Colonial Legislation Research Articles

On the Origins of Invalidation of British Colonial Legislation by Colonial Courts – the Van Diemen’s Land Dog Act Controversy of the 1840s – Part Two

ABSTRACT The first part of this paper examined the background to and conduct of a case called Symons v Morgan before the Supreme Court of Van Diemen’s Land. Symons appears to be the first case in which a colonial court asserted jurisdiction to invalidate a colonial ‘statute’ on the basis that the legislation concerned contravened the colony’s constitution. The Supreme Court claimed the jurisdiction as a matter of inference. There was no imperial or colonial legislation expressly granting such a power, nor any judicial authority – whether colonial or imperial in origin – supporting the Supreme Court’s conclusion. The second part of this paper analyses the responses of the colonial government to the Symons judgment, and consequently the responses of the imperial government and Parliament to those colonial initiatives. The actions of the imperial government and Parliament show acceptance of the principle that colonial courts could review the validity of colonial legislation.

On the Origins of Invalidation of British Colonial Legislation by Colonial Courts: The Van Diemen’s Land Dog Act Controversy of the 1840s – Part One

ABSTRACT By 1865 British Imperial governments had accepted that colonial courts had the authority to invalidate colonial statutes which contravened the relevant colony’s constitution. This situation arose notwithstanding the lack of any express grant of such jurisdiction to colonial courts in Imperial or colonial legislation. This paper evaluates the first instance of a colonial court asserting that jurisdiction, during the Dog Act crisis in Van Diemen’s Land (Tasmania) in the 1840s. Part one of the paper charts the background to, conduct of and judgment in the relevant litigation. The second part, which will appear in a future issue of this journal, explores the consequential attempts of the colony’s Governor to remove the judges from office and to re-enact the invalidated colonial law. The suggestion made is that the Dog Act controversy provides considerable insight into how, despite the absence of any explicit statutory grant of such jurisdiction, the power of judicial review of colonial legislation by colonial courts became established as an orthodox element of British colonial constitutional law in the latter nineteenth century.

Colonial legislations, intrinsic paradoxes: the criminal prohibition against bigamy and the exemption of Muslims in mandatory Palestine

ABSTRACT This article explores the criminal prohibition against bigamy during the British colonial rule of Palestine, drawing particular attention to the exemptions it afforded to Muslims. Through archival research, the article analyses the debates that led to the legislation of the 1936 Criminal Code Ordinance through three distinct lenses – political, religious, and gendered to circumspectly explore the inconsistencies of the British approach toward Bigamy. I reveal how mandatory legislators prohibited it as a matter of public and criminal law while creating a broad exemption of its stipulations by essentially relegating the matter to the less heavily regulated ‘private’ sphere. I argue that the exemption provided for Muslims on the bigamy prohibition demonstrates the complexity of colonial law and its intrinsic paradox manifested in outlawing bigamy while accommodating it. This paradox and inconsistencies in colonial legislation are in line with colonial policies toward native populations, reflecting British colonial perception and anxiety towards colonial subjects and themselves.

A Tribal Chief and a Colonial Legislation: The Excluded Areas Act of 1846

A Tribal Chief and a Colonial Legislation: The Excluded Areas Act of 1846

'Embarrasing and Even Ridiculous'

This paper examines the brief lifespan (1907–20) of ‘Two Act’ entrenchment, a curious constitutional law idea which emerged in Queensland in the early 1900s. Its origins lay in an argument formulated by Queensland’s then Chief Justice, Pope Cooper, qua defendant in criminal proceedings arising from his refusal to pay income tax on his judicial salary. That argument was that the Constitution Act 1867 (Qld) was a form of ‘fundamental’ or ‘organic’ law which could not be altered by legislation passed in the ordinary way, but which could be changed only by a Two Act legislative process in which the Legislature in Act 1 expressly empowered itself to alter the relevant provision and then in Act 2, again expressly, enacted the relevant alteration. The article considers how it was that an idea which had no textual basis in either Imperial or colonial legislation, for which there was no supportive judicial authority, and which had no precedent in Queensland’s legislative practice, was repeatedly upheld by Queensland’s Supreme Court and Australia’s High Court before being dismissed as wholly without merit by the Privy Council in McCawley v The King; but dismissed in terms which laid the foundation for the Privy Council’s subsequent approval of the proposition (in Trethowan v Attorney-General of New South Wales) that Australia’s State legislatures did indeed possess the legislative competence to enact judicially enforceable entrenchment devices to prevent certain laws being enacted through the ordinary lawmaking process.

Visions for Racial Equality: David Clement Scott and the Struggle for Justice in Nineteenth-Century Malawi by Harri Englund

Though he admits at the outset that writing this book “took me to archives and other sources unfamiliar to me from my previous research,” Englund crafts a masterfully interwoven biography of an often-neglected visionary in Malawi’s past (xiii). David Clement Scott emerges from this account as “a radical missionary” championing a “doctrine of humanity” encompassing Africans and Europeans in a single community rather than as merely the beleaguered late nineteenth-century head of the Church of Scotland’s Blantyre Mission depicted in many other historical accounts (110).1 Englund has assiduously embraced the historian’s task, taking great pains to locate scraps of Scott’s thought in letters and now little-read magazines—“Scott’s family had destroyed his personal papers”—scouring archives in Scotland, England, and Africa. He even visited collections of the Blantyre Synod of the Church of Central Africa, Presbyterian (ccap), in Malawi, which he found “in disrepair … [and] at varying stages of decay” (29, 265)Englund skillfully employs linguistic and theological analyses in offering a picture of Scott the man and, more importantly, his prescient perspective of “an interracial African future” capable of incorporating all drawn within its arms (151). Central to this interpretation is Scott’s insistence that Africa quickly taught him even more than he had to teach even his most precocious African converts, resulting in a “theology of reversals in an interracial African Church” (13). Englund structures this argument around more than just Scott’s effort to move toward a more inclusive social and political future in central Africa. He portrays Scott as engaged in an epic struggle—with both his Scottish supporters and a growing British colonial settler presence—to shape a fair and just intellectual framework for building such a society, a quest for “epistemic justice” (15). But in no sphere does this book do more to challenge the received wisdom of Malawi’s history than in the contrast that it presents between Scott and Alexander Hetherwick, his Blantyre Mission contemporary.The successor to Scott as head of the Blantyre Mission, Hetherwick is remembered most for his impassioned defense of Africans in the aftermath of John Chilembwe’s abortive liberation war in 1915, and for his subsequent service as an officially designated voice in behalf of Africans on Nyasaland’s colonial Legislative Council. Much more deliberately than previous writers, Englund carefully differentiates Hetherwick’s “paternalistic liberalism” from the clearly more compassionate view of African personhood that Scott held (249). “Nowhere in Hetherwick’s thought,” Englund insists, “were Europeans expected to learn as well as to teach, as in Scott’s vision” (259). Moreover, “Scott’s notion of the African Church consistently stressed its interracial composition,” whereas Hetherwick “added an exclusionary qualification to it—it was to become ‘the native African Church’” (245).Although Scott was condemned by the growing commercial settler interests in the formal British Protectorate—leading to his removal by his employers in the Church of Scotland—Hetherwick embraced that new colonial dispensation, even becoming one of the founders of the Blantyre Chamber of Commerce, “an organization for White planters and traders” (260). Successfully navigating the minefield of intellectual history, Englund carefully demonstrates how these differences created an epistemological chasm between the men. He quotes a frustrated Scott lamenting obliquely in the Mission’s newsletter shortly before his ouster that “nothing saps a man’s strength like prejudice” (196).Nothing in what Englund writes suggests that Hetherwick was a stalking horse for the extreme segregation prevalent in southern Africa a half-century later. This book insists, however, that “Hetherwick’s leadership erased any alternatives that Scott’s vision may have suggested” for a more egalitarian society in Central Africa (264). Nonetheless, as a methodological tour de force, Visions for Racial Equality exceeds in both scope and execution another intellectual biography, that of T. Cullen Young, another otherwise neglected Scottish missionary in central Africa.2 In so doing, Englund opens a much richer view to the history, and historiography, of Malawi.

:Disaffected: Emotion, Sedition, and Colonial Law in the Anglosphere

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Protected areas and Indigenous rights in Sápmi: an agonistic reading of conflict and collaboration in land use planning

ABSTRACT The recognition of Indigenous Peoples’ rights has sailed up as one of the most critical issues in land use planning, globally. In this paper, we use a recent planning process for a national park on traditional Sámi territory in northern Sweden to demonstrate how state officials engaged in everyday conservation planning are pivotal in navigating colonial legislation and promoting policy change on Indigenous rights. The analysis contributes, among other, to scholarly debates about the role of conflict in land use planning and the practices of frontline bureaucrats in natural resource governance. Our contribution demonstrates the value of an agonistic lens that attends to the constructive role of conflict in democratic change in pluralistic societies. This concerns both how state officials approach disagreement as well as the way contestation can create novel spaces to promote structural changes towards sustainability and justice. By not assuming collaboration but respectfully seeking it, the state officials succeeded in re-designing a collapsed process to help actors explore larger structural issues around Indigenous rights and government policy. In our agonistic reading, then, contestation should be perceived not as oppositional to the establishment of collaboration but as a necessary, and productive, part of inclusive land use planning.

Undignified Jurispathy: Muslim Family Law at Ghanaian Courts

Ghana has inherited colonial legislation that recognizes and regulates the consequences of Muslim family law (MFL). However, in practice, courts almost never recognize the normative existence of MFL and systematically dismiss the cases on procedural grounds without discussing their merits. What explains the judiciary’s attitudes toward Islamic law? Why do Ghanaian courts refuse to engage with MFL in substantive terms? How does this judicial policy affect Ghana’s pluri-legal system and its multireligious democracy? Drawing on Robert Cover’s insights and concepts from “Nomos and Narrative,” the present article suggests that Ghanaian courts engage in “undignified” jurispathy against Islamic law. Having inherited the colonial narrative that Islamic law is not a native law of the land, the judiciary destroys the legal meanings built around Islamic law without discussing what is at stake. This perpetuates normative tensions between the state and Muslim groups, undermines the rule of law, and erodes public trust in democratic institutions. Utilizing the theoretical and empirical insights drawn from the Ghanaian case, the article urges scholars to expand the scope of their inquiries to include instances of undignified jurispathy to better understand state-religion relations and constitutional debates in pluri-legal societies.

Shifting Authority: Indigenous Law-Making and State Governance.

How can Indigenous law-making affect state authority? I examine this in the context of Canada's extractive sector, where I question how and when Indigenous laws prevail over state laws to challenge colonial authority and reassert Indigenous self-determination. Although the state claims supreme authority, Indigenous governments are enacting their own laws, laws that are sometimes in tension with those of the state. I demonstrate that while the state usually responds to contentious Indigenous law-making with conflict, under certain conditions Indigenous communities can incite the state to reverse its position to one of acquiescence or cooperation. By drawing on insights from three Indigenous communities in Canada, I offer four conditions under which Indigenous peoples and governments may be able to compel the state to relent and accrue authority, including by preparing to engage in a long-term project, by fomenting community cohesion, by exploiting evolving international norms related to Indigenous rights, and by offering viable governance alternatives to colonial legislation. By highlighting new sites of authority and resistance, this work underscores the transformative possibilities of Indigenous politics. Une autorité en évolution : pouvoir législatif autochtone et gouvernance publique.

Our turn to acknowledge the rights of third gender &amp; Grant them their denied rights

Before starting with the article, the researcher wishes to express her thoughts relating to the title above. How does it feel to be punished for something which is not even our fault? In spite of living in a democratic nation where we are free to make choices of our life why there is a constant pressure upon us to live as per the terms and conditions of the society merely because of their constant habit of intruding and judging us on the basis of our sexual orientation and gender identity? Why do we have to hide our orientation and gender identity just because we have to fit into the stereotypical norms of the society? Section 377 of the Indian Penal Code, 1860 was a British colonial legislation in India which criminalizes homosexuality. Since ages, the members of LGBTQ community have been discriminated in the society and have been looked upon with shame, hatred and embarrassment by the members of the society and they have gone through what not because of their different sexual orientations and gender identity. In spite of the decriminalization of Section 377 in Navtej Singh Johar’s case in 2018 they are still facing discrimination on daily basis.

The Customs of Conquest: Legal Primitivism and British Paramountcy in Northeast India

The discourse around indigeneity, customary rights of possession and claims to political autonomy in Northeast India conventionally traces the postcolonial protectionist legislation for ‘tribes’ to various acts passed under the late colonial state, the most significant precursor being seen as the Government of India Act, 1935. This article will argue that one can in fact trace the ‘original moment’ in the idea of customary law for ‘tribes’ much further back in history, to the early decades of the nineteenth century. This historical moment was anchored in the beginnings of the East India Company’s conquest of the Garo hills in the late eighteenth and early nineteenth centuries, in the appropriation of the land and revenue of the Garos and in the ethnogenesis of the ‘hill Garo’. The article will explore the ways in which the beginning of the invention of customary law and traditional authority in Northeast India under East India Company rule was impelled by the Company’s demands for revenue and was shielded and secured by the deployment of military power across the hills. Over the course of the nineteenth century, the strategies of imperial control first introduced in the region were reproduced across the rest of Northeast India, underscoring the significance of the Garo hills as the first ‘laboratory’ of colonial rule in the region as well as sharpening our understanding of the character of the early colonial state. The article thus takes as its task the historicization of the categories of ‘customary law’, ‘traditional/indigenous authority’ and the ‘hill tribe’, all of which form the basis of late colonial and postcolonial legislation on the ‘tribe’.

The Persistence of Slavery: An Economic History of Child Trafficking in Nigeria by Robin Phylisia Chapdelaine

Reviewed by: The Persistence of Slavery: An Economic History of Child Trafficking in Nigeria by Robin Phylisia Chapdelaine Christine Whyte The Persistence of Slavery: An Economic History of Child Trafficking in Nigeria. By Robin Phylisia Chapdelaine. Amherst and Boston: University of Massachusetts Press, 2021. xiv + 238 pp. Cloth $ 90, paper $26.95. In this book, Robin Chapdelaine introduces a new conceptual framework—"the social economy of a child"—to help historians and others to understand how "children functioned as transmitters of wealth" (2–3). The book's introduction promises to detail "ongoing methods of appropriating children's bodies and their labor through the institutions of slavery, pawning, and child marriage" in the colonial period of the Bight of Biafra (2). While the focus is on the early twentieth century and the effects of British colonial rule, the first chapter sets the context in the last century of the transatlantic slave trade, using the biographies of two enslaved children, Olaudah Equiano and Peter Nicholls (27). This use of texts produced in adulthood to illuminate enslaved childhoods responds to Sánchez-Eppler's call to think through life-stage when working with slave narratives.1 This region was selected both because of the paucity of scholarship on childhood and because of the particular impact of colonial rule on politics and the economy. Colonial legislation deliberately excluded "canoe houses" (trading centers) from antislavery legislation in the early twentieth century, indirectly acknowledging the central role unfree labor played in systems of trade (37). Increasing integration into global commodity markets, exacerbated by a shift in agricultural production to the plantations of West Africa, especially for palm oil, increased labor demands (36). At the same time, new pressures of colonial rule, taxation, and the increasing corruption of provincial courts forced people to take desperate measures, including pawning their children to acquire cash. Governor-General Lugard's policies—which strengthened the powers of local courts—in tandem with the ballooning labor demands and the introduction of sterling and paper notes to replace the existing monetary system, [End Page 461] greatly increased slave-dealing in the southeastern region (57). Children were particularly vulnerable, as their parents and guardians "pawned" them to access cash to pay taxes and court fees. Pawning, once a relatively secure means of raising collateral, became increasingly risky, as pawned children were sold into slavery with relatively little hope for redress (59). The chapter on colonial policy brings out the ironies and contradictions between antislavery rhetoric and the realities of labor demands, building on and updating Lovejoy and Hogendorn's Slow Death for Slavery.2 The analysis of court case material is particularly compelling, offering both a broad view of the trends—widespread and frequent litigation over debts and contracts—and a microlens on individual cases, which show how debt, slavery, and child trafficking were intertwined (65–7). As well as the risk of being trafficked into slavery, pawned girls were sometimes retained as creditors' wives on nonpayment of a debt (80). This linkage between pawning, enslavement, and child marriage drew the attention of the successors of the Victorian prostitution abolition movement. Here the book combines the documentary evidence generated by various colonial enquiries into child pawning and marriage with oral history evidence collected in cooperation with Nigerian researchers. Discussion draws out some of the rituals and beliefs around pawning that reinforced the notion of it as a temporary state, from which parents or guardians would eventually redeem the children (95). The moral unacceptability of enslaving children, as opposed to pawning them, was emphasized by informants (97). This study of child trafficking launched from Chapdelaine's careful reading of the testimony taken after the 1929 Ogu Umunwaanyi (Women's War). In the accounts of Igbo women involved in the rebellion, the women highlighted threats to their children as a primary concern (109–10). It was these women who organized and orchestrated the revolt. The oral histories point to the initiative taken by the women, refuting prejudicial colonial notions that men must have played a leading role. Their testimonies provide rich detail on the hardships wrought by the imposition of direct taxation. Chapdelaine argues that the women of the 1929 Ogu Umunwaanyi were willing to fight...

Influence of Colonial Planning Legislation on Spatial Development in Zimbabwe and Zambia

Abstract Most African countries in the world currently face significant conflict on how colonial spatial planning legislation governs contemporary spatial planning practices. Spatial development is...

A Goan reading of the cultural impact of the Colonial Act: Introducing intellectuals and periodic press through the Anglo-Lusitano of July 7, 1934

The Portuguese colonial legislation summarized in the segregating measures of the Colonial Act of 1930, the year that inaugurated Salazar's dictatorship in Portugal after the 1926 military coup, had unavoidable consequences. Our goal is to demonstrate the importance of this political measure through the journalistic production of the Goan intellectuality, that is, the political culture that arose from the clash between the defenders of the regime and those who advocated solutions of freedom and democracy in autonomy or independence. After a comprehensive Goan press survey, the choice of a special issue of O Anglo-Lusitano to present as historical foundation in this study was due to the fact that owing to its broad spectrum of cultural and political participation, it served as medium for ascertaining the existence of a crossroad of visions of the imperial whole, in the construction of intellectual networks of opposition and resistance, both from Goa and exile, enunciating the end of the Portuguese empire.

DECOLONISATION OF THE LAW CURRICULUM IN SOUTH AFRICA THROUGH THE PRISM OF A LIVED EXPERIENCE

The current educational system, with a specific focus on legal education, remains based on Eurocentric knowledge with only limited inclusion of African knowledge. The article examines the historical context and the negative impact of colonial legislation on the law curriculum. The biggest problem identified in the law curriculum is that most modules (delete contents) and programmes are not linked to African cultures, realities and do not seek to address or solve African problems. This article argues for the creation of an Afrocentric law curriculum and the development of sufficiently rigorous local knowledge that relates better to the needs of students and the challenges in South Africa, while at the same time contributing to global knowledge production. This will make schools of law produce lawyers who are skilled to solve the problems confronting African people from different cultures. This article proposes solutions on how to decolonise, Africanise and transform the law curriculum.

(In)visible Bodies: Re-Theorizing the Consumption of Bodies Through Divine Possession in Post-War Sri Lanka

This paper examines the ritual of divine possession in post-war Sri Lanka, specifically looking to how the act of divine possession involves a powerful articulation of women’s bodily agency. Drawing from historical sources such as colonial era journals, legislation, chronicles, political speeches, and news coverage, as well as my own field work, I trace how women’s bodies are often depicted as sites of the nation and are forcefully consumed, through constructions of gendered norms, forms of labor, and legislation for the continuance of that nation. I posit that divine possession engages in a (re)consumption of women’s bodies that works to counter the violence of the nation/state by making community trauma legible on the body itself.

Evolution of the criminal justice system in Bangladesh: colonial legacies, trends and issues

Bangladesh bears the legacy of a system from the British colonial rulers who gradually replaced the Mughal system of administration of justice which was mostly based on Islamic principles. Over the years, the criminal laws of Bangladesh have undergone numerous peripheral amendments. While making a pen picture of the evolution of Bangladesh’s criminal justice system, this paper argues that although enactment of colonial legislation has been considered a major achievement in terms of aligning the then prevalent criminal legislation with common law principles, it has now become necessary to make major changes and additions in its legal regime.

Colonial Copyright, Customs, and Port Cities: Material Histories and Intellectual Property

Abstract In the British Empire, much printed matter originated from outside the colony and was funneled through port cities, where customs checked the material to see that it was not pirated, obscene, or seditious. Customs and Excise hence became the section of the colonial state responsible for copyright. However, their task was not straightforward since officials faced a tangle of colonial, imperial, and international legislation. Unable to work out which law applied where, customs officials elaborated their own practices, which they generated from their daily routines. Any understanding of copyright hence requires a focus on the dockside politics of customs and how notions of copyright emerged from these practices. Taking southern Africa as a case study broadly representative of white settler colonies in the British Empire, the article explores the workings of customs and its implications for new interpretations of copyright.

Provincial autonomy, decolonization, war and nationalism: Fazlul Huq’s chief ministerial tenure, 1937–1943

ABSTRACTThe Government of India Act 1935, the colonial legislation that failed, has received relatively scant scholarly attention. By association, the best-known feature of the Act, a decade-long practice of provincial autonomy has fallen into disregard. Decolonization literature has studied the unravelling of the empire from the centre, overshadowing the significance of a narrative from the provinces. This article studies the working of provincial autonomy in Bengal between its start in 1937 to its first suspension in 1943. By focusing on the two tenures of Bengal’s first elected chief minister Fazlul Huq, now a forgotten figure, and the British Governors he worked with, it offers new ways of understanding how provincial decolonization was shaped by war and nationalism. It also demonstrates how between 1937 and 1943, imperial intent, colonial relations and techniques of governance underwent remarkable changes. The central argument is that the grant of provincial autonomy incapacitated the British to turn back the tide of events that eventually led to India’s decolonization.