OCTOBER 2 — What are orders in council?

According to the UK Parliament, Orders in Council are made by the King (or formerly the Queen) acting on the advice of the Privy Council and are approved in person by the monarch.

Some Orders in Council are made using powers conferred by an Act of Parliament. Other Orders in Council are made by virtue of the royal prerogative.

Either way, because Parliament is supreme in the UK, Orders in Council are secondary, subordinate or delegated legislation unlike Acts of Parliament which are primary legislation.

According to Sir William Anson, in his celebrated book The Law and Custom of the Constitution, “an Order in Council is practically a resolution passed by the Queen in Council, communicated by publication or otherwise to those whom it may concern”, after which the learned author gave the following as an example of the wording of such an order:

At the Court at __________, the 10th day of February, 1891.

Present, —

The Queen’s most excellent Majesty in Council.

Her Majesty, by and with the advice of her Privy Council, doth order and it is hereby ordered.

(See Anson’s Law and Custom of the Constitution, (1896) Vol. II, 2nd ed., Chapter 1, p. 45)

Anson described the Privy Council as “essentially an executive”, and accordingly the Queen/King in Council issued orders of an executive nature in each of the following cases:

First, in accordance with custom and to give effect to the prerogatives of the Crown.

Second, in pursuance of an Act of Parliament, vesting the Queen/King in Council with authority to do a specific act.

In the first case, the jurisdiction of the Queen/King in Council is limited, as it could not be successfully claimed that the Queen/King in Council could legislate as Parliament is the legislative body of the land.

In the second case, the Queen/King in Council acts pursuant to parliamentary and statutory authority, and to the extent of the statutory authority Orders in Council have the force of law.

But in either case, according to American legal scholar James Brown Scott, “it would seem to be too clear for argument that an Order in Council, if it be considered a statute, is municipal; that if it be legislative it is domestic legislation, and while it may affect persons within British jurisdiction it cannot properly be extended, any more than a statute can properly be extended, beyond the jurisdiction of Great Britain so as to affect the rights of foreign countries, their subjects or citizens”. (See “British Orders in Council and International Law” The American Journal of International Law, Vol. 10, No. 3 (Jul., 1916), pp. 560-569)

Educated at Harvard and at the universities of Berlin, Paris, and Heidelberg (1894), Scott taught law at Columbia and Georgetown universities and was later dean of the law schools of the universities of Southern California and Illinois.

Scott cited an authority which distinctly negated the claim of any country to legislate for other than its own subjects or citizens, which claim, if allowed, “would violate the perfect equality of states upon which the society of nations is predicated and without which it could not exist”.

That authority is the case of The Antelope (10 Wheaton 66, 122), decided two centuries ago in 1825, where Chief Justice Marshall, speaking for the Supreme Court of the United States, said that “no one can rightfully impose a rule on another. Each legislates for itself, but its legislation can operate on itself alone”.

So here is the question of interest: do Orders in Council continue as law in the former British colonies?

The answer is they generally do not continue automatically as active law in former colonies after independence, unless they are explicitly adopted, saved, or re-enacted by the new nation’s own constitution or reception statutes.

That flows from what Orders in Council are — being secondary, subordinate or delegated legislation. Importantly, when a colony gained independence through British legislation (such as an Independence Act), the UK government and the Crown lost all legislative and executive authority over the territory.

Unless there are transitional clauses in the constitutions of the newly independent states that specify which pre-independence laws (common law, local statutes, and sometimes specific colonial orders) remain in force to prevent a legal vacuum.

Like the case was in Sarawak when the former British colony became independent as a state in the Federation of Malaysia in 1963.

Sarawak’s Interpretation Ordinance 1958 (Chapter 1), which the State Constitution declares as applying “for the purpose of interpreting [the] Constitution”, in its earliest edition, defined “written law” to include “all Ordinances and subsidiary legislation but does not include any Act of Parliament nor any Order in Council, Royal Charter or Royal Letters Patent nor any enactment which no authority in Sarawak is empowered to amend”.

(One may read Anson’s Law and Custom of the Constitution for what Royal Charter or Royal Letters Patent is.)

Amendments in 1995 expended the term to include —

(a) the Constitution of the State of Sarawak and subsidiary legislation made thereunder;

(b) all Ordinances enacted by the Legislature of Sarawak and any subsidiary legislation made thereunder and having legislative effect;

(c) Acts of Parliament of Malaysia and subsidiary legislation made thereunder which are in force in the State; and

(d) any legislative enactments or legislative instruments (including Acts of Parliament of the United Kingdom of Great Britain and Northern Ireland and Orders in Council and other subsidiary made thereunder) which are applicable to Sarawak.

The provision in (d) above is significant. It made those legislative enactments and instruments laws of Sarawak – but from 1995.

The 1958 Ordinance has since been repealed by the Interpretation Ordinance 2005 (Chapter 61) where Section 3 makes provisions, among others, for the following terms — 

“enactment” to mean “any provision, made by competent authority in the United Kingdom prior to Malaysia Day, or Sarawak, having the force of law in Sarawak”;

“Order in Council” to mean “an Order made by Her Britannic Majesty in Her Privy Council”;

Meanwhile, the definition of “written law” is retained.

The above demonstrates the importance of having explicit provisions to state which pre-independent laws, such as enactments, ordinances, regulations and Orders in Council, continue in force in the state.

* This is the personal opinion of the writers or publication and does not necessarily represent the views of Malay Mail.