Selected Judgments

• Author: Albert Fiadjoe
• Profession: Professor of Public Law at the University of the West Indies and a former Dean of Law
• Pages: 124-223

124 | Telford Georges: A Legal Odyssey

SELECTED JUDGMENTS

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 &

Tobago.1

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

Other.

Selected Judgments | 125

(A) CONSTITUTIONAL LAW

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

contradictions.

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

them.

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.