New Dominion constitutionalism at the twilight of the British Empire: An introduction (2024)

Abstract

The Empire was gradually incorporated into British constitutional thought during the nineteenth century. Public law principles were “extended as the possessions of the Crown increased.”1 Dicey’s theory of parliamentary sovereignty, which held that Parliament could make any law whatever and that no person or other body could override or set aside its legislation, “lent force to the Imperial legal system and to its supreme legislator, the Westminster Parliament.”2 The British Constitution’s inherent flexibility, with Parliament its only fixed point and constant center, facilitated imperial expansion while allowing for different systems of rule to be applied in different imperial settings.3 British Imperial possessions—including the various components of the UK, the Channel Islands, and the Isle of Man, the self-governing settler colonies, the Crown colonies, British India, protectorates, mandates, dependencies, and satellite states at its margins—were always heterogeneous, generating a wide variety of legal relations between center and peripheries.

This irreducibly plural quality makes the legal construction of the British Empire best explored through close contextual analysis of the linkages that existed between Britain and specific colonial counterparts. Constitutional design within the Empire’s various jurisdictions varied at different historical junctures depending largely on contingent political factors. From the late nineteenth century, the settler colonies of Canada (including Newfoundland), Australia, New Zealand, and South Africa were granted a form of self-rule,4 gaining recognition as Dominions before World War I. While Dicey could countenance accommodating these “Old Dominions” within his theoretical framework, he opposed both Irish Home Rule and Indian democracy.5 A number of commentators have noted a more general divergence between Dicey’s vision of constitutionalism based on the rule of law and the practices of British Imperialism, where executive power was often beyond the effective reach of the courts.6 The departure from British constitutional principles in Ireland, for instance, was evident in the wide range of discretionary powers vested in the executive and the unaccountable and discriminatory exercise of such powers.7

Dicey’s orthodox theory proved inflexible as the legal construction of the Empire began to change, first through the demands for self-rule within the Dominions, later in the wider moves toward decolonization that led eventually to the British Commonwealth. In those contexts, the idea inherent to orthodox theory that no Parliament could bind its successors became a stumbling block. It seemed to entail that the Imperial Parliament could never properly grant independence to one of its colonies, as in principle Parliament could at any time reverse such a grant and reassert its authority over the supposedly independent territory. Even if in practice constitutional conventions made this eventuality unlikely, it still meant that the business of granting self-rule or even full independence to British territories would be a legally uncertain affair.8

Writing in this period, Sir Ivor Jennings argued contra Dicey that Parliament was capable of limiting its own sovereignty, if not substantively then at least with formal or procedural limits (so-called manner and form restrictions).9 This position opened up the possibility of a legally “looser” Empire than Dicey had envisaged. But, while in certain respects more consonant with late-imperial needs, Jennings shared Dicey’s belief that the British Constitution was optimal, largely by virtue of its flexible and pragmatic nature. “The Commonwealth has inherited from Britain—or it may be from England—a tradition that precise definition of political power or status is unwise; and since to name is by implication to define, the Commonwealth prefers anonymity.”10 Jennings was also confident that this model could be exported, with care, to British territories on independence, a view that was shared by much of the British political class.11 This symposium issue examines the success of that conceit. It does so by examining the application of the Westminster model to an important subset of former British imperial territories—the “New” Dominions—in the form of interim constitutions designed to secure the transition from imperial subjection to sovereign independence.

1. New Dominion constitutionalism

“New Dominion constitutionalism” refers to a postcolonial transitional constitutional form that functioned as a conduit between colonial dependence and national independence after World War I in the cases of Ireland (1922–1937)—the “Bridge Dominion” between Old and New Dominion forms—and the post-World War II “New” South Asian Dominions of India (1947–1950), Pakistan (1947–1956), and Ceylon (later Sri Lanka, 1948–1972).

This symposium explores New Dominion constitutionalism inductively, from the bottom up, sensitive to the nuance of local concerns and particularities, and as concerned with the late-imperial periphery as the metropolitan center. It also analyzes the New Dominion concept contextually, placing it within a historically nested set of ideas and practices from the Old (Settler) Dominions through the “Bridge Dominion” of Ireland, before giving detailed attention to the South Asian “New” Dominions. It considers in particular the legal configuration of New Dominion status, and its legacies, by exploring the connection between New Dominion constitutional framing and post-independence design and practice, a theme developed in the final article in the symposium.

New Dominion constitutionalism represents an underexplored episode in law and politics at the twilight of the British Empire. We identify New Dominion constitutionalism as the first constitutional model designed to manage difficult political transitions on a global scale, a distinctive constitutional form that was both transitional and transnational.

Dominion constitutionalism represents a particular modality of decolonization by constitutional means. While granting complete independence in matters of foreign policy and lawmaking by rescinding ties with the Imperial Parliament, New Dominion constitutions maintained the link between the Dominion and the British Crown until such time as a new constitution was adopted. Dominion constitutions served as both a provisional frame of government and the juridical basis for the independent constitution. The political rationale for independence on the basis of Dominion status was to retain the former colonies within the British sphere of influence as members of the Commonwealth.

Our primary case studies of Ireland, India, Pakistan, and Ceylon/Sri Lanka reveal important variations from the patterns of constitutional development that were typical of the Old Dominions. The Old Dominions attained their status through the evolution of constitutional conventions on the assumption that settler colonies were culturally, socially, and politically equipped for responsible government: Canada (1867), Australia (1901), New Zealand (1907), Newfoundland (1907), and South Africa (1910). By contrast, New Dominion constitutions were actively designed with specific objectives in mind: establishing conditions for regime change within the newly independent states, preventing political violence, and fostering stability and cooperation with Britain in a changing international context. They are as such the antecedents of post-Cold War interim constitutions on which much academic and policy work has been conducted.12

2. The articles

This symposium issue features six articles. The first, by Peter Oliver, discusses the origins of Dominion status with specific reference to the Australian and Canadian experience. The article discusses how Dominion status was achieved in constitutional (legal and conventional) terms, and how it eventually came to an end. Paying careful attention to the Balfour Declaration (1926) and the Statute of Westminster 1931, it explores the idea, expressed by some commentators at the time, that the Dominions were effectively seeking in 1926–1931 that which the Americans had sought (unsuccessfully, of course) 150 years earlier. The article concludes by considering how orthodox understandings of Westminster Parliamentary sovereignty made the final transition from Dominion to independent nation hard to explain.

Luke McDonagh’s article contends that Ireland, a Dominion from 1922 to 1937, represents a bridge between the Old Dominions of Canada, Australia, New Zealand, and South Africa and the later “New” Dominions of India, Pakistan, and Ceylon. From a constitutional perspective, Ireland was the first of the Dominions to push against the legal limits of Dominion status, and to grapple with the implications of the prevailing Diceyan concept of Westminster Parliamentary Sovereignty. When the Irish legislature amended the 1922 Constitution to remove the “badges of inferiority” imposed by Dominion status, legal complications arose both from the internal (Irish) and external (Imperial) constitutional perspectives. Eventually, the only way to escape these difficulties was to bring forward a new foundational document—the 1937 Constitution of Ireland—accepted by plebiscite that same year. The enactment of the 1937 Constitution created a definitive break in legal continuity with the Westminster Parliament and established Ireland’s constitutional autochthony. Furthermore, the “difficult” Irish experience remained at the forefront of British minds during later negotiations over India, Pakistan, and Ceylon.

The article by Rohit De argues that India’s three years as a Dominion constituted an important transitional phase, as the country moved from being an imperial colony to an independent democratic republic. De notes that while the mechanisms of colonial government and the implications of the new republican constitution of 1950 are extensively discussed in scholarly debates over India, there is virtual silence about the Dominion period (1947–1950). Yet, he argues, understanding the Dominion period is critical for making sense not only of the legal infrastructure of decolonization but also of the roots of constitutional legitimacy. Dominion status created an anomalous period in the idea of juridical time, a gray zone between colonial subject-hood and republican citizenship; yet this period saw the drafting of the Indian Republican Constitution (1950). The British saw Dominion status as a mechanism to keep India in the Commonwealth defense strategy and to facilitate a British exit before communal violence got out of hand. But Indian nationalists saw it as a useful temporary option that would grant them the power to reshape radically newly independent India, seize control of the economy, integrate the princely states, and manage political opposition. It soon became clear that the British had misread the possibility of ongoing influence. Indians were able to overcome the authoritarian possibilities in Dominion status by the enactment of a republican constitution. However, while Dominion status was papered over with the constitution, its twilight continues occasionally to shine through the cracks.

Mara Malagodi’s contribution focuses on the litigation over the dissolution of Pakistan’s first Constituent Assembly by order of Pakistan’s Governor General Ghulam Mohammad through analysis of archival material in the UK and the USA. The central issue in the case was the Governor General’s exercise of his prerogative powers as the representative of the British Crown in the Dominion of Pakistan. The analysis concentrates on the interpretation of British law surrounding the exercise and conventional limitations to the royal prerogative offered by the two parties to the litigation, and the decisions of the Chief Court of Sindh and Federal Court, and the direct involvement of three prominent British legal actors in the litigation—constitutional scholar and advisor Sir Ivor Jennings and Kenneth (later Lord) Diplock for the Governor General; and noted barrister, left-wing political activist, and former member of Parliament (MP) for Hammersmith North, Denis Nowell Pritt for the President of the Constituent Assembly. The article argues that the legacy of Dominion status in Pakistan is instrumental in explaining the rise and configuration of authoritarian constitutionalism in the country. The Dominion Constitution in Pakistan became an empty vessel: it retained the procedural constitutional language of Westminster and the legal fictions that underpin it, but its substantive commitment to democracy was subverted from within. The version of New Dominion constitutionalism that instantiated in postcolonial Pakistan thus accommodated, justified, and normalized patterns of authoritarian governance in legal form.

The article by Rehan Abeyratne examines how, in 1948, Ceylon (later, Sri Lanka) was granted the functional equivalent of Dominion status, referred to as “fully responsible status within the British Commonwealth of Nations”—this was due to a concern that the term “Dominion” would not be well received in Ceylon, as it retained the connotation of being subordinate to Britain. Uncertainty over Ceylon’s sovereignty and its degree of independence from Britain were hallmarks of the Dominion period, illustrating that Dominion status was an undertheorized concept. In particular, a series of cases took place involving both judgments of the Supreme Court of Ceylon and appeals to the Judicial Committee of the Privy Council, which remained the final appeal court of Ceylon until 1972, longer than other New Dominions. The Privy Council’s role in Ceylon’s legal system was controversial. The cases show that Ceylon’s courts courts took a consistently deferential approach on constitutional matters, upholding laws that largely disenfranchised the Indian Tamil community13 and that made Sinhalese the only official language.14 The Privy Council upheld the first case, and reversed the second, but only on the narrow question of a public servant’s capacity to sue the Crown, declining to express a view on the constitutionality of the impugned legislation. In other cases, however, it was noticeably less deferential to local opinion, reversing the Ceylon Supreme Court in landmark judgments in which it sought to articulate judicially enforceable constitutional limits on legislative capacity.15 But the Privy Council’s judgments had little effect. Ultimately, Abeyratne concludes that even after the new Constitution of Sri Lanka in 1972, Dominion constitutionalism—characterized by judicial restraint, and uncertainty over national (and parliamentary) sovereignty—appears to have had lingering effects on the Sri Lankan judiciary’s approach to constitutional adjudication.

Building on the case studies, the final article by Mara Malagodi, Luke McDonagh, and Thomas Poole elaborates on the claim that New Dominion constitutionalism was the first constitutional model of note designed to manage political transitions on a global scale. The article situates the four case studies within a wider historical context, including not only the end of Empire but also the beginning of the Cold War. It also explains the disjuncture between the intended goals of New Dominion constitutionalism from the British perspective—retaining a measure of control over newly independent former colonies—and the aims of local actors, who made use of the transitional model to push for full independence from Britain. The authors note that in each case British hopes were frustrated. The article isolates ten elements of the New Dominion model, illustrating the significance of each element in term. It concludes by assessing the legacies of New Dominion constitutionalism with regard to the imprint left by New Dominion constitutionalism on subsequent constitutional orders. The New Dominion constitutional phase represents a crucial moment across the case studies and helps explain the different constitutional trajectories of these countries after independence.

Acknowledgements

The authors wish to express their gratitude to the Modern Law Review for providing funding for the Modern Law Review Seminar 2016 ‘Dominion Status at the Twilight of the British Empire’ held at City, University of London in June 2016, where these symposium papers were first presented and discussed.

1

SeeIvor Jennings & C. M. Young, Constitutional Laws of the British Empire 1 (1938).

2

SeePeter Oliver, The Constitution of Independence: The Development of Constitutional Theory in Australia, Canada and New Zealand 56 (2005).

3

See Dylan Lino, Albert Venn Dicey and the Constitutional Theory of Empire, 36(4) Oxford J. Legal Stud. 751 (2016).

4

The relevant statutes of the Imperial Parliament are: New Zealand Constitution Act, 1852; British North America Act, 1867 (renamed the Constitution Act, 1867 in 1982); Commonwealth of Australia Constitution Act, 1900; South Africa Act 1909. Dominion status was thereafter officially granted with the Balfour Declaration of 1926. See also Colonial Laws Validity Act 1865 (UK), 28 & 29 Vict., c. 65, authorized colonial legislatures to amend their constitutions but stated that such amendments had to be made “in such manner and form as may from time to time be required by any Act of Parliament, letters patent, order in council or colonial law for the time being in force in the said colony.”

5

See A. V. Dicey, England and Ireland, 35 Nation 267 (1882); A. V. Dicey, The Influence of India on English Opinion, 22 Nation 82 (1876).

6

SeeRande Kostal, A Jurisprudence of Power: Victorian Empire and the Rule of Law (2005); Thomas Poole, Reason of State: Law, Prerogative and Empire (2015); Dylan Lino, The Rule of Law and the Rule of Empire: A.V. Dicey in Imperial Context, 81(5) Modern L. Rev. 739 (2018).

7

Keith Ewing and Conor Gearty have shown how patterns of state coercion were already in place in the 1880s in Ireland, an integral part of the UK until the early 1920s, and then in Northern Ireland afterward. See K. D. Ewing & C. A. Gearty, The Struggle for Civil Liberties: Political Freedom and the Rule of Law in Britain, 1914–1945, 331–392 (2000).

8

Geoffrey Marshall, Constitutional Conventions—The Rules and Forms of Political Accountability 201 (1984), noting that the use of convention would likely prevent this from happening, though it remained a legal possibility. See especially the decision of the Judicial Committee of the Privy Council in British Coal Corporation v. The King, [1935] A.C. 500.

9

W. Ivor Jennings, The Law and the Constitution ch. 4 (5th ed., 1959).

10

See W. Ivor Jennings & C. M. Young, Constitutional Laws of the Commonwealth 1 (1952).

11

W. Ivor Jennings, The Approach to Self Government 1–24 (1958). See Mara Malagodi, Ivor Jennings’ Constitutional Legacy Beyond the Occidental-Oriental Divide, 42(1) J. L. & Soc’y 102 (2015).

12

For recent work on post-Communist and post-conflict constitutional transitions, seeAndrew Arato, Post-Sovereign Constitution-Making (2016); Constitution-making and Political Settlements in Times of Transitions [Special issue], 6(1) Global Constitutionalism (2017).

13

Mundanayake v. Sivagnanasunderam, (1951) 53 N.L.R. 25 (Ceylon).

14

Attorney General v. Kodeswaran, (1967) 70 N.L.R. 121 (Ceylon).

15

Liyanage v. Queen, [1967] 1 A.C. 259; Bribery Commissioner v. Ranasinghe [1965] A.C. 172. The obiter comments of Lord Sankey, maintaining the exceptional nature of the British Parliament, in the earlier (“Old” Dominions era) decision British Coal Corporation v. The King, [1935] A.C. 500 (PC), may be of interest here.

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