Consitutional and Electoral Reform

Fundamental Rights and Freedoms - Part three
The following is a presentation made by Miss Bernice Lake, QC, as part of the Constitutional and Electoral Reform discussions now taking place in Anguilla.

In earlier sessions, we sought to understand the justification for the constitutional and judicial protection of human rights and in so doing we traced the religious, historical and cultural genesis of those rights.
In this presentation, we will focus upon:
Firstly , the basic fundamental rights that are guaranteed and protected under the Constitution of Anguilla:
Secondly , the remedies which are available for their protection;
Thirdly, the secondary fundamental rights which are globally recognized but we
do not as yet enjoy.
PARTICULAR HUMAN RIGHTS
1.Right to Life.
The scope of this right is illustrated by the case of SHEHLA ZIA v WAPDA a 1994 Pakistan case which shows that the guarantee of the right to life is not confined to vegetative existence, living and breathing, but extends to and includes all such amenities and facilities which a person born in a free country is entitled to enjoy with dignity, legally and constitutionally.
In that case, the petitioners were residents of an area within which the construction of a grid station was planned. They contended that the electro-magnetic field, which would be generated by the presence of high voltage transmission lines at the grid station, would pose a serious health hazard to the residents such as to infringe their constitutional right to life. The court appointed a commission to further examine and report on the scheme and observed that although “The word life had not been defined in the constitution of Pakistan, reliance would be placed on a decision of the United States Supreme Court, where it was observed that life meant not merely the right to the continuance of a person’s animal existence but a right to the possession of each of his organs, to live with human dignity and all that goes along with it, namely, the bare necessities of life such as adequate nutrition, clothing and shelter and faculties for reading and writing.

The court observed that any action taken which may create hazards of life would be encroaching upon the personal rights of the citizen to enjoy life according to the law.
The constitutional limitations on the rights must be noted.

2. Protection of Personal Liberty
Illustrations.
Implicit in this right to personal liberty, are the following:-
a. An accused person must be informed immediately of the reasons for his arrest. The charge should immediately follow arrest. The person detained must be taken before a Magistrate within a reasonable time. Excessive delay in so doing, violates not only the right of personal liberty, but may constitute cruel, inhuman and degrading treatment. The Bahamian case of BENEBYv THE COMMISSIONER OF POLICE.
b. A detainee must be allowed to consult a lawyer at all reasonable times and to do so privately. He must be informed of his right to consult a lawyer before a statement is taken.
c. A person is not liable to arrest merely under suspicion of complicity of an offence and no arrest should be made merely because it is lawful for the police officer to do so. In JOGINDA KUMAR v STATE OF UPP INDIA, the Supreme Court observed that the existence of the power to arrest was one thing; the justification for the exercise of it quite another. It would be prudent for a police officer in the interest of the constitutional rights of a citizen to make no arrest without reasonable satisfaction after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person’s complicity and as to the need to affect an arrest.

Denying a person his liberty was a serious matter. The quality of a nation’s civilization could largely be measured by the methods it used in the enforcement of criminal law.

d. Consequently, implicit in this right to personal liberty, is the detainee’s right to have someone informed of the arrest and to be informed by the arresting police officer of that right. An obligation is imposed on the arresting officer to make an entry in the diary as to who was informed of the arrest and the court must satisfy itself that these constitutional niceties have been observed. The decisions of the Privy Council in THORNHILL v THE AG 1981 AC61 and AG v WHITEMAN 1991 2 AC240 have affirmed that there is a duty on the police to inform a person under arrest or in detention of his right to consult a legal adviser of his choice.

This right overlaps with the right to secure protection of law and freedom from arbitrary search and seizure which are dealt with later.

3. Protection from Slavery and Forced Labour
We need go no further than our own personal experience as a slave society to come to grips with the pith and substance of this protection. The ravages and debasement of human dignity wrought by the institution of slavery still permeate our society and shape and shackle our personalities as a people. By and large we have remained compliant to colonial dictates; we have been crippled in our interpersonal relationships by such inconsequential matters as shades of skin colour and texture of hair. We have not burst the bonds of white domination and grasped the self-confidence, sense of self-worth of a free and unfettered people. We have been traumatized into evaluating each step along the way by the measure of what our colonial masters will have us do.

Seen from that perspective, the right to reparations for the dehumanizing effects of the institution of slavery, is as pertinent to us in Anguilla today as it has been for the Jews out of Hitler’s holocaust or the Japanese-Americans interred in forced-labour camps by the United States Government in the course of World War II.

4. Freedom of Movement
Like the right to life, this right to freedom of movement extends and protects more than the physical capacity to go from one place to another. It embraces concepts such as the unity of the family: it impacts upon belonger status as well as citizenship; and all social circumstances which would influence and compel a person to leave his country when he does not want to go, or remain in the country when in fact he would wish to depart.

Illustrations
a. In MINISTER OF HOME AFFAIRS v FISHER 1980 AC319, the Privy Council held that the comparable section of the Constitution of Bermuda protected the right to freedom of movement as well as recognized the unity of the family as a group. It accepted the principle that young children should not be separated from a family group which as whole belonged to Bermuda and should be protected without discrimination as to place of birth. Accordingly, the foster children who were illegitimate and born in Jamaica were entitled to a declaration that a ministerial order refusing them permission to reside with their mother and her husband in Bermuda was unconstitutional.
b. RATIGAN v CHIEF IMMIGRATION OFFICER 1994 illustrates that the right to freedom of movement extends to the right of an alien spouse to be granted a right of residence. The applicants, three female citizens of Zimbabwe by birth, were married to non-nationals and all three husbands were denied residence permits. The wives sought a declaration that the refusal to issue permits to their spouses and the consequence that their husbands should leave the country circumscribed their unqualified constitutional right to freedom of movement on the ground that, as a result of the refusal the wives would be compelled to reside in a country other than Zimbabwe in order to maintain their marital relationships. In granting the declaration sought, the Supreme Court observed that the right to freedom of movement had to be viewed in light of the institution of marriage, the most fundamental institution known to man. Marriage embodied the obligation to found a home, to cohabit, to have children and to live together as a family unit. Accordingly, to prohibit a husband from residing in Zimbabwe and so disable them from living with their wives in the country in which they are citizens was in effect to undermine and devalue the protection of the right to freedom of movement accorded to each of the wives as a member of a family unit. The action of the immigration authorities contravened the right to freedom of movement.
c. AGBAKOBA v THE DIRECTOR OF STATE SECURITY SERVICES 1994 Nigeria. The appellant, president of a non-governmental human rights organization was en route to participate in a human rights conference in the Netherlands. At the airport his passport was impounded by a State Security Officer without giving reasons. He contended that the action of the state violated among other rights his freedom of movement. The government contended that the passport was the property of the government who accordingly had the right to withdraw it at any time. The court of appeal held (1), as a citizen he had the right of freedom of movement not to be refused entry or exit from his country. Such a right would be empty without a concomitant right not to be deprived of the document, which made such movement possible. The citizen therefore had a legal right to a passport and the seizure constituted a violation of the appellant’s right to freedom of movement. The passport was ordered to be released. The court observed that the statement endorsed on the passport that “It remains the property of the Government” meant that the holder could not transfer, sell or otherwise dispose of it but the statement that “It may be withdrawn at anytime” was contrary to the constitutionally guaranteed right to freedom of movement and should be modified to reflect the true state of the law.
d. JOSE ABRAHAM v THE ATTORNEY GENERAL OF ANGUILLA.
The constitutional limitations must be noted.

5. Protection from Inhuman Treatment
This is a right which has been subject to a great deal of debate and review within recent times, particularly as it relates to the death penalty. It has enjoyed much vigor since the death penalty cases in South Africa, Hungary and in the Caribbean courts culminating in FOX, SPENCE AND HUGHES. In the South African case of MAKWANYANE the constitutional court ruled that the death penalty is cruel, inhuman and degrading punishment, given that it can only operate in an arbitrary manner, and carrying it out destroys life, annihilates human dignity and is irremediable.
However, the scope of the right extends far beyond matters of life and death as is demonstrated by the Bahamian case of TYNES v BARR 1994. The Plaintiff while walking along a concrete walkway at the airport to catch a chartered flight, was intercepted by a police officer who demanded that he remove from the area. After twice explaining the reasons for being on the walkway and that the pilot of the plane was waiting for him, the police arrested the Plaintiff, gripped him by the back of his trousers and frog-marched him to a police booth within the airport. There he was subjected to a bodily search by the police including patting through the Plaintiff’s clothing of his private parts. He was then taken handcuffed in an open jeep, clearly visible to the public, to the police station where he was forcibly stripped searched while handcuffed, finger-printed and placed in a cell. He was denied the use of the telephone to call a lawyer but was later released on bail charged with offences relating to trespass contrary to the Civil Aviation Act. The Supreme Court found that the conduct of the police officer reflected total disregard for human decency, was degrading and fell within the scope of the protection against inhuman and degrading treatment.

Punishment which is disproportionate in severity to the offence charged may also constitute a violation of this right. See STATE v VRIES 1997 4LRC 1. In 1997 the accused who had a similar previous conviction for theft of a sheep in 1969 was convicted of theft of a goat. In the magistrate’s court the accused was sentenced to eighteen months imprisonment, and the matter was submitted to the high court for review. The high court judge queried the sentence on the ground that a 1990 legislation provided a minimum mandatory sentence of three years imprisonment fort a second or subsequent conviction of stock theft. Before the Supreme Court, it was declared that the 1990 legislation, which imposed the mandatory three-year term, infringed the protection against cruel, inhuman and degrading treatment, as the sentence was totally disproportionate to the offence charged.

As societies standards of decency and what shocks the moral conscience will change from to age to age, it is important with respect to this particular right that in any future constitution in Anguilla, we guard against incorporating restrictions upon the evolution of social decency such as are to be found in section 7 of the Constitution of Anguilla. Section 7 seeks to preserve sentences or punishment applicable under pre-existing law whether or not such punishment startles and shocks the moral conscience and human decency. The question must be asked whether in light of Section 7, the death penalty or the cat-o-nine tail could have been declared inhuman and unconstitutional.

6. Deprivation of Property.
Examples of violation of this right will readily come to mind e.g. seizure of a person’s movable goods without lawful justification or excuse; the entry upon a person’s land and cutting a road through it without complying with the necessary statutory provisions. The particulars of this right must be observed. An individual’s property must not be compulsorily acquired by the State, unless it honours and observes certain obligations imposed by section 7 of the Constitution. That section provides that there must be a written law which:- Firstly prescribes the principles on which and the manner in which adequate compensation is to be determined. This is a matter of significance and concern to Anguilla, as we do have on the books land acquisition legislation, which attempts to fix in an arbitrary way the compensation to be paid when Government acquires land. The thought is very prevalent in certain circles that land can be acquired at less than market value or at some price of cents per square foot as fixed by the Acquisition Ordinance since the 1930’s and 50’s. At that time, the nature of land use was different and land prices were also different. The Constitution requires adequate compensation, that is fair market value as at the time of acquisition.

Secondly, the compensation once determined must be paid promptly. If the payment is not promptly made, there is a violation of the protection of the right.

Thirdly, the manner in which the compensation is to be given must also be fixed by law and provision must be made for enforcement of the right to payment.

It has been characteristic of governments of the region to dishonour the payment of judgment debts and to delay payment of compensation for property compulsorily acquired. In the recent case of JENNIFER GAIRY v THE ATTORNEY GENERAL OF GRENADA PC 2001, the Privy Council has held that where a violation of the right to protection from deprivation of property has been proven, the court has the power to grant a mandatory order against the Minister of Finance by way of redress for the violation and where the Minister of Finance does not comply with such order the court has the power to enforce the payment by making an order for his committal to prison for contempt of court..

Again, this protection needs to be carefully guarded in any reform of the constitution and in that regard we need to learn from the mistakes of other places. Section 6 of the Anguilla Constitution, provides for the preservation of existing laws which were in force before the commencement of the constitution. It also provides that all such existing laws must be construed with such modifications and adaptations, qualifications and exceptions as are necessary to bring them into conformity with the constitution. Under this provision, the old Land acquisition Ordinances or Acts must be construed with modification to ensure that the constitutional protection against deprivation of property is not infringed. However, given the spirituality of land in Anguilla, we must be careful not to follow other jurisdictions which by expressly preserving the pre-constitution Land Acquisition Acts have rendered the right to protection of property meaningless e.g Section 9 to Schedule 2 of the Antigua Constitution. By reason of these difficulties, arising from the preservation of pre-existing law and the frequent failure to effect the requisite modification, the Human Rights Caribbean Symposium at the Cayman Islands 2001, passed resolutions as follows:-

“Government should conduct a thorough review of existing legislative provisions to ensure that they are in harmony with constitutional and conventional human rights norms.”

To be continued next week

Miss Bernice Lake