,
Where the subject of an action is an alleged violation of a provision of the Bill of Rights it is recommended that the action be commenced in the High Court. For example, when a person argues a violation of a right or freedom guaranteed under the Bill of Rights, he could start an action by writ claiming damages for any loss and damage sustained by him as a direct consequence of the violation. He might even seek an injunction or a declaration at the same time in order to protect that right ΟΙ freedom in the future. Given the importance of the issues
of the issues likely to be canvassed in such litigation, and also in accordance with practice elsewhere, the High Court is thought to be the appropriate forum for such issues.
27
It is likely that points relating to the Bill will be raised in the course of a large number of different cases. It would be impracticable for each case in which the issue of a violation on the Bill of Rights was raised for it to be stopped and the point in question removed into the High Court. For this reason we recommend that the courts dealing with such cases should be authorised to continue to do so, even when a constitutional point is raised.
28
As the law stands, to bring any action a person must have a 'locus st and i' i.e. must be in some way affected by the alleged wrong. This will also be true of actions under the Bill of Rights. Some countries have specified in their human rights legislation that a person must be 'affected' in order to bring a case. It is for the court s to decide whether a plaintiff is sufficiently 'affected' . If no provision of this kind is made it is arguable that the courts could interpret the ' locus1 requirement more broadly, and, for example, allow cases to be brought by persons who are interested in so far as they are members of society, but who have no stronger connection than that. This will not necessarily be so, but to avoid doubt
to avoid doubt it is recommended that a provision be included to specify that a plaintiff must be 'affected'. Such a provision would be in line with ICCPR Article 2(3) which provides that any person whose rights and freedoms as recognised in the ICCPR are violated should have an effective remedy.
29
The principal purpose of a Bill of Rights is to protect the individual from the abuse of power by the state and other public bodies. But it is also possible for right s to be infringed by a private person or by a corporate body. To ensure full protection the Bill would need to cover these We would therefore recommend that the Bill contain no
no restrictions over who can have
an action brought against them.
cases should
too.
4