Thomas and Hilaire v. Baptiste and the Attorney-General of Trinidad and Tobago

2000 ◽  
Vol 49 (2) ◽  
pp. 463-466
Author(s):  
Margaret Demerieux
Keyword(s):  
Trinidad And Tobago ◽  
Attorney General ◽  
Fundamental Rights ◽  
Bill Of Rights ◽  
Fundamental Issue ◽  
Privy Council ◽  
Legal Regime ◽  
The Law

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.

Judges and Human Rights: The Kenyan Experience

1991 ◽  
Vol 35 (1-2) ◽  
pp. 142-173 ◽  
Author(s):  
Gibson Kamau Kuria ◽  
Algeisa M. Vazquez
Keyword(s):  
Attorney General ◽  
Fundamental Rights ◽  
The Other ◽  
Constitutional Rights ◽  
Bill Of Rights ◽  
High Court ◽  
Rules Of Procedure ◽  
Fundamental Rights And Freedoms ◽  
The Individual

On 4 July, 1989 in Maina Mbacha v. Attorney General the High Court of Kenya appeared to remove itself from its role of enforcing the Bill of Rights of Kenya. The court ruled “inoperative” section 84 of the Constitution of Kenya which grants original jurisdiction to the High Court to enforce Fundamental Rights and Freedoms of the Individual, section 70–83 (inclusive) (Chapter V). The provision was deemed “inoperative” in Kamau Kuria v. Attorney General, and this was upheld shortly thereafter in Maina Mbacha when the High Court found that no rules of procedure had been enacted to enforce the Bill of Rights and dismissed for lack of jurisdiction. Indeed, in the latter case the court dismissed the application for lack of jurisdiction even though the case was before the court by virtue of the constitutional grant of “original unlimited jurisdiction”. As a matter of established law, the court can be approached by any available procedure when ruling to enforce established constitutional rights. Ordinary rights can be defeated for failure to follow procedure, but historically, procedural requirements often defer to constitutionally granted rights. Once the Bill of Rights was enacted in the Constitution, its enforcement became supreme to all other law, including procedural rules, for the supremacy clause of the Kenya Constitution states: “… if any other law became inconsistent with this Constitution, this Constitution shall prevail and the other law shall to the extent of the inconsistency be void”

IMPLIED TERMS: THE JOURNEY OF THE MAN ON THE CLAPHAM OMNIBUS

2011 ◽  
Vol 70 (3) ◽  
pp. 607-622 ◽  
Author(s):  
John McCaughran
Keyword(s):  
Attorney General ◽  
Privy Council ◽  
The Law ◽  
Court Of Appeal

This article is about the implication of terms into contracts based upon the presumed intention of the parties. It is particularly concerned with the decision of the Judicial Committee of the Privy Council in Attorney General of Belize v. Belize Telecom Limited,1 a number of recent Court of Appeal decisions thereafter, and whether there has been any change in the law. Before getting to Belize, it is necessary to consider, as briefly as possible, what went before.

THE PRIVY COUNCIL AND THE DOCTRINE OF LEGITIMATE EXPECTATIONS MEET AGAIN

2016 ◽  
Vol 75 (3) ◽  
pp. 449-452
Author(s):  
Joanna Bell
Keyword(s):  
Trinidad And Tobago ◽  
Attorney General ◽  
Insurance Company ◽  
Privy Council ◽  
Life Insurance Company ◽  
Group V ◽  
Financial Difficulties ◽  
Legitimate Expectations ◽  
The Government ◽  
A Company

UNITED Policyholder Group v Attorney General for Trinidad and Tobago [2016] UKPC 17 provided the Privy Council with its second opportunity in recent years to consider the doctrine of legitimate expectations (the first being Paponette v Attorney General of Trinidad and Tobago [2010] UKPC 32; [2012] 1 A.C. 1). The appellants were a group of individuals who held policies in a company known as the Colonial Life Insurance Company (CLICO). On learning in 2009 that CLICO was in serious financial difficulty, the then Government of Trinidad and Tobago had publicly issued a number of assurances to the effect that it would undertake a vast restructuring programme in order to ensure that CLICO's contractual liabilities to such policyholders were fulfilled. Following its election in 2010, the new Government changed direction; it found that CLICO's financial difficulties were much graver than had been originally anticipated and, accordingly, determined that the Government would take a different course with the consequence that CLICO's liabilities would be fulfilled to a less generous degree than originally represented.

8. Filling the gaps

Contract Law ◽  
2019 ◽  
pp. 207-239
Author(s):  
TT Arvind
Keyword(s):  
Common Law ◽  
Attorney General ◽  
Good Faith ◽  
Privy Council ◽  
The Law

This chapter focuses on contracts which leave some issues unaddressed and the law of implied terms used by the courts to deal with such situations. It first explains the nature of implied terms and the process of implication that requires the court to strike a difficult balance, along with the tests for implication. It then considers terms implied in law, paying attention to implication by statute and at common law, before discussing terms implied in fact. More specifically, it explores the test of business efficacy, obviousness, and the officious bystander, and the approach used based on Lord Hoffmann’s judgment in the Privy Council in Attorney General of Belize v Belize Telecom. The chapter also analyses implication by custom, along with good faith and cooperation as requirements for parties to a contract.

scholarly journals A Consistent Inconsistency—An Interpretationof Sections 23 and 56(1) of the Charter of Human Rights and Freedoms of Québec

2016 ◽  
Vol 28 (3) ◽  
pp. 379-403
Author(s):  
Barbara Pierre
Keyword(s):  
Human Rights ◽  
Separation Of Powers ◽  
Attorney General ◽  
Supreme Court Decision ◽  
The State ◽  
Fundamental Rights ◽  
The Law ◽  
The Difference ◽  
The Government ◽  
The Right

The writer advocates the view that courts interpret statutes so as to achieve their aim; that being justice in the case: as between the parties and in respect of the law. This is identified as the common thread that explains the apparent erratic behaviour of the courts in their use of the various methods or rules of interpretation. The Supreme Court decision, Attorney General of Québec v. 2747-3174 Québec Inc., is analysed against the background of this theory and is seen to give support to it. The court is shown to use various rules of interpretation, which lead the majority to a wide, and the minority to a narrow, interpretation of the Charter of Human Rights and Freedoms of Québec. Yet it is clear that in both cases the rules are merely a means to an end: justice as between the parties and in respect of the law. In context of the case, this means establishing a balance between the competing interests of the State and the citizen that conforms to the law relating to fundamental rights and in particular, the Charter of Human Rights and Freedoms of Québec. As far as the State is concerned, it has a vested interest in confirming the constitutionality of its many administrative tribunals, which play an essential role in enabling the State to discharge its responsibility to govern. Citizens, on the other hand, need to be protected from the violation of their rights, in particular the right to an independent and impartial tribunal in matters relating to the determination of their rights and obligations, or charges brought against them. The Charter must be interpreted so that, in its scope and content, it gives real protection, but, consistent with the separation of powers doctrine, the interpretation must not amount to a usurpation by the courts of the role of the government to govern. The writer concludes that the opposing conclusions of the majority and minority are more a consequence of the difference in the opinion of the judges as to the manner in which the balance should be struck, as opposed to the rules of interpretation used by them.

8. Filling the gaps

Contract Law ◽  
2017 ◽  
Author(s):  
TT Arvind
Keyword(s):  
Common Law ◽  
Attorney General ◽  
Good Faith ◽  
Privy Council ◽  
The Law

This chapter focuses on contracts which leave some issues unaddressed and the law of implied terms used by the courts to deal with such situations. It first explains the nature of implied terms and the process of implication that requires the court to strike a difficult balance, along with the tests for implication. It then considers terms implied in law, paying attention to implication by statute and at common law, before discussing terms implied in fact. More specifically, it explores the test of business efficacy, obviousness and the officious bystander, and the approach used based on Lord Hoffmann's judgment in the Privy Council in Attorney General of Belize v Belize Telecom. The chapter also analyzes implication by custom, along with good faith and cooperation as requirements for parties to a contract.

Provocation—does Paria Add Anything Useful?

1995 ◽  
Vol 68 (3) ◽  
pp. 244-252
Author(s):  
Graeme Broadbent
Keyword(s):  
Trinidad And Tobago ◽  
The State ◽  
Fundamental Question ◽  
Self Control ◽  
Recent Case ◽  
Privy Council ◽  
England And Wales ◽  
House Of Lords ◽  
The Law ◽  
Do So

There has been much controversy in recent years relating to aspects of the partial defence of provocation. A particular issue has centred on whether, and in what circumstances, the defendant's characteristics can be taken into account with regard to his ability to exercise self-control. In the recent case of Paria v The State, an appeal originating from Trinidad and Tobago, the Privy Council was invited to apply the decision of the House of Lords in R v Smith (Morgan). In the event, the Privy Council declined to do so, but nonetheless made some observations on that case. This article considers the more fundamental question of whether the Privy Council should have been considering Smith at all, and argues that, for precedent-based reasons, it should not. It draws on criticisms made by other commentators to the effect that observations made by the Privy Council in Paria about Smith are not soundly based, and concludes that the case adds little of value to the law in either England and Wales or Trinidad and Tobago.

Provocation—Does Paria Add Anything Useful?

2004 ◽  
Vol 68 (3) ◽  
pp. 244-252
Author(s):  
Graeme Broadbent
Keyword(s):  
Trinidad And Tobago ◽  
The State ◽  
Fundamental Question ◽  
Self Control ◽  
Recent Case ◽  
Privy Council ◽  
England And Wales ◽  
House Of Lords ◽  
The Law ◽  
Do So

There has been much controversy in recent years relating to aspects of the partial defence of provocation. A particular issue has centred on whether, and in what circumstances, the defendant's characteristics can be taken into account with regard to his ability to exercise self-control. In the recent case of Paria v The State, an appeal originating from Trinidad and Tobago, the Privy Council was invited to apply the decision of the House of Lords in R v Smith (Morgan). In the event, the Privy Council declined to do so, but nonetheless made some observations on that case. This article considers the more fundamental question of whether the Privy Council should have been considering Smith at all, and argues that, for precedent-based reasons, it should not. It draws on criticisms made by other commentators to the effect that observations made by the Privy Council in Paria about Smith are not soundly based, and concludes that the case adds little of value to the law in either England and Wales or Trinidad and Tobago.

scholarly journals Legal Aspects of the State of Emergency versus the Fundamental Rights and Freedoms of the Citizen

2020 ◽  
Vol 8 (2) ◽  
pp. 35-43
Author(s):  
Gabriela Nemtoi ◽  
Eugenia Gabriela Leuciuc
Keyword(s):  
Legal Aspects ◽  
The State ◽  
Fundamental Rights ◽  
Legal Regime ◽  
State Of Emergency ◽  
Legal Provisions ◽  
The Law ◽  
Fundamental Rights And Freedoms ◽  
Constitutional Meaning ◽  
Emergency Measures

In Romania, the state of siege and state of emergency is regulated by GEO no. 1/1999 approved by Law no. 453/2004 of the Romanian Parliament. The emergency ordinance expressly provides that the decree of the President of Romania on the establishment of a state of emergency or state of siege must provide for first-line, emergency measures to be taken in such situations, namely the fundamental rights and freedoms whose exercise is restricted, within the limits of the constitutional provisions and of the emergency ordinance. In relation to the above constitutional and legal provisions, arises the question what does it mean that the President establishes, according to the law, the state of siege or emergency? What is the constitutional meaning of the phrase "establish, according to the law"? Does it refer to the fact that the President has only the power to declare a state of emergency or a state of siege, under the subsequent control of a Parliament which enjoys only the power to approve the measure? Or does it refer to the fact that the President has the competence to implement / execute the provisions of the law that establishes the legal regime of the state of siege or of the state of emergency in Romania? In this context, it is necessary to look at the limits of the fundamental rights and freedoms of the citizen in the event of a state of emergency.

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