DEPENDENT TERRITORIES

Early history. in dependent terri­tories has been the subject of controversy, not without important misunderstanding and misstatement. In 1870, the whole question of the removal and suspension of a Colonial Judge was referred to the Privy Council.

(a) Burke's Act. This Act, more correctly called the Colonial Leave of Absence Act, 1782,² provides that, if any person holding a Patent office misbehaves, he may be ‘amoved’ by the ‘Governor and Council’ subject to an appeal to the Queen in Council.

(£) Suspension. Under his Instructions and Commission a Governor had power to suspend a public officer, and when a suspension was confirmed by the Queen it was converted to dismissal. This applied to Judges, but in their case it was the usual, though not invariable, practice to refer the matter to the Judicial Committee.

(c) Petition. A Colonial Assembly might bring charges against a Judge by petition to the Queen for his removal, in which case the Privy Council exercised an original jurisdiction and tried the issue themselves.

The memorandum began with a general statement in the following terms: ‘It is obvious that some effectual means ought to exist for the

* 6 Moo N.S. Appendix following p. 368; & C—139. ² 22 G. 3, c. 75. removal of Colonial Judges charged with grave misconduct, and that these means ought to be less cumbrous than those existing for the removal of one of Her Majesty’s Judges in this country. The mode of procedure ought to be such as to protect Judges against the party and personal feelings which sometimes sway Colonial Legislatures, and to ensure to the accused party a full and fair hearing before an impartial and elevated tribunal’. The memorandum deprecated pro­cedure by way of address from Colonial Assemblies, explaining at some length the fairly obvious objections to the exercise of original jurisdiction by the Privy Council.

The response of the Secretary of State to the memorandum is apparent from a circular despatch sent to Colonial Governors on July 26, 1929, in which he stated that it had been the practice since 1870 to refer to the Judicial Committee any proposals to dismiss a Colonial Judge and that any such proposal to dismiss a Judge of a Supreme Court or High Court, whatever the charges, would, as a matter of course, be specially referred to the Judicial Committee. Thus, though technically most Judges continued to hold office during pleasure, it was well known that they would never be dismissed without reference to the Judicial Committee and no one suggested that their independence was not secure.

Terrell v Secretary of State. In 1953, however, a stir was caused in legal circles in this country (though there was very little reaction among the overseas Judges themselves) by the Judgment of Lord Goddard, C.J., in the case of Terrell v Secretary of State for the Colonies! Mr a’Beckett Terrell was a Judge in Singapore. At the time of the Japanese invasion he happened to be on leave in Australia and he could not, of course, continue to perform the duties of his office. No other suitable office in the Colonial Legal Service could be found for him, he was within two years of the normal retiring age, and he was required by the Secretary of State to retire. He challenged the right of the Crown to terminate his appointment in this manner, but ¹ 1’9531 a Q B., 482.

the Lord Chief Justice ruled that he held office at pleasure and that the Secretary of State, acting on behalf of the Crown, had an un­fettered discretion in the matter.

Pamphlet ‘British Colonial Judges’. In 1956, the Inns of Court Con­servative and Unionist Society produced a pamphlet entitled British Colonial Judges. It may be thought unnecessary, or even inappropriate, to make more than a passing reference to a document of this nature; but as it has occasionally been referred to as an authority, without any apparent appreciation of a number of defects, I feel it incumbent upon me to point out some of them.

(a) First, it stated categorically that under the Act of Settlement and the Supreme Court of Judicature (Consolidation) Act, 1925, an address by both Houses of Parliament was, and is, required before a Judge can be removed. The authors entirely ignored the authority to the contrary?

(3) Secondly, the pamphlet found difficulty in the construction of Colonial Regulation 63? which governed the application of various regulations to the Judiciary. The suggestion in the pamphlet was that it was not clear that a Judge could not, without reference to the Judicial Committee, be compulsorily retired under Regulation 76 (which provided for retirement on grounds which cannot be dealt with by specific charges).

Regulation 76 applied to a Judge subject to certain qualifications, one of which was that the question of his retirement under Regulation 76 would be referred to the Judicial Committee, I cannot see how there could be the faintest room for doubt.

(c)Thirdly, there is a dear implication¹ that Colonial Judges serving in territories where the safeguards have not been made statutory, have ‘no security of tenure’, and that the Executive can dismiss them at will. No great exception could be taken to this if it had been explained that the passage in question was dealing only with the strict legal position. But there was no such explanation and it appears that the statement was meant to be literally true, for the pamphlet daimed dogmatically that ‘it is no answer to say that the type of man appointed Secretary of State for the Colonies would not in fact use his power in such a way, or that the Executive branch of the Oversea Service or the Colonial Office itself would be unlikely to request or advise it. Much less is it an answer to say (if it be true) that the power has never been so abused in the past’. To imply, as this does, that Colonial Regulations, a Circular Despatch and public statements would be ignored or even that a Secretary of State would wish to ignore them, and that if he were to do so he could get away with it, displays a surprisingly unrealistic attitude.

(d) Fourthly, among the recommendations in the pamphlet is that an Act of the ‘Imperial’ Parliament should create an Oversea Judicial Service and that it should forbid any reduction in the salary attached to any Colonial Judidal Office during tenure of that office by any person.² The opinion expressed by the authors, that this should not be regarded as encroachment upon the domain of Colonial Legisla­tures, shewed little awareness of Colonial politics.

(e) Fifthly, another recommendation is that a Judge should be liable to be dismissed by the Crown, on grounds of misbehaviour or incapacity, after a hearing before, and upon the recommendation of, a Judicial Commission, though he should have a right of appeal to the Judicial Committee.³ The pamphlet does not, in so many words, suggest that this would be preferable to the established procedure, under which no decision for the dismissal of a Judge can ever be taken except after reference to the Judicial Committee, but that seems to be the implication.

(f) Finally, it is recommended that, if a Colonial Judge became unemployed owing to the abolition of his office, his salary should be

* p. 18. ¹ pp. 20-21. * p. 21. borne by the consolidated fund of the United Kingdom; that pensions of all Judges overseas should be charged to that fund; and that the Judges should have a legal right to pension, a right which Judges in England do not enjoy. This was, of course, intended as part of a design to secure judicial independence; but the fact remains that other public servants would have their own good grounds for claiming that their salaries and pensions should be likewise secured, and claims of this sort to exceptional, preferential treatment for Judges would be more likely to cause justifiable resentment than to meet with success.

Other passages in the pamphlet are open to criticism but I think I have said sufficient to justify my opinion that the views put forward are not so balanced, objective and informed as one would have hoped in a document from such a quarter, which was doubtless intended to make a helpful contribution to an important discussion.

Commonwealth and Empire Law Conference. A Paper on the tenure and qualifications of Colonial Judges was considered by a Committee of the Commonwealth and Empire Law Conference held in London in July 1955. Only 11 delegates attended and, as there was no one present who was in a position to answer the critics, discussion was some­what one-sided. The Committee passed a resolution expressing the opinion that 'Supreme Court and High Court Judges of the Colonial Territories should be appointed to hold office during good behaviour and not during the pleasure of the Crown’; but it was not put to, or adopted by, the Conference as such. In fact, Judges do hold office during good behaviour, except that there is a prescribed retiring age and, as in the case of a County Court Judge in England and High Court Judges elsewhere, the appointment of a Colonial Judge can be terminated on grounds of inability as well as misbehaviour.

Modern Statutory Procedure. Now, however, controversy on this subject is well on the way to becoming academic. Political leaders in overseas countries were alert to see in the parliamentary procedure an historical accident which was no model for a mid-twentieth century constitution, particularly in a country which could not have the advantage of political and judicial traditions built up through cen­turies. They preferred to preserve and enshrine in their constitutions the accepted procedure for removing a Judge in a dependent territory. The first in the field was the West Indies, and the Federal Constitu­tion of 1957 laid down the main principle—that a Judge should be removed only on the recommendation of the Judicial Committee. Soon afterwards, in the Constitutions of Nigeria and Singapore, we find sections setting out the procedure in greater detail. I take as my example the Federal Supreme Court of Nigeria.

If the Prime Minister represents to the Governor-General that the question of the removal of a Judge ought to be investigated, the Governor-General appoints a tribunal consisting of serving or retired Judges. The tribunal reports on the facts and recommends to the Governor-General whether he should request that the question of the removal of the Judge should be referred by Her Majesty to the Judicial Committee, and the Governor-General must make such a request if the tribunal so recommends. If the Judicial Committee advises that the Judge ought to be removed the Governor-General is required to act accordingly.

On the attainment of independence, the Federation of Malaya followed, with a modification consequent upon its unique position as the only Commonwealth Country with a Monarch who is not the Queen: the reference to the Judicial Committee is eliminated and the Judicial Commission itself makes recommendations to the Head of State.

The Judicial Committee procedure has now been embodied in a large number of constitutions, including those of independent Sierra Leone and Tanganyika, and it requires no inside knowledge or pro­phetic insight to foretell that the process will continue.

One point of interest in the normal procedure is that members of the tribunal may be Judges of Courts in any part of the Common­wealth. The reason for this is perhaps obvious—that in a country with a comparatively small Bench, Judges might find it embarrassing to be called upon to adjudicate on charges against one of their own brother Judges.

In Cyprus, Judges may be retired for incapacity or infirmity or dismissed for misconduct, and the procedure is judicial. In the case of a Judge of the Supreme Constitutional Court, the President and Vice­President are obliged to act in accordance with the decision of a Council consisting of Judges of the High Court. The constitution makes the same provision for Judges of the High Court, except that the tribunal consists of the Judges of the Supreme Constitutional Court.