Kelsen in the 'Grenada Court': Revolutionary Legality Revisited

• Author: Simeon C.R. McIntosh
• Profession: Professor of Jurisprudence and Dean, Faculty of Law, University of the West Indies at Cave Hill, Barbados
• Pages: 105-193

Kelsen in the ‘Grenada Court’ | 105

KELSEN IN THE ‘GRENADA COURT’:

REVOLUTIONARY LEGALITY REVISITED

3

INTRODUCTION

This commemorative essay, which first appeared in a 1995 issue

of the Caribbean Law Review, to mark the outstanding contributions

of then Mr. Justice N.J.O. Liverpool to the intellectual life of the

Commonwealth Caribbean, presented an auspicious occasion as any

to revisit the question of ‘revolutionary legality’, given Justice

Liverpool’s seminal role in the decision in Andy Mitchell and Others.1

What is more, of the four Justices writing on the question of the

validity of the court, Justice Liverpool came closest to accepting

Kelsen’s theory of revolutionary legality.

The case arose out of a factual situation that is now commonly

known. In 1979, a group of revolutionaries by the name of the New

Jewel Movement ousted the constitutionally elected government of

Sir Eric Gairy and established themselves as the new government of

Grenada, under the title, ‘The Peoples’s Revolutionary Government

(PRG).’

The PRG made widespread and extensive changes in the structure

of governance in Grenada. It ‘suspended’ the Constitution, abolished

Parliament and the Cabinet-government in Grenada; and placed all

executive and legislative powers in a ‘Central Committee’ headed by

Maurice Bishop as Prime Minister. In addition, it established its own

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Supreme Court (High Court and Court of Appeal) in place of the

constitutional court2 which, in the wake of the coup d’état, was said

to have ‘departed’ Grenada and established head offices in Saint

Lucia.

The PRG ruled Grenada from March 13 , 1979 to October 19,

1983, when, in a ‘palace coup,’ it was destroyed by the killing of

Prime Minister Bishop and several other ministers. The leaders and

their cohorts of the coup were in due course captured by American

forces and handed over to the ‘local authorities’, headed by the

Governor-General, who had assumed executive power in Grenada.

In early 1984, the Governor-General reinstated the Independence

Constitution, but without those provisions pertaining to the court

system. Instead, the Governor-General issued a Proclamation that

effectively retained the Supreme Court established by the People’s

Revolutionary Government.

In due course, the leaders of the palace coup were charged with

the murder of the Prime Minister and the other ministers of the PRG,

and were bound over for trial in the High Court of Grenada. By way of

an ‘Originating Motion’ the accused challenged the constitutionality

of the Court, claiming that it lacked jurisdiction since it had been

established by the unconstitutional, revolutionary government, and

that the Governor-General lacked any authority under the

Independence Constitution to retain an illegal and unconstitutional

court.

The motion was denied and the accused appealed the High Court’s

ruling to the Grenada Court of Appeal. The sum total of the rulings in

both the High Court and the Court of Appeal was that the ‘Grenada

Supreme Court’, first established by the People’s Revolutionary

Government and subsequently retained by the Governor-General, was

indeed unconstitutional, but was validated for the time being, by the

law of necessity. As to the Court’s temporary validity, Haynes P. had

this to say:

But there is still this final point as the legality is temporary only. Until

when? I give this answer, until either effective steps shall have been

taken to resume the state’s participation in the pre-revolutionary

Kelsen in the ‘Grenada Court’ | 107

supreme court or constitutional legislation shall have been passed in

compliance with s.39 of the Constitution to establish another supreme

court in its place. Of course, it is assumed that the government will act

with reasonable despatch.3

In my earlier writings on the case4 I have argued that the question

of the jurisdictional competence and constitutionality of the Court

engaged a broader, more fundamental, issue of the political status

of the PRG regime at the time of its demise. That is, whether the PRG

had become the de jure government for Grenada by October 1983.

It bears noting that the question of the jurisdiction and validity of

a court is an otherwise ordinary legal/constitutional matter which is

settled on the authority of the prevailing constitution. In the factual

context of the present case, however, the question of the status of

the PRG became the most critical jurisprudential issue since it was

necessary to address that question in order to determine the legal/

constitutional issue. In other words, as I have argued in the earlier

essays, if the Court were to conclude that the PRG had in fact become

the de jure government for Grenada, then the Court was valid ab

initio, bearing in mind that the validity of any of the PRG’s enactments

were to be traced back to their moment of origin. The logical extension

of a conclusion of the PRG’s de jure status would have been the

annullment of the Independence Constitution, since the establishment

of ‘valid rule’ by a revolutionary regime is inconsistent with the

continued existence of the pre-revolutionary constitution. On this view,

then, the Governor-General, on the demise of the PRG, could not

have assumed power, as he claimed to have done, on the authority

of an annulled constitution. If this is correct, then the Governor-

General had rather established a de facto regime in Grenada; and

the question of the validity of the court he had ‘established’ had to

be determined on the authority of the ‘fundamental rule’ he had put

in place in Grenada.

Of course the four justices writing on the question of the validity

of the Court had in fact addressed the question of the status of the

PRG regime. They have obviously answered the question in the

negative, hence the need to apply the doctrine of state or civil