Legitimacy, Validity and the Doctrine of Necessity: The Case of Andy Mitchell and Others Considered

• Author: Simeon C.R. McIntosh
• Profession: Professor of Jurisprudence and Dean, Faculty of Law, University of the West Indies at Cave Hill, Barbados
• Pages: 1-46

Legitimacy, Validity and the Doctrine of Necessity | 1

INTRODUCTION

On October 19, 1983, the Prime Minister of Grenada, Maurice

Bishop, and several other persons were killed. Nineteen persons,

including Hudson Austin and Bernard Coard, were charged with murder

and bound over for trial in the High Court of Grenada. In an application

to the High Court by way of an Originating Motion, the accused sought

several declarations, the sum total of which was a challenge to the

legal existence, constitutionality and validity of the High Court as

established by People’s Laws Nos. 4 and 14, under the People’s

Revolutionary Government (PRG) of Maurice Bishop.1 Specifically, their

claim was that the High Court was unconstitutionally established since

it was created in a manner contrary to the 1973 Constitution, for

People’s Laws 4 and 142 were null and void in that they were the

enactments of an illegal government and also constituted an

amendment of a deeply entrenched provision of the Constitution by

ordinary legislation.3 Therefore, they argued, the Court had no

jurisdiction to try them in that it continued to be an illegal,

unconstitutional court, for the Governor General had no power under

the Constitution or at all to legislate on any matters in respect of

which Parliament would have had no power to legislate under the

Constitution of Grenada.4 And Parliament had no power to amend a

deeply entrenched provision of the Constitution by way of ordinary

legislation. The applicants’ motion stood as a challenge to the

LEGITIMACY, VALIDITY AND THE DOCTRINE

OF NECESSITY : THE CASE OF ANDY MITCHELL

AND OTHERS CONSIDERED

1

2 | Kelsen in the Grenada Court

constitutionality of the then current Government’s Act No. 1 of 1985,5

confirming the validity of laws made during the period between March,

1979 and November, 1984. In so far as the Act of 1985 purports to

accord validity to People’s Laws 4 and 14, and the Governor General’s

later confirmation of those laws, it constitutes an indirect amendment

of a deeply entrenched provision of the Constitution by way of ordinary

legislation. In fine, the applicants meant to say that the only Court

which could legally have tried them was the High Court established

by the Courts Order of 1967, the Court in force in Grenada prior to

the coup d’état of March, 1979.

The motion was heard in the High Court by the Chief Justice, the

Honourable Sir Archibald Nedd, who ruled on November 19, 1984,

that the High Court was legal and valid and had jurisdiction to hear

and determine the indictments preferred against the accused. In an

exceptionally learned opinion, Sir Archibald addressed the question

of the legitimacy of the PRG regime but seemed to have equivocated

as to whether the PRG had in fact become a legitimate government

by the end of its four and a half year rule. But that notwithstanding,

His Lordship reasoned that in view of the fact that the pre-revolution

court, the West Indies Associated States Supreme Court, had ceased

to function in Grenada in the wake of the coup, then it was a matter

of public necessity that the PRG should have instituted its own system

of courts. Therefore, the enactment of People’s Laws Nos. 4 and 14,

establishing the High Court and the Court of Appeal, was validated

on the doctrine of necessity. Likewise, the Governor General’s

Proclamation, following the demise of the PRG in October 1983,

declaring that, among others, People’s Laws Nos. 4 and 14 shall

continue to be in force, stood justified on grounds of necessity.

The applicants then perfected an appeal of Sir Archibald’s ruling

to the Court of Appeal.6 Their appeal was heard by Sir J.O.F. Haynes,

President of the Court, and Justices Sir N.A. Peterkin and Dr. N.J.O.

Liverpool. The effect of the motion was a challenge to the validity of

the Court of Appeal itself, since, it, along with the High Court, was

established by People’s Laws 4 and 14, and later retained by the

Governor General.

Legitimacy, Validity and the Doctrine of Necessity | 3

On the question whether the PRG had ever become the lawful

government in Grenada during the four and a half years of its rule,

President Haynes held that he was unable to find that it did.7 But, on

the question of the validity of the High Court, His Lordship held that

the Court was temporarily valid on the doctrine of necessity, until

such time as the current elected Government were to take the

appropriate steps to bring back to Grenada the West Indies Associated

States Supreme Court, the Court of the 1973 Constitution.

Sir N.A. Peterkin voted to affirm Sir Archibald’s ruling, reasoning

that People’s Laws 4 and 14, and the proclamation of the Governor

General confirming those laws, were valid on the doctrine of necessity.

Justice Liverpool was also of the opinion that ‘the PRG was forced by

necessity to establish its own court system, since the court which

was recognized by the suspended Constitution had departed the

country and left Grenada without a Court’.8 In addition, Justice

Liverpool held that the PRG regime had ultimately acquired de jure

status and was therefore the lawful government of Grenada at the

time of its demise.

This essay renders a critique of the Justices’ opinions on the

question of the validity of the High Court (and the Court of Appeal),

and concludes that their Lordships, having largely misconceived the

jurisprudential issues raised by the applicants’ motion, and,

consequently, the relevance of the doctrine of necessity to the case,

delivered of themselves a deeply flawed decision.

LEGITIMACY AND REVOLUTIONARY LEGALITY

This section addresses the twin concepts of legitimacy and validity

and asks, under what circumstances might the fiats of a group of

people who have seized power from a previous government by brute

force, contrary to the Constitution of the State, come to be regarded

as laws binding upon the people of the territory.9 In short, this section

will address the question whether the PRG might correctly be regarded

to have been the legitimate and legally valid government of Grenada

for the four and a half years of its rule. This essay assumes an