Constitutional Confusion in the Cocos Islands: The Strange Deliverance of LIM Keng
| Author | G M Kelly |
| DOI | 10.1177/0067205X8301300302 |
| Published date | 01 September 1983 |
| Date | 01 September 1983 |
| Subject Matter | Article |
CONSTITUTIONAL CONFUSION IN THE
COCOS
ISLANDS: THE STRANGE DELIVERANCE
OF
LIM KENG
BYGMKELLY*
When,
in
1902, a murder was committed in the Cocos Islands and
a resident native
of
the Islands was brought to trial at Singapore, the
Supreme Court
of
the Straits Settlements ruled unexpectedly that it
had no jurisdiction.
That decision threw doubt upon the validity
of
Letters Patent
of
1886 which were to remain the constitutional foundation
of
British
rule in the Cocos until the transfer
of
sovereignty to Australia in 1957.
The doubt necessarily extended to matters
of
long-term practical
importance, including the special position in the Cocos held by the
Clunies-Ross family unti/1978.
This article considers the validity
of
those Letters
Patent-a
question
peremptorily closed off by British authorities in the aftermath
of
the
1902 affair. Fundamental doctrines
of
colonial law in relation to terri-
torial acquisition, and their application to British annexation
of
the
Cocos Islands, are examined. The continuing relevance
of
those
doctrines-eg
to the recent line
of
land rights cases in
Australia-is
incidentally pointed out.
The Letters Patent are also tested against the maxim omnia praesu-
muntur rite esse acta and in terms
of
evolving judicial acceptance
of
severance. For that purpose, illustration
of
legal principle is drawn
from Australian cases
as
from English law.
1
BACKGROUND
On
an imminent date in 1983, the tiny resident population of the Cocos
Islands will exercise
"an
act of free choice"
that
some of them may find
puzzling.
The
choice is to
be
independence, "free association" with
Australia,
or
full incorporation, in effect as citizens
of
the
Australian
Capital Territory. During a century and a half of
European
settlement,
the
constitutional record
of
the Cocos has been singular
and
lively-an
oddly
repeated quest, it might seem, for a proximate parent.
Following British settlement in 1827, the Imperial Government rebuffed
local clamour for annexation for
30
years. When annexation finally
took
place, the new colony's distant masters in
London
first dabbled with running
it themselves and then bestowed it successively on the Governors of Ceylon
and the Straits Settlements.
From
1903 the Cocos Islands were incorporated
in the Settlement
of
Singapore. During 1939-45 control went
back
to
Ceylon.
In
the
period immediately after, the Cocos formed
part
of
the
colony of Singapore.
* MA (Hons), LLB
(NZ);
Barrister and Solicitor of the High Court
of
New
Zealand, of the Supreme Court
of
the Australian Capital Territory, and
of
the High
Court
of
Australia. Commonwealth Attorney-General's Department, Canberra.
The
views expressed in this article are the personal views
of
the writer and not necessarily
those
of
the Department. The writer wishes
to
express his thanks
to
Mr
R J Linford
OBE, formerly Administrator
of
the Cocos Islands, both for bringing the
Lim
Keng
case and the issues raised by
it
to his attention, and for providing copies of the basic
documents. Thanks are also due to
Mr
W R Edeson
of
the Australian National
University for helpful comment
on
the article in draft.
229
230 Federal
Law
Review
[VOLUME
13
The prospect of independence for Singapore and Malaya, keen-eyed
Indonesian nationalism and gradual abdication of the British position in
eastern Asia next suggested uneasy possibilities, as did British reluctance to
maintain on the Islands an airfield and installations which had done
useful service during the Pacific War. In a time and region of transition,
Australia assessed the Cocos as valuable for civil aviation and more than
valuable for defence. In the result, Australia became the next parent. By
Order in Council under the Cocos Islands Act 1955
(UK)
and the Cocos
(Keeling) Islands Act 1955
(Cth),
sovereignty was transferred and the
Islands became a Territory of the Commonwealth of Australia
With the Territory went a complex legal
legacy-an
arcane inheritance
of majestic judicial doctrine; Letters Patent under the Great Seal; Royal
Instructions under the Sign Manual and Signet; Orders in Council; Imperial
Statutes; colonial legislation; local instruments. Was that foundation
solid? Were the effects of it all, except as expressly provided, extinguished?
In
conditions of Australian control, did any such question matter? More
than fifty years earlier, in the Supreme Court of the Straits Settlements, a
judgment since forgotten had already suggested a disturbing
answer-it
might.
2 R v
LIM
KENG
On
the evening of 20 October 1902, the idyllic tranquillity of a remote
Indian Ocean island was briefly shattered by the violent death of one Woo
Tong. The legal aftermath puzzled law officers of the Crown, provoked an
unusual and important judgment from the Supreme Court of the Straits
Settlements at Singapore, and provided much grist to the mill of colonial
law draftsmen. Beyond that flurry of activity, there was a more permanent
legacy of the affair-lingering doubt that the constitutional foundation of
the Cocos Islands might be scarcely more substantial than the fragile coral
substratum of a tiny atoll where, in the words of Charles Darwin, "the
ocean and the land seem struggling for mastery."1
Woo Tong, the evidence suggested, had perished by a felonious hand.
When suspicion fell unrelentingly on one Lim Keng, another resident of
the atoll with Malayan Chinese antecedents, it became evident that he ought
to stand trial. Since the crime of murder was not justiciable within the little
local settlement, the first question was to settle the forum.
Ample legal mechanism for the purpose appeared to be available. When
the Cocos
(or
Cocos~Keeling)
Islands had been annexed to the British
Crown by Captain Fremantle in March 1857, he had appointed the
proprietor, John George Clunies-Ross, as temporary superintendent.2 No
further administrative measures or demonstrations of metropolitan interest
followed. The atoll long remained, as it had been nearly from the time of
the original settlement in 1827, a closed-off family fiefdom.
1 Darwin visited the Islands for 10 days during April 1836 in the course of the
celebrated voyage
of
the Beagle. He collected many specimens of fauna and flora,
evolved a subsidence theory
of
atoll formation which was subsequently discarded, and
included a lively account
of
the Cocos in his widely-read book on the voyage.
See
Darwin, The Voyage
of
the Beagle (Everyman 1977 Reprint) 439.
2
See
below p 242.
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