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Setting the limits of fundamental rights and freedoms in the Commonwealth Caribbean
Published online by Cambridge University Press: 02 January 2018
Extract
The countries collectively described in this article as the Commonwealth Caribbean, comprise those former British possessions, the islands of the Caribbean archipelago and the mainland states of Belize and Guyana, which now enjoy the status of independent states.
In a major deviation from the Constitution and law obtaining in the United Kingdom and its colonial territories, these states have written constitutions which set up a regime of fundamental rights and freedoms as part of the law of the constitution.
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1. These constitute for the most part the older civil and political rights, and include the freedoms of conscience, of expression, association and assembly and movement. Equality rights are given in provisions to secure the protection of the law and protection from discrimination on stated grounds. The right to life, to personal liberty and to property, are secured in all the Bills. Uniquely, Trinidad and Togabo gives distinct recognition to a right to private and family life; the right to join political parties and to express political views; and the right of parents and guardians to give their chargees an education of their choice. The right to vote is absent, as is any form of socio-economic right, except in so far as the latter may have been declared in the Constitution of the Co-operative Republic of Guyana. It appears that the notion of ‘right’ is to include whatever may be encompassed in a ‘freedom’. This proposition is stated in the Trinidad and Tobago Constitution in s 6(3).
2. For articles reviewing the operation of the Bills of Rights in the region, see F Alexis, ‘Two Decades of Human Rights Adjudication in the Commonwealth Caribbean’ (1981) WILJ5; R W James, ‘The State of Human Rights Enforcement in the Co-operative Republic of Guyana’ (1983) WILJ14. See too, L Barnett, ‘The present position regarding the Enforcement of Human Rights in the Commonwealth’ (1980) WILJ97.
3. An account of the provisions of this Bill occurs in L Barnett, The Constitutional Law of Jamaica (LSE-Oxford, 1977), ch 14.
4. For discussion of rights in Commonwealth Constitutions see, eg, S de Smith, The New Commonwealth and its Conrtitutions (London, 1964); B Nwabueze, Constitutionalism in the Emergent States.
5. The account of the adaptation is given in R v Hinds and Others (1974) 22 WIR 368, 389 (CA) (Jamaica).
6. A device to be found in five of the Bills of Rights should however be briefly described, as it can operate to produce limitations in the sense described here, while it may, at the same time, be considered an attempt to deal with a special circumstance. The special savings clause declares that nothing contained in or done under the authority of a law in existence at the time of independence shall be held to be inconsistent with the provisions of the Bill of Rights. As a pre-independence law can be saved against the assertion of a specified right, that law effectively delimits what is actually given in the right. The clause was no doubt created to avoid the potential invalidation of laws, in a system which gave no legal status to what (if recognised at all) are mere liberties in English common law, and to which colonial law may well have been designed not to give recognition. See F Alexis, ‘When is an Existing Law Saved’ [1976] PL 256; M De Merieux, ‘Existing Law and The Implementation of a Bill of Rights; A Caribbean Perspective’ Verfassung und Recht in Ubersee, Vol 19, No 1 (1986).
7. ‘The Tension between God and Caesar’, address delivered at the Commonwealth Law Conference (Hong Kong, September 1983). The text is reproduced in Vol 9 Commonwealth Law Bulletin, 1499.
8. For a recent treatment of this theme, see J Reiman, ‘Law, Rights, Community, and the structure of Liberal Legal Justification’, in Justification Nomos XXVIII, eds Pennock and Chapman (NYUP, 1986).
9. Per Holmes J, Hudson County Water Co v McCarter 209 US 349, 355 (1908).
10. (1976) 28 WIR 304 (CA)(T & T).
11. A significant deviation in the formulation of this clause is to be found in that contained in the current Constitutions of Trinidad and Tobago and of Guyana. In these two states the power is made subject to the sections(s) governing alteration of the Constitution. In all other cases, and as was the case in the 1962 Trinidad and Tobago Constitution, the clause is introduced by the words ‘subject to this Constitution’. Parliament is then given power to make laws for peace, order, etc.
14. (1975) 27 WIR 329 (CA) (T & T).
13. (1979) 26 WIR 233 (CA) (Guyana).
14. Section (4) of the Ordinance declares that the powers given to the competent authority are: (a) to secure a sufficiency of those essentials to the well-being of the community; (b) to regulate exports and imports in a manner calculated to serve the interest of the community; and (c) to ensure generally that the resources available to the community are used in a manner calculated to serve the interest of the community. In the Hope case the stated reason for the licensing scheme was the need to conserve foreign exchange.
15. [1973] AC 761 (PC) (St Christopher-Nevis-Anguilla).
16. Ibid at 772.
17. On this point, see M De Merieux, ‘The Delineation of the Right to Freedom of Expression’ [1980] PL 359.
18. (1974) 22 WIR 368, n 5 at 387. The conception of the judicial task appears to be that of ascertaining whether legislation is within a power given to the legislature. This is similar to the enquiry in ‘federal state’ disputes as to subject-matter jurisdiction, and the learned judge sought to support his statement by a reference to the Australian case of Stenhouse v Coleman (1944) 69 CLR 470. But that enquiry does not demand assessment of legislation as ‘reasonably required’, the task in fact given the non-Trinidad and Tobago courts.
19. [1973] AC 761, n 14 at 772.
20. The presumption of constitutionality, well-established in the law of the region, appears to have migrated by way of Indian precedents extensively used in local proceedings from United States jurisprudence. The presumption, if at all a part of English law, would have had little significance in the absence of judicial review of legislation for substantive validity, especially in a system where the concepts of ‘legality’ and ‘constitutionality’ are not coincident. (See, eg, Mudzimbamuto v Lardner Burke [1969] 1 AC 645, 723 (PC) (Southern Rhodesia). In Commonwealth jurisdictions the presumption has been widely used in adjudicating the validity of the exercise of the legislative power where there are jurisdictional disputes between state and federal governments.
21. [1976] AC 16, 52 (PC) (Antigua).
22. [1973] AC 761 at 773.
23. [1977] AC 195, 224.
24. Ibid at 224.
25. A good example is afforded by Australian Communist Party v The Commonwealth (1951) 83 CLR 1 (HC). With one exception, the judges of the High Court of Australia determined that the plaintiffs were not entitled to adduce evidence in rebuttal of certain propositions of fact stated in the recitals in the Communist Party Dissolution Act 1950. One reason appeared to have been a supposed distinction between treating the recitals as conclusive as to ‘facts’, and viewing them as conclusive as to the existence of legislative opinions; on another view, the task of the court was merely to see whether the legislation fell within a power given to the Commonwealth. This view may be seen as a ‘rational connection test’, as distinct from one requiring an ‘actual’ connection. It is argued that the former test of ‘rationality’ allows for an abstract analysis, making the marshalling of factual evidence less compelling than the second test. A retreat from the resistance to dealing with socio-economic data may be seen in Canadian case law, starting perhaps with the judgment of Laskin CJ in A-G Man v Man Egg Poultry Ass 19 DLR (3d) 169, 181–182. In Trinidad and Tobago, the production of socio-economic data was specifically approved by the Privy Council before whom the matter was presented as an issue for adjudication in Mootoo v A-G [1979] 1 WLR 1335 (T & T). Prior to this approval, and subsequent to the Court of Appeal decision in Mootoo, production of this type of data to support what was in effect a marketing scheme was condemned in Seereeram (n 12 above). In upholding the validity of rent restriction legislation, the Court of Appeal, in the as yet unreported case of A-G v Morgan (Civil Appeal No 11 of 1983), received extensive socio-economic data from both parties to the litigation. Courts in other parts of the Caribbean continue to assert that they are not concerned with policy and are not apparently invited to consider socio-economic data.
26. [1977] AC 195 at 224.
27. [1947] 2 All ER 680, 683.
28. Two earlier Privy Council cases on the point are McCleod v A-G for New South Wales [1891] AC 455, 457; A-G for Ontario v Reciprocal Insurance [1924] AC 328. More recent Canadian case law, illustrating the use of the presumption with the related ‘doctrine’ of reading down of a statute, are Montcalm Construction Inc v Minimum Wage Comr 93 DLR (3d) 641; Reference re Validity of Industrial Relations and Disputes Investigation Act (Can) [1955] 3 DLR 721.
29. Quebec Ass of Protestant School Bds v A-G for Quebec 140 DLR (3d) 33; Re Federal Republic of Germany and Rauca 141 DLR (3d) 412.
30. The case established for the Caribbean that freedom of the press was encompassed in freedom of expression and was constitutionally protected as to enable artificial persons to bring actions for redress for alleged breach of fundamental right under the Bills.
31. [1974] AC 273 (HL).
32. 2 EHRR 245.
33. A different approach from that taken in the Sunday Times case was to be found in Handyside v United Kingdom IEHRR 737, where the court was, in effect, prepared to accept the application of a general rule of law, once it fell within the ambit of Art 10.2, and did not require ‘balancing’ in the circumstances of the particular case.
34. And see text, pp 49–50, supra.
35. 376 US 254 (1964). The theory of this case has recently been reaffirmed in the Arial Sharon v Times Inc litigation. (Reports as yet unavailable.).
36. Confining attention to reported cases, and to those appearing in the West Indies Reports, there are defamation cases reported over a period of as many years resulting from actions sought by Members of Parliament including persons holding ministerial office; four cases of libel brought by private persons are reported. Currently in Guyana, four cases are pending in actions brought by the President and Prime Minister against the Catholic Standurd– the only paper not controlled by the ruling party. (See Caribbean Contact, Vol 12, No 6, 1.).
37. In Jagan and Another v Burnham (1973) 20 WIR 96, the free speech issue evoked these judicial responses: ‘They having already spoken, their freedom of expression can be in no need of protection’; and ‘[w]here is the hindrance complained of? Article 12 is only concerned with an act of hindrance which interferes with the enjoyment of free speech, but not when there has been an abuse of free speech to injure the reputation of another’. Noticeable is the perspective on hindrance. The dicta suggest that this can only occur where ‘expression’ is actually prevented, so that there is no expression at all.
38. The enactment of the legislation provoked much debate in some jurisdictions. The contention that the legislation posed a threat to fundamental rights was rebutted in parliamentary debates by express reference to the restricting subsections accompanying the right-conferring provisions of the Bills. See, eg, HA Deb (Barbados) 26 May 1970, p 1579 col 2, p 1580 col 2.
39. A-G v Antigua Times Ltd (1973) 20 WIR 573, 586, (CA). The learned judge supported his assertion with a brief reference to the American case of Murdoch v Pennsylvania 319 US 105 (1943).
40. A-G v Morgan (unreported Civil Appeal No 11 of 1983). The case is pending on appeal to the Privy Council.
41. See, eg, Handyside v United Kingdom IEHRR 73 at 757, 759.
42. Of this argument Professor Ralph Carnegie has said that it seems ‘too clever by hall’. I find it easy to explain ‘reasonably justifiable’ very differently from ‘reasonably required’, in terms of the mix of a value norm (justifiable) and fact assessment as to the conditions under which the norm is applicable, thus ‘reasonable’ invoking the value norm.
43. In Morgan v A-G, the judge at first instance condemned the rent-restriction legislation as prima facie unreasonable in spite of its social objectives, which he characterised as ‘noble’.
44. See n 40 above.
45. (1967) 12 WIR 5 (CA) (T & T).
46. See n 40 above, at 15.
47. See n 6 above.
48. The example is suggested by American cases, such as Reynolds v US98 US 145 (1878), sustaining convictions for polygamy against claims of religious freedom. This is contrasted with the approach evidenced in Wisconsin v Yoder 406 US 205 (1972), where the Supreme Court held that a state could not compel members of a religious sect to send their children to school beyond a certain age, in order to comply with education laws. As it happens, were a Yoder situation to be litigated in Trinidad and Tobago, the provision giving parental choice in education the status of a fundamental right would be engaged.
49. See note, ‘The First Amendment Overbreadth Doctrine’ 83 Haw LR 844 (1970). The leading cases are: Aptheker v Secretary of State 378 US 500 (1964); United States v Robel 389 US 258 (1967); Broadrick v Oklahoma 413 US 601 (1973); Lewis v New Orleans (II), 415 US 130 (1974).
50. Thornhill v Alabama 310 US 88 (1940).
51. 416 US 134, 230 (1974).
52. (1968) 12 WIR 403.
53. Ibid at 414.
54. See note, ‘The Void for Vagueness Doctrine in the Supreme Court’ 109 U Pa LR 67 (1960).
55. 269 US 385 (1926).
56. [1977] AC 195 (PC).
57. Act No 6 of 1986.
58. [1980] AC 718 (PC).
59. Article 5 (4) (Bahamas).
60. [1980] AC 718 at 739.
61. Section 12 (3)(a) Of the Grenada constitution (1974) permits the state to make laws for ‘the imposition of restrictions on the movement or residence within Grenada of any person or on any person's right to leave Grenada that are reasonably required in the interests of defence, public safety or public order’. Section 12(3)(b) allows for laws imposing similar restrictions on ‘persons generally or any class of persons’, ‘in the interest of defence’ etc, ‘and except so far’ as the law or action thereunder, ‘is shown not to be reasonably justifiable in the democratic society’. The Grenada Parliament appears to have eschewed the fascinating challenge involved in formulating a law under the powers conferred by s 12(3)(b).
62. The danger of vagueness and overbreadth is that both can make susceptible to restraint activity which is constitutionally protected. It is for this reason that it has been said that over breadth is really a special problem of vagueness. Compare, ‘The Void for Vagueness Doctrine in the Supreme Court’ 109 U Pa LR 67 at 110–113.
63. But see Secretary of State for Education and Science v Metropolitan Borough of Tameside [1976] 3 All ER 665, in which it was asserted that even this subjective form would attract review to see whether the required factual substratum to a discretionary decision existed objectively.
64. See n 58.
65. See n 45.
66. See p 41 supra and the reference to Mootoo and Seeretram therein.
67. (1974) 22 WIR 368 at 389.