BILLS OF RIGHTS AND DECOLONIZATION: THE EMERGENCE OF DOMESTIC HUMAN RIGHTS INSTRUMENTS IN BRITAIN'S OVERSEAS TERRITORIES by CHARLES O.H. PARKINSON
| Published date | 01 December 2008 |
| Author | YASH GHAI |
| Date | 01 December 2008 |
| DOI | http://doi.org/10.1111/j.1467-6478.2008.00450_5.x |
BILLS OF RIGHTS AND DECOLONIZATION: THE EMERGENCE OF
DOMESTIC HUMAN RIGHTS INSTRUMENTS IN BRITAIN'S OVERSEAS
TERRITORIES by CHARLES O.H. PARKINSON
(Oxford: Oxford University Press, 2007, xiii and 299 pp., £60.00)
Charles Parkinson sets out to answer an intriguing question. With its
characteristic dislike of a bill of rights, why did Britain in the period of
decolonization confer, or sometimes impose, bills of rights in the indepen-
dence constitutions of its possessions? Britain had resolutely objected to a
bill of rights in India; a bill of rights could only be enacted after indepen-
dence. Professor Stanley de Smith explained the subsequent inclusion of bills
of rights as a response to the demands of minorities in colonies about to
become independent, and Professor Brian Simpson as British desire to
continue the protection of the European Convention on Human Rights in a
different form. Parkinson is not persuaded by either and went on a search to
answer his question by mining the archives of the Colonial Office, which had
presided over the negotiation and drafting of these constitutions. He supple-
ments this with a few interviews and rather sparse use of scholarly literature.
His is an interesting story, which starts essentially in 1950s with the
termination of colonial rule in the Sudan and ends with Kenya's indepen-
dence in 1963 (leaving out British possessions in the South Pacific, although
by this time the new orthodoxy of rights prevailed in Britain). His timescale
also leaves out Hong Kong, which is a pity for there is a fascinating tale to
recount (of politics and rights), not of independence but handover to China.
Parkinson examines negotiations on the independence constitutions of
nine colonies and the abortive federation of the British West Indies ± on the
basis of which he draws a series of interesting generalizations. He is fully
justified in claiming that he has produced a `more nuanced understanding
about why colonial bills of rights began to appear in the late 1950s'. He
attributes the changes in the British attitude to two motives: achieving the
transfer of power without violence (presumably by calming the fears of
minorities) and the creation of a viable, long-term civil society that protected
human rights. He is largely right on the first point, not so on the second, for
which his book provides little evidence ± indeed, it provides much contrary
evidence (as in numerous colonial office memos).
There is no doubt that the British position was entirely opportunistic. No
colonial constitution contained a bill of rights ± that would be inconsistent
with the oppressive and discriminatory structure of colonial rule. Parkinson
notes this omission but does not link the fact to the nature of imperial rule.
Britain deviated from its central tenet that no bill of rights would be
introduced during colonial rule in a handful of cases where, for its own
reasons, it wanted to ensure a bill of rights after independence. Enactment at
an earlier stage, shortly before independence, would carry a bill of rights into
independence without much discussion. When Britain did press for, or
respond to demands for, a bill of rights, it wanted sufficient powers for the
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ß2008 The Author. Journal Compilation ß2008 Cardiff University Law School
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