THE EDITOR, Sir:
I HAVE read the editor's observation with respect to Frank Phipps' analysis. I'm not so sure, with respect, that Mr Phipps' analysis is correct or, better put, it would not produce the conundrum of which he speaks.
Our constitutions are unique in the sense that they have savings clauses, on which the Privy Council has offered guidance how they ought to be interpreted. However, the sections identified in the new Charter of Rights do what most modern constitutions or charter do: that is, rights are not created which are all absolute, but there are those which are qualified or limited. For example, the right to liberty or the right to life is subject, of course, to a variety of factors; one being if the limitation is in pursuit of a law. In the Christopher Coke case, the law is the Extradition Act which the legislature has enacted using the correct procedure.
Hence, I am struggling to appreciate the identified conundrum. In the United Kingdom, for example, there is a right to family life enjoyed pursuant to Article 8 of the Human Rights Act. However, Article 8 (2) provides for justifiable or proportionate interference if the objective being pursued falls within the specified list, for example, immigration control.
I applaud the QC for raising this issue, but in a sense, the Charter was drafted in a manner which reflects the infusion into human rights jurisprudence of the ideas of proportionality, and the fact that the State defines rights broadly into absolute, qualified and limited rights. When this is understood then we are not with a conundrum.