Hope et Al v New Guyana Company Ltd et Al
| Jurisdiction | Guyana |
| Judge | Crane, J.A. |
| Judgment Date | 15 March 1979 |
| Neutral Citation | GY 1979 CA 1 |
| Docket Number | Civil Appeal No. 33 of 1976 |
| Court | Court of Appeal (Guyana) |
| Date | 15 March 1979 |
Court of Appeal
Crane, J.A.
Luckhoo, J.A.
Massiah, J.A.
Civil Appeal No. 33 of 1976
Dr. M. Shahabuddeen, S.C., Attorney General, and D. Sharma, Senior Legal Adviser, for the appellants.
Dr. F. Ramsahoye, S.C., Doodnauth Singh and A. Chase for the respondents.
Constitutional Law - Civil Rights (Freedom of expression) — Meaning of expressions “interference” and “hinder” in Constitution of Guyana Act, 12(1).
The problem which engages our attention is of great constitutional significance. At the conclusion of the hearing on the 8 th December last, I considered it fitting to remark that the like of it has never before been canvassed in these halls of justice. After several weeks of studying the problem, I still think so.
The matter concerns the guarantee of the fundamental right to the freedom of expression contained in art. 12(1) and may be as follows: In view of the fact that newsprint and printing equipment are imported and not manufactured locally, does the requirement by the executive of a licence to import them, directly or only indirectly encroach on the fundamental right of the freedom of the press to express itself, i.e., does the requirement of a licence import newsprint and printing equipment hinder enjoyment of the freedom of expression in art. 12(1) of our Constitution? In other words: Is the requirement of a licence to import newsprint a “prior restraint” on publication in keeping with the thinking of Blackstone the great English lawyer and oracle of the common law, who wrote in 1765:
“Liberty of the press consists in laying no previous restraints upon publications, and not in freedom from censure for criminal matter when published. Every freeman has an undoubted right to lay what sentiments he pleases before the public; to forbid this is to destroy the freedom of the press; but, if he publishes what is improper, mischievous, and illegal, he must take the consequences of his own temerity… To punish any dangerous or offensive writings, which, when published, shall on a fair and impartial trial be adjudged of a pernicious tendency, is necessary for the preservation of peace and good order, of government and religion, the only solid foundations of civil liberty.”
(See Blackstone's Commentaries, Vol. 4, pp.151–2)
Accordingly, as Blackstone saw it, freedom of speech and freedom of the press, which are both comprehended in freedom of expression, protected an individual from any prior restraint upon what he said. There was no need to obtain government approval or consent before a man expressed himself, and Government had no right to interfere with or to prevent anyone from writing, publishing and circulating a book or other pamphlet. Government could not keep ideas from being communicated, but it could, Blackstone thought, punish a man for what he said after he had said it. That was the doctrine of ‘prior restraint’ on the right to freedom of expression as explained by Blackstone. It is entrenched in all democratic institutions of free peoples and the idea behind it all is there would be less abuse of governmental power if persons are free to speak in criticism of Government and only made to undergo punishment for a distinct violation of the law. When the publication is in circulation for which punishment is sought to be inflicted, all the world can see whether Government is abusing its power and unjustly punishing a man merely for criticizing or whether there is proper enforcement of the law.
Art. 12 of our Constitution reads as follows:
“(1) Except with his own consent, no person shall be hindered in the enjoyment of his freedom of expression, that is to say, freedom to hold opinions without interference, freedom to receive ideas and information without interference, freedom to communicate ideas and information without interference and freedom from interference with his correspondence.
(2) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this article to the extent that the law in question makes provision –
(a) that is reasonably required in the interests of defence, public safety, public order, public morality or public health; or
(b) that is reasonably required for the purpose of protecting the reputations, rights and freedoms of other persons or the private reputations, right 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, the technical administration or the technical operation of telephony, telegraphy, posts, wireless broadcasting or television; or
(c) that imposes restrictions upon public officers.
In Sakal Papers (P) Ltd v India (1962) S.C.R. 842, it was held that freedom of the press is included in the phrase ‘freedom of expression’ because it is a “species of which freedom of expression is the genus”. That art. 12(1) encompasses freedom of the press cannot now be doubted; the advice recently given by their Lordships board in Attorney General & another v Antigua Times Ltd [1975] 3 All.E.R. 81, has dispelled any doubt about the matter, and it is for this reason we considered it so helpful as a time saving expedient, when the learned Attorney General conceded the point by abandoning the ground of appeal in which it was sought to contend that the respondent company was not a person within the meaning of art. 12(1).
On 30 th December 1971, and on 12th February 1972, the President of Guyana signed two trade orders (the impugned orders — see appendix to this judgment). Each was an amendment to a principal order and purported to be made under s. 5 of the Trade Ordinance, No. 34 of 1958 (now s. 5 of the Trade Act, Cap. 91:01). They were, the Trade (Caribbean Free Trade Association) Order No. 23 of 1968, and the Trade (Control of Import and Export) (No. 2) Order, No. 88 of 1963, that prohibited, respectively newsprint and printing machinery importation, save by licence. (See appendix)
S. 5(1) of the Trade Ordinance, No. 34 of 1958, insofar as it is relevant reads as follows:
“The Minister may by order provide:
(a) for prohibiting absolutely the importation or exportation of goods, or of any class or description of goods, from or to any country;
(b) for prohibiting the importation or exportation of goods, or of any class or description of goods, from or to any country except under the authority of a licence granted by the Competent Authority;
At the outset it is necessary for us as our initial hypothesis to have clearly in mind what we understand by the concept of the enjoyment of freedom of expression, and to that end, I think it is fitting that I make this observation: that though the basal ingredients of that concept are for all practical purposes identical in the Constitution of all freedom-loving states where democracy, as seen in the preamble to our Constitution, is founded upon the rule of law and respect for “the inherent dignity and the rights of all men” who seek the attainment of freedom, justice and peace in society, we, in the end, must interpret our own Constitution. We cannot avoid doing so.
In quest of the elucidation of the concept there is much to be gleaned from the writings of textwriters and from the judgments of the judgments of the Superior Courts of Commonwealth countries, and, more particularly, from the Supreme Court of India and the United States of America when, in the past, the occasions arose for them to interpret from their written Constitutions, the concept of freedom of expression; and the sum-total of what is to be gathered is the teaching that one has the right to express ones conviction and opinions freely, by word of mouth, writing, paint, picture or in any other manner. We see there is the idea involved in the concept of the liberty of not only expressing or propagating one's own views, but of publishing them by communicating or expressing them to others, and it is in this respect that the freedom of the press is so obviously included. It is clear what is inherent in the idea of freedom of expression in art. 12 is that there should be at least another party to whom one's ideas or information should be expressed or communicated because the term ‘expression’ in the concept involves the idea of publication and distribution or circulation as well as the right to receive the matter to be distributed or circulated. The position is accurately summed up in the oft-cited passage from the celebrated judgment of the Supreme Court of India in Romesh Thapper v. State of Madras (1950) S.C.R. 594, in which it is said of the concept under investigation:
“There can be no doubt that freedom of speech and expression includes freedom of propagation of ideas, and that freedom is secured by freedom of circulation . Liberty of circulation is as essential to that freedom as the liberty of publication. Indeed, without circulation the publication would be of little value.”
Art. 125 of the Constitution of the U.S.S.R. is also instructive in this respect. It reads:
“In conformity with the interests of the working people and in order to strengthen the socialist system, the citizens of the U.S.S.R. are guaranteed by law: (a) freedom of speech; (b) freedom of the press; (c) freedom of assembly, including the holding of mass meeting; (d) freedom of street processions and demonstrations.
These civil rights are ensured by placing at the disposal of the working people and their organizations printing presses, stocks of paper, public buildings, the streets, communications facilities and other material requisites for the exercise of these rights.”
See also, Jagan v. Burnham (1973) 20...
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