Governor-General v Burrows and Humes

• Jurisdiction: Bahamas
• Judge: Inniss, J.A.,Hogan, J.A.,Bourke, P.
• Judgment Date: 28 September 1974
• Neutral Citation: BS 1974 CA 1
• Docket Number: No. 10 of 1974
• Court: Court of Appeal (Bahamas)
• Date: 28 September 1974

Court of Appeal

Inniss, J.A.; Hogan, J.A.; Bourke, P.

No. 10 of 1974

Governor-General

and

Burrows and Humes

No Appearances.

Administrative law - Mandamus — Whether mandamus may lie against the Queen's representative, the Governor-General.

Inniss, J.A.

1 In these proceedings the appellant appeals against the whole of an order made by M.J. Thompson, J. on the 30 ^th August, 1974, whereby it was ordered –

• (1) that the appellant do forward to her Majesty the Queen without delay the respondents' petitions; and

• (2) that execution of the respondents be stayed until Her Majesty's pleasure is made known and asking that the said order be set aside.

2 The facts have been stated in another judgment and I do not propose to repeat them.

3 In making the finding on which he based the above-mentioned order the learned judge held, inter alia, as I understood him, that in delegating the exercise of the prerogative of mercy to the Governor General Her Majesty had not entirely divested herself of this prerogative and that the Governor General to whom had been delegated the powers which prior to July, 1973 had been exercised by the Secretary of State, had a legal duty to forward to Her Majesty a communication directed to Her Majesty by a citizen of the Bahamas.

4 The submissions on behalf of the appellant were summarised under 7 heads which were of course supported by argument. The first three are as follows –

1

The Bahamas has a documentary Constitution which is the Supreme Law under the express terms, of which the sole authority in the matter of pardon lies with a Minister of the Bahamian Crown — in fact the Minister of Home Affairs. 2. Her Majesty has no personal role in the exercise of clemency, under the ministerial system; and in the Independent Bahamas of today the ministerial system is introduced by written constitutional law, and not by convention. 3. The prerogative of mercy, like all prerogatives began as a common law power of the crown, but when a statute is enacted to govern the exercise of any particular prerogative, as the Bahamas Constitution now governs that prerogative as the supreme law of the Bahamas, then the common law prerogative ceases to exist.

5 The other four stated grounds on which it was submitted that an order of Mandamus would not lie to the Governor General.

6 Mr. Bethel, of counsel for the respondents, supported the order made by the learned judge by two main submissions. As I understood them they were –

• (1)

  • (a) that the Bill of Rights which conferred on subjects the right to Petition the Sovereign had been extended to the Bahamas by S.4 of the Declaratory Act, Chapter 2 of the Laws of the Bahamas; that Article 71 (1) of the constitution retained the monarchy and that citizens of the Bahamas were still subjects of Her Majesty and so entitled to petition her;

  • (b) that to deprive a citizen of his right to petition the sovereign would constitute inhuman treatment under Article 17 (1) of the constitution.

  • (c) that at common law the secretary of state was the proper channel of communication between the subject and the sovereign and that it was his duty to forward to the sovereign petitions of a subject ( Irwin v. Grey 3 F&F, 635 N. P.; 11 Eng and Emp. Dig, 576 No. 114 and other cases cited).

  • (d) that the effect of S.9 (3) of the Existing Laws Amendment Order, 1974, was to designate the Governor General as the person authorised to exercise the functions and duties of the secretary of state; and

  • (e) that the power so conferred on the Governor General was not the grant of a power required for the due exercise of his office but merely the grant of power to perform a duty which existed at common law ( Hochoy v. N. U. G. E. (1964) 7 W.I.R. 174) and so an order of Mandamus could be made against him.)

• (2) that under the Jurisdiction in Liberties Act, 1535 (Henry 8 C. 24 S. 1) the prerogative of pardon was declared to be personal to the sovereign and in Halsbury's Laws of England (3 ^rd Edition) paragraph 681, referring to that Act it is stated -

• “The sovereign may not grant away such personal prerogatives as… the right.. of pardoning offences” that right to exercise the prerogative not withstanding any delegation and had been extended to the Bahamas by virtue of Section 4 of the Declaratory Act, Ch. 2; that by virtue of Article 137 (13) of the Constitution the Constitution must be construed in accordance with Section 50 of the Interpretation Act Ch. 1 which provides –

• “No Act shall in any manner whatsoever affect the rights of the crown unless it is therein expressly provided or unless it appears by necessary implication that the crown is bound thereby.”; that the same principle was approved in Cooper v. Hawkins [1904] 2 K.B. 164 and applying that case, if a meaning can be given to Articles 90-92 without implying a divesting from Her Majesty of the prerogative of mercy it should be given that meaning.

7 He did, however, concede that a subsequent Act of Parliament might amend the Jurisdiction and Liberties Act.

8 I understood Mr. Bethel to submit, before closing his address, that the real issue for the court's attention was whether the Governor General has an obligation to forward the petitions and if that were established it was unnecessary the to examine the further question whether Her Majesty was entirely divested of the prerogative although he had sought to show that this was not the case.

9 With this contention I am unable to agree, for if Her Majesty no longer has any power to exercise the prerogative of mercy in regard to the Bahama Islands, it seems to me that it would be nugatory to order the Governor General to send the petitions to her and the court will not make an order of Mandamus if it would he nugatory to do so.

10 In the third Edition of his work Judicial Review of Administrative Action, at p.498, Professor S.A. de Smith, after pointing out that Mandamus is a discretionary remedy, states –

“Another writer has rightly observed that in considering cases in which the courts have exercised their discretion whether or not to grant mandamus ‘the question of general expediency will not be lost sight of’ (Robinson Public Authorities and Legal Liability 231) and indeed it is difficult to set any limit to the range of public policy considerations that the courts have decreed themselves to be entitled to take into account. In practice the main discretionary bars have proved to be unacceptable motives of the appellant the possibility that the effect of issuing the order will be nugatory, and the existence of effective alternative remedies.”

11 I turn therefore to a consideration of the question whether Her Majesty still has the power to exercise the prerogative of mercy personally in relation to the Commonwealth of the Bahamas.

12 In this connection I would observe that the statement in 7 Halsbury's Laws of England (3 ^rd Edition, paragraph 681 that the sovereign may not grant away such personal prerogatives as the …right… of pardoning offences is qualified in the note to that paragraph which states that the right of pardoning offences may be delegated in cases arising from distance or in the sovereign's absence, and is usually delegated to colonial governors. Further in paragraph 465 ibid. it is stated that it is usually delegated much more extensively to Governors General, and may be affected or parted with by the crown by express statutory authority. In Attorney General v. DeKeyser's Royal Hotel Ltd. (1920) A.C. 508 (H.L.) the basis for its being parted with by the crown in the case of a statute is stated by Lord Dunedin at p.256.

“Inasmuch as the crown is a party to every Act of Parliament it is logical enough to consider that when the act deals with something which before the act could be affected by the prerogative, and specially empowers the crown to do the same thing, but subject to conditions, the crown assents to that, and by that act, to the prerogative being curtailed.”

13 It is clear that the exercise of the Royal Prerogative of pardon has also been encroached upon by convention for in the United Kingdom the Sovereign generally exercises it on the advice of the Secretary of State (see 7 Halsbury's Laws of England (3rd Edition) paragraph 527).

14 Secondly, I would observe that under Section (1) of the Bahamas Independence Order 1973 the existing laws are to be construed “with such modifications, adaptations, qualifications and exceptions as may be necessary to bring them into conformity with the Bahamas Independence Act 1973 and this Order” (which by S. 3 brought the present constitution into effect). I understand this to include provision that the existing laws (which would include the Jurisdiction in Liberties Act 1535) are to be construed with such modifications, adaptations, qualifications and exceptions as are necessary to bring then into conformity with the constitution.

15 It is therefore important to see what provisions are contained in the constitution.

16 We are, of course dealing here with a written constitution and I agree with the submission made on both sides that the principle stated in Adegbenro v. Akintola and Another [1963] 3 All E. R. 544 should be applied. In that case at p.550 Viscount Radcliffe said –

“The second observation is perhaps only another way of making the same point. It is true that the Constitution of Western Nigeria, allowance made for the Federal structure, does embody much of the constitutional practice and principle of the United Kingdom. That appears from a study of its terms.

There are identifiable differences of scheme to be found in certain sections, but no one it seems questions the general similarity of the origin of many of its provisions. But accepting that, it must be remembered that)as Lord Bryce once said, the British Constitution works by a body of understandings which no writer can formulate; whereas the...