You are on page 1of 23

UNIVERSITY OF THE WEST INDIES

FACULTY OF LAW
Law and Legal Systems (2005-2006)
Wors!eet No" #
T!e Adm$n$strat$on o% &'st$(e
Case Notes
T!e )'r$sd$(t$on o% t!e &'d$($al Comm$ttee
o% t!e *r$+y Co'n($l
A ty,$(al ,ro+$s$on
Section 109 of the Constitution of Trinidad and
Tobago:
-./" (1) An appea sha ie fro! decisions of
the Court of Appea to the "udicia Co!!ittee as
of right in the foo#ing cases:
(a) fina decisions in ci$i proceedings #here the
!atter in dispute on the appea to the "udicia
Co!!ittee is of the $aue of fifteen hundred
doars or up#ards or #here the appea in$o$es
direct% or indirect% a cai! to or &uestion
respecting propert% or a right of the $aue of
fifteen hundred doars or up#ards'
(b) fina decisions in proceedings for dissoution
or nuit% of !arriage'
(c) fina decisions in an% ci$i( cri!ina or other
proceedings #hich in$o$e a &uestion as to the
interpretation of this Constitution' and
(d) e)cept in eases faing under section 10*(d)(
an% case referred to in that section'
(e) fina decisions in discipinar% !atters under
section *1(+) to (5) of the Supre!e Court of
"udicature Act and under the Soicitors Act'
(f) such other cases as !a% be prescribed,
(2) An appea sha ie fro! decisions of the
Court of Appea to the "udicia Co!!ittee #ith
the ea$e of the Court of Appea in the foo#ing
cases:
(a) decisions in an% ci$i proceedings' #here in
the opinion of the Court of Appea the &uestion
in$o$ed in the appea is one that( b% reason of
its great genera or pubic i!portance or
other#ise ought to be sub!itted to the "udicia
Co!!ittee' and
(b) such other cases as !a% be prescribed,
(+) An appea sha ie to the "udicia Co!!ittee
#ith the specia ea$e of the "udicia Co!!ittee
fro! decisions of the Court of Appea in an% ci$i
or cri!ina !atter in an% case in #hich(
i!!ediate% before the date on #hich Trinidad
and Tobago beca!e a -epubic( an appea coud
ha$e been brought #ith the specia ea$e of tier
.a/est% to 0er .a/est% in Counci fro! such
decisions,
Section 10* pro$ides:
-.0" An appea to the Court of Appea sha be
as of right fro! decisions of the 0igh Court in
the foo#ing( a!ong other cases( that is to sa%:
(a) an% order or decision in an% ci$i or cri!ina
proceedings on &uestions as to the
interpretation of this Constitution'
(b) an% order or decision gi$en in e)ercise of the
/urisdiction conferred on the 0igh Court b%
section 11 (#hich reates to redress for
contra$ention of the pro$isions for the
protection of funda!enta rights)'
(c) an% order or decision gi$en in the
deter!ination of an% of the &uestions for the
deter!ination of #hich a right of access to the
0igh Court is guaranteed b% sections 1(a) and
5(1)'
(d) an% order or decision of the 0igh Court
granting or refusing ea$e to institute
proceedings for the deter!ination of an%
&uestion referred to it under section 52 or
deter!ining an% such &uestion (#hich reates to
the appoint!ent( &uaification( eection or
!e!bership of a Senator or a !e!ber of the
0ouse of -epresentati$es( as the case !a% be)'
(e) an% order or decision of a Court in the
e)ercise of its /urisdiction to punish for conte!pt
of court( incuding cri!ina conte!pt,
A,,eal as o% r$g!t on a (onst$t't$onal
mot$on
Farrington v The Queen 219963 + 4,5,-, 166
The appicant #as con$icted of !urder in the
7aha!as in 1992 and sentenced to death, 0is
appea to the Court of Appea of The 7aha!as
#as dis!issed and the "udicia Co!!ittee of the
8ri$% Counci dis!issed his petition for specia
ea$e to appea against con$iction, 9n .arch
1996 the appicant issued a !otion for reief
under artice 2* of the Constitution of The
7aha!as( cai!ing that dea% in carr%ing out his
e)ecution had contra$ened his funda!enta
right to protection fro! inhu!an and degrading
treat!ent guaranteed b% artice 16(1)( and
sought an order sta%ing his e)ecution pending
deter!ination of the constitutiona !otion, The
/udge dis!issed the appication for a sta% on the
ground that the appicant:s !otion #as ;pain%
and ob$ious% bound to fai,; The Court of
Appea of The 7aha!as( #ithout !a<ing an%
for!a order dis!issing the constitutiona
!otion( uphed the /udge:s refusa of a sta% for
i<e reasons,
=n the &uestion #hether an appea to the
"udicia Co!!ittee a% as of right under artice
101(2) of the Constitution( and on the
appicant:s petition for specia ea$e to appea as
a poor person: -
Held( granting specia ea$e to appea( that on
its true construction artice 101(2) of the
Constitution pro$ided that an appea a% as of
right to the "udicia Co!!ittee fro! an%
decision of the Court of Appea of The 7aha!as
heard pursuant to artice 101(1) #hich had
deter!ined a constitutiona !otion' that
not#ithstanding that the orders refusing the
appicant a sta% had been interocutor% in
character and there had not been an% for!a
order on the constitutiona !otion( in substance
and effect it had been ad$erse% deter!ined to
the appicant( and an appea a% as of right
#ithin artice 101(2)' and that( according%( the
appicant #oud be granted specia ea$e to
appea as a poor person,
>ote: Section 101 (1)?(2) pro$ides as foo#s:
An appea to the Court of Appea sha ie as of
right fro! fina decisions of the Supre!e Court
gi$en in e)ercise of the /urisdiction conferred on
the Supre!e Court b% artice 2* of this
Constitution (#hich reates to the enforce!ent
of funda!enta rights and freedo!s), (2) An
appea sha ie as of right to the "udicia
Co!!ittee of 0er .a/est%:s 8ri$% Counci or to
such other court as !a% be prescribed b%
8aria!ent under artice 105(+) of this
Constitution fro! an% decision gi$en b% the
Court of Appea in an% such case,
8er 5ord @eith( at pp, 169-1*0:
AThere #as a debate as to #hether an appea
ies as of right in the present case, Counse for
the appicant contrasted the right of appea
under artice 101(1) to the Court of Appea
against ;fina decisions of the Supre!e Court;
#ith the right of appea under artice 101(2)
from ;an% decision gi$en b% the Court of Appea
in an% such case,; That #ording( he argued( #as
#ide enough to co$er an% decision #hether fina
or interocutor%, Their 5ordships re/ect that
itera interpretation, 9t #oud be un#or<abe
since it #oud in$o$e an appea as of right( for
e)a!pe( on a decision to ad/ourn the
proceedings for further in&uiries to be !ade, 9n
their 5ordships: $ie# artice 101(2) conte!pates
a decision deter!ining a constitutiona !otion,
=n behaf of the Attorne%-Benera it #as
sub!itted that there is no right of appea since
the decision of the Court of Appea #as
interocutor% in character, Counse said that it
!a<es no ree$ant difference #hether the
conse&uence of the refusa of a sta% !a% resut
in the e)ecution of the appicant, Counse
argued that the focus !ust be on the technica
character of the order !ade, And no for!a
order had been !ade dis!issing the
constitutiona !otion, This is too for!aistic an
approach to the interpretation of the pro$isions
of artice 101(2), 9t is #e setted that
constitutiona pro$isions !ust be generous%
construed, And it is cear that both the /udge
and the Court of Appea rued that the
constitutiona !otion #as doo!ed to fai, At
both e$es it #as decided that there #as
nothing to tr% on the constitutiona !otion,
7oth courts treated the constitutiona !otion as
if it #ere struc< out, 9n substance and effect the
constitutiona !otion #as ad$erse% deter!ined
to the appicant,
9t foo#s that there is an appea as of right, 9f
the appicant #ere not a poor person he #oud
re&uire no specia ea$e, 0e is( ho#e$er( a poor
person and according% see<s specia ea$e to
appea as such,
0a$ing decided to grant specia ea$e to the
appicant their 5ordships propose to sa% nothing
about the !erits or de!erits of the appea, =n
the other hand( for the a$oidance of doubt their
5ordships !a<e cear that e$en in a case #here
an appea ies as of right their 5ordships
consider that it #oud be inappropriate to grant
specia ea$e to appea as a poor person #here it
is pain be%ond rationa argu!ent that the
appea is doo!ed to fai,C
2
Frater v The Queen 219*13 1 4,5,-, 116*
8er 5ord Dipoc<( at pp, 1169-1160:
A7efore departing fro! the !atter their
5ordships desire to co!!ent upon the grounds
upon #hich the appea #as brought to 0er
.a/est% in Counci apparent% as of right under
section 110 (1) of the Constitution of "a!aicaE,,
Section 20 (6) (a) of the Constitution reads:
;(6) F$er% person #ho is charged #ith a
cri!ina offence - (a) sha be infor!ed as
soon as reasonab% practicabe( in a anguage
#hich he understands( of the nature of the
offence charged' ,,,;
9n their 5ordships: $ie# it cannot pausib% be
suggested that an% &uestion of interpretation of
the pain and si!pe #ords ;infor!ed ,,, of the
nature of the offence charged; in section 20 (6)
(a) arose in the instant case, The &uestion that
did arise( or coud ha$e done if in the Court of
Appea reiance had been paced upon this
constitutiona pro$ision (as does not appear to
ha$e been the case)( #as the application of
these pain and si!pe #ords to the particuar
facts of .r, Grater:s case, The infor!ation
re&uired to be gi$en to an accused b% paragraph
(a) of section 20 (6) is in order to enabe hi! to
e)ercise effecti$e% his rights under the
i!!ediate% foo#ing paragraph (b) #hich
pro$ides that he ;sha be gi$en ade&uate ti!e
and faciities for the preparation of his defence,;
9n Harrikissoon v. Attorney-General of Trinidad
and Tobago 219*03 A,C, 265 this 7oard had
occasion to point out the danger of ao#ing the
$aue of the right to app% to the 0igh Court for
redress for contra$ention of his funda!enta
rights and freedo!s #hich is conferred upon the
indi$idua b% section 6 of the Constitution of
Trinidad and Tobago (of #hich the corresponding
section in the Constitution of "a!aica is section
25) to beco!e debased b% ac< of $igiance on
the part of the courts to dispose su!!ari% of
appications that are pain% fri$oous or
$e)atious or are other#ise an abuse of process
of the court, 9n their 5ordships: $ie# si!iar
$igiance shoud be obser$ed to see that cai!s
!ade b% appeants to be entited to appea as of
right under section 110 (1) (c) are not granted
uness the% do in$o$e a genuine% disputabe
&uestion of interpretation of the Constitution and
not one #hich has !ere% been contri$ed for the
purpose of obtaining ea$e to appea to 0er
.a/est% in Counci as of right,C
Alleyne-Forte v Attorney General of
Trinidad and Tobago 2199*3 1 45- 6*
8er 5ord >ichos( at pp, 62-6+:
ATheir 5ordships !ention one further point,
Hnder section 109(1)(c) of the Constitution an
appea ies as of right to the "udicia Co!!ittee
fro! fina decisions of the Court of Appea ;in
an% ci$i( cri!ina or other proceedings #hich
in$o$e a &uestion as to the interpretation of this
Constitution,; 9n their #ritten case the
respondents sub!itted that there #as here no
genuine% disputabe &uestion of interpretation
of the Constitution( as distinct fro! its
appication to a particuar set of facts( and that
the appicant #as not entited to appea as of
right, The% reied on the obser$ations of 5ord
Dipoc< in Frater v. The Qeen (!ote) 219*13 1
4,5,-, 116*( 1160:
;9n Harrikissoon v. Attorney-General of
Trinidad and Tobago 219*03 A,C, 265 this
7oard had occasion to point out the danger of
ao#ing the $aue of the right to app% to the
0igh Court for redress for contra$ention of
his funda!enta rights and freedo!s #hich is
conferred upon the indi$idua b% section 2113
of the Constitution of Trinidad and
Tobago , , , to beco!e debased b% ac< of
$igiance on the part of the courts to dispose
su!!ari% of appications that are pain%
fri$oous or $e)atious or are other#ise an
abuse of process of the court, 9n their
5ordships: $ie# si!iar $igiance shoud be
obser$ed to see that cai!s !ade b%
appeants to be entited to appea as of right
under section 110(1)(c) are not granted
uness the% do in$o$e a genuine% disputabe
&uestion of interpretation of the Constitution
and not one #hich has !ere% been contri$ed
for the purpose of obtaining ea$e to appea
to 0er .a/est% in Counci as of right,;
0ad this been an appea under section 109(1)(c)
(the e&ui$aent of section 110(1)(c) of the
"a!aican Constitution) there !ight ha$e been
force in this sub!ission, This appea( ho#e$er(
#as brought under section 109(1)(d) #hich( b%
reference to section 10*(b)( pro$ides for appeas
as of right fro! ;an% order or decision gi$en in
e)ercise of the /urisdiction conferred on the 0igh
Court b% section 11 (#hich reates to redress for
contra$ention of the pro$isions for the
protection of funda!enta rights),;
An appea as of right( b% definition( !eans that
the Court of Appea has no discretion to
e)ercise, A that is re&uired( but this is re&uired(
is that the proposed appea raises a genuine%
disputabe issue in the prescribed categor% of
case' here( a cai! under section 11 to redress
a contra$ention of a pro$ision for the protection
of a funda!enta right, Contrar% to the
sub!ission of .r, .endes( that principe is as
!uch appicabe to an appea under section
109(1)(d) as it is to an appea under section
109(1)(c), 9t is unnecessar%( ho#e$er( for their
5ordships to e)press an% opinion on the
appication of that principe in this case: that is
not an issue #hich is before the!,C
A,,eals on ele(t$on ,et$t$ons
+
Patterson v Solomon 219603 A,C, 569
7% section 10 of the Trinidad and Tobago
(Constitution) =rder in Counci( 1950( as
a!ended b% the Trinidad and Tobago
(Constitution) (A!end!ent) =rder in Counci(
1956: ;(1) A &uestions #hich !a% arise as to
the right of an% person ,,, (ii) to be or re!ain an
eected !e!ber of the 5egisati$e Counci( sha
be referred to the Supre!e Court of the
Coon% ,,,;
The appeant( a registered eector of Trinidad
and Tobago( sought an in/unction to restrain the
respondent( #ho #as an eected !e!ber of the
5egisati$e Counci of the coon%( a !e!ber of
the F)ecuti$e Counci and the .inister of
Fducation and Cuture( fro! cai!ing to be or in
an% #a% acting as the hoder of those offices on
the ground that his seat in the 5egisati$e
Counci had beco!e $acant under the pro$isions
of section +* (+) (e) of the =rder in Counci of
1950( as a!ended( b% reason of his ha$ing
beco!e a part% to a contract #ith the
go$ern!ent of the coon% for and on account of
the pubic ser$ice:-
Held" (1) that section 10 of the =rder in Counci
of 1950( as a!ended( conte!pated a reference
to the Supre!e Court b% the 5egisati$e Counci
itsef( and that the appeant coud not
co!petent% !aintain the proceedings in an%
for!,
(2) That the appeant coud not escape fro! the
conse&uences of that decision b% dropping his
cai! so far as it reated to !e!bership of the
5egisati$e and F)ecuti$e Councis and confining
it to see<ing to restrain the respondent fro!
acting as .inister of Fducation and Cuture, The
respondent #as( unti the contrar% #as
co!petent% deter!ined( a !e!ber of the
5egisati$e and F)ecuti$e Councis( and it #as
on% if he ceased to be such a !e!ber that he
coud no onger hod the office of .inister to
#hich he had been appointed, Hness and unti
the fact of dis&uaification had been estabished
in the on% !anner per!issibe( it #as not
possibe to argue its conse&uences,
(+) Gurther( e$en if upon a proper reference
under section 10 of the =rder in Counci the
Supre!e Court had co!e to a deter!ination(
#hate$er for! it !ight ta<e( no appea #oud ie
to 0er .a/est% in Counci, F&ua% an appea
#oud not ie fro! a deter!ination of that court
upon the sa!e sub/ect-!atter other#ise than
upon such a reference,
The =rder in Counci created an entire% ne#
/urisdiction in a particuar court of the coon% for
the purpose of ta<ing out of the 5egisati$e
Counci( #ith its o#n consent( and $esting in
that court the $er% pecuiar /urisdiction #hich
had e)isted in the counci itsef of deter!ining
the status of those #ho cai!ed to be !e!bers
of the counci( and the deter!ination of that
court #as fina and no appea a% fro! it, The
sa!e principe aso appied #hether or not the
/urisdiction $ested in the particuar court had
pre$ious% been e)ercised b% the egisati$e
bod%,
8er Iiscount Si!onds( at pp, 5*9-590:
AAt once( upon the opening of the appea(
counse for the respondent too< the ob/ection
that no appea a% to 0er .a/est% in Counci
fro! the decision of the Supre!e Court of the
coon% in a !atter affecting !e!bership of the
5egisati$e Counci and conse&uent% affecting
aso !e!bership of the F)ecuti$e Counci and
the office of .inister, 9t #as open to hi! to do
so not#ithstanding that specia ea$e to appea
had been granted,
This ob/ection can con$enient% be e)a!ined
upon the footing that the appeant:s cai! had
been !aintained in its entiret%, Hpon this
footing it appears to their 5ordships that it !ust
be sustained, Adapting the #ords of 5ord Cairns
5,C, in Ti#berge v. $adry" the% are of opinion
that( upon a fair construction of the =rder in
Counci( it does not pro$ide for the decision b%
the Supre!e Court of !ere ordinar% ci$i rights(
but creates an entire% ne# /urisdiction in a
particuar court of the coon% for the purpose of
ta<ing out of the 5egisati$e Counci #ith its o#n
consent and $esting in that court the $er%
pecuiar /urisdiction #hich had e)isted in the
Counci itsef of deter!ining the status of those
#ho cai! to be !e!bers of the Counci, 9f so( it
foo#s that the deter!ination of that court is
fina and that fro! it no appea ies, >or does
this rest on the $aidit% of the assu!ption that
apart fro! section 10 of the =rder in Counci the
&uestion coud be deter!ined b% the Counci
itsef, 9n %e &ilva v. Attorney-General it #as
!ade cear that the sa!e principe appies
#hether or not the /urisdiction $ested in the
particuar court had pre$ious% been e)ercised
b% the egisati$e bod%, As #as said in that case
the dispute is one #hich ;concerns the rights
and pri$ieges of a egisati$e asse!b%( and(
#hether that asse!b% assu!es to decide such
a dispute or it is sub!itted to the deter!ination
of a tribuna estabished for that purpose( the
sub/ect-!atter is such that the deter!ination
!ust be fina( de!anding i!!ediate action b%
the proper e)ecuti$e authorit% and ad!itting no
appea to 0is .a/est% in Counci,; 9t is therefore
unnecessar% to consider #hether( apart fro! the
=rder in Counci( the 5egisati$e Counci coud
itsef ha$e deter!ined such a dispute, 9t is
sufficient that the dispute is of such a character
that the decision of the court to #hich it is
referred !ust be fina, To this effect aso is the
decision of this 7oard in &enanayake v.
!avaratne.
9f( as their 5ordships hod( an appea #oud not
ie fro! a deter!ination of the Supre!e Court
1
upon a reference under section 10 of the =rder
in Counci( e&ua% it cannot ie fro! a
deter!ination of that court upon the sa!e
sub/ect-!atter other#ise than upon such a
reference, Their 5ordships do not entertain an%
doubt upon the correctness of the decision of
the Supre!e Court that the appeant coud not
co!petent% !aintain the proceedings in an%
for!, The% on% add that( if he coud( no appea
#oud ie, The% find it unnecessar% to add an%
obser$ations upon the so!e#hat cr%ptic #ords
in section 10 of the =rder( ;in accordance #ith
the pro$isions of an% a# in force in the Coon%,;
The% cannot afford an% assistance to the
appeant,C
A,,eal 1y s,e($al lea+e $n (r$m$nal matters
Esnouf v The Attorney General of Jersey
21**+3 * App,Cas, +01
8er 5ord 7ac<burn( at p, +0*:
AThere are strong grounds for sa%ing it #oud
not be right to grant an appea in a cri!ina case
in "erse%( but at the sa!e ti!e their 5ordships
bear in !ind #hat 7aron 8ar<e said at the end
of Ames' (ase (1), After sa%ing that the a# as
to cri!ina appeas in "erse% had been brought
to their notice( he sa%s: ;4e are disposed to sa%
that #e ought not to ha$e reco!!ended 0er
.a/est% to ha$e ao#ed the appea( but #e are
not disposed to sa% that #e ha$e not the po#er
so to ha$e done( as 0er .a/est% is the head of
/ustice( and #e are sitting here( not !ere% as a
/udicia bod%( but as 8ri$% Counciors( and the
!atter of the for!er petition #as referred to us
genera%, 7ut #e are fu% a#are of the
difficuties #hich #e shoud entai on ourse$es if
#e #ere to grant appeas in !atters of cri!ina
prosecutions(; and then he sa%s that in that
particuar case the% certain% ought not to ha$e
done it, Their 5ordships no# repeat that
cautious anguage, 4e do not sa% that in no
case #hate$er( e$en in an appea fro! "erse% in
a cri!ina !atter( #oud it be the dut% of this
7oard to ad$ise 0er .a/est% to grant an appea'
#e do not sa% under #hat circu!stances it
!ight be ad$isabe so to ad$ise 0er .a/est%( but
#e do sa%( repeating the anguage of 7aron
8ar<e used !an% %ears ago( that it shoud be
done $er% cautious%( and after great
consideration,C
In re Abraham Dillet 21**63 12 App,Cas 159
8er 5ord 7ac<burn( at p 166:
A9n Falkland )slands (o. v. The Qeen (1)( it is
said( ;it !a% be assu!ed that the Jueen has
authorit% b% $irtue of her prerogati$e to re$ie#
the decisions of a coonia Courts( #hether the
proceedings be of a ci$i or cri!ina character(
uness 0er .a/est% has parted #ith such
authorit%, 7ut the incon$enience of entertaining
such appeas in cases of a strict% cri!ina
nature is so great( the obstruction #hich it
#oud offer to the ad!inistration of /ustice in the
coonies is so ob$ious( that it is $er% rare% that
appications to this 7oard si!iar to the present
ha$e been attended b% success,;
9n this state!ent of the genera practice their
5ordships agreeE,, .r, Diet ought to be
per!itted on appea to she#( if he can( that on
the grounds stated in his thirteenth reason the
con$iction #as obtained in a !anner so
unsatisfactor% that the con$iction aone ought
not to be concusi$e as a ground for stri<ing hi!
off the ros,C
8er 5ord 4atson( at p, 166:
AThis appea is brought b% Abraha! .aor%
Diet( of the 9nner Te!pe( barrister-at-a#(
against a $erdict returned b% a /ur%( on the 6th
of Septe!ber( 1**1( finding hi! guit% of the
cri!e of per/ur% before 4iia! Anthon%
.usgra$e Sheriff( #ho #as at that ti!e Chief
"ustice of the Supre!e Court of 7ritish
0onduras' and aso against a conse&uentia
order of the Chief "ustice( dated the 26th of
.arch( 1**5( directing the appeant to be struc<
off the ist of practitioners of that Court, Such
appeas are of rare occurrence' because the rue
has been repeated% aid do#n( and has been
in$ariab% foo#ed( that 0er .a/est% #i not
re$ie# or interfere #ith the course of cri!ina
proceedings( uness it is she#n that( b% a
disregard of the for!s of ega process( or b%
so!e $ioation of the principes of natura
/ustice( or other#ise( substantia and gra$e
in/ustice has been done,C
T!e *r$+y Co'n($l and lo(al (ond$t$ons
ange v At!inson 8ri$% Counci Appea no 61
of 199*
See case notes on 4or<sheet >o, 2
"asdeo Panday v #enneth Gordon 220053
H@8C +6
The -espondent( @enneth Bordon( sued the
Appeant( 7asdeo 8anda%( the for!er 8ri!e
.inister( in defa!ation for #ords spo<en in an
address dei$ered at Chandernagore fro! a
prepared te)t, The address asted about ten
!inutes, The the!e of the address #as the
need for nationa unit%, The !ateria part #as
as foo#s:
AAs %ou /oin !e in this crusade for nationa
unit% %ou #i !eet !an% peope #ho do not
#ant nationa unit%, The% are the ones #ho
in the past ha$e benefited and thri$ed on
!aintaining di$ision of our societ%, 9 ca
the! the pseudo racists,
9 ca the! the pseudo racists because the%
are not rea racists, -ea racists are peope
#ho oo< after their race, These feas use
5
race on% to oo< after the% sef, The% are
pseudo racists, So 9 sa% the pseudo racists
#ho ha$e di$ided the societ% to !aintain the
poitica po#er, And e$en no# the% are doing
so in the hope of poitica sur$i$a, The @en
Bordons #ho #ant to !aintain his
!onopoistic ad$antage o$er his co!petitors
in the !edia,
.% brothers and sisters( the% co!e in !an%
shapes and siKes, The% do not #ant change(
the% continue to resist nationa unit%, 4e
pass a#s to dea #ith cri!inas( the%
conde!n us, 4e sign an agree!ent #ith the
A!ericans to dea #ith drug ords( the%
conde!n us, ,,, 4e tr% to change H-8( the%
accuse us of racis!, 9f so!eone gets fired
fro! a state enterprise because ,,, he is
corrupt( the% screa!, The% doh #ant
change( the% #ant to continue in their od
#a%s,C
The tria /udge hed that the ordinar% istener
#oud ha$e concuded that in his address the
8ri!e .inister #as caing .r Bordon a pseudo-
racist #ho used racis! to !aintain di$ision in
societ% and in order to !aintain a co!!ercia
ad$antage o$er his co!petitors in the !edia
business, The /udge hed this #as defa!ator%
and that these #ords #ere spo<en of .r Bordon
in the conduct of his !edia business, So the
sander #as actionabe #ithout proof of specia
da!age, 0e a#arded da!ages in the su! of
L600(000,00,
The !a/orit% of the Court of Appea uphed the
tria /udges decision on iabiit% but $aried his
a#ard of da!ages to L+00(000,00, The Chief
"ustice( in dissent( #as of the $ie# that the
#ords of #hich .r Bordon co!pained #ere not
defa!ator%, The ordinar% reader #oud not
thin< .r Bordon fe #ithin the 8ri!e .inisterMs
definition of pseudo-racist, F$en if he did that
#oud not o#er .r Bordon in the e%es of right-
thin<ing !e!bers of societ% in Trinidad and
Tobago #here Aracia surs are accepted as
co!!onpaceC,
The 8ri$% Counci uphed the decision of the
Court of Appea,
8er 5ord >ichos( at para 10:
AThe sub!ission !ade on behaf of .r 8anda%
#as that on these points the Chief "usticeMs
approach #as to be preferred, Their 5ordships
are unabe to agree, =n ground (2) the tria
/udgeMs $ie# of ho# the #ords #oud ha$e been
understood b% an ordinar% istener( set out
abo$e( #as not chaenged before their
5ordships( and right% so, 4hether #ords
bearing that !eaning( and uttered in the conte)t
in #hich the% #ere said( #oud tend to o#er .r
Bordon in the esti!ation of right-thin<ing
!e!bers of societ% is a &uestion of fact, =n
that &uestion of fact there are concurrent
findings of the tria /udge and the !a/orit% of the
Court of Appea in fa$our of .r Bordon, 4arner
"A recognised that Ain this societ% there is a
tendenc% to e)aggerateC( but she hed that the
attac< on .r Bordon A#ent far be%ond that
#hich is acceptabe in an% conte!porar%
societ%C, 0a!e-S!ith "A said that a racist A#i
in the e%es of the pubic be conde!ned for his
practice of racis!C, The Chief "ustice too< a
!ore robust approach, 7ut that is not a
sufficient reason for their 5ordshipsM 7oard to
depart fro! the $ie#s of the !a/orit% and the
tria /udge, 0o# #ords of this character #oud
be understood( and #hat effect such #ords
#oud ha$e on those #ho heard the!( are
!atters on #hich oca courts are far better
paced than their 5ordships,C
And at paras 2*-+0:
ADa!ages
2*, Dr -a!saho%e SC sub!itted that the
da!ages( e$en as reduced b% the Court of
Appea( #ere e)cessi$e, F$en as reduced this
#as one of the highest a#ards of da!ages e$er
!ade in Trinidad and Tobago in a ibe action,
7ut( he as<ed rhetorica%( for #hat #as such a
arge a#ard !adeN There #as no aegation of
briber% or corruption, There #as no e$idence of
pecuniar% oss, There #as no e$idence of
ps%chiatric in/ur%, There #as no cai! for
specia da!age, 0a!e-S!ith "A obser$ed that
the e$idence does not re$ea that .r Bordon
re!ained an%thing other than a successfu
business!an( high% respected throughout the
Caribbean in the !edia fied,
29, Attracti$e% though these sub!issions
#ere presented and eaborated their 5ordships
are not persuaded, The seriousness of a ibe
and the &uantification of an a#ard are !atters
#here /udges #ith <no#edge of oca conditions
are !uch better paced than their 5ordshipsM
7oard, Thus 0a!e-S!ith "A noted that a#ards
in Trinidad and Tobago ha$e tended to be on the
conser$ati$e side o$er the %ears( probab%
because defa!ation actions ha$e not been as
proific as in other /urisdictions, 0o#e$er ti!es
ha$e changed, The press( he noted( no onger
e)hibit the restraint nor!a% associated #ith
responsibe /ournais!, So( he said( it is of itte
surprise that in 19*9 in Frank &olomon v
Trinidad *blishing (o $td (unreported) Ci$ App
125 of 19*6 the Court of Appea of Trinidad and
Tobago decided to Araise the barC,
+0, Gor their part their 5ordships can detect
no indication that #hen reducing the tria
/udgeMs a#ard in the present case and
substituting the a!ount of L+00(000 the
!a/orit% of the Court of Appea !isdirected
the!se$es, 0a!e-S!ith "A said he had Ano
doubt #hatsoe$er that 2.r BordonMs3 feeings
#ere serious% in/ured and his reputation
tarnished to so!e e)tentC, 0e noted that
6
#hate$er oss .r Bordon !a% ha$e e)perienced
A#oud ha$e been cushioned b% the outpouring
of support he recei$ed fro! the !edia(,,, 2in
Trinidad and Tobago3 and abroadC, The in/ur%
to his reputation #as not irreparabe, The tria
/udgeMs a#ard #as at the higher end of the
scae, An a#ard of L+00(000 #as !ore
appropriate and fair to co!pensate .r Bordon
and $indicate his reputation( bearing in !ind
that the atter ob/ecti$e had aread% arge% been
achie$ed, Their 5ordships consider this #as a
baanced su!!ar% of the position,C
T!e l$1eral )'r$s,r'den(e o% t!e *r$+y
Co'n($l
$inister of %ome Affairs v Fisher 219*03 A,C,
+19
Section 11 of the Constitution of 7er!uda
pro$ides:
;(5) Gor the purposes of this section( a
person sha be dee!ed to beong to
7er!uda if that person - (a) possesses
7er!udian status',,, (c) is the #ife of a
person to #ho! either of the foregoing
paragraphs of this subsection appies not
i$ing apart fro! such person,,,' or (d) is
under the age of 1* %ears and is the chid(
stepchid or chid adopted in a !anner
recognised b% a# of a person to #ho! an%
of the foregoing paragraphs of this subsection
appies,;
The "a!aican !other of four iegiti!ate chidren
a born in "a!aica !arried a 7er!udian in
1962, The !other and the chidren too< up
residence #ith the husband in 7er!uda in 1965,
At a !ateria ti!es the chidren #ere under 1*,
9n 1966 the .inister of 5abour and 9!!igration
ordered the chidren to ea$e 7er!uda, The
!other and her husband appied to the Supre!e
Court to &uash the order and for a decaration
that the chidren #ere to be dee!ed to beong
to 7er!uda The Supre!e Court refused a
decaration on the ground that the chidren #ere
iegiti!ate,
=n appea b% the !other and her husband the
Court of Appea hed b% a !a/orit% that the
chidren #ere to be dee!ed to beong to
7er!uda b% $irtue of section 11 (5) (d) of the
Constitution,
=n appea b% the .inister of 0o!e Affairs
(for!er% the .inister of 5abour and
9!!igration) and the .inister of Fducation: -
Held" (1) that a constitutiona instru!ent shoud
not necessari% be construed in the !anner and
according to the rues #hich appied to Acts of
8aria!ent and( therefore the presu!ption
appicabe to statutes concerning propert%(
succession and citiKenship that ;chid; !eant
;egiti!ate chid; did not app%'
(2) That( athough the !anner of interpretation
of a constitutiona instru!ent shoud gi$e effect
to the anguage used( recognition shoud aso be
gi$en to the character and origins of the
instru!ent' that( since section 11 of the
Constitution #as one of the sections deaing #ith
the funda!enta rights and freedo!s of an
indi$idua and subsection (5) (d) in its conte)t
#as a cear recognition of the unit% of the fa!i%
as a group and acceptance that chidren shoud
not be separated fro! a group #hich beonged
to 7er!uda( ;chid; in the subsection #as not to
be restricted in its !eaning and the !other and
her husband #ere entited to a decaration that
the chidren #ere dee!ed to beong to
7er!uda,
8er 5ord 4iberforce( at pp, +2*-+29:
A4e are concerned #ith a Constitution( brought
into force certain% b% Act of 8aria!ent( the
7er!uda Constitution Act 1966 Hnited @ingdo!(
but estabished b% a sef-contained docu!ent
set out in Schedue 2 to the 7er!uda
Constitution =rder 196* (Hnited @ingdo! S,9,
196* >o, 1*2), 9t can be seen that this
instru!ent has certain specia characteristics, 1,
9t is( particuar% in Chapter 9( drafted in a broad
and a!pe st%e #hich a%s do#n principes of
#idth and generait%, 2, Chapter 9 is headed
;8rotection of Gunda!enta -ights and Greedo!s
of the 9ndi$idua,; 9t is <no#n that this chapter,
as si!iar portions of other constitutiona
instru!ents drafted in the post-coonia period(
starting #ith the Constitution of >igeria( and
incuding the Constitutions of !ost Caribbean
territories( #as great% infuenced b% the
Furopean Con$ention for the 8rotection of
0u!an -ights and Gunda!enta Greedo!s
(195+) (C!d, *969), That Con$ention #as
signed and ratified b% the Hnited @ingdo! and
appied to dependent territories incuding
7er!uda, 9t #as in turn infuenced b% the Hnited
>ations: Hni$ersa Decaration of 0u!an -ights
of 191*, These antecedents( and the for! of
Chapter 9 itsef( ca for a generous
interpretation a$oiding #hat has been caed
;the austerit% of tabuated egais!(; suitabe to
gi$e to indi$iduas the fu !easure of the
funda!enta rights and freedo!s referred to, +,
Section 11 of the Constitution for!s part of
Chapter 9, 9t is thus to ;ha$e effect for the
purpose of affording protection to the aforesaid
rights and freedo!s; sub/ect on% to such
i!itations contained in it ;being i!itations
designed to ensure that the en/o%!ent of the
said rights and freedo!s b% an% indi$idua does
not pre/udice,,, the pubic interest,;
4hen therefore it beco!es necessar% to
interpret ;the subse&uent pro$isions of; Chapter
9 - in this case section 11 - the &uestion !ust
ine$itab% be as<ed #hether the appeants:
pre!ise( funda!enta to their argu!ent( that
these pro$isions are to be construed in the
6
!anner and according to the rues #hich app%
to Acts of 8aria!ent( is sound, 9n their
5ordships: $ie# there are t#o possibe ans#ers
to this, The first #oud be to sa% that(
recognising the status of the Constitution as( in
effect( an Act of 8aria!ent( there is roo! for
interpreting it #ith ess rigidit%( and greater
generosit%( than other Acts( such as those #hich
are concerned #ith propert%( or succession, or
citiKenship, =n the particuar &uestion this #oud
re&uire the court to accept as a starting point
the genera presu!ption that ;chid; !eans
;egiti!ate chid; but to recognise that this
presu!ption !a% be !ore easi% dispaced, The
second #oud be !ore radica: it #oud be to
treat a constitutiona instru!ent such as this as
sui generis( caing for principes of interpretation
of its o#n( suitabe to its character as aread%
described( #ithout necessar% acceptance of a
the presu!ptions that are ree$ant to egisation
of pri$ate a#,
9t is possibe that( as regards the &uestion no#
for decision( either !ethod #oud ead to the
sa!e resut, 7ut their 5ordships prefer the
second, This is in no #a% to sa% that there are
no rues of a# #hich shoud app% to the
interpretation of a Constitution, A Constitution is
a ega instru!ent gi$ing rise( a!ongst other
things( to indi$idua rights capabe of
enforce!ent in a court of a#, -espect !ust be
paid to the anguage #hich has been used and
to the traditions and usages #hich ha$e gi$en
!eaning to that anguage, 9t is &uite consistent
#ith this( and #ith the recognition that rues of
interpretation !a% app%( to ta<e as a point of
departure for the process of interpretation a
recognition of the character and origin of the
instru!ent( and to be guided b% the principe of
gi$ing fu recognition and effect to those
funda!enta rights and freedo!s #ith a
state!ent of #hich the Constitution co!!ences,
9n their 5ordships: opinion this !ust !ean
approaching the &uestion #hat is !eant b%
;chid; #ith an open !ind, 8ri!a facie( the
stated rights and freedo!s are those of ;e$er%
person in 7er!uda,; This generait% underies
the #hoe of Chapter 9 #hich( b% contrast #ith
the 7er!uda 9!!igration and 8rotection Act
1956( contains no reference to egiti!ac%( or
iegiti!ac%( an%#here in its pro$isions, 4hen
one is considering the per!issibe i!itations
upon those rights in the pubic interest, the right
&uestion to as< is #hether there is an% reason to
suppose that in this conte)t( e)ceptiona%(
!atters of birth( in the particuar societ% of
#hich 7er!uda consists( are regarded as
ree$ant,C
Thornhill v Attorney General of Trinidad
and Tobago 219*13 A,C, 61
Section 1 of the Constitution of Trinidad and
Tobago of 1962 pro$ided:
;9t is hereb% recognised and decared that in
Trinidad and Tobago there ha$e e)isted and
sha continue to e)ist,,, the foo#ing hu!an
rights and funda!enta freedo!s( na!e%(
(a) the right of the indi$idua to ife( ibert%(
securit% of the person and en/o%!ent of
propert%( and the right not to be depri$ed
thereof e)cept b% due process of a#' (b) the
right of the indi$idua to e&uait% before the
a# and the protection of the a#,,,;
Section 2 pro$ided:
;Sub/ect to the pro$isions of sections +( 1
and 5 of this Constitution( no a# sha
abrogate( abridge or infringe or authorise the
abrogation( abridge!ent or infringe!ent of
an% of the rights and freedo!s hereinbefore
recognised and decared and in particuar no
Act of 8aria!ent sha - ,,, (c) depri$e a
person #ho has been arrested or detained,,,
(ii) of the right to retain and instruct #ithout
dea% a ega ad$iser of his o#n choice and to
hod co!!unication #ith hi!,,,;
Section + (1) pro$ided:
;Sections 1 and 2 of this Constitution sha
not app% in reation to an% a# that is in
force in Trinidad and Tobago at the
co!!ence!ent of this Constitution,;
Section 6 pro$ided:
;(i) Gor the re!o$a of doubts it is hereb%
decared that if an% person aeges that an% of
the pro$isions of the foregoing sections or
section of this Constitution has been or is
being( or is i<e% to be contra$ened in
reation to hi!( then,,, that person !a% app%
to the 0igh Court for redress,,,;
After a shooting incident( the appeant #as
arrested and ta<en to a poice station, Se$era
re&uests #ere !ade for hi! to be gi$en the
opportunit% of co!!unicating #ith his a#%er
but these re&uests #ere initia% refused, The
on% reason for the refusa #as that the poice
thought that if the appeant #ere ad$ised of his
right not to rep% to their &uestions( the% #oud
be ess i<e% to obtain confessions fro! hi! as
to pre$ious cri!es #hich it #as suspected that
he had co!!itted, 9t #as three da%s after his
arrest and after an identit% parade that the
appeant #as per!itted to co!!unicate #ith
the a#%er, The appeant appied to the 0igh
Court under section 6 of the Constitution for(
inter aia( a decaration that the refusa b% the
poice to ao# hi! to retain( instruct and consut
#ith a ega ad$iser of his o#n choice #as a
contra$ention of his constitutiona right to do so,
The Attorne%-Benera and the poice officers
#ere !ade respondents to the appication, 9t
#as accepted that at the co!!ence!ent of the
Constitution there #as no #ritten enact!ent
conferring the right to consut a a#%er on a
*
person #ho had been a#fu% detained but( in
1965( the /udges of Trinidad and Tobago
adopted the Fngish "udges: -ues of 1961
incuding Appendi) A, The appeant #as granted
a decaration in the 0igh Court that his
constitutiona rights had been infringed but the
respondents: appea to the Court of Appea of
Trinidad and Tobago #as ao#ed,
=n appea b% the appeant to the "udicia
Co!!ittee: -
Held" ao#ing the appea( (1) that section 2 (c)
(ii) of the Constitution of 1962 secured the right
of a detained person to access to a a#%er
#ithout dea%( independent% of an% rights
en/o%ed under the a# at the co!!ence!ent of
the Construction,
(2) That in section 1 of the Constitution the
rights decared to ha$e been en/o%ed in Trinidad
and Tobago referred not on% to de /ure rights of
the indi$idua but to rights en/o%ed b% hi! de
facto as a resut of setted e)ecuti$e poic% or
the !anner in #hich ad!inistrati$e or /udicia
discretion had been e)ercised' that( since
Appendi) A to the "udges: -ues specifica%
decared that the rues did not affect the
principe that an indi$idua shoud be abe to
consut his a#%er at e$er% stage of an
in$estigation( the action of the /udges of
Trinidad and Tobago in adopting Appendi) A
sho#ed that the right to consut a a#%er had
beco!e a !atter of setted practice and(
according%( the appeant:s right #as protected
under section 1 as #e as under section 2 (c)
(ii),
(+) That section + in effect ensured that neither
section 1 nor section 2 repeaed an% rue of a#
appicabe in the countr% at the co!!ence!ent
of the Constitution' that( according%( the onus
a% on the respondents to sho# that the setted
practice of ao#ing an arrested person to
consut a a#%er in accordance #ith the principe
e)pressed in the "udges: -ues #as contrar% to
the a# at the ti!e of the co!!ence!ent of the
Constitution' that the respondents coud not
discharge( and had not discharged( that burden'
and that( since there had been an unreasonabe
dea% before the appeant #as ao#ed access to
his a#%er( his constitutiona right had been
contra$ened,
*er criam. Contra$entions b% the poice of an%
of the hu!an rights or funda!enta freedo!s of
the indi$idua that are recognised b% Chapter 1
of the Constitution fa s&uare% #ithin #hat has
been hed b% the "udicia Co!!ittee in +ahara,
v. Attorney-General of Trinidad and Tobago (!o.
-) 219693 A,C, +*5( +96( to be the a!bit of the
protection afforded b% section 6( $iK,(
contra$entions ;b% the state or b% so!e other
pubic authorit% endo#ed b% a# #ith coerci$e
po#ers,;
8er 5ord Dipoc<( at pp, 6+-61:
A-ees ",A,( athough he considered that the
conduct of the respondents !ight #e ha$e
been a contra$ention of the appeant:s
constitutiona rights under section 1 (a) or
section 1 (b)( found it unnecessar% to !a<e a
positi$e finding on that point( as he #as of
opinion that since a poice officer #as not in his
$ie# a egisator nor a !e!ber of the /udiciar%
nor an agent or !e!ber of the e)ecuti$e(
section 6 of the Constitution did not operate to
gi$e to the appeant an% right to app% to the
0igh Court for redress for an% contra$ention of
his constitutiona rights b% a poice officer, This
#as the on% ground on #hich -ees ",A, ao#ed
the appea,
Their 5ordships do not find it necessar% to
consider to #hat e)tent (if an%)( despite the
pro$isions of the Constitution reating to the
poice force and its officers( the 8oice Ser$ice
Act 1965 and the Cro#n 5iabiit% and
8roceedings Act 1966( the od co!!on a# rue
that those persons #ho at $arious ti!es in
Fngish ega histor% ha$e been responsibe for
appointing a ;constabe; #ere not $icarious%
responsibe for tortious acts done b% hi! in
purported e)ercise of his co!!on a# po#ers of
arrest has sur$i$ed in Trinidad and Tobago as
respects tortious acts #hich do not in$o$e an%
contra$ention of section 1 of the Constitution of
1962, 9t is be%ond &uestion( ho#e$er( that a
poice officer in carr%ing out his duties in reation
to the !aintenance of order( the detection and
apprehension of offenders and the bringing of
the! before a /udicia authorit% is acting as a
pubic officer carr%ing out an essentia e)ecuti$e
function of an% so$ereign state - the
!aintenance of a# and order or( to use the
e)pression origina% used in Fngand(
;preser$ing the @ing:s peace,; 9t is aso be%ond
&uestion that in perfor!ing these functions
poice officers are endo#ed #ith coerci$e po#ers
b% the co!!on a#( e$en apart fro! an%
statute, Contra$entions b% the poice of an% of
the hu!an rights or funda!enta freedo!s of
the indi$idua that are recognised b% Chapter 9
of the Constitution thus fa s&uare% #ithin #hat
has since been hed b% the "udicia Co!!ittee in
+ahara, v. Attorney-General of Trinidad and
Tobago (!o. -) 219693 A,C, +*5( +96( to be the
a!bit of the protection afforded b% section 6(
$iK, contra$entions ;b% the state or b% so!e
other pubic authorit% endo#ed b% a# #ith
coerci$e po#ers,; 9n this conte)t ;pubic
authorit%; !ust be understood as e!bracing
oca as #e as centra authorities and incuding
an% indi$idua officer #ho e)ercises e)ecuti$e
functions of a pubic nature, 9ndeed( the $er%
nature of the e)ecuti$e functions #hich it is the
dut% of poice officers to perfor! is i<e% in
practice to in$o$e the co!!onest ris< of
contra$ention of an indi$idua:s rights under
section 1 (a) and (b)( through o$erKeaousness
in carr%ing out those duties,
9
Their 5ordships do not doubt that if the appea
had co!e before the Court of Appea after the
/udg!ent of the "udicia Co!!ittee in +ahara,
instead of before( neither -ees ",A, nor either of
the other !e!bers of the Court (0%atai C,",
and Corbin ",A,) #ho e)pressed their agree!ent
#ith his /udg!ent #oud ha$e adopted( as a
ground for ao#ing the appea( that section 6 of
the Constitution had no appication to
contra$entions of hu!an rights or funda!enta
freedo!s b% the poice,C
Attorney General of Trinidad and Tobago v
&hiteman 219913 2 A,C, 210
7% paragraph *(a) of the Fngish "udges: -ues
1961( adopted b% the /udges in Trinidad and
Tobago in 1965( a person in custod% #as to be
ao#ed to co!!unicate #ith his ega ad$iser(
and paragraph *(b) pro$ided that persons in
custod% shoud be infor!ed ora% of the rights
and faciities a$aiabe to the! and that notices
describing the! shoud be dispa%ed at poice
stations and dra#n to their attention, Section 1
of the Constitution of the -epubic of Trinidad
and Tobago 1966 recognised and decared
funda!enta rights and freedo!s incuding the
right of the indi$idua to the protection of the
a#, Section 5(2) pro$ided that 8aria!ent !ight
not:
;(c) depri$e a person #ho has been arrested
or detained , , , (ii) of the right to retain and
instruct #ithout dea% a ega ad$iser of his
o#n choice and to hod co!!unication #ith
hi! , , , (h) depri$e a person of the right to
such procedura pro$isions as are necessar%
for the purpose of gi$ing effect and protection
to the aforesaid rights and freedo!s,;
The appicant #as arrested b% poice officers and
detained( but he #as e$entua% reeased
#ithout charge, 0e appied to the 0igh Court for
redress b% #a% of originating !otion pursuant to
section 11(1) of the Constitution aeging( inter
aia( that #hie in custod% he had not been
infor!ed of his right to co!!unicate #ith a
a#%er, 9t #as agreed that the /udge shoud first
decide #hether a person upon arrest or
detention b% the poice had a constitutiona right
to be infor!ed of his constitutiona right to
retain and instruct #ithout dea% a ega ad$iser
of his o#n choice and to hod co!!unication
#ith hi!, The /udge dis!issed the !otion
hoding that there #as no such constitutiona
right( but the Court of Appea re$ersed that
decision,
=n appea b% the Attorne%-Benera and the
Co!!issioner of 8oice to the "udicia
Co!!ittee:-
Held( dis!issing the appea( that section 5(2)(c)
(ii) of the Constitution conferred on a person
arrested or detained the right to co!!unicate
#ith a ega ad$iser but( since that right #oud
be ineffecti$e in certain circu!stances uness
there #as pro$ision for a procedure #hereb% he
#as infor!ed of it( section 5(2)(h) ga$e hi! the
right to a procedura pro$ision such as that
pro$ided b% paragraph *(b) of Appendi) 7 to the
"udges: -ues 1961 and the right to ha$e that
procedure foo#ed' that( in an% e$ent( the
procedure prescribed in paragraph *(b) had
beco!e a setted practice foo#ed before the
Constitution of 1966 ca!e into operation( and so
it #as part of the protection of the a# afforded
to the indi$idua under section 1(b) of the
Constitution' and that( therefore( on the proper
construction of section 5(2)(h) of the
Constitution and on the basis of a setted
practice( a person arrested or detained had a
constitutiona right to be infor!ed of his right to
co!!unicate #ith a ega ad$iser as soon as
possibe and before interrogation' that( further(
it #as the dut% of poice officers to ensure his
understanding of his right( and the !ere dispa%
of notices in the poice station #as insufficient,
8er 5ord @eith( at pp, 216-21*:
AThe anguage of a Constitution fas to be
construed( not in a narro# and egaistic #a%(
but broad% and purposi$e%( so as to gi$e effect
to its spirit( and this is particuar% true of those
pro$isions #hich are concerned #ith the
protection of hu!an rights, 9n this case the right
conferred b% section 5(2)(c)(ii) upon a person
#ho has been arrested and detained( na!e%
the right to co!!unicate #ith a ega ad$iser( is
capabe in so!e situations of being of itte $aue
if the person is not infor!ed of the right, .an%
persons !ight be &uite ignorant that the% had
this constitutiona right or( if the% did <no#(
!ight in the circu!stances of their arrest be too
confused to bring it to !ind, Section 5(2)(h) is
proper% to be regarded as intended to dea #ith
that <ind of situation as #e as other <inds of
situation #here so!e different constitutiona
rights !ight other#ise be at ris< of not being
gi$en effect and protection, There are no
grounds for gi$ing a restricted !eaning to the
#ords ;procedura pro$isions,; A procedure is a
#a% of going about things( and a pro$ision is
so!ething #hich a%s do#n #hat that #a% is to
be, Bi$en that there are so!e situations #here
the right to co!!unicate #ith a ega ad$iser
#i not be effecti$e if no pro$ision e)ists for
so!e procedure to be foo#ed #ith a $ie# to
deaing #ith these situations( there is a cear
necessit% that such pro$ision shoud be !ade,
So section 5(2)(h) gi$es a right to such
pro$ision, Their 5ordships further consider that(
b% necessar% i!pication( there is a right to ha$e
the procedure foo#ed through, A procedure
#hich e)ists on% on paper( and is not put into
practice( does not gi$e practica protection,C
$ahara' v Attorney General of Trinidad and
Tobago ()o* +, 219693 A,C, +*5
10
=n Apri 16( 1965( the appeant( a barrister
engaged in a case in the 0igh Court( #as
co!!itted to prison for se$en da%s for conte!pt
on the order of the /udge, The appeant
i!!ediate% appied e) parte b% notice of
!otion to the 0igh Court under section 6 of the
Constitution na!ing the Attorne%-Benera as
respondent and cai!ing redress for
contra$ention of his right( protected b% section 1
(a) of the Constitution( not to be depri$ed of his
ibert% sa$e b% due process of a#, =n "u% 2+(
1965( Scott ", dis!issed the !otion and ordered
the appeant to ser$e his ter! of i!prison!ent,
After ser$ing the ter! the appeant appeaed
fro! the decision of Scott ", to the Court of
Appea, 4hie that appea #as pending he
obtained ea$e to appea to the "udicia
Co!!ittee of the 8ri$% Counci against the
co!!itta order of Apri 16, =n "u% 26( 1966(
the "udicia Co!!ittee &uashed the order on the
grounds that there had been a funda!enta
faiure of natura /ustice in that before !a<ing
the order the /udge had not tod the appeant
pain% enough #hat he had done to enabe hi!
to e)pain or e)cuse his conduct, =n Apri 29(
1966( the Court of Appea b% a !a/orit%
dis!issed the appeant:s appea fro! Scott ",:s
decision of "u% 2+( 1965( on the ground that the
faiure of the /udge to specif% the nature of the
conte!pt did not contra$ene a right protected
b% section 1 of the Constitution,
=n the appeant:s appea to the "udicia
Co!!ittee:-
Held" ao#ing the appea (b% a !a/orit%)( (1)
that section 6 (2) (a) of the Constitution ga$e
the 0igh Court origina /urisdiction to deter!ine
an% appication b% a person #ho aeged that
there had been a contra$ention of the hu!an
rights and funda!enta freedo!s to #hich he
#as entited under section 1 (a)' according% the
0igh Court had /urisdiction to in&uire #hether
the procedure adopted before the appeant #as
co!!itted to prison for conte!pt constituted a
contra$ention of his rights under section 1 (a),
(2) That Chapter 1 of the Constitution protected
the rights of indi$iduas against infringe!ent b%
the state or a pubic authorit% of the rights
decared b% section 1 #hich #ere in e)istence
before the Constitution ca!e into force and that
section + did not egiti!ise an% infringe!ent of
those rights regarded b% pre-e)isting a# as
una#fu' that( according%( since the co!!itta
order of Apri 16( 1965( #as in breach of the
co!!on a# #hich had pre$ious% go$erned
conte!pt of court in that it #as contrar% to
natura /ustice because the appeant had not
been gi$en an opportunit% to ans#er the charge
against hi!( there had been a contra$ention of
the appeant:s rights under the Constitution b%
depri$ing hi! of his ibert% #ithout due process
of a# for #hich he #as entited to redress under
section 6,
(+) That section 6 of the Constitution #as
intended to create a ne# re!ed% for the
contra$ention of constitutiona rights #ithout
reference to e)isting re!edies' that the #ord
;redress; in its conte)t bore its ordinar%
!eaning of reparation or co!pensation(
incuding !onetar% co!pensation' and that
athough the cai! #as not a cai! in pri$ate
a# for da!ages for tort( but #as a cai! in
pubic a# for co!pensation( that co!pensation
shoud be !easured in ter!s of the depri$ation
of ibert%( incuding conse&uentia oss of
earnings and reco!pense for the incon$enience
and distress suffered during detention,
"udg!ent of the Court of Appea of Trinidad and
Tobago re$ersed,
iyanage v The Queen 219663 1 A,C, 259
The Cri!ina 5a# (Specia 8ro$isions) Act( >o, 1
of 1962( passed b% the 8aria!ent of Ce%on on
.arch 16( 1962( contained substantia
!odifications of the Cri!ina 8rocedure Code(
inter aia( b% purporting to egaise e) post facto
the detention for 60 da%s of an% persons
suspected of ha$ing co!!itted an offence
against the State( b% #idening the cass of
offences for #hich tria #ithout a /ur% b% three
/udges no!inated b% the .inister of "ustice
coud be ordered( b% ao#ing arrest #ithout a
#arrant for #aging #ar against the Jueen and
prescribing ne# !ini!u! penaties for that
offence and for conspiring to #age #ar against
the Jueen and o$era#e the go$ern!ent b%
cri!ina force( and b% #idening the scope of that
offence, The Act aso pro$ided for the ad!ission
in e$idence of certain confessions and
state!ents to the poice inad!issibe under the
F$idence Code,
The Act #as e)pressed to be retrospecti$e to
co$er an aborti$e coup d:etat on "anuar% 26(
1962( in #hich the appeants too< part( and #as
to cease to be operati$e after the concusion of
a ega proceedings connected #ith or
incidenta to an% offence against the state
co!!itted on or about the date of the coup or
fro! one %ear after the date of the
co!!ence!ent of the Act( #hiche$er #as ater,
The Cri!ina 5a# Act( >o, +1 of 1962(
substituted the Chief "ustice for the .inister of
"ustice as the person to no!inate the three
/udges before #ho! tria #ithout a /ur% !ight
be ordered( but eft unaffected other pro$isions
of the for!er Act( incuding those abo$e
su!!arised,
9n Apri( 1965( the Supre!e Court of Ce%on(
consisting of three /udges no!inated b% the
Chief "ustice( con$icted the appeants of (1)
conspiring to #age #ar against the Jueen' (2)
conspiring to o$era#e( b% !eans of cri!ina
force or the sho# of cri!ina force( the
Bo$ern!ent of Ce%on' and (+) conspiring to
11
o$erthro# other#ise than b% a#fu !eans the
Bo$ern!ent of Ce%on b% a# estabished( and
sentenced the! to ten %ears: rigorous
i!prison!ent and forfeiture of a goods( the
!ini!u! prescribed b% the Act >o, 1 of 1962,
=n appea to the 8ri$% Counci on the ground
that the egisation of 1962 #as utra $ires
Held" that the Acts( directed as the% #ere to the
tria of particuar prisoners charged #ith
particuar offences on a particuar occasion(
in$o$ed a usurpation and infringe!ent b% the
egisature of /udicia po#ers inconsistent #ith
the #ritten Constitution of Ce%on( #hich( #hie
not in ter!s $esting /udicia functions in the
/udiciar%( !anifested an intention to secure in
the /udiciar% a freedo! fro! poitica( egisati$e
and e)ecuti$e contro and( in effect( eft
untouched the /udicia s%ste! estabished b% the
Charter of "ustice( 1*++, The sience of the
Constitution as to the $esting of /udicia po#er
#as consistent #ith its re!aining #here it #as
and inconsistent #ith an% intention that it shoud
pass to or be shared b% the e)ecuti$e or the
egisature, The Acts #ere according% utra $ires
and $oid( and the con$ictions coud not stand,
T!e not so l$1eral )'r$s,r'den(e o% t!e *r$+y
Co'n($l
-obinson v The Queen 219*53 A,C, 956
The defendant #as arrested in August 196* and
charged #ith !urder, 0e did not app% for ega
aid, The !ain prosecution #itness ha$ing
disappeared the case #as ad/ourned on 19
occasions on si) of #hich the tria date had been
fi)ed( and the defendant #as usua%
represented b% t#o counse #ho #ere on the
record, 9n "anuar% 19*1 the tria #as definite%
fi)ed for a date in .arch #ith consent of the
defendant:s counse, 4hen the tria began in the
Circuit Court Di$ision of the Bun Court the
Cro#n:s principa #itness #as present but the
defendant:s counse #ere absent, 9n&uiries
re$eaed that the% intended to be there the
foo#ing da% and the /udge e$entua% started
the tria, The ne)t !orning one of the
defendant:s counse appied for per!ission for
the! both to #ithdra# because the% had not
been fu% paid( and for an ad/ourn!ent for a
ega aid assign!ent, The /udge offered that
counse the ega aid assign!ent but he decined
it, 7oth appications #ere refused b% the /udge
#ho feared that the #itness !ight not be
a$aiabe if the hearing #as ad/ourned, The
defendant:s counse #ithdre# and the tria
continued #ithout the defendant being ega%
represented, 0e #as con$icted of !urder and
sentenced to death, 0e appied to the Court of
Appea of "a!aica for ea$e to appea against
con$iction and sentence but his appications
#ere refused,
=n the defendant:s appea to the "udicia
Co!!ittee:-
Held" dis!issing the appea (5ord Scar!an and
5ord Fd!und-Da$ies dissenting)( that the right(
under the pro$isions of the Constitution of
"a!aica to ega representation of choice #as
not an absoute right in that it #as not
necessar% for an ad/ourn!ent a#a%s to be
granted in order to ensure that an% defendant in
a cri!ina !atter #ho desired ega
representation #as du% represented' that in
e)ercising his discretion #hether or not to grant
an ad/ourn!ent for that purpose the /udge had
to consider other ree$ant !atters incuding the
present and future a$aiabiit% of #itnesses( and
since the absence of ega representation #as
caused b% the conduct of the defendant:s
counse and aso b% the defendant:s faiure to
ensure that the% #ere paid #ithin a reasonabe
ti!e before tria or other#ise to app% in
ad$ance for ega aid( the /udge:s refusa to
ad/ourn the tria to enabe the defendant to
instruct an aternati$e ega representati$e did
not depri$e the defendant of his funda!enta
right under section 20(6)(c) of the Constitution
to be per!itted to defend hi!sef b% a ega
representati$e of his o#n choice( e$en though
as a resut he #as unrepresented at his tria for
a capita offence' and that( in a the
circu!stances( no !iscarriage of /ustice had
occurred and the defendant had been proper%
con$icted of !urder,
Decision of the Court of Appea of "a!aica
affir!ed,
.ollymore v Attorney General of Trinidad
and Tobago 219603 A,C, 5+*
The appeants #ere in 1965 e!po%ees of an
oi co!pan%( and the%( #ith other feo#
e!po%ees in the co!pan%( #ere !e!bers of a
registered trade union, This union bargained
on behaf of its !e!bers #ith the oi co!pan%
on &uestions of pa% and conditions, 9n .arch(
1965( the union desired to ater the then
current coecti$e agree!ent on these !atters(
and sub!itted to the co!pan% a state!ent of
the changes re&uired, >egotiations foo#ed
but #ithout an% agree!ent resuting and( in
"u%( 1965( the co!pan% bro<e off the
negotiations b% etter, 9n the ordinar% #a% it
#oud ha$e been e)pected that industria
action #oud foo#( but the union #as unabe
to ta<e industria action and ca its !e!bers
out on stri<e for the purpose of enforcing their
de!ands because of the 9ndustria Stabiisation
Act( 1965( #hich had recei$ed the -o%a
Assent on .arch 20( 1965, The 9ndustria
Stabiisation Act( 1965( i!posed a s%ste! of
co!pusor% arbitration b% an industria court
set up under the Act for the sette!ent of
disputes( and prohibited an% trade union
caing a stri<e in contra$ention of its
pro$isions, The appeants cai!ed that this Act
12
infringed their freedo! of association( decared
b% section 1 of the Constitution of Trinidad and
Tobago
1
to be one of the funda!enta
freedo!s ;#hich ha$e e)isted and sha
continue to e)ist; and the% reied on section 2
#hich pro$ided that no a# shoud ;abrogate(
abridge or infringe ,,,; that right, The% appied
to the 0igh Court of "ustice of Trinidad and
Tobago for an order decaring that the
9ndustria Stabiisation Act( 1965( #as utra
$ires the Constitution of Trinidad and Tobago
and #as nu and $oid and of no effect, The
0igh Court dis!issed the appication and the%
appeaed to the Court of Appea( #ho uphed
the decision of the 0igh Court, =n appea to
the 8ri$% Counci:-
Held" dis!issing the appea( that the 9ndustria
Stabiisation Act( 1965( undoubted% abridged
the freedo! to bargain coecti$e% and the
freedo! to stri<e( but these coud not be
e&uated #ith the right of freedo! of
association #hich #as not eft e!pt% of
#orth#hie content since nu!erous other
rights re!ained untouched,
8er 5ord Dono$an( at pp, 516-51*:
AThe appeants no# cai! that the Act is $oid
since it infringes their freedo! of association
#hich section 1 of the Constitution decares has
e)isted ;and sha continue to e)ist;: and an%
abrogation( abridg!ent or infringe!ent of #hich
is forbidden b% section 2( sa$e in circu!stances
#hich ad!itted% do not e)ist in the present
case,
The argu!ent runs thus: ;Greedo! of
Association; !ust be construed in such a #a%
that it confers rights of substance and is not
!ere% an e!pt% phrase, So far as trade unions
are concerned( the freedo! !eans !ore than
the !ere right of indi$iduas to for! the!: it
e!braces the right to pursue that ob/ect #hich
is the !ain raison d:Otre of trade unions(
na!e%( coecti$e bargaining on behaf of its
!e!bers o$er #ages and conditions of
e!po%!ent, Coecti$e bargaining in its turn is
ineffecti$e uness bac<ed b% the right to stri<e in
the ast resort, 9t is this #hich gi$es reait% to
coecti$e bargaining, According%( to ta<e a#a%
or curtai the right to stri<e is in effect to
abrogate or abridge that freedo! of association
#hich the Constitution confers,
The argu!ent of the respondent is that
;freedo! of association; in section 1 (,) of the
Constitution !eans no !ore than it sa%s( that
persons are free to associate, 9t does not !ean
that the purposes for #hich the% associate( and
the ob/ects #hich in association the% pursue( are
sacrosanct under the Constitution and cannot be
atered or abridged sa$e b% the specia
procedure pro$ided b% section 5,
The &uestion thus posed is therefore si!p% a
&uestion of construction, 7ut the argu!ents
presented for the appeants( based on the
assertion that the right to free coecti$e
bargaining and the right to stri<e are essentia
ee!ents in freedo! of association in trade
unions( ed to a proonged e)a!ination in the
courts beo# as to #hether there is in a# an%
;right; to stri<e, The &uestion does not rea%
arise if the respondent:s contention as abo$e
su!!arised is right: for if ;freedo! of
association; does not of itsef i!port freedo! to
bargain coecti$e% and to do so effecti$e% b%
!eans of a stri<e( it is i!!ateria #hether stri<e
action is or is not the e)ercise of a ;right; or a
;freedo!; or the en/o%!ent of ;an i!!unit%,;
Since( ho#e$er( the !atter #as e)hausti$e%
can$assed in the courts beo#( their 5ordships
!a% sa% that the% are in substantia agree!ent
#ith the ana%sis of the situation #hich
e!erged, 9t #as agreed before their 5ordships
that trade union a# in Trinidad and Tobago #as
the sa!e as trade union a# in Breat 7ritain as
at the date #hen the Trade Disputes Act( 1906(
too< effect, >either before that date nor since
has there been in Breat 7ritain an% e)press
enact!ent b% statute of an% right to stri<e(
athough in certain &uarters such an enact!ent
is sti ad$ocated, At co!!on a# before the
enact!ent of the Trade Hnion Act( 1*61( the
Conspirac% and 8rotection of 8ropert% Act( 1*65(
and the a!end!ent to section + thereof
effected b% section 1 of the Trade Disputes Act(
1906( co!binations of #or<!en to i!pro$e their
#ages and conditions #ere certain% in peri if in
co!bination the% #ithhed their abour or
threatened to do so: but (sub/ect to certain
esoteric &uestions arising out of the decision in
.ookes v. /arnard 219613 A,C, 1129 and sti
unreso$ed b% the Trade Disputes Act( 1965) it
is no# #e recognised that b% reason of the
statutes cited( as #e as b% decisions such as
(rofter Hand 0oven Harris T1eed (o. $td. v.
2eitch 219123 A,C, 1+5 e!po%ees !a% a#fu%
#ithhod their abour in co!bination free fro!
the restrictions and penaties #hich the co!!on
a# for!er% i!posed, 9n this sense there is
;freedo! to stri<e,;
There is no doubt that the freedo! to bargain
coecti$e% has been abridged b% the 9ndustria
Stabiisation Act, Thus 8art 9I of the Act(
e!bod%ing sections 1*-26( pro$ides for the
!a<ing of ;industria agree!ents; bet#een
trade unions and e!po%ers( sub/ect to the
e)a!ination of the sa!e b% the .inister( #ho is
to sub!it the agree!ent to the industria court
for registration( together #ith a notice
containing the ground of an% ob/ection to the
agree!ent #hich he has, The court then hears
and deas #ith such ob/ection, 9t !a% register
the agree!ent #ithout a!end!ent: or #ith
agreed a!end!ents: or it !a% refer the
agree!ent bac< to the parties for further
negotiation, The agree!ent ta<es effect on% if it
is registered b% the court,
1+
There is aso no doubt that the Act abridges the
freedo! to stri<e, 9ndeed( in the case of the
essentia ser$ices aread% !entioned it appears
to abrogate it atogether,
9t !a<es no difference to the foregoing situation
that the Act in section + strengthens the position
of trade unions in reation to coecti$e
bargaining b% i!posing on e!po%ers an
obigation to recognise and negotiate #ith a
union representing 51 per cent, or !ore of their
#or<ers, The &uestion is #hether the
abridg!ent of the rights of free coecti$e
bargaining and of the freedo! to stri<e are
abridg!ents of the right of freedo! of
association,
7oth courts beo# ans#ered the &uestion in the
negati$e' and did so b% refusing to e&uate
freedo! to associate #ith freedo! to pursue
#ithout restriction the ob/ects of the association,
4ooding C,", put the !atter thus:
;9n !% /udg!ent( then( freedo! of
association !eans no !ore than freedo! to
enter into con sensua arrange!ents to
pro!ote the co!!on interest ob/ects of the
associating group, The ob/ects !a% be an% of
!an%, The% !a% be reigious or socia(
poitica or phiosophica( econo!ic or
professiona( educationa or cutura( sporting
or charitabe, 7ut the freedo! to associate
confers neither right nor icence for a course
of conduct or for the co!!ission of acts
#hich in the $ie# of 8aria!ent are ini!ica
to the peace( order and good go$ern!ent of
the countr%,;
9t is( of course( true that the !ain purpose of
!ost trade unions of e!po%ees is the
i!pro$e!ent of #ages and conditions, 7ut these
are not the on% purposes #hich trade unionists
as such pursue, The% ha$e( in addition( in !an%
cases ob/ects #hich are socia( bene$oent(
charitabe and poitica, The ast na!ed !a% be
at ti!es of para!ount i!portance since the
efforts of trade unions ha$e !ore than once
succeeded in securing aterations in the a# to
their ad$antage, 9t is aso of interest to note
#hat the fra!ers of con$ention *6 of the
9nternationa 5abour =rganisation considered to
be co!prised in ;Greedo! of Association,; Hnder
that subheading the con$ention artices 1-5
incusi$e read as foo#s:
;Artice 1, Fach .e!ber of the internationa
5abour =rganisation for #hich this
Con$ention is in force underta<es to gi$e
effect to the foo#ing pro$isions,
Artice 2, 4or<ers and e!po%ers( #ithout
distinction #hatsoe$er( sha ha$e the right to
estabish and( sub/ect on% to the rues of the
organisation concerned( to /oin organisations
of their o#n choosing #ithout pre$ious
authorisation,
Artice +, 1, 4or<ers: and e!po%ers:
organisations sha ha$e the right to dra# up
their constitutions and rues( to eect their
representati$es in fu freedo!( to organise
their ad!inistration and acti$ities and to
for!uate their progra!s, 2, The pubic
authorities sha refrain fro! an% interference
#hich #oud restrict this right or i!pede the
a#fu e)ercise thereof,
Artice 1, 4or<ers: and e!po%ers:
organisations sha not be iabe to be
disso$ed or suspended b% ad!inistrati$e
authorit%,
Artice 5, 4or<ers: and e!po%ers:
organisations sha ha$e the right to estabish
and /oin federations and confederations and
an% such organisation( federation or
confederation sha ha$e the right to affiiate
#ith internationa organisations of #or<ers
and e!po%ers,;
A these rights are eft untouched b% the
9ndustria Stabiisation Act, 9t therefore see!s to
their 5ordships inaccurate to contend that the
abridg!ent of the right to free coecti$e
bargaining and of the freedo! to stri<e ea$es
the assurance of ;freedo! of association; e!pt%
of #orth#hie content,
.oreo$er( trade unions need !ore than
;freedo! of association,; The% need to estabish
an organisation, This in$o$es setting up so!e
<ind of head&uarters( and appointing officers to
!an it, 7ranches !a% aso ha$e to be set up
either in districts #here the union has sufficient
!e!bers( or in particuar pants or offices,
Arrange!ents !ust be !ade for the due
coection( usua% #ee<%( of subscriptions,
-ecognition b% the e!po%er !ust be obtained
as a preude to coecti$e bargaining,
Arrange!ents ha$e to be !ade for industria
action in the e$ent of coecti$e bargaining
faiing either #ho% or part%, A this is
so!ething o$er and abo$e freedo! of
association, 9t in$o$es a union ha$ing freedo!
aso to organise and to bargain coecti$e%: and
it is not surprising( therefore( to find this right
the sub/ect of a separate Con$ention (>o, 9*) of
the 9nternationa 5abour =rganisation,
Their 5ordships according% agree #ith the
courts beo# in their re/ection of the appeants:
!ain argu!ent,C
T!e (ontro+ers$al deat! ,enalty
)'r$s,r'den(e o% t!e *r$+y Co'n($l
Pratt v Attorney General of Jamai/a 219913
2 A,C, 1
The appicants #ere con$icted of !urder in
"anuar% 1969 and sentenced to death, The%
i!!ediate% appied for ea$e to appea but #ere
not granted ega aid unti .a% 19*0, 9n
11
Dece!ber the Court of Appea of "a!aica
dis!issed their appication for reasons to be
gi$en ater, The Bo$ernor-Benera faied to refer
their case to the "a!aican 8ri$% Counci for
ad$ice on #hether the appicants shoud be
e)ecuted or reprie$ed( in accordance #ith
sections 90 and 91 of the Constitution,
1
The first
appicant petitioned the 9nter-A!erican
Co!!ission on 0u!an -ights (;9,A,C,0,-,;) in
19*1( athough the "a!aican Bo$ern!ent #as
not a#are of that unti 19*+, 9n Septe!ber
19*1( foo#ing a re&uest( the Court of Appea
ga$e its reasons for dis!issing the appication
for ea$e to appea, 9n =ctober the 9,A,C,0,-,
re/ected the first appicant:s sub!ission but
reco!!ended that the death sentence be
co!!uted, 9n "anuar% 19*6 he petitioned the
Hnited >ations 0u!an -ights Co!!ittee
(;H,>,0,-,C,;) under the 9nternationa Co$enant
on Ci$i and 8oitica -ights, The appicants
odged notice of intention to petition for specia
ea$e to appea to the "udicia Co!!ittee of the
8ri$% Counci in .arch( and specia ea$e #as
refused in "u%, 9n >o$e!ber the "a!aican 8ri$%
Counci considered the appicants: case for the
first ti!e but did not accede to a re&uest fro!
the H,>,0,-,C, for a sta% of e)ecution, A #arrant
for the e)ecution of the sentences passed on the
appicants #as issued in Gebruar% 19*6, The%
#ere transferred to specia conde!ned ces
ad/acent to the gao#s( but the Bo$ernor-
Benera issued a sta% of e)ecution, 9n "u% the
9,A,C,0,-, infor!ed the go$ern!ent that the
appicants had suffered a denia of /ustice and
re&uested that their sentences be co!!uted,
The "a!aican 8ri$% Counci reconsidered the
!atter in =ctober 19*6 and in Gebruar% 19** a
second #arrant of e)ecution #as issued, The
appicants #ere again transferred to the
conde!ned ces( but a sta% #as granted, 9n
.arch 19** the H,>,0,-,C, decided that the
case #as ad!issibe( and in Apri 19*9 hed that
certain artices of the 9nternationa Co$enant
had been $ioated and reco!!ended
co!!utation of the sentences, After
reconsideration b% the "a!aican 8ri$% Counci in
Septe!ber 1990 a third #arrant of e)ecution
#as issued in Gebruar% 1991( and the% #ere
again !o$ed to the conde!ned ces, The%
appied to the Supre!e Court for redress under
section 25 of the Constitution( and e)ecution
#as sta%ed, The Gu Court of the Supre!e
Court dis!issed the appication and the Court of
Appea of "a!aica uphed that decision,
=n the appicants: appea to the "udicia
Co!!ittee: -
Held( ao#ing the appea( (1) that prior to
"a!aican independence the egait% of a ong
dea%ed e)ecution coud ha$e been &uestioned
and( app%ing Fngish co!!on a#( e)ecution
sta%ed as an abuse of process' that section
16(2) of the Constitution !ere% authorised
descriptions of punish!ent #hich coud be
i!posed b% the court and did not pre$ent the
circu!stances in #hich the e)ecuti$e intended
to carr% out the sentence fro! infringing section
16(1)' that e)ecution shoud foo# as s#ift% as
practicabe after sentence of death( sub/ect to
ao#ance of a reasonabe ti!e for appea and
consideration of a reprie$e( and an appeate
procedure that per!itted proonged dea%( for
ta<ing ad$antage of #hich no faut coud be
attributed to a defendant( #as inco!patibe #ith
capita punish!ent' that since the appications
for specia ea$e to appea to the "udicia
Co!!ittee and the petitions to the 9,A,C,0,-,
and the H,>,0,-,C, coud not be categorised as
fri$oous the #hoe period of dea% had to be
ta<en into account' and that( according%( since
to carr% out e)ecutions after a dea% of 11 %ears
#oud constitute inhu!an punish!ent contrar%
to section 16(1)( the appicants: sentences
#oud be co!!uted to ife i!prison!ent
pursuant to section 25,
*er criam. (i) The ai! shoud be to hear a
capita appea in "a!aica #ithin 12 !onths of
con$iction( and the entire do!estic appea
process co!peted #ithin t#o %ears, Athough it
is reasonabe to ao# so!e period of dea% for
appeas to the 9,A,C,0,-, and H,>,0,-,C, it
shoud not be proonged,
(ii) 9n an% case in #hich e)ecution is to ta<e
pace !ore than fi$e %ears after sentence there
#i be strong grounds for beie$ing that the
dea% is such as to constitute ;inhu!an or
degrading punish!ent or other treat!ent,;
Decision of the Court of Appea of "a!aica
re$ersed,
8er 5ord Briffiths( at p, 16:
AThe appicants( Far 8ratt and 9$an .organ(
#ere arrested 16 %ears ago for a !urder
co!!itted on 6 =ctober 1966 and ha$e been
hed in custod% e$er since, =n 15 "anuar% 1969
the% #ere con$icted of !urder and sentenced to
death, Since that date the% ha$e been in prison
in that part of St, Catherine:s prison set aside to
hod prisoners under sentence of death and
co!!on% <no#n as ;death ro#,; =n three
occasions the death #arrant has been read to
the! and the% ha$e been re!o$ed to the
conde!ned ces i!!ediate% ad/acent to the
gao#s, The ast occasion #as in Gebruar% 1991
for e)ecution on 6 .arch' a sta% #as granted on
6 .arch conse&uent upon the co!!ence!ent of
these proceedings, The state!ent of these bare
facts is sufficient to bring ho!e to the !ind of
an% person of nor!a sensiti$it% and co!passion
the agon% of !ind that these !en !ust ha$e
suffered as the% ha$e aternated bet#een hope
and despair in the 11 %ears that the% ha$e been
in prison facing the gao#s, 9t is unnecessar%
to refer to the e$idence describing the restricti$e
conditions of i!prison!ent and the e!otiona
and ps%choogica i!pact of this e)perience( for
it on% re$eas that #hich it is to be e)pected,
15
These !en are not aone in their suffering for
there are no# 2+ prisoners in death ro# #ho
ha$e been a#aiting e)ecution for !ore than 10
%ears and *2 prisoners #ho ha$e been a#aiting
e)ecution for !ore than fi$e %ears, 9t is against
this disturbing bac<ground that their 5ordships
!ust no# deter!ine this constitutiona
appeaE,C
And at pp, 29-+6:
AThere is an instincti$e re$usion against the
prospect of hanging a !an after he has been
hed under sentence of death for !an% %ears,
4hat gi$es rise to this instincti$e re$usionN The
ans#er can on% be our hu!anit%' #e regard it
as an inhu!an act to <eep a !an facing the
agon% of e)ecution o$er a ong e)tended period
of ti!e, 7ut before their 5ordships conde!n the
act of e)ecution as ;inhu!an or degrading
punish!ent or other treat!ent; #ithin the
!eaning of section 16(1) there are a nu!ber of
factors that ha$e to be baanced in #eighing the
dea%, 9f dea% is due entire% to the faut of the
accused such as an escape fro! custod% or
fri$oous and ti!e #asting resort to ega
procedures #hich a!ount to an abuse of process
the defendant cannot be ao#ed to ta<e
ad$antage of that dea% for to do so #oud be to
per!it the defendant to use iegiti!ate !eans
to escape the punish!ent inficted upon hi! in
the interest of protecting societ% against cri!e,
A !uch !ore difficut &uestion is #hether the
dea% occasioned b% the egiti!ate resort of the
defendant to a a$aiabe appeate procedures
shoud be ta<en into account( or #hether it is
on% dea% that can be attributed to the
shortco!ings of the state that shoud be ta<en
into account,
There is a po#erfu argu!ent that it cannot be
inhu!an or degrading to ao# a defendant
e$er% opportunit% to proong his ife b% resort to
appeate procedures ho#e$er e)tended !a% be
the e$entua ti!e bet#een sentence and
e)ecution, This is the $ie# that current%
pre$ais in so!e states in the Hnited States of
A!erica and has resuted in #hat has beco!e
<no#n as the ;death ro# pheno!enon; #here
!en are hed under sentence of death for !an%
%ears #hie their a#%ers pursue a !utipicit% of
appeate procedures, 8o#erfu state!ents in
support of this point of $ie# appear in the
opinion of Circuit "udge =:Scannain in .ichmond
v. $e1is (1990) 91* G,2d 116+( a decision of the
Hnited States Court of Appeas for the >inth
Circuit( and in the /udg!ent of 5a Gorest ", in
3indler v. (anada (+inister of 4stice) (1991) 66
C,C,C, (+d) 1( a decision of the Supre!e Court
of Canada, A further $auabe ana%sis of the
decisions in the Hnited States courts appears in
the /udg!ent of the Supre!e Court of
Pi!bab#e in (atholic (ommission for 4stice
and *eace in 5imbab1e v. Attorney-General
(unreported)( 21 "une 199+( "udg!ent >o, S,C,
6+Q9+EE
9n their 5ordships: $ie# a state that #ishes to
retain capita punish!ent !ust accept the
responsibiit% of ensuring that e)ecution foo#s
as s#ift% as practicabe after sentence( ao#ing
a reasonabe ti!e for appea and consideration
of reprie$e, 9t is part of the hu!an condition
that a conde!ned !an #i ta<e e$er%
opportunit% to sa$e his ife through use of the
appeate procedure, 9f the appeate procedure
enabes the prisoner to proong the appeate
hearings o$er a period of %ears( the faut is to be
attributed to the appeate s%ste! that per!its
such dea% and not to the prisoner #ho ta<es
ad$antage of it, Appeate procedures that echo
do#n the %ears are not co!patibe #ith capita
punish!ent, The death ro# pheno!enon !ust
not beco!e estabished as a part of our
/urisprudence,
The appication of the appicants to appea to the
"udicia Co!!ittee of the 8ri$% Counci and their
petitions to the t#o hu!an rights bodies do not
fa #ithin the categor% of fri$oous procedures
disentiting the! to as< the 7oard to oo< at the
#hoe period of dea% in this case, The tota
period of dea% is shoc<ing and no# a!ounts to
a!ost 11 %ears, 9t is doube the ti!e that the
Furopean Court of 0u!an -ights considered
#oud be an infringe!ent of artice + of the
Furopean Con$ention for the 8rotection of
0u!an -ights and Gunda!enta Greedo!s
(C!d, *969) and their 5ordships can ha$e no
doubt that an e)ecution #oud no# be an
infringe!ent of section 16(1) of the "a!aican
Constitution,
To e)ecute these !en no# after hoding the! in
custod% in an agon% of suspense for so !an%
%ears #oud be inhu!an punish!ent #ithin the
!eaning of section 16(1), 9n the ast resort the
courts ha$e to accept the responsibiit% of sa%ing
#hether the threshod has been passed in an%
gi$en case and there !a% be difficut borderine
decisions to be !ade, This( ho#e$er( is not a
borderine case, The dea% in this case is #ho%
unacceptabe and this appea !ust be
ao#edE,,,
Their 5ordships are $er% conscious that the
"a!aican Bo$ern!ent faces great difficuties
#ith a disturbing !urder rate and i!ited
financia resources at their disposa to
ad!inister the ega s%ste!, >e$ertheess( if
capita punish!ent is to be retained it !ust be
carried out #ith a possibe e)pedition, Capita
appeas !ust be e)pedited and ega aid
aocated to an appeant at an ear% stage, The
ai! shoud be to hear a capita appea #ithin 12
!onths of con$iction, The procedure contained
in the Bo$ernor-Benera:s 9nstructions shoud be
reinstated so that the ",8,C, consider the case
short% after the Court of Appea hearing and if
an e)ecution date is set and there is to be an
16
appication to the "udicia Co!!ittee of the 8ri$%
Counci it !ust be !ade as soon as possibe( as
both the rues of the "udicia Co!!ittee of the
8ri$% Counci and the Bo$ernor-Benera:s
9nstructions re&uire( in #hich case it shoud be
possibe to dispose of it #ithin si) !onths of the
Court of Appea hearing or #ithin a further si)
!onths if there is to be a fu hearing of the
appea, 9n this #a% it shoud be possibe to
co!pete the entire do!estic appea process
#ithin appro)i!ate% t#o %ears, Their 5ordships
do not purport to set do#n an% rigid ti!etabe
but to indicate #hat appear to the! to be
reaistic targets #hich( if achie$ed( #oud entai
$er% !uch shorter dea% than has occurred in
recent cases and coud not be considered to
in$o$e inhu!an or degrading punish!ent or
other treat!entEE
These considerations ead their 5ordships to the
concusion that in an% case in #hich e)ecution is
to ta<e pace !ore than fi$e %ears after
sentence there #i be strong grounds for
beie$ing that the dea% is such as to constitute
;inhu!an or degrading punish!ent or other
treat!ent,; 9f( therefore( rather than #aiting
for a those prisoners #ho ha$e been in death
ro# under sentence of death for fi$e %ears or
!ore to co!!ence proceedings pursuant to
section 25 of the Constitution( the Bo$ernor-
Benera no# refers a such cases to the ",8,C,
#ho( in accordance #ith the guidance contained
in this ad$ice( reco!!end co!!utation to ife
i!prison!ent( substantia /ustice #i be
achie$ed s#ift% and #ithout pro$o<ing a food of
appications to the Supre!e Court for
constitutiona reief pursuant to section 16(1),C
T!e r$g!t to a1ol$s! a,,eals to t!e *r$+y
Co'n($l
Attorney General for 0ntario v Attorney
General for .anada 219163 A,C, 126
7% 7i 9( introduced into the Canadian
8aria!ent in 19+9 and entited ;An Act to
a!end the Supre!e Court Act of Canada(; it
#as pro$ided that ;The Supre!e Court sha
ha$e( hod and e)ercise e)cusi$e uti!ate
appeate ci$i and cri!ina /urisdiction #ithin
and for Canada' and the /udg!ent of the court
sha( in a cases( be fina and concusi$e(; and
that ;>ot#ithstanding an% ro%a prerogati$e or
an%thing contained in an% Act of 8aria!ent of
the Hnited @ingdo! or an% Act of the 8aria!ent
of Canada or an% Act of the egisature of an%
pro$ince of Canada or an% other statute or a#(
no appea sha ie or be brought fro! an%
court ,,,, #ithin Canada to an% court of appea(
tribuna or authorit% b% #hich( in the Hnited
@ingdo!( appeas or petitions to 0is .a/est% in
Counci !a% be ordered to be heard,; The 7i
further pro$ided that the "udicia Co!!ittee
Acts( 1*++ and 1*11( and a orders( rues or
reguations !ade thereunder #ere repeaed in
so far as the% #ere part of the a# of Canada:-
Held" that 7i 9 #as #ho% intra $ires of the
8aria!ent of Canada( #hich( according%( #as
co!petent to enact in regard both to appeas
fro! the Supre!e Court of Canada itsef and
appeas direct fro! the pro$incia courts to 0is
.a/est% in Counci that the Supre!e Court
shoud ha$e ;e)cusi$e; and ;uti!ate;
appeate( ci$i and cri!ina /urisdiction,
As to appeas fro! the Supre!e Court itsef(
#hereas before the passing of the Statute of
4est!inster( 19+1( the po#er $ested in the
Do!inion 8aria!ent b% s, 101 of the 7ritish
>orth A!erica Act( 1*66( to estabish a genera
Court of Appea for Canada #as necessari%
sub/ect to the prerogati$e right of 0is .a/est% to
grant specia ea$e to appea therefro!( since
that right #as not e)press% or b% necessar%
intend!ent e)cuded( that restriction or fetter
on the egisati$e po#er of the Do!inion had
been re!o$ed b% the Statute of 4est!inster(
and it #as according% #ithin the po#er of the
Do!inion 8aria!ent to enact that the
/urisdiction of its Supre!e Court shoud be
uti!ate,
As to appeas direct fro! pro$incia courts to 0is
.a/est% in Counci( s, 101 of the 7ritish >orth
A!erica Act ;read and appied as pri!a facie
intended to endo# the Do!inion 8aria!ent #ith
po#er to effect high poitica ob/ects concerning
the sef-go$ern!ent of the Do!inion ,,,, in the
!atter of /udicature(; i!ported authorit% to
estabish a court ha$ing supre!e and fina and
e)cusi$e appeate /urisdiction in Canada,
Section 101 conferred a egisati$e po#er on the
Do!inion 8aria!ent #hich b% its ter!s
o$errode an% po#er conferred b% s, 92 of the
7ritish >orth A!erica Act on the pro$inces or
preser$ed b% s, 129 of that Act, The #ords in s,
101( ;not#ithstanding an%thing in this Act(;
$ested in the Do!inion a penar% authorit% to
egisate in regard to appeate /urisdiction #hich
#as on% &uaified b% that #hich a% outside the
Act( na!e%( the so$ereign po#er of the
9!peria 8aria!ent, According%( since the
co!ing into operation of the Statute of
4est!inster( #hich ga$e the Do!inion
8aria!ent po#er to abrogate 9!peria Statutes
#hich &uaified its attribute of so$ereign po#er
b% an e)terna constitutiona i!itation( the
authorit% conferred b% s, 101 stood un&uaified
and absoute,
Iie#ing the !atter fro! a #ider point of $ie#( it
is not consistent #ith the poitica conception
#hich is e!bodied in the 7ritish Co!!on#eath
of >ations( that one !e!ber of that
Co!!on#eath shoud be precuded fro!
setting up a supre!e court of appea ha$ing a
/urisdiction both uti!ate and e)cusi$e of an%
other !e!ber, Gurther( the reguation of
appeas is ;a pri!e ee!ent in Canadian
so$ereignt%; #hich #oud be i!paired if at the
#i of its citiKens recourse coud be had to a
16
tribuna in the constitution of #hich it had no
$oice, 9t #oud be aien to the spirit #ith #hich
the prea!be to the Statute of 4est!inster is
instinct to concede an%thing ess than the #idest
a!pitude of po#er to the Do!inion under s,
101 of the 7ritish >orth A!erica Act, That the
a# shoud be one and the sa!e for a its
citiKens #as on% attainabe if s, 101 no#
authoriKed the estabish!ent of a court #ith
fina and e)cusi$e appeate /urisdiction,
Ibralebbe v -* 219613 A,C, 900
The /urisdiction of the 7oard to entertain appeas
fro! Ce%on in cri!ina !atters sti e)ists and
has not been abrogated b% Ce%on:s attain!ent
of independence in 1916, >o#here is there to be
found in the instru!ents e!po%ed to bring
about independence - the Ce%on 9ndependence
Act( 1916( and the se$era =rders in Counci
setting up the Ce%on Constitution - an%
reference to the 8ri$% Counci appea( its
continuance or its e)tinguish!ent( nor is there
an%thing in those !easures #hich b% necessar%
i!pication puts an end to the prerogati$e right
to hear appeas #hich e)isted before the date of
independence,
The =rder in Counci #hich gi$es effect to a
"udicia Co!!ittee report is a /udicia order - it
is in e$er%thing but for! the e&ui$aent of a
ega /udg!ent, 9t is an ;order or decree ,,, on
appea; (section 21 of the "udicia Co!!ittee
Act( 1*++)( and is !andator% in its directions to
those #ho! it affects b% $irtue of the pro$isions
of section 21, The co!pe!ent to the in/unction
contained in section 21 of the Act of 1*++ is( for
Ce%on( the sections of the oca egisation -
section 10 of the Courts =rdinance and section
++1 of the Cri!ina 8rocedure Code - #hich
estabish that the 8ri$% Counci appea is part of
the /udicia s%ste! of Ce%on, 9t #oud be high%
unrea to ignore the significance of the continued
presence of pro$isions in the 1956 -e$ised
Fdition of the 5egisati$e Fnact!ents of Ce%on
#hich recognise the right of appea to the 8ri$%
Counci,
According%( since the structure of the courts in
Ce%on for deaing #ith ega !atters and the
s%ste! of appeas e)isting at the date of
independence ha$e not been affected b% an% of
the instru!ents that conferred that status( it
foo#s that( inas!uch as the =rder in Counci
!ade upon report of the "udicia Co!!ittee is
the effecti$e /udg!ent to dispose of and
i!pe!ent the Co!!ittee:s decision of an
appea( the po#er to !a<e such an order
re!ains unabated,
Since the 8aria!ent of Ce%on( under its no#
e)isting constitutiona po#er( !a% at an% ti!e
!odif% or ter!inate the 8ri$% Counci appea(
true independence is not in an% #a%
co!pro!ised b% the continuance of that appea,
8er Iiscount -adciffe( at p, 91*
AThe essentia point to attend to( in their
5ordships: opinion( is to in&uire #hether there is
an%thing in the egisati$e or other !easures
#hich brought about the independence of Ce%on
or the constitutiona status resuting fro! those
!easures #hich b% necessar% i!pication put an
end to the prerogati$e right to hear appeas and
the co!pe!entar% right to app% for the!(
#hich undoubted% e)isted up to the date of that
e$ent, And in ans#ering that &uestion it see!s
high% unrea to ignore the significance of the
continued presence of pro$isions in the re$ised
statute boo< #hich recognise the right of appea(
since in co!!on #ith the other circu!stances
to #hich their 5ordships ha$e thought it proper
to aude their presence testifies pain% to the
fact that( if the co!ing of independence did b%
itsef i!pied% aboish the /udicia appea( the
i!pication( though no# said to be necessar%(
has escaped for %ears the notice of a those
!ost direct% concerned #ith the ad!inistration
of the appea s%ste!,C
And at pp, 921-922:
AThe co!pe!ent to the in/unction contained in
section 21 of the Act of 1*++ is( for Ce%on( the
sections of its oca egisation #hich ha$e
aread% been referred to( section 10 of the
Courts =rdinance and section ++1 of the
Cri!ina 8rocedure Code, 7et#een the!( these
$arious egisati$e pro$isions estabish that the
8ri$% Counci appea is part of the /udicia
s%ste! of Ce%on( a part of the structure of
origina and appeate courts b% #hich ega
decisions( /udg!ents( decrees and orders are
passed and recorded,
9t is not as if the "udicia Co!!ittee #as( in
essence( an Fngish institution or an institution
of the Hnited @ingdo!, =n the contrar%( as 5ord
0adane said in Ale6. Hll 7 (o. v. +'3enna" it is
;not a bod%( strict% spea<ing( #ith an%
ocation,; ;9t is not(; he said( ;an Fngish bod% in
an% e)cusi$e sense, 9t is no !ore an Fngish
bod% than it is an 9ndian bod%( or a Canadian
bod%( or a South African bod%( or( for the future(
an 9rish Gree State bod%,; 9f and #hen a
territor% ha$ing institutiona po#er to do so( as
Ce%on no# has( decides to abrogate the appea
to the "udicia Co!!ittee fro! its oca courts(
#hat it does is to effect an a!end!ent of its
o#n /udicia structure,C
And at pp, 921-925:
ATheir 5ordships can no# su!!arise #hat is( in
their opinion( the effect of Ce%on:s attain!ent
of independence and of the acco!pan%ing
egisati$e pro$isions( so far as concerns the
present right of 0er .a/est% to !a<e =rders in
Counci affecting Ce%on, There is no po#er to
egisate for Ce%on: to do so #oud be #ho%
inconsistent #ith the un&uaified po#ers of
1*
egisation conceded b% the 1916 =rder, There is
no po#er to participate in the go$ern!ent of
Ce%on through the !ediu! of =rders in
Counci( since the contro and direction of the
go$ern!ent of the territor% are in the charge of
the Cabinet of .inisters( responsibe to the
8aria!ent of Ce%on( and in the Bo$ernor-
Benera according to his constitutiona po#ers,
7ut the structure of courts for deaing #ith ega
!atters and the s%ste! of appeas e)isting at
the date of independence ha$e not been affected
b% an% of the instru!ents that conferred that
status( and it foo#s that( inas!uch as an =rder
in Counci !ade upon report of the "udicia
Co!!ittee is the effecti$e /udg!ent to dispose
of and i!pe!ent the Co!!ittee:s decision of
an appea( the po#er to !a<e such an =rder
re!ains unabated,
Their 5ordships !ust obser$e( in concusion(
ha$ing regard to one or t#o re!ar<s that
appear in the /udg!ent of the Chief "ustice( that
it see!s to the! a !iseading si!pification to
spea< of the continuance of the 8ri$% Counci
appea as being inherent% inconsistent #ith
Ce%on:s status as an independent territor% or as
being bound up #ith a reationship bet#een 0er
.a/est% and coonia sub/ects, 0istorica%( the
assu!ption #oud in itsef be inaccurate( and(
constitutiona%( it is unnecessar%, Gor( if it is
recognised( as it !ust be( that the egisati$e
co!petence of the 8aria!ent of Ce%on incudes
po#er at an% ti!e( if it thin<s right( to !odif% or
ter!inate the 8ri$% Counci appea fro! its
courts( true independence is not in an% #a%
co!pro!ised b% the continuance of that appea(
uness and unti the so$ereign egisati$e bod%
decides to end it,C
$it/hell v DPP (19*5) +2 4,9,-, 211 (8,C,)
Section + of the 4est 9ndies Associated States
(Appeas to 8ri$% Counci) =rder 1966 does not
e)cude the po#er of an indi$idua State to
prescribe b% or in pursuance of its o#n
Constitution that no appea shoud ie to 0er
.a/est% in Counci in proceedings of an% <ind
originating in that State,
4hate$er the origina $aidit% of 8eopeMs 5a# *1
of 1969 (pro!ugated b% the sef-st%ed
A8eopeMs -e$outionar% Bo$ern!entC of
Brenada)( its subse&uent ratification b% Act 1 of
19*5( section 2(i)( #hich #as passed unopposed
b% the egiti!ate 8aria!ent of Brenada effected
an a!end!ent to the Constitution( section 101(
precuding an% right of appea to the 8ri$%
Counci, According%( a petition for specia ea$e
to appea to 0er .a/est% in Counci b% a
petitioner in Brenada #hich #as odged after Act
1 of 19*5 recei$ed the assent of the Bo$ernor-
Benera #as outside the /urisdiction of the
7oard,
8er 5ord Dipoc<( at pp, 21+-215:
AThe source of this 7oardMs /urisdiction to hear
appeas in proceedings originating in Brenada is
section + of the 4est 9ndies Associated States
(Appeas to 8ri$% Counci) =rder 1966 (Athe
8ri$% Counci Appeas =rderC), That =rder is
cose% in<ed #ith the 4est 9ndies Associated
States Supre!e Court =rder 1966 (Athe Court
=rderC) and the reference to AStateC in section +
is to the si) Caribbean States to #hich the Court
=rder appies( one of #hich is Brenada, Section
+ is in the foo#ing ter!s:
RAn appea sha ie to 0er .a/est% in Counci
fro! decisions of the court gi$en in an%
proceeding originating in a State in such
cases as may be prescribed b% or in
pursuance of the Constitution of that State,M
So( in order to deter!ine in #hat <inds of cases
and sub/ect to #hat conditions a right of appea
(if an%) in proceedings originating in Brenada is
granted b% the section( it is necessar% to ha$e
recourse to the pro$isions of the Constitution of
Brenada itsef as the% are current% in force at
the ti!e at #hich ea$e to appea to 0er .a/est%
in Counci is sought( incuding an% a!end!ents
to the origina 9ndependence Constitution that
ha$e been $aid% !ade b% then,
7earing in !ind that the 8ri$% Counci Appeas
=rder appies not to Brenada aone but to si)
separate States of #hich Brenada is but one(
and its use of the #ord A!a%C( it is in their
5ordshipsM opinion i!possibe so to construe the
section as to e)cude the po#er of an indi$idua
State to prescribe b% or in pursuance of its o#n
Constitution that no appea shoud ie to 0er
.a/est% in Counci in proceedings of an% <ind
originating in that State, Gurther!ore( the
conse&uences of adopting such construction
#oud ead to absurdit%, 9t #oud !ean that the
8aria!ent of Brenada coud cut do#n the right
of appea to the 8ri$% Counci to an%thing that
#as short of absoute $anishing point( so ong as
there #as eft so!e narro#%-defined t%pe of
case in #hich an appea coud be brought
sub/ect to specified stringent conditions(
ho#e$er uni<e% it !ight be that a case faing
#ithin the definition #oud e$er be brought and
the specified conditions fufied,
The ree$ant pro$ision of the Constitution of
Brenada prior to the cop d8etat of .arch 1969
#as section 101 of the 9ndependence
Constitution, This section granted e)tensi$e
appeas to 0er .a/est% in Counci as of right and
an uni!ited right of appea b% specia ea$e of
0er .a/est%, 7% section +9(2) of the
9ndependence Constitution an% 7i a!ending
section 101 had to be supported on fina reading
b% the $otes of not ess than t#o-thirds of a the
!e!bers of the 0ouse of -epresentati$es' but(
b% $irtue of section +9(5) and the e)press
e)cusion of section 101 fro! 8art 1 of Schedue
1 to the 9ndependence Constitution( that
subsection does not app% to ateration or repea
19
of section 101 and neither ninet% da%sM dea% nor
appro$a b% referendu! #as re&uired,
The ree$ant pro$ision of 8eopeMs 5a# *1 of
1969 reads as foo#s:
R2, (1) As fro! the prescribed da% appeas to
0er .a/est% in Counci are aboished and a
decisions of the "udicia Co!!ittee of the
8ri$% Counci( #hether gi$en before or after
the prescribed da%( sha ha$e no binding
ega force in Brenada,
(2) 9n the foregoing subsection Rthe
prescribed da%M is 1+th .arch 1969,M
4hate$er !a% be argued about (i) the origina
$aidit% or continued effecti$eness of 8eopeMs
5a# *1 of 1969( (ii) its subse&uent continuance
b% the Bo$ernor-Benera in his proca!ation of
1th >o$e!ber 19*+( !ade after the !iitar%
inter$ention( and (iii) such reser$ations about
constitutiona pro$isions reating to the /udicia
s%ste! as he purported to !a<e in his =rder of
9th >o$e!ber 19*1 decaring the 9ndependence
Constitution to be once !ore in force( that
Constitution #as( in genera( treated as
operati$e, Benera eections pursuant to its
pro$isions #ere hed and a ne# 8aria!ent #as
s#orn in b% the end of Dece!ber 19*1,
The first a# that the ne# 8aria!ent passed
#as Act 1 of 19*5 of #hich the ree$ant enacting
pro$ision #as:
R2, Gor the a$oidance of doubt it is hereb%
enacted that the foo#ing a#s( rues and
proca!ations are in force( and sha re!ain
in force unti other#ise enacted: (i) 5a# and
-ues !ade b% the 8eopeMs -e$outionar%
Bo$ern!ent,,,M
The Act recei$ed the assent of the Bo$ernor-
Benera on 21st Gebruar% 19*5, Athough there
is not a!ong the papers odged #ith the petition
a certificate b% the Spea<er or deput% Spea<er
under section +9(6) of the Constitution to the
effect that Act 1 of 19*5 #as supported b% t#o-
thirds of a .e!bers of the 0ouse of
-epresentati$es( no point #as ta<en as to this
either before their 5ordships or in the courts of
Brenada' for it is co!!on ground that the 7i
#hich beca!e Act 1 of 19*5 recei$ed the
support of at east t#o-thirds of a .e!bers of
the 0ouse of -epresentati$es( #here the 7i
passed unopposed as it did aso in the Senate,
The #ords of 8eopeMs 5a# *1 #hich purport to
aboish appeas to the 8ri$% Counci are in
absoute and una!biguous ter!s, 9n effect the
first thirteen #ords purported to repea the
#hoe of section 101 of the 9ndependence
Constitution, Those #ords ha$e since been
confir!ed and thereb% $aidated b% an Act of the
egiti!ate 8aria!ent of Brenada passed b% a
procedure b% #hich section 101 (#hich !a% be
described as se!i-entrenched( rather than fu%
entrenched pro$ision) !a% $aid% be repeaed
or a!ended, The repea has therefore atered
the Constitution of Brenada since 21st Gebruar%
19*5, Their 5ordships( in deaing #ith a petition
odged on 2*th "une 19*5( are not concerned
#ith an% retrospecti$e effect of a!end!ents to
the 9ndependence Constitution or #ith the effect
of the #ords after the first thirteen in 8eopeMs
5a# *1, These !ight pose high% arguabe
&uestions' but Act 1 of 19*5 spea<s to the
future on%, 9n their 5ordshipsM $ie# it depri$es
the! cear% and una!biguous% of an%
/urisdiction to entertain this petition under
section + of the 8ri$% Counci Appeas =rder(
#hich is( as the% ha$e aread% pointed out( their
on% source of /urisdiction to hear appeas in
proceedings originating in Brenada,C
Inde1endent Jamai/a .oun/il for %uman
-ights (2334, td v Attorney General of
Jamai/a 220053 H@8C +
This entire case !ust be read, 9t can be found at
the foo#ing address:
http:QQ###,pri$%-counci,org,u<QfiesQotherQindependentS20/a!aica,/ud,rtf
A2REE3ENT ESTA4LISHIN2 THE
CARI44EAN COURT OF &USTICE
ARTICLE IV
CONSTITUTION OF THE COURT
1, Sub/ect to paragraph 2 of this Artice( the
"udges of the Court sha be the 8resident and
not !ore than nine other "udges of #ho! at
east three sha possess e)pertise in
internationa a# incuding internationa trade
a#,
2, The nu!ber of "udges( e)cuding the
8resident( !a% be increased b% the 0eads of
Bo$ern!ent( upon the reco!!endation of the
Co!!ission,
+, The Court sha be du% constituted as set
out in 8arts 99 and 999 and !a% sit in such
nu!ber of di$isions as !a% be directed b% the
8resident but e$er% "udge of the Court !a% sit
in an% di$ision,
1, The deter!ination of an% &uestion before
the Court sha be according to the opinion of
the !a/orit% of the "udges of the Court hearing
the case,
5, >ot#ithstanding the pro$isions of this
Artice( the 8resident !a% appoint one or !ore
/udges to deter!ine interocutor% !atters,
6, The 8resident sha be appointed or
re!o$ed b% the &uaified !a/orit% $ote of three
&uarters of the Contracting 8arties on the
reco!!endation of the Co!!ission,
20
6, The "udges of the Court( other than the
8resident( sha be appointed or re!o$ed b% a
!a/orit% $ote of a of the !e!bers of the
Co!!ission,
*, The 8resident sha ta<e precedence o$er
a other "udges of the Court and the seniorit% of
the other "udges of the Court sha be
deter!ined in accordance #ith the dates of their
appoint!ent,
9, The appoint!ent of the 8resident sha be
signified b% etter under the hand of the
Chair!an for the ti!e being of the Conference
acting on the ad$ice of the 0eads of
Bo$ern!ent and the appoint!ent of an% other
"udge of the Court sha be signified b% etter
under the hand of the Chair!an of the
Co!!ission,
10, A person sha not be &uaified to be
appointed to hod or to act in the office of "udge
of the Court( uness that person satisfies the
criteria !entioned in paragraph 11 and T
(a) is or has been for a period or periods
a!ounting in the aggregate to not ess than fi$e
%ears( a "udge of a court of uni!ited /urisdiction
in ci$i and cri!ina !atters in the territor% of a
Contracting 8art% or in so!e part of the
Co!!on#eath( or in a State e)ercising ci$i a#
/urisprudence co!!on to Contracting 8arties( or
a court ha$ing /urisdiction in appeas fro! an%
such court and #ho( in the opinion of the
Co!!ission( has distinguished hi!sef or hersef
in that office' or
(b) is or has been engaged in the practice or
teaching of a# for a period or periods
a!ounting in the aggregate to not ess than
fifteen %ears in a .e!ber State of the Caribbean
Co!!unit% or in a Contracting 8art% or in so!e
part of the Co!!on#eath( or in a State
e)ercising ci$i a# /urisprudence co!!on to
Contracting parties( and has distinguished
hi!sef or hersef in the ega profession,
11, 9n !a<ing appoint!ents to the office of
"udge( regard sha be had to the foo#ing
criteria: high !ora character( inteectua and
ana%tica abiit%( sound /udg!ent( integrit%( and
understanding of peope and societ%,
12, The Co!!ission !a%( prior to
appointing a "udge of the Court( consut #ith
associations representati$e of the ega
profession and #ith other bodies and indi$iduas
that it considers appropriate in seecting a "udge
of the Court,
ARTICLE V
ESTA4LISH3ENT OF THE RE2IONAL
&UDICIAL AND LE2AL SERVICES
CO33ISSION
1, There is hereb% estabished a -egiona
"udicia and 5ega Ser$ices Co!!ission #hich
sha consist of the foo#ing persons:
(a) The 8resident #ho sha be the Chair!an
of the Co!!ission'
(b) T#o persons no!inated /oint% b% the
=rganisation of the Co!!on#eath Caribbean
7ar Association (=CC7A) and the =rganisation of
Fastern Caribbean States (=FCS) 7ar
Association'
(c) =ne chair!an of the "udicia Ser$ices
Co!!ission of a Contracting 8art% seected in
rotation in the Fngish aphabetica order for a
period of three %ears'
(d) The Chair!an of a 8ubic Ser$ice
Co!!ission of a Contracting 8art% seected in
rotation in the re$erse Fngish aphabetica order
for a period of three %ears'
(e) T#o persons fro! ci$i societ% no!inated
/oint% b% the Secretar%-Benera of the
Co!!unit% and the Director Benera of the
=FCS for a period of three %ears foo#ing
consutations #ith regiona nongo$ern!enta
organisations'
(f) T#o distinguished /urists no!inated
/oint% b% the Dean of the Gacut% of 5a# of the
Hni$ersit% of the 4est 9ndies( the Deans of the
Gacuties of 5a# of an% of the Contracting 8arties
and the Chair!an of the Counci of 5ega
Fducation' and
(g) T#o persons no!inated /oint% b% the 7ar
or 5a# Associations of the Contracting 8arties,
2, 4here an% person or bod% re&uired to
no!inate a candidate for appoint!ent to the
-egiona "udicia and 5ega Ser$ices Co!!ission
in accordance #ith paragraph 1( fais to !a<e
such no!ination #ithin thirt% (+0) da%s of a
#ritten re&uest in that behaf( the no!ination
sha be !ade /oint% b% the heads of the
/udiciaries of the Contracting 8arties,
+, (1) The Co!!ission sha ha$e
responsibiit% for:
(a) !a<ing appoint!ents to the office of
"udge of the Court( other than that of 8resident'
(b) !a<ing appoint!ents of those officias
and e!po%ees referred to in Artice UUI99 and
for deter!ining the saaries and ao#ances to
be paid to such officias and e!po%ees'
(c) the deter!ination of the ter!s and
conditions of ser$ice of officias and e!po%ees'
and
21
(d) the ter!ination of appoint!ents in
accordance #ith the pro$isions of this
Agree!ent,

(2) The Co!!ission sha( in accordance #ith
the -eguations( e)ercise discipinar% contro
o$er "udges of the Court( other than the
8resident( and o$er officias and e!po%ees of
the Court,
1, The ter! of office of !e!bers of the
Co!!ission( other than the Chair!an sha be
three %ears( but such !e!bers sha be eigibe
for re-appoint!ent for another ter! of office,
5, The !e!bers of the Co!!ission referred
to in paragraph 1(b)( (c)( (d)( (f) and (g) sha
be appointed b% etter under the hand of the
8resident,
6, 9f the office of a !e!ber of the
Co!!ission( other than the Chair!an is $acant
or the hoder thereof is unabe to perfor! the
functions of his office( a person !a% be
appointed to perfor! the functions of that office
for the une)pired ter! of the hoder of the office
or unti the hoder resu!es office,
6, Sub/ect to paragraph 1+ of this Artice( the
Co!!ission sha not be:
(a) Dis&uaified fro! the transaction of
business b% reason of an% $acanc% in its
!e!bership and its proceedings sha not be
in$aidated b% the presence or participation of
an% person not entited to be present or to
participate in those proceedings'
(b) Dis&uaified fro! the transaction of
business nor its proceedings in$aidated b%
reason of the nonNreceipt b% a !e!ber of the
Co!!ission( of a notice for a !eeting of the
Co!!ission,
*, The Co!!ission !a%( b% directions in
#riting and sub/ect to such conditions as it
thin<s fit( deegate an% of its po#ers under
paragraph +(1)(b) and (c) of this Artice to an%
one or !ore of its !e!bers or to the -egistrar,
9, A !e!ber of the Co!!ission( other than
the Chair!an !a%( b% #riting under the hand of
that !e!ber( addressed to the Chair!an of the
Co!!ission( resign fro! the Co!!ission,
10, The Co!!ission sha( no ater than +1
.arch in e$er% %ear( sub!it to the 0eads of
Bo$ern!ent( an Annua -eport of its #or< and
operations during the pre$ious %ear,
11, The -egistrar of the Court sha perfor!
the functions of Secretar% of the Co!!ission
and sha be the chief ad!inistrati$e officer of
the Co!!ission,
12, 9n the e)ercise of their functions under
this Agree!ent( the !e!bers of the
Co!!ission sha neither see< nor recei$e
instructions fro! an% bod% or person e)terna to
the Co!!ission,
1+, A &uoru! for the transaction of
business b% the Co!!ission sha consist of not
ess than si) !e!bers of the Co!!ission
incuding the Chair!an or( #here the Deput%
Chair!an is presiding( the Deput% Chair!an,
11, Sub/ect to this Artice( the Co!!ission
sha ha$e po#er to reguate its o#n procedure,
ARTICLE VI
THE FIRST A**OINT3ENT OF THE
*RESIDENT AND 3E34ERS OF THE
CO33ISSION
1, Gor the purposes of the first appoint!ent
of the 8resident and Co!!issioners and
not#ithstanding the pro$isions of paragraph 6 of
Artice 9I( the !e!bers of the Co!!ission
appointed pursuant to the Agree!ent sha
!a<e a reco!!endation for the appoint!ent of
the 8resident,
2, >ot#ithstanding the pro$isions of
paragraphs 1 and 5 of Artice I:
(a) the ter! of office of the !e!bers of
the Co!!ission appointed in accordance #ith
paragraph 1 of this Artice sha be one %ear'
and
(b) the !e!bers of the Co!!ission
!entioned in subparagraph (a) of this paragraph
sha be appointed b% etter under the hand of
the heads of the /udiciar% of the Contracting
8arties,
ARTICLE I5
TENURE OF OFFICE OF &UD2ES
1, The office of a "udge of the Court sha not
be aboished #hie there is a substanti$e hoder
thereof,
2, Sub/ect to the pro$isions of this Artice(
the 8resident sha hod office for a
nonrene#abe ter! of se$en %ears or unti he
attains the age of se$ent%-t#o %ears( #hiche$er
is earier( e)cept that the 8resident sha
continue in office( if necessar%( for a further
period not e)ceeding three !onths to enabe
hi! to dei$er /udg!ent or to do an% other thing
in reation to an% proceedings part heard b%
hi!,
+, Sub/ect to the pro$isions of this Artice( a
"udge of the Court sha hod office unti he
22
attains the age of se$ent%-t#o %ears( e)cept
that he sha continue in office( if necessar%( for
a further period not e)ceeding three !onths to
enabe hi! to dei$er /udg!ent or to do an%
other thing in reation to an% proceedings part-
heard b% hi!,
1, A "udge !a% be re!o$ed fro! office on%
for inabiit% to perfor! the functions of his
office( #hether arising fro! iness or an% other
cause or for !isbeha$iour( and sha not be so
re!o$ed e)cept in accordance #ith the
pro$isions of this Artice,
5, (1) Sub/ect to Artice 9I( paragraph 5(
the 8resident sha be re!o$ed fro! office b%
the 0eads of Bo$ern!ent on the
reco!!endation of the Co!!ission( if the
&uestion of the re!o$a of the 8resident has
been referred b% the 0eads of Bo$ern!ent to a
tribuna and the tribuna has ad$ised the
Co!!ission that the 8resident ought to be
re!o$ed fro! office for inabiit% or !isbeha$iour
referred to in paragraph 1,
(2) Sub/ect to Artice 9I( paragraph 6( a
"udge other than the 8resident sha be re!o$ed
fro! office b% the Co!!ission if the &uestion of
the re!o$a of the "udge has been referred b%
the Co!!ission to a tribuna' and the tribuna
has ad$ised the Co!!ission that the "udge
ought to be re!o$ed fro! office for inabiit% or
!isbeha$iour referred to in paragraph 1,
6, 9f at east three 0eads of Bo$ern!ent in
the case of the 8resident /oint% represent to the
other 0eads of Bo$ern!ent( or if the
Co!!ission decides in the case of an% other
"udge( that the &uestion of re!o$ing the
8resident or the "udge fro! office ought to be
in$estigated( then -
(a) the 0eads of Bo$ern!ent or the
Co!!ission sha appoint a tribuna #hich sha
consist of a chair!an and not ess than t#o
other !e!bers( seected b% the 0eads of
Bo$ern!ent or the Co!!ission( as the case
!a% be( after such consutations as !a% be
considered e)pedient( fro! a!ong persons #ho
hod or ha$e hed office as a "udge of a court of
uni!ited /urisdiction in ci$i and cri!ina
!atters in so!e part of the Co!!on#eath( or
in a State e)ercising ci$i a# /urisprudence
co!!on to Contracting 8arties( or a court
ha$ing /urisdiction in appeas fro! an% such
court' and
(b) The tribuna sha en&uire into the !atter
and ad$ise the 0eads of Bo$ern!ent or the
Co!!ission( as the case !a% be( #hether or
not the 8resident or the "udge ought to be
re!o$ed fro! office,
6, The pro$isions of an% a# reating to the
hoding of co!!issions of in&uir% in the .e!ber
State of the Caribbean Co!!unit% #here the
in&uir% is hed sha app% as near% as !a% be in
reation to tribunas appointed under paragraph
6 of this Artice or( as the conte)t !a% re&uire(
to the !e!bers thereof as the% app% in reation
to Co!!issions or Co!!issioners appointed
under that a#,
*, 9f the &uestion of re!o$ing the 8resident
or an% other "udge of the Court fro! office has
been referred to a tribuna under paragraph 6 of
this Artice( the 0eads of Bo$ern!ent in the
case of the 8resident( or the Co!!ission( in the
case of an% other "udge of the Court( !a%
suspend such "udge fro! perfor!ing the
functions of his office( and an% such suspension
!a% at an% ti!e be re$o<ed b% the 0eads of
Bo$ern!ent or the Co!!ission( as the case
!a% be( and sha in an% case cease to ha$e
effect if the tribuna ad$ises the 0eads of
Bo$ern!ent or the Co!!ission that the "udge
ought not to be re!o$ed fro! office,
9, (1) The 8resident !a% at an% ti!e
resign the office of 8resident b% #riting under
the hand of the 8resident addressed to the
Chair!an for the ti!e being of the Conference,
(2) An% other "udge of the Court !a% at an%
ti!e resign the office of "udge of the Court b%
#riting under the hand of the "udge addressed
to the Chair!an of the Co!!ission,
Dougas 5 .endes S,C,
=ctober 2005
2+