1) The Chief of Police 2) Attorney General of Saint Christopher and Nevis v Calvin Nias

• Jurisdiction: Saint Kitts and Nevis
• Judge: RAWLINS, C.J.,EDWARDS, J.A. [AG.],Hugh A. Rawlins,Chief Justice,Ola Mae Edwards,Justice of Appeal [Ag.],Errol Thomas
• Judgment Date: 25 November 2008
• Judgment citation (vLex): [2008] ECSC J1125-1
• Court: Court of Appeal (Saint Kitts and Nevis)
• Docket Number: HCVAP. 2007/010
• Date: 25 November 2008

[2008] ECSC J1125-1

IN THE COURT OF APPEAL

Before:

The Hon. Mr. Hugh A. Rawlins Chief Justice

The Hon. Mde. Ola Mae Edwards Justice of Appeal [Ag.]

The Hon. Mr. Errol Thomas Justice of Appeal [Ag.]

HCVAP. 2007/010

Between:

[1] The Chief of Police

[2] The Attorney General of Saint Christopher and Nevis

Appellants

and

Calvin Nias

Respondent

Appearances:

Mr. Arudranauth Gossai for the Appellants

Mr. Damian Kelsick for the Respondent

Constitutional law — respondent charged in the Magistrates' Court with the offence of using abusive language in a public place under section 8(a) of the Small Charges Act Cap. 75 of the 1961 Revised Laws of St. Christopher (St. Kitts) and Nevis — whether section 8(a) of the Small Charges Act is unconstitutional and of no effect in that it violates the respondent's fundamental right to freedom of expression — sections 3 and 12 of the Constitution — whether the judge erred in dismissing the charge without remitting the case to the Magistrates' Court — section 18(3) and (4) of the Constitution

The respondent, Mr. Nias, was charged under section 8(a) of the Small Charges Act with the offence of using abusive language in a public place. The trial was stayed in the Magistrates' Court pending the hearing of Mr. Nias' application for a declaration that section 8(a) should be struck down for unconstitutionality, because it infringed his right to freedom of expression. The High Court judge granted the declaration holding that section 8(a) contravened sections 3 and 12 of the Constitution and violated Mr. Nias' right to freedom of expression. The judge consequently quashed the charge. The Attorney General appealed on 2 main grounds. These are that the judge erred in holding that section 8(a) of the Small Charges Act was unconstitutional and also because he quashed the charge instead of remitting the case to the Magistrates' Court.

Held: allowing the appeal with no order as to costs; setting aside the judgment and order of the High Court and remitting the case to the Magistrates' Court:-

• 1. Although section 3 of the Constitution is a declaratory and pre-ambulatory provision, and section 12 of the Constitution confers the substantive right to freedom of expression, inasmuch as section 3(b) of the Constitution also declares the right to freedom of expression, the learned judge did not err in stating that section 8(a) of the Small Charges Act contravenes sections 3(b) and 12 of the Constitution.

  Observer Publications Ltd v Matthew Others (2001) 58 WIR 188 ; [2001] UKPC 11 and Matadeen and Another v Pointu and Others, [1998] 3 WLR 18 considered.

• 2. Although section 8(a) of the Small Charges Act restricts a person's right to freedom of expression, the provision is not unconstitutional since it is protected by the provisions of section 12(2) of the Constitution as a law that is reasonably required in the interest of public morality. Additionally, there is no evidence to show that it is not reasonably justifiable in a democratic society.

  Observer Publications Ltd v Matthew and Others (2001) 58 WIR 188 ; [2001] UKPC 11 and Henn and Darby v Director of Public Prosecutions [1981] AC 850, considered; The decision in Joseph Solomon Piper v P.C. Fitzroy Galloway and Others, Commonwealth of Dominica High Court Civil Suit No. 140 of 1993 (20^th July 1994) doubted.

• 3. The judge had no jurisdiction to strike out the charge. Section 18(4) of the Constitution required him to remit the case to the Magistrates' Court, in which the charge was being tried, with his decision on the constitutional issue for the guidance of the Magistrate within whose jurisdiction resides the power to finally dispose of the matter.

• 4. In accordance with rule 56.13(6) of Civil Procedure Rules 2000, the applicant will not be condemned in costs in the High Court or in this appeal since he has not acted unreasonably in making the application or in the conduct of the proceedings.

RAWLINS, C.J.

1 The respondent, Mr. Nias, was charged in the Magistrates' Court with the offence of using abusive language to a woman in a public place, to wit, a public road contrary to section 8(a) of theSmall Charges Act1 ("the Act"). The charge was stayed in the Magistrates' Court while Mr. Nias sought a declaration from the High Court that section 8(a) of the Act was unconstitutional, null and void and of no effect in that it contravenes sections 3(b) and 12 of the Constitution. Section 96( 1) and (2) of the Constitution confers original jurisdiction upon the High Court to consider and determine constitutional challenges and to make the appropriate declaration which such challenges might require.

2 I think that it is necessary for the purpose of this appeal to set out the provisions of section 8 of the Act fully. The section states:

"8. Any person who makes use of any abusive, blasphemous, indecent, insulting, profane or threatening language—

• a. in a public place; or

• b. in any place to the annoyance of the public; or

• c. tending to a breach of the peace;

shall be liable to a fine not exceeding one hundred and fifty dollars or to imprisonment for a term not exceeding one month."

3 Having construed section 8(a) of the Act, the learned judge held that it was inconsistent with sections 3(a) and 12 of the Constitution and was therefore null, void and of no effect. The judge accordingly granted Mr. Nias the declaration that he sought; struck down section 8(a) and quashed the charge. He made no order as to costs.2 The Attorney General has appealed. The statement in the judgment that section 3(a) was contravened was an obvious editorial slip for section 3(b) which the prayer contained and to which the judge had earlier referred.3

4 The issues which arise on this appeal are, first, whether the learned judge erred when he found that section 8(a) of the Act contravenes section 3 and/or section 12 of the Constitution. The second question is whether the judge erred, in any event, when he quashed the charge, rather than remit the matter to the Magistrate. These issues will be considered after briefly touching upon the jurisdiction of the High Court to review legislation.

Review jurisdiction and the process

5 The jurisdiction of the High Court to review legislation for unconstitutionality in St. Christopher and Nevis is implicit in the construction of various provisions of the Constitution. These are section 2, which is the supreme law clause, as well as sections 18, 37 and 38 of the Constitution.

6 Section 2 gives the Constitution general overriding effect over all other laws. It declares that the Constitution is the supreme law of Saint Christopher and Nevis and states that, subject to the provisions of the Constitution, if any other law is inconsistent with the Constitution, the Constitution shall prevail and the other law shall, to the extent of the inconsistency, be void. Section 37 of the Constitution circumscribes the sovereign law-making power of the legislature within the ambit of the provisions of the Constitution. Section 38 stipulates the procedures which the legislature must follow in order to amend the Constitution.

7 Section 18 of the Constitution confers jurisdiction on the High Court to entertain an application from any person for constitutional redress for violation of a fundamental right provision. Section 18 requires a person who challenges the constitutionality of legislation to have the necessarylocus standi or nexus to the cause of action. It is common ground that Mr. Nias has the necessary locus standi to bring the application. This is because he alleges that his right to freedom of expression was infringed when he was charged under section 8(a) of the Act, which he insists is unconstitutional.

8 It is of no moment that section 8(a) of the Act was in force since 1892, thus prior to the promulgation of the Constitution. This is because the Constitution of Saint Christopher and Nevis did not save laws that were in existence at the time when the Constitution came into force in 1983. Accordingly, even pre-existing laws, such as the provisions contained in the Act, fall to be reviewed for constitutionality.

9 The process by which the High Court is enjoined to exercise its power to review legislation was succinctly summarized by this court inAttorney General v Lawrence in the following words:4

"In determining the question of constitutionality of a statute, what the court is concerned with is the competence of the legislature to make it, and not its wisdom or motives. The court has to examine its provisions in the light of the relevant provisions of the Constitution. The presumption is always in favour of constitutionality of an enactment, and the burden is upon him who attacks it to show that there has been a clear transgression of the constitutional principles."

10 In reviewing legislation for unconstitutionality, the court always applies the presumption of constitutionality. This is the presumption that in making legislation the legislature has not exceeded its constitutional powers to legislate. Legislation is presumed to be constitutional unless there is clear proof to the contrary. The burden is upon the applicant to rebut the presumption.

11 The practical effect of this principle is that where legislation is found to infringe a constitutional provision, the court would refrain from striking it down if the court can bring the provision into conformity with the Constitution by making reasonable adaptations, additions or modifications to the provision.5 The court would, to paraphrase the words of Lord Hobhouse in Greene Browne v The Queen [2000] AC 45,6 first

identify the element of unconstitutionality in the impugned provision (section 8(a) of the Act in the present case). Having done this, the court would determine whether the provision can be amended, adapted or modified to bring it into conformity with the Constitution, without...