Judicial Independence - Final Appellate Court Establishment

Author:Cheryl Thompson-Barrow

The decline of appeals to the Privy Council The case of Canada Australia's abolition New court in New Zealand The Caribbean's court challenge Decline of appeals and petitions to the Privy Council... (see full summary)


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The decline of appeals to the Privy Council

As has been demonstrated above, the Commonwealth of British nation states thus preserved their right to appeal to the Privy Council. Over time, however, as these states came to believe in the need to assert their own judicial path, such appeals proceeded along an inexorable road of decline. This decline was expressed through the varying routes taken towards judicial independence by these Commonwealth countries.

The 1931 Statute of Westminster2 gave enablement to the discontinuance of appeals to the Privy Council. That legislation applied to the 'Dominion of Canada, the Commonwealth of Australia, the Dominion of New Zealand, the Union of South Africa, the Irish Free State and Newfoundland'33. The removal of the application of the 1865 Colonial Laws Validity Act to the laws 'made after the commencement [the Colonial Laws Validity Act] by the Parliament of a Dominion'4 set the stage. Canada was the first to make de-linking movements, commencing in 1933 and ending by 1949. Upon gaining independence, India ceased appeals to the Privy Council in 1947, and this was followed by the gradual withdrawal of Ceylon, now Sri Lanka, and Africa. Malaysia abolished appeals in 1984 and Australia in 1986. In 1989, Singapore only reserved appeals to the Privy Council for death penalty cases, and by 1994 had fully ceased all appeals. The Gambia finally removed this jurisdiction with its 1997 Constitution, which provided for its Supreme Court to replace the Privy Council.

This book will examine the pioneering efforts of Canada and will investigate the crossing made by Australia from Downing Street to its own High Court in Canberra. The new millennium has also brought actions in New Zealand and the Caribbean to the fore, and these too will be analysed. Particularly for the Caribbean, this text comes at a time when the focus on best practices, coupled with the indigenous needs of a final court, has operated to produce the ultimate product deemed appropriate for the region's citizenry.

There have been strenuous arguments in the respective countries and regions, both for and against the removal of appeals to the Privy Council. At the time of writing, these arguments are particularly focussed in the new establishments of New Zealand and the Caribbean. However, similar sentiments have been consistently put forward over the decades. Former Registrar of the Privy Council, DHO Owen5 writing as Registrar in 1994 Page 10 examined two contrasting arguments. He quoted the statement in 1937 of former Australian Prime Minister Sir Robert Menzies:

'The appeal to the Privy Council is one of the few remaining formal links between the various parts of the British Commonwealth of Nations ... appeal to the Privy Council means that we preserve some broad uniformity of legal decision on matters of law which are common to the whole Empire, such as the Common Law and the general principles of Equity...'

He equally presented the position of the Chief Justice of India in 1965:

Since India won freedom, Indian legislatures have been ceaselessly working to bring about social and economicjustice in the country, and in the attempt by the legislatures to make laws with a view to solving the problems of poverty and unemployment they are always trespassing on fundamental rights... Every time we in India are called upon to consider the various constitutional effects of legislative enactments... we ask ourselves is it a reasonable invasion required for the public good. These are issues which would be alien in English court, but they are particular to the written Constitution of India.'

The opposing positions continue to inform the actions of interest groups in those countries and regions seeking to consolidate their final court establishment. The political arguments and the constitutional amendments that some countries are required to undertake also form part of the equation, the solution to which depends on political will being in tandem with the desire for judicial determination at an indigenous level.

The case of Canada

Canada attended the Commonwealth meetings, which lent greater understanding to the first route taken by a Commonwealth 'Dominion' in its final court establishment6. Canada as a Dominion was created in 1867 by the British North America Act. By Section 92(14), legislative jurisdiction lay with the provincial governments regarding the constitution, maintenance and organisation of the civil and criminal courts, including civil procedure. The central government, on the other hand, had responsibility for the judiciary. Utilising Section 92 of the British North America Act, in 1875 Canada established its Supreme Court:

'The Parliament of Canada, may, notwithstanding anything in this Act, from Time to Time provide for the Constitution, Maintenance and Organization of a General Court of Appeal for Canada, and for the Establishment of any additional Courts for the better Administration of the Laws of Canada.'

This move, it was envisaged, was to seek uniformity in the jurisprudence and law7.

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The Supreme Court was composed of five puisne judges, including two from the province of Quebec. Civil appeals would lie from the highest courts of the provinces.

The ensuing stage was for Canada to secure the Supreme Court as a final appellate one, thus abolishing appeals to the Privy Council. This attempt was made by amendments to the 1875 Act. A first amendment to this effect, preventing appeals from the provinces reaching the Privy Council, was defeated. A second amendment was introduced in Section 47 of the Act as follows:

'47. The judgment of the Supreme Court shall in all cases be final and conclusive, and no appeal shall be brought from any judgment or order of the Supreme Court to any Court of Appeal established by the Parliament of Great Britain and Ireland, by which appeals or petitions to Her Majesty in Council may be ordered to be heard. Saving any right which Her Majesty may be graciously pleased to exercise by virtue of Her Royal Prerogative.'

The argument used to frustrate this proposed amendment when sent to England for royal sanction, was that the Judicial Committee of the Privy Council was not a 'Court of Appeal', but a court of prerogative. In 1887, the Canadian Parliament passed An Act to Further Amend the Law Respecting Procedure in Criminal Cases8, altering the Criminal Code and giving the Supreme Court of Canada final say in all criminal matters. However, the Criminal Code amendment was tested in the case of Nadan v The King[1926]AC 482 (PC). Nadan's case held that the Criminal Code was ultra vires i n its attempt to remove the right of appeal to His Majesty in Council in exercise of the royal prerogative. This had the effect of nullifying the amendment to the Criminal Code, since it was determined by the Privy Council that His Majesty's right was retained to securejustice of his colonial subjects. The Judicial Committee Act of 1884, granting prerogative appeals, coupled with the Colonial Laws Validity Act of 18659, essentially stopped colonies from legislating any laws deemed repugnant to imperial legislation.

At the 1926 Imperial Conference, discussions ensued regarding the independence of dominions and the ability to determine their own constitutional arrangements. This culminated in the Balfour Declaration, with the recognition that judicial appeals should be determined by parts of the 'Empire' thus affected. This sentiment, as it was interpreted by Canada, was possibly given statutory confirmation in essence in the 1931 Statute of Westminster. Section 2 of that law removed the application of the Colonial Laws Validity Act of 1865 to any law made after its entry into force. It equally provided that no law shall be void or inoperative on the basis that it is repugnant to the law of England.

In 1933, Canada removed criminal appeals to the Privy Council by an Act10. When tested in British Coal Corp. v R [1935] AC 500, unlike Nadan v The King11, the Privy Council affirmed the removal of this bar in criminal matters.

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Abolition of civil appeals took more time, particularly as the provinces of Canada were in charge of their civil law and procedure fortunes (as has already been noted). In an advisory opinion of the Supreme Court of Canada in 1940, it was heldthat Canada had the right to bar all appeals to the Privy Council12. The war distracted the appeal of this decision to the Privy Council itself, but growing arguments for Canada to assert its independence brought the debate to the fore. In the Senate it was argued:

'It is abundantly clear from the results achieved that our nation was in a position to promote her own interests and to attain her full development under the impetus of her own decisions. If our statesmen excite the admiration of the whole world, and are listened to with attention in the Council of Nations, it is equally true that the progress brought about by their internal policies are a source of astonishment to the world... We are taking today a further step towards the autonomy necessary to present political status to Canada. The independence of our judiciary of our country is as necessary as her legislative and executive independence. It would be childish to believe that we could not find in our own country Canadians qualified to assume the responsibility of judging and deciding our own issues finally, definitely and exclusively'3

There were...

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