Kelsen in the 'grenada court': revolutionary legality revisited

• Author: Simeon C.R. Mcintosh
• Position: Professor of Law, Emeritus, Howard University, Washington, D.C; Reader in Jurisprudence, Faculty of Law, University of the West Indies, Cave Hill Campus, Barbados
• Pages: 1-80

KELSEN IN THE 'GRENADA COURT'':

REVOLUTIONARY LEGALITY REVISITED

SIMEON C.R. McINTOSH*

Introduction

This Commemorative Issue of the Caribbean Law Review, marking

the outstanding contributions of Mr. Justice N.J.O. Liverpool to the

intellectual life of the Commonwealth Caribbean, presents as auspicious

an occasion as any to revisit the question of 'revolutionary legality',

given Justice Liverpool's seminal role in the decision in

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 People'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

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

constitutional court2 which, in the wake of the coup d'etat, was said

to have "departed" Grenada and established head offices in St. 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-

Professor of Law, Emeritus, Howard University, Washington, D.C.;

Reader in Jurisprudence, Faculty of Law, University of the West Indies,

Cave Hill Campus, Barbados.

1 Mitchell and Ors. v. DPP and Anor [1968] L.R.C. (Const.)- 35.

2 This Court was then known as the West Indian Supreme Court.

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 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

3 See judgment of Haynes P. in Mitchell and Ors. [1968] L.R.C. (Const.)

35.

4 Simeon C.R. Mcintosh, "Legitimacy, Validity and the Doctrine of

Necessity: The Case of Andy Mitchell and Others Considered," 10 West

Indian Law Journal 127 (1986); Simeon C.R. Mcintosh, "Continuity and

Discontinuity of Law: A Reply to John Finnis," 21 Conn. L. Rev. 1

(1988).

In addition, I had published several pieces in the local press- the

Grenadian Voice, the Barbados Advocate, the Daily Nation, and the

Jamaican Gleaner.

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 dejure government of 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.4a 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 dejure government of 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 all 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 necessity to accord

"temporary" validity to the Court. I do not propose to revisit their

arguments in detail. Suffice it to say that one of my fundamental

disagreements with the Court turned on the conceptualization of that

question. The Court obviously thought that the question of its own

validity was a legal question within its competence to decide. I, on the

contrary, thought that the question was - (and always is) - a

fundamentally political, meta-legal issue that the Court had to confront

in order to determine the legal question of jurisdiction.

In sum, then, Kelsen's theory of revolutionary legality and

discontinuity-of-law was highly relevant to the case, but was rejected

4a

See,

for example, Hinds v. R. [1976] 1 All E.R. 353