Charles v Phillips et Al

• Jurisdiction: Saint Kitts and Nevis
• Judge: GORDON, J.A.,LEWIS, J.A.
• Judgment Date: 10 August 1967
• Neutral Citation: KN 1967 CA 8
• Docket Number: No. 2 of 1967
• Court: Court of Appeal (Saint Kitts and Nevis)
• Date: 10 August 1967

The West Indies Associated States Supreme Court. Court of Appeal

Lewis, C.J.,

Gordon, J.A.

Lewis, J.A.

No. 2 of 1967

Charles

and

Phillips et al

Appearances:

C.F. Henville Q.C. (Wind. Is.), Crawford with him for appellant.

J.S. Archibald (Senior Crown Counsel) for the respondent.

Constitutional law - Emergency Powers Regulations, 1967 — Validity of statute.

Facts: LThe appellants were detained under the Emergency Power Regulations, 1867. The contended that the detention order made by the Governor's Deputy under the Emergency Powers Regulations, 1967 against the appellants contravened section 3 of the Constitution.

Held: That the Regulations contravened section 3 of the constitution and were not shown to be authorised within the provisions of section 14 of the Constitution. (2) that the detention order was invalid and unlawful.

JUDGMENT OF THE COURT:

1 On the 30th May, 1967 the Governor of St. Christopher Nevis and Anguilla made a Proclamation under section 3 (2) of the Leeward Islands (Emergency Powers) Order in Council, 1959 ( S.I. 1959/2206) (in this judgment referred to as the Order of 1959), and section 17 of the Constitution, declaring that a state of public emergency exists in the State. The Proclamation also purported to bring into effect as 30th May, 1967 the provisions of the said Order and of sections 14 and 17 of the Constitution. Whatever may have been intended by the latter portion of the Proclamation, it is not in dispute, that the proclamation was effective under section 17 (1) of the Constitution, to declare a State of Emergency.

2 On the said 30th May, 1967 the Governor made the Emergency Powers Regulations 1967. The preamble to these Regulations states that they are made under section 3 (1) of the Order of 1959 and section 17 (1) of the Constitution. Regulation 3 of these Regulations, so far as it is relevant, is as follows:–

• 3. Detention of Persons (1) If the Governor is satisfied that any person recently been concerned in acts prejudicial to the public safety, or to public order or in the preparation or instigation of such acts, or in impeding the maintenance of supplies and services essential to the life of the community and that by reason thereof it is necessary to exercise control over him, he may make an order against that person directing that he be detained.

• (2) Any person detained in pursuance of this regulation shall be deemed to be in lawful custody and shall be detained in such place as may be authorised by the Governor……”

3 On the 13th June 1967, the Governor's Deputy, acting under the above mentioned regulation, ordered the detention of the appellant and in pursuance of this Order the appellant was taken into custody on June 14th and has since been detained at H.M. Prison in Basseterre. The Detention Order recited that the Governor was “satisfied with respect to Henry S. Charles that he has recently been concerned in acts prejudicial to the public safety and to public order, and that by reason thereof it is necessary to exercise control over him”.

4 On 17th June the appellant applied by affidavit for the issue of a Writ of Habeas Corpus. Glasgow, J. gave leave to proceed by Notice of Motion, and on July 3rd, after hearing argument and considering a further affidavit dated 28th June, filed by the appellant, he refused the application. This appeal is taken against that refusal.

5 The appeal, like the application, raises the question the validity of the detention order, having regard to the provisions of Chapter 1 of the Constitution and in particular, sections 3 and 14 thereof. Chapter 1, consisting of 18 sections, relates to the protection of fundamental rights and freedoms, and enshrines those guarantees which are a familiar feature of modern institutions. By section 1 it is declared that:

“.….. the provisions of this Chapter shall have effect for the purpose of affording protection to those rights and freedoms subject to such limitations of that protection as are contained in those provisions, being limitations designed to ensure that the enjoyment of the said rights and freedoms by any person does not prejudice the rights and freedoms of others or the public interest.”

6 Section 3 (1) enacts that:

“No person shall be deprived of his personal liberty save as 5may be authorised by law in any of the following cases……….”

7 It is common ground that the detention complained of in these proceedings does not fall within the cases listed in this subsection, nor, indeed, within any of the exceptions contained in the protective provisions of sections 2 to 13.

8 Section 14, which as I have mentioned was referred to in the Proclamation, and upon which two of the grounds of appeal in this case are hinged, is entitled: “Derogations from fundamental rights and freedoms under emergency powers”. It relates directly, however, only to sections 3 and 13, and reads thus:

“14. Nothing contained in or done under the authority of a law enacted by the Legislature shall be held to be inconsistent with or in contravention of section 3 or section 13 of this Constitution to the extent that the law authorises, the taking during any period of public emergency of measures that are reasonably justifiable for dealing with the situation that exists in Saint Christopher, Nevis and Anguilla during that period.”

9 Section 15 enacts provisions which are to apply “When a person is detained by virtue of any such law as is referred to in section 14”.

10 The provisions of subsections(1) to (4) of section 17 should also be mentioned. Subsection (1) authorises the Governor to declare by Proclamation that a State of Emergency exists for the purposes of Chapter 1. Subsection (3) authorises him to revoke his declaration at any time. In each case the Proclamation must be published in the Official Gazette, Subsection (2) enacts that a declaration of emergency shall lapse unless within a specified period it has been approved by a resolution of the House of Assembly. Subsection (4) in effect provides that a declaration of emergency that has been approved by a resolution shall, unless earlier revoked by the Governor, remain in force so long as that resolution remains in force, and no longer. By section 18 (2) “a period of public emergency” is defined as:

“any period during which –

• (a) Her Majesty is at war; or

• (b) a declaration of emergency is in force under section 17 of this Constitution.”

11 As I have mentioned earlier, the Regulations purport to have been made under subsection (1) of section 3 of the Order of 1959 and section 17 (1) of the Constitution. There is however, no provision in section 17 of the Constitution, which authorises or empowers the Governor to make regulations. They must rely for their validity, therefore, upon the provisions of section 3 (1) of the Order of 1959. I shall set out in full section 3 of that Order.

• “3. (1) The Administrator of a Colony to which this Order applies may, during a period of emergency in that Colony, make such laws for the Colony as appear to him to be necessary or expedient for securing the public safety, the defence of the Colony or the maintenance of public order or for maintaining supplies and services essential to the life of the community.

• (2) In the last foregoing subsection the expression “period of emergency” means a period beginning with a declaration made by the Administrator of the Colony by Proclamation published in that Colony that a public emergency exists therein and ending with a declaration so made that a. public emergency no longer exists therein.

• (3) The Administrator of a Colony to which this Order applies shall not be obliged to obtain the advice of the Executive Council of the Colony with respect to the exercise of the powers conferred upon him by this section but (except in the case of the Administrator of the Colony of the Virgin Islands) he shall exercise those powers after consultation with the Chief Minister of the Colony unless, in the Administrator's judgment, circumstances make it impracticable to consult with the Chief Minister.”

12 The crucial question in this case is whether, having regard to sections 3 and 14 of the Constitution, the Governor was empowered to make Regulation 3 of the Emergency Powers Regulations 1967 and to order the detention of the appellant there under. This calls for a close comparison of the Order of 1959 with the relevant provisions of the Constitution.

13 By section 1 (2) of the Order of 1959 it came into operation on 1st January 1960. By section 2 (2) it was applied to St. Christopher Nevis and Anguilla. The West Indies Act, 1962 (10 & 11 Eliz. 2 c. 19) repealed section 3 of the Leeward Islands Act 1956 (4 & 5 Eliz. 2 c. 23) under which the Order of 1959 was made, but in effect provided, by section 5 (5), that that Order should have effect as if made under the West Indies Act. The West Indies Dissolution and Interim Commissioner) Order in Council 1962 ( S.I.1962/1084) was subsequently made under the West Indies Act, provided, by Art. 15, for the continuation and adaptation of all laws, other than federal laws, that were in forced in each Territory immediately before the dissolution of the Federation. Federal laws were continued in force by Art, 16, This Order in Council also amended the Order of 1959 by adding to section 3 thereof three new subsections, of which subsection (4) is as follows: –

(4) A law made under this section shall have effect notwithstanding the provisions of any other enactment applying to the Colony or any rule of lave having effect therein.”

14 Section 108 of the Constitution provides that the Order of 1959 shall cease to have effect as part of the law of this State on 1st September 1967 or such earlier date as the Legislature may prescribe.

15 Section 103 of the Constitution makes provision with respect to the construction,...