Worksheet 1 INTRODUCTION

- Importance of Human Rights

- Supremacy of the Constitution
- Generous Interpretation argument in Fisher
- Living Instrument
- Legitimate Expectation
- Structure of the Bill of Rights: In Conventional Model, T&T, Guyana

Importance of Human Rights

- Godfrey Smith in his Feature Address stated that human rights are essentially
concerned with respect for universal values and the fundamental dignity of the
human being.
- He stated that they have become the new theology of the modern world and they
are used as a kind of litmus test to gauge good governance.

Supremacy of the Constitution

- The Supreme Law clause states that, If any other law is inconsistent with this
Constitution, the Constitution shall prevail and the other law, to the extent of the
inconsistency, shall be void (Section 1 Barbados Constitution).
- Elements of the concept of constitutional supremacy were reiterated by the Privy
Council in Boyce and Joseph.

Generous Interpretation Argument in Fisher

- Lord Wilberforce for the PC observed that the proper way to construe a
constitution based on the Westminster model is to treat it not as if it were an Act
of Parliament but rather as sui generis (unique), calling for principles of
interpretation of its own, suitable to its characterwithout necessary acceptance
of all the presumptions that are relevant to legislation of private law.
- Lord Wilberforce attributed the generous interpretation of the constitutions to
their international human rights law antecedents e.g. European Convention for the
Protection of Human Rights and Fundamental Freedoms.
- Facts: Jamaican mother of 4 illegitimate children all born in Jamaica went to
Bermuda to live where she married a Bermudian.
- The Minister of Home Affairs however, later ordered the children (who were all
under 18) to leave Bermuda.
- Mother appealed based on the fact that section 11(5)(d) of the Constitution states
that any child or step-child who is adopted by a Citizen of Bermuda shall
belong to Bermuda.
- Supreme Court held that the children could not get protection under the
Constitution as child did not extend to illegitimate children.
- Issue for Privy Council: Whether the word child includes illegitimate child.
- PC Held: In many Acts of Parliament child has often been defined as being
limited to legitimate children. However, the court held that the Constitution
should not be interpreted as any other Act of Parliament it is a sui generis (unique)
instrument calling for generous interpretation.
 - They held that the word child in Section 11 of the Constitution includes
illegitimate children.
- NB: One could use the generous interpretation argument to say that the opening
section is justiciable (as Dennis Morrison did in Lake).

Living Instrument

- The Privy Council in Boyce and Joseph saw the Constitution as a living
instrument.
- This means that its protections change over time and in light of new
circumstances; its interpretation should thus not be static but should change
according to the surrounding circumstances in society.
- Held: judges in giving body and substance to fundamental rights will naturally
be guided by what are thought to be the requirements of a just society in their own
time.
- This principle underscores the importance of judicial interpretation in determining
the scope of fundamental rights and freedoms as if bill of rights are living then it
is the judges who would give it life.
- NB: The living instrument argument may be used in saying that privacy rights are
extended to homosexuals as attitudes and values towards this might have changed.

International Law

- Generally speaking an unincorporated human rights treaty will only apply in cases
of ambiguity where it can be used to aid in constitutional interpretation.
- This is in keeping with the dualism argument that international law and municipal
law are separate systems, international rules therefore need to be incorporated
before they can be seen as part of domestic law.
- However, in Boyce and Joseph the CCJ gave effect to an unincorporated human
rights treaty by stating that the applicants had a legitimate expectation to appeal to
the human rights body formed under the treaty.

Structure of Conventional Model of the Bill of Rights:

- (a) Opening Section

- (b) Enumeration of Specific Rights
- (c) Redress Clause
- (d) Savings Clause
- (e) Provision for Periods of Emergency

Structure of the Trinidad and Tobago Model of the Bill of Rights

- It has two sections

- Section 4 declares the named rights: (Cast in absolute terms but with implied
limitations on the guarantees).
 - Section 5: Provides that no law can derogate from any of these rights and
freedoms. (This provision applies to the actions of the state and not just laws. In
subsection two there are some specific rights attached to criminal defendants).

Worksheet 2 Opening Section

1) Structure of Bill of Rights and Opening Section
2) Debate about justiciability of the Opening Section
3) Implications for the scope of the Rights to: (i) Privacy, (ii) Property (iii)
Protection of the law and (iv) Equality.

1) Structure of the Bill of Rights and Opening Section

- The basic structure of the Bill of Rights in the Conventional Model is as stated
above:
- (i) Opening section
- (ii) Detailed Provisions
- (iii) Redress Clause.
- The Opening Section often gives rise to more general rights which may not
necessarily be included in the Detailed Provisions e.g. right to privacy, right to
protection of the law, right to property and the right to equality.

Opening Section of Jamaican Constitution Section 13

Whereas every person in Jamaica is entitled to the fundamental rights and freedoms of the individual, that
is to say, has the right, whatever his race, place of origin, political opinions, colour, creed or sex, but subject
to respect for the rights and freedoms of others and for the public interest, to each and all of the following,
namely
a. life, liberty, security of the person, the enjoyment of property and the protection of the law;
b. freedom of conscience, of expression and of peaceful assembly and association; and
c. respect for his private and family life, the subsequent provisions of this Chapter shall have effect
for the purpose of affording protection to the aforesaid rights and freedoms, subject to such
limitations of that protection as are contained in those provisions being limitations designed to
ensure that the enjoyment of the said rights and freedoms by any individual does not prejudice the
rights and freedoms of others or the public interest.

2) Debate about the justiciability of the Opening Section

THE DEBATE ABOUT THE JUSTICIABILITY OF THE OPENING SECTION IS

IMPORTANT FOR SEVERAL REASONS MAINLY BECAUSE SOME OF THE
RIGHTS STATED IN THE OPENING SECTION ARE NOT STATED IN THE
DETAILED SECTION (THIS IS TRUE OF THE CONVENTIONAL MODEL
CONSTITUTIONS), e.g. THE PROTECTION OF THE LAW AND A BROAD RIGHT
TO PRIVACY. THEREFORE IF ONE WISHES TO SEEK REDRESS FOR A BREACH
OF ONE OF THESE RIGHTS ONE WOULD HAVE TO RESORT TO THE OPENING
SECTION.
The Debate:

Redress Clause

- Earlier cases stated that the redress clause is decisive and that since the opening
section is not included as a section under which persons can seek redress then it
should not be seen as justiciable.
- This was the reasoning taken in Lake v AG and in Girard.
- Girard: Teacher was dismissed because she was pregnant. She sought to rely on
the rights outlined in the opening section and in the anti-discriminatory section of
the detailed provisions. Matthew J held that the opening section is not enforceable
it is merely a forerunner of things to come as it was not included in the redress
clause.
- Grape Bay: This line of reasoning was confirmed obiter in Grape Bay by Lord
Hoffman where he stated that the constitutions make it clear that section 1 is not
to be separately enforceable.
- Lake v AG: Saunders, J articulated a similar as Lord Hoffman and stated that the
opening section was not justiciable.
- However, this presumption of the redress clause being the decisive factor can be
rebutted as the Constitutions of St. Kitts and Nevis, Antigua and Barbuda and
Bermuda include the opening section in the redress clause.

Whereas

- In Grape Bay Lord Hoffman stated obiter that the use of the word whereas
signaled perambulatory language.
- He cited the case of Societe United Docks a case from Mauritius, whose
Constitution is similar to that of Antigua and Barbuda and Bermuda where the
opening section is included in the redress clause.
- He stated that in that case the opening section would have been justiciable but he
distinguished Bermudas constitution because it included the word whereas.
- This further rebuts the fact that the redress clause is decisive as this decision
implies that even where the opening section is included in the redress clause it
may still be seen as unenforceable because of the word whereas.
- However, this ruling in Grape Bay is merely obiter - it is thus submitted that the
better view is that once the opening section is included in the redress clause it is
justiciable as this was stated in the ratio of subsequent cases Lake and Boyce
and Joseph.

Neville Lewis

- The Privy Council treated the opening section as justiciable this was an
inference rather than an express holding.
- Facts: Death row convicts/whether JA had to wait on report from IAC
- Lord Slynn gave decision of the board, found that section 13 the opening section
gave rise to substantive rights.
 - Opening Section conferred a right to procedural fairness much like the protection
of due process.
- Hoffman from Grape Bay dissented in Lewis- and stated by departing from its
previous decision the Board had converted the base metal of executive action into
the gold of legislative power without explaining how the trick is done.
- Essentially, this case did not give a reason WHY they came to the decision.
- NB only a year separates the Grape Bay decision from the Lewis decision and
also that the court did not refer to any of the previous decisions which held
otherwise- that the OS not enforceable

Lake v AG
- Property again in dispute. The court finds that the opening section was not
justiciable.
- Saunders J: rejected the argument that this view was inconsistent with the
generous interpretation to be afforded the constitution as outlined in Fisher.
- He stated that the deliberate exclusion of these rights from the redress clause
meant that they are not separately enforceable.
- Criticism: The court gave reference to Grape Bay which was obiter, and ignored
Neville Lewis which was ratio.
- However, Saunders J held something different in Boyce and Joseph.

Boyce and Joseph

- The CCJ decision of Boyce and Joseph held that the protection of the law in the
opening section is separately enforceable.
- (i) because of the distinction between exhaustive and inexhaustive rights: (he
submits that no constitution can capture the protection of the law and all that it
entails in the detailed provisions.)
- (ii) because protection of the law is a special right: the court held that they had an
inherent jurisdiction and duty to remedy any breaches of the right to protection of
the law regardless of the fact that it was not a right included in the redress clause.

NB. Argument about protection of the law being linked to the Rule of Law
- It may be argued that the Boyce and Joseph decision gives leverage for other
rights in the opening section such as privacy and the right to property to be seen
as separately enforceable as everything Saunders and de la Bastide said about
protection of the law may also be true of privacy.
- However, this argument may be rebutted by the fact that the right to protection of
the law is sui generis as it is inextricably linked to the rule of law, which is an
implied fundamental constitutional norm (Re. Reference Language).
- Because the rule of law is seen as an implied constitutional principle one would
not need to go to the Bill of Rights to enforce the rule of law, and since protection
of the law is seen to be linked to the rule of law the courts enforcement of it may
be seen as the enforcement of a general constitutional principle (e.g. like the
principle of separation of powers).
3) Implications for the scope of the rights to privacy, protection of the law, property
and equality.

Privacy
- The debate is relevant to the scope of the right to privacy as in the detailed
provisions only a right against arbitrary search is protected; there is no general
right to privacy.
- Comparison with T&T: General privacy rights should be more readily established
under the Trinidad model as they do not have the same problem of interpretation
of the opening section as with the conventional model.
- Comparison with Belize: Belize includes general right to privacy in their
Constitution.

Protection of the Law

- The Boyce case dictates that this is enforceable.
- This right was seen as so expansive that it overcame the dualist argument (about
not enforcing intl law until it is incorporated).
- This dualist argument was circumvented by applying the doctrine of legitimate
expectation.

Property
- The opening section protects an individual from deprivation of property in
general, while the detailed provisions only protect against compulsory acquisition.
- It is submitted that not all deprivation of property will amount to compulsory
acquisition, thus claimants wishing to rely on a general right to property would
have to argue the justiciability of the opening section.
- Grape Bay: The applicant desired to set up a McDonald Franchise all the
necessary contracts were finalized and the land was bought in hopes of
establishing the franchise; the company underwent a lot of financial investment
and sacrifice towards it. However, the Prohibited Restaurant Act was later passed
stating that no new franchises would be set up in Bermuda.
- They relied on section 1(c) of the Constitution which speaks to the right against
deprivation of property as they did not wish to rely on Section 13 as it only
safeguarded compulsory acquisition which was not applicable in this case.
- Lord Hoffman stated that section 1(c) of the Constitution does not confer separate
enforceable rights.
- However, it should be noted that this statement was obiter as there was no need to
decide the point because the Prohibited Restaurant Act was held not to be a
deprivation of property within the meaning of that section.
- Even though the point about the opening section was obiter it represented the
opinion of the highest judicial authority for the Commonwealth Caribbean at that
time.
- However, it is doubtful whether the case would have been decided the same way
today in light of Neville Lewis and Boyce and Joseph.
- One can use generous interpretation argument from Fisher to say that general
right to property should be protected.
Equality
- Some Constitutions such as Barbados, Bahamas and Jamaica dont include sex
as a grounds against discrimination in their anti-discriminatory section.
- However, all mention equality in relation to sex in the opening section. The
justiciability of the opening section is therefore of key importance in bringing
claims against gender discrimination in these territories.

Worksheet 3 Limitations on Rights

Presumption of Constitutionality

Four Antiguan Cases:

AG v Antigua Times (1975) [Restrictive Approach]

Hector v AG of Antigua and Barbuda (1990) [Early Shift]
De Freitas v Permanent Secretary (1998) [Consolidation]
Observer Publication Ltd. v Matthew (2001) [Continuity]

AG v Antigua Times [Burden of Proof Approach]

- The respondent, a company registered in Antigua, was the publisher of a bi-

weekly newspaper, The Antigua Times.

4) In 1971 the Parliament of Antigua enacted two laws, viz. the Newspapers
Registration Act and the Newspaper Surety Ordinance.

5) These Acts made it compulsory for anyone desiring to publish a newspaper in

Antigua (a) to obtain a licence, and (b) to pay therefor an annual licence fee of
$600.

6) It also required a printer or publisher of a newspaper to deposit the sum of

$10,000 with the Accountant General to satisfy any judgment of the Supreme
Court for libel.

7) The respondents newspaper, which began in December 1970, ended in December

1971, as a consequence of the passing of these two Acts which the respondent
complains were unconstitutional, and it applied to the High Court for redress

8) The Privy Council held: (i) that the word person in the Constitution includes
artificial legal persons hence corporate entities.

9) In this case the Privy Council saw the presumption of constitutionality as

determining the burden of proof. It was held that the presumption is that, until the
contrary is shown, all Acts passed by Parliament are reasonably required for some
legitimate state interest.
 10) It therefore rest on the applicant to prove that it is NOT reasonably required. This
is a heavy burden to be proven.

11) The Privy Council held that the licence requirement was reasonably required as
the government has a right to tax in order to ensure the provision of services
which preserve the country.

12) It was held that the presumption will be rebutted if an Act is so arbitrary as to
compel the conclusion that it does not involve an exertion of the taxing power but
constitutes in substance and effect, the direct execution of a different and
forbidden power.

13) In the instant case the amount of the licence fee is not so manifestly excessive and
of such a character as to lead to the conclusion that the real reason for its
imposition was not the raising of revenue for the purposes permitted by the
Constitution, but the preventing of the publication of newspapers.

14) Accordingly, the presumption that the Newspapers Registration (Amendment) Act
1971 was reasonably required has not been rebutted;

Hector v AG [Canon of Construction]

15) The Public Order Act 1972 was amended in 1976 to make it an offence for any
person to print or distribute any false statement which was likely to cause fear or
alarm in or to disturb public peace, or to undermine public confidence in the
conduct of public affairs.
16) The appellant was the editor of a newspaper published in Antigua known as The
Outlet. He was charged in respect of an article published in The Outlet in May
1985 with the above mentioned offence.
17) The charge alleged that the article complained of was a false statement which was
likely to undermine public confidence in the conduct of public affairs. The
appellant challenged the prosecution on the ground that the specific provision of
section 33B under which the charge was laid violated the Constitution of Antigua
and Barbuda.
18) Privy Council was willing to give full weight to the presumption of
constitutionality as it sought to imply a term in the statute which would avoid the
conflict with the constitution.
19) However, it was held that even with such an implication there was an inherent
conflict with the provision and the constitutional safeguards of free speech.
20) The Act was thus held to be unconstitutional. The PC held that the provisions
were overly broad and unnecessary.
21) The Privy Council spoke of the presumption of constitutionality as a mechanism
to save what would otherwise be an unconstitutional statute from being void by
implying certain words into the statute.
De Freitas v Permanent Secretary & Fisheries [Canon of Construction]
 22) Section 10(2)(a) of the Civil Service Act 1984 provided that: A civil servant may
not (a) in any public place or in any document or any other medium of
communication whether within Antigua and Barbuda or not, publish any
information or expressions of opinion on matters of national or international
political controversy;
23) The appellant was a civil servant. He engaged in activities which fell within the
prohibition in section 10(2)(a) of the Civil Service Act 1984. (He was involved in
peaceful demonstrations outside the Ministry of Agriculture.)
24) The Permanent Secretary interdicted the appellant from the exercise of the powers
and functions of his office.
25) Appellant applied to High Court for redress.
26) High Court declared that the section was unconstitutional.
27) Respondents appealed to the Court of Appeal.
28) Court of Appeal held (applying the presumption of constitutionality) that by
reading some words such as when his forbearance from such publication is
reasonably required for the proper performance of his official functions into the
section that it was constitutional.
29) The appellant appealed to the Privy Council.
30) Privy Council Held: (1) that any restrictions imposed on the freedom of
expression and freedom of assembly of civil servants must be restrictions which
were reasonably required for the proper performance of their functions and must
be reasonably justifiable in a democratic society.
31) The restrictions in section 10(2)(a) of the Civil Service Act 1984, without
qualification, did not satisfy the criterion of being reasonably required for the
proper performance of a civil servants functions.
32) The Privy Council laid down this 3-stage test in determining whether the
limitation on a right was reasonably required:
33) (i) Whether the legislative objective is sufficiently important to justify limiting a
fundamental right.
34) (ii) Whether there is a rational connection between the objective and the measures
taken to meet it.
35) (iii) Whether the means used to impair the right or freedom are no more than is
necessary to accomplish the objective.

Observer Publications v Matthew [Canon of Construction]

36) Within the meaning of s 12(1), (2) and (3) of the Constitution, the refusal of a
broadcasting licence is a hindrance of freedom of expression and freedom to
disseminate information and ideas without interference.

37) The refusal may nevertheless be upheld under s 12(4) to the extent that the
Telecommunications Act makes provision, explicitly or implicitly, that is
reasonably required for certain of a range of purposes.

38) The onus upon those supporting the restriction is to show that it is so reasonably
required. If the latter onus is discharged, the burden shifts to the complainant to
 show that the provision or the thing done is not reasonably justifiable in a
democratic society.

39) There is a presumption of constitutionality, but that presumption is an aid to the

construction of the actual legislative words in resolving any ambiguities or
obscurities.

NB.
40) The Burden of Proof approach is more restrictive and harsher on the applicants as
they have to prove: (i) a prima facie infringement of a right and (ii) that the
infringement was not reasonably required.
41) However the Canon of Construction approach also has its limitations as in this
approach the courts will try to save an unconstitutional law by adding the
necessary words.
42) However, the problem here is that there is a lack of certainty as to what the law is
this lack of legal certainty is not in conjunction with the Rule of Law (an
implied constitutional norm).
43) The risk of the more liberal approach to the presumption of constitutionality is
that of legal uncertainty.

Legal Certainty

44) An individual must have clear guidance as to the extent of his/her rights and the
legal provisions which interfere with such rights so that the citizen can regulate
their conduct accordingly.
45) The principle of legal certainty is also seen as a fundamental aspect of the rule of
law which is an implied fundamental constitutional norm (Reference Language
Rights).

De Freitas

46) It was held that the provision in question: section 10(2)(a) of the Civil Service Act
did not pass the test of legal certainty as it was not clear enough so as to enable
citizens to regulate their conduct accordingly.
47) One principle which has to be observed here is that of legal certainty. This was succinctly
expressed by the European Commission on Human Rights in G v Federal Republic of Germany
(Application 13079/87) (1989) 60 Decisions & Reports 256 at page 261, where it was stated that
legal provisions which interfere with individual rights must be formulated with sufficient precision
to enable the citizen to regulate his conduct. The critical question then is whether the prohibition in
section 10(2) as qualified by the Court of Appeal produces a rule sufficiently precise to enable any
given civil servant to regulate his conduct.
48) The rule applies to all civil servants without distinction so that it is left to the individual in any given
circumstances to decide whether he is, or is not, complying with the rule. Their lordships are not
persuaded that the guidance given is sufficiently precise to secure the validity of the provision.

Rational Connection

49) A basic requirement of Caribbean constitutional law is that the limitation on a

right must be proportionate to the legitimate goal the state is seeking to achieve.
 50) There must be a rational connection between legislative goals and the legitimate
state objective.
51) The modern for assessing this rational connection is found in de Freitas:
(1) Whether the legislative objective is sufficiently important to justify limiting a
fundamental right.
52) (2) Whether there is a rational connection between the objective and the measures
taken to meet it.
53) (3) Whether the means used to impair the right or freedom are no more than is
necessary to accomplish the objective.

Reasonably Required and Reasonably Justifiable (The Burden of Proof)

54) The Burden is on the applicant to prove a prima facie breach of the right (C&W v
Marpin).
55) The Burden then rests on the government to show that the law/action was
reasonably required.
In doing this they must show a rational connection between the law/action and some
legitimate state objective (fulfill the three-stage test in de Freitas.)
56) If they so prove that it is reasonably required, the burden then shifts on the
applicant to prove that it is not reasonably justifiable in a democratic society.

NB. The State has a margin of appreciation in determining what are legitimate state goals
and whether or not the limitation was reasonably required (as illustrated in C&W v
Marpin).

One-Stage vs Two-Stage Test

1. ONE STAGE: If the Presumption of Constitutionality is seen as determining the

burden of proof (as in AG v Antigua Times) then there is a one-stage process in
which the applicant has to prove (i) that there right has been infringed and (ii) that
the limitation was not reasonably required. The sole burden of proof thus rests on
the applicant.
2. TWO STAGE: If the Canon of Construction approach is taken then there is a two-
stage process in which:
(i) The claimant must prove a breach of the right.
(ii) The accused must prove that the limitation was reasonably required.
57) The two stage test less harsh to applicants as they have less to prove.

Special Acts

58) The state is given power under the Constitutions of Trinidad and Tobago and
Jamaica to enact special acts as termed by Demerieux.
59) These Acts consciously derogate from the protected rights and freedoms.

Jamaica
60) Section 50 of the Jamaican Constitution provides for special Acts.
 61) Requirement: Bill should be passed by both houses by 2/3 of the members of each
house.
62) Effect: Such an Act will not be held void to the extent of any inconsistency with
the Bill of Rights provisions.

Trinidad
63) Section 13 of the Trinidad Constitution provides for special Acts.
64) Requirement:
65) (1) Bill should be passed by both Houses by at least 3/5 of all the members of
each house.
66) (2) The Act should expressly declare that it shall have effect even though
inconsistent with the Bill of Rights.
67) (3) The Act must be reasonably justifiable in a society that has proper respect for
the rights and freedoms of the individual.
68) Effect: Such an Act will not be held void to the extent of any inconsistency with
the Bill of Right provisions.

Worksheet 4 - Redress

A. Key Elements of the Redress Clause and the General Principles developed by the
Courts
B. Who has standing to get relief
C. Against whom can relief be sought
D. What Forms of Relief can be sought: (i) Mandatory Injunction (ii) Damages
E. When will a court decline to grant relief on the ground that there is alternative
redress?

A. Key Elements of a Redress Clause and General Principles

Section 24 of Barbados Constitution (Key Elements)

69) A person whose rights are being, have been or are likely to be contravened can
apply to the High Court for Redress.
70) Sub-section 2: The High Court has original jurisdiction to grant appropriate
remedies to secure the enforcement of Bill of Rights provisions.
71) There is also a proviso for alternative remedies where it says that the high court
should not give redress if other means of redress exist.

General Principles:

(i) The power to fashion a new remedy to give effective relief if necessary

The PC in Maharaj No. 2 said that the clear intention of the bill of rights redress clause
was to create a new remedy whether there was already some other existing remedy or not.
Demerieux suggests that this is really a new cause of action rather than a new remedy,
opening up the possibility of other remedies. Like for instance, restitution in the
Astaphan case.

In Maharaj No. 2, a barrister had been committed to prison by a judge in breach of

natural justice. This was held to be a contravention of his constitutional rights. In this
seminal decision, the PC held that the Constitution showed a clear intention to create a
new remedy whether or not there was already some other existing remedy. An order for
payment of compensation when a right protected by the Constitution had been
contravened was clearly a form of redress. The Board made clear that the contravention
in question was by the State, and its liability was not vicarious. The barrister obtained his
remedy not against a Minister, or public official, or any servant of the State, but against,
in effect, the Government.

In Gairy v Attn-Gen, the Privy Council with Lord Bingham giving the decision of the
board, held that if it is necessary to fashion a new remedy to give effective relief, the
court can do so within the broad limits of the redress clause. The court has, and must be
ready to exercise, power to grant effective relief for a contravention of a protected
constitutional right. Traditional remedies at common law cannot constrain the scope of
constitutional relief.

In Gairy, the PC held that the Minister of Finance should take all steps necessary to
procure the payment of the agreed compensation forthwith even though it was thought
that you could not grant a mandatory injunction against the Crown.

The A-G appealed against the consent order saying the Minister of Finance could not be
directed in this way. The argument was that this mandatory order against the Minister,
enforceable by contempt or other coercive proceedings, would be an order against the
crown, and in reliance on Jaundoo v Attorney-General of Guyana he held that the court
had no jurisdiction to make such an order.

In Jaundoo, a plaintiff sought a quia timet injunction to restrain the Government from
building a road across her land until adequate compensation had been assessed and paid.
The claim for an injunction was rejected because it was sought against the Government of
Guyana and would have meant issuing an injunction against the Crown. The PC held that
no court had jurisdiction to grant an injunction against the Crown. That the court
exercised its judicial authority on behalf of the crown and it was incongruous that the
crown should give orders to itself.

The PC refused to follow Jaundoo and said the following:

(a) The historic immunities of the Crown could not constrain the power of the court to
grant effective constitutional relief. It is fallacious to suppose that the rights, powers and
immunities of the Crown are immutable. They have over time been attenuated and
abridged. It is in no way inconsistent for and independent State, while continuing to bear
full allegiance to the Crown, to circumscribe the historic rights, powers and immunities
pertaining to the Crown in its governmental capacity.
(b) By chapter 1 and s 106 of their Constitution the people of Grenada established a new
constitutional order. The Constitution has primacy (subject to its provisions) over all
other laws which, so far as inconsistent with its provisions, must yield to it. To read down
its provisions so that they accord with pre-existing rules or principles is to subvert its
purpose.

(c)Historic common-law doctrines restricting the liability of the Crown or its amenability
to suit cannot stand in the war of effective protection of fundamental rights guaranteed by
the Constitution. In interpreting and applying the Constitution of Grenada today, the
protection of guaranteed rights is a primary objective, to which the traditional rules of the
common-law must so far as necessary yield.

(ii) Incorporation of state liability legislation in redress clause: Limitation of actions

Crown proceedings legislation, sometimes later known as state liability legislation

existed throughout the Caribbean prior to the written constitutions. Durity explains that
the purpose of the Act was to modernize the substantive law relating to the civil liabilities
and rights of the state and the procedural law relating to bringing civil proceedings by
and against the state. Gairy states that the object was to remove certain historical
impediments to bringing civil proceedings against the Crown.

Some constitutions directly incorporate state liability and proceedings legislation into the
redress clause. Originally known as the Crown Liability and Proceedings Act, the purpose
of the Act was to modernize the substantive law relating to the civil liabilities and rights
of the state and the procedural law relating to bringing civil proceedings by and against
the state (Durity). See e.g.:

Trinidad and Tobago Constitution

14(3) The State Liability and Proceedings Act, 1966 shall have effect for the purpose of
any proceedings under this section.

In Durity v Att-Gen, Mr. Durity was a magistrate and was suspended from his duties by
the Judicial and Legal Services Commission. Among other things he stated constitutional
proceedings claiming that the commissions decision to suspend him from his office
contravened server provisions of the constitution. He also claimed damages. His
constitutional action began seven years after the cause of action accrued. The Public
Authorities Protection Act provided that actions against public authorities were to be
brought within 12 months. It was argued that the State Liability and Proceedings Act
incorporated the Public Authorities Protection Act on limitation of time in its savings
clause in s.33.

The PC held that the incorporation of the State Liability and Proceedings Act cannot be
read as meaning that every provision of that Act is incorporated into the Constitution for
the purpose of constitutional proceedings.
Essentially the PC held that the Public Authorities Protection Act gave the State the same
statutory defence of limitation periods as if proceedings had taken place between two
private individuals, and none of that rationale could apply to constitutional action.

(iii) Res judicata applies

In Thomas v Att-Gen No.2, the Privy Council held that the plea of res judicata applies to
the constitutional remedy under the redress clause. The principle of res judicata is that it
is unjust for someone to be vexed twice with litigation on the same matter and that there
is a public interest in seeing an end and finality to litigation.

A plea of res judicata could not be raised successfully where a consent order had been
granted and the circumstances since the consent had been granted has so changed as to
make it both reasonable and just for the appellant to raise a like issue or pursue a like
claim in later proceedings (Gairy).

(iv) Redress outside the redress clause

72) The court has inherent jurisdiction to grant relief for breaches of the protection of
the law (Boyce v Joseph)
73) AG in exceptional circumstances could seek the courts assistance in determining
the constitutionality of legislation (Surratt).

B. Who has Standing to Get Relief

Who is a person?

Natural Persons
74) Includes Personal Representatives: Dorris Fuller v AG mother brought action on
behalf of her son who had been brutalized in prison.

Artificial Persons
75) Includes corporation: AG v Antigua Times

Who is a person affected? a contravention in relation to him

AG of St. Kitts-Nevis v Lawrence: the OECS Court of Appeal held that only those whose
rights are directly affected by a law can raise the question of the constitutionality of that
law.

Ulufaalu v AG: Held that the former PM could not bring an action on the basis that the
rights of his family and other MPs had been infringed. It was held that the individual
bringing the action has to be one which is personally affected.
The Bill of Rights redress clause in scope than other constitutional breaches, where
sufficient interest might be enough to bring a claim.

Cases have held that the following persons had locus standi:
76) A major shareholder and Managing Director of a company has standing in relation
to violation of rights of the company (Lawrence)
77) A listener to a call in programme has standing in relation to the unfair
removal/suspension of the programme (Benjamin)
78) A broadcaster without a valid licence whose programme was not given permission
(BBA v Courtenay)

A person whose right is likely to be contravened in relation to him/her

79) This section suggests that anticipatory review may be granted.

80) However, this will not be readily granted.
81) Bahamas Methodist v Symonette: states that anticipatory review will only be
granted where there is a risk of irreversible damage.

Issue: Can the AG refuse to enforce a law on the basis that it is unconstitutional.

Suratt Case dealt with this. The Court held:

- Generally speaking it is not for the Executive to dictate whether or not
a law is unconstitutional. The Constitutions has reserved unto the courts the power
of being the final arbiters of its meaning. This would therefore be a breach of the
separation of powers doctrine. The Executive is sworn in to obey and enforce the
law.
- However, it was held that the AG may seek guidance from the court where that law is:
a genuine mistake or a perverse enactment that would cause social or administrative
anarchy and the constitutionality of such a law is patent.
- Held: that the Equal Opportunities Act was patently unconstitutional and unworkable.
- Facts: The AG declined to implement the Equal Opportunities Act because it held that
sex did not include sexual orientation it was therefore unconstitutional.

C. Who can be Sued?

A public authority endowed with coercive powers (Maharaj No. 2).

- In Maharaj No. 2 Lord Diplock held that the Bill of Rights is about public law and
not concerned with private law as the law of torts provides sufficient accommodation
for the resolution of conflicts between private citizens.

A policeman is a public authority endowed with state powers and can thus be sued under
the redress clause (Thornhill v AG)

A judge in performance of his judicial functions is not seen as a public authority

amenable to judicial review (Maharaj No. 2; Thornhill v AG)
Who is a public authority with coercive powers?

There is no definitive list of these authorities; however the courts have looked at the
following factors in assessing whether organizations are public authorities exercising
coercive powers:
82) Source of Funding
83) Source of Control
84) Whether it is governed by statute or is a creature of statute
85) Functions of the Organization
86) Market Control: Whether it is a monopoly or not. It being a monopoly leans in
favour of it being a public authority as monopoly power is often transferred from
the State.
87) Ownership

C&W v Marpin
88) CW held a nonexclusive licence to provide national and international
communication services in Dominica.
89) The government had a 20% share in this new company
90) The company was sued under the redress clause and was thus seen as a public
authority with coercive powers.

Ulufaalu
91) Established that coup leaders cannot be sued.

Mohammed v Moraine
92) In this case a public school was held to be a public authority amenable to judicial
review.
93) The principal of the school refused to allow the applicant to wear her religious
dress to school (the hijab).
94) Issue: Whether this refusal was in breach of her fundamental rights?
95) The deciding factors that the school was amenable to judicial review were that it
was a public school in receipt of funds from the government for which it was duly
accountable.
96) Also it had to act in accordance with directives of the Minister of Education in the
exercise of its duties under the Education Act.
97) It was held that by refusing admission to the applicant on account of her not
wearing the school uniform they exercised functions of a governmental and
coercive nature and accordingly were susceptible to judicial review.

Wade v Roches
98) The Supreme Court of Belize was of the opinion that the educational institution in
question was a public authority amenable to judicial review.
99) It was held that the respondent institution carried out important functions of
enormous ramifications and impact that it could reasonably be regarded as an
emanation of the government.
 100) It was also held that the Church/State are inextricably linked with
Education and with the provision of it.
101) The respondent school also received public funds under the grant-in-aid
scheme to schools.
102) It was also held that the schools power dismiss, suspend or release
teachers from their employment was coercive.
103) Held: I can conceive of nothing more coercive in relation to an employee
than having the power over her to terminate her appointment, or release, or
suspend or dismiss her as a teacher, as paragraph (b) of section 16 [of the
Education Act] enables the respondent to do in appropriate cases.
104) Also see page 14 of Equality Worksheet re. Wade v Roches on this point.

Rambachan
105) The Court interpreted Diplocks definition of a public body to capture
non-traditional bodies.
106) Judge suggested that a public body should include, an entity however
constituted in which the government in its undoubted right to govern, decided in
the public interest to participate in a substantial way, whether financially or
otherwise.

D. Forms of Relief

1) Declaration

107) One can get a declaration that a given law is unconstitutional and which
articulates the fact of the violation (Thornhill v AG)

2) Damages/Compensation

Maharaj No. 2 established that one get damages against the Crown. A barrister
was committed to prison by a judge in breach of natural justice. This was held to
be in contravention of his constitutional rights. He was awarded compensation
from the government.

Demerieux v AG Demerieux was held in contempt in traffic court because of

her rude behaviour. However she was not given the full particulars of her charge
hence the detention was seen as a breach of natural justice and of her right to
liberty. She was awarded $15,000 in damages.

Ramanoop:
a. Held that an additional sum can be awarded in some cases to reflect the
sense of public outrage, emphasize the importance of the constitutional
right and the gravity of the breach and to deter further breaches.
b. However, it was held that punishment is not the objective so expression
such as punitive damages or exemplary damages should be avoided.
 c. Facts: Appellant was assaulted by the police during his period of arrest and
imprisonment. Ramanoop was in altercation with Indian man at a bar
after he got home Indian man showed up with police at this house police
cursed at him, slapped him, handcuffed him and started beating him all
this while he was still in his underwear at the police station the
policeman banged his head against a wall blood gushed policeman
poured rum over him wound burnt and blood an rum went into his eyes
he was then taken home by the Indian man after being forced to sign
some document.

Merson v Cartwright
d. Held: Vindicatory damages may be awarded in constitutional rights cases
as the purpose is to vindicate the right of the complainant.
e. The nature of the particular infringement may dictate that damages should
exceed a purely compensatory amount.
f. An additional sum was awarded in this case due to the wholesale
contempt shown by the authorities to the rule of law and its requirements
of the police and prosecution authorities.
g. Facts: Ms Merson was unlawfully arrested and she was incarceration in a police
lock-up cell her fingerprints were taken the police officers refused to allow her
to change her clothes they refused to allow her to use the bathroom and to
change her clothes and stated that if she was not out of the bathroom in
2minutes they would kick down the door.

3) Mandatory Injunction

Gairy v AG: Individual can get a mandatory injunction against the Crown. In this case the
Minister of Finance was directed to pay the compensation owed. Payment had to be made
for the land that was appropriated.

Observer Case: Radio Broadcasting licence was mandated to be issued to the applicant.

E. Alternative Redress

108) The High Court may decline relief based on the ground that there is
adequate means of redress available to the person under any other law (Section
24(2) Barbados Constitution).
109) In Maharaj No. 2 it was held that applicants have a right to a legal system
that it fair not infallible, they must thus exercise existing remedies first, especially
in the criminal process.
110) Chokolingo v AG: PC reiterated that one must use the remedies available
at law of an appeal in a criminal case before coming to the constitutional court.
111) Ramanoop: Where parallel remedies exist outside of the High Court
constitutional relief should not be sought unless the circumstances of the case
make it appropriate. There should be some special feature of the case which
indicates that the other forms of legal redress will not be adequate.
 112) Special Features have been held to include:
113) Breach of several rights under common law, statute and the Constitution
(Belfonte v AG)
114) See Additional Cases on Page 15 17 of Worksheet

Worksheet 5 Equality

A. Five Key Cases

B. Where is equality mentioned in the Constitution?
C. How do Courts determine discrimination?
D. Gender Discrimination
E. Who can sue and be sued?
F. The situation in Trinidad and Tobago

GENERAL INFO- the term equality is mentioned in the preamble of the constitution the
opening section of the Bill of Rights and the detailed section. NB JA doesnt have a
preamble. The significance of its location must be determined especially in countries such
as JA, conventional model type constitutions, where the anti discrimination section does
not include sex, for it therefore means that if the OS where it is mentioned, is not
enforceable, then it may mean that one cannot claim discrimination on the basis of sex in
these countries, unless the categories listed in the anti discrimination section are not
conclusive of the areas that one can plead discrimination on.

A. Five Key Cases

Girard v AG

115) Teacher got pregnant and was dismissed from her job pursuant to the
Teaching Service Commission which provided that on the second pregnancy of an
unmarried teacher she would be fired.
116) She contested the decision to release her from her duties on the basis that
it was a violation of her constitutional rights
117) Sought to rely on the opening section and the rights named therein: (i) the
right to equality before the law (ii) the right to protection of ones family
118) It was held that the opening section is not justiciable and it is simply a
forerunner of things to come as it is not included in the redress clause.
119) However, teachers claim succeeded on another ground thus she was
reinstated and awarded damages.

Wade v Roches (HC)

120) Teacher got pregnant was dismissed sought review of the school boards
decision on the basis that it was discriminatory
 121) Board in its defense claimed that the same rules applied to men. Judge
found that was impossible to apply the same way to men as the consequences of
such an act was more readily felt by the female teachers because of their
biological make-up they could not hide the fact of what they had done; pregnancy
would reveal it where as with the man it could only be discovered if he disclosed
that information.
122) Therefore the policy was found to afford different treatment to different
persons (in this case male and female teachers) attributable wholly to their sex or
gender
123) Court noted that unmarried female teachers were the prime if not the
exclusive target of the policy
124) Thus dismissing the teacher because she was pregnant was violation of her
right not to be discriminated against on the basis of sex, because no male could be
dismissed for being unmarried and pregnant
125) Conteh CJ- noted that his finding was in tune with the obligation Belize
had under CEDAW (Convention on All Forms of Discrimination Against
Women)- which pointed out that the court should give effect to the international
instrument where there is no inconsistency with the local law.
126) NB this approach differs form the pronouncement of the PC in Boyce
where they said that international instruments could be referred to if there was
ambiguity in the local law.

Wade v Roaches- (CA) facts same as above

Court basically approved of Conteh- no comment on the CEDAW point

Suratt

127) The AG was contesting the validity of the equal opportunities Act which
denied a person the right to sue for discrimination on the basis of sexual
orientation
128) Court found that the EOA was patently unconstitutional
129) A law that is discriminatory in effect has to be justified on the basis of
some reasonable distinction between those who are differently treated.
130) Sexual orientation cannot by itself afford such a distinction another
problem is how would one determine that unless it was self confessed
131) However to deny a particular category of persons the protection afforded
by the act on the grounds of sexual orientation is to deny them a fundamental
right analogous to one of the grounds stated in the constitution i.e. sex.
132) It is therefore a denial of the protection of the law and of equality of
treatment under the law
133) It is a fallacy to assert that any real or claimed rights may stem from ones
sexual orientation.
134) The fundamental rights are so called because they arise from our inherent
dignity and values as human beings.
 135) Court found that while the AG is the one conferred with the task of
defending the constitutionality of legislation passed, and that generally is accepted
e.g. in the US that the executive is to presume the validity of laws and give effect
to them, the presumption is not absolute.
136) Therefore where there is a genuine mistake or a perverse enactment whose
enactment may cause social anarchy the executive may decline to enforce it for a
limited period until the problem is rectified.
137) If there is doubt about the constitutionality of a statute then the courts
guidance can be sought or an amendment or repeal by parliament however until
then it must be enforced.
138) However it is not for the executive to say whether or not a law is
unconstitutional.

Tracy Robison: CHALLENGES THE LATTER POINT IT IS HER VIEW THAT WE OFTEN
OVERSTATE THE COURTS RESPONSIBILITY TO PROTECT THE CONSTITUTION. THOUGH
THE ARMS OF THE STATE EACH HAVE THEIR CONSTITUIONALLY PRESCRIBED ROLES
AND PROTECTING THE CONSTITUION FALLS WITHIN THE PURVIEW OF THE JUDICIARY;
WOULDNT IT BE FAIR TO SAY THAT EACH SHOULD OBSERVE AND ENSURE THAT THE
CONSTIUION IS UPHELD AND AS SUCH THE EXECUTIVE SHOULD NOT BE REQUIRED TO
ENFORCE AN UNCONSTUTUONL ACT SIMPLY BECAUSE IT IS NOT THE JUDICIARY

Matadeen v Pointu

139) Amendments passed to the examination regulations which gave an

advantage to students who did an oriental language, as essentially the students
were required to take four compulsory courses including maths and English, if the
child did the oriental language exam then their grade would be the maths and
English and the best 2 of the other3
140) Parent complaining that child discriminated against and put at a
disadvantage to a child who had been previously studying an oriental language
141) Held: No discrimination. The distinction was reasonably justified
142) Hoffman stated that the courts are mandated with the task of interpreting
the constitution and not to read what is not there interpretation not divination
143) He does not state whether equality is a justiciable concept in constitutional
terms

Bhagwandeen v AG

144) Criminal charges made against him - he got off - then he was over looked
for a promotion
145) Where one pleads discrimination one needs a comparator to establish that
a person who has same qualifications or in the same position as you save some
characteristic e.g. race or sex is being treated is differently
146) No true comparator in this case
147) Comparator can be real or illustrative
 148) Discrimination is basically the same as different treatment yet
differentiation in all circumstances is not bad if done for a legitimate reason and/
or to achieve a sound policy

B. Where is Equality mentioned in the Constitution?

1) Preamble
2) Opening Section to the Bill of Rights
3) Antidiscrimination Section of the Bill of Rights
4) Protection of the Law provision in BR (Belize)

Four Main issues in this section:

(i) Does the preamble have any weight in constitutional interpretation?
(ii) Is the opening section justiciable?
(iii) Does protection of the law include a general guarantee of equality?
(iv) Is the list of prohibited grounds of discrimination open or closed?

1) Preamble

149) In General the preamble is not justiciable but judges have often cited them
in constitutional interpretation (Gairy; Allie Mohammed).
150) Charles Matthew v R: Held that courts should have regard to the preamble
when interpreting the constitution and that any interpretation which conflicts with
the preamble must be suspect.
151) Re Reference Language Rights: suggests that the mention of the rule of
law in the preamble puts the constitutional status of the rule of law beyond doubt
and confirms that the rule of law is a fundamental postulate of our constitutional
structure.
152) Boyce v Joseph: States that the preamble is the normative part of the
constitution which breathes life into the formal provisions of the document.

2) Opening Section

153) The opening section refers to equality before the law and protection of the
law; therefore if this section is seen as justiciable then it might give rise to a
general right to equality.
154) R v Hughes: Stated that though opening section not justiciable it should be
given declaratory force and effect as an explanatory note of the sections that
follow.

3) Does protection of the law include a general guarantee of equality?

155) Matadeen v Pointu: Lord Hoffman said NO, the protection of the law does
not include any general guarantee of equality. The role of the court is
interpretation not divination.
 156) Hence the court cannot include rights which the constitution does not
provide for.
157) The court held that the Constitution reads protection of the law not
equal protection of the law the section contains no reference at all to equality,
there is thus no right to equality guaranteed from the protection of the law
provision in the opening section.
158) NB. Belize Constitution explicitly speaks about equal protection of the
law and equality before the law.
159) This debate is important as the CCJ case of Boyce v Joseph outlined that
the protection of the law guaranteed in the opening section is enforceable; thus if
protection of the law is seen to guarantee equality, then equality would by
extension be a separately enforceable right.

4) Is the list of prohibited grounds for discrimination open or closed?

- Matadeen: Lord Hoffman stated that the categories are closed.
- Nielsen v Barker: takes a similar approach, that the exclusion of sex from the
detailed provisions is decisive.

160) However, the approach in Botswana is different and the categories are
seen as open. In Dow and Makuto it was accepted that the categories are not
closed.
161) Makuto: Category held to be open in order to include discrimination based
on HIV Status.
162) It is submitted that the better approach is that taken in Botswana as it
provides for redress against discrimination for important grounds such as age,
class, HIV status, which are not normally included in the section.

C. How Do Courts Determine Discrimination?

Section 23(2) of the Barbados Constitution

163) discriminatory means: affording treatment to different persons
attributable wholly or mainly to their respective descriptions by race, place of
origin, political opinions, colour or creed whereby persons of one such description
are subjected to disabilities or restrictions to which a person of another description
are not made subject or are accorded privileges or advantages which are not
afforded to persons of another such description.

Need for a Similarly situated Comparator

164) The provision requires a comparator who is similarly situated so that it can
be proven that different treatment is being accorded to different person wholly on
the basis of one of the prohibited characteristics.
165) Bhagwandeen: Held that the affected person must have been treated
differently from some similarly situated person.
166) It was held that the comparators can either be real or fictional.
 167) Facts: Police man denied promotion - he claimed it was because criminal
charges were laid against him (these were later dropped) during the period in
which the charges subsisted he was suspended.
168) He compared himself to a Srgt. George who was promoted after being
reinstated after a long suspension. Held that George was rejected as a true
comparator as the period of suspension was the only true similarity between the
two.
169) This case reiterates that the comparator must be someone who is similarly
situated.
170) Wade v Roches: Male teachers became the comparators for female
teachers. The school insisted that unmarried men who were fathers were fired in
the same way as women. This argument was rejected as it was held that a
womans condition of being a mother is visible and cannot be hidden, while a man
can hide this fact and the information would only be discovered by confession
from him.

Not all differentiation is discrimination

171) In the Court of Appeal decision of Wade presented a critical argument that
not all differentiation is discrimination.
172) It was noted that it was noted that discrimination connotes bias and
hardship and this is not true of every instance in which there is differentiation.
173) Difference of treatment will be justified if it pursues a legitimate aim and
there exists at the same time a reasonable relationship of proportionality between
the means employed and the aim sought to be realized.
174) Three stage test in de Freitas may be helpful here in looking at whether
the limitation on the right to equality is reasonably justifiable.
175) Note: there are no express limitations on the right, (as with the right to
freedom of expression) but these limitations can be seen to be implied inherent
in the right are reasonable limitations on the right.

Is Intention to discriminate important?

176) Early Cases have suggested that intention is important. There was a
requirement to show that the person acted in bad faith in order to establish
discrimination.
177) LJ Williams: Held that to make a case of inequality of treatment from a
public authority the applicant had to establish that the state actor did not bona fide
or honestly and reasonably.
178) Mohammed v Moraine: It was held that there must be proved that there is
bad faith and a hostile intention on the part of a public authority and a lack of
even handedness in the treatment of the applicant.
179) Hinds: Strongly suggests that bad faith is a general requirement by
impliedly holding that the presumption of constitutionality can only be rebutted if
it can be proven that parliament had either misinterpreted the relevant provisions
of the Constitution or has acted in bad faith.
 180) Bhagwandeen: Stated obiter that there is no intention requirement that the
state actor has acted in bad faith.
181) Demerieux would have disagreed with Bhagwandeen as she argues that
motive is the essence of discrimination.
182) Opinion: The better view may seem to be that while motive is important in
discrimination, getting rid of the intention requirement makes it easier on the
applicant and lightens their burden of proof, as proving that someone has acted in
bad faith is often very hard to do. Also, the constitutional provisions make no
reference to intentionally, knowing, or purposefully discriminating, hence the
provision may be seen as one of strict liability, requiring no proof of intention.
183) It seems immaterial whether the state actor intended to discriminate as if
discrimination has occurred irrespective of whether it was done in bad faith, the
claimant should still be granted relief under the Constitution. This may be seen as
an application of the broad and purposive approach which should be given to
constitutional provisions (as held in Fisher).

D. Gender Discrimination

184) The constitutions of Jamaica, Bahamas and Barbados do not include sex
as a prohibited ground for discrimination in the anti-discrimination section.
185) Hence in order to establish a justiciable case for gender discrimination,
either of two views may be adopted:
186) (i) That the opening section is separately enforceable (hence a claim could
be brought based on reference to sex in the opening section.
187) (ii) That the categories are not closed, and hence sex can be included.
188) View 1 seems more likely to succeed in light of Boyce and Joseph and the
Neville Lewis case.
189) View 2 seems less likely to succeed in light of Matadeen.

Wade v Roches and Girard

The cases of Wade v Roches and Girard both have similar facts in that female teachers
were being dismissed because they were pregnant. However, in Wade it was held that this
was gender discrimination while in Girard their claim that their was sex discrimination
failed.

Sexual Oreientation
190) See Page 13 of the Worksheet

E. Who can sue and be sued?

Who can be Sued?

- A public authority exercising coercive power (Wade v Roches)

- Private Persons (in the Constitutions of Belize and Dominica)
Who can Sue?

- An individual personally affected (Ulufaalu)

- The AG: in seeking the courts opinion on the constitutionality of a piece of legislation
in exceptional circumstances (Surrat)

F. The situation in Trinidad and Tobago

191) Section 4(b) and (d) of the Trinidad and Tobago Constitution deal with
equality.
192) It is hereby recognized and declared that in Trinidad and Tobago there
have existed and shall continue to exist, without discrimination by reason of race,
origin, colour, religion or sex, the following fundamental human rights and
freedoms:
193) (b) the right of an individual to equality before the law and the protection
of the law.
194) (d) the right of the individual to equality of treatment from any public
authority in the exercise of any of its functions.
195) CBS v AG: 4(b) refers to equal protection as a matter of law before the
courts
196) Bhagwandeen: Inequality of treatment under section 4(d) is seen as the
same thing as discrimination.
197) The right to equality is not limited to the enumerated grounds - the
categories are open (LJ Williams)
198) Doubt is casted on the need to prove bad faith as was previously required
in earlier T&T cases e.g. LJ Williams (Bhagwandeen)