By Evarist Baimu Nyaga Mawalla - Home

creates new rights and freedoms which are not part of the common law that does notdetract from the argument on section 6 and any new rights are enforceable by the normalprocess section 3 of the constitution provides that sections 1 and 2 shall not apply inrelation to any law in force at the commencement of the constitution. By section 1 of 5existing law includes the common law. Common law deals with public policy. Judicialimmunity from the consequences of an act done in a judicial capacity is an aspect ofpublic policy. The same immunity extends to officers acting in an obedient to a judge’sorder. To hold otherwise would lead to dissatisfied litigants sidestepping appellateprocedure by a collateral action complaining that their fundamental rights and freedomhad been infringed by an executive officer acting on the order of a judge. Apandora’sbox would be opened: act consequent on an order of the High Court or of the judicialcommittee could be challenged in the High Court.Before the State Liability and Proceedings Acts 1966 in general no action by against astate for wrongs committed by its servants. That Act permitted proceedings in tort but inthe instant case no tort is alleged, no action lies for the act complained of and, exhypothesis, the Attorney-General cannot be named as a defendant.Turner-Samuels Q.C. in reply. Section 3 of the constitution must be appropriate toparticular circumstances. Although research has not revealed a case where a personwrongful sent to prison has obtained damages save for tort of false imprisonmentjaundoo v. attorney-general of Guyana shows that monetary compensation is appropriatewhere there is no other remedy.The attorney-general is the appropriate party against whom a plaintiff may bringproceedings for redress under section 6 of the constitution if a plaintiff has remedyagainst the state, Attorney-General is the damages. Note the provision of the state(formally crown) liability and proceedings acts 1966. Philips J.A was right in saying thatthe human right and fundamental freedoms declared by section 1 and specificallyprotected by section 2 of the constitution were primarily justifiable against the state. Theprinciple is that fundamental rights being guaranteed no organ of the state may act incontravention of them. The order of Maharaj J. was not the act of an ordinary tort feasor.56