West Indian Bills and Existing Law

In the context of litigation and judicial determinations, the single most crucial issue raised by the enactment of a Bill of Rights is the impact of existing law, and more particularly the common law, on the assertion of the conferred rights.

The fact that the common law itself is the source of many of the basic liberties, some now dubbed �rights,’ has obscured, or perhaps has made untenable for some, the notion of any conflict or incongruity between that law and enacted fundamental right and freedoms. But in addition to any substantive discontinuity between elements of an enacted rights regime and the body of rules constituting the common law, incongruities may relate, for example, to the fact that a Bill could include rights arguably unknown to the common law - as would be the case where, however formulated, a right to privacy is conferred. Lord Diplock had occasion to point this out in Maharaj No 2 in relation to rights stated in the Constitution of Trinidad and Tobago, namely, that of a parent or guardian to a free choice in the matter of education for his child or ward, and the right to join political parties and to express political views.

A significant divergence between common law understandings of fundamental rights occurs where, as for all of the West Indian Bills, the enacting document creates a cause of action for breach or threatened breach of one of the conferred rights. This feature is hardly known to the common law. The breach of (what would now be) a right could form the basis of an appeal as for example, where procedural rights in a criminal trial are infringed making the trial unfair; or could result in the discharge of an injunction prohibiting publication of some �speech’ where freedom of expression was invoked. In neither case would an independent action arise on an allegation of deprivation of right.

Looking at the relation between the common law and enacted fundamental rights, two Privy Council decisions in the sphere of personal liberty, being cases in which the court declined to �apply’ the common law to defeat a claim under a Bill of Rights, are illustrative. The entitlement to personal liberty, well established in the common law, is expressed as a �right’ not to be deprived of liberty without the observance of certain procedures. In the Trinidad and Tobago chapter on fundamental rights and freedoms, the individual is accorded the right not to be deprived of liberty �except by due process of law.’ So in the Maharaj No 2 scenario, in which a barrister was sent to prison for seven days for contempt, the summary procedure in committal for contempt was well known and accepted in the common law with the �judicial officer,’ in familiar parlance, being �judge and jury.’ On the facts however, the Privy Council found a denial of natural justice in the lack of opportunity to be heard before committal.

The character of contempt proceedings and its existence in common law notwithstanding, it was not existing law that the rules of natural justice could be breached. Moreover, the savings clause did not operate to render action not lawful at the promulgation of the constitution, lawful thereafter. The task of the court to prevent the common law from blocking the action was more onerous in relation to judicial immunity, and the resolution of the problem involved a clarification of the character of the �new’ action for breach of a fundamental right. The action, it was affirmed, was one in public law and against the state, not the judicial officer. While the mere invocation of �public law’ did not per se explain the action, it at least made it clear that the judge was not himself being sued in a civil action.^[779] It may be that the majority view left unrebutted an argument that judicial immunity in principle forbade any form of recourse to a court to challenge the �doings’ of a judge and arguably, more so, a �public law action.’^[780]

Lord Diplock also had to deal with anxieties about actions for judicial error, but pointed out that the action could only arise for �errors’ that were �procedural,’ since �no human right or fundamental freedom recognised by Chapter I of the Constitution is contravened by a judgment or order that is wrong and liable to be set aside on appeal for an error of fact or substantive law, even where the error has resulted in a person’s serving a sentence of imprisonment.

The jurisdiction of Trinidad and Tobago also provided the next major case in which the Privy Council ensured that arguments based on the common law did not defeat the assertion of a fundamental right. In Thornhill v AG,^[782] the Privy Council was invited to say that the alleged non existence in common law of a right to counsel on arrest, negated a claim to such access in the face of the clear statement of the right in the Constitution. In addition, the common law understanding that police officers acted on their own account, and were not agents of the state, was raised. The first argument derived from the fact that the Constitution concerned, as for all the West Indian Constitutions, had declared that the rights therein stated had existed previously and were to continue to exist. There was no written law conferring an entitlement to access to counsel on detention and, as apparently accepted by the Court of Appeal, the common law knew of no such entitlement. It was, therefore, reasoned that the drafters of the Constitution had erred in including such a right in the Constitution.

The Privy Council taking a pragmatic view and not, as the Court of Appeal had done, dredging the ancient common law to see whether or not it had granted access to counsel on arrest, affirmed the statement of right in the Constitution, and that it had in fact been enjoyed, whether or not de jure or as a result of a settled executive practice to allow such access. There was, therefore, no need to decide the common law position at all. Moreover, the special savings clause could not render unlawful a practice which was not unlawful and which had subsequently been set out in the constitution as a right. The de facto right had been converted into a de jure right. The established fact that in Trinidad and Tobago persons arrested and detained by the police had been accorded access to counsel, and that the judiciary of the state had adopted in identical terms principles set out in Appendix A to the English Judges Rules [1964], determined the issue in the appellant’s favour.^[783] On the common law arguments as to the status of police officers, the Privy Council perceived that to exclude the activities of the police would be to insulate from the commands of the Bills a large area of official conduct impinging on the rights declared.

A comparison of Maharaj and Thornhill shows up the subtleties of the interaction between the common law and enacted fundamental rights. In the first case, Lord Diplock, by focusing on the fact that at common law there could be no deprivation of liberty on an infringement of natural justice (translating into the constitutional right not to be deprived of liberty without due process), rather than on the non-existence in common law of a remedy for �judicial error,’ could declare:

So to understand the legal nature of the various rights and freedoms that are described in the succeeding Section 1 paragraphs (a) to (k) in broad terms and in language more familiar to politics than to legal draftsmanship, it is necessary to examine the extent to which, in his exercise and enjoyment of rights and freedoms capable of falling within the broad descriptions in the section, the individual was entitled to protection or non-interference under the law as it existed immediately before the Constitution came into effect. That is the extent of the protection or freedom from interference by the law that section 2 provides shall not be abrogated, abridged or infringed by any future law....^[785]

But in Thornhill, Lord Diplock, reasoning similarly that existing laws, as administered in practice, could be a relevant aid to the ascertainment of the kind of executive or judicial act intended to be prohibited by the �wide and vague words’ used in section 1, concluded:

This external aid to construction is neither necessary nor permissible where the treatment complained of is of any of the kinds specifically described in...section 2...So there is no need to consider whether before the commencement of the Constitution a person arrested and detained by the police would have had at common law a legal remedy if he had been prevented from exercising what is specifically described in section 2....^[786]

The scope of the right could, therefore, be ascertained independently of the common law once it was set out unambiguously in the Constitution.

The reference to �political language’ in the paragraph cited from Maharaj gives a clue to one possible justification for judicial recourse to the common law. Such recourse can operate as a form of judicial disclaimer, as the interpretation of a right is given by the common law and can thus be seen to be free of subjective bias. For immediate purposes, however, the statements from the two cases are in a certain tension; albeit taken in isolation from each other, both are perfectly valid. In Maharaj, pre-existing and common law could be used to give content to the broadly stated rights in section one of the Constitution of Trinidad and Tobago which then established the extent of the protection given under section 2. That being the case, it is not clear that resort to the pre­existing law and common law becomes impermissible in a Thornhill type scenario though it might well be unnecessary. Again, as has been seen, pre-existing practice was a significant factor in the decision in Thornhill.

Many of the tensions or incongruities in the relation between rights and the rules of the common law arise from the obvious fact that the common law can determine both the existence and scope of a right as well as limit it or even negate it. The existence or not at common law of a remedy, in circumstances seen to constitute a breach of an enacted right, has grounded arguments (as seen above) for or against a right in the face of its inclusion in a constitutional document. Maharaj and Thornhill establish that the absence of a common law remedy cannot logically deny an enacted right, though the existence of such a remedy may well reinforce a right stated in a Bill.

The case of Bell v DPP ^[787] is one of those placed in the Maharaj-Thornhill line, as a case in which the Court did not endorse the use of the common law against the assertion of a constitutional right. In this case the Privy Council, happily, recognized a broadly stated entitlement to a �fair trial within a reasonable time’ as conferred by the Constitution, while using existing �practice and procedure’ to determine whether the applicant had been given a trial within a reasonable time. The respondent, premising himself on Nasralla,, argued not only that there was no right at common law to a speedy trial, but in effect that delay was part of the legal culture and the �practice’ of the Jamaican court system. The Privy Council saw very precisely that this argument was an attempt �to whittle away the right of the applicant under the Constitution by reference to the common law in force before the Constitution.’ The Court reasoned that if the speedy trial right did not exist at common law, the setting out of a right �to a fair hearing within a reasonable time by an independent and impartial court established by law’ in section 20(1) of the Constitution of Jamaica was sufficient to confer it.^{[788] [789]}

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