one hand, and Britain and her allies, on the other). The Chagos Archipelago was governed until 1965 as part of the British colony of Mauritius, though Mauritius itself is some 1,000 to 1,200 miles from the archipelago. The biggest of the islands is Diego Garcia. For as long as 200 years or more, the Ilois, an indigenous people, inhabited the islands, living a simple, largely self-sufficient life as fishermen and farmers, occasionally visiting Mauritius and other islands. As many as five generations were born and died on the islands.

Empire all over again 171 Changes in the 1960s sowed the seeds that instigated the Bancoult litigation. The initiating case in the Bancoult litigation was entirely procedural. It was for leave to commence judicial review proceedings, which was granted by Scott Baker J to the applicant in R v Secretary of State for the Home Department ex parte Bancoult (‘R v Bancoult’).65 The first substantive matter was R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (‘Bancoult No 1’).66 The government of the United Kingdom agreed to lease Diego Garcia to the United States for the establishment of a major American military base. This was to be for an indefinite period but starting with at least 50 years. The facility, as Lord Justice Laws found, remains a ‘defence facility … of the highest importance’ and was described in 2001 by the US Department of State as ‘“an all but indispensable platform” for the fulfilment of defence and security responsibilities in the Arabian Gulf, the Middle East, South Asia and East Africa’.67 In fact, it played the most crucial role in virtually all US military forays in the Middle East and in particular, the despatch of US military forces to Iraq during the two Gulf wars as well as the Afghan war. It is the most important military outpost of the United States.68 In 1965 the applicant, Louis Olivier Bancoult, like others, was a citizen of the United Kingdom and colonies pursuant to the British Nationality Act 1948. With the imminence of Mauritius’ independence, the British government first separated the Chagos Archipelagos from Mauritius and constituted it (together with certain other islands) into a separate colony to be known as the ‘British Indian Ocean Territory’ (BIOT) to ensure continued British control of the archipelago and facilitate the establishment of the base. This was to forestall a Mauritian claim of sovereignty over the archipelago69 and was done through the British Indian Ocean Territory Order 1965 (‘the BIOT Order’) enacted under the royal prerogative.70 Section 4 of the BIOT Order established the Office of Commissioner (‘the Commissioner’) for the territory to be appointed by the Queen ‘by Commission under Her Majesty’s Sign Manual and Signet’ vested with powers of government to be exercised ‘according to such instructions, if any, as Her Majesty may from time to time deem fit to give him’.71 Consequently, the Queen appointed the Commissioner with powers which effectively made him not only the executive authority of the BIOT, but also its legislature with powers to make laws for the ‘peace, order and good government’ of the BIOT. Bancoult, who lived on Peros Banhos, travelled to Mauritius with his family in 1967 to obtain medical treatment for his sister. On their attempt to return, they were told that there were no more communications with the Chagos Islands and ships had stopped going there. The family had no option but to remain in Mauritius, being left to fend for themselves without housing or social security provision. The Ilois experienced harsh social conditions in Mauritius as they had been deprived of their established way of life without alternative provisions; they almost invariably became destitute without regular income and proper housing. Whatever provisions were made for them were either delayed by the government of Mauritius or did not get to most of the Ilois at all.72 Other Ilois made short-term visits to Mauritius during the period 1967 to 1971 only to find that they too were prevented from returning to the islands. Those who remained in Diego Garcia

172  Colonial and Post-Colonial Constitutionalism in the Commonwealth were removed to the outer islands during 1971. Final removals, including those from Peros Banhos and other outlying islands, took place in 1973. This exiling was carried out under the Immigration Ordinance 1971 (‘the 1971 Ordinance’) made by the Commissioner purportedly acting under powers conferred on him by section 11 of the BIOT Order to make laws for the ‘peace, order and good government’ of the BIOT. In view of its ‘critical importance to the central arguments in the case’,73 it is useful to set out relevant parts of section 11 of the BIOT Order: (1) The Commissioner may make laws for the peace, order and good government of the Territory, and such laws shall be published in such manner as the Commissioner may direct. (2) Any laws made by the Commissioner may be disallowed by Her Majesty through a Secretary of State. (3) Whenever any law has been disallowed by Her Majesty, the Commissioner shall cause notice of such disallowance to be published in such manner as he may direct. Section 19 of the BIOT Order ‘reserved to Her Majesty full power to make laws from time to time for the peace, order and good government of the British Indian Ocean Territory (including, without prejudice to the generality of the foregoing, laws amending or revoking this Order)’. It is interesting to observe in passing how these provisions echo imperial legislation containing the POGG power in the British Empire. Further, the provisions of the 1971 Ordinance were critical in authorising the expulsion of the Ilois. Section 4 provided that: (1) No person shall enter the Territory or, being in the Territory, shall be present or remain in the Territory, unless he is in possession of a permit or his name is endorsed on a permit in accordance with the provisions of section 5 and section 7 of this Ordinance respectively. (2) The provisions of this section shall not apply to members of Her Majesty’s Forces, or to persons in the public service of Seychelles or the Territory or in the service of any of Her Majesty’s Departments of State, while on duty, or to such other persons as may be prescribed. Section 9 provided that it was unlawful for any person to enter the BIOT, be present or remain in it in contravention of the provisions of section 4 of the Ordinance, while section 10 further provided for the temporary or permanent removal of defaulters. Bancoult No 1 – tapestry with borders The applicant, along with many of the Ilois resident in Mauritius, challenged the legality of the 1971 Ordinance and sought to establish the right to return to the islands, whether for occasional or regular visits or more extended residence. The

Empire all over again 173 Ilois recognised that defence and security considerations limited their ability to visit or remain in the restricted area of Diego Garcia but believed that those considerations did not apply to the outlying islands in the archipelago. The principal issue in the case, as Lord Justice Laws framed it, was ‘whether there was any lawful power to remove the Ilois from BIOT, in the manner in which that was done?’74 The matter, as will be further discussed below, eventually turned on whether the exiling of the population was lawful as a proper exercise of the POGG power. At the onset of the litigation, the preference of the British government was to object on procedural grounds on the basis of the principle of forum non conveniens; that the case ought not to be heard in the courts of the United Kingdom but rather in the BIOT. Neither Scott Baker J in R v Bancoult nor Laws LJ and Gibbs J were convinced about the jurisdictional objection. Similar to the decision in R v Bancoult, Laws LJ and Gibbs J reasoned rightly, in my view, that the applicant was not likely to succeed in any attempt to institute a case in the BIOT rather than London since it concerned the actions of the UK government and its international obligations (mainly to the Americans).75 An alternative argument made in this regard by the British government was that the proper court for hearing the case, if not those of the BIOT, was the Judicial Committee of the Privy Council (JCPC). This was also rejected for the same reason. This highly political move was of further significance regarding the judicial role of the JCPC in the Empire and Commonwealth and I return to it later.76 The central argument of the applicant was that the Crown had no prerogative power to exclude British nationals from British territory and, particularly relevant for this discourse, that the power of the Commissioner for the BIOT to make laws for the peace, order and good government of the BIOT was broad but not unlimited. It was strongly counter-argued for the British government that ‘the formula “peace, order, and good government”, used so often in measures conferring powers to make colonial law, was to be taken as having the widest possible intendment’.77 The argument of the applicant against the exiling of the Ilois was premised on three substantive grounds. The first ground was that section 4 of the Ordinance was in violation of the rights and liabilities guaranteed to the applicant by the Magna Carta. Specifically, the applicant called in aid cap. 29 of the Magna Carta which, in its modernised text (also used by the court), states that: No freeman shall be taken or imprisoned, or be disseised of his freehold, or liberties, or free customs, or be outlawed, or exiled, or any other wise destroyed; nor will we pass upon him, nor condemn him, but by lawful judgment of his peers, or by the law of the land. We will sell to no man, we will not deny or defer to any man either justice or right. The contention was described as ‘the most florid’.78 Laws LJ doubted whether the Magna Carta followed the flag into the BIOT and, even if it did, it was not helpful to the case of the applicants. Ambivalently, though, the court still left unanswered the question whether the Magna Carta applied or otherwise in the BIOT. According to Laws LJ’s admission:

174  Colonial and Post-Colonial Constitutionalism in the Commonwealth But it is very important to notice that, as I see the matter, the Magna Carta is in truth the first general declaration … in the long run of our constitutional jurisprudence, of the principle of the rule of law… So far as it is a proclamation of the rule of law, it may indeed be said to follow the flag – certainly as far as BIOT.79 Its inability to ‘provide an answer’80 on the facts of the case is puzzling. The declared impotence of the Magna Carta in the context speaks to either doubtful eminence or selective application of the Magna Carta, and both propositions are problematic. This is important for what it tells us about the continued hold of colonial law at points where it ought to be displaced or, at least, simply ignored in light of socio-legal developments in the twentieth and twenty-first centuries. Non-reliance on the application of the Magna Carta in relation to what is clearly an action of the UK government based on the niceties of the arcane distinction of whether the territory in issue was settled or ceded is significant. The distinction briefly stated derives from the position in colonial law that whereas the monarch has sovereign legislative powers over a ceded or conquered colony as long as it does not have a legislature, settlers are deemed to take their laws with them to any settled colony. As a result, the Magna Carta will only follow Englishmen wherever they go. As Tomkins notes, when this distinction is subscribed to by an otherwise: ‘usually adventurous and bold judge such as Laws L.J.’ it is a timely reminder that the evils of this country’s imperial heritage are not exclusively of the past. Both the colonial control and the mischief of the typically imperial ‘one rule for us but an inferior one for them’ continue – even into the twenty-first century.81 The second argument canvassed for the applicant was that the court ought to apply the so-called Witham principle to strike down the 1972 Ordinance. The Witham principle was formulated by Laws LJ in R v Lord Chancellor ex parte Witham.82 In Witham the right of access to the Queen’s courts was effectively withheld from those who could not pay court fees by a subordinate instrument which was ostensibly based on a primary legislation whose provisions were generally worded. The Divisional Court struck down the relevant part of the subordinate legislation. Simply stated, the Witham principle is that in the context of parliamentary supremacy with an unwritten constitution like that of the United Kingdom, a fundamental or constitutional right could only be abrogated by the executive where that was specifically authorised by an Act of Parliament but not through subordinate legislation. Such rights will be construed as predating the democratic political system itself; deriving from the common law.83 It is thus curious that Witham did not assist the case of the applicant. In Bancoult No 1, as in Witham, the challenged legislation was an executive act based on executive powers (here, the prerogative) without the scrutiny or concurrence of Parliament to deny a fundamental right (of ‘belongers’ not to be exiled). The third argument made for the applicant related to the legality of the 1971 Ordinance as being for the ‘peace, order and good government’ of the BIOT. The

Empire all over again 175 applicant challenged this successfully. Laws LJ (Gibbs J concurring) held that a power to legislate for the peace, order and good government of the BIOT did not include a power to exile all the inhabitants. The ‘peace, order, and good government’ of any territory means ‘nothing, surely, save by reference to the territory’s population. They are to be governed: not removed.’84 The ‘high political reasons … dictated by pressing considerations of military security’ could not ‘reasonably be said to touch the peace, order and good government of BIOT’.85 In other words, the 1965 Order in Council, under which the 1971 Ordinance was made, was limited to the governance, and not exiling, of the population. Laws LJ stated further that: the authorities demonstrate beyond the possibility of argument that a colonial legislature empowered to make law for the peace, order and good government of its territory is the sole judge of what those considerations factually require. It is not obliged to respect precepts of the common law, or English traditions of fair treatment … But the colonial legislature’s authority is not wholly unrestrained. Peace, order and good government may be a very large tapestry, but every tapestry has a border.86 In his concurring opinion, Gibbs J equally emphasised the need to accord primacy to ‘the ordinary meaning of language’.87On this view of POGG: Each of the words ‘peace’, ‘order’ and ‘good government’ in relation to a territory necessarily carries with it the implication that citizens of the territory are there to take the benefits. Their detention, removal and exclusion from the territory are inconsistent with any or all of those words.88 A contrary holding constitutes ‘an affront to any reasonable approach to the construction of language’.89 The Divisional Court further stated that in only rare and exceptional circumstances, such as the occurrence of a natural or man-made catastrophe, can it be conducive to remove a whole population for the territory’s peace, order and good government. Section 4 of the 1972 Ordinance had ‘no colour of lawful authority’;90 as such, the Divisional Court quashed it. This decision was hailed by many observers.91 It is possible to criticise the Divisional Court for failing to utilise either or both the Magna Carta and the Witham principle alongside the objective reading of the purport of the POGG principle to declare the action of the British government illegal on the facts. Nonetheless, and certainly with the benefit of hindsight, Tomkins is justified to have noted that the decision is a ‘bold and welcome judgment’.92 This is because ‘even the relatively narrow ground’ on which the judgment was based ‘required the court to take some innovative steps’ as previous decisions had mostly preferred what I have referred to as the subjective interpretation, which accorded the widest law-making powers to its grantees – individual or body.93 In a written ministerial statement made barely three hours after the judgment, the then Foreign Secretary, Robin Cook MP, accepted the Divisional Court’s ruling and that the government would not appeal it. He stated further

176  Colonial and Post-Colonial Constitutionalism in the Commonwealth that the government would intensify efforts of resettling the Chagossians and ‘put in place a new Immigration Ordinance which will allow the Ilois to return to the outer islands while observing our Treaty obligations. This Government has not defended what was done or said thirty years ago.’94 The Immigration Ordinance No 4 of 2000 made after the judgment exempted those (including the applicant) with relevant connection to the islands from a need for an entry permit. Bancoult No 2 – Empire and peace, order and good government However, after this seeming contrition, the ‘Empire struck back’,95 and with colonial force. There was to be no return to ‘paradise’ after all. The first innocuous indication was the fact that following the judgment in Bancoult No 1 counsel to the British government had sought and obtained leave to appeal the decision of the Divisional Court. The fact that the government did not pursue an appeal appears to have been, with the benefit of hindsight, a deft political move to deflect the negative public opinion which trailed the decision. In 2004, the government decided that resettlement of the islands was not feasible and that the territory was still wanted for defence purposes. On 10 June 2004 the Queen exercised her prerogative powers to make two Orders in Council: the British Indian Ocean Territory (Constitution) Order 2004 (‘the Constitution Order’) and British Indian Ocean Territory (Immigration) Order 2004 (‘the Immigration Order’), with the latter repealing the Immigration Ordinance 2000. The two instruments had the effect of preventing the Chagossians from returning to the islands and thereby effectively overturning the High Court’s decision and Robin Cook’s public statement.96 This action provoked further litigation which culminated in a final appeal to the House of Lords in Bancoult No 2 (HL). High Court – a constrained prerogative Bancoult returned to the High Court in R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (‘Bancoult No 2 (HC)’).97 The claimant asked the court to declare unlawful, provisions of the two Orders which declared that no person has the right of abode in the BIOT or to enter and remain there without authorisation. Specifically, the claimant sought a declaration that sections 9 and 15 of the Constitution Order and section 5(1) of the Immigration Order be declared unlawful. Section 9(1) of the Constitution Order provided that the BIOT was ‘constituted and is set aside to be available for the Defence purposes of the Government of the United Kingdom and the Government of the United States of America’, and ‘no person has the right of abode there’. Section 9(2) further provided that ‘no person is entitled to enter or be present in the Territory except as authorised by or under this Order or any other law for the time being in force in the Territory. Section 15 reserved powers of POGG to Her Majesty and further declared that: without prejudice to the generality of that expression but for the avoidance of doubt that any law made by Her Majesty in the exercise of that power

Empire all over again 177 may make any such provision as Her Majesty considers expedient for or in connection with the administration of the Territory; and (b) no such provision shall be deemed to be invalid except to the extent that it is inconsistent with the status of the Territory as a British overseas territory or otherwise as provided by the Colonial Laws Validity Act 1865. Section 5 of the Immigration Order made presence within the BIOT without a permit an offence punishable by three years’ imprisonment. It was argued for the claimant that the power of the Queen in Council to legislate for the BIOT was not broader than the power to make laws for the peace, order and good government of the Territory and its people and that the power was subject to its interpretation in Bancoult No 1. As a result, the residents of the BIOT could not be unlawfully excluded by the making of a constitution or other legislation for that purpose. Further, the United Kingdom was bound by international treaties, customary international law and the United Nations Charter to respect the right of the Chagossians to self-determination. In addition, the power of the Queen in Council to legislate for the BIOT was limited by the UK’s obligation to uphold the human rights of the Chagossians to respect for private and family life and home as well as the right to peaceful enjoyment of their possessions98 and that the Orders in Council were irrational. It was contended for the defendant that the power to legislate for the ‘peace, order and good government’ of a territory was not fettered in relation to that territory because they were not words of limitation. Rather, ‘the formula confers plenary legislative competence in respect of the territory in question’ and, as such, Bancoult No 1 was wrongly decided.99 The defendants further claimed that an Order in Council made for a British Overseas Territory was not susceptible to judicial review either in the United Kingdom or in the BIOT. They were acts of the sovereign made under the royal prerogative which were immune to judicial scrutiny and so could not be challenged for rationality. The Colonial Laws Validity Act 1865 (CLVA) was called in aid by the defendant for the contention that repugnancy to imperial legislation would have been the only valid basis for reviewing the Orders as colonial legislation, but the Orders were not repugnant to any imperial Act of Parliament. Lord Justice Hooper and Mr Justice Cresswell upheld the case for the claimant. The court pointed out that ‘the power to legislate for the peace, order and good government of a territory has never been used to exile a whole population’.100 According to their Lordships: the suggestion that a minister can, through the means of an Order in Council, exile a whole population from a British Overseas Territory and claim that he is doing this for the ‘peace, order and good government’ of the Territory is, to us, repugnant.101 Their Lordships further reiterated the view expressed by Laws LJ that ‘Peace, order and good government may be a very large tapestry, but every tapestry has

178  Colonial and Post-Colonial Constitutionalism in the Commonwealth a border.’102 However, the court did not base its judgment on this point.103 It held that the Orders were subject to judicial review as in reality they were made by the Secretary of State and within the category of acts which were justiciable and subject to the review of the courts since the position of the law on judicial review was not the source but the subject of the act being challenged. The Immigration Order was, the court held, irrational. The CLVA did not avail the defendants because the issue it addressed was repugnancy, which was not the point challenged in this case but the vires of the legislation.104 It quashed section 9 of the Constitution Order for irrationality on ‘public law grounds’ because, in making it, there was clearly no consideration of the interests of the BIOT but rather that of the United Kingdom and the United States.105 It set aside the parts of the two Orders in Council which had the effect of reversing the government’s position as reflected in the Immigration Ordinance 2000 and amended them in order to restore the rights of the Chagossians to return to the archipelago. Court of Appeal – tapestry and double borders The British government appealed the decision on 23 June 2006 in R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 2) (‘Bancoult No 2 (CA)’).106 The appeal of the Secretary of State was based inter alia on the ground that the Divisional Court had misdirected itself in law by not giving effect to the CVLA and holding that the exercise by the Queen of her constitutive and legislative powers in respect of a ceded colony were (subject to any parliamentary legislation) justiciable. It was also wrong to have treated the two 2004 Orders in Council as if they were acts of the executive. Further, it was a misdirection in law to have found that the powers of the Queen in Council were to be exercised only in the interests of the BIOT rather than that of the United Kingdom. The claimant/respondent opposed the application on the grounds in the Divisional Court’s judgment. The claimant further argued that the power of the Queen in Council to legislate for the BIOT was limited by the UK’s obligation under treaties and customary international law to respect the right of the Chagossians to self-determination, or by the obligation under the European Convention for the Protection of Human Rights and Fundamental Freedoms to respect their fundamental rights, especially their right to respect for private and family life and home. Also, the challenged provisions were in violation of the legitimate expectations created by the Secretary of State that the Chagossians’ right of abode would be respected and would not be removed following the ­decision in Bancoult No 1. The appeal was heard by the Master of the Rolls, Sir Anthony Clarke, Lord Justice Sedley and Lord Justice Waller. They dismissed the appeal. Sedley LJ, delivering the leading judgment, however, also adverted to the POGG clause again, approving the ‘tapestry with a border’ simile of Laws LJ in Bancoult No 1. Thus, while: considerable latitude is given to the executive in deciding what makes for the peace, order and good government of a colony; but, as Laws LJ said in

Empire all over again 179 Bancoult (No 1) … large though the tapestry is, every tapestry has a border … But the border itself is a double one.107 Even where the subject matter of legislation ‘is incontestably the peace, order and good government of the colony’, it would still be liable to be struck down as invalid for ‘jurisdictional error’ or ‘malpractice’, examples of which were outlined by Sedley LJ.108 In addition, legislation is ‘open to challenge’ if, when examined, it is ‘manifestly not’ for the peace, order and good government of the colony.109 Lord Justice Sedley further held that the Orders in Council negated ‘one of the most fundamental liberties’ of human beings: ‘freedom to return to one’s homeland’, no matter the socio-economic circumstances of that homeland.110 The use of the prerogative power for colonial governance, though notionally exercised by the Crown, is, in reality, an act of ministers. As such, it is not immune from judicial review as a generic category. Rather, it is only prerogative measures which are lawfully enacted and ‘rationally capable of addressing the peace, order and good government of the colony’ that are so immune.111 Sedley LJ also upheld the argument that section 9 of the Constitution Order ‘impermissibly frustrated the legitimate expectation’ created by statement of the former Secretary of State vouchsafing a right of return for the Chagossians.112 Sedley LJ and the Master of the Rolls were in agreement that the enactment of the two Orders in Council with the effect of negating the right of return of the Chagossians constituted an abuse of power.113 Further, Sir Anthony Clarke agreed with Sedley LJ that the Orders in Council were an abuse of power because they did not have proper regard to the Chagossians’ interests.114 While also dismissing the appeal, Waller LJ was content to limit his decision to the finding that there was breach of ­legitimate expectations of the Chagossians without justification.115 House of Lords – Empire strikes back The government further appealed to the House of Lords in Bancoult No 2 (HL) on 25 June 2007 and it was here that Empire finally struck back. The further appeal to the House of Lords by the Secretary of State for Foreign and Commonwealth Affairs was on the validity of section 9 of the BIOT Constitution Order 2004. It was argued for the British government that prerogative Orders in Council are not subject to judicial review as they are primary legislation having unquestionable validity, comparable to an Act of Parliament. Specifically in this case, ‘constituent legislation is inapt for judicial scrutiny by reference to allegations of illegality or irrationality or procedural impropriety’.116 This was because making the constitution of any territory is a matter of ‘pure policy’ and, since there are competing policy considerations, there are no legal principles to which reference could be made for appropriate evaluation of the outcomes.117 Put differently, they are matters of political calculations not amenable to the judicial review on the basis of the doctrine of separation of powers. The earlier points in the judgment at the lower courts were also canvassed for the respondent. The Orders in Council which effectively denied the Chagossians

180  Colonial and Post-Colonial Constitutionalism in the Commonwealth a right of abode in the Chagos Islands constituted an abuse of power. The right of abode was so fundamental that the Crown could not remove that right in any circumstances. In any event, the powers of the Crown were limited to legislation for the ‘peace, order and good government’ of the territory. Thus, the law had to be for the benefit of the inhabitants. It was further contended that their exiling would be in violation of Article 73 of the UN Charter.118 The House Lords, by a slim-majority of 3–2 (Lords Hoffmann, Carswell and Rodger allowing the appeal and Lords Bingham and Mance dissenting), overruled Bancoult No 1 and reversed the judgment of the Court of Appeal in Bancoult No 2 (CA) except on the point that Orders in Council can, in principle, be subject to judicial review, although in this case the exercise of the royal prerogative through the Orders was appropriate. Lord Hoffmann was affirmative on the point that while it may possess a legislative character, the roots of an Order in Council in the royal prerogative, rather than legislation made by Parliament, render it an exercise of power by the executive. Consequently, it should in principle be subject to judicial review ‘on ordinary principles of legality, rationality and procedural impropriety’ like any other executive action.119 This was a point on which there was unanimity among the judges with varying emphasis. Relying on Riel v The Queen120 and the Australian High Court decision in Union Steamship Co of Australia Pty Ltd v King (‘Union Steamship’),121 the majority stated that ‘peace, order and good government’ do not constitute words of limitation. Rather, they confer plenary legislative powers on the Crown and its representative (the Commissioner of the BIOT). The power to legislate for a ceded territory was not limited by the requirement that legislation should be for the peace, order and good government or any other benefit of the inhabitants of the colony. Consequently, the courts had no jurisdiction to strike down legislation on the ground that it failed to promote or secure the peace, order and good government of a colony.122 According to Lord Rodger, the POGG power is: equal in scope to the legislative power of Parliament … it is not open to the courts to hold that legislation enacted under a power described in those terms does not, in fact, conduce to the peace, order and good government of the territory.123 The majority also overruled Bancoult No 1 on this point. Lord Carswell stated that the unqualified ‘rule of abstinence’ from interfering with political judgements must operate to restrain the courts from challenging the decision to expel and keep out the Chagossians from their homeland. This is despite the fact that the court may consider the Orders in Council made by the executive distasteful and not for the peace, order and good government of the Chagossians.124 I have already noted that it is strange that Lord Carswell left out reference to Hume in his discussion on POGG in Northern Ireland to reach the conclusion that POGG could not be read as words of limitation. The Law Lord supported the view expressed by Lord Rodger that the expulsion was non-justiciable. According to Lord Rodger ‘it cannot be open to the

Empire all over again 181 courts to substitute their judgment for that of the Secretary of State advising Her Majesty as to what can properly be said to conduce to the peace, order and good government of BIOT’.125 Such issues are for the determination of the executive and not judges.126 While conceding that this suggests too wide a legislative power that is left unchecked, the only remedy for ‘inappropriate use’ of the power is political, not judicial.127 In effect, the Crown could not, through the exercise of any prerogative, expel any British citizen from Britain. However, under the POGG clause, the Crown has the power to expel natives of any ‘ceded colony’128 like the Chagos Islands from their homeland under ‘prerogative colonial legislation’.129 The Crown was not limited by the POGG clause to act to preserve the interest or benefit of its dependencies and colonies, but rather ‘in the interests of her undivided realm’, which includes the United Kingdom and the colony.130 The Crown, though lacking in such powers in Britain, is conferred plenary legislative authority in its colonies to the extent that ‘it can make or unmake the law’131 of such lands because the right of abode of the people in such colonies are creations of law. According to Lord Hoffmann, the right of abode is not a constitutional right and certainly that of the Chagossians establishing their status as ‘belongers’ (an artificial description ascribed to them) is a ‘creature of the law’.132 Thus, since ‘the law gives it’, it may take it away.133 This is certainly ‘controversial’.134 The reasoning stands challenged for its apparent invidiousness since it upholds an exclusion of the right accorded to a segment of Her Majesty’s subjects: British citizens (in Britain), and from others in other parts of the ‘Empire’ (‘dependencies’ and ‘colonies’). More worrying still is the suggestion that the best interests of a people would include deporting them from their homeland by virtue of the plenary nature of a power described as being for the peace, order and good government (or, for that matter, any other form). It is noteworthy that in their dissenting opinions, described as ‘powerful and convincing’,135 Lords Bingham and Mance found against this view. Lord Mance (joined by Lord Bingham) had observed logically that any ceded or conquered territory ‘consists, first and foremost, of people living in a territory, with links to a parent state’, so the ‘constituent’ power of the Crown to introduce a constitution for a ceded territory is for the ‘proper governance’ of the inhabitants, not to exile them.136 Lord Mance further stated that it was a contradiction in terms to talk about a constitution that exiles the territory’s inhabitants. The: absence of any precedent for the exercise of the royal prerogative to exclude the inhabitants of a colony from the colony is significant, although to my mind entirely unsurprising. Until the present case, no-one could have conceived of its exercise for such a purpose.137 Disturbing still, the notorious fact that the de-population of the Chagos Islands through prevention from return and expulsion was done through subterfuge, deceit and utter contravention of international law had virtually no weight with the majority.138 Yet, there is much force in the argument that international law was relevant in the circumstances.139 Even the government of the United Kingdom was acutely

182  Colonial and Post-Colonial Constitutionalism in the Commonwealth aware of the implications of the depopulation under international law, hence the strenuous efforts to misrepresent the facts as to the nature of the population of the archipelago. As Lord Mance noted, there was definitely concern on the part of the British government at the relevant times in the late 1960s and early 1970s ‘to avoid, if at all possible, any suggestion that BIOT had settled inhabitants to which (sic) the United Kingdom’s international obligations under article 73 of the Charter of the United Nations would apply’.140 Thus, it is surprising that the majority of the Law Lords glossed over the international law implications of the case despite the fact that the ‘excision’ of the Chagos Islands was in defiance of the UN General Assembly’s Decolonisation Resolution 1514/XV of 1960.141 Lord Hoffmann had justified the government’s action in this regard partly on the basis that true knowledge of the facts would have strengthened the hands of the Soviet Union ‘and “its non-aligned” supporters’ to mobilise against the establishment of the base by the United Kingdom and the United States at the United Nations.142 As many commentators have argued, the dissenting opinion, rather than the majority decision, is the good law. Lord Bingham considered that the royal prerogative, as a mechanism for the exercise of legislative power by the executive, is ‘an anachronistic survival’.143 He stated that the proper approach to determining the existence or effect of the royal prerogative was a historical one. Based on that approach, he held that legal precedent negated the existence of a prerogative power to exile an indigenous population from its homeland.144 In this way, Lord Bingham dealt with the scope of the POGG power only by implication. The Orders in Council, he agreed with the Court of Appeal, were irrational because there was no good reason for making them; the security arguments advanced by the British government being weak and vague. Lord Bingham also dismissed the argument that the islanders were deprived of a right of little practical value for if the right to their homeland was of such intangible value then the more reason not to take it away.145 Further, the Orders in Council contradicted a clear representation by the Secretary of State in his statement of 3 November 2000 following the judgment in Bancoult No 1 from which the Government could not resile without compelling reason and none had been shown.146 The Bancoult litigation as a whole and the majority decision in Bancoult No 2 (HL) highlight the continuity of Empire not only in a metaphoric or historic sense, but rather with (most of) its imperial power intact and exercised even today. The most worrying part of this situation is not the undemocratic, non-republican preference of the Crown or its Ministers (and top civil servants well-shielded by bureaucracy in Whitehall) that in reality are the policy makers and implementers of most of what passes as the royal prerogative in these times more than any other in British history. Rather, the most disturbing aspect is judicial acquiescence at the highest levels to maintaining a status quo suited only to over a century past. As one critic notes, the decision of the House of Lords in Bancoult No 2 (HL) is ‘surprising, if not shocking’ and testifies to: the troubling readiness of the Lords to condone expressly admitted violations of the law … by removing executive acts in the colonies from any form of

Empire all over again 183 judicial oversight through mere reference to archaic legal instruments such as so-called Royal Orders in Council and the Colonial Laws Validity Act of 1865.147 As another commentator points out, while the majority in Bancoult No 2 (HL) purported that the judgment was based on the ‘authorities’, those authorities, just as convincingly argued by the dissenting opinion, demonstrated the very opposite. Rather than the decision of the majority being vindicated by an appeal to formalism advanced in justification by the majority,148 the very arguments they considered and rejected were by far stronger and better supported by the authorities. The majority decision was based essentially on pragmatic considerations.149 This echoes the point made by Lord Bingham when he referred with approval to the famous statement in Entick v Carrington150 that ‘If it is law, it will be found in our books. If it is not to be found there, it is not law.’151 The majority decision in an age of self-determination provides ample vindication for the case for a departure from the subjective application of POGG. This is advanced as a central issue in Chapter 6. A critical issue which the Bancoult litigation calls to mind is the rule of law and the ambivalence that attaches to it in so many contexts. That ambivalence makes the rule of law a problematic concept despite its significance in society. Discussing that ambivalence, Ruti Teitel notes that in the context of societies recovering from the experience of gross violations of human rights as a result of conflict or authoritarian rule, the rule of law, much like Janus, is both forward and backward looking. While it seeks to recover justice for victims, society and its institutions, like law and the judiciary, are faced with the dilemma of what really is law for that critical task: Is the applicable law that of the ancien régime which typically legalised actions of its agents that are now deemed illegitimate or international standards which the state at the relevant time did not recognise, but now either willingly or otherwise (for expedience of legitimacy for instance) subscribe to? This challenge is what Teitel refers to as the rule of law dilemma.152

Conclusion One thing is clear: peace was and remains a much-sought-after public good in Northern Ireland. The Northern Ireland Act 1998 as enacted is demonstrative of this: though it contained one mention of the word ‘peace’, it contained 15 of its most prominent derivative, ‘peaceful’. However, as mentioned above, it is striking that unlike the 1920 Act which it repealed, the parties who made the agreement that culminated in the crucial constitutional document, as well as draftsmen who prepared the bill passed into law at Westminster, did not deem it fit to include the phrase, ‘peace, order and good government’ in it. Rather, the Northern Ireland Act 1998, in providing for the legislative power of the Northern Ireland Assembly, simply provides that ‘Subject to sections 6 to 8, the Assembly may make laws, to be known as Acts.’ But the 1998 Act did list matters that were excepted or reserved from the Northern Ireland Assembly’s competence. It can only legislate

184  Colonial and Post-Colonial Constitutionalism in the Commonwealth on matters that do not fall within those categories (with minor exceptions). In this way, Northern Ireland joins other parts of the Commonwealth, like South Africa, Pakistan and Ghana, where the POGG power has been excluded from the lawmaking powers of the legislature, suggesting that in the absence of an imperial or authoritarian framework, the POGG clause has no constitutional relevance. This is at least indicative of the colonial underpinning of POGG. Suffice it to say at this point that the Northern Ireland example speaks to the fact that in a nonauthoritarian, non-colonial context, it is difficult to locate any value in POGG as an empowering legislative provision in light of its prevailing judicial interpretation across the Commonwealth. That is save, of course, from the use of the POGG in a literal, objective sense, which was the manner in which it was used in instances of its mention in legislation in England and Wales as highlighted above. I return to discussion of that meaning in Chapter 6. It is interesting to observe how the provisions of section 11 of the BIOT Order typically followed the tradition of colonial legislation conferring wide powers of administration on colonial officers in the British Empire, discussed in earlier chapters. The story of the depopulation of the Ilois, aptly described by David Vine as ‘a shameful act’,153 epitomises the height of imperialism and unbridled abuse of power by two empires. One, Great Britain, mainly classic and historical in its power (even though with vestiges of its power much around); the other, the United States, modern, contemporary and ascendant.154 The Bancoult litigation challenged the exercise of the POGG clause by a colonial power over a helpless minority circumstanced to inhabit a ‘paradise’155 ironically reconstituted into a ‘human rights black hole’156 or a ‘legal black hole’157 with the UK and US ­governments taking advantage of its obscure geographical location. Much like in societies recovering from conflict and authoritarianism, the rule of law dilemma remains a challenge in the context of colonial law. Law is in transition in both current and former colonies. The challenge is complicated by the observation of Lord Rodger in Bancoult No 2 (HL) that there are usually few occasions for the courts (at least in the United Kingdom) to pronounce on colonial law, leading to a paucity of precedents. This is a challenge of no mean dimensions in the common law countries when judges have to determine the law in cases that throw up the question of the appropriate interpretation to be placed on the exercise of power relating to colonial law situations. The judicial dilemma then arises as to what the rule of law demands. On few occasions, this is unavoidable and merely a reflection of the limitations of law itself as an organising mechanism in society. In such situations law appears to lay at the tail end of a penumbra; so even judges (they are human after all) appear to be at a loss. However, the judicial dilemma in interpreting colonial law is arguably mostly self-imposed by the judiciary in the conception of its role. The judiciary, especially in the common law system, tends to be caught between adopting a progressive and liberating jurisprudence and a tradition of fidelity to a formalist approach to legal interpretation that on too many occasions is subterfuge for deferring to (abuse of) power. The progressive interpretive approach commends itself as the appropriate one in cases such as the Bancoult litigation where

Empire all over again 185 there is clear evidence of perfidy, abuse of power and plain injustice in the exercise of executive power requiring decisive intervention by an impartial umpire sworn to justice and equity, wherever that falls. It is axiomatic that there is a perennial debate about the vices and virtue of formalism as a mode of interpretation, and protagonists of formalism have substantial arguments to maintain that fidelity to it is the only appropriate or legitimate approach to legal interpretation. So, if the majority decision in Bancoult No 2 (HL) was appropriately based on formalism, there arguably remains sound legal justification for it. However, as I have sought to demonstrate, there is no such justification on the facts. It bears repeating, as the minority opinion as well as the judgments of at least five other judges in the lower courts convincingly pointed out, that there is no single precedent to support the proposition on which the decision of the majority was based: that the royal prerogative, with or without its expression in the ‘ritualistic phrase’ of POGG,158 had been used to exile the Crown’s subjects from the realm. And it is no answer that this could be done by Parliament, if for no other reason than that legislation in that direction would be subject to political debate and, possibly, repercussions flowing from democratic accountability. That is certainly so in this day and age, or at least one would assume so, as did many of their Lordships from Laws LJ in the High Court to Lord Bingham in the House of Lords. One of the arguments canvassed for the applicants in Bancoult No 1 but rejected by the court is that the Witham principle applied to the circumstances of the Ilois to warrant nullification of the Immigration Ordinance 1971. It is, however, arguable that on the facts, the court ought to have applied the Witham principle in Bancoult No 1. The refusal is ostensibly premised on the rule of law dilemma. The court’s position was that despite the fact that we live in a ‘post-imperial world’, there continues a ‘dissonance’159 in the application of fundamental or constitutional rights based or entirely justified by the incidence of territoriality. Advertence to territoriality in this way is part of the continuing symmetries of inequality and power which resonates beyond the Bancoult litigation. It permeates the international system and the application of international law, including human rights. We are witnesses to a ‘richness of rights’ enjoyed by British citizens as an entitlement under municipal law in the United Kingdom denied to British subjects in other parts of the realm, like the BIOT. This is despite the fact that those other citizens are also under British sovereignty even if on the periphery rather than metropolis of Empire, i.e. outwith the limits of the United Kingdom. The dichotomy is legalised by the ‘wintry asperity of [judicial] authority such as Liyanage’.160 In other words, it was legally justified, even if not legitimate, to dichotomise the rights of British subjects within the realm based on judicial authority that is admittedly anachronistic; just like the legal mechanism deployed to facilitating the discrimination. Such dichotomy on what constitutes or should constitute law and, more generally, the rule of law, is so significant and ‘may strike real lives’.161 This, as mainly critics have pointed out, is the stark reality of the Ilois of the Chagos Archipelago. As Laws LJ acknowledged in Bancoult No 1, a British court has an ‘acute’ task in adjudicating such laws.162 But even with its signal progressive jurisprudence on

186  Colonial and Post-Colonial Constitutionalism in the Commonwealth the purport of the POGG power in Bancoult No 1, the court still limited itself in terms of the perception of its role to act as an agent of change. This was because the courts, in the view of Laws LJ, would ‘themselves affront the rule of law’ if they ‘translated the liberal perceptions of today, even if they have become the warp and weave of our domestic public law, into law binding on established colonial powers in the face of authority that we should do no such thing’.163 This is problematic. As Laws J stated (and Gibbs J concurred) in Bancoult No 1, while the POGG clause may have a large tapestry, like every tapestry it must have a border. As an expression of legislative competence, POGG should not be considered ‘unfettered’. That is certainly desirable, nay sine qua non for accountability, fairness and justice in an era of liberalism and democracy. On that account, like so many critics have pointed out, it remains unacceptable that the majority of the House of Lords upheld the acknowledged injustice and shameful conduct of the UK government towards the Chagossians. In what is arguably a pattern of selective conception and recognition of human rights, it is disappointing but not shocking that the European Court of Human Rights declared inadmissible the application of the Chagossians challenging their treatment by the UK government in Chagos Islanders v United Kingdom.164 While agreeing that the rule of law and enjoyment of fundamental freedoms was a cardinal good for British subjects everywhere, Laws LJ (Gibbs J concurring) acquiesced to colonial interpretations that limit such benefits to only a section of citizens under British sovereignty, namely those within the British Isles. The denial of those benefits to others, ironical though it may be, was in order. Lord Hoffmann, in the leading judgement in Bancoult No 2 (HL), similarly stated that although the Human Rights Act 1998 was part of the laws of England, it was not applicable to the BIOT despite the fact that the laws of England are applicable in the BIOT.165 This judicial position upholds colonial subjugation for the expedience of the UK’s interest166 and validates the criticism that ‘Britain’s history with its colonies shows it can and does sweep away rights when it is convenient.’167 The judicial reluctance to uphold the application of the Witham principle to the benefit of the Ilois suggests preference for a minimalist or legalistic conception of the rule of law. Chapter 6 addresses the institutionalisation of such selective ­constitutionalism in the Commonwealth, with particular attention to POGG.

Notes 1 See Ch 1. 2 Harry Calvert, Constitutional Law in Northern Ireland (Stevens and Sons, London, 1968), 10, pointing out that Northern Ireland had been a part of the United Kingdom from the inception of the latter. 3 10 & 11 Geo. 5, c.67. 4 See the Northern Ireland Act 1998 (c.47). 5 See the Scotland Act 1998. 6 See the Government of Wales Act 1998 (c.38). 7 [2008] UKHL 61, [2009] 1 AC 453. 8 Bancoult No 2 (HL) (n 7), [127].

Empire all over again 187 9 For a very fluent discussion of that connection as evidenced by the Bancoult litigation, see Thomas Poole, ‘United Kingdom – The Royal Prerogative’ (2010) 8(1) International Journal of Constitutional Law 146; and Sue Farran, ‘Prerogative Rights, Human Rights, and Island People: The Pitcairn and Chagos Island Cases’ [2007] PL 414. 10 9 Anne c.20. See reference to POGG in this statute in R v Ponsonby [1758] 11 Brown 965. 11 Act 11 Geo. I. c.18 (emphasis added). 12 James Mitchell, ‘Evolution and Devolution: Citizenship, Institutions, and Public Policy’ (2006) 36(1) Publius 153, 154. 13 Colin Turpin and Adam Tomkins, British Government and the Constitution – Text and Materials (Cambridge University Press, Cambridge, 2011), 221. 14 Richard Rose, ‘The United Kingdom as Multi–National State’, in Richard Rose (ed.), Studies in British Politics (3rd edn, Macmillan, London, 1976), 115–116. 15 Scotland and England were under the same Crown from 1603 but with separate institutions of government; they were joined in 1707 in the United Kingdom of Great Britain by the Treaty and Acts of Union passed by the English Parliament and Scottish Parliament. Wales came under the rule of the English Crown in the thirteenth century while the 1536 Act of Union was a unilateral action of the English Parliament, Northern Ireland has been ruled by the English Crown as far back as the twelfth century and was unified with Great Britain by Acts of the Union 1800, passed simultaneously by the British and Irish Parliaments. See Calvert (n 2), 10; Turpin and Tomkins (n 13), 222–253. 16 Union with Ireland Act 1800, c.67; 39 and 40 Geo 3: see Alvin Jackson, The Two Unions: Ireland, Scotland and the Survival of the United Kingdom (Oxford University Press, Oxford, 2011), 5. 17 Desmond Keenan, Ireland within the Union – 1800–1921 (Xlibris Corporation, 2008), 11, 13. 18 Keenan (n 17), 11, 230. 19 See the Ireland Act 1949 (c.41, 12, 13 and 14 Geo.6); and Turpin and Tomkins (n 13), 222. 20 AG Donaldson, ‘The Constitution of Northern Ireland: Its Origins and Development’ (1955) 11(1) University of Toronto Law Journal 1, 1; Austen Morgan, The Belfast Agreement: A Practical Legal Analysis (Belfast Press, London, 2000), 30. 21 Calvert (n 2), 11. 22 Enacted after similar legislation had been rejected twice in 1912 and 1913, but the Act never took effect because of the Suspensory Act 1914, later repealed by the 1920 Act. 23 Donaldson (n 20), 2. 24 Micthell (n 12), 156. For the background to devolution in the United Kingdom generally, see Vernon Bogdanor, Devolution in the United Kingdom (Oxford University Press, Oxford, 2001). 25 Paul Arthur, ‘Devolution as Administrative Convenience: A Case Study of Northern Ireland’ (1977) 30(1) Parliamentary Affairs 97, 97–99; Mitchell (n 12), 156–157; Rose (n 14), 116. 26 Mitchell (n 12), 156–157; and W Don Caroll, ‘The Search for Justice in Northern Ireland’ (1973) New York University Journal of Law and Politics 28, 28–30. 27 There were, of course, intermittent periods of reintroduction of direct rule because of the mistrust between members from both sides of the community in Northern Ireland. There have been three devolved Assemblies in Northern Ireland: in 1974, 1982–86 and the current Assembly, which was established in 1998 under the terms of the Northern Ireland Act 1998 following the Good Friday Agreement but that too was suspended in 2002. While the 1974 Assembly had legislative powers, the Assembly of 1982–86 had no legislative responsibilities. The current Northern Ireland Assembly had no legislative powers prior to devolution on 2 December 1999. See Northern Ireland

188  Colonial and Post-Colonial Constitutionalism in the Commonwealth Legislation House of Commons Information Office Factsheet L8 (House of Commons, 2010). The post-1998 period is not of direct interest here. 28 Arthur (n 25), 97–98. 29 Mitchell (n 12), 159; Turpin and Tomkins (n 13), 220. 30 Turpin and Tomkins (n 13), 222. 31 Mitchell (n 12), 159. 32 Calvert (n 2), 3. 33 Mary Sarah Bilder, ‘English Settlement and Local Governance’, in Michael Grossberg and Christopher Tomlins (eds), The Cambridge History of Law in America Volume I: Early America 1580–1815 (Cambridge University Press, Cambridge, 2008), 63, 65. 34 Establishing the Northern Ireland Assembly 35 C.36, Sch 6, Pt I. It abolished the Parliament of Northern Ireland suspended in 1972 and made provisions for the devolution arrangements for the administration of Northern Ireland through the newly created Northern Ireland Assembly and the Northern Ireland Executive to implement the Sunningdale Agreement. 36 This is to be taken in a limited sense since Northern Ireland in formal terms has a constitutional arrangement that is part of, and not separate from, the United Kingdom. However, to the extent that the 1920 Act constituted a foundational document for the governance of Ireland, it does, by consensus of writers on the nature of public law in Northern Ireland, constitute a constitutional document for that part of the United Kingdom as distinct from other parts. See, generally, Calvert (n 2); Gordon Anthony, ‘The Uniqueness of Northern Ireland Public Law’ (2012) 21(4) Legal Information Management 262; Brigid Hadfield, The Constitution of Northern Ireland (SLS Legal Publications, Belfast, 1989). 37 Ireland Act 1920, s 5. 38 Per Lord Carswell in Bancoult No 2 (HL), [129]. 39 [1937] AC 863 (HL). 40 [1936] NI 131. 41 Gallagher (n 39), 869–70. 42 7 App Cas 839. 43 Gallagher (n 39), 869. 44 Gallagher (n 39), 870. 45 Calvert (n 2), 194. 46 See Ch 2. 47 Imperial Tobacco Limited v Lord Advocate [2012] CSIH 9 at [118]. 48 Calvert (n 2), 189 and 194–196. 49 Gallagher (n 39), 870. 50 [1962] NI 6. 51 Bancoult No2 (HL) (n 7), [129]. 52 Calvert (n 2), 170–172. 53 Bancoult No 2 (HL) (n 7), [129]. 54 [1972] NI 91. 55 Acts of 1922–1943. 56 Mitchell (n 12), 165. 57 Turpin and Tomkins (n 13), 255. 58 SR & O (Northern Ireland) 1970 No 214. 59 Hume (n 54), 111. 60 Paul O’Higgins, ‘Northern Ireland Act 1972’ (1972) 35(3) Modern Law Review 295, 295 and Brigid Hadfield, ‘A Constitutional Vignette – From SR & 0 1970/214 to SI 1989/509’ (1990) 41(1) Northern Ireland Legal Quarterly 54, 61. This legislation was passed on 24 February 1972 and is not to be confused with the Northern Ireland (Temporary Provisions) Act (c.22) passed on 30 March 1972 to introduce direct rule to Northern Ireland.

Empire all over again 189 61 Sir Robert Carswell, ‘Human Rights and Rule of Law’ (1999) 6(4) Journal of Clinical and Forensic Medicine 249. I am grateful to Brice Dickson for bringing the fact of Lord Carswell’s professional involvement with Hume and this article to my attention. The Law Lord was a High Court judge, Lord Justice of Appeal in Northern Ireland and later Lord Chief Justice of Northern Ireland (1984–2004) before being appointed a Lord of Appeal in Ordinary in 2004. See also ‘Appendix 4: Pen Portraits of the Lords of Appeal’, in Louis Bloom-Cooper, Brice Dickson and David Dewry (eds), The Judicial House of Lords 1876– 2009 (Oxford University Press, Oxford, 2009), 756. 62 Carswell (n 61), 251–252. 63 The litigation has attracted considerable critical academic comment, the bulk of which condemned the final judgment in the matter by the House of Lords. See, e.g. Stephanie Palmer, ‘“They made a Dessert and Called it Peace”: Banishment and the Royal Prerogative’ (2001) 60(2) Cambridge Law Journal 234; Adam Tomkins, ‘Magna Carta, Crown and Colonies’ [2001] Public Law 571; Mark Elliot and Amanda Perreau-Saussine, ‘Pyrrhic Public Law: Bancoult and the Sources, Status and Common Law Limitations on Prerogative Power’ [2009] Public Law 697; Margit Cohn, ‘Judicial Review of Non-Statutory Executive Powers after Bancoult: a Unified Anxious Model’ [2009] Public Law 260; Laura Jeffery, ‘Historical Narrative and Legal Evidence: Judging Chagossians’ High Court Testimonies’ (2006) 29(2) Political and Legal Anthropology Review 228; Christian Nauvel, ‘A Return from Exile in Sight? The Chagossians and Their Struggle’ (2006) 5(1) Northwestern Journal of International Human Rights 96; Stephen Allen, ‘Looking Beyond the Bancoult Case: International Law and the Prospect of Resettling the (Outer) Chagos Islands’ (2007) 7 Human Rights Law Review 441; Richard Moules, ‘Judicial Review of Prerogative Orders in Council: Recognising the Constitutional Reality of Executive Legislation’ (2008) 67(1) Cambridge Law Journal 12; Julie McBride, ‘“The Law Gives It And The Law May Take It Away”: The Repercussion of Bancoult (No. 2)’ (2009) 5(1) Cambridge Student Law Review 190; Richard Moules, ‘Judicial Review of Prerogative Orders in Council’ (2009) 68(1) Cambridge Law Journal 14; Peter Sand, United States and Britain in Diego Garcia: The Future of a Controversial Base (Palgrave Macmillan, New York, 2009). 64 There are now numerous accounts of the treatment meted out to the people of Diego Garcia, a small island in the Indian Ocean, some of which are in the sources in n 63. A detailed capture of the facts and background to the various cases is provided in the judgment of Justice Ouseley in Chagos Islanders v Attorney-General, Her Majesty’s British Indian Ocean Territory Commissioner [2003] EWHC 2222 (QB) at [1]–[96]. 65 CO/3775/98 (unreported judgment of the Queen’s Bench Division, 3 March 1999), although this came up again in the decision in Bancoult No 1 (n 66). 66 [2001] QB 1067. This case and the unsuccessful application objecting to the leave for judicial review, R v Bancoult (n 65), provide a comprehensive account of the matter and I draw extensively on both with supplementary information from David Vine, Islands of Shame: The Secret History of the U.S. Military Base on Diego Garcia (Princeton University Press, Princeton, 2009) to highlight the background facts leading to the legal issues in the Bancoult litigation. 67 Bancoult No 1 (n 66), [1]. 68 Vine (n 66), 8–9. 69 On 12 March 1968 Mauritius became independent but the Chagos Islands continued to be a UK colony as part of the BIOT. Mauritius has, however, continued to claim ownership of the archipelago: see Peter H Sand, ‘Diego Garcia Legal Black Hole: A Response to Sheppard et al’ (2009) 21(2) Journal of Environmental Law 295, 296–297. 70 Bancoult No 1 (n 66), [2]. 71 See ss 5–10 of the BIOT Order. 72 Charlotte Kelloway, ‘The Case of the Chagossian Islanders: Human Rights and

190  Colonial and Post-Colonial Constitutionalism in the Commonwealth Environmental Law Come into Conflict’ (2011) 1(1) Warwick Students Law Review 33, 34 73 Per Lord Justice Laws in Bancoult No 1 (n 66), [3]. 74 Bancoult No 1 (n 66), [1]. 75 As Laws LJ stated, ‘Nothing is plainer, from the history of events which I have recounted by reference to the contemporary documents, that the making of the Ordinance and its critical provision – s.4 – were done on the orders or at the direction of Her Majesty’s Ministers here, Her Ministers in right of the government of the United Kingdom … If the applicant in these proceedings had sought to sue in the BIOT courts, the reply might have been that those courts had no authority to control the Secretary of State sitting in Whitehall; and it would have been a true reply’: Bancoult No 1 (n 66), [29]–[30]. 76 See Ch 6 for a discussion of the JCPC and its role in the British Empire and Commonwealth constitutionalism with particular reference to POGG. 77 Bancoult No 1 (n 66), [53]. 78 Bancoult No 1 (n 66), [30]. 79 Bancoult No 1 (n 66), [36]. 80 Bancoult No 1 (n 66), [36]. 81 Tomkins (n 63), 579. 82 [1998] QB 575. 83 Witham (n 82), 581. 84 Bancoult No 1 (n 66), [57]. 85 Bancoult No 1 (n 66), [57]. 86 Bancoult No 1 (n 66), [65] (emphasis added). 87 Bancoult No 1 (n 66), [69]. 88 Bancoult No 1 (n 66), [71]. 89 Bancoult No 1 (n 66), [71]. 90 Bancoult No 1(n 66), [59]. 91 See, e.g. Palmer and also Tomkins (n 63). 92 Tomkins (n 63), 574. 93 Tomkins (n 63), 574. 94 Joshua Rozenberg, ‘Banished Islanders Win Right to Go Home’, Telegraph (4 November 2000). 95 Peter H Sand, ‘R (on the Application of Bancoult) v. Secretary of State for Foreign and Commonwealth Affairs’ (2009) 103 American Journal of International Law 317, 320. 96 David Snoxell, ‘Expulsion from Chagos: Regaining Paradise’ (2008) 36(1) Journal of Imperial and Commonwealth History 119, 126–127. 97 [2006] EWHC 1038 (Admin). 98 Bancoult No 2 (HC) (n 97), [5]–[8] and [101]. 99 Bancoult No 2 (HC) (n 97), [127]–[128]. 100 Bancoult No 2 (HC) (n 97), [142]. 101 Bancoult No 2 (HC) (n 97), [142]. 102 Bancoult No 2 (HC) (n 97), [142]. 103 Bancoult No 2 (HC) (n 97), [143]. 104 Bancoult No 2 (HC) (n 97), [142]. 105 Bancoult No 2 (HC) (n 97), [122]. 106 [2007] EWCA Civ 498; Secretary of State for the Foreign and Commonwealth Affairs v R (Bancoult) [2008] QB 365. 107 Bancoult No 2 (CA) (n 106), [46]. 108 Bancoult No 2 (CA) (n 106), [46]. 109 Bancoult No 2 (CA) (n 106), [46]. 110 Bancoult No 2 (CA) (n 106), [71]. 111 Bancoult No 2 (CA) (n 106), [46].

Empire all over again 191 112 Bancoult No 2 (CA) (n 106), [72]–[78]. 113 Bancoult No 2 (CA) (n 106), [73]–[78] and [121]–[122], per Sedley LJ and Sir Anthony Clarke respectively. 114 Bancoult No 2 (CA) (n 106), [122]–[123]. 115 Bancoult No 2 (CA) (n 106), [99]. 116 Bancoult No 2 (HL) (n 7), 464. 117 Bancoult No 2 (HL) (n 7), 462–463. 118 Bancoult No 2 (HL) (n 7), 471–472. 119 Bancoult No 2 (HL) (n 7), [35]. 120 (1885) 10 App Cas 675. 121 (1988) 166 CLR 1. 122 Bancoult No 2 (HL) (n 7), [48]–[51], [107]–[109], [127]–[130], per Lords Hoffmann, Rodger and Carswell respectively. 123 Bancoult No 2 (HL) (n 7), [109]. 124 Bancoult No 2 (HL) (n 7), [130]. 125 Bancoult No 2 (HL) (n 7), [109]. 126 Bancoult No 2 (HL) (n 7), [109]. 127 Bancoult No 2 (HL) (n 7), [109]. 128 There is controversy on the status of the island given the claim by Mauritius that it was forced to cede it as a condition for its independence. See Sand (n 95), 322–324. 129 Bancoult No 2 (HL) (n 7), [49], per Lord Hoffmann. 130 Bancoult No 2 (HL) (n 7), [47]. 131 Bancoult No 2 (HL) (n 7), [44]. 132 Bancoult No 2 (HL) (n 7), [45]. 133 Bancoult No 2 (HL) (n 7), [45]. 134 McBride (n 63), 197. 135 Moules (n 63), 16. 136 Bancoult No 2 (HL) (n 7), [157] (emphasis added). 137 Bancoult No 2 (HL) (n 7), [157]. 138 Thiruvallore Thattai Arvind, ‘“Though it Shocks One Very Much”: Formalism and Pragmatism in the Zong and Bancoult’ (2011) Oxford Journal of Legal Studies Advanced Access 3; Sand (n 63), 15–34; and Vine (n 66), 92–94, 112–15. Lord Hoffmann had indeed declared that international law did not apply to the case at all. See Bancoult No 2 (HL) (n 7), [66]. Lord Mance left ‘open’ the application of international law to the whole matter: Bancoult No 2 (HL) (n 7), [142]. 139 Farran (n 9), 421–424. 140 Bancoult No 2 (HL) (n 7), [169]. 141 Sand (n 95), 318. 142 Bancoult No 2 (HL) (n 7), [10]. 143 Bancoult No 2 (HL) (n 7), [69]. 144 Bancoult No 2 (HL) (n 7), [69]–[71]. 145 Bancoult No 2 (HL) (n 7), [72]. 146 Bancoult No 2 (HL) (n 7), [73]. 147 Ebrahim Afsah, ‘Publication Review: Island of Shame. The Secret History of the US Military Base on Diego Garcia, David Vine’ (2010) 21(1) European Journal of International Law 257, 259. 148 Lord Rodger, for instance, referred to the duty of the courts to uphold the arcane distinction between settled and conquered/ceded territories in this terms: ‘when Parliament has not intervened to alter them, the rule of law requires courts to apply the established principles such as the readily comprehensible distinction between ceded and settled colonies on which the whole body of colonial law rests’: Bancoult No 2 (HL) (n 7), [80]. 149 Arvind (n 138).

192  Colonial and Post-Colonial Constitutionalism in the Commonwealth 150 (1765) 19 State Tr 1030. 151 Entick v Carrington (n 150), 1066. 152 For a developed account of the rule of law dilemma which Teitel discussed in the challenging context of transitional justice, see Ruti G Teitel, ‘Transitional Jurisprudence: The Role of Law in Political Transformation’ (1997) 106 Yale Law Journal 2009, 2016–2030. 153 Vine (n 66). 154 Like many others, I share Vine’s characterisation of the US expansionist activities as constituting it into a modern day empire. See Vine (n 66), 18. 155 Snoxell (n 96). 156 Louise Moor and AW Brian Simpson, ‘Ghosts of Colonialism in the European Convention on Human Rights’ (2005) 26 British Year Book of International Law 121, 193. 157 From an environmental perspective that is. See Peter Sand, ‘Diego Garcia: British– American Legal Black Hole in the Indian Ocean’ (2009) 21(1) Journal of Environmental Law 116, whose particular concern is with disregard for environmental rights arising from pollution of the archipelago. But cf. Charles Sheppard, Jerker Tamelander and John Turner, ‘The Chagos Archipelago (British Indian Ocean Territory): Legal Black Hole or Environmental Bright Spot? – A Reply to Sand’ (2009) 21(2) Journal of Environmental Law 291, claiming that the island remains essentially unpolluted contrary to Sand’s contention that it has been contaminated by infiltration of spilled jet fuel into groundwater reserves and lagoon water contamination deriving from oil spills: ‘in terms of environmental science and condition the area is much more of a bright spot than it is a black hole’ (at 293) and, lastly, the convincing riposte and refutation of the claim by Sand. See Sand (n 69). 158 Per Lord Carswell in Bancoult No 2 (HL) (n 7), [128]. 159 Bancoult No 1 (n 66), [43]. 160 Bancoult No 1 (n 66). Significantly, Sedley LJ rejected the applicability of Liyanage to the facts in Bancoult (No 2) (CA), [24]. 161 Bancoult No 1 (n 66), [43]. 162 Bancoult No 1 (n 66), [43]. 163 Bancoult No 1 (n 66), [43]. 164 Application No 35622/04. 165 Bancoult No 2 (HL) (n 7), [65]. 166 Bancoult No 2 (HL) (n 7), [4], where Lord Hoffmann asserted, in part justification of the lawfulness of the two Orders in Council, that ‘Her Majesty exercises her powers of prerogative legislation for a non-self-governing colony on the advice of her ministers in the United Kingdom and will act in the interests of her undivided realm, including both the United Kingdom and the colony.’ 167 Michael O Eshleman, ‘The New Pitcairn Islands Constitution: Strong, Empty Words for Britain’s Smallest Colony’ (2012) 24 Pace International Law Review 21, 23.

6 Law, politics and peace, order and good government – the case for change

The entrenchment of the peace, order and good government (POGG) clause remains an intriguing aspect of Commonwealth constitutionalism. This chapter engages the intersection of law and politics in the process of that entrenchment. The context of the entrenchment of POGG, as has been seen, was that of balancing between conferring some measure of self-governing powers on the constituents of the colonies while ultimately maintaining colonial control. This context has shaped the interpretation and application of the POGG clause across the Commonwealth with predictable tension. The discussion in this chapter consolidates the contextual analysis in the preceding chapters to argue a case for change in the application and interpretation of POGG. This is in light of the paradox inherent in the prevailing interpretation of the POGG clause. The case for change advanced here urges the adoption of either of two options. The main argument, simply stated, is that there is a sound case for the adoption of an objective interpretation of the POGG in preference to the subjective interpretation that currently prevails in the Commonwealth. I have at least implied the meaning of the objective and subjective interpretations of POGG at different points in the preceding chapters. However, for clarity it is useful briefly to restate what I mean by the objective and subjective interpretations of POGG. The objective approach, sometimes referred to as the literal approach, requires that the exercise of the power to which it relates is limited to ensuring the substantive welfare of those for whose benefit the power was conferred. This is the substance of the approach of the court in R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (‘Bancoult No 1’),1 for instance. This is as against the subjective interpretation which holds that the conferee, individual or body has plenary, unlimited power to act or pass legislation subject only to the jurisdictional limits as set by the conferring instrument. This latter sense is that in which POGG has become a state of the art term. I will demonstrate that, contrary to the subjective interpretation of POGG clause, the objective interpretation is grounded in, and supported by, the historiographical account of POGG and this is evidenced in the colonial history, law and politics of the British Empire and, by extension, the Commonwealth. Failing adoption of the objective interpretation, I argue in the alternative for discarding the clause from Commonwealth constitutions. This is required for resolving the

194  Colonial and Post-Colonial Constitutionalism in the Commonwealth paradox in its current interpretation and application. Some jurists, constitutional law scholars in particular, may reject both options for being radical, but I consider that they are justifiable in light of the application of the POGG power, particularly from the experience of recent history. The first part of this chapter examines the institutionalisation of the POGG clause in Commonwealth constitutionalism through the agency of the Judicial Committee of the Privy Council (JCPC) – a judicial organ – as an integral part of the Privy Council – an executive administrative body. This aspect of the discussion highlights the impact of the nature of the JCPC as a sui generis institution in colonial administration in the British Empire. The second part of the chapter engages POGG from an essentially substantive angle. Over a century ago, Arthur Berriedale Keith, one of the leading authorities of British colonial law, stated that the orthodox view of POGG is the subjective one. This approach to the interpretation of POGG adopted by most jurists, allows an unlimited scope of power for action on the conferee – legislative or executive. Keith’s interpretation is ostensibly one with originalist foundations; the power has always had that meaning for lawyers (and judges too of course). I consider, in this regard, the typical originalist argument that has been made in support of the subjective interpretation through a critique of the position of Jeffrey Goldsworthy, a leading originalist who has specifically discussed POGG in the context of originalism. Drawing in part on the reflections of leading Canadian thinker John Ralston Saul, and complementary historiographical evidence from colonial history, law and politics, I construct the case for an objective interpretation of POGG and challenge the basis of the prevailing subjective view. In recognition of the formidable force behind the subjective approach to the interpretation of the POGG clause, the third part of the chapter anticipates further possible objections to my arguments for a change regarding the application of the POGG clause. This concerns the connection of the clause to the legislative power of parliaments usually as an expression of legislative supremacy, or its inclusion in the federal division of legislative, or even, at times, executive, power in federations. I examine these connections and suggest that they are not required. In view of the foregoing analysis, I suggest a change in the interpretation and application which I contend is more in tune with a critical assessment of the history and implications of contemporary interpretation of the POGG power in the Commonwealth. I suggest in the ­alternative that it be discarded from Commonwealth constitutions.

Commonwealth constitutionalism – politics and courts of law Courts, like the political institutions of the state, are shaped not only by law, but also contextual social and political factors of their establishment as well as their self-perception of their role in society. Significantly, courts, from an institutional point of view, are naturally at the centre of the intersection between law and politics, the interaction of which drives the idea of constitutionalism. Constitutionalism – the core idea of which is that the exercise of public power as well the operation of political institutions must be subject to a superior law to

Law, politics and peace, order and good government 195 be observed by all2 – is one that is critical to the context of societies which have emerged as contemporary states from a medley of nations. This is especially the case with most, if not all, of the countries that now make up the Commonwealth – the legacy of the British Empire. This part focuses mainly on a procedural critique of the independence and neutrality of the JCPC given the political status of the Privy Council. In modern constitutionalism, judicial neutrality is a major element of procedural fairness in the adjudicatory process and is considered a key virtue of the judiciary.3 Psychological research strongly supports the proposition that perceptions of adherence to procedural fairness by legal and political authorities are central to their legitimacy and social attitudes of obedience, respect and acceptance of them.4 In other words, institutional legitimacy is important particularly because it generates in individuals and groups feelings of obligation to defer to institutions, authorities and all forms of social arrangements.5 On this view, ‘legitimacy and institutional credibility go hand in hand’.6 By legitimacy, I mean ‘the belief that authorities, institutions, and social arrangements are appropriate, proper, and just’.7 This would appear to have influenced the fact that the very appearance, but not necessarily proven incidence, of bias is the common legal standard set for recusal of judicial officers from adjudication.8 Thus, there is recognition of the need to foster and protect the institutional legitimacy of the judicial institution. This institutional legitimacy rests substantially on perceptions of its neutrality. The judiciary as an institution of the state, unlike the legislature, and the executive is ordinarily regarded as a non-partisan, disinterested umpire in securing compliance with the rule of law through interpretation of law and resolution of disputes between individuals and the state, individuals among themselves and even among the institutions of the state. A major benefit of judicial neutrality (or at least perceptions of it) is how it mediates public dissatisfaction with judicial decisions; the public are able to accept unpopular judicial determinations by virtue of the judiciary’s perceived neutrality.9 The foregoing view of the role of the judiciary has secured for the institution at least a notional and at best hallowed status in society. This is particularly critical for the judiciary, which usually lacks the financial or coercive power or force at the disposal of the other two arms of government. But what happens when a judge or judicial institution also directly performs a political role? This is precisely the situation with the JCPC in the context of its adjudicatory function as the highest court for the colonies in the British Empire and also as part of the Privy Council. Is it tenable to have such an institution set the legal standards and settle disputes as a court, and a final one at that (although notionally, in an advisory capacity)? What does this apparent conflict portend for the rule of law? The Privy Council, it has been noted, ‘is one of the oldest surviving emanations of the royal prerogative’, with links that go as far back as at least the middle of the twelfth century. At the time, the monarch actively governed, ‘advised by a small clique of knowledgeable ministers and advisors’.10 It was a feudal council, in the conduct or supervision of executive, judicial and legislative functions.11 The JCPC (as distinct from the Privy Council) was created in 1833. Assessing the connection

196  Colonial and Post-Colonial Constitutionalism in the Commonwealth between law and politics in the specific context of colonialism and the role of the JCPC as a supreme tribunal, Nadini Chaterjee has asserted that ‘What is undeniable is that historically, it has been impossible to separate imperial law from imperial politics’.12 This presents an almost unique circumstance with regard to the role of the JCPC in the British Empire even where it has ceased, as is the case with many Commonwealth jurisdictions, to have the status of a final court. The status of the Privy Council as a political as well as legal institution is conceivably of relevance to its construction of an important power like the POGG clause. Imperial rule of law, the Judicial Committee of the Privy Council and ‘peace, order and good government’ The JCPC continues to have an influence beyond historical significance in Commonwealth constitutionalism. Even if the JCPC’s relevance were limited to a historical one, it will still remain a considerably influential judicial (and, of course, political) institution. But, as we know, the JCPC still has actual influence and jurisdiction in the Commonwealth as it remains a court of final appeal for some of its jurisdictions. As stated on its official website: ‘The Judicial Committee of The Privy Council (JCPC) is the court of final appeal for the UK overseas territories and Crown dependencies, and for those Commonwealth countries that have retained the appeal to Her Majesty in Council or, in the case of Republics, to the Judicial Committee’.13 So significant has been the role of the Judicial Committee of the Privy Council that, as recently as the 1930s, it was reputed to be the highest court for about a quarter of the whole world.14 The British government made spirited attempts to abort the hearing in what developed into the Bancoult litigation. The failed attempt is well articulated in the objections raised by the government to the application for judicial review in R v Secretary of State for the Home Department ex parte Bancoult (‘R v Bancoult’)15 and references made to it in Bancoult No 1 in 1998 and 2001 respectively. The arguments included that the United Kingdom was not the proper forum for hearing a case of the expulsion and exiling of a whole community in the Chagos Archipelago although it was carried out under laws made by the UK government and by Whitehall civil servants or at their behest. Another part of the objection was that the judiciary of the Chagos Islands is the appropriate forum because similar conflicting action could be commenced there leading to the possibility of a conflict of jurisdiction. This objection was clearly counterintuitive for conveniently ignoring the reality of the prospects of this course of action. Such a course was, to the knowledge of the UK government, practically non-existent. The Chagossians had been deported and provisions for the courts were mostly limited to a paper exercise. The issue of access to the archipelago was and remains the main point in the case. As Scott Baker J specifically observed on this objection, ‘the evidence suggests that the BIOT court, in its whole existence, has only sat on three occasions. Realistically, if it sits in this case, it would not sit in the BIOT; it would sit here in London.’16 However, the last leg of the objection to the jurisdiction of the Queen’s Bench Division is the most

Law, politics and peace, order and good government 197 intriguing. It was the contention that even if a court in the United Kingdom was to hear the case, it should be the JCPC, and I return to this shortly. Suffice it to say that all three arguments failed. The Bancoult litigation has turned out to be very important in the way it has drawn attention to the rule of law from a colonial as well as contemporary perspective in what was the British Empire and is now the Commonwealth. This is no doubt an area of law that has progressively attracted less attention until fairly recently (and even then, in rather patchy form). The question remains however: why the preference of the UK’s counsel for the JCPC, when some consider, no doubt following the dicta of Lord Radcliffe, that the JCPC ‘is not in essence an institution of the United Kingdom’?17 For the sake of emphasis, it is relevant to point out that the British government’s counsel further repeated the argument as to the preference of the JCPC as appropriate judicial forum for hearing the case in this way: the Privy Council is the ultimate appellate court in relation to colonial law; the principles applicable to the interpretation of colonial constitutions are sui generis and the consequence of allowing such a review in the English courts is that an appeal will ultimately be heard not before the Privy Council but the Appellate Committee of the House of Lords.18 The doctrine of forum non-conveniens is a strong shield utilised by a defendant and there is presumably a story behind any recourse to it. The government’s counsel, like most others, was aware that considering its origins in the Curia Regis,19 the JCPC is a surviving part of what can be considered an emperor’s court. The justification offered by counsel to the United Kingdom in R v Bancoult is illuminating on the point: only that judicial forum was appropriate because ‘sitting on Privy Council, there would be the opportunity to have a person or persons particularly experienced in this field’.20 This framing of the role or nature of the adjudicatory function of the JCPC has historical pedigree in the British Empire and current relevance in the Commonwealth with regard to colonial constitutionalism. The historical relevance is significant even if only for the extent of the sheer geographical reach of the JCPC. By the turn of the twentieth century, the JCPC was the court of last resort for over a fifth of the global land mass containing roughly a quarter of the world’s population.21 It even served as the final appellate tribunal for select courts established by special agreement specifically for British citizens outside of the British Empire in various parts of the world.22 So the preference of the counsel for the British government for the JCPC from the perspective of its historical relevance is not at all misplaced. But it would be naïve to assume that this was the only or even the main reason for the preference. The preference seems to be informed by pragmatism. This is because the JCPC’s role in the interpretation of the various Commonwealth constitutions and their provisions, which usually included the POGG power, was arguably susceptible to political considerations. This is due to the fact that it was not simply an imperial court, but actually part of the highest political institution responsible for advising

198  Colonial and Post-Colonial Constitutionalism in the Commonwealth the British Crown in the administration of its Empire.23 Although initially vested with jurisdiction over England, Wales and Scotland, it had lost most of its domestic jurisdiction as it gained increasing jurisdiction over the vast dominions24 of the British Empire.25 As one commentator puts it, ‘The King, the Navy and the Judicial Committee are three solid and apparent bonds of the Empire; for the rest, the union depends on sentiment.’26 The JCPC’s jurisprudence on the POGG power in Canada provides a reference point for reflection on the history, law and politics of arguably the most contestable and contested clause in Commonwealth constitutionalism. This has resonance for other jurisdictions particularly with reference to the theory and practice of federalism. With the benefit of hindsight, it is arguable, for instance, that the JCPC’s preference for a de-centralising jurisprudence in Canada best served the interest of empire. A weak centre, contrary to the founding fathers’ vision, directly or indirectly works to the benefit of London. Strengthened provinces naturally could not act in concert to undermine London but a strong centre conceivably could. The political and imperial mind-set of the JCPC in its final tribunal role is not a matter of speculation. Lord Haldane, one of the most renowned Privy Councillors (and later Lord Chancellor), once stated that an understanding of the nature of the JCPC is central to comprehension of its jurisprudence. Due to its advisory capacity to the Crown-in-Council, it ‘has to take into account what the relation of the King is to the dominion or part of the Empire from which the appeal is brought’.27 Thus, for instance, it was disposed sometimes to refuse leave to appeal to the King-in-Council from parts of the Empire like Newfoundland and Canada (then separate parts of the Empire) which were deemed to be ‘developed’ with ‘well organized courts’ and a sense of entitlement to determine their own cases.28 This circumstance not only potentially situated the JCPC as a final appellate court lacking neutrality in violation of the doctrine of judicial independence as we know it today, but also one that was open to interpretative preferences with wider political considerations in view. It would appear that the higher the significance of the constitutional provision involved, particularly in terms of its political ramifications, the greater the interest of the Crown and, conceivably, the potential for the political side of the Privy Council to undermine the JCPC’s judicial independence and neutrality. In discussions of the roles of public officials, it is in the discharge of the judicial function that questions of neutrality most acutely intrude.29 The peculiar nature of the Privy Council raises an important, though admittedly not decisive, issue about the legitimacy of the JCPC’s decisions. At least, to the extent that the strongest justification advanced by ardent supporters of the JCPC for preserving its appellate jurisdiction is its presumed neutrality, there is an irony in interrogating that specific virtue. Supporters of the JCPC claim that in the context of heterogeneous societies forged into cognate entities through colonial rule (typical of the British Empire), the JCPC was court-sent – just the judicial institution required to ensure justice. As a judicial forum far removed from local circumstances, it was an impartial umpire best suited to ensuring justice in the Empire (and later

Law, politics and peace, order and good government 199 the Commonwealth) through its ability to protect minorities – ethnic, religious and cultural, as in Canada for instance. This is because the JCPC is free from the baggage of ‘local prepossessions’ which ostensibly influence national judicial forums prejudicing their required impartiality in the performance of the judicial function.30 Yet, even in what has been described as the ‘most influential defence’ of the JCPC,31 Alan Cairns conceded the point about the difficulty in upholding the neutrality of the members of the JCPC on their most interrogated role – that of moderating federalism in Canada.32 As Cairns explained, the argument in support of the appellate jurisdiction of the JCPC (specifically in the context of Canada)33 is that it is a ‘great virtue’ that there is no direct link between the JCPC and parties ‘whose interests clashed in the court room’.34 There are of course many reasons to challenge this claim, not the least being, as many critics recognise, the plain imperialistic presumption embodied in it – ‘local’ justice was inadequate and less qualitative.35 Rather, the situation in the various parts of the Empire required ‘wise’, typically old men far removed from the context, to deliver justice. Juxtaposing this argument with contemporary criticism of the jurisdiction of the European Court of Human Rights (ECtHR) helps for an appreciation of how unacceptable similar arguments would be in the ‘Mother country’, were tables to be turned even for a brief period. Senior judges and politicians across party lines have made strident and negative comments about the ECtHR as a result of some of its judgments.36 The ECtHR has been accused of wrongly seeking to serve as the ‘supreme court’ of member states as well as ignorance or neglect of local circumstances of the member states of the Council of Europe, to take just two such comments. The comments of Lord Hoffmann, then a very senior Law Lord, in a speech he delivered to the Judicial Studies Board in 2009 shortly before his retirement is illustrative of the criticisms of the ECtHR. According to Lord Hoffmann, if one agrees that ‘while human rights are universal in abstraction but national in application’, there was no justification ‘in principle’ to have ‘an international court’ decide individual cases and ‘still less why the Strasbourg court was thought a suitable body to do so’.37 The standards of criminal procedures may ‘differ widely’ in the various countries ‘without any of them being unfair’.38 Similarly there may be ‘the trade-offs’ between ‘individual rights and effective government, or between the rights of one individual and another’ based on ‘local circumstances and legal tradition’ which ought to be respected.39 The court’s application of the doctrine of ‘margin of appreciation’ designed to respect national peculiarities and allow room for sovereign action to meet national needs has not been correctly deployed. Rather, the ECtHR, Lord Hoffmann declared, ‘has been unable to resist the temptation to aggrandise its jurisdiction and to impose uniform rules on Member States’ and has, in the process, been ‘laying down a federal law of Europe’.40 Now, juxtapose the JCPC and its general imperial nature and mostly UK composition with the ECtHR. The ECtHR is a court which the United Kingdom actively participated with others in forming, drafting its human rights treaty and represented in its membership drawn from across member states of the Council of Europe.

200  Colonial and Post-Colonial Constitutionalism in the Commonwealth In any event, Lord Hoffmann’s comments predictably attracted both support and criticism. But the point of interest here is that parallel arguments on the need for a court that is aware of and understands the context in which the cases for determination arose rated highly in the case against the continued appellate jurisdiction of Privy Councillors in London over cases emanating from as far flung places as Canada, India and Australia. The criticisms of the JCPC coupled with a sense of nationalism were responsible for the cessation of its appellate jurisdiction in most independent Commonwealth countries like Canada.41 This is, of course, as it should be since courts, like laws and other institutions of society, do not exist in a vacuum. It is certainly relevant, as Cairns noted, for the effective performance of their critical role that judges are possessed not only of local knowledge, but also ‘continual feedback of relevant information on which wise and sensitive judging depends’.42 The need for objectivity and impartiality central to the judicial function is not impaired by such awareness; rather, it is arguable that they are central to effectiveness and legitimacy of the judicial role. As Cairns put it, ‘Unless judges can be made aware of the complexities of their role as judicial policy-makers, and sensitively cognizant of the societal effects of their decisions, a first-rate judicial performance will only occur intermittently and fortuitously.’43 In reality, the institutional positioning of the Privy Council as a factor which undermined the integrity of the decisions of the JCPC was not simply a remote possibility. It has been identified as being influential in its decisions involving the British North America Act 1867 (‘BNA Act 1867’). It played out in several decisions of the JCPC. The Canadian case, Nadan v The King (‘Nadan’),44 is illustrative of the point. Jacqueline Krikorian points out that the decision, which voided an 1888 Act that excluded criminal appeals to the JCPC,45 was, foremost, a political masterstroke rather than a neutral judicial determination on law and facts. Until this 1926 decision, the JCPC had refrained from commenting on the Act despite several opportunities to do so, but declared urgency on that occasion to decide on the matter.46 Krikorian contends that Viscount Cave as Lord Chancellor actively played both a legal and political role in the determination of the case by the JCPC to ensure its decision in Nadan facilitated the designs of ‘imperial policy’.47 The ‘urgency’ identified by the JCPC in the matter was a pre-emptory move to circumvent any attempt by the Irish Free State to limit the right of appeal to it. This was in order to protect a number of concerns of the British in Ireland, including protection of its minorities there.48 According to Krikorian, the circumstances of the case show clearly that the decision was ‘written for the “benefit” of the Dublin government’, which was at the time pursuing the abolition of appeals from the jurisdiction to the JCPC. The decision was in the interest of empire rather than justice for the litigants and the Dominion of Canada. In striking down the Canadian legislation in 1926, the Law Lords effectively used the Judicial Committee to limit the legislative options available to Irish officials and further British imperial policy objectives regarding the Irish Free State.49 The POGG clause was an important pivot in the process of judicial review in Canada. The implications of the cases that have been considered on the footing

Law, politics and peace, order and good government 201 of the POGG power during the period when final appeals from Canadian courts went to the JCPC have had monumental impact on Canadian socio-political and constitutional development. The doctrine of precedent plays a major role in ensuring that the JCPC’s decisions continue to reverberate beyond its active participation in Canadian constitutionalism. However, evaluations of the role of the JCPC in this context, as discussed in Chapter 2, disclose the overly political nature of the discharge of that role. In this regard, it was not uncommon that the members of the JCPC considered politics and policy making as part of their role; indeed, rather the opposite. Lord Haldane, speaking about the work of the JCPC and its service to empire, eulogised Lord Watson, one of his most notable predecessors (and, no doubt, a great source of inspiration for him), commended the latter’s ‘large political experience’ which made him ‘invaluable’ on the JCPC.50 He had earlier praised Watson as an ‘Imperial judge of the very first order’.51 The role of such a judge of ‘the supreme tribunal of the Empire’, for Lord Haldane, extended beyond deciding ‘what abstract and familiar legal conceptions should be applied to particular cases’, to being ‘a statesman as well as a jurist, to fill in the gaps which Parliament has deliberately left in the skeleton constitution and laws that it had provided for the British Colonies’.52 According to Lord Haldane, Lord Watson ‘rendered an enormous service to the Empire and to the Dominion of Canada by developing the Dominion Constitution’.53 This praise of the pre-eminence of Lord Watson came as a result of how Lord Haldane viewed Lord Watson’s approach to the interpretation of the BNA Act 1867. Following its enactment, a feeling developed in some quarters that it was directed at ensuring a centralised approach to government in Canada which subordinated the status of the provinces and led to some opposition which resulted in ‘a great fight’54 but through: a long series of decisions Lord Watson put clothing upon the bones of the Constitution, and so covered them over with living flesh that the Constitution of Canada took a new form … I remember, too, his wonderful statesmanlike attitude in dealing with cases from other parts of the Empire.55 As René Richard has noted, Lord Haldane was not merely a ‘credible witness’ of Lord Watson, but also an informed source on the fact that the JCPC was substantially, if not totally, led by policy rather than law in the shaping of fundamental aspects of Canadian constitutionalism.56 This was particularly the case with regard to the construction of legislative powers in sections 91 (which included the POGG power) and 92 of the BNA Act 1867.57 The characterisation of the nature of the work of the JCPC as political rather than judicial, even by Lord Haldane’s proud admission, is true of the ‘service’ of the JCPC to the Empire as a whole.58 It did not matter at all then, as it most probably would now, that such antecedents of the members inevitably led to ‘political jurisprudence’.59 In what would be considered contrary to contemporary conceptions of judicial independence and neutrality, the JCPC declared its role as not being judicial but

202  Colonial and Post-Colonial Constitutionalism in the Commonwealth political.60 However, it is relevant to recall that the reference point of the critique has been a particular conception of judicial independence. It is easy to forget this point, given the nature and strength of modern liberal thought on judicial independence as a sine qua non of the rule of law and democracy. This is significant because judicial independence as currently conceived, even in the experience of a liberal democracy like the United Kingdom, is a relatively new phenomenon. Moreover, recognition of the context of the JCPC’s work as the supreme tribunal of the Empire is particularly relevant in the circumstance of the historiographical approach adopted in advancing some of the arguments in this and some other parts of this book. After all, as Vaughan noted on the colonial circumstance of Canada, ‘The exercise of judicial statesmanship by the Judicial Committee was clearly consistent with the exercise of Imperial power over the colonies … However foreign judicial legislating may now appear to us today, in the ­nineteenth century it was a respectable doctrine.’61 Notwithstanding, this allowance does not obviate the need to advocate a change or non-adherence to the interpretive preferences of the JCPC regarding POGG. If anything, it provides additional basis for advocating a move away from the orthodoxy established as to the purport of POGG through the common law doctrine of precedent. This is because the judicial authority through which the prevailing interpretation came about will be questionable today for failing the contemporary standard of adjudication. With the foregoing discussion of the coloured judicial context of the interpretation of POGG at the highest level, it is fitting to move on to the argument for a change to the dominant interpretation of POGG. The main option suggested is the adoption of an objective rather than the dominant or orthodox subjective interpretation of the clause.

Peace, order [welfare] and good government – the case for an objective construction The prevailing academic and judicial position on POGG has been described by Keith as the subjective one. According to Keith: By modern usage the power of the Legislature is to legislate for the ‘peace, order and good government’ of the territory, and there can be no doubt that the phraseology agrees in effect with the older peace, welfare, and ‘good government’ or the Victorian power to make laws in all cases. The means to these ends are entirely for the judgment of the legislature which enacts; the test is subjective, not objective, and no Court can substitute its views of what should be enacted for those of the Legislature. This was laid down in Riel v. The Queen.62 Contrary to this subjective interpretation of POGG, it is contended here that an objective view of the POGG clause is to be preferred. Saul’s exposition of peace, order [welfare] and good government is objective in terms of Keith’s categorisation, stated above. In contrast, Jeffrey Goldsworthy’s ‘originalist’ interpretation is

Law, politics and peace, order and good government 203 subjective and in line with Keith’s view. Their opposing perspectives represent the fault lines and tensions in the application and understanding of the concept of the POGG power in Commonwealth constitutionalism from the historical, political and legal points of view – themes engaged in this study. Considering its prevailing hold on the interpretation of POGG, it is apposite to advert first to the subjective interpretation of the clause ostensibly based on originalist foundations. The discussion proceeds first, therefore, with an examination of Goldsworthy’s position. Jeffrey Goldsworthy and the originalist objection Originalism is ostensibly the mainstay of the prevailing interpretation of the POGG clause. Indeed, a leading originalist and expert on Commonwealth constitutionalism, Goldsworthy has, on a number of occasions, picked on the specific example of the interpretation of the POGG clause to elucidate the originalist position on constitutional interpretation, and engagement with his views is useful in this regard. But first, what is originalism? There is a flourishing literature on originalism and I will only provide a very brief statement of its central idea here.63 The central feature of originalist thinking on judicial interpretation is the tying back (a freezing) of interpretation to the time the law was made. This is because law, either statutory or as constitutional provisions, ‘necessarily has a meaning that pre-exists judicial interpretation of it’, which needs to be preserved because to change that meaning is to change the law.64 There are two main types of originalism: ‘textualism’ and ‘intentionalism’. Textualism is the view that a legal provision must mean what it was taken to mean originally, namely at the time of enactment. So textualists ‘invite the interpreter to focus on the text enacted and read it in the light of its social and linguistic context at the time of adoption’.65 This requires judges to ‘immerse themselves in the society which adopted the text and understand the text as they understood it then’.66 Intentionalism differs from textualism by requiring that we engage with the intention of the drafters of the law so that we ensure legal provisions apply to the type of cases or situations conceived by the makers. Thus, intentionalists understand ‘legal interpretation to be a form of conversational interpretation’67 between the judge as interpreter and the maker and, as a result, the judge in the task of interpretation ‘place a lot of emphasis on drafting history and preparatory works’ in the ‘bid to retrieve the original understanding of particular legislators’.68 Goldsworthy, ostensibly based on the originalist theory of legal interpretation, disagrees with an objective or, as he called it, ‘literal’, interpretation of peace, order [welfare] and good government. Indeed, for originalists, one word does not and cannot specifically in the context of the phrase ‘peace, order and good government’ be severed to achieve a better ‘moral’ interpretation in what has become a ‘stock phrase’. Goldsworthy argues that not only has ‘peace, order and good government’ meant the same thing as peace, welfare and good government but also that both mean a plenary power to make laws. In a representative contribution on his views in this regard aptly titled ‘The Case for Originalism’,69 he set out eight propositions on the ‘best argument for originalism’.70 To illustrate

204  Colonial and Post-Colonial Constitutionalism in the Commonwealth the difference between originalist and non-originalist interpretation, Goldsworthy actually addressed the example of the POGG clause with specific reference to section 51 of the Australian Constitution, which confers legislative powers on the Commonwealth (national) Parliament.71 Goldsworthy stated that POGG ‘has a well-known original meaning – a technical legal meaning very different from its literal one – which originalists insist that judges must continue to accept’.72 According to Goldsworthy, ‘read literally, in ignorance of its intended original meaning’, POGG could be understood as limiting Parliament’s powers ‘by authorizing judges to invalidate legislation that, in their opinion, is inimical to the peace, order, and good government of the Commonwealth [of Australia]’.73 This may include, for instance, any law that can be considered as being in violation of current understandings of human rights. He noted that non-originalists would argue that even if the founders of Australia intended those words to grant plenary powers, such an intention is not decisive of the matter and the words are ‘capable of bearing the opposite meaning’.74 Such an interpretation, he claims, would, however, be wrong because in 1900, when the Constitution was enacted, ‘the phrase was well understood by lawyers to have the opposite meaning’.75 The Privy Council, he noted, had earlier held that ‘it did not impose judicially enforceable limits to the legislative powers it granted’.76 Rather: It was a stock phrase that the Imperial Parliament routinely used in colonial constitutions to confer plenary power – power not inherently limited, although possibly subject to extraneous limits – with respect to enumerated subject matters.77 Consequently, he concludes, it is not open to judges to choose another meaning ‘in order to achieve the morally best result’ as this will change the meaning of the Constitution.78 David Dyzenhaus has noted the flaw in this argument. As he rightly pointed out, the Commonwealth Constitution does not provide that the Australian Parliament had an ‘unlimited, plenary power’. Rather: It spoke, for instance, of ‘good government’. If the Australian Parliament sought to change the system of government by installing a dictatorship, a power that was once thought to be both non-justiciable and without limit, could, for good reason, be found by judges to be both limited and justiciable.79 As he notes further, ‘Goldsworthy’s claim about this provision is no less vulnerable than claims that used to be made about the non-justiciability of the [royal] prerogative’.80 It does not logically follow ‘as Goldsworthy thinks it must, that judges are only entitled to give a new meaning to a constitution because an original meaning cannot be discovered, so that it may be said both that there is an indeterminacy and that judges are entitled to rectify it’.81 Indeed, the argument here is that with a careful historiographical inquiry, there is no basis at all to assume that POGG has the fixed meaning ascribed to it and which has come

Law, politics and peace, order and good government 205 to prevail on the basis of an originalist theory or approach to the interpretation of the clause. Predictably, Goldsworthy cited in support of his claim R v Burah and another (‘Burah’),82 and its progenies like Hodge v Queen83 and Louis Riel v The Queen ex parte Riel (‘Riel’),84 which set the tone for the prevailing subjective interpretation of POGG.85 However, taking into account the evidence, an appeal to originalism as provided by Goldsworthy does not support the case for the prevailing subjective interpretation of POGG. The historical point on the intended meaning of POGG is more assumed than real and mistaken from the start. As alluded to earlier, and elaborated below with various examples from jurisdictions across the Empire and later the Commonwealth, there is ample evidence that the POGG clause emerged from a welfarist intention. Thus, while not necessarily subscribing to originalist theories of interpretation, it is germane to note that the intentionalist branch of originalism which has been called in support of the subjective, ‘stock phrase’ interpretation of POGG is not on the solid foundations to which jurists have customarily referred. Rather, the intention of the initial drafters of POGG was the plain literal meaning of those words, not a ‘stock phrase’ or ‘term of art’ progressively ascribed to it. On the original record, it is far from clear that but for the uncritical interpretation of the earliest authorities on the purport of POGG, it was hardly meant to be a stock phrase signifying a conferral of plenary or unlimited legislative powers at all. Burah was not decided on the purport of POGG but rather the nature of the agency or otherwise of a colonial legislature as against the imperial legislature. Yet, it set off the chain of references which crystallised the interpretation into what we now have as the orthodox interpretation of POGG. A fait accompli has been delivered on the prevailing meaning as a direct product of the ensuing impact of the misapplied meaning of Burah in subsequent cases like Riel and Russell v The Queen,86 as a result of the common law principle of precedent than any general record of its historical formulation and application and this has been perpetuated by judges and writers alike, the latter across the fields of colonial history, politics and law, perhaps in that order. Of course, the intervention of the legal academy has been most regrettable given its implications for Commonwealth constitutionalism. Case for an objective interpretation – John Ralston Saul and the evidence from colonial history, law and politics The remarkably contentious nature of the purport and relevance of the POGG power, as previous discussion has shown, has been the subject of extensive comment in Canadian constitutionalism more than any other Commonwealth jurisdiction. John Ralston Saul’s A Fair Country: Telling Truths about Canada87 does not lay claim to being a study on law or constitutionalism. Yet, its discussion of POGG encompasses critical aspects of the Canadian legal and constitutional history, both of which are relevant to the development of Commonwealth constitutionalism generally and POGG particularly. Saul’s exposition in the second part of A Fair Country focusing on peace, order [welfare] and good government, which he

206  Colonial and Post-Colonial Constitutionalism in the Commonwealth terms ‘Peace Fairness and Good Government’,88 provides an excellent point of departure for arguing the case for an objective interpretation of POGG. Though the book is focused on Canada, his discussion of POGG has wider significance for the application and understanding of the concept across the Commonwealth, as is evident in the preceding chapters. A world of difference – ‘welfare’ or ‘order’? The conceptual variation in and implication between welfare and order makes a crucial difference in the interpretation of ‘peace, welfare [order] and good government’89 For Saul, the orthodoxy of the interpretation of POGG, which he challenges, is based on the difference between those two words now taken to be interchangeable. According to Saul, ‘peace, order and good government’ describes nothing but ‘an obsession with some sort of paternalistic control over society justified by the need for efficient administration’.90 Saul argues that ‘peace, order and good government’ ‘doesn’t make much sense’91 because: If you have peace and you have good government, you must also have order. So this is tautology, unnecessary repetition. But by its insistence on a narrow concept of power, the phrase perfectly illustrates an insecure elite’s idea of how such a society could be managed.92 He goes on to argue that rather than the commonly held notion that POGG reflects the character of Canadian society, it is disconnected from it.93 Instead, it is ‘peace, welfare and good government’ that is in tandem with Canadian reality. There is a world of difference between ‘welfare’ and ‘order’. The difference between the two holds the key to how Canadian society has been built. ‘Order’ implies a state of fear and insecurity necessitating an imposition of some form of control – power.94 ‘Welfare’, on the other hand, is about fairness and inclusiveness and general societal well-being – creating a ‘circle of fairness’.95 To demonstrate the difference, Saul traces how provisions had always been made to assist migrants to Canada to settle down in their new homes from an early period in Canadian history.96 He admits that ‘welfare’ has had a pejorative run after some of the hitherto successful social welfare programmes to assist the less well-off in society ‘seem to backfire’ and developed into a situation where it came to connote untoward interference in people’s lives.97 He argues, however, that the ‘real meaning of welfare over the preceding half-millennium was perfectly clear: faring well, well-being, bien-être, being well, fare ye well, good fortune, happiness, bonheur, felicity’.98 On this account, whenever ‘welfare’ was used by a government, it clearly referred to the ‘public good’.99 It meant ‘public weal’, ‘welfare of the people’ and, ultimately, ‘welfare of the state’.100 Through a historiographical account, he maps out how ‘welfare’ referred to ‘the well-being of the individual within a society’.101 This was the ‘clear and stable’ meaning of welfare from ‘the early Middle-Ages to the middle of the twentieth century’.102 He goes on to suggest that peace, welfare and good government seems

Law, politics and peace, order and good government 207 to have its root in instructions given by Henry VII in 1489 to the powerful Justices of the Peace who were his representatives in different parts of the kingdom.103 Irrespective of the intentions of colonial officers in London, the words ‘peace, welfare and good government’ did have specific content and meaning which in Canada revolved around securing fairness to all.104 Welfare, he argues, was the reason for the Constitution Act 1791 which brought Anglo and Francophone Canadians into a single Assembly. A return to the bit of British history relating to the origins of POGG is germane here. As stated earlier – and this is a point Saul equally emphasises105 – fifteenthcentury England had a system of local government that relied to a large extent on Justices of the Peace. Corruption and abuse of office by many Justices of the Peace raised concerns which led to the need for a redefinition by Henry VII of their roles and provisions for redress for their excesses against the public. The King was very concerned that his subjects had suffered much in the hands of corrupt public officials holding office as Justices of the Peace. He was aware that they had been ‘previously hurt and out of surety of their bodies and goods’ and desired this be stopped forthwith.106 He made clear that for him, there: is nothing more joyous than to know his subjects to live peaceably under his laws and to increase in wealth and prosperity, and to avoid such enormities and injuries, so that his said subjects may live more restful under his peace and laws to their increase.107 To ensure this, every Justice of Peace was to make a proclamation publicly four times a year within the area of their jurisdiction, to check impunity. ‘The Proclamation’ set out full acknowledgment of the wrongs and subversions of the law being made by corrupt Justices of the Peace and requested anyone aggrieved to complain to the next available Justice of the Peace and, where justice was not done, to the Justices of Assizes, who visited the shires from time to time to hear and determine such complaints. It further provided for appeals to the King or his Chancellor where the complainant remained aggrieved. Saul has argued that the Justices of the Peace Act 1489 was made in the letter and spirit of securing the wellbeing – welfare – of the public. This was done in language that included part of the formula that developed into the ‘peace, welfare and good government’ clause across the British Empire and, subsequently, the Commonwealth. It is plausible to argue that this Act is the seedbed of POGG.108 There is historical evidence that the roots of the system of colonial governance in the British Empire are to be found in the British Isles.109 So, it is logical to argue that the substitution of ‘order’ for ‘welfare’ imports a radical difference into the nature of the legislative power in contemplation. Saul further makes a convincing argument for why ‘order’ could not substitute ‘welfare’ and be conjoined with ‘peace’ and ‘good government’ to produce what has come to be regarded as a ‘stock phrase’.110 Such substitution leads to a radical change in the nature and meaning of the phrase. Saul calls in support the history of the use of ‘welfare’ as against ‘order’ in Canadian political and constitutional

208  Colonial and Post-Colonial Constitutionalism in the Commonwealth history. He states that for more than a century, ‘welfare in its public good/bienêtre sense’ rather than ‘order’ was ‘used almost exclusively to join Public Peace to Good Government’.111 A word can, and does in this case, make a lot of difference. Saul provides convincing and germane historiographical evidence to support his argument. As stated earlier, POGG appears to have made its first entry into Canadian constitutional lexicon in the Instructions issued to its pioneer GovernorGeneral, James Murray, by King George III in 1763. This was in contrast to his Commission which conferred powers on him for ‘public peace, welfare and good government’.112 The question is, why the divergence? A little probing will shed some light on this but first an additional historical point is relevant to the analysis here. In their various negotiations in Charlottetown, Quebec City and London, between September 1864 and December 1866, the ‘Fathers of [Canadian] Confederation’ had inserted the formula ‘Peace, Welfare and Good Government’ in their resolutions.113 This ‘Welfare’ formula was retained in the first three drafts of the BNA Act 1867 which was produced from the resolutions. It remains a mystery how it was changed to ‘Peace, Order and Good Government … with the arrival of Lord Carnarvon, a Conservative, as the new colonial secretary’.114 To return to the point about the reason for the apparent divergence on the inclusion of ‘order’ as against ‘welfare’ in the BNA Act 1867 once it got to the mandarins in the colonial office in London, one can hazard three possibilities. The first is that the change was a result of inadvertence on the part of the draftsmen in London. This seems unlikely and unrepresentative of the context. Indeed, it ought to be dismissed without further comment. Surely, the documents were too important for such negligence. As Saul points out, the context involved political players of sometimes vastly differing socio-political convictions. They had arrived at the resolutions which formed the basis of the BNA Act 1867 and may in the course of deliberations, indeed would, have made some compromises. This is in the nature of forging such fundamental agreements. Logically they could be thought of being incapable of predicting the future impact of their agreements. However their ‘choice of words was intentional’.115 In other words, they would have been quick to spot the difference. The second possibility is that the change was deliberate: the expression ‘peace, welfare and good government’ means the same thing as ‘peace, order and good government’ – they are inter-changeable. This is again unlikely because, as Saul has pointed out, ‘order’ was not and is still not a synonym of ‘welfare’.116 The third possibility is that the change was deliberate because the two expressions did not mean the same thing. This last reading finds favour with and is canvassed by Saul as it is based on a close analysis of early Canadian colonial history. Saul points out that two of three important and related public documents – the Royal Proclamation of 1763 and the Commission appointing Murray – contain the formula ‘peace, welfare and good government’. The third document, private instructions issued to Murray further to the Royal Proclamation and his Commission, referred to ‘peace, order and good government’. As a consequence, there was a tension between the public and private documents to guide Murray. A Scottish Catholic, Murray belonged to a progressive set of ‘political reformers’

Law, politics and peace, order and good government 209 who were keen to ensure fairness in and for the colonies in all matters, including in the case of Canada, preserving the economic rights of French traders to participate effectively in the lucrative fur trade. In short, Murray and other reform-minded colonial officers had affinity for ‘welfare’ rather than ‘order’ in the colonies. Welfare ensured fairness to French Canadians and guaranteed their enjoyment of religious and language rights. These were citizens’ rights which ‘no Catholic could hold in Britain’.117 His correspondence with the Lords of the Board of Trade in London, the office responsible for the affairs of the colonies at the time, clearly revealed his disposition on the matter. He was alarmed that: Little, very little will content the New Subjects but nothing will satisfy the Licentious Fanaticks Trading here but the expulsion of the Canadians who are perhaps the bravest and the best race upon the Globe.118 This formed part of a letter he wrote to justify why he established courts which allowed for French jurors, judges and lawyers as well as the use of French language to ensure effective representation and continued loyalty of the French minority in the province. On their part, the Lords of the Board of Trade led a group that viewed the colonies as ‘mere economic opportunities’.119 This group resented Murray’s (and, later, Governor Guy Carleton’s)120 preference for fairness in the administration of the colonies and worked at upstaging it.121 Of course, Saul’s account of the struggle between the English and French traders (and even others like the Portuguese and the Spanish) in Canada is one with which anyone with a general knowledge of the workings of British colonial rule from Calcutta to Cape Town and the Sene-Gambia to Tasmania, will find familiar. However, it was, not surprisingly, the view of the Lords of the Board of Trade that Governor Murray’s brief was to ensure that the English traders secured control of and marginalised the French in the fur trade. This was at the root of Murray’s private instructions which spoke of ‘order’ as against his public Commission referring to ‘welfare’. The struggle between the two groups – reformers and ‘Tories’ – foregrounded the replacement of ‘welfare’ with ‘order’ in the BNA Act 1867.122 This was because, ‘Order’, Saul reminds us, was ‘generally used in the British empire to describe the use of authority or power’ whereas ‘Welfare … implied the existence of a public weal’.123 Further historiographical evidence The foregoing historiographical analysis is further strengthened by a seemingly innocuous detail in the private instructions issued to Murray – paragraph 80 of the ‘Instructions’. Some reflexion over the paragraph makes Saul’s account of the ‘welfare’ versus ‘order’ distinction not simply plausible but compelling. It serves to set out some parts of the paragraph in this regard: … in the case of your Death or Absence … the Eldest Councillor … r­ esiding within our said Province under your Government, shall take upon him the

210  Colonial and Post-Colonial Constitutionalism in the Commonwealth Administration of Government, and execute Our said Commission and Instructions, and the several Powers and Authorities therein directed: It is nevertheless Our Express Will and Pleasure, that in such case the said President shall forbear to pass any Act or Acts, but what are immediately necessary for the Peace and Welfare of the said Province, without our particular Order for that Purpose.124 Here, the ‘Instructions’ contemplated the possibility that James Murray or any of his Lieutenant Governors may die or be absent from the Province, and in such circumstances that there is also no Commander in Chief thereby creating a vacuum in the administration at the very top. To forestall a vacuum in governance that may arise in such circumstances, this penultimate paragraph in the Instructions makes provisions for the appointment of a ‘President’ to take on its administration in the interim. Such official shall only have very restricted administrative powers; to pass only (presumably subordinate) legislation necessary for the ‘Peace and Welfare of the said Province’. Note the return to the language of ‘welfare’ as against ‘order’ in the circumstance of an interregnum. It suggests that the former covers a more restricted purview than the plenary nature associated with the latter. To leave it beyond doubt, the Instructions goes on to state some of the restrictions on the power of the President; namely that he shall not remove or suspend any members of the Council, judges, Justices of the Peace, civil or military officers of the Government without the advice and consent of at least seven members of the Council. Even at that, such removal can only be effected with ‘good and sufficient Reasons’ which are to be communicated at the earliest opportunity to the Commissioners of Trade and Plantations in London. There was an explicit intention to keep the administration of the Province in the shape and form known to and trusted by the authorities in London. Ostensibly, an appeal to ‘peace, order and good government’ would afford wider latitude of power to the interim administrator (president) who may well have been of doubtful loyalty to the Crown. This was apparently a real possibility in the context of Canada at the time, given its divided society. As such, London did not take any chances. At least two important points further emerge from close attention to paragraph 80 of the ‘Instructions’. First, it is significant that in contemplating an interim administrator who will be appointed from the ranks of the Canadians themselves evidently with more local interests at stake, the ‘Instructions’ make it clear that the powers of the administrator were to be preservative of the status quo until a trusted official could be appointed. In other words, the authorities in London were wary of the situation of emergency providing a wide berth of legislative powers to a local whose loyalty was not likely to dovetail into the interests of the Lords of Trade. The emphasis is in fact not so much on the agreeable notion of ‘welfare’ of the province, but importantly, an admonition to refrain from making any new laws at all. Second, is how this provision helps to lay to rest the speculation, rightly rejected by Saul, that ‘order’ was substituted for ‘welfare’ by inadvertence of some junior

Law, politics and peace, order and good government 211 officer in the colonial office in the process of drafting the BNA Act 1867.125 The set of officers who paid attention to the turn of language in this way should be trusted with having followed through a change of language in the BNA Act 1867 as a considered policy directive and nothing else. Paragraph 80 lends strong credence to the view that too much was at stake for those involved in these processes to have made such a vital change with nothing but calculated deliberation. Indeed, history records of the draft submitted by the founding fathers of what became the BNA Act 1867 went through several drafts in the colonial offices in London leading to several important changes, as Saywell notes of the drafting process leading on to the ‘final draft’ presented to the House of Lords.126 This clearly suggests careful deliberation on the contents and attention to detail by colonial officials involved. In similar vein, Ian Killey has observed that former governors in the North American colonies were granted power by virtue of their commissions ‘to make constitute and ordain Laws, Statutes and Ordinances for the Pubic Peace, Welfare and good Government of Our said Province’.127 The purpose of the commissions was, apart from granting powers to the colonial governors, to control the use of those powers and ‘to instruct the governors as to the limits of their powers’ and the ‘purposes for which the powers were to be used … their original use was to define and limit the scope of the powers granted’.128 A 1752 circular sent by the Board of Trade to colonial governors is particularly germane to the contention that on the historical record, the objective meaning is the appropriate one for the POGG clause. The context of the discourse in this study justifies this otherwise lengthy quote from the circular: Whereas many of the laws heretofore passed in our colonies and plantations in America respectively have from time to time been either entirely or in part repealed and others of them are expired, altered and amended or explained, by means whereof persons not well acquainted with the said laws may be led into mistakes and great prejudice and inconvenience may arise to our service; And whereas nothing can more effectually tend to promote order and good government, secure the properties and possessions of our subjects, and prevent litigious controversies than a clear and well digested body of laws, It is therefore our will and pleasure and you are therefore required and directed jointly with our council and the assembly … under your government forthwith to consider and revise all and every the (sic) laws, statutes and ordinances which are in force within our said province … and in lieu thereof to frame and pass thereof a complete body of new laws.129 The general tenor of the above quotation, and, in particular, the emphasised clause, makes clear that the objective approach to ‘peace, order and good government’ has historical pedigree contrary to what has come to be considered the orthodox interpretation. The foregoing instances generally cast more than a passing doubt on the originalist argument regarding the interpretation of POGG but this further example with direct reference to government and legislation in colonies of the Empire concretely displaces its purported foundations on the

212  Colonial and Post-Colonial Constitutionalism in the Commonwealth historical record. It is more cogent because it is usual to find that academic writers and judges commonly cite correspondence emanating from colonial officers in London on issues of colonial law as authority for particular interpretations of colonial legislation and constitutional documents. Moreover, Saul’s position on the meaning of ‘welfare’ finds support in the very first resolution made by the House of Assembly of Lower Canada on 6 December 1828. At a time of political turmoil between the colonial administration and the French majority led by Louis-Joseph Papineau, Sir James Kempt, Governorin-Chief of British North America,130 made a conciliatory speech towards the aggrieved French Canadians.131 His appointment was made following the recall, in 1828, of Sir George Ramsay Dalhousie who, as Governor-in-Chief, was well known for his authoritarian views and style of administration.132 In response, to the conciliatory message of Sir James Kemp, the House of Assembly made the ‘Neilson’s Resolutions’. The very first resolution stated that it: derived the greatest satisfaction from the gracious expression of his Majesty’s beneficent views towards this province and from the earnest desire of the administrator of the Government, to promote the peace, welfare and good government of the province, as evinced in his excellency’s message.133 Clearly, the concept of welfare referred to by the House of Assembly was of the ‘bonheur’ framing elucidated by Saul, and a far cry from the position that ‘peace, welfare and good government’ and ‘peace, order and good government’ mean the same thing. Thus, there is an argument that there is either a mistaken but now well-established legal notion that the two mean the same thing when they do not, or, if they do, that meaning, from an historical point of view ought to be the objective one. Additional support for an objective reading of POGG based on the historical record is provided by the proclamation made by Queen Victoria as Empress of India at the inception of direct British rule in India in 1858. This takeover followed the Sepoy mutiny resulting from misrule of the East Indian Company and widespread public discontent with it in India. In recognition of the tense situation at the time, Queen Victoria stated in a public proclamation that the British government: shall respect the rights, dignity, and honour of native princes as our own; and we desire that they, as well as our own, subjects should enjoy that prosperity and that social advancement which can only be secured by internal peace and good government.134 The reference here to ‘peace and good government’ in the context of governance strongly suggests an objective or literal sense of welfare rather than an unlimited plenary power to make laws to administer the subcontinent. The above quote separated the power to make legislation from the deployment of legislation to achieving the welfare of the society. It is indeed more accurate to state that it

Law, politics and peace, order and good government 213 subordinates the power of law-making and its legitimacy to the well-being of the society. Consequently, the objective approach should, on proper account of the historical record, be the appropriate leaning on the interpretation of the POGG clause. This was the preference of the minority of the House of Lords and the courts in Bancoult No 1, R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (‘Bancoult No 2 (HC)’),135 R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 2) (‘Bancoult No2 (CA)’)136 and R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (‘Bancoult No 2 (HL)’)137 and it is only the adoption of that view that could be the basis for the continued relevance or application of the clause in constitutional arrangements in this contemporary period. It is instructive that while the subjective meaning has prevailed, it has always been challenged directly and indirectly by a number of judges, the most remarkable at this time being the dissenting opinions of Lords Mance and Bingham in Bancoult No 2 (HL) as discussed in Chapter 5, as well as the lower courts in the case. Indeed, notwithstanding the vice-like grip of the subjective approach to interpretation of the POGG clause, the objective approach – even if it has yet to gain the dominant position – has never been far off in considerations of it by the courts across the Commonwealth. That much has been seen in the discussions of the interpretations of the POGG clause across the jurisdictions considered in this study. However, it serves to elucidate this point further given that it is virtually standard to find that most judges, and a good number of academic writers in turn, take refuge in stating the contrary when toeing the line of the subjective interpretation of POGG. Case law and the objective interpretation of POGG As the decisions in the Bancoult litigation illustrate, despite the dominant subjective interpretation of POGG, there has always been tension across various jurisdictions in the Commonwealth between the objective and subjective interpretations of the power. There is useful evidence in the case law supporting the argument for an objective approach to the POGG clause along the lines of its antecedents as ‘peace, welfare and good government’ as discussed above. Some of these have been discussed in the preceding chapters. The noticeable change in the interpretive approach of the POGG by the Supreme Court of Nigeria in the country’s post-authoritarian period as discussed in Chapter 4 is a good case in point. It serves to consider one other instance of the objective approach. An objective approach was adopted in the Supreme Court of Sierra Leone (then a court of first instance) in John Joseph Akar v Attorney-General.138 The plaintiff was born in Sierra Leone of a Sierra Leonean mother, and a Lebanese father. Neither the plaintiff, who was then 56 years old, nor his father, had in fact ever been to or lived in Lebanon. The plaintiff had automatically become a citizen of Sierra Leone at its independence on 27 April 1961 by operation of the Constitution as both he and one of his parents had been born in Sierra Leone. However, in 1962 the Parliament amended the citizenship provisions of the Constitution with retrospective effect to the date of independence. The amendment, made through

214  Colonial and Post-Colonial Constitutionalism in the Commonwealth the Constitution Amendment Act No 12 of 1962 (‘Act No 12’) and confirmed by Act No 39 of 1962, altered his citizenship status. Act No 12 prescribed that only those who were of ‘Negro, African descent’, which meant those whose father, and father’s father, are or were negroes of African origin, were automatically citizens. Anyone who had a parent of Negro African descent but who would not qualify because of the new legislation could apply for citizenship by registration. However, they could only contest public office after 25 years of continuous residence in Sierra Leone or if they had served an equivalent period in the armed or public services of the country. The plaintiff challenged the constitutionality of the two Acts that were passed to effect these changes. He alleged that they were discriminatory and that one was not passed in accordance with the required ­constitutional procedure. Chief Justice Tejan-Sie held that the two Acts were made ultra vires the Constitution. The Chief Justice based his decision on two distinct reasons. First, he considered that the legislation was discriminatory. Though made under the guise of citizenship legislation, they were actually discriminatory legislation directed at eligibility to stand for national and local elections and contrary to the Constitution. Second, and more relevant to the discussion here, is the POGG power in the Constitution of Sierra Leone. In this regard, section 42 of the Constitution provided that ‘Subject to the provisions of this Constitution, Parliament may make laws for the peace, order and good Government of Sierra Leone’. The Chief Justice held that although Parliament had power to legislate for the peace, order and good government of the country, such amendments had to be improvements to the Constitution. The courts had the power to determine whether or not such amendments or alterations were improvements. Since the two Acts served to deprive citizens of vested rights of citizenship, the Chief Justice held that they were not improvements. Parliament, the Chief Justice held, could not, under the POGG powers, make law that was repugnant or unjust or against common sense. The alterations to the Constitution were unjustified and patently against the spirit of section 42, the POGG power, and section 43, which provided for the power to alter the Constitution. The objective approach is made even clearer by the view expressed by the Chief Justice that ‘If the numbers involved had been sufficiently numerous, well organized and vociferous, who knows what breaches of the peace might have occurred on the passing of such legislation?’139 The decision of the Supreme Court was overturned on appeal to the Court of Appeal for Sierra Leone.140 In its unanimous judgment, the Court of Appeal made a passing reference to section 42 (regarding the POGG power) but made no comment on it. It gave a number of reasons for its decision, including the fact that Parliament was well within its powers to pass the legislation which the Court of Appeal maintained was citizenship rather than electoral legislation. It also held that the courts could not question Parliament’s competence to pass retrospective legislation. The closest the Court of Appeal came to addressing the POGG power was to state that nothing in the Constitution prevented the Parliament from ­passing retroactive legislation regardless of its morality.141 In the further appeal to the JCPC, John Joseph Akar v Attorney-General of Sierra

Law, politics and peace, order and good government 215 Leone,142 the judgment of the Court of Appeal was in turn reversed by the JCPC, which approved the Supreme Court’s position. The majority, per Lord Morris (Lord Hudson, Lord Wilberforce and Sir Gordon Wilmer with him, Lord Guest dissenting), stated that it was not concerned with the wisdom, desirability or fairness of Act No 12 but only its validity. The JCPC agreed with the Supreme Court that Act No 12 was discriminatory on the grounds of race and ‘offends against the letter and flouts the spirit of the Constitution’.143 Lord Morris stated that ‘the plenitude of power to make laws’ for Sierra Leone, though conferred on Parliament, had to be in accordance with the Constitution. In other words, the extent of the Parliament’s powers was limited by the Constitution.144 While not directly commenting on the purport of POGG, the JCPC’s decision in this case arguably supports the case for an objective interpretation of the POGG power. Reference of the JCPC to the need for legislation to conform to the ‘spirit of the constitution’ as a measure of legality is tantamount to recognising that Parliament is not omnipotent. The JCPC however noted obiter that it found ‘unacceptable’ the ‘viewpoint (favoured by the learned Chief Justice of Sierra Leone) that it was not open to the legislature to make any alteration (whatever its form) to the Constitution which did not amount to an improvement of the existing law’.145 In his dissenting opinion, Lord Guest, while agreeing that Act No 12 was discriminatory, towed the line of the Court of Appeal to hold that it was within the powers of the Parliament to make such laws on citizenship issues.146 At this point, it is relevant to observe that the dominant interpretation and application of the POGG power derives some of its force from its attachment to the workings of political arrangements in parts of the Commonwealth which, if left unaddressed, provides presumably strong objections to any argument for change in any form. Principally, any suggestion that the POGG clause should be expunged from Commonwealth constitutions is likely to meet with objection from constitutional lawyers. This objection, expressly stated or implied, is a direct product of the long-standing association of POGG with the conferral of legislative powers in constitutional instruments.

Constitutional de rigueur or redundant links? Peace, order and good government, parliamentary sovereignty and federalism This association casts POGG in the mould of a constitutional de rigueur provision in a number of constitutions in the Commonwealth, which suggests the need for consideration in the context of a discussion for a change in the interpretive approach to POGG. It is common place in many Commonwealth constitutions that the power of the legislature to make laws is expressed as ‘the power to make laws for the peace, order and good government’ for the whole of the jurisdiction or a part of its territory. To illustrate, in addition to the example of the independence constitution of Sierra Leone discussed above, two pre-1993 constitutions of South Africa, 1909 and 1983, provided respectively that ‘Parliament shall have full power to make laws for the peace, order, and good government of the Union’147 and ‘The legislative

216  Colonial and Post-Colonial Constitutionalism in the Commonwealth power of the Republic is vested in the State President and the Parliament of the Republic, which, as the sovereign legislative authority in and over the Republic, shall have full power to make laws for the peace, order and good government of the Republic.’148 The drafting style of the ‘general power of law-making’ conferred on the Parliament of Papua New Guinea stands out for how it typifies this constitutional de rigueur provision. Section 109(1) of the 1975 Constitution of Papua New Guinea, which makes provision for the general power of Parliament, provides that ‘Subject to this Constitution, the Parliament may make laws, having effect within and outside the country, for the peace, order and good government of Papua New Guinea and the welfare of the People.’ Interestingly section 109(3) further provides that ‘No law made by the Parliament is open to challenge in any court on the ground that it is not for the peace, order or good government of Papua New Guinea or the welfare of the People’, demonstrating an uncommon explicit codification of the prevailing subjective interpretation of POGG and affirming that ‘order’ and ‘welfare’ have the same meaning in the context. The linking of the legislative power of Parliament with POGG has brought about an association of the clause with the political concept of parliamentary supremacy or sovereignty.149 Notwithstanding the influential status of Westminster parliamentarianism,150 there are differing political and judicial attitudes toward judicial review within the Commonwealth. Moreover, with the benefit of a crossjurisdictional evaluation of the POGG power, it is appropriate to re-examine the relevance of the link, especially as it has become clear that POGG can be (and has been) used for validating virtually any form of legislation. A related issue which also commends further reflection is that the constitutional provisions on the legislative powers of central/federal and sub-national competence in a number of Commonwealth constitutions commonly express such powers as being also for POGG. This is the case, with some variations, in Australia, Canada and Nigeria, for instance. Thus, in Canada, the Dominion’s legislative powers as provided in section 91 of the BNA Act 1867 specifies that ‘It shall be lawful for the Queen, by and with the advice and consent of the Senate and House of Commons, to make laws for the Peace, Order and Good Government of Canada, in relation to all matters not coming within the classes of subjects by this Act assigned exclusively to the Legislatures of the Provinces.’ This is interesting particularly when it is considered that some federations in the Commonwealth started out as unitary states with parliamentary systems just like those in Nigeria and South Africa. It is thus relevant to consider whether POGG is a required feature of the constitutional arrangements of federations. Like the connection between parliamentary supremacy and POGG, I will briefly seek to demonstrate that beyond the historical experience of British colonialism, there is no justification for either connection. It is useful then to examine each issue in turn. Parliamentary sovereignty and peace, order and good government The concept of the supremacy of Parliament, Dicey stated, is at the heart of British constitutionalism: ‘the sovereignty of Parliament is (from a legal point of view)

Law, politics and peace, order and good government 217 the dominant characteristic of our political institutions’.151 Further, according to Dicey, the principle means that Parliament has, ‘under the English constitution, the right to make or unmake any law whatever; and, further, that no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament’.152 Similarly, Lord Hoffmann stated obiter in Bancoult No 2 (HL) that the principle of parliamentary sovereignty ‘has been developed by the courts over the past 350 years’ and its foundation is ‘the unique authority Parliament derives from its representative character’.153 This principle ‘was at once historical reality, constitutional theory and a fundamental principle of the common law’ in the United Kingdom with courts customarily deferring to Parliament to hold that its legislation was to be accorded priority over international law, subordinate legislation and rules of the common law.154 However, socio-political development and considerable constitutional changes have conditioned the potency of this Diceyan orthodoxy in British constitutionalism.155 The notion of legislative supremacy has being challenged by many in the legal academy and by judges in curia and ex curia.156 European Union law, human rights as well as the common law have all been identified as constituting constraints on the notion of parliamentary supremacy in the United Kingdom.157 In recent times, judicial dicta in R (Jackson) v Attorney-General (‘Jackson’)158 reflect this line of thinking. Lord Hope of Craighead conceded that the British Constitution is ‘dominated by the sovereignty of Parliament’,159 but went on to state that there is now considerable support for the view that ‘parliamentary sovereignty is no longer, if it ever was, absolute’.160 The prevailing judicial approach to the construction of British notions of parliamentary sovereignty, as Lord Hope stated, is that it is not uncontrolled, or admits of no qualification but rather: Step by step, gradually but surely, the English principle of the absolute legislative sovereignty of Parliament which Dicey derived from Coke and Blackstone is being qualified … The rule of law enforced by the courts is the ultimate controlling factor on which our constitution is based.161 It is significant that Lord Hope’s views on the progressively qualified nature of parliamentary sovereignty in the United Kingdom found support with other members of the House of Lords. Lord Steyn stated that while parliamentary sovereignty remains the ‘general principle’ of the British constitution, Dicey’s pure and absolute doctrine of parliamentary supremacy ‘can now be seen to be out of place in the modern United Kingdom’.162 As a result, ‘it is not unthinkable that circumstances could arise where the courts may have to qualify a principle established on a different hypothesis of constitutionalism’.163 Baroness Hale similarly stated that the rule of law is a critical consideration that courts will take into account in evaluating the principle of parliamentary sovereignty. Although the courts would ordinarily decline to hold that Acts of Parliament interfere with human rights, they would be suspicious of and disposed to rejecting any attempt to oust judicial scrutiny from governmental action that affects the rights of individuals as this will amount to a subversion of the rule of law.164 Baroness Hale, like most of their

218  Colonial and Post-Colonial Constitutionalism in the Commonwealth Lordships, equally pointed out that Parliament, even if temporarily, has ‘limited its own powers by the European Communities Act 1972 and, in a different way, by the Human Rights Act 1998’.165 Baroness Hale however emphasised that while other limitations ‘may emerge in due course’ (presumably mainly due to Parliament’s own actions), it is political and diplomatic, rather than constitutional factors that ultimately constrain Parliament’s powers.166 Lord Hope’s and Baroness Hale’s reference to the rule of law in this way is significant if we recall that it is one of the two key constraints in Dicey’s articulation of the workings of a political system with parliamentary supremacy; constitutional conventions being the other.167 However, the critical challenge to the effectiveness of the rule of law as a check on the possibility of parliamentary despotism, as Mark Bevir points out, is that Dicey’s conception of the rule of law in this regard is a minimalist one. Dicey’s account of the rule of law is difficult to reconcile with his conception of parliamentary sovereignty.168 Even with this qualified opinion, it is generally agreed that the power of the courts and their attempts to hold the political branches of government to account have increased incrementally in recent times. The United Kingdom has witnessed an ‘increasing role of the courts in the processes of collective decision-making’.169 One of the inevitable consequences of the process of judicialisation of politics in the context of the United Kingdom is the tempering of parliamentary sovereignty through greater reliance on the courts for resolving the challenges, domestic and regional, of ‘new governance’.170 Indeed, some would argue that there is nothing new in such tempering; it is rather the reality of the application of the Diceyan principle of parliamentary sovereignty because ‘Dicey’s conception of parliamentary supremacy has always been tempered by the demands of contemporary political practice and climate’.171 The increased scope of judicial review and determination of issues otherwise mainly in the political domain, variously referred to as part of the process of ‘juridification’ but mostly as the ‘judicialisation of politics’172 or ‘juristocracy’, is not unique to the United Kingdom but is a global phenomenon. A number of factors have been identified for this global turn, including the ascendance of human rights discourse, loss of legitimacy of the political branches, the challenges of transitional contexts following authoritarian rule or conflict and poor institutional memory of the political branches, dwindling public trust in political institutions and the increased debates about the nature of the rule of law. By all accounts, the global turn towards juristocracy from the last decades of the twentieth century (and which has persisted) has been controversial.173 Institutional awareness of the controversy generated by the process of judicialisation has informed judicial protestations to the contrary – to stave off criticisms of judicial interference in the political sphere. Thus, even in Jackson, Lord Carswell stated that the courts do not intend to expand the judicial role at ‘the expense of any other organ of the State or to seek to frustrate the properly expressed wish of Parliament as contained in legislation’.174 However, it is interesting that his Lordship went on to assert that the thinking ‘in certain quarters’ of such intention ‘is misconceived and appears to be the product of lack of

Law, politics and peace, order and good government 219 understanding of the judicial function and the sources of law which the courts are bound to apply’.175 Westminster Parliament – peace, order and good government not ‘good’ enough? The POGG clause as a legislative provision in Commonwealth constitutionalism has been closely linked with legislative supremacy. This linking, it can be argued, is, more than any other factor, at the heart of the survival of POGG as a constitutional mechanism. Beyond historical circumstances of British colonial heritage of a parliamentary politics, it is not clear why this has to be the case given that Parliament does not require the POGG clause to establish its power or foster its sovereignty. Indeed, it is one of the ironies of Commonwealth constitutionalism that the fountain head of the parliamentary system, the Westminster Parliament, does not have any formal requirement for the clause, nor is it even notionally embodied in any of its written constitutional sources. Rather, as Lord Pearce stated on behalf of the JCPC in Bribery Commissioner v Ranasinghe,176 ‘in the constitution of the United Kingdom there is no governing instrument which prescribes the law-making powers and the forms which are essential to those powers’.177 True, the British constitution has remained unwritten, but it does have some recognised sources in addition to its many unwritten but established conventions.178 POGG does not come under either category. Therefore, despite the roots of POGG in the British Isles, the constitutional documents of Great Britain did not contain the POGG power at any point in its legal history. It has not been suggested by constitutional scholars that the Westminster Parliament, despite the prominence of the political principle of parliamentary sovereignty in the jurisdiction, has suffered a diminution of its legislative powers by the lack of reference to POGG. However, Westminster did legislate for England and Wales as well as Northern Ireland, with the legislation including POGG. The inclusion in legislation for England and Wales was set out in a manner that clearly suggests an objective purport, while the inclusion in Northern Ireland was to confer subjective, plenary powers when one considers that part of the purpose for passing the Northern Ireland Act 1972 was to subvert the decision in Reg (Hume) v Londonderry Justices (‘Hume’),179 which sought to limit POGG.180 Notice the dichotomy in the use of POGG by the same Parliament – one for the metropolitan part and another for a province with a history of colonial rule. This is at least suggestive of the possibility of severing the connection between constitutional grant of legislative powers and the necessity of reference to POGG. It can be argued that imperialism, intertwined with a conception of absolute parliamentary sovereignty, has much more to do with the link between POGG and parliamentary constitutional powers of legislation than much else. An evaluation of the South African experience of the application of the POGG power is useful in this regard. Prior to the political transformation that took place in 1993, South Africa practised a system of absolute parliamentary sovereignty.181

220  Colonial and Post-Colonial Constitutionalism in the Commonwealth Absolute parliamentary sovereignty – the South African experience The ‘rise and dominance of parliamentary sovereignty’, Heinz Klug has observed, ‘shaped South Africa’s modern constitutional history’.182 However, the adoption of the country’s 1993 Constitution marked the ‘fall’ of that dominance183 with the introduction of the much feared ‘devil’ of judicial review.184 It is relevant to recall that the post-apartheid political order has done away not only with a unitary system of government adopted at the time of union of the four colonies, as pointed out in Chapter 1, but also the principle of parliamentary supremacy or sovereignty when it adopted federalism.185 However, the concept of absolute parliamentary sovereignty and its implications for judicial review remain germane to any discussion of the POGG power during the apartheid era which is in issue here. South African society experienced colonial dispossession and racial segregation for nearly 350 years. This commenced with the Dutch occupation of the Cape in 1652 and eventually superseded by British colonial rule. The period was ‘marked by intermittent wars of resistance to land dispossession between colonialist and indigenous kingdoms’.186 The legal process actively engaged a formalist legal tradition that was not concerned with justice or equality.187 The political preference of South Africa for a system of parliamentary sovereignty has been described as an ‘English inheritance’.188 An early attempt to recognise judicial review of legislation (as against judicial review of administrative action, which was recognised) by Chief Justice Kotze of the High Court of South Africa in Cassim and Solomon v The State189 was strongly decried by President Paul Kruger, President of the South African Republic, who described it as the ‘devil’s way’.190 Chief Justice Kotze’s principled position on this point led to his removal by President Kruger.191 The sovereignty of Parliament was further strengthened and emphasised by the provisions of section 59(1) of the Republican Constitution of South Africa 1961, which provided that ‘Parliament shall be the sovereign legislative authority in and over the Republic of South Africa and shall have power to make laws for the peace, order and good government of the Republic.’ However, according to Harold Rudolph, the ‘expression “for the peace, order and good government of the Republic” is meaningless, since it placed no constraints whatsoever on the sovereignty of South Africa’s Parliament’.192 This is because section 59(2) is deemed to have curtailed the legal capacity of the judicial branch to pronounce on or void legislation made by Parliament with the unremarkable exception of sections 108 and 118 of the Union Constitution – the entrenched provisions on language equality. Section 59(2) provided that: No court of law shall be competent to enquire into or pronounce upon the validity of any Act passed by Parliament, other than an Act which repeals or amends or purports to repeal or amend the provisions of section one hundred and eight or one hundred and eighteen. An extreme attempt to assert parliamentary sovereignty was the enactment of Act 35 of 1952 which established a High Court of Parliament consisting of all

Law, politics and peace, order and good government 221 senators and members of the House of Assembly. This conferred power on the legislature to review decisions of the Appellate Division (which was then the highest in the judicial hierarchy) of the Supreme Court of South Africa and thereby constituted the Parliament into the highest court in the country. The procedure for passing the legislation was challenged in Minister of the Interior and another v Harris and others (‘Harris’)193 for being contrary to section 152 regarding amendments – an entrenched provision of the Union Constitution. It was argued for the appellant that the Union Constitution imposed no limitations upon Parliament in relation to the creation of a court. The only limitations imposed by the Constitution were contained in the three entrenched clauses, none of which had any connection with the creation or constitution of courts of law. It was further argued that a court such as the High Court of Parliament can be created in South Africa to decide all issues of law and there was no breach of procedural requirements in that regard. Any such requirement was at best by implication and there was no room for importing such implications into the Union Constitution.194 In a unanimous decision, the Appellate Division of the Supreme Court, the highest court in South Africa at the time, confirmed the decision of the Provincial Division (Cape)195 and dismissed the appeal. The court held that the High Court of Parliament is not a court of law as envisaged by section 152 of the Union Constitution nor is it in substance a court of law at all. Rather, it is simply Parliament functioning under another name.196 The Court stated that it is clear from sections 35, 137 and 152 of the Constitution that certain rights are conferred on individuals and that these rights cannot be abolished or restricted unless the procedure prescribed by section 152 is followed. The sections confer the right on an individual to call on the judicial power to ‘help him resist any legislative or executive action which offends against him’.197 The sections contain constitutional guarantees creating rights in individuals. Where questions arise on the sections in litigation, it is the duty of the courts to ensure that the protection of the guarantee is made effective. Any modification to these provisions must be made in conformity with prescribed procedure, which was missing in this case. The decision in Harris suggests a judiciary that was keen to protect and preserve its judicial power of review of legislative and executive action both in terms of procedural and substantive requirements of law and the constitution. However, the courts generally demurred to absolute parliamentary supremacy. The ‘crude logic’ of the courts in this regard, as Klug has pointed out,198 is well depicted in an early Appellate Division decision, Sachs v Minister of Justice; Diamond v Minister of Justice (‘Sachs’).199 In Sachs, Acting Chief Justice Stratford stated that: arguments are sometimes advanced which do seem to me to ignore the plain principle that Parliament may make any encroachment it chooses upon the life, liberty or property of any individual subject to its sway, and that it is the function of the courts of law to enforce its will.200 As Justice Dikgang Moseneke, Deputy Chief Justice of the Constitutional Court of South Africa, recently observed, not only was there an absence of constitutional

222  Colonial and Post-Colonial Constitutionalism in the Commonwealth human rights during the apartheid era, but judicial review of legislation was also ‘virtually absent’.201 The ‘dominant judicial culture required courts to defer to lawmakers’202 and despite the fact that courts could review subordinate legislation and administrative decisions, ‘judges rarely set them aside’.203 POGG was included in constitutional and statutory instruments which formed part of the legal regime for colonial dispossession and expulsion that ensued in the apartheid period. Yet, application of POGG and its role in constitutional terms as a legal mechanism in South Africa remains virtually unanalysed in its constitutional literature.204 The significance of the power appears to have been considerably diminished if not undermined by the political context of absolute parliamentary sovereignty which clothed apartheid with the questionable robes of a minimalist or formalist rule of law. Many laws were deliberately crafted to entrench the apartheid policy of the white settler government from the beginning of the nineteenth century through to 1993.205 One of these was the Native Administration Act 1927 (as amended). Among others, this Act conferred powers on the Governor-General to rule the declared ‘black areas’ by executive fiat (‘Proclamations’). Section 27(1) of the Act provides that the Governor-General may make regulations with reference to a number of matters including: (c) the prohibition, control or regulation of gatherings or assemblies of natives; [...] (e) generally, for such other purposes as he may consider necessary for the protection, control, improvement and welfare of the natives, and in furtherance of peace, order and good government.206 The Governor-General frequently invoked the POGG clause with other provisions of the Native Administration Act, strengthened by similar provisions contained in the pre-1993 constitutions of South Africa, to banish and deport black South Africans from their residences to ‘native’ areas – those areas exclusively reserved for blacks. There were numerous unsuccessful challenges to the exercise of this power. R v McChlery (‘McChlery’)207 is the most often-cited authority on the POGG clause in the South Africa jurisdiction and the locus classicus on the clause in the jurisdiction.208 In McChlery, the Appellate Division of the South Africa Supreme Court upheld legislation challenged for imposing a discriminatory tax against coloured peoples in South Rhodesia. The appellant, an employer, was convicted for failing to make tax returns in respect of coloured workers in the class obligated to pay the tax. He appealed the conviction on the ground that the body charged with collecting the tax was established for private rather than public purposes. Consequently, the tax legislation, it was contended, was beyond the powers to make laws for the POGG of the country granted to the legislature of Southern Rhodesia by section 35 of the Southern Rhodesia Order in Council 1898 (‘SROC 1898’), the territory’s then constitution. In a unanimous decision, the court held that the phrase ‘peace, order and good government’ confers complete legislative power on the legislature. Rose Innes JA,

Law, politics and peace, order and good government 223 as well as the two other judges (Chief Justice Lord De Villiers and Solomon JA), juxtaposed the provisions of section 35 of the SROC 1898 with that of section 59 of the Union Act 1909 and concluded that they were identical in their meaning and effect. Rose Innes JA stated that ‘the words of the section are very wide, and confer the amplest powers of legislation, for they cover the entire conceivable area of political action’.209 The discretion to determine that any measure(s) conduces to POGG lies with the lawgiver and not the courts.210 According to Rose Innes JA, once the: restrictive limits of the empowering documents are observed, the discretion to judge what measures are conducive to peace, order and good government lies with the lawgiver, and not with the Courts. Having regard to the fact that a subordinate Legislature is (within the limits of its subjects and area) in a similar position to the British Parliament, it is impossible that the Colonial Courts should have an overriding authority to say when measures are, and when they are not, in the general interest of peace, order and good government.211 Solomon JA was even more definitive on this point, emphasising that no matter how strongly any judge feels that a particular law is antagonistic to good government, the judge has no authority on that ground to declare the law invalid.212 Not surprisingly, the court relied on Burah and Riel. The position of the South African courts on the exercise of the POGG clause was further enunciated en banc by the Appellate Division in S v Tuhadeleni and others (‘Tuhadeleni’).213 Chief Justice Steyn (with Justices of Appeal Van Blerk, Ogilvie Thompson, Rumpff, Botha, Wessels, Potgieter, Jansen, Jennett and Acting Justices of Appeal Van Winsen, and Trollip) conceded that while the POGG clause implicated the material and social well-being of the inhabitants of a given territory, it was the business of the Parliament, not the courts, to determine that a piece of legislation ‘transgresses the limits of such undelimited powers’.214 According to Chief Justice Steyn, ‘Whether or not any legislative measure is calculated to promote or to harm these interests of the inhabitants, would be a matter of policy in the discretion of Parliament, into which our Courts would decline to enquire.’215 In other words, the clause allows for the exercise of powers outside the purview of judicial review even when it is clear that the purposes to which it was deployed were not in the general well-being of the people.216 Similar powers came up for determination by the Appelate Division in Winter and others v Administrator-in-Executive Committee and another (‘Winter’).217 The appellants, three churchmen and a church worker, lawful residents of the South West Africa Territory (now Namibia), applied for an interdict pending a main application for an order setting aside deportation orders218 issued in terms of the powers conferred on the Administrator of the South West Africa Territory by section 1(1) (a) of Proclamation 50 of 1920.219 Section 1(1)(a) provided that it shall be lawful for the Administrator, if he was satisfied that any person within the Territory was dangerous to the peace, order and good government of the Territory if he remained there, to direct the Secretary for the Territory to issue an order to such person to leave the Territory within such time as stipulated in the order. The deportation

224  Colonial and Post-Colonial Constitutionalism in the Commonwealth orders were reportedly issued for ‘State reasons’ which could not be disclosed. The appellants alleged gross arbitrariness, fraud and mala fides in the issuing of the orders, which had been done without providing them with an opportunity to be heard. The South-West Africa Division of the Supreme Court refused the claims of the appellants. It noted, without deciding, that the maxim audi alteram partem was applicable and that there was a failure of natural justice. However, it held that the provisions of section 1(3) of the Proclamation ousted the court’s jurisdiction to review deportation orders on that ground and dismissed the application. The appellants then left the Territory in compliance with the deportation orders and brought this appeal to the Appellate Division. The Appellate Division confirmed the decision of the lower court. Chief Justice Oglivie Thompson delivered the uanimous decision of the court dismissing the appeal (Justices of Appeal Botha, Rumpff, Holmes and Hansen concurring). The Appellate Divison held that once the Administrator-in-Executive Committee honestly directed its minds to whether a person was ‘dangerous’ to the peace, order and good government of the territory concerned, it is not part of the court’s function to determine whether a correct decision was reached.220 The court (like many others in this line of cases) was ‘loudly’ silent on how the ‘honesty’ of the Administratorin-Executive was to be acsertained. Rather, it held that the intention of section 1(3) of the Proclamation to exclude its jurisdiction was abundantly plain and it had the force of a statutory enactment. The situation, as envisaged by Parliament, required ‘unfettered action’ in ‘the public interest’ as soon as the relevant authority was satisfied that such conditions existed.221 In sanctioning the segregationist intent of the legislation, the court stated that the nature of the POGG power conferred by section 1(1)(a) of the Proclamation afforded a wide discretion of a drastic kind to the Administrator, which negatively affected the liberty of the individual but its exercise was not subject to the maxim audi alteram partem.222 In Mabe v Minister for Native Affairs (‘Mabe’),223 the Governor-General ordered the deportation of the appellant from Rustenburg district, Transvaal, where he was the acting chief of the Bathlako tribe. A letter written on behalf of the GovernorGeneral in response to his request for the basis of the order stated in part that the appellant was in dereliction of his duty. The letter stated that the information furnished to the Governor-General indicated that Mabe’s presence in Rustenburg was inimical to the POGG of the natives residing in the district. It was further averred that it was necessary in the interest of ‘good government’ to terminate his appointment and exile him because his influence dictated that his continued presence in Rustenburg would have ‘hampered steps towards restoring peace, order and good government in the tribe and in neighbouring tribes’.224 The trial court dismissed the appellant’s objection to the order and this was upheld by unanimous decision of the Provincial Court of the Transvaal Provincial Division of the Supreme Court. Ramsbottom J (Rumpff and Theron JJ concurring) held that the facts stated in the letter explaining the reason for the GovernorGeneral’s decision disclosed that ‘it was in all the circumstances necessary in the interests of good government to terminate the appellant’s appointment as acting chief’.225 Significantly, the court held that in any event, the decision remained

Law, politics and peace, order and good government 225 unimpeachable even where the information upon which the Governor-General purported to have made the order was later found to be incorrect,226 thus affirming the plenary nature of the power exercised by the Governor-General. This approach was followed in Joyi v Minister of Bantu Administration and Development (‘Joyi’).227 The applicant in Joyi challenged one such removal order made against him by the Governor-General. The Governor-General had made the order under section 5(1)(b) of the Native Administration Act 38 of 1927 on the grounds that he was satisfied that the applicant’s continued presence ‘in, or at any place within easy reach of the district of Umtata is inimical to the peace, order and good Government of the Natives’ residing there. It was ‘expedient in the general public interest’ that the applicant ‘withdrew’ to a ‘Native Trust Farm’ in Magapere, another part of the Cape Province.228 The court, per van Wyk J (De Villiers J concurring), held that the removal order was valid as there was no disclosure of mala fides on the part of respondent. This was despite the fact that the GovernorGeneral had failed to fully respond to the request of the applicant to provide the information that formed the basis of the order. In sum, it is clear that the POGG power had a comparatively limited substantive application in South Africa. Notwithstanding the limited constitutional narrative of its application in the jurisdiction, the context of that application links up with a key feature of the POGG clause discussed in various parts of this book – its malleability. It is now apt to turn to the other attachment to the POGG which is arguably not a required one – its inclusion in delineating jurisdictional claims in federations in the Commonwealth. Federalism and peace, order and good government Evaluations of the POGG power in the context of a number of Commonwealth jurisdictions may lead to the inference that it is sine qua non for the delimitation of jurisdictional powers of the national/federal as against state or regional/­ provincial authorities in federations. In some federations, constitutional practice seems to assume that a major function of the POGG clause in the post-colonial period is to delimit legislative competence. This is in the context of competing or sometimes conflicting jurisdictional claims between the central (federal) and constituent (provincial, states, regional) governments. Such constitutional delimitation, though with differing political formulations, is evident, for instance, in Canada, Australia and Nigeria, as discussed in preceding chapters.229 Advocates of centrist federalism will be quick to cite the legitimacy of that political preference in the location of the residual powers on the federation through the POGG power, for instance.230 An example of the POGG power conferred on an executive authority can be found in the Indian Constitution 1950 (as amended). The POGG power mainly takes the form of constitutional provisions conferring wide-ranging executive power on the President and governors of federating units in India. Thus, the President of India has powers to make legislation for, or exclude the application of, existing or new legislation to certain Union Territories in the country. Section

226  Colonial and Post-Colonial Constitutionalism in the Commonwealth 244(1) provides that ‘The President may make regulations for the peace, progress and good government of the Union territory of …’, and lists the territories. Judicial dicta from federal jurisdictions similarly tend to suggest that the POGG power is sine qua non to federal political arrangements. In Re Authority of Parliament in Relation to the Upper House,231 the Canadian Supreme Court observed with reference to the significance of the POGG power that the creation of a federal system in Canada involved the necessity of effecting division of legislative powers. This division, the Supreme Court of Canada noted, is made by the provisions of ­sections 91 and 92 of the BNA Act 1867. The Court observed further that: The latter section empowered each provincial legislature generally to make laws, effective within the province, in respect of matters of local or private nature. Fifteen specific classes of subjects were enumerated. Section 91 provided generally for the making of laws for the peace order and good government of Canada. Twenty-nine classes of subject matters were enumerated. Legislation dealing with those matters might affect local or private matters within a province.232 It is not to be assumed, however, that this use of POGG is inevitable for achieving clarity in intergovernmental mediation of power conflicts in a federation. First, there are federations in the Commonwealth which have dropped the formulation of the POGG clause (and its variations) from their constitutions. South Africa comes up for mention in this regard. It retained the POGG power, as discussed above, when it operated a unitary system, only to jettison it when it became a federation. Second, it is also a fact that there are a number of unitary states that have or had the clause in their constitutional documents as is the case in New Zealand and Ghana respectively. While New Zealand has retained POGG, Ghana has discarded it. There is the more engaging point that attempts at utilising the POGG clause for moderating constituent power contestations have been remarkably fraught with sometimes confounding results, as was the experience of countries like Canada, Australia and Nigeria.

Conclusion There is wisdom in the dicta of Lord Birkenhead in Thomas William McCawley v The King233 ‘that the difference of view which has been the subject of careful analysis by writers of Constitutional Law may be traced mainly to the spirit and genius of the nation in which a particular constitution has its birth’.234 Put differently, a constitution is not made in vacuo; consequently, the context affects its interpretation and, ostensibly, its application. So it is with the POGG clause in Commonwealth constitutions. The political nature of the JCPC impacted on how it perceived and performed its role as a court of final jurisdiction on constitutional issues in the Commonwealth. That inevitably played a critical role in its interpretation of an important and ubiquitous power like the POGG clause. After all, as Lord Haldane candidly stated, ‘the real work of the Committee is that of assisting in

Law, politics and peace, order and good government 227 holding the Empire together’.235 Even if remotely, such an unusual position will affect the workings of a court. And so it did with the experience of the adjudication of constitutional questions arising from the Commonwealth territories and colonies around the Empire. The analyses in virtually all the jurisdictions in the foregoing chapters indicate that the judicial consideration of POGG in Canada is a cardinal reference point for other Commonwealth jurisdictions. First, the centrality of POGG to the process of judicial review in Canada is second to none in Commonwealth constitutionalism. A good number of the cases which went on appeal to the JCPC centred on the POGG power as contained in section 91 of the BNA Act 1867 and its application considering the provisions of section 92. So also did a good deal of the evaluation of the work of the JCPC in relation to Canada. Secondly, discussing the Canadian experience is of relevance not only to Canada but of overarching significance for the Commonwealth as a whole. This is principally because, as stated earlier,236 not only were the earliest judicial interpretation of POGG first made in and on the jurisdiction by the domestic courts and the JCPC respectively, those early cases have become the locus classicus on the interpretation of the POGG clause. Those early cases, like Riel, Hodge and Russell, arguably with much less than the awareness or critical evaluation of the background of POGG, remain the most influential across the Commonwealth on its purport. Saul’s work regarding the POGG power and its place in Canadian sociopolitical ordering provides a very interesting, even if unconventional, account of the power in Canada and, by extension, Commonwealth constitutionalism. I have similarly advanced historiographical evidence to challenge the originalist pretensions of POGG as a term of art meaning conferral of unlimited or plenary power. Nonetheless, it is trite that the orthodoxy of the interpretation of POGG as the expression of legislative power with such wide application is well established. Despite its inherent paradox, only few judges and constitutional scholars are ready to challenge that orthodoxy. Saul’s challenge of it, although in relation to Canada, is relevant to the general application of the POGG power in the Commonwealth. An important angle, which is only partially developed in Saul’s book, and certainly not from a legal point of view, is the root of the POGG clause in British colonialism explored in this book. Even then, as Saul recognised, there would be little sense in the concept of POGG outside ‘elite attachment’ to it.237 That has not been unique to Canada, but rather, as the discussion so far has shown, an enduring legacy of empire. An important part of the argument advanced in this chapter is that judicial interpretation of POGG across the Commonwealth demonstrates a lack of agreement as to its precise meaning, nature, content and limits. This is the case both vertically – within the hierarchy of courts in each national jurisdiction – and ­horizontally – across jurisdictions. Despite bold judicial pronouncements in cases like Union Steamship Co of Australia Pty Ltd v King (‘Union Steamship’),238 famously echoed by the majority in Bancoult No 2 (HL) as to the purport of POGG, credible doubts remain as to the meaning of the clause. Should it, or should it not, be defined along the purport of its component words? For many judges, it has

228  Colonial and Post-Colonial Constitutionalism in the Commonwealth become a term of art with no links to the component words; it has acquired a technical meaning. This circumstance, I have argued, is a product of precedentfollowing than the argument from originalism on which it has been premised. It remains ironic that the words, ‘peace’, ‘order’ and ‘good government’ on an objective reading are, in themselves, not only desirable but would qualify from a Hobbessian and Lockean point of view as the raison d’être of the modern state. That much was affirmed by Quenet JP in Madzimbamuto v Lardner-Burke and others239 when the learned judge stated that every man in a civilised society has the right to peace, order and good government and a correlative duty rests upon the governing power to fulfil the duty of ensuring it; otherwise, liberty and order will ‘come to an end’.240 Indeed, as the Divisional Court held in Bancoult No 1, each of the words ‘peace’, ‘order’ and ‘good government’ in relation to any territory necessarily connotes that ‘citizens of the territory are there to take the benefits’.241 On this understanding, adherence to the objective meaning of the clause concedes the nature of the POGG clause as one that confers powers that may be wide but not altogether unrestrained. This sense of POGG, I have argued earlier, can be traced back to the very beginnings of the clause itself in the Justices of the Peace Act 1489. It is interesting that despite imperial origins, the POGG clause has been vigorously deployed to the service of moderating the sharp edge of jurisdictional disputes in federations, itself a prominent aspect of political ordering in many Commonwealth states. But arguably, that is as far as the positive side goes. While the analyses of Australian and Canadian constitutional jurisprudence on the POGG clause (at least in its current form) provide some support for the federalist notion, scrutiny of constitutional and political practice, even within the Commonwealth, discloses the absence of generalised practice. In cases involving challenges to the apartheid policies of white minority rule in South Africa, parliamentary supremacy was invoked to uphold discriminatory legislation made on the constitutional footing of Parliament’s powers to make legislation for the peace, order and good government of South Africa. It was included, perhaps, for emphasis of legislative supremacy in legislation for vesting, even arrogating, wide and largely unaccounted powers on a few individuals with usually deleterious effects on whole populations or significant segments of societies in the Commonwealth. It is apt to recall the fact of the removal of the clause from the 1993 and (current) 1996 Constitution of South Africa (as amended). While, as stated, earlier the principle of absolute parliamentary supremacy was the main anchor for the making of apartheid laws in South Africa, it is logical to assume that the minor role played by the inclusion of the POGG clause in such legislation may have contributed to its removal from the post-apartheid constitutions of the country. In place of the elite attachment to what is obviously the subjective interpretation of the POGG power lamented by Saul, the ‘reasonable approach to the construction of language’242 envisaged by Gibbs J in Bancoult No 1 of POGG (conceived in the foregoing discussion as the objective interpretation) ought to prevail in the Commonwealth. However, caught as it presently is in the mechanics of common law tradition, it would take something of a judicial and academic revolution for

Law, politics and peace, order and good government 229 POGG to be interpreted objectively. Nonetheless, if not previously, at least postBancoult No 2 (HL), it is clear that the continued retention of the POGG clause has become an anachronism that has been allowed too wide latitude. The clause has in fact remained essentially a symbol of anything but what its words proclaim; rather, the clause is emblematic of uninhibited power which warrants its removal from all Commonwealth constitutions. A few have expunged it in the course of their constitutional turns – whether from colonial rule, apartheid or authoritarianism. There is no evidence that either Ghana or South Africa have been the worse for the removal of the clause. The time is ripe for other Commonwealth jurisdictions, including at least three discussed in this book – Australia, Canada and Nigeria – to reconsider its implications with a view to adopting an objective meaning for it or discarding it altogether.

Notes 1 [2001] QB 1067. 2 See Larry Alexander (ed.), Constitutionalism: Philosophical Foundations (Cambridge University Press, Cambridge, 2001). 3 See, e.g. Anne Richardson Oakes and Haydn Davies, ‘Process, Outcomes and the Invention of Tradition: The Growing Importance of the Appearance of Judicial Neutrality’ (2011) 51(2) Santa Clara Law Review 573. 4 Tom R Tyler, ‘Psychological Perspectives on Legitimacy and Legitimation’ (2006) 57 Annual Review of Psychology 375, 382–384. 5 Tyler (n 4), 376. 6 Oakes and Davies (n 3), 573. 7 Tyler (n 4), 376. 8 See, e.g. Abimbola A Olowofoyeku, ‘Bias and the Informed Observer: A Call for a Return to Gough’ (2009) 68(2) Cambridge Law Journal 388. 9 Oakes and Davies (n 3), 573. 10 Charlotte Smith, ‘An Introduction to the Judicial Committee of the Privy Council’; available at http://www.plymouth.ac.uk/pages/view.asp?page=33858 (accessed 8 August 2013). 11 The Right Honourable George Rankin, ‘The Judicial Committee of the Privy Council’ (1939) 7(2) Cambridge Law Journal 2, 3–4. 12 Nandini Chatterjee, ‘Law and the British Empire’, Privy Council Papers Online; available at http://www.privycouncilpapers.org/contexts/law–and–british–empire/ (accessed 8 August 2013). 13 As a result it maintains jurisdiction over final appeals from the Crown dependencies of Jersey, Guernsey and the Isle of Man as well as the following countries: Antigua and Barbuda, Bahamas, Cook Islands and Niue (Associated States of New Zealand), Grenada, Jamaica, St Christopher and Nevis, St Lucia, St Vincent and the Grenadines and Tuvalu, as well as the Republic of Trinidad and Tobago, the Commonwealth of Dominica, Kiribati and Mauritius. It also has jurisdiction over appeals from the UK’s Overseas Territories of Anguilla, Bermuda, British Virgin Islands, Cayman Islands, Falkland Islands, Gibraltar, Montserrat, Pitcairn Islands, St Helena and dependencies, Turks and Caicos Islands. 14 Judicial Committee of the Privy Council, ‘Jurisdiction’; available at http://www.jcpc. gov.uk/about/jurisdiction.html (accessed 8 August 2013). 15 Unreported judgment No CO/3775/98. 16 R v Bancoult (n 15), 3–4. 17 See Ibralebbe and another v R [1963] AC 900, 921–922. The question which the assertion

230  Colonial and Post-Colonial Constitutionalism in the Commonwealth begs remains: whose court is the JCPC? That of an empire which has legally ceased to exist though partly succeeded by a state, or territories whose people are so distant and removed from the JCPC that they, in reality, know next to nothing about it? In any case, the statement is usually taken to mean that the JCPC is part of the court structure of the country from which the appeal it is hearing emanates. Even if one accepts this legal fiction, it must of course be with the important caveat that the JCPC has limited rather than no jurisdiction at all in the United Kingdom because it continues to retain jurisdiction as the final appellate court on some Church of England and ecclesiastical-related issues. Indeed, until the creation of the Supreme Court in 2009, it also had final appellate jurisdiction on issues of devolution ­originating from Scotland, Northern Ireland and Wales. 18 R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (‘Bancoult No 2 (HL)’) [2008] UKHL 61, [2009] 1 AC 453 at 464. 19 PA Howell, The Judicial Committee of the Privy Council 1833–1876: Its Origins (Cambridge University Press, Cambridge, 1979), 3. 20 R v Bancoult (n 15), 4. 21 Thomas Mohr, ‘A British Empire Court – An Appraisal of the History of the Judicial Committee of the Privy Council’, in Anthony McElliott et al. (eds), Power in History – Historical Studies XXVII (Irish Academic Press, Dublin, 2011), 12, 125–126; and Kenneth Keith, ‘The Interplay with the Judicial Committee of the Privy Council’, in Louis Bloom-Cooper, Brice Dickson and David Dewry (eds), The Judicial House of Lords 1876– 2009 (Oxford University Press, Oxford, 2009), 315, 315–316. 22 Mohr (n 21), 127. 23 William Eaton, ‘Canadian Judicial Review and the Federal Distribution of Power’ (1958) 7(1) American Journal of Comparative Law 47. 24 The dominion, as here with the small letter ‘d’, is used to refer to the whole of the territories of the British Empire as against the ‘Dominions’, which refer to only the white settlement colonies of the British Empire which included Newfoundland, the Dominion of Canada, the Commonwealth of Australia, the Union of South Africa and the Dominion of New Zealand. 25 The actual extent of the jurisdiction has dwindled in the last 70 years as a large part of the British Empire became independent and gave way to the Commonwealth; see, e.g. Keith (n 21), 316–319 on some of the JCPC’s significant domestic and empirewide losses of jurisdiction. Nonetheless, the common law principle of precedent makes the JCPC a continuing relevant judicial authority now and presumably in the future across the Commonwealth and the world. 26 Herbert Bentwich, The Times, 14 August 1933, as quoted in Mohr (n 21). 27 Lord Haldane, ‘The Work for the Empire of the Judicial Committee of the Privy Council’ (1923) 1 Cambridge Law Journal 143, 153. 28 Lord Haldane (n 27), 153. 29 Alan C Cairns, ‘The Judicial Committee and Its Critics’ (1971) 4(3) Canadian Journal of Political Science 301, 319. 30 Cairns (n 29), 318. 31 Frederick Vaughan, ‘Critics of the Judicial Committee of the Privy Council: The New Orthodoxy and an Alternative Explanation’ (1986) 17(3) Canadian Journal of Political Science 495, 501. 32 Cairns (n 29), 319–320. Cairns however justifies the perceived bias of the JCPC toward the provinces on ‘sociological’ evidence. See Cairns (n 29), 322–324. 33 But nonetheless relevant to other parts of the British Empire at the time and still the case with parts of the Commonwealth where its jurisdiction has been maintained. 34 Cairns (n 29), 319–320. 35 Even Cairns acknowledged this point. 36 Alice Donald, Jane Gordon and Phillip Leach, The UK and the European Court of Human

Law, politics and peace, order and good government 231 Rights (Equality and Human Rights Commission Research Report 83, 2012), 91; Phillip Leach ‘Note to British MPs: Think before Criticising the European Court’; available at: http://www.opendemocracy.net/od–russia/philip–leach/(n–to–british–mps– think–before–criticising–european–court (accessed 8 August 2013); Michael PuntoDushinksy, Bringing Rights Back Home – Making Human Rights Compatible with Parliamentary Democracy in the UK (Policy Exchange, London, 2011); Michael O’Boyle, ‘The Future of the European Court of Human Rights’ (2011) 12(10) German Law Journal 1862. 37 Lord Hoffmann, ‘The Universality of Human Rights’, Judicial Studies Board Annual Lecture, 19 March 2009, 1, 11–12; available at http://www.judiciary.gov.uk/media/ speeches/2009/speech–lord–hoffman–19032009 (accessed 8 August 2013); but cf. Lady Justice Arden, ‘Peaceful or Problematic? The Relationship between National Supreme Courts and National Courts in Europe’ (2010) 29(1) Yearbook of European Law 3 for a positive disposition to the opportunities for interaction between domestic and national courts as provided by the European Court of Justice and the European Court of Human Rights. 38 Lord Hoffmann (n 37), 12. 39 Lord Hoffmann (n 37), 12. 40 Lord Hoffmann (n 37), 14. 41 Cairns (n 29), 328–332, 344–345. 42 Cairns (n 29), 331. 43 Cairns (n 29), 331. 44 [1926] 1 AC 482. 45 Criminal Code, RSC, 1906, c.146, s 1025. 46 Jacqueline D Krikorian, ‘British Imperial Politics and Judicial Independence: The Judicial Committee’s Decision in the Canadian Case Nadan v. The King’ (2000) 33(2) Canadian Journal of Political Science 291, 294, 295. 47 Krikorian (n 46), 294. 48 Krikorian (n 46), 297–299, 308–312. 49 Krikorian (n 46), 297–299, 308–312. 50 Haldane (n 27), 150. 51 Viscount Haldane, ‘Lord Watson’ (1899) 11 Juridical Review 278, 279. 52 Viscount Haldane (n 51), 279. 53 Haldane (n 27), 150. 54 Haldane (n 27), 150 (emphasis added). 55 Haldane (n 27), 150 (emphasis added). 56 This would be inevitable in the event that its members were drawn not just from people with legal training, but also the House of Commons and those with experience and of service in the colonies: see Haldane (n 27), 148. 57 E René Richard, ‘Peace, Order and Good Government’ (1940) 18 Canadian Bar Review 243, 258–260. 58 Haldane (n 27), 150–154; however, compare Lord Haldane’s later disclaimer in Hull v McKenna [1926] IR 402 at 403 (PC) of the Law Lords not being ministers or leaning towards politics: ‘We are not Ministers in any sense; we are a committee of Privy Councillors who are acting in the capacity of Judges … We have nothing to do with politics or policies, or party considerations; we are really Judges.’ This, however, appears to be an afterthought, but it may also be indicative of awareness of the changing conception of the role of judges. 59 Vaughan (n 31), 516. 60 In transcripts of proceedings as well as non-judicial statements, see Vaughan (n 31), 514. 61 Vaughan (n 31), 518–519. 62 Arthur Berriedale Keith, Responsible Government in the Dominions (2nd edn, Vol 1, Oxford University Press, London, 1912), 302.

232  Colonial and Post-Colonial Constitutionalism in the Commonwealth 63 For insightful and accessible discussions of the case for and against originalism in a handy volume, see the contributions in Grant Huscroft and Bradley W Miller (eds), The Challenge of Originalism (Cambridge University Press, New York, 2011); see also Robert H Bork, The Tempting of America – The Political Seduction of the Law (Free Press Touchstone, New York, 1990), 143–160; Antonin Scalia, ‘Originalism: The Lesser Evil’ (1989) 57 University of Cincinnati Law Review 849; David Lyons, ‘Constitutional Interpretation and Original Meaning’ (1986) 4(1) Social Philosophy and Policy 75. 64 Jeffrey Goldsworthy, ‘The Case for Originalism’, in Huscroft and Miller (n 63), 42, 43. 65 George Lestas, ‘Strasbourg’s Interpretive Ethic: Lessons for the International Lawyer’ (2010) 21(3) European Journal of International Law 509, 513–514. 66 Lestas (n 65), 514. 67 Lestas (n 65), 514 (emphasis in original). 68 Lestas (n 65), 514. 69 Goldsworthy (n 64), 51. 70 Goldsworthy (n 64), 42. 71 See Ch 3 . 72 Goldsworthy (n 64), 50 and 67. For some of the earlier articulations of the same argument see, e.g. Jeffrey Goldsworthy, ‘Questioning the Migration of Constitutional Ideas: Rights, Constitutionalism and the Limits of Convergence’, in Sujit Choudhry (ed.), The Migration of Constitutional Ideas (Cambridge University Press, Cambridge, 2006) 115, 122; and Jeffrey Goldsworthy, ‘Interpreting the Constitution in its Second Century’ (2000) 24 Melbourne University Law Review 677, 681–687. 73 Goldsworthy (n 64), 43. 74 Goldsworthy (n 64), 67. 75 Goldsworthy (n 64), 43. 76 Goldsworthy (n 64), 43. 77 Goldsworthy (n 64), 43. 78 Goldsworthy (n 64), 49 and 67. 79 David Dyzenhaus, ‘The Incoherence of Constitutional Positivism’, in Grant Huscroft (ed.), Expounding the Constitution: Essays in Constitutional Theory (Cambridge University Press, Cambridge, 2009), 138–160, 154–155. 80 Dyzenhaus (n 79), 155. 81 Dyzenhaus (n 79), 155. 82 [1878] UKPC 1, (1878) LR 3 AC 889 (PC). 83 (1883) LR 9 AC 117 (PC). 84 (1885) LR 3 AC 889 (PC). 85 He also cited Powell v Apollo Candle Co Ltd (1885) 10 AC 282. 86 (1882) 7 AC 829 (PC). 87 John Ralston Saul, A Fair Country: Telling Truths about Canada (Penguin Group, Ontario, 2008). 88 Saul (n 87), 111–165. 89 Saul (n 87), 111. 90 Saul (n 87), 111. 91 Saul (n 87), 114. 92 Saul (n 87), 114. 93 Saul (n 87), 114. 94 Saul (n 87), 158–165. 95 Saul (n 87), 303–323. 96 Saul (n 87), 142–146. 97 Saul (n 87), 115. 98 Saul (n 87), 115. 99 Saul (n 87), 115 (emphasis in original).

Law, politics and peace, order and good government 233 100 Saul (n 87), 115. 101 Saul (n 87), 115. 102 Saul (n 87), 115. 103 See the discussion on the Justices Act 1489 in Ch 1. 104 Saul (n 87), 112–125. 105 Saul (n 87), 115–156. 106 Justices Act 1489. 107 Justices Act 1489. 108 Chapter 1. 109 Frederick Madden and David Fieldhouse (eds), The Empire of the ‘Bretaignes’, 1175– 1688: The Foundations of a Colonial System of Government (Greenwood Press, Connecticut, 1985), 1. 110 Goldsworthy (n 64), 43. 111 Saul (n 87), 117. 112 See Ch 2. 113 Saul (n 87), 153 (emphasis in original). See also John T Saywell, Judicial Power and the Shaping of Canadian Federalism (University of Toronto Press, Toronto, 2003), 7. 114 Saul (n 87), 153 (emphasis in original). 115 Saul (n 87), 154. 116 Saul (n 87), 134. 117 Saul (n 87), 153–155. 118 ‘Governor Murray to the Lords of Trade’, in WPM Kennedy, Documents of the Canadian Constitution 1759–1915 (Oxford University Press, Toronto, 1918), 40. 119 Saul (n 87), 155. 120 Murray’s successor, who more or less followed Murray’s approach: see Paul David Nelson, General Sir Guy Carleton, Lord Dorchester: Soldier-Statesman of Early British Canada (Associated University Press, New Jersey, 2000), 31–65. 121 Saul (n 87), 155. Murray was to be recalled in 1766 on trumped-up charges by aggrieved English traders and eventually left the position in 1768: Nelson (n 120), 31. 122 Saul (n 87), 155. 123 Ibid (emphasis in original). 124 ‘Instructions to Governor Murray, 7 December 1763’, in Kennedy (n 118), 27–37, 37 (emphasis added). 125 Saul (n 87), 154. 126 Saywell (n 113), 10–11. 127 As many of their commissions stated, as discussed in Ch 1. 128 Ian D Killey, ‘“Peace, Order and Good Government”: A Limitation on Legislative Competence’ (1989) 17 Melbourne University Law Review 24, 49. 129 Frederick Madden and David Fieldhouse (eds), The Classical Period of the First British Empire 1689–1783: The Foundations of a Colonial System of Government (Greenwood Press, Connecticut, 1985), 247–248 (emphasis added). 130 As the Governor-General was then known. 131 An important part of the tension that had developed in Lower Canada arose from the attempts by the House of Assembly to control the revenues of the province, which was criticised by opponents as being against the law and practice in the colonies. The House of Assembly in turn accused the Governor of arbitrariness and unauthorised financial appropriations. See, e.g. ‘Huskisson’s Speech on Canadian Affairs’, extracted in Kennedy (n 118), 343–344; ‘Report of the Select Committee on the State of the Civil Government of Canada’, extracted in Kennedy (n 118), 345–351. 132 Dictionary of Canadian Biography Online, ‘Kempt, Sir James’; available at http:// www.biographi.ca/009004–119.01–e.php?&id_nbr=4004 (accessed 8 August 2013). 133 See Journal of the Assembly 6th December, 1828, extracted in Kennedy (n 118), 351–353, 351.

234  Colonial and Post-Colonial Constitutionalism in the Commonwealth 134 ‘Proclamation by the Queen to the Princes, Chiefs and the People of India, 1 November 1858’, in Arthur Berriedale Keith (ed.), Speeches and Documents on Indian Policy, 1750–1921 (Vol I, Oxford University Press, Oxford, 1922), 382, 383–384 (emphasis added). 135 [2006] EWHC 1038 (Admin). 136 [2007] EWCA Civ 498; Secretary of State for the Foreign and Commonwealth Affairs v R (Bancoult) [2008] QB 365. 137 Bancoult No 2 (HL) (n 18). 138 CC 58/67, judgment delivered on 26 October 1967. For a discussion and part report of the case, see JPWB McAuslan, ‘John Joseph Akar v. Attorney-General’ (1968) 12(2) Journal of African Law 89. 139 McAuslan (n 138), 99. 140 Attorney-General v John Joseph Akar (Civ App 1/68), judgment delivered on 5 April 1968. See also JPWB McAuslan, ‘John Joseph Akar v. Attorney General’ (1969) 13(2) Journal of African Law 103. 141 For a full report of the judgment see McAuslan (n 138), 100–109. 142 Privy Council Appeal No 20 of 1968, [1969] UKPC 13 at 1. 143 Akar (n 142), 6. 144 Akar (n 142), 9. 145 Akar (n 142), 8. 146 Akar (n 142), 9–11. 147 Union of South Africa Act 1909, s 59. 148 (Tricameral) Constitution 1983, s 30. 149 Throughout this chapter, as with other parts of the book, I use the terms ‘parliamentary supremacy’ and ‘parliamentary sovereignty’ interchangeably. 150 Mark Bevir, ‘The Westminster Model, Governance and Judicial Reform’ (2008) 61(4) Parliamentary Affairs 559, 563. 151 Albert Venn Dicey, The Law of the Constitution (1885), 39. 152 Dicey (n 151), 39–40. 153 Bancoult No 2 (HL) (n 18), [35]. 154 Colin Turpin and Adam Tomkins, British Government and the Constitution – Text and Materials (Cambridge University Press, Cambridge, 2011), 59, who also make the important point that the reference by Dicey has always meant only the Westminster Parliament and not the devolved Parliaments of Scotland, Wales and Northern Ireland, the Acts of which are not supreme. 155 For a discussion of some of the changes, see Robert Hazell, ‘The Continuing Dynamism of Constitutional Reform’ (2007) 60(1) Parliamentary Affairs 3, arguing that ‘waves’ of constitutional reform are the greatest legacy of the Blair administration. 156 See, e.g. Sir John Laws, ‘Law and Democracy’ [1995] PL 72, 75–76, 81–90; Sir John Laws, ‘The Constitution: Morals and Rights’ [1996] PL 622, 628, 635; John McGarry, ‘The Principle of Parliamentary Sovereignty’ (2012) 32(4) Legal Studies 577, 581–582, 598; Pavlos Eleftheriadis, ‘Parliamentary Sovereignty and the Constitution’ (2009) 22 Canadian Journal of Law & Jurisprudence 267; Adam Wagner, ‘Does Parliamentary Sovereignty Still Reign Supreme?’, Guardian (27 January 2011). 157 See, e.g. ‘Written Evidence from Professor Adam Tomkins, John Millar Professor of Public Law, University of Glasgow’; available at http://www.publications.parliament.uk/pa/cm201011/cmselect/cmeuleg/633ii/633we02.htm (accessed 8 August 2013). 158 [2006] 1 AC 262. 159 Jackson (n 158), [104]. 160 Jackson (n 158), [104]. 161 Jackson (n 158), [104]. For a formidable defence of parliamentary sovereignty,

Law, politics and peace, order and good government 235 see Jeffrey Goldsworthy, Parliamentary Sovereignty: Contemporary Debates (Cambridge University Press, Cambridge, 2010), 267–318. 162 Jackson (n 158), [132] (emphasis added). In contrast to and, indeed, directly disapproving the decision in Jackson, Lord Neuberger, in a lecture which he delivered just before taking up the Presidency of the Supreme Court, vigorously defends the doctrine of absolute parliamentary sovereignty affirming that there are only political rather than legal limits to it. See Lord Neuberger, ‘Who are the Master’s Now’ (Second Lord Alexander of Weedon Lecture, 12 April 2011); available at http://www. judiciary.gov.uk/Resources/JCO/Documents/Speeches/mr–speech–weedon–lec ture–110406.pdf (accessed 6 August 2013). While acknowledging the ongoing reforms of the British Constitution, Lord Neuberger declared that ‘the idea that Parliament is no longer legally sovereign and that the judiciary, whether at home or in Strasbourg, are the masters now is quite simply wrong’ (p 8). 163 Jackson (n 158), [102]. 164 Jackson (n 158), [159]. 165 Jackson (n 158), [159]. 166 Jackson (n 158), [159]. 167 Bevir (n 150), 562–563. 168 Bevir (n 150), 562. 169 Bevir (n 150), 559; but cf. Roger Masterman, ‘Labour’s “Juridification” of the Constitution’ (2009) 62(3) Parliamentary Affairs 476. See also Turpin and Tomkins (n 154), 43; Robert Stevens, ‘Government and the Judiciary’ and Jeffrey Jowell ‘Administrative Law’, both in Vernon Bogdanor (ed.), The British Constitution in the Twentieth Century (Oxford University Press, Oxford, 2003), Chs 9 and 10 respectively; and Neuberger (n 162), 14. 170 Bevir (n 150), 560–570. For a succinct discussion of the interaction of the rule of law and parliamentary sovereignty and the role of the judiciary, see Chris McCorkindale and Nick McKerrell, ‘Assessing the Relationship between Legislative and Judicial Supremacy in the UK: Parliament and the Rule of Law after Jackson’ (2012) 101(4) The Round Table 341. 171 Masterman (n 169), 480; and Eleftheriadis (n 156), 270–271. 172 On this issue of terminology, see a response to Bevir (n 150) in Masterman (n 169), 477. 173 For a sample of the literature on the nature and spread of judicialisation of politics, see, e.g. Alex Stone Sweet, Governing with Judges: Constitutional Politics in Europe (Oxford University Press, Oxford, 2000); Rachel Sieder, Line Schjolden and Alan Angell (eds), The Judicialization of Politics in Latin America (Palgrave Macmillan, New York, 2005); John Ferejohn, ‘Judicializing Politics, Politicizing Law’ (2002) 65 Law and Contemporary Problems 4; Ran Hirschl, ‘The Judicialization of Politics and the Rise of Political Courts’ (2008) 11 Annual Review of Political Science 93; Shannon Roesler, ‘Permutations of Judicial Power: The New Constitutionalism and the Expansion of Judicial Authority’ (2007) 32(2) Law & Social Inquiry 545; Ran Hirschl, Towards Juristocracy (Harvard University Press, Harvard, 2007); Hakeem O Yusuf, ‘The Judiciary and Constitutionalism in Transitions: A Critique’ (2007) 7(3) Global Jurist 1; Hakeem O Yusuf, ‘Robes on Tight Ropes: The Judicialisation of Politics in Nigeria’ (2008) 8(2) Global Jurist 1; Hakeem O Yusuf, ‘Democratic Transition, Judicial Accountability and Judicialisation of Politics in Africa: The Nigerian Experience’ (2008) 50(5) International Journal of Law and Management 236. 174 Jackson (n 158), [168]. 175 Jackson (n 158), [168]. 176 [1965] AC 172. 177 Ranasinghe (n 176), 195. 178 On the sources of the British Constitution, see Turpin and Tomkins (n 154), 160–209.

236  Colonial and Post-Colonial Constitutionalism in the Commonwealth 179 [1972] NI 91. 180 See Ch 5. 181 Harold Rudolph, ‘Nominated Members of Parliament and the Demise of the Entrenched Sections’ (1981) 98 South African Law Journal 346. 182 Heinz Klug, The Constitution of South Africa: A Contextual Analysis (Hart Publishing, Oxford, 2010), 7. 183 Heinz Klug, ‘Historical Background’, in Arthur Chaskalson et al. (eds), Constitutional Law of South Africa (Juta and Co, Cape Town, 1996), 2, 2.1. 184 Heinz Klug, ‘Introducing the Devil: An Institutional Analysis of the Power of Constitutional Review’ (1997) 13(2) South African Journal on Human Rights 185. 185 There is some debate on whether South Africa is now a federation given that neither constitutional nor political discourse officially used the term ‘federalism’ during or after the period of transition. See also Ronald L Watt, ‘Is the New Constitution Federal or Unitary?’, in Bertus de Villiers, Birth of a Constitution (Juta Legal and Academic Publishers, Cape Town, 1994), 75, 86; Richard Simons, ‘Considerations in the Design of Federations: The South African Constitution in Comparative Perspective’ (1998) 13(1) South African Public Law 42, 42–71. 186 Dikgang Moseneke, ‘A Journey from the Heart of Apartheid Darkness Towards a Just Society: Salient Features of the Budding Constitutionalism and Jurisprudence of South Africa’ (2012) 1, 5; available at http://scholarship.law.georgetown.edu/ hartlecture/1 (accessed 9 August 2013). 187 For a general discussion of the apartheid legal order and the misuse of law, see Dyzenhaus (n 79); David Dyzenhaus, Judging the Judges, Judging Ourselves – Truth, Reconciliation and the Apartheid Legal Order (Hart Publishing, Oxford, 2003); and David Dyzenhaus, Hard Cases in Wicked Legal Systems (Oxford University Press, Oxford, 2010). 188 Klug (n 183), 2.1. 189 (1892) 9 Cape Law Journal 58. 190 Klug (n 182), 11. 191 Klug (n 182), 11. 192 Rudolph (n 181), 346–347. 193 1952 (4) SA 769 (A). 194 Harris (n 193), 772–773. 195 Harris v Minister of Interior (1952) 2 SA 428 (the franchise case). 196 Harris (n 193), 784. 197 Harris (n 193), 779. 198 Klug (n 182), 13. 199 (1934) AD 11. 200 Sachs (n 199), 37. 201 Moseneke (n 186), 5. 202 Moseneke (n 186), 5. 203 Moseneke (n 186), 5. For a salient and extensive discussion of this point, see Dyzenhaus, Hard Cases (n 187), 34–73. 204 Thus, there is virtually no reference to it in the works of three of the most prominent South Africa constitutional law scholars, John Duggard, David Dyzenhaus and Heinz Klug. 205 See Dyzenhaus, Hard Cases (n 187), 34–119. A valuable and extensive archival documentation of the legislation has been carried out by Padraig O’Malley and is available at http://www.nelsonmandela.org/omalley/index.php/site/ q/03lv01538/04lv01646/05lv01768.htm (accessed 8 August 2013). 206 Emphasis added. 207 (1912) AD 199. See also Rhodesia Railways and others v Commissioner of Taxes (1925) AD 438. 208 See, e.g. Rhodesia Railways (n 207), 468; Monnakale and others v Government of Bophuthatswana

Law, politics and peace, order and good government 237 and others (1991) (1) SA 589, 617; R v Heyns and others (1959) (3) SA 634 (A), 635; Rex v Maloi (1950) (1) SA 749 (O), 753–754; Harris (n 193), 770. 209 McChlery (n 207), 220. 210 McChlery (n 207), 220. 211 McChlery (n 207), 220. 212 McChlery (n 207), 225–226. 213 1969 (1) SA 153; and Harris (n 193). 214 Tuhadeleni (n 213), 173. 215 Tuhadeleni (n 213), 173. 216 See also Mulaudzi and others v Chairman, Implementation Committee and others 1995 (1) SA 513 (V). 217 (1973) (1) SA 873 (A). 218 By Proclamation 51 of 1937 and Ordinance 2 of 1972, appeals at the time laid from the High Court of South West Africa to the Appellate Division of the Supreme Court of South Africa by virtue of the Appellate Division Act No 12 of 1920. See Sam K Amoo, An Introduction to Namibian Law: Materials and Cases (Macmillan Education, Windhoek, 2008). 219 (SWA), as amended. 220 Winter (n 217), 888–889. 221 Winter (n 217), 890. 222 Winter (n 217), 889. 223 1958 (2) SA 506 (T). 224 Mabe (n 223), 508–509. 225 Mabe (n 223), 509. 226 Mabe (n 223), 509–510. 227 (1961) (1) SA 210 (C). 228 Joyi (n 227), 211. 229 See the discussion on federalism in Chs 2–4. 230 Rainer Knoppf and Anthony Sayers, ‘Canada’, in John Kincaid and G Allan Tarr, Constitutional Origins, Structure and Change in Federal Countries (McGill University Press, Montreal and Kingston, 2005), 104, 109. 231 (1980) 1 SCR 54. 232 Re Authority of Parliament in Relation to the Upper House (n 231), 68. 233 (1920) 28 CLR 106. 234 McCawley (n 233), 114–115. 235 Haldane (n 27), 154. 236 Chapter 1. 237 Saul (n 87), 114. 238 (1988) 166 CLR 1. 239 1968 (2) SA 284. 240 Madzimbamuto (n 239), 363–364 241 Bancoult No 1 (n 1), [71]. 242 Bancoult No 1 (n 1), [71].

Conclusion

The history, law and politics of the peace, order and good government (POGG) clause as discussed in this book presents a paradox of various dimensions in Commonwealth constitutionalism. How can one explain the continued versatility of POGG as a clause which has had a near seamless statutory and constitutional transmutation across the experience of colonialism, authoritarianism, apartheid, democratisation and federalism (and consociation), and maintained its vigour? There are arguably very few other words in constitutions or statutes that have such striking contrasting and sometimes dramatic deployment and implications within Commonwealth constitutionalism and, indeed, beyond. The versatility of POGG, no thanks to the common law tradition, has continued, even when, as the Bancoult litigation demonstrates, it requires at least a rethink or, even more radically, is consigned to the past of empire where it arguably properly belongs. The preceding analyses disclose that the inclusion of POGG in many Commonwealth constitutions is essentially a product of the historical fact of colonialism rather than the pursuit of the ordinary purport of the component words. ‘Peace, order and good government’ has generally developed into a legal term of art in Commonwealth constitutionalism. However, it has sought to be demonstrated that contrary to the prevalent view of the meaning and implication of the clause, this is neither inevitable nor uncontested. From an analytical point of view, it is arguable that the POGG clause suffers a coherence-deficit. Doubts remain about its meaning; should it, or should it not, be defined along the purport of its component words? For many in the legal academy, jurists and judges, the meaning of POGG cannot be deciphered from the component words. The old case, Riel,1 and the recent majority decision of the House of Lords in Bancoult No 2 (HL)2 are representative of this view. On the other hand, some have also held on to the arguably preferable but still ‘unorthodox’ view that the clause should be interpreted on the basis of the natural purport of the component words. Justice Street’s view in the New South Wales BLF case,3 the decision in Bancoult No 1,4 Bancoult No 2 (CA),5 as well as the dissenting opinion in Bancoult No 2 (HL) provide support for the latter position. Both within and across Commonwealth jurisdictions, the meaning of the POGG clause remains contested with implications for the correct judicial determination

Conclusion 239 of its nature and content. The level of contestation around the clause has led one Canadian commentator to liken giving content to it as a task that is ‘comparable to that of Sisyphus’.6 Sisyphus, as the Homer tale goes, was the mythological Greek god punished with rolling a big rock up a steep hill only for it to roll down before it gets to the peak. Of course, as the myth goes, Sisyphus was compelled to return to the starting block. A return to the starting point of the POGG power in the British Isles does suggest that it was intended as a limited objective power, ensuring the substantive welfare of those for whose benefit it was conferred rather than the subjective view of the power holder. The controversy around giving substantive content to the POGG clause is natural. Again, like the Sisyphean myth, the duty of mediating power, whether by a judicial-cum-political institution like the Privy Council, or conventional courts like those of the countries discussed in this book, will always remain an arduous, perhaps even thankless, job. As a matter of social experience, the disquiet that accompanies jurisdictional conflicts will always attract intense contestation given the nature of political power. This will be the case because here are a handful of people (usually men and, lately, a few women) engaged in moderating very involved jurisdictional claims. As became evident from various cases discussed in this book, as umpires, judges are entangled in resolving not only straightforward cases, but sometimes very passionate disputes and, in every context, there are no easy choices since there are always losers and winners. The function of the POGG clause also remains contested. As discussed in the Canadian, Australian and Nigerian contexts, the clause has been applied from the federalist perspective as a mechanism for delineating jurisdictional powers of central as against constituent elements of a federation along with the legislative power of respective national and sub-national legislative bodies. However, despite its frequent application to this important function, judicial interpretation and academic commentary have provided various views as to its exact nature and content within and across Commonwealth jurisdictions. This has resulted in different applications of the clause. The clause has commonly been referred to as a source of emergency powers and conferring residual powers in Canada and Nigeria, for instance. The words ‘emergency’ and ‘residual’ on the surface are clear as to their ordinary meaning. However, there is neither judicial nor academic convergence as to the parameters of what constitutes emergencies or residual powers. It is not clear whether emergencies involve only security or safety issues or should be viewed as extending to economic policy, social policy or even environmental concerns. This is a debate that remains alive in the Canadian and Nigerian jurisdictions and continues to feature in a number of cases such as Canada Temperance7 and ICPC 8 in Canada and Nigeria. More importantly, it is not clear that the attachment of POGG to the allocation of jurisdictional powers is sine qua non since a number of unitary jurisdictions have the clause in their constitutions. POGG has thrived in the Commonwealth largely as a result of the impact of the doctrine of stare decisis. The practice of following precedent in adjudication is perhaps the most prominent feature of the common law. It is generally accepted that the doctrine serves in part to fetter the discretion of judges and juries to

240  Colonial and Post-Colonial Constitutionalism in the Commonwealth ensure the rule of law.9 It is recognised that the stare decisis tradition of the common law ‘creates a seamless web connecting the past to the present and future’.10 In adherence to the doctrine of stare decisis, judges are required to look to past law to gain an understanding of it in the present. This feature of the common law operates in a way that ensures that ‘reliance upon binding precedents leads courts to begin every new case with an examination of the past’ and this reliance yields ‘a foundation for future cases’.11 The practice of precedent-following no doubt holds many benefits for those charged with adjudication. However, fidelity to the theory of the ‘seamless web’ function of the doctrine of precedent applied to the POGG clause has tied what could be a desirable power to the expediencies of colonial rule. Fidelity to the doctrine can in some cases foster blatant injustice as the Bancoult litigation generally demonstrates and in particular the House of Lords decision in Bancoult No 2 (HL). Consider the panoply of reliance on precedent in the case. Recall for instance how the majority opinion in Bancoult No 2 (HL) relied on Burah12 and Riel, both of which were decided in the context of empire and colonial rule. While the three Law Lords similarly relied on Ibralebbe,13 Union Steamship,14 Durham,15 Chenard & Co v Arissol16 and Local Prohibition,17 among others, it is interesting to note that each of them had relied in turn on the earlier decision of the JCPC in Riel which has been most influential on the matter across the Commonwealth and has created a genealogy of colonial jurisprudence which continues to hold sway in an age of self-determination. Recollect in this regard that Lord Rodger described the aforementioned cases (and a number of earlier decisions) as authoritative. Lord Rodger had gone further to state that these were to be preferred over the opinion of Street CJ in the New South Wales BLF case18 which Sedley JA of the Court of Appeal (England and Wales) had found ‘most illuminating’.19 It is further intriguing to note that the late Lord Bingham had similarly hinged his dissent in Bancoult No 2 (HL) partly on precedent; the Law Lord held that there was no authority for the proposition that the royal prerogative was ever used for exiling a population from their indigenous population from their homeland. ‘Authority’, the revered Law Lord declared, ‘negates the existence of such a power’.20 Legal history no doubt plays some role in legal interpretation in most legal systems. That role is a pivotal one in the common law system.21 However, the genealogy of colonial jurisprudence has come to constitute a burden on the POGG clause. All over the Commonwealth, the courts have continued to follow the earlier decisions on the purport of the POGG power in adherence to the precedent-following tradition of the common law system. This genealogy of colonial jurisprudence has fixed the meaning and scope of the peace, order [welfare] and good government power as they were originally deployed as part of the royal prerogative in the days of empire with its accoutrements of colonialism. It accounts for the dominance of the judicial view of it as ‘plenary’ and unassailable when it is used to subvert fundamental and inalienable rights such as that suffered by the Ilois. In Bancoult No 2 (HL), the apex court of a deemed liberal democratic state has upheld that genealogy in an era of accountability for power and pre-eminence of universal human rights. In this way, the established tradition of the common

Conclusion 241 law, a major feature of the contemporary legal system bequeathed by Britain to the Commonwealth, has effectively stultified a progressive, socially responsive, accountable and rights-conscious judicial interpretation of the POGG clause. As Laws LJ rightly considered in Bancoult No 2 (HL), the POGG power may suggest ‘a very large tapestry, but every tapestry has a border’.22 This view was approved by Lords Bingham and Mance in their dissents in Bancoult No 2 (HL) and supported by many commentators, as the appropriate interpretation that should be placed on this ubiquitous clause in Commonwealth constitutions. However, the prevailing judicial view remains that the words confer plenary, unchecked powers of a Parliament even where that ‘Parliament’, as in the Chagos Islands experience, is of dubious legal configuration – colonial, dispossessing and unrepresentative. The judicial preference for this view steeped in colonialism and reinforced by the common law principle of precedent in Commonwealth jurisdictions has continued to defy the objective meaning of the words and sometimes the need to respect the principles of international human rights. In this event, POGG has assumed the status of a Grundnorm of sorts to legitimise not only colonialism but also its political progenies, namely authoritarianism and apartheid. As a result, there is a strong argument to address the implications of the dominant interpretation of ‘peace, order and good government’ in an age of rights, self-determination and democracy to check abject failures of justice and the rule of law which have sometimes hallmarked the use of the power as exemplified by the experience of the Ilois. Otherwise, we might yet witness many more incidents of the sagas of deceit, perfidy and violations of human rights, resulting in abstruse legal failures where untrammelled (imperial or authoritarian) power is deployed to make deserts of lives only for that to be represented as ‘peace’.23

Notes  1 Louis Riel v The Queen ex parte Riel (1887) LR 10 AC 675 (PC).  2 R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs [2008] UKHL 61, [2009] 1 AC 453.  3 Building Construction Employees and Builders’ Labourers Federation of New South Wales v Minister for Industrial Relations (1986) 7 NSWLR 372, 382–385.  4 R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs [2001] QB 1067.  5 R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 2) [2007] EWCA Civ 498; Secretary of State for the Foreign and Commonwealth Affairs v R (Bancoult) [2008] QB 365.  6 JA Mackenzie, ‘The Anti-Inflation Act and Peace, Order and Good Government’ (1977) 9(1) Ottawa Law Review 169.  7 Attorney-General of Ontario v Canada Temperance Federation [1946] AC 193.  8 Attorney-General of Ondo State v Attorney-General of the Federation and 35 others (2002) 6 SC (Pt I) 1.   9 John Delaney and Anne Burgess, Learning Legal Reasoning: Briefing, Analysis and Theory (John Delaney Publications, Philadelphia, 2007), 5. 10 Oona Hathaway, ‘Path Dependence in the Law: The Course and Pattern of Legal Change in a Common Law System’ (2009) 86 Iowa Law Review 101, 102. 11 Hathaway (n 10), 102. 12 (1788) 3 App Cas. 13 Ibralebbe v The Queen [1964] AC 900.

242  Colonial and Post-Colonial Constitutionalism in the Commonwealth 14 Union Steamship Co of Australia Pty Ltd v King (1988) 166 CLR 1. 15 Durham Holdings Pty Ltd v News South Wales (2001) 205 CLR 399. 16 [1949] AC 127. 17 Attorney-General of Ontario v Attorney-General of Canada [1896] AC 348. 18 New South Wales BLF case (n 3). 19 Bancoult No 2 (HL) (n 2), 504–505. 20 Bancoult No 2 (HL) (n 2), 491–492. 21 Hathaway (n 10), 103. 22 Bancoult No 2 (HL) (n 2), 488. 23 I have adapted different statements made respectively by David Snoxell, ‘Expulsion from Chagos: Regaining Paradise’ (2008) 36(1) Journal of Imperial and Commonwealth History 119, 129 describing the deportation of the Ilois as ‘a saga of deceit, perfidy and human rights’, and Lord Justice Laws in Bancoult No 1 (n 4), [59]: It was Tacitus who said: ‘They make a desert and call it peace – Solitudinem faciunt pacem appellant … He meant it as an irony; but here, it was an abject legal failure.’

Index

African nationalism 130 anti-corruption initiatives 142–144; see also Corruption apartheid 1, 2, 3, 141, 155, 220, 222, 228, 229, 238, 241 audi alteram partem 224 authoritarianism 3, 128, 133, 139, 241, authoritarian rule 25, 130, 133, 135, 139, 149, 156, 183, 218 Australian Constitution 23, 87, 90, 92, 106, 113. 117, 1118, 119, Australian constitutionalism 88, 91, 92, 95, 113; peace, order and good government in 95 Bechuanaland 16, 17 Bingham 19, 180, 181, 182, 183, 213, 215, 240, 241 Birkenhead, Lord 226 British constitutionalism 1, 7, 18, 19, 216, 217 British Empire 3, 4, 6, 7, 9, 10, 14, 16, 17, 20, 21, 22, 23, 24, 28, 56, 58, 94, 129, 162, 165, 166, 172, 184, 193, 194, 195, 196, 197, 198, 207, 209, 230 British history 182, 207 British Isles 7, 10, 30, 161, 162, 165, 186, 207, 219, 239 British North America Act 1867 26, 42, 43, 45, 58, 60, 63, 68, 88, 167, 200 British Settlements Act 1887 20, 23, 25, 26 Board of Trade 209, 211 Cairns, Alan 47, 48, 199, 200 Calvert, Harry 164, 167, 168, 170 Calvert, Sir George 11, 29 Canadian constitution 28, 38, 44, 46, 47, 57, 65 Canadian constitutional system 44

Canadian constitutionalism 39, 42, 43, 44, 45, 46, 47, 66, 74, 201, 205 Carnarvon, Lord 26, 27, 208 Carswell, Lord 161, 167, 168, 170, 180, 189, 218 Chagos Archipelago 170, 171, 185, 196 Colonial Governor 6, 15, 16, 19, 20, 24, 20, 40, 43, 89, 137, 138, 211 colonial history, 193, 194, 205, 208 colonial law 23, 184, 173, 174, 194, 197, 212 Colonial Laws Validity Act 23, 24, 36, 177, 183 Commissions 8, 15, 22, 211 Commonwealth constitutionalism 1, 2, 3, 6, 9, 15, 19, 20, 26, 27, 28, 30, 52, 151, 162, 190, 193, 194, 195, 196, 198, 203, 205, 219, 227, 238 Commonwealth socio-legal history 7, 20 common law 1, 3, 7, 9, 12, 21, 23, 26, 27, 30, 45, 54, 56, 74, 102, 111, 112, 113, 119, 132, 174, 175, 184, 202, 209, 217, 228, 238, 239, 240, 241 consociation 3, 74, 128, 139, 140, 155, 238 constitutional law 3, 7, constitutional lawyers 215 corruption 8, 14, 134, 142, 143, 144, 145, 146, 147, 148, 152, 153, 155, 207 ‘covering the field’ 147, coup d’etat 136 De Republica Anglorumi 8 delegatus non potest delegare 30 Dicey 19, 24, 90, 93, 216, 217, 218 direct rule 14, 161, 164, 165, 187, 188 devolution 161, 162, 163, 164, 168, 188, 230 Dyzenhaus, David 204, 232, 236

244  Colonial and Post-Colonial Constitutionalism in the Commonwealth East Indian Company 13, 14, 212 emergency powers 3, 61, 64, 66, 106, 131, 141, 239 England 2, 6, 7, 8, 9, 11, 12, 13, 16, 207, 217, 219 European Convention for the Protection of Human Rights and Fundamental Freedoms 178 European Court of Human Rights 186, 199 extra-territoriality 96, 98, 100, 102, 103 extra-territorial test 100 (see also extra territoriality) federalism 28, 39, 44, 46, 65, 70, 71, 72, 73, 74, 75, 91, 92, 93, 102, 103, 128, 13, 140, 142, 144, 145, 146, 148, 150, 152, 153, 154, 155, 198, 199, 215, 220, 225, 238; and peace, order and good government 225–226; and the courts 47–48 formalism 155, 183, 185 forum non conveniens 173, 197 George I 163 George II 39 George III 40, 208 Ghana 4, 20, 184, 226, 229 Goldsworthy, Jeffrey 194, 202–205, 232 Grundnorm 134, 241 Haldane, Lord 66, 198, 201, 226, 231 Hale, Baroness,217, 218 ‘happy and good government’ 11, 12 Henry VII 8, 10, 32, 207 High Court of Australia 43, 70, 88, 90, 199 Hoffmann, Lord 1, 182, 186, 191, 192, 200, 217, 231. Hogg, P. 67, 78, 83 Hope, Lord 217, 218 House of Lords 2, 3, 18, 19, 26, 27, 45, 144, 164, 166, 176, 179, 182, 185, 186, 197, 211, 213, 217, 238, 240 human rights 1, 112, 113, 125, 126, 133, 136, 170, 177, 178, 183, 184, 185, 186, 199, 204, 218, 222, 240, 241 Human Rights Watch 136 Ignatieff, M. 37, 76 Ilois 170,171,172, 173, 176, 184, 185, 196, 240, 241 Imperial Parliament 22, 29, 90, 94, 95, 96, 110, 204

imperial rule of law 196; and the Judicial Committee of the Privy Council 196– 202. India 1, 2, 6, 13, 14, 15, 22, 28, 56, 200, 212, 225 indirect rule 137 Instructions (letters of) 12, 16, 17, 21, 22, 32, 40, 41, 42, 43, 77, 207, 208, 209, 210 Irish Free State 164, 166, 168 Irish Home Rule 164 JCPC 3, 20, 23, 26, 28, 39, 40, 43, 44, 45, 47, 48, 49, 50, 55, 56, 57, 58, 60, 65, 66, 67, 73, 74, 75, 79, 81, 83, 84, 86, 89,118, 138, 109, 190, 194, 195, 196, 197, 198, 199, 200, 202, 206, 214, 227, 229, 230, 240; see also Judicial Committee of the Privy Council Jennings, Sir Ivor, 26, 52 Judicial Committee of the Privy Council 2, 3, 39, 90, 162, 173, 196; and peace, order and good government 196–202 judicial independence 198, 201, 202 judicial review 23, 39, 44, 45, 46, 47, 48, 88, 91, 92, 129, 13, 132, 136, 171, 178, 179, 180, 189, 196, 200, 216, 218, 220; and peace, order and good government 45–47 Justices of the Peace 8, 10, 207, 210 Justices of the Peace Act 1489 8, 10, 30, 31, 161, 162, 207, 228, 230, 233; see also Justices Act 1489 Keith, Arthur Berriedale 194, 202, 203 Killey, Ian 211 Kotze, Chief Justice 220 Klug, Heinz 202, 221 Laskin, Bora 44, 47, 63, 64, 65 Laws, Lord Justice 171, 173, 174, 175, 177, 178, 185, 186, 241 Laws of England 13, 16, 40, 94, 98, 186, 12, 13, 22 (see also England) legalism 87, 88; culture of in Australia 92–93 Letters Patent 9, 10, 11, 13, 16, 17, 22, 32, 33, 43, 94, London 13, 19, 26, 40, 163, 166, 168, 173, 196, 198, 200, 207, 208, 209, 210, 211, 212, 219 locus standi 132, 156

Index Magna Carta 173, 174, 175 Mance, Lord 24, 180, 181, 182, 213, 241 Mauritius 20, 170, 171, 172 Murray, James 21, 40, 41, 208, 209, 210 Mughal Empire 14; Moseneke, Chief Justice 221 ‘national concern’, matters of 49, 50, 53, 63, 65, 67, 68, 69, 70, 72, 73, 74, 75, 81, 104, 105, 106, 107, 119, 145 ‘nationhood power’ 106, 107, 108, 119 ‘New World’ 9, 16 New Zealand 25, 66, 166, 226, 230 Nigeria 1, 2, 6, 91, 128, 129, 130, 13, 132, 133, 134, 135, 136, 137, 138, 139, 140, 141, 142, 143, 144, 145, 147, 148, 149, 152, 153, 155; post authoritarian period in 131, 133, 140, 142, Nigerian Constitution 92, 147 Nigerian constitutionalism 129, 139, 151 North American Colonies 2, 6, 9, 46, 211 Northern Ireland 2, 161, 162, 613, 164, 165, 166, 167, 168, 169, 170, 180, 183, 184, 186, 187, 188, 219 originalist 3, 4, 194, 202, 203, 205, 211, 212; theory of legal interpretation 203 originalism 228; see also Originalist parliamentary sovereignty 87, 90, 109, 113, 155, 216, 217, 219, 220, 222; absolute 220–225; and peace, order and good government 109–118 parliamentary supremacy 45, 46, 61, 92, 110, 11, 113, 116, 134, 174, 194, 216, 217, 218, 219, 220, 221, 228; constraints on 217; see also Parliamentary sovereignty ‘pith and substance’ 48, 104, 167, 169 peace and welfare 210 peace, welfare and good government 7, 8, 12,17, 22, 23, 33, 40, 41, 42, 43, 87, 94, 95, 96, 109, 111, 112, 116, 122, 203, 206, 207, 208, 211, 212, 213 Poole, Thomas 18, 20 political transition 128, 139, 140, 150, 154 Privy Council 2, 3, 20, 22, 39, 41, 87, 90 and 93; see also Judicial Committee of the Pricy Council Privy Councillors 198, 200, 231 public good 183, 206, 208 public weal 206, 209

245

Québec 21, 40, 41, 42, 44, 58, 61, 67, 78, 79, 208 Québec Act 1774 40, 41, 45 residual power 43, 45, 48, 49, 53, 72, 74, 103, 105, 118, 131, 225, 239 royal prerogative 1, 6, 7, 15, 18, 19, 20, 21, 162, 171, 180, 181, 182, 185, 195, 240; connection to peace, order and good government 18–21; limits of 180–182 Royal Proclamation of 7 October 1763 40, 208 rule of Law 48, 115, 170, 174, 183, 184, 185, 186, 191, 192, 195, 197, 202, 217, 218, 222, 240, 241; see also Imperial rule of Law Saul, John Ralston 38, 43, 194, 202, 205, 206, 207, 208, 209, 211, 212, 227, 228 Sedley, LJ. 1, 178, 19, 198, 191, 192, 240 self- government 6, 22, 24, 87, 114; see also Self-rule self-rule 6, 22, 25; see also Self-government Sierra Leone 213, 214, 215 Smith, Sir Montague 30, 50, 51, 52,53,54,86 Smith, Sir Thomas 8 Africa 1, 2, 6, 16, 17, 18, 25, 130, 141, 155, 156, 184, 215, 216, 219; absolute parliamentary sovereignty in 220–225 Southern Africa 16 stare decisis 21, 54, 74, 239, 240, Statute of Proclamations 9 Supreme Court of Canada 39, 43, 44, 45, 49, 50, 52, 65, 66, 68, 71, 75, 226 Supreme Court of Nigeria 132, 213 Swaziland 20 traditional rulers 137, 138 ultra vires 29, 50, 54, 55, 56, 57, 58, 62, 64, 65, 68, 70, 100, 111, 113, 116, 117, 143, 166, 214 United States 2, 6, 9, 37, 38, 46, 73, 91, 92, 112, 162, 171, 176, 178, 182, 184 Wales, 2, 6, 9, 161, 162, 163, 164, 184, 187, 198, 214, 219 Watson 65, 66, 201 Witham’s principle 174, 175, 185, 186 Westminster Parliament 24, 102, 167, 169, 216, 219