Selected Judgments

AuthorAlbert Fiadjoe
ProfessionProfessor of Public Law at the University of the West Indies and a former Dean of Law
124 | Telford Georges: A Legal Odyssey
Contribution To Public Law
The Caribbean has produced a number of outstanding judges but
none has shown as reforming a zeal as Telford Georges. Very early on
in his judicial career, he was to show his penchant for reform in one
of the most remarkable decisions in Thornhill v AG of Trinidad &
Telford Georges’s contribution to the development of Caribbean
Public Law has been phenomenal. His public law decisions span a
wide range of topics. Prominent among these are burning issues in
natural justice law, legitimate expectation, grounds of judicial review
and remedies.
The golden thread which seems to run through the decisions sampled
below is that the Caribbean legal order not only requires good systems
of law, per se, but also credible law enforcement mechanisms which
provide a secure legal environment for the protection of citizens’ rights.
His decisions are commonsensical and forward-looking. For example,
at a time when English law was closing doors to aliens from taking
advantage of the principles of natural justice, Telford Georges was
opening avenues for review to aliens in the Caribbean. Also reflected
throughout the judgments is Telford Georges’s philosophy of
adjudication discussed in chapter 7.
The judgments follow a carefully thought-out pattern. The plaint
of the parties is expressed in simple, straightforward narrative, the law
is set out succinctly and lucidly, and then both parts are intermixed
and interwoven into a plainly readable decision.
We have selected a few landmark decisions as being illustrative of
Telford Georges’ approach to adjudication and we group these under
the broad headings of: Contitutional Law; Administrative Law; and
Selected Judgments | 125
We begin with the case of Thornhill v AG of Trinidad & Tobago
because, in a very stark way, that case illustrates the philosophy of
Georges J, as he then was, as a young judge on the Bench in Trinidad
and Tobago.
As far as we can remember, appellate courts hardly take much
notice of the decision of a Judge at first instance, nor do legal
commentators assess the contribution of a higher authority from an
appellate court. But, indeed, notice has been taken of the seminal
decision of Georges J in this case which has been characterised as
perhaps the most radical decision in Public Law in the region.
This revolutionary, ground-breaking decision was commented on
by Lord Diplock in the Privy Council. In upholding the High Court
decision over that of the Court of Appeal, Lord Diplock made great
play of the “lucidity and cogency” of the judgment of Georges J “to
which their Lordships would desire to pay respectful tribute”.
The Court of Appeal of Trinidad and Tobago unanimously reversed
the first instance decision of Telford Georges J. A comparison between
the two decisions reveals the big divide between a reformist-minded
approach and a pro-establishment and conservative-minded line of
constitutional adjudication.
This clearly discernible approach in constitutional adjudication by
Georges J is to start with the Constitution, rather than the Common
Law, and then to extend the law to its outer extremeties without
“breaking” the Constitution.
Thornhill, at first instance, then provides us with valuable insights
into the approach of Georges J. to constitutional adjudication. As
hindsight would have it, Caribbean Public Law is very much troubled
with the common law phenomenon of constitutional adjudication.
Each landmark decision of the Privy Council on Caribbean
Constitutions has been rationalised by reference to the common law;
sometimes leaving the Privy Council to grapple with some glaring
Section 24(2)(b) of the Constitution of Barbados is fairly
representative of the other constitutions. It provides that, in the
enforcement of the protective provisions dealing with the fundamental
126 | Telford Georges: A Legal Odyssey
rights, the court ‘may make such orders, issue such writs and give
such directions as it may consider appropriate for the purpose of
enforcing or securing the enforcement’ of these provisions.
Early indications were that the courts did not seem to embrace the
amplitude of powers which appeared to have been conferred upon
The Jaundoo case, which held that a coercive remedy did not lie
against the Crown, represented a singularly retrograde judgment in
the light of other decisions of the Privy Council which pointed in the
opposite direction.
Happily, the restrictive approach did not last long. Cases such as
Fisher and Maharaj quickly pointed the opposite way. The courts were
called upon to avoid the ‘austerity of tabulated legalism’ in Fisher, while
Maharaj provided a new remedy in public law for judicial errors which
infringed the human rights provisions. On balance, Caribbean courts
have tended more and more to move liberally in the direction of judicial
activism, especially in human rights matters and to reject formalism.
The view that the fundamental human rights provisions were nothing
more than a replication of common law rights no longer commands
respect in legal circles. Indeed other, non-common law sources and
rights have been identified and recognised by the Caribbean courts.
Among these sources are ‘public law’, international human rights norms
and conventions, de facto executive practice, the Canadian Bill of Rights,
as well as the American Constitution. And, recently, the Privy Council
has left the door ajar for the recognition of rights far beyond those
that existed at common law but consistent with the continued expansion
of the human rights norms and conventions after which they were
patterned. This view reflects pragmatism in constitutional adjudication
by jettisoning what has been aptly described as ‘the common law
phenomenon in constitutional interpretation’.
The issues raised in Thornhill were novel. The applicant sought a
declaration as to an alleged infringement of his fundamental right in
relation to the procedural matter of taking a statement from an accused
person. Arguments submitted by the State reflected the traditional
view that the Constitution did not confer any new rights beyond the
common law, and certainly not procedural rights. Such conservatism
did not impress Georges J.

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