When I began my practice of law in the year
1971, the Eastern Caribbean Supreme Court was a mere four years old: a toddler.
Today, at age 40 years, it is fast approaching middle age. What are some of the changes that have taken
place during that time? My talk tonight on
this question will revolve around a very personal view of this history. It will reflect my own interests and
concerns. I do not pretend that it will
be a scholarly study of the really important developments that have taken place
and of the changes that have occurred.
First, I must remind us of
some of the background. With the
break-up of the West Indies Federation in 1962, the ‘Little 8’, as the Leeward
and Windward Islands[1] were
known, reverted for a few years to colonial status. By the year 1967, Britain had agreed with
them on an intermediate status: not
colonies, but not yet fully independent.
This was known as ‘Associated Status’.
Each island became an Associated State.[2] Her Majesty was pleased, following the Indian
precedent, to confer upon us written Constitutions. Enshrined in these constitutions was our Bill
of Rights, or a recitation of our Fundamental Rights. Associated Status was not to last long. Independence soon followed for 6 of the
larger island colonies. Grenada was the
first to go into independence in 1974.
Closely following was Dominica in 1978, St Lucia and St Vincent and the
Grenadines in 1979, Antigua-Barbuda in 1981, and St Kitts-Nevis in 1983. Today, even the 3 remaining British Overseas
Territories of Montserrat, Anguilla and the Virgin Islands[3]
enjoy written Constitutions. Members of
the public and the media, not to forget to mention lawyers and judges, are now
grown up in an understanding of what it means to be governed by a written Constitution. It has not been a steady passage over those
40 years.
The Eastern Caribbean
Supreme Court, as we now know it, began life in the year 1967 as the West
Indies Associated States Supreme Court.[4] Its predecessors were the Court of Appeal of
the Windward Islands and Leeward Islands[5]
and the Supreme Court of the Windward Islands and Leeward Islands.[6] The Chief Justice of this earlier Court of
Appeal was assisted by two puisne judges from the High Court. Magisterial appeals were heard by two judges,
often both from the High Court.[7] Only appeals from High Court decisions went
to the full bench of three judges.
The first Chief Justice of
the West Indies Associated States Supreme Court in 1967 was Allen M Lewis of St Lucia.[8] He was now assisted by two appointed Justices
of Appeal. The first two were Justices Keith Gordon of St Lucia[9]
and Percy Lewis of St Vincent.[10] The first judges of the High Court were Elwyn St Bernard of Grenada, Allan Louisy of St Lucia, Eric Bishop of Barbados, Eardley Glasgow of St Vincent, and Neville Peterkin of St Lucia.[11] I had the privilege of appearing before all
of them at one time or another. These
judges are famous among lawyers over a certain age. We remember them with affection.
We can get a feel for who
the leading lawyers of the day were by looking at their names in the West
Indian Reports. These are our
publications of judgments of the Court of Appeal, and occasionally of our High
Courts. The names of the lawyers who
appear in each case are listed. Among
the prominent Antigua practitioners who have now passed away, we first find
mention in 1959 of the late Claude Earle
Francis,[12] Egbert Ewart Harney,[13]
Wilfred E Jacobs,[14]
and Cosmos OR Phillips;[15]
J Rowan Henry first appears[16]
in 1964; and Cecil E Hewlett in
1967.[17] Among the old-timers of the Antigua bar who
are still with us, Louis Lockhart
first appears[18] in
1959, Sydney Christian in 1968,[19]
and Bernice Lake in 1970.[20] Ken
Allen appears[21] for the
first time in 1964, and John Kelsick
in 1969.[22] The last two both practice mainly in Montserrat.
When you look through the
West Indian Reports you are struck by the fact that the Judges of both the High
Court and of the Court of Appeal were from the beginning all West Indians. In earlier years there used to be British
colonial judges. But, for many years
now, our judges have been West Indians.
There is a story best told
by Joseph Archibald about the last
of the old colonial British judges,[23]
who served in St Kitts. The judge had a
great fondness for his brandy. He called
it his medicine. He was accustomed to
have his Registrar take a small flask into court with him. At intervals throughout the day, he would ask
for a little of his ‘medicine’. A
particular murder trial went on into the night before the jury reached a
verdict. Frank Henville of St Kitts was prosecuting. The judge had frequent sips of his ‘medicine’. By the time the jury came back, he needed
assistance from two police officers to get up to his bench. The jury returned a verdict of Guilty of
Murder. The judge turned to the
prosecutor and solemnly put on his black cap.
Then, he said,
Frank
Henville, the jury has found you guilty of the most heinous crime of
murder. It is now my sad duty to
pronounce the only sentence which this court can impose on you.
By this time, as you can imagine, Frank Henville was literally shaking in
his boots. I can tell this joke on him
because he was my uncle. The Registrar
had to quickly signal the two officers to help the judge from his seat and
carry him back to his Chambers. He
returned the following morning to impose the sentence on the right person. He was the last of the old colonial English judges
appointed to our courts.
The first two
Constitutional cases to be reported from the Associated States are both found
in Volume 10 of the West Indian Reports.
They are the applications of Pearnell
Charles[24] and Dr William Herbert[25]
for bail. They both arose out of the
State of Emergency imposed on 30 May during the Anguilla Revolution of
1967. The Charles case was an
application for a writ of habeas corpus. He had been arrested under a section of the
Emergency Powers Regulations 1967 which permitted the Governor[26]
to detain him. He applied for the issue
of a writ of habeas corpus. The High Court refused the application,
holding that the 1967 Regulations were a law enacted by the legislature
authorising the taking of such measures.
It went to the Court of Appeal.
The appeal raised the question of the validity of the detention order
having regard to the fundamental right to personal liberty guaranteed by
section 3[27] of the
Constitution. Allen Lewis CJ gave the principal judgment of the Court of
Appeal. He held that the Regulations
offended against section 3 of the Constitution and, accordingly, the detention
order in respect of the appellant was invalid and his detention unlawful. The appeal was allowed,[28]
and it was ordered that a writ of habeas
corpus was to issue, that the applicant be forthwith discharged, and the
respondents to pay his costs.[29] In this case, while the High Court was willing
to uphold a restrictive and anti-democratic law, the Court of Appeal was more
generous in its interpretation of the Constitution.
An early example of the
liberating effect of the court is to be found in both the High Court and the
Court of Appeal decisions in the case of Marguerite
Brisbane and her television set.[30] In September 1967, St Kitts was still
smarting under the emergency created by the Anguilla Revolution of May in that
year. The St Kitts government was
concerned that TV sets might be used by its citizens to acquire information
that was not in accordance with the permitted version of events that were being
broadcast by the State controlled radio.
TV sets were required to be imported by licence, but none were being
issued.[31] Baggage and private effects were exempted.[32] Mrs Brisbane, on a trip to Montserrat,
acquired a TV set. She brought it into
St Kitts as her personal baggage. It was
confiscated as having been imported without a licence. She appealed to the High Court for a ruling
whether it was exempt as being her private baggage. The Attorney-General argued that ‘baggage’
meant such articles of necessity or personal convenience as are usually carried
by passengers for their personal use. He
submitted that a TV set could not be baggage and was, in fact, an item of
furniture. Justice Glasgow in a reserved
judgment ruled that it was “baggage and
private effects” and, accordingly, exempt.
The sole ground of appeal was “that
the learned judge was wrong in law in finding that the TV set was part of Mrs
Brisbane’s baggage.” The Court of
Appeal upheld Justice Glasgow’s decision.
The Chief Justice agreed that the TV set fell within the meaning of “baggage and personal effects”, and could
accordingly be imported without a licence.
Other cases arising out of
the Anguilla Revolution, and the resulting state of emergency in St Kitts,
include the freedom of information and freedom of movement cases of Michael Powell and Warren Thomas.[33] By this time, the High Court was beginning to
flex its constitutional muscle in protecting the rights of citizens. The muscle was in these early days but poorly
developed, and the ball was frequently dropped.
This was a case where Justice Glasgow declared that a law which required
police permission for all meetings and gathering of persons except for genuine
religious assemblies was unconstitutional.
It was the beginning of many forensic contests between the two
trial-greats of St Kitts of the time, Dr
William V Herbert and Lee Llewellyn
Moore. Lee argued that as the
charges had been brought the day before the Constitution came into effect, the
Constitution did not apply to the defendants.
He also argued that the Constitution guaranteed the right to assemble
freely, and that the impugned law only restrained the right to assemble freely
in a public place. The Constitution, he
argued, did not guarantee the right to assemble freely in a public place, it
only guaranteed the right to assemble freely.
Lee often took extremely authoritarian positions in his legal arguments. More often than not, Billy’s more libertarian
arguments won the day. They did not
entirely do so on this occasion. Justice
Glasgow decided that the impugned law did contravene the Constitution, but that
did not affect the offences charged against the defendants as they were
committed before the Constitution came into effect. So, it was a Pyrrhic victory. He partly won the case, but still lost his
freedom. Not a satisfactory outcome for
anyone.
The Powell and Thomas case
also demonstrates the extremely narrow attitude adopted by our judges at the
time when it came to the types of legal authorities they would permit to be
cited before them. Then, our courts only
recognised English cases, and, reluctantly at first, West Indian cases. The report notes[34]
that Lee Moore had to seek the court’s permission, which he received, before he
could refer the court to the learning in a number of cases on the Constitution
of India.[35] Contrast that with today, when an attorney
can refer the court to any learning that might help the court.
Our court has gone a long
way from the situation revealed by the 1968 High Court decision in the case of Marie Dib of Dominica.[36] Mrs Dib was the 73 year-old widow of Ayub Dib, who had been a Lebanese
merchant of some substance in Roseau.
When he died in 1963, Mrs Dib was entitled under his will to certain
properties and an interest in his business in Dominica. She was illiterate. She was only able to sign her name. Mrs Dib gave Mr Karam a general power of
attorney. She handed over control of her
financial affairs to him. He collected
rents. He compromised law suits. He put up her property for sale. He got her to sign deeds transferring her
property to him allegedly for cash. In
fact, no money was paid. The following
year, she sued for the recovery of her properties. She claimed that she had signed the transfer
documents under a mistake as to their nature.
She had understood that they related to the rental of the properties and
the management of the business. She
claimed that Mr Karam had abused her confidence in him and had influenced her
to sign documents that were injurious to her.
She claimed that he took an undue and unconscientious advantage of her. He denied her allegations of fraud and of
undue influence. He claimed that the
sale to him had been made on her proposal.
The documents had been read and explained to her by the solicitor who
prepared them. She had signed with full
knowledge of their contents and as her voluntary act. Quite amazingly, in my view, the High Court
found that Mr Karam had taken no advantage of his position or of the confidence
reposed in him, and that the transactions were entered into in perfect good
faith and after full disclosure. The
Court of Appeal happily reversed the High Court. Sir
Allen Lewis and Keith Gordon JA
delivered substantive judgments. They
agreed that the appeal must succeed, and the transfers would not be allowed to
stand. These were early days in the
development of trust law in the ECSC.
The Ben Jones case[37]
coming out of Grenada in 1968 was another example of the narrow and restricted
way in which the High Courts of that early period exercised the jurisdiction
given by our Constitutions to protect our freedoms. In that case, Ben Jones was an unsuccessful
candidate in general elections in Grenada.
He was appointed to the Senate by the Governor. Successful members of our parliaments are
notoriously reluctant to see candidates who have not succeeded entering
parliament in whatever capacity. There
have been other similar cases in our region.
The members of the successful party objected to Jones’ nomination. They were supported by the President of the
Senate. The President ruled that Mr
Jones was not qualified to be sworn as a Senator. Jones brought a case in the High Court. Section 37 of the 1967 Grenada Constitution[38]
gave the High Court jurisdiction to determine whether any person had been
validly appointed a Senator. The section
said[39]
that the legislature might provide for the powers, practice and procedure of
the High Court in relation to any such application. No such provision had been made by the
legislature. The legislature had not set
out the powers, practice and procedure of the High Court. But, then, it had not
constrained them either. Section 103 is
the section that grants the High Court the general power to give citizens the
widest relief for breaches of the Constitution.
The wide powers of the court under this section expressly[40]
did not apply to questions of appointment to the Senate under section 37. Ben Jones came before the High Court seeking
a declaration and various orders that would have compelled the President to
swear him in. The President’s counsel
argued that the High Court’s ordinary powers and remedies did not apply. The court was a special court established by
the Constitution. As such, it only had
such powers as the legislature gave it.
As the legislature had not given the High Court any powers, it had
none. The High Court judge agreed. He decided that the High Court’s ordinary
powers and remedies did not apply as the court was a special court established
by the Constitution and only had such powers as the legislature gave it. But, as the legislature had not given the
High Court any powers, it had none. The
court could only answer the question put to it.
Ben Jones had been validly appointed a Senator. But, the court could not grant him any
relief. Respectfully, I do not agree
with that interpretation. I would hope
that it would not be repeated today.
Section 103 does not give the High Court jurisdiction to hear section 37
questions. It is section 37 that gives
the jurisdiction.[41] It sets out certain rules of practice and
procedure.[42] It then gives the legislature the power to
regulate the powers, practice and procedure of the High Court. It does not follow that until the legislature
does so, the court is powerless. The
section does not say, nor in my view does it inevitably follow, that if the
legislature fails to make provision then the Court has no power to grant relief. In my view, this case is one of the early
examples of the initial timidity of our courts in protecting the rights and
freedoms of our citizens under the Constitution.
The test of constitutional validity of
legislation and executive conduct was first crafted in 1973 by Percy Lewis CJ [Ag] in the Antigua
Times[43]
case. He it was who first laid down that:
There is a presumption of
constitutionality of impugned legislation, the viability of which must be
weighed as follows:-
Once
a prima facie case is made out by the applicant that the legislation or the executive
conduct violates a fundamental right, then there is a burden on the State to show
that the legislation or the executive policy or conduct comes within the permissible
limits allowed by the Constitution, and that its enactment or implementation
was reasonably required.
The doctrine of
proportionality that he laid down in that case was temporarily set back by the
decision of the Privy Council. But, it
has at last triumphed in the DeFreitas case,[44]
the Antigua Observer case,[45]
the John Benjamin case,[46]
and Brown v Stott.[47]
We have had our share of
judges who have taken shelter under silly technicalities in order to avoid
possibly embarrassing the government. We
have come quite a long way since the days of the decision of our Court of
Appeal in Tim Hector’s case.[48] All Antiguans will remember that that case
was one in which Hector and the Outlet Newspaper were charged with an offence
of “printing of false statements likely
to undermine public confidence in the conduct of public affairs”. Justice Albert
Matthew had declared that those words[49]
were unconstitutional. The Chief-Justice
held that he was wrong, and his fellow Justices of Appeal agreed with him. That reactionary decision was happily
corrected by the Privy Council.[50] Lord
Bridge of Harwich in delivering the opinion of the Board said,[51]
In a free
and democratic society it is almost too obvious to need stating that those who
hold office in government and who are responsible for public administration must
always be open to criticism. Any attempt
to stifle or fetter such criticism amounts to political censorship of the most
insidious and objectionable kind. At the
same time it is no less obvious that the very purpose of criticism levelled at
those who have the conduct of public affairs by their political opponents is to
undermine public confidence in their stewardship and to persuade the electorate
that the opponents would make a better job of it than those presently holding
office. In the light of these
considerations their Lordships cannot help viewing a statutory provision which
criminalises statements likely to undermine public confidence in the conduct of
public affairs with the utmost suspicion.
Nor can we be proud of the
1990 St Vincent High Court decision in Egerton Richards’ case.[52] There the judge threw out for mere technical
breaches a very serious constitutional issue of great public importance. It concerned whether the Governor had the
right to appoint opposition senators when the government had won all the seats
at an election. We can be confident that
our High Court Judges would today be very reluctant to shy away from coming to
a decision in such an important matter.
The more recent decision
of the Court of Appeal in Anguilla in John Benjamin’s case was
undoubtedly a temporary setback to the progress that our courts have made. Government had closed down a popular call-in
programme on the island’s sole government-owned radio station, because of
criticism on it of government action. In
the High Court, Adrian Saunders J
[as he then was] had ruled that Government’s action was unconstitutional. It was a contravention
of the Applicants’ right to freedom of expression guaranteed and enshrined in
the Constitution. He called it
an arbitrary or capricious withdrawal of a platform which had been made
available by the government. The members
of the Court of Appeal were persuaded to set aside his orders. They rejected the
argument that a radio station could be a public place where there was a right to
express views. They held that, on the
contrary, it was "property which is
not by tradition or designation a forum for public communication." Fortunately, the Privy Council was able to
restore Justice Saunders’ original decision.
They held that he had been entitled and right to find here that there
had been a contravention of Mr Benjamin’s rights to freedom of speech and
expression protected by the Constitution.
Undoubtedly, one of the High Court decisions
that the court can feel proud about is the decision of Albert Redhead J in the Barbuda Council case.[53] All Antiguans will be familiar with the
case. In 1992, Ephraim Georges J had granted an injunction against a sand mining
company from taking sand from a beach in Barbuda. The Minister of Agriculture in the Government
of Antigua arranged with the officers of the sand mining company for the
company’s trucks and bulldozers to be rented to the government. The Minister hired the drivers, and the
mining continued. The trucks the
Minister had rented from the sand mining company delivered the sand to the
company at the barges drawn up on the beach.
The Barbuda Council applied to Justice Redhead in the High Court for the
Minister and those involved in the continuing mining to be committed for
contempt of court. The Minister was
completely unrepentant. He argued that
he did not have to obey the injunction as it had not been served on him
personally. He argued that Ministers of
the Crown cannot be proceeded against for contempt of court, even if they give
and break a personal undertaking to the court.
Justice Redhead rejected all the Minister’s excuses. He held that once the Minister knew of the
injunction and its terms, as the Minister did in this case, and once he aided
and abetted the mining company in breaching the terms of the injunction, as he
did in this case, he was guilty of contempt.
He found the Minister’s actions to be a gross interference with the
order of the Court, a challenge to the independence of the court, and an
affront to the rule of law. He sentenced
the Minister and the company officials to one month’s imprisonment. It is no fault of the court, or of Antigua
and Barbuda’s legal system, that the Governor General was persuaded by the
government to grant a full pardon the same day.
There was a time, not so
long ago, when judges all over the Commonwealth were universally held in high
esteem. And, they were comfortable with
their status. As Lord Hewart humorously put it to the guests assembled at the Lord
Mayor’s banquet in London in 1936:[54]
His
Majesty’s judges are satisfied with the almost universal admiration in which
they are held.
Similarly, Lord
Devlin suggested tongue in cheek in 1979 that:
The
English judiciary is popularly treated as a national institution . . . and,
like the navy, tends to be admired to excess.
Lord Donaldson, a former Master of the Rolls, ironically summed
up the commonly held view of judges and accountability with this statement:
The
essence of my job is that I am responsible to the law and to my conscience and
to no one else.
This attitude extended to
and was shared throughout the West Indies.
This has all changed over the years.
Our judiciary is now much more open to criticism. Judges are no longer sacrosanct. Especially since our judges have been asked
to interpret the Constitution, and to rule on governmental action, there has
been increased public attention to the work that judges do. When an important case is tried, there is
hardly a newspaper that does not carry a story on it. The call-in radio programmes sometimes seethe
with comment, pro and con. In my view,
this is a healthy development. It
reflects the changing role that the courts play in a modern society. This has happened not only in our
society. John Mortimer, the English lawyer and writer wrote humorously,
Many
years ago, when I first took up the law, proceedings in court were shrouded in
myth. In those days the country at large
believed that trial invariably came to the right conclusion, that police
officers told nothing but the truth, and that judges were miraculously
conceived and were born unencumbered with the usual human luggage of
preconceived ideas, knee-jerk reactions, prejudices, failures of the
imagination, inability to admit mistakes, or pure bloody-mindedness.
These myths have now, no doubt to the regret of many members of
the legal profession, gone the way of witchcraft and the Flat Earth
Society. Trials have, despite energetic
whitewashing by appeal tribunals, been shown to have gone horribly wrong. Police evidence is now taken by juries with
large helpings of salt. And the
pronouncements of some judges, before and since retirement, have gone beyond
endearing eccentricity to give some cause for alarm.
But, as the Rt Hon Beverley McLachlin, Chief
Justice of Canada, put it,[55]
if judges are more and more the subject of critical scrutiny, the truth is that
the public has never held our judiciary in higher esteem. This is proved by the fact that it turns to
the judiciary more and more for the resolution of its problems. It is not so much agreement with the court’s
decisions, but a result of faith in the judicial process. Our people appear to share a profound belief
that when other institutions fail, one can count on the fairness of the courts.
Those of us who have been
around the courts for many years have observed that the courts are going
through change on several fronts. Not so
long ago, it was thought that it was the House of Assembly that made the law,
and it was for the judge to apply it to the case, and that was the entire
story. It is now realised that it is not
so simple. From time immemorial, judges
have interpreted and incrementally changed the law. The judge is obliged to play the role of
law-developer in resolving disputes fairly.
This role has now dramatically expanded.
Judges are now obliged, given the increasing scope of disputes that are
brought before them, to develop the law in the domain of social policy. The increasing awareness of human rights
helps drives this process. When our
citizens bring issues of wrongful deprivation of property, liberty, or freedom
of movement, before the court, then our judges, unqualified as they are, are
forced to venture into the area of social policy. When our legislatures are reluctant to deal
with pressing social issues such as women’s rights and family property, then
the courts are, whether they like it or not, obliged to resolve these
issues. Judges are called on to be ever
more sensitive to a broad range of social concerns. The ivory tower no longer suffices as the
residence of choice for judges. At the
same time, the judge must strive for objectivity. It requires both an act of imagination and an
attitude of ‘active humility’.
Fortunately, we can be confident that our judges of the Eastern
Caribbean Supreme Court, both at first instance and in the Court of Appeal, are
equal to the task.
A Speech delivered to the
Judiciary and members of the Bar at the Multipurpose Cultural Centre, Perry
Bay, Antigua, on Thursday 15 March 2007, in celebration of the 40th Anniversary
of the Eastern Caribbean Supreme Court.
[1] The term Little 8
included Barbados, but not the Virgin Islands. The latter opted not to
participate in the West Indies Federation,
believing that its future lay in association with the USVI.
[2] Well, not quite each island. Anguilla and Nevis were dependencies of St
Kitts, until Anguilla broke away in a bloodless armed revolution in 1967, while
Barbuda was and remains a dependency of Antigua.
[3] The Virgin Islands is the historically
correct designation of Tortola, Virgin Gorda et al. It is St Thomas,
St Croix and St John
that are the “United States Virgin
Islands”. The Virgin Islands with
increasing frequency over the years began to be referred to as the “British Virgin Islands.”
[4] By virtue of the West Indies
Associated States Supreme Court Order, SI 1967 No 223.
[5] Established by the Windward Islands and Leeward Islands
(Courts) Order in Council, SI 1959 No 2197, which came into force on 1 January 1960.
[6] The high court in Antigua and Barbuda
was then described as the “Supreme Court
of the Leeward Islands and Windward Islands (Antigua Circuit)”, for example. See: Catherine Herbert v R (1959) 1 WIR,
470; and John Bramble v R (1959) 1 WIR, 473; and R v Maynes
(1959) 1 WIR, 368.
[7] See, for example, the decision in Watts
v COP (1967) 10 WIR, 530 where the appeal was heard by AM Lewis CJ and St
Bernard J; or Spencer v Superintendent of Police (1967) 10 WIR, 541,
where the appeal was heard in the High Court of Antigua by Louisy J and
Berridge J (Ag).
[8] Knighted the following year, and
officially styled to as Sir Allen Montgomery Lewis. His biography and those of various other
Chief Justices can be found on the ECSC website at http://www.eccourts.org/aboutecsc/history.html
[9] These island origins I have inserted
from memory, and one or more of them may be mistaken. My apologies to any one who is offended by an
error.
[10] See the first reported judgment of the
court in Lesmond v R (No 1), (1967) 10 WIR, 252, a murder appeal from St
Lucia.
[11] See the lists of the judges of the
various courts in 1967 at page vi of 9 WIR.
[12] Who first appears in Bramble v R
(1959) 1 WIR, 473.
[13] Who first appears in Joseph v R
(1959) 1 WIR, 365.
[14] Who first appears in the Joseph case
supra.
[15] Who first appears in the Joseph case
supra.
[16] Who first appears in Crown Attorney v
Mercer (1964) 6 WIR, 354.
[17] Who first appears in Babb v Half Moon
Bay Ltd (1967) 12 WIR, 294.
[18] Who first appears in Martin v
Greenaway (1959) 3 WIR, 439.
[19] In Margetson v A-G (1968) 12 WIR, 469.
[20] Dame Bernice Lake QC, as she is now more
correctly styled, first appears in the West Indian Reports in the case of Joseph
v Lockhart (1970) 14 WIR, 444.
[21] In Agard v Asst Sup of Police (1964)
7 WIR, 245.
[22] In Wade v Chief of Police (1969) 14
WIR, 173.
[23] Properly, Dr Joseph Archibald QC, of
Tortola.
[24] Charles v Phillips and Sealey (1967) 10
WIR, 423.
[25] Herbert v Phillips and Sealey (1967) 10
WIR, 435.
[26] Sir Fred A Phillips, the first
respondent.
[27] 3(1). No person shall be deprived of his
personal liberty save as may be authorised by law in any of the following cases
. . .”
[28] The decisions turned principally on
whether the Leeward Islands (Emergency Powers) Order in Council 1959 was
“a law enacted by the legislature”,
and whether it was an “existing law”
for the purposes of the transitional provisions of the Constitution.
[29] Charles F Henville QC, Crawford with
him, appeared for the Charles, while Malcolm Butt QC of Trinidad, Frederick
Kelsick, Jenner Armour and Earl Francis appeared for Dr William Herbert. JS Archibald, Senior Crown Counsel, appeared
for the respondents.
[30] Reported as A-G of St Christopher
Nevis Anguilla v Brisbane (1968) 11 WIR, 525.
[31] By section 3 of the External Trade
Ordinance.
[32] By section 4.
[33] Chief of Police v Powell and Thomas
(1968) 12 WIR, 403.
[34] At page 410.
[35] These included Keshavan Madhava Menon v The State of
Bombay (5) (1951) reported
at p.2 of Basu’s Cases on the Constitution of India, 1950-1951; and Chiranjut
Lal Chowdhury v The Union of India and Others (6) reported at p.18.
[36] Dib v Karam (1968) 11 WIR, 499.
[37] Reported as Jones v Gibbs and Knight
(The Attorney-General Intervening) (1968) 12 WIR, 311.
[38] Grenada Constitution Order 1967 (SI 1967
No 227).
[39] At section 37(5).
[40] By section 37(7) which said, “Nothing in this section shall confer
jurisdiction on the High Court to hear or determine any such question as is
referred to in s.37 of this Constitution.”
[41] In s.37(1) when it says, “The High Court
shall have jurisdiction to hear and determine any question whether (a) any
person has been validly appointed as a Senator; . . .”
[42] For example at s.37(2) where it says
that an application to the High Court “may
be made by any person registered in a constituency as a voter in elections of
members of the House of Representatives or by the Attorney General . . . and if
it is made by a person other than the Attorney-General, the Attorney-General
may intervene and may then appear or be represented in the proceedings.”
[43] Antigua Times v A-G
in the Court of Appeal, cited by Dame Bernice V Lake QC in her 2003 address: ‘Prioritizing
Socio-Economic Issues and Democratization in the Caribbean’ which is to be
found at: http://cavehill.uwi.edu/bnccde/antigua/conference/papers/lake.html; and see her address to the Fifth Annual Caribbean Media Conference
on ‘The Caribbean Court of Justice: Public Confidence and the Role of the Media’
which can be read at http://www.caribbeancourtofjustice.org/papersandarticles/ccj-lake.pdf.
[44] DeFreitas v A-G, Civil
Appeal 42 of 1997, Antigua and Barbuda. [Unreported]
[45] Observer Publications Ltd v Matthew et
al [2001] UKPC 11.
[46] Benjamin and Others v Minister of
Information [2001] UKPC, 8; [2001] 4 LRC, 272; [2001] 1 WIR, 1040.
[47] Brown v Stott [2003] 1 AC, 681; [2001] 2
WLR, 817; [2001] 2 All ER, 97.
[48] A-G v Tim Hector (1987) 40 WIR, 135.
[49] Under the Public Order Act 1972
as amended by the Public Order Amendment Act 1976.
[50] Hector v A-G (1990) 37 WIR, 216.
[51] At p.219.
[52] Richards v A-G, No 484/1989, St Vincent. [Unreported]
[53] Barbuda Council v A-G et al, Suit No 456
of 1988, Antigua & Barbuda. [Unreported decision of Redhead J on 10
September 1993]
[54] The following quotations and
observations are taken from the remarks of the Rt Hon Beverly McLachlin PC on Judicial
Accountability, presented at the Law and
Parliament Conference, Ottawa, November 2, 2006, and which can be found at http://www.scc-csc.gc.ca/aboutcourt/judges/speeches/Ju_Resp_e.asp
[55] In her remarks at the Fourth Worldwide Common Law Judicial
Conference on ‘The Role of Judges in Modern Society’, May 5, 2001 found at http://www.scc-csc.gc.ca/aboutcourt/judges/speeches/role-of-judges_e.asp
