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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