St. Luce v Attorney General et Al

• Jurisdiction: Antigua and Barbuda
• Judge: Davis C.J.
• Judgment Date: 10 November 1975
• Neutral Citation: AG 1975 CA 4
• Docket Number: Civil Appeal No. 2 of 1973
• Date: 10 November 1975
• Court: Court of Appeal (Antigua and Barbuda)

Court of Appeal

Davis, C.J.; St. Bernard; J.A.; Peterkin, J.A.

Civil Appeal No. 2 of 1973

St. Luce

and

Attorney General et al

Constitutional law - Public Order Act, 1972 — Constitutionality of sections 3, 4(1)(2)(a)(b)(c) and 5(1) and (2) — Whether reasonably required in the interest of public order — Whether method of control provided by the section was so seriously defective as to warrant it being struck down — Finding by court that the sections of the Act impugned were regulatory rather than prohibitory and were reasonably required in the interest of public order — Sections were therefore constitutional.

1 Davis C.J.; This is an appeal against so much of the judgment of Adams J, delivered en 28th May 1973, in which he held that sections 3 4(1) 4(2) (a) and (b), and 5(1) of the Public Order Act 1972 (No.9 of 1972 of the, laws of the State of Antigua) were valid and constitutional. He also held that sections 4(2)(c) and 5(2) were unconstitutional and this forms the subject matter of the cross appeal filed by the respondents,

2 The matter came on for hearing by way of a motion which was supported by the affidavit of the appellant along with certain exhibits which evidenced an exchange of letters between the appellant on the one hand and the Chief of Police on the other. The facts and circumstances which gave rise to the motion are contained in the appellant's affidavit and in the letters. The letters show that on 15th December 1972 application was made to the Chief of Police by the appellant for permission for his party (The Antigua Labour Party) to hold a public political meeting on 20th December 1972. The Chief of Police replied on 16th December drawing the appellant's attention to the relevant sections of the Public Order Act and asking that the particulars required by the Act be furnished so that the application might be expeditiously processed. The appellant then replied by letter of 17th December stating that his Executive Council refused to provide the information requested as they considered it a fetter on the right of freedom. To this the Chief of Police replied by letter of 18th December to the effect that he could not grant the permission sought until the information required was furnished.

3 Before stating the reason for the passing of the Act; it is necessary to clear the air by referring to the powers conferred upon Parliament for making laws for the peace order, and good government of Antigua. It is conferred by Section 37 of the Constitution which reads as follows:” Subject to the provisions of this Constitution, Parliament may make laws for the peace, order and good government of Antigua.” The reason for the passing of the Act and the circumstances giving rise to it are contained in the sworn affidavit of the appellant at paragraph 5:

“5. In November 1972, the Public Order Act, No.9/72, was passed by both Houses of Parliament over the bitter and sustained opposition of my Party which challenged it as infringing upon the entrenched rights of the citizen and accordingly unconstitutional. The Government claimed that the Act was necessary because my Party was holding too many meetings at which things were said which scared away investors from Antigua. They also claimed that the measure was necessary to curb the unrest in the State which manifested itself in threats to and bombings of some public buildings by person or persons unknown.’

4 The reason for the stand taken by the appellant against the Act is also contained in the affidavit at paragraphs 8 and 9.

• 8 My Party continues to maintain the position that the imposition of a requirement that any person should first obtain the permission of anyone to speak, assemble or march is repugnant to the right of freedom to speak assemble and protest and directly contrary to the ideals of and practices in a democratic society.

• 9. Nay Party is further of the view that the only reason for the enactment of the Public Order Act is to stifle criticism of Government actions in direct contravention of the rights granted to every person in Antigua by sections 10 and 11 of our Constitution.”

5 The relevant sections 3 4. and 5 of the Public Order Act 1972 (No.9 of 1972) are as follows:

• “3. Notwithstanding anything contained in any other law but subject to section 9, no person may organise, hold call together or address a meeting in any public place unless a permit has been issued in respect thereof by the Chief of Police.

  • 4.(1) Any person who desires to organise hold or call together a meeting in a public place shall, at least two days before the day on which it is proposed to hold such meeting, apply to the Chief of Police for a permit.

  • (2) Every application under subsection (1) shall specify–

    • (a) the name or names of the person or persons desiring to organise; hold or call together the meeting;

    • (b) the place at which the meeting is to be held and the approximate time at which it is to begin; and

    • (c) the name of every speaker who is to address the meeting, and whether such person is a belonger or non-belonger.

  • 5.(1) The Chief of Police, on an application made to him under subsection (1) of section 4, having regard to the preservation of public order and the interest of public safety, shall grant of refuse the application.

  • (2) Where an application is granted under this section the Chief of Police shall issue to the Applicant a permit for the desired meeting specifying therein the times between which the meeting may be held and such other terms as the Chief of Police may consider necessary for the preservation of public order or in the interest of public safety.”

6 The grounds of appeal in the appellant's appeal are:

• ‘(1) The learned trial judge is wrong in concluding that sections 3;4 and 5 of the Public Order Act are regulatory and therefore constitutional.

• (2) The learned trial judge is wrong in finding that sections 3, 4(1), 4(2)(2) and 5(1) of the Public Order Act do not infringe the rights conferred upon the appellant by sections 10 and 11 of the Antigua Constitution Order 1967.

• (3) The learned trial judge relied upon extracts of judgments from three cases decided in the Supreme Court of the United States, namely, Middleton v. Texas Power Co. (1919) 249 U.S.152; Dennis et al. v. United States (1951) S.C. and Hood v. DuMond (1947) 336 U.S.525 which were not cited to him and which were not relevant to the case before him and ignored relevant United States cases which were brought to his attention.”

7 The grounds of appeal in the cross-appeal are:

• “(1) The learned trial judge was in error in declaring that sections 4(2)(c) and 5(2) of the Public Order Act 1972 go beyond what is reasonably required for the preservation of public order or in the interest of public safety, and are therefore unconstitutional.

• (2) Alternatively, the learned trial judge was in error in not applying “the doctrine of severability” with respect to section 5(2) of the Public Order Act 1972, and in not declaring that the provisions of that section except the words “the times between which the meeting may be held” and the word “other” are reasonably required in the interests of public order and/or public safety and therefore valid and constitutional.”

8 It is necessary at this stage to set out in full section 1 of Chapter 1 of the Antigua Constitution, headed “Protection of Fundamental Rights and Freedoms”.

• “1. Whereas every person in Antigua is entitled to the fundamental rights and freedoms of the individual, that is to say, the right, whatever his race place of origin, political opinions: colour, creed or sex but subject to respect for the rights and freedoms of others...