By Evarist Baimu Nyaga Mawalla - Home

policy justifies these distinctions, logically unassailable as all, or some at least of them,may be.What is certain is that if am right it does not matter for the purpose in hand, since neitherclass of error gives a right of damages, but if I am wrong and the majority decisioncorrect, a new and probably unattractive branch of jurisprudence is almost certain to arisein Trinidad and elsewhere, based on the distinction between those judicial errors whichdo, and those which do not, constitute a deprivation of due process of law.Since it appears to lie at the heart of the argument which has appealed to the majority, thetime has now come to examine the effect of section 6 of the Constitution of 1962. Does itmake any different? Does it grant what had hitherto been withheld, a right to damages incases of judicial misbehavior, albeit limited to deprivation of due process? The majoritydecision involves an affirmative answer. Section 6 provides:“6 (1) for the removal of doubts it is hereby declared that if any person alleges that any ofthe provisions of the foregoing sections or section of this Constitution has been, is being,or is likely to contravened in relation to him, then, without prejudice to any other actionwith respect to the same matter which is lawfully available, that person may apply to theHigh Court shall have original jurisdiction (a) to hear and determine any applicationmade by any person in pursuance of subsection (1) of this section;…. And may makesuch orders, issue such writs and give such directions as it may consider appropriated forthe purpose of enforcing, or securing the enforcement of, any of any of the provisions ofthe said foregoing sections or section to the protection of which the person concerned isentitled … (4) any person aggrieved by any determination of the High Court under thissection Amy appeal therefrom to the Court of Appeal. (5) Nothing in this section shalllimit the power of Parliament to confer on the High Court or the Court of Appeal, suchpowers as Parliament may think fit in relation to the exercise by the High Court or theCourt of Appeal, as the case may be, of its jurisdiction in respect of matters arising underthis Chapter”it is perhaps worth marking that the side note to the whole section reads: “Enforcement ofprotective provisions” This is the section which is alleged to have made by necessaryintendment fundamental judges, on servants of the executive acting on a judge’s warrant,and on the Crown or state, and providing that the state should pay damages in respect ofjudicial misconduct, even though the judge himself remains immune, a possibility Idiscuss later.The first comment which I feel myself constrained to make is that I find it more that alittle surprising that a section giving a totally new cause of action against the state(particularly prior to the enactment of the Crown Liability and Proceedings Act 1966 andin the light of section 3 set out above) should begin with the somewhat anodyneexpression “for the removal of doubts it is hereby declared” An expression of this kind isnot unusual in Westminster model legislature ,but I must say that if the section beintended to create a fundamental change in the accepted law of state liability [as it mustbe if the appellant’s case and the majority decision be correct]it will be the first time that27