Redress

Constitutional Discussions 5: Other Means of Redress. When one of your fundamental rights is infringed by government, you can take the matter to court. You can bring a case under section 16 of the Constitution. This says that you may apply to the High Court for redress. Usually, this is for a declaration and damages. That does not stop you from bring a case of a different kind. For example, section 3 of the Constitution protects your right to personal liberty. This fundamental right is universally recognised in all the Constitutions of our West Indies. You will find it in Antigua and in St Kitts, and in Grenada and in St Vincent. In all these islands, you can only be deprived of your liberty in accordance with the law. A police officer might illegally lock you up in a prison cell for a week. He might “throw away the key”. He might beat you about the head with a folded telephone directory at his leisure. You could apply to the court for a declaration that your fundamental right to your personal liberty has been infringed. You could claim and be awarded damages for this breach and for the injuries which resulted. Alternatively, you could bring an ordinary court action. You could sue the officer and the government. You would claim damages for the torts of wrongful arrest and for assault and battery. You have a choice as to how to come to court.

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 West Indies. In some islands, the lawyers prefer to take every breach of the Constitution to court. In other islands, the lawyers prefer to find any alternative claim they can instead of coming under the Constitution. In some islands, the judges like to give priority to Constitutional actions. In other islands, the judges run away from Constitutional actions. There is no consistency.

We in Anguilla might get accustomed to bringing cases for breach of the Constitution to court. Our present judge might encourage that by dealing promptly with such cases. Then, after a few years, another judge might be assigned to Anguilla. This judge might not like constitutional cases. The A-G’s Chambers soon find out the preference of the new judge. The A-G will know what to do to get a well deserved constitutional case dismissed. He will point out to the judge that “alternative means of redress” exist. The judge will throw out your case and tell you to start over and come again under the ordinary law. What a waste of time and money! How distressing it is not to be sure that you can come to the High Court when your Constitutional rights have been infringed! It is you who should have the choice how to come before the Court. There are times when your lawyer might advise you to bring a Constitutional action. There are other times when she might advise you to bring an ordinary action. It should not depend on the mood of the judge or the character of the Attorney-General whether your Constitutional action will be allowed to proceed.

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.