CONSTITUTIONAL PROTECTION OF FUNDAMENTAL RIGHTS IN GUYANA
CONFERENCE PRESENTATION 25TH NOVEMBER 2000.
Stephen G.N. Fraser·
The very first constitutional protection for fundamental rights, or Bills of Rights as it is familiarly called, in the Commonwealth Caribbean was introduced in the pre-independence 1961 British Guiana constitution.[1] The Bill of Rights was retained in the 1966 Independence Constitution as well as the 1970 and 1980 Republican Constitutions.
It was not long after the Bill rights was first promulgated that a challenge was successfully brought by litigants alleging that their fundamental rights had been contravened.
Inland Revenue Commissioner And Attorney-General v Lilleyman And Others[2], was the first Guyanese case on fundamental rights reported in the West Indian Law Reports. It was determined on appeal by the British Caribbean Court of Appeal. The presiding judges were Archer, P. Jackson and Stoby, JJA. Ramsahoye A-G, D A Singh and Ramkellawan appeared for the appellants, whilst L Luckhoo QC, Haynes QC, and Karran appeared for the respondents. Here a challenge was brought against legislation imposing compulsory savings on the citizenry. The legislation was held to be unconstitutional.
[Headnote]
Article 12 (1) of the Constitution of British Guiana prohibits the compulsory acquisition of any interest in or right over property of any description, and provides that no such property shall be compulsorily taken possession of, except by or under the authority of a written law, and when provision applying to that acquisition or taking possession is made by such a law requiring inter alia the prompt payment of adequate compensation. Article 12 (3) provides that subject to the provision of para. (5) nothing in the article shall be construed as affecting the making or operation of any law so far as it provides for the acquisition or taking possession of property in satisfaction of any tax, rate or due, etc Paragraph (5) is not relevant to the arguments in this matter. Article 61 (since repealed by the British Guiana (Constitution) Order, 1964, No 921 [BG]) provides as follows:
“Subject to the provisions of this Constitution, the Governor may, with the advice and consent of the Senate and the Legislative Assembly, make laws for the peace, order and good government of British Guiana.”
On 10 August 1962, the Governor assented to an ordinance which was duly passed by the legislature of British Guiana intituled the National Development Savings Levy Ordinance, 1962, No 16 [BG], the object of which was to make provision for the levy of compulsory savings to be utilised for works of development in British Guiana, and for the issue of bonds therefor, the payment of interest thereon and of prizes with respect thereto and for the redemption thereof. Section 6 (1)(a) of the Ordinance authorises the charge and collection of a levy at specified rates upon the emoluments of every individual employed in British Guiana or resident in British Guiana, while s 4 vests the Commissioner of Inland Revenue with the administration of the Ordinance.
Section 13 of the Ordinance makes provision for employers to deduct or withhold from emoluments paid to their employees an amount in respect of the levy, and for the payment of such amount to the Commissioner of Inland Revenue.
Acting in accordance with the provisions of s 13, the employers of the respondents made deductions from the emoluments of the respondents, and paid such deductions over to the Commissioner of Inland Revenue. The respondents thereupon brought an action against the Commissioner and the employers in which they sought a declaration that the provisions of the Ordinance are repugnant to art 12 of the Constitution, and a declaration restraining the Commissioner from taking steps to enforce the levy, and restraining the employers from deducting the levy from their emoluments. The Attorney-General was later joined as a defendant by an order of court.
The court of first instance found for the respondents and held that the Ordinance was repugnant to art 12 of the Constitution, but the Attorney General having given the undertaking on behalf of the Government to honour and act in accordance with the declaration of the court, no order was made against the Commissioner and the employers, with the result that the employers took no part in the arguments on appeal. On appeal.
Held: (i) that where there is a legislative plan, that plan must be looked at as a whole to determine the pith and substance of any legislation;
(ii) the true test of interpretation of an ordinance is the meaning of the actual words used, viewing the ordinance as a whole, and what matters is what the ordinance does, not the ultimate purpose it was intended to serve;
(iii) the three elements of a tax are that it must be imposed by the State, or other public authority, must be compelled, and the imposition must be for public purposes;
(iv) the power to legislate for the peace, order and good government of the country does not authorise the enactment of a law which contravenes the provisions of the Constitution which gives such power, even though such a law has been duly passed by the legislature;
(v) that money was property within the meaning to art 12 (1) of the Constitution;
(vi) the levy under the National Development Savings Levy Ordinance, 1962, No 16 [BG], is in the nature of a forced loan, and is neither a tax nor a due, and therefore is not protected by art 12 (3)(a) of the Constitution; the Ordinance is consequently ultra vires the legislature.
Appeal dismissed; Decision of trial judge affirmed.
Enforcement of fundamental rights in Guyana enjoyed an ambitious beginning and held promise for a future of dynamic development, recognition and consequently enjoyment of fundamental rights and freedoms in Guyana. (Inexplicably, the first instance judgment of Cummings upheld by this appeal is reported much later in the West Indian Law reports.[3])
Chapter III, Article 40 of the Schedule to the Constitution of the Co-operative Republic of Guyana,[4] intituled Fundamental Rights and Freedoms of the Individual, provides as follows:
CHAPTER III
Fundamental Rights and Freedoms of the Individual
40. (1) Every person in Guyana is entitled to the basic right to a happy, creative and productive life, free from hunger, disease, ignorance and want. That right includes the fundamental rights and freedoms of the individual, that is to say, the right, whatever his race, place of origin, political opinions, colour, creed or sex, but subject to respect for the rights and freedoms of others and for the public interest, to each and all of the following, namely—
(a) life, liberty, security of the person and the protection of the law;
(b) freedom of conscience, of expression and of assembly and association; and
(c) protection for the privacy of his home and other property and from deprivation of property without compensation.
(2) The provisions of Title 1 of Part 2 shall have effect for the purpose of affording protection to the aforesaid fundamental rights and freedoms of the individual subject to such limitations of that protection as are contained in those provisions, being limitations designed to ensure that the enjoyment of the said rights and freedoms by any individual does not prejudice the rights and freedoms of others or the public interest.
The importance and ambit of the provisions of this section have frequently been subsumed by reference to the better known articles 138 to 154 of the Constitution.[5] Historically, however, there is a justification for such a guarded approach. In Amerally v Bentham, Chancellor Haynes in the course of interpreting sections 3 and 10 of the Republican Constitution of Guyana[6], and in particular the right to protection of the law, which said sections roughly correspond with articles 40 and 144 of the 1980 Constitution, said,
And so the first question is: does art 3 guarantee these rights? At the Bar two rival views were submitted; one, that it is a preamble and nothing more; the other, that, in addition to being a preamble it is declaratory, constitutive and protective.[7]
He continues:
“. . . in modern Caribbean Westminster-model constitutions, the chapter on fundamental rights proceeds on the presumption that the rights which it covers, are already secured to the people by existing laws: per Lord Devlin in DPP v Nasralla ([1967] 2 All ER 161,[1967] 2 AC 238,[1967] 3 WLR 13, 111 Sol Jo 193, 14 (1) Digest (Reissue) 441, 3786)([1967] 2 All ER at p 165); or perhaps this theory is more accurately put in the words of Parnell J, in Banton v Alcoa Minerals ((1971), 17 WIR 275)((1971), WIR at p 304):
‘The fundamental rights and freedoms entrenched in the constitution are not different from those which were known and observed prior to independence. Some of them had already been put on a statutory basis before independence. For example, the right to join a trade union; the compulsory acquisition of property without adequate compensation; the right of a person not to be convicted of an offence without certain safeguards. If the right was not enforceable in a court of law, it was to some extent protected by the force of public opinion, eg, refusing to employ a man, otherwise suitable, on the ground of his race or the district he was born. What the Constitution has done is to entrench the right which had already existed, not for the purpose of enlarging its content or its area but for the purpose of making it difficult for a Parliament to abrogate, vary or otherwise interfere with these rights unless it should pass a special act amending the Constitution and following the elaborate procedure laid down by the Constitution itself.’
Accordingly the “declaratory force” of art 3 would then be the recognition in it of a number of pre-existing legal rights, intended to be guaranteed by “following” provisions.[8]
He continues,
. . . . if the constitution-makers intended art 3, like arts 4 to 17 inclusive, to constitute guaranteed rights, it would be difficult to explain satisfactorily, why it was omitted from art 19, which provides a more speedy procedure and more effective redress to enforce or secure the enforcement of the fundamental rights. Counsel’s submission was that it could be enforced by proceedings under the ordinary rules of court for the interpretation of the relevant provision of the Constitution. We again find difficulty in fitting such needless separation of remedies and duplication of the sources of the enshrinement of the fundamental rights into the constitutional structure. Moreover, if it be so, then, as pointed out to counsel during the arguments, the large majority (if not all) of the common law rights already secured by existing law before the Constitution came into force, would have become (by operation of art 3) guaranteed rights. Although counsel for the appellants recognised this consequence, his submission on art 3 was forcefully maintained. We find this plainly wholly untenable.
If the constitution-maker intended this, we would expect it to be achieved by the clear declaration of express words to that effect and not, so to speak, by implication. For all these reasons, we have reached the opinion that art 3 does not make any pre-existing right of any kind whatever, a fundamental or guaranteed one. Consequently, in any event, the case for the appellants so far as it rests on art 3 cannot be supported.[9]
Initially, doubt over the enforceability of the provisions of article 40 may have been clouded by the mere force of Haynes’ reasoning in Amerally v. Bentham. This, no doubt, led former Justice S. Y. Mohammed to say, "This paragraph introduces the fundamental rights and freedoms to which every individual is entitled. It is in the nature of a preamble. It sets out the aims and objects of the fundamental rights and freedoms provisions......[he cautions however] The statement that a preamble is not a part of a Constitution is not in accord with modern authorities [he refers to Seervai, Constitution of India (1967) 75]”[10]
Whether Chancellor Haynes was right or not never came up for reconsideration since the 1970 Constitution which he was interpreting was repealed and replaced by the 1980 Constitution of the Co-operative Republic of Guyana. In the context of the new Constitution, the Court of Appeal comprising Chancellor Kenneth George, and Justices of Appeal Kennard and Churaman, in Kent Garment Factory v. A.G. et anor,[11] held that article 40 was enforceable.
The current interpretation of Article 40 of the Constitution of the Co-operative Republic of Guyana is found in the words of Chancellor George, when in distinguishing article 40 from its predecessor, he said:
“Article 40 traces its origin to articles of similar import and content that are to be found in previous Constitutions, not only in this country but also in all those former colonial territories which have, on Independence become the recipients of what has come to be known as the Westminster constitutional model. In its original state it took the form of a preamble and was not as expansive as it now is. In the 1966 and 1970 Constitutions it was article 3 and read as follows:
‘Whereas every person in Guyana is entitled to the fundamental rights and freedoms of the individual, that is to say the right whatever his race, place of origin, political opinion, colour, creed or sex, but subject to respect for the rights and freedoms of the others and for the public interest, to each and all of the following namely:–(a) life, liberty, security of the person and the protection of the law;(b) freedom of conscience of expression of assembly and association;(c) protection of the privacy of his home and other property and from deprivation of property without compensation; the following provisions of this chapter shall have effect for the purpose of affording protection to those rights and freedoms …’[emphasis supplied]
Thereafter followed in the succeeding articles 4 to 17 the details of the actual protections afforded and the limitations to those protections. Similar provisions were contained in the Constitutions of Malta and Trinidad and Tobago. In Olivier v Buttigieg [1966] 2 All ER 459 at page 461, Lord Morris of Borth-y-Gest said in relation to the counterpart provision in the Malta Constitution that:
‘It is to be noted that the section begins with the word “Whereas”. Though the section must be given such declaratory force as it independently possesses, it would appear in the main to be of the nature of a preamble. It is an introduction to and in a sense a prefatory or explanatory note in regard to the sections which are to follow. It is a declaration of entitlement … The section appears to proceed by way of explanation of the scheme of the succeeding sections.’
Haynes C considered the above statement in Ameerally and Bentham v Attorney-General (1978) 25 WIR 272. He rejected the contention that in addition to being a preamble article 3 was declaratory, constitutive, and protective. He held (at pages 292 and 294) that ‘its true meaning and effect can be located in one or the other of … two explanations’, viz ‘declaring the entitlement of the citizens as human beings to the fundamental “human” rights and “human” freedoms and intention to guarantee the basic ones in subsequent provisions in the body of the Constitution’, or ‘declaring the entitlement to the rights in article 3 as existing common-law rights subject to be guaranteed similarly’. And as an additional reason for his conclusion he said (at page 294):
‘An additional reason for this is that if the constitution-makers intended article 3, like articles 4 to 17 inclusive, to constitute guaranteed rights it would be difficult to explain satisfactorily, why it was omitted from article 19, which provides a more speedy procedure and more effective redress to enforce or secure the enforcement of the fundamental rights.’
In his judgment Crane JA seems to have assumed that article 3 was declaratory of rights. He said (at page 305):
‘Article 19 is a procedural enforcement section which when read together with articles 3 and 4 to 17 has the effect of affording protection to those rights that are declared and entrenched in article 3.’
And later he said (on the same page):
‘Article 3 being, therefore, the source and main-spring of fundamental rights, it seems to me the true test is that the appellant has, first of all, to see whether the right he claims to be contravened lies among those in the main-spring.’
But . . . . . article 3 of the earlier Constitutions has been replaced by article 40 and in my view any controversy as to whether or not the replaced article is also preambulatory has been set at rest because of the definitive words used in the new article. The substituted article is a mix of idealism, and aspirations, of statements of principle and of entitlements. And among those entitlements is the right to the protection of the law, under article 40(1)(a)”.[12]
It must be mentioned in passing that contrary to popular belief the nature and scope of fundamental rights was expanded, rather than derogated from, by the 1980 Constitution.
There can now be little doubt that article 40 of the Schedule and to the Constitution of the Co-operative Republic of Guyana guarantees, subject to the rights and freedoms of others and for the public interest, the fundamental rights and freedoms of the individual.[13]
The modern approach to constitutional interpretation is to be found in, Minister of Home Affairs v Fisher[14] in the words of Lord Wilberforce when in considering whether the word ‘child’ as used in the Constitution of Bermuda included an ‘illegitimate child’, said as follows:
“So far the discussion has been related to Acts of Parliament concerned with specific subjects. Here, however, we are concerned with a Constitution, brought into force certainly by Act of Parliament, the Bermuda Constitution Act 1967 United Kingdom, but established by a self-contained document set out in Schedule 2 to the Bermuda Constitution Order 1968 (United Kingdom S.I. 1968 No. 182). It can be seen that this instrument has certain special characteristics. 1. It is, particularly in Chapter I, drafted in a broad and ample style which lays down principles of width and generality. 2. Chapter I is headed "Protection of Fundamental Rights and Freedoms of the Individual." It is known that this chapter, as similar portions of other constitutional instruments drafted in the post-colonial period, starting with the Constitution of Nigeria, and including the Constitutions of most Caribbean territories, was greatly influenced by the European Convention for the Protection of Human Rights and Fundamental Freedoms (1953) (Cmd. 8969). That Convention was signed and ratified by the United Kingdom and applied to dependent territories including Bermuda. It was in turn influenced by the United Nations' Universal Declaration of Human Rights of 1948. These antecedents, and the form of Chapter I itself, call for a generous interpretation avoiding what has been called "the austerity of tabulated legalism," suitable to give to individuals the full measure of the fundamental rights and freedoms referred to. 3. Section 11 of the Constitution forms part of Chapter I. It is thus to "have effect for the purpose of affording protection to the aforesaid rights and freedoms" subject only to such limitations contained in it "being limitations designed to ensure that the enjoyment of the said rights and freedoms by any individual does not prejudice... the public interest."
When therefore it becomes necessary to interpret "the subsequent provisions of" Chapter I - in this case section 11 - the question must inevitably be asked whether the appellants' premise, fundamental to their argument, that these provisions are to be construed in the manner and according to the rules which apply to Acts of Parliament, is sound. In their Lordships' view there are two possible answers to this. The first would be to say that, recognising the status of the Constitution as, in effect, an Act of Parliament, there is room for interpreting it with less rigidity, and greater generosity, than other Acts, such as those which are concerned with property, or succession. or citizenship. On the particular question this would require the court to accept as a starting point the general presumption that "child" means "legitimate child" but to recognise that this presumption may be more easily displaced. The second would be more radical: it would be to treat a constitutional instrument such as this as sui generis, calling for principles of interpretation of its own, suitable to its character as already described, without necessary acceptance of all the presumptions that are relevant to legislation of private law.
It is possible that, as regards the question now for decision, either method would lead to the same result. But their Lordships prefer the second. This is in no way to say that there are no rules of law which should apply to the interpretation of a Constitution. A Constitution is a legal instrument giving rise, amongst other things, to individual rights capable of enforcement in a court of law. Respect must be paid to the language which has been used and to the traditions and usages which have given meaning to that language. It is quite consistent with this, and with the recognition that rules of interpretation may apply, to take as a point of departure for the process of interpretation a recognition of the character and origin of the instrument, and to be guided by the principle of giving full recognition and effect to those fundamental rights and freedoms with a statement of which the Constitution commences. In their Lordships' opinion this must mean approaching the question what is meant by "child" with an open mind. Prima facie, the stated rights and freedoms are those of "every person in Bermuda." This generality underlies the whole of Chapter I which, by contrast with the Bermuda Immigration and Protection Act 1956, contains no reference to legitimacy, or illegitimacy, anywhere in its provisions. When one is considering the permissible limitations upon those rights in the public interest. the right question to ask is whether there is any reason to suppose that in this context, exceptionally, matters of birth, in the particular society of which Bermuda consists, are regarded as relevant.”[15]
In view of this expansive approach to be taken to the interpretation of written Constitutions, it is respectfully submitted, that the fundamental rights and freedoms of the individual fall to be interpreted in the context of the ever evolving and expanding recognition of the international ambit and flavour of fundamental rights and freedoms of the individual.
In Lewis et al. v The A.G. of Jamaica et anor[16] the questions to be determined by the Privy to Council were, firstly whether on a petition for mercy (after all other domestic attempts to set aside convictions or to prevent execution have been exhausted) the appellants are entitled to know what material the Jamaican Privy Council had before it and to make representations as to why mercy should be granted and, secondly, whether they have a right not to be executed before the Inter-American Commission on Human Rights or the United Nations Human Rights Committee has finally reported on their petitions.
It is instructive that during the course of delivering the judgment the Privy Council sought and found support for its decision in our very own, Yassin v Attorney General of Guyana.[17]
The majority judgment was delivered by Lord Slynn of Hadley. During the course of his delivery he said:
"Whether or not the provisions of the Convention are enforceable as such in domestic courts, it seems to their Lordships that the States’ obligation internationally is a pointer to indicate that the prerogative of mercy should be exercised by procedures which are fair and proper and to that end are subject to judicial review.
Later he says:
There was, however, in each of the present cases a breach of the rules of fairness, of natural justice, which means that the appellants did not enjoy the "protection of the law" either within the meaning of section 13 of the Constitution or at common-law. In considering what natural justice requires, it is relevant to have regard to the international human rights norms set out in treaties to which the state is a party whether or not those are independently enforceable in domestic law.
The Privy Council held that the convicted men were entitled to see the material before the respective Mercy Committees and make representations to the said Committees. In so far as the appellants had not been allowed to exercise these rights the respective States were in breach of the fundamental right to "protection of the law" and accordingly the sentences of death were set aside and commuted to life imprisonment.
The Privy Council in this decision had overcome the fallacious reasoning that attached to many of the decisions overruled by the Lewis case. In the previous cases where it was held that the court could not inquire into the functioning of the respective Mercy Committees the reasoning proceeded on the basis of the immunity from suit that attached to the exercise of the royal prerogative.
In the context of the United Kingdom constitutional system this approach is understandable, though increasingly falling into disfavour[18]. In the United Kingdom the monarch enjoyed several immunities at common-law. However, in the context of a written, rigid Constitution the immunities do not automatically apply. For instance, the procedure for the exercise of the Presidential Prerogative of Mercy is specifically set out in the Constitution.[19] Speaking of a similar provision in the Lewis case[20], Lord Slynn said:
There could in their Lordships view be no justification for excluding review by the courts if it could be shown that the Governor General proposed to reject a petition without consulting the Jamaican Privy Council, that the Governor General refused to require information recommended to be obtained by the Jamaican Privy Council or that the Governor General having required the information to be obtained, the Privy Council indicated that it refused to look at it. The same would be the position if it could be shown that persons not qualified to sit on the Jamaican Privy Council or were not members of the Jamaican Privy Council had purported to participate in one of the recommendations of the Jamaican Privy Council[21].
Quite apart from the dicta in the Lewis case[22], Article 144(8) of the Constitution of the Co-operative Republic of Guyana provides as follows:
(8) Any court or other tribunal prescribed by law for the determination of the existence or extent of any civil right or obligation shall be established by law and shall be independent and impartial; and where proceedings for such a determination are instituted by any person before such a court or other tribunal, the case shall be given a fair hearing within a reasonable time.
(9) Except with the agreement of all the parties thereto, all proceedings of every court and proceedings for the determination of the existence or extent of any civil right or obligation before any other tribunal, including the announcement of the decision of the court or other tribunal, shall be held in public.
It is difficult to see how a reasonably competent court would not appreciate that this article must apply to the Mercy Committee[23].
Notably article 99 of the Schedule of the Constitution of the Co-operative Republic of Guyana provides that executive authority shall vest in the President. The Constitution does not go on to say that the immunities also vest in the President. Indeed the immunities from suit that the President enjoys under the Constitution are set out in Articles 182 and 231. These immunities are subject to well know limitations as set out in Re: Application by Sarran[24], Evelyn v. Chichester[25], and Re: Application by Langhorne[26], (cases very ably argued by the irrepressible Mr. Benjamin Gibson of the Guyana Bar), Thomas v A.G. of Trinidad and Tobago[27], and Hochoy v Nuge et al.[28]
A limitation perceived to hinder Courts’ consideration of application for relief under the fundamental rights provisions arose out of the proviso to article 153 which specifies that the “ . . . . . High Court shall not exercise its powers under [article 153] if it is satisfied that adequate means of redress are or have been available to the person concerned under any other law.”
The provision was dealt with comprehensively by Persaud J. (Ag.) in English v AG.[29] After examining the authorities he concluded:
“I find that the proviso is inconsistent with the new right under paragraph [153](1) whereby any person may apply to this Court for redress "without prejudice to any other action with respect to the same matter which is lawfully available."
I do not accept the arguments of Counsel for the Respondent and reject his restrictive interpretation of Article 153. A review of the cases clearly demonstrates that the proviso is a dead letter and I am of the view that Article 153 should be read without reference to it.”
In the light of these post 1980 developments, it is respectfully submitted that attention must be refocused upon article 40. It is after all, by the provisions of the said article 40 that both the concept and factum of fundamental rights are inserted into the Constitution. Indeed the very article 40 prescribes that the provisions of Title I, Part II are for the protection of the fundamental rights enumerated in article 40. The fact that there may not be a specific protection in the provisions of Title I, Part II in respect of a specified fundamental right, does not and cannot mean that the right ceases to exist. Further the ambit of the fundamental right is not and cannot be limited to the extent of the protection provided by the provisions of Title I, Part II.
The apparent difficulty presented, however, by seeking to enforce a right under article 40 appears to be the absence of an enforcement provision in terms similar to those specified in article 153 in respect of articles 138 to 151. The question need be asked, therefore, whether in the absence of such provision an action can be brought for the enforcement of a right that exists solely under article 40? In answer to this question we note that the Privy Council, in the Lewis case[30], assumed that the powers and authorities invested in section 25 of the Constitution of Jamaica, the equivalent to article 153 of the Schedule to the Guyana Constitution, extended to breaches under section 13, the equivalent to article 40 of the Schedule to the Guyana Constitution. Like in Guyana, the Jamaican section 25 provision did not cover their article 13.
In Jaundoo v. Attorney General of Guyana[31] the Privy Council was forced to consider the procedure to be adopted by the plaintiff in the absence of any law having been enacted pursuant to the provisions of article 19 of the Guyana Independence. The Privy Council concluded that the absence of such law was not to be used to disentitle a plaintiff from seeking to enforce the provisions of the Constitution so long as one of the originating procedures was adopted. We see no reason why the reasoning of Lord Diplock, should not apply to an application under the Guyana Article 40. Lord Diplock says,
Chapter II of the Constitution of Guyana will have a hollow ring unless the fundamental rights which it bestows upon "every person in Guyana" are buttressed by an effective legal remedy[32]. . . . To deal first with the method of application by originating motion which the Chief Justice and the Chancellor rejected as impermissible. The right to apply to the High Court for redress is by paragraph (1) of article 19 conferred upon any person who "alleges that any of the provisions of articles 4 to 17 (inclusive) of this Constitution has been, is being or is likely to be contravened in relation to him." That right is expressed to be subject only to the provisions of paragraph (6). So long as nothing has been done by Parliament, or by the rule-making authority under the Supreme Court of Judicature Ordinance, to regulate the practice or procedure upon such applications, the right to apply to the High Court under paragraph (1) remains, in their Lordships' view, unqualified.
To "apply to the High Court for redress" was not a term of art at the time the Constitution was made. It was an expression which was first used in the Constitution of 1961 and was not descriptive of any procedure which then existed under Rules of Court for enforcing any legal right. It was a newly created right of access to the High Court to invoke a jurisdiction which was itself newly created by article 13 (2) of the 1961 Constitution now replaced by article 19 (2). These words in their Lordships' view, are wide enough to cover the use by an applicant of any form of procedure by which the High Court can be approached to invoke the exercise of any of its powers. They are not confined to the procedure appropriate to an ordinary civil action, although they would include that procedure until other provision was made under article 19 (6). The clear intention of the Constitution that a person who alleges that his fundamental rights are threatened should have unhindered access to the High Court is not to be defeated by any failure of Parliament or the rule-making authority to make specific provision as to how that access is to be gained. What Warrington J. said in In re Meister, Lucius and Bruning Ltd. (1914) 31 T.L.R. 28, 29 is in their Lordships' view applicable also to the instant case: viz.
"where the Act" (s.c. Constitution) "merely provides for an application and does not say in what form that application is to be made, as a matter of procedure it may be made in any way in which the court can be approached."
There is only one qualification needed to this statement. It is implicit in the word "redress." The procedure adopted must be such as will give notice of the application to the person or the legislative or executive authority against whom redress is sought and afford to him or it an opportunity of putting the case why the redress should not be granted. This would not, however, prevent the court from making conservatory orders ex parte pending the giving of such notice, if the urgency of the case so required.
An originating motion is one of the ways by which the court can be approached. That it is not the method by which proceedings are initiated to obtain the ordinary remedy by way of judgment in a civil action, does not make it any the less an application to the High Court. [33]
Further, apart from the fundamental rights enforcement provision contained in article 153 there is no similar provision to be found in respect of the enforcement of the other articles of the Constitution. Can it be said that in the absence of such provision that none but articles 138 to 151 is enforceable. Certainly not. Article 8 of the Schedule of the Constitution of the Co-operative Republic of Guyana provides as follows, "This Constitution is the supreme law of Guyana and, if any other law is inconsistent with it, that other law shall, to the extent of the inconsistency, be void.". This must have some meaning in law. It is respectfully submitted that the meaning is that the State and its citizens are subject to the constitution. Further, all other laws, whatsoever the source, are subject to the law of the Constitution of the Co-operative Republic of Guyana.
“This view is fortified by the approach taken by the Privy Council in the case of Bribery Commissioner v Ranasinge[34], where Lord Pearce said when speaking of the limitations imposed on Parliament by a written rigid constitution, ". . . . a legislature has no power to ignore the conditions of law-making that are imposed by the instrument which itself regulates its power to make law. This restriction exists independently of the question whether the legislature is sovereign, as is the legislature of Ceylon, or whether the Constitution is "uncontrolled," as the Board held the Constitution of Queensland to be. Such a Constitution can, indeed, be altered or amended by the legislature, if the regulating instrument so provides and if the terms of those provisions are complied with: and the alteration or amendment may include the change or abolition of those very provisions. But the proposition which is not acceptable is that a legislature, once established, has some inherent power derived from the mere fact of its establishment to make a valid law by the resolution of a bare majority which its own constituent instrument has said shall not be a valid law unless made by a different type of majority or by a different legislative process. And this is the proposition which is in reality involved in the argument.[35]”
If this restriction applies to the most powerful arm of the state, it must apply to the lesser arms. (I mean no disrespect to either the executive or the judiciary.)
Notably in the more recent constitutions of the Commonwealth Caribbean the draftsmen have thought it prudent to include a provision specifically providing for the enforcement of all of those sections other than the fundamental rights provisions.
The constitutional concepts of the rule of law and the separation of powers appear at present to have only a tenuous claim to lodging in the context of the Guyana Constitution. Indeed quite recently I was faced with an affidavit in answer in a matter, which shall remain nameless, in which the defendants swore that the concept of separation of powers does not apply to the Guyana Constitution. Both separation of powers and rule of law are considered concepts inherent in all Westminster type constitutions. It seems, therefore, naturally to fall within the ambit of article 40 which guarantees to any person in Guyana the right to protection of the law.
The doctrine of separation of powers finds its roots in Aristotle and Locke, but its most graphic formulation is by the French political philosopher Montesquieu, which is based on the early English constitution of the early 18th century, and may be stated as follows:
1. There are three main classes of governmental functions: the legislative, the executive and the judicial.
2. There are (or should be) three main organs of government in a state: the Legislature, the Executive and the Judiciary.
3. To concentrate more than one class of function in any person or organ of government is a threat to individual liberty. For example, the Executive should not be allowed to make laws or adjudicate on alleged breaches of laws; it should be confined to the executive functions of making and applying policy and general administration.
In the case of Hinds v. The Queen,[36] Lord Diplock was the first to recognise the concept in the context of a Commonwealth Caribbean Constitution. The Privy Council relied upon it in concluding that the Review Committee provided for by the provisions of the Jamaican Gun Court Act was unconstitutional. The full implications of this decision are as yet being realised in the various Commonwealth Caribbean territories.
[Head note]
Jamaica - Constitution - Gun Court - Act establishing courts to try firearms offences - Three magistrates to exercise Supreme Court jurisdiction - All proceedings in camera - Mandatory sentence determinable by executive - Whether unconstitutional - Whether invalid provisions severable - Jamaica (Constitution) Order in Council 1962 (S.I. 1962 No. 1550), Sch. 2, ss. 20 (4), 22 (2), 97 (1) (4) - Gun Court Act 1974 (No. 8 of 1974), ss. 3, 4, 8, 13 (1), 22
By the Gun Court Act 1974 the Parliament of Jamaica established a new court, the Gun Court, to try "firearms offences." The Act provided for three divisions of the court; the Circuit Court Division and the Resident Magistrate's Division, constituted by a Supreme Court judge and a resident magistrate respectively, and the Full Court Division constituted by three resident magistrates. The jurisdiction of the first two divisions was that of a Circuit Court and of a resident magistrate respectively in relation to firearms offences and certain other offences but extended geographically to cover the whole island instead of being restricted to specific parishes. The jurisdiction of the Full Court Division was, with the exception of capital offences, expressed to be over any firearms offence or other offence committed by a person detained for a firearms offence and was also to cover the whole island. Such jurisdiction, at the time the Constitution came into force, had been exercisable only by a Supreme Court judge in the Circuit Court. The Full Court Division had never sat.
The Constitution provided by section 20 (3) that all proceedings of every court should be held in public subject to the exceptions in subsection (4), by paragraph (c) (ii) of which a court was empowered to exclude the public in the interests of public safety, public order and for the protection of the private lives of persons concerned in the proceedings. The Gun Court Act provided by section 13 (1) that all trials should be in camera "in the interest of public safety, public order or the protection of private lives of persons concerned in the
proceedings...." Section 8 prescribed a mandatory sentence of detention at hard labour during the Governor-General's pleasure for specified offences, determinable only by the Governor-General on the advice of the Review Board. The Review Board established by section 22 of the Act consisted of five members of whom only the chairman was a member of the judiciary.
Each of the defendants was convicted in a Resident Magistrate's Division of the Gun Court for an offence carrying the mandatory sentence. They all appealed to the Court of Appeal against conviction and sentence on the grounds that the Gun Court Act or those of its provisions under which they had been tried and sentenced were inconsistent with the Constitution and void. The appeals of four of them were dismissed, that of the fifth allowed (by the Court of Appeal differently constituted). The unsuccessful parties appealed.
On appeal to the Judicial Committee: -
Held, (1) that the provisions of the Gun Court Act relating to the Circuit Court Division and the Resident Magistrate's Division which did no more than extend geographically the jurisdiction of a Supreme Court judge in a Circuit Court and a resident magistrate respectively were not contrary to the Constitution and were valid; accordingly, the defendants were convicted by a court of competent jurisdiction (post, pp. 215 G-H, 216D-E, 231D-E).
Per Lord Diplock, Lord Simon of Glaisdale and Lord Edmund-Davies. The attack on the constitutional validity of the provisions of the Gun Court Act and the argument based on their inseverability requires the Board, even though the defendants were tried and sentenced by a Resident Magistrate's Division, to rule on the validity of the provisions purporting to confer jurisdiction to try offences upon the Full Court Division of the Gun Court. Such rulings cannot be characterised as obiter dicta (post, pp. 210E, 211B). There is nothing in the Constitution to prohibit Parliament from establishing a court under a new name, but Parliament is not entitled to vest in a new court composed of members of the lower judiciary a jurisdiction that forms part of the existing jurisdiction of the Supreme Court and, accordingly, the provisions of the Gun Court Act 1974, in so far as they provide for the establishment of a Full Court Division of the Gun Court, conflict with Chapter VII of the Constitution and are void (post, pp, 219D-E, 221H - 222B, 223C).
Per Viscount Dilhorne and Lord Fraser of Tullybelton. The provisions of the Gun Court Act 1974 as to the Full Court Division of the Gun Court do not conflict with Chapter VII of the Constitution and were validly enacted (post, p. 231D). As it is agreed that the provisions of the Gun Court Act as to the Full Court Division are severable from the provisions relating to the other two divisions anything said as to the validity of the Full Court Division is obiter (post, p. 231G-H).
(2) That the presumption that the provision for trials in camera was reasonably required in the interests specified in section 13 (1) of the Gun Court Act could be rebutted by evidence of Parliament's bad faith or misinterpretation of the relevant provisions of the Constitution under which it purported to act, but the defendants had adduced no such evidence and matters of judicial knowledge in Jamaica negatived such a suggestion; accordingly the presumption had not been
rebutted, and the section was not in conflict with the Constitution (post, p. 224C-F).
Per curiam. The reference to the protection of private lives contained in sections 20 (4) (c) (ii) and 22 (2) (a) of the Constitution were directed to the right to privacy of individuals and not to their physical safety (post, p. 224F-G).
(3) That the principle of separation of powers was implicit in the Constitution and Parliament had no power to transfer from the judiciary to the Review Board, the majority of whose members were not qualified to exercise judicial powers, a discretion to determine the severity of punishment to be inflicted on an individual member of a class of offenders and, accordingly, the provisions of sections 8 and 22 of the Gun Court Act were contrary to the Constitution and void and the sentences passed on the defendants unlawful (post, pp. 225G - 226A, 227H - 228A, 231E-F).
Deaton v. Attorney-General and Revenue Commissioners [1963] I.R. 170 and The State v. O'Brien [1973] I.R. 50 applied.
(4) That the provisions of the Act which were inconsistent with the Constitution were severable from the valid provisions, since the valid provisions would survive without the invalid, and, on a fair review of the matter, it could be assumed that the legislature, knowing that certain provisions were invalid, would have enacted the valid provisions without enacting those which were ultra vires (post, pp. 229E-G, 230D-F, 231E-F); that, accordingly, the appeals against conviction would be dismissed, the fifth defendant's conviction would be restored, the appeals against sentence would be allowed and the cases remitted to the Court of Appeal for sentence.
Attorney-General for Alberta v. Attorney-General for Canada [1947] A.C. 503, 518, P.C. applied.
Decisions of the Court of Appeal of Jamaica varied.
Lord Diplock said,[37]
“A written constitution, like any other written instrument affecting legal rights or obligations, falls to be construed in the light of its subject matter and of the surrounding circumstances with reference to which it was made. Their Lordships have been quite properly referred to a number of previous authorities dealing with the exercise of judicial power under other written constitutions, established either by Act of the Imperial Parliament or by Order in Council made by Her Majesty in right of the Imperial Crown, whereby internal sovereignty or full independence has been granted to what were formerly colonial or protected territories of the Crown. These other constitutions differ in their express provisions from the Constitution of Jamaica, sometimes widely where, as in the case of Canada and Australia, they provide for a federal structure, but much less significantly in the case of the unitary constitutions of those states which have attained full independence in the course of the last two decades. In seeking to apply to the interpretation of the Constitution of Jamaica what has been said in particular cases about other constitutions, care must be taken to distinguish between judicial reasoning which depended on the express words used in the particular constitution under consideration and reasoning which depended on what, though not expressed, is none the less a necessary implication from the subject matter and structure of the constitution and the circumstances in which it had been made. Such caution is particularly necessary in cases dealing with a federal constitution in which the question immediately in issue may have depended in part upon the separation of the judicial power from the legislative or executive power of the federation or of one of its component states and in part upon the division of judicial power between the federation and a component state.
Nevertheless all these constitutions have two things in common which have an important bearing on their interpretation. They differ fundamentally in their nature from ordinary legislation passed by the parliament of a sovereign state. They embody what is in substance an agreement reached between representatives of the various shades of political opinion in the state as to the structure of the organs of government through which the plenitude of the sovereign power of the state is to be exercised in future. All of them were negotiated as well as drafted by persons nurtured in the tradition of that branch of the common law of England that is concerned with public law and familiar in particular with the basic concept of separation of legislative, executive and judicial power as it had been developed in the unwritten constitution of the United Kingdom. As to their subject matter, the peoples for whom new constitutions were being provided were already living under a system of public law in which the local institutions through which government was carried on, the legislature, the executive and the courts, reflected the same basic concept. The new constitutions, particularly in the case of unitary states, were evolutionary not revolutionary. They provided for continuity of government through successor institutions, legislative, executive and judicial, of which the members were to be selected in a different way, but each institution was to exercise powers which, although enlarged, remained of a similar character to those that had been exercised by the corresponding institution that it had replaced.
Because of this a great deal can be, and in drafting practice often is, left to necessary implication from the adoption in the new constitution of a governmental structure which makes provision for a legislature, an executive and judicature. It is taken for granted that the basic principle of separation of powers will apply to the exercise of their respective functions by these three organs of government. Thus the constitution does not normally contain any express prohibition upon the exercise of legislative powers by the executive or of judicial powers by either the executive or the legislature. As respects the judicature, particularly if it is intended that the previously existing courts shall continue to function, the constitution itself may even omit any express provision conferring judicial power upon the judicature. Nevertheless it is well established as a rule of construction applicable to constitutional instruments under which this governmental structure is adopted that the absence of express words to that effect does not prevent the legislative, the executive and the judicial powers of the new state being exercisable exclusively by the legislature, by the executive and by the judicature respectively. To seek to apply to constitutional instruments the canons of construction applicable to ordinary legislation in the fields of substantive criminal or civil law would, in their Lordships' view, be misleading - particularly those applicable to taxing statutes as to which it is a well established principle that express words are needed to impose a charge upon the subject. In the result there can be discerned in all those constitutions which have their origin in an Act of the Imperial Parliament at Westminster or in an Order in Council, a common pattern and style of draftsmanship which may conveniently be described as "the Westminster model.”
The most startling thing about this decision is that legislation was declared unconstitutional despite the fact that it did not conflict with any express provision of the Constitution. Instead it conflicted with an implied constitutional principle which must now, in light of the subsequent development of the law, be considered as a fundamental constitutional principle. Since Hinds[38] the concept of separation of powers has been successfully applied in several cases. In Browne v The Queen[39] the constitutionality of the provision in the Offences Against the Person Act in Antigua and Barbuda allowing the Governor General to hold a juvenile at his pleasure following a conviction for murder came into question.
[Headnote]
Saint Christopher and Nevis - Constitution - Human rights and fundamental freedoms - Deprivation of liberty otherwise than in execution of sentence or order of court - Juvenile convicted of murder - Sentence of detention during Governor-General's pleasure - Legality of sentence - Whether contrary to Constitution - Saint Christopher and Nevis Constitution Order 1983 (S.I. 1983 No. 881), Sch. 1, s. 5(1)(b)
The 2defendant was convicted of murder when he was 16 years old and the judge sentenced him to be "detained until the pleasure of the Governor-General be known." In so sentencing him the judge had intended to apply the proviso to section 3(1) of the Offences against the Person Act1 and the words used should have been detention "during the Governor-General's pleasure." The Court of Appeal of the Eastern Caribbean States dismissed his appeal against conviction and sentence. The defendant challenged the legality of the sentence on the ground, inter alia, that it contravened the Constitution of Saint Christopher and Nevis.2
On the defendant's appeal to the Judicial Committee: -
Held, allowing the appeal, (1) that detention at the Governor-General's pleasure was a discretionary sentence for which the duration, including its punitive element, was to be determined by the Governor-General and not by the court; that under the Constitution of Saint Christopher and Nevis the Governor-General was part of the executive and not the judiciary; that, therefore, the sentence prescribed by the proviso to section 3(1) of the Offences against the Person Act was a deprivation of liberty otherwise than in execution of an order or sentence of the court and was contrary to the Constitution; and that, accordingly, even after the correction of the judge's verbal error, the sentence was an unlawful one which the courts were not entitled to pass or uphold (post, pp. 1161B-C, 1162A).
Reg. v. Secretary of State for the Home Department, Ex parte Venables [1998] A.C. 407, H.L.(E.) and Hinds v. The Queen [1977] A.C. 195, P.C. applied.
(2) That it was the duty of the court to decide what modifications needed to be made to the proviso so as to give effect to the requirements of the Constitution and the defendant's constitutional rights; that the proviso could be made to comply with the Constitution by removing the unlawful part of the sentencing process and the objective of the proviso could be achieved by substituting a sentence of detention at the court's pleasure; and that the case should be remitted to the Court of Appeal for the exercise of its powers in accordance with the relevant statutes (post, pp. 1162B-D, 1163A-F).
Decision of the Court of Appeal of the Eastern Caribbean Supreme Court (Saint Christopher and Nevis) varied.
Lord Lord Hobhouse of Woodborough, said as follows[40]
“the Attorney-General has accepted that in England under section 53(1) of the Act of 1933 and in Saint Christopher and Nevis under section 3(1) of the Act of 1873, the sentence is not one which is determined by the court but one which is determined by the Secretary of State or the Governor-General, including its punitive element.
Under Chapters III and V of the Constitution of Saint Christopher and Nevis, the Governor-General is part of the executive, not the judiciary. This makes relevant the second case which the Attorney-General has accepted to be applicable. Hinds v. The Queen [1977] A.C. 198 was a decision of the Privy Council on appeal from the Court of Appeal of Jamaica. Jamaica, like Saint Christopher and Nevis, has a constitution which follows the "Westminster" model. These constitutions are drafted upon the principle of separation of powers. A statute had set up a "Gun Court" to try persons charged with firearms offences. Section 8 of the statute prescribed a mandatory sentence of detention at hard labour during the Governor-General's pleasure for certain offences, determinable only by the Governor-General on the advice of a five-man review board of which only the chairman was a member of the judiciary. Various defendants who had been convicted before the court and sentenced in accordance with section 8 appealed contending that the sentence was unconstitutional. The appeals succeeded. Lord Diplock giving the opinion of the Board said, at pp. 225-226:
"In the field of punishment for criminal offences, the application of the basic principle of separation of legislative, executive and judicial powers that is implicit in a constitution on the Westminster model makes it necessary to consider how the power to determine the length and the character of a sentence which imposes restrictions on the personal liberty of the offender is distributed under these three heads of power . . . In the exercise of its legislative power, Parliament may, if it thinks fit, prescribe a fixed punishment to be inflicted on all offenders found guilty of the defined offence - as, for example, capital punishment for the crime of murder. Or it may prescribe a range of punishments . . . What parliament cannot do, consistently with the separation of pow8ers, is to transfer from the judiciary to any executive body whose members are not appointed under Chapter VII of the Constitution, a discretion to determine the severity of the punishment to be inflicted upon an individual member of a class of offenders."
He adopted a statement of the Supreme Court of Ireland in Deaton v. Attorney-General [1963] I.R. 170, 183: "the selection of punishment is an integral part of the administration of justice and, as such, cannot be committed to the hands of the executive." Deaton's case was followed and applied in The State v. O'Brien [1973] I.R. 50. A similar decision was
arrived at by the European Court of Human Rights under the European Convention in Hussain v. United Kingdom (1996) 22 E.H.R.R. 1.
It follows that the sentence prescribed by section 3(1) of the Act of 1873 is contrary to the Constitution of Saint Christopher and Nevis and that the sentence passed on the appellant was, even after correction of the verbal error, an unlawful sentence which the courts were not entitled to pass or uphold. The sentence must be set aside.
The validity of the provision is not saved by any provision of the Constitution which preserves the validity of previous laws. The Constitution, unlike that of other Caribbean countries, does not include a general preservation of the validity of all pre-existing law. Paragraph 9 of Schedule 2 to the Order does preserve existing law in relation to inhuman treatment referring back to section 7. But the relevant provision for present purposes is section 5(1). Deprivation of liberty otherwise than in execution of the sentence or order of a court is contrary to the Constitution. Paragraph 2(1) of Schedule 2 provides that:
"The existing laws shall, as from 19 September 1983, be construed with such modifications, adaptations, qualifications and exceptions as may be necessary to bring them into conformity with the Constitution and the Supreme Court Order."
Therefore, it is the duty of the court to decide what modifications require to be made to the offending provision in the proviso and to give effect to it in its modified form, not to strike down the proviso altogether:”
Browne v The Queen[41], arguably holds several implications in respect of sentencing practices and structures which derogate from the citizens’ right to the exercise of a judicial discretion in respect of his sentencing, guaranteed to him under the separation of powers principle.
The most burning issue is that of the mandatory death penalty. It certainly is arguable that in so far as the imposition of the death penalty upon a finding of murder is mandatory and the presiding judge who is charged with imposing the penalty has no discretion, it must be a violation of the principle of separation of powers in that the legislative arm of the judiciary has invaded upon the judicial discretion reserved to it in sentencing under the principle. The usual response to this proposition would be that the death sentence is preserved by article 138(1). Article 138(1) provides as follows: “No person shall be deprived of his life intentionally save in execution of the sentence of a court in respect of an offence under the law of Guyana of which he has been convicted.”
The response is that 138 may preserve the death penalty. It does not preserve the mandatory death sentence. (There are compelling arguments establishing the unconstitutionality of the death sentence, but I have deliberately avoided including them in this paper since they are worthy of separate treatment.)
At first the principle of separation of powers was thought to apply in part only, meaning that in the context of the Commonwealth Caribbean Constitutions the law would only recognise and enforce a separation between the judiciary on the one hand and the executive and legislature on the other hand. The case of J Astaphan & Co (1970) Ltd v Comptroller of Customs of Dominica and Others[42] bears testimony to the fact that the concept in its entirety has a place in the constitutional law of the Commonwealth Caribbean. The Court of Appeal of the Eastern Caribbean States, held that an unfettered power to impose a tax vested in the Comptroller of Customs by legislation was a violation of the principle of separation of powers in that the imposition of tax was a legislative function and not an executive function[43].
[Headnote]
Constitutional law – Constitution – Separation of powers doctrine – Delegation of power to customs officer to impose ‘further sum’– Amount of ‘further sum’ at discretion of executive – Delegation of judicial power an abdication of legislative power – Customs (Control and Management) Act, Cap 69:01 [Dominica], section 27(4)
Fundamental rights and freedoms – Property – Deprivation of property without compensation – Penalty imposed under customs legislation – Penalty imposed without any breach of law – Customs (Control and Management) Act, Cap 69:01 [Dominica], section 27(4)– Constitution of the Commonwealth of Dominica 1978, section 6(1) and (6)(a)(ii)
Constitutional law – Constitution – Validity of legislation – Dominica – Customs (Control and Management) Act, Cap 69:01 [Dominica], section 27(4)
Section 27 of the Customs (Control and Management) Act provides that, where an importer signs a declaration that he is unable to make perfect entry of goods (for want of document or information), he will thereupon be allowed to take delivery of the goods on payment of a specified sum. By section 27(4), the specified sum comprises the appropriate amount of customs duty (estimated by a customs officer) together with ‘such further sum as the [customs] officer may require, that further sum being not less than one-half of the estimated duty’.
If the ‘further sum’ referred to in section 27(4) is an additional tax or duty, the delegation of the legislative powers to the executive without the prescription of a maximum sum, or the powers being otherwise circumscribed, or guidelines being issued as to their exercise, constitutes an abdication of the powers of the legislature which is inconsistent with the doctrine of the separation of powers under the Constitution of Dominica. If the ‘further sum’ is a penalty, the discretion conferred on the customs officer to determine its amount in a particular case confers a judicial power on the executive and is similarly inconsistent with the doctrine of the separation of powers; also, as it is not imposed for a breach of the law, as a penalty the ‘further sum’ amounts to a compulsory deprivation of property without adequate compensation, contrary to section 6(1) of the Constitution (cf section 6(6)(a)(ii)). Accordingly, section 27(4), so far as it empowers a customs officer to impose a ‘further sum’ arbitrarily and without limit, is void.
Sir Vincent Floissac CJ. said[44]
“The power to impose taxes and duties is inherently a legislative power constitutionally vested in the legislature. If the ‘further sum’ which section 27(4) of the Customs (Control and Management) Act has authorised the proper officer to demand is a tax or a duty, the legislature of Dominica has delegated or transferred its legislative power of taxation to the executive (ie the proper officer). The question thus arises as to whether such delegation or transfer of legislative power offends the basic principle of separation of powers.
I concede that the delegation or transfer of legislative power by the legislature to the executive is not per se inconsistent with the principle of separation of powers. There is no such inconsistency if the legislature retains effective control over the executive in the latter’s exercise of the delegated or transferred legislative power. Such effective control may be retained by circumscribing the power or by prescribing guidelines or a policy for the exercise of the power.
I also concede that the legislature reserves the right to repeal its own legislation and to revoke any legislative power which it has delegated or transferred to the executive. To that extent, the legislature retains ultimate control over the executive in relation to the exercise by the executive of delegated or transferred legislative power. But this ultimate control is not effective after the power has been exercised in an individual case or if and when the power has already been abused by the executive. If the basic principle of separation of legislative and executive powers is intended to be meaningful and effective, the basic principle should not be deemed to have been observed merely by reason of the existence of an ultimate control which operates ex post facto. There must be some parliamentary control at the time of the exercise of the power.
For these reasons, I am firmly of the opinion that if the legislature delegates or transfers its legislative power to the executive and does so without circumscribing the power or without prescribing guidelines or a policy for its exercise, the legislature should be deemed to have surrendered or abdicated the power. In that event, the delegation or transfer of legislative power is inconsistent with the basic principle of separation of powers.”
There is admittedly one disadvantage of having the separation of powers pegged to article 40 in the Guyana Constitution and that is that this section may be amended by a two-thirds majority vote of all of the members of the National Assembly to exclude the concept. On the other hand if it remains as first conceived by the Privy Council in Hinds v The Queen[45], then arguably it is and remains an immutable concept which no parliament in the context of the present Constitution may derogate from except by changing the entire structure of the Constitution.
And what on the rule of law? Professor Fiadjoe states, “In the context of the West Indian public law, it is submitted that the rule of law has come to mean the exercise of State power according to law and the subjugation of State power to the Constitution. The phrase "the rule of law" is thus a useful compendium to define the bundle of citizens rights or legitimate expectations to hold the state accountable for its actions.”[46]
Hugh A. Rawlins says of the Rule of Law, "The rule of law and good governance are, and will continue to be, critical functions of internal peace and stability in Caribbean countries. The Preamble to the 1966 Independence Constitution of Guyana afforded express recognition to the rule of law. This is not been reproduced in the 1980 Republican Constitution. Notwithstanding this, it is submitted that the importance of the doctrine as a constitutional fundamental in the jurisprudence of Guyana is undeniable. Endell Thomas asserts, for example, that the doctrine is a part of our Caribbean Heritage, so that even where there is no express mention of it in the Constitution, it may nonetheless be inferred from constitutional provisions which set limitations on legal action. These include the Supreme Law clauses, as well as the entrenching and fundamental rights provisions which are contained in Article is 18, 66 and 138 to 154, respectively, of the 1980 Constitution of Guyana. The doctrine may also be inferred from Article 40(1)(a) of the said Constitution, to the extent that it affords to the individual the protection of the law. It may in fact be inferred from the Constitution as a whole, to the extent that it entitles the individual to responsible government.[47]”
There has been a recent trend by the executive of Guyana towards the creation of autonomous bodies to take over the administration of certain functions that previously fell to be carried out by the public service. Examples thereof are the Guyana Revenue Authority, the Deeds Registry, the Public Hospital Corporation, etc. At one time the Minister of Home Affairs even spoke of privatising the Prisons. A number of issues arise from these initiatives not least of which is the contravention of article 201 of the Schedule to the Constitution of the Co-operative Republic of Guyana. Article 201(1) in its entirety, provides as follows "Subject to the provisions of this Constitution, the power to make appointments to public offices and to remove and to exercise disciplinary control over persons holding or acting in such offices shall vest in the Public Service Commission."
In the Barbadian case of Attorney General et anor v. Smith.[48] under section 65(1) of the Education Act 1981 (which was passed by Parliament in the ordinary way), teachers in that school (and other specified schools) were deemed to have been appointed in accordance with the provisions of the Constitution relating to the appointment of public officers. A board of management was appointed for the school to replace the governing body and the teaching staff were notified that in accordance with section 65 they had become public officers.
Williams J said[49],
Chapter VIII of the Constitution makes provision in respect of the public service. Section 90 establishes a Public Service Commission and section 90 (2) enacts that ‘no person shall be qualified to be appointed as a member of the commission if he is a member of the House of Assembly or of the Senate’. Under section 94 power to make appointments to public offices is vested in the Governor-General acting in accordance with the advice of the Public Service Commission. Chapter VIII, including sections 90 and 94, is referred to in section 49 (2)( f ). Section 49 provides as follows:
‘(1) Subject to the provisions of this section, Parliament may, by an Act of Parliament passed by both Houses, alter this Constitution.
‘(2) Subject to the provisions of subsection (3), a Bill for an Act of Parliament under this section that alters any of the following provisions, that is to say …(f ) Chapter VIII … shall not be passed in either House unless at the final voting thereon in the House it is supported by the votes of not less than two-thirds of all the members of the House …
‘(5) In this section –
‘(a) references to this Constitution or to any particular provision thereof include references to any other law in so far as that law alters the Constitution or, as the case may be, that provision; and
‘(b) references to altering this Constitution or any particular provision thereof include references –(i) to repealing it, with or without re-enactment thereof or the making of different provision in lieu thereof; 45(ii) to modifying it (whether by omitting, amending or overriding any of its provisions or inserting additional provisions in it or otherwise); and (iii) to suspending its operation for any period or terminating any such suspension.
‘(6) No Act of Parliament shall be construed as altering this Constitution unless it is stated in the Act that it is an Act for that purpose …‘
There is no statement in the Act of 1981 that it is an Act for the purpose of altering the Constitution so that, following section 49(6) of the Constitution, I cannot construe it as an Act for that purpose. Moreover, following section 49 (5), I must construe references to altering as including references to modifying it by amending or overriding any of its provisions or otherwise. Against this background it is my opinion that section 65 of the Act of 1981 will fall to the ground as being contrary to the provisions of sections 90 and 94 of the Constitution. Members of Parliament being constitutionally incapable of being members of the Public Service Commission, and Parliament having no constitutional power to make appointments to the public service, section 65 (which deemed teachers to have been appointed to the public service) could in my opinion only have been a valid provision if there had been compliance with the procedure for altering the provisions of Chapter VIII of the Constitution. For, if Parliament cannot make appointments to the public service, it cannot deem persons to be so appointed.
Section 65 is challenged on another gr