Using Common Law Concepts in Support of Rights
In defining the scope of the conferred rights there have been a few indications of the way in which the common law can be used to buttress those rights and in particular rights of fair procedure.
In two cases, the Privy Council was concerned with the question of the requirements of a fair hearing in multi-stage procedures, one set up in legislation and one in the Constitution itself. In Rees v Crane,[814] concerning the three stage procedures for the removal of judges, the respondent judge claimed that the denial of a hearing at the first or preliminary stage breached the right stated at section 4(b) of the Trinidad and Tobago Constitution to �equality before the law and the protection of the law.’ The whole of the judgment on this point, as indeed on others, was premised on the common law, and in particular the concept of natural justice, to find that the judge was indeed entitled to be heard at the preliminary stage.[815]In Huntley v AG[816] the Court having found that the impugned procedure provided for in the challenged legislation did not implicate the fair trial right, nevertheless looked to the common law to see whether the appellant could claim to be heard at the first stage of a procedure relating to classification of murders as capital or non-capital for persons convicted before these categories had been introduced. The Court, citing Wiseman v Borneman,[817] declared that the common law could always be used to augment a statute. A fair extrapolation from this where legislation is being measured against the Constitution is that the common law can illuminate understandings both of legislation and the law of the Constitution. The common law is implicated in Bill of Rights litigation where a litigant takes one of its doctrines or creations to establish that his claim is to be brought within the protection of or meaning of a stated fundamental right.
The doctrine of legitimate expectation has been pleaded before the Privy Council by persons under sentence of death from The Bahamas and Trinidad and Tobago, to the effect that the appellants had a legitimate expectation not to be executed until their petitions before international and regional human rights entities had been determined. In Fisher v Minister for Public Safety and Immigration No 2,[818] the expectation just described was raised in the litigation of the right to life clause. The Court giving voice (as it appears to the writer) to the more restricted view of legitimate expectation, as to be found in the English decision of Ex p Hargreaves,[819] declared:
[A] decision-maker can act inconsistently with a legitimate expectation which he has created, provided he gives adequate notice of his intention to do so, and provided he gives those who are affected an opportunity to state their case. Procedural fairness requires of him no more than that. Even if therefore the appellant had a legitimate expectation that he would not be executed while his petition was pending his expectation could not survive the government’s letter of 2 and 30 January 1998 in which it informed the appellant’s solicitors in unequivocal terms that it would wait no longer than 15 February 1998.[820]
Hargreaves has been seen to reflect the reluctance of English Courts to extend notions of �proportionality and general fairness’ outside the area of fundamental rights.[821] So that if indeed Fisher No 2 does reflect that case, the legitimate expectation argument could not help the assertion of the fundamental right. In Thomas v Baptiste,[822] the appellants under sentence of death (as was Mr Fisher), were granted a stay pending hearing of their petitions before the Inter-American Commission on an argument based on the fact that the Trinidad and Tobago right to life clause declares that there is to be no deprivation of life �without due process.’ The Privy Council found a common law right in individuals not to have the result of proceedings pre-empted by executive action.
�Proceedings’ were made to relate to �due process’ in the statement of the right.[823] While however, the common law enhanced the understanding or working out of the right on the specific facts, recourse to the common law did involve a denial that the constitutional right invoked could extend to �rights’ or claims arising subsequent to the promulgation of the Bills. The Privy Council did not extend the understanding of right to life clauses to include the making of petitions to international bodies by persons whose lives were subject to forfeiture by the state in Thomas, but was to do so in the decision in Lewis.[824]Unhappily for any perception that a common law rule or principle can as such be deployed in the litigation of the Bill of Rights, Fisher No 2 declared that �public law points not arising out of or in connection with the Constitution should not normally be raised in a motion claiming constitutional relief.’ It is difficult to justify this recommended exclusion of public law arguments on a constitutional action. This public law, surely the common law, is part of the law in light of which the Privy Council has interpreted the constitutions in the years since their promulgation. And, since we have it on the authority of Lord Diplock that the action for constitutional redress is one in public law, a supposed dichotomy between �public law’ and �constitutional law’ must in principle be unsound.