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1938 Supreme(SC) 21
Privy Council At Malta
Sir Sidney Rawlatt, Lord Wright , Lord Atkin, Viscount Sankey, Justice Lord Chancellor, JJ.
Edgar Sammut and another -Appellant
Versus
Strickland -Resopndent
Privy Council Appeal No. 31 of 1938
Decided On : 30-06-1938
Blount Petre and Co., Burchells, Cyril Salmon, Berriedale Keith , John Foster, Kemelm Preedy
The Royal Prerogative to legislate for ceded colonies is suspended, not extinguished, by the grant of representative institutions. Upon the lawful revocation of such a grant, the Crown's prerogative to legislate for the peace, order, and good government of the territory is restored.
Headnote:(A) Letters Patent 1921 (S. 41, S. 68) - Letters Patent Act 1936 (S. 1) - Settlements Act 1887 (S. 6) - Foreign Jurisdiction Act 1890 (S. 1) - Letters Patent 1936 (S. 15, S. 17) - Validity of customs duty imposed by Ordinance - Royal Prerogative to legislate for ceded colonies - Effect of granting representative institutions on the Royal Prerogative - Whether revocation of representative government restores the prerogative to legislate.
(B) Royal Prerogative - The Crown is prima facie entitled to legislate for possessions acquired by conquest or cession. Cession includes voluntary cession by the general consent of the inhabitants. In such cases, there is an absolute power in the Crown to alter the existing system of law, consistent with the terms of cession.
(C) Grant of Representative Institutions - The grant of representative institutions to a colony precludes the exercise of the Royal Prerogative to legislate while those institutions continue to exist. However, such a grant does not irrevocably surrender or extinguish the prerogative. Upon the lawful revocation of the instrument granting representative government, the Royal Prerogative to legislate for the peace, order, and good government of the territory is restored.
Facts of the case:
A territory became a possession of the Crown in 1813. In 1921, Letters Patent established a legislature to deal with local matters, while reserving certain powers to the Crown. An Act of Parliament in 1936 provided that the Crown had full power to revoke or amend these Letters Patent. Subsequently, the Crown revoked the 1921 Letters Patent and issued new ones granting the Governor power to make laws for the peace, order, and good government of the territory. The Governor then imposed customs duties via an Ordinance. The respondent challenged the validity of the Ordinance, contending that the prior grant of representative government had irrevocably extinguished the Crown's legislative prerogative.
Findings of Court:
The territory was acquired by cession, and the Crown's prerogative to legislate for ceded colonies is a matter of common law. The grant of representative institutions suspended the exercise of the prerogative but did not extinguish it. Once the grant was lawfully revoked, the prerogative to legislate was restored.
Issues: Whether the territory was acquired by cession or by a compact that limited the Crown's prerogative; whether the grant of representative institutions irrevocably surrendered the Royal Prerogative to legislate; and whether the revocation of the grant restored the Crown's legislative authority.
Ratio Decidendi: The court held that voluntary cession is a form of cession that confers the Royal Prerogative to legislate. The grant of representative government precludes the exercise of the prerogative only while the legislative institutions exist; it does not extinguish the prerogative. Therefore, upon the lawful revocation of the grant, the Crown's original prerogative to legislate for the peace, order, and good government of the territory is revived.
Result: Appeal allowed.
Legal Category Hierarchy
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constitutional law
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royal prerogative
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legislative authority in colonies
- cession and conquest
- representative institutions
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legislative authority in colonies
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royal prerogative
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administrative law
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customs and excise
- customs duties
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customs and excise
Lord Maugham:-
This is an appeal from a judgment of His Majesty's Court of Appeal of Malta delivered on 4th March 1938, reversing the judgment given on 11th October 1937, by the Civil Court of Malta, First Hall. The appeal raises the question of the validity of a customs duty imposed under an Ordinance made by the Governor of Malta, namely the Ordinance No. 27 of 1936 . The respondent, who was the plaintiff in the action, raised the question by importing certain articles of the value of 3s. 9d. suitable for use in connexion with Coronation festivities. The appellant, Edgar Sammut, a Collector of Customs, exacted a duty on these articles in terms of the Ordinance 27 of 1936. This duty was paid under protest, and on 21st April 1937, the action was commenced. The trial Judge decided that the Ordinance was valid, but the decision of the Court of Appeal was to the contrary effect. Hence the present appeal.
The nature of the dispute can be shortly stated. It was admitted by counsel for the respondent in his learned argument that the Island of Malta (which for the present purpose includes Gozo) became a British possession in the year 1813 under circumstances which their Lordships will consider in a little more detail later. In the years 1849, 1887 and 1903 certain limited rights of administration were conferred on the inhabitants by Letters Patent and Orders in Council made by the Crown. In the year 1921 Letters Patent (to be called for convenience the Principal Letters Patent) were issued by His Majesty, dated 14th April 1921, establishing in Malta a Legislature consisting of a Senate and Legislative Assembly to deal with local matters. The material Section (S. 41) conferring the legislative powers on the Senate and Legislative Assembly began in the following terms:
It shall be lawful for Us and Our successors, by and with the advice and consent of the Senate and Legislative Assembly, subject to the provisions of these Our Letters Patent, to make Laws, to be entitled ' Acts, ' for the peace, order and good government of Malta, with the following limitations, namely that the said power to make laws shall not extend to matters (hereinafter referred to as reserved matters) touching the public safety and defence of Our Empire and the general interests of Our subjects not resident in Malta, or touching the general interests of Our subjects resident in Malta and the preservation and continuance of peace, order, and good government therein in the event of such interests and such peace, order, and good government being endangered, or the carrying on of responsible government under these Our Letters Patent being prejudiced, by reason of any grave emergency which the Secretary of State shall be satisfied has arisen and continues to exist within the Island, and (without prejudice to such general limitation) shall not extend to the following matters in particular or any of them.
There followed a description of some 17 matters which were so reserved. They included merchant shipping, external trade, immigration, coinage, and the appointment and remuneration of Judges of the superior Courts and the removal of such Judges. Any law passed by the Legislature had to be presented for His Majesty's assent to the Governor, and express provisions were contained in relation to that assent and to the power of the Crown to disallow any law within one year from the date of the Governor's assent thereof. By S. 68 there was reserved to the Crown "full power and authority from time to time to revoke, alter, or amend S. 41 and all other provisions relating to reserved matters or Imperial property and interests, and also Ss. 40, 56, 57 and 63 "of the Letters Patent as the Crown might think fit. And further there was reserved to the Crown by the Section "full power and authority from time to time to amend S. 41 so as to provide that the establishment, discipline, control and administration of the police or any particular matter relating to the subjects aforesaid or an
