Download UNIVERSITY OF THE WEST INDIES

UNIVERSITY OF THE WEST INDIES
FACULTY OF LAW
Law and Legal Systems (2005-2006)
Worksheet No. 5
The Administration of Justice
Case Notes
The jurisdiction of the Judicial Committee
of the Privy Council
A typical provision
Section 109 of the Constitution of Trinidad and
Tobago:
109. (1) An appeal shall lie from decisions of
the Court of Appeal to the Judicial Committee as
of right in the following cases:
(3) An appeal shall lie to the Judicial Committee
with the special leave of the Judicial Committee
from decisions of the Court of Appeal in any civil
or criminal matter in any case in which,
immediately before the date on which Trinidad
and Tobago became a Republic, an appeal could
have been brought with the special leave of tier
Majesty to Her Majesty in Council from such
decisions.
Section 108 provides:
(a) final decisions in civil proceedings where the
matter in dispute on the appeal to the Judicial
Committee is of the value of fifteen hundred
dollars or upwards or where the appeal involves
directly or indirectly a claim to or question
respecting property or a right of the value of
fifteen hundred dollars or upwards;
108. An appeal to the Court of Appeal shall be
as of right from decisions of the High Court in
the following, among other cases, that is to say:
(b) final decisions in proceedings for dissolution
or nullity of marriage;
(b) any order or decision given in exercise of
jurisdiction conferred on the High Court
section 14 (which relates to redress
contravention of the provisions for
protection of fundamental rights);
(c) final decisions in any civil, criminal or other
proceedings which involve a question as to the
interpretation of this Constitution; and
(d) except in eases falling under section 108(d),
any case referred to in that section;
(e) final decisions in disciplinary matters under
section 81(3) to (5) of the Supreme Court of
Judicature Act and under the Solicitors Act;
(f) such other cases as may be prescribed.
(2) An appeal shall lie from decisions of the
Court of Appeal to the Judicial Committee with
the leave of the Court of Appeal in the following
cases:
(a) decisions in any civil proceedings; where in
the opinion of the Court of Appeal the question
involved in the appeal is one that, by reason of
its great general or public importance or
otherwise ought to be submitted to the Judicial
Committee; and
(b) such other cases as may be prescribed.
(a) any order or decision in any civil or criminal
proceedings
on
questions
as
to
the
interpretation of this Constitution;
the
by
for
the
(c) any order or decision given in the
determination of any of the questions for the
determination of which a right of access to the
High Court is guaranteed by sections 4(a) and
5(1);
(d) any order or decision of the High Court
granting
or
refusing
leave
to
institute
proceedings for the determination of any
question referred to it under section 52 or
determining any such question (which relates to
the appointment, qualification, election or
membership of a Senator or a member of the
House of Representatives, as the case may be);
(e) any order or decision of a Court in the
exercise of its jurisdiction to punish for contempt
of court, including criminal contempt.
Appeal as
motion
of right
on a
constitutional
“There was a debate as to whether an appeal
lies as of right in the present case. Counsel for
the applicant contrasted the right of appeal
under article 104(1) to the Court of Appeal
against "final decisions of the Supreme Court"
with the right of appeal under article 104(2)
from "any decision given by the Court of Appeal
in any such case." That wording, he argued, was
wide enough to cover any decision whether final
or interlocutory.
Their Lordships reject that
literal interpretation. It would be unworkable
since it would involve an appeal as of right, for
example, on a decision to adjourn the
proceedings for further inquiries to be made. In
their Lordships' view article 104(2) contemplates
a decision determining a constitutional motion.
Farrington v The Queen [1996] 3 W.L.R. 177
The applicant was convicted of murder in the
Bahamas in 1992 and sentenced to death. His
appeal to the Court of Appeal of The Bahamas
was dismissed and the Judicial Committee of the
Privy Council dismissed his petition for special
leave to appeal against conviction. In March
1996 the applicant issued a motion for relief
under article 28 of the Constitution of The
Bahamas, claiming that delay in carrying out his
execution had contravened his fundamental
right to protection from inhuman and degrading
treatment guaranteed by article 17(1), and
sought an order staying his execution pending
determination of the constitutional motion. The
judge dismissed the application for a stay on the
ground that the applicant's motion was "plainly
and obviously bound to fail." The Court of
Appeal of The Bahamas, without making any
formal order dismissing the constitutional
motion, upheld the judge's refusal of a stay for
like reasons.
On behalf of the Attorney-General it was
submitted that there is no right of appeal since
the decision of the Court of Appeal was
interlocutory in character. Counsel said that it
makes no relevant difference whether the
consequence of the refusal of a stay may result
in the execution of the applicant.
Counsel
argued that the focus must be on the technical
character of the order made. And no formal
order
had
been
made
dismissing
the
constitutional motion. This is too formalistic an
approach to the interpretation of the provisions
of article 104(2).
It is well settled that
constitutional provisions must be generously
construed. And it is clear that both the judge
and the Court of Appeal ruled that the
constitutional motion was doomed to fail. At
both levels it was decided that there was
nothing to try on the constitutional motion.
Both courts treated the constitutional motion as
if it were struck out. In substance and effect the
constitutional motion was adversely determined
to the applicant.
On the question whether an appeal to the
Judicial Committee lay as of right under article
104(2) of the Constitution, and on the
applicant's petition for special leave to appeal as
a poor person: Held, granting special leave to appeal, that on
its true construction article 104(2) of the
Constitution provided that an appeal lay as of
right to the Judicial Committee from any
decision of the Court of Appeal of The Bahamas
heard pursuant to article 104(1) which had
determined a constitutional motion; that
notwithstanding that the orders refusing the
applicant a stay had been interlocutory in
character and there had not been any formal
order on the constitutional motion, in substance
and effect it had been adversely determined to
the applicant, and an appeal lay as of right
within article 104(2); and that, accordingly, the
applicant would be granted special leave to
appeal as a poor person.
It follows that there is an appeal as of right. If
the applicant were not a poor person he would
require no special leave. He is, however, a poor
person and accordingly seeks special leave to
appeal as such.
Having decided to grant special leave to the
applicant their Lordships propose to say nothing
about the merits or demerits of the appeal. On
the other hand, for the avoidance of doubt their
Lordships make clear that even in a case where
an appeal lies as of right their Lordships
consider that it would be inappropriate to grant
special leave to appeal as a poor person where it
is plain beyond rational argument that the
appeal is doomed to fail.”
Note: Section 104 (1)&(2) provides as follows:
An appeal to the Court of Appeal shall lie as of
right from final decisions of the Supreme Court
given in exercise of the jurisdiction conferred on
the Supreme Court by article 28 of this
Constitution (which relates to the enforcement
of fundamental rights and freedoms). (2) An
appeal shall lie as of right to the Judicial
Committee of Her Majesty's Privy Council or to
such other court as may be prescribed by
Parliament under article 105(3) of this
Constitution from any decision given by the
Court of Appeal in any such case.
Frater v The Queen [1981] 1 W.L.R. 1468
Per Lord Diplock, at pp. 1469-1470:
“Before departing from the matter their
Lordships desire to comment upon the grounds
upon which the appeal was brought to Her
Per Lord Keith, at pp. 179-180:
2
Majesty in Council apparently as of right under
section 110 (1) of the Constitution of Jamaica…..
of the Constitution, as distinct from its
application to a particular set of facts, and that
the applicant was not entitled to appeal as of
right. They relied on the observations of Lord
Diplock in Frater v. The Queen (Note) [1981] 1
W.L.R. 1468, 1470:
Section 20 (6) (a) of the Constitution reads:
"(6) Every person who is charged with a
criminal offence - (a) shall be informed as
soon as reasonably practicable, in a language
which he understands, of the nature of the
offence charged; ..."
"In Harrikissoon v. Attorney-General of
Trinidad and Tobago [1980] A.C. 265 this
Board had occasion to point out the danger of
allowing the value of the right to apply to the
High Court for redress for contravention of
his fundamental rights and freedoms which is
conferred upon the individual by section [14]
of the Constitution of Trinidad and Tobago . .
. to become debased by lack of vigilance on
the part of the courts to dispose summarily of
applications that are plainly frivolous or
vexatious or are otherwise an abuse of
process of the court. In their Lordships' view
similar vigilance should be observed to see
that claims made by appellants to be entitled
to appeal as of right under section 110(1)(c)
are not granted unless they do involve a
genuinely
disputable
question
of
interpretation of the Constitution and not one
which has merely been contrived for the
purpose of obtaining leave to appeal to Her
Majesty in Council as of right."
In their Lordships' view it cannot plausibly be
suggested that any question of interpretation of
the plain and simple words "informed ... of the
nature of the offence charged" in section 20 (6)
(a) arose in the instant case. The question that
did arise, or could have done if in the Court of
Appeal reliance had been placed upon this
constitutional provision (as does not appear to
have been the case), was the application of
these plain and simple words to the particular
facts of Mr. Frater's case. The information
required to be given to an accused by paragraph
(a) of section 20 (6) is in order to enable him to
exercise effectively his rights under the
immediately following paragraph (b) which
provides that he "shall be given adequate time
and facilities for the preparation of his defence."
In Harrikissoon v. Attorney-General of Trinidad
and Tobago [1980] A.C. 265 this Board had
occasion to point out the danger of allowing the
value of the right to apply to the High Court for
redress for contravention of his fundamental
rights and freedoms which is conferred upon the
individual by section 6 of the Constitution of
Trinidad and Tobago (of which the corresponding
section in the Constitution of Jamaica is section
25) to become debased by lack of vigilance on
the part of the courts to dispose summarily of
applications that are plainly frivolous or
vexatious or are otherwise an abuse of process
of the court. In their Lordships' view similar
vigilance should be observed to see that claims
made by appellants to be entitled to appeal as of
right under section 110 (1) (c) are not granted
unless they do involve a genuinely disputable
question of interpretation of the Constitution and
not one which has merely been contrived for the
purpose of obtaining leave to appeal to Her
Majesty in Council as of right.”
Alleyne-Forte
v
Attorney
General
Trinidad and Tobago [1998] 1 WLR 68
Had this been an appeal under section 109(1)(c)
(the equivalent of section 110(1)(c) of the
Jamaican Constitution) there might have been
force in this submission. This appeal, however,
was brought under section 109(1)(d) which, by
reference to section 108(b), provides for appeals
as of right from "any order or decision given in
exercise of the jurisdiction conferred on the High
Court by section 14 (which relates to redress for
contravention of the provisions for the
protection of fundamental rights)."
An appeal as of right, by definition, means that
the Court of Appeal has no discretion to
exercise. All that is required, but this is required,
is that the proposed appeal raises a genuinely
disputable issue in the prescribed category of
case; here, a claim under section 14 to redress
a contravention of a provision for the protection
of a fundamental right. Contrary to the
submission of Mr. Mendes, that principle is as
much applicable to an appeal under section
109(1)(d) as it is to an appeal under section
109(1)(c). It is unnecessary, however, for their
Lordships to express any opinion on the
application of that principle in this case: that is
not an issue which is before them.”
of
Per Lord Nicholls, at pp. 72-73:
“Their Lordships mention one further point.
Under section 109(1)(c) of the Constitution an
appeal lies as of right to the Judicial Committee
from final decisions of the Court of Appeal "in
any civil, criminal or other proceedings which
involve a question as to the interpretation of this
Constitution." In their written case the
respondents submitted that there was here no
genuinely disputable question of interpretation
Appeals on election petitions
Patterson v Solomon [1960] A.C. 579
By section 40 of the Trinidad and Tobago
(Constitution) Order in Council, 1950, as
amended
by
the
Trinidad
and
Tobago
(Constitution) (Amendment) Order in Council,
3
1956: "(1) All questions which may arise as to
the right of any person ... (ii) to be or remain an
elected member of the Legislative Council, shall
be referred to the Supreme Court of the Colony
..."
Per Viscount Simonds, at pp. 589-590:
“At once, upon the opening of the appeal,
counsel for the respondent took the objection
that no appeal lay to Her Majesty in Council
from the decision of the Supreme Court of the
colony in a matter affecting membership of the
Legislative Council and consequently affecting
also membership of the Executive Council and
the office of Minister. It was open to him to do
so notwithstanding that special leave to appeal
had been granted.
The appellant, a registered elector of Trinidad
and Tobago, sought an injunction to restrain the
respondent, who was an elected member of the
Legislative Council of the colony, a member of
the Executive Council and the Minister of
Education and Culture, from claiming to be or in
any way acting as the holder of those offices on
the ground that his seat in the Legislative
Council had become vacant under the provisions
of section 38 (3) (e) of the Order in Council of
1950, as amended, by reason of his having
become a party to a contract with the
government of the colony for and on account of
the public service:-
This objection can conveniently be examined
upon the footing that the appellant's claim had
been maintained in its entirety. Upon this
footing it appears to their Lordships that it must
be sustained. Adapting the words of Lord Cairns
L.C. in Tiþberge v. Laudry, they are of opinion
that, upon a fair construction of the Order in
Council, it does not provide for the decision by
the Supreme Court of mere ordinary civil rights,
but creates an entirely new jurisdiction in a
particular court of the colony for the purpose of
taking out of the Legislative Council with its own
consent and vesting in that court the very
peculiar jurisdiction which had existed in the
Council itself of determining the status of those
who claim to be members of the Council. If so, it
follows that the determination of that court is
final and that from it no appeal lies. Nor does
this rest on the validity of the assumption that
apart from section 40 of the Order in Council the
question could be determined by the Council
itself. In De Silva v. Attorney-General it was
made clear that the same principle applies
whether or not the jurisdiction vested in the
particular court had previously been exercised
by the legislative body. As was said in that case
the dispute is one which "concerns the rights
and privileges of a legislative assembly, and,
whether that assembly assumes to decide such
a dispute or it is submitted to the determination
of a tribunal established for that purpose, the
subject-matter is such that the determination
must be final, demanding immediate action by
the proper executive authority and admitting no
appeal to His Majesty in Council." It is therefore
unnecessary to consider whether, apart from the
Order in Council, the Legislative Council could
itself have determined such a dispute. It is
sufficient that the dispute is of such a character
that the decision of the court to which it is
referred must be final. To this effect also is the
decision of this Board in Senanayake v.
Navaratne.
If, as their Lordships hold, an appeal would not
lie from a determination of the Supreme Court
upon a reference under section 40 of the Order
in Council, equally it cannot lie from a
determination of that court upon the same
subject-matter otherwise than upon such a
reference. Their Lordships do not entertain any
doubt upon the correctness of the decision of
the Supreme Court that the appellant could not
Held, (1) that section 40 of the Order in Council
of 1950, as amended, contemplated a reference
to the Supreme Court by the Legislative Council
itself, and that the appellant could not
competently maintain the proceedings in any
form.
(2) That the appellant could not escape from the
consequences of that decision by dropping his
claim so far as it related to membership of the
Legislative and Executive Councils and confining
it to seeking to restrain the respondent from
acting as Minister of Education and Culture. The
respondent was, until the contrary was
competently determined, a member of the
Legislative and Executive Councils, and it was
only if he ceased to be such a member that he
could no longer hold the office of Minister to
which he had been appointed. Unless and until
the fact of disqualification had been established
in the only manner permissible, it was not
possible to argue its consequences.
(3) Further, even if upon a proper reference
under section 40 of the Order in Council the
Supreme Court had come to a determination,
whatever form it might take, no appeal would lie
to Her Majesty in Council. Equally an appeal
would not lie from a determination of that court
upon the same subject-matter otherwise than
upon such a reference.
The Order in Council created an entirely new
jurisdiction in a particular court of the colony for
the purpose of taking out of the Legislative
Council, with its own consent, and vesting in
that court the very peculiar jurisdiction which
had existed in the council itself of determining
the status of those who claimed to be members
of the council, and the determination of that
court was final and no appeal lay from it. The
same principle also applied whether or not the
jurisdiction vested in the particular court had
previously been exercised by the legislative
body.
4
competently maintain the proceedings in any
form. They only add that, if he could, no appeal
would lie. They find it unnecessary to add any
observations upon the somewhat cryptic words
in section 40 of the Order, "in accordance with
the provisions of any law in force in the Colony."
They cannot afford any assistance to the
appellant.”
In this statement of the general practice their
Lordships agree….. Mr. Dillet ought to be
permitted on appeal to shew, if he can, that on
the grounds stated in his thirteenth reason the
conviction was obtained in a manner so
unsatisfactory that the conviction alone ought
not to be conclusive as a ground for striking him
off the rolls.”
Appeal by special leave in criminal matters
Per Lord Watson, at p. 467:
Esnouf v The Attorney General of Jersey
[1883] 8 App.Cas. 304
“This appeal is brought by Abraham Mallory
Dillet, of the Inner Temple, barrister-at-law,
against a verdict returned by a jury, on the 6th
of September, 1884, finding him guilty of the
crime of perjury before William Anthony
Musgrave Sheriff, who was at that time Chief
Justice of the Supreme Court of British
Honduras; and also against a consequential
order of the Chief Justice, dated the 27th of
March, 1885, directing the appellant to be struck
off the list of practitioners of that Court. Such
appeals are of rare occurrence; because the rule
has been repeatedly laid down, and has been
invariably followed, that Her Majesty will not
review or interfere with the course of criminal
proceedings, unless it is shewn that, by a
disregard of the forms of legal process, or by
some violation of the principles of natural
justice, or otherwise, substantial and grave
injustice has been done.”
Per Lord Blackburn, at p. 308:
“There are strong grounds for saying it would
not be right to grant an appeal in a criminal case
in Jersey, but at the same time their Lordships
bear in mind what Baron Parke said at the end
of Ames' Case (1). After saying that the law as
to criminal appeals in Jersey had been brought
to their notice, he says: "We are disposed to say
that we ought not to have recommended Her
Majesty to have allowed the appeal, but we are
not disposed to say that we have not the power
so to have done, as Her Majesty is the head of
justice, and we are sitting here, not merely as a
judicial body, but as Privy Councillors, and the
matter of the former petition was referred to us
generally. But we are fully aware of the
difficulties which we should entail on ourselves if
we were to grant appeals in matters of criminal
prosecutions," and then he says that in that
particular case they certainly ought not to have
done it. Their Lordships now repeat that
cautious language. We do not say that in no
case whatever, even in an appeal from Jersey in
a criminal matter, would it be the duty of this
Board to advise Her Majesty to grant an appeal;
we do not say under what circumstances it
might be advisable so to advise Her Majesty, but
we do say, repeating the language of Baron
Parke used many years ago, that it should be
done
very
cautiously,
and
after
great
consideration.”
The Privy Council and local conditions
Lange v Atkinson Privy Council Appeal no 71
of 1998
See case notes on Worksheet No. 2
Basdeo Panday v Kenneth Gordon [2005]
UKPC 36
The Respondent, Kenneth Gordon, sued the
Appellant, Basdeo Panday, the former Prime
Minister, in defamation for words spoken in an
address delivered at Chandernagore from a
prepared text. The address lasted about ten
minutes. The theme of the address was the
need for national unity. The material part was
as follows:
In re Abraham Dillet [1887] 12 App.Cas 459
Per Lord Blackburn, at p 466:
“As you join me in this crusade for national
unity you will meet many people who do not
want national unity. They are the ones who
in the past have benefited and thrived on
maintaining division of our society. I call
them the pseudo racists.
“In Falkland Islands Co. v. The Queen (1), it is
said, "it may be assumed that the Queen has
authority by virtue of her prerogative to review
the decisions of all colonial Courts, whether the
proceedings be of a civil or criminal character,
unless Her Majesty has parted with such
authority. But the inconvenience of entertaining
such appeals in cases of a strictly criminal
nature is so great, the obstruction which it
would offer to the administration of justice in the
colonies is so obvious, that it is very rarely that
applications to this Board similar to the present
have been attended by success."
I call them the pseudo racists because they
are not real racists. Real racists are people
who look after their race. These fellas use
race only to look after they self. They are
pseudo racists. So I say the pseudo racists
who have divided the society to maintain the
political power. And even now they are doing
so in the hope of political survival. The Ken
Gordons
who
want
to
maintain
his
5
monopolistic advantage over his competitors
in the media.
in the eyes of the public be condemned for his
practice of racism”. The Chief Justice took a
more robust approach.
But that is not a
sufficient reason for their Lordships’ Board to
depart from the views of the majority and the
trial judge. How words of this character would
be understood, and what effect such words
would have on those who heard them, are
matters on which local courts are far better
placed than their Lordships.”
My brothers and sisters, they come in many
shapes and sizes. They do not want change,
they continue to resist national unity. We
pass laws to deal with criminals, they
condemn us. We sign an agreement with the
Americans to deal with drug lords, they
condemn us. ... We try to change URP, they
accuse us of racism. If someone gets fired
from a state enterprise because ... he is
corrupt, they scream.
They doh want
change, they want to continue in their old
ways.”
And at paras 28-30:
“Damages
28.
Dr Ramsahoye SC submitted that the
damages, even as reduced by the Court of
Appeal, were excessive. Even as reduced this
was one of the highest awards of damages ever
made in Trinidad and Tobago in a libel action.
But, he asked rhetorically, for what was such a
large award made? There was no allegation of
bribery or corruption. There was no evidence of
pecuniary loss.
There was no evidence of
psychiatric injury.
There was no claim for
special damage. Hamel-Smith JA observed that
the evidence does not reveal that Mr Gordon
remained anything other than a successful
businessman, highly respected throughout the
Caribbean in the media field.
The trial judge held that the ordinary listener
would have concluded that in his address the
Prime Minister was calling Mr Gordon a pseudoracist who used racism to maintain division in
society and in order to maintain a commercial
advantage over his competitors in the media
business. The judge held this was defamatory
and that these words were spoken of Mr Gordon
in the conduct of his media business. So the
slander was actionable without proof of special
damage. He awarded damages in the sum of
$600,000.00.
The majority of the Court of Appeal upheld the
trial judges decision on liability but varied his
award of damages to $300,000.00. The Chief
Justice, in dissent, was of the view that the
words of which Mr Gordon complained were not
defamatory.
The ordinary reader would not
think Mr Gordon fell within the Prime Minister’s
definition of pseudo-racist. Even if he did that
would not lower Mr Gordon in the eyes of rightthinking members of society in Trinidad and
Tobago where “racial slurs are accepted as
commonplace”.
29.
Attractively though these submissions
were presented and elaborated their Lordships
are not persuaded. The seriousness of a libel
and the quantification of an award are matters
where judges with knowledge of local conditions
are much better placed than their Lordships’
Board. Thus Hamel-Smith JA noted that awards
in Trinidad and Tobago have tended to be on the
conservative side over the years, probably
because defamation actions have not been as
prolific as in other jurisdictions. However times
have changed. The press, he noted, no longer
exhibit the restraint normally associated with
responsible journalism. So, he said, it is of little
surprise that in 1989 in Frank Solomon v
Trinidad Publishing Co Ltd (unreported) Civ App
125 of 1987 the Court of Appeal of Trinidad and
Tobago decided to “raise the bar”.
The Privy Council upheld the decision of the
Court of Appeal.
Per Lord Nicholls, at para 10:
“The submission made on behalf of Mr Panday
was that on these points the Chief Justice’s
approach was to be preferred. Their Lordships
are unable to agree. On ground (2) the trial
judge’s view of how the words would have been
understood by an ordinary listener, set out
above, was not challenged before their
Lordships, and rightly so.
Whether words
bearing that meaning, and uttered in the context
in which they were said, would tend to lower Mr
Gordon in the estimation of right-thinking
members of society is a question of fact. On
that question of fact there are concurrent
findings of the trial judge and the majority of the
Court of Appeal in favour of Mr Gordon. Warner
JA recognised that “in this society there is a
tendency to exaggerate”, but she held that the
attack on Mr Gordon “went far beyond that
which is acceptable in any contemporary
society”. Hamel-Smith JA said that a racist “will
30.
For their part their Lordships can detect
no indication that when reducing the trial
judge’s award in the present case and
substituting the amount of $300,000 the
majority of the Court of Appeal misdirected
themselves. Hamel-Smith JA said he had “no
doubt whatsoever that [Mr Gordon’s] feelings
were seriously injured and his reputation
tarnished to some extent”.
He noted that
whatever loss Mr Gordon may have experienced
“would have been cushioned by the outpouring
of support he received from the media,... [in
Trinidad and Tobago] and abroad”. The injury
to his reputation was not irreparable. The trial
judge’s award was at the higher end of the
scale.
An award of $300,000 was more
appropriate and fair to compensate Mr Gordon
6
and vindicate his reputation, bearing in mind
that the latter objective had already largely been
achieved. Their Lordships consider this was a
balanced summary of the position.”
The liberal
Council
jurisprudence
of
the
individual and subsection (5) (d) in its context
was a clear recognition of the unity of the family
as a group and acceptance that children should
not be separated from a group which belonged
to Bermuda, "child" in the subsection was not to
be restricted in its meaning and the mother and
her husband were entitled to a declaration that
the children were deemed to belong to
Bermuda.
Privy
Minister of Home Affairs v Fisher [1980] A.C.
319
Per Lord Wilberforce, at pp. 328-329:
Section 11 of the Constitution of Bermuda
provides:
“We are concerned with a Constitution, brought
into force certainly by Act of Parliament, the
Bermuda Constitution Act 1967 United Kingdom,
but established by a self-contained document
set out in Schedule 2 to the Bermuda
Constitution Order 1968 (United Kingdom S.I.
1968 No. 182). It can be seen that this
instrument has certain special characteristics. 1.
It is, particularly in Chapter I, drafted in a broad
and ample style which lays down principles of
width and generality. 2. Chapter I is headed
"Protection of Fundamental Rights and Freedoms
of the Individual." It is known that this chapter.
as similar portions of other constitutional
instruments drafted in the post-colonial period,
starting with the Constitution of Nigeria, and
including the Constitutions of most Caribbean
territories, was greatly influenced by the
European Convention for the Protection of
Human Rights and Fundamental Freedoms
(1953) (Cmd. 8969). That Convention was
signed and ratified by the United Kingdom and
applied to dependent territories including
Bermuda. It was in turn influenced by the United
Nations' Universal Declaration of Human Rights
of 1948. These antecedents, and the form of
Chapter
I
itself,
call
for
a
generous
interpretation avoiding what has been called
"the austerity of tabulated legalism," suitable to
give to individuals the full measure of the
fundamental rights and freedoms referred to. 3.
Section 11 of the Constitution forms part of
Chapter I. It is thus to "have effect for the
purpose of affording protection to the aforesaid
rights and freedoms" subject only to such
limitations contained in it "being limitations
designed to ensure that the enjoyment of the
said rights and freedoms by any individual does
not prejudice... the public interest."
"(5) For the purposes of this section, a
person shall be deemed to belong to
Bermuda if that person - (a) possesses
Bermudian status;... (c) is the wife of a
person to whom either of the foregoing
paragraphs of this subsection applies not
living apart from such person...; or (d) is
under the age of 18 years and is the child,
stepchild or child adopted in a manner
recognised by law of a person to whom any
of the foregoing paragraphs of this subsection
applies."
The Jamaican mother of four illegitimate children
all born in Jamaica married a Bermudian in
1972. The mother and the children took up
residence with the husband in Bermuda in 1975.
At all material times the children were under 18.
In 1976 the Minister of Labour and Immigration
ordered the children to leave Bermuda. The
mother and her husband applied to the Supreme
Court to quash the order and for a declaration
that the children were to be deemed to belong
to Bermuda The Supreme Court refused a
declaration on the ground that the children were
illegitimate.
On appeal by the mother and her husband
Court of Appeal held by a majority that
children were to be deemed to belong
Bermuda by virtue of section 11 (5) (d) of
Constitution.
the
the
to
the
On appeal by the Minister of Home Affairs
(formerly
the
Minister
of
Labour
and
Immigration) and the Minister of Education: Held, (1) that a constitutional instrument should
not necessarily be construed in the manner and
according to the rules which applied to Acts of
Parliament and, therefore the presumption
applicable to statutes concerning property,
succession and citizenship that "child" meant
"legitimate child" did not apply;
When therefore it becomes necessary to
interpret "the subsequent provisions of" Chapter
I - in this case section 11 - the question must
inevitably be asked whether the appellants'
premise, fundamental to their argument, that
these provisions are to be construed in the
manner and according to the rules which apply
to Acts of Parliament, is sound. In their
Lordships' view there are two possible answers
to this. The first would be to say that,
recognising the status of the Constitution as, in
effect, an Act of Parliament, there is room for
interpreting it with less rigidity, and greater
generosity, than other Acts, such as those which
(2) That, although the manner of interpretation
of a constitutional instrument should give effect
to the language used, recognition should also be
given to the character and origins of the
instrument; that, since section 11 of the
Constitution was one of the sections dealing with
the fundamental rights and freedoms of an
7
are concerned with property, or succession. or
citizenship. On the particular question this would
require the court to accept as a starting point
the general presumption that "child" means
"legitimate child" but to recognise that this
presumption may be more easily displaced. The
second would be more radical: it would be to
treat a constitutional instrument such as this as
sui
generis,
calling
for
principles
of
interpretation of its own, suitable to its character
as already described, without necessary
acceptance of all the presumptions that are
relevant to legislation of private law.
right of the individual to equality before the
law and the protection of the law..."
Section 2 provided:
"Subject to the provisions of sections 3, 4
and 5 of this Constitution, no law shall
abrogate, abridge or infringe or authorise the
abrogation, abridgement or infringement of
any of the rights and freedoms hereinbefore
recognised and declared and in particular no
Act of Parliament shall - ... (c) deprive a
person who has been arrested or detained...
(ii) of the right to retain and instruct without
delay a legal adviser of his own choice and to
hold communication with him..."
It is possible that, as regards the question now
for decision, either method would lead to the
same result. But their Lordships prefer the
second. This is in no way to say that there are
no rules of law which should apply to the
interpretation of a Constitution. A Constitution is
a legal instrument giving rise, amongst other
things,
to
individual
rights
capable
of
enforcement in a court of law. Respect must be
paid to the language which has been used and
to the traditions and usages which have given
meaning to that language. It is quite consistent
with this, and with the recognition that rules of
interpretation may apply, to take as a point of
departure for the process of interpretation a
recognition of the character and origin of the
instrument, and to be guided by the principle of
giving full recognition and effect to those
fundamental rights and freedoms with a
statement of which the Constitution commences.
In their Lordships' opinion this must mean
approaching the question what is meant by
"child" with an open mind. Prima facie, the
stated rights and freedoms are those of "every
person in Bermuda." This generality underlies
the whole of Chapter I which, by contrast with
the Bermuda Immigration and Protection Act
1956, contains no reference to legitimacy, or
illegitimacy, anywhere in its provisions. When
one is considering the permissible limitations
upon those rights in the public interest. the right
question to ask is whether there is any reason to
suppose that in this context, exceptionally,
matters of birth, in the particular society of
which Bermuda consists, are regarded as
relevant.”
Section 3 (1) provided:
"Sections 1 and 2 of this Constitution shall
not apply in relation to any law that is in
force in Trinidad and Tobago at the
commencement of this Constitution."
Section 6 provided:
"(i) For the removal of doubts it is hereby
declared that if any person alleges that any of
the provisions of the foregoing sections or
section of this Constitution has been or is
being, or is likely to be contravened in
relation to him, then... that person may apply
to the High Court for redress..."
After a shooting incident, the appellant was
arrested and taken to a police station. Several
requests were made for him to be given the
opportunity of communicating with his lawyer
but these requests were initially refused. The
only reason for the refusal was that the police
thought that if the appellant were advised of his
right not to reply to their questions, they would
be less likely to obtain confessions from him as
to previous crimes which it was suspected that
he had committed. It was three days after his
arrest and after an identity parade that the
appellant was permitted to communicate with
the lawyer. The appellant applied to the High
Court under section 6 of the Constitution for,
inter alia, a declaration that the refusal by the
police to allow him to retain, instruct and consult
with a legal adviser of his own choice was a
contravention of his constitutional right to do so.
The Attorney-General and the police officers
were made respondents to the application. It
was accepted that at the commencement of the
Constitution there was no written enactment
conferring the right to consult a lawyer on a
person who had been lawfully detained but, in
1965, the judges of Trinidad and Tobago
adopted the English Judges' Rules of 1964
including Appendix A. The appellant was granted
a declaration in the High Court that his
constitutional rights had been infringed but the
respondents' appeal to the Court of Appeal of
Trinidad and Tobago was allowed.
Thornhill v Attorney General of Trinidad
and Tobago [1981] A.C. 61
Section 1 of the Constitution of Trinidad and
Tobago of 1962 provided:
"It is hereby recognised and declared that in
Trinidad and Tobago there have existed and
shall continue to exist... the following human
rights and fundamental freedoms, namely,
(a) the right of the individual to life, liberty,
security of the person and enjoyment of
property, and the right not to be deprived
thereof except by due process of law; (b) the
8
opinion that since a police officer was not in his
view a legislator nor a member of the judiciary
nor an agent or member of the executive,
section 6 of the Constitution did not operate to
give to the appellant any right to apply to the
High Court for redress for any contravention of
his constitutional rights by a police officer. This
was the only ground on which Rees J.A. allowed
the appeal.
On appeal by the appellant to the Judicial
Committee: Held, allowing the appeal, (1) that section 2 (c)
(ii) of the Constitution of 1962 secured the right
of a detained person to access to a lawyer
without delay, independently of any rights
enjoyed under the law at the commencement of
the Construction.
Their Lordships do not find it necessary to
consider to what extent (if any), despite the
provisions of the Constitution relating to the
police force and its officers, the Police Service
Act 1965 and the Crown Liability and
Proceedings Act 1966, the old common law rule
that those persons who at various times in
English legal history have been responsible for
appointing a "constable" were not vicariously
responsible for tortious acts done by him in
purported exercise of his common law powers of
arrest has survived in Trinidad and Tobago as
respects tortious acts which do not involve any
contravention of section 1 of the Constitution of
1962. It is beyond question, however, that a
police officer in carrying out his duties in relation
to the maintenance of order, the detection and
apprehension of offenders and the bringing of
them before a judicial authority is acting as a
public officer carrying out an essential executive
function of any sovereign state - the
maintenance of law and order or, to use the
expression
originally
used
in
England,
"preserving the King's peace." It is also beyond
question that in performing these functions
police officers are endowed with coercive powers
by the common law, even apart from any
statute. Contraventions by the police of any of
the human rights or fundamental freedoms of
the individual that are recognised by Chapter I
of the Constitution thus fall squarely within what
has since been held by the Judicial Committee in
Maharaj v. Attorney-General of Trinidad and
Tobago (No. 2) [1979] A.C. 385, 396, to be the
ambit of the protection afforded by section 6,
viz. contraventions "by the state or by some
other public authority endowed by law with
coercive powers." In this context "public
authority" must be understood as embracing
local as well as central authorities and including
any individual officer who exercises executive
functions of a public nature. Indeed, the very
nature of the executive functions which it is the
duty of police officers to perform is likely in
practice to involve the commonest risk of
contravention of an individual's rights under
section 1 (a) and (b), through overzealousness
in carrying out those duties.
(2) That in section 1 of the Constitution the
rights declared to have been enjoyed in Trinidad
and Tobago referred not only to de jure rights of
the individual but to rights enjoyed by him de
facto as a result of settled executive policy or
the manner in which administrative or judicial
discretion had been exercised; that, since
Appendix A to the Judges' Rules specifically
declared that the rules did not affect the
principle that an individual should be able to
consult his lawyer at every stage of an
investigation, the action of the judges of
Trinidad and Tobago in adopting Appendix A
showed that the right to consult a lawyer had
become a matter of settled practice and,
accordingly, the appellant's right was protected
under section 1 as well as under section 2 (c)
(ii).
(3) That section 3 in effect ensured that neither
section 1 nor section 2 repealed any rule of law
applicable in the country at the commencement
of the Constitution; that, accordingly, the onus
lay on the respondents to show that the settled
practice of allowing an arrested person to
consult a lawyer in accordance with the principle
expressed in the Judges' Rules was contrary to
the law at the time of the commencement of the
Constitution; that the respondents could not
discharge, and had not discharged, that burden;
and that, since there had been an unreasonable
delay before the appellant was allowed access to
his lawyer, his constitutional right had been
contravened.
Per curiam. Contraventions by the police of any
of the human rights or fundamental freedoms of
the individual that are recognised by Chapter 1
of the Constitution fall squarely within what has
been held by the Judicial Committee in Maharaj
v. Attorney-General of Trinidad and Tobago (No.
2) [1979] A.C. 385, 396, to be the ambit of the
protection
afforded
by
section
6,
viz.,
contraventions "by the state or by some other
public authority endowed by law with coercive
powers."
Per Lord Diplock, at pp. 73-74:
Their Lordships do not doubt that if the appeal
had come before the Court of Appeal after the
judgment of the Judicial Committee in Maharaj
instead of before, neither Rees J.A. nor either of
the other members of the Court (Hyatali C.J.
and Corbin J.A.) who expressed their agreement
with his judgment would have adopted, as a
“Rees J.A., although he considered that the
conduct of the respondents might well have
been a contravention of the appellant's
constitutional rights under section 1 (a) or
section 1 (b), found it unnecessary to make a
positive finding on that point, as he was of
9
ground for allowing the appeal, that section 6 of
the
Constitution
had
no application
to
contraventions of human rights or fundamental
freedoms by the police.”
followed; that, in any event, the procedure
prescribed in paragraph 8(b) had become a
settled practice followed before the Constitution
of 1976 came into operation, and so it was part
of the protection of the law afforded to the
individual under section 4(b) of the Constitution;
and that, therefore, on the proper construction
of section 5(2)(h) of the Constitution and on the
basis of a settled practice, a person arrested or
detained had a constitutional right to be
informed of his right to communicate with a
legal adviser as soon as possible and before
interrogation; that, further, it was the duty of
police officers to ensure his understanding of his
right, and the mere display of notices in the
police station was insufficient.
Attorney General of Trinidad and Tobago v
Whiteman [1991] 2 A.C. 240
By paragraph 8(a) of the English Judges' Rules
1964, adopted by the judges in Trinidad and
Tobago in 1965, a person in custody was to be
allowed to communicate with his legal adviser,
and paragraph 8(b) provided that persons in
custody should be informed orally of the rights
and facilities available to them and that notices
describing them should be displayed at police
stations and drawn to their attention. Section 4
of the Constitution of the Republic of Trinidad
and Tobago 1976 recognised and declared
fundamental rights and freedoms including the
right of the individual to the protection of the
law. Section 5(2) provided that Parliament might
not:
Per Lord Keith, at pp. 247-248:
“The language of a Constitution falls to be
construed, not in a narrow and legalistic way,
but broadly and purposively, so as to give effect
to its spirit, and this is particularly true of those
provisions which are concerned with the
protection of human rights. In this case the right
conferred by section 5(2)(c)(ii) upon a person
who has been arrested and detained, namely
the right to communicate with a legal adviser, is
capable in some situations of being of little value
if the person is not informed of the right. Many
persons might be quite ignorant that they had
this constitutional right or, if they did know,
might in the circumstances of their arrest be too
confused to bring it to mind. Section 5(2)(h) is
properly to be regarded as intended to deal with
that kind of situation as well as other kinds of
situation where some different constitutional
rights might otherwise be at risk of not being
given effect and protection. There are no
grounds for giving a restricted meaning to the
words "procedural provisions." A procedure is a
way of going about things, and a provision is
something which lays down what that way is to
be. Given that there are some situations where
the right to communicate with a legal adviser
will not be effective if no provision exists for
some procedure to be followed with a view to
dealing with these situations, there is a clear
necessity that such provision should be made.
So section 5(2)(h) gives a right to such
provision. Their Lordships further consider that,
by necessary implication, there is a right to have
the procedure followed through. A procedure
which exists only on paper, and is not put into
practice, does not give practical protection.”
"(c) deprive a person who has been arrested
or detained . . . (ii) of the right to retain and
instruct without delay a legal adviser of his
own choice and to hold communication with
him . . . (h) deprive a person of the right to
such procedural provisions as are necessary
for the purpose of giving effect and protection
to the aforesaid rights and freedoms."
The applicant was arrested by police officers and
detained, but he was eventually released
without charge. He applied to the High Court for
redress by way of originating motion pursuant to
section 14(1) of the Constitution alleging, inter
alia, that while in custody he had not been
informed of his right to communicate with a
lawyer. It was agreed that the judge should first
decide whether a person upon arrest or
detention by the police had a constitutional right
to be informed of his constitutional right to
retain and instruct without delay a legal adviser
of his own choice and to hold communication
with him. The judge dismissed the motion
holding that there was no such constitutional
right, but the Court of Appeal reversed that
decision.
On appeal by the Attorney-General and the
Commissioner of Police to the
Judicial
Committee:Held, dismissing the appeal, that section
5(2)(c)(ii) of the Constitution conferred on a
person arrested or detained the right to
communicate with a legal adviser but, since that
right
would
be
ineffective
in
certain
circumstances unless there was provision for a
procedure whereby he was informed of it,
section 5(2)(h) gave him the right to a
procedural provision such as that provided by
paragraph 8(b) of Appendix B to the Judges'
Rules 1964 and the right to have that procedure
Maharaj v Attorney General of Trinidad and
Tobago (No. 2) [1979] A.C. 385
On April 17, 1975, the appellant, a barrister
engaged in a case in the High Court, was
committed to prison for seven days for contempt
on the order of the judge. The appellant
immediately applied ex parte by notice of
motion to the High Court under section 6 of the
Constitution naming the Attorney-General as
10
respondent
and
claiming
redress
for
contravention of his right, protected by section 1
(a) of the Constitution, not to be deprived of his
liberty save by due process of law. On July 23,
1975, Scott J. dismissed the motion and ordered
the appellant to serve his term of imprisonment.
After serving the term the appellant appealed
from the decision of Scott J. to the Court of
Appeal. While that appeal was pending he
obtained leave to appeal to the Judicial
Committee of the Privy Council against the
committal order of April 17. On July 27, 1976,
the Judicial Committee quashed the order on the
grounds that there had been a fundamental
failure of natural justice in that before making
the order the judge had not told the appellant
plainly enough what he had done to enable him
to explain or excuse his conduct. On April 29,
1977, the Court of Appeal by a majority
dismissed the appellant's appeal from Scott J.'s
decision of July 23, 1975, on the ground that the
failure of the judge to specify the nature of the
contempt did not contravene a right protected
by section 1 of the Constitution.
On the appellant's
Committee:-
appeal
to
the
although the claim was not a claim in private
law for damages for tort, but was a claim in
public law for compensation, that compensation
should be measured in terms of the deprivation
of liberty, including consequential loss of
earnings and recompense for the inconvenience
and distress suffered during detention.
Judgment of the Court of Appeal of Trinidad and
Tobago reversed.
Liyanage v The Queen [1967] 1 A.C. 259
The Criminal Law (Special Provisions) Act, No. 1
of 1962, passed by the Parliament of Ceylon on
March
16,
1962,
contained
substantial
modifications of the Criminal Procedure Code,
inter alia, by purporting to legalise ex post facto
the detention for 60 days of any persons
suspected of having committed an offence
against the State, by widening the class of
offences for which trial without a jury by three
judges nominated by the Minister of Justice
could be ordered, by allowing arrest without a
warrant for waging war against the Queen and
prescribing new minimum penalties for that
offence and for conspiring to wage war against
the Queen and overawe the government by
criminal force, and by widening the scope of that
offence. The Act also provided for the admission
in evidence of certain confessions and
statements to the police inadmissible under the
Evidence Code.
Judicial
Held, allowing the appeal (by a majority), (1)
that section 6 (2) (a) of the Constitution gave
the High Court original jurisdiction to determine
any application by a person who alleged that
there had been a contravention of the human
rights and fundamental freedoms to which he
was entitled under section 1 (a); accordingly the
High Court had jurisdiction to inquire whether
the procedure adopted before the appellant was
committed to prison for contempt constituted a
contravention of his rights under section 1 (a).
The Act was expressed to be retrospective to
cover an abortive coup d'etat on January 27,
1962, in which the appellants took part, and was
to cease to be operative after the conclusion of
all legal proceedings connected with or
incidental to any offence against the state
committed on or about the date of the coup or
from one year after the date of the
commencement of the Act, whichever was later.
(2) That Chapter 1 of the Constitution protected
the rights of individuals against infringement by
the state or a public authority of the rights
declared by section 1 which were in existence
before the Constitution came into force and that
section 3 did not legitimise any infringement of
those rights regarded by pre-existing law as
unlawful; that, accordingly, since the committal
order of April 17, 1975, was in breach of the
common law which had previously governed
contempt of court in that it was contrary to
natural justice because the appellant had not
been given an opportunity to answer the charge
against him, there had been a contravention of
the appellant's rights under the Constitution by
depriving him of his liberty without due process
of law for which he was entitled to redress under
section 6.
The Criminal Law Act, No. 31 of 1962,
substituted the Chief Justice for the Minister of
Justice as the person to nominate the three
judges before whom trial without a jury might
be ordered, but left unaffected other provisions
of the former Act, including those above
summarised.
In April, 1965, the Supreme Court of Ceylon,
consisting of three judges nominated by the
Chief Justice, convicted the appellants of (1)
conspiring to wage war against the Queen; (2)
conspiring to overawe, by means of criminal
force or the show of criminal force, the
Government of Ceylon; and (3) conspiring to
overthrow otherwise than by lawful means the
Government of Ceylon by law established, and
sentenced them to ten years' rigorous
imprisonment and forfeiture of all goods, the
minimum prescribed by the Act No. 1 of 1962.
(3) That section 6 of the Constitution was
intended to create a new remedy for the
contravention of constitutional rights without
reference to existing remedies; that the word
"redress" in its context bore its ordinary
meaning of reparation or compensation,
including monetary compensation; and that
11
On appeal to the Privy Council on the ground
that the legislation of 1962 was ultra vires
not an absolute right in that it was not
necessary for an adjournment always to be
granted in order to ensure that any defendant in
a
criminal
matter
who
desired
legal
representation was duly represented; that in
exercising his discretion whether or not to grant
an adjournment for that purpose the judge had
to consider other relevant matters including the
present and future availability of witnesses, and
since the absence of legal representation was
caused by the conduct of the defendant's
counsel and also by the defendant's failure to
ensure that they were paid within a reasonable
time before trial or otherwise to apply in
advance for legal aid, the judge's refusal to
adjourn the trial to enable the defendant to
instruct an alternative legal representative did
not deprive the defendant of his fundamental
right under section 20(6)(c) of the Constitution
to be permitted to defend himself by a legal
representative of his own choice, even though as
a result he was unrepresented at his trial for a
capital
offence;
and
that,
in
all
the
circumstances, no miscarriage of justice had
occurred and the defendant had been properly
convicted of murder.
Held, that the Acts, directed as they were to the
trial of particular prisoners charged with
particular offences on a particular occasion,
involved a usurpation and infringement by the
legislature of judicial powers inconsistent with
the written Constitution of Ceylon, which, while
not in terms vesting judicial functions in the
judiciary, manifested an intention to secure in
the judiciary a freedom from political, legislative
and executive control and, in effect, left
untouched the judicial system established by the
Charter of Justice, 1833. The silence of the
Constitution as to the vesting of judicial power
was consistent with its remaining where it was
and inconsistent with any intention that it should
pass to or be shared by the executive or the
legislature. The Acts were accordingly ultra vires
and void, and the convictions could not stand.
The not so liberal jurisprudence of the Privy
Council
Robinson v The Queen [1985] A.C. 956
The defendant was arrested in August 1978 and
charged with murder. He did not apply for legal
aid. The main prosecution witness having
disappeared the case was adjourned on 19
occasions on six of which the trial date had been
fixed,
and
the
defendant
was
usually
represented by two counsel who were on the
record. In January 1981 the trial was definitely
fixed for a date in March with consent of the
defendant's counsel. When the trial began in the
Circuit Court Division of the Gun Court the
Crown's principal witness was present but the
defendant's counsel were absent. Inquiries
revealed that they intended to be there the
following day and the judge eventually started
the trial. The next morning one of the
defendant's counsel applied for permission for
them both to withdraw because they had not
been fully paid, and for an adjournment for a
legal aid assignment. The judge offered that
counsel the legal aid assignment but he declined
it. Both applications were refused by the judge
who feared that the witness might not be
available if the hearing was adjourned. The
defendant's counsel withdrew and the trial
continued without the defendant being legally
represented. He was convicted of murder and
sentenced to death. He applied to the Court of
Appeal of Jamaica for leave to appeal against
conviction and sentence but his applications
were refused.
On the defendant's
Committee:-
appeal
to
the
Decision of the Court of Appeal of Jamaica
affirmed.
Collymore v Attorney General of Trinidad
and Tobago [1970] A.C. 538
The appellants were in 1965 employees of an
oil company, and they, with other fellow
employees in the company, were members of a
registered trade union. This union bargained
on behalf of its members with the oil company
on questions of pay and conditions. In March,
1965, the union desired to alter the then
current collective agreement on these matters,
and submitted to the company a statement of
the changes required. Negotiations followed
but without any agreement resulting and, in
July, 1965, the company broke off the
negotiations by letter. In the ordinary way it
would have been expected that industrial
action would follow, but the union was unable
to take industrial action and call its members
out on strike for the purpose of enforcing their
demands because of the Industrial Stabilisation
Act, 1965, which had received the Royal
Assent on March 20, 1965. The Industrial
Stabilisation Act, 1965, imposed a system of
compulsory arbitration by an industrial court
set up under the Act for the settlement of
disputes, and prohibited any trade union
calling a strike in contravention of its
provisions. The appellants claimed that this Act
infringed their freedom of association, declared
by section 1 of the Constitution of Trinidad and
Tobago1 to be one of the fundamental
freedoms "which have existed and shall
continue to exist" and they relied on section 2
which provided that no law should "abrogate,
abridge or infringe ..." that right. They applied
Judicial
Held, dismissing the appeal (Lord Scarman and
Lord Edmund-Davies dissenting), that the right,
under the provisions of the Constitution of
Jamaica to legal representation of choice was
12
to the High Court of Justice of Trinidad and
Tobago for an order declaring that the
Industrial Stabilisation Act, 1965, was ultra
vires the Constitution of Trinidad and Tobago
and was null and void and of no effect. The
High Court dismissed the application and they
appealed to the Court of Appeal, who upheld
the decision of the High Court. On appeal to
the Privy Council:-
"right" to strike. The question does not really
arise if the respondent's contention as above
summarised is right: for if "freedom of
association" does not of itself import freedom to
bargain collectively and to do so effectively by
means of a strike, it is immaterial whether strike
action is or is not the exercise of a "right" or a
"freedom" or the enjoyment of "an immunity."
Since, however, the matter was exhaustively
canvassed in the courts below, their Lordships
may say that they are in substantial agreement
with the analysis of the situation which
emerged. It was agreed before their Lordships
that trade union law in Trinidad and Tobago was
the same as trade union law in Great Britain as
at the date when the Trade Disputes Act, 1906,
took effect. Neither before that date nor since
has there been in Great Britain any express
enactment by statute of any right to strike,
although in certain quarters such an enactment
is still advocated. At common law before the
enactment of the Trade Union Act, 1871, the
Conspiracy and Protection of Property Act, 1875,
and the amendment to section 3 thereof
effected by section 1 of the Trade Disputes Act,
1906, combinations of workmen to improve their
wages and conditions were certainly in peril if in
combination they withheld their labour or
threatened to do so: but (subject to certain
esoteric questions arising out of the decision in
Rookes v. Barnard [1964] A.C. 1129 and still
unresolved by the Trade Disputes Act, 1965) it
is now well recognised that by reason of the
statutes cited, as well as by decisions such as
Crofter Hand Woven Harris Tweed Co. Ltd. v.
Veitch [1942] A.C. 435 employees may lawfully
withhold their labour in combination free from
the restrictions and penalties which the common
law formerly imposed. In this sense there is
"freedom to strike."
Held, dismissing the appeal, that the Industrial
Stabilisation Act, 1965, undoubtedly abridged
the freedom to bargain collectively and the
freedom to strike, but these could not be
equated with the right of freedom of
association which was not left empty of
worthwhile content since numerous other
rights remained untouched.
Per Lord Donovan, at pp. 546-548:
“The appellants now claim that the Act is void
since it infringes their freedom of association
which section 1 of the Constitution declares has
existed "and shall continue to exist": and any
abrogation, abridgment or infringement of which
is forbidden by section 2, save in circumstances
which admittedly do not exist in the present
case.
The argument runs thus: "Freedom of
Association" must be construed in such a way
that it confers rights of substance and is not
merely an empty phrase. So far as trade unions
are concerned, the freedom means more than
the mere right of individuals to form them: it
embraces the right to pursue that object which
is the main raison d'Ûtre of trade unions,
namely, collective bargaining on behalf of its
members over wages and conditions of
employment. Collective bargaining in its turn is
ineffective unless backed by the right to strike in
the last resort. It is this which gives reality to
collective bargaining. Accordingly, to take away
or curtail the right to strike is in effect to
abrogate or abridge that freedom of association
which the Constitution confers.
There is no doubt that the freedom to bargain
collectively has been abridged by the Industrial
Stabilisation Act. Thus Part IV of the Act,
embodying sections 18-26, provides for the
making of "industrial agreements" between
trade unions and employers, subject to the
examination of the same by the Minister, who is
to submit the agreement to the industrial court
for registration, together with a notice
containing the ground of any objection to the
agreement which he has. The court then hears
and deals with such objection. It may register
the agreement without amendment: or with
agreed amendments: or it may refer the
agreement back to the parties for further
negotiation. The agreement takes effect only if it
is registered by the court.
The argument of the respondent is that
"freedom of association" in section 1 (j) of the
Constitution means no more than it says, that
persons are free to associate. It does not mean
that the purposes for which they associate, and
the objects which in association they pursue, are
sacrosanct under the Constitution and cannot be
altered or abridged save by the special
procedure provided by section 5.
The question thus posed is therefore simply a
question of construction. But the arguments
presented for the appellants, based on the
assertion that the right to free collective
bargaining and the right to strike are essential
elements in freedom of association in trade
unions, led to a prolonged examination in the
courts below as to whether there is in law any
There is also no doubt that the Act abridges the
freedom to strike. Indeed, in the case of the
essential services already mentioned it appears
to abrogate it altogether.
It makes no difference to the foregoing situation
that the Act in section 3 strengthens the position
13
of trade unions in relation to collective
bargaining by imposing on employers an
obligation to recognise and negotiate with a
union representing 51 per cent. or more of their
workers.
The
question
is
whether
the
abridgment of the rights of free collective
bargaining and of the freedom to strike are
abridgments of the right of freedom of
association.
which would restrict this right or impede the
lawful exercise thereof.
Article
4.
Workers'
and
employers'
organisations shall not be liable to be
dissolved or suspended by administrative
authority.
Article
5.
Workers'
and
employers'
organisations shall have the right to establish
and join federations and confederations and
any
such
organisation,
federation
or
confederation shall have the right to affiliate
with international organisations of workers
and employers."
Both courts below answered the question in the
negative; and did so by refusing to equate
freedom to associate with freedom to pursue
without restriction the objects of the association.
All these rights are left untouched by the
Industrial Stabilisation Act. It therefore seems to
their Lordships inaccurate to contend that the
abridgment of the right to free collective
bargaining and of the freedom to strike leaves
the assurance of "freedom of association" empty
of worthwhile content.
Wooding C.J. put the matter thus:
"In my judgment, then, freedom of
association means no more than freedom to
enter into con sensual arrangements to
promote the common interest objects of the
associating group. The objects may be any of
many. They may be religious or social,
political or philosophical, economic or
professional, educational or cultural, sporting
or charitable. But the freedom to associate
confers neither right nor licence for a course
of conduct or for the commission of acts
which in the view of Parliament are inimical
to the peace, order and good government of
the country."
Moreover, trade unions need more than
"freedom of association." They need to establish
an organisation. This involves setting up some
kind of headquarters, and appointing officers to
man it. Branches may also have to be set up
either in districts where the union has sufficient
members, or in particular plants or offices.
Arrangements must be made for the due
collection, usually weekly, of subscriptions.
Recognition by the employer must be obtained
as
a
prelude
to
collective
bargaining.
Arrangements have to be made for industrial
action in the event of collective bargaining
failing either wholly or partly. All this is
something over and above freedom of
association. It involves a union having freedom
also to organise and to bargain collectively: and
it is not surprising, therefore, to find this right
the subject of a separate Convention (No. 98) of
the International Labour Organisation.
It is, of course, true that the main purpose of
most trade unions of employees is the
improvement of wages and conditions. But these
are not the only purposes which trade unionists
as such pursue. They have, in addition, in many
cases objects which are social, benevolent,
charitable and political. The last named may be
at times of paramount importance since the
efforts of trade unions have more than once
succeeded in securing alterations in the law to
their advantage. It is also of interest to note
what the framers of convention 87 of the
International Labour Organisation considered to
be comprised in "Freedom of Association." Under
that subheading the convention articles 1-5
inclusive read as follows:
Their Lordships accordingly agree with the
courts below in their rejection of the appellants'
main argument.”
The
controversial
death
jurisprudence of the Privy Council
"Article 1. Each Member of the international
Labour
Organisation
for
which
this
Convention is in force undertakes to give
effect to the following provisions.
Article 2. Workers and employers, without
distinction whatsoever, shall have the right to
establish and, subject only to the rules of the
organisation concerned, to join organisations
of their own choosing without previous
authorisation.
Article 3. 1. Workers' and employers'
organisations shall have the right to draw up
their constitutions and rules, to elect their
representatives in full freedom, to organise
their administration and activities and to
formulate their programs. 2. The public
authorities shall refrain from any interference
penalty
Pratt v Attorney General of Jamaica [1994]
2 A.C. 1
The applicants were convicted of murder in
January 1979 and sentenced to death. They
immediately applied for leave to appeal but were
not granted legal aid until May 1980. In
December the Court of Appeal of Jamaica
dismissed their application for reasons to be
given later. The Governor-General failed to refer
their case to the Jamaican Privy Council for
advice on whether the applicants should be
executed or reprieved, in accordance with
sections 90 and 91 of the Constitution.1 The first
applicant
petitioned
the
Inter-American
Commission on Human Rights ("I.A.C.H.R.") in
14
1981, although the Jamaican Government was
not aware of that until 1983. In September
1984, following a request, the Court of Appeal
gave its reasons for dismissing the application
for leave to appeal. In October the I.A.C.H.R.
rejected the first applicant's submission but
recommended that the death sentence be
commuted. In January 1986 he petitioned the
United Nations Human Rights Committee
("U.N.H.R.C.") under the International Covenant
on Civil and Political Rights. The applicants
lodged notice of intention to petition for special
leave to appeal to the Judicial Committee of the
Privy Council in March, and special leave was
refused in July. In November the Jamaican Privy
Council considered the applicants' case for the
first time but did not accede to a request from
the U.N.H.R.C. for a stay of execution. A warrant
for the execution of the sentences passed on the
applicants was issued in February 1987. They
were transferred to special condemned cells
adjacent to the gallows, but the GovernorGeneral issued a stay of execution. In July the
I.A.C.H.R. informed the government that the
applicants had suffered a denial of justice and
requested that their sentences be commuted.
The Jamaican Privy Council reconsidered the
matter in October 1987 and in February 1988 a
second warrant of execution was issued. The
applicants were again transferred to the
condemned cells, but a stay was granted. In
March 1988 the U.N.H.R.C. decided that the
case was admissible, and in April 1989 held that
certain articles of the International Covenant
had
been
violated
and
recommended
commutation
of
the
sentences.
After
reconsideration by the Jamaican Privy Council in
September 1990 a third warrant of execution
was issued in February 1991, and they were
again moved to the condemned cells. They
applied to the Supreme Court for redress under
section 25 of the Constitution, and execution
was stayed. The Full Court of the Supreme
Court dismissed the application and the Court of
Appeal of Jamaica upheld that decision.
On the applicants'
Committee: -
appeal
to
the
capital punishment; that since the applications
for special leave to appeal to the Judicial
Committee and the petitions to the I.A.C.H.R.
and the U.N.H.R.C. could not be categorised as
frivolous the whole period of delay had to be
taken into account; and that, accordingly, since
to carry out executions after a delay of 14 years
would constitute inhuman punishment contrary
to section 17(1), the applicants' sentences
would be commuted to life imprisonment
pursuant to section 25.
Per curiam. (i) The aim should be to hear a
capital appeal in Jamaica within 12 months of
conviction, and the entire domestic appeal
process completed within two years. Although it
is reasonable to allow some period of delay for
appeals to the I.A.C.H.R. and U.N.H.R.C. it
should not be prolonged.
(ii) In any case in which execution is to take
place more than five years after sentence there
will be strong grounds for believing that the
delay is such as to constitute "inhuman or
degrading punishment or other treatment."
Decision of the Court of Appeal of Jamaica
reversed.
Per Lord Griffiths, at p. 17:
“The applicants, Earl Pratt and Ivan Morgan,
were arrested 16 years ago for a murder
committed on 6 October 1977 and have been
held in custody ever since. On 15 January 1979
they were convicted of murder and sentenced to
death. Since that date they have been in prison
in that part of St. Catherine's prison set aside to
hold prisoners under sentence of death and
commonly known as "death row." On three
occasions the death warrant has been read to
them and they have been removed to the
condemned cells immediately adjacent to the
gallows. The last occasion was in February 1991
for execution on 7 March; a stay was granted on
6 March consequent upon the commencement of
these proceedings. The statement of these bare
facts is sufficient to bring home to the mind of
any person of normal sensitivity and compassion
the agony of mind that these men must have
suffered as they have alternated between hope
and despair in the 14 years that they have been
in prison facing the gallows. It is unnecessary to
refer to the evidence describing the restrictive
conditions of imprisonment and the emotional
and psychological impact of this experience, for
it only reveals that which it is to be expected.
These men are not alone in their suffering for
there are now 23 prisoners in death row who
have been awaiting execution for more than 10
years and 82 prisoners who have been awaiting
execution for more than five years. It is against
this disturbing background that their Lordships
must
now
determine
this
constitutional
appeal….”
Judicial
Held, allowing the appeal, (1) that prior to
Jamaican independence the legality of a long
delayed execution could have been questioned
and, applying English common law, execution
stayed as an abuse of process; that section
17(2) of the Constitution merely authorised
descriptions of punishment which could be
imposed by the court and did not prevent the
circumstances in which the executive intended
to carry out the sentence from infringing section
17(1); that execution should follow as swiftly as
practicable after sentence of death, subject to
allowance of a reasonable time for appeal and
consideration of a reprieve, and an appellate
procedure that permitted prolonged delay, for
taking advantage of which no fault could be
attributed to a defendant, was incompatible with
15
And at pp. 29-36:
opportunity to save his life through use of the
appellate procedure. If the appellate procedure
enables the prisoner to prolong the appellate
hearings over a period of years, the fault is to be
attributed to the appellate system that permits
such delay and not to the prisoner who takes
advantage of it. Appellate procedures that echo
down the years are not compatible with capital
punishment. The death row phenomenon must
not become established as a part of our
jurisprudence.
“There is an instinctive revulsion against the
prospect of hanging a man after he has been
held under sentence of death for many years.
What gives rise to this instinctive revulsion? The
answer can only be our humanity; we regard it
as an inhuman act to keep a man facing the
agony of execution over a long extended period
of time. But before their Lordships condemn the
act of execution as "inhuman or degrading
punishment or other treatment" within the
meaning of section 17(1) there are a number of
factors that have to be balanced in weighing the
delay. If delay is due entirely to the fault of the
accused such as an escape from custody or
frivolous and time wasting resort to legal
procedures which amount to an abuse of process
the defendant cannot be allowed to take
advantage of that delay for to do so would be to
permit the defendant to use illegitimate means
to escape the punishment inflicted upon him in
the interest of protecting society against crime.
The application of the applicants to appeal to the
Judicial Committee of the Privy Council and their
petitions to the two human rights bodies do not
fall within the category of frivolous procedures
disentitling them to ask the Board to look at the
whole period of delay in this case. The total
period of delay is shocking and now amounts to
almost 14 years. It is double the time that the
European Court of Human Rights considered
would be an infringement of article 3 of the
European Convention for the Protection of
Human Rights and Fundamental Freedoms
(Cmd. 8969) and their Lordships can have no
doubt that an execution would now be an
infringement of section 17(1) of the Jamaican
Constitution.
A much more difficult question is whether the
delay occasioned by the legitimate resort of the
defendant to all available appellate procedures
should be taken into account, or whether it is
only delay that can be attributed to the
shortcomings of the state that should be taken
into account.
To execute these men now after holding them in
custody in an agony of suspense for so many
years would be inhuman punishment within the
meaning of section 17(1). In the last resort the
courts have to accept the responsibility of saying
whether the threshold has been passed in any
given case and there may be difficult borderline
decisions to be made. This, however, is not a
borderline case. The delay in this case is wholly
unacceptable and this appeal must be
allowed…...
There is a powerful argument that it cannot be
inhuman or degrading to allow a defendant
every opportunity to prolong his life by resort to
appellate procedures however extended may be
the eventual time between sentence and
execution.
This is the view that currently
prevails in some states in the United States of
America and has resulted in what has become
known as the "death row phenomenon" where
men are held under sentence of death for many
years while their lawyers pursue a multiplicity of
appellate procedures. Powerful statements in
support of this point of view appear in the
opinion of Circuit Judge O'Scannlain in Richmond
v. Lewis (1990) 948 F.2d 1473, a decision of the
United States Court of Appeals for the Ninth
Circuit, and in the judgment of La Forest J. in
Kindler v. Canada (Minister of Justice) (1991) 67
C.C.C. (3d) 1, a decision of the Supreme Court
of Canada. A further valuable analysis of the
decisions in the United States courts appears in
the judgment of the Supreme Court of
Zimbabwe in Catholic Commission for Justice
and Peace in Zimbabwe v. Attorney-General
(unreported), 24 June 1993, Judgment No. S.C.
73/93……
Their Lordships are very conscious that the
Jamaican Government faces great difficulties
with a disturbing murder rate and limited
financial resources at their disposal to
administer the legal system. Nevertheless, if
capital punishment is to be retained it must be
carried out with all possible expedition. Capital
appeals must be expedited and legal aid
allocated to an appellant at an early stage. The
aim should be to hear a capital appeal within 12
months of conviction. The procedure contained
in the Governor-General's Instructions should be
reinstated so that the J.P.C. consider the case
shortly after the Court of Appeal hearing and if
an execution date is set and there is to be an
application to the Judicial Committee of the Privy
Council it must be made as soon as possible, as
both the rules of the Judicial Committee of the
Privy Council and the Governor-General's
Instructions require, in which case it should be
possible to dispose of it within six months of the
Court of Appeal hearing or within a further six
months if there is to be a full hearing of the
appeal. In this way it should be possible to
complete the entire domestic appeal process
In their Lordships' view a state that wishes to
retain capital punishment must accept the
responsibility of ensuring that execution follows
as swiftly as practicable after sentence, allowing
a reasonable time for appeal and consideration
of reprieve. It is part of the human condition
that a condemned man will take every
16
within approximately two years. Their Lordships
do not purport to set down any rigid timetable
but to indicate what appear to them to be
realistic targets which, if achieved, would entail
very much shorter delay than has occurred in
recent cases and could not be considered to
involve inhuman or degrading punishment or
other treatment……
As to appeals from the Supreme Court itself,
whereas before the passing of the Statute of
Westminster, 1931, the power vested in the
Dominion Parliament by s. 101 of the British
North America Act, 1867, to establish a general
Court of Appeal for Canada was necessarily
subject to the prerogative right of His Majesty to
grant special leave to appeal therefrom, since
that right was not expressly or by necessary
intendment excluded, that restriction or fetter
on the legislative power of the Dominion had
been removed by the Statute of Westminster,
and it was accordingly within the power of the
Dominion Parliament to enact that the
jurisdiction of its Supreme Court should be
ultimate.
These considerations lead their Lordships to the
conclusion that in any case in which execution is
to take place more than five years after
sentence there will be strong grounds for
believing that the delay is such as to constitute
"inhuman or degrading punishment or other
treatment." If, therefore, rather than waiting
for all those prisoners who have been in death
row under sentence of death for five years or
more to commence proceedings pursuant to
section 25 of the Constitution, the GovernorGeneral now refers all such cases to the J.P.C.
who, in accordance with the guidance contained
in this advice, recommend commutation to life
imprisonment, substantial justice will be
achieved swiftly and without provoking a flood of
applications to the Supreme Court for
constitutional relief pursuant to section 17(1).”
As to appeals direct from provincial courts to His
Majesty in Council, s. 101 of the British North
America Act "read and applied as prima facie
intended to endow the Dominion Parliament with
power to effect high political objects concerning
the self-government of the Dominion .... in the
matter of judicature," imported authority to
establish a court having supreme and final and
exclusive appellate jurisdiction in Canada.
Section 101 conferred a legislative power on the
Dominion Parliament which by its terms
overrode any power conferred by s. 92 of the
British North America Act on the provinces or
preserved by s. 129 of that Act. The words in s.
101, "notwithstanding anything in this Act,"
vested in the Dominion a plenary authority to
legislate in regard to appellate jurisdiction which
was only qualified by that which lay outside the
Act, namely, the sovereign power of the
Imperial Parliament. Accordingly, since the
coming into operation of the Statute of
Westminster,
which
gave
the
Dominion
Parliament power to abrogate Imperial Statutes
which qualified its attribute of sovereign power
by an external constitutional limitation, the
authority conferred by s. 101 stood unqualified
and absolute.
The right to abolish appeals to the Privy
Council
Attorney General for Ontario v Attorney
General for Canada [1947] A.C. 127
By Bill 9, introduced into the Canadian
Parliament in 1939 and entitled "An Act to
amend the Supreme Court Act of Canada," it
was provided that "The Supreme Court shall
have, hold and exercise exclusive ultimate
appellate civil and criminal jurisdiction within
and for Canada; and the judgment of the court
shall, in all cases, be final and conclusive," and
that "Notwithstanding any royal prerogative or
anything contained in any Act of Parliament of
the United Kingdom or any Act of the Parliament
of Canada or any Act of the legislature of any
province of Canada or any other statute or law,
no appeal shall lie or be brought from any court
.... within Canada to any court of appeal,
tribunal or authority by which, in the United
Kingdom, appeals or petitions to His Majesty in
Council may be ordered to be heard." The Bill
further provided that the Judicial Committee
Acts, 1833 and 1844, and all orders, rules or
regulations made thereunder were repealed in
so far as they were part of the law of Canada:-
Viewing the matter from a wider point of view, it
is not consistent with the political conception
which is embodied in the British Commonwealth
of Nations, that one member of that
Commonwealth should be precluded from
setting up a supreme court of appeal having a
jurisdiction both ultimate and exclusive of any
other member. Further, the regulation of
appeals is "a prime element in Canadian
sovereignty" which would be impaired if at the
will of its citizens recourse could be had to a
tribunal in the constitution of which it had no
voice. It would be alien to the spirit with which
the preamble to the Statute of Westminster is
instinct to concede anything less than the widest
amplitude of power to the Dominion under s.
101 of the British North America Act. That the
law should be one and the same for all its
citizens was only attainable if s. 101 now
authorized the establishment of a court with
final and exclusive appellate jurisdiction.
Held, that Bill 9 was wholly intra vires of the
Parliament of Canada, which, accordingly, was
competent to enact in regard both to appeals
from the Supreme Court of Canada itself and
appeals direct from the provincial courts to His
Majesty in Council that the Supreme Court
should
have
"exclusive"
and
"ultimate"
appellate, civil and criminal jurisdiction.
17
which undoubtedly existed up to the date of that
event. And in answering that question it seems
highly unreal to ignore the significance of the
continued presence of provisions in the revised
statute book which recognise the right of appeal,
since in common with the other circumstances
to which their Lordships have thought it proper
to allude their presence testifies plainly to the
fact that, if the coming of independence did by
itself impliedly abolish the judicial appeal, the
implication, though now said to be necessary,
has escaped for years the notice of all those
most directly concerned with the administration
of the appeal system.”
Ibralebbe v R. [1964] A.C. 900
The jurisdiction of the Board to entertain appeals
from Ceylon in criminal matters still exists and
has not been abrogated by Ceylon's attainment
of independence in 1947. Nowhere is there to be
found in the instruments employed to bring
about independence - the Ceylon Independence
Act, 1947, and the several Orders in Council
setting up the Ceylon Constitution - any
reference to the Privy Council appeal, its
continuance or its extinguishment, nor is there
anything in those measures which by necessary
implication puts an end to the prerogative right
to hear appeals which existed before the date of
independence.
And at pp. 921-922:
“The complement to the injunction contained in
section 21 of the Act of 1833 is, for Ceylon, the
sections of its local legislation which have
already been referred to, section 40 of the
Courts Ordinance and section 334 of the
Criminal Procedure Code. Between them, these
various legislative provisions establish that the
Privy Council appeal is part of the judicial
system of Ceylon, a part of the structure of
original and appellate courts by which legal
decisions, judgments, decrees and orders are
passed and recorded.
The Order in Council which gives effect to a
Judicial Committee report is a judicial order - it
is in everything but form the equivalent of a
legal judgment. It is an "order or decree ... on
appeal" (section 21 of the Judicial Committee
Act, 1833), and is mandatory in its directions to
those whom it affects by virtue of the provisions
of section 21. The complement to the injunction
contained in section 21 of the Act of 1833 is, for
Ceylon, the sections of the local legislation section 40 of the Courts Ordinance and section
334 of the Criminal Procedure Code - which
establish that the Privy Council appeal is part of
the judicial system of Ceylon. It would be highly
unreal to ignore the significance of the continued
presence of provisions in the 1956 Revised
Edition of the Legislative Enactments of Ceylon
which recognise the right of appeal to the Privy
Council.
It is not as if the Judicial Committee was, in
essence, an English institution or an institution
of the United Kingdom. On the contrary, as Lord
Haldane said in Alex. Hull & Co. v. M'Kenna, it is
"not a body, strictly speaking, with any
location." "It is not," he said, "an English body in
any exclusive sense. It is no more an English
body than it is an Indian body, or a Canadian
body, or a South African body, or, for the future,
an Irish Free State body." If and when a
territory having institutional power to do so, as
Ceylon now has, decides to abrogate the appeal
to the Judicial Committee from its local courts,
what it does is to effect an amendment of its
own judicial structure.”
Accordingly, since the structure of the courts in
Ceylon for dealing with legal matters and the
system of appeals existing at the date of
independence have not been affected by any of
the instruments that conferred that status, it
follows that, inasmuch as the Order in Council
made upon report of the Judicial Committee is
the effective judgment to dispose of and
implement the Committee's decision of an
appeal, the power to make such an order
remains unabated.
And at pp. 924-925:
“Their Lordships can now summarise what is, in
their opinion, the effect of Ceylon's attainment
of independence and of the accompanying
legislative provisions, so far as concerns the
present right of Her Majesty to make Orders in
Council affecting Ceylon. There is no power to
legislate for Ceylon: to do so would be wholly
inconsistent with the unqualified powers of
legislation conceded by the 1946 Order. There is
no power to participate in the government of
Ceylon through the medium of Orders in
Council, since the control and direction of the
government of the territory are in the charge of
the Cabinet of Ministers, responsible to the
Parliament of Ceylon, and in the GovernorGeneral according to his constitutional powers.
But the structure of courts for dealing with legal
matters and the system of appeals existing at
Since the Parliament of Ceylon, under its now
existing constitutional power, may at any time
modify or terminate the Privy Council appeal,
true independence is not in any way
compromised by the continuance of that appeal.
Per Viscount Radcliffe, at p. 918
“The essential point to attend to, in their
Lordships' opinion, is to inquire whether there is
anything in the legislative or other measures
which brought about the independence of Ceylon
or the constitutional status resulting from those
measures which by necessary implication put an
end to the prerogative right to hear appeals and
the complementary right to apply for them,
18
the date of independence have not been affected
by any of the instruments that conferred that
status, and it follows that, inasmuch as an Order
in Council made upon report of the Judicial
Committee is the effective judgment to dispose
of and implement the Committee's decision of
an appeal, the power to make such an Order
remains unabated.
Order applies, one of which is Grenada. Section
3 is in the following terms:
Their Lordships must observe, in conclusion,
having regard to one or two remarks that
appear in the judgment of the Chief Justice, that
it seems to them a misleading simplification to
speak of the continuance of the Privy Council
appeal as being inherently inconsistent with
Ceylon's status as an independent territory or as
being bound up with a relationship between Her
Majesty and colonial subjects. Historically, the
assumption would in itself be inaccurate, and,
constitutionally, it is unnecessary. For, if it is
recognised, as it must be, that the legislative
competence of the Parliament of Ceylon includes
power at any time, if it thinks right, to modify or
terminate the Privy Council appeal from its
courts, true independence is not in any way
compromised by the continuance of that appeal,
unless and until the sovereign legislative body
decides to end it.”
So, in order to determine in what kinds of cases
and subject to what conditions a right of appeal
(if any) in proceedings originating in Grenada is
granted by the section, it is necessary to have
recourse to the provisions of the Constitution of
Grenada itself as they are currently in force at
the time at which leave to appeal to Her Majesty
in Council is sought, including any amendments
to the original Independence Constitution that
have been validly made by then.
‘An appeal shall lie to Her Majesty in Council
from decisions of the court given in any
proceeding originating in a State in such
cases as may be prescribed by or in
pursuance of the Constitution of that State.’
Bearing in mind that the Privy Council Appeals
Order applies not to Grenada alone but to six
separate States of which Grenada is but one,
and its use of the word “may”, it is in their
Lordships’ opinion impossible so to construe the
section as to exclude the power of an individual
State to prescribe by or in pursuance of its own
Constitution that no appeal should lie to Her
Majesty in Council in proceedings of any kind
originating in that State.
Furthermore, the
consequences of adopting such construction
would lead to absurdity. It would mean that the
Parliament of Grenada could cut down the right
of appeal to the Privy Council to anything that
was short of absolute vanishing point, so long as
there was left some narrowly-defined type of
case in which an appeal could be brought
subject to specified stringent conditions,
however unlikely it might be that a case falling
within the definition would ever be brought and
the specified conditions fulfilled.
Mitchell v DPP (1985) 32 W.I.R. 241 (P.C.)
Section 3 of the West Indies Associated States
(Appeals to Privy Council) Order 1967 does not
exclude the power of an individual State to
prescribe by or in pursuance of its own
Constitution that no appeal should lie to Her
Majesty in Council in proceedings of any kind
originating in that State.
Whatever the original validity of People’s Law 84
of 1979 (promulgated by the self-styled
“People’s
Revolutionary
Government”
of
Grenada), its subsequent ratification by Act 1 of
1985, section 2(i), which was passed unopposed
by the legitimate Parliament of Grenada effected
an amendment to the Constitution, section 104,
precluding any right of appeal to the Privy
Council. Accordingly, a petition for special leave
to appeal to Her Majesty in Council by a
petitioner in Grenada which was lodged after Act
1 of 1985 received the assent of the GovernorGeneral was outside the jurisdiction of the
Board.
The relevant provision of the Constitution of
Grenada prior to the coup d’etat of March 1979
was
section
104
of
the
Independence
Constitution.
This section granted extensive
appeals to Her Majesty in Council as of right and
an unlimited right of appeal by special leave of
Her Majesty.
By section 39(2) of the
Independence Constitution any Bill amending
section 104 had to be supported on final reading
by the votes of not less than two-thirds of all the
members of the House of Representatives; but,
by virtue of section 39(5) and the express
exclusion of section 104 from Part 1 of Schedule
1 to the Independence Constitution, that
subsection does not apply to alteration or repeal
of section 104 and neither ninety days’ delay nor
approval by referendum was required.
Per Lord Diplock, at pp. 243-245:
“The source of this Board’s jurisdiction to hear
appeals in proceedings originating in Grenada is
section 3 of the West Indies Associated States
(Appeals to Privy Council) Order 1967 (“the
Privy Council Appeals Order”). That Order is
closely linked with the West Indies Associated
States Supreme Court Order 1967 (“the Court
Order”) and the reference to “State” in section 3
is to the six Caribbean States to which the Court
The relevant provision of People’s Law 84 of
1979 reads as follows:
‘2. (1) As from the prescribed day appeals to
Her Majesty in Council are abolished and all
decisions of the Judicial Committee of the
19
Privy Council, whether given before or after
the prescribed day, shall have no binding
legal force in Grenada.
(2) In the foregoing subsection ‘the
prescribed day’ is 13th March 1979.’
questions; but Act 1 of 1985 speaks to the
future only. In their Lordships’ view it deprives
them clearly and unambiguously of any
jurisdiction to entertain this petition under
section 3 of the Privy Council Appeals Order,
which is, as they have already pointed out, their
only source of jurisdiction to hear appeals in
proceedings originating in Grenada.”
Whatever may be argued about (i) the original
validity or continued effectiveness of People’s
Law 84 of 1979, (ii) its subsequent continuance
by the Governor-General in his proclamation of
4th November 1983, made after the military
intervention, and (iii) such reservations about
constitutional provisions relating to the judicial
system as he purported to make in his Order of
9th November 1984 declaring the Independence
Constitution to be once more in force, that
Constitution was, in general, treated as
operative.
General elections pursuant to its
provisions were held and a new Parliament was
sworn in by the end of December 1984.
Independent Jamaica Council for Human
Rights (1998) Ltd v Attorney General of
Jamaica [2005] UKPC 3
This entire case must be read. It can be found at
the following address:
http://www.privy-council.org.uk/files/other/independent%20jamaica.jud.rtf
AGREEMENT
ESTABLISHING
CARIBBEAN COURT OF JUSTICE
The first law that the new Parliament passed
was Act 1 of 1985 of which the relevant enacting
provision was:
THE
ARTICLE IV
CONSTITUTION OF THE COURT
‘2. For the avoidance of doubt it is hereby
enacted that the following laws, rules and
proclamations are in force, and shall remain
in force until otherwise enacted: (i) Law and
Rules made by the People’s Revolutionary
Government...’
1.
Subject to paragraph 2 of this Article, the
Judges of the Court shall be the President and
not more than nine other Judges of whom at
least
three
shall
possess
expertise
in
international law including international trade
law.
The Act received the assent of the GovernorGeneral on 21st February 1985. Although there
is not among the papers lodged with the petition
a certificate by the Speaker or deputy Speaker
under section 39(7) of the Constitution to the
effect that Act 1 of 1985 was supported by twothirds of all Members of the House of
Representatives, no point was taken as to this
either before their Lordships or in the courts of
Grenada; for it is common ground that the Bill
which became Act 1 of 1985 received the
support of at least two-thirds of all Members of
the House of Representatives, where the Bill
passed unopposed as it did also in the Senate.
2.
The number of Judges, excluding the
President, may be increased by the Heads of
Government, upon the recommendation of the
Commission.
3.
The Court shall be duly constituted as set
out in Parts II and III and may sit in such
number of divisions as may be directed by the
President but every Judge of the Court may sit
in any division.
4.
The determination of any question before
the Court shall be according to the opinion of
the majority of the Judges of the Court hearing
the case.
The words of People’s Law 84 which purport to
abolish appeals to the Privy Council are in
absolute and unambiguous terms. In effect the
first thirteen words purported to repeal the
whole of section 104 of the Independence
Constitution.
Those words have since been
confirmed and thereby validated by an Act of the
legitimate Parliament of Grenada passed by a
procedure by which section 104 (which may be
described as semi-entrenched, rather than fully
entrenched provision) may validly be repealed
or amended. The repeal has therefore altered
the Constitution of Grenada since 21st February
1985. Their Lordships, in dealing with a petition
lodged on 28th June 1985, are not concerned
with any retrospective effect of amendments to
the Independence Constitution or with the effect
of the words after the first thirteen in People’s
Law 84.
These might pose highly arguable
5.
Notwithstanding the provisions of this
Article, the President may appoint one or more
judges to determine interlocutory matters.
6.
The President shall be appointed or
removed by the qualified majority vote of three
quarters of the Contracting Parties on the
recommendation
of
the
Commission.
7.
The Judges of the Court, other than the
President, shall be appointed or removed by a
majority vote of all of the members of the
Commission.
8.
The President shall take precedence over
all other Judges of the Court and the seniority of
the other Judges of the Court shall be
determined in accordance with the dates of their
20
appointment.
(b)
Two persons nominated jointly by the
Organisation of the Commonwealth Caribbean
Bar Association (OCCBA) and the Organisation of
Eastern
Caribbean
States
(OECS)
Bar
Association;
9.
The appointment of the President shall be
signified by letter under the hand of the
Chairman for the time being of the Conference
acting on the advice of the Heads of
Government and the appointment of any other
Judge of the Court shall be signified by letter
under the hand of the Chairman of the
Commission.
(c)
One chairman of the Judicial Services
Commission of a Contracting Party selected in
rotation in the English alphabetical order for a
period of three years;
10.
A person shall not be qualified to be
appointed to hold or to act in the office of Judge
of the Court, unless that person satisfies the
criteria mentioned in paragraph 11 and –
(d)
The Chairman of a Public Service
Commission of a Contracting Party selected in
rotation in the reverse English alphabetical order
for a period of three years;
(a)
is or has been for a period or periods
amounting in the aggregate to not less than five
years, a Judge of a court of unlimited jurisdiction
in civil and criminal matters in the territory of a
Contracting Party or in some part of the
Commonwealth, or in a State exercising civil law
jurisprudence common to Contracting Parties, or
a court having jurisdiction in appeals from any
such court and who, in the opinion of the
Commission, has distinguished himself or herself
in that office; or
(e)
Two persons from civil society nominated
jointly by the Secretary-General of the
Community and the Director General of the
OECS for a period of three years following
consultations with regional nongovernmental
organisations;
(f)
Two distinguished jurists nominated
jointly by the Dean of the Faculty of Law of the
University of the West Indies, the Deans of the
Faculties of Law of any of the Contracting Parties
and the Chairman of the Council of Legal
Education; and
(b)
is or has been engaged in the practice or
teaching of law for a period or periods
amounting in the aggregate to not less than
fifteen years in a Member State of the Caribbean
Community or in a Contracting Party or in some
part of the Commonwealth, or in a State
exercising civil law jurisprudence common to
Contracting parties, and has distinguished
himself or herself in the legal profession.
(g)
Two persons nominated jointly by the Bar
or Law Associations of the Contracting Parties.
2.
Where any person or body required to
nominate a candidate for appointment to the
Regional Judicial and Legal Services Commission
in accordance with paragraph 1, fails to make
such nomination within thirty (30) days of a
written request in that behalf, the nomination
shall be made jointly by the heads of the
judiciaries of the Contracting Parties.
11.
In making appointments to the office of
Judge, regard shall be had to the following
criteria: high moral character, intellectual and
analytical ability, sound judgment, integrity, and
understanding of people and society.
3.
(1)
The
responsibility for:
12.
The
Commission
may,
prior
to
appointing a Judge of the Court, consult with
associations
representative
of
the
legal
profession and with other bodies and individuals
that it considers appropriate in selecting a Judge
of the Court.
shall
have
(a)
making appointments to the office of
Judge of the Court, other than that of President;
(b)
making appointments of those officials
and employees referred to in Article XXVII and
for determining the salaries and allowances to
be paid to such officials and employees;
ARTICLE V
ESTABLISHMENT
OF
THE
JUDICIAL
AND
LEGAL
COMMISSION
Commission
(c)
the determination of the terms and
conditions of service of officials and employees;
and
REGIONAL
SERVICES
(d)
the
accordance
Agreement.
1.
There is hereby established a Regional
Judicial and Legal Services Commission which
shall consist of the following persons:
termination
with the
of appointments in
provisions of this
(2)
The Commission shall, in accordance with
the Regulations, exercise disciplinary control
over Judges of the Court, other than the
President, and over officials and employees of
the Court.
(a)
The President who shall be the Chairman
of the Commission;
21
including the Chairman or, where the Deputy
Chairman is presiding, the Deputy Chairman.
4.
The term of office of members of the
Commission, other than the Chairman shall be
three years, but such members shall be eligible
for re-appointment for another term of office.
14.
Subject to this Article, the Commission
shall have power to regulate its own procedure.
5.
The members of the Commission referred
to in paragraph 1(b), (c), (d), (f) and (g) shall
be appointed by letter under the hand of the
President.
ARTICLE VI
THE
FIRST
APPOINTMENT
PRESIDENT
AND
MEMBERS
COMMISSION
6.
If the office of a member of the
Commission, other than the Chairman is vacant
or the holder thereof is unable to perform the
functions of his office, a person may be
appointed to perform the functions of that office
for the unexpired term of the holder of the office
or until the holder resumes office.
(b)
Disqualified from the
business nor its proceedings
reason of the non?receipt by a
Commission, of a notice for a
Commission.
THE
THE
1.
For the purposes of the first appointment
of the President and Commissioners and
notwithstanding the provisions of paragraph 6 of
Article IV, the members of the Commission
appointed pursuant to the Agreement shall
make a recommendation for the appointment of
the President.
7. Subject to paragraph 13 of this Article, the
Commission shall not be:
(a)
Disqualified from the transaction
business by reason of any vacancy in
membership and its proceedings shall not
invalidated by the presence or participation
any person not entitled to be present or
participate in those proceedings;
OF
OF
2.
Notwithstanding the
paragraphs 4 and 5 of Article V:
of
its
be
of
to
provisions
of
(a)
the term of office of the members of
the Commission appointed in accordance with
paragraph 1 of this Article shall be one year;
and
transaction of
invalidated by
member of the
meeting of the
(b)
the members of the Commission
mentioned in subparagraph (a) of this paragraph
shall be appointed by letter under the hand of
the heads of the judiciary of the Contracting
Parties.
8.
The Commission may, by directions in
writing and subject to such conditions as it
thinks fit, delegate any of its powers under
paragraph 3(1)(b) and (c) of this Article to any
one or more of its members or to the Registrar.
ARTICLE IX
TENURE OF OFFICE OF JUDGES
1.
The office of a Judge of the Court shall not
be abolished while there is a substantive holder
thereof.
9.
A member of the Commission, other than
the Chairman may, by writing under the hand of
that member, addressed to the Chairman of the
Commission, resign from the Commission.
2.
Subject to the provisions of this Article,
the
President
shall
hold
office
for
a
nonrenewable term of seven years or until he
attains the age of seventy-two years, whichever
is earlier, except that the President shall
continue in office, if necessary, for a further
period not exceeding three months to enable
him to deliver judgment or to do any other thing
in relation to any proceedings part heard by
him.
10.
The Commission shall, no later than 31
March in every year, submit to the Heads of
Government, an Annual Report of its work and
operations during the previous year.
11.
The Registrar of the Court shall perform
the functions of Secretary of the Commission
and shall be the chief administrative officer of
the Commission.
3.
Subject to the provisions of this Article, a
Judge of the Court shall hold office until he
attains the age of seventy-two years, except
that he shall continue in office, if necessary, for
a further period not exceeding three months to
enable him to deliver judgment or to do any
other thing in relation to any proceedings partheard by him.
12.
In the exercise of their functions under
this
Agreement,
the
members
of
the
Commission shall neither seek nor receive
instructions from any body or person external to
the Commission.
13.
A quorum for the transaction of
business by the Commission shall consist of not
less than six members of the Commission
4.
A Judge may be removed from office only
for inability to perform the functions of his
22
office, whether arising from illness or any other
cause or for misbehaviour, and shall not be so
removed except in accordance with the
provisions of this Article.
been referred to a tribunal under paragraph 6 of
this Article, the Heads of Government in the
case of the President, or the Commission, in the
case of any other Judge of the Court, may
suspend such Judge from performing the
functions of his office, and any such suspension
may at any time be revoked by the Heads of
Government or the Commission, as the case
may be, and shall in any case cease to have
effect if the tribunal advises the Heads of
Government or the Commission that the Judge
ought not to be removed from office.
5.
(1)
Subject to Article IV, paragraph 5,
the President shall be removed from office by
the
Heads
of
Government
on
the
recommendation of the Commission, if the
question of the removal of the President has
been referred by the Heads of Government to a
tribunal
and the tribunal has advised the
Commission that the President ought to be
removed from office for inability or misbehaviour
referred to in paragraph 4.
9.
(1)
The President may at any time
resign the office of President by writing under
the hand of the President addressed to the
Chairman for the time being of the Conference.
(2)
Subject to Article IV, paragraph 6, a
Judge other than the President shall be removed
from office by the Commission if the question of
the removal of the Judge has been referred by
the Commission to a tribunal; and the tribunal
has advised the Commission that the Judge
ought to be removed from office for inability or
misbehaviour referred to in paragraph 4.
(2)
Any other Judge of the Court may at any
time resign the office of Judge of the Court by
writing under the hand of the Judge addressed
to the Chairman of the Commission.
Douglas L Mendes S.C.
October 2005
6.
If at least three Heads of Government in
the case of the President jointly represent to the
other Heads of Government, or if the
Commission decides in the case of any other
Judge, that the question of removing the
President or the Judge from office ought to be
investigated, then (a)
the Heads of Government or the
Commission shall appoint a tribunal which shall
consist of a chairman and not less than two
other members, selected by the Heads of
Government or the Commission, as the case
may be, after such consultations as may be
considered expedient, from among persons who
hold or have held office as a Judge of a court of
unlimited jurisdiction in civil and criminal
matters in some part of the Commonwealth, or
in a State exercising civil law jurisprudence
common to Contracting Parties, or a court
having jurisdiction in appeals from any such
court; and
(b)
The tribunal shall enquire into the matter
and advise the Heads of Government or the
Commission, as the case may be, whether or
not the President or the Judge ought to be
removed from office.
7.
The provisions of any law relating to the
holding of commissions of inquiry in the Member
State of the Caribbean Community where the
inquiry is held shall apply as nearly as may be in
relation to tribunals appointed under paragraph
6 of this Article or, as the context may require,
to the members thereof as they apply in relation
to Commissions or Commissioners appointed
under that law.
8.
If the question of removing the President
or any other Judge of the Court from office has
23