Setting for the Adjudication
In keeping with post-war constitution-making throughout the world, Commonwealth Caribbean Constitutions all contain a Bill of Rights as a chapter headed �Fundamental Rights and Freedoms.’[766] The proclamation of these Bills was a declaration that certain values and concepts were the basis of the constitutional order and also of the relation between the individual and the state.
The provisions of the Bills of Rights were both statements of enforceable rights in law, and statements of constitutional norms. The Bills in all cases save that of Trinidad and Tobago, are derived from the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR). It fell therefore to the Privy Council, from the promulgation in 1962 of the constitutions of Jamaica and Trinidad and Tobago, to interpret the Bills and determine their law and their application - to be the final arbiter of the meaning and effect of Bills of Rights newly set into a long established common law system. This task, crucially, was set by the Privy Council well before the advent in the United Kingdom of a supposed �common law of human rights.’[767] This task arose too, before it was denied in the United Kingdom that the common law conceptions of fundamental liberties operated to produce merely residuary entitlements and before it was asserted that the common law did not diverge either from the European Convention or from UnitedStates Bill of Rights understandings, at least in relation to free speech.[768]
In addition, at the time of promulgation of the West Indian Bills of Rights, international and regional human rights regimes were in their infancy (as for the European system), or non-existent (as for the current �world system’ and the Inter-American regime). The United Kingdom had permitted individual petitions under the ECHR in 1966, about one year before the Privy Council decided its first West Indian Bill of Rights case - DPP v Nasralla.[769]
What then was the response of that Court, one whose power to determine whether official action and legislation was compatible or not with a Bill of Rights provision was undisputed? Up until the very end of the period stated, a reaching for existing law and in particular the common law (as the Privy Council determined it to be at the time of promulgation of the constitutions), had been its dominant response.
One moreover, with the purpose to give a restricted content or effect to the right litigated. The Court had consistently declined to admit the contribution of the Bill of Rights to the law and constitution of Commonwealth Caribbean states. While there had been the occasional ingenuous use of the common law to support a litigant’s view of his entitlement under the Constitution, the Court had not accepted what should logically have been the presumed premise of the �enactment’ of a Bill of Rights, namely that the freedoms of the common law were not automatically to be seen as coextensive with the newly stated fundamental rights and freedoms.The frequent pointing to the established common law as the source of certain liberties also made newer perspectives on the rights and freedoms and the emergence of a rights jurisprudence more difficult.[770] An observation made in 1990, in the context of the United Kingdom, would have applied equally to the Judicial Committee at the period of the 1960s when it began adjudication of the Bills: �The common law, in its concern with remedies adopts a very technical approach to fundamental questions and human rights are not yet an important part of the English legal culture or constitution.’[771]
With or without the assistance of devices set out in some of the constitutions, as for example a special savings clause,[772] the Privy Council has sought to justify or perhaps even legitimate its interpretation of the Bills and its decisions thereunder by reference to existing law and in particular the Court’s understanding in a specific case of an area of the common law — even in the face of the actual statement of the right in the Constitution — so as to deny claims presented to the court. Accordingly, in the earliest Bill of Rights litigation before it, DPP v Nasralla, the Privy Council observed:
All the judges below have treated [section 20(8) of the Constitution] as declaring or intended to declare the common law on the subject.
Their Lordships agree...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.[773]Similarly, in King v Queen,[774] the Privy Council asserted:
This constitutional right may or may not be enshrined in a written constitution, but it seems to their Lordships that it matters not whether it depends on such enshrinement or simply upon the common law as it would do in this country. In either event the discretion of the court must be exercised and has not been taken away by the declaration of the right in written form.
Nearly 30 years later, in considering the relation of a speedy trial to a fair trial, in a Bill of Rights which did not confer expressly a right to be tried within a reasonable time, it was said:
[T]he opening words of section 4 indicate that the rights in question are rights which existed at the coming into force of the Constitution. The present Constitution is that of 1976, but the relevant wording in the original independence Constitution of 1962 was identical. It follows that the rights in question are rights which were enjoyed at common law before the Constitution of 1962 came into force.[775]
A number of cases have asserted either that sections of the Bill of Rights do no more than �codify in writing the requirements of the common law,’[776] or that a section of the Bill of Rights makes no difference (as was asserted in France v Simmonds),[777] in relation to defamation and free expression. Given that the dominant approach had been to assert existing law and common law rules so as to deny claims under the Bills of Rights, the most celebrated cases have been those which appear to �set aside’ the common law rule, or better, which do not allow common law rules to obstruct the development of a Bill of Rights jurisprudence. These cases form a �counter-current’ to the Nasralla line.
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