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COMMONWEALTH
HUMAN RIGHTS LAW DIGEST |
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COMMONWEALTH
HUMAN RIGHTS LAW DIGEST |
| EDITORIAL REVIEW AND UPDATE VOLUME 1 ISSUE 3 EDITORIAL REVIEW AND UPDATE VOLUME 1 ISSUE 2 EDITORIAL REVIEW AND UPDATE VOLUME 1 ISSUE 1 EDITORIAL REVIEW AND UPDATE VOLUME 2 EDITORIAL REVIEW AND UPDATE VOLUME 3 ISSUES 1 & 2 BACK TO VOLUME 3 ISSUE 3 |
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This issue of the Digest focuses primarily on human
rights decisions handed down by national courts in Commonwealth jurisdictions
during the first half of 1996 and includes, for the first time, summaries of
decisions from Lesotho, The Gambia, Dominica and Guyana. Four decisions from India summarised in this issue illustrate growing attention to gender equality and the domestic application of the Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW) in the region. The Indian Supreme Court addresses the specific issue of affirmative action in Government of Andhra Pradesh v P B Vijayakumar and Valsamma Paul v Cochin University and considers the issue of discrimination against women in relation to personal laws on ownership of property and tribal laws on succession in C Masilamani Mudaliar v Idol of Sri Swaminathaswami Thirukoil and Madhu Kishwar v State of Bihar respectively. The Court�s recent landmark decision on protection of women from sexual harassment in the workplace, Vishaka & Ors v State of Rajasthan, also contains important statements on the domestic application of international conventions and norms, including CEDAW, and will be included in a future issue of the Digest. Cases dealing with sex discrimination in employment and in the provision of insurance benefits to married women are also included in this issue. Two Privy Council cases from the Commonwealth Caribbean address the subject of the death penalty. Reckley v Minister of Public Safety and Immigration (No 2) is an appeal from the Bahamas on whether the exercise of the prerogative of mercy is subject to judicial review and also raises the issue discussed in Guerra v Baptiste, namely whether the accused was given reasonable notice of the time of execution. Another case from the Bahamas, Henfield v Attorney-General of the Commonwealth of Bahamas, focuses on the question of undue delay between sentencing and execution and, in particular, the application in the Bahamas of the five year �target period� laid down in Pratt v Attorney-General for Jamaica. The Judicial Committee examines whether the target period should be extended so as to take into account the country�s previous moratorium on executions (pending the outcome of appeals on the constitutionality of the death penalty itself) or reduced given that the jurisdiction is not a signatory to the Optional Protocol to the International Covenant on Civil and Political Rights. The significance of this last issue has recently been highlighted by Jamaica�s decision, in October 1997, to withdraw the right of individual petition to the United Nations Human Rights Committee by denouncing the Optional Protocol. It is understood that a number of other countries in the region are considering following suit. The issue of delay in relation to execution of the death penalty also forms the backdrop to a Nigerian decision summarised in this issue, Nemi v Attorney-General of Lagos State, which upholds the right of condemned persons to enforce their fundamental rights. The Court of Appeal referred the substantive question of whether prolonged confinement on death row constitutes torture or inhuman or degrading treatment under the Nigerian Constitution back to the High Court for determination and we hope to include a summary of that decision in a future issue of the Digest. Cases from both Pakistan and South Africa on criticism of public officials are included in this issue. The Lahore High Court in Majid Nazami v Sheikh Muhammad Rashid applies the New York Times Co v Sullivan approach in holding that the defendants could successfully claim qualified privilege for the publication in question as there was no evidence that they had acted recklessly or maliciously. In Holomisa v Argus Newspapers Ltd, however, the Supreme Court (Witwatersrand Local Division) prefers the High Court of Australia�s �reasonableness� standard adopted in the Theophanous case. Another South African case, Du Plessis & Ors v De Klerk & Anor, and the Canadian Supreme Court�s decision in Hill v Church of Scientology of Toronto both focus on the ambit of the right to free expression in relation to the common law of defamation (and the horizontal application of fundamental rights and freedoms). Also of interest is the Indian Supreme Court decision Dr Ramesh Yeshwant Prabhoo v Prabhakar Kashinath Kunte (also referred to as one of the �Hindutva cases�), where the Court holds that a prohibition on appeals to candidates� religion during an election campaign constitutes a reasonable restriction on the right to free expression in a secular society. Addressing the issue of commercial speech, the Canadian Supreme Court in RJR-MacDonald Inc v Attorney General of Canada holds that legislation prohibiting or restricting tobacco advertising is not a justified limitation on tobacco manufacturers� right to free speech under section 1 of the Charter of Rights and Freedoms. In Fernando v Sri Lanka Broadcasting Corporation, the Sri Lankan Supreme Court considers whether the suspension of a public radio series infringes the right of a listener to continue to participate in the programmes. The interaction between free expression and fair hearing is illustrated by two cases on pre-trial publication of newspaper articles concerning an accused; in Gisborne Herald Co Ltd v Solicitor-General, the New Zealand Court of Appeal addresses the issue in the context of an appeal from a newspaper charged with contempt for publishing information about the accused, while in Boodram (aka Dole Chadee) v Attorney-General of Trinidad and Tobago & Anor the Privy Council considers a claim by the accused that publication prejudiced his right to a fair trial. The Privy Council holds that any prejudice caused to the accused could, in the circumstances of that case, be adequately remedied by the protective mechanisms traditionally available to a trial judge. This approach has been followed in a subsequent Privy Council appeal from Trinidad and Tobago on the issue of pre-trial delay, Director of Public Prosecutions v Jaikaran Tokai. This issue also contains two decisions on the privilege against self-incrimination. In Brannigan v Sir Ronald Davison the Privy Council (on appeal from New Zealand) decides that the privilege cannot be invoked to protect the plaintiffs from giving evidence to a Commission of Inquiry even though the fact of giving evidence would expose them to criminal proceedings in a foreign jurisdiction. In Ferreira v Levin NO, the South African Constitutional Court declares that a Companies Act provision which allows witnesses to be required to answer incriminating questions in relation to winding-up proceedings is invalid to the extent that it compels such witnesses to give evidence which may subsequently be used against them in criminal proceedings. The Ferreira decision is also significant for the Court�s discussion of the meaning of �freedom� in the constitutional right to freedom and security of the person (s 11(1)), a provision which the court subsequently revisits, amongst others, in a referral on the constitutionality of holding a person liable to summary imprisonment for refusing to answer questions in a criminal inquiry. Lastly, the rule in the long-standing South African decision R
v Steyn that the contents of a police docket, including prosecution witness
statements, are privileged was rejected in decisions of both the South African
Constitutional Court and the Namibian Supreme Court reported in this issue. In
the view of both courts, the withholding of such information from the accused
infringes his or her right to a fair trial under the new Constitution of the
relevant jurisdiction.
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Compensation for breach of fundamental rights 1.2 | Fair Hearing 1.2 | |
| Death Penalty 1.2 | Interpretation of limitation clauses 1.2 | ||
| Equality 1.2 | Liberty & Security 1.2 | ||
| Expression 1.2 | Religion 1.2 |
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A number of decisions summarised in this issue of the Digest deal with the constitutionality of the death penalty, in particular State v Makwanyane, where the South African Constitutional Court holds that the death penalty breaches the prohibition on cruel, inhuman or degrading punishment and does not constitute a justifiable limitation under the interim Constitution. The case is also notable for its discussion of the right to life, its wide survey of international and comparative human rights jurisprudence on the death penalty, and its examination of various justifications (such as deterrence, prevention and retribution) for retaining it. By contrast, in State v Ntesang the Botswana Court of Appeal declares itself constrained to uphold the death penalty by the wording of certain exceptions in its Constitution but also takes judicial notice of developments to abolish the death penalty at an international level and calls upon the legislature to consider effecting appropriate changes at a national level. The South African Constitutional Court specifically rejects public opinion as a determinative factor in deciding whether the death penalty is justified under the Constitution, whereas the Tanzanian Court of Appeal in Mbushuu (alias Dominic Mnyaroje) v The Republic holds that regard must be had to the context of the particular society in question in determining the proportionality of such a penalty. Similarly, while the Tanzanian court does not consider the death penalty to be arbitrary given existing safeguards in domestic criminal law and procedure, the arbitrariness of the application of the death penalty is a factor which weighs heavily with the South African court in reaching its decision. The Privy Council continues to hear cases from the Caribbean
Commonwealth seeking to resolve the exact parameters of its decision in Pratt
v Attorney-General for Jamaica that undue delay in the execution of the
death penalty may, in itself, amount to inhuman punishment. The Singapore Court
of Appeal�s different approach is illustrated in Jabar v Public
Prosecutor, where it follows a United States case in deciding that the
anguish experienced by prisoners on death row does not amount to an independent
infringement of their constitutional rights and holds that the courts cannot
commute a sentence of death to one of life imprisonment on the grounds of undue
delay. A further decision of the Privy Council on the issue of delay in the
execution of the death penalty will be summarised in a subsequent issue of the Digest. This issue includes decisions from Australia, India and Zambia which deal with defamation law and the exception for criticism of public officials, established in the United States case of New York Times v Sullivan. In the landmark Theophanous case, the High Court of Australia upholds an earlier ruling that there is an implied constitutional right to freedom of political expression in Australian law and adopts a similar rule to that in Sullivan. The court has since revisited the scope of the constitutional freedom in two recent cases, Lange v Australian Broadcasting Association and Levy v The State of Victoria & Ors. These cases, as well as significant decisions from Canada, Pakistan, New Zealand and South Africa on the ambit of free expression in relation to criticism of public officials, will be summarised in a future issue of the Digest. Another case summarised in this issue which examines the interaction of free expression and defamation law is the Hong Kong Court of Appeal�s decision in Cheung Ng Sheong v Eastweek Publisher Ltd, where the award of excessive damages by a jury for a libel which was not serious and was unlikely to have had any effect on the respondent�s reputation is held to be likely to have a serious effect on freedom of expression. This issue contains a broad range of topics coming under this general heading, including an important decision from the Pakistan Supreme Court on the appointment and transfer of judges and a challenge to Canadian environmental protection legislation on the grounds that it is vague and overbroad. Three interesting decisions under the New Zealand Bill of Rights relate to the use of police informers to elicit evidence from an accused who has been released on bail, police obstruction of an accused from gathering evidence useful to the preparation of her defence, and undue delay in bringing a case to trial caused by the prosecutor�s unilateral action in vacating the original trial dates. The South African Constitutional Court�s decision in State v Zuma holds that a presumption which places the onus on the accused to prove that his or her confession was not voluntary breaches the right to a fair trial and is not justified under the Constitution. In an appeal from Belize, the Privy Council has held that a provision requiring the accused to prove provocation infringes the presumption of innocence. Interpretation of limitation clauses (top) State v Zuma is also notable for the South African Constitutional Court�s interpretation of the fundamental rights enshrined in Chapter 3 of the Constitution and the general limitation clause (s 33), an approach which has been built on in many subsequent constitutional decisions in that jurisdiction including Makwanyane, State v Williams and Coetzee v Government of the Republic of South Africa, all of which are summarised in this issue. The South African Constitutional Court decides in Coetzee that imprisoning individuals for failing to pay a judgment debt breaches the right to freedom and security of the person. This decision has subsequently been applied by the Namibian High Court and considered by the Supreme Court of Zimbabwe, both of which will be summarised in future issues of the Digest. Also touching on the issue of the right to liberty, but in
the sense of a parent�s right to choose medical treatment for his or her child
in accordance with religious beliefs, is the Canadian Supreme Court�s decision
in B v Children�s Aid Society of Metropolitan Toronto. The New
Zealand Court of Appeal has taken a contrasting approach to the same issue in
its recent decision, Re J (An Infant): B and B v Director-General of
Social Welfare, which will be included in the next issue of the Digest. The New Zealand Court of Appeal�s decision in Simpson v Attorney General (also known as the Baigent case) that a public law remedy for a breach of fundamental rights can be read into the Bill of Rights, despite the absence of an express remedies provision in that Act, is important both for its illustration of the court�s willingness to read in an effective remedy when one would not otherwise have existed and for the extensive reference made in the case to international human rights obligations and comparative jurisprudence. The Baigent case has in turn been cited in a number of other cases on this matter including the Indian Supreme Court decision of Shri D K Basu v State of West Bengal, which will be summarised in a subsequent issue of the Digest. Two Canadian Supreme Court decisions on equality, handed down on the same day, provide an interesting contrast, both as to the majority�s interpretation of �spouse� so as to include a common law partner but exclude a partner in a same-sex relationship, and as to the varying approaches different members of the court adopt to the interpretation of the Canadian Charter guarantee of equality without discrimination. A similar substantive issue has recently been the subject of an unsuccessful challenge in the Court of Appeal in England and Wales. The court upholds (by a majority of two to one) tenancy legislation which has the effect of discriminating against same-sex partners but calls upon the UK Government to consider amending the relevant Act to reflect current social attitudes.
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Perhaps the most striking development to human rights law reported in this issue of the Digest is found in a series of cases from Africa concerning the requirement of a permit to hold a peaceful assembly. Firstly, there are two decisions from the High Court of Kenya and Zanzibar in which the actions of certain officials in prohibiting the respective applicants from freely assembling were found to be unconstitutional. The officials concerned had no power to so prohibit the applicants and such a hindrance did not, therefore, pass the first hurdle as a permitted restriction to this fundamental right. In other words, the hindrance was not "contained in or done under the authority of the law." In four additional cases, the legislation requiring a permit itself was under challenge. In all four cases - before the Supreme Courts of Ghana and Zimbabwe, the High Court of Tanzania and most recently the Supreme Court of Zambia - the legislation was struck down as unconstitutional as contrary to the fundamental rights to freedom of assembly and expression. The grounds for finding such legislation invalid were very similar. In all four decisions, the lack of adequate guidelines and effective control of the discretion to grant assembly permits contained within the legislation permitted the taking of arbitrary measures. In three of the decisions, the court went further to hold that the licensing of peaceful assemblies could not be reasonably justifiable:_in both Zimbabwe and Zambia, because it could not be regarded as "reasonably justifiable in a democratic society" as required under their limitation clauses; and in Ghana, because it was not "reasonably justifiable in terms of the spirit of this Constitution". Two decisions reported in this issue concern the subject of conscientious objection. The Supreme Court of Singapore upheld the prohibition on the Jehovah�s Witnesses as a society, and of their publications, on the ground that they presented a threat to national security by discouraging the performance of military service. This decision may be compared with that of the Court of Appeal of Bermuda which held that the right to freedom of conscience not only includes the right not to serve in a combatant role but also the right not to serve in the military in any capacity whatsoever. The interference was not reasonably required in the interest of defence, as stated, since the effect on defence would be small. Delivering the judgment for the Bermuda Court of Appeal, Huggins JA pointed out that, in determining whether an infringement had occurred, the court was not to be concerned with the reasonableness of the "belief". The Zimbabwe Supreme Court was of a similar view in a case invoking freedom of conscience (but not concerning conscientious objection) in holding that Rastafarianism held the status of a religion and that dreadlocks were a symbolic expression of that religion, i.e., that the court should only be concerned with the sincerity of the belief. In that case, the decision to deny registration to an advocate on the grounds of his dreadlocks hairstyle was held to be unconstitutional and void. The scope of the right to freedom of movement (top) Adopting a broad and purposive approach appropriate to the interpretation of constitutional rights and recognising that for a right to be meaningful it must be effective, the Supreme Court of Zimbabwe and the Court of Appeal of Nigeria explored some of the perimeters of the right to freedom of movement. This right was held to encompass the right to a passport; and the right of a citizen that her alien spouse be granted a resident�s permit and be permitted to seek gainful employment. The scope of the right to life (top) The Indian Constitution does not include an express guarantee against cruel, inhuman and degrading treatment. Nevertheless, the Supreme Court, in the early 1980s, in the case of Francis Corali v. Union Territory of Delhi, implied into the provision relating to the right to life, a right of "human dignity". In a decision reported in this issue the Supreme Court of India affirmed its earlier decisions to hold that hand or foot cuffing, unless applied under the most extreme circumstances and approved by the courts, would violate this implied right. Ignorance of the earlier decisions of the court by the police did not prevent the finding of such violation. The Indian Supreme Court in Francis Corali also interpreted the right to life to include, in the words of Bhagwati, J., "the bare necessities of life" such as adequate nutrition, clothing and shelter. This has since been further extended to include "quality of life," including the right to basic education and a healthy environment. A decision by the Supreme Court of Pakistan, reported in this issue, considered such decisions of the Indian Supreme Court in reaching its conclusion that any action taken which may endanger a citizen�s health could encroach upon his or her personal right to enjoy the right to life. In that case, Saleem Akhtar, J held that the petitioners were entitled to be protected from being exposed to the possible hazards of electromagnetic fields or any other such hazards due to construction of a power station or similar installation. Detainees� right to consult lawyer and be informed of this right (top) In a large number of decisions reported in this issue, the courts have confirmed that the right of a detainee to consult with a lawyer is implicit in the constitutional right to be represented by a lawyer of one�s choice. Sitting in the High Court of Malawi, Chatsika, J. considered that to deny such access would be "inhuman" and was unconstitutional as contrary to the principles set out in the Universal Declaration which is expressly recognised under s. 2 of the Malawi Constitution. Three of the decisions went further to hold that a detainee has a concomitant right to be informed of his or her right to consult a lawyer. The Constitutional Court of Seychelles established a presumption that, where there is no contemporaneous police record to the contrary, the detainee has not been informed of this right. Delivering the judgment for the Court of Appeal of Western Samoa, Cooke, P. specified that a detainee must be so informed before any statement is taken and that a confession obtained by a breach of a fundamental right was prima facie inadmissible. In the Supreme Court of Mauritius, Boolell, J. ruled a statement inadmissible as evidence on the ground that the accused had not been informed of her right to consult a lawyer before the statement in question was recorded. The Supreme Court of India in Joginda Kumar v. State of U.P. & Ors, extended the right to personal liberty to include the right to have someone, such as a family member or friend, informed of any arrest and the place of detention and, furthermore, a requirement that the detainee be informed of this right. The Supreme Court issued directions that the name of the person informed of the detention must be recorded in the police diary, in addition to the reasons for the arrest. In another decision reported in this issue, the High Court of Hong Kong warned that to impede a prisoner in his legal advice may amount to a contempt of court. In that case there was an unjustified delay in the disclosure of relevant documents requested by the prisoner�s lawyer. Judicial discretion and the right to bail (top) The scope of the right to bail under constitutional rights provisions relating to personal liberty is considered in two reported decisions. The Supreme Court of the Bahamas followed the Privy Council decision in Attorney General of the Gambia v. Momodou Jobe in holding that there was no absolute right to bail contained within the respective fundamental right provision relating to personal liberty but merely a right to bail in the situation where an accused would not be tried within a reasonable time. Given this reasoning, the legislation under challenge, which provided that "the Court shall deny bail" under certain circumstances, would have been inconsistent on its face. Sawyer, J., however, applied the so-called "presumption of constitutionality" and interpreted the statute so as to impose no absolute duty on judges to deny bail, thus ensuring judicial discretion, and with it the legislation�s constitutionality. The High Court of Kenya, in the other reported decision, did not apply this presumption and accordingly held legislation prohibiting bail for certain offences null and void. Inconsistency with the right to personal liberty was not the only ground on which the High Court of Kenya found the legislation restricting bail unconstitutional. The court followed its earlier decision in Ngui v. Republic of Kenya to find such legislation also inconsistent with s. 60(1) of the Constitution which gives the High Court "unlimited original jurisdiction in civil and criminal matters and such other jurisdiction and powers as may be conferred on it by the Constitution or any other law." A similar conclusion, that the granting of bail must be exercised on the basis of judicial discretion, was reached by the Supreme Court of Mauritius in Nordally v. Attorney-General where it was held that:
It is perhaps pertinent to note here that the Indian Supreme Court has indicated that the separation of powers form part of the "basic structure" of the Constitution such that it is not amenable to alteration, without a referendum, even by parliamentary constitutional amendment. The treatment of prisoners (top) In two decisions from the Commonwealth Caribbean, conditions in detention were found to be inhuman and degrading. In the case of Samuels v. The Attorney General, before the Jamaican Supreme Court, the defendant failed to file any defence to the �blatant� infringement of this right. An interlocutory judgment was, therefore, entered in the plaintiff�s favour and the court concerned itself with the issue of damages.Sitting in the Supreme Court of the Bahamas, Sawyer J., in the other reported decision, warned that a person awaiting trial should not be subjected to what may be regarded as "pre-trial punishment" as this would be tantamount to a reversal of the presumption of innocence.In another reported case, the same judge, in assessing damages, took into account the humiliation and indignity suffered by the plaintiff during his unlawful arrest and detention which included two bodily searches. In Namibia, where the death penalty is expressly prohibited under the Constitution, the Supreme Court considered the constitutionality of the sentence of life imprisonment. It was held to be constitutional as a sentence per se, in view of the particular context in which it is administered in Namibia. However, Mahomed, CJ. made clear in his judgment (with which the other members of the court agreed) that life imprisonment could not be justified if it effectively amounted to a sentence which "lock[ed] the gates of the prison irreversibly". Life imprisonment was also held to be constitutional in the particular circumstances of the case i.e., as a sentence not grossly disproportionate to the applicant�s particular crime. In another decision concerning the treatment of prisoners, the Indian Supreme Court, as mentioned earlier, confirmed that hand or foot cuffing is prima facie inhuman and violative of the right to life and personal liberty. Such treatment could, depending on the circumstances, amount to torture and the reasons for the "extreme circumstances" necessitating such a course of action were to be recorded and approved by the courts. The right to freedom of expression was invoked by prisoners in two reported decisions. The Supreme Court of Zimbabwe held that regulations permitting prisoners to send and receive only one letter every week were disproportionate to any constitutionally protected interest and infringed the right to protection from interference with one�s correspondence. Gubbay CJ. considered that such a restriction further impinged on the rights of the non-prisoner as author or intended recipient of such correspondence and that to suppress the right to correspond to such an extent was an affront to the prisoner�s dignity. In reaching its decision, the Zimbabwe Court confirmed that a prisoner retained all the rights of a free citizen save those withdrawn from him by law, expressly or by necessary implication. The High Court of Hong Kong, in another decision reported in this issue, also adopted this principle, Sears, J. holding that the removal of certain sections of the newspapers, subscribed to by prisoners, violated their right to receive information. Preamble or umbrella provision (top) One of the newest members of the Commonwealth, Cameroon, has recently enacted a new constitution. Under the previous constitution, fundamental rights were mentioned in the Preamble only. Sitting in the High Court of Cameroon, Moma, J. decided that taxes previously exempted under earlier legislation were not to be retrospectively imposed as this would be contrary to the spirit of the Constitution as reflected in the Preamble which prohibited retroactive laws. Although the 1996 Constitution of Cameroon still confines fundamental rights guarantees to the Preamble, it expressly provides under Section 65 that "the Preamble shall be part and parcel of this Constitution." This accords with the decisions of a number of Commonwealth jurisdictions, two of which are reported in this issue, which have stressed the key importance of the Preamble or so-called "umbrella provision" and accepted its status as conferring substantive rights. The High Court of Australia has affirmed the principle that courts should interpret ambiguous statutes in accordance with international treaty obligations. It has also held that international treaties provide a legitimate guide to the development of the common law where it is uncertain or developing. In Minister for Immigration and Ethnic Affairs v. Teoh, the High Court held that ratification of an international treaty creates a legitimate expectation, in the absence of any legislative or administrative statement to the contrary, that statutory discretion granted to a decision-maker will be exercised in accordance with that treaty. As observed by Cooke, P. in the New Zealand Court of Appeal, "the law of international human rights and instruments is undergoing evolution." Special procedural requirements for actions against the State (top) In three reported decisions, courts had to decide whether certain unfulfilled procedural requirements for actions against the State or state officials would bar application for redress under the fundamental rights provisions of the constitution. The High Court of Uganda found that a statutory requirement of sixty days notice before any suit could be filed against the government applied only to civil actions and not applications under the constitution. Egonda-Ntende, J. was of the opinion that such a requirement would in itself constitute an unjustified hindrance to persons seeking the protection of the courts where their rights were already being, or were about to be, contravened; and that such persons were not to be denied access to the court by "procedural hiccups". The Supreme Court of South Africa, sitting in Transkei, cast doubt on the compatibility with the interim South African Constitution of shorter periods of limitations for actions against the State. White J. failed to see why common law periods of prescription could not apply in respect of claims against the police and why, in the absence of any prejudice, the government persisted in hiding behind such "draconian" powers. The Ciskei Division of the Supreme Court, in a later decision, struck down similar legislation as contrary to the right of equality before the law and the principle of equal access to courts of law. The same division had earlier found that a decree indemnifying "any person" from criminal prosecution with respect to acts carried out in the area and on the day of the "Bisho massacre", contravened the right to a fair hearing, as justice was required to be done to both the accused and those allegedly affected by his or her �unlawful action�. Heath, J. explained that the decree would make the enforcement of a number of other rights impossible where contravened at Bisho on the day of the massacre and thus, in effect, infringed a whole host of rights. Liability for breach of constitutional rights (top) In Imanyara v. Attorney General, the High Court of Kenya held that as a chief was not acting in the course of his lawful duty when he contravened the applicant�s rights, the Attorney General could not be held vicariously liable.This may be contrasted with a decision of the Constitutional Court of Seychelles which held that the State was directly liable for any contravention of a constitutional right by its servants, in this case the police. In Faiz v. Attorney General & Ors,
the situation was different. An MP, Provincial Councillor and State Minister
were not even purporting to use coercive powers prescribed by the law when they
connived with police officers in acts resulting in the petitioner�s unlawful
arrest and detention and physical assault. For the purposes of the petition,
therefore, the Supreme Court of Sri Lanka classed these respondents as private
individuals. The court held that although generally the actions of the said
respondents, being private individuals, could not be said to be "executive
or administrative", the court had the power to make an appropriate order
even against a private individual where such a respondent was proved to be
guilty of impropriety or connivance with the executive in wrongful acts
violative of fundamental rights. The Supreme Court decided that the violations
found to be carried out by police officers, also respondents in this case, were
induced or instigated by the MP, Provincial Councillor and State Minister and
accordingly the latter three respondents had breached the petitioner�s
constitutional rights. In a number of decisions reported in this issue, the courts awarded damages for a breach of constitutional rights. An effective and adequate remedy, however, may find itself at the mercy of "procedural hiccups". For example, the High Court of Kenya, although finding itself able to declare that a number of the applicant�s rights had been contravened, declined jurisdiction to consider an award of damages on the ground that the application had been made by way of originating motion. Some Commonwealth Constitutions contain a proviso that the court shall not exercise such powers of redress if it is satisfied that adequate means of redress for the contravention alleged are or have been available to a person concerned under any other law. The Supreme Court of Jamaica found that the applicant was caught by this proviso and declined to award damages for the breach of his constitutional rights. Damages for the torts of assault and false imprisonment were however awarded in this case together with exemplary damages applying the criteria established by the House of Lords in Rookes v. Barnard that an award may be made where there has been an "oppressive, arbitrary or unconstitutional action by the services of the Government." In most Commonwealth jurisdictions, separate proceedings are required for public and private law remedies. Under these circumstances, Verma, J., sitting in the Indian Supreme Court case of Nilabiti Behera v. State of Orissa, noted that the public law remedy had to be "more readily available when invoked by the have-nots, who are not possessed of the wherewithal for enforcement of their rights in private law". In that case damages for breach of constitutional rights were awarded to a mother whose son had been beaten to death in police custody. The possibility of the duplication of damages, did not present an insurmountable problem since the award would be taken into account in the event of any other proceeding taken by the petitioner claiming compensation on the same ground. Finally on the question
of remedies, the remedy sought in many cases may not include monetary
compensation. In Re Chikweche, for example, the Supreme Court of Zimbabwe
ordered that an advocate denied registration in view of his dreadlocks hairstyle
be allowed to take the requisite oaths after establishing a violation of the
right to freedom of conscience. As this breach was sufficient to grant the
remedy sought, the court found it unnecessary to examine the submissions
alleging a breach of the right to freedom of expression and the prohibition of
discrimination. Such a conclusion, that every constitutional rights provision
invoked by the applicant need not be examined, may be different where an
applicant prays for damages. In this respect the Zimbabwe decision may be
contrasted with that of the Supreme Court of Sri Lanka in Deshapriya &
Anor v. Municipal Council, Nuwara Eliye & Ors, where Fernando, J., after
finding that a seizure of "anti-government" newspapers contravened the
right to freedom of expression, went on to hold that it was also contrary to the
prohibition of discrimination on the ground of political opinion and,
furthermore, that the assessment of damages was aggravated by this additional
breach. |