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You are here: BAILII >> Databases >> The Judicial Committee of the Privy Council Decisions >> Gairy v. Attorney General of Grenada (Grenada) [2001] UKPC 30 (19 June 2001) URL: https://www.bailii.org/uk/cases/UKPC/2001/30.html Cite as: [2002] AC 167, [2002] 1 AC 167, [2001] 3 WLR 779, [2001] UKPC 30 |
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Privy Council Appeal No. 29 of 2000
Jennifer Gairy (as administratrix of the estate of
Eric Matthew Gairy, deceased) Appellant
v.
The Attorney General of Grenada Respondent
FROM
THE COURT OF APPEAL OF GRENADA
JUDGMENT OF THE LORDS OF THE JUDICIAL
COMMITTEE OF THE PRIVY COUNCIL,
Delivered the 19th June 2001
------------------
Present at the hearing:-
Lord Bingham of Cornhill
Lord Nicholls of Birkenhead
Lord Cooke of Thorndon
Lord Millett
Lord Scott of Foscote
[Delivered by Lord Bingham of Cornhill]
------------------
The facts
"In the Matter of the Grenada Constitution Order (hereinafter the Constitution) sections 6 and 16
and
In the Matter of People's Law No. 95 of 1979 intituled Property Confiscation (Eric Matthew Gairy) Law 1979."
The respondent was the Attorney General of Grenada. The appellant sought a declaration that People's Law No 95 of 1979 contravened section 6 of the constitution and was null, void and of no effect, and consequential orders and directions. The grounds of the application repeated that the law contravened the provisions of section 6 of the constitution.
"1. All properties of the Applicant which were confiscated under the provision of People's Law No. 95 of 1979, which by consent of the parties the Court declares to be null and void, be forthwith returned to the Applicant.2. The Applicant be compensated for the unlawful confiscation of the said properties. Such compensation to be determined by an arbitrator to be agreed on by the Applicant and the Respondent, in default of agreement by a referee appointed by the Court."
There was no appeal against that order. The appellant's properties were returned to him (save for some parts lawfully acquired by the state) and give rise to no continuing issue. An arbitrator was duly appointed and made an assessment of the compensation due to the appellant. On 29 April 1994 the parties returned to court. The Attorney General was represented by the Solicitor General and it was ordered by Moore J by consent:
"1. That the report of … the arbitrator appointed pursuant to the order of the Court dated the 31st day of July 1993 be adopted.2. That judgment be entered for the Plaintiff in the sum of $3,649,414.00 being the amount awarded the Plaintiff by the arbitrator.
3. That interest on the said amount be paid at the rate of $6.00 per centum per annum from the 1st day of November 1990 until payment …
5. That the Minister of Finance be directed to issue a warrant under his hand forthwith for the prompt payment of the above amounts from the consolidated fund …"
"That there be prompt payment of the above amounts."
The order was amended accordingly, and so continued to be expressed in mandatory terms.
"The provisions of section[s] 16 and 101 of the Constitution of Grenada confer unlimited jurisdiction on the court to fashion remedies to secure the enforcement of the fundamental rights and freedoms provisions of the Constitution and grant protection against the contravention of the other provisions in accordance with the law … the courts are empowered by the Constitution and the legislature to ensure compliance with judicial orders for the payment of money by the State."
The Constitution of Grenada
"This Constitution is the supreme law of Grenada and, subject to the provisions of this Constitution, if any other law is inconsistent with this Constitution, this Constitution shall prevail and the other law shall, to the extent of the inconsistency, be void."
"Law" is defined in section 111 to include "any instrument having the force of law and any unwritten rule of law". Existing laws are to be construed with such modifications, adaptations, qualifications and exceptions as may be necessary to bring them into conformity with the constitution (paragraph 1 of Schedule 2 to the 1973 Order).
"6.-(1) No property of any description shall be compulsorily taken possession of, and no interest in or right over property of any description shall be compulsorily acquired, except where provision is made by a law applicable to that taking of possession or acquisition for the prompt payment of full compensation.
(2) Every person having an interest in or right over property which is compulsorily taken possession of or whose interest in or right over any property is compulsorily acquired shall have a right of direct access to the High Court for –
a. the determination of his interest or right, the legality of the taking of possession or acquisition of the property, interest or right and the amount of any compensation to which he is entitled andb. the purpose of obtaining prompt payment of that compensation:
Provided that if Parliament so provides in relation to any matter referred to in paragraph (a) of this subsection the right of access shall be by way of appeal (exercisable as of right at the instance of the person having the interest in or right over the property) from a tribunal or authority, other than the High Court, having jurisdiction under any law to determine that matter.
(3) The Chief Justice may make rules with respect to the practise [sic] and procedure of the High Court or any other tribunal or authority in relation to the jurisdiction conferred on the High Court by subsection (2) of this section or exercisable by the other tribunal or authority for the purposes of that subsection (including rules with respect to the time within which applications or appeals to the High Court or applications to the other tribunal or authority may be brought)."
"16.-(1) If any person alleges that any of the provisions of sections 2 to 15 (inclusive) of this Constitution has been, is being or is likely to be contravened in relation to him (or, in the case of a person who is detained, if any other person alleges such a contravention in relation to the detained person), then, without prejudice to any other action with respect to the same matter which is lawfully available, that person (or that other person) may apply to the High Court for redress.
(2) The High Court shall have original jurisdiction –
a. to hear and determine any application made by any person in pursuance of subsection (1) of this section; andb. to determine any question arising in the case of any person which is referred to it in pursuance of subsection (3) of this section and may make such declarations or orders, issue such writs and give such directions as it may consider appropriate for the purpose of enforcing or securing the enforcement of any of the provisions of sections 2 to 15 (inclusive) of this Constitution:
Provided that the High Court may decline to exercise its powers under this subsection if it is satisfied that adequate means of redress for the contravention alleged are or have been available to the person concerned under any other law.
…
(5) Parliament may confer upon the High Court such powers in addition to those conferred by this section as may appear to be necessary or desirable for the purpose of enabling that court more effectively to exercise the jurisdiction conferred upon it by this section.
(6) The Chief Justice may make rules with respect to the practice and procedure of the High Court in relation to the jurisdiction and powers conferred on it by or under this section (including rules with respect to the time within which applications may be brought and references shall be made to the High Court)."
Parliament has taken no steps under subsection (5). Rules were made governing the procedure for obtaining constitutional redress – the Supreme Court (Constitutional Redress – Grenada) Rules 1968, continued in force by paragraph 1 of Schedule 2 to the 1973 Constitution Order – but no procedural (as opposed to jurisdictional) objection has been taken to the appellant's application.
The Crown Proceedings Act (Cap 74)
"21. (1) Where in any civil proceedings by or against the Crown, or in connection with any arbitration to which the Crown is a party, any order (including an order for costs) is made by any court in favour of any person against the Crown or against a Ministry or Government department or against an officer of the Crown as such, the proper officer of the court shall, on an application in that behalf made by or on behalf of that person at any time after the expiration of twenty-one days from the date of the order or, in case the order provides for the payment of costs and the costs require to be taxed, at any time after the costs have been taxed, whichever is the later, issue to that person a certificate in the prescribed form containing particulars of the order:
Provided that, if the court so directs, a separate certificate shall be issued with respect to the costs (if any) ordered to be paid to the applicant.
(2) A copy of any certificate issued under this section may be served by the person in whose favour the order is made upon the Attorney-General.
(3) If the order provides for the payment of any money by way of damages or otherwise, or of any costs, the certificate shall state the amount so payable, and the Permanent Secretary (Finance) shall, subject as hereinafter provided, pay to the person entitled or to his solicitor the amount appearing by the certificate to be due to him together with the interest, if any, lawfully due thereon:
Provided that the court by which any such order as aforesaid is made or any court to which an appeal against the order lies may direct that, pending an appeal or otherwise, payment of the whole of any amount so payable, or any part thereof, shall be suspended, and if the certificate has not been issued may order any such directions to be inserted therein.
(4) Save as aforesaid no execution or attachment or process in the nature thereof shall be issued out of any court for enforcing payment by the Crown of any such money or costs as aforesaid, and no person shall be individually liable under any order for the payment by the Crown, or any Ministry or Government department, or any officer of the Crown as such, of any such money or costs."
Section 31(5), reproducing section 40(5) of the UK Act, provides:
"This Act shall not operate to limit the discretion of the Court to grant relief by way of mandamus in cases in which such relief might have been granted before the commencement of this Act, notwithstanding that by reason of the provisions of this Act some other and further remedy is available."
The Act does not, like section 38(2) of the UK Act, define "civil proceedings" as not including proceedings on the crown side of the King's Bench Division, but the Chief Justice saw no reason why the expression should be understood differently in the Grenada statute and this view has not been challenged.
The appellant's submission
The Attorney General's answer
(1) It is fallacious to suppose that the rights, powers and immunities of the crown are immutable. They have over time been attenuated and abridged, on occasion as a result of violence (as after the Civil War in the seventeenth century), sometimes of legislation (for example, the Bill of Rights 1688, the Statute of Westminster 1931, the Crown Proceedings Act 1947), sometimes of judicial decision (for example, Conway v Rimmer [1968] AC 910, Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374). It is in no way inconsistent for an independent state, while continuing to bear full allegiance to the crown, to circumscribe the historic rights, powers and immunities pertaining to the crown in its governmental capacity.(2) By Chapter 1 and section 106 of their constitution the people of Grenada established a new constitutional order. The constitution has primacy (subject to its provisions) over all other laws which, so far as inconsistent with its provisions, must yield to it. To read down its provisions so that they accord with pre-existing rules or principles is to subvert its purpose. Historic common law doctrines restricting the liability of the crown or its amenability to suit cannot stand in the way of effective protection of fundamental rights guaranteed by the constitution.
(3) The Board is not persuaded, despite the appellant's argument to the contrary, that Jaundoo's case can be distinguished on the basis of differences between the 1966 constitution of Guyana and the 1973 constitution of Grenada. That there are some differences is clear; but sections 2, 3(c), 8 and 19 of the Guyana constitution, corresponding to sections 106, 1c, 6 and 16 of the Grenada constitution, are striking in their similarity. It was however argued for the Attorney General in Jaundoo that the constitution conferred no greater rights on the subject against the executive than had previously been enjoyed (page 976). This reflected the approach of the Board to a number of constitutions which it considered at this period: it was assumed that the rights specified in the constitutions were already secured to the people and that the object of embodying them in the constitution was to restrain future enactments which might derogate from them (see Director of Public Prosecutions v Nasralla [1967] 2 AC 238; Baker v The Queen [1975] AC 774; de Freitas v Benny [1976] AC 239). So, giving the advice of the Board in Jaundoo (at page 984) Lord Diplock stated:
"At the time of the hearing in the High Court and in the Court of Appeal, Guyana was still a constitutional monarchy and part of Her Majesty's Dominions – a circumstance which imported into the public law of Guyana the common law concepts derived from the historic position of the Crown within those Dominions, except in so far as these had been modified by the written Constitution itself or by any other law of Guyana."This somewhat conservative approach to the substance of the law contrasted with Lord Diplock's view of the constitutional right of any person to apply to the High Court for redress, and the High Court's power to grant redress, under a provision equivalent to section 16 of the constitution of Grenada of which he said (at page 982):
"These words in their Lordships' view, are wide enough to cover the use by an applicant of any form of procedure by which the High Court can be approached to invoke the exercise of any of its powers. They are not confined to the procedure appropriate to an ordinary civil action, although they would include that procedure until other provision was made under article 19(6). The clear intention of the Constitution that a person who alleges that his fundamental rights are threatened should have unhindered access to the High Court is not to be defeated by any failure of Parliament or the rule-making authority to make specific provision as to how that access is to be gained."In the respectful view of the Board, that enlightened approach to the procedural implications of protecting fundamental rights must extend to the substance of the law also. In interpreting and applying the constitution of Grenada today, the protection of guaranteed rights is a primary objective, to which the traditional rules of the common law must so far as necessary yield. The Board cannot regard Jaundoo as an accurate statement of the modern constitutional law applicable in Grenada.
(4) It is noteworthy that not many years later, in Maharaj v Attorney-General of Trinidad and Tobago (No. 2) [1979] AC 385, the Board made an order for compensation against the state. A barrister had been committed to prison by a judge in breach of natural justice. This was held to be a contravention of his constitutional rights. His constitutional right to apply to the High Court for redress, conferred in terms very similar to those of section 16 of the Grenada Constitution, showed a "clear intention to create a new remedy whether there was already some other existing remedy or not" (page 398). An order for payment of compensation when a right protected by the constitution had been contravened was clearly a form of redress (page 399). The Board made clear that the contravention in question was by the state, and its liability was not vicarious (pages 397, 399). The barrister obtained his remedy not against a minister, or a public official, or any servant of the state, but against, in effect, the government.
(5) In M v Home Office, above, the House of Lords defined the circumstances in which injunctive relief may be granted against ministers of the crown and the extent to which such orders may be enforced. The law stated was however that of the United Kingdom, a state with no entrenched constitution and at that time no legal provision for the enhanced protection of fundamental human rights. For reasons already given, the situation in Grenada is categorically different. The reasoning in M v Home Office cannot be relied on to deny the appellant relief to which he is entitled under the constitution of Grenada.
"If the Canadian Charter of Rights and Freedoms, which is part of the Constitution of Canada, is the supreme law of the country, it applies to everyone, including the Crown or a Minister acting in his capacity as a representative of the Crown. Accordingly, a fortiori the Crown or one of its representatives cannot take refuge in any kind of declinatory exception or rule of immunity derived from the common law so as to avoid giving effect to the Charter."
The crown was held to be subject to the provisions of the charter in the same way as any other individual (page 191). The decision has been tentatively understood to qualify, where constitutional rights are at stake, the rule hitherto prevailing in Canada that orders of mandamus cannot be made against the crown (see Mullan, Administrative Law, 3rd ed., 1996, at paragraph 545), and it has been suggested that Levesque could well be followed in New Zealand (see Joseph, Constitutional and Administrative Law in New Zealand, 1993, at pages 797-8). In Australia mandamus has issued to compel payment of money from the consolidated fund where there was an unperformed statutory duty in that regard (Health Insurance Commission v Peverill (1994) 179 CLR 226 at 242; Commissioner of State Revenue (Vic) v Royal Insurance Aust. Ltd. (1994) 182 CLR 51 at 81, 88; and see Aronson and Dyer, Judicial Review of Administrative Action, 1996, at pages 775-778). In N Nagendra Rao and Co v State of A.P. AIR 1994 SC 2663 R M Sahai J (in paragraph 24 of his judgment) said:
"No legal or political system today can place the State above law as it is unjust and unfair for a citizen to be deprived of his property illegally by negligent act of officers of the State without any remedy … The modern social thinking of progressive societies and the judicial approach is to do away with archaic State protection and place the State or the Government at par with any other juristic legal entity."
In Ireland it has been clearly held that the state, under its independent constitution, does not enjoy the historic immunity of the crown. In Byrne v Ireland and The Attorney General [1972] IR 241 at 281 Walsh J in the Supreme Court said:
"Where the People by the Constitution create rights against the State or impose duties upon the State, a remedy to enforce these must be deemed to be also available. It is as much the duty of the State to render justice against itself in favour of citizens as it is to administer the same between private individuals … There is nothing in the Constitution envisaging the writing into it of a theory of immunity from suit of the State (a state set up by the People to be governed in accordance with the provisions of the Constitution) stemming from or based upon the immunity of a personal sovereign who was the keystone of a feudal edifice. English common-law practices, doctrines, or immunities cannot qualify or dilute the provisions of the Constitution …"
Having indicated that the plaintiff's claim, if it succeeded, would lead to judgment against the state, he added (at page 289):
"It is unnecessary at this juncture to consider how such a decree would be executed or enforced but it is sufficient to say that an order for mandamus to compel compliance with the judgment would be an appropriate step and not without precedent."
Budd J said (at page 299):
"From what is to be deduced in the main from an analysis of the foregoing provisions of the Constitution, in so far as they affect the immunity of the State from suit, it would seem correct to say that the Constitution is not imbued with feudal conceptions of privilege and exemptions but rather with modern conceptions of the duty of the State and the recognition by it of the human rights and needs of those who are the citizens of the State so that, instead of hedging the State with privileges and immunities, the general trend is to place obligations on the State."
He further ruled (at pages 306-307):
"If the plaintiff is successful, in the ordinary way the damages would be assessed during the course of the trial; there would seem to be no reason to believe that the necessary moneys to meet the decree would not be voted. That would only be what would be normally expected in a State governed according to the rule of law, and there would seem to be no reason to believe that the State would not honour its legal obligations … it is unnecessary to come to a final decision on the ways and means of enforcing such a decree beyond remarking that prima facie the ordinary procedure of execution by way of levy or enforcement by mandamus would both seem to be appropriate."
In The State (King) v Minister for Justice [1984] IR 169 these judgments were cited and applied.
The order