Herbert v Phillips and Sealey
| Jurisdiction | Saint Kitts and Nevis |
| Judge | Lewis, J.A.,Lewis C.J.,Gordan, J.A. |
| Judgment Date | 08 August 1967 |
| Neutral Citation | KN 1967 CA 9 |
| Docket Number | Civil Appeal No. 3 of 1967 |
| Court | Court of Appeal (Saint Kitts and Nevis) |
| Date | 08 August 1967 |
The West Indies Associated States Supreme Court. Court of Appeal
Lewis, C.J.,
Gordon, J.A.
Lewis, J.A.
Civil Appeal No. 3 of 1967
M. Butt Q.C., F. Kelsick, J. Armour and E. Francis with him for appellant.
J.S. Archibald, Senior Crown Counsel for respondents.
Constitutional law - Fundamental rights and freedoms — Whether applicant's rights breached by his detention during state of emergency.
Constitutional law - State of emergency regulations — Validity
This is an appeal from an order of Mr Justice Glasgow dated July 5, 1967 dismissing an application made on behalf of the appellant for the issue of a writ of habeas corpus to secure his release from Her Majesty's prison in Basseterre where he is at present confined.
The facts, which give rise to this appeal are as follows: –
On May 30, 1967 the Governor of St. Christopher, Nevis Anguilla (hereinafter referred to as “the State”) issued a proclamation in which he declared that a state of public emergency existed therein. The preamble to the proclamation recited that it was made under subsection (1) of section 3 of the Leeward Islands Emergency Powers) Order in Council 1959 (hereinafter refereed to as “the Order of 1959”) and section 17 (1) of the St. ChristopherNevis and Anguilla Constitution Order 1967(hereinafter referred to as “the Constitution”). On that same day the Emergency Powers Regulations 1967 (hereinafter referred to as “the Regulations”) which purported to have been made by the Governor under subsection (1) section 3 of the Order of 1959 and subsection (1) of section 17(1) of the Constitution were published as Statutory Rule and Order No. 16 of 1967. It should at once be noted that section 17(1) of the Constitution does not authorise the making of regulations.
Paragraph (1) of regulation 3 of the regulations which empowered the Governor to make an order directing any person to be detained who, he was satisfied, had recently been concerned in the acts mentioned in this paragraph, reads as follows: –
“3. DETENTION OF PERSONS. (1) If the Governor is satisfied that any person has 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.”
Paragraph (2) provides that — “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 who may direct that the operation of the order be suspended subject to such conditions” (therein prescribed) and it continues and says that — “the Governor may revoke any such direction if he is satisfied that the person against whom the order was made has failed to observe any condition so imposed, or that the operation of the order can no longer remain suspended without detriment to the public safety, or to public order. “
On June 10th, 1967, the appellant was arrested and detained by virtue of an order of even date signed by the Governor's Deputy. The reason given in the order for detaining the appellant was that the Governor's Deputy was satisfied that the appellant had recently been concerned in acts prejudicial to the public safety and to public order, and that by reason thereof it was necessary to exercise control over him. In pursuance of that order the appellant was lodged in Her Majesty's prison at Basseterre and detained in the custody of the second — named respondent, the Keeper thereof.
The appellant contends that his detention is unlawful and unconstitutional in that it is a contravention of his right to personal liberty guaranteed to him under section 3 of the Constitution and he accordingly applied to the High Court under section 16 of the Constitution for redress. He was unsuccessful in this application and he has now appealed to this Court as of right under section 100 (b) of the Constitution.
Chapter 1 of the Constitution deals with the recognition protection of human rights and fundamental freedoms. It contains 18 sections, the first of which declares that every person in the State is entitled to the fundamental rights and freedoms therein listed subject to respect for the rights and freedoms of others and for the public interest. It also declares that the provisions of the 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 the Chapter which are 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. Sections 2 to 13 inclusive provide for the protection of the rights and freedoms mentioned in section 1, section 14 permits derogations to be made from these fundamental rights and freedoms during a period of public emergency but only in the manner prescribed by the section. Section 15 provides certain safeguards for persons detained under emergency powers, section 16 gives to a person who alleges that any of the freedoms and rights referred to in sections 2 to 15 are being contravened in his case, a right to apply to a High Court for redress, and section 17 authorises the Governor to declare a state of emergency. Section 18 is the section, which interprets Chapter 1.
Section 3 of the Constitution is the one, which protects the right to personal liberty, and this is the right, which the appellant says has been contravened in his case. Subsection (1) of this section reads: –
“3 (1) No person shall be deprived of his personal liberty save as may be authorised by law in any of the following cases, that is to say”, and the subsection then goes on to list the cases to which it refers in paragraphs “(a)” to “(k)”.
It was conceded by the appellant's counsel that his did not fall within section 3 (1) of the Constitution.
In a democratic State, there may arise occasions when in the public interest, the ordinary rights and freedoms of its citizens may have to be temporarily curtailed and the Constitution recognises this by providing that there may be a derogation from fundamental rights and freedoms during a period of public emergency. This is done by section 14, which reads as follows: –
“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.”
This section, it was said by counsel for the appellant, deals with two things, viz. (a) the content of the law, and (b) the action or measure taken there under; and it was emphasized that the content of such law was not to be deemed to be inconsistent with section 3 of the Constitution nor should the measure which the law authorised be deemed to be in contravention of this section in so far as they were reasonably justifiable for dealing with the situation.
The question which, of necessity, arises is whether regulation 3 of the regulations pursuant to which the appellant was detained was validity made, and it was submitted that it was not because it was not made “under the authority of a law enacted by the legislature” within the meaning of these words in section 14 of the Constitution, and consequently it offended against section 3 of the Constitution.
“Law” is defined in section 113 (1) of the Constitution as including “any instrument having the force of law and any unwritten rule of law” and “the Legislature” as meaning “the Legislature of St. Christopher, Nevis and Anguilla”. In section 103 (5) of the Constitution the following definition of “existing law” appears
“(5). For the purposes of this section, the expression “existing later” means any Act, Ordinance, law, rule, regulation, order or other instrument made in pursuance of (or continuing in operation under) the existing instruments or the Leeward Islands (Miscellaneous Provisions) Orderin Council 1956 or the West Indies (Dissolution and Interim Commissioner) Order in Council 1962 and having effect as part of the law of Saint Christopher, Nevis and Anguilla or of any part thereof immediately before the commencement of this Constitution.”
There is no doubt that the Order of 1959 is an “existing law” within the meaning of the definition of this expression in section 103 (5) of the Constitution. This Order was made under section 3 of the Leeward Islands Act 1956 but this section was repealed by the West Indies Act 1962. However, section 5 (5) of the latter Act provided that any Order in Council under section 3 of the Leeward Islands Act 1956 so far as subsisting by virtue of that Act shall, in so far as it is in force at the passing of the West Indies Act 1962 (which was on 18th April, 1962) and could be made under section 5 of that Act, have effect as if so made. The effect of this provision was to preserve the Order of 1959 and deem it to have been made under section 5 of the West Indies Act 1962. Further, section 108 of the Constitution provides that “the Leeward lslands (Emergency Powers) Order in Council 1959 shall cease to have effect as part of the law of St. Christopher, Nevis and Anguilla on 1st September 1967 or such earlier date as the Legislature may prescribe.” It is common ground that the Legislature has not prescribed any date earlier than 1st September, 1967 on which this Order shall cease to have effect, and it follows...
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