Cerise Jacobs v Minister of Tourism

• Jurisdiction: Caribbean States
• Court: Eastern Caribbean Supreme Court
• Judge: Blenman JA
• Judgment Date: 24 May 2022
• Judgment citation (vLex): [2022] ECSC J0524-1
• Docket Number: ANUHCVAP2019/0011

Between:

Cerise Jacobs

Appellant

and

[1] Minister of Tourism

[2] The Commissioner of Police

[3] Chief Magistrate

Respondents

Before:

The Hon. Mde. Louise Esther Blenman Justice of Appeal

The Hon. Mr. Mario Michel Justice of Appeal

The Hon. Mr. Gerard St. C Farara Justice of Appeal [Ag.]

ANUHCVAP2019/0011

THE EASTERN CARIBBEAN SUPREME COURT

IN THE COURTOF APPEAL

Civil Appeal — Constitutional law — Section 46 of the Constitution of Antigua and Barbuda — Delegation of legislative power — Delegation of legislative power by Parliament to Executive — Section 26(d) of The St. John's Development Corporation Act — Penal offences — Whether learned judge erred in finding Minister had authority to create regulations which imposed penal offences — Discretion of Minister to fix penalties — Section 17 of the Interpretation Act of Antigua and Barbuda — Whether section 26(d) of The St. John's Development Corporation Act violated section 46 of the Constitution of Antigua and Barbuda

At the heart of this appeal is a legal challenge to the Parliament of Antigua and Barbuda's (“Parliament”) ability to delegate a specific aspect of its law-making power. Parliament delegated to the Minister of Tourism (“the Minister”) the power to make laws in relation to the prohibition of specific vending conduct and enables him to fix penalties for breaches of the law. The Minister, acting pursuant to that power, enacted subsidiary legislation in the nature of regulation 3(1)(a) of The St. John's Development Corporation (Heritage Quay) Regulations, 2010 (“the St. John's Regulations”) which prohibited vending without a permit in Heritage Quay.

Ms. Cerise Jacobs (“Ms. Jacobs”) was charged by the Commissioner of Police with the commission of the offences of vending without a permit contrary to regulation 3(1)(a) of the St. John's Regulations. Having been charged, Ms. Jacobs appeared before the Chief Magistrate and applied for bail. The Chief Magistrate granted Ms. Jacobs bail in respect to the charges that were laid in relation to the St. John's Regulations, on condition that she did not attend Heritage Quay for any purpose.

Ms. Jacobs subsequently filed a Fixed Date Claim in the High Court and sought an administrative order. She prayed for reliefs including declarations of breaches of her constitutional rights and declarations that the Minister in creating regulation 3(1)(a) of the St. John's Regulations acted unlawfully and in contravention of section 46 of the Constitution of Antigua and Barbuda. She also sought to have regulation 3(1)(a) of the St. John's Regulations declared ultra vires section 26 of The St. John's Development Corporation Act.

The issue before the court of first instance was whether the Minister had the authority to make regulations 3(1) and (2) of the St. John's Regulations, which imposed penal consequences. The learned judge concluded that Parliament had the power to delegate some of its law-making power and that section 4 of The St. John's Development Corporation Act as amended which was facilitated by the Law Revision (Miscellaneous) (Amendments) (No. 2) Act 2000 and empowered the Minister to make the regulations in question. The learned judge therefore concluded that the Minister had authority and could make the regulation and accordingly struck out Ms. Jacobs' claim.

Being dissatisfied with the decision of the learned judge, Ms. Jacobs appealed. The four issues before the Court for resolution are: (i) Whether the judge erred in concluding that the Minister had the authority to make regulations which imposed penal consequences; (ii) Whether section 26(d) of the St. John's Development Corporation Act violated section 46 of the Constitution of Antigua and Barbuda; (iii) If so, whether the learned judge erred in law by failing to determine whether the actions of the Chief Magistrate and the Commissioner of Police were lawful; and (iv) Whether the judge ought to have concluded that Ms. Jacobs' fundamental rights were breached.

Held: dismissing the appeal against the decision of the learned judge, affirming the decision of the learned judge albeit on expanded bases and ordering that each party shall bear their own costs on the appeal, that:

• 1. Constitutions which are fashioned on the Westminster model, such as the Constitution of Antigua and Barbuda, recognise the existence of three arms of government namely, the Parliament, the Executive and the Judiciary. Further, the Constitution of Antigua and Barbuda is the supreme law of the state. This written Constitution accepts the doctrine of separation of powers and vests the legislative, executive and judicial powers in the respective institutions. These three arms of government must conform to the dictates of the Constitution of Antigua and Barbuda. The doctrine of separation of powers is critical to the efficient functioning of any constitutionally democratic state, and laws which are inconsistent with the doctrine are void to the extent of that inconsistency.

  Hinds and Others v The Queen [1976] 1 All ER 353 applied; Bata Shoe Company Guyana v Commissioner of Inland Revenue and Others (1976) 24 WIR 172 applied; John v Director of Public Prosecution of Dominica (1985) 32 WIR 230 applied.

• 2. Parliament is constitutionally vested with the power to make law as provided for by section 46 of the Constitution of Antigua and Barbuda and has the power or right to delegate some of its law-making power. There is no restriction on the types of persons or body to whom Parliament may delegate some of its legislative power. Similarly, there is no authority which suggests that it is impossible for Parliament to delegate some of its law-making power to create criminal offences to other bodies, including a Minister of State. Criminal penal statutes include every statute that creates an offence against the State. Whatever the character of the penalty, the charge is triable by way of prosecution and can be brought by a public officer. It is also established law that the general penal sanction for disobedience of a prohibition is a conviction. A close review of section 26(d) of The St. John's Development Corporation Act, when read together with regulation 3(1)(a), clearly indicates that the statute in question conferred upon the Minister the power to create a criminal offence. Nothing in section 26(d) of The St. John's Development Corporation Act speaks to civil liability. Accordingly, the learned judge did not err in concluding that the Minister had the authority to make regulations which imposed penal consequences.

  Section 46 of The Antigua and Barbuda Constitutional Order 1981, Cap 23 of the Laws of Antigua and Barbuda applied; Section 26(d) of The St. John's Development Corporation Act, Cap. 392 of the Laws of Antigua and Barbuda applied; Regulation 3(1)(a) of The St. John's Development Corporation (Heritage Quay) Regulations, 2010 No. 18 of 2010 applied; The Queen v Hall (1891) 1 QB 747 applied.

• 3. While Parliament may delegate some of its legislative power to the Executive, there must never be a total usurpation of Parliament's law-making role under the guise of delegated legislation neither should there be any appearance of Parliament abdicating its essential law-making function. Parliament is required to show fidelity to the doctrine of separation of powers and retain effective control over its delegated powers especially in relation to weighty matters such as the creation of a criminal offence. This effective control may be retained by the disjunctive means of circumscribing the delegated power, or by prescribing guidelines or a policy for the exercise of the power. In this appeal, Parliament evidently circumscribed the power granted to the Minister by virtue of section 26(d) of The St. John's Development Corporation Act and did not abdicate its legislative function. To the contrary, Parliament has provided a clear and intelligible rubric to be followed by the delegated authority, namely the Minister. Towards this end, Parliament described the specific area, being Heritage Quay, for which the Minister is empowered to exercise authority and defined the scope of his power in respect of the specific area for which he may make regulations, being prohibiting the carrying on of business of a vendor. Consequently, Parliament adequately circumscribed the Minister's power in section 26(d) of The St. John's Development Corporation Act. Section 26(d) did not therefore violate the separation of powers doctrine. It is therefore not unconstitutional.

  Section 2 of The Antigua and Barbuda Constitutional Order 1981, Cap 23 of the Laws of Antigua and Barbuda applied; Section 46 of The Antigua and Barbuda Constitutional Order 1981, Cap 23 of the Laws of Antigua and Barbuda applied; Section 26(d) of The St. John's Development Corporation Act, Cap. 392 of the Laws of Antigua and Barbuda applied; Regulation 3(1)(a) of the The St. John's Development Corporation (Heritage Quay) Regulations, 2010 No. 18 of 2010 applied; Carltonea Ltd v Commissioners of Works and Others [1943] 2 All ER 560 applied; Abel v Lee (1871) L R 6 CP 365 applied; J Astaphan & Co (1970) v The Comptroller of Customs of Dominica and Others (1996) 54 WIR 153 applied; Re The Delhi Laws Act v The Part C States (Laws) Act 1951 SCR 747 applied.

• 4. It is a settled principle of statutory interpretation that the chapeau guides the subsequent provisions. In this appeal, the chapeau of section 26 is not couched in mandatory terms. Instead, by the use of the word ‘may’, Parliament has given the Minister both the discretion to make the prohibition and the discretion to fix the penalty for contravening such provision or the discretion not to do so. In this appeal, where the Minister exercised his discretion to create a prohibition and exercised his discretion not to fix the penalty, there is no doubt that he acted within the confines of section 26(d) of The St. John's Development...