JUDICIAL APPROACHES TO LIMITATION CLAUSES IN COMMONWEALTH CARIBBEAN BILLS OF RIGHTS Arif Bulkan Faculty of Law, University of the West

Indies

1.

Introduction In interpreting the constitutional Bill of Rights, Commonwealth Caribbean courts

are routinely confronted with an exercise requiring Solomonic ingenuity. The rights and freedoms entrenched therein, all forming part of a larger document that proclaims its supremacy, are simultaneously limited by each other as well as by a range of other interests, the latter often subsumed under notions of the common good. Broadly speaking, these express limitation clauses can be classified according to one of three different types: a general introductory limitation that appears in all of the Constitutions except those of Trinidad and Tobagos and Jamaicas,1 second, a so-called police power limitation attaching to many of the detailed rights (that is, limitations to advance certain types of public interest)2 and third, limitations peculiar to specific rights. Instances of the latter are, for example, exceptions to the property right to permit taxation, or exceptions to the liberty right to permit pre-trial and post conviction detention. Wherever their location, however, invariably stipulated in relation to all three types is a requirement of proportionality, that is to say, in order to constitute a valid encroachment on a guaranteed right, a law or other measure must be reasonably required to promote or advance the stated interest.

In fact, references to limits appear twice in this introductory provision (except in the Constitution of Guyana where it appears once), these being the rights and freedoms of others and the public interest: see the Constitutions of Antigua and Barbuda 1981, s.3; Bahamas 1973, s. 15; Barbados 1966, s. 11; Belize 1981, s. 3; Dominica 1978, s. 1; Grenada 1973, s. 1; Guyana 1980, art. 40(2); St. Kitts & Nevis 1983, s. 3; St. Lucia 1979, s. 1; and St. Vincent and the Grenadines 1979, s. 1. 2 A typical formulation is for a law making some provision reasonably required in the interests of defence, public safety, public order, public morality or public health.

The difficulties in reconciling these potentially antagonistic interests have been evident from the very inception of constitutional adjudication, revealed time and again in the inconsistent standards applied by Commonwealth Caribbean courts. Primarily, it is the ambiguities of the text itself that have supplied this room for maneuver: what exactly, after all, is the meaning and scope of public safety, or 'reasonably required', or a 'democratic society'? Add to such terminological ambiguity the copious detail of the permissible limits themselves, and the result is a distinctly state-centric document, one where, as Yash Ghai despairs, rights are struggling to stay afloat in the sea of exceptions (and alas not always succeeding!).3 In the face of these doctrinal challenges, the formulation of clear guidelines by which the limitation clauses can be rationally construed has proven to be an elusive goal. Instead, in balancing rights against restrictions, courts of the Commonwealth Caribbean have sheltered behind a variety of techniques so as to avoid the strain of rigorous analysis. Often, the approach has been purely mechanical, so that once a limiting law is alleged to or even appears to fall within a permissible limit, it is automatically saved. Or, not infrequently, concepts like margin of appreciation and presumption of constitutionality have been trotted out from the jurisprudence of the European Court on Human Rights in order to legitimize these perfunctory exercises. The result is that in spite of the odd case where limiting legislation has been subject to strict scrutiny most notably those with some link to expression and political notions of democracy in a clear majority of them judges seem content to defer subserviently to legislative and/or executive will.

Yash Ghai, The Kenyan Bill of Rights: Theory and Practice in Promoting Human Rights through Bills of Rights: Comparative Perspectives 187, 197 (Philip Alston ed., 1999)

By way of comparison, the unique character of the European Convention on Human Rights as a document intended to protect the rights of individuals has influenced an interpretive technique that is both practical and effective.4 What this means is that the European Court treats the Convention as a living instrument, conscious that the societal attitudes which bear upon rights evolve constantly.5 This requires exceptions to be narrowly construed, and more importantly that where rights are already limited, they are not subject to further implied limitations.6 However, even though emulation of these techniques would be perfectly legitimate given the provenance of Commonwealth Caribbean Bills of Rights, our courts have borrowed selectively, and not where this would enlarge the scope of protection under the Bills. The result of this attitude has been not merely an uneven jurisprudence, but one that signally fails to attain the standard expected in relation to a constitutional document, even after more than four decades of independence in parts of the Caribbean. Yet, the value of Bill of Rights adjudication can hardly be questioned. This document, which stands like a sentinel between State and citizen, has functioned as and still remains one of the most powerful tools for protecting against governmental excesses and generally for securing responsible and just governance. In the post-colonial Caribbean, a plethora of civil and political disputes have engaged a broad range of fundamental rights. To name only a few, the scope of the liberty right7 as well as emergency powers8 was tested and developed during the Black Power movement in the late 1970s; the prodemocracy struggle in Guyana against the Burnham dictatorship in the 1980s involved
4 5

Soering v United Kingdom (1989) 11 EHRR 439 para. 34 Tyrer v United Kingdom (1978) 2 EHRR 1 para. 16 6 Golder v United Kingdom (1975) 1 EHRR 524 para. 44 7 Thornhill v Attorney-General of Trinidad and Tobago (1976) 31 WIR 498 8 Attorney-General v Reynolds [1979] 3 All ER 129

litigation of a number of civil rights, particularly the freedoms of expression9 and movement;10 in several of the Eastern Caribbean States, Antigua and Barbuda being a prime example, political domination by one party has been resisted partly through litigation of expression11 and equality12 rights; while the property right has been at the centre of numerous disputes between State and citizen in several countries as financial regulation, debt restructuring, and the dictates of multilateral financial institutions have encroached upon the everyday lives of citizens.13 This list is by no means exhaustive, and it suffices to say that the Bill of Rights has played a critical role in the politics of the region, with its relevance and popularity showing no signs of waning.14 Ultimately, the significance of Bill of Rights adjudication has been expressed most forcefully by Professor Simeon McIntosh, who declares that constitutional democracys claim to moral distinction as a form of political rule rests largely on its recognition and enforcement of certain fundamental rights and values which express the idea of the individual as the moral center of society. Put differently, the fundamental rights and freedoms, listed in the Bill of Rights of virtually every written Western Constitution, are understood to constitute the moral core of the constitution; their pivotal importance to the ultimate political question of right governance can therefore never be overstated.15
9

Hope v New Guiana Co. Ltd (1979) 26 WIR 233; Many of the cases of this period are unreported, but for an overview see Andrew Morrison, Justice: The Struggle for Democracy in Guyana, 1952-1992 (Georgetown: Red Thread Womens Press, 1998), 196-244 and R James and H Lutchman, Law and the Political Environment in Guyana (Turkeyen: IDS, 1984), 64-7 10 James and Lutchman, ibid at 38-40 11 There are a surprising number of cases with overtly political overtones. For a small sample see: A-G of Antigua and Barbuda v Antigua Times [1976] AC 16; (1975) 21 WIR 560; Hector v A-G of Antigua and Barbuda [1990] 2 A.C. 312; Observer Publications v Matthew [2001] UKPC 11, (2001) 58 WIR 188 12 Camacho and Sons v Collector of Customs (1971) 18 WIR 159; A-G of Antigua and Barbuda v Cuthwin Lake (1998) 53 WIR 145 13 Gladwyn King v Attorney-General of Barbados (1993) 45 WIR 50; A-G of Guyana v Caterpillar Americas (2000) 62 WIR 135; [2003] 3 LRC 1 14 In Trinidad and Tobago, for instance, the number of judicial review applications more than doubled over a short six year period: M. de la Bastide, Judicial Supervision of Executive Action in the Commonwealth Caribbean Inaugural Telford Georges Memorial Lecture, University of the West Indies, Barbados, 31 st March 2006, online at http://www.caribbeancourtofjustice.org/speeches/president/Telford%20Georges%20Memorial%20%2007%2 004%2006.pdf (last accessed June 22, 2011) 15 Simeon McIntosh, Caribbean Constitutional Reform: Rethinking the West Indian Polity (Kingston: Caribbean Law Publishing Co., 2002) 227

Given the enormity of the issues at stake, how courts approach limitations on fundamental rights figures as one of the most important issues in contemporary constitutional law. To this end, therefore, this paper will examine the techniques deployed by Caribbean courts in assessing the reasonableness of limiting laws and action. This discussion will be carried out within the framework of the standard limitation clause, focusing in particular on two key constituent elements namely, the rationale for limiting fundamental rights (as expressed in the list of permissible legislative objectives) and the appropriate standard of review. It will include scrutiny of the various interpretive techniques relied on by the courts, as culled from some of the leading cases. The aim is to initiate discussion of some of the more critical issues in this area, for the tremendous promise of the Bill of Rights for fashioning more just and equitable post colonial societies will not be fully realized as long as judges do not take a more principled approach towards the interpretation of limitation clauses.

2.

Establishing a Breach of a Constitutional Right The starting point in considering the constitutionality of limiting laws or action is

necessarily establishing that there has been a breach. This may seem to be a purely routine exercise, and often it is, but it is not unknown for courts to have shut down legitimate claims even at this preliminary stage. In Frank Hope & A-G of Guyana v New Guiana Co. Ltd,16 for example, the Court of Appeal of Guyana borrowed a dubious direct impact test from India to find that there had been no violation of the respondent companys freedom of expression. The respondent was the publisher of the main Opposition newspaper in the
16

Supra note 9

country, and it brought the action because of delays it experienced in obtaining permission to import newsprint, a difficulty which the state-run newspaper as well as the one of the ruling party did not face. According to the court of appeal, however, the two trade orders which instituted the licensing requirement ostensibly operated in the field of commerce and did not directly hinder the respondents rights. Reliance on the object of legislation (whether trade or some other public purpose) in order to deny the existence of a breach relieves a court of carrying out any complicated balancing exercise of right against restriction. The result of Hope was to secure for the government an almost complete monopoly of the news media,17 thereby demonstrating how the lack of a principled approach to limitation clauses undermines the potential role of fundamental rights in promoting democracy and ensuring just governance. That Hope cannot be confined to a bygone era is clear from a recent decision of the Privy Council where the issue under consideration was whether the imposition of a toll on a redesigned public highway violated the appellants right to property.18 The appellants were a group of residents who depended heavily on the said road for access to the capital and who claimed that the toll would have a disproportionate impact on them. Their lordships accepted that a taking or acquisition could occur not only through direct appropriation, but also by regulations which affect the property owner to a sufficiently serious degree. But even though regulations could result in significant adverse economic effects on property owners, certain types--such as those carried out in the public interest-may not be justiciable. In this case since the toll road would be attended by considerable benefits, no one using the English language could say that there had been a taking of

17 18

James and Lutchman (n 9) 153 Campbell-Rodrigues and others v AG of Jamaica [2007] UKPC 65

property in other words, the regulatory action being in the public interest meant that there was no violation of the right.19 The sleight of hand perpetrated by the Privy Council in denying the appellants claim was so adroit that it almost escapes notice. By conflating two aspects of the test--that is, finding that there was no acquisition because the legislative measure was for the public benefit--just as in Hope they foreclosed any need for a rigorous analysis whereby the constitutionality of a limitation must be judged by reference to a test of reasonableness or proportionality. In other words, the justification for the measure was used to find that there was no breach of the right in the first place, whereas accepting that there had been a breach would have required an examination of the reasonableness of the measure. These cases are not isolated ones,20 and it seems that where a court does not want to scrutinize legislative or executive action whether out of expediency, cowardice, or just plain inertia, a finding of no breach is a convenient avoidance technique. They therefore serve as a reminder to litigants of the obvious, namely that establishing a breach is a crucial preliminary step which must be approached with care.

3.

The Basis of Interference with Constitutionally Protected Rights At the heart of all rights claims is the appropriate balance to be drawn between

individual rights and community interests. The limitation clauses invariably supply both the permitted objectives of limiting laws as well as the required test of their validity, but the generality of their formulation leaves unanswered a number of relevant issues. Two of these in particular demand careful reflection: first, the meaning (and proof) of
19 20

Ibid., at para 19 Devroy Thomas and Arau Village Council v A-G of Guyana, unreported, Civil Action #166-M of 2007 [decision dd 30 April 2000]

constitutionally stated objectives, and second, an exercise of far greater complexity, the method for working out the appropriate standard of review. I propose to examine the first of these issues in this section, and the second in the part 4 of this article.

3.1

Constitutionally Specified Objectives: an Exhaustive List? Each of the guaranteed fundamental rights, including even those that prohibit

slavery and cruel punishments, contemplates limits that are peculiar to its sphere of operation. Thus, for example, the right to life may be forfeited where a person is placed in a situation requiring the use of reasonably justifiable force in self-defence,21 expression and assembly rights are limited where the right-holder is employed in certain public capacities,22 the prohibition against slavery and forced labour does not cover labour required as a result of a court sentence,23 and so on. Invariably, these objectives are fairly specific and not much dispute exists as to their meaning or scope. But that still leaves to be decided whether the list of exceptions is exhaustive. On this point, Caribbean courts have not always displayed restraint. In Bahamas District of the Methodist Church v Symonette and others,24 the Privy Council declared that the list of exceptions to the property right enumerated in s. 27(2) of the Bahamas constitution was to be understood as a valuable guide and not an exhaustive statement, while in A-G of Guyana v Caterpillar Americas25 a majority of the Court of Appeal of Guyana imported the American doctrine of eminent domain into Guyanese law, thereby giving the State the legal capacity to acquire private property for public purposes.
21 22

Constitution of St Vincent and the Grenadines, s. 2(2)(a) Constitution of Antigua and Barbuda, s. 12(4)(b) 23 Constitution of Barbados, s. 14(3)(a) 24 Bahamas District of the Methodist Church v Symonette and others (2000) 59 WIR 1 25 Supra note 13

According to Kennard C, eminent domain is an essential attribute of sovereignty, though he failed to explain how such a general power could be reconciled with private rights to property guaranteed in a written constitution expressly declared to be supreme. Most recently, in the Jamaican toll road case, the Privy Council extrapolated from public health limits mentioned in the opening section to the Bill of Rights to legitimize restrictions in the general public interest. While the rights guaranteed in this opening section were found not to be separately enforceable, ironically the limits mentioned therein as happened in Symonette helped to rationalize a general, public interest limitation of the detailed property right. Such an expansive approach to limitations runs counter to the interpretive technique most associated with Bill of Rights adjudication, that of generous interpretation.26 The latter was posited as the appropriate approach from very early on, its converse necessitating that derogations from rights be given a narrow construction.27 By way of comparison, the European Court of Human Rights has drawn a distinction between Convention rights stated in general terms and those where limitations have been included, holding that it is only permissible to imply limits on rights in the former category. A similar approach would leave no room for implied limits on rights in the Caribbean Bills, which are all subject to detailed limitations, but our courts have not treated themselves thus inhibited. As seen in each of the cases cited above, where none of the constitutionallyspecified objectives covered the situation at hand the courts simply implied a general limitation in the vaguely stated public interest so as not to invalidate executive action. Reading further limits into a document that is already replete with exceptions is a miserly

26 27

Minister of Home Affairs v Fisher (1979) 44 WIR 107; [1979] 2 WLR 889; 3 All ER 21; [1980] AC 319 R v Hughes [2002] UKPC 12; 60 WIR 156; [2002] 2 WLR 1058 at para. 35

approach to constitutional interpretation. Aside from indicating the low value placed on the rights themselves, such an approach is not consistent with that established for interpreting fundamental rights, and these cases must surely be viewed as wrongly decided on this point.

3.2

Examining the Goals of Limiting Legislation Where limitation clauses do specify permissible legislative objectives for

overriding rights and as mentioned above they invariably do in great detail an interesting question is whether such itemization forecloses scrutiny of those objectives. There is no dispute that courts can or ought to do so in relation to constitutions where rights are set out broadly. Section 1 of the Canadian Charter of Rights and Freedoms 28 is the prime example of this model, guaranteeing a number of specific rights and freedoms subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. As a result, the task of fashioning guidelines for limits has fallen to the courts, and in response the test formulated by the Supreme Court of Canada to assess the reasonableness of limiting legislation requires as its starting point an examination of the goal promoted by the impugned legislation. In other words, a reviewing court must first examine whether a sufficiently important objective exists to warrant limiting a constitutionally protected right or freedom.29 Since Caribbean constitutions (save that of Trinidad and Tobagos, the only one modeled on the Canadian Charter) specify the permissible goals, can or ought courts pass judgment on the importance of legislative

28 29

Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), c. 11 R v Oakes [1986] 1 S.C.R. 103

10

objectives? There are, in my view, two aspects to this inquiry one substantive and the other merely procedural.

Identifying the object of impugned legislation may not be straightforward Procedurally, the difficulty relates to the context in which an examination of the reasonableness of limiting legislation takes place. The legislative object may not be evident upon reading the law in question, in which case a reviewing court can either speculate as to Parliaments intent or it can call for evidence. In Antigua Times, one of the earliest cases where this dilemma was confronted, the Privy Council opted for the former course. The offending legislation, which imposed a hefty licence fee on newspapers, was challenged on the ground that it infringed the respondent newspapers freedom of expression. The Privy Council held that the fee was reasonably required for the purpose of raising revenue and was therefore constitutional. But the apparent innocuousness of this ruling is belied by the fact that the limiting sub-section of the right as set out in the Antiguan constitution made no exception for taxation or the raising of revenue. Moreover, since monies paid into the Consolidated Fund can be applied to any public purpose, and not necessarily those itemized in the limiting subsection, a finding of constitutionality required a further guess namely, that the revenue thereby raised would be used to promote one of the goals listed in the limitation clause (whether defence, public safety, public order, public morality or public health apparently it did not matter which one). Thus in the absence of any evidence from the State, the Privy Council nonetheless saved a law that significantly curtailed a fundamental right by piling one assumption on another.

11

This kind of perfunctory assessment of challenged laws ensures that whatever the legislature enacts will be intra vires the constitution. Had it persisted as an interpretive technique, it would certainly have led to the withering of constitutional rights in place of Parliamentary supremacy. But from about the beginning of the last decade the Privy Council clarified that where a prima facie infringement of a guaranteed right is established, though the offending law or action can be saved if it falls within the range of permitted objectives, the onus clearly lies upon those supporting the restriction to show that it is so reasonably required.30 Such a burden can only be properly discharged by actual evidence as to the purposes of the law in question, and in one case the Board actually remitted the case to the High Court for it to consider evidence bearing upon the environmental, economic and social conditions locally that would justify a monopolistic arrangement limiting the respondents right to freedom of expression.31 However, it is not at all certain that courts appreciate the implications of this burden, and a recent case from the Court of Appeal of the Eastern Caribbean States illustrates this clearly. In Chief of Police & Attorney General of St. Kitts v Calvin Nias,32 the law under which respondent was charged33 criminalised abusive language uttered in a public place. The trial was stayed in the Magistrates' Court pending the respondent's challenge to the constitutionality of section 8(a) on the ground that it violated his right to freedom of expression. In conducting its review, the Court of Appeal simply accepted the assertion made by the Chief of Police at the trial that the prohibition was

30 31

Matthew (n 11) Cable and Wireless (Dominica) Ltd v Marpin (2000) 57 WIR 141; [2001] 1 LRC 632; [2001] 1 WLR 1123 32 Chief of Police and another v Nias (2008) 73 WIR 201 33 Section 8(a) of the Small Charges Act, Chapter 75 of the Revised Laws of St Christopher & Nevis, 1961

12

intended to promote public morality.34 There was no indication in either of the judgments as to how such an intention was divined by the witness, and for their part the judges seemed untroubled by the clear absence of any basis for such a conclusion. But this surely cannot be an appropriate method of scrutinizing legislation, and certainly not where the possibility existed that it was the constitutional provision itself which may have shaped the witness opinion. For the exercise to have any meaning it ought to commence with an informed and honest assessment of the laws objective. Where the legislative objective is assumed (as in Antigua Times) or uncritically accepted from a witness with no expert knowledge (as in Nias), the unavoidable impression is that the court is positioning itself to save the law in question.

Scrutinizing the meaning of the constitutional limit It may be that once the legislative objective is identified the rest of the exercise is purely mechanical since Caribbean constitutions specify what the permissible restraints are. If so, this would foreclose the availability of an approach similar to what obtains under the Canadian Charter where judicial second guessing of the importance of legislative objectives is rationalized by the fact that the latter document tersely permits reasonable limits without specifying what those are. Thus the Supreme Court of Canada has held that a limiting law must be of sufficient importance in order to override a constitutionally protected right or freedom, with importance being constituted by an objective related to concerns that are pressing and substantial in a free and democratic society.35 However, in

34 35

Nias (n 32) at p 211 (per Rawlins CJ) Oakes (n 29) at paragraph 69

13

spite of the detail of Caribbean limitation clauses, in at least one Caribbean case36 it appears that legislation was struck down because a court found its objects, as distinct from its means, to be excessive which would make this a singular instance of judicial overriding of a legislative goal. Still, not much can be extrapolated from this case, for the courts findings were declared without any acknowledgement of the source of its power to invalidate legislation for this reason. Whatever the merits of the existing case law, an inquiry that simply involves examining whether a limiting statute falls within a constitutionally specified exception is unsatisfactory as it assumes too much as regards legislative competence or even bona fides. To begin with, there is the danger that the list of restraints specified in the constitutional provision may itself suggest the objective of the challenged law (as apparently occurred in Nias). Where this happens, a law could conceivably be saved despite its effects, provided that some heading can be found in the limitation clause in which to categorise it. In other words, by focusing on the legislative intent to the exclusion of the laws effects a court could bypass hard questions around proportionality and reasonableness. Second, and closely linked to the above reason, is the fact that the constitutionally permitted goals, or some of them at any rate, are very broadly drawn. The police power limitation, for example, covers defence, public safety, public order, public morality and public health. These terms are so fluid that they could conceivably validate a wide spectrum of highly invasive laws. Could public order, for example, operate to stifle dissent and standard forms of protest in a democracy? This was precisely the outcome in Francis v Chief of Police, where the Privy Council interpreted the public order limitation
36

Gulf Rentals Ltd v Evelyn and Carvalho BB 1983 HC 32

14

broadly in order to accommodate the mere comfort and convenience of others.37 In this way, the Chief of Polices unfettered discretion to ban the use of noisy instruments in public was found to be constitutional. This would have been entirely unremarkable if the noisy instrument in question was a boom box, but instead it was a public address system required to facilitate a political rally. Francis therefore underscores the necessity for a careful reading and scrutiny of the constitutional limit, for a loose interpretation could operate to obliterate, as opposed to merely limit, the corresponding right. These concerns have been reinforced by Nias, where the justification in question was found to be public morality, arrived at through a superficial and perfunctory analysis. Both judges attempted to essay some elaboration of what is meant by public morality, but the conundrum they found themselves in by so attempting only served to highlight the obscurity of the concept. Rawlins CJ acknowledged that public morality is an elusive concept, and accepted the submission of counsel that it could not be equated with religion or derived from any particular doctrine.38 But having identified what it is not, the Chief Justice had considerably more difficulty in articulating what it is. He accepted the submission of the State that public morality is related to good or bad conduct and that immorality has to be determined by the moral standards of society.39 But this was hardly helpful, and the circularity of the argument that immorality is measured by morality is at best bewildering. The Chief Justice continued in circles, however, holding that public morality encompasses those normative values of a society, which reflects the principles and moral standards, which form the society's code of good conduct, which values are

37 38

Francis v Chief of Police (1973) 20 WIR 550 Nias (n 32) p. 211 39 Ibid p. 212

15

generally accepted and adhered to by the society.40 Paraphrased, this statement is simply that public morality includes society's values, which reflects moral standards or good conduct accepted by the society--so ultimately all that the Chief Justice seems to have worked out is that public morality is a reflection of society's moral standards or goodness (whatever that is), or even less helpfully, that public morality is not immorality. Edwards JA attempted a more informed stab at the meaning of the concept, but her appeals to the views of legal philosophers were too superficial and biased to be persuasive. She cited Lord Devlin's Jacobean Lecture on the enforcement of morality delivered in the mid-sixties,41 which took the position that public morality is a cohesive force of a society so that any deviations therefrom had to be resisted in the interest of the continued survival of the society. Lord Devlin painted an apocalyptic view of violations to society's moral code, for its loss could result in no less than the society's disintegration. Edwards JA enthusiastically endorsed this perspective, holding it to be eminently applicable to the necessity of maintaining sanctions against the kind of language used by the appellant. But this was altogether too unsatisfactory in the face of a constitutionally protected right of expression, especially given the serious questions regarding the theoretical and empirical bases of Lord Devlin's arguments--none of which the learned Judge considered. For example, it is by no means certain that societies have any fundamental agreement about good and evil as Lord Devlin claims. This is too stark an assertion, and in our heterogeneous Caribbean societies it is a fair assumption that there are many issues about which there is or can be no easy classification between Manichean categories of good and evil. Implicated here are very serious difficulties regarding the identification of

40 41

Ibid. Patrick Devlin, The Enforcement of Morals (London: OUP, 1968)

16

this shared morality, and the need to distinguish between morality and preference - bearing in mind Ronald Dworkin's caution that the morals of even the largest mob do not come warranted for truth.42 An even more problematic issue is the utter lack of any empirical support for Devlin's view that a shared morality (and therefore its continued preservation) is essential to a society's existence. Indeed, Hart counters that Lord Devlin's thesis is disconnected from contemporary social reality.43 There are not only considerable problems in identifying the elements of this shared morality, but equally difficult would be to ascertain how far toleration of deviation is permissible (for surely morality en banc cannot be regulated and enforced). These may all seem to be abstruse philosophical issues, out of place in a courtroom, but they are unavoidable where morality is invoked as a legitimate objective. Instead, however, we are left in the Nias judgment only with glib assertions as to the necessity of enforcing public morality without any clear guidance as to what it is or how it may be identified or why such a course is necessary in the first place. At the very least, constitutionally permitted goals should be intelligible and identifiable; where they are not, as is the case with amorphous concepts like public order and public morality, courts must clarify what they mean from the outset. Thereafter, they have a further duty to resist the temptation to give such limits free reign as the textual ambiguity might permit, for if not, this could result in the complete obliteration of the right as happened in both Francis and Nias.

42 43

Ronald Dworkin, Taking Rights Seriously (London: Duckworth, 1977) 240 H.L.A. Hart, Law, Liberty and Morality (Oxford: OUP, 1968) 63

17

4.

The Appropriate Standard of Review The next limb of analysis involves an inquiry whether impugned legislation or

action pursuant thereto is reasonably required for the constitutionally-stated purpose as identified. The simplicity of the formulation belies the range of issues that are implicated, at the heart of which is the uncertainty as to the weight to be accorded what are often competing interests. Does the assertion of the collective good automatically serve to override an individual right? Or must the interference not transgress a particular line, beyond which a fundamental right is inviolable? At best, these kinds of inquiries have received only perfunctory consideration in our courts, and an examination of decided cases reveals little consistency in the approach to the clauses.

4.1

Early Approaches to Reasonably Required Two early constitutional cases decided within five years of each other--both dealing

with the police power exception to the rights of expression and assembly--set the tone for how courts were to flounder over these issues. In Chief of Police v Powell44 a statute requiring the permission of the Chief of Police for all meetings, gatherings and assemblies of persons in every public place was held to be unconstitutional because its definition of 'public place' was overly broad, capturing private places to which the public had access, and also because the discretion given to the COP was unfettered in that it specified no criteria to guide him in deciding whether to grant or withhold his permission. Because of these defects, the trial judge held that the statute was not 'reasonably required' for the stated interests (specifically, the preservation of public order).

44

Chief of Police v Powell (1968) 12 WIR 403

18

However, a mere five years later when a similar provision came to be considered in Francis v Chief of Police,45 the Privy Council held that the failure of the Act to stipulate any guidelines for the exercise of the COP's power in determining whether to permit the use of noisy instruments in public did not render it unconstitutional. It is well established that criminal statutes must pass a test of legal certainty so that persons are able to regulate their behaviour accordingly, but the deficiency of the Act in this regard did not render it 'seriously' defective; moreover, their Lordships interpreted the 'public order' limitation broadly in order to accommodate the mere comfort and convenience of others. Ignored by them was any consideration of the importance of the rights at stake, and in particular the crucial role of political meetings to the maintenance of democracy in small societies. The dangers of subjecting the granting of permission to the unregulated discretion of a member of the executive, the implications of a refusal on the ability of citizens to mount political campaigns, and the imbalance between the comfort and convenience of persons on the one hand and upholding democratic traditions on the other were all factors that received no consideration in the judgment, despite their obvious relevance. As for Powell, it barely got passing mention, despite the careful and insightful analysis of reasonableness conducted by the trial judge in that case. These divergent approaches are explicable not only by reason of their Lordships' lack of accountability, but more fundamentally because the courts had yet to work out a principled approach to the limitation clauses. More specifically, the question remained unanswered, possibly even unasked, regarding the appropriate nexus between right and restriction as warranted by the term reasonably required.

45

Francis (n 37)

19

Subsequent cases seemed to suggest a purely mechanical exercise, where once legislation could be classified as falling within one of the specified exceptions then that would be enough to guarantee its constitutionality. Antigua Times, where the Privy Council supplied both the reason for the licence fee and the purposes to which the revenue thereby raised would be put, best illustrates this servile approach.46 The constitutional limitation did specify certain goals such as defence, public safety, public health and so on, but government expenditure necessarily extends beyond these categories. There was no evidence upon which it could be concluded that monies raised by the licence fee would be applied to one of those purposes, so the conclusion to this effect by their Lordships was pure conjecture. Such subservience to the legislative will is not in evidence in other commonwealth jurisdictions, however, where judiciaries have formulated rigorous tests by which to assess the constitutionality of legislation which limits fundamental rights. In Canadian law, for example, the leading authority is R. v. Oakes,47 where Dickson CJ articulated a two-part test for assessing the reasonableness of legislation. As discussed above, the first part requires that the legislative object to be identified, and only a sufficiently important objective, which is one that relates to pressing and substantial concerns, can justify overriding a Charter right. In the second stage of the test, the court must then examine the proportionality between the social objective as identified and the means used to achieve it. To satisfy this second limb, it must be shown that (i) the legislative measures are rationally connected to the objective in question, are carefully tailored to achieve its purposes and are not arbitrary, unfair or based on irrational considerations; (ii) the means

46 47

Antigua Times (n 11) at p 574 Supra note 29

20

employed limit the right or freedom in question as little as possible; and (iii) there is proportionality between the deleterious effects on the right or freedom and the social benefit of the law. Unlike the cases disposed of under Caribbean Bills of Rights, Oakes thus demands thoughtful balancing between right and restriction. The exercise is not confined to issues of form, but requires scrutiny of the legislative goals, in the course of which courts are required to weigh the law's benefits against its harmful impact on individual interests. What is also useful about the Oakes approach is that it outlines various criteria in order to guide the balancing exercise, which have in turn been replicated or copied across a wide variety of common law jurisdictions, including (somewhat desultorily) here in the Commonwealth Caribbean.

4.2

Shifts in the Caribbean Approach to Reasonably Required In 1998, for the first time, there was an attempt to articulate for the Caribbean a

structured approach to the limitations clauses along the lines of Oakes. In de Freitas v Permanent Secretary,48 the appellant, a civil servant in the Ministry of Agriculture in Antigua & Barbuda, took part in a picket outside of the Ministry. He was interdicted from duty pursuant to legislation that prohibited civil servants from publishing information or expressions of opinion on matters of national or international political controversy, whereupon he sued alleging a contravention of his rights of freedom of expression and freedom of assembly and association. Under the constitution of Antigua and Barbuda, both of these rights can be limited by a law that imposes restrictions upon public officers that

48

(1998) 53 WIR 131

21

are reasonably required for the proper performance of their functions,49 so the question arising in the case was whether this exception could save the legislation under which the Ministry purported to act. The Privy Council held that it could not, because the law was stated without qualification and therefore could not be said to be reasonably required. In their words, [a] blanket restriction on all civil servants from communicating to anyone any expression of view on any matter of political controversy would in the view of their Lordships be excessive. It would not satisfy the qualification in the Constitution that the restriction be reasonably required for the proper performance of their functions.50 Moreover, the provision was too wide in its scope and potential application, akin to the American concept of overbreadth. Their Lordships adverted to the decision of the United States Supreme Court in NAACP v Button,51 which held that First Amendment rights can only be regulated with narrow specificity. This meant that vague and overly broad penal statutes could not be tolerated, particularly where they are susceptible of sweeping and improper application. De Freitas is invaluable in that it brings the focus right back to the issue of the appropriate nexus between right and restriction. However, the trouble with the decision of the Privy Council is that while it tells us what is not reasonably required, namely a limiting law which is excessive or overly broad, it does not tell us what would be considered reasonably required, or better still, how a court is to determine what is reasonably required. After all, establishing a positive is an entirely different exercise to merely striking down a

49 50

Constitution of Antigua and Barbuda 1981, ss. 12(4)(b) and 13(2)(b) respectively de Freitas (n 48) at pp. 139-40 51 NAACP v Button (1963) 371 US 415

22

negative, and subsequent cases have shown how difficult the former exercise is. Nias is a prime example, for it slipped through all the cracks left open by de Freitas. In Nias, the Court of Appeal practically ignored the first part of the test which requires an examination as to whether the offence (in that case the criminalisation of abusive, blasphemous, indecent, insulting, profane or threatening language in a public place) is capable of promoting the constitutional goal (identified by the witness as public morality). Not only is the existence of any such connection very dubious, but the enforcement of morality is not necessarily the same thing as its promotion. As it was succinctly put by Crane CJ in a Guyanese case, certain ethical rules are best left to the good sense of the public and not to the crude compulsion of the law.52 At any rate, if the mere utterance of abusive language could violate public morality and lead to a disintegration of society, there is no logical basis for criminalising only public utterances. However, despite the validity of these concerns, none of them received any attention from the court. In addition, a limiting law must satisfy the further hurdle of being reasonably required for a stated goal, but the Court of Appeal glossed over this issue also. The Chief Justice placed the threshold of unconstitutionality very low, finding that abusive language is offensive where it is not acceptable to bystanders or where it does not reflect the prevailing social mores in general. Quite apart from the dilution of morality to social mores (hardly the same concept) one can imagine that what is merely unacceptable to others could be enough to capture a potentially unlimited category of speech that would have no effect on public morality even if such a thing existed. Edwards JA turned to a dictionary, but the definition she relied on actually emphasizes graphically how elastic the
52

Dolly Kendal and others v Mohamed Khan (1979) 26 WIR 433

23

word abusive is, for it referred to meanings that include insulting, scornful, undignified, disrespectful and immodest. Abusive, then, is not to be equated simply with profanity, but could include risqu language, insulting language (such as 'you are an idiot') and a potentially unlimited list of words and expressions. Not only is such a prohibition excessive and therefore not 'reasonably required' under a Powell or de Freitas approach, but the court's failure even to specify the offending words used by the respondent robs us of an opportunity to determine how abusive is to be interpreted and applied in future cases. Intimately connected to these concerns, but also neglected by the Court of Appeal, was the issue of the disproportionate effect of holding such a wide category of words to be prohibited. This raises the third aspect of the Oakes proportionality test, summarised by Professor Hogg as requiring an assessment of whether the infringement of a right is too high a price to be paid for the benefit of the law.53 To its credit, the State provided an opportunity for the exploration of this issue by submitting that the trial judge failed to consider that the social value of the language proscribed is outweighed by the social interest in public safety, order or morality. In other words, this raised the question whether contested forms of expression should be contextualised, or weighted according to their value. But the court laconically declined to address this issue, or even the wider one of the impact of the statutory prohibition on all forms of expression. Either way, this was a significant omission, for the prohibition of 'abusive' language has unlimited potential to trench on a wide category of expression, including political commentary, drama, literature and music. Some of these are uniquely part of our Caribbean culture (and ironically our morality as defined by Rawlins CJ), and one has only to think of the music of Sparrow, the
53

Peter Hogg, Constitutional Law of Canada (Scarborough: Thomson Carswell, 2007) 829

24

poetry of Miss Lou or the speeches of Rodney to be reminded of the immense social value that is served by these various forms of expression, but which are well known to be insulting, scornful, undignified or disrespectful. Clearly then, the statutory prohibition is capable of having a disproportionate effect on the freedom of expression, and for this reason it ought to have failed the test of reasonableness as understood under evolving notions of human rights jurisprudence. Instead, the court of appeal subjected it to a superficial review and found it, incredibly, to have passed constitutional muster with flying colours.54 Despite the myriad problems in the reasoning in Nias, this case by itself ought not to be sufficient to turn back the clock, and Caribbean courts need to return to de Freitas for guidance in interpreting limitation clauses. De Freitas established that the governing test is one of proportionality that is, the means of achieving the laws object must not have an excessive effect on the constitutional right. This approach represented a return to that adopted a quarter of a century before in Powell, where the challenged law had been found to be unconstitutional because the discretion it conferred was unfettered and its restriction was capable of very broad application. To recap, then, where the constitutionality of a limiting law is in issue there are two elements to be considered: one, whether the law is required to promote the specified goal, and two, whether the law satisfies the degree or extent of that connection specified by the provision (that is, whether it is reasonably required). This calls for a balancing exercise, where the benefits of limiting legislation are measured against its deleterious effects on the fundamental right. And the simplest way of assessing this is that limiting measures must not be excessive, total or unqualified, nor must they confer unfettered discretion.
54

Nias (n 32) at p. 224 (per Edwards JA)

25

4.3

Presumption of Constitutionality An approach favoured by Caribbean courts in examining the reasonableness of

limiting legislation is applying a presumption of constitutionality, by which very little has to be done since the statutes constitutionality is simply presumed. Where applied it functioned as an evidential presumption, imposing a burden--and a heavy one at that--on those challenging the legislation to prove otherwise. One of the earliest cases to articulate this approach was Hinds v R,55 where the constitutionality of legislation that provided a scheme for separate trials of firearms offences was under consideration. Echoing the language of the Constitution,56 one provision of the Act provided for trials in camera in the interests of public safety, public order or the protection of private lives of persons concerned in the proceedings In considering whether this section violated the constitutional right to a public trial, the Privy Council started with the presumption that the statutory provision was reasonably required for the stated purposes. Since the appellants had adduced no evidence to rebut this presumption, the inevitable conclusion was that the provision for trials in camera was covered by the limiting clause and therefore constitutional. Thus the mere invocation of the presumption was enough to validate a challenged provision with no necessity of having to balance the legislative goal (or the benefit of the law) against its deleterious effects on the right in question. Put another way, whether the law was reasonably required (in terms of proportionality of its effects) received no consideration.

55 56

Hinds et al v The Queen (1975) 24 WIR 326; [1977] AC 195 Constitution of Jamaica 1962, s. 20(4), which set out the police power limitation to the right to a public trial.

26

The high-water mark of this approach must be Antigua Times, where, as discussed already, the Privy Council conjured a reason for the impugned licence fee in the absence of any evidence to this effect from the State. According to their Lordships: In some cases it may be possible for a court to decide from a mere perusal of an Act whether it was or was not reasonably required. In other cases the Act will not provide the answer to that question. In such cases has evidence to be brought before the court of the reasons for the Act and to show that it was reasonably required? Their Lordships think that the proper approach to the question is to presume, until the contrary appears or is shown, that all Acts passed by the Parliament of Antigua were reasonably required. This presumption will be rebutted if the statutory provisions in question are, to use the words of Louisy J, 'so arbitrary as to compel the conclusion that it does not involve an exertion of the taxing power but constitutes in substance and effect, the direct execution of a different and forbidden power'.57 Here, the effect of the presumption was to save legislation that significantly trenched on a constitutional right, but which was resoundingly silent as to its purposes. This approach to judicial review renders Parliament virtually unaccountable, not the least because ordinary litigants would be saddled with an almost impossible burden of disproof. For close to two decades, however, this application of the presumption has been recognised as an inappropriate, even unjustifiable, method of analysis. One of the earliest instances where the Privy Council began to distance itself from this mechanical approach came in a Gambian case, AG v Momudou Jobe,58 where Lord Diplock described the presumption as but a particular application of the canon of construction embodied in the Latin maxim magis est ut res valeat quam pereat which is an aid to the resolution of any ambiguities or obscurities in the actual words used in any document that is manifestly intended by its makers to create legal rights or obligations. What this meant is that instead of constituting an evidential burden, the presumption of constitutionality operates as an
57 58

Antigua Times (n 11) at 573-4; (emphasis supplied) AG of Gambia v Momodou Jobe [1984] AC 689

27

interpretive technique which allows a court to save a statute - but only where the latter is ambiguous and it is possible to read words into it. This altered view of the presumption first appeared in the commonwealth Caribbean in Hector v AG of Antigua and Barbuda,59 and it was soon followed by other cases.60 Since then, however, there has been a disturbing trend in recent cases to revert to the old approach to the presumption as if these developments never occurred. In Nias, for example, the Chief Justice of the Court of Appeal of the Eastern Caribbean States made the astonishing statement that in reviewing legislation for unconstitutionality, the court always applies the presumption of constitutionality. According to him, this meant that legislation is presumed to be constitutional unless there is clear proof to the contrary. The burden is upon the applicant to rebut the presumption.61 To be fair, in the following paragraph the Chief Justice appeared to moderate this proposition by clarifying that the practical effect of the presumption is that a court would refrain from invalidating legislation if it is possible to bring it into conformity with the Constitution by making reasonable modifications. The problem is, however, that the two paragraphs are incompatible, in that the Chief Justices conception of what the presumption means and how it is applied as set out in the first paragraph certainly does not lead to the practical effect he describes in the following one. Local courts can be forgiven some degree of confusion, for as recently as 2007 Baroness Hale in the Privy Council stated that the constitutionality of a parliamentary enactment is presumed unless it is shown to be unconstitutional and the burden on a party

59 60

Hector (n 11) De Freitas (n 48) and Matthew (n 11) 61 Nias (n 32) at p. 206

28

seeking to prove invalidity is a heavy one.62 This was in the course of an appeal from Trinidad and Tobago where the Board was examining the constitutionality of the Equal Opportunity Act. In support Baroness Hale cited another decision of the Privy Council from 2007,63 but that case relied in turn on Mootoo v AG of Trinidad and Tobago,64 which, having been decided in 1979, had long since been superseded by other cases such as Jobe, Hector and de Freitas. The doubts recently introduced into this area by the Privy Council in Grant and Suratt have been compounded by Nias and other Court of Appeal cases,65 so that the altered meaning of the presumption is in danger of dissipating. This would be a retrograde step, for the application of the presumption in the old sense places an impossible burden on litigants and it would convert a constitutional challenge into a purely mechanical exercise.

4.4

The Margin of Appreciation Conceptually, according a margin of appreciation to legislation is quite similar to

presuming its constitutionality, insofar as each is a form of judicial deference resulting in the saving of legislation. In the jurisprudence of the European Court of Human rights the expression has two distinct meanings, one whereby international supervision by the Court gives way to the States discretion in legislating for itself, 66 and the other which acknowledges the extent to which the judiciary as an institution is competent to assess

62 63

Suratt and others v AG of Trinidad & Tobago (2007) 71 WIR 391 at 409; [2007] UKPC 55 [45] Steven Grant v The Queen (2006) 68 WIR 354 64 Mootoo v AG of Trinidad & Tobago (1979) 30 WIR 411 65 Ferguson and Galbaransingh v A-G of Trinidad and Tobago, unreported, Civil Appeal 2010-185, decision dated 17 December 2010 66 Handyside v United Kingdom (1976) 1 EHRR 737

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legislation.67 Clayton and Tomlinson characterise the former as an interpretive obligation and the latter as a standard of judicial review.68 Where this term has been used in the Commonwealth Caribbean, these two meanings have not always been differentiated clearly. In Grape Bay v Attorney-General, where the issue involved the constitutionality of a law that prohibited restaurants like McDonalds (that is, those with a foreign affiliation) from operating in Bermuda, Lord Hoffman stated: Their Lordships would accept that Bermudians are in the best position to know what the public interest of Bermuda requires. But the Constitution lays down a separation of powers between the executive, legislature and judiciary. On a matter such as the desirability or otherwise of franchise restaurants, which is a pure question of policy, raising no issue of human rights or fundamental principle, the decision-making power has been entrusted to those Bermudians who constitute the legislative branch of Government and not to the judges.69 The first sentence of this paragraph reads like an international court deferring to national discretion or expertise, though the Privy Council is not an international court akin to the European Court of Human Rights but sits instead as the final court of appeal for those states accepting its jurisdiction. Thereafter, however, the inhibiting factor articulated by Lord Hoffman is really judicial deference to the will of the legislature. Such fluidity is unfortunate, for it is only by an appreciation of why deference is being accorded that a court can decide firstly whether deference is in fact appropriate, and then the degree to which the legislatures view should prevail.

67

Powell and Rayner v United Kingdom (1990) 12 EHRR 355 and Lopez Ostra v Spain (1994) 20 EHRR 277 (both cases involved balancing individual rights to private and family life against community interests, in the first instance related to an international airport and in the second in relation to a waste treatment plant). 68 R Clayton and H Tomlinson, The Law of Human Rights (Vol. 1, OUP 2000) paragraph 6.32 69 Grape Bay v Attorney General of Bermuda (1999) 57 WIR 62 at 74

30

Characterisation aside, a more troubling issue is the tendency of judicial deference to become judicial abandonment. In Grape Bay Lord Hoffman treaded dangerously close to the latter when he asserted that the members of the legislature are not required to explain themselves to the judiciary or persuade them that their view of the public interest is the correct one. Their lordships note that in the Court of Appeal Kempster JA commented that the legislature rather than the courts is in the best position to assess the requirements of the public interest and should be allowed a wide margin of appreciation. Their lordships agree.70 On the facts of Grape Bay such a stance may have been justifiable, but this is hardly appropriate as a general position. Once again, Nias provides a perfect example of the danger of unquestioning subservience to the legislature. Here, not only did the Court of Appeal fail to provide adequate guidance as to the meaning of or the necessity for enforcing public morality, but it was actually unprepared to do so on the ground that since the Legislature had already determined what types of language offended public morality it was in no position to decide otherwise.71 According to Edwards JA, The court should be slow to interfere when it comes to moral issues which are better decided by Parliament.72 Having earlier equated public morality with prevailing social mores, it was nothing short of absurd for the Court of Appeal to hold that an 1892 statute, reflecting the Victorian sensibilities of its time, could accurately reflect the morality of Kittian society more than a century later. Because according a margin of appreciation to the legislature is really about deference and restraint, its indiscriminate application defeats the purpose of judicial review. In discussing the application of the Human Rights Act in the UK, several judges

70 71

Ibid Nias (n 32) at p. 213 (per Rawlins CJ) 72 Ibid at 223

31

have placed significance on the fact that the doctrine arose in recognition of the supranational function of the European Court of Human Rights, which makes it out of place for domestic courts when considering purely local disputes.73 On the other hand the Canadian Supreme Court has adopted a more nuanced position, and in one case Dickson CJ helpfully explains that when mediating between the claims of competing groups, which involves assessment of conflicting scientific evidence and the allocation of scarce resources, the legislature as a representative institution is best placed to make the appropriate choices.74 This point is well made, but as Dickson himself acknowledges, there are good reasons why a court can and should take a more assertive position when reviewing the constitutionality of state action. One instance posited by him is where the government is the singular antagonist of the individual whose right has been infringed; 75 in such cases, of which de Freitas is a prime example, the government admittedly has an interest to serve, making a higher level of scrutiny by the court entirely appropriate. To this can be added other justifications, such as where issues of criminal procedure and due process are involved, in which courts possess considerably more experience than legislatures. Ultimately, it seems that some supervision by the judiciary is beneficial, and Lord Hoffmans position that the legislature is in the best position to decide what is in the public interest is too categorical. Even where the legislature is mediating between competing groups such as balancing a ban on cigarette advertising76 or a telecommunication monopoly77 against freedom of expression, or rent restriction

73 74

R v DPP, ex p Kebeline [1999] 3 WLR 972, per Lord Hope at 993-4 Irwin Toy Ltd v Quebec [1989] 1 S.C.R. 927 at 993 75 Ibid at 994 76 Ibid 77 Marpin (n 31)

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legislation against rights to private property,78 or domestic violence protections against individual rights to liberty and property79 courts still have a useful role to play. Their insulation from both political pressures and special interest groups means that courts may be able to assess evidence more dispassionately to arrive at more neutral positions, despite their lack of specialist knowledge. Thus while according a margin of appreciation may be appropriate in certain instances, a court should not reflexively shrink from scrutinizing executive and even legislative action, and certainly not where the statue under consideration is, as was the case in Nias, more than 100 years old.

4.5

The Shadow of the Common Law An unfortunate trend in Bills of Rights cases has been the inhibiting influence of

the common law, which has occasionally dictated the scope of fundamental rights despite the innovation of their constitutional enshrinement. The tone was set by Nasrallas infamous declaratory theory,80 which meant that a broadly worded right not to be tried twice for the same offence or any other criminal offence of which [the accused] could have been convicted at the trial81 was held to be co-extensive with the common law doctrine of autrefois acquit, under which proof of a verdict of acquittal and not mere peril of conviction was required. 26 years after Nasralla the same attitude prevailed when the Privy Council came to consider the extent of the duty on the prosecution under s. 20(2)(c) of the Jamaican constitution, which conferred a right to adequate time and facilities for defence. Holding that this did not include a right for the defence to have statements of co-

78 79

Morgan v A-G of Trinidad and Tobago (1987) 36 WIR 396 Francois v A-G of St Lucia LC 2001 HC 16 (24 May 2001) 80 DPP v Nasralla (1967) 10 WIR 299; [1967] 2 AC 238 81 Set out in the Constitution of Jamaica 1962, s. 20(8)

33

accused who struck a deal with the State (or, incredibly, even advance notice of the deal), Lord Woolf said that the provisions of s. 20 do no more than codify in writing the requirements of the common law which ensure that an accused person receives a fair trial They do not contain any specific requirement as to what is to be provided to a defendant before trial.82 The baleful effects of the common law were prominently on display in Mohamed v Morraine where a female student challenged the decision of a quasi-public school to prevent her from attending school wearing a modified version of the school uniform which conformed to the hijab.83 After a lengthy discourse on the history of religious freedom at common law, the Judge came to the astonishing conclusion that the Trinidad and Tobago Constitution is fashioned along the Canadian Bill of Rights, not the Charter of Rights and Freedoms. It recognises pre-existing rights which...do not exist in a vacuum. Accordingly, no new constitutional rights and freedoms are created.84 The result was that despite the denial of the applicants ability to practice her religion, not to mention the unequal treatment to which she was subject, the Court found no breach of any constitutional provision. It cannot be denied that the common law has a useful role in the interpretation of rights and freedoms, for admittedly the framers of the Constitutions were not writing on a blank slate. But to be slavishly bound by common law understandings would tether human rights jurisprudence to a bygone era and stunt its evolution and growth. At common law rights obtained in a negative sense, whereas constitutional rights are set out in great detail with remedies provided for their breach. As the Privy Council famously proclaimed in the
82 83

Franklyn and Vincent v R (1993) 42 WIR 262 at 268 (1995) 49 WIR 371 84 Ibid at 398

34

historic Pratt and Morgan decision, the primary purpose of the Constitution was to entrench and enhance pre-existing rights and freedoms, not to curtail them.85 This represented a critical paradigmatic shift with implications for the scope of rights, but constant referencing of the common law position will only serve to frustrate this great promise.

4.6

Reasonably Justifiable in a Democratic Society One final component of the reasonableness test concerns a proviso which appears

only in the limiting clauses of the most recent Bills of Rights, that is, those in the Constitutions of the Eastern Caribbean States.86 This proviso adds a further requirement to the effect that even where a law is found to be reasonably required it may still be invalidated if the applicant can establish that it is not reasonably justifiable in a democratic society. In de Freitas, although the law was invalidated at the first stage as not reasonably required, the Privy Council proceeded to consider the meaning of this final proviso. Borrowing from the jurisprudence of Canada and South Africa, they held that three factors were important in assessing the quality of reasonableness in the expression reasonably justifiable in a democratic society, namely, whether: (i) the legislative objective is sufficiently important to justify limiting a fundamental right; (ii) the measures designed to meet the legislative objective are rationally connected to it; and (iii) the means used to impair the right or freedom are no more than is necessary to accomplish the objective.87

85 86

Pratt and Morgan v Attorney-General of Jamaica [1993] 3 WLR 995 at 1010 Antigua and Barbuda, Bahamas, Dominica, Grenada, St Kitts and Nevis, St Lucia and St Vincent and the Grenadines 87 de Freitas (n 48) p. 144

35

Articulating this test in relation to the proviso which appears only in a handful of Bills and which, even then, only needs consideration after an initial finding of reasonableness, was akin to putting the cart before the horse. Where a breach of a fundamental right is established then whether the limiting law or action is reasonably required is invariably the first issue to be determined in almost all of the Bills of Rights. It was on this preliminary issue, then, that the Privy Council needed to provide detailed guidance, but which they neglected to do. One way of addressing this omission would simply be to apply the three criteria to any analysis of reasonably required that is, at the very first stage. There would seem to be nothing untoward in doing so, considering that the original author of the test formulated it in relation to section 1 of the Canadian Charter, which guarantees rights subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. In other words, section 1 of the Charter is not similarly bifurcated and both conditions reasonable limits prescribed by law and reasonable limits that are demonstrably justified in a democratic society appear in the same sentence. Thus the elaborate test fashioned by Dickson CJ in Oakes was meant to apply to both elements, and it was simply unreflective copying by the Privy Council that accounts for its application in de Freitas only to the final proviso. A return to the original purport of the three criteria test as a measurement of proportionality would thus justify its application to the initial determination of reasonably required and provide much needed clarity in this area, as well have the added benefit of laying down a standard test of reasonableness in relation to all limitation clauses.

36

The only risk of approaching limiting clauses in this way where both reasonably required and reasonably justifiable in a democratic society are measurable by the same test of proportionality is that it could render the latter phrase otiose. However, this need not be the case, for this proviso can add value beyond the test of proportionality conducted at the first stage. At a minimum, it adds a further layer of protection for individual rights where the public interest prevails at the first stage. Thus however important the objective and however tailored is the limiting law towards achieving that objective, courts must go on to consider the meaning and ramifications of a democratic society and whether the public interest justifies the invasion of the fundamental right. Such an inquiry evidently calls for a more contextualized analysis, with consideration being given to the nature of the society and its democratic traditions. A useful starting point would be the Constitutions themselves, which give the Bill of Rights pride of place at the very beginning, safeguarding them from partisan amendment by deep entrenchment. The Preambles reinforce this vision, unequivocally proclaiming a commitment to fashion just and equitable societies. The preambles to the Antiguan and Dominican constitutions are striking illustrations: these refer to the fact that the citizens of these countries are now free and contain multiple acknowledgements of principles like social justice, equality, democracy, and respect for inalienable human rights and freedoms. Altogether, they project a compelling image of post colonial societies conscious of their brutal past and committed towards a more equitable future. More pertinently, written Constitutions heralded a significant transition from parliamentary sovereignty to that of constitutional democracy. Taking all this history and context into account, then, considering whether a limiting law is reasonably justifiable in a democratic society is a

37

final, important safeguard, not to be trivialized or treated as replicating a bare proportionality test. The crux of the matter would seem to be that this proviso demands a final balancing of the benefits and impacts of any limiting measure, considered in a fuller context.

5.

Conclusion As the foregoing suggests, what is most striking about rights jurisprudence in the

commonwealth Caribbean is its unevenness, with every development or step in one direction matched by a reversal or step in another direction. What makes the overall picture reminiscent of some schizophrenic condition is that chronology cannot account for these irreconcilable outcomes, which have been known to occur within the same period or in inverse order (that is to say, advances being succeed by reversals). One need only juxtapose cases like Powell88 and Francis,89 Hector90 and Suratt,91 de Freitas92 and Nias,93 or Pratt and Morgan94 against Mohamed v Morraine,95 to see how incoherent human rights jurisprudence is overall. Making sense of these outcomes is equally complicated, for closer examination of these cases reveals a number of different factors at work, operating singly or on occasion in varying combinations. For example, the newness of constitutional adjudication must have been a factor in cases like Nasralla where the constitutional right in issue was defined by reference to the common law. This was entirely predictable, even understandable, for judges steeped in the
88 89

Supra note 44 Supra note 37 90 Supra note 11 91 Supra note 62 92 Supra note 48 93 Supra note 32 94 Supra note 85 95 Supra note 83

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latter and now making a transition to assessing supreme, entrenched rights for the first time. But inexperience can hardly explain why three decades later, in cases such as Franklyn and Vincent or Mohamed v Morraine, the common law should still be in the vanguard of rights adjudication. These latter cases suggest, however, that the right matters, meaning that the courts have consistently approached some more restrictively than others. Thus, for example, public interest concerns have figured prominently in the interpretation of rights like the protection of the law and property, whereas in others like the prohibition of inhuman and degrading treatment or freedom of expression courts have been less timorous about embracing a more liberal agenda. But while this would explain the dismantling of the mandatory death penalty around most of the commonwealth Caribbean over the last two decades, or the unequivocal championing of political dissent in a series of expression cases, it does not square with cases like Charles Matthew96 or Boyce and Joseph97 (where the Privy Council called an abrupt halt to its activism in appeals from Trinidad and Tobago and Barbados respectively on the mandatory death penalty), or with expression cases like Hope and Nias. What the contrary death penalty and free speech cases indicate, however, is that institutional experience and biases are a major factor. In its heyday, the Privy Council could boast of a number of judges (such as Lords Wilberforce, Diplock, Scarman, and later Lords Hoffman and Bingham) who embraced their role in the new constitutional order vigorously, producing judgments of impeccable scholarship. Since the advent of the UKs own Human Rights Act, however, commonwealth Constitutions no longer provide the only

96 97

Charles Matthew v The State (2004) 64 WIR 412 Boyce and Joseph v R (2004) 64 WIR 37

39

locus for exploring constitutional issues in depth. The result has been a loss of interest in the region, overtly proclaimed by Lord Phillips when bemoaning the financial drain of appeals from the Caribbean,98 and covertly expressed by his colleagues in their weak and inconsistent judgments. Institutional inexperience is not confined to the Privy Council, as demonstrated by some of the judgments in the middle. Otherwise, there is simply no way to explain a decision like Nias from the Court of Appeal of the Eastern Caribbean States, which displays an embarrassing unfamiliarity with developments in the law. These problems are likely to persist, given the lack of adequate reporting of judicial decisions in the region. Alternatively, or perhaps in addition, it is clear that context matters, whether this is economic, political or cultural. Culturally, it is probably fair to say that the Caribbean region is deeply conservative, which accounts for a skewed proportionality analysis when issues like public morality or the punishment of crime are under consideration. Political conditions have also been hugely influential in places like Guyana, best demonstrated by the series of decisions of the 1980s where constitutional litigation by opposition activists routinely floundered. These restrictive outcomes could well have been the result in other parts of the Caribbean, such as Antigua and Barbuda for example, were it not for the retention of the Privy Council which is entirely immune from political pressures. Thus what should be reasonably clear from all this is that no single factor accounts for the uneven human rights jurisprudence in the Caribbean. Indeed, given the variety of complicating factors it hardly seems surprising that constitutional adjudication in the post colonial Caribbean developed unsteadily. These difficulties were not entirely unexpected,

98

http://www.bbc.co.uk/caribbean/news/story/2009/09/090922_privyccjphillips.shtml (last accessed July 25, 2011)

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as evinced by the debates around the inclusion of Bills of Rights in Independence constitutions. Drafters were well aware of the hard choice they faced: if the rights were not made enforceable they would be of no consequence, but if inserted as binding provisions they could prove to be extremely disruptive.99 The compromise was to make fundamental rights applicable only to future laws,100 but hindsight has shown that this conceded too much to governments and helped to perpetuate the hegemony of common law doctrines and the common law mindset. However, now that some Caribbean territories are approaching half a century of independent rule, the need to address and correct these shortcomings seems long overdue. Ultimately, the goal must be achieving a more principled approach to rights adjudication, and one which is more consistently applied. Whatever the right in issue, or the prevailing political climate, or the cultural context, or the court in question, it is only by striking an appropriate balance between rights and restrictions that the Bill of Rights can become, as McIntosh envisioned so long ago, the moral core of our Constitutions.

99

S. A. de Smith, The New Commonwealth and its Constitutions (Stevens & Sons 1964) Chapter 5 By means of a general savings law clause, inserted in the Constitutions of the countries that attained independent status before 1974, namely Jamaica, Trinidad and Tobago, Guyana, Barbados and the Bahamas, which operated to protect existing laws from constitutional challenge specifically in relation to the fundamental rights provisions
100

41