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Guardians of fundamental rights and freedoms

Guardians of fundamental rights and freedoms

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In St. Vincent and the Grenadines (SVG), we have what is known as the doctrine of separation of powers. This is a principle of good governance which is based on the rule of law and is an essential feature of our democratic society. This doctrine refers to the principal institutions of the state or arms of government (the legislature, the executive, and the judiciary) being clearly divided into separate branches in order to safeguard the rights and freedoms of citizens and to guard against tyranny.

The role of the legislature is to decide upon and enunciate policy. The role of the executive is to administer and implement that policy and the judiciary is empowered to review and strike down legislation that is inconsistent with SVG’s Constitution.

The doctrine of separation of powers prevents one individual or group of people from having the power to make law, to interpret and apply that law and to investigate and detect violations of that law. However, the doctrine as conceived in contemporary society does not always mean a complete separation between the different branches of government, as oftentimes this is impossible, not feasible or impractical.

There is often some overlap of powers and personnel, especially in relation to the legislature and the executive.

Unfortunately, there are many persons in society or persons in authoritative positions who do not always respect the rights and freedoms of others. Moreover, some laws currently exist in SVG or that were created which violate the rights and freedoms of others and/or are inconsistent with SVG’s Constitution. What can someone do who feels that their rights under SVG’s Constitution are being violated or are likely to be violated? They may go to the guardians of fundamental rights and freedoms, the judiciary, for redress.

According to section 16 of the SVG Constitution, “If any person alleges that any of the provisions of sections 2 to 15 inclusive of this Constitution has been, is being or is likely to be contravened in relation to him (or, in the case of a person who is detained, if any other person alleges such a contravention in relation to the detained person), then, without prejudice to any other action with respect to the same matter that is lawfully available, that person (or that other person) may apply to the High Court for redress”. If anyone is unsatisfied with the decision of the High Court, they may appeal the decision to the Court of Appeal of the Eastern Caribbean Supreme Court. If they are also dissatisfied with the decision of the Court of Appeal of the Eastern Caribbean Supreme Court, they may appeal the decision to the Privy Council, which is currently the highest court over St. Vincent and the Grenadines.

It is important that fundamental rights and freedoms should be protected by an impartial and independent judiciary. Although there is a close relationship between independence and impartiality, they are nevertheless separate and distinct values or requirements.

The Canadian case of Valente v R [1985] states that “Although there is obviously a close relationship between independence and impartiality, they are nevertheless separate and distinct values or requirements. Impartiality refers to a state of mind or attitude of the tribunal in relation to the issues and the parties in a particular case. The word “impartial”…connotes absence of bias, actual or perceived. The word “independent”…reflects or embodies the traditional constitutional value of judicial independence. As such, it connotes not merely a state of mind or attitude in the actual exercise of judicial functions, but a status or relationship to others, particularly to the executive branch of government, that rests on objective conditions or guarantees”.

Today, I encourage us to know more about our fundamental rights and freedoms under SVG’s Constitution, and the role of the judiciary in safeguarding those fundamental rights and freedoms.

Author: Jeshua Bardoo is a Vincentian Barrister-at-law and Solicitor. He is also the President of Equal Rights, Access and Opportunities SVG Inc. He can be contacted via email at [email protected]

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