1. The Honourable Attorney-General 2. The Honourable Minister of Finance Appellants v 1. E. Ann Henry Goodwin 2. Lockhart and Defreitas 3. Maxwell Francis 4. Alvin Edwards Respondents [ECSC]

• Jurisdiction: Antigua and Barbuda
• Judge: MATTHEW J.A. (Ag.),Chief Justice,SATROHAN SINGH,Justice of Appeal
• Judgment Date: 25 October 1999
• Judgment citation (vLex): [1999] ECSC J1025-1
• Court: Court of Appeal (Antigua and Barbuda)
• Docket Number: Civil Appeal No.10 of 1997
• Date: 25 October 1999

[1999] ECSC J1025-1

IN THE COURT OF APPEAL

Before:

The Hon. Mr. C.M. Dennis Byron—Chief Justice

The Hon. Mr. Satrohan Singh—Justice of Appeal

The Hon. Mr. Albert N.J.matthew—Justice of Appeal (Ag.)

Civil Appeal No.10 of 1997

Between:

1. The Honourable Attorney-General

2. The Honourable Minister of Finance

Appellants

and

1. E. Ann Henry Goodwin

2. Lockhart and Defreitas

3. Maxwell Francis

4. Alvin Edwards

Respondents

Appearances:

Mr. A. Astaphan S.C. and Ms. J. Laurent for the Appellants

Mr. C. Phillips Q.C., Mr. J. Simon and Mr. F.Clarke for the Respondents

MATTHEW J.A. (Ag.)

1 In November 1994, the Parliament of Antigua and Barbuda enacted the Business Licence Act, 1994 to provide for the holding of a business licence for persons engaged in any business which was defined to include professional practice and to make provision for regulating the carrying on of businesses licensed under the Act and for other incidental matters.

2 It was the view of the Respondents that the Act was unconstitutional. The No.1 Respondent was at the material time the President of the Antigua and Barbuda Bar Association. The No.2 Respondent is a firm of lawyers. The No.3 Respondent is a dental practitioner. The No.4 Respondent was at the time of the passage of the Act the President of the Antigua and Barbuda Medical Association. They decided to challenge the Act and on April 10, 1995 they filed a writ suing on behalf of themselves and all professional persons upon whom a licence is imposed under the Business Licence Act, 1994. In their writ of summons indorsed with statement of claim they alleged that several sections of the Business Licence Act infringed the provisions of the Constitution of Antigua and Barbuda.

3 The matter came for trial before Redhead J., as he then was, between July 22 and 29, 1996 after which judgment was reserved. When later on June 30, 1997 he delivered his written judgment, the learned Judge made the following declarations in favour of the Plaintiffs:

"1. Business Licence Act 1994, is unconstitutional, null and void;

2. The provisions of sections 8 and 9(2) of the Act constitute an infringement of the Plaintiffs' rights to privacy and protection from search and seizure of property assured to the Plaintiffs by sections 3 and 10 of the Constitution of Antigua and Barbuda;

3. The provisions of sections 12, 13, 20 and 21 of the Act are so disproportionate to the conduct prescribed by the Act that they constitute an arbitrary and unreasonable fetter upon the Plaintiffs' right to freedom of expression, the enjoyment of property and the protection of the guaranteed sections 3, 9 and 12 of the Constitution;

4. The provisions of section 10 of the Act are null and void and of no effect in that they contravene the provisions of section 100 of the Constitution.

5. The provisions of section 6 of the Act constitute a tax which does not fall within the public interest limitations authorized by section 12 of the Constitution, and is an abrogation of and a fetter upon the Plaintiffs' right to freedom of expression guaranteed by sections 3 and 12 of the Constitution and is not reasonably justifiable in a democratic society.

6. The jurisdiction vested in the Magistrate's Court under sections 12, 13, 20 and 21 of the Act constitutes an amendment of the jurisdiction of the Supreme Court affected in a manner inconsistent with the provisions of section 47 of the Constitution and is therefore null and void."

4 On July 31, 1997 the Defendants in the original suit filed their notice of appeal expressing their dissatisfaction with the whole of the judgment insofar as it relates to the six declarations and orders enumerated above and their dissatisfaction of the costs order made in favour of the Plaintiffs. Several grounds of appeal were put forward.

5 On October 3, 1997 the Respondents filed a notice that upon the hearing of the appeal they would seek leave of the Court to contend that the decision of the Court below dated June 30, 1997 should be affirmed on the following additional grounds, namely:

1. That sections 3, 4 and 5 of the Act abrogated or authorised the abrogation of the right of the Plaintiffs to practise their profession acquired by virtue of legislation extant at the time the Act came into force and thereby constituted a deprivation or taking of property contrary to sections 3 and 9 of the Constitution.

2. That section 11 of the Act is a violation of the right of the Plaintiffs to protection of the law to be proved guilty and to be presumed innocent under sections 3 and 15(2)(a) of the Constitution.

6 During the hearing of the submissions several important issues were raised. I categorise them briefly as follows:

(1) The right to work or earn a livelihood;

(2) The right not to be deprived of property;

(3) The protection of freedom of speech;

(4) The protection of property from arbitrary search or entry;

(5) The appointment of the Registrar of Business under section 10 of the Business Licence Act;

(6) The offence created under section 11 of the Business Licence Act;

(7) The jurisdiction of the Magistrate under the Business Licence Act; and the penalties imposed for offences created;

(8) The principle of separation of powers under Westminster Constitutions and the Business Licence Act.

7 Before I deal with the specific issues, I shall make some observations on some general submissions which were made by learned Counsel on both sides and which are very relevant to cases of this kind. The first observation that I should like to make is that in questions of adjudication upon the validity of ordinary legislation, there is a presumption of constitutionality.

8 The particular submission made stated that the learned trial Judge failed to apply and/or consider it. That presumption was made clear in Attorney-General and Minister of Home Affairs v Antigua Times [1975] 21.W.I.R. 560 at pages 573-574 in the judgment of LordFraser.

9 Again in Attorney-General of Trinidad and Tobago v Mootoo [1976] 28 W.I.R. 304 dealing with the Unemployment Levy Act, Chief Justice Hyatali made the same pronouncement. He said at page 311—

"Before considering the findings and conclusions of the learned Judge it would be useful, I think, to examine the function and responsibilities of a court and the canons by which it should be guided when it is called upon to consider and determine the constitutional validity of an enactment…….

In Fletcher v Peck Marchall C.J . defined the function and responsibility in these terms: '……….. but it is not on slight implication and vague conjecture that the legislation is to be pronounced to have transcended its powers and its acts to be considered as void.'

Hence the presumption is always in favour of the constitutionality of a statute; not against it; and the courts will not adjudge it invalid unless its violation of the Constitution is, in their judgment, clear, complete and unmistakable."

10 When the case reached the Privy Council Sir William Douglas who delivered the opinion of the Board stated at [1979] 30 WIR 411, at page 414:

"It is not in dispute between the parties that in a case involving an Act of Parliament the presumption of constitutionality applies, and that the burden cast on the appellant to prove invalidity is a heavy one."

11 See also King v Attorney-General [1992] 44 WIR 52 at page 66.

12 There was another general submission that the learned trial Judge had failed to apply and/or consider or properly apply and/or consider the respective burdens of proof which apply inconstitutional matters.

13 Put briefly, the onus of proof is on the person challenging except in the plainest cases. This was the view of Chief Justice TelfordGeorges in Frederick Smith v Commissioner of Police [1984] 50 W.I.R. 1 at page 12 where the learned Chief Justice stated:

"The Constitution places the onus of establishing that such an action is not justifiable on those attacking it. In the absence of evidence, except in the plainest of cases, that onus is not discharged."

14 And in the Zimbabwean case of Nyambirai v National Social Security Authority [1996] 1 LRC 64 at page 75, Chief Justice Gubbay stated:

"From a procedural aspect the onus is on the challenger to establish that the enactment under attack goes further than is reasonably justifiable in a democratic society and not on the State to show that it does not."

15 A third general submission was that the learned trial Judge failed to construe or properly construe the language used in the Constitution of Antigua and, instead, resorted to "divination" by the importation of and reliance on language not used in the Constitution of Antigua and on values particularly in regard to the alleged right to work or earn a livelihood purportedly deduced from the provisions of section 5 of the Constitution. I do not propose here and now to adjudicate upon that submission save to highlight a passage in the South African case, State v Zuma [1995] 1 LRC 145 at page 156 which is instructive on interpretation and construction of constitutional instruments. This case concerned a criminal trial for murder and robbery and the constitutional validity of confessions. In the course of the criminal trial the constitutional issue arose and the case was directed to the constitutional Court. In the course of the judgment, the Court held that although it should be conscious of the values underlying the constitution, and take account of the historical background and comparable foreign case law, in interpreting the fundamental rights provisions of the Constitution, its task was to interpret a legal instrument and, therefore, it should respect the language used and not ignore it in favour of a general resort to values. Kentridge J.(Ag.) who delivered the judgment of the Court stated :-

"We must heed Lord Wilberforce's reminder that even a constitution is a legal instrument, the language of which must be...