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Rights Arising After the Promulgation of Fundamental Right and Freedoms
Published online by Cambridge University Press: 17 January 2008
The extent to which it is appropriate to interpret constitutional provisions and in particular fundamental rights in accordance with the law and understanding current at the time of their promulgation, is a fundamental issue in any legal regime into which a Bill of Rights is introduced. This is well illustrated in a recent decision by the Judicial Committee of the Privy Council.
1. [1999 ] 3 W.L.R. 249 (PC).
2. The Commission was not, as stated by their Lordships established by the American Convention but in 1960 and is thus an organ both of the Organisation of American States (OAS) and of the Convention. It is also to be noted that Trinidad and Tobago as a member of the OAS, can have “complaints’ brought against it before the Commission, by reference to the Charter of the OAS and the American Declaration of Human Rights (1948).
3. Op. cit., supra n.l, at 261(B).
4. Ibid., at 271(A).
5. Ibid., at 260(D). Apart from subclause (b), s.5 of the Trinidad and Tobago Constitution confers procedural rights, such as that to access to counsel on arrest litigated on Thornhilt; the right “of the remedy by way of habeas corpus for the determination of the validity of a detention; the established fair trial rights (albeit not one to a speedy trial)—such as that to legal representation, and trial by an impartial tribunal.”
6. At [1976] A.C 239; [1979] A.C 385 and [1981] A.C 51 respectively.
7. [1967] A.C 238, 247, cited in Maharaj (No.2) at 395(D). The “presumption’ in the Nasralla statement was said to underlie the Trinidad & Tobago Bill of Rights in De Freitas v. Benny, at 244.
8. (1999) 2 W.L.R. 349, 355 (PC).
9. The Privy Council was very much aware of the Fisher decision in Thomas and Hilaire, in which it noted “an absence” to a reference to “due process” in the right to life clause in The Bahamas. Moreover, the Fisher decision, emphasised the fact that the right to life clause concerned, proscribed deprivation of life unless by sentence of court, such court could only be a domestic court.