Corporations should be aware of the fact that, under the Charter of Fundamental Rights and Freedoms, they owe obligations to their consumers, employees, and even the public. They do not only carry the burden of obligation, but corporations also enjoy the benefit of constitutional protections. Among the innovations that came with the not-so-new Charter of Fundamental Rights and Freedoms, 2011, are clear provisions that gives “all persons… a responsibility to respect and uphold the rights of others”, as guaranteed in the charter, and “binds… juristic persons”, such as companies, to comply with its provisions but also entitle them to make full use of its protections.

The business that is alert to its constitutional rights and obligations may fare best in this dispensation of growing commercial-related constitutional law litigation.

J Astaphan & Co (1970) Ltd v Comptroller of Customs of Dominica and Others is one of the uncommon, but growing, examples of a corporation exercising its rights under the constitution to challenge fees imposed on it by the State. In that case, customs officials were permitted by law to estimate the value of goods for the purpose of assessing customs duties in instances in which the importer was unable to provide definitive proof of value at the time of assessment. The legislation also permitted the officials to charge a further sum in addition to the estimated value of the goods. The corporation sued, alleging that the official’s power to charge a further sum was unconstitutional due to the following:

i) Compulsory acquisition of property (the company’s money), since, unless the charge is a penalty for not being able to furnish the necessary documents, there was no basis for the imposition of the further sum;

ii) If the charge was a penalty, it violated the doctrine of separation of powers since it confers the judicial power of discretion to determine a penalty on a customs official, who is a member of the executive; and/or

iii) If not a penalty but a tax or additional duty, a violation of the doctrine of separation of powers, since only the legislature had power to impose taxes or duties and not the customs officials who were part of the executive.

The court upheld the constitutional challenge and ordered that the further sum extracted from the claimant be refunded to it, with interest. The provision in the law that permitted the officials to charge the further sum was declared void, sparing future importers, and imports by that company, the burden of similar charges.

Companies have also been able to assert their own constitutional rights in resisting claims brought against them for breaches of the constitutional rights of others, such as in Maurice Tomlinson v TVJ et al , whereby our Supreme Court recognised that the charter’s freedom of expression provisions also guarantees broadcasters’ right to journalistic discretion.

Presently, a corporation is challenging the constitutionality of the Industrial Disputes Tribunal on the basis that the manner of appointment, remuneration, and security of tenure of members of the tribunal breaches its rights to a fair hearing before an independent and impartial body and the principle of separation of judicial and executive powers.

In addition to vindicating their own rights, our Supreme Court has also determined that certain rights, such as the right to freedom of expression, are applicable in claims against private corporations. These include claims brought by employees, such as in Brendan Courtney Bain v The University of the West Indies. Following the court’s reasoning and approach in the freedom of expression cases, it is entirely possible, though not yet tested, that a private entity may also be held to account for whether it engages in discriminatory practices, in respect of one of the protected grounds specified in the charter, such as social class, political opinions, or religion. In the heights of the COVID-19 pandemic, employees also sought to bring constitutional challenges to their employers’ workplace policies on the basis of a violation of the right to privacy, among other rights. Although these claims failed, they demonstrate the growing disposition to hold corporations to account for breaches, real or perceived, of constitutional rights.

Another innovation that came with the charter is the inclusion of what is called “third-generation rights”. These provisions are not among the traditional constitutional guarantees, such as freedom of movement, right to life, and freedom of expression, which have been included in the earliest examples of rights-bearing instruments. They are among a new wave of rights found in modern constitutional instruments, which tend to reflect the evolution of societal values surrounding issues such as access to education, pollution-free environment, and climate change.

Third-generation rights provide a fertile ground for potential litigation against mining companies, manufacturers, and developers, to name a few. One example of a third-generation right which is protected in our charter is the right to enjoy a healthy and productive environment free from the threat of injury or damage from environmental abuse and degradation of ecological heritage. This provision has already featured in this new era of constitutional law litigation in proceedings against bauxite mining operations which are said to have infringed the right to a healthy environment through air pollution said to be associated with the entity’s activities.

Commercial litigation regarding constitutional law issues is growing in prominence in Jamacia. Corporations will do well to keep themselves informed of their rights and obligations under the constitution to safeguard against litigation risk and as a tool in their arsenal.

Matthew Royal is an associate in Myers, Fletcher & Gordon’s Litigation Department. He may be contacted via matthew.royal@mfg.com.jm or www.myersfletcher.com. This article is for general information purposes only and does not constitute legal advice.