Westlaw Delivery Summary Report for LEEVY-MALCOLM,TA 5204288

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Citation Text: [1976] A.C. 16
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[1976] A.C. 16 FOR EDUCATIONAL USE ONLY Page 1
1975 WL 44919 (Privy Council), [1976] A.C. 16, [1975] 3 All E.R. 81, [1975] 3 W.L.R. 232, (1975) 119 S.J. 528
(Cite as: [1976] A.C. 16)

© 2008 Thomson Reuters/West. No Claim to Orig. US Gov. Works.

[1976] A.C. 16 FOR EDUCATIONAL USE ONLY
1975 WL 44919 (Privy Council), [1976] A.C. 16, [1975] 3 All E.R. 81, [1975] 3 W.L.R. 232, (1975) 119 S.J. 528
(Cite as: [1976] A.C. 16)
*16 Attorney-General and Another Appellants v.
Antigua Times Ltd. Respondent
[1975] 3 W.L.R. 232
Privy Council
PC
Lord Wilberforce, Viscount Dilhorne, Lord Edmund-
Davies, Lord Fraser of
Tullybelton and Sir Thaddeus McCarthy
1975 March 4, 5, 6, 10; May 19
[On Appeal from the Court of Appeal of the West
Indies Associated States
Supreme Court (Antigua)]
Antigua--Constitution--Freedom of expression--Law
requiring publisher of newspaper to obtain licence
and pay annual licence fee--Law requiring publisher
of newspaper to deposit money to satisfy any
judgment for libel--Provision that Minister 'may'
waive requirement--Whether statutes contrary to
Constitution and ultra vires--Action for declaration
brought by company--Whether company ' person'
under Constitution--Antigua Constitution Order 1967
(S.I. 1967 No. 225), Sch. 2, ss. 1, 6, 10, 15 (1)--
Newspapers Registration (Amendment) Act 1971
(Laws of Antigua No. 8 of 1971), s. 1B--Newspaper
Surety Ordinance (Amendment) Act 1971, Laws of
Antigua (No. 9 of 1971), s. 3 (2)
The respondent company was publishing a bi-weekly
newspaper 15 days before the Newspapers
Registration (Amendment) Act 1971 came into force
and, therefore, under section 1B, [FN1] would be
deemed to have been granted a licence signed by the
Secretary to the Cabinet and would lawfully continue
to publish the paper on payment of the annual licence
fee of $600. The respondent also had to comply with
section 3 of the Newspaper Surety Ordinance of 1909
by giving a bond for $960 for the payment of any
penalty imposed for blasphemous or seditious libel or
for the payment of any damages and costs awarded
for libel. A new subsection was added to section 3, by
section 3 (2) of the Newspaper Surety Ordinance
(Amendment) Act 1971, [FN2] which made it
unlawful to print or publish *17 a newspaper unless,
in addition to the bond, $10,000 had been deposited
© 2008 Thomson Reuters/West. No Claim to Orig. US Gov. Works.
Page 2
with the Accountant General to satisfy any judgment
of the Supreme Court for libel but with the proviso
that the Minister, being satisfied with the newspaper's
security in the form of a policy of insurance or a
bank's guarantee, 'may' waive the requirement for the
deposit.
FN1 Newspapers Registration (Amendment) Act
1971, s. 1B: '(1) No person shall publish or cause to
be published any newspaper unless he has obtained a
licence from the Cabinet in respect of the newspaper
published or caused to be published by him and has
paid the annual licence fee prescribed by this Act.
Provided that every person who prints or publishes a
newspaper registered under the provisions of the
Principal Act 15 days before the commencement
hereof and has paid the annual licence fee prescribed
by this Act shall be deemed to have been granted a
licence. (2)... the person named in the licence as the
publisher of the newspaper specified therein shall...
in every year pay into the Treasury the sum of 600
dollars.'
FN2 Newspaper Surety Ordinance (Amendment) Act
1971, s. 3: '(2) No person shall print or publish or
cause to be printed or published within the state any
newspaper unless he shall have previously deposited
with the Accountant General a sum of 10,000 dollars
in cash to be drawn against in order to satisfy any
judgment of tho Supreme Court for libel given
against the editor or printer or publisher or proprietor
of the said newspaper or any writer therein and shall
at all times maintain the said deposit at the sum of
10,000 dollars.... Provided however that the Minister
responsible for newspapers on being satisfied with
the sufficiency of the security in the form of a policy
of insurance or on a guarantee of a bank may waive
the requirement of the said deposit:...'
The respondent applied to the High Court under
section 15 (1) of the Constitution [FN3] claiming
declarations that section 1B of the Newspapers
Registration (Amendment) Act 1971 and section 3 (2)
of the Newspaper Surety Ordinance (Amendment)
Act 1971 were ultra vires the powers of the Antiguan
legislature as repugnant to section 10 of the
Constitution. The appellants, the Attorney-General
and the Minister of Home Affairs, took a preliminary
objection that the respondent had no locus standi
because the words 'any person' in section 15 (1) of
the Constitution related only to natural persons. The
[1976] A.C. 16 FOR EDUCATIONAL USE ONLY
1975 WL 44919 (Privy Council), [1976] A.C. 16, [1975] 3 All E.R. 81, [1975] 3 W.L.R. 232, (1975) 119 S.J. 528
(Cite as: [1976] A.C. 16)
trial judge overruled the preliminary objection and
granted the declarations sought. The Court of Appeal
affirmed the judgment and order of the trial judge.
FN3 Antigua Constitution Order 1967, Sch. 2, s. 1:
see post, p. 26B-D. S. 10: see post, pp. 29G - 30B. S.
15: see post, p. 24E-F.
On appeal by the appellants to the Judicial
Committee: -
Held:
(1) that there was nothing in the context of the
Constitution to exclude artificial persons in so far as
they were capable of enjoying the fundamental rights
and freedoms protected by the Constitution; that 'any
person' in section 15 included a body corporate and,
accordingly, the respondent was entitled to apply to
the High Court for redress under the section and the
appellants' preliminary objection failed (post, pp.
24H - 25C, 29B).
Olivier v. Buttigieg [1967] 1 A.C. 115, P.C. applied.
(2) That it was to be presumed unless the contrary
was proved that the licence fee imposed by section
1B of the Newspapers Registration (Amendment) Act
1971 was imposed as a means of raising revenue for
the purposes set out in section 10 of the Constitution;
that, since that presumption had not been rebutted
and the licence fee was not excessive or of such a
character as to lead to the conclusion that section 1B
had not been enacted to raise revenue but for some
other purpose, the imposition of the fee was not
contrary to the Constitution (post, p. 33A-B).
Quaere. Whether the requirement in section 1B to
obtain a licence from the Secretary to the Cabinet
contravened the Constitution (post, p. 30G).
But (3) allowing the appeal, that section 3 (2) of the
Act had been enacted for the protection of the
reputation of other persons within the meaning of
section 10 (2) (a) (ii) of the Constitution and was to
ensure that the individual's right of action for libel
was not a mere right without the prospect of
compensation suffered by him for libellous
statements published in the newspaper; that the
legislature in increasing the amount required by the
Ordinance of 1909 must be presumed to have fixed
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Page 3
an amount reasonably required and, since that
presumption had not been rebutted, the subsection
was not to be construed as contravening the
Constitution (post, p. 34D-G).
Per curiam.'May' in the proviso to section 3 (2) of the
Newspaper Surety Ordinance (Amendment) Act 1971
was mandatory and the Minister, if satisfied with the
sufficiency of *18 the security offered, had to waive
the requirement that the newspaper must deposit
$10,000 with the Accountant General (post, p. 33F-
G).
Judgment of the Court of Appeal of the West Indies
Associated States Supreme Court (Antigua) reversed.
The following cases are referred to in the judgment:
Australasian Temperance and General Mutual Life
Assurance Society Ltd. v. Howe (1922) 31 C.L.R.
290.
Camacho and Sons Ltd. v. Collector of Customs
(1971) 18 W.I.R. 159.
Collymore v. Attorney-General (1967) 12 W.I.R. 5.
Grosjean v. American Press Co. Inc. (1936) 297 U.S.
233.
Leske v. S. A. Real Estate Investment Co. Ltd.
(1930) 45 C.L.R. 22.
Murdock v. Pennsylvania (City of Jeannette) (1943)
319 U.S. 105.
National & Grindlays Bank Ltd. v. Kentiles Ltd.
[1966] 1 W.L.R. 348, P.C.
Olivier v. Buttigieg [1967] 1 A.C. 115; [1966] 3
W.L.R. 310; [1966] 2 All E.R. 459, P.C.
Wheeling Steel Corporation v. Glander (1949) 337
U.S. 562.
The following additional cases were cited in
argument:
Ashwander v. Tennessee Valley Authority (1936) 297
[1976] A.C. 16 FOR EDUCATIONAL USE ONLY
1975 WL 44919 (Privy Council), [1976] A.C. 16, [1975] 3 All E.R. 81, [1975] 3 W.L.R. 232, (1975) 119 S.J. 528
(Cite as: [1976] A.C. 16)
U.S. 288.
Attorney-General v. Prince Ernest Augustus of
Hanover [1957] A.C. 436; [1957] 2 W.L.R. 1; [1957]
1 All E.R. 49, H.L.(E.).
Bahamas International Trust Co. Ltd. v. Threadgold
[1974] 1 W.L.R. 1514; [1974] 3 All E.R. 428; [1974]
3 All E.R. 881, C.A. and H.L.(E.).
Bazie v. Attorney-General (1971) 18 W.I.R. 113.
Covington v. Sandford (1896) 164 U.S. 578; 17
S.Ct.R. 198.
Francis v. Chief of Police (1970) 15 W.I.R. 1; [1973]
A.C. 761; [1973] 2 W.L.R. 505; [1973] 2 All E.R.
251, P.C.
Gopalan v. State of Madras [1950] S.C.R. 88.
Great Northern Railway Co. v. Great Central
Railway Co. (1899) 10 Railway and Canal Traffic
Cases 266.
Hague v. Committee for Industrial Organisation
(1939) 307 U.S. 496.
Law Society v. United Service Bureau Ltd. [1934] 1
K.B. 343.
Northwestern Life Insurance Co. v. Riggs (1906) 203
U.S. 243; (1906) 27 S.Ct.R. 126.
Pharmaceutical Society v. London and Provincial
Supply Association Ltd. (1880) 5 App.Cas. 857, H.L.
(E.).
Shah Vershi Devshi & Co. Ltd. v. Transport
Licensing Board [1971] E.A. 289.
Sin Poh Amalgamated (H.K.) Ltd. v. Attorney-
General of Hong Kong [1965] 1 W.L.R. 62; [1965] 1
All E.R. 225, P.C.
Smyth v. Ames (1898) 169 U.S. 466; 18 S.Ct.R. 418.
Waterside Workers' Federation of Australia v.
Commonwealth Steamship Owners' Association
© 2008 Thomson Reuters/West. No Claim to Orig. US Gov. Works.
Page 4
(1920) 28 C.L.R. 209.
West Virginia State Board of Education v. Barnette
(1943) 319 U.S. 624.
Western Turf Association v. Greenberg (1907) 204
U.S. 359; 27 S.Ct.R. 384.
Wills v. Tozer (1904) 20 T.L.R. 700.
APPEAL (No. 9 of 1974) from a judgment (June 13,
1973) of the Court of Appeal of the West Indies
Associated States Supreme Court (Antigua) (Lewis
C.J. (ag.) and St. Bernard J.A.; Peterkin J.A. (ag.)
dissenting), dismissing an appeal by the appellants,
the Attorney-General and the Minister *19 of Home
Affairs, Antigua, against a preliminary ruling and
judgment of the High Court of Antigua (Louisy J.)
whereby the respondent, Antigua Times Ltd., was
granted declarations that the Newspapers Registration
(Amendment) Act 1971 (No. 8 of 1971) and the
Newspaper Surety Ordinance (Amendment) Act 1971
(No. 9 of 1971) were repugnant to section 10 (1) of
the Antigua Constitution Order 1967 and were ultra
vires the powers of the Antiguan legislature and void.
Sir Lionel Luckhoo Q.C., Harvey Da Costa Q.C. and
Julian Priest (all of the Antiguan Bar) for the
appellants. [On the preliminary issue as to whether
the respondent was a 'person' under section 15 (1) of
the Constitution entitled to apply to the High Court
for redress]. The respondent applied to the High
Court for redress under section 15 (1) of the
Constitution which permits application for redress if
any person alleges that any of the provisions of
sections 2 to 14 'has been, or is being' contravened. It
does not include 'or is likely to be' contravened. The
respondent is not a person within the meaning of
'person' in section 15 (1), which applies only to
natural persons, and therefore not entitled to invoke
its provisions. The word 'person' in a statute may
mean a natural or an artificial person, but the context
in which it is used may show that it means only a
natural person or only an artificial person. To
ascertain the meaning of 'person' in section 15 (1) it is
necessary also to look at sections 1 and 10. The
context in which it is used shows that 'person' is
intended to refer only to natural persons. Section 10
refers only to a natural person capable of enjoying all
the freedoms as the rights therein set out cannot be
enjoyed by a corporation. The object is clearly to
[1976] A.C. 16 FOR EDUCATIONAL USE ONLY
1975 WL 44919 (Privy Council), [1976] A.C. 16, [1975] 3 All E.R. 81, [1975] 3 W.L.R. 232, (1975) 119 S.J. 528
(Cite as: [1976] A.C. 16)
provide for the rights and freedoms of individuals.
Section 1 is referable only to individuals having
regard to the references made to 'whatever his race'
and 'private or family life' which can refer only to an
individual. [Reference was made to Law Society v.
United Service Bureau Ltd. [1934] 1 K.B. 343;
Pharmaceutical Society v. London and Provincial
Supply Association Ltd. (1880) 5 App.Cas. 857; Sin
Poh Amalgamated (H.K.) Ltd. v. Attorney-General of
Hong Kong [1965] 1 W.L.R. 62; Olivier v. Buttigieg
[1967] 1 A.C. 115; Gopalan v. State of Madras [1950]
S.C.R. 88; and Gaines Ezejiofor, Protection of
Human Rights under the Law (1964), pp. 267, 269.].
Harvey Da Costa Q.C. following. Chapter I of the
Constitution is a bill of rights pertaining to the
protection of the fundamental rights and freedoms of
the human individual. It was intended as a charter for
natural persons only. [Reference was made to Basu's
Commentary on the Constitution of India, 4th ed.
(1961), vol. 4, p. 104, p. 577; Craies on Statute Law,
7th ed. (1971), pp. 98- 101, 159-160; Attorney-
General v. Prince Ernest Augustus of Hanover [1957]
A.C. 436; Collymore v. Attorney-General [1970]
A.C. 538; Bazie v. Attorney-General (1971) 18
W.I.R. 113; Sin Poh Amalgamated (H.K.) Ltd. v.
Attorney-General of Hong Kong [1965] 1 W.L.R. 62;
Grosjean v. American Press Co. Inc. (1936) 297 U.S.
233; Covington v. Sandford (1896) 164 U.S. 578;
Smyth v. Ames (1898) 169 U.S. 466; Western Turf
Association v. Greenberg (1907) 204 U.S. 359;
Northwestern Life Insurance Co. v. Riggs (1906) 203
U.S. 243; Hague v. Committee for Industrial
Organisation (1939) 307U.S. 496 *20 ; Wheeling
Steel Corporation v. Glander (1949) 337 U.S. 562;
Francis v. Chief of Police [1973] A.C. 761; Wills v.
Tozer (1904) 20 T.L.R. 700; Great Northern Railway
Co. v. Great Central Railway Co. (1899) 10 Railway
and Canal Traffic Cases 266 and Australasian
Temperance and General Mutual Life Assurance
Society Ltd. v. Howe (1922) 31 C.L.R. 290.] The
burden of proof that the respondent is entitled to the
rights claimed rests with the respondent: see
Camacho and Sons Ltd. v. Collector of Customs
(1971) 18 W.I.R. 159.
J. G. Le Quesne Q.C., Rowan Henry Q.C. and
Cosmos Phillips Q.C. (both of the Antiguan Bar) and
George Newman for the respondent. Several
provisions in Chapter I of the Constitution are
inapplicable to artificial persons, but that raises no
© 2008 Thomson Reuters/West. No Claim to Orig. US Gov. Works.
Page 5
difficulty. The Interpretation Act 1889, which is
applied to the Constitution by section 115 (15) of the
Constitution, provides that 'person' shall, unless the
contrary intention appears, include any body
corporate or unincorporate. No contrary intention
appears from the reading of Chapter I that 'person' in
section 15 (1) shall not include an artificial person.
Although Chapter I of the Constitution is based on
the European Convention for the Protection of
Human Rights and Fundamental Freedoms, it is the
enactment itself which must be read to see what
rights are protected. [Reference was made to Olivier
v. Buttigieg [1967] 1 A.C. 115.] There is no difficulty
in reading Chapter I of the Constitution as indicating
that some of the freedoms are appropriate to natural
persons only and some to natural and artificial
persons. Had the intention been that 'person' referred
to natural persons only the draftsman could have
expressed that clearly. Section 10 is applicable to
corporations as well as to natural persons. [Reference
was made to Leske v. S.A. Real Estate Investment
Co. Ltd. (1930) 45 C.L.R. 22 and Australasian
Temperance and General Mutual Life Assurance
Society Ltd. v. Howe, 31 C.L.R. 290.] If the
appellants' contention were right many anomalies
would arise: see National & Grindlays Bank Ltd. v.
Kentiles Ltd. [1966] 1 W.L.R. 348.
If a corporation has no redress under section 15 (1)
of the Constitution it would have no redress at all. as
no other remedy would be available. On the
appellants' construction a natural person's rights
would be curtailed because if he formed a company
to carry on his business he would lose the protection
of the Constitution. On the appellants' construction
section 10 would draw an inexplicable distinction
between one proprietor and another or between a
newspaper company and its editor. An individual
would not always be in a position to claim redress in
place of a company as the contravention must be ' in
relation to him.' In Shah Vershi Devshi & Co. Ltd. v.
Transport Licensing Board [1971] E.A. 289, which
was concerned with the Kenya Constitution (similar
to but not identical with the Antigua Constitution), it
was held that a company is entitled to all the rights
and freedoms under the Constitution which it is
capable of enjoying.
The European Convention for the Protection of
Human Rights and Fundamental Freedoms on which
Chapter I of the Constitution is based was itself
[1976] A.C. 16 FOR EDUCATIONAL USE ONLY
1975 WL 44919 (Privy Council), [1976] A.C. 16, [1975] 3 All E.R. 81, [1975] 3 W.L.R. 232, (1975) 119 S.J. 528
(Cite as: [1976] A.C. 16)
largely based on the Universal Declaration of
Human Rights, adopted by the United Nations on
December 10, 1948 (U.N. doc. A/811), and from its
inception it was accepted that although it was mainly
concerned with human rights, a corporation was also
entitled to protection. *21 [Reference was made to
Gaines Ezejiofor, Protection of Human Rights under
the Law (1964), and Ian Brownlie, Basic Documents
on Human Rights (1971).]
The American cases to which the appellants referred
are not of great value as they deal with the American
Constitution which is very different, but in the proper
context 'person' can include a corporation.
Harvey Da Costa Q.C. in reply. There would be no
difficulty for a natural person to obtain the protection
of the Constitution in connection with a newspaper.
There would always be some human being who could
take proceedings under section 15 (1) of the
Constitution, but an artificial person cannot.
[LORD WILBERFORCE announced that the Board
would hear argument on the merits of the appeal.]
Sir Lionel Luckhoo Q.C., Harvey Da Costa Q.C. and
Julian Priest for the appellants. The respondent
published its newspaper 15 days before the
commencement of the Newspapers Registration
(Amendment) Act 1971, and therefore did not have to
apply for a licence. The only requirement was to pay
the prescribed fee. On payment of the fee the
respondent would be deemed to have been granted a
licence. There was no necessity to apply to the
Cabinet for a licence and therefore the effect of the
discretion of the Cabinet to decide what person
should and what person should not obtain a licence to
publish a newspaper did not arise. The requirement to
obtain a licence was not an infringement of section
10 of the Constitution, but even if such requirement
did infringe section 10 of the Constitution there was
no such infringement in relation to the respondent.
The payment of the licence fee did not constitute a
hindrance. Payment of such a licence fee is general
practice in most of the West Indian islands as a means
of raising revenue. The amount of $600 for the
annual licence was not excessive and was a
reasonable requirement as an annual tax.
The requirement of a deposit of $10,000 (or
sufficient security) by section 3 (2) of the Newspaper
© 2008 Thomson Reuters/West. No Claim to Orig. US Gov. Works.
Page 6
Surety Ordinance (Amendment) Act 1971 had as its
object the purpose of protecting the reputations,
rights and freedoms of other persons under section 10
(2) (a) of the Constitution and was reasonably
required and justified under that section.
The provisions in both Acts were reasonably
required and justified by section 10 (2) of the
Constitution. Legislation must be presumed to be
constitutional and the presumption of constitutional
validity in favour of the Acts in question was not
displaced by the respondent. [Reference was made to
Basu's Commentary on the Constitution of India, 5th
ed. (1965), vol. 1, p. 199 and Waterside Workers'
Federation of Australia v. Commonwealth Steamship
Owners' Association (1922) 28 C.L.R. 209.] The
respondent failed to prove beyond reasonable doubt
that the Acts in question contravened section 10 of
the Constitution.
At the trial counsel for all parties agreed certain
propositions of law in order to limit the issues
between the parties. The only live issues left were (a)
whether the licence fee of $600 was reasonable, on
the basis that if reasonable it was constitutional but if
unreasonable it was unconstitutional, and (b) whether
the ministerial discretion invalidated the Acts. The
trial judge departed from the agreed propositions and
gave judgment *22 on the basis that the agreed
propositions were incorrect. The Court of Appeal
held that the judge was entitled to reach his own
decision on the propositions. It was not open to the
court to arrive at findings which were not consistent
with the accepted propositions agreed upon by all the
parties. The right to levy an annual tax was not before
the court, only the question whether the amount was
reasonable. Counsel were entitled to seek to limit the
issues where the difference was on a point of
construction to narrow the dispute: see Bahamas
International Trust Co. Ltd. v. Threadgold [1974] 1
W.L.R. 1514.
Harvey Da Costa Q.C. following. The regulating
machinery under which the appellants acted imposed
no fetter or hindrance on the respondent's
constitutional rights. The Constitution itself by
section 10 (2) provided the justification for the
imposition of any restrictions.
The only issue which arose under the Newspaper
Surety Ordinance (Amendment) Act was with regard
[1976] A.C. 16 FOR EDUCATIONAL USE ONLY
1975 WL 44919 (Privy Council), [1976] A.C. 16, [1975] 3 All E.R. 81, [1975] 3 W.L.R. 232, (1975) 119 S.J. 528
(Cite as: [1976] A.C. 16)
to the constitutional validity of the proviso to section
3 (2) which empowered the Minister to waive the
requirement of a deposit on being satisfied with the
sufficiency of the security in the form of an insurance
policy or bank guarantee. That proviso did not give
the minister an unfettered or unregulated discretion.
The exercise of a discretion by a minister must be
bona fide for the achievement of the object of the
legislation conferring it and made within the confines
of legality and in accordance with the dictates of
natural justice. It was clearly the duty of the Minister
to achieve the object of the statute by a bona fide
exercise of his discretion and the proviso was not
unconstitutional.
J. G. Le Quesne Q.C., Rowan Henry Q.C., Cosmos
Phillips Q.C. and George Newman for the-
respondent. The agreed propositions purported to
impose upon the court propositions of law which the
parties were not entitled to do. [Reference was made
to Bahamas International Trust Co. Ltd. v.
Threadgold [1974] 1 W.L.R. 1514.] The judge rightly
refused to be bound by the propositions as it was his
duty to decide the issues in the pleadings on what he
held to be the law.
Both of the Acts against which complaint is made
were passed at the same time and were part of a
package. It appears from them that the Government
was seeking to exercise control over the press whose
freedom of expression was guaranteed by the
Constitution.
Act No. 8 of 1971 contravened section 10 (1) of the
Constitution because (a) it restricted publication of
the newspaper purely at the discretion of the Cabinet
and (b) it submitted the right to publish to the
condition of payment of a fee. The provision for the
grant of a licence by the Cabinet is itself the strongest
indication that there was nothing automatic in the
granting of a lic'ence but that the Cabinet could
discriminate. Simply to say that the fee was a tax for
the raising of revenue does not take it outside the
provisions of section 10 of the Constitution. Whether
it is called a tax or not, the requirement to pay a sum
of money before the respondent could operate a
newspaper was a hindrance to its enjoyment of the
freedom of expression. The distinction is between a
law to be obeyed in the carrying on of a business and
one which imposes a condition for the carrying on of
a business. In Murdock v. Pennsylvania (City of
© 2008 Thomson Reuters/West. No Claim to Orig. US Gov. Works.
Page 7
Jeannette) (1942) 319 U.S. 105 Douglas J. stated: 'A
state may not impose a charge *23 for the enjoyment
of a right granted by the Federal Constitution.' The
general practice in the Caribbean has nothing
whatever to do with the matter. The law was bad
because of the condition demanded for the exercise
of a constitutional right. The proviso to section 1B (1)
of the Act merely gave the newspaper the right to
publish if it was publishing 15 days before the
commencement of the Act and if it paid the required
fee. That requirement was still something which the
Constitution did not permit. Even if the requirement
of the fee was lawful, the requirement of a licence
was not. That requirement is unconstitutional even if
the newspaper is deemed to have been granted a
licence. The Constitution gives the right to publish
without a licence. Before the amending Act
newspapers were required to register under c. 318,
but there was no power to refuse registration. The
amending Act added power to refuse a licence and so
power to suppress a newspaper. That was in addition
to the requirement for the payment of a fee and was
in contravention of section 10 (2) (a) of the
Constitution. Furthermore, a newspaper does not fall
within the class specified in section 10 (2) (a) (ii) for
which regulating laws may be made as the class
specified is concerned with the actual technical
means of carrying messages and a newspaper cannot
be included in 'other means of communication.'
[Reference was made to Francis v. Chief of Police
[1973] A.C. 761.]
Act No. 9 of 1971 is unconstitutional because the
requirement to deposit $10,000 is a hindrance to the
enjoyment of freedom of expression. There was no
material on which the court could find that it was
reasonably required. It was a question of fact to be
decided on the evidence whether the requirement was
a hindrance. The deposit of $10,000 plus the $600
annual licence fee together were enough to put the
newspaper out of business. There was no evidence
that the deposit of $10,000 was a reasonable
requirement for the purpose of protecting reputations
under section 10 (2) of the Constitution. The amount
of the deposit must be justified. The proviso to
section 3 (2) of the Act gave an uncontrolled
discretion to the minister because there was no
guidance as to how the discretion should be
exercised. [Reference was made to Francis v. Chief of
Police [1973] A.C. 761.]
[1976] A.C. 16 FOR EDUCATIONAL USE ONLY
1975 WL 44919 (Privy Council), [1976] A.C. 16, [1975] 3 All E.R. 81, [1975] 3 W.L.R. 232, (1975) 119 S.J. 528
(Cite as: [1976] A.C. 16)
Harvey Da Costa Q.C. in reply. The proposition in
Murdock v. Pennsylvania (City of Jeanette), 319 U.S.
105, that a state may not impose a charge for the
enjoyment of a right granted by the Federal
Constitution was accepted only by a razor-edged
majority. The American cases on which the trial
judge in the present case mainly based his decision
are very uncertain guides as to the construction of the
Antigua Constitution.
The possibility of misuse of a discretion does not
make a tax unconstitutional. The question of what
amounts to a hindrance is a question of degree. The
rights of the respondent only are to be considered and
the court should not adjudicate further than required
by the claimant's claim: see Ashwander v. Tennessee
Valley Authority (1936) 297 U.S. 288.
The amending Act No. 9 of 1971 merely increased
the amount of surety required under the principal Act,
c. 319, which first imposed the necessity for a bond
for $960 as early as 1909. The principle was never
challenged in the courts below. Must Parliament wait
until a situation *24 arises making it necessary to
pass the Act, or can it legislate for a situation that is
likely to arise? The prima facie honesty of the
legislature must be accepted that the legislation was
reasonably required. The legislature must be the
judge of what is best for the community in the
making of laws for the good government of the
people and its power should not be cut down except
under some explicit provision in the Constitution: see
West Virginia State Board of Education v. Barnette
(1943) 319 U.S. 624. Both Acts, Nos. 8 and 9 of
1971, were covered by section 10 (2) of the
Constitution and were reasonably required.
Cur. adv. vult.
May 19. The judgment of their Lordships was
delivered by
LORD FRASER OF TULLYBELTON.
The respondent is a company registered in Antigua.
A preliminary objection was taken on behalf of the
appellants in both the courts below, and repeated
before this Board, that the respondent was not
entitled to initiate these proceedings under section 15
of the Constitution of Antigua, on the ground that it
© 2008 Thomson Reuters/West. No Claim to Orig. US Gov. Works.
Page 8
was not a 'person' within the meaning of that section.
The objection was repelled by Louisy J. in the High
Court of Antigua, and his decision on this point was
upheld by a majority of the Court of Appeal of the
West Indies Associated States. Peterkin J.A. dissented
on this point.
The respondent was the publisher of a bi-weekly
newspaper called the 'Antigua Times.' Publication
began in December 1970 and ended in December
1971 as a consequence of the passing by the
Parliament of Antigua of two Acts dealing with
newspapers. The respondent complains that these
Acts were unconstitutional and it applied to the High
Court of Antigua for redress under section 15 of the
Constitution. Section 15 (1) provides:
'If any person alleges that any of the provisions of
sections 2 to 14 (inclusive) of this Constitution has
been, or is being, contravened in relation to him,
then, without prejudice to any other action with
respect to the same matter which is lawfully
available, that person may apply to the High Court
for redress.'
The appellants contend that the word 'person'
occurring twice in that subsection refers only to a
natural person. The respondent contends that the
word includes also an artificial or legal person such
as itself. The Interpretation Act 1889, which is
applied to the Constitution by section 115 (15) of the
Constitution, provides by section 19: '... the
expression ' person' shall, unless the contrary
intention appears, include any body of persons
corporate or unincorporate....' It is therefore
necessary to consider the context in which the word
'person' occurs here.
Section 15 is in chapter I of the Constitution, which
is headed ' Protection of Fundamental Rights and
Freedoms.' The arrangement and wording of the
chapter evidently owe much to the European
Convention for the Protection of Human Rights and
Fundamental Freedoms signed by certain members of
the Council for Europe in 1950. The European
Convention was itself largely based on the Universal
Declaration of Human Rights *25 adopted by the
United Nations General Assembly in 1948. The
Universal Declaration, as its title suggests, is
concerned mainly, if not exclusively, with human
rights, that is with rights of individual human beings,
but the European Convention appears to apply also to
[1976] A.C. 16 FOR EDUCATIONAL USE ONLY
1975 WL 44919 (Privy Council), [1976] A.C. 16, [1975] 3 All E.R. 81, [1975] 3 W.L.R. 232, (1975) 119 S.J. 528
(Cite as: [1976] A.C. 16)
artificial persons, at least in some of its articles. For
example article 25 provides that the Commission may
receive petitions:
'from any person, non-governmental organisation
or group of individuals claiming to be the victim of a
violation by one of the High Contracting Parties of
the rights set forth in this Convention.'
and article 1 of the first protocol to the Convention
refers to 'every natural or legal person.' With that
ancestry it would not be surprising if chapter I of the
Constitution of Antigua were to apply to artificial as
well as to natural persons, and its heading, already
quoted, which refers to ' fundamental' and not to
'human' rights and freedoms, gives no indication that
it is limited to natural persons.
Before turning to the words of chapter I itself there is
one other general matter which their Lordships
consider relevant. The Constitution of Antigua was
brought into effect by Order in Council in 1967.
Having regard to the important place in the economic
life of society occupied by corporate bodies, it would
seem natural for such a modern Constitution, dealing
with, inter alia, rights to property, to use the word
'person' to include corporations. As long ago as 1922
a view to that effect was expressed by Isaacs J. in
Australasian Temperance and General Mutual Life
Assurance Society Ltd. v. Howe (1922) 31 C.L.R.
290, 301, and in 1930 in Leske v. S.A. Real Estate
Investment Co. Ltd. (1930) 45 C.L.R. 22, 25 Rich
and Dixon JJ. said:
'The time has passed for supposing that the
legislature would use the word 'person' only to
signify a natural person in dealing with a class of
business in which the utility of the proprietary
company has long been made manifest.'
That statement was made with reference to an Act
dealing with contracts for the sale of land but it is
also applicable, though with rather less force, to a
Constitution such as that of Antigua which includes
provisions safeguarding the ownership of property.
The attention of their Lordships was drawn to a
number of decisions of the Supreme Court of the
United States in which the meaning of the word
'person' in the fourteenth amendment to the American
Constitution was considered. That amendment
provides inter alia that no state shall
'deprive any person of life, liberty, or property,
without due process of law; nor deny to any person
within its jurisdiction the equal protection of the
laws.'
© 2008 Thomson Reuters/West. No Claim to Orig. US Gov. Works.
Page 9
In Grosjean v. American Press Co. Inc. (1936) 297
U.S. 233, 244, Sutherland J. delivering the opinion of
the court said:
'But a corporation is a 'person' within the meaning
of the equal protection and due process of law
clauses, which are the clauses involved here.'
*26 and he referred to authority for that proposition.
In Wheeling Steel Corporation v. Glander (1949) 337
U.S. 562 Douglas and Black JJ. (in a dissenting
opinion) said that it had been implicit in all decisions
of the Supreme Court since 1886 that a corporation is
a 'person' within the meaning of the equal protection
clause of the fourteenth amendment. These Australian
and American decisions, although of course not
decisive of the present question, indicate the
approach taken to similar questions in those countries
in recent times.
Chapter I of the Constitution of Antigua consists of
sections 1 to 16 inclusive. Section 1 is as follows:
'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 and for the public interest, to each and all of
the following, namely: - (a) life, liberty, security of
the person, the enjoyment of property and the
protection of the law; (b) freedom of conscience, of
expression and of peaceful assembly and association;
and (c) respect for his private and family life, the
subsequent provisions of this Chapter shall have
effect for the purpose of affording protection to the
aforesaid rights and freedoms, subject to such
limitations of that protection as are contained in those
provisions, being limitations designed to ensure that
the enjoyment the said rights and freedoms by any
individual does not prejudice the rights and freedoms
of others or the public interest.'
That section is in very nearly the same words as
section 5 of the Constitution of Malta which was
considered by this Board in Olivier v. Buttigieg
[1967] 1 A.C. 115, and the analysis of the latter
section made in the judgment of the Board delivered
by Lord Morris of Borth-y-Gest is equally applicable
to section 1 of the Antigua Constitution. The
following passage appears at pp. 128-129:
'It is to be noted that the section begins with the
word 'Whereas.' Though the section must be given
such declaratory force as it independently possesses,
[1976] A.C. 16 FOR EDUCATIONAL USE ONLY
1975 WL 44919 (Privy Council), [1976] A.C. 16, [1975] 3 All E.R. 81, [1975] 3 W.L.R. 232, (1975) 119 S.J. 528
(Cite as: [1976] A.C. 16)
it would appear in the main to be of the nature of a
preamble. It is an introduction to and in a sense a
prefatory or explanatory note in regard to the sections
which are to follow. It is a declaration of entitlement -
coupled however with a declaration that though
'every person in Malta' is entitled to the ' fundamental
rights and freedoms of the individual' as specified,
yet such entitlement is 'subject to respect for the
rights and freedoms of others and for the public
interest.' The section appears to proceed by way of
explanation of the scheme of the succeeding
sections.... The succeeding sections show that the
promised scheme was followed.'
The reference to 'race, place of origin, political
opinions, colour, creed or sex' indicates that the
section was referring primarily to human or natural
persons, but there is nothing to exclude artificial
persons so far as they are capable of enjoying the
fundamental rights and freedoms. Counsel for the
appellants argued that section 1 was the master
section of the chapter, that the subsequent provisions
of the chapter were limited to having *27 effect for
protecting 'the aforesaid rights and freedoms,' that is,
the rights and freedoms specified in paragraphs (a),
(b) and (c) of the section, and that those rights and
freedoms belonged only to human persons. Their
Lordships cannot agree that the rights and freedoms
are limited in that way. The nature and extent of the
rights and freedoms protected must depend upon the
provisions of the sections respectively protecting
them. Some of these sections clearly cannot apply to
corporations but others can and, in the opinion of
their Lordships, do. On this matter their Lordships
cannot do better than to quote the following passage
from the judgment of Lewis C.J. in the court below:
'It is obvious that there are certain rights and
freedoms in chapter 1 of the Constitution which from
their very nature cannot be enjoyed by a corporation,
e.g. the right to life specified in section 2, the right to
personal liberty specified in section 3, and the right to
be protected from inhuman treatment mentioned in
section 5; but there is nothing in principle which
prevents a corporation from enjoying the rights
relating to the compulsory acquisition of property
(section 6), the securing of protection of the law
(section 8) and protection from discrimination on
various grounds specified in section 12. It would not
be an affront to common sense or reason to contend
that if a corporation's property were compulsorily
acquired (section 6) the corporation should, in like
© 2008 Thomson Reuters/West. No Claim to Orig. US Gov. Works.
Page 10
manner as a natural person, be entitled to
compensation. Nor could it be convincingly
maintained that a corporation, like a human being, if
charged with a criminal offence would not be entitled
to the right of a fair hearing in accordance with the
fundamental principles of justice as prescribed in
section 8. As regards to the right to protection from
discriminatory treatment on grounds of race, place of
origin, political opinion, colour or creed (section 12),
this court delivered a judgment on December 13,
1971, which established the principle that a
corporation was entitled to enforce the protective
provisions of section 15 of the Constitution in
circumstances where it was found to have been
treated in a discriminatory manner contrary to section
12 (2) and (3) by reason of political opinions of its
directors. The case in question was Camacho and
Sons Ltd. v. Collector of Customs (1971) 18 W.I.R.
159.'
The Chief Justice went on to explain the facts in
Camacho's case and he concluded as follows:
'It was contended by counsel for the appellants
that the point which is here being discussed did not
arise and was not argued in Camacho's case. I agree,
but the Court of Appeal assumed (and I consider
rightly) that the point could not be successfully
contested. It would be a scandalous defect in the law
if a company could be treated in the manner in which
the company in Camacho's case was treated and the
law could not afford it any redress.'
Their Lordships agree with the opinion expressed by
the Chief Justice and they have no reason to doubt
that the decision in Camacho's case was correct.
Their Lordships also agree with the opinion of
Wooding C.J. in Collymore v. Attorney-General
(1967) 12 W.I.R. 5, 20 who said with *28 reference
to the Constitution of Trinidad and Tobago that it was
intended to protect natural persons primarily but that
'Some of the particular prohibitions are undoubtedly
apt to protect artificial legal entities also,...'
The section of the Antigua Constitution which in the
opinion of their Lordships is most clearly applicable
to corporate bodies is section 6, protection against
compulsory acquisition of property. The opening
words of subsection (1) are as follows:
'No property of any description shall be
compulsorily taken possession of, and no interest in
or rights over property of any description shall be
compulsorily acquired, except...'
The exception refers to payment of compensation.
[1976] A.C. 16 FOR EDUCATIONAL USE ONLY
1975 WL 44919 (Privy Council), [1976] A.C. 16, [1975] 3 All E.R. 81, [1975] 3 W.L.R. 232, (1975) 119 S.J. 528
(Cite as: [1976] A.C. 16)
The application of that section to a body corporate
could be excluded only by reading into it words such
as 'belonging to a natural person' after the words 'no
property of any description,' and there appears to be
no good reason for doing that. Moreover subsection
(2) (g) of section 6 indicates in their Lordships'
opinion a positive intention to include bodies
corporate. Subsection (2) provides that nothing in the
section shall be construed as affecting the making or
operation of any law in so far as it provides for taking
possession or acquisition of property for various
purposes there specified, including '(g) by way of the
vesting administration of... the property of... bodies
corporate or unincorporate in the course of being
wound up;...' The inference is that, but for this saving
clause, the property of a body corporate in the course
of being wound up would, or at least might, have
been affected by the section. A similar inference
arises from subsection (4) which saves any law for
the compulsory taking possession or compulsory
acquisition in the public interest of any property:
'held by a body corporate which is established for
public purposes by any law and in which no moneys
have been invested other than moneys provided by
Parliament...'
Section 10 (the full terms of which are set out
hereafter) also deserves special mention. Subsection
(1) provides for protection of freedom of expression,
which is to include the freedom to receive and impart
ideas and information without interference.
Subsection (2) provides that nothing in any law shall
be held inconsistent with or in contravention of the
section to the extent that the law in question makes
provision that is reasonably required for (a) (ii) inter
alia 'regulating telephony, telegraphy, posts, wireless
broadcasting, television or other means of
communication,...' These are fields of activity in
which corporations are commonly engaged and the
saving would lose much of its practical value if
corporations were not persons who could avail
themselves of its protection.
A further consideration is that, if bodies corporate
were not entitled to use the machinery of section 15,
many anomalies would arise. This is a relevant
consideration: National & Grindlays Bank Ltd. v.
Kentiles Ltd. [1966] 1 W.L.R. 348. For example a
natural person would lose the protection of the
Constitution for his business if he formed a company
to take it over. An example nearer to the present case
is that section 10 (freedom of expression) would, on
© 2008 Thomson Reuters/West. No Claim to Orig. US Gov. Works.
Page 11
the appellants' construction, draw an unexplained and
irrational distinction between newspaper proprietors
who *29 were natural persons and those who were
bodies corporate. Similarly section 11 (freedom of
assembly and association) which expressly includes
the right to 'belong to trade unions or other
associations for the protection of his interests' would
protect the right of a natural person to join a trade
association, but not that of a body corporate.
For these reasons their Lordships are of opinion that
the word 'person' in this Constitution includes
artificial legal persons and that the appellants'
preliminary objection fails.
The respondent in its statement of claim sought
declarations that section 1B of the Newspapers
Registration (Amendment) Act 1971, No. 8 of 1971
and section 3 (2) of the Newspaper Surety Ordinance
(Amendment) Act 1971, No. 9 of 1971, contravened
the provisions of chapter I of the Constitution and, in
particular, of section 10 thereof.
Its application to the High Court was made, as
already explained, under section 15 (1) of the
Constitution. To succeed, it had to show that one of
the provisions of sections 2 to 14 had been, or was
being, contravened in relation to it and it does not
suffice for it to establish that such a contravention
might occur in the future.
Section 1B, added by the Newspapers Registration
(Amendment) Act 1971, introduced two new
requirements with regard to newspapers into the law
of Antigua. Anyone who did not print or publish a
registered newspaper 15 days before the Act came
into force, could not lawfully publish a newspaper or
cause one to be published without a licence signed by
the Secretary to the Cabinet and unless he had paid a
licence fee of $600, the equivalent of £125. The
licence fee was payable annually.
Persons who printed or published a registered
newspaper 15 days before the commencement of the
Act, and who have paid the licence fee of $600, are,
the section provides, to be deemed to have been
granted a licence. As the respondent published its
newspaper 15 days before the Act commenced, it
would, if it had paid the licence fee of $600, have
been deemed to have been granted a licence.
[1976] A.C. 16 FOR EDUCATIONAL USE ONLY
1975 WL 44919 (Privy Council), [1976] A.C. 16, [1975] 3 All E.R. 81, [1975] 3 W.L.R. 232, (1975) 119 S.J. 528
(Cite as: [1976] A.C. 16)
The Newspapers Registration Act of 1883 (c. 318)
required the name of the newspaper, the place where
it was to be printed or published and the names and
addresses of the editor, printer, publisher and
proprietors to be registered before publication. No fee
was payable on registration.
Mr. Le Quesne on behalf of the respondent
contended that section 1B was unconstitutional in
two respects: first, because it subjected the right to
publish to the grant of a licence at the discretion of
the Cabinet, and secondly, because it made the
exercise of the right to publish subject to the annual
payment of $600. He contended that in these respects
section 1B contravened section 10 of the Constitution
which is in the following terms:
'(1) Except with his own consent, no person shall
be hindered in the enjoyment of his freedom of
expression, and for the purposes of this section the
said freedom includes the freedom to hold opinions
and to receive and impart ideas and information
without interference, and freedom from interference
with his correspondence and other means of
communication. (2) Nothing contained in or done
under the authority of any law shall be held to be
inconsistent with or in contravention *30 of this
section to the extent that the law in question makes
provision - (a) that is reasonably required - (i) in the
interests of defence, public safety, public order,
public morality or public health; or (ii) for the
purpose of protecting the reputations, rights and
freedoms of other persons, or the private lives of
persons concerned in legal proceedings, preventing
the disclosure of information received in confidence,
maintaining the authority and independence of the
courts, or regulating telephony, telegraphy, posts,
wireless broadcasting, television or other means of
communication, public exhibitions or public
entertainments; or (b) that imposes restrictions upon
public officers.'
If the grant of a licence signed by the Secretary to
the Cabinet to anyone who wished to publish a
newspaper or to cause one to be published was
automatic, then it could no more be contended that
the requirement of a licence was a hindrance to the
enjoyment of the right to freedom of expression than
that the requirement to register imposed by the
Newspapers Registration Act 1883 was such a
hindrance. The Secretary to the Cabinet when signing
© 2008 Thomson Reuters/West. No Claim to Orig. US Gov. Works.
Page 12
or refusing to sign a licence no doubt acts in
accordance with instructions he receives from the
Cabinet and section 1B leaves the Cabinet free to
discriminate between applicants for a licence as the
Cabinet thinks fit, granting a licence to one and
refusing it to another without having to give any
reason.
Section 12 (1) of the Constitution provides that, save
as provided in that section, 'no law shall make any
provision which is discriminatory either of itself or in
its effect.' This subsection does not apply to any law
so far as that law makes provision with respect to
persons who do not belong to Antigua. Section 1B,
though not discriminatory of itself, is so widely
drawn that it permits the Cabinet to discriminate not
only between persons who belong and persons who
do not belong to Antigua but also between persons
who belong to Antigua.
The respondent cannot complain that it was
discriminated against as it did not have to apply for a
licence, having published its paper 15 days before the
Act came into force. It cannot establish that the
imposition of the obligation to obtain a licence before
publishing a newspaper constitutes a contravention of
the Constitution which either has taken place or is
taking place in relation to it. The only part of section
1B which affected it was the requirement to pay $600
as the annual fee for the licence deemed on payment
of that sum to have been granted to it.
Their Lordships, while they recognise that the
answer to the question whether the requirement to
obtain a licence from the Secretary to the Cabinet
contravenes the Constitution is not free from
difficulty, involving consideration not only of section
10 (1) but also of section 10 (2) and other sections of
the Constitution, consider that on the facts of this
case the question is hypothetical and does not arise
for decision. They therefore express no opinion on it.
In relation to section 1B it remains to consider
whether the requirement of the payment of $600,
both by those who are granted licences and by those
who are deemed to have been granted licences,
amounts to a contravention of the Constitution.
*31 At the trial counsel agreed three propositions of
law and that agreement may have influenced the
evidence called at the trial. Despite this agreement, it
[1976] A.C. 16 FOR EDUCATIONAL USE ONLY
1975 WL 44919 (Privy Council), [1976] A.C. 16, [1975] 3 All E.R. 81, [1975] 3 W.L.R. 232, (1975) 119 S.J. 528
(Cite as: [1976] A.C. 16)
appears from the judgment of Lewis C.J. in the Court
of Appeal that counsel for the respondent there
submitted that it was incompetent for parties by
concessions or agreement to tie the hands of the court
in the determination of the question whether there
had been an infringement of the Constitution. Lewis
C.J. said that he completely agreed with that
submission. In their Lordships' view, a court which
has to decide a question of construction, whether it be
of a statute or of a Constitution, cannot be fettered in
the exercise of its judgment by any agreement
between counsel. In their view Louisy J., the trial
judge, was right to refuse to be bound by the three
agreed propositions of law.
The first related to the obtaining of a licence and as
the respondent did not have to obtain one, it is not
necessary to refer to it or to comment on it.
The second was:
'Any law is constitutional which provides for a fee
for registration of a newspaper, such fee being of a
moderate figure in keeping with the established
practice in the Caribbean.'
Louisy J. rejected this proposition and formulated
the following in lieu thereof:
'Any law which provides for a licence fee, the
nature of which falls within the taxing powers of the
legislature, is constitutional unless such law is so
arbitrary as to compel the conclusion that it does not
involve an exertion of the taxing power but
constitutes, in substance and effect, the direct
execution of a different and forbidden power.'
He held that section 1B did not fall within the taxing
powers of the legislature and was unconstitutional.
He based his conclusion on three American decisions
and cited the dictum of Douglas J. in Murdock v.
Pennsylvania (City of Jeannette) (1942) 319 U.S.
105, 113 that 'A state may not impose a charge for the
enjoyment of a right granted by the Federal
Constitution.' Lewis C.J. in the Court of Appeal also
cited this observation. He and St. Bernard J.A.
attached importance to the requirement that the
licence fees should be paid before publication, Lewis
C.J. regarding that as inhibitory 'because in effect
they prevent a newspaper... from coming into being at
all.' Peterkin J.A. dissented.
Section 10 (2) of the Constitution of Antigua,
© 2008 Thomson Reuters/West. No Claim to Orig. US Gov. Works.
Page 13
however, expressly provides that nothing contained in
or done under the authority of certain laws is to be
held to be inconsistent with or in contravention of the
section. If, therefore, section 1B is a law reasonably
required for one of the purposes specified in section
10 (2) (a), then, though its provisions could otherwise
have been regarded as a hindrance to the enjoyment
of freedom of expression, it is not to be treated, nor is
anything done under it to be treated, as contravening
the section.
One argument advanced was that section 1B was
reasonably required 'for the purpose of... regulating...
other means of communication': section 10 (2) (a)
(ii). It was contended that newspapers were other
means of communication. Those words also appear in
section 10 (1) and here it does not appear likely that
they were intended to cover newspapers. It would he
*32 unusual if the same set of words appearing in
consecutive subsections of a section bore different
meanings and, if section 10 (2) (a) (ii) had been
intended to include newspapers, it is indeed curious
that they were not specifically mentioned. It may be
that 'other means of communication' in that
subsection was intended to cover only other channels
of communication similar to those expressly
mentioned in the preceding words.
Their Lordships do not, however, find it necessary to
come to a conclusion on this for in their opinion the
imposition of the licence fee to be paid annually by
all publishers of newspapers was correctly regarded
by Louisy J. as a tax. Taxation is not referred to in
section 10. The only provisions of chapter I of the
Constitution that do so are section 6 (2) (a) and
section 12 (4) (d). Section 6 (2) (a) merely provides
that the taking of possession or acquisition of any
property, interest or right in satisfaction of any tax or
rate or due is not to be affected by the provisions of
that section which refer to the compulsory acquisition
of property; and section 12 (4) (d) enables the
government, any local authority and any body for
local purposes to discriminate in the imposition of
taxation or appropriation of revenue without
contravening the Constitution.
Revenue requires to be raised in the interests of
defence and for securing public safety, public order,
public morality and public health and if this tax was
reasonably required to raise revenue for these
purposes or for any of them, then section 1B is not to
[1976] A.C. 16 FOR EDUCATIONAL USE ONLY
1975 WL 44919 (Privy Council), [1976] A.C. 16, [1975] 3 All E.R. 81, [1975] 3 W.L.R. 232, (1975) 119 S.J. 528
(Cite as: [1976] A.C. 16)
be treated as contravening the Constitution.
In some cases it may be possible for a court to
decide from a mere perusal of an Act whether it was
or was not reasonably required. In other cases the Act
will not provide the answer to that question. In such
cases has evidence to be brought before the court of
the reasons for the Act and to show that it was
reasonably required? Their Lordships think that the
proper approach to the question is to presume, until
the contrary appears or is shown, that all Acts passed
by the Parliament of Antigua were reasonably
required. This presumption will be rebutted if the
statutory provisions in question are, to use the words
of Louisy J.:
'so arbitrary as to compel the conclusion that it
does not involve an exertion of the taxing power but
constitutes in substance and effect, the direct
execution of a different and forbidden power.'
If the amount of the licence fee was so manifestly
excessive as to lead to the conclusion that the real
reason for its imposition was not the raising of
revenue but the preventing of the publication of
newspapers, then that would justify the conclusion
that the law was not reasonably required for the
raising of revenue.
In their Lordships' opinion the presumption that the
Newspapers Registration (Amendment) Act 1971 was
reasonably required has not been rebutted and they
do not regard the amount of the licence fee as
manifestly excessive and of such a character as to
lead to the conclusion that section 1B was not
enacted to raise revenue but for some other purpose.
Was the revenue to be raised by the licence fees
required in the interests of defence or for securing
public safety, public order, public morality or public
health? Though there may be some taxing statutes
which state the purposes for which the revenue raised
will be applied, ordinarily they do *33 not. The
purposes stated cover a very wide field of
government expenditure and in the absence of any
indication to the contrary, their Lordships think it
right to presume that the revenue derived from the
licence fees was to be applied to these purposes. That
being so, in their opinion section 1B, in so far as it
requires the payment of a licence fee, is a provision
which comes within section 10 (2) of the Constitution
and which cannot therefore be treated as
© 2008 Thomson Reuters/West. No Claim to Orig. US Gov. Works.
Page 14
contravening it, even though it requires the payment
of the licence fee in the first place before publication
of a newspaper.
Section 3 of the Newspaper Surety Ordinance of
1909 (c. 319) made it unlawful for anyone to print or
publish a newspaper unless he had first given a bond
for $960, the equivalent of £200, for the payment of
any penalty imposed on the printer, publisher or
proprietor of the paper in respect of the publication of
any blasphemous or seditious libel, and for the
payment of any damages and costs awarded for libel.
The Newspaper Surety Ordinance (Amendment) Act
1971 added a new subsection, which was numbered 3
(2), to this section. It made it unlawful to print or
publish a newspaper unless in addition to the bond
for $960, $10,000 had first been deposited with the
Accountant General to satisfy any judgment of the
Supreme Court for libel. The subsection provided that
the deposit should at all times be maintained at that
figure and that it should be placed in a deposit
account and bear interest at the rate payable at the
Government Savings Bank. This was subject to the
following proviso:
'Provided however that the Minister responsible
for newspapers on being satisfied with the sufficiency
of the security in the form of a policy of insurance or
on a guarantee of a bank may waive the requirement
of the said deposit:'
So the printer and publisher of a newspaper can
either deposit $10,000 and be paid interest on it, or, if
he prefers it, take out a policy of insurance or obtain
a bank guarantee. The premium on such a policy will
of course cost him far less than the amount of the
deposit.
It was maintained by the respondent, and accepted
by Louisy J., Lewis C.J. and Peterkin J.A., that under
the proviso the Minister had uncontrolled discretion
to waive or not to waive the requirement of the
deposit. Their Lordships do not agree. In their
opinion the Minister, if satisfied with the sufficiency
of the security offered, must waive the payment of
the deposit. The word 'may' in the proviso, the
context shows, must be construed in that way. The
Minister is not given an unregulated and unfettered
discretion without guidelines. His discretion is
limited to determination of the sufficiency of the
security offered.
[1976] A.C. 16 FOR EDUCATIONAL USE ONLY
1975 WL 44919 (Privy Council), [1976] A.C. 16, [1975] 3 All E.R. 81, [1975] 3 W.L.R. 232, (1975) 119 S.J. 528
(Cite as: [1976] A.C. 16)
The third proposition of law agreed between counsel
was:
'Any law is constitutional which provides that no
person shall print or publish or cause to be printed or
published any newspaper unless he shall have
previously deposited with the Accountant General a
sum of $10,000 in cash or a bond for the like amount
from an established bank or insurance company, to be
drawn against in order to satisfy any judgment of the
court for libel against the editor or printer or
publisher or proprietor of the newspaper and to be at
all times maintained at the sum of $10,000.'
*34 This appears to amount to a concession by
counsel for the respondent at the trial that its claim
that section 3 (2) contravened the Constitution could
not be sustained. Louisy J. refused to accept this
proposition and he and all the members of the Court
of Appeal held that the requirement of a deposit of
$10,000 to meet damages for libel was a hindrance to
a newspaper's freedom of expression.
It can be argued that any expenditure, required by
law from those responsible for the publication of a
newspaper, is a hindrance to its freedom of
expression in that such expenditure must reduce the
resources of the paper which might otherwise be
available for increasing its circulation. Such an
argument might be advanced in relation to the
provision of a bond for $960 under the Ordinance of
1909.
In relation to section 3 (2), the question to be
determined is, in their Lordships' opinion, whether
that subsection was reasonably required for the
purpose of protecting the reputations and rights of
others. If it was, then by virtue of section 10 (2) of
the Constitution, nothing in it or done under its
authority is to be treated as contravening the
Constitution.
In their Lordships' opinion section 3 (2) clearly had
as its purpose the protection of the reputations and
rights of others. They do not agree with Lewis C.J.
that it is the right of action for libel which gives the
true protection to the injured person's reputation.
© 2008 Thomson Reuters/West. No Claim to Orig. US Gov. Works.
Page 15
Damages are awarded to a libelled person to
compensate him for the injury he has suffered. Unless
there is a reasonable prospect of his obtaining the
damages awarded to him and of payment of his costs,
he may be deterred from instituting proceedings. A
mere right of action is not likely to be regarded by
him as an adequate protection of his reputation.
Further. the fact that the deposit will be used to
satisfy a judgment for libel and that, if it is, it must be
replenished by them, is an inducement to the
publishers of a newspaper to take care not to libel and
to damage unjustifiably the reputation of others.
The effect of section 3 (2) was to increase the
amount available for the payment of damages above
that fixed by the Ordinance of 1909. Was that
increase reasonably required? It is not necessary to
repeat what has already been said as to the
determination of that question. No valid reason
appears for holding that the presumption that this Act
of the legislature of Antigua was reasonably required,
is rebutted.
In the circumstances section 3 (2) of the Newspaper
Surety Ordinance of 1909, inserted in that Ordinance
by the Newspaper Surety Ordinance (Amendment)
Act 1971, in their Lordships' opinion comes within
and is covered by section 10 (2) of the Constitution
and cannot therefore be treated as contravening the
Constitution.
For these reasons their Lordships will humbly advise
Her Majesty that this appeal should be allowed. The
respondent must pay the appellants' costs before this
Board and in both courts below.
Representation
Solicitors: Druces & Attlee; Wilson Freeman.
(R. W. L-S. )
(c) Incorporated Council of Law Reporting For
England & Wales
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