Common Law Dominance over the Bills of Rights
The three Privy Council decisions looked at so far are taken to be examples of cases in which that Court has not opposed the common law to rights enacted as law. But in the earliest litigation of a Bill of Rights clause from the Commonwealth Caribbean, the case of DPP v Nasralla,[790] the Privy Council gave its first statement on the relation between the Bills of Rights in the constitutions and the common law.
This case has largely set the standard in this area, so that cases following it can be seen to form one current thought, and those in the Maharaj-Thornhill line another on the issue of �the common law and the Bills of Rights.’ Section 20(8) of the Constitution of Jamaica states:No person who shows that he has been tried by any competent court for a criminal offence and either convicted or acquitted shall again be tried for that offence, or for any other criminal offence of which he could have been convicted at the trial for that offence save upon the order of a superior court made in the course of appeal proceedings relating to the conviction or acquittal.
The applicant had been acquitted of murder, the jury being unable to agree a verdict of manslaughter. He was subsequently rearraigned for manslaughter. The Jamaica Court of Appeal was of the view that the fact that the jury could not agree on a verdict as regards manslaughter �does not mean that the applicant was not in peril of conviction for manslaughter.’26 In allowing the appeal of the Director of Public Prosecutions, the Privy Council in a judgment delivered by Lord Devlin responded to the statement by observing that while the word �peril’ had been used in its �natural and ordinary’ sense by the Court of Appeal it was necessary �if the rule against double jeopardy and the principles of autrefois were to produce the same result, the word “peril” must be given a more restricted meaning.’[791] The restriction was clearly placed on the words set out in the constitution.
It might have been thought that the principle involved was one of obviating double jeopardy, and that the autrefois rule or group of rules gave expression to the principles. In any event, the Privy Council was prepared to merge rule with principle, in fact to subject principle to rule, even on its view of what the principle and rule, respectively, were.[792] Autrefois required either an actual conviction or acquittal, therefore the Privy Council could conclude that at common law double jeopardy also required conviction or acquittal. The Director of Public Prosecutions, therefore, won the day in the face of section 20(8) which clearly sought to create a situation in which the accused was not exposed to the risk or peril of being tried again, once he had been so tried and �could have been convicted’ of any other offence at the trial.
The Privy Council effectively reconstructed the common law giving expression to the concept of double jeopardy stated as a fundamental right.[793] Of more immediate interest for the discussion here, was the general perspective on the Bill of Rights which led the Privy Council to believe that the common law (however eventually detailed) had to prevail over the actual statement of right in the Constitution. The Bill of Rights, Chapter III of the Constitution of Jamaica, begins its first section, section 13 with a declaration: �whereas every person in Jamaica is entitled to the fundamental rights and freedoms of the individual... to each and all of the following [rights]....’ The section continues with a statement of three groups of rights[794] and then further declares that the subsequent provisions of the chapter are to have effect �for the purpose of protecting the aforesaid rights.’ The detailing of rights begins with section 14 and starts in the now established fashion with the right to life or more precisely, the right not to be deprived of life. The redress clause in section 25 gives a right of redress in relation to the provisions of section 14—24.
Clearly, the recital with which section 13 begins is largely rhetorical in character and does not form part of the statement either of the �group’ of rights in section 13 or those specified in sections 14—24. Yet, it was from this recital that the Privy Council found not merely that the right already existed at common law in Jamaica, but that they were �already secured’ to individuals in the state under that law, which therefore defined the scope of the rights. The Court could then say:
Whereas the general rule as is to be expected in a Constitution and as is here embodied in section 2, is that the provisions of the Constitution should prevail over other law, an exception is made in Chapter III. This chapter, as their Lordships have already noted proceeds upon the presumption that the fundamental rights which it covers are already secured to the people of Jamaica by existing law. The laws in force are not to be subjected to scrutiny in order to see whether or not they conform to the precise terms of the protective provisions.[795]
This, together with the actual method of ascertaining the common law in Nasralla, established that the meaning and scope of the rights are exactly coextensive with the common law rules in force on the promulgation of the Constitutions, and that a Bill of Rights claim will fail where it could not have been made at common law (and existing law) prior to the promulgation of the Bills.[796]
The use of the word �exception’ in the quoted statement invites comment. It is particularly unfortunate that the Privy Council should have suggested and indeed pronounced a chapter of a constitution, especially the Bill of Rights not to be part of the Supreme Law of the State, more so when this was unnecessary. The statement, moreover, creates a situation of great paradox, for apart from asserting the �supremacy’ of the common law, it suggests that there is a conflict or at least some opposition between that law and the statement of right.
But as already seen, the informing principle of Nasralla, that the existing common law already secured the rights to Jamaica, implies that the common law was congruent with the statement of the rights in the Constitution. This conundrum is as unnecessary as it is foolish. The common law on a given subject and certainly the application of common law rules is ultimately that which the judiciary says it is. The interpretation of the rights as they are set out in the constitutions is itself a matter for judges. This being the case and there being nothing in the special savings clauses to compel a court not to interpret the common law consistently with the unambiguous provisions of a Constitution, there should have been for the most part little conflict between the rights, the Bills and the common law.The point just stated can be seen in the celebrated dissent of Lords Scarman and Brightman in Riley v AG.[797] They said:
The contribution which the Constitution makes to the jurisprudence of Jamaica is that it offers to every person in Jamaica the protection of a written constitution in respect of the rights and freedoms recognised and acknowledged by the law; and �law’ means both the pre-existing law so far as it remains in force...and the new law arising from the Constitution itself and from future enactment.[798]
The passage can be seen as a negation of a necessary antagonism between existing law as the common law and the constitution.[799] It is now also recognized in the context of the United Kingdom that common law adjudication can itself develop rights or recognize and create new ones, with or without the help of the ECHR as detailed below.
A final point of interest on Nasralla derives from an observation of Lord Devlin, in which he asserted that the object of the Bill of Rights provision was to ensure that no future enactment should in any matter which the Bill covered �derogate from the rights which at the coming into force of the Constitution, the individual enjoyed.’ This reflects not merely the view that the conferred freedoms were sufficiently protected by the law extant at the constitution, but constitutes a �political perception’ that Bills of Rights were necessary to preserve the newly independent inhabitants of the various Commonwealth Caribbean states from local regimes that could turn oppressive.[800] Nasralla and its view of existing law including the common law, taken with the limitations set out with the statement of rights in the Constitutions has been a dominant feature in the understanding and interpretation of the constitutionally enacted and entrenched Bills of Rights, until the mid-'90s.
The brief conclusion of this part of the discussion is that the two attitudes to the relation between the common law and enacted rights described in the foregoing pages illustrate that the common law is per se not opposed to enacted rights, even where the latter include �entitlements’ and forms of recourse unknown to that law, and even given that the terms of �enacted rights’ may not coincide with specific common-law rules or any particular understanding thereof. It must be the case that the impact of the common law depends on judicial choice and the judicial determination to countenance, or not, Bill of Rights claims. The reason for a particular choice or set of choices in the specific context of Privy Council adjudication is considered in examining the devices used by the Privy Council in Bill of Rights litigation.
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