“Legal status of Corporations etc. The Corporations of Hamilton and St. George’s and their successors in office shall be bodies corporate under the names of ‘The Corporation of Hamilton’ and ‘The Corporation of St. George’s’ respectively, and shall have perpetual succession, with power to sue and liability to be sued under the aforesaid names and to have and use common seals respectively, with power to renew, vary or change the same as either such Corporation may from time to time determine.”
“…a vote for businesses who largely fund the City by their payment of rates, and to whom the state of the City is of the utmost importance, surely cannot be seen to be unfair in some way. One man one vote simply isn’t fair when businesses are taxed but have no vote. Persons who are resident in the City are entitled to vote in both municipal and in national elections - at the moment businesses can only vote in municipal elections.”
“The Government now wishes to disenfranchise all electors, whether residential or business, by the enactment of the Municipalities Reform Bill 2019. The intent of this can only be to ensure that members of the Corporation will now be responsible only to, and therefore under the complete control of, the Government, and not directly to the people and ratepayers of the City.”
“16. … The fact that constitutions were individually negotiated and vary reinforces the view of the Board that its task is to interpret the Constitution of Bermuda according to its own special combination of provisions and in the light of the conditions in Bermuda and its history. Some provisions from the Convention found their way into the Bermudian Constitution, but others did not. 17In view of the ‘antecedents’ discussed in Fisher, which, as explained, include the Convention, and in the light of the application of the Convention at the international level (which may have implications for Bermuda in its domestic affairs) the starting point (subject, as explained above, to any countervailing arguments) is that the rights conferred by the Constitution which merely echo Convention rights should be read and applied in accordance with the jurisprudence relating to the Convention. …”
“The Constitutions of certain of the United Kingdom Overseas Territories such as Bermuda and many of the former British possessions, now independent states, have a family resemblance. Typically, they contain a chapter on the protection of the fundamental rights and freedoms of the individual which is introduced by a provision such as section 1 of the Bermuda Constitution, stating those rights and freedoms and their limitations in general terms, followed by a series of sections dealing with particular rights and more detailed exceptions and qualifications. Finally, there is an enforcement provision which gives any person who alleges a contravention of some or all of the provisions of the chapter the right to claim constitutional relief from the court.”
“It is hereby recognised and declared that in Mauritius there have existed and shall continue to exist without discrimination by reason of race, place of origin, political opinions, colour, creed or sex, but subject to respect for the rights and freedoms of others and for the public interest, each and all of the following human rights and fundamental freedoms- …”
“It is to be noted that the section begins with the word ‘Whereas’. Though the section must be given such declaratory force as it independently possesses, it would appear in the main to be of the nature of a preamble. It is an introduction to and in a sense a prefatory or explanatory note in regard to the sections which are to follow. It is a declaration of entitlement—coupled however with a declaration that though ‘every person in Malta’ is entitled to the ‘fundamental rights and freedoms of the individual’ as specified, yet such entitlement is ‘subject to respect for the rights and freedoms of others and for the public interest’. The section appears to proceed by way of explanation of the scheme of the succeeding sections …”
“28. (1) If any person alleges that any of the provisions of Articles 16 to 27 (inclusive) of this Constitution has been, is being or is likely to be contravened in relation to him then, without prejudice to any other action with respect to the same matter which is lawfully available, that person may apply to the Supreme Court for redress.”
“the following provisions shall have effect as the Constitution of Barbados”
“31 … There is no need for linguistic finessing to conclude that the word ‘those’ which precedes ‘rights’, and the phrase ‘said rights’ which are subjected to limitation, must refer to the rights declared in s 11(a) to (d). This means that the provisions in ss 12–23 afford protection for those rights subject to the limitations they authorize. Without the foundation of those s 11 rights, ss 12–23 do not fulfil the aspirations and intentions of the constitutional provisions for the fundamental rights and freedoms.”
“81 What clearly emerges from this underlying structure is that section 11 [the opening section] of the Constitution was not intended to be enforceable independent of the remainder of the Chapter. Section 11 is a preambulatory declaration of the rights and freedoms to which every person in Barbados is entitled. The section explicitly states that the very detailed provisions which follow ‘shall have the effect’ of affording protection to those rights and freedoms subject to limitations contained in those provisions. The rights and limitations are finely balanced to ensure that rights exercised by one person do not unduly interfere with the rights of another. Section 24 [the enforcement section] was framed on the understanding that only breaches of sections 12–23 would attract a remedy. For this reason, section 11 is omitted from the remedy provisions in section 24. Section 26 saves existing law from being held to be inconsistent with or in contravention of any provision of sections 12–23. The clear implication is that the framers of the Constitution did not intend for section 11 to be independently justiciable and therefore there was no need to save existing law against it.”
“22 The Caribbean Court of Justice, in Nervaisv R, Severin v R [2018] CCJ 19 (AJ),[2018] 4 LRC 545 ,(2018) 92 WIR 178 , when construing s 11 of the Constitution of Barbados, which also begins with the word ‘whereas’, held that this did not mean that the section was merely ‘aspirational [or] a preliminary statement of reasons which make the passage of the Constitution, or sections of it, desirable’ (para [25]). It was intended to have the force of law. The court went on to say, of the right to the protection of the law, that it ‘affords every person … adequate safeguards against irrationality, unreasonableness, fundamental unfairness or arbitrary exercise of power’ (para [45]). This is an echo of the words of the Caribbean Court of Justice in Maya Leaders Alliance v A-G [2015] CCJ 15 (AJ),[2016] 2 LRC 414 ,(2015) 87 WIR 178 , para [47], in turn citing A-G v Joseph [2006] CCJ 3 (AJ),[2007] 4 LRC 199 at 223,(2006) 69 WIR 104 at 226, para [20].”
“the Court is bound to follow the decisions of the Court of Appeal in Grape Bay, Inchcup and Ferguson in relation to the issue whether section 1 of the Constitution is directly enforceable and is bound to accept the position that section 1 does not provide the Corporation with a free standing right.”
“ … I regard them both as authority for the proposition that, in the absence of a redress section which in terms applies to section 1 or its equivalent, the language which is to be found in section 1 and, in particular the use of ‘Whereas’ and the provision that it is the ‘subsequent provisions’ of the Chapter that ‘shall have effect for protecting the rights’ which are declared in section 1 ‘subject to such limitations of that protection as are contained in those provisions’, means, as it seems to me that it does, that section 1 is not an independent source of rights. The clear scheme of the Constitution is that the rights expressed in a general manner in section 1 shall obtain their efficacy from the subsequent provisions; and it is those provisions which are to contain the necessary limitations to which the declaration makes reference. To hold that section 1 has independent effect in relation to the rights it declares when it provides that it is the subsequent provisions that shall have that effect appears to me to be a contradiction in terms.”
“61 Further, the court has recognised that there is less scope for reconsidering a decision on a question of statutory interpretation than there may be in relation to a decision involving a judicial exposition of the common law. Respect must be given to the words and purpose of the statutory provision and, where a court of final appeal has given an authoritative interpretation of such a provision, it will normally be for Parliament to change the law if that interpretation is thought to be incorrect. In R v National Insurance Comr, Ex p Hudson[1972] AC 944 , 966, Lord Reid stated that it should only be in rare cases that the court should reconsider questions of statutory construction. …”
“The expression ‘protection of the law’ must be directed at a more widely applied concept than the provisions of s 20 address”
“… agree with the Court of Appeal in Lewis that ‘the protection of the law’ covers the same ground as an entitlement to ‘due process’. Such protection is recognised inJamaica by section 13 of the Constitution and is to be found in the common law.”
“Indeed, the right to the protection of the law is so broad and pervasive that it would be well nigh impossible to encapsulate in a section of a Constitution all the ways in which it may be invoked or can be infringed. Section 18 deals only with the impact of the right on legal proceedings, both criminal and civil, and the provisions which it contains are geared exclusively to ensuring that both the process by which the guilt or innocence of a man charged with a criminal offence is determined as well as that by which the existence or extent of a civil right or obligation is established, are conducted fairly. But the right to the protection of the law is, as we shall seek to demonstrate, much wider in the scope of its application. The protection which this right was afforded by the Barbados Constitution would be a very poor thing indeed if it were limited to cases in which there had been a contravention of the provisions of s 18.”
“32 … are emphatically not authority for any proposition that art 15 of the Bahamian Constitution operates as and provides a general source of protection of human rights, overlapping with the substance of all the rights provided by the subsequent specific articles. They address a completely different subject matter to the present and at best support the view that the concept of ‘protection of the law’ can extend to matters outside the scope of art 18 of the 1973 Constitution [the equivalent of section 6 of the Bermuda Constitution].”
“The purpose must actually be municipal”
“Express wording would be needed if the question whether an activity was for a municipal purpose was simply to depend on the opinion of the councillors who approve it.”
“66. None of this means that the Corporation has power to engage in free-standing business activity for the purpose of earning profits with which to meet its expenditure, which was the perceived vice of the swap transactions held to be ultra vires in Hazell v Hammersmith and Fulham London Borough Council[1992] 2 AC 1 . But the issue of a guarantee to assist a development thought to be in the broader economic interest of the city does not appear to have been a free-standing business activity, let alone an independent source of earnings.”
“Under section 7AA the Minister has a power to give directions. The section does not confer on the Minister the ability to confer on the Corporation powers that it does not by statute possess, or to direct it to do an act or thing that the Corporation is not already empowered to do. He can only direct it to do something in accordance with those powers. Thus the Minister could not, in reliance on section 7AA(1A) direct the Corporation to sell land without the approval of the Cabinet and the Legislature (as required by section 20(1A); or to borrow in terms that would circumvent the restrictions set out in section 37, namely a limit of$30 million in the absence of authority from the Legislature.”
“that notwithstanding the apparent wide ambit of the Minister’s discretion, the discretion is not unfettered and is itself subject to review by the court if it is exercised unreasonably, or contrary to the spirit or letter of the Act, or for offending any other legal principle.”
“… is not to allow the parties to raise for the first time in an appeal to the Board a point of law which has not been argued in the court from which the appeal is brought. Exceptionally it allows this practice to be departed from if the new point of law sought to be raised is one which in the Board’s view is incapable of depending on an appreciation of matters of evidence or of facts of which judicial notice might be taken and is also one upon which in the Board’s view they would not derive assistance from learning the opinions of judges of the local courts upon it.”
“It is well settled that bodies corporate (artificial persons) can invoke some constitutional rights including fair hearing rights.”
“As to land, the Corporation has power to buy land and to use it in various ways for profit (section 20(1) of the 1923 Act). Provisions for the approval of the Legislature and the Cabinet of sales and similar transactions were inserted by the 2013 Act. The Corporation also has power to construct any building on any land it owns ‘where such works are calculated to facilitate or is conducive or incidental to the discharge of any function of the Corporation.’ (section 20(2))”
“The Board considers that the powers in section 20 are clearly to enable the Corporation to carry out its functions and that they are not conferred for the purposes of some separate and independent business of investing or trading in land.”
“Public bodies and private persons are both subject to the rule of law; nothing could be more elementary. But the principles which govern their relationships with the law are wholly different. For private persons, the rule is that you may do anything that the law does not prohibit. It means that the freedoms of the private citizen are not conditional upon some distinct and affirmative justification for which he must burrow in the law books. Such a notion would be anathema to our English legal traditions. But for public bodies the rule is opposite, and so of another character altogether. It is that any action to be taken must be justified by positive law. A public body has no heritage of legal rights which it enjoys for its own sake; at every turn, all of its dealings constitute the fulfilment of duties which it owes to others; indeed, it exists for no other purpose. I would say that a public body enjoys no rights properly so called; it may in various contexts be entitled to insist that this or that procedure be followed, whether by a person affected by its decision or by a superior body having power over it; it may come to court as a judicial review applicant to complain of the decision of some other public authority; it may maintain a private law action to enforce a contract or otherwise protect its property … But in every such instance, and no doubt many others where a public body asserts claims or defences in court, it does so, if it acts in good faith, only to vindicate the better performance of the duties for whose fulfilment it exists. It is in this sense that it has no rights of its own, no axe to grind beyond its public responsibility; a responsibility which defines its purpose and justifies its existence.”
“(3) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of subsection (1) of this section to the extent that the law in question makes provision for the compulsory taking of possession in the public interest of any property, or the compulsory acquisition in the public interest of any interest in or right over property, where that property, interest or right is held by a body corporate established by law for public purposes in which no moneys have been invested other than moneys provided from public funds.”
“the right of a corporation to defend itself from an attack of this kind extends not merely to property – not merely to the existence of the corporation in the smallest sense, that is, to the continued existence of the corporation as such, but to its existence also in the larger sense, that is, to the existence of the corporation with all its rights and privileges; and that an attack on a substantial portion of its privileges, rights, and duties, is as much within the purview of the authorities as an attack on its property or its mere existence.”
“There must be ‘taking’ by reference to loss in the value of identifiable property”
“18. … They [the cases on regulation] establish clearly that there are limits to the concept of taking property and that some types of state action which could linguistically be so regarded are not to be regarded as justiciable. It is well established that measures adopted for the regulation of activity in the public interest, such as planning control or the protection of public health, will not constitute the taking of property, notwithstanding the fact that they may have an adverse economic effect on the owners of certain properties.So too in the Jamaican appeal of Panton v Minister of Finance (No 2)(2001) 59 WIR 418 the Board held that the assumption under statutory powers by the Minister of Finance of the temporary management of certain companies whose affairs were under investigation did not constitute a taking of the appellants’ property. It is the respondent’s case that the replacement of an existing highway by an improved road on which a toll is charged is governed by the same principle.”
“The give and take of civil society frequently requires that the exercise of private rights should be restricted in the general public interest. The principles which underlie the right of the individual not to be deprived of his property without compensation are, first, that some public interest is necessary to justify the taking of private property for the benefit of the state and, secondly, that when the public interest does so require, the loss should not fall upon the individual whose property has been taken but should be borne by the public as a whole. But these principles do not require the payment of compensation to anyone whose private rights are restricted by legislation of general application which is enacted for the public benefit. This is so even if, as will inevitably be the case, the legislation in general terms affects some people more than others.”
“But that case concerned the removal from office of one who was not only a shareholder but a managing director who drew a percentage of the profits from the business. In that case a taking of property could be identified. In the present case no one has been dismissed and nothing has been taken. The shareholders remained holding their shares. The statutory provisions were, as the Court of Appeal recognised, of a regulatory not a confiscatory nature, and no obligation for compensation arises.”
“Section 9 Protection of freedom of expression (1) Except with his consent, no person shall be hindered in the enjoyment of his freedom of expression, and for the purposes of this section the said freedom includes freedom to hold opinions and to receive and impart ideas and information without interference, and freedom from interference with his correspondence. (2) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this section to the extent that the law in question makes provision— (a) that is reasonably required— (i) in the interests of defence, public safety, public order, public morality or public health; or (ii) for the purpose of protecting the rights, reputations and freedom of other persons or the private lives of persons concerned in legal proceedings, preventing the disclosure of information received in confidence, maintaining the authority and independence of the courts, regulating telephony, telegraphy, posts, wireless broadcasting, television or other means of communication or regulating public exhibitions or public entertainments; or (b) that imposes restrictions upon public officers or teachers, except so far as that provision or, as the case may be, the thing done under the authority thereof is shown not to be reasonably justifiable in a democratic society.”
“The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.”
“20 The European Commission on Human Rights and the Strasbourg court have repeatedly held in decisions on admissibility that article 10 did not protect the right to vote or other rights already secured by A3P1 as the lex specialis. See, for example, Liberal Party v United Kingdom(1980) 4 EHRR 106 , paras 14—16, and the other cases to which the Lord Ordinary referred 2014 SLT 213, para 37. This is consistent with the wording of article 10 and with the approach to construction of the ECHR which considers an individual article in the context of the Convention as a whole. In any event, there is nothing in the Strasbourg jurisprudence to suggest that a claim under article 10, if admitted as in Hirst v United Kingdom 42 EHRR 849, would confer a wider right of political participation by voting or standing for election than that protected by A3P1: Hirst, para 89; Anchugov and Gladkov given4 July 2013 , paras 113—116; Ždanoka v Latvia(2006) 45 EHRR 478 , para 141. The claim under article 10 therefore fails.”
“are the repositories of powers which are essentially of an administrative nature and concern the organisation and provision of local services. These powers are granted by statute or other subordinate legislation which defines closely and restrictively their field of application.”
“The First Amendment’s guarantee of free speech applies to teacher’s mailboxes as surely as it does elsewhere within the school”
“The method of constituting municipal authorities, and even whether there should be such authorities, is a matter for the Legislature, and is untouched in the Constitution. Such authorities are entirely the creature of statute; and it is for the Legislature to decide whether to create, change or abolish them. The right of freedom of expression which is here invoked is the right of freedom of expression in municipal elections and, if such elections may be abolished, as, in my view, they can, the right is no longer relevant, unless it can be said that there is a right to those elections, which there is not. Any right to freedom of expression of opinion as to who should be on an elected council cannot subsist if the council ceases to be an elected one. There is a right to an election now, because that is what the Legislature has ordained; but that ordinance is not perpetual; and that which the Legislature has ordained it can also revoke.”