To Swear or Not to Swear?: Britain, Southeast Asia and the Attempt to Reform the Judicial Committee of the Privy Council, 1964–1971

Abstract

ABSTRACT This article seeks to explore the British government’s perception of the role of the Judicial Committee of the Privy Council as a method of strengthening cohesion amongst the Commonwealth community, and in particular delves into the constitutional and diplomatic challenges that the British government faced in its attempt to utilise the Judicial Committee in order to maintain close ties with its former Southeast Asian colonies in the 1960s. Suggestions were made by the Foreign and Commonwealth Office and the Privy Council Office from the mid-1960s that newly-independent republics such as Singapore and Malaysia should be allowed to send its citizens to London as members of the Judicial Committee in order to dilute the prejudice against the Committee as a remnant of colonial rule. However, the proposals were rejected by the Lord Chancellor’s Office on the grounds that Asian judges were of insufficient calibre to sit as members of the Judicial Committee, and that citizens of republics were unable to swear an oath of loyalty to the British monarch as was required for all Privy Counsellors. The Privy Council Office were of the opinion that a new system could be introduced whereby the Judicial Committee member would not have to be a fully-fledged Privy Counsellor and therefore would not have to swear the oath, while the Commonwealth Secretariat put forward its argument that Asian judges were good enough to ensure standards of the Judicial Committee would not be lowered. However, the Lord Chancellor’s Office argued that such non-Privy Counsellors would only be ‘second-class’ constituents of the Judicial Committee whose rulings would be unacceptable to countries such as Australia and instead proposed the creation of a Commonwealth Court of Appeal which the Foreign Office deemed unrealistic. In the end, no judges from the Asian republics were allowed sit on the Judicial Committee, resulting in Malaysia and Singapore abolishing their appeals to the Judicial Committee in 1984 and 1994 respectively.