By Evarist Baimu Nyaga Mawalla - Home

“ Section 3 debars the individual from asserting that anything done to him that isauthorized by a law in force immediately before August 31, 1962, abrogates, abridgesor infringes any of the rights or of freedoms recognized and declared in section or orparticularized in section 2”But section 3 does not legitimize for the purposes of section 1 conduct whichinfringes any of the rights or freedoms there described and was not lawful under thepre-existing law. There was no pre-existing law which authorized that of whichcomplaint is made in this case: section 3 (1) therefore does not over-ride theconstitutional right of appellant under section 1.True, he had no remedy, other than appeal for infringement of his right. In so far assection 6 supplies a remedy where pre-existing law said there was none, section 3 (1)does not deny it, since it does not refer to section 6. section 6 (1) to which it will benecessary to revert in grater detail when dealing with question (3), is not expressed tobe subject to section 3. it is general in its terms.So it applies to any interference with a right or freedom recognized any declared bysection 1, except in so far as that interference would have been lawful under the lawin force in Trinidad and Tobago on August 31, 1962. if it would not have been lawfulunder that previously existing law, section 6 crates a new right on the part of thevictim of the interference to claim a remedy for it described as “redress”. This remedyof “redress” co-exists with any other remedy to which the victim may have beenentitled under the previously existing law.To revert then to the legal nature of the rights and freedoms described in paragraphs(a) to (k) of section 1, and, in particular to the question: against whom is theprotection of the individual in the exercise and enjoyment of those rights andfreedoms granted? In his dissenting judgment Philips J.A. said:“ The combined effect of these section [1,2 and 3] in my judgment, gives rise tothe necessary implication that the primary objective of Chapter 1 of the Constitutionis to prohibit the contravention by the state of any of the fundamental rights orfreedoms declared and recognized by section 1”.Read in the light of the recognition that each of the highly diversified rights andfreedoms of the individual described in section 1 already existed, it is in theirLordships’ view clear that the protection afforded was against contravention of thoserights or freedoms by the state or by some other public authority endowed by lawwith coercive powers.The Chapter is concerned with public law, not private law. One man’s freedom isanother man’s restriction; and as regards, infringement by one private individual ofrights of another private individual, section 1 implicitly acknowledges that theexisting law of torts provided a sufficient accommodation between there conflicting16