Section 16 gives the High Court the jurisdiction to hear a case brought for infringement of your rights. A problem arises with the proviso to subsection (2). A proviso is a sentence which begins, “Provided that . . .” This one says, “Provided that the High Court may decline to exercise its powers under this subsection if it is satisfied that adequate means of redress for the contravention alleged are or have been available to the person concerned under any other law.” This proviso has caused confusion up and down the
The Commission therefore recommended, at paragraph 27 of their Report, that the proviso should be removed in its entirety. That would oblige a court to deal with your deserving Constitutional action, regardless if you could have sued for something else. This is not a novel suggestion. The proviso has caused so many problems that it has been removed from the Constitutions of other jurisdictions. I no longer have my notes with me on this point. Perhaps some lawyer would like to remind us which countries have done this? It was very regrettable in my view when the members of the House of Assembly persuaded themselves in their meeting at Limestone Bay Café that they would not support this recommendation. They preferred to keep the Constitution as it is, with the confusing proviso!
A pox on their houses, you might say. Let them wait until they want to bring a Constitutional case and the judge tells them their case is dismissed because they could have brought an ordinary lawsuit! The problem is that we cannot wait until then. It is you or me who might want to bring a case. We will not be sure whether to sue in one way, or whether we must sue in another. Neither will our lawyer know what to do!
I can only hope that the visiting British team will not give us any problem just because the Members of the Assembly did not support this recommendation.