The evolution of constitutional protection of fundamental rights in Guyana

• Author: Stephen Fraser
• Position: LL.B (Hons) UWI; Attorney-at-Law; Lecturer in Law, University of Guyana
• Pages: 87-110

THE EVOLUTION OF

CONSTITUTIONAL PROTECTION

OF FUNDAMENTAL RIGHTS

IN GUYANA*

STEPHEN

FRASER**

Introduction

The very first constitutional protection for fundamental

rights,

or

Bill

of Rights

as it is familiarly called, in the Commonwealth Caribbean was introduced in

the pre-independence 1961 British Guiana Constitution.1 The Bill of Rights

was retained, with slight modifications, in the 1966 Independence Constitu-

tion as well as the 1970 and 1980 Republican Constitutions.

Since its promulgation there have been significant developments in the

constitutional law governing the protection of fundamental rights. These

developments are most important in the context of fragile economies run by

governments who perceive themselves as bound

to

follow legislative schedules

often imposed by international lending regimes and dictated by multi-national

investors unfamiliar and unconcerned with our constitutional framework.

Background

It

was

not long after the

Bill

of Rights

was

initially promulgated that

a

challenge

was

successfully brought

by

litigants alleging that their fundamental rights had

*This

is an edited version of

a

paper presented at the Guyana Bar Association Law Conference

held

on November 25 & 26,

2000.

*

LL.B

(Hons) UWI;

Attorney-at-Law;

Lecturer in

Law,

University of Guyana.

1

See DeMerieux,

Fundamental

Rights

in

Commonwealth

Caribbean

Constitutions,

(1992)

Chapter

2 for history of introduction of Bills of Rights in Commonwealth Caribbean

Consututions.

been contravened. Inland Revenue

Commissioner

v Lilleyman2 was the earliest

Guyanese case on fundamental rights reported in the West Indian Law

Reports. Consequently it holds a cardinal place in the development of funda-

mental rights protection in Guyana. It

was

determined on appeal by the British

Caribbean Court of Appeal.

In Lilleyman the government of the day sought to introduce the National

Development Savings Levy Ordinance providing for compulsory savings by

way of levy. The legislation was challenged on the basis that it was unconsti-

tutional, in particular that it offended the fundamental right to protection from

deprivation of property. At first instance the impugned legislation was held

unconstitutional. On appeal to the British Caribbean Court of Appeal the

decision of the trial judge was confirmed.

The offending Ordinance was stated to be an Ordinance to make provision

for the levy of compulsory savings to be utilised for works of development in

British Guiana, and for the issue of bonds therefor, the payment of interest

thereon and of prizes with respect thereto and for the redemption

thereof.

The

question was: was this a tax? If it was a tax, it was a permissible imposition

under the Westminster-type Constitution imposed on Guyana.

In order for an imposition to qualify as a tax, the British Caribbean Court

of Appeal stipulated, there are three main elements of a tax, namely:

(i) it must be imposed by a State or other public authority;

(ii) it must be compelled; and

(iii) the imposition must be for public purposes.

If these elements are all and nothing more except for ancillary provisions, then

a conclusion may be reached that the Ordinance imposes,

simpliciter,

a tax.5

The Court in its approach to the interpretation of the Ordinance clearly

defined its role. Jackson, JA., said that,

"Illegitimate and unconstitutional practices get their first footing in that way,

namely, by silent approaches and slight deviations from legal modes of proce-

dure.

This can only be obviated by adhering to the rule that constitutional

provisions for the security of person and property should

be

liberally construed.

A close and literal construction deprives them of half their efficacy and leads to

2 (1964) 7 W.I.R. 464.

3 The presiding judges were Archer,

P.,

Jackson and Stoby,

JJA.

Ramsahoye A-G, D A

Singh and Ramkellawan appeared for the appellants, whilst L Luckhoo., QC, Haynes QC,

and Karran appeared for the respondents.

4 (1964) 13 W.I.R.234.

5 (1964) 7 W.I.R. 464,504.