Leading Bills of Rights Cases

• Pages: 37-113

CHAPTER 6

INTRODUCTION

A later chapter will underscore the fact that an independent judiciary1is indispensable to

the proper functioning of our constitutions. Certain provisions of the constitutions under

which our respective countries are governed have imposed several vital functions on our

courts, tending, as it were, to make them sentinels and guardians of the rights of the

individual. Indeed, there can be no doubt that the fundamental rights and freedoms

provisions which are common features of our constitutions, as well as of other

constitutional instruments prepared by the British Commonwealth Office draftsmen for

former colonial territories, starting with Nigeria, were greatly influenced by the European

Convention on Human Rights.2

From 1962, protective provisions to guarantee the fundamental rights and freedoms

of the individual have formed an integral part of the independence constitutions of

former British colonies in this region. In fact, the constitutions of some colonies3and of

the former West Indies Associated States were adorned with these novel, yet pre-

eminently, important provisions. It was left to the judges to interpret those provisions and

protect the individual’s rights which, at independence, had assumed an entirely new

significance.

One will better be able to appreciate the fundamental character of the functions

entrusted to the courts by considering, in particular, some of the Bills of Rights provisions.

All of the constitutions of the independent countries with which this work deals are

declared to be ‘the supreme law’ of the countries to which they respectively relate;4and

they all contain provisions prescribing the manner in which entrenched sections may be

altered.5As a consequence of this, and in view of the protective provisions referred to

above, jurisdiction has been conferred on the courts to determine questions relating to the

interpretation of the constitutions;6to make declarations and grant relief in cases where

an individual alleges a contravention of any constitutional provision (other than the

protective provisions);7and to grant redress, by way of declarations, orders, writs and

37

LEADING BILLS OF RIGHTS CASES

1 For a comprehensive statement on the question of the independence of the judiciary, see Chapter 13.

2 Cmd 8969, 1953.

3 See, eg, the Bermuda Constitution Order 1968 SI 1968/182; the Anguillan (Constitution) Order 1976 SI

1976/50; the Anguillan Constitution Order SI 1982/334; and the Cayman Islands (Constitution) Order

1972 SI 1972/1101.

4 See Constitutions of Antigua (s 2), Bahamas (Art 2), Barbados (s 1), Dominica (s 117), Grenada (s 106),

Guyana (Art 8), Jamaica (s 2), St Kitts (s 2), St Lucia (s 120), St Vincent (s 101) and Trinidad and Tobago

(s 2).

5 See Constitutions of Antigua (s 47), Bahamas (Art 54), Barbados (s 49), Belize (s 69), Dominica (s 42),

Grenada (s 39), Guyana (Art 66), Jamaica (s 38), St Lucia (s 41), St Vincent (s 38) and Trinidad and

Tobago (s 54).

6 See Constitutions of Antigua (s 120), Belize (s 96), Dominica (s 104), Grenada (s 102), St Kitts (s 97), St

Lucia (s 106), St Vincent (s 97) and Trinidad and Tobago (s 14(4)).

7 See Constitutions of Antigua (s 119), Dominica (s 103), Grenada (s 101), St Kitts (s 96), St Lucia (s 105)

and St Vincent (s 96).

directions, in any case in which a person alleges that any of the protective provisions ‘has

been, is being or is likely to be contravened in relation to him’.8A right of appeal has been

granted to the Court of Appeal from decisions of the High Court on any of these matters.9

Over the 35 years from 1965 to 2000, a formidable jurisprudence has developed in the

12 territories with which this work is concerned – viz, the Bahamas, Belize, Jamaica,

Antigua and Barbuda, St Kitts and Nevis, Dominica, Barbados, St Lucia, St Vincent and

the Grenadines, Grenada, Trinidad and Tobago and Guyana. The result is that any

attempt to include in this book all the cases in both Bills of Rights and non-Bills of Rights

issues is not a feasible proposition.

Accordingly, what the author has decided is to deal in some depth in this volume

with the leading cases on nine key fundamental rights and freedoms in the order shown

hereunder:

A freedom of association;

B equality before the law;

C the right to personal liberty;

D the right to life;

E the right to protection from deprivation of property;

F the right to retain and instruct a legal adviser;

G protection from inhuman and degrading punishment;

H the right to freedom of movement;

I the right to freedom of expression.

A FREEDOM OF ASSOCIATION

All of the constitutions to which reference has been made provided for the protection of

the right of persons to be associated freely, whether it be for political, cultural or business

purposes.10 But, as the courts have ruled, this does not mean that a person can be forced

to become a member of an association against his will, even though it is established by

statute.11 At the same time, freedom of association has been interpreted by Wooding CJ in

Collymore v Attorney General, to mean ‘no more than freedom to enter into consensual

arrangements to promote the common-interest objects of the associating group’. The

objects of the group may be ‘religious or social, political or philosophical, economic or

Commonwealth Caribbean Constitutional Law

38

8 See constitutions of Antigua (s 18), Bahamas (Art 28), Barbados (s 24), Belize (s 20), Dominica (s 16),

Grenada (s 16) Guyana (Art 153), Jamaica (s 25), St Kitts (s 18), St Vincent (s 16) and Trinidad and

Tobago (s 14(1)).

9 See constitutions of Antigua (s 121), Dominica (s 105), Grenada (s 103), Guyana (Art 133), St Kitts

(s 98), St Lucia (s 107), St Vincent (s 98) and Trinidad and Tobago (s 108).

10 Antigua (s 13), Barbados (s 21), Belize (s 13), Dominica (s 11), Grenada (s 11), Guyana (Art 147),

Jamaica (s 23), St Kitts (s 13), St Lucia (s 11), St Vincent (s 11) and Trinidad and Tobago (s 4(j)).

11 See AG of Trinidad and Tobago v Seereeram (1975) 27 WIR 329.

professional, educational or cultural, sporting or charitable’.12 We shall have more to say

on this point later.

In the Grenada case of Re Hamilton and Others13 (unreported), the Governor General

by an order14 purportedly made under ss 34 and 35 of the Nutmeg Industry Ordinance15

sought to dissolve the then existing Board of the Grenada Co-operative Nutmeg

Association (which had been duly constituted in pursuance of the relevant provision of

the Ordinance), to appoint an interim board to manage the affairs of the association and

to vest the property of the association in the interim board so appointed.

The applicants sought, inter alia, a declaration that the order by the Governor General

was ultra vires the Nutmeg Industry Ordinance and that it also contravened their right to

protection of property and the right not to be deprived thereof without compensation.

The applicants further sought declarations that the order contravened their right to

protection of the law and their right to freedom of association and assembly.

Nedd J16 ruled, distinguishing Durayappal v Fernando,17 that the applicants, for

reasons stated in the judgment, had locus standi for purposes of bringing the application

and that the Governor General, in exercising his power to dissolve the board under s 34 of

the ordinance, was required to comply with the rules of natural justice. His failure to

communicate to the members of the board his intention to dissolve the board and the

grounds on which he relied to do so, as well as his failure to afford them an opportunity

to reply to any allegations which may have been made against them, contravened the

rules of natural justice and rendered the order voidable at the suit of the board.18 More

importantly, the learned judge ruled that the Dissolution Order contravened the

applicants’ rights to freedom of association and assembly and was, accordingly, ultra vires

the Constitution of Grenada and null and void.19

Citing the case of Commissioner for Motor Transport v Antill Ranger & Co Ltd,20 the

judge further held that the Nutmeg Board (Dissolution) Order (Validation) Act 197521 did

not have the effect of validating the Dissolution Order ‘which breached not only the

Nutmeg Industry Ordinance but also the Constitution [of Grenada]’. As a consequence of

his rulings above, the judge further held that, since the Dissolution Order was null and

void, the purported appointment by the Governor General of the interim board was ultra

vires and null and void. The judge therefore granted the injunction for which the

applicants had prayed, restraining the members of the interim board from meddling in

the affairs of the association.

Chapter 6: Leading Bills of Rights Cases

39

12 (1976) 12 WIR 5, p 15. See, also, the discussion in Phillips, 1977, pp 137–39. This book will hereafter be

referred to as ‘the 1977 volume’.

13 In the Matter of the Application of Bornston Matthew and Others under the Constitution of Grenada, Suit No

403/1975, pp 1–13.

14 The Nutmeg Board (Dissolution) Order 1975 (SR & O No 15 of 1975).

15 Chapter 210 of the Revised Laws of Grenada.

16 As he then was. He was appointed Chief Justice of Grenada in April 1979.

17 [1967] 2 AC 337.

18 Hamilton et al v Morrison et al (1975) 1CCCBR 308/308, Grenada: Suit 403.

19 Ibid, p 513.

20 [1956] 3 All ER 106.

21 No 18 of 1975.