By Evarist Baimu Nyaga Mawalla - Home

ights and freedoms to satisfy the requirements of the new Constitution as respectsthose rights and freedoms that are specifically referred to.Some of the rights and freedoms described in section 1 are of such a nature that forcontraventions of them committed by anyone acting on behalf of the state or somepublic authority, there was already at the time of the Constitution an existing remedy,whether by statute, by prerogative writ or by an action for tort at common law. Butfor others, of which “© the right of the individual to respect for his private and familylife” may be taken as examples, all that can be said of them is that at the time of theConstitution there was no enacted law restricting the exercise by the individual of thedescribed right or freedom.The right or freedom existed de facto. Had it been abrogated or abridged de facto byan executive act of the state there might not necessarily have been a legal remedyavailable to the individual at a time before the Constitution came into effect; as, forinstance, if a government servant’s right to join political parties had been curtailedby a departmental instruction.Nevertheless, de facto rights and freedoms not protected against abrogation orinfringement by any legal remedy before the Constitution came into effect are, sincethat date, given protection which is enforceable de jure under section 6 (1): of OlivierN. Buttigieg [1967] I. A. 115.The order of Maharaj J. committing the appellant to prison was made by him in theexercise of the judicial powers of the state; the arrest and detention of the appellantpursuant to the judge’s order was effected by the executive arm of the state. So if hisdetention amounted to a contravention of his rights under section 1 (a), it was acontravention by the state against which he was entitled to protection.Whether it did amount to a contravention depends upon whether the judge’s orderwas lawful under the law in force before the Constitution came into effect. At thattime the only law governing contempt of court in Trinidad and Tobago was thecommon law; and at common law it had long been settled that“ … no person should be punished for contempt of court, which is a criminal offence,unless the specific offence charged against him be distinctly stated, and opportunityof answering it given to him …” in re Poland (1868) L.R P.C. 106, 120.That the order of Maharaj J. was unlawful on this ground has already beendetermined in the previous appeal; and in their Lordship’s rights under section 1 (a)not to be deprived of his liberty except by due process of law.It is true that under the law in force at the coming into effect of the Constitution theonly remedy available to the appellant against an order for committal that wasunlawful on this or any other ground, would have been an appeal to the JudicialCommittee of the Privy Council, by special leave, to have the order set aside. No17