Mitchell and Others v Director of Public Prosecutions and Another
Court of Appeal of Grenada:
Haynes, P., Liverpool and Peterkin, JJ.A.
25th-28th, 29th March, 1st April,10th May, 14th-15th, 17th June 1985
Privy Council:
Facts
The appellants, who had been charged with murder and were awaiting the High Court
of Grenada, had applied to the High Court challenging competence to hear the charge
essentially on the ground that that Co part of the Supreme Court established by
People's Law No.4 of the People’s Revolutionary Government, the regime that had
been in control of Grenada from 1979 to 1983. People's Law No.1 of the same regime
had suspended the Constitution of Grenada, People's Law No.4 had repealed the West
Indies Associated States Supreme Court Order 1967 which established the Supreme
Court of Grenada and had created a new Supreme Court, People's Law No. 14 vested
the new Supreme Court with the jurisdiction and powers of the previous Court and
People's Law No.84 abolished appeals to the Judicial Committee of the Privy Council.
Subsequent to the overthrow of the regime, the Governor-General, taking the view
that a state of emergency existed, issued a series of proclamations designed to restore
law and order pending re-establishment of Parliament. Under Proclamation 3 several
of the revolutionary regime's laws were continued in force, including People’s Law
No.4.
Held
(2) The issue as to whether de jure recognition was to be given to a revolutionary
regime was a matter of municipal law in the State in question, and not international
law. (See pp.51 and 115 post.)
Per Haynes, P.: Recognition at international law rests on political discretion based on
the reaction of a foreign state to a new regime. Legitimacy under municipal law is
different. (See p.51 post.)
The conditions for recognition de jure were (a) the revolution was successful, there
being no other rival; (b) its rule was effective; (c) the conformity and obedience of the
populace was not mere tacit submission due to coercion or fear of force; (d) it must
not appear that the regime was oppressive and undemocratic.
Applying these principles to the case before it, while conditions (a) and (b) would
appear to he met, the Court had not had sufficient evidence put before it to enable it to
conclude whether conditions (c) and (d) were met and, therefore, could not decide
whether de jure recognition should be given. (See pp. 73-74 and 118 post.)
(3) The doctrine of necessity should be adopted as a constitutional source of
validation of unconstitutional acts and legislation and on this basis the actions and
People's Laws of the revolutionary regime and Proclamations of the Governor-
General were validated
In Madzimbamuto v Lardner-Burke, as we have read, Lord Reid had observed rightly
that the law had to take account of the fact that there are many regimes which are
universally recognised as lawful but which derive their origins from revolutions from
revolutions or coups d'etat. The crucial question was, not if such a regime can ever
become legitimate, but how and at what stage this will be. For legal theories must
often accommodate their concepts to the facts of political life. It would be unrealistic
to insist on such rigid constitutionalism as would categorise a successful revolution
with its concomitant legal changes as setting up a regime that must remain
unconstitutional and illegitimate as long as it lasts and however effective its
government is.
As a result I would hold that for a revolutionary government to achieve de jure status,
that is, to become internally a legal and legitimate Government, the following
conditions should exist: (a) the revolution was successful, in that (p. 72) the
Government was firmly established administratively, there being no other rival one;
(b) its rule was effective, in that the people by and large were behaving in conformity
with and obeying its mandates; (c) such conformity and obedience was due to popular
acceptance and support and was not mere tacit submission to coercion or fear of force;
and (d) it must not appear that the regime was oppressive and undemocratic.
A revolutionary regime should not be accorded legitimacy by this Court unless it is
satisfied that, on the whole, the regime had the people behind it and with it. Legality
should be achieved only if and when the people accept and approve for in them lies
political sovereignty and the Court so finds. This approval they may give ab initio or
subsequently. Length of time might or might not be sufficient to infer it. It might be
expressed or tacit approval. But it is that which should give legitimacy to a successful
and effective revolutionary regime. The support of a real majority is sufficient. This
could be shown by its majority vote at a general election or a referendum or a
majority percentage at polls. In Court it can be proved by agreed statements of fact (as
in Valabhaji) or by affidavits (as in Matovu). And these modes are not exhaustive. If a
Constitution was abrogated, a new one should be substituted forthwith as happened in
both of those cases.
Summary
Even though the regime held effective power for 4 ½ years the court saw insufficient
evidence of popular support to render it a de jure government. Remember what they
were faced with was a counter insurgency in which the GG was attempting to restore
the pre-revolutionary constitution.
