Furthering Decolonization: Judicial Review of Colonial Criminal Law

by Maryam Kanna

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Abstract

Most of the world today was once colonized by a European power. Great Britain was one of the most prolific colonizers, with more than 412 million people under its rule at its height. As part of its colonial enterprise, Great Britain transplanted criminal laws into its colonies and territories, to varying degrees. Across many former Commonwealth colonies, the criminal codes implemented by the British were similar or even identical. Today, these colonial criminal codes remain largely intact in many former colonies. Some of these colonial criminal laws are notoriously used by modern postcolonial governments to infringe human rights and restrict constitutional freedoms. While these laws have sometimes been challenged in court, they are often upheld despite their troublesome impact.

These laws are colonial holdovers, persisting in modern, postcolonial societies despite their anachronistic and foreign origins. As formerly colonized states continue the process of decolonization, their courts should assess a law’s colonial origin when considering its validity under the native constitution. This Note contends that courts across the former British Empire can operationalize consideration of a law’s colonial origin as an element of formal judicial review through a means-end proportionality test. Through a discussion of two types of proportionality—sequential and nonsequential—and their application to sodomy and sedition laws in three former British colonies—Malaysia, Kenya, and briefly, India—this Note demonstrates how proportionality can equip constitutional courts to further the national process of decolonization and the pursuit of self-determination.

Furthering Decolonization: Judicial Review of Colonial Criminal Law

by Maryam Kanna

Click here for a PDF file of this article

Abstract

Most of the world today was once colonized by a European power. Great Britain was one of the most prolific colonizers, with more than 412 million people under its rule at its height. As part of its colonial enterprise, Great Britain transplanted criminal laws into its colonies and territories, to varying degrees. Across many former Commonwealth colonies, the criminal codes implemented by the British were similar or even identical. Today, these colonial criminal codes remain largely intact in many former colonies. Some of these colonial criminal laws are notoriously used by modern postcolonial governments to infringe human rights and restrict constitutional freedoms. While these laws have sometimes been challenged in court, they are often upheld despite their troublesome impact.

These laws are colonial holdovers, persisting in modern, postcolonial societies despite their anachronistic and foreign origins. As formerly colonized states continue the process of decolonization, their courts should assess a law’s colonial origin when considering its validity under the native constitution. This Note contends that courts across the former British Empire can operationalize consideration of a law’s colonial origin as an element of formal judicial review through a means-end proportionality test. Through a discussion of two types of proportionality—sequential and nonsequential—and their application to sodomy and sedition laws in three former British colonies—Malaysia, Kenya, and briefly, India—this Note demonstrates how proportionality can equip constitutional courts to further the national process of decolonization and the pursuit of self-determination.