University of the West Indies

Faculty of Law
Constitutional Law 2003/2004

Worksheet 2

U.K Parliamentary Sovereignty Held, (1.) that Parliament cannot bind itself
as to the form of subsequent legislation and
Edinburgh and Dalkeith Railway Co. v. cannot effectively enact that a provision in
Wauchope 8 Cl. & Fin. 710 one statute shall not be altered by a
subsequent Act save by express words, and
In the course of the proceedings a point was (2.) that s. 46 of the Housing Act, 1925, so
taken to the effect that a private Act which far as its provisions are inconsistent with
affected a vested right could not be made those of the Act of 1919 has repealed by
applicable to a person who had had no notice implication the provisions of the Act.
served upon him of the introduction of the
Bill. Per Scrutton L.J. at pgs 595-596:

per Lord Campbell, at p. 725: “Mr. Hill’s contention is that if in a later Act
provisions are found as to the compensation
"There is no foundation whatever for it. All to be paid for land which are inconsistent with
that a court of justice can do is to look to the those contained in the Act of 1919, the later
Parliamentary roll: if from that it should provisions are to have no effect. Such a
appear that a bill has passed both Houses and contention involves this proposition, that no
received the Royal assent, no court of justice subsequent Parliament by enacting a
can inquire into the mode in which it was provision inconsistent with the Act of 1919
introduced into Parliament, nor into what was can give any effect to the words it uses. Sect.
done previous to its introduction, or what 46, sub-s. 1, of the Housing Act, 1925, says
passed in Parliament during its progress in its this: “Where land included in any
various stages through both Houses. I trust, improvement or reconstruction scheme … is
therefore, that no such inquiry will again be acquired compulsorily,” certain provisions as
entered upon in any court in Scotland, but that to compensation shall apply. These are
due effect will be given to every Act of inconsistent with those contained in the
Parliament, private as well as public, upon Acquisition of Land (Assessment of
what appears to be the proper construction of Compensation) Act, 1919, and then s. 46,
its existing provisions." sub-s. 2, of the Act of 1925 provides:
“Subject as aforesaid, the compensation to be
Ellen Street Estates Limited v Minister of paid for such land shall be assessed in
Health [1934] 1 K.B. 590 accordance with the Acquisition of Land
(Assessment of Compensation) Act, 1919.” I
Sect. 7 of the Acquisition of Land asked Mr. Hill what these last quoted words
(Assessment of Compensation) Act, 1919, mean, and he replied they mean nothing.
enacts that the provisions of the Act or order That is absolutely contrary to the
by which land is authorised to be acquired, or constitutional position that Parliament can
of any Act incorporated therewith, “shall, in alter an Act previously passed, and it can do
relation to the matters dealt with in this Act, so by repealing in terms the previous Act –
have effect subject to this Act, and so far as Mr. Hill agrees that it may do so – and it can
inconsistent with this Act those provisions do it also in another way – namely, by
shall cease to have or shall not have effect.” enacting a provision which is clearly
inconsistent with the previous Act. In
Maxwell’s Interpretation of Statutes I find
three or four pages devoted to cases in which have regard to the purposes for which money
Parliament, without using the word “repeal,” representing the tax charged under the
has effected the same result by enacting a assessments was to be used.
section inconsistent with an earlier provision.
It is impossible to say that these words that On appeal:-
compensation shall be assessed in a particular
way and, subject as aforesaid, shall be Held, dismissing the appeal, (1) that there was
assessed in a particular way and, subject as no conflict between the Geneva Conventions
aforesaid, shall be assessed in accordance Act, 1957, and the Finance Act, 1964, since
with the provisions of the Act of 1919 have there was no conflict between the specific
no effect.” amendments in the former Act and the
Finance Act and the title and preamble of the
Per Maugham L.J. at pg 597: Geneva Conventions Act could not make the
Geneva Convention statute.
“Mr. Hill contends that as regards subsequent
legislation, in the absence of an express repeal (2) That the conventions, being ratified by the
of this provision of the Acquisition of Land Crown as an executive Act and not by Act of
(Assessment of Compensation) Act, 1919, the Parliament, could not prevail against the
provisions of that Act must apply, however Finance Act which was a statute in
clear the intention of Parliament, as expressed unambiguous terms.
in the subsequent Act, is to modify the
provisions of the Act of 1919. I am quite (3) That what a statute enacted could not be
unable to accept that view. The Legislature unlawful.
cannot, according to our constitution, bind
itself as to the form of subsequent legislation, Per Ungoed Thomas at pg 247
and it is impossible for Parliament to enact
that in subsequent statute dealing with the “I shall just mention another limb to the
same subject-matter there can be no implied taxpayer's argument; namely, that any
repeal. If in a subsequent Act Parliament unlawful purpose for which a statutory
chooses to make it plain that the earlier statute enactment may be made vitiates the
is being to some extent repealed, effect must enforcement of that statute. As was pointed
be given to that intention just because it is the out for the Crown, if that argument were
will of the Legislature.” correct it would mean that the supremacy of
Parliament would, in effect, be overruled. If
the purpose to which a statute may be used is
Cheney v Conn [1968] 1 WLR 242 an invalid purpose, then such remedy as there
may be must be directed to dealing with that
The taxpayer appealed against assessments to purpose and not to invalidating the statute
income tax and surtax on the ground that a itself. What the statute itself enacts cannot be
substantial part of the tax so raised was unlawful, because what the statute says and
allocated to the construction of nuclear provides is itself the law, and the highest form
weapons. He contended that the use of of law that is known to this country. It is the
nuclear weapons was contrary to international law which prevails over every other form of
law which was part of the law of England; law, and it is not for the court to say that a
that the use of money for the construction of parliamentary enactment, the highest law in
nuclear weapons was illegal as conflicting this country, is illegal. The result therefore is
with the Geneva Conventions which were that on this ground, also, the taxpayer's case
incorporated in the Geneva Conventions Act, fails.”
1957,1 and thus impliedly ratified by Act of
Parliament as well as by the Crown in the British Railway Board v Pickin [1974] 2
usual way, and that there was a conflict W.L.R. 208
between the Geneva Conventions Act, 1957,
and the Finance Act, 1964, under which the By section 259 of a private Act of 1836
tax was charged. The special commissioners, setting up the Bristol to Exeter railway, it was
dismissing the appeal, held that it was not provided that if the railway should at any time
relevant to the validity of the assessments to thereafter be "abandoned or given up" by the

2
company promoting the Act or should after By his reply the plaintiff pleaded in
completion cease to be used as a railway for paragraphs 3 and 4 that the preamble to the
three years, the lands acquired for the track Act of 1968 contained a false recital in
"shall vest in the owners for the time being of reference to the depositing of the requisite
the land adjoining that which shall be so documents because no plans and book of
abandoned" as to "one moiety thereof" in the reference were in fact deposited with the
owners of the land on either side. The section Somerset county council; that the board had
was incorporated in a private Act of 1845 for misled Parliament by obtaining the Act ex
the formation of a junction railway from parte as an unopposed Bill; and that it was
Yatton to Clevedon in Somerset which was therefore ineffective to deprive him of his
built and used thereafter. The Acts continued land and the board could not rely on section
in force; but in the early 1960s, by which date 18.
all railways had vested in the British Railways
Board, it was decided to close the branch line; The board applied to have paragraphs 3 and 4
and its use was discontinued in stages, struck out under R.S.C., Ord. 18, r. 19 as
Clevedon station being demolished in May frivolous, vexatious and an abuse of the
1968; but the track lines were not taken up process of the court. Master Elton and
until October 1969. Chapman J. on appeal struck them out,
Chapman J. basing his judgment on the
At some date before July 26, 1968, the board principle that the court could not go behind an
promoted a private Bill before the unopposed Act of Parliament alleged to have been
Bill committee in Parliament with the object, obtained improperly. The Court of Appeal
inter alia, of cancelling the effect of section reversed his decision.
259 of the Act of 1836 and similar provisions
in old Acts and of vesting all the relevant On appeal to the House of Lords: -
track land in the board from the date when the
proposed Act should come into force. The Held, allowing the appeal, that the function of
preamble recited that plans of the lands the court was to consider and apply the
authorised to be acquired and a book of enactments of Parliament, and accordingly, in
reference to such plans containing the names the course of litigation, it was not lawful to
of persons interested in the land had been impugn the validity of a statute by seeking to
deposited with, inter alia, the clerk to the establish that Parliament, in passing it, was
council of the county in which the lands were misled by fraud or otherwise, nor might a
situate; and section 18 in effect vested the litigant seek to establish a claim in equity by
relevant lands in the board in respect of any showing that the other party, by fraudulently
railway abandoned after the Act should come misleading Parliament had inflicted damage
into force. The Act-the British Railways Act on him; any investigation into the manner in
1968 - came into force on July 26, 1968. which Parliament had exercised its function
would or might result in an adjudication by
The plaintiff, who objected to the closing of the courts, bringing about a conflict with
the branch line and had in 1969 purchased a Parliament.
few feet of the relevant adjoining land as a
locus standi, began an action claiming against Per Lord Reid:
the board, and against contractors who had in
October 1969 taken up the lines, a declaration At pg 213
that he was the owner of the land to mid-track
since in fact the railway had been abandoned “As the respondent's case developed in
within the terms of section 259 of the Act of argument it appeared that he seeks one or
1836 before July 26, 1968; and he asked for other of two methods of relief against section
the return of his land or its value. The board 18. First he says that section 18 confers a
denied that the railway had been abandoned benefit on the appellants and that if he can
before section 18 came into force and claimed prove that Parliament was fraudulently misled
that as under that section the land had vested into enacting this benefit the court can and
in the board the claim was invalid. should disregard the section. And, secondly,
he says that even if the court cannot do that
and the section has taken effect, the court can

3
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4
50q ð‘5€5pondent's contention is that processes of Parliament there will be much
there is a difference between a public and a consideration whether a Bill should or should
private Act.” not in one form or another become an
enactment, When an enactment is passed
At pg. 217-218 there is finality unless and until it is amended
or repealed by Parliament. In the courts there
“The function of the court is to construe and may be argument as to the correct
apply the enactments of Parliament. The court interpretation of the enactment: there must be
has no concern with the manner in which none as to whether it should be on the Statute
Book at all.”
Parliament or its officers carrying out its
Standing Orders perform these functions. Any And at pg 220
attempt to prove that they were misled by
fraud or otherwise would necessarily involve “The conclusion which I have reached results,
an inquiry into the manner in which they had in my view, not only from a settled and
performed their functions in dealing with the sustained line of authority which I see no
Bill which became the British Railways Act reason to question and which I think should
1968. be endorsed but also from the view that any
other conclusion would be constitutionally
In whatever form the respondent's case is undesirable and impracticable. It must surely
pleaded he must prove not only that the be for Parliament to lay down the procedures
appellants acted fraudulently but also that which are to be followed before a Bill can
their fraud caused damage to him by causing become an Act. It must be for Parliament to
the enactment of section 18. He could not decide whether its decreed procedures have in
prove that without an examination of the fact been followed. It must be for Parliament
manner in which the officers of Parliament to lay down and to construe its Standing
dealt with the matter. So the court would, or Orders and further to decide whether they
at least might, have to adjudicate upon that. have been obeyed: it must be for Parliament
to decide whether in any particular case to
For a century or more both Parliament and the dispense with compliance with such orders. It
courts have been careful not to act so as to must be for Parliament to decide whether it is
cause conflict between them. Any such satisfied that an Act should be passed in the
investigations as the respondent seeks could form and with the wording set out in the Act.
easily lead to such a conflict, and I would It must be for Parliament to decide what
only support it if compelled to do so by clear documentary material or testimony it requires
authority. But it appears to me that the whole and the extent to which Parliamentary
trend of authority for over a century is clearly privilege should attach. It would be
against permitting any such investigation.” impracticable and undesirable for the High
Court of Justice to embark upon an inquiry
Per Lord Morris of Borth-Y-Gest, at pgs 218- concerning the effect or the effectiveness of
219 the internal procedures in the High Court of
Parliament or an inquiry whether in any
“In my view, it is beyond question that the particular case those procedures were
substance of the plea advanced by the two effectively followed.”
paragraphs is that the court is entitled to and
should disregard what Parliament has enacted Per Lord Wilberforce at pg 222
in section 18. The question of fundamental
importance which arises is whether the court “The idea, which seems to have had some
should entertain the proposition that an Act of currency, mainly in Scotland, that an Act of
Parliament can so be assailed in the courts Parliament, public or private, or provision in
that matters should proceed as though the Act an Act of Parliament, could be declared
or some part of it had never been passed. I invalid or ineffective in the courts on account
consider that such doctrine would be of some irregularity in Parliamentary
dangerous and impermissible. It is the procedure, or on the ground that Parliament in
function of the courts to administer the laws passing it was misled, or on the ground that it
which Parliament has enacted. In the was obtained by deception or fraud, has been

5
decisively repudiated by authorities of the their own internal proceedings (Erskine May,
highest standing from 1842 onwards. The pp. 176, 195, 197).
remedy for a Parliamentary wrong, if one has
been committed, must ba sought from "What is said or done within the walls of
Parliament, and cannot be gained from the Parliament cannot be enquired into in a
courts. The law in my opinion is correctly court of law. On this point all the judges
summed up in Halsbury's Laws of England, in the two great cases which exhaust the
3rd ed. (1961), vol. 36, p. 378, para. 560 in learning on the subject, Burdett v.
these words: Abbott (1811) 14 East 1 and Stockdale
v. Hansard (1839) 9 Ad. & El. 1; - are
"If a Bill has been agreed to by both agreed, and are emphatic."
Houses of Parliament, and has received
the Royal Assent, it cannot be And at pg 229
impeached in the courts on the ground
that its introduction or passage through “The respondent claims, however, that,
Parliament, was attended by any whatever may be the position as regards a
irregularity or even on the ground that it public Act of Parliament, it is open to a
was obtained by fraud." litigant to impugn the validity (or, at least, by
invoking jurisdiction in equity, nullify the
Per Lord Simon of Glaisdale at pgs 277-228 operation) of an enactment in a private Act of
Parliament. But the considerations of
The system by which, in this country, those parliamentary privilege to which r have
liable to be affected by general political referred would undoubtedly seem to extend to
decisions have some control over the private Bill procedure; and the authorities to
decision-making is parliamentary democracy. which my noble and learned friends have
Its peculiar feature in constitutional law is the adverted are clearly contrary to the
sovereignty of Parliament, This involves that, respondent's submissions. What was said in
contrary to what was sometimes asserted Edinburgh and Dalkeith Railway Co. v.
before the 18th century, and in Wauchope, 8 Cl. & F. 710 seems to me to be
contradistinction to some other democratic particularly apposite and authoritative: even
systems, the courts in this country have no though counsel there did not finally venture to
power to declare enacted law to be invalid. It argue that the validity of a provision in a
was conceded before your Lordships private Act could be impugned on the ground
(contrary to what seems to have been that it had been obtained by fraud, the point
accepted in the Court of Appeal) that the was formally before the House; nor is it
courts cannot directly declare enacted law to possible to conceive that Lord Cottenham,
be invalid. That being so, it would be odd if Lord Brougham and Lord Campbell were all
the same thing could be done indirectly, entirely oblivious to what had appeared in
through frustration of the enacted law by the later editions of Blackstone.
application of some alleged doctrine of
equity. Moreover, the distinction that the respondent
sought to draw between public and private
A second concomitant of the sovereignty of Acts of Parliament breaks down when one
Parliament is that the Houses of Parliament considers that there is a third, intermediate,
enjoy certain privileges. These are vouchsafed class of proceedings in Parliament between
so that Parliament can fulfil its key function public and private Bills - namely, hybrid
in our system of democratic government. To Bills. These are public Bills some provisions
adapt the words of Lord Ellenborough C.J. in of which affect private rights. Those
Burdett v. Abbott (1811) 14 East 1, 152: "they particular provisions are subject to the
[the Houses] would sink into utter contempt procedure of private Bill legislation; though
and inefficiency without [them]." the Bills finally emerge as public Acts. For
Parliamentary privilege is part of the law of the purpose of his argument counsel for the
the land (see Erskine May's Parliamentary respondent sought to distinguish a hybrid Bill
Practice, 18th ed. (1971), ch. v). Among the from a private Bill on the ground that only the
privileges of the Houses of Parliament is the latter had a promoter on whom a constructive
exclusive right to determine the regularity of trust could be imposed arising from his

6
having misled Parliament. But it is difficult to Parliament can commit us, says Mr.
see how the position of a Minister in relation Blackburn, to that extent. He prays in aid the
to the private Bill procedures applicable to a principle that no Parliament can bind its
hybrid Bill differs from that of the ordinary successors, and that any Parliament can
promoter of a private Bill. reverse any previous enactment. He refers to
what Professor Maitland said about the Act of
A further practical consideration is that if Union between England and Scotland.
there is evidence that Parliament may have Professor Maitland in his Constitutional
been misled into an enactment, Parliament History of England (1908) said, at p. 332:
might well - indeed, would be likely to - wish
to conduct its own inquiry. It would be "We have no irrepealable laws; all laws
unthinkable that two inquiries - one may be repealed by the ordinary
parliamentary and the other forensic - should legislature, even the conditions under
proceed concurrently, conceivably arriving at which the English and Scottish
different conclusions; and a parliamentary Parliaments agreed to merge themselves
examination of parliamentary procedures and in the Parliament of Great Britain."
of the actions and understandings of officers
of Parliament would seem to be clearly more We have all been brought up to believe that,
satisfactory than one conducted in a court of in legal theory, one Parliament cannot bind
law - quite apart from considerations of another and that no Act is irreversible. But
Parliamentary privilege.” legal theory does not always march alongside
political reality. Take the Statute of
Westminster 1931, which takes away the
Blackburn v Attorney-General [1971] 1 power of Parliament to legislate for the
WLR 1037 Dominions. Can any one imagine that
Parliament could or would reverse that
The plaintiff brought two actions against the Statute? Take the Acts which have granted
Attorney-General claiming declarations to the independence to the Dominions and territories
effect that, by signing the Treaty of Rome, overseas. Can anyone imagine that Parliament
Her Majesty's Government would irreversibly could or would reverse those laws and take
surrender in part the sovereignty of the Crown away their independence? Most clearly not.
in Parliament and in so doing would be acting Freedom once given cannot be taken away.
in breach of the law. Eveleigh J. upheld the Legal theory must give way to practical
order of the master striking out the statements politics. It is as well to remember the remark
of claim as disclosing no reasonable causes of of Viscount Sankey L.C. in British Coal
action. Corporation v. The King [1935] A.C. 500,
520:
On appeal by the plaintiff: -
"... the Imperial Parliament could, as
Held, dismissing the appeal, that since the matter of abstract law, repeal or
courts could not impugn the treaty-making disregard section 4 of the Statute of
power of the Crown and would only interpret Westminster. But that is theory and has
laws when they had been enacted by no relation to realities."
Parliament, the statements of claim disclosed
no causes of action. What are the realities here? If Her Majesty's
Ministers sign this treaty and Parliament
Per Denning MR (at pgs. 1040-1041): enacts provisions to implement it, I do not
envisage that Parliament would afterwards go
“Mr. Blackburn takes a second point. He says back on it and try to withdraw from it. But, if
that, if Parliament should implement the Parliament should do so, then I say we will
treaty by passing an Act of Parliament for this consider that event when it happens. We will
purpose, it will seek to do the impossible. It then say whether Parliament can lawfully do
will seek to bind its successors. According to it or not.
the treaty, once it is signed, we are committed
to it irrevocably. Once in the Common Both sides referred us to the valuable article
Market, we cannot withdraw from it. No by Professor H. W. R. Wade ("The Basis of

7
Legal Sovereignty") in the Cambridge Law Roman-Dutch law), and it contained a
Journal, 1955, at p. 196, in which he said that "Declaration of Rights"1 designed to secure
"sovereignty is a political fact for which no "the fundamental rights and freedoms of the
purely legal authority can be constituted ..." individual."
That is true. We must wait to see what
happens before we pronounce on sovereignty On November 5, 1965, a state of emergency
in the Common Market. in Southern Rhodesia was validly proclaimed
So, whilst in theory Mr. Blackburn is quite by the Governor, and emergency regulations
right in saying that no Parliament can bind were made under which, on the following
another, and that any Parliament can reverse day, the first respondent, as Minister of
what a previous Parliament has done, Justice, made an order for the detention of the
nevertheless so far as this court is concerned, appellant's husband, M., on the ground that he
I think we will wait till that day comes. We was "likely to commit acts in Rhodesia ...
will not pronounce upon it today.” likely to endanger the public safety, disturb or
interfere with public order or interfere with
British Coal Corporation v R [1935] All the maintenance of any essential service."
E.R. Rep. 139 Since 1959, M. had from time to time been
detained or placed in a restriction area under
After finding that s. 4 of the Statute of earlier emergency powers. On November 11,
Westminster had vested in the Parliament of 1965, the Prime Minister of Southern
Canada the full power to legislate even in Rhodesia and his colleagues issued a
contradiction of Imperial Statutes, Lord "Declaration of Independence" purporting to
Sankey said at pg 146 D-E: declare that Southern Rhodesia was no longer
a Crown colony but was an independent
“It is doubtless true that the power of the sovereign state. On the same day, in a
Imperial Parliament to pass on its own message to the people of Rhodesia, the
initiative any legislation that it thought fit Governor informed them that the Declaration
extending to Canada remains in theory of Independence was unconstitutional, and
unimpaired; indeed, the Imperial Parliament that the Prime Minister and his colleagues had
could, as a matter of abstract law, repeal or ceased to hold office. His message called
disregard s. 4 of the statute. But that is theory upon the people to refrain from illegal acts
and has no relation to realities. In truth, furthering the objects of the illegal régime,
Canada is in enjoyment of the full scope of and stated as follows:
self-government; its legislature was invested "It is the duty of all citizens to
with all necessary powers for that purpose by maintain law and order in the
the Act, and what the statute did was to country and to carry on with their
remove the two fetters which have already normal tasks. This applies equally to
been discussed.” the judiciary, the armed services, the
police and the public service."
Madzimbamuto v. Lardner-Burke (P.C.) On November 16, 1965, the United Kingdom
[1968] 3 W.L.R. 1229 Parliament passed the Southern Rhodesia Act,
1965, which reasserted that Southern
Southern Rhodesia was annexed by the Rhodesia continued to be part of Her
Crown in 1923, being given the status of a Majesty's dominions and that "the
colony. In 1948 the British Nationality Act, Government and Parliament of the United
1948, created Southern Rhodesian citizenship. Kingdom have responsibility and jurisdiction
In 1961 the colony was granted a Constitution as heretofore for and in respect of it." The Act
whereunder, inter alia, its legislature had provided that Her Majesty might make "such
power to make laws for the peace, order and provision ... as appears to Her to be necessary
good government of Southern Rhodesia and or expedient ..." by Order in Council. On
"the executive authority ... is vested in Her November 18, 1965, the Southern Rhodesia
Majesty and may be exercised on Her (Constitution) Order, 1965, was made, section
Majesty's behalf by the Governor." The 2 (1) of which provided that
Constitution provided that the law to be "any instrument made or other act
administered was the law in force in the Cape done in purported promulgation of
of Good Hope in June 1891 (that being any constitution for Southern

8
 Rhodesia except as authorised by the constitutional law of the United Kingdom
Act of Parliament is void and of no and that it was therefore unnecessary to
effect." consider the principles of Roman-Dutch law
By section 3 (1) the powers of the legislature as to the questions at issue (post, pp. 1246D,
to make laws, of the Legislative Assembly to E, F-1247C).
transact business, and of any person or Dictum of Innes C.J. in Union Government
authority to take steps for the reconstitution of (Minister of Lands) v. Estate Whittaker [1916]
the Legislative Assembly or the election of A.D. 194, 203 applied. Dictum of Innes C.J.
members thereof, were suspended, and by in Rex v. Harrison and Dryburgh [1922] A.D.
section 6 any law made, business transacted 320, 330 considered.
or step taken in contravention of the order
was declared void and of no effect. The Prime (3) That since full sovereignty over Southern
Minister and his colleagues disregarded their Rhodesia was acquired when the territory was
dismissal from office, and the members of the annexed by the Crown in 1923, and had not
Legislative Assembly disregarded its been diminished either by the limited grant of
suspension and purported to adopt the new self-government then made or by United
Constitution of 1965, established by the Kingdom legislation passed since that date,
illegal régime, section 3 of which provided the Queen in the United Kingdom Parliament
that "there shall be an officer administering was still Sovereign in Southern Rhodesia in
the Government in and over Rhodesia." The 1965 and that, accordingly, the Southern
lawful state of emergency under which M. Rhodesia Act, 1965, and the Southern
was detained expired on February 4, 1966, but Rhodesia (Constitution) Order in Council,
his detention was continued under fresh 1965, made thereunder, were of full legal
emergency regulations invalidly made. In effect in Southern Rhodesia; that nothing
proceedings for a declaration that M.'s either in the British Nationality Act, 1948, or
detention was unlawful Lewis and Goldin JJ. in the 1961 Constitution operated to confer
in the General Division held that the 1965 even limited sovereignty upon Southern
Constitution and the Government of the Prime Rhodesia; and that the convention under
Minister and his colleagues were unlawful but which the Parliament of the United Kingdom
that, it being the only effective government, did not legislate without the consent of the
necessity required that effect be given to the Government of Southern Rhodesia on matters
fresh emergency regulations and therefore the within the competence of the Legislative
detention was lawful. On appeal, the Assembly, though important as a convention,
Appellate Division affirmed that decision in had no effect in limiting the powers of the
the main but held that the particular regulation United Kingdom Parliament (post, pp. 1247E-
under which M. had been detained since G, H-1248D, G, H).
February 4, 1966, was ultra vires and invalid,
and therefore allowed the appeal. A fresh (5) (Lord Pearce dissenting) That whether or
detention order was immediately made under not there was a general principle depending
a regulation which the Appellate Division had upon necessity or upon an implied mandate
by implication held to be valid. from the lawful sovereign, which recognised
the need to preserve law and order within
On appeal to the Privy Council against so territory controlled by a usurper, no such
much of the decision of the Appellate principle could override the legal right of the
Division as determined that the regulation Parliament of the United Kingdom to make
under which the existing detention order was such laws as it deemed proper for territories
made was valid and M.'s detention therefore under Her Majesty's Sovereignty; and that,
lawful, leave for such appeal having been therefore, the Southern Rhodesia Act, 1965,
refused by the Appellate Division:- and the Order in Council made thereunder,
whereby the power to make laws was
Held, transferred from the Legislative Assembly to
…….. Her Majesty in Council, were fully effective
and no purported law made by any person or
(2) That the nature of the sovereignty of the body in Southern Rhodesia, no matter how
Queen in the United Kingdom Parliament necessary such law might be, for preserving
over a British colony must be determined by law and order, or otherwise could have any

9
legal effect whasoever (post, pp. 1253D- for the time being in force in any
1254B). country mentioned in subsection (3) of
Texas v. White (1868) 7 Wallace 700, 733 (76 this section is a citizen of that country
U.S.); Hanauer v. Woodruff (1872) 15 shall by virtue of that citizenship have
Wallace 439, 449 (82 U.S.) and Horn v. the status of a British subject."
Lockhart (1873) 17 Wallace 570, 580 (84 Subsection (3) mentions eight countries to
U.S.) considered. which full independence had already been
granted and also Southern Rhodesia. It has
Per Lord Reid at 247-248 never been suggested that it can be inferred
from this that Southern Rhodesia must be
“If The Queen in the Parliament of the United regarded as fully independent. So on any view
Kingdom was Sovereign in Southern the association of Southern Rhodesia with
Rhodesia in 1965, there can be no doubt that those other countries was anomalous. Their
the Southern Rhodesia Act, 1965, and the Lordships cannot infer from the mere fact that
Order in Council made under it were of full Southern Rhodesian citizenship was created
legal effect there. Several of the learned that some limited but undefined measure of
judges have held that sovereignty was divided sovereignty was conferred on that colony.
between the United Kingdom and Southern
Rhodesia. Their Lordships cannot agree. So The learned judges refer to the statement of
far as they are aware it has never been the United Kingdom Government in 1961,
doubted that, when a colony is acquired or already quoted, setting out the convention that
annexed, following on conquest or settlement, the Parliament of the United Kingdom does
the sovereignty of the United Kingdom not legislate without the consent of the
Parliament extends to that colony, and its Government of Southern Rhodesia on matters
powers over that colony are the same as its within the competence of the Legislative
powers in the United Kingdom. So, in 1923, Assembly. That was a very important
full sovereignty over the annexed territory of convention but it had no legal effect in
Southern Rhodesia was acquired. That limiting the legal power of Parliament.
sovereignty was not diminished by the limited
grant of self government which was then It is often said that it would be
made. It was necessary to pass the Statute of unconstitutional for the United Kingdom
Westminster, 1931, in order to confer Parliament to do certain things, meaning that
independence and sovereignty on the six the moral, political and other reasons against
Dominions therein mentioned, but Southern doing them are so strong that most people
Rhodesia was not included. Section 4 of that would regard it as highly improper if
Act provides Parliament did these things. But that does not
"No Act of Parliament of the United mean that it is beyond the power of
Kingdom passed after the Parliament to do such things. If Parliament
commencement of this Act shall extend, chose to do any of them the courts could not
or be deemed to extend, to a Dominion hold the Act of Parliament invalid. It may be
as part of the law of that Dominion, that it would have been thought, before 1965,
unless it is expressly declared in that that it would be unconstitutional to disregard
Act that that Dominion has requested, this convention. But it may also be that the
and consented to, the enactment unilateral Declaration of Independence
thereof." released the United Kingdom from any
obligation to observe the convention. Their
No similar provision has been enacted with Lordships in declaring the law are not
regard to Southern Rhodesia. concerned with these matters. They are only
concerned with the legal powers of
It has been argued that the British Nationality Parliament.”
Act, 1948, shows that Southern Rhodesia had
by that time acquired at least a measure of
sovereignty. Section 1 (1) provides that The Demise of Parliamentary Sovereignty in
"Every person who under this Act is a the Caribbean
citizen of the United Kingdom and
Colonies or who under any enactment

10
Jaundoo v. The Attorney General of Guyana fundamental right, an application to the court to
(1968) 12 W.I.R. 221 have the legislation declared invalid as a breach
of art 10 (2)(a) is appropriate; in the second
Per Stoby, C at pg 226: illustration an appeal is the proper course.

“Before the advent of a written constitution the In the majority of emergent territories the
legislature of colonial British Guiana was framers of their respective constitutions placed
supreme; true, its supremacy was not absolute in great emphasis on the provisions contained
the sense in which the United Kingdom therein for the protection of fundamental
Parliament is absolute. A colonial government’s freedoms. Despite the insertion of articles
legislation was subject to the supervision of the protecting fundamental rights very little litigation
Secretary of State who could withhold his assent has resulted therefrom, at least in the Caribbean.”
if the proposed law infringed certain canons of
justice or policy. But within the limits of these Bahamas District of the Methodist Church v
restrictions the legislature could introduce laws Symonette (2000) 5 LRC 196
which were severe or even revolutionary.
Colonial politicians accustomed through reading See Worksheet 1
and association to the moderation of English
politicians, and Guyanese lawyers trained in Compare with:
England and engrained in the common law of
England which had spread its roots throughout Westco Logan Ltd v AG (2001) NZLR 46
the British Commonwealth, recognised the
greatness of a system which protected the In 1986 an agreement known as the West Coast
democratic rights of peoples. No attempt was Accord (the accord) was entered into by the
ever made to alter or restrict the fundamental Crown and a number of other parties. In terms of
principles of British jurisprudence. Even when the accord the Crown provided a perpetual
Roman-Dutch law was the common law of supply of rimu for sawmilling on a sustainable
Guyana judges trained in British institutions basis. The Crown called for tenders for available
were engrafting and introducing bit by bit the rimu and the plaintiff was successful, becoming
canons of English common law. the leading West Coast rimu sawmiller and
… processor. In 1999 the government announced a
When internal self-government was introduced, proposal to terminate rimu logging. It introduced
and when independence was achieved, all those the Forests (West Coast Accord) Bill [*2]  2000
safeguards which had protected colonial peoples which provided for the cancellation of the accord
from oppression were engrafted into the and any remaining Crown obligations thereunder
Constitution and called fundamental rights. By and contained a clause which provided that ''no
inserting them into the Constitution the result compensation [would be] payable by the Crown
which flowed was that Parliament became to any person''. Even though it was not a party to
subject to the Constitution. It was supreme and the accord, the plaintiff claimed it derived title
yet not supreme, Parliament can alter the and status from being a member of the West
Constitution in the manner prescribed by the Coast Timber Association (the association)
Constitution, but until it is altered no legislation which represented sawmillers and processors and
can be enacted which infringes a fundamental was one of the named parties. The plaintiff
right. Returning to the illustration already given, further claimed that the accord created property
should Parliament legislate to provide that in all rights in its favour.
criminal trials an accused is presumed to be
guilty, the courts can strike down this legislation The plaintiff applied for an interim injunction
as being ultra vires the Constitution. Where, restraining the Clerk of the House of
however, Parliament has enacted no such Representatives from presenting the Bill for
legislation, and a judge or magistrate conducts a assent by the Governor-General if it was passed
criminal trial on the assumption that an accused by the House with a non-compensation clause,
is presumed guilty, it is not the State which has on the grounds first, that the accord was a
infringed a fundamental right, but the contract creating property rights and that the
functionary concerned who has ignored the Crown's actions amounted to anticipatory breach
common law of the land. In the first illustration, of that contract; secondly, that seizure without
where the State has legislated to override a compensation was a breach of Magna Carta; and

11
thirdly, that such seizure was a breach of the a purported [*67]  Act if mandatory
New Zealand Bill of Rights Act 1990, ss 21, requirements as to manner and form of an
27(1) and 27(3). The Attorney-General and the enactment have not been observed. It could be in
Clerk applied for orders striking out the the public interest to move earlier. To that extent,
plaintiff's substantive [*3]  claim as disclosing I recognise the Trethowan v Peden line of cases.
no reasonable cause of action, principally on the I see no useful distinction between non-
basis that the relief sought was precluded by compliance with formal constitutional statutes,
parliamentary privilege. and non-compliance with the more common or
garden variety. It is the Court's role to enforce
Held: law in either case. Obviously, such a situation
would be extreme, and unlikely to occur. The
1 Provided that Parliament proceeded according jurisdiction hopefully will remain theoretical.
to mandatory law governing the process for
enacting legislation (''manner and form''), [94]  When I turn to attacks on Bills on account
Parliament was sovereign and could pass any of content, as opposed to the manner and form of
legislation it saw fit. In particular, Parliament enactment, the position is quite different.
could enact laws expropriating property without
compensation. There was no supreme law in [95]  First, in principle, provided Parliament
New Zealand inhibiting such powers. The Courts proceeds according to mandatory law governing
could not strike down such legislative changes the procedure for enacting legislation (''manner
once made, subject to the possibility of extreme and form''), Parliament is sovereign and can pass
circumstances, which should be left open in any legislation it sees fit. In particular,
perpetuity (see paras [91], [92], [95]). Parliament can enact laws expropriating property
without compensation. In doing so, it can step
Observation: right through existing laws and rights,
obliterating remedies which otherwise would
The Court has jurisdiction to determine whether exist. The Courts, providing Parliament proceeds
there has been compliance with any mandatory according to law in the way described, cannot
manner and form requirements and can grant stop Parliament [*68]  making such legislative
relief in cases of non-compliance with manner changes. It cannot strike down such legislative
and form requirements as to passage of changes once made (subject to the possible
legislation at some point before enactment. Such extreme reservation mentioned). There is no
requirements go to process and not content (see supreme law in New Zealand which inhibits
para [93]). those powers. In particular, Parliament can pass
laws which are directly contrary to provisions of
Trethowan v Peden (1930) 31 SR NSW 183; 48 the BOR. Section 3, referring to the legislative
WN (NSW) 36, Attorney-General for the State branch, does not enact otherwise. The safeguard,
of New South Wales v Trethowan (1931) 44 following upon decision to not enact the BOR as
CLR 394; [1931] ALR 101 at pp 425[thinsp]- supreme law, is provision for Attorney-General
[thinsp]426 / 109 and Rediffusion (Hong Kong) to give s 7 notification to the House. The House
Ltd v Attorney-General of Hong Kong [1970] must know this is occurring, and give proper
AC 1136; [1970] 2 WLR 1264 (PC) considered. consideration to proposed legislation in that
Pages 62 – 63 light. It is not for the unelected Courts to
frustrate that legislative ability. If content of
[93]  While the point does not arise directly in legislation offends, the remedies are political and
this case, which is not a ''manner and form'' case ultimately electoral. The fact those alternatives
but is a ''content'' case, I see no reason why the seem monumentally difficult, indeed unreal, to
Court could not intervene in cases of non- particular persons, or to those espousing
compliance with mandatory manner and form unpopular causes, is no more than a dark side of
requirements as to passage of legislation at some democracy.
suitable point before enactment. The likely point
would be between third reading and assent, if Page 63
only because by that stage fullest and last
opportunities for the House to observe However, the Courts have not restricted the
mandatory procedures would have ended. There matter to art 9. As Pickin's case and succeeding
is no logical reason to wait for the royal assent to authority demonstrate, there is a wider principle

12
in play. Its essence is that the Courts should not principles as, in their opinion, shall most
interfere so as to frustrate the powers of the conduce to their own happiness is the basis on
House to enact legislation. Whether it is a matter which the whole American fabric has been
of jurisdiction or practice, and I prefer the latter, erected. The exercise of this original right is a
there is a constitutional boundary to observe. very great exertion; nor can it nor ought it to be
Sometimes this principle is called ''comity'' as it frequently repeated. The principles, therefore, so
reflects a reciprocal principle that Parliament established are deemed fundamental. And as the
should not intervene in the conduct of the Courts authority from which they proceed, is supreme,
in relation [*70]  to particular cases. The and can seldom act, they are designed to be
boundaries involved in non-interference in the permanent.
conduct of Parliament are not determined on any
fixed basis or by some bright line. The decision This original and supreme will organizes the
is a matter of judgment and common-sense. government and assigns to different departments
Boundaries may evolve and modify as times and their respective powers. It may either stop here
circumstances dictate, as long as the underlying or establish certain limits not to be transcended
principle is kept in mind. by those departments.

[99]  As a reflection of that principle, present The Government of the United States is of the
practice is against interference with the latter description. The powers of the Legislature
introduction of legislation into the House. It most are defined and limited; and that those limits
certainly interferes with the content of legislation may not be mistaken or forgotten, the
which the House may pass if the Court prevents Constitution is written. To what purpose are
introduction of a necessary Bill. powers limited, and to what purpose is that
limitation committed to writing, if these limits
[100]  I see no logical distinction between may at any time be passed by those intended to
introduction (the beginning) and assent (the end). be restrained? The distinction between a
If it interferes with content to prevent government with limited and unlimited powers is
introduction, it interferes at least equally to abolished if those limits do not confine the
prevent introduced (and debated) content persons on whom they are imposed, and if acts
becoming statute law. There is something prohibited [5 U.S. 177] and acts allowed are of
distinctly odd in the proposition the Court cannot equal obligation. It is a proposition too plain to
interfere with the course of debate and legislative be contested that the Constitution controls any
decisions taking place within powers; but can legislative act repugnant to it, or that the
then totally frustrate the outcome. Legislature may alter the Constitution by an
ordinary act.
[101]  I am satisfied the Court, in line with long-
standing principles and practice, should not Between these alternatives there is no middle
intervene to grant relief sought in this case.   ground. The Constitution is either a superior,
paramount law, unchangeable by ordinary
means, or it is on a level with ordinary legislative
The Supremacy of the Constitution acts, and, like other acts, is alterable when the
legislature shall please to alter it.
Marbury v. Madison 5 U.S. 137
If the former part of the alternative be true, then
Per Marshall J., at pgs. 176 - 180 a legislative act contrary to the Constitution is
not law; if the latter part be true, then written
“The question whether an act repugnant to the Constitutions are absurd attempts on the part of
Constitution can become the law of the land is a the people to limit a power in its own nature
question deeply interesting to the United States, illimitable.
but, happily, not of an intricacy proportioned to
its interest. It seems only necessary to recognise Certainly all those who have framed written
certain principles, supposed to have been long Constitutions contemplate them as forming the
and well established, to decide it. fundamental and paramount law of the nation,
and consequently the theory of every such
That the people have an original right to government must be that an act of the
establish for their future government such Legislature repugnant to the Constitution is void.

13
 would be giving to the Legislature a practical
This theory is essentially attached to a written and real omnipotence with the same breath
Constitution, and is consequently to be which professes to restrict their powers within
considered by this Court as one of the narrow limits. It is prescribing limits, and
fundamental principles of our society. It is not, declaring that those limits may be passed at
therefore, to be lost sight of in the further pleasure.
consideration of this subject.
That it thus reduces to nothing what we have
If an act of the Legislature repugnant to the deemed the greatest improvement on political
Constitution is void, does it, notwithstanding its institutions -- a written Constitution, would of
invalidity, bind the Courts and oblige them to itself be sufficient, in America where written
give it effect? Or, in other words, though it be Constitutions have been viewed with so much
not law, does it constitute a rule as operative as if reverence, for rejecting the construction. But the
it was a law? This would be to overthrow in fact peculiar expressions of the Constitution of the
what was established in theory, and would seem, United States furnish additional arguments in
at first view, an absurdity too gross to be insisted favour of its rejection.
on. It shall, however, receive a more attentive
consideration. The judicial power of the United States is
It is emphatically the province and duty of the extended to all cases arising under the
Judicial Department to say what the law is. Constitution. [5 U.S. 179]
Those who apply the rule to particular cases
must, of necessity, expound and interpret that Could it be the intention of those who gave this
rule. If two laws conflict with each other, the power to say that, in using it, the Constitution
Courts must decide on the operation of each. [5 should not be looked into? That a case arising
U.S. 178] under the Constitution should be decided without
examining the instrument under which it arises?
So, if a law be in opposition to the Constitution,
if both the law and the Constitution apply to a This is too extravagant to be maintained.
particular case, so that the Court must either
decide that case conformably to the law, In some cases then, the Constitution must be
disregarding the Constitution, or conformably to looked into by the judges. And if they can open
the Constitution, disregarding the law, the Court it at all, what part of it are they forbidden to read
must determine which of these conflicting rules or to obey?
governs the case. This is of the very essence of
judicial duty. There are many other parts of the Constitution
which serve to illustrate this subject.
If, then, the Courts are to regard the Constitution,
and the Constitution is superior to any ordinary It is declared that "no tax or duty shall be laid on
act of the Legislature, the Constitution, and not articles exported from any State." Suppose a
such ordinary act, must govern the case to which duty on the export of cotton, of tobacco, or of
they both apply. flour, and a suit instituted to recover it. Ought
judgment to be rendered in such a case? ought
Those, then, who controvert the principle that the the judges to close their eyes on the Constitution,
Constitution is to be considered in court as a and only see the law?
paramount law are reduced to the necessity of
maintaining that courts must close their eyes on The Constitution declares that "no bill of
the Constitution, and see only the law. attainder or ex post facto law shall be passed."

This doctrine would subvert the very foundation If, however, such a bill should be passed and a
of all written Constitutions. It would declare that person should be prosecuted under it, must the
an act which, according to the principles and Court condemn to death those victims whom the
theory of our government, is entirely void, is yet, Constitution endeavours to preserve?
in practice, completely obligatory. It would
declare that, if the Legislature shall do what is "No person," says the Constitution, "shall be
expressly forbidden, such act, notwithstanding convicted of treason unless on the testimony of
the express prohibition, is in reality effectual. It

14
two witnesses to the same overt act, or on Thus, the particular phraseology of the
confession in open court." Constitution of the United States confirms and
strengthens the principle, supposed to be
Here. the language of the Constitution is essential to all written Constitutions, that a law
addressed especially to the Courts. It prescribes, repugnant to the Constitution is void, and that
directly for them, a rule of evidence not to be courts, as well as other departments, are bound
departed from. If the Legislature should change by that instrument.”
that rule, and declare one witness, or a
confession out of court, sufficient for conviction, Amax Potash Ltd v Government of
must the constitutional principle yield to the Saskatchewan (1977) 71 DLR (3d.) 1, 10-12
legislative act?
“A State, it is said, is sovereign and it is not for
From these and many other selections which the Courts to pass upon the policy or wisdom of
might be made, it is apparent that the framers of legislative will. As a broad statement of
the Constitution [5 U.S. 180] contemplated that principle that is undoubtedly correct, but the
instrument as a rule for the government of general principle must yield to the requisites of
courts, as well as of the Legislature. the constitution in a federal State. By it the
bounds of sovereignty are defined and
Why otherwise does it direct the judges to take supremacy circumscribed. The Courts will not
an oath to support it? This oath certainly applies question the wisdom of enactments which, by the
in an especial manner to their conduct in their terms of the Canadian Constitution, are within
official character. How immoral to impose it on the competence of the Legislatures, but it is the
them if they were to be used as the instruments, high duty of this Court to insure that the
and the knowing instruments, for violating what Legislatures do not transgress the limits of their
they swear to support! constitutional mandate and engage in the illegal
exercises of power. Both Saskatchewan and
The oath of office, too, imposed by the Alberta inform the Court that justice and equity
Legislature, is completely demonstrative of the are irrelevant in this case. If injustice results, it
legislative opinion on this subject. It is in these is the electorate which must administer a rebuke,
words: and not the Courts. The two Provinces
apparently find nothing inconsistent or repellent
I do solemnly swear that I will administer justice in the contention that a subject can be barred
without respect to persons, and do equal right to from recovery of sums paid to the Crown under
the poor and to the rich; and that I will faithfully protest, in response to the compulsion of the
and impartially discharge all the duties legislation later found to be ultra vires.
incumbent on me as according to the best of my
abilities and understanding, agreeably to the Section 5(7) of the Proceedings Against the
Constitution and laws of the United States. Crown Act, in my opinion, has much broader
implications than mere Crown immunity. In the
Why does a judge swear to discharge his duties present context, it directly concerns the right to
agreeably to the Constitution of the United States tax. It affects, therefore, the division of powers
if that Constitution forms no rule for his under the British North America Act, 1867. It
government? if it is closed upon him and cannot also brings into question the right of a Province,
be inspected by him? or the federal Parliament for that matter, to act in
violation of the Canadian Constitution. Since it
If such be the real state of things, this is worse is manifest that if either the federal Parliament or
than solemn mockery. To prescribe or to take a provincial Legislature can tax beyond the limit
this oath becomes equally a crime. of its powers, and by prior or ex post facto
legislation give itself immunity from such illegal
It is also not entirely unworthy of observation act, it could readily place itself in the same
that, in declaring what shall be the supreme law position as if the act had been done within proper
of the land, the Constitution itself is first constitutional limits. To allow moneys collected
mentioned, and not the laws of the United States under compulsion, pursuant to an ultra vires
generally, but those only which shall be made in statute, to be retained would be tantamount to
pursuance of the Constitution, have that rank. allowing the provincial Legislature to do

15
indirectly what it could not do directly, and by Held: (i) that s 2 of the Constitution of Trinidad
covert means to impose illegal burdens. and Tobago is an enactment limiting the power
of Parliament and is not a rule of construction;
The principle governing this appeal can be
shortly and simply expressed in these terms: if a (ii) that the Supreme Court is the guardian of the
statute is found to be ultra vires the Legislature Constitution; consequently it is not only within
which enacted it, legislation which would have its competence but also its right and duty to
the effect of attaching legal consequences to acts make binding declarations, if and whenever
done pursuant to that invalid law must equally be warranted, that an enactment passed by
ultra vires because it relates to the same subject- Parliament is ultra vires and therefore void;
matter as that which was involved in the prior
legislation. If a State cannot take by (iii) that the right of free collective bargaining
unconstitutional means it cannot retain by and the right to strike are not included in the
unconstitutional means. The same thought found fundamental freedom of association recognised
expression in the headnote to the Antil case, and declared by s 1 (j) of the Constitution and
supra, in these words: are consequently not protected as such under the
provisions of ss 2 and 6 of the Constitution;
…the immunity accorded by that Act (the
Barring Act of 1954) to the unlawful exactions (iv) that orders of prohibition mandamus or
was as offensive to the Constitution as the injunction may issue to prohibit or direct the
unlawful exactions themselves… Industrial Court or its members in respect of
proceedings before it prior to the giving or
Constitutional restrictions on Parliamentary making of its judgment, order or award;
sovereignty
(v) that “cruel” in relation to treatment or
Collymore and Abraham v. The Attorney punishment prohibited by s 2 (b) of the
General (1967) 12 W.I.R. 5 Constitution means not merely severe or harsh
but means inhumane and inflictive of human
The appellants, being members of the Oilfield suffering.
Workers Trade Union unsuccessfully moved the
High Court to declare as ultra vires the Industrial
Stabilisation Act 1965, which is declared in its Per WOODING CJ. at pg 8-9:
preamble to be an act to provide, inter alia, for
the compulsory recognition by employers of “Section 36 of the Constitution provides that
trade unions and organisations representative of “subject to the provisions of this Constitution,
a majority of workers and for the establishment Parliament may make laws for the peace, order
of an expeditious system for the settlement of and good government of Trinidad and Tobago”.
trade disputes. By s 34 a worker is prohibited In my judgment, the section means what it says.
from taking part in a strike in connection with And what it says, and says very clearly, is that
any trade dispute unless the Minister of Labour the power and authority of Parliament to make
fails to refer the dispute to the Industrial Court. laws are subject to its provisions. Parliament
may therefore be sovereign within the limits
The appellants in their motion alleged that apart thereby set, but if and whenever it should seek to
from being otherwise repugnant to the make any law such as the Constitution forbids it
Constitution, certain provisions of the Act will be acting ultra vires. The Constitution also
abrogated, abridged or infringed the right of free makes express provision in and by its s 6 for the
collective bargaining and the right to strike enforcement of the prohibitions prescribed by its
which it was contended are common law rights Chapter I. The chapter, hereafter referred to as
and are accordingly encompassed in the such, comprises the first eight sections of the
fundamental freedom of association which is Constitution and deals with “The Recognition
specifically recognised and declared in s 1 (j) of and Protection of Human Rights and
the Constitution and is protected by s 2. Fundamental Freedoms”. And it is under the
facility of s 6 that the appellants have claimed
and are in my opinion entitled to the right to
proceed.

16
 that an enactment passed by Parliament is ultra
The appellants moved for an order declaring that vires and therefore void and of no effect because
the Industrial Stabilisation Act 1965, to which I it abrogates, abridges or infringes or authorises
shall hereafter refer as the Act, is ultra vires the the abrogation, abridgment or infringement of
Constitution and is therefore null and void and of one or more of the rights and freedoms
no effect. In the main, they founded their claim recognised and declared by s 1 of the chapter. I
for relief on the ground that the Act falls within so hold.”
the mischief against which s 2 of the chapter
provides. That section prescribes that, subject to Per Phillips J.A. at pgs. 21-22:
ss 3, 4 and 5 none of which comes into question
here, “However, whatever may be the true
interpretation to be placed upon the requirement
‘no law shall abrogate, abridge or infringe or of s 2 of the Canadian Bill of Rights that laws to
authorise the abrogation, abridgment or which it is applicable shall be “so construed and
infringement of any of the rights and freedoms applied” as not to derogate from the
hereinbefore recognised and declared and in constitutional guarantees to which it refers, it
particular no Act of Parliament shall’ seems to me that the imperative provisions of s 2
of the Constitution are so clear and explicit as
authorise, effect, impose or deprive in any of the not to admit of the possibility of their being
respects enumerated and set forth in a number of construed otherwise than as rendering invalid
paragraphs lettered (a) to (h). In the course of any law which offends against the prohibitions
his submissions the Attorney-General expressed therein contained. When once this proposition is
the view that this section is not an act of accepted, it appears to me to be obvious that
limitation but rather a rule of construction. I even without express provision a power of
disagree profoundly. He would have us regard judicial review of Parliamentary legislation must
the section as having the same effect as s 2 of the reside in the Supreme Court of this country.
Canadian Bill of Rights which was enacted in This conclusion is only in consonance with the
1960 and which is known and accepted to be the view expressed more than half a century ago by
source of the chapter. But that section reads as Griffith CJ, Barton and O’Connor JJ of the High
follows: Court of Australia in Baxter v Commissioners of
Taxation (NSW) ((1907), 4 CLR 1087.)((1907), 4
‘Every law of Canada shall, unless it is expressly CLR 1087, at p 1125) that:
declared by an Act of the Parliament of Canada
that it shall operate notwithstanding the ‘English jurisprudence has always recognized
Canadian Bill of Rights, be so construed and that the Acts of a legislature of limited
applied as not to abrogate, abridge or infringe or jurisdiction (whether the limits be as to territory
to authorise the abrogation, abridgment or or subject matter) may be examined by any
infringement of any of the rights or freedoms tribunal before whom the point is properly
herein recognised and declared, and in particular, raised. The term ‘unconstitutional’, used in this
no law of Canada shall be construed or applied connection, means no more than ultra vires.’
so as to’
Actually, however, the position is put beyond
authorise, impose or deprive as in the said doubt by the express terms of s 6 of the
section expressly provided. Manifestly, the Constitution which are as follows:
Canadian enactment is fundamentally different.
It is not entrenched as a part of a constitution but ‘6. (1) For the removal of doubts it is hereby
is merely enacted as a statute of Parliament. declared that if any person alleges that any of the
Much more to the point, it is in terms provisions of the foregoing sections or s 7 of this
interpretative and not prohibitive. . In my Constitution has been, is being, or is likely to be
opinion, the change from the language of the contravened in relation to him, then without
source was deliberate and purposive. I am prejudice to any other action with respect to the
accordingly in no doubt that our Supreme Court same matter which is lawfully available, that
has been constituted, and is, the guardian of the person may apply to the High Court for redress.
Constitution, so it is not only within its
competence but also its right and duty to make (2) The High Court shall have original
binding declarations, if and whenever warranted, jurisdiction–

17
(a) to hear and determine any application made “Deferring for the moment the question whether
by any person in pursuance of sub-s (1) of this the right to strike is a legal or other right I now
section; and consider the three other submissions made by the
(b) to determine any question arising in the case Attorney-General. The first point is that the
of any person which is referred to it in pursuance doctrine of ultra vires is not applicable to the
of sub-s (3) thereof, instant case. Having regard to the provisions of s
6 of the Constitution it is difficult to understand
and may make such orders, issue such writs and this submission. By that section any person may
give such directions as it may consider apply to the High Court for relief against the
appropriate for the purpose of enforcing, or operation of any law which may offend against
securing the enforcement of, any of the the provisions of s 2 of the Constitution. There
provisions of the said foregoing sections or s 7 to is no doubt in my mind about this and the
the protection of which the person concerned is conjoint effect of ss 2 and 6 of the Constitution is
entitled…… to confer upon the High Court the function of
judicial review over such legislative measures as
This is the section which has been invoked by may be taken in contravention of the expressed
the appellants in this case, and for the reasons provisions of ss 4 and 5 of the Constitution. No
indicated, I have no hesitation in rejecting any question of the sovereignty of Parliament arises
submission to the effect that either the High here. It is simply a matter of obeying the
Court or the Court of Appeal is not vested with Constitution. No one, not even Parliament, can
full jurisdiction to make a declaration as to the disobey the Constitution with impunity.
validity of any law alleged to contravene the Parliament can amend the Constitution only if
constitutional guarantees stipulated by Cap 1 of the constitutional prescriptions are observed and
the Constitution. providing Parliament fulfills the requirements of
the Constitution its power is sovereign and
The resulting legal position, therefore, is that the supreme. But if Parliament fails or neglects to
legislative powers of the Parliament of Trinidad do so and thereby contravenes the expressed
and Tobago, although a sovereign independent provisions of the Constitution any person who
state,“as in the case of all countries with written alleges that he has been, or that he is, or that he
constitutions, must be exercised in accordance is likely to be prejudiced by such contravention
with the terms of the constitution from which the may seek recourse to the High Court and pray its
power derives”. (See per Lord Pearce, relief.
delivering the judgment of the Judicial
Committee of the Privy Council in Liyanage v R There is clear authority for this view. I refer to
([1966] 1 All ER 60,[1967] 1 AC 259),([1966] 1 the case of Bribery Comr v Ramasinghe ([1964]
All ER 60, at p 67). This power of judicial 2 All ER 785,[1965] AC 172,[1964] 2 WLR
review is only one of various features which are 1301, 108 Sol Jo 441, 27 MLR 705, 235 LT 311,
to be found 22 in the Constitutions of many PC) in which the Privy Council held that a
countries of the Commonwealth. See Professor legislature has no power to ignore the conditions
de Smith’s The New Commonwealth and its of law-making that are imposed by the
Constitutions (1964), Cap 8, p 77, where the instrument which itself regulates its power to
learned author makes the following statement: make law; so that where, as in that case, the
Constitution required the Speaker’s certificate as
‘Among the characteristic features of modern a necessary part of the legislative process a Bill
Commonwealth Constitutions are the limitation which did not comply with that provision was
of parliamentary sovereignty, guarantees of invalid and ultra vires even though it received
fundamental human rights, judicial review of the the Royal Assent. Lord Pearce in his judgment
constitutionality of legislation.... The aim of said ([1965] AC 172, at p 194):
many of these provisions is to capture the spirit
and practice of British institutions; the methods ‘... The Court has a duty to see that the
of approach involve the rejection of British Constitution is not infringed and to preserve it
devices and the imposition of un-British fetters inviolate.... The English authorities have taken
on legislative and executive discretion.’ a narrow view of the Court’s power to look
behind an authentic copy of the Act. But in the
Per Fraser J.A. at pg 35-36: Constitution of the United Kingdom there is no

18
governing instrument which prescribed the law than two-thirds of the whole number of members
making powers and the forms which are essential of the House (including those not present). Every
to those powers. There was therefore never such certificate of the Speaker ... shall be conclusive
a necessity as arises in the present case for the for all purposes and shall not be questioned in
Court to take any close cognisance of the process any court of law."
of law-making.’
Per Lord Pearce at pgs 1309 to 1311:
Later in the judgment at p 196 he posed the
following question: “There remains the point which is the real
substance of this appeal. When a sovereign
‘When a sovereign Parliament has purported to Parliament has purported to enact a bill and it has
enact a bill and it has received the Royal Assent, received the Royal Assent, is it a valid Act in the
is it a valid Act in the course of whose passing course of whose passing there was a procedural
there was a procedural defect, or is it an invalid defect, or is it an invalid Act which Parliament
Act which Parliament had no power to pass in had no power to pass in that manner?
that manner?’
The strongest argument in favour of the
That question was answered at p 197 in this way: appellant's contention is the fact that section 29
(3) expressly makes void any act passed in
‘...a legislature has no power to ignore the respect of the matters entrenched on and
conditions of law-making that are imposed by prohibited by section 29 (2), whereas section 29
the instrument which itself regulates its power to (4) makes no such provision, but merely couches
make law ... the proposition ... is not acceptable the prohibition in procedural terms.
that a legislature, once established, has some-
inherent power derived from the mere fact of its The appellant's argument placed much reliance
establishment to make a valid law by the on the opinion of this Board in McCawley v. The
resolution of a bare majority which its own King.6 Just as in that case the legislature of the
constituent instrument has said shall not be a then Colony of Queensland was held to have
valid law unless made by a different type of power by a mere majority vote to pass an Act
majority or by a different legislative process.’ that was inconsistent with the provisions of the
existing Constitution of the Colony as to the
This opinion confirms my own and on this point tenure of judicial office, so, it was said, the
the case of Liyanage and Others v R ([1966] 1 legislature of Ceylon had no less a power to
All ER 60,[1967] 1 AC 259) is also of depart from the requirements of a section such as
considerable interest.” section 55 of the Order in Council,
notwithstanding the wording of section 18 and
section 29 (4). Their Lordships are satisfied that
Bribery Commissioner v. Ranasinghe [1964] 2 the attempted analogy between the two cases is
W.L.R. 1301 delusive and that McCawley's case,6 so far as it is
material, is in fact opposed to the appellant's
By section 29 of the Ceylon (Constitution) Order reasoning. In view of the importance of the
in Council, 1946: matter it is desirable to deal with this argument
in some detail.
"(1) Subject to the provisions of this Order,
Parliament shall have power to make laws for the In 1859 Queensland had been granted a
peace, order and good government of the Constitution in the terms of an Order in Council
Island. ... (4) In the exercise of its powers under made on June 6 of that year under powers
this section, Parliament may amend or repeal any derived by Her Majesty from the Imperial
of the provisions of this Order ... in its Statute, 18 & 19 Vict. c. 54. The Order in
application to the Island: Provided that no Bill Council had set up a legislature for the territory,
for the amendment or repeal of any of the consisting of the Queen, a Legislative Council
provisions of this Order shall be presented for and a Legislative Assembly, and the law-making
the Royal Assent unless it has endorsed on it a power was vested in Her Majesty acting with the
certificate under the hand of the Speaker that the advice and consent of the Council and Assembly.
number of votes cast in favour thereof in the Any laws could be made for the "peace, welfare
House of Representatives amounted to not less and good government of the Colony," the phrase

19
habitually employed to denote the plenitude of conditions of law-making that are imposed by
sovereign legislative power, even though that the instrument which itself regulates its power to
power be confined to certain subjects or within make law. This restriction exists independently
certain reservations. The Constitution thus of the question whether the legislature is
established placed no restrictions on the manner sovereign, as is the legislature of Ceylon, or
in which or the extent to which the law-making whether the Constitution is "uncontrolled," as the
power could be exercised, either generally or for Board held the Constitution of Queensland to be.
particular purposes, except for the provisions Such a Constitution can, indeed, be altered or
then customary as to reservation and amended by the legislature, if the regulating
disallowance of bills and a special provision as instrument so provides and if the terms of those
to the reservation of any bill which proposed the provisions are complied with: and the alteration
introduction of the elective principle into the or amendment may include the change or
make-up of the Legislative Council. Subject to abolition of those very provisions. But the
this the legislature was expressly given full proposition which is not acceptable is that a
power and authority to alter or repeal the legislature, once established, has some inherent
provisions of the Order in Council "in the same power derived from the mere fact of its
manner as any other laws for the good establishment to make a valid law by the
government of the Colony." resolution of a bare majority which its own
constituent instrument has said shall not be a
The legislature exercised this power in 1867 and valid law unless made by a different type of
passed what was called the Constitution Act of majority or by a different legislative process.
that year. By section 2 of the Act the legislative And this is the proposition which is in reality
body, again the Queen acting with the advice and involved in the argument.
consent of the Council and Assembly, was given
or declared to have power to make laws for the It is possible now to state summarily what is the
peace, welfare and good government of the essential difference between the McCawley case9
Colony in all cases whatsoever. The only express and this case. There the legislature, having full
restriction on this comprehensive power was power to make laws by a majority, except upon
contained in a later section, section 9, which one subject that was not in question, passed a
required a two-thirds majority of the Council and law which conflicted with one of the existing
of the Assembly as a condition precedent to the terms of its Constitution Act. It was held that this
validity of legislation altering the constitution of was valid legislation, since it must be treated as
the Council. As to this Lord Birkenhead L.C., pro tanto an alteration of the Constitution, which
delivering the Board's opinion, remarked7 was neither fundamental in the sense of being
beyond change nor so constructed as to require
"We observe, therefore, the Legislature in this any special legislative process to pass upon the
isolated instance carefully selecting one special topic dealt with. In the present case, on the other
and individual case in which limitations are hand, the legislature has purported to pass a law
imposed upon the power of the Parliament of which, being in conflict with section 55 of the
Queensland to express and carry out its purpose Order in Council, must be treated, if it is to be
in the ordinary way, by a bare majority." valid, as an implied alteration of the
Constitutional provisions about the appointment
This observation was coupled with the summary of judicial officers. Since such alterations, even
statement,8 if express, can only be made by laws which
comply with the special legislative procedure
"The Legislature of Queensland is the master of laid down in section 29 (4), the Ceylon
its own household, except in so far as its powers legislature has not got the general power to
have in special cases been restricted. No such legislate so as to amend its Constitution by
restriction has been established, and none in fact ordinary majority resolutions, such as the
exists, in such a case as is raised in the issues Queensland legislature was found to have under
now under appeal." section 2 of its Constitution Act, but is rather in
the position, for effecting such amendments, that
These passages show clearly that the Board in that legislature was held to be in by virtue of its
McCawley's case9 took the view, which section 9, namely, compelled to operate a special
commends itself to the Board in the present case, procedure in order to achieve the desired result.”
that a legislature has no power to ignore the

20
Per Lord Pearce at pgs 1312 to 1313: other person) may apply to the High Court for
redress.’
“The legislative power of the Ceylon Parliament
is derived from section 18 and section 29 of its The Constitution expressly confers upon the
Constitution. Section 18 expressly says "save as court the powers of judicial review. As regards
otherwise ordered in subsection (4) of section fundamental rights, the court has been described
29." Section 29 (1) is expressed to be "subject to as being in the role of a sentinel on the “qui
the provisions of this Order." And any power vive”. In determining the question of
under section 29 (4) is expressly subject to its constitutionality of a statute, what the court is
proviso. Therefore in the case of amendment and concerned with is the competence of the
repeal of the Constitution the Speaker's legislature to make it, and not its wisdom or
certificate is a necessary part of the legislative motives. The court has to examine its provisions
process and any bill which does not comply with in the light of the relevant provisions of the
the condition precedent of the proviso, is and Constitution. The presumption is always in
remains, even though it receives the Royal favour of the constitutionality of an enactment,
Assent, invalid and ultra vires. and the burden is upon him who attacks it to
show that there has been a clear transgression of
No question of sovereignty arises. A Parliament the constitutional principles.”
does not cease to be sovereign whenever its
component members fail to produce among
themselves a requisite majority, e.g., when in the Collymore and Abraham v. The Attorney
case of ordinary legislation the voting is evenly General (1967) 12 W.I.R. 5
divided or when in the case of legislation to
amend the Constitution there is only a bare Per Phillips J.A.at pgs 22-23, see supra.
majority if the Constitution requires something Per Fraser J.A. at pgs 35-36, see supra
more. The minority are entitled under the
Constitution of Ceylon to have no amendment of Olive Casey Jaundoo v. The Attorney General
it which is not passed by a two-thirds majority. of Trinidad and Tobago (1968) 12 W.I.R. 221
The limitation thus imposed on some lesser
majority of members does not limit the sovereign Per Cummings J.A. at pg. 251-254:
powers of Parliament itself which can always,
whenever it chooses, pass the amendment with “The language used describes the rights as
the requisite majority.” fundamental. What, then, is the nature of this
right called “fundamental right”? First of all, a
Power of judicial review expressly conferred legal right is one which is enforceable in the
on the Supreme Court courts of law. It is protected and enforced by the
ordinary law of the land. A fundamental right,
Attorney-General of St Christopher and Nevis however, is one which is expressly protected and
v. Lawrence (1983) W.I.R. 176 guaranteed by the written organic law of a state,
that is, the Constitution. It is termed
Per Sir Neville Peterkin C.J. at pgs. 179-180: “fundamental” because, unlike an ordinary right
which may be changed by the legislature in its
“The right of enforcement of protective ordinary powers of legislation, it cannot, because
provisions is contained in section 16 which reads it is guaranteed by the Constitution, be altered by
in part: any process other than that required for
amending the Constitution itself. Nor can it be
‘If any person alleges that any of the provisions suspended or abridged except in the manner laid
of sections 2 to 15 (inclusive) of this down in the Constitution itself.
Constitution has been, is being or is likely to be The existence of such a guarantee precludes any
contravened in relation to him (or, in the case of organ of the State–executive, legislative, or
a person who is detained, if any other person judicial–from acting in contravention of such
alleges such a contravention in relation to the rights, and any purported State act which is
detained person), then, without prejudice to any repugnant to them must be void. The
other action with respect to the same matter Constitution being the supreme organic law of
which is lawfully available, that person (or that the land, the powers of all the organs of
government are limited by its provisions.

21
There could be no justification for such a ‘Acts of Parliament are laws of the land and we
classification of these rights if they can be do not sit as a Court of Appeal from
overridden by the legislature and so become Parliament.... If any act of Parliament has been
ineffective. In order to vest them with reality obtained improperly, it is for the legislature to
and meaning, there must then be some authority correct it by repealing it, but so long as it exists
under the Constitution empowered to pronounce as law the courts are bound to obey it.’
a law or other State act invalid where it
contravenes or violates any of them directly or And in Liversidge v Anderson ([1941] 3 All ER
indirectly; and to make effective without delay, 338,[1942] AC 206, 110 LJKB 724, 116 LT 1,
orders for the prevention of their violation or 58 TLR 35, 85 Sol Jo 439 HL), Lord Wright said
immediate restoration where they have been in his speech in the House of Lords:([1942] AC
actually violated. In my view, that authority, 206, at p 260):
under the Constitution of the USA, India, and
Guyana, is the court. Without an authority so ‘All the courts today, and not least this House,
empowered, the declarations and protective are as jealous as they have ever been in
provisions under reference would be “like unto a upholding the liberty of the subject. But that
tale told by an idiot, full of sound and fury liberty is a liberty confined and controlled by
signifying nothing”–brutum fulmen. It is really law.... It is in Burke’s words a regulated
the enforceability of the constitutional guarantee freedom...’
that gives life and meaning to the right.
Professor Dicey’s comment that the prerogative And again at p 261 (ibid):
writs “are for practical purposes worth a hundred
constitutional articles guaranteeing individual ‘But in the constitution of this country there are
liberty” is indeed germane to the topic. no guaranteed or absolute rights. The safeguard
Consequently, the extraordinary nature of the of British liberty is in the good sense of the
right must be paramount in the process of the people and in the system of representative and
construction of art 19 which deals with the responsible government which has evolved.’
nature of the remedy intended.
It was therefore the sagacity of Parliament itself,
While it is true that prior to the coming into force at the back of which lies what is often called the
of the Constitution of Guyana, the courts in political genius of the English people–that which
Guyana, like those in England, had full power to enables them to hold the “just balance between
protect the individual against executive tyranny power and liberty” which protected individual
through the prerogative writs of mandamus, liberty against the inroads of the omnipotent
certiorari, prohibition, and quo warranto–as Parliament. In Guyana (then British Guiana) the
Lord Atkin succinctly put it in delivering the legislature had since 1928 power to make laws
opinion of the Judicial Committee of the Privy for the “peace, order, and good government of
Council in Eshugbayi Eleko v Nigerian Govt the Colony”, but His Majesty expressly reserved
(Administering Officer) ([1928] AC 459,[1931] to himself and his heirs and successors “their
LJR 152, 97 LJPC 97, 139 LT 527, 44 TLR 632) undoubted right and authority to confirm,
([1931] LJR 152, at p 157): disallow or with the advice of his or their Privy
Council to revoke or amend any such laws, and
‘...No member of the Executive can interfere to make, enact and establish, from time to time
with the liberty or property of a British subject with the advice of his or their Privy Council, all
except on the condition that he can support the such laws as may to him or them appear
legality of his action before a court of justice...’ necessary for the peace, order, and good
government of the Colony”. This had the effect
they were powerless against legislative of safeguarding against legislative inroads upon
aggression upon individual rights. In short, there the freedom of the individual contrary to the
were no fundamental rights binding on concepts known to and accepted by the British
Parliament. Parliament. In other, words, it was an indirect
projection of that ability to hold the “just balance
In Lee v Bude Co ((1870), LR 6 CP 576, 24 LT between power and liberty” into the colonial
827, 19 WR 954), Willes J, stated the law as legislature.
follows:((1870), LR 6 CP 576, at p 582):

22
Although the British Guiana (Constitution)
Order in Council 1953 purported to confer a And Mr Justce Jackson said in Board of
form of self-government on the territory, the Education v Barrette ((1943), 319 US 624):
same royal reservations and powers of
disallowance were therein preserved. These ‘The very purpose of a Bill of Rights was to
were further preserved by virtue of the withdraw certain subjects from the vicissitudes
provisions of the British Guiana (Constitution) of political controversy, to place them beyond
(Temporary Provisions) Orders in Council 1953 the reach of majorities ... and to establish them as
and 1965. legal principles to be applied by the courts.
One’s right to life, liberty, and property, to free
In legislating for a fully self-governing territory, speech, a free press, freedom of worship and
however, Parliament enacted through the assembly, and other fundamental rights may not
machinery of Her Majesty’s Order-in-Council, be submitted to the vote; they depend on the
styled the Guyana Independence Order 1966, the outcome of no elections.’
Constitution of Guyana, which by art 72
conferred upon the Parliament of Guyana power, In Fletcher v Peck ((1810), 6 Cr 87), the court
subject to the provisions of the Constitution, to observed that:
make laws for the peace, order, and good
government of Guyana; and abrogated Her ‘It is not to be disguised that the framers of the
majesty’s powers of reservation, revocation, and Constitution viewed, with some apprehension,
disallowance of the enactments of the Guyana the violent acts which might grow out of the
Parliament, substituting therefore the assent of feelings of the moment, and that the people of
the Governor-General on behalf of Her Majesty. the United States in adopting that instrument,
This assent, however, was to be in accord with have manifested a determination to shield
the advice of the Cabinet or a minister acting themselves and their property from the effects of
under the general authority of the Cabinet. Thus, those sudden and strong passions to which men
with the coming into force of the constitution of are exposed.’
Guyana, the British “political sagacity” to which
Lord Wright referred, would no longer project The British Parliament, even if not actually
upon the enactments of the Parliament of aware of these American judicial
Guyana. pronouncements, must be deemed to have been,
and in any event must also be presumed to have
appreciated the state of the existing law in
Such, then, was the state of the law with regard Guyana and the consequent necessity for the
to individual rights in Guyana upon the avoidance of the possibility of a despotism. In
attainment of Independence. other words, the mischief and defect for which
the existing law would not have provided after
History has revealed only too well the danger of the withdrawal of the reserved powers was a
unlimited power over individual rights and realistic safeguard for the avoidance of
liberties. legislative inroads on the freedom of the
individual.
In the American case of Citizens’ Savings &
Loan Association v Topeka ((1874), 20 Wall “What,” then,“was the remedy the Parliament
655), Mr Justice Miller said ((1874), 20 Wall had resolved and appointed to cure this disease
655, at p 662): of the commonwealth?” In this case it was to
prevent, not to cure.
‘It must be conceded that there are such rights in On 10 December 1948, the General Assembly of
every free government beyond the control of the the United Nations adopted the Universal
State. A government which recognised no such Declaration of Human Rights and proclaimed it
rights, which held the lives, the liberty and the as
property of its citizens subject at all times to the
absolute disposition and unlimited control of ‘a common standard of achievement for all
even the most democratic depository of power is peoples and all nations, to the end that every
after all but a despotism. It is true it is a individual and every organ of society, keeping
despotism of the majority if you choose to call it this Declaration constantly in mind, shall strive
so, but it is none the less despotism.’ by teaching and education to promote respect for

23
these rights and freedoms and by progressive Assembly it shall not be necessary to submit the
measures, national and international, to secure Bill to the vote of the electors.’
their universal and effective recognition and
observance, both among the peoples of Member Nor should it be forgotten that the Constitution
States themselves and among the peoples of in its final form had received the consensus of
territories under their jurisdiction.’ the Government of Guyana before
promulgation.”
Then followed the articles which are faithfully
adumbrated mutatis mutandis in Chapter II of the Removing jurisdiction of Supreme Court by
Constitution of Guyana. It is not without ordinary legislation
significance that art 8 of the Declaration
provided that:
Hinds v R [1976] 2 W:R 366
‘Everyone has the right to an effective remedy
by the competent national tribunals for acts Per Lord Diplock at pgs 380-381
violating the fundamental rights granted him by
the Constitution or by law.’ “What the Attorney-General does not concede is
that Parliament is prohibited by Chapter VII
Great Britain was a signatory to this declaration. from transferring to a court composed of duly
appointed members of the lower judiciary
In Burns Philip & Co Ltd v Nelson & Robertson jurisdiction which, at the time the Constitution
Ltd ((1958), 1 Ltd Rep 342,(1957) CLY 3867), it came into force, was exercisable only by a court
was held by the High Court of Australia that composed of duly appointed members of the
where a particular enactment was ambiguous it higher judiciary. In support of his contention that
was permissible to refer to an international Parliament is entitled by an ordinary law to
convention. down-grade any part of the jurisdiction
previously exercisable by the Supreme Court he
Small wonder, then, that the remedy the British relies on section 97 of the Constitution which
Parliament resolved to avoid the possibility of provides as follows:
the disease was the enshrinement of a Bill of
Rights in the Constitution of Guyana, buttressed, "97. (1) There shall be a Supreme Court for
as it is, by an enforcement provision which is Jamaica which shall have such jurisdiction and
itself relegated to the position of a fundamental powers as may be conferred upon it by the
right; for art 19, like the other articles in Cap II Constitution or any other law. ... (4) The
of the Constitution, is entrenched and cannot be Supreme Court shall be a superior court of
altered except in accordance with the provisions record and, save as otherwise provided by
of art 73 (3)(b) which provides as follows: Parliament, shall have all the powers of such a
court."
‘73. ...(3) A Bill to alter any of the following
provisions of this Constitution, that is to say– It is, in their Lordships' view, significant that
......................................... section 103 (1) and (5) which provide for the
(b) Chapter II ... shall not be submitted to the establishment of the Court of Appeal are in
Governor-General for his assent unless the Bill, identical terms with the substitution of the words
not less than two not more than six months after "Court of Appeal" for "Supreme Court."
its passage through the National Assembly, has,
in such manner as Parliament may prescribe, The only other provisions of the Constitution
been submitted to the vote of the electors which expressly confer jurisdiction upon the
qualified to vote in an election and has been Supreme Court or the Court of Appeal are (i)
approved by a majority of the electors who vote section 25 (2) and (3) which give them original
on the Bill: and appellate jurisdiction respectively to hear
Provided that if the Bill does not alter any of the and determine claims for redress for any
provisions mentioned in subparagraph (a) of this contravention of the provisions of Chapter III
paragraph and is supported at the final voting in relating to fundamental rights and freedoms, and
the Assembly by the votes of not less than two- (ii) section 44 (1) which gives to them original
thirds of all the elected members of the and appellate

24
jurisdiction respectively in disputes about are characteristic of a Supreme Court where
membership of either House of Parliament. appellate jurisdiction is vested in a separate court
are (1) unlimited original jurisdiction in all
The jurisdiction that was characteristic of judges substantial civil cases; (2) unlimited original
of a court to which the description of "a Supreme jurisdiction in all serious criminal offences; (3)
Court" was appropriate in a hierarchy of courts supervisory jurisdiction over the proceedings of
which included, in addition, inferor courts and "a inferior courts (viz. of the kind which owes its
Court of Appeal," was well known to the makers origin to the prerogative writs of certiorari,
of the Constitution in 1962. So was the mandamus and prohibition).
jurisdiction that was characteristic of judges of a
court to which the description of "a Court of That section 97 (1) of the Constitution was
Appeal" was appropriate. intended to preserve in Jamaica a Supreme Court
exercising this characteristic jurisdiction is, in
In their Lordships' view section 110 of the their Lordships' view, supported by the provision
Constitution makes it apparent that in providing in section 13 (1) of the Jamaica (Constitution)
in section 103 (1) that: "There shall be a Court of Order in Council 1962:
Appeal for Jamaica" the draftsman treated this
form of words as carrying with it by necessary "The Supreme Court in existence immediately
implication that the judges of the court required before the commencement of this Order shall be
to be established under section 103 should the Supreme Court for the purposes of the
exercise an appellate jurisdiction in all Constitution."
substantial civil cases and in all serious criminal
cases; and that the words that follow, viz. "which This is made an entrenched provision of the
shall have such jurisdiction and powers as may Constitution itself by section 21 (1) of the Order
be conferred upon it by this Constitution or any in Council, and confirms that the kind of court
other law," do not entitle Parliament by an referred to in the words "There shall be a
ordinary law to deprive the Court of Appeal of a Supreme Court for Jamaica" was a court which
significant part of such appellate jurisdiction or would exercise in Jamaica the three kinds of
to confer it upon judges who do not enjoy the jurisdiction characteristic of a Supreme Court
security of tenure which the Constitution that have been indicated above.
guarantees to judges of the Court of Appeal.
Section 110 (1) of the Constitution which grants If, as contended by the Attorney-General, the
to litigants wide rights of appeal to Her Majesty words italicised above in section 97 (1) entitled
in Council but only from "decisions of the Court Parliament by an ordinary law to strip the
of Appeal," clearly proceeds on this assumption Supreme Court of all jurisdiction in civil and
as to the effect of section 103. Section 110 would criminal cases other than that expressly
be rendered nugatory if its wide appellate conferred upon it by section 25 and section 44,
jurisdiction could be removed from the Court of what would be left would be a court of such
Appeal by an ordinary law without amendment limited jurisdiction that the label "Supreme
of the Constitution. Court" would be a false description. So too if all
its jurisdiction (with those two exceptions) were
Their Lordships see no reason why a similar exercisable concurrently by other courts
implication should not be drawn from the composed of members of the lower judiciary.
corresponding words of section 97. The Court of But more important, for this is the substance of
Appeal of Jamaica was a new court established the matter, the individual citizen could be
under the Judicature (Appellate Jurisdiction) deprived of the safeguard, which the makers of
Law 1962, which came into force one day before the Constitution regarded as necessary, of having
the Constitution, viz. on August 5, 1962. The important questions affecting his civil or
Supreme Court of Jamaica had existed under that criminal responsibilities determined by a court,
title since 1880. In the judges of that court there however named, composed of judges whose
had been vested all that jurisdiction in Jamaica independence from all local pressure by
which in their Lordships' view was characteristic Parliament or by the executive was guaranteed
of a court to which in 1962 the description "a by a security of tenure more absolute than that
Supreme Court" was appropriate in a hierarchy provided by the Constitution for judges of
of courts which was to include a separate "Court inferior courts.
of Appeal." The three kinds of jurisdiction that

25
Their Lordships therefore are unable to accept number of packages which had fallen from the
that the words in section 97 (1), upon which the aircraft were recovered and found to contain a
Attorney-General relies, entitle Parliament by an total of 389 pounds of cocaine. The defendants
ordinary law to vest in a new court composed of were convicted in the magistrate's court of
members of the lower judiciary a jurisdiction that offences under the Dangerous Drugs Act
forms a significant part of the unlimited civil, including possession of dangerous drugs with
criminal or supervisory jurisdiction that is intent to supply, contrary to section 22(1).
characteristic of a "Supreme Court" and was Pursuant to section 22(9) they were committed to
exercised by the Supreme Court of Jamaica at the Supreme Court for sentence. They appealed
the time when the Constitution came into force, to the Supreme Court against conviction on the
at any rate where such vesting is accompanied by ground, inter alia, that the provisions of section
ancillary provisions, such as those contained in 22 under which they had been convicted and
section 6 (1) of the Gun Court Act 1974, which remanded for sentence were unconstitutional and
would have the consequence that all cases falling void. The judge quashed their convictions,
within the jurisdiction of the new court would in holding that the magistrate had erred in failing to
practice be heard and determined by it instead of subpoena a witness as requested by the
by a court composed of judges of the Supreme defendants, and that section 22(8) in part and
Court.” subsections (9) to (11) were unconstitutional and
void but could be severed from the remainder of
Commissioner of Police v Davis [1993] 3 WLR section 22. He remitted the case for trial by
346 another magistrate directing him, in the event of
conviction, to pass sentence under, inter alia,
Article 20(1) of the Constitution of The Bahamas section 22(2)(b), and stated that a sentence of
provided that any person charged with a criminal five years' imprisonment was the limit of a
offence should be afforded a fair hearing within magistrate's lawful sentencing power under the
a reasonable time by an independent and Act. On appeal by the Commissioner of Police
impartial court established by law, and by article and by the defendants the Court of Appeal of
20(2)(g) a person charged on information in the The Bahamas affirmed the judge's decision save
Supreme Court had the right to trial by jury. that they held that the whole of section 22(8) was
Chapter VII related to the judicature and article void, and they declined to specify the maximum
93(1) provided for the establishment of a term of imprisonment which a magistrate could
Supreme Court. Although there was no express impose under the Act, while agreeing that it was
reference in the Constitution to magistrates' not exceeded by the imposition of a term of five
courts, such courts existed and had for many years.
years exercised jurisdiction in relation to drugs
offences. Any person summarily convicted of On the commissioner's appeal to the Judicial
possession of a dangerous drug with intent to Committee and the defendants' cross-appeal: -
supply, contrary to section 22(1) of the Held, dismissing the appeal and the cross-
Dangerous Drugs Act, was liable on summary appeal, (1) that although the imposition by
conviction for a first offence to a fine not magistrates' courts of a substantial fine or a term
exceeeding $100,000 and a sentence of of five years' imprisonment on summary
imprisonment of not less than one year but not conviction for an offence under the Dangerous
exceeding five years. Section 2 of the Dangerous Drugs Act was not inconsistent with the
Drugs (Amendment) Act 1988 added subsections Constitution, section 22(8) contravened the
(8) to (11) to section 22.1 Under subsection (8) a Constitution by increasing to life imprisonment
person convicted of possession of more than two the maximum sentence on summary conviction
pounds of cocaine with intent to supply was of possession with intent to supply, since
liable to a maximum sentence of life jurisdiction to try offences for which such a
imprisonment, and by subsection (9) on penalty could be imposed, which was
summary conviction for such offence the appropriate to and exercisable by the Supreme
magistrate had to commit the convicted person Court, was thereby conferred on the magistrates'
for sentence to the Supreme Court, where the courts with the result that a defendant was
provisions of subsections (10) and (11) applied. deprived of the right to be tried by jury which he
would have had by virtue of article 20(2)(g) of
The defendants were arrested after a light aircraft the Constitution if charged on information in the
carrying them crashed in Bahamian waters. A Supreme Court; that the provisions in

26
subsections (9) to (11) requiring committal to the 22(4)(b) to life imprisonment, is unconstitutional
Supreme Court for sentence of persons liable to and void.”
life imprisonment did not prevent the
constitutional infringement occasioned by the The Parliamentary roll
summary procedure for trial of offences to which
section 22(8) applied since a defendant would be Akar v. Attorney General of Sierra Leonne
exposed to the risk of a life sentence without [1969] 3 W.L.R. 249
having had an opportunity to elect for jury trial
in the Supreme Court; but that section 22(8) of The Constitution of Sierra Leone, which came
the Dangerous Drugs Act did not contravene the into effect on April 27, 1961, provided by
Constitution in so far as it provided for sentences section 1 (1) that "every person who, having
of life imprisonment to be imposed upon been born in ... Sierra Leone, was on April 26,
conviction on information in the Supreme Court, 1961 a citizen of the United Kingdom and
and was severable to that extent; and that, Colonies or a British protected person shall
accordingly, subsection (8) in so far as it related become a citizen of Sierra Leone on April 27,
to summary convictions and subsections (9) to 1961." On March 17, 1962, section 1 (1) was
(11) of section 22 were unconstitutional and void amended by the Constitution (Amendment) (No.
. 2) Act, 1962, which inserted into section 1 (1)
after the words "every person" the words "of
(2) That magistrates' courts in The Bahamas negro African descent." This amendment was
were entitled to exercise the summary deemed to have come into operation on April 27,
jurisdiction of inferior courts and did not infringe 1961. The Constitution of Sierra Leone
the Constitution by so doing provided that they contained a declaration of the fundamental rights
did not exercise any jurisdiction which was and freedoms of the individual to which "every
characteristic of a Supreme Court . person in Sierra Leone" was entitled. Section 23
of the Constitution afforded protection, inter alia,
per Lord Goff, at pgs 855-856: from discrimination on the grounds of race and
provided that, subject to certain exceptions, "no
“However, in the opinion of their Lordships, the law shall make any provision which is
same infringement of constitutional rights may discriminatory"; subsection (4) (f) of section 23,
occur when, instead of the relevant jurisdiction however, excepted any law whereby persons
being transferred from the Supreme Court to the "might be subjected to any disability or
magistrates' courts, the penalties which the restriction ... which, having regard to its nature
magistrates' courts are empowered to impose in and to special circumstances pertaining to those
the case of offences within their jurisdiction are persons ... is reasonably justifiable in a
so increased as to confer upon the magistrates' democratic society."
courts jurisdiction which is appropriate only to a
Supreme Court. In such a case the principle in Section 43 of the Constitution provided that a
Hinds v. The Queen is as much infringed as in a bill to amend section 1 of the Constitution
case where the relevant jurisdiction is transferred required upon it the support of the votes of not
from the Supreme Court to the magistrates' less than two-thirds of all the members of the
courts. Here again, in the opinion of their House of Representatives. The endorsement by
Lordships, an enhancement of the magistrates' the clerk of the House on the amending Act of
jurisdiction in respect of penalties for possession 1962 recorded that the Bill was "passed" without
of dangerous drugs with intent to supply so as to any reference to its having been passed in
empower the magistrates' courts to impose a accordance with section 43.
sentence of life imprisonment would
undoubtedly be unconstitutional, and would have The appellant was born on May 20, 1927, in the
the effect also (in the case of the Constitution of former Protectorate of Sierra Leone, of an
The Bahamas) that defendants would lose the indigenous Sierra Leone mother and a Lebanese
benefit of the entrenched right to jury trial under father who had been born and bred in Senegal
article 20(2)(g). Prima facie, therefore, section and had lived in Sierra Leone for 56 years prior
22(8) of the D.D.A., in so far as, in the cases to to the commencement of these proceedings and,
which it applies, it enhances the maximum the appellant, accordingly, became a citizen of
sentence capable of being imposed on summary Sierra Leone on April 27, 1961. It was common
conviction under section 22(2)(b) and section ground that the appellant's father was not a

27
"negro" so that as a result of the amendment to proviso to section 43 (1) it was necessary that a
the Constitution the appellant was deprived of bill for an Act to amend section 23 should have
his citizenship. been passed by the House of Representatives in
The appellant claimed a declaration that the two successive sessions there having been a
Constitution (Amendment) (No. 2) Act, 1962, dissolution between the first and the second of
was ultra vires the Constitution of Sierra Leone them. The printed endorsement on Act No. 39
on the grounds: (a) that as the endorsement of (over the name of the acting clerk of the House
the Amendment of the Constitution merely of Representatives) is in these terms: "Passed in
recorded that the bill was "passed" it should be the House of Representatives for the second time
inferred that it was passed in an ordinary and not and in accordance with the provisions of
in the special manner laid down by section 43; subsections (1) and (3) of section 43 of the
and (b) that the amendment of section 1 (1) of Constitution this 3rd day of August in the year of
the Constitution was discriminatory within Our Lord one thousand nine hundred and sixty-
section 23 of the Constitution and was not two." There appears to be no statutory
reasonably justifiable in a democratic society requirement that an endorsement should be in
within section 23 (4) (f). The Supreme Court of any particular form (though there are
Sierra Leone granted the declaration sought but requirements in regard to authentication and
the Court of Appeal reversed that decision. On assent and date of operation (see Act No. 63 of
appeal to the Judicial Committee it was conceded 1961)), but it will be seen that an endorsement
that the adoption of the word "negro" involved a could, according as would be appropriate, record
description by race:- (a) that a bill had been passed or (b) (if the
Constitution was being altered) passed with the
Held, allowing the appeal (Lord Guest necessary voting support or (c) (if the sections or
dissenting), (1) that the new added qualification provisions referred to in the proviso to section 43
was essentially a racial one, that the "special (1) were being altered) passed for a second time
circumstances" pertaining to the appellant within and in accordance with the provisions of
the meaning of section 23 (4) (f) would have to subsections (1) and (3). It was argued that,
be additional to the difference of race, that the because the endorsement on Act No. 12 merely
circumstances pertaining to the appellant were records that the bill was "passed," it should be
no different on January 17, 1962, from the inferred that it was passed in an ordinary manner
circumstances pertaining on April 27, 1961, and and not in the special manner under subsection
that therefore the amendment of the Constitution (3)) of having the support of the votes of not less
offended against the letter and flouted the spirit than two-thirds of all the members of the House.
of the Constitution and was invalid. Their Lordships do not think it right to draw any
such inference. There is no reason to suppose
(2) That there was no basis for any suggestion that there was any irregularity. It is recorded by
that the bill amending the Constitution was not the Clerk of the House of Representatives that
properly passed or for supposing that a the bill was passed. There is no basis for any
procedural requirement was forgotten or ignored. suggestion that the bill was not properly passed
or for supposing that a procedural requirement
Per Lord Morris of Borth-y-Gest at pgs 978-979: was forgotten or ignored.”

“In regard to Act No. 12, a point was taken that Edingburgh & Dalkeith Ry v Wauchope
it had not been "passed" in accordance with the (1842) 8 C & F 710, at 724-725, see Part I
provisions of the Constitution in that it had not
been supported by the votes of two-thirds or Ellen Street Estates v Minister of Health
more of all the members. It was argued that the (1934) 1 K.B. 590, at 595-597, see part I
endorsement of the Clerk of the House of
Representatives on Act No. 12 was merely that Kariapper v. Wijesinha [1967] 3 W.L.R. 1460
the bill had been passed and that it did not record
that the bill had been passed in accordance with In 1960 a commission of inquiry constituted
the provisions of subsection (3) of section 43. under section 2 of the Commissions of Inquiry
Comparison was made with the endorsement on Act, reported that allegations of bribery had been
Act 39. That is an act which is designed to proved against some members of the Senate,
amend section 23 of the Constitution. As section House of Representatives or State Council of
23 is one of the sections referred to in the Ceylon, of whom the appellant was one. The

28
appellant was elected to Parliament for five years repeal or amendment, did not declare guilt or
in March 1965. The bill for the Imposition of impose punishment, its terms showed that
Civic Disabilities (Special Provisions) Act, No. reference to reports not forming part of the Act
14 of 1965 ("the Act"), when presented for the was or might be necessary in its application, did
Royal Assent, had endorsed on it a certificate not speak like a court order, and, although its
under the hand of the Speaker in accordance with operation was made to depend on past events, it
the proviso to section 29 (4) of the Constitution was prospective in imposing disabilities from the
of Ceylon. The Act came into operation on date of its commencement for the periods
November 16, 1965; was not in form an express defined.
amendment of the Constitution; imposed civic (3) That the intention of a statute was to be
disabilities, some for seven years, on persons to gathered from its operation, and, as a general
whom the Act applied, viz., persons, including rule, an inconsistent law amended; that, since the
the appellant, named in a schedule to the Act in constitution of Ceylon was a controlled
regard to whom the commission of inquiry report constitution and the Act was an inconsistent law,
found allegations of bribery proved; provided by the Act was to be regarded as amending the
section 7 for the vacation on November 15, constitution unless some provision denying the
1965, of the seat as a Member of Parliament of, Act constitutional effect was to be found in the
inter alios, the appellant on a ground not to be constitutional restrictions imposed on the power
found in the Constitution before the Act came of amendment; that, apart from the proviso of
into force; and provided by section 10 that, in the section 29 (4), there was no reason for not
event of inconsistency with existing law, the Act construing the words "amend or repeal" in
should prevail. section 29 (4) as extending to amendment or
repeal by inconsistent law; and that a bill, which
The appellant, asserting his continued when passed became an amending Act, fell
membership of Parliament, applied to the within the description "bill for the amendment or
Supreme Court for a mandate in the nature of a repeal" of the constitution within the proviso. So
writ of mandamus requiring clerks of the House that, accordingly, the Act amended the
of Representatives to recognise him and pay him constitution, and the appeal should be dismissed.
his remuneration and allowances as a Member of
Parliament. The appellant contended that the Act Per Sir Douglas Menzies at pgs. 1471-1475:
was invalid in that it was inconsistent with the
Constitution and was not an effective “The bill for the Act when presented for the
amendment, on the grounds, inter alia, that it was Royal Assent did have endorsed upon it the
an Act of Attainder or Bill of Pains and certificate of the Speaker required by the proviso
Penalties, and was a usurpation of judicial power to section 29 (4) and that certificate was in
not an exercise of legislative power. The accordance with the actual voting in the House.
Supreme Court refused the application. On The critical question is, therefore, whether
appeal, there being no controversy that the something more was required to bring the Act
constitution committed judicial power to the within the power of Parliament conferred by
courts to the exclusion of Parliament:- section 29 (1) and (4). Counsel for the appellant
argued that there was and that the Act, being
Held, (1) that the Act was not an Act of inconsistent with the constitution as it stood, was
Attainder or a Bill of Pains and Penalties, invalid for the reason that it was not in form an
because it contained no declaration of guilt, and express amendment of the constitution.
the disabilities imposed did not have the
character of punishment for guilt, but were to As long ago as 1920 the judicial committee in
keep public life clean for the public good, and McCawley v. The King20 decided that an
not for the punishment of the member whose seat uncontrolled Constitution could like any other
was vacated. Act of Parliament be altered simply by the
enactment of inconsistent legislation. Their
(2) That the Act was an exercise of legislative Lordships' statement of the proposition which
power and not the usurpation of judicial power, was rejected was as follows21:
for the Act purported to change the law,
provided in terms that in the event of "The constitution of Queensland is a controlled
inconsistency with the existing law the Act constitution. It cannot, therefore, be altered
should prevail (post, p. 1470D), was subject to merely by enacting legislation inconsistent with

29
its articles. It can only be altered by an Act constitution was controlled. These controversies
which in plain and unmistakable language refers became extremely grave, and were reflected in
to it; asserts the intention of the Legislature to an opinion, cited in the course of the argument
alter it; and consequently gives effect to that and given in 1864 by the law officers of the day,
intention by its operative provisions." Sir Roundell Palmer and Sir Robert Collier.
These distinguished lawers were of opinion, and
The reason for the rejection of this proposition the Board concurs in their view, that when
was thus stated22: legislation within the British Empire which is
inconsistent with constitutional instruments of
"The Legislature of Queensland is the master of the kind under consideration comes for
its own household, except in so far as its powers examination before the Courts, it is unnecessary
have in special cases been restricted. No such to consider whether those who were responsible
restriction has been established, and none in fact for the later Act intended to repeal or modify the
exists in such a case as is raised in the issues earlier Act. If they passed legislation which was
now under appeal" The power of the Parliament inconsistent with the earlier Act, it must be
of Ceylon to amend or repeal the provisions of presumed that they were aware of, and
the constitution is restricted in the manner authorised such inconsistency." _
provided by section 29. There is, therefore, a
most material distinction between the Although this passage has no bearing upon the
Constitution of Ceylon and that of Queensland ultimate question here, i.e., whether the manner
which is made apparent by the following and form required by section 29 for a
citations from the judgment of Lord Birkenhead constitutional amendment were actually
L.C. His Lordship said23: observed, it has an important bearing upon the
question to which a good deal of argument was
"The first point which requires consideration addressed, namely, whether an inconsistent law
depends upon the distinction between should be regarded as an amendment of a
constitutions the terms of which may be controlled constitution in the absence of an
modified or repealed with no other formality expressed intention to amend. The expression of
than is necessary in the case of other legislation, opinion of the law officers concurred with by the
and constitutions which can only be altered with board is that, as a general rule, an inconsistent
some special formality, and in some cases by a law amends.
specially convened assembly. ...
Many different terms have been employed in the This is, of course, but an instance of the
text-books to distinguish these two contrasted fundamental principle that it is from its operation
forms of constitution. Their special qualities may that the intention of a statute is to be gathered.
perhaps be exhibited as clearly by calling the one As the law officers said in the opinion already
a controlled and the other an uncontrolled referred to26:
constitution as by any other nomenclature."
"'If the colonial Registration Act was ultra vires
Nevertheless, notwithstanding the distinction of the Legislature of South Australia, it can only
that renders the decision in McCawley's case24 be so on the ground that it altered the electoral
inapplicable here their Lordships do rely upon a law contained in the Constitutional Act, No. 2 of
passage from the judgment of the Lord 1855. Assuming this to have been its effect, we
Chancellor.25 It is as follows: cannot accede to the argument, which seems to
have found acceptance with two South
"... Narrow constructions were placed by Australian Judges, that it was not passed "with
colonial judges upon the instruments creating the object" of altering the Constitution of the
constitutions in colonial Legislatures. Causes of Legislature. It must be presumed that a
friction multiplied, and soon a conflict emerged, legislative body intends that which is the
analogous to that which is the subject of necessary effect of its enactments; the object, the
discussion to-day, between those who insisted purpose and the intention of the enactment, is the
that the constitutions conceded to the colonies same; it need not be expressed in any recital or
could be modified as easily as any other Act of preamble; and it is not (as we conceive)
Parliament, and those who affirmed that the competent for any Court judicially to ascribe any
statute defining such constitutions was part of the legal operation of a Statute to
'fundamental' or 'organic' and that therefore the inadvertence.'"

30
 subsection (1) extends to amending or repealing
In the Bribery Commissioner v. Ranasinghe27 the "any of the provisions of this order." The
Judicial Committee had occasion to consider exercise of this power is however restricted by
McCawley's case28 with reference to the the proviso. As has already been explained, their
Constitution of Ceylon and explained the Lordships do read the words "amend or repeal"
essential difference between McCawley's case28 in the earlier part of section 29 (4) as covering an
and the case then under consideration. Lord amendment or repeal by inconsistent enactment.
Pearce giving the judgment of the board said29: Indeed were these words "amend or repeal" not
to be regarded as covering an alteration by
"It is possible now to state summarily what is the implication it might be that a law effecting such
essential difference between the McCawley an alteration could be enacted under section 29
case30 and this case. There the legislature, having (1) without any restriction arising from
full power to make laws by a majority, except subsection (4). Their Lordships however do not
upon one subject that was not in question, passed so read the statutory provisions and have to
a law which conflicted with one of the existing doubt that the Parliament of Ceylon has not
terms of its Constitution Act. It was held that this uncontrolled power to pass laws inconsistent
was valid legislation, since it must be treated as with the Constitution. Apart from the proviso to
pro tanto an alteration of the Constitution, which subsection (4) therefore the board has found no
was neither fundamental in the sense of being reason for not construing the words "amend or
beyond change nor so constructed as to require repeal" in the earlier part of section 29 (4) as
any special legislative process to pass upon the extending to amendment or repeal by
topic dealt with. In the present case, on the other inconsistent law. Attention was, however
hand, the legislature had purported to pass a law directed to the words in the proviso "bill for the
which, being in conflict with section 55 of the amendment or repeal" and it was argued that
Order in Council, must be treated, if it is to be only a bill which provided expressly for the
valid, as an implied alteration of the amendment or repeal of some provision of the
Constitutional provisions about the appointment order would fall within these words. Their
of judicial officers. Since such alterations, even Lordships would find it difficult to restrict the
if express, can only be made by laws which plain words of the earlier part of the subsection
comply with the special legislative procedure by reference to an ambiguity in the proviso, if
laid down in section 29 (4), the Ceylon one were to be found, but they find no ambiguity
legislature has not got the general power to and they reject the limitation which it has been
legislate so as to amend its Constitution by sought to introduce into the proviso. A bill
ordinary majority resolutions, such as the which, if it becomes an Act, does amend or
Queensland legislature was found to have under repeal some provision of the order is a bill "for
section 2 of its Constitution Act, but is rather in the amendment or repeal of a provision of the
the position, for effecting such amendments, that order." It would have been inexact to refer in the
that legislature was held to be in by virtue of its proviso to a bill to amend or repeal a provision
section 9, namely, compelled to operate a special of the order, but a bill which when passed
procedure in order to achieve the desired result." becomes an amending Act falls exactly within
the description under consideration. The bill
Accordingly, therefore, upon general principles which became the Act was a bill for the
and with the guidance of earlier authority their amendment of section 24 of the constitution
Lordships have come to the conclusions that the simply because its terms were inconsistent with
Act, inconsistent as it is with the Constitution of that section. It is the operation that the bill will
Ceylon, is to be regarded as amending that have upon becoming law which gives it its
Constitution unless there is to be found in the constitutional character not any particular label
constitutional restrictions imposed on the power which may be given to it. A bill described as one
of amendment some provision which denies it for the amendment of the Constitution which
constitutional effect. This brings the board to the contained no operative provision to amend the
actual terms of section 29 (1) and (4). Constitution would not require the prescribed
formalities tobecome a valid law whereas a bill
Section 29 (1) confers full legislative power which upon its passing into law would, if valid,
upon Parliament subject only "to the provisions alter the constitution would not be valid without
of this order," i.e., the constitution. Subsection compliance with those formalities. In his
(4) indicates that the power conferred by judgment in the supreme court Sansoni C.J.

31
quoted aptly from the judgment of Isaacs and Speaker. There is nothing to show that it was
Richards JJ. in McCawley's case30 - the minority passed by the necessary two-thirds majority. If
judgment in the high court approved by the Privy the presence of the certificate is conclusive in
Council - as follows31: favour of such a majority, there is force in the
argument that its absence is conclusive against
"The effect of the repealing Act must therefore such a majority. Moreover, where an Act
depend on what it does, and not on the label it involves a conflict with the Constitution, the
affixes to itself." certificate is a necessary part of the Act-making
process and its existence must be made apparent.
Their Lordships also agree with Silva J. when he
said The fact that the 1958 bill did not have a
certificate and was not passed by the necessary
"I do not think that when the proviso to section majority was not really disputed in the Supreme
29 (4) proceeded to set out the manner of Court or before their Lordships' Board, but it has
presentation of a constitutional amendment it been argued that the court, when faced with an
also intended to prescribe a particular form to be official copy of an Act of Parliament, cannot
present on the face of it." inquire into any procedural matter and cannot
now properly consider whether a certificate was
In the course of argument a good deal was made endorsed on the bill. That argument seems to
of the doubts and complexities that must follow their Lordships unsubstantial, and it was rightly
if the constitution can be amended by laws which rejected by the Supreme Court. Once it is shown
do not, as it were, show their colours, and the that an Act conflicts with a provision in the
point was forcibly emphasised by reference to Constitution, the certificate is an essential part of
the very law under consideration. The board is the legislative process. The court has a duty to
thoroughly aware of the difficulties that are see that the Constitution is not infringed and to
likely to result from altering the constitution preserve it inviolate. Unless, therefore, there is
except by laws which plainly and expressly some very cogent reason for doing so, the court
amend it with particularity. Considerations of must not decline to open its eyes to the truth.
this sort, powerful as they ought to be with the Their Lordships were informed by counsel that
draftsman, cannot in a court of law weigh against there were two duplicate original bills and that
the considerations which have brought the board after the Royal Assent was added one original
to its conclusions that a bill, which upon its was filed in the Registry where it was available
passage into law would amend the constitution, to the court. It was therefore easy for the court,
is a bill for its amendment. In association with without seeking to invade the mysteries of
the considerations to which reference has just parliamentary practice, to ascertain that the bill
been made attention was drawn to section 10 of was not endorsed with the Speaker's certificate.
the Act. This section is far from clear and their
Lordships have not felt able to base any The English authorities have taken a narrow
affirmative reasoning upon it. All that can be view of the court's power to look behind an
gathered from it is that Parliament was aware authentic copy of the Act. But in the Constitution
that the Act might be regarded as amending the of the United Kingdom there is no governing
Constitution in some particulars. The instrument which prescribes the law-making
introduction of such a provision does little to powers and the forms which are essential to
obviate the complexities to which legislation those powers. There was, therefore, never such a
such as the Act must inevitably give rise in the necessity as arises in the present case for the
future if and when it becomes necessary to set court to take any close cognisance of the process
out the constitution as amended.” of law-making. In Edinburgh Railway Co. v.
Wauchope,4 however, Lord Campbell said: "All
The Bribery Commissioner v. Pedrick that a court of justice can do is to look to the
Ranasinghe [1964] 2 W.L.R. 1301 Parliamentary roll." There seems no reason to
doubt that in early times, if such a point could
Per Lord Pearce at pgs 1307-1309: have arisen as arises in the present case, the court
would have taken the sensible step of inspecting
“The Bribery Amendment Act, 1958, contained the original.
no section similar to section 2 of the Act of
1954, nor did the bill bear a certificate of the

32
In the South African case of Harris v. Minister Dhanraj Singh v A.G. H.C.A. S-475 of 2001,
of the Interior,5 where a similar point arose, it December 4th 2001
appears that the court itself looked at the bill.
"The original," said Centlivres C.J., "which was Per Berreaux J.:
signed by the Governor-General and filed with
the Registrar of this Court bears the following “Legislative Validity of the Act
endorsement by the Speaker: 'certified correct as
passed by the joint sitting of both Houses of The Applicant contends in his grounds that the
Parliament' ..." Act is inconsistent with sections 4 and 5 of the
Constitution because it so states in its preamble
Moreover, the point on which Fernando J. relied and in order to have legislative validity it must
in the Supreme Court seems to their Lordships have been passed by both Houses of Parliament
unanswerable. When the Constitution lays down in accordance with section 13(2) of the
that the Speaker's certificate shall be conclusive Constitution; that the act was not passed in
for all purposes and shall not be questioned in accordance with section 13(2) because the final
any court of law, it is clearly intending that vote on the Act in the House of Representatives
courts of law shall look to the certificate but shall occurred on 24th April when the House agreed
look no further. The courts therefore have a duty with Senate amendments. No formal record was
to look for the certificate in order to ascertain kept as to the precise votes cast and no certificate
whether the Constitution has been validly has been provided by the Clerk of the House as
amended. Where the certificate is not apparent, to compliance on that day with the requirements
there is lacking an essential part of the process of section 13(2).
necessary for amendment.
Section 13 of Constitution provides:
The argument that by virtue of certain statutory
provisions the subsequent reprint of an Act can “13(1) An Act to which this
validate an invalid Act cannot be sound. If section applies may expressly
Parliament could not make a bill valid by declare that it shall have
purporting to enact it, it certainly could not do so effect even though
by reprinting it, however august the blessing that inconsistent with sections 4
it gives to the reprint.” and 5 and, if any such Act
does so declare, it shall have
effect accordingly unless, it
Prebble v Television New Zealand Limited shall have effect accordingly
[1994] 3 WLR 970 unless the Act is shown not to
be reasonably justifiable in a
Per Lord Browne-Wilkinson at pg 981 society that has a proper
respect for the rights and
“Since there can no longer be any objection to freedoms of the individual.
the production of Hansard, the Attorney-General
accepted (in their Lordships' view rightly) that 13(2) An Act to which this
there could be no objection to the use of Hansard section applies is one the Bill
to prove what was done and said in Parliament as for which has been passed by
a matter of history. Similarly, he accepted that both Houses of Parliament
the fact that a statute had been passed is and at the final vote thereon
admissible in court proceedings. Thus, in the in each House has been
present action, there cannot be any objection to it supported by the votes of not
being proved what the plaintiff or the Prime less than three-fifths of all
Minister said in the House (particulars 8.2.10 members of that House.”
and 8.2.14) or that the State-Owned Enterprises
Act 1986 was passed (particulars 8.4.1). It will Section 13(3) is not relevant to the issue here.
be for the trial judge to ensure that the proof of
these historical facts is not used to suggest that Section 6 of the Statutes Act Chap. 3:02
the words were improperly spoken or the statute provides:
passed to achieve an improper purpose.” “6(1) When the Constitution
for any purpose requires a

33
 Bill to be supported at the
final vote thereon by the votes R.L. Griffith
of a specific proportion of the Clerk of the Senate
members of a House of
Parliament, the Clerk of the Senate amendments were
House shall certify whether agreed to in the House of
any such Bill passed by the Representatives on Friday
House was at the final vote 24th April, 1987
supported by the votes of the
required proportion of J.E. Carter
members of the House. Clerk of the House

6(2) The certificate of the Mr. Newman submits that the final vote of the
Clerk duly signed shall be House of Representatives was on the 24th April,
conclusive evidence as to the 1987 and not 20th day of March, 1987 as certified
proportion of members by the Clerk of the House. It is convenient at
supporting the Bill at the final this juncture to refer to the affidavits of
vote.” Christophe Grant and Jacqueline Sampson, Clerk
of the House. At para. 4 she states that the third
On the last page of the Act it is stated that the stage is the final and decisive stage in the
Act was “passed in the House of Representatives legislative process. It is at this stage that
this 20th day of March, 1987” and it is signed by members decide whether the Bill should be
the Clerk of the House. Thereafter it is as passed into law and, where such a majority is
follows: required, a count is taken to certify that the
requisite majority has been obtained. She adds
“IT IS HEREBY that according to the practice in Parliament
CERTIFIED that this Act is “final” vote has come to mean “the third
one the Bill for which has reading” vote and not the “last” vote.
been passed by the House of
Representatives and at the After the Bill is passed on the third reading it is
final vote thereon in the sent to the Senate for its concurrence. Senate
House has been supported by amendments are thereafter submitted to the
the votes of not less than House for its consideration in the form of a
three-fifths of all the members motion which relates exclusively to the Senate
of the House that is to say by amendments. Each amendment is dealt with
the votes of thirty members of individually and an indication, by a collection of
the House. voices in favour, that the House agrees with each
amendment of the Senate is considered as
J.E. Carter sufficient proof of the House’s agreement. The
Clerk of the House Clerk’s certificate in accordance with section 6
Passed in the Senate this 7th of the Statues Act, is only inserted in relation to
day of April, 1987 the third reading and none is inserted in relation
to the acceptance by the House, of Senate’s
R.L. Griffith amendment to a specific clause or clauses. She
Clerk of the Senate states that the procedure is governed by Standing
Orders 58 and 59 of the Trinidad and Tobago
IT IS HEREBY CERTIFIED Standing Orders of the House of Representatives
that this Act is one the Bill for made by the Governor under the provisions of
which has been passed by the section 8 of the Trinidad and Tobago
Senate and at the final vote Constitution Order in Council, 1961 and by the
thereon in the Senate has established practice of the House of
been supported by the votes of Representatives.
not less than three-fifths of all
the members of the Senate Mr. Grant appends a copy of the official Report
that is to say by the votes of of Hansard dealing with the House’s agreement
twenty-eight Senators.

34
to Senate amendments. The amendments are of
an extremely minor nature. “The question is to be
answered by a determination
Mr. Gopaul Gosine, who has no experience in of what is the meaning of the
matters of Parliament, in his affidavit in reply phrase ‘final passage,’ used
purports to deny that it is a settled practice or in the Constitution.
procedure that Senate amendments sent to the
Houser for approval do not require a three-fifths We are of the opinion that the
majority in the House. The sole basis of that object of the makers of the
denial is his reference to Central Bank Act #2 of Constitution was to require
1986 which contains a certificate that it was the assent of such a
supported by twenty senators (sufficient for a constitutional majority to all
three-fifths majority). of the provisions of the act on
passage, not merely or
Those amendments were agreed to by the Houser necessarily the third passage.
of Representatives on 7th February, 1986, and The third passage of the bill
was supported by the votes of thirty members. under review by the Senate
was not its final passage,
Mr. Gopaul Gosine’s assertion is misplaced as it since it was amended to make
is evident on the fact of that Act that reference to it satisfactory to the House.
the Senate amendments and to the vote thereon At first the greater number of
was not a certification within the meaning of Senators registered their votes
section 6 of the Statute’s Act. against the bill as thus
amended. Was it then finally
Mr. Newman submitted that the word “final” has passed? If not, when it came
its ordinary meaning and it was sufficient to a second vote after
compliance with section 13(2) that the Senate reconsideration, that tested its
amendments were passed by a collection of final passage or failure to
voices in favour. It matters not how trivial the pass. This final vote,
amendments. He relied on a decision of the according to the mandate of
Supreme Court of Tennessee in Roane Iron Co. the Constitution, required the
v Francis 172 S.W. Deporter 816 on 1st January, constitution majority of 17 to
1915. The facts are taken from the headnote. make the measure a law.
The Constitution of Tennessee provided that no
bill shall become law until it shall have been read He added at page 817:
and on its final passage have received the assent
of a majority of all the members to which the “It is apparent that under a
house shall be entitled. caption broad enough to
admit of it, a bill might, under
An Act originating in the House was amended by the rule contended for by
the Senate and, as amended, was passed by a appellee, by radically
constitutional majority. The House refused to changed, made by amendment
concur in the amendment and the matter was after passage on its formal
referred to a conference committee. The Senate reading as essentially
first refused to adopt the conference report but different measure, and one
later on a motion to consider the action of the that a constitutional majority
committee was made the action of the Senate by could not be procured to vote
a vote of fifteen to fourteen. The Senate for in any event. It must, we
comprised thirty-three members making the thing be that a construction of
requisite majority seventeen. The Act was struck the constitutional provision
down as unconstitutional. It was held that the that would admit of such
final passage meant the actual final vote manipulation, resulting in its
necessary to a bill becoming law regardless of own easy subversion and
parliamentary functions. Williams J. who defeat, is not the better one.
delivered the judgment of the court said at pg. Board of Revenue v Crow,
816: 141 Ala. 126, 37 South. 469;

35
 Rogers v State, 72 Ark. 565, 1974 A.C. 765 Lord Morris of Borth-y-Gest at
82 S.W. 169; Glenn v Wray, pg. 790C said:
126 N.C. 730, 36 S.E. 167;
Cohn v Kingsley, 5 Idaho, “It must surely be for
441, 49 Pac. 985, 28 L.R.A. Parliament to lay down the
84; State v Brabrelle (Mo.) procedures which are to be
170 S.W. 465. followed before a Bill can
become an Act. It must be
We do not feel warranted, fore Parliament to decide
even in order to uphold whether its decreed
wholesome legislation, in procedures have in fact been
making by construction such followed. It must be for
a breach in a barrier that the Parliament to lay down and to
framers of our fundamental construe its Standing Orders
law have thus thrown around and further to decide whether
the enactment of statutes for they have been obeyed: it
the protection of minorities.” must be for Parliament to
decide whether in any
Mr. Newman relied on this passage. In my particular case to dispense
judgment the Applicant’s contention on this with compliance with such
ground must also fail. The Roane decision is orders. It must be for
distinguishable. There appears to have been a Parliament to decide whether
fundamental difference of opinion between both it is satisfied that an Act
Houses of Parliament. Secondly, the approval of should be passed in the form
the Senate at the final passage required a and with the wording set out
majority of seventeen which was not met. in the Act. It must be for
Finally, it is a decision of a State Supreme Court Parliament to decide what
and carries little weight. documentary material or
testimony it requires and the
Having regard to section 13(1) of the extent to which Parliamentary
Constitution it is sufficient for the validity of the privilege should attach. It
Act that it is expressly declared to have effect would be impracticable and
even though inconsistent with sections 4 and 5 of undesirable for the High
the Constitution. The certification of the Clerk Court of Justice to embark
of the House appears on its face stating that the upon an inquiry concerning
requisite three-fifths majority of all members of the effect or the effectiveness
each house was obtained at the final vote of the internal procedures in
thereon. Such a certification is conclusive the High Court of Parliament
evidence of the proportion of members or an inquiry whether in any
supporting the Bill at the final vote. It is also particular case those
conclusive of the fact that the vote in question procedures were effectively
was the final vote. Once the certification has followed.”
shown compliance with section 13(2), the Act is
effective for the purposes of section 13. Unless it is apparent from the certificate that the
requisite majority has not been obtained the court
The Clerk of the House however has deposed is bound to find for the validity of the Act.
that by established practice the “final” vote in the
House of Representatives is the vote taken at the
third reading of the bill, a fact with which Mr. Roane Iron Co. v Francis
Newman takes issue. It is well established that
the courts must defer to the practices and Mr. Justice Williams delivered the opinion of the
procedures adopted by Parliament in the Court.
enactment of legislation and for Parliament to
determine whether those procedures have been This is a suit to recover damages for personal
followed. In Pickin v British Railways Board injuries against appellant, Roane Iron Company.
The trial judge charged that the company was

36
liable to respond for the negligence of a gas boss refused to concur in the senate’s amendment.
on duty in its mines, basing his action on the The senate declined to recede and asked [***3]
provision of Acts 1907, ch. 540, scc. 8, which for a conference. Thereupon conferees were
provides that: appointed by the respective branches of the
legislature, and, and as a committee of
“Said gas boss is hereby … conference, the conferees agreed upon
declared to be the agent and amendments to the bill as it then stood, among
representative of the operator the amendments being the one quoted above.
or owner of the mine in the This we must treat ____ a material amendment,
discharge of the duties since, upon its being reported and adopted, the
required of said gas boss by house for the first time gave its assent to the
this act.” measure.
In behalf of the company this
is assigned as error, it being [*697] The senate, on the first test, refused to
contended that said act of 1907 make the conference committee report the action
was never constitutionally of that body by a vote of twelve ayes to fourteen
passed by the legislature, so nays, but on motion to reconsider, on which the
that under a previous act (Acts vote stood sixteen ayes to fourteen nays, it was
1903, ch. 237), as consumed again moved “to make the action of the
by this court, the mine operator committee on conference the action of the
is not liable for the acts or senate,” and the recorded vote, as evidenced by
negligence of such boss. the names of senators voting and by the
aggregate of the votes, stood fifteen ayes and
The ground of challenge is that the latter Act fourteen nays.
[***2] was not passed by a constitutional
majority. The constitution provides, in article 2, Did the bill on final passage receive the required
sec. 18: constitutional majority?

[*696] “No bill shall become a The question is to be answered by a

law un…. it shall have been determination of what is the meaning of the
read and passed, on three phrase “final passage,” used in the constitution.
different days in each house,
and shall have received, on its We are of opinion that the object of the makers
final passage in each house, of the constitution was to require the assent of
the assent of a majority of all such a constitutional [***4] majority to all of the
the members to which that provisions of the act on passage – not merely or
house shall be entitled under necessarily the third passage. The third passage,
this constitution.” since it was amended to make it satisfactory to
the housel. At first the greater number of
The senate of Tennessee is composed of thirty- senators registered their votes against the bill as
three members, and seventeen are, therefore the thus amended. Was it then finally passed? If
majority required for the final passage of any bill not, when it came to a second vote after
by the quoted provision. It is urged that the reconsideration, that tested its final passage or
journals of the senate and house affirmatively failure to pass. This final vote, according to the
show that the status in question received only mandate of the constitution, required the
fifteen votes when it was finally passed by the constitutional majority of seventeen to make the
senate. measure a law.

The bill was introduced as House Bill No. 693, [**817] If the contrary be true, and the senate
and the history of the bill in the stages of passage needed only to make the report of the conferees
as shown by the journals may be briefly outlined (with its amendment [*698] for the first time
as follows: After passing the house three in the sought to be imported into the measure) the
form in which it was introduced, the bill was action of the upper branch by a majority of a
transmitted by the senate, where on the third quorum, it is easily to be seen that the solemn
reading it was amended and passed as amended mandatory check of the constitution may be
by the constitutional majority, but the house subverted by a resort to a parliamentary trick.

37
The court of appeals of Kentucky, in Norman v construction such a breach in a barrier that the
Kentucky Board, etc., 93 Ky. 537, 20 S.W. 901, framers of out fundamental law have thus thrown
18 L.R.A., 566, said in reference to such around enactment of statutes for the protection of
contention, if granted: minorities.

“if so, then [***5] no matter Special Savings Law Clauses

how material the change, a
majority vote of a quorum may de Freitas v Benny [1975] 3 WLR 388
pass the bill. The words ‘final
passage,’ as used in our The appellant was convicted of murder in the
constitution, mean final Supreme Court of Trinidad and Tobago on
passage. They do not mean August 21, 1972, and sentenced to death. His
some passage before the final appeal against conviction was dismissed by the
one, but the last one. They do Court of Appeal on April 17, 1973, and a
not mean the passage of a part petition for special leave to appeal to the Judicial
of a bill, or what is first Committee of the Privy Council was dismissed
introduced, and which may, by on December 12, 1973. On December 20, 1973,
reason of amendment, become the appellant applied to the High Court for, inter
the least important. If so, then alia, a declaration that the carrying out of the
the body may pass what is death sentence would contravene his human
practically a new bill in a rights recognised under section 1 (a) and
manner counter to both the protected under section 2 (b) of the Trinidad and
letter and spirit of the Tobago (Constitution) Order in Council 19621.
constitution. When the bill The High Court dismissed the application on
was voted on in the senate as February 15, 1974, and its decision was affirmed
amended, and after its return by the Court of Appeal on April 30, 1974.
from the house, there never
was nay further action by the On appeal by the appellant to the Judicial
senate. It was the final vote, Committee: -
and therefore its final passage,
and being so, a majority vote Held, dismissing the appeal, (1) that the
of all the members elected, executive act of carrying out a death sentence
with an entry by yea and may pronounced by a court of law was authorised by
vote upon the journal, was laws that were in force at the commencement of
necessary to its constitutional the Constitution and the appellant was, therefore,
enactment.” debarred by section 3 of the Constitution from
asserting that it abrogated, abridged or infringed
It is apparent that, under a caption broad enough any of his rights or freedoms recognised and
to admit of it, a bill might, under the rule declared in section 1 or particularised in section
contended for by appellee, by radically changed- 2.
made the amendment after passage on its formal
reading ---- essentially different measure and one (2) That the appellant had no legal right to have
that a constitutional [*699] majority could not be disclosed to him the material furnished to the
procured to vote for in any event. It must, advisory committee and to the Minister on which
[***6] we think, be that a construction of the the Minister tendered advice to the Governor-
constitutional provision that would admit of such General as to the exercise of the prerogative of
manipulation, resulting in its own easy mercy as the exercise of the royal prerogative
subversion and defeat, it not the better one. was solely discretionary and not quasi-judicial.
Board of Revenue v Crow. 141 Ala. 126, 37 So.
469; Rogers v State 72 Ark. 565, 82 S.W. 169; Per Lord Diplock, at pgs 391-393:
Glenn v Wray, 126 N.. 730 36 S.E. 167; Cohn v
Kingsley, 5 Idaho 416, 49 P. 98 38 L.R.A. 84; The Constitution of Trinidad and Tobago came
State v Drabelle, 261 Mo. 515, 170 S.E. 465. into force on August 31, 1962. Chapter I on
which the appellant's claim is founded is headed
We do not fell warranted, even in order to "The Recognition and Protection of Human
uphold wholesome legislation, in making by Rights and Fundamental Freedoms." Section 1,

38
so far as is relevant to the present appeal, is in force in England on March 1, 1848, in the case
the following terms: of Trinidad, and on January 1, 1889, in the case
of Tobago, so far as these had not been
"It is hereby recognised and declared that in abrogated by enacted law. This unwritten law
Trinidad and Tobago there have existed and shall has been preserved after the commencement of
continue to exist without discrimination by the Constitution by section 12 of the Supreme
reason of race, origin, colour, religion or sex, the Court of Judicature Act 1962.
following human rights and fundamental
freedoms, namely, (a) the right of the individual Chapter I of the Constitution of Trinidad and
to life, liberty, security of the person and Tobago, like the corresponding chapter III of the
enjoyment of property, and the right not to be Constitution of Jamaica (see Director Public
deprived thereof except by due process of law; Prosecutions v. Nasralla [1967] 2 A.C. 238),
(b) the right of the individual to equality before proceeds on the presumption that the human
the law and the protection of the law." rights and fundamental freedoms that are
referred to in sections 1 and 2 are already
The paragraphs that follow, (c) to (k), specify secured to the people of Trinidad and Tobago by
other familiar rights and freedoms which form the law in force there at the commencement of
the subject of the Universal Declaration of the Constitution. Section 3 debars the individual
Human Rights. Sections 2 and 3, so far as from asserting that anything done to him that is
relevant, read as follows: authorised by a law in force immediately before
August 31, 1962, abrogates, abridges or infringes
"2. Subject to the provisions of sections 3, 4 and any of the rights or freedoms recognised and
5 of this Constitution, no law shall abrogate, declared in section 1 or particularised in section
abridge or infringe or authorise the abrogation, 2.
abridgment or infringement of any of the rights
and freedoms hereinbefore recognised and Section 2 is not dealing with enacted or
declared and in particular no Act of Parliament unwritten laws that were in force in Trinidad or
shall - ... (b) impose or authorise the imposition Tobago before that date. What it does is to
of cruel and unusual treatment or punishment; ... ensure that subject to three exceptions no future
(e) deprive a person of the right to a fair hearing enactment of the Parliament established by
in accordance with the principles of fundamental chapter IV of the Constitution shall in any way
justice for the determination of his rights and derogate from the rights and freedoms declared
obligations; ... (h) deprive a person of the right to in section 1. The three exceptions are: Acts of
such procedural provisions as are necessary for Parliament passed during a period of public
the purpose of giving effect and protection to the emergency and authorised by sections 4 and 8;
aforesaid rights and freedoms. Acts of Parliament authorised by section 5 and
passed by the majorities in each House that are
3. (1) Sections 1 and 2 of this Constitution shall specified in that section; and Acts of Parliament
not apply in relation to any law that is in force in amending chapter I of the Constitution itself and
Trinidad and Tobago at the commencement of passed by the majorities in each House that are
this Constitution. specified in section 38.

(2) For the purpose of subsection (1) of this The specific prohibitions upon what may be
section a law in force at the commencement of done by future Acts of Parliament set out in
this Constitution shall be deemed not to have paragraphs (a) to (h) of section 2 and introduced
ceased to be such a law by reason only of - (a) by the words "in particular," are directed to
any adaptations or modifications made thereto by elaborating what is meant by "due process of
or under section 4 of the Trinidad and Tobago law" in section 1 (a) and "the protection of the
(Constitution) Order in Council 1962 ..." law" in section 1 (b). They do not themselves
create new rights or freedoms additional to those
"Law" is defined in section 105 (1) as including recognised and declared in section 1. They
"any instrument having the force of law and any merely state in greater detail what the rights
unwritten rule of law." The "unwritten law" in declared in paragraphs (a) and (b) of section 1
force in Trinidad and Tobago at the involve.
commencement of the Constitution was the
common law and doctrines of equity that were in

39
The appellant's claim that it would be unlawful date and hour specified to deliver the prisoner to
to carry out the sentence of death pronounced on the Marshal. The warrant directed to the Marshal
him on August 21, 1972, was based on the requires him to receive the prisoner into his
contention that this would constitute an custody at that date and time and forthwith
"imposition of cruel and unusual punishment" convey him to the usual place of execution and
upon him such as is prohibited by section 2 (b) there cause execution to be done upon him. The
of the Constitution, and so would infringe his section itself provides that this warrant "shall be
right under section 1 (a) not to be deprived of carried into execution by such Marshal or his
life except "by due process of law." Their assistant at such time and place as shall be
Lordships agree with the Court of Appeal that mentioned in such warrant," and contains a
this contention fails in limine. Sentence of death proviso authorising the Governor-General to
for murder, as their Lordships have already respite the execution and issue a fresh warrant
pointed out, is mandatory under the Offences specifying some later time or other place of
against the Person Ordinance which was in force execution. The method of execution, viz. by
at the commencement of the Constitution. hanging, is specified in the warrant and is in
Although in the High Court it had been accordance with the common law of England
contended that the death sentence itself was that was in force in Trinidad and Tobago at the
unconstitutional, before the Court of Appeal and commencement of the Constitution. It is in their
before this Board counsel for the appellant felt Lordships' view clear beyond all argument that
constrained to concede that the pronouncement the executive act of carrying out a sentence of
of the sentence by the judge at the conclusion of death pronounced by a court of law is authorised
the trial did not offend against the Constitution. by laws that were in force at the commencement
He focussed his attack upon the act of the of the Constitution.
executive in carrying out an admittedly lawful
order of a court of law. The attack upon the DPP v Nasralla [1967]3 WLR pg 13
constitutionality of carrying out the death
sentence was based upon two alternative Per Lord Devlin at pg 18
grounds. The first was that capital punishment
was per se a cruel and unusual punishment and Whereas the general rule, as is to be expected in
that, although the pronouncement of the death a Constitution and as is here embodied in section
sentence by the court was mandatory, the 2, is that the provisions of the Constitution
executive act of carrying it out was not should prevail over other law, an exception is
authorised by any law that was in force before made in Chapter III. This chapter, as their
August 31, 1962. The alternative ground was lordships have already noted, proceeds upon the
that, even if the carrying out of the death presumption that the fundamental rights which it
sentence is not per se unconstitutional, the covers are already secured to the people of
average lapse of time between sentence and Jamaica by existing law. The laws in force are
execution has become substantially greater since not to be subjected to scrutiny in order to see
the commencement of the Constitution and this whether or not they conform to the precise terms
has the effect of making it unconstitutional to of the protective provisions. The object of these
carry out the death sentence. provisions is to ensure that no future enactment
shall in any matter which the chapter covers
In their Lordships' view neither of these derogate from the rights which at the coming
contentions can bear examination. Sections 4 (1) into force of the Constitution the individual
of the Offences against the Person Ordinance a is enjoyed. Accordingly section 26 (8) in Chapter
not confined to the pronouncement of sentence. III provides as follows:
What it says is: "Every person convicted of
murder shall suffer death as a felon." The "Nothing contained in any law in force
carrying out of the sentence of death is provided immediately before the appointed day shall be
for by section 59 of the Criminal Procedure held to be inconsistent with any of the provisions
Ordinance, which was also passed in 1925. This of this chapter; and nothing done under the
section provides for the issue by the Governor- authority of any such law shall be held to be
General of warrants in the forms set out in the done in contravention of any of these
Third Schedule directed to the Marshal and the provisions."
Keeper of the Royal Gaol respectively. The
warrant directed to the Keeper requires him at a

40
Baker v R [1975] 3 WLR 113 into force of the Constitution the individual
enjoyed." (p. 247)
Per Lord Diplock, at 120-121
That the same presumption underlies Chapter I
“Section 2 of the Constitution lays down the of the Constitution of Trinidad and Tobago was
general rule that if any law is inconsistent with stated by the Judicial Committee in de Freitas v.
the Constitution it shall to the extent of the Benny [1976] A.C. 239, 244. In section 1 the
inconsistency be void. Section 26 (8) creates an human rights and fundamental freedoms which it
exception to this general rule if the law alleged to is declared (by the only words in the section that
be inconsistent with the Constitution is one that are capable of being enacting words), "shall
was in force immediately before the appointed continue to exist" are those which are expressly
day and the alleged inconsistency is with a recognised by the section to "have existed" in
provision of the Constitution that is contained in Trinidad and Tobago. So to understand the legal
Chapter III. The Juveniles Law is such a law; nature of the various rights and freedoms that are
section 20 (7) of the Constitution is such a described in the succeeding paragraphs (a) to (k)
provision. In their Lordships' view it is too clear in broad terms and in language more familiar to
to admit of plausible argument to the contrary politics than to legal draftsmanship, it is
that even if section 29 (1) of the Juveniles Law necessary to examine the extent to which, in his
had on its true construction been inconsistent exercise and enjoyment of rights and freedoms
with section 20 (7) of the Constitution it would capable of falling within the broad descriptions
nevertheless have been saved from invalidity by in the section, the individual was entitled to
section 26 (8).” protection or non-interference under the law as it
existed immediately before the Constitution
came into effect. That is the extent of the
Maharaj v. A.-G. of Trinidad and Tobago protection or freedom from interference by the
[1978] 2 W.L.R. 902 law that section 2 provides shall not be
abrogated, abridged or infringed by any future
per Lord Diplock at pgs 908-909 law, except as provided by section 4 or section 5.

The structure and the presumptions that underlie What confines section 2 to future laws is that it is
Chapter I of the Constitution of Trinidad and made subject to the provisions of section 3. In
Tobago and the corresponding chapters in other view of the breadth of language used in section 1
constitutions on the Westminster model that to describe the fundamental rights and freedoms,
provide for the recognition and protection of detailed examination of all the laws in force in
fundamental human rights and freedoms, have Trinidad and Tobago at the time the Constitution
been referred to in a number of previous cases came into effect (including the common law so
that have come before the Judicial Committee: far as it had not been superseded by written law)
notably in Director of Public Prosecutions v. might have revealed provisions which it could
Nasralla [1967] 2 A.C. 238; Baker v. The Queen plausibly be argued contravened one or other of
[1975] A.C. 774; and de Freitas v. Benny [1976] the rights or freedoms recognised and declared
A.C. 239. In the first of these authorities Lord by section 1. Section 3 eliminates the possibility
Devlin, speaking for the Board, said of the of any argument on these lines. As was said by
corresponding chapter in the Constitution of the Judicial Committee in de Freitas v. Benny
Jamaica: [1976] A.C. 239, 244:

"This chapter . . . proceeds upon the presumption "Section 3 debars the individual from asserting
that the fundamental rights which it covers are that anything done to him that is authorised by a
already secured to the people of Jamaica by law in force immediately before August 31,
existing law. The laws in force are not to be 1962, abrogates, abridges or infringes any of the
subjected to scrutiny in order to see whether or rights or freedoms recognised and declared in
not they conform to the precise terms of the section 1 or particularised in section 2."
protective provisions. The object of these
provisions is to ensure that no future enactment Regina v Hughes [2002] 2 WLR 1058
shall in any matter which the chapter covers
derogate from the rights which at the coming The defendant was convicted of murder in the
High Court of Saint Lucia and sentenced to death

41
pursuant to section 178 of the Criminal Code1, the infliction of the death penalty on all
which provided that whoever committed murder murderers irrespective of their individual
was "liable indictably to suffer death". By characteristics, their type or the circumstances of
section 1284 a court could sentence an offender their offence, paragraph 10 prevented the court
to "any less punishment, other than death, than from holding that section 178 was inconsistent
that prescribed". The Eastern Caribbean Court with section 5 of the Constitution since
of Appeal dismissed the defendant's appeal punishment of that description had been lawful
against conviction. He applied to the Judicial before the specified date; but that to the extent
Committee of the Privy Council for special leave that section 178 of the Code went beyond
to appeal against sentence, raising for the first authorising the death penalty and required its
time the issue whether the mandatory death infliction in all cases of murder the exception in
sentence was unconstitutional. By section 5 of paragraph 10 did not apply.
the Constitution of Saint Lucia, set out in
Schedule 1 to the Saint Lucia Constitution Order (3) That the mandatory nature of the death
19782, no person was to be subjected to torture or penalty, which section 178 of the Code required
to inhuman or degrading punishment or other to be imposed for all murders, made it inhuman
treatment, and by section 120 any law or degrading punishment or other treatment, and
inconsistent with the Constitution was void to to that extent section 178 was inconsistent with
the extent of the inconsistency, but paragraph 10 section 5 of the Constitution and void pursuant to
of Schedule 2 to the Order provided that nothing section 120 of the Constitution; that the
contained in or done under the authority of any mandatory death sentence passed on the
law was to be held to be inconsistent with or in defendant under section 178 of the Code had
contravention of section 5 of the Constitution to therefore properly been quashed; that, by virtue
the extent that the law in question authorised the of paragraph 2(1) of Schedule 2 to the 1978
infliction of any description of punishment that Order, section 1284 of the Code was to be
was lawful in Saint Lucia before the date on construed as being modified to exclude the
which it became an associated state. The words "other than death", so that a lesser
Judicial Committee granted the defendant leave punishment than the death sentence prescribed
to appeal against sentence and remitted the case by section 178 could be imposed in murder
to the Court of Appeal to decide whether the cases, thereby rendering section 178 consistent
mandatory sentence of death imposed on the with section 5 of the Constitution and thus valid;
defendant should be quashed. The Court of that the Court of Appeal had erred in concluding
Appeal by a majority held that paragraph 10 of that in a murder case the jury should decide
Schedule 2 did not apply and that the mandatory whether or not the death penalty should be
death sentence for murder constituted inhuman imposed; that in such a case sentence was to be
or degrading punishment or treatment contrary to determined by the judge after hearing
section 5 of the Constitution. The Court of submissions and, if appropriate, evidence in
Appeal quashed the death sentence and remitted relation thereto; and that, accordingly, the order
sentencing of the defendant to the High Court for of the Court of Appeal would be modified so as
a jury to determine. to require the judge in the High Court to decide
the appropriate sentence to be imposed on the
On the Crown's appeal to the Judicial Committee defendant (post, paras 13-16, 50-53).
—
Per Lord Rodger
Held, (1) that, on a true construction, the words
"is liable indictably to suffer death" in section At pgs 1062-1063:
178 of the Criminal Code made the imposition of
the death penalty on all persons convicted of “At the hearing of the appeal Sir Godfray Le
murder mandatory, and the court had no power Quesne appeared for the Crown. At this stage
under section 1284 to impose a lesser sentence. his argument may be sketched in this way. First,
Sir Godfray submitted that paragraph 10 of
But (2), dismissing the appeal, that paragraph Schedule 2 to the Saint Lucia Order ("paragraph
10 of Schedule 2 to the 1978 Order was to be 10") prevented any court from holding that the
narrowly construed since it created exceptions to mandatory death penalty was inconsistent with
rights afforded by the Constitution; that, to the section 5 of the Constitution since the mandatory
extent that section 178 of the Code authorised death penalty for murder had been lawful in

42
Saint Lucia immediately before 1 March 1967. in contravention of, section 5 of the
Paragraph 10 is in these terms: Constitution……”

"Nothing contained in or done under the at pgs 1070-1071:

authority of any law shall be held to be
inconsistent with or in contravention of section 5 “In summary, the effect of paragraph 10 is to
of the Constitution to the extent that the law in introduce two exceptions to the protection made
question authorises the infliction of any available to the people of Saint Lucia by sections
description of punishment that was lawful in 5 and 120 and by sections 5 and 16 of the
Saint Lucia immediately before 1 March 1967 Constitution. The first exception prevents laws
(being the date on which Saint Lucia became an from being challenged for being inconsistent
associated state)." with section 5 but delimits very precisely the
extent of the immunity thus conferred. The
A similar argument would apply to the case of second exception prevents acts from being
Spence by virtue of paragraph 10 of Schedule 2 challenged for being in contravention of section
to the Saint Vincent Order which made the same 5. It follows, exactly, the contours of the
provision in relation to laws in effect before 27 immunity given to the law under the authority of
October 1969 when Saint Vincent became an which the act is done. In each case the exception
associated state…….” operates only to the extent that the law in
question "authorises" the infliction of a
At pgs 1066-1067: description of punishment that was lawful in
Saint Lucia immediately before 1 March 1967.
“For the Crown Sir Godfray submitted that the
Board should interpret paragraph 10 along 35 Since paragraph 10 introduces these
ordinary lines. When this was done, it could be exceptions to the rights and protection which
seen that the imposition of the death sentence in people would otherwise have under the
the present case fell within the terms of the Constitution, it must be construed like any other
paragraph. The requirement that sentence of derogation from constitutional guarantees. In
death should be passed on anyone convicted of State v Petrus [1985] LRC (Const) 699, 720D-F
murder was, he said, "contained in" section 178 in the Court of Appeal of Botswana, Aguda JA
of the Criminal Code, while the mode of referred to Corey v Knight (1957) 150 Cal App
execution of the sentence, by hanging, was 2d 671 and observed that "it is another well
"contained in" section 1291. Passing sentence of known principle of construction that exceptions
death by hanging on anyone convicted of murder contained in Constitutions are ordinarily to be
was therefore something "done under the given strict and narrow, rather than broad,
authority of" the Criminal Code. So the constructions". In case of doubt paragraph 10
imposition of the death sentence was not to be should therefore be given a strict and narrow,
"held to be inconsistent with or in contravention rather than a broad, construction…….”
of section 5 of the Constitution to the extent that"
the Criminal Code authorised "the infliction of At pgs 1072-1073:
any description of punishment" that was lawful
in Saint Lucia immediately before 1 March 1967. “In terms of paragraph 10 nothing contained in
As the defendant admitted, the punishment of section 178 of the Criminal Code can be held to
death by hanging was lawful in Saint Lucia be inconsistent with section 5 of the Constitution
immediately before that date. Therefore, the "to the extent that" section 178 "authorises the
Board had simply to ask itself to what extent the infliction of any description of punishment that
Criminal Code authorised the infliction of the was lawful in Saint Lucia immediately before 1
punishment of death by hanging. The answer March 1967". Sir Godfray was unquestionably
was to be found in the terms of sections 178 and right when he argued that section 178, when read
1291 which made that punishment mandatory with section 1291, authorises the infliction of the
wherever someone was convicted of murder. The death sentence by hanging and that this
effect of paragraph 10 was, accordingly, that description of punishment was lawful in Saint
neither the mandatory terms of sections 178 and Lucia immediately before 1 March 1967. It
1291 of the Criminal Code, nor the passing of follows that, in so far as section 178 authorises
the death sentence under the authority of those the infliction of that form of punishment, it
sections could be held to be inconsistent with, or

43
cannot be held to be inconsistent with section 5 in Pratt's case the Crown argued that their
of the Constitution. Lordships could not hold that the executions
would be contrary to section 17(1) because of the
41 Mr Fitzgerald did not really dispute this first exception in section 17(2). A similar argument
step in the argument. And that is entirely had been accepted in Riley's case [1983] 1 AC
understandable since he accepted—as he had to 719. The Board held, however, that the purpose
—that section 2(1) of the Constitution permits of section 17(2) was to preserve all descriptions
the execution of a death sentence on someone of punishment that were lawful immediately
duly convicted and sentenced for a criminal before independence and to prevent them from
offence. A law providing for power to impose being attacked under section 17(1), but that
the death penalty in such circumstances cannot section 17(2) did not address the question of
therefore be regarded as inconsistent with section delay in carrying out the punishment. Their
5 of the Constitution. Mr Fitzgerald's argument conclusion was put in this way [1994] 2 AC 1,
was, rather, that, while a law providing for the 29:
death sentence per se cannot be regarded as "Their Lordships will therefore depart from
inconsistent with section 5 of the Constitution, it Riley v Attorney General of Jamaica and hold
can be regarded as inconsistent with section 5 to that section 17(2) is confined to authorising
the extent that the mandatory nature of the descriptions of punishment for which the court
punishment makes it so disproportionate as to may pass sentence and does not prevent the
amount to inhuman punishment or treatment. It appellant from arguing that the circumstances in
is inhuman to require any person to be sentenced which the executive intend to carry out a
to death without the opportunity for mitigation or sentence are in breach of section 17(1)."
for considering the appropriateness of that
penalty in the particular case. Mr Fitzgerald submitted that, similarly, in the
present case the Board should hold that
42 Mr Fitzgerald sought to derive support for his paragraph 10 was confined to authorising
argument from the decision of the Board in Pratt descriptions of punishment for which the court
v Attorney General for Jamaica [1994] 2 AC 1 might pass sentence but that it did not prevent
where their Lordships declined to follow their the defendant from arguing that the
earlier decision in Riley v Attorney General of circumstances in which the judge imposed the
Jamaica [1983] 1 AC 719. In Pratt's case sentence, without any discretion or any
[1994] 2 AC 1 the appellants had been sentenced possibility of mitigation, were in breach of
to death in January 1979 and the warrant of section 5.
execution had issued on three occasions between
February 1987 and February 1991. The Board 44 Their Lordships accept the distinction which
held that to carry out the executions after a delay the Board drew in Pratt's case between
of 14 years would constitute inhuman authorising a description of punishment and
punishment contrary to section 17(1) of the authorising the carrying out of that punishment
Constitution of Jamaica. The death sentences in circumstances of extreme delay. Here,
were therefore quashed and sentences of life however, there can be no doubt that section 178
imprisonment were substituted. "authorises" the infliction of the death penalty on
all murderers, whatever their individual
43 Section 17 of the Constitution of Jamaica is in characteristics, whatever their type, whatever the
these terms: circumstances of their crime may have been.
"(1) No person shall be subjected to torture or Immediately before 1 March 1967 the law was
to inhuman or degrading punishment or other the same. That being so, paragraph 10 does
treatment. indeed prevent the court from holding that
"(2) Nothing contained in or done under the section 178 is inconsistent with section 5 to the
authority of any law shall be held to be extent that it "authorises" the infliction of the
inconsistent with or in contravention of this death penalty on all these different kinds of
section to the extent that the law in question people and in all these different circumstances.
authorises the infliction of any description of For these reasons their Lordships cannot accept
punishment which was lawful in Jamaica the argument advanced by Mr Fitzgerald on the
immediately before the appointed day." basis of Pratt's case……”
The similarity between section 17(2) and
paragraph 10 is obvious. In resisting the appeal at pgs 1074-1075:

44
 49 Similarly, and to the same extent, the
“47 Their Lordships have already held that defendant could seek redress from the High
section 178 "authorises" the infliction of the Court under section 16(1) of the Constitution on
death penalty on all murderers. If that were all the basis that the execution of a mandatory death
that the section did, then by reason of paragraph sentence would be in contravention of section 5.
10 it could not be held to be, to any extent, The right to seek redress from the High Court is,
inconsistent with section 5 of the Constitution. however, without prejudice to any other action
For the measure of the exception in paragraph 10 that is lawfully available with respect to this
is simply the extent to which the law matter. The Court of Appeal disposed of the
"authorises" the infliction of the specified type of appeal by quashing the sentence of death and
punishment. In fact, however, section 178 goes remitting to the court below to consider the
much further than authorising: it does not merely appropriate sentence. Before the Board the
authorise, it actually requires the infliction of the Crown did not question the availability of such a
death penalty on anyone convicted of murder. remedy in an appropriate case. As their
The second step in Sir Godfray's argument Lordships have already noted, the sentence of
depends on classifying this requirement that the death was passed by the judge under the
punishment be inflicted as simply one particular mandatory requirement in section 178. If section
species of authorisation. That step is unsound, 178 is held to be void in that respect, then any
however. While every law which requires that death sentence pronounced under it must be
an act be performed authorises that act, no law unlawful. An order quashing the sentence would
which merely authorises an act requires that it be be the most effective remedy in these
performed. Therefore a law, like section 178, circumstances. Therefore, to the extent that the
which requires that an act be performed contains judge was required to impose sentence of death
a crucial additional element that goes beyond under section 178, the defendant can legitimately
mere authorisation. Indeed at the heart of the seek to have the sentence quashed…..”
appeals in all these cases lies the very fact that
there is a world of difference between a law that Pinder v R [2002] 3 WLR 1443
requires a judge to impose the death penalty in
all cases of murder and a law that merely Read entire case
authorises him to do so. More particularly, it is
because the law requires, rather than merely Roodal v The State (Court of Appeal)
authorises, the judge to impose the death Read entire case
sentence that there is no room for
mitigation and no room for the consideration of Pages 8-11
the individual circumstances of the defendant or
of the murder. These are, of course, the very THE SPECIAL SAVINGS CLAUSE –
matters upon which Mr Fitzgerald bases the SECTION 6(1)
constitutional challenge by reference to section
5. The reason why he judgments of the Privy
Council in this trilogy of cases have not
48 Their Lordships therefore conclude that, to determined the outcome of the present appeal is
the extent that section 178 is to be regarded as because in none of them was there available to
authorising the infliction of the death penalty in the State a special savings clause that bears any
all cases of murder, it cannot be held to be resemblance to section 6(1) of our Constitution .
inconsistent with section 5 of the Constitution. The relevant part of section 6 reads as follows:
But, to the extent that it goes further and actually
requires the infliction of the death penalty in all “6 (1) Nothing in section 4 and 5
cases of murder, the exception in paragraph 10 shall invalidate-
does not apply. It follows that, to this extent, the (a) an existing law;
defendant enjoys his rights under sections 5 and
120. So, to this extent he can legitimately seek (2) In this section –
to persuade a court that section 178 of the …
Criminal Code is inconsistent with section 5 of “existing law” means a law that had effect as part
the Constitution and so is void in terms of of the law of Trinidad and Tobago
section 120. immediately before the commencement
of this Constitution, and includes any

45
 enactment referred to in sub-section conjunction with another key section of the 1976
(1).” Constitution. This is section 2, which reads as
follows:
There is no doubt that the death penalty
provision is an existing law for the purposes of “This Constitution is the supreme law of
this section. It has been on the statute books, as Trinidad and Tobago and any other law that is
we have seen, since 1842 and been part of the inconsistent with the Constitution is void to the
unwritten law of Trinidad and Tobago since the extent of the inconsistency”.
common law was adopted in 1848. It would
appear at first blush therefore that section 6 As will appear, we think it is of some
preserves the mandatory death penalty, at least significance that this was a new provision which
insofar as it is challenged on the ground of its is not found in the 1962 Constitution or in the
incompatibility with sections 4 and 5 of the 1962 Order.
Constitution. But Mr. Mendes for the appellant
advanced an ingenious argument based largely Pages 16 -21
on the difference between the wording of section
6 (1) and that of its predecessor, section 3 (1) of THE MEANING OF ‘CONSTRUE WITH
the 1962 Constitution. He argued that the scope MODIFICATIONS’
of the immunity of existing laws from Having made this review of the authorities, we
constitutional cha llenge had been greatly are now in a position to assess the purport and
reduced by the 1976 Constitution while the effect of section 5 (1) of the 1976 Act. The first
power of the court to modify existing laws so as thing we can say about that section is that though
to bring them into conformity with the human it speaks of existing laws being “construed”, the
rights provisions, had been correspondingly type of ‘construing’ which is involved is not the
increased. The “modification clause” on which examination of the language of existing laws for
the appellant heavily relied, is section 5 (1) of the purpose of abstracting from it their true
the Constitution of the Republic of Trinidad and meaning and intent, nor is it attributing to
Tobago Act 1976 (“The 1976 Act”). It reads as existing laws a meaning which, though not their
follows: primary or natural meaning, is one that they are
capable of bearing. In fact, the function which
“5 (1) Subject to the provisions of this section, the court is mandated to carry out in relation to
the operation of the existing law on and after the existing laws under this section, goes far beyond
appointed day shall not be affected by the what is normally meant by ‘construing’. It may
revocation of the Order in Council of 1962 but involve the substantial amendment of laws,
the existing laws shall be construed with such either by deleting parts of them or making
modifications, adaptations, qualifications and additions to them or substituting new provisions
exceptions as may be necessary to bring them for old. It may extend even to the repeal of some
into conformity with this Act” provision in a statute or a rule of common law.
Mr. Daly’s submission that the section should be
This provision is substantially the same mutatis regarded as conferring very limited powers is, I
mutandis as section 3 (1) of the Trinidad and am afraid, a brave but unavailing attempt to turn
Tobago (Constitution) Order in Council 1962 the clock back.
(“the 1962 Order”).
The special savings clause for existing laws that In the passage which we have quoted from the
was remodelled in section 6 (1) of the 1976 San Jose Farmers case (supra), Liverpool JA
Constitution was section 3 (1) of the 1962 exp ressed the view that the power to modify
Constitution. This read as follows: was limited by reference to the starkness of the
conflict between the existing law and the
“Sections 1 and 2 of this Constitution [sections 4 Constitution. The authorities we have cited,
and 5 of the 1976 Constitution] shall not apply in however, including the decision in the San Jose
relation to any law that is in force in Trinidad case itself, would tend to belie the existence of
and Tobago at the commencement of this any such limitation. With great respect to
Constitution”. Liverpool JA, the starkness of the conflict seems
to have little to do with it. To describe what the
In order to understand and properly apply these courts have done in some of the cases cited
provisions, it is necessary to read them in above under the authority of a modification

46
clause as ‘construing’ the offending provision is Islandwide Cane Farmers Association and
something of a legal fiction. It is now too late in Attorney-General v. Seereeram (1975) 27
the day to limit the power conferred by such a W.I.R. 329. The offending enactment in that case
clause by reference to what is normally meant by contained a number of sections which breached
the term ‘construe’. the respondent’s constitutional rights by
imposing a cess on the proceeds of the sale of his
It is important to note the close connection sugar-cane and fixing him with membership of
between section 2 of the Constitution and section the Cane Farmers Association which he could
5 (1) of the 1976 Act. What triggers both not discard. It was held that the inoffensive
sections is inconsistency between a law and the sections of the statute were so inextricably bound
Constitution. When such an inconsistency exists, up with the invalid provisions that they could not
section 2 is quite uncompromising. It provides survive independently of them. As they were not
that the other law is void though only to the severable, the whole of the statute was declared
extent of the inconsistency. It may be that only null and void. Because the statute was not an
part of a law is inconsistent. That part must be existing law, it was not amenable to modification
treated by the court as void, but section 5 (1) under section 4 (1) of the 1962 Order, but even if
imposes a duty on the court to try and save the it had been, the result, it is suggested, would
“good” portion of the law by modification. That have been the same.
may involve simply deleting the inconsistent
part. It has been held that such deletion is within In fact the difference between ‘construing’ a
the scope of section 5 (1). But the effect of the provision by deleting it under section 5 (1) of the
deletion may be to create a gap which requires to 1976 Act and holding it to be void under section
be filled by something compatible with the 2 of the 1976 Constitution, is only a matter of
Constitution. Alternatively, the inconsistency semantics. Thus the ‘modification’ of the section
may arise because of the absence of something in the Police Ordinance in Kanda (supra) is
needed to bring the law into conformity with the indistinguishable in its effect from the implied
Constitution e.g. access to the courts in repeal of the section in the Emergency Powers
Maximea. The cases show that it is sometimes Act in Maximea (supra).
perfectly legitimate for the court to fill such gaps
by way of modification under section 5 (1) In the trilogy of cases it was after the Privy
provided that in doing so the court does not Council found that the mandatory death penalty
arrogate to itself a law-making function that was invalid that it passed on to consider the
should properly be left to the legislature. When question of modification. Thus in Reyes Lord
may the court fill the gap and when should it Bingham said (at para. 43): “Section 102 (3) (b)
refrain from doing so? We suggest that it of the Criminal Code is accordingly, to the extent
depends on whether there is a simple and that it refers to “any murder by shooting”
obvious means of filling the gap in a way that inconsistent with section 7 of the Constitution.
will achieve conformity with the Constitution The category is indiscriminate. By virtue of
and is in fact dictated by the Constitution. In section 2 of the Constitution subsection 3 (b) is
such a case the court may fill the gap by to that extent void. It follows that any murder by
modification. Where however the solution is not shooting is to be treated as falling within Class
so simple, and filling the gap involves the B as defined in section 102 (3) of the Criminal
making of a Code. This is sanctioned by section 134 (1) of
choice or the establishment of a policy, these are the Constitution … .”
matters which the court should leave to the
legislature. It appears to us that these are the The way in which the invalidity of a provision
considerations which limit the power of the court triggers the obligation of the court to construe
to modify under section 5 (1), rather than the with modifications is also well illustrated by the
starkness of the conflict. following passage taken from the judgment of
the Judicial Committee delivered by Lord
Another situation in which modification may not Hobhouse in Greene Browne v. R. (supra) at
be possible is when a substantial part of an page 49:
enactment is void for inconsistency and what
remains is so closely intertwined with the tainted “It follows that the sentence prescribed by
portion that it cannot sensibly stand on its own. section 3 (1) of the Act of 1873 is contrary to the
This was held to be the position in Trinidad Constitution of St. Christopher and Nevis and

47
that the sentence passed on the appellant was, in force, was to make any conflict between an
even after correction of the verbal error, an existing law and these sections of no
unlawful sentence which the courts were not consequence. He argued, however, that the
entitled to pass or uphold. The sentence must be provision in the 1976 Constitution that nothing
set aside. in the human rights provisions should invalidate
an existing law, did not have the same effect. But
The validity of the provision is not saved by any how can that be when invalidity is at the very
provision of the Constitution which preserves the heart of the matter? The ‘raison d’etre’ of section
validity of previous laws. The Constitution, 5 is to remove the invalid portions of existing
unlike that of other Caribbean countries, does not laws while preserving them as far as possible in
include a general preservation of the validity of an unobjectionable form. It is the implementation
all the pre-existing laws. … Paragraph 2 (1) of of section 2 which decrees voidness as the
Schedule 2 provides that: penalty for inconsistency but only to the extent
of the inconsistency.
“The existing laws shall, as from 19 September
l983, be construed with such modifications, There still remains the question posed by Mr.
adaptations, qualifications and exceptions as may Mendes: why the change from the language of
be necessary to bring them into conformity with section 3 (1) in the 1962 Constitution to that of
the Constitution and the Supreme Court Order.” section 6 (1) in the 1976 Constitution? A
Therefore, it is the duty of the court to decide possible answer is that the change may have had
what modifications require to be made to the something to do with the introduction in the
offending provision in the proviso and to give 1976 Constitution of section 2. Section 2
effect to it in its modified form, not to strike contains an unqualified prescription that any
down the proviso altogether”. other law that is inconsistent with the
At page 50: Constitution shall be void to the extent of the
“In their Lordships’ judgment the answer to this inconsistency. There was no such provision in
part of the case is to identify the element of the 1962 Constitution. It may have been thought
unconstitutionality in the relevant statutory necessary or appropriate by the draftsman when
provision and then to consider what change is he was creating an exception to this prescription
necessary to give effect to the requirements of in section 6 (1) to do so in language that
the Constitution and the appellant’s approximated to that of section 2, that is, the
constitutional rights”. language of voidness or invalidity. Section 2 said
that inconsistent laws shall be void; section 6 (1)
In these judgments resort is had to modification says that nothing in the human rights sections
only after the invalidity has been established. shall invalidate an existing law, that is, make it
This suggests that although it is not expressly void. The language of section 6 (1) mirrors that
stated in section 5 (1), the power to modify of section 2.
contained in that section is triggered only by an
inconsistency which gives rise to invalidity. If Mr. Mendes was unable to point to anything in
there is no invalidity, then the occasion for the the legislative history of the 1976 Constitution to
court to construe with modifications does not indicate that there was a change in policy with
arise. regard to the protection afforded to existing laws
against constitutional challenge. There is no hint
Viewed from a slightly different angle, the of such a change in policy elsewhere in the
purpose of modification is to achieve conformity Constitution or the rest of the1976 Act. Quite the
with the Constitution as a whole, not with a contrary. Section 18 of the 1976 Act provides
particular part of it. Therefore, since there is a that all enactments passed under the former
provision in the Constitution which preserves the Constitution i.e. since Independence, and still in
validity of an existing law which conflicts with force:
the human rights provisions, such a law is not “shall be deemed to have been validly passed or
required to be brought ‘into conformity with’ the made and to have had full force and effect as part
Constitution. of the law of Trinidad and Tobago immediately
before the appointed day, even if any such
Mr. Mendes accepted that the effect of the enactment were inconsistent with any provision
provision that sections 1 and 2 of the 1962 of the former Constitution including in particular
Constitution should not apply in relation to laws sections 1 and 2 thereof.”

48
 language in the special savings clause in the
Whatever the precise purpose and effect of this 1976 Constitution.
section, it seems more consistent with a policy of
maintaining, if not increasing, the protection CONCLUSIONS
afforded to existing laws against constitutional For these reasons we hold that while the
challenge than with a policy of reducing it. The mandatory death penalty is a cruel and unusual
same thing may be said about section 6 (1) (c) of punishment or treatment within the meaning of
the 1976 Constitution. This extends the section 5 (2) (b) of the Constitution and therefore
protection given against invalidation to violative of the human rights declared in section
amendments of existing laws, provided the effect 4 (a) of the Constitution, it is saved from
of the amendment is not to make any fresh or invalidity by section 6 (1) and cannot be
further derogation from the fundamental human “construed away” by the court under section 5
rights. Such an amendment would not have (1) of the 1976 Act. We are firmly of the view
qualified for protection as a law in force under that if the death penalty is no longer to be
section 3 (1) and (2) of the 1962 Constitution. mandatory in Trinidad and Tobago, this change
must be effected by Parliament. There are some
We can now sum up the conclusions which we advantages to doing it by legislation rather than
have reached on this aspect of the case. We hold by judicial decision. Parliament will be able to
that the power to construe with modifications determine and prescribe wh ether the alternative
under section 5 (1) of the Act is wide enough to punishment for murder should be imprisonment
enable a court to remove or correct virtually any for life or for a term to be decided by the Judge.
inconsistency with the Constitution that may be It may also provide some guidelines as to the
found in an enactment. The Privy Council has in factors which the Judge is to take into account in
Reyes, Hughes and Fox sanctioned its use for determining whether or not to impose the death
the purpose of removing the mandatory death penalty. Parliament may also wish to address the
penalty by amending the laws which prescribed question of what role, if any, the jury should play
it. We have no doubt that it could be used for in determining the sentence to be imposed on a
that purpose in Trinidad and Tobago. It would convicted murderer. This consideration,
take no more than the same amendment of however, has played no part in leading us to the
section 4 of the Offences Against the Person Act conclusion we have reached.
as was made to the corresponding provision in
St. Christopher and Nevis in Fox and possibly an
amendment of section 68 (2) of the Interpretation THE RIVAL ARGUMENTS
Act to give the court power to impose a sentence Against the background of these provisions
of imprisonment on a person convicted of therefore, let us examine the argument for the
murder. The effect of this modification would be appellant. It went as follows:
to recognise and give effect to the invalidity of Since section 3 (1) of the 1962 Constitution
the mandatory death penalty. Such a provided that the human rights sections should
modification is the consequence of partial not apply to laws in force at the commencement
invalidity rather than an alternative to, or of that Constitution, there was never any
substitute for, it. The mandatory death penalty, question of the court invoking its power under
however, is saved from invalidity by section 6 section 4 (1) of the 1962 Order in Council to
(1) of the Constitution and so section 5 (1) of the construe such laws with modifications in order to
Act cannot be pressed into service to remove it. bring them into conformity with the human
However strictly and narrowly the word rights provisions. Indeed, there was no point in
“invalidate” may be construed, we do not even checking those laws for inconsistencies
consider that it can with any semblance of with the human rights provisions. The
rationality, be understood to mean render invalid effectiveness of the protection which section 3
pursuant to section 2, if, but only if, the cause of (1) gave to pre-existing laws was recognised and
the invalidity cannot be removed by modification proclaimed in such cases as de Freitas v Benny
under section 5 (1) of the Act. Such an [1975] 3 WLR 388, Director of Public
interpretation would strip existing laws of Prosecutions v Nasralla [1967] 3 WLR 13 and
virtually all the protection which they were Baker v The Queen [1975] 3 All E.R. 55. On the
afforded under the special savings clause in the other hand, in those cases in which there was no
1962 Constitution. We do not accept that that special savings clause for existing laws
was what Parliament intended by the change of applicable, it was established by this court in

49
Beckles v Dellamore (1965) 9 WIR 299 that the scope once it was applicable, for the operation of
power to construe with modifications given to section 5 (1) of the 1976 Act. He described the
the Court by section 4 (1) of the 1962 Order, function of section 5 (1) as transitional and
included the power to make substantive ‘settling’, its purpose being to preserve the legal
amendments of existing laws in order to bring status quo. He contended that the court’s powers
them in line with the Constitution; so that when under that section were quite limited. They did
the Parliament came to enact the 1976 not extend to annulling provisions. If it appeared
Constitution, it was well aware both of how that they had been treated as quite wide in some
effective section 3 (1) had been to protect cases, that was because those were cases in
existing laws from challenge and of the which there was no special savings clause
extensive power to re-write existing laws given applicable. In any event the extent of the powers
to the court by the “construe with modifications” under section 5 (1) was really irrelevant as once
instruction. Accordingly, when the Parliament section 6 (1) was applicable, section 5 (1) would
made a conscious decision to recast the special never come into play. These in broad outline
savings clause and change from the previous were the arguments advanced with regard to this
formula of words which had proved effective to aspect of the case.
a new formula, it must have understood and
intended that the new formula would produce a IS THE CONSTITUTION PART OF THE
different effect. This effect, it was submitted, 1976 ACT?
was to restrict the protection given to existing We can start by disposing of a point which was
laws to those cases (admittedly rare) in which the made for the State in its skeleton argument and
court could not use the wide power it has under was never expressly abandoned. It is that when
section 5 (1) of the 1976 Order to get rid of the section 5 (1) speaks of bringing existing laws
inconsistency between an existing law and the into conformity “with this Act”, “this Act” does
human rights provisions. It was only in those not include the Constitution. We have no
cases that section 6 (1) would “kick in”, in order hesitation in rejecting this submission. Section 3
to save the law from being invalidated under of the 1976 Act provides inter alia that on the
section 2. The first shot, so to speak, at any appointed day “the Constitution shall have effect
inconsistent law would be given to the court as the supreme law of the State in place of the
using its formidable powers under section 5 (1) former Constitution”. “The Constitution” is
of the 1976 Act. This, it was submitted, was the defined as the Constitution set out in the
effect of the change of wording Page 11 of 26 Schedule to the Act. It is an elementary rule of
from “shall not apply in relation to” to “shall not construction that a schedule to an Act is part of
invalidate”. It was pointed out that sections 1 and the Act. See Halsburys Laws (4th ed.) volume 44
2 of the 1962 Constitution (the human rights (1) paragraph 1260. The 1976 Act in some
provisions) were reproduced without change as places refers specifically to ‘the Constitution’
sections 4 and 5 in the 1976 Constitution. This, it and in others to ‘the Act’: References to the
was suggested, was a clear indication that the Constitution do not include the rest of the Act,
change made to section 3 was both deliberate but references to the Act do include the
and significant. It was also pointed out that it Constitution.
was consistent with principles of construction
that were now well-established, to give on the Roodal v The State Privy Council (2003)
one hand a generous and purposive construction UKPC
to section 5 (1) of the 1976 Act which was in
support of human rights and freedoms, and on VI. Issue (b): Constitutional Modification.
the other hand, to give a strict and narrow
An Order in Council of 1961 contained a
construction to section 6 (1) which created an
Constitution of Trinidad and Tobago. It was
exemption from the requirement of compliance
replaced by a new Constitution as part of the
with the human rights provisions.
Trinidad and Tobago (Constitution) Order in
Council 1962. The 1962 Constitution contained
Mr. Daly representing the State submitted that
in sections 1 and 2 a bill of rights. In section 2
the real issue in the case was the interpretation of
there was a guarantee against the imposition of
section 6 (1). He contended that that section
cruel and unusual treatment or punishment.
Precluded any invalidation either in whole or in
Section 3 provided:
part of any existing law by reference to the
human rights provisions and therefore left no

50
“Sections 1 and 2 of this Constitution shall not the following fundamental human rights and
apply in relation to any law that is in force in freedoms, namely:-
Trinidad and Tobago at the commencement of
(a) the right of the individual to life ... and the right
this Constitution.”
not to be deprived thereof except by due process
of law;
Section 4(1) of the Order provided:
(b) the right of the individual to equality before the
“Subject to the provisions of this section, the
law and the protection of the law ...;”
operation of the existing laws after the
commencement of this Order shall not be
Section 5 of the Constitution provides:
affected by the revocation of the existing Order
but the existing laws shall be construed with “(1) Except as is otherwise expressly provided
such modifications, adaptations, qualifications in this Chapter and in section 54, no law may
and exceptions as may be necessary to bring abrogate, abridge or infringe or authorise the
them into conformity with this Order.” abrogation, abridgement or infringement of any
of the rights and freedoms hereinbefore
“Existing laws” mean legislation “having effect recognised and declared.
as part of the law of the Colony of Trinidad and
Tobago immediately before the commencement (2) Without prejudice to subsection (1), but
of this Order”: section 4(5) of the Order. subject to this Chapter and to section 54,
Parliament may not –
In 1976 the Constitution of the Republic of ...
Trinidad and Tobago Act was enacted. The (b) impose or authorise the imposition of cruel and
Constitution was a schedule to the Act. Section unusual treatment or punishment.”
2 of the Constitution provides:
The first question before the Court of Appeal
“This Constitution is the supreme law of
was whether a mandatory death sentence is a
Trinidad and Tobago, and any other law that is
cruel and unusual punishment within the
inconsistent with this Constitution is void to the
meaning of section 5(2)(b). Following the
extent of the inconsistency.”
decision of the Privy Council in Reyes v The
Queen [2002] 2 AC 235 the Court of Appeal
It came into force on 27 July 1976.
held that the mandatory sentence of death is a
cruel and unusual punishment. The correctness
The bill of rights under the 1976 Constitution
of this ruling is not disputed. In these
was cast in absolute terms. There are
circumstances it is unnecessary to consider
undoubtedly implied limitations on these
whether section 4 of the 1925 Act is in
guarantees. One such limitation may derive
conformity with the right to life guarantee under
from section 53 of the Constitution which vests
section 4(a) of the Constitution. The fact that it
in Parliament the power to make laws for the
is conceded by the state that the mandatory
peace order and good government of Trinidad
sentence of death in Trinidad and Tobago is a
and Tobago: see Demerieux, Fundamental
cruel and unusual punishment under the 1976
Rights in Commonwealth Caribbean
Constitution must not be allowed to obscure the
Constitutions, 1992, at 87-89. Section 13 which
fact that the condemnation of this punishment is
contains the requirement that legislation
the framework within which the issues on this
inconsistent with the bill of rights must be
appeal must now be considered.
“justifiable in a society that has a proper respect
for the rights and freedoms of the individual”
and be passed by a three fifths majority, is also It is now necessary to turn to the provisions in
relevant. This point is, however, not material to the Act and in the Constitution which govern the
the problem presently before the Privy Council. position of existing laws. Such provisions are to
be found in a number of Caribbean
Section 4 of the Constitution provides: Constitutions, and there are decided cases in
various contexts on such provisions.
“It is hereby recognised and declared that in Generalising about the effect of such provisions
Trinidad and Tobago there have existed and shall in different contexts is to be avoided. An intense
continue to exist without discrimination by focus on the particular provisions applicable in
reason of race, origin, colour, religions or sex, Trinidad and Tobago, in the context of the

51
specific problem before the Privy Council, is of imprisonment on a person convicted of
necessary. Section 5(1) of the 1976 Constitution murder.”
Act, provides: [References to decisions on appeal from Belize,
St Lucia and St Christopher and Nevis added]
“Subject to the provisions of this section, the
operation of the existing law on and after the
appointed day shall not be affected by the It is common ground that section 5(1) is wide
revocation of the Order in Council of 1962 but enough to accommodate the modification of
the existing laws shall be construed with such section 4 of the 1925 Act by providing for a
modifications, adaptations, qualifications and discretionary death sentence.
exceptions as may be necessary to bring them
into conformity with this Act.” But the Chief Justice concluded that the
mandatory death penalty is saved by section 6.
Section 6 of the Constitution provides: The Chief Justice observed:

“(1) Nothing in sections 4 and 5 shall “The effect of this modification would be to
invalidate – recognise and give effect to the invalidity of the
(a) An existing law; mandatory death penalty. Such a modification is
... the consequence of partial invalidity rather than
an alternative to, or substitute for, it. The
mandatory death penalty, however, is saved from
(3) In this section –
invalidity by section 6(1) of the Constitution and
so section 5(1) of the Act cannot be pressed into
‘Existing law’ means a law that had effect as part service to remove it. However strictly and
of the law of Trinidad and Tobago immediately narrowly the word ‘invalidate’ may be
before the commencement of this Constitution, construed, we do not consider that it can with
and includes any enactment referred to in any semblance of rationality, be understood to
subsection (1);” mean render invalid pursuant to section 2, if, but
only if, the cause of the invalidity cannot be
The question is whether the power to make removed by modification under section 5(1) of
modifications under section 5(1) of the Act is the Act. Such an interpretation would strip
wide enough to cover what appears to be a existing laws of virtually all the protection which
mandatory sentence of death under section 4 of they were afforded under the special savings
the 1925 Act so far as such a mechanical rule is clause in the 1962 Constitution. We do not
not in conformity with the Constitution. accept that that was what Parliament intended by
the language of the special savings clause in the
The Court of Appeal directly addressed this Constitution.” [Emphasis added]
issue. The Chief Justice concluded:
It will be noted that the Chief Justice invoked the
“We hold that the power to construe with position under the 1962 Constitution. The
modifications under section 5(1) of the Act is question is whether the Chief Justice construed
wide enough to enable a court to remove or section 6 correctly.
correct virtually any inconsistency with the
Constitution that may be found in an enactment.
The Privy Council has in Reyes ([2002] 2 AC The Chief Justice assumed that the extent of the
235); Hughes ([2002] 2 AC 284); and Fox power of modification under the 1962 and 1976
([2002] 2 AC 259) sanctioned its use for the Constitutions remained the same. A comparison
purpose of removing the mandatory death between the powers of modification under
penalty by amending the laws which prescribed section 4 of the 1962 Order and under section
it. We have no doubt that it could be used for 5(1) of the 1976 Constitution Act can be made.
that purpose in Trinidad and Tobago. It would But equating section 3 of the 1962 Constitution
take no more than the same amendment of and section 6(1) of the 1976 Constitution is not
section 4 of the Offences Against the Person Act justified. The former is a straightforward “shut
as was made to the corresponding provision in out” provision: see de Freitas v Benny [1976]
St. Christopher and Nevis in Fox and possibly an AC 239, at 244G-H. Modifying section 4 of
amendment of section 68(2) of the Interpretation 1925 Act by providing for a discretionary life
Act to give the court power to impose a sentence sentence is plainly ruled out by section 3 of the

52
1962 Constitution. The 1976 Act and
Constitution adopted a more open textured The suggested interpretation allows the
scheme in respect of existing laws. This change constitutional power to modify in cases of non
in language from “shall not apply” to “shall not conformity to play a dynamic but not extravagant
invalidate” could not have been unintended. role. For example, it would not warrant a
Otherwise one would have expected a challenge to the death sentence as such. On the
continuance of the “shut out” provision in the other hand, the interpretation of the Court of
1962 Constitution in respect of existing laws. In Appeal allows only minimal scope for the
1976 the door was opened to the argument now operation of section 5 of the 1976 Act. The
before the Privy Council. context of fundamental rights in respect of issues
of life and death demands “a generous
In any event, there is another possible interpretation” avoiding what has been called
interpretation. It is to the effect that the first ‘the austerity of tabulated legalism’, suitable to
stage is to determine whether section 4 of the give to individuals the full measure of the
1925 Act can be modified under section 5 of the fundamental rights and freedoms referred to”:
1976 Act, by reading down, reading in, or Minister of Home Affairs v Fisher [1980] AC
severance, so as to render the words of the 319, at 328. Instead the Court of Appeal has
statute in conformity with the Constitution. adopted a more technical approach…
Section 6 of the Constitution only comes into
operation to preclude invalidation of an existing … For all these reasons the Board concludes that
law which has proved irremediable by resort to section 4 of the 1925 Act should be interpreted
modification. In that event section 2 renders the as providing for a discretionary life sentence.
provision void unless it is saved in respect of
section 4 or 5 non-conformity by section 6. It is How is the modification to be effected? That
true, of course, that there is a potential tension brings one back to the Interpretation Act,
between sections 5 and 6. This interpretation has construed now in the world of today and in the
the merit of giving a generous interpretation to light of the Constitution as well as domestic and
section 5 and at the same time it does not give an international norms. So interpreted section 68 of
extensive interpretation to what Part II describes the Interpretation Act should be read as
as the “Exceptions for Existing Law”, which providing not for a fixed penalty of death for
include section 6(1). Exceptions contained in murder but for a maximum penalty of death. In
constitutional bills of rights are ordinarily to be other words the imposition of the death penalty
given a narrow, rather than broad, construction. for murder is discretionary. The obvious
This approach is justified on orthodox canons of alternative to it is imprisonment. No further
construction. modification of section 4 of the 1925 statute is
required.
While great care must be taken about comparing
constitutional provisions cast in different terms,
it is permissible to note that such a two stage The Director of Public Prosecutions v Kurt
interpretative process would operate in a broadly Mollison (No. 2) [2003] UKPC 6
similar fashion to the obligation of “reading
down” provisions in the bills of rights of Canada, Per Lord Bingham of Cornhill
New Zealand, South Africa and the United
Kingdom, which must undertaken before
incompatibility or sometimes invalidity is 1. On 16 March 1994, when he was aged 16,
considered: see Schachter v Canada [1992] 2 Kurt Mollison (the respondent) murdered Leila
SCR 679, at 695-6: Moonen v Film and Brown in the course or furtherance of a robbery.
Literature Board of Review [2000] 2 NZLR 9; S This was a capital murder under the law of
v Manamela [2000] 3 SA l; 2000(5) BCLR 491; Jamaica. He stood trial before Langrin J and a
section 3 and 4 of the Human Rights Act 1998. jury, was convicted on 21 April 1997 (aged 19)
It is a workable and benign technique to give a and on 25 April 1997 was sentenced under
reasonable measure of protection to fundamental section 29(1) of the Juveniles Act 1951 as
rights in a practical world where there are amended to be detained during the Governor-
inevitably tensions between individual rights and General’s pleasure. On 16 February 2000 the
good democratic government. Court of Appeal refused his application for leave

53
to appeal against conviction, but the court was every person convicted of capital murder shall be
concerned whether the sentence imposed on the sentenced to death. But special provision has
respondent was compatible with the Constitution been made for those who commit this crime
of Jamaica. That issue was adjourned to a when aged under 18. Following a number of
separate hearing, and on 29 May 2000 the Court amendments made pursuant to section 4 of the
of Appeal (Downer and Bingham JJA, Walker Jamaica (Constitution) Order in Council 1962
JA dissenting) allowed the respondent’s appeal: (SI 1962/1500), section 29 of the Juveniles Act
the sentence of detention during the Governor- 1951 now provides, so far as material to the main
General’s pleasure was set aside and a sentence issue in this appeal, as follows:
of life imprisonment substituted, with a
“(1) Sentence of death shall not be
recommendation that the respondent be not
pronounced on or recorded against a
considered for parole until he had served a term
person convicted of an offence if it
of 20 years’ imprisonment dated from 25 July
appears to the Court that at the time
1997. The Director of Public Prosecutions
when the offence was committed he
appeals to the Board (with leave of the Court of
was under the age of eighteen years, but
Appeal) against the setting aside of the sentence
in place thereof the court shall sentence
of detention during the Governor-General’s
him to be detained during Her
pleasure. The respondent seeks to uphold that
Majesty’s pleasure, and, if so sentenced,
order, but cross-appeals against the sentence of
he shall, notwithstanding anything in
life imprisonment which was substituted. At the
the other provisions of this Law, be
heart of the appeal lie two main issues (sub-
liable to be detained in such place
divided below): whether the sentence of
(including, save in the case of a child,
detention during the Governor-General’s
an adult correctional centre) and under
pleasure authorised by section 29(1), conferring
such conditions as the Minister may
on the Governor-General as an officer of the
direct, and while so detained shall be
executive the power to determine the measure of
deemed to be in legal custody.
punishment to be inflicted on an offender, is
compatible with the Constitution; and, if it is not,
(4) The Governor-General may release
whether the terms of the Constitution protect it
on licence any person detained under
against effective challenge.
subsection (1) or (3) of this section.
Such licence shall be in such form and
2. Without objection by the Director, leave
contain such conditions as the
to intervene was given by the Board to seven
Governor-General may direct, and may
additional parties with a direct interest in the
at any time be revoked or varied by the
outcome of these proceedings. Each of these
Governor-General. Where such licence
parties, when aged between 14 and 17,
is revoked the person to whom it relates
committed a crime of capital murder on a date
shall return forthwith to such place as
between September 1980 (at the earliest) and
the Governor-General may direct, and if
November 1996 (at the latest). They were
he fails to do so may be arrested by any
convicted on dates between January 1982 and
constable without warrant and taken to
March 2000. Each of them was sentenced
such place.”
(either at trial or on appeal) to be detained during
the Governor-General’s pleasure, save in the
4. Section 29 as originally enacted was
latest of the cases (that of Andrew Hunter) who
amended in 1964 to substitute “Minister” for
was sentenced to life imprisonment. All the
“Governor” in subsection (1) and “Governor-
intervening parties are now confined in adult
General” for “Governor” in each of the four
correctional centres. Four of the intervening
references originally made to the Governor in
parties have applied to the Supreme Court of
subsection (4). In 1975 subsection (1) was
Jamaica for writs of habeas corpus; the
further amended to make plain, reversing the
applications have been adjourned pending the
effect of Baker v The Queen [1975] AC 774,
outcome of this appeal.
that the statutory prohibition on pronouncement
of the death sentence applied to those appearing
Section 29 of the Juveniles Act 1951
to be aged under 18 at the time when they had
3. Section 3 of the Offences against the committed the offence, not at the time of
Person Act 1864, as amended, provides that sentence. In 1985, the reference to “an adult

54
correctional centre” was substituted for the entrusted to the Governor-General as a member
previous reference to “a prison”. The enacted of the executive. Section 29(4) of the Juveniles
reference to “Her Majesty’s pleasure” has not, Act as amended has that express effect. This
however, been amended, no doubt because feature also has been clearly recognised: see The
section 68(2) of the Constitution of Jamaica State v O'Brien [1973] IR 50 at 59-60, 64, 71-72;
provides that the executive authority of Jamaica R v Secretary of State, Ex p Venables [1998] AC
may be exercised on behalf of Her Majesty by 407 at 498-499, 519-524, 530-532; Browne v the
the Governor-General. In recognition of this Queen [2000] 1 AC 45 at 48; V v United
constitutional reality, it appears to be the practice Kingdom (1999) 30 EHRR 121, paras 110-111.
where section 29(1) applies, as was done in this Thus while, in a case falling within section
case, to call the sentence one of detention during 29(1), the judge sitting in court passes sentence,
the Governor-General’s pleasure, and in this it falls to the executive to determine the measure
opinion that usage will be adopted. of punishment which an individual detainee will
undergo: Hinds v The Queen [1977] AC 195 at
5. The sentence of detention during Her 227-228. It is clear that such determination is
Majesty’s pleasure originated in the United for all legal and practical purposes a sentencing
Kingdom for reasons which are not in doubt. In exercise: see R (Anderson) v Secretary of State
the course of time it came to be seen as for the Home Department [2002] 3 WLR 1800,
inhumane to punish as if they were adults those pp 1812, 1822-1823, 1830, [2002] UKHL 46,
who had, when committing their crimes, been paras 24, 52, 74 and the authorities there cited.
children or young persons, not (in the eyes of the
law) fully mature adults. The nature of the The Constitution
sentence also is not open to doubt. It has, of 7. On 6 August 1962 Jamaica became an
course, a punitive purpose, appropriately enough independent state within the Commonwealth
where a person above the age of criminal upon the coming into force of the Constitution
responsibility has been convicted of a very grave scheduled to the Jamaica (Constitution) Order in
crime committed with the intent necessary to Council 1962 (SI 1962/1550). Jamaica
support conviction of murder. But a punitive thereupon became subject to a new legal order.
purpose would usually be served by a Section 2 of the Constitution summarised its
determinate term of confinement, whether longer effect:
or shorter, and a key feature of this sentence is
its indeterminacy: because the sentence is “Subject to the provisions of sections 49
indeterminate, account may be taken of the and 50 of this Constitution, if any other
youthful detainee’s progress and development as law is inconsistent with this
he or she matures, by means of periodic reviews, Constitution, this Constitution shall
and regard may be paid not only to retribution, prevail and the other law shall, to the
deterrence and risk but also to the welfare of the extent of the inconsistency, be void.”
young offender. If authority be needed for these
uncontroversial observations it may be found in Thus, subject to its terms, the Constitution was to
The State v O'Brien [1973] IR 50 at 72; R v be the supreme law of Jamaica. Section 49 lays
Secretary of State for the Home Department, Ex down long and detailed conditions for the
p Venables [1998] AC 407 at 498-500, 519-524, amendment of the Constitution. Section 50 lays
530-532; Browne v The Queen [2000] 1 AC 45 down conditions, although less exacting
at 47-49; V v United Kingdom (1999) 30 EHRR conditions, for the amendment of sections 13-26
121, para 110. It was a sentence of this character inclusive of the Constitution, being the sections
which was transplanted from the United which make up Chapter III.
Kingdom to Jamaica, and there is nothing to
suggest that the amendments made to section 29 8. It is unnecessary to repeat the detailed
as originally enacted on the effective substitution commentary on the Constitution given by Lord
of the Governor-General for Her Majesty were Diplock in Hinds v The Queen [1977] AC 195 at
intended to alter the character of the sentence. 211-214. The Constitution is divided into
chapters, several of these governing the
composition, powers and operation of different
6. It is also a key feature of this sentence in
organs of government. Among these are Chapter
Jamaica (although no longer in the United
IV, “The Governor-General”; Chapter V,
Kingdom) that the decision on release is
“Parliament”; Chapter VI, “Executive Powers”;

55
 Chapter VII, “The Judicature”; Chapter IX, “The (b) its reproduction in
Public Service”. The content of Chapter III is identical form in any
different. It is headed “Fundamental Rights and consolidation or revision
Freedoms” and lists a number of rights and of laws with only such
freedoms to be enjoyed by every person in adaptations or
Jamaica. The list is loosely based on the modifications as are
European Convention for the Protection of necessary or expedient by
Human Rights and Fundamental Freedoms reason of its inclusion in
(1953) (Cmd 8969), which had applied to such consolidation or
Jamaica while it remained a British colony, revision.”
although the provisions are differently ordered
and to some extent differently expressed. It will be noted that section 26(8) is general in its
application to “any law” in force before
9. Section 15(1)(b) of the Constitution independence and to “any of the provisions of
provides: this Chapter”. But some sections contain their
own specific saving provision. An example is
“(1) No person shall be deprived of his personal section 17, which in (1) provides that no one
liberty save as may in any of the following cases shall be subjected to torture or to inhuman or
be authorised by law – degrading punishment or other treatment and in
(b) in execution of the sentence or order of a court, (2) continues:
whether in Jamaica or elsewhere, in respect of a “(2) Nothing contained in or done
criminal offence of which he has been convicted; under the authority of any law shall be
...” held to be inconsistent with or in
contravention of this section to the
Section 20(1) provides: extent that the law in question
“(1) Whenever any person is charged with a authorises the infliction of any
criminal offence he shall, unless the charge is description of punishment which was
withdrawn, be afforded a fair hearing within a lawful in Jamaica immediately before
reasonable time by an independent and impartial the appointed day.”
court established by law.”
Chapter III ends, in section 26, with two 10. Section 4 of the Jamaica (Constitution)
subsections relevant to this appeal: Order in Council 1962, to which reference is
made in section 26(9)(a) of the Constitution,
“(8) Nothing contained in any law in quoted above, was designed to facilitate and
force immediately before the appointed legitimise the transition from the former colonial
day shall be held to be inconsistent with to the new independent legal order. Section 4(1)
any of the provisions of this Chapter; provides:
and nothing done under the authority of
any such law shall be held to be done in “All laws which are in force in Jamaica
contravention of any of these immediately before the appointed day
provisions. shall (subject to amendment or repeal
by the authority having power to amend
(9) For the purposes of subsection (8) of or repeal any such law) continue in
this section a law in force immediately force on and after that day, and all laws
before the appointed day shall be which have been made before that day
deemed not to have ceased to be such a but have not previously been brought
law by reason only of – into operation may (subject as
aforesaid) be brought into force, in
(a) any adaptations or accordance with any provision in that
modifications made behalf, on or after that day, but all such
thereto by or under laws shall, subject to the provisions of
section 4 of the Jamaica this section, be construed, in relation to
(Constitution) Order in any period beginning on or after the
Council 1962, or appointed day, with such adaptations
and modifications as may be necessary

56
 to bring them into conformity with the
provisions of this Order.” 12. No doubt mindful of the obstacle
presented by section 26(8), Mr Fitzgerald QC for
There follows a series of subsections providing the respondent (with the able support of Dr
that references to old office-holders and Lloyd Barnett for the intervening parties) based
institutions shall be understood as references to his primary attack on section 29 not on its
the new office-holders and institutions and then, incompatibility with the specific rights
in subsection (5)(a), a general although time- guaranteed by sections 15(1)(b) and 20(1) of
limited power is conferred on the Governor- Chapter III but on its incompatibility with the
General: separation of judicial from executive power
which was, as he contended, a fundamental
“(5)(a) The Governor-General may, by
principle upon which the Constitution was built.
Order made at any time within a period
This might at first sight seem an ambitious
of two years commencing with the
contention, but Mr Fitzgerald supported it by
appointed day and published in the
reference to the judgment of the Board, delivered
Gazette, make such adaptations and
by Lord Diplock, in Hinds v The Queen [1977]
modifications in any law which
AC 195. The main issue in that case concerned
continues in force in Jamaica on and
the constitutionality of a new court established
after the appointed day, or which having
by the Parliament of Jamaica under a post-
been made before that day, is brought
independence statute to try those accused of
into force on or after that day, as appear
firearms offences. There was however a
to him to be necessary or expedient by
subsidiary issue concerning the constitutionality
reason of anything contained in this
of two sections of the statute, one of which
Order.”
prescribed a mandatory penalty of detention at
hard labour during the Governor-General’s
It seems clear that section 4 had two
pleasure on conviction of certain offences, the
complementary objects: to ensure that existing
other of which provided for release only by the
laws did not cease to have force on the coming
Governor-General on the advice of a largely
into effect of the new legal order; and to provide
non-judicial review board. In his exposition of
a means by which existing laws could be
the principles underlying what he called “the
modified or adapted to ensure their conformity
Westminster model” of constitution, Lord
with the Constitution and preclude successful
Diplock referred (at page 212B) to “the basic
challenge on grounds of constitutional
concept of separation of legislative, executive
incompatibility.
and judicial power” and observed (at page
212D):
The first question: is section 29 compatible with
the Constitution of Jamaica? “It is taken for granted that the basic
principle of separation of powers will
11. Both the Director and the Solicitor-
apply to the exercise of their respective
General, who appeared with him, accepted at the
functions by these three organs of
hearing that, subject to their argument based on
government.”
section 26(8) of the Constitution, section 29 of
the Juveniles Act 1951 infringes the rights
He went on to observe (at page 213C):
guaranteed by, and so is inconsistent with,
sections 15(1)(b) and 20(1) of the Constitution. “What, however, is implicit in the very
Given this concession, rightly made, it is structure of a Constitution on the
unnecessary to do more than note the reason for Westminster model is that judicial
it. A person detained during the Governor- power, however it be distributed from
General’s pleasure is deprived of his personal time to time between various courts, is
liberty not in execution of the sentence or order to continue to be vested in persons
of a court but at the discretion of the executive. appointed to hold judicial office in the
Such a person is not afforded a fair hearing by an manner and on the terms laid down in
independent and impartial court, because the the Chapter dealing with the judicature,
sentencing of a criminal defendant is part of the even though this is not expressly stated
hearing and in cases such as the present sentence in the Constitution: Liyanage v The
is effectively passed by the executive and not by Queen [1967] 1 AC 259, 287-288.”
a court independent of the executive.

57
 the choice of alternative penalties was
(In the cited case the Board, construing the left to the executive.
Constitution of Ceylon and in particular Part 6
relating to “The Judicature”, regarded the ‘There is a clear distinction
contents of that Part as “inappropriate in a between the prescription of a
Constitution by which it was intended that fixed penalty and the selection of
judicial power should be shared by the executive a penalty for a particular case.
or the legislature”: page 287F). In considering The prescription of a fixed
the constitutionality of the sentencing provisions penalty is the statement of a
under challenge in Hinds, Lord Diplock general rule, which is one of the
recognised the power of Parliament to prescribe characteristics of legislation; this
maximum and minimum sentences by statute (at is wholly different from the
pages 225G-226D) but then continued: selection of a penalty to be
imposed in a particular case ...
“What Parliament cannot do,
The legislature does not
consistently with the separation of
prescribe the penalty to be
powers, is to transfer from the judiciary
imposed in an individual
to any executive body whose members
citizen’s case; it states the
are not appointed under Chapter VII of
general rule, and the application
the Constitution, a discretion to
of that rule is for the courts ... the
determine the severity of the
selection of punishment is an
punishment to be inflicted upon an
integral part of the
individual member of a class of
administration of justice and, as
offenders. Whilst none would suggest
such, cannot be committed to the
that a Review Board composed as is
hands of the executive ...’
provided in section 22 of the Gun Court
Act 1974 would not perform its duties
responsibly and impartially, the fact This was said in relation to the
remains that the majority of its members Constitution of the Irish Republic,
are not persons qualified by the which is also based upon the separation
Constitution to exercise judicial powers. of powers. In their Lordships’ view it
A breach of a constitutional restriction applies with even greater force to
is not excused by the good intentions constitutions on the Westminster model.
with which the legislative power has They would only add that under such
been exceeded by the particular law. If, constitutions the legislature not only
consistently with the Constitution, it is does not, but it can not, prescribe the
permissible for the Parliament to confer penalty to be imposed in an individual
the discretion to determine the length of citizen’s case: Liyanage v The Queen
custodial sentences for criminal [1967] 1 AC 259.”
offences upon a body composed as the
Review Board is, it would be equally Reference was then made to The State v O'Brien
permissible to a less well-intentioned [1973] IR 50, in which a somewhat similar
Parliament to confer the same discretion provision had been held to be unconstitutional.
upon any other person or body of It was held ([1977] AC 195 at pp 227H-228B)
persons not qualified to exercise judicial that the Jamaican provisions were inconsistent
powers, and in this way, without any with the provisions of the Constitution relating to
amendment of the Constitution, to open the separation of powers and so void by virtue of
the door to the exercise of arbitrary section 2 of the Constitution.
power by the executive in the whole
field of criminal law. In this connection 13. The Court of Appeal majority relied
their Lordships would not seek to heavily on the decision and reasoning in Hinds
improve on what was said by the when resolving his appeal in the respondent’s
Supreme Court of Ireland in Deaton v favour (see Downer and Bingham JJA at pp 6-13
Attorney-General and the Revenue and 41-46 of their respective judgments). It does
Commissioners [1963] IR 170, 182-183, indeed appear that the sentencing provisions
a case which concerned a law in which

58
under challenge in Hinds were held to be 4(1) of the Jamaica (Constitution) Order in
unconstitutional not because of their repugnancy Council 1962 (see paragraph 10 above) and on a
to any of the rights guaranteed by sections in passage of the Board’s judgment in Hinds v The
Chapter III of the Constitution but because of Queen [1977] AC 195 at 228A where Lord
their incompatibility with a principle on which Diplock said:
the Constitution itself was held to be founded.
“Section 29(1) of the Juveniles Law and
There appears to be no reason why (subject to
section 49 of the Criminal Justice
the other arguments considered below) the
(Administration) Law are of no
reasoning in Hinds does not apply to the present
assistance to the respondents’ argument.
case. It would no doubt be open to the Board to
They were passed before the law-
reject that reasoning, but it would be reluctant to
making powers exercisable by members
depart from a decision which has stood
of the legislature of Jamaica by an
unchallenged for 25 years, the more so since the
ordinary majority of votes were subject
decision gives effect to a very important and
to the restrictions imposed upon them
salutary principle. Whatever overlap there may
by the Constitution – though they were
be under constitutions on the Westminster model
subject to other restrictions imposed by
between the exercise of executive and legislative
the Colonial Laws Validity Act 1865.
powers, the separation between the exercise of
The validity of these two laws is
judicial powers on the one hand and legislative
preserved by section 4 of the Jamaica
and executive powers on the other is total or
(Constitution) Order in Council. No
effectively so. Such separation, based on the
law in force immediately before August
rule of law, was recently described by Lord
6, 1962, can be held to be inconsistent
Steyn as “a characteristic feature of
with the Constitution; and under section
democracies”: R (Anderson) v Secretary of State
26(8) of the Constitution nothing done
for the Home Department [2002] 3 WLR 1800,
in execution of a sentence authorised by
at 1821-1822, paragraph 50. In the opinion of
such a law can be held to be
the Board, Mr Fitzgerald has made good his
inconsistent with any of the provisions
challenge to section 29 based on its
of Chapter III of the Constitution. The
incompatibility with the constitutional principle
constitutional restrictions upon the
that judicial functions (such as sentencing) must
exercise of legislative powers apply
be exercised by the judiciary and not by the
only to new laws made by the
executive.
Parliament established under Chapter V
of the Constitution. They are not
The second question: is section 29 immune from retrospective.”
constitutional challenge? The Board finds this a puzzling passage. It does
14. The Director contended, in reliance on not appear from the summary of the respondents’
section 26(8) of the Constitution, that since argument in Hinds as reported that they placed
section 29 was a law in force immediately before reliance on section 29(1) of the Juveniles Act
independence it could not be held to be which, as a pre-independence law, was obviously
inconsistent with any of the provisions of distinguishable from the post-independence
Chapter III of the Constitution, including statute in issue. More significantly, the effect of
sections 15(1)(b) and 20(1). The validity of section 4 of the 1962 Order is not to preserve the
section 29 could not therefore be impugned, even validity of existing laws. As already pointed out
though it was inconsistent with those in paragraph 10 above, its effect is to continue
subsections. Subject to the argument considered existing laws in force, for reasons there given.
in paragraphs 18-19 below, that submission is Far from protecting existing laws against
plainly correct and explains the respondent’s constitutional challenge, section 4 recognises
reliance on the general separation of powers that existing laws may be susceptible to
challenge considered above. constitutional challenge and accordingly confers
power on the courts and the Governor-General
(among others) to modify and adapt existing
15. Since the respondent’s challenge did not
laws so as “to bring them into conformity with
depend primarily on incompatibility with any
the provisions of this Order”. It was not
provision of Chapter III of the Constitution,
suggested that “this Order” did not include the
section 26(8) could not be relied on by the
Constitution scheduled to it. Further, the Board
Director to defeat it. Instead he relied on section

59
cannot accept as accurate the statement “No law “qualifications, and exceptions” as well as
in force immediately before August 6, 1962, can “modifications” and “adaptations”, but it was to
be held to be inconsistent with the Constitution”. similar effect. Section 21 of the Belize
Nowhere in the Order or the Constitution is there Constitution provided blanket protection for
to be found so comprehensive a saving existing laws, limited to a period of five years.
provision, which would indeed undermine the In an appeal concerning compulsory acquisition
effect of section 2 of the Constitution. Section and compensation, Henry P said (at page 70):
26(8), as already noted, applies only to the
“[Section 21] does not, however, in my
provisions of Chapter III. Since the Board in
view, detract in any way from the power
Hinds was dealing with a post-independence
of a court either during the five-year
statute, Lord Diplock’s observations on the
period or afterwards to construe an
saving clauses in the Order and the Constitution
existing law ‘with such modifications,
were obiter, and in the opinion of the Board they
adaptations, qualifications, and
cannot be supported. Section 4(1) of the Order
exceptions as may be necessary’ to
cannot be relied on to defeat the respondent’s
bring it into conformity with the
challenge based on the separation of powers.
Constitution. At the same time the
modifications, etc., must be such only as
The third question: may the court modify or are necessary and a court must be wary
adapt section 29 and, if it may, should it do so of usurping the functions of Parliament
and to what effect? by introducing new and possibly
16. If the court has power to modify or adapt controversial legislation in the guise of
section 29 so as to make it conform with the a modification necessary to bring a
Constitution, such power can only derive from particular law into conformity with the
section 4(1) of the Order. The terms of section Constitution”.
4, read in isolation, would leave room for an
argument that the section is directed to the Liverpool JA (at p 86) spoke to similar effect:
correction of descriptions and nomenclature and
“Section 134(1) of the Constitution is
not to more far-reaching adaptations and
explicit in its requirement that existing
modifications. But such an argument would
laws must be construed with such
encounter two difficulties. First, it is now well-
modifications, adaptations,
established that constitutional provisions relating
qualifications and exceptions as may be
to human rights should be given a generous and
necessary to bring them into conformity
purposive interpretation, bearing in mind that a
with the Constitution; and it is
constitution is not trapped in a time-warp but
acknowledged that the Land Acquisition
must evolve organically over time to reflect the
(Public Purposes) Act is an existing law.
developing needs of society: see Reyes v The
In my view, the permitted modifications
Queen [2002] 2 AC 235, [2002] UKPC 11, paras
transcend those of nomenclature,
25-26 and the authorities there cited. Secondly,
reaching matters of substance and
it is plain from authority that provisions similar
stopping only where the conflict
to section 4(1) have not in practice been applied
between the existing law and the
in a narrow and restricted way.
Constitution is too stark to be modified
by construction.”
17. Five authorities call for brief mention. In
Kanda v Government of the Federation of
In Vasquez v The Queen [1994] 1 WLR 1304,
Malaya [1962] AC 322 the Board applied article
finding an inconsistency between the Criminal
162(1) of the Constitution of Malaya, which was
Code and the Constitution of Belize relating to
in terms similar although not identical to those of
the burden of proving or disproving provocation,
section 4(1), to rectify an inconsistency between
the Board relied on section 134(1) to rectify the
an existing law and the Constitution concerning
anomaly. The issue in Browne v The Queen
the power to dismiss police officers. The clause
[2000] 1 AC 45 was very similar to that in the
of the Constitution of Belize which the Court of
present case. The Saint Christopher and Nevis
Appeal of Belize was called upon to consider in
Constitution Order 1983 contained, in paragraph
San José Farmers’ Co-operative Society Ltd v
2(1) of Schedule 2, a provision similar in effect
Attorney-General (1991) 43 WIR 63 was more
to section 134(1) of the Belize Constitution.
elaborate than section 4(1) in referring to

60
Section 3(1) of the Offences against the Person Daly’s submission that the section
Act (cap 56) 1873 (as amended) provided that a should be regarded as conferring very
person convicted of committing a murder, if limited powers is, I am afraid, a brave
aged under 18 when committing the offence, but unavailing attempt to turn the clock
should be sentenced to detention during the back.”
Governor-General’s pleasure. The Board held
that sentencing provision to be incompatible with In the light of this authority the Board concludes,
the Constitution, as infringing the separation of in agreement with the majority of the Court of
powers, and, in the absence of any general Appeal, that section 4(1) gives the court power
provision saving the validity of existing laws, to modify section 29 so as to bring it into
exercised the power conferred by paragraph 2(1) conformity with the constitution. This is not a
to hold (at page 50G) that the sentence which the case (and the Director did not contend that it
appellant “should have received was detention was) in which no modification could be made
during the court’s pleasure”. Reference should which would produce an acceptable and
finally be made to Roodal v The State workable solution or which, as was held to be the
(unreported) (17 July 2002) (CRA No 64 of 99), case in Roodal, would amount to an
a case before the Court of Appeal of Trinidad inappropriate exercise of legislative authority in
and Tobago concerning the constitutionality of a field offering several policy choices. The
the mandatory death penalty, although, since nature and purpose of the sentence of detention
leave to appeal against the Court of Appeal’s during the Governor-General’s pleasure are
decision has been granted, the Board would not clear, as explained above. The only question is
wish to be understood to express any view on the who should decide on the measure of
decision itself. Section 5(1) of the Constitution punishment the detainee should suffer. Since the
of the Republic of Trinidad and Tobago Act vice of section 29 is to entrust this decision to the
1976 was in terms somewhat similar to section executive instead of the judiciary, the necessary
4(1) and other comparable provisions considered modification to ensure conformity with the
above, and in a judgment of the court de la Constitution is (as in Browne v The Queen
Bastide CJ reviewed all the authorities [2000] 1 AC 45) to substitute “the court’s” for
mentioned above (and others), giving a summary “Her Majesty’s” in subsection (1) and “the
which fully merits quotation: court” for each reference to “the Governor-
“Having made this review of the General” in subsection (4).
authorities, we are now in a position to
assess the purport and effect of section 18. As a fall-back argument, in case his
5(1) of the 1976 Act. The first thing we submission on the separation of powers was not
can say about that section is that though accepted, Mr Fitzgerald contended that section
it speaks of existing laws being 4(1) could be relied on to modify section 29 even
‘construed’, the type of ‘construing’ if the only ground of challenge rested on that
which is involved is not the examination section’s incompatibility with sections 15(1)(b)
of the language of existing laws for the and 20(1) of the Constitution. He contended that
purpose of abstracting from it their true it was first necessary to identify an inconsistency
meaning and intent nor is it attributing with the Constitution, which would not involve
to existing laws a meaning which, “holding” any provision to be inconsistent. It
though not their primary or natural might then be possible to modify the existing law
meaning, is one that they are capable of by application of section 4(1) so as to preserve
bearing. In fact, the function which the its substantial effect while removing the
court is mandated to carry out in inconsistency. Section 26(8) would only apply
relation to existing laws under this when the existing law could not be modified so
section, goes far beyond what is as to be brought into conformity with the
normally meant by ‘construing’. It may Constitution. This approach, it was suggested,
involve the substantial amendment of was consistent with section 26(9)(a) (quoted in
laws, either by deleting parts of them or paragraph 9 above), which envisaged that section
making additions to them or substituting 26(8) might have effect after “any adaptations or
new provisions for old. It may extend modifications” made to an existing law under
even to the repeal of some provision in section 4(1). Thus no attack could be based on
a statute or a rule of common law. Mr. the requirement in section 29 that a defendant

61
convicted of a murder committed when under the is, in the opinion of the Board, no answer. The
age of 18 should be sentenced to an cross-appeal therefore succeeds. The sentence of
indeterminate term of detention, which might life imprisonment must be quashed and a
potentially be life-long; but the court could be sentence of detention during the court’s pleasure
substituted for the Governor-General without substituted. It is not for the Board to prescribe
undermining the essential nature and purpose of how that sentence should be administered in
the sentence. If this amendment were first made order to give effect not only to the requirement
to ensure conformity with the Constitution, that the offender be punished but also to the
section 26(8) would not stand in the respondent’s requirement that the offender’s progress and
way. development in custody be periodically reviewed
so as to judge when, having regard to the safety
19. The Board has given anxious of the public and also the welfare of the offender,
consideration to this ingenious argument. The release on licence may properly be ordered. The
thrust of section 2 of the Constitution is to Director considered that a suitable regime could
invalidate laws inconsistent with the be devised without undue difficulty, and the
Constitution. The rights guaranteed by the Board shares his confidence.
sections in Chapter III were intended to be
enjoyed by the people of Jamaica. Provisions Section 29(3) of the Juveniles Act 1951
derogating from such rights should receive a
22. In the closing stages of argument,
strict and narrow rather than a broad
reference was made to section 29(3) of the
construction: R v Hughes [2002] 2 AC 259,
Juveniles Act 1951 which, although not
[2002] UKPC 12, para 35. A modification
applicable to the respondent, calls for brief
which preserves the essential purpose of the
comment. As amended, the subsection reads:
challenged provision while achieving conformity
with the Constitution is one that it would be “(3) Where a young person is
legally desirable to make. The Board would not convicted of an offence specified in the
wish to reject this argument, in which it sees Third Schedule and the court is of
very considerable force, but since it is opinion that none of the other methods
unnecessary for the respondent to succeed on it in which the case may legally be dealt
in order to resist the appeal no final view need be with is suitable, the court may sentence
expressed. the offender to be detained for such
period as may be specified in the
The fourth question: should the sentence of life sentence. Where such a sentence has
imprisonment stand? been passed the young person shall,
during that period notwithstanding
20. Having ruled that “the court’s pleasure” anything in the other provisions of this
should be substituted for “the Governor- Act, be liable to be detained in such
General’s pleasure”, the Court of Appeal place (including an adult correctional
majority ruled that the respondent be imprisoned centre) and on such conditions as the
for life and that he be not considered for parole Minister may direct and while so
until he had served a term of 20 years’ detained shall be deemed to be in legal
imprisonment. This is the subject of the custody.”
respondent’s cross-appeal. His point is a short
one. A sentence of imprisonment for life is a
The terms of this subsection are closely
sentence of a different nature from a sentence of
modelled on, but are not identical to, those of
indefinite detention specifically designed to
section 53(2) of the (British) Children and
address the special circumstances of those
Young Persons Act 1933 as originally enacted.
convicted of murders committed under the age of
For purposes of both subsections “young person”
18. Substitution of the court for the Governor-
was defined to mean a person who has attained
General should not lead to a change, and a
the age of 14 years and was under the age of 17
change disadvantageous to the detainee, in the
(section 107(1) of the 1933 Act, section 2 of the
punishment imposed.
1951 Act). Under each statute it is the age at
date of conviction which is relevant; the
21. The Board did not understand the amendment made to section 29(1) following
Director to resist this argument, to which there Baker v The Queen [1975] AC 774 was not made

62
to section 29(3). But there is one significant Ordinance was not a law in force at the
difference between the two subsections. Section commencement of the Trinidad and Tobago
53(2) was inapplicable to any offence the (Constitution) Order in Council, 1962, and was
sentence of which was fixed by law. By therefore not exempted from the protective
contrast, section 29(3) was expressed to apply to restraints imposed by the Constitution upon the
any offence specified in the Third Schedule to abrogation, abridgement or infringement of the
the Act. One of the offences so specified was declared human rights and fundamental
murder, for which section 29(1) would appear freedoms;(b) that the Emergency Powers
(unless qualified by section 29(3)) to require Ordinance or at least the material provisions
imposition of a sentence of detention during Her thereof were impliedly repealed by the operation
Majesty’s pleasure, a sentence fixed by law. of ss 4 and 8 of the Constitution;(c) that in any
Since the respondent was aged 19 when event the Governor-General did not validly
sentenced, section 29(3) cannot apply to him, exercise the power vested in him by the
and in the absence of full argument the Board is Ordinance in that he failed to specify whether the
unwilling to express a final conclusion. It would declared emergency was intended to deal either
however appear that if a defendant is convicted (i) with action taken or (ii) action immediately
of murder and is aged 14-16 at the time of threatened as to be likely to endanger the public
conviction, the trial judge may either impose a safety or to deprive the community of any of the
sentence of detention during the court’s pleasure essentials of life; and (d) that pursuant to the
under section 29(1) or a sentence of detention for provisions of the Constitution, the Ordinance had
a specified period under section 29(3). This was to be construed with certain modifications,
the construction put upon section 29(3) by adaptations, qualifications and exceptions and
Downer JA at p 34 of his judgment. It would not accordingly reg 7 (1) made under the Ordinance
seem that this choice was available in the case of was unenforceable because it was shown not to
any of the intervening parties, all of whom the be reasonably justifiable for the purpose of
Board understands to have been over 17 at the dealing with the situation which existed during
date of conviction. the declared emergency.

23. The Board will humbly advise Her

Majesty that this appeal should be dismissed, Held: (i) the expression “law in force” in s 3 of
that the cross-appeal should be allowed, that the the Constitution is to be equated with the
sentence of life imprisonment be quashed, that a expression “existing law” in s 4 of the Order in
sentence of detention during the court’s pleasure Council and both expressions comprehend an
be substituted and that the release of the enactment which by reason of its own
respondent be determined by the court in commencement prior to the commencement of
accordance with section 29(4) of the Juveniles the Constitution had come into existence as a law
Act 1951 as modified in accordance with this and which by reason of its non-repeal or non-
opinion. expiry has continued to exist as a law;

(ii) that the whole of the Emergency Powers

Modification clauses Ordinance was a law in force at the
commencement of the Constitution and was thus
Beckles v Dellamore (1965) 9 WIR 299. exempted by s 3 from its protective restraints;

The appellant B was charged with having in his (iii) that neither the Ordinance nor any part
possession in a protected area documents of such thereof was impliedly repealed by the
a nature that the dissemination of copies thereof Constitution;
was likely to cause disaffection among persons
in the protected area. This act was alleged to (iv) that as regards the measures which may or
contravene reg 7 (1) of the Emergency may not be reasonably justifiable, it is
Regulations, 1965, which were made by the immaterial whether the situation with which they
Governor-General under s 4 of the Emergency are designed to deal arises from action which is
Powers Ordinance, Cap 11, No 10 [T]. He was already taken or action which is immediately
convicted by a magistrate. On appeal it was threatened. So long, therefore, as it is either the
contended (a) that s 4 of the Emergency Powers one or the other and it appears to the Governor-

63
General that by reason thereof a state of prescribed majority in each House and expressly
emergency exists, the proclamation will be declaring that they shall have effect
warranted; notwithstanding the restraints, except insofar as
their provisions may be shown not to be
(v) although reg 7 (1) of the Regulations must be reasonably justifiable in a society that has a
held to be void if it is shown not to be reasonably proper respect for the rights and freedoms of the
justifiable for dealing with the situation then individual (see s 5). A period of public
existing, the appellant, upon whom the onus emergency is defined by s 8 (1) in the terms
rested, failed to show that the regulation was not hereinbefore quoted, and two of its three
justifiable. prescriptions are such as can leave no doubt in
anyone’s mind what the character of the
WOODING CJ. emergency is. As regards the third–a
proclamation by the Governor-General, s 8 (2)
Pages 306B – 307 E conditions its effectiveness on the declaration he
is required to make therein. It is to me patent
Nothing is expressly enacted in the that all these provisions are intended to subserve
Ordinance requiring a proclamation made the liberty by which it is open to anyone to
thereunder to declare why it appears to the challenge the validity of any enactment as
Governor-General that a state of emergency abrogating, abridging or infringing the rights and
exists. But it is necessary to consider to what freedoms which the chapter is designed to
extent, if at all, s 4 of the Order has affected the protect. Thus it is made clear that, in the case of
relevant enactments of the Ordinance. That a law in force at the commencement of the
section provides that a law in force at the Constitution, no question can be raised except
commencement of the Constitution (what it calls insofar as it relates to the modifications,
on “existing law”) must be construed with such adaptations or qualifications with which it
modifications, adaptations, qualifications and becomes necessary to construe the law so as to
exceptions as may be necessary to bring it into bring it into conformity with the Order. In the
conformity with the Order. And, as I have case of an Act such as falls within s 5, the
pointed out, the Constitution is an integral part of touchstone supplied by the section itself suffices
the Order. The question therefore is whether the for assessing whether any of its provisions are
Ordinance is to be construed as so modified, invalid. But since in the case of an Act within s
adapted or qualified and, if yea, whether it now 4 it is impracticable to challenge any provision
obliges the Governor-General to declare why it as being not reasonably justifiable for dealing
appears to him (and, if so, in what terms) that a with a situation unless the character of the
state of emergency exists. situation is known, s 8 provides the means of
As has already been noted, s 8 (2) of the knowing what its character is. Having regard
Constitution renders a proclamation by the therefore to the care thus taken to ensure that no
Governor-General ineffective for the purposes of one should be left in any doubt such as might
sub-s (1) of that section unless it is declared prejudice him in challenging an enactment by the
therein that he is satisfied in terms either of para supreme authority which Parliament is, it would
(a) or of para (b) of sub-s (2). The reason for in my judgment be incongruous not to construe
this is to be found, I think, in the scheme of the Ordinance with such modifications,
Chapter 1 of the Constitution. That chapter, it adaptations or qualifications as will (a) make it
will be recalled, is protective of the human rights necessary for the Governor-General to disclose
and fundamental freedoms which it recognises in any proclamation he may make under s 2 (1)
and declares. But exempted from its protective the character of the situation which has led him
restraints are: laws in force at the to declare that a state of emergency exists, and
commencement of the Constitution (see s 3); (b) invalidate any regulation he may make and
Acts of Parliament passed during a period of publish under s 4 if it is shown not to be
public emergency and expressly declared to have reasonably justifiable for dealing therewith.
effect only during that period, except insofar as I have referred to the character of the
their provisions may be shown not to be situation and I have done so advisedly. The
reasonably justifiable for the purpose of dealing modifications, adaptations or qualifications with
with the situation existing during that period (see which the Ordinance must be construed are such
s 4); and Acts of Parliament passed by a only as are necessary to bring it into conformity
with the Order. The operative word is

64
“necessary”. And conformity must have in view Executive under the Ordinance there is no
the objects which the Order is intended to qualification of the kind stipulated by the
maintain, promote or achieve. A clear Constitution as being applicable to an Act of
distinction between paragraphs (a) and (b) of s 8 Parliament passed to deal with emergencies,
(2) of the Constitution is that danger to the body namely, that the validity of such an Act shall not
politic is envisaged by the one from without and extend to provisions thereof which are shown
by the other from within. This is important since “not to be reasonably justifiable for the purpose
what may not be reasonably justifiable for the of dealing with the situation” that exists during a
purpose of dealing with danger from within may period of emergency.
well be warranted for dealing with danger from The general principles that are applicable to
without. In this regard, compulsory military the question under consideration are stated in
service springs immediately to mind. But it can Craies On Statute Law (6th Edn), pp 365-366 as
make no difference whatever to the kind of follows:
measures which may or may not be reasonably
justifiable whether the situation with which they ‘Where two Acts are inconsistent or
are designed to deal arises from action which is repugnant, the later will be read as having
already taken or action which is immediately impliedly repealed the earlier. The court
threatened. The purposes of Chapter 1 of the leans against implying a repeal; unless two
Constitution are accordingly in no way assisted Acts are so plainly repugnant to each other
if a proclamation by the Governor-General that effect cannot be given to both at the
declaring the existence of a state of emergency same time, a repeal will not be implied....
fails to differentiate between action taken and Before coming to the conclusion that there
action immediately threatened. So long as it is is a repeal by implication the courts must
either the one or the other and it appears to the be satisfied that the two enactments are so
Governor-General that by reason thereof a state inconsistent or repugnant that they cannot
of emergency exists, not only will the stand together before they can, from the
proclamation be warranted, but also notification language of the later, imply the repeal of an
to that effect will suffice to facilitate inquiry express prior enactment, ie, the repeal
whether any regulation he may publish for must, if not express, flow from necessary
dealing therewith is reasonably justifiable or not. implication.’
I can find no vice therefore in the alleged
ambiguity. To the same effect is the following statement to
be found in Maxwell On Interpretation Of
Phillips J.A. Statutes (11th Edn), p 162:
Page 316 C – 317D
‘But repeal by implication is not
Counsel, however, put forward the favoured. A sufficient Act ought not to be
alternative submission that, on the assumption held to be repealed by implication without
that the Ordinance was an existing law at the some strong reason. It is a reasonable
date when the Order in Council came into force, presumption that the legislature did not
it was repealed on that date by the combined intend to keep really contradictory
effect of ss 4 and 8 of the Constitution, the terms enactments on the Statute Book, or, on the
of which have been set out above. The argument other hand, to effect so important a
on this point was to the effect that the limitations measure as the repeal of a law without
imposed by those sections in connection with the expressing an intention to do so. Such an
passing and operation of emergency legislation interpretation, therefore, is not to be
are so completely at variance with the scheme of adopted unless it be inevitable. Any
the Ordinance, which, it was said, gave reasonable construction which offers an
absolutely arbitrary and unfettered powers to the escape from it is more likely to be in
Executive, that the coming into force of those consonance with the real intention.’
sections of the Constitution has the effect of
impliedly repealing the Ordinance, the continued In addition to these general principles of
existence of which, it was contended, would construction it is in the present case necessary to
make a sham and mockery of the Constitution. consider the effect of the express provisions of s
In this connection it was (inter alia) pointed out 4, sub-ss (1),(2) and (3) of the Order in Council,
that in the case of the powers exercisable by the which are in the following terms:

65
 ‘4.(1) Subject to the provisions of this Regulation 3 of the Emergency Powers
section, the operation of the existing laws Regulations 1967 provides:
after the commencement of this Order shall
not be affected by the revocation of the "Detention of Persons. (1) If the Governor is
existing Order but the existing laws shall satisfied that any person has recently been
be construed with such modifications, concerned in acts prejudicial to the public safety,
adaptations, qualifications and exceptions or to public order or in the preparation or
as may be necessary to bring them into instigation of such acts, or in impeding the
conformity with this Order. maintenance of supplies and services essential to
(2) The Governor-General may by order the life of the community and that by reason
made at any time before the 31st August thereof it is necessary to exercise control over
1963 make such amendment to any existing him, he may make an order against that person
law as may appear to him to be necessary directing that he be detained."
or expedient for bringing that law into
conformity with the provisions of this The Constitution of St. Christopher, Nevis and
Order or otherwise for giving effect or Anguilla1 ("the state") came into effect on
enabling effect to be given to those February 27, 1967. It provided, inter alia, that no
provisions. person should be deprived of personal liberty
(3) Where any matter that falls to be save as authorised by law (section 3 (1)) and
prescribed or otherwise provided for under gave a right of compensation for unlawful
this Order by Parliament or by any other detention (section 3 (6)); but section 14 stated
authority or person is prescribed or that nothing done under the authority of a law
provided for by or under an existing law should be held to be inconsistent with or in
(including any amendment to any such law contravention of section 3 to the extent that the
made under this section) or is otherwise law authorised the taking, during a period of
prescribed or provided for immediately public emergency of measures that were
before the commencement of this Order, by reasonably justifiable for dealing with the
or under the existing Order, that situation. A right of application to the High
prescription or provision shall, as from the Court was provided under section 16 for the
commencement of this Order, have effect redress of certain violations of the Constitution.
as if it had been made under this Order by Some provisions, including section 16, were
Parliament or, as the case may be, by the entrenched by section 35 which required a
other authority or person.’ referendum to be held before any Bill effecting
alterations to those provisions was submitted to
The manifest intention of these provisions the Governor for his assent. Existing laws were
is, in my judgment, to make every effort to required by section 103 (1) to be construed with
prevent the implied repeal of existing laws and to such modifications, adaptations, qualifications
secure the continuance of their validity in so far and exceptions as were necessary to bring them
as it is possible to make them conform with the into conformity with the Constitution. Section
provisions of the Constitution. 108 expressly provided that the Leeward Islands
(Emergency Powers) Order in Council 1959
Attorney General St Kitts & Nevis v Reynolds would cease to have effect on September 1,
[1980] 2 WLR 171 1967.

Section 3 of the Leeward Islands (Emergency On May 30, 1967, the Governor proclaimed a
Powers) Order in Council 1959 provides: state of emergency and made the Emergency
Powers Regulations 1967 under section 3 (1) of
"(1) The administrator of a colony to which this the Order in Council of 1959. On June 10 the
Order applies may, during a period of emergency Governor made an order under regulation 3 (1)
in that colony, make such laws for the colony as of the regulations that the plaintiff (a retired
appear to him to be necessary or expedient for inspector of police) be detained. On June 11 the
securing the public safety, the defence of the plaintiff was arrested. He was imprisoned in
colony or the maintenance of public order or for humiliating and insanitary conditions. On June
maintaining supplies and services essential to the 16 a written statement was served on him under
life of the community" section 15 of the Constitution which required

66
that he be furnished with a statement "specifying Council from such modifications and
in detail" the grounds on which he was detained. adaptations; and that, accordingly, section 3 (1)
It stated that he had during 1967, both within and of the Order in Council properly construed in
outside the state, encouraged civil disobedience accordance with section 103 (1) and in the light
throughout the state, thereby endangering the of section 14 of the Constitution provided that
peace, public safety and public order of the state. the Governor of a state might during a period of
In July at an inquiry into the plaintiff's detention public emergency in that state make such laws
the state conceded that it had no evidence against for securing the public safety or defence of the
him. On August 10 he was released. In January state or the maintenance of public order or for
1968 the legislature passed the Indemnity Act maintaining supplies and services essential to the
1968, section 3 of which precluded the life of the community, to the extent that those
institution of legal proceedings in respect of acts laws authorised the taking of measures that were
done in the public interest during the state of reasonably justifiable for dealing with the
emergency. The Act was expressed to be situation which existed during the emergency;
retroactive to May 30, 1967. In February 1968 and that, therefore, on May 30, 1967, the
the plaintiff brought an action against the Governor had had power under the Order in
Attorney-General claiming (1) damages for false Council to make the Emergency Powers
imprisonment, and (2) compensation for Regulations 1967.
unlawful detention under section 3 of the
Constitution. Charles v. Phillips and Sealey (1967) 10 W.I.R.
423 and Herbert v. Phillips and Sealey (1967) 10
The High Court gave judgment for the plaintiff W.I.R. 435 overruled in part.
for £5,000. On appeal by the Attorney-General
and cross-appeal by the plaintiff as to the amount (2) That the validity of the Emergency Powers
of the damages, the Court of Appeal held first, Regulations 1967 depended on the construction
that section 3 (1) of the Leeward Islands to be given to the opening words of regulation 3
(Emergency Powers) Order in Council 1959 was (1) "If the Governor is satisfied" and those words
not in conformity with the Constitution and should be construed consistently with the
could not be so construed under the provisions of modified meaning of section 3 (1) of the Order
section 103 of the Constitution and that therefore in Council of 1959 and with sections 3 and 14 of
the Emergency Powers Regulations 1967 were the Constitution; that on its true construction
void and the plaintiff's detention unlawful; and, regulation 3 (1) meant that if the Governor was
secondly, that sections 3 and 5 of the Indemnity satisfied that any person had recently been
Act 19682 were contrary to section 16 of the concerned in acts prejudicial to the public safety
Constitution and void and accordingly afforded or to public order and that by reason thereof it
no protection against the plaintiff's action. The was reasonably justifiable and necessary to
court dismissed the Attorney General's appeal exercise control over him, he could make an
and increased the amount of the damages to order against that person directing that he be
$18,000 to include "a small sum as exemplary detained, and that so construed regulation 3 (1)
damages." conformed with the Constitution; but that since
the statement given to the plaintiff on June 16
On the Attorney-General’s appeal to the Judicial gave no details of any reasonable ground on
Committee: which the Governor had detained him and there
was no other evidence of any such ground, on
Held, dismissing the appeal, (1) that after the the facts, there was an irresistible presumption
Constitution came into effect the Leeward that no reasonable grounds existed, so that the
Islands (Emergency Powers) Order in Council detention order was invalid and the plaintiff's
1959 did not continue in force as originally detention was unlawful.
promulgated but was confirmed as an existing
law which, by virtue of section 103 (1) of the Per Lord Salmon, at pgs 181-182:
Constitution, had to be construed in accordance
with any modification, adaptation, qualification “In Charles v. Phillips and Sealey, 10 W.I.R.
or exception necessary to bring it into 423 and in Herbert v. Phillips and Sealey, 10
conformity with the Constitution; that the W.I.R. 435 the Court of Appeal held (1) that the
express provision in section 108 for the expiry of provisions of section 3 of the Leeward Islands
the Order in Council did not protect the Order in (Emergency Powers) Order in Council 1959

67
were not in conformity with the Constitution, Their Lordships are of opinion that the Order in
and (2) that they were so much out of Council should be construed, in accordance with
conformity, that it was impossible to construe section 103 (1) and in the light of section 14 of
them so as to bring them into conformity with the Constitution, as follows:
the Constitution: and that, therefore, the
Emergency Powers Regulations 1967, which "The Governor of a state may, during a period of
purported to be made under that Order in public emergency in that state, make such laws
Council, were invalid. Their Lordships agree for securing the public safety or defence of the
with the first part of that finding but not with the state or the maintenance of public order or for
second. maintaining supplies and services essential to the
life of the community to the extent that those
The law laid down by section 3 of the Order in laws authorise the taking of measures that are
Council of 1959 (as it originally stood) and by reasonably justifiable for dealing with the
section 14 of the Constitution had the same situation that exists in the state during any such
purpose - namely, to ensure that measures could period of public emergency."
immediately be taken during a state of public
emergency, to arrest and detain persons whom it Reyes v The Queen [2002] 2 WLR 1034
was necessary to arrest and detain in order to
secure public safety or public order. The The defendant was convicted on two counts of
difference between the two laws was that the murder by shooting, which by section 102(3)(b)
first law gave an authority absolute discretion. of the Criminal Code of Belize1 was classified as
and indeed the power of a dictator, to arrest and a class A murder. Pursuant to section 102(1),
detain anyone, whilst section 14 of the which prescribed a mandatory death penalty for
Constitution allows a law to be enacted class A murder, he was sentenced to death on
conferring power to arrest and detain only if it each count. By the proviso to section 102(1) in
was reasonably justifiable to exercise such a the case of a murder classified as class B the
power. It is this very real difference which court might, where there were special
makes the Order in Council of 1959 out of tune extenuating circumstances, refrain from
with the Constitution. If the Court of Appeal imposing a death sentence and instead pass a
were right in concluding that no modification or sentence of life imprisonment. The defendant's
adaptation or qualification or exception could appeal against conviction and sentence was
bring the Order in Council into line with the dismissed by the Court of Appeal of Belize. The
Constitution, then they would have been plainly Judicial Committee of the Privy Council
right in holding that the Order in Council was dismissed his petition for special leave to appeal
nugatory and the Emergency Powers Regulations against conviction but granted leave to appeal
1967 invalid Their Lordships cannot, however, against sentence so that he could challenge the
accept that the Constitution would have constitutionality of the mandatory death penalty
preserved the life of the Order in Council of for class A murder on the ground, among others,
1959 for any period if the Order in Council could that it infringed his right not to be subjected to
not be construed under section 103 of the inhuman or degrading punishment or other
Constitution so as to bring it into conformity treatment, contrary to section 7 of the
with the Constitution. It is inconceivable that a Constitution of Belize2. By section 2 any law
law which gave absolute power to arrest and inconsistent with the Constitution was void to
detain without reasonable justification would be the extent of the inconsistency.
tolerated by a Constitution such as the present,
one of the principal purposes of which is to On the defendant's appeal against sentence to the
protect fundamental rights and freedoms. Their Judicial Committee—
Lordships do not consider that there is any
difficulty in construing the Order in Council by Held, allowing the appeal, that since the
modification, adaptation, qualification, or character of the offence of murder by shooting
exception so as to bring it into conformity with could vary widely the imposition of the death
the Constitution. As stated in the judgment of penalty for some such offences would be plainly
their Lordships' Board in Minister of Home excessive and disproportionate, and so to deny a
Affairs v. Fisher [1979] 2 W.L.R. 889, a person convicted of murder by shooting the
Constitution should be construed with less opportunity to seek to persuade the court, before
rigidity and more generosity than other Acts. sentence was passed, that in all the

68
circumstances to condemn him to death would of a firearm legitimately owned for no criminal
be disproportionate and inappropriate would be or aggressive purpose) in which the death
to treat him as no human being should be treated penalty would be plainly excessive and
and thus to deny his basic humanity; that section disproportionate. In a crime of this kind there
102 of the Criminal Code, in requiring a may well be matters relating both to the offence
mandatory sentence of death to be passed on the and the offender which ought properly to be
defendant on conviction of murder by shooting considered before sentence is passed. To deny
and thereby precluding any judicial consideration the offender the opportunity, before sentence is
of the humanity of condemning him to death, passed, to seek to persuade the court that in all
therefore subjected him to inhuman or degrading the circumstances to condemn him to death
punishment or other treatment incompatible with would be disproportionate and inappropriate is to
the right afforded to him by section 7 of the treat him as no human being should be treated
Constitution; that that constitutional defect in the and thus to deny his basic humanity, the core of
sentencing process could not be remedied by the the right which section 7 exists to protect.
subsequent opportunity to seek mercy from the Section 102(3)(b) of the Criminal Code is,
executive pursuant to sections 52 and 53 of the accordingly, to the extent that it refers to "any
Constitution; that section 102(3)(b) of the Code, murder by shooting" inconsistent with section 7
to the extent that it indiscriminately referred to of the Constitution. The category in
any murder by shooting, was thus void by virtue indiscriminate. By virtue of section 2 of the
of section 2 of the Constitution, and, in Constitution subsection (3)(b) is to that extent
accordance with section 134(1) of the void. It follows that any murder by shooting is
Constitution, any murder by shooting was to be to be treated as falling within class B as defined
treated as a class B murder as defined in section in section 102(3) of the Criminal Code. This is
102(3) of the Code; and that, accordingly, the sanctioned by section 134(1) of the Constitution,
death sentences would be quashed and the case which provides:
remitted to a judge of the Supreme Court of
Belize to pass appropriate sentence on the "Subject to the provisions of this Part, the
defendant after hearing or receiving any existing laws shall notwithstanding the
evidence and submissions on his behalf. revocation of the Letters Patent and the
Constitution Ordinance continue in force on and
Per Lord Bingham, at pgs. 1055-1056: after Independence Day and shall then have
effect as if they had been made in pursuance of
“For purposes of this appeal the Board need not this Constitution but they shall be construed with
consider the constitutionality of any mandatory such modifications adaptations qualifications and
penalty other than death, nor the constitutionality exceptions as may be necessary to bring them
of a mandatory death penalty imposed for any into conformity with this Constitution."
murder other than by shooting. In the absence of
adversarial argument it is undesirable to decide NOTE: Section 102 of the Criminal Code of
more than is necessary to resolve this appeal. Belize originally provided: "Every person who
The Board is however satisfied that the provision commits murder shall suffer death." In 1994
requiring sentence of death to be passed on the section 102 of the Code was amended by adding
defendant on his conviction of murder by to it the following proviso:
shooting subjected him to inhuman or degrading
punishment or other treatment incompatible with "Provided that in the case of a class B murder
his right under section 7 of the Constitution in (but not in the case of a class A murder), the
that it required sentence of death to be passed court may, where there are special extenuating
and precluded any judicial consideration of the circumstances which shall be recorded in
humanity of condemning him to death. The use writing, and after taking into consideration any
of firearms by dangerous and aggressive recommendations or plea for mercy which the
criminals is an undoubted social evil and, so long jury hearing the case may wish to make in that
as the death penalty is retained, there may well behalf, refrain from imposing a death sentence
be murders by shooting which justify the and in lieu thereof shall sentence the convicted
ultimate penalty. But there will also be murders person to imprisonment for life."
of quite a different character (for instance,
murders arising from sudden quarrels within a The section was further amended by adding inter
family, or between neighbours, involving the use alia the following further subsection:

69
"(3) For the purpose of this section—'class A “In these circumstances their Lordships will
murder' means:—(a) any murder committed in follow their decision in Reyes's case [2002] 2
the course or furtherance of theft; (b) any murder WLR 1034 and will accordingly hold that
by shooting or by causing an explosion; section 2 of the 1873 Act is inconsistent with
…..'class B murder' means any murder which is section 7 of the Constitution to the extent that it
not a class A murder." requires the court to impose the death penalty
whenever someone is convicted of murder. The
It was because the murders committed by the death sentence imposed on the defendant under
defendant fell within subsection (3)(b) that section 2 must therefore be quashed and the
imposition of the death sentence was mandatory. matter remitted to the High Court for the judge to
determine the appropriate sentence, having
Fox v The Queen [2002] 2 WLR 1077 regard to all the circumstances of the case.

The defendant was convicted in the High Court 11 Paragraph 2(1) of Schedule 2 to the Order
of Saint Christopher and Nevis on two counts of provides:
murder. He was sentenced to death on each
count pursuant to section 2 of the Offences "The existing laws shall, as from 19 September
against the Person Act 1873, which prescribed a 1983, be construed with such modifications,
mandatory death sentence for murder. His adaptations, qualifications and exceptions as may
appeal against conviction and sentence was be necessary to bring them into conformity with
dismissed by the Eastern Caribbean Court of the Constitution and the Supreme Court Order."
Appeal (Saint Christopher and Nevis). The
Judicial Committee of the Privy Council granted Section 2 of the 1873 Act is inconsistent with
him special leave to appeal against both section 7 of the Constitution only to the extent
conviction and sentence but subsequently that it requires the court to sentence to death
dismissed his appeal against conviction. anyone convicted of murder. By contrast, a
provision which simply authorised the
On the defendant's appeal against sentence— imposition of the death penalty in the case of
murder would be consistent with sections 4(1)
Held, allowing the appeal, that, to the extent that and 7 of the Constitution. In exercise of the
section 2 of the 1873 Act required sentence of power under paragraph 2(1) of Schedule 2 their
death to be imposed whenever a person was Lordships accordingly construe section 2 of the
convicted of murder, paragraph 9 of Schedule 2 1873 Act as providing: "Whosoever is convicted
to the Saint Christopher and Nevis Constitution of murder may suffer death as a felon." The
Order 1983 did not prevent it from being held to effect of this construction of section 2 is that,
be inconsistent with section 7 of the Constitution whenever anyone is convicted of murder, he may
of Saint Christopher and Nevis; that to that be sentenced to death or else he may be
extent section 2 of the 1873 Act was inconsistent sentenced to a lesser punishment. The selection
with section 7 of the Constitution; that, since a of the appropriate sentence will be a matter for
provision merely authorising the imposition of the judge, having regard to all the circumstances
the death penalty for murder would be consistent of the case. Before sentence is imposed, the
with sections 4(1) and 7 of the Constitution, judge may be asked to hear submissions and, if
section 2 of the 1873 Act was, pursuant to appropriate, evidence relevant to the choice of
paragraph 2(1) of Schedule 2 to the 1983 Order, sentence.”
to be construed as providing that any person
convicted of murder might be sentenced to death NOTE: Section 2 of the 1873 Act originally
or to a lesser punishment; and that, accordingly, provided that “Whosoever is convicted of
the sentence of death would be quashed and the murder shall suffer death as a felon.”
matter remitted to the High Court for a judge to
determine the appropriate sentence having regard
to all the circumstances of the case and in the Herbert v Phillips (1967) 10 435
light of any submissions and evidence relevant to
the choice of sentence.
On 10 June 1967, the appellant was arrested and
Per Lord Rodger, at pgs 1080-1081: detained by virtue of an order of even date

70
signed by the Governor’s Deputy. The reason allowances have been made for these changes
given in the order for detaining the appellant was the question still remains whether the power
that the Governor’s Deputy was satisfied that the given to the Governor under this Order to make
appellant had recently been concerned in acts emergency laws which appear to him to be
prejudicial to the public safety and to public “necessary or expedient” can be said to be in
order, and that by reason thereof it was necessary conformity with s 14 of the Constitution which
to exercise control over him. In pursuance of requires such a law to be “reasonably
that order the appellant was lodged in Her justifiable”. These two concepts cannot be
Majesty’s Prison at Basseterre and detained in equated and, indeed, are in conflict with each
the custody of the second-named respondent, the other; and it follows that the content of any law
Keeper thereof. based on these two different concepts must be in
conflict with each other. Accordingly, since the
The appellant contends that his detention is Order of 1959 cannot be brought into conformity
unlawful and unconstitutional in that it is a with the Constitution and its provisions are
contravention of his right to personal liberty inconsistent therewith, reg 3 of the Emergency
guaranteed to him under s 3 of the Constitution Powers Regulations 1967 made thereunder and
and he accordingly applied to the High Court by virtue of which the appellant was detained is
under s 16 of the Constitution for redress. He invalid and the appellant’s detention unlawful.
was unsuccessful in this application and he has
now appealed to this court as of right under s 100
(b) of the Constitution. P C LEWIS JA.

Held: (Per A M Lewis, CJ)(i) For the reasons Page 446

stated in the judgment in Charles v Phillips and
Sealey (10 WIR 423)(reported 10 WIR 423) Counsel for all parties have conceded that it
which are equally applicable to the present is an “existing law” within the meaning of s 103
appeal, reg 3 of the Emergency Powers (5) of the Constitution, and an inquiry must now
Regulations 1967 (SR & O 1967, No 16)[St be pursued to see to what extent it is affected by
CNA] is null and void, the detention order made this section.
thereunder invalid, and, as a consequence, the
detention of the appellant by virtue of the said Subsections (1),(2) and (3) of s 103 of the
order, unlawful. Constitution read:

‘103 (1) The existing laws shall, as from the

(vii) The Order of 1959 is an “existing law” as commencement of this Constitution, be
defined in s 103 (5) of the Constitution and construed with such modifications, adaptations,
accordingly sub-ss (1) to (3) of this section apply qualifications and exceptions as may be
thereto. Under sub-s (1), this order must be necessary to bring them into conformity with the
construed with such modifications, adaptations, West Indies Act 1967, this Constitution and the
qualifications and exceptions as may be Courts Order.
necessary to bring it into conformity with the (2) Where any matter that falls to be
Constitution, and if it cannot be brought into prescribed or otherwise provided for under this
conformity therewith by construction alone by Constitution by the legislature or by any other
the application of sub-ss (1) and (2) because its authority or person is prescribed or provided for
provisions differ materially from, or conflict by or under an existing law (including any
with the Constitution, then the Governor has amendment to any such law made under this
power under s 103 (3) to make an order before 1 section), that prescription or provision shall, as
September 1967, to bring the Order of 1959 into from the commencement of this Constitution
conformity with the Constitution; but admittedly have effect (with such modifications,
no such order has been made. adaptations, qualifications and exceptions as may
be necessary to bring it into conformity with the
(viii) In construing the Order of 1959 account West Indies Act 1967, this Constitution and the
must be taken of the constitutional changes Courts Order) as if it had been made under this
introduced by the Constitution and the necessary Constitution by the legislature or, as the case
changes in nomenclature made, but even after may require, by the other authority or person.

71
 (3) The Governor may by Order made at any In July, 1958, the Commissioner of Police in
time before 1 September 1967, make such Malaya purported to dismiss the appellant, an
amendments to any existing law as may appear inspector of police, on the ground that at an
to him to be necessary or expedient for bringing inquiry before an adjudicating officer he had
that law into conformity with the provisions of been found guilty on a charge of failing to
the West Indies Act 1967, this Constitution and disclose evidence at a criminal trial. While under
the Courts Order or otherwise for giving effect or the law as it existed before Merdeka Day the
enabling effect to be given to those commissioner had, pursuant to the Police
provisions.’… Ordinance, 1952, power to dismiss an inspector,
the appellant contended that after the coming
Page 448 into force of the Constitution that power was
…The test laid down in s 14 of the Constitution only in the Police Service Commission, to which
is an objective one and those who propound the the commissioner was a subordinate authority,
Order of 1959 must show that this order when and he sought a declaration that his purported
read and construed as required by s 103 (1) of dismissal by the commissioner was void and of
the Constitution can be brought into conformity no effect:-
therewith. In my view it is impossible to do this Held, that the provision in article 144 (1) of
and I accordingly hold that sub-s (1) of s 2 of the the Constitution that the functions of the Police
Order of 1959 is clearly inconsistent with s 14 of Service Commission were "subject to the
the Constitution… provisions of any existing law" meant only such
provisions as were consistent with the
Page 449 commission carrying out the duty entrusted to it.
Where, however, as here, there was a conflict
…I am accordingly of the opinion that s 3 of between the existing law and the Constitution the
the Order of 1959 cannot be construed as former would have to be modified so as to
required by s 103 (1) of the Constitution so as to accord with the latter, and the court itself, where
bring it into conformity therewith. Its provisions the Head of the Federation of Malaya had not
are therefore inconsistent with the Constitution done so under article 162 (4) of the Constitution
and as a result reg 3 of the regulations of 1967 within the prescribed time limit, could and would
which the Governor purported to make under article 162 (6) make the necessary
thereunder and in pursuance of which the modification in the powers of the Commissioner
appellant is detained is invalid and his detention of Police. There could not, at one and the same
unlawful. time, be two authorities with concurrent power to
appoint members of the police service. The
Kanda v Governor of Malaya (1962) 2 WLR Constitution must prevail and the existing law
1153 must be applied with such modification as might
Article 135 (1) of the Constitution of the be necessary to bring it into accord with it.
Federation of Malaya, which came into operation Accordingly, since Merdeka Day the
on Merdeka Day (August 31, 1957), provided: commission and not the commissioner had
"No member of any of the services" - which power to appoint and dismiss members of the
included the police service - "shall be police service and the dismissal of the appellant
dismissed ... by an authority subordinate by the commissioner was therefore void.
to that which, at the time of the dismissal ... has
power to appoint a member of that service of LORD DENNING
equal rank." Page 1159
By art. 140 (1):
"There shall be a Police Service Commission, It appears to their Lordships that, in view of the
whose jurisdiction shall, subject to article 144, conflict between the existing law (as to the
extend to all persons who are members of the powers of the Commissioner of Police) and the
police service." provisions of the Constitution (as to the duties of
Article 144 (1) provided: the Police Service Commission) the Yang di-
"Subject to the provisions of any existing law Pertuan Agong could himself (under article 162
and to the provisions of this Constitution, it shall (4)), have made modifications
be the duty of a Commission ... to appoint ... and in the existing law within the first two years after
exercise disciplinary control over members of Merdeka Day. (The attention of their Lordships
the service ... to which its jurisdiction extends." was drawn to modifications he had made in the

72
existing law relating to the railway service and ‘reasonable compensation’ in accordance with
the prison service.) But the Yang di-Pertuan section 17(1)(a) of the Constitution.
Agong did not make any modifications in the
powers of the Commissioner of Police, and it is (3) That in exercising its powers under section
too late for him now to do so. In these 134(1) of the Constitution to construe existing
circumstances, their Lordships think it is laws with such modifications, adaptations,
necessary for the court to do so under article 162 qualifications, and exceptions as were necessary
(6). It appears to their Lordships that there to bring them into conformity with the
cannot, at one and the same time, be two Constitution, the court must not usurp the
authorities, each of whom has a concurrent functions of Parliament; it could, however, effect
power to appoint members of the police service. minor textual amendments to sections 3(1), 19(a)
One or other must be entrusted with the power to and 22 of the Act; further, the court would strike
appoint. In a conflict of this kind between the out section 32 (which empowered the Minister to
existing law and the Constitution, the pay compensation over ten years, and specified
Constitution must prevail. The court must apply the circumstances in which it might be so paid),
the existing law with such modifications as may the modification of which was essentially a
be necessary to bring it into accord with the matter for Parliament.
Constitution. The necessary modification is that
since Merdeka Day it is the Police Service Attorney-General of St Christopher, Nevis and
Commission (and not the Commissioner of Anguilla v Reynolds (1980) page 108, post
Police) which has the power to appoint members considered.
of the police service. And that is just what has
happened. The Police Service Commission has (4) That the right of access to the courts to
in fact made the appointments. And their determine issues arising out of the compulsory
Lordships are of opinion that they were lawfully acquisition of property (guaranteed by section
made. 17(1)(b) of the Constitution) must be provided
by the particular enactment under which the right
of compulsory acquisition arose; that right was
San Jose Farmers Co-op v AG (1991) 43 WIR not satisfied by access to the Board for the
63 Compulsory Acquisition of Land as that board
was not a court; accordingly, the constitutional
As a preliminary point of law, the court was right was not provided by the Act in full.
called upon to determine whether the purported
acquisition of land by the Government of Belize Banana and Ramie Products Co Ltd v Ministry
under the Land Acquisition (Public Purposes) of Lands and Natural Resources (unreported)
Act was void and contravened section 17 of the followed.
Constitution (no property to be compulsorily
acquired except under a law which provided for (5)(Per Henry P and Liverpool JA; Sir James
reasonable compensation within a reasonable Smith JA dissenting) that provisions should be
time, and secured a right of access to the courts inserted into sections 3, 8, 17 and 18 of the Act
for certain specified matters connected with the under the powers provided by section 134 of the
acquisition). Constitution.

Held (1) that a discretion given by section 32(1) Per Henry P. Section 21 of the Constitution
of the Land Acquisition (Public Purposes) Act provides for a five-year period in which the
(‘the Act’) to a Minister to order compensation Governor-General and Parliament could effect
for compulsory acquisition to be paid over a ten- changes to laws existing on Independence Day
year period was not payment within a which were inconsistent with or which
‘reasonable time’ in accordance with section contravened the Constitution; section 21 does
17(1)(a) of the Constitution. not, however, preclude a court during that period
or after it from construing an existing law in
(2) That the payment of interest on debentures accordance with section 134(1) of the
representing the unpaid portion of that Constitution with such modifications, etc, as are
compensation at a fixed rate of 6 per cent under necessary to bring it into conformity with the
section 32(2) of the Act did not constitute Constitution.

73
Henry P. ‘21. Nothing contained in any law in force
Page 68 - 70 immediately before Independence Day nor
anything done under the authority of any such
It is true that the section is at pains to ensure law shall, for a period of five years after
protection for the relatively small individual Independence Day, be held to be inconsistent
landowner, for the mortgagor of land and for with or done in contravention of any of the
persons who have developed the land. provisions of this Chapter.’
Nevertheless it also confers on the Minister a ‘134. (1) Subject to the provision of this
discretion to order that compensation may in Chapter, the existing laws shall notwithstanding
certain circumstances be paid over a ten-year the revocation of the Letters Patent and the
period. I cannot regard such a payment as being Constitution Ordinance continue in force on and
within a reasonable time and in that respect I after Independence Day and shall then have
consider the section to be inconsistent with effect as if they had been made in pursuance of
section 17. It may be that the provision was this Constitution but they shall be construed with
designed to encourage the development of land such modifications, adaptations, qualifications,
by landowners and was desirable in the socio- and exceptions as may be necessary to bring
economic circumstances of Belize. But, as Lord them into conformity with this Constitution.
Diplock observed in Hinds, Hutchinson, Martin, ‘(2) Where any matter that falls to be
Thomas v R (1975) 24 WIR 326 at page 333 in prescribed or otherwise provided for under this
relation to Jamaica: Constitution by the National Assembly or by any
other authority or person is prescribed or
‘So in deciding whether any provisions of a provided for by or under an existing law
law passed by the Parliament of Jamaica as an (including any amendment to any such law made
ordinary law are inconsistent with the under this section) that prescription or provision
Constitution of Jamaica, neither the courts of shall as from Independence Day have effect
Jamaica nor their lordships’ Board are concerned (with such modifications, adaptations,
with the propriety or expediency of the law qualifications, and exceptions as may be
impugned. They are concerned solely with necessary to bring it into conformity with this
whether those provisions, however reasonable Constitution) as if it had been made under this
and expedient, are of such a character that they Constitution by the National Assembly or as the
conflict with an entrenched provision of the case may require by the other authority or
Constitution.’ person.
‘(3) The Governor-General may by Order
In addition it seems to me that section 32, like published in the Gazette within twelve months
section 22, by providing for the payment of a after Independence Day make such amendments
fixed rate of interest on unpaid compensation, to any existing law (other than this Constitution)
also offends section 17(1) of the Constitution as may be necessary or expedient for bringing
since the rate of 6 per cent fixed will not that law into conformity with the provisions of
necessarily always provide ‘reasonable this Constitution or otherwise for giving effect or
compensation’. enabling effect to be given to those provisions.
I turn now to consider whether sections 3, ‘(4) An Order made under this section may
19, 22 and 32 of the Act may be modified to be amended or revoked by the National
conform with section 17 of the Constitution. On Assembly or in relation to any existing law
behalf of the appellant it was submitted that, affected thereby, by any other authority having
because of the provisions of section 21 of the power to amend, repeal or revoke that existing
Constitution (which are peculiar to Belize), law.
existing laws could only be modified to conform ‘(5) The provisions of this section shall be
with the Constitution during the five-year period without prejudice to any powers conferred by
after Independence Day. If such modifications this Constitution or by any other law upon any
were not effected either by the Governor-General person or authority to make provision for any
within twelve months pursuant to section 134(3) matter, including the amendment or repeal of any
or by Parliament, there was no power in a court existing law.
after the expiration of the five-year period to ‘(6) In this section, the expression “existing
effect such modification. Sections 21 and 134 of law” means any Act of the Parliament of the
the Constitution are as follows: United Kingdom, Order of Her Majesty in
Council, Ordinance, rule, regulation, order or

74
other instrument having effect as part of the law, effect the necessary modification without
of Belize immediately before Independence Day usurping the functions of Parliament.
(including any such law made before that day Counsel for the appellant submitted that
and coming into operation on or after that day).’ section 17(1) of the Constitution requires the law
providing for the compulsory acquisition of
In my view, the object of section 21 was to property to contain the provisions referred to in
ensure that during the five years following paragraphs (a) and (b) and that the Act contains
Independence no attacks were to be launched no provisions securing to a person whose
against the constitutionality of existing laws. In property is compulsorily acquired a right of
certain territories where the ‘Westminster model’ access to the courts for the purposes set out in
Constitution had been adopted, provision had section 17(1)(b). That right, he submitted, must
been made for the continuing validity of existing be a right of direct access (not merely by way of
laws, notwithstanding their inconsistency with appeal) and it must be a right of access to a
fundamental rights and freedoms provisions of court, not to a body such as the Board for the
the constitution of the territory. In others, such Compulsory Acquisition of Land provided for in
existing laws become instantly unconstitutional the Act which this court has already in Banana
when the Constitution of the territory came into and Ramie Products Co Ltd v Ministry of Lands
force because they were afforded no such and Natural Resources (unreported) held not to
protection. Both provisions created problems be a court of law.
and section 21 of the Belize Constitution was
designed to overcome both problems by …I have, however, with some hesitation come to
providing a breathing space during which the the conclusion that the Act… may be modified
Governor-General and Parliament could effect and, with such modifications, construed to bring
the necessary legislative changes. The section them into conformity with the Constitution, in so
does not, however, in my view, detract in any far as this inconsistency is concerned.
way from the power of a court either during the
five-year period or afterwards to construe an Page 73D – E
existing law ‘with such modifications,
adaptations, qualifications, and exceptions as The question which I have had to consider is
may be necessary’ to bring it into conformity whether this is the type of inconsistency with
with the Constitution. At the same time the which a court may deal under section 134 of the
modifications, etc, must be such only as are Constitution. In my view a distinction must be
necessary and a court must be wary of usurping drawn between on the one hand construing
the functions of Parliament by introducing new existing provisions in an Act with such
and possibly controversial legislation in the guise modifications, adaptations, qualifications, and
of a modification necessary to bring a particular exceptions, as may be necessary to bring them
law into conformity with the Constitution. into conformity with the Constitution and on the
In Hinds, Hutchinson, Martin, Thomas v R other hand introducing entirely new and
(at page 344) the Privy Council held invalid unrelated or contradictory provisions into the
provisions of the Gun Court Act of Jamaica to be Act. The former is the function of the court, the
severable because ‘what remains after all those latter the function of Parliament which the court
provisions of the Act that are invalid have been ought not to usurp.
eliminated still represents a sensible legislative
scheme’. Adopting that approach, it seems to me LIVERPOOL
that section 3 of the Act may be modified by
deleting the words ‘and the declaration shall be Page 78D – F
conclusive evidence that the land to which it
relates is required for a public purpose’; section Section 2 (the supreme law clause) provides that
19 may be modified by deleting from paragraph the Constitution is the supreme law of Belize,
(a) the words ‘a date two years prior to’ and and if any other law is inconsistent with the
section 22 may be modified by deleting the Constitution that other law will, to the extent of
words ‘at the rate of six per centum per the inconsistency, be void. This powerful and
annum’… effective language is, however, tempered by the
Section 32 would, however, have to be deleted in provision contained in section 134(1), which
its entirely since it would not be possible to states that the existing laws will continue in force
after Independence Day and will then have effect

75
as if they had been made in pursuance of the which provided for the modification of existing
Constitution; but they must be construed with laws and stated (at page 334):
such modifications, adaptations, qualifications,
and exceptions, as may be necessary to bring ‘It appears to their lordships that there cannot, at
them into conformity with the Constitution. one and the same time, be two authorities, each
Section 134(6) defines an existing law as – of whom has a concurrent power to appoint
members of the police service. One or other
‘… any Act of Parliament of the United must be entrusted with the 86 power to appoint.
Kingdom, Order of Her Majesty in Council, In a conflict of this kind between the existing
Ordinance, rule, regulation, order or other law and the Constitution, the Constitution must
instrument having effect as part of the law, of prevail. The court must apply the existing law
Belize immediately before Independence Day with such modifications as may be necessary to
(including any such law made before that day bring it into accord with the Constitution.’
and coming into operation on or after that day).’
In Charles v Phillips and Sealey (1967) 10 WIR
Therein lies the power of the court to modify, 423 and Herbert v Phillips and Sealey (1967) 10
adapt, qualify, and make exceptions as the case WIR 435, the Court of Appeal of the West Indies
may be, to existing laws in order to bring them in Associated States held that the provisions of
harmony with the provisions of the Constitution, section 3 of the Leeward Islands (Emergency
a power which the Chief Justice liberally applied Powers) Order in Council 1959 were not in
to the Land Acquisition (Public Purposes) Act; conformity with the provisions of section 14 of
and which has been so vehemently attacked in the St Christopher, Nevis and Anguilla
this appeal. Constitution, but that they were so much out of
conformity that it was impossible to construe
Page 86E – G them so as to bring them into conformity with
the Constitution; and that, therefore, the
Section 134(1) of the Constitution is explicit in Emergency Powers Regulations 1967, which
its requirement that existing laws must be purported to have been made under that Order in
construed with such modifications, adaptations, Council, were invalid. Section 3 of the Order in
qualifications and exceptions as may be Council of 1959 sought to ensure that measures
necessary to bring them into conformity with the could immediately be taken (during a state of
Constitution; and it is acknowledged that the public emergency) to arrest and detain persons
Land Acquisition (Public Purposes) Act is an whom it was necessary to arrest and detain in
existing law. In my view, the permitted order to secure public safety or public order.
modifications transcend those of nomenclature, Section 14 of the Constitution had the same
reaching matters of substance and stopping only purpose. But, whereas the Order in Council gave
where the conflict between the existing law and the authority absolute discretion to arrest and
the Constitution is too stark to be modified by detain anyone, the Constitution allowed a law to
construction. be enacted conferring power to arrest and detain
only if it was reasonably justifiable to exercise
Page 87 – 88 that power. No appeal was taken from the
decisions of the Court of Appeal, but both
The implications of the requirement that existing decisions were discussed and overruled when the
laws should be construed in such a manner as to later case, Attorney-General v Reynolds (1980)
be made to conform with the provisions of the page 108 post came to be decided by the Judicial
Constitution have been determined in a number Committee of the Privy Council on appeal from
of cases. In Kanda v Government of Malaya the same court in respect of similar facts. Lord
[1962] AC 322 the appellant had challenged his Salmon, in delivering the opinion of the Board
dismissal from the police force by the said (in respect of the two earlier cases)(at page
Commissioner of Police under the provisions of 117):
a pre-Independence existing law which
empowered the commissioner to do so, on the ‘If the Court of Appeal was right in concluding
ground that the Constitution of Malaya had that no modification or adaptation or
transferred that power to the Police Service qualification or exception could bring the Order
Commission. Lord Denning, who delivered the in Council into line with the Constitution, then it
opinion of the Board, reviewed the provisions would have been plainly right in holding that the

76
Order in Council was nugatory, and the the Governor by proclamation dated 15 June
Emergency Powers Regulations 1967 invalid. 1973, declared that a state of emergency existed
Their lordships cannot, however, accept that the in Dominica and the Ordinance immediately
Constitution would have preserved the life of the became effective therein. Section 3 of the
Order in Council of 1959 for any period if the Ordinance specifies the powers which become
Order in Council could not be construed under vested in the Governor when the state of
section 103 of the Constitution so as to bring it emergency has come into effect and s 4
into conformity with the Constitution. It is empowers him to exercise these powers by
inconceivable that a law which gave absolute making and publishing regulations and issuing
power to arrest and detain without reasonable orders and instructions. The Emergency Powers
justification would be tolerated by a Constitution Regulations 1973 were made under s 4 of the
such as the present, one of the principal purposes Ordinance. The appellants asked for
of which is to protect fundamental rights and declarations that certain of these regulations
freedoms. Their lordships do not consider there contravened the Constitution of Dominica in that
is any difficulty in construing the Order in they hindered the enjoyment of their freedoms of
Council by modification, adaptation, expression, assembly and association and
qualification, or exception so as to bring it into deprived them of their freedom of movement to
conformity with the Constitution.’ an extent, in each case, not reasonably justifiable
in a democratic society. The trial judge held that
Their lordships applied the doctrine, stated in the regulations were constitutional save for regs
Minister of Home Affairs v Fisher [1980] AC 4 and 9 (2) and he so declared, and there has
319, that a Constitution should be construed with been no appeal against his decision in this
less rigidity and more generosity than other Acts, respect. In addition to the regulations, the
and in effect rewrote section 3 of the Order in Governor made certain orders which were
Council in order to bring it into accord with the restrictive of the appellants’ freedoms of
provisions of the Constitution. expression, movement, and assembly and
As an existing law within the provisions of association. These orders the trial judge held to
section 134(6) of the Belize Constitution, the be in contravention of ss 10, 11 and 12 of the
Land Acquisition (Public Purposes) Act, must be Dominica Constitution Order and he set them
construed in accordance with the requirements of aside.
section 134(1) of the Constitution with such
modifications, adaptations, qualifications and The sole question before the Court of Appeal
exceptions as may be necessary to bring it into concerned the constitutionality of the Ordinance.
conformity with the Constitution. This is a task Two grounds of appeal were adduced in support
which is entrusted to the courts and which must of the contention that the Ordinance contravened
be undertaken by them; with an approach akin to the Constitution. These were as follows:(a) that
that which Lord Atkin in Liversidge v Anderson the Ordinance “is a scheme of abridgement of
[1942] AC 206 would have required of his ‘bold fundamental rights secured by the Constitution
spirits’. whereby powers to limit fundamental rights
I would therefore hold that sections of the Land conferred therein are arbitrary and conferred as a
Acquisition (Public Purposes) Act are to be totality (ie with an absence of selectivity to suit
construed to bring them into conformity with the factual circumstances) and in consequence are
Constitution, and would make the necessary inherently unreasonable; and (b) inconsistencies
changes as indicated in the judgment of Henry P. between the Ordinance and the Constitution are
In the circumstances I too, would make no order incapable of being resolved by construction.”
as to costs.
The submissions made on behalf of the
Maximea v AG (1975) 21 WIR 548 appellants in support of these grounds of appeal
were as follows:(1) there was a conferment of
By s 2 (1) of the Emergency Powers Ordinance, arbitrary power in the Ordinance without any
Cap 244 [Dominica], the Governor of Dominica regulation as to how this power was to be
is authorised to declare by proclamation that a exercised, which, counsel said, is the same thing
state of 548 emergency exists in that State in the as saying that there is an absence of guidelines in
circumstances therein mentioned, whereupon the the Ordinance referring to the manner in which
provisions of the Ordinance “shall immediately the powers were to be used and this it was said
come into force”. Pursuant to this subsection, made the Ordinance inherently unreasonable and

77
incapable of infringing or curtailing fundamental (vi) that the submission that the Governor’s
freedoms;(2) the powers conferred on the powers are unregulated is untenable because
Governor by the Ordinance were dictatorial, these powers are limited in their operation both
unregulated and all-embracing in scope, as regards time and in relation to their scope.
accordingly, any provision made in the exercise They are limited as to time in the sense that they
of these powers must of necessity offend against are only exercisable during a state of emergency
ss 10 (2)(a), 11 (2)(a) and 12 (3)(b) of the and as to scope in that they are confined solely to
Constitution in that they would not be reasonably matters and things specified in s 3 of the
required for any of the purposes mentioned in Ordinance. The justification for their exercise is
these sections;(3) there was no rational contained in the long title of the Ordinance
relationship between the powers evoked in the which shows that its purpose is to make
proclamation and the actual state of emergency. provision for the security of the State during a
period of emergency and the general tenor of the
Held: (i) that s 3 of the Ordinance is an enabling Ordinance supports this also. The attainment of
section which permits action to be taken by the the objective stated in the long title and
Governor only after a state of emergency is adumbrated in the provisions of the Ordinance
proclaimed, and bearing in mind the purpose of requires the Governor to exercise his powers
the Ordinance as set out in the long title which is bona fide and it has not been suggested that he
“to make provision for the security of the State did not so exercise them in this case;
in an emergency”, and also the matters specified
in s 3 in relation to which the Governor may (vii) that the submission that the method
exercise his powers, it is difficult to see how the prescribed by s 2 (2) of the Ordinance for
powers contained in s 3 (1) can be successfully bringing the state of emergency to an end is
impugned as they fall squarely within the inconsistent with that stated in s 17 (4) of the
exceptions contained in ss 10 (2) and 11 (2) of Constitution and this difference cannot be
the Constitution; resolved by construction, the short answer is that
the provisions of the Ordinance in this respect
(ii) that similarly, the powers contained in paras cannot stand when read with the corresponding
(a) to (f) of s 3 (2) of the Ordinance would provisions of the Constitution, and the former
permit regulations or orders to be made under ss must therefore be deemed to have been impliedly
10 (2)(a), 11 (2)(a) and 12 (3)(a)(b) and (e) of repealed by the latter. It therefore follows that
the Constitution without infringing the rights when it is desired to bring a state of emergency
therein contained; to an end the appropriate and only law to be
followed is s 17 (4) of the Constitution. The
(iii) that so, too, s e (3) of the Ordinance enables court was informed by counsel that the state of
the Governor to make provisions for emergency came to an end on 15 August 1973,
safeguarding the public interest and such a and there is nothing on the record to indicate that
provision is one which in terms of ss 1010 (1)(a) this termination was not in accordance with the
and 11 (2)(a) of the Constitution may be provisions of s 17 (4) of the Constitution.
regarded as being “reasonably required in the
interest of public safety”;
CECIL LEWIS CJ AG
(iv) that the powers contained in s 3 of the
Ordinance are clearly within the contemplation Page 556
of ss 10, 11 and 12 of the Constitution and are
not inherently unreasonable; It is obvious from the terms of s 2 (2) of the
Ordinance that the power to bring a state of
(v) that the constitutionality of any provision emergency to an end is vested in the Governor
made under the Ordinance must be decided in who may do so by proclamation. By s 17 (4) of
the light of the particular case to which it is the Constitution however a proclamation
intended to apply and cannot be dealt with in declaring a state of emergency can only be
abstracto as counsel for the appellants sought to revoked, and ipso facto the state of emergency
do; brought to an end,“by a resolution supported by
the votes of the majority of all the members of
the House of Assembly.” The difference
between the relevant provisions of the

78
Constitution and of the Ordinance respectively the decision at first instance was reversed. The
for bringing a state of emergency to an end plaintiff appealed to the Privy Council.
would not in itself be sufficient to render the
Ordinance unconstitutional. Section 101 (1) of
the Constitution provides that existing laws (and The Attorney General argued that the existing
the Ordinance is an existing law) shall as from system of jury selection did not fall foul of s 8 of
the commencement of the Constitution be the constitution; the focus of impartiality was on
construed with such modifications, adaptations, the actual jury not its process of selection and
qualifications, and exceptions as may be there was no basis for believing that an all-male
necessary to bring them into conformity with the jury was incapable of affording the plaintiff a
Constitution. I agree with counsel for the fair trial.
appellant that the difference between the
Constitution and the Ordinance in this respect The issue for determination by the court was
cannot “be construed away” to use his own whether the plaintiff's constitutional right was
words, but it unnecessary to try and reconcile infringed in the case of trial by jury when the
this difference by construction. What has jurors were chosen from a jury list compiled on a
happened is that s 2 (2) of the Ordinance can no sex discriminatory basis.
longer stand when read with s 17 (4) of the
Constitution and accordingly, it must be deemed The appeal would be allowed.
to have been impliedly repealed thereby. It
follows therefore that when it is desired to bring Section 19 of the Supreme Court Ordinance
a state of emergency to an end the appropriate infringed the constitution in so far as it provided
and only law to be followed is s 17 (4) of the for liability for jury service being different for
Constitution. women than men.

Rojas v Bellaque & AG of Mauritius [2003] Since juries were chosen at random from jury
UKPC lists, a non-discriminatory method of
compilation of the jury lists was an essential
The plaintiff, who was from Gibraltar, sought ingredient of a fair trial by jury. Fairness was
damages for assault and false imprisonment from achieved in the composition of a jury by random
the defendant, her former partner with whom she selection from a list which was itself fairly
used to live. The defendant denied the constituted. A jury list compiled on a basis
allegations of improper behaviour. By reason of which, without any objective justification,
the allegation of false imprisonment, the plaintiff excluded from jury service virtually one half of
was entitled to have her case tried by jury. Under the otherwise eligible population was a jury list
the system by which juries were compiled in compiled on a discriminatory basis. Trial by a
Gibraltar, the jury would in all likelihood consist jury derived from such a list did not satisfy the
only of male jurors, because men and women constitutional requirement of a fair trial by an
were treated differently in the compilation of the independent and impartial court.
jury list. Subject to exemptions and
disqualifications, jury service was compulsory PANEL: LORD NICHOLLS OF
for all men between the ages of 18 and 65, BIRKENHEAD, LORD HOBHOUSE OF
whereas women within that age bracket might WOODBOROUGH, LORD MILLETT, LORD
volunteer for jury service. They were eligible, RODGER OF EARLSFERRY AND LORD
but service was not compulsory under s 19 of the WALKER OF GESTINGTHORPE
Supreme Court Ordinance. The plaintiff objected
to an all-male jury hearing her case, alleging that LORD NICHOLLS OF BIRKENHEAD
the existing system infringed her right to a fair
trial in determining her civil rights under s 8 of Para 23-26
the Constitution of Gibraltar.
The Attorney General submitted there is more
The Attorney General for Gibraltar intervened in than one way section 19 of the Supreme Court
the proceedings. The Chief Justice concluded Ordinance may be made consistent with the
that the plaintiff's rights had been infringed. On Constitution. The legislature might choose to
appeal by the defendant to the Court of Appeal, provide for complete equality between men and
women in the compilation of the jury lists. Or it

79
might decide to provide for less than complete 19 as interpreted in accordance with those
equality, as by exempting women with young provisions.
children. Or it might decide to abolish jury trials
altogether. When granting relief the Board For these reasons their Lordships will humbly
should permit the legislature an opportunity to advise Her Majesty that this appeal should be
consider how to respond to the Board’s decision. allowed. Section 19 of the Supreme Court
The Board should not pre-empt the decision of Ordinance infringes the Constitution of Gibraltar
the legislature. Relief should be confined to a in so far as it provides for liability for jury
declaration of unconstitutionality. service being different for women than men. In
accordance with paragraph 2 of the transitional
Their Lordships are unable to accept these provisions annexed to the Gibraltar Constitution
submissions. Paragraph 2 of the transitional Order 1969 section 19 should therefore be
provisions imposes a far reaching obligation on construed in the manner stated above. The
courts. As noted in Director of Public Attorney General must pay the parties’ costs in
Prosecutions of Jamaica v Mollison [2003] 2 the Court of Appeal and before their Lordships’
WLR 1160, 1170-1171, this type of obligation Board.
goes beyond the limits of construction of statutes
as usually understood. In the usual course the
process of construction involves interpreting a R v Hughes, see above
provision in a manner which will give effect to
the intention the court reasonably imputes to the at pgs 1075-1076:
legislature in respect of the language used. The
exercise required by these transitional provisions “51 As their Lordships have explained, the
is different. The court is enjoined, without any mandatory nature of the death penalty under
qualification, to construe the offending section 178 derives from the fact that the death
legislation with whatever modifications are penalty is excluded from section 1284 which
necessary to bring it into conformity with the gives the court power to impose a lesser
Constitution. There may of course be cases punishment than that prescribed in the section
where an offending law does not lend itself to a dealing with the particular offence. Paragraph
sensible interpretation which would conform to 2(1) of Schedule 2 to the Saint Lucia Order
the relevant Constitution. That is not this case. provides:
The offending provision here is the provision
according women a different liability to jury "The existing laws shall, as from the
service than men. The modifications to section commencement of the Constitution, be construed
19 most naturally to be made, when construing with such modifications, adaptations,
this section in a constitutionally consistent qualifications and exceptions as may be
manner, are those identified by the Chief Justice: necessary to bring them into conformity with the
section 19(1) is to apply to women as well as Constitution and the Supreme Court Order."
men, and section 19(2) is to be omitted. Section
19 should be read accordingly. Far from this In exercise of this power, their Lordships
being an unworkable result, in reaching this construe section 1284 as modified so as not to
conclusion the Chief Justice had in mind the include the words "other than death". The effect
practical inconveniences which would flow from is to make section 1284 apply to section 178, just
adopting the alternative course of merely as it applies to other sections that prescribe the
granting a declaration of unconstitutionality. punishment for particular offences. With section
That is a matter on which the Chief Justice is 1284 applying in this way, section 178 is no
much better placed than the Board. longer inconsistent with section 5 of the
Constitution and is to be regarded as valid. It
Adopting this interpretation of the legislation will therefore be open to the court under section
will not pre-empt any subsequent decision of the 178, in this case as in any other, either to impose
legislature. It will not trespass upon the the death sentence or to impose a lesser
authority or the function of the legislature. It punishment, depending on the view which it
will give effect to the court’s obligation under takes, having regard to all the relevant
the constitutional transitional provisions. The circumstances.”
legislature will retain the power to amend section

80
NOTE: Section 178 of the Criminal Code of removing the unlawful part of the sentencing
Saint Lucia as revised in 1992 is in these terms: process and the objective of the proviso could be
"Whoever commits murder is liable indictably to achieved by substituting a sentence of detention
suffer death." Section 1284 provides: "Unless at the court's pleasure; and that the case should
otherwise expressly provided, a court may be remitted to the Court of Appeal for the
sentence any offender to any less punishment, exercise of its powers in accordance with the
other than death, than that prescribed." Section relevant statutes.
1291 provides: "The sentence, to be pronounced
upon a person who is convicted of an offence Per Lord Hobhouse, at pgs 1162-1163:
punishable with death, is that he be hanged by
the neck until he is dead." “The validity of the provision is not saved by
any provision of the Constitution which
Greene Browne v R [1999] 3 WLR 1158 preserves the validity of previous laws. The
Constitution, unlike that of other Caribbean
The defendant was convicted of murder when he countries, does not include a general
was 16 years old and the judge sentenced him to preservation of the validity of all pre-existing
be "detained until the pleasure of the Governor- law. Paragraph 9 of Schedule 2 to the Order does
General be known." In so sentencing him the preserve existing law in relation to inhuman
judge had intended to apply the proviso to treatment referring back to section 7. But the
section 3(1) of the Offences against the Person relevant provision for present purposes is section
Act1 and the words used should have been 5(1). Deprivation of liberty otherwise than in
detention "during the Governor-General's execution of the sentence or order of a court is
pleasure." The Court of Appeal of the Eastern contrary to the Constitution. Paragraph 2(1) of
Caribbean States dismissed his appeal against Schedule 2 provides that:
conviction and sentence. The defendant
challenged the legality of the sentence on the "The existing laws shall, as from 19 September
ground, inter alia, that it contravened the 1983, be construed with such modifications,
Constitution of Saint Christopher and Nevis.2 adaptations, qualifications and exceptions as may
be necessary to bring them into conformity with
On the defendant's appeal to the Judicial the Constitution and the Supreme Court Order."
Committee: -
Therefore, it is the duty of the court to decide
Held, allowing the appeal, (1) that detention what modifications require to be made to the
at the Governor-General's pleasure was a offending provision in the proviso and to give
discretionary sentence for which the duration, effect to it in its modified form, not to strike
including its punitive element, was to be down the proviso altogether: see also Vasquez v.
determined by the Governor-General and not by The Queen [1994] 1 W.L.R. 1304.
the court; that under the Constitution of Saint
Christopher and Nevis the Governor-General This conclusion suffices to resolve the remaining
was part of the executive and not the judiciary; dispute between the parties before us; what
that, therefore, the sentence prescribed by the sentence should have been passed: what order
proviso to section 3(1) of the Offences against should the Board make. The appellant, through
the Person Act was a deprivation of liberty his counsel, Mr. Fitzgerald put forward a number
otherwise than in execution of an order or of alternatives. First, he submitted that since the
sentence of the court and was contrary to the only prescribed sentence had been declared
Constitution; and that, accordingly, even after unlawful, no sentence could lawfully be passed
the correction of the judge's verbal error, the and the appellant should be released. Next he
sentence was an unlawful one which the courts relied upon section 67 of the Criminal Procedure
were not entitled to pass or uphold. Act (cap. 20) of 24 March 1873 which provides
that where a person is convicted of a felony, and
(2) That it was the duty of the court to decide no punishment is specially provided, he shall be
what modifications needed to be made to the liable to be imprisoned for any term not
proviso so as to give effect to the requirements exceeding seven years. However, section 68 of
of the Constitution and the defendant's the same Act provides:
constitutional rights; that the proviso could be
made to comply with the Constitution by

81
"When imprisonment is to be awarded for any THE MODIFICATION CLAUSE :
offence, and no definite period is fixed by law, SECTION 5 (1) OF THE 1976 ACT
the term of such imprisonment shall always be in In grappling with the rival contentions of
the discretion of the court passing the sentence . . counsel, it would be best to begin by considering
." the nature and extent of the powers given to the
court by Section 5 (1) of the 1976 Act. But we
In the light of paragraph 2, counsel rightly do not start here with a clean slate. Far from it.
recognised the difficulties in his arguments that This provision or one very similar to it (to which
the appellant should have been released I will refer as a ‘modification clause’) finds a
immediately without punishment or only place in the constitution of many Commonwealth
sentenced to some limited term. But in any countries that became independent in the last
event, sections 67 and 68 of the Criminal fifty years or so, and as a result has been
Procedure Act cannot apply as such since the interpreted and applied in a large number of
sentence is not a sentence of imprisonment but cases. It is necessary to refer to some of them.
something radically different: Reg. v. Secretary
of State for the Home Department, Ex parte THE CASES
Venables [1998] A.C. 407. Nor is the crime of Mention has already been made of Beckles v.
murder by one under 18 years old, an offence for Dellamore, an early decision of this Court. It
which no punishment is specially provided. It is was held in that case that certain provisions of
a clear example of an instance where a special the 1962 Constitution relating to the proclaiming
punishment has been provided having special of a State of Emergency should be read into the
and peculiar characteristics. But section 68 Emergency Powers Ordinance of 1947, although
provides an analogy, if one is required, for the there was no reference to the Ordinance in the
sentencing court having the power to decide how Constitution. It was held that this could be done
for long the appellant should be detained. The in exercise of the powers conferred by the
decision and reasoning of the Supreme Court of modification clause then in force (section 4 (1)
Ireland in The State v. O'Brien [1973] I.R. 50 of the 1962 Order) in order to bring the
also supports the conclusion that the correct Ordinance into conformity with the Constitution.
construction of the proviso read with the
Constitution is that the sentence should be A somewhat similar decision was reached by the
detention during the court's pleasure. Privy Council in Attorney-General of St.
Christopher, Nevis and Anguilla v Reynolds
In their Lordships' judgment the answer to this (1979) 43 WIR 108. It was held that certain
part of the case is to identify the element of constraints on the power of detention contained
unconstitutionality in the relevant statutory in the Constitution had to be read into an earlier
provision and then to consider what change is Order in Council dealing with emergency powers
necessary to give effect to the requirements of and the regulations made under it as a result of
the Constitution and the appellant's constitutional the application of a modification clause. In doing
rights. So far as the first part of this exercise is so the Privy Council overruled two decisions of
concerned, the relevant element is apparent from the Court of Appeal of the West Indies
what has already been said. It is the fact that the Associated States in Charles v Phillips and
decision on the length of the sentence is Sealey (1967) 10 WIR 423 and Herbert v
entrusted to the executive not to the judiciary. It Phillips and Sealey (1967) 10 WIR 435, in
follows from this that what is required to make which the Court of Appeal had held that the
the provision comply with the Constitution is provisions of the same Emergency Powers Order
that the decision should be made by a court. If in Council were so much out of conformity with
this is done the only objectionable part of the the Constitution that it was impossible to
sentencing process is removed.” construe them so as to bring them into
conformity with it, and that accordingly, the
See Mollison supra regulations made under the Order in Council
were invalid.
Roodal (Court of Appeal) supra
An earlier and more striking decision was that of
Pages 12 – 15 the Privy Council in Kanda v Governor of the
Federation of Malaya [1962] 2 WLR 1153. In
that case there was a conflict between the

82
Constitution of Malaya which vested power to simply struck it out. One member of the court,
dismiss all police officers in the Police Service Sir James Smith, dissented from the order for the
Commission and an Ordinance which pre-dated insertion of the new provisions considering that
the Constitution and gave the Commissioner of that was a matter which was beyond the power
Police power to dismiss police officers of a of the court and should also be left to Parliament.
certain rank. There was also an article in the In dealing with the extent of the court’s power to
Malayan Constitution which empowered the construe under section 134 (1), Liverpool JA
court to apply any provision of an existing law said at page 86:
“with such modifications as may be necessary to
bring it into accord with the provisions of this “In my view, the permitted modifications
Constitution”. The article went on to define transcend those of nomenclature, reaching
“modification” as including “amendment, matters of substance and stopping only where the
adaptation and repeal”. The Privy Council conflict between the existing law and the
modified the Police Ordinance by repealing in Constitution is too stark to be modified by
effect the section in it which gave the power of construction”.
dismissal to the Commissioner, and thus brought
it into conformity with the Constitution. It could Another case from Belize is Vasquez v R. (1994)
be argued that the decision in Kanda turned on 45 WIR 103. In this case the Privy Council
the wide definition of modification contained in having held that two sections of the Criminal
the Malayan Constitution, although no Code of Belize by placing the burden of proving
suggestion to this effect was made by either provocation on the defence, infringed the
counsel in the instant case. Section 5 (4) of the presumption of innocence enshrined in the
1976 Act defines ‘modification’ as used in Constitution, invoked the power conferred on it
section 5 (3), but not as used in section 5 (1). by the same modification clause (section l34 (1)
of the Constitution) and effectively re-wrote the
In Belize, however, there is a provision in the prefatory words of those sections so as to place
Constitution (section 134 (1)) which is the same the onus of disproving provocation on the
as our section 5 (1). It is instructive therefore to prosecution.
see how it was interpreted and applied in San
Jose Farmers Co-operative Society Limited v Maximea v Attorney-General (1975) 21 WIR
Attorney-General (1991) 43 WIR 63, by the 548 was an appeal from Dominica decided by
Court of Appeal of Belize. In that case the Court the Court of Appeal of the West Indies
was faced with the problem of resolving Associated States. It was contended for the
discrepancies between provisions in the appellant that the whole of the Emergency
Constitution which required as a condition for Powers Ordinance which pre-dated the
the compulsory acquisition of land that Constitution of Dominica, was inconsistent with
reasonable compensation should be paid within a certain of its provisions and was therefore
reasonable time and a statute which enabled the invalid along with the Regulations made under it.
State to pay compensation over a protracted The Court of Appeal refused to invalidate the
period and in the mean- time to pay a low rate of whole of the Act, holding that the powers which
interest on the it conferred on the Governor could and should be
outstanding balance. exercised in conformity with the constitutional
provisions. The Court held, however, that there
The Court in discharge of its duty to construe the was an inconsistency between the Ordinance and
existing law with modifications not only deleted the Constitution as to the Method by which a
parts of certain sections of the Act which were State of Emergency might be brought to an end
inconsistent with the Constitution but inserted which could not be resolved by construction and
new sub- sections which gave access to the therefore since the offending provision in the
courts to those whose lands had been Ordinance could not stand when read with the
compulsorily acquired and enabled awards of corresponding provision in the Constitution, it
compensation to be enforced like judgments. The was deemed to have been impliedly repealed by
court, however, felt that the modification of the the Constitution.
section which empowered the Minister to pay
compensation over 10 years and specified the In Greene Browne v The Queen [2000] 1 AC 45
circumstances in which it might be so paid, was the Privy Council held that a proviso in a statute
properly a matter for Parliament, and so they directing that a person who was convicted of

83
murder but was too young to be hanged, should “Unless otherwise expressly provided, a court
be detained during the Governor-General’s may sentence any offender to any less
pleasure, was in breach of the Constitution of St. punishment than that prescribed”.
Christopher and Nevis because such detention
deprived the person of his liberty otherwise than It would appear that in St. Lucia, the alternative
in execution of an order or sentence of a court. sentence of imprisonment does not have to be for
The Privy Council referred to the counterpart in life, but may be for any term determined by the
St. Christopher and Nevis of our section 5 (1) judge.
and held that it imposed the duty on the court “to
decide what modifications required to be made to Finally in Fox, the Privy Council achieved
the offending provision in the proviso and to conformity by invoking the modification clause
give effect to it in its modified form, not to strike contained in section 2 (1) of the schedule to the
down the proviso altogether”. The Privy Council St. Christopher and Nevis Constitution Order
went on to hold that the proviso should in effect 1983, to substitute the word “may” for the word
be amended so as to substitute detention ‘during “shall” in the death penalty provision so that it
the court’s pleasure’ for detention ‘during the read: “whosoever is convicted of murder may
Governor-General’s pleasure’ and remitted the suffer death as a felon”. Lord Rodger, in
case to the Court of Appeal for it to deal with the delivering the judgment of the Judicial
matter accordingly. Committee, said (at para. 11):

We now return to the recent trilogy of cases to “The effect of this construction of section 2 is
see how the Privy Council utilised the that, whenever anyone is convicted of murder, he
modification clause in order to transform may be sentenced to death or else he may be
provisions which prescribed the mandatory death sentenced to a lesser punishment. The selection
penalty for murder into ones which leave the trial of the appropriate sentence will be a matter for
judge with a discretion to sentence a person the judge, having regard to all the circumstances
convicted of murder either to death or to a term of the case”.
of imprisonment. What the Privy Council did in
Reyes was to treat a murder by shooting as There is no reference, however, in the judgment
falling within that category of murder designated to any provision in the law of St. Christopher and
Class B by a section of the Belizean Criminal Nevis which authorises a judge to impose any
Code. For that category of murder the penalty penalty other than death for the offence of
provided was either death or life imprisonment. murder. It is not clear from the judgment
This was tantamount to amending that section of whether any exists.
the Code, but the Judicial Committee held that
this was “sanctioned” by the modification clause, Roodal v The State Privy Council supra.
section 134 (1) of the Constitution. It is to be
noted that because of the provision already made VIII. The Respective Roles of Parliament and
for Class B murders by the Criminal Code in the Courts.
Belize, the Privy Council was able at one stroke
not only to remove the mandatory death penalty Before leaving this matter it is necessary to refer
for murder by shooting, but also to provide an to the following observation of the Chief Justice:
alternative punishment for it by simply adding “We are firmly of the view that if the death
murder by shooting to the list of Class B penalty is no longer to be mandatory in Trinidad
murders. There is of course nothing comparable and Tobago, this change must be effected by
in our law as now written by Parliament. Parliament. There are some advantages to doing
it by legislation rather than by judicial decision.
In Hughes the Privy Council were able to avoid Parliament will be able to determine and
interfering with the provisions which prescribe prescribe whether the alternative punishment for
the death penalty for murder by simply deleting murder should be imprisonment for life or for a
from section 1284 of the St. Lucian Criminal term to be decided by the Judge. It may also
Code the words “other than death”, so that that provide some guideline as to the factors which
section after modification read: the Judge is to take into account in determining
whether or not to impose the death penalty.
Parliament may also wish to address the question

84
of what role, if any, the jury should play in until they had been approved by a majority of the
determining the sentence to be imposed on a electors voting.
convicted murderer. This consideration,
however, has played no part in leading us to the “The question to be determined is a substance
conclusion we have reached.” whether the legislature of the State of New South
The Constitution is the supreme law of Trinidad Wales has power to abolish the Legislative
and Tobago. The Constitution itself has placed Council of the State or to alter its constitution or
on an independent, neutral and impartial powers without first taking a referendum of the
judiciary the duty to construe and apply the electors upon the matter. This question depends
Constitution and statutes and to protect upon the true construction and effect of certain
guaranteed fundamental rights, where necessary. statutes, both Imperial and local, and, before
It is not a responsibility which the courts may dealing with it, it is necessary for the sake of
shirk or attempt to shift to Parliament. Loyalty clearness to set out such portions of the said
to the democratic legal order of the Constitution statutes as are material to the present matter.
required the Privy Council to grapple with the
question before it and to decide it. Reading the section as a whole, it gives to the
legislature of New South Wales certain powers,
Anticipatory review subject to this, that in respect of certain laws they
can only become effectual provided they have
Attorney General for New South Wales v been passed in such manner and form as may
Trethowan [1932] A.C. 526 from time to time be required by any Act still on
the statute book. Beyond that, the words,
The Constitution Act, 1902, enacted by the “manner and form” are amply wide enough to
legislature of New South Wales, was amended in cover an enactment providing that a Bill is to be
1929 by adding s. 7A, which provided that no submitted to the electors and that unless and until
Bill for abolishing the Legislative Council a majority of the electors voting approve the Bill
should be presented to the Governor, for His it shall not be presented to the Governor for His
Majesty’s assent until it had been approved by a Majesty’s assent.
majority of the electors voting upon a
submission to them made in accordance with the The question then arises, could that Bill, a
section; and that the same provision was to apply repealing Bill, after its passage through both
to a Bill to repeal the section. In 1930 both chambers, be lawfully presented for the Royal
houses of the legislature passed two Bills, one to assent without having first received the approval
repeal s.7A and the other to abolish the of the electors in the prescribed manner? In their
Legislative Council. Lordship’s opinion, the Bill could not lawfully
be so presented. The proviso in the second
By s. 5 of the Colonial Laws Validity Act, 1865, sentence of s. 5 of the Act of 1865 states a
the legislature of the State had full power to condition which must be fulfilled before the
make laws respecting the constitution, powers legislature can validly exercise its power to make
and procedure of the legislature, provided that the kind of laws which are referred to in that
the laws should have been passed in such sentence. In order that s. 7A may be repealed (in
“manner and form” as might from time to time other words, in order that that particular law
be required by any Act of Parliament, letters “respecting the constitution, powers and
patent, Order in Council, or colonial law in force procedures” of the legislature may be validly
in the colony:- made) the law for that purpose must have been
passed in the manner required by s. 7A, a
Held, that the whole of s. 7A of the Constitution colonial law for the time being in force in New
Act, 1902, was within the competence of the South Wales. An attempt was made to draw
legislature of the State under s. 5 of the Colonial some distinction between a Bill t o repeal a
Laws Validity Act, 1865, that the provision that statute and a Bill for other purposes and between
Bills of the nature stated must be approved by “making” laws and the word in the proviso,
the electors before being presented was a “passed.” Their Lordships feel unable to draw
provision as to “manner and form” within the any such distinctions. As to the proviso they
meaning of the proviso; and accordingly that the agree with the views expressed by Rich J. in the
Bills could not lawfully be presented unless and following words: “I take the word ‘passed’ to be
equivalent to ‘enacted.’ The proviso is not

85
dealing with narrow questions of parliamentary jurisdiction to grant the reliefs sought; and a
procedure”; and later in his judgment: “In my summons (the cause of action summons) to
opinion the proviso to s. 5 relates to the entire strike out the writ upon the ground that it
process of turning a proposed law into legislative disclosed no reasonable cause of action. The
enactment, and was intended to enjoin Attorney-General conceded that, for the purposes
fulfillment of every condition and compliance of the cause of action summons only, the
with other requirement which existing legislation proposed bill would be repugnant to the statutes
imposed upon the process of law making.” of the United Kingdom and the proposed Order
in Council.
Rediffusion (Hong Kong) Ltd v Attorney
General of Hong Kong [1970] 2 WLR 1264 The Supreme Court of Hong Kong dismissed the
jurisdiction summons on the ground that the
The plaintiffs held an exclusive licence granted court had jurisdiction to interfere either by
by the Government of Hong Kong to carry on persuasion (declaration) or compulsion
the business of rediffusion of television (injunction) with the conduct of the members of
programmes in the colony, subject to the the Legislative Council in carrying out the
condition that they should not infringe any deliberative part of the legislative process, if that
copyright in the works which they transmitted. conduct was unlawful; but in the cause of action
Although the Copyright Act, 1911, had been summons they struck out the writ on the ground
substantially repealed in its application to the that the plaintiffs had failed to disclose any
United Kingdom and had been replaced by the reasonable cause of action.
Copyright Act, 1956, the Act of 1911 remained
in force in Hong Kong under transitional On the defendants' appeal against the order
provisions. Section 31 of the Act of 1956 dismissing the jurisdiction summons and on the
enabled an Order in Council to be made plaintiffs' appeal against the order striking out
extending any of the provisions of the Act to the writ:-
Hong Kong and granted the legislature limited
powers to modify or add to those provisions in Held, dismissing the appeals, (1) that the limited
their operation as part of the law of Hong Kong. immunity enjoyed by members of a colonial
legislative assembly from control by the courts
No such direction to extend the Act of 1956 had was founded on necessity, and the extent of that
been given. In 1967 the Colonial Secretariat immunity was limited by a conflict of public
informed the plaintiffs that it was proposed to policy between the desirability of freedom of
extend certain provisions of the Act of 1956 to deliberation in the legislative assembly and the
Hong Kong and to enact an Ordinance which observance by its members of the rule of law of
made certain modifications, in particular a which the courts were the guardians and, unless
modification that the relaying by rediffusion of the court had jurisdiction to inquire into the
television broadcasts was a breach of the validity of the proceedings and before the result
separate copyright in a television broadcast. The was achieved which was intended to be
plaintiffs took the view that as a matter of law prevented by the law from which such a
the proposed modifications were of such a nature legislative assembly derived its power, the
as brought them within the express prohibitive subject whom the law intended to protect would
words of section 31 (3), and that they would be deprived of any remedy. Accordingly, the
seriously imperil the plaintiffs' commercial Supreme Court of Hong Kong had rightly held
future and affect adversely their legal rights. that it had jurisdiction to enter upon the inquiry
whether or not it was lawful for the Legislative
They issued a writ against both the Attorney- Council to pass the proposed bill.
General, as a representative defendant on behalf
of the Legislative Council, and the deputy (2) That although the plaintiffs sought a
colonial secretary for a declaration that it would declaration on hypothetical and future questions,
be unlawful for the Legislative Council to pass the court's jurisdiction to enter upon the inquiry,
the proposed bill and for an injunction to restrain whether or not it would be lawful for the
the council from presenting the bill to the Legislative Council to pass the proposed bill,
Governor for his assent. The defendants issued a was not excluded on the ground that the
summons (the jurisdiction summons) to set aside questions were purely abstract because the
the writ upon the ground that the court had no

86
plaintiffs' legal rights were seriously affected by In their Lordships' view the Full Court of Hong
the proposed bill. Kong were right in holding that they had
jurisdiction to enter upon the inquiry whether or
But (3) (Lord Morris of Borth-y-Gest dissenting) not it would be unlawful for the Legislative
that the proposed bill in itself could not affect the Council of Hong Kong to pass the proposed bill,
legal rights of any individual, including the and if they found that it would be unlawful, to
plaintiffs, and, even if it was passed by the decide in their discretion whether or not to grant
Legislative Council and received the Governor's the relief by way of declaration and injunction
assent, the resulting Ordinance would to the claimed.
extent that it was repugnant to any Act of
Parliament be null and void under section 2 of Their Lordships can deal very briefly with the
the Colonial Laws Validity Act, 1865, but the alternative ground upon which it was contended
fact that the resulting Ordinance would be null before them that the court had no jurisdiction to
and void did not make unlawful the act of the entertain the action, viz., that it seeks a
Legislative Council in debating, passing and declaration as to hypothetical and future
presenting a bill for assent containing any matter questions. The evidence showed a clear intention
repugnant to an Act of Parliament. Accordingly, on the part of the Government of Hong Kong,
the plaintiffs had no cause of action against the which, with the aid of the Governor's casting
defendants. vote, commands a majority in the Legislative
Council, to seek from the Secretary of State in
Per Lord Diplock at pg 1275: the United Kingdom an Order in Council in the
terms of the draft order referred to in the writ and
“Thus the broad question on the jurisdiction to enact an Ordinance in the terms of the draft
summons is whether a court of justice in Hong bill. Such a bill, if enacted, would, as previously
Kong has any power to interfere either by mentioned, seriously affect the plaintiffs' existing
persuasion (declaration) or compulsion legal rights. All questions involved in quia timet
(injunction) with the conduct of members of the proceedings are hypothetical and future. To
Legislative Council in carrying out a part of the exclude the jurisdiction of the court to inquire
legislative process, or more specifically in into them in order to decide whether to exercise
carrying out the deliberate part of the legislative its discretion to grant relief, the defendants
process, even though that conduct is would have to show that the questions were
unlawful……” purely abstract questions the answers to which
were incapable of affecting any existing or future
and at pgs 1277-1278: legal rights of the plaintiffs. This they have not
done……”
“The immunity from control by the courts, which
is enjoyed by members of a legislative assembly And at pgs. 1280-1281:
while exercising their deliberative functions is
founded on necessity. The question of the extent “The only question raised in the cause of action
of the immunity which is necessary raises a summons can thus be re-stated as:
conflict of public policy between the desirability
of freedom of deliberation in the legislature and "Is it 'unlawful' for members of the Legislative
the observance by its members of the rule of law Council of Hong Kong to pass a bill which is
of which the courts are the guardians. If there repugnant to the provisions of an Act of the
will be no remedy when the legislative process is Imperial Parliament extending to Hong Kong
complete and the unlawful conduct in the course and/or to present it to the Governor for his
of the legislative process will by then have assent?"
achieved its object, the argument founded on
necessity in their Lordships' view leads to the This depends upon the effect of section 2 of the
conclusion that there must be a remedy available Colonial Laws Validity Act, 1865, which reads
in a court of justice before the result has been as follows:
achieved which was intended to be prevented by
the law from which a legislature which is not "Any colonial law which is or shall be in any
fully sovereign derives its powers. respect repugnant to the provisions of any Act of
Parliament extending to the colony to which
such law may relate, or repugnant to any order or

87
regulation made under authority of such Act of outside the legal power of the actor does not give
Parliament, or having in the colony the force and rise to any cause of action on the part of any
effect of such Act, shall be read subject to such person unless it infringes or threatens to infringe
Act, order, or regulation, and shall, to the extent that person's legal rights. Such an infringement
of such repugnancy, but not otherwise, be and can only occur when steps are taken to enforce
remain absolutely void and inoperative." the void Ordinance. It is committed not by the
makers of the Ordinance but by those who take
This section it is to be noted deals only with the steps to enforce it after it has been made. But
construction and effect of colonial laws once steps to enforce any Ordinance passed in the
they have been enacted. It is not concerned with terms of the proposed bill will not in any event
the procedure followed in the law-making be taken by members of the Legislative Council
process before a proposed measure becomes a in their capacity as such, which is the only
law. So far as that is dealt with at all in the Act it capacity in which they are sued. The question
is by section 4 and, as respects representative whether before a proposed Ordinance is enacted
legislatures, also by the latter part of section 5. the plaintiffs might have some other remedy in a
quia timet action brought against other
Section 2 provides as a matter of construction defendants sued in a different capacity in respect
that a colonial law shall be read as subject to any of threatened steps to enforce the Ordinance if
Act of Parliament, order or Regulation extending and when it is passed does not arise in the
to the colony, and secondly, as a matter of effect, present appeal.
that it shall be void and inoperative to the extent
of its repugnancy to any such Act of Parliament, But even if it be correct to say that in the limited
Order or Regulation but not otherwise. sense indicated above it would be ultra vires the
legislature to pass an Ordinance repugnant to an
A bill passed by the Legislative Council of Hong Act of Parliament, it does not follow that it is
Kong is not a colonial law nor does it become also ultra vires the Legislative Council, as a
one when presented to the Governor for his constituent part of the legislature, to pass a bill
assent. It becomes a law only when the Governor which at the time when it is debated in the
has assented to it and it does as a result of his council is in terms which are repugnant to
assent. It is true that the passing of a bill in the existing provisions of an Act of Parliament
terms of the proposed law is a necessary step in extending to Hong Kong. Repugnancy falls to be
the making of that law, since the Governor's determined at the date of enactment, not before.
power of assent is restricted to laws in the terms By that date the relevant provisions of the Act of
of bills passed by the Legislative Council, but it Parliament may have been amended in their
is a step which does not necessarily result in the application to Hong Kong - a possibility which
making of any law since the Governor has a the Hong Kong legislature may hope to influence
discretion to refuse his assent. but cannot control.

It can be truly said about the conduct of the In their Lordships' view it cannot be said to be
Legislative Council in passing a bill which, if ultra vires in any proper sense of that expression
enacted by the Governor's assent, would be for the Legislative Council to debate and pass a
repugnant to an Act of Parliament, that such bill, merely because its terms are repugnant to
conduct cannot affect the legal rights of anyone. existing provisions of an Act of Parliament
If the Governor does not assent, the bill will extending to Hong Kong. The Royal Instructions
never become a law at all; if he does the expressly confer upon every member the right to
Ordinance will be void and inoperative and will propose any question for debate in the
not he the law of Hong Kong. The Legislative Legislative Council and there can, in their
Council may be wasting their time in passing the Lordships' view, be no reason in public policy,
bill, but to do so is not in itself unlawful. why they should not debate and pass and present
to the Governor for his assent a bill which cannot
In a sense it may be said to be ultra vires the have any effect as law in the colony unless by
legislature of Hong Kong to make a law, i.e., to the time it is actually assented to by the
pass not merely a bill but an Ordinance which is Governor the provisions of an Act of Parliament
void and therefore ineffective. But conduct as they existed at the time of passing and
which is ultra vires in this sense is not of itself presentation of the bill have been amended. The
"unlawful." Conduct however much it lies likelihood or otherwise of such amendments

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being made may affect the utility of their debate; survive or, as it has sometimes been put, whether
it cannot in their Lordships' view affect their on a fair review of the whole matter it can be
legal right to engage in them.” assumed that the legislature would have enacted
what survives without enacting the part that is
Baldwin Spencer v AG [1970] AC 1136 ultra vires at all."

Bahamas District of the Methodist Church v As regards the establishment and jurisdiction of
Symonette, see supra Worksheet No. 1 the Full Court Division, its jurisdiction
coincides, and is exercisable concurrently, with
Severance of unconstitutional provisions that of the Circuit Court Division, except that it
does not extend to capital offences. If the Full
Hinds v DPP [1976] 2 WLR 366 Court Division were eliminated the whole range
of firearm offences would still be cognisable by
Per Lord Diplock at pgs 387-389 the two remaining divisions of the Gun Court.
The practical consequence would be that
“For the reasons that have been given under the firearms offences which lie outside the
previous headings "Jurisdiction" and "Sentence," jurisdiction of a resident magistrate under the
their Lordships have held the Gun Court Act Judicature (Resident Magistrates) Act, would be
1974 to be inconsistent with the Constitution to tried in camera by jury in the Circuit Court
the extent that (1) it provides for the Division instead of being tried in camera without
establishment of a Full Court Division of the a jury in the Full Court Division. In their
Gun Court and confers upon that division Lordships' view what remains after the
jurisdiction to try offences which lie outside the elimination of the Full Court Division still
jurisdiction of the lower judiciary of Jamaica; constitutes a practical and comprehensive
and (2) it confers upon a Resident Magistrate's scheme for dealing with firearm offences which
Division and Circuit Court Division of the Gun it can be assumed that Parliament would have
Court a power and obligation to impose a enacted if it had realised that it could not confer
sentence of detention at hard labour during the upon a Full Court Division the jurisdiction which
Governor-General's pleasure and provides for the it purported to confer upon that division by
establishment of a Review Board with power to section 5 (2). Their Lordships are confirmed in
determine the duration of such sentence in the their view as to the severability of these
individual case. Under section 2 of the provisions by the fact, of which they have been
Constitution the provisions of the Gun Court Act informed by the Attorney-General, that although
1974 dealing with these two matters are a Resident Magistrate's Division of the Gun
therefore void. The final question for their Court has been established and is operating
Lordships is whether they are severable from the satisfactorily it has not been found necessary up
remaining provisions of the Act so that the latter to the present to set up any Full Court Division.
still remain enforceable as part of the law of
Jamaica. Their Lordships would observe that the question
of severance with which they are dealing is
Regarded purely as a matter of drafting they are different from that which is dealt with in the
readily severable. All references to the Full judgment of Graham-Perkins and Swaby JJ.A.
Court Division, the Review Board and to the They had held the establishment of the Circuit
mandatory sentence of detention could be struck Court Division as well as that of the Full Court
out, and what was left would be a grammatical Division to be invalid. The elimination of both of
piece of legislation requiring no addition or these divisions would transform the Gun Court
amendment. But this, though it may point from a court with comprehensive jurisdiction to
strongly to severability, is not enough. The test try all "firearm offences" whatever their gravity
of severability has been laid down authoritatively into a court with jurisdiction confined to the trial
by this Board in Attorney-General for Alberta v. of a limited number of comparatively minor
Attorney-General for Canada [1947] A.C. 503, offences. It is unnecessary for their Lordships to
518: express any view as to whether upon this
assumption the provisions relating to the
"The real question is whether what remains is so establishment of the Resident Magistrate's
inextricably bound up with the part declared Division would have been severable from the
invalid that what remains cannot independently invalid provisions of the Act.

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 public against dangers arising from that use, with
As regards the power of the Gun Court to impose power to prohibit all intrusion on the land and all
a sentence of detention at hard labour during the obstruction of the use thereof. Provided that no
Governor-General's pleasure, the length of which byelaws promulgated under the section shall
is to be determined by the Review Board, the authorise the Secretary of State to take away or
practical consequence of the elimination of this prejudicially affect any right of common."
power would be that (a) offences against section
20 of the Firearms Act 1967 would still be tried The Secretary of State for Defence, acting under
speedily and in camera in a Resident Magistrate's section 14 of the Act of 1892, made the R.A.F.
Division or Circuit Court Division of the Gun Greenham Common Byelaws 1985 in respect of
Court but the maximum sentence to be imposed common land appropriated for military purposes.
would be that prescribed by the relevant Byelaw 2(b)1 provided that no person should,
provisions of the Firearms Act 1967, which, it is inter alia, enter or remain in the protected area
to be noted, are not repealed expressly by the without the authority or permission of an
Gun Court Act 1974; and (b) the geographical authorised person. The defendants, who were not
limits of the jurisdiction of a Resident commoners, entered the land and were charged
Magistrate's Division and a Circuit Court with and convicted by the justices of entering it
Division of the Gun Court would still extend to contrary to byelaw 2(b). The Crown Court
firearm offences committed in any parish in allowed their appeals, holding that the byelaws
Jamaica, but would not extend to offences other were ultra vires in that they prejudicially affected
than firearm offences committed outside the rights of common. The Divisional Court of the
parish within which the division sat by persons Queen's Bench Division allowed an appeal by
who had already been convicted of an offence case stated by the Director of Public
under section 20 of the Firearms Act 1967. Prosecutions.

What remains after all those provisions of the On appeals by the defendants:-
Act that are invalid have been eliminated still
represents a sensible legislative scheme for Held, allowing the appeals, that various
dealing with persons charged with any firearm paragraphs of byelaw 2, including byelaw 2(b),
offence by providing (1) for the trial in camera were ultra vires, or in part ultra vires, as they
of all such offences, wherever they have been stood in that they contravened the proviso to
committed in Jamaica, by a centralised court section 14(1) of the Military Lands Act 1892;
composed of members of the judiciary used to that in determining whether a legislative
dealing with such offences; and (2) for the trial instrument that was bad in part might be severed
for an offence of unlawful possession of a so as to be upheld and enforced in part it was
firearm to take place speedily and to precede the essential that the part to be upheld and enforced
trial of the same offender for any other firearm should be substantially severable, i.e. that the
offence he may have committed. This may be substance of what remained should be essentially
only half the loaf that Parliament believed that it unchanged in its legislative purpose, operation
was getting when it passed the Gun Court Act and effect; that where textual severance was
1974, but their Lordships do not doubt that impossible and some modification would have to
Parliament would have preferred it to no bread. be made of the remaining text to make it
They would accordingly hold the invalid grammatical and coherent, severance was
provisions of the Act to be severable.” permissible only where no change would thereby
be effected in the substantial purpose and effect
DPP v Hutchinson [1990]3 WLR 196 of the provision in question; and that, since
byelaws drawn so as to permit free access to all
Section 14(1) of the Military Lands Act 1892 parts of the land by commoners exercising their
provides: rights would be totally different in character
from the existing byelaws, the invalidity of
"Where any land belonging to a Secretary of byelaw 2(b) could not be cured by severance and
State . . . is for the time being appropriated by . . the defendants had been wrongly convicted.
. a Secretary of State for any military purpose, a
Secretary of State may make byelaws for Per Lord Bridge of Harwich, Lord Griffiths,
regulating the use of the land for the purposes for Lord Goff of Chieveley and Lord Oliver of
which it is appropriated, and for securing the Aylmerton. The test of textual severability has

90
the great merit of simplicity and certainty, but a still grammatical and coherent. A legislative
rigid insistence that it must always be satisfied instrument is substantially severable if the
will in some cases have the unreasonable substance of what remains after severance is
consequence of defeating subordinate legislation essentially unchanged in its legislative purpose,
of which the substantial purpose and effect was operation and effect.”
clearly within the law-maker's power. It is
important, however, that in all cases an And at pgs 206-207:
appropriate test of substantial severability should
be applied. “The test of textual severability has the great
merit of simplicity and certainty. When it is
Per Lord Bridge of Harwich, at pgs 199-200: satisfied the court can readily see whether the
omission from the legislative text of so much as
“When a legislative instrument made by a law- exceeds the law-maker's power leaves in place a
maker with limited powers is challenged, the valid text which is capable of operating and was
only function of the court is to determine evidently intended to operate independently of
whether there has been a valid exercise of that the invalid text. But I have reached the
limited legislative power in relation to the matter conclusion, though not without hesitation, that a
which is the subject of disputed enforcement. If a rigid insistence that the test of textual
law-maker has validly exercised his power, the severability must always be satisfied if a
court may give effect to the law validly made. provision is to be upheld and enforced as
But if the court sees only an invalid law made in partially valid will in some cases, of which
excess of the law-maker's power, it has no Dunkley v. Evans and Daymond v. Plymouth
jurisdiction to modify or adapt the law to bring it City Council are good examples, have the
within the scope of the law-maker's power. unreasonable consequence of defeating
These, I believe, are the basic principles which subordinate legislation of which the substantial
have always to be borne in mind in deciding purpose and effect was clearly within the law-
whether legislative provisions which on their maker's power when, by some oversight or
face exceed the law-maker's power may be misapprehension of the scope of that power, the
severed so as to be upheld and enforced in part. text, as written, has a range of application which
exceeds that scope. It is important, however, that
The application of these principles leads in all cases an appropriate test of substantial
naturally and logically to what has traditionally severability should be applied. When textual
been regarded as the test of severability. It is severance is possible, the test of substantial
often referred to inelegantly as the "blue pencil" severability will be satisfied when the valid text
test. Taking the simplest case of a single is unaffected by, and independent of, the invalid.
legislative instrument containing a number of The law which the court may then uphold and
separate clauses of which one exceeds the law- enforce is the very law which the legislator has
maker's power, if the remaining clauses enact enacted, not a different law. But when the court
free-standing provisions which were intended to must modify the text in order to achieve
operate and are capable of operating severance, this can only be done when the court
independently of the offending clause, there is no is satisfied that it is effecting no change in the
reason why those clauses should not be upheld substantial purpose and effect of the impugned
and enforced. The law-maker has validly provision.”
exercised his power by making the valid clauses.
The invalid clause may be disregarded as Commissioner of Police v Davis [1993] 3 WLR
unrelated to, and having no effect upon, the 346
operation of the valid clauses, which accordingly
may be allowed to take effect without the Per Lord Goff, at pgs. 856-857:
necessity of any modification or adaptation by
the court. What is involved is in truth a double “For these reasons, their Lordships are of the
test. I shall refer to the two aspects of the test as opinion that, on the principle in Hinds v. The
textual severability and substantial severability. Queen, subsections (9), (10) and (11) of section
A legislative instrument is textually severable if 22 are unconstitutional and void. Hall J. thought
a clause, a sentence, a phrase or a single word that it was possible to preserve so much of
may be disregarded, as exceeding the law- subsection (8) as related to conviction on
maker's power, and what remains of the text is information, on the basis that there was no

91
constitutional impediment to a simple increase of
the maximum penalty on such conviction to life
imprisonment. The Court of Appeal, however,
took the view that, having regard to the terms in
which the subsection is expressed, it was not
possible to achieve such a severance. The
problem of severance where a law is held to be
in part inconsistent with a higher law was
considered by the House of Lords in Director of
Public Prosecutions v. Hutchinson [1990] 2 A.C.
783. It was there considered that, in cases where
such a problem of severance arises,

"a rigid insistence that the test of textual

severability must always be satisfied if a
provision is to be upheld and enforced as
partially valid will in some cases . . . have the
unreasonable consequence of defeating
subordinate legislation of which the substantial
purpose and effect was clearly within the law-
maker's power when, by some oversight or
misapprehension of the scope of that power, the
text, as written, has a range of application which
exceeds that scope: p. 811, per Lord Bridge of
Harwich."

It follows that the test of substantial severability

must now be applied; and this test requires that,
when the court must modify the text in order to
achieve severance, this can only be done "when
the court is satisfied that it is effecting no change
in the substantial purpose and effect of the
impugned provision:" see p. 811g.”

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