Business

The constitution: not just a lawyer's last resort

Legal Notes

Wednesday, June 19, 2019

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It is not uncommon to hear attorneys who have been dealt facts, which allow only for less than solid legal arguments, resort to fierce defence of “the constitutional rights” of their clients.

Though Jamaica is the source of one of the most important constitutional judgements in the entire Commonwealth, namely the 1975 Privy Council decision of Hinds v R, it can often feel like the true significance of the constitution is unappreciated.

As a result, its use is often relegated to flippant name-dropping without actual legal argument.

A separate, but no less unfortunate result, is the idea that constitutional arguments are only useful in cases which involve challenges to laws prohibiting acts like abortion and buggery.

The constitution should not be seen as limited in its scope of impact, or as dead word. The recent decision of the Full Court in Julian Robinson v. The Attorney General of Jamaica (the NIDS case) is just one example of how deeply consequential a constitutional argument can be. Constitutions have long protected the most intimate and sacrosanct of individual rights. The cases discussed in this article demonstrate, however, that the business environment is also a ripe area for both individual and corporate rights to be protected and/or violated.

The case of J Astaphan & Co (1970) Ltd v Comptroller of Customs of Dominica and Others is one which shows that the constitution cares as much about the fairness of state-to-business relations as it does about state-to-individual relations. In 1991 and 1992, in the island of Dominica, J Astaphan & Co (1970) Ltd — one of the biggest importers in the nation — imported a set of Mitsubishi spare parts. To clear the spare parts at customs, the company was required to present the invoice and other necessary shipping documents. It did not have these documents. Happily (at least it probably seemed so at the time), the Dominican Customs (Control and Management) Act provided that where an importer was unable to provide documents to clear his goods, he could sign a declaration to the 'proper officer' and that officer could estimate the duties to be paid on his goods so that the goods could be cleared. If the importer later received the necessary documents so that the duty could be accurately calculated and he realised that the customs officer had overestimated the duty, he could, within three months, make a claim to the Comptroller of Customs to be refunded the overpayment. After 90 days, however, any overpayment would be the Comptroller's to retain (or at least so the Act said).

The customs officer overestimated the duty on the Mitsubishi spare parts by a not insignificant $81,824.40. However, 90 days elapsed by the time J Astaphan submitted its claim. The Comptroller promptly informed J Astaphan's accountant that the company's claim was dishonoured for being out of time and no money would be refunded. Counsel for J Astaphan went to battle with the constitution as its only useful weapon and J Astaphan won. The court held both that:

The Act unconstitutionally conferred a power of taxation, which is rightfully Parliament's power, on the Executive; and the retention of the excess duty which was paid by J Astaphan was an unconstitutional compulsory acquisition of property.

The Comptroller was ordered to return the excess $81,824.40 to the company.

Constitutional law has also ventured into the realm of the grant of commercial licences, such as in Cable and Wireless (Dominica) Ltd v. Marpin where the Privy Council held that the grant of an exclusive licence could, on its face, represent a breach of the constitutional rights of other companies which provided similar services. In that case, however, the Privy Council did not come to a decision regarding whether the grant of the licence was unconstitutional, but instead remitted the matter to the local courts to determine whether the grant was in the public interest.

The Jamaican Constitution is also quite unique among most of its Commonwealth counterparts. It creates the possibility for any legal person, including companies, to violate the constitutional rights of others. For most of history, and presently in most Commonwealth jurisdictions, the burden to refrain from infringing on the constitutional rights of others was/is borne almost entirely by the Government. The amendment to the Jamaican Constitution in 2011 ushered in a duty on all persons to consider the constitutional implications of their actions before taking them. Persons have already argued that the actions of body corporates violated constitutional protections of freedom of expression and freedom of thought. It does not take a far stretch of the imagination to foresee that challenges may be brought on grounds that corporate actions infringe upon privacy rights, rights to equality, property rights and other such protections under the constitution.

The effect of the provision has been understated, and certainly much less revolutionary than some initially predicted.

However, it may just be that greater awareness of constitutional rights and responsibilities is needed. J Astaphan challenged the retention of its overpayment on customs duty in 1993. By that time, the Act under which the Comptroller of Customs so firmly rejected its claim for a refund was in place for eight years. It is not hard to imagine that several companies may simply have accepted such a rejection and counted it an unavoidable loss. But the constitution — and argument grounded in the protections it affords — is no respecter of time or majority acceptance.

We live in an age far removed from 1993. It is an age when a constitutional judgement was deemed so important that it was broadcast live to a nation. In this age, it is important that both individuals and companies see the constitution not as an afterthought, but as the court has so often deemed it: a living instrument.

Y.M. Fitz-Henley is an Associate at Myers, Fletcher and Gordon, and is a member of the firm's Litigation department. He may be contacted at yakum.fitz-henley@mfg.com.jm or via the Firm's website www.myersfletcher.com. This article is for general information purposes only and does not constitute legal advice.


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